Case: P. Mohanan Pillai Vs. State Of Kerala

Council, Kalamassery." 9. 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. 10. 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.11. 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. 12. 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." 13. 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 Caste and had secured higher marks and in that view of the matter, the appellant therein could not be selected in the general category. 14. 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 (2006) 5 SCC 664 ]. 15. 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.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." 16. 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 - (2005) 6 SCC 776 and K.K. Bhalla v. State of M.P. and Others - (2006) 3 SCC 581 ]. 17.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. 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.11. It is nowthat 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 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. BelliappaAIR 1979 SC 429 , Punjab State Electricity Board v. Zora Singh and Others(2005) 6 SCC 776  and K.K. Bhalla v. State of M.P. and Others(2006) 3 SCC 581 ].