Sabina, J. - (1.) PETITIONERS have filed this petition challenging the selection list Annexure P -5.
(2.) CASE of the petitioners, in brief, is that they had applied for the post of Data Entry Operators as advertised vide Annexure P -2. Petitioners appeared in the written test and qualified the same. Petitioners also appeared in the interview. At the time of interview, petitioners came to know that marks were being awarded for the candidates who were having Rural, Sports, NCC and Post Graduation certificates. The result of the successful candidates was declared vide impugned selection list Annexure P -5. Petitioners were not selected, although, they had obtained higher marks in the written test than the last three selected candidates. Petitioners have prayed by way of this petition that the selection list be re -framed after including the written test marks in the marks awarded to the candidates at the time of interview. Learned counsel for the petitioners has submitted that point in controversy in the present case was short. Petitioners had appeared in the written test as well as interview. However, the selection list had been prepared by taking into consideration only the marks obtained by the candidates at the time of interview. Marks obtained by the candidates in the written test had not been taken in consideration while preparing the selection list. The respondents had failed to clearly state that the written test was merely an elimination test and selection would be made only on the basis of the marks obtained by the candidates in the interview. Therefore, the impugned selection list was liable to be set aside. In support of his arguments, learned counsel has placed reliance on 'Praveen Singh versus State of Punjab, : 2001(1) S.C.T. 284' wherein it was held as under: - A close look at the qualification as prescribed and the information sheet, however, in our view would depict otherwise. The qualifications prescribes that the candidates will be required to qualify for the following written test at the time of recruitment and the qualification standard in the test has been fixed to be at 33% pass marks in each paper with 45% however in the aggregate (emphasised) and paragraph 4 of the Information sheet, as above, in no uncertain term records that no candidate shall be eligible to appear in the viva voce test unless he obtains 33% marks in each paper and 45% marks in the aggregate. Reading the two requirements as above, in our view question of having the written test written off in the matter of selection does not and cannot arise. Had it been the intent of the Service Commission, then and in that event question of there being a totality of marks would not have been included therein and together with specified marks of viva tests, would not have been there neither there would have any requirement of qualifying pass marks nor there would have any aggregate marks as noticed above. Further, in the event, the interview was the sole criteria and the written test being treated as qualifying test, the Public Service Commission ought to have clearly stated that upon completion of the written elimination test, selection would be made on the basis of the viva voce test only as is available in the decision of Ashok & Ors. v. State of Karnataka, : 1992(1) SCC 28: 1992(1) SCT 35(SC). Be it noted that there is always a room for suspicion for the common appointments if the oral interview is taken up as the only criteria. Of course, there are posts and posts, where interviews can be a safe method of appointment but to the post of a Block Development Officer or a Panchayat Officer wherein about 4500 people applied for 40 posts, interview cannot be said to be a satisfactory method of selection though however it may be a part thereof. In the factual score we have the advantage of having the Rules prescribing the mode and method of appointments and specific marks are earmarked for written examinations of various subjects together with totality of marks for viva voce test. As a matter of fact out of 450 marks only 50 marks have been allotted for interview by the Service Commission itself -why these 400 marks allotted for a written examination in four different subjects, if interview was to be the guiding factor: there has been however, no answer to the same excepting that the Court ought not to interfere in the matter of selection process in the absence of mala fides -true it is that in the event the selection is tainted with mala fides, it would be a plain exercise of judicial power to set right the wrong but is it also realistic to assume that when the Commission in clear and categorical language recorded that 450 marks would be the total marks for the examination and out of which only 50 marks are earmarked for viva voce test, the Commission desired that these 50 marks would be relevant and crucial and the other 400 marks would be rendered totally, superfluous and of no effect at all. The language used is rather plain and is not capable of the interpretation as is being presented before us during the course of hearing and as has been held by the High Court. Reliance on 50 marks only and thereby avoiding the other 400 marks cannot in our view having due regard to the language used, be said to be reasonable or devoid of any arbitrariness.
