REPORTABLE   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4959-4962 OF 2011 [Arising out of SLP (C) Nos. 5177-5180 of 2010]

Barot Vijaykumar Balakrishna & Ors.     … Appellants

Versus

Modh Vinaykumar Dasrathlal & Ors.    … Respondents

WITH

CIVIL APPEAL NO. 4963 OF 2011 [Arising out of SLP (C) Nos. 3584 OF 2010]

Gujarat Public Service Commission & Anr.     … Appellants

Versus Modh Vinaykumar Dasarathlal & Ors.              … Respondents

 J U D G M E N T

AFTAB ALAM, J.

1. Leave granted.

2. These  appeals  arise  from a batch of  writ  petitions  filed before  the  

Gujarat High Court questioning the validity of the appointments of Assistant

Public Prosecutor (Class-II) made from the select list prepared on the basis  

of the written examination and viva voce and personality test held by the  

Gujarat Public Service Commission. The challenge was based on the ground  

that the minimum qualifying mark, separately fixed for the viva voce, was  

introduced just two or three days before the commencement of the oral tests  

though it was not stipulated in the advertisement issued by the Commission  

for filling up the posts. According to the writ petitioners (respondents before  

this Court), the introduction of the minimum qualifying mark for the viva  

voce,  after  the  commencement  of  the  selection  process  was,  illegal  and  

actuated by bias on the part of the Commission. It led to a number of highly  

anomalous  results  and  completely  vitiated  the  selections  and  the  

appointments made on that basis.    

3.  A learned single judge of  the High Court  did not  accept  the writ  

petitioners’ contention and dismissed all the writ petitions by judgment and  

order dated August 17, 2009, passed in Special Civil Application No.7699 of  

2009 (and other analogous cases).

4. Against  the judgment  of the  single judge,  the writ  petitioners  filed  

intra-court  appeals  and  a  division  bench  of  the  High  Court  allowed  the  

appeals and set aside the judgment of the single judge. It held that the action  

of the Commission in introducing the minimum qualifying mark for the viva  

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voce, in the middle of the selection process, was bad and “the Commission  

appears to have guided by legal malafide (sic)”. It, accordingly, quashed the  

select list and the appointments made on its basis and directed that a fresh  

list  be drawn up on the basis of the aggregate of marks obtained by the  

candidates in the written test and the viva voce regardless of the minimum  

qualifying mark prescribed by the Commission for the viva voce. It directed  

the concerned authorities to complete the process within 2 months from the  

date of the judgment and till then permitted the appointees to continue to  

serve in their respective positions.  

5. Against the judgment of the division bench, the appeals are filed (i) by  

the  candidates  (102  in  number)  who were  appointed  as  Assistant  Public  

Prosecutors on the basis of the impugned selection made by the Commission  

(and who were not parties in the writ petitions, or the intra court appeals  

before the court) and (ii) by the Gujarat Public Service Commission.

6. Before  proceeding  to  examine  the  facts  of  the  case  and  the  rival  

contentions of the parties, it may be stated that on behalf of the respondents,  

it was accepted that the direction by the division bench of the High Court to  

draw up the  merit  list  ignoring  the  minimum qualifying  mark separately  

fixed for the viva voce may not be sustainable as that would be contrary to  

the statutory rules governing the selection and appointment. The only course  

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left open, therefore, was to scrap the entire selection process and start from  

the beginning all over again.

7. Coming  to  the  facts  of  the  case,  it  is  interesting  to  note  how the  

process of filling up the posts of Assistant Public Prosecutor in such large  

numbers was put into motion. From a limitation petition, for condoning the  

inordinate delay of 1695 days in filing a State criminal appeal, it came to  

light that there was acute shortage of Assistant Public Prosecutors and as a  

result, the functioning of the subordinate criminal courts in the State badly  

suffered. The High Court took up the matter and on its initiative, the State  

Government sanctioned 180 new posts of Assistant Public Prosecutors. After  

due  consultation  with  the  Gujarat  Public  Service  Commission  and  the  

concerned authorities of the State Government, the Advocate General of the  

State, assured the High Court that all the newly sanctioned posts and the  

vacancies existing in the already sanctioned cadre (242 in total) would be  

filled up in a time bound manner on the basis of rules especially framed for  

the purpose as a one time measure. The statements made by the Advocate  

General before the High Court are recorded in the order dated October 08,  

2008,  passed  by  a  division  bench  of  the  High  Court  in  Criminal  

Miscellaneous Application No.13937 of 2007 in Criminal Appeal No.487 of  

2006. From the order of the High Court it appears that the Advocate General  

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stated before the court that selection would be made on the basis of a written  

test followed by oral interviews and minimum qualifying marks would be  

fixed  for  the  tests.  The  relevant  passage  in  the  High  Court  order  is  as  

follows:

