Supreme Court of India
BISHNU BISWAS & ORS.versusUNION OF INDIA & ORS.
- Citation
- 2014 INSC 241
- Decided
- 2 April 2014
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
Changing the selection criteria after the recruitment process has begun, including giving equal weight to an interview not originally provided for, is impermissible and the High Court’s direction to continue the process was not interfered with, leading to dismissal of the appeals.
Summary
The appellants were appointed to eight Group D posts after a written test and a subsequently introduced interview, each weighted at 50% despite the recruitment rules only providing for a written test. Unsuccessful candidates challenged the appointments, arguing that the employer altered the selection criteria mid‑process and that the equal weighting of interview marks lacked transparency. The Central Administrative Tribunal quashed the appointments, and the High Court modified the order by allowing the selection process to continue from the point it was vitiated. The Supreme Court held that changing the criteria after the recruitment process has begun, especially assigning equal weight to an interview not originally prescribed, is impermissible and that the High Court’s direction to continue the process does not merit interference. Consequently, the appeals were dismissed.
Issues considered
- Whether an employer can change the selection criteria, including introducing an interview and assigning equal weight, after the recruitment process has commenced.
- Whether allocating 50% marks to an interview not provided for in the recruitment rules violates principles of transparency and fairness.
- Whether the High Court’s order to continue the selection process from the point it was vitiated is valid.
Subjects
selection criteriarecruitment processinterview markstransparencyadministrative lawservice lawGroup D postsequal weightingprocedural fairness
Judgment
[2014] 4 S.C.R. 625
BISHNU BISWAS & ORS. A
V.
UNION OF INDIA & ORS.
(Civil Appeal Nos. 4255-58 of 2014)
APRIL 2, 2014
B
[DR. B.S. CHAUHAN AND J. CHELAMESWAR, JJ.)
SERVICE LAW·
Selection - To Group D posts - Interview not being part C
of the process, equal marks earmarked for written test and
interview - Held: Criterion was changed after conducting the
written test and admittedly not at the stage of initiation of the
selection process - Marks allocated for oral interview were the
same as for written test i.e. 50% for each - The manner in
which marks were awarded in the interview to candidates D
indicated lack of transparency - Some candidates were
awarded more marks in interview than they got in written test
- Direction of High Court to continue with the selection process
from the point it stood vitiated does not require interference.
Appointment of appellants to 8 group 'D' posts was E
challenged on the ground that though interview was not
part of the recruitment process, equal marks were
earmarked for written test and interview. The Central
Administrative Tribunal quashed the appointments. The
appellants filed writ petitions before the High Court, F
which modified the order of the Tribunal to the extent of
continuing the recruitment process from the point it stood
vitiated.
Dismissing the appeals, the Court
G
HELD: 1.1 This Court, time and again, has held that
It Is not permissible for the employer to change the criteria
of selection in the midst of selection process. [Para 4)
[630-G-H]
625 H
626 SUPREME COURT REPORTS [2014] 4 S.C.R.
A Himani Malhotra v. High Court of Delhi, 2008 (5 ) SCR
1066 =AIR 2008 SC 2103; Ramesh Kumar v. High Court of
Delhi & Anr., 2010 (2) SCR 256 =AIR 2010 SC 3714; P.
Mohanan Pillai v. State of Kera/a & Ors., 2007 (3 ) SCR 53 =
AIR 2007 SC 2840; Tej Prakash Pathak & Ors. v. Rajasthan
B High Court & Ors., (2013) 4 SCC 540; Tamil Nadu Computer
Science BEd Graduate Teachers Welfare Society (1) v.
Higher Secondary School Computer Teachers Association &
Ors., 2009 (10) SCR 522 = (2009) 14 SCC 517; State of Bihar
& Ors. v. Mithilesh Kumar, ·2010 (10) SCR 161 = (2010) 13
C SCC 467; and Arunacha/ Pradesh Public Service
Commission & Anr. v. Tage Habung & Ors., 2013 (2 ) SCR
1134 =AIR 2013 SC 1601 - relied on.
