BAROT VIJAYKUMAR BALAKRISHNA & ORS.versusMODH VINAYKUMAR DASRATHLAL & ORS.

                             [2011] 7 S.C.R. 154

     A         BAROT VIJAYKUMAR BALAKRISHNA & ORS.
'-                                   v.
                MODH VINAYKUMAR DASRATHLAL & ORS.
                  (Civil Appeal Nos. 4959-4962 of 2011)
                                JULY 5, 2011.
     B
                  [AFTAB ALAM AND R.M. LODHA, JJ.]

             Service Law:

     c      Recruitment - Selection of Assistant Public Prosecutors
       - Minimum qualifying mark for viva voce, though prescribed
       in the Rules, not specified in the advertisement - State Public
       Service Commission fixing cut off mark for viva voce after the
       result of written examination, and notifying the candidates
     D called for interview about it - HELD: The course followed by
       the Commission was in compliance with the ru(es and it did
       not cause any prejudice to any candidate either- Thus, there
       is no illegality at all in the selection process much less any
       bias or malice of any kind - Assistant Public Prosecutor,
       Gujarat General State Service Class II Recruitment
     E
       (Examination) Rules, 2008 - r. 12(3).

             Writ petitions were filed before the High Court
       challenging the selection of Assistant Public Prosecutors
       on the ground that introduction of minimum qualifying
     F mark for the viva voce after the commencement of the
       selection process was illegal and actuated by bias on the
       part of the State Public Service Commission. The Single
       Judge of the High Court dismissed the writ petitions.
       However, the Division Bench in the intra-court appeals
     G filed by the writ petitioners, quashed the select list and
       directed that a fresh list be drawn up on the basis of the
       aggregate of the marks.obtained by the candidates in the
       written test and viva voce regardless of the minimum
       qualifying mark prescribed by the Commission for the
     H                              154
   BAROT VIJAYKUMAR BALAKRISHNA v. MODH                  155
          VINAYKUMAR DASRATHLAL
viva voce. Aggrieved, the 102 selected candidates, who          A
were appointed and were not parties in the writ petitions,
and the Commission filed the appeals.
    Allowing the appeals, the Court
    HELD: 1.1. In the facts and circumstances of the            B
case, there is no illegality in the selection process much
less any bias or malice of any kind. It is necessary to bear
in mind that no objection can be taken to the fixing of the
cut off mark separately for the viva voce as that is the
mandate of the statutory rules-governing the recruitment.       C
[para 20-21] [166-H; 167-A-F-G]
     1.2. Further, the marks obtained by the short listed
candidates in the written test were kept in a sealed cover
and those were taken out only after the oral interview of
                                                             0
all the candidates was over. At the time a candidate
appeared for the interview, the members of the interview
board had no means to know the marks obtained by him/
her in the written test. In such a situation it could not be
possible for the interview board to purposefully exclude
a candidate by giving less than the minimum qualifying E
mark for the viva voce even though he/she might have
been selected on the basis of the marks obtained in the
written test alone. In the facts of the case, the examples
cited by the respondents do not show that there was any
arbitrariness or play of bias in giving marks to the F
candidates in the viva voce or that there was any flaw in
the selection process making it liable to be struck down.
[para 22-23] [168-A-E]

   Ashok Kumar Yadav v. State of Haryana, 1985 (1)              G
                  =
Suppl. SCR 657 (1985) 4 SCC 417 - referred to.
     1.3. It is true that the better and the more proper way
to give effect to the provision of r. 12 (3) of the Assistant
Public Prosecutor, Gujarat General State Service Class II
                                                                H
    156      SUPREME COURT REPORTS             (2011) 7 S.C.R.


A Recruitment (Examination) Rules, 2008 was to specify the
  minimum qualifying mark for the viva voce also in the
  advertisement itself. But that was not done. Though the
  rules framed under Article 309 of the Constitution
  governing the selection process mandated that there
8 would be minimum qualifying marks each for the written
  test and the oral interview, the cut off mark for viva voce
  was not specified in the advertisement. In view of the
  omission, there were only two courses open. One, to
  carry on with the selection process and to complete it
C without fixing any cut off mark for the viva voce and to
  prepare the select list on the basis of the aggregate of
  marks obtained by the candidates in the written test and
  the viva voce. That would have been clearly wrong and
  in violation of the statutory rule governing the selection.
  On behalf of the respondents themselves, it was
D accepted that the direction by the division bench of the
  High Court to draw up the merit list ignoring the minimum
  qualifying mal'k separately fixed for the viva voce may not
  be sustainable as that would be contr..::y to the statutory
  rules governing the selection and appointment. The other
E course was to fix the cut off mark for the viva voce and
  to notify the candidates called for interview about it. This
  is the course that the Commission followed. This was in
  compliance with the rules and it did not cause any
  prejudice to any candidate either. Thus, there is no
F illegality at all in the selection process. [para 6, 25 and 31)
  [159-C-D; 169-A-C; 173-F-H; 174-A]
      K. Manjusree v. State of Andhra Pradesh and another
                         =
  2008 (2) SCR 1025 (2008) 3 sec 512 and the other
G Hemani Malhotra v. High Court of Delhi, 2008 (5) SCR 1066      =
  (2008) 7 sec 11 - distinguished
         Ramesh Kumar v. High Court of Delhi and another 2010
                 =
    (2) SCR 256 (2010) 3 SCC 104 - held inapplicable.

