Allowed

Dhrutimaya Behera v. State of Odisha

Orissa HC14 Dec 2023RVWPET/79/2023

Case brief

AI extract

What is this about?

The High Court of Orissa allowed a review application to modify the operative directions of a previous writ judgment regarding recruitment of music teachers. The court clarified that cut-off marks for the interview must include performance test scores.

What did the court decide?

The review application was allowed to the extent of modifying the directions to include performance test marks in gap fixing for cut-off determination.

Dhrutimaya Behera Vs State of Odisha — Service and Employment | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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RVWPET No.79 OF 2023

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(An application under Order 47 Rule 1 C.P.C. seeking review of the Judgment dated 24.2.2023 passed in W.P.(C) No.14172 of 2018)

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Dhrutimaya Behera and others … Petitioners

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versus-

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State of Odisha and others … Opposite Parties

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Advocates appeared in the case through hybrid mode:

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For Petitioners : Mr.S.P.Mishra,
Sr.Advocate,
Mr.Ramdas Acharya,
Mr.A.K.Dash,
Mr.N.Barik,
Mr.S.Hidayatullah &
Mr.P.K.Mishra
Advocates.
- versus-

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For Opposite Parties : Mr.S.K.Jena, A.S.C.

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-------------------------------------------------------------------------- CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT 14.12.2023.

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Page 1 of 8

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Sashikanta Mishra,J . The present application has been filed

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seeking review of the judgment passed by this Court on 24^th February, 2023 in W.P. (C) No.14172/2018. The aforementioned Writ Petition was filed with the

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following prayer;

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“The petitioners have, therefore, prayed that this Hon’ble Court may be graciously pleased to admit the writ petition, issue a RULE NISI calling upon the Opp. Parties No.2 & 3 to show cause as to why the list prepared under Annexure-6 with regard to the vacant post of music teachers shall not be caused to be modified to include the name of the petitioners to appear in the performance test and interview pursuant to Annexure-1 along with the list prepared under Annexure-6 and if the Opp. Parties no.2 & 3 failed to show cause or shows insufficient cause then the said rule be made absolute by directing the O.P. No.2 & 3 to modify the list under Annexure-6 by including the name of the petitioner to appear in the performance test and interview along with the list under Annexure-6 as per the advertisement under Annexure-1 for 115 posts.”

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2. After hearing the parties, this Court in the aforementioned judgment disposed of the Writ Petition

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with the following directions;

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(i) The cut-off marks fixed by the committee be applied taking into account the marks secured by the petitioners in Part-I, II and III of the CBT. (ii) If they are found to be thus eligible, they shall be called upon to attend the performance test and interview.

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(iii)The petitioners who have already attended the performance test and interview during pendency of the writ petition shall be considered for selection as indicated above.

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RVWPET No.79 of 2023 Page 2 of 8

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(iv)If the petitioners or any of them are found to have been selected considering their total marks, they shall be considered for appointment against the existing vacancies.

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(v) The whole exercise shall be completed within a period of two months from today.”

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3. The present application has been filed on the ground that the directions as at Sl.Nos.(i) and (ii) need to be modified to the extent of adding “performance test” in Sl. No.(i) and deleting “performance test” from Sl.(ii).

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4. Heard Mr. S.P.Mishra, learned Sr. counsel for the Petitioners assisted by Mr. Ramdas Acharya, Mr. A.K.Dash and Mr. N.Barik and Mr. S.K.Jena, learned Addl. Standing for the State.

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5. Learned Senior counsel Mr.Mishra has referred to paragraph-15 of the judgment wherein this Court acknowledged the importance of performance test particularly, in case of recruitment of Music Teachers. On such basis Mr.Mishra would argue that the natural corollary of the analysis made by this

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Court in paragraph-15 of the judgment would be

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RVWPET No.79 of 2023 Page 3 of 8

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fixation of cut-off marks for interview after taking into account the marks secured by the Petitioners in the computer based test (CBT) and performance test. According to Mr.Mishra therefore, the mention of performance test in Sl.No.(ii) of the directions issued in paragraph-17 of the judgment is erroneous and should be deleted.

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6. Mr. S.K. Jena, learned Addl. Standing Counsel for the State, on the other hand, would argue that the

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State has already preferred an intra court appeal being

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W.A.No.79/2023 against the judgment passed by this Court and therefore, it would not be proper at this stage to review the judgment for the purpose of modifying the directions. Secondly, some of the Petitioners have already the attended performance test and interview during pendency of the Writ Petitions and therefore, the prayer for review becomes automatically redundant.