“….  Shri  Trivedi,  learned  Advocate  General,  in  consultation  with  the  Secretary,  GPSC,  has  further  submitted  that  approximately three times of number of posts to be filled in,  starting from top to bottom, the applicants will  be called for  Oral Interviews. However, minimum qualifying marks will be  prescribed  and  the  aforesaid  will  also  be  reflected  and/or  notified in the Advertisement…..”   

8. The High Court passed the order incorporating the statements made  

by the Advocate  General  and directed the  concerned authorities  to make  

appointments  on  all  the  available  posts  of  Assistant  Public  Prosecutor  

following the time schedule given in the order.

9. In furtherance of the Advocate General’s assurance given to the court  

and in compliance with the court’s  direction on that  basis,  a  set  of rules  

called the Assistant Public Prosecutor, Gujarat General State Service Class II  

Recruitment (Examination) Rules, 2008 (for short “the Recruitment Rules”)  

were framed by the State Government under the proviso to Article 309 of the  

Constitution  of  India  and  published  in  the  Gujarat  Government  Gazette,  

Extraordinary,  dated,  August  6,  2008.  Rule  12 of  the  Recruitment  Rules  

dealing with the nature of examination provided as under:

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“Nature of Examination   12 (1) The  examination  shall  be  in  two  parts  as  shown  in  Appendix. Part I shall be written examination and Part II shall  be viva-voce and Personality Test. (2)   The  Commission  shall  fix  the  qualifying  marks  to  be  obtained  by  a  candidate  in  Part-I  of  the  examination  in  Appendix  and  shall  call  only  those  candidates  who  fulfil  qualifying standard for Viva-voce and Personality Test. Provided  that  candidates  belongs  to  the  Scheduled  Castes,  Scheduled  Tribes  or  Socially  and  Educationally  Backward  Classes including Nomadic Tribes and Denotified Tribes, may  be summoned for viva-voce and Personality Test by applying  relaxed standard in Part-I of the examination if the Commission  is  of  the  opinion  that  sufficient  number  of  candidates  from  those communities are not likely to be called for viva-voce and  personality  test  on  the  basis  of  the  qualifying  standard  for  general category in order to fill up the vacancies reserved for  such categories.  (3)  The  commission  shall  fix  the  qualifying  marks  to  be  obtained by a  candidate  in  the  viva-voce  and personality  test. (4) The candidate shall be required to attend the written part of  the examination and viva-voce and personality test at his own  expense; (5)  If  the  candidate,  who  is  qualified  for  the  viva-voce  and  personality  test,  fails  to  attend the  viva-voce and personality  test, shall not be eligible for selection.”

  (emphasis added)

10. Rule 14 dealt with the result of the examination and in sub-rule (1)  

provided as follows:

“Result of Examination  14(1)  After  two  stage  of  the  examination  are  over,  the  commission shall prepare the result arranging the marks of the  candidates seriatim according to merit taking into consideration  the  total  marks  obtained  by  the  candidates  as  per  the  qualifying standards fixed for the written examination and  

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viva-voce  and  personality  test  and  shall  declare  a  list  of  qualified candidates accordingly.”

                                                                                    (emphasis added)

At the end of the Recruitment Rules there was an Appendix in two parts.  

Part I contained the details concerning the written examination which would  

consist of five papers with an aggregate of 600 marks; part II provided that  

there would be a viva voce and personality test of 75 marks.  

11. After  the  Recruitment  Rules  were  framed  and  notified,  the  

Commission  on  October  17,  2008  issued  an  advertisement  inviting  

applications for filling up 242 posts of Assistant Public Prosecutor (Class II).  

