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(ii) It will also be explained that so far the petitioners are concerned and the last candidate so selected, has secured how much marks in the interview which is said to be of 65 marks.

(iii) The date of start of interview pursuant to the advertisement, will also be Indicated irrespective of the date of interview mentioned as 8.8.1994 in respect to Bio group."

8. Pursuant to the order of this Court dated 15.5.2002, second supplementary counter-affidavit has been filed by the respondents. Learned counsel for the petitioner submits that entire selection is vitiated on account of arbitrariness in the selection process and the discriminatory approach besides non-sticking to the various criteria and the procedure so to be followed as mentioned in the advertisement itself. It is pointed out that earlier the criteria as was mentioned in the advertisement happened to be the interview but thereafter it was declared by the then Chief Minister on 2.9.1992 that procedure for interview will not be adopted and the appointment will be made on the basis of quality point marks and accordingly on 6.11.1992, U. P. Subordinate Educational (Trained Graduate) Service (Ist Amendment) Rules, 1992 was notified whereby necessary amendment was made in Section 15 (2) and Appendix-D was added In the Rules of 1983, which provides for quality point marks. It is further pointed out that although the interview, pursuant to the advertisement dated 23.5.1992 was started on 7.6.1993 but while completing the selection process the authorities have proceeded to give the reservation in accordance with the U. P. Public Services (Reservation for S.C./S.T. and Other Backward Classes) Act, 1994, i.e., U. P. Act No. 4 of 1994, which in fact was made effective with effect from 11.12.1993. Learned counsel submits that Section 15 of the aforesaid Act Itself provided that the Act will not apply to the cases in which selection process has been started before the commencement of the Act and such cases are to be dealt with in accordance with the provisions of law and the Government order as stood before such commencement. Explanation to Section 15 further clarifies that selection process shall be deemed to have been initiated where the selection is to be made on the basis of the written test or Interview as the case may be, has started. Section 15 of the U. P. Act No. 4 of 1994 along with its explanation will be useful to be quoted here :

10. Learned standing counsel in response to the aforesaid submission of the learned counsel for the petitioner submits that the entire selection has taken place In a fair manner and the submission in this respect has absolutely no basis. It is argued that as the interview for the subject in question admittedly started on 8.8.1994 by which date U. P. Act No. 4 of 1994 has already come into effect, the selection was completed in accordance with the reservation policy as provided in the aforesaid Act, thus it cannot be said that reservation so provided in the advertisement has been changed. It is further submitted that the petitioner having participated in the selection process, having been declared unsuccessful and no other candidate having come to the Court challenging the selection process on the ground, it being unfair or on the ground of change in the reservation policy, petitioner is not entitled to be heard. It is further submitted that the members of the Board at the time of the interview after due deliberation adopted a policy decision that lump-sum marks shall be given to the candidates on overall assessment and performance on the basis of academic record and the personality test and, therefore, candidates were given lump-sum marks on basis of academic record and personality test. It is submitted that the marks so given to the candidates in the selection cannot be said to be vitiated in any manner. Lastly it has been argued that the selection which is under challenge was held under the provisions of the U. P. Subordinate Services Selection Commission Act, 1988 (U. P. Act No. 7 of 1988) which was subsequently repealed by Act No. 5 of 1998 and, therefore, selection not being under the provisions of U. P. Subordinate Educational (Trained Graduate) Service (First Amendment) Rules, ]992, large number of selectees, who have joined long ago, not being parties in this petition and even proper authority of the State Government not being party before this Court, completion of the selection process cannot be undone. In support, of the submission that petitioner having participated in the selection process, being unsuccessful is not entitled to challenge the selection, reliance has been placed on a decision given by the Apex Court In Madan Lal and Ors. v. State of J.K. and Ors., (1995) 3 SCC 486. To support the submission thai selection made exclusively on the basis of the interview, preceded by scrutiny of academic qualification has been held not to be arbitrary and illegal, reliance has been placed on a decision given by the Apex Court in Kiran Gupta and Ors. v. State of U. P. and Ors., 2000 (4) AWC 3223 (SC) : (2000) 7 SCC 719.

11. In view of the aforesaid submission as has come from both sides, pleadings as has been set forth in petition, counter-affidavit, supple mentary counter-affidavits, rejoinder-affidavits besides written arguments as has been filed from both sides with the permission of the Court, have been examined.

