{"id":42240,"date":"2011-07-05T00:00:00","date_gmt":"2011-07-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/barot-vijaykumar-balakrishna-vs-modh-vinaykumar-dasrathlal-ors-on-5-july-2011"},"modified":"2016-03-08T13:50:55","modified_gmt":"2016-03-08T08:20:55","slug":"barot-vijaykumar-balakrishna-vs-modh-vinaykumar-dasrathlal-ors-on-5-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/barot-vijaykumar-balakrishna-vs-modh-vinaykumar-dasrathlal-ors-on-5-july-2011","title":{"rendered":"Barot Vijaykumar Balakrishna & … vs Modh Vinaykumar Dasrathlal & Ors on 5 July, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Barot Vijaykumar Balakrishna & … vs Modh Vinaykumar Dasrathlal & Ors on 5 July, 2011<\/div>\n
Author: A Alam<\/div>\n
Bench: Aftab Alam, R.M. Lodha<\/div>\n
                                                                                     REPORTABL\n                                                                                             E\n\n                     IN THE SUPREME COURT OF INDIA\n\n                       CIVIL APPELLATE JURISDICTION\n\n\n                   CIVIL APPEAL NOS. 4959-4962 OF 2011\n\n                [Arising out of SLP (C) Nos. 5177-5180 of 2010]\n\n\n\n\nBarot Vijaykumar Balakrishna & Ors.                                        ... Appellants\n\n\n                                           Versus\n\n\nModh Vinaykumar Dasrathlal & Ors.                                         ... Respondents\n\n\n\n\n\n                                          WITH\n\n\n\n\n                        CIVIL APPEAL NO. 4963 OF 2011\n\n                   [Arising out of SLP (C) Nos. 3584 OF 2010]\n\n\nGujarat Public Service Commission & Anr.                                   ... Appellants\n\n\n                                           Versus\n\nModh Vinaykumar Dasarathlal & Ors.                                           ... Respondents\n\n        \n\n                                    J U D G M E N T\n<\/pre>\n
AFTAB ALAM, J.\n<\/p>\n<\/p>\n
1.     Leave granted.\n<\/p>\n<\/p>\n
2.     These   appeals   arise   from   a   batch   of   writ   petitions   filed   before   the <\/p>\n
Gujarat High Court questioning the validity of the appointments of Assistant <\/p>\n
                                               2<\/span><\/p>\n
Public Prosecutor (Class-II) made from the select list prepared on the basis <\/p>\n
of   the   written   examination   and   viva   voce   and   personality   test   held   by   the <\/p>\n
Gujarat Public Service Commission. The challenge was based on the ground <\/p>\n
that the minimum qualifying mark, separately fixed for the viva voce, was <\/p>\n
introduced just two or three days before the commencement of the oral tests <\/p>\n
though it was not stipulated in the advertisement issued by the Commission <\/p>\n
for filling up the posts. According to the writ petitioners (respondents before <\/p>\n
this  Court),  the  introduction   of  the minimum  qualifying  mark   for the  viva <\/p>\n
voce,   after   the   commencement   of   the   selection   process   was,   illegal   and <\/p>\n
actuated by bias on the part of the Commission. It led to a number of highly <\/p>\n
anomalous   results   and   completely   vitiated   the   selections   and   the <\/p>\n
appointments made on that basis.\n<\/p>\n<\/p>\n
3.        A   learned   single   judge   of   the   High   Court   did   not   accept   the   writ <\/p>\n
petitioners’ contention and dismissed all the writ petitions by judgment and <\/p>\n
order dated August 17, 2009, passed in Special Civil Application No.7699 of <\/p>\n
2009 (and other analogous cases).\n<\/p>\n<\/p>\n
4.      Against   the   judgment   of   the   single   judge,   the   writ   petitioners   filed <\/p>\n
intra-court   appeals   and   a   division   bench   of   the   High   Court   allowed   the <\/p>\n
appeals and set aside the judgment of the single judge. It held that the action <\/p>\n
of the Commission in introducing the minimum qualifying mark for the viva <\/p>\n
                                                 3<\/span><\/p>\n
voce, in the middle of the selection process, was bad and “the Commission <\/p>\n
appears to have guided by legal malafide (sic)”. It, accordingly, quashed the <\/p>\n
select list and the appointments made on its basis and directed that a fresh <\/p>\n
list   be   drawn   up   on   the   basis   of   the   aggregate   of   marks   obtained   by   the <\/p>\n
candidates in the written test and the viva voce regardless of the minimum <\/p>\n
qualifying mark prescribed by the Commission for the viva voce. It directed <\/p>\n
the concerned authorities to complete the process within 2 months from the <\/p>\n
date   of  the   judgment  and   till   then   permitted   the   appointees   to   continue   to <\/p>\n
serve in their respective positions.\n<\/p>\n<\/p>\n
5.      Against the judgment of the division bench, the appeals are filed (i) by <\/p>\n
the   candidates   (102   in   number)   who   were   appointed   as   Assistant   Public <\/p>\n
Prosecutors on the basis of the impugned selection made by the Commission <\/p>\n
(and   who   were   not   parties   in   the   writ   petitions,   or   the   intra   court   appeals <\/p>\n
before the court) and (ii) by the Gujarat Public Service Commission.<\/p>\n
6.      Before   proceeding   to   examine   the   facts   of   the   case   and   the   rival <\/p>\n
contentions of the parties, it may be stated that on behalf of the respondents, <\/p>\n
it was accepted that the direction by the division bench of the High Court to <\/p>\n
draw   up   the   merit   list   ignoring   the   minimum   qualifying   mark   separately <\/p>\n
fixed for the viva voce may not be sustainable as that would be contrary to <\/p>\n
