Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7651 of 2012 ====================================================== Vinay Kumar Son Of Sri Sheet Basant Rout Resident Of Jagjiwan Nagar, P.S.-Bettiah, District-West Champaran .... .... Petitioner Versus 1. The High Court Of Judicature At Patna Through The Registrar General 2. The Chairman, District Legal Service Authority, West Champaran At Bettiah 3. Vivek Kumar Son Of Radhey Prasad Gupta Resident Of Mohalla Misscolt, P.S.-Motihari Town, Dist.-East Champaran .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Aditya Nath Jha, Advocate For the Respondents 1 + 2 : Mr. Binodanand Mishra, Advocate For the Respondents no. 3 : Mr. Raj Shekhar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA CAV JUDGMENT Date :- 09-10-2013 Heard learned counsel for the parties. 2. In this writ application the prayer of the petitioner reads as follows: “ Directing/ commanding the respondents to appoint the petitioner on the post of Clerk cum Typist in the office of District Legal Service Authority, West Champaran at Bettiah (respondent no.2) on the basis of the merit list/ panel prepared after written as well as oral test held for the purpose in which petitioner‟s name finds place at Sl.No.3 after quashing the appointment of respondent no.3, whose name at Sl.No.4 in the merit list.” 3. The facts giving rise to the present writ application lie in a narrow compass. An advertisement was published in the newspapers on 26.2.2011 for the post of Clerk cum Typist in the 2 office of the District Legal Services Authority, West Champaran, Bettiah and the petitioner alongwith others including respondent no.3 had filed their applications. A written test was held on 25.9.2011 and the result was published on 10.11.2011 and the candidates declared successful in the written test were called for practical typing test and interview which was held on 22.12.2011 onwards. Thereafter a meeting of the Selection Committee was held on 5.1.2012 wherein respondent no.3 was selected on the basis of his excellent performance in practical typing test. The panel prepared by the Selection Committee was thereafter sent to the Bihar State Legal Services Authority on 21.1.2012 and after the Hon‟ble Executive Chairman of the Bihar State Legal Services Authority had approved the panel on 30.1.2012 a meeting of the Appointment Committee was held on 2.2.2012 for appointing the candidates highest position in order of merit and that is how respondent no.3 came to be appointed. 4. Learned counsel for the petitioner has submitted that the petitioner had secured 41 marks in the written test as against respondent no.3 securing 29.5 marks in the written test. He has also submitted that the petitioner had secured 10.86 marks in the typing test of Hindi and English as against respondent no.3 securing 17.96 marks in the typing test. According to the petitioner, he had secured only 2 marks in oral interview as against 3 respondent no.3 securing 4 marks but in aggregate of written test, typing test and interview he had secured 53.86 marks as against respondent no.3 securing 51.46 marks and yet respondent no.3 was appointed on the basis of a strange criteria adopted by the Selection Committee which had gone to give more weightage to the marks in typing test and interview. Thus, it is the case of the petitioner that since he had obtained more marks in aggregate than respondent no.3 he ought to have been appointed in place of respondent no.3. 5. In this case a counter affidavit has been filed on behalf of respondent no.2 where the facts, as noted above, have not been disputed but a plea in justification for selection and appointment of respondent no.3 has been advanced that since the main work of Clerk cum Typist was doing typing work the Selection Committee had decided to give more weightage to marks obtained in practical typing test as well as oral interview and that is how respondent no.3 having highest marks in tying test and interview i.e. 21.96 was preferred. A justification has also been given that the aforesaid criteria adopted by the Selection Committee had also received approval of the Hon‟ble Executive Chairman of the Bihar State Legal Services Authority, Patna and therefore, the ultimate decision taken for appointment of respondent no.3 was correct and justified. 