Prescription of a new criteria after the selection process had commenced was impermissible, and the appellant-Institute should take a considered decision whether the unfilled posts should be filled up or not, bearing in mind that prescription of minimum cut-off marks in the written examination, post commencement of the selection process, is illegal.

Ramesh Ranganathan, J.

1. These three appeals are preferred by the All India Institute of Medical Sciences, Rishikesh (‘AIIMS’ for short) against the order passed by the learned Single Judge in Writ Petition (S/S) No. 1916 of 2018 and batch dated 28.03.2019.

2. The AIIMS (the appellant-second respondent) issued an advertisement on 22.07.2017 inviting applications for various posts, including 125 posts of Staff Nurse (Grade–I). In terms of the advertisement, all posts were to be filled up based on the performance of the candidates in the written examination. The advertisement, however, stipulated no minimum cut-off marks for qualifying in the written examination. The respondents-writ petitioners submitted their applications in terms of the said advertisement, and appeared in the written examination held on 18.05.2018. The final results were declared on 31.05.2018, and the notification issued thereafter disclosed, for the first time, that cut-off marks had been fixed, and anyone who had scored less than the cut-off marks was not eligible to be appointed as a Staff Nurse. The appellant-Institute appointed only 99 candidates against the advertised 125 posts of Staff Nurses (Grade-I), and the remaining 26 posts were not filled up on the ground that none of the other candidates had secured the prescribed minimum cutoff marks.

3. The respondents-writ petitioners invoked the jurisdiction of this Court contending that the rules of the game could not be changed midway; prescription of a criteria after the selection process had commenced, and which had not been disclosed in the advertisement, is impermissible; it is not as if they had failed in the written examination; while one of them, in the general category, secured more than 59% marks (just below the cut-off marks of 60% prescribed for general category candidates), the other two writ petitioners, who belonged to the OBC category, secured more than 54% marks (just below the cut-off marks of 55% prescribed for the OBC category candidates); and a direction should be issued to the respondents to fill up all the 125 advertised posts without insisting on fulfillment of the minimum cut-off marks prescribed after the advertisement was issued.

4. In his order, in Writ Petition (S/S) No. 1916 of 2018 and batch dated 28.03.2019, the learned Single Judge, after relying on the judgments of the Supreme Court in K. Manjushree vs. State of Andhra Pradesh and another : (2009) 3 SCC 512 and Hemani Malhotra vs. High Court of Delhi : (2008) 7 SCC 11, held that, in the present case, the requirement of minimum cut-off marks was introduced after commencement of the selection process; the candidates had no knowledge of any such requirement; they were taken by surprise when it was mentioned, in the final result, that those who secured less than cut-off marks had been declared unsuccessful; and this led to the only logical inference that the rules of the game were changed after the game had commenced. The writ petitions were allowed, and the appellant herein was directed to declare the result in respect of all 125 posts of Staff Nurses (Grade-I), ignoring the requirement of cut-off marks, within two weeks from the date of the order; and consequential orders were directed to be issued within two weeks thereafter.

5. Mr. Rakesh Thapliyal, learned Assistant Solicitor General appearing on behalf of the appellant-Institute, would submit that the learned Single Judge had erred in interfering with the selection process based on the judgments of the Supreme Court in K. Manjusree Vs. State of Andhra Pradesh and another, (2009) 3 SCC 512 and Hemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11; in both these judgments the Supreme Court had interdicted prescription of a minimum cut-off marks for interview without stipulating such a criteria in the Rules prior to issuance of an advertisement; unlike in the said judgments, in the present case the process of selection is only by way of a written examination, and