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Barot Vijaykumar Balakrishna & Others Vs. Modh Vinaykumar Dasrathlal & Ors., (2011) 7 SCC 308.

12. In K. Manjusree (supra), when the respondents prescribed the cut off marks for interview after the selection process is completed, in making recruitment for posts of District & Session Judges (Grade-II) which were governed by the Andhra Pradesh State Higher Judicial Service Rules, 1958, which did not prescribe any criterion for selection, the Honble Apex Court observed/held as under:

29.  We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.

10. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or not, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree (Supra) the Court noticed the decisions in (1) P.K.Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision.

16. In Barot Vijay Kumar Balakrishnas case (supra), the rules framed under Article 309 of the Constitution, governing the selection process, for the posts of Assistant Public Prosecutor in the State of Gujrat mandated that there would be minimum qualifying marks each for the written test and the oral interview. In this case, cut off marks for viva voce were not specified in the advertisement. As observed by the Honble Apex Court, in view of that omission, there were only two courses open. One, to carry on with the selection process, and to complete it without fixing any cut off marks for the viva voce, and to prepare the select list on the basis of the aggregate of marks obtained by the candidates in the written test and the viva voce. That would have been clearly wrong, and in violation of the statutory rules governing the selection. The other course was to fix the cut off marks for the viva voce, and to notify the candidates called for interview. This course was adopted by the Commission just two or three days before the interview/viva voce. Having observed that it did not cause any prejudice to the candidates, the Court did not interfere in the selection process.