Balakrishna & Ors. Vs. Modh Vinaykumar Dasrathlal & Ors.
Service Commission & Anr. Vs. Modh Vinaykumar Dasarathlal & Ors.
J U D G M E N T
AFTAB ALAM, J.
appeals arise from a batch of writ petitions filed before the Gujarat High
Court questioning the validity of the appointments of Assistant Public
Prosecutor (Class-II) made from the select list prepared on the basis of the written
examination and viva voce and personality test held by the Gujarat Public
Service Commission. The challenge was based on the ground that the minimum
qualifying mark, separately fixed for the viva voce, was introduced just two or
three days before the commencement of the oral tests though it was not
stipulated in the advertisement issued by the Commission for filling up the
posts. According to the writ petitioners (respondents before this Court), the introduction
of the minimum qualifying mark for the viva voce, after the commencement of the
selection process was, illegal and actuated by bias on the part of the
Commission. It led to a number of highly anomalous results and completely vitiated
the selections and the appointments made on that basis.
learned single judge of the High Court did not accept the writ petitioners'
contention and dismissed all the writ petitions by judgment and order dated
August 17, 2009, passed in Special Civil Application No.7699 of 2009 (and other
the judgment of the single judge, the writ petitioners filed intra-court appeals
and a division bench of the High Court allowed the appeals and set aside the
judgment of the single judge. It held that the action of the Commission in
introducing the minimum qualifying mark for the viva voce, in the middle of the
selection process, was bad and "the Commission appears to have guided by
legal malafide (sic)". It, accordingly, quashed the select list and the
appointments made on its basis and directed that a fresh list be drawn up on the
basis of the aggregate of marks obtained by the candidates in the written test
and the viva voce regardless of the minimum qualifying mark prescribed by the
Commission for the viva voce. It directed the concerned authorities to complete
the process within 2 months from the date of the judgment and till then permitted
the appointees to continue to serve in their respective positions.
the judgment of the division bench, the appeals are filed (i) by the candidates
(102 in number) who were appointed as Assistant Public Prosecutors on the basis
of the impugned selection made by the Commission (and who were not parties in the
writ petitions, or the intra court appeals before the court) and (ii) by the
Gujarat Public Service Commission.
proceeding to examine the facts of the case and the rival contentions of the
parties, it may be stated that on behalf of the respondents, it was accepted
that the direction by the division bench of the High Court to draw up the merit
list ignoring the minimum qualifying mark separately fixed for the viva voce
may not be sustainable as that would be contrary to the statutory rules
governing the selection and appointment. The only course 4left open, therefore,
was to scrap the entire selection process and start from the beginning all over
to the facts of the case, it is interesting to note how the process of filling
up the posts of Assistant Public Prosecutor in such large numbers was put into
motion. From a limitation petition, for condoning the inordinate delay of 1695
days in filing a State criminal appeal, it came to light that there was acute
shortage of Assistant Public Prosecutors and as a result, the functioning of
the subordinate criminal courts in the State badly suffered. The High Court
took up the matter and on its initiative, the State Government sanctioned 180
new posts of Assistant Public Prosecutors. After due consultation with the Gujarat
Public Service Commission and the concerned authorities of the State
Government, the Advocate General of the State, assured the High Court that all the
newly sanctioned posts and the vacancies existing in the already sanctioned cadre
(242 in total) would be filled up in a time bound manner on the basis of rules
especially framed for the purpose as a one time measure.
The statements made
by the Advocate General before the High Court are recorded in the order dated
October 08, 2008, passed by a division bench of the High Court in Criminal
Miscellaneous Application No.13937 of 2007 in Criminal Appeal No.487 of 2006.
From the order of the High Court it appears that the Advocate General stated
before the court that selection would be made on the basis of a written test followed
by oral interviews and minimum qualifying marks would be fixed for the tests. The
relevant passage in the High Court order is as follows: ".... Shri Trivedi,
learned Advocate General, in consultation with the Secretary, GPSC, has further
submitted that approximately three times of number of posts to be filled in, starting
from top to bottom, the applicants will be called for Oral Interviews. However,
minimum qualifying marks will be prescribed and the aforesaid will also be reflected
and/or notified in the Advertisement....."
