Gujarat High Court
Jayeshkumar Mansukhlal Khokhani & 4 vs Gujarat Subordinate Services ... on 8 September, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12551/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12551 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of
the judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
==========================================================
JAYESHKUMAR MANSUKHLAL KHOKHANI & 4....Petitioner(s)
Versus
GUJARAT SUBORDINATE SERVICES SELECTION BOARD....Respondent(s)
==========================================================
Appearance:
MR DHAVAL M BAROT, ADVOCATE for the Petitioner(s) No. 1 - 5
MR ROHAN YAGNIK AGP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08 /09/2015
CAV JUDGMENT
Page 1 of 25
HC-NIC Page 1 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT 1 By this writ petition under Article 226 of the Constitution of India, the petitioners desirous of seeking appointments as 'Head Clerks' have prayed for the following reliefs:
"27(A) The Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction for cancelling and/or modifying the selection list and failed list published by the respondent in connection with Public Advertisement No.19/2010 dated 12.7.2010 for posts of Head Clerk or its equivalent with the Directorate of Developing Caste Welfare, Gandhinagar or the Commissionerate of Tribunal Development, Gandhinagar.
(B) The Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent to prepare a waiting in connection with Public Advertisement No.19/2010 dated 12.7.2010 for posts of Head Clerk or its equivalent with the Directorate of Developing Caste Welfare, Gandhinagar or the Commissionerate of Tribal Development, Gandhinagar.
(C) The Hon'ble Court be pleased to issue a writ of mandamus or a writ in nature thereof or any other appropriate writ, order or direction directing the respondent to include the petitioners in selection list or in waiting as per their merits in connection with Public Advertisement No.19/2010 dated 12.7.2010 for post of Head Clerk or its equivalent with the Directorate of Developing Caste Welfare, Gandhinagar or the Commissionerate of Tribunal Development, Gandhinagar.
(D) Pending the hearing and final disposal of the petition the Hon'ble Court be pleased to stay the implementation, operation and execution of the impugned selection list and restrain the respondent from making appointments on the basis of the said selection list;
(E) Award cost of this petition;
(F) Grant any other and further relief necessary and expedient in the interest of justice."
2 The case of the petitioners may be summarized as under:
2.1 The respondent - Board published an advertisement Nos.18 of Page 2 of 25 HC-NIC Page 2 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT 2010, 19 of 2010 and 20 of 2010 respectively dated 12th July, 2010 for the appointments with the Directorate, Developing Caste Welfare, Gandhinagar, Commissionerate of Tribal Development, Gandhinagar and Directorate of Scheduled Castes Welfare, Gandhinagar respectively for the posts of 'Head Clerks' or its equivalent.
2.2 With respect to the advertisement No.18 of 2010, total eight posts were to be filled up, with respect to the advertisement No.19 of 2010, total one hundred posts were to be filled up and with respect to the advertisement No.20 of 2010, total seventy one posts were to be filled up.
2.3 The respondent - Board published one another advertisement dated 18th June, 2014 in respect of the advertisement No.19 of 2010.
3 It is the case of the petitioners that in connection with the advertisement No.19 of 2010, approximately 50,000 candidates had appeared in the written test, out of which, 314 candidates were shortlisted and they were called for the oral interview conducted between 16th July 2014 and 30th July 2014. Out of the said total number of 314 candidates, 119 candidates appeared for the oral interview before the respondent - Board.
4 After the interview, the respondent - Board published a selection Page 3 of 25 HC-NIC Page 3 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT list according to the merit dated 14th August, 2014. According to the said selection list, only 74 candidates were selected.
5 It is the case of the petitioners that no waiting list was prepared.
6 Mr. Barot, the learned advocate appearing for the petitioners submitted that the selection process undertaken by the Board was not transparent. He submitted that his clients are still not aware as to what exactly was the selection / rejection criteria. He submitted that no reason has been assigned by the Board for not preparing a waiting list.
