Ahmedabad Municipal Corporation vs Sureshbhai Mayarambhai Danidhar
2023 Latest Caselaw 1325 Guj

    C/LPA/1433/2019                              CAV JUDGMENT DATED: 08/02/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 1433 of 2019
              In R/SPECIAL CIVIL APPLICATION NO. 25697 of 2006


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SONIA GOKANI

and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES

2 To be referred to the Reporter or not ?

YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?

========================================================== AHMEDABAD MUNICIPAL CORPORATION Versus SURESHBHAI MAYARAMBHAI DANIDHAR ========================================================== Appearance:

==========================================================

CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

Date : 08/02/2023 CAV JUDGMENT (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. The appellant - Ahmedabad Municipal Corporation is

before this Court seeking to challenge the judgment and order

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passed by the learned Single Judge on 09.04.2019 allowing

Special Civil Application No. 25697 of 2006 whereby, it has

directed the appellant to appoint respondent to the post of

Assistant Sanitary Sub-Inspector with effect from the date on

which the candidate at serial no. 16 was appointed, with

backwages and seniority. This has been challenged on the

ground that the order is erroneous and arbitrary as well as

against the settled position of law.

2. The brief facts necessary for the purpose of adjudication

are as follows:-

2.1. The respondent - original petitioner approached this

Court by way of writ petition being Special Civil Application

No. 25697 of 2006 seeking the direction against the appellant

to appoint the petitioner with effect from the date on which

the candidate at serial no. 16 is appointed with all

consequential benefits.

2.2. The respondent - corporation issued advertisement on

14.06.2006 inviting the applications for filling up the posts of

Assistant Sanitary Sub-Inspector on a fixed pay of Rs. 2,500/-.

Out of 53 posts, 11 were reserved for Scheduled Tribes, 40 for

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Socially and Educationally Backward Class and 02 were

unreserved. The advertisement required the candidate to

tender certain testimonials in the nature of (i) a duly

authorized cast certificate; and (ii) the certified copies of

educational qualification, age and experience.

2.3. The respondent was belonging to Socially and

Educationally Backward Class with degree of B.Com. with

42% and has passed the Sanitary Inspector Diploma

Examination in second attempt by securing 58% marks. The

respondent appeared in selection process and the Staff

Selection Committee had been constituted by the appellant -

Corporation as per the provision of the Bombay Provincial

Municipal Corporation Act, 1949 which prepared the merit list

on the strength of the preferences given to the different

examinations given by the candidates. Out of 100 marks, 10

marks were fixed for SSC Examination, 60% marks were

prescribed for Sanitary Inspector Diploma, 20% for HSC and

10% marks for Science Graduates. It was decided to deduct

02 marks per trial with respect to each examination.

2.4. The norms were changed on the ground of

administrative inconvenience where it was decided that in the

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event of more than one trial in any of the qualified

examination, the marks would be treated as 35% marks. The

two lists were prepared as the Select List and the Wait List.

The respondent's name appeared at serial no. 16 with the

merit at 56.95 marks. It is the case of the respondent that the

procedure adopted by the Corporation of assigning 35%

marks to the candidates who have qualified in examination in

more than one trials, is adopted by the selection committee

after the merit list was prepared, where in fact, the

advertisement did not provide any such condition nor had

invited any candidate to supply all the mark-sheets of earlier

examination. The procedure adopted by the selection

committee is alleged to be illegal and unjustifiable. He,

therefore, has insisted on appointment of the respondent on

the post of Assistant Sanitary Sub-Inspector where he fairly

agreed that he would not claim any backwages.

2.5. It is the case of the appellant - corporation that as per

the norms prescribed by the selection committee, the

qualifying marks of the respondent would be considered as

35% marks only since he passed examination of Sanitary

Inspector Diploma in the second attempt. Since the

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respondent did not furnish the attempt certificate in respect

of examination, he was placed at serial no. 56 in the merit list.

He was required to inform that he had cleared the

examination in the second attempt. The Staff Selection

Committee has rightly chosen to place him at serial no. 56

instead of 16 in the merit list in absence of any requisite

information at initial stage.

3. Affidavit-in-reply opposing the Letters Patent Appeal is

preferred by the opponent urging that the last selected

candidate has not been joined by the opponent - original

petitioner but the same was never contended by the appellant

- corporation either in Special Civil Application or in the

memo of Letters Patent Appeal. For the first time in this

litigation such a plea has been taken which is at an extremely

belated stage which deserves to be rejected. The last selected

candidate was appointed in the year 2008 which is way after

the present litigation had commenced. It is further his

submission that the last candidate has resigned from his post

in 2010 and there is one post vacant from the advertisement

in question and hence, the opponent - original petitioner can

be adjusted against the said vacancy.

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3.1. It is further stated in the reply that the action on the

part of the corporation in relaxing the condition of

recruitment in question is not only arbitrary and malafide,

but, is also devoid of any statutory powers. There are no

provisions or rules which permit any alteration in the

selection criteria after once the procedure has already

commenced and the mark-sheet has been prepared. It is

further his say that it is also not forthcoming from the

corporation as to how many people had been benefited from

relaxation for the first time and the second time. The

corporation has failed to justify such a drastic change in the

selection criteria after the preparation of mark-sheet except

for the lame plea of administrative inconvenience.

4. We have heard extensively learned advocate Mr.

H.S.Munshaw appearing for the appellant - Ahmedabad

Municipal Corporation and learned senior advocate Mr.

Gautam Joshi appearing with learned advocate Mr. Vyom

Shah for the respondent - original petitioner.