High Court passed the order incorporating the statements made by the Advocate General
and directed the concerned authorities to make appointments on all the available
posts of Assistant Public Prosecutor following the time schedule given in the
furtherance of the Advocate General's assurance given to the court and in compliance
with the court's direction on that basis, a set of rules called the Assistant
Public Prosecutor, Gujarat General State Service Class II Recruitment (Examination)
Rules, 2008 (for short "the Recruitment Rules") were framed by the
State Government under the proviso to Article 309 of the Constitution of India and
published in the Gujarat Government Gazette, Extraordinary, dated, August 6, 2008.
Rule 12 of the Recruitment Rules dealing with the nature of examination
provided as under: 6 "Nature of Examination 12 (1) The examination shall be
in two parts as shown in Appendix. Part I shall be written examination and Part
II shall be viva-voce and Personality Test. (2) The Commission shall fix the qualifying
marks to be obtained by a candidate in Part-I of the examination in Appendix and
shall call only those candidates who fulfil qualifying standard for Viva-voce
and Personality Test.
Provided that candidates
belongs to the Scheduled Castes, Scheduled Tribes or Socially and Educationally
Backward Classes including Nomadic Tribes and Denotified Tribes, may be summoned
for viva-voce and Personality Test by applying relaxed standard in Part-I of
the examination if the Commission is of the opinion that sufficient number of candidates
from those communities are not likely to be called for viva-voce and personality
test on the basis of the qualifying standard for general category in order to fill
up the vacancies reserved for such categories. (3) The commission shall fix the
qualifying marks to be obtained by a candidate in the viva-voce and personality
test. (4) The candidate shall be required to attend the written part of the
examination and viva-voce and personality test at his own expense; (5) If the candidate,
who is qualified for the viva-voce and personality test, fails to attend the viva-voce
and personality test, shall not be eligible for selection." (emphasis
14 dealt with the result of the examination and in sub-rule (1) provided as
follows: "Result of Examination 14(1) After two stage of the examination are
over, the commission shall prepare the result arranging the marks of the candidates
seriatim according to merit taking into consideration the total marks obtained by
the candidates as per the qualifying standards fixed for the written
examination and viva-voce and personality test and shall declare a list of qualified
candidates accordingly." (emphasis added)At the end of the Recruitment Rules
there was an Appendix in two parts. Part I contained the details concerning the
written examination which would consist of five papers with an aggregate of 600
marks; part II provided that there would be a viva voce and personality test of
the Recruitment Rules were framed and notified, the Commission on October 17, 2008
issued an advertisement inviting applications for filling up 242 posts of
Assistant Public Prosecutor (Class II). Of the 242 posts available, 122 were to
be filled up on open merits and the remaining was reserved for the different reserved
categories. Under the marginal heading, "Particulars of Examination",
it was stated that the examination would consist of two parts, i.e., written
(objective test) and oral interview. The question paper of written examination
(Part I) would be of 300 marks. In connection with the second part of the
examination relating to the oral interview it was stated as follows:
"PART- II Oral
Interview- 30 Marks The candidate obtains minimum 105 marks in the written examination
i.e. as decided by the Commission, and the candidate who fulfils the educations
qualifications, age, experience, etc., as mentioned in the advertisement shall be
called for the oral interview in exact numbers and there shall be 30 marks for the
oral interview. The final result of this examination shall be published as per
the recruitment rules. The examination is of objective aptitude type, the provision
of re-checking is not adopted. The final result of the examination shall be
furnished on the basis of the total marks obtained in written as well as oral
things are to be seen from the advertisement. One, though in the Recruitment
Rules, 600 marks were allotted for the written examination and 75 for the viva
voce, in the advertisement the written examination was given 300 and viva voce
30 marks. The second, though the minimum qualifying mark of 105 out of 300 was
fixed for the written examination, no qualifying mark was fixed separately for
the viva voce as required by rule 12 (3) of the Recruitment Rules.
