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CASE NO.: Appeal (civil)  1313 of 2008

PETITIONER: K.Manjusree

RESPONDENT: State of A.P. & Anr.

DATE OF JUDGMENT: 15/02/2008

BENCH: CJI K. G. Balakrishnan,R. V. Raveendran & J. M. Panchal

JUDGMENT: J U D G M E N T (Arising out of SLP [C] No.18330/2006) With WP [C] Nos.51/2007 and 97/2007 & SLP [C] No.[CC Nos.7178-79/2007]

R.V. RAVEENDRAN, J.

             Leave granted in the special leave petition by K.Manjusree. The  selection to ten posts of District & Session Judges (Grade-II) in the Andhra  Pradesh State Higher Judicial Service in pursuance of the advertisement  dated 28.5.2004 is the subject matter of this appeal by special leave and writ  petitions.

2.      Selection and appointments to the post of District & Session Judges  (Grade II) are governed by the Andhra Pradesh State Higher Judicial Service  Rules 1958 (Rules for short). The said Rules provide that one-third of the  total number of permanent posts of District and Session Judges (Grade II)  should be filled by direct recruitment. It also prescribes the qualifications for  appointment, but does not prescribe any procedure for selection. As the  Rules only prescribe the qualifications for appointment but did not lay down  the selection procedure, the manner and method of selection is decided by  the High Court, for every selection, as and when the vacancies are notified  for selection.

3.      The Government of Andhra Pradesh issued an advertisement dated  28.5.2004 inviting applications for appointment to the following ten posts of  District & Sessions Judges (Grade II) in the A.P. State Higher Judicial  Service by direct recruitment :         Open category                           : 4 (1 Woman)         Backward Class \026 Group A             : 1 (Woman)      Backward Class \026 Group B                : 1 (Woman)      Scheduled Caste                            : 2 (1 Woman)      Scheduled Tribe                            : 1       The advertisement stated that a written examination followed by an  interview will be held for selection to the above posts. The last date for  receipt of applications was 15.6.2004. In all 1637 applications were  received. On scrutiny 1516 applicants were eligible to take the written  examination.

4.      The Full Court of Andhra Pradesh High Court has authorized its Chief  Justice to constitute Committees for the convenience of administration. The  resolutions of the Full Court containing the guidelines relating to the  functioning of the High Court have been compiled in the form of standing  orders. SO 2.13 enumerates the matters to be dealt with by the Full Court.  SO 2.14 enumerates the matters to be dealt with by the Administrative  Committee. Recruitment of District Judges is a matter to be dealt with by the

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Administrative committee under SO 2.14. The decision/minutes of the  Administrative committee in regard to recruitment of District Judges are  thereafter placed before the Full Court for its consideration under SO 2.13.  

5.      The Administrative committee by its resolution dated 30.11.2004  decided the method and manner of selection. It resolved to conduct the  written examination for the candidates for 75 marks and oral examination for  25 marks. It also resolved that the minimum qualifying marks for the OC,  BC, SC and ST candidates shall be as prescribed earlier. As per its direction,  the written examination was held on 30.1.2005 and 1026 candidates  appeared for the examination. The results were declared on 24.2.2005 and  83 candidates were successful in the written examination. Due to the  pendency of some litigation, interviews could not be held immediately. A  committee of five Judges was constituted for interviewing the candidates  and interviews were held in March 2006. Thereafter, the marks obtained by  the 83 candidates in the written examination and in the interview were  aggregated and a consolidated merit list of the 83 candidates wa prepared in  the order of merit on the basis of the aggregate marks. It contained (i) the  registration number, (ii) the names of the candidates, (iii) reservation  category, (iv) marks secured in the written examination out of 100 marks,  (v) marks secured in the interview out of 25 marks, and (vi) the total marks  secured in the written examination and interview out of 125. Thereafter, five  more merit lists in respect of categories BC-A, BC-B, BC-D, SC and ST  were prepared. On the basis of the said lists, the Interview Committee  finalized the following list of candidates to be recommended for  appointment as per merit and reservation, and submitted to the  Administrative committee with a report dated 3.4.2006 :

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

Sl. No. Regn.  Number  Name of the candidate  Category Written  Exam.  (out of  100) Interview  (out of 25) Total  marks  (for  125) 01 1859 Smt. Venkata  Jyothrimayee OC 72 9.6 81.6 02 1775 Smt. C.Sumalatha OC 61 19.4 80.4 03 1073

