Rajat Kumar Mishra And Others vs State Of Odisha And Others
2023 Latest Caselaw 6535 Ori

              HIGH COURT OF ORISSA: CUTTACK

                         W.P.(C) No.32174 of 2022
   In the matter of the application under Articles 226 and 227 of
   the Constitution of India.
                                    -----------

Rajat Kumar Mishra and Others ... Petitioners

- Versus -

State of Odisha and Others ... Opposite Parties Advocate(s) appeared in this case:-

-------------------------------------------------------------------------------

For Petitioners ... Mr. Manoj Kumar Mishra, Senior Advocate M/s. Tanmay Mishra, S. Senapati & S.S. Parida

For Opposite Parties ... Mr. Ashok Kumar Parija, Advocate General Mr. A. Behera, A.S.C.

(For O.P. No.1) Mr.P.K. Mohanty, Senior Advocate P.Mohanty, P.K. Pasayat & S.K. Sahoo (For O.P. No.2 & 3)

------------------------------------------------------------------------------- PRESENT:

THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 10.02.2023 Date of judgment : 19.05.2023

A.K. Mohapatra, J. By filing the present writ petition, the

Petitioners, who are 16 in number, have questioned the // 2 //

selection process adopted by the Odisha Public Service

Commission (in short 'OPSC') while short listing the

candidates, who had submitted their candidature pursuant to

Advertisement No.26 of 2021-22 under Annexure-1 issued

by OPSC on the principal ground that the procedure adopted

by the OPSC for second stage of selection, i.e., viva voce test

as illegal, arbitrary and dehors the rules. Moreover, they have

also prayed for quashing the merit/select (shortlisted) list

published in Notice dated 07.11.2022 by the OPSC for

documents verification and skill test under Annexure-5 by

declaring that the procedure followed by OPSC in shortlisting

the candidates for recruitment to the post of ASO is illegal.

Further, they have prayed for a direction to the Opposite

Parties to prepare the fresh merit/select list of candidates by

taking into consideration the total aggregate marks in all

subjects of the written test conducted by OPSC without

insisting upon the minimum qualifying marks in each subject.

// 3 //

2. The Petitioners have assailed the selection process

adopted by OPSC mainly on the ground that while

conducting the recruitment test, particularly the written test,

the OPSC has not followed the relevant rules while selecting

the candidates for appointment to the post of ASO and, as

such, the merit list prepared by OPSC is illegal, arbitrary and

contrary to the rules. Further, they have challenged the action

of the Opposite Parties on the ground that the same is

contrary to the extant rules, irrational and malice in law as the

fixation of minimum qualifying mark in respect of each

subject in the written test conducted by the OPSC was

introduced only after evaluation of the answer script and

without there being any provision for applying such

minimum qualifying mark subjectwise while conducting the

recruitment test by the OPSC.

3. The factual matrix involved in the present writ petition,

in a narrow compass, is that an advertisement No.26 of 2021-

2022 was published on 31.12.2021 by the OPSC inviting // 4 //

application from the eligible candidates for recruitment to the

post of Assistant Section Officer in Group-B of Odisha

Secretariat Service under Home Department. Total posts

which was advertised to be filled up were 796 posts of ASO

in the scale of pay of Rs.35,400/- in Level-9, Cell-1 as per

ORSP, Rules, 2017. Pursuant to the aforesaid advertisement

under Annexure-1, the Petitioners having eligibility criteria to

participate in the recruitment process applied for the said post

by submitting duly filled in application forms. After initial

scrutiny of the applications forms, the Petitioners were issued

with admission certificate by the Opposite Party No.3 fixing

21.08.2022 as the date for conduction of the written test.

Thereafter, on 20.08.2022, another notice was issued

postponing the written test to 27.08.2022.

4. It is apt to mention here that the recruitment to the post

of ASO as advertised under Annexure-1 is governed under

the Odisha Secretariat Service (Method of Recruitment

and Conditions of Service) Rules, 2016 (in short "the Rules, // 5 //

2016"). On analysis of the aforesaid Rules, 2016, it reveals

that Rule-4(1) provides that the recruitment in respect of

ASO as specified in Clause-(a) of Rule-3 is to be done by

means of competitive examination to be conducted by the

Commission in accordance with Rule-6. Further Rule-6

provides that the Home Department shall communicate to the

Commission the total numbers of vacancies to be filled up by

direct recruitment. Accordingly, the Home Department has

sent a communication to the OPSC intimating that 796 posts

of ASO in the Odisha Secretariat are lying vacant.

Accordingly, the recruitment process was required to be

carried out by the OPSC strictly following the provisions of

Rules, 2016.

5. Thus, at the outset, on a close scrutiny of the Rules,

2016, it appears that after receiving the vacancy position

which shall duly intimated by the administrative department

to the OPSC, the OPSC is duty bound to conduct the

recruitment test strictly in terms of the Rules, 2016. It has // 6 //

been highlighted from the side of the Petitioners that there

exists no provision in the rules which requires that a draft

copy of advertisement is to be issued by the Home

Department mentioning separate procedure other than the

procedure prescribed in the Rules, 2016 and that clarification

on such rules falls within the sole domain of the G.A.

Department as per Rule-23. On further scrutiny of the

aforesaid Rules, 2016, it appears that Rule-6(5) provides that

the scheme for such for the written examination shall be as

specified in the schedule appended to the Rules, 2016. On a

close scrutiny of the schedule attached to the rules, it is

further revealed that the same specifies the mode in which the

examination is to be conducted including the subjects for the

exam as well as the marks. The schedule further provides that

the question in the subjects in written test shall be in the

format of multiple choice questions (MCQ) carrying equal

mark. The subjects which have been prescribed in the

schedule are (1) General Awareness 100 marks (Test of // 7 //

Reasoning & Mental ability 50 Marks, Mathematics (10th

Standard Level) 50 Marks; (2) English 100 Marks; (3) Odia

100 Marks. For each correct answer the candidate would get

one mark whereas for each wrong answer, 0.25 marks shall

be deducted from the marks awarded for correct answers.

6. Rule-6(6) of the Rules, 2016 provides that only those

candidates who have been short listed after the written test

shall be called for the skill test in computer as provided in the

schedule which shall be of qualifying nature. One has to

secure at least forty percent of the total marks in the skill test

to qualify for the next stage of recruitment.

7. The dispute involved in the present writ application

revolves around the interpretation of the provisions contained

in Rule-6 of 2016 Rules which is an important provision and

which has relevance for adjudication of the dispute involved

in the present writ petition. The Rules, 2016, particularly

Rule-23 provides that if any question arises with regard to // 8 //

interpretation of these rules, the same shall be referred to the

Government in General Administration Department whose

decision shall be final.

8. The Petitioners in the present writ petition have

attacked the procedure followed by the OPSC while

conducting the recruitment process on the main plank that the

rule involved in the present case does not provide for any

qualifying mark subjectwise in the written test to be obtained

by the candidates. So also the advertisement nowhere

specifies subjectwise qualifying mark in the written test,

which is required to be obtained by a successful candidates.

Although it was not disputed by the parties that the minimum

qualifying mark, i.e., 40% mark has been fixed, so far skilled

test is concerned both in the rules as well as in the

advertisement. As a consequence of the aforesaid provisions,

it has been pleaded in the writ petition that in view of the

Rules, 2016, a candidate, who has secured higher marks in

aggregate in written examination, is to be selected and invited // 9 //

to appear in the skill test. This was also the practice which

was being followed for recruitment to the post of ASO in all

previous years. The pleadings in the writ petition further

reveals that the Opposite Parties have no scope, authority and

jurisdiction to add anything which has not been provided in

the Rules, 2016, which admittedly governs the field, so far

the recruitment to the post of ASO is concerned. Moreover,

the G.A. Department, Government of Odisha, which is the

competent authority as per the Rule-23 had not suggested any

change in the extant rule prior to the commencement of

recruitment process pursuant to advertisement under

Annexure-1.

9. In the above noted background, the written examination

was conducted through off-line mode on 27.08.2022. The

Petitioners, who have appeared in the examination along with

other eligible candidates, were expecting good results, i.e.,

they were expecting more than 250 marks in aggregate on

their own assessment. Although it was alleged that some // 10 //

question were wrong and some questions were out of the

syllabus and even some questions were set without any

correct answer/option to such questions. However, this Court

in the present writ petition is not required to go into the

correctness or validity of any question or answer that was set

by the examiners in the written test. After the written test was

conducted successfully and the answer papers were evaluated

by the examiners, the Opposite Party No.3 vide Notice dated

07.11.2022 published the provisional merit/roll list of

candidates for document verification and skilled test on

27.11.2022. Since the Petitioners did not find their names in

the merit/roll list published by the Opposite Party No.3 on

07.11.2022, some of the Petitioners and some representatives

of other candidates approached the Chairman, OPSC-

Opposite Party No.2 and lodged a complaint, inter alia,

alleging that fraud has been perpetuated while preparing the

merit list for document verification and skill test, however, // 11 //

such complaint by the Petitioners were ignored by the

Opposite Party No.2 and no action whatsoever was taken.