1.2 The courts have always frowned upon
prescribing higher percentage of marks for interview
D even when the selection has been on the basis of written
test as well as interview. In Jasvinder Singh's case, the
Court cautioned observing that in cases of awarding of
higher percentage of marks to those who got lower
marks in written test in comparison to some who had got
E higher marks in written examination, an adverse
inference from certain number of such instances can be
drawn. [para 14 and 19] [634-E; 635-D-E]
Jasvinder Singh & Ors. v. State of J&K & Ors., (2003) 2
F SCC 132; Ashok Kumar Yadav & Ors. etc. etc. v. State of
Haryana & Ors. 1985 (1) Suppl. SCR 657 = AIR 1987 SC
454; Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors.
1981 (2) SCR 79 = AIR 1981 SC 487; Munindra Kumar & Ors.
v. Rajiv Govil & Ors., 1991 (2) SCR 812 =AIR 1991 SC 1607;
G Mohinder Sain Garg v. State of Punjab & Ors., 1990 (3)
Suppl. SCR 108 = (1991) 1 SCC 662; and Kiran Gupta &
Ors. etc. etc. v. State of U.P. & Ors. etc., AIR 2000 SC 3299;
and Satpa/ & Ors. v. State of Haryana & Ors., 1995 Supp (1)
sec 206 - relied on.
H
BISHNU BISWAS & ORS. v. UNION OF INDIA & ORS. 627
1.3 The appropriate allocation of marks for interview, A
where selection is to be made by written test as well as by
interview, would depend upon the nature of post and no
straight-jacket formula can be laid down. Further, there is
a distinction while considering the case of employment
and of admission for an academic course. The courts have B
repeatedly emphasized that for the purpose of admission
in an educational institution, the allocation of interview
marks would not be very high but for the purpose.of
employment, allocation of marks for interview would
depend upon the nature of post. [para 15] [634-F-H] c
Mehmood Alam Tariq & Ors. v. State of Rajasthan &
Ors., 1988 (1) Suppl. SCR 379 =AIR 1988 SC 1451; State
of U.P. v. Rafiquddin & Ors. 1988 SCR 794 =AIR 1988 SC
162; and Anzar Ahmad v. State of Bihar & Ors., 1993 (3)
Suppl. SCR 434 =AIR 1994 SC 141 - referred to. D
1.4 In the instant case, the rules of the game were
changed after conducting the written test and admittedly
not at the stage of initiation of the selection process. The
marks allocated for the oral interview were the same as E
for written test i.e. 50% for each. The manner in which
marks were awarded in the interview to the candidates
indicated lack of transparency. The candidate who
secured 47 marks out of 50 in the written test was given
only 20 marks in the interview while large number of F
candidates got equal marks in the interview as in the
written examination. Candidate who secured 34 marks in
the written examination was given 45 marks in the
interview. Similarly, another candidate who secured 36
marks in the written examination was awarded 45 marks
G
in the interview. [para 20] [635-G-H; 636-A-B]
1.5 The fact that today the so called selected
candidates are not in employment, is also a relevant factor
to decide the case finally. If the whole selection is
scrapped most of the candidates would be ineligible at H
628 SUPREME COURT REPORTS [2014] 4 S.C.R.
A least in respect of age as the advertisement was issued
more than six years ago. Thus, in the facts of this case,
the direction of the High Court to continue with the
selection process from the point it stood vitiated does
not require interference.[para 20] [636-B-C]
B
Case Law Reference:
2010 (2) SCR 256 relied on Para 6
2008 (5) SCR 1066 relied on Para 7
c 2009 (10) SCR 522 relied on Para 7
2010 (10) SCR 161 relied on Para 7
2013 (2) SCR 1134 relied on Para 7
2007 (3) SCR 53 relied on Para 8
D (2013) 4 sec 540 relied on Para 9
1985 (1) Suppl. SCR 657 relied on Para 13
1991 (2) SCR 812 relied on Para 13
1990 (3) Suppl. SCR 108 relied on Para 13
E
AIR 2000 SC 3299 relied on Para 13
1981 (2) SCR 79 relied on Para 14
1995 Supp (1) sec 206 relied on Para 14
F 1988 (1) Suppl. SCR 379 referred to Para 16
1988 SCR 794 referred to Para 17
1993 (3) Suppl. SCR 434 referred to Para 18
(2003) 2 sec 132 relied on Para 19
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4255-4258 of 2014.
From the Judgment & Order dated 05.04.2013 of the High
Court of Calcutta in WPCT Nos. 607, 608, 609 and 610 of
H 2012.
