1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No. 13846/2010 Sulochana Sharma Versus State of Rajasthan & ors Date of Order : December 22, 2010 HON'BLE MR. JUSTICE MN BHANDARI Mr Swaraj Sharma - for the petitioner Mr RA Katta – for respondents BY THE COURT: REPORTABLE With the consent of learned counsel for parties, the writ petition has been heard finally at this stage itself since controversy involved in this matter is in regard to admission in BSTC course. The matter pertains to admission in BSTC course. An advertisement was issued by respondents calling for application from eligible candidates. Educational qualifications were provided in column (B). For general category minimum percentage provided is 45 at the level of Senior Secondary or equivalent qualification. For divorced or widow female candidates, it is provided as 33%. Petitioner, having 44.62%, applied for entrance examination of BSTC. She was allowed to appear but, by a 2 corrigendum, respondent State amended the educational qualification making it minimum 50% for general category and 45% for reserve categories at the level of senior Secondary or equivalent qualification. Criteria has been changed to make it in consonance to the Regulations made by the National Council of Teacher Education (for short 'the NCTE') which were published initially in the year 2007 and superseded by the Regulations of 2009. In the Regulations, minimum educational qualification for general caste category is provided as 50% at the level of Senior Secondary or equivalent examination. 5% relaxation is provided for reserve category candidates. Petitioner's case is that even if Regulations of 2009 are made applicable to the present matter, petitioner is entitled for admission in BSTC course as percentage of marks at the level of Senior Secondary 44.62%, needs to be rounded off. Petitioner has placed reliance on the judgment of this court in the case of Rajul Arora Versus Jai Narain Vyas University & anr (2006(2) RLW 1054), Kumari Praveen Versus Maharshi Dayanand Saraswati University & anr (2008 WLC(Rajasthan) UC 775 and lastly relied upon the judgment in the case of State of UP and anr versus Pawan Kumar Tiwari and ors (2005) 2 SCC 10. It is submitted that in all these matters, not only earlier judgments were considered but relying on the Division Bench judgment, rounding off the marks were permitted as it is based on well accepted norms. 3 Learned counsel for respondents, on the other hand, contested the matter. It is stated that corrigendum was issued to make State action in consonance to the Regulations of NCTE. Firstly, by introducing Regulations in 2007 minimum percentage of marks at the level of Senior Secondary was provided as 50% and 45% for reserve categories. Regulations of 2007 were superseded by the Regulations of 2009, however, educational qualification therein has been maintained as it is. Since challenge has not been pressed by learned counsel in regard to corrigendum, the only question requires to be answered is as to whether rounding off the marks is permissible in this case or not. This is more so when no provision exist under the Regulations of 2009 to permit rounding off the marks. Relying on the judgment of Division Bench in the case of Dr Rajiv Mangal Versus Rajasthan University of Health Sciences & anr (AIR 2007 (Rajasthan) 186), it is submitted by the respondents that this court has not permitted rounding off marks taking into consideration Regulations applicable therein. It was after referring to the judgment of the Hon'ble Apex Court in the case of State of UP & anr Vs Pawan Kumar (supra) so as the Division Bench of this court in the case of Jai Narain Vyas University versus Budha Ram Choudhary (DB Civil Special Appeal No.30/2006, decided on 12.1.2006 at Principal Seat, Jodhpur. Since it is a well considered judgment and 4 has taken note of another judgment of Division Bench so as the judgment of Hon'ble Supreme Court, present matter is covered by the aforesaid decision. A further reference has been made to the judgment of Kerala High Court in the case of Lissy Cleatus Versus Mahatma Gandhi University (AIR 2010 Kerala 175) wherein similar issue was answered holding the rounding off as not permissible. I have considered rival submissions of learned counsel for parties and scanned the matter carefully besides going through the judgments cited at the Bar. Petitioner has forgiven her contest to the challenge to the corrigendum issued by the State Government providing minimum 45% marks for reserve categories at the level of Senior Secondary thus petitioner being widow needs to have minimum 45% marks at the level of Senior Secondary, accordingly, press the argument for extending benefit of rounding off. Before discussing the matter further it would be gainful to refer rule position in that regard. The NCTE is the controlling authority and is competent to provide qualification for different teachers training courses pursuant to National Council of 5 Teacher Education Act, 1993. As per provisions of the Act of 1993 there exist powers to make Regulations. The Regulations were made in the year 2009 and are applicable to this case. Appendix-2 thereof provides required minimum educational qualification and are thus quoted for ready reference:- “Eligibility (a) Candidates with at least 50% marks in the senior secondary (+2) or its equivalent examination are eligible for admission. (b) The reservation for SC/ST/OBC and other categories shall be as per the rules of the Central Government/ State Government, whichever is applicable. There shall be relaxation of 5% marks in favour of SC/ST/OBC and other categories of candidates.” Provision quoted above shows that one should possess minimum 50% marks at the level of Senior Secondary or equivalent qualification with 5% relaxation to reserve category. The issue is now as to whether a candidate is eligible to seek benefit of rounding off the marks to