Supreme Court of India
SALAM SAMARJEET SINGHversusHIGH COURT OF MANIPUR AT IMPHAL.& ANR.
- Citation
- [2016] 9 S.C.R. 771
- Decided
- 7 October 2015
- Disposal
- Directions issued
- Bench
- SHIVA KIRTI SINGH
Holding
Prescribing a minimum qualifying mark for the viva‑voce during the recruitment does not constitute an impermissible alteration of the selection criteria and is permissible under the residuary power of the recruiting authority, leading to dismissal of the petition.
Summary
The petitioner, Salam Samarjeet Singh, was the sole candidate to clear the written examination for the District Judge (Entry Level) post under the Manipur Judicial Service Rules, 2005, but was declared unsuccessful in the viva‑voce because the High Court, shortly before the interview, resolved that a minimum of 40% marks was required to pass. The Supreme Court examined whether this mid‑process imposition of a cut‑off altered the selection criteria prohibited by the Rules, whether the High Court possessed the residuary authority to prescribe such a requirement, and whether the petitioner was entitled to appointment. By a majority, the Court held that the High Court’s action was within its statutory power and did not constitute an impermissible change of the rules, and therefore dismissed the petition. The matter was referred to a larger bench for final adjudication. The dissenting judge held the opposite view, finding the change unlawful and granting relief.
Issues considered
- Whether prescribing a minimum qualifying mark of 40% for the viva‑voce during the ongoing recruitment process amounts to an impermissible change in the selection criteria under the Manipur Judicial Service Rules.
- Whether the High Court, under clause 1(3) of Schedule B of the Rules, has the authority to prescribe additional steps such as a cut‑off mark for the interview.
- Whether the imposition of the cut‑off violates the principles of natural justice and Articles 14 and 16 of the Constitution.
- Whether the petitioner, as the sole successful candidate in the written exam, acquires any indefeasible right to appointment.
- Whether the recommendations of the Shetty Commission (no cut‑off for viva‑voce) are binding on the selection process.
- Whether amendment of the Rules after the commencement of the selection process can affect the outcome.
Legislation cited
- Constitution of Indias. Article 234, s. Article 309, s. Article 32
Subjects
judicial recruitmentselection criteriaviva voce cut‑offchange of rulesnatural justiceManipur Judicial Service RulesArticles 14,16,32residuary powerrules of the game
Judgment
[2016] 9 S.C.R. 771
SALAM SAMARJEET SINGH A
v.
HIGH COURT OF MANIPUR AT IMPHAL.& ANR.
(Writ Pe~ition (C) No. 294 of2015)
OCTOBi;:R 07, 2016 B
[SHIVA KIRTI SINGH AND R. BANUMATHI, JJ.]
Judiciary .:... Judicial Service - Selection - Change in selection
criteria in the midst of selection process by adding an additional
eligibility condition/requirement - Permissibility - Manipur Judicial
" Services Grade-I - Selection for appointment to the post of District
c
Judge (Entry Level) - Respondent-High Court prescribed cut-off/
minimum quali.fYing marks for viva-voce (interview) only a few days
before viva-voce - Petitioner, lone candidate declared unsuccessful
in viva-voce - Whether such prescription 'of minimum qualifying
marks for viva-voce during the course of selection process amounted D
to change in the criteria by adding an additional requirement, as
initially (i.e. before the commencement of selection process) minimum
quali.fYing marks were prescribed only for written examination and
not for viva-voce - In view of difference of opinion, matter referred
to appropriate Bench - Manipur Judicial Service Rules, 2005 -
E
Service law - Selection.
Referring the matter to appropriate Bench, the Court
PERR. BANUMATHI, J.: ·
HELD: 1.1 As seen from the Manipur Judicial Service
Rules, 2005 - under the head-"EVALUATING PERFORMANCE F
IN COMPETITIVE EXAMINATION FOR JUDICIAL
SELECTION"; a scheme of converting the numerical marks of
each question into an l,lppropriate grade, according to the formula
given in the table and re-converting into grades, is stipulated._ In
.the table, th~ percentage of marks and Grade prescribed that G
marks below 40% is Grade 'F' which means 'Fail' and its Grade
Value is '0'. The respondent-High Court maintained that the
Full Court decision prescribing minimum" 40% marks in the
interview/viva-voce was taken in order to. introduce consistency
in the criteria of evaluating perfor~ance of candidates in written
H
771
772 SUPREME COURT REPORTS [2016] 9 S.C.R.
A examination and interview/viva-voce. Since the MJS Rules
already stipuiated that less than 40% marks is Grade 'F' with
Grade Value '0', it was implicit in the Rules that for ·a 'pass' in -
the examination, 40% minimum marks need to be obtained,
though of course as per MJS Rules, this is for the cumulative
Grade Value obtained in the· written examination and the
B
interview/viva-voce examination. Keeping in view the MJS Rules,
in particular, the table converting numerical marks into Grades
and the final Select List that is prepared by adding cumulative
grade value obtained in the written examination and the interview/
· viva-voce, fixing 40'.'fo for interview/viva-voce out of total marks
C of59 is in consonance with MJS Rules and it would not amount
to change in the criteria of selection in the midst of selection ·
process. [Para 14][782-G-H; 783-A-D]
1.2 Further Clause 1(3), General Instructions of the MJS
Rules reserves a right in favour of the High Court which enables
p the High Court to resort to the procedures, in addition to, what
has been specifically laid down in the Rules. It provides that "all
necessary steps not providedfor in these Rules for recruitment under
these Rules shall be decided by the Recruiting Authority". Having
regard to the aforesaid provision; the respondent cannot be faulted
with, in prescribing cut-off marks for the interview/viva-voce. The
E object of conducting interview/viva-voce examination was rightly
stated in the Rules to assess suitability of the candidate by judging
the mental alertness, knowledge of law, clear and original
exposition, intellectual depth and th~ like. The Rules further
stipulated a vigorous and objective grade value exercise for the
F interview/viva-voce examination as well. Keeping in view the
Rules and having regard to the seniority of the post which is
. District Judge (Entry Level), the respondent cannot. be faulted
with for exercising its residuary right reserved in its favour by
prescribing cut-off marks for the interview. [Para 15][783-D-G]
G Hemani Malhotra Etc. v. High Court of Delhi (2008) 7
SCC 11 : 2008 (5) SCR 1066; K. Manjusree v. State
of Andhra Pradesh & Anr. (2008) 3 SCC 512 : 2008
(2) SCR 1025 - held inapplicable.
Te} Prakash Pathak & Ors. v. Rajasthan High Court &
Ff Ors. (2013) 4 SCC 540; Ku/winder Pal Singh & Am:
SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 773
AT IMPHAL & ANR.
v. State of Punjab & Ors. (2016) 6 SCC 532 -: relied A ·
on.
Madan Lal & Ors. v. State of J & K & Ors. (1995) 3
SCC 486 : 1995 (1) SCR 908; State of Haryana v.
Subash Chander Marwaha & Ors. (1974) 3 SCC 220 :
1974 (1) SCR 165;. Ramesh Kumar v. High Court of B
Delhi & Am: (2010) 3 sec 104 : 2010 (2) SCR 256;
All India Judges 'Association v. Union of India & Ors.
(2002) 4 SCC 247 : 2002 (2) SCR 712 - referred to.
PER SHIVA KIRTI SINGH, J.:(Dissenting)
HELD: 1.1 The Manipur Judicial Service Rules, 2005 and c
the instructions clearly demonstrated that there was no cut-off
mark or pass mark for the viva voce examination in the past and
therefore the High Court on 12.01.2015 made a specific Resolution
that no one shall be declared.passed and selected for appointment
unless he secul"ed minimum 40% in the interview (viva voce). D
This powel" to add to the Rules is clail!led from the pl"ovisions of
· sub-rule (3) of Rule 1 of Schedule 'B' of the Rules empowering
the recmitment authority to take "all necessary steps not pl"ovided ·
fol" in these Rules fol" recmitment under these Rules ......". The
Resolution of the High Coul"t on 12.01.2015 ran counter to
expl"ess provision in the Rules as to how the final merit list was E
to be pI"epaI"ed by combining the marks of both the examinations.