5. According to learned advocate Mr. Munshaw, the merit

list was prepared by way of giving preferences to the different

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examinations given by the candidates. As the original

petitioner - opponent had not provided the necessary

testimonials with regard to the trial for clearing examination

and mark-sheets as well, it is further his case that, in wake of

non-disclosure of these details, meritorious candidates who

have cleared the examination at the first instance were the

sufferers and therefore the committee had decided to give

35% marks to those who have qualified the examination in

more than one trial. The said decision of the selection

committee since was just and legal though after first merit list

was prepared and declared as it is a fair treatment given to

one and all and beneficiaries were the meritorious candidates,

it was neither malafide nor with a view to give undue favour

to any particular candidate.

5.1. Reliance is placed on the decision rendered in case of

Tej Prakash Pathak and Others vs. Rajasthan High Court

and Others, (2013) 4 SCC 540, where the question

addressed by the Court was of alteration of selection criteria

in recruitment process after selection process had

commenced. Whether the same was permissible or not was

referred to the larger Bench. Such alteration according to the

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Supreme Court could pertain to: (i) eligibility criteria of the

candidate seeking employment, or (ii) method and manner of

making selection of suitable candidates. It has held that the

State or its instrumentalities cannot be permitted to tinker

with the "rules of the game"insofar as the prescription of

eligibility criteria is concerned. But whether such a principle

should be applied in context of the "rules of the game"

stipulating procedure for selection, more particularly, when

change sought is to impose more rigorous scrutiny for

selection, the Apex Court held that it requires authoritative

pronouncement of the larger Bench of the Supreme Court.

5.2. The Court further held that legal relationship between

the employer and employee is essentially contractual, but, in

context of employment under the State, contract of

employment is generally regulated by the statutory provisions

or subordinate legislation which restricts freedom of employer

in certain respects. Recruitment rules of employment framed

under Article 309 proviso could be either prospective or

retrospective subject to rule of non-arbitrariness. However in

the context of employment under instrumentalities of State

which is normally regulated by subordinate legislation, such

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rules, according to the Apex Court, cannot be made

retrospectively unless specifically authorized by some

constitutionally valid statute. Changing the "rules of game"

either midstream or after the game is played is an aspect of

retrospective law-making power.

"8. Legal relationship between employer and employee is essentially contractual. Though in the context of employment under State the contract of employment is generally regulated by statutory provisions or subordinate legislation which restricts the freedom of the employer i.e. the 'State' in certain respects.

9. In the context of the employment covered by the regime of Article 309, the 'law' - the recruitment rules in theory could be either prospective or retrospective subject of course to the rule of non- arbitrariness. However, in the context of employment under the instrumentalities of the State which is normally regulated by subordinate legislation, such rules cannot be made retrospectively unless specifically authorised by some constitutionally valid statute.

10. Under the Scheme of our Constitution an absolute and non-negotiable prohibition against retrospective law making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law making bodies. However such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16 etc. Changing the 'rules of game' either midstream or after the game is played is an aspect of retrospective law making power.

15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the 'rules of the game' insofar as the prescription of

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eligibility criteria is concerned as was done in the case of C. Channabasavaiah v. State of Mysore[AIR 1965 SC 1293] etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the 'rules of the game' stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard."

6. According to learned senior advocate Mr. Gautam Joshi,

this being a clear case of having changed the "rule of games"

not in the midstream but after once the selection list was

prepared, the judgment and order of the learned Single Judge

shall need no interference. According to him, in absence of

any kind of statutory authorities to make such drastic changes

in the selection criteria after the mark-sheet is prepared and

to put-forth the excuse of administrative inconvenience, the

Court should read some malafide intention on the part of the

authority. He has relied on the following decisions for this

purpose:-

6.1. As could be noticed from the case of Shainda Hasan vs.

State of Uttar Pradesh and Others, (1990) 3 SCC 48,

where the question was of appointing a lady principal in the

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degree section of college requiring certain qualifications. The

appellant along with others applied for the post. She did not

fulfill the qualification of five years of experience and

appeared for the interview and the selection committee

relaxed the qualification criteria and selected her. The

management sought approval of the University to appoint the

appellant. The University however declined to approve and

directed the management to re-advertise the post. The

appellant challenged the decision of the University by way of

a writ petition under Article 226 of the Constitution of India

before the Lucknow Bench of the Allahabad High Court. The

High Court rejected the same on the ground of Article 30 of

the Constitution of India by holding that the provisions of the

Act are regulatory and are primarily for the purpose of

maintaining uniformity, efficiency and standards of education

in the minority institutions. It also held that the selection

committee was not justified in relaxing the qualification

without reserving that right to itself in the advertisement. It

found that the qualification "possessing working knowledge of

Urdu" was unjust.

"5. The High Court has tightly held the relaxation granted by the Selection Committee to be arbitrary.

In the absence of statutory rules providing power of

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relaxation, the adver- tisement must indicate that the Selection Committee/Appoint- ing Authority has the power to relax the qualifications. Regarding "Working knowledge of Urdu" we do not agree with the High Court that the said qualification is unjust. The college being a Muslim minority institution prescribing the said qualification for the post of Principal, is in conform- ity with the object of establishing the institution.

6. In the view which we are taking in this case it is not necessary to go into the argument based on Article 30(1) of the Constitution of India.

9. Keeping in view the facts and circumstances of the case and in the interest of justice we direct the Lucknow Univer- sity and its Vice Chancellor to grant the necessary approval to the appointment of the appellant as Principal of Karamat Husain MusIim Girls College, Lucknow, with effect from the date she is holding the said post. We further direct that the appellant shall be entitled to the salary,allowances and all other consequential benefits to which a regular princi- pal of the said college would have been and is entitled. We dispose of the appeal with the above directions. There shall be no order as to costs."

