Holding

An amendment to a service rule is prospective and cannot change the selection criteria once the recruitment process has begun; therefore the Commission’s freezing of the ranking list and fresh advertisement precludes the respondent’s claim to appointment from the wait list.

Summary

The Andhra Pradesh Public Service Commission advertised for Assistant Public Relations Officer posts in 1995 and prepared a wait list valid for one year. While the original Rule 6 allowed selection from the wait list, it was amended on 30‑July‑1997 to require that fall‑out vacancies be filled in the next recruitment. The respondent, placed on the wait list, claimed entitlement to appointment to 14 vacancies notified on 14‑April‑1997. The High Court held the amended rule applicable and ordered her appointment. The Supreme Court reversed, ruling that once a selection process begins, the criteria cannot be altered retrospectively; the amendment is prospective and the Commission’s decision to freeze the ranking list and issue fresh advertisements shows it did not intend to apply the amended rule. Hence the respondent’s claim fails and the appeal is allowed.

Issues considered

Whether the amendment to Rule 6 of the A.P. Service Commission (Procedure) Rules, made after the commencement of the selection process, applies retrospectively to fill fall‑out vacancies from the wait list.
Whether selection criteria and qualification norms can be relaxed or altered after the selection process has started.
Whether the Commission had the authority to freeze the ranking list and direct fresh advertisements, thereby negating the effect of the amended rule.
Whether the respondent is entitled to appointment from the wait list for vacancies notified on 14‑April‑1997.
Interpretation of statutory rules as prospective unless expressly made retrospective.

Subjects

service lawselection processwait listrule amendmentprospective applicationrelaxation of normsfreezing ranking listpublic service commissionappointment

Judgment

SECRETARY, A.P. PUBLIC SERVICE COMMISSION A
v
B. SWAPNA AND ORS.

MARCH I 6, 2005

[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B

Service law :

A.P. Service Commission (Procedure) Rules-Rule 6-Selection-Wait
list-Commission could select candidates from wait list-Commission could C
also freeze the list-Respondent placed on wait list-Fresh advertisement for
recruitment-Rule amended stating that fall out vacancies to be filled up from
wait list-Respondent claiming entitlement to appointment-High Court holding
that amended rule was operative and directing Commission to forward name
of respondent for appointment-Justification of-Held : High Court was not D
justified in referring to the amended Rule as after commencement of selection
process, the prescribed selection criteria cannot be changed-The fact that
Commission had directed fresh advertisement cleC!rly indicates that it had
freezed the wait list and did not want to give effect to it.

Selection norms-Relaxation-Scope of-Held : Criteria for selection E
not to be relaxed by the authorities after the commencement of the selection
process.

Statutory construction-Rule-Every statute or statutory rule is
prospective unless it is expressly or by necessary implication made to have
retrospective effect. F
Appellant Service Commission invited applications for the post of
Assistant PRO on 17.1.1995. The selections were finalized on 2.7.1996.
Respondent no. 1 was placed in the wait list which was valid for one year.
As per existing Rule 6 of the A.P. Service Commission (Procedure) Rules, d-
Commission could select candidates from ranking list in place of those who .
relinquish the selection or who do not join duty within time and also new
requisitions sent by appointing authority; however, the Commission had
right to freeze any ranking list for reasons recorded. This Rule was
amended on 30.7.1997, stating that fall out vacancies, if any, due to
991 H
992 SUPREME COURT REPORTS. [2005] 2 S.C.R.

A relinquishment and non-joining of selected candidates shall be notified in
the next recruitment.

On 14.4.1997, competent authority had notified 14 vacancies.
Respondent No. 1 claimed that he was entitled for appointment as these
vacancies ought to be filled up by candidates from wait list. He then moved
B Tribunal by filing an original application which was disposed of with
direction to consider his appointment. Commission unsuccessfully
challenged the said direction in a Writ Petition before the High Court.

In appeal to this Court, appellant-Commission contended that un-
amended Rule 6 was applicable and the fact that the Commission had
C directed issuance of fresh advertisement indicated that the Commission
did not want the ranking list to be given effect to.