He submitted that the respondent - Board acted arbitrarily by not including the candidates in the selection list upto 100 although the candidates having equal marks and/or higher marks than 35 were available and the advertisement was made for selection on 100 posts. 7 In such circumstances, referred to above, Mr. Barot prays that the selection list deserves to be cancelled and/or modified. 8 On the other hand, this application has been vehemently opposed by Mr. Rohan Yagnik, the learned Assistant Government Pleader appearing for the respondent Board. He submitted that no error not to speak of any error of law could be said to have been committed by the Board in conducting the written as well as oral examinations. The allegations of the petitioners as regards transparency in the recruitment Page 4 of 25 HC-NIC Page 4 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT process are baseless. He submitted that the petitioners herein were not selected as none was able to obtain the minimum qualifying marks. 9 He has placed reliance on the following averments made in the affidavitinreply filed on behalf of the respondent - Board:
"6. It is respectfully submitted that the Gujarat Subordinate Services Selection Board (here in after referred to as the Board) has mentioned in the advertisement No.19/10), dated 12072010, in para 9 that the recruitment process would be in two parts (1) Preliminary Written Test, and (2) Oral Test. If with compared to the number of vacancies of post, large number of applications would be received, and Board considers it fit, then, the Preliminary Written Test would be conducted by the Board. Preliminary Written test was only a qualifying test. Therefore marks obtained in Preliminary Written Test would not be counted for final selection and the final selection is purely based only on the marks of the Oral Test obtained by the candidate. It is further submitted that the aforesaid post is competitive in nature in which the candidates were supposed to appear in the written test (screening test). Candidates qualified in the said written test were called for the oral test. Final selection of the candidates was based on the marks obtained in the oral test. The standard of the category wise cut off marks was decided by the Board. The minutes of the Board Meeting dated 14.08.2014 is annexed herewith and marked as "AnnexureR 1". The petitioners did not obtain minimum qualifying marks and therefore their names are not included in the select list.
7. It is respectfully submitted that the respondent had published total 100 vacancies in number whereby 74 candidates have been selected as per their meritorious performance. It is further submitted that against 100 vacancies for the aforesaid post 74 candidates were found eligible as per category wise criteria (cut off marks) decided by the Board. Standard of Category wise cut off marks is as under:
Sr. No. Category Cut off marks 1 General (unreserved), 45 Male 2 General (unreserved) 40 Female 3 S.E.B.C., Male 40 4 S.E.B.C., Female 35 5 S.C., Male 40 Page 5 of 25 HC-NIC Page 5 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT 6 S..C., Female 35 7 S.T., Male 40 8 S.T., Female 35 9 Ex Serviceman 30 10 Physically Handicapped 30
It is further submitted that none of the petitioner has obtained minimum qualifying marks and hence their names are not included in the select list. Name of petitioners, their category, standard cut off marks of respective category and marks obtained by the petitioners are as under:
Sr. Petitioner's Category Prescribe Obtaine
No. name d cut off d marks
marks
1 Jayeshkumar General 45 39
Manshukh (unreserved)
Khokhani , Male
2 Prakash S.E.B.C., 40 36
Shamjibhai Male
Metaliya
3 Sanjaykumar S.E.B.C., 40 37
Udesinh Palaniya Male
4 Alpeshkumar S.E.B.C., 40 25
Prahladbhai Male
Prajapati
5 Ajaykumar S.E.B.C., 40 25
Naginbhai Male
Lakhtariya
As per the prescribed criteria only 74 candidates were found eligible therefore a select list of only 74 candidates were prepared by the Board. Since no eligible candidates in sufficient numbers were found even for the select list, no incident of preparing the wait list has occurred.
8. It is respectfully submitted that the grievance of the present petitioners' is that the respondent had not issued a waiting list and instead of that issued a failed candidate list. The respondent respectfully submits that the present petitioners have not obtained minimum qualifying marks in oral test as stated in para7 above; therefore, their names are not included in the select list. It is further submitted that the petitioners have also stated in their petition that the petitioners and other persons are not Page 6 of 25 HC-NIC Page 6 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT aware as to what exactly is the selection/rejection criteria. It is respectfully submitted that the Board had clearly mentioned the recruitment process in the Para 9 of the said advertisement."