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Smt.k.Manju Sree OC 68.5 10.6 79.1 04 1694 A.Hari Haranatha Sarma OC 64.5 14.4 78.9 05 1009 Smt. G.Anupama  Chakravarthy BC(A) 51 8.6 59.6 06 1590 Smt. V.B.Nirmala  Geethamba BC(B) 59.5 16.4 75.9 07 1059 M.Lakshman BC(D) 59 8.2 67.2 08 1176 BSV. Prakash Kumar SC 49 10 59 09 2336 Smt. Girija  M.Priyadarshani SC 48 8.4 56.4 10 1220 N.Tukaramji ST 36.5 11.4 47.9

6.      The Administrative committee considered the report, the merit list and  list of recommended candidates proposed by the interview and by resolution  dated 4.4.2006 approved the selection of the said ten candidates and directed  the said \021select list\022 be placed before the Full Court on 6.4.2006 for its  consideration.

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7.      The Full Court considered the resolutions of the Administrative  committee dated 30.11.2004 and 4.4.2006 and the record of selection. The  Full Court impliedly approved the resolution dated 30.11.2004. But it did  not agree with the selection list prepared by the Interview committee and  approved by the Administrative committee by resolution dated 4.4.2006.  The Full Court authorized the Chief Justice to constitute a committee of  Judges for preparing a fresh list of candidates to be recommended for  appointment of District & Session Judges (Grade II). Accordingly, the Chief  Justice appointed a sub-committee of two Judges on 7.4.2006. The said sub- committee was of the view that the candidates should be evaluated with  reference to written examination marks of 75 and interview marks of 25 as  per the resolution dated 30.11.2004, instead of being evaluated with  reference to written examination marks of 100 and interview of 25, thereby  varying the prescribed ratio between written examination marks and  interview marks from 3:1 to 4:1. Therefore, it scaled down the marks  obtained by the candidates in the written examination with reference to a  total of 100, in proportion to a maximum marks of 75. By adding the  interview marks of 25, the total marks obtained by the candidates with  reference to a total of 100 (as against 125) were recalculated. The sub- committee was also of the view that apart from applying the minimum  marks for the written examination for determining the eligibility of the  candidates to appear in the interview the same cut off percentage should be  applied for interview marks, and those who fail to secure such minimum  marks in the interview should be considered as having failed. As the  minimum percentage for passing the written examination was 50% for open  category, 40% for backward classes and 35% for SC and ST, only those  candidates who secured the minimum of 12.5 marks (open category), 10  marks (BC candidates) and 8.75 marks (SC & ST candidates) were  considered as having succeeded in the interview. Consequently, only 31  candidates were found to have qualified both in the written examination and  interview and a revised merit list was prepared pruned down to 31 successful  candidates. On that basis, nine candidates were recommended for  appointment as follows : DISTRICT AND SESSIONS JUDGES GRADE \026II EXAMINATION, 2005 (LIST OF CANDIDATES TO BE RECOMMENDED FOR APPOINTMENT)

Sl.  No. Regd.  No. Name of the  candidate Category Marks in  Written  Exam (out  of 75) Interview  (out of 25) Total  Marks  (out of  100) 1 1775 Smt.C. Sumalatha OC 45.75 19.4 65.15 2 1117 Smt. G.Radharani OC 46.87

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16 62.87 3 1694 A.Hari Haranadha  Sarma OC 48.37 14.4 62.77 4 1590 Smt. V.B.Nirmala  Geethamba (BC.B) OC (W) 44.62 16.4 61.02 5 1186 K.Sreenivas BC.D 38.25 12.6 50.85 6 1072 Smt.P. Manjula Devi BC.B(W) 33.75 13.2 46.95 7 1176 BSV. Prakash Kumar SC 36.75 10 46.75 8 1151 Smt. M.Renuka BC.A(W) 30 14 44 9 1220 N.Tukaramji ST 27.37 11.4 38.77   

One vacancy relating to \021Scheduled Caste (Women)\022 was left unfilled as there was no  qualified candidate.  

8.      The said report and the selection list were considered by the Full court  on 28.4.2006 and it was resolved to accept the names of the aforesaid nine  candidates in the said list to the State Government for appointment. The  second list contained the names of 5 out of 10 candidates recommended in  the first list (Sl. Nos.2,4,6,8 and 10 in the first list were Sl. Nos.1,3,4,7 and 9  in the second list). Five candidates in the first list (Sl. Nos.1,3,5,7 and 9 in  the first list) got eliminated as they failed to secure the minimum marks in

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the interview and four fresh candidates entered the second list (Sl. Nos.2,5,6  and 8 in the second list). No candidate was selected under the category SC  (Woman) as no candidate of that category secured the minimum marks in  the interview.

