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
[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).
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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
