Punjab-Haryana High Court
Dr. Mahipal Singh And Others vs State Of Haryana And Others on 22 April, 2025
Neutral Citation No:=2025:PHHC:054383
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
JUDGMENTS RESERVED ON :01.03.2025
JUDGMENTS PRONOUNCED ON: 22.04.2025
(1) CWP-33762-2024 (O&M)
DR. MAHIPAL SINGH AND OTHERS ..... Petitioners
Versus
STATE OF HARYANA AND OTHERS ... Respondents
(2) CWP-5153-2025
VIJENDER KUMAR AND ANOTHER ..... Petitioners
Versus
STATE OF HARYANA AND ANOTHER ... Respondents
(3) CWP-4248-2025
MINAXI AND OTHERS ..... Petitioners
Versus
STATE OF HARYANA AND OTHERS ... Respondents
(4) CWP-4912-2025
PARVEEN AND OTHERS ..... Petitioners
Versus
STATE OF HARYANA AND OTHERS ... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
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Present: Mr. Sardavinder Goyal, Advocate,
Mr. Nishant Sindhu, Advocate,
Mr. Sarwinder Goyal, Advocate and
Mr. J.S. Nagla, Advocate
for the petitioner(s) in CWP-5153-2025 and
CWP-33762-2024.
Mr. Mukesh Rao and Mr. Shubham Aneja,
Advocates for the petitioners in CWP-4912-2025.
Mr. Ravinder Singh Dhull, Advocate for the petitioners in
CWP-4248-2025
Mr. Tapan Kumar, DAG, Haryana.
Mr. Balwinder Sangwan and Mr. Krishan Mourya,
Advocates for the respondent-HPSC.
Mr. Gurnoor Sandhu, Advocate for respondent-HPSC
in CWP-33762-2024.
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VINOD S. BHARDWAJ, J.
Whether prescribing a benchmark criteria for different stages of
a selection process amounts to change of an “eligibility criteria” or is
finalization of a “selection criteria/procedure” for selection, is the question
which arises for consideration before this Court alongwith its ancillary
issues.
2. Involving a common issue, these writ petitions are decided by a
common judgment. For the facility of reference facts are, however, being
extracted from CWP-33762-2024 titled as “Dr. Mahipal Singh and others
versus State of Haryana and others“.
3. Challenge in the aforesaid writ petition is to the impugned
Clause 2 (c) and 2 (d) of the Public Announcement dated 18.07.2024 (Advt.
No. 16 of 2024) issued by the respondent No.2-Haryana Public Service
Commission (hereinafter referred to as “HPSC”) whereby a condition has
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been imposed prescribing minimum 35% marks to be secured in subject
knowledge test to qualify for interview/viva voce test on the ground that not
only the same is illegal, arbitrary and unconstitutional but also that the same
is not in conformity with the Haryana Ayurvedic Department, Group-B
Service Rules, 1989 (hereinafter referred to as “Service Rules of 1989”). The
said Clauses of the advertisement are extracted hereinafter below:-
Clause 2:-
c) No candidate will be called for the interview
viva-voce test unless she/he secures a
minimum of 35% marks in the test.
d) The number of the candidates called for
interview will be two times, alongwith
bracketed candidates if any, of the number
of advertised posts provided that they have
secured the minimum cut-off marks of 35%.
4. A further prayer has also been made to direct the HPSC to
invite 2 times the number of posts advertised under the reserved category
after giving relaxation in the minimum percentage of marks in the Subject
Knowledge Test.
FACTS
5. Briefly, the facts of the case are that the respondent-HPSC had
issued an advertisement No. 16 of 2024 dated 21.06.2024 for filling up the
805 posts of Ayurvedic Medical Officers (Group ‘B’) in the Health and
Ayush Department, Haryana. The last date for submission of the application
was 12.07.2024 which such date was extended to 30.08.2024. Out of the
total 805 number of posts advertised, 161 posts were reserved for the SC
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category. The Haryana Public Service Commission thereafter issued a public
announcement on 18.07.2024 for information of all the candidates whereby
both the above conditions under challenge were notified. Vide the above
public announcement, the HPSC published about the scheme/pattern of the
exam which was to comprise of a screening test of 100 marks, to be held on
22.09.2024. Each candidate was required to secure a minimum of 25%
marks to clear the screening test and candidates only 4 times the number of
posts advertised were to be called for the next stage of selection process,
subject to scoring minimum cut-off marks. Thereafter a subject knowledge
test of the candidate(s), who passed the screening test, was to be held. A
minimum cut off 35% marks was prescribed to be called for interview
provided they fell within twice the number of posts advertised. The
weightage of marks scored in the subject knowledge test was 87.5% while
12.5% weightage was assigned for the interview.
6. The petitioners submitted their application and participated in
the screening test. Having cleared the same, they also appeared in the subject
knowledge test i.e. second stage of the recruitment process. The result of the
subject knowledge test was declared on 03.12.2024. The petitioners are the
candidates who have been shown to have failed to secure the minimum 35%
marks to qualify for being shortlisted for the interview. It is contended that
notwithstanding the posts lying vacant and the respondent-HPSC notifying
two times candidates to be called for the interview, the petitioners have not
been called to participate in the interview process, even though 2 times a
number of candidates failed to score above the cut-off marks of 35%.
7. Aggrieved thereof the present writ petitions have been filed on
various grounds to be advertised during arguments being noticed.
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8. The respondent-Haryana Public Service Commission was duly
represented since advance copy of the writ petition had been served upon
them and a short reply was filed in the above writ and the Counsel made a
statement that the same be read as the response by the Commission in all the
writ petitions and there would be no necessity for filing of a separate reply in
each case as the factual aspects are not in dispute.
9. The Commission has relied on certain provisions of the
advertisement and as contained in Clause 6, Note 2, which is extracted as
under:-
Clause 6, Note 2:-
xxx xxx xxx xxx xxx xxx xxx
(vi) In the event of number of application being
large, Commission will adopt shortlisting criteria
to restrict the number of candidates to be called
for interview to a reasonable number by any or
more of the following methods:-
(a) On the basis of percentage of marks of
the candidates in the minimum educational
qualification prescribed in the
advertisement.
(b) On the basis of percentage of marks of
the candidates in different educational
qualifications, with weightage as decided by
the Commission.
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(c) On the basis of desirable qualifications
or any one or all of the desirable
qualifications if more than one desirable
qualification is prescribed.
(d) On the basis of higher educational
qualifications than the minimum/essential
qualification prescribed in the
advertisement.
(e) On the basis of higher experience in the
relevant field than the minimum prescribed
in the advertisement.
(f) By counting experience before or after the
acquisition of minimum/essential
qualifications.
(g) By holding a Recruitment Test.
The candidate should, therefore, mention all
his/her qualifications and experience in the
relevant field over and above the minimum
qualifications.
10. It is averred that the Haryana Public Service Commission had
thus provided for a stipulation in the advertisement about resorting to any
one or more of the seven methods of short listing prescribed therein. It is
also averred that the writ petition would not be maintainable as the
petitioners had acquiesced themselves with all the terms and conditions
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before-hand and had participated in the selection process without any
challenge or protest. It is also stated that Rules of 1989 are silent about the
selection process for direct recruitment and hence it cannot be said that the
procedure adopted is violative of the rule, when none exists. Further the
stand taken is that the recruitment agency can always devise an appropriate
procedure for recruitment and the maxim “rule of game’ does not apply for
the method or process of selection.
ARGUMENTS BY THE COUNSEL FOR THE PETITIONERS
11. Learned Counsel appearing on behalf of the petitioners have
argued that the respondent-HPSC could not have prescribed a minimum
qualifying marks to be eligible for appearing in the interview since in doing
so, the HPSC has prescribed an ‘eligibility’ which is otherwise not provided
for under the Service Rules, 1989. The petitioners have thus been rendered
ineligible to continue with their consideration for the posts of Ayurvedic
Medical Officers. Any such condition amounts to an alteration in the
‘eligibility’ conditions beyond those prescribed as per the Service Rules of
1989 and before any such exercise is undertaken by the HPSC, a
consultation is required to be done with the State Government and an
appropriate amendment is required to be carried out in the service rules,
which have otherwise been framed in exercise of the powers under Article
309 of the Constitution of India. He makes a reference to Rule 9 of the
Service Rules of 1989 which provide for modes of recruitment and to
Appendix ‘B’ thereof which prescribes the qualification to be possessed by a
candidate. The same being a regular degree in Ayurvedic Medicine and
Hindi upto Matric level, it is argued that prescribing a minimum cut-off
marks of 35% in Subject Knowledge Test (SKT) effectually amounts to
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prescribing a minimum percentile score which is otherwise not stipulated in
the Rules of 1989.
12. In support of his arguments, Counsel for the petitioners relied
upon the judgment of Hon’ble the Supreme Court in the matter of “State of
Punjab and others versus Manjit Singh and others” reported as 2003 (11)
SCC 559. The relevant extract thereof reads thus:-
“1. ……….The main question for our consideration
in these appeals is as to whether it was competent
for the Punjab Public Service Commission (for
short ‘the Commission’) to resort to screening test
with a view to short list the number of candidates
to bring it to the ratio of three to five candidates
per vacancy and further, whether keeping in view
the efficiency required for the services in respect of
which selection and appointments was to be made,
could a written test be held to fix some minimum
cut off marks, where process of selection was by
interview of eligible candidates belonging to
reserve category.
2. The High Court, in the judgments impugned in
the above noted appeals, held that the action of the
Commission in holding the screening test and
prescribing the minimum qualifying marks was
unreasonable, arbitrary and discriminatory.
Hence, gave a direction that the Commission would
interview the petitioners if not already interviewed
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and declared the result of the selection as per their
merit within the time specified. The Commission
has preferred the above noted appeals along with
the State of Punjab as one of the appellants. The
main thrust of the learned counsel appearing on
behalf of the Commission is that the Commission is
a constitutional and independent authority and it is
its duty to make an endeavour to secure efficiency
in the public administration by selecting the
suitable candidates for the public services. While
discharging such a duty, it is submitted that it
would not be subservient to the direction of the
Government unless permissible under the law.
Thus, to the extent indicated above, there may be
some conflict in the stand between the State
Government and the Commission. But both are
impleaded as appellants. The lead was taken by the
learned counsel appearing for the Commission,
who virtually alone, made his submissions.
3. The brief facts of the case are that Advertisement
No. 4 of 1997 was issued by the Commission for
recruitment of 500 Medical officers in PCMS
(Class-I). In all, 303 Scheduled Castes (General)
(for short S.C.) candidates applied.
xxx xxx xxx xxx xxx xxx xxx
The Commission fixed 45% cut-off marks for
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general category candidates and 40% cut off marks
for S.C. candidates for their consideration for the
selection. The prescribed mode of selection was
only interview of eligible candidates on the basis of
their educational qualifications.
xxx xxx xxx xxx xxx xxx xxx
5. The Resolution of the Public Service
Commission upon which main thrust has been
provided, reads as follows:
“21.10.1991
A meeting of the Commission was held today, the
21st October, 1991, at 12.30 P.M. to discuss the
criteria for screening the candidates for various
posts advertised from time to time.
The Commission decided to take screening test for
various posts in order to short list the candidates.
It has also been decided that the number of
candidates to be called for interviews shall be
limited to 3-5 times the number of vacancies
notified by the Government category-wise.
But in order to ensure minimum norms of
efficiency and standards in public administration,
the Commission examined the matter in depth and
decided that in future, no candidate belonging to
the general category, shall be called for interview
unless he obtains 45% marks in the screening test
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and in the case of Scheduled Caste/Scheduled
Tribes and Backward Classes no candidate shall
be called for interview unless he obtains 40%
marks, in the said test.