9.      Two of the candidates whose names were found in the first list and  who got excluded in the second list namely K.Manjusri (Sl.No.3) and  M.Lakshman (Sl.No.7) filed W.P.Nos.10061/2006 and 10062/2006 in the  High Court praying for a declaration that the action of the High Court in  preparing the selection list by prescribing minimum qualifying marks for the  interview was arbitrary and illegal and seeking a direction to the High Court  to redraw the selection list without adopting minimum qualifying marks for  the interview. The said writ petitions were dismissed by the High Court by a  common judgment dated 30.10.2006.

Civil Appeal arising from SLP [C] No.18330/2006   10.     This appeal is by K.Manjusri whose name was found in the first list.  She contended that the minimum marks for interview not having been  prescribed either under the rules or by the resolution dated 30.11.2004 by the  Administrative committee, the action of the Full Court altering the norms for  selection by introducing minimum marks for interview, after completion of  the selection process, would amount to changing the rules of the game, not  only after the game was started but after the game was played.  

11.     Several applications for impleadment filed by the selected/non- selected candidates have been ordered to be heard along with the main  matter. IA No.2 was filed by A.Hariharanatha Sarma, N.Thukaramji,  V.B.Nirmala Geethamba and BSV Prakash Kumar whose names were found  in both the first and second lists. IA Nos.3 and 5 are filed by G.Anupama  Chakravarthy and P.Venkata Jyothirmai who were at Sl.Nos.5 and 1 in the  first list (whose names were omitted in the second list). IA No.4 is filed by  G.Radha Rani, K.Sreenivas and M.Renuka whose names are found in the  second list at Sl.Nos.2,,5,6 and 8. They were also heard. While the  applicants in IA Nos.2,3 and 5 have supported the contentions urged by the  appellant, the applicants in IA No.4 have contended to the contrary. SLP [C] No.[CC Nos.s7188-89/2007]

12.     One E.Thirumala Devi whose name is found neither in the first list  nor in the second list has filed this SLP. She was not a party in the writ  petition before the High Court and has filed this SLP with an application  seeking permission to file the SLP and for condoning the delay of 192 days  in filing the SLP. She has contended that applying the criterion of minimum  qualifying marks in the interview, without notifying the same to the  candidates was violative of principles of natural justice. She has contended  that the selection procedure was illegal and therefore the entire selection  process should be scrpped and High court should be directed to hold fresh  selections.

Writ Petition [C] No.51/2007

13.     The petitioner Girija M.Priyadarsini, (whose name was in the first list  of selected candidates, under the category \021SC- Woman\022) has contended that  minimum qualifying marks could not be applied for interviews. She further  contended that even if resolution dated 30.11.2004 of the Administrative  committee is construed as prescribing minimum marks for interview, such  minimum marks would be applicable only in regard to open category,  backward classes and scheduled Tribes, but not to Scheduled Castes. She  submits that the resolution dated 30.11.2004 merely adopts what was  prescribed earlier, that is what was resolved earlier on 24.7.2001 and  21.2.2002. She points out the said resolutions did not prescribe any  minimum marks in respect of Scheduled Caste candidates; and that  therefore, she was entitled to be selected, to the post reserved for \021Scheduled  Caste (Woman).

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Writ Petition [C] No.97/2007

14.     The petitioner Kaki Shanti Kumar is a Scheduled Caste candidate. He  was not one of the selected candidates either in the first list or in the second  list. According to him, having regard to the policy of the State Government  contained in the notifications dated 9.1.2004 and 17.2.2005, if any post  earmarked for \021Scheduled Caste-Woman\022 cannot be filled for want of  suitable candidate, such post should be filled by a Scheduled Caste-male  candidates, by transferring the post to SC (General). He claims that the post  left unfilled earmarked form \021SC \026 Woman\022 should have been treated as \021SC  \026 General\022 vacancy and he ought to have been selected for that post.  

Questions for consideration

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

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

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

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

Re : Question (i)

16.     The Rules did not prescribe any procedure for selection. When the  posts were advertised, the only criterion for selection that was mentioned  was that the selection will be by holding a written examination followed by  an interview. The manner of holding written examinations and interviews,  the marks for written examination and interview, whether the candidates  should secure any minimum marks in the written examination and/or  interview, were all yet to be decided.       