Not providing any pass mark for the viva voce while so providing
fol" the written examination clearly indicated that the Rules
delibel"ately chose.not to pl"escribe ant cut-off fol" the viva.voce.
The explanation fol" the same lies in the 1"ecomiilendatio"1S made F
in this regard by the Shetty Commission. The Rules al"e almost
·verbatim copy of most of the recommendations in respect of such
examination fol" 1"ec1"liitment. Clearly, they also followed the
I"ecommendation of the Shetty Commission that thel"e should not
be any cut off 01" fail maI"ks fol" the viva voce examination. Such
omission was thus cleal"ly deliberate to facilitate the intended G
!"esult. Thel"e was no gap OI" vacuum hel"e and therefol"e Clause
1(3) of th~ Rules is not attracted. Hence, the Rules could not
have been altel"ed by a Resolution taken by the Full Coul"t. (Para
7] (795-C-H]
774 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 1.2 In the aforesaid facts and circumstances, the impugned
act of bringing about change in the selection procedure by
providing minimum marks for interview or viva voce test in midst
of the selection process which has already been ·initiated amounts
to changing the rules of the game and is hence impermissible.
[Para 8](796-C-D]
B
K Manjusree v. State of Andhra Pradesh & Anr. (2008)
3 SCC 512 : 20!)8 (2) SCR 1025; Hemani Malhotra
Etc. v. HiKh Court of Delhi (2008) 1 SCC 11 : 2008 (5)
SCR 1066 - relied- on.
c 1.3 The High Court did not have the power to change the
scheme of the rules which prescribed pass marks only for the
written examination, deliberately omitted the same for viva voce
examination and warranted final results after adding both the
marks. If for the sake of arguments, such power is conceded
even then the power could not have been exercised to change
D the rules of the game when petitioner alone was left in the arena
and could not have been disqualified except by changing the-rules
midway. The statutory rules did prescribe a particular mode of
selection which did not require any pass mark for the viva voce
examination and it had to be given strict adherence accordingly,
E at least till the ongoing recruitment process got concluded. Since
the procedure was already p"rescribed by the Rules, in the present
case there was clear impediment in law in the way of the High
Court in proceeding to lay down minimum pass mark for the viva
voce test which was meant only for the petitioner as he was the
lone candidate successful in the written examination. The
F petitioner was clearly prejudiced and although no case of bias
has been pleaded, the imp,1gned action would validly attract the
criticism of malice in law. The viva voce result of the petitioner
dated 16.02.2015 showing him as 'unsuccessful' shall stand
quashed. [Paras 8, 12][796-G; 797-A, B-D; 799-B-C]
G Tej Prakash Pathak & Ors. v. Rajasthan High Court &
Ors. (2013) 4 SCC 540; State of Haryana v. Subash
Chander Jvfarwaha & Ors. (1974) 3 SCC 220 : 1974
(1) SCR 165; Madan Lal & Ors. v. State of J & K &
Ors. (1995) 3 SCC 486 : 1995 (1) SCR 908 - held
H inapplicable.
SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 775
AT IMPHAL & ANR.
Ramesh Kumar v. High Court of Delhi & Anr: (2010) 3 A
SCC 104 : 2010 (2) SCR 256; All India Judges'
Associatio11 v. Union of India & Ors. (2002) 4 SCC 247
: 2002 (2) SCR 712; Ku/winder Pal Singh & Anr. v.
State of Punjab & Ors. (2016) 6 SCC 532 - referred
to.
B
Case Law Reference
In the Judgment of R. Bannmathi, J.:
1984 (2) SCR 200 referred to Para4
1985 (2) Suppl. SCR 367 referred to · Para4
2008 (2) SCR 1025 held inapplicable Para 21 c
..
2008 (5) SCR 1066 held inapplicable Para 21
1974 (1) SCR 165 referred to Para 21
2010 (2) SCR256 referred to Para 22
'D
(2013) 4 sec 540 relied on Para 21
2002 (2) SCR 712 referred to Paras 24, 26
1995 (1) SCR 908 referred to Para28
(2016) 6 sec 532 relied on Para30.
E
In the Judgment of Shiva Kirti Singh, J.:
2008 (2) SCR 1025 relied on Para8
2008 (5) SCR 1066 relied on Para8
2010 (2) SCR256 referred to Para 8
F
(2013) 4 sec 540 held inapplicable Para9
1974 (1) SCR 165 held inapplicable Para9
2002 (2) SCR 712 referred to ParlJ 10
1995 (1) SCR 908 - held inapplicable Para 11
G
(2016) 6 sec 532 referred to Parall
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
294of2015.
Under Article 32 of the Constitution oflndia.
H
776 SUPREME COURT REPORTS [2016] 9 S.C.R.
A Sanjay Hegde, Sr. Adv., Boboy P., Rajiv Mehta, Advs. for the
Petitioner.
Vijay Hansaria, Sr. Adv., Ms. Sneha Kalita,Avnish Pandey, Satyam
Jyoti Saikia, S. Gowthaman, Ad vs. for the Respondents.
The following Judgments and a common order of the Court were
B delivered by
R. BANUMATID, J. I. In this Writ Petition filed under Article
32 of the Constitution oflndia, the petitioner prays for issuance of a writ
of certiorari quashing the Notification dated 16'" February, 2015 issued
by the High Court of Manipur, whereby the petitioner was declared
c unsuccessful in viva-voce conducted by the High Court ofManipur for
appointment to the post of District Judge (Entry Level) in Manipur Judicial
Services Grade-I. Petitioner seeks further direction to declare his
appointment to Manipur Judicial Services Grade-I with retrospective
effect.
D 2. An advertisement was issued by the Manipur High Court vide
Notification No. HCL/A-1/2013-A&E(J)/288 da_ted 15'" May, 2013,
inviting applications for recruitment to one vacant (unreserved) post of
District Judge (Entry Level) in Higher Judicial Service through District
Judge (Entry Level) Direct Recruitment Examination, 2013. As per the
E conditions prescri_bed in the aforesaid advertisement, the petitioner being
eligible applied for the said post under the category of 'Scheduled Caste'.
Examination was held on 21 ", 22"d & 23rd July, 2013 and the petitioner
also appeared in the same. The High Court of Manipur issued a
Notification dated 17'" October, 2013 stating therein that none of the
candidates had secured the minimum qualifying marks in the said
F Examination. The marks obtained by all the candidates who appeared in
the said examination were uploaded on the website of the High Court of
Manipur on 29'" January, 2014. From the result made available on the
website of the High Court, the petitioner learnt that he had scored 52.8%
and that he was eligible for the interview/viva-voce as per the
G advertisement dated 15'" May, 2013 and Schedule "B'' of the Manipur
Judicial Service Rules, 2005, (for short 'the MJS Rules') as he belongs
to the Scheduled Caste community of the State ofManipur. The petitioner
had given a representation on 4'" February, 2014 to the High Court for
reviewing the Notification dated 17'" October, 2013 issued by the High
Court of Manipur. In response to petitioner's representation, the High
H
SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 777
AT IMPHAL & ANR. [R. BANUMATHI, J.]
Court issued a corrigendum dated 7m February, 2014, modifying the said A
Notification by stating that only one candidate namely Shri Salam.
Samarjeet Singh (SC), petitioner herein had secured the minimum
qualifying marks in the written examination held on 21 ", 22°d and 23rd
July; 2013 for recruitment to MJS Grade-I, under direct recruitment quota
and had been found qualified for appearing in the viva-voce. lt was also
B
stated therein that the date and time for interview would be notified in
due course. Before conducting the viva-voce, the respondent High Court
held a Full Court meeting on J2th January, 2015 wherein one of the agenda
was to prescribe "qualifying marks for interview (viva-voce)". After
discussion on this agenda, the Full Court took a decision that ··no one
shall be declared pass and selected for appointment unless he c
secures minimum 40% from the interview".