Sd/-
Chairman, Member &
Secretary.
(Emphasis supplied)
The other resolution on which emphasis has been
laid and which is also reflected in the tenor of the
arguments of the learned counsel for the
Commission, reads as under :-
“15.4.1997
The Commission placed on record that it is a
constitutional and independent authority and plays
a pivotal role in selections and appointments of
persons to public service. It endeavors to secure
efficiency in public administration by selecting
suitable persons for appointment of public service.
It has to perform its duty in an independent and
objective manner without any influence or
direction of any other authority. It is not
subservient to the directions of the Government
unless such directions are permissible by law. The
Commission is fully competent and duty-bound to
hold competitive examinations and conduct
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interviews for selecting suitable candidates as per
the criteria fixed by it as long as it does not
militate against the law.”
xxx xxx xxx xxx xxx xxx xxx
8. But for such shortlisting as indicated above, it is
not necessary to fix any minimum qualifying
marks. Any candidate on the top of the list at
number 1 down upto 500 would obviously
constitute the shortlisted zone of consideration for
selection. For the purpose of elaboration it may be
observed that in case some cut-off marks is fixed in
the name of shortlisting of the candidates and the
number of candidates obtaining such minimum
marks, suppose is less than 100, in that event
screening test itself will amount to a selection by
excluding those who though possess the prescribed
qualification and are eligible for consideration but
they would be out of the field of consideration by
reason of not crossing the cut-off marks as may be
fixed by the recruiting body. This would not be a
case of shortlisting. In shortlisting, as observed
above, any number of candidates required in
certain proportion of the number of vacancies,
may be shortlisted in order of merit from serial
No. 1 up to the number of candidates required.
9. In the present case, the stand of the appellant
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Commission is that for medical services where the
members of service have to deal with the health
and life of the people, they must have some
minimum standard of efficiency and it is the
bounden duty of the Commission to ensure the
same. It is perhaps with this view in mind that the
Commission fixed 45% minimum qualifying cut off
marks for general category candidates and 40%
cut-off marks for Scheduled Caste candidates. We
feel, here lies the fallacy in the whole reasoning of
the Commission. It is no doubt true that the
Commission is an independent and autonomous
body and has to work without influence of any
authority or the Government. It is rather under
duty to act independently. But at the same time the
fact cannot be lost sight of that the State
Government is competent to lay down the
qualifications for different posts, and frame rules
for the purpose or take policy decisions which may
of course not be against the law. In this context,
we may refer to the provisions contained under
Article 320 of the Constitution. It reads as under :-
“320. Functions of Public Service Commissions –
1. It shall be the duty of the Union and the State
Public Service Commissions to conduct
examinations for appointments to the services of
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the Union and the services of the State
respectively.
xxx xxx xxx xxx xxx xxx xxx
3. The Union Public Service Commission or the
State Public Service Commission, as the case may
be, shall be consulted –
(a) on all matters relating to methods of
recruitment to civil services and for civil posts;
(b) on the principles to be followed in making
appointments to civil services and posts and in
making promotions and transfers from one service
to another and on the suitability of candidates for
such appointments, promotions or transfers;
xxx xxx xxx xxx xxx xxx xxx
It is to be noted that under clause (3), the Union
Public Service Commission or the State Public
Service Commission, has to be consulted by the
Government relating to methods of recruitment in
civil services and for civil posts, promotions and
transfers as well as about suitability of candidates
etc. The consultation may also be in regard to
disciplinary matters affecting a person serving
under the Government. We then find that clause
(4) particularly provides that nothing in clause (3)
shall require consultation of the Commission in
respect to the manner in which any provision
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referred to in Article 16(4) may be made or the
manner in which the effect may be given to the
provisions of Article 335. We may peruse clause
(4) of Article 16 and Article 335. They read as
follows:
“Article 16(4) Nothing in the article shall prevent
the State from making any provision for the
reservation of appointments or posts in favour of
any backward class of citizens which, in the
opinion of the State, is not adequately represented
in the services under the State.
xxx xxx xxx xxx xxx xxx xxx
11. In the case in hand, it was not for the
Commission to have fixed any cut-off marks in
respect of 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
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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 domain of the State
Government. It cannot impose its own policy
decision in a matter beyond its purview.
12. The appellant has also placed reliance upon a
decision reported in Sadhna Devi (Dr) v. State of
U.P. [(1997) 3 SCC 90] It, however, deals with an
entirely different situation. The matter pertains to
the admission to postgraduate course in the
medical colleges. An entrance test was prescribed
which also prescribed minimum qualifying marks.
But so far as the candidates belonging to
Scheduled Castes and Scheduled Tribes are
concerned, the condition of obtaining the minimum
qualifying marks was removed by means of a
circular issued by the State Government. The
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circular of the State Government was challenged
by the other candidates, pleading discrimination. It
was found that though regulating the selection
procedure was within the competence of the State
Government but prescribing the eligibility criteria
for maintaining proper standards, fell within the
competence of the Medical Council of India. In that
view of the matter, it was held that the State
Government had decided to hold the entrance
examination for selection instead of merit of MBBS
examination and thus having prescribed the
minimum qualifying marks, it was not open to it to
do away with that criteria for the reserved category
candidates altogether. It was thus found that once
a decision was taken to prescribe the minimum
qualifying marks, it could not be said by the State
Government that there would be none for the
reserved category candidates since it was within
the competence of the Medical Council of India to
have prescribed the criteria for maintaining proper
standards. Therefore, the stand of the appellant
Commission in this case that, it being an
independent body, is not subservient to any
authority or the State Government, hence it is
competent for it to lay down the minimum
efficiency standards including in the matters which
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may fall within the purview of Article 335 of the
Constitution, is erroneous.
13. Reliance is also placed on the judgment in the matter of
“Durgacharan Misra versus State of Orissa & Ors.” reported as 1987 (4)
SCC 646. The relevant extract thereof reads thus:-
10. The closest to the facts of this case is the recent
decision of this Court in Umesh Chandra
Shukla v. Union of India [(1985) 3 SCC 721].
There the scope of Delhi Judicial Service Rules,
1970 came up for consideration. Rules 17 and 18
of the Delhi Judicial Service Rules, 1970 are
similar to Rules 16 and 18 of Orissa Judicial
Service Rules, 1964. The Selection Committee
constituted under these Rules consisted among
others of Judges of the High Court of Delhi. The
Selection Committee apparently thought that it has
got power to exclude candidates securing less than
600 marks in the aggregate as not being suitable
for appointment to the Judicial Service.
Accordingly it excluded all such candidates from
the select list. It was contended before this Court
that the Selection Committee would be competent
to prescribe a minimum standard to be crossed by
candidates at the viva voce test in order to be
suitable for appointment to judicial posts.
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Repelling that contention this Court observed (pp.
382-83) :
“With regard to the second contention, namely,
that the High Court had no power to eliminate the
names of candidates who had secured less than 600
marks in the aggregate after the viva voce test,
reference has to be made to Rules 17 and 18 of the
Rules which provide that the Selection Committee
shall call for viva voce test only such candidates
who are qualified at the written test as provided in
the Appendix and that the Selection Committee
shall prepare the list of candidates in order of
merit after the viva voce test. There is no power
reserved under Rule 18 of the Rules for the High
Court to fix its own minimum marks in order to
include candidates in the final list. It is stated in
para 7 of the counter-affidavit filed in Writ Petition
No. 4363 of 1985 that the Selection Committee has
inherent power to select candidates who according
to it are suitable for appointment by prescribing
the minimum marks which a candidate should
obtain in the aggregate in order to get into the
Delhi Judicial Service. It is not necessary to
consider in this case whether any other reason
such as character, antecedents, physical fitness
which may disqualify a candidate from being
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appointed to the Delhi Judicial Service may be
taken into consideration by the Selection
Committee while preparing the final list. But on
going through the Rules, we are of the view that no
fresh disqualification or bar may be created by the
High Court or the Selection Committee merely on
the basis of the marks obtained at the examination
because clause (6) of the Appendix itself has laid
down the minimum marks which a candidate
should obtain in the written papers or in the
aggregate in order to qualify himself to become a
member of the Judicial Service. The prescription of
the minimum of 600 marks in the aggregate by the
Selection Committee as an additional requirement
which the candidate has to satisfy amounts to an
amendment of what is prescribed by clause (6) of
the Appendix. The question whether a candidate
included in the final list prepared and forwarded
by the Selection Committee may be appointed or
not is a matter to be considered by the appointing
authority. In the instant case the decision that a
candidate should have secured a minimum of 600
marks in the aggregate in order to be included in
the final select list is not even taken by the High
Court but by the Selection Committee. Moreover
recruitment of persons other than District Judges
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to the Judicial Service is required to be made
under Article 234 of the Constitution in accordance
with the Rules made by the Governor as provided
therein, in consultation with the High Court.
Article 235 which vests in the High Court the
control over the District Courts and courts
subordinate thereto, cannot include the power of
making rules with regard to recruitment of persons
other than District Judges to the Judicial Service
as it has been expressly dealt with in Article 234 of
the Constitution. We are of the view that the
Selection Committee has no power to prescribe the
minimum marks which a candidate should obtain
in the aggregate different from the minimum
already prescribed by the Rules in its Appendix.
We are, therefore, of the view that the exclusion of
the names of certain candidates, who had not
secured 600 marks in the aggregate including
marks obtained at the viva voce test from the list
prepared under Rule 18 of the Rules is not legal.”
xxx xxx xxx xxx xxx xxx xxx
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
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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.
14. Reliance is also placed on the judgment of Hon’ble the Supreme
Court in the matter of “Dr. Krushan Chandra Sahu & Ors. versus State of
Orissa & Ors.” reported as 1995 (6) SCC 1. The relevant extract thereof
reads thus:-
31. Now, power to make rules regulating the
conditions of service of persons appointed on
Government posts is available to the Governor of
the State under the proviso to Article 309 and it
was in exercise of this power that the present rules
were made. If the statutory rules, in a given case,
have not been made, either by Parliament or the
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State Legislature, or, for that matter, by the
Governor of the State, it would be open to the
appropriate Government (the Central Government
under Article 73 and the State Government under
Article 162) to issue executive instructions.
However, if the rules have been made but they are
silent on any subject or point in issue, the omission
can be supplied and the rules can be supplemented
by executive instructions. (See: Sant Ram
Sharma v. State of Rajasthan [AIR 1967 SC 1910]
32. In the instant case, the Government did neither
issue any administrative instruction nor did it
supply the omission with regard to the criteria on
the basis of which suitability of the candidates was
to be determined. The members of the Selection
Board, of their own, decided to adopt the
confidential character rolls of the candidates who
were already employed as Homoeopathic Medical
Officers, as the basis for determining their
suitability.
33. The members of the Selection Board or for that
matter, any other Selection Committee, do not have
the jurisdiction to lay down the criteria for
selection unless they are authorised specifically in
that regard by the Rules made under Article 309. It
is basically the function of the rule-making
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authority to provide the basis for selection. This
Court in State of A.P. v. V. Sadanandam [1989
Supp (1) SCC 574] observed as under: (SCC pp.
583-84, para 17)
“We are now only left with the reasoning of the
Tribunal that there is no justification for the
continuance of the old rule and for personnel
belonging to other zones being transferred on
promotion to offices in other zones. In drawing
such conclusions, the Tribunal has travelled
beyond the limits of its jurisdiction. We need only
point out that the mode of recruitment and the
category from which the recruitment to a service
should be made are all matters which are
exclusively within the domain of the executive. It is
not for judicial bodies to sit in judgment over the
wisdom of the executive in choosing the mode of
recruitment or the categories from which the
recruitment should be made as they are matters of
policy decision falling exclusively within the
purview of the executive.”
