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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO….1099.…….OF 2013 (@ out of  SPECIAL LEAVE PETITION (CIVIL) NO. 8707/2012 )

Rajya Sabha Secretariat & Ors.             …       Appellants

            Versus

Subhash Baloda & Ors.                              …      Respondents

J U D G  E M E N T

H.L. Gokhale J.

Leave Granted. 2. This  appeal  raises  the  question  with  respect  to  the  

scope  of  judicial  review  in  the  matter  of  selections  and  

appointments made by Public Authorities. A learned Single Judge  

of  the  Delhi  High  Court  has  found-fault  with  the  process  of  

selection of Security Assistants Grade-II, conducted, in the year  

2009, by the Joint Recruitment Cell  of the Parliament of India

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(Appellant No. 3), for the Rajya Sabha Secretariat and Lok Sabha  

Secretariat (Appellant Nos. 1 & 2).  By his judgment and order  

dated 1.9.2011, rendered in Writ petition (C) 4835/2011 filed by  

the Respondents (unsuccessful candidates) he has directed the  

appellants  to  consider  the  claim  of  the  Respondents  for  

selection,  by  the  process  approved  by  him.   The  appeal  

therefrom, filed by the appellants herein, being LPA No. 839 of  

2011 has been dismissed by a Division bench of that High Court  

by its judgment and order dated 29.11.2011, which has led to  

the present appeal by special leave.

Facts leading to this appeal:-

3.  This  appeal  arises  on  the  background  of  following  

facts.  Sometime in the year 2009, Appellant No. 3 issued an  

advertisement  bearing  No.  04/2009,  inviting  applications  for  

various  posts  such  as  those  of  Research  Assistants,  Junior  

Parliamentary  Reporters,  Stenographers,  Translators,  Security  

Assistants Grade-II, and Junior Clerks.  In the present matter we  

are concerned with the posts of Security Assistants Grade-II.  In  

this advertisement, 37 vacancies were advertised in the cadre of  

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Security Assistants Grade-II,  in the Lok Sabha Secretariat, and  

19 vacancies in the Rajya Sabha Secretariat.  

4.  The scheme of the examination for these posts was  

also incorporated in the advertisement. The examination for the  

recruitment of Security Assistants Grade-II was to be conducted  

in four stages. They were as follows:-

(1) Preliminary Examination,

(2) Physical Measurement and Field Tests,

(3) Descriptive Type Written Papers,

(4) Personal Interview

The candidates were expected to be graduates in any  

discipline, provided they met the requisite physical requirements  

as  per  the  Lok  Sabha  and  Rajya  Sabha  Rules.   As  per  the  

approved scheme of  the  examination,  the  recruitment  of  the  

candidates depended on their performance in each of the four  

stages.  Each test was an elimination round for the subsequent  

test.   The  candidates  were  required  to  attain  the  prescribed  

standards, and to qualify in each of the stages.  However, the  

marks  secured  by  them  in  the  third  and  fourth  stage,  viz.  

descriptive type written paper and personal interview, were to  

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be considered for determining the inter-se seniority in the merit  

order for selection.

5. (i) The advertisement specified as ‘desirable’, certain  

additional qualifications, which were as follows:-

“Desirable: ‘C’ Certificate in NCC or sportsmen of   distinction who have represented a State or  the  Country at  the National  or  International  level  or   who have represented a University in recognised   inter-university tournament.

Note:  In  case  of  vacancies  in  Rajya  Sabha  Secretariat:

(i) Certificate in computer course recognised   by AICTE/DOEACC or courses equivalent to   ‘O’ Level in terms of syllabus and duration   of course as prescribed by DOEACC, is also   a desirable qualification.

(AICTE- All India Council for Technical Education) (DOEACC-  Department  of  Electronics  Accreditation of Computer Courses)”

(ii) The advertisement specifically stated that for these posts:  

“Personal  interview  will  carry  25  marks.   Candidates  will  have  to  secure  the  minimum  qualifying marks in the Personal Interview.”