Respondent No. 1 contended that there was no material before the
Tribunal or the High Court to show that the appellant-Commission had
directed freezing of the ranking list.
D
Allowing the appeal, the Court

HELD : 1. The High Court has committed an error in holding that
the amended rule was operative: Once a process of selection starts, the
prescribed selection criteria cannot be changed. The logic behind the same
E is based on fair play. A person who did not apply because a certain criteria
e.g. minimum percentage of marks, can make a legitimate grievance, in
case the same is lowered, that he could have applied because he possessed
the said percentage. Rules regarding qualification for appointment if
amended during continuance of the process of selection do not affect the
same. That is because every statute or statutory rule is prospective unless
F it is expressly or by necessary implication made to have retrospective
effect. Unless there are words in the Statute or in the Rules showing the
intention to affect existing rights, the rule must be held to be prospective.
1999-D-FI

G P. Mahendran and Ors. v. State of Karnataka and Ors. etc., 11990) 1
SCC 411 and Gopct! Krishna Rath v. MA.A. Baig (dead) by Lrs. and Ors ..
119991 1 sec 544, relied on.

Prem Singhand Ors. v. Hm)'Gna State Electricity Board and Ors., 119961
4 SCC 319 and State of Ja11111111 and Kashmir and Ors. v. Sanjeev Kumar and
H Ors .. (2005) 2 Supreme 303, referred to.
SECY., A.P. PUBLIC SERVICE COMMISSION v. B. SWAPNA 993

2. Another aspect relevant is regarding the scope of relaxation of A
norms. Although Court must look wit.h respect upon the performance of
duties by experts in the respective fields, it cannot abdicate its functions
of ushering in a society based on rule of law. Once it is most satisfactorily
established that the Selection Committee did not have the power to relax
essential qualification, the entire process of selection so far as the selected B
candidate is concerned gets vitiated. The power to relax the norms must
be clearly spelt out and cannot otherwise be exercised.
(999-G-H; 1000-A-B)

P.K. Ramchandra Iyer and Ors. v. Union of India and Ors., (1984( SCC
141; State o/UP. v Rajiquddin and Ors., (1987( Supp SCC 401; Maharashtra C
State Road Transport Corpn. and Ors. v Rajendra Bhimrao Mandve and Ors.,
(2001) 10 SCC 51 and Dr. Krushna Chandra Sahu and Ors. v State o/Orissa
and Ors., (1995) 6 SCC 1, referred to.

3. The Commission has been given right to freeze any ranking list.
The selection from the ranking list from amongst the posts advertised was D
limited to the cases where the selected candidates had relinquished the
selection or who had not joined the duties within the ~iven time arid also
new requisitions sent by the appointing authority. The Commission did
not think it appropriate to make appointment from the new requisitions.
The fact that the Commission had directed that fresh advertisements to
be made is clearly indicative of the fact that the Commission did not want E
the new requisitions to be filled up by appointing from the ranking list in
force. The Tribunal and the High Court were therefore not justified in
holding by referring to the amended rule that the fall out vacancies were
to be filled up from the ranking list. The fall out vacancies in terms of the
amended notification were to be notified in the next recruitment. Case of p
the applicant all through has been that her claim was relatable to the 14
vacancies indented on 14.4.1997 and in particular the open category. It is
not her case that Commission had directed fresh advertisement though it
had not freezed the rank list. Jt is not disputed that there cannot be
direction for fresh advertisement unless the rank list is freezed. The
materials placed on record clearly show that before directing fresh G
advertisement, the Commission had in fact for reasons recorded directed
freezing. Unfortunately, the Tribunal did not grant adequate time to the
Commission to produce relevant records and the High Court proceeded
on erroneous premises that the amended rules applied. Therefore, looked
at from any angle, the High Court's judgment affirming Tribunal's H
994 SUPREME COURT REPORTS [2005] 2 S.C.R.

A judgment cannot be maintained. (1002-B-F[

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1775 of2005.

From the Judgment and Order dated 29.8.2003 of the Andhra Pradesh
High Court in W.P. No. 3135 of 200 I.
B Guntur Prabhakar for the Appellant.

A.Subba Rao and Mrs. D.Bharathi Reddy for the Respondents.

The Judgment of the Court was delivered by

C ARIJIT PASAYAT, J. Leave granted.