4 6. A separate counter affidavit has also been filed by respondent no.3, wherein apart from raising plea of delay in assailing the selection process and appointment of respondent no.3 it has been stated that appointment of respondent no.3 does not suffer from any flaw, inasmuch as he has secured the highest marks in typing test and oral interview. 7. Learned counsel for respondent no.3 has submitted that it was always open for the employer to lay down the norms of selection and unless they are held to be arbitrary this Court in exercise of power under Article 226 of the Constitution of India would not be required to interfere in the selection and appointment based on such justifiable norms of selection. In this regard he has placed reliance on the judgment of the Apex Court in the case of State of U.P. vs. Rafiquddin & ors., reported in 1987 (Supp) SCC 401, as well as in the case of K. Manjusree vs. State of Andhra Pradesh & anor., reported in (2008) 3 SCC 512, and in the case of Maheshwari Prasad & ors. vs. State of Jharkhand & ors., reported in 2012(2) PLJR 413 (S.C.). 8. Learned counsel appearing on behalf of respondent no.2 had adopted the submissions of the learned counsel for respondent no.3 and has also produced the original records of selection.
Legal Reasoning
9. In the considered opinion of this Court the first and 5 foremost question would be as to whether the marks obtained in the typing test and oral interview alone would have been made the basis for selection and appointment on the post of Clerk cum Typist. In other words, was the decision of the Selection Committee to exclude marks of written test altogether from consideration of selection and appointment on the post of Clerk cum Typist justified? 10. Admittedly no rule has been placed for selection and appointment on the post of Clerk cum Typist and therefore, this Court will have to decide the aforementioned issue in the light of the advertisement, which reads as follows: ^^fcgkj ljdkj Je lalk/ku foHkkx ftyk fu;kstuky;] i0 p0 csfr;k foKkiu la[;k&vks0lh0&4&6@2011 ftyk ,oa l= U;k;k/kh’k&lg&csfr;k ftyk fof/kd lsok izkf/kdkj] i0 pEikj.k …csfr;k‰ ds v/khu csfr;k ,oa cxgk vuqeaMyh; fof/k lsok vUrxZr v/kksfyf[kr inks vU; vfuok;Z ;ksX;rk a gsrq fuEu ;ksXrk,a fu/kkZfjr gS& dqy fjfDr dh la[;k fjDr;ksa dh la[;k 02 csfr;k & cxgk 01 01 osrueku 5200&20200 01 x 01 5200&20200 01 01 02 4400&7440 dz0la0 inuke 1 dyZd&lg& VkbZfiLV ’kS{kf.kd ;ksaX;rk eSfVzd 2 dyZd eSfVzd 3 fimu …pijklh‰ v"Ve oxZ mRrhZ.k Vad.k 30 ’kCn izfr feuV ,oa dEi;wVj dk Kku Vad.k&30 ’kCn izfr feuV ,oa dEi;wVj dk Kku ’kkjhfjd :i LoLF; ls pkfg, gksuk ,oa lkbZfdy pykus dh tkudkjh gksuh fdUrq pkfg, efgyk vkosfndk gsrq lkbZfdy pykus vfuok;Zrk ughaA dh 6 dqy 03 02 05 mi;qZDr in bPNqd vkosfndksa@vkosfndkvksa ls foKkiu ds izdk’ku ds 21 fnuksa ds vanj ,oa LogLrk{kfjr vkosnu i= fofgr izi= esa fucaf/kr Mkd@LihM iksLV ls ftyk ,oa l= U;k;k/kh’k lg v/;{k ftyk fof/k lsok izkf/kdkj i- pEikj.k csfr;k ds inuke ls lh/ks vkeaf=r fd;s tkrs gsA blds fy, vkosfndksa@vkosfndkvksa dks LFkkuh; fu;kstuky; esa fucaf/kr gksuk vfuok;Z gksxkA viw.kZ =qfViw.kZ@fu/kkZfjr frfFk ijkar izkIr vkosnu&i= ij dksbZ fopkj ugha fd;k tk;sxkA vkosndksa@vkosfndkvksa dks gky dk iksliksVZ lkbt QksVks vkosnu&i= ij fpidk gksuk pkfg, lkFk gh vfHkizekf.kr djk dj layXu djuk vfuok;Z gksxkA blds vfrfjDr Lo irk fy[kk fyQkQk Mkd fVdV lfgr layXu djuk vfuok;Z gksxk rkfd vki dks fyf[kr@ekSf[kd ijh{kk gsrq cqyk;k i= izsf"kr dh tk ldsA iz sf"kr vkosnu&i= ds fyQkQk ds mij ftl in gsrq vkosnu i= tek djsaxs ml in dk uke fy[kuk vfuok;Z gksxkA mDr in ds fy, vko’;d fuEu ’krsZa& 1- vkosnd dks Hkkjrh; ukxfjd gksuk pkfg,A 2- vkosnd dks fpfdRlh; :i ls LoLF; gksuk pkfg,A 3- vkosnd dks vPNs pfj= dk gksuk pkfg,A 4- mez lhek 01 tuojh 10 dks …A‰ lkekU; dksVh& 18&37 o"kZ …AA‰ fi0 tkfr&18&40 o"kZ …AAA‰ efgyk 18&42 o"kZ …AV‰ vuq0 tkfr@tutkfr 18&45 o"kZ 5- bPNqd ljdkjh lsod mfpr ek/;e ls viuk vkosnu ns ZDr in ljdkjh fu;ekuqlkj vkjf{kr gksxkA 6- ldrs gSA mi;q vko’;drkuqlkj fjfDr dks la[;k c<+k;h ;k ?kVk;h tk ldrh gSA 7- iksLVy vkMZj@cSad MzkIV lekU; dksfV& 100 :0 rFkk vks0 ch0 lh0@,l0lh0@,l0Vh0 ds fy, 25 :0 dk v/;{k] ftyk fof/k lsok izkf/kdkj] i0 pEikj.k csfr;k dks Hkqxrs; gsrq fufeZr gksuk pkfg,A 8- r‘rh; oxhZ; deZpkjh dks fgUnh] vaxzth x.khr ,oa lkekU; Kku dh 125 vadksa dh fyf[kr ijh[kk rFkk 25 vadks a dh ekSf[kd ijh{kk yh tk;xhA ftleas 10 vad ykuk vfuok;Z gksxkA vka’kq Vadd gsrq fyf[kr ijh{kk vk’kqfyfi ,oa Vad.k dh fyf[kr ijh{kk rFkk 125 vadksa ,oa ekSf[kd ijh{kk 25 