WA/204/2020
2021 Latest Caselaw 504 Gua

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GAHC010197562019




                    THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)



                      Writ Appeal No.204 of 2020

                         1. The State of Arunachal Pradesh represented by the
                         Chief Secretary, Govt. of Arunachal Pradesh, Itanagar.

                         2. The Commissioner & Secretary, Personnel, Government
                         of Arunachal Pradesh, Itanagar.

                                                                  .....Writ Appellants

                                     -versus-


                      1.          Shri Biri Taha, Superintendent, O/o Chief Engineer
                      (Western Zone), Department of Hydropower Development, Jal
                      Vidyut Bhawan, Itanagar.

                      2.            Smti Jyoti Borang, Assistant (Env. & Forest), O/o.
                      The Principal Chief Conservator of Forest, Department of
                      Environment and Forest, Govt. of Arunachal Pradesh, Itanagar.

                      3.Shri Khamjat Ajang, Senior Personnel Assistant, O/o.
                      Arunachal Pradesh Public Commission, Itanagar, Arunachal
                      Pradesh- 791111.

                      4.Shri Nabam Tarang, Assistant, (Env. & Forest), O/o. The
                      Principal Chief Conservator of Forest, Department of
                      Environment and Forest, Govt. of Arunachal Pradesh, Itanagar.
                                                                    .....Respondents

5.Dorjee Wangchu, AMDO (Geo & Mines).

6.Nawang Tutan, AMDO (Geo & Mines).

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7.Tutan Wangchu, DDMO, (Geo & Mines).

8.Kesang Wangda, AMDO (Geo & Mines).

9.Phunsto Tashi, AMDO (Geo & Mines).

10.Nyarik Diyum, SI. App.

11.The Screening Committee to select the candidate to face the Viva-voce from the nominated candidates for appointment of Arunachal Pradesh Civil Services (ENTRY GRADE) by selection from the departmental candidates through lateral entry headed by its chairman.

.....Proforma Respondents

in the Writ Petition)

:: BEFORE ::

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

For the Appellants : Mr. B.D. Goswami, Addl. Advocate General, Arunachal Pradesh.

Mr. A. Chandran, Addl. Senior Government Advocate, Arunachal Pradesh.

For the Respondent Nos.1 to 4 : Mr. P.K. Tiwari, Senior Advocate.

Mr. A.R. Gogoi, Advocate.

Date of hearing of Judgment & Order : 12th February, 2021.

JUDGMENT AND ORDER (ORAL)

(Sudhanshu Dhulia, C.J.)

Heard Mr. B.D. Goswami, learned Additional Advocate General, State of Arunachal Pradesh Page No.# 3/7

for the appellants, assisted by Mr. A. Chandran, Advocate. Also heard Mr. P.K. Tiwari, learned senior counsel for the respondent nos.1 to 4, assisted by Mr. A.R. Gogoi, Advocate.

2. This writ appeal have been filed by the State of Arunachal Pradesh against the judgment and order dated 05.04.2019 passed by the learned Single Judge in Writ Petition No.241 (AP)/2017 (Shri Biri Taha & 3 Ors. -vs- State of A.P. & Ors.). The writ petition was filed by the four writ petitioners (who are the respondents in the present writ appeal). The learned Single Judge had allowed the writ petition of the petitioners and had set aside the Office Memorandum of the

Government of Arunachal Pradesh dated 28th February, 2017 (issued on 02.03.2017), inasmuch as it has prescribed a mandatory requirement of getting 45% marks in the viva-voce for selection.

