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20. In the facts as stated above, we are completely unable to see any illegality in the selection process much less any bias or malice of any kind. But on behalf of the writ petitioners-respondents, it is contended that it is a clear case of bias. It is alleged that in order to bring in its favoured candidates the Commission found it necessary to exclude a sufficient number of meritorious candidates by any ruse and the minimum qualifying mark for viva voce was introduced at the last minute only for that intent and purpose. The respondents pointed out that the application of the minimum qualifying mark separately for the viva voce excluded some candidates who would have been selected only on the strength of their marks in the written test even though they were given nil mark in the viva voce. The respondents cited several kinds of figures before the High Court to high light the "anomalies" resulting from the introduction of the minimum qualifying mark for the viva voce. It was pointed out that 81 out of the 203 selected candidates had got the minimum qualifying mark in the viva voce, i.e., 10 out of the total of 30; 190 candidates out of 790 called for interview got just 8 or 9 marks in the viva voce and were, thus, excluded from the final select list; 503 candidates out of the 790 called for interview got less than the qualifying mark in the viva voce. One or two more examples of a similar nature were also cited by the respondents. The Division Bench of the High Court appears to have attached considerable importance to these so called anomalies and its judgment seems to have been influenced by these results.

26. The Division Bench of the High Court has held that the introduction of the minimum qualifying mark for the viva voce at the later stage in the selection process was not permissible and it completely vitiated the selection process. Mr. Viswanathan strongly supports the view taken by the High Court. In support of its view, the Division Bench of the High Court, has placed reliance on two decisions of this Court, one in K. Manjusree v. State of Andhra Pradesh and another, (2008) 3 SCC 512 and the other Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11. Mr. Viswanathan also cited before us the decision in K. Manjusree and invited our attention particularly to the following passage in paragraph 33 of the judgment:

"33..... 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 wants 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."

31. Now coming back to the facts of the case in hand, though the rules framed under Article 309 of the Constitution governing the selection process mandated that there would be minimum qualifying marks each for the written test and the oral interview, the cut off mark for viva voce was not specified in the advertisement. In view of the omission, there were only two courses open. One, to carry on with the selection process and to complete it without fixing any cut off mark 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 rule governing the selection. The other course was to fix the cut off mark for the viva voce and to notify the candidates called for interview about it. This is the course that the Commission followed. This was in compliance with the rules and it did not cause any prejudice to any candidate either. We, thus, see no illegality at all in the selection process.