3. The petitioner appeared before the Interview Committee
coinprising of the Chief Justice and two other Judges of the High Court
ofManipuron 121h February, 2015. In the interview, the petitionerobtained
18.8 marks out of 50 marks i.e. 37.6%. Since the petitioner failed to D
secure the minimum marks of 40% vide Notification dated I 6'h February,
2015 issued by the High Court, the petitioner was declared "not selected".
Aggrieved by the aforesaid Notification, the petitioner has filed this Writ
Petition, seeking a writ of c1:rtiorari to quash the Notification and another
of mandamus directing the High Court to declare him appointed to MJS
Grade-I with retro~pective effect. E
4. In the Writ Petition, petitioner has stated that the marks obtained
in the viva-voce should be merely added to the marks ()btained in the
written examination to finalize the merit list and it was not permissible to
have fixed a minimum· bench mark for the viva-voce. According to the
petitioner, his non-qualification in the interview and the impugned F
Notification dated l 61h February, 2015 pursuant thereto are in violation
of the law laid down by this Cqurt in P.K. RanUtc/1andra Iyer & Ors.
v. Union of India & Ors. (1984) 2 SCC 14land Uniesh Chandra
Shukla v. Unio1i of India & Ors. (1985) 3 SCC 721. It is further
averred that before the commencement of selection process, the Selection G
Committee prescribed minimum marks only for written examination and
that during the coi.1rsc of the selection process, it cannot change the
criteria byadding an additional eligibility condition/requirement that the
candidates shall secure miflimum ma:rJ;s in the intervie\v.
H
778 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 5. On notice, the respondents entered appearance and filed their
counter affidavit.
6. Case of the respondent-High Court is that the entire selection
process of the 2013 Examination has been conducted in a just and fair
manner following the Rules prescribed under the MJS Rules and the
B action of th~ respondents is not violative of Articles 14 and 16 of the
Constitution of India. Schedule 'B' of the MJS Rules prescribes the
minimum qualifying marks for viva-voce as 40%. It is the case of the
respondent-High Court that the minimum qualifying marks prescribed
have been further clarified in its Full Court Resolution dated 12'h January,
20 I 5 before the viva-voce was conducted by the Interview Committee,
c so as to avoid any discrepancies.
7. In its counter affidavit, the respondent-High Court has further
stated that the Recruitment Committee during the course of the interview
of the petitioner, which lasted for half an hour, did individual assessment
of the candidate in nine disciplines (each discipline carrying 5.55 marks).
D The total marks obtained by the petitioner from each member were
19.5, 19.0 and 18.0 totalling to 3 7.6%. The petitioner failed to secure the
minimum qualifying marks of 40% in viva-voce as prescribed under the
MJS Rules and hence he failed to qualify in the interview and is not
entitled to the relief soi:ght for in the Writ Petition.
E 8. We have heard learned counsel for the parties at length.
9. Learned Senior Counsel for the writ petitioner, Mr. Sanjay R.
Hegde submitted that the Full Court Resolution dated J 21h January, 2015
fixing cut-off marks - minimum 40% in the interview is an erroneous
interpretation of Evaluation of Performance given in Schedule B of the
F 2005 Rules. It was further submitted that the action of the respondents
to apply the criteria of minimum qualifying marks in the interview would
amount to change in the criteria for selection after the selection process
started. It was further submitted that the peti'tioner was never informed
about the Resolution dated J2tl' January, 2015 prescribing minimum marks
G to be secured in the interview, and the same amounts to violation of
principles of natural justice. In support of the contention that changing
the 'rules of the game' during the course of selection process would
vitiate the entire selection, reliance was placed upon Hemani Malhotra
v. High Court of Delhi (2008) 7 SCC 11 and K. Manjusree v. State
o(Andltra Pradesh & Anr. (2008) 3 SCC 512.
H
SALAM ·sAMARJEET SINGH v. HIGH COURT OF MANIPUR 779
AT IMPHAL & ANR. [R. BANUMATHI, J.]
10. Per contl'a, learned counsel for the respondent has submitted A
that Schedule B of the MJS Rules stipulates minimum qualifying marks
cumulatively for both written examination and viva-voce; and the said
minimum qualifying marks so prescribed by the Rules were further
clarified in the Full Court meeting dated 12th January, 2015 so as to avoid
any discrepancies during the viva-voce conducted by the Interview
B
Committee. It was submitted that the MJS Rules clearly stipulate ""that
all necessary steps not provided for in the Rules for recruitment
shall be decided by the Recruiting Authority" and while so, the Full
. Court Resolution dated 12'h January, 2015, fixing minimum cut-off marks
as 40% cannot amount to change in the rules of the game. It was
contended that th_e respondent has not deviated from the Rules nor has c
it adopted any different criteria for the aforesaid selection process.
11. For filling up one "unreserved" post of District Judge (Entry
Level), Grade-I in Manipur Judicial Service, by direct recruitment from
the Bar, admittedly, recruitment process was set in motion by
advertisement dated l 5'h May, 2013. Ge1ieral Instructions with respect D
to the scheme of recruitment were appended to the said advertisement.
The said instructions in the advertisement were incorporated from
Schedule 'B' 6 Competitive Examination ofManipur Judicial Services·
Rules, 2-005. As per MJS Rules, the competitive examination comprises
of two parts viz., -(i) written examination _comprising of three papers
E
each carrying 100 marks total 300 marks; (ii) interview (viva voce)
c~rrying 50 marks. General Instructions in Schedule 'B' Clause 1(3)
read as under:-
3. GENERAL INSTRUCTIONS:-
All candidates who obtain sixty percent or more marks or F
corresponding grade in the written examination shall be
eligible for viva-voce examination.
Provided that Scheduled Caste/Scheduled Tribe candidates
who obtain fifty per cent or more marks or corresponding
grade in the written examination shall be eligible for the G
viva-voce examination.
Selection of candidates shall be made on the basis of
cumulative grade value obtained in the written and viva-
voce examination.
H
780 SUPREME COURT REPORTS [2016] 9 S.C.R.
A The object of the viva-voce examination under sub-rule (I)
and (2) is to assess the suitability of the candidate for the
cadre by judging the mental alertness, knowledge of law,
clear and logical exposition, balance of judgment, skills,
attitude, ethics, power of assimilation, power of
communication, character and intellectual depth and the like
B
of the candidate.
All necessary steps not provided for in these rules
for recruitment under these Rules shall be decided
by the recruiting authority.
The mode of evaluating the performance of Grading in the
c written and viva-voce examination shall be as specified
below:
EVALUATING PERFORMANCE IN COMPETITIVE
EXAMINATION FOR JUDICIAL SELECTION
The system Operates as follows:-
D
!. The questions in the question paper may carry numerical
marks for each question. ·
2. The examiner may assign numerical marks for each sub-
question which may be totaled up and shown against
each full question in numbers.
E
3. The tabulator will then .convert the numerical marks into
grades in a seven point scale with corresponding grade
values as follows:
.,
Percentage of marks Grade· Grade Value
F Grade value
70% an.d above 0 7
65& to69% A-'- 6
60%to 64% A 5
55% to 59% ~-:- 4
G 50% to 54% B 3
45%to 49% C-r 2
40%to 44% c .
1
,.0
Belo\v4.0% F
H
SALAM'SAMARJEET SINGH v. HIGH COURT OF MANIPUR 781
AT IMPHAL & i\NR. [R. BANUMATHI, J.]
4. After converting the numerical marks of each question A
into the appropriate grade according to the formula given in
first column above the tabulator will re-convert to Grades
obtained for each question to the Grade value according to
the value given in the third column above.
