Full Judgment Text
‘ REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2779 OF 2022
(Arising out of SLP (C)No. 3587 of 2018)
GOA PUBLIC SERVICE COMMISSION Appellant(s)
VERSUS
PANKAJ RANE & ORS. Respondent(s)
J U D G M E N T
K. M. JOSEPH, J.
Leave granted.
(1) By Advertisement No. 14/16 published by the appellant,
applications were invited for filling up of six posts of
unreserved category and three posts in the reserved category
under the Goa Civil Service Rules, 2016 (hereinafter
referred to as ‘the Rules’). Pursuant to the advertisement,
1866 candidates appeared in the Computer Based screening
Test (CBRT) held on 05.03.2017. When the results were
declared, only seven candidates including respondent Nos. 1
to 3 before this Court were found to have cleared the test.
In terms of the advertisement and the Rules, the written
Signature Not Verified
Digitally signed by
Nidhi Ahuja
Date: 2022.04.12
17:45:22 IST
Reason:
test came to be conducted on 10.04.2017 and 11.04.2017. In
the results which came to be declared, out of the seven,
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only four candidates were found qualified. Respondent Nos.
1 to 3 were among them. There is one Mr. Vivek Krishna Naik
who, no doubt, stood first. On 16.05.2017, the appellant
decided to fix the cut off marks with respect to the
interview. The total marks fixed for the interview was 40.
The appellant fixed cut off marks at 26. The final
interview took place on 24.05.2017. Mr. Vivek Krishna Naik
was declared successful. The results of respondent Nos. 1
to 3 were not declared. Respondents took up the matter
before the Chairman of the appellant pointing out the
irregularities besides moving the Chief Secretary.
Applications were made under the Right to Information Act
seeking the information as to why results were not
published. This was done by respondent No. 1. We cut the
long story short by indicating that on 21.07.2017, a fresh
advertisement came to be issued inviting applications for 10
posts of Junior Scale officer of Goa Civil Services.
(2) Respondent Nos. 1 to 3 filed writ petition on
22.07.2017. By the impugned judgment, the High Court has
allowed the writ petition and has ordered as follows:
“24. We note that in the affidavit in reply, not
obtaining minimum qualifying marks in oral interview
pursuant to the decision in the meeting dated 16 May
2017 is the sole reason not to send the names of the
Petitioners to the Respondent-State. No other reason
than the qualifying marks at the interview is shown to
us.
25. In these circumstances, we hold that the action of
the Respondent No. 1-Commission is not recommending
the names of the Petitioners to the post of Junior
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Scale Officer of the Goa Civil Services on the ground
that they have not secured 65% minimum qualifying
marks in the oral interview, is illegal and beyond the
powers of the Respondent No. 1-Commission. The
decision taken by Respondent No. 1-Commission in the
meeting dated 16 May 2017 introducing criteria of 65%
minimum qualifying marks at the interview for the post
of Junior Scale Officer in the Goa Civil Service,
therefore, cannot be sustained and it is quashed and
set aside. The Respondent No. 1-Commission will take
necessary steps as per Rule 12 of the Rules of 2016 on
the basis of the consolidated marks of the Petitioners
in the written examination and oral interview without
attaching any qualifying criteria to the marks
obtained at the oral interview. The Respondent No. 1-
Commission will take necessary steps within eight
weeks from the date the order is uploaded to the
server.”
(3) In the appeal, we have heard Shri Pratap Venugopal,
learned counsel appearing on behalf of the appellant, Mr.
Devadatt Kamat learned senior counsel appearing for
respondent No. 1, Mr. Siddharth Dave, learned senior counsel
for respondent No. 2, and Mr. Vinay Navare, learned senior
counsel appearing for respondent No. 3.
(4) Learned counsel for the appellant would complain that
the High Court has erred in placing reliance on the
judgments which the High Court has indeed placed reliance
on. The case of the appellant is built around the failure
of the respondents to obtain the minimum marks as prescribed
by the Commission which, according to the Constitution, it
has the power to do. The Commission is tasked with the job
of conducting the recruitment of candidates and to recommend
their names. There is nothing illegal with the Commission
in such an event, at fixing a bar and a fairly high bar with
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which alone, the Commission would be in a position to
procure services of the best candidates for appointment in
the State service. This is part of its constitutional
imperative flowing from Article 320 of the Constitution.
