Central Administrative Tribunal - Delhi
Sh. Mandeep vs Commissioner Of Police on 10 October, 2013
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.917/2013
with
O.A.No.1062/2013, MAs 818, 1201 and 1203 of 2013
O.A.No.1066/2013, MAs 1209 and 1211 of 2013
O.A.No.1160/2013, MAs 877, 1205 and 1207 of 2013 and
O.A.No.802/2013
Order Reserved in OA 802/2013 on 12.09.2013 and
Order Reserved in all other OAs on: 29.08.2013
Order pronounced on 10.10.2013
Honble Shri V. Ajay Kumar, Member (J)
Honble Shri V. N. Gaur, Member (A)
O.A.No.917/2013:
Sh. Mandeep
S/o Sh. Rajbir
R/o V.P.O. Saidpur
Distt. Sonepat
Tehsil Kharkhoda
Haryana 131402. Applicant
(By Advocate: Shri Ajesh Luthra)
Versus
Commissioner of Police
PHQ, MSO Building
IP Estate
New Delhi.
Staff Selection Commission
Through its Chairman
Block No.12, CGO Complex
Lodhi Road
New Delhi 3.
Virendra Kumar
Sh. Mohar Singh
R/o Village Jalal Pur
Hapur Road
Meerut U.P.
Virender Dahiya
S/o Suresh Kumar
R/o B-3/98 IInd Floor
Sector-16
Rohini
Delhi.
Amir Nehra
S/o Sh. Ramphal Nehra
R/o V.P.O.Barsala (Jind)
Haryana.
Satender Pal
S/o Satpal Kajla
R/o V.P.O. Tokas
Hisar (Haryana)
Gurtej Singh
S/o Jai Singh
R/o V.P.O.Dhos
Distt. Kaithal,
Haryana.
Manoj Kumar Tomar
S/o Sh. Indra Singh
R/o V.P.O.Kandera
Dist.. Baghpat (U.P.)-250620 Respondents
(By Advocate: Sh. S.M.Arif, for the official respondents and
Sh. M.K.Bhardwaj, for the Interveners)
with
O.A.No.1062/2013:
Sudeep
S/o Sh. Ram Chander
R/o VPO Silana
The. Jhajjar
Haryana.
Keshav Dalal
S/o Sh. Ishwar Singh
R/o C-74, Minto Road Complex
Minto Road
New Delhi 2. Applicants
(By Advocate: Shri Ajesh Luthra)
Versus
Commissioner of Police
PHQ, MSO Building
IP Estate
New Delhi.
Staff Selection Commission
Through its Chairman
Block No.12, CGO Complex
Lodhi Road
New Delhi 3.
Arun Kumar
s/o Sh. Vijender Kumar
r/o House No.122
Village Karawal Nagar
Delhi 110 094.
Aadi Gaur
S/o Sh. J.P.Gaur
R/o H.No.C-73, Ist Floor
Ashok Vihar-I
New Delhi 52.
Manjeet Kumar
S/o Sh. Dharampal Singh
R/o H.No.C-4/21, Yamuna Vihar
New Delhi-53.
Ms. Kamlesh Chahar
D/o Shri Ramkaran
R/o Gali No.2, Uttarakhand Enclave
Near D.V.S.School, Burari
New Delhi 84.
Ms. Jyoti
D/o Sh. Surender
R/o H.No.474, V.P.O.Nangal Thakran
Delhi 39.
Ms. Poonam Suyal
D/o Sh. Satish Chander Suyal
R/o C-II/21 Lodhi Colony
Delhi 3.
Sh. Narayan Ojha
S/o Tarkeshwar Ojha
R/o Quarter No.37-M
Police Colony
Model Town-II
Delhi 9. Respondents
(By Advocate: Sh. S.M.Arif, for the official respondents and
Sh. Rajesh Kumar, for the Interveners)
O.A.No.1066/2013:
Johny Kumar
s/o Sh. Ram Kumar
r/o 476C/1, Azadpur Village
Delhi 110 033. Applicant
(By Advocate: Sh. Ajesh Luthra)
Versus
Commissioner of Police
PHQ, MSO Building
IP Estate
New Delhi.
Staff Selection Commission
Through its Chairman
Block No.12, CGO Complex
Lodhi Road
New Delhi 3.
Arun Kumar
s/o Sh. Vijender Kumar
r/o House No.122
Village Karawal Nagar
Delhi 110 094.
Azadi Gaur
S/o Sh. J.P.Gaur
R/o H.No.C-73, Ist Floor
Ashok Vihar
New Delhi 52.
Manjeet Kumar
S/o Sh. Dharampal Singh
R/o H.No.C-4/21, Yamuna Vihar
New Delhi 53.
Ms. Kamlesh Chahar
D/o Sh. Ramkaran
R/o Gali No.2, Uttarkhand Enclave
Near D.V.S.School
Burari
New Delhi 84.
Ms. Jyoti
D/o Sh. Surender
R/o H.No.474, V.P.O.Nangal Thakran
Delhi 39.
Ms. Poonam Suyal
D/o Sh. Satish Chander Suyal
R/o C-II/21 Lodhi Colony
Delhi 3.
Sh. Narayan Ojha
S/o Tarkeshwar Ojha
R/o Quarter No.37-M
Police Colony
Model Town-II
Delhi 9. Respondents
(By Advocate: Sh. S.M.Arif, for the official respondents and
Sh. Rajesh Kumar, for the Interveners)
O.A.No.1160/2013:
Parveen
S/o Sh. Suresh Kumar
R/o VPO Gosain Khera
The Julana Jind
Haryana 126114.
