YOGESH YADAVversusUNION OF INDIA & ORS.

                        [2013] 8 S.C.R. 194


A                        YOGESH YADAV
                                 v.
                      UNION OF INDIA & ORS.
                  (Civil Appeal No. 6799 of 2013)

                        AUGUST 16, 2013
B
              [ANIL R. DAVE AND A.K. SIKRI, JJ.]

        Selection - Benchmark - Fixation of, for appointment to
  Post of Deputy Director (Law) in the Other Backward Class
C (OBC Category) in the office of Competition Commission of
  India (CCI) - Challenge to - Held: The entire selection was
  undertaken in accordance with the criterion laid down at the
  time of recruitment process - Aftet conducting the interview,
  marks of the written test and viva voce were to be added -
o However, since benchmark was not stipulated for giving the
  appointment, a decision was taken to give appointments only
  to those persons who secured 70% marks or above marks in
  the unreserved category and 65% or above marks in the
  reserved category - In absence of any rule on this aspect in
E the first instance, this did not amount to changing the "rules
  of the game" - Fixation of such a benchmark in order to have
  meritorious persons for those posts, was legitimate giving a
  demarcating choice to the employer - There was no change
  in the criteria of selection which remained of 80 marks for
F written test and 20 marks for interview without any subsequent
  introduction of minimum cut off marks in the interview - It was
  short listing which was done by fixing the benchmark, to recruit
  best candidates on rational and reasonable basis - That was
  clearly permissible under the law.

G     Appointments to vacancies in the post of Deputy
  Director (Law) in the Other Backward Class (OBC
  Category) were to be made in the office of Competition
  Commission of India (CCI). CCI issued notification
  through public notice inviting applications for such post.
H                             194
         YOGESH YADAV v. UNION OF INDIA                   195


The three appellants (who belonged to the OBC category)          A
were amongst the candidates who appeared in the
written test. After qualifying the written test, they also
faced the interview. However, their names did not appear
in the list of candidates finally selected.
                                                                 B
    On obtaining the information from the respondents
under the Right to Information Act 2005, the appellants
learnt that the respondents had fixed the benchmark of
70 marks for the General Category and 65 marks for the
Reserved Category candidates and since the total marks
obtained by all these appellants were less than 65, that         C
was the reason for their non-selection. This fixation of
benchmark agitated the appellants as according to them
it amounted to changing the selection procedure mid-
way, which is illegal.
                                                                 D
      The appellants filed writ petition contending that their
non-selection was the result of alteration of the
prescribed mode of selection mid-way i.e. after the
initiation of recruitment process which was impermissible.
The appellants contended that the selection criteria was         E
changed arbitrarily that too after the advertisement and
the law did not permit the respondents to change the
rules of the game after the game had started. The precise
contention in this behalf was that the benchmark which
was fixed at 70 and 65 marks or above in the General and         F
Reserved category respectively for the purposes of
selection was not mentioned earlier i.e. before the start
of selection process, either in the advertisement or
otherwise. The High Court dismissed the writ petition,
holding that fixation of the benchmark was legal and             G
justified, and therefore the instant appeal.

    The question which therefore arose for consideration
before this Court was whether fixation of benchmark
amounted to change in the criteria of selection in the
                                                                 H
    196      SUPREME COURT REPORTS            [2013] 8 S.C.R.


A midstream when there was no such stipulation in that
  regard in the advertisement.

