Bombay High Court
Vijay Namdeorao Gavande vs Sharad Shriram Salunke And Others on 7 February, 2025
2025:BHC-AUG:3503-DB
934.WP-7267-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 7267 of 2024
1. 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. ...Petitioner
Versus
1. The State of Maharashtra
Through The Secretary
Cooperation Textile and Marketing
Department,Mantralaya,Mumbai.
[1]
934.WP-7267-2024.odt
2. The Commissioner (Sugar)
Cooperative Sugar Factories,
Maharashtra State,Pune.
3. Vaikuth Mehta National Institute of
Cooperative Management, Savitribai Phule
Pune University Road,
Near Chatursingi Temple,Ganesh Khind,
Pune-411 007. ...Respondents
WITH
Civil Application No.8430 of 2024 in
Writ Petition No. 7267 of 2024
Sadashiv Uttamrao Bahir and Others ...Applicants
versus
Sharad Shriram Salunke and Others ...Respondents
WITH
Civil Application No.10721 of 2024 in
Writ Petition No. 7267 of 2024
Vijay Namdeorao Gavande ...Applicants
Versus
Sharad Shriram Salunke and Others ...Respondents
WITH
Writ Petition No. 8489 Of 2024
1. Bapusaheb S/o Babasaheb Doshinge,
Age : 42 years, Occupation-Service,
R/o. Takali Kazi,
Tq. and Dist. Ahmednagar, .. Petitioner
Versus
[2]
934.WP-7267-2024.odt
1. The State of Maharashtra,
Through it's Secretary,
Co-operation, Textile & Marketing
Department, Mantralaya,
Mumbai-32
2. The Commissioner (Sugar)
Maharashtra State,Pune.
3. Vaikuth Mehta National Institute of
Cooperative Management, Savitribai Phule
Pune 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.odt
J U D G M E N T (Per Shailesh P. Brahme, J.) :
1. Rule. Rule is made returnable forthwith. Heard the litigating
sides finally at the admission stage.
2. Both petitions raise common questions of facts and law pertain
to self-same selection process. Hence, they are decided by common
judgment.
3. Intervenors have filed Civil Applications and they are also
permitted to address the Court. The marks of the candidates who
participated in the selection process are received in sealed envelope
on the earlier occasion and today also.
4. These matters pertain to the selection process of 50 Managing
Directors to be empanelled by the respondents. The process is
regulated by Government Resolution dated 18.04.2022. The
petitioners before the Court are aspirants from the open market. It is
necessary to clarify that few candidates who were denied opportunity
to appear for objective screening test had filed petitions before the
Principal Seat and those were dismissed. Being aggrieved, in all 28
candidates had filed Special Leave Appeal No. 8750-8754 of 2023
before Hon'ble Supreme Court on or around 21.04.2023. Interim
934.WP-7267-2024.odt
orders were passed by Hon'ble Apex Court on 28.04.2023 permitting
them to appear for examination to be held on 04.05.2023. It is
informed 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 on
04.05.2023. They did not qualify written/mains and therefore they are
not figuring in the subsequent round of selections. The lawyers on
both sides submitted that present petitions can be considered for
final hearing. We find that the pendency of the petitions before the
Hon'ble Apex Court is not an impediment in deciding the present
petitions. There is no prohibitory order passed by the Hon'ble Apex
Court. Under these circumstances, we propose to decide these
petitions.
6. The respondent no. 1 had issued Government Resolution dated
18.04.2022 laying down modalities for selecting 50 candidates for the
post of Managing Director. By notification dated 31.05.2022,
advertisement was issued calling applications from aspiring
candidates. It was stipulated that objective screening test of 200
marks would be conducted. Those who score more than 70 marks
934.WP-7267-2024.odt
would be eligible for the written examination/mains (hereinafter
referred in short as 'written/Mains'). In written/mains, the candidates
would 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 50
candidates would be selected for the post in question.
7. The objective screening test was conducted on 05.04.2023. In all
294 candidates had applied for it and 264 candidates had actually
appeared for the examination. The list of 239 candidates scoring
above 70 marks was shortlisted, to be eligible for written/Mains. No
results of the candidates shortlisted for last stage/Oral were declared
8. A circular was issued on 17.04.2023 in an interregnum between
objective screening test and written/mains held on 04.05.2023, setting
out bench mark of minimum 27 marks in the written/mains out of 75
marks to be eligible for orals. On the same date, respondent No.2
addressed a letter to the respondent no.3 issuing the instructions for
conducting written/mains. It was conducted on 04.05.2023. The
results of mains were still not declared.
9. A list of 74 candidates who were found eligible for oral was
934.WP-7267-2024.odt
published. Interviews were conducted in between 18.07.2024 to
22.07.2024. They appeared for the interview. The petitioners did not
figure in the list of 74 candidates appeared for the interview meaning
thereby they were not shortlisted. Therefore, they are approaching
this Court for directions to modify the list of the candidates declared
to be eligible for interview by including them in the list and to declare
the result of Mains. They are also seeking interim orders.
10. Learned counsel for petitioner Mr. More appearing for
petitioners in Writ Petition No. 7267 of 2024 submits that the
selection process was being regulated by Government Resolution
dated 18.04.2022. Initially there was no bench mark of minimum 27
out of 75 marks in the written/mains to qualify for the interview which
is for the first time introduced by Circular dated 17.04.2023 which
amounts to change of rules in the midst of the selection process.
