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Friday, August 16, 2013

Service matter = whether fixation of benchmark would amount to change in the criteria of selection in the midstream when there was no such stipulation in that regard in the advertisement.- whether there was any change in the mode of selection after the process of selection had started. - Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10(ii), Part C speaks of “selection for appointment”. Even as there is no constraint on the State Government in respect of the number of appointment to be made, there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility.” “In the case at hand, as we perceive, the intention of the Commission was to get more meritorious candidates. There has been no change of norm or procedure. No mandate was fixed that a candidate should secure minimum marks in the interview. Obtaining of 65% marks was thought as a guidelines for selecting the candidate from the OBC category. The objective is to have the best hands in the field of law. According to us, fixation of such marks is legitimate and gives a demarcating choice to the employer. It has to be borne in mind that the requirement of the job in a Competition Commission demands a well structured selection process. Such a selection would advance the cause of efficiency. Thus scrutinized, we do not perceive any error in the fixation of marks at 65% by the Commission which has been uniformly applied. The said action of the Commission cannot be treated to be illegal, irrational or illegitimate.” It is stated at the cost of repetition that there is no change in the criteria of selection which remained of 80 marks for written test and 20 marks for interview without any subsequent introduction of minimum cut off marks in the interview. It is the short listing which is done by fixing the benchmark, to recruit best candidates on rational and reasonable basis. That is clearly permissible under the law.(M.P.Public Service Commission vs. Navnit Kumar Potdar & Anr. (1994) 6 SCC 293). - 18. The result of the aforesaid discussion would be to dismiss the appeals as bereft of any merit. No costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40656
       
   [REPORTABLE]

                 IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NO.6799/2013
                 (arising out of S.L.P.(Civil) No. 34427/2011)


 Yogesh Yadav
  …..Appellant

            Versus

 Union of India & Ors.
 ….Respondents

 WITH

 C.A.No.6800/2013 (@ SLP(civil) Nos.6988/2012

 C.A.No.6801/2013 (@ SLP(civil) Nos.9556/2012



                       J U D G M E N T

A.K.SIKRI,J.

1.    Leave granted.

2.    Counsel for the parties were  heard  at  length  on  the  issue
involved in these cases. We now proceed to decide the  same  by  this
order.

3.    Matter pertains to appointment to the post of  Deputy  Director
(Law) in the Other Backward Class (OBC Category).
Appointments to the
vacancies in the aforesaid post were to be  made  in  the  office  of
Competition Commission of India (CCI).
The three appellants in  these
three appeals were also the candidates who appeared  in  the  written
test.
After  qualifying  the  written  test,  they  also  faced  the
interview.
However, their  names  did  not  appear  in  the  list  of
candidates finally selected.
According to the appellants, their  non-
selection was the result of altering the prescribed mode of selection
-mid-way i.e. after the initiation of recruitment process  which  was
impermissible. 
This contention has not found favour with  either  the
learned Single Judge in the Writ  Petitions  filed  by  them  or  the
Division Bench of the  High  Court  in  the  appeals  filed  by  them
challenging  the  order  of  the  learned  Single  Judge.   Bone   of
contention, before us also, remains the same.  Therefore,  the  issue
which needs to be decided is as to
whether there was  any  change  in
the mode of selection after the process of selection had started.

4.     Seminal  facts  which  are  necessitated  to  understand   the
controversy are recapitulated herein below.

5.    CCI had issued the notification  through  public  notice  dated
11th November, 2009 inviting applications for various posts.  We  are
concerned with the  post  of  Deputy  Director  (Law)  for  which  13
vacancies were notified -  9  were  in  General  category,  1  in  SC
Category and 3 posts were reserved for OBC category. Clause 7 of  the
notification stipulated  the  mode  of  selection  in  the  following
manner:

      “7.   Mode of Selection

            All the applications received by the due date will be  screened
      with reference to the minimum qualification  criteria.  From  amongst
      the eligible candidates, suitable candidates  will  be  short  listed
      through a transparent mechanism and the short listed candidates  will
      be called for interview before final selection.  Mere  fulfilling  of
      minimum qualifications by itself would not entitle any applicant  for
      being called for interview.”