vadksa dk gksxk ftlesa 10 vad ykuk mRrhZ.krk gsrq vfuok;Z gksxkA p0 oxZ0 deZpkjh ds fy, dsoy 50 vadksa dk ekSf[kd ijh{kk yh tk,xh ftlesa mRrhZ.krk ds fy, 10 vad vfuok;Z gSA blds fy, ;k=k&HkRrk vuqekU; ugha gksxkA vyx&vyx inksa gsrq vyx&vyx vkosnu nsuk vfuok;Z gksxkA** (underlining for emphasis) 11. From reading of the aforementioned advertisement and specially its underlined portion of Clause No.8 it is absolutely clear that selection was to be on the basis of the written and typing test for 125 marks and the interview of 25 marks, out of which securing of 10 marks in interview was compulsory. There was nothing in the advertisement which could have been shown that 7 for the post of Clerk cum Typist the selection was to be based only on performance in typing test and interview. It has to be, however, kept in mind that though the post in the advertisement was clearly spelt out as Clark cum Typist and Clerk but in the norms of selection in Clause 8 the post of Clerk was described as Class III post, whereas the post of Clerk cum Typist was described as „Ashulipik‟. The expression of „Ashulipik‟ would mean „Stenographer‟ but no post of Stenographer was advertised, rather the post of Clerk cum Typist was only advertised. It, however, becomes clear that whereas for Class III post of Clerk the written test was of 125 marks and the oral interview was of 25 marks in which 10 marks was to be compulsorily obtained in the oral interview, the criteria for selection for the post of Clerk cum Typist described in Clause 8 as „Ashulipik‟ was a written test and the practical typing test of 125 marks followed by oral interview of 25 marks in which the candidates had to compulsorily secure 10 marks. 12. Based on the aforementioned parameter which can be gathered from the advertisement it would be found from the counter affidavit that when the written test was held on 29.5.2011 five candidates out of ten appearing, for post of Clerk cum Typist were declared successful strictly in order of merit, out of whom Sanjeet Kumar had secured 68 out of 100, Bibhor Kumar Pandey 8 had secured 48, Vinay Kumar (petitioner) had secured 41 and Vivek Kumar Gupta (respondent no.3) had secured 29.5 in the result declared on 10.11.2011. All the aforesaid five successful candidates including the petitioner and Respondent no. 3 were called for both practical typing test and interview. Respondent no.2 has produced the copy of the result sheet which would go to show that the typing test was held for 20 marks, 10 for Hindi Typing and 10 for English Typing and 5 marks for oral interview. Thus, the norms of advertisement of a written test of 125 marks and oral interview of 25 marks was sought to be changed by reducing written test to 100 marks and oral interview to only 5 marks and the introducing 20 marks for typing test, 10 each for Hindi and English typing. 13. This Court would not, however, find the selection procedure to be vitiated only on this change of norms though it would be difficult for this Court to understand as to how the Selection Committee in that case could have applied the minimum cut off marks of 10 for interview as was prescribed in the advertisement. What would however make the selection, however, completely vitiated is the norms decided by the Selection Committee in its meeting after holding of the written test, typing test and interview that it has chosen to make a performance in typing test and interview criteria for selection and respondent no.3 9 who had secured minimum marks in aggregate was placed at the top of the merit list by introducing the concept of performance in the typing test and interview. It has to be noted that there were only four candidates whose cases were considered by the Selection Committee after holding of written test, practical typing test and
Decision