Rather the criterion for calling the candidates for interview was ratio
of 1:3 which is deviated. It is submitted that the super imposed
benchmark of 27 out of 75 marks to qualify for interview is against the
Clause 4 (ii) of Government Resolution dated 18.04.2022 and it is
arbitrary and high handed. He would submit that as per the criterion
which was well circulated, 150 candidates should have been called for
934.WP-7267-2024.odt
the interview but only 74 candidates were called for. There was no
contingency or the special circumstances to introduce new bench
mark when the process was half-way through. The respondents had no
authority to introduce new criterion and the corrigendum dated
15.06.2022 did not spell out any change in the criterion. The
respondents had no power to modify Government Resolution or to
issue circular dated 17.04.2023.
11. Learned counsel for petitioner Mr. P.P.More further submits that
results of the petitioners or any other candidates were not declared
for the mains examination. The list of qualified candidates for
interview was prepared in a non-transparent and clandestine manner
depriving the opportunity to the petitioner to challenge the marks
allotted in the mains. The process adopted by the respondents is
arbitrary and perverse.
12. Mr. Mahesh Ghatage, learned counsel appearing for petitioner in
Writ Petition No. 8489 of 2024 adopts the submissions of learned
counsel Mr. More. Additionally he would submit that circular dated
17.04.2023 was neither issued by Respondent no.1 nor by Respondent
no.2. There is no legal sanctity for issuing the circular. He would
934.WP-7267-2024.odt
submit that no reasons are coming forth for introducing new
benchmark. He would advert our attention to the representation
made by the petitioner on 05.07.2024 to the respondents before
approaching High Court. He would lay emphasis on the judgment of
Hon'ble Supreme Court of five Judges bench in the matter of
Tejprakash Pathak and Others Vs. Rajasthan High Court and Others
reported in 2013 (3) SCC 540 which affirms the decision in
K.Manjushree vs. State of A.P reported in 2008 DGLS (SC) 232 to
buttress a submission that fixation of minimum marks should have
been done before the commencement of selection process. He would
submit that the present petitions are maintainable though petitioners
participated in the selection process.
13. In support of the petitioners they relied on following
judgments :
I) Tejprakash Pathak and others Vs. Rajasthan High Court and
Others (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.
934.WP-7267-2024.odt
iv) 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. Rajendra
Bhimrao Mandve reported in 2001 DGLS (SC) 1466.
vii) Sonali Pramod Dhawade and others Vs. Central Bank of India
and another reported in 2013 (5) Mh.L.J
viii) Rajendra Bhimrao Mandve and others vs. Maharashtra State
Road Transport reported in 1998 (2) Mh.L.J 114.
ix) M/s.J. Mohapatra and Co. and another vs. State of Orissa and
another reported in AIR 1984 SC 1572.
x) Vikaram Bawajya Valvi and Others Vs. State of Maharashtra and
another reported in 2022 DGLS (Bom.) 3061
14. Learned AGP Mr. Pravin Patil relies on the reply filed on two
different occasions. His submissions are that there was a letter issued
on 17.04.2023 by the Respondent No. 2/ Commissioner to the
Respondent No. 3 informing that there would be minimum 27 out of
75 marks for qualifying the oral examination. It was published on the
website and the candidates were apprised of the change. Thereafter
934.WP-7267-2024.odt
mains was conducted on 04.05.2023. The petitioners did not raise any
objection. It is submitted that benchmark of minimum marks was
permissible to be introduced and it was to select best candidates. The
petitioners did not qualify. They participated in selection process and
they are estopped from challenging the minimum marks/Benchmark.
He would further submit that the reasons for introducing minimum
marks are set out in paragraph no. 17 of affidavit-in-reply dated
28.11.2024 filed in Writ Petition No. 8489 of 2024. It is submitted that
there is no change in the criterion so as to cause prejudice to the
petitioners. The petitioners are raising after-thought pleas having
been unsuccessful in the selection process.
15. Learned counsel Mr. Pethe appearing for Respondent No. 3
which is Implementing Agency supports the submissions of
respondent nos. 1 and 2. By referring to his reply he would submit that
the Respondent No.3 was not duty bound to disclose the results after
written/mains examinations. Rather to rule out any possibility of bias
in ensuing oral examinations, the results of all the candidates were
concealed. He would submit that the instructions were received on
24.05.2022 issued by respondent no. 2 for conducting the
934.WP-7267-2024.odt
examination. As per the special instructions, the candidates were
under obligation to get apprised of the process by accessing the
website. He would rely on instruction no. 8 empowering the selection
committee to make changes in the criterion. It is reiterated by him
that well in advance on 17.04.2023 candidates were apprised of the
minimum/Benchmark which was not objected. Without any demur
they appeared for written/Mains examination and now being
unsuccessful they are resorting to the Writ Petitions. It is submitted
that there is no illegality or arbitrariness in conducting the process
and no prejudice is caused to the petitioners. He has tendered on
record two sealed envelopes disclosing the results of written mains
examination.
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 intervenors
submits that there is alternate remedy and the petitions are not
934.WP-7267-2024.odt
maintainable. Without approaching the respondent authorities,
directly the petitions are being filed. The prayers in the petitions
cannot be granted on the ground of non-joinder of necessary parties.
