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Manoj Kumar Gupta Vs. Human Resources Department - Court Judgment

LegalCrystal Citation
CourtJharkhand High Court
Decided On
AppellantManoj Kumar Gupta
RespondentHuman Resources Department
Excerpt:
.....by the respondent, j.p.s.c. vide letter dated 25.6.2007, as contained in annexure-2 to the writ application, that the petitioner had got 52% of the average marks in three papers and according to the u.g.c. guidelines, the cut off marks was fixed as 60% for general & obc candidates. the petitioner being the obc candidate, was not declared successful, due to the fact that he had not obtained the minimum cut off marks, fixed by the u.g.c.3. it may be stated that in the meantime, similarly situated another candidate had filed w.p(c) no. 5095 of 2007 (amardeep vs. the state of jharkhand & ors.) in this court, whose candidature was also rejected due to the fact that he had bagged less than 60% of the cut off marks in the three papers in 2 jet examination. the hon'ble single judge, by.....
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P (C) No. 3705 of 2015 Manoj Kumar Gupta ...… Petitioner Versus 1. The State of Jharkhand through the Principal Secretary, Dept. of Human Resources Development, Government of Jharkhand, Ranchi.

2. Jharkhand Public Service Commission, through its Secretary, Ranchi. ...… Respondents -------- CORAM : THE HON’BLE MR. JUSTICE H. C. MISHRA THE HON’BLE MR. JUSTICE DR. S.N.PATHAK ------ For the Petitioner : Mr. Sumeet Gadodia,Advocate. For the State : Mr. Baleshwar Yadav, J.C to S.C-I. For the J.P.S.C : Mr. Anil Kumar Sinha, Sr. Advocate. M/s. Sanjay Piperwall,Devgam, Advocates. ------ 15/09.11.2016 Heard the learned counsel for the petitioner and the learned counsel for the State, as also learned senior counsel for the respondent, Jharkhand Public Service Commission (herein after referred to as "J.P.S.C.").

2. An advertisement was issued, being Advertisement No.01-JET dated 19.7.2006, inviting the applications for appearing in the Eligibility Test for the post of Lecturer in different universities in the State of Jharkhand. The petitioner appeared in the said Eligibility Test, but he was not declared successful in the test and when the petitioner sought information under the Right to Information Act, he was informed by the respondent, J.P.S.C. vide letter dated 25.6.2007, as contained in Annexure-2 to the writ application, that the petitioner had got 52% of the average marks in three papers and according to the U.G.C. guidelines, the cut off marks was fixed as 60% for General & OBC candidates. The petitioner being the OBC candidate, was not declared successful, due to the fact that he had not obtained the minimum cut off marks, fixed by the U.G.C.

3. It may be stated that in the meantime, similarly situated another candidate had filed W.P(C) No. 5095 of 2007 (Amardeep Vs. The State of Jharkhand & Ors.) in this Court, whose candidature was also rejected due to the fact that he had bagged less than 60% of the cut off marks in the three papers in 2 JET Examination. The Hon'ble Single Judge, by order dated 05.03.2009, allowed the writ application in the following terms :-

"0. In the instant case minimum marks which a candidate was required to obtain in the written papers in the aggregate was 50% in order to qualify and become eligibile and to be included in the panel. The subsequent prescription of 60% in the aggregate, after the entire process is completed, will certainly amount to amendment of the terms and conditions of the eligibility criteria as advertised. Neither any reason has been assigned nor any averment has been made in the counter affidavit as to under what circumstances the change in the criteria was introduced.

11. It has time and again been held that the criteria as advertised for eligibility cannot be changed after selection process is over and the same is on the face of it illegal, arbitrary and in violation of Article 14 of the Constitution of India. There is no dispute that the petitioner appeared for the aforesaid test and obtained / secured marks much more than the minimum qualifying marks as advertised but still was declared unsuccessful in view of the enhancement and change in the terms and conditions as per advertisement.

