IN THE SUPREME COURT OF
INDIA
CIVIL APPELLATE JURISDICTION
(Dr. B.S. Chauhan) and (J. Chelameswar) JJ.
April 2, 2014
CIVIL APPEAL NOs. 4255-58 of 2014
Bishnu Biswas & Ors. ... Appellants
Versus
Union of India & Ors. ...Respondents
SUBJECT
Service Law - Selection Criteria - Allocation of Marks.
Service Law - Selection Criteria - Allocation of Marks.HEADNOTE
The appropriate allocation of marks for interview,
where selection is to be made by written test as well as by interview, would
depend upon the nature of post and no straight-jacket formula can be laid down.
Further there is a distinction while considering the case of employment and of
admission for an academic course. The courts have repeatedly emphasized that
for the purpose of admission in an education institution, the allocation of
interview marks would not be very high but for the purpose of employment,
allocation of marks for interview would depend upon the nature of post.
HELD
In
the instant case, the rules of the game had been changed after
conducting the written test and admittedly not at the stage of
initiation of the selection process. The marks allocated for the oral
interview had been the same as for written test i.e. 50% for each. The
manner in which marks have been awarded in the interview to the
candidates indicated lack of transparency. The candidate who secured 47
marksout of 50 in the written test had been given only 20 marks in the
interview while large number of candidates got equal marks in the
interview as in the written examination. Candidate who secured 34 marks
in the written examination was given 45 marks in the interview.
Similarly, another candidate who secured 36 marks in the written
examination was awarded 45 marks in the interview. The fact that today
the so called selected candidates are not in employment, is also a
relevant factor to decide the case finally. If the whole selection is
scrapped most of the candidates would be ineligible at least in respect
of age as the advertisement was issued more than six years ago. Thus, in
the facts of this case the direction of the High Court to continue with
the selection process from the point it stood vitiated does not require
interference.
J U D G M E N T
Dr. B.S. CHAUHAN,
J.
1. These appeals arise out of the
common judgment and order dated 5.4.2013, passed by the High Court of Calcutta,
Circuit Bench at Port Blair in W.P.C.T. Nos.607-610 of 2012 partly allowing the
appeals against the judgment and order dated 24.8.2012, passed by the Central
Administrative Tribunal, Calcutta (Circuit Bench, Port Blair) (hereinafter
referred to as the ‘Tribunal’) allowing the O.A. No.124/AN/2010 and quashing
the appointment orders dated 5.2.2009 and 4.6.2009.
2. Facts and circumstances giving rise to these appeals are:
A. That an advertisement dated 4.2.2008 was published by
the respondent authorities calling for applications from eligible candidates as
well as from those who were registered with the Employment Exchange for
appointment to the 8 posts of Group ‘D’ staff. The recruitment rules only
provided for a written examination having 50 maximum marks. B. The written
examination was held on 25.1.2009 which was given by 870 candidates out of
which 573 candidates obtained 20 and above marks. C. A press notice dated 27.1.2009
was issued calling the successful candidates for interview, though such
interview was not part of the recruitment process. D. The interviews were
conducted and a final result sheet was published. In pursuance thereto,
appointment letters were issued to the appellants herein. E. Challenging the
said appointments, the unsuccessful candidates filed Original Application
before the Tribunal which was allowed,quashing such appointments as equal marks
were earmarked for both the written examination and interview which is
impermissible in law and that the interview was never part of the recruitment
process and thereby ordering initiation of fresh recruitment process. F. The
appointees/appellants challenged the said order before the High Court. The High
Court upheld the reasoning of the Tribunal but modified the order to the extent
of continuing the recruitment process from the point it stood vitiated. G. In
pursuance of the judgment and order of the High Court, termination letters were
issued to the appellants.
Hence, these appeals.
3. Shri Mahabir Singh, learned senior
counsel duly assisted by Ms. Aishwarya Bhati, learned counsel appearing for the
appellants has submitted that the employer has a right to prescribe for a
higher qualification or a stringent test than prescribed under the statutory rules
in order to select the best candidates and once the selection is over and the
candidates appeared without any protest, they cannot be permitted to make a
summer salt and challenge the selection as a whole. Thus, the judgments
impugned i.e. of the Tribunal as well as of the High Court are liable to be set
aside.
