LexHEMANI MALHOTRA versus HIGH COURT OF DELHI
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[2008] 5 S.C.R. 1066 A HEMANI MALHOTRA ~- v HIGH COURT OF DELHI (Writ Petition (Civil) No. 490 of 2007) B APRIL 3, 2008 (K.G. BALAKRISHNAN, CJ AND J.M. PANCHAL, J.) .. Service Law: c Dirf:)ft recruitment to Delhi Higher Judicial Service - Prescribing of minimum qualifying marks for viva voce test after commencement of selection process by High Court - HELD: Illegal - Besides, total marks for written test being 250, prescribing 750 marks for viva voce test was on higher side - Respondent directed to add marks obtained by petitioners in D written examination to marks obtained by them in viva voce test and to prepare a combined merit list along with other ' selected candidates - There being 16 vacancies notified and f only five candidates including the petitioners having been found qualified for viva voce test, respondent directed to E . declare petitioners as selected - However, petitioners would neither be entitled to seniority nor to salary with retrospective effect - Prospective operation of judgment. The instant writ petitions were filed by two candidates F who had appeared in written examination and interview for recruitment to Delhi Higher Judicial Service, but were . not selected. The respondent-High Court of Delhi invited applications for filling up 16 posts in Delhi Higher Judicial Service by direct recruitment. It was notified that the felection process would be in two stages: (a) a written G examination comprising one paper of 250 marks, and (b) interview/viva voce. Minimum qualifying marks in written examination were 55% for general candidates and 50% for Scheduled Castes and Scheduled Tribes candidates. The written examination was conducted on 12.3.2006. It H 1066 HEMANI MALHOTRA v. HIGH COURT OF DELHI 1067 --I was stated that the High Court did not at all declare the A result of written examination. But, five candidates including the two writ petitioners received letters dated 14.6.2006 for interview to be held on 12.7.2006. The interview was, however, deferred from time to time and ultimately viva voce test was conducted on 27.2.2007 .. B • Meanwhile, the Full Court in its meeting on 13.12.2006 _...\ prescribed minimum qualifying marks for viva voce, i.e., 55% for general candidates and 50% for Scheduled Castes and Scheduled Tribes candidates out of 750 marks. A notice dated 10.4.2007 was issued mentioning c that only three candidates were selected. Names of the two petitioners did not figure in the said notice. It was submitted for the petitioners that the Selection Committee did not draw the final merit list on the basis of the combined result of written examination and the D ~ interview, and had that been done, they would have obtained the fourth or the fifth position in the final merit list as orily five candidates had qualified for the viva voce test. It was stated that according to the information supplied by the High c·ourt, one petitioner secured 142 E marks out of 250 marks in written examination and 363 marks out of 750 marks in viva voce; whereas the other secured 153.50 marks in written examination and 316 marks in viva voce test. It was contended that prescribing cut off marks for viva voce test after the process for F selection had commenced was illegal. It was, therefore, prayed that a direction be issued to amend the selection list by including the names ofthe two petitioners therein. The stand of the respondent-High Court was that the two petitioners belonged to the General category and they G could not secure the minimum marks stipulated for the viva voce test and, therefore, their names were not recommended for appointment. It was also contended for the resporidents that the Supreme Court while deciding K. Manjusree did lot notice its earlier decisions and, H 1068 SUPREME COURT REPORTS . [2008] 5 S.C.R. A therefore, the decision in K. Manjusree be regarded as per incuriam or should be referred to a larger Bench for reconsideration. The question for consideration before the Court was whether introduction of the requirement of minimum 8 marks for interview/viva voce, after the entire selection process was completed, would amount to changing the rules of the game after the game was played. Allowing the writ petitions in part, the Court C HELD: 1.1 Prescribing minimum marks for viva-voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority
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