Nevertheless, there was a broad and general stipulation that, "the final result
of this examination shall be published as per the recruitment rules".
first discrepancy in regard to the allotment of marks to the written and oral tests
respectively, though not quite vital, was rectified by the notification dated
October 24, 2008, issued by the State Government, under the proviso to Article
309 of the Constitution. By this notification, rule 19 was added at the end of
the Recruitment Rules which reads as under: "19. Notwithstanding anything contained
in these rules, the competitive examination, held by the Commission pursuant to
the advertisement issued during the year 2008 for the recruitment to the post
specified in rule 3, shall be the multiple choice objective type written
examination for 300 marks from the subjects mentioned in Papers I, II, III, IV
and V in Part I of the Appendix, Provided that (i) For papers I and II of the
Gujarati and English in Part I of the Appendix respectively except grammar, all
other topics be deemed as excluded. (ii) In Part II Viva-voce and Personality
Test, the maximum of 75 marks, shall be read as 30 marks and (iii) The provisions
of rules 12,13,14 and 16 shall apply mutatis mutandis to such competitive
examination" (emphasis added)
written test was held by the Commission on January 11, 2009 and its result was
published on March 20, 2009 by giving out the roll numbers (and not the names) of
the qualifying candidates. Approximately 5,550 candidates sat for the written
examination out of which 790 candidates were short-listed for being called for
the oral interview. After the publication of the result of the written test the
marks obtained by the short-listed candidates were kept in a sealed cover.
this stage, while preparations were underway for holding the viva voce of the
short-listed candidates, in the meeting held on April 22, 2009, it was decided that
in terms of rule 12(3) of the Recruitment Rules, the Commission was required to
decide the minimum qualifying marks for the viva voce. Accordingly, on April
23, 2009, the Secretary to the Commission submitted the proposal together with a
copy of the Rules for order of the Commission and on the same day the
Commission took the decision fixing 10 out of 30 as the minimum qualifying mark
for the viva voce. The proceedings of the Commission dated April 23, 2009 read
as follows: "The Commission has taken following decision after discussion.
The Commission shall decide
qualifying marks to be obtained by the candidate in interview under rule 12(3) of
Recruitment (Examination) Rules (Page No.5/C) for this post. Accordingly, the
Commission is supposed to decide minimum qualifying marks for considering the candidate
successful, in interview. Hence, after careful consideration the Commission decides
that to get out of the maximum 30 marks of the interview, 10 marks as minimum
qualifying marks. The intimation of this decision may be given in time, to every
candidate before they appear in interview. For this purpose the Commission
gives its approval for procedure to be followed as per suggestion made in paragraph
No.3 shown against- on previous page. Further, this decision may be displayed on
notice board in such a proper way that all the concerned persons may get intimated.
It may please be noted
that it may get published tomorrow. Sd/- Member Sd/- Chairman [Shree Variya] (Shree
Bhavsar] 23.4.09 23.4.09 Sd/- Secretary 23.4.09 J.S./D.S. Sd/- (Jt.Secretary) 24.4.09
The details to be displayed on Notice board as well as taken in to register in consonance
with the above decision is submitted for approval. 11 1. Following details may
be displayed on notice board. As per rule 12(3), the Commission has decided the
minimum qualifying 10 marks out of 30, for the candidate appearing in interview
(Viva-Voce) of Assistant Public Prosecutor Class-II. The candidate getting less
marks than the this may not be eligible for selection. Which may be please noted.