(iii)  Para  XV  of  the  advertisement  laid  down  the  cut  off  

percentage of marks.  This para reads as follows:-

“XV.CUT  OFF  PERCENTAGE  OF  MARKS:  The  minimum cut of percentages of marks in Written Test   and Personal Interview in an examination is 50%, 45%  and  40% for  vacancies  in  GENERAL,  OBC and  SC/ST  

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categories  respectively.   The  above  percentages  are   relaxable  by  5%  in  case  of  physically  handicapped   persons  of  relevant  disability  and  category  for   appointment  against  the  vacancies  reserved  in  Lok   Sabha Secretariat for physically handicapped persons.   These  percentages  are  the  minimum marks  which  a   candidate  is  required  to  secure  in  each   paper/component and aggregate in the written test and   in aggregate in the personal interview.  However, the   cut-off  percentages  may  be  raised  or  lowered  in   individual  component/paper/aggregate  to  arrive  at   reasonable vacancy: candidate ratio.”

6. Out of the candidates who wrote the descriptive type  

written paper,  68 candidates secured the minimum qualifying  

marks, and were called for the personal interview of 25 marks.  

The break-up of marks for Personal Interview was as follows:-

” a) Dress, manners and appearance 6 marks b) Behaviour in communication  6 marks

(whether courteous and disciplined) c) General awareness and knowledge of duties

involved security service 6 marks d) Skill and Extra-curricular activities 5 marks

I. NCC C- Certificate 5 marks II. Sports International level/national level 5 marks University Level 4 marks

e) Certificate in computer operations 2 marks ”

7. It  is  the  case  of  the  appellant  that  the  breakup  of  

these  marks  for  the  personal  interview was  approved  by  the  

Secretary Generals of both Lok Sabha and Rajya Sabha, in 2001.  

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The  candidates  who  were  called  to  appear  for  the  personal  

interview were sent call-letters, specifically informing them that  

they had to bring the original certificates of NCC/Sports or the  

certificate of the computer course.  Specimen call-letter dated  

3.5.2011  sent  to  a  candidate  is  reproduced  herein  below.  It  

reads as follows:-

“PARLIAMENT OF INDIA     (JOINT RECRUITMENT CELL)

RECRUITMENT TO THE POST OF SECURITY  ASSISTANT GRADE-II IN LOK SABHA AND  

RAJYA SABHA SECRETARIATS PARLIAMENT HOUSE ANNEXE,

NEW DELHI-110001 No. 7/3/SA-II(open)-JRC/2010

Dated: the 3rd May 2011

CALL LETTER On the basis of your performance in the Physical   

Measurement Tests,  Field Tests and Descriptive Type   Written Papers held in December 2010, you have been   declared  successful  for  appearing  in  the  Personal   Interview to be held on Sunday, the 29th May, 2011 in  Parliament House Annexe, New Delhi.

2. Your Roll Number is 105999. 3. You are requested to be present at 9.30 A.M.   

sharp  at  the  Reception  Office,  Parliament  House   Annexe, New Delhi, from where you will be conducted   to the venue of interview.

4. You are also required to bring the following   documents/testimonials  for  verification at the time of   Personal Interview:-

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(i) Original  certificates  of  Matriculation  or   equivalent examination as proof of date of birth.

(ii) All  original  certificates  of  Educational  and  other qualifications.

(iii) All original certificates of NCC/Sports. (iv)  Original certificate of Hill area resident, if any,   

issued by the competent authority. (v) Original  Caste  Certificate  issued  by  the   

competent  authority  (in  case  of  SC,  ST  and  OBC  candidates).

5. In  case,  a  candidate  has  done  a  computer  course,  he/she  should  bring  the  original  certificate  thereof  at  the  time  of   Personal Interview.  However, the credit for the  same shall be given only if it is accompanied by a   declaration by the concerned institute that the  computer  course  done  by  the  candidate  is  recognised by the All India Council for Technical   Education  (AICTE)/Department  of  Electronic  Accreditation of Computer Courses (DOEACC) or   the course is equivalent to ‘O’ level in terms of   syllabus and duration of course as prescribed by  DOEACC.

6. The  minimum  qualifying  marks  in  Personal   Interview  are  50%,  45%  and  40%  for  vacancies  in   General, OBC and SC/ST categories, respectively.

7. Selection will be made on the basis of overall   performance of the candidates in the descriptive type   written papers and the personal  interview, subject to   the availability of vacancies.

8. The  decision  of  the  Joint  recruitment  Cell   regarding  allocation  of  the  successful  candidates  to   either  the Lok Sabha or  the Rajya Sabha Secretariat   shall be final.

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9. You should bring this call letter to the venue   of Personal Interview without fail.