the statutory rules governing the selection and appointment. The only course <\/p>\n
                                                4<\/span><\/p>\n
left open, therefore, was to scrap the entire selection process and start from <\/p>\n
the beginning all over again.\n<\/p>\n<\/p>\n
7.      Coming   to   the   facts   of   the   case,   it   is   interesting   to   note   how   the <\/p>\n
process of filling up the posts of Assistant Public Prosecutor in such large <\/p>\n
numbers was put into motion. From a limitation petition, for condoning the <\/p>\n
inordinate  delay  of 1695 days  in filing  a State  criminal appeal,  it came  to <\/p>\n
light that there was acute shortage of Assistant Public Prosecutors and as a <\/p>\n
result, the functioning of the subordinate criminal courts in the State badly <\/p>\n
suffered. The High Court took up the matter and on its initiative, the State <\/p>\n
Government sanctioned 180 new posts of Assistant Public Prosecutors. After <\/p>\n
due   consultation   with   the   Gujarat   Public   Service   Commission   and   the <\/p>\n
concerned authorities of the State Government, the Advocate General of the <\/p>\n
State,   assured   the   High   Court   that   all   the   newly   sanctioned   posts   and   the <\/p>\n
vacancies   existing  in  the  already   sanctioned   cadre  (242  in  total)   would  be <\/p>\n
filled up in a time bound manner on the basis of rules especially framed for <\/p>\n
the purpose as a one time measure. The statements  made by the Advocate <\/p>\n
General before the High Court are recorded in the order dated October 08, <\/p>\n
2008,   passed   by   a   division   bench   of   the   High   Court   in   Criminal <\/p>\n
Miscellaneous Application No.13937 of 2007 in Criminal Appeal No.487 of <\/p>\n
2006. From the order of the High Court it appears that the Advocate General <\/p>\n
                                                5<\/span><\/p>\n
stated before the court that selection would be made on the basis of a written <\/p>\n
test   followed  by  oral  interviews  and   minimum  qualifying   marks  would  be <\/p>\n
fixed   for   the   tests.   The   relevant   passage   in   the   High   Court   order   is   as <\/p>\n
follows:\n<\/p>\n<\/p>\n
        “….   Shri   Trivedi,   learned   Advocate   General,   in   consultation <\/p>\n
        with   the   Secretary,   GPSC,   has   further   submitted   that <\/p>\n
        approximately   three   times   of   number   of   posts   to   be   filled   in, <\/p>\n
        starting   from   top   to   bottom,   the   applicants   will   be   called   for <\/p>\n
        Oral  Interviews. However, minimum  qualifying  marks  will  be <\/p>\n
        prescribed   and   the   aforesaid   will   also   be   reflected   and\/or <\/p>\n
        notified in the Advertisement…..”<\/p>\n
\n<\/blockquote>\n
8.      The  High  Court passed  the  order   incorporating  the  statements   made <\/p>\n
by   the   Advocate   General   and   directed   the   concerned   authorities   to   make <\/p>\n
appointments   on   all   the   available   posts   of   Assistant   Public   Prosecutor <\/p>\n
following the time schedule given in the order.\n<\/p>\n<\/p>\n
9.      In furtherance of the Advocate General’s assurance given to the court <\/p>\n
and   in   compliance   with   the   court’s   direction   on   that   basis,   a   set   of   rules <\/p>\n
called the Assistant Public Prosecutor, Gujarat General State Service Class II <\/p>\n
Recruitment (Examination) Rules, 2008 (for short “the Recruitment Rules”) <\/p>\n
were framed by the State Government under the proviso to Article 309 of the <\/p>\n
Constitution   of   India   and   published   in   the   Gujarat   Government   Gazette, <\/p>\n
Extraordinary,   dated,   August   6,   2008.   Rule   12   of   the   Recruitment   Rules <\/p>\n
dealing with the nature of examination provided as under:<\/p>\n
                                              6<\/span><\/p>\n
        “Nature of Examination  <\/p>\n
        12 (1) The   examination   shall   be   in   two   parts   as   shown   in <\/p>\n
        Appendix. Part I shall be written examination and Part II shall <\/p>\n
        be viva-voce and Personality Test.\n<\/p><\/blockquote>\n
        (2)     The   Commission   shall   fix   the   qualifying   marks   to   be <\/p>\n
        obtained   by   a   candidate   in   Part-I   of   the   examination   in <\/p>\n
        Appendix   and   shall   call   only   those   candidates   who   fulfil <\/p>\n
        qualifying standard for Viva-voce and Personality Test.<\/p>\n
        Provided   that   candidates   belongs   to   the   Scheduled   Castes, <\/p>\n
        Scheduled   Tribes   or   Socially   and   Educationally   Backward <\/p>\n
        Classes including Nomadic Tribes and Denotified Tribes, may <\/p>\n
        be  summoned   for  viva-voce  and  Personality  Test  by  applying <\/p>\n
        relaxed standard in Part-I of the examination if the Commission <\/p>\n
        is   of   the   opinion   that   sufficient   number   of   candidates   from <\/p>\n
        those communities are not likely to be called for viva-voce and <\/p>\n
        personality   test   on   the   basis   of   the   qualifying   standard   for <\/p>\n
        general   category  in  order   to  fill  up the  vacancies   reserved  for <\/p>\n
        such categories.\n<\/p><\/blockquote>\n
        (3)  The   commission   shall   fix   the   qualifying   marks   to   be <\/p>\n
        obtained   by   a   candidate   in   the   viva-voce   and   personality <\/p>\n
        test.\n<\/p><\/blockquote>\n
        (4) The candidate shall be required to attend the written part of <\/p>\n
