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Judgment
HARPREET SINGH BRAR J. (Oral)
With the consent of all the parties, the aforementioned writ petitions shall be disposed of by this common order as they arise from a similar factual matrix and pose identical questions of law. However, for the sake of brevity, the facts are taken from CWP-751-2023.
The present writ petition has been filed under Articles 226/227 of the Constitution of India for the issuance of a writ in the nature of Certiorari for quashing the order/announcement dated 13.12.2022 (Annexure P-24) passed by respondent No. 2-Haryana Public Service Commission, whereby fresh criteria/minimum qualification was fixed for interview thereby changing ‘Rules of the Game’ in the middle of the selection process. Further, for issuance of a writ in the nature of Certiorari for quashing the Result dated 23.12.2022 (Annexure P-25) to the extent whereby the petitioners have not been selected. It is further prayed that a writ in the nature of Mandamus be issued directing the respondents to decide the representation of the petitioners by passing a speaking order. Lastly, it is prayed that during the pendency of the present writ petition one post of Assistant Professor (Orthopaedics) and Assistant Professor (Anesthesiology) each, under BCA category, be kept reserved.
FACTUAL BACKGROUND
Respondent No.3-Director General Medical Education and Research, Haryana (DGMER) issued an advertisement dated 31.05.2022 (Annexure P-1) for 189 vacant posts of Teaching Faculty (Assistant Professor) in Super Speciality and Broad Speciality on regular basis in Government Medical Colleges in the State. Petitioner No.1 applied against one post of Broad Specialty (Medical)-Orthopaedics in BCA category while petitioner no.2 applied against one post of Broad Speciality (Medical)-Anesthesiology under BCA category as well. According to the selection criteria laid down in the advertisement (supra), 75 marks were to be awarded against pre-merit criteria while 25 marks were to be awarded on the basis of interview. Petitioner No.1 obtained 44 marks against the pre-merit criteria while petitioner no.2 obtained 40 marks, and both were called for interview vide orders dated 07.12.2022 and 08.12.2022 (Annexure P-23 and P-23A, respectively).
Thereafter, vide order dated 13.12.2022 (Annexure P-24), minimum marks- 50% marks for General Category and 45% marks for all the reserved categories, were prescribed for qualification of the interview. The petitioners appeared for the interview and it was found that no other candidate had reached this stage for the respective posts against which they had applied. The result was declared on 23.12.2022 (Annexure P-25) and the petitioners were not selected. Consequently, the petitioners submitted representations on 24.12.2022 and 30.12.2022 (Annexure P-26 and P-27, respectively) but no reply has been received till date.
CONTENTIONS
Learned Senior counsel for the petitioners inter alia contended that no minimum marks have been prescribed to qualify the interview stage either in the advertisement or in the announcements (Annexure P-23 and P-23A) vide which the petitioners were called for interview. The respondent-HPSC has abruptly issued the impugned announcement dated 13.12.2022 (Annexure P-24) prescribing a minimum criteria for qualifying interview as 50% for General category and 45% for all reserved categories. As such, prima facie, the respondent-HPSC has changed the rules of the game after the selection process had already started, which is expressly forbidden by the Hon’ble Supreme Court in K.Manjushree vs. State of Andhra Pradesh (2008) 3 SCC 512, Hemani Malhotra vs. High Court of Delhi 2008 (2) SCT 736 and Sivanandan C.T. and others vs. High Court of Kerala and others 2023 INSC 709. He further argues that only 90 candidates were called for interview against 189 posts of Teaching Faculty and, under the BCA category, only one applicant qualified to this stage against the posts of Assistant Professor (Orthopaedics) and Assistant Professor (Anesthesiology) each. As such, unnecessary weightage has been given to the interview while the academic career of post-graduate doctors, assessed by means of the pre-merit criteria, is more important to ascertain their capacity as Assistant Professors. Additionally, both the petitioners have obtained their undergraduate and post graduate degrees from government medical colleges and are currently working as Senior Residents in Pandit B.D. Sharma Post Graduate Institute of Medical Sciences, Rohtak (hereinafter ‘PGIMS’), which makes it suspicious as to how they could not secure 45% marks, as subsequently prescribed by the respondent-HPSC vide impugned announcement dated 13.12.2022 (Annexure P-24).
