SATVIR SINGH vs UOI & ORS.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 27.01.2025
Pronounced on: 17.04.2025
+ W.P.(C) 7164/2005
SATVIR SINGH …..Petitioner
Through: Mr.Kamal Mehta, Adv.
versus
UOI & ORS. …..Respondents
Through: Mr.Ruchir Mishra, Mr.Sanjiv Kr. Saxena, Mr.Mukesh Kr. Tiwari, Ms.Poonam Shukla, Ms.Reba Jena Mishra and Ms.Harshita Sharma, Advs.
CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
HON’BLE MS. JUSTICE SHALINDER KAUR
J U D G M E N T
NAVIN CHAWLA, J.
1. This petition has been filed by the petitioner, praying for the following reliefs:
a) issue a writ of certiorari and/or any other appropriate writ, order or direction of the similar nature quashing the interview proceedings for the post of Assistant Commandant held on 14.3.2005 for interviewing the petitioner.
b) issue a writ of certiorari and/or any other appropriate writ, order or direction of the similar nature quashing the declaration of the result pursuant to the interview held on 14.3.2005 whereby the petitioner is declared unsuccessful.
c) issue a writ of mandamus and/or any other appropriate writ, order or direction in the similar nature directing the respondents to constitute the independent interview board de-hors the officials from the respondent No.2 being the interested party in the entire dispute between the petitioner and the respondents.
2. This petition has a chequered history, which was duly captured by this Court in its Judgment dated 19.12.2008 passed in the present petition. Although the said Judgment has been set aside by the Supreme Court, however, for the purposes of narrating the facts in which the present petition has arisen, the relevant portion of the said judgment is being reproduced hereinbelow:
2. Pursuant to a public advertisement, the petitioner applied and was called for written examination held on 02.03.2003. In the written examination, the petitioner was declared successful as per the communication sent by the Secretary of the special Selection Board on 15.09.2003. The said communication asked the petitioner to participate in a Physical Efficiency Test (PET), interview and medical examination on 22.3.2004.
3. It appears that travails of the petitioner started thereafter, inasmuch as before conducting his PET, the petitioner was called for measurement of height, weight and chest measurement. In so far as height and chest is concerned, the petitioner met the minimum requirement but when the weight of the petitioner was taken, it is alleged, that for ulterior motives the officer who was entrusted with this responsibility made a wrong endorsement in respect of weight measurement in violation of the established procedure and the gazette notification. Even though the weight of the petitioner was within the prescribed standards being less than 71 Kg, the officer recorded that the petitioner was over-weight. He was also rude and curt and asked the petitioner to leave immediately.
4. The petitioner then filed a writ petition before this Court being WP(C) No.11298/2004. Along with the writ petition, the petitioner annexed the material in support of his allegation that he was discriminated against. This Court vide order dated 19.07.2004 directed the respondents to forthwith allow the petitioner to appear before the Board conducting the PET and to examine the petitioner once again so as to ascertain as to whether the petitioner in fact was over-weight.
5. Pursuant to the directions of the Division Bench of this Court dated 19.07.2004, the PET was carried out and the petitioner was found to be eligible for taking further tests and accordingly vide order dated 04.10.2004 passed in W.P.(C) No. 11298/2004, respondents were directed to allow the petitioner to take further tests which were necessary for the purpose of recruitment for the post. The said order is reproduced hereunder:
Heard the learned counsel appearing for the parties.
The present petition was filed by the petitioner praying for a direction to the respondents to allow the petitioner to re-appear in the medical examination including re-measurement so that the petitioner could be considered for recruitment to the post of Assistant Commandant in the Central Police Organization.
