GOA PUBLIC SERVICE COMMISSION versus PANKAJ RANE & ORS. on 6 April 2022

GOA PUBLIC SERVICE COMMISSION

v.

PANKAJ RANE & ORS.

(Civil Appeal No. 2779 of 2022)

APRIL 06, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Goa Civil Service Rules, 2016: r 10, 12 – Constitution ofIndia – Art.320 – Power of Commission, scope – Pursuant toadvertisement, the respondents appeared in the computer-basedscreening test and cleared the same – Thereafter, they appeared inthe written test and also cleared the same – Interview was scheduledand then the appellant-Commission fixed the cut-off marks forinterview to be 26 out of 40 – Interview took place and respondentswere declared unsuccessful – Respondents challenged before theHigh Court fixing of cut-off marks by the appellant-commissionupon the premise that as per rr.10 and 12 of the Goa Civil ServiceRules, and in light of Art.320 of the Constitution, the appellant-commission had no power to fix the cut- off at 65% at the interviewstage and no mention was even made in the advertisement– HighCourt allowed the respondents’s writ petition holding that the fixingof the 65% minimum qualifying marks in the oral interview wasillegal and beyond the powers of the appellant-commission – Henceinstant appeal – Held: r.10(5) declares that the marks to be allottedfor written examination and oral interview is to be notified in theadvertisement – Since there is no mention of minimum to be obtainedby any candidate in the interview, therefore such fixing of cut-offmarks by appellant- commission is beyond its powers – Service law.

Dismissing the appeal, the Court

HELD: 1. Rule 10 contemplates the holding of a competitiveexamination and oral interview. The competitive examination isto be conducted by the appellant in the manner notified by theGovernment from time to time. The proviso provides the appellantwith the power to hold a screening test required for shortlistingof candidates. The manner in which it is to be held is a matter tobe decided by the Commission from time to time. It is most

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Apertinent to note that Rule 10(3) specifically declares that acandidate must obtain a minimum passing percentage in thecompetitive written examination. It is pegged at 65 per cent ofthe total marks. The percentage is purportedly reduced in thecase of certain categories. It must noted that Rule 10(5) declaresthat the marks to be allotted for written examination and oralBinterview is to be notified in the advertisement inviting theapplications by the Commission. Commission cannot be found tohave acted contrary to the Rules insofar as, the Commission has,in the advertisement, declared the marks to be alloted for thewritten examination and oral interview. What is conspicuous byCits absence in Rule 10 is any minimum to be obtained by anycandidate in the interview. When the question arose as to howthe interview should be conducted, the Commission decided on16.05.2017 to fix 26 marks out of 40 as cut off marks. It no doubtworks out at 60 per cent of the total marks in the interviewsegment. Rules did not provide for a separate minimum for theDinterview. The advertisement did not provide for a separateminimum in the interview. It is almost a week before the interviewthat the Commission took the decision in this regard. [Paras 10,16][666-E-H; 673-B-C]

K. Manjusree v. State of A.P. & Anr. (2008) 3 SCCE512 : [2008] 2 SCR 1025; Durgacharan Misra v. Stateof Orissa (1987) 4 SCC 646 : [1987] 3 SCR 1097– relied on.

M.P. Public Service Commission v. Navnit Kumar Potdar(1994) 6 SCC 293 : [1994] 3 Suppl. SCR 665; YogeshFYadav v. UOI & Ors. (2013) 14 SCC 623 : [2013] 8SCR 194 – distinguished.

2. Rule 12 declares that the Commission is duty bound toforward to the Government the select list. The select list is to bearranged in the order of merit of the candidates. The select list isGto be sent arranged in the order of merit which, in turn, is to bedetermined in accordance with the aggregate marks obtained byeach candidate at the competitive written examination and oralinterview. The rule maker was conscious of the fact that it hasprescribed a separate minimum to be obtained by candidate inH

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the written examination. It also contemplated the holding of aninterview but as regards the interview a separate minimum wasnot stipulated. But at the same time, the law giver hascontemplated that the Commission is to prepare a select listwherein merit would dictate the order in which the select list isto be prepared and all that it is to do is to total up the marksobtained by the candidate in the competitive written examinationand the oral interview. In other words, the merit list would bedictated by the performance in the competitive examination andinterview subject only, no doubt, to the qualification that onlythose candidates who have obtained 65 marks in the writtenexamination would be qualified. [Paras 11, 12][667-B-E]

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3. Even before the filing of the writ petition, theCommission commenced fresh proceedings. While there is a stayof the impugned judgment, this Court had made it clear that theappointments will be subject to the outcome of the special leavepetition. Since the appellant fails in its challenge to the impugnedorder, the respondents must finally obtain redress. Accordingly,the directions contained in the impugned order, it is for AppointingAuthority to take the decision in accordance with law in the matter.[Para 22][676-G;677-A]

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State of Haryana v. Subhash Chander Marwaha (1974)3 SCC 220 : [1974] 1 SCR 165; State of Punjab andOthers v. Manjit Singh and Others (2003) (11) SCC 6;Tej Prakash Pathak and Ors. v. Rajasthan High Courtand Ors.– referred to.

