THE ASSAM PUBLIC SERVICE COMMISSION & ORS. versus PRANJAL KUMAR SARMA & ORS. on 28 November 2019

1072

SUPREME COURT REPORTS

[2019] 14 S.C.R.

ATHE ASSAM PUBLIC SERVICE COMMISSION & ORS.

v.

PRANJAL KUMAR SARMA & ORS.

(Civil Appeal No.9100 of 2019)

BNOVEMBER 28, 2019

[R.BANUMATHI, A.S. BOPANNA ANDHRISHIKESH ROY, JJ.]

Assam Public Service Commission (Conduct of Business)Procedure, 2019: Clause 12.2 – Clause 12.2 lays down that anyCproceeding in relation to interviews, selections or competitiveexamination, pending on the date of commencement of 2019Procedure may be continued and completed in accordance with theprovisions of the Rules in force prior to such commencement – Byimpugned order, High Court struck down the clause holding thatDall pending interviews/selections and competitive examinations evenif occasioned by advertisements issued prior to 01.04.2019 shallbe guided by the 2019 Procedure and not 2010 Rules – Held: Thenorms existing on the date when the process of selection begins,control the selection and the alteration to the norms would not affectthe ongoing process unless the new Rules are to be givenEretrospective effect – In the instant case, for the recruitment processfor which advertisement was issued on 21.12.2018, the 2019Procedure (which came into effect from 01.04.2019) can have noapplication, particularly when the first phase of the selection i.e.the screening test was conducted under the 2010 Rules – ClauseF12.2 incorporated in the 2019 Procedure makes it abundantly clearthat the interviews/selection or competitive examinations pendingon the date of commencement of the Procedure should be continuedand completed, in accordance with the 2010 Rules – Thus,recruitment process pursuant to the advertisement issued by the APSCon 21[st] December, 2018 must necessarily be conducted under theGselection norms as applicable on the date of the advertisement –Assam Public Service Commission (Procedure and Conduct ofBusiness) Rules, 2010 – rr.29 and 30.

Allowing the appeal, the Court

HELD: The concept of negative marking is introducedfor the first time under Clause 4(B)(ii) which provides that foreach wrong answer, @ 0.25 marks are deducted against eachquestion. Besides the Clause 4(B)(vi) stipulates that marks forthe interview shall not exceed 12.2 per cent of the total marks.The screening test in which the respondents and other candidatesappeared on 30.06.2019 under the 2010 Rules had no negativemarking and, therefore, the candidates could take the risk ofguessing the correct answer in the multiple choice test, withoutthe fear of being penalised for incorrect answer. In this backdrop,if the next segment of selection is to be conducted under the2019 Procedure, the performance of the candidate in theaforenoted screening test to the extent of 87.8 per cent of thetotal marks, will determine the final selection of the candidate. Ifthe contention advanced by the respondents is accepted and thenext segment of the process of selection is carried out under the2019 Procedure, it will give rise to an anomalous situationinasmuch as the screening test which was conducted withoutnegative marking, under the 2010 Rules, without provisions fornegative markings, will have a major bearing in the final outcomeof selection. This would definitely prejudice the candidates whohave undertaken exams under 2010 Rules. If the direction in theimpugned judgment of the High Court is to be followed forconducting the next segment of the selection, for the singlerecruitment process the candidates will be evaluated by twodifferent sets of procedure i.e. the 2010 Rules and the 2019Procedure and such dual norms must not govern the ongoingrecruitment process. [Paras 11-12, 16-17] [1077-H; 1078-A-C;1079-C-F]

State of Bihar and Others v. Mithilesh Kumar(2010)13 SCC 467 : [2010] 10 SCR 161;N.T. Devin Katti and Others v. Karnataka Public Service Commissionand Others (1990) 3 SCC 157 – relied on.

Case Law Reference

[2010] 10 SCR 161(1990) 3 SCC 157

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 9100of 2019

From the Judgment and Order dated 08.08.2019 of the GauhatiHigh Court at Guwahati in W.P.(C) No. 4600 of 2019

Parthiv K. Goswami, Ms. Palak Mahajan, Rahul Pratap, VivekBGupta, Advs. for the Appellants.

Naleen Kohli, AAG, Mrs. Rekha Pandey, Shiv P. Pandey, RaghavPandey, Ms. Smriti Kumari, Debojit Borkakati, Vivek Sonkar, Advs. forthe Respondents.

CThe Judgment of the Court was delivered by 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 shortD“APSC”) has approached this Court to challenge the judgment and orderdated 8[th] August, 2019 in W.P. (C) No. 4600 of 2019 whereby the GauhatiHigh Court struck down a portion of Clause 12.2 of the Assam PublicService Commission (Conduct of Business) Procedure, 2019(hereinafter referred to as “the 2019 Procedure”). The followingEportion of Clause 12.2, incorporated with effect from 1[st] 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 dateof commencement of these Procedures may be continuedFand completed in accordance with the provisions of theRules in force prior to such commencement.”