6.2. In case of C.M.Singh vs. H.P. Krishi Vishva

Vidhyalaya and Others, (1999) 9 SCC 40, the question that

was required to be considered in these appeals by the Apex

Court was whether the two third respondents who were held

not qualified to be appointed, the High Court could have

declined the relief to the writ petitioners only on the ground

that the two third respondents had worked on the post for

which they were selected for nine years. The High Court

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quoted in its judgment from the decision of the Apex Court in

case of Rekha Chaturvedi vs. University of Rajasthan [1993

Supp 3 SCC 168], however, it never realized that the selection

committee had discretionary powers vested in it under the

University Ordinance to relax the requisite qualifications.

Whereas, in a matter before the Apex Court in C.M. Singh

(supra) there was nothing to show that the selection

committee had any discretionary powers to relax the

qualification.

"5. The High Court quoted in its judgment from the decision of this Court in the case of Rekha Chaturvedi but it would appear that it did not realise the import of these sentences:

"There is also no record before us to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax minimum qualifications in favour of some in exercise of the discretionary powers vested in it under the University Ordinance. If the considerations which weighed with the Committee in relaxing the requisite qualifications were valid, it would result in injustice to those who have been selected."

These sentences show that the Selection Committee there had discretionary powers vested in it under the University Ordinance to relax the requisite qualifications. There is nothing on record before us to show that the Selection Committee in the instant case had discretionary powers to relax the qualifications of the candidates, or that it had exercised them. Apart therefrom, the language employed by this Court in Rekha Chaturvedi case would suggest that this Court was employing the

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powers conferred on it under Article 142 to do complete justice. The High Court does not have such powers. Having found on merits in favour of the writ petitioners we do not think that the High Court was justified in declining any relief to them.

6. Logically, the consequence of what we have held must be that the appointments of the third respondents in each of the writ petitions must be quashed and that a Selection Committee should now be constituted to determine whether the appellant, who was qualified for the post of Dean, should be selected. To pass such an order now would be unduly harsh, particularly qua the third respondents in each of the writ petitions. We think that this is an appropriate case where our powers under Article 142 should be used to do complete justice. We think that complete justice will be done if the appointments of the third respondents in the two writ petitions to the posts in question are not disturbed and it is ordered that the appellant shall stand higher in seniority as compared to them. All consequential reliefs, other than monetary reliefs, shall be granted to the appellant."

7. It is quite clear authoritatively the reference to the

larger Bench which has decided taking into consideration

various decisions to hold that the "rules of the games" cannot

be tinkered with by the State and its instrumentalities and so

far as the prescription of eligibility criteria is concerned, in

order to avoid any manipulation of the recruitment process

and its result. The learned Single Judge, on due consideration

of the detailed submissions made by both the sides, has relied

upon the decision of K. Manjusree vs. State of Andhra Pradesh

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and Another, (2008) 3 SCC 512 which has been considered in

the decision of Tej Prakash (supra).

7.1. As can be noticed from the decision of the learned Single

Judge, it appears that the selection criteria has been

unquestionably altered after the preparation of merits from

deduction of two marks for every trial to assigning the

minimum 35% marks. It has been observed by the selection

committee that those candidates who have not annexed all the

mark-sheets, it was difficult to calculate the same and

therefore, it was decided that if a candidate had secured the

degree diploma in more than one attempt, he/she will be

assigning 35% marks in the merit regardless of the merit he

has obtained. The resolution dated 11.09.2006 specifically

provided the criteria of fixing 35% marks on the ground of

administrative inconvenience and earlier the very norms have

provided for deduction of two marks for every trial of

candidates while adopting the qualification. The Court

therefore deemed it appropriate to rely on the decision of K.

Manjusree (surpa) which provides that the rules if do not

prescribe the procedure, the selection committee may

prescribe the minimum marks, but, if the selection committee

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wants to prescribe the marks for interview, it should do the

same before commencement of the selection process. As an

additional requirement, before the commencement of

selection process, it should prescribe the minimum marks. It

cannot either during or after the selection process add an

additional requirement that the candidate should also secure

the minimum marks. On the ground that the appellant

authority herein acted in complete defiance of the said

decision and has altered the merit of the respondent, the

Court has allowed the petition.

7.2. It is true that the K. Manjusree's decision has been

referred to the larger Bench in Tej Prakash's case and the

Apex Court has specifically observed that the decision in case

of State of Haryana vs. Subash Chander Marwaha, (1974) 3

SCC 220 does not appear to have been brought to the notice

of their lordship in K. Manjusree. It has been also observed

that none of the cases which have been referred to in K.

Manjusree, the decision of Subash Chander Marwaha has

been considered. The Court also observed at para - 15 of the

Tej Prakash's judgment that it is a salutary principle not to

permit the State or its instrumentalities to tinker with the

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"rules of the game" insofar as the prescription of eligibility

criteria is concerned as was done in case of C.

Channabasavaih vs. State of Mysore, AIR 1965 SC 1293, in

order to avoid manipulation of the recruitment process and its

results. However, whether such a principle should be applied

in the context of the "rules of the game" stipulating the

procedure for selection, more particularly, when the change

sought is to impose a more rigorous scrutiny for selection

requires an authoritative pronouncement of a larger Bench.

