Writ Petition No. 7267 of 2024 · Bombaybench High Court · 2025
Case Details
2025:BHC-AUG:3503-DB 934.WP-7267-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWrit Petition No. 7267 of 20241.Sharad S/o.Shriram Salunke,Age : 42 Years, Occ. Service,R/o.Village Niwada, Post Shindhgaon,Tq.Renapur,Dist.Latur.2.Ganesh s/o. Govardhan Yeole,Age : 44 Years, Occ. Service,R/o. Mahavir Park, Barshi Road,Latur. 3.Ravishankar s/o Balbhimrao Barmade,Age : 52 years, Occ. Service,R/o. Sadanand Niwas,Datta Nagar,Ausa Road, Latur.4.Ashok s/o Sh ankarrao Jadhav,Age : 48 years, Occ. Service,R/o. Sarswati Colony, Latur.5.Satish s/o Venkatrao Wakade,Age : 46 years, Occ. Service,R/o. Bitargaon, Tq. Renapur.,Dist.Latur. ...PetitionerVersus1.The State of MaharashtraThrough The SecretaryCooperation Textile and MarketingDepartment,Mantralaya,Mumbai. [1] 934.WP-7267-2024.odt2.The Commissioner (Sugar)Cooperative Sugar Factories,Maharashtra State,Pune. 3.Vaikuth Mehta National Institute ofCooperative Management, Savitribai PhulePune University Road,Near Chatursingi Temple,Ganesh Khind,Pune-411 007. ...RespondentsWITHCivil Application No.8430 of 2024 in Writ Petition No. 7267 of 2024Sadashiv Uttamrao Bahir and Others ...Applicants versusSharad Shriram Salunke and Others ...RespondentsWITHCivil Application No.10721 of 2024 in Writ Petition No. 7267 of 2024 Vijay Namdeorao Gavande ...ApplicantsVersusSharad Shriram Salunke and Others ...RespondentsWITHWrit Petition No. 8489 Of 20241.Bapusaheb S/o Babasaheb Doshinge,Age : 42 years, Occupation-Service,R/o. Takali Kazi,Tq. and Dist. Ahmednagar, .. Petitioner Versus[2]
Legal Reasoning
934.WP-7267-2024.odtorders were passed by Hon’ble Apex Court on 28.04.2023 permittingthem to appear for examination to be held on 04.05.2023. It isinformed that those matters are still pending before the Apex Court. 5.It is informed that in pursuance of orders of Supreme Court,candidates were permitted to appear for examination held on04.05.2023. They did not qualify written/mains and therefore they arenot figuring in the subsequent round of selections. The lawyers onboth sides submitted that present petitions can be considered forfinal hearing. We find that the pendency of the petitions before theHon’ble Apex Court is not an impediment in deciding the presentpetitions. There is no prohibitory order passed by the Hon’ble ApexCourt. Under these circumstances, we propose to decide thesepetitions. 6.The respondent no. 1 had issued Government Resolution dated18.04.2022 laying down modalities for selecting 50 candidates for thepost of Managing Director. By notification dated 31.05.2022,advertisement was issued calling applications from aspiringcandidates. It was stipulated that objective screening test of 200marks would be conducted. Those who score more than 70 marks[5] 934.WP-7267-2024.odtwould be eligible for the written examination/mains (hereinafterreferred in short as ‘written/Mains’). In written/mains, the candidateswould be shortlisted for oral on the basis of merits in ratio of 1:3 .After considering the marks for written/Mains and the Oral, first 50candidates would be selected for the post in question. 7.The objective screening test was conducted on 05.04.2023. In all294 candidates had applied for it and 264 candidates had actuallyappeared for the examination. The list of 239 candidates scoringabove 70 marks was shortlisted, to be eligible for written/Mains. Noresults of the candidates shortlisted for last stage/Oral were declared 8.A circular was issued on 17.04.2023 in an interregnum betweenobjective screening test and written/mains held on 04.05.2023, settingout bench mark of minimum 27 marks in the written/mains out of 75marks to be eligible for orals. On the same date, respondent No.2addressed a letter to the respondent no.3 issuing the instructions forconducting written/mains. It was conducted on 04.05.2023. Theresults of mains were still not declared.9.A list of 74 candidates who were found eligible for oral was[6] 934.WP-7267-2024.odtpublished. Interviews were conducted in between 18.07.2024 to22.07.2024. They appeared for the interview. The petitioners did notfigure in the list of 74 candidates appeared for the interview meaningthereby they were not shortlisted. Therefore, they are approachingthis Court for directions to modify the list of the candidates declaredto be eligible for interview by including them in the list and to declarethe result of Mains. They are also seeking interim orders. 10.Learned counsel for petitioner Mr. More appearing forpetitioners in Writ Petition No. 7267 of 2024 submits that theselection process was being regulated by Government Resolutiondated 18.04.2022. Initially there was no bench mark of minimum 27out of 75 marks in the written/mains to qualify for the interview whichis for the first time introduced by Circular dated 17.04.2023 whichamounts to change of rules in the midst of the selection process.Rather the criterion for calling the candidates for interview was ratioof 1:3 which is deviated. It is submitted that the super imposedbenchmark of 27 out of 75 marks to qualify for interview is against theClause 4 (ii) of Government Resolution dated 18.04.2022 and it isarbitrary and high handed. He would submit that as per the criterionwhich was well circulated, 150 candidates should have been called for[7] 934.WP-7267-2024.odtthe interview but only 74 candidates were called for. There was nocontingency or the special circumstances to introduce new benchmark when the process was half-way through. The respondents had noauthority to introduce new criterion and the corrigendum dated15.06.2022 did not spell out any change in the criterion. Therespondents had no power to modify Government Resolution or toissue circular dated 17.04.2023.11.Learned counsel for petitioner Mr. P.P.More further submits thatresults of the petitioners or any other candidates were not declaredfor the mains examination. The list of qualified candidates forinterview was prepared in a non-transparent and clandestine mannerdepriving the opportunity to the petitioner to challenge the marksallotted in the mains. The process adopted by the respondents isarbitrary and perverse. 