        the examination  and viva-voce and personality test at his own <\/p>\n
        expense;\n<\/p><\/blockquote>\n
        (5)   If   the   candidate,   who   is   qualified   for   the   viva-voce   and <\/p>\n
        personality   test,   fails   to   attend   the   viva-voce   and   personality <\/p>\n
        test, shall not be eligible for selection.”<\/p>\n<\/blockquote>\n
                                                                   (emphasis added)<\/p>\n<\/blockquote>\n
10.     Rule  14 dealt with the result of the examination  and in sub-rule  (1) <\/p>\n
provided as follows:\n<\/p><\/blockquote>\n
<\/blockquote>\n
        “Result of Examination <\/p>\n
        14(1)   After   two   stage   of   the   examination   are   over,   the <\/p>\n
        commission shall prepare the result arranging the marks of the <\/p>\n
        candidates seriatim according to merit taking into consideration <\/p>\n
        the   total   marks   obtained   by   the   candidates  as   per   the <\/p>\n
        qualifying standards fixed for the written examination and <\/p>\n
                                                     7<\/span><\/p>\n
         viva-voce   and   personality   test  and   shall   declare   a   list   of <\/p>\n
         qualified candidates accordingly.”<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
                                                                                     (emphasis added)<\/p>\n
At  the end  of the  Recruitment  Rules   there  was an  Appendix  in two  parts. <\/p>\n<\/blockquote>\n
Part I contained the details concerning the written examination which would <\/p>\n
consist of five papers with an aggregate of 600 marks; part II provided that <\/p>\n
there would be a viva voce and personality test of 75 marks. <\/p>\n
11.      After   the   Recruitment   Rules   were   framed   and   notified,   the <\/p>\n
Commission   on   October   17,   2008   issued   an   advertisement   inviting <\/p>\n
applications for filling up 242 posts of Assistant Public Prosecutor (Class II). <\/p>\n
Of the 242 posts available, 122 were to be filled up on open merits and the <\/p>\n
remaining   was   reserved   for   the   different   reserved   categories.   Under   the <\/p>\n
marginal   heading,   “Particulars   of   Examination”,   it   was   stated   that   the <\/p>\n
examination would consist of two parts, i.e., written (objective test) and oral <\/p>\n
interview.  The  question paper of written  examination (Part  I) would be of <\/p>\n
300 marks. In connection with the second part of the examination relating to <\/p>\n
the oral interview it was stated as follows:\n<\/p>\n<\/p>\n
                        “PART- II     Oral Interview- 30 Marks <\/p>\n
                  The candidate obtains minimum 105 marks in the written <\/p>\n
         examination   i.e.   as   decided   by   the   Commission,   and   the <\/p>\n
         candidate   who   fulfils   the   educations   qualifications,   age, <\/p>\n
         experience,   etc.,   as   mentioned   in   the   advertisement   shall   be <\/p>\n
         called for the oral interview in exact numbers and there shall be <\/p>\n
                                               8<\/span><\/p>\n
        30   marks   for   the   oral   interview.   The   final   result   of   this <\/p>\n
        examination shall be published as per the recruitment rules. <\/p>\n
                The   examination   is   of   objective   aptitude   type,   the <\/p>\n
        provision of re-checking is not adopted. The final result of the <\/p>\n
        examination shall be furnished on the basis of the total marks <\/p>\n
        obtained in written as well as oral examination\/interview….<\/p>\n
12.     Two things are to be seen from the advertisement. One, though in the <\/p>\n
Recruitment Rules, 600 marks were allotted for the written examination and <\/p>\n
75 for the viva voce, in the advertisement the written examination was given <\/p>\n
300 and viva voce 30 marks. The second, though the minimum qualifying <\/p>\n
mark of 105 out of 300 was fixed for the written examination, no qualifying <\/p>\n
mark was fixed separately for the viva voce as required by rule 12 (3) of the <\/p>\n
Recruitment Rules. Nevertheless, there was a broad and general stipulation <\/p>\n
that,   “the   final   result   of   this   examination   shall   be   published   as   per   the <\/p>\n
recruitment rules”.\n<\/p>\n<\/p>\n
13.     The first discrepancy in regard to the allotment of marks to the written <\/p>\n
and   oral   tests   respectively,   though   not   quite   vital,   was   rectified   by   the <\/p>\n
notification dated October 24, 2008, issued by the State Government, under <\/p>\n
the proviso to Article 309 of the Constitution. By this notification, rule 19 <\/p>\n
was added at the end of the Recruitment Rules which reads as under:<\/p>\n
        “19.   Notwithstanding   anything   contained   in   these   rules,   the <\/p>\n
        competitive examination,  held by the Commission pursuant to <\/p>\n
        the   advertisement   issued   during   the   year   2008   for   the <\/p>\n
        recruitment to the post specified in rule 3, shall be the multiple <\/p>\n
                                                     9<\/span><\/p>\n
         choice objective type written examination for 300 marks from <\/p>\n
         the subjects mentioned in Papers I, II, III, IV and V in Part I of <\/p>\n
         the Appendix,<\/p>\n
         Provided that <\/p>\n<\/blockquote>\n
         (i)      For papers I and II of the Gujarati and English in Part I of <\/p>\n
                  the   Appendix   respectively   except   grammar,   all   other <\/p>\n