7.3. In case of State of Haryana vs. Subash Chander

Marwaha, (1974) 3 SCC 220 while dealing with the

recruitment of subordinate judges of the Punjab Civil Services

(Judicial Branch) the situation was to be dealt with where the

relevant rules prescribed the minimum qualifying marks. The

recruitment was for filling-up of 15 vacancies. 40 candidates

secured the minimum qualifying marks of 45%. Only 7

candidates who secured 55% marks and above were

appointed and the remaining vacancies were kept unfilled.

The decision of the State Government not to fill-up the

remaining vacancies in spite of availability of the candidates

who secured the minimum qualifying marks was challenged. It

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was defended by the State that on the ground that the

decision was taken to maintain the high standards of

competence in judicial service. The High Court upheld the

challenge and issued a mandamus. In appeal, the Apex Court

reversed and opined that the candidates securing minimum

qualifying marks at the examination held for the purpose of

recruitment into the service of the State have no legal right to

be appointed. It held that, in cases, where appointments were

made by selection from number of eligible candidates, it is

open for the government with a view to maintain high-

standards of competence to fix a score which is much higher

than the one required for more eligibility.

7.4. It can be noticed from the order dated 05.04.2022 in

Civil Appeal No. 2634 of 2013 in case of Tej Prakash Pathak

and Others vs. Rajasthan High Court and Others, the Apex

Court has directed thus:-

"Upon being mentioned by Ms. Hari Priya Padmanabhan, learned counsel for the petitioner(s), we deem it appropriate to direct the Registry to list the matter before the Bench presided over by Hon'ble Mr.Justice M.R. Shah."

7.5. The matter is still pending, however, it will be apposite

to refer the decision of the Apex Court in case of Goa Public

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Service Commission vs. Pankaj Rane & Others [Civil

Appeal No. 2779/2022, decided on 06.04.2022], it was a

case where by advertisement published by the appellant - Goa

Public Service Commission for filling-up of six posts of

unreserved category and three posts in the reserved category

applications were invited under the Goa Civil Service Rules,

2016 where 1866 candidates appeared in Computer Based

Screening Test and when the results were declared, only

seven candidates were found to have cleared the test. The

written test came to be conducted and the result came to be

declared where out of seven, only four candidates were found

qualified. The appellant decided to fix cut-off marks with

respect to the interview. The total marks fixed for the

interview was 40. The appellant fixed cut-off marks at 26. The

final interview took place on 24.05.2017 where Mr. Vivek

Krishna Naik who stood first in the written examination was

declared successful and the result of the respondent nos. 1 to

3 before the Apex Court had not been declared. The matter

had been taken up before the Chief Secretary and also under

the Right to Information Act. A fresh advertisement came to

be issued inviting applications for 10 posts of Junior Scale

Officer of Goa Civil Services on 21.07.2017. Therefore, those

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respondents filed writ petition on 22.07.2017. The High Court

allowed the same on the ground that not obtaining minimum

qualifying marks in oral interview pursuant to the decision in

the meeting dated 16.05.2017 was the sole reason not to

recommend the names of the candidates to the respondent -

State. There was no other reason then this.

The Court therefore held the action of the respondent -

commission illegal and beyond the powers of the Commission

not to recommend the names of these persons to the post of

Junior Scale Officer of the Goa Civil Services on the ground

that they had not secured 65% minimum qualifying marks in

the oral interview. The decision taken by the Commission in

the meeting dated 16.05.2017 introducing criteria of 65%

minimum qualifying marks at the interview for the post of

Junior Scale Officer was not held sustainable and was

quashed. Rule 12 of the Rules of 2016 was directed to be

followed which necessiates the consolidation of the marks in

the written examination and oral interview without attaching

any qualifying criteria to the marks obtained at the oral

interview. The Apex Court dismissed the appeal and reiterated

the directions contained in the order of the High Court. While

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so doing it has also analyzed the rules in question made under

Article 309. Rule 12 has declared that the Commission is duty

bound to forward to the government the select list which is to

be arranged in the order of merit of the candidates. The select

list is to be determined in accordance with the aggregate

marks obtained by each candidate at the competitive written

examination and oral interview. The Apex Court held that the

rule maker was conscious of the fact that it has prescribed a

separate minimum to be obtained by candidate in the written

examination. It also contemplated the holding of an interview

but as regards the interview a separate minimum was not

stipulated. But at the same time, the law giver has

contemplated that the Commission is to prepare a select list

wherein merit would dictate the order in which the select list

is to be prepared and all that it is to do is to total up the

marks obtained by the candidate in the competitive written

examination and the oral interview. Thus, the merit list would

be dictated by the performance in the competitive

examination and interview subject only to the qualification

that not only those candidates who have obtained 65 marks in

the written examination would be qualified. Rule 12(2) further

provided that in drawing the list of selected candidates it shall

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limit itself to the declared number of vacancies. It is on a

consideration of the statutory Rules that the High Court had

taken a view which has been upheld by the Apex Court.

The Court had an occasion to consider the decision of K.

Manjusree vs. State of Andhra Pradesh and Another [(2008) 3

SCC 512] as well as that of Tej Prakash Pathak and Others vs.

Rajasthan High Court and Others [(2013) 4 SCC 540]. The

said decision had been referred to the Larger Bench to

examine the correctness of the judgment in case of K.

Manjusree (supra). The said matter is pending which had

came up for hearing recently on 13.09.2022 where the

following order was passed:-

"The hearing of this batch of cases will involve time as indicated by most of the counsel.

Considering the paucity of time available to this Bench and having regard to the urgency, we deem it appropriate to direct the Registry to place these matters before Hon'ble the Chief Justice of India for constitution of an appropriate Bench, at the earliest."

