REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

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

Public  Service  Commission  (Conduct  of  Business)

Procedure,  2019 (hereinafter  referred  to  as  “the  2019

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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: -

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“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,

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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

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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

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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

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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

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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

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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

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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

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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 21st 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,

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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.

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………………………………………………J. [R.BANUMATHI]

………………………………………………J. [A.S.BOPANNA]

……………………………………………J.     [HRISHIKESH ROY]

NEW DELHI NOVEMBER 28, 2019

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