Imposition of additional cut off marks after the commencement of the selection process is impermissible.

Sudershan Kumar Misra, J.

1. The Petitioner is aggrieved of the non-consideration of her case for recruitment to the post of Assistant Teacher (Primary) in Directorate of Education, Govt. of NCT of Delhi, pursuant to an advertisement stated to have been issued by the Respondent on 27th July, 2006.

2. By that advertisement, the Delhi Subordinate Services Selection Board, had invited applications for appointment to the post of Assistant Teacher (Primary) in the Directorate of Education, Govt. of NCT of Delhi. It was stated that there are 1254 vacancies, out of which 563 were under the reserved category. The Petitioner is admittedly a general category candidate. It is the Petitioner's case that she fulfilled all the essential criteria for the appointment. The selection consisted of a two part examination. The first part, or Part I was of an, "objective", nature, while Part II was, "descriptive". Those candidates who qualified in the objective type examination, i.e. the Part I examination, were permitted to participate in the Part II examination.

3. The Petitioner participated in both Parts I and II examinations. Both the examinations consisted of 200 marks each. The Part I examination was held on 25th March, 2007 whereas the Part II examination was held on 6th May, 2007. The Petitioner obtained 89.50 marks out of 200 in the Part I examination and 75 marks out of 200 in the part II examination. Consequently, out of 400 marks in all, she obtained 164.50 marks. The overall percentage of the marks obtained by the Petitioner in the two examinations, taken together, comes to 41%.

4. Admittedly, the Petitioner's rank is 411 in the general/unreserved category. As per the advertisement, the unreserved vacancies were 563. The Petitioner contends that, under these circumstances, she ought to have been offered an appointment because nothing more was required to be done in the matter.

5. It is the case of the Respondents that in terms of a policy dated 31st March, 2007 of the Subordinate Services Selection Board i.e. Respondent No. 1, the candidates are also required to obtain certain minimum marks both in the Part I examination, and again in the overall percentage of marks in both Part I and Part II examinations. According to the Respondent, the minimum marks fixed for the Part I examination for the Petitioner was 40%. In addition, a minimum overall percentage of 45% was also required after adding the marks of Part I and Part II. It is stated that although the Petitioner was above the cut off for the Part I examination, however, she did not make the cut off of 45% prescribed for the overall aggregate.

6. It is the case of the Petitioner that this provision, fixing cut off marks, was not mentioned in the advertisement inviting applications for recruitment. More importantly, it is also contended that in any case, the aforesaid criteria for cut off marks was admittedly set down only on 30th March, 2007 by Respondent No. 1, i.e. after the Part I examination had already been held earlier on 25th March, 2007. In short, the case of the Petitioner is that once the recruitment process has started and the examination itself has been conducted, it is not open to the Respondents to thereafter prescribe any additional criteria with regard to the recruitment.

7. In this context, counsel for the Petitioner relies on a decision of the Supreme Court in Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 (paras 14 to 16). There also, at the beginning of the selection process, no minimum cut off marks for viva voce were prescribed. They were prescribed after the entire selection process was completed. In that case, the Supreme Court was of the view that this would amount to changing the rules of the game after the game has been played. In an earlier decision of the Supreme Court in K. Manjusree v. State of A.P. (2008) 3 SCC 512, also it was clarified that although the prescription of minimum marks is not illegal, and it is open to the authorities to prescr