Gujarat High Court
Khistariya Parbatbhai Bhimabhai vs State Of Gujarat on 4 July, 2025
NEUTRAL CITATION
C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4474 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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KHISTARIYA PARBATBHAI BHIMABHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MS. SURBHI BHATI, AGP for the Respondent(s) No. 1,2
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/07/2025
ORAL JUDGMENT
Rule returnable forthwith. Learned AGP and learned advocate Mr. Premal Joshi appearing for the respondent No.3 waive service of notice of rule for the respective respondents.
1. The present petition is filed for seeking the following reliefs:
"(a) to admit this petition and to allow the same by issuing Page 1 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined Notice for final disposal on returnable date;
(b) to quash and set aside the impugned actions and orders of the respondents in not including the petitioner's name in the selection list for the post of Joint Director of Agriculture, Class-I declared by GPSC on 8-12-2017 as per Annexure-G, though 2 (two) posts are notified in the Advertisement at Annexure-B and only 1 (one) candidate is selected and the petitioner is the second highest meritorious candidate;
(c) to direct the respondents to include the petitioner's name in the Selection List for the post of Joint Director of Agriculture, Class-I, by rounding off the petitioner's 49.72 marks to 50 marks, and to give him appointment accordingly, with all the consequential benefits;
(d) to direct the respondents to exclude from consideration and calculation of merit the 5 (five) questions being Question Nos. 56, 136, 138, 142 and 278 of "A" series Question Booklet the answers whereof are uncertain, debatable and doubtful and for which GPSC had received several representations and GPSC even changed some of the answers in the Final Answer-Key declared by it, as referred to in the statement at Annexure-K, and to revise the Final Result accordingly and to select the petitioner and to give him appointment with all the consequential benefits;
(e) to quash and set aside the Final Result declared by GPSC on 8-12-2017 as per Annexure-G;Page 2 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025
NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined
(f) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay the operation of the Final Result declared by GPSC on 8-12-2017 as per Annexure-G for the post of Joint Director of Agriculture, Class-I;
(g) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to include the petitioner's name in the list of candidate to be recommended to Government for appointment for the post of Joint Director of Agriculture, Class-I, subject to further order of this Hon'ble Court;
(h) to grant any other appropriate and just relief/s including the costs of this petition;"
2. Brief facts of the case as stated in the present petition are as under:
2.1 The petitioner was born on 01.06.1968 and is aged about 49 years at the time of filing of the petition and he belongs to Socially and Educationally Backward Class (SEBC). He was appointed by direct selection through GPSC as Agriculture Officer, Class-II on 24.12.1996.
Thereafter, he was appointed by direction through GPSC Deputy Director of as Agriculture, Class-I on 19.05.2010, Page 3 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined and he has been discharging his duties as such until this date. The petitioner has reached at the remarkable achievements in his service. Now the petitioner has been wrongfully excluded from selection and denied appointment by direct selection on the post of Joint Director of Agriculture, Class-I. Hence the present petition has been preferred.
3. Heard Mr. K.B. Pujara, learned advocate for the petitioner, Mr. Premal Joshi, learned advocate for the respondent No.3 and Ms. Surbhi Bhati, learned Assistant Government Pleader for the respondent No.1 and 2 - State.
4.1 Mr. K.B. Pujara, learned advocate for the petitioner by referring to the prayers prayed in present petition and has submitted that the petitioner was born on 01.06.1968, and at the time of filing of the present petition, he is aged about 49 years and he belongs to Socially and Educationally Backward Class (SEBC). He has submitted that the petitioner was appointed by direct selection through GPSC as Agriculture Officer, Class-II on 24.12.1996. Thereafter he was appointed by direction through GPSC as Deputy Director, Agriculture, Page 4 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined Class-I on 19.05.2010, and he has been discharging his duties as such until this petition is filed before this Court. He has further submitted that the petitioner has good service record and has reached remarkable achievements and now the petitioner has been wrongfully excluded from selection and denied appointment by direct selection on the post of Joint Director of Agriculture, Class-I. Hence this petition has been filed. 4.2 He has further submitted that pursuant to the advertisement published by the Gujarat Public Service Commission vide Advertisement No.96/2016-17 on 15.11.2016 by which online application was invited for two posts of Joint Director of Agriculture in the Gujarat Agriculture Service, Class-I under the Agriculture and Co-operation Department. The petitioner has applied for the same. He has further submitted that the respondents held O.M.R./M.C.Q. based preliminary test/competitive test of 300 marks on 05.03.2017. The petitioner has appeared at the said written test. He has further submitted that thereafter, the respondents declared the provisional result list of eligible candidates for scrutiny 21.06.2017 and issued letter dated 28.06.2017 to the petitioner to submit Page 5 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined the relevant documents by 04.07.2017. Thereafter, the petitioner was called for oral interview on 07.12.2017. The petitioner appeared at the said oral interview and performed extremely well. The petitioner was confident for his selection as his performance in interview was very good. He has further submitted that the petitioner was shocked and surprised with the final result dated 08.12.2017 published by the GPSC, wherein only one candidate Mr. Rajendrasinh Pratapsinh Rajput has been selected, though the notified vacancies in the advertisement were two. He has further submitted that the petitioner has been declared unsuccessful though he has obtained 49.72 total weighted marks out of 100 marks, which is the highest amongst all the remaining candidates, and which is required to be rounded off to 50 marks.
4.3 He has further submitted that there are five questions being the question Nos.56, 136, 138, 142 and 278 of "A" series Question Booklet and the answers of which are debatable and doubtful. He has further submitted that since the advertisement is notified for two posts but only one candidate has been selected and, Page 6 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined therefore, the petitioner is the next highest meritorious candidate, his name is required to be included in the selection list and he is required to be given the appointment. He has further submitted that the petitioner is having very long and sound experience of Agriculture Department itself of more than 21 years at various posts.
