K.Manjusree Etc vs State Of A.P & Anr

K.Manjusree ... Appellant

Vs.

State of A.P. & Anr. .... Respondents

With WP [C] Nos.51/2007 and 97/2007 & SLP [C] No.[CC Nos.7188-89/2007]

JUDGMENT

R.V. RAVEENDRAN, J.

Leave granted in the special leave petition by K.Manjusree. The

selection to ten posts of District & Session Judges (Grade-II) in the Andhra

Pradesh State Higher Judicial Service in pursuance of the advertisement

dated 28.5.2004 is the subject matter of this appeal by special leave and writ

petitions.

2

2. Selection and appointments to the post of District & Session Judges

(Grade II) are governed by the Andhra Pradesh State Higher Judicial

Service Rules 1958 (Rules for short). The said Rules provide that one-third

of the total number of permanent posts of District and Session Judges

(Grade II) should be filled by direct recruitment. It also prescribes the

qualifications for appointment, but does not prescribe any procedure for

selection. As the Rules only prescribe the qualifications for appointment but

did not lay down the selection procedure, the manner and method of

selection is decided by the High Court, for every selection, as and when the

vacancies are notified for selection.

3. The Government of Andhra Pradesh issued an advertisement dated

28.5.2004 inviting applications for appointment to the following ten posts

of District & Sessions Judges (Grade II) in the A.P. State Higher Judicial

Service by direct recruitment :

Open category : 4 (1 Woman) Backward Class - Group A : 1 (Woman) Backward Class - Group B : 1 (Woman) Scheduled Caste : 2 (1 Woman) Scheduled Tribe :1 3

The advertisement stated that a written examination followed by an

interview will be held for selection to the above posts. The last date for

receipt of applications was 15.6.2004. In all 1637 applications were

received. On scrutiny 1516 applicants were eligible to take the written

examination.

4. The Full Court of Andhra Pradesh High Court has authorized its

Chief Justice to constitute Committees for the convenience of

administration. The resolutions of the Full Court containing the guidelines

relating to the functioning of the High Court have been compiled in the

form of standing orders. SO 2.13 enumerates the matters to be dealt with by

the Full Court. SO 2.14 enumerates the matters to be dealt with by the

Administrative Committee. Recruitment of District Judges is a matter to be

dealt with by the Administrative committee under SO 2.14. The

decision/minutes of the Administrative committee in regard to recruitment

of District Judges are thereafter placed before the Full Court for its

consideration under SO 2.13.

5. The Administrative committee by its resolution dated 30.11.2004

decided the method and manner of selection. It resolved to conduct the 4

written examination for the candidates for 75 marks and oral examination

for 25 marks. It also resolved that the minimum qualifying marks for the

OC, BC, SC and ST candidates shall be as prescribed earlier. As per its

direction, the written examination was held on 30.1.2005 and 1026

candidates appeared for the examination. The results were declared on

24.2.2005 and 83 candidates were successful in the written examination.

Due to the pendency of some litigation, interviews could not be held

immediately. A committee of five Judges was constituted for interviewing

the candidates and interviews were held in March 2006. Thereafter, the

marks obtained by the 83 candidates in the written examination and in the

interview were aggregated and a consolidated merit list of the 83 candidates

wa prepared in the order of merit on the basis of the aggregate marks. It

contained (i) the registration number, (ii) the names of the candidates, (iii)

reservation category, (iv) marks secured in the written examination out of

100 marks, (v) marks secured in the interview out of 25 marks, and (vi) the

total marks secured in the written examination and interview out of 125.

Thereafter, five more merit lists in respect of categories BC-A, BC-B, BC-

D, SC and ST were prepared. On the basis of the said lists, the Interview

Committee finalized the following list of candidates to be recommended for 5

appointment as per merit and reservation, and submitted to the

Administrative committee with a report dated 3.4.2006 : 6

DISTRICT AND SESSIONS JUDGES GRADE-II EXAMINATION (LIST OF CANDIDATES TO BE RECOMMENDED FOR APPOINTMENT)

Sl. No. Regn. Name of the candidate Category Written Interview Total Number Exam. (out of 25) marks (out of (for