                  topics be deemed as excluded.\n<\/p><\/blockquote>\n
         (ii)     In Part II Viva-voce and Personality Test, the maximum <\/p>\n
                  of 75 marks, shall be read as 30 marks and <\/p>\n<\/blockquote>\n
         (iii)    The   provisions   of   rules   12,13,14   and   16   shall   apply <\/p>\n
                  mutatis mutandis to such competitive examination”    <\/p>\n<\/blockquote>\n
                                                                                   (emphasis added)<\/p>\n<\/blockquote>\n
14.      The written test was held by the Commission on January 11, 2009 and <\/p>\n
its result was published on March 20, 2009 by giving out the roll numbers <\/p>\n
(and   not   the   names)   of   the   qualifying   candidates.   Approximately   5,550 <\/p>\n
candidates sat for the written examination out of which 790 candidates were <\/p>\n
short-listed for being called for the oral interview. After the publication of <\/p>\n
the result of the written test the marks obtained by the short-listed candidates <\/p>\n
were kept in a sealed cover.\n<\/p><\/blockquote>\n
<\/blockquote>\n
15.      At this stage, while preparations were underway for holding the viva <\/p>\n
voce of the short-listed candidates, in the meeting held on April 22, 2009, it <\/p>\n
was   decided   that   in   terms   of   rule   12(3)   of   the   Recruitment   Rules,   the <\/p>\n
Commission was required to decide the minimum qualifying marks for the <\/p>\n
viva voce. Accordingly, on April 23, 2009, the Secretary to the Commission <\/p>\n
submitted   the   proposal   together   with   a   copy   of  the   Rules   for   order   of   the <\/p>\n
Commission and on the same day the Commission took the decision fixing <\/p>\n
                                                      10<\/span><\/p>\n
10   out   of   30   as   the   minimum   qualifying   mark   for   the   viva   voce.   The <\/p>\n
proceedings of the Commission dated April 23, 2009 read as follows: <\/p>\n
                “The   Commission   has   taken   following   decision   after <\/p>\n
       discussion.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                The   Commission   shall   decide   qualifying   marks   to   be <\/p>\n
       obtained   by   the   candidate   in   interview   under   rule   12(3)   of <\/p>\n
       Recruitment (Examination)  Rules  (Page  No.5\/C) for this post. <\/p>\n
       Accordingly, the Commission is supposed to decide minimum <\/p>\n
       qualifying   marks   for   considering   the   candidate   successful,   in <\/p>\n
       interview.   Hence,   after   careful   consideration   the   Commission <\/p>\n
       decides   that   to   get   out   of   the   maximum   30   marks   of   the <\/p>\n
       interview, 10 marks as minimum qualifying marks.<\/p>\n<\/blockquote>\n
                The intimation of this decision may be given in time, to <\/p>\n
       every   candidate   before   they   appear   in   interview.     For   this <\/p>\n
       purpose the Commission gives its approval for procedure to be <\/p>\n
       followed   as   per   suggestion   made   in   paragraph   No.3   shown <\/p>\n
       against-   on   previous   page.     Further,   this   decision   may   be <\/p>\n
       displayed   on   notice   board   in   such   a   proper   way   that   all   the <\/p>\n
       concerned   persons   may   get   intimated.  It   may   please   be   noted <\/p>\n
       that it may get published tomorrow.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                Sd\/- Member                                      Sd\/- Chairman\n\n                [Shree Variya]                                   (Shree Bhavsar]\n\n                     23.4.09                                             23.4.09\n\n\n                                                                                      Sd\/- Secretary\n\n                                                                                           23.4.09\n\n\n\n\n                                                                                      J.S.\/D.S.\n\n                                                                           Sd\/- (Jt.Secretary)\n\n                                                                                      24.4.09 \n\n\n<\/pre>\n
                The   details   to   be   displayed   on   Notice   board   as   well   as <\/p>\n
       taken   in   to   register   in   consonance   with   the   above   decision   is <\/p>\n
       submitted for approval.\n<\/p><\/blockquote>\n
\n                                               11<\/span><\/p>\n<\/blockquote>\n
          1.    Following details may be displayed on notice board.<\/p>\n<\/blockquote>\n
                               As per rule 12(3), the Commission has decided the <\/p>\n
        minimum   qualifying   10   marks   out   of   30,   for   the   candidate <\/p>\n
        appearing   in   interview   (Viva-Voce)   of   Assistant   Public <\/p>\n
        Prosecutor Class-II.   The candidate getting less marks than the <\/p>\n
        this   may   not   be   eligible   for   selection.     Which   may   be   please <\/p>\n
        noted.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                  Make a note in the register as below, in which signatures <\/p>\n
        of the candidates are being taken at the time of interview.”<\/p>\n<\/blockquote>\n
16.      Here it needs to be clarified that normally the Gujarat Public Service <\/p>\n
Commission consists of a Chairperson and four members but at that time the <\/p>\n
positions of three members were vacant and only a Chairman and a member <\/p>\n
comprised the Commission. Hence, the proceedings are shown to have been <\/p>\n
