The Assam Public Service Commission vs Pranjal Kumar Sarma

CIVIL APPEAL NO. 9100 OF 2019 (Arising out of SLP(C) No. 23677 OF 2019)

THE ASSAM PUBLIC SERVICE COMMISSION & ORS. APPELLANT(S)

VERSUS

PRANJAL KUMAR SARMA & ORS. RESPONDENT(S)

J U D G M E N T

Hrishikesh Roy, J.

Leave granted.

2. This appeal arises out of the Special Leave Petition

(Civil) No. 23677 of 2019. The Assam Public Service

Commission (for short “APSC”) has approached this Court

to challenge the judgment and order dated 8th August, 2019

in W.P. (C) No. 4600 of 2019 whereby the Gauhati High

Court struck down a portion of Clause 12.2 of the Assam Signature Not Verified

Public Digitally signed by MAHABIR SINGH Date: 2019.11.28 Service Commission (Conduct of Business) 16:00:15 IST Reason:

Procedure, 2019 (hereinafter referred to as “the 2019

Page 1 of 13 Procedure”). The following portion of Clause 12.2,

incorporated with effect from 1st April, 2019, under the

2019 Procedure, was struck down by the High Court.

“…………and any proceeding in relation to interviews, selections or competitive examination pending on the date of commencement of these Procedures may be continued and completed in accordance with the provisions of the Rules in force prior to such commencement.”

3. The result of the above is that the norms of

selection for an ongoing process gets changed mid-stream

in course of recruitment, for the 65 vacancies of

Assistant Engineer (Civil) under the Water Resources

Department for which, the APSC had issued an

advertisement on 21st December, 2018 (“Annexure P-I”). On

the date of the advertisement, the previous norms i.e.

the Assam Public Service Commission (Procedure and

Conduct of Business) Rules, 2010 (hereinafter referred to

as “the 2010 Rules”), were in operation. The 2010 Rules

provided for assessment of academic merit, special

knowledge, additional relevant qualification, relevant

service experience etc. under Rule 29 and 30, in the

following manner: -

Page 2 of 13

“29. The Commission may determine the qualifying standard by giving weightage on academic merit, subject knowledge, additional relevant qualification, service experience relevant to the post etc. for preparing the final order of select list.

30. In the viva-voce test marks shall be allocated as below:

(i) 50% on academic/professional qualification/service experience relevant to the post/preferential qualification.

(ii) 50% for subject knowledge and general bearing. Out of this, 20% shall be for subject knowledge and the remaining 30% for general bearing.

There shall be five gradings for Adviser/Expert’s marks viz., ‘Excellent’, ‘Very Good’, ‘Good’, ‘Fair’ and ‘Average’, the value of which shall be determined by the Commission.”

4. The aforesaid 2010 Rules were challenged by one

Manash Pratim Baruah in the Gauhati High Court through

W.P.(C) No. 1998 of 2017. He contended that the State

Public Service Commission is not empowered to adopt any

Rule in the nature of the 2010 Rules as was done by the

APSC, by invoking the powers under proviso to Article 320

of the Constitution of India. During the pendency of the

Writ Petition, the 2010 Rules were repealed and a new set

of procedure i.e, “The Assam Public Service Commission

(Conduct of Business) Procedure, 2019” came into effect,

Page 3 of 13 from 1st April, 2019. Accordingly, the APSC through their

affidavit filed in the W.P.(C) No. 1998 of 2017 informed

the High Court about adoption of the 2019 Procedure.

5. During that period, acting on the advertisement

(dated 21.12.2018) to fill up the 65 posts of Assistant

Engineer (Civil), the APSC on 12.06.2019 had notified

that an OMR based screening test, with multiple choice

objective type questions, will be conducted on

30.06.2019. The said screening test was conducted under

the 2010 Rules and as such there was no negative marking

which was introduced for the first time by the 2019

Procedure, for the APSC conducted selections.