B
6. What happens ifthere are several successful candidates
obtaining the same grade and the available positions are
fewer in number? How do you rank them to determine who
is to be given the job? Of course, this situation can develop
with numerical marking also where persons with one mark. c
cifhalf a mark difference are given advantage. This is unfair
given .the fact that in acfoal practice this may happen
because of the play of subjective elements on the part of
the individual examiners. What is therefore recommended
is a similar vigorous and objective grade value exercise for
the viva-voce examination as well. D
7. At the end of each day's interview the tabulator·will
convert the numerical marks assigne9 to each category into
grade and then to grade values. Thi,s will then be totalled
up and the cumulative grade value average of each
candidate interviewed will be obtained. E
9. The final selection list will be readied by combining the
cumulative grade value obtained in the written examination
and the viva-voce examination. [Emphasis added]
F
12. The above instructions for Competitive Examination For Direct
Recruitment of Grade-I Judicial Officer were inter alia incorporated in
the 2013 advertisement. On a reading of Clause I (3 )- General Instructions
in Schedule 'B', it is clear that the first respondent has reserved a
residuary right in its favour to take necessary steps which ate not
G
expressly included in the Rules. Before conducting the interview/viva-
voce of the petitioner, the High Court held a Full Court Meeting on 121h
January, 2015 wherein Agenda No.2 - "qLialifying marks for interview
(viya-voce)" was taken up for discussion. After referring to the Rules-.
. "Evaluating Performance in Competitive Examination for Judicial
Selection" and also the table for converting numerical marks into grades, H
782 SUPREME COURT REPORTS [2016] 9 S.C.R.
A the Full Court resolved that 40% marks would be the minimum qualifying
marks for the interview/viva-voce. The resolution of the Full Court
reads as under:-
MINUTES OF THE FULL COURT HELD ON
12.01.2015 IN THE CHAMBER OF
B HON'BLE THE CHIEF JUSTICE
Agenda No.2: Qualifying mark for interview (viva-voce)
Resolution: A question as to what percentage would be
the minimum qualifying marks for passing interview (viva-
voce) is discussed. The following provisions of sub-rule
C (3) ofSchedule-B ofManipur Judicial Service (MJS) Rules
were taken into consideration:
"All necessary steps not provided for i1; these Rules for
recruitment under these Rules shall be decided by the
recruitment authority. The mode of evaluating the
D performance of Grading in the written ai1d viva-voce
examination shall be as specified below:
The Full Court after considering the power conferred on
the Recruitment Authority in the above states Rules and
E
·percentage of marks with Grade Value given above resolved
that no one shall be declared _passed and selected for
appointment unless he secures minimum 40% from the
interview (viva-voce).
,..
13. Having regard to the submissions of the petitioner and the.
F
respondent, the question falling for consideration is whether prescribing
40% marks as the minimum qualifying ri1arks for the interview after
holding the written examination and before conducting the viva-voce
was within the power of.the respondents; or whether it amounts to change
in the criteria of selection in the midst of the selection process.
G
14. As seen from the MJS Rules - under the head -
''EVALUATING ·PERFORMANCE IN COMPETITIVE
EXAMINATION FOR JUDICIAL SELECTION", a scheme of
converting the numerical marks of each question into an appropriate
grade, according to the formula given in the table and re-conve11ing into
H.
SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 783
AT IMPHAL & ANR. [R. BANUMATHI, J.]
grades, is stipulated. In the table, the percentage of marks and Grade A
prescribe that marks below40% is Grade 'F' which means 'Fail' and
its Grade Value is '0'. The High Court has maintained that the Full
Court decision prescribing minimum 40% marks in the interview/viva-
voce was taken in order to introduce consistency in the criteria of
evaluating performance of candidates in written examination and
B
interview/viva-voce. Since the MJS Rules already stipulate that less
than 40% marks is Gr11de 'F' with Grade.Value '0', it is implicit in
the Rules that for a 'pass' in the examination, 40% minimum marks
need to be obtained, though of course as per MJS Rules, this is for the
cumulative Grade Value obtained in the written examination and the
interview/viva-voce examination. Keeping in view the MJS Rules, in ·c
particular, the table converting numerical marks into Grades and the
final Select List that is prepared by adding cumulative grade value
obtained in the written examinatiQn and the interview/viva-voce, it is my
considered view that fixing 40% for interview/viva-voce out of total
marks of 50 is in consonance with MJS Rules and it will not amount to
D
change in the criteri.a of selection in the midst of selection process.
15. Clause 1(3), General Instructions of the MJS Rules reserves
a right in favour of the High Court which .enables the High Court to
resort to the procedures, in addition to, what has been specifically laid
down in the Rules. It provides that "all necessary steps not provided
E
for in these Rules for recruitment under these Rules shall be decided
by the Recruiting Authority". Having regard to the aforesaid provision,
the High Court cannot be faulted with, in prescribing cut-off marks for
the interview/viva-voce. The object of conducting interview/viva-.voce
examination has been rightly stated in the Rules to assess suitability of
the candidate by judging the mental alertness, knowledge of law, clear F
and original exposition, intellectual depth and the like. The Rules further
stipulate a vigorous and objective grade value exercise for the interview/
viva~voce examination as well. K~epfog in view the ,Rules and having
regard to the seniority 6fthe post which is District Judge (Entry Level),
the High Court cannot be faulted with for exercising its residuary right
G
reserved in its favour by prescribing cut-off marks for th(! interview.
16. Contending that change in the norms for selection by introducing
the minimum marks for interview during the, selection process would
amount to change in the rules of the game, reliance was placed upon K.
Manjusree v. State ofA.P. (2008) 3 SCC 512 wherein this Court held
H
784 SUPREME COURT REPORTS [2016] 9 S.C.R.
A that selection criteria has to be adopted and declared at the time of
commencement of the recruitment process. The rules of the game cannot
be changed after the. commencement of the game. It was held that the .
competent authority, if not restrained by the statutory rules, is fully
competent to prescribe the minimum qualifying marks for written
examination as well as for interview. But such prescription must be done
B
at the time ofinitiation of selection process. Change ofcriteria of selection
in the midst of selection process is not permissible .
..__ .
17. Counsel for the Petitioner has also relied on Hemani Malhotra
v. lligli Court o{Dellti (2008) 7 SCC 11. In Hemani Malltotra's case,
the result of the written examination of the Delhi Higher Judicial Service '
c was not announced by the High Court of Delhi, and individtial
communication was sent to the petitioners therein, informing them of
their selection forthe interview. Five candidates were called for interview
on various occasions and were informed .of its postponement, i.e. the
interview first scheduled for 20.09 .2006 was later deferred to 29.11.2006,
D 07.12.2006, 23.01.2007, 05.02.2007 and was finally conducted on
27.02.2007. Meanwhile on 13.12.2006, by a Full Court Resolution,
minimum qualifying marks for the viva-voce was prescribed (55% for
General Candidates and 50% for SC and ST candidates). In such facts
and circumstances, prescribing minimum marks for the interview was
struck down along the same lines as in the case of Mm1j11shree.
E
· 18. Observing that prescribing minimum marks for the interview
was not permissible after the written test was conducted, in Hemani
Malhotra v. High Court o{Del/1i (2008) 7 SCC 11, it was held as
under:
-F "15. There is 110 manner of doubt that the authority
making rules regulating the selection can prescribe by
rules the minimum marks both for written examination
and viva-voce, but if minimum marks are not prescribed
for viva-voce before the commencement of selection
process, the authority concerned, cannot either during
G the selection process or after the selection process add
an additional requirement/qualification that the
candidate sho.uld also secure minimum marks in the
interview. Therefore, this Court is of the opinion that
prescription of minimum marks by the responden_t at
H viva-voce test was illegal. "
SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 785
AT IMPHAL & ANR. [R. BANUMATHI, J.]
19. In Hemani Malhotra, candidates were called for interview A
on various dates but no interview was held and it was deferred. In the
meanwhile minimum qualifying marks were prescribed for interview.
