Patna High Court
Tulika Shekhar & Ors vs The State Of Bihar & Ors on 26 November, 2018
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.2120 of 2016
In
Civil Writ Jurisdiction Case No.12822 of 2016
===============================================
1. Tulika Shekhar, daughter of Chandra Shekhar Chaudhary,
Resident of Village Bharsar, P.O. Lahri Tiwari Dih, P.S. Piro,
District Bhojpur at Ara, Presently residing at 184/12, Mithapur
Extension Part-30.09.2016 Agrawal Dharmashala Road, Badarpur,
New Delhi.
2. Nivedita Pooja, daughter of Sri Ajay Kumar Sinha,
Resident of New Colony, South, Ram Krishna Nagar, P.S Ram
Krishna Nagar, District Patna, Presently residing at Flat no.303,
Basera Apartment, Gachi Bowli, Miyapur Raod, Hyderabad,
P.O.P.S and District Hydrabad (Telangana).
3. Runa Shree, daughter of Dr. Ravindera Nath Sharma,
Resident of Mohalla Aam Gola, Pankha Toli, near Madya
Vidalaya, P.O.Ramna, P.S Muzaffarpur Town, District
Muzaffarpur.
4. Namrata Vilochan, daughter of Nalin Vilochan,
Resident of Shambhavi Niwas, Bankers Colony, Rahanganj
Laherisarai, P.O and P.S Laheriasarai, District Dharbhanga,
presently residing at A-44, Nandan House Apartment, Khojpura
Bailey Raod, Patna, P.S Shastri Nagar, District Patna.....
... ... Appellant/s
Versus
1. The State of Bihar, through the Chief Secretary-cum-Chairman,
Bihar Vikas Mission, Government of Bihar, Patna
2. The Development, Commissioner-cum-Member, Bihar Vikas
Mission, Government of Bihar, Patna
3. The Principal Secretary, Cabinet Secretariat Department-cum-
Member Secretary, Bihar Vikas Mission, Government of Bihar,
Patna
4. The Mission Director, Bihar Vikas Mission, Bihar State
Building, Construction Corporation Campus, Hospital Road
Rajbanshi Nagar, Patna ...
... ... Respondent/s
Patna High Court LPA No.2120 of 2016 dt.26-11-2018
2/26
===============================================
with
Letters Patent Appeal No. 2150 of 2016
In
Civil Writ Jurisdiction Case No.13235 of 2016
===============================================
1. Shashi Karn Prasad Akela son of Sri Deo Kumar Ram,
Resident of village and P.O. Rampur Chaura, P.S.
Rampur Chaura, District- Arwal.
2. Sharda Nandan Raju, son of Sri Sukhdeo Prasad Yadav,
Resident of village- Jalapur, P.O. Ekdanga, P.S. Belchhi,
District- Patna.
... ... Appellant/s
Versus
1. The State of Bihar through the Chief Secretary-cum-Chairman,
Bihar Vikas Mission, Government of Bihar, Patna.
2. The Development Commissioner-cum- Member, Bihar Vikas
Mission, Government of Bihar, Patna.
3. The Principal Secretary, Cabinet The Principal Secretary, Cabinet
Secretariat Department -cum- Member Secretary, Bihar Vikas
Mission, Government of Bihar, Patna.
4. The Mission Director, Bihar Vikas Mission, Bihar State Building,
Construction Corporation Campus, Hospital Road, Rajbanshi
Nagar, Patna.
... ... Respondent/s
===============================================
with
Letters Patent Appeal No. 2176 of 2016
In
Civil Writ Jurisdiction Case No.12822 of 2016
===============================================
Neha Sharma, Daughter of Sri Jagdish Prasad Sharma, Resident of
House no.10/9,Indrapuri, P.O. Keshri Nagar ,P.S. Patliputra
,District- Patna
... ... Appellant/s
Versus
1. The State of Bihar through the Chief Secretary-cum-
Chairman.Bihar Vikas Mission,Govt. of Bihar, Patna.
2. The Development Commissioner-cum-member,Bihar Vikas
Mission,Govt.of Bihar,Patna.
Patna High Court LPA No.2120 of 2016 dt.26-11-2018
3/26
3. The Principal Secretary, Cabinet Secretariat Department - cum -
Member Secretary, Bihar Vikas Mission, Govt.of Bihar,Patna.
4. The mission Director, Bihar Vikas Mission , Bihar State
Building ,Counstruction Corporation Campus, Hospital Road,
Rajbanshi Nagar, Patna.
5. Tulika Shekhar , Daughter of Chandrashekhar Chaudhary,Resident
of village- Bharsar,P.O.Lahri Tiwari Diah, P.S.piro,District-
Bhojpur at Ara,Presently Residing at 184/12,Mithapur extension
part-3, Agrawal Dharamshala Road, Badarpur,New Delhi.
