IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1313 OF 2008 (Arising out of SLP [C] No.18330/2006)

K.Manjusree … Appellant

Vs.

State of A.P. & Anr. …. Respondents

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

J U D G M E N T

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 – Group A : 1 (Woman) Backward Class – Group B : 1 (Woman) Scheduled Caste : 2 (1 Woman) Scheduled Tribe : 1

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The  advertisement  stated  that  a  written  examination  followed  by  an

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

receipt  of  applications  was  15.6.2004.  In  all  1637  applications  were

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

examination.

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

Chief  Justice  to  constitute  Committees  for  the  convenience  of

administration. The resolutions of the Full Court containing the guidelines

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

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

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

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

dealt  with  by  the  Administrative  committee  under  SO  2.14.  The

decision/minutes of the Administrative committee in regard to recruitment

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

consideration under SO 2.13.  

5. The  Administrative  committee  by  its  resolution  dated  30.11.2004

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

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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

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appointment  as  per  merit  and  reservation,  and  submitted  to  the

Administrative committee with a report dated 3.4.2006 :

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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 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 ‘select list’ be placed before the Full Court on 6.4.2006

for its consideration.

7. The  Full  Court  considered  the  resolutions  of  the  Administrative

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

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

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

approved by the  Administrative  committee  by resolution  dated  4.4.2006.

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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

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

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

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

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

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

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

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

appointment as follows :

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

Sl. 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 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 ‘Scheduled Caste (Women)’ was left unfilled as there was no qualified candidate.  

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

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

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

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

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

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

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

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

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

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

minimum marks in the interview.

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

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

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

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

preparing the selection list by prescribing minimum qualifying marks for the

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

to redraw the selection list without adopting minimum qualifying marks for

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

common judgment dated 30.10.2006.

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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

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applicants in IA Nos.2,3 and 5 have supported the contentions urged by the

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

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

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

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

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

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

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

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

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

that  the selection procedure was illegal  and therefore the entire  selection

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

selections.

Writ Petition [C] No.51/2007

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

of selected candidates, under the category ‘SC- Woman’) has contended that

minimum qualifying marks could not be applied for interviews. She further

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contended that  even if  resolution dated 30.11.2004 of the  Administrative

committee is construed as prescribing minimum marks for interview, such

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

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

submits  that  the  resolution  dated  30.11.2004  merely  adopts  what  was

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

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

minimum  marks  in  respect  of  Scheduled  Caste  candidates;  and  that

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

‘Scheduled Caste (Woman).

Writ Petition [C] No.97/2007

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

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

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

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

earmarked  for  ‘Scheduled  Caste-Woman’  cannot  be  filled  for  want  of

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

candidates, by transferring the post to SC (General). He claims that the post

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left unfilled earmarked form ‘SC – Woman’ should have been treated as ‘SC

– General’ vacancy and he ought to have been selected for that post.  

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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.       

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

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

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

Administrative  Committee  were  placed  before  the  Full  Court  for  its

consideration and approval.  The Administrative Committee at its meeting

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

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

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

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

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

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

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

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

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

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

holding  the  written  examination  and  interview  marks  therefore.  The

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

separately by the Administrative Committee as and when the recruitment

was done. When the Administrative Committee decided on 30.11.2004 that

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

earlier  it  obviously  referred  to  what  was  prescribed  when  the  previous

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

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

Administrative committee had laid down the following method and manner

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

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

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

The  minimum  qualifying  marks  for  the  written  examination  was

subsequently amended/corrected by Administrative committee at its meeting

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

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

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

rsolutions dated 24.7.2001 and 21.2.2002. The resolution dated 24.7.2001

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prescribed  the  following  marks  for  the  written  examination  and  the

interview:

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

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

classes and 35 marks for Scheduled Tribes;

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

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

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

applying the ratio that was prescribed for written examination).

The  resolution  dated  24.7.2001  was  amended  on  21.2.2002  and  it  was

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

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

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

for  consideration  was  :  “Minimum  qualifying  marks  in  the  written

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

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

Tribes in the written examination”. It did not prescribe any minimum for the

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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

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mentioned  that  though  minimum  of  35%  was  prescribed  only  for  ST

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

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

candidates by the resolution dated 30.11.2004.