Of the 242 posts available, 122 were to be filled up on open merits and the  

remaining  was  reserved  for  the  different  reserved  categories.  Under  the  

marginal  heading,  “Particulars  of  Examination”,  it  was  stated  that  the  

examination would consist of two parts, i.e., written (objective test) and oral  

interview. The question paper of written examination (Part I) would be of  

300 marks. In connection with the second part of the examination relating to  

the oral interview it was stated as follows:

“PART- II     Oral Interview- 30 Marks  

The candidate obtains minimum 105 marks in the written  examination  i.e.  as  decided  by  the  Commission,  and  the  candidate  who  fulfils  the  educations  qualifications,  age,  experience,  etc.,  as  mentioned  in  the  advertisement  shall  be  called for the oral interview in exact numbers and there shall be  

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30  marks  for  the  oral  interview.  The  final  result  of  this  examination shall be published as per the recruitment rules.  

The  examination  is  of  objective  aptitude  type,  the  provision of re-checking is not adopted. The final result of the  examination shall be furnished on the basis of the total marks  obtained in written as well as oral examination/interview….

12. Two things are to be seen from the advertisement. One, though in the  

Recruitment Rules, 600 marks were allotted for the written examination and  

75 for the viva voce, in the advertisement the written examination was given  

300 and viva voce 30 marks. The second, though the minimum qualifying  

mark of 105 out of 300 was fixed for the written examination, no qualifying  

mark was fixed separately for the viva voce as required by rule 12 (3) of the  

Recruitment Rules. Nevertheless, there was a broad and general stipulation  

that,  “the  final  result  of  this  examination  shall  be  published  as  per  the  

recruitment rules”.  

13. The first discrepancy in regard to the allotment of marks to the written  

and  oral  tests  respectively,  though  not  quite  vital,  was  rectified  by  the  

notification dated October 24, 2008, issued by the State Government, under  

the proviso to Article 309 of the Constitution. By this notification, rule 19  

was added at the end of the Recruitment Rules which reads as under:

“19.  Notwithstanding  anything  contained  in  these  rules,  the  competitive examination, held by the Commission pursuant to  the  advertisement  issued  during  the  year  2008  for  the  recruitment to the post specified in rule 3, shall be the multiple  

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choice objective type written examination for 300 marks from  the subjects mentioned in Papers I, II, III, IV and V in Part I of  the Appendix, Provided that  (i) For papers I and II of the Gujarati and English in Part I of  

the  Appendix  respectively  except  grammar,  all  other  topics be deemed as excluded.

(ii) In Part II Viva-voce and Personality Test, the maximum  of 75 marks, shall be read as 30 marks and  

(iii) The provisions  of  rules  12,13,14 and 16 shall  apply  mutatis mutandis to such competitive examination”     

                                                                                  (emphasis added)

14. The written test was held by the Commission on January 11, 2009 and  

its result was published on March 20, 2009 by giving out the roll numbers  

(and  not  the  names)  of  the  qualifying  candidates.  Approximately  5,550  

candidates sat for the written examination out of which 790 candidates were  

short-listed for being called for the oral interview. After the publication of  

the result of the written test the marks obtained by the short-listed candidates  

were kept in a sealed cover.

15. At this stage, while preparations were underway for holding the viva  

voce of the short-listed candidates, in the meeting held on April 22, 2009, it  

was  decided  that  in  terms  of  rule  12(3)  of  the  Recruitment  Rules,  the  

Commission was required to decide the minimum qualifying marks for the  

viva voce. Accordingly, on April 23, 2009, the Secretary to the Commission  

submitted the proposal together with a copy of the Rules for order of the  

Commission and on the same day the Commission took the decision fixing  

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10  out  of  30  as  the  minimum  qualifying  mark  for  the  viva  voce.  The  

proceedings of the Commission dated April 23, 2009 read as follows:  

“The  Commission  has  taken  following  decision  after  discussion.

The  Commission  shall  decide  qualifying  marks  to  be  obtained  by  the  candidate  in  interview  under  rule  12(3)  of  Recruitment (Examination) Rules (Page No.5/C) for this post.  Accordingly, the Commission is supposed to decide minimum  qualifying marks  for  considering the  candidate  successful,  in  interview.  Hence,  after  careful  consideration the Commission  decides  that  to  get  out  of  the  maximum  30  marks  of  the  interview, 10 marks as minimum qualifying marks.