4.4 He has further submitted in support of the submission regarding rounding of the marks and also regarding the contention that marks of viva-voce, which should not be the higher percentage as such is fixed in the present case.
4.5 In this respect, he has referred to the judgment of the Hon'ble Apex Court in the case of Ashok Kumar Yadav And Ors. vs State Of Haryana And Ors. reported in AIR 1987 SC 454, paragraph 29 is relevant, and more particularly referred headnote (i) and has submitted that it should not be more than 12.2% in case of candidates belonging to general category. He has further submitted that merely the petitioner has participated in the recruitment process but later on challenging selection Page 7 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined process on the ground that minimum marks should not be prescribe for viva voce/interview and, therefore, he has submitted that the question of estoppel, acquiescence and waiver does not arise.
4.6 He has also relied on the judgment of the Hon'ble Apex Court in the cases of (i) Ramesh Kumar vs. High Court of Delhi and Another reported in (2010) 3 SCC 104 (ii) D.V. Bakshi and Others vs. Union of India and Others reported in AIR 1993 SC 2374, whereby the Hon'ble Apex Court has considered the issue regarding nepotism and favouritism as well as prescribing 50% marks for passing oral test, and (iii) Dr. (Major) Meeta Sahai vs. State of Bihar and Others reported in (2019) 20 SCC 17, more particularly, paragraph 17 is relevant, whereby the Hon'ble Apex Court has observed in that judgment that the appellant is not challenging selection process but questioning respondents interpretation for merit determination and, therefore, he has submitted that since there is certain illegality committed by the respondents, the petitioner is otherwise meritorious not appointed and, hence, on the several grounds, the present petition is required to be allowed by granting Page 8 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined the prayers prayed in the present petition. 5.1 Per contra, Mr. Premal Joshi, learned advocate for the respondent No.3 has drawn my attention towards the prayers prayed in the present petition as well as towards the documents, which are produced regarding various events and instances. He has submitted that during 15.11.2016 to 30.11.2016, the Commission published an advertisement No.96/2016-17 for inviting on-line applications between 15.11.2016 to 30.11.2016 for the post of Joint Director of Agriculture, Class-I. The total number of vacancies was 2 i.e. one for unreserved category. Out of 2 posts 1 post is for the unreserved (woman) category. The preliminary test was conducted on 05.03.2017, the provisional answer key was published on 14.03.2017 and objection of the said answer key was invited from the candidates up to 21.03.2017. He has further submitted that on 10.05.2017, the GPSC received written representation from some candidates including the present petitioner. After receipt of the representations from the candidates, GPSC forwarded all the representations for the expert opinion whether the objection raised by the candidates are genuine or not. Page 9 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025
NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined After receipt of the opinion from the experts, the final answer key was published on 10.05.2017. On 29.05.2017, the the final answer key was revised and published after following the due procedure. On 21.06.2017, the commission published a list of candidates for scrutiny of documents. After scrutiny of documents as per the norms, against 2 vacancies, total 12 candidates who are in order of merit, were declared eligible for interview and the result of eligible candidates for interview was published by GPSC on 10.11.2017. The interviews scheduled for the said post on 07.12.2017 and on 08.12.2017, the final result of interview was published and on 16.12.2017, recommendation sent to the concerned department of the government by Commission. 5.2 He has submitted that the petitioner applied for the said post in the General category and appeared in the preliminary test held by GPSC and the petitioner found his place in the list of eligible candidates for scrutiny of documents and accordingly the petitioner submitted relevant documents in prescribed time limit and after scrutiny of application the petitioner was called for interview and in the final result, the qualifying standard Page 10 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined decided by the Commission for the unreserved category was 50 marks and the petitioner got only 49.72 marks that is why he is not recommended for the said post and, therefore, he has submitted that there is no guideline or rule permitting the principle of rounding off marks in order to qualify for appointment and the petitioner had raised objections regarding provisional answer key for question Nos.133, 135, 142 and 276 and suggested answers. However, in the present petition, he has raised disputes to the answers of question No.56, 136, 138, 142 and 278 pertaining to series "A" Question Booklet and now, the petitioner is stopped from making any grievance with regard to final answer key which was published on 10.05.2017, and after that, revised final answer key was published on 29.05.2017. The petitioner appeared in the interview held on 07.12.2017 and declared unsuccessful candidate.