12. Considering the aforesaid facts and circumstances of the case, this writ petition is allowed and the respondents are directed to consider the case of the petitioner and declare him as successful candidate for the test conducted by the JPSC and JET for Lectureship 2006 in accordance with the prescribed minimum qualification marks as advertised on 19.7.2006." 4. Against the said order, the J.P.S.C. filed L.P.A No.212 of 2009, which was again dismissed by order dated 08.03.2010, by a Division Bench of this Court, as contained in Annexure-4 to the writ application. The J.P.S.C., thereafter, preferred the Civil Appeal No.10079 of 2011 in the Hon'ble Supreme Court of India against the Judgment in L.P.A. In the said Civil Appeal No. 10079 of 2011 before the Supreme Court of India, the petitioner had also intervened. However, the respondent, Amardeep, who was the petitioner in W.P(C) No. 5095 of 2007 died in the meantime, and accordingly, it was mentioned by the appellant, J.P.S.C. that since the said respondent had died who had preferred the writ petition before the High Court, the Civil Appeal had become infructuous. The said contention of the J.P.S.C. was accepted by the Hon'ble Supreme Court of India and the Civil Appeal No.10079 of 2011 was dismissed by order dated 12th March 2015, passed by the Supreme Court of 3 India, as having become infructuous. However, the liberty was given to this petitioner to initiate appropriate legal remedies, if so advised. The order dated 12th March 2015 passed by the Supreme Court of India in Civil Appeal No.10079 of 2011 has been brought on record as Annexure-7 to the writ application.

5. Though the contention of the learned counsel for the petitioner is that the case of the petitioner is fully covered by the Judgment of the Division Bench of this Court in L.P.A. No.212 of 2009, but considering the rival contentions of both sides in the present case, we are adjudicating this matter even independently to the earlier decisions of this Court passed in W.P.(C) No. 5095 of 2007 and L.P.A No.212 of 2009.

6. The issue involved in this writ application is based on the scheme of the JET Examination as mentioned in the advertisement, published by the J.P.S.C. as contained in Annexure -1 to the writ application, wherein, it was stated that the test was to consist of three papers and all the three papers were to be held on the same day in two separate sessions as mentioned in the advertisement. It was further stated that the candidate who did not appear in Paper-1 was not to be permitted to appear in Paper -II & Paper-III. Paper-III was to be evaluated only for those candidates who were able to secure the minimum qualifying marks in Paper-I and Paper-II as per the table given in the advertisement, in which, for General / OBC candidates, it was prescribed that they must secure at least 50% marks in Paper-I and Paper-II for evaluation of their Paper-III.

7. It is an admitted position in the information supplied to the petitioner under the Right to Information Act, as contained in Annexure-2 to the writ application, that in Paper-I and Paper-II, the petitioner had bagged 60 & 72 marks respectively, out of 100 marks in each paper, and accordingly, he was eligible for examination of his Paper-III also, in which, he had bagged 77, out of 200 marks. The petitioner, in all, had bagged 52% as average marks in all the three papers combined and accordingly, his candidature had been rejected as he 4 had failed to secure 60% marks in all the three papers, as per the guidelines of the U.G.C.

8. Learned counsel for the petitioner has submitted that this guideline of the U.G.C. fixing 60% as cut off marks in all the three papers, had not been mentioned in the advertisement at all, nor it was made public to the candidates through any notice or communiqué published prior to holding the examination. It is submitted that only after holding the examination, this guideline had been fixed behind the back of the candidates and the same is absolutely illegal and arbitrary, and could not be taken into consideration. Learned counsel accordingly, submitted that this fact was considered by the learned Single Judge in W.P.(C) No.5095 of 2007 and the learned Single Judge came to the conclusion that the criteria with regard to minimum qualification had been unilaterally changed after completion of the selection process, of which the candidates had no knowledge, nor it was communicated. No reason had been assigned nor any averment had been made in the counter affidavit as to under what circumstances the change in the criteria was introduced and accordingly, the writ application was allowed and the J.P.S.C. was directed to consider the case of the petitioner in that writ application and declare him as successful candidate for the test conducted by the J.P.S.C. The said decision was also upheld by the Division Bench of this Court in L.P.A No.212 of 2009.

9. In this background it is submitted by the learned counsel for the petitioner that this writ application may be disposed of, in terms of orders passed in W.P.(C) No.5095 of 2007 and L.P.A No.212 of 2009, decided by this Court earlier.

