# Noor Ali Ansari v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 455
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-09
- **Case number:** Civil Misc. Writ Petition No.18568 of 2008
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/noor-ali-ansari-v-state-of-u-p-and-others-41100
- **Pages:** 5

## Headnote

456 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Constitution of India, Art. 226-Principle
of rounding up-petitioner appeared in
written examination-got 54.7% marksNo call given for interview-as minimum
eligibility of marks is 55%-the portion
falling less than half to be ignored-but
the half or more than half be treated as
one-if the marks 54.7% work out-it shall
be 55%.

(B) Constitution of India-Art. 226-Right
for
appointment-petitioner
even
if
obtained minimum cut off mark-on basis
of rounding up marks-can not be allowed
in view of the fact those candidates who
have
obtained
54.89%
or
54.99%
marks-can not be superseded as they are
not before the Court.

Held: Para 17 & 18

In a competition like this, there may be
large number of candidates/applicants
who might have secured marks equal to
the petitioner or between 54.75 and
54.99 percent. No factual foundation has
been laid down to the effect that in case
his marks are rounded up to 55 percent,
no person either of general category or
to which the petitioner belongs would
stand superseded.

In such a fact situation, it would be
greatest injustice to those who had
secured better marks than petitioner,
but could not secure 55 percent, the plea
of the petitioner is liable to be rejected
on this ground also. The validity of the
advertisement has been challenged on
various grounds inter-alia that in the
subsequent advertisement, cut off marks
have been reduced from 55 percent to 50
percent. A notification which earlier
cannot be challenged on a ground that a
different criteria had been adopted by
the competent authority at a subsequent
stage. More so, the process of selection
starts
from
the
issuance
of
the
advertisement and is to be complied with
in
conformity
with
the
terms
and
conditions incorporated therein. If for
certain reasons, the cut off marks have
been
reduced
in
subsequent
advertisement, petitioner cannot take
benefit thereof.
Case law discussed;
1995 AWC, 744, (2004) 2 UPLBEC 1445, JT
(1998) 3 SC 223, 2005, ALJ 284, (2005) 2 SCC
10, (2008) 1 SCC 233, (2003) 1 UPLBEC 427,
AIR 1993 Alld 249, (1992) 1 UPLBEC 636

## Text

2 All] Noor Ali Ansari V. State of U.P. and others
455
filed under instructions of the applicants
of that case including Ram Kishan also,
who has filed the present Crl. Misc.
application No. 2643/07 and, therefore, he
can not be permitted to say that Crl. Misc.
application No. 22268 of 2007 was
moved without his instructions. When that
application, filed under his instructions,
had been decided finally with certain
directions and when Ram Kishan instead
of following those directions moved this
fresh Crl. Misc. application No. 26431 of
2007
under
section
482
Cr.P.C.
concealing the order passed by this court
on the previous Crl. Misc. Application no.
22268/07, he is guilty of committing
fraud with the court, and so the order
passed on the subsequent Crl. Misc.
application No. 26431 of 2007 dated
31.10.2007 which has been obtained by
committing fraud with the court, can not
be permitted to sustain and it is liable to
be vacated.

14. Therefore, the application for
recall of the interim order dated 31.10.07
passed in Criminal Misc. Application
No.26431 of 2007 deserves to be allowed
and the interim order dated 31.10.07
passed in the above case is liable to be
vacated. Since Crl. Misc. application No.
26431 of 2007 has been filed for the same
relief which was sought in Crl. Misc.
Application No. 22268/07 concealing the
fact of institution of that previous
application and concealing the order
passed in that case, the present application
no. 26431/07 is not maintainable and it is
hereby dismissed. The Criminal Misc.
Recall Application No. 265084 of 2007 is
allowed and the order dated 31.10.2007
passed in Crl. Misc. Application No.
26431/07 stands recalled.

15.

Before parting with the
judgement, I would like to observe that in
criminal cases also there should be a
provision requiring the party to sign or
put thumb mark on the power/ memo of
appearance/Parcha filed by the Advocate
except in those cases where accused is in
Jail so as to avoid taking of such excuses
in future alleging that the power filed by
Advocate was not valid and that he had no
knowledge of institution of the case. Even
in those cases where the accused is in Jail,
the Power in favour of the counsel must
bear the signature /thumb mark of the
pairokar with his full name and address
with particulars of his relationship with
the accused in Jail.