5.3 He has further submitted that there is a gap of almost 7 months between 29.05.2017, i.e., date of publication of final answer key and 08.12.2017 i.e. the date on which the final result was declared. Thus, it appears that only when the petitioner found himself to Page 11 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined be unsuccessful, he challenged the final answer key dated 29.05.2017. He has relied upon Rules 4 and 5 of the Gujarat Public Service Commission Rules, 1962, which is adopted by GPSC on 07.07.1962. Furthermore, he has submitted that the board members were allotted the board everyday on the basis of draw system. The draw was carried out before few minutes of commencement of interview. The candidates were also allotted to the board for interview on the basis of the draw system. The sanctity of the process was maintained not only in respect of absence of knowledge of marks held by the interviewees in written examination, but it was never certain as to who would be the candidates to be interviewed by particular board and as per the rules, selection committees constituted to take interview for different posts for direct selection. During the interview each member of selection committee assess the performance of the candidates by putting questions in respect of the subject relating to the post in question, general knowledge and awareness. He has further submitted that the general ability of the candidate in respect of presence of mind, ability to present his viewpoint, capacity to analysis the issues, firmness in Page 12 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined framing sound opinion, quick and sound decision, etc. is assessed. The general overall personality of the candidate to meet the requirement of the post for which the interview is conducted is assessed to make assessment commission relies upon the performance of the candidate during personal interview. After the personal interview of the candidate, the chairman and members of the selection committee deliberated themselves and decided the marks to be assigned to the candidate generally by process of consensus. There is no practice to allot marks under different heads and marks are allotted in a single lot by the commission by consensus amongst members of selection committee, such number of marks is recorded by the Chairman on behalf of the selection committee in the tabular statement furnished to them. Thereafter, the Commission made the final selection of candidates as per 50% weightage of the marks obtained from 300 marks of the preliminary test and 50 percentages weighted of marks in respect of the marks obtained from the interview. Hence, in view of this, he has submitted that present petition is required to be dismissed. 5.4 Mr. Premal Joshi, learned advocate for the Page 13 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined respondent No.3 has relied upon the decision of the Hon'ble Apex Court in the cases of (i) West Bengal Joint Entrance Examination Board and Others vs. Sarit Chakraborty and Other reported in (2015) 13 SCC 668, more particularly, paragraphs 11 and 12 are relevant, and has submitted that rounding off marks is not permissible if Rule does not provide to do so and here in the present case, GPSC has no Rule to do so, (ii) Union of India and Others vs. S. Vinodh Kumar and Others reported in (2007) 8 SCC 100, more particularly, paragraphs 10 and 11 are relevant and has submitted that power of the employer to fix the cut off mark is neither denied nor disputed and if the cut off marks was fixed on rational basis, no exception that too can be taken, (iii) Municipal Corporation of Delhi vs. Surendra Singh and Others reported in (2019) 8 SCC 67, more particularly, 17 to 19 are relevant and has referred headnote A, and has submitted that in the recruitment process, bar of estoppel and principle of approbate and reprobate will also apply and has contended that that selection process cannot be challenged after participation therein after its completion upon failure to get selected. Page 14 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025
NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined 5.5 She has lastly contended that the present petition has been filed by the petitioner after much delay that means from the publication of result dated 08.12.2017 till the petition is preferred on 16.03.2018 and, therefore, he has prayed to dismiss the present petition.
6. Ms. Surbhi Bhati, learned Assistant Government Pleader for the respondent Nos.1 and 2 - State has supported the submissions made at the bar by learned advocate for the respondent No.3 and has contended that mere inclusion of name of a candidate in the selection list does not confer on such candidate any vested right to get an order of appointment. She has relied upon the judgment of the Hon'ble Apex Court in the cases of (i) Punjab State Electricity Board, Patiala vs. Malkiat Singh reported in (2005) 9 SCC 22, more particularly, paragraph 4 is relevant, (iii) Commissioner of Police and Another vs. Umesh Kumar rendered in Civil Appeal No.3334 of 2020 (Arising out of Special Leave Petition (C) No.3335 of 2019, more particularly, paragraphs 13, 14 and 17 are relevant, whereby the Hon'ble Apex Court has considered the scope of writ of mandamus and the Court has to examine whether the petitioners have Page 15 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined vested right of appointment. It is also held that the respondents have participated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks regarding the cut off for the OBC category to which they belong and has submitted that thereafter, the Hon'ble Apex Court has not considered the case of the concerned candidate. Lastly, she has submitted that during the pendency of this petition, the second post of Joint Director of Agriculture has also been filled up after following necessary process and the appointment of that candidate namely Gauravi Sashikantbhai Dave has been made vide order dated 13.10.2022 and, therefore, she has submitted that no relief can be granted to the present petitioner in the facts and circumstances of the present case. Hence, she has prayed to dismiss the present petition.
7.1 I have considered the rival submissions made at the bar by the respective parties. Prima facie, it transpires that the petitioner has obtained 49.72% marks out of total 100% marks. Looking to the advertisement published by the Gujarat Public Service Commission vide Page 16 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined Advertisement No.96/2016-17 on 15.11.2016, it transpires that there is minimum requirement of 50% marks. It also transpires that the present petition is filed after much delay and there is gap of almost seven months between date of publication of final answer key i.e. 29.05.2017 and 08.12.2018, the date on which the final result was declared. Therefore, it transpires that when the petitioner found himself to be unsuccessful, the challenge of the final answer key dated 29.05.2017 was not made.
7.2 It is relevant to refer the Rules 4 and 5 of the Gujarat Public Service Commission Rules, 1962, which is adopted by GPSC on 07.07.1962, which reads as under:
"Rule 4 (1) When recruitment to a service or post is to be made by nomination by selection, the commission will advise the government to the framing of recruitment rules prescribing the qualifications of candidates and the conditions pertaining to such service or post.
(2) On receipt of requisition from the government for selecting the candidates for nomination, the commission will
(i) Publish advertisements in the Gazettte and in suitable Page 17 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined newspapers and invite applications from prospective candidates mentioning the conditions of service, nature of competition, number of vacancies, manner of submission of application and other relevant material;
(ii) Consider all applications received and interview such candidates as it considers most suitable for appointments;
and (iii) Forward to the government Particulars regarding candidates arranged in order of preference not exceeding the number of vacancies, who, in the opener of the commission, are most suitable for appointment.
Rule 5(i) the Commission shall innovate such representative of the government as may be nominated by the government to be present at the interviews referred to in rule 3 (2) (iii) and 4 (2) (ii) and the representative so present may take part in the deliberations of the commission but shall not be entitled"
7.3 It transpires from the procedure indicated in the affidavit-in-reply that sanctity of the process was maintained not only in respect of absence of knowledge of marks held by the interviewees in written examination, but it was never certain as to who would be the candidates to be interviewed by the particular board. It also transpires that procedure adopted by the board has been upheld by this Hon'ble Court in the case Page 18 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined of Anil Kumar Shankarlal Joshi vs. State of Gujarat reported in 1991 (2) GLH 633. It also transpires that the Commission has made the final selection of candidates as per 50% weightage of the marks obtained from 300 marks of the preliminary test and 50% weightage of marks in respect of the marks obtained from the interview. It also transpires that before conducting the viva voce test, all the candidates were aware about the minimum prescription of the marks that they were required to be obtained to be qualified and, thereafter, the petitioner has participated in the process at every stage without raising any grievance at the relevant point of time.
