2013 PLP 702 (SCMR)

Smt. RANJANA PRAKASH DESAI, J.

Leave granted.

2. This appeal, by special leave, is di rected against the judgment dated 28-10-2010 of the Division Bench of the Karnataka High Court. By the impugned judgment, the Division Bench declined to entertain the appeal filed by the appellant challenging the judgment of learned single Judge of the High Court permitting round ing-off of the percentage of marks obtained by respondent 1 so as to make her eligible to get admission to post-graduate course ["PG course", for convenience] in M.Sc. (Nursing).

3. On 11-3-2011 this Court issued no tice only to settle the question of law raised in the appeal because respondent 1 has completed the course. This court refused to stay the impugned order and directed that respondent 1's admission be regularized and her results be declared.

4. The question of law involved in this case is whether by applying the principle of rounding-off the eligibility criteria pre scribed for the qualifying examination for admission to the PG course in M.Sc. (Nursing) can be relaxed.

5. For deciding the question of law, it is necessary to know the facts of the case. Re spondent 1 completed Bachelor of Science degree in Nursing with 54.71% aggregate marks from N.T.R. University of Health Sciences in the year 1997. Thereafter, she registered herself as a Public Health Nurse and Midwife. She also registered herself as a nurse under the provisions of the Andhra Pradesh Nurses and Midwives (Ex tension of Amendment) Act, 1964. She was appointed as a working staff nurse at the Primary Health Centre, Nagasamudram (Andhra Pradesh) on 8-7-1999. She served for eight years and three months in the said institution. She made a represen tation to the Regional Director of Medical Health Services seeking permission to pur sue the PG course in M.Sc. (Nursing). The eligibility criteria prescribed by the Indian Nursing Council for securing admission to the said PG course was 55% aggregate marks. The petitioner, however, secured 54.71% aggregate marks. She approached the Secretary, Indian Nursing Council, the third respondent herein, requesting that a certificate of eligibility be issued to her. The third respondent communicated to her that 0.50% would normally be rounded-off to next digit. She was asked to approach the concerned authority of the institute in that regard. Accordingly, she approached the petitioner. The petitioner gave her the eli gibility certificate. She, then, approached the Principal, Navodaya College of Nurs ing, Raichur, Karnataka, the second respon dent herein. With the said certificate she obtained admission in the management quota.

6. When she was preparing to take the annual examination, she was informed by the second respondent that she was not eli gible to take examination as she has secured less than 55% in the qualifying examination. She approached the petitioner for re consideration of her case. She was in formed that on reconsideration it was found that she was not eligible to take examina tion. She, therefore, preferred writ petition in the High Court challenging the said com munication. She obtained an interim Order permitting her to take first year examina tion. She took the examination but, results were withheld. She was also permitted to take the second year examination by an interim order. Thus, she has completed the PG course by taking both the examinations. As stated by us earlier, while issuing no tice, this court directed that her results be declared and her admission be regularized.

7. By order dated 1-9-2010 learned single Judge of the High Court, by apply ing the rule of rounding-off of numbers, held that 54.71% marks obtained by re spondent 1 should be rounded-off to 55%. Thus, respondent 1 became eligible by vir tue of the High Court's order. Learned single Judge set aside the endorsement is sued by the petitioner stating that respon dent 1 was not eligible for admission to the PG course in M.Sc. (Nursing). The said order was carried in appeal to the Division Bench of the Karnataka High Court by the appellant. The Division Bench of the Karnataka High Court declined to enter tain the appeal. The Division Bench ob served that it was not inclined to interfere with the discretion exercised by learned single Judge in rounding-off of 54.71% to 55%. In the circumstances, the Division Bench held that respondent 1 did possess required qualification to get admission to PG course.

8. In Orissa Public Service Commission and another v. Rupashree Chowdhary and another (2011) 8 SCC 108 : (AIR 2011 SC 3276: 2011 AIR SCW 4588) this Court in somewhat similar fact situation considered whether the eligibility criteria could be re laxed by the method of rounding-off. The Orissa Public Service Commission pub lished an advertisement inviting applica tions from suitable candidates for the Orissa Judicial Service Examination, 2009 for di rect recruitment to fill-up 77 posts of Civil Judges (JD). Pursuant to the advertisement, the first respondent therein applied for the said post. She took the preliminary written examination. She was successful in the said examination. She, then, took the main writ ten examination. The list of successful can didates, who were eligible for interview, was published in which the first respondent's name was not there. She re ceived the mark sheet. She realized that she had secured 337 marks out of 750 i.e. 44.93% of marks in the aggregate and more than 33% of marks in each subject. As per Rule 24 of the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 (for short "the Orissa Rules"), the candidates who have secured not less than 45% of the marks in the aggregate and not less than a minimum of 33% of marks in each paper in the written examination should be called for viva voce test. Since the first respondent therein had secured 44.93% marks in aggregate she was not called for interview/viva voce. The first respondent approached the Orissa High Court. The High Court allowed the writ petition. The appeal from the said order was carried to this court. After considering the Orissa Rules, this court held that Rule 24 thereof made it 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% marks in the aggregate in all the written papers in the main examination. This court observed that when emphasis is given in the rule it self to the minimum marks to be obtained, there can be no relaxation or rounding-off. It was observed that no power was provided in the statute/rules permitting any such rounding-off or giving grace marks. It was clarified that the Orissa 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.

9. In our opinion, the ratio of this judg ment is clearly applicable to the facts of this case. Judgment of the Full Bench of Allahabad High Court in Vani Pati Tripathi v. Director-General, Medical Education and Training and others (AIR 2003 All 164) and judgment of the Full Bench of Punjab and Haryana High Court in Kuldip Singh, Le gal Assistant, Punjab Financial Corpora tion v. The State of Punjab and others (1997) 115 PLR 1 : (1998 Lab IC 1), were cited before us because they take the same view. However, in view of the authorita tive pronouncement of this Court in Orissa Public Service Commission (supra), it is not necessary for us to discuss the said de cisions.

10. No provision of any statute or any rules framed thereunder has been shown to us, which permits rounding-off of eligi bility criteria prescribed for the qualifying examination for admission to the PG course in M.Sc. (Nursing). When eligibility crite ria is prescribed in a qualifying examina tion must be strictly adhered to. Any dilation or tampering with it will work injustice on other candidates. The Division Bench of the High Court erred in holding that learned single Judge was right in rounding-off of 54.71% to 55% so as to make respondent 1 eligible for admission to PG course. Such rounding-off is impermissible.

11. We make it clear that this order merely settles the question of law and shall not have any adverse impact, in any manner, on the service of respondent 1.

12. The appeal is disposed of in the aforesaid terms. MWA/8/SC-IND. Order accordingly.