Orissa High Court

Dhurtimaya Behera & Another vs State Of Odisha And Others on 24 February, 2023

     IN THE HIGH COURT OF ORISSA AT CUTTACK
  WP(C) Nos. 14172, 15229, 15268 and 15320 of 2018

Applications under Articles 226 & 227 of Constitution of
India.

                      ---------------
WP (C) No. 14172 of 2018

Dhurtimaya Behera & another             ....      Petitioners

                          -versus-

State of Odisha and Others      ....             Opp. Parties

WP(C) No. 15229 of 2018

Ashok Kumar Sahoo               ....               Petitioner

                          -versus-

State of Odisha and Others      ....             Opp. Parties

WP(C) No. 15268 of 2018

Jayadev Sahoo and others         ....             Petitioners


                           -versus-

State of Odisha and Others      ....              Opp.Parties

WP(C) No. 15320 of 2015

Swati Mukta and others          ....              Petitioners

                          -versus-

State of Odisha and Others      ....           Opp. Parties


Advocate(s) appeared in these cases:-

                                             Page 1 of 20
 For Petitioners    : Mr. S.P. Mishra (Sr. Advocate), R.K.Rout,
                     R. Acharya, A.K.Dash, N. Barik S.Hidayatullah
                     & P.K. Mishra, Advocates.
                                   Vs.
For Opp. Parties   :   Mr. S. Parida,
                       (Sr. Standing Counsel for School and Mass
                       Education Dept.)
                       Mr. B.K.Sharma, A.U.Senapati, S.Palei,
                       S.K.Singh, S.Das & A.Panda, Advocates
                                              (For O.P. No.3)
                       [ in WP(C) No. 14172 of 2018]
For Petitioner     : M/S. U. C. Behura & P.Dutta,
                     Advocates
                                  Vs.
For Opp. Parties   :   Mr. S. Parida,
                       (Sr. Standing Counsel for School and Mass
                       Education Dept.)
                       Mr. B.K. Sharma, Advocate
                                        (for O.P. No.3)
                       [ in WP(C) No. 15229 of 2018]
For Petitioners    : M/S. U. C. Behura & P.Dutta,
                     Advocates
                                  Vs.
For Opp. Parties   :   Mr. S. Parida,
                       (Sr. Standing Counsel for School and Mass
                       Education Dept.)
                       Mr. B.K. Sharma, Advocate
                                        (for O.P. No.3)
                       [ in WP(C) No. 15268 of 2018]
For Petitioners    : M/S.U. C. Behura & P.Dutta,
                     Advocates
                                   Vs.
For Opp. Parties   :   Mr. S. Parida,
                       (Sr. Standing Counsel for School and Mass
                       Education Dept.)
                       Mr. B.K. Sharma, Advocate
                                        (for O.P. No.3)
                     [ in WP(C) No. 15320 of 2018]
__________________________________________________________

CORAM:

                                                    Page 2 of 20
            JUSTICE SASHIKANTA MISHRA

                             JUDGMENT

th 24 February, 2023

SASHIKANTA MISHRA, J.

All these writ petitions involve identical facts and

question of law. As such, they were heard together and are

being disposed of by this common judgment. Since the

facts of each of these cases are identical, the details of only

one writ petition, i.e. WP(C) No.14172 of 2018 is referred to

for convenience.

2. Pursuant to an advertisement issued by the Odisha

Adarsha Vidyalaya Sangathan (OAVS) inviting applications

to fill up the post of Principal and teaching posts of various

disciplines in the Adarsha Vidyalayas of the State, the

petitioners possessing Bachelor's Degree in Music from

Utkal University of Culture submitted their applications.

