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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 4255-58 of 2014

 Bishnu Biswas & Ors. ... Appellants   

Versus

Union of India & Ors. ...Respondents

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.

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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,  

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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.

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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., AIR1987 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.  

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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.”

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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:-

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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.

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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.  

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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  must  

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examine 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 marks  

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out 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.  

In view of the above, the appeals are devoid of merit and are  

accordingly dismissed. No costs.  

…………………………….J.                                                                         (Dr. B.S. Chauhan)

…………………………….J.                                                                         (J. Chelameswar)

New Delhi, April 2, 2014.  

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