The intimation of this decision may be given in time, to  every  candidate  before  they  appear  in  interview.   For  this  purpose the Commission gives its approval for procedure to be  followed  as  per  suggestion  made  in  paragraph  No.3  shown  against-  on  previous  page.   Further,  this  decision  may  be  displayed  on notice  board  in  such a  proper  way  that  all  the  concerned persons may get intimated. It may please be noted  that it may get published tomorrow.

Sd/- Member Sd/- Chairman [Shree Variya] (Shree Bhavsar]

23.4.09    23.4.09

                                                                              Sd/- Secretary                                                                                     23.4.09

                                                                              J.S./D.S. Sd/- (Jt.Secretary)

                                                                              24.4.09  

The details to be displayed on Notice board as well as  taken in to register in consonance with the above decision is  submitted for approval.

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1. Following details may be displayed on notice board.

           As per rule 12(3), the Commission has decided the  minimum  qualifying  10  marks  out  of  30,  for  the  candidate  appearing  in  interview  (Viva-Voce)  of  Assistant  Public  Prosecutor Class-II.  The candidate getting less marks than the  this may not be eligible for selection.  Which may be please  noted.

         Make a note in the register as below, in which signatures  of the candidates are being taken at the time of interview.”

16.  Here it needs to be clarified that normally the Gujarat Public Service  

Commission consists of a Chairperson and four members but at that time the  

positions of three members were vacant and only a Chairman and a member  

comprised the Commission. Hence, the proceedings are shown to have been  

signed by the Chairman and one member.

17. In accordance with the Commission’s direction, the decision fixing 10  

out of 30 marks as the minimum qualifying mark for the viva voce was put  

up on the notice board. Further, each candidate was individually intimated  

and was made to sign a declaration/consent form before going for the oral  

test.  The  consent  form  bore  the  following  declaration  under  which  the  

candidates were required to put their signatures:

“Under  recruitment  rules  12(3)  the  commission  has  prescribed 10 qualifying marks to be obtained by candidates out  of 30 in viva-voce test for appointment to the post of Assistant  Public  Prosecutor  (Class –II)  and  it  is  to  be noted that the  candidates who will secure less than 10 marks will not be  

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eligible  for  recruitment  to  the  post  of  Assistant  Public  Prosecutor.”

                                                              (emphasis added)

18. The forms signed by each of the candidates are on record.

19. The viva voce of all the 790 short listed candidates was held from  

April 27, 2009 to July 9, 2009. On July 15, 2009, marks of the written test of  

the candidates who were called for interview were taken out of the sealed  

cover and on July 16, the Commission declared the final result as per Rule  

14(1).

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  

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“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.

21. We are unable to accept or even to follow the allegation based on the  

figures as cited above. It is necessary to bear in mind that no objection can  

be taken to the fixing of the cut off mark separately for the viva voce as that  

is the mandate of the statutory rules governing the recruitment. What alone  

can be objected to is the omission to specify the cut off mark for viva voce  

in the advertisement and fixing it later on. But we fail to see any connection  

between the “anomalies” and the fact that the cut off mark for viva voce was  

fixed at a later stage, though before the commencement of the interviews and  

with due intimation to all the candidates.

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22. Further,  as  noted  above  the  marks  obtained  by  the  short  listed  

candidates in the written test were kept in a sealed cover and those were  

taken out only after the oral interview of all the candidates was over. At the  

time a candidate appeared for the interview the members of the interview  

board had no means to know the mark obtained by him/her in the written  

test.  In  such  a  situation  we  don’t  see  how  it  could  be  possible  for  the  

interview board to purposefully exclude a candidate by giving less than the  

minimum qualifying mark for the viva voce even though he/she might have  

been selected on the basis of the mark obtained in the written test alone.

23. When playing around with numbers one is quite likely to come up  

with some figures that might appear unusual and unexpected but that alone  

will not make out a case of bias or legal malafide (See the decision by a  

bench  of  four  judges  of  this  Court  in  Ashok  Kumar  Yadav  v.  State  of   

Haryana, (1985) 4 SCC 417, paragraph 21). In the facts of the case as noted  

above we are satisfied that the examples cited by the respondents do not  

show that there was any arbitrariness or play of bias in giving marks to the  

candidates  in  the  viva  voce  or  that  there  was  any  flaw in  the  selection  

process making it liable to be struck down.