(emphasis supplied)
34. The Selection Committee does not even have
the inherent jurisdiction to lay down the norms for
selection nor can such power be assumed by
necessary implication. In P.K. Ramachandra
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Iyer v. Union of India [(1984) 2 SCC 141] , it was
observed: (SCC pp. 180-81, para 44)
“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.”
35. Similarly, in Umesh Chandra Shukla v. Union
of India [(1985) 3 SCC 721], it was observed that
the Selection Committee does not possess any
inherent power to lay down its own standards in
addition to what is prescribed under the Rules.
Both these decisions were followed
in Durgacharan Misra v. State of Orissa [(1987) 4
SCC 646] and the limitations of the Selection
Committee were pointed out that it had no
jurisdiction to prescribe the minimum marks which
a candidate had to secure at the viva voce.
36. It may be pointed out that rule-making function
under Article 309 is legislative and not executive as
was laid down by this Court in B.S. Yadav v. State
of Haryana [1980 Supp SCC 524] . For this reason
also, the Selection Committee or the Selection
Board cannot be held to have jurisdiction to lay
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down any standard or basis for selection as it
would amount to legislating a rule of selection.
15. A further reference is made to the judgment of Hon’ble the
Supreme Court in the matter of “Sushil Kumar Pandey and others versus
the High Court of Jharkhand and another” reported as 2024 (6) SCC 162.
The relevant extract thereof reads thus:-
22. We find from Rule 18 of the 2001 Rules, the
task of setting cut-off marks has been vested in the
High Court but this has to be done before the start
of the examination. Thus, we are also dealing with
a situation in which the High Court administration
is seeking to deviate from the Rules guiding the
selection process itself. We have considered the
High Court’s reasoning for such deviation, but
such departure from statutory rules is
impermissible. We accept the High Court
administration’s argument that a candidate being
on the select list acquired no vested legal right for
being appointed to the post in question. But if
precluding a candidate from appointment is in
violation of the recruitment rules without there
being a finding on such candidate’s unsuitability,
such an action would fail the Article 14 test and
shall be held to be arbitrary. The reason behind the
Full Court Resolution is that better candidates
ought to be found. That is different from a
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candidate excluded from the appointment process
being found to be unsuitable.
16. Further reference is made to the judgment in the matter of “Goa
Public Service Commission versus Pankaj Rane and others” reported as
2022 (11) SCC 742. The relevant extract thereof reads thus:-
17. 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 [P.K. Ramachandra
Iyer v. Union of India, (1984) 2 SCC 141] , 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.
18. The 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
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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.
17. Learned Counsel for the petitioner(s) contends that the
respondents had published the advertisement No. 16 of 2024 on 21.06.2024
and that as per the same, the closing date was 12.07.2024. No such eligibility
conditions had been prescribed in the original document, hence, the
respondent-HPSC has altered the rules of the game after the same has
already begun. The criteria of the eligibly and the scheme/pattern of exam
could not have been changed after the cut-off date for submission of the
applications. Hence, said conditions could not have read to the detriment of
the petitioners.
18. Reliance is also placed on the judgment of Hon’ble the Supreme
Court in the matter “Amrit Yadav versus the State of Jharkhand and
others“reported as 2025 SCC OnLine SC 280. The relevant extract thereof
reads thus:
18. A three-Judge Bench of this Court
in Renu v. District and Sessions Judge, Tis Hazari
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Courts, Delhi [2014 (14) SCC 50], discussed in
detail the requirements of a valid advertisement
and observed thus:–
“16. Another important requirement of public
appointment is that of transparency. Therefore, the
advertisement must specify the number of posts
available for selection and recruitment. The
qualifications and other eligibility criteria for such
posts should be explicitly provided and the
schedule of recruitment process should be
published with certainty and clarity. The
advertisement should also specify the rules under
which the selection is to be made and in absence of
the rules, the procedure under which the selection
is likely to be undertaken. This is necessary to
prevent arbitrariness and to avoid change of
criteria of selection after the selection process is
commenced, thereby unjustly benefiting someone at
the cost of others.”
(emphasis supplied)
19. Thus, the advertisements which fail to mention
the number of posts available for selection are
invalid and illegal due to lack of transparency.
This Court further expounded in Renu (supra) that
any appointment in violation of the mandate of
Articles 14 and 16 of the Constitution of India is
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not only irregular but also illegal and cannot be
sustained. It is a trite law that a valid
advertisement inviting applications for public
employment must include the total number of seats,
the ratio of reserved and unreserved seats,
minimum qualification for the posts and procedural
clarity with respect to the type and manner of
selection stages, i.e., written, oral examination and
interviews.
19. It is further submitted that Article 320 (3) of the Constitution of
India provides that the State Public Service Commission is to be consulted
on all matters relating to methods of recruitment to civil services and for
civil posts. The power is thus with the State Government to frame the
conditions or methodology of recruitment. The Public Service Commission
is only to be consulted and does not have substantive power. In the present
case, there is nothing on record to establish that the respondent-HPSC has
been directed by the State Government to incorporate any such condition of
eligibility or procedure for recruitment.
20. Learned Counsel for the petitioner further contends that as per
the Clause 6 of the advertisement a detailed procedure about restricting the
number of candidates to be called for interview had been prescribed. It
allowed the Commission to adopt short listing of the candidates but the said
power cannot be deemed to confer or empower prescription of an eligibility.
The above Clause is extracted as under:-
“vi) In the event of number of applications being
large, Commission will adopt shortlisting criteria
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to restrict the number of candidates to be called for
interview to a reasonable number by any or more
of the following methods:-
(a) On the basis of percentage of marks of the
candidates in the minimum educational
qualification prescribed in the advertisement.
(b) On the basis of percentage of marks of the
candidates in different educational qualifications,
with weightage as decided by the Commission.
(c) On the basis of desirable qualifications or any
one or all of the desirable qualifications if more
than one desirable qualification is prescribed.
(d) On the basis of higher educational
qualifications than the minimum/essential
qualification prescribed in the advertisement.
e) On the basis of higher experience in the relevant
field than the minimum prescribed in the
advertisement.
(f) By counting experience before or after the
acquisition of minimum/essential qualifications
(g) By holding a Recruitment Test.
The candidate should, therefore, mention all
his/her qualifications and experience in the
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relevant field over and above the minimum
qualifications.”
21. He contends that the short listing criteria could have been
adopted only on the basis of educational qualification i.e. weightage,
experience etc. and only when the number of candidates were large. Once
the respondents have failed to short list even the minimum times the number
of candidates to be called, the enforcement of such conditions, that have
been notified belatedly and after the commencement of recruitment process,
need to be struck down.
22. Learned Counsel for the petitioner further contends that the
respondent-HPSC is required to provide a relaxation to the candidates
belonging to the reserved categories to the extent of 5% of the marks. He
submits that no such concession has been extended to the petitioners and that
the minimum percentage of 35% had been made universally applicable to all
candidates. The above step defeats the very object of prescribing reservation
and in-equals are being tested on a universal parameter which itself is
antithetical to the sacrosanct principles of equality of opportunity enshrined
under Article 15 and 16 of the Constitution of India. In enforcing standard
merit criteria for all the applicants, the respondent-HPSC has taken away a
level playing field and the candidates belonging to the reserved categories
are being forced to be at par with the candidates belonging to the reserved
classes. The aforesaid practice is thus discriminatory with the petitioners.
23. Reliance has been placed by the Counsel for the petitioners on
the judgment of Hon’ble the Supreme Court in the matter of “Chattar Singh
versus State of Rajasthan” reported as 1996 (11) SCC 742. The relevant
extract thereof reads thus:-
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17. The next question is whether the OBCs are to
be treated alike Scheduled Castes and Scheduled
Tribes and given the 5% cut-off marks in the
Preliminary Examination under proviso to Rule 13
and whether omission thereof prohibits the right to
equality envisaged in Article 14? Article 14
provides right to equality of opportunity and equal
protection of law. Articles 15 and 16 are species of
Article 14. Article 16(1) prohibits discrimination
and gives equality of opportunity to every citizen in
matters relating to employment or appointment to
any office under the State. Article 16(4) elongates
the equality of opportunity to unequals by
affirmative action by enjoining upon the State to
make provision for reservation of appointments for
posts in favour of “any backward class of citizens”
which in the opinion of the State is not adequately
represented in the service under the State. It is now
a well settled legal position that Article 16(4) is not
an exception but a facet of Articles 14 and 16(1). It
gives power to the State to effectuate the
opportunity of equality to any backward class of
citizens. Article 366(24) defines “Scheduled
Castes” and Article 366(25) defines “Scheduled
Tribes”.
xxx xxx xxx xxx xxx xxx xxx
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The expression “Backward Classes” has not been
defined under the Constitution but the President
has been empowered to appoint a Commission to
investigate into the conditions of Backward Classes
for recommendation with regard to steps to be
taken by the Union or the State Governments to
remove difficulties and to improve their conditions.
Commissions like Kaka Kelelkar Commission and
Mandal Commission were appointed by the
President who identified the backward classes. On
identification of social and educational
backwardness and acceptance thereof by the
appropriate Government, the President or the
Governor of the State Government would issue
public notification extending the benefits to
improve their conditions. Until such a notification
is published, Backward Classes are not entitled to
the benefit of reservation under Article 15(4) or
16(4) of the Constitution. Articles 14 and 16 read
with the Preamble gives equality of opportunity in
matters relating to employment or appointment to
any office under the State. By hierarchical unequal
social status and denial of opportunities and
facilities due to untouchability, a practice against
Scheduled Castes and Scheduled Tribes living in
the forest area require protective measures to
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remove handicaps and disadvantages suffered by
the members belonging to the Scheduled Castes
and Scheduled Tribes so as to enable them to
compete for selection. The appearance of injustice
is denial of justice. In Madhu Kishwar v. State of
Bihar [(1996) 5 SCC 125] (SCC pp. 152-53, para
38), it was laid down that law is the manifestation
of principles of justice. Rule of law should establish
a uniform pattern for harmonious existence in a
society where every individual should exercise his
rights to his best advantage to achieve excellence,
subject to the protective discrimination. The best
advantage of one person could be the worst
disadvantage to another. Law steps in to iron out
such creases and ensures equality of protection to
individuals as well as group liberties. Man’s status
is a creature of substantive as well as procedural
law to which legal incidents would attach. Justice,
equality and fraternity are trinity for social and
economic equality. Therefore, law is the foundation
on which the potential of the society stands. If the
law is to adapt itself to the needs of the changing
society, it must be flexible and adaptable. The
constitutional objective of socio-economic
democracy cannot be realised unless all sections of
the society participate in the State power equally
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irrespective of their caste, community, race,
religion and sex. All discriminations in sharing the
State power made on these grounds and those
discriminations are to be removed by positive
measures. The concept of equality, therefore,
requires that law should be adaptable to meet
equality. Article 38 mandates to minimise
inequality in income and to eliminate the inequality
in status, facilities and opportunities not only
among the individual but also among the groups of
people to secure to them adequate means to
improve excellence in all walks of life. Article 46
directs the State to promote with special care the
educational and economic interests of the weaker
sections of the people, and, in particular, of
Scheduled Castes and Scheduled Tribes, and to
protect them from social injustice and all forms of
exploitation. Equal protection clause, therefore,
requires affirmative action for those placed
unequally. Equality for unequals is secured by
treating them unequally. Affirmative action or
positive discrimination, therefore, is inbuilt in
equality of opportunity in status enshrined in
Articles 14 and 16(1) of the Constitution.