          Dismissing the appeals, the Court

       HELD: 1.1. In the instant case, the instructions to the
B examinees provided that written test will carry 80% marks
  and 20% marks were assigned for the interview. It was
  also provided that candidates who secured minimum 50%
  marks in the general category and minimum 40% marks
  in the reserved categories in the written test would qualify
C for the interview. Entire selection was undertaken in
  accordance with the aforesaid criterion which was laid
  down at the time of recruitment process. After conducting
  the interview, marks of the written test and viva voce were
  to be added. However, since benchmark was not
D stipulated for giving the appointment, in the instant case
  a decision was taken to give appointments only to those
  persons who have secured 70% marks or above marks
  in the unreserved category and 65% or above marks in
  the reserved category. In the absence of any rule on this
E aspect in the first instance, this does not amount to
  changing the "rules of the game". The High Court rightly
  held that it is not a situation where securing of minimum
  marks was introduced which was not stipulated in the
  advertisement, standard was fixed for the purpose of
F selection. Therefore, it is not a case of changing the rules
  of game. On the contrary in the instant case a decision
  was taken to give appointment to only those who fulfilled
   the benchmark prescribed. Fixation of such a benchmark
   is permissible in law. [Para 14] [204-G-H; 205-A-D]

G        1.2. The decision taken in the instant case amounts
    to short listing of candidates for the purpose of selection/
    appointment which is always permissible. The intention
    of the CCI was to get more meritorious candidates. There
    was no change of norm or procedure and no mandate
H
         YOGESH YADAV v. UNION OF INDIA                 197


  was fixed that a candidate should secure minimum marks       A
  in the interview. In order to have meritorious persons for
  those posts, fixation of minimum 65% marks for selecting
  a person from the OBC category and minimum 70% for
  general category, was legitimate giving a demarcating
  choice to the employer. There is no change in the criteria   B
  of selection which remained of 80 marks for written test
  and 20 marks for interview without any subsequent
  introduction of minimum cut off marks in the interview. It
 was short listing which was done by fixing the
  benchmark, to recruit best candidates on rational and        c
. reasonable basis. That is clearly permissible under the
  law. [Paras 15, 16 and 17] [205-E; 206-F-G; 207-D-F]

    Himani Malhotra vs. High Court of Delhi (2008) 7 SCC
11: 2008 (5) SCR1066 - distinguished.
                                                               D
    State of Haryana vs. Subash Chander Marwaha & Ors.
(1974) 3 SCC 220: 1974 (1) SCR 165 and M.P. Public
Service Commission vs. Navnit Kumar Potdar & Anr. (1994)
6 sec 293: 1994 (3) Suppl. SCR 665 - relied on.
                                                               E
     Lila Dhar vs. State of Rajasthan (1981) 4 SCC 159: 1982
(1) SCR 320 and K.Manjusree vs. State of A.P. (2008) 3 SCC
512: 2008 (2) SCR 1025 - referred to.

                     Case Law Reference:
                                                               F
   2008 (5) SCR 1066         distinguished        Para 12
   1982 (1) SCR 320          referred to          Para 12
   2008 (2) SCR 1025         referred to          Para 12
   1974 (1) SCR 165          relied on            Para 15      G

   1994 (3) Suppl. SCR 665 relied on              Para 17
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6799 of 2013.
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    198       SUPREME COURT REPORTS              [2013] 8 S.C.R.


A       From the Judgment and Order dated 05.08.2011 of the
    High Court of Delhi at New Delhi in LPA No. 561 of 2011.

                                  WITH

    C.A. No. 6800 & 6801 of 2013.
B
        Jayant Bhushan, Himanshu Shekhar, Chandan Kumar Rai,
    Vibhu Shanker Mishra, Harish Pandey, Shubhangi Tuli for the
    Appellant.

C       Parag Tripathi, B.K. Satija, Mahima Gupta, Sushma Suri,
    Pankaj Seth, Manjeet Chawla, A.K. Shrivastava, Gaurav
    Sharma, Rajeev Gupta, Anurag Singh, Avni Singh, Balbir
    Singh, Chandra Prakash, Rupender Singh for the Respondents.

          The Judgment of the Court was delivered by
D
          A.K. SIKRI, J. 1. Leave granted.

       2. Counsel for the parties were heard at length on the issue
  involved in these cases. We now proceed to decide the same
E by this order.