12.Mr. Mahesh Ghatage, learned counsel appearing for petitioner inWrit Petition No. 8489 of 2024 adopts the submissions of learnedcounsel Mr. More. Additionally he would submit that circular dated17.04.2023 was neither issued by Respondent no.1 nor by Respondentno.2. There is no legal sanctity for issuing the circular. He would[8] 934.WP-7267-2024.odtsubmit that no reasons are coming forth for introducing newbenchmark. He would advert our attention to the representationmade by the petitioner on 05.07.2024 to the respondents beforeapproaching High Court. He would lay emphasis on the judgment ofHon’ble Supreme Court of five Judges bench in the matter ofTejprakash Pathak and Others Vs. Rajasthan High Court and Othersreported in 2013 (3) SCC 540 which affirms the decision inK.Manjushree vs. State of A.P reported in 2008 DGLS (SC) 232 tobuttress a submission that fixation of minimum marks should havebeen done before the commencement of selection process. He wouldsubmit that the present petitions are maintainable though petitionersparticipated in the selection process. 13.In support of the petitioners they relied on followingjudgments : I) Tejprakash Pathak and others Vs. Rajasthan High Court andOthers (supra).ii) State of Kerala Vs. Govindan Nair reported in 2022 DGLS (Ker.) 551(Kerala High Court)iii) Pankaj Rane Vs. Goa Public Service Commission reported in 2018(2) Bom. CR 786.[9] 934.WP-7267-2024.odtiv) K. Manjushree Vs. State of A.P and Anr. reported in 2008 DGLS(SC) 232.v) Hemani Malhotra Vs. High Court of Delhi reported in 2008 DGLS(SC) 525.vi) Maharashtra State Road Transport Corporation Vs. RajendraBhimrao Mandve reported in 2001 DGLS (SC) 1466.vii) Sonali Pramod Dhawade and others Vs. Central Bank of Indiaand another reported in 2013 (5) Mh.L.Jviii) Rajendra Bhimrao Mandve and others vs. Maharashtra StateRoad Transport reported in 1998 (2) Mh.L.J 114.ix) M/s.J. Mohapatra and Co. and another vs. State of Orissa andanother reported in AIR 1984 SC 1572.x) Vikaram Bawajya Valvi and Others Vs. State of Maharashtra andanother reported in 2022 DGLS (Bom.) 306114.Learned AGP Mr. Pravin Patil relies on the reply filed on twodifferent occasions. His submissions are that there was a letter issuedon 17.04.2023 by the Respondent No. 2/ Commissioner to theRespondent No. 3 informing that there would be minimum 27 out of75 marks for qualifying the oral examination. It was published on thewebsite and the candidates were apprised of the change. Thereafter[10] 934.WP-7267-2024.odtmains was conducted on 04.05.2023. The petitioners did not raise anyobjection. It is submitted that benchmark of minimum marks waspermissible to be introduced and it was to select best candidates. Thepetitioners did not qualify. They participated in selection process andthey are estopped from challenging the minimum marks/Benchmark.He would further submit that the reasons for introducing minimummarks are set out in paragraph no. 17 of affidavit-in-reply dated28.11.2024 filed in Writ Petition No. 8489 of 2024. It is submitted thatthere is no change in the criterion so as to cause prejudice to thepetitioners. The petitioners are raising after-thought pleas havingbeen unsuccessful in the selection process. 15.Learned counsel Mr. Pethe appearing for Respondent No. 3which is Implementing Agency supports the submissions ofrespondent nos. 1 and 2. By referring to his reply he would submit thatthe Respondent No.3 was not duty bound to disclose the results afterwritten/mains examinations. Rather to rule out any possibility of biasin ensuing oral examinations, the results of all the candidates wereconcealed. He would submit that the instructions were received on24.05.2022 issued by respondent no. 2 for conducting the[11] 934.WP-7267-2024.odtexamination. As per the special instructions, the candidates wereunder obligation to get apprised of the process by accessing thewebsite. He would rely on instruction no. 8 empowering the selectioncommittee to make changes in the criterion. It is reiterated by himthat well in advance on 17.04.2023 candidates were apprised of theminimum/Benchmark which was not objected. Without any demurthey appeared for written/Mains examination and now beingunsuccessful they are resorting to the Writ Petitions. It is submittedthat there is no illegality or arbitrariness in conducting the processand no prejudice is caused to the petitioners. He has tendered onrecord two sealed envelopes disclosing the results of written mainsexamination. 16.Mr. Pethe relies on the following Judgments : i) Tajvir Singh Sodhi & Ors. vs. The State of Jammu and Kashmir and Ors. reported in 2023 Live law (SC) 253. ii) Jay Pramod Rikame vs. State of Maharashtra reported in AIR Online 2013 BOM 1248.17.Learned Senior Counsel Mr. Hon representing the intervenorssubmits that there is alternate remedy and the petitions are not[12] 934.WP-7267-2024.odtmaintainable. Without approaching the respondent authorities,directly the petitions are being filed. The prayers in the petitionscannot be granted on the ground of non-joinder of necessary parties.It is submitted that no prejudice is caused to the petitioners due tointroduction of minimum mark/benchmark. To buttress his submission,he places reliance on following judgments : i) Goenkrancho Ekvot Vs. Union of India and Others reported in2007 (6) AIR Bom R. 32.ii) Shekhar Kaduba More and others vs. The State of Maharashtraand anothers of this Court in Writ Petition No. 5313 of 2024.18.Learned counsel Mr. Arora representing intervenors submitsthat in fact there was no change in the criterion. No rule has beenchanged to the detrimental to the petitioners. He relies on theparagraph no. 13 of judgment of Hon’ble Supreme Court in the matterof Tejprakash (supra) to buttress that it was permissible for theemployer to set bench mark at different stages of recruitmentprocess. He would submit that object is to select the best availabletalent and for that there exists power to fix the minimum qualifyingmarks. Additionally, he relies on following judgments : I) Shekhar Kaduba More and another Vs. The State of Maharashtra[13] 934.WP-7267-2024.odtand others in Writ Petition No. 5313 of 2024 with connected WritPetitions.II) Tajvir Singh Sodhi & Ors. vs. The State of Jammu and Kashmirand Ors. reported in 2023 Live law (SC) 253.III) Pranav Verma and Ors. Vs. Registrar General reported in (2020)15 SCC 377.IV) Ram Sharan Maurya and Ors Vs. State of U.P and Ors. reported inAIR 2021 SC 95419.Having heard the litigating sides at length, the issue that needsadjudication is as to whether it is permissible to introduce new benchmark or criterion after commencement of the