The marks for the examination and interview were indicated
in the Advertisement. It is pointed out that the decision
of this Court in K. Manjusree v. State of A.P. & Anr. (2008)
3 SCC 512 is distinguishable with reference to the facts
which actually arose for consideration in the said case.
Learned counsel also drew our attention to the judgment of
this Court in Yogesh Yadav v. UOI & Ors. (2013) 14 SCC 623.
We notice that the attempt made by the appellant based on
the said judgment before the High Court did not yield
success. The learned counsel also drew our attention to the
judgment of this Court in M.P. Public Service Commission v.
Navnit Kumar Potdar (1994) 6 SCC 293. Finally, Shri Pratap
Venugopal also pointed out that three learned Judges in Tej
Prakash Pathak and Others v. Rajasthan High Court and Others
(2013) 4 SCC 540 have referred the issue relating to the
correctness of the judgment in K. Manjusree (supra) to a
larger Bench. The matter is pending consideration before
the larger Bench. Number of cases have been referred.
(5) Mr. Pratap Venugopal, learned counsel, also contends
that as far as respondent No. 3 is concerned, there is an
additional factor which would weigh against him. It is
pointed out that under the Rules formulated, knowledge of
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Konkani language is an essential qualification. This
requirement is reiterated in the advertisement. It is
pointed out that a counter affidavit was filed in the High
Court and in the counter affidavit, the proceedings of the
Board which took the interview have been produced which
clearly brings out the fact that respondent No. 3 was not
found proficient in the Konkani language which proficiency
was an inflexible requirement in the Rules and the
advertisement.
(6) Per contra , Mr. Devadatt Kamat, learned senior counsel
for respondent No. 1, would point out that on the facts
obtaining in this case, the case on all fours is covered by
a catena of judgments beginning with the decision in P. K.
Ramachandra Iyer v. UOI (1984) 2 SCC 141. In other words,
it is pointed out that with reference to the statutory rules
in question which governed the destiny of the respondents,
this Court would have to discountenance the case of the
appellant Commission. The rules in question according to
respondent No. 1 are similar to the rules which was
considered in P. K. Ramachandra Iyer ’s case (supra). What
is more, the same line of argument appealed to a later Bench
in the decision reported in Durgacharan Misra v. State of
Orissa (1987) 4 SCC 646. It is pointed out by Mr. Kamat,
learned senior counsel, that the decision of this Court in
State of Haryana v. Subhash Chander Marwaha (1974) 3 SCC 220
which apparently forms the basis for the view taken in Tej
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Prakash Pathak and Others (supra) did not involve the Rule
similar to Rule 12 of the Rules obtaining in the facts of
this case. The facts in Tej Prakash Pathak and Others
(supra) also did not involve a statutory injunction as is
contained in Rule 12 of the Rules applicable in the facts of
this case. He would submit that it is not the law that when
the matter is referred to a larger Bench, the decision which
is under a cloud ceases to possess its binding nature. What
is more, having regard to the distinction in facts and the
similarity which the facts of this case bears with the facts
in P. K. Ramachandra Iyer ’s case and Durgacharan Misra ’s
case (supra), etc., this case can be dealt with by this
Court without having to refer the same to the larger Bench.
(7) Shri Siddartha Dave, learned senior counsel appearing
on behalf of the respondent No. 2, would also adopt the same
line of reasoning.
He would, in fact, firmly contend that there is no
power with Public Service Commission to dilute the mandate
of the Rules. This is not a case he points out where there
were a large number of candidates who have been found
eligible after the conduct of the written examination and as
part of the need to trim the number of candidates to be
finally considered, the Commission took a decision to resort
to a separate minimum in the interview in this regard. He
drew support from the judgment which is reported in State of
Punjab and Others v. Manjit Singh and Others (2003) (11) SCC
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559.