4. Per contra, Shri R. Balasubramaniam, learned counsel appearing for the
respondents has opposed the appeals contending that it was not permissible for
the employer to change the rule of the game after the selection process
commenced even if the employer is entitled for prescribing a higher
qualification or a stringent test than prescribed under the rules. In the
instant case as the finding of fact has been recorded by the courts below that
there had been no transparency in awarding the marks in interview and the
interview marks could not be same as that of the written test, the court should
not grant any indulgence in such case. Hence, the appeals are liable to be dismissed.
5. We have heard learned counsel for
the parties and perused the record.
6. This Court has considered the issue
involved herein in great detail in
Ramesh Kumar v. High Court of Delhi & Anr., AIR 2010 SC 3714
and held as under:
“11.
In
Shri
Durgacharan Misra v.
State
of Orissa & Ors., AIR 1987
SC 2267
this Court considered the Orissa Judicial Service Rules which did not
provide for prescribing the minimum cut-off marks in interview for the purpose
of selection. This Court held that in absence of the enabling provision for
fixation of minimum marks in interview would amount to amending the Rules
itself.While deciding the said case, the Court placed reliance upon its earlier
judgments in
B.S.
Yadav &
Ors. v. State of Haryana & Ors., AIR 1981 SC 561
P.K. Ramachandra Iyer & Ors.
v. Union of India & Ors., AIR 1984
SC 541
and
Umesh
Chandra Shukla v.
Union
of India & Ors.,
AIR 1985 SC 1351
wherein it had been held that there was no “inherent jurisdiction”
of the Selection Committee/Authority to lay down such norms for selection in
addition to the procedure prescribed by the Rules. Selection is to be made
giving strict adherence to the statutory provisions and if such power i.e. “inherent
jurisdiction” is claimed, it has to be explicit and cannot be read by necessary
implication for the obvious reason that such deviation from the Rules is likely
to cause irreparable and irreversible harm.12. Similarly, in
K. Manjusree v. State of A.P., AIR 2008 SC 1470
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 game is over. The competent authority, if the statutory rules do not
restrain, 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.13. Thus, the law on the issue can be
summarised to the effect that in case the statutory rules prescribe a
particular mode of selection, it has to be given strict adherence accordingly.
In case, no procedure is prescribed by the rules and there is no other
impediment in law, the competent authority while laying down the norms for selection
may prescribe for the tests and further specify the minimum benchmarks for
written test as well as for viva voce.”
7. In
Himani Malhotra v. High Court of Delhi, AIR 2008 SC 2103
this Court has held that it was not permissible for the
employer to change the criteria of selection in the midst of selection process.
(See also:
Tamil
Nadu Computer Science BEd Graduate Teachers Welfare Society (1) v. Higher
Secondary School Computer Teachers Association & Ors., (2009) 14 SCC 517
State of Bihar & Ors. v.
Mithilesh Kumar,
(2010) 13 SCC 467
and
Arunachal
Pradesh Public Service Commission & Anr. v. Tage Habung & Ors., AIR 2013 SC 1601
8. In
P. Mohanan Pillai v. State of Kerala & Ors., AIR 2007 SC 2840
this Court has held as under :
“It is now well-settled that
ordinarily rules which were prevailing at the time, when the vacancies arose
would be adhered to. The qualification must be fixed at that time. The
eligibility criteria as also the procedures as was prevailing on the date of
vacancy should ordinarily be followed.”
9. The issue of the change of rule of
the game has been referred to the larger Bench as is evident from the judgment
in
Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors., (2013) 4 SCC 540.
10. However, the instant case is
required to be considered in the light of the findings of facts recorded by the
Courts below:-
The Tribunal after appreciating the evidence on record, recorded
the following findings: “The applicant had secured 47 marks out of 50 in the written
examination. He was given only 20 marks in the interview whereas persons like
Miss Zeenath Begum, Mr. Mohsin, Mr. Bishnu Biswas, Mr. Mohan Raof, Mr. Bharati
Bhusan, Mr. Dilip Bepari and others got equal marks in the interview as in the
written examination or more distorting results. For instance, Mr. Bishnu Biswas
got 34 marks in the written examination and was given 45 marks in the
interview. Similarly, Mr. Dilip Bepari got 36 marks in the written examination
and got 45 marks in the interview. In case of Shri Bishnu Biswas he was not
qualified as per recruitment rules since he did not possess the prescribed 8th pass certificate for the post. Directions have been sought
from the Tribunal to set aside the appointment orders of the private
respondents as per orders of 5.2.2009 and 4.6.2009.”