H         1.4. The Division Bench of the High Court took a
   BAROT VIJAYKUMAR BALAKRISHNA v. MODH                   157
          VINAYKUMAR DASRATHLAL
wrong view of the matter and, as such, its judgment is           A
set aside and all the writ petitions filed by the
respondents before the High Court are dismissed. [para
32] [17 4-B-C]
                     Case Law Reference
                                                                 B
    1985 (1) Suppl. SCR 657 referred to            para 23

    2008 (2) SCR 1025            distinguished     para 26

    2008 (5) SCR 1066            distinguished     para 26
                                                                 c
    2010 (2) SCR 256             held inapplicable para 29

    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4959-4962 of 2011 etc.

     From the Judgment & Order dated 10.12.2009 of the High      D
Court of Gujarat in Letter Patent Appeal No. 1586 of 2009 and
Special Civil Application No. 7699 of 2009 and Letter Patent
Appeal No. 1643 of 2009 in Special Civil Application No. 8287
of 2009 Letter Patent Appeal No. 1644 of 2009 in Special Civil
Application No. 8289 of 2009 and Letter Patent Appeal No.        E
1647 of 2009 in Special Civil Application No. 8292 of 2009.

                            WITH

Civil Appeal No. 4963 of 2011.
                                                                 F
      P.P.Rao, Ranjit Kumar, Uday U. Lalit, K.V. Viswanathan,
Purushottam Sharma Tripathi, Utsav Sidhu, Filza Mooms,
Apeksha Sharan, Sameer Parekh, Shamil Majumdar, Nitin
Thukral, Suman Yadav, Parekh & Co., Preetesh Kapur,
Hemantika Wahi, Jesal, Nachiketa Joshii Pankay Chaudhary,        G
Chaitanya Joshi Sudhakar Joshi, Abhishek Kaushik, Minakshi
Vij, Praveen Chaturvedi, Jyoti Chaturvedi, Harish Parikh, R.N.
Singh, D.B. Vohra for the Appearing parties.

    The Judgment of the Court was delivered by
                                                                 H
    158       SUPREME COURT REPORTS              (2011] 7 S.C.R.


A         AFTAB ALAM, J. 1. Leave granted.

        2. These appeals arise from a batch of writ petitions filed
  before the Gujarat High Court questioning the validity of the
  appointments of Assistant Public Prosecutor (Class-II) made
8 from the select list prepared on the basis of the written
  examination and viva voce and personality test held by the
  Gujarat Public Service Commission. The challenge was based
  on the ground that the minimum qualifying mark, separately
  fixed for the viva voce, was introduced just two or three days
  before the commencement of the oral tests though it was not
C stipulated in the advertisement issued by the Commission for
  filling up the posts. According to the writ petitioners
  (respondents before this Court), the introduction of the
  minimum qualifying mark for the viva voce, after the
  commencement of the selection process was, illegal and
D actuated by bias on the part of the Commission. It led to a
  number of highly anomalous results and completely vitiated the
  selections and the appointments made on that basis.

       3. A learned single judge of the High Court did not accept
E the writ petitioners' contention and dismissed all the writ
  petitions by judgment and order dated August 17, 2009,
  passed in Spe'Cial Civil Application No.7699 of 2009 (and other
  analogous cases).