The petitioners being found eligible were issued admit

cards to appear in the Computer Based Test comprising

three parts. As per the modalities laid down in the

advertisement, the candidates were required to score 13

marks in aggregate in Part-I of the outline Test (CBT) for

the Part-II and III tests being evaluated. All the petitioners

claim to have secured more than the minimum required

mark in Part-I and therefore, they were expecting to be

called upon to appear in the performance test as well as

interview. However, as against the vacancy of 115 posts

only 30 candidates were called to attend the performance

test and interview held on 09.08.2018. Alleging that the

petitioners were wrongly deprived of their right to appear

in the performance test and interview, the petitioners have

approached this Court in the present writ petitions with

the following prayer:-

"The petitioners have, therefore, prayed that this Hon'ble Court may be graciously pleased to admit the writ petition, issue a RULE NISI calling upon the Opp. Parties No.2 & 5 to show cause as to why the list prepared under Annexure-6 with regard to the vacant post of music teachers shall not be caused to be modified to include the name of the petitioners to appear in the performance test and interview pursuant to Annexure-1 along with the list prepared under Annexure-6 and if the Opp. Parties no.2 & 3 fail to show cause or show insufficient cause then the said rule be made absolute by directing the O.P. No.2 & 3 to modify the list under Annexure-6 by including the name of the petitioners to appear in the performance test and interview along with the list under Annexure-6 as per the advertisement under Annexure-1 for 115 posts.

And for this act of kindness, the petitioners shall as in duty bound, ever pray."

3. Counter affidavit has been filed by opposite party nos.

1 and 2, refuting the claim of the petitioners. It is stated

that 417 candidates had applied for the post of Music

Teacher and all of them were allowed to appear in Part-I

Online test. Thereafter, evaluation of Part-II and III was

made and the cut-off mark was fixed by the committee

constituted for the purpose as per the advertisement for

the purpose of elimination. Since the petitioners secured

less than the cut-off marks decided by the selection

committee, they were not called upon for document

verification, performance test and interview.

4. The petitioners have filed a rejoinder to the counter

questioning the fixation of cut-off marks. It is stated that as

per the advertisement, cut-off marks have to be fixed for

Computer Based Test (CBT) and interview separately. It is

further stated that according to the advertisement, the

candidates who qualify in Part-I of CBT are also entitled to

appear in performance test and interview. It is further

stated that the committee was not competent to fix cut-off

marks not being the committee constituted by the

Government for the purpose. It is also stated that Music

being a performing art, the merit of a candidate cannot be

evaluated without holding the performance test and that

merely on the basis of performance in the CBT, proper

assessment of the merit of a candidate for Music discipline

could not have been done in the manner done by the

authorities.

5. The opposite party nos. 1 and 2 have filed a reply to

the rejoinder reiterating the stand that even if a candidate

qualifies in Part-I test, he cannot be short listed for

interview and performance test unless he secures marks

above the cut-off fixed by the committee. It is further

reiterated that the committee was fully competent to fix the

cut-off marks and took an informed decision in such

respect. It is however admitted that in the first phase of

recruitment held during 2016, the marks secured in Part-I,

II and III of the CBT was taken into account as per decision

of the committee, but for the recruitment during 2017-18,

only the marks secured in Part-II and III were taken.

6. The petitioners by way of an additional affidavit have

enclosed a copy of the advertisement no.1 of 2015 to state

that in the said recruitment process marks secured by

candidates in Part-I, II and III of the CBT were taken into

account for fixation of the cut-off marks.

7. The opposite party no.2 has also filed an additional

affidavit reiterating all the facts already averred in its

counter and justifying the non-inclusion of the petitioners

in the final select list.

8. Heard Mr. S.P. Mishra, learned Senior Counsel along

with Mr.S. Mishra and Mr. U. C. Behera, learned counsel

appearing for the petitioners and Mr. S. Parida, learned

Senior Standing Counsel for the School and Mass

Education Department. Also heard Mr. B.K. Sharma,

learned counsel appearing for the opposite party no.3, i.e.,

the recruiting agency.

9. Leading the arguments on behalf of the petitioners in

all the writ petitions, Mr. S.P.Mishra contends that the

process of selection adopted by the authorities is contrary

to the procedure laid down in the advertisement itself.