signed by the Chairman and one member.\n<\/p>\n<\/p>\n
17.     In accordance with the Commission’s direction, the decision fixing 10 <\/p>\n
out of 30 marks as the minimum qualifying mark for the viva voce was put <\/p>\n
up on the notice board. Further, each candidate was individually intimated <\/p>\n
and was made to sign a declaration\/consent form before going for the oral <\/p>\n
test.   The   consent   form   bore   the   following   declaration   under   which   the <\/p>\n
candidates were required to put their signatures:\n<\/p>\n<\/p>\n
                  “Under   recruitment   rules   12(3)   the   commission   has <\/p>\n
        prescribed 10 qualifying marks to be obtained by candidates out <\/p>\n
        of 30 in viva-voce test for appointment to the post of Assistant <\/p>\n
        Public   Prosecutor   (Class   -II)   and  it   is   to   be   noted   that   the <\/p>\n
        candidates   who   will   secure   less   than   10   marks   will   not   be <\/p>\n
                                                    12<\/span><\/p>\n
          eligible   for   recruitment   to   the   post   of   Assistant   Public <\/p>\n
          Prosecutor.”\n<\/p><\/blockquote>\n
                                                                                 (emphasis added)<\/p>\n<\/blockquote>\n
18.       The forms signed by each of the candidates are on record.<\/p>\n<\/blockquote>\n
19.       The   viva   voce   of   all   the   790   short   listed   candidates   was   held   from <\/p>\n
April 27, 2009 to July 9, 2009. On July 15, 2009, marks of the written test of <\/p>\n
the candidates  who were called for interview were taken out of the sealed <\/p>\n
cover and on July 16, the Commission declared the final result as per Rule <\/p>\n
14(1).\n<\/p>\n<\/p>\n
20.       In   the   facts   as   stated   above,   we   are   completely   unable   to   see   any <\/p>\n
illegality in the selection process much less any bias or malice of any kind. <\/p>\n
But on behalf of the writ petitioners-respondents, it is contended that it is a <\/p>\n
clear   case   of   bias.   It   is   alleged   that   in   order   to   bring   in   its   favoured <\/p>\n
candidates   the   Commission   found   it   necessary   to   exclude   a   sufficient <\/p>\n
number of meritorious candidates by any ruse and the minimum qualifying <\/p>\n
mark for viva voce was introduced at the last minute only for that intent and <\/p>\n
purpose. The respondents  pointed out that the application  of the minimum <\/p>\n
qualifying mark separately for the viva voce excluded some candidates who <\/p>\n
would have been selected only on the strength of their marks in the written <\/p>\n
test even though they were given nil mark in the viva voce. The respondents <\/p>\n
cited   several   kinds   of   figures   before   the   High   Court   to   high   light   the <\/p>\n
                                                13<\/span><\/p>\n
“anomalies”   resulting   from   the   introduction   of   the   minimum   qualifying <\/p>\n
mark for the viva voce. It was pointed out that 81 out of the 203 selected <\/p>\n
candidates had got the minimum qualifying mark in the viva voce, i.e., 10 <\/p>\n
out of the total of 30; 190 candidates out of 790 called for interview got just <\/p>\n
8 or 9 marks in the viva voce and were, thus, excluded from the final select <\/p>\n
list;   503   candidates   out   of   the   790   called   for   interview   got   less   than   the <\/p>\n
qualifying  mark in the viva  voce. One or two more examples  of a similar <\/p>\n
nature were also cited by the respondents. The Division Bench of the High <\/p>\n
Court  appears   to  have  attached   considerable  importance   to  these   so  called <\/p>\n
anomalies and its judgment seems to have been influenced by these results.<\/p>\n
21.     We are unable to accept or even to follow the allegation based on the <\/p>\n
figures as cited above. It is necessary to bear in mind that no objection can <\/p>\n
be taken to the fixing of the cut off mark separately for the viva voce as that <\/p>\n
is the mandate of the statutory rules governing the recruitment. What alone <\/p>\n
can be objected to is the omission to specify the cut off mark for viva voce <\/p>\n
in the advertisement and fixing it later on. But we fail to see any connection <\/p>\n
between the “anomalies” and the fact that the cut off mark for viva voce was <\/p>\n
fixed at a later stage, though before the commencement of the interviews and <\/p>\n
with due intimation to all the candidates.\n<\/p>\n
\n                                                  14<\/span><\/p>\n
22.     Further,   as   noted   above   the   marks   obtained   by   the   short   listed <\/p>\n
candidates   in   the   written   test   were   kept   in   a   sealed   cover   and   those   were <\/p>\n
taken out only after the oral interview of all the candidates was over. At the <\/p>\n
time  a  candidate   appeared   for   the  interview   the  members   of  the   interview <\/p>\n
board had no means  to know the mark  obtained by  him\/her in the written <\/p>\n
test.   In   such   a   situation   we   don’t   see   how   it   could   be   possible   for   the <\/p>\n
interview board to purposefully exclude a candidate by giving less than the <\/p>\n
minimum qualifying mark for the viva voce even though he\/she might have <\/p>\n
been selected on the basis of the mark obtained in the written test alone.<\/p>\n
23.     When   playing   around   with   numbers   one   is   quite   likely   to   come   up <\/p>\n
with some figures that might appear unusual and unexpected but that alone <\/p>\n
will   not   make   out   a   case   of   bias   or   legal   malafide   (See   the   decision   by   a <\/p>\n