      Sd/-   (A.S.K. DAS) Under Secretary”

(emphasis  

supplied)

8. In was pointed out on behalf of the appellants that at  

the  time  of  the  interview  the  exercise  of  checking  the  

certificates  was  undertaken  by  the  officers  of  the  Joint  

Recruitment  Cell,  by  verifying  the  documents  prior  to  the  

personal  Interview.  The  officers  simply  assisted  the  interview  

board,  and  saved  their  time.  This  exercise  was  done  in  the  

presence of all the candidates, and they had the full knowledge  

thereof.  A candidate producing the ‘C’ Certificate of NCC was  

entitled  to  full  5  marks.  Similarly  a  candidate  producing  the  

computer course certificate was entitled to 2 marks. There was  

no  discretion  in  awarding  these  marks.  These  marks  were  

deemed to be awarded by the members of the interview board.  

After the checking of the certificates and the oral interview, 27  

candidates  were  selected  for  the  posts  of  Security  Assistants  

Grade-II  for  Lok Sabha as against 37 vacancies,  and 13 were  

selected for Rajya Sabha as against 19 vacancies.

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9. The  respondents  were  some of  the  candidates  who  

participated in this process but were not selected.  They filed a  

Writ Petition in the High Court of Delhi bearing Writ Petition (C)  

No.  4835  of  2011.   The  respondents  principally  raised  two  

contentions:  (1)  firstly,  that  the splitting of  the marks,  in  the  

interview,  was  not  indicated  to  them  in  advance,  and  (2)  

secondly, attainment of minimum cut-off marks (say 50% for the  

general category) be adjudged out of 18 marks ear-marked for  

the oral interview, and the marks for the NCC or the computer  

course certificates be considered only thereafter.

10. The appellants herein pointed out before the Learned  

Single Judge that the issue was no longer res-integra, and had  

been decided in a judgment rendered by a Single Judge of the  

Delhi  High  Court  in  the  case  of  Mahesh Kumar  & Anr.  Vs  

Union of India 151 (2008) Delhi Law Times 353.  It was a  

case of selection to the very cadre of Security Assistants Grade-II  

in the Rajya Sabha Secretariat, in the year 2006.  The judgment  

of the Learned Single Judge, which was confirmed by a Division  

Bench,  had held that  prescribing the minimum cut-off  for  the  

skills in the interview could not be faulted.  The Learned Single  

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Judge had also observed that the decision to assign minimum  

50% marks for the interview was arrived at ‘in a thorough and  

scientific manner.’  

11. In  the  present  matter,  the  Learned  Single  Judge,  

however, distinguished the case before him from the decision in  

Mahesh  Kumar  (supra)  by  holding  that  no  arguments  were  

advanced  in  that  case  that  the  splitting  up  of  the  interview  

marks (as 18 +7) was not justified, and that in any event it was  

not  specified  in  the  advertisement.  The Learned Single  Judge  

held that the question of fairness of the selection process was  

not raised in that matter and therefore, he could go into it, since  

the doctrine of sub-silentio operates as an exception to the rule  

of  precedent.   He  relied  upon  two  decisions  of  this  Court  in  

State of U.P. Vs. Synthetics and Chemicals Ltd.  reported  

in 1991 (4) SCC 139 and Union of India Vs. Dhanwanti Devi  

reported in 1996 (6) SCC 44 in support.

12. Having  decided  to  go  into  this  issue,  the  Learned  

Single  Judge  in  terms  held,  in  para  25 of  his  Judgment,  that  

allotting 7 marks for the certificates out of the 25 marks for the  

interview had resulted in elimination of those candidates who  

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had otherwise obtained the minimum qualifying marks out of 18  

marks.  He further held that even if marks were to be given for  

the  certificates,  they  ought  to  have  been  in  addition  to  the  

qualifying marks, and ought not to have been used to eliminate  

those  who  had  otherwise  qualified  as  per  the  marks  in  the  

remaining portion of the interview.

13. The Learned Judge, thereafter, held in paragraph 26  

as follows:-

“26. The action of the Respondent in applying the   criteria  of  minimum qualifying percentage to  twenty- five marks and not to 18 marks which related to the   actual  interview  and  that  too  without  disclosing  this   change either in the advertisement or to the candidates   before the interview is arbitrary and violative of Article   14 of  the  Constitution.   It  has  resulted  in  the unfair   elimination of  those Petitioners  who have scored the   minimum  qualifying  percentage  (50%  for  General   Category, 45% OBC and 40% SC/ST) in both the written   test as well as in the actual interview.”

