Jayakrishnan R. v. Indian Institute of Management Kozhikode & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 15TH DAY OF JUNE 2016/25TH JYAISHTA, 1938** ## **WP(C).No. 10854 of 2013 (F)** ## **----------------------------** ## **PETITIONER :** **-----------------------** **JAYAKRISHNAN.R., S/O. P. RAMAN MOOSAD, 'SHYAM, VIKAS NAGAR, KODAMOLIKKUNNU ROAD, P.O.NELLIKODE, KOZHIKODE-673 016.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S):** - **-----------------------------** **1. INDIAN INSTITUTE OF MANAGEMENT KOZHIKODE, REPRESENTED BY DIRECTOR, INDIAN INSTITUTE OF MANAGEMENT KOZHIKODE, IIM KOZHIKODE CAMPUS.P.O., KOZHIKODE-673 570.** **2. CHIEF ADMINISTRATIVE OFFICER, INDIAN INSTITUTE OF MANAGEMENT KOZHIKODE,** **IIM KOZHIKODE CAMPUS.P.O., KOZHIKODE-673 570.** **3. SENIOR ADMINISTRATIVE OFFICER (GA), INDIAN INSTITUTE OF MANAGEMENT KOZHIKODE,** **IIM KOZHIKODE CAMPUS.P.O., KOZHIKODE-673 570.** **4. SELECTION COMMITTEE FOR THE POST OF ACCOUNTANT IN INDIAN INSTITUTE OF MANAGEMENT KOZHIKODE, REPRESENTED BY THE CHAIRMAN,** **INDIAN INSTITUTE OF MANAGEMENT KOZHIKODE, IIM KOZHIKODE CAMPUS.P.O., KOZHIKODE-673 570.** **5. BOARD OF GOVERNORS, INDIAN INSTITUTE OF MANAGEMENT KOZHIKODE,** **REPRESENTED BY THE CHAIRMAN, INDIAN INSTITUTE OF MANAGEMENT KOZHIKODE, IIM KOZHIKODE CAMPUS.P.O., KOZHIKODE-673 570.** **2/-** **-2-** **WP(C).NO.10854/2013** ## **6. UNION OF INDIA,** **REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HUMAN RESOURCES, NEW DELHI.** **R1 TO R5 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI R6 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 10854 of 2013 (F)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------------------------** - **EXT.P1 TRUE COPY OF THE NOTIFICATION DATED 10-10-2012 ISSUED BY THE 1ST RESPONDENT.** **EXT.P2 TRUE COPY OF THE NOTICE DATED 7-12-2012 ISSUED BY THE 3RD RESPONDENT.** **EXT.P3 TRUE COPY OF THE CONSOLIDATED EVALUATION SHEET OF CANDIDATES.** **EXT.P4 TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE HELD ON 4-1-2013 FOR SECTION TO THE POST OF ACCOUNTANT. EXT.P5 TRUE COPY OF THE ADVERTISEMENT NO.R-01/2013 DATED 11/4/2013.** ## **RESPONDENT(S)' EXHIBITS** **------------------------------------------** **EXT.R1(A) COPY OF THE SELECTION NOTIFICATION BEARING ADVERTISEMENT NO.R-03/2012 DATED 5/10/2012** **EXT.R1(B) COPY OF THE MINUTES OF THE SELECTION COMMITTEE MEETING HELD ON 5/10/2012 FOR SELECTION TO THE POST OF ACCOUNTANT VIDE ADVERTISEMENT NO.R-02/2012 DATED 28/5/2012** **ET.R1(C) COPY OF THE MINUTES OF THE SELECTION COMMITTEE MEETING HELD ON 4/1/2013 FOR SELECTION TO THE POST OF ACCOUNTANT VIDE ADVERTISEMENT NO.R-03/2012 DATED 5/10/2012** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **P.V.ASHA, J.** ----------------------------------------------------- ## W.P(C) No.10854 of 2013-F ---------------------------------------------------Dated this the 15[th] day of June, 2016 ## **JUDGMENT** The petitioner who secured 71 marks out of a total of 125 in the examination for selection for appointment as Accountant in the Indian Institute of Management, challenges the fixation of cut off marks at 81.25 at a stage when the evaluation of all the candidates in the written test and interview was over, as a result of which the petitioner is not given appointment, though he secured the highest marks. 2. The Indian Institute of Management invited applications for appointment against 2 vacancies of Accountant, as per Ext.P1 notification dated 10.10.2012. After shortlisting based on screening, 7 candidates including the petitioner were iinvited for the written test and interview held on 4.1.2013, as per Ext.P2 notice dated 7.12.2012. 100 marks were allotted for the written test, and 25 marks for interview. Ext.P3 consolidated evaluation sheet of candidates shows that the petitioner is the candidate who scored the highest marks of 71, ie. 61 out of 100 W.P(C) No.10854 of 2013-F 2 and 10 out of 25 in the interview. From Ext.P4 it can be seen that, the selection committee for the post of Accountant after evaluation of the candidates fixed 65%, ie. 81.25, as cut off marks for qualifying in the written test and interview together. As none of the 6 candidates who appeared for written test and interview scored 81.25 marks, the committee did not find any of them suitable. 