Therefore, Scheduled Castes and Scheduled Tribes
stand as two separate classes while OBCs stand
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apart.
18. The State had evolved the principle of
reservation to an office of the State or post as an
affirmative action to accord socio-economic justice
guaranteed in the Preamble of the Constitution; the
fundamental rights and the directive principles
which are the trinity of the Constitution to remove
social, educational and economic backwardness as
a constitutional policy to accord equality of
opportunity, social status or dignity of person as is
enjoined in Articles 14, 15, 16, 21, 38, 39, 39-A, 46
etc. Article 335 enjoins the State to take the claims
of Dalits and Tribes into consideration for
appointment to an office/post in the services of the
State consistently with efficiency of administration.
Though OBCs are socially and educationally not
forward, they do not suffer the same social
handicaps inflicted upon Scheduled Castes and
Scheduled Tribes. Articles 15(2) and 17 furnish
evidence of historical and social dissatisfaction
inflicted on them. The object of reservation for the
Scheduled Castes and Scheduled Tribes is to bring
them into the mainstream of national life, while the
objective in respect of the backward classes is to
remove their social and educational handicaps.
Therefore, they are always treated as dissimilar
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and they do not form an integrated class with
Dalits and Tribes for the purpose of Article 16(4)
or 15(4). Obviously, therefore, proviso to Rule 13
confines the 5% further cut-off marks in the
Preliminary Examination from the lowest range
fixed for general candidates. So, it is confined only
to the Scheduled Castes and Scheduled Tribes who
could not secure total aggregate marks on a par
with the general candidates. The rule expressly
confines the benefit of the proviso to Scheduled
Castes and Scheduled Tribes. By process of
interpretation, OBCs cannot be declared alike the
Scheduled Castes and Scheduled Tribes. Therefore,
the contention that in view of the doctrine of fusing
“any backward class of citizen” in Article 16(4),
further classification of Scheduled Castes and
Scheduled Tribes and OBCs as distinct classes for
the purpose of reservation and omission to extend
the same benefits to OBCs violates Article 14 is
devoid of substance. If the logic of equality as
propounded by minority Judge is given acceptance,
logically they are also entitled to reservation of
seats in the House of the People or in the
Legislative Assemblies of States, though confined
to Scheduled Tribes and Scheduled Castes, by
operation of Article 334(a) of the Constitution with
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a non obstante clause engrafted therein. The
Founding Fathers of the Constitution, having been
alive to the dissimilarities of the socio-economic
and educational conditions of the Scheduled Castes
and Scheduled Tribes and other segments of the
society have given them separate treatment in the
Constitution. The Constitution has not expressly
provided such benefits to the OBCs except by way
of specific orders and public notifications by the
appropriate Government. It would, therefore, be
illogical and unrealistic to think that omission to
provide same benefits to OBCs, as was provided to
Scheduled Castes and Scheduled Tribes, was void
under Articles 16(1) and 14 of the Constitution.
24. Reliance is also placed on the judgment of Hon’ble the Supreme
Court in the matter of “Ram Bhagat Singh and another versus State of
Haryana and another” reported as 1997 (11) SCC 417. The relevant extract
thereof reads thus:-
4. We are of the opinion that equality of
opportunity should be striven for and ensured in
public employment. Steps should be taken to see
where unequals are competing, conditions must be
created by relaxation or otherwise so that unequals
compete in terms of equality with others in respect
of jobs and employments of the State. Our
Constitution so enjoins it. Article 38 of the
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Constitution read with Articles 14, 15 and 16 so
mandates it. In order, therefore, to give those who
are unequals, and it is accepted that Scheduled
Castes and Scheduled Tribes for reasons historical
or otherwise, are unequal with the general
members of the community in respect of ability and
qualification for public employment. Hence, in
order to make the unequals compete on conditions
of equality certain relaxations and other factors
ensuring equality are imperative. Those groups or
segments of society which are by reasons of history
or otherwise unable to compete in terms of
absolute equality with the members of other
communities or groups in the society, should be
ensured and assured chances of competing in terms
of equality. They must be helped to compete
equally but it is important to emphasise that
equality of opportunity is sought to be achieved for
the public services or employment. The efficacy
and efficiency of that service is of prime
consideration. Equality must be there for all to
compete for the public services. Public services
and public employment do not exist for providing
jobs in terms of equality or otherwise to all. Public
services and public employment must serve only
public purpose and anything that hampers or
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impairs the efficiency or efficacy of public services
cannot and should not be permitted in ensuring
conditions of constitutional equality. These should
be done objectively, rationally and reasonably. As
is often said, it may be that need to ensure equality
for Scheduled Castes and Scheduled Tribes should
not be surrendered on the facile and value-based
perception of efficiency. Yet efficiency must be
ensured. Real equality must be accorded.
5. As mentioned hereinbefore, the contention of the
petitioners is that 55 per cent marks in aggregate
in all papers including viva voce constitute rather a
high standard for qualification and eligibility. They
contend that for most of the Scheduled Caste and
Scheduled Tribe aspirants for the job it is difficult
to achieve that standard. It is said that in other
parts of this vast land of ours the standard is not as
high as that. Shri Venkatramani, advocate for the
petitioners, contended that in other States on an
all-India basis such a high standard of marks is not
envisaged. Shri Mahabir Singh, learned advocate
appearing for the State of Haryana and Shri C.M.
Nayar, learned advocate for the Public Service
Commission, contend that it must be presumed that
the minimum percentage desirable for the purpose
of efficiency has been prescribed. It was further
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submitted by Shri Nayar that in respect of
candidates other than Scheduled Castes and
Scheduled Tribes, normally those obtaining far
higher than 55 per cent marks become eligible for
consideration. That may or may not be so but what
is required is that we must ensure efficiency in
administration. We must, therefore, objectively,
rationally and by a conscious process — conscious
in the sense by application of mind to the relevant
factors arrive at a percentage which should be
considered to be a minimum one in order to ensure
the efficiency of the administration. We are
conscious that high efficiency is required because
the recruitment is in the judicial branch, that is to
say, for prospective judicial officers who will be in
charge of administration of justice in the country.
But at the same time, if possible, in order to ensure
that there is equality of opportunity, a percentage
should be fixed without, in any way, compromising
with the efficiency required for the job which will
be attainable by backward communities, that is to
say, Scheduled Castes and Scheduled Tribes.
Unless such a percentage is fixed on the aforesaid
basis and a percentage is fixed for qualification
which would normally be unattainable by the
Scheduled Castes and Scheduled Tribes determined
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on an objective basis, it would not be possible to
ensure equality of opportunity. Both Shri Mahabir
Singh and Shri Nayar have urged that the minimum
must be presumed to have been so fixed in the
Haryana Service. However, that fact is not
apparent and there is nothing on record to indicate
that this percentage was fixed deliberately on an
analysis and careful examination and
determination on the lines and the principles
indicated above.
25. He further contends that an advertisement of the public
employment is required to disclose all specifications including the number
of posts, qualifications as well as eligibility criteria to ensure transparency
and to prevent arbitrariness and that where an advertisement does not
conform to the aforesaid requirements, the entire selection process stands
vitiated and is liable to be set aside.
ARGUMENTS BY THE COUNSEL FOR THE RESPONDENTS
26. Learned Counsel appearing on behalf of the respondents,
however, contends that the submissions by the petitioners are grossly
misconceived and not based upon correct and proper appreciation of the
facts of the present case and as also the position in law. He contends that the
petitioners have misunderstood the clause and its nature and have failed to
comprehend that there has been no alteration or change of the eligibility as
prescribed under the statutory rules. All candidates who fulfill the eligibility
as prescribed in the statutory rules are entitled to participate and were
allowed by the Commission to compete with other candidates in the
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selection process. The ‘criteria’ prescribed by the Commission for making a
meritorious selection cannot be equated to altering the eligibility condition.
The respondent-HPSC being the recruiting agency is required to make
recommendations of meritorious candidates in a fair and transparent
selection process by affording equality of opportunity. The relaxations
available to the candidates belonging to the reserved categories have already
been prescribed in the advertisement including relaxation in the upper age
and such benefits have also been extended to those candidates.
27. He further contends that the shortlisting criteria for
recommendation of the meritorious candidate in a process of selection to be
conducted through different phases cannot be impugned at the instance of a
person/candidate who could not cross over to the next stage by alleging it to
be prescribing a different eligibility. The selection process in the present
case was in a phased manner and in order to move on to the next stage, a
candidate was required to clear the minimum prescribed standards at the
previous stage. Hence, each candidate is required to clear the screening test
with minimum 25% marks and fall within the number of times the
candidates to be called to participate in the subject knowledge test i.e stage
two of the selection process. To be called for the Viva Voce i.e. the phase-III
of the selection process, each candidate was again required to cross the
minimum threshold of 35% marks and to fall in twice the number of times of
the number of posts advertised. Every candidate would lose a right to move
to the next stages of the selection process in case he/she failed to meet the
minimum qualifying criteria. The petitioners in the present case could not
cross the threshold of the minimum eligibility prescribed for moving to the
next phase, hence, they have no right to be called for the Viva Voce to be
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conducted by the respondent-HPSC. He submits that there is no mandate
that in the event of the total number of qualified candidates being less than
the number of times the candidates who could be called, the minimum
qualifying standard could be relaxed. The criteria of calling the number of
times of the candidates, proportionate to the vacancies, prescribes the
maximum number of candidates and not the minimum number of candidates
who must necessarily be called. Hence, if a lesser number of candidates
qualify the benchmark criteria of merit, the persons who could not attain the
benchmark merit cannot claim that a right would thereafter accrue in their
favour to be called for interview.
28. Learned Counsel further argues that there being no change in
the Service Rules or the eligibility conditions, hence, it cannot be alleged
that the Public Service Commission has violated the statutory rules and thus
stepped on to the terrain of the State Government or that in doing so, it has
carried out an amendment of the notified Service Rules under Article 309 of
the Constitution of India or that its act is in violation of Article 320 of the
Constitution of India.
29. Learned Counsel for the respondent further contends that the
submissions advanced by the Counsel for the petitioners that the Rules of the
game have been changed after the publication of advertisement is
misconceived. He submits that even though originally the advertisement
dated 21.06.2024 prescribed the cut-off date as 05.07.2024, however, a
Corrigendum was issued on 05.07.2024 whereby the last date for submission
of the application was extended to 30.08.2024. The Public Announcement
disclosing the selection criteria was published on 20.07.2024 i.e. well before
the last date of submission of the application. It is thus not a case where any
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changes/alterations in the selection process has been undertaken by the
Commission after the last date of submission of the application forms. The
arguments of the petitioner against the same do not refer to the effect of
extension of the last date and hence would not stand merit.
30. Learned Counsel further argues that merely because certain
posts remain vacant cannot also be the basis to accept the plea of the
petitioners. The Commission is required to maintain a minimum standard of
merit and that benchmark requirement of 35% marks in the subject
knowledge test, especially when the petitioners are required to provide
medical facilities to the patients, cannot be said to be an onerous condition.
The said percentage is even lower than the minimum pass percentage which
each candidate is required to obtain for being awarded the degree itself. The
situation may have been somewhat different where the subject knowledge
test prescribed a much higher percentage of marks to be secured in the
subject knowledge test than the qualifying marks required for acquiring the
degree/eligibility. The prescription of having a benchmark percentage in the
subject knowledge test to be called for Viva Voce hence cannot be held as
arbitrary or discriminatory or to be violative of Articles 14, 15 or 16 of the
Constitution of India.