6. Nivedita Pooja ,Daughter of Sri Ajay Kumar Sinha ,resident of
new colony,south ram krishna nagar,p.s.-ram krishna
nagar,district- patna, presently residing at flate no.303,basera
Apartment,Gachi Bowli, Miyapur Road,Hyderabad,P.O.,P.S. and
District Hyderabad ( Telangana ).
7. Runa Shree,Daughter of Dr.Ravindra Nath Sharma,Resident of
Mohalla Aam gola,Pankha toli, Near Madhya
Vidylaya,P.O.Ramna,P.S.Muzzffarpur.
8. Namrata Vilochan , Daughter of Nalin Vilochan,Resident of
Shambhavi Niwas,Bankers Colony,Rahanganj,Laheriasarai, P.O.
and P.S. Laheriasarai,district Darbhanga,Presently Residing at A-
44,Nandan House Appartment,Khajpura,Bailey Road,
Patna,Shastri Nagar,District Patna.
... ... Respondent/s
===============================================
Appearance :
(In Letters Patent Appeal No. 2120 of 2016, 2150 of 2016 and
2176 of 2016)
For the Appellant/s : Mr. S.B.K. Mangalam, Advocate
For Bihar Vikas Mission : Mr. Lalit Kishore, Sr. Advocate
: Mr. Piyush Lall, Advocate
For the State of Bihar : Mr. Dhirendra Kumar, AC to AAG-6
===============================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE) Date : 26-11-2018 Heard learned counsel for the appellants, Bihar Vikas Mission and the State.
Patna High Court LPA No.2120 of 2016 dt.26-11-2018 4/26 These three appeals arise out of a common judgment dated 5th October, 2016 passed in CWJC No. 12822 of 2016 and other analogous cases whereby the learned Single Judge has declined to interfere with the results of the recruitment carried out by the respondents in respect of certain posts of Associates the qualifications whereof were advertised on 23rd February, 2016 for achieving the aims and objects of the Bihar Vikas Mission, Government of Bihar, Patna.
The appellants' grievance is that in spite of having been successful in the recruitment process, they have not been finally selected as the respondents proceeded to introduce a new criteria of a minimum cut-off marks to be achieved by the candidates in their respective categories during interview. This criteria according to the appellants was not part of the advertisement nor was it known to either the candidates nor did it exist prior to finalization of the interview of the candidates. It is only at the time of the preparation of the results by the selection committee that this criteria was introduced for the purpose of eliminating candidates on the criteria of not having attained the minimum of the marks the cut-off whereof was prescribed after the interview had been held and the recruitment process was over. In short, the submission raised by the learned counsel on behalf of the appellants is that the Patna High Court LPA No.2120 of 2016 dt.26-11-2018 5/26 rules of the game have been altered after the game had been played resulting in an arbitrary elimination of the appellants who otherwise stood selected in order of their merit as per the procedure prescribed under the advertisement which did not contain any minimum cut-off marks to be obtained by a candidate during interview.
For this, the learned counsel for the appellants have heavily relied on the terms and conditions of the interview and the factual assertion made in paragraph 18 of the counter affidavit filed on behalf of the respondents and sworn by Shri Neelkamal dated 30th September, 2016 where according to the appellants, the respondents have come out with a reason to support their decision of introducing the cut-off marks in the interview which according to the appellants was impermissible and is even not reflected in the decision taken on 1st July, 2016. Learned counsel for the appellants have invited the attention of the Court to the judgment in the case of K. Manjusree vs. State of Andhra Pradesh and Anr. delivered on 15th February, 2008 reported in (2008) 3 SCC 512 to substantiate their submissions. It has been further contended that even though the said judgment is under reference before a Larger Bench in the case of Tej Prakash Pathak and Ors vs. Rajasthan High Court and Ors. delivered on 20th March, 2013 reported in Patna High Court LPA No.2120 of 2016 dt.26-11-2018 6/26 (2013) 4 SCC 540, yet the issue raised in the aforesaid reference would not be affecting the case of the appellants inasmuch as in the present case the rules of the game have admittedly been altered after the Selection Committee process attained its finality with the conclusion of the interview. It is therefore submitted that the reference made to the Larger Bench would not be an impediment in proceeding to consider this case where on the admitted facts the respondents have introduced the criteria after the selection process was over and which now stands explained by them in paragraph 18 of the counter affidavit referred to hereinabove. It is urged that the learned Single Judge has completely ignored to consider this aspect of the matter and has committed an error in relying on the judgment in the case of Yogesh Yadav vs. Union of India reported in (2013) 14 SCC 623.
