2021 INSC 0631 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 6217 of 2021 (Arising out of SLP(C) No. 15458 of 2017) Sri Srinivas K Gouda …Appellant VERSUS Karnataka Institute of Medical Sciences & Ors. …Respondents J U D G M E N T Dr Dhananjaya Y Chandrachud, J 1 By a judgment dated 31 March 2017 1, a Division Bench of the High Court of Karnataka, at D harwad allowed an appeal filed against the judgment of the Single Judge 2. The Division Be nch quashed the selection of the appellant to the post of ‘Junior Lab Technician’ in the first respondent and directed it to consider the case of the third respondent for ap pointment to the post. The appellant moved this Court in Special Leave Petition to challenge the decision of the Division Bench. Leave was granted on 1 October 2021. 1 WA No. 10580/2015 2 WP No. 63973/2009 10 is filed seeking to question the appointment of respondent no.3 and rejection of his application.” It was in the writ appeal that the third respondent challenged the selection criteria of allotting marks for experience and the interview. It was argued before the Division B ench that the advertisement had only mentioned the requirement of a minimum educational qualification and that since it did not stipulate a requirement of experience, the selection based on marks provided for experience was arbitrary since the rules of the game were changed after the selection process had commenced. 14 The selection list for the post of ‘ Junior Lab Technician’ was challenged before the High Court in another proceeding - Nagaraj (supra) - but the writ petition was dismissed by the Single Judge. In Nagaraj , the casual labourers working in the first respondent challenged the selection list for the post of ‘ Junior L ab Technician’ on the ground that they ought to have been regularised and appointed to the post. It was also contended that the selection process adopted by the first respondent was not transparent. The Single Judge rejected the submission and held that the Se lection Committee had selected candidates to the post in accord ance with the Bye laws and the guidelines devised by the Selection C ommittee. The High Court held : “8. After careful perusal of the stand taken by the respondents specifically with reference t o Annexure R1, authorities have followed the procedure and mode of selection as per terms and conditions notified in By - laws of the first respondent. Selection Committee consists of experts in the relevant field having rich knowledge are well acquainted wi th the procedures for selection category wise. Taking into consideration the marks secured by the candidate in the examination, performance, experience certificate, certificate issued by the concerned authorised officer regarding their 11 experience, practical knowledge of work in the lab, all the candidates herein are selected on merit basis having regard to their better marks, better experience. […] Taking into consideration all these relevant aspects and due to efflux of time, the prayer sought by the petit ioners, may not survive for consideration and interference by this Court is not called for, nor I find any good ground to interfere in these writ petitions. Hence, all these petitions are dismissed as being devoid of merits.” (emphasis supplied) Since the order of the Single Judge in Nagaraj has not been appealed, it has attained finality and thus the marks allotted to candidates in other categories cannot be scrutinised to cast doubt on the selection in Category 1. 15 Before proceeding to refer to the marks allotted to the third respondent and the appellant by the Selection Committee for experience and at the interview, we find it necessary to refer to the c riteria for allocation of marks devised by the Selection Committee. The M inutes of the Meeting of the Selection Committee held on 20 August 2008 state that the committee resolved to give proportionate weightage to the length of the service, with special preference to those candidates who have worked in government medical coll eges. For the sel ection to the post of a ‘Junior Lab Technician’, the marks obtained in the qualifying examination w ere assigned a weightage of eighty -five percent. T en marks were allotted to experience. F ive marks were allotted for the personality of the candidate, as adj udged in the interview . The Selection Committee laid down two yardsticks for provision of marks for experience: ( a) length of work experience of the candidate; and ( b) preference would be given to those who had worked in teaching hospitals of government / autonomous medical colleges. The rationale of the Selection Committee on differentiating between work experience in a 12 private and government institute was that those who had worked in a government institute would be more suitable for the post due to the similarity of working conditions owing to the fact that the first respondent is a government medical institut ion. 16 It is in this background that we need to determine whether the marks allotted to the appellant in the category of experience and personality are arbitrary. The appellant at the time of submitting the application had a one year work experience in Babuji Medical College, Devanagere (a private institution) and three years of w ork experience with the first respondent . On the other hand, the respondent at the time of the application, had six months’ experience of working under a doctor who was undertaking private practice. Not only did the appellant have more years of work experience, he had work experience in a governmental institution . Hence, the marks awarded to the third respondent and the appellant bore a nexus to the yardstick determined by the Selection Committee. It is not the case of the third respondent that the appellant was given more marks for experience despite having less work experience. On a comparison of the marks allotted to both the candidates with reference to the yardstick determined by the Selection Committee, no mala fides could be imputed to the Selection Committee . No r is there an obvious or glaring error or perversity. The Court does not sit in appeal over the decision of the Selection Committee. 