10. After the written test was over and the merit list was

published on 07.11.2022, there was a general dissension

among the candidates, who had participated in the written test

with regard to the procedure adopted in the recruitment

process. The OPSC on 10.11.2022 released a press note

wherein it was stated that the Commission while preparing

the provisional list of the candidates for document

verification and skilled test followed the provision stipulated

in para-6(c) of the advertisement that is "The Commission

shall be competent to fix up the qualifying marks in any or all

the subjects of the examination." Further, it was stated that in

view of such para-6(c) of the advertisement, it was within the

competence of the Commission and, accordingly, the

Commission has fixed the minimum qualifying mark for each

subject for different category of candidates in each paper.

// 12 //

11. Again another press note was published by the OPSC

on 22.11.2022 further justifying their action by referring to

para-5 of the said press note wherein it was stated that the

Commission while preparing the provisional list of

candidates for document verification and computer skill test

followed the provision stipulated under para-6(C) of the

advertisement as referred to hereinabove. Further, in para-6

of the said press note, it was mentioned that basing on

minimum qualifying marks in each subject, 2408 numbers of

candidates have come within the zone of consideration, out of

which 1104 candidates were short listed on aggregate marks

(approximately 1.5 times the advertised vacancies, category-

wise).

12. With regard to fixation of minimum qualifying mark in

each subject, it has been stated in the writ petition that no

such discretionary power has been conferred by the G.A.

Department (Competent Authority as per Rule-23) on the

OPSC. The OPSC on its own has devised and followed // 13 //

minimum qualifying mark for each subject for shortlisted

candidates. Further, there is no such provision in the

advertisement as well as in the rules with regard to fixation of

minimum qualifying mark in each subject. Such practice of

prescribing minimum qualifying mark was also not followed

in all previous orders while conducting the written test for

appointment to the post of ASO. On the whole, it was stated

that Clause-6(c) of the advertisement is completely without

jurisdiction and authority as the same having not been

provided in the rules nor the same having been authorized by

the G.A. Department under Rule-23, the OPSC has acted

contrary to the provisions of the Rules, 2016. Further, to

impress upon this Court, it was also argued that although

similar provision in the shape of Clause-6(c) was there in the

previous year advertisements, however, the same has never

been taken resort to while conducting the recruitment test.

The extant rule only provides 40% aggregate mark for skill

test, which is qualifying in nature.

// 14 //

13. Per contra, a counter affidavit has been filed on behalf

of the Opposite Parties No.2 and 3. In the counter affidavit,

the Opposite Parties No.2 and 3, at the outset, have

questioned the maintainability of the present writ petition by

referring to law of estoppel. It is stated in the counter

affidavit that clause-6(c) of the advertisement which was

published on 31.12.2021 was very much available for the

Petitioners and other eligible candidates from the beginning,

accordingly, submitted their application to participate in the

recruitment test. It has also been stated that the candidates

with their eyes while open and being aware of the provision

in the shape of clause-6(c) of the advertisement submitted

their application pursuant to advertisement dated 31.12.2021

under Annexure-1. The Petitioners also participated in the

written test held in August, 2022 without raising any kind of

protest to the inclusion of clause-6(c) in the advertisement.

However, after publication of the merit list for document

verification and for skill test on 07.11.2022, the Petitioners // 15 //

being unsuccessful candidates and on being aggrieved by said

caluse-6(c) of the advertisement have approached this Court

by filing the present writ petition. Therefore, it has been

stated in the counter affidavit that having participated in the

selection process while being aware of the provision of

clause-6(c) in the advertisement, the Petitioners are estopped

from challenging the same after publication of the result for

the first phase of the recruitment process.

14. The next question that was raised in the counter

affidavit is non-joinder of necessary party. In the said

context, it is stated in the counter affidavit that the Petitioners

essentially seek for a direction to redraw the select list

already prepared and published by the OPSC, however, none

of the candidates from the select list dated 07.11.2022 have

been arrayed as party even though their selection is under

challenge. As such, the writ petition deserves to be dismissed

at the threshold for non-joinder of necessary parties.

// 16 //

15. On merits of the matter, it has been stated in the counter

affidavit that the writ petition is liable to be dismissed on the

following grounds:-

(a) Rule-6(6) of the Rules, 2016 mandates the OPSC

to short list candidates on the basis of the written

test.

(b) Rule-6 does not prescribe any method of short

listing of candidates. It is within the discretion of

the OPSC to choose the method of short listing.

(c) The method of short listing is a policy decision of

the employer. The prescription of minimum

qualifying marks in each of the subjects in the

written test is a fair, reasonable and universally

accepted method of short listing.

(d) Even otherwise, the Home Department vide its

letter No.30965 dated 02.09.2021, which is in the

nature of executive instructions, under Article 162 // 17 //

of the Constitution of India, empowers the OPSC

to prescribe the minimum qualifying marks in all

or any of the subject of the written test.

16. The counter affidavit further reveals that the

recruitment to the post of ASO is covered and regulated by

the Rules, 2016, which has been referred to in the preceding

paragraph.

17. Rule-6(1) of Rules, 2016 prescribes that the direct

recruitment to the post of ASO shall be made through

competitive examination to be conducted by the OPSC.

Further, referring to Rule-6(5) of the Rules, 2016, it has been

stated that the examination would be conducted in

accordance with the syllabus prescribed in the schedule. The

schedule appended to the Rules prescribes for a written test

consisting of the following subjects:-

     (a)     General Awareness;

     (b)     Test of Reasoning & Mental ability;
                              // 18 //

(c) Mathematics (10th Standard Level);

(d) English; and

(e) Odia

On the basis of the syllabus prescribed in the schedule

appended to the rules and on the basis of written test under

Rule-6, the OPSC was required to shortlist candidates for a

skill test in computer which shall only be qualifying in

nature. For better understanding the Rules, the Rule-6(6) of

the Rules, 2016 has been extracted herein below:-

"Rule-6(6) - only those candidates who have been short

listed after the written test shall be called for the skill test in

computer as provided in the schedule which shall be of

qualifying nature. One has to secure at least forty percent of

the total marks in the skill test to qualify it."

18. By referring to the aforesaid rule-6(6), the Opposite

Parties No.2 and 3 in their counter affidavit have led

emphasis on the words "short listed". Moreover, it has also // 19 //

been stated that since the rule does not prescribed any method

of short listing on the basis of the written test, it was

presumed that the same has been left to the discretion of the

OPSC. Accordingly, it has been stated in the counter affidavit

that keeping in view the fact that large number of candidates,

i.e., 150000 who had appeared in the written test, the OPSC

in its discretion devised the mechanism for short listing and

followed the procedure of minimum qualifying mark for each

subject and, accordingly, candidates were short listed and the

merit list was prepared and published for document

verification and for skill test. Thus, it has been stated that the

Opposite Parties No.2 and 3 have not committed any

illegality at all while conducting the recruitment test for

appointment to the post of ASO and while prescribing

minimum qualifying mark subjectwise pursuant to Clause-

6(c) of the advertisement. Therefore, the writ petition is

devoid of merit and the same deserves to be dismissed at the

threshold.

// 20 //

19. Heard Mr. Manoj Kumar Mishra, learned Senior

Counsel along with Mr. S. Senapati, learned counsel

appearing for the Petitioners and Mr. Ashok Kumar Parija,

learned Advocate General along with Mr. P.K. Mohanty,

learned Senior Counsel and A. Behera, learned Additional

Standing Counsel appearing for the Opposite Parties. Mr.

Ashok Kumar Parija, learned Advocate General advanced

his argument for the State-Opposite Parties as well as for the

Odisha Public Service Commission. Perused the pleadings of

the respective parties as well as their notes of submission and

the citations relied upon by each side.

20. Mr. Manoj Kumar Mishra, learned Senior Counsel

appearing for the Petitioners, at the outset, submitted that the

OSS Rules, 2016 does not provide for fixation of any

minimum qualifying mark subjectwise. Although Rule-6(6)

of the Rules, 2016 provides aggregate of 40% mark required

to qualify in the skill test. It is further contended by Mr.

Mishra that the written test is conducted to testify the // 21 //

candidates academic knowledge whereas interview/viva voce

is the best mode of assessing the suitability of the candidates.

In the aforesaid context, learned Senior Counsel for the

Petitioners referred to the judgment of the Hon'ble Supreme

Court in K.H. Siraj vs. High Court of Kerala and Others,

reported in (2006) 6 SCC 395, to submit before this Court

that the interview is the best mode of assessing the suitability

of candidate for a particular position. The written

examination will testify the candidate's academic knowledge.

As such, he submitted that the written test is only to assess

the overall knowledge in all subjects, for which, no specific

percentage has been provided in the rules deliberately while

framing the rules and the same was also not the practice so

far the recruitment examination of the previous years for

appointment to the post of ASOs are concerned.

21. It was also contended on behalf of the Petitioner that it

is evident from bare reading of the Rules, 2016 that since

there was negative mark in the written test, the rule making // 22 //

authority in their wisdom while fixing minimum qualifying

mark for skill test have not provided for any minimum

qualifying marks for the subject wise written test as provided

in the schedule to the Rules, 2016. Further, the OPSC being

the Examination Conducting Body/Authority and the Home

Department having no jurisdiction to go beyond the rules and

prescribe/substitute any of the rules contained under the 2016

Rules on their own, such conduct on the part of two

authorities are beyond their competence in view of Rule-23.

