Case: GOA PUBLIC SERVICE COMMISSION Vs. PANKAJ RANE &amp; ORS

case of changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. The fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case [Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] . 18. Though learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case. In other words, we would think that in the facts of this case, they are closer to the facts of the case in P. K. Ramachandra Iyer case and judgment following the same which we have already noted. As far as Tej Prakash Pathak and Others case is concerned, it again did not specifically involve a Rule similar to Rule 12. 19. It is true that there is a distinction in the facts with those of the case in K. Manjusree (supra). We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) for the reasons which we have already indicated. 20. As far as the question relating to the respondent No. 3 not being in possession of the essential qualification, we may notice the following: It is true that under the Rules, knowledge of Konkani is declared as an essential qualification which the advertisement also reiterates. The interview was held. The writ petition was filed by all respondents together. The contention which appears to have engaged the High Court in the impugned judgment related to the power of the appellant to stipulate for a separate minimum in the interview. The impugned judgment does not reflect even in the slightest way any attempt on the part of the appellant to non-suit the third respondent on the ground that apart from there being no merit in the contention of respondents that Commission did not have the power to stipulate for a separate minimum, respondent No. 3 was even otherwise disqualified. We do not find even a whisper of such a case in the impugned judgment. We further notice that there is no case that the appellant has urged this as a ground in the special leave petition. It is true in objection filed in this case in this Court in January, 2022, the appellant has produced what is described as its pleadings in the High Court. We have perused the pleadings. The appellant has not been able to specifically point out any allegation as such dealing with the ineligibility of respondent no. 3 on the ground that he is not possessed of the essential qualification of the kind complained of. It is true also no doubt that the question as to whether a candidate is qualified, in that, he is having knowledge of the Konkani language would appear to be tested in the interview. It is equally true that it is an essential qualification. But as to whether a person would be disqualified on the ground that he was not having particular essential qualification in the facts is a pure question of fact. This is not seen pleaded as such. We reiterate that the impugned judgment does not show that the appellant has urged this before the High Court. Apart from the proceedings of the Selection Board, there is no record produced to show that respondent No. 3 was disqualified on this ground. We would therefore, think that it may not be appropriate to permit the appellant to raise this question. 21. We do think that the respondents are justified in pointing out that the High Court is right in not permitting the appellant to contend that the respondents cannot be treated as entitled to be recommended. The question however may arise as to what is the nature of the relief which can be granted. We notice from the reliefs which have been set out in the writ petition that it is as follows: (A) This Honble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondent No. 1 to prepare a Select List in terms of the Advertisement No. 14/2016 and make recommendations to the Government on the basis of the said Select List in accordance with law; (B) This Honble Court also be pleased to issue an appropriate writ, order or direction, to quash and set aside the Advertisement dated 21.07.2017 bearing No. 7/2017. (C) Pending the hearing and final disposal of this Petition, this Honble Court be pleased to stay the execution and operation of the entire Selection Process pursuant to the Advertisement No. 7/2017 dated 21.07.2017; (D) Ad-interim relief in terms of prayer clause (C); (E) Any other relief, as deemed fit and proper may please be granted in favour of the Petitioners herein; (F) For costs. We have already noticed the relief granted by the High Court. 22. There is yet another aspect which we must consider. As already noticed, even before the filing of the writ petition, the Commission commenced fresh proceedings. While there is a stay of the impugned judgment, this Court had made it clear that the appointments will be subject to the outcome of the special leave petition.