100) 125) 01 1859 Smt. Venkata OC 72 9.6 81.6 Jyothrimayee 02 1775 Smt. C.Sumalatha OC 61 19.4 80.4 03 1073 Smt.k.Manju Sree OC 68.5 10.6 79.1 04 1694 A.Hari Haranatha Sarma OC 64.5 14.4 78.9 05 1009 Smt. G.Anupama BC(A) 51 8.6 59.6 Chakravarthy 06 1590 Smt. V.B.Nirmala BC(B) 59.5 16.4 75.9 Geethamba 07 1059 M.Lakshman BC(D) 59 8.2 67.2 08 1176 BSV. Prakash Kumar SC 49 10 59 09 2336 Smt. Girija SC 48 8.4 56.4 M.Priyadarshani 10 1220 N.Tukaramji ST 36.5 11.4 47.9

6. The Administrative committee considered the report, the merit list

and list of recommended candidates proposed by the interview and by

resolution dated 4.4.2006 approved the selection of the said ten candidates

and directed the said `select list' be placed before the Full Court on 6.4.2006

for its consideration.

7. The Full Court considered the resolutions of the Administrative

committee dated 30.11.2004 and 4.4.2006 and the record of selection. The

Full Court impliedly approved the resolution dated 30.11.2004. But it did

not agree with the selection list prepared by the Interview committee and

approved by the Administrative committee by resolution dated 4.4.2006.

7 The Full Court authorized the Chief Justice to constitute a committee of

Judges for preparing a fresh list of candidates to be recommended for

appointment of District & Session Judges (Grade II). Accordingly, the Chief

Justice appointed a sub-committee of two Judges on 7.4.2006. The said sub-

committee was of the view that the candidates should be evaluated with

reference to written examination marks of 75 and interview marks of 25 as

per the resolution dated 30.11.2004, instead of being evaluated with

reference to written examination marks of 100 and interview of 25, thereby

varying the prescribed ratio between written examination marks and

interview marks from 3:1 to 4:1. Therefore, it scaled down the marks

obtained by the candidates in the written examination with reference to a

total of 100, in proportion to a maximum marks of 75. By adding the

interview marks of 25, the total marks obtained by the candidates with

reference to a total of 100 (as against 125) were recalculated. The sub-

committee was also of the view that apart from applying the minimum

marks for the written examination for determining the eligibility of the

candidates to appear in the interview the same cut off percentage should be

applied for interview marks, and those who fail to secure such minimum

marks in the interview should be considered as having failed. As the

minimum percentage for passing the written examination was 50% for open 8

category, 40% for backward classes and 35% for SC and ST, only those

candidates who secured the minimum of 12.5 marks (open category), 10

marks (BC candidates) and 8.75 marks (SC & ST candidates) were

considered as having succeeded in the interview. Consequently, only 31

candidates were found to have qualified both in the written examination and

interview and a revised merit list was prepared pruned down to 31

successful candidates. On that basis, nine candidates were recommended for

appointment as follows :

DISTRICT AND SESSIONS JUDGES GRADE -II EXAMINATION, 2005 (LIST OF CANDIDATES TO BE RECOMMENDED FOR APPOINTMENT)

Sl. Regd. Name of the Category Marks in Interview Total No. No. candidate Written (out of 25) Marks (out Exam (out of 100) of 75) 1 1775 Smt.C. Sumalatha OC 45.75 19.4 65.15 2 1117 Smt. G.Radharani OC 46.87 16 62.87 3 1694 A.Hari Haranadha OC 48.37 14.4 62.77 Sarma 4 1590 Smt. V.B.Nirmala OC (W) 44.62 16.4 61.02 Geethamba (BC.B) 5 1186 K.Sreenivas BC.D 38.25 12.6 50.85 6 1072 Smt.P. Manjula Devi BC.B(W) 33.75 13.2 46.95 7 1176 BSV. Prakash Kumar SC 36.75 10 46.75 8 1151 Smt. M.Renuka BC.A(W) 30 14 44 9 1220 N.Tukaramji ST 27.37 11.4 38.77

One vacancy relating to `Scheduled Caste (Women)' was left unfilled as there was no qualified candidate.

8. The said report and the selection list were considered by the Full

court on 28.4.2006 and it was resolved to accept the names of the aforesaid

nine candidates in the said list to the State Government for appointment.