The petitioner herein qualified in the written examination that was held by the respondents. Although the petitioner qualified in the said written examination held for the purpose of recruitment to the post of Assistant Commandant yet the petitioner was disqualified on the ground of being over-weight in the measurement test held prior to the petitioner taking his physical efficiency test. Since the petitioner was disqualified being over-weight, he was not allowed to appear in the physical efficiency test. Upon going through the records and considering the entire facts and circumstances of the case, an order was passed by this Court on 19th July, 2004 allowing the petitioner to appear before the medical board, conducting the physical efficiency test, for medical examination of the petitioner and also to take his physical measurements once again so as to ascertain whether the petitioner was, in fact, over-weight. Pursuant to the said order, the petitioner once again appeared before the medical board and he was examined by the said medical board. After the said physical measurement/physical efficiency test the petitioner was not only found to be within the permissible limit of weight but he has also qualified and passed the physical efficiency test.
In view of the aforesaid position, it is ordered that the petitioner should be allowed to take further tests, which are necessary for the purpose of recruitment to the aforesaid post. If the petitioner qualifies in the said test and is found suitable in all respects and subject to his satisfying all other requirements, his case shall be considered for recruitment to one of such posts, which were advertised by the respondents. It is, however, made clear that this order is passed in the peculiar facts and circumstances of this case and the same shall not be treated as a precedent in any other case.
Petition stands allowed to the aforesaid extent and is disposed of in terms of the aforesaid order. Copy of this order be given DASTI to the counsel appearing for the parties.
6. Despite the aforesaid order, the petitioner was not called for interview by the respondents, which was the next step towards selection. The petitioner then filed a contempt petition bearing CCP No. 45/2005, notice thereof was issued to the respondents, who filed reply to the contempt petition and also preferred a review petition against the order dated 04.10.2004. The same was dismissed by this Court vide order dated 11.02.2005 and directions were issued to the respondents to comply with the order dated 04.10.2004 in letter and spirit. The said order dated 11.02.2005 passed by a Division Bench of this Court is reproduced for the sake of reference:
R.A.21/2005 In W.P.(C) 11298/2004
This review petition is filed by the respondents contending, Inter alia, that the judgment and order dated 4th October, 2004 is required to be review in view of the fact that there were 304 candidates, who were rejected on the ground of physical measurement, out of which 66 similarly situated cases as that of the writ petitioner were rejected on the ground of over-weight/under weight. It is submitted that in case the said judgment is allowed to stand, the same would create administrative difficulties and complications for the respondents.
We have heard the learned counsel appearing for the parties on he said application. In para 17 of the counter affidavit, it is stated that from 2002 and onwards measurement of weight is done by Physical Efficiency Test Board only. In support of the said contention, a copy of the physical efficiency test chart and proforma prescribed y the Union Public Service Commission are annexed as Annexure R-6 and R-7 respectively. We have carefully perused the said annexures, which are relied upon by the respondents in their counter affidavit. Para 9.4 of the format annexed thereto indicates and clearly establishes that weight would not be disqualification at the stage of physical efficiency test. However, the same is required to be assessed for its disqualification during medical examination. In the present case, weight of the petitioner was measured before the petitioner could take the physical efficiency test. In terms of the said paragraph the respondents also could not have rejected the candidature at that stage and should have waited till medical examination. Having regard to the aforesaid criteria, which is prescribed, the petitioner could not have been declared as disqualified, at that stage, as the factor of weight should have been considered, according to the own case of the respondent, during medical examination.
It is established from the records that at the relevant time when the weight of the petitioner was measured, the aforesaid proforma, prescribed by UPSC, was in operation and, therefore, the same is applicable to the facts and circumstances of the present case.
Counsel appearing for the respondent, however, has drawn our attention to para 20 of the counter affidavit. In our considered opinion the said statements instead of helping the respondents further the case of the petitioner, as it is an admitted position therein that with effect from 2003 and onwards for filling up the post of CPFs (Assistant Commandant) examination, overweight is not being considered as disqualification at the stage of physical efficiency test but during medical examination the same could be considered as a disqualification.