        4. Against the judgment of the single judge, the writ
F petitioners filed intra-court appeals and a division bench of the
  High Court allowed the appeals and set aside the judgment of
  the single judge. It held that the action of the Commission in
  introducing the minimum qualifying mark for the viva voce, in
  the middle of the selection process, was bad and "the
G Commission appears to have guided by legal malafide (sic)".
  It, accordingly, quashed the select list and the appointments
  made on its basis and directed that a fresh list be drawn up
  on the basis of the aggregate of marks obtained by the
  candidates in the written test and the viva voce regardless of
H the minimum qualifying mark prescribed by the Commission for
   BAROT VIJAYKUMAR BALAKRISHNA v. MODH                         159
   VINAYKUMAR DASRATHLAL [AFTAB ALAM, J.]
the viva voce. It directed the concerned authorities to complete       A
the process within 2 months from the date of the judgment and
till then permitted the appointees to continue to serve in their
respective positions.

     5. Against the judgment of the division bench, the appeals
                                                                       8
are filed {i) by the candidates {102 in number) who were
appointed as Assistant Public Prosecutors on the basis of the
impugned selection made by the Commission {and who were
not parties in the writ petitions, or the intra court appeals before
the court) and {ii) by the Gujarat Public Service Commission.
                                                                       c
       6. Before proceeding to examine the facts of the case and
the rival contentions of the parties, it may be stated that on
behalf of the respondents, it was accepted that the direction
by the division bench of the High Court to draw up the merit
list ignoring the minimum qualifying mark separately fixed for         o
the viva voce may not be sustainable as that would be contrary
to the statutory rules governing the selection and appointment.
The only course left open, therefore, was to scrap the entire
selection process and start from the beginning all over again.

     7. Coming to the facts of the case, it is interesting to note     E
how the process of filling up the posts of Assistant Public
Prosecutor in such large numbers was put into motion. From a
limitation petition, for condoning the inordinate delay of 1695
days in filing a State criminal appeal, it came to light that there
was acute shortage of Assistant Public Prosecutors and as a            F
result, the functioning of the subordinate criminal courts in the
State badly suffered. The High Court took up the matter and
on its initiative, the State Government sanctioned 180 new
posts of Assistant Public Prosecutors. After due consultation
with the Gujarat Public Service Commission and the concerned           G
authorities of the State Government, the Advocate General of
the State, assured the High Court that all the newly sanctioned
posts and the vacancies existing in the already sanctioned
cadre (242 in total) would be filled up in a time bound manner
on t~e basis of rules especially framed for the purpose as a           H
    160        SUPREME COURT REPORTS                 [2011) 7 S.C.R.


A   one time measure. The statements made by the Advocate
    General before the High Court are recorded in the order dated
    October 08, 2008, passed by a division bench of the High
    Court in Criminal Miscellaneous Application No.13937 of 2007
    in Criminal Appeal No.487 of 2006. From the order of the High
8   Court it appears that the Advocate General stated before the
    court that selection would be made on the basis of a written
    test followed by oral interviews and minimum qualifying marks
    would be fixed for the tests. The relevant passage in the High
    Court order is as follows:

C         ".... Shri Trivedi, learned Advocate General, in consultation
          with the Secretary, GPSC, has further submitted that
          approximately three times of number of posts to be filled
          in, starting from top to bottom, the applicants will be called
          for Oral Interviews. However, minimum qualifying marks will
D         be prescribed and the aforesaid will also be reflected and/
          or notified in the Advertisement.. .. ."

       8. The High Court passed the order incorporating the
  statements made by the Advocate General and directed the
E concerned authorities to make appointments on all the available
  posts of Assistant Public Prosecutor following the time schedule
  given in the order.

       9. In furtherance of the Advocate General's assurance
  given to the court and in compliance with the court's direction
F on that basis, a set of rules called the Assistant Public
  Prosecutor, Gujarat General State Service Class II Recruitment
  (Examination) Rules, 2008 (for short "the Recruitmer:it Rules")
  were framed by the State Government under the proviso to
  Article 309 of the Constitution of India and published in the
G Gujarat Government Gazette, Extraordinary, dated, Aurust 6,
  2008. Rule 12 of the Recruitment Rules dealing with the nature
  of examination provided as under:

          "Nature of Examination
H
  BAROT VIJAYKUMAR BALAKRISHNA v. MODH                             161
  VINAYKUMAR DASRATHLAL [AFTAB ALAM, J.]
    12 (1) The examination shall be in two parts as shown in             A
    Appendix. Part I shall be written examination and Part II
    shall be viva-voce and Personality Test.

    (2) The Commission shall fix the qualifying marks to be
    obtained by a candidate in Part-I of the examination in              8
    Appendix and shall call only those candidates who fulfil
    qualifying standard for Viva-voce and Personality Test.