It is also on record that a Division Bench of this Court explored the possibility of extending benefits keeping in view the status and qualification of the appellants by calling upon the respondents to inform the Court as to whether it was possible to consider the candidates against other vacancies that came to be subsequently notified and were otherwise available, to which a supplementary counter affidavit has been filed captioned as the second supplementary affidavit dated 3rd October, 2018 where a Patna High Court LPA No.2120 of 2016 dt.26-11-2018 7/26 detailed analysis by the respondents has been placed on record to contend that it was otherwise also not possible to accommodate the appellants.
It is in this background that the learned counsel for the appellants contend that they should and must succeed as they fulfill the entire eligibility criteria as prescribed in the advertisement and do not fall short of any merit as fixed therein, hence their elimination by the introduction of a criteria post selection is arbitrary and violative of Article 14 of the Constitution of India.
The impugned judgment has been defended by the learned Advocate General contending that firstly the selection process had not been finally concluded as the results were yet to be declared, and if at this stage that in order to ensure the selection of the best out of those who came within the zone of consideration that a benchmark was introduced before making any final selection, no prejudice is caused to any of the appellants as it was open to the State employer to choose the best and it is not the case of the appellants that any person having secured lesser marks than them have been selected. In the absence of any such material and without there being any element of factual malice alleged, the contention that the appellants stood selected by virtue of the Patna High Court LPA No.2120 of 2016 dt.26-11-2018 8/26 process already completed is not correct inasmuch as the employer retains the authority even to the extent of not making recruitment in spite of the selection process having successfully proceeded. In effect, the contention is that no indefeasible right has accrued in favour of the appellants so as to vest them with any benefits in order to secure the protection of their rights. The contention is that they have been considered and they were within the zone of consideration and no procedure was introduced intentionally so as to eliminate them from the zone of consideration. The minimum benchmark of marks in the interview was fixed only to select the best out of the entire candidates and this sorting out by the employer by applying a rational criteria is nowhere arbitrary nor does it offend Article 14 of the Constitution of India. It is urged that the learned Single Judge did not commit any error in relying on the judgment in the case of Yogesh Yadav (supra) and, therefore, the law, as applied by the learned Single Judge clearly answers this issue. He submits that even though during the course of the pendency of this appeal it was brought to the notice of the Court about a similar issue having been raised before the Supreme Court before a Larger Bench, yet on the facts of the present case it is evident that in the absence of any violation of legal or fundamental rights or even the terms of the advertisement, the Patna High Court LPA No.2120 of 2016 dt.26-11-2018 9/26 appeal does not deserve to be entertained. He contends that the provisions of the advertisement in no way prohibit or limit the powers of the employer to adopt a rational process for selecting the candidate, which in the present case in no way prejudices the cause of any candidate or is otherwise in violation of Article 14 or 16 of the Constitution of India. The appellants have been given an equal opportunity to prove their excellence during interview and if the employer has decided to adopt a minimum criteria of excellence, then the same does not amount to altering the rules of the game after the game has been played.