In that view of the matter, we are of the considered opinion that no review of our judgment and order is called for. The application has no merit and is dismissed. It is also reiterated that the order passed on 4th October, 2004 and this order are passed in the peculiar facts of the present case.
7. That even thereafter the respondents instead of complying with the orders dated 04.10.2004 and 11.02.2005 did not call the petitioner for interview even though they made a statement during the course of contempt petition that the petitioner will not be prejudiced and steps will be taken to ensure that he is able to undergo the complete training. In these circumstances, the Division Bench again passed an order dated 18.03.2005 directing the respondents to comply with the earlier orders, which order is also reproduced for the sake of reference:
Counsel appearing for the respondents submits that the review petition filed by them against the Judgment dated 4th October, 2004 has been dismissed. Adjournment is requested on behalf of the respondents on the ground that certified copy of the judgment has been applied for to enable the respondents to implement the same. Counsel for the respondents on Instructions submits that a period of four weeks may be given to enable the respondents to implement the judgment and to place status report in that behalf before this Court. Accordingly, the respondents are given further period of four weeks for placing on record the status report of compliance with the judgment.
It is pointed out on behalf of the petitioner that training of the Assistant Commandants in the B.S.F. and C.R.P.F. has already been started and that training in the I.T.B.P. has to commence shortly and the petitioner apprehends that his rights would be prejudiced on account of delay.
On the other hand, counsel for the respondents submits that the petitioner shall not be prejudiced and steps would be taken to ensure that he is able to undergo the complete training.
Renotify on 18th March, 2005.
Copy of this order be given dasti to the counsel for the parties.
8. The petitioner thereafter was allowed to participate in the interview held on 14.03.2005. However, it is the case of the petitioner that when the petitioner went to participate in the interview he was shocked and surprised to face with a hostile atmosphere inasmuch as he was asked various uncomfortable questions about the litigation before this Court pursuant to filing of a writ petition about his physical measurement and was made to understand that filing of the case is not sufficient as it was an Interview Board which has all the powers to reject his candidature.
9. The petitioner also filed an application for holding an independent Interview Board without participation of the officials of BSF who were annoyed with the petitioner on account of his approaching this Court earlier but his application filed in this regard was allowed to be withdrawn as this Court vide its order dated 22.03.2005 was of the view that the petitioner may agitate his other grievance, if any, by filing a separate writ petition.
10. The petitioner filed W.P.(C) No. 5868/2005, however as the result had not been declared at that time, the petitioner withdrew that writ petition, which was termed as premature but liberty was granted to the petitioner to file a fresh petition after the result is declared.
11. In an affidavit filed by the respondents to the earlier contempt petition dated 08.04.2005, it was informed that the petitioner could not make in the merit list in the interview held on 14.03.2005 and accordingly he could not be considered for the post of Assistant Commandant and it is thereafter, the petitioner filed the present writ petition.
3. It is the case of the petitioner that as the petitioner had challenged the authority of the respondents by not only filing repeated writ petitions but also contempt petitions against the respondents, the Interview Board constituted by the respondents, acted out of malice, both in fact and in law. It is alleged that the Board deliberately reduced the marks awarded to the petitioner in the interview so as to ensure that he does not get selected for the post.
4. The learned counsel for the petitioner submits that the petitioner had obtained 157 marks in the written examination. The cut-off marks for the last selected candidate in the Other Backward Class (OBC) Category was 251. However, the petitioner was intentionally awarded only 92 marks out of 200 in the interview so that he secures only 249 marks overall, which was less than the cut-off marks and, therefore, is not selected.
5. He submits that this Court, in its Judgment dated 19.12.2008, had perused the dossiers of the candidates and found that while the petitioner had made specific mention of his extra-curricular activities in the application form, he was awarded only 15 marks for the same, whereas the other candidates, who had not mentioned any extra-curricular activities in their application form, were awarded 30 marks out of 40 marks for the same, thereby artificially reducing the marks of the petitioner so as to not select him.