selection process. Ouropinion which we propose to justify by following reasons is thatconsidering nature of the new bench mark or criterion it is permissibleto do so.20.There are preliminary objections raised by the intervenors aswell as respondent no.3 for entertaining the petitions. We haveconsidered special instructions nos. 11, 12 and 13 as pointed out bylearned senior counsel Mr. Hon. Considering the grounds of objectionand the questions of law raised by the petitioners, the remedy to[14] 934.WP-7267-2024.odtapproach the respondent no.2/Commissioner or Selection Committeeconstituted under Government Resolution dated 18.04.2022 is notefficacious. Considering the constitution of the Selection Committee,it would not be fair to expect the petitioners to approach them. Therespondent no.2/Commissioner has played role in introducing theminimum mark/bench mark. Relying on the various pronouncementsof the Hon’ble Supreme Court, the petitioners have raised intricatequestions which can be dealt with by this Court. We find that thepetitioners had no alternate remedy. 21.Learned senior counsel Mr. Hon relies on ratio laid down by thisCourt in the matter of Goenkrancho Ekvot (supra) to bolster thesubmission that directly petition cannot be filed. We have gonethrough relevant paragraph no.4. In the facts and circumstancesSupreme Court held in the cited matter that it was a luxury litigationwhere the petitioner was bent upon filing one litigation after another.In Writ Petition No. 8489 of 2024 representation was made throughmail on 05.07.2024 and it was also replied by the respondent no.3. Thecause of action was accrued in both matters after publication of list ofthe qualified candidates for interview on 18.07.2024. Considering thesequences of the events and the challenge raised in the petitions,[15] 934.WP-7267-2024.odtpetitions cannot be nonsuited for not making detailedrepresentations to the respondents ventilating their grievances. Thejudgment cited is of no assistance to the respondents.22.We also overrule the objection of respondent no.3 that nospecific plea has been raised by the petitioners for minimummark/bench mark which is impermissible to be introduced aftercommencement of the process. The plea was being pressed intoservice since beginning and the parties have filed returns and thedocuments dealing with the pleas. It is hyper technical to reject thepetitions on this count.23.The next plank of objection to oppose the petitions is thathaving participated in selection process, they are estopped fromchallenging it. Following judgments are cited. I) Shekhar Kaduba More and others vs. The State of Maharashtraand anothers of this Court in Writ Petition No. 5313 of 2024.ii) Madanlal vs. State of Jammu and Kashmir reported in (1995) 3SCC 486iii) Jay Pramod Rikame vs. State of Maharashtra reported in AIROnline 2013 BOM 1248.[16] 934.WP-7267-2024.odtiv) Tajvir Singh Sodhi & Ors. vs. The State of Jammu and Kashmirand Ors. reported in 2023 Live law (SC) 253. 24.Our attention is invited to paragraph no. 28 of the case ofShekhar (supra). In that case, in the advertisement requisitequalification was prescribed for the post of ‘Craft Inspector’(Class-III).The qualification prescribed was sought to be challenged by thosepetitioners by filing petitions. In that context observations were madein paragraph no.28. Facts of the present case are distinguishable. Inthe present case, none of the clauses of advertisement are underchallenge. The introduction of minimum mark/bench mark aftercommencement of the selection process is the fulcrum of thesubmissions. This judgment will not help the respondents. 25.In case of Madanlal vs. State of Jammu and Kashmir reportedin (1995) 3 SCC 486, the selection process was challenged by theunsuccessful petitioners on the ground of manner and method ofconducting viva-voce. In that context it was held that the result ofinterview on merits could not be successively challenged by thecandidates who took chance to get selected in the said interview andwho ultimately found themselves to be unsuccessful. It was further[17] 934.WP-7267-2024.odtheld that the assessment on merits by the Expert Committee couldnot be challenged. It was not a case that any new criterion wasintroduced for the first time after commencement of the selectionprocess.The facts of the present case are distinguishable and the ratiocannot be made applicable.26.Reliance is placed on the judgment of Supreme Court in thematter of Tajvir Singh (supra). In that matter subsequent to issuanceof advertisement for the post of Drug Inspector, a corrigendum wasissued recasting the weightage awarded to the candidates possessingthe degree of Pharmacy or Pharmaceutical Chemistry or PostGraduation or Ph.D. Petitioners were declared unsuccessful and thenpetition was filed. A challenge was raised on the ground that theprocess is vitiated due to recasting. The challenge was turned down. Inparagraph no. 13 various judgments are referred by Hon’ble SupremeCourt for the proposition that having participated in the selectionprocess without any protest it would not be open to the unsuccessfulcandidates to challenge the selection criterion subsequently. In thatcase the recasting of weightage was introduced on 12.06.2009. Selectlist was declared on 08.09.2009. The appointment orders were issuedto the successful candidates on 15.10.2009. The petitioner had ample[18] 934.WP-7267-2024.odtopportunity to challenge the recasting of the weightage. In the casebefore us, petitioners had no cause of action when the change wasintroduced. Considering the difference in the facts, ratio cannot bemade applicable to the present case. 27. The matter of Jaypramod Rikame (supra) was pertaining to theadmission process. It was held that candidates who participated inexamination cannot turn around to contend that holding ofexamination was unfair or there was lacunae in the normalisation. Inthe case in hand, the plea to change the rules after the process hasbegun is raised. This judgment would be of no help to therespondents. 28.The petitioners could not have foreseen that the respondentauthority would introduce any new criterion after the commencementof the selection process. They had no cause to challenge anythingbefore commencement of the process. The cause of action accrued tothem after circular dated 17.04.2023 by which minimum mark/ benchmark was introduced. The petitioners were not aware of results.Therefore, they approached court at proper time. We overrule all thepreliminary objections of the respondents and the intervenors and[19] 934.WP-7267-2024.odtproceed to examine the matters on merit. 