(8) Mr. Vinay Navare, learned senior counsel, drew our
attention to Article 309 of the Constitution. He drew our
attention to the word “recruitment”. He proceeded to
further refer to Article 320 and he pointed out that the
role of Commission is to be appreciated with reference to
Article 320(3)(a) and 320(3)(b). In other words, he would
ascribe a limited role to the Commission viz., to conduct
examination under Article 320 (1) which, no doubt, he agrees
would also include right to conduct interview. He would,
therefore, adopt the arguments of the other senior counsel
and submit that a careful perusal of the Rule which is made
under Article 309 of the Constitution would show that the
impugned judgment is only to be supported.
He would further rely on the judgment of this Court in
Durgacharan Misra ’s case (supra). As far as respondent No.
3 not possessing the essential qualification is concerned,
he would submit that no such case was set up in the High
Court. When queried about the production of the proceedings
of the Selection Board which took the interview, he would
submit that it may not suffice as a careful perusal of the
counter affidavit filed in the High Court which is produced
along with an affidavit filed in this Court in January 2022
by the appellant, would not show that the appellant has
taken any specific contention denying the right of the
respondent No. 3 to be placed in the select list on the
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score that he did not possess the essential qualification as
alleged. He would further contend that even in the special
leave petition, there is no ground taken that respondent No.
3 was not qualified on the said score. He would point out
that allowing such a contention to be urged at this stage
would cause grave miscarriage of justice as far as
respondent No. 3 is concerned. He is taken by surprise and
had it been raised before the High Court as such, it could
have been dealt with at that stage he complains. This is
besides pointing out that a perusal of the impugned judgment
does not show that the appellant attempted to engage the
High Court on this question which is sought to be raised.
It is not a pure question of law which could be raised for
the first time.
ANALYSIS
(9) The High Court has proceeded with this matter on the
basis of a conspectus of the Rules. The Rules in question,
in turn, are the Rules made under Article 309 and they are
the Goa Civil Service Rules, 2016.
If we notice Rule 10 to begin with, Rule 10 reads as
follows:
“10. Competitive examination for direct recruitment. -
(1) The Competitive Examination for direct recruitment
shall comprise a written examination and an Oral
Interview. The Competitive Examination shall be
conducted by the Commission, in the manner notified by
the Government, from time to time:
Provided whenever the Goa Public Service
Commission is of opinion of conducting screening test
required for shortlisting of candidates, the same
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should be conducted by the Commission in a manner
decided by the Commission from time to time.
(2) Whenever Competitive written examination for the
direct recruitment to the Junior Scale post of Service
is conducted by the Commission, the results of such
written examination shall be declared by the
Commission by displaying the same prominently on the
notice board and website of the Commission.
(3) The minimum passing percentage for competitive
written examination shall be 65 percent of the total
marks, the passing percentage for candidates belonging
to Scheduled Castes and Scheduled Tribes shall be
minimum 55 percent of the total marks and Other
Backward Class, Differently Abled Persons and for
Children of Freedom Fighters, it shall be minimum 60
percent of the total marks.
(4) The Commission shall invite five times the number
of candidates as against the number of vacancies
advertised, for the oral interview purely on merit
with due regard to the policy on reservation. In case
there are more candidates securing the same number of
marks as the last candidate, all such candidates shall
also be called for the oral interview.
(5) Marks to be allotted for written examination and
oral interview shall be notified in advance in the
advertisement inviting applications by the Commission.
(6) Such oral interview shall be conducted under CCTV
surveillance or videography and the proceedings
thereof shall also be videorecorded and such recording
shall form a permanent record of the Commission.
We may also advert to Rule 12:
“12. List of successful candidates. - (1) The
Commission shall forward to the Government a select
list, arranged in the order of merit of the candidates
which shall be determined in accordance with the
aggregate marks obtained by each candidate at the
competitive written examination and oral interview:
Provided that if two or more candidates have secured
equal number of marks in the aggregate, their order of
merit shall be in the order of the marks secured by
the candidates in the written examination and if the
candidates have secured equal marks in the written
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examination then order of merit shall be as per their
date of birth and if in case the date of birth is also
the same then the candidate possessing higher
educational qualifications will be placed higher in
the merit list.