    Provided that candidates belongs to the Scheduled
    Castes, Scheduled Tribes or Socially and Educationally
    Backward Classes including Nomadic Tribes and                        C
    Denotified Tribes, may be summoned for viva-voce and
    Personality Test by applying relaxed standard in Part-I of
    the examination if the Commission is of the opinion that
    sufficient number of candidates from those communities
    are not likely to be called for viva-voce and personality test       D
    on the basis of the qualifying standard for general category
    in order to fill up the vacancies reserved for such
    categories.

    (3) The commission shall fix the qualifying marks to be              E
    obtained by a candidate in the viva-voc;e and personality
    test.

    (4) The candidate shall be required to attend the written
    part of the examination and viva-voce and personality test
    at his own expense;                   ·                              F

    (5) If the candidate, who is qualified for the viva-voce and
    personality test, fails to attend the viva-voce and
    personality test, shall not be eligible for selection."

                                             (emphasis added)            G

    10. Rule 14 dealt with the result of the examination and in



                                                              ----
sub-rule (1) provided as follows:

    "Result of Examination                            -------- .         H
    162        SUPREME COURT REPORTS                (2011] 7 S.C.R.

A         14(1) After two stage of the examination are over, the
          commission shall prepare the result arranging the marks
          of the candidates seriatim according to merit taking into
          consideration the total marks obtained by the candidates
          as per the qualifying standards fixed for the written
B         examination and viva-voce and personality test and shall
          declare a list of qualified candidates accordingly."

                                                  (emphasis added)

  At the end of the Recruitment Rules there was an Appendix in
C two parts. Part l contained the details concerning the written
  examination which would consist of five papers with an
  aggregate of 600 marks; part II provided that there would be a
  viva voce and personality test of 75 marks.

0       11. After the Recruitment Rules were framed and notified,
  the Commission on October 17, 2008 issued an advertisement
  inviting applications for filling up 242 posts of Assistant Public
  Prosecutor (Class II). Of the 242 posts available, 122 were to
  be filled up on open merits and the remaining was reserved
E for the different reserved categories. Under the marginal
  heading, "Particulars of Examination", it was stated that the
  examination would consist of two parts, i.e., written (objective
  test) and oral interview. The question paper of written
  examination (Part I) would be of 300 marks. In connection with
F the second part of the examination relating to the oral interview
  it was stated as follows:

          "PART- II Oral Interview- 30 Marks

          The candidate obtains minimum 105 marks in the written
G         examination i.e. as decided by the Commission, and the
          candidate who fulfils the educations qualifications, age,
          experience, etc., as mentioned in the advertisement shall
          be called for the oral interview in exact numbers and there
          shall be 30 marks for the oral interview. The final result of
H
   BAROT VIJAYKUMAR BALAKRISHNA v. MODH                       163
   VINAYKUMAR DASRATHLAL [AFTAB ALAM, J.]
    this examination shall be published as per the recruitment        A
    rules.

    The examination is of objective aptitude type, the provision
    of re-checking is not adopted. The final result of the
    examination shall be furnished on the basis of the total          8
    marks obtained in written as well as oral examination/
    interview ....

     12. Two things are to be seen from the advertisement. One,
though in the Recruitment Rules, 600 marks were allotted for
the written examination and 75 for the viva voce, in the              C
advertisement the written examination was given 300 and viva
voce 30 marks. The second, though the minimum qualifying
mark of 105 out of 300 was fixed for the written examination,
no qualifying mark was fixed separately for the viva voce as
required by rule 12 (3) of the Recruitment Rules. Nevertheless,       D
there was a broad and general stipulation that, "the final result
of this examination shall be published as per the recruitment
rules".

     13. The first discrepancy in regard to the allotment of marks    E
to the written and oral tests respectively, though not quite vital,
was rectified by the notification dated October 24, 2008, issued
by the State Government, urider the proviso to Article 309 of
the Constitution. By this notification, rule 19 was added at the
end of the Recruitment Rules which reads as under:
                                                                      F
     "19. Notwithstanding anything contained in these rules, the
     competitive examination, held by the Commission
     pursuant to the advertisement issued during the year 2008
     for the recruitment to the post specified in rule 3, shall be
     the multiple choice objective type written examination for       G
     300 marks from the subjects mentioned in Papers I, II, Ill,
     IV and V in Part I of the Appendix,

     Provided that

     (i) For papers I and II of the Gujarati and English in Part I    H
    164       SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A         of the Appendix respectively except grammar, all other
          topics be deemed as excluded.

