ARUNACHAL PRADESH PUBLIC SERVICE COMMISSION & ANR.versusTAGE HABUNG & ORS

                     (2013] 2 S.C.R. 1134


A          ARUNACHAL PRADESH PUBLIC SERVICE
                  COMMISSION & ANR.
                                 v.
                     TAGE HABUNG & ORS.
                 (Civil Appeal No. 4168 of 2013)
B
                           MAY 1, 2013
            [P. SATHASIVAM AND M.Y. EQBAL, JJ.]

     ARUNACHAL   PRADESH PUBLIC       SERVICE
C COMBINED COMPETITIVE EXAMINATION RULES, 2001:

        r. 11 read with r. 12 - Fixing of minimum qualifying marks
  subsequent to the advertisement - Held: Rule does not
  mandate the Commission to fix and to disclose minimum
D qualifying marks in Preliminary Examination and Main
  Examination either in the advertisement or before conducting
  the examination - After the two examinations, Commission is
  empowered to shortlist the candidates and to summon them
  for an interview for personality and other tests - Power
E exercised by the Commission under r. 11 fixing the qualifying
  marks in the written examination in the process of conducting
  the recruitment test cannot be interfered with by the Court -
  However, the Rule does not empower the Commission to fix
  qualifying marks in viva voce test which has rightly not been
F done by it.

      The appellant State Public Service Commission
  issued an advertisement dated 25. 7 .2006 inviting
  applications through Combined Competitive Examination
  to various Group A and Group B posts under the State
G Government. Prior to completion of main examination,
  the State by 0. M. dated 7.1.2008 declared the cut-off
  marks as 33o/o or more for all subjects in each written
  examination. The Commission adopted the OM by its

H                               1134
    ARUNACHAL PRADESH PUBLIC SERVICE                 1135
        COMMISSION v. TAGE HABUNG
decision/Notification dated 16.4.2008. The Division          A
Bench of the High Court, held that OM dated 7.1.2008 and
the Notification dated 16.4.2008 could not be made
operative in the midst of continuation of the selection
process which was initiated pursuant to advertisement
dated 25.7.2006.                                             B
    In the instant appeal filed by the Commission, the
question for consideration before the Court was: whether
after commencement of recruitment process, the
appellants were justified in fixing the minimum 33%          C
qualifying marks in all the subjects in order to appear in
the viva voce test.
    Allowing the appeal, the Court
     HELD: 1.1 On perusal of r. 11 of Arunachal Pradesh 0
Public Service Combined Competitive Examination
Rules, 2001, it is manifest that the Commission reserves
its right to fix at its discretion the minimum qualifying
marks both in the Preliminary Examination and the Main
Written Examination. It empowers the Commission to fix E
minimum qualifying marks for the purpose of shortlisting
the candidates for interview. The Rule does not mandate
the Commission to fix and to disclose the minimum
qualifying marks in the Preliminary Examination and Main
Examination either in the advertisement or before
conducting the examination. After the two examinations, F
the Commission is empowered to shortlist the candidates
and to summon them for an interview for personality and
other tests. However, the Rule does not empower the
Commission to fix qualifying marks in viva voce test
which has rightly not been done by it. As per r. 12, after G
the interview the candidates will be arranged by the
Commission in order of merit as disclosed by the
aggregate marks finally awarded to each candidate in the
main examination (written examination and interview put
                                                           H
    1136   SUPREME COURT REPORTS             [2013) 2 S.C.R.

A together). [para 14 and 29] [1148-F-H; 1149-A-B; 1159-F-
    GJ
       1.2 It is now well settled that fixing the qualifying
  marks in the viva voce test after the commencement of
  the process of selection is not justified but fixing some
8
  criteria for qualifying a candidate in the written
  examination is necessary in order to shortlist the
  candidates for participating in the interview. [para 28]
  [1159-D-E]

C     A.A. Calton vs. The Director of Education & Anr. 1983
  (2) SCR 598 = AIR 1983 SC 1143; K.H. Siraj vs. High Court
  of Kera/a & Ors., 2006 (2) Suppl. SCR 790 =(2006) 6 SCC
  395; Hemani Malhotra Etc. vs. High Court of Delhi, 2008 (5)
  SCR 1066 = (2008) 7 SCC 11; and Union of India & Ors. vs.
D S. Vinodh Kumar & Ors., 2007 (10) SCR 41 = (2007) 8 SCC
  100 - referred to.
         Sushi/ Kumar Ghosh vs. State of Assam & Others 1993
    11) GLR 315 - held inap~licable.

E      1.3 Fixation of qualifying marks as 33% in the written
  examination cannot be held to be an illegal or arbitrary
  action of the Commission merely because it was notified
  in the process of conducting recruitment tests. It was
  stated on behalf of the appellant-Commission that it has
F in the past conducted written examination fixing the cut-
  off marks in exercise of power under r. 11 of 2001 Rules.
  The High Court has lost sight of the fact that pursuant to
  the directions of the Single Judge in his order dated
  30.9.2008, the result was declared applying the qualifying
G marks as notified in O.M. dated 7.1.2008 and the same was
  adopted by the Commission. [para 29] [1160-A-C]
       1.4 In the considered opinion of the Court, the power
  exercised by the Commission under r.11 of 2001 Rules,
H fixing the qualifying marks in the written examination in
     ARUNACHAL PRADESH PUBLIC SERVICE                       1137
         COMMISSION v. TAGE HABUNG
the process of conducting the recruitment test cannot be            A
interfered with by the Court. It is reiterated that there must
be some yardstick to be followed by the Commission for
the purpose of shortlisting the candidates after the
written examination. [para 29] [1159-G-H; 1160-A]
                                                                    B
     1.5 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. [para 30]
[1160-D]                                                            C·

