Sarita Kumari vs Haryana Staff Selection Commission

Rajiv Narain Raina, J.—The petitioner applied for the post of Pharmacist against advertisement No. 1/2010 in category No. 02 (Pharmacist). The claim of the petitioner for being called for interview for the post has been rejected by the impugned order dated 14.09.2012 (P-12) on the ground that the minimum marks required for the essential qualification of Diploma in Pharmacy for general category candidates like the petitioner, was fixed at 65% or more in terms of the advertisement. The present petition has been filed challenging the impugned order dated 14.09.2012. This order has been passed in pursuance to the directions issued by this Court in CWP No. 17883 of 2012 preferred by the petitioner. This Court by order dated 12.09.2012 directed the Haryana Staff Selection Commission to consider and decide the representation of the petitioner dated 03.07.2012.

The State Board Diploma was produced by the petitioner in support of his candidature with the application called by the State Board of Technical Education, Government of Haryana as proof of completion of prescribed two years diploma course. The petitioner completed the course in January 1994 at the Govt. Polytechnic, Mandi-Adampur. She had passed the Final State Board Examination in the First Division securing 777 marks out of 1200. The Certificate was issued on 21.04.1995 by the Directorate of Technical Education, Haryana. 777 marks out of 1200 comes to 64.75%, a little shy of 65%. The Commission by the impugned order informed that rounding off of marks is not permissible. The decision of this Court in Naresh Kumar vs. State of Haryana 2004(1) RSJ 175 was cited to reject the plea of rounding off marks as not legally permissible. Therefore, the representation was rejected and the petitioner was held to be ineligible to be called for interview. By the interim order dated 17.09.2012 the petitioner was provisionally ordered to be interviewed but her result was directed not to be declared and to be kept in sealed cover. This Court ordered that participation of the petitioner in the interview will not confer any right in favour of the petitioner for appointment to the post.

Heard the learned counsel for the parties.

Learned counsel for the petitioner submits that the petitioner secured 746 marks out of 1100 in the 1st Year of the two years diploma course which comes to 67.8% and in the 2nd Year/Final Year she secured 777 marks out of 1200 which comes to 64.75%. When the marks secured in both the years are added the total pass percentage comes to 66.2% which is more than the percentage required for eligibility for being called for interview and, therefore, the petitioner has a right to be considered for interview and consequently, a result in sealed cover may be opened to know whether the petitioner makes it on merit for appointment.

Mr. Sunil Nehra, learned Sr. DAG, Haryana on the other hand supports his submissions on the strength of the written statement filed by the Secretary, Haryana Staff Selection Commission. He submits that 65% was fixed for short-listing of candidates for interview. The Pharmacy Diploma of State Board of Technical Education is awarded on the basis of marks obtained in the 2nd Year/Final Year only. For this, reliance is placed on clarification sought by the Commission from the Board and the response thereto vide letter dated 19.07.2012 (R-1).

Learned counsel for the petitioner would make much of the letter dated 19.07.2012 (R-1) in which it is mentioned that diplomas are awarded on the basis of marks secured in the 2nd Year/Final Year only out of 1000 marks whereas the petitioner was evaluated in the Certificate dated 21.04.1995 (P-4) on a scale of 1200. If the diploma is awarded without regard to the marks obtained in the 1st Year as reflected in the order dated 19.07.2012 (R-1) and the Diploma Certificate (P-4) then one thing is certain that the marks of 1st Year are not to be taken into consideration. It matters little that the scale of the 2nd Year marks are 1000 or 1200. It may be that from 1995 a change in scheme of total scale may have been brought about from 1200 to 1000. This has not been explained by the petitioner nor the respondent though it was for the petitioner to have placed sufficient material on record explaining the position. No replication has been filed either to explain or rebut the averments in the written statement.

If the petitioner herself relied upon the Certificate (P-4) showing her to have secured 777 marks out of 1200 in January 1994 Examination, the Commission was bound to act on it. The petitioner would then fail to make the grade in terms of the short-listing method adopted by Notice dated 14.06.2012. The petitioner has not challenged the method of short-listing at 65% marks in the essential qualification. She can make no grievance of rejection of candidature.

The argument of the learned counsel for the petitioner of rounding off deserves to be rejected in view of the dicta laid down in Ashutosh Bilves vs. Annamalai University and others, LPA No. 314 of 2012 decided on 27.11.2012. The Division Bench of this Court for which I wrote the opinion, the Court held as follows:-

Before parting, we may add that grace marks and moderation cannot be lightly dealt with and bestowed, worked or added to change merit position in a world of razor sharp competition. Merit position cannot be seen as a mere personal right of a competitor, though it may be personal achievement or lack of it. This is not far to see as it has public law element in it, amidst a sea of valuable third party rights emerging, jostling and elbowing each other to secure precious public appointments and free and paid seats in educational institutions in the dreary war of attrition, each aspirant clinging to decimals and fractions. It is very serious business.

For the foregoing reasons, there is no merit in this petition and the same is dismissed.