3. Brief facts of the case are that in the State of Arunachal Pradesh, recruitment is made by the Arunachal Pradesh Civil Service in terms the Arunachal Pradesh Civil Service Rules, 2006 which have a statutory application, inasmuch as it has been framed under Article 309 of the Constitution of India. The method of recruitment is given in Rule 5 wherein 80% of the substantive vacancies, which occur from time to time have to be filled by way of direct recruitment and 20% of the remaining vacancies are to be filled on the basis of selection based on merit from amongst the departmental candidates nominated by the prescribed authorities on the basis of their ACRs and viva-voce test which is again to be conducted in terms of Rule 13. For ready reference, Rule 5 is quoted hereinbelow:-

"PART-III METHOD OF RECRUITMENT

5. Method of Recruitment :- (1) Save as provided under Rule 16 or sub-rule (9) of Rule 4, appointments to Entry Grade of the Service shall be made by the following methods, namely :-

(a) 80% of the substantive vacancies which occur from time to time in the authorized permanent strength of the Entry Grade of the Service shall be filled by direct recruitment in the manner specified in Part-IV of these Rules, and

(b) 20% of the posts of the entry grade will be filled up by selection on the basis of merit adjudged from amongst departmental candidates nominated by the prescribed authorities on the basis of their ACRs and viva voce test to be conducted by the Committee as constituted under Rule 13.

Provided that fractions will be rounded off to the nearest whole number with excess or deficit accounted in the next recruitment it shall be filled in the manner as specified in Part-V of these Rules.

               (2)      Academic & other qualification:
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                     (i)       For appointment against direct recruitment vacancies, the incumbent should

possess a Bachelors degree in any discipline from a recognized University.

(ii) For appointment by selection from departmental candidates, the incumbent should posses the following qualifications:-

(a) He/She should be graduate in any discipline from a recognized University.

(b) He/She should hold an appointment in the Group B (Non- Gazetted) under Government of Arunachal Pradesh in the scale of pay of Rs.5500-175-9000/- p.m. or any higher scale and

(c) He/She should have completed 8 years of service under Government of Arunachal Pradesh on the date of selection for appointment.

(d) No person will be eligible for nomination for appointment by selection from departmental candidates if he/she has attained the age of 40 years or more.

(3) Nomination by prescribed authorities for selection of departmental candidates.

On receipt of a requisition from the appointing authority, the deputy Commissioner and the Secretary to the Department shall make nomination within the prescribed time, suitable and qualified persons for selection to the entry grade of the service. The nomination of departmental candidates will be screened by a Screening Board as may be constituted by the appointing authority. A list of candidates not exceeding five or six times the number of vacancies to be filled by departmental candidates, or recommended by the Screening Board will be placed before the committee and only those candidates will be called for interview by the committee provided that no one will be eligible for nomination unless he has earned successively three very good reports in his annual confidential roll."

4. In terms of Rule 13 the Selection Committee constituted as following:-

"PART-V RECRUITMENT BY SELECTION (LATERAL ENTRY)

13. Constitution of Selection Committee:- Recruitment under sub-rule(8) of Rule 4 shall be made on the recommendations of a Selection Committee, consisting of the following members namely:-

SELECTION COMMITTEE Recruitment by selection (lateral entry) to the posts of APCS Entry Grade shall be made on the recommendations of a Selection Committee, consisting of:-

                     (1)        Chief Secretary                            ---     Chairman

                     (2)       Chairman/Member nominated by
                     Chairman of State Public Service
                     Commission                           ---           Member

                     (3)      Commissioner/Secretary of the
                     Department                             ---         Member
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                     (4)       Commissioner/Secretary of other
                     Department
                     (not connected with the work of
                     Department)                             ---    Member

                     (5)        One APST officer not below the
                     rank of secretary to the
                     Government, if none of above
                     member belong to APST                    ---   Member"

5. The admitted position here is that, presently, we are only concerned with the recruitment exercise undertaken by the Government of Arunachal Pradesh for the lateral vacancies.

6. In the present case, the vacancies which were to be filled up by way of lateral entry were admittedly 19. Although the exercise was initiated as far back as 2014 but for the reason or other,

it got postponed and ultimately the date for viva-voce was announced on 3 rd March, 2017. It is again an admitted position that for the 19 existing vacancies, the number of shortlisted candidates, including the writ petitioners (who are the respondents in the present writ appeal)

were 18 in number. No viva-voce took place on 3rd of March and the same was postponed to 22nd March, 2017. The case of the writ petitioners before the learned Single Judge was that till that time although there was a requirement of viva-voce but viva-voce was simply one of the components for judging merit criteria of the candidates. As the Rules prescribed the selection to be made on the basis of merit where the candidates had first to be nominated then their ACRs had to be examined where again viva-voce were to be a part of the selection component. None of the candidates were aware as to what are the marks earmarked for judging a candidates for viva- vice. On the date, the candidates appeared for the interview, they were apprised of the Office

