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Judgment
B.S. Chauhan and Arun Tandon, JJ.—Petitioner is said to be a member of Other Backward Class. He made an application for being considered to the post of Lecturer in terms of Advertisement No. 38 published by the Uttar Pradesh Higher Education Services Commission.
According to the petitioner, he was successful in the written examination, but was not called for interview on the ground that he did not fulfil the minimum standard prescribed for the post in question i.e. did not secure 55 percent qualifying marks. To be precise, the controversy relates to rounding up the fraction of the marks obtained by the petitioner in respect of his Graduate examination wherein he obtained 54.7 percent. His contention is that it should be read as 55 percent which is the minimum standard prescribed for the post in question in terms of the aforesaid Advertisement.
We have heard Shri Arvind Srivastava, learned Counsel for the petitioner; Shri H.N. Singh for U.P. Higher Education Service Commission and Shri R.B. Pradhan, learned Standing Counsel.
The facts are not in dispute. The minimum marks required for being considered for the post in question is 55 percent. The petitioner has admittedly obtained less than 55 percent, i.e. 54.75 percent.
The word ''minimum'' has been defined in The New Lexicon Webster''s Dictionary Deluxe Encyclopedic Edition at page 63 and means "the least possible amount, number or degree". Thus, it is clear that 55 percent is the least possible percentage which the candidate should obtain for being considered eligible for the post n question.
In the opinion of the Court, the process of rounding up, in the facts of the case, has no application inasmuch as percentage prescribed is followed by the word ''minimum'' under the aforesaid advertisement and the Rules applicable.
The Regulations framed under the U.P. Intermediate Education Act, 1921, particularly, Regulations 2, 4 and 10 of Chapter III provide for promotion to Class III post from Class IV post contains a note that while determining 50 percent posts, the portion falling less than half, will be left out and the portion of half or above half will be considered to be one. Thus, in many cases, the Legislature itself has taken care of providing for solution to such a problem. This aspect has been considered by this Court in Kedar Nath Maurya and Ors. v. District Inspector of Schools and Ors. 1995 AWC 744.
In Prana Vir Singh (Dr.) v. Chancellor, Chandra Shekliar Azad University of Agriculture and Technology, Lucknow and Ors. (2004) 2 UPLBEC 1445 , a similar controversy was raised. This Court placing reliance upon the judgment of the Hon''ble Supreme Court in Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association and Others, held that while making such calculation of posts to be filled up by reserved category candidates, the Court has to bear in mind that it should not exceed the permissible limit fixed for reserved category.
In Chandra Kant Bhardwaj v. State of U.P. and Anr. 2005 ALT 284, this Court applied the theory of rounding up while determining the number of vacancies. However, this was a matter determining the number of vacancies. Same formula may be applicable while determining the number of required votes for sending the notice for holding the no confidence motion or for removal of an elected office bearer under various statutes.
Counsel for the petitioner has made reference to the judgments of the Hon''ble Supreme Court in the cases of State of U.P. and Anr. v. Pawan Kumar Tiwari and Ors. (2005) 2 SCC 10 ; Bhudev Sharma Vs. District Judge, Bulandshahr and Another, and State of Punjab v. Asha Mehta, (1997) 11 SCC 410 and has contended that if the fraction is 5 or above it has to be rounded up so as to read as 1. On the same analogy, the petitioner contends that the marks obtained by the petitioner should be rounded up and should be read as 55 percent.
So far as the judgments in the State of U.P. and Anr. v. Pawan Kumar Tiwari and Ors. (supra) and Bhudev Sharma v. District Judge, Bulandshahr and Anr. (supra) are concerned, they are clearly distinguishable from the facts of the present case inasmuch as in the aforesaid cases, the issue for consideration was regarding the percentage of reservation provided for a particular category. The percentage so provided was not qualified or to be governed by the word minimum. The principle of rounding up is based on logic and common sense: if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. More so, while making such a calculation, the Court must keep in mind that the number of reserved vacancies do not exceed the permissible limit i.e. 50 percent.
In Pawan Kumar Tiwari (supra), the Hon''ble Apex Court refused to round up 1.86 to 2 for Scheduled Tribes observing that no candidate belonging to Scheduled Tribe had challenged the determination, therefore, it is evident from the aforesaid judgment that the law laid down therein is not of universal application.
So far as the judgment in the case of State of Punjab and Anr. v. Asha Mehta (supra) is concerned, the judgment specifically records that it had been a procedure of the Public Service Commission in all other cases, therefore, the Hon''ble Supreme Court refused to entertain the appeal without recording anything further merely being its order on the principle that practice adopted for a long period should not be disturbed. Such a judgment cannot be relied upon by the petitioner except in support of the contention which has been canvassed before us.
The case in hand is squarely covered by the Division Bench judgment of this Court in Vani Pati Tripathi Vs. Director General, Medical Education and Training and Others, wherein this Court considered large number of its earlier judgments making calculations to find out the exact number of members required for removal of an elected office bearer of the local bodies, particularly, Wahid Ullah Khan Vs. District Magistrate, Nainital and others, and Rajan Seth v. State of U.P. and Ors. (1992) 1 UPLBEC 636 and came to the conclusion that where inter-se merit of the candidates is to be examined, the rounding up theory is not applicable. In the said case, the candidate seeking admission in the MBBS course could not secure the exact qualifying marks i.e. at least 50 percent and her contention that marks secured by her to the extent of 49.67 percent be rounded up and be read as 50 percent was rejected.
It is admitted by Shri Arvind Srivastava, learned Counsel for the petitioner that against the said judgment and order in Vani Rati Tripathi (supra), the Hon''ble Supreme Court has rejected the Special Leave Petition.
In view of the above, we do not see any cogent reason to take a view contrary to the view taken by the Division Bench of this Court earlier in the case of Vani Pati Tripathi (supra).
In a competition like this, there may be large number of candidates/applicants who might have secured marks equal to the petitioner or between 54.75 and 54.99 percent. No factual foundation has been laid down to the effect that in case his marks are rounded up to 55 percent, no person either of general category or to which the petitioner belongs would stand superseded.
In such a fact situation, it would be greatest injustice to those who had secured better marks than petitioner, but could not secure 55 percent, the plea of the petitioner is liable to be rejected on this ground also. The validity of the advertisement has been challenged on various grounds inter-alia that in the subsequent advertisement, cut off marks have been reduced from 55 percent to 50 percent. A notification which earlier cannot be challenged on a ground that a different criteria had been adopted by the competent authority at a subsequent stage. More so, the process of selection starts from the issuance of the advertisement and is to be complied with in conformity with the terms and conditions incorporated therein. If for certain reasons, the cut off marks have been reduced in subsequent advertisement, petitioner cannot take benefit thereof.
In view of the aforesaid, writ petition lacks merit and is accordingly dismissed.