"10. It is respectfully submitted that the grievance of the present petitioners' is that though some persons have equal or higher marks than the last 3 selected candidates at Sr. Nos.72, 73 and 74 in the select list such persons have been declared as failed candidates without assigning any reason. It is further submitted that as per the prescribed category wise cut off marks the said 3 candidates are included in the select list while the candidates in the 'Not Selected List' do not possess prescribed category wise cut off marks so they are not included in the select list." 10 Having heard the leaned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration whether the petitioners are entitled to any of the reliefs prayed for in this petition.
11 It appears that the recruitment process was undertaken in two parts; (1) primary written test and (2) oral test. It appears that the primary written test was only a qualifying test. The marks obtained in the primary written tests were not to be counted for the final selection and the final selection was purely based on the marks obtained in the oral test. It also appears that since the petitioners were unable to secure the minimum cutoff marks prescribed in the oral test, the names were not included in the select list.
12 The learned Assistant Government Pleader appearing for the Board placed reliance on the decision of the Supreme Court in the case of State of Uttar Pradesh v/s. Rafiquiddin [1987 (0) GLHELSC30292]. Page 7 of 25 HC-NIC Page 7 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT 13 He has relied on the observations made by the Supreme Court in para 12 of the aforesaid decision as under:
"The Division Bench of the High Court observed that the Commission had no authority to fix any minimum marks for the viva voce test and even if it had such a power it could not prescribe the minimum marks without giving notice to the candidates. The Bench further observed that if the Commission had given notice to the candidates before the steps for holding the competitive examination were taken the candidates may or may not have appeared at the examination. In our opinion the High Court committed a serious error in applying the principles of nature justice to a competitive examination. There is a basic difference between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination it is not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural justice does not apply to competitive examination."
14 On the other hand, the learned counsel appearing for the petitioners has relied on the decision of the Supreme Court in the case of Hemani Malhotra v. High Court of Delhi reported in AIR 2008 SC 2103. This decision of the Supreme Court has been relied upon on behalf of the petitioners to contend that when no cutoff / minimum marks for interview are prescribed before the commencement of the Page 8 of 25 HC-NIC Page 8 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT selection process, it cannot be prescribed after the completion of the written examination and during the process of interview. In this case, the Supreme Court was concerned with an advertisement issued by the High Court of Delhi through the Registrar General inviting applications from the eligible candidates for 16 vacant posts to be filled upto by direct recruitment to the Delhi Higher Judicial Service. The stance of the High Court of Delhi before the Supreme Court was that a candidate was required to secure the minimum qualifying marks in the written examination in order to qualify for the next stage i.e. viva voce test, and therefore, the High Court was justified in prescribing the cutoff marks at the viva voce test. In such circumstances, referred to above, the Supreme Court observed in paras 8, 9, 10 and 11 as under:
"8. From the record of the case it is evidence that the public advertisement was issued by the respondent for direct recruitment to Delhi Higher Services. As per the said advertisement written examination was to be held on March 12, 2006. the selection process was of two stages: stage one was written examination comprising one paper only of 250 marks, whereas stage two included interview/vivavoce. As per the advertisement minimum qualifying marks in the written examination were specified to be 55% for General candidates and 50% for Scheduled Castes and Scheduled Tribes candidates but no cut off marks were prescribed for vivevoce test at all. The averments made in the petitions which are not effectively controverted by the respondent would indicate that oral interview was postponed by the respondent on six occasions and was finally conducted by the Selection Committee only on February 27, 2007. However, before that date criteria of cut off marks for vivevoce test was introduced by the respondent. It is an admitted position that at the beginning of the selection process, no minimum cut off marks for vivevoce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in Civil Appeal No.1313 of 2008 filed by K. Manjusree against the State of A.P. and Anr.Page 9 of 25
HC-NIC Page 9 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT decided on February 15, 2008, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms:
The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. 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...