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

Explanation:
0[ds]10. Rule 10 contemplates the holding of a competitive examination and oral interview. The competitive examination is to be conducted by the appellant in the manner notified by the Government from time to time as pointed out by Mr. Vinay Navare, learned senior counsel. The proviso provides the appellant with the power to hold a screening test required for shortlisting of candidates. The manner in which it is to be held is a matter to be decided by the Commission from time to time. It is most pertinent to note that Rule 10(3) specifically declares that a candidate must obtain a minimum passing percentage in the competitive written examination. It is pegged at 65 per cent of the total marks. The percentage is purportedly reduced in the case of certain categories.Next, we must notice that Rule 10(5) declares the marks to be allotted for written examination and oral interview is to be notified in the advertisement inviting the applications by the Commission. Here, as Mr. Pratap Venugopal, learned counsel, rightly points out the Commission cannot be found to have acted contrary to the Rules insofar as, the Commission has, in the advertisement, declared the marks to be alloted for the written examination and oral interview. What is conspicuous by its absence in Rule 10 is any minimum to be obtained by any candidate in the interview. The matter does not end here.11. Bearing considerable resemblance as we shall presently see with the law in the facts is the decision of this Court starting with P. K. Ramachandra Iyer (supra), Rule 12 declares that the Commission is duty bound to forward to the Government the select list. The select list is to be arranged in the order of merit of the candidates. The select list is to be sent arranged in the order of merit which, in turn, is to be determined in accordance with the aggregate marks obtained by each candidate at the competitive written examination and oral interview. The rule maker was conscious of the fact that it has prescribed a separate minimum to be obtained by candidate in the written examination. It also contemplated the holding of an interview but as regards the interview a separate minimum was not stipulated. But at the same time, the law giver has contemplated that the Commission is to prepare a select list wherein merit would dictate the order in which the select list is to be prepared and all that it is to do is to total up the marks obtained by the candidate in the competitive written examination and the oral interview. In other words, the merit list would be dictated by the performance in the competitive examination and interview subject only, no doubt, to the qualification that only those candidates who have obtained 65 marks in the written examination would be qualified. We need not be detained by the proviso to Rule 12.12. Rule 12(2) further provides that in drawing the list of selected candidates it shall limit itself to the declared number of vacancies. Wait list is also contemplated. It is on a consideration of the statutory Rules that the High Court has taken the view that the case must be decided in terms of P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) apart from K. Manjusree (supra).13. We may notice in P. K. Ramachandra Iyer (supra), the following:43. The relevant rules are Rules 13 and 14 of the 1977 Rules, which may be extracted:13.Candidates who obtain such minimum marks in the written examination as may be fixed by the Board in their discretion shall be summoned by them for viva voce.14. After the examination, the candidates will be arranged by the Board in the order of merit in each category (professional subjectwise) as disclosed by the aggregate marks finally awarded to such candidates and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination.44. Mr Ramachandran, learned counsel for the petitioner contended that Rule 13 does not envisage obtaining of minimum marks at the viva voce test even though it contemplates obtaining minimum marks at the written test so as to be eligible for being called for viva voce test. It was further urged that Rule 14 specified the manner in which merit list is to be arranged. Rule 14 provides that after both written and viva voce tests are held, the candidates will be arranged by the Board in the order of merit in each category (professional subjectwise) as disclosed by the aggregate marks finally awarded to each candidate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. On a combined reading of Rules 13 and 14, two things emerge. It is open to the Board to prescribe minimum marks which the candidates must obtain at the written test before becoming eligible for viva voce test. After the candidate obtains minimum marks or more at the written test and he becomes eligible for being called for viva voce test, he has to appear at the viva voce test. Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the rules. By necessary inference, there was no such power in the ASRB to add to the required qualifications If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. It however does not appear in the facts of the case before us that because of an allocation of 100 marks for viva voce test, the result has been unduly affected. We say so for want of adequate material on the record. In this background we are not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written test. But the ASRB in prescribing minimum 40 marks for being qualified for viva voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. 