31. He further submits that mere prescribing of minimum
benchmark knowledge for all the candidates should not be construed as if
each candidate is being forced to compete with persons belonging to the
General Category. So far as his or her merit is concerned, the same has to be
drawn only from amongst the candidates belonging to the respective
category. Thus, while the candidates belonging to the General Category may
have an overall higher merit, the candidate belonging to the reserved
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category is to be recommended on the basis of the inter se merit of the
candidates from the said category alone. They are thus not being made to
compete with the General Category candidates.
32. In support of his arguments, he places reliance on the following
judgment of Hon’ble the Supreme Court in the matter of “Tej Prakash
Pathak and others versus Rajasthan High Court and others” reported as
2025 (2) SCC 1. The constitutional Bench of Hon’ble the Supreme Court has
considered the entire law including the judgment of “K. Manjushree versus
State of Andhra Pradesh” reported as (2008) 3 SCC 512 relied upon by the
respondent. The relevant extract thereof reads thus:-
49. The ultimate object of any process of selection
for entry into a public service is to secure the best
and the most suitable person for the job, avoiding
patronage and favouritism. Selection based on
merit, tested impartially and objectively, is the
essential foundation of any useful and efficient
public service. So, open competitive examination
has come to be accepted almost universally as the
gateway to public services. [Lila Dhar v. State of
Rajasthan, (1981) 4 SCC 159, para 4] It is now
well settled that while a written examination
assesses a candidate’s knowledge and intellectual
ability, an interview test is valuable to assess a
candidate’s overall intellectual and personal
qualities.
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50. While written examination has certain distinct
advantages over the interview test there are yet no
written tests which can evaluate a candidate’s
initiative, alertness, resourcefulness,
dependableness, cooperativeness, capacity for
clear and logical presentation, effectiveness in
discussion, effectiveness in meeting and dealing
with others, adaptability, judgment, ability to make
decision, ability to lead, intellectual and moral
integrity. [ See Lila Dhar case, (1981) 4 SCC 159,
para 5] Thus, the written examination assesses the
man’s intellect and the interview test the man
himself and “the twain shall meet” for a proper
selection. [ See Lila Dhar case, (1981) 4 SCC 159,
para 6]
51. What is clear from above is that the object of
any process of selection for entry into a public
service is to ensure that a person most suitable for
the post is selected. What is suitable for one post
may not be for the other. Thus, a degree of
discretion is necessary to be left to the employer to
devise its method/procedure to select a candidate
most suitable for the post albeit subject to the
overarching principles enshrined in Articles 14 and
16 of the Constitution as also the rules/statute
governing service and reservation.
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52. Thus, in our view, the appointing
authority/recruiting authority/competent authority,
in absence of rules to the contrary, can devise a
procedure for selection of a candidate suitable to
the post and while doing so it may also set
benchmarks for different stages of the recruitment
process including written examination and
interview. However, if any such benchmark is set,
the same should be stipulated before the
commencement of the recruitment process. But if
the extant Rules or the advertisement inviting
applications empower the competent authority to
set benchmarks at different stages of the
recruitment process, then such benchmarks may be
set any time before that stage is reached so that
neither the candidate nor the
evaluator/examiner/interviewer is taken by
surprise.
53. The decision in K. Manjusree does not
proscribe setting of benchmarks for various stages
of the recruitment process but mandates that it
should not be set after the stage is over, in other
words after the game has already been played. This
view is in consonance with the rule against
arbitrariness enshrined in Article 14 of the
Constitution and meets the legitimate expectation
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of the candidates as also the requirement of
transparency in recruitment to public services and
thereby obviates malpractices in preparation of
select list.
(D) Rule does not apply with equal strictness to
steps for selection
54. As already noticed in Section (A), a recruitment
process inter alia comprises of various steps like
inviting applications, scrutiny of applications,
rejection of defective applications or elimination of
ineligible candidates, conducting examinations,
calling for interview or viva voce and preparation
of list of successful candidates for appointment.
Subject to the rule against arbitrariness, how tests
or viva voce are to be conducted, what questions
are to be put, in what manner evaluation is to be
done, whether a shortlisting exercise is needed are
all matters of procedure which, in absence of rules
to the contrary, may be devised by the competent
authority. Often advertisement(s) inviting
applications are open-ended in terms of these steps
and leave it to the discretion of the competent
authority to adopt such steps as may be considered
necessary in the circumstances albeit subject to the
overarching principle of rule against arbitrariness
enshrined in Article 14 of the Constitution.
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xxx xxx xxx xxx xxx xxx xxx
56. In M.P. Public Service Commission v. Navnit
Kumar Potdar [M.P. Public Service
Commission v. Navnit Kumar Potdar, (1994) 6
SCC 293] the question which arose before this
Court was as to whether in the process of short-
listing, the Commission has altered or substituted
the criteria or the eligibility of a candidate to be
considered for being appointed against the post of
Presiding Officer, Labour Court. In that context it
was observed : (SCC pp. 296-97, para 6)
“6. … It may be mentioned at the outset that
whenever applications are invited for recruitment
to the different posts, certain basic qualifications
and criteria are fixed and the applicants must
possess those basic qualifications and criteria
before their applications can be entertained for
consideration. The Selection Board or the
Commission has to decide as to what procedure is
to be followed for selecting the best candidates
from amongst the applicants. In most of the
services, screening tests or written tests have been
introduced to limit the number of candidates who
have to be called for interview.
xxx xxx xxx xxx xxx xxx xxx
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57. Likewise in Union of India v. T. Sundararaman
[Union of India v. T. Sundararaman, (1997) 4 SCC
664] where the eligibility conditions referred to a
minimum of 5 years’ experience, the selection
committee was held justified in shortlisting those
candidates with more than 7 years’ experience
having regard to the large number of applicants
compared to the vacancies to be filled. The
relevant observations are being extracted below :
(SCC pp. 665-66, para 4)
“4. … Note 21 to the advertisement expressly
provides that if a large number of applications are
received the Commission may shortlist candidates
for interview on the basis of higher qualifications
although all applicants may possess the requisite
minimum qualifications. In M.P. Public Service
Commission v. Navnit Kumar Potdar [M.P. Public
Service Commission v. Navnit Kumar Potdar,
(1994) 6 SCC 293] this Court has upheld
shortlisting of candidates on some rational and
reasonable basis. In that case, for the purpose of
shortlisting, a longer period of experience than the
minimum prescribed was used as a criterion by the
Public Service Commission for calling candidates
for an interview. This was upheld by this Court.
In State of A.P. v. P. Dilip Kumar [State of
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A.P. v. P. Dilip Kumar, (1993) 2 SCC 310] also
this Court said that it is always open to the
recruiting agency to screen candidates due for
consideration at the threshold of the process of
selection by prescribing higher eligibility
qualification so that the field of selection can be
narrowed down with the ultimate objective of
promoting candidates with higher qualifications to
enter the zone of consideration. The procedure,
therefore, adopted in the present case by the
Commission was legitimate.”
58. Similarly, in Tridip Kumar Dingal v. State of
W.B. [Tridip Kumar Dingal v. State of W.B., (2009)
1 SCC 768] it was held that shortlisting is
permissible on the basis of administrative
instructions provided the action is bona fide and
reasonable. The relevant observations in the
judgment are extracted below : (SCC p. 779, para
38)
“38. … The contention on behalf of the State
Government that written examination was for
shortlisting the candidates and was in the nature of
“elimination test” has no doubt substance in it in
view of the fact that the records disclose that there
were about 80 posts of Medical Technologists and
a huge number of candidates, approximately 4000
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applied for appointment. The State authorities had,
therefore, no other option but to “screen”
candidates by holding written examination. It was
observed that no recruitment rules were framed in
exercise of the power under the proviso to Article
309 of the Constitution and hence no such action
could be taken. In our opinion, however, even in
absence of statutory provision, such an action can
always be taken on the basis of administrative
instructions–for the purpose of “elimination” and
“shortlisting” of huge number of candidates
provided the action is otherwise bona fide and
reasonable.”
59. Another example is in respect of fixing different
cut-offs for different subjects having regard to the
relative importance of the subjects and their degree
of relevance. [Banking Service Recruitment
Board v. V. Ramalingam, (1998) 8 SCC 523] These
instances make it clear that this Court has been
lenient in letting recruiting bodies devise an
appropriate procedure for successfully concluding
the recruitment process provided the procedure
adopted has been transparent, non-
discriminatory/non-arbitrary and having a rational
nexus to the object sought to be achieved.
(emphasis supplied)
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33. He further makes a reference to the judgment of this Court in
the matter of “Ajay Pal Singh and others versus State of Punjab and
others” reported as (2014) SCC OnLine P&H 23766. The relevant extract
thereof reads thus:-
2. The question of law raised by the
petitioner is as to whether a test can be prescribed
for judging the suitability of scheduled caste
candidates along with the general category
candidates who possess the minimum prescribed
educational qualification or whether scheduled
caste candidates are to be tested on their ability
which have been issued by the Punjab Government.
In other words, the issue raised is that the
scheduled caste candidates when are tested along
with general category candidates, then they should
be tested and appointed by lowering their merit
against the posts which were meant for reserved
category, otherwise it would make the reservation
meaningless. This argument is based on the
assumption that as a matter of long practice of
lowering the threshold marks for scheduled caste
candidates vis-a-vis the open general category
candidates for selection and appointment on public
posts.
xxx xxx xxx xxx xxx xxx xxx
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7. …….The moot note in the advertisement on
which this case turns reads as follows:
“Note: Minimum qualifying marks for candidates
of all categories will be 35% (Thirty-Five Percent)
of the total marks. In case some qualifying
candidates obtain equal marks then for selection,
preference will be given to a candidate with higher
score in the Graduation degree.”
xxx xxx xxx xxx xxx xxx xxx
12. The position which emerges from shortlisting
and lowering the marks for reserved category is to
treat them as a separate class to bring them to the
stage of the main selection and in this manner, the
purpose of shortlisting would be achieved without
prescribing any minimum cut-off marks but these
principles are not extended to the main selection or
written examination from which will come the
pantheon of the successful.
xxx xxx xxx xxx xxx xxx xxx
14…………. For the posts which are to be filled in
through the exclusive competitive examination
process, the candidates belonging to the scheduled
caste and backward class categories who will
secure the minimum prescribed standard of merit
will be considered against the reserved posts and
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the competition of their suitability will be held
amongst themselves. This is the subtle difference
that stands culled out of the 1969 instructions by
the policy maker which were once good but have
fallen into disuse or desuetude. The State remain
well within its rights to determine the suitability of
candidates in a selection process and once it has
set the rules of the game, the same has to be
adhered to it, otherwise, it would be snubbed for
having acted arbitrarily and in a discriminatory
manner. It also remains within its jurisdiction to
test the suitability for appointments to public
service to build efficiency in administration. I find
nothing unconstitutional, irrational, unfair or
arbitrary in State action in adhering to the cut off
percentage of marks for eligibility to successfully
run its administration or that the prescription tends
to treat unequals unequally. The State can be seen
only guarding and watching its impersonal
interests not aimed at a class or classes of persons.
Besides, if the petitioners were aggrieved by the
prescription of 35% marks they should have laid
the challenge in a court of law before entering the
examination hall. If they failed in their attempt they
cannot be allowed to usurp unfilled vacancies for no
valid rhyme or reason.
