Writ Petition No.3658 of 2013

31st January, 2014

Petitioner Counsel: Mr. S.Z. SONBHADRE
Respondent Counsel: Mrs. K.S. JOSHI, Mrs. I.L. BODADE, Mr. D.M. KALE, Mr. J.J. CHANDURKAR

JUDGMENT

B. P. DHARMADHIKARI, J. :- Looking to the nature of controversy involved in the matter, we have heard the matter by consent of Shri S.Z. Sonbhadre, learned Counsel for Petitioner, Mrs. K.S. Joshi, Asstt. Govt. Pleader for Respondent No.1, Mrs. I.L. Bodade, learned Counsel for Respondent no.2, Mr. D.M. Kale, learned Counsel for Respondent Nos. 3 and 4 and Mr. J.J. Chandurkar, learned Counsel for Respondent No.5. Rule is thus issued in the matter making the same returnable forthwith.

Liberty to correct name of respondent no.5 is granted. Necessary correction be carried out forthwith.

2. The impugned order dated 11.04.2012 is passed by respondent no.2, rejecting objection of petitioner and holding that respondent no.5, who has secured 421 marks out of 800 in B.Ed. written examination, is above petitioner, who has secured 364 marks out of 700. This order is passed because of earlier directions issued by this Court in its order dated 27.02.2012, while disposing of Writ Petition No. 234/2010.

3. Issuance of advertisement on 15.08.2009 for selecting Shikshan Sevak by respondent nos. 1 and 2 is, not in dispute. The advertisement expressly stipulates that selection shall be on the basis of marks secured in written examination at B.Ed. Respondent no.5 has been selected accordingly and he was to join employment with respondent no.3 in respondent no.4 School, however, because of the stay granted by this Court, he could not join.

4. Shri Sonbhadre, learned Counsel appearing for petitioner submits that the mark-sheet of petitioner gives him 364 marks out of 700 and these marks are only of written examination. In so far as respondent no.5 is concerned, his mark-sheet gives him total marks out of 800. He points out that the additional 100 marks are on account of two papers which consists of Annual Lesson. He states that in said Annual Lesson, respondent no.5 has been given 44 and 43 marks respectively, out of 50 and hence, his score rises to 421 out of 800. He submits that these 87 marks need to be deducted, and respondent no.5 secured only 334 marks out of 700. As petitioner has secured more marks than him, he ought to have been offered employment.

5. Our attention has also been invited to information supplied by the University of respondent no.5 to petitioner on 25.10.2011 to demonstrate that while giving marks for Annual Lesson, there is no written examination. Shri Sonbhadre, learned counsel therefore, contends that the impugned order overlooks this aspect and respondent no.5 has been selected only because he got 87% marks in Annual Lesson.

6. He has invited attention to the minutes of Selection Committee proceedings dated 21.03.2012 to show how the issue has been approached by the Members.

7. Respective Counsel appearing for respondent nos. 1 & 2 have opposed the petition. They state that the marks given to respondent no.5 cannot be segregated and Annual Lesson marks awarded to him, form an integral part of his written examination. They therefore, rely upon the percentage as worked out by the Education Officer and urge that the application of mind in the impugned order cannot be interfered with.

8. Shri Kale, learned counsel appearing for respondent nos. 3 and 4 also supports the argument of respondent nos. 1 and 2.

9. Shri Chandurkar, learned Counsel appearing for respondent no.5 submits that the procedure being followed by the District Selection Committee at various places has been adhered to, even on this occasion. Marks secured out of 800 have been twice looked into without any protest in past and accordingly same has been done even now. To substantiate his contentions, he has invited our attention to final select list prepared by the District Selection Committee, Amravati on 05.04.2011 and by respondent nos. 1 and 2 after interviews, on 21.02.2011.

10. With the assistance of respective counsel we have perused the records. Final select list prepared by the District Selection Committee at Amravati on 05.04.2011 shows that a candidate who has secured 442 marks out of 800 has been placed in the select list, while other candidate who has secured 353 marks out of 700, is placed in waiting list. This document by itself does not show that the marks obtained by the selected candidate in Annual Lesson are included in 442 marks, secured by him. The select list prepared by the respondent nos. 1 and 2 after interview on 21.02.2011, is after an advertisement dated 21.10.2010. The advertisement to be looked into by this Court is dated 15.08.2004. The select list there shows name of University also, against the name of selected candidates. In so far as B.Ed. examination is concerned, candidates who have passed it from Aurangabad University are shown to have secured marks out of 800. It is not in dispute that respondent no.5 has passed out from Aurangabad University. In so far as the B.Ed. examination is concerned, that University was earlier known as "Marathwada University" and presently it is known as "Babasaheb Ambedkar University, Marathwada". Other select list also shows that the marks secured out of 800 have been looked into. It is, therefore, apparent that in so far as the students who have passed out B.Ed. from Marathwada University are concerned, their marks also show Annual Lesson marks as part of written examination.

