IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3866 of 2011 Rohan Rai , son of Shri Ram Briksh Prasad R/o Mohalla- Saidpura, P.O. & P.S. Khagaul, Dist. Patna. ---Petitioner Versus 1. The Life Insurance Corporation of India Yogaksherma, Jeevan Bima Marg, Mumbai. 2. The Chairman Life Insurance Corporation of India Yogaksherma, Jeevan Bima Marg, Mumbai. 3. The Executive Director ( Personnel) M.P.P.R. Department, L.I.C. Yogaksherma, Jeevan Bima Marg, Mumbai --Respondents. ----- 05 12.08.2011 Present writ application filed under Article 226 of the Constitution of India seeks appropriate writ(s)/order(s) /direction(s) upon the respondents to appoint the petitioner on the post of Assistant Administrative Officer (Generalists) against the post(s) reserved for Other Backward Classes ( for short „OBC‟) category. Background facts, in a nutshell, are as follows:- Life Insurance Corporation (for short „LIC‟) published an advertisement on its website. The same was also published in the employment news/Rojgar Samachar and other leading newspapers (Annexure-1), inviting application from different categories of candidates for appointment on the post of Assistant Administrative Officer ( for short „AAO‟). Petitioner applied under O.B.C. category. As per terms and conditions of advertisement, selection was to be made on the basis of overall performance in the written test and interview. Paper- II of the written test was descriptive and was of qualifying nature which was not to be counted for ranking. However, paper- II of only 2 those candidates who had obtained such minimum qualifying marks in each part of paper I ( to be fixed at the discretion of LIC) was to be assessed. The number of candidates to be called for interview was three times the number of vacancies, as per the ranking, based on total marks obtained in paper- I. Petitioner was issued call letter (Annexure-2) to appear at the written test. On 07.06.2009, he appeared at the said written examination from the Patna Centre and was declared successful thereat. The result was published on the website of the L.I.C. The petitioner was thereafter called in for interview vide communication dated 22.08.2009 (Annexure-3). He appeared at the interview on the stipulated date and time. Having fared well, both at written test as well as interview, he was hopeful of being selected but, his name did not figure in the final result. Desperated by the result, petitioner sought information under Right to Information Act ( for short „RTI‟) from the respondent L.I.C. which was furnished to him. From the said information, it was found that petitioner had secure 97 marks in the written test and 08 marks in the interview, the total being 105 marks. The information(s) supplied by the respondent LIC (Annexure 4 and 4/1), further disclosed that cut off marks of the written test for OBC category was 70, and cut off marks for final selection of OBC category was 91. The petitioner was informed that the respondents had fixed 10 out of 28 marks as the cut off marks in the interview for the General/OBC candidates. Since he had secured only 08 marks at the interview he was not empanelled in the select list although in aggregate he had secured 105 marks inclusive of written test and interview 3 whereas candidates belonging to OBC category obtaining 91 marks in aggregate had been selected. Petitioner, thus, approached this Court making a grievance that the respondents acted arbitrarily in fixing cut off marks for candidate(s) belonging to different categories which was not disclosed/ represented through the advertisement igniting the selection process. A counter affidavit on behalf of the respondent LIC has been filed. Rejoinder thereto is also on record. Heard learned counsel for the petitioner and Sri Umesh Prasad Singh, learned Senior counsel appearing on behalf of the respondent LIC. Learned counsel for the petitioner submits that the present selection process is not governed by any statutory Rule and, as such, the same was governed by the clear stipulation(s) made in the advertisement. Annexure-1, under the head of “ Selection Procedure”, discloses as under:- “For Assistant Administrative Officer (Generalists) A Competitive examination will be held at 37 centers in India. Applicants will have to appear for the written examination on 7th June, 2009 ( tentative) at the centre chosen by them/allotted to them at their own expenses. The Corporation, however, reserves the right to change the examination date. Candidates will be informed accordingly in case of any change in the date of examination. Appearing in the written examination will not automatically confer any right for being selected for the said post. Selection will be on the basis of overall performance in the Written Test and Interview. Further, the appointment of candidates will be subject to his/her being found medically fit in the pre-recruitment medical examination.” 