Mandeep Kumar
S/o Sh. Ramdhari
R/o Village-Habatpur
P.P.Nirjan
Haryana 126102. Applicants
(By Advocate: Sh. Ajesh Luthra)
Versus
Commissioner of Police
PHQ, MSO Building
IP Estate
New Delhi.
Staff Selection Commission
Through its Chairman
Block No.12, CGO Complex
Lodhi Road
New Delhi 3. Respondents
(By Advocate: Sh. S.M.Arif, for the official respondents)
O.A.No.802/2013:
Mohit Rana
s/o Late Ram Kumar Rana
R/o H.No.32-A
VPO Qutubgarh
Delhi 110 039. Applicant
(By Advocate: Sh. Sondhi Narula Dalal)
Versus
Staff Selection Commission
Through its Chairman
Block No.12, CGO Complex
Lodhi Road
New Delhi 3.
Delhi Police
Through its Commissioner
Police Headquarters
I.T.O.
New Delhi 110 001. Respondents
(By Advocate: Sh. S.M.Arif, for the official respondents)
O R D E R
By V. Ajay Kumar, Member (J):
Since the issue involved in all these OAs is identical, they are being disposed of by this common order. However, for the sake of convenience, the facts from OA No.917/2013 are taken for consideration.
2. The 2nd Respondent, vide Annexure A3 Advertisement, called for applications from eligible candidates for recruitment of Sub Inspectors (Executives) in Delhi Police, 2012. The last date for submission of applications was 06.07.2012. The relevant instructions of the said advertisement read as follows:
5. ESSENTIAL QUALIFICATIONS as on Closing Date i.e., 06.07.2012 Essential Qualifications: A Bachelors Degree from a recognized University or equivalent.
B - Male candidates must posses a valid Driving License for LMV (Motor Cycle and Car) on the date fixed for Physical Endurance & Standard Tests.
NOTE 1:- The candidates must have acquired the Bachelor Degree or equivalent as on closing date of receipt of application. xxxx xxx xxx xxxx xxxx 8. SCHEME OF EXAMINATION: The examination will consist of a Written Examination (400 marks), PET/ME which will be of qualifying nature and Interview-cum-Personality Test (100 marks).
Written Examination.
PAPER-1 Subject Number of Questions Maxi-mum Marks Duration/ Time Allowed Part A General Intelligence and Reasoning 50 50 Part B General Knowledge and General Awareness 50 50 Part C Quantitative Aptitude 50 50 Part D English Comprehension 50 50 PAPER-II Subject Maximum Marks/Questions Duration and timing English language & Comprehension 200 marks/200 questions Two Hours 2.00 PM to 4.00 PM Questions in both papers will be of Objective Multiple Choice Type. Questions will be set in Hindi and English in Parts A, B and C of Paper I. In case of discrepancy, the English version will prevail.
Deduction of 0.25 marks will be made for each incorrect answer marked on OMR Answer Sheet.
Note:1 Paper-I and II of the Written Examination will be held on the same day. However, the Commission may, at its discretion, decide to hold Paper-I of the Written Examination initially and candidates shortlisted for PET/Medical Examination may only be asked to appear in Paper-II subsequently. Paper-II of shortlisted candidates ho qualify in PET/Medical Examination will only be evaluated. Only those candidates who secure qualifying marks in Paper-I of the Written Examination as fixed by the Commission, at its discretion, will be shortlisted for PET/Medical Examination. Candidates will be called for Personality Test/Interview on their combined performance in Paper-I and Paper-II.
NOTE-II: Candidates are not permitted to bring/use Mobile Phone, Calculator or any other electronic/electrical device for answering any paper. Candidates must not, therefore, bring Mobile Phone, Calculator or any other electronic/electrical device inside the Examination premises. Possession of these items, whether in use or not, will be considered as use of unfair means in the Examination and will lead to summary rejection of candidature besides debarment from the Commissions examination for a period up to 5 years.
NOTE-III: Discrepancies in Question Paper, if any, may be brought to the notice of the Commission in writing within 15 days of holding the examination or after placement of answer keys on the website of the Commission, whichever is later. Representation submitted thereafter will not be considered. xxxxx xxxxx xxxx xxxxx 9. SYLLABUS xxxxx xxxxx xxxx xxxx xxxx xxxx NOTE-I: The Commission shall have the discretion to fix different minimum qualifying standards in each part of Paper I taking into consideration among others, category-wise vacancies and category-wise number of candidates. Only those candidates, who have scored above the cut off marks fixed by the Commission in Paper I would be required to appear in the Physical Endurance Test/Medical Examination.
NOTE-II: Marks received in Paper-I will be used to screen the candidates for appearing for PET/Medical Examination. Marks of such screened candidates in Paper I if they are successful in PET/Medical Examination, will be taken into account along with marks in Paper II for selecting them for the interview and also final selection.
NOTE-III: The Commission will be using a software to direct attempted irregularities in an examination Hall/Sub-Centre/Centre/State. The Candidates are advised to desist from use of any unfair method in the examination hall which will render them ineligible for appointment based on this recruitment and also lead to their debarment from Commissions examinations in future. 10. PHYSICAL ENDURANCE TEST (PE) is MANDATORY FOR THE POST.
NOTE-I: Candidates will have to undergo mandatory PET/MEDICAL Examination. Conduct of PET/Medical examination will be the responsibility of Delhi Police and will be held at Delhi or headquarters of Regional Offices of the Commission as the Commission will decide in due course depending upon the number of candidates qualified in Paper-I of the Written Examination.