11. The petitioner before this Court has objected to this inclusion. According to him, Annual Lesson marks are not given after any written examination. This assertion in Writ Petition has not been specifically denied by the respondent nos. 1 and 2.

12. Respondent no.1 in reply-affidavit has only pointed out percentage as secured. Respondent no.5 has pointed out to this Court a communication dated 07.02.2012 sent by Dr. Babasaheb Ambedkar Marathwada University. This communication discloses that mark-sheet is as per syllabus and marks shown are added to the score of the student to give him gradation. Annual Lesson marks are received from the examiner sent by the University, and hence, those marks are also added to the total marks. Respondent no.5 therefore, has been informed that total marks secured by him cannot be altered. Petitioner has pointed out to this Court a reply given by the Assistant Registrar and Information Officer of very same University on 25.10.2011. Petitioner demanded information on 4 issues; First issue is - " What is the procedure and manner for awarding marks of Annual Lesson to Students of B.Ed.?" Answer given to it is on same lines as received by the respondent no.5 and disclosed supra. The second information sought by the petitioner is - " Exactly what Activity B.Ed. Students are required to do and what performance of students is assessed for awarding Marks of Annual Lesson." Answer to it is "as above". Thus, the activity undertaken for Annual lesson has not been disclosed at all in the said reply. Question No.3 on which the petitioner sought information was - " Whether the marks to be awarded for Annual Lesson to B.Ed. students are dependent on any Written Examination like that of other Theory papers in the Course of B.Ed. examination ?" Answer given to it is "Marks given in written examination for Annual Lessons are distinct and have got no relation/bearing with each other." Last question on which the petitioner sought information is - " Whether the B.Ed. students are required to give Written Examination for awarding marks of Annual Lesson like that of other Theory papers in the Course of B.Ed. Examination ?" and answer given to it is - " There is no such provision". The answers given to petitioner, therefore, clearly show that the Annual Lesson marks are given without holding any written examinations.

13. It therefore, follows that those marks could not have been looked into by the respondent nos. 1 and 2 as marks awarded in the Written Examination for B.Ed., hence, selection of respondent no.5 needed to be looked into by ignoring the Annual Lesson marks given to him i.e. 87% marks out of 100.

14. While passing orders in Writ Petition No.234/2010 on 27.02.2010, this Court in paragraph no.8 has observed as under :-

"8. It is obvious that because of different practices in this respect, the uniform policy at this stage cannot be evolved. However, it is for the respondent no.1 to look into this aspect and to attempt to form uniform policy and then to see that mark-sheets issued by all the universities in relation to this examination carry similar marks for written examination and for annual lessons or for practical examination."

However, perusal of the select lists produced on record show that candidates who have secured more marks in annual lessons have been placed at the top of the select list by the Amravati District Selection Committee on 05.04.2011, and also by the respondent nos. 1 and 2, while conducting the selection process in pursuance of advertisement dated 21.10.2010. In present facts, we have noticed that about 87% marks were given to respondent no.5 against his performance in annual lessons. Because of that addition only, he could win a march over the present petitioner. It is, therefore, obvious that a need to evolve uniform practice in this respect exists. All Universities, at least within the State of Maharashtra must, therefore, give marks on uniform basis so as to avoid any undue advantage or prejudice to any students depending on the institution in which he has taken education.

15. We therefore, direct the Registry of this Court to forward copy of this order to various Universities in State of Maharashtra and also to the concerned department of the State of Maharashtra to facilitate further implementation of this direction and to avoid repetition of such incidences. Accordingly, we quash and set aside the selection of respondent no.5. We declare that the petitioner who has secured more marks than respondent no.5, is entitled to be issued appointment orders. We accordingly, direct the respondent nos. 1 and 2 to take necessary steps within a period of eight weeks in this respect.

16. Writ Petition is accordingly allowed. Rule is made absolute in the aforesaid terms with no order as to costs.

Petition allowed.