It is submitted that no prejudice is caused to the petitioners due to
introduction of minimum mark/benchmark. To buttress his submission,
he places reliance on following judgments :
i) Goenkrancho Ekvot Vs. Union of India and Others reported in
2007 (6) AIR Bom R. 32.
ii) Shekhar Kaduba More and others vs. The State of Maharashtra
and anothers of this Court in Writ Petition No. 5313 of 2024.
18. Learned counsel Mr. Arora representing intervenors submits
that in fact there was no change in the criterion. No rule has been
changed to the detrimental to the petitioners. He relies on the
paragraph no. 13 of judgment of Hon'ble Supreme Court in the matter
of Tejprakash (supra) to buttress that it was permissible for the
employer to set bench mark at different stages of recruitment
process. He would submit that object is to select the best available
talent and for that there exists power to fix the minimum qualifying
marks. Additionally, he relies on following judgments :
I) Shekhar Kaduba More and another Vs. The State of Maharashtra
934.WP-7267-2024.odt
and others in Writ Petition No. 5313 of 2024 with connected Writ
Petitions.
II) Tajvir Singh Sodhi & Ors. vs. The State of Jammu and Kashmir
and 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 in
AIR 2021 SC 954
19. Having heard the litigating sides at length, the issue that needs
adjudication is as to whether it is permissible to introduce new bench
mark or criterion after commencement of the selection process. Our
opinion which we propose to justify by following reasons is that
considering nature of the new bench mark or criterion it is permissible
to do so.
20. There are preliminary objections raised by the intervenors as
well as respondent no.3 for entertaining the petitions. We have
considered special instructions nos. 11, 12 and 13 as pointed out by
learned senior counsel Mr. Hon. Considering the grounds of objection
and the questions of law raised by the petitioners, the remedy to
934.WP-7267-2024.odt
approach the respondent no.2/Commissioner or Selection Committee
constituted under Government Resolution dated 18.04.2022 is not
efficacious. Considering the constitution of the Selection Committee,
it would not be fair to expect the petitioners to approach them. The
respondent no.2/Commissioner has played role in introducing the
minimum mark/bench mark. Relying on the various pronouncements
of the Hon'ble Supreme Court, the petitioners have raised intricate
questions which can be dealt with by this Court. We find that the
petitioners had no alternate remedy.
21. Learned senior counsel Mr. Hon relies on ratio laid down by this
Court in the matter of Goenkrancho Ekvot (supra) to bolster the
submission that directly petition cannot be filed. We have gone
through relevant paragraph no.4. In the facts and circumstances
Supreme Court held in the cited matter that it was a luxury litigation
where the petitioner was bent upon filing one litigation after another.
In Writ Petition No. 8489 of 2024 representation was made through
mail on 05.07.2024 and it was also replied by the respondent no.3. The
cause of action was accrued in both matters after publication of list of
the qualified candidates for interview on 18.07.2024. Considering the
sequences of the events and the challenge raised in the petitions,
934.WP-7267-2024.odt
petitions cannot be nonsuited for not making detailed
representations to the respondents ventilating their grievances. The
judgment cited is of no assistance to the respondents.
22. We also overrule the objection of respondent no.3 that no
specific plea has been raised by the petitioners for minimum
mark/bench mark which is impermissible to be introduced after
commencement of the process. The plea was being pressed into
service since beginning and the parties have filed returns and the
documents dealing with the pleas. It is hyper technical to reject the
petitions on this count.
23. The next plank of objection to oppose the petitions is that
having participated in selection process, they are estopped from
challenging it. Following judgments are cited.
I) Shekhar Kaduba More and others vs. The State of Maharashtra
and anothers of this Court in Writ Petition No. 5313 of 2024.
ii) Madanlal vs. State of Jammu and Kashmir reported in (1995) 3
SCC 486
iii) Jay Pramod Rikame vs. State of Maharashtra reported in AIR
Online 2013 BOM 1248.
934.WP-7267-2024.odt
iv) Tajvir Singh Sodhi & Ors. vs. The State of Jammu and Kashmir
and Ors. reported in 2023 Live law (SC) 253.
24. Our attention is invited to paragraph no. 28 of the case of
Shekhar (supra). In that case, in the advertisement requisite
qualification was prescribed for the post of 'Craft Inspector'(Class-III).
The qualification prescribed was sought to be challenged by those
petitioners by filing petitions. In that context observations were made
in paragraph no.28. Facts of the present case are distinguishable. In
the present case, none of the clauses of advertisement are under
challenge. The introduction of minimum mark/bench mark after
commencement of the selection process is the fulcrum of the
submissions. This judgment will not help the respondents.
25. In case of Madanlal vs. State of Jammu and Kashmir reported
in (1995) 3 SCC 486, the selection process was challenged by the
unsuccessful petitioners on the ground of manner and method of
conducting viva-voce. In that context it was held that the result of
interview on merits could not be successively challenged by the
candidates who took chance to get selected in the said interview and
who ultimately found themselves to be unsuccessful. It was further
934.WP-7267-2024.odt
held that the assessment on merits by the Expert Committee could
not be challenged. It was not a case that any new criterion was
introduced for the first time after commencement of the selection
process.The facts of the present case are distinguishable and the ratio
cannot be made applicable.