We have considered the submissions advanced and having gone through the pleadings it would be apt to clear at the outset that the advertisement did not contain any declaration of a minimum prescription of marks to be secured by a candidate during interview. The selection process proceeded and ultimately when the results were placed before the Selection Committee, a decision was taken on 1st July, 2016, which is extracted as under:-
"fnukda 01-07-2016 dks fodkl vk;qDr lg v/;{k p;u lfefr] fcgkj fodkl fe'ku dh v/;{krk esa lEié cSBd dh dk;ZokghA &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& mifLFkfr 1- iz/kku lfpo] foÙk foHkkx 2 iz/kku lfpo] lkekU; iz'kklu foHkkx 3- iz/kku lfpo okf.kT;dj foHkkx 4- lnL; lfpo] fcgkj fodkl fe'ku 5- fe'ku funs'kd] fcgkj fodkl fe'ku 6- izks0 jkts'k dqekj] ,lksfl,V izksQslj pUnzdqIr izca/ku laLFkku 7- izks0 T;ksfr oekZ] lgk;d izksQslj pUnzxqIr izca/ku laLFkku Patna High Court LPA No.2120 of 2016 dt.26-11-2018 10/26 dk;Zokgh fnukad 23-02-2016 dks NIT reference no. BBM/2015- 16/HR-02 }kjk foKkfir 7 inksa ds fy, fo'ks"kKksa dks lafonk ij fcgkj fodkl fe'ku esa fu;kstu gsrq p;u lEcU/kh cSBd gqbZA mijksDr foKkiu ds fo:) v|ru dh xbZ dkjZokbZ ls lHkh lnL;ksa dks voxr djk;k x;kA lHkh inksa ds fo:) lk{kkRdkj fofHké frfFk;ksa esa fd;s x;s Fks] vafre lk{kkRdkj 27-06-2016 dks lEié gqvk FkkA foxr fnukad 10-05-2016 dks lEiUu foxr cSBd esa p;u dh izfØ;k ls lEcfU/kr dfri; fu.kZ; fy;s x;s Fks] ftlesa izeq[k Fkk & izR;sd vH;FkhZ ds vkosnu ij eqY;kadu fdl vk/kkj ij fd;k tk;sxk ,oa blds fy, D;k ekinaM gksaxs \ mu eki.naMks ds vk/kkj ij lHkh oS/k izkIr vkosnsuksa dk ewy;kadu dj] bldh tk¡p fo'ks"k nyksa ds }kjk djkbZ xbZ Fkh rnqijkar ,d inokj@dksfVokj es/kklwph rS;kj dh xbZA mDr cSBd esa ;g Hkh fu.kZ; fy;k x;k fd izR;sd in ds fy, es/kklwph ds vk/kkj ij inokj@dksfVokj foKkfir inksa dh la[;k dk nks xquk vH;fFkZ;ksa dks lk{kkRdkj ds fy, cqyk;k tk;] tks es/kklwph esa lcls Åij gksa] rnuqlkj vH;kfFkZ;ksa dks inokj@dksfVokj p;u djrs gq, lk{kkRdkj ds fy, fofHké frfFk;ksa dks cqyk;k x;k FkkA lk{kkRdkj ds fy, p;u lfefr ds lnL; dks feydkj nks cksMZ xfBr fd;k x;k] ftlesa izR;sd cksMZ esa pUnzxqIr izca/ku laLFkku] iVuk ls Hkh 2&2 fo'ks"kKksa dks lfEefyr fd;k x;k FkkA ftl izdkj vH;fFkZ;ksa ds CV/ vkosnu ds vk/kkj ij ewy;kadu ds ekin.M r; fd;s x;s Fks] mlh izdkj lk{kkRdkj ds fy, Hkh fofHkéekin.nksa rFkk Essential Qualification, Desirable Qualification, duties and responsibilities rFkk values and competencies to be showcased by the candidates, inksa ds fy, dk;Z vuqHko rFkk jkT; ,oa dsUnz ljdkj ;k vU; [;kfrizkIr laLFkk esa dk;Z dk vuqHko ds lkFk&lkFk excellent written and oral skills dk Hkh /;ku lk{kkRdkj ds le; j[kk x;kA ;s lHkh in fcgkj fodkl fe'ku ds mís';ksa dh iwfrZ gsrq foKkfir fd;s x;s FksA fcgkj fodkl fe'ku dk eq[; mís'; fodkflr fcgkj ds 7 fuf'p;& d`f"k jksM eSi] ekuo fodkl fe'ku] dkS'ky fodkl fe'ku] vk/kkjHkwr lajpuk vksj vkS|ksfxd izksRlkgu dk;ZØe ,oa ladYiksa dks fe'ku eksM esa fØ;kUo;u lqfuf'pr djuk gSA blds fy, laLFkkaxr O;oLFkk dks lqn`<+ djuk rFkk uoh ,oa csgrj dk;Z iz.kkyh dks izksRlkfgr fd;k tkuk gSA bu mís';ksa dh iwfrZ ds fy, ds fy, 'kSf{kd leqnk;] futh {ks= ,oa flfoy lkslkbZVh ds Kku lalk/kuksa ,oa vuqHkoksa dk Hkh mi;ksx djus ds fy, fo'ks"kKksa] fopkjdks] vuqHkoh is'ksojksa ,oa dk;ks esa n{k ;qokvksa dks vko';drkuqlkj fu;ksftr dj fe'ku ds dk;ksZ dks Rofjr xfr ls lEikfnr djuk gSA fe'ku ds bu nkf;Roksa dks iwjk djus ds fy, ;g vko';d gS fd] ftu is'ksoj n{k O;fDr;ksa dks dk;Z gsrq Patna High Court LPA No.2120 of 2016 dt.26-11-2018 11/26 pquk tk;s] os vius&vius {ks= esa vxz.kh gksaA bu vk/kkjksa dks /;ku esa j[krs gq, nksuksa lk{kkRdkj lfefr }kjk lHkh lk{kkRdkj ds fy, vkeaf=r vH;kfFkZ;ksa dk CV ,oa vU; n{krk dh ij[k lk{kkRdkj ds nkSjku dh xbZA blls izkIRk vuqHko ds vk/kkj ij p;u gsrq fuEufyf[kr fu.kZ; fy;k x;k gS%& 1- fe'ku ds dk;ksZ ds Rofjr ,oa izHkkodkjh <ax ls fu"iknu djus gsrq mPp dksfV ds n+{k ,oa oSls O;fDr;ksa dks gh p;u fd;k tk;] tksfd inokj foKkfir dk;ksaZ ds fy, loZFkk mfpr gksa] ftudk rduhdh Kku mPpre gks] ftuesa yhMjf'ki vkSj Vhe dks ,d lkFk ysdj pyus dh {kerk gks rfd blds lkFk&lkFk presentation ,oa communication skill esa Hkh os n{k gksaA 2- lk{kkRdkj gsrq lHkh inksa ds fy, dksfVokj fuEu izdkj ls cut off marks fu/kZfjr fd;s x;s%& ¼d½ lkekU; oxZ & 60 vad ¼[k½ fiNM+k/ vR;ar fiNM+k oxZ / vR;ar fiNM+k oxZ efgyk;sa & 55 vad ¼x½ vuqlwfpr tkfr@ tu tkfr & 50 vadA 3- lk{kkRdkj ds vadks dks tksM+rs gq, ,oa fu/kkZfjr cut off marks ds vk/kkj ij rS;kj dh xbZ es/kklqph esa in ,oa dksfVokj vH;fFkZ;ksa ds dqy izkIrkadks ds cut off marks p;u gsrq fuEu izdkj fu/kkZfjr fd;s x;s%& ¼d½ lkekU; oxZ & 80 vad ¼[k½ fiNM+k/ vR;ar fiNM+k oxZ / vR;ar fiNM+k oxZ efgyk;sa & 70 vad ¼x½ vuqlwfpr tkfr@ tu tkfr & 60 vadA lnL; lfpo dks funsf'kr fd;k x;k fd os mijksDr fu.kZ;ksa ds vk/kkj ij vafre :i ls in ,oa dksfVokj p;u lwph cuk;s ,oa bl ij v/;{k p;u lfefr dh Lohd`fr izkIr dj fu;kstu dh dkjZokbZ djs /kU;okn Kkiu ds lkFk cSBd lekIr dh xbZA"
This decision was announced on 25th July, 2016 through a public notice which came to be assailed in the writ petitions filed by the appellants. The same is extracted hereinunder:-
Government of Bihar Bihar Vikas Mission Important Notice Memo No........92/camp Dated 25-07-2016 Patna High Court LPA No.2120 of 2016 dt.26-11-2018 12/26 It is hereby informed to all concerned that Bihar Vikas Mission advertised vacancies for seven posts vide its reference Ref. No-BVM/2015-16/HR-02 dated 23.02.2016. Preliminary verification of applications was conducted and it was found that many applications are not fit to be considered for evaluation. As a consequence of this a list of rejected applications were uploaded on the website of Cabinet Secretariat Department. The applications, which were found fit for evaluations, were evaluated, as per the yardsticks decided by the selections committee of BVM. Even during the process of evaluation some applications were found fit to be rejected. As a result of this a supplementary list of rejected applications were uploaded on the website of Cabinet Secretariat Department. This time the list of accepted applications were also uploaded on the website in their alphabetical order.
2. When the lists of rejected applications were uploaded, objections were seeked from the agrieved candidates. After the completion of scheduled date for filing objection, a proper redressal of all the applications/objections were done and a list of redressal was also uploaded on the same website. After uploading of all the above said three lists, some objections were received were that their names are neither in the rejections list nor in the selection list. These applications were properly dealt with. As per these objections a supplementary list of accepted applications are being uploaded with this notice.
3. As per the decision of selection committee, two times of vacancy in each category in all the posts, the candidates were called for interview. The process of interview was conducted on four dated. At the time of interview, verification of certificates and wherever required.
A List of changes in marks after verification of documents/certificates is also being uploaded on the same website with this notice.
4. After the completion of interview, as per the need and required proficiency of the organisation like BVM, and to maintained the quality of the professional/technical experts, a cut-off marks of interview and total cut off marks were decided by the selection committee. In interview, the cut-off marks for General category is 60 marks, for BC & MBC category is Patna High Court LPA No.2120 of 2016 dt.26-11-2018 13/26 55 and for SC & ST category was decided to be 60. As per the above process following lists are being uploaded :-
I. Marking of all accepted candidates. Annexure-1 II.List of candidates (two times of vacancy) called for interview. Annexure-II III. Marks of candidates called for interview (with change of marks at the time of verification of document) with interview marks. Annexure -III IV. List of candidates finally selected as per the decision of selection committee. Annexure IV V Lists as per para 2. Annexure IV Member Secretary Bihar Vikas Mission Bihar, Patna.