Per contra, learned Senior counsel for respondent-HPSC submitted that the name of petitioner No.2 has been recommended for appointment by the respondent-HPSC and thus, the present writ petition deserves to be dismissed qua petitioner No.2. He further argued that the contention of the petitioners with respect to modification of selection criteria is without merit as the selection was carried out in terms of the advertisement (supra) i.e. 75 marks for academic qualification, as per the pre-merit criteria, and 25 marks for the interview. No fresh criterion has been added to the same vide impugned announcement dated 13.12.2022 (Annexure P-24). The interview remains worth 25 marks, as originally advertised. He further submitted that the respondent-HPSC has been entrusted with the responsibility to conduct interviews for these highly specialised posts and since the candidates were only assessed on the basis of their academic qualifications, it was decided that minimum qualifying marks should apply to the interview to maintain high standard of competence.
Learned Senior counsel further contended that while the condition of minimum qualifying marks in the interview was introduced vide impugned announcement dated 13.12.2022 (Annexure P-24), the petitioners only raised an objection qua the same three weeks after they had been declared unsuccessful in the selection process. Moreover, it is settled law that cut off marks can be fixed even at the stage of final selection to maintain the quality of candidates. He also argued that fixing minimum marks for the interview is akin to prescribing a cut-off. Further still, an advertisement for recruitment is merely an invitation to apply and thus, the State has no legal duty to necessarily fill vacancies Since injury lies only where a statutory duty exists, in absence of such obligation on the part of the State, petitioner No.1 does not possess an indefeasible right to be appointed.
OBSERVATION AND ANALYSIS
Having heard learned counsel for the parties and after perusing the record of the case, it transpires that the respondent-DGMER issued an advertisement on 29.04.2022 (Annexure P-1) for recruitment of Teaching Faculty (Assistant Professor) on regular basis in Government Medical Colleges in the State. The advertisement (supra) provides a two-tiered selection scheme which includes award of 75 marks in accordance with the pre-merit criteria and 25 marks for the interview. A Selection Committee consisting of various experts from PGIMS was constituted by the State Government, for short-listing of candidates on the basis of the pre-merit criteria. The State Government had also decided to entrust the responsibility to conduct the interviews to the respondent-Commission. Accordingly, respondent-HPSC issued an interview schedule on 07.12.2022 (Annexure P-23).
The issue in the present writ petition(s) arose when the respondent-HPSC issued the impugned announcement dated 13.12.2022 (Annexure P-24) imposing minimum qualifying marks to clear the stage of interview i.e. 50% for general category and 45% for the reserved categories. It is the case of the petitioner(s) that the respondent-HPSC has changed the rules of the game by introducing such a condition when the game was already in motion. Accordingly, the following issue arises for adjudication before this Court:
Can the Haryana Public Service Commission, being the recruiting authority, deviate from the criteria declared in the advertisement dated 31.05.2022 (Annexure P-1) in the absence of any rules or stipulation in the requisition, at the last stage of the selection process i.e. the interview?
● Supremacy of Selection Criteria laid down by the Employer
The opportunities for public employment are scarce and highly coveted. For most of the populace, the promise of financial stability and upward social mobility such employment opportunities bring is rather sacrosanct. The significance thereof is also illustrated by the fact that equality in the matters of public employment has been listed as a fundamental right in the Constitution of India. As such, it is of the utmost importance that the recruiting authorities ensure that the selection processes to such posts remains transparent and free from the vice of arbitrariness.
On that note, it appears that the advertisement (supra) has been issued by the respondent-DGMER. A perusal thereof would also indicate that a rather detailed selection criteria has been published for the benefit of the candidates. The pre-merit criteria worth 75-marks is further subdivided into various heads, which further range from 0.5 to 15 marks. However, as far as the interview is concerned, the advertisement (supra) merely indicates that this stage shall be worth 25 marks. A corrigendum dated 27.09.2022 (Annexure P-2) was subsequently published, however, no alteration was made with respect to the selection criteria as far as the interview is concerned. Notably, the task of conducting the said interview, for candidates short-listed by the Selection Committee, was entrusted to the respondent-HPSC. In furtherance thereof, the respondent-HPSC issued announcement dated 07.12.2022 (Annexure P-23) and 08.12.2022 (Annexure P-23/A) whereby the list of short-listed candidates was published and it was informed that the interviews shall be held on 19.12.2022 and 20.12.2022.