     lnder Parkash Gupta vs. State of J&K & Others, 2004 (1)
Suppl. SCR 453      = 2004 (6) SCC 786 - referred to.
                      Case Law Reference:                           D
  1983 (2) SCR 598              referred to           para 5
  1993 11) GLR 315              held inapplicable     para 20
  2006 (2) Suppl. SCR 790 referred to                 .para 24
                                                                    E
  2008 (5) SCR 1066             referred to           para 25
  2004 (1) Suppl. SCR 453 referred to                 para 26
  2007 (10) SCR 41              referred to           para 27
                                                                    F
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4168 of 2013.

    From the Judgment and order dated 07.01.2009 of the
High Court of Guwahati, Assam in WPC No. 4902 of 2008.
                                                                    G
      Ginny J. Rautray, Kanchan Kaur Dhodi, Chetna Bhardwaj,
Avijit Bhattacharjee, Sarbani Kar, Anil Srivastav, Rituraj Biswas
for the appearing parties.

     The Judgment of the Court was delivered by
                                                                    H
    1138    SUPREME COURT REPORTS                [2013] 2 S.C.R.


A       M.Y. EQBAL, J. 1. Leave granted.

        2. This appeal is directed against the judgment and order
  dated 7th January, 2009 passed by a Division Bench of the
  Gauhati High Court on a reference made to it by the Hon'ble
  Chief Justice pursuant to the order dated 19th November, 2008
8
  of a learned Single Judge to answer the question as to whether
  the Office Memorandum dated 7th January, 2008 issued by the
  Government of Arunachal Pradesh and adopted by the
  Arunachal Pradesh Public Service Commission on 16th April,
  2008 prescribing cut-off marks of 33% or more to be secured
C in each written examination papers in the Arunachal Pradesh
  Public Service Combined Competitive Examination (Main)
  2006-07 (in short, "the Main Examination") conducted by the
  Arunachal Pradesh Public Service Commission for recruitment
  into various posts in Grade-A and Grade-B under the
D Government of Arunachal Pradesh, is permissible after
  commencement of the recruitment process and applicable to
  the candidates who already took the Main Examination initiated
  in pursuance of the advertisement dated 25th July, 2006 for
  such recruitment.
E
        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
F 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
G 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.
H
     ARUNACHAL PRADESH PUBLIC SERVICE         1139
   COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
 However, prior to the completion of the Main Examination, an          A
 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.
        4. The unqualified candidates filed a writ petition being      B
  W.P. No. 271 (AP) of 2008 on 25th July, 2008 challenging the
  decision dated 13th June, 2007 of the Commission and the
  Notification dated 11th July, 2008 publishing the list of
  candidates who had qualified in General English by securing
  40% marks. The learned Single Judge of the High Court vide           C
  order dated 30th September, 2008 while allowing the writ
  petition held that the power for fixing the minimum qualifying
  marks both in Preliminary Examination and Main Examination
  is in respect of all the subjects/papers and no power has been
  given under the provision of Rule 11 of Arunachal Pradesh            D
. Public Service Combined Civil Service Examination Rules,
  2001 to the Commission to fix a minimum qualifying marks in
  respect of a particular subject/paper. It was directed by the
  learned Single Judge that the Commission shall evaluate the
  marks secured by the candidates in all the papers/subjects of        E
  Main Examination on the basis of cut-off marks fixed by the
  State Government by way of policy decision reflected in the
  aforesaid O.M. and on the basis of evaluation of answer scripts
  of all the papers/subjects, shall call the candidates for the viva
  voce test on merit and prepare a final seniority list on merit on    F
  the basis of marks secured in the Main Examination consisting
  written and viva voce tests. In para 12 of the order, the learned
  Judge observed:-
            "The impugned decision was taken by the
      commission on 13.06.2007, i.e. after about 4(four) months        G
      from the date of conducting the preliminary examination on
      02.02.2007 and respondent commission claimed that it
      has the power to do so under the provision of rule 11 of
      the rules of 2001. Rule 11 of the aforesaid rules is quoted
      below:-                                                          H
    1140    SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A             "Candidates who obtain such minimum qualifying
              marks in the preliminary examination as may be
              fixed by the commission at their discretion shall be
              admitted to the main examination and candidates
              who obtain such minimum marks in the main
B             (written) examination as may be fixed by the
              commission at their discretion shall be summoned
              by them for an interview for personality and others
              tests"

        The rule contemplates that the commission has to fix
c       minimum qualifying marks in the preliminary examination
        and those candidates who secure the minimum qualifying
        marks shall be admitted to the main examination. The
        commission under the aforesaid rule is also required to
      . fix the minimum qualifying marks in the mains (written)
D       examination and the candidates who secure such marks
        shall be called for in the interview for personality and other
        tests (viva-voce test). The power for fixing the minimum
        qualifying marks both in the preliminary examination and
        main examination is in respect of all the subject/papers.
E       No power has been given under the provision of the
        aforesaid rule to the commission to fix a minimum
        qualifying mark in respect of a particular subject/paper.
        This rule contemplates that the commission is required to
        fix the minimum qualifying marks before it holds the
F       preliminary examination. In this case, the commission took
        the decision admittedly after the preliminary examination
        was conducted which is not at all contemplated under the
        said rule. In my considered view, the commission is not
        authorized to take the impugned decision after the
        preliminary examination was conducted i.e. long after the
G
        recruitment process had already been set in motion. It is
        immaterial whether or not the petitioners appeared in the
        main examination are fully aware of about the decision of
        the commission requiring the candidates to secure
        minimum 40% marks in General English paper, the
H
    ARUNACHAL PRADESH PUBLIC SERVICE         1141
  COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
    principle of estoppel sought to be applied by the                   A
    commission to the petitioners is not tenable under the law
    as the commission sought to implement the decision
    which is not authorized under the rules."