6.    The eligibility / qualification /experience  required  for  this
post was also provided in the advertisement. It is undisputed that the
appellants fulfilled the eligibility condition, being holder of degree
of Bachelor of Law (Professional) as well as 3  years’  experience  in
the relevant field including in the Corporate Sector. Written test for
this post was held  on  14th  February,  2010  for  short  listing  of
candidates for interview. Admit card was also issued to the appellants
for appearing in the written test along with the detailed instructions
including the scheme  of  examination.  Paragraphs  4  and  9  of  the
Instruction which were given to the examinees/candidates are  relevant
for our purposes and therefore we reproduce the same hereunder:

            “4.  The selection to all  the  positions  advertised  will  be
      based on a written test followed by an interview.  The  written  test
      will carry 80% of the marks and interview will have 20% of the marks.
      The written test will be in two parts. The first part will  be  based
      on multiple choice questions for  50  marks.  There  is  no  negative
      marking in this multiple choice questions. The second  part  carrying
      30 marks will be distributed to  the  descriptive  questions  on  the
      subject of your  specialization  within  the  broad  outline  of  the
      subject of specialization as indicated in the advertisement.

            Xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

            9.   Candidates who do not secure 50% of the marks in the  test
      will not  be  called  for  the  interview.  However,  for  candidates
      belonging to the reserved categories, the cut off marks will  be  40%
      of the total marks.”





 7.   Written examination was of 80 marks and the appellants  secured
more than 50% marks therein. They were called for the interview which
was held on 19th March 2010 and the result of which was published  on
the website of the CCI. Finally, only 5 candidates, that too from the
General category, were selected.   Nobody from the OBC  category,  to
which category  the  appellants  belonged,  emerged  successful.   On
obtaining the information from the respondents  under  the  Right  to
Information Act 2005, the appellant in CA___/2013 (@SLP(C) No.  34427
of 2011) came to know that he had secured only  2  marks  out  of  20
marks in the interview. In this manner, total marks  secured  by  him
were 53 out of 100 marks. He also learnt  that  the  respondents  had
fixed the benchmark of 70 marks for the General Category and 65 marks
for the Reserved Category candidates. Since the total marks  obtained
by all these appellants were less than 65, that was  the  reason  for
their non selection. It is  this  fixation  of  benchmark  which  has
agitated the appellants and according to them it amounts to  changing
the selection procedure mid-way, which is illegal.

8.    The appellants approached the High Court of Delhi by  filing  a
Writ Petitions challenging their  non-  selection  primarily  on  the
ground that the selection criteria was changed arbitrarily  that  too
after the advertisement and the law did not permit the respondents to
change the rules of the game after the game had started. The  precise
contention in this behalf was that the benchmark which was  fixed  at
70 and 65 marks  or  above  in  the  General  and  Reserved  category
respectively for the purposes of selection was not mentioned  earlier
i.e.  before  the  start  of  selection  process,   either   in   the
advertisement or otherwise.

9.    The Writ petitions were contested by the  respondents.  In  the
counter affidavit filed by the CCI, it was explained that  there  was
an overwhelming response received from the candidates  for  selection
to the aforesaid post and  having  regard  to  the  large  number  of
applications received, the CCI decided to undertake the selection  to
all posts notified in the advertisement on the basis of written  test
followed by interview and accordingly it was determined that  written
test would be  for  80  marks  while  20  marks  were  attributed  to
interview. Further, candidates who secured minimum of 50 marks in the
written test in the General category and minimum of 40 marks  in  the
reserved category were called for interview in  the  ratio  of  three
times of the number of vacancies where the number of  vacancies  were
more than 10 and 5 times of the number of the vacancies for less than
the 10. The marks obtained in the written test were not disclosed  to
the interview committee and the committee independently  and  without
being influenced by the marks obtained in the written  test  adjudged
the candidates on the basis of Viva Voce test and awarded the  marks.
The marks of the written test, which were kept in the  sealed  cover,
were opened after the marks given to candidates in the  interview  by
the  interview  board  and  tabulated   merit   list   was   prepared
accordingly. The CCI, keeping in view the nature and purpose  of  the
post, decided to fix the percentage for final selection were 70 marks
out of 100 for unreserved Category and minimum 65 marks  out  of  100
for reserved category for professional categories in  which  category
the post of Deputy Director (Law) falls.   It was argued that such  a
course of action was permissible and it was not a case where the mode
of selection, at any time was changed and in so far  as  fixation  of
benchmark  is  concerned  that  was  prerogative  of  the   employer.


10.   The learned Single Judge of the High Court accepted the plea of
the respondents as he did not perceive  this  to  be  the  change  in
criteria in the selection procedure, holding  that  fixation  of  the
benchmark was legal and justified.   As  pointed  out  above,  Letter
Patent Appeals filed by the appellants  against  the  learned  Single
Judge have also met the same fate.

11.    In  the  aforesaid  backdrop,  the  question  that  falls  for
consideration is as to
whether fixation of benchmark would amount  to
change in the criteria of selection in the midstream when  there  was
no such stipulation in that regard in the advertisement.