17 During the course of his submissions , counsel for the third respondent referred to the judgments of this Court in K Manjusree v. State of Andhra 13 Pradesh 4 and Bishnu Biswas v. Union of India 5. In K Manjusree, in issue was the selection of candidates to ten posts of District and Sessions Judge (Grade II) in the Andhra Pradesh State Higher Judicial Service. The first mer it list was prepared by cumulating the marks obtained in the written examination out of hundred and the interview marks out of twenty five. However, when the merit list was placed before the committee, the list was sent back for reconsideration on the ground that the marks for the written test were to be converted to eighty five. Further, the committee also introduced a minimum mark qualification for the interview. Therefore, the ratio of written (examination) and oral (interview) marks was changed from 4:1 to 3:1 and an additional requirement of minimum marks for the interview was introduced. This was cha llenged by candidates who were in the first merit list but were left out in the second merit list. The change in the ratio of marks from 4:1 to 3:1 was upheld by this Court on the ground that the resolution of the committee was misinterpreted while publishing the first merit list based on the 4:1 ratio. However, the C ourt held that the prescription of minimum marks for interview was illegal since such an additional requirement was prescribed after the commencement of the selection process. In this regard, Justice Raveendran writing for a three judge Bench observed: “ 33. […] We have no doubt that the authority making rules regulating the selection, can prescr ibe by rules, the minimum marks both for the written examination and interviews, or prescribe minimum marks for written exam but not for the interview[…]. But if the Selection Committee wants to prescribe minimum marks, it should do so before the commencem ent of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection 4 (2008) 3 SCC 512 5 (2014) 5 SCC 774 14 process or after the selection process, add an additional requirement.[…].” 18 In Bishnu Biswas (supra), the rules had provided that candidates for eight Group D posts would be selected based on the written exam of fifty marks. However, after the written exam was held, a press notice was issued calling successf ul candidates for an interview for which fifty marks w ere allotted. Referring to various judgments of this Court including Manjusree (supra), the selection list was quashed on the ground that the rules of the g ame (by including the interview component ) had changed after the selection process was initiated. 19 As we have noted earlier, t he respondent had not challenged the selection list or the inclusion of the experience and the interview component for the determination of the merit list in the Writ P etition but had only sought his appointment within the criteria prescribed. Hence, the reliance placed by the respondent on Bishnu Biswas and Manjusree would not aid the case of the third respondent . 20 The D ivision Bench of the High Court set aside the appointment of the appellant on two grounds. First, the marks provided for candidates at the interview and for experience category w ere held to be arbitrary. To arrive at this conclusion, the Division Bench referred to the entire select list and found alleged discrepancies in the allotment of the marks for experience and a pattern where all the selected candidates were given higher marks for experience and at the interview . Second, the Division Bench held that the advertisem ent issued by the f irst respondent did not mention the criteri on of work experience but only provided 15 the minimum educational qualifications. Thus, it held that the rules of the game were changed after the process had started. The appointment of the appellant was set aside by the Division Bench by finding that the additional selection criteria devised and the marks provided in those criteria were arbitrary. As observed earlier, the selection list was not challenged by the respondent. His only ground for challenge was that he had to be selected since he was ‘more meritorious’ as he had better qualifying marks. Therefore, determining the legality of the selection list and perusing the entire selection list to determine whether the selection of the appellant was arbitrary was erroneous as the Division Bench transgressed the limits of challenge in the writ petition. 21 For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court of Karnataka dated 31 March 2017. 22 Pending application(s), if any, stand disposed of. ……………..…………………………J [Dr Dhananjaya Y Chandrachud] …..………….…………………………J [BV Nagarathna] New Delhi; October 08, 2021