GOA PUBLIC SERVICE COMMISSION versus PANKAJ RANE & ORS.
[2022] 5 S.C.R. 657, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Ratio
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GOA PUBLIC SERVICE COMMISSION
v.
PANKAJ RANE & ORS.
(Civil Appeal No. 2779 of 2022)
APRIL 06, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Goa Civil Service Rules, 2016: r 10, 12 – Constitution of
India – Art.320 – Power of Commission, scope – Pursuant to
advertisement, the respondents appeared in the computer-based
screening test and cleared the same – Thereafter, they appeared in
the written test and also cleared the same – Interview was scheduled
and then the appellant-Commission fixed the cut-off marks for
interview to be 26 out of 40 – Interview took place and respondents
were declared unsuccessful – Respondents challenged before the
High Court fixing of cut-off marks by the appellant-commission
upon the premise that as per rr.10 and 12 of the Goa Civil Service
Rules, and in light of Art.320 of the Constitution, the appellant-
commission had no power to fix the cut- off at 65% at the interview
stage and no mention was even made in the advertisement– High
Court allowed the respondents’s writ petition holding that the fixing
of the 65% minimum qualifying marks in the oral interview was
illegal and beyond the powers of the appellant-commission – Hence
instant appeal – Held: r.10(5) declares that the marks to be allotted
for written examination and oral interview is to be notified in the
advertisement – Since there is no mention of minimum to be obtained
by any candidate in the interview, therefore such fixing of cut-off
marks by
appellant- commission is beyond its powers – Service law.
Dismissing the appeal, the Court
HELD: 1. 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. 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
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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. It must noted that Rule 10(5) declares
that the marks to be allotted for written examination and oral
interview is to be notified in the advertisement inviting the
applications by the Commission. 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. 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. [Paras 10,
16][666-E-H; 673-B-C]
K. Manjusree v. State of A.P. & Anr. (2008) 3 SCC
512 : [2008] 2 SCR 1025; Durgacharan Misra v. State
of Orissa (1987) 4 SCC 646 : [1987] 3 SCR 1097
– relied on.
M.P. Public Service Commission v. Navnit Kumar Potdar
(1994) 6 SCC 293 : [1994] 3 Suppl. SCR 665; Yogesh
Yadav v. UOI & Ors. (2013) 14 SCC 623 : [2013] 8
SCR 194 – distinguished.
2. 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
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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. [Paras 11, 12][667-B-E]
3. 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. Since the appellant fails in its challenge to the impugned
order, the respondents must finally obtain redress. Accordingly,
the directions contained in the impugned order, it is for Appointing
Authority to take the decision in accordance with law in the matter.
[Para 22][676-G;677-A]
State of Haryana v. Subhash Chander Marwaha (1974)
3 SCC 220 : [1974] 1 SCR 165; State of Punjab and
Others v. Manjit Singh and Others (2003) (11) SCC 6;
Tej Prakash Pathak and Ors. v. Rajasthan
High Court
and Ors.– referred to.
Case Law Reference
[2008] 2 SCR 1025
relied on
Para 4
[2013] 8 SCR 194
distinguished
Para 4
[1994] 3 Suppl. SCR 665
distinguished
Para 4
(2013) 4 SCC 540
referred to
Para 4
[1987] 3 SCR 1097
relied on
Para 6
[1974] 1 SCR 165
referred to
Para 6
(2003) (11) SCC 6
referred to
Para 7
GOA PUBLIC SERVICE COMMISSION v. PANKAJ RANE & ORS.
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2779
of 2022.
From the Judgment and Order dated 21.11.2017 of the High Court
of Bombay at Goa in Writ Petition No.660 of 2017.
Pratap Venugopal, Ms. Surekha Raman, Akhil Abraham, Vijay
Valsan, M/s K. J. John and Co., Advs. for the Appellant.