9. From the proposition of law laid down by this Court in the above mentioned it is evident that previous procedure was not have any minimum marks for vivevoce. Therefore, prescribing minimum marks for vivevoce 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 vivevoce, but if minimum marks are not prescribed for vivevoce 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 vivevoce, 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 MANU/SC/0026/1985 : AIR 1987 SC as well as K.H. Siraj v. High Court Page 10 of 25 HC-NIC Page 10 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT of Kerala and Ors. MANU/SC/8184/2006 : AIR 2006 SC 2339 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 nor, 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 MANU/SC/0395/1983 : (1984)ILLJ314SC : (2) Umesh Chandra Shukal v. Union of India MANU/SC/00501985 : AIR 1985 SC 1351 ; and (3) Durgacharan Misra v. State of Orissa which is quoted above. On the facts and circumstances of the case this Court is the opinion that the decision rendered by this Court in K. Manjsree (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.
11. At this stage this court notices that as per the information supplied by the respondent to the petitioners under the provisions of Right to Information Act, the petitioner in Writ Petition Civil No.490/2007 had secured 142 marks out of 250 prescribed for the written test and 363 marks out of 750 marks in vivevoce test, whereas the petitioner in Writ Petition No.491/2007 had secured 153.50 marks out of 250 marks in the written test and 316 marks out of 750 marks in vivevoce test. There is no manner of doubt that the prescription of 750 marks for vivevoce test is on higher side. This Court further notices that Hon'ble Justice Shetty Commission has recommended in its Report that 'The Vivevoce test should be in a thorough and scientific manner and it should be taken anything between 25 to 30 minutes for each candidate. What is recommended by the Commission is that the vivevoce test shall carry 50 marks and there shall be no cut off marks in vivevoce test. This Court notices that in All India Judges Association and Ors. v. Union of India and Ors.
MANU/SC/0251/2002 : [2002]2SCR 712, subject to the various modifications indicated in the said decision, the other recommendations of the Shetty Commission (supra) were accepted by this Court. It means that prescription of cut off marks at vivevoce test by the respondent was not in accordance with the decision of this Court. It is an admitted position that both the petitioners had cleared written examination and therefore after adding marks obtained by them in the written examination to the marks obtained in the vivevoce test, the result of the petitioners should have been declared. As noticed earlier 16 vacant posts were notified to be filled up and only five candidates had cleared the written test. Therefore, if the marks obtained by the petitioners at vivevoce test had been added to the Page 11 of 25 HC-NIC Page 11 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT marks obtained by them in the written test then the names of the petitioners would have found place in the merit list prepared by the respondent. Under the circumstances, this Court is of the opinion that the petitions filed by the petitioners will have to be accepted in part." 15 In the present case, I have gone through the advertisements very closely. In the advertisements, it was made clear that the candidates applying for the posts would have to first appear in the preliminary written test. It was also made clear in the advertisements that the written test was only a qualifying test. It was specifically made clear in the advertisements that the marks obtained in the written examination (qualifying test) would not be considered for determining the final selection on merit. The advertisements further clarified that there would be a vivavoce test (oral test of 100 marks). It was made clear that the candidates successful in the qualifying test would be called for the oral interview. It is true that in the advertisements, the minimum marks to be obtained by the candidates in the oral interview of 100 marks were not prescribed. It appears that the standard of the category wise cutoff marks for the oral interview was decided by the Board. The minutes of the Board meeting have been placed on record at Annexure: 'R/1' along with the affidavitinreply filed on behalf of the respondent. What is sought to be contended before me is that the Board could not have prescribed the minimum cutoff marks for the vivavoce category wise at the last minute, without disclosing the same in advance. This submission canvassed on behalf of the petitioners is based on the decision of the Page 12 of 25 HC-NIC Page 12 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT Supreme Court in the case of Himani Malhotra (supa), referred to above.