29.The selection process is regulated by Government Resolutiondated 18.04.2022. A selection committee was constituted forempanelling of 50 posts of Managing Director. The modus of theexamination is stipulated by clause 4 of its annexure which is asfollows :४) परि(cid:4)क्षेचेस्वरूप:* पहि(cid:12)लाटप्पा: वस्तूहि(cid:19)ष्ठब(cid:12)ुपर्याा(cid:24)र्याीचाळणीप(cid:4)ीक्षा( १००प्रश्नप्रत्र्याेकी२गुण)* दुस(cid:4)ाटप्पालेखीप(cid:4)ीक्षा( ५मुख्र्याप्रश्नप्रत्र्याेकी१५गुण)* तितस(cid:4)ाटप्पा: मौखिखक/ तोंडीप(cid:4)ीक्षा( २५गुण)(i) पहि(cid:12)ल्र्यााटप्प्र्याातीलवस्तूहि(cid:19)ष्ठब(cid:12)ुपर्याा(cid:24)र्याीप(cid:4)ीक्षा(Objective) (cid:12)ीचाळणीस्वरूपाचीअसेल. र्याापरि(cid:4)क्षेतज्र्यााउमेदवा(cid:4)ां(cid:19)ाहिकमा(cid:19)७०गुणांपेक्षाजास्तगुणहिमळतीलअसेसव(cid:24) उमेदवा(cid:4)दुसऱ्र्यााटप्प्र्याातीललेखीप(cid:4)ीक्षेसपात्र(cid:4)ा(cid:12)तील.(ii) पहि(cid:12)ल्र्यााटप्प्र्याातीलपात्रउमेदवा(cid:4)लेखीपरि(cid:4)क्षेलापात्रअसतील. लेखीप(cid:4)ीक्षेतील उमेदवा(cid:4)ांचीगुणा(cid:19)ुक्रमेर्याादीतर्याा(cid:4)क(cid:4)ण्र्याातर्याेईल. त्र्याापैकीसव=च्चगुणधा(cid:4)कउमेदवा(cid:4)१:३ पद्धती(cid:19)ेतोंडीपरि(cid:4)क्षेसपात्रअसतील.(iii) लेखीप(cid:4)ीक्षावतोंडीप(cid:4)ीक्षेतीलगुणांचीबे(cid:4)ीजकरू(cid:19)उमेदवा(cid:4)ांची१००माका(cid:24)चीअंतितम गुणपहित्रकाब(cid:19)हिवलीजाईल. त्र्याातीलगुणा(cid:19)ुक्रमा(cid:19)ेजास्तीतजास्तपहि(cid:12)ल्र्याा५०उमेदवा(cid:4)ां(cid:19)ा कार्या(cid:24)का(cid:4)ीसंचालकांचेपॅ(cid:19)ेलव(cid:4)समाहिवष्टकेलेजाईल.30.Admittedly no bench mark or minimum marks was stipulated inclause 4 (ii) to qualify for the oral examination. Only ratio of 1:3 wasprescribed for qualifying the candidates for interview. Pertinently onlythe performance in written/mains for 75 marks and oral for 25 marks[20] 934.WP-7267-2024.odtwas to be considered for preparing the merit list of first 50candidates. 31.After conducting screening test on 05.04.2023, 239 candidateswere found to be eligible for written/mains having scored above 70marks . On 17.04.2023 a circular was issued introducing bench mark ofminimum 27 marks out of 75 marks for qualifying oral interview.Thereafter on 04.05.2023 written/mains was conducted. The results ofneither objective screening test nor mains were declared. The list of74 candidates was declared without disclosing marks secured, asqualifying for oral interview. 32.The bench mark of minimum 27 out of 75 marks to qualify oralexamination was neither incorporated in Government Resolutiondated 18.04.2022 nor in the advertisement dated 31.05.2022. This isfirst time introduced after commencement of the selection process.The petitioners who are not figuring in list of 74 candidates in mainsare agitating against introduction of new benchmark. 33.It is pertinent to note that notwithstanding the objections of thepetitioners admittedly they are neither figuring in the list of 239[21] 934.WP-7267-2024.odtcandidates nor figuring in list of 74 candidates declared to be qualifiedfor oral examination. They failed to secure minimum 70 marks out of200 in the objective screening test. Needless to state that they arefound to be ineligible for the further rounds. Interestingly even if theminimum benchmark of 27 out of 75 marks is removed or excludedthey would not get any benefit. In any way they are not going to be infray and eligible to claim the selection. Still we propose to examinethe submissions of the petitioners on merits.34.The rules of the game cannot be changed after thecommencement of the game. For this proposition the parties havecited following judgments : I) Tejprakash Pathak and Others Vs. Rajasthan High Court andOthers reported in 2013 (3) SCC 540ii) State of Kerala Vs. Govindan Nair reported in 2022 DGLS (Ker.) 551(Kerala High Court)iii) K.Manjushree vs. State of A.P reported in 2008 DGLS (SC) 232iv) Maharashtra State Road Transport Corporation Vs. RajendraBhimrao Mandve reported in 2001 DGLS (SC) 1466.35.A useful reference can be made to judgment of Hon’ble[22] 934.WP-7267-2024.odtSupreme Court in the matter of Abhimeet Sinha vs. High Court ofJudicature at Patna and others reported in (2024) 7 SCC 262.36. As argued by the learned Counsel for the High Courts, the legal positionis that after participating in the recruitment process, the unsuccessfulcandidates cannot turn around and challenge the recruitment process3.However, it is also settled that the principle of estoppel cannot override thelaw. Such legal principle was reiterated by the Supreme Court in MeetaSahai v. State of Bihar wherein it was observed as under : (SCC p.26, para17) “17. However, we must differentiate from this principle insofar as thecandidate by agreeing to participate in the selection process only acceptsthe prescribed procedure and not the illegality in it. In a situation where acandidate alleges misconstruction of statutory Rules and discriminatingconsequences arising therefrom, the same cannot be condoned merelybecause a candidate has partaken in it. The constitutional scheme issacrosanct and its violation in any manner is impermissible. In fact, acandidate may not have locus to assail the incurable illegality or derogationof the provisions of the Constitution, unless he/she participates in theselection process.”37. Guided by the above ratio, in matters like this, to non-suit the writPetitioners at the threshold would hardly be reasonable particularly whenthe alleged deficiencies in the process could be gauged only byparticipation in the selection process.36. We cannot be oblivious of couple of judgments placed onrecord on behalf of the respondent nos. 1 and 2 on earlier dates ofhearing by the then learned AGP. One such judgment is very relevant.In the matter of Yogesh Yadav vs. Union of India (UOI) and Ors.reported in (2013) 14 SCC 623, the appellants therein had participatedin the selection process for the post of Deputy Director. They hadqualified written test and thereafter they had faced interview. They[23] 934.WP-7267-2024.odtwere not figuring in the final select list which was the cause for themto prefer petition before Learned Single Judge. Being unsuccessful,they had approached the Division Bench and thereafter to Hon’bleSupreme Court. The written test was carrying 80% and interview wascarrying 20 % marks. It