Arunachal Pradesh Public Serv.Comm.& ... vs Tage Habung & Ors

3. The facts of the case are that the Arunchal Pradesh Public Service Commission (in short, “the Commission”) issued an advertisement dated 25th July, 2006 inviting applications for admission to the Arunachal Pradesh Public Service Combined Competitive Examination (Preliminary) 2006-07 for recruitment to Group-A and Group-B posts under the Government of Arunachal Pradesh. A decision was taken by the Commission on 13th June, 2007 fixing a minimum cut-off marks at 40% in English as qualifying marks or as would be decided by the Commission in every written examination for recruitment to the posts and a notification to that effect was issued on 2nd July, 2007. The Main Examination commenced on 26th December, 2007 and the Commission vide its Notification dated 11th July, 2008 published a list of candidates who had qualified in General English by securing 40% marks. However, prior to the completion of the Main Examination, an Office Memorandum dated 7th January, 2008 (in short, “the O.M.”) had been issued by the State Government declaring the cut-off marks as 33% or more for all subjects in each written examination.

6. However, in compliance of Court’s order dated 30th September, 2008 passed in W.P. No. 271 of 2008, the Commission vide Notification dated 14th October, 2008 published the list of candidates who had secured a minimum of 33% marks in each written examination paper and who had secured 45% marks out of the aggregate total marks in the written examination papers. Thereafter, the respondents herein filed a writ petition being No. 417 of 2008 (renumbered at Principal Seat as Writ Petition (C) No. 4902 of 2008) challenging the O.M. dated 7th January, 2008. Meanwhile, the Commission completed the selection process and declared the results of viva voce test vide Notification dated 17th January, 2009 pursuant to which 100 candidates were selected for the posts.

15. On the basis of the aforesaid O.M. dated 7th January, 2008, a Notification dated 16th April, 2008 was issued by the Commission adopting the said O.M. The said Notification dated 16th April, 2008 is quoted hereinbelow:-

35. Situated thus, we do agree with the view expressed in W.P. (C ) No. 101(AP) of 2008 disposed of on 24.06.2008 as well as in paragraph 12 of the judgment and order dated 30.09.2008 recorded in W.P. (C) No. 271 (AP) of 2008. We do hold that the impugned O.M. dated 07.01.2008 shall not come in way of selection of the Writ Petitioners.”

18. In compliance of the aforesaid order, result of the Main Examination was declared by the Commission on 14th October, 2008 on the basis of the O.M. dated 7th January, 2008 as per the direction of the Single Judge made in Writ Petition No.271 of 2008.

23. With due respect, in our opinion the ratio decided by this Court in Calton’s case and reiterated in Sushil Kumar Ghosh’s case will not apply in the facts and circumstances of the present case. At the very outset, we agree with the view taken in the instant case that the decision taken by the Commission vide Notification dated 13th June, 2007 fixing the cut-off marks as 40% in English as qualifying marks was un-reasonable and unjustified. However, the decision dated 13th June, 2007 was not given effect because of the subsequent O.M. issued by the State Government dated 7th January, 2008 and adopted by the Commission vide Notification dated 16th April, 2008. The only question, therefore, that falls for consideration is as to whether the appellants were justified in fixing the minimum 33% qualifying marks in all the subjects in order to appear in the viva voce test. Indisputably, no separate qualifying marks were prescribed for qualifying in the viva voce test.

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30. Although it is desirable that the Commission should fix the minimum qualifying marks in each written examination, but in the instant case the power exercised by the Commission in recruiting the candidates to secure qualifying marks cannot be interfered with.

31. For all these reasons, we allow the appeal and set aside the order passed by the Division Bench of the High Court.