14. The Learned Single Judge allowed the petition by his  

judgment and order dated 1.9.2011, but confined the benefit of  

his judgment and order to the petitioners before the court, and  

directed that on applying the criteria as suggested by him, if any  

of the petitioners are found to have qualified, they be offered  

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appointments to the posts either in Lok Sabha or in the Rajya  

Sabha Secretariat.

15. The  appellants  carried  the  matter  in  Letters  Patent  

Appeal to the Division Bench which accepted the view-point that  

had appealed to the Learned Single Judge.  The Division Bench  

dismissed the L.P.A No. 839 of 2011 by its judgment and order  

dated 29.11.2011.  The Division Bench, however, extended the  

benefit of the principle laid down by the Learned Single Judge  

across  the  board  to  all  those  who  had  participated  in  the  

selection process.   The Division Bench went  further  ahead in  

another aspect.  With respect to the marks for participation in  

NCC  or  having  done  the  computer  course,  it  observed  as  

follows:-

“3………  It  was  believed  by  us  that  mere  participation in NCC/Sports and/or undergoing a course   in Computer Operations would not entitle a candidate   to the maximum marks of 5 & 2 respectively prescribed   therefor and it was for the Interview Board to assess   the  proficiency  and  extent  of  participation  of  the   candidate in the respective fields and the marks to be   allocated therefore may vary from zero to five in case   of NCC/Sports and zero to two in the case of certificate   in Computer Operations………”

16. The  Division  Bench,  therefore,  accepted  the  

proposition  laid  down  by  the  Single  Judge  that  the  eligibility  

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marks for interview were to be computed out of 18 marks only.  

It further directed that where the proficiency in NCC/Sports or in  

computer course was to be judged by the Interview Board, those  

marks  be  added  in  the  range  of  zero  to  five  as  per  its  

observations in paragraph 3 quoted above. Being aggrieved by  

these two judgments this appeal has been filed.

Submissions by the rival parties:

17. Mr. R.K. Khanna, Learned Senior Counsel appearing for  

the appellant submitted that the Learned Single Judge as well as  

the Division Bench have gone into an area where they ought not  

to have gone, while exercising judicial review.  In his submission,  

the advertisement had clearly stated that the C-certificates in  

NCC  or  the  Sport  certificates  or  the  certificates  in  computer  

course were ‘desirable’.  The call letter specifically called upon  

the candidates to come with the original certificates.  How the  

marks  ought  to  be given,  out  of  25  interview marks,  was an  

aspect to be decided by the interview board.  He pointed out  

that even so, to avoid arbitrariness, the splitting of the marks  

was effected as per the decision of the Secretaries of Lok Sabha  

and  Rajya  Sabha,  arrived  at  way  back  in  2001.   Previous  

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selections were also done on that basis in 2006, and they were  

upheld by a Single Judge and a Division Bench of  Delhi  High  

court.  It was, therefore, not expected of the High Court to go  

into that controversy once again.  In any case assuming that the  

controversy  could  be  gone  into  afresh,  while  deciding  the  

petition  the  Court  had gone into  the question as  to  how the  

interview  board  ought  to  have  given  the  marks,  which  was  

outside the scope of judicial review.  Secondly, the Court ignored  

that the marks were given to the certificates uniformly, and in  

that there was no discrimination whatsoever.  In his submission,  

there was no occasion for the court to impose its reading of the  

relevant requirements on to the interview board.

18. Ms. Jyoti Singh, learned senior counsel appearing for  

the respondents, on the other hand submitted that the Learned  

Single Judge of the High Court was right in holding that Mahesh  

Kumar (supra) had not considered the issue in the manner in  

which it was placed before the High Court in the present matter.  

The advertisement clearly meant an interview of 25 marks. The  

splitting of the marks of interview under various categories was  

not informed to the respondents anytime prior to the interview.  

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If  the oral  interview was of 18 marks,  then the cut-off  marks  

ought to have been assessed out of 18 marks, and the marks for  

the  certificates  ought  to  have been added subsequently.  The  

manner in which the marks for the interview were allotted was  

arbitrary,  and  it  resulted  into  denial  of  equal  opportunity  in  

public employment.  She, therefore, submitted that the decisions  

of the High Court did not call for interference by this Court.