7.4 Considering the contentions raised by learned advocate for the petitioner, who has raised contentions in three folds; first, that the weightage of the marks in viva voce test should not be to the extent of 50% and second, that the marks of five questions, which are mentioned in the present petition, are required to be reconsidered and third, that merely petitioner has participated in the selection process, does not stop him from challenging the illegality committed during that Page 19 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined process.
7.5.1 It is relevant to refer the judgment of the Hon'ble Apex Court cited at the bar by learned advocate for the petitioner in the case of Ashok Kumar Yadav And Others (supra), more particularly, paragraph 29 is relevant, as under:
"29. Now if the allocation of such a high percentage of marks as 33.3 in case of ex-service officers and 22.2 in case of other candidates, for the viva voce test is excessive, as held by us, what should be the proper percentage of marks to be allocated for the viva voce test in both these cases. So far as candidates in the general category are concerned we think that it would be prudent and safe to follow the percentage adopted by the Union Public Service Commission in case of selections to the Indian Administrative Service and other allied services. The percentage of marks allocated for the viva voce test by the Union Public Service Commission in case of selections to the Indian Administrative Services and other allied service is 12.2. and that has been found to be fair and just, as striking a proper balance between the written examination and the viva voce test. We would therefore direct that hereafter in case of selections to be made to the Haryana Civil Services (Executive Branch) and other allied services, where the competitive examination consists of a written examination Page 20 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined followed by a viva voce test, the marks allocated for the viva voce test shall not exceed 12.2 per cent of the total marks taken into account for the purpose of selection. We would suggest that this percentage should also be adopted by the Public Service Commissions is other States, because it is desirable that there should be uniformity in the selection process throughout the country and the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service Commissions to adopt and follow. The percentage of marks allocated for the viva voce test case of ex-service officers may, for reasons we have already discussed, be somewhat higher than the percentage for the candidates belonging to the general category. We would therefore direct that in case of ex- service officers, having regard to the fact that they would ordinarily be middle aged persons with personalities fully developed the percentage of marks allocated for the viva voce test may be 25. Whatever selections are made by the Haryana Public Service Commission in the future shall be on the basis that the marks allocated for the viva voce test shall not exceed 12.2 per cent in case of candidates belonging to the general category and 25 per cent in case of ex-service officers."
7.5.2 It is also relevant to refer the another judgment of the Hon'ble Apex Court cited at the bar by learned advocate for the petitioner in the case of Ramesh Kumar (supra), paragraph 18 is relevant, as under: Page 21 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025
NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined "18. These cases are squarely covered by the judgment of this Court in Hemani Malhotra v. High Court of Delhi AIR 2008 SC 2103, wherein it has been held that it was not permissible for the High Court to change the criteria of selection in the midst of selection process. This Court in All India Judges' case (supra) had accepted Justice Shetty Commission's Report in this respect i.e. that there should be no requirement of securing the minimum marks in interview, thus, this ought to have been given effect to. The Court had issued directions to offer the appointment to candidates who had secured the requisite marks in aggregate in the written examination as well as in interview, ignoring the requirement of securing minimum marks in interview. In pursuance of those directions, the Delhi High Court offered the appointment to such candidates. Selection to the post involved herein has not been completed in any subsequent years to the selection process under challenge. Therefore, in the instant case, in absence of any statutory requirement of securing minimum marks in interview, the High Court ought to have followed the same principle. In such a fact-situation, the question of acquiescence would not arise."
7.5.3 It is also relevant to refer the another judgment of the Hon'ble Apex Court cited at the bar by learned advocate for the petitioner in the case of Dr. (Major) Meeta Sahai (supra), paragraphs 15 to 19 are Page 22 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined relevant, as under:
"Preliminary Issues:-
15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for respondents relied upon a catena of decisions of this Court to substantiate his objection.
16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgements including Manish Kumar Shahi v. State of Bihar4, observing as follows:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Page 23 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."5 The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
18. The question of permissibility of giving weightage for 'work experience' in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non-Page 24 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025
NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not sorich states like Bihar have the requisite exposure to challenges faced in those regions.
19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents' interpretation of 'work experience' as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not."
7.5.4 It is also relevant to refer the another judgment of the Hon'ble Apex Court cited at the bar by learned advocate for the petitioner in the case of D.V. Bakshi and Others (supra,) paragraphs 6 to 9 are relevant, as under:
"6. A feeble attempt was made to contend that Regulations Page 25 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined
8 & 9 were bad in law, in that, they afford an opportunity to the authorities to eliminate certain candidates with a view to accommodating their favourites. This submission is based on the ratio of the decision in Ajay Hasia (supra) and Ashok Kumar Yadav and Ors. v. State of Haryana and Ors, wherein this Court struck down the rule prescribing the high percentage of marks for oral test as offending Article 14 of the Contitution. It is indeed true that the examination, in the instant case, comprises a written paper of 100 marks and an oral test of 100 marks, i.e., 200 marks in all. The passing marks for each test is 50. Thus the oral test of 100 marks out of the aggregate of 200 marks works out to 50 percent. Counsel for the petitioners, therefore, contended that the marks reserved for clearing the oral test were excessive thereby affording the examiners an opportunity to arbitrarily eliminate candidates and accommodate their favourites. Now licence to act as a Custom House Agent in a custom station requires special knowledge relating to the clearance of conveyance and goods through customs. This becomes immediately clear if we peruse the subjects enumerated in Regulation 9(3), for the examination. The candidate is expected not only to have knowledge regarding the actual working at a custom station but also in regard to the provisions in the Customs Act and allied statutes mentioned in Clause (o) of the said Regulation. While the written test may ascertain the candidate's knowledge in regard to the laws, both substantive and procedural, the oral test may help the examiner to assess the candidate's method of working at the custom