The aforesaid documents on a careful perusal would indicate that it is in order to achieve the object of the Mission, best of professionals were to be selected and it is after going through their curriculum vitae and level of efficiency the Selection Committee came to the conclusion that in order to select the best a criteria deserves to be adopted to ensure the entry of the best of the lot.
Learned counsel for the appellants are correct in their submission that neither in the Resolution dated 1st July, 2016 nor in the impugned notice dated 25th July, 2016 was there any detail indication about the reasons that led the selecting body to adopt the criteria of selecting those who would fall above the minimum cut off marks that was prescribed by the Selection Committee in the meeting held on 1st July, 2016.
Patna High Court LPA No.2120 of 2016 dt.26-11-2018 14/26 On the other hand, the respondents in paragraph 18 of their counter affidavit referred to above categorically stated as follows:-
"It is stated here that during the interview it was found that candidates who had professional qualifications from reputed engineering and management institutes had better comprehension of their filed of specialisation and showed a better understanding of the nature of the duties and responsibilities to be discharged by them keeping in view the purposes for which the Mission had been constituted than the candidates who had such qualifications from other professional institutes/through correspondence courses even though these candidates could obtain better percentage of marks in their profession qualifications awarded to them by their respective Institutes, during the course of interview their understanding and comprehension of their filed of specialisation was not upto mark and the competencies and values to be showcased by the candidates as demanded and required for the mission were below average.
During the course of interviews, the candidates were also judged on the basis of their curriculum vitae, claims against criteria and general easy which were submitted by them with their application and were supposed to have been written by them personally. Those candidates, who could not explain the achievements written in the above mentioned documents submitted by them, were lacking in basic communication skill and required Patna High Court LPA No.2120 of 2016 dt.26-11-2018 15/26 competencies and values. It means that claim made by such candidates were seem to be not genuine. In this scenario, the selection committee rightly decided to fix the cut off marks for interview as well as cut off for total marks obtained, so that the vest qualified brains can be selected who could help the mission and the departments to fulfil their goals and objectives."
On a perusal of the aforesaid averments made in the counter affidavit it appears that what the Selection Committee had in mind is that some of the candidates who were from other professional institutes or had attained qualifications through correspondence course, even though had better percentage of marks awarded to them against their professional qualifications, but during the course of interview their understanding and comprehension on the field of specialization was not up to the mark. It was also observed that candidates could not explain the achievements acquired by them as indicated in the documents submitted by them in support of their candidature.
It is trite law that reasons cannot be supplemented through an affidavit which otherwise must exist in the ultimate order passed or the decision taken. However, in the instant case, we find that the decision dated 1st July, 2016 did specifically indicate that there were factors revealed while interacting with the candidates during the interview that an opinion was formed to fix a Patna High Court LPA No.2120 of 2016 dt.26-11-2018 16/26 minimum cut off merit. Thus, there is a clear link between the recital contained in the decision dated 1st July,2016 (as emphasized in bold therein) and the averments contained in the counter- affidavit extracted hereinabove, which does not in any way run counter to it. It is this recital in the counter-affidavit which is being contested by the appellants on the ground that the same is neither rational nor can it be relied on as it is neither specifically mentioned either in the decision or in the impugned notice.
We are unable to accept this contention inasmuch as we have examined the intent and purpose for which such professionals were to be selected and which is borne out from the Notification dated 28th June, 2016 wherein the Bihar Vikas Mission was established as a society by the Government to function as such, the registration whereof was made under the provisions of the Societies Registration Act, 1816. The objectives of the Mission are spelt out in clause 4 which is extracted hereinunder:-
"4 Objectives: The Mission will have the following objectives:-
i. To ensure implementation in mission mode, fixation of priorities and monitoring of achievements against targets of programs and other resolutions of 7 Nischay for developed Bihar within the Programs of Good Governance 2015-2020, Agriculture Road Map, Human Development Mission, Skill Development Mission, Patna High Court LPA No.2120 of 2016 dt.26-11-2018 17/26 Infrastructure development and Industrial incentives.
ii. To ensure strengthening of institutional arrangement and to promote modern and better work culture for a faster and more effective implementation of schemes and programs.
iii. To provide assistance in strengthening of monitoring mechanism and methodology for government programs and encourage use of modern techniques in Data collection, analysis and flow.
iv. External ecosystem - To develop institutional arrangements and enter into agreements for availing the experiences and knowledge resource of educational community, private sector and civil society. To involve experts, thinkers, experienced professionals, youth and students for ensuring effective policy framing and compliance.
v. As a facilitator, actively provide easy access and availability of techinical- managerial knowledge, methods and resources to various levels of administration.
vi. To ensure simplification of processes and make aware innovative solutions and best practices for developing and establishing a fast track system for quick decision making. To provide customized solutions for difficult problems and issues.
vii. To help in providing solutions to policy issues cropping up during the implementation of programs and ensure their approval from appropriate authority. To ensure coordination and removal of difficulties among departments in implementation of programs. To encourage Patna High Court LPA No.2120 of 2016 dt.26-11-2018 18/26 documentation and sharing of experiences of modern methods and better work mechanisms of problems resolution among departments.
viii. To establish effective public dialogue and receive public reactions and response. Document the progress and achievements and ensure their effective dissemination and propagation for public awareness and education.
ix. For raising additional resources, enter into partnership with local and global organizations, governments and financial institutions for capacity enhancement for various activities of the Mission."