The decision which has been referred to in this is the

decision of P.K.Ramachandra Iyer vs. Union of India [(1984) 2

SCC 141]. The rules in question before the Apex Court were

similar to the rules which were considered in

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P.R.Ramachandra Iyer's case. There was yet another decision

of Durgacgaran Misra vs. State of Orissa [(1987) 4 SCC 646].

It was also argued before the Court that it is not the law that

when the matter is referred to a larger Bench, the decision

which is under a cloud ceases to possess its binding nature.

""ANALYSIS (9) The High Court has proceeded with this matter on the basis of a conspectus of the Rules. The Rules in question, in turn, are the Rules made under Article 309 and they are the Goa Civil Service Rules, 2016.

If we notice Rule 10 to begin with, Rule 10 reads as follows:

"10. Competitive examination for direct recruitment.

- (1) The Competitive Examination for direct recruitment shall comprise a written examination and an Oral Interview. The Competitive Examination shall be conducted by the Commission, in the manner notified by the Government, from time to time:

Provided whenever the Goa Public Service Commission is of opinion of conducting screening test required for shortlisting of candidates, the same should be conducted by the Commission in a manner decided by the Commission from time to time.

(2) Whenever Competitive written examination for the direct recruitment to the Junior Scale post of Service is conducted by the Commission, the results of such written examination shall be declared by the Commission by displaying the same prominently on the notice board and website of the Commission.

(3) The minimum passing percentage for competitive written examination shall be 65 percent of the total marks, the passing percentage for candidates belonging to Scheduled Castes and Scheduled Tribes

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shall be minimum 55 percent of the total marks and Other Backward Class, Differently Abled Persons and for Children of Freedom Fighters, it shall be minimum 60 percent of the total marks.

(4) The Commission shall invite five times the number of candidates as against the number of vacancies advertised, for the oral interview purely on merit with due regard to the policy on reservation. In case there are more candidates securing the same number of marks as the last candidate, all such candidates shall also be called for the oral interview.

(5) Marks to be allotted for written examination and oral interview shall be notified in advance in the advertisement inviting applications by the Commission.

(6) Such oral interview shall be conducted under CCTV surveillance or videography and the proceedings thereof shall also be videorecorded and such recording shall form a permanent record of the Commission.

We may also advert to Rule 12:

"12. List of successful candidates. - (1) The Commission shall forward to the Government a select list, arranged in the order of merit of the candidates which shall be determined in accordance with the aggregate marks obtained by each candidate at the competitive written examination and oral interview:

Provided that if two or more candidates have secured equal number of marks in the aggregate, their order of merit shall be in the order of the marks secured by the candidates in the written examination and if the candidates have secured equal marks in the written examination then order of merit shall be as per their date of birth and if in case the date of birth is also the same then the candidate possessing higher educational qualifications will be placed higher in the merit list.

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(2) The Commission while drawing the list of selected candidates shall restrict the select list of candidates to the extent of declared number of vacancies. (3) The select list drawn by the Commission shall be valid for a period of one year from the date of receipt of the same by the Government.

(4) The Commission shall, in addition to the select list, also prepare a separate wait list up to 10 % of the vacancies based on the merit of the candidates in their respective category:

Provided further that the candidates from the wait list may be recommended to the Government only on requisition being made by the Government if the candidates recommended earlier are unablne to accept the offer of appointment for any reason. Such wait list shall not be operative for any additional number of posts, other than those advertised. The wait list shall lapse on the declaration of the date of a subsequent examination for the same category or after a period of one year from the date of preparation of such wait list, whichever is earlier." (10) Rule 10 contemplates the holding of a competitive examination and oral interview. The competitive examination is to be conducted by the appellant in the manner notified by the Government from time to time as pointed out by Mr. Vinay Navare, learned senior counsel. The proviso provides the appellant with the power to hold a screening test required for shortlisting of candidates. The manner in which it is to be held is a matter to be decided by the Commission from time to time. It is most pertinent to note that Rule 10(3) specifically declares that a candidate must obtain a minimum passing percentage in the competitive written examination. It is pegged at 65 per cent of the total marks. The percentage is purportedly reduced in the case of certain categories.

Next, we must notice that Rule 10(5) declares the marks to be allotted for written examination and oral interview is to be notified in the advertisement inviting the applications by the Commission. Here, as Mr. Pratap Venugopal, learned counsel, rightly points

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out the Commission cannot be found to have acted contrary to the Rules insofar as, the Commission has, in the advertisement, declared the marks to be alloted for the written examination and oral interview. What is conspicuous by its absence in Rule 10 is any minimum to be obtained by any candidate in the interview. The matter does not end here. (11) Bearing considerable resemblance as we shall presently see with the law in the facts is the decision of this Court starting with P. K. Ramachandra Iyer (supra), Rule 12 declares that the Commission is duty bound to forward to the Government the select list. The select list is to be arranged in the order of merit of the candidates. The select list is to be sent arranged in the order of merit which, in turn, is to be determined in accordance with the aggregate marks obtained by each candidate at the competitive written examination and oral interview. The rule maker was conscious of the fact that it has prescribed a separate minimum to be obtained by candidate in the written examination. It also contemplated the holding of an interview but as regards the interview a separate minimum was not stipulated. But at the same time, the law giver has contemplated that the Commission is to prepare a select list wherein merit would dictate the order in which the select list is to be prepared and all that it is to do is to total up the marks obtained by the candidate in the competitive written examination and the oral interview. In other words, the merit list would be dictated by the performance in the competitive examination and interview subject only, no doubt, to the qualification that only those candidates who have obtained 65 marks in the written examination would be qualified. We need not be detained by the proviso to Rule 12. ] (12) Rule 12(2) further provides that in drawing the list of selected candidates it shall limit itself to the declared number of vacancies. Wait list is also contemplated. It is on a consideration of the statutory Rules that the High Court has taken the view that the case must be decided in terms of P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) apart

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from K. Manjusree (supra). (13) We may notice in P. K. Ramachandra Iyer (supra), the following: "43. The relevant rules are Rules 13 and 14 of the 1977 Rules, which may be extracted:

"13.Candidates who obtain such minimum marks in the written examination as may be fixed by the Board in their discretion shall be summoned by them for viva voce.