Memorandum dated 28.02.2017 which was officially issued on 2 nd March, 2017, wherein it was held that in order to secure appointment a candidate must have to be secured a minimum of 45% of total marks in the interview/viva-voce. Admittedly, the Rules (Arunachal Pradesh Civil Service Rules, 2006), which we have already referred to above do not prescribe such a minimum qualifying marks for the interview. It is also an admitted position that such a condition was never implemented earlier. In fact, to the contrary what has been stated at the Bar before this Court is that the said exercise of 45% of marks in the interview was selectively put only for the 2017 interviews as this practise has been discontinued thereafter. This is so because of the reason that till 2017 in any case the selection and appointment was not within the purview of the State Public Service Commission as far as the 20% of the posts of APCS Entry Grade). After 2017, the Page No.# 6/7

selection process have been brought within the purview of Arunachal Pradesh Public Service Commission and therefore, this minimum cut-off marks in any case does not exist now.

7. Be that as it may, the fact remains that introduction of minimum 45% marks for the viva- voce was a condition which was introduced for the first time when the shortlisted candidates were on the verge of facing the interview. They had no choice but to face the interview. Now, to contend (as the learned counsel for the Government of Arunachal Pradesh would argue) that the candidates are the one who have failed to qualify in the interview. What now be permitted to challenge the Rules of the interview is a principle which cannot be invoked against the writ petitioners (who are the respondents in the present writ appeal). Mr. Tiwari would argue that it is not a case where the petitioners had all thorough knowledge of the rules of the game and with the full knowledge of the rules they participated in the exercise and then having failed to qualify are now challenging the selection process. To the contrary, this is a situation where there was never a provision for minimum cut-off marks in the viva-voce earlier. It was introduced for the first time after the exercise had already begun. Therefore, the principle of law be invoked by the learned counsel for the State of Arunachal Pradesh cannot be brought against the writ petitioners (who are the respondents in the present writ appeal) considering the peculiar facts and circumstances of the case. The learned counsel for the writ petitioners (who are the respondents in the present writ appeal) has relied upon two judgments of the Apex Court- one, in Hemani Malhotra -Vs- High Court of Delhi, reported in (2008) 7 SCC 11 and the other in K. Manjusree - Vs- State of Andhra Pradesh and Another, reported in (2008) 3 SCC 512.

8. Again, it was a case of the writ petitioners (who are the respondents in the present writ appeal) before the Apex Court in Hemani Malhotra (supra) that the condition of minimum marks in the viva-voce was not existing earlier but were introduced after the commencement of selection process. This was held to be wrong by the Hon'ble Apex Court which reads as under:-

"XXXXXXX

15. There is no manner of doubt that the authority making 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 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 Page No.# 7/7

voce test was illegal."

XXXXXXX"

Similarly, in K. Manjusree (supra), the Hon'ble Apex Court held as follows:- "XXXXXXX

27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24-7-2001 and 21-2-2002 and held that what was adopted on 30-11-2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them - P.K. Ramachandra Iyer v. Union of India, Umesh Chandra Shukla v. Union of India and Durgacharan Misra v. State of Orissa.

XXXXXXX"

9. We are of considered view therefore that the findings recorded by the learned Single Judge in the writ petition are liable to be affirmed. The Office Memorandum dated 28.02.2017 (issued on 02.03.2017) was liable to be quashed and set aside as it has rightly been done. The learned Single Judge has not interfered with the selection of candidates. As it has already been stated above, there were in total 19 vacancies, and 18 candidates, out of which 14 have already been selected. The ones who have not been selected were before the learned Single Judge and are also before us (as respondents in the present writ appeal), these private respondents have now to be given appointment on the remaining vacancies as has been already directed by the learned Single Judge. An order which we affirm.

10. In view of the observations above, the writ appeal stands dismissed.

                                 JUDGE                                        CHIEF JUSTICE

Comparing Assistant