17.     As per the practice followed by the High Court (standing orders  referred to above) the entire process of recruitment of Distrit Judges was to  be dealt with by the Administrative Committee and the decisions of the  Administrative Committee were placed before the Full Court for its  consideration and approval. The Administrative Committee at its meeting  held on 30.11.2004 considered the method and manner of recruitment to be  adopted in regard to the said recruitment and took the following three  decisions : (i) that the written examination will be held on 30.1.2005  simultaneously at four centres; (ii) that the marks for the written examination  shall be 75 and for oral examination 25; and (iii) that the \023minimum  qualifying marks for OC/BC/SC/ST shall be as prescribed earlier\024. The first  two decisions are self contained and clear. In regard to the third decision, it  becomes necessary to ascertain what was the minimum qualifying marks for  OC/BC/SC/ST which had been prescribed earlier. There was no general  prescription of guidelines or norms or criteria for holding the written  examination and interview marks therefore. The procedure to be applied in  regard to each recruitment was laid down separately by the Administrative  Committee as and when the recruitment was done. When the Administrative  Committee decided on 30.11.2004 that the minimum qualifying marks for  OC/BC/SC/ST shall be as prescribed earlier it obviously referred to what  was prescribed when the previous recruitment was made in 2001-2002. The  High Court has produced the relevant minutes relating to such earlier  recruitment. It is seen that the Administrative committee had laid down the

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following method and manner for the recruitment of six posts of District &  Session Judges (Grade II) by its resolution dated 24.7.2001 (approved by the  Full court on 16.8.2001) :

\023Considered and resolved that the mode of examination be by way of  written test for 75 marks and oral interview for 25 marks and the  minimum qualifying marks for open category is 50 marks, for Backward  Classes (B.Cs) 40 marks and Scheduled Tribes (S.Ts) 35 marks in the  written examination and the same ratio will apply for oral interview also.\024

The minimum qualifying marks for the written examination was  subsequently amended/corrected by Administrative committee at its meeting  held on 21.2.2002 (approved by Full Court on 6.3.2002) as follows :

\023Considered and resolved to correct the typographical error occurred in  the resolution of the Administrative Committee Meeting held on  24..7.2001 mentioning 50 marks, 40 marks and 35 marks instead of 50  percent, 40 percent and 35 percent i.e. the minimum qualifying marks  for Open Category is 50 percent, for Backward classes (B.Cs) 40  percent and Scheduled Tribes (S.Ts) 35 percent in the written  examination.\024

18.     Let us try to analyse and find out the combined effect of the rsolutions  dated 24.7.2001 and 21.2.2002. The resolution dated 24.7.2001 prescribed  the following marks for the written examination and the interview:

(a)     The marks for written examination was 75 marks and the minimum  qualifying marks was 50 marks for open category, 40 marks for backward  classes and 35 marks for Scheduled Tribes;

(b)     The marks prescribed for interview was 25 marks and the minimum  qualifying marks for interview was 16.67 marks for open category, 13.33  marks for Backward Classes, and 11.67 marks for Scheduled Tribes (by  applying the ratio that was prescribed for written examination).

The resolution dated 24.7.2001 was amended on 21.2.2002 and it was  decided to have only minimum qualifying marks in the written test and not  for the oral examination. This is evident from the subject placed for  consideration on 21.2.2002  and the resolution on the subject. The subject  for consideration was : \023Minimum qualifying marks in the written  examination\024. The resolution stated that the minimum qualifying marks was  50% for open category, 40% for Backward  Classes and 35% for Scheduled  Tribes in the written examination\024. It did not prescribe any minimum for the  interviews. Nor was it understood as prescribing any minimum marks for the  interview. That the Administrative committee and Full Court intended and in  face proceeded on the basis that there would be no minimum marks for the  interview is evident from the fact that in regard to recruitment of 6 posts in  2001-2002, the minimum qualifying marks of 50%, 40% and 35% were  applied only for the written examination and no minimum qualifying marks  were applied in respect of interviews. We are informed that for the 2001- 2002 selections, the procedure adopted was that all candidates who passed  the written examination by securing the minimum marks were called for  interview and the interview marks were added to the written examination  marks for the purpose of preparing the merit list and for the purpose of  selection. No minimum marks were applied for interview and no candidate  was excluded on the ground of not securing any minimum marks in the  interview. It is also not in dispute that even in the earlier selections (held  prior to 2001-2002) the High Court had applied minimum marks for  interviews. Therefore the only inference is that when the Administrative  Committee resolved on 30.11.2004 that the minimum qualifying marks for  OC/BC/SC/ST shall be as prescribed earlier what it meant and provided was  that there will be minimum qualifying marks for the written examination  only, that is 50% for OC, 40% for BC and 35% for ST. It may however be  mentioned that though minimum of 35% was prescribed only for ST  candidates in   regard to  2001-2002 selections, that   percentage was

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adopted and applied in the written examination for both SC and ST  candidates by the resolution dated 30.11.2004.