12. On a consideration of the submissions, two questions arise for consideration, i.e., (i) whether the selection process is vitiated on account of completing the selection in the light of the changed reservation policy and on account of arbitrary and unfair approach in awarding marks and completing the selection without adhering to any criteria whatsoever, (ii) if so, then to what relief the petitioner is entitled?

18. In view of the aforesaid, it is clear that at one stage the respondents have stated that the candidates were short listed according to the academic records but at the same time, it is stated that idea of short listing was abandoned. It is also clear that respondents have stated that the criteria for awarding marks in interview was based on academic records of the candidate and also on his performance in interview. Out of 100 marks, 35 marks were allocated for the academic achievement and 65 marks on the performance in the Interview and the final selection was based on total of both in order of merit. In view of the facts so stated by the respondents in the supplementary counter-affidavit, it is clear that no separate marks have been awarded to any candidate on his performance in the interview, i.e., on the personality test and it is just after deducting marks so received on the academic records, out of total marks so given to the candidate, the marks which will come out is to be accepted/treated to be the marks so given on the personality test. This appears to be clearly arbitrary on the part of the respondents inasmuch as unless separate specific marks is given to a particular candidate after making the assessment at the time of the interview, it will be wholly unreasonable to accept that after deducting the marks based on their academic record, the remaining marks so remain with the candidate has to be inferred to have been received in the personality test. The submission of the learned standing counsel that the members after considering the academic records have given a lump-sum marks on completion of the interview to a particular candidate without bifurcating the same, that what marks have been received in the personality test speaks about arbitrariness in the matter. As and when, bifurcation is there, then the members of the Board will have to assign separate marks on every count and, therefore, it appears to be a very novel method and process which appears to have been adopted by the members of the selecting body, It appears that the respondents have not been able to demonstrate and justify the final selection in accordance with the merit of the selected candidates on the basis of the separate marks which a particular candidate has received on two separate counts and, therefore, by changing stand from here to there, by stating that candidates were short listed and then by saying that the idea of short listing was abandoned and although separate marks were earmarked for academic record and the personality test but a policy was adopted of giving lump-sum marks on overall assessment, the selection has been tried to be justified. This Court is of the opinion that it was obligatory on the part of the members of the Interview Board to have awarded specific marks immediately on the assessment of a particular candidate and they have no business and concern of clubbing the marks based on academic records and just to place before this Court that a lump-sum mark was given. Besides aforesaid, it also appears that authorities have acted in an unfair manner by allowing full marks to the last selected candidate for his M.A. History subject treating it to be at par to the petitioner who has completed his M.Sc. whereas the selection happens to be for the assistant teacher in Biology. The certificate of N.C.C. which is said to be the basis for giving 3 marks to the last selected candidate, has been also prima facie demonstrated to be not a genuine document as completion of 'A' and 'B' certificate appears to have been issued in one document in which it is mentioned that 'B' certificate has been completed in the year 1989 and 'A' has been completed in the year 1987 which is apparently doubtful. The date of issuance of the said certificate is also totally blurred. For all these reasons, it is clear that the respondents have not proceeded to complete selection for the post in question in a fair manner, by adhering to a valid criteria. The other aspect that whether the respondent authorities were justified in taking into account the changed reservation policy per U.P. Act No. 4 of 1994, suffice it to say that admittedly interview pursuant to the advertisement dated 23.5.1992 started on 7.6.1993, i.e., much before coming into effect the U. P. Act No. 4 of 1994, Although the interview pursuant to the advertisement dated 23.5.1992 which started on 7.6.1993 was in respect to the different subject and the interview for the subject in question started on 8.8.1994 but to my mind, the selection process is to be taken as a whole pursuant to any advertisement and it cannot be bifurcated and a different date of the selection process cannot be accepted varying from subject to subject although, it is taking place pursuant to one and the same advertisement. In view of the aforesaid, on the finding that selection process has started on 7.6.1993, i.e., before commencement of the U. P. Act No. 4 of 1994, the authorities were not justified in completing the selection in the light of changed reservation policy per U. P. Act No. 4 of 1994. In this view of the matter also, the selection process appears to be vitiated.