(emphasis supplied)
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34. He submits that even though the aforesaid judgment was
challenged in the LPA No. 347 of 2015, however, there is no stay on the said
judgment and the Letters Patent Appeal has been admitted.
35. A reliance is also placed on the judgment of Hon’ble the
Supreme Court in the matter of “KH Siraj versus High Court of Kerala and
others” reported as (2006) 6 SCC 395. The relevant extract thereof reads
thus:-
48. In this background, two questions raised by Mr
L.N. Rao have to be considered:
1. The prescription of minimum mark for the
oral examination as a condition of eligibility
for selection as Munsif Magistrate is not
authorised by Rule 7 of the Kerala Judicial
Service Rules, 1991;
2. The select list has not been prepared in
accordance with Rules 14 to 17 of the KSSSR,
1958.
xxx xxx xxx xxx xxx xxx xxx
50. What the High Court has done by the
notification dated 26-3-2001 is to evolve a
procedure to choose the best available talent. It
cannot for a moment be stated that prescription of
minimum pass marks for the written examination
or for the oral examination is in any manner
irrelevant or not having any nexus to the object
sought to be achieved. The merit of a candidate
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and his suitability are always assessed with
reference to his performance at the examination
and it is a well-accepted norm to adjudge the merit
and suitability of any candidate for any service,
whether it be the Public Service Commission (IAS,
IFS, etc.) or any other. Therefore, the powers
conferred by Rule 7 fully justified the prescription
of the minimum eligibility condition in Rule 10 of
the notification dated 26-3-2001. The very concept
of examination envisaged by Rule 7 is a concept
justifying prescription of a minimum as benchmark
for passing the same. In addition, further
requirements are necessary for assessment of
suitability of the candidate and that is why power is
vested in a high-powered body like the High Court
to evolve its own procedure as it is the best judge
in the matter. It will not be proper in any other
authority to confine the High Court within any
limits and it is, therefore, that the evolution of the
procedure has been left to the High Court itself.
When a high-powered constitutional authority is
left with such power and it has evolved the
procedure which is germane and best suited to
achieve the object, it is not proper to scuttle the
same as beyond its powers. Reference in this
connection may be made to the decision of this
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Court in Union of India v. Kali Dass
Batish [(2006) 1 SCC 779] wherein an action of
the Chief Justice of India was sought to be
questioned before the High Court and it was held
to be improper.
xxx xxx xxx xxx xxx xxx xxx
73. The appellant-petitioners having participated
in the interview in this background, it is not open to
the appellant-petitioners to turn round thereafter
when they failed at the interview and contend that
the provision of a minimum mark for the interview
was not proper. It was so held by this Court in para
9 of Madan Lal v. State of J&K [(1995) 3 SCC
486] as under: (SCC p. 493)
“9. Before dealing with this contention, we must
keep in view the salient fact that the petitioners as
well as the contesting successful candidates being
respondents concerned herein, were all found
eligible in the light of marks obtained in the written
test, to be eligible to be called for oral interview.
Up to this stage there is no dispute between the
parties. The petitioners also appeared at the oral
interview conducted by the members concerned of
the Commission who interviewed the petitioners as
well as the contesting respondents concerned. Thus
the petitioners took a chance to get themselves
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selected at the said oral interview. Only because
they did not find themselves to have emerged
successful as a result of their combined
performance both at written test and oral
interview, they have filed this petition. It is now
well settled that if a candidate takes a calculated
chance and appears at the interview, then, only
because the result of the interview is not palatable
to him, he cannot turn round and subsequently
contend that the process of interview was unfair or
the Selection Committee was not properly
constituted. In Om Prakash Shukla v. Akhilesh
Kumar Shukla [1986 Supp SCC 285] it has been
clearly laid down by a Bench of three learned
Judges of this Court that when the petitioner
appeared at the examination without protest and
when he found that he would not succeed in
examination he filed a petition challenging the said
examination, the High Court should not have
granted any relief to such a petitioner.”
(emphasis supplied)
36. He also places reliance on the judgment of the Gauhati High
Court in the Writ Petition (Civil) No.5284 of 2011 decided on 21.06.2023
titled as “Ranjit Kumar Basumatary versus State of Assam and others“.
The relevant extract thereof reads thus:-
3…….It further reveals that the Rules of 1995 was
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amended vide the Assam Taxation Service
(Amendment) Rules, 2005 (hereinafter referred to
as the “Amending Rules”). Rule 3(ii) of the
Amending Rules stipulates that a Note shall be
inserted to Rule 11(f). In terms with the said
amendment therefore, the Note so inserted reads as
under:
“Note :- The rules for Departmental Written Test
are given in Schedule III”.
4. In the said Amending Rules, there is Schedule
III. In Schedule III, Clause 4(i) stipulates that the
written test shall be taken on one paper of total 100
marks consisting of various subjects. Clause 4(ii)
stipulates that the duration of the written test shall
be 3 (three) hours. Clause 4(iii) stipulates that the
qualifying marks to be secured by the candidate in
the written test to be eligible for consideration for
promotion shall be 45% marks.
5. In the backdrop of the above, it is therefore
relevant to take note of that the Petitioner herein
admittedly got 42 marks and did not have the
qualifying marks of 45%. It is under such
circumstances the instant writ petition has been
filed seeking a Writ of Mandamus upon the State
Respondents to give relaxation to the Petitioner as
the Petitioner belongs to the Schedule Tribe
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(Plains) category on the basis of the proviso to
Article 335 of the Constitution.
xxx xxx xxx xxx xxx xxx xxx
7. Now, the question therefore arises as to whether
this Court in exercise of powers under Article 226
of the Constitution can issue a Writ in the nature of
Mandamus directing the State to make any
provision in terms with the proviso to Article 335
of the Constitution thereby granting relaxation in
the instant case. This Court finds it relevant at this
stage to take note of the judgment of the Supreme
Court in the case of Chairman and Managing
Director, Central Bank of India and Others Vs.
Central Bank of India SC/ST Employees Welfare
Association and Others reported in (2015) 12 SCC
308 wherein the Supreme Court was dealing with a
question as to whether the Court can issue a
Mandamus directing the State to grant benefits in
terms with Clauses (4) or (4A) of Article 16 of the
Constitution which are enabling provisions. The
Supreme Court at paragraph No.26 categorically
observed that it is for the State to act in a given
situation and to take such affirmative action. It was
further held that though the power lies with the
State but the Courts cannot issue a Mandamus to
the State to necessarily make such a provision.
Paragraph No.26 of the said judgment being
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relevant is quoted hereinunder:
“26. In the first instance, we make it clear that
there is no dispute about the constitutional position
envisaged in Articles 15 and 16, insofar as these
provisions empower the State to take affirmative
action in favour of SC/ST category persons by
making reservations for them in the employment in
the Union or the State (or for that matter, public
sector/authorities which are treated as State under
Article 12 of the Constitution). The laudable
objective underlying these provisions is also to be
kept in mind while undertaking any exercise
pertaining to the issues touching upon the
reservation of such SC/ST employees. Further,
such a reservation can not only be made at the
entry level but is permissible in the matters of
promotions as well. At the same time, it is also to
be borne in mind that clauses (4) and (4-A) of
Article 16 of the Constitution are only the enabling
provisions which permit the State to make
provision for reservation of these category of
persons. Insofar as making of provisions for
reservation in matters of promotion to any class or
classes of post is concerned, such a provision can
be made in favour of SC/ST category employees if,
in the opinion of the State, they are not adequately
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represented in services under the State. Thus, no
doubt, power lies with the State to make a
provision, but, at the same time, courts cannot
issue any mandamus to the State to necessarily
make such a provision. It is for the State to act, in a
given situation, and to take such an affirmative
action. Of course, whenever there exists such a
provision for reservation in the matters of
recruitment or the promotion, it would bestow an
enforceable right in favour of persons belonging to
SC/ST category and on failure on the part of any
authority to reserve the posts, while making
selections/promotions, the beneficiaries of these
provisions can approach the Court to get their
rights enforced. What is to be highlighted is that
existence of provision for reservation in the matter
of selection or promotion, as the case may be, is
the sine qua non for seeking mandamus as it is only
when such a provision is made by the State, a right
shall accrue in favour of SC/ST candidates and not
otherwise.”
8. In the instant case as the proviso to Article 335
of the Constitution is an enabling provision
whereby power has been exclusively reserved to
the Union or the State, this Court is of the opinion
that the Mandamus so sought for by way of the
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instant writ petition cannot be issued.
(emphasis supplied)
37. A further reliance is also placed on the judgment of Hon’ble the
Supreme Court in the matter of “State of Uttar Pradesh versus Karunesh
Kumar and others” reported as (2022) SCC ONLINE SC 1706 to contend
that the petitioners, despite being fully aware of the selection criteria never
challenge the same till the result of subject knowledge test was declared. He
thus contends that challenge at the behest of a candidate who participate in
the selection process despite being fully aware of all the terms and
conditions and declaration of a result is uncalled for and such writ petitions
deserves to be dismissed. The relevant extract thereof reads thus:
21. A candidate who has participated in the
selection process adopted under the 2015 Rules is
estopped and has acquiesced himself from
questioning it thereafter, as held by this Court in
the case of Anupal Singh (supra):
“55. Having participated in the interview, the
private respondents cannot challenge the Office
Memorandum dated 12-10-2014 and the
selection. On behalf of the appellants, it was
contended that after the revised Notification dated
12-10-2014, the private respondents participated in
the interview without protest and only after the
result was announced and finding that they were
not selected, the private respondents chose to
challenge the revised Notification dated 12-10-
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2014 and the private respondents are estopped
from challenging the selection process. It is a
settled law that a person having consciously
participated in the interview cannot turn around
and challenge the selection process.
56. Observing that the result of the interview
cannot be challenged by a candidate who has
participated in the interview and has taken the
chance to get selected at the said interview and
ultimately, finds himself to be unsuccessful,
in Madan Lal v. State of J&K [(1995) 3 SCC
486 : 1995 SCC (L&S) 712], it was held as under :
(SCC p. 493, para 9)
“9. … The petitioners also appeared at the oral
interview conducted by the Members concerned of
the Commission who interviewed the petitioners as
well as the contesting respondents concerned. Thus
the petitioners took a chance to get themselves
selected at the said oral interview. Only because
they did not find themselves to have emerged
successful as a result of their combined
performance both at written test and oral
interview, they have filed this petition. It is now
well settled that if a candidate takes a calculated
chance and appears at the interview, then, only
because the result of the interview is not palatable
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to him, he cannot turn round and subsequently
contend that the process of interview was unfair or
the Selection Committee was not properly
constituted.”
57. In K.H. Siraj v. High Court of Kerala [(2006) 6
SCC 395 ], it was held as under : (SCC p. 426,
para 73)
“73. The appellant-petitioners having participated
in the interview in this background, it is not open to
the appellant-petitioners to turn round thereafter
when they failed at the interview and contend that
the provision of a minimum mark for the interview
was not proper.”
58. In Union of India v. S. Vinodh Kumar [(2007) 8
SCC 100 ], it was held as under : (SCC p. 107,
para 19)
“19. In Chandra Prakash Tiwari v. Shakuntala
Shukla [(2002) 6 SCC 127] ….
xxx xxx xxx xxx xxx xxx xxx
It was further observed : (SCC p. 149, para 34)
’34. There is thus no doubt that while question of
any estoppel by conduct would not arise in the
contextual facts but the law seem to be well settled
that in the event a candidate appears at the
interview and participates therein, only because
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the result of the interview is not “palatable” to
him, he cannot turn round and subsequently
contend that the process of interview was unfair or
there was some lacuna in the process.”
