Paragraph numbers below are the court’s original numbering, recovered from the source text.
7. In Himani Malhotra v. High Court of Delhi, AIR 2008 SC 2103, this Court has held that it was not permissible for the employer to change the criteria of selection in the midst of selection process. (See also: Tamil Nadu Computer Science BEd Graduate Teachers Welfare Society (1) v. Higher Secondary School Computer Teachers Association & Ors., (2009) 14 SCC 517; State of Bihar & Ors. v. Mithi/esh Kumar, (2010) 13 SCC 467; and Arunachal Pradesh Public Service Commission & Anr. v. Tage Habung & Ors., AIR 2013 SC 1601).
8. In P. Mohanan Pillai v. State of Kera/a & Ors., AIR 2007 SC 2840, this Court has held as under : "It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be BISHNU BISWAS & ORS. v. UNION OF INDIA & ORS. 633 [DR. B.S. CHAUHAN, J.] followed."
9. The issue of the change of rule of the game has been referred to the larger Bench as is evident from the judgment in Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors., (2013) 4 sec 540.
10. However, the instant case is required to be considered in the light of the findings of facts recorded by the Courts below:- The Tribunal after appreciating the evidence on record, c recorded the following findings: "The applicant had secured 4 7 marks out of 50 in the written examination. He was given only 20 marks in the interview whereas persons like Miss Zeenath Begum, Mr. Mohsin, Mr. Bishnu Biswas, Mr. Mohan Raof, Mr. Bharati Bhusan, Mr. Dilip Bepari and others got equal marks in the interview as in the written examination or more distorting results. For instance, Mr. Bishnu Biswas got 34 marks in the written examination and was given 45 marks in the interview. Similarly, Mr. Dilip Bepari got 36 marks in the written examination and got 45 marks in the interview. In case of Shri Bishnu Biswas he was not qualified as per recruitment rules since he did not possess the prescribed 8th pass certificate for the post. Directions have been sought from the Tribunal to set aside the appointment orders of the private respondents. as per orders of 5.2.2009 and 4.6.2009."
11. The High Court considered these issues and recorded the finding of fact that undoubtedly awarding of marks in the above manner indicated lack of transparency in the matter.
12. The High Court has further held that distribution of marks equally both in the written test and in the interview is not permissible at all. In the instant case, there has been 50 marks for the written test as well as 50 marks for interview though the A rules did not envisage holding of the interview at all.
13. This Court in Ashok Kumar Yadav & Ors. etc. etc. v. State of Haryana & Ors., AIR 1987 SC 454 held that allocation of 22.2% marks for the viva voce test was excessive and unreasonably high, tending to leave room for arbitrariness. (See also : Munindra Kumar & Ors. v. Rajiv Govil & Ors., AIR 1991 SC 1607; Mohinder Sain Garg v. State of Punjab & Ors., (1991) 1 SCC 662; P. Mohanan Pillai (supra); and Kiran Gupta & Ors. etc. etc. v. State of U.P. & Ors. etc., AIR C 2000 SC 3299).
14. In Satpa/ & Ors. v. State of Haryana & Ors., 1995 Supp (1) SCC 206, this Court disapproved allocation of 85% of total marks for interview observing that such fixation was conducive to arbitrary selection. While deciding the said case the court placed reliance upon the Constitution Bench judgment in Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors., AIR 1981 SC 487, wherein the court had held that allocation of more than 15% of the total marks for the oral interview would be arbitrary E and unreasonable and would be liable to be struck down as constitutionally invalid. Thus, it is evident that the courts had always frowned upon prescribing higher percentage of marks for interview even when the selection has been on the basis of written test as well as on interview.
15. The appropriate allocation of marks for interview, where selection is to be made by written test as well as by interview, would depend upon the nature of post and no straight-jacket formula can be laid down. Further there is a distinction while considering the case of employment and of admission for an G academic course. The courts have repeatedly emphasized that for the purpose of admission in an education institution, the allocation of interview marks would not be very high but for the purpose of employment, allocation of marks for interview would depend upon the nature of post. BISHNU BISWAS & ORS. v. UNION OF INDIA & ORS. 635 [DR. B.S. CHAUHAN, J.]
16. In Mehmood Alam Tariq & Ors. v. State of Rajasthan A & Ors., AIR 1988 SC 1451, this Court had upheld fixation of 33% marks as minimum qualifying marks for viva test.
17. In State of U.P. v. Rafiquddin & Ors., AIR 1988 SC 162, this Court upheld the fixation of 35% marks as minimum qualifying marks in the viva test for selection for the recruitment to the post of a judicial magistrate.
18. In Anzar Ahmad v. State of Bihar & Ors., AIR 1994 SC 141, allocation of 50% marks for viva test and 50% marks for academic performance was upheld by this Court while C considering the appointment of Unani Medical Officer observing that court must examine as to whether allocation of such higher percentage may tend to arbitrariness.
19. In Jasvinder Singh & Ors. v. State of J&K & Ors., (2003) 2 SCC 132, this Court upheld the allocation of 20% marks for viva test as against 80% marks for written test for selection to the post of Sub-Inspector of Police. However, the Court cautioned observing that the awarding of higher percentage of marks to those who got lower marks in written test in comparison to some who had got higher marks in written examination, an adverse inference from certain number of such instances can be drawn. However, in absence of any allegation of mala fides against the Selection Committee or any Member thereof, a negligible few such instances, would not justify the inference that there was a conscious effort to bring some candidates within the selection zone.
20. In the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiation of the selection process. The marks G allocated for the oral interview had been the same as for written test i.e. 50% for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while large number of candidates got equal marks in the interview as in the written examination. Candidate who secured 34 marks in the written examination was given 45 marks in the interview. Similarly, another candidate who secured 36 marks in the written examination was awarded 45 marks in the e interview. The fact that today the so called selected candidates are not in employment, is also a relevant factor to decide the case finally. If the whole selection is scrapped most of the candidates would be ineligible at least in respect of age as the advertisement was issued more than six years ago. c Thus, in the facts of this case the direction of the High Court to continue with the selection process from the point it stood vitiated does not require interference. In view of the above, the appeals are devoid of merit and are accordingly dismissed. No costs. R.P. Appeals dismissed.