16. The Registrar General of the
Court is, therefore, directed to take
necessary steps for making suitable
amendments in the relevant Rules in this
regard with the assent of the Hon'ble
Court.
 Recall Application allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.18568 of 2008

Noor Ali Ansari

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava
Sri Z.A. Siddiqui

Counsel for the Respondents:
Sri H.N. Singh
Sri R.B. Pradhan
S.C.
456 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Constitution of India, Art. 226-Principle
of rounding up-petitioner appeared in
written examination-got 54.7% marksNo call given for interview-as minimum
eligibility of marks is 55%-the portion
falling less than half to be ignored-but
the half or more than half be treated as
one-if the marks 54.7% work out-it shall
be 55%.

(B) Constitution of India-Art. 226-Right
for
appointment-petitioner
even
if
obtained minimum cut off mark-on basis
of rounding up marks-can not be allowed
in view of the fact those candidates who
have
obtained
54.89%
or
54.99%
marks-can not be superseded as they are
not before the Court.

Held: Para 17 & 18

In a competition like this, there may be
large number of candidates/applicants
who might have secured marks equal to
the petitioner or between 54.75 and
54.99 percent. No factual foundation has
been laid down to the effect that in case
his marks are rounded up to 55 percent,
no person either of general category or
to which the petitioner belongs would
stand superseded.

In such a fact situation, it would be
greatest injustice to those who had
secured better marks than petitioner,
but could not secure 55 percent, the plea
of the petitioner is liable to be rejected
on this ground also. The validity of the
advertisement has been challenged on
various grounds inter-alia that in the
subsequent advertisement, cut off marks
have been reduced from 55 percent to 50
percent. A notification which earlier
cannot be challenged on a ground that a
different criteria had been adopted by
the competent authority at a subsequent
stage. More so, the process of selection
starts
from
the
issuance
of
the
advertisement and is to be complied with
in
conformity
with
the
terms
and
conditions incorporated therein. If for
certain reasons, the cut off marks have
been
reduced
in
subsequent
advertisement, petitioner cannot take
benefit thereof.
Case law discussed;
1995 AWC, 744, (2004) 2 UPLBEC 1445, JT
(1998) 3 SC 223, 2005, ALJ 284, (2005) 2 SCC
10, (2008) 1 SCC 233, (2003) 1 UPLBEC 427,
AIR 1993 Alld 249, (1992) 1 UPLBEC 636

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. Petitioner is said to be a member
of Other Backward Class. He made an
application for being considered to the
post
of
Lecturer
in
terms
of
Advertisement No. 38 published by the
Uttar Pradesh Higher Education Services
Commission.

2. According to the petitioner, he
was successful in the written examination,
but was not called for interview on the
ground that he did not fulfil the minimum
standard prescribed for the post in
question i.e. did not secure 55 percent
qualifying marks. To be precise, the
controversy relates to rounding up the
fraction of the, marks obtained by the
petitioner in respect of his Graduate
examination wherein he obtained 54.7
percent. His contention is that it should be
read as 55 percent which is tile minimum
standard prescribed for the post in
question in terms of the aforesaid
Advertisement.

3. We have heard Shri Arvind
Srivastava,
learned
counsel
for
the
petitioner; Shri H.N. Singh for U.P.
Higher Education Service Commission
and Shri R.B. Pradhan, learned Standing
Counsel.

4. The facts are not in dispute. The
minimum marks required for being
considered for the post in question is 55
percent. The petitioner has admittedly
2 All] Noor Ali Ansari V. State of U.P. and others
457
obtained less than 55 percent, i.e. 54.75
percent.

5. The word 'minimum' has been
defined in The New Lexicon Webster's
Dictionary Deluxe Encyclopedic Edition
at page 63 and means "the least possible
amount, number or degree". Thus, it is
clear that 55 percent is the least possible
percentage which the candidate should
obtain for being considered eligible for
the post in question.