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Case Law Reference

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 2779of 2022.

From the Judgment and Order dated 21.11.2017 of the High Courtof Bombay at Goa in Writ Petition No.660 of 2017.

Pratap Venugopal, Ms. Surekha Raman, Akhil Abraham, VijayBValsan, M/s K. J. John and Co., Advs. for the Appellant.

Siddharth Dave, Devadatt Kamat, Vinay Navare, Sr. Advs., AbuBakr Sabbaq, Rajesh Inamdar, Javedur Rehman, Siddhant Singh, AdityaBhat, Harsh Pandey, Revanta Solanki, Farrukh Rasheed, Ms. Ripul Swati,Suhas Kadam, M/s Black and White Solicitors, Ms. Ruchira Gupta, Ms.CShagun Rai, Shishir Deshpande, Advs. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

Leave granted.D

(1) By Advertisement No. 14/16 published by the appellant,applications were invited for filling up of six posts of unreserved categoryand three posts in the reserved category under the Goa Civil ServiceRules, 2016 (hereinafter referred to as ‘the Rules’). Pursuant to theadvertisement, 1866 candidates appeared in the Computer BasedEscreening Test (CBRT) held on 05.03.2017. When the results weredeclared, only seven candidates including respondent Nos. 1 to 3 beforethis Court were found to have cleared the test. In terms of theadvertisement and the Rules, the written test came to be conducted on10.04.2017 and 11.04.2017. In the results which came to be declared,out of the seven, only four candidates were found qualified. RespondentFNos. 1 to 3 were among them. There is one Mr. Vivek Krishna Naikwho, no doubt, stood first. On 16.05.2017, the appellant decided to fixthe cut off marks with respect to the interview. The total marks fixed forthe interview was 40. The appellant fixed cut off marks at 26. The finalinterview took place on 24.05.2017. Mr. Vivek Krishna Naik was declaredGsuccessful. The results of respondent Nos. 1 to 3 were not declared.Respondents took up the matter before the Chairman of the appellantpointing out the irregularities besides moving the Chief Secretary.Applications were made under the Right to Information Act seeking theinformation as to why results were not published. This was done byrespondent No. 1. We cut the long story short by indicating that onH

21.07.2017, a fresh advertisement came to be issued inviting applicationsfor 10 posts of Junior Scale officer of Goa Civil Services.

(2) Respondent Nos. 1 to 3 filed writ petition on 22.07.2017. Bythe impugned judgment, the High Court has allowed the writ petition andhas ordered as follows:

“24. We note that in the affidavit in reply, not obtaining minimumqualifying marks in oral interview pursuant to the decision in themeeting dated 16 May 2017 is the sole reason not to send thenames of the Petitioners to the Respondent-State. No other reasonthan the qualifying marks at the interview is shown to us.

25. In these circumstances, we hold that the action of theRespondent No. 1-Commission is not recommending the namesof the Petitioners to the post of Junior Scale Officer of the GoaCivil Services on the ground that they have not secured 65%minimum qualifying marks in the oral interview, is illegal and beyondthe powers of the Respondent No. 1-Commission. The decisiontaken by Respondent No. 1-Commission in the meeting dated 16May 2017 introducing criteria of 65% minimum qualifying marksat the interview for the post of Junior Scale Officer in the GoaCivil Service, therefore, cannot be sustained and it is quashed andset aside. The Respondent No. 1-Commission will take necessarysteps as per Rule 12 of the Rules of 2016 on the basis of theconsolidated marks of the Petitioners in the written examinationand oral interview without attaching any qualifying criteria to themarks obtained at the oral interview. The Respondent No. 1-Commission will take necessary steps within eight weeks fromthe date the order is uploaded to the server.”

(3) In the appeal, we have heard Shri Pratap Venugopal, learnedcounsel appearing on behalf of the appellant, Mr. Devadatt Kamat learnedsenior counsel appearing for respondent No. 1, Mr. Siddharth Dave,learned senior counsel for respondent No. 2, and Mr. Vinay Navare,learned senior counsel appearing for respondent No. 3.