11. The High Court
considered these issues and recorded the finding of fact that undoubtedly
awarding of marks in the above manner indicated lack of transparency in the matter.
12. The High Court has further held
that distribution of marks equally both in the written test and in the
interview is not permissible at all. In the instant case, there has been 50
marks for the written test as well as 50 marks for interview though the rules
did not envisage holding of the interview at all.
13. This Court in
Ashok Kumar Yadav & Ors. etc. etc. v. State of Haryana & Ors., AIR 1987 SC 454
held that allocation of 22.2% marks for
the viva voce test was excessive and unreasonably high, tending to leave room
for arbitrariness.
(See also :
Munindra Kumar & Ors. v. Rajiv Govil & Ors., AIR 1991 SC 1607
Mohinder Sain Garg v. State of
Punjab & Ors.,
(1991) 1 SCC 662
P.
Mohanan Pillai (supra);
and
Kiran
Gupta & Ors. etc. etc. v. State of U.P. & Ors. etc., AIR 2000 SC 3299
14. In
Satpal & Ors. v. State of Haryana & Ors., 1995 Supp (1) SCC 206
this Court disapproved allocation of 85% of total marks
for interview observing that such fixation was conducive to arbitrary selection.
While deciding the said case the court placed reliance upon the Constitution
Bench judgment in Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors., AIR 1981 SC 487
wherein the court
had held that allocation of more than 15% of the total marks for the oral interview
would be arbitrary and unreasonable and would be liable to be struck down as
constitutionally invalid. Thus, it is evident that the courts had always
frowned upon prescribing higher percentage of marks for interview even when the
selection has been on the basis of written test as well as on interview.
15. The
appropriate allocation of marks for interview, where selection is to be made by
written test as well as by interview, would depend upon the nature of post and
no straight-jacket formula can be laid down. Further there is a distinction
while considering the case of employment and of admission for an academic
course. The courts have repeatedly emphasized that for the purpose of admission
in an education institution, the allocation of interview marks would not be very
high but for the purpose of employment, allocation of marks for interview would
depend upon the nature of post.
16. In
Mehmood Alam Tariq & Ors. v. State of Rajasthan & Ors., AIR 1988 SC 1451
this Court had upheld fixation of 33% marks
as minimum qualifying marks for viva test.
17. In
State of U.P. v. Rafiquddin & Ors., AIR 1988 SC 162
this Court upheld the fixation of 35% marks as minimum
qualifying marks in the viva test for selection for the recruitment to the post
of a judicial magistrate.
18. In
Anzar Ahmad v. State of Bihar & Ors., AIR 1994 SC 141
allocation of 50% marks for viva test and 50% marks for
academic performance was upheld by this Court while considering the appointment
of Unani Medical Officer observing that court mustexamine as to whether
allocation of such higher percentage may tend to arbitrariness.
19. In
Jasvinder Singh & Ors. v. State of J&K & Ors., (2003) 2 SCC 132
this Court upheld the allocation of 20% marks for viva test as
against 80% marks for written test for selection to the post of Sub- Inspector
of Police. However, the Court cautioned observing that the awarding of higher
percentage of marks to those who got lower marks in written test in comparison
to some who had got higher marks in written examination, an adverse inference
from certain number of such instances can be drawn. However, in absence of any
allegation of mala fides against the Selection Committee or any Member thereof,
a negligible few such instances, would not justify the inference that there was
a conscious effort to bring some candidates within the selection zone.
20. In the instant case, the rules of
the game had been changed after conducting the written test and admittedly not
at the stage of initiation of the selection process. The marks allocated for
the oral interview had been the same as for written test i.e. 50% for each. The
manner in which marks have been awarded in the interview to the candidates indicated
lack of transparency. The candidate who secured 47 marksout of 50 in the
written test had been given only 20 marks in the interview while large number
of candidates got equal marks in the interview as in the written examination.
Candidate who secured 34 marks in the written examination was given 45 marks in
the interview. Similarly, another candidate who secured 36 marks in the written
examination was awarded 45 marks in the interview. The fact that today the so
called selected candidates are not in employment, is also a relevant factor to
decide the case finally. If the whole selection is scrapped most of the
candidates would be ineligible at least in respect of age as the advertisement
was issued more than six years ago. Thus, in the facts of this case the
direction of the High Court to continue with the selection process from the
point it stood vitiated does not require interference.
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