Case: THE ASSAM PUBLIC SERVICE COMMISSION Vs. PRANJAL KUMAR SARMA

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 Kumar (2010) 13 SCC 467 ). Similarly in N.T. Devin Katti and Others vs. Karnataka Public Service Commission and Others (1990) 3 SCC 157 , 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 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, 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.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.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, 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.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.