station. It must be realised that the agents Page 26 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined have to deal with large sums of money and valuable articles. That is why one of the conditions required to be satisfied is in regard to the financial viability of the applicant. This is clear from Regulations 6(b) of the Regulations. Besides as pointed out earlier, before a candidate can apply for the grant of a licence, he must satisfy the Collector that he has experience of work relating to clearance of goods through the customs for a period of not less than one year which means that he must have worked as an apprentice to a licensed agent. The extent of knowledge which he must possess to qualify for the licence can be gathered from the various subjects enumerated in Sub-clauses (a) to (p) of Clause (3) of Regulations 9. Regulation 10 which relates to grant of regular licence stipulates that temporary licence holder must not only have qualified in the examination referred to in Regulation 9 but his performance must also be found to be satisfactory with reference, inter alia, to (a) quantity of value of cargo cleared by such licence holder conforming to norms as prescribed by the Collector and (b) absence of instances of delay either in the clearance of goods or in the payment of duty for any reason attributable to such licence holder or any complaint of misconduct including non-compliance of any of the obligations specified in Regulation 14. It would, therefore, appear that the performance of each applicant prior to the grant of the temporary licence and during the period he works as a temporary licence holder are subject matter of scrutiny and this can only be done effectively at the oral interview. The importance of the oral interview lies in the fact that the examiners have an opportunity to Page 27 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined assess his performance as a temporary licence holder and also seek his clarification in regard to certain matter who might have come to their knowledge during the period he worked as a temporary licence holder. The Regulations have, therefore, taken care to ensure that he has experience of at least one year as an apprentice to an agent before he applies for the grant of licence. In order to assess his work he is given a temporary licence before he qualifies by clearing the prescribed examination. The authorities have the opportunity of assessing his knowledge regarding the laws and procedure through the written examination. It must be remembered that the custom station is a place of work. Observance of Regulations is absolutely essential as movement of very valuable goods takes place and only sufficiently experienced hands can be permitted to act as agents. He must satisfy the authorities that he has adequate knowledge regarding the laws and the procedure connected with the clearance of goods and that he actually is in a position to handle the work from the moment he is licensed. The assessment of his work during the period he holds the licence is, therefore, of great relevance and that can be done at the oral test only. The assessment has to be made on the basis of his performance as a temporary licence holder and his capacity to handle goods as an agent at the custom station. The curriculum for the examination is, therefore, extensive, vide Regulation 9(3), to test his knowledge regarding the laws relating to the arrival, entry and clearance of goods at the custom station and his actual handling during the period he held the temporary licence. That is why Regulation 10 also provides that besides Page 28 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined passing the examination his work must be found to be satisfactory with reference to the quantity or valuable of cargo cleared, fulfillment of the prescribed norms, absence of delay in the clearance of goods and the payment of duty and avoidance of complaints in regard to misconduct including non-compliance of the obligations set out in Regulation 14. The factors to be assessed at the interview relate to his temperament, managerial ability, communication ability, interpersonal skills, ability to interact with colleagues and officials, general awareness in regard to his functional responsibilities and professional norms as well as norms of behaviour, etc. Therefore, the area of the enquiry in regard to actual working is equally wide and important and there is justification for an oral test prescribing 100 marks with 50 per cent as passing marks. This is so because the authorities have to assess the, candidate's personality, his temperament and his capacity to interact with others concerned with the movement of highly valuable goods, etc. In Lila Dhar v. State of Rajasthan and Ors. , this Court while highlighting the need for an interview test in certain selections clarified that the test which may be valid for admission to medical colleges may, not hold good where it concerns entry into public services. The test evolved in the case of Ajay Hasia & Ashok Kumar Yadav, (supra) cannot, therefore, apply with equal force in the matter of grant of licence as a Custom House Agent. This has been further clarified in a recent decision in Indian Airlines Corporation v. Capt. K.C. Shukla and Ors. [1993 1 SCC 17]. In that case this Court after referring to the decisions in Ajay Hasia, Ashok Kumar Yadav and Lila Page 29 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined Dliai, (supra) observed that the distinction appears to have been drawn in interviews held for competitive examination or admission to educational institutions and selection for higher posts. In the case of educational institutions the distinction has relevance for the reason that the candidates are young and their personality has yet to develop and, therefore, greater weight has to be given to their performance at the written examination rather at the oral examination. It is, therefore, clear that no hard and fast rule can be laid down in this behalf as much would depend on the nature of performance expected for the responsibility to be handled by a candidate after his selection and entry into the establishment. The method of evaluation would, therefore, vary and cannot be a matter of any strait-jacket formula. The weight to be given to the performance at the interview would depend on the nature of duties, responsibilities and functions to be handled after selection. The duties, responsibilities and functions of a Customs House Agent are very special demanding not only a high degree of probity and integrity but also intellectual skills, adaptability, judgment and capacity to take prompt decisions in conformity with the law, rules and regulations. The selection is, therefore, done through those conversant with the working of custom stations and the nature of an agent's job. We are, therefore, of the opinion that the submission based on the decisions in Ajay Hasia & Ashok Kumar Yadav, (supra) cannot be accepted. It may also be mentioned that before the High Court the validity of Regulation 9 was not challenged. The High Court further observed as under:
Page 30 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025
NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined Learned advocates who appeared before us on behalf of the petitioners cited certain judgments of the Supreme Court in order to suggest that undue importance was being given to the oral examination and/or that allocation of 100 marks for an oral examination is not proper. The petitioners have not raised any legal contentions or made submission in this connection in those petitions.
It would, therefore, appear that the contention was not seriously urged before the High Court nor was it seriously pressed before us but we have thought it necessary to deal with the same as certain writ petitions have been filed challenging the validity of the Regulations on this said count. We, therefore, thought it proper to examine the same and put a lid thereon.