(3.) LEARNED senior counsel for the respondents, on the other hand, has opposed the petition and has submitted that in the present case, the written test was merely an eligibility test. Therefore, the marks obtained by the candidates in the written test were not liable to be taken in consideration while preparing the selection list. In fact, all the candidates, who had obtained 20 marks out of 60 marks, were to be considered eligible for the interview. So far as the criteria for selection is concerned, only 15 marks were kept for interview out of total 65 marks. The remaining 50 marks were allotted to qualification and certificates in sports and NCC/NSS. Five marks were granted to the candidates belonging to the rural areas. Learned senior counsel has further submitted that petitioners had failed to challenge the selection criteria and had duly participated in the selection process. Therefore, at this stage, petitioners were estopped from challenging the selection list. In support of his arguments, learned senior counsel has placed reliance on 'Raj Vardhan versus Union of India through Joint Secretary of the Govt. of India, Ministry of Finance, Department of Economics Affairs (Banking Division), New Delhi and others,, 2011(84) ALR 63 wherein it was held as under: - This special appeal can be dismissed on a short point that petitioners have acquiesced to the selections. They appeared in the selections with full knowledge and understanding of the selection process and the change in policy for a minimum qualifying marks of 50 out of 100 in the selections and have not challenged the guidelines in the circular/policy letter dated 28.2.2001. We may, however, observe that even on merits the change of policy to provide overall minimum qualifying marks of 50 out of 100 keeping in view of the onerous responsibility of the highest post of an officer and keeping in view of the minimum necessary merit requisite for efficiency of administration, did not violate the criteria of seniority -cum -merit as the abiding criteria prescribed in para -4 of the guideline of the policy/circular dated 28.2.2001. The policy was in consonance with the decision of the Supreme Court in Bhagwan Dass Tiwari's case (supra) in which it is held in paragraphs 17 to 20 as follows: - 17. These aspects were highlighted in K. Samantaray v. National Insurance Co. Ltd. ( : AIR 2003 SC 4422), and in State of U.P. v. Jalal Uddin and others : 2005(1) SCC 169. 2003 AIR SCW 2063. 18. There is no basis, in the instant case, for the stand that for assessing merit a minimum number of marks has been prescribed. The contention that minimum marks were 45 out of 60, means that an employee is to secure 75% of marks. Such a high percentage can not be a measure of prescribing minimum marks to assess merit. It obviously would be a case of shifting the focus to merit -cum -seniority. In para 37 of Sivaiah case (supra), this Court noted that minimum marks prescribed for assessing merit do not depart from the seniority -cum -merit principle. But the factual position is different here. There is no mention that 45 marks out of 60 relate to the prescription of minimum marks for assessing the merit. In Jalal Uddin's case (supra) it was noted that in seniority -cum -merit greater emphasis is on seniority though it is not the determinative factor. In the case of merit -cum -seniority, merit becomes a determinative factor. In fact, the position noted by this Court in paragraphs 19, 20, 24 and 25 of Sivaiah case (supra) dealt with almost identical fact situation, apart from paragraph 16 of the judgment. 19. Appellants have no grievance so far as respondents 2, 3 and 4 are concerned as their date of joining is earlier and they have secured higher marks. The appeal stands dismissed, so far as they are concerned. 20. The appeal is bound to succeed to the extent indicated. The respondent no. 1 shall issue fresh orders for promotion in line with the judgment after working out the necessary details. There will be no order as to costs. In B.V. Sivaiah and others v. K. Addanki Babu and others : (1998) 6 SCC 720 it was held that when the criteria for promotion is seniority -cum, -merit, seniority alone is not to be considered; the merit cannot be ignored. The prescription of 45 marks as minimum out of 60 which is 75% of the marks were not found in Bhagwan Das Tiwari's case to be the determinative factor. The prescription of overall and at least 50% marks in the selection for assessing merit, cannot be treated to be so excessive, that the selections can be treated to be converted to selections based on merit alone. The bank employees holding clerical posts, on their promotions to Officers posts have to shoulder greater responsibility. The prescription by the bank of at least overall 50% marks in the written test and interview and which also included the assessment of the performance appraisal report carrying 10 marks out of 100 based on service records, cannot be treated to change of criteria to merit as a dominant factor. The candidates were required to secure overall minimum qualifying marks of 50 out of 100. They were required to secure 35 marks in the written test (English) in Part -A; 35 marks in written test in Part -B (banking law practice and procedure including working procedure in the bank), and 20 marks in interview. The bank policy, to allow only those who have requisite minimum necessary merit and efficiency of administration by scoring 50% marks in the written test and interview, is not an unreasonable precondition. It is essential for the job profile. The selection thereafter is governed by the seniority. It is not always necessary to associate merit with unfitness. If an objective criteria is fixed to find out suitability, or fitness for the purposes of judging the minimum merit, the bank could have prescribed the test, with a reasonable overall qualifying marks, to judge the suitability. The seniority, thereafter is the governing criteria for selections.;