IMPORTANT POINT
Eligibility criteria as also the procedures as well prevailing on the date of vacancy should ordinarily be followed.

Headnote:SERVICE LAW — Appointment for posts of Watchman/Messenger/Attender — 12 posts fell vacant in Govt. owned company — There were no statutory rules to govern recruitment to said post — Applications were invited from workmen already working in company and 253 persons applied — Written test was conducted for eliminating those who failed to secure minimum qualifying marks — 36 candidates who got highest marks were called for interview and appellant was one of them — Minimum qualifying marks were reduced and 11 more persons were permitted to appear for interview — Appellant had stood first in written examination but he was not selected — Writ — High Court dismissed it and Division Bench dismissed the appeal — Appeal — Why the company enlarged zone of consideration from 1:3 to 1:4 that too after publication of result of written examination was not explained — A decision of State could be changed but good and sufficient reasons must be assigned therefor — Eligibility criteria and procedure prevailing on date of vacancy should ordinarily be followed — Allocation of marks for interview was misused and ratio in Ashok Kumar Yadav case that marks allocated for viva voce should not normally exceed 12.5% was contravened — Selection of respondent Nos. 4 and 5 was liable to be set aside — Company directed to appoint the appellant.
       Held : Selection of the candidates was to be made from amongst the workers who had been working in the Company for a long time. Although there may not have been any statutory rules governing recruitment to the posts in question, evidently a practice therefor was prevailing. Rule of the game for the said purpose was fixed, namely, 36 persons would be called for interview from amongst those who were successfully competed the written examination. The fact that the appellant obtained more than 73% marks in the written examination and topped the list is not in dispute. The fact that he was eligible for consideration for appointment in the post is also not in dispute. It has furthermore not been in dispute that the minimum qualifying marks in the written test was fixed. It is, however, not known whether the same was 50% or not, but then it was admittedly higher than 46%. (Para 8)
       Why such a decision had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the Company intended to enlarge the zone of consideration from 1 : 3 to 1 : 4 has also not been disclosed. Why the cut-off mark was also lowered remained a mystery. (Para 9)
       It may be that in a given situation, a decision of the State may be changed, but therefor good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant. (Para 10)
       It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed. (Para 11)
       The question as to how much marks should be allocated for interview would depend upon the post and nature of duties to be performed. The nature of duties to be performed on the post of Watchman/Messenger/Attender is not such which requires a high intellectual ability or any particular trait of the candidates which is required to be judged by an expert. (Para 14)
       In this case allocation of marks for interview was in fact misused. It not only contravened the ratio laid down by this Court in Ashok Kumar Yadav (supra) and subsequent cases, but in the facts and circumstances of the case, it is reasonable to draw an inference of favouritism. The power in this case has been used by the Appointing Authority for unauthorized purpose. When a power is exercised for an unauthorized purpose, the same would amount to malice in law. (Para 16)
       For the reasons aforementioned, the impugned judgments cannot be sustained, which are set aside accordingly. Selection of Respondent Nos. 4 and 5 is set aside. The company is directed to appoint the appellant. The appeal is allowed with cost. (Para 17)

JUDGMENT

S.B. Sinha, J. — Leave granted.

2. Oil Palm India Limited is a Government Company (for short, ‘the Company). The Union of India and the State of Kerala are its shareholders. It is indisputably a ‘State’ within the meaning of Article 12 of the Constitution of India. Appellant herein was appointed as a worker in the services of the Company in the year 1982. 12 posts of Watchman/Messenger/Attender fell vacant. Recruitment to the said post is not governed by any statutory rules. Admittedly, all the workmen who were in service of the Company were to be considered therefor. Applications having been invited for filling up of the said 12 posts, 253 persons applied therefor. A written test was conducted on 18.01.2001. Appellant herein stood first in the written examination. The said written examination was conducted by the Kerala State Productivity Council in terms of the resolution of the Board of Directors of the Company dated 13.06.2000. It is not in dispute that the written test was conducted for eliminating those who had failed to secure the minimum qualifying marks in the written test. It has also not been disputed that out of 253 applicants, only 197 appeared therein. However, keeping in view the total number of posts which were required to be filled up, only 36 candidates who got the highest marks were called for interview, appellant being one of them. It is furthermore not in dispute that after a policy decision was taken to call only those candidates who had come within the zone of three times of the number of posts, the minimum qualification was reduced to 46 marks and 11 more persons were permitted to appear at the interview. It has furthermore not been disputed that 100 marks were fixed both for written test as well as viva-voce.

3. Appellant, having not been selected, filed a writ petition, on the premise that Respondent Nos. 4 and 5 were appointed by the company, although not eligible therefor. It had categorically been stated that they were called for interview only one day prior to the holding thereof. It was alleged that the top officers of the Company personally went to the houses of Respondent Nos. 4 and 5 and handed over the appointment orders on 22.05.2001, which was a Sunday. It was also contended that the list of the selected candidates had not been published.

4. The Writ Petition of the appellant was dismissed by a learned Single Judge of the High Court by a judgment and order dated 22.12.2005, holding :

“....From the counter affidavit and also from the lists furnished by the petitioners themselves it is clear that of the 11 included in the additional list only two were appointed and they are serial Nos. 6 and 8 in the additional list. It is also stated in the counter affidavit that 50% marks were given to the written test and 50% marks for the interview. That will not vitiate the selection as held by the Supreme Court in Subash Chandra Verma v. State of Bihar 1995 Supp. (12) SCC 325. Selection is a matter of policy and if the Selection Committee thought it fit to have the ratio of 1:4 for the purpose of selection, it cannot be said that the selection is vitiated on that only ground. It is now settled law that it is for the party who alleges vitiating factors like favouritism, malafides etc. to plead and prove the same...”

5. A Writ Appeal preferred thereagainst by the appellant was also dismissed by a Division Bench of the High Court, opining :

“7. We find hardly any substance in the arguments as above. Interview was a mandatory step to be followed. In the matter of selection to the post of Watchman, we feel it is more appropriate to set apart 50% marks for the interview. Physical fitness and personality are essential requirements for a watchman; Resourcefulness, aptitude and initiative are qualities essential for a Messenger and Attender, apart from the bookish knowledge. The above qualities are best assessable by an interview.”

6. Dr. K.P. Kylasanatha Pillay, the learned counsel

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2007 Supreme(SC) 239

IMPORTANT POINTEligibility criteria as also the procedures as well prevailing on the date of vacancy should ordinarily be followed.

Cases Referred (10)

IMPORTANT POINT
Eligibility criteria as also the procedures as well prevailing on the date of vacancy should ordinarily be followed.