interview in the result sheet, which is Annexure „D‟ to the counter affidavit and is reproduced hereinbelow: RESULT - SHEET Total marks obtained in written test, practical typing test and Interview held for total of 2 post of Clerk cum Typist (1 for DLSA, Bettiah and 1 for SDLSC, Bagaha) Total of 25 Marks (10 marks for Hindi Typing, 10 Marks for English Typing and 5 Marks for oral Interview) Note- Total words to be typed 300 in both languages and every correct 30 words carries 1 Mark) Name of Candidate Marks Obtained in written test Total words typed Total correct words typed Total incorrect words Types Marks obtained for Correct words Eng. Hindi Eng. Hindi Eng. Hindi Eng. Hindi 2 Sanjeet Kumar Bibhor Kumar Pandey Vinay Kumar Vivek Kumar Gupta 3 68 4 170 5 30 6 162 7 20 8 8 9 10 48 111 299 84 287 27 12 41 209 157 195 131 29.5 244 317 239 303 14 5 26 14 10 162/30= 5.4 11 20/30= 0.66 84/30= 2.8 287/30= 9.56 195/30= 6.5 239/30= 7.96 131/30= 4.36 303/30= 10 Percentage of mistaken words Eng. Hindi 12 13 4.7 33.33 Total Mark obtained in (Eng.& Hindi) 10+11) 14 6.06 Marks obtained in oral intervie w Total marks (14+15) Gross Total Marks (3+16) REMAR KS 15 2 16 8.06 17 18 76.06 Disqualifie d in Practical Test 2.43 4.18 12.36 3.6 15.96 63.96 Qualified 6.69 16.55 10.86 2.04 4.41 17.96 2 4 12.86 53.86 Qualified 21.96 51.46 Qualified Sd/- Sd/- Sd/- Member 1st Member 2nd Chairman Appointment Committee cum cum A.D.J-I cum A.D.J.-II District and Sessions Judge Bettiah Bettiah West Champaran, Bettiah 14. From the aforesaid result sheet it would be also clear that when the Selection Committee had prepared its merit list it had made a grand total of written test, English and Hindi typing test and oral interview, according to which the petitioner had secured 53.86 as against respondent no.3 securing 51.46. In this background the explanation given by respondent no.2 in its counter affidavit enclosing the proceedings of the Selection 10 Committee dated 5.1.2012 has to be examined which had curiously evolved a criteria for making selection on the basis of performance in typing test and oral interview. The minutes of the meeting of the Appointment Committee dated 5.1.2012 is Annexure „E‟ to the counter affidavit and is reproduced hereinbelow: “Minutes of the meeting of Appointment Committee of the D.L.S.A. Bettiah for appointment of Class III and Class IV employees. The meeting of Appointment Committee held today on 5.1.2012 at 5.30 P.M. in the chamber of the District & Sessions Judge, West Champaran, Bettiah under his Chairmanship in which both members of the Committee participated. The Committee considered the result-sheet of candidates for the appointment on the post of clerk and clerk-cum typist falling under Class III category and peons falling under Class IV category. Having considered the result-sheet of the candidates for the post of Clerk, the Committee found that Shri Adarsh Gautam, Shri Diwakar Kumar Pandey and Shri Vishal Kumar have obtained 80.75, 77.6 and 74.5 marks respectively in written and interview and in this way Shri Adarsh Gautam has secured first position, Shri Diwakar Kumar Pandey second position and Shri Vishal Kumar third position in order of merit. The Committee resolves that the result-sheet of said candidates be sent to the State Legal Services Authority for its approval. 11 The Committee then considered the result-sheet of the candidates for the post of clerk cum typist. There are two posts to be filled up for which five candidates were called for practical typing test and oral interview. The total 25 marks allotted for the purpose are shown in the result-sheet itself. The Committee found that though Shri Vivek Kumar Gupta was at the bottom in the written test but has shown excellent performance in practical typing test as well as in oral interview. Shri Sanjeet Kumar having obtained 68 marks in written test has been disqualified in practical test making him disentitle for consideration for appointment for the said post. The Committee keeping in mind that the persons to be appointed on this post has to spend his maximum time in typing, decided that Shri Vivek Kumar Gupta though has obtained all total 51.46 marks but highest in practical typing test and in oral interview i.e. 21.96 marks as shown at serial no.4, be given preference amongst the other candidates namely Shri Bibhor kumar Pandey and Shri Vinay Kumar. The second preference be given to Shri Bibhor Kumar Pandey and third to Shri Vinay Kumar. The Committee resolves that the said views of the Committee be sent to the State Legal Services Authority with result-sheet and other relating documents, i.e. written and practical test and oral interview for consideration, approval and necessary direction. Lastly the Committee also considered the result-sheet of the candidates seeking appointment on Class IV post. There are two posts, one for D.L.S.A. Bettiah and one for S.D.S.C. Bagaha. 