(4) Learned counsel for the appellant would complain that theHigh Court has erred in placing reliance on the judgments which theHigh Court has indeed placed reliance on. The case of the appellant isbuilt around the failure of the respondents to obtain the minimum marksas prescribed by the Commission which, according to the Constitution, it A

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Ahas the power to do. The Commission is tasked with the job of conductingthe recruitment of candidates and to recommend their names. There isnothing illegal with the Commission in such an event, at fixing a bar anda fairly high bar with which alone, the Commission would be in a positionto procure services of the best candidates for appointment in the Stateservice. This is part of its constitutional imperative flowing from ArticleB320 of the Constitution. The marks for the examination and interviewwere indicated in the Advertisement. It is pointed out that the decision ofthis Court in K. Manjusree v. State of A.P. & Anr. (2008) 3 SCC 512 isdistinguishable with reference to the facts which actually arose forconsideration in the said case. Learned counsel also drew our attentionCto the judgment of this Court in Yogesh Yadav v. UOI & Ors. (2013) 14SCC 623. We notice that the attempt made by the appellant based onthe said judgment before the High Court did not yield success. The learnedcounsel also drew our attention to the judgment of this Court in M.P.Public Service Commission v. Navnit Kumar Potdar (1994) 6 SCC293. Finally, Shri Pratap Venugopal also pointed out that three learnedDJudges in Tej Prakash Pathak and Others v. Rajasthan High Courtand Others (2013) 4 SCC 540 have referred the issue relating to thecorrectness of the judgment in K. Manjusree (supra) to a larger Bench.The matter is pending consideration before the larger Bench. Numberof cases have been referred.

E(5) Mr. Pratap Venugopal, learned counsel, also contends that asfar as respondent No. 3 is concerned, there is an additional factor whichwould weigh against him. It is pointed out that under the Rules formulated,knowledge of Konkani language is an essential qualification. Thisrequirement is reiterated in the advertisement. It is pointed out that aFcounter affidavit was filed in the High Court and in the counter affidavit,the proceedings of the Board which took the interview have been producedwhich clearly brings out the fact that respondent No. 3 was not foundproficient in the Konkani language which proficiency was an inflexiblerequirement in the Rules and the advertisement.

(6) Per contra, Mr. Devadatt Kamat, learned senior counsel forGrespondent No. 1, would point out that on the facts obtaining in this case,the case on all fours is covered by a catena of judgments beginning withthe decision in P. K. Ramachandra Iyer v. UOI (1984) 2 SCC 141. Inother words, it is pointed out that with reference to the statutory rules inquestion which governed the destiny of the respondents, this Court wouldHhave to discountenance the case of the appellant Commission. The rules

in question according to respondent No. 1 are similar to the rules whichwas considered in P. K. Ramachandra Iyer’s case (supra). What ismore, the same line of argument appealed to a later Bench in the decisionreported in Durgacharan Misrav. State of Orissa (1987) 4 SCC 646.It is pointed out by Mr. Kamat, learned senior counsel, that the decisionof this Court in State of Haryana v. Subhash Chander Marwaha(1974) 3 SCC 220 which apparently forms the basis for the view takenin Tej Prakash Pathak and Others (supra) did not involve the Rulesimilar to Rule 12 of the Rules obtaining in the facts of this case. Thefacts in Tej Prakash Pathak and Others (supra) also did not involve astatutory injunction as is contained in Rule 12 of the Rules applicable inthe facts of this case. He would submit that it is not the law that whenthe matter is referred to a larger Bench, the decision which is under acloud ceases to possess its binding nature. What is more, having regardto the distinction in facts and the similarity which the facts of this casebears with the facts in P. K. Ramachandra Iyer’s case andDurgacharan Misra’s case (supra), etc., this case can be dealt with bythis Court without having to refer the same to the larger Bench.

(7) Shri Siddartha Dave, learned senior counsel appearing on behalfof the respondent No. 2, would also adopt the same line of reasoning.

He would, in fact, firmly contend that there is no power withPublic Service Commission to dilute the mandate of the Rules. This isnot a case he points out where there were a large number of candidateswho have been found eligible after the conduct of the written examinationand as part of the need to trim the number of candidates to be finallyconsidered, the Commission took a decision to resort to a separateminimum in the interview in this regard. He drew support from thejudgment which is reported in State of Punjab and Others v. ManjitSingh and Others (2003) (11) SCC 559.

(8) Mr. Vinay Navare, learned senior counsel, drew our attentionto Article 309 of the Constitution. He drew our attention to the word“recruitment”. He proceeded to further refer to Article 320 and he pointedout that the role of Commission is to be appreciated with reference toArticle 320(3)(a) and 320(3)(b). In other words, he would ascribe alimited role to the Commission viz., to conduct examination under Article320 (1) which, no doubt, he agrees would also include right to conductinterview. He would, therefore, adopt the arguments of the other seniorcounsel and submit that a careful perusal of the Rule which is made AB

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Aunder Article 309 of the Constitution would show that the impugnedjudgment is only to be supported.