was further stipulated that candidates havingless than 50% of the marks in the written test would not be called forthe interview. For the reserved category the cut-off was 40%.However, respondents therein fixed the benchmark of 70 marks forthe General category and 60 marks for the reserved category toqualify for the interview. This was argued to be change in the criterionarbitrarily by the appellants. The Appeals were dismissed by Hon’bleSupreme Court. Following relevant observations are made : 13. The instant case is not a case where no minimum marks prescribedfor viva voce and this is sought to be done after the written test. Asnoted above, the instructions to the examinees provided that writtentest will carry 80% marks and 20% marks were assigned for theinterview. It was also provided that candidates who secured minimum50% marks in the general category and minimum 40% marks in thereserved categories in the written test would qualify for the interview.Entire selection was undertaken in accordance with the aforesaidcriterion which was laid down at the time of recruitment process. Afterconducting the interview, marks of the written test and viva voce wereto be added. However, since benchmark was not stipulated for givingthe appointment. What is done in the instant case is that a decision istaken to give appointments only to those persons who have secured70% marks or above marks in the unreserved category and 65% orabove marks in the reserved category. In the absence of any rule on thisaspect in the first instance, this does not amount to changing the "rulesof the game". The High Court has rightly held that it is not a situationwhere securing of minimum marks was introduced which was not[24] 934.WP-7267-2024.odtstipulated in the advertisement, standard was fixed for the purpose ofselection. Therefore, it is not a case of changing the rules of game. Onthe contrary in the instant case a decision is taken to give appointmentto only those who fulfilled the benchmark prescribed. Fixation of such abenchmark is permissible in law. This is an altogether different situationnot covered by Hemani Malhotra case.14. The decision taken in the instant case amounts to short listing ofcandidates for the purpose of selection/appointment which is alwayspermissible. For this course of action of the CCI, justification is found bythe High Court noticing the judgment of this Court in the State ofHaryana v. Subash Chander Marwaha and Ors. In that case, Rule 8 of thePunjab Civil Service (Judicial Branch) Service Rules was the subjectmatter of interpretation. This rule stipulated consideration ofcandidates who secured 45% marks in aggregate. Notwithstanding thesame, the High Court recommended the names of candidates who hadsecured 55% marks and the Government accepted the same. However,later on it changed its mind and High Court issued Mandamus directingappointment to be given to those who had secured 45% and abovemarks instead of 55% marks. In appeal, the judgment of the High Courtwas set aside holding as under: “12…. It is contended that the State Government have acted arbitrarilyin fixing 55 per cent as the minimum for selection and this is contrary tothe rule referred to above. The argument has no force. Rule 8 is a step inthe preparation of a list of eligible candidates with minimumqualifications who may be considered for appointment. The list isprepared in order of merit. The one higher in rank is deemed to be moremeritorious than the one who is lower in rank. It could never be said thatone who tops the list is equal in merit to the one who is at the bottomof the list. Except that they are all mentioned in one list, each one ofthem stands on a separate level of competence as compared withanother. That is why Rule 10(ii), Part C speaks of "selection forappointment". Even as there is no constraint on the State Governmentin respect of the number of appointment to be made, there is noconstraint on the State Government in respect of the number ofappointments to be made, there is no constraint on the Governmentfixing a higher score of marks for the purpose of selection. In a casewhere appointments are made by selection from a number of eligiblecandidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than theone required for mere eligibility.15. Another weighty reason given by the High Court in the instant case,while approving the aforesaid action of the CCI, is that the intention of[25] 934.WP-7267-2024.odtthe CCI was to get more meritorious candidates. There was no change ofnorm or procedure and no mandate was fixed that a candidate shouldsecure minimum marks in the interview. In order to have meritoriouspersons for those posts, fixation of minimum 65% marks for selecting aperson from the OBC category and minimum 70% for general category,was legitimate giving a demarcating choice to the employer. In thewords of the High Court: “In the case at hand, as we perceive, the intention of the Commissionwas to get more meritorious candidates. There has been no change ofnorm or procedure. No mandate was fixed that a candidate shouldsecure minimum marks in the interview. Obtaining of 65% marks wasthought as a guidelines for selecting the candidate from the OBCcategory. The objective is to have the best hands in the field of law.According to us, fixation of such marks is legitimate and gives ademarcating choice to the employer. It has to be borne in mind that therequirement of the job in a Competition Commission demands a wellstructured selection process. Such a selection would advance the causeof efficiency. Thus scrutinized, we do not perceive any error in thefixation of marks at 65% by the Commission which has been uniformlyapplied. The said action of the Commission cannot be treated to beillegal, irrational or illegitimate.”16. It is stated at the cost of repetition that there is no change in thecriteria of selection which remained of 80 marks for written test and 20marks for interview without any subsequent introduction of minimumcut off marks in the interview. It is the short listing which is done byfixing the benchmark, to recruit best candidates on rational andreasonable basis. That is clearly permissible under the law. (M.P. PublicService Commission v. Navnit Kumar Potdar and Anr.37.Thus it is laid down by Hon’ble Supreme Court that it ispermissible to introduce the benchmark to fix the minimum marks. Inthe absence of any rules