Orissa High Court

State Of Odisha And Another vs Dhrutimaya Behera And on 30 January, 2025

Author: Arindam Sinha

Bench: Arindam Sinha, M.S. Sahoo

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                            WA No. 802 of 2023

     State of Odisha and another ....                           Appellants
                                  -Versus-

     Dhrutimaya Behera and              ....                  Respondents
     others

     Advocates appeared in this case :

     For Appellants       : Mr. Bimbisar Dash, AGA

     For Respondents : Mr. S.P. Misra, Senior Advocate
                     : Mr. Ramdas Achary, Advocate
                     : Mr. B.K. Sharma, Senior Advocate



  CORAM:

       THE HON'BLE MR. JUSTICE ARINDAM SINHA,
                 THE ACTING CHIEF JUSTICE
                                     AND
         THE HON'BLE MR. JUSTICE M.S. SAHOO

                                  JUDGMENT

-------------------------------------------------------------------------------------

Date of hearing and judgment: 30th January, 2025

------------------------------------------------------------------------------------- ARINDAM SINHA, ACJ.

1. Mr. Dash, learned advocate, Additional Government

Advocate appears on behalf of appellants. It is State. The appeal has

been preferred against judgment dated 24th February, 2023 made by

the learned single Judge. Mr. Misra, learned senior advocate and Mr.

Sharma, learned senior advocate respectively appear on behalf of

respondents and proforma respondent.

2. Reproduced below is direction paragraph-17 in impugned

judgment.

"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.

(v) The whole exercise shall be completed within a period of two months from today."

It appears, controversy between the parties is regarding direction (i).

3. Mr. Dash draws attention to the modalities for selection of

music teacher given by clause-8.6 in the document being detailed

modalities on invitation for applications to several posts issued by

Odisha Adarsha Vidyalaya Sangathan (OAVS). He points out,

modality clause-8.6 is in respect of selection of music teacher. The

clause is reproduced below.

"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 choice 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%."

(emphasis supplied)

4. He points out that the modalities provide for the type of

questions and marks against parts- I, II and III. Those constitute

written test for giving answers to multiple choice questions on

different subjects. There are other parts being performance test and

interview. He demonstrates from the modalities that part-I stands

separated from parts-II and III with regard to preparation of final

merit list. In the preparation considered will be parts-II and III as

weighted evaluation scheme test at 50%, performance test at 20% and

interview 30%. He explains, part-I is for purpose of candidates

qualifying to take tests parts-II and III. The qualifying marks under

part-I is not to be taken into account for weighted evaluation scheme

test, confined to marks obtained in parts-II and III only.

5. He submits, above contention was not appreciated by the

learned single Judge. More so because said modalities clause-8.6 was

not under challenge in the writ petition. In the circumstances,

direction (i) for cut off marks fixed by the committee being applied

taking into account the marks secured by writ petitioners in parts-I, II

and III of Computer Based Test (CBT) is erroneous. He adds, the

direction though in respect of cut off marks but still is erroneous

because the cut off marks decided in exercise of discretion by OAVS

is fixed in respect of total marks obtained by a candidate. The total

marks, he reiterates, must be aggregated on marks obtained in parts-I

and II only as provided for in the weighted evaluation scheme, 50%.

He seeks interference for modification of said direction in the

judgment accordingly.

6. Mr. Misra relies on modality clause-7(a). It is reproduced

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."

(emphasis supplied)

He submits, direction clause (i) in impugned judgment is in respect of

computing cut off marks, to include marks obtained by candidates in

parts-I, II and III of CBT. He lays emphasis on relied upon clause to

submit, there is no distinction made between the parts, which

constitute CBT. As such, there is no error either in appreciating the

facts as appears in impugned judgment.

7. He submits further, it may be that part-I was put in the

selection procedure for purpose of candidates qualifying to proceed to

take parts-II and III, the performance test and interview. However,

fixing cut off marks taking only parts-II and III of CBT would be

arbitrary elimination of candidates.

8. We are clear in our minds that cut off mark was decided by

OAVS taking into account the marks obtained as provided in clause-

7(a) in relation to appointment of music teachers. The controversy

appears to be whether the cut off mark is to be taken from marks as

can be obtained by a candidate in parts-I, II and III or parts-II and III

only. A close scrutiny of clause-8.6 reveals that the online test will

comprise of parts-I, II and III. That is sufficient for us to conclude

that Computer Based Test referred to as CBT is the online test on

parts- I, II and III.

9. Cut off marks are to be fixed in the discretion of OAVS as per

modalities clause-7(a). The clause does not provide calculation of the

marks as provided in modalities clause-8.6. Clause-7(a) reserves right

to the institute to decide cut off marks in CBT and interview

separately. Contention of the candidates that in deciding cut off

marks, marks obtained in CBT are to be taken together. On query

made, we have ascertained that the cut off marks were fixed at a time

when the performance test and interview had not taken place.

Therefore, only one cut off mark exists at 35 marks in relation to

CBT. It follows, argument and contention of State that the cut off

marks must be decided taking total marks of parts-II and III only as to

be calculated under modalities clause-8.6 cannot be maintained. As a

consequence, we do not find any error in the directions made in

impugned judgment.

10. Mr. Misra hands up subsequent judgment dated 14 th

December, 2023 made by the learned single Judge on review.

Paragraph-10 from the judgment is reproduced below.

"10. For the foregoing reasons therefore, the review application is allowed only to the extent of modifying the directions in paragraph-17(i) & (ii) of the judgment dtd.24.2.2023 in the following manner;