26. Reliance is placed on the judgment of Supreme Court in the
matter of Tajvir Singh (supra). In that matter subsequent to issuance
of advertisement for the post of Drug Inspector, a corrigendum was
issued recasting the weightage awarded to the candidates possessing
the degree of Pharmacy or Pharmaceutical Chemistry or Post
Graduation or Ph.D. Petitioners were declared unsuccessful and then
petition was filed. A challenge was raised on the ground that the
process is vitiated due to recasting. The challenge was turned down. In
paragraph no. 13 various judgments are referred by Hon'ble Supreme
Court for the proposition that having participated in the selection
process without any protest it would not be open to the unsuccessful
candidates to challenge the selection criterion subsequently. In that
case the recasting of weightage was introduced on 12.06.2009. Select
list was declared on 08.09.2009. The appointment orders were issued
to the successful candidates on 15.10.2009. The petitioner had ample
934.WP-7267-2024.odt
opportunity to challenge the recasting of the weightage. In the case
before us, petitioners had no cause of action when the change was
introduced. Considering the difference in the facts, ratio cannot be
made applicable to the present case.
27. The matter of Jaypramod Rikame (supra) was pertaining to the
admission process. It was held that candidates who participated in
examination cannot turn around to contend that holding of
examination was unfair or there was lacunae in the normalisation. In
the case in hand, the plea to change the rules after the process has
begun is raised. This judgment would be of no help to the
respondents.
28. The petitioners could not have foreseen that the respondent
authority would introduce any new criterion after the commencement
of the selection process. They had no cause to challenge anything
before commencement of the process. The cause of action accrued to
them after circular dated 17.04.2023 by which minimum mark/ bench
mark was introduced. The petitioners were not aware of results.
Therefore, they approached court at proper time. We overrule all the
preliminary objections of the respondents and the intervenors and
934.WP-7267-2024.odt
proceed to examine the matters on merit.
29. The selection process is regulated by Government Resolution
dated 18.04.2022. A selection committee was constituted for
empanelling of 50 posts of Managing Director. The modus of the
examination is stipulated by clause 4 of its annexure which is as
follows :
४) परिक्षेचे स्वरूप :
* पहिला टप्पा: वस्तूनिष्ठ बहुपर्यायी चाळणी परीक्षा (१०० प्रश्न प्रत्येकी २ गुण)
* दस
ु रा टप्पा ले खी परीक्षा (५ मुख्य प्रश्न प्रत्येकी १५ गुण)
* तिसरा टप्पा : मौखिक / तोंडी परीक्षा (२५ गुण)
(i) पहिल्या टप्प्यातील वस्तूनिष्ठ बहुपर्यायी परीक्षा (Objective) ही चाळणी स्वरूपाची
असेल. या परिक्षेत ज्या उमेदवारांना किमान ७० गुणांपेक्षा जास्त गुण मिळतील असे सर्व
उमेदवार दसु ऱ्या टप्प्यातील ले खी परीक्षेस पात्र राहतील.
(ii) पहिल्या टप्प्यातील पात्र उमेदवार ले खी परिक्षेला पात्र असतील. ले खी परीक्षेतील
उमेदवारांची गुणानुक्रमे यादी तयार करण्यात येईल. त्यापैकी सर्वोच्च गुणधारक उमेदवार १:३
पद्धतीने तोंडी परिक्षेस पात्र असतील.
(iii) ले खी परीक्षा व तोंडी परीक्षेतील गुणांची बेरीज करून उमेदवारांची १०० मार्काची अंतिम
गुणपत्रिका बनविली जाईल. त्यातील गुणानुक्रमाने जास्तीत जास्त पहिल्या ५० उमेदवारांना
कार्यकारी संचालकांचे पॅनेलवर समाविष्ट केले जाईल.
30. Admittedly no bench mark or minimum marks was stipulated in
clause 4 (ii) to qualify for the oral examination. Only ratio of 1:3 was
prescribed for qualifying the candidates for interview. Pertinently only
the performance in written/mains for 75 marks and oral for 25 marks
934.WP-7267-2024.odt
was to be considered for preparing the merit list of first 50
candidates.
31. After conducting screening test on 05.04.2023, 239 candidates
were found to be eligible for written/mains having scored above 70
marks . On 17.04.2023 a circular was issued introducing bench mark of
minimum 27 marks out of 75 marks for qualifying oral interview.
Thereafter on 04.05.2023 written/mains was conducted. The results of
neither objective screening test nor mains were declared. The list of
74 candidates was declared without disclosing marks secured, as
qualifying for oral interview.
32. The bench mark of minimum 27 out of 75 marks to qualify oral
examination was neither incorporated in Government Resolution
dated 18.04.2022 nor in the advertisement dated 31.05.2022. This is
first time introduced after commencement of the selection process.
The petitioners who are not figuring in list of 74 candidates in mains
are agitating against introduction of new benchmark.
33. It is pertinent to note that notwithstanding the objections of the
petitioners admittedly they are neither figuring in the list of 239
934.WP-7267-2024.odt
candidates nor figuring in list of 74 candidates declared to be qualified
for oral examination. They failed to secure minimum 70 marks out of
200 in the objective screening test. Needless to state that they are
found to be ineligible for the further rounds. Interestingly even if the
minimum benchmark of 27 out of 75 marks is removed or excluded
they would not get any benefit. In any way they are not going to be in
fray and eligible to claim the selection. Still we propose to examine
the submissions of the petitioners on merits.