59. Same principle was reiterated in Sadananda
Halo v. Momtaz Ali Sheikh [(2008) 4 SCC 619]
wherein, it was held as under : (SCC pp. 645-46,
para 59)
“59. It is also a settled position that the
unsuccessful candidates cannot turn back and
assail the selection process. There are of course
the exceptions carved out by this Court to this
general rule. This position was reiterated by this
Court in its latest judgment in Union of India v. S.
Vinodh Kumar [(2007) 8 SCC 100 ] …. The Court
also referred to the judgment in Om Prakash
Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC
285], where it has been held specifically that when
a candidate appears in the examination without
protest and subsequently is found to be not
successful in the examination, the question of
entertaining the petition challenging such
examination would not arise.”
38. A reliance is also placed on the Division Bench judgment of the
Allahabad High Court passed in “Noor Ali Ansari versus State of U.P. and
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others” reported as 2008 (21) SCT 868 The relevant extract thereof reads
thus:-
18. Thus, only in exceptional cases, for compelling
interest of the reserved category candidates, the
State may relax the qualifying marks after
identification by weighing the comparable data,
without affecting general efficiency of service as
mandated under Article 335 of the Constitution.
19. In view of the above, the law can be
summarised as that In order to make the
appointments in higher judicial service, if the
Legislature has conferred a discretion upon the
High Court to evolve a procedure to find out the
best suitable candidates and such a procedure Is
evolved, It does not require any interference merely
because the enabling provision providing for
reservation or relaxation has not been put to use.
39. No other arguments has been advanced nor any other judgment
cited by the Counsel for the respective parties.
40. I have heard learned Counsel appearing on behalf of the
respective parties and have gone through the documents as well as the
judgments available on record.
CONSIDERATION
41. The core question that arises for consideration before this Court
is as to whether providing a minimum qualifying benchmark for a Candidate
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to move from one stage to the next in a process of selection amounts to
prescription of an eligibility by the Public Service Commission or the same
is only a ‘criteria for recruitment’ which is fully within the domain of the
respective Public Service Commission.
42. It is well established that the fundamental aim of any
recruitment process for public service positions is to ensure the selection of
the most qualified and suitable candidate for the role. To achieve this
objective, the appointing/recruiting agency is empowered to formulate a fair
and appropriate selection methodology. This includes the discretion to
prescribe the selection criteria so as to objectively assess the merit and
suitability of candidates.
43. This brings us to the first critical issue that must be understood
i.e. the difference between the ‘eligibility and ‘criteria’ for a recruitment
process’. While ‘eligibility’ refers to the minimum qualifications or
conditions that a candidate must satisfy in order to be considered for
participation in the recruitment process, a ‘criteria’ pertains to the
performance standards prescribed at different stages–such as written tests,
interviews, or other evaluations–to assess a candidate’s relative merit.
Understanding this distinction is essential, as it clarifies the scope of
authority exercised by the recruiting body.
44. While one may loosely forget the subtle distinction between the
two and assume a criteria to be an eligibility but the same are distinct in their
meaning, scope and application. In a layman’s understanding an “eligibility’
prescribes “who can apply” pursuant to an advertisement while a “criteria” is
the “prescription” of a procedure which paves way for who gets selected
from amongst the eligible candidates.
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45. The casual layman’s understanding reflecting an
interchangeable use of the expression “eligibility” and “criteria” is not the
way in which a Court of law would apply the same. While failure to fulfill
the “eligibility” would lead to outright rejection of a candidate, but the
failure to steer through the criteria would have a consequence that a
candidate does not get selected, for being lower in merit. In the said
background and legal understanding of the expression it is now required to
examine whether prescription of a qualifying bench-mark for moving on to
the next phase in a selection process is an eligibility or a criteria.
46. Undeniably, the candidature of the petitioner has not been
rejected outrightly for not meeting the prescribed eligibility conditions. As a
matter of fact, the petitioners were issued the roll numbers and were issued
the admit cards to appear in the screening test. A minimum qualifying score
of 25% was prescribed therein. The petitioners cleared the same and were
issued fresh roll numbers to appear for the subject knowledge test. They
appeared for the same as well but failed to secure the qualifying 35% marks
to reach to the last phase i.e. viva-voce. Thus, in an essentiality the
petitioners got shot down for failing to meet the minimum prescribed criteria
for being called in for the interview, hence, it is not akin to petitioners
having been held ineligible. This now leads to the next issue as to whether
“eligibility” or “criteria” can be changed and if so, at what stage.
47. The position in law is well settled that an “eligibility” cannot be
changed arbitrarily once the recruitment process has commenced. The
selection has to be from amongst eligible candidates as per prescribed
eligibility as per the judgment in the matter of “Madan Mohan Sharma and
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another versus State of Rajasthan and others” reported as 2008 (3) SCC
724. The relevant extract is as under:-
“11. We have heard learned counsel for the parties
and perused the records. Mr M.R. Calla, learned Senior
Counsel appearing for the appellants has strenuously
urged that during the pendency of the selection process,
the eligibility criteria were changed and the date for
submission of the application in pursuance to the
advertisement was extended and Rule 266 of the Rules of
1996 came into being on 30-12-1996 whereby it was
provided that Higher Secondary Examination shall be the
criteria for preparing the merit list. As such, as per the
service rules, the selection should have been made on the
basis of Higher Secondary Examination marks and not on
the basis of Secondary Examination marks. We regret this
cannot be accepted. Once the advertisement had been
issued on the basis of the circular obtaining at that
particular time, the effect would be that the selection
process should continue on the basis of the criteria which
were laid down and it cannot be on the basis of the
criteria which has been made subsequently.
(Emphasis Supplied)
48. That being a position well settled so far as the eligibility is
concerned, the position in law with respect to selection criteria is fluid. The
Courts have, through judicial pronouncements have upheld the modifications
in the selection criteria provided it is reasonable, non-arbitrary and is
universally applied and subserves a larger public interest. Since the criteria
for selection is recognized as a yardstick for selection/assessment, hence,
judicial pronouncements have extended a leverage to the recruiting agency
to apply universal, non-discriminate bona fide evaluation methodology to
short-list meritorious candidates. The said aspect has been dealt with
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extensively by five judges bench of the Hon’ble Supreme Court in the matter
of “Tej Prakash Pathak (supra). The Hon’ble Supreme Court noticed the
judgment of K. Manjusree (supra) as well as K.H. Siraj (supra) observed that
the recruiting agency has the latitude to devise its procedure for selection
subject to the rule against arbitrariness. The process of selection being aimed
at securing the best suitable person, the discretion needs to be vested with
the agency to devise its methodology. It also upheld that the agency may
also set benchmarks. By referring to the judgment of the K. Manjusree
(supra) it was held that there is no proscribe to setting benchmarks for
various stages of the recruitment process but it should not be set after the
stage is over.
49. Before proceeding further, it is essential to take note of the
observations made by the Hon’ble Supreme Court in the case of Tej
Prakash Pathak v. Rajasthan High Court & Ors. (supra), particularly with
respect to the authority of the Commission to establish benchmarks within
the recruitment process. The Court’s remarks in this context are of
significant relevance to the issue at hand and provide critical guidance on the
extent and limits of the Commission’s powers in setting criteria for
selection. The relevant paragraphs are herein under:
52. Thus, in our view, the appointing
authority/recruiting authority/competent authority,
in absence of rules to the contrary, can devise a
procedure for selection of a candidate suitable to
the post and while doing so it may also set
benchmarks for different stages of the recruitment
process including written examination and
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interview. However, if any such benchmark is set,
the same should be stipulated before the
commencement of the recruitment process. But if
the extant Rules or the advertisement inviting
applications empower the competent authority to
set benchmarks at different stages of the
recruitment process, then such benchmarks may be
set any time before that stage is reached so that
neither the candidate nor the
evaluator/examiner/interviewer is taken by
surprise.
(Emphasis supplied)
50. Whilst the stage for an eligibility criteria is fixed as
commencement of recruitment process, the stage for the procedure for
bringing recruitment process to an end is only transparency, fairness, non-
discriminatory/non arbitrary universally applied methodology for advancing
large public interest.
51. Even though, the prescription of the benchmark is a selection
criteria/procedure to finalize selection and is not an eligibility, yet, even on
the said principle, it has remained undisputed that even though the
advertisement was issued on 21.06.2024 fixing the last date as 12.07.2024,
however, the last date was extended to 30.08.2024 while the corrigendum
dated 18.07.2024 was published in the newspapers providing the selection
procedure/criteria and requiring the minimum benchmark. Hence, the said
aspect was made known to all candidates at the stage of advertisement itself
and much before the closing date for submission of the applications. The
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same would thus not fall in the category of change of rules after the game
has began and is rather a notification of the rule before the process of
selection had taken-off and it was only at an application stage. The
expression used in the judgment being “…….the benchmark may be set
anytime before the stage is reached so that neither the candidate nor the
evaluator is taken by a surprise”, rather grants a much farther discretion to
the recruitment agency.
52. Furthermore, the ruling in K. Manjusree v. State of Andhra
Pradesh (supra) does not preclude the setting of such benchmarks. Instead,
it affirms that while authorities are free to establish qualifying standards,
these must be set prior to the commencement of each stage of the
recruitment process. In other words, the criteria cannot be introduced or
modified after a particular phase has concluded–essentially, the rules of the
game must be defined before it begins, not after it has been played. The
relevant observations are as follows:
33…….We may clarify that prescription of
minimum marks for any interview is not illegal. We
have no doubt that the authority making rules
regulating the selection, can prescribe by rules, the
minimum marks both for written examination and
interviews, or prescribe minimum marks for written
examination but not for interview, or may not
prescribe any minimum marks for either written
examination or interview. Where the rules do not
prescribe any procedure, the Selection Committee
may also prescribe the minimum marks, as stated
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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.
(Emphasis supplied)
53. I find myself in full agreement with the law laid down in K.
Manjushree (supra) as well as the judicial precedents cited by the learned
counsel for the petitioner, which clearly establish that while the eligibility
criteria for a recruitment process must be predetermined and cannot be
altered or prescribed mid-process, the recruiting commission is well within
its authority to set performance benchmarks for various stages of the
selection process. These benchmarks–unlike eligibility criteria–serve as
evaluative standards to determine merit and may be formulated by the
competent authority, provided they are established prior to the
commencement of the relevant stage.
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54. The stage in the present bunch of cases was set much before the
stage of screening test or subject knowledge test was reached. The
arguments of the petitioner thus lacks merit in view of the above and the
larger bench judgment in the matter of Tej Prakash Pathak (supra).
55. The judgments relied upon by the Counsel for the petitioner
being of a bench strength lesser than in Tej Prakash Pathak (supra) would
thus not be laying down any more biding law to the extent of the subject
rules therein.
56. Further, the principles of natural justice, particularly the right to
fair notice and the opportunity to compete on equal terms, are preserved in
the present case. The candidates were not caught unaware, nor were they
subjected to any retrospective change adversely affecting their prospects. On
the contrary, the three-month gap between the issuance of the impugned
order and the scheduled date of the written examination allowed ample time
for candidates to prepare accordingly. The Commission’s decision, therefore,
not only complies with the legal framework governing public recruitment
but also maintains fidelity to the broader constitutional values of fairness,
transparency, and equality of opportunity under Article 14. In light of these
considerations, the Commission’s actions appear to be legally sound,
reasonable, and consistent with established principles of administrative law.