He would further rely on the judgment of this Court inDurgacharan Misra’s case (supra). As far as respondent No. 3 notpossessing the essential qualification is concerned, he would submit thatBno such case was set up in the High Court. When queried about theproduction of the proceedings of the Selection Board which took theinterview, he would submit that it may not suffice as a careful perusal ofthe counter affidavit filed in the High Court which is produced alongwith an affidavit filed in this Court in January 2022 by the appellant,would not show that the appellant has taken any specific contentionCdenying the right of the respondent No. 3 to be placed in the select list onthe score that he did not possess the essential qualification as alleged.He would further contend that even in the special leave petition, there isno ground taken that respondent No. 3 was not qualified on the saidscore. He would point out that allowing such a contention to be urged atDthis stage would cause grave miscarriage of justice as far as respondentNo. 3 is concerned. He is taken by surprise and had it been raised beforethe High Court as such, it could have been dealt with at that stage hecomplains. This is besides pointing out that a perusal of the impugnedjudgment does not show that the appellant attempted to engage the HighCourt on this question which is sought to be raised. It is not a pureEquestion of law which could be raised for the first time.

ANALYSIS

(9) The High Court has proceeded with this matter on the basis ofa conspectus of the Rules. The Rules in question, in turn, are the RulesFmade under Article 309 and they are the Goa Civil Service Rules, 2016.

If we notice Rule 10 to begin with, Rule 10 reads as follows:

“10. Competitive examination for direct recruitment. - (1) TheCompetitive Examination for direct recruitment shall comprise awritten examination and an Oral Interview. The CompetitiveGExamination shall be conducted by the Commission, in the mannernotified by the Government, from time to time:

Provided whenever the Goa Public Service Commission is ofopinion of conducting screening test required for shortlisting ofcandidates, the same should be conducted by the Commission inHa manner decided by the Commission from time to time.

(2) Whenever Competitive written examination for the directrecruitment to the Junior Scale post of Service is conducted bythe Commission, the results of such written examination shall bedeclared by the Commission by displaying the same prominentlyon the notice board and website of the Commission.

(3) The minimum passing percentage for competitive writtenexamination shall be 65 percent of the total marks, the passingpercentage for candidates belonging to Scheduled Castes andScheduled Tribes shall be minimum 55 percent of the total marksand Other Backward Class, Differently Abled Persons and forChildren of Freedom Fighters, it shall be minimum 60 percent ofthe total marks.

(4) The Commission shall invite five times the number of candidatesas against the number of vacancies advertised, for the oralinterview purely on merit with due regard to the policy onreservation. In case there are more candidates securing the samenumber of marks as the last candidate, all such candidates shallalso be called for the oral interview.

(5) Marks to be allotted for written examination and oral interviewshall be notified in advance in the advertisement inviting applicationsby the Commission.

(6) Such oral interview shall be conducted under CCTV surveillanceor videography and the proceedings thereof shall also bevideorecorded and such recording shall form a permanent recordof the Commission.

We may also advert to Rule 12:

“12. List of successful candidates. - (1) The Commission shallforward to the Government a select list, arranged in the order ofmerit of the candidates which shall be determined in accordancewith the aggregate marks obtained by each candidate at thecompetitive written examination and oral interview:

Provided that if two or more candidates have secured equal numberof marks in the aggregate, their order of merit shall be in the orderof the marks secured by the candidates in the written examinationand if the candidates have secured equal marks in the writtenexamination then order of merit shall be as per their date of birth A

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and if in case the date of birth is also the same then the candidatepossessing higher educational qualifications will be placed higherin the merit list.

(2) The Commission while drawing the list of selected candidatesshall restrict the select list of candidates to the extent of declaredBnumber of vacancies.

(3) The select list drawn by the Commission shall be valid for aperiod of one year from the date of receipt of the same by theGovernment.

(4) The Commission shall, in addition to the select list, also prepareCa separate wait list up to 10 % of the vacancies based on themerit of the candidates in their respective category:

Provided further that the candidates from the wait list may berecommended to the Government only on requisition being madeby the Government if the candidates recommended earlier areDunablne to accept the offer of appointment for any reason. Suchwait list shall not be operative for any additional number of posts,other than those advertised. The wait list shall lapse on thedeclaration of the date of a subsequent examination for the samecategory or after a period of one year from the date of preparationEof such wait list, whichever is earlier.”

(10) Rule 10 contemplates the holding of a competitive examinationand oral interview. The competitive examination is to be conducted bythe appellant in the manner notified by the Government from time totime as pointed out by Mr. Vinay Navare, learned senior counsel. TheFproviso provides the appellant with the power to hold a screening testrequired for shortlisting of candidates. The manner in which it is to beheld is a matter to be decided by the Commission from time to time. It ismost pertinent to note that Rule 10(3) specifically declares that acandidate must obtain a minimum passing percentage in the competitivewritten examination. It is pegged at 65 per cent of the total marks. TheGpercentage is purportedly reduced in the case of certain categories.