      5. At this stage, it is worth to mention here that another writ   B
petition being W.P. No. 101 of 2008 had been filed relating to
the appointment on the post of Veterinary Officer pursuant to
the advertisement dated 19th December, 2006 published by
the Commission. The candidates appeared in the written test
held in the month of June 2007. However, before declaring the           C
result of the written test, the Government came with a
Memorandum dated 7th January, 2008 prescribing that the
candidate must secure minimum 33% marks in each written
examination and 45% marks in aggregate to be eligible for
viva voce test. As the petitioners failed to secure 33% marks
in English subject, they were not selected for the oral interview.      D
The main contention of the petitioners' counsel was that the
selection criteria cannot be made applicable with retrospective
effect. The petitioners relied upon the decision of this Court in
A.A. Calton vs. The Director of Education & Anr., AIR 1983
SC 1143. The question that came up for consideration before             E
the High Court was whether the O.M. dated 7th January, 2008
can at all be applied. The High Court vide order dated 24th
June, 2008 held that:-

     "9. Be that as it may, the established legal position is that      F
     the amendment is always prospective. On the basis of this
     settled legal position, I hold that the additional criteria
     evolved under O.M. dated 07.01.2008 shall not be
     applicable for calling the present Writ Petitioners for viva
     voce test provided they are otherwise eligible for the             G
     interview as per the guidelines and criteria of selection
     prevailing· as on the date of advertisement, i.e. 19.12.2006.

     10. In the result, the Writ Petition stands allowed. The
     Respondents more particularly, Respondent/ No.2,
     Secretary, APPSC is directed to declare the result of the          H
    1142     SUPREME COURT REPORTS                     [2013] 2 S.C.R.


A        Writ Petitioners taking into consideration the criteria of
         selection that was applicable on or before 19.12.2006 and
         if they fulfill the criteria, they should be called for viva voce
         test."
        6. However, in compliance of Court's order dated 30th
8
  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
C 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
D results of viva voce test vide Notification dated 17th January,
  2009 pursuant to which 100 candidates were selected for the
  posts.
          7. In the above-mentioned W.P. No.417 of2008 as stated
E   above, the petitioners challenged the O.M. dated 7th January,
    2008 on the ground inter alia that the condition to secure 33%
    in each individual paper to be qualified for the viva voce test
    unreasonably restricted the right of the petitioners of being
    tested in the interview. Further case of the petitioners was that
    while in the advertisement for the Combined Competitive
F   Examination dated 25th July, 2006 there was no restriction nor
    there was any restriction in the rule, then such restriction cannot
    be imposed by the O.M. dated 7th January, 2008. The learned
    Single Judge, while hearing the writ petition (W.P. No. 417 of
    2008) felt that the issue raised can only be resolved after
G   determining the conflicting views taken in the earlier two writ
    petitions (W.P. No. 101 of 2008 and W.P. No. 271 of 2008)
    by the coordinate benches. The learned Single Judge,
    therefore, requested the Chief Justice to refer the matter to
    Division Bench. The matter was, accordingly, referred to the
H   Division Bench.
    ARUNACHAL PRADESH PUBLIC SERVICE         1143
  COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
    8. The Division Bench formulated the question as to          A
whether the Office Memorandum dated 7th January, 2008
issued by the Government of Arunachal Pradesh and adopted
by the Public Service Commission on 16th April, 2008
prescribing the cut-off marks of 33% or more to be secured in
each written examination paper in the Arunachal Pradesh          B
Service Combined Competitive Examination (Main} 2006-07
conducted by the Commission for recruitment into various posts
in Grade-A and Grade-B under the Government of Arunachal
Pradesh, is permissible after commencement of the recruitment
process and applicable to the candidates who already took the    c
Main Examination initiated in pursuance of the advertisement
dated 25th July, 2006 for such recruitment. The Division Bench
vide impugned judgment and order dated 7th January, 2009
answered the reference as under:-
    "33. From careful consideration of the e~ensive arguments    D
    so advanced on behalf of the parties narrated herein
    above and also having gone thoroughly the entire material
    available on record. It is seen that significantly the
    impugned O.M. dated 07.01.2008 was not published by
    the APPSC as required under rule 11 of the rules but it      E
    was issued by the Government of Arunachal Pradesh itself
    and the same has also only been adopted by the APPSC
    vide Notification dated 16.04.2008 and that too after
    completion of the entire selection process.
    34. Having read and considered both the impugned O.M.        F
    dated 07.01.2008 and the notification dated 16.04.2008
    which were published after the completion of the main
    examination and also having regard to the ratio laid down
    in A.A. Ca/ton's case (supra} and Sushi/ Kumar Ghosh's
    case (supra) we have no hesitation to say that the           G
    impugned O.M. dated 07.01.2008 and subsequent
    adoption of the same vide notification dated 16.04.2008
    cannot be made operative in the midst of continuation of
    selection process which has been initiated pursuant to the
    advertisement dated 25.072006.                               H
    1144    SUPREME COURT REPORTS                [2013) 2 S.C.R.