BISHNU BISWAS & ORS. v. UNION OF INDIA & ORS. 629
Mahabir Singh, Aishwarya Bhati, Amit, Pawan Kr. Saini, A
Tarun Kaushik, B.K. Das, Sukesh Ghosh for the Appellants.
Neeraj Shekhar, R. Balasubramaniam, K.V. Jagdeshvaran,
G. Indira, Dileep Poolakkot, Harshad V. Hameed for the
Respondents.
B
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. These appeals arise out of the
common judgment and order dated 5.4.2013, passed by the
High Court of Calcutta, Circuit Bench at Port Blair in W.P.C.T. c
Nc~.607-610 of 2012 partly allowing the appeals against the
judgment and order dated 24.8.2012, passed by the Central
Administrative Tribunal, Calcutta (Circuit Bench, Port Blair)
(hereinafter referred to as the 'Tribunal') allowing the O.A.
No.124/AN/2010 and quashing the· appointment orders dated 0
5.2.2009 .and 4.6.2009.
2. Facts and circumstances giving rise to these appeals
are:
A. That an advertisement dated 4.2.2008 was published E
by the respondent authorities calling for applications from
eligible candidates as well as from those who were registered
with the Employment Exchange for appointment to the 8 posts
of Group 'D' staff. The recruitment rules only provided for a
written examination having 50 maximum marks. F
B. The written examination was held on 25.1.2009 which
was given by 870 candidates out of which 573 candidates
obtained 20 and above marks.
C. A press notice dated 27.1.2009 was issued calling the G
successful candidates for interview, though such interview was
not part of the recruitment process.
D. The interviews were conducted and a final result sheet
was published. In pursuance thereto, appointment letters were H
630 SUPREME COURT REPORTS [2014] 4 S.C.R.
A issued to the appellants herein.
E. Challenging the said appointments, the unsuccessful
candidates filed Original Application before the Tribunal which
was allowed, quashing such appointments as equal marks were
earmarked for both the written examination and interview which
8
is impermissible in law and that the interview was never part of
the recruitment process and thereby ordering initiation of fresh
recruitment process.
F. The appointees/appellants challenged the said order
C before the High Court. The High Court upheld the reasoning of
the Tribunal but modified the order to the extent of continuing
the recruitment process from the point it stood vitiated.
G. In pursuance of the judgment and order of the High
0 Court, termination letters were issued to the appellants.
Hence, these appeals.
3. Shri Mahabir Singh, learned senior counsel duly
assisted by Ms. Aishwarya Bhati, learned counsel appearing
E for the appellants has submitted that the employer has a right
to prescribe for a higher qualification or a stringent test than
prescribed under the statutory rules in order to select the best
candidates and once the selection is over and the candidates
appeared without any protest, they cannot be permitted to do
F a to do a somersault and challenge the selection as a whole.
Thus, the judgments impugned i.e. of the Tribunal as well as of
the High Court are liable to be set aside.
4. Per contra, Shri R. Balasubramaniam, learned counsel
appearing for the respondents has opposed the appeals
G contending that it was not permissible for the employer to
change the rule of the game after the selection process
commenced even if the employer is entitled for prescribing a
higher qualification or a stringent test than prescribed under the
rules. In the instant case as the finding of fact has been recorded
H
BISHNU BISWAS & ORS. v. UNION OF INDIA & ORS. 631
[DR. B.S. CHAUHAN, J.]
by the courts below that there had been no transparency in A
awarding the marks in interview and the interview marks could
not be same as that of the written test, the court should not grant
any indulgence in such case. Hence, the appeals are liable to
be dismissed.
B
5. We have heard learned counsel for the parties and
perused the record.