4 What was represented through the said advertisement was that the selection will be on the basis of overall performance in the written test and interview. Under the head “written test”, Paper- II was of qualifying nature and was not to be counted for ranking. Having qualified in Paper -II minimum qualifying marks on each part of paper I (as the Corporation may fix at its discretion) was to be assessed. According to the advertisement, thus, the respondent L.I.C. had arrogated to itself the discretion to fix minimum qualifying marks in the written test only. The respondents after conclusion of selection process comprising in two parts decided to fix a cut off marks which, according to petitioner, will tantamount to change the rules of game and thus unfair and arbitrary in the eye of law. In this connection, petitioner has relied on information furnished by the respondent LIC under R.T.I. Act (Annexure-6) to show that after the interview was over a proposal was mooted on 22.10.2009 to fix a cut off mark for the interview also for finalizing the final merit list. The said proposal was finally approved by the competent authority. To substantiate the said point reliance has been placed on the following reported judgments:- (i) 2008(3) SCC 512 ( K. Manjusree vs. State of Andhra Pradesh & Anr.) (ii) 2008(3) PLJR 378 SC ( Hemani Malhotra vs. High Court of Delhi) Per contra, learned counsel for the respondents supported the 5 impugned action of the respondent LIC. It is submitted that the respondent did apply cut off marks at the interview which was 10 out of 28 for General/OBC categories and 09 out of 28 for Scheduled Caste/Scheduled Tribe categories. Thus, cut off marks was uniformly adopted and applied for all candidates. In the submission of learned counsel, the employer has every right to determine the terms and conditions as well as the procedure to be followed so long it is not opposed to law. The respondents, have, however, admitted that the selection procedure for the post of AAO is not regulated by any Rule. He, therefore, admits the contention of the petitioner that selection to the post of AAO is/was to be governed by the stipulation(s) made in the advertisement inviting application. According to him, the representation made in the advertisement that selection will be on the basis of overall performance in the written test and interview would inherit fixation of cut off marks at the interview after the same is over in order to short list candidate and prepare select list of the candidates. Learned counsel emphasized the importance of interview which is aimed at assessing a candidate‟s alertness, capability to take decision, intellectual ability and personal qualities.. It is further contended that the members of the interview committee were given broad guidelines for conducting interview in a fair manner. The orders in which a candidate was required to be evaluated were mentioned in the guidelines. The duties and responsibilities of selected candidate were also mentioned. The list of marks obtained by the candidates in the written test was not given to the interview Board/Committee to enable 6 them to conduct interview in a fair and unprejudicial manner. Considering the importance of personal interview in assessing a candidate‟s overall intellectual and personal qualities the respondent LIC, in order to select the best, applied the cut off marks at the interview and, as such, no fault can be found in the selection process adopted by the respondent LIC particularly in applying cut off marks at the interview after the interview was over. From the rival submissions made on behalf of the parties, it appears the core issue is whether the respondent LIC acted in unfair and arbitrary manner in fixing cut off marks for the interview before finally selecting the candidates for appointment to the post(s) of AAO in the respondent Corporation. In the case of K. Manjusree (Supra) the Hon‟ble Supreme Court was dealing with recruitment for the posts of District and Sessions Judge (Grade-II) which was governed by the Andhra Pradesh State Higher Judicial Service Rules. The said Rule prescribed quota and educational qualification but did not prescribe any other criterion for selection. The said criterion for selection was governed by resolutions which prescribed 75 marks for written tests and 25 for interview. The said criteria was followed but while holding written examination, 100 marks were prescribed instead of 75. The High Court (on administrative side) made two changes after written examination and interviews were over. First, marks obtained by candidates at the written examination were proportionately scaled down so as to maintain ratio between the written examination and interview as 3:1 It also introduced minimum qualifying marks for interview which 7 caused reshuffling of selection list. The Supreme Court permitted the aforesaid change of scaling down the marks to maintain 3:1 ratio but found fault with second change introduced in the shape of introduction of criterion of minimum marks for the interview, taking into account that such criteria for interview had never been adopted by the High Court earlier for the selection to the post of District and Sessions Judges (Grade II). Accordingly, the Hon‟ble Apex Court relying on the judgment of Durgacharan Misra v. State of Orissa, (1987) 4 SCC 646 and Maharashtra SRTC v. Rajendra Bhimrao Mandve, (2001) 10 SCC 51, held that the respondents were not justified in changing the rules of the game after the game had been played and the result of the game were being awaited. The same was held to be totally unacceptable and impermissible. (refer paras 31 and 32 of the report). In the case of Hemani Malhotra vs. High Court of Delhi (Supra) the Hon‟ble Supreme Court was again dealing with process of recruitment to Delhi Higher Judicial Service wherein the advertisement disclosed only minimum qualifying marks in the written test examination. After holding the first stage of selection process i.e. written test, the interview of the selected candidate was deferred and, in the meantime, selection committee resolved to prescribe minimum/ cut off marks for the viva voce which