34. The rules of the game cannot be changed after the
commencement of the game. For this proposition the parties have
cited following judgments :
I) Tejprakash Pathak and Others Vs. Rajasthan High Court and
Others reported in 2013 (3) SCC 540
ii) 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) 232
iv) Maharashtra State Road Transport Corporation Vs. Rajendra
Bhimrao Mandve reported in 2001 DGLS (SC) 1466.
35. A useful reference can be made to judgment of Hon'ble
934.WP-7267-2024.odt
Supreme Court in the matter of Abhimeet Sinha vs. High Court of
Judicature at Patna and others reported in (2024) 7 SCC 262.
36. As argued by the learned Counsel for the High Courts, the legal position
is that after participating in the recruitment process, the unsuccessful
candidates cannot turn around and challenge the recruitment process3.
However, it is also settled that the principle of estoppel cannot override the
law. Such legal principle was reiterated by the Supreme Court in Meeta
Sahai v. State of Bihar wherein it was observed as under : (SCC p.26, para17)
"17. However, we must differentiate from this principle insofar as the
candidate by agreeing to participate in the selection process only accepts
the prescribed procedure and not the illegality in it. In a situation where a
candidate alleges misconstruction of statutory Rules and discriminating
consequences arising therefrom, the same cannot be condoned merely
because a candidate has partaken in it. The constitutional scheme is
sacrosanct and its violation in any manner is impermissible. In fact, a
candidate may not have locus to assail the incurable illegality or derogation
of the provisions of the Constitution, unless he/she participates in the
selection process."
37. Guided by the above ratio, in matters like this, to non-suit the writ
Petitioners at the threshold would hardly be reasonable particularly when
the alleged deficiencies in the process could be gauged only by
participation in the selection process.
36. We cannot be oblivious of couple of judgments placed on
record on behalf of the respondent nos. 1 and 2 on earlier dates of
hearing 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 participated
in the selection process for the post of Deputy Director. They had
qualified written test and thereafter they had faced interview. They
934.WP-7267-2024.odt
were not figuring in the final select list which was the cause for them
to prefer petition before Learned Single Judge. Being unsuccessful,
they had approached the Division Bench and thereafter to Hon'ble
Supreme Court. The written test was carrying 80% and interview was
carrying 20 % marks. It was further stipulated that candidates having
less than 50% of the marks in the written test would not be called for
the interview. For the reserved category the cut-off was 40%.
However, respondents therein fixed the benchmark of 70 marks for
the General category and 60 marks for the reserved category to
qualify for the interview. This was argued to be change in the criterion
arbitrarily by the appellants. The Appeals were dismissed by Hon'ble
Supreme Court. Following relevant observations are made :
13. The instant case is not a case where no minimum marks prescribed
for viva voce and this is sought to be done after the written test. As
noted above, the instructions to the examinees provided that written
test will carry 80% marks and 20% marks were assigned for the
interview. It was also provided that candidates who secured minimum
50% marks in the general category and minimum 40% marks in the
reserved categories in the written test would qualify for the interview.
Entire selection was undertaken in accordance with the aforesaid
criterion which was laid down at the time of recruitment process. After
conducting the interview, marks of the written test and viva voce were
to be added. However, since benchmark was not stipulated for giving
the appointment. What is done in the instant case is that a decision is
taken to give appointments only to those persons who have secured
70% marks or above marks in the unreserved category and 65% or
above marks in the reserved category. In the absence of any rule on this
aspect in the first instance, this does not amount to changing the "rules
of the game". The High Court has rightly held that it is not a situation
where securing of minimum marks was introduced which was not
934.WP-7267-2024.odt
stipulated in the advertisement, standard was fixed for the purpose of
selection. Therefore, it is not a case of changing the rules of game. On
the contrary in the instant case a decision is taken to give appointment
to only those who fulfilled the benchmark prescribed. Fixation of such a
benchmark is permissible in law. This is an altogether different situation
not covered by Hemani Malhotra case.
14. The decision taken in the instant case amounts to short listing of
candidates for the purpose of selection/appointment which is always
permissible. For this course of action of the CCI, justification is found by
the High Court noticing the judgment of this Court in the State of
Haryana v. Subash Chander Marwaha and Ors. In that case, Rule 8 of the
Punjab Civil Service (Judicial Branch) Service Rules was the subject
matter of interpretation. This rule stipulated consideration of
candidates who secured 45% marks in aggregate. Notwithstanding the
same, the High Court recommended the names of candidates who had
secured 55% marks and the Government accepted the same. However,
later on it changed its mind and 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:
"12.... 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 no constraint on the Government
fixing a higher score of marks for the purpose of selection. In a case
where appointments are made by selection from a number of eligible
candidates it is open to the Government with a view to maintain high-
standards of competence to fix a score which is much higher than the
one 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
934.WP-7267-2024.odt
the CCI was to get more meritorious candidates. There was no change of
norm or procedure and no mandate was fixed that a candidate should
secure minimum marks in the interview. In order to have meritorious
persons for those posts, fixation of minimum 65% marks for selecting a
person from the OBC category and minimum 70% for general category,
was legitimate giving a demarcating choice to the employer. In the
words of the High Court:
"In the case at hand, as we perceive, the intention of the Commission
was to get more meritorious candidates. There has been no change of
norm or procedure. No mandate was fixed that a candidate should
secure minimum marks in the interview. Obtaining of 65% marks was
thought as a guidelines for selecting the candidate from the OBC
category. The objective is to have the best hands in the field of law.