12.   Mr. Jayant Bhushan, the learned senior  counsel  appearing  for
one of the appellants submitted that the case is squarely covered  by
the ratio of judgment of this Court  in  Himani  Malhotra   vs.  High
Court of Delhi (2008) 7 SCC 11.  That case pertained  to  recruitment
to the Higher Judicial Service in Delhi.  The mode of  selection  was
written test and viva voce.  250 marks were assigned for written test
and 750 marks prescribed for viva voce test.  When the  advertisement
was given there was no stipulation prescribing minimum marks/cut  off
marks at viva voce test after the written test was held.  The persons
who qualified the written test were called for interview.   Interview
was, however, postponed by the interview committee and it  felt  that
it was desirable to prescribe minimum marks for the viva voce test as
well.  The matter was placed before the Full  Court  and  Full  Court
resolved to fix minimum qualifying marks in viva voce which were  55%
for general category, 50% for SC/ST candidates.   After  this  change
was effected in the criteria thereby prescribing fixation of  minimum
qualifying marks, the interviews were held. The petitioners  in  that
case were not selected as they secured less than 55 %  marks.   Those
two petitioners filed the Writ Petition submitting  that  prescribing
minimum cut off marks in the viva  voce  test,  after  the  selection
process had started, when there was no such stipulation at  the  time
of  initiation  of   recruitment   process,   was   unwarranted   and
impermissible.  The Court, taking notice of its earlier judgments  in
Lila Dhar vs. State of Rajasthan (1981) 4 SCC 159 and K.Manjusree vs.
State of A.P. (2008) 3 SCC 512 held that when the previous  procedure
prescribing minimum marks  was  not  permissible  at  all  after  the
written test was conducted, the ratio of the case  is  summed  up  in
paragraph 15 of the Judgment, 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.”




 13.  This very argument based on the aforesaid judgment was taken in
 the LPAs before the High Court as well.   However,  the  High  Court
 took the view that the aforesaid judgment was not applicable in  the
 instant case as  the  factual  scenario  was  altogether  different.
 Since we are agreeing with the view of the High Court, it  would  be
 apposite to take notice of the relevant discussion on this aspect:

            “18. From the aforesaid pronouncement of law, it is vivid  that
      an amended rule cannot affect  the  right  of  a  candidate  who  has
      qualified as per the terms stipulated in  the  advertisement  and  is
      entitled to claim a selection in accordance with the  rules  as  they
      existed on the date of the advertisement; that the selection  can  be
      regulated by  stipulating  a  provision  in  the  rule  or  laying  a
      postulate in the advertisement for obtaining minimum  marks  are  not
      prescribed for viva voce before the  commencement  of  the  selection
      process, the authority, during the selection  process  or  after  the
      selection process, cannot add an additional requirement/qualification
      that the candidate should also secure minimum marks in the interview;
      that the norms or rules as existing on the date  when the process  of
      selection begins will control such selection and that revisiting  the
      merit list by adopting a minimum percentage of marks for interview is
      impermissible.

            19.  The factual scenario in the present case has  a  different
      backdrop.   The  advertisement  stipulated  that  the  short   listed
      candidates would be called for interview before the  final  selection
      and mere fulfilling of minimum qualifications  by  itself  would  not
      entitle any applicant for being called for interview. Thereafter,  in
      the instruction, the marks were divided.  Regard  being  had  to  the
      level of the post and the technical legal aspects which are  required
      to be dealt with, a concise decision was taken to fix 65%  marks  for
      OBC category in toto, i.e., marks obtained in the written examination
      and marks secured in the interview.  It  is  not  a  situation  where
      securing of minimum marks was introduced which was not stipulated  in
      the  advertisement.   A  standard  was  fixed  for  the  purpose   of
      selection.”




14.   Instant is not a case where no  minimum  marks  prescribed  for
viva voce and this is sought to be done after the written  test.   As
noted above, the instructions to the examinees provided that  written
test will carry 80%  marks  and  20%  marks  were  assigned  for  the
interview.  It was also provided that candidates who secured  minimum
50% marks in the general  category  and  minimum  40%  marks  in  the
reserved categories  in  the  written  test  would  qualify  for  the
interview.  Entire selection was undertaken in  accordance  with  the
aforesaid criterion which was laid down at the  time  of  recruitment
process.  After conducting the interview, marks of the  written  test
and viva voce were to be added.  However,  since  benchmark  was  not
stipulated for giving the appointment.  What is done in  the  instant
case is that a decision is taken to give appointments only  to  those
persons who have secured 70% marks or above marks in  the  unreserved
category and 65% or above marks in the reserved  category.    In  the
absence of any rule on this aspect in the first instance,  this  does
not amount to changing the “rules of the game”.  The High  Court  has
rightly held that it is not a situation  where  securing  of  minimum
marks was introduced which was not stipulated in  the  advertisement,
standard was fixed for the purpose of selection.   Therefore,  it  is
not a case of changing the rules of game.  On  the  contrary  in  the
instant case a decision is taken to give appointment  to  only  those
who fulfilled the benchmark prescribed. Fixation of such a  benchmark
is permissible in law. This is an altogether different situation  not
covered by Hemani Malhotra case.

