THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
WRIT APPEAL No.96 of 2021
JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The present writ appeal is arising out of order dated
06.01.2020 passed by the learned Single Judge in
W.P.No.1936 of 2019.
The facts of the case reveal that respondent No.1, who
belongs to SC category, has submitted an application pursuant to notification dated 21.10.2017 for appointment to the post of Physical Education Teacher (Urdu Medium) and she has obtained 29.592% marks. The terms and conditions of the advertisement provided for cut-off marks. For general category, the cut-off is 40%, for backward class 35% and for SCs and STs, the cut-off is 30%.
Undisputedly, the facts also reveal that the Public Service Commission was not able to fill up a single vacancy in the SC category, as there were no qualified candidates (SC women category). Respondent No.1 preferred a writ petition before this Court and the same has been allowed by the learned Single Judge. The order passed by the learned Single Judge reads as under:
"Learned counsel appearing for the petitioner contended that as per the notification issued by the respondents, the respondents have got every power to relax the minimum qualifying marks in respect of SC candidates when no SC candidates are available. The respondents are not considering the case of the petitioner on the ground 2 that she has not secured 30% marks. It is further contended that Clause 1 of Para VIII of notification prescribes the minimum qualifying marks for selection of OCs as 40%, BCs as 35%, SCs & STs as 30% and the minimum qualifying marks are relaxable in the case of SC/ST/BC at the discretion of the Commission. It is further contended that even though there is a vacancy which could not be filled up for want of suitable SC woman 3 candidate, the respondents are not relaxing the minimum qualifying marks. The petitioner has secured 29.592% marks, whereas the qualifying marks are 30%, therefore, in all fairness, the respondents ought to have taken into consideration 29.592% marks as that of 30% and qualified the petitioner by exercising powers under Clause 1 of Para VIII of the notification. It is further contended that the respondents have deleted three questions, for which, the petitioner has written correct answers. Therefore, it is prayed that appropriate orders be passed in the writ petition directing the respondents to round off the fraction of marks secured by the petitioner to the next equal number of 30% treating that she got qualified in the selection and consider her case for appointment to the post of PET (Urdu Medium) in the existing vacancy which could not be filled up for want of SC woman candidate.
Learned Standing Counsel appearing for the respondents contended that the respondents cannot relax the minimum qualifying marks as set out in the notification. In support of his contention, he placed reliance on the judgment of the Apex Court in Orissa Public Service Commission & another vs. Rupashree Chowdhary & another (Civil Appeal No.6201 of 2011) and contended that the Apex Court has found 4 fault with the rounding off of the aggregate marks, and hence, the case of the petitioner cannot be considered for rounding off the fraction of 29.592% to 30%. There are no merits in the writ petition and the same is liable to be dismissed.
Having considered the rival submissions made by the learned counsel on either side, this Court is of the view that the case of the petitioner has to be considered on two grounds; (1) The respondents could not fill up the post meant for SC (women) as there are no qualified candidates in that category; (2) The petitioner has secured 29.592% marks, whereas the qualifying marks are 30%. In the notification, it is clearly stated that the respondents have every power to relax the minimum qualifying marks in respect of SC/ST/BC. In the case on hand, as there are no qualified candidates in SC (Women) category, the respondents ought to have exercised their powers by relaxing the minimum qualifying marks secured by the petitioner from 29.592% to that of 30% by rounding off the fraction. The judgment relied on by the learned Standing Counsel cannot be applicable to the case on hand. The Apex Court has held that the Commission shall call for interview, the candidates who have secured not less than 45% marks in aggregate and a minimum of 33% marks in each paper in the main written examination and in that 5 context, the Apex Court held that the percentage of marks cannot be rounded off. In the case on hand, the Public Service Commission has got power to relax the minimum qualifying marks in respect of SCs, STs and BCs. As the 3 Public Service Commission is vested with such power, it ought to have exercised its power and relaxed the minimum qualifying marks. More so, when there are no qualified and eligible candidates, the Public Service Commission can consider the case of the petitioner by rounding off the qualifying marks from 29.592% to 30%, so that she becomes qualified for appointment to the post of PET.
Accordingly, the Writ Petition is allowed and the respondents are directed to consider the case of the petitioner for appointment to the post of PET (Urdu Medium) by rounding off the fraction of marks from 29.592% to 30%. No costs.
Miscellaneous petitions, pending, if any, shall stand closed."
Learned counsel for the appellant - Telangana State Public Service Commission has stated before this Court that the cut-off marks could not have been rounded off to 30%, as respondent No.1/writ petitioner has secured 29.592% marks only keeping in view the judgment delivered by the Hon'ble Supreme Court in Orissa Public Service Commission and another vs. Rupashree Chowdhary and another1 and, therefore, the judgment delivered by the learned Single Judge is bad in law.
The learned Single Judge has taken care of the aforesaid judgment and has rightly arrived at a conclusion that the respondents were not able to fill up a single post meant for SC women and there was no other qualified candidate in that particular category. He has also taken note of the fact that respondent No.1/writ petitioner has secured 29.592% marks and the qualifying marks were 30%. He has also taken note of the fact that in the notification there was a 1 Civil Appeal No.6201 of 2011 4 power to relax the minimum qualifying marks in respect of SCs and STs and Backward classes.
In the considered opinion of this Court, the learned Single Judge was justified in directing consideration of the candidature of respondent No.1 keeping in view the relaxation clause specifically in the light of the fact that no other SC women was available by rounding off the qualifying marks from 29.592% to 30%. This Court does not find any reason to interfere with the order passed by the learned Single Judge.
The writ appeal is accordingly dismissed.
Miscellaneous petitions, if any, pending in this writ appeal shall also stand dismissed. There shall be no order as to costs.
__________________________________ SATISH CHANDRA SHARMA, CJ ______________________________ A. RAJASHEKER REDDY, J 28.10.2021 ES