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The Assam Public Service Commission Vs. Pranjal Kumar Sarma [28/11/19]

Section

The Assam Public Service Commission Ors. Vs. Pranjal Kumar Sarma Ors.

[Civil Appeal No. 9100 of 2019 arising out of SLP(C) No. 23677 of 2019]

Hrishikesh Roy, J.

1.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 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: –

“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, 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 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 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.

9.1Assailing
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 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 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 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 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.

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, 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.

…………………………..J.
[R.BANUMATHI]

…………………………..J.
[A.S.BOPANNA]

……………………..J.
[HRISHIKESH ROY]

NEW DELHI

NOVEMBER 28,
2019

1 (2010) 13 SCC 467

2 (1990) 3 SCC 157

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