22. Rule-23 specifically provides that it is G.A. Department

of the Government of Odisha, which is the competent

authority to interpret the rules and issue any executive

instruction in connection with the 2016 Rules. Further, the

same having not been done by the G.A. Department in the

present case, the OPSC as well as the Home Department are

not competent to prescribe minimum qualifying mark

subjectwise by going against 2016 Rules. In the aforesaid

context, with regard to jurisdiction of a particular department, // 23 //

learned counsel for the Petitioner referred to the judgment of

Hon'ble Supreme Court in Goa Public Service Commission

v. Pankaj Rane and Others, reported in 2022 SCC OnLine

SC 440.

23. Mr. Mishra, learned Senior Counsel further argues that

the ratio laid down in Goa Public Service Commission's case

(supra) squarely applies to the facts of the present case.

Accordingly, he specifically relied upon paragraphs-3, 13, 14

to 16, 19 to 26. The relevant paragraphs have been quoted

herein below:-

"3. Respondent Nos. 1 to 3 filed writ petition on 22.07.2017. By the impugned judgment, the High Court has allowed the writ petition and has ordered as follows:

"24. We note that in the affidavit in reply, not obtaining minimum qualifying marks in oral interview pursuant to the decision in the meeting dated 16 May 2017 is the sole reason not to send the names of the Petitioners to the Respondent- State. No other reason than the qualifying marks at the interview is shown to us.

25. In these circumstances, we hold that the action of the Respondent No. 1-Commission is not recommending the names of the Petitioners to // 24 //

the post of Junior Scale Officer of the Goa Civil Services on the ground that they have not secured 65% minimum qualifying marks in the oral interview, is illegal and beyond the powers of the Respondent No. 1-Commission. The decision taken by Respondent No. 1-Commission in the meeting dated 16 May 2017 introducing criteria of 65% minimum qualifying marks at the interview for the post of Junior Scale Officer in the Goa Civil Service, therefore, cannot be sustained and it is quashed and set aside. The Respondent No. 1-Commission will take necessary steps as per Rule 12 of the Rules of 2016 on the basis of the consolidated marks of the Petitioners in the written examination and oral interview without attaching any qualifying criteria to the marks obtained at the oral interview. The Respondent No. 1- Commission will take necessary steps within eight weeks from the date the order is uploaded to the server."

13. If we notice Rule 10 to begin with, Rule 10 reads as follows:

"10. Competitive examination for direct recruitment. - (1) The Competitive Examination for direct recruitment shall comprise a written examination and an Oral Interview. The Competitive Examination shall be conducted by the Commission, in the manner notified by the Government, from time to time:

Provided whenever the Goa Public Service Commission is of opinion of conducting screening test required for shortlisting of candidates, the same should be conducted by the // 25 //

Commission in a manner decided by the Commission from time to time.

(2) Whenever Competitive written examination for the direct recruitment to the Junior Scale post of Service is conducted by the Commission, the results of such written examination shall be declared by the Commission by displaying the same prominently on the notice board and website of the Commission.

(3) The minimum passing percentage for competitive written examination shall be 65 percent of the total marks, the passing percentage for candidates belonging to Scheduled Castes and Scheduled Tribes shall be minimum 55 percent of the total marks and Other Backward Class, Differently Abled Persons and for Children of Freedom Fighters, it shall be minimum 60 percent of the total marks.

(4) The Commission shall invite five times the number of candidates as against the number of vacancies advertised, for the oral interview purely on merit with due regard to the policy on reservation. In case there are more candidates securing the same number of marks as the last candidate, all such candidates shall also be called for the oral interview.

(5) Marks to be allotted for written examination and oral interview shall be notified in advance in the advertisement inviting applications by the Commission.

(6) Such oral interview shall be conducted under CCTV surveillance or videography and the proceedings thereof shall also be video recorded // 26 //

and such recording shall form a permanent record of the Commission."

"14. We may also advert to Rule 12:

"12. List of successful candidates. - (1) The Commission shall forward to the Government a select list, arranged in the order of merit of the candidates which shall be determined in accordance with the aggregate marks obtained by each candidate at the competitive written examination and oral interview:

Provided that if two or more candidates have secured equal number of marks in the aggregate, their order of merit shall be in the order of the marks secured by the candidates in the written examination and if the candidates have secured equal marks in the written examination then order of merit shall be as per their date of birth and if in case the date of birth is also the same then the candidate possessing higher educational qualifications will be placed higher in the merit list.

(2) The Commission while drawing the list of selected candidates shall restrict the select list of candidates to the extent of declared number of vacancies.

(3) The select list drawn by the Commission shall be valid for a period of one year from the date of receipt of the same by the Government.

(4) The Commission shall, in addition to the select list, also prepare a separate wait list up to 10 % of the vacancies based on the merit of the candidates in their respective category:

// 27 //

Provided further that the candidates from the wait list may be recommended to the Government only on requisition being made by the Government if the candidates recommended earlier are unable to accept the offer of appointment for any reason. Such wait list shall not be operative for any additional number of posts, other than those advertised. The wait list shall lapse on the declaration of the date of a subsequent examination for the same category or after a period of one year from the date of preparation of such wait list, whichever is earlier."

"15. Rule 10 contemplates the holding of a competitive examination and oral interview. The competitive examination is to be conducted by the appellant in the manner notified by the Government from time to time as pointed out by Mr. Vinay Navare, learned senior counsel. The proviso provides the appellant with the power to hold a screening test required for shortlisting of candidates. The manner in which it is to be held is a matter to be decided by the Commission from time to time. It is most pertinent to note that Rule 10(3) specifically declares that a candidate must obtain a minimum passing percentage in the competitive written examination. It is pegged at 65 per cent of the total marks. The percentage is purportedly reduced in the case of certain categories."

"16. Next, we must notice that Rule 10(5) declares the marks to be allotted for written examination and oral interview is to be notified in the advertisement inviting the applications by // 28 //

the Commission. Here, as Mr. Pratap Venugopal, learned counsel, rightly points out the Commission cannot be found to have acted contrary to the Rules insofar as, the Commission has, in the advertisement, declared the marks to be allotted for the written examination and oral interview. What is conspicuous by its absence in Rule 10 is any minimum to be obtained by any candidate in the interview. The matter does not end here."

"19. We may notice in P. K. Ramachandra Iyer (supra), the following:

"43. The relevant rules are Rules 13 and 14 of the Rules, which may be extracted:

"13.Candidates who obtain such minimum marks in the written examination as may be fixed by the Board in their discretion shall be summoned by them for viva voce.

14. After the examination, the candidates will be arranged by the Board in the order of merit in each category (professional subjectwise) as disclosed by the aggregate marks finally awarded to such candidates and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination."

44. Mr Ramachandran, learned counsel for the petitioner contended that Rule 13 does not envisage obtaining of minimum marks at the viva voce test even though it contemplates obtaining minimum marks at the written test so as to be // 29 //

eligible for being called for viva voce test. It was further urged that Rule 14 specified the manner in which merit list is to be arranged. Rule 14 provides that after both written and viva voce tests are held, the candidates will be arranged by the Board in the order of merit in each category (professional subjectwise) as disclosed by the aggregate marks finally awarded to each candidate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. On a combined reading of Rules 13 and 14, two things emerge. It is open to the Board to prescribe minimum marks which the candidates must obtain at the written test before becoming eligible for viva voce test. After the candidate obtains minimum marks or more at the written test and he becomes eligible for being called for viva voce test, he has to appear at the viva voce test. Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further // 30 //

qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the rules. By necessary inference, there was no such power in the ASRB to add to the required qualifications If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. It however does not appear in the facts of the case before us that because of an allocation of 100 marks for viva voce test, the result has been unduly affected. We say so for want of adequate material on the record. In this background we are not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written test. But the ASRB in prescribing minimum 40 marks for being qualified for viva voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks at the viva // 31 //

voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to rules and the merit list prepared in contravention of rules cannot be sustained. "20. We must next notice Durgacharan Misra (supra):

"6. Rules 16, 17, 18 and 19 are the relevant rules which have a material bearing on the question that falls for determination. These rules read as under:

"16. The Commission shall summon for the viva voce test all candidates who have secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be 30 per cent of the total marks in all the papers:

Provided that government may after consultation with the High Court and Commission fix higher qualifying marks in any or all of the subjects in the written examination in respect of any particular recruitment.

17. The Chief Justice or any of the other Judges of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test and advise the Commission on the fitness of candidates at the viva voce test from the point of view of their possession of the special qualities required in the judicial service, but shall not be responsible for selection of candidates.

// 32 //

18. The marks obtained at the viva voce test shall be added to the marks obtained in the written examination. The names of candidates will then be arranged by the Commission in order of merit. If two or more candidates obtain equal marks in the aggregate, the order shall be determined in accordance with the marks, secured at the written examination. Should the marks secured at the written examination of the candidate concerned be also equal, then the order shall be decided in accordance with the total number of marks obtained in the optional papers.

19. (1) The Commission shall then forward to the government in the Law Department the list of candidates prepared in accordance with Rule 18 indicating therein whether a candidate belongs to Scheduled Caste or Scheduled Tribes. (2) The list prepared shall be published by the Commission for general information.

(3) The list, unless the Governor in consultation with the High Court otherwise decides, shall ordinarily be in force for one year from the date of its preparation by the Commission."

7. The rule-making authorities have provided a scheme for selection of candidates for appointment to judicial posts. Rules 16 prescribes the minimum qualifying marks to be secured by candidates in the written examination. It is 30 per cent of the total marks in all the papers. The candidates who have secured more than that minimum would alone be called for viva voce test. The Rules do not prescribe any such minimum marks to be secured at the viva voce test. After the viva voce test, the // 33 //

Commission shall add the marks of the viva voce test to the marks in the written examination. There then, Rule 18 states:

"The names of candidates will then be arranged by the Commission in the order of merit".