9 The second list contained the names of 5 out of 10 candidates recommended

in the first list (Sl. Nos.2,4,6,8 and 10 in the first list were Sl. Nos.1,3,4,7

and 9 in the second list). Five candidates in the first list (Sl. Nos.1,3,5,7 and

9 in the first list) got eliminated as they failed to secure the minimum marks

in the interview and four fresh candidates entered the second list (Sl.

Nos.2,5,6 and 8 in the second list). No candidate was selected under the

category SC (Woman) as no candidate of that category secured the

minimum marks in the interview.

9. Two of the candidates whose names were found in the first list and

who got excluded in the second list namely K.Manjusri (Sl.No.3) and

M.Lakshman (Sl.No.7) filed W.P.Nos.10061/2006 and 10062/2006 in the

High Court praying for a declaration that the action of the High Court in

preparing the selection list by prescribing minimum qualifying marks for the

interview was arbitrary and illegal and seeking a direction to the High Court

to redraw the selection list without adopting minimum qualifying marks for

the interview. The said writ petitions were dismissed by the High Court by a

common judgment dated 30.10.2006.

1 0

Civil Appeal arising from SLP [C] No.18330/2006

10. This appeal is by K.Manjusri whose name was found in the first list.

She contended that the minimum marks for interview not having been

prescribed either under the rules or by the resolution dated 30.11.2004 by

the Administrative committee, the action of the Full Court altering the

norms for selection by introducing minimum marks for interview, after

completion of the selection process, would amount to changing the rules of

the game, not only after the game was started but after the game was played.

11. Several applications for impleadment filed by the selected/non-

selected candidates have been ordered to be heard along with the main

matter. IA No.2 was filed by A.Hariharanatha Sarma, N.Thukaramji,

V.B.Nirmala Geethamba and BSV Prakash Kumar whose names were found

in both the first and second lists. IA Nos.3 and 5 are filed by G.Anupama

Chakravarthy and P.Venkata Jyothirmai who were at Sl.Nos.5 and 1 in the

first list (whose names were omitted in the second list). IA No.4 is filed by

G.Radha Rani, K.Sreenivas and M.Renuka whose names are found in the

second list at Sl.Nos.2,,5,6 and 8. They were also heard. While the 1 1 applicants in IA Nos.2,3 and 5 have supported the contentions urged by the

appellant, the applicants in IA No.4 have contended to the contrary.

SLP [C] No.[CC Nos.s7188-89/2007]

12. One E.Thirumala Devi whose name is found neither in the first list

nor in the second list has filed this SLP. She was not a party in the writ

petition before the High Court and has filed this SLP with an application

seeking permission to file the SLP and for condoning the delay of 192 days

in filing the SLP. She has contended that applying the criterion of minimum

qualifying marks in the interview, without notifying the same to the

candidates was violative of principles of natural justice. She has contended

that the selection procedure was illegal and therefore the entire selection

process should be scrpped and High court should be directed to hold fresh

selections.

Writ Petition [C] No.51/2007

13. The petitioner Girija M.Priyadarsini, (whose name was in the first list

of selected candidates, under the category `SC- Woman') has contended that

minimum qualifying marks could not be applied for interviews. She further 1 2 contended that even if resolution dated 30.11.2004 of the Administrative

committee is construed as prescribing minimum marks for interview, such

minimum marks would be applicable only in regard to open category,

backward classes and scheduled Tribes, but not to Scheduled Castes. She

submits that the resolution dated 30.11.2004 merely adopts what was

prescribed earlier, that is what was resolved earlier on 24.7.2001 and

21.2.2002. She points out the said resolutions did not prescribe any

minimum marks in respect of Scheduled Caste candidates; and that

therefore, she was entitled to be selected, to the post reserved for

`Scheduled Caste (Woman).

Writ Petition [C] No.97/2007

14. The petitioner Kaki Shanti Kumar is a Scheduled Caste candidate. He

was not one of the selected candidates either in the first list or in the second

list. According to him, having regard to the policy of the State Government

contained in the notifications dated 9.1.2004 and 17.2.2005, if any post

earmarked for `Scheduled Caste-Woman' cannot be filled for want of

suitable candidate, such post should be filled by a Scheduled Caste-male

candidates, by transferring the post to SC (General). He claims that the post 1 3 left unfilled earmarked form `SC - Woman' should have been treated as `SC

- General' vacancy and he ought to have been selected for that post. 1 4

Questions for consideration

15. On the contentions urged, the following questions arise for

consideration :

(i) What was the procedure (method and manner of selection) prescribed by the Administrative committee for filling the posts advertised on 28.5.2004?