qualify for admission in BSTC course and, if that is so, whether it would not be in violation of Regulations quoted above. Similar controversy came up before the Division Bench of this court in the case of Dr Rajiv Mangal (supra). Referring to the rule thereunder it was held that principle of 6 rounding off cannot be applied because it would then violates requirement of minimum percentage of marks for eligibility. It was held that rounding off marks would mean tinkering with the eligibility condition, which is not permissible. The aforesaid was the case pertaining to admission to Post-graduate course in Medical College. The ratio decidendi of the aforesaid applies to this case also, in view of the provisions quoted above. The judgment of the Hon'ble Apex Court in the case of State of UP & anr (supra) has been relied upon by the petitioner and which judgment has been relied in other judgments cited at the Bar. In the aforesaid judgment, treatment of fraction of vacancy was directed to be held as one if fraction is one-half or more and if less than one-half then it should be ignored. If the facts of the aforesaid case are looked into then it comes out that fraction of one in regard to post meant for different category of candidates which includes general and reserve class candidates was the issue therein. A post cannot be divided with fraction thus mechanism of rounding off was adopted. Accordingly, it was held that rule of rounding off is based on logic and common sense. Part of one-half or more should be increased to one and if part is less than one-half then its value should be ignored. Therein the percentage of posts worked out for general category candidate was found to be 46.50 thus it was rounded off and similar mechanism was adopted for 7 other category. Para 7 of that judgment are quoted thus - “7. We do not find fault with any of the two reasoning adopted by the High Court. The rule of rounding off based on logic and common sense is: 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. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment.” If the facts of the aforesaid case is looked into, it pertains to determination of post/ vacancies. Since there cannot be a post or vacancy in fraction, hence fraction needs to be rounded off. In my opinion, rounding off should be allowed where fraction of one is not workable as was the case before the Hon'ble Apex Court. In a case where fraction of number is not unworkable like the present case it should be kept as it is. Rather, by rounding off fraction, rule is violated. For illustration, if a rule requires minimum percentage of marks to be 50%, to achieve that number, 49.5% should not be made as 50%, otherwise, without possessing the required minimum percentage of marks, one is given benefit. The Division Bench of this court in the case of Dr Rajiv Mangal (supra) has rightly denied application of rounding off taking it to be in violation of rules. Thus, for applying rounding off marks, one should keep in mind that if fraction of number is not workable, it should be counted either one or zero depending upon 8 the fraction to be one-half or less then it. However, same may not be made applicable in other cases more so when it violates statutory provisions. To illustrate, there is a determination of vacancies, determination of reserve posts for appointment, reservation of seats in elections etc i.e. where fraction of one is not workable. In other case like for having requisite minimum percentage in qualifications or like cases, fraction should not be made one or zero so as to make one eligible in violation of rules. When rule provides minimum marks to be 50%, less than it should not be accepted for eligibility otherwise, in my view, it violates the rules. Para 21 of the judgment in the case of Dr Rajiv Mangal (supra) is quoted thus - “21. It is true that the Division Bench judgment of this court in the case of admission to LL.B. Course has held that where the marks secured by the candidate is more than half of the fraction, he may be given the benefit of rounding off and that is also the view of the two single Benches in the cases of Miss Parul Agarwal and ors v. University of Rajasthan & others, 2002 (5) WLC (Raj) 824: (AIR 2002 SC 70) (relating to admission to MBA examination) and the case of Dinesh Singh, 2005 WLC (Raj) UC 13 (relating to admission to LL.B. course). But in so far as the present case is concerned, it relates to PG admission through entrance test for which minimum percentage of marks for eligibility for admission is provided in Regulation 9 framed by Medical Council of India and Regulation 9 or for that matter rule 2()(3) of the Instructions Booklet for Pre-PG Medical Examination- 2007, in our considered view, does not admit of rule of rounding off.” 9 Perusal of the para quoted above shows that emphasis was made to Regulation 9 for determination of the issue as to whether rounding off can be applied or not. Therein, earlier judgments were also considered. The case of Kumar Praveen (supra) is of the year 2008 whereas Regulations providing minimum percentage in qualification have been brought in the year 2009 and reference of Regulations of 2007 do not exist, whereas, now in reference to Division Bench judgment in the case of Dr Rajiv Mangal (supra) rule is required to be taken note of. As per the Regulations of 2009 quoted above, rounding off cannot be permitted so as to make an ineligible candidate as eligible. In the light of the discussion made above, the only ground urged before me for rounding off the marks cannot be accepted so as to make an ineligible candidate to be eligible when rules requires minimum 50% or 45% marks at the level of Senior Secondary in a given case. A candidate with short of marks by fraction cannot be made eligible so as to violate the rules. In view of discussion made above, the writ petition is dismissed with no order as to costs. (MN BHANDARI), J. bnsharma