10. Per Contra, learned senior counsel for the J.P.S.C. has submitted that in the aforesaid writ application, this Court failed to take into consideration the statutory requirement that the JET Examination had to be conducted by the J.P.S.C., strictly as per the guidelines of the U.G.C. In this connection, learned counsel has drawn our attention towards Section 57 of the Jharkhand State Universities Act, 2000, which reads as follows :- 5

"7. Appointment of teachers and officers- (1) Subject to the provisions of this Act and the Statutes, the appointment and promotion of teachers and officers (other than Vice-Chancellor, Pro-Vice-Chancellor, Proctor, Dean-Students Welfare, Co-Ordinator, College Development Council and Deans of faculty) of the university & colleges (both constituent and affiliated) shall be made on the recommendation of the Jharkhand Public Service Commission. (2) (a) The Jharkhand Public Service Commission shall hold every year a qualifying test for appointment of Lecturers in the University / Constituent Colleges / Affiliated Colleges which shall be known as the Bihar Eligibility Test. For this purpose it shall invite subjectwise application from only such candidates who fulfill the prescribed qualifications as laid down in the Statute framed in this regard. However, such test shall be conducted having regard to any regulation framed or direction issued by the University Grants Commission in this regard. **** **** **** " (Emphasis supplied.) 11. Impressing upon the provision that such test had to be conducted having regard to any regulation framed or direction issued by the University Grants Commission, learned senior counsel has drawn our attention again towards Annexure-2 to the writ application, which is the information supplied to the petitioner under the Right to Information Act. It is pointed out from the said annexure that the JET Examination was held under the guidelines of U.G.C. and in the Moderation and Steering Committee, two members of the U.G.C. were also present and in their presence, the minimum cut off marks was decided for the subject of Botany and Zoology, and in the subject of Zoology, 60% of cut off marks was prescribed for the candidates belonging to General / OBC categories, 50% cut off marks was prescribed for the candidates belonging to SC and ST categories and 45% cut off marks was prescribed for the Physically and Visually Handicapped candidates.

12. Learned counsel accordingly, submitted that these cut off marks were prescribed on the basis of the guidelines of the U.G.C., and since the petitioner did not secure the minimum qualifying marks of 60%, he was not declared successful. 6 13. It may be pointed out at this place that this plea was also taken by the J.P.S.C. in L.P.A No.212 of 2009, and in the course of arguments, it was submitted that two ex-officio members of the U.G.C had attended the meeting, in which, the cut off marks was decided. The Division Bench of this Court took the view that having the ex-officio members of the U.G.C does not make a decision of the Moderation Committee, a decision of the U.G.C., and accordingly, dismissed the Letters Patent Appeal.

14. Learned senior counsel for the J.P.S.C. vehemently argued that the learned Single Judge had wrongly taken 50% marks, which was required to be obtained in Paper-I and Paper-II, entitling a candidate for evaluation of his paper-III, to be the cut off marks and has wrongly held that the same was subsequently unilaterally changed to 60%. It is submitted that 50% marks was prescribed only as the qualifying marks in Paper-I and Paper-II, so as to make the candidate eligible for evaluation of his Paper-III and it was never prescribed as the cut off marks in the JET Examination. It is also submitted by the learned Senior Counsel for the J.P.S.C., that during the meeting of the Moderation and Steering Committee, in which, two ex-officio members of the U.G.C. were also present, it was decided in view of the vacancy position that the cut off marks shall be 60% for the candidates, belonging to General and OBC categories, 50% for the candidates belonging to SC and ST categories and 45% for the Physically and Visually Handicapped candidates. Learned Senior counsel submitted that these cut off marks were not required to be specified in the advertisement, rather they were to be fixed on the basis of the vacancy position. Learned senior counsel for the J.P.S.C. accordingly, submitted that this Court while deciding W.P(C) No. 5095 of 2007 and L.P.A No.212 of 2009 misdirected itself in taking 50% marks, which was required to be obtained in Paper-I and Paper-II, entitling a candidate for evaluation of his paper-III, to be the cut off marks, and came to a wrong conclusion. JPSC moved to the Supreme Court against the order passed in LPA, which was also stayed by the Supreme Court by order dated 18.11.2011 passed in SLA(Civil) No.22293 of 7 2010, as contained in Annexure-6 to the writ application, but the Civil Appeal became infructuous due to the sad demise of the petitioner in the said writ application. Learned senior counsel accordingly, submitted that there is no merit in this writ application.

15. Having heard learned counsels for both the sides and upon going through the record, we find that the submission of the learned Senior counsel for the JPSC does not find support either from Annexure-2 which was the information given to the petitioner under the Right to Information Act, or from the counter affidavit filed on behalf of the J.P.S.C., in the present writ application. It is nowhere stated in Annexure-2 that the cut off marks was decided on the basis of the vacancy position, nor the same has been stated in the counter affidavit filed on behalf of the J.P.S.C. Rather, Annexure-2 clearly shows that the meeting of the Moderation and Steering Committee of the J.P.S.C. was held in view of the guidelines of the U.G.C., in which, two members of the U.G.C. were also present and the cut off marks was decided in the said meeting.