       3. Matter pertains to appointment to the post of Deputy
  Director (Law) in the Other Backward Class (OBC Category).
  Appointments to the vacancies in the aforesaid post were to
  be made in the office of Competition Commission of India
F (CCI). The three appellants in these three appeals were also
  the candidates who appeared in the written test. After qualifying
  the written test, they also faced the interview. However, their
  names did not appear in the list of candidates finally selected.
  According to the appellants, their non-selection was the result
G of altering the prescribed mode of selection mid-way i.e. after
  the initiation of recruitment process which was impermissible.
  This contention has not found favour with either the learned
  Single Judge in the Writ Petitions filed by them or the Division
  Bench of the High Court in the appeals filed by them challenging
H the order of the learned Single Judge. Bone of contention,
                                                                             I.




 YOGESH YADAV v. UNION OF INDIA [A.K. SIKRI, J.] 199


before us also, remains the same. Therefore, the issue which             A
needs to be decided is as to whether there was any change in
the mode of selection after the process of selection had started.

    4. Seminal facts which are necessitated to understand the
controversy are recapitulated herein below.
                                                                         B
     5. CCI had issued the notification through public notice
dated 11th November, 2009 inviting applications for various
posts. We are concerned with the post of Deputy Director (Law)
for which 13 vacancies were notified - 9 were in General
category, 1 in SC Category and 3 posts were reserved for OBC             c
category. Clause 7 of the notification stipulated the mode of
selection in the following manner:

     "7. Mode of Selection

            All the applications received by the due date will be        D
     screened with reference to the minimum qualification
     criteria. From amongst the eligible candidates, suitable
     candidates will be short listed through a transparent
     mechanism and the short listed candidates will be called
     for interview before final selection. Mere fulfilling of            E
     minimum qualifications by itself would not entitle any
     applicant for being called for interview."

      6. The eligibility I qualification /experience required for this
post was also provided in the advertisement. It is undisputed            F
that the appellants fulfilled the eligibility condition, being holder
of degree of Bachelor of Law (Professional) as well as 3 years'
experience in the relevant field including in the Corporate
Sector. Written test for this post was held on 14th February,
2010 for short listing of candidates for interview. Admit card           G
was also issued to the appellants for appearing in the written
test along .with the detailed instructions including the scheme
of examination. Paragraphs 4 and 9 of the Instruction which
were given to the examinees/candidates are relevant for our
purposes and therefore we reproduce the same hereunder:
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    200       SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A               "4. The selection to all the positions advertised will
          be based on a written test followed by an interview. The
          written test will carry 80% of the marks and interview will
          have 20% of the marks. The written test will be in two parts.
          The first part will be based on multiple choice questions
B         for 50 marks. There is no negative marking in this multiple
          choice questions. The second part carrying 30 marks will
          be distributed to the descriptive questions on the subject
          of your specialization within the broad outline of the subject
          of specialization as indicated in the advertisement.
c
                 9. Candidates who do not secure 50% of the marks
          in the test will not be called for the interview. However, for
          candidates belonging to the reserved categories, the cut
D         off marks will be 40% of the total marks."

       7. Written examination was of 80 marks and the appellants
  secured more than 50% marks therein. They were called for
  the interview which was held on 19th March 2010 and the result
E of which was published on the website of the CCI. Finally, only
  5 candidates, that too from the General category, were
  selected. Nobody from the OBC category, to which category
  the appellants belonged, emerged successful. On obtaining the
  information from the respondents under the Right to Information
  Act 2005, the appellant in CA_/2013 (@SLP(C) No. 34427
F of 2011) came to know that he had secured only 2 marks out
  of 20 marks in the interview. In this manner, total marks secured
  by him were 53 out of 100 marks. He also learnt that the
  respondents had fixed the benchmark of 70 marks for the
  General Category and 65 marks for the Reserved Category
G candidates. Since the total marks obtained by all these
  appellants were less than 65, that was the reason for their non
  selection. It is this fixation of benchmark which has agitated the
  appellants and according to them it amounts to changing the
  selection procedure mid-way, which is illegal.
H
YOGESH YADAV v. UNION OF INDIA [A.K. SIKRI, J.] 201