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7. It is trite law that review of a judgment is permissible only on limited grounds namely, to correct

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RVWPET No.79 of 2023 Page 4 of 8

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an error that is apparent on the face of the record. Therefore, a detailed analysis of the facts and law involved in the original case are not to be resorted to. This proposition being so basic, it is not necessary to refer to any case laws in this regard. The present application, and the grounds raised therein therefore have to be considered keeping the above position of law

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in mind. It is contended that, as per Clause-7 read with Clause-8.6 of the advertisement, the cut-off marks for the interview are to be fixed on the basis of marks secured in the CBT (Part (I), (II) and (III)) and performance test. If the performance test is not included the very purpose of holding it particularly in case of Music Teacher would be redundant as has been acknowledged and held by this Court in paragraph-15 of the judgment. There is no provision in the advertisement for fixation of cut-off marks for attending the performance test. Clause-7 (a) of the advertisement reads as follows;

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“(a) Candidates will be selected on the basis of their performance in Computer Based Test (CBT) interview and

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RVWPET No.79 of 2023 Page 5 of 8

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Performance Test as applicable and specified in these modalities put together. The OAVS reserves the right to decide the cut off marks in CBT and interview separately.”

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8. Thus, discretion has been conferred on the employer to decide the cut-off marks in CBT and interview separately. There is thus no provision for fixation of cut-off marks for the performance test though the final merit list is to be prepared on the basis of performance in CBT, interview and performance test. In paragraph-15 of the judgment, this Court held as follows;

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“This Court fails to understand the rationale behind such evaluation of the candidates. It must be remembered that the post of a Music Teacher or any other performing arts cannot be compared lock, stock and barrel with the teacher of any other discipline. It goes without saying that the assessment of a person aspiring to be a Music Teacher can only be on a composite assessment of his ability of which the performance test is an important part, because it is a test of his skill or proficiency in Music as specifically indicated under Clause (iii) of paragraph-10 of the additional affidavit referred to hereinbefore. Therefore, while evaluating candidates for Music Teacher due leverage ought to be provided for the performance test as otherwise, the very purpose of selection would be frustrated. If more importance is given to CBT, it may not bring out the best talent since weightage of as much as 50% has been given to performance in CBT, which in turn has been restricted to Part-II and III only. Of course this is for

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RVWPET No.79 of 2023 Page 6 of 8

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preparing the final merit list. However, by restricting the performance in CBT to only Part-II and III for the purpose of applying the cut-off marks could be contrary to the very spirit of the advertisement. To elucidate, a candidate securing high marks in Part-II and III of the CBT but faring poorly in the performance test may still be selected while a person securing less marks in the current affairs and content test, but securing high marks in the performance test may not. The authorities therefore, should have kept the above in mind while fixing the cut-off marks, particularly in case of candidates for Music Teachers. The fact that the above procedure was actually adopted in the previous recruitment process only goes to fortify the above reasoning and at the same time belies understanding as to why the same was not adopted for the recruitment process in question.”

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9. Thus, this Court intended to emphasize the

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importance of performance test as resulting in a correct and proper assessment of the merit of the candidates. However, in the operative portion of the judgment, it has been inadvertently mentioned that the cut-off marks shall be on the basis of marks secured by the candidates in Part-I, II and III of CBT, who shall then be called upon to attend the performance test. Obviously, this amounts to fixing cut-off marks for attending both the performance test as well as interview which is not only contrary to the

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RVWPET No.79 of 2023 Page 7 of 8

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advertisement as discussed before but also contrary to what this Court actually intended. The proper direction ought to be fixation of cut-off marks for the interview taking into account the marks secured in CBT and performance test.

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10. For the foregoing reasons therefore, the review application is allowed only to the extent of modifying the directions in paragraph-17 (i) & (ii) of the judgment dtd.24.2.2023 in the following manner;

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“the words ‘and the performance test’ be added after the words CBT in Sl.No.(i) and the words ‘ performance test and’ be deleted in Sl.No.(ii)”.

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11. Urgent certified copy of this order be granted

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on proper application.

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………..…….…………….

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Sashikanta Mishra, Judge

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Ashok Kumar Behera Signature Not Verified

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Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, C utta ck Date: 14-Dec-2023 16:01:45

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RVWPET No.79 of 2023 Page 8 of 8

Dhrutimaya Behera v. State of Odisha

Case brief

What is this about?

What did the court decide?

Dhrutimaya Behera v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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