The same was also explained in the advertisement dated 23rd February, 2016 wherein the selection criteria was fixed through a two step evaluation method. 40 percent weightage was given to the curriculum vitae of the candidate, 20 percent weightage was to be given to a write up of 1000 words in English by the candidate. A 750 word essay was to be given weightage of 20 percent. This would conclude step one followed by step two that was an In-person interview carrying 20 percent weightage. The interview had to have a break up of 100 marks with an eight level criteria to be assessed with marks awarded against each of the heads. Since the same is relevant for the purpose of the present controversy, it is extracted hereinunder:-
Step 2: In-person interview (20% weightage) Patna High Court LPA No.2120 of 2016 dt.26-11-2018 19/26 Criteria Total Marks Marks Awarded Understanding 20 of the job and suitability Technical 20 understanding Analytical 15 Approach and Conceptual Thinking Leadership 15 Quality and Team engagement Ethics and 10 Integrity Organizational 10 Commitment and Flexibility Communication 5 and Presentation skills Over-all job-fit 5 Total 100 Note: The final result will be a total of Curriculum Vitae (40%) + Claims Against Criteria (20%) + General Essay (20%) + In-person interview (20%) The final results were to be prepared and the selections were to be based on merit as per the note appended thereto with a further declaration that the decision of the Mission will be final. Patna High Court LPA No.2120 of 2016 dt.26-11-2018 20/26 There is one more fact which is noteworthy that this engagement is in the shape of recruitment on contractual basis for a period of eleven months, reserving the right in the Mission to cancel the decision in future. The contract executed is renewable and in the present case those who have been selected even though their period of eleven months have expired yet they have been renewed in their engagement in future till the year 2019. This fact is necessary to appreciate that the cause of action of the appellants still survive as the challenge raised is to the original selection.
On a perusal of the aforesaid break up of marks during interview, it is evident that respective attributes have been allocated different marks for the assessment of a candidate.
The question is as to whether fixing of a minimum standard of overall efficiency is within the powers of the Selection Committee for being introduced after the interview has been held.
In our considered opinion the stage of assessing the minimum marks to be obtained by a candidate for ultimately being selected would fall for consideration only after the aforesaid assessment has been made and the candidate has been actually interviewed where the Selection Committee had the opportunity to interact with the candidate and know about the status of his professional achievements and his potential to occupy the post. Patna High Court LPA No.2120 of 2016 dt.26-11-2018 21/26 The assessment of the performance capacity of the candidates would arrive only after the interview is held. In this regard, if on a comparative study of the professional achievements of the candidates for the posts in question, the Selection Committee decided to fix a minimum benchmark for picking up the best of the candidates amongst them so as to subserve the ultimate objective and purpose of the Mission, then the same cannot be said to be arbitrary so as to prejudice any vested rights of the appellants nor does it amount to raising the bar of eligibility. As noted earlier it is not the case where persons having acquired lesser merit have been offered appointment resulting in discrimination. We, therefore, find no error with the procedure adopted by the Selection Committee in judging the merits of the candidate for their professional engagement by fixing of a minimum cut off merit to be achieved by a candidate during interview. The merit of assessment cannot be compromised by a reassessment through judicial review unless the assessment by the selecting body is perverse or beyond reasonable comprehension. This criteria of a minimum benchmark is rational and has a nexus with the object sought to be achieved. It does not amount to raising the bar of eligibility.
Patna High Court LPA No.2120 of 2016 dt.26-11-2018 22/26 The selection process had not been completed as the results had not been declared. The contention of the learned counsel is that once the marks allocated to the appellants were known to the Selection Committee, it is thereafter that the minimum cut off marks was prescribed with a purpose to eliminate the appellants. This argument is not acceptable. No mala fides against any of the members of the selecting body has been alleged so as to gather an intentional decision motivated to cause prejudice to the appellants alone. The choice is not an outcome of any selective approach so as to infer a mala fide. It was a decision in respect of all those who had faced the interview and were otherwise eligible. This process was not a declaration of ineligibility but fell within the realm of criteria of selection of the most suitable candidates. It therefore does not reflect any mala fides on the part of the selecting body. The knowledge of marks awarded during interview cannot be said to have any malicious impact on the decision ultimately taken.