Siddharth Dave, Devadatt Kamat, Vinay Navare, Sr. Advs., Abu
Bakr Sabbaq, Rajesh Inamdar, Javedur Rehman, Siddhant Singh, Aditya
Bhat, Harsh Pandey, Revanta Solanki, Farrukh Rasheed, Ms. Ripul Swati,
Suhas Kadam, M/s Black and White Solicitors, Ms. Ruchira Gupta, Ms.
Shagun Rai, Shishir Deshpande, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
Leave granted.
(1) By Advertisement No. 14/16 published by the appellant,
applications were invited for filling up of six posts of unreserved category
and three posts in the reserved category under the Goa Civil Service
Rules, 2016 (hereinafter referred to as ‘the Rules’). Pursuant to the
advertisement, 1866 candidates appeared in the Computer Based
screening Test (CBRT) held on 05.03.2017. When the results were
declared, only seven candidates including respondent Nos. 1 to 3 before
this Court were found to have cleared the test. In terms of the
advertisement and the Rules, the written test came to be conducted on
10.04.2017 and 11.04.2017. In the results which came to be declared,
out of the seven, only four candidates were found qualified. Respondent
Nos. 1 to 3 were among them. There is one Mr. Vivek Krishna Naik
who, no doubt, stood first. On 16.05.2017, the appellant decided to fix
the cut off marks with respect to the interview. The total marks fixed for
the interview was 40. The appellant fixed cut off marks at 26. The final
interview took place on 24.05.2017. Mr. Vivek Krishna Naik was declared
successful. The results of respondent Nos. 1 to 3 were not declared.
Respondents took up the matter before the Chairman of the appellant
pointing out the irregularities besides moving the Chief Secretary.
Applications were made under the Right to Information Act seeking the
information as to why results were not published. This was done by
respondent No. 1. We cut the long story short by indicating that on
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21.07.2017, a fresh advertisement came to be issued inviting applications
for 10 posts of Junior Scale officer of Goa Civil Services.
(2) Respondent Nos. 1 to 3 filed writ petition on 22.07.2017. By
the impugned judgment, the High Court has allowed the writ petition and
has ordered as follows:
“24. We note that in the affidavit in reply, not obtaining minimum
qualifying marks in oral interview pursuant to the decision in the
meeting dated 16 May 2017 is the sole reason not to send the
names of the Petitioners to the Respondent-State. No other reason
than the qualifying marks at the interview is shown to us.
25. In these circumstances, we hold that the action of the
Respondent No. 1-Commission is not recommending the names
of the Petitioners to the post of Junior Scale Officer of the Goa
Civil Services on the ground that they have not secured 65%
minimum qualifying marks in the oral interview, is illegal and beyond
the powers of the Respondent No. 1-Commission. The decision
taken by Respondent No. 1-Commission in the meeting dated 16
May 2017 introducing criteria of 65% minimum qualifying marks
at the interview for the post of Junior Scale Officer in the Goa
Civil Service, therefore, cannot be sustained and it is quashed and
set aside. The Respondent No. 1-Commission will take necessary
steps as per Rule 12 of the Rules of 2016 on the basis of the
consolidated marks of the Petitioners in the written examination
and oral interview without attaching any
qualifying criteria to the
marks obtained at the oral interview. The Respondent No. 1-
Commission will take necessary steps within eight weeks from
the date the order is uploaded to the server.”
(3) In the appeal, we have heard Shri Pratap Venugopal, learned
counsel appearing on behalf of the appellant, Mr. Devadatt Kamat learned
senior counsel appearing for respondent No. 1, Mr. Siddharth Dave,
learned senior counsel for respondent No. 2, and Mr. Vinay Navare,
learned senior counsel appearing for respondent No. 3.
(4) Learned counsel for the appellant would complain that the
High Court has erred in placing reliance on the judgments which the
High Court has indeed placed reliance on. The case of the appellant is
built around the failure of the respondents to obtain the minimum marks
as prescribed by the Commission which, according to the Constitution, it
GOA PUBLIC SERVICE COMMISSION v. PANKAJ RANE & ORS.
[K. M. JOSEPH, J.]
