IMPORTANT POINT
The judgment established that the distinction for according pay protection based on the manner of recruitment was arbitrary and unfair, and the Office Memorandum removing the distinction was acknowledged.

JUDGMENT

V. Kameswar Rao, J. (Oral)

CM APPL. 49184/2023

1. Exemption allowed, subject to all just exceptions.

2. Application stands disposed of.

W.P.(C) 12475/2023 & CM APPL. 49183/2023

3. This writ petition has been filed by the petitioner/UOI challenging the order dated January 27, 2021 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (`Tribunal', for short) in O.A. No.769/2020 whereby the Tribunal has allowed the OA filed by the respondents herein by stating in paragraph Nos.9 to 13 as under:

"9. We have thoroughly verified the advertisement as well as the relevant Recruitment Rules. There is no stipulation that a written test would be conducted as part of the selection process. For example, in case of Civil Services Examination, the written tests are held at two stages, namely, the preliminary and main. There is no stipulation of that nature for the post of Assistant Director (Cost). The test, which was held in respect of the applicant, was part of the short listing criteria. It is fairly well known that the UPSC reserves to itself, the right to take recourse to short listing criteria. This may include the one of taking into account, the higher qualifications or experience or conducting a written test. All this is only for the purpose of short listing.

10. For example, if the available posts are 5 and about 300 applications are received from candidates, who hold the prescribed qualifications. When no written test is prescribed for selection, it would be difficult for the selecting agency to interview all the eligible candidates. In such cases, the recourse can be taken to any of the short listing criteria. For instance, if the prescribed qualification is Post Graduation in a particular discipline, the possession of Ph.D can be taken into consideration. Similarly, if the prescribed experience is 3 years, the length of experience can be enhanced to 5 or 8 years. Another method is to conduct the test, for the exclusive purpose of short listing the candidates and not for assessing their merit in relation to the post in question. Time and again, the Courts have conceded this facility to the UPSC whenever the measures were challenged as constituting alteration of the qualifications or the selection process.

11. Once the online test was conducted only for the purpose of short listing the candidates and the marks obtained therein did not constitute the basis for assessing the relative merit, it cannot be said that the selection of the applicants was on the basis of a written test. A subtle distinction needs to be maintained between two situations. The first is where a written test is conducted as part of selection process. If it is followed by interview, the merit of the candidates is decided on the basis of the aggregate of marks secured in the written test and interview. The second situation is where the written test is conducted as a measure of short listing criteria. In such cases, once the performance of the candidates is taken as the basis for short listing, the relevance of the examination, and equally, the marks secured therein, disappears. Those, who are shortlisted, would be subjected to interview. The marks, which were secured by them in the examination conducted for short listing, do not figure anywhere in the final selection process. In the instant case, the second process was adopted.

12. Another aspect is that if the written test is conducted as part of selection process, it is conducted irrespective of the number of applications, that are received. Conversely, in a given recruitment year, if the number of applications is almost proportionate to the number of vacancies, the necessity to conduct any written test for the purpose of short listing, may not arise. As observed earlier, no written test is prescribed as part of selection process for the post of Assistant Director (Cost). It was incidental that online test was conducted in the year 2014, exclusively for the purpose of short listing.

13. We fin