(2) The Commission while drawing the list of selected
candidates shall restrict the select list of
candidates to the extent of declared number of
vacancies.
(3) The select list drawn by the Commission shall be
valid for a period of one year from the date of
receipt of the same by the Government.
(4) The Commission shall, in addition to the select
list, also prepare a separate wait list up to 10 % of
the vacancies based on the merit of the candidates in
their respective category:
Provided further that the candidates from the wait
list may be recommended to the Government only on
requisition being made by the Government if the
candidates recommended earlier are unablne to accept
the offer of appointment for any reason. Such wait
list shall not be operative for any additional number
of posts, other than those advertised. The wait list
shall lapse on the declaration of the date of a
subsequent examination for the same category or after
a period of one year from the date of preparation of
such wait list, whichever is earlier.”
(10) Rule 10 contemplates the holding of a competitive
examination and oral interview. The competitive examination
is to be conducted by the appellant in the manner notified
by the Government from time to time as pointed out by Mr.
Vinay Navare, learned senior counsel. The proviso provides
the appellant with the power to hold a screening test
required for shortlisting of candidates. The manner in
which it is to be held is a matter to be decided by the
Commission from time to time. It is most pertinent to note
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that Rule 10(3) specifically declares that a candidate must
obtain a minimum passing percentage in the competitive
written examination. It is pegged at 65 per cent of the
total marks. The percentage is purportedly reduced in the
case of certain categories.
Next, we must notice that Rule 10(5) declares the
marks to be allotted for written examination and oral
interview is to be notified in the advertisement inviting
the applications by the Commission. Here, as Mr. Pratap
Venugopal, learned counsel, rightly points out the
Commission cannot be found to have acted contrary to the
Rules insofar as, the Commission has, in the advertisement,
declared the marks to be alloted for the written examination
and oral interview. What is conspicuous by its absence in
Rule 10 is any minimum to be obtained by any candidate in
the interview. The matter does not end here.
(11) Bearing considerable resemblance as we shall presently
see with the law in the facts is the decision of this Court
starting with P. K. Ramachandra Iyer (supra), Rule 12
declares that the Commission is duty bound to forward to the
Government the select list. The select list is to be
arranged in the order of merit of the candidates. The
select list is to be sent arranged in the order of merit
which, in turn, is to be determined in accordance with the
aggregate marks obtained by each candidate at the
competitive written examination and oral interview. The
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rule maker was conscious of the fact that it has prescribed
a separate minimum to be obtained by candidate in the
written examination. It also contemplated the holding of an
interview but as regards the interview a separate minimum
was not stipulated. But at the same time, the law giver has
contemplated that the Commission is to prepare a select list
wherein merit would dictate the order in which the select
list is to be prepared and all that it is to do is to total
up the marks obtained by the candidate in the competitive
written examination and the oral interview. In other words,
the merit list would be dictated by the performance in the
competitive examination and interview subject only, no
doubt, to the qualification that only those candidates who
have obtained 65 marks in the written examination would be
qualified. We need not be detained by the proviso to Rule
12.
(12) Rule 12(2) further provides that in drawing the list
of selected candidates it shall limit itself to the declared
number of vacancies. Wait list is also contemplated. It is
on a consideration of the statutory Rules that the High
Court has taken the view that the case must be decided in
terms of P. K. Ramachandra Iyer (supra) and Durgacharan
Misra (supra) apart from K. Manjusree (supra).
(13) We may notice in P. K. Ramachandra Iyer (supra), the
following:
“43. The relevant rules are Rules 13 and 14 of the
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1977 Rules, which may be extracted:
“13.Candidates who obtain such minimum marks in the
written examination as may be fixed by the Board in
their discretion shall be summoned by them for viva
voce.
14. After the examination, the candidates will be
arranged by the Board in the order of merit in each
category (professional subjectwise) as disclosed by
the aggregate marks finally awarded to such candidates
and such candidates as are found by the Board to be
qualified by the examination shall be recommended for
appointment upto the number of unreserved vacancies
decided to be filled on the result of the
examination.”
