Delhi High Court
Dr. Golakiya Aayush ... vs The Director, National Board Of ... on 29 April, 2014
32
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2663/2014
DR. GOLAKIYA AAYUSH
PARSHOTTAMBHAL ..... Petitioner
Through: Mr Vaibhav Kalra, Advocate.
versus
THE DIRECTOR, NATIONAL
BOARD OF EXAMINATION ..... Respondent
Through: Dr. Rakesh Gosain, Advocate.
% Date of Decision : 29th April, 2014
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present writ petition has been filed challenging the communication
dated 11th March, 2014 as well as for a direction directing the respondent to
round off the marks of the petitioner in DNB General Medicine from 191.50
to 192 and for further direction to consider the case of the petitioner for
grace marks in accordance with Clause 4.3(iv) of the Brochure/Prospectus
issued by the respondent.
2. Mr. Vaibhav Kalra, learned counsel for petitioner submits that
respondent failed to appreciate that there is no bar or prohibition in the
Brochure of the respondent for rounding off the marks obtained by the
petitioner.
3. Mr. Kalra further states that if the marks of the petitioner are not
rounded off from 191.50 to 192, he will have to re-appear in the said
examination and would lose a crucial session.
4. Mr. Kalra relies upon a judgment of the Supreme Court in State of
U.P. & Anr. vs. Pawan Kumar Tiwari, AIR 2005 SC 658 wherein it has
been held "The rule of rounding off based on logic and common sense is: if
part is one-half or more, its value shall be increased to one and if part is
less than HALF then its value shall be ignored".
5. Mr. Kalra also relies upon a judgment of the learned Single Judge of
this Court in Jitender Singh vs. Govt. of NCT of Delhi and Ors. being
W.P.(C) 18076/2006 wherein it has been held that merely providing the pass
percentage would not tantamount to a prohibition against rounding-off.
6. Mr. Kalra further states that in the event the petitioner is granted
rounding off marks, he would qualify to appear in the practical examination.
7. On the other hand, Dr. Rakesh Gosain, learned counsel for
respondent, draws this Court's attention to a judgment of the Supreme Court
in Orissa Public Service Commission and Another vs. Rupashree
Chowdhary and Another, (2011) 8 SCC 108 wherein the judgment of State
of U.P. & Anr. vs. Pawan Kumar Tiwari (supra) has been distinguished.
The relevant portion of the judgment of Orissa Public Service Commission
and Another (supra) is reproduced hereinbelow:-
"7. The learned counsel appearing for the respondents during
the course of his arguments relied upon the decisions of this
Court in State of Orissa v. Damodar Nayak, State of U.P. v.
Pawan Kumar Tiwari, Union of India v. S. Vinodh Kumar and
Bhudev Sharma v. District Judge, Bulandshahr. On scrutiny, we
find that the findings recorded in the abovereferred cases are
not applicable to the facts of the present case. The facts and
findings recorded by this Court in the abovereferred cases are
distinguishable to the facts of the case in hand. Almost all the
aforesaid cases dealt with post or vacancies where it was
allowed to be rounded off to make one whole post.
Understandably there cannot be a fraction of a post.
xxx xxx xxx
10. ...............When emphasis is given in the Rule itself to the
minimum marks to be obtained making it clear that at least the
said minimum marks have to be obtained by the candidate
concerned there cannot be a question of relaxation or rounding
off.........."
8. Subsequently, the Supreme Court in Registrar, Rajiv Gandhi
University of Health Sciences, Bangalore vs. G. Hemlatha and Others,
(2012) 8 SCC 568 after considering the earlier case law has held as under:-
"12. No provision of any statute or any rules framed thereunder
have been shown to us, which permit rounding-off of eligibility
criteria prescribed for the qualifying examination for admission
to the PG course in MSc (Nursing). When the eligibility criteria
is prescribed in a qualifying examination, it must be strictly
adhered to. Any dilution or tampering with it will work injustice
on other candidates. The Division Bench of the High Court
erred in holding that the learned Single Judge was right in
rounding-off of 54.71% to 55% so as to make Respondent 1
eligible for admission to the PG course. Such rounding-off is
impermissible."
9. In rejoinder, learned counsel for petitioner submits that the
judgments of the Supreme Court in Orissa Public Service
Commission and Another and Registrar, Rajiv Gandhi University of
Health Sciences, Bangalore (supra) are distinguishable inasmuch as
the said cases pertain to selection or admission to a particular course
rather than the present case which pertains to qualification for
appearing in a practical examination.
10. Having heard the learned counsel for parties, this Court is of the
view that the judgment of the Pawan Kumar Tiwari (supra) has been
distinguished by the Supreme Court itself and has been held to be
confined to cases pertaining to posts or vacancies where rounding off
is allowed to make one whole post.
11. Consequently, the said judgment has no application to the facts
of the present case.
12. Even the judgment of this Court offers no assistance to the
petitioner as subsequent to the learned Single Judge's judgment, the
Supreme Court in Orissa Public Service Commission and Another as
well as Registrar, Rajiv Gandhi University of Health Sciences,
Bangalore (supra) has categorically held that when the eligibility
criteria is prescribed in a qualifying examination, it must be strictly
adhered to. In fact, in the aforesaid subsequent Supreme Court's
judgment, it has been categorically held that till there is a provision in
the statute or rule which permits rounding off of eligibility criteria, the
same cannot be done.
13. This Court is also of the opinion that as DNB is a super-
speciality course, an interpretation which lowers the standards or
which does not promote merit should be avoided.
14. Keeping in view the aforesaid subsequent Supreme Court's
judgments, present writ petition is dismissed, but with no order as to
costs.
MANMOHAN, J
APRIL 29, 2014
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