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[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,

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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

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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 14 th 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.”

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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

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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,

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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

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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

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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

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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

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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

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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

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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