REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   6201  OF 2011 [Arising out of SLP(C) No. 6751 of 2010]

Orissa Public Service Commission & Anr.            ....Appellant(s)

VERSUS

Rupashree Chowdhary & Anr.                          ....Respondent(s)

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. The present appeal  is  filed against  the judgment and order dated  

08.12.2009 passed by the Orissa High Court at Cuttack whereby the  

High Court allowed the appeal filed by the Respondent No. 1 herein  

and  ordered  for  rounding  off  of  the  aggregate  marks  of  the  

Page 1 of 9

respondent from 44.93% to 45% along with two other candidates but  

not parties before the Court and held her eligible to appear in the  

interview as per Rule 24 of the Orissa Superior Judicial Service and  

Orissa Judicial Service Rules, 2007 [for short “the Rules”].

3. The facts leading to the filing of the present case are that the Orissa  

Public  Service  Commission  [in  short  "the  OPSC"]  published  an  

advertisement inviting applications from suitable candidates for the  

Orissa Judicial Service Examination, 2009 for direct recruitment to  

fill  up  77  posts  of  Civil  Judges  (J.D),  pursuant  to  which,  the  

respondent  No.  1  applied  for  the  said  post.  She  appeared  in  the  

Preliminary  Written  Examination  held  on  15.05.2009.  Being  

successful in the Preliminary Written Examination, she appeared in  

the Main Written Examination which was held from 15-18.07.2009.  

The list of successful candidates, who were eligible for interview, was  

published on 25.8.2009 in which respondent's name was not there.  

Immediately  after  publication  of  the  result  of  the  Main  Written  

Examination,  the  respondent  applied  for  her  marks  in  the  Main  

Written  Examination  and  the  mark  sheet  of  the  respondent  was  

issued to her on her request on 27.10.2009, which she received on  

03.11.2009.

4. After receiving the same, she came to know that she had secured 337  

out of 750, i.e., 44.93% of marks in aggregate & more than 33% of  

marks on each subject. As per Rule 24 of the Rules the candidates  

who have secured not less than 45% of the marks in aggregate & not  

less than minimum of 33% of marks in each paper in the written  

examination should be called for viva-voce test. Since the respondent  

secured  44.93%  marks  in  aggregate  she  was  not  called  for  

interview/viva-voce.  Aggrieved  thereby  she  approached  the  High  

Court of Orissa by filing a Writ Petition W.P. (C) No. 16782 of 2009  

with a prayer that she should have been called for the interview as  

the fraction of marks, i.e., 44.93%, secured by her should have been  

rounded off to 45% & in that way she would have fulfilled the criteria  

as per the Rules. The High Court vide its order dated 08.12.2009  

allowed the writ petition filed by the respondent herein against which  

this appeal has been filed, upon which, we heard the learned counsel  

appearing for the parties.

5. Learned counsel appearing on behalf of the appellant submitted that  

as per Rule 24 of the Rules a candidate who has secured not less  

than 45% of marks in aggregate could only be called for the interview  

and since the respondent secured only 337 out of 750 marks [i.e.,  

Page 3 of 9

44.93%] in the Main Written Examination she was not called for the  

interview. Counsel submitted that the High Court erred in permitting  

the  rounding  off  of  the  marks  of  the  respondent  as  there  is  no  

provision  of  rounding  off  or  relaxation  of  marks  under  the  Rules  

which permit the Commission to give such a kind of grace to the  

respondent.  He  further  submitted  that  High  Court  also  erred  in  

permitting 2 more candidates to sit in the interview by rounding off  

their  marks  to  45%  even  when  they  were  not  party  to  the  Writ  

Petition before it.

6. Learned  counsel  appearing  on  behalf  of  the  respondent  however  

refuted  the  contentions  made  by  the  counsel  appearing  for  the  

appellant and submitted that the High Court rightly and correctly  

permitted the respondent to be called for the interview by rounding  

off the marks obtained by her to 45%. He further submitted that the  

High Court rightly held that in the absence of any Rule dealing with  

the fraction of ½ marks or even less secured by the candidates, while  

determining the percentage of marks the same could be rounded off  

to the next whole number.

7. Learned counsel appearing for the respondents during the course of  

his arguments relied upon the decisions of this Court in  State of

Orissa and Another v.  Damodar Nayak reported in (1997) 4 SCC  

560,  State  of  U.P.  and  Another v.  Pawan  Kumar  Tiwari  and  

Others reported in (2005) 2 SCC 10,  Union of India v.  S. Vinodh  

Kumar reported  in  (2007)  8  SCC  100  and  Bhudev  Sharma v.  

District Judge, Bulandshahr and Another reported in (2008) 1 SCC  

233.  On scrutiny, we find that the findings recorded in the above  

referred cases are not applicable  to the facts of  the present case.  

Facts and findings recorded by this Court in the above referred cases  

are  distinguishable  to  facts  of  the  case  in  hand.  Almost  all  the  

aforesaid cases dealt with post or vacancies where it was allowed to  

be rounded off to make one whole post. Understandably there cannot  

be a fraction of a post.

8. In  the  light  of  the  detailed  records  placed  before  us  we  have  

considered the aforesaid submissions of the counsel  appearing for  

the parties. The appointment to the post of Civil Judge (J.D.) under  

the Orissa Judicial  Services is  guided by Orissa Superior  Judicial  

Service and Orissa Judicial Service Rules, 2007 and Rule 24 thereof  

specifically  deal  with the criteria for determining of candidates for  

interview. Rule 24 reads thus: -

“24. Determination of number of candidates for interview –   

Page 5 of 9

The  Commission  shall  call  the  candidates  for  interview  who have secured not less than  forty-five per centum of   marks  in  aggregate  and  a  minimum  of  thirty  three  per  centum  of  marks  in  each  paper  in  the  Main  written   examination.”

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  

Page 7 of 9

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.

14.The High Court, in our considered opinion, has also committed an  

error  apparent  on  the  face  of  the  records  by  allowing  two  more  

persons, who secured marks between 44.5% and 45%, to be called  

for interview who were not even parties before it and who had not  

even shown interest subsequently to be appointed subsequent to the  

declaration of the results of the examination but despite the said fact  

the High Court directed them also to be called for the interview only  

on the ground that they have secured more than 44.5% of marks but  

less than 45% marks in the main written examination in aggregate.

15.In that view of the matter, the appeal is allowed and the judgment  

and order of the High Court is set aside leaving the parties to bear  

their own costs.

.................................................J           (Dr. MUKUNDAKAM SHARMA)

..................................................J           (ANIL R. DAVE)

NEW DELHI, AUGUST 2, 2011.

Page 9 of 9