44. Mr Ramachandran, learned counsel for the
petitioner contended that Rule 13 does not envisage
obtaining of minimum marks at the viva voce test even
though it contemplates obtaining minimum marks at the
written test so as to be eligible for being called for
viva voce test. It was further urged that Rule 14
specified the manner in which merit list is to be
arranged. Rule 14 provides that after both written and
viva voce tests are held, the candidates will be
arranged by the Board in the order of merit in each
category (professional subjectwise) as disclosed by
the aggregate marks finally awarded to each candidate
and such candidates as are found by the Board to be
qualified by the examination shall be recommended for
appointment upto the number of unreserved vacancies
decided to be filled on the result of the examination.
On a combined reading of Rules 13 and 14, two things
emerge. It is open to the Board to prescribe minimum
marks which the candidates must obtain at the written
test before becoming eligible for viva voce test.
After the candidate obtains minimum marks or more at
the written test and he becomes eligible for being
called for viva voce test, he has to appear at the
viva voce test. Neither Rule 13 nor Rule 14 nor any
other rule enables the ASRB to prescribe minimum
qualifying marks to be obtained by the candidate at
the viva voce test. On the contrary, the language of
Rule 14 clearly negatives any such power in the ASRB
when it provides that after the written test if the
candidate has obtained minimum marks, he is eligible
for being called for viva voce test and final merit
list would be drawn up according to the aggregate of
marks obtained by the candidate in written test plus
viva voce examination. The additional qualification
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which ASRB prescribed to itself namely, that the
candidate must have a further qualification of
obtaining minimum marks in the viva voce test does not
find place in Rules 13 and 14, it amounts virtually to
a modification of the rules. By necessary inference,
there was no such power in the ASRB to add to the
required qualifications If such power 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. It however does not appear in the
facts of the case before us that because of an
allocation of 100 marks for viva voce test, the result
has been unduly affected. We say so for want of
adequate material on the record. In this background we
are not inclined to hold that 100 marks for viva voce
test was unduly high compared to 600 marks allocated
for the written test. But the ASRB in prescribing
minimum 40 marks for being qualified for viva voce
test contravened Rule 14 inasmuch as there was no such
power in the ASRB to prescribe this additional
qualification, and this prescription of an
impermissible additional qualification has a direct
impact on the merit list because the merit list was to
be prepared according to the aggregate marks obtained
by the candidate at written test plus viva voce test.
Once an additional qualification of obtaining minimum
marks at the viva voce test is adhered to, a candidate
who may figure high up in the merit list was likely to
be rejected on the ground that he has not obtained
minimum qualifying marks at viva voce test. To
illustrate, a candidate who has obtained 400 marks at
the written test and obtained 38 marks at the viva
voce test, if considered on the aggregate of marks
being 438 was likely to come within the zone of
selection, but would be eliminated by the ASRB on the
ground that he has not obtained qualifying marks at
viva voce test. This was impermissible and contrary to
rules and the merit list prepared in contravention of
rules cannot be sustained.
(14) We must next notice Durgacharan Misra (supra):
“6. Rules 16, 17, 18 and 19 are the relevant rules
which have a material bearing on the question that
falls for determination. These rules read as under:
“16. The Commission shall summon for the viva voce
test all candidates who have secured at the written
examination not less than the minimum qualifying marks
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obtained in all subjects taken together which shall be
30 per cent of the total marks in all the papers:
Provided that government may after consultation with
the High Court and Commission fix higher qualifying
marks in any or all of the subjects in the written
examination in respect of any particular recruitment.
17. The Chief Justice or any of the other Judges of
the High Court nominated by the Chief Justice shall
represent the High Court and be present at the viva
voce test and advise the Commission on the fitness of
candidates at the viva voce test from the point of
view of their possession of the special qualities
required in the judicial service, but shall not be
responsible for selection of candidates.