7. The submission that the provision for clearing the oral test with atleast 50 per cent marks is susceptible to misuse, namely, to eliminate some and to accommodate others needs closer scrutiny. The submission is general in nature and would be true in all such cases where passing of an oral test is a 'must' to qualify for entry. The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the overall qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of Page 31 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined the candidate. As observed in Lila Dhar's, case (supra) a written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet"
for a proper selection. If an oral test is, therefore, a 'must' as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the marks assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate. In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a 'must' or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records or the oral test. But if the allegation is supported by some dependenable proof, the Court will satisfy itself whether or not the charge is well-founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the Page 32 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be. In the present case, however, the allegation is of a general nature and is not supported by even light proof to infer, even prima facie, that the result of the oral test was tainted because of bias. We, therefore, do not see any merit in the contention raised by the petitioners.
8. The petitioners fall in two groups, namely, (i) those who passed the written examination at the third opportunity but failed in the only available oral test and (ii) those who passed the written test at the second opportunity but failed in the oral test at both the available opportunities. Candidates belonging to both the groups, therefore, had as many as four opportunities to clear the examination. Certain candidates failed to avail of the opportunity and they must thank themselves for the same. Those who failed to avail of the opportunity and those who were unsuccessful at the written test after availing of the opportunity fall in the same category because once the opportunity is available it is for the candidate to avail of it and if he fails to avail of it he cannot be heard to say that he did not have that opportunity. It will, therefore, be seen that all the petitioners in the present group of cases had four opportunities to clear the written as well as the oral test but they failed to do so. In the circumstances, we think the view taken by the High Court is unassailable. In this connection, the High Court's observation is as under:Page 33 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025
NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined All the other petitioners and persons working under them had the opportunity of appearing in written and oral examinations thrice during the period of subsistence of their temporary licences. They have, however, not cleared the oral examination, although all have cleared their written examination - either at first, second or third attempt.
This will show that the petitioners had the required opportunities to pass the examination written as well as oral but they failed to do so in the available opportunities.
9. A fervent appeal was made by the learned Counsel for the petitioners that having regard to the fact that all the petitioners have passed the written examination and that some of them had only one opportunity to appear at the oral examination since they passed the written examination at the third attempt, one further chance to appear at the oral examination should be accorded to them as was done in the past under the circular dated May 19, 1988. The would be a matter on which the concerned authorities would have to take a decision if the circumstances so permit but it would not be proper for this Court to issue a mandate once it is found as a fact that the petitioners had the requisite opportunities under the regulations for clearing the written as well as oral tests. We may add by way of caution and to avoid any litigation in future if the authorities decide to give one further opportunity to the petitioners to clear the oral test it will be by way of grace Page 34 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined only and will not confer any right whatsoever on the petitioners and if the authorities insist on any undertaking to be filed by the candidates permitted to avail of that extra chance in the present proceedings that they will accept the result as final and conclusive and will not make it a ground for further litigation, they will be well within their rights to so insist. If such undertaking are filed in the present proceedings, the Registry will accept the same."
7.6 There is no dispute about the proposition of law laid down by the Hon'ble Apex Court in the abovementioned judgments, which is canvassed by learned advocate for the petitioner.
7.7.1 Furthermore, it is also relevant to refer the judgment of the Hon'ble Apex Court cited at the bar by Mr. Premal Joshi, learned advocate appearing for the respondent No.3 in the case of West Bengal Joint Entrance Examination Board and Others (supra), more particularly, paragraphs 11 and 12 are relevant, as under:
"11. In the instant case, we have already observed that the guidelines that are framed by the Board are in consonance with the regulations framed and notified by the AICTE. The AICTE, in its regulations as noticed hereinabove, has specifically pointed out that the minimum marks that a Page 35 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined candidate should secure, in order to be considered as eligible to appear for counseling for the purpose of admission in an Engineering college, in Physics, Chemistry and Mathematics, in aggregate, is 45% marks only. Since the guidelines that are framed by the Board are in consonance with the aforesaid AICTE regulations, in our considered opinion, the learned Judges of the High Court were not justified in ignoring the guidelines and directing the Board to round off the marks from 44.6% to 45%.
12. There are express guidelines issued by the Board for governing the process of admission in Engineering Colleges. There is no guideline for permitting the principle of rounding-off of marks in order to be made eligible to appear for counseling. In the ab- sence of such a guideline in either the Brochure issued by the Board or in the AICTE Regulations, we are of the considered opin- ion that the rounding-off of marks could not be permissible. The High Court ought not to have exercised such discretion in light of the express and clear guidelines to the contrary."
7.7.2 It is also relevant to refer another judgment of the Hon'ble Apex Court cited at the bar by learned advocate appearing for the respondent No.3 in the case of Union of India and Others (supra), more particularly, paragraphs 10 and 11 are relevant, as under:
"10. It may be true that the cut-off marks at 71 had been fixed for unreserved candidates on the basis that marks Page 36 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined obtained by the last candidate, i.e. 240th candidate, calculated at 50% of the 480 candidates, but concededly 56 marks were fixed for Other Backward Classes candidates and 20 marks were fixed for Scheduled Caste and Scheduled Tribe candidates. Only because the cut-off marks at 71 had been fixed on the basis of the aforementioned criteria, the same by itself, in our opinion, would not mean that no cut- off mark had been fixed. The fact that the Railway Administration intended to fix the cut-off mark for the purpose of filling up the vacancies in respect of the general category as also reserved category candidates is evident from the fact that different cut-off marks were fixed for different categories of candidates. We are, therefore, unable to accept the submission of the learned counsel that the cut-off marks fixed was wholly arbitrary so as to offend the principles of equality enshrined under Article 14 of the Constitution of India. The power of the employer to fix the cut-off marks is neither denied nor disputed. If the cut-off mark was fixed on a rational basis, no exception thereto can be taken.