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has the power to do. The Commission is tasked with the job of conducting
the recruitment of candidates and to recommend their names. There is
nothing illegal with the Commission in such an event, at fixing a bar and
a fairly high bar with which alone, the Commission would be in a position
to procure services of the best candidates for appointment in the State
service. This is part of its constitutional imperative flowing from Article
320 of the Constitution. The marks for the examination and interview
were indicated in the Advertisement. It is pointed out that the decision of
this Court in K. Manjusree v. State of A.P. & Anr. (2008) 3 SCC 512 is
distinguishable with reference to the facts which actually arose for
consideration in the said case. Learned counsel also drew our attention
to the judgment of this Court in Yogesh Yadav v. UOI & Ors. (2013) 14
SCC 623. We notice that the attempt made by the appellant based on
the said judgment before the High Court did not yield success. The learned
counsel also drew our attention to the judgment of this Court in M.P.
Public Service Commission v. Navnit Kumar Potdar (1994) 6 SCC
293. Finally, Shri Pratap Venugopal also pointed out that three learned
Judges in Tej Prakash Pathak and Others v. Rajasthan High Court
and Others (2013) 4 SCC 540 have referred the issue relating to the
correctness of the judgment in K. Manjusree (supra) to a larger Bench.
The matter is pending
consideration before the larger Bench. Number
of cases have been referred.
(5) Mr. Pratap Venugopal, learned counsel, also contends that as
far as respondent No. 3 is concerned, there is an additional factor which
would weigh against him. It is pointed out that under the Rules formulated,
knowledge of Konkani language is an essential qualification. This
requirement is reiterated in the advertisement. It is pointed out that a
counter affidavit was filed in the High Court and in the counter affidavit,
the proceedings of the Board which took the interview have been produced
which clearly brings out the fact that respondent No. 3 was not found
proficient in the Konkani language which proficiency was an inflexible
requirement in the Rules and the advertisement.
(6) Per contra, Mr. Devadatt Kamat, learned senior counsel for
respondent No. 1, would point out that on the facts obtaining in this case,
the case on all fours is covered by a catena of judgments beginning with
the decision in P. K. Ramachandra Iyer v. UOI (1984) 2 SCC 141. In
other words, it is pointed out that with reference to the statutory rules in
question which governed the destiny of the respondents, this Court would
have to discountenance the case of the appellant Commission. The rules
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in question according to respondent No. 1 are similar to the rules which
was considered in P. K. Ramachandra Iyer’s case (supra). What is
more, the same line of argument appealed to a later Bench in the decision
reported in Durgacharan Misrav. State of Orissa (1987) 4 SCC 646.
It is pointed out by Mr. Kamat, learned senior counsel, that the decision
of this Court in State of Haryana v. Subhash Chander Marwaha
(1974) 3 SCC 220 which apparently forms the basis for the view taken
in Tej Prakash Pathak and Others (supra) did not involve the Rule
similar to Rule 12 of the Rules obtaining in the facts of this case. The
facts in Tej Prakash Pathak and Others (supra) also did not involve a
statutory injunction as is contained in Rule 12 of the Rules applicable in
the facts of this case. He would submit that it is not the law that when
the matter is referred to a larger Bench, the decision which is under a
cloud ceases to possess its binding nature. What is more, having regard
to the distinction in facts and the similarity which the facts of this case
bears with the facts in P. K. Ramachandra Iyer’s case and
Durgacharan Misra’s case (supra), etc., this case can be dealt with by
this Court without having to refer the same to the larger Bench.
(7) Shri Siddartha Dave, learned senior counsel appearing on behalf
of the respondent No. 2, would also adopt the same line of reasoning.
He would, in fact, firmly contend that there is no power with
Public Service Commission
to dilute the mandate of the Rules. This is
not a case he points out where there were a large number of candidates
who have been found eligible after the conduct of the written examination
and as part of the need to trim the number of candidates to be finally
considered, the Commission took a decision to resort to a separate
minimum in the interview in this regard. He drew support from the
judgment which is reported in State of Punjab and Others v. Manjit
Singh and Others (2003) (11) SCC 559.
