A.P. Public Service Commission Vs. B. Swapna & Ors  Insc 181 (16 March 2005)
Pasayat & S.H. Kapadia
out of SLP (C) No. 23510/2003 ARIJIT PASAYAT, J.
Andhra Pradesh Public Service Commission (hereinafter referred to as the
'Commission') calls in question legality of the judgment rendered by a Division
Bench of the Andhra Pradesh High Court affirming the judgment of the Andhra
Pradesh Administrative Tribunal (in short the 'Tribunal').
controversy involved in the present appeal arises in the following background:
appellant-Commission by its advertisement No.13/94 dated 17.1.1995 advertised
for filling up 8 posts of Assistant Public Relations Officers. Subsequently, 7
more vacancies were advertised.
the recruitment was made for 15 vacancies. There were 5 zones namely, Zones I
to V for which selections were to be made in the following manner:
Community No. of vacancies I OC 2 BC-B 1 II OC 2 BC-B 1 III OC 1 BC-A 1 IV OC 2
BC-B 1 ST 1 V OC 2 BC-C 1 15 The short abbreviations used above are: Open
category-OC, Backward Classes-BC and Scheduled Tribe-ST. As noted above,
amongst backward classes there were further sub-classifications i.e. BC-A, BC-B
and BC- C.
selections were finalised on 2.7.1996.
to respondent No.1 (hereinafter referred to as 'applicant') she was placed at
Serial No.1 in the wait list which is disputed by the appellant-Commission. At
that point of time, the Andhra Pradesh Service Commission (Procedure) Rules (in
short the 'Rules') were applicable and the existing Rule 6 was as follows:
ranking list prepared by the Commission for selection in a direct recruitment
shall remain in force for a period of one year from the date on which the
selection list is published on the Notice Board of the Commission or till the
publication of the new selection list whichever is earlier. The Commission may
select candidates from the ranking list in force in place of those who
relinquish the selection or who do not join duty within the time given and also
new requisitions sent by appointing authority. However, the Commission shall
have the right to freeze any ranking list for reasons recorded." The wait
list was valid for a period of one year. There was amendment to Rule 6 w.e.f.
30.7.1997 and the amended Rule reads as follows:
list of the candidates approved/selected by the Commission shall be equal to
the number of vacancies only including those for reserve communities/categories
notified by the Unit Officers/Government. The fall out vacancies if any due to
relinquishment and non-joining etc., of selected candidates shall be notified
in the next recruitment." According to the applicant during the period of
wait list the competent authority again notified 14 vacancies on 14.4.1997 and
these vacancies ought to have been filled up by the candidates from the wait
list. She claimed that she was entitled for appointment. The applicant moved
the Tribunal by filing an Original Application. The same was disposed of with
the following direction:
the circumstances after hearing both sides and on perusal of the material
placed on record, the 1st respondent is directed to send the list of the
candidates selected in Zone-IV to the Government, as indicated in the letter
No.5088/Amn.1-3/98 dated 11.5.1998 a copy of which has been marked to the
Secretary, A.P. Public Service Commission without any further delay to the 3rd
respondent at any rank within one week from the date of receipt of this order.
The 3rd respondent thereupon should examine the same and take a decision on the
appointment of the applicant respectively. The Ist respondent should examine
the list to be sent relating to Zone IV of the candidates selected to the post
of Assistant Public Relations Officer within a period of 3 weeks from the date
of receipt of this order. The O.A. is disposed of accordingly with the above
directions at the admission stage. No costs." The aforesaid direction as
quoted above was challenged by the Commission by filing a Writ Petition before
the High Court. The High Court disposed of the writ petition by directing the
appellant to forward the name of applicant-respondent No.1 to the Government
for appointment to the concerned post. The High Court was of the view that
though the Rule was amended w.e.f. 30.7.1997, it was applicable to the present
dispute and the wait list was operative for the period of one year and even
during that period if any fall out vacancy has arisen and any new appointments
are to be made for fresh vacancies, they should be filled up by the candidates
from the wait list.
support of the appeal, learned counsel for the appellant- Commission submitted
that the High Court's approach was clearly erroneous. It is a conceded position
that the un-amended Rule 6 was applicable to the facts of the case. The
appellant-Commission had clearly directed the Government to advertise afresh.
Though the Commission had the option to select candidates from the ranking list
in force in place of those who relinquish the selection or who did not join the
duty within the given time and also new requisitions sent by appointing
authority, the Commission at the relevant point of time had the right to freeze
any ranking list for reasons recorded. The fact that the Commission had
directed issuance of fresh advertisement was clearly indicative of the fact
that the Commission did not want the ranking list to be given effect to. This
is borne out from records. In any event, there is a dispute as to whether the
applicant was at serial No.1 in the wait list.
counsel for the applicant-respondent No.1 on the other hand submitted that
though it was the un-amended Rule which was applicable and not the amended rule
as was held to be applicable by the High Court, yet there was no material
before the Tribunal or the High Court to show that the appellant-Commission had
directed freezing of the ranking list. According to him, no other person had
staked any claim and even if it is conceded for the sake of arguments that
respondent No.1-applicant was not at the top of the ranking list, that would
not make any difference because others had not staked any claim.