(ii) Whether the list prepared by the Interview Committee and approved by the Administrative committee suffered from any error, irregularity or illegality?

(iii) Whether the procedure adopted by the Full Court in preparing the fresh selection list by applying the requirement of minimum marks for interview also, is legal and valid ?

Re : Question (i)

16. The Rules did not prescribe any procedure for selection. When the

posts were advertised, the only criterion for selection that was mentioned

was that the selection will be by holding a written examination followed by

an interview. The manner of holding written examinations and interviews,

the marks for written examination and interview, whether the candidates

should secure any minimum marks in the written examination and/or

interview, were all yet to be decided.

1 5

17. As per the practice followed by the High Court (standing orders

referred to above) the entire process of recruitment of Distrit Judges was to

be dealt with by the Administrative Committee and the decisions of the

Administrative Committee were placed before the Full Court for its

consideration and approval. The Administrative Committee at its meeting

held on 30.11.2004 considered the method and manner of recruitment to be

adopted in regard to the said recruitment and took the following three

decisions : (i) that the written examination will be held on 30.1.2005

simultaneously at four centres; (ii) that the marks for the written

examination shall be 75 and for oral examination 25; and (iii) that the

"minimum qualifying marks for OC/BC/SC/ST shall be as prescribed

earlier". The first two decisions are self contained and clear. In regard to the

third decision, it becomes necessary to ascertain what was the minimum

qualifying marks for OC/BC/SC/ST which had been prescribed earlier.

There was no general prescription of guidelines or norms or criteria for

holding the written examination and interview marks therefore. The

procedure to be applied in regard to each recruitment was laid down

separately by the Administrative Committee as and when the recruitment

was done. When the Administrative Committee decided on 30.11.2004 that 1 6 the minimum qualifying marks for OC/BC/SC/ST shall be as prescribed

earlier it obviously referred to what was prescribed when the previous

recruitment was made in 2001-2002. The High Court has produced the

relevant minutes relating to such earlier recruitment. It is seen that the

Administrative committee had laid down the following method and manner

for the recruitment of six posts of District & Session Judges (Grade II) by its

resolution dated 24.7.2001 (approved by the Full court on 16.8.2001) :

"Considered and resolved that the mode of examination be by way of written test for 75 marks and oral interview for 25 marks and the minimum qualifying marks for open category is 50 marks, for Backward Classes (B.Cs) 40 marks and Scheduled Tribes (S.Ts) 35 marks in the written examination and the same ratio will apply for oral interview also."

The minimum qualifying marks for the written examination was

subsequently amended/corrected by Administrative committee at its meeting

held on 21.2.2002 (approved by Full Court on 6.3.2002) as follows :

"Considered and resolved to correct the typographical error occurred in the resolution of the Administrative Committee Meeting held on 24..7.2001 mentioning 50 marks, 40 marks and 35 marks instead of 50 percent, 40 percent and 35 percent i.e. the minimum qualifying marks for Open Category is 50 percent, for Backward classes (B.Cs) 40 percent and Scheduled Tribes (S.Ts) 35 percent in the written examination."

18. Let us try to analyse and find out the combined effect of the

rsolutions dated 24.7.2001 and 21.2.2002. The resolution dated 24.7.2001 1 7 prescribed the following marks for the written examination and the

interview:

(a) The marks for written examination was 75 marks and the minimum

qualifying marks was 50 marks for open category, 40 marks for backward

classes and 35 marks for Scheduled Tribes;

(b) The marks prescribed for interview was 25 marks and the minimum

qualifying marks for interview was 16.67 marks for open category, 13.33

marks for Backward Classes, and 11.67 marks for Scheduled Tribes (by

applying the ratio that was prescribed for written examination).