A       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
B       07.01.2008 shall not come in way of selection of the Writ
        Petitioners."

      9. Before deciding the issue, we would like to refer to the
  advertisement dated 25th July, 2006, the 2001 Rules, the O.M.
C dated 7th January, 2008 and the Notification dated 16th April,
  2008.

       10. By the advertisement dated 25th July, 2006,
  applications were invited by Arunachal Pradesh Public Service
  Commission for admission to the Combined Competitive
D Examination (Preliminary) 2006-07 for recruitment to Group A
  and Group B posts/services of the Government of Arunachal
  Pradesh. In the said advertisement, the required criteria like
  eligibility i.e. age limit, educational qualifications, physical
  standard, physical fitness and other requirements had been
E prescribed. Indisputably, there is no mention of minimum marks
  to be obtained in the Preliminary Examination for being
  qualified to appear in the Main Examination.

       11. In exercise of power conferred by the proviso to Article
  309 of the Constitution of India, the Governor of Arunachal
F Pradesh made the Rules regulating .the recruitment to certain
  posts/services, namely, Arunachal Pradesh Public Service
  Combined Competitive Examination Rules, 2001. Rule 2(a)
  defines the term 'Combined Competitive Examination' which
  means the examination conducted by the Arunachal Pradesh
G Public Service Commission for recruitment to the services and
  posts mentioned in Schedule-I and includes both the
  Preliminary Examination and the Main Examination. Rule 3 of
  the said Rules dealing with Combined Competitive Examination
  reads as under:-
H
   ARUNACHAL PRADESH PUBLIC SERVICE         1145
 COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
    "3(1) Notwithstanding anything contained in the Arunachal     A
    Pradesh Civil Service Rules, 1995 the Arunachal Pradesh
    Police Service Rules, 1989, the Arunachal Pradesh
    Labour Service Rules, 1991 and any other service Rules
    relating to services and posts mentioned in Schedule-I, the
    Commission shall hold Combined Competitive                    B
    Examination every year for selection of candidate for
    recruitment to the services in accordance with procedure
    laid down in the Schedule-II.

    (2) The Commission shall, after the main examination,         C
    prepare a merit list of candidates and forward such list to
    the Government for appointment to different services under
    the respective services Rules."

     12. Schedule-II of the Rules provides the procedure for
holding the Competitive Examination under the Arunachal           D
Pradesh Public Service Commission Examination Rules, 2001.
Rules 11 and 12 which are relevant are quoted hereinbelow:-

    "11. Candidates who obtain such minimum qualifying
    marks in the Preliminary Examination as may be fixed by       E
    the Commission at their discretion shall be admitted to the
    Main Examination, and candidates who obtain such
    minimum marks in the Main (Written) Examination as may
    be fixed by the Commission at their discretion shall be
    summoned by them for an interview for personality and
    other tests.
                                                                  F

                                             (emphasis given)

          Provided that the candidates belonging to APST
    may be summoned for an interview for a Test as stated         G
    above by the Commission by applying relaxed standard
    of less marks upto 10% if it is found by the Commission
    that sufficient number of candidates from these
    communities are not likely to be summoned for interview
    on the basis of general standard in order to fill up          H
    1146    SUPREME COURT REPORTS                    [2013] 2 S.C.R.

A       vacancies reserved for them.
               It is further provided that if inspite of relaxed standard
        sufficient number of candidates of APST Communities is
        not available the Commission may decide to raise the
B       percentage of relaxation even higher to the extent
        considered fair by the Commission if the cut-off marks of
        general standard is 55% or above.

               It is further provided that the candidates applying for
        the post of Arunachal Pradesh Service and called to the
c       interview shall be required to undergo physical standard
        test as prescribed in Appendix-Ill.

        12. After the interview the candidates will be arranged by
        the Commission in order of merit as disclosed by the
D       aggregate marks finally awarded to each candidate in the
        Main Examination (Written Examination and the Interview
        put together) and in that order so many candidates as are
        found to be qualified by the Commission at the
        Examination shall be recommended for appointment upto
E       such number as may be decided by the Commission
        keeping in view the number of vacancies.

              Provided that the candidates belonging to APST
        shall be recommended in accordance with provision of
        Govt. Order No.OM-12/20 dated 10/10/2000."
F
        13. The O.M. dated 7th January, 2008 which is relevant
    reads as under:-
             "GOVERNMENT OF ARUNACHAL PRADESH
           DEPARTMENT OF PERSONNEL, ADMINISTRATIVE
G                  REFORMS & TRAINING.
                       ADMINISTRATIVE REFORMS

        No. OM-54/2006               Dated: Itanagar, the 7th
H                                           January, 2008.
  ARUNACHAL PRADESH PUBLIC SERVICE         1147
COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
                  OFFICE MEMORANDUM                              A

   Subject:- Selection of candidates for appearing in Viva-
        Voce test on the basis of Recruitment
        Examination - procedure thereof.

  It has been brought to the notice of the Government that       B
  various appointing authorities are selecting candidates for
  viva-voce test on the basis of one or two subject of written
  examination ignoring other equally important papers and
  without following a uniform pattern. As a result, the ratio
  of candidates selected per vacancy varies from one             C
  examination to other without maintaining common practice
  on prescription of ratio or cut-off marks even the
  candidates are selected in the ratio of 1:2:3. The issue was
  under examination of the Administrative Reforms
  Department and has found that no such procedure had            D
  been laid down earlier nor such procedures have been
  prescribed in the relevant Recruitment Rules.