6. He further submits that the petitioner had participated in the 37th State Senior Championship held in 1993-1994 organized by the Rajasthan Volleyball Association, and his team had stood in the third position in the said competition. He submits that in terms of the Special Selection Board Guidelines, the National Cadet Corps-Games/Sports Achievement carried a weightage of 40 marks. It was further stipulated that for achievements in games and sports, weightage was to be granted only for the games and sports that were recognized by the Indian Olympic Association as per Appendix A attached thereto. Volleyball was one of the sports that was so recognized. He submits that for participation in a national tournament, 15 marks were to be allotted, and in addition thereto, if the team stood in the third place, additional 3 marks were to be awarded to the candidate. He submits that admittedly, the petitioner was awarded only 15 marks, though his team had also stood in the third place in the above competition. He submits that the petitioner should, therefore, have been awarded 3 extra marks and if the same are awarded, the petitioner would duly meet the cut-off marks as his marks would stand increased to 252.
7. We may herein itself note that as far as the first aspect concerning the award of marks under the category of Overall Assessment Including Other Curricular Activities, this Court, in its Judgment dated 19.12.2008, after considering the dossiers of all the candidates produced before it, had observed as under:
23. Applying the aforesaid principles to the facts of this case, we are satisfied that the respondents have acted with malice and have discriminated against the petitioner in granting 15 marks to the petitioner in respect of extra-curricular activities while granting more marks to other candidates which goes upto 30 even though the petitioner was candid in having specified his interest in extra-curricular activities in the relevant column while the others kept silent, yet got more marks than the petitioner. The reason for awarding low marks to the petitioner is obvious that is to keep him out of the list of selected candidates. If no special interest is specified it can be hardly be expected that the selection board would ferret out information from the candidate given the limited time period of an interview.
24. The purpose of the respondents was to find out the particular interest of the candidate in respect of extra-curricular activities which has nothing to do with the object for which they were being recruited. The assessment of a person in respect of the aforesaid column and particularly specified therein cannot be done on the basis of not providing any information i.e. by leaving the said column blank which is the case in respect of other candidates, some of whom have even been awarded 30 marks out of 40 and others who have been awarded more than the marks given to the petitioner. Thus, it is apparent, that there was a malice on the part of the respondents which certainly tantamounts to discrimination and thus brings inequality and such action is covered by Article 14 of the Constitution of India and can be struck down.
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29. In the facts of this case and taking into consideration the history of litigation, it is apparent that the numbers given in viva test out of 40 in particular head Overall assessment including other extra-curricular activities, where the petitioner has been given only 15 marks out of 40 despite his disclosing interest in other curricular activities, whereas 30 marks have been given to those who were silent in making such disclosure tantamounts to misusing/abusing the powers vested in the respondents and, thus, tantamount to arbitrariness and thus an act of discrimination qua the petitioner and is, therefore, violative of Article 14 of the Constitution of India and cannot be sustained.
30. Thus, taking into consideration the aforesaid facts, we have no hesitation in observing that it is a case where the respondents have intentionally kept the petitioner out of the select list because they were annoyed with the petitioner as he filed a writ petition challenging his rejection on the ground of his being overweight and having leveled certain allegations qua the behaviour of the respondents and the members of the Interview Board in his earlier pleadings filed by him. The apprehension expressed by the petitioner even before the result was declared is writ large in view of the overall conduct of the respondents who have tried to justify their assessment in respect of the marks given to the petitioner in respect of the curricular activities which are lowest by stating that the marks were given by the Interview Board only on the basis of oral interview without anything stated by those candidates in the relevant column or by producing any certificates in this regard. They have placed on record the photocopies of the application form signed by the petitioner and others which fortified the aforesaid position. Thus, while we do not wish to interfere in respect of the selection criteria or the procedure adopted by the respondents, we are clear in our mind that the manner in which the marking has been done by the respondents in respect of the criteria of curricular activities deserves to be deprecated, as the said criteria is apparently applied in an arbitrary manner and, thus, brings an inequality and becomes violative of Article 14 of the Constitution and cannot stand the test of judicial scrutiny. We are conscious of the fact that the selection process pertains to the year 2002 and several persons who might have already been selected may be affected by any direction which is given by us but in this regard we can only say that the other candidates who might have been benefitted by our observations which we are going to make, but having not approached us would not be benefited by the observation made by us in their petition, if any, filed subsequently.