16. I am afraid; I am unable to agree with the submissions of the learned counsel appearing for the petitioners in this regard. In the case of Himani Malhotra (supa), the Registrar, High Court of Delhi had issued an advertisement inviting the applications from the eligible candidates for 16 vacant posts to be filled up by direct recruitment to the Delhi Higher Judicial Service. The Delhi Higher Judicial Service Examination was to stage selection process comprising a written examination and interview / vivavoce. The minimum qualifying marks in the written examination were prescribed for the different categories of the candidates. It appears from the facts of the said case that what was claimed by the petitioners was that the selection committee had not drawn the final merit list on the basis of a combined result of the written examination and interview, and if the merit list would have been drawn on such basis, the petitioners would have obtained fourth or fifth position in the final merit list as only five candidates had qualified for the vivavoce test, and no cutoff marks were prescribed for the viva voce test. It was submitted by the petitioners before the Supreme Court that what weightage should have been attached to the written test and interview would depend upon the requirement of service for which the Page 13 of 25 HC-NIC Page 13 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT selection was being made, but the minimum cutoff marks could not have been prescribed for the vivavoce test, after the process for selection had commenced. It was also argued that the oral interview was the only criteria adopted by the High Court for selection to the post in question which was illegal. In the facts of that case, the Supreme Court noticed that the previous procedure adopted by the High Court was not to have any minimum marks for the vivavoce. In such circumstances, the Supreme Court took the view that prescribing the minimum marks for the vivavoce was not permissible at all after the written test was conducted. The Supreme Court took the view that if the selection committee had prescribed the minimum marks only for the written examination, before the commencement of the selection process, it could not have, either during the selection process or after the selection process, added an additional requirement that the candidates should also secure minimum marks in the interview. The Supreme Court, thereafter, considered the recommendations of the Justice Shetty Commission as regards the conduct of the vivavoce test. The Shetty Commission recommended that the vivavoce test should carry 50 marks and there should be no cutoff marks in the vivavoce test. The Supreme Court took the view that the prescription of the cutoff marks at the viva voce test by the High Court of Delhi was not in accordance with the decision of the Supreme Court in the case of All India Justice Association Page 14 of 25 HC-NIC Page 14 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT and others v. Union of India reported in 2002 (Part II) SCR 712. The Supreme Court also took notice of the fact that the petitioners had cleared the written examination, and therefore, after adding the marks obtained by them in the written examination to the marks obtained in the vivavoce test, the result of the petitioners should have been declared. The Supreme Court also took notice of the fact that earlier 16 vacant posts were notified to be filled up and only five candidates had cleared the written test. In such circumstances, according to the Supreme Court, if the marks obtained by the petitioners at the vivavoce had been added to the marks obtained by them in the written test, then the name of the petitioners would have found place in the merit list prepared by the respondent.
17. The Supreme Court directed the respondents to add the marks obtained by the petitioners in the written examination to the marks obtained by them in the vivavoce test and to prepare a combined merit list along with the selected candidates.
18. Thus, from the above, it is manifest that the Supreme Court was dealing with a matter concerning appointments to the Delhi Higher Judicial Service. Many illegalities were noticed by the Supreme Court as regards the procedure adopted for the recruitment in the past, more particularly, considering the recommendations of the Justice Shetty Page 15 of 25 HC-NIC Page 15 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT Commission. The Supreme Court also considered that the interview was postponed on six occasions and then, minimum marks out of total 750 marks were prescribed for the interview. The Supreme Court also found that the prescription of marks for interview was on a very higher side.
19. In the case in hand, the advertisements made the position very clear for the candidates to understand. It was made clear that no weightage would be given to the written test as the same was just a qualifying test and the final merit would be determined on the basis of the performance in the oral interview, for that purpose, the members of the Board laid down certain standards, as reflected from the candidates on record.
20. It appears that at no point of time, the petitioners had raised any objection as regards the mode and method of recruitment. They willingly appeared in the written examination, and after clearing the same, they also willingly appeared in the oral interview without any objection of any nature, and ultimately, when they were not selected, they raised this issue for the first time by way of this petition.
21. In my view, no prejudice could be said to have been caused to the petitioners. The case in hand is not one of breach or violation of any statutory provisions of law or any rules. It was made clear to all the candidates that the final selection would be on the basis of the vivavoce Page 16 of 25 HC-NIC Page 16 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT test, and therefore, it could not be said that the Board added an additional requirement that the candidates should also secure minimum marks in the interview. Of course, it is true that such minimum marks were not declared beforehand, but at the same time, the fact remains that without raising any objection in that regard, the petitioners did appear in the interview knowing fully well that the final selection would be on the basis of the oral interview.