This is not the case before us. In this case, prior to the interview which
was conducted on l 2'h February, 2015, a Full Court meeting was held on
J2<h January, 2015 and a decision was taken prescribing minimum
B
qualifying marks for the viva-voce. Thus, it would be incorrect to contend
that prejudice was caused to the petitioner, especially when no bias is
alleged.
20. After referring to the cases of Mm1j11sree and Hemani
Malhotra, in Ramesh Kumar v. High Court o(Delhi & Anr. (2010) 3
SCC I 04, it was also held as under:-
c
15. Thus, the law on the issue can be summarised to the
effect that in case the statutory rules prescribe a
particular mode of selection, it has to be given strict
adhere(lce accorcjingly. In case, no procedure is
prescribed by the rules and there is no other impediment D
in law, the competent authority while laying down the
norms for selection may prescribe for the tests and
further specifY the minimum benchmarks for written test
as well as for viva-voce.
16. In the instant case, the Rules do not provide for any E
particular procedure/criteria for holding the tests rather
it enables the High Court to prescribe the criteria. This
Court in All India Judges' Assn. (3) v. Union of India
(2002) 4 SCC 24 7 accepted Justice She tty Co111111issio11 s
Report in this regard which had prescribed for not F
having 111i11i111u111 marks for inten•iew. The Court ji1rther
explained that to give effect to the said judgment, the
existing statutory rules may be amended. However, till
the amendment is carried out, the vacanci.:s shall be
filled as per the existing statutory rules. A similar view
has been reiterated by this Court while dealing with the G
appointment of Judicial Officers in Syed T.A.
Naqshbandi v. State of J&K (2003) 9 SCC 592 and
Malik Mazhar Sultan (3) v. U.P. Public Service
Commission (2008) 17 SCC 703. We have also accepted
the said settled legal proposition while deciding the H
786 SUPREME COURT REPORTS [2016] 9 S.C.R.
A connected cases i.e. Rakhi Ray v. High Court of Delhi
(2010) 2 sec 637 vide judgment and order of this date.
It has been clarified in Rakhi Ray v. High Court of Delhi
(2010) 2 sec 637 that where statutory rules do not
deal with a particular subject/issue, so far as the
appointment of the Judicial Officers is concerned,
B
directions issued by this Court would have binding
effect.
21. Both Hemani Malhotra and Ramesh Kumar relied upon
Manjusree to hold that prescription of minimum marks in the interview
was not permissible after the written test was conducted. After referring
c to State o(Harvana v. Subasli Cliander Marwalia and Ors. (1974) 3
SCC 220 and observing that the principles laid down in Manjusree without
any further scrutiny would not be in the larger public interest or the goal
of establishing an efficient administrative machinery, in Tej Prakasli
Patliak & Ors. v. Rajastltan High Court & Ors.(2013) 4 SCC 540
D (three Judges), this Court observed that the matter deserves consideration
by a larger Bench. In paras (12) to (15), it was held as under:-
12. If the principle of Manjusree case (2008) 3 SCC
512 is applied strictly to the present case, the respondent
High Court is bound to recruit 13 of thf! "best"
E candidates out of the 21 who applied irrespective of
their performance in the examination held. In such
cases, theoretically it is possible that candidates
· securing very low marks but higher than some other
competing candidates may have to be appointed. In our
opinion, application of the principle as laid down ilr
F Manjusree case (2008) 3 SCC 512 without any further
scrutiny would not be in the larger public interest or
the goal of establishing an efficient administrative
machinery.
13. This Court in State of Haryana v. Subash Chander
G Marwaha (1974) 3 SCC 220 while dealing with the
recruitment of Subordinate Judges of the Punjab _Civil
Services (Judicial Branch) had to deal with the situation
where the relevant rule prescribed minimum qyalifYing
m,arks. The recruitment was for filling up of 15
H vacancies. 40 candidates secured the minimum
SALAM SAMARJEET SlNGH v. HlGH COURT OF MANlPUR 787
AT IMPHAL & ANR. [R. BANUMATHI, J.]
qualifying marks(45%). Only 7 candidates who secured A
55% and above marks were appointed and the
remaining vacancies were kept unfilled. The decision
of the State Government not to fill up the remaining
vacancies in spite of the availability of candidates who
secured the minimum qualifying marks was challenged.
B
The State Government defended its decision not to fill
up posts on thf! ground that the decision was taken to ·
maintain the high standards of competence in judicial
service. The High Court upheld the challenge and issued
a mandamus. In appeal, this Court reversed dnd opined
that the candidates securing minimum qualifying marks c
at an examination held for the purpose of recruitment
into the service of the State have no legal right to be
appointed. In the context, it was held: (Subash Chander
_Marwaha case, (1974) 3 SCC 220 p. 227, para 12)
"12. ... In,a case where appointments are made by D
. selecti~n from q number of eligible candidates it is
open to the Government with a view to maintai11
high standm:ds of competence to fix a score which
is 111uch higher than the one required for more (sic
mere) eligibility. "
E
14. Unfortunately, the decision in S~1bash Chander
Marwaha (1974) 3 SCC 220 does not appear to have
been brought to the notice of Their Lordships in
Manjusree-(2008) 3 SCC 512. This Court in Manjusree
(2008) 3 SCC 512 relied upon P.K. Ramachandra Iyer
v. Union of India (1984) 2 SCC 141, Umesh C.handra F
Shukla v. Uni.on of India (1985) 3 SCC 721 and
Durgacharan Mis1:a v. State of Orissa(l987) 4 SCC 646.
In none of the ·cases, was the decision in Subash
Ch(lnder Marwaha (1974) 3 SCC 220 considered.
15. No doubt .if is a salutary principle not to.permit.the G
State or its instru111e11faliiies to tinker with the "rules of
the game" insofar as the prescription of eligibility
c iteria is concerned as was done in C. Cha~nabasm'aih
v. State of MysoreL AIR 1965 SC 1293 in order to avoid .
manipulation of the recruitment process and its· results. H
788 SUPREME COURT REPORTS [2016] 9 S.C.R.
A Whether such a principle should be applied in the
context of the "rules of the game" stipulating the
procedure for selection more particularly when the
change sought is to impose a more rigorous scrutiny
for selection requires an authoritative pronouncement
of a larger Bench of this Court. We, therefore, order
B
that the matter be placed before the Hon 'hie Chief
Justice of India for appropriate orders in this regard.
Since the decision laid down in the Manjusree's case is doubted
and the matter is pending for consideration by a larger Bench, and in the
facts and circumstances of this case, it is my view that the ratio laid
c down in Manjusree and Hemani Malhotra is not applicable to the
present case.
22. This Court has laid much emphasis on interview/viva-voce in
a catena of decisions. In the recruitment for judicial services, the
importance of interview/viva-voce cannot be underestimated. Viva-voce
D is the best mode of assessing the suitability of a candidate as it brings out
the overall intellectual qualities of the candidates. In Ramesh Kumar
v. High Court of Delhi & Anr. (20 I 0) 3 SCC 104, this Court held as
under:-
"JI. In State of U.P. v. Rafiquddin (1987) Supp SCC
E 401; Krushna Chandra Sahu (Dr.) v. State of Orissa
(1995) 6 SCC I; Manjeet Singh v. ES! Cmpn. (1990) 2
SCC 367 and K.H Siraj v. High Court of Kera/a (2006)
6 SCC 395 this Court held that the Commission/Board
has to satisfy itself that a candidate had obtained such
F aggregate marks in the written test as to qualify for
interview and obtained "sufficient marks in viva-voce"
which would show his suitability for service. Such a
course is permissible for adjudging the qualities/
capacities of the candidates. It may be necessary in view
of the fact that it is imperative that only persons l)'ith a
G prescribed minimum of said qualities/capacities should
be selected as otherwise the standard ofjudiciary would
get diluted and substandard stuff may get selected.