6. This Court has considered the issue involved herein in
great detail in Ramesh Kumar v. High Court of Delhi & Anr.,
AIR 2010 SC 3714, and held as under: C
"11. In Shri Durgacharan Misra v. State of Orissa & Ors.,
AIR1987 SC 2267, this Court considered the Orissa
Judicial Service Rules which did not provide for prescribing
the minimum cut-off marks in interview for the purpose of 0
selection. This Court held that in absence of the enabling
provision for fixation of minimum marks in interview would
amount to amending the Rules itself. While deciding the
said case, the Court placed reliance upon its earlier
judgments in 8.S. Y~dav & Ors. v. State of Haryana & E
Ors., AIR 1981 SC 561, P.K. Ramachandra Iyer & Ors.
v. Union of India & Ors., AIR 1984 SC 541 and Umesh
Chandra Shukla v. Union of India & Ors., AIR 1985 SC
1351 wherein it had been held that there was no "inherent
jurisdiction" of the Selection Committee/Authority to lay F
down such norms for selection in addition to the procedure
prescribed by the Rules. Selection is to be made giving
strict adherence to the statutory provisions and if such
power i.e. "inherent jurisdiction" 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 G
likely to cause irreparable and irreversible harm.
12. Similarly, in K. Manjusree v. State of A.P., AIR 2008
SC 1470, this Court held that selection criteria has to be
adopted and declared at the time of commencement of the H
632 SUPREME COURT REPORTS (2014) 4 S.C:R.
A recruitment process. The rules of the game cannot be
changed after the game is over. The competent authority,
if the statutory rules do not restrain, is fully competent to
prescribe the minimum qualifying marks for written
examination as well as for interview. But such prescription
B must be done at the time of initiation of selection process.
Change of criteria of selection in the midst of selection
process is not permissible.
13. Thus, the law on the issue can be summarised to the
effect that in case the statutory rules prescribe a particular
c mode of selection, it has to be given strict adherence
accordingly. In case, no procedure is prescribed by the
rules and there is no other impediment in law, the
competent authority while laying down the norms for
selection may prescribe for the tests and further specify
D the minimum benchmarks for written test as well as for viva
voce."
7. In Himani Malhotra v. High Court of Delhi, AIR 2008
SC 2103, this Court has held that it was not permissible for the
E employer to change the criteria of selection in the midst of
selection process. (See also: Tamil Nadu Computer Science
BEd Graduate Teachers Welfare Society (1) v. Higher
Secondary School Computer Teachers Association & Ors.,
(2009) 14 SCC 517; State of Bihar & Ors. v. Mithi/esh Kumar,
F (2010) 13 SCC 467; and Arunachal Pradesh Public Service
Commission & Anr. v. Tage Habung & Ors., AIR 2013 SC
1601).
8. In P. Mohanan Pillai v. State of Kera/a & Ors., AIR
2007 SC 2840, this Court has held as under :
G
"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
H prevailing on the date of vacancy should ordinarily be
BISHNU BISWAS & ORS. v. UNION OF INDIA & ORS. 633
[DR. B.S. CHAUHAN, J.]
followed." A
9. The issue of the change of rule of the game has been
referred to the larger Bench as is evident from the judgment in
Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors.,
(2013) 4 sec 540. B
10. However, the instant case is required to be considered
in the light of the findings of facts recorded by the Courts
below:-
The Tribunal after appreciating the evidence on record, c
recorded the following findings:
"The applicant had secured 4 7 marks out of 50 in the
written examination. He was given only 20 marks in the
interview whereas persons like Miss Zeenath Begum, Mr.
Mohsin, Mr. Bishnu Biswas, Mr. Mohan Raof, Mr. Bharati D
Bhusan, Mr. Dilip Bepari and others got equal marks in
the interview as in the written examination or more
distorting results. For instance, Mr. Bishnu Biswas got 34
marks in the written examination and was given 45 marks
in the interview. Similarly, Mr. Dilip Bepari got 36 marks E
in the written examination and got 45 marks in the
interview. In case of Shri Bishnu Biswas he was not
qualified as per recruitment rules since he did not possess
the prescribed 8th pass certificate for the post. Directions
have been sought from the Tribunal to set aside the F
appointment orders of the private respondents. as per
orders of 5.2.2009 and 4.6.2009."
11. The High Court considered these issues and recorded
the finding of fact that undoubtedly awarding of marks in the G
above manner indicated lack of transparency in the matter.
12. The High Court has further held that distribution of
marks equally both in the written test and in the interview is not
permissible at all. In the instant case, there has been 50 marks
for the written test as well as 50 marks for interview though the H
634 SUPREME COURT REPORTS [2014] 4 S.C.R.
A rules did not envisage holding of the interview at all.