NOTE-II: Only those candidates who secure qualifying marks in Paper I of the written examination, as may be fixed by the Commission at their discretion, will be shortlisted for Physical Endurance Test (PET/PST and medical test. Paper-II of shortlisted candidates who qualify in PST/PET will only be evaluated. Candidates will be called for Personality Test/Interview based on their combined performance in Paper-I and Paper-II.
xxxx xxxxx xxxxx xxxxx xxxx 12. MODE OF SELECTION:
After the written Examination and the Interview/personality test, the Commission will draw up an All India Merit List and, in that order, as many candidates as are found by the Commission to have qualified in the Examination shall be recommended for appointment upto the number of unreserved vacancies available taking into consideration their options for the posts included in the examination.
The Commission will recommend the candidates in the Merit List on the basis of the aggregate marks obtained by the candidates in the written examination and interview/personality test.
Provided that SC, ST and OBC, (including minority community with OBC) who are selected on their own merit without relaxed standards, along with candidates belonging to other communities, will not be adjusted against the reserved share of vacancies. Such SC, ST, OBC will be accommodated against the general/unreserved vacancies as per their position in the overall Merit List. The reserved vacancies will be filled up separately from amongst the eligible SCs, STs, OBCs candidates which will, thus, comprise of SC, ST, OBC and Minorities candidates who are lower in merit than the last general candidate on merit list of unreserved category but otherwise found suitable for appointment by relaxed standard.
An Ex-Serviceman candidate who qualifies on the basis of relaxed standards viz. age limit, experience or qualifications, permitted number of chances in written examination, extended zone of consideration, etc. or who have not obtained civilian employment will be counted against reserved vacancies, and not against general vacancies subject to fitness of such candidate for selection. Such candidates will also be recommended at the relaxed standards to the extent the number of vacancies reserved for them, to make up for the deficiency in the reserved quota, irrespective of their rank in the order of merit. Deduction from the age of Ex-Servicemen is permissible against the reserved or unreserved posts and such exemption cannot be termed as relaxed standards in regard to age.
NOTE-1: Success in the examination confers no right of appointment unless government are satisfied after such enquiry as may be considered necessary that the candidate is suitable in all respects of appointment to the service/post.
NOTE-II: The candidates applying for the examination should ensure that they fulfill all the eligibility conditions for admission to the examination. Their admission at all the stages of examination will be purely provisional, subject to their satisfying the prescribed eligibility conditions. If, on verification, at any time before or after the written examination and interview, it is found that they do not fulfill any of the eligibility conditions, their candidature for the examination will be cancelled by the Commission.
13. RESOLUTION OF TIE CASES In case where more than one candidate secure the equal aggregates marks, tie will be resolved by applying the following methods one after another:-
Total marks in written examination.
Marks in Paper-II Marks in Paper-I Date of birth, with older candidates placed higher.
Alphabetical order in the first names of the candidates appear.
3. In pursuance of the aforesaid advertisement, the applicant submitted his application, under Unreserved category, within the stipulated time. He was allotted with the Roll No.2201021200 and participated in the Part-I and Part-II of the written examination and obtained marks of 148 (out of 200) and 130.5 (out of 200) respectively. He also participated in the Physical Endurance Test (PET) and Medical Test and on successful completion of the same, he was called for the interview on 02.02.2013 in which also he fared well.
4. The 2nd Respondent, Staff Selection Commission (SSC) vide Annexure A1 declared the final results. In the said declaration of final results, notified on 01.03.2013, for the first time, the 2nd Respondent informed that cut off marks for the interview at 25% for Unreserved category and 20% for other categories, i.e., 25 and 20 for Unreserved and other categories respectively as the total marks fixed for Interview are 100 , has been fixed and applied and the relevant para reads as follows:
3. Cut-off in Interview of 25% for UR category and 20% marks for other categories has been fixed by the Commission in view of importance of personality in candidate considered for the post. Interview (Personality Test) is of 100 marks and accordingly cut-off of 25.00 for UR and 20.00 for other categories was applied.
5. As per the said final result, the applicant was awarded only 19 marks in the interview. Though the total marks secured by the applicant, [i.e., Part-I (148 marks), Part-II (130.50 marks) of the Written Examination and in the Interview (19 marks)], are 297.50, which is more than the total marks secured by the last selected candidate under the Unreserved category, i.e., 295 marks, but in view of the fixation of the cut off marks of 25 in interview, the respondents denied selection to the applicant. Aggrieved by the said action, the applicant preferred the present OA seeking to quash Clause 3 of the Annexure A1 declaration of final results and their action in fixing the cut off marks for interview and consequently to consider his case as per the total marks obtained by him. The applicants in the other O.As are also similarly placed, and were not selected, only, due to the said fixation of cut of marks in the interview, in their respective categories such as SC, ST, etc.
6. Admittedly, the respondents nowhere in the Annexure A3 Advertisement fixed any cut off marks or percentage for Interview. Under Note 1 to Instruction 8 of the Annexure A3 - Advertisement, i.e., Scheme of Examination it was mentioned that Part-I and II of the Written Examination will be held on the same day, however, the Commission may, at its discretion, decide to hold Paper-I of the Written Examination initially and candidates short listed for PET/Medical Examination may only be asked to appear in Paper-II subsequently and Paper-II of the short listed candidates, who qualify in PET/Medical examination, will only be evaluated, and candidates will be called for personality test/interview on their combined performance in Paper-I and Paper-II. It was also specifically mentioned that only those candidates who secure qualifying marks in Paper-I of the written examination as fixed by the Commission, at its discretion, will be short listed for PET/Medical Examination. This was reiterated, in Note I to III of Instruction No.9 also. Therefore, it is clear that 2nd Respondent (SSC) provided for fixing of qualifying marks in respect of Paper-I of Written Examination only.