        After careful examination of the issue and in
  modification of point No. 2 & 3 of the OM dated                E
  28.08.2006, the Government of Arunachal Pradesh has
  decided to prescribe the following procedures for all direct
  recruitment examinations for appointment to Group-A, B
  & C posts/services under the Government of Arunachal
  Pradesh -
                                                                 F
  1) For appearing in the viva-voce test, candidates shall be
  selected in the ratio of 1:3 (meaning 3 candidates shall be
  selected for each vacancy or 3 times of the number of
  vacancies) on the basis of written examination papers.
  However, ratio of 1:3 shall not apply in case of candidates    G
  appearing the written examination is less than 3 times of
  the number of vacancies. In case of the candidates
  appearing in the written examination is less than 3 times
  of the number of vacancies, all the candidates securing
                                                                 H
    1148     SUPREME COURT REPORTS                [2013) 2 S.C.R.


A       33% of marks in each written examination papers shall be
        eligible for appearing viva-voce test.

        2) The candidates securing a minimum of 33% or more
        marks in each written examination papers and has secured
        45% of marks out of aggregate total marks in the written
B
        examination papers shall be eligible for viva-voce test. On
        the other, it will further mean that selection for viva-voce
        test shall be based on the aggregate total marks secured
        in the written examination papers and subject to ratio of
        1 :3. The candidates securing less than 33% of marks in
c       any written examination paper shall not be eligible for
        appearing in the viva-voce test.

        3) The Selection Committee or Commission may lower
        'the cut of marks' of 45% to certain extent, in case of non-
D       availability of Arunachal Pradesh Scheduled Tribes
        candidates securing the 'cut off marks'.

        Therefore, all the appointing authorities are requested to
        comply with the above guidelines while conducting
        recruitment examination for appointment to Group 'A' 'B'
E
        & 'C' level of posts/services.

                                                 (Y.D. Thongehi)
                                                  Secretary (AR)
                                Government of Arunchal Pradesh"
F
        14. On perusal of Rule 11 of Arunachal Pradesh Public
  Service Combined Competitive Examination Rules, 2001 (in
  short, "the Rule") it is manifest that the Commission reserve its
  right to fix at their discretion:the minimum qualifying marks both
G in the Preliminary Examination and the Main Written
  Examination. The Rule does not mandate the Commission to
  fix and to disclose the minimum qualifying marks in the
  Preliminary Examination. and Main Examination either in the
  advertisement or before conducting the examination. After the
H aforesaid two examinations, the Commission is empowered to
    ARUNACHAL PRADESH PUBLIC SERVICE         1149
  COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
shortlist the candidates and to summon them for an interview A
for personality and other tests. However, the Rule does not
empower the Commission to fix qualifying marks in viva voce
test which has rightly not been done by the 9ommission. As
per Rule 12, after the interview the candidates will be arranged
by the Commission in order of merit as disclosed by the B
aggregate marks finally awarded to each candidate in the main
examination (written examination .and interview put together).

    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 C
16th April, 2008 is quoted hereinbelow:-

                         "NOTIFICATION

    It is for information of all aspiring candidates that the Govt. 0
    Notification No. OM 24-2006 dated 7th January, 2008
    under which the criteria for qualifying in any written
    examination is prescribed as below is accepted and
    stands enforced for all future examinations to be conducted
    by this Commission including the written examinations E
    already conducted with immediate effect.

     1.    For appearing in the viva-voce test candidates
           shall be selected in the ratio of 1:3 (meaning 3
           candidates shall be selected for each vacancy or
           3 (three) times of the number of vacancies) on the      F
           basis of written examination papers.

           However, ratio of 1:3 shall not apply in case the
           candidates appearing the written examination is
           less than 3 times of the number of vacancies. In G
           case of the candidates appearing in the written
           examination is less than 3 (three) times of the
           number of vacancies, all the candidates securing
           33% of marks in each written examination papers
           shall be eligible for appearing viva-voce test.
                                                             H
    1150        SUPREME COURT REPORTS               [2013] 2 S.C.R.


A          2.    The candidates securing a minimum of 33% or
                 more marks in each written examination papers and
                 has secured 45% of marks out of aggregate total
                 marks in the written examination papers shall be
                 eligible for viva-voce test. On the other, it will
B                further meari that selection for viva voce test shall
                 be based on the aggregate total marks secured in
                 the written examination papers and subject to ratio
                 of 1:3. The candidates securing less than 33% of
                 marks in any of written examination paper shall not
c                be eligible for appearing in the viva-voce test.

           3.    The Selection Committee or Commission may
                 lower the 'cut-off marks' of 45% to certain extent,
                 in case of non-availability of Arunachal Pradesh
                 Scheduled Tribe candidates securing the 'cut-off
D                marks"'

                                                     Sd/- (R. Ronya)
                                                          Secretary"

E       16. In the meantime, as noticed above, the aforementioned
  O.M. dated 7th Jam1ary, 2008 issued by the State Government
  was challenged in Writ Petition No.101 of 2008 on the ground
  that the writ petitioners appeared in the written examination held
  in June 2007 in pursuance of advertisement dated 19th
  December, 2006 for the post of Veterinary Officers but were
F not selected for the interview as they could not obtain the
  qualifying marks of 33% prescribed in the said O.M. dated 7th
  January, 2008. The learned Single Judge by judgment dated
  24th June, 2008 allowed the writ petition and held that the O.M.
  dated 7th January, 2008 shall have the prospective effect and
G shall not apply to the recruitment process initiated prior to 7th
  January, 2008.