According to us, fixation of such marks is legitimate and gives a
demarcating choice to the employer. It has to be borne in mind that the
requirement of the job in a Competition Commission demands a well
structured selection process. Such a selection would advance the cause
of efficiency. Thus scrutinized, we do not perceive any error in the
fixation of marks at 65% by the Commission which has been uniformly
applied. The said action of the Commission cannot be treated to be
illegal, irrational or illegitimate."
16. It is stated at the cost of repetition that there is no change in the
criteria of selection which remained of 80 marks for written test and 20
marks for interview without any subsequent introduction of minimum
cut off marks in the interview. It is the short listing which is done by
fixing the benchmark, to recruit best candidates on rational and
reasonable basis. That is clearly permissible under the law. (M.P. Public
Service Commission v. Navnit Kumar Potdar and Anr.
37. Thus it is laid down by Hon'ble Supreme Court that it is
permissible to introduce the benchmark to fix the minimum marks. In
the absence of any rules on this aspect, it did not amount to changing
the rules of the game. It is open for the employer with a view to
maintain high-standard of competence to fix a score which is higher
934.WP-7267-2024.odt
than the one required for mere eligibility. The object of the employer
is to get meritorious candidates . There was no change of norms or the
procedure. If the fixation of the minimum marks is with the object to
have best hands in the field then such an introduction of benchmark is
legitimate. It's only shortlisting by fixing the minimum
mark/benchmark to recruit best candidates on rational and reasonable
basis. We are bound by the above said ratio which is aptly applicable to
the case in hand. We are cited with number of judgments with which
we propose to deal with.
38. The petitioners vouched that they were kept in dark and results
of written/mains were not declared. All the candidates who
participated in the process were not disclosed the results. Even those
who were included in list of 74 candidates also were not aware of the
result of written/mains. The petitioners are unable to point out the
prejudice caused to them. Only the faint submission is made that had
the results been declared, attempt could have been made for
revaluation of the marks. We do not find that there is any provision in
the policy or the conditions for reverification or reviewing of the
marks. It's not as a matter of right for the aspirants to claim
revaluation. Learned counsel for Respondent No.3, Mr. Pethe,
934.WP-7267-2024.odt
adverted our attention to the provisions of G.R. dated 18.04.2022
especially clause 4 stipulating manner in which the examinations are
to be conducted, circular dated 17.04.2023 as well as the instructions
issued to respondent no.3. There is no provision for declaration of the
results of written/mains. The respondent no. 3 is justified in
contending that it was not bound to declare the results and there is no
per se any arbitrariness or non-transparency.
39. In this regard it is worth referring the submissions of learned
counsel Mr. Arora, appearing for the intervenors. The specific purpose
for not disclosing the results is made out by him by relying on
judgment of Hon'ble Supreme Court in the matter of Pranav Verma
and Ors. Vs. The Registrar General of the High Court of Punjab and
Haryana at Chandigarh and Ors. reported in (2020) 15 SCC 377. In
that case, entire selection process and the evaluation method for
appointing Judicial Officers was under challenge. Hon'ble Supreme
Court addressed one of the specific issues as to whether "clause 4( iv)
whether marks obtained in main examination should be disclosed
before conducting viva-voce?" It is answered as follows :
28. As regards the Petitioners' plea that marks of the Main Exam should be
disclosed before conducting viva-voce, we are of the considered opinion that
such a practice may not insulate the desired transparency, rather will invite
criticism of likelihood of bias or favouritism. The broad principles to be laid down
934.WP-7267-2024.odt
in this regard must be viewed keeping in view the selections for various
categories of posts by different Selecting Authorities, for such a self-evolved
criteria cannot be restricted to Judicial Services only. If the Members of the
Interviewing Boards are already aware of the marks of a candidate secured in the
Written Examination, they can individually or jointly tilt the final result in favour
or against such candidate. The suggested recourse, thus, is likely to form bias
affecting the impartial evaluation of a candidate in viva-voce. The acceptance of
the plea of the Petitioners in this regard will also run contrary to the
authoritative pronouncement of this Court in Ashok Kumar Yadav and Ors. v.
State of Haryana (1985) 4 SCC 417. As the written examination assesses
knowledge and intellectual abilities of a candidate, the interview is aimed at
assessing their overall intellectual and personal qualities which are imperative to
hold a judicial post. Any measure which fosters bias in the minds of the
interviewers, therefore, must be done away with.
40. The practice adopted by the respondents in not disclosing the
marks is for impartial evaluation of candidates in viva-voce. It is to
achieve the desired transparency. Therefore, we reject the
submissions of the petitioners in this regard.
41. The rival submissions are made regarding authority of the
respondents to introduce minimum mark of benchmark. As per G.R.
dated 18.04.2022, respondent no. 3 was appointed as an
implementing agency for undertaking the selection process.
