Barot Vijaykumar Balakrishna & Ors vs Modh Vinaykumar Dasrathlal & Ors

4. Against the judgment of the single judge, the writ petitioners filed intra-court appeals and a division bench of the High Court allowed the appeals and set aside the judgment of the single judge. It held that the action of the Commission in introducing the minimum qualifying mark for the viva 3 voce, in the middle of the selection process, was bad and "the Commission appears to have guided by legal malafide (sic)". It, accordingly, quashed the select list and the appointments made on its basis and directed that a fresh list be drawn up on the basis of the aggregate of marks obtained by the candidates in the written test and the viva voce regardless of the minimum qualifying mark prescribed by the Commission for the viva voce. It directed the concerned authorities to complete the process within 2 months from the date of the judgment and till then permitted the appointees to continue to serve in their respective positions.

(emphasis added) At the end of the Recruitment Rules there was an Appendix in two parts. Part I contained the details concerning the written examination which would consist of five papers with an aggregate of 600 marks; part II provided that there would be a viva voce and personality test of 75 marks.

"PART- II Oral Interview- 30 Marks The candidate obtains minimum 105 marks in the written examination i.e. as decided by the Commission, and the candidate who fulfils the educations qualifications, age, experience, etc., as mentioned in the advertisement shall be called for the oral interview in exact numbers and there shall be 8 30 marks for the oral interview. The final result of this examination shall be published as per the recruitment rules.

14. The written test was held by the Commission on January 11, 2009 and its result was published on March 20, 2009 by giving out the roll numbers (and not the names) of the qualifying candidates. Approximately 5,550 candidates sat for the written examination out of which 790 candidates were short-listed for being called for the oral interview. After the publication of the result of the written test the marks obtained by the short-listed candidates were kept in a sealed cover.

15. At this stage, while preparations were underway for holding the viva voce of the short-listed candidates, in the meeting held on April 22, 2009, it was decided that in terms of rule 12(3) of the Recruitment Rules, the Commission was required to decide the minimum qualifying marks for the viva voce. Accordingly, on April 23, 2009, the Secretary to the Commission submitted the proposal together with a copy of the Rules for order of the Commission and on the same day the Commission took the decision fixing 10 10 out of 30 as the minimum qualifying mark for the viva voce. The proceedings of the Commission dated April 23, 2009 read as follows:

19. The viva voce of all the 790 short listed candidates was held from April 27, 2009 to July 9, 2009. On July 15, 2009, marks of the written test of the candidates who were called for interview were taken out of the sealed cover and on July 16, the Commission declared the final result as per Rule 14(1).

The examination is of objective aptitude type, the provision of re-checking is not adopted. The final result of the examination shall be furnished on the basis of the total marks obtained in written as well as oral examination/interview....

32. In light of the discussions made above we find that the Division Bench of the High Court took a wrong view of the matter and its judgment and order are quite unsustainable. We, accordingly, set aside the impugned judgment and dismiss all the writ petitions filed by the respondents before the Gujarat High Court.

33. In the result, the appeals are allowed but with no order as to costs.

.........................................J (AFTAB ALAM) .........................................J (R.M. LODHA) New Delhi, July 5, 2011.