Babita Kumari vs Govt. Of N.C.T. Of Delhi And Ors.
2001 Latest Caselaw 920 Del

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This writ petition is filed by the petitioner seeking for a direction to the respondents to appoint the petitioner to the post of Primary Teacher/Asst. Teacher as she was selected by them being eligible and qualified.

2. The respondent No. 2, on 11.6.98, issued an advertisement calling for applications from intending candidates for appointment to the post of Primary Teachers/Assistant Teachers, in the school run by the Municipal Corporation of Delhi, New Delhi Municipal Council and Government of National Capital Territory of Delhi respectively. The petitioner being eligible and qualified for such appointment, submitted her application. The petitioner is a Science Graduate from Magadh University, Bodh-Gaya, Bihar and also secured first class in B.Sc. (Hons.) Zoology Course C from the said university. In support of the said claim of the petitioner, a mark-sheet of the petitioner relating to her B.Sc. (Hons.) examination is placed on record. The petitioner was directed by respondent No. 2 to appear before it for her selection. Pursuant to the said notice the petitioner appeared before respondent No. 2 and after verification of the documents, the respondent No. 2 recommended the name of the petitioner for appointment as Primary Teacher. The said recommendation was made in the month of September, 1999. However, the petitioner received another letter from respondent No. 3 calling her for verification of the documents. The petitioner reported before the respondent No. 3 when she was informed that her appointment has been withheld as certain objections have been raised regarding her marks of graduation. Upon verification of her documents, the respondent No. 3 held that the score of the petitioner was less than the cut-off marks of 53.21% and on the said ground the candidature of the petitioner was rejected although she was earlier selected by respondent No. 2. Being aggrieved by the aforesaid action, the present petition is filed.

3. I have heard the learned counsel appearing for the parties. On the basis of the rival submissions of the counsel appearing for the parties and in the light of the records it is apparent that the candidature of the petitioner was rejected on the ground that her score was less than the required cut-off marks of 53.21% as according to the respondents in calculating the score of the candidates, the marks of B.Sc. (Hons.) and subsidiary subject both have to be taken into consideration. According to the petitioner since she had Honours in her graduation her score was to be calculated for the said examination on the basis of marks obtained by her in the Honours subjects only, whereas according to the respondents, the marks of B.Sc. (Hons.) and subsidiary subjects both have to be taken into consideration. It is stated on behalf of the respondents that on the earlier calculation her score was 53.34% when marks of only Honours subjects were considered, which were higher to minimum cut-off score of 53.21% under U.R. category of selected candidates for the post of Primary Teacher in MCD. However, after re-calculation, on the basis of the formula of calculating the score of the candidates in both Honours and subsidiary subjects, her score comes to 52.26%, which is below the minimum cut-off score of 53.21% and, therefore, show was not found eligible for the post of Primary Teacher in MCD and her selection was withdrawn and cancelled by the respondent No. 2.

4. The aforesaid stand taken by the respondents in withdrawing the selection of the petitioner in cancelling her selection appears to me to be without merit and unjustified. The petitioner admittedly had Honours in B.Sc. in which the petitioner has scored first class marks. The certificate issued by the university authorities corroborates the aforesaid position. Since the petitioner had Honours in her B.Sc. the marks obtained by her in the Honours course were relevant and were to be considered by the respondents. So far the subsidiary subjects are concerned, the same have no relevance since the candidate having Honours gets the Honours degree on the basis of the marks scored only in the Honours subjects. For getting the said degree the marks obtained by the candidate in the subsidiary subjects are not counted at all. Therefore, while calculating her score the respondents illegally considered the marks obtained by her in subsidiary subjects also as it was permissible for the respondents to consider only the marks obtained by her in the Honours subjects. So computed and calculated the petitioner has to her credit more than the minimum cut-off score laid down by the respondents under U.R. category of selected candidates. If the marks obtained by the petitioner in the Honours subjects are considered, she has higher than the minimum cut-off score on the basis of which the petitioner was selected and her name was also recommended. The policy adopted by the respondent No. 2/Board in calculating the marks scored by the candidate in the Honours and subsidiary course in against the established norms as is laid down in a decision of this court in SHIVESH KUMAR JHA v. THE N.C.T. OF DELHI AND ORS. reported in 2001 I.A.D. (Delhi) 442 and also in a decision of Patna High Court in MRS. MADHU SINHA v. STATE OF BIHAR reported in 1998 (1) PLJR 17. In the decision of Patna High Court, it was held that since the respondents have taken into account the total marks including optional papers for calculating the points of the candidate at graduation level, such calculation was not appropriate, otherwise the same would lead to anomaly and that such procedure will make not only an Honours student equivalent to a Pass Course, but will result to downgradation of class inspite of giving a higher class by the University in favor of a person. The aforesaid decision was followed by this court in Shivesh Kumar Jha's case (supra). In my considered opinion the ratio of the aforesaid decisions squarely applies to the facts of the present case. The petitioner had taken up Honours Course in her graduation and had obtained first class in the aforesaid Honours Course. Since she was a Honours student the marks obtained by her in subsidiary subjects were not computed even by the University. The Honours student while studying the Honours course necessarily gives more emphasis on the Honours subjects so as to obtain good results in the Honours subjects, which is calculated for giving the Honours degree. So far such student is concerned, marks obtained in the subsidiary subjects have no relevance at all. The respondents, therefore, should have calculated only the marks obtained by the candidate in the Honours subjects when the candidate possesses a Honours degree. On calculation of the marks of the petitioner on that basis, the petitioner succeeded and her name was recommended for selection. However, later on following an procedure of calculating the marks obtained in subsidiary subjects along with Honours subjects, the petitioner was downgraded thereby creating an anomalous position. By resorting the said procedure the respondents have made two unequals equal, for a student of Honours course stands on a different footing from those who have only the pass course and the student of the pass course would definitely get advantage over the Honours course student, for the Honours course student put more emphasis on the Honours subjects than the subsidiary subjects. The procedure followed is illegal and unjustified. Accordingly, I hold that the petitioner is entitled to calculation of marks at the graduation standard on the basis of marks obtained in the Honours papers only, she having passed the degree with Honours. If such marks are alone calculated, the petitioner stands selected as her name was already recommended by the Board on the basis of such calculations.

5. In that view of the matter, the writ petition stands allowed. The respondents are directed to appoint the petitioner in one of the posts of Primary Teachers in one of its schools. The appointment shall be given immediately subject to compliance of necessary requirements/formalities by the petitioner for such appointment and the respondents shall give her notional seniority from the date from which the person with lesser marks was appointed by the respondents. However, the petitioner shall not be entitled to any salary or allowance for the past period and would be entitled to salary and wages only from the date she joins the post. The writ petition stands disposed of in terms of the aforesaid observations and directions.