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TMI Blog2013 (8) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... d. According to the appellants, their non-selection was the result of altering the prescribed mode of selection -mid-way i.e. after the initiation of recruitment process which was impermissible. This contention has not found favour with either the learned Single Judge in the Writ Petitions filed by them or the Division Bench of the High Court in the appeals filed by them challenging the order of the learned Single Judge. Bone of contention, before us also, remains the same. Therefore, the issue which needs to be decided is as to whether there was any change in the mode of selection after the process of selection had started. 4. Seminal facts which are necessitated to understand the controversy are recapitulated herein below. 5. CCI had issued the notification through public notice dated 11th November, 2009 inviting applications for various posts. We are concerned with the post of Deputy Director (Law) for which 13 vacancies were notified - 9 were in General category, 1 in SC Category and 3 posts were reserved for OBC category. Clause 7 of the notification stipulated the mode of selection in the following manner: "7. Mode of Selection All the applications received by the due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the respondents under the Right to Information Act 2005, the appellant in CA___/2013 (@SLP(C) No. 34427 of 2011) came to know that he had secured only 2 marks out of 20 marks in the interview. In this manner, total marks secured by him were 53 out of 100 marks. He also learnt that the respondents had fixed the benchmark of 70 marks for the General Category and 65 marks for the Reserved Category candidates. Since the total marks obtained by all these appellants were less than 65, that was the reason for their non selection. It is this fixation of benchmark which has agitated the appellants and according to them it amounts to changing the selection procedure mid-way, which is illegal. 8. The appellants approached the High Court of Delhi by filing a Writ Petitions challenging their non- selection primarily on the ground that the selection criteria was changed arbitrarily that too after the advertisement and the law did not permit the respondents to change the rules of the game after the game had started. The precise contention in this behalf was that the benchmark which was fixed at 70 and 65 marks or above in the General and Reserved category respectively for the purposes of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question that falls for consideration is as to whether fixation of benchmark would amount to change in the criteria of selection in the midstream when there was no such stipulation in that regard in the advertisement. 12. Mr. Jayant Bhushan, the learned senior counsel appearing for one of the appellants submitted that the case is squarely covered by the ratio of judgment of this Court in Himani Malhotra vs. High Court of Delhi (2008) 7 SCC 11. That case pertained to recruitment to the Higher Judicial Service in Delhi. The mode of selection was written test and viva voce. 250 marks were assigned for written test and 750 marks prescribed for viva voce test. When the advertisement was given there was no stipulation prescribing minimum marks/cut off marks at viva voce test after the written test was held. The persons who qualified the written test were called for interview. Interview was, however, postponed by the interview committee and it felt that it was desirable to prescribe minimum marks for the viva voce test as well. The matter was placed before the Full Court and Full Court resolved to fix minimum qualifying marks in viva voce which were 55% for general category, 50% for SC/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... election process, the authority, during the selection process or after the selection process, cannot add an additional requirement/qualification that the candidate should also secure minimum marks in the interview; that the norms or rules as existing on the date when the process of selection begins will control such selection and that revisiting the merit list by adopting a minimum percentage of marks for interview is impermissible. 19. The factual scenario in the present case has a different backdrop. The advertisement stipulated that the short listed candidates would be called for interview before the final selection and mere fulfilling of minimum qualifications by itself would not entitle any applicant for being called for interview. Thereafter, in the instruction, the marks were divided. Regard being had to the level of the post and the technical legal aspects which are required to be dealt with, a concise decision was taken to fix 65% marks for OBC category in toto, i.e., marks obtained in the written examination and marks secured in the interview. It is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement. A standard w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d High Court issued Mandamus directing appointment to be given to those who had secured 45% and above marks instead of 55% marks. In appeal, the judgment of the High Court was set aside holding as under: "It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10(ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointment to be made, there is no constraint on the State Government in respect of the number of appointments to be made, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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