Interview may also be the best mode of assessing the
suitability of a candidate for a particular position as it
H brings out the overall intellectual qualities of the
SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 789
AT IMPHAL & ANR. [R. BANUMATHI, J.]
candidates. While the written test will testify the A
candidates academic knowledge, the oral test can bring
out or disclose overall intellectual and personal qualities
like alertness, resourcefulness, dependability, capacity
for discussion, ability to take decisions, qualities of
leadership, etc. which are also essential for a Judicial
B
Officer.
12. Reiterating similar views, this Court has given much
emphasis on interview in Lila Dhar v. State of Rajasthan
(1981) 4 SCC 159 and Ashok Kumar Yadav v. State of
Haryana (1985) 4 SCC 417 stating that interview
"can evaluate a candidates initiative, alertness,
c
resourcefulness, dependableness, cooperativeness;
capacity for clear and logical presentation,
effectilieness in discussion, effectiveness in ineeting and
dealing with others, adaptability, judgment, ability to
make decision, ability to lead, intellectual and moral D
integrity with some degree of erro1:"
23. Full Court decision dated I 21h January, 2015 prescribing
minimum qualifying marks for viva-voce is a decision taken towards
ensuring the fair and meritorious appointment on the post advertised and .
no malafide can be attributed to the respondents for such a decision. E
Had the High Court convened the Full Court Meeting after conducting
the viva-voce and had then prescribed the minimum qualifying marks,
the contention of the petitioner would have been justified. When the
decision of the Full Court was to ensure selection of meritorious carididate,
it cannot be said that the decision of the High Court amounted to change
in the criteria of selection after tlie selection process has started. F
24. Petitioner contends that the decision of the High Court to
prescribe minimum qualification marks is against the recommendations
of the Shetty Commission and is violative of the judgment of this Court
in All India Judges' Association and Ors. v. Union oflndia am/ Ors.
(2002) 4 SCC 247. It is further argued that in the said case, the Court G
accepted Shetty Commission's Report which has recommended not
having cut-off marks in interview for the recruitment of the judicial
officers. ·
25. No doubt, Shetty Commission has recommended in its Report
H
790 SUPREME COURT REPORTS [2016] 9 S.C.R.
A that there should be no cut-off marks in the viva-voce test. Relevant
recommendation of Shetty Commission reads as under:- .
"The viva-voce test should be in a thorough and
scientific manner and it should take miything between
25 to 30 minutes for each candidate. What is
B recommended by the Commission is that the via voce
test shall carry 50 marks and there shall be no cut-off
marks in viva-voce test. "
26. Admittedly, the Shetty Commission has recommended that
the viva-voce test shall carry fifty marks and there shall be no cut-off
c marks in the viva-voce test. In All India Judges' Association case
para (37), this Court subject to various modifications in the judgment,
accepted all other recommendations of the Shetty Commission. While
there was a detailed discussion on the perks, mode ofrecruitment to the
Higher Judicial S.ervice and the proportionate percentage for promotion
as District Judges for judicial officers, limited competitive examination
D for Civil Judges (Junior Division) and percentage of direct recruitment,
there was no detailed discussion regarding the other recommendations
ofShetty Commission. As rightly contended by the learned Senior Counsel
for the respondent, All India Judges' Association case is sub silentio
on.the recommendation of Shetty Commission as to "no cut-off marks
E for the viva-voce". Contention of the petitioner that fixing cut-off marks
forthe viva-voce is in violation of the decision of this Court is not tenable.
27. Learned senior counsel for the respondents has also drawn
attention to the Judicial Service Rules of various High Courts namely,
Delhi, Maharashtra, Odisha, West Bengal and Himachal Pradesh which
F have prescribed minimum cut-off marks for the interview. Insofar as
MJS Rules are concerned, such fixing of cut-off marks in the interview/
viva-voce cannot be said to be arbitrary or ii1 violation of the decision of
this Court.
28. Yet another aspect of the matter is that the petitioner
G . participated in the selection process and only because in the final result
the petitioner being unsuccessful; he cannot turn around and contend
that the criteria for selection was changed. It is fairly well-settled that
the candidate having participated in the selection process without any
protest cannct be allowed to turn around and question the very process
having failed to qualify. Jn Mada11 Lal & Ors. v. State o(J&K & Ors.
H
. SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 791
AT IMPHAL & ANR. [R. BANUMATHI, J.]
(1995) 3 SCC 486, this Court observed:- A
"9. ... It is now well settled that if a candidate takes a
calculated chance and appears at the interview, then,
only because the result of the interview is· not palatable
to him, he cannot turn round and subsequently contend
that the process of interview was unfair.... B
I 0. Therefore, the result of the interview test on merits
cannot be successfully challenged by a candidate who
takes a chance to get selected at the said interview and
who ultimately finds himself to be unsuccessful. "
29. In the written examination, the petitioner has secured 158.50 c
out of300; in the interview/viva-voce 18.80 out of50 totalling 177.30 out
of350 i.e. 50.65%. Learned senior counsel for the petitioner submitted
that as per the existing Rules, the final selection is to be made by adding
the cumulative grade value obtained in the written examination and
interview/viva-voce examination. The petitioner having obtained
cumulative percentage of 50.65 which is equivalent to Grade 'B'; it is
contended that, had the High Court followed the Rules, the petitioner
must have been declared to have been selected and the High Court has
deliberately denied the appointment to the petitioner.
30. For the sake of argument, even assuming that the petitioner E
was successful in the selection, in my view, it would not give the petitioner
an indefeasible right to get an appointment as well. Referring to various
judgments, in Ku/winder Pal Sillgh and Another v. State of Punjab
mu/ Others (20 I 6) 6 SCC 532, this Court held as under:
10. It is fairly well settled that merely because the name F
of a candidate finds place in the select list, it would not
give him indefeasible right to get an appointment as
well. The name of a candidate may appear in the merit
list but he has no indefeasible right to an appointment
(vide Food Corporation of India " Bhanu Lodh (2005)
3 SCC 618, All India SC & ST Employees' Assn. v. A. G
Arthur Jeen (2001) 6 SCC 380 and UPSC v. Gaurav
Dwivedi (1999) 5 S'CC 180.
11. This Court again in State of Orissa v. Rajkishore
Nanda (20101 6 SCC 777 held as under: (SCC p. 783,
paras 14 & 16) H
792 SUPREME COURT REPORTS [2016] 9 S.C.R.
A "14. A person whose name appears in the select
list does not acquire any indefeasible right of
appointment. Empanelment at best is a condition
of eligibility for the purpose of appointment and
by itself does not amount to selection or create a
vested right to be appointed. The vacancies have
B
to be filled up as per the statutory rules and in
conformity with the constitutional mandate. "
31. No mandamus can be issued in favour of the petitioner as no
prejudice was caused to him. I say so because the 2013 advertisement
was issued only for one 'unreserved' post. Had somebody else been
c appointed, the grievance of the petitioner might have had substance.
Admittedly, nobody was appointed for the said post and the post remains
vacant. Subsequent developments are also relevant and noteworthy. For
filling up of three 'unreserved' posts ofMJS Grade-I, fresh advertisement
was issued on l 2'h August, 2015 by the High Cou11. The petitioner also
D applied for the said post. Because of litigation and certain directions
thereon, selection process pursuant to the said advertisement was
cancelled. In supersession of the said earlier advertisement, a fresh
advertisement was issued by the High Com1on41hAugust, 2016 seeking
applications for three 'unreserved' and one 'reserved' post ofMJS Grade-
l. The last date for the receipt of applications was 26'h August, 2016 and
E the petitioner also applied for the said post. The learned senior counsel
appearing forthe High Court submitted that the examinations are likely
to be conducted in October, 2016. When the said post of2013 examination
has now been clubbed with other vacant posts and advertised seeking
applications from the eligible candidates, the petitioner cannot seek
F mandamus seeking for appointment for the said post with retrospective
effect. The petitioner has no indefeasible right to seek appointment as
District Judge (Entry Level) in tli.e Manipur Judicial Services Grade-I.
