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3. In response to the said Notification, 960 "valid applications" were received by the first respondent. The said 960 applicants were invited to participate in the selection process. But it appears that eventually, only 443 applicants appeared for the written examination, which was conducted from 27th to 29th October 2007. After the written examination, the answer scripts of the above mentioned participants were evaluated and it was found that only seven candidates obtained "cut off" marks in the written examination. 'Cut-off', i.e., the minimum qualifying marks to be secured by the candidates in each of the papers for qualifying the examination as specified in paragraph 4 of the Notification dated 16.04.2007. The relevant portion of paragraph No.4 of the Notification reads as follows:

20. The Supreme Court in (2008) 3 SCC 512 had an WP(C) Nos. 16206 and 16207 of 2010 occasion to consider a similar question. The brief facts of the case before the Supreme Court are as follows. The selection of 10 posts of District and Sessions Judges in the Andhra Pradesh State Higher Judicial Services was in dispute before the Supreme Court. By a resolution of the Administrative Committee of the said High Court dated 30.11.2004, it was decided to have an examination for all the eligible candidates who responded to the notification. The examination was in two parts, written and oral. The resolution also provided for a minimum qualifying mark for the written examination which renders the candidates securing such minimum qualifying mark eligible for being called for viva-voce examination. The written examination was conducted and it was found that 83 candidates were successful on the basis of the minimum qualifying mark referred to earlier. On a subsequent date, on the basis of recommendation made by a sub-committee of the Judges of the Andhra Pradesh High Court, the High Court decided to apply a minimum qualifying mark criteria even with reference to the viva-voce component of WP(C) Nos. 16206 and 16207 of 2010 the examination. As a consequence of such a decision, some of the candidates who were called for the viva-voce examination and secured higher total marks than some of the candidates selected after applying the minimum qualifying mark criteria in the viva-voce were eliminated from the selection process which resulted in litigation culminating in the above said decision. At paragraph 27 the Supreme Court held as follows:

"13. The question for consideration is whether the High Court in the circumstances of this case had the power to add two marks to the marks obtained in each paper by way of moderation. It is no doubt, true that the High Court is entrusted with the duty of conducting the competitive examination under Rule 13 of the Rules. It is argued on behalf of the High Court that the power to conduct an examination includes the power to add marks either by way of moderation or by way of grace marks if it feels that it is necessary to do so, and reliance is placed by the High Court on its own post practice, and the practice prevailing in a number of universities in India, where marks are awarded either as moderation marks or as grace marks. It is true that in some educational institutions marks are awarded by way of moderation at an examination of the examining body finds any defect in the examination conducted by it such as inclusion of questions in the question papers which are outside the syllabus, extremely stiff valuation of the answer books by WP(C) Nos. 16206 and 16207 of 2010 an examiner or any other reason relevant to the question papers or the valuation of the answer books. The reason given by the High Court for adding the moderation marks has nothing to do either with the question papers or with the mode of valuation. The High Court approved the list of 27 candidates who had secured the required qualifying marks which would enable them to appear at the viva-voce test as prescribed in the Appendix. Thereafter the High Court resolved to add two marks to the marks obtained in each paper by way of moderation on the ground that a few candidates who had otherwise secured very high marks may have to be kept out of the zone of consideration for final selection by reason of their having secured one or two marks below the aggregate or the qualifying marks prescribed in the particular paper. The resolution does not show the names of the particular candidates considered at the meeting in whose case such a concession had to be shown. The affidavit filed on behalf of the High Court, of course, refers to certain hard cases which persuaded the High Court to add additional marks by way of moderation. The question for decision is whether such a resolution can be passed by the High Court which is entrusted with the duty of conducting the examination. The High Court had not WP(C) Nos. 16206 and 16207 of 2010 found any defect in the question papers or any irregularities in the valuation of the answer books. It may be that some candidates had obtained high marks in some papers and by reason of their not obtaining the required marks in the other papers or 60% and above in the aggregate they may not have become qualified for the Viva Voce test. In our opinion this alone would not be sufficient to add any marks by way of moderation. It is relevant to note the mandatory character of clause (6) in the Appendix to the Rules which says only such candidates will be called for Viva Voce who have obtained 50% marks in each written paper and 60% in the aggregate except in the case of candidates belonging to the Scheduled Castes/Tribes in whose case the qualifying marks will be 40% in each written paper and 50%in the aggregate. Addition of any marks by way of moderation to the marks obtained in any written paper or to the aggregate of the marks in order to make a candidate eligible to appear in the Viva Voce test would indirectly amount to an amendment of clause (6) of the Appendix. Such amendment to the Rules can be made under Article 234 only by the Lt. Governor (Administrator) after consulting the High Court in that regard. In the instant case by resolving to add two marks to the marks obtained in each answer book by a candidate(sic) has virtually amended the Rules by WP(C) Nos. 16206 and 16207 of 2010 substituting 48% in the place of 50% which is required to be secured in each written paper and 58% in the place of 60% which is required to be secured in the aggregate in the case of candidates not belonging to Scheduled castes/Tribes and 38% in the place of 40% in each written paper and 48% in the place of 50% in the aggregate in the case of candidates belonging to Scheduled Castes/Tribes. The adverse effect of the moderation on the candidates who had secured the required qualifying marks at the examination in question is quite obvious, since four candidates whose names were not in the list of 27 candidates published on the first occasion have been included in the first list of candidates chosen for appointment from out of the final list of successful candidates in preference to some of the candidates who had obtained the qualifying marks in the written papers and they would have been appointed as Sub-Judges but for the interim order made by this Court. These four candidates were able to get in to the list of persons to be appointed as Sub-Judges because of the high marks they were able to secure at the Viva Voce test for which they were not eligible but for the moderation marks. The area of competition which the 27 candidates who had been declared as candidates WP(C) Nos. 16206 and 16207 of 2010 eligible to appear at the Viva Voce examination before such moderation had to face became enlarged as they had to compete also against those who had not been so qualified according to the Rules. The candidates who appear at the examination under the Delhi Judicial Service Rules acquire a right immediately after their names are included in the list prepared under Rule 16 of the Rules which limits the scope of competition and that right cannot be defeated by enlarging the said list by inclusion of certain other candidates who were otherwise ineligible, by adding extra marks by way of moderation. In a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the Viva Voce test should be the basis for selection. On reading Rule 16 of the Rules which merely lays down that after the written test the High Court shall arrange the names in order of merit and these names shall b sent to the Selection Committee, we are of the view that the High Court has no power to include the names of candidates who had not initially secured the minimum qualifying marks by resorting to the devise of moderation, particularly when there was no complaint either about the question papers or about the mode of valuation. Exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. WP(C) Nos. 16206 and 16207 of 2010 It may also result in the violation of the principle of equality and may lead to arbitrariness."

33. However, in view of the subsequent decision of the 1st respondent to fill up 10 posts, the 1st respondent may now proceed with the selection from out of the 7 abovementioned candidates in accordance with law by recasting the select list. In view of the fact that some of the 10 posts sought to be filled up are required to be filled up by candidates belonging to reserved categories, if on such an exercise any of the vacancies of the abovementioned 10 posts sought to be filled up cannot be filled up for lack of a suitable candidate, the respondents should now resort to the procedure contemplated under Rule 15(a) of the K.S. & S.S.R. It goes without saying that it should be open to the respondents to prescribe such cut off marks as the WP(C) Nos. 16206 and 16207 of 2010 minimum qualifying marks in such limited recruitment as they deem fit and proper in the circumstances.