12 Considering the details of the mark-sheets it was found that Shri Binod Kumar, Shri Md. Hasnain Mansuri, Shri Arun Kumar and Shri Md. Javed have obtained 35.6, 34, 33 and 32 marks respectively. The Committee further resolves that their names be also sent to the State Legal Services Authority for approval. The Committee further resolves that after receipt of direction the persons having position in order of merit or the persons amongst the said candidates whose name is approved by the Hon‟ble Authority will be appointed. The Committee also resolves to send the copy of result to the State Authority with a letter of recommendation. The meeting ended in a cordial atmosphere. Sd/ Sd/ Sd/ Member 1st cum Member IInd cum Distt.& Sess.Judge cum ADJ1st ADJIInd cum Chairman, Bettiah Bettiah D.L.S.A.West Champaran, Bettiah (underlining for emphasis) 15. From the original records produced by the respondents which is in form of a file of „Bihar State Legal Services Authority, Patna‟ with the heading Appointment “West Champaran at Bettiah”, III and IV Grade and File No. APPTT “Bettiah” “24” it would be found that on 30.1.2012 the letter of the District and Sessions Judge cum Chairman, District Legal Services Authority, West Champaran at Bettiah dated 21.1.2012 seeking approval of the decision taken of the Appointment Committee in its meeting held on 5.1.2012 was placed by the 13 Member Secretary to the Bihar State Legal Services Authority before the Hon'ble Executive Chairman and he had approved the panel for two post of Clerk cum Typist by placing Vivek Kumar Gupta (respondent no.3) and Bibhor Kumar Pandey as “selected” and Vinay Kumar, the petitioner and the same was approved by the Hon'ble Executive Chairman on 30.1.2012. Before the Hon'ble Executive Chairman in the file the efficiency in Computer typing in both languages was highlighted, whereas the Computer typing was neither the criteria fixed in the advertisement nor was even the basis of the decision taken in the meeting of the Appointment Committee dated 5.1.2012. 16. In any event the authorities at the district level or at the State Legal Services Authority could not have changed the criteria for selection by altogether ignoring the marks of the written test. The written test was not a qualifying or a screening test. The marks obtained in the written test were in fact also made part of the result by taking into overall aggregate and therefore, the nature of work of Clerk cum Typist involving only mostly typing work could not have been made the basis of selection and appointment as it would amount to changing the rules of game in the midstream. 17. By-now it is well settled that whenever a selection for the post is held on the basis of competitive examination the 14 importance of written test cannot be altogether wiped off, inasmuch as the Apex Court way back in the case of Lila Dhar vs. State of Rajasthan, reported in AIR 1981 SC 1777, had gone to hold that a written test assesses a candidate‟s knowledge and intellectual quality, whereas the interview test is valuable to assess a candidate to overall intellectual and personal quality. It was in that context the Apex Court had also laid down that the written examination assesses the man‟s intellect and the interview test the man himself and “the twain shall meet” the purpose for a proper selection. Reference in this connection may also be usefully made to the judgment of the Apex Court in the case of Praveen Singh vs. State of Punjab, reported in (2000)8 SCC 633, wherein it was held that the Punjab Public Service Commission had acted arbitrarily in not considering the marks secured by the candidates in the written test while determining overall merit of the candidates and that it could not have made the marks obtained in the interview the sole guideline and criteria for selection. 