6. In the opinion of the Court, the
process of rounding up, in the facts of the
case, has no application inasmuch as
percentage prescribed is followed by the
word minimum' under the aforesaid
advertisement and the Rules applicable.

7. The Regulations framed under the
U.P. Intermediate Education Act, 1921,
particularly, Regulations 2, 4 and 10 of
Chapter III provide for promotion to Class
III post from Class IV post contains a note
that while determining 50 percent posts,
the portion falling less than half, will be
left out and the portion of half or above
half will be considered to be one. Thus, in
many cases, the Legislature itself has
taken care of providing for solution to
such a problem. This aspect has been
considered by this Court in Kedar Nath
Maurya & ors Vs. District Inspector of
Schools & Ors., 1995 AWC, 744.

8. In Prana Vir Singh (Dr.) Vs.
Chancellor,
Chandra
Shekhar
Azad
University
of
Agriculture
and
Technology, Lucknow & Ors, (2004) 2
UPLBEC 1445, a similar controversy was
raised. This Court placing reliance upon
the judgment of the Hon'ble Supreme
Court in Post Graduate Institute of
Medical
Education
and
Research,
Chandigarh Vs. Faculty Association &
Ors., JT (1998) 3 SC 223, held that while
making such calculation of posts to be
filled up by reserved category candidates,
the Court has to bear in mind that it
should not exceed the permissible limit
fixed for reserved category.

9. In Chandra Kant Bhardwaj Vs.
State of U, P. & Anr., 2005, ALJ 284, this
Court applied the theory of rounding up
while
determining
the
number
of
vacancies. However, this was a matter
determining the number of vacancies.
Same formula may be applicable while
determining the number of required votes
for sending the notice for holding the no
confidence motion or for removal of an
elected office bearer under various
statutes.

10. Counsel for the petitioner has
made reference to the judgments of the
Hon'ble Supreme Court in the cases of
State of U.P. & Anr. Vs. Pawan Kumar
Tiwari & Ors., (2005) 2 SCC 10; Bhudev
Sharma Vs. District Judge, Bulandshahr
& Anr., (2008) 1 SCC 233, and State of
Punjab & Anr. Vs. Asha Mehta, (1997) 11
SCC 410 and has contended that if the
fraction is .5 or above it has to be rounded
up so as to read as 1. On the same
analogy, the petitioner contends that the
marks obtained by the petitioner should
be rounded up and should be read as 55
percent.

11. So far as the judgments in the
State of U.P. & Anr. Vs. Pawan Kumar
Tiwari & Ors (supra) and Bhudev Sharma
Vs. District Judge, Bulandshahr & Anr
(supra) are concerned, they are clearly
distinguishable from the facts of the
present case inasmuch as in the aforesaid
cases, the issue for consideration was
458 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
regarding the percentage of reservation
provided for a particular category. The
percentage so provided was not qualified
or to be governed by the word minimum,
The principle of rounding up is based on
logic and common sense: if part is onehalf or more, its value shall be increased
to one and if part is less than half then its
value shall be ignored. More so, while
making such a calculation, the Court must
keep in mind that the number of reserved
vacancies do not exceed the permissible
limit i.e. 50 percent.

12. In Pawan Kumar Tiwari (supra),
the Hon'ble Apex Court refused to round
up 1.86 to 2 for Scheduled Tribes
observing that no candidate belonging to
Scheduled Tribe had challenged the
determination, therefore, it is evident
from the aforesaid judgment that the law
laid down therein is not of universal
application.

13. So far as the judgment in the
case of State of Punjat1 & Anr. Vs. Asha
Mehta (supra) is concerned, the judgment
specifically records that it had been a
procedure
of
the
Public
Service
Commission in all other cases, therefore,
the Hon'ble Supreme Court refused to
entertain the appeal without recording
anything further merely being its order on
the principle that practice adopted for a
long period should not be disturbed. Such
a judgment cannot be relied upon by the
petitioner except in support of the
contention which has been canvassed
before us.

