THE ASSAM PUBLIC SERVICE COMMISSION & ORS.versusPRANJAL KUMAR SARMA & ORS.

1072                      [2019]REPORTS
                SUPREME COURT    14 S.C.R. 1072             [2019] 14 S.C.R.


 A         THE ASSAM PUBLIC SERVICE COMMISSION & ORS.
                                         v.
                      PRANJAL KUMAR SARMA & ORS.
                          (Civil Appeal No.9100 of 2019)
 B                            NOVEMBER 28, 2019
                   [R.BANUMATHI, A.S. BOPANNA AND
                         HRISHIKESH ROY, JJ.]
              Assam Public Service Commission (Conduct of Business)
       Procedure, 2019: Clause 12.2 – Clause 12.2 lays down that any
 C
       proceeding in relation to interviews, selections or competitive
       examination, pending on the date of commencement of 2019
       Procedure may be continued and completed in accordance with the
       provisions of the Rules in force prior to such commencement – By
       impugned order, High Court struck down the clause holding that
 D     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 and not 2010 Rules – Held: The
       norms existing on the date when the process of selection begins,
       control the selection and the alteration to the norms would not affect
       the ongoing process unless the new Rules are to be given
 E
       retrospective effect – In the instant case, for the 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 – Clause
 F     12.2 incorporated in the 2019 Procedure 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 – Thus,
       recruitment process pursuant to the advertisement issued by the APSC
       on 21st December, 2018 must necessarily be conducted under the
 G
       selection norms as applicable on the date of the advertisement –
       Assam Public Service Commission (Procedure and Conduct of
       Business) Rules, 2010 – rr.29 and 30.


 H
                                      1072
    ASSAM PUBLIC SERVICE COMMISSION v. PRANJAL                         1073
                  KUMAR SARMA

      Allowing the appeal, the Court                                   A
       HELD: 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.       B
The screening test in which the respondents and other candidates
appeared on 30.06.2019 under the 2010 Rules 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. In this backdrop,
if the next segment of selection is to be conducted under the          C
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. If
the contention advanced by the respondents is accepted and the
next segment of the process of selection is carried out under the      D
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. If the direction in the        E
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 govern the ongoing              F
recruitment 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 Commission                G
      and Others (1990) 3 SCC 157 – relied on.
                       Case Law Reference
      [2010] 10 SCR 161          relied on            Para 13
      (1990) 3 SCC 157           relied on            Para 13
                                                                       H
1074            SUPREME COURT REPORTS                        [2019] 14 S.C.R.


 A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9100
       of 2019
            From the Judgment and Order dated 08.08.2019 of the Gauhati
       High Court at Guwahati in W.P.(C) No. 4600 of 2019
            Parthiv K. Goswami, Ms. Palak Mahajan, Rahul Pratap, Vivek
 B     Gupta, Advs. for the Appellants.
             Naleen Kohli, AAG, Mrs. Rekha Pandey, Shiv P. Pandey, Raghav
       Pandey, Ms. Smriti Kumari, Debojit Borkakati, Vivek Sonkar, Advs. for
       the Respondents.

 C           The 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 short
 D
       “APSC”) has approached this Court to challenge the judgment and order
       dated 8th 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
 E     portion of Clause 12.2, incorporated with effect from 1st 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 date
             of commencement of these Procedures may be continued
 F           and completed in accordance with the provisions of the
             Rules in force prior to such commencement.”
              3. 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
 G     Department for which, the APSC had issued an advertisement on 21st
       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
 H
     ASSAM PUBLIC SERVICE COMMISSION v. PRANJAL                               1075
          KUMAR SARMA [HRISHIKESH ROY, J.]

relevant qualification, relevant service experience etc. under Rule 29        A
and 30, in the following manner: -
      “29. 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.                           B
      30. In the viva-voce test marks shall be allocated as below:
      (i) 50% on academic/professional qualification/service experience
      relevant to the post/preferential qualification.
      (ii) 50% for subject knowledge and general bearing. Out of this,        C
      20% shall be for subject knowledge and the remaining 30% for
      general bearing.
      There shall 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.”                  D
       4. 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
                                                                              E
of the Constitution of India. During the pendency of the Writ Petition,
the 2010 Rules were repealed and a new set of procedure i.e, “The
Assam Public Service Commission (Conduct of Business) Procedure,
2019” came into effect, from 1st 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.                          F
      5. 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             G
such there was no negative marking which was introduced for the first
time by the 2019 Procedure, for the APSC conducted selections.
      6. The four respondents had offered their candidature by
responding to the advertisement dated 21st December, 2018 and they
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1076            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


 A     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
 B
       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
 C     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 16th July, 2019 by the High Court reserving the liberty to
       the writ petitioner to assail, if aggrieved, the newly formulated 2019
       Procedure.
 D            7. 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. 08th August, 2019.
 E           8. 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
 F     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
 G     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.
            9.1 Assailing the legality of the impugned judgment, Mr. Parthiv
       K. Goswami, learned counsel submits that currently the APSC, besides
 H     conducting the subject recruitment/selection for the Water Resources
     ASSAM PUBLIC SERVICE COMMISSION v. PRANJAL                              1077
          KUMAR SARMA [HRISHIKESH ROY, J.]

Department, is also undertaking selection process for the posts of, inter    A
alia, Computer Operator/Typist, Forest Ranger, Agricultural
Development Officer for which respective advertisements were issued
prior to incorporation of the 2019 Procedure and the process of selection
through screening test/written test were conducted under the 2010
Rules. Insofar as the recruitment for the 65 posts of Assistant Engineer
                                                                             B
(Civil) advertised on 21.12.2018, the learned counsel points out that the
last date for applying for the post was stipulated as 02.02.2019 and
thereafter around 6000 applicants including the four respondents,
appeared for the screening test conducted on 30.06.2019 under the 2010
Rules. Adverting to these relevant dates, the appellants would argue
that the process of selection in the present case had commenced with         C
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        D
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   E
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       F
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      G
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
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1078                SUPREME COURT REPORTS                     [2019] 14 S.C.R.


 A     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,
 B
       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
 C     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
 D     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
 E     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 Kumar1). Similarly inN.T. Devin Katti and Others vs.
 F     Karnataka Public Service Commission and Others2, 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
 G     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
       1
           (2010) 13 SCC 467
       2
 H         (1990) 3 SCC 157
     ASSAM PUBLIC SERVICE COMMISSION v. PRANJAL                               1079
          KUMAR SARMA [HRISHIKESH ROY, J.]

advertisement was issued on 21.12.2018, the 2019 Procedure (which             A
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            B
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      C
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            D
it clear that recruitment process pursuant to the advertisement issued by
the APSC on 21st 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   E
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      F
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.
       18. In view of the foregoing, we are persuaded to hold that the        G
recruitment process initiated by the APSC through the advertisement
dated 21.12.2018 for the 65 posts of Assistant Engineer (Civil), of the
Water Resources Department should be finalised under the 2010 Rules.
Consequently, the direction issued for application of the 2019 Procedure

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1080              SUPREME COURT REPORTS                    [2019] 14 S.C.R.


 A     in the impugned judgment is found to be not merited and the same is
       accordingly interfered. The appeal stands allowed by permitting the
       APSC to complete the process of selection for the advertised posts, by
       following the 2010 Rules.


 B     Devika Gujral                                            Appeal allowed.




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