19.     The Administrative Committee of the High court (Chief Justice and  five senior Judges) as also the Interview Committee consisting of five  Judges (the Chief Justice and four other Judges) all along intended,  understood and proceeded on the basis with reference to the current selection  that minimum percentage was applicable only to written examination and  not for interviews. This is evident from the manner in which interviews were  conducted and merit list and selection list were prepared by the Interview  Committee and approved by the Administrative Committee. This shows that  the Interview Committee conducted the interviews on 13th, 14th, 16th, 17th,  18th, 20th, 24th and 31st of March, 2006 on the understanding that there were  no minimum marks for interviews, that the marks awarded by them in the  interview will not by itself have the effect of excluding or ousting any  candidate from being selected, and that marks awarded by them in the  interviews will merely be added to the written examination marks, for  preparation of the merit list and selection. We are referring to this aspect, as   the manner of conducting interviews and awarding marks in interviews, by  the five members of the interviewing committee would have been markedly  different if they had to proceed on the basis that there were minimum marks  to be secured in the interview for being considered for selection and that the  marks awarded by them would have the effect of barring or ousting any  candidate from being considered for selection. Thus, the entire process of  selection - from the stage of holding the examination, holding interviews and  finalizing the list of candidates to be selected - was done by the Selection  committee on the basis that there was no minimum marks for interview. To  put it differently the game was played under the rule that there was no  minimum marks for the interview.  

20.     Shri P. P. Rao, learned senior counsel appearing on behalf of the High  Court submitted that the Resolution dated 21.2.2002 merely corrected a  typographical error in the Resolution dated 24.7.2001, regarding minimum  marks relating to written examination, and the last portion of the Resolution  dated 24.7.2001, relating to interviews, (that is, the portion reading \023and the  same ratio will apply for oral interview also\024) remained unaltered.  According to him, when the Administrative Committee passed the  Resolution dated 21.2.2002 in regard to the earlier selection and again  passed the resolution dated 30.11.2004 in regard to the current selection, to  conduct the examination with minimum qualifying marks as prescribed  earlier, the intention was to have minimum marks both for written  examination and the interview. We have already examined the resolutions  dated 24.7.2001 and 21.2.2002 and held that the combined effect was to  apply minimum percentage to only written examination and not for the  interview. However, to test the correctness of his contention, we asked the  learned counsel for the High Court to explain why the 2001-2002 selections  were done without applying minimum marks for interview. He was not in a  position to explain why the 2001-2002 selections were made without  applying any minimum marks for the interviews, if the resolutions dated  24.7.2001 and 21.2.2002 had really provided that there should be a  minimum marks for the interview. The only explanation was that it was due  to some oversight or mistake. The said explanation is neither satisfactory nor  valid.  

Re : Question (ii)

21.     The merit list and selection list prepared by the Interview Committee  and approved by the Administrative Committee, on the basis that there was  no minimum marks for interview, however, contained one error. The inter se  merit of the candidates were prepared with reference to a total of 125 marks,  comprising 100 for the written examination and 25 for the interview. But the  Administrative Committee had clearly resolved on 30.11.2004 that  evaluation of performance should be with reference to a maximum marks of

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75 for written examination and 25 for interview. The written examination  was however, conducted with reference to a question paper set for a  maximum of 100 marks. The interviews, of course, were held with reference  to maximum of 25 marks. Therefore, it was necessary to scale down the  marks secured by the candidates in the written examination (with reference  to a maximum of 100 marks) proportionately to arrive at the marks with  reference to a maximum of 75 marks so that the ratio of maximum marks in  written examination and interview would be 3:1. If the maximum marks for  the written examination was 100 and for the interview was 25, then the ratio  between the marks for written examination and interview would be 4:1,  thereby altering the prescribed marks, after the selection process had begun.  We are, therefore, of the view that the first list requested an arithmetical  correction, that is, scaling down of the written examination marks to three- fourth of what was secured by them with reference to a maximum of 100  marks, so that the ratio of 3:1 could be maintained in respect of the marks  for written examination and interviews.  