Make a note in the register as below, in which signatures of the candidates are
being taken at the time of interview."
it needs to be clarified that normally the Gujarat Public Service Commission
consists of a Chairperson and four members but at that time the positions of
three members were vacant and only a Chairman and a member comprised the
Commission. Hence, the proceedings are shown to have been signed by the
Chairman and one member.
accordance with the Commission's direction, the decision fixing 10 out of 30
marks as the minimum qualifying mark for the viva voce was put up on the notice
board. Further, each candidate was individually intimated and was made to sign
a declaration/consent form before going for the oral test. The consent form bore
the following declaration under which the candidates were required to put their
signatures: "Under recruitment rules 12(3) the commission has prescribed
10 qualifying marks to be obtained by candidates out of 30 in viva-voce test
for appointment to the post of Assistant Public Prosecutor (Class -II) and it is
to be noted that the candidates who will secure less than 10 marks will not be eligible
for recruitment to the post of Assistant Public Prosecutor." (emphasis
forms signed by each of the candidates are on record.
viva voce of all the 790 short listed candidates was held from April 27, 2009
to July 9, 2009. On July 15, 2009, marks of the written test of the candidates who
were called for interview were taken out of the sealed cover and on July 16,
the Commission declared the final result as per Rule 14(1).
the facts as stated above, we are completely unable to see any illegality in
the selection process much less any bias or malice of any kind. But on behalf
of the writ petitioners-respondents, it is contended that it is a clear case of
bias. It is alleged that in order to bring in its favoured candidates the Commission
found it necessary to exclude a sufficient number of meritorious candidates by
any ruse and the minimum qualifying mark for viva voce was introduced at the
last minute only for that intent and purpose. The respondents pointed out that
the application of the minimum qualifying mark separately for the viva voce
excluded some candidates who would have been selected only on the strength of
their marks in the written test even though they were given nil mark in the
viva voce. The respondents cited several kinds of figures before the High Court
to high light the "anomalies" resulting from the introduction of the minimum
qualifying mark for the viva voce.
It was pointed out
that 81 out of the 203 selected candidates had got the minimum qualifying mark
in the viva voce, i.e., 10 out of the total of 30; 190 candidates out of 790
called for interview got just 8 or 9 marks in the viva voce and were, thus,
excluded from the final select list; 503 candidates out of the 790 called for interview
got less than the qualifying mark in the viva voce. One or two more examples of
a similar nature were also cited by the respondents. The Division Bench of the
High Court appears to have attached considerable importance to these so called
anomalies and its judgment seems to have been influenced by these results.
are unable to accept or even to follow the allegation based on the figures as
cited above. It is necessary to bear in mind that no objection can be taken to
the fixing of the cut off mark separately for the viva voce as that is the
mandate of the statutory rules governing the recruitment. What alone can be objected
to is the omission to specify the cut off mark for viva voce in the
advertisement and fixing it later on. But we fail to see any connection between
the "anomalies" and the fact that the cut off mark for viva voce was
fixed at a later stage, though before the commencement of the interviews and
with due intimation to all the candidates.
as noted above the marks obtained by the short listed candidates in the written
test were kept in a sealed cover and those were taken out only after the oral
interview of all the candidates was over. At the time a candidate appeared for the
interview the members of the interview board had no means to know the mark obtained
by him/her in the written test. In such a situation we don't see how it could be
possible for the interview board to purposefully exclude a candidate by giving
less than the minimum qualifying mark for the viva voce even though he/she
might have been selected on the basis of the mark obtained in the written test
playing around with numbers one is quite likely to come up with some figures
that might appear unusual and unexpected but that alone will not make out a case
of bias or legal malafide (See the decision by a bench of four judges of this Court
in Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, paragraph 21). In
the facts of the case as noted above we are satisfied that the examples cited by
the respondents do not show that there was any arbitrariness or play of bias in
giving marks to the candidates in the viva voce or that there was any flaw in the
selection process making it liable to be struck down.
Viswanathan, senior advocate, appearing for the respondents submitted that the
Advocate General had undertaken before the High Court that the qualifying marks
for both the written test and the viva voce would be published in the
advertisement. He further submitted that sub-rule (2) of rule provided for
fixing the minimum qualifying mark for the written test in the same way as
sub-rule (3) provided for fixing the minimum qualifying mark for the viva voce.