8. Aggrieved by the above Judgment, the respondents had challenged the same in Civil Appeal No.6401/2011, titled Union of India & Ors. v. Satvir Singh. The appeal was allowed by the Supreme Court, observing and directing as under:
1. The High Court has granted the marks in the instant case, which was not called for. The High Court has not also given any particular example on the basis of which the High Court has based decision on discrimination.
2. As such, we set aside the impugned judgment and order passed by the High Court. Let the matter be heard and decided afresh by the High Court, in accordance with law, as early as possible.
9. As the Supreme Court had set aside the Judgment dated 19.12.2008 on the ground that this Court did not give any particular example on the basis of which it had based its finding of discrimination, we, by our Order dated 24.10.2024, directed the respondents to produce before us the dossiers of all the candidates who had been selected in the selection process. We reproduce the relevant portion of the said order as under:
10. As far as the other discrepancies noted by the Division Bench of this Court in its Judgment dated 19.12.2008 are concerned, we are of the opinion that the original record pertaining to the selection process, including the applications of the selected candidates, should be made available by the respondents for an inspection by the learned counsel for the petitioner. The learned counsel for the petitioner, on such inspection, shall highlight what according to him would constitute as inconsistency or show arbitrariness on part of the respondents. The record shall also be produced before this Court on the next date of hearing as well.
10. In response to the above, the learned counsel for the respondents produced before us the written instructions dated 12.12.2024 given to him, which, inter alia, stated as under:
3. In the context, it is submitted that as per available record total 1756 nos of candidates appeared in interview of AC(GD) exam out of them 228 candidates were selected and distributed among all CAPFs i.e. BSF, CRPF & ITBP, as per their choice and merit. Thereafter the dossiers including application forms of the selected candidates were sent to concerned forces i.e. BSF, CRPF & ITBP. The recruitment process of this exam was completed during the year 2003 i.e. more than twenty one years ago and at this juncture tracking of applications in respect of selected candidates from CAPFs i.e. BSF, CRPF & ITBP is not feasible.
4. In view of above, it is requested to apprise the Honble Court on next date of hearing dated 18-12-2024 to exempt the respondent for providing application forms of all selected candidate from concerned CAPFs i.e. BSF, CRPF & ITBP.
11. We are, therefore, now faced with a situation where we cannot make specific comments or provide details of the candidates whom the predecessor Bench of this Court, in its Judgment dated 19.12.2008, had found to have been given 30 marks even though they had not claimed any extra-curricular activities in their application forms; while the petitioner, who had stated NSS as an extra-curricular activity in his application form and had also submitted a certificate in support thereof, was awarded only 15 marks under the assessment in the Category of Overall Assessment Including Other Curricular Activities.