Consideration of the submissions:

19. The first submission of Mr. Khanna has been that the  

procedure adopted by the appellants had been approved by the  

High  Court  earlier  in  Mahesh  Kumar (supra)  and  the  same  

procedure was being followed this time also.  He submitted that  

if  we look into the judgment  in  Mahesh Kumar (supra),  the  

same pattern of allotment of marks for the posts in this very  

cadre is reproduced in para 14 of the judgment.  In the present  

matter  also  the  single  Judge  has  accepted  in  para  15  of  his  

judgment that the qualification requirements in both the cases  

were  the  same.   On  the  format  of  allotting  the  marks  the  

Learned Single Judge observed in Mahesh Kumar is as follows:-

“17. For recruiting candidates to a particular post   a  procedure is  prescribed by the experts  in  the field   

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after  carrying out the necessary research taking into   consideration the requirement of the job and nature of   employment.  One should not lose sight of the fact that   if the selection process is divided into series of steps   then each step has a purpose to serve and has been   included with an objective,  be it  written test/physical   test or an interview……..  The procedure devised by  the  respondent  eliminates  arbitrariness  to  a   great  extent  as  it  is  not  just  the  whim of  the   members of the interview board.  There is proper  format for evaluation which is almost akin to another   written  examination.   The  format  for  evaluation  has  different marks for different traits which are detailed in   earlier paragraph.

………. 29. In  the  present  case,  the  norms  were   

approved by the Secretary Generals of the Lok Sabha   and  Rajya  Sabha  and  in  order  to  minimize  any  arbitrariness  or  personal  perception,  separate  marks   were  allocated  for  dress;  manners  and  appearance;   behaviour  in  communication(whether  courteous  and   disciplined);  general  awareness  and  knowledge  of   duties  involved  in  security  services;  skill  and   extracurricular activities.  In the oral interview, the  marks  were  also  to  be  given  on  the  basis   whether the candidates had participated either  in NCC or sports or paramilitary forces and the  weightage  was  also  given  for  knowledge  of  computer operations.  With this detailed breakup of  different heads under which, in the interview the marks   were  awarded  to  the  candidates,  it  is  reasonable  to   infer that while assigning minimum 50% marks in viva   voce;  the  decision  was arrived  at  in  a  thorough and   scientific manner……”

(emphasis  supplied)

The judgment of the Learned Single Judge in  Mahesh Kumar  

was  left  undisturbed  by  the  Division  Bench.   Mr.  Khanna,  

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therefore,  submitted  with  emphasis  that  once  the  scheme of  

selection  was  approved  by  the  Division  Bench,  the  Learned  

Single Judge in the present matter ought not to have entertained  

the contention that the submissions raised in the present matter  

were not raised earlier.  

20. It  was  also  submitted  that  the  respondents  having  

participated in the selection process, it was not permissible for  

them  to  challenge  the  recruitment  process  subsequently.  

Reliance was placed upon the judgment of this Court in Manish  

Kumar Shahi Vs. State of Bihar & Ors.  reported in  2010  

(12) SCC 576 in that behalf.

21. As against the submissions of the appellants, the  

submission  of  the  respondents  has  been  that  although  they  

secured high marks in the overall  performance i.e the written  

test  and  the  interview  combined,  they  found  that  other  

candidates  were  selected  though  they  had  overall  less  merit  

than them, and yet they were shown as having secured higher  

marks.  After making an enquiry under the Right to Information  

Act, they came to know that the selected candidates were given  

more marks for their having the NCC and /or Computer Course  

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Certificates, leading to the selection of candidates having less  

merit.  They contended that the method of splitting up of marks  

was not informed to them.  This was unjust, discriminatory and  

violative of Articles 14 and 16 of the Constitution of India.

22. The Learned Single Judge in his impugned Judgment  

has  referred  to  the  cases  of  K.  Manjushree  Vs.  State  of  

Andhra Pradesh reported in  2008 (3) SCC 512  and  Himani  

Malhotra Vs. High Court of Dehi  reported in  2008 (7) SCC  

11.  The factual situation in these two cases is however, quite  

different  from the  one  in  the  present  case.   In  Manjushree  

(supra),  the minimum cut-off  marks were prescribed after the  

interviews were over, and after the first merit list was prepared.  