Next, we must notice that Rule 10(5) declares the marks to beallotted for written examination and oral interview is to be notified in theadvertisement inviting the applications by the Commission. Here, as Mr.Pratap Venugopal, learned counsel, rightly points out the CommissionHcannot be found to have acted contrary to the Rules insofar as, the Commission has, in the advertisement, declared the marks to be allotedfor the written examination and oral interview. What is conspicuous byits absence in Rule 10 is any minimum to be obtained by any candidate inthe interview. The matter does not end here.

(11) Bearing considerable resemblance as we shall presently seewith the law in the facts is the decision of this Court starting with P. K.Ramachandra Iyer (supra), Rule 12 declares that the Commission isduty bound to forward to the Government the select list. The select list isto be arranged in the order of merit of the candidates. The select list is tobe sent arranged in the order of merit which, in turn, is to be determinedin accordance with the aggregate marks obtained by each candidate atthe competitive written examination and oral interview. The rule makerwas conscious of the fact that it has prescribed a separate minimum tobe obtained by candidate in the written examination. It also contemplatedthe holding of an interview but as regards the interview a separateminimum was not stipulated. But at the same time, the law giver hascontemplated that the Commission is to prepare a select list whereinmerit would dictate the order in which the select list is to be preparedand all that it is to do is to total up the marks obtained by the candidate inthe competitive written examination and the oral interview. In other words,the merit list would be dictated by the performance in the competitiveexamination and interview subject only, no doubt, to the qualification thatonly those candidates who have obtained 65 marks in the writtenexamination would be qualified. We need not be detained by the provisoto Rule 12.

(12) Rule 12(2) further provides that in drawing the list of selectedcandidates it shall limit itself to the declared number of vacancies. Waitlist is also contemplated. It is on a consideration of the statutory Rulesthat the High Court has taken the view that the case must be decided interms of P. K. Ramachandra Iyer (supra) and Durgacharan Misra(supra) apart from K. Manjusree (supra).

(13) We may notice in P. K. Ramachandra Iyer (supra), thefollowing:

“43. The relevant rules are Rules 13 and 14 of the 1977 Rules,which may be extracted:

“13.Candidates who obtain such minimum marks in the writtenexamination as may be fixed by the Board in their discretion shallbe summoned by them for viva voce.

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14. After the examination, the candidates will be arranged by theBoard in the order of merit in each category (professionalsubjectwise) as disclosed by the aggregate marks finally awardedto such candidates and such candidates as are found by the Boardto be qualified by the examination shall be recommended forappointment upto the number of unreserved vacancies decided tobe filled on the result of the examination.”

44. Mr Ramachandran, learned counsel for the petitioner contendedthat Rule 13 does not envisage obtaining of minimum marks at theviva voce test even though it contemplates obtaining minimummarks at the written test so as to be eligible for being called forviva voce test. It was further urged that Rule 14 specified themanner in which merit list is to be arranged. Rule 14 provides thatafter both written and viva voce tests are held, the candidates willbe arranged by the Board in the order of merit in each category(professional subjectwise) as disclosed by the aggregate marksfinally awarded to each candidate and such candidates as arefound by the Board to be qualified by the examination shall berecommended for appointment upto the number of unreservedvacancies decided to be filled on the result of the examination.On a combined reading of Rules 13 and 14, two things emerge. Itis open to the Board to prescribe minimum marks which thecandidates must obtain at the written test before becoming eligiblefor viva voce test. After the candidate obtains minimum marks ormore at the written test and he becomes eligible for being calledfor viva voce test, he has to appear at the viva voce test. NeitherRule 13 nor Rule 14 nor any other rule enables the ASRB toprescribe minimum qualifying marks to be obtained by thecandidate at the viva voce test. On the contrary, the language ofRule 14 clearly negatives any such power in the ASRB when itprovides that after the written test if the candidate has obtainedminimum marks, he is eligible for being called for viva voce testand final merit list would be drawn up according to the aggregateof marks obtained by the candidate in written test plus viva voceexamination. The additional qualification which ASRB prescribedto itself namely, that the candidate must have a further qualificationof obtaining minimum marks in the viva voce test does not findplace in Rules 13 and 14, it amounts virtually to a modification ofthe rules. By necessary inference, there was no such power in

