Vikas Pareek vs Union Of India & Anothers
2009 Latest Caselaw 3256 Del

*                HIGH COURT OF DELHI : NEW DELHI

             Judgment reserved on : August 11, 2009

             Judgment delivered on : August 19, 2009

+                          W.P. (C) No. 6555 of 2007

%        Vikas Pareek                           ...Petitioner
                   Through: Ms. Aishwarya Bhati & Mr.
                            Abhishek Gulam, Advocates.

                                         versus

         Union of India & Anothers           ...  Respondents
                    Through: Mr. S.M. Zulfiqar Alam & Ms.
                             Shubhra Goyal, Advocates

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.       Whether the Reporters of local
         papers may be allowed to see
         the judgment?

2.       To be referred to Reporter or not?

3.       Whether the judgment should be
         reported in the Digest?

SUNIL GAUR, J.

1. Petitioner- Vikas Pareek, had applied for the post of

Executive Trainee -XIII Batch (IT) in pursuance to

Advertisement (Annexure P-1). On 16th May, 2007,

respondent No.2-Power Grid Corporation of India Ltd.

(hereinafter referred to as the respondent-Corporation) had

conducted All India Written Examination for the selection

W.P. (C) No. 6555 /2007 Page 1 post of Executive Trainee -XIII Batch (IT) and petitioner had

qualified the written examination and he was interviewed on

14th June, 2007. In the last week of June, 2007, the result of

the aforesaid examination was declared by the respondents

on the web-site- www.powergridindia.com. Individual results

were intimated to the candidates and the message (SMS)

received by the petitioner was that his name does not

appear in the list of qualified candidates. Petitioner had

invoked the provisions of Right to Information Act, 2005, and

vide Annexure- P-5, the breakup of the marks obtained by

the petitioner and eight other candidates was disclosed.

2. According to the petitioner, as per Annexure P-5, he

stood third in the written examination while he got 5.9 marks

in the interview, whereas the minimum marks fixed for the

interview were 6.00. It is the case of the petitioner that it

was not mentioned by the respondents in the Advertisement

(Annexure P-1), that the candidates had to secure minimum

cut off marks in the interview. The grievance of the

petitioner is that he could not qualify for the selection as he

had got 0.5 marks less than the minimum qualified marks for

the interview. The stand of the petitioner is that respondent-

Corporation cannot fix the minimum cut off marks for the

W.P. (C) No. 6555 /2007 Page 2 interview without notifying it in the Advertisement

(Annexure P-1). It is pointed out on behalf of the petitioner

that even in the interview letter, Annexure P-3, it was not

specified that the interview carries any minimum marks.

Rather, as per the note given in the interview letter,

Annexure P-3, the eligibility criteria was as specified in the

Advertisement, Annexure P-1. The relief sought in this

petition is of quashing of the interview result for the post of

Executive Trainee -XIII Batch (IT), Information Technology

declared by respondent-Corporation in the last week of June,

2007 and to conduct a fresh interview for the aforesaid

selection in a fair and transparent manner. In the alternative,

a direction is sought to the respondents to declare petitioner

selected on the basis of his high performance.

3. Respondent-Corporation in its counter affidavit has

taken a stand that the detailed Advertisement (Annexure P-

1), was available on the web-site of respondent-Corporation

and the petitioner accessed the web-site of respondent-

Corporation to know the information about his candidature

etc. during the entire recruitment process, as admitted by

him in Para-5 of the writ petition and after being

unsuccessful in the interview, the petitioner is estopped from

W.P. (C) No. 6555 /2007 Page 3 raising objections regarding the interview system adopted

by respondent-Corporation.

4. The selected candidates, i.e. respondent Nos. 4,5, and 7

to 10 in the counter affidavit have taken a stand that

prescription of minimum passing marks in the interview

would not 'per se' vitiate the entire selection process and

have adopted the stand taken by the respondent-

Corporation. There is no rejoinder to counter affidavit filed by

the contesting respondents.

