Ashwani Kumar vs Union Of India & Ors
2014 Latest Caselaw 4831 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of hearing and Order: 25.09.2014
+       W.P.(C) 3095/2013
        ASHWANI KUMAR
                                                               ..... Petitioner
                          Through:     Mr. Sarvesh Bisaria, Mr.R.S.Parashar,
                                       and Mr. P.C.Sharma, Advocates


                          versus

        UNION OF INDIA & ORS
                                                             ..... Respondent
                          Through:     Mr. Vikrant Jetly, CGSC with
                                       Mr.Satya Prakash, Under Secretary
                                       (SSC)
        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI

                       ORDER

%                      25.09.2014
KAILASH GAMBHIR, J. (ORAL)

A 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 i.e.

25% for unreserved category and 20% for other categories when no

condition of scoring any cut off marks in the interview was laid down in the

advertisement issued by the Commission inviting applications for the

recruitment to the post of Sub-Inspector in CAPFs, Assistant Sub-Inspector

in Central Industrial Security Force (CISF) Examination 2012.

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

introduce the 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, placed reliance on the decision of the Apex Court in the case of

K. Manjusree vs. 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.

Another contention raised by the learned counsel for the petitioner is

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

Administrative Tribunal, Principal Bench, New Delhi where the challenge

was made by the candidates seeking their appointment as Sub-Inspector

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

detailed judgment dated 10.10.2013, the Central Administrative Tribunal,

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

fixing the cut off mark of interview after the selection process had come to a

close was impermissible and hence the final result drawn on the basis of

such an action was liable to be set aside and consequently, the respondents

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

marks obtained by the petitioner in the written examination and

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

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

petitioners accordingly. This judgment of the learned Central Administrative

Tribunal was not challenged by the Staff Selection Commission as informed

to the Court by the learned counsel representing both the parties and

therefore the legal issue in the judgment had attained finality.

It is an admitted case that the petitioners in these petitions had

qualified the written examination (PET) as well as the review medical

examination and 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 and if the consolidated marks secured by the petitioners in

the written examination and interview are taken into consideration then it

could be seen that they had obtained top position in the list of selected

candidates.

In the counter affidavit filed by the respondents, they have made an

attempt to justify their action for introducing the said cut off marks in the

interview by stating that when the minimum cut off marks could be laid

down from any written paper, then the Commission was well within its

rights to prescribe the minimum cut off marks in the interview for the posts,

where personality plays an extremely important role in ensuring the efficient

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

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

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

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

prescribing the certain minimum cut off marks in 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 the cut off marks in the

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

petitioners cannot cry foul as they were informed prior in time and before

the process for interview could commence.

Another stand taken by the respondent 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 order 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 reliance on various judgments of the Apex Court holding the

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

their counter affidavit again it has not been disputed before us that the

petitioners who had come before the learned Central Administrative

Tribunal were also aggrieved by the same criteria introduced by the same

advertisement and because they were seeking appointment to the post of

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

advertisement lay before the learned Central Administrative Tribunal

whereas the present petitioners sought redressal by way of a writ petition,

otherwise, there is no distinction or dissimilarity between the two set of

candidates.

In the light of the above position the petitioners succeed in the present

writ petitions and both these writ petitions are accordingly allowed.

Consequently, the respondent is directed to proceed in the matter by

including the names of the petitioners in the select list 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 and in case they fulfil all other eligibility conditions, the case of

the petitioners 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.

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.

With aforesaid directions, these writ petitions filed by the petitioners

stand allowed.

KAILASH GAMBHIR, J

NAJMI WAZIRI, J SEPTEMBER 25, 2014 pkb