57. The judgment in the matter of Manjit Singh (supra) being by a
Division Bench cannot be read above Tej Prakash Pathak (supra). Similarly
placed is the judgment in the matter of Durgacharan Misra (supra) which has
even been considered by the larger bench. Dr. Krushan Chandra Sahu
(supra) is also a division bench judgment which relied upon Durgacharan
Misra (supra). The position is no different in the matter of Sushil Kumar
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Pandey (supra) or in the matter of Pankaj Rane (supra). They would thus
need no further discussion. The next argument which arises is as to whether
the Commission could change the eligibility contrary to what has been
prescribed under the statutory Rules framed under Article 309 of the
Constitution of India or the power lay exclusively with the appointing
authority.
58. In so far as the above is concerned, since this Court has already
held that the prescription of the benchmarks in a phased selection process
does not tantamount to prescribing an eligibility and is only selection
procedure/criteria, hence, it would not be hit by Article 309 of the
Constitution of India or the limitation/functions prescribed under Article 320
of the Constitution of India. The position of law having been settled that
unless the law prescribes to the contrary. The recruiting agency has a
discretion to devise a universal non-discriminatory methodology for short-
listing meritorious candidates. It needs no further discussion that carrying
out selection through a phased manner bench-mark criteria that had been
applied universally cannot be said to be illegal, arbitrary, perverse,
discriminatory or perpetrated by malice. The arguments of the petitioners are
thus found to be lacking in merit in this regard.
59. The next argument that candidates belonging to reserved
categories are not being extended any relaxation in bench mark criteria and
hence are being unfairly discriminated is also held to be without any merit.
The provisions of Articles 14, 15 and 16 entitle the State to extend relaxation
of standards to the members belonging to the reserved communities,
however, the nature of relaxation to be extended is entirely within the
domain of the employer. It does not lie in the mouth of a candidate to
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demand any specific nature of relaxation. In the present case, relaxation of
age by five years has been deemed sufficient by the government and the
same cannot be said to be illegal. Needless to mention that ‘reservation’ is a
mode to achieve equality of opportunity as enshrined under Article 16 (1) of
the Constitution of India and concession or relaxation in age or fee are an aid
to reservation and to place them at par with general category candidates. The
upper age limit having been extended by 05 years in the advertisement has
been deemed adequate equalizer by the Government and in exercise of
power of judicial review, it does not lie with the High Court to determine
what further concession/relaxation ought to be extended.
60. Although reference has been made by the petitioners to the
judgment in the case of the Chattar Singh (supra), however, in the said case
the rules provided a relaxation of 5% marks to the members of reserved
category and the same was upheld. In the present case, the statutory service
rules do not provide any relaxation in the percentage of marks and hence the
judgment does not come to the aid of the petitioners. They have also failed
to make any reference to the Government instruction or Circulars which
entitle them to such a relief. In the absence thereof, the High Court cannot
grant relaxation over and above what the Government deems just and
appropriate as in doing so, it is deciding the criteria and procedure to be
adopted for determining merit, which is beyond the competence of the
Constitutional court. High Court sits in review of the legality of the process
of decision making and not on the decision itself. The decision of Govt.
cannot be held arbitrary/discriminatory or violative of Article 16 merely
because it does not fix a lower merit criteria for persons belonging to the
reserved categories.
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61. The judgment in the matter of Ram Bhagat Singh (supra) would
also not be applicable to the facts of the instant case since a benchmark of
55% marks had been prescribed. Significantly the said judgment was in the
context of the prevailing socio-economic conditions in the 80’s. The socio-
economic disparities are not as wide as they were more than four and half
decades earlier. The advancements in socio-economic structure and the
narrowing gap in the disparities may often be a valid reason to examine/re-
examine the concession to be extended. Even otherwise, as against a
benchmark of 55% prescribed then, a benchmark of 35% cannot be held as
excessively high more-so when a candidate is required to obtain 50% marks
to be awarded the degree of BAMS. The benchmark thus is reasonable and
cannot be held as irrational or lacking objectivity.
62. The prescribing of minimum benchmark does not mean that a
candidate belonging to a reserved category has to compete with general
category candidate. He/she still competes only in his specific category and
the benchmark is only a minimum cut-off. The inter-se merit is prepared
from amongst members belonging to the said category, in the respective
quota. The argument is thus a fictional figment of discrimination that is non-
existent. This Court also does not find any merit in the argument of
petitioner that at least twice the number of candidates should be called and if
the candidates securing the benchmark is less than the number of times the
candidates to be called or because the vacancies remain unfilled, the
benchmark be relaxed and other candidates be called for interview.
63. The advertisement provided twin conditions for moving
forward from one stage to the other viz.
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a. A minimum benchmark performance i.e. 25% in screening test
and 35% in Subject Knowledge Test; and
b. Candidate should fall in 4 times/ 2 times respectively at the
stage of screening test and Subject Knowledge Test to move to the
next stage.
64. In the event of a candidate not fulfilling either of the said
condition, his further consideration gets ousted and he can claim no further
right to himself either on the ground of vacancies having been left unfilled or
on account that the total number of candidates were less than the number of
times prescribed.
65. Apposite also to add that the aforesaid number of times
candidates to be called is the maximum number and not a minimum number.
Thus, for any person to claim consideration, both the conditions are to be
met.
66. I would find support in my above view also from the judgment
in the matter of “Bhanu Pratap versus State of Haryana and others“
reported as 2011 (15) SCC 304. In the said case, minimum qualifying mark
was prescribed. The agency allowed rounding of the marks to the nearest
round figure. The Hon’ble Supreme Court set aside the decision as allowing
relaxation below the minimum qualifying marks being in violation of the
norms. The relevant extract thereof reads thus:-
15. In the light of the records placed before us we
have considered the aforesaid submissions of the
counsel appearing for the parties. The relevant
Rules have already been extracted above. A bare
reading of the aforesaid Rules would make it
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crystal clear that in order to qualify in the written
examination a candidate has to obtain at least 33%
marks in each of the papers and at least 50%
qualifying marks in the aggregate in all the written
papers.
16. The further mandate of the Rules is that a
candidate would not be considered as qualified in
the examination unless he obtains at least 50%
marks in the aggregate including the viva voce test.
When emphasis is given in the Rules itself to the
minimum marks to be obtained making it clear that
at least the said minimum marks have to be
obtained by the candidate concerned there cannot
be a question of relaxation or rounding off as
sought to be submitted by the counsel appearing
for the appellant.
17. There is no power provided in the statute nor
was any such stipulation made in the advertisement
and also in the statutory Rules permitting any such
rounding off or giving grace marks so as to bring
up a candidate to the minimum requirement. In our
considered opinion, no such rounding off or
relaxation was permissible. The Rules are statutory
in nature and no dilution or amendment to such
Rules is permissible or possible by adding some
words to the said statutory Rules for providing or
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giving the benefit of rounding off or relaxation.
18. We may also draw support in this connection
from a decision of this Court in Vizianagaram
Social Welfare Residential School Society v. M.
Tripura Sundari Devi [(1990) 3 SCC 655]. In the
said judgment this Court has laid down that: (SCC
p. 658, para 6)
“6. … when an advertisement mentions a
particular qualification and an appointment is
made in disregard of the same, [then] it is not a
matter only between the appointing authority and
the appointee concerned. The aggrieved are all
those who had similar or even better qualifications
than the appointee or appointees but who had not
applied for the post because they did not possess
the qualifications mentioned in the advertisement.”
19. In Umrao Singh v. Punjabi University [(2005)
13 SCC 365] this Court while dealing with the
power of Selection Committee for relaxation of
norms held thus: (SCC p. 369, para 12)
“12. Another aspect which this Court has
highlighted is the scope for relaxation of norms.
Although the Court must look with respect upon the
performance of duties by experts in the respective
fields, it cannot abdicate its functions of ushering
in a society based on rule of law. Once it is most
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satisfactorily established that the Selection
Committee did not have the power to relax
essential qualification, the entire process of
selection so far as the selected candidate is
concerned gets vitiated. In P.K. Ramachandra
Iyer v. Union of India [(1984) 2 SCC 141] this
Court held that once it is established that there is
no power to relax essential qualification, the entire
process of selection of the candidate was in
contravention of the established norms prescribed
by advertisement. The power to relax must be
clearly spelt out and cannot otherwise be
exercised.”
20. Let us also examine the issue from another
angle. If rounding off is given to the appellant as
sought for by him there has to be similar rounding
off for a person who has missed 33% in one of the
papers just by a whisker. To him and to such a
person who could not get 50% in aggregate in the
written test, if this rule of rounding off is offered
then they would also get qualified. In that event,
there would be no meaning of having a rule
wherein it is provided that a person must at least
have the minimum marks as provided for
thereunder. Somewhere a line has to be drawn and
that line has to be strictly observed which is like
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a Lakshman Rekha and no variation of the same is
possible unless it is so provided under the Rules
itself. Both the Selection Committee as also the
appointing authority are bound to act within the
parameters of the Rules which are statutory in
nature and any violation or any relaxation thereof
whether by way of giving grace marks or rounding
off would be acting beyond the parameters
prescribed which would be illegal.
67. Having dealt with the arguments of the petitioner, I also find
that the petitioners have approached this Court challenging the criteria after
having unsuccessfully participated in the selection process. The Hon’ble
Supreme Court has held in a plethora of judgments that a selection criteria
cannot be challenged after an unsuccessful participation without any protest.
The judgments cited by the respondents lay down the position in law.
Reliance can also be placed on the judgment in the matter of “Tajvir Singh
Sodhi and Others versus State of Jammu & Kashmir and others” reported
as 2023 (17) SCC 147. Hon’ble Supreme Court upon examining a series of
judgments concerning the doctrines of waiver and estoppel, declined to
entertain the challenge, stating that it was not maintainable due to the
participation in the selection process. The relevant extract thereof reads
thus:-
39. It is therefore trite that candidates, having
taken part in the selection process without any
demur or protest, cannot challenge the same after
having been declared unsuccessful. The candidates
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cannot approbate and reprobate at the same time.
In other words, simply because the result of the
selection process is not palatable to a candidate,
he cannot allege that the process of interview was
unfair or that there was some lacuna in the
process. Therefore, we find that the writ petitioners
in these cases, could not have questioned before a
court of law, the rationale behind recasting the
selection criteria, as they willingly took part in the
selection process even after the criteria had been
so recast. Their candidature was not withdrawn in
light of the amended criteria. A challenge was
thrown against the same only after they had been
declared unsuccessful in the selection process, at
which stage, the challenge ought not to have been
entertained in light of the principle of waiver and
acquiescence.
40. This Court in Sadananda Halo [Sadananda
Halo v. Momtaz Ali Sheikh, (2008) 4 SCC 619] has
noted that the only exception to the rule of waiver
is the existence of mala fides on the part of the
Selection Board. In the present case, we are unable
to find any mala fides or arbitrariness in the
selection process and therefore the said exception
cannot be invoked.
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68. It is also significant to hold herein that existence of vacancies
alone is no basis to relax the minimum qualifying criteria. No one can claim
that the qualifying criteria ought to be given a go-by merely to accommodate
people who do not possess/fulfill the minimum yardstick. Public
appointment has to be made from amongst those who attain a minimum
level of merit and such necessity should not be diluted by assuming that no
harm would be caused to the standards of public duty owed by filling up
vacant posts even with people who are severely lacking in minimum merit.
The State owes a public duty to provide a minimum standard in public
appointment and larger public interest cannot be compromised for the well
being of few.
69. Consequently, the writ petitions are wanting in merit and hence
dismissed.
APRIL 22, 2025 (VINOD S. BHARDWAJ)
Vishal Sharma JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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