3. The petitioner submits that the prescription of cut off marks, after subjecting the candidates to the process of selection including written test as well as interview, is arbitrary. The arbitrariness in exercising the power of selection has resulted in denial of employment to a candidate who came out as the most meritorious, which, according to the petitioner, cannot be permitted. In effect the contention is that, the committee changed the rules of the game after the game was over and the results of the game came out. The stage at which the committee fixed the cut off date will go to show that it is only to eliminate the succesful candidates from the zone of consideration without any previous intimation regarding such fixation at such a stage. 4. The respondents have filed a counter affidavit stating that, even at the time of inviting applications the candidates W.P(C) No.10854 of 2013-F 3 were directed to watch the website of IIM, as can be seen from Ext.P1 notification itself. The respondents have produced Ext.R1 (a) advertisement inviting applications for the post of Accountant as well as for other posts. Towards the end of this notification the general instructions to the candidates are given. Clauses 10 and 11 read as follows: “10. Mere fulfilling of the minimum qualifications and experience prescribed will not make a candidate eligible to be called for Test/Interview. Short listed candidates alone will be called for Test/Interview. 11. Candidates, who secure minimum cut-off marks to be fixed by the selection committee alone, will be considered suitable for the posts.” Therefore, according to the respondents, there was no illegality in fixing the cut off marks and they were very well within their powers to fix the cut off marks and to take a decision not to select any candidate when it was found that none of them secured the requisite marks they fixed and the petitioner does not have any right to challenge the same in order to claim appointment, when he did not choose to challenge the notification before he subjected himself to the process of selection. 5. Heard Sri Kaleeswaram Raj, the learned counsel 4 W.P(C) No.10854 of 2013-F appearing for the petitioner and Sri P.Gopinath, the learned counsel appearing for the respondents. 6. Sri Kaleeswaram Raj argued that it is settled law that the minimum marks for selection or inclusion in the ranked list for appointment cannot be fixed midway, in the light of the judgment in **K.Manjusree Vs . State of Andhra Pradesh** [(2008)3 SCC 512] and a series of judgments thereafter. Even though the judgment in **Manjusree** 's case (supra) has already been referred to larger bench in **Thej Prakash Pathak V Rajasthan High Court** [2013(2) KLT 83(SC)], it is argued that, the situation arising in this case is different inasmuch as in this case there is a total elimination; whereas in the cases referred above there was only a short listing of candidates based on the changes effected in the rules of the game. The learned Counsel relied on the decision of the Apex Court in **P.V.Indiresan (2) v. Union of India** [(2011) 8 SCC 441] wherein it was held as follows: “25. The term “cut-off marks” in academic and judicial vocabulary has several meanings. When rejecting a person's request for selection on the ground that his marks are less than the marks secured by the last andidate who was selected, by describing the marks secured by the last candidate as “cut-off marks”. The words “cut-off marks” are also used while notifying a body of applicants who form part of a merit list or the general public, the marks secured by the W.P(C) No.10854 of 2013-F 5 last selected candidate so that they can know that persons with lesser merit/marks had not been selected or have no chance of being selected. “Cut-off marks” are also used to refer to the minimum marks (either eligibility marks or qualifying marks) required for admission to a course.” According to the learned counsel, it is settled law that the minimum marks for selection should be predetermined and it cannot be fixed during the process of selection. In this case, only 2 vacancies were notified and 6 candidates were found eligible for the interview. Therefore, the fixation of cut off marks after the interview, according to the petitioner, was made for denying opportunity to him, only because the respondents could not get the candidate of their choice within the zone of consideration for appointment. 