       17. On 11th July, 2008 the Commission after conclusion
  of the Main Examination published a list of candidates who had
H been found qualified in General English paper by securing 40%
    ARUNACHAL PRADESH PUBLIC SERVICE         1151
  COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
  marks. The candidates who did not secure 40% marks filed a A
  writ petition being W.P. No.271 of 2008 challenging the result
  declared on 11th July, 2008 and also the decision of the
  Commission fixing 40% marks in English subject for the
  purpose of appearing in the Main Examination. Learned Single
  Judge in terms of judgment dated 13th September, 2008 B
  allowed the writ petition and quashed the decision dated 13th
  June, 2007 and directed the Commission to evaluate the marks
  secured by the candidates in all the papers of Main
  Examination on the basis of cut-off marks fixed by the State
  Government in the O.M. dated 7th January, 2008 which                c
· subsequently got adopted by the Commission vide Notification
  dated 16th April, 2008.

     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 D
 as per the direction of the Single Judge made in Writ Petition
 No.271 of 2008.

      19. Those candidates who did not even secure 33% marks
 and whose results were not published filed a writ petition being     E
 Writ Petition No.417 of 2008 challenging the O.M. dated 7th
 January, 2008 on the ground inter alia that the condition to
 secure 33% in each individual paper to be qualified for the viva
 voce test unreasonably restricted their right for appearing in the
viva voce test. The said writ petition was ultimately referred to     F
the Division Bench for deciding the issue in view of the
 conflicting decisions taken by the coordinate benches of the
High Court in W.P.No.101 of 2008 and W.P. No.271 of 2008.
As noticed above, the Division Bench in the impugned order
relied upon the decision of this Court in Ca/ton's case (supra)       G
and its own decision in Sushi/ Kumar Ghosh vs. State of
Assam & Others, 1993 (1) GLR 315 and held that the
impugned O.M. dated 7th January, 2008 and its subsequent
adoption vide Notification dated 16th April, 2008 cannot be
made operative in the midst of the selection process which has        H
    1152     SUPREME COURT REPORTS                 [2013) 2 S.C.R.


A been initiated pursuant to the advertisement dated 25th July,
  2006. The Division Bench consequently held that the impugned
  O.M. dated 7th January, 2008 shall not come in the way of the
  writ petitioners.                                            ·

        20. Before appreciating the view taken by the Division
8
    Bench, we would like to refer the ratio decided in Ca/ton's case
    and Sushi/ Kumar Ghosh's case (supra).

       21. In Calton's case, the validity of the appointment of
  respondent No.2 as the Principal of a College which was a
C minority institution was challenged mainly on the ground that the
  power of the Director to make an appointment had been taken
  away by reason of the amendment made in the U.P.
  Intermediate Education Act. Further, the Director could not
  have appointed respondent No.2 for the post since his selection
D had been disapproved earlier by the Deputy Director. This
  Court although dismissed the appeal observed as under :-

               "5. It is no doubt true that the Act was amended by
        U.P. Act 26of1975 which came into force on August 18,
        1975 taking away the power of the Director to make an
E
        appointment under Section 16-F(4) of the Act in the case
        of minority institutions. The amending Act did not, however,
        provide expressly that the amendment in question would
        apply to pending proceedings under Section 16-F of the
        Act. Nor do we find any words in it which by necessary
F       intendment would affect such pending proceedings. The
        process of selection under Section 16-F of the Act
        commencing from the stage of calling for applications for
        a post up to the date on which the Director becomes
        entitled to make a selection under Section 16-F(4) (as it
G       stood then) is an integrated one. At every stage in that
        process certain rights are created in favour of one or the
        other of the candidates. Section 16-F of the Act cannot,
        therefore, be construed as merely a procedural provision.
        It is true that the legislature may pass laws with
H
    ARUNACHAL PRADESH PUBLIC SERVICE         1153
  COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
    retrospective effect subject to the recognised constitutional       A
    limitations. But it is equally well settled that no retrospective
    effect should be given to any statutory provision so as to
    impair or take away an existing right, unless the statute
    either expressly or by necessary implication directs that it
    should have such retrospective effect. In the instant case          B
    admittedly the proceedings for the selection had
    commenced in the year 1973 and after the Deputy Director
    had disapproved the recommendations made by the
    Selection Committee twice the Director acquired the
    jurisdiction to ma.ke an appointment from amongst the               c
    qualified candidates who had applied for the vacancy in
    question. At the instance of the appellant himself in the
    earlier writ petition filed by him the High Court had directed
    the Director to exercise that power. Although the Director
    in the present case exercised that power subsequent to              D
    August 18, 1975 on which date the amendment came into
    force, it cannot be said that the selection made by him was
    illegal since the amending law had no retrospective effect.
    It did not have any effect on the proceedings which had
    commenced prior to August 18, 1975. Such proceedings
     had to be continued in accordance with the law as it stood         E
    at the commencement of the said proceedings. We do
     not, therefore, find any substance in the contention of the
     learned counsel for the appellant that the law as amended
     by the U.P. Act 26 of 1975 should have been followed in
    the present case."                                                  F

      22. In Sushi/ Kumar Ghosh's Case, the High Court
reiterated the principles laid down in Calton's Case holding that
after the commencement of selection process if the amendment
of the rules was made prospectively changing the eligibility G
criteria, amending the rules would not affect the select!on and
appointment as the selection process which had already
commenced had to be completed in accordance with law as it
stood at the time of commencement of the selection.
                                                                        H
    1154    SUPREME COURT REPORTS                [2013] 2 S.C.R.