15.   The decision taken in the instant case amounts to short listing
of candidates for  the  purpose  of  selection/appointment  which  is
always  permissible.  For  this  course  of  action   of   the   CCI,
justification is found by the High Court  noticing  the  judgment  of
this Court in the State of Haryana vs. Subash Chander Marwaha &  Ors.
(1974) 3 SCC 220.  In that case, Rule 8 of the Punjab  Civil  Service
(Judicial  Branch)  Service  Rules  was   the   subject   matter   of
interpretation.  This rule stipulated consideration of candidates who
secured 45% marks in aggregate. Notwithstanding the  same,  the  High
Court recommended the names of candidates who had secured  55%  marks
and the Government accepted the same.  However, later on  it  changed
its mind and High Court issued Mandamus directing appointment  to  be
given to those who had secured 45% and above  marks  instead  of  55%
marks.  In appeal, the judgment of  the  High  Court  was  set  aside
holding as under:

             “It  is  contended  that  the  State  Government  have   acted
      arbitrarily in fixing 55 per cent as the minimum  for  selection  and
      this is contrary to the rule referred to above. The argument  has  no
      force.
Rule 8 is a step in the preparation  of  a  list  of  eligible
      candidates with minimum qualifications  who  may  be  considered  for
      appointment. The list is prepared in order of merit. The  one  higher
      in rank is deemed to be more meritorious than the one who is lower in
      rank. It could never be said that one who tops the list is  equal  in
      merit to the one who is at the bottom of the list. Except  that  they
      are all mentioned in one list, each one of them stands on a  separate
      level of competence as compared  with  another.   
That  is  why  Rule
      10(ii), Part C speaks of “selection for appointment”.  Even as  there
      is no constraint on the State Government in respect of the number  of
      appointment  to  be  made,  there  is  no  constraint  on  the  State
      Government in respect of the number of appointments to be made, there
      is no constraint on the Government fixing a higher   score  of  marks
      for the purpose of selection. In a case where appointments  are  made
      by selection from a number of eligible candidates it is open  to  the
      Government   with a view to maintain high-standards of competence  to
      fix a score which is much higher  than  the  one  required  for  mere
      eligibility.”




16.   Another weighty reason given by the High Court in  the  instant
case, while approving the aforesaid action of the CCI,  is  that  the
intention of the CCI was to get more meritorious  candidates.
There
was no change of norm or procedure and no mandate was  fixed  that  a
candidate should secure minimum marks in the interview.
In order to
have meritorious persons for those posts,  fixation  of  minimum  65%
marks for selecting a person from the OBC category  and  minimum  70%
for general category, was legitimate giving a demarcating  choice  to
the employer. In the words of the High Court:

            “In the case at hand, as we  perceive,  the  intention  of  the
      Commission was to get more meritorious candidates.  There has been no
      change of norm or procedure. No mandate was fixed  that  a  candidate
      should secure minimum marks in the interview.  Obtaining of 65% marks
      was thought as a guidelines for selecting the candidate from the  OBC
      category. The objective is to have the best hands  in  the  field  of
      law. According to us, fixation of such marks is legitimate and  gives
      a demarcating choice to the employer. It has to be borne in mind that
      the requirement of the job in a Competition Commission demands a well
      structured selection process.  Such a  selection  would  advance  the
      cause of efficiency. Thus scrutinized, we do not perceive  any  error
      in the fixation of marks at 65% by  the  Commission  which  has  been
      uniformly applied.  The said  action  of  the  Commission  cannot  be
      treated to be illegal, irrational or illegitimate.”



17.   It is stated at the cost of repetition that there is no  change
in the criteria of selection which remained of 80 marks  for  written
test and 20 marks for interview without any  subsequent  introduction
of minimum cut off marks in the interview.  It is the  short  listing
which is done by fixing the benchmark, to recruit best candidates  on
rational and reasonable basis.  That is clearly permissible under the
law.(M.P.Public Service Commission vs. Navnit Kumar  Potdar   &  Anr.
(1994) 6 SCC 293).

-

18.   The result of the aforesaid discussion would be to dismiss  the
appeals as bereft of any merit.  No costs.

                                       ……………………………J.
                                       ( Anil R. Dave)



                                       ……………………………J.
                                       ( A.K.Sikri)
  New Delhi
  Dated:  16th August, 2013









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