11. In the light of these decisions the conclusion is inevitable that the Commission in the instant case also has no power to prescribe the minimum standard at viva voce test for determining the suitability of candidates for appointment as Munsifs.

15. The Rules have been framed under the proviso to Article 309 read with the Article 234 of the Constitution. Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State. It shall be in accordance with the Rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court. The Rules in question have been made after consultation with the Commission and the State High Court. The Commission which has been constituted under the Rules must, therefore faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would, therefore, be illegal and without authority.

// 34 //

"21. A question may arise whether the Public Service Commission can depart from the Rules in this regard. Light is shed by the views expressed by this Court in Manjit Singh and Others (supra). We may refer to the following exposition made by this Court.

"9.

.................................................................. ..................................................................

Where no special qualification or any prescribed standard of efficiency over and above the eligibility criteria is provided by the Rules or the State, it would not be for the Commission to impose any extra qualification/standard supposedly for maintaining minimum efficiency which, it thinks, may be necessary.

................................................................... ...................................................................

10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than the required number of candidates may obtain marks above the cut-off marks, say for example, out of 10,000 if 8000 or 6000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 // 35 //

candidates need be called. If that is so, any candidate who is otherwise eligible up to the 500th position, whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut- off marks.

11. In the case in hand, it was not for the Commission to have fixed any cut-off marks in respect of the reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up-to- the-mark merit as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the // 36 //

State Government. It cannot impose its own policy decision in a matter beyond its purview."

22. In this regard, we must notice that in the facts of this case of the 1866 candidates who appeared in the screening test / computer test, only 7 candidates which included respondent Nos. 1 to 3 cleared the test. The number stood further reduced to 4 and which again included respondents Nos. 1 to 3. Therefore, when the question arose as to how the interview should be conducted, the Commission decided on 16.05.2017 to fix 26 marks out of 40 as cut off marks. It no doubt works out at 60 per cent of the total marks in the interview segment. Rules did not provide for a separate minimum for the interview. The advertisement did not provide for a separate minimum in the interview. It is almost a week before the interview that the Commission took the decision in this regard. We have stated these facts only to highlight that this is not a case where the Commission was faced with the task of having to interview a very large number of candidates. For 6 unreserved posts and 5 reserved posts finally, only 4 emerged as candidates to be dealt with at the final stage viz., the oral interview. This, therefore, is distinguishable, in other words, from the judgment relied upon by Mr. Pratap Venugopal, learned counsel for the appellant viz. M.P. Public Service Commission (supra). That was a case where this Court noted that the appellant Commission therein noting the large number of applications received from the General Category candidates against four posts decided to call only 71 applicants who had 7 years of practice // 37 //

although 188 applicants were eligible, in view of the fact that under Section 8(3)(c) of the provisions applicable in the said case, five years of practice as an Advocate or pleader of Madhya Pradesh was a minimum requirement. It was therefore, a case which though relied upon by the appellant is distinguishable on facts. This is apart from noticing that the appellant has not been able to inform the Court as to whether there was a Rule in the said case similar to Rule 12 as present in this case. As far as Yogesh Yadav (supra) is concerned, this again is not a case which involved a Rule resembling Rule 12 of the Rules. We further may also notice that in the said case recruitment was carried out by the employer itself and it was not done by the recruiting body which the appellant is and which is limited by statutory rules made under Article 309 of the constitution."

23. Para 13 of Yogesh Yadav (supra) is extracted hereinbelow:

"13. The instant case is not a case where no minimum marks are prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in the written test would qualify for the interview. The entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process.

// 38 //

After conducting the interview, marks of the written test and viva voce were to be added. However, since a benchmark was not stipulated for giving the appointment. What is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does not amount to changing the "rules of the game". The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. The fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case [Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] ."

"24. Though learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case."

25. In other words, we would think that in the facts of this case, they are closer to the facts of the case in P. K. Ramachandra Iyer case and // 39 //

judgment following the same which we have already noted. As far as Tej Prakash Pathak and Others case is concerned, it again did not specifically involve a Rule similar to Rule 12."

26. It is true that there is a distinction in the facts with those of the case in K. Manjusree (supra). We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) for the reasons which we have already indicated."

24. In view of the law laid down by the Hon'ble Supreme

Court in Goa Public Service Commission's case (supra)

which has been specifically quoted hereinabove, learned

Senior Counsel appearing for the Petitioners contended before

this Court that the Home Department and OPSC have no

jurisdiction to interpret the rule and to act according to their

own sweet will without the approval of G.A. Department as // 40 //

provide in Rule-23. He also contended before this Court that

there can be no discretionary power to be used unless same is

specifically provided for in the rule or by the competent

authority (in the present case) G.A. Department under

Rule-23 by way of executive instruction. Therefore, the

discretion which has been exercised by the OPSC in changing

the procedure is to be exercised in a fair manner that too

much before the examination process commences. This is

only with the intention to put the candidate on notice with

regard to process of the examination so that the candidates

appearing in the written test is not taken by surprise or the

result of such examination would not be published by

following a different procedure without first putting such

candidates on notice and putting the results by following

yardstick to the disadvantage of the candidates. Furthermore,

unless the process of examination is intimated to the

candidates there is every likelihood that they may not perform

their best keeping in view the yardstick to be followed while // 41 //

evaluating their answer script. It was also argued that the

discretion, if any, cannot be exercised unscrupulously,

clandestinely and arbitrarily. Adopting such a methodology

while conducting the written examination would definitely

affect the fairness and transparency of the entire written

examination conducted by the OPSC.

25. It was also contended by the learned Senior Counsel

appearing for the Petitioner that in the advertisement there is

no mention with regard to fixing of qualifying marks

subjectwise, which is required to be secured by the candidates

in the written examination to qualify for the skill test. It was

also contended that in the event any minimum qualifying

mark is required to be fixed in any written test, then the

examining body like the OPSC are duty bound to intimate the

same to the candidates well in advance before the candidates

enters into the examination hall. In the aforesaid context, Mr.

Mishra, learned Senior Counsel appearing for the Petitioners

submitted that the rules of the game cannot be changed after // 42 //

the game is started which is a widely accepted proposition of

law, so far the service jurisprudence is concerned. In this

regard, learned Senior Counsel for the Petitioners referred to

the judgment of the Hon'ble Supreme Court in K. Manjusree

v. State of Andhra Pradesh and Another, reported in (2008)

3 SCC 512. In course of his argument, he specifically referred

to para-17, 18, 25 to 27 of the judgment. The aforesaid

paragraphs have been quoted herein below :-

"17. On the contentions urged, the following questions arise for consideration :

(i) What was the procedure (method and manner of selection) prescribed by the Administrative committee for filling the posts advertised on 28.5.2004?

(ii) Whether the list prepared by the Interview Committee and approved by the Administrative committee suffered from any error, irregularity or illegality?

(iii) Whether the procedure adopted by the Full Court in preparing the fresh selection list by applying the requirement of minimum marks for interview also, is legal and valid ?

Re : Question (i)

18. The Rules did not prescribe any procedure for selection. When the posts were advertised, the // 43 //

only criterion for selection that was mentioned was that the selection will be by holding a written examination followed by an interview. The manner of holding written examinations and interviews, the marks for written examination and interview, whether the candidates should secure any minimum marks in the written examination and/or interview, were all yet to be decided."

"25. When the Administrative Committee placed the merit lists and Selection List before Full Court, apparently objections were raised on two grounds. One related to the failure to provide the minimum of 50%, 40% and 35% marks for interviews, on the interpretation of resolution dated 30.11.2004 read with earlier resolutions dated 24.7.2001 and 21.2.2002. The second objection was that even though the Administrative Committee had resolved that the marks for written examination would be 75 and interview would be 25, at the time of tabulating the marks, the marks secured (out of 100 marks) in the written examination had been taken into account without scaling it down with reference to a maximum of 75 marks. The Full Court therefore, appointed a Sub-Committee of two Judges to examine the matter and prepare a fresh merit list and selection list. The Sub-Committee examined the matter and submitted a revised merit list by incorporating two changes. Firstly, while tabulating the marks, it scaled down the marks secured by the candidates in the written examination with reference to a maximum of 100 marks, in proportion to a maximum of 75 marks so that the final marks were with reference to a // 44 //

base of 75 marks for written examination and 25 marks for interview as resolved on 30.11.2004. Secondly, it applied the minimum percentage of 50%, 40% and 35% for OC, BC, SC/ST even in regard to interviews and consequently, eliminated those who secured less than the minimum in the interview from the process of selection. The final selection list was prepared with reference to the fresh merit list prepared by incorporating the said two changes.

26. As far as the first change is concerned, we have already held that scaling down in unexceptional as it is in consonance with the criteria decided by the Administrative Committee on 30.11.2004 before commencing the selection process.

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 m arks 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 // 45 //

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 India1, Umesh Chandra Shukla v. Union of India2, and Durgacharan Misra v. State of Orissa3."

26. So far the present case is concerned, it was contended

by the learned Senior Counsel appearing for the Petitioners

that the minimum mark that was fixed subjectwise was fixed

after evaluation of the answer script which has been

specifically admitted by the Opposite Parties No.2 and 3 in

their counter affidavit at Para-13. In view of such admitted

fact that the minimum qualifying mark for subjectwise

qualification was introduced after written test was over is not

permissible in law as the OPSC being the examination

conducting body should not have resorted to such a practice.

