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

The Assam Public Service Commission (for short ?APSC?) has approached this Court to challenge the judgment and order dated 8 th 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 1 st April, 2019, under the 2019 Procedure, was struck down by the Highany 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.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 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 (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: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.In the viva-voce test marks shall be allocated as50% on academic/professional qualification/service experience relevant to the post/preferential50% for subject knowledge and general bearing. Out of this, 20% shall be for subject knowledge and the remaining 30% for generalshall 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.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 procedureAssam Public Service Commission (Conduct of Business) Procedure,into effect, from 1 st 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.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.The four respondents had offered their candidature by responding to the advertisement dated 21 st 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 16 th July, 2019 by the High Court reserving the liberty to the writ petitioner to assail, if aggrieved, the newly formulated 2019 Procedure.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. 08 th August, 2019.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.

Reasoning: 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.