on this aspect, it did not amount to changingthe rules of the game. It is open for the employer with a view tomaintain high-standard of competence to fix a score which is higher[26] 934.WP-7267-2024.odtthan the one required for mere eligibility. The object of the employeris to get meritorious candidates . There was no change of norms or theprocedure. If the fixation of the minimum marks is with the object tohave best hands in the field then such an introduction of benchmark islegitimate. It’s only shortlisting by fixing the minimummark/benchmark to recruit best candidates on rational and reasonablebasis. We are bound by the above said ratio which is aptly applicable tothe case in hand. We are cited with number of judgments with whichwe propose to deal with. 38. The petitioners vouched that they were kept in dark and resultsof written/mains were not declared. All the candidates whoparticipated in the process were not disclosed the results. Even thosewho were included in list of 74 candidates also were not aware of theresult of written/mains. The petitioners are unable to point out theprejudice caused to them. Only the faint submission is made that hadthe results been declared, attempt could have been made forrevaluation of the marks. We do not find that there is any provision inthe policy or the conditions for reverification or reviewing of themarks. It’s not as a matter of right for the aspirants to claimrevaluation. Learned counsel for Respondent No.3, Mr. Pethe,[27] 934.WP-7267-2024.odtadverted our attention to the provisions of G.R. dated 18.04.2022especially clause 4 stipulating manner in which the examinations areto be conducted, circular dated 17.04.2023 as well as the instructionsissued to respondent no.3. There is no provision for declaration of theresults of written/mains. The respondent no. 3 is justified incontending that it was not bound to declare the results and there is noper se any arbitrariness or non-transparency.39.In this regard it is worth referring the submissions of learnedcounsel Mr. Arora, appearing for the intervenors. The specific purposefor not disclosing the results is made out by him by relying onjudgment of Hon’ble Supreme Court in the matter of Pranav Vermaand Ors. Vs. The Registrar General of the High Court of Punjab andHaryana at Chandigarh and Ors. reported in (2020) 15 SCC 377. Inthat case, entire selection process and the evaluation method forappointing Judicial Officers was under challenge. Hon’ble SupremeCourt addressed one of the specific issues as to whether “clause 4( iv)whether marks obtained in main examination should be disclosedbefore conducting viva-voce?” It is answered as follows : 28. As regards the Petitioners' plea that marks of the Main Exam should bedisclosed before conducting viva-voce, we are of the considered opinion thatsuch a practice may not insulate the desired transparency, rather will invitecriticism of likelihood of bias or favouritism. The broad principles to be laid down[28] 934.WP-7267-2024.odtin this regard must be viewed keeping in view the selections for variouscategories of posts by different Selecting Authorities, for such a self-evolvedcriteria cannot be restricted to Judicial Services only. If the Members of theInterviewing Boards are already aware of the marks of a candidate secured in theWritten Examination, they can individually or jointly tilt the final result in favouror against such candidate. The suggested recourse, thus, is likely to form biasaffecting the impartial evaluation of a candidate in viva-voce. The acceptance ofthe plea of the Petitioners in this regard will also run contrary to theauthoritative pronouncement of this Court in Ashok Kumar Yadav and Ors. v.State of Haryana (1985) 4 SCC 417. As the written examination assessesknowledge and intellectual abilities of a candidate, the interview is aimed atassessing their overall intellectual and personal qualities which are imperative tohold a judicial post. Any measure which fosters bias in the minds of theinterviewers, therefore, must be done away with. 40.The practice adopted by the respondents in not disclosing themarks is for impartial evaluation of candidates in viva-voce. It is toachieve the desired transparency. Therefore, we reject thesubmissions of the petitioners in this regard. 41.The rival submissions are made regarding authority of therespondents to introduce minimum mark of benchmark. As per G.R.dated 18.04.2022, respondent no. 3 was appointed as animplementing agency for undertaking the selection process.Accordingly by letter dated 24.05.2022 addressed by respondentno.2/Commissioner, respondent no. 3 was entrusted with the job ofrecruitment process. It was supposed to follow the instructions whichwere part of covering letter dated 24.05.2022 at Exhibit-R2 producedby respondent no.3. Its condition no. (8) is an enabling provision which[29] 934.WP-7267-2024.odtis as follows : ८) सद(cid:4)हि(cid:19)वडप्रहिक्रर्याा/ परि(cid:4)क्षास्थहिगतअथवा(cid:4)द्दक(cid:4)णे, त्र्याातअंशतःबदलक(cid:4)णे, शैक्षणिणकअ(cid:12)(cid:24)ता. अ(cid:19)ुभव र्याातबदलक(cid:4)णेइ. वावतचेअतिधका(cid:4)हि(cid:19)वडसहिमतीस(cid:4)ा(cid:12)तील. तसेचकार्या(cid:24)का(cid:4)ीसंचालकहि(cid:19)वड प्रहिक्रर्याेबाबतचाअंतितमहि(cid:19)ण(cid:24)र्याहि(cid:19)वडसहिमतीचाअसेल..Invoking this power, circular was issued on 17.04.2023 by theProject Director of the respondent no.3 introducing minimum markbenchmark of 27 out 75 marks. The same was followed by therespondent no. 2 and respondent no.3 under the caption “Instructionsfor conducting written/mains”. The relevant portion is as follows : (२) दुसऱ्र्यााटप्प्र्याातीललेखीपरि(cid:4)क्षेतीलसव=च्चगुणधा(cid:4)कउमेदवा(cid:4)१: ३पद्धती(cid:19)ेतोंडीपरि(cid:4)क्षेस पात्रअसतील. प(cid:4)ंतुसद(cid:4)उमेदवा(cid:4)ां(cid:19)ीलेखीपरि(cid:4)क्षेमध्र्याे७५पैकीहिकमा(cid:19)२७गुणप्राप्तक(cid:4)णे आवश्र्याकआ(cid:12)े.42.We find that the selection committee appointed underGovernment Resolution dated 18.04.2022 was having the powers tomodify the eligibility criterion and accordingly minimum markbenchmark was introduced vide circular dated 17.04.2023. The circularwas uploaded on 17.04.2023 on web portal well in advance. Thewritten/mains was scheduled on 04.05.2023. During the interregnumperiod, neither the petitioners nor any other aspirants challenged thecircular or questioned the authority to introduce minimum mark[30] 934.WP-7267-2024.odtcriterion. We find substance in