He further submitted that such fixation of subjectwise

minimum qualifying mark is also not supported by the Rules,

2016.

// 46 //

27. Conversely, learned Advocate General appearing on

behalf of the Opposite Parties, at the outset, submitted that the

clause-6(c) of the advertisement confers power on the OPSC

to prescribe minimum qualifying mark in each subject. He

further contended that the Petitioners participated in the

recruitment process and, accordingly, appeared in the written

examination having knowledge about the provision contained

in clause-6(c) of the advertisement. Therefore, it was argued

by the learned Advocate General that now at this belated

stage and having participated in the recruitment process, it is

no more open to the Petitioners to turn back and complain

that they were not aware of fixation of subjectwise minimum

qualifying mark which was well within the discretion of the

OPSC. Furthermore, the OPSC being the examining body and

in view of the provision contained in clause-6(c) of the

advertisement under Annexure-1, the OPSC was competent to

fix such minimum qualifying mark subjectwise. Therefore,

the Opposite Parties have not committed any illegality in // 47 //

fixing minimum qualifying mark and short listing the

candidates by applying the minimum qualifying mark for

each subject while preparing the select list for document

verification and for the skill test.

28. Mr. A.K. Parija, learned Advocate General appearing

for the Opposite Parties also contended that the rules does not

prescribe any specific method for short listing of the

candidates on the basis of the written test. Moreover, the

method of short listing has been devised by the OPSC which

is within their discretion. Accordingly, the OPSC, which is an

expert body having vast experience in conducting such

recruitment test, in exercise of the power under clause-6(c) of

the advertisement has prescribed the minimum qualifying

mark for each subject for the convenience in shortlisting of

candidates. It was also argued that considering the fact that a

large number of candidates participated in the written test, it

was incumbent upon the OPSC to devise a suitable

mechanism and by adopting such mechanism they were // 48 //

required to decide the number of candidates required to be

shortlisted for skill test. He further contended that it is not the

case of the Petitioners that they have been discriminated

against while applying the minimum qualifying mark

subjectwise rather same has been applied uniformly to all the

candidates who had participated in the written test conducted

by the OPSC.

29. It was further contended that there are two methods

which are usually adopted for short listing of the candidates.

Firstly, shortlisting is done by selecting candidates equal to

1.5 times of the number of vacancies on the basis of the

aggregate of the total marks in the written test. Secondly,

another method of short listing is adopted i.e. to select

candidates who had secured minimum mark in each of the

papers they appeared in the written test. He further contended

that neither of the two methods having been expressly

provided in Rule-6(6) of the Rules, 2016, it is to be construed

that the method of short listing has been left to the discretion // 49 //

of the OPSC to choose the method of short listing of

candidates after the written test provided such method should

be non-arbitrary and non-discriminatory and fair in nature.

30. So far the recruitment test of the previous years are

concerned, it was contended that the first method was adopted

by the OPSC. From the experience of the OPSC it was

realized that such a procedure contains a flaw in it inasmuch

as the candidates who have secured very high marks in two

out of three papers but performed poorly in 3rd paper were

nevertheless selected on the basis of aggregate marks. In this

regard, learned Senior Counsel appearing for the Opposite

Parties made an attempt to demonstrate before this Court how

the first method is faulty by referring to Annexure-8 series.

So far second method is concerned, which was followed in

the present recruitment process, the same requires that the

candidates must secure the minimum qualifying marks of

40% for UR/SEBC and 30% for SC/ST in each of the subjects

they appeared. Therefore, an attempt was made before this // 50 //

Court to justify the second method as a better method and

fool proof method in comparison to the first method.

Moreover, it was also contended that the method of short

listing being in the nature of a policy decision of the

employer, the prescription of subjectwise minimum

qualifying mark cannot be said to be arbitrary, illegal or

discriminatory.

31. In course of his argument, learned Advocate General

referred to the Home Department letter No.30965 dated

02.09.2021, i.e., the letter of requisition conferring the

discretion on of the OPSC to prescribing subjectwise

minimum qualifying mark or any other steps. He further

submitted that it is trite law that executive instruction can be

issued by the State Government to supplement the rules or to

abridge any gap in the rules. With regard to the executive

instruction, it was also contended before this Court that such

executive instruction can be issued by any officer or Minister

under the rules of business of the Government and, as such, // 51 //

the same shall be construed as a decision of the Governor. In

the said context, learned Advocate General referred to the

judgment of the Hon'ble Supreme Court in Narmada Bachao

Andolan v. State of Madhya Pradesh, reported in (2011) 12

SCC 333. The relevant para-27 has been quoted herein

below:-

"27. The decision of any Minister or officer under the Rules of Business made under Articles 77(3) and 166(3) of the Constitution of is the decision of the President or the Governor respectively and these articles do not provide for "delegation". That is to say, that decisions made and actions taken by the Minister or officer under the Rules of Business cannot be treated as exercise of delegated power in real sense, but are deemed to be the actions of the President or Governor, as the case may be, that are taken or done by them on the aid and advice of the Council of Ministers."

32. Learned Senior Counsel appearing for the Petitioners in

course of his argument relied upon the judgment of the

Hon'ble Supreme Court in the case of Krishna Rai (Dead)

Through Legal Representatives and Others v. Banaras

Hindu University through Registrar and Others, reported in

(2022) 8 SCC 713. In support of his contention, he submitted // 52 //

before this Court that suitability criteria must be laid down by

rule-making authority and not the Selection Board unless

specifically authorized. Further, in the said reported

judgment, since there was no authorization to Board of

Examiners to lay down selection criteria and there were

instances of clear violation of criteria laid down by rule-

making authority, it was held that there can be no estoppel

against law and that where law requires something is to be

done in a particular manner and if it is not done in that

manner, it would have no existence in law. Accordingly, it

was held that the Division Bench of the High Court

committed an error in applying principle of estoppel and

finding that the appellants having appeared in interview and

being unsuccessful were estopped from challenging the same.

33. In reply to the aforesaid contention of the learned Senior

Counsel appearing for the Petitioners, learned Advocate

General, submitted that in Krishna Rai's case (supra), the

examination procedure prescribed was far beyond what was // 53 //

prescribed under the rules. The examiners changed the criteria

of examination from seniority based to merit based. In the

said context, learned Advocate General placed reliance on

para-19, 20 and 21 of the Judgment to impress upon this

Court that the judgment in Krishna Rai's case (supra) is

clearly distinguishable in facts and, as such, the ratio laid

down therein is not applicable to the fact of the present case.

34. Mr. Mishra, learned Senior Counsel appearing for the

Petitioners placed heavy reliance on the judgment of the

Hon'ble Supreme Court in Goa Public Service Commission's

case (supra). Since the law laid down by the Hon'ble

Supreme Court in Goa Public Service Commission's case

(supra) is very relevant for the purpose of the present case, it

would be apt to know about the factual background of the

case in gist. By an advertisement published by the Goa Public

Service Commission, applications were invited for filling up

six posts of unreserved category and 3 posts in reserved

category in the Goa Civil Service Rules, 2016. Pursuant to the // 54 //

advertisement, candidates appeared in the Computer Based

Screening Test held on 05.03.2017. When the results were

declared, only 7 candidates including the respondents No.1 to

3 before the Apex Court were found to have cleared the test.

In terms of the advertisement and rules, the written test came

to be conducted on 10.04.2017 and 11.04.2017. In the results

which came to be declared, out of the seven, only four

candidates were found qualified including the respondent

Nos.1 to 3. On 16.05.2017, the appellant decided to fix the

cut-off mark with respect to the interview. The total mark

fixed for the interview was 40. The appellant-Commission

before the Hon'ble Apex Court fixed cut off marks at 26. The

final interview took place on 24.05.2017. One Vivek Krishna

Naik was declared successful. The results of respondent

Nos.1 to 3 were not declared.

35. Thereafter, respondent No.1 to 3 on becoming

unsuccessful in their attempt in approaching the Goa Public

Service Commission as well as the Chief Secretary of the // 55 //

State, approached the High Court by filing a writ petition on

22.07.2017. The High Court while allowing the writ petition

directed that "We note that in the affidavit in reply, not

obtaining minimum qualifying marks in oral interview

pursuant to the decision in the meeting dated 16 May 2017 is

the sole reason not to send the names of the Petitioners to the

Respondent-State. No other reason than the qualifying marks

at the interview is shown to us." Further, it was held "we hold

that the action of the Respondent No.1-Commission in not

recommending the names of the Petitioners to the post of

Junior Scale Officer of the Goa Civil Services on the ground

that they have not secured 65% minimum qualifying marks in

the oral interview, is illegal and beyond the powers of the

Respondent No.1-Commission. The decision taken by

Respondent No.1-Commission in the meeting dated 16 May

2017 introducing criteria of 65% minimum qualifying marks

at the interview for the post of Junior Scale Officer in the Goa

Civil Service, therefore, cannot be sustained and it is quashed // 56 //

and set aside. The Respondent No. 1-Commission will take

necessary steps as per Rule 12 of the Rules of 2016 on the

basis of the consolidated marks of the Petitioners in the

written examination and oral interview without attaching any

qualifying criteria to the marks obtained at the oral interview.