(8) Mr. Vinay Navare, learned senior counsel, drew our attention
to Article 309 of the Constitution. He drew our attention to the word
“recruitment”. He proceeded to further refer to Article 320 and he pointed
out that the role of Commission is to be appreciated with reference to
Article 320(3)(a) and 320(3)(b). In other words, he would ascribe a
limited role to the Commission viz., to conduct examination under Article
320 (1) which, no doubt, he agrees would also include right to conduct
interview. He would, therefore, adopt the arguments of the other senior
counsel and submit that a careful perusal of the Rule which is made
GOA PUBLIC SERVICE COMMISSION v. PANKAJ RANE & ORS.
[K. M. JOSEPH, J.]
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under Article 309 of the Constitution would show that the impugned
judgment is only to be supported.
He would further rely on the judgment of this Court in
Durgacharan Misra’s case (supra). As far as respondent No. 3 not
possessing the essential qualification is concerned, he would submit that
no such case was set up in the High Court. When queried about the
production of the proceedings of the Selection Board which took the
interview, he would submit that it may not suffice as a careful perusal of
the counter affidavit filed in the High Court which is produced along
with an affidavit filed in this Court in January 2022 by the appellant,
would not show that the appellant has taken any specific contention
denying the right of the respondent No. 3 to be placed in the select list on
the score that he did not possess the essential qualification as alleged.
He would further contend that even in the special leave petition, there is
no ground taken that respondent No. 3 was not qualified on the said
score. He would point out that allowing such a contention to be urged at
this stage would cause grave miscarriage of justice as far as respondent
No. 3 is concerned. He is taken by surprise and had it been raised before
the High Court as such, it could have been dealt with at that stage he
complains. This is besides pointing out that a perusal of the impugned
judgment does not show that the appellant attempted to engage the High
Court on this question which is sought to be raised. It is not a pure
question of law which could be raised for the first time.
ANALYSIS
(9) The High Court has proceeded with this matter on the basis of
a conspectus of the Rules. The Rules in question, in turn, are the Rules
made under Article 309 and they are the Goa Civil Service Rules, 2016.
If we notice Rule 10 to begin with, Rule 10 reads as follows:
“10. Competitive examination for direct recruitment. - (1) The
Competitive Examination for direct recruitment shall comprise a
written examination and an Oral Interview. The Competitive
Examination shall be conducted by the Commission, in the manner
notified by the Government, from time to time:
Provided whenever the Goa Public Service Commission is of
opinion of conducting screening test required for shortlisting of
candidates, the same should be conducted by the Commission in
a manner decided by the Commission from time to time.
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(2) Whenever Competitive written examination for the direct
recruitment to the Junior Scale post of Service is conducted by
the Commission, the results of such written examination shall be
declared by the Commission by displaying the same prominently
on the notice board and website of the Commission.
(3) The minimum passing percentage for competitive written
examination shall be 65 percent of the total marks, the passing
percentage for candidates belonging to Scheduled Castes and
Scheduled Tribes shall be minimum 55 percent of the total marks
and Other Backward Class, Differently Abled Persons and for
Children of Freedom Fighters, it shall be minimum 60 percent of
the total marks.
(4) The Commission shall invite five times the number of candidates
as against the number of vacancies advertised, for the oral
interview purely on merit with due regard to the policy on
reservation. In case there are more candidates securing the same
number of marks as the last candidate, all such candidates shall
also be called for the oral interview.
(5) Marks to be allotted for written examination and oral interview
shall be notified in advance in the advertisement inviting applications
by the Commission.
(6) Such oral interview shall be conducted under CCTV surveillance
or videography and the proceedings thereof shall also be
videorecorded and such recording shall form a permanent record
of the Commission.