3. The result of the above is that the norms of selection for anongoing process gets changed mid-stream in course of recruitment, forthe 65 vacancies of Assistant Engineer (Civil) under the Water ResourcesGDepartment for which, the APSC had issued an advertisement on 21[st]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 (hereinafterreferred to as “the 2010 Rules”), were in operation. The 2010 Rulesprovided for assessment of academic merit, special knowledge, additional H

ASSAM PUBLIC SERVICE COMMISSION v. PRANJALKUMAR SARMA [HRISHIKESH ROY, J.]

relevant qualification, relevant service experience etc. under Rule 29and 30, in the following manner: - “29. The Commission may determine the qualifying standard bygiving weightage on academic merit, subject knowledge, additionalrelevant 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 experiencerelevant 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% forgeneral bearing.

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

4. The aforesaid 2010 Rules were challenged by one ManashPratim Baruah in the Gauhati High Court through W.P.(C) No. 1998 of2017. He contended that the State Public Service Commission is notempowered to adopt any Rule in the nature of the 2010 Rules as wasdone by the APSC, by invoking the powers under proviso to Article 320of the Constitution of India. During the pendency of the Writ Petition,the 2010 Rules were repealed and a new set of procedure i.e, “TheAssam Public Service Commission (Conduct of Business) Procedure,2019” came into effect, from 1[st] April, 2019. Accordingly, the APSCthrough their affidavit filed in the W.P.(C) No. 1998 of 2017 informedthe High Court about adoption of the 2019 Procedure.

5. During that period, acting on the advertisement (dated21.12.2018) to fill up the 65 posts of Assistant Engineer (Civil), the APSCon 12.06.2019 had notified that an OMR based screening test, withmultiple choice objective type questions, will be conducted on 30.06.2019.The said screening test was conducted under the 2010 Rules and assuch there was no negative marking which was introduced for the firsttime by the 2019 Procedure, for the APSC conducted selections.

6. The four respondents had offered their candidature byresponding to the advertisement dated 21[st] December, 2018 and they A

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Aappeared in the screening test conducted on 30.06.2019. Neverthelessthey also filed the W.P.(C) No. 4600 of 2019 challenging Clause 12.2of the 2019 Procedure which provided that notwithstanding the repealof the 2010 Rules, the action taken under the repealed Rules includingconduct of interview/selection or competitive examination or declarationof any result thereof by the APSC, shall be deemed to have been validBand the pending interviews/selections or competitive examinations maybe 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 conductedunder the 2010 Rules. It would be relevant to mention at this stage thatCin view of the adoption of the 2019 Procedure by repealing the 2010Rules, the earlier W.P.(C) No. 1998 of 2017 was disposed of asinfructuous on 16[th] July, 2019 by the High Court reserving the liberty tothe writ petitioner to assail, if aggrieved, the newly formulated 2019Procedure.

D7. The Gauhati High Court on 22.07.2019 issued returnable noticein the W.P.(C) No. 4600 of 2019 and the Division Bench after noticingthat the APSC is conducting large number of examinations made anobservation that attempt would be made to dispose of the matter on thereturnable date i.e. 08[th] August, 2019.

E8. The case was next considered on the returnable date and theHigh Court under the impugned judgment dated 08.08.2019 held that the2010 Rules will have no application for those interviews/selections forwhich, exercise has not begun. The Court also observed that theadvertisement issued prior to 01.04.2019 (the date of commencement ofthe 2019 Procedure) has no relevance for the applicability of the 2019FProcedure and accordingly held that even in a situation where the writtenexamination was held but interview is yet to be conducted, the newlyintroduced 2019 procedure has to be applied in the interview segmentof the selection. It was finally observed that all pending interviews/selections and competitive examinations, even if occasioned byGadvertisements issued prior to 01.04.2019 shall be guided by the 2019Procedure. The Writ Petition of the respondents was accordingly allowedon 08.08.2019 by the High Court.

9.1 Assailing the legality of the impugned judgment, Mr. ParthivK. Goswami, learned counsel submits that currently the APSC, besidesHconducting the subject recruitment/selection for the Water Resources

Department, is also undertaking selection process for the posts of, interalia, Computer Operator/Typist, Forest Ranger, AgriculturalDevelopment Officer for which respective advertisements were issuedprior to incorporation of the 2019 Procedure and the process of selectionthrough screening test/written test were conducted under the 2010Rules. Insofar as the recruitment for the 65 posts of Assistant Engineer(Civil) advertised on 21.12.2018, the learned counsel points out that thelast date for applying for the post was stipulated as 02.02.2019 andthereafter around 6000 applicants including the four respondents,appeared for the screening test conducted on 30.06.2019 under the 2010Rules. Adverting to these relevant dates, the appellants would arguethat the process of selection in the present case had commenced withthe issuance of advertisement well before the 2019 Procedure wasnotified with effect from 01.04.2019 and therefore, the selection shouldbe in accordance with the 2010 Rules which prevailed on the date ofthe advertisement.