7. The respondents have not denied the aforesaid factual matrix, however, would submit that the Commission unanimously decided to prescribe the cut off marks of 25% for Unreserved candidates and 20% for reserved categories in the Interview. It is further submitted that the Commission has discretion to fix minimum cut off marks in any paper or part thereof of the written examinations and interview keeping in view the requirements of the job and the importance of personality for efficient discharge of duties in the said job. It is further submitted that since aberrations are noticed in the written examinations vis-a-vis interview marks in respect of some of the candidates, to eliminate the cases where the co-relation between performance in written examinations and interview is extremely poor, after due deliberations and analysis, it was decided to fix the minimum cut off marks for interview also. The purpose of fixing the cut off marks was to select best quality candidates, who will be performing the most difficult task of maintaining law and order with right degree of sensitivity towards the general public with special focus on the weaker sections of the Society and hence, there is no illegality or irregularity in fixing the cut off marks for interview.
8. This Tribunal while issuing notices to the respondents, in all these OAs, directed the SSC not to take any steps for making appointments with regard to the impugned merit list, as an interim measure. Certain candidates, whose names were included, in the impugned final select list, and whose appointments were stalled, due to the interim orders, impleaded as party respondents, in these OAs.
9. Heard both the parties and have been gone through the pleadings on record.
10. In view of the aforesaid conspectus of the facts and pleadings, the question falls for our consideration is as follows:
Whether the fixing of cut off marks for Interview after the selection process has commenced was legal and valid?
11. The applicants in support of their contentions placed reliance on the following:
K. Manjusree v. State of A.P. and Another, JT 2008 (2) SC 437.
Hemani Malhotra v. High Court of Delhi, JT 2008 (5) SC 640.
c) Shikha Arora v. DSSSB and Another, 179 (2011) DLT 568.
Per contra, the respondents placed reliance on the following:
K.H.Siraj v. High Court of Kerala and Others, (2006) 6 SCC 395.
Barot Vijaykumar Balakrishna & Others Vs. Modh Vinaykumar Dasrathlal & Ors., (2011) 7 SCC 308.
12. In K. Manjusree (supra), when the respondents prescribed the cut off marks for interview after the selection process is completed, in making recruitment for posts of District & Session Judges (Grade-II) which were governed by the Andhra Pradesh State Higher Judicial Service Rules, 1958, which did not prescribe any criterion for selection, the Honble Apex Court observed/held as under:
29. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.
13. In Hemani Malhotra (supra), the Honble Apex Court in the matter of appointments in Delhi Higher Judicial Service, by following the decision in K. Manjusree and by distinguishing the decision in K.H.Siraj, held that prescribing minimum marks for viva voce after the written test was over is illegal. The relevant paras of the Judgement are reproduced below:
9. From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal.
10. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or not, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree (Supra) the Court noticed the decisions in (1) P.K.Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision.
(Emphasis added)
14. In Shikha Aroras case (supra), the respondent DSSSB issued advertisement for recruitment to the post of Assistant Teacher (Primary) on 27.07.2006, and after the Part-I Written Examination was conducted on 25.03.2007, fixed different cut off marks for the Part-I and Part-II of the Written Examination on 31.03.2007, i.e., minimum marks are fixed, after the recruitment process has started. The Honble High Court of Delhi following the Judgements of the Honble Apex Court in Manjushris case (supra) and Hemani Malhotras case (supra) allowed the Writ Petition.
15. In K.H.Sirajs case (supra), when cut off marks for interview were fixed for appointment to the post of Munshi Magistrate in Kerala Judicial Services, the said decision was questioned on the ground that such a power was not provided under the statutory rules. The Honble Apex Court held that there was nothing in the relevant rules barring such a procedure from being adopted and that the concept of examination envisaged by the said rule justified prescription of minimum pass marks for interview.
16. In Barot Vijay Kumar Balakrishnas case (supra), the rules framed under Article 309 of the Constitution, governing the selection process, for the posts of Assistant Public Prosecutor in the State of Gujrat mandated that there would be minimum qualifying marks each for the written test and the oral interview. In this case, cut off marks for viva voce were not specified in the advertisement. As observed by the Honble Apex Court, in view of that omission, there were only two courses open. One, to carry on with the selection process, and to complete it without fixing any cut off marks for the viva voce, and to prepare the select list on the basis of the aggregate of marks obtained by the candidates in the written test and the viva voce. That would have been clearly wrong, and in violation of the statutory rules governing the selection. The other course was to fix the cut off marks for the viva voce, and to notify the candidates called for interview. This course was adopted by the Commission just two or three days before the interview/viva voce. Having observed that it did not cause any prejudice to the candidates, the Court did not interfere in the selection process.
17. In addition to the aforesaid judgements cited by both sides, it is necessary to examine some other recent judgements of the Honble Apex Court, which are also having a bearing on the issue involved in this OA.