bench   of   four   judges   of   this   Court   in  Ashok   Kumar   Yadav  v.   State   of  <\/p>\n
Haryana, (1985) 4 SCC 417, paragraph 21). In the facts of the case as noted <\/p>\n
above   we   are   satisfied   that   the   examples   cited   by   the   respondents   do   not <\/p>\n
show that there was any arbitrariness or play of bias in giving marks to the <\/p>\n
candidates   in   the   viva   voce   or   that   there   was   any   flaw   in   the   selection <\/p>\n
process making it liable to be struck down.\n<\/p>\n<\/p>\n
24.     Mr.   Viswanathan,   senior   advocate,   appearing   for   the   respondents <\/p>\n
submitted that the Advocate General had undertaken before the High Court <\/p>\n
                                                 15<\/span><\/p>\n
that the qualifying marks for both the written test and the viva voce would <\/p>\n
be published in the advertisement. He further submitted that sub-rule (2) of <\/p>\n
rule 12 provided for fixing the minimum qualifying mark for the written test <\/p>\n
in the same way as sub-rule (3) provided for fixing the minimum qualifying <\/p>\n
mark for the viva voce. He argued that the provisions of sub-rules (2) and (3) <\/p>\n
of   rule   12   could   not   be   read   and   given   effect   to   differently   and   when   the <\/p>\n
minimum   qualifying   mark   for   the   written   test   was   specified   in   the <\/p>\n
advertisement   there   was   no   reason   for   not   indicating   the   minimum <\/p>\n
qualifying mark for the viva voce in the advertisement itself.<\/p>\n
25.     The   grievance   of   Mr.   Viswanathan   cannot   be   said   to   be   wholly <\/p>\n
without substance.  It is true that the better and the more proper way to give <\/p>\n
effect to the provision of rule 12 (3) of the Recruitment Rules was to specify <\/p>\n
the   minimum   qualifying   mark   for   the   viva   voce   also   in   the   advertisement <\/p>\n
itself.     But   that   was   not   done.     The   question   is   what   would   be   the <\/p>\n
consequence of the omission and was it open to the Commission to rectify <\/p>\n
the error by fixing the minimum qualifying mark for the viva voce later on <\/p>\n
and giving intimation of its decision to each of the candidates appearing for <\/p>\n
the oral interview before the beginning of the test.\n<\/p>\n<\/p>\n
26.     The Division Bench of the High Court has held that the introduction <\/p>\n
of the minimum qualifying mark for the viva voce at the later stage in the <\/p>\n
                                            16<\/span><\/p>\n
selection process was not permissible and it completely vitiated the selection <\/p>\n
process.     Mr.   Viswanathan   strongly   supports   the   view   taken   by   the   High <\/p>\n
Court.   In support  of  its  view, the  Division  Bench  of the  High Court,  has <\/p>\n
placed reliance on two decisions of this Court, one in K. Manjusree v. State  <\/p>\n
of Andhra Pradesh and another, (2008) 3 SCC 512 and the other  Hemani  <\/p>\n
Malhotra  v. High Court of Delhi,<\/a> (2008) 7 SCC 11.   Mr. Viswanathan also <\/p>\n
cited   before   us   the   decision   in  K.   Manjusree  and   invited   our   attention <\/p>\n
particularly to the following passage in paragraph 33 of the judgment:<\/p>\n
        “33…..   Where   the   rules   do   not   prescribe   any   procedure,   the <\/p>\n
        Selection   Committee   may  also   prescribe   the   minimum   marks, <\/p>\n
        as   stated   above.   But   if   the   Selection   Committee   wants   to <\/p>\n
        prescribe minimum marks for interview, it should do so before <\/p>\n
        the   commencement   of   selection   process.     If   the   Selection <\/p>\n
        Committee   prescribed   minimum   marks   only   for   the   written <\/p>\n
        examination, before the commencement of selection process, it <\/p>\n
        cannot either during the selection process or after the selection <\/p>\n
        process,   add   an   additional   requirement   that   the   candidates <\/p>\n
        should also secure minimum marks in the interview. What we <\/p>\n
        have found to be illegal is changing the criteria after completion <\/p>\n
        of the selection process, when the entire selection proceeded on <\/p>\n
        the   basis   that   there   will   be   no   minimum   marks   for   the <\/p>\n
        interview.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
27.     In   our   view,   both   the   decisions   relied   upon   in   support   of   the <\/p>\n
respondents’ case are completely distinguishable and have no application to <\/p>\n
the facts of this case. K. Manjusree was a case of selection and appointment <\/p>\n
to the posts of District & Sessions Judge (Grade II) in the Andhra Pradesh <\/p>\n
Higher   Judicial   Service.     The   selection   and   appointment   to   the   post   of <\/p>\n
                                               17<\/span><\/p>\n
District & Sessions Judge was governed by the resolutions of the High Court <\/p>\n
and the resolution dated November 30, 2004 decided the method and manner <\/p>\n
of   selection.     It   resolved   to   conduct   the   written   examination   for   the <\/p>\n
candidates for 75 marks and oral examination for 25 marks.  It also resolved <\/p>\n
that   the   minimum   qualifying   marks   for   the   O.C.,   B.C.,   S.C.   and   S.T. <\/p>\n
candidates   would   be   as   prescribed   earlier.   Following   the   written <\/p>\n
examination,   the   qualified   candidates   were   called   for   interview   before   a <\/p>\n
committee of five judges. After the interview, the select committee of five <\/p>\n
