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Service matter – selection process – written test 50% and interview 50% – tribunal set aside the selection process – High court though upheld the way of allotment of marks as wrong but modified the order and order the things may gone as it is as there are no malafides – Apex court confirmed the same = Bishnu Biswas & Ors. … Appellants Versus Union of India & Ors. …Respondents = 2014 (Apr.Part) http://judis.nic.in/supremecourt/filename=41375

Service matter – selection process – written test 50% and interview  50% – tribunal set aside the selection process – High court though upheld the way of allotment of marks as wrong but modified the order and order the things may gone as it is as there are no malafides – Apex court confirmed the same =

 

The interviews were conducted  and  a  final  result  sheet  was

      published.  In pursuance thereto, appointment letters were  issued  to

      the appellants herein.

      Challenging the said appointments, the  unsuccessful  candidates

      filed Original Application before  the  Tribunal  which  was  allowed,

      

quashing such appointments as equal marks were earmarked for both  the

      written examination and interview which is impermissible  in  law  and

      that the interview was never part  of  the  recruitment  process   and

      thereby ordering initiation of fresh recruitment process.

       

The appointees/appellants challenged the said order  before  the

      High Court.  

The High Court upheld the reasoning of the  Tribunal  but

      modified the order to the extent of continuing the recruitment process

      from the point it stood vitiated.

         In pursuance of the  judgment  and  order  of  the  High  Court,

      termination letters were issued to the appellants.

            Hence, these appeals.=              

However, the Court cautioned observing that  the

      awarding of higher percentage of marks to those who got lower marks in

      written test in comparison to some who had got higher marks in written

      examination,  an  adverse  inference  from  certain  number  of   such

      instances can be drawn.  However, in absence of any allegation of mala

      fides against  the  Selection  Committee  or  any  Member  thereof,  a

      negligible few such instances, would not justify  the  inference  that

      there was a conscious effort  to  bring  some  candidates  within  the

      selection zone.

      In the instant case, the rules of  the  game  had  been  changed

      after conducting the written test and admittedly not at the  stage  of

      initiation of the selection process.

 The marks allocated for the  oral

      interview had been the same as for written test  i.e.  50%  for  each.

      The manner in which marks have been awarded in the  interview  to  the

      candidates indicated lack of transparency.  

The candidate who  secured

      47 marks out of 50 in the written test had been given only 20 marks in

      the interview while large number of candidates got equal marks in  the

      interview as in the written examination.   

Candidate  who  secured  34

      marks in the written examination was given 45 marks in the  interview.

      Similarly, another candidate who  secured  36  marks  in  the  written

      examination was awarded 45 marks in the interview. 

The fact that today

      the so called selected candidates are not in  employment,  is  also  a

      relevant factor to decide the case finally. 

If the whole selection  is

      scrapped most of the  candidates  would  be  ineligible  at  least  in

      respect of age as the advertisement was issued  more  than  six  years

      ago.

            

Thus, in the facts of this case the direction of the High  Court

      to continue with  the  selection  process  from  the  point  it  stood

      vitiated does not require interference.

            

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

      accordingly dismissed. No costs.

2014 (Apr.Part) http://judis.nic.in/supremecourt/filename=41375

B.S. CHAUHAN, J. CHELAMESWAR

 

REPORTABLE

 
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4255-58 of 2014

 

 
Bishnu Biswas & Ors. … Appellants
Versus
Union of India & Ors. …Respondents

 

 

 
J U D G M E N T

 
Dr. B.S. CHAUHAN, J.

1. These appeals arise out of the common judgment and order dated
5.4.2013, passed by the High Court of Calcutta, Circuit Bench at Port
Blair in W.P.C.T. Nos.607-610 of 2012 partly allowing the appeals
against the judgment and order dated 24.8.2012, passed by the Central
Administrative Tribunal, Calcutta (Circuit Bench, Port Blair)
(hereinafter referred to as the ‘Tribunal’) allowing the O.A.
No.124/AN/2010 and quashing the appointment orders dated 5.2.2009 and
4.6.2009.
2. Facts and circumstances giving rise to these appeals are:
A. That an advertisement dated 4.2.2008 was published by the
respondent authorities calling for applications from eligible
candidates as well as from those who were registered with the
Employment Exchange for appointment to the 8 posts of Group ‘D’ staff.
The recruitment rules only provided for a written examination having
50 maximum marks.
B. The written examination was held on 25.1.2009 which was given by
870 candidates out of which 573 candidates obtained 20 and above
marks.
C. A press notice dated 27.1.2009 was issued calling the
successful candidates for interview, though such interview was not
part of the recruitment process.
D. The interviews were conducted and a final result sheet was
published. In pursuance thereto, appointment letters were issued to
the appellants herein.
E. Challenging the said appointments, the unsuccessful candidates
filed Original Application before the Tribunal which was allowed,
quashing such appointments as equal marks were earmarked for both the
written examination and interview which is impermissible in law and
that the interview was never part of the recruitment process and
thereby ordering initiation of fresh recruitment process.
F. The appointees/appellants challenged the said order before the
High Court. The High Court upheld the reasoning of the Tribunal but
modified the order to the extent of continuing the recruitment process
from the point it stood vitiated.
G. In pursuance of the judgment and order of the High Court,
termination letters were issued to the appellants.
Hence, these appeals.
3. Shri Mahabir Singh, learned senior counsel duly assisted by Ms.
Aishwarya Bhati, learned counsel appearing for the appellants has
submitted that the employer has a right to prescribe for a higher
qualification or a stringent test than prescribed under the statutory
rules in order to select the best candidates and once the selection is
over and the candidates appeared without any protest, they cannot be
permitted to make a summer salt and challenge the selection as a
whole. Thus, the judgments impugned i.e. of the Tribunal as well as
of the High Court are liable to be set aside.
4. Per contra, Shri R. Balasubramaniam, learned counsel appearing
for the respondents has opposed the appeals contending that it was not
permissible for the employer to change the rule of the game after the
selection process commenced even if the employer is entitled for
prescribing a higher qualification or a stringent test than prescribed
under the rules. In the instant case as the finding of fact has been
recorded by the courts below that there had been no transparency in
awarding the marks in interview and the interview marks could not be
same as that of the written test, the court should not grant any
indulgence in such case. Hence, the appeals are liable to be
dismissed.
5. We have heard learned counsel for the parties and perused the
record.
6. This Court has considered the issue involved herein in great
detail in Ramesh Kumar v. High Court of Delhi & Anr., AIR 2010 SC
3714, and held as under:

“11. In Shri Durgacharan Misra v. State of Orissa & Ors.,
AIR1987 SC 2267, this Court considered the Orissa Judicial
Service Rules which did not provide for prescribing the minimum
cut-off marks in interview for the purpose of selection. This
Court held that in absence of the enabling provision for
fixation of minimum marks in interview would amount to amending
the Rules itself. While deciding the said case, the Court placed
reliance upon its earlier judgments in B.S. Yadav & Ors. v.
State of Haryana & Ors., AIR 1981 SC 561, P.K. Ramachandra Iyer
& Ors. v. Union of India & Ors., AIR 1984 SC 541 and Umesh
Chandra Shukla v. Union of India & Ors., AIR 1985 SC 1351
wherein it had been held that there was no “inherent
jurisdiction” of the Selection Committee/Authority to lay down
such norms for selection in addition to the procedure prescribed
by the Rules. Selection is to be made giving strict adherence to
the statutory provisions and if such power i.e. “inherent
jurisdiction” is claimed, it has to be explicit and cannot be
read by necessary implication for the obvious reason that such
deviation from the Rules is likely to cause irreparable and
irreversible harm.
12. Similarly, in K. Manjusree v. State of A.P., AIR 2008 SC
1470, this Court held that selection criteria has to be adopted
and declared at the time of commencement of the recruitment
process. The rules of the game cannot be changed after the game
is over. The competent authority, if the statutory rules do not
restrain, is fully competent to prescribe the minimum qualifying
marks for written examination as well as for interview. But such
prescription must be done at the time of initiation of selection
process. Change of criteria of selection in the midst of
selection process is not permissible.
13. Thus, the law on the issue can be summarised to the effect
that in case the statutory rules prescribe a particular mode of
selection, it has to be given strict adherence accordingly. In
case, no procedure is prescribed by the rules and there is no
other impediment in law, the competent authority while laying
down the norms for selection may prescribe for the tests and
further specify the minimum benchmarks for written test as well
as for viva voce.”