was placed before the full Court which approved 55% as the minimum qualifying marks in viva voce for the General candidates and 50% for the Scheduled Castes and Scheduled Tribes candidates.. Thereafter interview of the candidates was held and result was published. The writ petitioner was not declared 8 successful and on her application it was informed that she was not selected since she did not obtain minimum qualifying marks at the viva- voce test. The Hon‟ble Apex Court again posed a question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed would amount to changing the rules of the game after the game was played. Relying on the ratio laid down in K. Manjusree (Supra) the Hon‟ble Court found fault with the said imposition/ application of applying of minimum cut off marks at the interview and granted relief to the petitioner. In the case at hand, the respondents having concluded written test ( stage I) and the interview (stage II) mooted a proposal for imposition of minimum cut off marks in the interview which was approved after the interview of the candidate was over. The present case, therefore, is better placed than the case of the petitioner of 2008(3) PLJR 378 SC ( Hemani Malhotra vs. High Court of Delhi). On perusal of the terms and conditions set out in the advertisement, it appears that the respondent L.I.C. represented therein that in the selection process qualifying subject is paper- II and the marks obtained in paper I will be considered for selecting candidates for interview. The Corporation shall have full right to apply minimum qualifying marks in each part of paper I as the Corporation may fix at its discretion. There is no whisper or indication or term or condition spelt out therein that the respondents shall also have the discretion to apply a minimum cut off marks at the interview to select the best. As seen above, after the interview was over the respondents mooted a proposal to fix a cut off 9 mark which was approved by the competent authority on 22.10.2009 whereby, 10 out of 28 was fixed as the cut off mark for the General/OBC candidates and 09 out of 28 was fixed as the cut off marks for the Scheduled Castes/Scheduled Tribes candidate(s). From the pleadings on record, it can be deduced that it is not the case of the respondents LIC that in the previous selection process they had adopted the criteria of fixing a cut off mark at the interview. This Court, thus, finds that neither the stipulation made in the advertisement nor the established procedure in the matter of selection of A.A.O admit of applying any cut off mark at the interview in selecting a candidate based on selection procedure comprising of written test and interview. Petitioner, in the rejoinder, has stated that in the subsequent advertisement for the same post respondent L.I.C. have come with a clear condition/stipulation that candidate will have to qualify in the written test and interview. Annexure-8 to the rejoinder is the advertisement issued by the respondent L.I.C. for recruitment to the post of AAO. Clause (v ) and (vi) whereof read as under:- “v. Inter view. The number of candidates to be called for interview will be about three times the number of vacancies to be filled in subject to availability of successful candidates in the written test and will be purely as per the ranking list ( total marks obtained in Paper I). Candidates will have to obtain the minimum marks as will be decided by the corporation in the interview. Candidates who do not obtain the minimum qualifying marks as decided shall be excluded from the selection process. vi) The Corporation reserves the right to fix the minimum eligibility standards in order to restrict the candidates to be called for interview, commensurate with number of vacancies and also the minimum qualifying marks to qualify in the 10 interview. The decision of the Corporation in this regard shall be final and binding on the candidates and no correspondence will be entertained in this regard.” For the foregoing reasons this Court is persuaded to hold that the respondents were not justified in refusing selection of petitioner to the post of AAO based on his performance at the written test and the interview. His exclusion based on application of cut off marks at the interview would be unfair and unjust. The procedure followed in the matter of selection to hold him unsuccessful is held opposed to law, unfair and arbitrary since the respondents in applying cut off marks at the interview in face of stipulation(s) made in the advertisement changed the rules of the game when the game was played and over. By order dated 03.03.2011, this Court while granting adjournment enabling the respondents to file counter affidavit passed the following interim order:- “In the meantime, the respondent authorities of the LIC of India are directed to keep one post under the OBC category reserved for the petitioner.” The application is, thus, allowed in the following manner:- Let the respondents consider the case of the petitioner for appointment to the post of AAO pursuant to the selection process undergone by him aggregating the marks obtained by him at the written test and the interview. He will not be declared unfit only on the ground that he has secured 08 out of 28 marks in the interview. The respondents shall complete the consideration in the light of 11 observations/directions made hereinabove within a period of 04 weeks from the date of receipt/ production of a copy of this order. The parties are left to bear their own cost(s). Sym ( Kishore K. Mandal, J. )