The Respondent No. 1-Commission will take necessary steps

within eight weeks from the date the order is uploaded to the

server."

36. The Hon'ble Supreme Court while examining the

judgment of the High Court, examined Rule-10 of the Goa

Civil Service Rules, 2016 which provides for competitive

examination for direct recruitment. On perusal of Rule-10 of

the Rules, 2016, it appears that there was no minimum

qualifying mark prescribed for the interview. Only 65% mark

was prescribed as passing percentage for the candidates

belong to general category and 55% for the candidates

belonging to the reserved category. Further, Rule-12 of the

aforesaid 2016 Rules provides that the list of successful // 57 //

candidates is to be prepared by the Commission in order of

merit of candidates which shall be determined in accordance

to the aggregate marks obtained by each candidate at the

competitive written examination and oral interview. Finally,

after analyzing catena of Supreme Court judgments on the

point, the Hon'ble Supreme Court finally came to conclusion

that the appellant-Commission fails in its challenge to the

impugned order. Accordingly, while dismissing the appeal of

the Goa Public Service Commission, the Hon'ble Supreme

Court reiterated the directions contained in the impugned

order and further observed that it is for the appointing

authority to take a decision in accordance with law in the

matter.

37. Furthermore, referring to the aforesaid judgment in Goa

Public Service Commission (supra), learned Senior Counsel

appearing for the Petitioner submitted that the OPSC, the

examination conducting agency/authority and Home

Department had no jurisdiction to go beyond the rule and // 58 //

substitute their own view which has not been specifically

provided in the relevant rules.

38. Mr. Mishra, learned Senior Counsel appearing for the

Petitioners relied on the judgment in K. Manjusree's case

(supra). In the aforesaid case, in the advertisement, there was

no mention about fixing qualifying marks in subjectwise to be

secured in written examination though it was specifically

fixed 40% for skill test. After analysis of the fact as well as

the legal position, the Hon'ble Supreme Court has held that it

is the settle principle of law that minimum qualifying mark if

prescribed, both for written examination and interview, the

same has to be done in advance and further rules of the game

can never be changed after the game is started. By applying

the aforesaid ratio to the fact of the present case, learned

Senior Counsel appearing for the Petitioners submitted that

the minimum mark in the written test has been fixed after

evaluation of answer sheet as admitted by the Opposite

Parties in para-13 of the counter affidavit and precisely the // 59 //

same is not permissible in view of the judgment of the

Hon'ble Supreme Court in K. Manjusree's case (supra).

39. In reply to the contention raised by learned Advocate

General that having participated in the recruitment process,

the Petitioners are estopped to challenge, the learned Senior

Counsel for the Petitioners submitted that there cannot be any

estoppel against the law. He further submitted that in view of

the admission of the OPSC in its counter affidavit that the

subjectwise cut-off marks were fixed only after evaluation of

the written examination answer scripts, the Opposite Parties

have admittedly committed an illegality, as such a procedure

which has not been prescribed under the relevant rules has

been followed. He further submitted that the Petitioner only

came to know about the fixation of subjectwise qualifying

mark after the written examinations were over. Therefore,

there was no occasion on the part of the Petitioners to

approach this Court by challenging such illegal conduct of the

OPSC before such a decision was taken by the OPSC.

// 60 //

Accordingly, he submitted that the argument of the learned

Advocate General on the ground of estoppel is bound to fail.

He further contended that the selection criteria of fixation of

minimum mark of 40% in each subject saw the light of the

day for the first time with the declaration of the result of the

written test. The Petitioners were not even aware of the

criteria which were applied for selection. They only came to

know about the same after the press note was released by the

Commission after preparation of list/roll for skill test, as such,

there was no occasion to challenge the same before release of

the press note. He further submitted that the conduct of the

authority can only be challenged provided the same is brought

to the notice. In the said context, learned counsel for the

Petitioners relied upon the judgment in the case of Ramjit

Singh Kardam and Others v. Sanjeev Kumar and Others,

reported in (2020) 20 SCC 209.

40. On perusal of the judgment in Ramjit Singh Kardam's

case (supra), this Court observed that the Hon'ble Supreme // 61 //

Court has held that the candidate who participated in selection

process without demur taking calculated chance to get

selected, thereafter cannot turn around and challenge the

criteria of selection and constitution of selection committee,

however, in the facts of that case and in the absence of any

criteria being published by the Commission on the basis

whereof candidates were going to be selected and candidates

having participated in the process and such criteria having

been published for the first time along with final results,

candidates cannot be estopped from challenging selection

criteria and process. Referring to the aforesaid judgment of

the Hon'ble Supreme Court in Ramjit Singh Kardam's case

(supra), learned counsel for the Petitioner also submitted that

in the reported judgment, although the power to devise mode

of selection and to fix criteria of selection was entrusted to the

Commission vide a Notification dated 28.07.1998 and even

assuming that the Commission can change criteria of

selection, the said power cannot be exercised in an arbitrary // 62 //

manner and that the Chairman alone was not competent to

alter the mode of selection criteria especially when change in

criteria was done with objection of downgrading standard of

selection. Further, it was held that the decision dated

03.08.2008 fixing criteria for selection was not taken on that

day as claimed, but said resolution was prepared subsequent

to declaration of result as is evident from the separate

Group-C list signed by all members, produced before the

Court pursuant to direction of Single Judge. Therefore, it was

held that the decision to change selection process by

Chairman alone not only affected the applicants but also had

an adverse impact on merit based selection, which is certainly

impermissible in law.

41. In the instant case, it was also argued by the learned

Senior Counsel for the Petitioner that the stand taken by the

OPSC that it derived power and authority from the

Government vide letter dated 02.09.2021 which is an

executive instruction to fill up the gaps in the rules. The same // 63 //

stand has also been taken on behalf of the State Government

that the aforesaid letter is an executive instruction to fill the

gap in the rules and they have the competence to fill in the

gap in the rules. In reply to such argument, learned Senior

Counsel for the Petitioner submitted that the letter No.30965

dated 2.9.2021 is not in consonance with the law as provided

under Article-162, 166 of the Constitution of India and Rule-

11 of Rules of Business of the Government of Odisha.

Therefore, the same can never be treated as an executive

instruction in filling the gaps in rules, if there is any at all. In

the aforesaid context, Mr. Mishra also referred to Rule-23 of

the Rules which provides that if any question arises relating to

interpretation of the rules, the same shall be referred to the

Government in G.A. Department whose decision shall be

final. Therefore, he argued that any executive instruction on

the issue and in interpreting the rules has to come from or

with the prior approval of the G.A. Department, Government

of Odisha. However, the Opposite Parties have not filed any // 64 //

document that the decision has ever been referred to the G.A.

Department and it has been approved by the said department

of the Government of Odisha.

42. In the context of the power of Commission, it was

contended by Mr. Mishra that in para-21 of Goa Public

Service Commission' case, the Hon'ble Supreme Court has

held that independent and fair working of the Commission is

of utmost importance. It is also not supposed to function

under any offices of the Government. It has to conform to the

provisions of law and has to abide by the rules and

regulations on the subject and to take into account the policy

decisions which are within the domain of State Government.

It cannot impose its own policy decision in a matter beyond

its purview. In such view of the matter, it was also contended

before this Court that the Commission by imposing

subjectwise cut-off mark on its own, that too after written test

was over, has exceed its jurisdiction and such a decision by // 65 //

the Commission not being supported by the relevant rules is

to be treated as nullity in the eye of law.

43. Learned Advocate General, on the other hand, relies

upon the judgments in K.H. Siraj v. High Court of Kerala

and Others, reported in (2006) 6 SCC 395; and Municipal

Corporation of Delhi v. Surender Singh and Others,

reported in (2019) 8 SCC 67 in the context of cut-off marks

and interpretation of rules. He also relied upon the judgment

of the Hon'ble Supreme Court in the case of Union of India

v. Pushpa Rani and Others, reported in (2008) 9 SCC 242 in

the context of manner of recruitment is the discretion of the

employer, which according to this Court, is not relevant for

the purpose of the issue involved in this case. In the context

of the executive instruction that can be issued by the

Government to fill up the gaps in law, learned Advocate

General relied upon the judgment in the case of SK Nausad

Rahaman & Ors. v. Union of India and Ors. in Civil Appeal

No.1243 of 2022. On estoppel, learned Advocate General also // 66 //

relied upon a judgment in the case of Dhananjay Malik and

Others v. State of Utteranchal and Others, reported in

(2008) 4 SCC 171. Furthermore, in the context of non-joinder

of necessary party, learned Advocate General also relied upon

on the judgment in K.H. Siraj's case (supra).

44. Learned Advocate General to drive home the point that

the decision of an officer under the rules of business of the

Government is the decision of the Hon'ble Governor relied

upon the judgment in Narmada Bachao Andolan's case

(supra). Although the judgment in Narmada Bachao

Andolan's case (supra) has been delivered on a different set of

fact and in a different context, however, the proposition of

law laid down by the Hon'ble Supreme Court in interpreting

Article 163 and 77(3) of the Constitution of India are the well

settled proposition of law. Moreover, the same is also binding

on this Court. However, on a careful analysis of the aforesaid

judgment, this Court is of the view that the said judgment has

no applicability to the facts of the present case. In view of the // 67 //

provisions contained in Rule-23 of Rules in question. Rule-23

specifically provides that in case of interpretation of any

provisions of rules or in case of any doubt with regard to the

rules, the G.A. Department of the Government of Odisha is

the competent authority to issue clarification/notification in

the mater. No such notification/clarification having been

issued in the present case or the letter in question having not

been approved by the G.A. Department, the same cannot be

construed as an executive instruction under the provisions of

Article 166(3) of the Constitution of India so that the same

will be binding in the facts of the present case.