9.2 The appellant’s counsel then argues that alteration of theselection norms by the APSC through the 2019 Procedure which hasprospective 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 appearingon behalf of respondent Nos. 1 to 4 (writ petitioners) by referring to thepreamble of the 2019 Procedure argues that the new Procedure wasadopted to bring in more transparency in the conducting of recruitmentby the Commission, on account of the deficiencies noticed in the processin the 2010 Rules. She accordingly argues that adopting the 2019Procedure for the viva-voce segment of the recruitment exercise wouldensure weightage for merit and avoidance of arbitrary selection, whichwas possible under the 2010 Rules.

10.2 The respondents counsel then refers to Rules 29 and 30 ofthe 2010 Rules to highlight that the procedure envisaged did not provideadequate weightage to test the merit of the candidates, on their academic/professional qualification, service experience, etc. and therefore, the2019 Procedure should govern the next phase of selection.

11. To deal with the rival submission, the relevant clauses in theprocess of selection envisaged under the 2019 Procedure, will bearconsideration. The concept of negative marking is introduced for the A

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Afirst time under Clause 4(B)(ii) which provides that for each wronganswer, @ 0.25 marks are deducted against each question. Besides theClause 4(B)(vi) stipulates that marks for the interview shall not exceed12.2 per cent of the total marks. The screening test in which therespondents and other candidates appeared on 30.06.2019 under the2010 Rules as earlier noted, had no negative marking and, therefore,Bthe candidates could take the risk of guessing the correct answer in themultiple choice test, without the fear of being penalised for incorrectanswer.

12. In the above backdrop, if the next segment of selection is tobe conducted under the 2019 Procedure, the performance of theCcandidate in the aforenoted screening test to the extent of 87.8 per centof the total marks, will determine the final selection of the candidate.The question, therefore, is whether this would be fair on the candidateswhen the performance of few would be determined more by lucky guessand the real merit may have no role in the aggregate score. The other Drelevant question is whether the method of selection should be permittedto be changed midway, by adopting the 2019 Procedure incorporatedwith effect from 01.04.2019 for the vacancies, which were advertisedon 21.12.2018.

13. The law with regard to applicability of the Rules which areEbrought anew during the selection process have been crystalized by thisCourt. It has been held that the norms existing on the date when theprocess of selection begins, will control the selection and the alterationto the norms would not affect the ongoing process unless the new Rulesare to be given retrospective effect. (See State of Bihar and Othersvs. Mithilesh Kumar[1]). Similarly inN.T. Devin Katti and Others vs.FKarnataka Public Service Commission and Others[2], this Court heldthat a candidate has a limited right of being considered for selection inaccordance with the Rules as they existed on the date of advertisementand he cannot be deprived of that limited right by amendment of theRules during the pendency of the selection, unless the Rules are to beGapplied retrospectively.

14. If we proceed with the above enunciation of the law inMithilesh Kumar (supra) and N.T. Devin Katti(supra), the conclusionis inevitable that for the current recruitment process for which1(2010) 13 SCC 467H2(1990) 3 SCC 157

advertisement was issued on 21.12.2018, the 2019 Procedure (whichcame into effect from 01.04.2019) can have no application, particularlywhen the first phase of the selection i.e. the screening test was conductedunder the 2010 Rules.

15. One must also be conscious of the savings Clause 12.2incorporated in the 2019 Procedure which makes it abundantly clearthat the interviews/selection or competitive examinations pending on thedate of commencement of the Procedure should be continued andcompleted, in accordance with the 2010 Rules.

16. In the present case, if the contention advanced by therespondents is accepted and the next segment of the process of selectionis carried out under the 2019 Procedure, it will give rise to an anomaloussituation inasmuch as the screening test which was conducted withoutnegative marking, under the 2010 Rules, without provisions for negativemarkings, will have a major bearing in the final outcome of selection.This would definitely prejudice the candidates who have undertakenexams under 2010 Rules. The consistent law on the issue also makesit clear that recruitment process pursuant to the advertisement issued bythe APSC on 21[st] December, 2018 must necessarily be conducted underthe selection norms as applicable on the date of the advertisement.Moreover, having regard Rule 29 and Rule 30 of the 2010 Rules, itmust also be said that merit of the candidates would definitely be assessedin the selection exercise, undertaken by the APSC. The APSC is alsocapable of conducting a fair selection and we believe that they will keepin mind, the lawful expectation and the constitutional mandate.

17. If the direction in the impugned judgment of the High Court isto be followed for conducting the next segment of the selection, for thesingle recruitment process the candidates will be evaluated by twodifferent sets of procedure i.e. the 2010 Rules and the 2019 Procedureand such dual norms must not in our opinion, govern the ongoingrecruitment process.

18. In view of the foregoing, we are persuaded to hold that therecruitment process initiated by the APSC through the advertisementdated 21.12.2018 for the 65 posts of Assistant Engineer (Civil), of theWater Resources Department should be finalised under the 2010 Rules.Consequently, the direction issued for application of the 2019 Procedure A

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Ain the impugned judgment is found to be not merited and the same isaccordingly interfered. The appeal stands allowed by permitting theAPSC to complete the process of selection for the advertised posts, byfollowing the 2010 Rules.

BDevika Gujral

Appeal allowed.

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