11. Respondents herein had approached the Tribunal in the year 2000. The Tribunal directed the appellants to consider this case of lowering of the cut-off marks. An inference, therefore, can be drawn from the aforementioned fact that the main prayer of the respondents was that the cut- off marks should be lowered. Appellants admittedly did not agree to the said proposal. The action of the appellants impugned before the Tribunal must, therefore, be considered from the view point as to whether it had the requisite jurisdiction to do so. The Tribunal upheld the contention of Page 37 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined the appellant. Once it is held that the appellants had the requisite jurisdiction to fix the cut-off marks, the necessary corollary thereof would be that it could not be directed to lower the same. It is trite that it is for the employer or the expert body to determine the cut-off marks. The court while exercising its power of judicial review would not ordinarily intermeddle therewith. The jurisdiction of the court, in this behalf, is limited. The cut-off marks fixed will depend upon the importance of the subject for the post in question. It is permissible to fix different cut-off marks for different categories of candidates. [See Banking Service Recruitment Board, Madras v. V. Ramalingam and Others (1998) 8 SCC 523]."
7.7.3 It is also relevant to refer another judgment of the Hon'ble Apex Court cited at the bar by learned advocate appearing for the respondent No.3 in the case of Municipal Corporation of Delhi (supra), more particularly, 17 to 19 are relevant, as under:
"16. The position noticed above would indicate that the entire grievance with which the petitioners had approached the High Court was on claiming to be aggrieved by Clause Nos.25 and 26 contained in the Advertisement No.1/2006 issued for recruitment of Assistant Teacher (Primary) for the benefit of the appellant MCD. In order to appreciate the same in its correct perspective, it would be appropriate to take note of the impugned Clause Nos.25 and 26 which Page 38 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined read as hereunder:
"25. The Board has full discretion to fix minimum qualifying marks for selection for each category i.e. SC/ST etc. of post in order to achieve qualitative selection and to pick up the best talent available.
26. The marks obtained by the candidate in written examination will not be disclosed in any case."
18. From a perusal of the said Clause it is noticed that though under the very Clause there is no cutoff marks specified, Clause 25 would, however, provide the full discretion to the DSSSB to fix the minimum qualifying marks for selection. In the instant case, keeping in view that the recruitment was for the post of Assistant Teacher (Primary) and also taking note of the orders passed by the High Court in an earlier petition requiring the maintenance of minimum standards, the DSSSB while preparing the select list had stopped the selection at a point which was indicated as the cutoff percentage. In a circumstance where Clause 25 was depicted in the Advertisement No.1/2006, when the private respondents herein and the other petitioners before the High Court were responding to the said Advertisement, if at all they had a grievance that the Clause is arbitrary and might affect their right ultimately since no minimum marks that is to be obtained has been indicated therein, they were required to assail the same at that stage. On the other hand, despite being aware of the Clause providing discretion to DSSSB to fix the minimum qualifying marks, they have participated in the selection Page 39 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined process by appearing for the qualifying examination without raising any protest. In that circumstance, the principle of approbate and reprobate would apply and the private respondents herein or any other candidate who participated in the process cannot be heard to complain in that regard.
19. It is no doubt true that the select list was concluded at the particular cutoff point wherein the last selected candidate under the unreserved category had obtained 89.25 per cent. The said decision had been taken by the DSSSB to ensure the minimum standard of the teachers that would be recruited and the appellant herein being the recruiting agency in any event, did not have objection. In any event, it is not the case of the petitioners that they had obtained higher marks than the candidate who was shown as the last candidate in the merit list. If that was the position and when it is noticed that the appellant and the other writ petitioners had secured lesser percentage of marks than the last candidate included in the merit list, there could not have been any further consideration whatsoever in the course of judicial review. To that extent, the learned Single Judge, from the observations as noticed above has kept in view all aspects of the matter and in that light had arrived at the conclusion that no error was committed either by the DSSSB or the appellant herein."
7.8.1 Furthermore, it is relevant to refer judgment of the Hon'ble Apex Court cited at the bar by Ms. Page 40 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined Surbhi Bhati, learned Assistant Government Pleader for the respondent Nos.1 and 2 - State in the case of Punjab State Electricity Board, Patiala (supra), more particularly, paragraph 4 is relevant, as under:
"4. Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash vs. Union of India [(1991) 3 SCC 47] which reads:-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does Page 41 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha ((1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165), Neelima Shangla v. State of Haryana ((1986) 4 SCC 268 : 1986 SCC (L&S) 759), or Jatendra Kumar v. State of Punjab ((1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899)".
7.8.2 It is also relevant to refer another judgment of the Hon'ble Apex Court cited at the bar by learned Assistant Government Pleader for the respondent Nos.1 and 2 - State in the case of Commissioner of Police and Another vs. Umesh Kumar rendered in Civil Appeal No.3334 of 2020 (Arising out of Special Leave Petition (C) No.3335 of 2019, more particularly, paragraphs 13, 14 and 17 are relevant, as under:
"13 This judgment has adverted to the course which the Page 42 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined recruitment process followed since the publication of an advertisement for selection to the 2013 batch of Constables (Executive) - Male in Delhi Police. The narration of facts demonstrates that a result notifying a list of provisionally selected candidates was initially declared on 13 July 2015 but it was soon found that an error had crept in due to the failure to allocate a bonus mark to every candidate whose height was in excess of 178 centimetres. The allotment of bonus marks was provided in Standing Order No. 212 of 2011, which necessitated a revision of the results. In the revised result, which was declared on 17 July 2015, certain candidates from the original list were ousted while new candidates came in. Both the respondents were part of the list of successful candidates. Yet, there can be no dispute about the factual position that the recruitment process was yet to be concluded. For one thing, the process of verification of character and antecedents and the ascertaining of medical fitness was yet to be carried out. But apart from this, a set of OAs came to be instituted by unsuccessful candidates before the Tribunal highlighting grievances in regard to the manner in which the answer key had been prepared. The authorities agreed before the Tribunal to appoint an Expert Committee. Following the submission of the report of the Expert Committee, the results were revised on 22 February 2016. After a decision was taken by the Competent Authority for revising the result, as many as 123 candidates who had been selected earlier were ousted and 129 new candidates came into the selected list. This process of revising the results was carried out when the recruitment process was Page 43 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined yet to be completed for the candidates selected in the result declared on 17 July 2015. This process of the revision of the result was then unsuccessfully challenged in the first batch of OAs before the Tribunal, and subsequently the writ petitions under Article 226 before the High Court were also dismissed as not pressed. The flip-flops which took place were undoubtedly because of the failure of the authorities to notice initially the norm of allotting 1 bonus mark based on height and due to the failure to prepare a proper answer key. Such irregularities have become a bane of the public recruitment process at various levels resulting in litigation across the country before the Tribunals, the High Courts and ultimately this Court as well. Much of the litigation and delay in carrying out public recruitment would be obviated if those entrusted with the duty to do so carry it out with a sense of diligence and responsibility.