7. The decisions of the Apex Court in **Parmender Kumar v. State of Haryana** [(2012) 1 SCC 177], **Durgacharan Mishra V State of Orissa & others** [(1987)4 SCC 646:1987 KHC 1120] were also relied on by the learned counsel. In this case what is done is elimination of all the candidates after the candidates were shown their competence, ie. after the selection committee came to know about the competence of all the candidates, which cannot be permitted. 8. On the other hand, Sri P.Gopinath relied on the W.P(C) No.10854 of 2013-F 6 judgment in **Yogesh Yadav v. Union of India** [AIR 2013 SC 3372], in which the Apex Court was dealing with a case where candidates for appointment to the post of Deputy Director (Law) belonging to OBC were totally excluded by fixing a cut off marks. Referring to the mode of selection and the advertisement inviting applications for the same, the exclusion of candidates for want of the cut off marks was upheld, though it was fixed after the test. In paragraph 5 of the judgment, the mode of selection has been extracted from the advertisement which reads as follows: **==> picture [355 x 23] intentionally omitted <==** **==> picture [111 x 10] intentionally omitted <==** All the applications received by the due date will be screened with reference to the minimum qualification criteria. From amongst the eligible candidates, suitable candidates will be short listed through a transparent mechanism and the short listed candidates will be called for interview before final selection. Mere fulfilling of minimum qualifications by itself would not entitle any applicant for being called for interview.” It is the contention of Sri P.Gopinath that they are on a better footing because of clauses 10 and 11 of Ext.R1(a), which provided that fullfilment of minimum qualification and experience will not make a candidate eligible to be qualified for the post. Clause 11 specifically indicated the power of the selection committee to fix the minimum cut off marks at any W.P(C) No.10854 of 2013-F 7 stage. Therefore, there was sufficient warning to the candidates that the selection and appointment would be subject to the fixation of minimum cut off marks at any stage. According to the respondents, the petitioner should have challenged the notification itself where there was specific instruction regarding the fixation of minimum marks. 9. The case of the petitioner that, cut off marks for the purpose of shortlisting and cut off marks for elimination of all the candidates have to be viewed differently, cannot be accepted in a case like this where the advertisement provided for fixing of minimum eligibility critera and therefore, the judgments relied on by the petitioner cannot be made applicable in this case. **Parmender Kumar** 's case (supra) and **P.V.Indiresan** 's case (supra) rendered in respect of admission to educational institution also cannot be applied to the facts of this case . 10. It is always proper, fair and just that the candidates are put on notice of the criterion for selection and in case the cut off marks is to be fixed, it is always better to fix it before the competence of the candidate is shown. But in view of the judgment of the Apex Court in **Yogesh Yadav** (supra), it cannot be said that there is any flaw in the process of selection. W.P(C) No.10854 of 2013-F 8 However, it is pointed out that the previous selection was also conducted in the same manner in which no candidate of their choice was available and it was in continuation of that selection that the present selection was made. Therefore, the contention of petitioner regarding malice or malafides cannot be accepted. In the above circumstances, there is no reason to interfere with the decision taken in Ext.P4 and the petitioner cannot be granted any reliefs sought for in this Writ petition. Accordingly, the Writ Petition is dismissed. Sd/- **(P.V.ASHA, JUDGE)** rtr/