13. This Court in Ashok Kumar Yadav & Ors. etc. etc. v.
State of Haryana & Ors., AIR 1987 SC 454 held that allocation
of 22.2% marks for the viva voce test was excessive and
unreasonably high, tending to leave room for arbitrariness.
8
(See also : Munindra Kumar & Ors. v. Rajiv Govil & Ors.,
AIR 1991 SC 1607; Mohinder Sain Garg v. State of Punjab
& Ors., (1991) 1 SCC 662; P. Mohanan Pillai (supra); and
Kiran Gupta & Ors. etc. etc. v. State of U.P. & Ors. etc., AIR
C 2000 SC 3299).
14. In Satpa/ & Ors. v. State of Haryana & Ors., 1995
Supp (1) SCC 206, this Court disapproved allocation of 85%
of total marks for interview observing that such fixation was
0 conducive to arbitrary selection. While deciding the said case
the court placed reliance upon the Constitution Bench judgment
in Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors., AIR 1981
SC 487, wherein the court had held that allocation of more than
15% of the total marks for the oral interview would be arbitrary
E and unreasonable and would be liable to be struck down as
constitutionally invalid. Thus, it is evident that the courts had
always frowned upon prescribing higher percentage of marks
for interview even when the selection has been on the basis of
written test as well as on interview.
F 15. The appropriate allocation of marks for interview, where
selection is to be made by written test as well as by interview,
would depend upon the nature of post and no straight-jacket
formula can be laid down. Further there is a distinction while
considering the case of employment and of admission for an
G academic course. The courts have repeatedly emphasized that
for the purpose of admission in an education institution, the
allocation of interview marks would not be very high but for the
purpose of employment, allocation of marks for interview would
depend upon the nature of post.
H
BISHNU BISWAS & ORS. v. UNION OF INDIA & ORS. 635
[DR. B.S. CHAUHAN, J.]
16. In Mehmood Alam Tariq & Ors. v. State of Rajasthan A
& Ors., AIR 1988 SC 1451, this Court had upheld fixation of
33% marks as minimum qualifying marks for viva test.
17. In State of U.P. v. Rafiquddin & Ors., AIR 1988 SC
162, this Court upheld the fixation of 35% marks as minimum
8
qualifying marks in the viva test for selection for the recruitment
to the post of a judicial magistrate.
18. In Anzar Ahmad v. State of Bihar & Ors., AIR 1994
SC 141, allocation of 50% marks for viva test and 50% marks
for academic performance was upheld by this Court while C
considering the appointment of Unani Medical Officer
observing that court must examine as to whether allocation of
such higher percentage may tend to arbitrariness.
19. In Jasvinder Singh & Ors. v. State of J&K & Ors., 0
(2003) 2 SCC 132, this Court upheld the allocation of 20%
marks for viva test as against 80% marks for written test for
selection to the post of Sub-Inspector of Police. However, the
Court cautioned observing that the awarding of higher
percentage of marks to those who got lower marks in written E
test in comparison to some who had got higher marks in written
examination, an adverse inference from certain number of such
instances can be drawn. However, in absence of any allegation
of mala fides against the Selection Committee or any Member
thereof, a negligible few such instances, would not justify the F
inference that there was a conscious effort to bring some
candidates within the selection zone.
20. In the instant case, the rules of the game had been
changed after conducting the written test and admittedly not at
the stage of initiation of the selection process. The marks G
allocated for the oral interview had been the same as for written
test i.e. 50% for each. The manner in which marks have been
awarded in the interview to the candidates indicated lack of
transparency. The candidate who secured 47 marks out of 50
in the written test had been given only 20 marks in the interview H
636 SUPREME COURT REPORTS [2014] 4 S.C.R.
A while large number of candidates got equal marks in the
interview as in the written examination. Candidate who secured
34 marks in the written examination was given 45 marks in the
interview. Similarly, another candidate who secured 36 marks
in the written examination was awarded 45 marks in the
e interview. The fact that today the so called selected candidates
are not in employment, is also a relevant factor to decide the
case finally. If the whole selection is scrapped most of the
candidates would be ineligible at least in respect of age as the
advertisement was issued more than six years ago.
c Thus, in the facts of this case the direction of the High
Court to continue with the selection process from the point it
stood vitiated does not require interference.
In view of the above, the appeals are devoid of merit and
D are accordingly dismissed. No costs.
R.P. Appeals dismissed.
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