the ASRB to add to the required qualifications If such power isclaimed, it has to be explicit and cannot be read by necessaryimplication for the obvious reason that such deviation from therules is likely to cause irreparable and irreversible harm. It howeverdoes not appear in the facts of the case before us that because ofan allocation of 100 marks for viva voce test, the result has beenunduly affected. We say so for want of adequate material on therecord. In this background we are not inclined to hold that 100marks for viva voce test was unduly high compared to 600 marksallocated for the written test. But the ASRB in prescribingminimum 40 marks for being qualified for viva voce testcontravened Rule 14 inasmuch as there was no such power in theASRB to prescribe this additional qualification, and this prescriptionof an impermissible additional qualification has a direct impact onthe merit list because the merit list was to be prepared accordingto the aggregate marks obtained by the candidate at written testplus viva voce test. Once an additional qualification of obtainingminimum marks at the viva voce test is adhered to, a candidatewho may figure high up in the merit list was likely to be rejectedon the ground that he has not obtained minimum qualifying marksat viva voce test. To illustrate, a candidate who has obtained 400marks at the written test and obtained 38 marks at the viva vocetest, if considered on the aggregate of marks being 438 was likelyto come within the zone of selection, but would be eliminated bythe ASRB on the ground that he has not obtained qualifying marksat viva voce test. This was impermissible and contrary to rulesand the merit list prepared in contravention of rules cannot besustained.

(14) We must next notice Durgacharan Misra (supra):

“6. Rules 16, 17, 18 and 19 are the relevant rules which have amaterial bearing on the question that falls for determination. Theserules read as under:

“16. The Commission shall summon for the viva voce test allcandidates who have secured at the written examination not lessthan the minimum qualifying marks obtained in all subjects takentogether which shall be 30 per cent of the total marks in all thepapers:

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Provided that government may after consultation with the HighCourt and Commission fix higher qualifying marks in any or all ofthe subjects in the written examination in respect of any particularrecruitment.

17. The Chief Justice or any of the other Judges of the HighBCourt nominated by the Chief Justice shall represent the HighCourt and be present at the viva voce test and advise theCommission on the fitness of candidates at the viva voce testfrom the point of view of their possession of the special qualitiesrequired in the judicial service, but shall not be responsible forselection of candidates.

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18. The marks obtained at the viva voce test shall be added to themarks obtained in the written examination. The names ofcandidates will then be arranged by the Commission in order ofmerit. If two or more candidates obtain equal marks in theaggregate, the order shall be determined in accordance with theDmarks, secured at the written examination. Should the markssecured at the written examination of the candidate concerned bealso equal, then the order shall be decided in accordance with thetotal number of marks obtained in the optional papers.

19. (1) The Commission shall then forward to the government inEthe Law Department the list of candidates prepared in accordancewith Rule 18 indicating therein whether a candidate belongs toScheduled Caste or Scheduled Tribes.

(2) The list prepared shall be published by the Commission forgeneral information.

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(3) The list, unless the Governor in consultation with the HighCourt otherwise decides, shall ordinarily be in force for one yearfrom the date of its preparation by the Commission.”

7. The rule-making authorities have provided a scheme forselection of candidates for appointment to judicial posts. Rules 16Gprescribes the minimum qualifying marks to be secured bycandidates in the written examination. It is 30 per cent of the totalmarks in all the papers. The candidates who have secured morethan that minimum would alone be called for viva voce test. TheRules do not prescribe any such minimum marks to be secured atHthe viva voce test. After the viva voce test, the Commission shall add the marks of the viva voce test to the marks in the writtenexamination. There then, Rule 18 states:

“The names of candidates will then be arranged by the Commissionin the order of merit”.

11. In the light of these decisions the conclusion is inevitable thatthe Commission in the instant case also has no power to prescribethe minimum standard at viva voce test for determining the suitabilityof candidates for appointment as Munsifs.

15. The Rules have been framed under the proviso to Article 309read with the Article 234 of the Constitution. Article 234 requiresthat the appointment of persons other than District Judge to theJudicial Service of State shall be made by the Governor of theState. It shall be in accordance with the Rules made by theGovernor in that behalf after consultation with the State ServiceCommission and with the State High Court. The Rules in questionhave been made after consultation with the Commission and theState High Court. The Commission which has been constitutedunder the Rules must, therefore faithfully follow the Rules. It mustselect candidates in accordance with the Rules. It cannot prescribeadditional requirements for selection either as to eligibility or as tosuitability. The decision of the Commission to prescribe theminimum marks to be secured at the viva voce test would,therefore, be illegal and without authority.

(15) A question may arise whether the Public Service Commissioncan depart from the Rules in this regard. Light is shed by the viewsexpressed by this Court in Manjit Singh and Others (supra). We mayrefer to the following exposition made by this Court.

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Where no special qualification or any prescribed standard ofefficiency over and above the eligibility criteria is provided by theRules or the State, it would not be for the Commission to imposeany extra qualification/standard supposedly for maintainingminimum efficiency which, it thinks, may be necessary.

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10. As observed earlier, for the purpose of shortlisting it would notat all be necessary to provide cut-off marks. Any number of givencandidates could be taken out from the top of the list up to thenumber of the candidates required in order of merit. For example,there may be a situation where more than the required number ofcandidates may obtain marks above the cut-off marks, say forexample, out of 10,000 if 8000 or 6000 candidates obtain 45%marks then all of them may have to be called for further tests andinterview etc. It would in that event not serve the purpose ofshortlisting by this method to obtain the given ratio of candidates,and the vacancy available. For 100 vacancies at the most 500candidates need be called. If that is so, any candidate who isotherwise eligible up to the 500th position, whatever be thepercentage above or below the fixed percentage would be eligibleto be called for further tests. Thus the purpose of shortlisting wouldbe achieved without prescribing any minimum cut-off marks.