14. After the examination, the candidates will be arranged by the Board in the order of merit in each category (professional subjectwise) as disclosed by the aggregate marks finally awarded to such candidates and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination."

44. Mr Ramachandran, learned counsel for the petitioner contended that Rule 13 does not envisage obtaining of minimum marks at the viva voce test even though it contemplates obtaining minimum marks at the written test so as to be eligible for being called for viva voce test. It was further urged that Rule 14 specified the manner in which merit list is to be arranged. Rule 14 provides that after both written and viva voce tests are held, the candidates will be arranged by the Board in the order of merit in each category (professional subjectwise) as disclosed by the aggregate marks finally awarded to each candidate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. On a combined reading of Rules 13 and 14, two things emerge. It is open to the Board to prescribe minimum marks which the candidates must obtain at the written test before becoming eligible for viva voce test. After the candidate obtains minimum marks or more at the written test and he becomes eligible for being called for viva voce test, he has to appear at the viva voce test. Neither Rule 13 nor Rule 14 nor any other rule

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enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the rules. By necessary inference, there was no such power in the ASRB to add to the required qualifications If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. It however does not appear in the facts of the case before us that because of an allocation of 100 marks for viva voce test, the result has been unduly affected. We say so for want of adequate material on the record. In this background we are not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written test. But the ASRB in prescribing minimum 40 marks for being qualified for viva voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained

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38 marks at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to rules and the merit list prepared in contravention of rules cannot be sustained.

(14) We must next notice Durgacharan Misra (supra): "6. Rules 16, 17, 18 and 19 are the relevant rules which have a material bearing on the question that falls for determination. These rules read as under:

"16. The Commission shall summon for the viva voce test all candidates who have secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be 30 per cent of the total marks in all the papers: Provided that government may after consultation with the High Court and Commission fix higher qualifying marks in any or all of the subjects in the written examination in respect of any particular recruitment.

17. The Chief Justice or any of the other Judges of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test and advise the Commission on the fitness of candidates at the viva voce test from the point of view of their possession of the special qualities required in the judicial service, but shall not be responsible for selection of candidates.

18. The marks obtained at the viva voce test shall be added to the marks obtained in the written examination. The names of candidates will then be arranged by the Commission in order of merit. If two or more candidates obtain equal marks in the aggregate, the order shall be determined in accordance with the marks, secured at the written examination. Should the marks secured at the written examination of the candidate concerned be also equal, then the order shall be decided in accordance

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with the total number of marks obtained in the optional papers.

19. (1) The Commission shall then forward to the government in the Law Department the list of candidates prepared in accordance with Rule 18 indicating therein whether a candidate belongs to Scheduled Caste or Scheduled Tribes.

(2) The list prepared shall be published by the Commission for general information.

(3) The list, unless the Governor in consultation with the High Court otherwise decides, shall ordinarily be in force for one year from the date of its preparation by the Commission."

7. The rule-making authorities have provided a scheme for selection of candidates for appointment to judicial posts. Rules 16 prescribes the minimum qualifying marks to be secured by candidates in the written examination. It is 30 per cent of the total marks in all the papers. The candidates who have secured more than that minimum would alone be called for viva voce test. The Rules do not prescribe any such minimum marks to be secured at the viva voce test. After the viva voce test, the Commission shall add the marks of the viva voce test to the marks in the written examination. There then, Rule 18 states: "The names of candidates will then be arranged by the Commission in the order of merit".

11. In the light of these decisions the conclusion is inevitable that the Commission in the instant case also has no power to prescribe the minimum standard at viva voce test for determining the suitability of candidates for appointment as Munsifs.

15. The Rules have been framed under the proviso to Article 309 read with the Article 234 of the Constitution. Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State. It shall be in accordance with the Rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court. The Rules in question

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have been made after consultation with the Commission and the State High Court. The Commission which has been constituted under the Rules must, therefore faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would, therefore, be illegal and without authority. (15) A question may arise whether the Public Service Commission can depart from the Rules in this regard. Light is shed by the views expressed by this Court in Manjit Singh and Others (supra). We may refer to the following exposition made by this Court. "9.

................................................................................. ................................................................................. ................................................................................. ............................................................................... Where no special qualification or any prescribed standard of efficiency over and above the eligibility criteria is provided by the Rules or the State, it would not be for the Commission to impose any extra qualification/standard supposedly for maintaining minimum efficiency which, it thinks, may be necessary.

................................................................................. ................................................................................. ................................................................................. .............................................................................

10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than the required number of candidates may obtain marks above the cut-off marks, say for example, out of 10,000 if 8000 or 6000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not

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serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so, any candidate who is otherwise eligible up to the 500th position, whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut- off marks.