In  Himani  Malhotra  (supra)  there  was  no  indication  in  the  

advertisement  about  the  minimum  qualifying  marks  for  the  

interview  and  the  same  were  introduced  by  the  selecting  

committee after the written test was over and after the date for  

oral interview was postponed.

23. The question before us is whether the interview board  

can be faulted for making the certificate marks a component of  

the  25  interview marks,  and whether  thereby  the  candidates  

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were in any way taken by surprise.  In this connection we must  

note that the appellants had advertised that the NCC/Sports and  

Computer  certificates  were  ‘desirable’.   The  call-letter,  in  

paragraph 5 thereof, specifically called upon the candidates to  

bring their certificates at the time of the Personal Interview. It  

further stated that credit for the same shall be given only if the  

certificate was accompanied by a declaration by the concerned  

institute that the course done by the candidate was recognized  

by AICTE or DOEACC. Thus, it was clear that credit was to be  

given  to  those  certificates  as  a  part  of  the  interview.  The  

respondents, therefore, can not make any grievance that they  

were taken by surprise by giving of 7 (out of 25) marks for such  

certificates  to  the  successful  candidates.  Nor  can  the  

respondents say that any prejudice is caused to them, since all  

candidates  having  such  certificates  were  uniformly  given  5  

and/or  2  marks  for  the  certificates,  and  those  who  were  not  

having them were not given such marks. The process cannot,  

therefore, be called arbitrary.

24.   The  decisions  rendered  by  the  High  Court  were  

erroneous  for  one  more  reason.  In  the  present  case,  the  

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interview was to be of 25 marks.  The view which has appealed  

to the Learned Judges of the High Court would mean that the  

cut-off  marks  (say  50%)  will  have  to  be  obtained  out  of  18  

marks, whereas the advertisement clearly stated that the cut-off  

marks had to be obtained in the Written Test and the Personal  

Interview. This meant obtaining cut-off marks out of 25 marks  

set out for interview as well.  The consequence of the view which  

is accepted by the High Court will be that it may as well happen  

that candidates who did not have the NCC/Sports certificates or  

any computer course certificates will obtain higher marks out of  

18 marks, and will top the list. On the other hand the candidates  

who have these certificates may not get the cut-off marks out of  

18, or even if they get those marks, they may land at the lower  

level in the inter-se seniority in the merit order for selection. This  

was certainly not meant to be achieved by the selection process,  

when these certificates were declared in advance as ‘desirable’.

25. In  the  impugned  order  the  Division  Bench  has  

recommended  in  its  judgment,  as  quoted  above  that  the  

proficiency of the candidates producing certificates be assessed  

on a scale of 0 to 5.  That will mean holding one more test as far  

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as  computer  course  certificate  is  concerned,  or  asking  the  

candidates concerned to exhibit their skill in a particular sport or  

as  NCC  Cadet.   That  was  certainly  not  contemplated  in  the  

advertisement.   The  advertisement  only  stated  that  the  

NCC/Sport  certificate  and  the  computer  course  certificate  

recognised  by  AICTE/DOEACC  were  desirable.   The  call-letter  

specifically  stated  they  will  be  given  credit  at  the  time  of  

interview. The Joint Recruitment Cell did not want to go behind  

those certificates once they were from the proper authorities,  

and therefore, the interview board fairly granted all the marks to  

the candidates who produced those certificates, making them a  

component  out  of  25  marks.  It  cannot  be  disputed  that  the  

appellants  have applied a  uniform standard.  The respondents  

who had filed the  petition were all  constables.   The posts  of  

Security  Assistants  were  being  filled  from  amongst  them.  

Although, dress, manners and appearance was given 6 marks,  

behavior  in  communication was allotted 6 marks and general  

awareness and knowledge of duties involved in security service  

was  allotted  6  marks,  what  was  ‘desirable’  was  having  the  

NCC/Sports or Computer course certificate.  It was for the Lok  

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Sabha and Rajya Sabha Secretariat to decide what qualifications  

they expected in the Security Assistants. They did want persons  

with  Sports/NCC and  Computer  course  certificates.  Therefore,  

they  specifically  mentioned  those  certificates  as  desirable.  