18. In State of Haryana v. Subash Chander Marwaha and Others [(1974) 3 SCC 220, decided on 02.05.1973] while dealing with the recruitment of subordinate judges of the Punjab Civil Services (Judicial Branch), the Honble Apex Court dealt with the situation where the relevant Rule prescribed a minimum qualifying marks. The recruitment was for filling up of 15 vacancies. 40 candidates secured the minimum qualifying marks (45%). Only 7 candidates who secured 55% and above marks were appointed and the remaining vacancies were kept unfilled. The decision of the State Government not to fill up the remaining vacancies in spite of the availability of candidates who secured the minimum qualifying marks was challenged. The State Government defended its decision not to fill up the posts on the ground that the decision was taken to maintain the high standards of competence in judicial service. The High Court upheld the challenge and issued a mandamus. In appeal, the Honble Apex Court reversed and opined that the candidates securing minimum qualifying marks at an examination held for the purpose of recruitment into the service of the State have no legal right to be appointed. Para 8 of the Judgement reads as under:
8. It is rather difficult to follow the reasoning of the High Court in this case, It agrees that the advertisement mentioning 15 vacancies did not give a right to any candidate to be appointed to the post of a Subordinate Judge. Even so it somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies. At one place it was stated "so long as there are the number of vacancies to be filled in and there are qualified candidates in the list forwarded by the Public Service Commission along with their Rolls, they have got a legal right to be selected under Rule 10 (ii) in Part 'C'." One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence. Further, in Para 10 it was observed as under:
10. It was, however, contended by Dr. Singhvi on behalf of the respondents that since rule 8 of Part C makes candidates who obtained 45 per cent or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10 (ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In the above context, it was held:-
In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for more (sic mere) eligibility.
19. In Rajya Sabha Secretariat and Others v. Subhash Baloda and Others, (2013) 5 SCC 169 [decided on 11.02.2013], the question arose is whether the interview Board can be faulted for making the certificate marks, a component of the 25 interview marks, and whether thereby the candidates were in any way taken by surprise, the Honble Apex Court held as follows:
28. Having noted this factual and legal scenario, in our view there was nothing wrong in the method applied by the appellants in the Selection of the Security Assistants Grade-II. There was no discrimination whatsoever among the candidates called for the interview, nor any departure from the advertised requirements. One can always say that some other method would have been a better method, but it is not the job of the Court to substitute what it thinks to be appropriate for that which the selecting authority has decided as desirable. While taking care of the rights of the candidates, the Court cannot lose sight of the requirements specified by the selecting authority. What the High Court has proposed in the impugned orders amounts to re-writing the rules for selection, which was clearly impermissible while exercising the power of judicial review.
20. In Tej Prakash Pathak & Others v. Rajasthan High Court & Others, (2013) 4 SCC 540 [decided on 20.03.2013], the Rajasthan High Court undertook the recruitment process for filling up of 13 posts of Translators by issuing a notification dated 17.09.2009 under the Rajasthan High Court Staff Service Rules, 2002. Eligible candidates are required to appear for written examination consisting of two papers of Translation from English to Hindi and vice versa, carrying 100 marks each followed by a personal interview for 50 marks. 21 candidates appeared for the examination of whom, only 3 candidates were declared successful. When the said decision was challenged, the High Court (one of the party in the proceedings) replied that the Chief Justice ordered that the examination be treated as a competitive examination and only those candidates who secured a minimum of 75% marks be selected to fill up the posts in question and in view of the said decision, only three candidates were found suitable for appointment. While examining the question whether the 'rules of the game' could be changed was considered by this Court on a number of occasions in different circumstances and such question arose in the context of employment under State which under the scheme of our Constitution is required to be regulated by law made under Article 309 or employment under the instrumentalities of the State which could be regulated either by statute or subordinate legislation and in either case the 'law' dealing with the recruitment is subject to the discipline of Article 14, a three Judge Bench of the Honble Apex Court, while referring the matter to a larger bench, for an authoritative pronouncement, observed as follows:
10. Legal relationship between employer and employee is essentially contractual. Though in the context of employment under State the contract of employment is generally regulated by statutory provisions or subordinate legislation which restricts the freedom of the employer i.e. the 'State' in certain respects.
11. In the context of the employment covered by the regime of Article 309, the 'law' - the recruitment rules in theory could be either prospective or retrospective subject of course to the rule of non- arbitrariness. However, in the context of employment under the instrumentalities of the State which is normally regulated by subordinate legislation, such rules cannot be made retrospectively unless specifically authorised by some constitutionally valid statute.
12. Under the Scheme of our Constitution an absolute and non-negotiable prohibition against retrospective law making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law making bodies. However such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16 etc. Changing the 'rules of game' either midstream or after the game is played is an aspect of retrospective law making power.
13. Those various cases [(a). C. Channabasavaih v. State of Mysore [AIR 1965 SC 1293], State of Haryana v. Subash Chander Marwaha and Others [(1974) 3 SCC 220], P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141] and Umesh Chandra Shukla v. Union of India [(1985) 3 SCC 721], Durgacharan Misra v. State of Orissa [(1987) 4 SCC 646], State of U.P. v. Rafiquddin and Ors. [1987 Supp. SCC 401], Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve [(2001) 10 SCC 51], Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and Others [(2006) 10 SCC 261], K. Manjushree v. State of Andhra Pradesh [(2008) 3 SCC 512], Hemani Malhotra v. High Court of Delhi [(2008) 7 SCC 11], K.H. Siraj v. High Court of Kerala [(2006) 6 SCC 395], Ramesh Kumar v. High Court of Delhi [(2010) 3 SCC 104], Rakhi Ray v. High Court of Delhi [(2010) 2 SCC 637], Hardev Singh v. Union of India [2011) 10 SCC 121] - Where procedural rules were altered. (b) P. Mahendran and Others v. State of Karnataka and Others [(1990) 1 SCC 411], Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar [(1994) 6 SCC 293], Gopal Krishna Rath v. M.A. A. Baig (Dead) By LRs [(1999) 1 SCC 544], Umrao Singh v. Punjabi University, Patiala and Others [(2005) 13 SCC 365], Mohd. Sohrab Khan v. Aligarh Muslim University and Others [(2009) 4 SCC 555] - Where the eligibility criteria altered.] deal with situations where the State sought to alter 1) the eligibility criteria of the candidates seeking employment or 2) the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selection, such as, prescribing minimum cut off marks to be secured by the candidates either in the written examination or viva-voce as was done in the case of Manjusree (supra) or the present case or calling upon the candidates to undergo some test relevant to the nature of the employment [such as driving test as was the case in Maharashtra State Road Transport Corporation (supra)].