11. In the case in hand, it was not for the Commission to have fixed any cut-off marks in respect of the reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up-to-the-mark merit as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview." (16) In this regard, we must notice that in the facts of this case of the 1866 candidates who appeared in the screening test / computer test, only 7 candidates which included respondent Nos. 1 to 3 cleared the test. The number stood further reduced to 4 and which again included respondents Nos. 1 to 3. Therefore, when the

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question arose as to how the interview should be conducted, the Commission decided on 16.05.2017 to fix 26 marks out of 40 as cut off marks. It no doubt works out at 60 per cent of the total marks in the interview segment. Rules did not provide for a separate minimum for the interview. The advertisement did not provide for a separate minimum in the interview. It is almost a week before the interview that the Commission took the decision in this regard. We have stated these facts only to highlight that this is not a case where the Commission was faced with the task of having to interview a very large number of candidates. For 6 unreserved posts and 5 reserved posts finally, only 4 emerged as candidates to be dealt with at the final stage viz., the oral interview. This, therefore, is distinguishable, in other words, from the judgment relied upon by Mr. Pratap Venugopal, learned counsel for the appellant viz. M.P. Public Service Commission (supra). That was a case where this Court noted that the appellant Commission therein noting the large number of applications received from the General Category candidates against four posts decided to call only 71 applicants who had 7 years of practice although 188 applicants were eligible, in view of the fact that under Section 8(3)(c) of the provisions applicable in the said case, five years of practice as an Advocate or pleader of Madhya Pradesh was a minimum requirement. It was therefore, a case which though relied upon by the appellant is distinguishable on facts. This is apart from noticing that the appellant has not been able to inform the Court as to whether there was a Rule in the said case similar to Rule 12 as present in this case. As far as Yogesh Yadav (supra) is concerned, this again is not a case which involved a Rule resembling Rule 12 of the Rules. We further may also notice that in the said case recruitment was carried out by the employer itself and it was not done by the recruiting body which the appellant is and which is limited by statutory rules made under Article 309 of the constitution. (17) Para 13 of Yogesh Yadav (supra) is extracted hereinbelow:

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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. The 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 a 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 stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. The fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case [Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] .

(18) Though learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case.

In other words, we would think that in the facts of this case, they are closer to the facts of the case in P.

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K. Ramachandra Iyer case and judgment following the same which we have already noted. As far as Tej Prakash Pathak and Others case is concerned, it again did not specifically involve a Rule similar to Rule 12.

(19) It is true that there is a distinction in the facts with those of the case in K. Manjusree (supra). We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) for the reasons which we have already indicated.

(20) As far as the question relating to the respondent No. 3 not being in possession of the essential qualification, we may notice the following:

It is true that under the Rules, knowledge of Konkani is declared as an essential qualification which the advertisement also reiterates. The interview was held. The writ petition was filed by all respondents together. The contention which appears to have engaged the High Court in the impugned judgment related to the power of the appellant to stipulate for a separate minimum in the interview. The impugned judgment does not reflect even in the slightest way any attempt on the part of the appellant to non-suit the third respondent on the ground that apart from there being no merit in the contention of respondents that Commission did not have the power to stipulate for a separate minimum, respondent No. 3 was even otherwise disqualified. We do not find even a whisper of such a case in the impugned

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judgment. We further notice that there is no case that the appellant has urged this as a ground in the special leave petition. It is true in objection filed in this case in this Court in January, 2022, the appellant has produced what is described as its pleadings in the High Court. We have perused the pleadings. The appellant has not been able to specifically point out any allegation as such dealing with the ineligibility of respondent no. 3 on the ground that he is not possessed of the essential qualification of the kind complained of. It is true also no doubt that the question as to whether a candidate is qualified, in that, he is having knowledge of the Konkani language would appear to be tested in the interview. It is equally true that it is an essential qualification. But as to whether a person would be disqualified on the ground that he was not having particular essential qualification in the facts is a pure question of fact. This is not seen pleaded as such. We reiterate that the impugned judgment does not show that the appellant has urged this before the High Court. Apart from the proceedings of the Selection Board, there is no record produced to show that respondent No. 3 was disqualified on this ground.

We would therefore, think that it may not be appropriate to permit the appellant to raise this question.

(21) We do think that the respondents are justified in pointing out that the High Court is right in not permitting the appellant to contend that the respondents cannot be treated as entitled to be recommended. The question however may arise as to what is the nature of the relief which can be granted. We notice from the reliefs which have been set out in the writ petition that it is as follows:

"(A) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order

to prepare a Select List in terms of the

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Advertisement No. 14/2016 and make recommendations to the Government on the basis of the said Select List in accordance with law;

(B) This Hon'ble Court also be pleased to issue an appropriate writ, order or direction, to quash and set aside the Advertisement dated 21.07.2017 bearing No. 7/2017.

(C) Pending the hearing and final disposal of this Petition, this Hon'ble Court be pleased to stay the execution and operation of the entire Selection Process pursuant to the Advertisement No. 7/2017 dated 21.07.2017;

(D) Ad-interim relief in terms of prayer clause (C);

(E) Any other relief, as deemed fit and proper may please be granted in favour of the Petitioners herein;

(F) For costs."

We have already noticed the relief granted by the High Court.

(22) There is yet another aspect which we must consider. As already noticed, even before the filing of the writ petition, the Commission commenced fresh proceedings. While there is a stay of the impugned judgment, this Court had made it clear that the appointments will be subject to the outcome of the special leave petition.

Since the appellant fails in its challenge to the impugned order, the respondents must finally obtain redress. Accordingly, while we dismiss the appeal, we reiterate the directions contained in the impugned order and it is for Appointing Authority to take the decision in accordance with law in the matter.

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The appeal is dismissed without any orders as to costs.

Appellant will forward the list in terms of the directions by the High Court within a period of four weeks from today. Respondent No. 4 will take a decision on the same in accordance with law within a further period of six weeks from the date of the receipt of the list from the appellant."