A       23. With due respect, in our opinion the ratio decided by
  this Court in Calton's case and reiterated in Sushi! 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
8 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
C 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
0 test.

       24. In the case of K.H. Siraj vs. High Court of Kera/a &
  Ors., (2006) 6 SCC 395, the High Court of Kerala by its
  Notification dated 26th March, 2001 invited applications for the
E appointment·to the post of Munsiff Magistrate in the Kerala
  Judicial Services. Some of the candidates were not selected
  as they had not secured the prescribed minimum marks in the
  interview. They challenged the said selection on the ground that
  in the absence of specific legislative mandate under Rule 7(i)
F of the Kerala Judicial Service Rules, 1991 prescribing cut-off
  marks in the oral examination, the fixing of separate minimum
  cut-off marks in the interview for further elimination of
  candidates after a comprehensive written test was violative of
  the statute. While answering the question, this Court held:-
G       "50. What the High Court has done by the notification dated
        26-3-2001 is to evolve a procedure to choose the best
        available talent. It cannot for a moment be stated that
        prescription of minimum pass marks for the written
        examination or for the oral examination is in any manner
H
   ARUNACHAL PRADESH PUBLIC SERVICE         1155
 COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
    irrelevant or not having any nexus to the object sought to      A
    be achieved. The merit of a candidate and his suitability
    are always assessed with reference to his performance at
    the examination and it is a well-accepted norm to adjudge
    the merit and suitability of any candidate for any service,
    whether it be the Public Service Commission (IAS, IFS,          B
    etc.) or any other. Therefore, the powers conferred by Rule
    7 fully justified the prescription of the minimum eligibility
    condition in Rule 10 of the notification dated 26-3-2001.
    The very concept of examination envisaged by Rule 7 is
    a concept justifying prescription of a minimum as               c
    benchmark for passing the same. In addition, further
    requirements are necessary for assessment of suitability
    of the candidate and that is why power is .vested in a high-
    powered body like the High Court to evolve its own
    procedure as it is the best judge in the matter. It will not    0
    be proper in any other authority to confine the High Court
    within any limits and it is, therefore, that the evolution of
    the procedure has been left to the High Court itself. When
    a high-powered constitutional authority is left with such
     power and it has evolved the procedure which is germane
    and best suited to achieve the object, it is not proper to      E
    scuttle the same as beyond its powers. Reference in this
    connection may be made to the decision of this Court in
     Union of India v. Kali Dass Batish (2006) 1 SCC 779,
    wherein an action of the Chief Justice of India was sought
    to be questioned before the High Court and it was held to       F
    be improper."
     25. In the case of Hemani Malhotra Etc. vs. High Court
of Delhi, (2008) 7 sec 11, an advertisement was made for
appointment in the Higher Judicial Service. The advertisement G
inter alia prescribed the procedure, specially in the matter of
securing 55% marks in the written examination for the general
candidates and 50% for the reserved category. The written
examination was conducted, but the result was not declared.
However, the petitioners received letter for appearing in the H
    1156    SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A interview. Since the result of the examination was not declared,
  no merit list of the successful candidates who had passed the
  written test was displayed and, therefore, the petitioners' case
  was that they were not in a position to find out the details about
  the number of candidates who were declared successful in the
s written examination. Meanwhile, the Selection Committee met
  and resolved to prescribe minimum marks for the viva voce
  test and the same was approved by the Full Court. Allowing
  the writ petitions, this Court held :-

        "15. There is no manner of doubt that the authority making
c       rules regulating the selection can prescribe by rules the
        minimum marks both for written examination and viva
        voce, but if minimum marks are not prescribed for viva
        voce before the commencement of selection process, the
        authority concerned, cannot either during the selection
D       process or after the selection process add an additional
        requirement/qualification that the candidate should also
        secure minimum marks in the interview. Therefore, this
        Court is of the opinion that prescription of minimum marks ·
        by the respondent at viva voce test was illegal.
E
       16. The contention raised by the learned counsel for the
  respondent that the decision rendered in K. Manjusree (2008)
  3 SCC 512 did not notice the decisions in Ashok Kumar Yadav
  v. State of Haryana (1985) 4 sec 417 as well as in K.H. Siraj
F v. High Court of Kera/a (2006) 6 SCC 395 and, therefore,
  should be regarded either as decision per incuriam or should
  be referred to a larger Bench for reconsideration, cannot be
  accepted. What is laid down in the decisions relied upon by
  the learned counsel for the respondent is that it is always open
G to the authority making the. rules regulating the selection to
  prescribe the minimum marks both for written examination and
  interview. The question whether introduction of the requirement
  of minimum marks for interview after the entire selection
  process was completed was valid or not, never fell for
  consideration of this Court in the decisions referred to by the
H
    ARUNACHAL PRADESH PUBLIC SERVICE         1157
  COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
learned counsel for the respondent. While deciding the case       A
of K. Manjusree the Court noticed the decisions in: (1) P.K.
Ramachandra Iyer v. Union of India; (1984) 2 SCC 141, (2)
Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721;
and (3) Durgacharan Misra v. State of Orissa, (1987) 4 SCC
646 and has thereafter laid down the proposition of law which     B
is quoted above. On the facts and in the circumstances of the
case this Court is of the opinion that the decision rendered by
this Court in K. Manjusree can neither be regarded as
judgment per incuriam nor good case is made out by the
respondent for referring the .matter to the larger Bench for      c
reconsidering the said decision."