18. In the present case also there is almost the similar situation like in the case of Praveen Singh (supra), inasmuch as here also ten candidates had appeared in the written test out of whom only five had qualified on the basis of cut-off marks fixed in the written test. Thus, when out of five candidates screened on the basis of performance of their written test they were called for 15 typing test and interview, their merit could not have been evaluated only on the basis of their performance in the typing test and the interview by altogether writing of marks obtained by them in the written test. 19. It has to be noted that the consequence of this decision either of the District Legal Services Authority or the State Legal Services Authority had to be suffered by none-else but the petitioner alone, inasmuch as out of four candidates the first one having the highest marks in the written test and also in aggregate was held to be disqualified in the typing test and of the rest three though the petitioner was at serial no.2 in aggregate by taking into account his performance in the written test, typing test and interview, yet he became No.3 in the panel, whereas respondent no.3 at the bottom of the list was made the first candidate, which cannot be countenanced in law. 20. The reliance placed by the learned counsel for respondent no.3 on the judgment of the Apex Court in the case of Rafiquddin (supra) is completely misplaced. That was a case where a candidate had been disqualified because he had not secured the minimum cut-off marks in the viva voce test and therefore, irrespective of his securing higher marks in aggregate he was found to be disqualified in view of the provisions made in the Rules requiring securing of minimum cut-off marks in the viva 16 voce test as would be evident from the following passage of the judgment: “The aforesaid rules show that the Commission was required to prepare a list of candidates approved by it for appointment to the service. Rule 19 provided that the list of selected candidates should be arranged in order of merit on the basis of the aggregate marks finally awarded to each candidate in written as well as in viva voce test. Clause (1) of proviso to Rule 19 laid down that in making their recommendation, the Commission should satisfy itself that a candidate had obtained such aggregate of marks in the written test as to indicate that he was qualified by his ability for appointment to the service and further he had obtained in the viva voce test such sufficiently high marks that he was suitable for the service. In pursuance to clause (1) of the proviso, the Commission had power to fix minimum aggregate marks in written test for judging the suitability of a candidate for appointment to service. Similarly clause (ii) of the proviso conferred power on the Commission to fix the minimum marks for viva voce test to judge the suitability of a candidate for the service. One related to the fixation of the minimum in the aggregate marks in the written test while the other related to the fixation of the minimum marks in the viva voce test. The enacting clause of Rule 19 directed the Commission to prepare the list on the basis of the aggregate marks awarded to a candidate. Aggregate marks obtained by a candidate determined his position in the list, but the proviso of the rule required the Commission to satisfy itself that the candidate had 17 obtained such aggregate marks in the written test as to qualify him for appointment to service and further he had obtained such sufficiently high marks in viva voce which would show his suitability for the service. The scheme underlying Rule 19 and the proviso made it apparent that obtaining of the minimum aggregate marks in the written test and also the minimum in the viva voce was the sine qua non before the Commission could proceed to make its recommendation in favour of a candidate for appointment to the service. The Commission in view of clause (ii) of the proviso had power to fix the minimum marks for viva voce for judging the suitability of a candidate for service. Thus a candidate who had merely secured the minimum of the aggregate marks or above was not entitled to be included in the list of successful candidates unless he had also secured the minimum marks which had been prescribed for the viva voce test. The Commission was required to include the name of candidates in the list prepared by it under Rule 19 on the basis of the aggregate of marks as obtained by each candidate both in written was well as in the viva vice test.” 21. The case of K.Manjusree (supra) relied by the learned counsel for respondent no.3 instead of lending support to the case of respondent no.3 would actually go in favour of the petitioner, inasmuch as in the said case it was held that though the minimum qualifying marks can be prescribed both for written examination and the interview but such prescription has to be done in advance and the Rules of game cannot be changed afterwards. It 18 was in that context that the Apex Court while considering the appointment of Judicial services of the State of Andhra Pradesh had held as follows: “27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24.7.2001 and 21.2.2002 and held that what was adopted on 30.11.2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them- P.K.Ramachandra Iyer v. Union of India, reported in (1994) 2 SCC 141, Umesh Chandra Shukla vs. Union of India, reported in (1985)3 SCC 721, and Durgacharan Misra v. State of Orissa, reported in (1987)4 SCC 646. 