case can be considered in the peculiar facts of the case by relaxation of
are two principles in service laws which are indisputable.
there cannot be appointment beyond the advertised number and secondly norms of
selection cannot be altered after the selection process has started. In the
instant case 15 posts were to be filled up.
vacancies in the different zones were as follows:
IV ST 1 Zone III BC-A 1 Zone V BC-C 1 Fourteen vacancies were indented on
14.4.1997. Obviously, they were not existing vacancies on the date of
advertisement i.e. 8.1.1995.
selection list was operative till 1.7.1997. The 14 vacancies which were
indented on 14.4.1997 were as follows:
III BC 'A'-1, OC-1 Zone IV ST-1, OC-2 Zone V BC 'C'-1, SC-1, BC 'D'-1, OC-3
Zone VI SC-1, OC-1, BC 'D'-1 As per amended Rule 6, the fall out vacancies if
any due to relinquishment and non-joining etc. of selected candidates are to be
notified in the next recruitment.
legal position so far as the case of existing vacancies, notified vacancies and
future vacancies has been set out by this Court in several decisions. In Prem
Singh and Ors. v. Haryana State Electricity Board and Ors. (1996 (4) SCC 319), in
paragraphs 25 and 26 it was laid down as follows:
From the above discussion of the case-law it becomes clear that the selection
process by way of requisition and advertisement can be started for clear
vacancies and also for anticipated vacancies but not for future vacancies. If
the requisition and advertisement are for a certain number of posts only the
State cannot make more appointments than the number of posts advertised, even
though it might have prepared a select list of more candidates. The State can
deviate from the advertisement and make appointments on posts falling vacant
thereafter in exceptional circumstances only or in an emergent situation and
that too by taking a policy decision in that behalf. Even when filling up of
more posts than advertised is challenged the court may not, while exercising
its extraordinary jurisdiction, invalidate the excess appointments and may
mould the relief in such a manner as to strike a just balance between the
interest of the State and the interest of persons seeking public employment.
What relief should be granted in such cases would depend upon the facts and
circumstances of each case.
the present case, as against the 62 advertised posts the Board made
appointments on 138 posts. The selection process was started for 62 clear
vacancies and at that time anticipated vacancies were not taken into account.
Therefore, strictly speaking, the Board was not justified in making more than
62 appointments pursuant to the advertisement published on 2-11-1991 and the selection process which followed thereafter.
the Board could have taken into account not only the actual vacancies but also
vacancies which were likely to arise because of retirement etc. by the time the
selection process was completed it would not be just and equitable to
invalidate all the appointments made on posts in excess of 62. However, the
appointments which were made against future vacancies - in this case on posts
which were newly created - must be regarded as invalid. As stated earlier,
after the selection process had started 13 posts had become vacant because of
retirement and 12 because of deaths. The vacancies which were likely to arise
as a result of retirement could have been reasonably anticipated by the Board.
The Board through oversight had not taken them into consideration while a
requisition was made for filling up 62 posts. Even with respect to the
appointments made against vacancies which arose because of deaths, a lenient
view can be taken and on consideration of expediency and equity they need not
be quashed. Therefore, in view of the special facts and circumstances of this
case we do not think it proper to invalidate the appointments made on those 25
additional posts. But the appointments made by the Board on posts beyond 87 are
held invalid. Though the High Court was right in the view it has taken, we
modify its order to the aforesaid extent. These appeals are allowed
accordingly. No order as to costs." The view was recently re-iterated in
State of Jammu and
Kashmir and Ors. v. Sanjeev
Kumar and Ors. (2005 (2) Supreme 303).
High Court has committed an error in holding that the amended rule was
operative. As has been fairly conceded by learned counsel for the applicant-respondent
No.1 it was un-amended rule which was applicable. Once a process of selection
starts, the prescribed selection criteria cannot be changed. The logic behind
the same is based on fair play. A person who did not apply because a certain
criteria e.g. minimum percentage of marks can make a legitimate grievance, in
case the same is lowered, that he could have applied because he possessed the
said percentage. Rules regarding qualification for appointment if amended
during continuance of the process of selection do not affect the same. That is
because every statute or statutory rule is prospective unless it is expressly
or by necessary implication made to have retrospective effect. Unless there are
words in the Statute or in the Rules showing the intention to affect existing
rights the rule must be held to be prospective. If the Rule is expressed in a
language which is fairly capable of either interpretation it ought to be
considered as prospective only. (See P. Mahendran and Ors. v. State of Karnataka and Ors. etc. (1990 (1) SCC 411)
and Gopal Krishna Rath v. M.A.A. Baig (dead) by Lrs. And Ors. (1999(1) SCC
aspect which this Court has highlighted is scope for relaxation of norms.