Referring to the advertisement, copy of which is enclosed as

Annexure-1 to the writ petition, Mr. Mishra has argued

that as per Clause-8.6, Part-I of the test is qualifying in

nature and if a candidate secures the minimum marks

fixed, his other papers namely, Part-II and III will be

evaluated. The Clause also provides that a performance

test of 20 marks will be conducted separately and there will

be an interview of 30 marks. However, it provides that for

preparation of the final merit list only Part-II and III of the

CBT shall be considered. Mr. Mishra argues that this is

contrary to the selection procedure laid down under

Clause-7 (a) of the advertisement, which provides that the

candidates will be selected on the basis of their

performance in CBT, interview and performance test put

together. Since Clause-7 lays down the selection procedure,

the same shall prevail upon Clause-8.6, which provides

only the scheme of examination. Mr. Mishra has further

referred to the order of the Government dated 02.03.2017

(copy enclosed as Annexure-B/2 to the counter) whereby

the committee for recruitment of Principal and Teachers for

the OAVs was re-constituted. According to Mr. Mishra, the

meeting of the committee held on 12.04.2018, the copies of

the minutes of which are enclosed as Annexure-C/2 to the

counter, was presided over by the Principal Secretary to

Government in S & ME Department, who is not a member

of the committee as constituted. In any case, the cut-off

marks fixed by the committee, i.e., 35% and above for

General candidates and 30% and above for reserved

category candidates is for CBT only and not for the final

merit list. Even otherwise, the cut-off marks was fixed after

initiation of the recruitment process of which the

petitioners were in the dark. There is no bar prescribed in

the advertisement to take the marks of all the three papers

of CBT to decide the cut-off marks.

10. Per contra, Mr. Sandeep Parida submits that the

authorities have strictly followed the modalities laid down

in the advertisement, particularly under Clause-8.6 and

therefore, no illegality or impropriety was committed. Mr.

Parida further contends that the advertisement confers

power on the authority concerned to fix cut-off marks for

both CBT as well as interview. Therefore, the decision of

the committee cannot be questioned on the ground that the

candidates were not aware of the same. It is further argued

that the committee as constituted by the Government vide

order under Annexure-B/2 had met to fix cut-off marks

and the Principal Secretary was only an attendee. He being

the senior most officer present, it was mentioned out of

courtesy in the minutes that he had presided over the

meeting. Since all the members of the committee were

present, the competency of the committee cannot be

questioned. Summing up his arguments, Mr. Parida

submits that the petitioners having secured less than the

cut-off marks fixed by the committee were rightly not called

for the performance test and interview.

11. Be it noted at the outset that in so far as the

petitioners in W.P.(C) No.14172 of 2018 are concerned,

they were permitted to attend the performance test and

interview during pendency of the writ petition as per order

dated 06.08.2018 passed in I.A.No.11867 of 2018.

However, the result has not been published as yet.

12. The main grievance of the petitioners as evident from

the foregoing narration is not inviting to them to appear in

the performance test and interview. Both sides have relied

upon the provisions of the advertisement in support of

their contentions. It would therefore be apposite to refer to

the relevant clauses, namely, Clause-7 and Clause-8.6 of

the advertisement, both of which are quoted herein below:

"7. SELECTION PROCEDURE:

a) Candidates will be selected on the basis of their performance in Computer Based Test (CBT) interview and Performance Test as applicable and specified in these modalities put together. The OAVS reserves the right to decide the cut off marks in CBT and interview separately.

b) However, the mode of selection for all the above posts will be at the sole discretion of OAVS.

c) The decision of the OVAS the mode of selection to the above posts and eligibility conditions of the applicants for interview shall be final and binding. No correspondence will be entertained in this regard.

d) The Online Question Paper will be bilingual (i.e., English & Odia Languages Only).

e) The candidates will be required to report at the examination centre at least 1 ½ Hours (90 minutes) before the commencement of online examination. Candidates coming late for the test will be allowed.

f) Time Schedule may change depending upon number of applications received for a particular post.

