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CASE NO.: Appeal (civil)  927 of 2007

PETITIONER: P. Mohanan Pillai

RESPONDENT: State of Kerala & Ors

DATE OF JUDGMENT: 23/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 5064 of 2006]

S.B. SINHA,  J :

       Leave granted.                  Oil Palm India Limited is a Government Company (for short, ’the  Company).  The Union of India and the State of Kerala are its shareholders.   It is indisputably a ’State’ within the meaning of Article 12 of the  Constitution of India.  Appellant herein was appointed as a worker in the  services of the Company in the year 1982.  12 posts of  Watchman/Messenger/Attender fell vacant.   Recruitment to the said post is  not governed by any statutory rules.  Admittedly, all the workmen who were  in service of the Company were to be considered therefor.  Applications  having been invited for filling up of the said 12 posts,  253 persons applied  therefor.  A written test was conducted on 18.01.2001.  Appellant herein  stood first in the written examination.  The said written examination was  conducted by the Kerala State Productivity Council in terms of the  resolution of the Board of Directors of the Company dated 13.06.2000.  It is  not in dispute that the written test was conducted for eliminating those who  had failed to secure the minimum qualifying marks in the written test.  It has  also not been disputed that out of  253 applicants, only 197 appeared therein.   However, keeping in view the total number of posts which were required to  be filled up, only 36 candidates who got the highest marks were called for  interview, appellant being one of them.  It is furthermore not in dispute that  after a policy decision was taken to call only those candidates who had come  within the zone of three times of the number of posts,  the minimum  qualification was reduced to 46 marks and 11 more persons were permitted  to appear at the interview.  It has furthermore not been disputed that 100  marks were fixed both for written test as well as viva-voce.

       Appellant, having not been selected, filed a writ petition, on the  premise that Respondent Nos. 4 and 5 were appointed by the company,  although not eligible therefor.  It had categorically been stated that they were  called for interview only one day prior to the holding thereof.  It was alleged  that the top officers of  the Company personally went to the houses of  Respondent Nos. 4 and 5 and handed over the appointment orders on  22.05.2001, which was a Sunday.  It was also contended that the list of the  selected candidates had not been published.   

The Writ Petition of the appellant was dismissed by a learned Single  Judge  of  the High Court by a judgment and order dated 22.12.2005,  holding :

"\005From the counter affidavit and also from the lists  furnished by the petitioners themselves it is clear that of  the 11 included in the additional list only two were

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appointed and they are serial Nos. 6 and 8 in the  additional list.  It is also stated in the counter affidavit  that 50% marks were given to the written test and 50%  marks for the interview.  That will not vitiate the  selection as held by the Supreme Court in Subash  Chandra Verma v. State of Bihar 1995 Supp. (12) SCC  325.  Selection is a matter of policy and if the Selection  Committee thought it fit to have the ratio of 1:4 for the  purpose of selection, it cannot be said that the selection is  vitiated on that only ground.  It is now settled law that it  is for the party who alleges vitiating factors like  favouritism, malafides etc. to plead and prove the  same\005"   

       A Writ Appeal preferred thereagainst by the appellant was also  dismissed by a Division Bench of the High Court,  opining :

"7.     We find hardly any substance in the arguments as  above.  Interview  was a mandatory step to be followed.   In the matter of selection to the post of Watchman, we  feel it is more appropriate to set apart 50% marks for the  interview.  Physical fitness and personality are essential  requirements for a watchman; Resourcefulness,  aptitude  and initiative are qualities essential for a Messenger and  Attender, apart from the bookish knowledge.  The above  qualities are best assessable by an interview."  

       Dr. K.P. Kylasanatha Pillay, the learned counsel appearing on behalf  of the appellant, assailed the judgment of the learned Single Judge as also  the Division Bench of the High Court, contending :  

1)      The High Court committed a manifest error in passing the impugned  judgment in so far as it failed to take into consideration the fact that the zone  of consideration cannot be enlarged arbitrarily. 2)      Having regard to the nature of the duties required to be performed by  the Watchman/Messenger/Attender, 100 marks could not have been fixed  for oral interview.

       Mr. C.N. Sree Kumar, the learned counsel appearing for the company  and Mr. G. Prakash, the learned counsel appearing on behalf of Respondent  No. 5, on the other hand, would support the judgment.   

       Selection of the candidates was to be made from amongst the workers  who had been working in the Company for a long time.  Although there may  not have been any statutory rules governing recruitment to the posts in  question, evidently a practice therefor was prevailing.  Rule of the game for  the said purpose was fixed, namely, 36 persons would be called for  interview from amongst those who were successfully competed the written  examination.  The fact that the appellant obtained more than 73% marks in  the written examination and topped the list is not in dispute.  The fact that he  was eligible for consideration for appointment in the post is also not in  dispute.  It has furthermore not been in dispute that the minimum qualifying  marks in the written test was fixed.  It is, however, not known whether the  same was 50% or not, but then it was admittedly higher than 46%.  The  Managing Director of the Company in his counter affidavit categorically  stated :

       "Since the number of posts that were available  to be filled up was 12, initially it was decided to call  36 candidates who had scored the highest marks in  the written test and these candidates were called to  appear for an interview on 22.3.2001.   However, it  was then decided by the Company to enlarge the  zone of consideration to 1:4 and on the basis of this

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decision, call letters were again issued to the next 11  candidates, fixing a cut off mark of 46 out of 100.   The candidates who were thus called for the  interview were interviewed on 22.3.2001 by a panel  consisting of the Company’s Chairman, Managing  Director, Under Secretary to the Department of  Agriculture, Government of Kerala and an outside  expert member from the Kerala State Productivity  Council, Kalamassery\005"                        

       Why such a decision had been taken after the publication of the result  of the written examination and after calling 36 candidates for interview is  not known.  Why the Company intended to enlarge the zone of consideration  from 1 : 3 to 1 : 4  has also not been disclosed.  Why the cut-off mark was  also lowered  remained a mystery.