Specifying 5+2 marks for these certificates was in consonance  

with the objective to be achieved. The method followed by the  

interview board in giving these certificates 7 out of 25 marks  

cannot, therefore, be faulted as denying equal opportunity in the  

matter of public employment.  Dissimilar candidates could not  

be expected to receive similar treatment. Thus, in the present  

process of selection, there is no breach either of Article 14 or 16  

of the Constitution of India.  

26. What the High Court has done is to impose its own  

reading of the requirements of the selection process on to the  

interview board.  It was for the interview board to decide which  

method to follow. The interview board had followed a particular  

pattern earlier in the year 2006, which was upheld by a Single  

Judge and the Division Bench of Delhi High Court. The interview  

board was following the same pattern.  We may at  this  stage  

refer  to  an  order  passed  by  this  Court  in  Haryana  Public  

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Service Commission Vs. Amarjeet Singh  reported in  1999  

SCC (L&S) 1451.  In that matter the issue was with respect to  

the selection for the post of Agricultural Engineers and Subject  

Matter  Specialists  in  the  Department  of  Agriculture.   The  

Haryana  Public  Service  Commission  had  allocated  marks  for  

higher qualification and specialized training to the extent of 40%  

of the marks.  The High Court had interfered therewith as being  

arbitrary  and directed  the  Commission  to  send the  names of  

Respondent Nos.  1 and 2 for  appointment after  stating as to  

what marks should have been allotted to them in the interview.  

This Court held that though the standard adopted by the Public  

Commission may be defective, the same standard was applied  

to all, and did not prejudice Respondents Nos. 1 and 2 or any of  

the candidates.  The Court observed that:-

“3…….When uniform process had been adopted in   respect  of  all  and selections  had been made,  it  was   highly  inappropriate  for  the  High  Court  to  have  examined  the  matter  in  further  detail  and  to  have   allocated marks to the two candidates and thereafter   directed the appellant Commission to select them.”

27. In  Barot  VijayKumar  Balakrishna  and  Ors.  Vs.  

Modh VinayKumar Dasrathlal and Ors. reported in 2011 (7)  

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SCC 308 the Rules framed under Article 309 of the Constitution  

governing the selection process for the posts of Assistant Public  

Prosecutor in the State of Gujarat mandated that there would be  

minimum qualifying marks each for the written test and the oral  

interview.   In  that  case  cut-off  marks  for  viva-voce were  not  

specified in the advertisement.   As observed by this Court, in  

view of that omission, there were only two courses open.  One,  

to carry on with the selection process, and to complete it without  

fixing any cut-off marks 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 rules  

governing the selection.  The other course was to fix the cut-off  

marks for the viva voce, and to notify the candidates called for  

interview.  This course was adopted by the commission just two  

or three days before the interview.  Yet, it  did not cause any  

prejudice  to  the  candidates,  and  hence  the  Court  did  not  

interfere in the selection process.  In the present matter it was  

made clear in the call letters that the relevant certificates will be  

given credit at the time of interview, since they were ‘desirable’,  

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and therefore there was no question of any prejudice or lack of  

fairness on the part of the interview board in giving the specified  

marks for the certificates.

28. Having noted this  factual  and legal  scenario,  in  our  

view there  was  nothing  wrong  in  the  method  applied  by  the  

appellants in the Selection of the Security Assistants Grade-II.  

There was no discrimination whatsoever among the candidates  

called for the interview, nor any departure from the advertised  

requirements.   One  can  always  say  that  some other  method  

would have been a better method, but it is not the job of the  

Court  to  substitute  what  it  thinks  to  be  appropriate  for  that  

which the selecting authority has decided as desirable.  While  

taking care of the rights of the candidates, the Court cannot lose  

sight of the requirements specified by the selecting authority.  

What  the  High  Court  has  proposed  in  the  impugned  orders  

amounts to re-writing the rules for selection, which was clearly  

impermissible while exercising the power of judicial review.

29. For the reasons stated above we allow this appeal and  

set-aside the impugned judgments of the Single Judge as well as  

that  of  the  Division  Bench.  Writ  Petition bearing No.  4835 of  

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2011 filed by the respondents will stand dismissed.  In the facts  

of the case however, there will be no order as to costs.  

…………..……………………..J.  [ G.S. Singhvi]

…………………………………..J.  [ H.L. Gokhale  ]

New Delhi Dated : February 11, 2013

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