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In the aforesaid facts and circumstances, the contention advanced on behalf of the petitioner that the impugned act of bringing about change in the selection procedure by providing minimum marks for interview or viva voce test in midst of the selection process which has already been initiated amounts to changing the rules of the game and hence impermissible, is well supported by judgment in the case of K. Manjusree v. State of Andhra Pradesh & Anr.[1] as well as in the case of Hemani Malhotra Etc. v. High Court of Delhi[2]. In my view once petitioner was declared as the lone candidate having passed in the written examination, it matters little whether minimum marks for interview were introduced before or after calling him for interview. The petitioner or any other person in his place, knowing fully well that there was no separate cut-off or pass mark for the viva voce, would not feel any pressure to be extra ready for the interview. In order to ensure fairness, after the Full Court decision on 12.01.2015 to fix 40% as pass marks for viva voce, the petitioner ought to have been informed of this development, at least when intimation of date of interview was communicated to him through letter dated 29.01.2015. Since the viva voce was held on 12.02.2015, he would have got some time to improve his preparations to meet the 40% cut-off newly introduced. That was not done. In such circumstances, I do not find any material, reason or circumstance to distinguish the case of K. Manjusree as well as of Hemani Malhotra. In my considered view the High Court did not have the power to change the scheme of the rules which prescribed pass marks only for the written examination, deliberately omitted the same for viva voce examination and warranted final results after adding both the marks. If for the sake of arguments, such power is conceded even then the power could not have been exercised to change the rules of the game when petitioner alone was left in the arena and could not have been disqualified except by changing the rules midway. Para 15 in the case of Hemani Malhotra extracted earlier in the preceding judgment applies on all force like the judgment in the case of K. Manjusree. Learned counsel for the petitioner has rightly placed reliance on those judgments. The judgment in the case of Ramesh Kumar v. High Court of Delhi & Anr.[3] draws some inspiration from the recommendations of Justice Shetty Commission’s Report in para 16 but the general law already settled and stated in para 15 also clearly helps the case of the petitioner. In my view the statutory rules did prescribe a particular mode of selection which did not require any pass mark for the viva voce examination and it had to be given strict adherence accordingly, at least till the ongoing recruitment process got concluded. Since the procedure was already prescribed by the Rules, in the present case there was clear impediment in law in the way of the High Court in proceeding to lay down minimum pass mark for the viva voce test which was meant only for the petitioner as he was the lone candidate successful in the written examination. In my view the petitioner was clearly prejudiced and although no case of bias has been pleaded, the impugned action would validly attract the criticism of malice in law.

8. We have heard learned counsel for the parties at length.

9. Learned Senior Counsel for the writ petitioner, Mr. Sanjay R. Hegde submitted that the Full Court Resolution dated 12th January, 2015 fixing cut-off marks – minimum 40% in the interview is an erroneous interpretation of Evaluation of Performance given in Schedule B of the 2005 Rules. It was further submitted that the action of the respondents to apply the criteria of minimum qualifying marks in the interview would amount to change in the criteria for selection after the selection process started. It was further submitted that the petitioner was never informed about the Resolution dated 12th January, 2015 prescribing minimum marks to be secured in the interview, and the same amounts to violation of principles of natural justice. In support of the contention that changing the ‘rules of the game’ during the course of selection process would vitiate the entire selection, reliance was placed upon Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 and K. Manjusree v. State of Andhra Pradesh & Anr. (2008) 3 SCC 512.

16. Contending that change in the norms for selection by introducing the minimum marks for interview during the selection process would amount to change in the rules of the game, reliance was placed upon K. Manjusree v. State of A.P. (2008) 3 SCC 512 wherein this Court held that selection criteria has to be adopted and declared at the time of commencement of the recruitment process. The rules of the game cannot be changed after the commencement of the game. It was held that the competent authority, if not restrained by the statutory rules, is fully competent to prescribe the minimum qualifying marks for written examination as well as for interview. But such prescription must be done at the time of initiation of selection process. Change of criteria of selection in the midst of selection process is not permissible.

18. Observing that prescribing minimum marks for the interview was not permissible after the written test was conducted, in Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11, it was held as under:

“15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva-voce, but if minimum marks are not prescribed for viva- voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva-voce test was illegal.”