14. If the principle of Manjusree's case (supra) is applied strictly to the present case, the respondent High Court is bound to recruit 13 of the best candidates out of the 21 who applied irrespective of their performance in the examination held.
15. In such cases, theoretically it is possible that candidates securing very low marks but higher than some other competing candidates may have to be appointed. In our opinion, application of the principle as laid down in Manjusree case (supra) without any further scrutiny would not be in the larger public interest or the goal of establishing an efficient administrative machinery.
16. This Court in the case of the State of Haryana v. Subash Chander Marwaha and Others [(1974) 3 SCC 220] while dealing with the recruitment of subordinate judges of the Punjab Civil Services (Judicial Branch) had to deal with the situation where the relevant Rule prescribed a minimum qualifying marks. The recruitment was for filling up of 15 vacancies. 40 candidates secured the minimum qualifying marks (45%). Only 7 candidates who secured 55% and above marks were appointed and the remaining vacancies were kept unfilled. The decision of the State Government not to fill up the remaining vacancies in spite of the availability of candidates who secured the minimum qualifying marks was challenged. The State Government defended its decision not to fill up posts on the ground that the decision was taken to maintain the high standards of competence in judicial service. The High Court upheld the challenge and issued a mandamus. In appeal, this Court reversed and opined that the candidates securing minimum qualifying marks at an examination held for the purpose of recruitment into the service of the State have no legal right to be appointed. In the context, it was held:-
12. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for more (sic mere) eligibility.
17. Unfortunately, the decision in Subash Chander Marwaha (supra) does not appear to have been brought to the notice of their Lordships in the case of Manjusree (supra).
18. This Court in the case of Manjusree (supra) relied upon P.K. Ramachandra Iyer and Others v. Union of India and Others [(1984) 2 SCC 141], Umesh Chandra Shukla v. Union of India and Others [(1985) 3 SCC 721] and Durgacharan Misra v. State of Orissa and Others [(1987) 4 SCC 646]. In none of the cases, the decision in Subash Chander Marwaha (supra) was considered.
21. In Arunachal Pradesh Public Service Commission and Another v. Tage Habung and others, AIR 2013 SC 1601 [decided on 01.05.2013], the APPSC issued an advertisement dated 25.07.2006 inviting applications for admission to the Arunachal Pradesh Public Service Combined Competitive Examination (Preliminary) 2006-07 for recruitment to Group `A and Group `B posts under the Government of Arunachal Pradesh. A decision was taken by the Commission on 13.06.2007 fixing a minimum cut off marks at 40% in English as qualifying marks or as would be decided by the Commission in every written examination for recruitment to the posts and a Notification to that effect was issued on 02.07.2007. The main examination commenced on 26.12.2007 and the Commission vide its Notification dated 11.07.2008 published a list of candidates who had qualified in general English by securing 40% marks. However, prior to the completion of the main examination, an Office Memorandum dated 07.01.2008 had been issued by the State Government declaring the cut off marks as 33% or more for all subjects in each written examination. The Honble Apex Court while answering the question whether prescribing the cut off marks of 33% or more to be secured in each written examination paper, is permissible after the commencement of the recruitment process and applicable to the candidates who already took the Main examination initiated in pursuance of the advertisement dated 25.07.2006, after considering K.H.Sirajs case (supra) and Hemani Malhotras case (supra), held as follows:
28. There cannot be any dispute that the merit of a candidate and his suitability is always assessed with reference to his performance at the examination. For the purpose of adjudging the merit and suitability of a candidate, the Commission has to fix minimum qualifying marks in the written examination in order to qualify in the viva voce test. It is now well settled that fixing the qualifying marks in the viva voce test after the commencement of the process of selection is not justified but fixing some criteria for qualifying a candidate in the written examination is necessary in order to shortlist the candidates for participating in the interview.
29. As noticed above, cut-off marks of 33% fixed as qualifying marks in all subjects for the purpose of interview cannot by any stretch of imagination be held illegal or unjustified merely because such criteria for securing minimum 33% marks was notified for the Preliminary Examination and Main Examination. Rule 11 of Arunachal Pradesh Public Service Combined Civil Service Examination Rules, 2001 empowers the Commission to fix minimum qualifying marks for the purpose of shortlisting the candidates for interview. In our considered opinion, the power exercised by the Commission under Rule 11 of 2001 Rules fixing the qualifying marks in the written examination in the process of conducting the recruitment test cannot be interfered with by this Court. We reiterate that there must be some yardstick to be followed by the Commission for the purpose of shortlisting the candidates after the written examination. The fixation of qualifying marks as 33% in the written examination cannot be held to be illegal or arbitrary action of the Commission merely because it was notified in the process of conducting recruitment tests. It was argued from the side of the Appellant-Commission that the Commission has in the past conducted written examination fixing the cut-off marks in exercise of power under Rule 11 of 2001 Rules. The High Court has lost sight of the fact that pursuant to the directions of the learned Single Judge in his order dated 30th September, 2008, the result was declared applying the qualifying marks as notified in O.M. dated 7th January, 2008 and the same was adopted by the Commission.