    26. In the case of lnder Parkash Gupta vs. State of J&K
& Others 2004 (6) SCC 786, this Court held as under:-

          "28. The Jammu & Kashmir Medical Education D
    (Gazetted) Services Recruitment Rules. 1979 admittedly
    were issued under Section 124 of the Jammu and
    Kashmir Constitution which is in pari materia with Article
    309 of the Constitution of India. The said Rules are
    statutory in nature. The Public Service Commission is a E
    body created under the Constitution. Each State
    constitutes its own Public Service Commission to meet the
    constitutional requirement for the purpose of discharging
    its duties under the Constitution. Appointment to service
    in a State must be in consonance with the constitutional F
    provisions and in conformity with the autonomy and
    freedom of executive action. Section 133 of the
    Constitution imposes duty upon the State to conduct
    examination for appointment to the services of the State.
    The Public Service Commission is also required to be G
    consulted on the matters enumerated under Section 133.
    While. going through the selection process the
    Commission, however, must scrupulously follow the
    statutory rules operating in the field. It may be that for
    certain purposes, for example, for the purpose of
                                                               H
    1158    SUPREME COURT REPORTS                  [2013] 2 S.C.R.

A       shortlisting, it can lay down its own procedure. The
        Commission, however, must lay down the procedure strictly
        in consonance with the statutory rules. It cannot take any
        action which per se would be violative of the statutory rules
        or makes the same inoperative for all intent and purport.
B       Even for the purpose of shortlisting, the Commission
        cannot fix any kind of cut-off marks. {See State of Punjab
        v. Manjit Singh {2003) 11 sec 559)."
       27. In the case of Union of India & Ors. vs. S. Vinodh
  Kumar & Ors., {2007) 8 SCC 100, the appellant Railways,
C while making recruitment for the post of Gangman fixed cut-
  off marks separately for general category and reserved
  category candidates {para 3 of the judgment). However, some
  of the vacancies remained unfilled because the Railways could
  not get requisite number of candidates within the cut-off marks.
D The competent authority took a specific decision not to lower
  the cut-off marks because it was not considered to be
  conducive to general merit of candidates. The question was
  whether this decision was arbitrary in view of the fact that some
  of the vacancies remained unfilled. This Court held as under:
E
       "10.... The fact that the Railway administration intended
       to fix the cut-off marks for the purpose of filling up the
       vacancies in respect of the general category as also
       reserved category candidates is evident from the fact that '
       different cut-off marks were fixed for different categories
F
       of candidates. It is therefore not possible to accept the
       submission that the cut-off marks fixed was wholly arbitrary f
       so as to offend the principles of equality enshrined under
       Article 14 of the Constitution of India. The power of the
       employer to fix the cut-off marks is neither denied nor
G      disputed. If the cut-off marks were fixed on a rational
       basis, no exception thereto can be taken.
        11 .... Once it is held that the appellants had the requisite
       jurisdiction to fix the cut-off marks, the necessary corollary
H
    ARUNACHAL PRADESH PUBLIC SERVICE         1159
  COMMISSION v. TAGE HABUNG [M.Y. EQBAL, J.]
    thereof would be that it could not be directed to lower the A
    same. It is for the employer or the expert body to
    determine the cut-off marks. The court while exercising its
    power of judicial review would not ordinarily intermediate
    therewith. The jurisdiction of the court in this behalf is
    limited. The cut-off marks fixed will depend upon the B
    importance of the subject for the post in question. It is
    permissible to fix different cut-off marks for different
    categories of candidates. "

      28. There cannot be any dispute that the merit of a
candidate and his suitability is always assessed with reference C
to his performance at the examination. For the purpose of
adjudging the merit and suitability of a candidate, the
Commission has to fix minimum qualifying marks in the written
examination in order to qualify in the viva voce test It is now
well settled that fixing the qualifying marks in the viva voce test D
after the commencement of the process of selection is not
justified but fixing some criteria for qualifying a candidate in
the written examination is necessary in order to shortlist the
candidates for participating in the interview.
                                                                   E
      29. As noticed above, cut-off marks of 33% fixed as
 qualifying marks in all subjects for the purpose of interview
 cannot by any stretch of imagination be held illegal or unjustified
 merely because such criteria for securing minimum 33% marks
 was notified for the Preliminary Examination and Main F
 Examination. Rule 11 of Arunachal Pradesh Public Service
 Combined Civil Service Examination Rules, 2001 empowers
the Commission to fix minimum qualifying marks for the
 purpose of shortlisting the candidates for interview. In our
considered opinion, the power exercised by the Commission G
 under Rule 11 of 2001 Rules fixing the qualifying marks in the
written examination in the process of conducting the recruitment
test cannot be interfered with by this Court. We reiterate that
there must be some yardstick to be followed by the Commission
for the purpose of shortlisting the candidates after the written H
    1160     SUPREME COURT REPORTS                [2013) 2 S.C.R.


A examination. The fixation of qualifying marks as 33% in the
  written examination cannot be held to be illegal or arbitrary
  action of the Commission merely because it was notified in the
  process of conducting recruitment tests. It was argued from the
  side of the Appellant-Commission that the Commission has
a in the past conducted written examination fixing the cut-off
  marks in exercise of power under Rule 11 of 2001 Rules. The
  High Court has lost sight of the fact that pursuant to the
  directions of the learned Single Judge in his order dated 30th
  September, 2008, the result was declared applying the
c qualifying marks as notified in O.M. dated 7th January, 2008
  and the same was adopted by the Commission.

       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
D 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.
E
    R.P.                                         Appeal allowed.