          (ii) In Part II Viva-voce and Personality Test, the maximum
          of 75 marks, shall be read as 30 marks and
B         (iii) The provisions of rules 12, 13, 14 and 16 shall apply
          mutatis mutandis to such competitive examination"

                                                    (emphasis added)

c         14. The written test was held by the Commission on
    January 11, 2009 and its result was published on March 20,
    2009 by giving out the roll numbers (and not the names) of the
    qualifying candidates. Approximately 5,550 candidates sat for
    the written examination out of which 790 candidates were short-
D   listed for being called for the oral interview. After the publication
    of the result of the written test the marks obtained by the short-
    listed candidates were kept in a sealed cover.

         15. At this stage, while preparations were underway for
    holding the viva voce of the short-listed candidates, in the
E   meeting held on April 22, 2009, it was decided that in terms of
    rule 12(3) of the Recruitment Rules, the Commission was
    required to decide the minimum qualifying marks for the viva
    voce. Accordingly, on April 23, 2009, the Secretary to the
    Commission submitted the proposal together with a copy of the
F   Rules for order of the Commission and on the same day the
    Commission took the decision fixing 10 out of 30 as the
    minimum qualifying mark for the viva voce. The proceedings
    of the Commission dated April 23, 2009 read as follows:

          "The Commission has taken following decision after
G
          discussion.

               ·The Commission shall decide qualifying marks to be
          obtained by the candidate in interview under rule 12(3) of
          Recruitment (Examination) Rule$ (Page No.5/C) for this
H         post. Accordingly, the Commission is supposed to decide
BAROT VIJAYKUMAR BALAKRISHNA v. MODH                     165
VINAYKUMAR DASRATHLAL [AFTAB ALAM, J.]
minimum qualifying marks for considering the candidate          A
successful, in interview. Hehce, after careful consideration
the Commission decides that to get out of the maximum
30 marks of the interview, 10 marks as minimum qualifying
marks.
                                                                B
       The intimation of this decision may be given in time,
 to every candidate before they appear in interview. For this
 purpose the Commission gives its approval for procedure
 to be followed as per suggestion made in paragraph No.3
 shown against- on previous page. Further, this decision        C
 may be displayed on notice board in such a proper way
 that all the concerned persons may get intimated. It may
 please be noted that it may get published tomorrow.
 Sd/- Member               Sd/- Chairman
 [Shree Variya]            (Shree Bhavsar]                      D
 23.4.09                   23.4.09
                                             Sd/- Secretary
                                                    23.4.09
                                                   J.S./D.S.
                                         Sd/- (Jt.Secretary)    E
                                                    24.4.09
       The details to be displayed on Notice board as well
 as taken in to register in consonance with the above
 decision is submitted for approval.

 1.    Following details may be displayed on notice board.      F

       As per rule 12(3), the Commission has decided the
 minimum qualifying 10 marks out of 30, for the candidate
 appearing in interview (Viva-Voce) of Assistant Public
 Prosecutor Class-II. The candidate getting less marks than     G
 the this may not be eligible for selection. Which may be
 please noted.

       Make a note in the register as below, in which
                                                                H
    166        SUPREME COURT REPORTS                [2011] 7 S.C.R.


A         signatures of the candidates are being taken at the time
          of interview."

          16. Here it needs to be clarified that normally the Gujarat
    Public Service Commission consists of.a Chairperson and four
    members but at that time the positions of three members were
8
    vacant and only a Chairman and a member comprised the
    Commission. Hence, the proceedings are shown to have been
    signed by the Chairman and one member.

          17. In accordance with the Commission's direction, the
C decision fixing 10 out of 30 marks· as the minimum qualifying
  mark for the viva voce was put up on the notice board. Further,
  each candidate was individually intimated and was made to
  sign a declaration/consent form before going for the oral test.
  The consent form bore the following declaration under which
D the candidates were required to put their signatures:

          "Under recruitment rules 12(3) the commission has
          prescribed 10 qualifying marks to be obtained by
          candidates out of 30 in viva-voce test for appointment to
          the post of Assistant Public Prosecutor (Class -II) and it
E
          is to be noted that the candidates who will secure less than
          10 marks will not be eligible for recruitment to the post
          of Assistant Public Prosecutor.·

                                                  (emphasis added)
F
          18. The forms signed by each of the candidates are on
    record.

       19. The viva voce of all the 790 short listed candidates was
  held from April 27, 2009 to July 9, 2009. On July 15, 2009,
G marks of the written test of the candidates who were called for
  interview were taken out of the sealed cover and on July 16,
  the Commission declared the final result as per Rule 14(1).