Re : Question (iii)

22.     When the Administrative Committee placed the merit lists and  Selection List before Full Court, apparently objections were raised on two  grounds. One related to the failure to provide the minimum of 50%, 40% and  35% marks for interviews, on the interpretation of resolution dated  30.11.2004 read with earlier resolutions dated 24.7.2001 and 21.2.2002. The  second objection was that even though the Administrative Committee had  resolved that the marks for written examination would be 75 and interview  would be 25, at the time of tabulating the marks, the marks secured (out of  100 marks) in the written examination had been taken into account without  scaling it down with reference to a maximum of 75 marks. The Full Court  therefore, appointed a Sub-Committee of two Judges to examine the matter  and prepare a fresh merit list and selection list. The Sub-Committee  examined the matter and submitted a revised merit list by incorporating two  changes. Firstly, while tabulating the marks, it scaled down the marks  secured by the candidates in the written examination with reference to a  maximum of 100 marks, in proportion to a maximum of 75 marks so that the  final marks were with reference to a base of 75 marks for written  examination and 25 marks for interview as resolved on 30.11.2004.  Secondly, it applied the minimum percentage of 50%, 40% and 35% for OC,  BC, SC/ST even in regard to interviews and consequently, eliminated those  who secured less than the minimum in the interview from the process of  selection. The final selection list was prepared with reference to the fresh  merit list prepared by incorporating the said two changes.  

23.     As far as the first change is concerned, we have already held that  scaling down in unexceptional as it is in consonance with the criteria  decided by the Administrative Committee on 30.11.2004 before  commencing the selection process.  

24.     But what could not have been done was the second change, by  introduction of the criterion of minimum marks for the interview. The  minimum marks for interview had never been adopted by the Andhra  Pradesh High Court earlier for selection of District & Sessions Judges,  (Grade II). In regard to the present selection, the Administrative Committee  merely adopted the previous procedure in vogue. The previous procedure as  stated above was to apply minimum m arks only for written examination and  not for the oral examination. We have referred to the proper interpretation of  the earlier resolutions dated 24.7.2001 and 21.2.2002 and held that what was  adopted on 30.11.2004 was only minimum marks for written examination  and not for the interviews. Therefore, introduction of the requirement of  minimum marks for interview, after the entire selection process (consisting  of written examination and interview) was completed, would amount to  changing the rules of the game after the game was played which is clearly  impermissible. We are fortified in this view by several decisions of this

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Court. It is sufficient to refer to three of them \026 P. K. Ramachandra Iyer v.  Union of India \026 1984 (2) SCC 141, Umesh Chandra Shukla v. Union of  India \026 1985 (3) SCC 721, and Durgacharan Misra v. State of Orissa \026 1987  (4) SCC 646.   

25.     In Ramachandra Iyer (supra), this Court was considering the validity  of a selection process under the ICAR Rules, 1977 which provided for  minimum marks only in the written examination and did not envisage  obtaining minimum marks in the interview. But the Recruitment Board  (ASRB) prescribed a further qualification of obtaining minimum marks in  the interview also. This Court observed that the power to prescribe minimum  marks in the interview should be explicit and cannot be read by implication  for the obvious reason that such deviation from the rules is likely to cause  irreparable and irreversible harm. This Court held that as there was no power  under the rules for the Selection Board to prescribed the additional  qualification of securing minimum marks in the interview, the restriction  was impermissible and had a direct impact on the merit list because the merit  list was to be prepared according to the aggregate marks obtained by the  candidates at written test and interview. This Court observed :  

\023Once an additional qualification of obtaining minimum marks at the viva  voce test is adhered to, a candidate who may figure high up in the merit  list was likely to be rejected on the ground that he has not obtaining  minimum qualifying marks at viva voce test. To illustrate, a candidate  who has obtained 400 marks at the written test and obtained 38 marks at  the viva voce test, if considered on the aggregate of marks being 438 was  likely to come within the zone of selection, but would be eliminated by the  ASRB on the ground that he has not obtaining qualifying marks at viva  voce test. This was impermissible and contrary to rules and the merit list  prepared in contravention of rules cannot be sustained.\024

26.     In Umesh Chandra (supra), the scope of the Delhi Judicial Service  Rules, 1970 came up for consideration. The rules provided that those who  secured the prescribed minimum qualifying marks in the written  examination will be called for viva voce; and that the marks obtained in the  viva voce shall be added to the marks obtained in the written test and the  candidate\022s ranking shall depend on the aggregate of both 27 candidates  were found eligible to appear for viva voce on the basis of their having  secured the minimum prescribed marks in the written examination. The final  list was therefore, expected to be prepared by merely adding the viva voce  marks to the written examination marks in regard to those 27 candidates. But  the final list that was prepared contained some new names which were not in  the list of 27 candidates who passed the written examination. Some names  were omitted from the list of 27 candidates who passed the written  examination. It was found that the Selection Committee had moderated the  written examination marks by an addition of 2% for all the candidates, as a  result of which some candidates who did not get through the written  examination, became eligible for viva voce and came into the list. Secondly,  the Selection Committee prescribed for selection, a minimum aggregate of  600 marks in the written examination and viva voce which was not provided  in the Rules and that resulted in some of the names in the list of 27 being  omitted. This Court held neither was permissible. Dealing with the  prescription of minimum 600 marks in the aggregate this Court observed :   