32. In Maharashtra SRTC v. Rajendra Bhimrao Mandve, reported in (2001) 10 SCC 51, this Court observed that 19 “the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.” In this case the position is much more serious. Here, not only the rules of the game were changed, but they were changed after the game had been played and the results of the game were being awaited. That is unacceptable and impermissible.” 22. The last case relied by the learned counsel for respondent no.3 in the case of Maheshwari Prasad & ors. (supra) also in no way would come to the rescue of respondent no.3. That was the case relating to recruitment of police drivers wherein requirement of possessing licence for driving heavy vehicles before publication of the advertisement became the bone of contention. The Apex Court in that context having examined the terms of the advertisement had found that the requirement of possessing of a licence of driving heavy motor vehicles was the criteria even included in the advertisement and therefore, those candidates who were possessing only licence of light motor vehicles could not have complained of their non-selection. Thus, whatever held in paragraphs no. 10 and 11 of the aforesaid judgment reading as follows: “10. Having heard learned counsel for the respective parties, we are of the view that even the advertisement on which reliance has been placed by the Appellants herein, laid stress on a candidate having to possess a licence for 20 driving heavy motor vehicles. The criteria for eligibility in the advertisement indicates that the candidate had to hold a licence for driving heavy motor vehicles or light motor vehicles alongwith heavy motor vehicles. In our view, the second criteria did not necessarily mean that a person holding a licence for driving light motor vehicles had to be selected, since in the advertisement it was a person holding a licence for driving light motor vehicles as well as heavy motor vehicles, who was eligible for appointment. It is not as if the advertisement indicated that a candidate possessing a licence for driving only light motor vehicles would be eligible, the same had to be combined with the right to drive heavy motor vehicles. In other words, those having a combined licence for driving both light motor vehicles and heavy motor vehicles, would be considered for appointment, alongwith those holding a licence to drive heavy motor vehicles exclusively. 11. Moreover, we are inclined to agree with learned counsel for the respondents that it is for the recruiting authorities to consider the candidates to be appointed according to their needs. It does not appear to us that there has been a departure from the advertisement as published.” cannot be read in abstract that it was always open for the recruiting authorities to consider the candidates to be appointed according to their needs, inasmuch as the Apex Court had found that there was no departure from the terms and conditions prescribed in the advertisement. 21 23. Thus, having given anxious consideration to the materials on record this Court will have no option but to hold that the appointment of respondent no.3 having lesser aggregate marks than the petitioner cannot be sustained. This Court would, accordingly, quash the appointment of respondent no.3 and direct that the petitioner should be appointed on the post of Clerk cum Typist, on the vacancy created by removal of respondent no.3. This exercise of appointing the petitioner on the post of Clerk cum Typist in the District Legal Services Authority, West Champaran at Bettiah must be completed within a period of one month from the date of receipt of this order. 24. In the result this writ application is allowed. 25. Let the records of the Bihar State Legal Services Authority be handed over to its Member Secretary. [ (Mihir Kumar Jha, J) Patna High Court Dated the 9th October 2013 A.F.R./surendra