22. In my view, the decision of the Supreme Court in the case of Himani Malhotra (supra) should be understood in the facts of that case.
23. Besides the above, Himani Malhotra (supra) has been considered by the Supreme Court in the case of Yogesh Yadv v. Union of India and other reported in (2013) 14 SCC 623. In the case of Yogesh Yadav (supra), the issue before the Supreme Court was pertaining to the appointment to the post of the Deputy Director (Law) in the Other Backward Class (OBC category). The eligibility/qualification/experience required for the post was provided in the advertisement. The written examination was of 80 marks and the appellant had secured more than 50% marks. They were called for the interview and the result of which was published on the website of CCI. The appellants had to approach the High Court of Delhi challenging their nonselection primarily on the ground that the selection criteria was changed arbitrarily, that too, after Page 17 of 25 HC-NIC Page 17 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT the advertisement and law did not permit the respondents to change the rules of the game after the game had started. In this case, the candidates who had secured minimum of 50 marks in the written test in the General category and minimum of 40 marks in the reserved category were called for interview in the ratio of three times of the number of vacancies where the numbers of vacancies were more than 10 and 5 times of the number of vacancies for less ten. The marks obtained in the written test were not disclosed to the Interview Committee and the Committee independently and without being influenced by the marks obtained in the written test adjudged the candidates on the basis of the viva voce test and awarded the marks. The marks of the written test, which were kept in the sealed cover, were opened after the marks given to the candidates in the interview by the Interview Board and tabulated merit list was prepared accordingly. The CCI, keeping in view the nature and purpose of the post, decided to fix the percentage for final selection as 70 marks out of 100 for the unreserved category and minimum 65 marks out of 100 marks for the reserved category. It was argued that such a course of action was permissible and it was not a case where the mode of selection, at any time, was changed and insofar as the fixation of the Benchmark was concerned, that was the prerogative of the employer. After the petition was rejected by the Single Judge and also dismissal of the Letters Patent Appeal by the Division Bench, the matter was carried Page 18 of 25 HC-NIC Page 18 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT before the Supreme Court. The Supreme Court considered the question whether fixation of Benchmark would amount to change in the criteria of selection in the midstream when there was no such stipulation in that regard in the advertisement.
23.1 The Supreme Court made the following observations in paras 11, 12, 13, 14 and 15:
"11. Mr. Jayant Bhushan, the learned senior counsel appearing for one of the appellants submitted that the case is squarely covered by the ratio of judgment of this Court in Himani Malhotra v. High Court of Delhi. That case pertained to recruitment to the Higher Judicial Service in Delhi. The mode of selection was written test and viva voce . 250 marks were assigned for written test and 750 marks prescribed for viva voce test. When the advertisement was given there was no stipulation prescribing minimum marks/cut off marks at viva voce test after the written test was held. The persons who qualified the written test were called for interview. Interview was, however, postponed by the interview committee and it felt that it was desirable to prescribe minimum marks for the viva voce test as well. The matter was placed before the Full Court and Full Court resolved to fix minimum qualifying marks in viva voce which were 55% for general category, 50% for SC/ST candidates. After this change was effected in the criteria thereby prescribing fixation of minimum qualifying marks, the interviews were held. The petitioners in that case were not selected as they secured less than 55 % marks. Those two petitioners filed the Writ Petition submitting that prescribing minimum cut off marks in the viva voce test, after the selection process had started, when there was no such stipulation at the time of initiation of recruitment process, was unwarranted and impermissible. The Court, taking notice of its earlier judgments in Lila Dhar v. State of Rajasthan and K.Manjusree v. State of A.P. held that when the previous procedure prescribing minimum marks was not permissible at all after the written test was conducted, the ratio of the case is summed up in paragraph 15 of the Judgment, as under: "15. 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 viva voce, but if minimum marks are not prescribed for viva 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 Page 19 of 25 HC-NIC Page 19 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal."