This Court is of the considered opinion that the respondent-HPSC has erred in prescribing the minimum qualifying marks for interview, especially after announcing the list of short-listed candidates. The scheme as provided in the advertisement (supra) makes it clear that selection shall be made in terms of marks obtained per the pre-merit criteria (worth 75 marks) and in the interview (worth 25 marks). It must be duly noted that the scheme of selection has been laid by the respondent-DGMER i.e. the employer. The respondent-HPSC was merely engaged for conducting interviews. Neither the advertisement (supra) nor any other material available on the record indicates that the respondent-HPSC was allowed to make modifications to the existing selection criteria. Additionally, the respondent-DGMER, being the employer as well as a specialised body entrusted with regulating medical education, ought to be perceived as the best judge for deciding upon suitability of candidates for the advertised roles. A two-Judge bench of the Hon’ble Supreme Court in Maharashtra Public Service Commission through its Secretary vs. Sandeep Shriram Warade and others (2019) 6 SCC 362, speaking through Justice Navin Sinha, has made the following observations in this regard:
“10.The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”
(emphasis added)
● Modification of the Rules of the Game
Further still, the respondent-HPSC introduced the minimum qualifying marks for the interview vide announcement dated 13.12.2022 (Annexure P-24). However, at that time, the list of selected candidates and the dates for interview (19.12.2022 and 20.12.2022) was already made public vide announcement dated 07.12.2022 and 08.12.2022 (Annexure P-23 and P-23A, respectively). It is the case of the respondent-HPSC that the prescription of minimum marks was made before the actual interview, with the intention to maintain high standards in the recruitment. Certainly, if expressly mentioned in the advertisement, the recruiting authority can suggest parameters for where the rules are silent. However, it is necessary that such additions are neither arbitrary nor contrary to the applicable rules and the scheme of process. Reliance in this regard can be placed on the judgement rendered by the Constitutional Bench of Hon’ble Supreme Court in Tej Prakash Pathak vs. Rajasthan High Court, 2024 INSC 847 wherein it has been clarified that any benchmark sought to be set by a recruiting authority must be stipulated before the commencement of the recruitment process. Speaking through Justice Manoj Misra, the following was opined:
“(A) COMMENCEMENT/END OF THE RECRUITMENT PROCESS
13.The process of recruitment begins with the issuance of advertisement and ends with the filling up of notified vacancies. It consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for [11] appointment.
[11 A.P. Public Service Commission v. B. Sarat Chandra, (1990) 2 SCC 669; and Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637.] xxx xxx xxx
30.…a degree of discretion is necessary to be left to the employer to devise its method/ procedure to select a candidate most suitable for the post albeit subject to the overarching principles enshrined in Articles 14 and 16 of the Constitution as also the Rules/Statute governing service and reservation. Thus, in our view, the appointing authority/recruiting authority/competent authority, in absence of Rules to the contrary, can devise a procedure for selection of a candidate suitable to the post and while doing so it may also set benchmarks for different stages of the recruitment process including written examination and interview. However, if any such benchmark is set, the same should be stipulated before the commencement of the recruitment process… The decision in K. Manjusree (supra) does not prescribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played.”
(Emphasis added)
At this stage, it may be profitable to refer to the judgment rendered by a two-Judge bench of Hon’ble Supreme Court in Hemani Malhotra (supra) where a reference has been made to K. Manjusree (supra) and speaking through Justice J.M. Panchal, the following has been held:
“9.From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-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. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal.”
(Emphasis added)
Additionally, the advertisement (supra) makes it clear that the interview shall be worth 25 marks in the overall scheme, but this stipulation does not, by itself, imply the existence, or the permissibility of subsequent introduction of a minimum qualifying threshold for that component. Learned Senior counsel has argued that it is the prerogative of the respondent-HPSC to introduce cut-off marks at any stage of selection. However, the respondent-HPSC has not merely added a routine cut-off but significantly altered the manner in which the game shall be played. While the weightage of a stage pertains to how much a component counts towards the aggregate, the qualifying threshold answers a different question i.e. whether a candidate can be eliminated from consideration, regardless of aggregate merit. The interview may still be worth 25-marks, however, eligibility of the candidates has been altered by this subsequent prescription (Annexure P-24) irrespective of their merit. In setting minimum qualifying marks for the interview, the respondent-HPSC has attempted to nullify the effect of the marks obtained in terms of the carefully curated pre-merit criteria. The selection scheme provided in the advertisement (supra) makes it clear that selections will be made based on the aggregate marks secured in both the stages. Thus, the respondent-HPSC cannot unilaterally alter the criteria in a manner where one stage is rendered irrelevant, especially in absence of relevant authorisation in this regard.