The resolution dated 24.7.2001 was amended on 21.2.2002 and it was

decided to have only minimum qualifying marks in the written test and not

for the oral examination. This is evident from the subject placed for

consideration on 21.2.2002 and the resolution on the subject. The subject

for consideration was : "Minimum qualifying marks in the written

examination". The resolution stated that the minimum qualifying marks was

50% for open category, 40% for Backward Classes and 35% for Scheduled

Tribes in the written examination". It did not prescribe any minimum for the 1 8 interviews. Nor was it understood as prescribing any minimum marks for

the interview. That the Administrative committee and Full Court intended

and in face proceeded on the basis that there would be no minimum marks

for the interview is evident from the fact that in regard to recruitment of 6

posts in 2001-2002, the minimum qualifying marks of 50%, 40% and 35%

were applied only for the written examination and no minimum qualifying

marks were applied in respect of interviews. We are informed that for the

2001-2002 selections, the procedure adopted was that all candidates who

passed the written examination by securing the minimum marks were called

for interview and the interview marks were added to the written

examination marks for the purpose of preparing the merit list and for the

purpose of selection. No minimum marks were applied for interview and no

candidate was excluded on the ground of not securing any minimum marks

in the interview. It is also not in dispute that even in the earlier selections

(held prior to 2001-2002) the High Court had applied minimum marks for

interviews. Therefore the only inference is that when the Administrative

Committee resolved on 30.11.2004 that the minimum qualifying marks for

OC/BC/SC/ST shall be as prescribed earlier what it meant and provided was

that there will be minimum qualifying marks for the written examination

only, that is 50% for OC, 40% for BC and 35% for ST. It may however be 1 9 mentioned that though minimum of 35% was prescribed only for ST

candidates in regard to 2001-2002 selections, that percentage was

adopted and applied in the written examination for both SC and ST

candidates by the resolution dated 30.11.2004.

19. The Administrative Committee of the High court (Chief Justice and

five senior Judges) as also the Interview Committee consisting of five

Judges (the Chief Justice and four other Judges) all along intended,

understood and proceeded on the basis with reference to the current

selection that minimum percentage was applicable only to written

examination and not for interviews. This is evident from the manner in

which interviews were conducted and merit list and selection list were

prepared by the Interview Committee and approved by the Administrative

Committee. This shows that the Interview Committee conducted the

interviews on 13th, 14th, 16th, 17th, 18th, 20th, 24th and 31st of March, 2006 on

the understanding that there were no minimum marks for interviews, that

the marks awarded by them in the interview will not by itself have the effect

of excluding or ousting any candidate from being selected, and that marks

awarded by them in the interviews will merely be added to the written

examination marks, for preparation of the merit list and selection. We are

referring to this aspect, as the manner of conducting interviews and 2 0 awarding marks in interviews, by the five members of the interviewing

committee would have been markedly different if they had to proceed on the

basis that there were minimum marks to be secured in the interview for

being considered for selection and that the marks awarded by them would

have the effect of barring or ousting any candidate from being considered

for selection. Thus, the entire process of selection - from the stage of

holding the examination, holding interviews and finalizing the list of

candidates to be selected - was done by the Selection committee on the basis

that there was no minimum marks for interview. To put it differently the

game was played under the rule that there was no minimum marks for the

interview.

20. Shri P. P. Rao, learned senior counsel appearing on behalf of the High

Court submitted that the Resolution dated 21.2.2002 merely corrected a

typographical error in the Resolution dated 24.7.2001, regarding minimum

marks relating to written examination, and the last portion of the Resolution

dated 24.7.2001, relating to interviews, (that is, the portion reading "and the

same ratio will apply for oral interview also") remained unaltered.

According to him, when the Administrative Committee passed the

Resolution dated 21.2.2002 in regard to the earlier selection and again

passed the resolution dated 30.11.2004 in regard to the current selection, to 2 1 conduct the examination with minimum qualifying marks as prescribed

earlier, the intention was to have minimum marks both for written

examination and the interview. We have already examined the resolutions

dated 24.7.2001 and 21.2.2002 and held that the combined effect was to

apply minimum percentage to only written examination and not for the

interview. However, to test the correctness of his contention, we asked the

learned counsel for the High Court to explain why the 2001-2002 selections

were done without applying minimum marks for interview. He was not in a

position to explain why the 2001-2002 selections were made without

applying any minimum marks for the interviews, if the resolutions dated

24.7.2001 and 21.2.2002 had really provided that there should be a

minimum marks for the interview. The only explanation was that it was due

to some oversight or mistake. The said explanation is neither satisfactory

nor valid.