16. Even in the counter affidavit filed on behalf of the J.P.S.C., it is stated as follows :-

"6. That, it is stated that after conducting the examination and after evaluation of papers, the meeting of moderation committee was held on 12.1.2007, in which, two (2) representatives of University Grant Commission (U.G.C in short), i.e. Joint Secretary Dr. N.B. Krishnaswami and Dr. (Smt.) V. Maniamma, Ex-Vice Chancellor, Gulbarga University were present and in the said meeting minimum qualifying marks and mode of publication of result of JET examination was decided." 17. Thus, in absence of the statement either in the information made available to the petitioner as contained in Annexure-2 by the J.P.S.C., or in the counter affidavit filed by the J.P.S.C, the submission of the learned Senior counsel for the J.P.S.C. that the cut off marks were decided on the basis of the vacancy position, cannot be accepted. Even otherwise, the bare looking of the fixation of percentage of cut off marks does not support the contention of the 8 learned Senior counsel for the J.P.S.C., as the cut off marks have been fixed in the whole numbers only, such as, 60% for the General and OBC candidates, 50% for the SC and ST candidates and 45% of the Physically and Visually Handicapped candidates. Had these cut off marks been fixed on the basis of the vacancy position and the overall performance of the candidates in the JET Examination, there was all likelihood that these figures would not have been in whole numbers of 60%, 50% and 45%, rather the cut off marks would have arrived with some decimal figures also.

18. Having come to the conclusion that the cut off marks were fixed by the J.P.S.C., in its meeting of Moderation and Steering Committee, after the holding of the examination and evaluation of the papers, as stated in the counter affidavit also as quoted above, which was not on the basis of the vacancy position and the overall performance of the candidates in the JET Examination, we are of the considered view that the unilateral fixation of these cut off marks is absolutely illegal, arbitrary and violative of Article 14 of the Constitution Of India, and cannot be sustained in the eyes of law.

19. Though we find force in the submission of the learned Senior counsel for the J.P.S.C., that the qualifying marks of 50% in Paper-I and Paper-II were prescribed only for evaluation of Paper-III, and not as the cut off marks required to be secured by a candidate to be successful in the JET Examination, yet we are in complete agreement with the view taken by the Hon'ble Single Judge in W.P.(C) No.5095 of 2007 that the unilateral prescription of cut off marks, after the entire process is completed, will certainly amount to amendment of the terms and conditions of the eligibility criteria as advertised. We are also in complete agreement with the observation of the Division Bench of this Court in L.P.A No.212 of 2009 that having ex-officio members of the U.G.C. in the meeting of the Moderation and Steering Committee does not make a decision of the Moderation Committee, a decision of the U.G.C. We find that nothing has been brought on record to show that the cut off marks as 60% for General and OBC candidates, 50% for SC and ST9Candidates and 45% for Physically and Visually Handicapped candidates, had been prescribed by the U.G.C. Had it been so prescribed by the U.G.C., the same was required to be mentioned in the advertisement itself.

20. In view of the aforementioned discussions, we are of the considered view that the petitioner or any candidate could not have been disqualified by the J.P.S.C., in the JET Examination only on the basis that the said candidate had not bagged the cut off marks as indicated above and shown in Annexure-2.

21. Accordingly, we find that since no cut off marks had been prescribed in the advertisement, the cut off marks for qualifying the candidates in JET Examination, 2006, had to be fixed taking into consideration the vacancy position and the overall performance of the candidates in the JET Examination. If the petitioner or any other candidate, on the basis of their performance and the vacancy position come within the consideration zone, we direct the J.P.S.C to consider their case for eligibility to the post of lecturer.

22. We find from the record that the petitioner is litigating for his right since the year 2009 itself. In case the petitioner, on the basis of his performance and the vacancy position, comes within the consideration zone and is finally selected for appointment to the post of Lecturer, and in case there is any age bar for such appointment, the petitioner shall be given the benefit of relaxation of age for the period, which he has spent in the Supreme Court and the High Court.

23. This writ application accordingly, stands allowed, with the directions as above. ( H.C. Mishra, J.) (Dr. S.N. Pathak, J.) BS/


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