It may also be profitable to refer to the judgement rendered by a two-Judge Bench of Hon'ble Supreme Court in Salam Samarjeet Singh vs. High Court of Manipur at Imphal, 2024 INSC 632, wherein it was opined that when the selection scheme calls for aggregate marks in viva-voce and written examination to be considered for final selection, in terms of statutory rules therein, the same cannot be overcome by means of administrative instructions. Speaking through Justice Hrishikesh Roy, the following was observed:
“23.Applying the above legal proposition, it is seen that in this matter, the mode of evaluation was provided for in the Rules. This is not a case where the Rules were silent. Mr. Hansaria, placed considerable reliance on the decision of this Court in Kavita Khamboj(supra), where a three-judge bench of this Court while upholding the prescription of minimum 50% marks in interview for promotion as District Judges, observed that the rules can be supplemented to fill in the gaps. However, it particularly distinguishes the instances where the Rules specifically provide for the mode of evaluation. In this regard, it is noteworthy that the Supreme Court speaking through DY Chandrachud CJI, itself notes that the matter would have been entirely different if the Rules specifically provided that the final merit list would be on the basis of aggregate marks:
“52.Moreover, the Rules in the present case are entirely silent in regard to the prescription of a minimum eligibility for clearing a competitive test, on the one hand, and the viva voce, on the other hand. If the Rules were to specifically provide in a given case that the criterion for eligibility would be on the combined marks of both the written test and the viva voce, the matter would have been entirely different. [P.K. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141, para 44 : 1984 SCC (L&S) 214] Rule 6(1)(a) and Rule 8 being silent as regards the manner in which merit and suitability would be determined, administrative instructions can supplement the Rules in that regard. This is not a case where the Rules have made a specific provision in which event the administrative instructions cannot transgress a rule which is being made in pursuance of the power conferred under Article 309 of the Constitution. For instance, if the Rules were to provide that there would be a minimum eligibility requirement only in the written test, conceivably, it may not be open to prescribe a minimum eligibility requirement in the viva voce by an administrative instruction. Similarly, if the Rules were to provide that the eligibility cut-off would be taken on the basis of the overall marks which are obtained in both the written test and the viva voce, conceivably, it would not be open to the administrative instructions to modify the terms.” xxx xxx xxx
26.In view of the above discussion, we hold that the executive instructions cannot override statutory Rules where the method of final selection by combining the cumulative grade value obtained in the written and the viva-voce examinations is specified categorically.”
(Emphasis added)
● The Test of Articles 14 and 16 of the Constitution of India
Article 14 recognises that arbitrariness and fair play are sworn enemies and thus, strikes at the heart of arbitrary State action by demanding that exercise of any public power only be guided by reason and equality. Moreover, the overt display of fair play is integral to the idea of natural justice and a failure to abide by the same would not merely amount to an administrative misconduct but would be a direct affront to the Rule of Law. This principle was further enunciated by a Constitution Bench of the Hon’ble Supreme Court in Rojer Mathew vs. South Indian Bank Ltd. and others, (2020) 6 SCC 1, where, speaking through Justice Deepak Gupta, the following was held:
“352.If Rule of law is absent, there is no accountability, there is abuse of power and corruption. When the Rule of law disappears, we are ruled not by laws but by the idiosyncrasies and whims of those in power.”
On that note, admittedly, vide announcement dated 13.12.2022 (Annexure P-24), a qualifying benchmark directly impacting eligibility of candidates, has been introduced for the stage of interview that was set to commence in about 06 days i.e. 19.12.2022 onwards. Not only does such eligibility-limiting modification defy the legitimate expectation in the candidates to be judged per the notified criteria but also creates a perception of arbitrariness. Tritely, legitimate expectations of individuals can be superseded by public interest, however, it is on the State to establish how the latter is being served by its decisions. It is the case of the respondent-HPSC that the additional checkpoints merely ensure that the best available faculty is provided to Government Medical Colleges. Nevertheless, the defence of public interest does not exempt the actions of the respondent-HPSC to be scrutinised from the lens of Article 14 of the Constitution. The 75-marks awarded under pre-merit/academic criteria were not distributed in an unstructured or nebulous manner, rather, the candidates were assessed using a detailed, multi-dimensional formula, devised by experts of respondent-DGMER. As such, mere absence of a written exam does not in itself diminish the quality of the recruitment, especially when the selection scheme actually employed has been recommended by experts. As such, considering that the selection scheme was complete and express, it does not satisfy the objective standards of reason and justice for the respondent-HPSC to modify the selection criteria as provided in the advertisement (supra) by introducing minimum qualifying marks at the interview stage.
