Shubham Suresh Bhotmange v. The Secretary Maharashtra Public Service Commission & Ors.

11. Before preliminary examination could be conducted, proclamation dated 25th May, 2021 came to be issued by the Commission amending the criteria for conducting physical test. It was directed that the minimum qualifying marks in the physical test would 60% (60 marks) and that the marks obtained in physical test would not be taken into consideration while preparing fnal merit list. Certain other details for conducting physical test and marks for various sub-categories of physical test also came to be prescribed, with which we are not concerned. Suffce it to state that proclamation dated 25th May, 2021 introduced twin changes of prescribing 60% Vina Khadpe minimum qualifying marks in the physical test with a further caveat the marks obtained in the physical test would not be taken into consideration for preparing fnal merit list. Though the notifcation was issued on 25th May, 2021, curiously it was retrospectively made applicable to all advertisements issued in the year 2020.

12. Preliminary examination was held on 4th September, 2021, the result thereof published on 3rd December, 2021. Thereafter, the programme for holding main examination was published on 10th December, 2021, in which the slight amendment was made with regard to the total marks for which the main examination was to be conducted. It was directed that the main examination would now be conducted for 400 marks. The marks for physical test (100) and for oral interview (40) remained unaltered. Main written examination was conducted on various dated between 22nd January, 2022 to 12 February, 2022 for 400 marks. The result for written examination was declared on 17th November, 2022.

13. After declaration of result of main examination, Corrigendum dated 13th December, 2022 came to be issued Vina Khadpe directing that the previous proclamation dated 25th May, 2021 would not be made applicable to the concerned selection and that the marking criteria to physical test as stipulated on date of issuance of advertisement would be made applicable. Thus, the original scheme of considering the marks secured in physical test for preparation of fnal merit list was restored by bringing down qualifying marks for physical test from 60 to 50.

14. Petitioners are mainly aggrieved by the direction to consider the marks obtained in the physical test for preparation of fnal merit list. The direction is sought to be interpreted to mean as if the same amounts to changing the goalposts after game has begun. We are unable to agree. What is essentially done by the Commission is mere restoration of marking system for the physical test as was applicable at the time of issuance of advertisement. The physical test is yet to be conducted. Before conduct of physical test, the Commission has clarifed that the amendment sought to be introduced by proclamation dated 25th May, 2021 would not retrospectively apply to 2020-selection. Such action in our view, would not amount to changing the goalposts after the beginning of the Vina Khadpe game. In fact proclamation dated 25th May, 2021 could well be construed as changing the goalposts as the same effected the change in marking system for physical test after issuance of advertisement and during the currency of selection process. The petitioners did not question proclamation dated 25th May, 2021, as the same possibly suited them. Merely because restoration of original marking system for physical test is unsuitable to Petitioners, they cannot selectively seek to challenge the same. There is one more change brought about by the Commission, which is not challenged by Petitioner, again because it suits their interest. The action of Commission in increasing the marks allocated for main written test from 200 to 400 is again selectively not questioned by Petitioners. Such selective approach adopted by Petitioners required to be deprecated.

15. Heavy reliance has been placed by the petitioners on Judgment in the case of Manjusree (supra), however, the facts in Manjusree are entirely distinguishable. In that case, it was resolved to conduct written examination of 100 marks and oral examination of 25 marks. After the examinations were conducted, results thereof published and selected list was Vina Khadpe prepared, the full Court of the High Court declined to accept the select list recommended by the Committee and formed a sub-Committee of Judges to prepare fresh list. The said sub- Committee opined that the candidates should have been evaluated with reference to written examination of 75 marks and interview of 25 marks. This is how the marks obtained in the written examination was sought to be scaled down from 100 to 75 and after declaration of results and perpetration of select list. Another change adopted was to prescribe minimum qualifying marks for interview, which was initially absent. While Apex Court approved the former change, the later change of introducing criteria of minimum marks for interview was held to be impermissible. Thus, the facts in the case of Manjusree are clearly distinguishable. The Tribunal has rightly distinguished the Judgment.

16. The reliance of Mr. Dere on the Judgment of this Court in the case of State of Uttar Pradesh v. Karunesh Kumar (supra), far from assisting his case, actually militates against him. In that case, the Apex Court has held in paragraph 32 as under;

32. The respondents have also placed reliance on the decision of this Court in the case of K. Manjusree (supra). However, in our considered view, the facts of the aforesaid decision are quite different from the present case. A change was introduced for the Vina Khadpe frst time after the entire process was over, based on the decision made by the Full Court qua the cut off. Secondly, it is not as if the private respondents were nonsuited from participating in the recruitment process. The principle governing changing the rules of game would not have any application when the change is with respect to selection process but not the qualifcation or eligibility. In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process. It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person suitable for a job. (emphasis supplied) Admittedly in the present case, the eligibility criteria has nit been changed in nay manner and therefore following the decision in Karunesh Kumar (supra), the argument of changing the rules of game would not be available for the Petitioners.

17. As observed above, the marking criteria for written test and physical test have altered from time to time by the Commission. Initially, the written test was to be conducted for 200 marks whereas the same is actually conducted for 400 marks. The petitioners are not aggrieved by this decision, possibly because they have secured higher marks in written examination. Now they fear that the candidates who are likely to secure more marks in physical test (who have secured lesser marks in written test) might supersede them. Apart Vina Khadpe from the fact that the said apprehension is speculative in nature, petitioners have clearly secured advantage on account of increase in marks allocated for written test from 200 to 400. In this context, we put across to Mr. Dere a hypothetical illustration of comparative position of candidate scoring more marks in written test and his counterpart capable of securing more marks in physical test as under: Earlier marking system Revised marking system Physical test (100) Witten test (400) Physical test (100) Candidate A 150 60 210 300 60 360 Candidate B 149 61 210 298 61 359 Above illustration would indicate as to how increase in allocation of marks in main written test puts a candidate scoring more marks in written test at an advantageous position over his counterpart capable of securing more marks in physical test. Mr. Dere fairly accepts the above position, but submits that there is no increase in the syllabi for written test. This in our view, would not take away the advantage which candidates may gain on account of increase in allocation of marks in written test. Our fndings in this regard are recorded only to deal with selective approach of Petitioners in not Vina Khadpe questioning increase in allocation of marks in written test and shall not be construed to mean as if we have held such increase in allocation to be illegal.

18. Merely because the original scheme of consideration of marks obtained in physical test is restored, there is no reason for the petitioners to feel aggrieved. The revised marking pattern for physical test would be uniformly made applicable to all candidates participating in the selection process. It cannot be said that the decision of the Commission is arbitrary. In our view, therefore, the Tribunal has not committed any error in dismissing the Original Application of Petitioners.

19. Petition fled by the petitioners is thus devoid of merits, the same dismissed without any order as to costs. Rule stand discharged. (SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)