\023There is no power reserved under Rule 18 of the Rules for the High Court  to fix its own minimum marks in order to include candidates in the final  list. It is stated in paragraph 7 of the counter-affidavit filed in Writ Petition  4363 of 1985 that the Selection Committee has inherent power to select  candidates who according to it are suitable for appointment by prescribing  the minimum marks which a candidate should obtain in the aggregate in  order to get into the Delhi Judicial Service\005\005 But on going through the  Rules, we are of the view that no fresh disqualification or bar may be  created by the High Court or the Selection Committee merely on the basis  of the marks obtained at the examination because clause (6) of the

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Appendix itself has laid down the minimum marks which a candidate  should obtain in the written papers or in the aggregate in order to qualify  himself to become a member of the Judicial Service. The prescription of  the minimum of 600 marks in the aggregate by the Selection Committee as  an addition requirement which the candidate has to satisfy amounts to an  amendment of what is prescribed by clause (6) of the Appendix\005\005.. We  are of the view that the Selection Committee has no power to prescribe the  minimum marks which a candidate should obtain in the aggregate  different from the minimum already prescribed by the Rules in its  Appendix. We are, therefore, of the view that the exclusion of the names  of certain candidates, who had not secured 600 marks in the aggregate  including marks obtained at the viva voce test from the list prepared under  Rule 18 of the Rules is not legal.\024  

27.     In Durgacharan Misra (supra), this Court was considering the  selection under the Orissa Service Rules which did not prescribe any  minimum qualifying marks to be secured in viva voce for selection of  Munsifs. The rules merely required that after the viva voce test the State  Public Service Commission shall add the marks of the viva voce test to the  marks in the written test. But the State Public Service Commission which  was the selecting authority prescribed minimum qualifying marks for the  viva voce test also. This Court held that the Commission had no power to  prescribe the minimum standard at viva voce test for determining the  suitability of candidates for appointment of Munsifs.  

28.     In Maharashtra State Road Transport  Corporation v. Rajendra  Bhimrao Mandve \026 2001 (10) SCC 51, this Court observed that \021the rules of  the game, meaning thereby, that the criteria for selection cannot be altered  by the authorities concerned in the middle or after the process  of selection  has commenced.\022 In this case the position is much more serious. Here, not  only the rules of the game were changed, but they were changed after the  game has been played and the results of the game were being awaited. That  is unacceptable and impermissible.  

29.     The resolution dated 30.11.2004 merely adopted the procedure  prescribed earlier. The previous procedure was not to have any minimum  marks for interview. Therefore, extending the minimum marks prescribed  for written examination, to interviews, in the selection process is  impermissible. We may clarify that prescription of minimum marks for any  interview is not illegal. We have no doubt that the authority making rules  regulating the selection, can prescribe by rules, the minimum marks both for  written examination and interviews, or prescribe minimum marks for written  examination but not for interview, or may not prescribe any minimum marks  for either written examination or interview. Where the rules do not prescribe  any procedure, the Selection Committee may also prescribe the minimum  marks, as stated above. But if the Selection Committee want to prescribe  minimum marks for interview, it should do so before the commencement of  selection process. If the selection committee prescribed minimum marks  only for the written examination, before the commencement of selection  process, it cannot either during the selection process or after the selection  process, add an additional requirement that the candidates should also secure  minimum marks in the interview. What we have found to be illegal, is  changing the criteria after completion of the selection process, when the  entire selection proceeded on the basis that there will be no minimum marks  for the interview.  