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 obtained 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 obtained 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.14. We must next notice Durgacharan Misra (supra):6. Rules 16, 17, 18 and 19 are the relevant rules which have a material bearing on the question that falls for determination. These rules read as under:16. The Commission shall summon for the viva voce test all candidates who have secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be 30 per cent of the total marks in all the papers:Provided that government may after consultation with the High Court and Commission fix higher qualifying marks in any or all of the subjects in the written examination in respect of any particular recruitment.17. The Chief Justice or any of the other Judges of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test and advise the Commission on the fitness of candidates at the viva voce test from the point of view of their possession of the special qualities required in the judicial service, but shall not be responsible for selection of candidates.18. The marks obtained at the viva voce test shall be added to the marks obtained in the written examination. The names of candidates will then be arranged by the Commission in order of merit. If two or more candidates obtain equal marks in the aggregate, the order shall be determined in accordance with the marks, secured at the written examination. Should the marks secured at the written examination of the candidate concerned be also equal, then the order shall be decided in accordance with the total number of marks obtained in the optional papers.19. (1) The Commission shall then forward to the government in the Law Department the list of candidates prepared in accordance with Rule 18 indicating therein whether a candidate belongs to Scheduled Caste or Scheduled Tribes.(2) The list prepared shall be published by the Commission for general information.(3) The list, unless the Governor in consultation with the High Court otherwise decides, shall ordinarily be in force for one year from the date of its preparation by the Commission.7. The rule-making authorities have provided a scheme for selection of candidates for appointment to judicial posts. Rules 16 prescribes the minimum qualifying marks to be secured by candidates in the written examination. It is 30 per cent of the total marks in all the papers. The candidates who have secured more than that minimum would alone be called for viva voce test. The Rules do not prescribe any such minimum marks to be secured at the viva voce test. After the viva voce test, the Commission shall add the marks of the viva voce test to the marks in the written examination. There then, Rule 18 states:The names of candidates will then be arranged by the Commission in the order of merit.11. In the light of these decisions the conclusion is inevitable that the Commission in the instant case also has no power to prescribe the minimum standard at viva voce test for determining the suitability of candidates for appointment as Munsifs.15. The Rules have been framed under the proviso to Article 309 read with the Article 234 of the Constitution. Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State. It shall be in accordance with the Rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court. The Rules in question have been made after consultation with the Commission and the State High Court. The Commission which has been constituted under the Rules must, therefore faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would, therefore, be illegal and without authority.15. A question may arise whether the Public Service Commission can depart from the Rules in this regard. Light is shed by the views expressed by this Court in Manjit Singh and Others (supra). We may refer to the following exposition made by this Court.Where no special qualification or any prescribed standard of efficiency over and above the eligibility criteria is provided by the Rules or the State, it would not be for the Commission to impose any extra qualification/standard supposedly for maintaining minimum efficiency which, it thinks, may be necessary.10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than the required number of candidates may obtain marks above the cut-off marks, say for example, out of 10,000 if 8000 or 6000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so, any candidate who is otherwise eligible up to the 500th position, whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut- off marks.11. In the case in hand, it was not for the Commission to have fixed any cut-off marks in respect of the reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up-to-the-mark merit as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview.16. In this regard, we must notice that in the facts of this case of the 1866 candidates who appeared in the screening test / computer test, only 7 candidates which included respondent Nos. 1 to 3 cleared the test. The number stood further reduced to 4 and which again included respondents Nos. 1 to 3. Therefore, when the question arose as to how the interview should be conducted, the Commission decided on 16.05.2017 to fix 26 marks out of 40 as cut off marks. It no doubt works out at 60 per cent of the total marks in the interview segment. Rules did not provide for a separate minimum for the interview. The advertisement did not provide for a separate minimum in the interview. It is almost a week before the interview that the Commission took the decision in this regard. We have stated these facts only to highlight that this is not a case where the Commission was faced with the task of having to interview a very large number of candidates. For 6 unreserved posts and 5 reserved posts finally, only 4 emerged as candidates to be dealt with at the final stage viz., the oral interview. This, therefore, is