The Andhra Pradesh Public Service Commission (hereinafter referred
to as the 'Commission') calls in question legality of the judgment rendered
by a Division Bench of the Andhra Pradesh High Court affirming the judgment
of tbe Andhra Pradesh Administrative Tribunal (in short the 'Tribunal').
D The controversy involved in the present appeal arises in the following
background :

The appellant-Commission by its advertisement No. 13/94 dated
17 .1.1995 advertised for filling up 8 posts of Assistant Public Relations
Officers. Subsequently, 7 more vacancies were advertised. Therefore, the
E recruitment was made for 15 vacancies. There were 5 zones namely, Zones
I to V for which selections were to be made in the following manner :

Zone Community No. of vacancies

F oc 2

BC-B

II oc 2

G BC-B

Ill oc
BC-A

H IV oc 2
SECY., A.P. PUBLIC SERVICE COMMISSION"· B. SWAPNA [PASAYAT, J.] 995

ST

v oc 2

BC-C
B
15

The short abbreviations used above are : Open category-QC, Backward
Classes-BC and Scheduled Tribe-ST. As noted above, amongst backward
classes there were further sub-classifications i.e. BC-A, BC-B and BC-C. C,
The selections were finalised on 2. 7.1996.

According to respondent No. l (hereinafter referred to as 'applicant')
she was placed at Serial No. I in the wait list which is disputed by the
appellant-Commission. At that point of time, the Andhra Pradesh Service D ,
Commission (Procedure) Rules (in short the 'Rules') were applicable and the
existing Rule 6 was as follows :

"The ranking list prepared by the Commission for selection in a
direct recruitment shall remain in force for a period of one year from
the date on which the selection list is published on tlie Notice Board E
of the Commission or till the publication of the new selection list
whichever is earlier. The Commission may select candidates from the
ranking list in force in place of those who relinquish the selection or
who do not join duty within the time given and also new requisitions
sent by appointing authority. However, the Commission shall have
the right to freeze any ranking list for reasons recorded.'' F
The wait list was valid for a period of one year. There was amendment
to Rule 6 w.e.f. 30.7.1997 and the amended Rule reads as follows :

"The list of the candidates approved/selected by the Commission
shall be equal to the number of vacancies only including those for G
reserve communities/categories notified by the Unit Officers/
Government. The fall out vacancies if any due to relinquishment and
non-joining etc., of selected candidates shall be notified in the next
recruitment.''

H
996 SUPREME COURT REPORTS [2005] 2 S.C.R.

A According to the applicant during the period of wait list the competent
authority again notified 14 vacancies on 14.4.1997 and these vacancies ought
to have been filled up by the candidates from the wait list. She claimed that
she was entitled for appointment. The lloplic,:ant moved the Tribunal by filing
an Original Application. The same was disposed of with the following
direction:
B
"In the circumstances after hearing both sides and on perusal of the
material placed on record, the 1st respondent is directed to send the
list of the candidates selected in Zone-IV to the Government, as
indicated in the letter No. 5088/Arnn. 1-3/98 dated 11.5.1998 a copy

c of which has been marked to the Secretary, A.P. Public Service
Commission without any further delay to the 3rd respondent at any
rank within one week from the date of receipt of this order. The 3rd
respondent thereupon should examine the same and take a decision
on the appointment of the applicant respectively. The 1st respondent
should examine the list to be sent relating to Zone IV of the candidates
D selected to the post of Assistant Public Relations Officer within a
period of 3 weeks from the date of receipt of this order. The O.A. is
disposed of accordingly with the above directions at the admission
stage. No costs."

The aforesaid direction as quoted above was challenged by the
E Commission by filing a Writ Petition before the High Court. The High Court
disposed of the writ petition by directing the appellant to forward the name
of applicant-respondent No. I to the Government for appointment to the
concerned post. The High Court W!lS of the view that though the Rule was
amended w.e.f. 30.7.1997, it was applicable to the present dispute and the
F wait list was operative for the period of one year and even during that period
if any fall out vacancy has arisen and any new appointments are to be made
for fresh vacancies, they should be filled up by the candidates from the wait
list.