18. The marks obtained at the viva voce test shall be
added to the marks obtained in the written
examination. The names of candidates will then be
arranged by the Commission in order of merit. If two
or more candidates obtain equal marks in the
aggregate, the order shall be determined in accordance
with the marks, secured at the written examination.
Should the marks secured at the written examination of
the candidate concerned be also equal, then the order
shall be decided in accordance with the total number
of marks obtained in the optional papers.
19. (1) The Commission shall then forward to the
government in the Law Department the list of
candidates prepared in accordance with Rule 18
indicating therein whether a candidate belongs to
Scheduled Caste or Scheduled Tribes.
(2) The list prepared shall be published by the
Commission for general information.
(3) The list, unless the Governor in consultation with
the High Court otherwise decides, shall ordinarily be
in force for one year from the date of its preparation
by the Commission.”
7. The rule-making authorities have provided a scheme
for selection of candidates for appointment to
judicial posts. Rules 16 prescribes the minimum
qualifying marks to be secured by candidates in the
written examination. It is 30 per cent of the total
marks in all the papers. The candidates who have
secured more than that minimum would alone be called
for viva voce test. The Rules do not prescribe any
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such minimum marks to be secured at the viva voce
test. After the viva voce test, the Commission shall
add the marks of the viva voce test to the marks in
the written examination. There then, Rule 18 states:
“The names of candidates will then be arranged by the
Commission in the order of merit”.
11. In the light of these decisions the conclusion is
inevitable that the Commission in the instant case
also has no power to prescribe the minimum standard at
viva voce test for determining the suitability of
candidates for appointment as Munsifs.
15. The Rules have been framed under the proviso to
Article 309 read with the Article 234 of the
Constitution. Article 234 requires that the
appointment of persons other than District Judge to
the Judicial Service of State shall be made by the
Governor of the State. It shall be in accordance with
the Rules made by the Governor in that behalf after
consultation with the State Service Commission and
with the State High Court. The Rules in question have
been made after consultation with the Commission and
the State High Court. The Commission which has been
constituted under the Rules must, therefore faithfully
follow the Rules. It must select candidates in
accordance with the Rules. It cannot prescribe
additional requirements for selection either as to
eligibility or as to suitability. The decision of the
Commission to prescribe the minimum marks to be
secured at the viva voce test would, therefore, be
illegal and without authority.
(15) A question may arise whether the Public Service
Commission can depart from the Rules in this regard. Light
is shed by the views expressed by this Court in Manjit Singh
and Others (supra). We may refer to the following
exposition made by this Court.
“9.
………………………………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………………………….
Where no special qualification or any prescribed
standard of efficiency over and above the eligibility
criteria is provided by the Rules or the State, it
would not be for the Commission to impose any extra
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qualification/standard supposedly for maintaining
minimum efficiency which, it thinks, may be necessary.
………………………………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………………………..
10. As observed earlier, for the purpose of
shortlisting it would not at all be necessary to
provide cut-off marks. Any number of given candidates
could be taken out from the top of the list up to the
number of the candidates required in order of merit.
For example, there may be a situation where more than
the required number of candidates may obtain marks
above the cut-off marks, say for example, out of
10,000 if 8000 or 6000 candidates obtain 45% marks
then all of them may have to be called for further
tests and interview etc. It would in that event not
serve the purpose of shortlisting by this method to
obtain the given ratio of candidates, and the vacancy
available. For 100 vacancies at the most 500
candidates need be called. If that is so, any
candidate who is otherwise eligible up to the 500th
position, whatever be the percentage above or below
the fixed percentage would be eligible to be called
for further tests. Thus the purpose of shortlisting
would be achieved without prescribing any minimum cut-
off marks.