distinguishable, in other words, from the judgment relied upon by Mr. Pratap Venugopal, learned counsel for the appellant viz. M.P. Public Service Commission (supra). That was a case where this Court noted that the appellant Commission therein noting the large number of applications received from the General Category candidates against four posts decided to call only 71 applicants who had 7 1/2 years of practice although 188 applicants were eligible, in view of the fact that under Section 8(3)(c) of the provisions applicable in the said case, five years of practice as an Advocate or pleader of Madhya Pradesh was a minimum requirement. It was therefore, a case which though relied upon by the appellant is distinguishable on facts. This is apart from noticing that the appellant has not been able to inform the Court as to whether there was a Rule in the said case similar to Rule 12 as present in this case. As far as Yogesh Yadav (supra) is concerned, this again is not a case which involved a Rule resembling Rule 12 of the Rules. We further may also notice that in the said case recruitment was carried out by the employer itself and it was not done by the recruiting body which the appellant is and which is limited by statutory rules made under Article 309 of the constitution.18. Though learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case.In other words, we would think that in the facts of this case, they are closer to the facts of the case in P. K. Ramachandra Iyer case and judgment following the same which we have already noted. As far as Tej Prakash Pathak and Others case is concerned, it again did not specifically involve a Rule similar to Rule 12.19. It is true that there is a distinction in the facts with those of the case in K. Manjusree (supra). We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) for the reasons which we have already indicated.20. As far as the question relating to the respondent No. 3 not being in possession of the essential qualification, we may notice the following:It is true that under the Rules, knowledge of Konkani is declared as an essential qualification which the advertisement also reiterates. The interview was held. The writ petition was filed by all respondents together. The contention which appears to have engaged the High Court in the impugned judgment related to the power of the appellant to stipulate for a separate minimum in the interview. The impugned judgment does not reflect even in the slightest way any attempt on the part of the appellant to non-suit the third respondent on the ground that apart from there being no merit in the contention of respondents that Commission did not have the power to stipulate for a separate minimum, respondent No. 3 was even otherwise disqualified. We do not find even a whisper of such a case in the impugned judgment. We further notice that there is no case that the appellant has urged this as a ground in the special leave petition. It is true in objection filed in this case in this Court in January, 2022, the appellant has produced what is described as its pleadings in the High Court. We have perused the pleadings. The appellant has not been able to specifically point out any allegation as such dealing with the ineligibility of respondent no. 3 on the ground that he is not possessed of the essential qualification of the kind complained of. It is true also no doubt that the question as to whether a candidate is qualified, in that, he is having knowledge of the Konkani language would appear to be tested in the interview. It is equally true that it is an essential qualification. But as to whether a person would be disqualified on the ground that he was not having particular essential qualification in the facts is a pure question of fact. This is not seen pleaded as such. We reiterate that the impugned judgment does not show that the appellant has urged this before the High Court. Apart from the proceedings of the Selection Board, there is no record produced to show that respondent No. 3 was disqualified on this ground.We would therefore, think that it may not be appropriate to permit the appellant to raise this question.21. We do think that the respondents are justified in pointing out that the High Court is right in not permitting the appellant to contend that the respondents cannot be treated as entitled to be recommended. The question however may arise as to what is the nature of the relief which can be granted. We notice from the reliefs which have been set out in the writ petition that it is as follows:(A) This Honble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondent No. 1 to prepare a Select List in terms of the Advertisement No. 14/2016 and make recommendations to the Government on the basis of the said Select List in accordance with law;(B) This Honble Court also be pleased to issue an appropriate writ, order or direction, to quash and set aside the Advertisement dated 21.07.2017 bearing No. 7/2017.(C) Pending the hearing and final disposal of this Petition, this Honble Court be pleased to stay the execution and operation of the entire Selection Process pursuant to the Advertisement No. 7/2017 dated 21.07.2017;(D) Ad-interim relief in terms of prayer clause (C);(E) Any other relief, as deemed fit and proper may please be granted in favour of the Petitioners herein;(F) For costs.We have already noticed the relief granted by the High Court.22. There is yet another aspect which we must consider. As already noticed, even before the filing of the writ petition, the Commission commenced fresh proceedings. While there is a stay of the impugned judgment, this Court had made it clear that the appointments will be subject to the outcome of the special leave petition.