In the facts and circumstances of the case, the petitioner is not entitled
to the n:I ief sought for.
G 32. For the foregoing discussions, the petitioner is not entitled to
the relief sought for. In the result, the Writ Petition is dismissed.
SHIVA KIRTI SINGH, J. I. I have perused the judgment written
by Banumathi, J. Since I am unable to agree with the same, I hereby
record my views on the main issues involved in the case.
H
SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 793
AT IMPHAL & ANR. [SHIVA KIRT! SINGH, J.]
2. As most of the relevant facts including the submissions of the A
rival parties as well as relevant provisions of rules have already been
extracted, I will borrow and refer from such facts and statutory provisions
where ever necessary. Only to recapitulate the seminal facts, it is noted
that the relevant advertisement for filling up a single vacancy in the post ·
of District Judge (Entry Level) by way of direct recruitment through
B
examination of2013 was published on 15.5.2013. The advertisement
disclosed that the recruitment shall be governed by the Manipur Judicial
Service (Recruitment and Conditions of Service) Rules, 2005 (for brevity,
'the Rules'). The duly filled applications were to be sent to Registrar,
High Court ofManipur at Imphal. Inter alia, it was also indicated, as is
the position in the Rules, that for being called for viva voce test a candidate c
must secure in the written examination 60% marks if he is from
unreserved category and 50% if he is of reserved category. The viva
voce was to carry 50 marks. The examination was held in July 2013.
As per initial notification dated 17 .10.2013, the Joint Registrar notified
that none of the candidates was successful in their written examination.
D
The mark sheet was published on 29.01.2014 in which petitioner being a
scheduled caste category candidate had secured more than the minimum
qualifying marks of 50%. In fact he had secured 52.8% marks. Hence
petitioner filed a representation on 04.02.2014 for reconsideration of his
result. On 07.02.2014 the High Court issued a corrigendum and declared
the petitioner as successful in the written examination. Be it noted that E
the petitioner was the only successful candidate for the unreserved single
post under contest. For almost a year the recruitment process remained
at a standstill. Through a letter dated 29.01.2015 the petitioner was
informed that viva voce will be held on 12.02.2015. The petitioner
undertook the said test. On 19.02.2015 the petitioner learnt from a notice
F
dated 16.02.2015 issued by the Joint Registrar of the High Court and
placed on the Notice Board of the High Court that the petitioner had
failed to qualify in the interview.
3. The petitioner made a request for certain informations under
the RTI Act from the concerned officer of High Court of Manipur on
21.02.2015. The informations sought for included q~1eries as to whether G
there was any pass mark/cut-off mark out of the total 50 marks for the
interview and also details of the particular rule under which he had failed
in the interview. The information was supplied on 19.03.2015 disclosing
that he had obtained 18.8% marks in the viva voce test and the cut-off
H
794 SUPREME COURT REPORTS [2016] 9 S.C.R.
A mark/pass inark is 40% out of total 50 marks for the interview. The
High Court did not provide reference to any particular rule under wh 'ch
petitioner had been found not qualified in the interview.
4. It is not in dispute and it was subsequently discovered that the
Full Court of the Manipur High Court had resolved on 12.01.2015, on!:
B a few days before interviewing the lone candidate- the petitioner, to f..x
40% as the pass mark for viva-voce. ·Since the petitioner was interviewe,1
by all the three Judges of the High Court in the viv!l voce and was
declared to have failed on account of pass marks prescribed for viva
voce examination by the Full Court on 12.01.2015, he did not have much
option but to prefer the present writ petition in this Court mainly to seek
c the relief for quashing of his viva voce result dated 16.02.2015 and for
declaration of his result for appointment to MJS Grade I with retrospective
effect from a reasonable date and/or to grant any just and equitable
relief in the facts and circumstances of the case.
5. A perusal ofrelevant informations given to the candidates in
D the advertisement, particularly the general instructions contained in
Appendix 'A' of the Scheme' of Examination clearly discloses that
scheduled caste candidates shall be eligible forthe viva voce examination
on obtaining 50% or more marks in the written examination. It is also
clearly spelt out that selection of candidates shall be made on the basis
E of cumulative grade value obtained in the written and viva voce
examination. In my considered view the statutory mandate for selection
on the basis of cumulative grade required the authorities to add the marks
. of both the examinations, prepare the merit list as per total marks for the
cumulative grade and make the selection from such merit list.
F 6. This mandate was violated for a reason that does not muster
scrutiny. Although the object of viva voce examination has been given in
some detail but that is only for the guidance of members of the Board
conducting the viva voce test. The mode of evaluating the performance
of grading in the written and viva voce examination has been indicated
in the general instructions and the same has already been noted in the
G judgment ofBanumathi, J. The grade 'F' which provides for percentage
of marks below 40% corresponds to numerical grade 'O' but beyond
that there is nothing to support the submission on behalf of the High
Court that 'F' is indicator of failure in the written examination or in the
viva voce. The cut-off mark for the written examination is separately
H provided under the Rules, to the effect that written examination will
SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 795
.AT IMPHAL & ANR. [SHIVA KIRT! SINGH, J.]
carry 200 marks and the cut-off marks should be 60% or corresponding A
grade for general candidates and 50% or corresponding grade for SC/
ST candidates. So 40% to 49% denoted by 'C' also stand for fail marks
for the written examination and therefore there is no basis to infer that
'F' standing for below 40% is a symbol of fail marks. Further when the
Rules explicitly specify the pass marks for the written examination and
B
conspicuously make no such provision in respect of viva voce examination.
rather provide to the contrary that the final selection list will be by
combining the cumulative grade value obtained in the written and the
viva voce examination, nothing can be gainsaid on the basis of evaluating
procedure alone. For the purpose of deciphering cut-off marks or pass
marks for the viva voce examination there ought to be a similar specific c
provision in the Rules. But it was not there at the relevant time. It has
been introduced much later in 2016.
7. In my considered view the Rules and the instructions clearly
demonstrate that there was no cut-off mark or pass mark for the viva
voce examination in the past and therefore the High Court on 12.01.2015 D
made a specific Resolution that no one shall be declared passed and
selected for appointment unless he secures minimum 40% in the interview
(viva voce). This power to add to the Rules is claimed from the provisions
of sub-rule (3) of Rule 1 of Schedule 'B' of the Rules empowering the
recruitment authority to take "all necessary steps not provided for in
E
these Rules for recruitment under these Rules ...... ". In my view the
Resolution of the High Court on 12.01.2015 ran counter to express
provision in the Rules as to how the final merit Iist was tci be prepared by
combining the marks of both the examinations. Not providing any pass
mark for the viva voce while so providing for the written examination·
clearly indicates that the Rules deliberately chose not to prescribe any F
cut-off for the viva voce. The explanation for the same lies in the
recommendations made in this regard by the Shetty Commission. The
Rules are almost verbatim copy of most of the recoinmendations in respect
of such examination for recruitment. Clearly, they also followed the
recommendation of the Shetty Commission that there should not be any
G
cut off or fail marks for the viva voce examination. Such omission was
thus clearly deliberate to facilitate the intended result. There was no
gap or vacuum here and therefore Clause I (3) of the Rules is not
attracted. Hence, the Rules could not have been altered by a Resolution
taken by the Full Court. We have been informed that ultimately the
Rules have been formally amended vi de notification dated 09 .03.2016 H
796 SUPREME COURT REPORTS [2016] 9 S.C.R.
A issued in exercise of powers under Article 309 read with Article 234 of
the Constitution oflndia whereby, inter alia, it has been included in the
general instructions under Schedule 'B' that candidates securing minimum
40% marks in the interview shall only be eligible to be included in the
select list. Apparently this amended rule is to come into force only in
B future from a date to be specified. But in any case it has not been made
retrospective and rightly so because such Rules governing selection
procedure for recruitment cannot be amended to affect the results after
~ the game has been played.