24. Mr.  Viswanathan,  senior  advocate,  appearing  for  the  respondents  

submitted that the Advocate General had undertaken before the High Court  

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that the qualifying marks for both the written test and the viva voce would  

be published in the advertisement. He further submitted that sub-rule (2) of  

rule 12 provided for fixing the minimum qualifying mark for the written test  

in the same way as sub-rule (3) provided for fixing the minimum qualifying  

mark for the viva voce. He argued that the provisions of sub-rules (2) and (3)  

of rule 12 could not be read and given effect to differently and when the  

minimum  qualifying  mark  for  the  written  test  was  specified  in  the  

advertisement  there  was  no  reason  for  not  indicating  the  minimum  

qualifying mark for the viva voce in the advertisement itself.

25. The  grievance  of  Mr.  Viswanathan  cannot  be  said  to  be  wholly  

without substance.  It is true that the better and the more proper way to give  

effect to the provision of rule 12 (3) of the Recruitment Rules was to specify  

the minimum qualifying mark for the viva voce also in the advertisement  

itself.   But  that  was  not  done.   The  question  is  what  would  be  the  

consequence of the omission and was it open to the Commission to rectify  

the error by fixing the minimum qualifying mark for the viva voce later on  

and giving intimation of its decision to each of the candidates appearing for  

the oral interview before the beginning of the test.

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  

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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.”

27. In  our  view,  both  the  decisions  relied  upon  in  support  of  the  

respondents’ case are completely distinguishable and have no application to  

the facts of this case. K. Manjusree was a case of selection and appointment  

to the posts of District & Sessions Judge (Grade II) in the Andhra Pradesh  

Higher  Judicial  Service.   The  selection  and  appointment  to  the  post  of  

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District & Sessions Judge was governed by the resolutions of the High Court  

and the resolution dated November 30, 2004 decided the method and manner  

of  selection.   It  resolved  to  conduct  the  written  examination  for  the  

candidates for 75 marks and oral examination for 25 marks.  It also resolved  

that  the  minimum  qualifying  marks  for  the  O.C.,  B.C.,  S.C.  and  S.T.  

candidates  would  be  as  prescribed  earlier.  Following  the  written  

examination,  the  qualified  candidates  were  called  for  interview  before  a  

committee of five judges. After the interview, the select committee of five  

judges prepared a merit list on the basis of the aggregate of marks obtained  

by each of the candidates in the written test and the oral interview.  At that  

stage, the select committee did not apply any cut off mark for the viva voce.  

The  list  prepared  by  the  select  committee  was  approved  by  the  

administrative committee and it finally came before the Full Court of the  

High  Court.   The  Full  Court  decided  to  have  the  matter  reviewed  by  a  

committee of two judges constituted by the Chief Justice of the High Court.  

It  was  at  that  stage that  the  committee  of  two judges  decided  that  there  

should have been a minimum qualifying mark for the oral interview as well,  

in the same ratio as prescribed for the written test.  It, accordingly, decided  

that only those candidates who secured the minimum of 12.5 out of 25 (for  

the open category), 10 marks (for B.C. candidates), and 8.75 marks (for SC  

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and  ST  candidates)  would  be  considered  as  having  succeeded  in  the  

interview. The decision of the committee of two judges was approved by the  

Full Court and consequently, the earlier list prepared by the select committee  

and approved  by the  administrative  committee  was  revised  and the final  

recommendation for appointment was made by the High Court on the basis  

of the revised merit list.  It was in those facts that this Court held that the  

introduction of the cut off mark for the viva voce after the oral interviews  

were over amounted to changing the rules of the game in mid-play and was  

not permissible in law.  The passage from paragraph 33 of the judgment  

relied upon by the respondents must be understood in the facts of the case.