12. We, however, have the written submissions filed by the respondents on 16.12.2008, wherein the respondents had, inter alia, annexed as Annexure A a list of selected candidates in the OBC Category; as Annexure B a list of candidates of the OBC Category who scored less than 92 marks in the interview but were still selected; as Annexure C a list of candidates of the OBC Category who scored more than 92 marks in the interview but were not selected; and, as Annexure D a list of OBC candidates who scored more than 249 marks overall but were still not selected. We reproduce these lists as under:
13. A perusal of Annexure A would show that certain candidates such as Ms. Sheetal PD. Verma (Sl. No. 21), Mr. Karan Singh (Sl. No. 28), Mr.Hanuman Prasad (Sl. No. 2), Mr.Mukesh Narwariya (Sl. No.6), Mr. Naresh Kumar Yadav (Sl. No. 40), Mr. Sanjay Kumar Yadav (Sl. No. 44) and most of the other candidates who had secured less than 157 marks, were awarded marks ranging between 21 to 33. In the absence of the dossiers, we cannot now verify what extra-curricular activities these candidates claimed in their application forms to have undertaken. However, one factor is quite glaring and apparent, that is, all the candidates who were selected were awarded marks ranging from 18 (Mr.Abhay Singh Sl. No. 25) to 33 (Ms.Sheetal PD. Verma Sl. No. 21).
14. As far as Annexure B, which contains the list of OBC Category candidates who scored less than 92 marks in the interview but were still selected, the same shows that they were also awarded marks ranging from 20 to 23 under the category of Overall Assessment Including Other Curricular Activities. In fact, curiously Mr.Sanjaya Kumar Verma (Sl. No.4) is shown to have been awarded 88 marks by the Interview Board without giving any breakup of the marks awarded to him under various sub-categories that were specifically made for grading the total marks of 200 at the interview stage.
15. As regards the reliance of the respondents on Annexure C and Annexure D filed with the written submissions, in the absence of any explanation as to why these candidates were not selected despite five of them having scored 251 marks, which was the cut-off, and one of them scoring as high as 263 marks, it remains unclear and a mystery. However, what is again glaring is that all of the candidates, except the petitioner, who had scored more than 92 marks in the interview but were not selected, had been awarded more than 15 marks, that is, the marks that were awarded to the petitioner.
16. From the above, and what is the only material that is now made available to the Court by the respondents, what becomes apparent and glaring is that it is only the petitioner who scored and was awarded 15 marks under the Category of Overall Assessment Including Other Curricular Activities. All the other candidates scored more than him, with the minimum being 18 marks. If the petitioner was given even this bare minimum, as was given to the other candidates, the petitioner would have obtained the cut-off marks for the OBC Category.
17. During the course of hearing, the respondents submitted yet another chart showing the candidates who had secured less than 15 marks in the category of Overall Assessment Including Other Curricular Activities. The said chart is reproduced hereinunder:
18. The above chart, in our opinion, cannot come to the aid of the respondents. In the absence of the dossiers of these candidates, this Court is unable to comment on the reasons on which these candidates have been awarded less than 15 marks under Overall Assessment Including Other Curricular Activities. We do not even know of the marks scored by them in the written examination. By merely producing this chart without any supporting documents thereto, no reliance can be placed on the same.
19. We, therefore, find that the petitioner has been able to substantiate his plea that he was intentionally, and maliciously awarded lesser marks by the Interview Board under the category of Overall Assessment Including Other Curricular Activities to ensure that he does not obtain the cut-off marks. In this regard, we must note that his interview assessment was conducted pursuant to the orders passed by this Court and, therefore, he was singled out.