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

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

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

understood  and  proceeded  on  the  basis  with  reference  to  the  current

selection  that  minimum  percentage  was  applicable  only  to  written

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

which  interviews  were  conducted  and  merit  list  and  selection  list  were

prepared by the Interview Committee and approved by the Administrative

Committee.  This  shows  that  the  Interview  Committee  conducted  the

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

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

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

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

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

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

referring  to  this  aspect,  as   the  manner  of  conducting  interviews  and

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awarding  marks  in  interviews,  by  the  five  members  of  the  interviewing

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

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

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

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

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

holding  the  examination,  holding  interviews  and  finalizing  the  list  of

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

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

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

interview.  

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

Court  submitted  that  the  Resolution  dated  21.2.2002  merely  corrected  a

typographical error in the Resolution dated 24.7.2001, regarding minimum

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

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

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

According  to  him,  when  the  Administrative  Committee  passed  the

Resolution  dated  21.2.2002  in  regard  to  the  earlier  selection  and  again

passed the resolution dated 30.11.2004 in regard to the current selection, to

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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

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no minimum marks for interview, however, contained one error. The inter se

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

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

the  Administrative  Committee  had  clearly  resolved  on  30.11.2004  that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

fourth of what was secured by them with reference to a maximum of 100

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marks, so that the ratio of 3:1 could be maintained in respect of the marks

for written examination and interviews.  

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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.

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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

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written examination and not for the interviews. Therefore, introduction of

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

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

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

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

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

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

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

State of Orissa – 1987 (4) SCC 646.   

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

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

minimum  marks  only  in  the  written  examination  and  did  not  envisage

obtaining  minimum marks  in  the  interview.  But  the  Recruitment  Board

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

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

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

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

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

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

additional  qualification  of  securing  minimum marks in the interview, the

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restriction  was  impermissible  and  had  a  direct  impact  on  the  merit  list

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

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

observed :  

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

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

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

secured  the  prescribed  minimum  qualifying  marks  in  the  written

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

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

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

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

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

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

marks to the written examination marks in regard to those 27 candidates.

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But the final list that was prepared contained some new names which were

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

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

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

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

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

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

the Selection Committee prescribed for selection, a minimum aggregate of

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

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

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

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

“There is no power reserved under Rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list. It is stated in paragraph 7 of the counter-affidavit filed in Writ Petition 4363 of 1985 that the Selection Committee has inherent power to select candidates who according to it are suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service…… But on going through the Rules,  we are of the view that  no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of  the  marks  obtained  at  the  examination  because  clause  (6)  of  the Appendix  itself  has  laid  down the  minimum marks  which  a  candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial Service. The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an addition requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause (6) of the Appendix…….. We are of the view that the Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different

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from the minimum already prescribed by the Rules in its Appendix. We are,  therefore,  of  the  view  that  the  exclusion  of  the  names  of  certain candidates,  who had not  secured 600 marks in  the aggregate including marks obtained at the viva voce test from the list prepared under Rule 18 of the Rules is not legal.”  

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

selection  under  the  Orissa  Service  Rules  which  did  not  prescribe  any

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

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

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

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

was the  selecting authority prescribed minimum qualifying marks for the

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

prescribe  the  minimum  standard  at  viva  voce  test  for  determining  the

suitability of candidates for appointment of Munsifs.  

28. In  Maharashtra  State  Road  Transport   Corporation  v.  Rajendra

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

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

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

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

only the rules of the game were changed, but they were changed after the

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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,

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is changing the criteria after completion of the selection process, when the

entire selection proceeded on the basis that there will be no minimum marks

for the interview.  

30. It  was  submitted  that  Administrative  Committee  and  Interview

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

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

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

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

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

decisions  and resolutions  of  Administrative Committee are placed before

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

reverse any decision of the Administrative Committee. For example when

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

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

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

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

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

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

Administrative Committee to determine the method and manner of selection

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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

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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.  

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CONCLUSION  

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

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

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

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

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

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

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

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

instead of 100 is however, proper.  

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

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

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

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

not arise.  

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

candidate, either in the first list or second list. She did not challenged the

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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

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of  ten  candidates  to  be  drawn  and  not  on  the  appointment  made  in

pursuance of the interim order.   

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

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

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

……………………….CJI [K. G. Balakrishnan]

………………………..J [R. V. Raveendran]

………………………..J [J. M. Panchal]

New Delhi; February 15, 2008.         

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