8.6. MUSIC TEACHER:

The online test will comprise of Part-I, Part-II and Part-III. All the questions will be Multiple Choice Questions. The test will be of 200 minutes duration. Each question will carry 1 mark. There will be negative marking of 0.25 marks for each wrong answer.

 Part-I of the question paper will consist of 40 Multiple Choice Questions in the subjects English (20) and Odia (20) carrying 1 mark each.

 Part-II of the test will comprise of 30 questions each in Current Affairs and Reasoning.

 Part-III of the test will comprise of 100 subject related multiple chose questions.

 Part-II and Part-III of the test of the candidate will be evaluated only if he/she qualifies in Part-I securing 5 marks each in English and Odia subjects and 13 marks in aggregate.

 A performance test of 20 marks will be conducted separately.

 There will be an interview of 20 marks.

 For preparation of the final merit, the weighted evaluation scheme shall be test 50% (Parts-II & III), Performance Test 20% and interview 30%."

13. According to the stand taken by the opposite

parties in their counter, the petitioners were not called to

attend the performance test or interview, only because

they secured less than the cut-off marks in Part-II and III

of CBT. Thus, in order to decide the cut-off marks, only

the marks secured by the candidates in Part-II and III of

CBT were taken. Such action is sought to be justified by

referring to the provision under Claus-8.6. A careful

reading of the provision would reveal the following:-

(i) The CBT (Online test) shall comprise of Part-

I, II & III.

(ii) The marks secured in Part-II and III shall be

evaluated only if the candidate qualifies in Part-I.

(iii) Thereafter, performance test of 20 marks

will be conducted separately.

Clause-7 provides that the OAVS reserves

the right to decide the cut-off marks in CBT and

interview separately.

The question is, what should be the mode of

determining the cut-off marks of CBT. In other

words, what would be the implication of the

expression "cut-off marks in CBT" as used in

Clause-7?

As already stated, CBT comprises of Part-I, II and III.

There is nothing in the advertisement to show that while

fixing cut-off marks the marks secured in Part-I of the CBT

shall be ignored. What has been provided under Clause-8.6

is only to the effect that the papers in Part-II and III shall

be evaluated only if the candidate qualifies in Part-I. In

other words, Part-I is a qualifying test for the purpose of

evaluation of Part-II and III. This does not, ipso facto, mean

that while determining the cut-off marks for CBT, Part-I

would be left out. This would strongly militate against the

expression "cut-off marks in CBT" employed in Clause-7

(a), more so as it is provided that candidates will be

selected on the basis of their performance in Computer

Based Test interview and performance test 'put together'.

Undoubtedly, the final merit list has to be prepared on the

weighted evaluation scheme by taking performance in Part-

II and III, performance test and interview in the order of

50%, 20% and 30% respectively. Thus, from the scheme of

examination under Clause-8.6, the exclusion of marks of

Part-I of CBT is for the purpose of preparation of final merit

list but not for fixation of cut-off marks. In the meeting of

the committee held on 12.04.2018, there is nothing to

indicate that the cut-off marks so fixed by it was intended

to be applied only to the performance of the candidates in

Part-II and III tests of CBT. As already stated, the

advertisement also does not so provide. It would appear as

if the authorities have misread the provision of Clause-8.6

and applied the same for the purpose of determining cut-off

marks. Such being not the intention of the recruiting

authority as manifest in the relevant clauses of the

advertisement referred to hereinbefore, the action of the

authorities in applying the cut-off marks fixed by the

committee, only to Part-II and III of the CBT of the

candidates cannot be justified. It is clear from the extract of

the provisional combined merit list (copy enclosed as

Annexure-B/2) that the marks of only Part-II and III had

been taken and as the same is below the cut-off marks

fixed by the committee, i.e., 35% and 30% as the case may

be, the candidates were not allowed to participate in the

performance test. This Court is therefore, of the considered

view that the methodology adopted by the authorities in

short listing candidates for attending the performance test

and interview is contrary to the provision of the

advertisement and hence, cannot be sustained.