20. As regards the submission of the learned counsel for the petitioner that for the 40 marks that were to be awarded under the category of NCC-Games/Sports Achievement, the respondents themselves had laid down the specific criteria on the basis of which these marks were to be awarded, and admittedly, the respondents have not followed the said criteria. This has now been admitted by the respondents in the documents that have been submitted before us, including the application forms of some of the candidates. We reproduce the Annexure II placed before us by the respondents as under:
21. The criteria that was to be followed for the award of marks under the NCC-Games/Sports Achievement category is reproduced hereinbelow:
A. NCC-GAMES/SPORTS ACHIEVEMENT – 40 Marks
Weightage for achievements in NCC will be as follows:-
i) Certificate A1 (Jr. Division) or its equivalent in Naval and Air Wings: 2 Marks
ii) Certificate A2 (Jr. Division) or its equivalent in Naval and Air Wing : 3 Marks
iii) Certificate B (Sr. Division) or its equivalent in Naval and Air Wing : 5 Marks
iv) Certificate C (Sr. Division) or its equivalent in Naval and Air Wing: 10 Marks
For achievements in Games and Sports procedure followed will be as follows:-
Weightage will be given only for those games/sports, which are recognized by the Indian Olympic Association as per list at Appendix A. The allotment of marks will be as follows:-
(a)
Actual participation in Inter-university/Inter district tournament/meet
:
10 Marks
(b)
Actual participation in National tournament/meet
:
15 Marks
(c)
Actual participation in International tournament/meet
:
20 Marks
In addition to the above marks, members of teams/individual will be given the bonus marks for achievements as follows:-
First place/Gold Medal : 10 Marks
Second place/Silver Medal : 5 Marks
Third place/Bronze Medal : 3 Marks
22. From the above, it would be evident that the weightage of marks for NCC was to be given according to the prescribed formula. Similarly, there was weightage for participation in Inter-University/Inter-District tournaments, National tournaments, and in the International tournaments. There were separate marks to be awarded for securing first place/gold medal, second place/silver medal, and third place/bronze medal.
23. The petitioner had participated in the State-level Tournament in volleyball, which is a recognized sport, and was, therefore, entitled to 10 marks for the same. As his team had secured the third place, he was also entitled to 3 bonus marks as per the above criteria.
24. Though from Annexure-II(Colly), reproduced hereinabove, the respondents have been able to show that the other candidates, who also had NCC certificates and other sports achievements, were also awarded 10 marks and not the marks that they were entitled to in terms of the Guidelines, in our view, the same cannot come to the aid of the respondents. The respondents cannot violate their own prescribed criteria for awarding of the marks and then claim benefit of the same. Once the criteria for the awarding of marks/selection is prescribed, the respondents are bound to adhere to the same, and if they do not, the entire selection process will get vitiated and be liable to be set aside.
25. From the list of selected candidates in the OBC Category who were selected for the post of Assistant Commandant, we find that there were candidates who were awarded 02 and 05 marks under the NCC Games/Sports Achievement Category. Therefore, it is not the case of the respondents that all candidates were awarded only 10 marks irrespective of their achievements.
26. We are unable to understand as to why the respondents did not adhere to their prescribed criteria. Their submission that if the marks were to be awarded as per the prescribed criteria some candidates may have scored more than 40 marks, which was the outer limit for this Category, cannot come to the aid of the respondents as in such cases, the marks could have still been capped at 40, the outer limit prescribed for the given criteria.
27. The Supreme Court in Tej Prakash Pathak & Ors v. Rajasthan High Court & Ors., 2024 SCC OnLine SC 3184, held that the selection process cannot be changed after the commencement of the recruitment process. We may quote the relevant portion as under:
14. In various judicial pronouncements, the law governing recruitment to public services has been colloquially termed as the rules of the game. The game is the process of selection and appointment. Courts have consistently frowned upon tinkering with the rules of the game once the recruitment process commences. This has crystallised into an oft-quoted legal phrase that the rules of the game must not be changed midway, or after the game has been played. Broadly speaking these rules fall in two categories. One which prescribes the eligibility criteria (i.e. essential qualifications) of the candidates seeking employment; and the other which stipulates the method and manner of making the selection from amongst the eligible candidates.
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23. The doctrine proscribing change of rules midway through the game, or after the game is played, is predicated on the rule against arbitrariness enshrined in Article 14 of the Constitution. Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the concept of equality in all matters relating to public employment. These two articles strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles alike to all similarly situate and not to be guided by any extraneous or irrelevant considerations. [E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165] In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary State action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest. [State of Jharkhand v. Brahmputra Metallics Ltd., (2023) 10 SCC 634]
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65. We, therefore, answer the reference in the following terms:
65.1. Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;
65.2. Eligibility criteria for being placed in the select list, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness;
65.3. The decision in K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] lays down good law and is not in conflict with the decision in Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488] . Subash Chander Marwaha [State of Haryanav. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488] deals with the right to be appointed from the select list whereas K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] deals with the right to be placed in the select list. The two cases therefore deal with altogether different issues;
65.4. Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/non-arbitrary and has a rational nexus to the object sought to be achieved;
65.5. Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the rules are non-existent, or silent, administrative instructions may fill in the gaps;
65.6. Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.