Re : Question (ii)

21. The merit list and selection list prepared by the Interview Committee

and approved by the Administrative Committee, on the basis that there was 2 2 no minimum marks for interview, however, contained one error. The inter se

merit of the candidates were prepared with reference to a total of 125 marks,

comprising 100 for the written examination and 25 for the interview. But

the Administrative Committee had clearly resolved on 30.11.2004 that

evaluation of performance should be with reference to a maximum marks of

75 for written examination and 25 for interview. The written examination

was however, conducted with reference to a question paper set for a

maximum of 100 marks. The interviews, of course, were held with reference

to maximum of 25 marks. Therefore, it was necessary to scale down the

marks secured by the candidates in the written examination (with reference

to a maximum of 100 marks) proportionately to arrive at the marks with

reference to a maximum of 75 marks so that the ratio of maximum marks in

written examination and interview would be 3:1. If the maximum marks for

the written examination was 100 and for the interview was 25, then the ratio

between the marks for written examination and interview would be 4:1,

thereby altering the prescribed marks, after the selection process had begun.

We are, therefore, of the view that the first list requested an arithmetical

correction, that is, scaling down of the written examination marks to three-

fourth of what was secured by them with reference to a maximum of 100 2 3 marks, so that the ratio of 3:1 could be maintained in respect of the marks

for written examination and interviews.

2 4

Re : Question (iii)

22. When the Administrative Committee placed the merit lists and

Selection List before Full Court, apparently objections were raised on two

grounds. One related to the failure to provide the minimum of 50%, 40%

and 35% marks for interviews, on the interpretation of resolution dated

30.11.2004 read with earlier resolutions dated 24.7.2001 and 21.2.2002. The

second objection was that even though the Administrative Committee had

resolved that the marks for written examination would be 75 and interview

would be 25, at the time of tabulating the marks, the marks secured (out of

100 marks) in the written examination had been taken into account without

scaling it down with reference to a maximum of 75 marks. The Full Court

therefore, appointed a Sub-Committee of two Judges to examine the matter

and prepare a fresh merit list and selection list. The Sub-Committee

examined the matter and submitted a revised merit list by incorporating two

changes. Firstly, while tabulating the marks, it scaled down the marks

secured by the candidates in the written examination with reference to a

maximum of 100 marks, in proportion to a maximum of 75 marks so that the

final marks were with reference to a base of 75 marks for written

examination and 25 marks for interview as resolved on 30.11.2004. 2 5 Secondly, it applied the minimum percentage of 50%, 40% and 35% for

OC, BC, SC/ST even in regard to interviews and consequently, eliminated

those who secured less than the minimum in the interview from the process

of selection. The final selection list was prepared with reference to the fresh

merit list prepared by incorporating the said two changes.

23. As far as the first change is concerned, we have already held that

scaling down in unexceptional as it is in consonance with the criteria

decided by the Administrative Committee on 30.11.2004 before

commencing the selection process.

24. But what could not have been done was the second change, by

introduction of the criterion of minimum marks for the interview. The

minimum marks for interview had never been adopted by the Andhra

Pradesh High Court earlier for selection of District & Sessions Judges,

(Grade II). In regard to the present selection, the Administrative Committee

merely adopted the previous procedure in vogue. The previous procedure as

stated above was to apply minimum m arks only for written examination

and not for the oral examination. We have referred to the proper

interpretation of the earlier resolutions dated 24.7.2001 and 21.2.2002 and

held that what was adopted on 30.11.2004 was only minimum marks for 2 6 written examination and not for the interviews. Therefore, introduction of

the requirement of minimum marks for interview, after the entire selection

process (consisting of written examination and interview) was completed,

would amount to changing the rules of the game after the game was played

which is clearly impermissible. We are fortified in this view by several

decisions of this Court. It is sufficient to refer to three of them - P. K.

Ramachandra Iyer v. Union of India - 1984 (2) SCC 141, Umesh Chandra

Shukla v. Union of India - 1985 (3) SCC 721, and Durgacharan Misra v.

State of Orissa - 1987 (4) SCC 646.