45. Learned Advocate General in reply to the judgment in

Goa Public Service Commission's case (supra), emphatically

submitted before this Court that the law laid down in the said

judgment is not applicable to the facts of the present case for

the following reasons:-

(a) Rule-10 of the Goa Civil Service Rules, 2016

quoted at para-13 of the judgment did not provide // 68 //

any discretion to the Commission to short list or

prescribe a cut-off mark at the stage of interview.

(b) The Hon'ble Apex Court came to the conclusion

that prescribing cut-off marks at the stage of

interview violated Rule-12 which provided that the

select list shall be prepared on the basis of

aggregate marks obtained in written examination

and interview.

(c) The advertisement itself did not prescribed cut-off

marks at the stage of interview. In the said context,

he also referred to para-23 of the judgment.

(d) So far the present case is concerned, Rule-6(6)

grants discretion to the OPSC to short list

candidates on the basis of the written test.

Accordingly, it was contended by the learned Advocate

General that judgment in Goa Public Service Commission's

case is distinguishable on facts and further on analysis of the // 69 //

rule involved in that case, the principle of law laid down by

the Hon'ble Apex Court in the said judgment is not applicable

to the facts of the present case.

46. Learned Senior Counsel appearing on behalf of the

Petitioners in reply to the judgments relied upon by the

Opposite parties in SK Nausad Rahaman & Ors. v. Union of

India and Ors., reported in 2022 LiveLaw (SC) 266 submitted

before this Court that the documents annexed as Annexure

A/1 and A/2 can never be construed as an executive

instruction under Article 162 of the Constitution of India.

Accordingly, the said judgments are not applicable to the

facts of the present case. He further contended that the

judgment in K.H. Siraj's case (supra) relied upon by the

learned Advocate General supports the facts of the

Petitioners case. In reply to the judgment in Union of India v.

Pushpa Rani and Others, reported in (2008) 9 SCC 242, it

was contended by Mr. Mishra that it is clear from the fact of

that case that the same is based on a policy decision of the // 70 //

Government. Since there was no policy decision/executive

instruction regarding fixation of qualifying mark subjectwise

by the competent department as per Rule-23, the aforesaid

judgment relied upon by the Advocate General is not

applicable to the facts of the present case.

47. In reply to Municipal Corporation of Delhi (supra),

Mr. Mishra, learned Senior Counsel also contended that it is

evident from the fact of that case that the judgment was

delivered by the Hon'ble Apex Court on a completely

different set of facts and, as such the same is not applicable to

the present case. With regard to Madhya Pradesh Public

Service Commission v. Navnit Kumar Potdar and Another,

reported in (1994) 6 SCC 293, he further contended that the

said case was decided in a factual scenario where there was

no written examination and selection was based only on

interview. Therefore, the said judgment can be distinguished

on its own fact. Finally, in reply to the judgment in

Government of Andhra Pradesh v. P. Dillip Kumar and // 71 //

Another, reported in (1993) 2 SCC 310, it was contended by

him that the said judgment has been rendered in a completely

different factual scenario and, as such, the same is not

applicable to the facts of the present case.

48. Having heard the learned Senior Counsels appearing for

the respective parties and upon a careful consideration of the

pleadings as well as the written note of submissions and the

judgment cited before this Court, this Court, at the outset, is

of the view that the question that is required to be adjudicated

in the present writ petition is with regard to the (a) power of

the OPSC to fix subjectwise cut-off mark after the written

examination was over to short list candidates for skill test; (b)

as to whether the writ petition is maintainable or it is hit by

law of estoppel in view of the fact that the Petitioners having

participated in the recruitment process are estopped to

challenge the same by filing the present writ petition.

49. To answer the first question, this Court would like to

throw light on the provision contained in the Orissa Odisha // 72 //

Secretariat Service (Method of Recruitment and Conditions of

Service) Rules, 2016. The aforesaid rule has been framed in

exercised of the power conferred by proviso to Section 309 of

the Constitution of India and in suppression of earlier rule of

the 2010. The rules which are relevant for the purpose of

present case are Rule-4 and Rule-6 of the Rules, 2016. For

better understating both Rule-4 and Rule-6 of the Rules, 2016

have been quoted herein below:-

"4. Method of Recruitment:- Subject to other provisions made in these rules recruitment to different grades in the service shall be made by the following methods, namely:-

(a) in respect of the post of Assistant Section Officer in Group-B as specified in clause(a) of rule 3-

(i) by means of competitive examination to be held at least once in a year by the Commission in accordance with rule 6;

(ii) by selection from among the Senior Grade Typists, Senior Grade Diarists, Recorders and Senior Data Entry Operators of the Departments of Government and

(b) in respect of the other posts by way of promotion in accordance with these rules."

// 73 //

"6. Competitive Examination:- (1)The direct recruitment to the post of Assistant Section Officer through competitive examination shall be conducted by the Commission.

(2) Subject to the provisions of rule 11, the Home Department shall communicate the total number of vacancies, that is, the existing vacancies, if any, and the anticipated vacancies likely to arise during the recruitment year to be filled up by direct recruitment to the commission in the first week of December, indicating the posts to be reserved for candidates belonging to different reserved categories.

(3) The Commission shall, on receipt of the vacancies from the Government in Home Department, publish the advertisement at the latest by the last week of December in the Odisha Gazettee and two widely circulated Odia Dailies, inviting applications from the candidates eligible to appear at the written examination.

(4) The date and the place of the written examination shall be as may be decided and notified by the Commission.

(5) The scheme and subjects for the written examination and the syllabus shall be as specified in the Schedule.

(6) Only those candidates who have been short listed after the written test shall be called for the skill test in computer as provide in the schedule which shall be of qualifying nature. One has to secure at least forty percent of the total marks in the skill test to qualify it."

// 74 //

50. On analysis of Rule-4 which deals with the method of

recruitment, it appears that the recruitment to the post of ASO

shall be made by means of competitive examination to be

held at least once in a year by the Commission in accordance

with the rule-6 and by selection from among the Senior Grade

Typists, Senior Grade Diarists, Recorders and Senior Data

Entry Operators of the Departments of Government. In the

present case, we are confined to the 1st method of recruitment,

i.e., by means of competitive examination. Rule-4 provides

for method of recruitment i.e. for direct recruitment to the

post of ASO, the same shall be made by means of a

competitive examination which is to be held by the OPSC in

accordance with Rule-6.

51. On a careful scrutiny of the Rule-6 under para-3 dealing

with direct recruitment, it appears that the competitive

examination shall be conducted by the OPSC. Sub-rule (2)

provides that the Home Department shall communicate the

total number of vacancies in the post to be filled up by direct // 75 //

recruitment. Sub-rule(3) provides that commission shall

publish the advertisement latest by the last week of December

in the Odisha Gazettee and two widely circulated Odia

Dailies inviting application from the desirous candidates, who

are eligible to appear in the written test. Sub-rule(4) deals

with the date and place of the written examination which is to

be decided and notified by the Commission. Sub-rule-5 & 6

of Rule-6 are the most relevant provisions for the adjudication

of the dispute involved in the present case.

52. Sub-rule(5) of Rule-6 provides that the scheme and

subject for the written examination and the syllabus shall be

as specified in the schedule. The most relevant aspect i.e. the

schedule attached to the Rules, 2016, which is quoted herein

below:-

SCHEDULE Scheme and Syllabus of the Examination [See sub rule (5) of Rule - 6] SCHEME Papers Subject Marks No. of Duration Questions // 76 //

I General Awareness 100 100 1 ½ hrs

Reasoning & Mental ability (B) Mathematics 50 50 1 ½ hrs (10th Standard

Level)

III Language

2 hrs.

IV Skill Test in Computer 50 05 1 hr.

Application (practical)

NOTE:

1 Except the Skill Test in Computer Application (Practical), the questions in all other subjects shall be of multiple choice type and all questions will carry equal marks i.e. 01.

2 For each wrong answer 0.25 marks shall be deducted from the marks awarded for correct answers.

3 The candidates shall answer the questions in English except Odia language paper or otherwise specified in the question paper itself. 4 Only those candidates who have been shortlisted after the Written Test shall be called for Skill Test in Computer by the Commission which shall be of qualifying nature.

On a conjoint reading and analysis of sub-rule(5) and

the schedule attached to the rules, it appears that the schedule

provides for the subject in which the examination is to be // 77 //

conducted with the maximum marks assigned to each paper

along with total number of questions to be given in each

subject and the duration of the examination. The Note-4

appended to the schedule provides that only those candidates

who have been shortlisted after the Written Test shall be

called for Skill Test in Computer by the Commission which

shall be of qualifying nature. Therefore, it is crystal clear that

rule nowhere provides for any subjectwise minimum

qualifying mark. On the contrary, the rule indicates that for

each correct answer one mark shall be awarded and for a

wrong answer 0.25 marks shall be deducted. The intention

behind laying down a clear procedure in the schedule is to

give prior intimation to the students so that they can prepare

according to the scheme of the competitive written test and,

accordingly, they try to do their best by trying to secure the

highest mark on the best possible manner to be eligible for

selection and appointment.