      8. The appellants approached the High Court of Delhi by        A
filing a Writ Petitions challenging their non- selection primarily
on the ground that the selection criteria was changed arbitrarily
that too after the advertisement and the law did not permit the
respondents to change the rules of the game after the game
had started. The precise contention in this behalf was that the      B
benchmark which was fixed at 70 and 65 marks or above in
the General and Reserved category respectively for the
purposes of selection was not mentioned earlier i.e. before the
start of selection process, either in the advertisement or
~eMise.                                                              c
     9. The Writ petitions were contested by the respondents.
In the counter affidavit filed by the CCI, it was explained that
there was an overwhelming response received from the
candidates for selection to the aforesaid post and having
regard to the large number of applications received, the CCI         D
decided to undertake the selection to all posts notified in the
advertisement on the basis of written test followed by interview
and accordingly it was determined that written test would be
for 80 marks while 20 marks were attributed to interview.
Further, candidates who secured minimum of 50 marks in the           E
written test in the General category and minimum of 40 marks
in the reserved category were called for interview in the ratio
of three times of the number of vacancies where the number
of vacancies were more than 10 and 5 times of the number of
the vacancies for less than the 10. The marks obtained in the        F
written test were not disclosed to the interview committee and
the committee independently and without being influenced by
the marks obtained in the written test adjudged the candidates
on the basis of Viva Voce test and awarded the marks. The
marks of the written test, which were kept in the sealed cover,      G
were opened after the marks given to candidates in the
interview by the interview board and tabulated merit list was
prepared accordingly. The CCI, keeping in view the nature and
purpose of the post, decided to fix the percentage for final
selection were 70 marks out of 100 for unreserved Category           H
    202      SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A and minimum 65 marks out of 100 for reserved category for
  professional categories in which category the post of Deputy
  Director (Law) falls. It was argued that such a course of action
  was permissible and it was not a case where the mode of
  selection, at any time was changed and in so far as fixation of
B benchmark is concerned that was prerogative of the employer.

        10. The learned Single Judge of the High Court accepted
  the plea of the respondents as he did not perceive this to be
  the change in criteria in the selection procedure, holding that
C fixation of the benchmark was legal and justified. As pointed
  out above, Letter Patent Appeals filed by the appellants against
  the learned Single Judge have also met the same fate.

      11. In the aforesaid backdrop, the question that falls for
  consideration is as to whether fixation of benchmark would
D amount to change in the criteria of selection in the midstream
  when there was no such stipulation in that regard in the
  advertisement.

        12. Mr. Jayant Bhushan, the learned senior counsel
E appearing for one of the appellants submitted that the case is
  squarely covered by the ratio of judgment of this Court in Himani
  Malhotra vs. High Court of Delhi (2008) 7 SCC 11. That case
  pertained to recruitment to the Higher Judicial Service in Delhi.
  The mode of selection was written test and viva voce. 250
F marks were assigned for written test and 750 marks prescribed
  for viva voce test. When the advertisement was given there was
  no stipulation prescribing minimum marks/cut off marks at viva
  voce test after the written test was held. The persons who
  qualified the written test were called for interview. Interview was,
  however, postponed by the interview committee and it felt that
G it was desirable to prescribe minimum marks for the viva voce
  test as well. The matter was placed before the Full Court and
  Full Court resolved to fix minimum qualifying marks in viva voce
  which were 55% for general category, 50% for SC/ST
  candidates. After this change was effected in the criteria
H thereby prescribing fixation of minimum qualifying marks, the
  YOGESH YADAV v. UNION OF INDIA [A.K. SIKRI, J.]             203


  interviews were held. The petitioners in that case were not         A
  selected as they secured less than 55 % marks. Those two
  petitioners filed the Writ Petition submitting that prescribing
  minimum cut off marks in the viva voce test, after the selection
  process had started, when there was no such stipulation at the
  time of initiation of recruitment process, was unwarranted and      B
  impermissible. The Court, taking notice of its earlier judgments
  in Lila Dhar vs. State of Rajasthan (1981) 4 SCC 159 and
- K.Manjusree vs. State of A.P. (2008) 3 SCC 512 held that
  when the previous procedure prescribing minimum marks was
  not permissible at all after the written test was conducted, the    c
  ratio of the case is summed up in paragraph 15 of the
  Judgment, as under:

       "15. There is no manner of doubt that the authority making
       rules regulating the selection can prescribe by rules the
       minimum marks both for written examination and viva            D
       voce, but if minimum marks are not prescribed for viva
       voce before the commencement of selection process, the
       authority concerned, cannot either during the selection
       process or after the selection process add an additional
       requiremenUqualification that the candidate should also        E
       secure minimum marks in the interview. Therefore, this
       Court is of the opinion that prescription of minimum marks
       by the respondent at viva voce test was illegal."

       13. This very argument based on the aforesaid judgment         F
  was taken in the LPAs before the High Court as well. However,
  the High Court took the view that the aforesaid judgment was
  not applicable in the instant case as the factual scenario was
  altogether different. Since we are agreeing with the view of the
  High Court, it would be apposite to take notice of the relevant     G
  discussion on this aspect:

              "18. From the aforesaid pronouncement of law, it is
       vivid that an amended rule cannot affect the right of a
       candidate who has qualified as per the terms stipulated
       in the advertisement and is entitled to claim a selection in   H
    204       SUPREME COURT REPORTS                  [2013) 8 S.C.R.


A         accordance with the rules as they existed on the date of
          the advertisement; that the selection can be regulated by
          stipulating a provision in the rule or laying a postulate in
          the advertisement for obtaining minimum marks are not
          prescribed for viva voce before the commencement of the
B         selection process, the authority, during the selection
          process or after the selection process, cannot add an
          additional requirement/qualification that the candidate
          should also secure minimum marks in the interview; that
          the norms or rules as existing on the date when the
c         process of selection begins will control such selection and
          that revisiting the merit list by adopting a minimum
          percentage of marks for interview is impermissible.

                 19. The factual scenario in the present case has a
          different backdrop. The advertisement stipulated that the
D         short listed candidates would be called for interview before
          the final selection and mere fulfilling of minimum
          qualifications by itself would not entitle any applicant for
          being called for interview. Thereafter, in the instruction, the
          marks were divided. Regard being had to the level of the
E         post and the technical legal aspects which are required to
          be dealt with, a concise decision was taken to fix 65%
          marks for OBC category in toto, i.e., marks obtained in the
          written examination and marks secured in the interview. It
          is not a situation where securing of minimum marks was
F         introduced which was not stipulated in the advertisement.
          A standard was fixed for the purpose of selection."

        14. Instant is not a case where no minimum marks
  prescribed for viva voce and this is sought to be done after the
G written test. As noted above, the instructions to the examinees
  provided that written test will carry 80% marks and 20% marks
  were assigned for the interview. It was also provided that
  candidates who secured minimum 50% marks in the general
  category and minimum 40% marks in the reserved categories
  in the written test would qualify for the interview. Entire selection
H
YOGESH YADAV v. UNION OF INDIA [A.K. SIKRI, J.] 205


was undertaken in accordance with the aforesaid criierion            A
which was laid down at the time of recruitment process. After
conducting the interview, marks of the written test and viva voce
were to be added. However, since benchmark was not
stipulated for giving the appointment. What is done in the instant
case is that a decision is taken to give appointments only to        B
those persons who have secured 70% marks or above marks
in the unreserved category and 65% or above marks in the
reserved category. In the absence of any rule on this aspect in
the first instance, this does not amount to changing the "rules
of the game". The High Court has rightly held that it is not a       c
situation where securing of minimum marks was introduced
which was not stipulated in the advertisement, standard was
fixed for the purpose of selection. Therefore, it is not a case of
changing the rules of game. On the contrary in the instant case
a decision is taken to give appointment to only those who            0
fulfilled the benchmark prescribed. Fixation of such a
benchmark is permissible in law. This is an altogether different
situation not covered by Hemani Malhotra case.