In support of the appeal, learned counsel for the appellant-Commission
G submitted that the High Court's approacr was clearly erroneous. It is a
conceded position that the un-amended Rule 6 was applicable to the facts of
the case. The appellant-Commission had clearly directed the Government to
advertise afresh. Though the Commission had the option to select candidates
from the rankin~ list in force in place of those who relinquish the selection
or who did not join the duty within the given time and also new requisitions
H sent by appointing authority, the Commission at the relevant point of time.
SECY, A.P. PUBLIC SERVICE COMMISSION 1·. B. SWAPNA [PASAYAT, J] 997
had the right to freeze any ranking list for reasons recorded. The fact that the A
Commission had directed issuance of fresh advertisement was clearly indicative
of the fact that the Commission did not want the ranking list to be given
effect to. This is borne out from records. In any event, there is a dispute as
to whether the applicant was at serial No. I in the wait list.·

Learned counsel for the applicant-respondent No. I on the other hand B
submitted that though it was the un-amended Rule which was applicable and
not the amended rule as was held to be applicable by the High Court, yet
there was no material before the Tribunal or the High Court to show that the
appellant-Commission had directed freezing of the ranking list. According to
him, no other person had staked any claim and even if it is conceded for the C
sake of arguments that respondent No. I-applicant was not at the top of the
ranking list, that would not make any difference because others had not
staked any claim. Her case can be considered in the peculiar facts of the case
by relaxation of norms.

There are two principles in service laws which are indisputable. Firstly, D
there cannot be appointment beyond the advertised number and secondly
norms of selection cannot be altered after the selection process has started.
In the instant case 15 posts were to be filled up. The vacancies in the different
zones were as follows :

Zone IV ST E
Zone III BC-A I

Zone V BC-C 1

Fourteen vacancies were indented on 14.4.1997. Obviously, they were F
not existing vacancies on the date of advertisement i.e. 8.1.1995. The selection
list was operative till 1.7.1997. The 14 vacancies which were indented on
14.4.1997 were as follows :

Zone III BC 'A'-1, OC-1
G
Zone IV ST-I, OC-2

Zone V BC 'C'-1, SC-I, BC 'D'-1, OC-3

Zone VI SC-I, OC-1, BC 'D'-1
H
998
-
SUPREME COURT REPORTS [2005] 2 S.C.R.

A As per amended Rule 6, ~lie fall out vacancies if any due to
relinquishment and non-joining etc. of selected candidates are to be notified
in the next recruitment.

The legal position so far as the case of existing vacancies, notified
vacancies and future vacancies has been set out by this Court in several
B decisions. In Prem Singh and Ors. v. Haryana State Electricity Board and
Ors., (1996] 4 SCC 319, in paragraphs 25 and 26 it was laid down as follows:

"25. From the above discussion of the case-law it becomes clear that
the selection process by way of requisition and advertisement can be
started for clear vacancies and also for anticipated vacancies but not
c for future vacancies. If the requisition and advertisement are for a
certain number of posts only the State cannot make more appointments
than the number of posts advertised, even though it ·might have
prepared a select list of more candidates. The State can deviate from
the advertisement and make appointments on posts falling vacant
D thereafter in exceptional circumstances only or in an emergent situation
and that too by taking a policy decision in that behalf. Even when
filling up of more posts than advertised is challenged the court may
not, while exercising its extraordinary jurisdiction, invalidate the excess
appointments and may mould the relief in such a manner as to strike
a just balance between the interest of the ~tate and the interest of
E persons seeking public employment. What relief should be granted in
such cases would depend upon the facts and circumstances of each
case.

26. In the present case, as against the 62 advertised posts the Board
made appointments on 138 posts. The selection process was started
F for 62 clear vacancies and at that time anticipated vacancies were not
taken into account. Therefore, strictly speaking, the Board was not
justified in making more than 62 appointments pursuant to the
advertisement published on 2- l l- l 991 and the selection process which
followed thereafter. But as the Board could have taken into account
G not only the actual vacancies but also vacancies which were likely to
arise because of retirement etc. by the time the selection process was
completed it would not be just and equitable to invalidate all the
appointments made on posts in excess of 62. However, the
appointments which were made against future vacancies - in this case
on posts which were newly created - must be regarded as invalid. As
H stated earlier, after the selection process had started 13 posts had
SECY., A.P. PUBLIC SERVICE COMMISSION v. B. SWAPNA [PASAYAT. J] 999