11. In the case in hand, it was not for the Commission
to have fixed any cut-off marks in respect of the
reserved category candidates. The result has evidently
been that candidates otherwise qualified for interview
stand rejected on the basis of merit say, they do not
have up-to-the-mark merit as prescribed by the
Commission. The selection was by interview of the
eligible candidates. It is certainly the
responsibility of the Commission to make the selection
of efficient people amongst those who are eligible for
consideration. The unsuitable candidates could well be
rejected in the selection by interview. It is not the
question of subservience but there are certain matters
of policies, on which the decision is to be taken by
the Government. The Commission derives its powers
under Article 320 of the Constitution as well as its
limits too. Independent and fair working of the
Commission is of utmost importance. It is also not
supposed to function under any pressure of the
Government, as submitted on behalf of the appellant
Commission. But at the same time it has to conform to
the provisions of the law and has also to abide by the
rules and regulations on the subject and to take into
account the policy decisions which are within the
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domain of the State Government. It cannot impose its
own policy decision in a matter beyond its purview.”
(16) In this regard, we must notice that in the facts of
this case of the 1866 candidates who appeared in the
screening test / computer test, only 7 candidates which
included respondent Nos. 1 to 3 cleared the test. The
number stood further reduced to 4 and which again included
respondents Nos. 1 to 3. Therefore, when the question arose
as to how the interview should be conducted, the Commission
decided on 16.05.2017 to fix 26 marks out of 40 as cut off
marks. It no doubt works out at 60 per cent of the total
marks in the interview segment. Rules did not provide for a
separate minimum for the interview. The advertisement did
not provide for a separate minimum in the interview. It is
almost a week before the interview that the Commission took
the decision in this regard. We have stated these facts
only to highlight that this is not a case where the
Commission was faced with the task of having to interview a
very large number of candidates. For 6 unreserved posts and
5 reserved posts finally, only 4 emerged as candidates to be
dealt with at the final stage viz., the oral interview.
This, therefore, is distinguishable, in other words, from
the judgment relied upon by Mr. Pratap Venugopal, learned
counsel for the appellant viz. M.P. Public Service
Commission (supra). That was a case where this Court noted
that the appellant Commission therein noting the large
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number of applications received from the General Category
candidates against four posts decided to call only 71
1/2
applicants who had 7 years of practice although 188
applicants were eligible, in view of the fact that under
Section 8(3)(c) of the provisions applicable in the said
case, five years of practice as an Advocate or pleader of
Madhya Pradesh was a minimum requirement. It was therefore,
a case which though relied upon by the appellant is
distinguishable on facts. This is apart from noticing that
the appellant has not been able to inform the Court as to
whether there was a Rule in the said case similar to Rule 12
as present in this case. As far as Yogesh Yadav (supra) is
concerned, this again is not a case which involved a Rule
resembling Rule 12 of the Rules. We further may also notice
that in the said case recruitment was carried out by the
employer itself and it was not done by the recruiting body
which the appellant is and which is limited by statutory
rules made under Article 309 of the constitution.
(17) Para 13 of Yogesh Yadav (supra) is extracted
hereinbelow:
13. The instant case is not a case where no minimum
marks are 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. The entire selection was undertaken in
accordance with the aforesaid criterion which was laid
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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 a
benchmark was not stipulated for giving the
appointment. What is done in the instant case is that
a decision is 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 the game. On the
contrary in the instant case a decision is taken to
give appointment to only those who fulfilled the
benchmark prescribed. The fixation of such a benchmark
is permissible in law. This is an altogether different
situation not covered by Hemani Malhotra case [ Hemani
Malhotra v. High Court of Delhi , (2008) 7 SCC 11 :
(2008) 2 SCC (L&S) 203] .
(18) Though learned counsel for the appellant did
emphasise the said observations, we are of the view that it
is distinguishable at any rate having regard to Rule 12
which we have already noticed which is applicable to the
facts of this case.
In other words, we would think that in the facts of
this case, they are closer to the facts of the case in P. K.
Ramachandra Iyer case and judgment following the same which
we have already noted. As far as Tej Prakash Pathak and
Others case is concerned, it again did not specifically
involve a Rule similar to Rule 12.
(19) It is true that there is a distinction in the
facts with those of the case in K. Manjusree (supra). We
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notice that that was a case where the requirement of minimum
marks for interview was made after the entire selection
process consisting of the written examination and interview
was completed and noticing the facts, the Court declared
that it would amount to changing the Rules after process is
completed. In this case, the stipulation as to the minimum
to be obtained in the interview was announced prior to the
holding of the interview. However, we would think that this
case must fall to be decided on the principle which has been
laid down in P. K. Ramachandra Iyer (supra) and Durgacharan
Misra (supra) for the reasons which we have already
indicated.