       20. In the facts as stated above, we are completely unable
H to see any illegality in the selection process much less any bias
   BAROT VIJAYKUMAR BALAKRISHNA v. MODH                       167
   VINAYKUMAR DASRATHLAL [AFTAB ALAM, J.]
or malice of any kind. But on behalf of the writ petitioners-         A
respondents, it is contended that it is a clear case of bias. It is
alleged that in order to bring in its favoured candidates the
Commission found it necessary to exclude a sufficient number
of meritorious candidates by any ruse and the minimum
qualifying mark for viva voce was introduced at the last minute       B
only for that intent and purpose. The respondents pointed out
that the application of the minimum qualifying mark separately
for the viva voce excluded some candidates who would have
been selected only on the strength of their marks in the written
test even though they were given nil mark in the viva voce. The       c
respondents cited several kinds of figures before the High Court
to high light the "anomalies" resulting from the introduction of
the minimum qualifying mark for the viva voce. It was pointed
out that 81 out of the 203 selected candidates had got the
minimum qualifying mark in the viva voce, i.e., 10 out of the total
                                                                      0
of 30; 190 candidates out of 790 called for interview got just 8
or 9 marks in the viva voce and were, thus, excluded from the
final select list; 503 candidates out of the 790 called for
interview got less than the qualifying mark in the viva voce. One
or two more examples of a similar nature were also cited by
the respondents. The Division Be rich of the High Court appears       E
to have attached considerable importance to these so called
anomalies and its judgment seems to have been influenced by
these results.

     21. We are unable to accept or even to follow the allegation     F
based on the figures as cited above. It is necessary to bear in
mind that no objection can be taken to the fixing of the cut off
mark separately for the viva voce as that is the mandate of the
statutory rules governing the recruitment. What alone can be
objected to is the omission to specify the cut off mark for viva      G
voce in the advertisement and fixing it later on. But we fail to
see any connection between the "anomalies" and the fact that
the cut off mark for viva voce was fixed at a later stage, though
before the commencement of the interviews and with due
intimation to all the candidates.
                                                                      H
    168      SUPREME COURT REPORTS               [2011] 7 S.C.R.

A       22. Further, as noted above the marks obtained by the
  short listed candidates in the written test were kept in a sealed
  cover and those were taken out only after the oral interview of
  all the candidates was over. At the time a candidate appeared
  for the interview the members of the interview board had no
B means to know the mark obtained by him/her in the written test.
  In such a situation we don't see how it could be possible for
  the interview board to purposefully exclude a candidate by giving
  less than the minimum qualifying mark for the viva voce even
  though he/she might have been selected on the basis of the
c mark obtained in the written test alone.
        23. When playing around with numbers one is quite likely
  to come up with some figures that might appear unusual and
  unexpected but that alone will not make out a case of bias or
  legal malafide (See the decision by a bench of four judges of
D this Court in Ashok Kumar Yadav v. State of Haryana, (1985)
  4 sec 417, paragraph 21). In the facts of the case as noted
  above we are satisfied that the examples cited by the
  respondents do not show that there was any arbitrariness or
  play of bias in giving marks to the candidates in the viva voce
E or that there was any flaw in the selection process making it
  liable to be struck down.

        24. Mr. Viswanathan, senior advocate, appearing for the
  respondents submitted that the Advocate General had
F undertaken before the High Court that the qualifying marks for
  both the written test and the viva voce would be published in
  the advertisement. He further submitted that sub-rule (2) of rule
  12 provided for fixing the minimum qualifying mark for the
  written test in the same way as sub-rule (3) provided for fixing
G the minimum qualifying mark for the viva voce. He argued that
  the provisions of sub-rules (2) and (3) of rule 12 could not be
  read and given effect to differently and when the minimum
  qualifying mark for the written test was specified in the
  advertisement there was no reason for not indicating the
  minimum qualifying mark for the viva voce in the advertisement
H itself.
   BAROT VIJAYKUMAR BALAKRISHNA v. MODH                    169
   VINAYKUMAR DASRATHLAL [AFTAB ALAM, J.]
     25. The grievance of Mr. Viswanathan cannot be said to A
be wholly without substance. It is true that the better and the
more proper way to give effect to the provision of rule 12 (3) of
the Recruitment Rules was to specify the minimum qualifying
mark for the viva voce also in the advertisement itself. But that
was not done. The question is what would be the consequence B
of the omission and was it open to the Commission to rectify
the error by fixing the minimum qualifying mark for the viva voce
later on and giving intimation of its decision to each of the
candidates appearing for the oral interview before the beginning
of the test.                                                      ·c