The arbitrariness of the act and conduct of the respondent-HPSC is supplemented by the timing of the modification. At the time of introduction of the minimum qualifying marks were introduced i.e. on 13.12.2022 (Annexure P-24), the respondent-HPSC was already aware of all the candidates short-listed for the interview. A specific argument has been raised by learned counsel for the petitioner that the selection criteria was modified vide announcement dated 13.12.2022 (Annexure P-24) in order to discount the petitioner from the zone of consideration. Even though no direct evidence of mala fide has been brought to the fore, the surrounding circumstances raise concern. The modification made by the respondent-HPSC discounts certain candidates, including the petitioner, from the zone of consideration solely on the basis of interview marks while the original selection scheme sought for selections to be made on the basis of aggregate merit i.e. marks obtained under the academic criteria and the marks obtained in the interview. Altering the criteria, while being aware of the details of the shortlisted candidates, merely 06 days before the interview process was scheduled to commence, has cast an air of doubt around the methodology adopted by the respondent-HPSC. Being a State-run recruiting agency, the respondent-HPSC cannot afford such doubts regarding its credibility as Caesar’s wife must remain above all suspicion.
● Maintainability
The Hon’ble Supreme Court in Dr. (Major) Meeta Sahai v. Union of India, (2019) 20 SCC 17 has categorically held that the doctrine of estoppel would not bar a candidate from challenging misconstruction of statutory rules or the constitutional scheme, in spite of participation in the selection process. Speaking through Justice Dipankar Datta, the following was observed:
“17.However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” (Emphasis added)
Further, the Hon’ble Supreme Court in Civil Appeal No. 2103 of 2020, titled as ‘Ramjit Singh Kardam and others vs. Sanjeev Kumar and others,’ has laid down that a candidate unaware of criteria of selection under which they were subjected in process of selection cannot be estopped from challenging it.
Thus, the petitioner(s) cannot be said to have waived their right to challenge the impugned announcement dated 13.12.2022 (Annexure P-24) merely because they appeared for the interview on 19.12.2022 and 20.12.2022, pursuant to the announcements dated 07.12.2022 and 08.12.2022 (Annexure P-23 and P-23/A, respectively). Moreover, where an administrative action is void for want of authority, or for being ultra vires the very scheme under which it presents to have been issued, the question of delay or laches on the part of the person challenging such action pales into insignificance. A void act does not acquire validity merely by efflux of time as the vice goes to the very root of the authority to act, which cannot be cured by acquiescence.
CONCLUSION
In view of the discussion above, all the aforementioned writ petitions are allowed in the following terms:
The order/announcement dated 13.12.2022 (Annexure P-24) passed by respondent No. 2-Haryana Public Service Commission, whereby fresh criteria/minimum qualification was fixed for interview is hereby quashed.
The Result dated 23.12.2022 (Annexure P-25) is set aside to the extent of exclusion of the petitioner(s) for the reason of failure to meet the minimum qualifying marks in the interview i.e. 50% for the unreserved category and 45% for the reserved categories.
The respondent-HPSC is directed to re-evaluate and finalize the selection process afresh, solely on the basis of the criteria originally stipulated in the advertisement dated 31.05.2022 (Annexure P-1), i.e., by calculating aggregate merit out of 100 marks (75 marks for pre-merit academic credentials and 25 marks for interview) without applying any minimum qualifying cut-off for the viva voce.
In the event that the petitioner(s) are found successful upon such aggregate evaluation, the respondents/competent authority shall issue the consequential appointment letter to them, if they are found otherwise eligible. Such selected candidates/petitioner(s), if any, shall be entitled to pay only from the day of joining service but the notional benefits shall be calculated from the date of such benefits being disbursed to their batch-mates.
Insofar as petitioner No. 2 in CWP-751-2023 is concerned, since her name has already been recommended for appointment by respondent-HPSC, no further directions are required, and the writ petition (CWP-751-2023) qua her stands disposed of having been rendered infructuous.
Pending application(s), if any, shall also stand disposed of.
A photocopy of this order be placed on the paperbooks of the connected matters.