BAROT VIJAYKUMAR BALAKRISHNA & ORS. versus MODH VINAYKUMAR DASRATHLAL & ORS.

Citation: [2011] 7 S.C.R. 154 · Decided: 05-07-2011 · Supreme Court of India · Bench: AFTAB ALAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2011] 7 S.C.R. 154 
A 
BAROT VIJAYKUMAR BALAKRISHNA & ORS. 
-
v. 
MODH VINAYKUMAR DASRATHLAL & ORS. 
(Civil Appeal Nos. 4959-4962 of 2011) 
B 
JULY 5, 2011. 
[AFTAB ALAM AND R.M. LODHA, JJ.] 
Service Law: 
c 
Recruitment - Selection of Assistant Public Prosecutors 
- Minimum qualifying mark for viva voce, though prescribed 
in the Rules, not specified in the advertisement - State Public 
Service Commission fixing cut off mark for viva voce after the 
result of written examination, and notifying the candidates 
D called for interview about it - HELD: The course followed by 
the Commission was in compliance with the ru(es and it did 
not cause any prejudice to any candidate either- Thus, there 
is no illegality at all in the selection process much less any 
bias or malice of any kind - Assistant Public Prosecutor, 
E Gujarat General State Service Class II Recruitment 
(Examination) Rules, 2008 - r. 12(3). 
Writ petitions were filed before the High Court 
challenging the selection of Assistant Public Prosecutors 
on the ground that introduction of minimum qualifying 
F mark for the viva voce after the commencement of the 
selection process was illegal and actuated by bias on the 
part of the State Public Service Commission. The Single 
Judge of the High Court dismissed the writ petitions. 
However, the Division Bench in the intra-court appeals 
G filed by the writ petitioners, quashed the select list and 
directed that a fresh list be drawn up on the basis of the 
aggregate of the marks.obtained by the candidates in the 
written test and viva voce regardless of the minimum 
qualifying mark prescribed by the Commission for the 
H 
154 
BAROT VIJAYKUMAR BALAKRISHNA v. MODH 
155 
VINAYKUMAR DASRATHLAL 
viva voce. Aggrieved, the 102 selected candidates, who 
A 
were appointed and were not parties in the writ petitions, 
and the Commission filed the appeals. 
Allowing the appeals, the Court 
HELD: 1.1. In the facts and circumstances of the 
B 
case, there is no illegality in the selection process much 
less any bias or malice of any kind. It is necessary to bear 
in mind that no objection can be taken to the fixing of the 
cut off mark separately for the viva voce as that is the 
mandate of the statutory rules-governing the recruitment. 
C 
[para 20-21] [166-H; 167-A-F-G] 
1.2. Further, the marks obtained by the short listed 
candidates in the written test were kept in a sealed cover 
and those were taken out only after the oral interview of 0 
all the candidates was over. At the time a candidate 
appeared for the interview, the members of the interview 
board had no means to know the marks obtained by him/ 
her in the written test. In such a situation it could not be 
possible for the interview board to purposefully exclude 
a candidate by giving less than the minimum qualifying 
E 
mark for the viva voce even though he/she might have 
been selected on the basis of the marks obtained in the 
written test alone. In the facts of the case, the examples 
cited by the respondents do not show that there was any 
arbitrariness or play of bias in giving marks to the 
F 
candidates in the viva voce or that there was any flaw in 
the selection process making it liable to be struck down. 
[para 22-23] [168-A-E] 
Ashok Kumar Yadav v. State of Haryana, 1985 (1) 
G 
Suppl. SCR 657 = (1985) 4 SCC 417 - referred to. 
1.3. It is true that the better and the more proper way 
to give effect to the provision of r. 12 (3) of the Assistant 
Public Prosecutor, Gujarat General State Service Class II 
H 
156 
SUPREME COURT REPORTS 
(2011) 7 S.C.R. 
A Recruitment (Examination) Rules, 2008 was to specify the 
minimum qualifying mark for the viva voce also in the 
advertisement itself. But that was not done. Though the 
rules framed under Article 309 of the Constitution 
governing the selection process mandated that there 
8 would be minimum qualifying marks each for the written 
test and the oral interview, the cut off mark for viva voce 
was not specified in the advertisement. In view of the 
omission, there were only two courses open. One, to 
carry on with the selection process and to complete it 
C without fixing any cut off mark for the viva voce and to 
prepare the select list on the basis of the aggregate of 
marks obtained by the candidates in the written test and 
the viva voce. That would have been clearly wrong and 
in violation of the statutory rule governing the selection. 
On behalf of the respondents themselves, it was 
D accepted tha

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