Orissa High Court
Rajat Kumar Mishra And Others vs State Of Odisha And Others ... Opposite ... on 19 May, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
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 II (A) Test of 50 50 Reasoning & Mental ability (B) Mathematics 50 50 1 ½ hrs (10th Standard Level) III Language (a) English 100 100 2 hrs. (b) Odia 100 100 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