Although Court must look with respect upon the performance of duties by experts
in the respective fields, it cannot abdicate its functions of ushering in a
society based on rule of law.
it is most satisfactorily established that the Selection Committee did not have
the power to relax essential qualification, the entire process of selection so
far as the selected candidate is concerned gets vitiated. In P.K. Ramchandra Iyer
and Ors. v. Union of India and Ors. (1984 (2) SCC 141) this Court held that once it is
established that there is no power to relax essential qualification, the entire
process of selection of the candidate was in contravention of the established
norms prescribed by advertisement. The power to relax must be clearly spelt out
and cannot otherwise be exercised.
State of U.P. v. Rafiquddin and Ors. (1987 (Supp)
SCC 401), it was inter alia, held as follows:
we close we would like to refer certain aspects which came to our notice during
the hearing of the case relating to the functioning of the Public Service
Commission, selection of candidates and their appointment to the Judicial
Service. We were distressed to find that the Public Service Commission has been
changing the norms fixed by it for considering the suitability of candidates at
the behest of the State Government after the declaration of results. We have
noticed that while making selection for appointment to the U.P. Judicial
Service the Commission had initially fixed 40 per cent aggregate marks and
minimum 35 per cent marks for viva voce test and on that basis it had recommended
list of 46 candidates only. Later on at the instance of the State Government it
reduced the standard of 40 per cent marks in aggregate to 35 per cent and on
that basis it forwarded a list of 33 candidates to the government for
appointment to the service. Again at the behest of the State Government and
with a view to implement the decision of the high level committee consisting of
Chief Justice, Chief Minister and the Chairman of the Commission forwarded name
of 37 candidates in 1974 ignoring the norms fixed by it for judging the
suitability of candidates. The Commission is an independent expert body. It has
to act in an independent manner in making the selection on the prescribed
norms. It may consult the State Government and the High Court in prescribing the
norms for judging the suitability of candidates if no norms are prescribed in
the Commission determines the norms and makes selection on the conclusion of
the competitive examination and submits list of the suitable candidates to the
government it should not reopen the selection by lowering down the norms at the
instance of the Government. If the practice of revising the result of
competitive examination by changing norms is followed there will be confusion
and the people will lose faith in the institution of Public Service Commission
and the authenticity of selection."
In Maharashtra State Road Transport Corpn. And Ors. v. Rajendra
Bhimrao Mandve and Ors. (2001 (10) SCC 51), it was held as under:
has been repeatedly held by this Court that the rules of the game, meaning
thereby, that the criteria for selection cannot be altered by the authorities
concerned in the middle or after the process of selection has commenced.
Therefore, the decision of the High Court, to the extent it pronounced upon the
invalidity of the circular orders dated 26.6.1996, does not merit acceptance in
our hand and the same are set aside."
Krushna Chandra Sahu and Ors. v. State of Orissa and Ors. (1995(6) SCC 1), it was held as under:
The Selection Committee does not even have the inherent jurisdiction to lay
down the norms for selection nor can such power be assumed by necessary
implication. In P.K. Ramachandra Iyer v. Union of India (1984 (2) SCC 141) it
was observed: (SCC pp.180-81, para 44) "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."
Similarly, in Umesh Chandra Shukla v. Union of India (1985(3) SCC 721) it was
observed that the Selection Committee does not possess any inherent power to
lay down its own standards in addition to what is prescribed under the Rules.
Both these decisions were followed in Durgacharan Misra v. State of Orissa (1987(4) SCC 646) and the
limitations of the Selection Committee were pointed out that it had no
jurisdiction to prescribe the minimum marks which a candidate had to secure at
the viva voce.
may be pointed out that rule-making function under Article 309 is legislative
and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana
(1980 Supp SCC 524). For this reason also, the Selection Committee or the
Selection Board cannot be held to have jurisdiction to lay down any standard or
basis for selection as it would amount to legislating a rule of
Commission has been given right to freeze any ranking list. The selection from
the ranking list from amongst the posts advertised was limited to the cases
where the selected candidates had relinquished the selection or who had not
joined the duties within the given time and also new requisitions sent by the
appointing authority. The Commission did not think it appropriate to make
appointment from the new requisitions. The fact that the Commission had
directed that fresh advertisements were to be made is clearly indicative of the
fact that the Commission did not want the new requisitions were to be filled up
by appointing from the ranking list in force. The Tribunal and the High Court
were therefore not justified in holding by referring to the amended rule that
the fall out vacancies were to be filled up from the ranking list. The fall out
vacancies in terms of the amended notification were to be notified in the next
recruitment. Case of the applicant all through has been that her claim was
relatable to the 14 vacancies indented on 14.4.1997 and in particular the open
category. It is not her case that Commission had directed fresh advertisement
though it had not freezed the rank list. It is not disputed that there cannot
be direction for fresh advertisement unless the rank list is freezed.
materials placed on record clearly show that before directing fresh
advertisement, the Commission had in fact for reasons recorded directed
freezing. Unfortunately, the Tribunal did not grant adequate time to the
Commission to produce relevant records and the High Court proceeded on erroneous
premises that the amended rules applied. Therefore, looked at from any angle,
the High Court's judgment affirming Tribunal's judgment cannot be maintained.
The same is set aside. The appeal is allowed with no order as to costs.