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11. In the case in hand, it was not for the Commission to havefixed any cut-off marks in respect of the reserved categorycandidates. The result has evidently been that candidatesotherwise qualified for interview stand rejected on the basis ofmerit say, they do not have up-to-the-mark merit as prescribed byEthe Commission. The selection was by interview of the eligiblecandidates. It is certainly the responsibility of the Commission tomake the selection of efficient people amongst those who areeligible for consideration. The unsuitable candidates could well berejected in the selection by interview. It is not the question ofsubservience but there are certain matters of policies, on whichFthe decision is to be taken by the Government. The Commissionderives its powers under Article 320 of the Constitution as well asits limits too. Independent and fair working of the Commission isof utmost importance. It is also not supposed to function underany pressure of the Government, as submitted on behalf of theGappellant Commission. But at the same time it has to conform tothe provisions of the law and has also to abide by the rules andregulations on the subject and to take into account the policydecisions which are within the domain of the State Government.It cannot impose its own policy decision in a matter beyond itspurview.”

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(16) In this regard, we must notice that in the facts of this case ofthe 1866 candidates who appeared in the screening test / computer test,only 7 candidates which included respondent Nos. 1 to 3 cleared thetest. The number stood further reduced to 4 and which again includedrespondents Nos. 1 to 3. Therefore, when the question arose as to howthe interview should be conducted, the Commission decided on 16.05.2017to fix 26 marks out of 40 as cut off marks. It no doubt works out at 60per cent of the total marks in the interview segment. Rules did not providefor a separate minimum for the interview. The advertisement did notprovide for a separate minimum in the interview. It is almost a weekbefore the interview that the Commission took the decision in this regard.We have stated these facts only to highlight that this is not a case wherethe Commission was faced with the task of having to interview a verylarge number of candidates. For 6 unreserved posts and 5 reserved postsfinally, only 4 emerged as candidates to be dealt with at the final stageviz., the oral interview. This, therefore, is distinguishable, in other words,from the judgment relied upon by Mr. Pratap Venugopal, learned counselfor the appellant viz. M.P. Public Service Commission (supra). Thatwas a case where this Court noted that the appellant Commission thereinnoting the large number of applications received from the GeneralCategory candidates against four posts decided to call only 71 applicantswho had 7[ 1/2] years of practice although 188 applicants were eligible, inview of the fact that under Section 8(3)(c) of the provisions applicable inthe said case, five years of practice as an Advocate or pleader of MadhyaPradesh was a minimum requirement. It was therefore, a case whichthough relied upon by the appellant is distinguishable on facts. This isapart from noticing that the appellant has not been able to inform theCourt as to whether there was a Rule in the said case similar to Rule 12as present in this case. As far as Yogesh Yadav (supra) is concerned,this again is not a case which involved a Rule resembling Rule 12 of theRules. We further may also notice that in the said case recruitment wascarried out by the employer itself and it was not done by the recruitingbody which the appellant is and which is limited by statutory rules madeunder Article 309 of the constitution.

(17) Para 13 of Yogesh Yadav (supra) is extracted hereinbelow:

13. The instant case is not a case where no minimum marks areprescribed for viva voce and this is sought to be done after thewritten test. As noted above, the instructions to the examinees AB

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Aprovided that written test will carry 80% marks and 20% markswere assigned for the interview. It was also provided thatcandidates who secured minimum 50% marks in the generalcategory and minimum 40% marks in the reserved categories inthe written test would qualify for the interview. The entire selectionwas undertaken in accordance with the aforesaid criterion whichBwas laid down at the time of recruitment process. After conductingthe interview, marks of the written test and viva voce were to beadded. However, since a benchmark was not stipulated for givingthe appointment. What is done in the instant case is that a decisionis taken to give appointments only to those persons who haveCsecured 70% marks or above marks in the unreserved categoryand 65% or above marks in the reserved category. In the absenceof any rule on this aspect in the first instance, this does not amountto changing the “rules of the game”. The High Court has rightlyheld that it is not a situation where securing of minimum markswas introduced which was not stipulated in the advertisement,Dstandard was fixed for the purpose of selection. Therefore, it isnot a case of changing the rules of the game. On the contrary inthe instant case a decision is taken to give appointment to onlythose who fulfilled the benchmark prescribed. The fixation of sucha benchmark is permissible in law. This is an altogether differentEsituation not covered by Hemani Malhotra case [HemaniMalhotra v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2SCC (L&S) 203] .