30. Although it is desirable that the Commission should fix the minimum qualifying marks in each written examination, but in the instant case the power exercised by the Commission in recruiting the candidates to secure qualifying marks cannot be interfered with.
22. In Mahinder Kumar & Others v. High Court of Madhya Pradesh through Registrar General & Others, 2013 (9) SCALE 163 [decided on 12.07.2013] (a three judge bench), an advertisement inviting applications for filling up the 20 posts in the Madhya Pradesh Higher Judicial Service by direct recruitment from the Bar, without indicating what would be the minimum percentage of marks, which would be required for final selection was issued. The only place where reference has been to the said figure, is in the resolution of the selection committee adopted on 23.03.2007, wherein, in paragraph 1 it has been indicated that on the basis of the evaluation made by district Judges, SC and ST candidates would have to secure 35% marks and other candidates would have to secure 40% marks in the 1st Paper and in the 2nd Paper in order to qualify for the viva voce. Apart from the above, there is no mention anywhere in the materials that 40% marks was the benchmark for the purpose of appointment in any of the vacant posts. All the candidates who had obtained more than 40% marks in either of the two papers were called for the interview and were allotted separate marks in the interview. Thereafter, on the aggregate of the marks obtained by the candidates, only one person placed at Sl. No.1 of the merit list, was found suitable to be recommended for appointment as District Judge on probation. The problem was caused by the note written by the Registrar General of the High Court indicated, at the bottom of the final list, that the said person, who was selected, had obtained more than 50% marks and accordingly found suitable to be recommended for appointment. The advertisement contains, interalia, the following clauses under para 9:
The candidates may be short listed at the preliminary stage, i.e., before written examination, by the High Court.
xxxxxx xxxxxxx Only such candidates will be called for interview as the High Court may decide, on the basis of evaluation of their performance in the written examination.
The interview shall carry 25 marks.
Candidates shall be selected on the basis of aggregate marks obtained by them in both the written examination and interview.
xxxxxxx After examining the aforesaid clauses, the Honble Apex Court held that the High Court was empowered to formulate its own procedure in the matter of selection and to decide as to such of those candidates who can be called for interview based on the evaluation of their performance and to how the ultimate selection of the candidates on the basis of aggregate marks obtained by them both in the written examination and interview are to be made. Having held as above, the Apex Court answered the contention that the methodology adopted by the selection committee in resorting to the normalization process was a departure in the midway of the selection process and, therefore, on that score the ultimate selection cannot be approved, after distinguishing the facts in K. Manjushrees case (supra) and by following the case in K.H.Siraj (supra), by observing that no cut off mark was fixed for interview and what was prescribed in this case is a pattern of selection in which 25 marks allotted for interview was simply applied, and no minimum marks to be secured in the interview, was prescribed afresh after the selection process commenced, and thereby, for anyone to state that there was any change in the rule of the game, in order to interfere with the selection.
23. In Yogesh Yadav v. Union of India (Civil Appeal No.6799/2013 and batch) [decided on 16.08.2013], matter pertains to appointment to the post of Deputy Director (Law), under the OBC category, in the Office of Competition Commission of India. The appellants therein applied in pursuance of the Notification and Clause-7 of the said Notification reads as follows:
7. Mode of Selection All the applications received by the due date will be screened with reference to the minimum qualification criteria. From amongst the eligible candidates, suitable candidates will be short listed through a transparent mechanism and the short listed candidates will be called for interview before final selection. Mere fulfilling of minimum qualifications by itself would not entitle any applicant for being called for interview. Thereafter along with the admit cards issued to the appellants for appearing in the written test, detailed instructions, including the scheme of the examination, were enclosed and the relevant instructions read as follows:
4. The selection to all the positions advertised will be based on a written test followed by an interview. The written test will carry 80% of the marks and interview will have 20% of the marks. The written test will be in two parts. The first part will be based on multiple choice questions for 50 marks. There is no negative marking in this multiple choice questions. The second part carrying 30 marks will be distributed to the descriptive questions on the subject of your specialization within the broad outline of the subject of specialization as indicated in the advertisement.
xxxxxxxx
9. Candidates who do not secure 50% of the marks in the test will not be called for the interview. However, for candidates belonging to the reserved categories, the cut off marks will be 40% of the total marks. The appellants, after qualifying the Written Test, faced the Interview but their names did not appear in the list of candidates finally selected. The appellants challenged the said action by stating that their non-selection was the result of altering the prescribed mode of selection mid-way, i.e., after the initiation of the recruitment process, which was impermissible. The precise contention was that the benchmark which was fixed by way of issuing instructions was not mentioned earlier, i.e., before the start of selection process, either in the advertisement or otherwise. The Honble Apex Court, after considering the Judgements in Hemani Malhotra and Manjushree cases (supra) while upholding the view of the High Court that the aforesaid judgements were not applicable in the said case as the fact scenario was altogether different, by following the judgements in State of Haryana v. Subhash Chander Marwaha and Others (supra) and M.P.Public Service Commission v. Navneet Kumar Potdar & Another, (1994) 6 SCC 293, held that short listing which is done by fixing the `benchmark, to recruit best candidates on rational and reasonal basis, is legal and valid.
24. On the conspectus of the above case law (stood as on today, since certain issues referred to a larger bench), the following Principles emerged:
The authority making the rules for regulating the selection, can prescribe by rules, the minimum marks both for written examination and interview, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview.
Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above.