6. The four respondents had offered their candidature by

responding to the advertisement dated 21st December, 2018

and they appeared in the screening test conducted on

30.06.2019. Nevertheless they also filed the W.P.(C) No.

4600 of 2019 challenging Clause 12.2 of the 2019

Procedure which provided that notwithstanding the repeal

of the 2010 Rules, the action taken under the repealed

Rules including conduct of interview/selection or

competitive examination or declaration of any result

thereof by the APSC, shall be deemed to have been valid

and the pending interviews/selections or competitive Page 4 of 13 examinations may be continued and completed, in

accordance with the 2010 Rules. The basic challenge

therefore, by the four respondents as writ petitioners,

was to the saving clause for the ongoing recruitment

process conducted under the 2010 Rules. It would be

relevant to mention at this stage that in view of the

adoption of the 2019 Procedure by repealing the 2010

Rules, the earlier W.P.(C) No. 1998 of 2017 was disposed

of as infructuous on 16th July, 2019 by the High Court

reserving the liberty to the writ petitioner to assail,

if aggrieved, the newly formulated 2019 Procedure.

7. The Gauhati High Court on 22.07.2019 issued

returnable notice in the W.P.(C) No. 4600 of 2019 and the

Division Bench after noticing that the APSC is conducting

large number of examinations made an observation that

attempt would be made to dispose of the matter on the

returnable date i.e. 08th August, 2019.

8. The case was next considered on the returnable date

and the High Court under the impugned judgment dated

08.08.2019 held that the 2010 Rules will have no

application for those interviews/selections for which,

exercise has not begun. The Court also observed that the

advertisement issued prior to 01.04.2019 (the date of Page 5 of 13 commencement of the 2019 Procedure) has no relevance for

the applicability of the 2019 Procedure and accordingly

held that even in a situation where the written

examination was held but interview is yet to be

conducted, the newly introduced 2019 procedure has to be

applied in the interview segment of the selection. It

was finally observed that all pending

interviews/selections and competitive examinations, even

if occasioned by advertisements issued prior to

01.04.2019 shall be guided by the 2019 Procedure. The

Writ Petition of the respondents was accordingly allowed

on 08.08.2019 by the High Court.

9.1 Assailing the legality of the impugned judgment, Mr.

Parthiv K. Goswami, learned counsel submits that

currently the APSC, besides conducting the subject

recruitment/selection for the Water Resources Department,

is also undertaking selection process for the posts of,

inter alia, Computer Operator/Typist, Forest Ranger,

Agricultural Development Officer for which respective

advertisements were issued prior to incorporation of the

2019 Procedure and the process of selection through

screening test/written test were conducted under the 2010

Rules. Insofar as the recruitment for the 65 posts of

Page 6 of 13 Assistant Engineer (Civil) advertised on 21.12.2018, the

learned counsel points out that the last date for

applying for the post was stipulated as 02.02.2019 and

thereafter around 6000 applicants including the four

respondents, appeared for the screening test conducted on

30.06.2019 under the 2010 Rules. Adverting to these

relevant dates, the appellants would argue that the

process of selection in the present case had commenced

with the issuance of advertisement well before the 2019

Procedure was notified with effect from 01.04.2019 and

therefore, the selection should be in accordance with the

2010 Rules which prevailed on the date of the

advertisement.

9.2 The appellant’s counsel then argues that alteration

of the selection norms by the APSC through the 2019

Procedure which has prospective application, should have

no bearing on the ongoing process, on account of the

savings clause incorporated in the 2019 Procedure.

10.1 Per contra Ms. Rekha Pandey, learned counsel

appearing on behalf of respondent Nos. 1 to 4 (writ

petitioners) by referring to the preamble of the 2019

Procedure argues that the new Procedure was adopted to

bring in more transparency in the conducting of Page 7 of 13 recruitment by the Commission, on account of the

deficiencies noticed in the process in the 2010 Rules.

She accordingly argues that adopting the 2019 Procedure

for the viva-voce segment of the recruitment exercise

would ensure weightage for merit and avoidance of

arbitrary selection, which was possible under the 2010

Rules.

10.2 The respondents counsel then refers to Rules 29 and

30 of the 2010 Rules to highlight that the procedure

envisaged did not provide adequate weightage to test the

merit of the candidates, on their academic/professional

qualification, service experience, etc. and therefore,

the 2019 Procedure should govern the next phase of

selection.

11. To deal with the rival submission, the relevant

clauses in the process of selection envisaged under the

2019 Procedure, will bear consideration. The concept of

negative marking is introduced for the first time under

Clause 4(B)(ii) which provides that for each wrong

answer, @ 0.25 marks are deducted against each question.