12. This very argument based on the aforesaid judgment was taken in the LPAs before the High Court as well. However, the High Court took the view that the aforesaid judgment was not applicable in the instant case as the factual scenario was altogether different. Since we are agreeing with the view of the High Court, it would be apposite to take notice of the relevant discussion on this aspect:
"18. From the aforesaid pronouncement of law, it is vivid that an amended rule cannot affect the right of a candidate who has qualified as per the terms stipulated in the advertisement and is entitled to claim a selection in accordance with the rules as they existed on the date of the advertisement; that the selection can be regulated by stipulating a provision in the rule or laying a postulate in the advertisement for obtaining minimum marks are not prescribed for viva voce before the commencement of the selection process, the authority, during the selection process or after the selection process, cannot add an additional requirement/qualification that the candidate should also secure minimum marks in the interview; that the norms or rules as existing on the date when the process of selection begins will control such selection and that revisiting the merit list by adopting a minimum percentage of marks for interview is impermissible.
19. The factual scenario in the present case has a different backdrop. The advertisement stipulated that the short listed candidates would be called for interview before the final selection and mere fulfilling of minimum qualifications by itself would not entitle any applicant for being called for interview. Thereafter, in the instruction, the marks were divided. Regard being had to the level of the post and the technical legal aspects which are required to be dealt with, a concise decision was taken to fix 65% marks for OBC category in toto, i.e., marks obtained in the written examination and marks secured in the interview. It is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement. A standard was fixed for the purpose of selection."
13. Instant is not a case where no minimum marks prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in Page 20 of 25 HC-NIC Page 20 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT the written test would qualify for the interview. Entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After conducting the interview, marks of the written test and viva voce were to be added. However, since benchmark was not stipulated for giving the appointment. What is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does not amount to changing the "rules of the game". The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of game.On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. Fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case.
14. The decision taken in the instant case amounts to short listing of candidates for the purpose of selection/appointment which is always permissible. For this course of action of the CCI, justification is found by the High Court noticing the judgment of this Court in the State of Haryana v. Subash Chander Marwaha and Ors. In that case, Rule 8 of the Punjab Civil Service (Judicial Branch) Service Rules was the subject matter of interpretation. This rule stipulated consideration of candidates who secured 45% marks in aggregate. Notwithstanding the same, the High Court recommended the names of candidates who had secured 55% marks and the Government accepted the same. However, later on it changed its mind and High Court issued Mandamus directing appointment to be given to those who had secured 45% and above marks instead of 55% marks. In appeal, the judgment of the High Court was set aside holding as under:
"12. ... 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 appointment to be made, there is no constraint Page 21 of 25 HC-NIC Page 21 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT on the Government fixing a higher score of marks for the purpose of selection. 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 highstandards of competence to fix a score which is much higher than the one required for mere eligibility."
15. Another weighty reason given by the High Court in the instant case, while approving the aforesaid action of the CCI, is that the intention of the CCI was to get more meritorious candidates. There was no change of norm or procedure and no mandate was fixed that a candidate should secure minimum marks in the interview. In order to have meritorious persons for those posts, fixation of minimum 65% marks for selecting a person from the OBC category and minimum 70% for general category, was legitimate giving a demarcating choice to the employer. In the words of the High Court:
"In the case at hand, as we perceive, the intention of the Commission was to get more meritorious candidates. There has been no change of norm or procedure. No mandate was fixed that a candidate should secure minimum marks in the interview. Obtaining of 65% marks was thought as a guidelines for selecting the candidate from the OBC category. The objective is to have the best hands in the field of law. According to us, fixation of such marks is legitimate and gives a demarcating choice to the employer. It has to be borne in mind that the requirement of the job in a Competition Commission demands a well structured selection process. Such a selection would advance the cause of efficiency. Thus scrutinized, we do not perceive any error in the fixation of marks at 65% by the Commission which has been uniformly applied. The said action of the Commission cannot be treated to be illegal, irrational or illegitimate."