He argued that the provisions of sub-rules (2) and (3) of rule 12 could not be read
and given effect to differently and when the minimum qualifying mark for the written
test was specified in the advertisement there was no reason for not indicating the
minimum qualifying mark for the viva voce in the advertisement itself.
grievance of Mr. Viswanathan cannot be said to be wholly without substance. It
is true that the better and the more proper way to give effect to the provision
of rule 12 (3) of the Recruitment Rules was to specify the minimum qualifying mark
for the viva voce also in the advertisement itself. But that was not done. The question
is what would be the consequence of the omission and was it open to the
Commission to rectify the error by fixing the minimum qualifying mark for the
viva voce later on and giving intimation of its decision to each of the
candidates appearing for the oral interview before the beginning of the test.
Division Bench of the High Court has held that the introduction of the minimum
qualifying mark for the viva voce at the later stage in the selection process
was not permissible and it completely vitiated the selection process. Mr. Viswanathan
strongly supports the view taken by the High Court. In support of its view, the
Division Bench of the High Court, has placed reliance on two decisions of this
Court, one in K. Manjusree v. State of Andhra Pradesh and another, (2008) 3 SCC
512 and the other Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11. Mr.
Viswanathan also cited before us the decision in K. Manjusree and invited our attention
particularly to the following passage in paragraph 33 of the judgment: "33.....
Where the rules do not
prescribe any procedure, the Selection Committee may also prescribe the minimum
marks, as stated above. But if the Selection Committee wants to prescribe
minimum marks for interview, it should do so before the commencement of selection
process. If the Selection Committee prescribed minimum marks only for the written
examination, before the commencement of selection process, it cannot either
during the selection process or after the selection process, add an additional requirement
that the candidates should also secure minimum marks in the interview. What we have
found to be illegal is changing the criteria after completion of the selection
process, when the entire selection proceeded on the basis that there will be no
minimum marks for the interview."
our view, both the decisions relied upon in support of the respondents' case
are completely distinguishable and have no application to the facts of this
case. K. Manjusree was a case of selection and appointment to the posts of
District & Sessions Judge (Grade II) in the Andhra Pradesh Higher Judicial Service.
The selection and appointment to the post of District & Sessions Judge was
governed by the resolutions of the High Court and the resolution dated November
30, 2004 decided the method and manner of selection. It resolved to conduct the
written examination for the candidates for 75 marks and oral examination for 25
It also resolved that
the minimum qualifying marks for the O.C., B.C., S.C. and S.T. candidates would
be as prescribed earlier. Following the written examination, the qualified candidates
were called for interview before a committee of five judges. After the
interview, the select committee of five judges prepared a merit list on the
basis of the aggregate of marks obtained by each of the candidates in the
written test and the oral interview. At that stage, the select committee did
not apply any cut off mark for the viva voce.
The list prepared by the
select committee was approved by the administrative committee and it finally came
before the Full Court of the High Court. The Full Court decided to have the matter
reviewed by a committee of two judges constituted by the Chief Justice of the
High Court. It was at that stage that the committee of two judges decided that there
should have been a minimum qualifying mark for the oral interview as well, in
the same ratio as prescribed for the written test.
decided that only those candidates who secured the minimum of 12.5 out of 25
(for the open category), 10 marks (for B.C. candidates), and 8.75 marks (for SC
and ST candidates) would be considered as having succeeded in the interview.
The decision of the committee of two judges was approved by the Full Court and
consequently, the earlier list prepared by the select committee and approved by
the administrative committee was revised and the final recommendation for
appointment was made by the High Court on the basis of the revised merit list. It
was in those facts that this Court held that the introduction of the cut off
mark for the viva voce after the oral interviews were over amounted to changing
the rules of the game in mid-play and was not permissible in law. The passage from
paragraph 33 of the judgment relied upon by the respondents must be understood
in the facts of the case.
decision in Hemani Malhotra is equally inapplicable to the facts of the case.
Hemani Malhotra was a case of selection and appointment to the vacant posts in
the Delhi Higher Judicial Service and those appointments too were governed by the
administrative resolutions of the High Court. For filling up the posts, the Registrar
General of the High Court issued an advertisement that laid down that the minimum
qualifying mark in the written examination would be 55% for general candidates and
50% for scheduled castes and scheduled tribes candidates. In the advertisement
there was no indication at all about any cut off mark for the oral interview.