28. The decision in Hemani Malhotra is equally inapplicable to the facts  

of the case. Hemani Malhotra was a case of selection and appointment to the  

vacant posts in the Delhi Higher Judicial Service and those appointments too  

were  governed by the  administrative  resolutions  of  the  High Court.   For  

filling  up  the  posts,  the  Registrar  General  of  the  High  Court  issued  an  

advertisement  that  laid  down  that  the  minimum  qualifying  mark  in  the  

written  examination  would  be  55% for  general  candidates  and  50%  for  

scheduled castes and scheduled tribes candidates.  In the advertisement there  

was no indication at all about any cut off mark for the oral interview.  After  

the written examination, no result was published giving out the names or roll  

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numbers  of  the  qualified  candidates  but  the  successful  candidates  were  

called to appear for the oral interview individually through letters. After the  

date fixed for oral interview was postponed three or four times the selection  

committee of the High Court resolved that it  was desirable to prescribe a  

minimum mark for the viva voce and referred the matter to the Full Court.  

The Full Court accepted the suggestion made by the select committee and  

resolved that for recruitment to the Delhi Higher Judicial Service from the  

Bar the minimum qualifying mark in the viva voce will be 55% for general  

candidates and 50% for scheduled castes and scheduled tribes candidates.  

After  the  decision,  interviews  were  held  but  significantly  the  candidates  

were kept in dark about the decision fixing the cut off mark for the viva  

voce.   The High Court prepared the select  list  applying the cut off mark  

fixed for viva voce but the candidates who appeared for the oral interviews  

still did not know why they were not selected despite getting higher marks.  

It was only through applications made under the Right to Information Act  

that some of the unselected candidates were able to gather that their non-

selection was on account of their failure to secure the cut off mark in the  

viva voce and then the  selection was challenged before the  Court.   It  is  

evident  that  the  facts  of  the  case  in  hand  are  entirely  different  and  the  

decision in Hemani Malhotra has no application to this case.  

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29. Mr.  Viswanathan  also  relied  upon  the  decision  of  this  Court  in  

Ramesh Kumar v.  High Court of Delhi and another,  (2010) 3 SCC 104.  

This  decision  also  has  no  relevance  to  the  facts  of  the  present  case.  In  

Ramesh Kumar, what this Court said is that for appointment to the judicial  

services,  in the absence of any contrary provision in the relevant rules  

Delhi High Court should not have fixed any minimum qualifying marks for  

the viva voce because this Court had accepted Justice Shetty Commission’s  

report  which had prescribed not  to  have any cut  off  mark for interview.  

Actually what is said in paragraph 15 of the judgment in  Ramesh Kumar  

demolishes the case of the respondents:

“15. 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.

30. Having, thus, made the legal position clear, the judgment in paragraph  

16 went on to say:

“16. In  the  instant  case,  the  Rules  do  not  provide  for  any  particular  procedure/criteria  for  holding  the  tests  rather  it  enables the High Court to prescribe the criteria.  This Court in  All India Judges’ Assn. (3) v. Union of India, [(2002) 4 SCC  247], accepted  Justice  Shetty  Commission’s  Report  in  this  regard which had prescribed for not having minimum marks for  

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interview.  The Court further explained that to give effect to the  said  judgment,  the  existing  statutory  rules  may  be  amended.  However, till the amendment is carried out, the vacancies shall  be filled as per the existing statutory rules. A similar view has  been  reiterated  by  this  Court  while  dealing  with  the  appointment of Judicial Officers in  Syed T.A. Naqshbandi v.  State of J&K [(2003) 9 SCC 592]  and  Malik Mazhar Sultan  (3) v.  U.P. Public Service Commission [(2008) 17 SCC 703].  We have also accepted the said settled legal proposition while  deciding the connected cases i.e.  Rakhi Ray v. High Court of   Delhi [(2010) 2 SCC 637] vide judgment and order of this date.  It has been clarified in Rakhi Ray that where statutory rules do  not  deal  with  a  particular  subject/issue,  so  far  as  the  appointment  of  the  Judicial  Officers  is  concerned,  directions  issued by this Court would have binding effect.”  

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.  

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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.

32. In  light  of  the  discussions  made  above  we  find  that  the  Division  

Bench of the High Court took a wrong view of the matter and its judgment  

and order are quite unsustainable. We, accordingly, set aside the impugned  

judgment and dismiss all the writ petitions filed by the respondents before  

the Gujarat High Court.

33. In the result, the appeals are allowed but with no order as to costs.

.........................................J  (AFTAB ALAM)

.........................................J  (R.M. LODHA)

New Delhi, July 5, 2011.

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