24. The decision of the Supreme Court in the case of Yogesh Yadav (supra) is the complete answer to the submissions canvassed by the learned counsel appearing on behalf of the petitioner. It was argued before me that the selection could not have been based solely on the viva voce test. The Supreme Court in the case of Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar and another reported in Page 22 of 25 HC-NIC Page 22 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT (1994) 6 SCC 293 had the occasion to consider this issue. The Supreme Court made the following observations in paras 6, 7, 8, 9 and 10:
"6. The question which is to be answered is as to whether in the process of shortlisting, the Commission has altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates amongst the applicants. In most of the services screening tests or written tests have been introduced to limit the numbers of the candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which govern the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. It has been impressed by the courts from time to time that where selections are to be made only on the basis of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate.
7. Herman Finer in his book 'Theory and Practice of Modern Government' at page 779 says :
"If we really care about the efficiency of the civil service as an instrument of Government, rather than as heavensent opportunity to find careers for our brilliant students, these principles should be adopted. The interview should last at least half an hour on each of two separate occasions. It should be almost entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus, and a short verbal report could be required on such subject, the scope of which would be announced at the interview........."
8. The sole purpose of holding interview is to search and select the best among the applicants. It is obvious that it would be impossible to carry out a satisfactory viva voce test if large number of candidates are interviewed each day till all the applicants who had been found to be eligible on basis of the criteria and qualifications prescribed are interviewed. If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint. The members of the Commission shall not be in a position to Page 23 of 25 HC-NIC Page 23 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT assess properly the candidates who appear before them for interview. It appears that Union Public Service Commission has also fixed a ratio for calling the candidates for interview with reference to number of available vacancies.
9. In Kothari Committee's Report on the "Recruitment Policy and Selection Methods for the Civil Services Examination" it has also been pointed out in respect of interview where a written test is also held as follows :
"The number of candidates to be called for interview, in order of the total marks in written papers, should not exceed, we think, twice the number of vacancies to be filled.............."
In this background, it is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written test, on some rational and objective basis so that personality and merit of the persons who are called for interview are properly assessed and evaluated. It need not be pointed out that this decision regarding short listing the number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of selection of the best candidates among the applicants for the post in question. This process of shortlisting shall not amount to altering or substituting the eligibility criteria given in statutory rules or prospectus. In substance and reality, this process of shortlisting is part of process of selection. Once the applications are received and the Selection Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be shortlisted, the process of selection commences. If with five years of experience an applicant is eligible, then no fault can be found with the Commission if the applicants having completed seven and half years of practice are only called for interview because such applicants having longer period of practice; shall be presumed to have better experience. This process will not be in conflict with the requirement of Section 8(3)(c) which prescribes the eligibility for making an application for the post in question. In s sense Section 8(3)(c) places a bar that no person having less than five years of practice as an Advocate or a pleader shall be entitled to be considered for appointment to the post of Presiding Officer of the Labour Court. But if amongst several hundred applicants, a decision is taken to call for interview only those who have completed seven and half years of practice, it is neither violative nor in conflict with the requirement of Section 8(3)(c) of the Act.
10. This Court in the case of State of Haryana v. Subash Chander Marwaha had to consider as to whether the appointments could have been offered only to those who had scored not less than 55% marks when Rule 8 which was under consideration, in that case, made candidates who had obtained 45% or more in competitive examination eligible for Page 24 of 25 HC-NIC Page 24 of 25 Created On Wed Sep 09 02:28:15 IST 2015 C/SCA/12551/2014 CAV JUDGMENT appointment. This Court held that Rule 8 was 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 and the one higher in rank is deemed to be more meritorious than the one who is lower in the rank. There was nothing arbitrary in fixing the scoring of 55% for the purpose of selection although a candidate obtaining 45% was eligible to be appointed."
25. For the foregoing reasons, this petition fails and is hereby rejected. Notice stands discharged. The adinterim order, if any, stands vacated forthwith.
(J.B.PARDIWALA, J.) chandresh Page 25 of 25 HC-NIC Page 25 of 25 Created On Wed Sep 09 02:28:15 IST 2015