// 78 //

53. At this juncture, this Court feels that the intention

behind fixing the minimum qualifying mark by the

Commission may be good, however, the same is bad on two

counts. First it is not supported by the rules and that no prior

intimation was given to the candidates who appeared in the

written test. Admittedly, the eligibility on the basis of

minimum qualifying mark on each subject was declared only

after the written test was conducted. This Court at this

juncture feels that when a candidate appears in the

recruitment test or written test, he comes prepared as per the

scheme of the examination. Sometimes they also plan or

strategize so that they can fetch maximum marks in some

subjects ignoring some other subjects. The ultimate objective

of each candidate is to perform in the best possible manner

and to try to secure the highest possible mark so that they can

be shortlisted for the next stage. In the present case, the OPSC

admittedly introduced the subjectwise qualifying mark after

the written test was over.

// 79 //

54. Further, as has been discussed above, there was no

provision in the rules with regard to fixation of minimum

qualifying mark for each subject. Moreover, on a reading of

sub-rule(6) of Rule-6, it gives an impression that only those

candidates who have been short listed after the written test

shall be called for the skill test in computer as provided in the

schedule which shall be of qualifying nature. Further, the said

rule provides that one has to secure at least 40% of the total

mark in the skill test to qualify it. At this juncture, this Court

feels had it been the intention of the rule makers that there

should be some minimum qualifying mark for each subject

then the same should have been provided in sub-rule(6) or at

least in the schedule. On the contrary sub-rule(6) provides

that only those candidates who have been short listed as per

the written test shall be called for the skill test in computer.

On analysis of this line in rule(6), this Court is of the

considered view that the candidates who have been short

listed after the written test means the written test conducted // 80 //

pursuant to sub-rule(5) and the schedule appended to the

rules. The schedule appended to the rules having not

prescribed any minimum qualifying mark, it was not proper

on the part of the OPSC to introduce the minimum qualifying

mark for each subject that too at a belated stage when the

written test was over as admitted by the Opposite Parties in

their counter affidavit.

55. So far the preparation of merit list is concerned, on a

careful reading of rule-10, it appears that the merit list is to be

prepared on the basis of the results of the examination and the

Commission shall prepare a common list of successful

candidates found suitable for appointment in order of merit

subject, of course, to reservation for different categories. Sub-

rule(3) of Rule-10 also provides that the final ranking of the

candidates shall be on the basis of the marks obtained in the

written examination. Therefore Rule-10(3) clearly provides

that the comparative merit list is to be drawn on the basis of

the aggregate mark obtained in the written examination.

// 81 //

Similarly, sub-rule(4) of Rule-10 provides that in a case

where two candidates secure same mark in the aggregate, the

candidate securing higher marks in General Knowledge shall

rank above others. On a plain reading of aforesaid Rule-10 in

the context of preparation of the merit list, the concept of

subjetwise qualifying mark appears to be redundant.

56. Next point involves another important provision under

the rules, i.e., Rule-23 with regard to interpretation of the

Rules, 2016. The said rule for better appreciation has been

quoted herein below:-

"23. Interpretation:- If any question arises relating to interpretation of these rules, the same shall referred to the Government in General Administration Department whose decision thereon shall be final."

57. The aforesaid provision in Rule-23 is very clear with

regard to the rule making authority or interpretation of the

rules. Although the rule was notified in the Odissa Gazettee

by the Home Department vide Notification dated 9th January, // 82 //

2017, the said rule specifically provides that in case of any

dispute with regard to interpretation of the said rule, the same

shall be referred to the Government in G.A. Department and

the decision of the G.A. Department shall be final. In the

aforesaid context, the argument advanced by Mr. Mishra,

learned Senior Counsel appearing for the Petitioners that there

being no executive instruction or approval to the letter in

question by the G.A. Department, by no stretch of

imagination, it can be construed that there was executive

direction to fill up the gap in the rules, if there is any at all.

Therefore, this Court has no hesitation in coming to a

conclusion that it is the G.A. Department, Government of

Odisha which is competent to issue any clarification with

regard to interpretation of the rules as well as any kind of

executive instruction to fill up the lacuna in the rules, if there

is any.

58. Learned Advocate General as well as learned Senior

Counsel appearing for the OPSC led much emphasis on // 83 //

Clause-6(c) of the advertisement under Annexure-1 to the

writ petition. A bare reading of clause-6(c) of the

advertisement reveals that it has been mentioned that the

Commission shall be competent to fix up the qualifying

marks, if any, or all the subjects of the examination. As has

been discussed in the preceding paragraph and the finding of

this Court that there is no provision in the Rules, 2016 with

regard to fixation of minimum qualifying mark subjectwise in

the written test, clause-6(c), therefore, appears to have been

inserted in the advertisement by the OPSC, which is the

examination conducting body/agency, although such a

provision is not there in the Rules, 2016. Therefore, at the

first blush, this Court has no hesitation in coming to a

conclusion that fixation of such a qualifying criteria is beyond

the authority of the OPSC. Moreover, although a similar

clause was available in the advertisement of the previous

years, in none of the previous years examination, the

subjectwise minimum qualified mark was ever fixed by the // 84 //

OPSC while selecting the candidates. Even assuming that the

OPSC is competent to fix such a condition and that the letter

of the Home Department authorizes the OPSC to fix such a

condition, they were under an obligation to inform the

candidates before the candidates entered into examination

hall.

59. So far the letter dated 2.9.2021 is concerned, on a

careful examination of the said letter under Annexure-A/1 to

the State's counter affidavit, it appears that the same is a letter

of the routine nature issued by the Additional Secretary to

Government of Odisha in Home Department to the Secretary

to the Odisha Public Service Commission in the context of

conduct of recruitment test to the post of ASO of Odisha

Secretariat. Further, the contents of the said letter reveals that

the same is in the nature of a forwarding letter enclosing the

requisition and draft advertisement for filling up vacant post

in different departments of Odisha Secretariat as per Rules,

2016 and amendment thereto. First of all the letter dated // 85 //

2.9.2021, on which much emphasis has been led by the

learned Advocate General as well as learned Senior Counsel

appearing for the OPSC, is a forwarding letter forwarding a

copy of the draft advertisement.

60. Moreover, the very same letter reveals that the posts are

to be filled up by the OPSC as per the 2016 Rules and

amendment thereto. In the body of the letter, there is no such

mention about fixation of the minimum qualifying mark

subjectwise. However, the draft advertisement which has

been enclosed to the letter reveals in clause-6(c) that the

Commission shall be competent to fix up of the qualifying

marks in any or all the subjects of the examination and skill

test in computer practical. Therefore, a condition in the draft

advertisement without backing of the rules cannot be accepted

as a valid condition which is binding on the candidates.

Rather, the draft advertisement is just a sample given by the

State-Government to the OPSC. However, while issuing the

final advertisement, the OPSC should have examined the // 86 //

draft keeping in view the provisions of the rules. Without

following the same procedure, the OPSC has mechanically

accepted the draft advertisement and the same was published.

61. This Court at this juncture would like to observe that

merely because the OPSC has published the advertisement,

the same would not become sacrosanct per se. Rather the

OPSC is under a legal obligation to verify that the draft

advertisement is in terms of the rules governing the field. The

OPSC being a constitutional examination body/agency

constituted under Article 320 of the Constitution of India is

not any ordinary recruiting agency or examining body. They

have a constructional obligation application to be discharged.

In the present case, this Court observed that from the facts of

the present case, it appears that the OPSC has acted

mechanically without verifying the rules. At this juncture, this

Court would like to refer to the observation of the Hon'ble

Supreme Court in para-21 of the judgment in Goa Public

Service Commission's case supra where the Hon'ble Supreme // 87 //

Court has remained the Goa Public Service Commission of its

role and duty as a constitutional body.

62. In view of the aforesaid analysis of fact as well as the

legal position as narrated by the Hon'ble Supreme Court in a

catena of judgments, this Court is persuaded to come to a

conclusion that the OPSC had no authority to fix the

minimum qualifying mark subjectwise after the written test

was over. Moreover, in the light of aforesaid Supreme Court

judgments, this Court is also of the clear view that the

Petitioners are not estopped by the fact that they had appeared

in the recruitment test, therefore, they would be debarred to

challenge the illegal conduct of the Opposite Parties.

63. Accordingly, the writ petition stands allowed. The

merit/select (short listed) list published vide Notice dated

07.11.2022 by the OPSC for document verification and skill

test under Annexure-5 is hereby quashed. Consequential,

Press Notice dated 10.11.2022 and 22.11.2022 are also hereby

quashed. It is further directed that the OPSC shall redraw the // 88 //

select /merit (short listed) list strictly in terms of the Rule-6(5)

and Rule-6(6) as well as the schedule appended to the Rules,

2016 on the basis of the aggregate marks secured by the

candidates. Accordingly, the candidates shall be called for

verification of document and to participate in the skill test on

the basis of redrawn merit/select (short listed) within a period

of two months from today. Further it is directed that both the

State Government as well as the OPSC shall ensure that the

selection process continues strictly in terms of the Rules,

2016. There shall be no order as to cost.

(A.K. Mohapatra) Judge

Orissa High Court, Cuttack The 19th May, 2023/D. Aech, P.A.

Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: PA Reason: Authentication Location: OHC CUTTACK Date: 20-May-2023 13:47:07