 
7. In Himani Malhotra v. High Court of Delhi, AIR 2008 SC 2103,
this Court has held that it was not permissible for the employer to
change the criteria of selection in the midst of selection process.
(See also: Tamil Nadu Computer Science BEd Graduate Teachers Welfare
Society (1) v. Higher Secondary School Computer Teachers Association &
Ors., (2009) 14 SCC 517; State of Bihar & Ors. v. Mithilesh Kumar,
(2010) 13 SCC 467; and Arunachal Pradesh Public Service Commission &
Anr. v. Tage Habung & Ors., AIR 2013 SC 1601).
8. In P. Mohanan Pillai v. State of Kerala & Ors., AIR 2007 SC
2840, this Court has held as under :
“It is now well-settled that ordinarily rules which were
prevailing at the time, when the vacancies arose would be
adhered to. The qualification must be fixed at that time. The
eligibility criteria as also the procedures as was prevailing on
the date of vacancy should ordinarily be followed.”
9. The issue of the change of rule of the game has been referred to
the larger Bench as is evident from the judgment in Tej Prakash Pathak
& Ors. v. Rajasthan High Court & Ors., (2013) 4 SCC 540.
10. However, the instant case is required to be considered in the
light of the findings of facts recorded by the Courts below:-
The Tribunal after appreciating the evidence on record, recorded
the following findings:
“The applicant had secured 47 marks out of 50 in the written
examination. He was given only 20 marks in the interview
whereas persons like Miss Zeenath Begum, Mr. Mohsin, Mr. Bishnu
Biswas, Mr. Mohan Raof, Mr. Bharati Bhusan, Mr. Dilip Bepari and
others got equal marks in the interview as in the written
examination or more distorting results. For instance, Mr.
Bishnu Biswas got 34 marks in the written examination and was
given 45 marks in the interview. Similarly, Mr. Dilip Bepari
got 36 marks in the written examination and got 45 marks in the
interview. In case of Shri Bishnu Biswas he was not qualified
as per recruitment rules since he did not possess the prescribed
8th pass certificate for the post. Directions have been sought
from the Tribunal to set aside the appointment orders of the
private respondents as per orders of 5.2.2009 and 4.6.2009.”
11. The High Court considered these issues and recorded the finding
of fact that undoubtedly awarding of marks in the above manner
indicated lack of transparency in the matter.
12. The High Court has further held that distribution of marks
equally both in the written test and in the interview is not
permissible at all. In the instant case, there has been 50 marks for
the written test as well as 50 marks for interview though the rules
did not envisage holding of the interview at all.
13. This Court in Ashok Kumar Yadav & Ors. etc. etc. v. State of
Haryana & Ors., AIR 1987 SC 454 held that allocation of 22.2% marks
for the viva voce test was excessive and unreasonably high, tending to
leave room for arbitrariness.
(See also : Munindra Kumar & Ors. v. Rajiv Govil & Ors., AIR 1991 SC
1607; Mohinder Sain Garg v. State of Punjab & Ors., (1991) 1 SCC 662;
P. Mohanan Pillai (supra); and Kiran Gupta & Ors. etc. etc. v. State
of U.P. & Ors. etc., AIR 2000 SC 3299).
14. In Satpal & Ors. v. State of Haryana & Ors., 1995 Supp (1) SCC
206, this Court disapproved allocation of 85% of total marks for
interview observing that such fixation was conducive to arbitrary
selection. While deciding the said case the court placed reliance upon
the Constitution Bench judgment in Ajay Hasia etc. v. Khalid Mujib
Sehravardi & Ors., AIR 1981 SC 487, wherein the court had held that
allocation of more than 15% of the total marks for the oral interview
would be arbitrary and unreasonable and would be liable to be struck
down as constitutionally invalid. Thus, it is evident that the courts
had always frowned upon prescribing higher percentage of marks for
interview even when the selection has been on the basis of written
test as well as on interview.
15. The appropriate allocation of marks for interview, where
selection is to be made by written test as well as by interview, would
depend upon the nature of post and no straight-jacket formula can be
laid down. Further there is a distinction while considering the case
of employment and of admission for an academic course. The courts
have repeatedly emphasized that for the purpose of admission in an
education institution, the allocation of interview marks would not be
very high but for the purpose of employment, allocation of marks for
interview would depend upon the nature of post.
16. In Mehmood Alam Tariq & Ors. v. State of Rajasthan & Ors., AIR
1988 SC 1451, this Court had upheld fixation of 33% marks as minimum
qualifying marks for viva test.
17. In State of U.P. v. Rafiquddin & Ors., AIR 1988 SC 162, this
Court upheld the fixation of 35% marks as minimum qualifying marks in
the viva test for selection for the recruitment to the post of a
judicial magistrate.
18. In Anzar Ahmad v. State of Bihar & Ors., AIR 1994 SC 141,
allocation of 50% marks for viva test and 50% marks for academic
performance was upheld by this Court while considering the appointment
of Unani Medical Officer observing that court must examine as to
whether allocation of such higher percentage may tend to
arbitrariness.
19. In Jasvinder Singh & Ors. v. State of J&K & Ors., (2003) 2 SCC
132, this Court upheld the allocation of 20% marks for viva test as
against 80% marks for written test for selection to the post of Sub-
Inspector of Police. However, the Court cautioned observing that the
awarding of higher percentage of marks to those who got lower marks in
written test in comparison to some who had got higher marks in written
examination, an adverse inference from certain number of such
instances can be drawn. However, in absence of any allegation of mala
fides against the Selection Committee or any Member thereof, a
negligible few such instances, would not justify the inference that
there was a conscious effort to bring some candidates within the
selection zone.
20. In the instant case, the rules of the game had been changed
after conducting the written test and admittedly not at the stage of
initiation of the selection process. The marks allocated for the oral
interview had been the same as for written test i.e. 50% for each.
The manner in which marks have been awarded in the interview to the
candidates indicated lack of transparency. The candidate who secured
47 marks out of 50 in the written test had been given only 20 marks in
the interview while large number of candidates got equal marks in the
interview as in the written examination. Candidate who secured 34
marks in the written examination was given 45 marks in the interview.
Similarly, another candidate who secured 36 marks in the written
examination was awarded 45 marks in the interview. The fact that today
the so called selected candidates are not in employment, is also a
relevant factor to decide the case finally. If the whole selection is
scrapped most of the candidates would be ineligible at least in
respect of age as the advertisement was issued more than six years
ago.
Thus, in the facts of this case the direction of the High Court
to continue with the selection process from the point it stood
vitiated does not require interference.
In view of the above, the appeals are devoid of merit and are
accordingly dismissed. No costs.
…………………………….J.

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

New Delhi,
April 2, 2014.

 

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