Besides the Clause 4(B)(vi) stipulates that marks for the

interview shall not exceed 12.2 per cent of the total

Page 8 of 13 marks. The screening test in which the respondents and

other candidates appeared on 30.06.2019 under the 2010

Rules as earlier noted, had no negative marking and,

therefore, the candidates could take the risk of guessing

the correct answer in the multiple choice test, without

the fear of being penalised for incorrect answer.

12. In the above backdrop, if the next segment of

selection is to be conducted under the 2019 Procedure,

the performance of the candidate in the aforenoted

screening test to the extent of 87.8 per cent of the

total marks, will determine the final selection of the

candidate. The question, therefore, is whether this

would be fair on the candidates when the performance of

few would be determined more by lucky guess and the real

merit may have no role in the aggregate score. The other

relevant question is whether the method of selection

should be permitted to be changed midway, by adopting the

2019 Procedure incorporated with effect from 01.04.2019

for the vacancies, which were advertised on 21.12.2018.

13. The law with regard to applicability of the Rules

which are brought anew during the selection process have

been crystalized by this Court. It has been held that

Page 9 of 13 the norms existing on the date when the process of

selection begins, will control the selection and the

alteration to the norms would not affect the ongoing

process unless the new Rules are to be given

retrospective effect. (See State of Bihar and Others vs.

Mithilesh Kumar1). Similarly in N.T. Devin Katti and

Others vs. Karnataka Public Service Commission and

Others2, this Court held that a candidate has a limited

right of being considered for selection in accordance

with the Rules as they existed on the date of

advertisement and he cannot be deprived of that limited

right by amendment of the Rules during the pendency of

the selection, unless the Rules are to be applied

retrospectively.

14. If we proceed with the above enunciation of the law

in Mithilesh Kumar (supra) and N.T. Devin Katti (supra),

the conclusion is inevitable that for the current

recruitment process for which advertisement was issued on

21.12.2018, the 2019 Procedure (which came into effect

from 01.04.2019) can have no application, particularly

when the first phase of the selection i.e. the screening

test was conducted under the 2010 Rules.

1 (2010) 13 SCC 467 2 (1990) 3 SCC 157 Page 10 of 13

15. One must also be conscious of the savings Clause 12.2

incorporated in the 2019 Procedure which makes it

abundantly clear that the interviews/selection or

competitive examinations pending on the date of

commencement of the Procedure should be continued and

completed, in accordance with the 2010 Rules.

16. In the present case, if the contention advanced by

the respondents is accepted and the next segment of the

process of selection is carried out under the 2019

Procedure, it will give rise to an anomalous situation

inasmuch as the screening test which was conducted

without negative marking, under the 2010 Rules, without

provisions for negative markings, will have a major

bearing in the final outcome of selection. This would

definitely prejudice the candidates who have undertaken

exams under 2010 Rules. The consistent law on the issue

also makes it clear that recruitment process pursuant to

the advertisement issued by the APSC on 21 st December,

2018 must necessarily be conducted under the selection

norms as applicable on the date of the advertisement.

Moreover, having regard Rule 29 and Rule 30 of the 2010

Rules, it must also be said that merit of the candidates

would definitely be assessed in the selection exercise, Page 11 of 13 undertaken by the APSC. The APSC is also capable of

conducting a fair selection and we believe that they will

keep in mind, the lawful expectation and the

constitutional mandate.

17. If the direction in the impugned judgment of the High

Court is to be followed for conducting the next segment

of the selection, for the single recruitment process the

candidates will be evaluated by two different sets of

procedure i.e. the 2010 Rules and the 2019 Procedure and

such dual norms must not in our opinion, govern the

ongoing recruitment process.

18. In view of the foregoing, we are persuaded to hold

that the recruitment process initiated by the APSC

through the advertisement dated 21.12.2018 for the 65

posts of Assistant Engineer (Civil), of the Water

Resources Department should be finalised under the 2010

Rules. Consequently, the direction issued for application

of the 2019 Procedure in the impugned judgment is found

to be not merited and the same is accordingly interfered.

The appeal stands allowed by permitting the APSC to

complete the process of selection for the advertised

posts, by following the 2010 Rules.

Page 12 of 13 ………………………………………………J. [R.BANUMATHI]

………………………………………………J. [A.S.BOPANNA]

……………………………………………J. [HRISHIKESH ROY]

NEW DELHI NOVEMBER 28, 2019

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