submissions of learned counsel forrespondent no. 3. The petitioners have challenged minimum mark ofbenchmark after 18.07.2024 which can be said to be after-thought.43.The petitioners as well as one of the intervenors relied onjudgment of Tej Prakash Pathak (supra). Initially the matter wasplaced before three Judges Bench and later on referred to five judgesbench. Our attention is invited to conclusions drawn in paragraph no.42 which are as follows : 42. We, therefore, answer the reference in the following terms: (1) Recruitment process commences from the issuance of the advertisementcalling for applications and ends with filling up of vacancies; (2) Eligibility criteria for being placed in the Select List, notified at thecommencement of the recruitment process, cannot be changed midwaythrough the recruitment process unless the extant Rules so permit, or theadvertisement, which is not contrary to the extant Rules, so permit. Even if suchchange is permissible under the extant Rules or the advertisement, the changewould have to meet the requirement of Article 14 of the Constitution andsatisfy the test of non-arbitrariness; (3) The decision in K. Manjusree (supra) lays down good law and is not inconflict with the decision in Subash Chander Marwaha (supra). Subash ChanderMarwaha (supra) deals with the right to be appointed from the Select Listwhereas K. Manjusree (supra) deals with the right to be placed in the Select List.The two cases therefore deal with altogether different issues; (4) Recruiting bodies, subject to the extant Rules, may devise appropriateprocedure for bringing the recruitment process to its logical end provided theprocedure so adopted is transparent, non-discriminatory/non-arbitrary and hasa rational nexus to the object sought to be achieved. (5) Extant Rules having statutory force are binding on the recruiting bodyboth in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps; (6) Placement in the select list gives no indefeasible right to appointment. TheState or its instrumentality for bona fide reasons may choose not to fill up the[31] 934.WP-7267-2024.odtvacancies. However, if vacancies exist, the State or its instrumentality cannotarbitrarily deny appointment to a person within the zone of consideration in theselect list.44.Learned counsel Mr. Ghatage appearing for petitioner advertedour attention to paragraph nos.14,15,16,19 and 20. There is no disputefor the proposition laid down by larger bench judgment. The principlesof reasonableness, equality, legitimate expectations, fairness are theparameters to which impugned action can be tested. The larger benchjudgment also has taken care of the contingencies, when the powerfor changing the criterion or parameters can be invoked in the midstthe selection process. Interestingly the judgment rendered in thematter of Yogesh Yadav (supra) was not placed for considerationbefore larger bench. The observations in paragraph no. 13 are in tunewith the law laid down in Yogesh Yadav’s case. The extract ofparagraph no. 13 is as follows : 13. The instant case is not a case where no minimum marks areprescribed for viva voce and this is sought to be done after the writtentest. As noted above, the instructions to the examinees provided thatwritten test will carry 80% marks and 20% marks were assigned for theinterview. It was also provided that candidates who secured minimum50% marks in the general category and minimum 40% marks in thereserved categories in the written test would qualify for the interview.Entire selection was undertaken in accordance with the aforesaidcriterion which was laid down at the time of recruitment process. Afterconducting the interview, marks of the written test and viva voce wereto be added. However, since benchmark was not stipulated for givingthe appointment. What is done in the instant case is that a decision istaken to give appointments only to those persons who have secured[32] 934.WP-7267-2024.odt70% marks or above marks in the unreserved category and 65% orabove marks in the reserved category. In the absence of any rule on thisaspect in the first instance, this does not amount to changing the "rulesof the game". The High Court has rightly held that it is not a situationwhere securing of minimum marks was introduced which was notstipulated in the advertisement, standard was fixed for the purpose ofselection. Therefore, it is not a case of changing the rules of game. Onthe contrary in the instant case a decision is taken to give appointmentto only those who fulfilled the benchmark prescribed. Fixation of such abenchmark is permissible in law. This is an altogether different situationnot covered by Hemani Malhotra case.45.Thus Hon’ble Supreme Court in the matter of YogeshYadav(supra) case and its larger bench judgment in the matter ofTejprakash Pathak (supra) do recognize the power of the employer toset out benchmark at different stages of the recruitment processwhen there is extant provision in rules or the instructions or thepolicies. We have already recorded a finding that the respondentswere having competence to introduce the benchmark. It is relevant torefer the affidavit-in-reply filed by the respondent authorities in WritPetition No. 8489 of 2024 to understand what compelled them tointroduce the benchmark in question. In paragraph no. 17 it is speltout that post of Managing Director is a responsible post. He has todeal with financial transactions worth Rs.1000 crores (one thousandcrores) as well as to deal with administration of sugar factory in theState of Maharashtra. The best talent available is sought to be[33] 934.WP-7267-2024.odtachieved by introducing the minimum benchmark. This explanationtendered by the respondents cannot be doubted. 46.We need to examine as to whether there existed any largerpublic interest in introducing the minimum mark benchmark. If theexplanation given in paragraph no. 17 of affidavit-in-reply of the StateGovernment which we have referred above is considered and in thelight of ratio laid down by Hon’ble Supreme Court in the matter ofYogesh Yadav (supra) and Tejprakash Pathak (supra), we have no iotaof doubt that the decision was taken in larger public interest and it isbonafide. 