judges prepared a merit list on the basis of the aggregate of marks obtained <\/p>\n
by each of the candidates in the written test and the oral interview.  At that <\/p>\n
stage, the select committee did not apply any cut off mark for the viva voce. <\/p>\n
The   list   prepared   by   the   select   committee   was   approved   by   the <\/p>\n
administrative   committee   and   it   finally   came   before   the   Full   Court   of   the <\/p>\n
High   Court.     The   Full   Court   decided   to   have   the   matter   reviewed   by   a <\/p>\n
committee of two judges constituted by the Chief Justice of the High Court. <\/p>\n
It   was   at   that   stage   that   the   committee   of   two   judges   decided   that   there <\/p>\n
should have been a minimum qualifying mark for the oral interview as well, <\/p>\n
in the same ratio as prescribed for the written test.  It, accordingly, decided <\/p>\n
that only those candidates who secured the minimum of 12.5 out of 25 (for <\/p>\n
the open category), 10 marks (for B.C. candidates), and 8.75 marks (for SC <\/p>\n
                                              18<\/span><\/p>\n
and   ST   candidates)   would   be   considered   as   having   succeeded   in   the <\/p>\n
interview. The decision of the committee of two judges was approved by the <\/p>\n
Full Court and consequently, the earlier list prepared by the select committee <\/p>\n
and   approved   by   the   administrative   committee   was   revised   and   the   final <\/p>\n
recommendation for appointment was made by the High Court on the basis <\/p>\n
of the revised merit list.   It was in those facts that this Court held that the <\/p>\n
introduction of the cut off mark for the viva voce after the oral interviews <\/p>\n
were over amounted to changing the rules of the game in mid-play and was <\/p>\n
not   permissible   in   law.     The   passage   from   paragraph   33   of   the   judgment <\/p>\n
relied upon by the respondents must be understood in the facts of the case.<\/p>\n
28.     The decision in  Hemani Malhotra  is equally inapplicable to the facts <\/p>\n
of the case. Hemani Malhotra was a case of selection and appointment to the <\/p>\n
vacant posts in the Delhi Higher Judicial Service and those appointments too <\/p>\n
were   governed   by   the   administrative   resolutions   of   the   High   Court.     For <\/p>\n
filling   up   the   posts,   the   Registrar   General   of   the   High   Court   issued   an <\/p>\n
advertisement   that   laid   down   that   the   minimum   qualifying   mark   in   the <\/p>\n
written   examination   would   be   55%   for   general   candidates   and   50%   for <\/p>\n
scheduled castes and scheduled tribes candidates.  In the advertisement there <\/p>\n
was no indication at all about any cut off mark for the oral interview.  After <\/p>\n
the written examination, no result was published giving out the names or roll <\/p>\n
                                                 19<\/span><\/p>\n
numbers   of   the   qualified   candidates   but   the   successful   candidates   were <\/p>\n
called to appear for the oral interview individually through letters. After the <\/p>\n
date fixed for oral interview was postponed three or four times the selection <\/p>\n
committee   of   the   High   Court   resolved   that   it   was   desirable   to   prescribe   a <\/p>\n
minimum mark for the viva voce and referred the matter to the Full Court. <\/p>\n
The Full Court accepted the suggestion  made  by the select committee  and <\/p>\n
resolved that for recruitment to the Delhi Higher Judicial Service from the <\/p>\n
Bar the minimum qualifying mark in the viva voce will be 55% for general <\/p>\n
candidates   and   50%   for   scheduled   castes   and   scheduled   tribes   candidates. <\/p>\n
After   the   decision,   interviews   were   held   but   significantly   the   candidates <\/p>\n
were   kept   in   dark   about   the   decision   fixing   the   cut   off   mark   for   the   viva <\/p>\n
voce.     The   High   Court   prepared   the   select   list   applying   the   cut   off   mark <\/p>\n
fixed for viva voce but the candidates who appeared for the oral interviews <\/p>\n
still did not know why they were not selected despite getting higher marks. <\/p>\n
It was only through applications made under the Right to Information Act <\/p>\n
that   some   of  the   unselected   candidates   were   able   to  gather   that   their   non-<\/p>\n
selection   was  on account  of their  failure  to  secure  the cut  off  mark  in the <\/p>\n
viva   voce   and   then   the   selection   was   challenged   before   the   Court.     It   is <\/p>\n
evident   that   the   facts   of   the   case   in   hand   are   entirely   different   and   the <\/p>\n
decision in Hemani Malhotra has no application to this case. <\/p>\n
                                               20<\/span><\/p>\n
29.     Mr.   Viswanathan   also   relied   upon   the   decision   of   this   Court   in <\/p>\n
Ramesh   Kumar  v.  High   Court   of   Delhi   and<\/a>   another,   (2010)   3   SCC   104. <\/p>\n
This   decision   also   has   no   relevance   to   the   facts   of   the   present   case.   In <\/p>\n
Ramesh Kumar, what this Court said is that for appointment to the judicial <\/p>\n
services,  in the absence of any contrary provision in the relevant rules <\/p>\n
Delhi High Court should not have fixed any minimum qualifying marks for <\/p>\n
the viva voce because this Court had accepted Justice Shetty Commission’s <\/p>\n
report   which   had   prescribed   not   to   have   any   cut   off   mark   for   interview. <\/p>\n
Actually   what   is   said   in   paragraph   15   of   the   judgment   in  Ramesh   Kumar <\/p>\n