28. In the present case, the respondents having deviated from the prescribed selection criteria in the middle of the selection process, could not have changed the rules of selection process. The same, therefore, vitiates the entire selection process.
29. We further find that though we may have insufficient evidence before us of the respondents having a malice in fact, there is enough evidence to find the respondents guilty of malice in law.
30. As noted herein above, the petitioner was interviewed separately and that too only because of the orders passed by this Court. The respondents, therefore, had adequate opportunity to manipulate his marks, of which we find prima facie evidence as discussed herein above. The respondents, admittedly, have also violated their own prescribed guidelines as well. In similar circumstances, the Supreme Court in P. Mohanan Pillai v. State of Kerala, (2007) 9 SCC 497, has held as under:
16. In this case allocation of marks for interview was in fact misused. It not only contravened the ratio laid down by this Court in Ashok Kumar Yadav [(1985) 4 SCC 417 : 1986 SCC (L&S) 88] and subsequent cases, but in the facts and circumstances of the case, it is reasonable to draw an inference of favouritism. The power in this case has been used by the appointing authority for unauthorised purpose. When a power is exercised for an unauthorised purpose, the same would amount to malice in law. (See Govt. Branch Press v. D.B. Belliappa [(1979) 1 SCC 477 : 1979 SCC (L&S) 39 : AIR 1979 SC 429] , Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776] and K.K. Bhalla v. State of M.P. [(2006) 3 SCC 581] )
31. Having held the above, we are faced with an unfortunate situation where the examination/selection process in question is of the year 2002. The persons who were duly selected in the selection process are not before us. However, the petitioner has been fighting this litigation for the last 23 years, seeking his fair consideration in the selection process. With the long passage of time, to give him the relief of being reconsidered for selection would result in administrative chaos. There would be people who would be senior to him, having gained promotion in the meantime; and there would be issues of his pay fixation; seniority and other related issues.
32. In such situation, we deem it proper to mould the relief that needs to be granted to the petitioner. Such power in a Writ Court was recognized by the Supreme Court in M. Sudakar v. V. Manoharan & Ors., (2011) 1 SCC 484, wherein it was as held as under:
14. The power to mould relief is always available to the court possessed with the power to issue high prerogative writs. In order to do complete justice it can mould the relief, depending upon the facts and circumstances of the case. In the facts of a given case a writ petitioner may not be entitled to the specific relief claimed by him but this itself will not preclude the writ court to grant such other relief which he is otherwise entitled. Further delay and laches do not bar the jurisdiction of the court. It is a matter of discretion and not of jurisdiction. The learned Single Judge had taken note of the relevant facts and declined to dismiss the writ petition on the ground of delay and laches.
33. Keeping in view the above, instead of directing the respondents to reconsider the petitioner for appointment to the rank of Assistant Commandant, and thereafter, if found eligible applying the criteria laid down in the year 2002, retrospectively re-fix his pay and seniority and grant him notional promotions, we deem it appropriate to award a lump sum compensation to the petitioner for the loss suffered by him due to his arbitrary rejection in the selection process. We, therefore, direct the respondents to pay compensation of Rs.15,00,000/- to the petitioner within a period of 12 weeks from today.
34. The petition is disposed of in the above terms.
NAVIN CHAWLA, J
SHALINDER KAUR, J
APRIL 17, 2025/SG/DG
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W.P.(C) 7164/2005
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