47.After going through the pronouncements in the matter ofYogesh Yadav (supra), Tajvir Singh (supra), Tejprakash Pathak (supra)what transpires is that it cannot be a rule of thumb that employer orthe authorities cannot effect any change in the criterion in thequalification or eligibility of the candidates or deviate from thebenchmark after commencement of the process. There are number ofrelevant factors which are required to be considered while testing theaction of the employer. It is not possible to comprehend all situationsbut few of them can be cited as follows : [34] 934.WP-7267-2024.odta)The existence of enabling provision for introducing change,deviation or benchmark as well as prohibition in extant law, rule ornorm . b)Larger public interest and compelling circumstances.c)Any prejudice likely to cause to the participants. d) Rational or reasonableness and the object sought to beachieved. 48.We are of the considered view that it is relevant to consider thenature of the change or benchmark. There cannot be a straight jacketformulae applicable to every case. It depends on facts andcircumstances of each case. Considering the above factors, we findthat there is no arbitrariness or mala-fides in introducing minimummark of benchmark in the midst of the selection process in thepresent matter. The submissions of the learned counsel for thepetitioners can not be accepted. 49.Learned counsel Mr. More also referred to judgment of State ofKerala Vs. Govindan Nair (supra) to bolster the submission that rulesof the game cannot be changed after game has begun. But thisjudgment is not helpful to the petitioners because we have already[35] 934.WP-7267-2024.odtrecorded that the respondents were empowered to introduce thechange in larger public interest. No prejudice was caused to thepetitioners. The judgment cited by him in the matter of K. Manjushree(supra) also cannot help him because the facts in the present case aredistinguishable. He also refers to judgment of Hemani Malhotra(supra). In that case there was no enabling provision for introducingminimum marks for viva-voce. The facts are distinguishable andtherefore ratio can not be made applicable. The ratio of the nextjudgment of Vikaram Bawajya Valvi and Others (supra) is also nothelpful to the petitioners. 50.Learned counsel Mr. Ghatage appearing for petitioner has reliedon judgment of Rajendra Bhimrao Mandve (supra) to bolster thesubmission that the petitioners participated in the selection process.They are entitled to agitate their claims regarding wrong procedureundertaken. We have already overruled the objections of therespondents and the intervenors to non-suit the petitioners justbecause of their participation in the selection process. He has furtherreferred to judgment of Sonali Pramod Dhawade (supra) to supportthe proposition of non suiting the petition on the ground of non-joinder of necessary parties. Then on similar line another judgment of[36]
Arguments
934.WP-7267-2024.odt1.The State of Maharashtra,Through it’s Secretary, Co-operation, Textile & MarketingDepartment, Mantralaya,Mumbai-322.The Commissioner (Sugar)Maharashtra State,Pune. 3.Vaikuth Mehta National Institute ofCooperative Management, Savitribai PhulePune University Road,Near Chatursingi Temple,Ganesh Khind,Pune-411 007 .. Respondents****** Mr. P.P.More Advocate for the Petitioner in WP No.7267 of 2024.* Mr. Mahesh V.Ghatage, Advocate h/f. Mr. Mahesh S.Taur,Advocate for Petitioner in WP No. 8489 of 2024* Mr. P.S.Patil, AGP for Respondent/State No. 1 and 2.*Mr. Anand P Akut, Advocate a/w Mihir Pethe Advocate for Respondent No.3*Mr. Shyam C.Arora, Advocate for Applicant in C.A No. 8430 of 2024.*Mr. V.D.Hon, Senior Counsel i/b Mr. A.D.Shinde in C.A No. 10721 of 2024.***** CORAM : S.G. MEHARE AND SHAILESH P. BRAHME, JJ.. RESERVED ON : 20th JANUARY 2025 PRONOUNCED ON : 07th FEBRUARY 2025[3] 934.WP-7267-2024.odtJ U D G M E N T (Per Shailesh P. Brahme, J.) :1.Rule. Rule is made returnable forthwith. Heard the litigatingsides finally at the admission stage. 2.Both petitions raise common questions of facts and law pertainto self-same selection process. Hence, they are decided by commonjudgment. 3.Intervenors have filed Civil Applications and they are alsopermitted to address the Court. The marks of the candidates whoparticipated in the selection process are received in sealed envelopeon the earlier occasion and today also. 4.These matters pertain to the selection process of 50 ManagingDirectors to be empanelled by the respondents. The process isregulated by Government Resolution dated 18.04.2022. Thepetitioners before the Court are aspirants from the open market. It isnecessary to clarify that few candidates who were denied opportunityto appear for objective screening test had filed petitions before thePrincipal Seat and those were dismissed. Being aggrieved, in all 28candidates had filed Special Leave Appeal No. 8750-8754 of 2023before Hon’ble Supreme Court on or around 21.04.2023. Interim[4]
Decision
934.WP-7267-2024.odtM/s.J. Mohapatra and Co. and another (supra) is also cited. Howeversuch a plea is raised by learned Senior Counsel Mr. Hon. We have notaccepted the plea.51.It is informed by learned AGP during the course of hearing thatthose persons who had approached Hon’ble Supreme Court are notfiguring in the list of 74 candidates who are found to be eligible forviva-voce. We do not find it necessary to open the sealed envelopestendered on record by the respondents. The Registry is directed toreturn the envelopes to the concerned lawyers. 52.A sequitur is we find no substance in both the petitions. i) Both the Petitions are dismissed. Needless to statethat the interim orders shall stand vacated. ii)Civil Applications are disposed of. iii)Sealed envelope shall be returned to Respondent No.3iv)Rule is discharged. v)There shall be no order as to costs. [ SHAILESH P. BRAHME ] [ S.G. MEHARE ] JUDGE JUDGE[37] 934.WP-7267-2024.odt53.After pronouncement of the judgment, Mr. More learnedcounsel for the petitioners prays for continuation of interim reliefwhich was granted on 18.08.2024.54.The learned counsel appearing for respondents stronglyopposes the said prayer.55.The matter pertains to selection of Managing Directors. Theinterviews were conducted on 22.07.2024. Due to the interimdirections, the selection process could not be concluded andappointment orders could not be issued. Considering the time spent inconcluding the process, we are of the considered view that the interimorders cannot be continued. We, therefore, reject the request of thepetitioner. [ SHAILESH P. BRAHME ] [ S.G. MEHARE ] JUDGE JUDGEvsj..[38]