UPTET/ Allahabad Highcourt : Petitioner Candidate Obtains 82 Marks

UPTET/ Allahabad Highcourt : Petitioner Candidate Obtains 82 Marks and wants Qualify TET on Such Marks. Petition Dismissed and No Relief to Candidate

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. - 30

Case :- WRIT - A No. - 383 of 2013

Petitioner :- Kamta Prasad
Respondent :- State Of U.P.Thru Special Secretary & Ors.
Petitioner Counsel :- Manoj Kumar Yadav
Respondent Counsel :- C.S.C.,Archana Tyagi

Hon'ble V.K. Shukla,J.
Heard learned counsel for the petitioner and Shri Pankaj Tyagi, Advocate for respondents.
Applications have been invited by means of advertisement dated 5th December, 2012 and the said advertisement in question proceeds to mention that only those candidates are eligible to apply, who have successfully passed the U.P. Teacher Eligibility Test. The said advertisement in question proceeds to mention that those candidates would be treated as eligible who in U.P. Teacher Eligibility Test have secured 60% marks and in reference to Scheduled Caste, Scheduled Tribe and OBC category, who have received 55% marks.
Accepted position is that petitioner has secured 54.67% marks as he has secured 82 marks in U.P. Teacher Eligibility Test out of 150 marks and petitioner's submission is that from the total number of 150 questions, it is an impossibility for a candidate to secure 55% marks as no candidate can achieve 82.5 marks in the said examination. Petitioner has further proceeded to mention that either a candidate will secure 82 marks which would mean 54.67% marks or 83 marks which would mean 55.33% marks and in view of this securing 55% marks by a candidate i.e. 82.5 is an impossibility. Petitioner in this background has contended that 54.67% marks should be rounded up and treated as 55% marks.
Shri Manoj Kumar Yadav, learned counsel for the petitioner, contended that a practically impossible situation has been created as awarding of 82.5 marks which is equal to 55% marks is an impossibility and in view of this writ petition deserves to be allowed by considering 54.67 marks as 55%.
Countering the said submission Shri Pankaj Tyagi, Advocate on the other hand contended that a candidate who has to be accepted as successful has to secure on the minimum side 55% marks and in view of this only those candidates who have secured 83 marks in U.P. Teacher Eligibility Test are being treated as eligible and 54.67% cannot be treated to be equivalent to 55%, as such present writ petition is liable to be dismissed.
Question is can 54.67% marks in aggregate be treated minimum 55% in aggregate? Admittedly 54.67% marks in aggregate are less than 55% marks in aggregate. In view of this by no stretch of imagination it can be accepted that petitioner has to his credit the eligibility criteria so prescribed. Said issue in the past has already been negated by this Court, as per the judgement in the case of Ranjana Kushwaha Vs. state of U.P. 2009 (2) E&MC 94, wherein also requirement was 45% and candidate had received 44.8%, therein candidate have been held to be ineligible, and in the said judgement, have been the two earlier judgements have been referred to wherein 49.67% and 49.66% have not been accepted as equivalent to 50%, namely the case of Vani Pali Tripathi Vs. Director, 2003(1) UPLBEC 427; Pranjal Bishnoi Vs. U.P. Technical University 2003 (3) ESC 1470. In such a situation 54.67% marks cannot be treated as equivalent to 55% when emphasis is given in the eligibility criteria, to the minimum mark to be there, then said minimum makes has to be obtained by concerned candidate and there can not be any scope of compromise with the same by invoking principal of rounding up.

Apex Court in the case of Orissa Public Service Commissioner. vs Rupashree Chowdhary & Anr (CIVIL APPEAL NO. 6201 OF 2011) decided on 02.08.2011 reported in 2011 (8) SCC 108 has taken view that in order to qualify in the written examination a candidate has to obtain a minimum of 33% marks in each of the papers and not less than 45% of marks in the aggregate in all the written papers in the Main examination. When emphasis is given in the Rules itself to the minimum marks to be obtained making it clear that at least the said minimum marks have to be obtained by the concerned candidate there cannot be a question of relaxation or rounding off. Relevant extract of the aforesaid judgement is being extracted below:

"9. A bare reading of the aforesaid rules would make it crystal clear that in order to qualify in the written examination a candidate has to obtain a minimum of 33% marks in each of the papers and not less than 45% of marks in the aggregate in all the written papers in the Main examination. When emphasis is given in the Rules itself to the minimum marks to be obtained making it clear that at least the said minimum marks have to be obtained by the concerned candidate there cannot be a question of relaxation or rounding off.
10. There is no power provided in the statute/Rules permitting any such rounding off or giving grace marks so as to bring up a candidate to the minimum requirement. In our considered opinion, no such rounding off or relaxation was permissible. The Rules are statutory in nature and no dilution or amendment to such Rules is permissible or possible by adding some words to the said statutory rules for giving the benefit of rounding off or relaxation.
11. We may also draw support in this connection from a decision of this Court in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another. v. M. Tripura Sundari Devi reported in (1990) 3 SCC 655. In the said judgment this Court has laid down that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same then it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement.
12. The entire record of the main written examination was also produced before us which indicates that there are also candidates who have got more than the respondent in the aggregate but has not been able to get 33% marks in each paper and have missed it only by a whisker. In case, the contention of the counsel appearing for the respondent is accepted then those candidates who could not get 33% marks in each paper in the Main written examination could and should have also been called for viva-voce examination, which would amount to a very strange and complicated situation and also would lead to the violation of the sanctity of statutory provision.
13. When the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences, for the Act speaks for itself. There is no ambiguity in the language of Rule 24 leading to two conclusions and allowing an interpretation in favour of the respondent which would be different to what was intended by the Statute. Therefore, no rounding off of the aggregate marks is permitted in view of the clear and unambiguous language of Rule 24 of the Rules under consideration."

The requirement under law is of having 55% marks by a candidate and in view of this a candidate who has secured less than 55% marks i.e. less than 82.5 marks in U.P. Teacher Eligibility Test, cannot be treated as eligible by any means and those candidates who have got less than 55% on plain mathematical calculation have been treated to be ineligible, accordingly, theory as has been suggested by petitioner that as it would be an act of impossibility cannot be accepted. 
Consequently no relief or reprieve can be accorded to the petitioner, and writ petition is accordingly, dismissed. 
Order Date :- 7.1.2013
Shekhar

Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2293532