Once, rules provides for a certain procedure, the Selection Committee, cannot supplant, i.e., by prescribing or following any different procedure, but can supplement to the said prescribed procedure.
Fixing the qualifying/minimum/cut off or some criteria for written examination, even after the commencement of the process of selection, to short list the candidates for participating the interview, is permissible, but fixing the qualifying/minimum/cut off marks for interview, after commencement of the selection process, is not permissible.
Fixing of Benchmark percentage for final selection higher than the minimum marks required for mere eligibility, is different from simply fixing the qualifying/minimum/cut off marks, for short listing.
Fixing of Bench Mark percentage for final selection, at any stage of the selection, i.e., even after commencement of the selection process, is permissible.
25. In the present case, admittedly, the Recruitment Rules, i.e., Delhi Police (Appointment & Recruitment) Rules, 1980 does not prescribe any minimum marks either for the written examination or for the interview for regulating the selection to the posts of Sub-Inspectors (Executives) in Delhi Police. However, the recruiting agency, i.e., respondent-SSC while calling for the applications vide their Advertisement notice dated 19.08.2012 (Annexure A3) prescribed the Scheme of examination, wherein it was mentioned that the examination will consists of a written examination (400) marks, PET/ME which will be of qualifying nature and Interview-cum-Personality Test (100 marks). The written examination was divided into Paper-I (200 marks) and Paper-II (200 marks), and further provided that only those candidates who secured qualifying marks in Paper-I of the Written Examination as fixed by the Commission, at its discretion, will be short-listed for PET/Medical Examination. PaperII of short-listed candidates, who qualify in PET/ME will only be evaluated. The Commission while reserving right of discretion to fix different minimum qualifying standards in each part of Paper-I taking into consideration among others, category wise vacancies and category wise number of candidates, provided that only those candidates, who have scored above the `cut off marks fixed by the Commission in Paper-I would be required to appear in the Physical Endurance Test/Medical Examination. It was further provided under Note-II to para 9 (Syllabus) that Marks received in Paper-I will be used to screen the candidates for appearing for PET/Medical Examination and marks of such screened candidates in Paper-I if they are successful in PET/ME, will be taken into account along with marks in Paper-II for selecting them for the Interview and also for final selection.
26. More importantly, under the heading Mode of Selection, the Commission, provided that The Commission will recommend the candidates in the merit list on the basis of the aggregate marks obtained by the candidates in the written examination and interview/personality test.
27. The respondent-Commission vide its Annexure A1, i.e., declaration of final results, for the first time, informed to the candidates that `cut off marks for the Interview at 25% for UR category and 20% for other categories has been fixed, and those candidates who secured the said cut off marks in the Interview are only finally declared selected.
28. The applicants in these OAs, relying on the statement of the Commission, under the heading Syllabus, Marks of such screened candidates in Paper-I, if they are successful in PET/ME, will be taken into account along with marks in Paper-II for selecting them for the Interview and also for final selection and under the heading Mode of Selection that the merit list would be prepared on the basis of the aggregate marks obtained in the written examination and interview, submit that fixing of cut off marks for the interview, that too, after the selection process has been commenced is impermissible.
29. Firstly, a perusal of the impugned Para No.3 of the Annexure A1 final result, i.e., fixation of cut off marks for the interview, clearly indicates that the same does not fall under the aforesaid principles No.5 and 6, i.e., fixation of Bench Mark and that the same falls under principle No.4, i.e., fixing the cut off marks for the interview, after commencement of the selection process. The power of the respondent-Commission to fix the minimum `cut off marks for the written examination as well as for the interview is not disputed but fixing the `cut off marks for the interview after the selection process has been commenced, is only disputed by the applicants.
30. It is the admitted case that the respondent-Commission for the reasons best known to it but not explained in their pleadings, has not fixed the `cut of marks for the interview before the commencement of the selection process, though it can do so, as per the settled principles of law. Further, contrary to the settled law, the Commission chosen to fix the minimum cut off marks for the interview after the commencement of the selection process. The contention of the respondent-SSC, that they are empowered to fix the cut off marks, even for interview, for selecting the best quality candidates, keeping in view the requirements of job, and the importance of personality for efficient discharge of duties of the said job, Sub-Inspector in the present case, is not negatived by Courts. But, the SSC being the prime recruiting agency, was in full knowledge of the requirements of the job even before commencement of the selection process, while issuing the advertisement, has consciously chosen not to provide such a procedure which will enable it to prescribe any cut off marks for the interview. It is brought to our notice, the respondent-SSC, now for the recruitment of Sub-Inspector in Delhi Police, etc. for the year 2013, vide their Corrigendum to the Notification for Recruitment of Sub-Inspector in Delhi Police, CAPFs and Asst. SI in CISF and IO in NCB Examination, 2013, reserved its right to prescribe, at its option, separate cut off marks in interview for general and reserved category candidates.
31. In view of the aforesaid dicta laid down by the Honble Apex Court, the impugned action in fixing the cut off marks for interview after the selection process is commenced, is impermissible, and hence, the impugned final result, drawn on the basis of the said impermissible action, is liable to be set aside.
32. In the circumstances, and for the aforesaid reasons, the impugned Annexure A1, declaration of final results for the post of Sub Inspector (Executive) in Delhi Police, 2012 is set aside and the respondents are directed to redraw the final results, strictly on the basis of the aggregate marks obtained in the written examination and interview/personality test, i.e., without application of any cut off marks for the interview, and to consider the candidates for appointment accordingly. All the OAs are accordingly allowed, and the interim orders passed in the respective OAs are vacated. No order as to costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/