Accordingly by letter dated 24.05.2022 addressed by respondent
no.2/Commissioner, respondent no. 3 was entrusted with the job of
recruitment process. It was supposed to follow the instructions which
were part of covering letter dated 24.05.2022 at Exhibit-R2 produced
by respondent no.3. Its condition no. (8) is an enabling provision which
934.WP-7267-2024.odt
is as follows :
८) सदर निवड प्रक्रिया / परिक्षा स्थगित अथवा रद्द करणे , त्यात अंशतः बदल करणे , शैक्षणिक अर्हता. अनुभव
यात बदल करणे इ. वावतचे अधिकार निवड समितीस राहतील. तसेच कार्यकारी संचालक निवड
प्रक्रियेबाबतचा अंतिम निर्णय निवड समितीचा असेल.
. Invoking this power, circular was issued on 17.04.2023 by the
Project Director of the respondent no.3 introducing minimum mark
benchmark of 27 out 75 marks. The same was followed by the
respondent no. 2 and respondent no.3 under the caption "Instructions
for conducting written/mains". The relevant portion is as follows :
(२) दस
ु ऱ्या टप्प्यातील ले खी परिक्षेतील सर्वोच्च गुणधारक उमेदवार १:३ पद्धतीने तोंडी परिक्षेस
पात्र असतील. परंतु सदर उमेदवारांनी ले खी परिक्षेमध्ये ७५ पैकी किमान २७ गुण प्राप्त करणे
आवश्यक आहे.
42. We find that the selection committee appointed under
Government Resolution dated 18.04.2022 was having the powers to
modify the eligibility criterion and accordingly minimum mark
benchmark was introduced vide circular dated 17.04.2023. The circular
was uploaded on 17.04.2023 on web portal well in advance. The
written/mains was scheduled on 04.05.2023. During the interregnum
period, neither the petitioners nor any other aspirants challenged the
circular or questioned the authority to introduce minimum mark
934.WP-7267-2024.odt
criterion. We find substance in submissions of learned counsel for
respondent no. 3. The petitioners have challenged minimum mark of
benchmark after 18.07.2024 which can be said to be after-thought.
43. The petitioners as well as one of the intervenors relied on
judgment of Tej Prakash Pathak (supra). Initially the matter was
placed before three Judges Bench and later on referred to five judges
bench. 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 advertisement
calling for applications and ends with filling up of vacancies;
(2) Eligibility criteria for being placed in the Select List, notified at the
commencement of the recruitment process, cannot be changed midway
through the recruitment process unless the extant Rules so permit, or the
advertisement, which is not contrary to the extant Rules, so permit. Even if such
change is permissible under the extant Rules or the advertisement, the change
would have to meet the requirement of Article 14 of the Constitution and
satisfy the test of non-arbitrariness;
(3) The decision in K. Manjusree (supra) lays down good law and is not in
conflict with the decision in Subash Chander Marwaha (supra). Subash Chander
Marwaha (supra) deals with the right to be appointed from the Select List
whereas 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 appropriate
procedure for bringing the recruitment process to its logical end provided the
procedure so adopted is transparent, non-discriminatory/non-arbitrary and has
a rational nexus to the object sought to be achieved.
(5) Extant Rules having statutory force are binding on the recruiting body
both in terms of procedure and eligibility. However, where the Rules are non-
existent, or silent, administrative instructions may fill in the gaps;
(6) Placement in the select list gives no indefeasible right to appointment. The
State or its instrumentality for bona fide reasons may choose not to fill up the
934.WP-7267-2024.odt
vacancies. However, if vacancies exist, the State or its instrumentality cannot
arbitrarily deny appointment to a person within the zone of consideration in the
select list.
44. Learned counsel Mr. Ghatage appearing for petitioner adverted
our attention to paragraph nos.14,15,16,19 and 20. There is no dispute
for the proposition laid down by larger bench judgment. The principles
of reasonableness, equality, legitimate expectations, fairness are the
parameters to which impugned action can be tested. The larger bench
judgment also has taken care of the contingencies, when the power
for changing the criterion or parameters can be invoked in the midst
the selection process. Interestingly the judgment rendered in the
matter of Yogesh Yadav (supra) was not placed for consideration
before larger bench. The observations in paragraph no. 13 are in tune
with the law laid down in Yogesh Yadav's case. The extract of
paragraph no. 13 is as follows :
13. The instant case is not a case where no minimum marks are
prescribed for viva voce and this is sought to be done after the written
test. As noted above, the instructions to the examinees provided that
written test will carry 80% marks and 20% marks were assigned for the
interview. It was also provided that candidates who secured minimum
50% marks in the general category and minimum 40% marks in the
reserved categories in the written test would qualify for the interview.
Entire selection was undertaken in accordance with the aforesaid
criterion which was laid down at the time of recruitment process. After
conducting the interview, marks of the written test and viva voce were
to be added. However, since benchmark was not stipulated for giving
the appointment. What is done in the instant case is that a decision is
taken to give appointments only to those persons who have secured
934.WP-7267-2024.odt
70% marks or above marks in the unreserved category and 65% or
above marks in the reserved category. In the absence of any rule on this
aspect in the first instance, this does not amount to changing the "rules
of the game". The High Court has rightly held that it is not a situation
where securing of minimum marks was introduced which was not
stipulated in the advertisement, standard was fixed for the purpose of
selection. Therefore, it is not a case of changing the rules of game. On
the contrary in the instant case a decision is taken to give appointment
to only those who fulfilled the benchmark prescribed. Fixation of such a
benchmark is permissible in law. This is an altogether different situation
not covered by Hemani Malhotra case.