Coming to the issue relating to the dynamics of the proposition that the rules of game cannot be changed after the game has been played, we find that while proceeding to refer the judgment in the case of K. Manjusree (supra), the three Judges Bench in the case of Tej Prakash Pathak (supra) has also referred Patna High Court LPA No.2120 of 2016 dt.26-11-2018 23/26 to other judgments particularly the judgment in the case of State of Haryana vs. Subhash Chandra Marwaha reported in (1974) 3 SCC 220. From a perusal of paragraphs 11 to 14 of the order in the case of Tej Prakash Pathak (supra), we find that the issue raised for reference is about the alteration in the eligibility criteria.
In the instant case, it is not the stand of the State that the appellants were ineligible to apply and face the interview. To the contrary, it is in order to select the best out of those who were within the zone of consideration that the minimum benchmark to be obtained during interview was fixed. We, therefore, see no reason to keep the matter pending on account of the reference before a Larger Bench moreso in view of the reasons which led to the adoption of a criteria for selection after the interview and before declaration of final results. In our opinion such a professional engagement, in order to fulfill the objective of the Mission, inherently requires the scrutiny and selection of the most eminent who possess a higher level of proficiency and skill in their respective fields. The level of proficiency to be possessed by a candidate on the basis of assessment during interview is the prerogative of the employer unless it could be shown that such a criteria is otherwise arbitrary or violative of Article 14 of the Constitution of India. We find that in order to sort out the best and select those who would be able to Patna High Court LPA No.2120 of 2016 dt.26-11-2018 24/26 fulfill the object of the Mission with their ultimate capacity, cannot be said to be violative of Article 14 of the Constitution of India. The accomplishment of a candidate can be explored during interview, and apart from the objective allocation of marks, the Selection Committee cannot be said to have acted arbitrarily by deciding to select only those who have achieved a minimum level of performance during interview. This does not amount to changing the rules of the game inasmuch as firstly there was no such prohibition in the advertisement, secondly no prejudice has been caused to the appellants and thirdly no malice in fact has been alleged. The entire exercise was to choose the best players from amongst those who had played the game. Since the introduction of the criteria by the Selection Committee is not to deliberately non-suit the appellants, the decision dated 1st July, 2016 that has culminated into the impugned notice dated 25th July, 2016 cannot be said to be suffering from malice in law.
We have also come across some other judgments that deserve mention, namely, that in the case of Salam Samarjeet Singh vs. High Court of Manipur at Imphal delivered on 7th October, 2016 reported in (2016) 10 SCC 484. A difference of opinion was recorded by the Bench in the said report and the case was directed to be placed before the appropriate Bench for final Patna High Court LPA No.2120 of 2016 dt.26-11-2018 25/26 adjudication. One of the Hon'ble Judges held that in the absence of any prejudice being caused to the appellant therein the decision that had been taken for fixing a minimum percentage of marks to be obtained by the candidate in the interview was not unlawful. However, in the dissenting opinion of the other Hon'ble Judge it was recorded in paragraph 45 that there was a clear impediment in proceeding to lay down a minimum pass mark for interview which was meant only for the appellant as he was the lone candidate for consideration. The aforesaid was, therefore, a clear suggestion where only one candidate was available and he was sought to be eliminated by introduction of the said Rule.
However, the same Bench in a judgment delivered thereafter on 9th November, 2016 in the case of V. Lavanya and Ors. Vs. State of Tamil Nadu reported in (2017) 1 SCC 322 came to a unanimous conclusion that no prejudice has been caused to the candidates as the selection criteria had not been altered in their respect, and the purpose of relaxation, which was extended to other candidates, was to increase the participation of more candidates of a particular category. However, while further proceeding to consider the various judgments on this issue, including those that have been relied on by the learned counsel for the appellants, the Bench in paragraph 35 of the report did refer to Patna High Court LPA No.2120 of 2016 dt.26-11-2018 26/26 the matter pending before the Larger Bench in the Apex Court and indicated the distinction between the minimum eligibility criteria for selection and altering the mere procedure of selection.
On an overall conspectus of the entire law and the facts of the present case, we see no reason to differ with the view taken by the learned Single Judge for all what has been stated above, as the respondents do not appear to have committed any illegality nor have they violated any constitutional provision so as to invite the interference of the High Court in the exercise of its extraordinary jurisdiction.
In the result, all the appeals fail and are, hereby, dismissed.
(Amreshwar Pratap Sahi, CJ) (Jyoti Saran, J) Vikash/-
AFR/NAFR AFR CAV DATE NA Uploading Date 26.11.2018 Transmission Date NA