demolishes the case of the respondents:\n<\/p>\n<\/p>\n
        “15.    Thus,   the   law   on   the   issue   can   be   summarised   to   the <\/p>\n
        effect that  in case the statutory rules prescribe a particular <\/p>\n
        mode   of   selection,   it   has   to   be   given   strict   adherence <\/p>\n
        accordingly.   In   case,   no   procedure   is   prescribed   by   the   rules <\/p>\n
        and   there   is   no   other   impediment   in   law,   the   competent <\/p>\n
        authority   while   laying   down   the   norms   for   selection   may <\/p>\n
        prescribe   for   the   tests   and   further   specify   the   minimum <\/p>\n
        benchmarks for written test as well as for viva voce.<\/p>\n<\/blockquote>\n
30.     Having, thus, made the legal position clear, the judgment in paragraph <\/p>\n
16 went on to say:\n<\/p>\n<\/p>\n
        “16.    In   the   instant   case,   the   Rules   do   not   provide   for   any <\/p>\n
        particular   procedure\/criteria   for   holding   the   tests   rather   it <\/p>\n
        enables the High Court to prescribe the criteria.   This Court in <\/p>\n
        All India Judges’ Assn. (3)  v.  Union of India,  [(2002) 4 SCC <\/p>\n
        247],  accepted   Justice   Shetty   Commission’s   Report   in   this <\/p>\n
        regard which had prescribed for not having minimum marks for  <\/p>\n
                                              21<\/span><\/p>\n
        interview.  The Court further explained that to give effect to the <\/p>\n
        said   judgment,   the   existing   statutory   rules   may   be   amended. <\/p>\n
        However, till the amendment is carried out, the vacancies shall <\/p>\n
        be filled as per the existing statutory rules. A similar view has <\/p>\n
        been   reiterated   by   this   Court   while   dealing   with   the <\/p>\n
        appointment   of   Judicial   Officers   in  Syed   T.A.   Naqshbandi  v. <\/p>\n
        State of J&K  [(2003) 9 SCC 592]  and  Malik Mazhar Sultan  <\/p>\n
        (3)  v.  U.P. Public Service Commission  [(2008) 17 SCC 703]. <\/p>\n
        We have also accepted the said settled legal proposition while <\/p>\n
        deciding the connected cases i.e.  Rakhi Ray  v.  High Court of  <\/p>\n
        Delhi<\/a> [(2010) 2 SCC 637] vide judgment and order of this date. <\/p>\n
        It has been clarified in  Rakhi Ray that where statutory rules do <\/p>\n
        not   deal   with   a   particular   subject\/issue,   so   far   as   the <\/p>\n
        appointment   of   the   Judicial   Officers   is   concerned,   directions <\/p>\n
        issued by this Court would have binding effect.” <\/p>\n<\/blockquote>\n
31.     Now coming back to the facts of the case in hand, though the rules <\/p>\n
framed under Article 309 of the Constitution governing the selection process <\/p>\n
mandated   that   there   would   be   minimum   qualifying   marks   each   for   the <\/p>\n
written test and the oral interview, the cut off mark for viva voce was not <\/p>\n
specified in the advertisement.  In view of the omission, there were only two <\/p>\n
courses open. One, to carry on with the selection process and to complete it <\/p>\n
without fixing any cut off mark for the viva voce and to prepare the select <\/p>\n
list on the basis of the aggregate of marks obtained by the candidates in the <\/p>\n
written test and the viva voce. That would have been clearly wrong and in <\/p>\n
violation of the statutory rule governing the selection. The other course was <\/p>\n
to fix the cut off mark for the viva voce and to notify the candidates called <\/p>\n
for   interview   about   it.     This   is   the   course   that   the   Commission   followed. <\/p>\n
                                               22<\/span><\/p>\n
This was in compliance with the rules and it did not cause any prejudice to <\/p>\n
any   candidate   either.   We,   thus,   see   no   illegality   at   all   in   the   selection <\/p>\n
process.\n<\/p>\n<\/p>\n
32.     In   light   of   the   discussions   made   above   we   find   that   the   Division <\/p>\n
Bench of the High Court took a wrong view of the matter and its judgment <\/p>\n
and order are quite unsustainable. We, accordingly, set aside the impugned <\/p>\n
judgment and dismiss all the writ petitions filed by the respondents before <\/p>\n
the Gujarat High Court.\n<\/p>\n<\/p>\n
33.     In the result, the appeals are allowed but with no order as to costs.<\/p>\n
                                                               …………………………………..J<\/p>\n
                                                                (AFTAB ALAM)<\/p>\n
                                                               …………………………………..J<\/p>\n
                                                                (R.M. LODHA)<\/p>\n
New Delhi,<\/p>\n
July 5, 2011.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Barot Vijaykumar Balakrishna & … vs Modh Vinaykumar Dasrathlal & Ors on 5 July, 2011 Author: A Alam Bench: Aftab Alam, R.M. Lodha REPORTABL E IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4959-4962 OF 2011 [Arising out of SLP (C) Nos. 5177-5180 of 2010] Barot Vijaykumar […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-42240","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBarot Vijaykumar Balakrishna & ... vs Modh Vinaykumar Dasrathlal & Ors on 5 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/barot-vijaykumar-balakrishna-vs-modh-vinaykumar-dasrathlal-ors-on-5-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Barot Vijaykumar Balakrishna & ... vs Modh Vinaykumar Dasrathlal & Ors on 5 July, 2011 - 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