       It may be that in a given situation, a decision of the State may be  changed, but therefor good and sufficient reasons must be assigned.  The  Company failed to do so.  The  decision taken in this behalf smacks of  arbitrariness.  It prejudiced the candidates like the appellant.

       It is now well-settled that ordinarily rules which were prevailing at the  time, when the vacancies arose would be adhered to.  The qualification must  be fixed at that time.  The eligibility criteria as also the procedures as was  prevailing on the date of vacancy should ordinarily be followed.

       In Pitta Naveen Kumar & Ors. v. Raja Narasaiah Zangiti & Ors. [2006  (9) SCALE 298], a rule framed by the State of Andhra Pradesh reducing the  cut-off mark was struck down by this Court, holding :

"55. The question, however, remains as to whether the  State could reduce the cut-off marks.   If the cut-off mark  specified by the State is arbitrary, Article 14 would be  attracted.  The Tribunal did not have any jurisdiction to  pass an interim order directing reduction in the cut-off  mark.  The cut-off mark at 66% was fixed having regard  to the ratio of the candidates eligible for sitting at the  written examination at 1:50.  An interim order as is well- known is issued for a limited purpose.  By reason thereof,  the Tribunal had jurisdiction to grant a final relief.

56.  Moreover, the Tribunal could not have directed the  Commission to do something which was contrary to  rules.  An interim order is subject to variation or  modification.  An interim order would ordinarily not  survive when the main matter is dismissed.  The  Commission also did not intend to abide by the said  directions.  It wanted the State to pass an appropriate  order.   It was, pursuant to or in furtherance of the said  desire of the Commission as also the direction of the  Tribunal as contained in its interim order dated 6.1.2005,  GOMs 200 was issued.  The said Government Order was,  thus, not issued by the State of its own.  There was no  independent application of mind. The statutory  requirements for passing an government order  independent of the interim directions issued by the  Tribunal were wholly absent."                    

       Reliance placed my Mr. Sree Kumar on Vijay Syal and Another v.  State of Punjab & Others [(2003) 9 SCC 401] runs counter to the submission  of the learned counsel.  Therein, the appellants secured less marks than those  whose appointments were in question.  In that situation it was held that they  were to be denied appointments on the ground that they were called for in  the interview in the second list, the position of the appellant could not  improve.  Allegedly, when those candidates who belonged to Scheduled

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Caste and had secured higher marks and in that view of the matter, the  appellant therein could not be selected in the general category.

       In the said decision, however, the Bench categorically opined that the  marks allocated for the viva voce should not normally exceed 12.5%  noticing the decisions of this Court in Ashok Kumar Yadav v. State of  Haryana [(1985) 4 SCC 417], All India State Bank Officers’ Federation v.  Union of India [(1997) 9 SCC 151] as also Jasvinder Singh v. State of J&K  [(2003) 2 SCC 132].  The question as to how much marks should be  allocated for interview would depend upon the post and nature of duties to  be performed.  The nature of duties to be performed on the post of  Watchman/Messenger/Attender is not such which requires a high intellectual  ability or any particular trait of the candidates which is required to be judged  by an expert. [See e.g. I.I.T., Kanpur v. Umesh Chandra and Others \026 (2006)  5 SCC 664]   

       We may notice that in Inder Parkash Gupta v. State of J&K and  Others   [(2004) 6 SCC 786], a three-Judge Bench opined : "34. It is true that for allocation of marks for viva voce  test, no hard-and-fast rule of universal application which  would meet the requirements of all cases can be laid  down. However, when allocation of such marks is made  with an intention which is capable of being abused or  misused in its exercise, it is liable to be struck down as  ultra vires Article 14 of the Constitution of India.                 \005                    \005            \005 36. We would proceed on the assumption that the  Commission was entitled to not only ask the candidates  to appear before it for the purpose of verification of  records, certificates of the candidates and other  documents as regards qualification, experience, etc. but  could also take viva voce test. But marks allotted therefor  should indisputably be within a reasonable limit. Having  regard to Rule 8 of the 1979 Rules higher marks for viva  voce test could not have been allotted as has rightly been  observed by the High Court. The Rules must, therefore,  be suitably recast."

       In this case allocation of marks for interview was in fact misused.  It  not only contravened the ratio laid down by this Court in Ashok Kumar  Yadav (supra) and subsequent cases, but in the facts and circumstances of  the case, it is reasonable to draw an inference of favouritism.   The power in  this case has been used by the Appointing Authority for unauthorized  purpose. When a power is exercised for an unauthorized purpose, the same  would amount to malice in law [ See The Manager, Govt. Branch Press and  Another v. D.B. Belliappa - AIR 1979 SC 429, Punjab State Electricity  Board v. Zora Singh and Others \026 (2005) 6 SCC 776 and K.K. Bhalla v.  State of M.P. and Others \026 (2006) 3 SCC 581].  

       For the reasons aforementioned, the impugned judgments cannot be  sustained, which are set aside accordingly.  Selection of Respondent Nos. 4  and 5 is set aside.  The company is directed to appoint the appellant.  The  appeal is allowed with cost.   Counsel’s fee assessed at Rs. 10,000/-.