45. Thus Hon'ble Supreme Court in the matter of Yogesh
Yadav(supra) case and its larger bench judgment in the matter of
Tejprakash Pathak (supra) do recognize the power of the employer to
set out benchmark at different stages of the recruitment process
when there is extant provision in rules or the instructions or the
policies. We have already recorded a finding that the respondents
were having competence to introduce the benchmark. It is relevant to
refer the affidavit-in-reply filed by the respondent authorities in Writ
Petition No. 8489 of 2024 to understand what compelled them to
introduce the benchmark in question. In paragraph no. 17 it is spelt
out that post of Managing Director is a responsible post. He has to
deal with financial transactions worth Rs.1000 crores (one thousand
crores) as well as to deal with administration of sugar factory in the
State of Maharashtra. The best talent available is sought to be
934.WP-7267-2024.odt
achieved by introducing the minimum benchmark. This explanation
tendered by the respondents cannot be doubted.
46. We need to examine as to whether there existed any larger
public interest in introducing the minimum mark benchmark. If the
explanation given in paragraph no. 17 of affidavit-in-reply of the State
Government which we have referred above is considered and in the
light of ratio laid down by Hon'ble Supreme Court in the matter of
Yogesh Yadav (supra) and Tejprakash Pathak (supra), we have no iota
of doubt that the decision was taken in larger public interest and it is
bonafide.
47. After going through the pronouncements in the matter of
Yogesh Yadav (supra), Tajvir Singh (supra), Tejprakash Pathak (supra)
what transpires is that it cannot be a rule of thumb that employer or
the authorities cannot effect any change in the criterion in the
qualification or eligibility of the candidates or deviate from the
benchmark after commencement of the process. There are number of
relevant factors which are required to be considered while testing the
action of the employer. It is not possible to comprehend all situations
but few of them can be cited as follows :
934.WP-7267-2024.odt
a) The existence of enabling provision for introducing change,
deviation or benchmark as well as prohibition in extant law, rule or
norm .
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 be
achieved.
48. We are of the considered view that it is relevant to consider the
nature of the change or benchmark. There cannot be a straight jacket
formulae applicable to every case. It depends on facts and
circumstances of each case. Considering the above factors, we find
that there is no arbitrariness or mala-fides in introducing minimum
mark of benchmark in the midst of the selection process in the
present matter. The submissions of the learned counsel for the
petitioners can not be accepted.
49. Learned counsel Mr. More also referred to judgment of State of
Kerala Vs. Govindan Nair (supra) to bolster the submission that rules
of the game cannot be changed after game has begun. But this
judgment is not helpful to the petitioners because we have already
934.WP-7267-2024.odt
recorded that the respondents were empowered to introduce the
change in larger public interest. No prejudice was caused to the
petitioners. The judgment cited by him in the matter of K. Manjushree
(supra) also cannot help him because the facts in the present case are
distinguishable. He also refers to judgment of Hemani Malhotra
(supra). In that case there was no enabling provision for introducing
minimum marks for viva-voce. The facts are distinguishable and
therefore ratio can not be made applicable. The ratio of the next
judgment of Vikaram Bawajya Valvi and Others (supra) is also not
helpful to the petitioners.
50. Learned counsel Mr. Ghatage appearing for petitioner has relied
on judgment of Rajendra Bhimrao Mandve (supra) to bolster the
submission that the petitioners participated in the selection process.
They are entitled to agitate their claims regarding wrong procedure
undertaken. We have already overruled the objections of the
respondents and the intervenors to non-suit the petitioners just
because of their participation in the selection process. He has further
referred to judgment of Sonali Pramod Dhawade (supra) to support
the proposition of non suiting the petition on the ground of non-
joinder of necessary parties. Then on similar line another judgment of
934.WP-7267-2024.odt
M/s.J. Mohapatra and Co. and another (supra) is also cited. However
such a plea is raised by learned Senior Counsel Mr. Hon. We have not
accepted the plea.
51. It is informed by learned AGP during the course of hearing that
those persons who had approached Hon'ble Supreme Court are not
figuring in the list of 74 candidates who are found to be eligible for
viva-voce. We do not find it necessary to open the sealed envelopes
tendered on record by the respondents. The Registry is directed to
return 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 state
that the interim orders shall stand vacated.
ii) Civil Applications are disposed of.
iii) Sealed envelope shall be returned to Respondent No.3
iv) Rule is discharged.
v) There shall be no order as to costs.
[ SHAILESH P. BRAHME ] [ S.G. MEHARE ]
JUDGE JUDGE
vsj..
934.WP-7267-2024.odt
53. After pronouncement of the judgment, Mr. More learned
counsel for the petitioners prays for continuation of interim relief
which was granted on 18.08.2024.
54. The learned counsel appearing for respondents strongly
opposed the said prayer.
55. The matter pertains to selection of Managing Directors. The
interviews were conducted on 22.07.2024. Due to the interim
directions, the selection process could not be concluded and
appointment orders could not be issued. Considering the time spent in
concluding the process, we are of the considered view that the interim
orders cannot be continued. We, therefore, reject the request of the
petitioner.
[ SHAILESH P. BRAHME ] [ S.G. MEHARE ]
JUDGE JUDGE
vsj..
934.WP-7267-2024.odt