We may also advert to Rule 12:
“12. List of successful candidates. -
(1) The Commission shall
forward to the Government a select list, arranged in the order of
merit of the candidates which shall be determined in accordance
with the aggregate marks obtained by each candidate at the
competitive written examination and oral interview:
Provided that if two or more candidates have secured equal number
of marks in the aggregate, their order of merit shall be in the order
of the marks secured by the candidates in the written examination
and if the candidates have secured equal marks in the written
examination then order of merit shall be as per their date of birth
GOA PUBLIC SERVICE COMMISSION v. PANKAJ RANE & ORS.
[K. M. JOSEPH, J.]
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and if in case the date of birth is also the same then the candidate
possessing higher educational qualifications will be placed higher
in the merit list.
(2) The Commission while drawing the list of selected candidates
shall restrict the select list of candidates to the extent of declared
number of vacancies.
(3) The select list drawn by the Commission shall be valid for a
period of one year from the date of receipt of the same by the
Government.
(4) The Commission shall, in addition to the select list, also prepare
a separate wait list up to 10 % of the vacancies based on the
merit of the candidates in their respective category:
Provided further that the candidates from the wait list may be
recommended to the Government only on requisition being made
by the Government if the candidates recommended earlier are
unablne to accept the offer of appointment for any reason. Such
wait list shall not be operative for any additional number of posts,
other than those advertised. The wait list shall lapse on the
declaration of the date of a subsequent examination for the same
category or after a period of one year from the date of preparation
of such wait list, whichever is earlier.”
(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
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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.
GOA PUBLIC SERVICE COMMISSION v. PANKAJ RANE & ORS.
[K. M. JOSEPH, J.]
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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
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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:
GOA PUBLIC SERVICE COMMISSION v. PANKAJ RANE & ORS.
[K. M. JOSEPH, J.]
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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
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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.
“9.
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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.
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GOA PUBLIC SERVICE COMMISSION v. PANKAJ RANE & ORS.
[K. M. JOSEPH, J.]
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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.”
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(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.
(17) Para 13 of Yogesh Yadav (supra) is extracted hereinbelow:
13. The instant case is not a case where no minimum marks are
prescribed for viva voce and this is sought to be done after the
written test. As noted above, the instructions to the examinees
GOA PUBLIC SERVICE COMMISSION v. PANKAJ RANE & ORS.
[K. M. JOSEPH, J.]
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provided that written test will carry 80% marks and 20% marks
were assigned for the interview. It was also provided that
candidates who secured minimum 50% marks in the general
category and minimum 40% marks in the reserved categories in
the written test would qualify for the interview. The entire selection
was undertaken in accordance with the aforesaid criterion which
was laid down at the time of recruitment process. After conducting
the interview, marks of the written test and viva voce were to be
added. However, since a benchmark was not stipulated for giving
the appointment. What is done in the instant case is that a decision
is taken to give appointments only to those persons who have
secured 70% marks or above marks in the unreserved category
and 65% or above marks in the reserved category. In the absence
of any rule on this aspect in the first instance, this does not amount
to changing the “rules of the game”. The High Court has rightly
held that it is not a situation where securing of minimum marks
was introduced which was not stipulated in the advertisement,
standard was fixed for the purpose of selection. Therefore, it is
not a 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
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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.
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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 Hon’ble 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 Hon’ble 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
Hon’ble 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.
 Since the appellant fails in its challenge to the impugned order,
the respondents must finally obtain redress. Accordingly, while we dismiss

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the appeal, we reiterate the directions contained in the impugned order
and it is for Appointing Authority to take the decision in accordance with
law in the matter.
 The appeal is dismissed without any orders as to costs.
 Appellant will forward the list in terms of the directions by the
High Court within a period of four weeks from today. Respondent No. 4
will take a decision on the same in accordance with law within a further
period of six weeks from the date of the receipt of the list from the
appellant.
Devika Gujral
Appeal dismissed.
(Assisted by : Mahendra Yadav, LCRA)
GOA PUBLIC SERVICE COMMISSION v. PANKAJ RANE & ORS.
[K. M. JOSEPH, J.]