Amarjeet Malik vs Union Of India & Anr
2014 Latest Caselaw 4541 Del

$~13 & 14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of hearing and Order: 17.09.2014
+       W.P.(C) 7255/2013
        AMARJEET MALIK
                                                                    ..... Petitioner
                                Through:    Mr. Jasbir Singh Malik, Advocate
                                versus

        UNION OF INDIA & ANR
                                                                ..... Respondent
                                Through:    Ms. Barkha Babbar, Advocate

+       W.P.(C) 8057/2013
        RAKESH KUMAR & ANR
                                                                  ..... Petitioner
                                Through:    Mr. Parmod Bhardwaj, Advocate for
                                            Mr. M.K. Bhardwaj, Advocate
                                versus

        THE CHAIRMAN, STAFF SELECTION COMMISSION & ORS
                                                    ..... Respondent
                     Through: Mr. Manish Mohan, CGSC with
                               Ms.Anita Mohan, Ms. Puja Sarkar,
                               Advocates for respondent No. 1 to 3.
        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI

                       ORDER

%                      17.09.2014
KAILASH GAMBHIR, J. (ORAL)

1. The short question which falls for consideration in these two writ

petitions is whether the respondent - Staff Selection Commission (SSC)

could legitimately introduce a fresh criteria for qualifying the interview

process i.e., 25% for unreserved category and 20% for other categories when

no such condition of securing any cut off marks in the interview was laid

down in the advertisement issued by the Commission which invited

applications for recruitment to the post of Sub-Inspectors in CAPFs,

Assistant Sub-Inspectors in Central Industrial Security Force (CISF)

Examination 2012.

2. The grievance of the petitioners is that the act of the respondents to

introduce cut off marks in the interview was completely arbitrary and

biased, as the law did not permit the respondents to change the rules of the

game after the game, had started. The learned counsel representing the

petitioners, have placed reliance on the decisions of the Supreme Court in K.

Manjusree v. State of A.P. and Anr., JD 2008 (2) SC 437 and Himani

Malhotra vs. High Court of Delhi, JT 2008 (5) SC 640 in support of their

contentions.

3. Another contention raised by the learned counsel for the petitioners is

that the same issue had come up for consideration before the Central

Administrative Tribunal, Principal Bench, New Delhi where challenge was

made by the candidates who sought their appointment as Sub-Inspector

(Executive) in Delhi Police, pursuant to the same advertisement and vide a

detailed judgment dated 10.10.2013, the Central Administrative Tribunal,

Principal Bench held that the action of the Staff Selection Commission in

fixing cut off marks in the interview after the selection process had started

was impermissible and hence, the final result drawn on the basis of such an

action was liable to be set aside. Consequently, the respondents therein were

directed to re-draw the final result strictly on the basis of aggregate marks

obtained by the applicants therein in the written examination and

interview/personality test, sans the application of any cut off marks for the

interview and were directed to consider the case for appointment of the

applicants therein accordingly. This judgment of the learned Central

Administrative Tribunal was not challenged by the Staff Selection

Commission, as informed to this Court by the learned counsel for the parties

and therefore, it was submitted the legal issue in the judgment had attained

finality.

4. It is an admitted case that the petitioners had qualified the written

examination, PET as well as the medical examination. They had also

appeared for the interview but were not selected in the final list because of

not having secured the qualifying marks, as required for the interview. If the

consolidated marks secured by the petitioners in the written examination and

interview are taken into consideration, it could be seen that they had

obtained top position in the list of selected candidates.

5. In their counter affidavit, the respondents have made an attempt to

justify their action by stating that if minimum cut off marks could be laid

down for written examination, then the Commission was well within its

powers to prescribe minimum cut off marks in the interview, since

personality plays an extremely important role in ensuring the efficient

discharge of duties even in the initial stage of entry into service.

6. It is also the stand of the respondents that certain aberrations were

noticed in the marks obtained in the written examination, vis-à-vis the marks

obtained in the interview and such aberrations could be redressed only by

prescribing certain minimum cut off marks in the interview in order to

eliminate cases where the correlation between the performance in written

examination and interview was extremely poor. It is also the stand of the

respondents that the said decision of introducing cut off marks in the

interview was taken prior to the start of the interview process and therefore

the petitioners cannot cry foul since they were informed prior in time.

7. Another stand taken by the respondents in the counter affidavit has

become a falsity in view of the fact that no necessary steps were taken by the

SSC to challenge the judgment dated 10.10.2013 passed by the learned

Central Administrative Tribunal. In the said judgment, the learned Central

Administrative Tribunal has tried to get to the bottom of the issue and has

also placed the reliance on various judgments of the Supreme Court.

Therefore, we need not delve into the issues raised by the respondents in

their counter affidavit. It has not been disputed before us that the applicants

who had approached the learned Central Administrative Tribunal were also

aggrieved by the same criteria introduced after the issuance of the

advertisement. Since those applicants were seeking appointment to the post

of Sub-Inspector in Delhi Police, therefore, their remedy to challenge the

advertisement was before the learned Central Administrative Tribunal

whereas the present petitioners have sought redressal by way of a writ

petition, otherwise, there is no distinction or dissimilarity between the two

set of candidates.

8. In the light of the above position, the petitioners succeed in the

present writ petitions and both these writ petitions are accordingly allowed.

Consequentially, the respondents are directed to proceed in the matter by

including the names of the petitioners in the list of selected candidates on the

basis of the aggregate marks obtained by them in the written examination as

well as the interview/personality test sans the application of any cut off

marks for the interview. In case the petitioners fulfil all other eligibility

conditions, their case must be considered for their appointment to the post of

Sub-Inspector in CAPFs and ASI in CISF within a period of six weeks from

the date of this order.

9. In the peculiar facts and circumstances of this case, it is made clear

that the benefit of this order shall go only to the petitioners and not to other

candidates who have not approached this Court to challenge the aforesaid

criteria.

10. With the aforesaid directions, these writ petitions filed by the

petitioners stand allowed.

KAILASH GAMBHIR, J

NAJMI WAZIRI, J SEPTEMBER 17, 2014 pkb