After the written
examination, no result was published giving out the names or roll numbers of the
qualified candidates but the successful candidates were called to appear for
the oral interview individually through letters. After the date fixed for oral
interview was postponed three or four times the selection committee of the High
Court resolved that it was desirable to prescribe a minimum mark for the viva
voce and referred the matter to the Full Court. The Full Court accepted the
suggestion made by the select committee and resolved that for recruitment to
the Delhi Higher Judicial Service from the Bar the minimum qualifying mark in
the viva voce will be 55% for general candidates and 50% for scheduled castes and
scheduled tribes candidates. After the decision, interviews were held but significantly
the candidates were kept in dark about the decision fixing the cut off mark for
the viva voce.
The High Court prepared
the select list applying the cut off mark fixed for viva voce but the
candidates who appeared for the oral interviews still did not know why they
were not selected despite getting higher marks. It was only through
applications made under the Right to Information Act that some of the unselected
candidates were able to gather that their non-selection was on account of their
failure to secure the cut off mark in the viva voce and then the selection was challenged
before the Court. It is evident that the facts of the case in hand are entirely
different and the decision in Hemani Malhotra has no application to this case.
Viswanathan also relied upon the decision of this Court in Ramesh Kumar v. High
Court of Delhi and another, (2010) 3 SCC 104. This decision also has no relevance
to the facts of the present case. In Ramesh Kumar, what this Court said is that
for appointment to the judicial services, in the absence of any contrary
provision in the relevant rules Delhi High Court should not have fixed any
minimum qualifying marks for the viva voce because this Court had accepted
Justice Shetty Commission's report which had prescribed not to have any cut off
mark for interview. Actually what is said in paragraph 15 of the judgment in Ramesh
Kumar demolishes the case of the respondents: "
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.
thus, made the legal position clear, the judgment in paragraph 16 went on to
say: "16. In the instant case, the Rules do not provide for any particular
procedure/criteria for holding the tests rather it enables the High Court to
prescribe the criteria. This Court in All India Judges' Assn. (3) v. Union of
India, [(2002) 4 SCC 247], accepted Justice Shetty Commission's Report in this regard
which had prescribed for not having minimum marks for interview.
The Court further
explained that to give effect to the said judgment, the existing statutory rules
may be amended. However, till the amendment is carried out, the vacancies shall
be filled as per the existing statutory rules. A similar view has been reiterated
by this Court while dealing with the appointment of Judicial Officers in Syed T.A.
Naqshbandi v. State of J&K [(2003) 9 SCC 592] and Malik Mazhar Sultan (3) v.
U.P. Public Service Commission [(2008) 17 SCC 703]. We have also accepted the
said settled legal proposition while deciding the connected cases i.e. Rakhi
Ray v. High Court of Delhi [(2010) 2 SCC 637] vide judgment and order of this
date. It has been clarified in Rakhi Ray that where statutory rules do not deal
with a particular subject/issue, so far as the appointment of the Judicial Officers
is concerned, directions issued by this Court would have binding effect."
coming back to the facts of the case in hand, though the rules framed under
Article 309 of the Constitution governing the selection process mandated that there
would be minimum qualifying marks each for the written test and the oral
interview, the cut off mark for viva voce was not specified in the
advertisement. In view of the omission, there were only two courses open. One,
to carry on with the selection process and to complete it without fixing any
cut off mark 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
That would have been
clearly wrong and in violation of the statutory rule governing the selection.
The other course was to fix the cut off mark for the viva voce and to notify
the candidates called for interview about it. This is the course that the Commission
followed. This was in compliance with the rules and it did not cause any
prejudice to any candidate either. We, thus, see no illegality at all in the selection
light of the discussions made above we find that the Division Bench of the High
Court took a wrong view of the matter and its judgment and order are quite
unsustainable. We, accordingly, set aside the impugned judgment and dismiss all
the writ petitions filed by the respondents before the Gujarat High Court.
the result, the appeals are allowed but with no order as to costs.