      15. The decision taken in the instant case amounts to short
listing of candidates for the purpose of selection/appointment       E
which is always permissible. For this course of action of the
CCI, justification is found by the High Court noticing the
judgment of this Court in the State of Haryana vs. Subash
Chander Marwaha & Ors. (1974) 3 SCC 220. In that case,
Rule 8 of the Punjab Civil Service (Judicial Branch) Service         F
Rules was the subject matter of interpretation. This rule
stipulated consideration of candidates who secured 45%
marks in aggregate. Notwithstanding the same, the High Court
recommended the names of candidates who had secured 55%
marks and the Government accepted the same. However, later           G
on it changed its mind and High Court issued Mandamus
directing appointment to be given to those who had secured
45% and above marks instead of 55% marks. In appeal, the
judgment of the High Court was set aside holding as under:
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    206        SUPREME COURT REPORTS                [2013] 8 S.C.R.


A                 "It is contended that the State Government have
          acted arbitrarily in fixing 55 per cent as the minimum for
          selection and this is contrary to the rule referred to above.
          The argument has no force. Rule 8 is a step in the
          preparation of a list of eligible candidates with minimum
B         qualifications who may be considered for appointment. The
          list is prepared in order of merit. The one higher in rank is
          deemed to be more meritorious than the one who is lower
          in rank. It could never be said that one who tops the list is
          equal in merit to the one who is at the bottom of the list.
c         Except that they are all mentioned in one list, each one of
          them stands on a separate level of competence as
          compared with another. That is why Rule 1O(ii), Part C
          speaks of "selection for appointment". Even as there is no
          constraint on the State Government in respect of the
D         number of appointment to be made, there is no constraint
          on the State Government in respect of the number of
          appointments to be made, there is no constraint on the
          Government fixing a higher score of marks for the purpose
          of selection. In a case where appointments are made by
          selection from a number of eligible candidates it is open
E
          to the Government with a view to maintain high-standards
          of competence to fix a score which is much higher than
          the one required for mere eligibility."

       16. Another weighty reason given by the High Court in the
F instant case, while approving the aforesaid action of the CCI,
  is that the intention of the CCI was to get more meritorious
  candidates. There was no change of norm or procedure and
  no mandate was fixed that a candidate should secure minimum
  marks in the interview. In order to have meritorious persons for
G those posts, fixation of minimum 65% marks for selecting a
  person from the OBC category and minimum 70% for general
  category, was legitimate giving a demarcating choice to the
  employer. In the words of the High Court:

                "In the case at hand, as we perceive, the intention
H
YOGESH YADAV v. UNION OF INDIA [A.K. SIKRI, J.] 207


    of the Commission was to get more meritorious                   A
    candidates. There has been no change of norm or
    procedure. No mandate was fixed that a candidate should
    secure minimum marks in the interview. Obtaining of 65%
    marks was thought as a guidelines for selecting the
    candidate from the OBC category. The objective is to have       B
    the best hands in the field of law. According to us, fixation
    of such marks is legitimate and gives a demarcating
    choice to the employer. It has to be borne in mind that the
    requirement of the job in a Competition Commission
    demands a well structured selection process. Such a             c·
    selection would advance the cause of efficiency. Thus
    scrutinized, we do not perceive any error in the fixation of
    marks at 65% by the Commission which has been
    uniformly applied. The said action of the Commission
    cannot be treated to be illegal, irrational or illegitimate."
                                                                    D
     17. It is stated at the cost of repetition that there is no
change in the criteria of selection which remained of 80 marks
for written test and 20 marks for interview without any
subsequent introduction of minimum cut off marks in the
interview. It is the short listing which is done by fixing the      E
benchmark, to recruit best candidates on rational and
reasonable basis. That is clearly permissible under the
law.(M.P.Public Service Commission vs. Navnit Kumar Potdar
& Anr. (1994) 6 sec 293).
                                                                    F
    18. The result of the aforesaid discussion would be to
dismiss the appeals as bereft of any merit. No costs.
B.B.B.                                     Appeals dismissed.