(18) Though learned counsel for the appellant did emphasise thesaid observations, we are of the view that it is distinguishable at any rateFhaving regard to Rule 12 which we have already noticed which isapplicable to the facts of this case.

In other words, we would think that in the facts of this case, theyare closer to the facts of the case in P. K. Ramachandra Iyer case andjudgment following the same which we have already noted. As far asGTej Prakash Pathak and Others case is concerned, it again did notspecifically involve a Rule similar to Rule 12.

(19) It is true that there is a distinction in the facts with those ofthe case in K. Manjusree (supra). We notice that that was a case wherethe requirement of minimum marks for interview was made after theHentire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared thatit would amount to changing the Rules after process is completed. Inthis case, the stipulation as to the minimum to be obtained in the interviewwas announced prior to the holding of the interview. However, we wouldthink that this case must fall to be decided on the principle which hasbeen laid down in P. K. Ramachandra Iyer (supra) and DurgacharanMisra (supra) for the reasons which we have already indicated.

(20) As far as the question relating to the respondent No. 3 notbeing in possession of the essential qualification, we may notice thefollowing:

It is true that under the Rules, knowledge of Konkani is declaredas an essential qualification which the advertisement also reiterates. Theinterview was held. The writ petition was filed by all respondents together.The contention which appears to have engaged the High Court in theimpugned judgment related to the power of the appellant to stipulate fora separate minimum in the interview. The impugned judgment does notreflect even in the slightest way any attempt on the part of the appellantto non-suit the third respondent on the ground that apart from therebeing no merit in the contention of respondents that Commission did nothave the power to stipulate for a separate minimum, respondent No. 3was even otherwise disqualified. We do not find even a whisper of sucha case in the impugned judgment. We further notice that there is no casethat the appellant has urged this as a ground in the special leave petition.It is true in objection filed in this case in this Court in January, 2022, theappellant has produced what is described as its pleadings in the HighCourt. We have perused the pleadings. The appellant has not been ableto specifically point out any allegation as such dealing with the ineligibilityof respondent no. 3 on the ground that he is not possessed of the essentialqualification of the kind complained of. It is true also no doubt that thequestion as to whether a candidate is qualified, in that, he is havingknowledge of the Konkani language would appear to be tested in theinterview. It is equally true that it is an essential qualification. But as towhether a person would be disqualified on the ground that he was nothaving particular essential qualification in the facts is a pure question offact. This is not seen pleaded as such. We reiterate that the impugnedjudgment does not show that the appellant has urged this before theHigh Court. Apart from the proceedings of the Selection Board, there isno record produced to show that respondent No. 3 was disqualified onthis ground.

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AWe would therefore, think that it may not be appropriate to permitthe appellant to raise this question.

(21) We do think that the respondents are justified in pointing outthat the High Court is right in not permitting the appellant to contend thatthe respondents cannot be treated as entitled to be recommended. TheBquestion however may arise as to what is the nature of the relief whichcan be granted. We notice from the reliefs which have been set out inthe writ petition that it is as follows:

“(A) This Hon’ble Court be pleased to issue a writ of mandamusor a writ in the nature of mandamus or any other appropriate writ,Corder or direction, commanding the Respondent No. 1 to preparea Select List in terms of the Advertisement No. 14/2016 and makerecommendations to the Government on the basis of the said SelectList in accordance with law; (B) This Hon’ble Court also be pleased to issue an appropriateDwrit, order or direction, to quash and set aside the Advertisementdated 21.07.2017 bearing No. 7/2017.

(C) Pending the hearing and final disposal of this Petition, thisHon’ble Court be pleased to stay the execution and operation ofthe entire Selection Process pursuant to the Advertisement No.E7/2017 dated 21.07.2017; (D) Ad-interim relief in terms of prayer clause (C); (E) Any other relief, as deemed fit and proper may please begranted in favour of the Petitioners herein; F

(F) For costs.”

We have already noticed the relief granted by the High Court.

(22) There is yet another aspect which we must consider. Asalready noticed, even before the filing of the writ petition, the CommissionGcommenced fresh proceedings. While there is a stay of the impugnedjudgment, this Court had made it clear that the appointments will besubject to the outcome of the special leave petition.

Since the appellant fails in its challenge to the impugned order,the respondents must finally obtain redress. Accordingly, while we dismissH

the appeal, we reiterate the directions contained in the impugned orderand it is for Appointing Authority to take the decision in accordance withlaw in the matter.

The appeal is dismissed without any orders as to costs.

Appellant will forward the list in terms of the directions by theHigh Court within a period of four weeks from today. Respondent No. 4will take a decision on the same in accordance with law within a furtherperiod of six weeks from the date of the receipt of the list from theappellant.

Devika Gujral(Assisted by : Mahendra Yadav, LCRA)

Appeal dismissed.

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