     26. The Division Bench of the High Court has held that the
introduction of the minimum qualifying mark for the viva' voce
at the later stage in the selection process was not permissible
and it completely vitiated the selection process. Mr.
Viswanathan strongly supports the view taken by the High Court. D
In support of its view, the Division Bench of the High Court, has
placed reliance on two decisions of this Court, one in K.
Manjusree v. State of Andhra Pradesh and another, (2008) 3
SCC 512 and the other Hemani Malhotra v. High Court of
Delhi, (2008) 7 SCC 11. Mr. Viswanathan also cited before E
us the decision in K. Manjusree and invited our attention
particularly to the following passage in paragraph 33 of the
judgment:

    "33 ..... Where the rules do not prescribe any procedure,     F
    the Selection Committee may also prescribe the minimum
    marks, as stated above. But if the Selection Committee
    wants to prescribe minimum marks for interview, it should
    do so before the commencement of selection process. If
    the Selection Committee prescribed minimum marks only         G
    for the written ex,amination, 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
                                                                  H
    170        SUPREME COURT REPORTS               (2011] 7 S.C.R.


A         be illegal is changing the criteria after completion of the
          selection process, when the entire selection proceeded on
          the basis that there will be no minimum marks for the
          interview."

         27. In our view, both the decisions relied upon in support
8
    of the respondents' case are completely distinguishable and
    have no application to the facts of this case. K. Manjusree was
    a case of selection and appointment to the posts of District &
    Sessions Judge (Grade II) in the Andhra Pradesh Higher
C   Judicial Service. The selection and appointment to the post of
    District & Sessions Judge was governed by the resolutions of
    the High Court and the resolution dated November 30, 2004
    decided the method and manner of selection. It resolved to
    conduct the written examination for the candidates for 75 marks
    and oral examination for 25 marks. It also resolved that the
D   minimum qualifying marks for the O.C., B.C., S.C. and S.T.
    candidates would be as prescribed earlier. Following the
    written examination, the qualified candidates were called for
    interview before a committee of five judges. After the interview,
    the select committee of five judges prepared a merit list on the
E   basis of the aggregate of marks obtained by each of the
    candidates in the written test and the oral interview. At that
    stage, the select committee did not apply any cut off mark for
    the viva voce. The list prepared by the select committee was
    approved by the administrative committee and it finally came
F   before the Full Court of the High Court. The Full Court decided
    to have the matter reviewed by a committee of two judges
    constituted by the Chief Justice of the High Court. It was at that
    stage that the committee of two judges decided that there
    should have been a minimum qualifying mark for the oral
G   interview as well, in the same ratio as prescribed for the written
    test. It, accordingly, decided that only those candidates who
    secured the minimum of 12.5 out of 25 (for the open category),
    10 marks (for B.C, candidates), and 8.75 marks (for SC and
    ST candidates) would be considered as having succeeded in
H   the interview. The decision of the committee of two judges was
   BAROT VIJAYKUMAR BALAKRISHNA v. MODH                       171
   VINAYKUMAR DASRATHLAL [AFTAB ALAM, J.]
approved by the Full Court and consequently, the earlier list        A
prepared by the select committee and approved by the
administrative committee was revised and the final
recommendation for appointment was made by the High Court
on the basis of the revised merit list. It was in those facts that
this Court held that the introduction of the cut off mark for the    B
viva voce after the oral interviews were over amounted to
changing the rules of the game in mid-play and was not
permissible in law. The passage from paragraph 33 of the
judgment relied upon by the respondents must be understood
in the facts of the case.                                            c
      28. The decision in Hemani Malhotra is equally
inapplicable to the facts ofthe case. Hemani Malhotra was a
case of selection and· appointment to the vacant posts in the
Delhi Higher Judicial Service and those appointments too were
governed by the administrative resolutions of the High Court. D
For filling up the posts, the Registrar General of the High Court
issued an advertisement that laid down that the minimum
qualifying mark in the written examination would be 55% for
general candidates and 50% .for scheduled castes and
scheduled tribes candidates. In the advertisement there was no E
indication at all about any cut off mark for the oral interview. After
the written examination, no result was published giving out the
names or roll numbers of the qualified candidates but the
successful candidates were called to appear for the oral
interview individually through letters. After the date fixed for oral F
interview was postponed three or four times the selection
committee of the High Court resolved that it was desirable to
prescribe a minimum mark for the viva voce and referred the
matter to the Full Court. The Full Court accepted the suggestion
made by the select committee and resolved that for recruitment G
to the Delhi Higher Judicial Service from the Bar the minimum
qualifying mark in the viva voce will be 55% for general
candidates and 50% for scheduled castes and scheduled tribes
candidates. After the decision, interviews were held but
significantly the candidates were kept in dark about the decision H
    172        SUPREME COURT REPORTS                [2011) 7 S.C.R.


