Orissa High Court

Manjulata Maharana vs Collector -Cum- Chairman on 17 February, 2023

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                      W.P.(C) No. 5248 of 2012

      An application under Articles 226 and 227 of the
      Constitution of India.
                                  ------------------

      Manjulata Maharana                         ......      Petitioner

                                      -Versus-

      Collector -cum- Chairman,
      Sarva Sikhya Abhiyan, Balasore
      & Others                       .......              Opp. Parties

      Advocate(s) appeared in this case:-
      ________________________________________________________

         For Petitioner       :       M/s. S.K. Das &
                                      Mr. S.K.Mishra, Advocates.

        For Opp. Parties :      Mr. B. Mohanty,
                                Standing Counsel for
                                School and Mass Education
                                Department.
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                             JUDGMENT

th 17 February, 2023

SASHIKANTA MISHRA, J.

The petitioner has approached this Court with

the following prayer:

"It is, therefore, prayed that Hon'ble court may be pleased enough to admit this writ petition, call for the records and after hearing the parties allow the same by quashing provisional merit list of sikhya sahayak for the year 2011-12 under Annexure-3 and further be pleased to issue a writ of mandamus of any other appropriate writ(s) or direction (s) directing to the opp.party to adopt correct principle for calculation of marks which is followed by other districts.

And to pass any other appropriate writ or direction as this Hon'ble court deems fit and proper. And for this act of kindness petitioner as in duty bound shall every pray."

2. The case of the petitioner is that pursuant to

an advertisement published on 09.12.2011 to fill up the

vacancies in the post of Sikshya Sahayak for Balasore

district, the petitioner submitted her application. The

petitioner has +2 and CT qualification as required. On

07.03.2012, a provisional merit list was published and

objection was invited, wherein the name of the petitioner

found place at Serial No. 77 under +2 Arts CT category for

Soro Education District. As per letter dated 17.01.2011

(copy enclosed as Annexure - A/2 to the counter affidavit

filed by opposite party No.2), the computation of marks is

to be as follows;

"Regarding computation of the % of marks of B.Ed. candidates the aggregate of marks

secured by the candidates in pass subject (for pass candidates) & pass and honours marks in case of honours candidates and B.Ed marks may be taken into account. Similarly aggregate of the marks at +2 and C.T. level may be taken into account for computation of the % of marks in case of +2 C.T. level may be taken into account for computation of the % of marks in case of +2 C.T. candidates. Marks secured in extra optional, foundation course and ancillary course shall be excluded from computation of aggregate of marks."

According to the petitioner, the above method

entails taking the percentage of marks of +2 and CT

examinations and to find out the mean thereof. However,

the opposite party authorities adopted a wrong procedure

for quantification of the percentage of marks by adding

the marks secured in both examinations divided by the

maximum marks secured in both the examination and

multiplying the same by hundred. Under such

circumstances, the petitioner's final percentage of marks

was unduly reduced and as a result of which, her name

did not find place in the final merit list.

3. The opposite party No. 2 has filed a counter

affidavit justifying the calculation of the marks. It is

specifically stated under paragraph-5 of the counter

affidavit as follows:

"5. That, it is humbly submitted that the Govt. of Odisha in School & Mass Education Department have instructed in its Letter No. 1192/SME, dated 17.01.2011 in Clause-3 that the aggregate of the marks at +2 and CT level may be taken into account for computation of the percentage (%) of marks in case of +2, CT candidates.

It implies that the computation of percentage (%) of marks will be calculated taking into account the aggregate of marks secured by a candidate at +2 level and at the CT level. Mathematically, it implies as follows: Marks secured at +2 Level + Marks secured at CT level x 100 Maximum marks at +2 level + Maximum marks at CT Level"

4. An additional counter affidavit was also filed

reiterating the same facts specifically indicating that as

the petitioner secured 67.73% marks, her name could not

be considered for selection.

5. Further affidavit was filed by the District

Project Coordinator, Samagra Shiksha, Balasore again

justifying the method employed for calculation of marks. It

is also stated that even applying the method suggested by

the petitioner she does not qualify inasmuch as the last

person employed under the SEBC(W) category had

secured 68.03%, which is more than the percentage of

marks secured by the petitioner

6. The petitioner filed a rejoinder to the counter

refuting the averments made in the counter affidavits. It is

categorically submitted that in the affidavit filed by the

District Project Coordinator though the method suggested

by the petitioner has been employed yet the comparison

with marks of other candidates as has been made therein

is entirely fallacious inasmuch as the percentage of marks

secured by the said candidates has not been calculated as

per the method suggested by the petitioner.

7. Heard Mr. S.K. Das, learned counsel for the

petitioner and Mr. B. Mohanty, Standing Counsel for

School and Mass Education Department.

8. Mr. Das would contend that the dispute lies

in a narrow compass inasmuch as the same relates to

proper methodology of calculation of the marks as

required for selection of candidates. According to him the

requirement being to ascertain the percentage of marks,

ordinary arithmetic suggests that the percentage of marks

secured by the candidates in +2 and CT has to be taken

and the mean thereof determined. This, according to Mr.

Das, is the correct method of calculation as required by

the guidelines issued by the Government. Mr. Das

submits that similar method has been followed in other

districts such as, Sambalpur and Balangir. Copies of the

draft lists of candidates of said districts are enclosed as

Annexure-4 series. A perusal of the draft list of

Educational District of Sambalpur, published on

16.03.2012, shows that the following principles was

adopted for calculation of marks:

"1. Graduate & B.Ed. Candidates :

% of marks in Degree (excluding Ancillary & Foundation Courses) + % of marks in B.Ed.

2. Intermediate & CT Candidate:

% of +2 marks (excluding extra optional) + % of mark in CT."

Similarly in case of Bolangir as per

Notification dated 14.03.2012 the following principle was

adopted for calculation of marks:

"a. Pass candidate :- Percentage of Pass Marks in Degree + Percentage in B.Ed.

b. Honours Candidate : Percentage of Pass & Honours + Percentage in B.Ed.

c. CT Candidates :- Percentage of +2 Marks (Excluding extra Opt.) + % of CT marks.

d. For SC, ST & PH, untrained candidates :- Percentage in +2 Exam / Percentage in Degree Exam."

9. After going through the guidelines and the

principle followed in the other districts, this Court finds

force in the submission of Mr. Das that the method of

calculation of percentage of marks for the purpose of

selection is erroneous. Moreover, different districts cannot

adopt different methodologies of selection under the same

guidelines issued by the Government.

10. Since this Court holds that the methodology

adopted in calculation of the final percentage of marks is

erroneous, the natural corollary of the same would be to

quash the entire select list. However, such extreme step

need not be undertaken in view of the fact that this Court

by order dated 03.12.2021 had directed as follows:

xx xx xx Considering the rival submissions, it is directed that the result of selection process pursuant to the advertisement dated 09.02.2011, may be published which shall abide by the result of the writ petition. One post as has been kept vacant for the petitioner shall continue to remain vacant till disposal of the writ petition.

Xx xx xx"

Since one post has been kept vacant for the petitioner, her

engagement against the same shall not disturb the

engagement of the other candidates.

11. For the foregoing reasons therefore, the writ

application is allowed. The opposition party authorities

are directed to recalculate the marks of the petitioner as

per observations made in this judgment and to take

necessary steps to engage her against the post already

kept vacant for her as early as possible, preferably within

a period of two months from the date of communication of

this order or on production of certified copy thereof by the