30.     It was submitted that Administrative Committee and Interview  Committee were only delegates of the Full Court and the Full Court has the  absolute power to determine or regulate the process of selection and it has  also the power and authority to modify the decisions of the Administrative  Committee. There can be no doubt about the proposition. The  Administrative Committee being only a delegate of the Full Court, all  decisions and resolutions of Administrative Committee are placed before the  Full  Court for its approval and the Full Court may approve, modify or  reverse any decision of the Administrative Committee. For example when

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the resolution dated 30.11.2004 was passed it was open to the Full Court,  before the process of selection began, to either specifically introduce a  provision that there should be minimum marks for interviews, or prescribe a  different ratio of marks instead of 75 for written examination and 25 for  interview, or even delete the entire requirement of minimum marks even for  the written examination. But that was not done. The Full Court allowed the  Administrative Committee to determine the method and manner of selection  and also allowed it to conduct the examination and interviews with reference  to the method and manner determined by the Administrative Committee.  Once the selection process was completed with reference to the criteria  adopted by the Administrative Committee and the results were placed before  it, the Full Court did not find fault with the criteria decided by the  Administrative Committee (as per resolution dated 30.11.2004) or the  process of examinations and interviews conducted by the Administrative  Committee and Interview Committee. If the Full Court had found that the  procedure adopted in the examinations or interviews was contrary to the  procedure prescribed, the Full Court could have set aside the entire process  of selection and directed the Administrative Committee to conduct a fresh  selection. The resolution dated 30.11.2004 was approved. It did not find any  irregularity in the examination conducted by the Administrative Committee  or the interviews held by the Selection Committee. The assessment of  performance in the written test by the candidates was not disturbed. The  assessment of performance in the interview by the Selection Committee was  not disturbed. The Full Court however, introduced a new requirement as to  minimum marks in the interview by an interpretative process which is not  warranted and which is at variance with the interpretation adopted while  implementing the current selection process and the earlier selections. As the  Full Court approved the resolution dated 30.11.2004 of the Administrative  Committee and also decided to retain the entire process of selection  consisting of written examination and interviews it could not have  introduced a new requirement of minimum marks in interviews, which had  the effect of eliminating candidates, who would otherwise be eligible and  suitable for selection. Therefore, we hold that the action of Full Court in  revising the merit list by adopting a minimum percentage of marks for  interviews was impermissible.  

31.     The Division Bench of the High Court while considering the validity  of the second list, has completely missed this aspect of the matter. It has  proceeded on an erroneous assumption that the resolution dated 30.11.2004  of the Administrative Committee prescribed minimum marks for interviews.  Consequently, it erroneously held that the Administrative Committee had  acted contrary to its own resolution dated 30.11.2004 in not excluding  candidates who had not secured the minimum marks in the interview and  that the Full Court had merely corrected the wrong action of the  Administrative Committee by drawing up the revised merit list by applying  marks for interview also. The decision of the Division Bench therefore,  cannot be sustained.  

CONCLUSION  

32.     We therefore, find that the judgment of the Division Bench of the  High Court has to be set aside with a direction to the AP High Court to  redraw the merit list without applying any minimum marks for interview.  The merit list will have to be prepared in regard to 83 candidates by adding  the marks secured in written examination and the marks secured in the  interview. Thereafter, separate lists have to be prepared for each reservation  category and then the final selection of 10 candidates will have to be made.  The scaling down of the written examination marks with reference to 75  instead of 100 is however, proper.  

33.     In view of our said decision, WP(C) No.51/2007 and WP(C)  No.97/2007 do not survive for consideration. As a candidate is available

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under the category of SC (Woman) and she will be selected, the question of  considering whether that post should be transferred to SC (General) does not  arise.  

34.     The SLP by Thirumala Devi is not maintained. She was not a selected  candidate, either in the first list or second list. She did not challenged the  process of selection by filing a writ petition. She was not a party to the writ  petitions. She is in no way aggrieved as she will not be selected, by adopting  either method. There is also a delay of 190 days. Therefore, the said SLP is  liable to be rejected on the ground of delay and on the ground it is not  maintainable.  

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

(i)     The application for impleadment (IAs 2, 3, 4 & 5 filed in SLP(C)  No.18330/2006) are allowed.  

(ii)    The civil appeal filed by K. Manjusree is allowed and the judgment of  the High Court is set aside. The High Court is directed to prepare a fresh  merit list in regard to 83 candidates with reference to their marks in written  test and interview without applying any minimum marks for interviews and  thereafter finalise the selections in accordance with law.  

(iii)   The appointments of five candidates in pursuance of our interim order  need not be disturbed. The said five candidates will find a place in the  selection list even when it is redone, though their ranks/reservation category  may vary. Their rank and seniority will depend upon the fresh selection list  of ten candidates to be drawn and not on the appointment made in pursuance  of the interim order.   

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

(v)     The application for permission to file SLP by Thirumala Devi is  rejected. As a consequence SLP (CC) No.7188-79/2007 is rejected.