14 The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB vs. Malkiat Singh10, this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held:
"4. ...the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of Page 44 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95] which reads: (SCC pp. 50-51) "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Page 45 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] ." (emphasis supplied)"
17 For the above reasons, we are of the view that the judgements delivered by the Delhi High Court on 6 December 2018 in Writ Petition (C) No. 10143 of 2017 and on 19 December 2018 in Writ Petition (C) No. 13052 of 2018 do not comport with law. The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police. The direction was clearly contrary to law. The respondents have participated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks above the cut-off for the OBC category to which they belong. We accordingly allow the appeals and set aside the judgments of the High Court dated 6 December 2018 in Writ Petition (Civil) No.10143 of 2017 and 19 December 2018 in Writ Petition (Civil) No.13052 of 2018. Both the Writ Petitions shall stand dismissed. There shall, however, be no order as to costs." 7.9 There is no dispute about the proposition of law laid down by the Hon'ble Apex Court in the abovementioned judgments, which is canvassed by learned advocate for the respondents.
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NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined 7.10 Furthermore, in view of this, the contention raised by Mr. K.B. Pujara, learned advocate for the petitioner that since the petitioner has obtained 49.72% marks, it should be rounded off as 50% marks and he should be appointed as Joint Director as second advertised post was vacant at the relevant point of time and he was the higher meritorious candidate amongst remaining candidates as only one candidate was selected by the GPSC, though advertisement was for two posts, one post remained vacant.
Such contention is required to be negatived as in view of the judgment cited at the bar by Mr. Premal Joshi, learned advocate for the respondent No.3 that unless rule of GPSC provides, rounding off of the marks is not permitted.
7.11 Furthermore, another contention raised by learned advocate for the respondents is found attractive that once the selection process is started, the petitioner after participating in selection process and after having been unsuccessful, and thereafter, he cannot challenge Page 47 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined that process unless it is illegal. I found that there is no illegality committed by the respondent No.3, which warrants any interference. The principle of approbate and reprobate is applicable and candidate at the belated stage cannot complain such process merely because the petitioner has failed in securing the minimum to qualify in the merit list. In view of this, it is not fit case to interfere in the said decision of the respondent authority by exercising the powers of judicial review in the matter of selection process by evolving any other criteria different from the criteria adopted by the recruiting agency.
7.12 Furthermore, for the contention raised by learned advocate for the petitioner that still there is one vacant post, and the petitioner though having less than 50% mark, but he is having highest marks amongst the remaining candidates and, therefore, he should be selected for the post. This is also answered by Hon'ble Apex Court in the case of Municipal Corporation of Delhi (supra), whereby the Hon'ble Apex Court has said that it is well established that the recruiting agency cannot be compelled to fill all the posts even if persons of desired Page 48 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined merit are not available. In the present case, it is admitted position that the petitioner is having less than 50% of the marks.
7.13 Furthermore, it is also relevant to note that the petitioner has mentioned five debatable questions in the petition, but those questions are not agitated before the respondent authority and the petitioner has raised objection/grievance of other questions before the respondent authority. He has made some reservation regarding some other five questions than the questions which are mentioned as doubtful questions in the petition, and the Court while considering writ petition cannot interfere with the process by exercising powers of judicial review by giving finding that whether the answers of such questions are proper of not as the Court cannot work as expert body and it is the function of expert body to look into answers of such raised disputed questions, on which the respondent No.3 authority has taken care of such questions at the relevant point of time and, therefore, on that ground, no interference is required to be called for.
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NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined 7.14 Furthermore, it is also required to be noted that though the petitioner has relied on the percentage of viva voce test by referring to the certain judgment, in this respect, it also transpires that thereafter, the Hon'ble Apex Court has also considered this aspect in other judgments and permitted the authorities to fix the weightage of the marks in viva voce test as per requirement.
7.15 Furthermore, one last aspect, which is required to be considered is that while admitting the present petition, no interim relief was granted in favour of the present petition and during the pendency of the present petition, one Mr. Gauravi Sashikantbhai Dave has been appointed for the another vacant post of the Joint Director vide order dated 13.10.2022 by following necessary procedure by the respondent authority and thereafter, appointed by the Government. Therefore, on that count also, no relief can be granted to the present petitioner.
7.16 Otherwise also, the present petition is found meritless on all counts and hence, the present petition is Page 50 of 51 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:36:13 IST 2025 NEUTRAL CITATION C/SCA/4474/2018 JUDGMENT DATED: 04/07/2025 undefined required to be dismissed as the petitioner has filed the present petition after much delay at the belated stage and after participating in all the process and has challenged the same after remaining unsuccessful in securing the minimum required qualify marks for getting selected for the post of the Joint Director and hence, from the materials available on the record, I found that it cannot be said that there is any violation of Articles 14 and 16 of the Constitution of India in the present case. Therefore, I found that no case is made out for judicial review by this Court under Article 226 of the Constitution of India.
8. Accordingly, the present petition is dismissed with no order as to costs. Rule stands discharging.
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