become vacant because of retirement and 12 because of deaths. The A
vacancies which were likely to arise as a result of retirement could
have been reasonably anticipated by the Board. The Board through
oversight had not taken them into consideration while a requisition
was made for filling up 62 posts. Even with respect to the appointments
made against vacancies which arose because of deaths, a lenient view B
can be taken and on consideration of expediency and equity they
need not be quashed. Therefore, in view of the special facts and
circumstances of this case we do not think it proper to invalidate the
appointments made on those 25 additional posts. But the appointments
made by the Board on posts beyond 87 are held invalid. Though the
High Court was right in the view it has taken, we modify its order to C
the aforesaid extent. These appeals are allowed accordingly. No order
as to costs."

The view was recently re-iterated in State of Jammu and Ka:;hmir and
Ors. v. Sanjeev Kumar and Ors., (2005) 2 Supreme 303.
D
The High Court has committed an error in holding that the amended
rule was operative. As has been fairly conceded by learned counsel for the
applicant-respondent No. I it was un-amended rule which was applicable.
Once a process of selection starts, the prescribed selection criteria cannot be
changed. The logic behind the same is based on fair play. A person who did
not apply because a certain criteria e.g. minimum percentage of marks can E
make a legitimate grievance, in case the same is lowered, that he could have
applied because he possessed the suid percentage. Rules regarding qualification
for appointment if amended during continuance of the process of selection do
not affect the same. That is because every statute or statutory rule is vospective
unless it is expressly or by necessary implication made to have retrospective F
effect. Unless there are words in the Statute or in the Rules showing the
intention to affect existing rights the rule must be held to be prospective. If
the Rule is expressed in a language which is fairly capable of either
interpretation it ought to be considered as prospective only. (See P. Mahendran
and Ors. v. State of Karnataka and Ors. etc., [1990] I SCC 411 and Gopal
Krishna Rath v. MA.A. Baig (dead) by Lrs. and Ors., [1999] l SCC 544). G

Another aspect which this Court has highlighted is scope for relaxation
of norms. Although Court must look with respect upon the performance of
duties by experts in the respective fields, it cannot abdicate its functions of
ushering in a society based on rule of law. Once it is most satisfactorily H
1000 SUPREME COURT REPORTS [2005] 2 S.C.R.

A established that the Selection Committee did not have the power to relax
essential qualification, the entire process of selection so far as the selected
candidate is concerned gets vitiated. In P.K. Ramchandra Iyer and Ors. v.
Union of India and Ors., [1984) 2 SCC 141 this Court held that once it is
established that there is no power to relax essential qualification, the entire
B process of selection of the candidate was in contravention of the established
nonns prescribed by advertisement. The power to relax must be clearly spelt
out and cannot otherwise be exercised.

In State of U.P. v. Rajiquddin and Ors., [l 987) Supp SCC 401, it was
inter alia, held as follows :
c "Before we close we would like to refer certain aspects which came
to our notice during the hearing of the case relating to the functioning
of the Public Service Commission, selection of candidates and their
appointment to the Judicial Service. We were distressed to find that
the Public Service Commission has been changing the norms fixed
D by it for considering the suitability of candidates at the behest of the
State Government after the declaration of results. We have noticed
that while making selection for appointment to the U.P. Judicial Service
the Commission had initially fixed 40 per cent aggregate marks and
minimum 35 per cent marks for viva voce test and on that basis it had
recommended list of 46 candidates only. Later on at the instance of
E the State Government it reduced the standard of 40 per cent marks in
aggregate to 35 per cent and on that basis it forwarded a list of 33
candidates to the government for appointment to the service. Again
at the behest of the State Government and with a view to implement
the decision of the high level committee consisting of Chief Justice,
F Chief Minister and the Chairman of the Commission forwarded name
of 37 candidates in 1974 ignoring the norms fixed by it for judging
the suitability of candidates. The Commission is an independent expert
body. It has to act in an independent manner in making the selection
on the prescribed norms. It may consult the State Government and
the High Court in prescribing the norms for judging the suitability of
G candidates if no norms are prescribed in the Rules. Once the
Commission determines the norms and makes selection on the
conclusion of the competitive examination and submits list of the
suitable candidates to the government it should not reopen the selection
by lowering down the nonns at the instance of the Government. Ifthe
practice of revising the result of competitive examination by changing
H
SECY .. AP PUBLIC SERVICE COMMISSION v. B. SWAPNA (PASAYAT. J] I 00 I

norms is followed .there will be confusion and the people· ,viii lose A
faith in the institution of Public Service Commission and the
authenticity of selection."