14. In the additional affidavit, the following has been

stated under paragraph-10.:-

"That, it is humbly submitted that to sum up, during the process of recruitment the candidates are selected on the basis of their eligibility or performance at different stages of activities.

(i) While filling up of the online from, the candidate has to satisfy that he/she is eligible for the post from qualification as well as age point of view.

(ii) In CBT, part-I is qualifying one to prove one's mastery over language-English, Odia. Part-II & Part-III of CBT measures the knowledge of the applicants in current affairs and content in the related subjects.

(iii) In performance test of music the candidate has to expose his/her skill or proficiency in performing music-instrumental as well as vocal.

(iv) In interview, the candidate's personality is judged. It also measures his/her ability to express he matter convincing which is a requisite for any candidate to hold a post."

15. This Court feels to understand the rationale behind

such evaluation of the candidates. It must be remembered

that the post of a Music Teacher or any other performing

arts cannot be compared lock, stock and barrel with the

teacher of any other discipline. It goes without saying that

the assessment of a person aspiring to be a Music Teacher

can only be on a composite assessment of his ability of

which the performance test is an important part, because it

is a test of his skill or proficiency in Music as specifically

indicated under Clause (iii) of paragraph-10 of the

additional affidavit referred to hereinbefore. Therefore,

while evaluating candidates for Music Teacher due leverage

ought to be provided for the performance test as otherwise,

the very purpose of selection would be frustrated. If more

importance is given to CBT, it may not bring out the best

talent since weightage of as much as 50% has been given

to performance in CBT, which in turn has been restricted

to Part-II and III only. Of course this is for preparing the

final merit list. However, by restricting the performance in

CBT to only Part-II and III for the purpose of applying the

cut-off marks could be contrary to the very spirit of the

advertisement. To elucidate, a candidate securing high

marks in Part-II and III of the CBT but faring poorly in the

performance test may still be selected while a person

securing less marks in the current affairs and content test,

but securing high marks in the performance test may not.

The authorities therefore, should have kept the above in

mind while fixing the cut-off marks, particularly in case of

candidates for Music Teachers. The fact that the above

procedure was actually adopted in the previous

recruitment process only goes to fortify the above reasoning

and at the same time belies understanding as to why the

same was not adopted for the recruitment process in

question.

16. Such being the finding, the question that naturally

arises is, whether the entire process of selection needs to

be declared invalid and/or quashed inasmuch as the same

procedure was followed also in respect of 30 candidates

who were called to the performance test and interview and

selections have been made long since. Obviously, the

persons who are finally selected and have been given

appointment cannot be faulted with for any wrong

procedure followed by the concerned authorities. Moreover,

the petitioners also do not have any claim or grievance

against them. It is also fairly admitted by learned Senior

Standing Counsel that all 115 vacancies have not been

filled up so far. Thus, there are sufficient number of

vacancies available to be filled up against which the

petitioners, if ultimately found to be selected, can be

adjusted.

17. For the foregoing reasons therefore, this Court holds

that the petitioners have made out a good case for

interference by this Court. As such, the writ petitions are

allowed and the following directions are issued:-

(i) The cut-off marks fixed by the committee be

applied taking into account the marks secured

by the petitioners in Part-I, II and III of the CBT.

(ii) If they are found to be thus eligible, they shall

be called upon to attend the performance test

and interview.

(iii) The petitioners who have already attended the

performance test and interview during pendency

of the writ petition shall be considered for

selection as indicated above.

(iv) If the petitioners or any of them are found to

have been selected considering their total marks,

they shall be considered for appointment against

the existing vacancies.