5. Learned counsel for the parties have been heard,

material on record and judgment cited, has been perused.

6. The principal stand of the petitioner is that prescription

of minimum marks for viva voce after the written test is not

permissible. Reliance has been placed upon the case of

'Hemani Malhotra v. High Court of Delhi' (2008) 7 SCC 11

in support of this stand. In the writ petition, there is

reference to decisions reported in (1981) 1 SCC 722; (1981)

2 SCC 484; (1971) 1 SCC 60 and (2006) 12 SCC 724 to state

that prescription of 15 per cent marks for viva voce

examination would result in constitutional invalidity. Learned

counsel for the petitioner has not rightly relied upon the

aforesaid decisions as in the case of Hemani Malhotra

W.P. (C) No. 6555 /2007 Page 4 (Supra) what has been authoritatively declared by the Apex

Court is as under:-

"There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks for both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/ qualification that the candidate should also secure minimum marks in the interview."

7. In view of the aforesaid, it is abundantly clear that

prescription of minimum marks for any interview is not

illegal. What is said to be illegal is prescription of minimum

marks for the interview during the selection process.

8. After having gone through the decision rendered by the

Apex Court in Hemani Malhotra's Case (Supra), this Court

finds itself in complete agreement with the ratio of the

decision in Hemani Malhotra's Case (Supra). It is no doubt

true that introduction of requirement of minimum marks for

interview after the entire selection process is completed,

would amount to changing the rules of the game after the

game is played. However, aforesaid dictum of the Supreme

Court would not apply to the facts of the present case as in

W.P. (C) No. 6555 /2007 Page 5 the Advertisement (Annexure P-1), it was clearly provided

that the respondent-Corporation had reserved the right to

raise the eligibility standards in case applicants are in very

large number. Thus, it is evident that Circular (Annexure-C),

has not come out of the blue and has not taken the

petitioner by surprise. Advertisement, Annexure P-1, permits

the respondent-Corporation to decide upon the parameters

for calling the number of candidates for the interview.

9. It is not the case of the petitioner that he was not

aware of the parameters, Annexure-C, which were laid down

by the respondent-Corporation, as the same were available

on the web-site of the respondent-Corporation. Since the

power to fix the criteria of providing cut off marks for the

interview flows out of the Advertisement (Annexure P-1),

which was issued prior to the initiation of the selection

process, therefore, petitioner cannot be heard to say that he

was taken by surprise or that the cut off marks cannot be

fixed by the respondent-Corporation after the written test

and before the interview. This Court is of the considered

view that ratio of decision in Hemani Malhotra's Case (Supra)

does not apply to the instant case as respondent-Corporation

had already declared before the selection process began

W.P. (C) No. 6555 /2007 Page 6 that it had the right to raise the eligibility standard, in case

the applicants are in very large number. It is not the case of

the petitioner that large number of candidates had not

applied for the post in question. In any case, there is no

challenge from the side of the petitioner to the following

Clause of the Advertisement (Annexure P-1):-

"4. Management reserves the right to raise the eligibility standards incase the applicants are in very large number."

10. In the absence of any challenge to the aforesaid Clause

in the Advertisement (Annexure P-1), challenge to the

Circular (Annexure-C), cannot be maintained. By way of

passing reference, it needs to be noticed that in Hemani

Malhotra's Case (Supra), the prescription of minimum of

marks in viva voce was contrary to the recommendation of

Shetty Commission, which stood approved by the Apex Court

in 'All India Judges' Association" case (2002) 4 SCC 247,

which expressly provided that there should be no cut of

marks for viva voce. The situation in the present case is

entirely different. There is no embargo upon respondent-

Corporation to provide for cut off marks for the interview,

more so, in view of the above referred Clause of

Advertisement (Annexure P-1).

W.P. (C) No. 6555 /2007 Page 7

11. In view of the aforesaid, this petition lacks substance

and is hereby dismissed.

12. No costs.

Sunil Gaur, J.

August 19, 2009
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W.P. (C) No. 6555 /2007                                Page 8