25. In Ramachandra Iyer (supra), this Court was considering the validity

of a selection process under the ICAR Rules, 1977 which provided for

minimum marks only in the written examination and did not envisage

obtaining minimum marks in the interview. But the Recruitment Board

(ASRB) prescribed a further qualification of obtaining minimum marks in

the interview also. This Court observed that the power to prescribe

minimum marks in the interview should be explicit and cannot be read by

implication for the obvious reason that such deviation from the rules is

likely to cause irreparable and irreversible harm. This Court held that as

there was no power under the rules for the Selection Board to prescribed the

additional qualification of securing minimum marks in the interview, the 2 7 restriction was impermissible and had a direct impact on the merit list

because the merit list was to be prepared according to the aggregate marks

obtained by the candidates at written test and interview. This Court

observed :

"Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high up in the merit list was likely to be rejected on the ground that he has not obtaining minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtaining qualifying marks at viva voce test. This was impermissible and contrary to rules and the merit list prepared in contravention of rules cannot be sustained."

26. In Umesh Chandra (supra), the scope of the Delhi Judicial Service

Rules, 1970 came up for consideration. The rules provided that those who

secured the prescribed minimum qualifying marks in the written

examination will be called for viva voce; and that the marks obtained in the

viva voce shall be added to the marks obtained in the written test and the

candidate's ranking shall depend on the aggregate of both 27 candidates

were found eligible to appear for viva voce on the basis of their having

secured the minimum prescribed marks in the written examination. The final

list was therefore, expected to be prepared by merely adding the viva voce

marks to the written examination marks in regard to those 27 candidates. 2 8 But the final list that was prepared contained some new names which were

not in the list of 27 candidates who passed the written examination. Some

names were omitted from the list of 27 candidates who passed the written

examination. It was found that the Selection Committee had moderated the

written examination marks by an addition of 2% for all the candidates, as a

result of which some candidates who did not get through the written

examination, became eligible for viva voce and came into the list. Secondly,

the Selection Committee prescribed for selection, a minimum aggregate of

600 marks in the written examination and viva voce which was not provided

in the Rules and that resulted in some of the names in the list of 27 being

omitted. This Court held neither was permissible. Dealing with the

prescription of minimum 600 marks in the aggregate this Court observed :

"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 paragraph 7 of the counter-affidavit filed in Writ Petition 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...... 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 addition requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause (6) of the Appendix........ 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 2 9 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."

27. In Durgacharan Misra (supra), this Court was considering the

selection under the Orissa Service Rules which did not prescribe any

minimum qualifying marks to be secured in viva voce for selection of

Munsifs. The rules merely required that after the viva voce test the State

Public Service Commission shall add the marks of the viva voce test to the

marks in the written test. But the State Public Service Commission which

was the selecting authority prescribed minimum qualifying marks for the

viva voce test also. This Court held that the Commission had no power to

prescribe the minimum standard at viva voce test for determining the

suitability of candidates for appointment of Munsifs.

28. In Maharashtra State Road Transport Corporation v. Rajendra

Bhimrao Mandve - 2001 (10) SCC 51, this Court observed that `the rules of

the game, meaning thereby, that the criteria for selection cannot be altered

by the authorities concerned in the middle or after the process of selection

has commenced.' In this case the position is much more serious. Here, not

only the rules of the game were changed, but they were changed after the 3 0 game has been played and the results of the game were being awaited. That

is unacceptable and impermissible.

29. The resolution dated 30.11.2004 merely adopted the procedure

prescribed earlier. The previous procedure was not to have any minimum

marks for interview. Therefore, extending the minimum marks prescribed

for written examination, to interviews, in the selection process is

impermissible. 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 above. But if the Selection Committee want 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, 3 1 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.

30. It was submitted that Administrative Committee and Interview

Committee were only delegates of the Full Court and the Full Court has the

absolute power to determine or regulate the process of selection and it has

also the power and authority to modify the decisions of the Administrative

Committee. There can be no doubt about the proposition. The

Administrative Committee being only a delegate of the Full Court, all

decisions and resolutions of Administrative Committee are placed before

the Full Court for its approval and the Full Court may approve, modify or

reverse any decision of the Administrative Committee. For example when

the resolution dated 30.11.2004 was passed it was open to the Full Court,

before the process of selection began, to either specifically introduce a

provision that there should be minimum marks for interviews, or prescribe a

different ratio of marks instead of 75 for written examination and 25 for

interview, or even delete the entire requirement of minimum marks even for

the written examination. But that was not done. The Full Court allowed the

Administrative Committee to determine the method and manner of selection 3 2 and also allowed it to conduct the examination and interviews with