8. In the aforesaid facts and circumstances, the contention
c advanced on behalf of the petitioner that the impugned act of bringing
about change in the selection procedure by providing minimum marks
for interview or viva voce test in midst of the selection process which
has already been initiated amounts to changing the rules of the game
and hence impermissible, is well supported by judgment in the case of
K. Manjusrec v. State of Andhra Pradesh & Anr.' as well as in the
D case of Hemani Malhotra Etc. v. High Court ofDclhi2. In my view
once petitioner was declared as the lone candidate having passed in the
written examination, it matters little whether minimum marks for interview
were introduced before or after calling him for inte"rview. The petitioner
or any other person in his place, knowing fully well that there was no
E separate cut-off or pass mark for the viva voce, would not feel any
pressure to be extra ready for the interview. In order to ensure fairness,
after the Full Court decision on 12.01.2015 to fix 40% as pass marks for
viva voce, the petitioneroughtto have been inforn1ed of this development,
at least when intimation of date of interview was communicated to him
through letter dated 29.01.2015. Since the viva voce was held on
F 12.02.2015, he would have got some time to improve his preparations to
meet the 40% cut-off newly introduced. That was not done. In such
circumstances, I do not find any material, reason or circumstance to
distinguish the case ofK. Manjusree as well as of Hemani Malhotra.
In my considered view the High Court did not have the power to change
G the scheme of the rules which prescribed pass marks only for the written
examination, deliberately omitted the same for viva voce examination
and warranted final results after adding both the marks. If for the sake
of arguments, such power is conceded even then the power could not
have been exercised to change the rules of the game when petitioner
1
(2008) 3 sec s12
H ' (2008) 7 sec 11
SALAM SAMARJEET SINGH v. HIGH COURT OF MA~IPUR 797
AT IMPHAL & ANR. [SHIVA KIRTI SINGH, J.]
alone was left in the arena and could not have been disqualified except A
by changing the rules midway. Para 15 in the case of Hemani Malhotra
extracted earlier in the preceding judgment applies on all force like the
judgment in the case ofK. Manjusree. Learned counsel for the petitioner
has rightly placed reliance on those judgments. The judgment in the case
of Ramesh Kumar v. High Court of Delhi & Anr. 3 draws some
B
inspiration from the recommendations of Justice Shetty Commission's
Report in para 16 hut the general law already settled and stated in para
15 also clearly helps the case of the petitioner. In my view the statutory
rules did prescribe a particular mode of selection which did not require
any pass mark for the viva voce examination and it had to be given strict
adherence accordingly, at least till the ongoing recruitment process got c
concluded. Since the procedure was already prescribed by the Rules, in
the present case there was clear impediment in law in the way of the
High Court in proceeding to lay down minimum pass mark for the viva
voce test which was meant only for the petitioner as he was the lone
candidate successful in the written examination. In my view the petitioner
D
was clearly prejudiced and although no case of bias has been pleaded,
the impugned action would validly attract the criticism of malice in law.
9. For the aforesaid reasons alone, in my view, there is no need in
the present case to go into recommendations of the Shetty Commission,
even if it be conceded for the sake of arguments that State Government
E
may decide not to fill up posts if it has reasons to believe that appointing
the selected candidate would adversely affect the required standards of
competence. That stage was never arrived at in this case. Hence
reference to an issue of aforesaid nature to a larger Bench by the order
in the case ofTej Prakash Pathak & Ors. v. Rajasthan High Court
& Ors.' rendered by a Bench of three Judges will not have any effect F
on the outcome of this case. The law laid down in the case of State of
Haryana v. Su bash Chander Manvaha & Ors.5 is applicable only at
the stage when the selection process is complete and then if appointment
is refused to a selected candidate for good reasons, the candidate may
not have an indefeasible right to claim a right of appointment. This
G
course of action would be valid, subject to satisfactory answer by the
authority to any charge of arbitrariness. But as noted earlier that stage
'(2010) 3 sec 104
'(2013) 4 sec 540
' ( 1974) 3 sec 220
H
798 SUPREME COURT REP0PT<; [2016] 9 S.C.R.
A has not been reached in the case of the petitioner. He has been
disqualified by the High Court on the basis of its Full Bench Resolution
taken in the course of the selection procedure. That process in my view
must be continued and completed fairly, disregarding the subsequent
changes brought about by the High Court or subsequent amendment of
the Rules.
B
I 0. Hence while not delving into effect ofjudgment in the case of
All India Judges' Association v. Union oflndia & Ors." and leaving
the, issue open for decision in an appropriate case as to what is the
effect ofaforesaid judgment sub silentio accepting the recommendations
c of Shetty Commission's Report that there shall be no cut-off marks in
viva voce test. The Judicial Service Rules of various High Courts in my
view cannot affect the rights ofthe petitioner which have to be governed
by.the Rules on which I have already expressed my view that it
·deliberately did not provide any cut-offmarks for the viva voce test and
instead provide for preparation of final result by adding the. marks of
D written examination and viva voce test. ··
11. The law laid down in the case of Madan Lal & Ors. v. State
of J & K & Ors. 7 in my considered view.does not stand in the way of
' the petitioner. The High Court Resolution was not communicated to the
petitioner. It was neither a part of the Rules nor of the advertisement
E and hence the theory that if a candidate takes a calculated chance and
faces the selection procedure then on the result being unfavourable, he
cannot be pennitted·to turn around and challenge the process of selection
is not at all attracted. The theory rests on the hypothesis that the impugned
procedure or rule is already in public domain and the candidate must,
therefore, be aware of it when he participates. So far as the judgment in
F
the case ofKulwinder Pal Singh & Anr. v. State of Pun.iab & Ors. 8
is concerned, I am in respectful agreement with the same and with the
view expressed by Banumathi, J. that only being in the selected panel
does not give the petitioner or anybody else an indefeasible right to get
an appointment. .But the vacancies, as highlighted in paragraph 11, have
G to be filled up as per. statutory rules and in conformity with the
constitutional mandate. I do not see anything in that judgment against
the consideration of petitioner's case in accordance with law after
declaring his results by ignoring the pass mark criteria for the vivff.voce
' (2002) 4 sec 247
1
(1995) 3 sec 486
H • (2016) 6 sec 532
SALAM SAMARJEET SINGH v. HIGH COURT OF MANIPUR 799
AT IMPHAL & ANR.
ex~.1..11?tmn introduced by the High Court and then proceed as per Rules A
by adding the marks of written examination with that ~fviva voce test.
All actions of authorities must meet the test of reasonableness and in
case petitioner is not offered appointment though being the only successful
candidate, then the respondents may have to justify their action, if
challenged, on the basis of case of Kulwinder Pal Singh and similar
B
other judgments. As already indicated earlier, that stage is yet to arrive.
12. In the result, in my view the petitioner is entitled to the relief
sought for in the writ petition which is allowed in the light of discussions
made above. The viva voce result of the petitioner dated 16.02.2015
showing him as 'unsuccessful' shall stand quashed. The respondents
shall declare the result of the petitioner for appointment to MJS Grade I c
as per discussion made in this judgment forthwith and in any case within
four weeks. In the peculiar facts of the case; in my view, a decision for
appointment of petitioner to MJS Grade I with retrospective effect after
a reasonable period from date ·of the viva. voce result which was
16.02.2015 or say w.e.f. 01.04.2015 should be communicated to the D
petitioner within the aforesaid period of four weeks._ In case petitioner
is offered the appointment and joins the service, he would get wages by
way of salary etc. only from the date he starts working on the post. For
the past period he would be entitled only for notional ben_efits of increment
and length of service for pensionary benefits, as and when occasion
arises in future. The writ petition of the petitioner succeeds accordingly. E
The petitioner is held entitled to a cost ofRs.50,000/-.
ORDER
1. Since there is a difference of opiJlion between us in view of the
dissentingjudgments pronounced by us, the matter may be placed before p
appropriate Bench for final adjudication after obtaining permission of
Hon'ble the Chief Justice oflndia.
Divya Pandey Matter referred to appropriate bench.
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