A fixing the cut off mark for the viva voce. The High Court
  prepared the select list applying the cut off mark fixed for viva
  voce but the candidates who appeared for the oral interviews
  still did not know why they were not selected despite getting
  higher marks. It was only through applications made under the
B Right to Information Act that some of the unselected candidates
  were able to gather that their non-selection was on account of
  their failure to secure the cut off mark in the viva voce and then
  the selection was challenged before the Court. It is evident that
  the facts of the case in hand are entirely different and the
c decision in Hemani Malhotra has no application to this case.
       29. Mr. Viswanathan also relied upon the decision of this
  Court in Ramesh Kumar v. High Court of Delhi and another,
  (2010) 3 SCC 104.This decision also has no relevance to the
  facts of the present case. In Ramesh Kumar, what this Court
D said is that for appointment to the judicial services, in the
  absence of any contrary provision in the relevant rules Delhi
  High Court should not have fixed any minimum qualifying marks
  for the viva voce because this Cour' had accepted Justice
  Shetty Commission's report which had prescribed not to have
E any cut off mark for interview. Actually what is said in paragraph
  15 of the judgment in Ramesh Kumar demolishes the case of
  the respondents:

          "15. Thus, the law on the issue can be summarised to the
F         effect that in case the statutory rules prescribe a
          particular mode of selection, it has to be given strict
          adherence accordingly. In case, no procedure is
          prescribed by the rules and there is no other impediment
          in law, the competent authority while laying down the norms
G         for selection may prescribe for the tests and further specify
          the minimum benchmarks for written test as well as for viva
          voce.

        30. Having, thus, made the legal position clear, the
    judgment in paragraph 16 went on to say:
H
   BAROT VIJAYKUMAR BALAKRISHNA v. MODH                     173
   VINAYKUMAR DASRATHLAL [AFTAB ALAM, J.]
    "16. In the instant case, the Rules do not provide for any      A
    particular procedure/criteria for holding the tests rather it
    enables the High Court to prescribe the criteria. This Court
    in A// India Judges' Assn. (3) v. Union of India, [(2002) 4
    SCC 247], accepted Justice Shetty Commission's Report
    in this regard which had prescribed for not having              B
    minimum marks for interview. The Court further explained
    that to give effect to the said jµdgment, the existing
    statutory rules may be amended. However, till the
    amendment is carried out, the vacancies shall be filled as
    per the existing statutory rules. A similar view has been       c
    reiterated by this Court while dealing with the appointment
    of Judicial Officers in Syed T.A. Naqshbandi v. State of
    J&K [(2003) 9 SCC 592) and Malik Mazhar Sultan (3) v.
    U.P. Publjc Service Commission [(2008) 17 SCC 703].
    We have also accepted the said settled legal proposition        D
    while deciding the connected cases i.e. Rakhi Ray v. High
    Court of Delhi [(2010) 2 SCC 637] vide judgment and
    order of this date. It has been clarified in Rakhi Ray that
    where statutory rules do not deal with a particular subject/
    issue, so far as the appointment of the Judicial Officers is    E
    concerned, directions issued by this Court would have
    binding effect."

     31. Now coming back to the facts of the case in hand,
though the rules framed under Article 309 of the Constitution
governing the selection process mandated that there would be        F
minimum qualifying marks each for the written test and the oral
interview, the cut off mark for viva voce was not specified in
the advertisement. In view of the omission, there were only two
courses open. One, to carry on with the selection process and
to complete it without fixing any cut off mark for the viva voce    G
and to prepare the select list on the basis of the aggregate of
marks obtained by the candidates in the written test and the
viva voce. That would have been clearly wrong and in violation
of the statutory rule governing the selection. The other course
was to fix the cut off mark for the viva voce and to notify the     H
    174       SUPREME COURT REPORTS                [2011] 7 S.C.R.


A   candidates called for interview about it. This is the course that
    the Commission followed. This was in compliance with the rules
    and·it did not cause any prejudice to any candidate either. We,
    thus, see no illegality at all in the selection process.

8      32. In light of the discussions made above we find that the
  Division Bench of the High Court took a wrong view of the
  matter and its judgment and order are quite unsustainable. We,
  accordingly, set aside the impugned judgment and dismiss all
  the writ petitions filed by the respondents before the Gujarat
C High Court.

         33. In the result, the appeals are-allowed but with no order
    as to costs.

    R.P.                                          Appeals allowed.