In Maharashtra State Road Transport Corpn. and Ors. v. Rajendra
Bhimrao Mandve and Ors., [2001] 10 SCC 51, it was held as under :
B
"It has been repeatedly held by this Court that the rules of the game,
meaning thereby, that the criteria for selection cannot be altered by
the authorities concerned in the middle or after the process of selection
has commenced. Therefore, the decision of the High Court, to the
extent it pror.ounced upon the invalidity of the circular orders dated
26.6.1996, does not merit acceptance in our hand and the same are C
set aside.''

In Dr. Krushna Chandra Sahu and Ors. v. State of Orissa and Ors.,
[ 1995] 6 SCC I, it was held as under :

"34. The Selection Committee does not even have the inherent D
jurisdiction to lay down the norms for selection nor can such power
be assumed by necessary implication. In P.K Ramachandra Iyer v.
Union of India, [1984] 2 SCC 141 it was observed (SCC pp.180-81,
para 44)

"By necessary inference, there was no such power in the ASRB E
to add to the required qualifications. If such power is claimed, it has
to be explicit and cannot be read by necessary implication for the
obvious reason that such deviation from the rules is likely to cause
irreparable and irreversible harm."

35. Similarly, in Umesh Chandra Shukla v. Union of India, [1985] F
3 SCC 721 it was observed that the Selection Committee does not
possess any inherent power to lay down its own standards in addition
to what is prescribed under the Rules. Both these decisions were
followed in Durgacharan Misra V. State ofOrissa, [1987] 4 sec 646
and the limitations of the Selection Committee were pointed out that G
it had no jurisdiction to prescribe the minimum marks which a
candidate had to secure at the viva voce.

36. It may be pointed out that rule-making function under Article 309
is legislative and not executive as was laid down by this Court in B.S.
Yadav V. State of Haryana, [1980] Supp sec 524. For this reason H
1002 SUPREME COURT REPORTS .[2005] 2 S.C.R.

A also, the Selection Committee or the. Selection Board cannot be held
to have jurisdiction to lay down any standard or basis for selection as
it would amount to legislating a rule of selection."

The Commission has been given right to freeze any ranking list. The selection
from the ranking list from amongst the posts advertised was limited to the
B cases where the selected candidates had relinquished the selection or who
had not joined the duties within the given time and also new requisitions sent
by the appointing authority. The Commission did not think it appropriate to
make appointment from the new requisitions. The fact that the Commission
---
had directed that fresh advertisements were to be made is clearly indicative
C of the fact that the Commission did not want the new requisitions were to be
filled up by appointing from the ranking list in force. The Tribunal and the
High Court were therefore not justified in holding by referring to the amended
rule that the fall out vacancies were to be filled up from the ranking list. The
fall out vacancies in tenns of the amended notification were to be notified in
the next recruitment. Case of the applicant all through has been that her claim
D was relatable to the 14 vacancies indented on 14.4.1997 and in particular the
open category. It is not her case that Commission had directed fresh
advertisement though it had not freezed the rank list. It is not disputed that
there cannot be direction for fresh advertisement unless the rank list is freezed.
The materials placed on record clearly show that before directing fresh
E advertisement, the Commission had in fact for reasons recorded directed
freezing. Unfortunately, the Tribunal did not grant adequate time to the
Commission to produce relevant records and the High Court proceeded on
erroneous premises that the amended rules applied. Therefore, looked at from
any angle, the High Court's judgment affinning Tribunal's judgment cannot
be maintained. The same is set aside. The appeal is allowed with no order as
F to costs.

D.G. Appeal allowed.