8. Reverting to the facts on hand, the petitioner applied for

the post of Assistant Sanitary Sub-Inspector. The

advertisement dated 14.06.2006 invited the applications for

filling-up 53 posts of Assistant Sanitary Sub-Inspector on a

fixed pay. Out of 53 posts, 11 were reserved for Scheduled

Tribes, 40 for Socially and Educationally Backward Class and

02 were unreserved. The respondent belongs to Socially and

Educationally Backward Class with a degree of B.Com. with

42% and the Sanitary Inspector Diploma Examination in

second attempt by securing 58% marks. The Staff Selection

Committee was constituted by the appellant - corporation as

per the provision of the Bombay Provincial Municipal

Corporation Act, 1949. There appears to be no rules as such

for the selection of the Sanitary Inspector. The Staff Selection

Committee has acted as per the norms of assessment fixed

which according to the appellant is within the domain and

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realm of the Staff Selection Committee. It was felt by the

committee that it would be unfair if the candidates who

passed the examination in second or third attempt may get

undue advantage of the higher marks as compared to the

candidates who passed the examination in first attempt,

therefore, the norms of the assessment has been revised by

Resolution No.9 dated 11.09.2006 and prescribed weightage

of 35% marks was given to the candidates who have passed

the examination in more than one trial.

8.1. We have specifically inquired from learned advocate Mr.

Munshaw and it is submitted that the resolution of Staff

Selection Committee dated 24.08.2006 governed the entire

examination. There are no separate rules for the selection.

The respondent gave an application in the prescribed form for

the post of Assistant Sanitary Sub-Inspector pursuant to the

advertisement. As there was no requirement for the

respondent to make a mention that he passed the examination

of Sanitary Inspector Diploma in the second attempt nor was

any requirement form him to furnish the attempt certificate in

respect of Sanitary Inspector Diploma Examination, the Staff

Selection Committee vide its Resolution No.9 dated

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11.09.2006 afteronce the selection list of 59 candidates was

prepared and 40 posts were already filled-up and 11 posts

were filled-up from the waiting list, the same was done on the

basis of the changed criteria. The wait list was scrapped and

canceled and a fresh advertisement for the post of Assistant

Sanitary Sub-Inspector was published by the Corporation on

28.08.2009.

8.2. Admittedly, the process of examination had already been

completed. The resolution which governed the entire process

had fixed the norms and which had permitted out of 100

marks 10 marks for SSC Examination, 60% marks for Sanitary

Inspector Diploma, 20% marks for HSC Examination and 10%

marks for science graduation. The deduction of 02 marks per

trial in respect of each examination also was the norm. These

were the norms which needed to be followed however, on the

ground that there was an administrative inconvenience and in

the event of more then one trial in any of the qualifying

examination, the mark was reduced to 35% regardless of the

actual marks obtained by the candidate concerned. The

respondent's name which otherwise was at serial no. 16 with

merit of 56.95% marks, however, with the changed norms, he

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nowhere figured in the list. The wait list also had been

operated upto serial no. 25. The respondent has not been

posted for the post of Assistant Sanitary Sub-Inspector, hence,

he approached this Court.

8.3. In absence of any statutory rules to govern this

examination, the norms set by the committee where the only

guiding criteria for the Staff Selection Committee that the

candidates were made known of these norms and accordingly,

they have progressed in the selection process. After the

selection process got completed, the norms have been

amended and for all those who have cleared the examination

of Sanitary Inspector Diploma in more than one trial has been

prescribed the weightage of 35% marks only. The respondent

was issued the appointment letter but, when he came to join,

on verification of testimonials, it was learnt that he passed the

examination of Sanitary Inspector Diploma on second attempt.

As per the earlier norms, since the respondent secured 58.63

marks in Sanitary Inspector Diploma, calculating the same on

the basis of weightage at 60% as if he has passed the

examination of SI Diploma in first attempt, he was given 35.18

marks. However, when it was learnt that the Sanitary

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Inspector Diploma Examination was cleared in second trial,

his percentage was treated as 35% qua the said examination

and thus, he would get 21 marks, and thus, his 14.18 marks

have been reduced. Deducting the same, his total merit went

down to 42.77 marks instead of earlier merit of 56.95 marks.

As a result of such reduction, his number got dropped from

the merit list which consecutively disentitled him to get any

appointment.

8.4. Even if such norms are applied uniformly to all

candidates, in absence of any rules for selection of candidates,

the norms fixed by the Staff Selection Committee if were to be

operated, they surely cannot be changed at the time when the

testimonials of the candidates are examined. In the earlier

fixed norms, nowhere there is any reference of reduction of

such marks and reduction of marks to the 35% in the

weightage at 60% in Sanitary Inspector Diploma. Nobody can

compel the Staff Selection Committee to adopt a particular

mode or method of assessment of candidate as rightly pointed

out by the appellant, however, in the decision of Goa Public

Service Commission (supra) also there could not have been

any change.

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9. This is a clear case of changing of the rules of the game

not after the game was started, but, after the game was over.

It is also not the law that when the matter is referred to the

larger Bench, the decision would cease to posses its binding

effect. Moreover, the only ground given is of administrative

inconvenience and that also is not sustainable ground.

10. Resultantly, we do not find any need for interfering with

the judgment and order passed by the learned Single Judge.

Appeal stands dismissed.

11. Since the main appeal is dismissed, the Civil Application,

if any, stands disposed of accordingly.

(SONIA GOKANI, J)

(SANGEETA K. VISHEN,J) Bhoomi