14. The case in hand is squarely
covered by the Division Bench judgment
of this Court in Vani Pati Tripathi Vs.
Director General, Medical Education and
Training, Jawahar Bhawan, Ashok Marg,
Lucknow & Ors., (2003) 1 UPLBEC 427,
wherein this Court considered large
number of its earlier judgments making
calculations to find out the exact number
of members required for removal of an
elected office bearer of the local bodies,
particularly, Wahid Ullah Khan Vs.
District Magistrate, Nainital & Ors, AIR
1993 Alld 249 and Rajan Seth Vs. State
of U.P. & Ors., (1992) 1 UPLBEC 636
and came to the conclusion that where
inter-se merit of the candidates is to be
examined, the rounding up theory is not
applicable. In the said case, the candidate
seeking admission in the MBBS course
could not secure the exact qualifying
marks i.e. at least 50 percent and her
contention that marks secured by her to
the extent of 49.67 percent be rounded up
and be read as 50 percent was rejected.

15. It is admitted by Shri Arvind
Srivastava,
learned
counsel
for
the
petitioner that against the said judgment
and order in Vani Pati Tripathi (supra),
the Hon'ble Supreme Court has rejected
the Special Leave Petition.

16. In view of the above, we do not
see any cogent reason to take a view
contrary to the view taken by the Division
Bench of this Court earlier in the case of
Vani Pati Tripathi (supra).

17. In a competition like this, there
may
be
large
number
of
candidates/applicants who might have
secured marks equal to the petitioner or
between 54.75 and 54.99 percent. No
factual foundation has been laid down to
the effect that in case his marks are
rounded up to 55 percent, no person either
of general category or to which the
petitioner
belongs
would
stand
superseded.
2 All] Lekhraj V. State of U.P.
459
18. In such a fact situation, it would
be greatest injustice to those who had
secured better marks than petitioner, but
could not secure 55 percent, the plea of
the petitioner is liable to be rejected on
this ground also. The validity of the
advertisement has been challenged on
various grounds inter-alia that in the
subsequent advertisement, cut off marks
have been reduced from 55 percent to 50
percent. A notification which earlier
cannot be challenged on a ground that a
different criteria had been adopted by the
competent authority at a subsequent stage.
More so, the process of selection starts
from the issuance of the advertisement
and is to be complied with in conformity
with
the
terms
and
conditions
incorporated
therein.
If
for
certain
reasons, the cut off marks have been
reduced in subsequent advertisement,
petitioner cannot take benefit thereof.

In view of the aforesaid, writ petition
lacks merit and is accordingly dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No.6269 of
2008

Lekhraj.

...Appellant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Mohd. Irfan

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 482complaint filed by the applicant-found
false-at the time of delivering judgmentdirection issued to the S.S.P. to lodge
FIR against applicant for offence under
Section 182 I.P.C.-held-it can be directed
only on the complaint/application by the
Public authority under whom workingeven otherwise bar created by section
195 (i) Cr.P.C.-order so for it relates to
lodging FIR-quashed.

Held: Para 6

Section 195 Cr.P.C. bars the lodging of
FIR for certain offences. According to
sub section (1) (a)(I) of section 195
Cr.P.C.
cognizance
for
the
offence
punishable under section 182 IPC can be
taken on the complaint in writing of the
public servant concerned or of some
other public servant to whom he is
administratively subordinate. In view of
this specific bar created by section 195
(1)(a)(I) Cr.P.C., the learned Sessions
Judge Rampur at the time of passing the
judgment in Session Trial No. 223 of
2007
had
no
jurisdiction
to
issue
direction to S.S.P. Rampur, to get the
FIR lodged against the informant for the
offence punishable under section 182
I.P.C.

(Delivered by Hon'ble Viiay Kumar Verma, J.)

1. Heard Sri Mohd. Irfan learned
counsel for the applicant, learned AGA
for the State and perused record.

2. By means of this application
under section 482 of the Code of Criminal
Procedure (in short the 'Cr.P.C.'), the
applicant
has
invoked
inherent
jurisdiction of this Court, praying for
quashing of that part of the judgment
dated 20.02.2008 passed by Sri N.K. Jain,
the then Sessions Judge Rampur in S.T.
No. 223 of 2007 (State Vs. Mahendra &
others), whereby SSP Rampur has been
directed to get the FIR lodged against the