reference to the method and manner determined by the Administrative

Committee. Once the selection process was completed with reference to the

criteria adopted by the Administrative Committee and the results were

placed before it, the Full Court did not find fault with the criteria decided by

the Administrative Committee (as per resolution dated 30.11.2004) or the

process of examinations and interviews conducted by the Administrative

Committee and Interview Committee. If the Full Court had found that the

procedure adopted in the examinations or interviews was contrary to the

procedure prescribed, the Full Court could have set aside the entire process

of selection and directed the Administrative Committee to conduct a fresh

selection. The resolution dated 30.11.2004 was approved. It did not find any

irregularity in the examination conducted by the Administrative Committee

or the interviews held by the Selection Committee. The assessment of

performance in the written test by the candidates was not disturbed. The

assessment of performance in the interview by the Selection Committee was

not disturbed. The Full Court however, introduced a new requirement as to

minimum marks in the interview by an interpretative process which is not

warranted and which is at variance with the interpretation adopted while

implementing the current selection process and the earlier selections. As the 3 3 Full Court approved the resolution dated 30.11.2004 of the Administrative

Committee and also decided to retain the entire process of selection

consisting of written examination and interviews it could not have

introduced a new requirement of minimum marks in interviews, which had

the effect of eliminating candidates, who would otherwise be eligible and

suitable for selection. Therefore, we hold that the action of Full Court in

revising the merit list by adopting a minimum percentage of marks for

interviews was impermissible.

31. The Division Bench of the High Court while considering the validity

of the second list, has completely missed this aspect of the matter. It has

proceeded on an erroneous assumption that the resolution dated 30.11.2004

of the Administrative Committee prescribed minimum marks for interviews.

Consequently, it erroneously held that the Administrative Committee had

acted contrary to its own resolution dated 30.11.2004 in not excluding

candidates who had not secured the minimum marks in the interview and

that the Full Court had merely corrected the wrong action of the

Administrative Committee by drawing up the revised merit list by applying

marks for interview also. The decision of the Division Bench therefore,

cannot be sustained.

3 4 3 5

CONCLUSION

32. We therefore, find that the judgment of the Division Bench of the

High Court has to be set aside with a direction to the AP High Court to

redraw the merit list without applying any minimum marks for interview.

The merit list will have to be prepared in regard to 83 candidates by adding

the marks secured in written examination and the marks secured in the

interview. Thereafter, separate lists have to be prepared for each reservation

category and then the final selection of 10 candidates will have to be made.

The scaling down of the written examination marks with reference to 75

instead of 100 is however, proper.

33. In view of our said decision, WP(C) No.51/2007 and WP(C)

No.97/2007 do not survive for consideration. As a candidate is available

under the category of SC (Woman) and she will be selected, the question of

considering whether that post should be transferred to SC (General) does

not arise.

34. The SLP by Thirumala Devi is not maintained. She was not a selected

candidate, either in the first list or second list. She did not challenged the 3 6 process of selection by filing a writ petition. She was not a party to the writ

petitions. She is in no way aggrieved as she will not be selected, by

adopting either method. There is also a delay of 190 days. Therefore, the

said SLP is liable to be rejected on the ground of delay and on the ground it

is not maintainable.

35. In view of the above, we dispose of the matter as follows :

(i) The application for impleadment (IAs 2, 3, 4 & 5 filed in SLP(C)

No.18330/2006) are allowed.

(ii) The civil appeal filed by K. Manjusree is allowed and the judgment of

the High Court is set aside. The High Court is directed to prepare a fresh

merit list in regard to 83 candidates with reference to their marks in written

test and interview without applying any minimum marks for interviews and

thereafter finalise the selections in accordance with law.

(iii) The appointments of five candidates in pursuance of our interim order

need not be disturbed. The said five candidates will find a place in the

selection list even when it is redone, though their ranks/reservation category

may vary. Their rank and seniority will depend upon the fresh selection list 3 7 of ten candidates to be drawn and not on the appointment made in

pursuance of the interim order.

(iv) WP(C) No.51/2007 and WP(C) No.97/2007 are dismissed.

(v) The application for permission to file SLP by Thirumala Devi is

rejected. As a consequence SLP (CC) No.7188-89/2007 is rejected.

............................CJI [K. G. Balakrishnan]

.............................J [R. V. Raveendran]

.............................J [J. M. Panchal] New Delhi;

February 15, 2008.