1. Petitioners seek appointment to the posts of Manager (Electronics) with the respondent/Airport Authority of India. Petitioners seek appointment on the ground that respondent has not filled all the sanctioned posts which were advertised for being filled in. In the subject recruitment process in which the petitioners participated, only 75 posts have been filled instead of 112 posts which were advertised. What the petitioners plead is that the action of the respondent in filling less posts is illegal and arbitrary as the respondent did not fix the eligibility criteria passing marks for the candidates before the recruitment process commenced, and the passing marks were decided only after written test and interviews were concluded. It is contended that no doubt it is not mandatory for an employer such as the respondent to fill in all posts which are advertised, however, what is emphasized is that in a case such as the present where passing marks are not fixed till written test and interviews are conducted, the same will and has led to arbitrary action that management of the respondent has decided as per its convenience as to what should be the passing marks. This procedure is alleged by the petitioners that the same has been used to adopt a policy of pick and choose, because at the convenience of the respondent by fixing of the particular passing marks after conducting the written test and interview certain candidates can and have been included and certain candidates can be and have been excluded in an arbitrary manner. Petitioners therefore contend that in circumstances such as in the present case ordinarily all the advertised vacant seats/posts must be filled in otherwise there would be imprimatur to the arbitrariness and pick and choose action of the respondent.

2. The facts of the case are that the respondent by the advertisement issued in about May/June 2010 (numbered 1/2010) invited applications for various posts, including for the subject posts of Manager (Electronics). There were 112 posts advertised of Manager (Electronics). Of the 112 posts, 56 were in General Category, 30 in OBC Category, 17 in SC Category and 9 in ST Category. Four posts were reserved out of the 112 posts for physically challenged persons with orthopedic disability. Last date of receipt of the application was 16.10.2010. Written examination was conducted on 31.10.2010 and interviews thereafter were conducted in June and July 2011. Results were declared in July 2011. Respondent selected only 75 candidates out of 112 posts advertised for Manager (Electronics). Out of 75 selected persons, 47 fell in General Category, 19 in the OBC (including 1 physically handicapped) and 9 in SC Category. No posts were filled in the ST Category.

3. Respondent claims that there is no obligation to fill in all the advertised posts and states that it is always open to an employer to decide as per administrative convenience or administrative realities less posts than the posts which were advertised. Reliance in this regard is placed upon the judgment of the Supreme Court in the case of Shankarsan Dash Vs. Union of India (1991) 3 SCC 47 and other similar judgments which lay down the same ratio.

4. The issue before this Court is that can an instrumentality of State such as the respondent at all have a selection/appointment process without prefixing the eligibility criteria of passing marks, and which position continues well after conducting of the written exam and even after conducting of the interviews, and, the passing marks are fixed only thereafter when merit list is prepared or around/just before that stage. Putting it differently can passing marks of a selection process be fixed after completion of the written test and holding of the interview. It may be clarified that when we refer to fixing of marks, we are referring to fixing of marks of two types and at two stages. The two types of marks are : first of the written test and second of the interview. The two st