(20) As far as the question relating to the respondent No.
3 not being in possession of the essential qualification, we
may notice the following:
It is true that under the Rules, knowledge of K onkani
is declared as an essential qualification which the
advertisement also reiterates. The interview was held. The
writ petition was filed by all respondents together. The
contention which appears to have engaged the High Court in
the impugned judgment related to the power of the appellant
to stipulate for a separate minimum in the interview. The
impugned judgment does not reflect even in the slightest way
any attempt on the part of the appellant to non-suit the
third respondent on the ground that apart from there being
no merit in the contention of respondents that Commission
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did not have the power to stipulate for a separate minimum,
respondent No. 3 was even otherwise disqualified. We do not
find even a whisper of such a case in the impugned judgment.
We further notice that there is no case that the appellant
has urged this as a ground in the special leave petition.
It is true in objection filed in this case in this Court in
January, 2022, the appellant has produced what is described
as its pleadings in the High Court. We have perused the
pleadings. The appellant has not been able to specifically
point out any allegation as such dealing with the
ineligibility of respondent no. 3 on the ground that he is
not possessed of the essential qualification of the kind
complained of. It is true also no doubt that the question
as to whether a candidate is qualified, in that, he is
having knowledge of the Konkani language would appear to be
tested in the interview. It is equally true that it is an
essential qualification. But as to whether a person would
be disqualified on the ground that he was not having
particular essential qualification in the facts is a pure
question of fact. This is not seen pleaded as such. We
reiterate that the impugned judgment does not show that the
appellant has urged this before the High Court. Apart from
the proceedings of the Selection Board, there is no record
produced to show that respondent No. 3 was disqualified on
this ground.
We would therefore, think that it may not be
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appropriate to permit the appellant to raise this question.
(21) We do think that the respondents are justified in
pointing out that the High Court is right in not permitting
the appellant to contend that the respondents cannot be
treated as entitled to be recommended. The question however
may arise as to what is the nature of the relief which can
be granted. We notice from the reliefs which have been set
out in the writ petition that it is as follows:
“(A) This Hon’ble Court be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any
other appropriate writ, order or direction, commanding
the Respondent No. 1 to prepare a Select List in terms
of the Advertisement No. 14/2016 and make
recommendations to the Government on the basis of the
said Select List in accordance with law;
(B) This Hon’ble Court also be pleased to issue an
appropriate writ, order or direction, to quash and set
aside the Advertisement dated 21.07.2017 bearing No.
7/2017.
(C) Pending the hearing and final disposal of this
Petition, this Hon’ble Court be pleased to stay the
execution and operation of the entire Selection
Process pursuant to the Advertisement No. 7/2017 dated
21.07.2017;
(D) Ad-interim relief in terms of prayer clause (C);
(E) Any other relief, as deemed fit and proper may
please be granted in favour of the Petitioners herein;
(F) For costs.”
We have already noticed the relief granted by the High
Court.
(22) There is yet another aspect which we must consider.
As already noticed, even before the filing of the writ
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petition, the Commission commenced fresh proceedings.
While there is a stay of the impugned judgment, this Court
had made it clear that the appointments will be subject to
the outcome of the special leave petition.
Since the appellant fails in its challenge to the
impugned order, the respondents must finally obtain redress.
Accordingly, while we dismiss the appeal, we reiterate the
directions contained in the impugned order and it is for
Appointing Authority to take the decision in accordance with
law in the matter.
The appeal is dismissed without any orders as to
costs.
Appellant will forward the list in terms of the
directions by the High Court within a period of four weeks
from today. Respondent No. 4 will take a decision on the
same in accordance with law within a further period of six
weeks from the date of the receipt of the list from the
appellant.
………………………………………………………………., J.
[ K.M. JOSEPH ]
………………………………………………………………., J.
[ HRISHIKESH ROY ]
New Delhi;
April 06, 2022.
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