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CASE NO.: Appeal (civil)  4121 of 2006

PETITIONER: Pitta Naveen Kumar & Ors.                                                

RESPONDENT: Raja Narasaiah Zangiti & Ors.                                            

DATE OF JUDGMENT: 14/09/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No.6789 of 2006] W I T H

CIVIL APPEAL NOS. 4131, 4130 & 4132 OF 2006 [Arising out of SLP (Civil) Nos.6516, 7016 & 8275 of 2006]

S.B. SINHA, J.   

                Leave granted in the S.L.Ps.

                The State of Andhra Pradesh notified 301 vacancies by a notification  bearing No. 21 of 2003 dated 21.11.2003 in respect of the following six  categories of Group 1 services:

(i)     Deputy Collectors in A.P. Civil Service (Executive Branch) (ii)    Commercial Tax officers in A.P. Commercial Tax Service (iii)   Deputy Superintendent of Police (Category-2) in A.P. Police  Service (iv)    Regional Transport Officers in the A.P. Transport Service (v)     Assistant Prohibition and Excise Superintendents in A.P. Excise  Service (vi)    Mandal Parishad Development Officer in A.P. Panchayat Raj  Rural Development Service.

       For filling up of the vacancies so notified, the Andhra Pradesh Public  Service Commission (for short "the Commission") issued a notification on  or about 21.11.2003 inviting applications from candidates eligible therefor.   The salient features of the recruitment process are as under:

(i)     Recruitment was to be made to vacancies notified only. (ii)    Recruitment was to be processed as per the notification and GOMs  No. 570 dated 31.12.1997 and instructions issued by the State from  time to time. (iii)   The candidates were to possess the essential qualifications  specified therefor  as on the date of notification. (iv)    The minimum and maximum age specified for the post were to be  reckoned as on 1.7.2003. (v)     The applicants were to be subjected to a Screening Test (Objective  Type) for admission in the Main (Written) Exam.  The candidates  who obtained the minimum qualifying marks in the written  examination were to be called for interview in the ratio 1:2 with  reference to the number of vacancies.

       Procedure for filling up of the vacancies was laid down in GOMs No.

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570 dated 31.12.1997 in terms whereof the number of candidates to be  admitted to the written examination was to be 50 times the total number of  vacancies available at the material time.  On or about 10.12.2003, 18 more  vacancies were notified, totalling 319 vacancies.  1,52,000 candidates  including the Appellants herein submitted their applications in response to  the said notification.  Yet again, 32 posts were declared vacant on or about  1.1.2004.   

       A Preliminary Examination was conducted by the Commission on  28.3.2004.   

Thereafter an Original Application was filed before the Andhra  Pradesh Administrative Tribunal by some candidates being OA No. 1708 of  2004 inter alia for a declaration that notification of vacancies in nine  categories of posts only instead and place of twenty categories in Group I  services was illegal.  By an interim order dated 16.4.2004, it was directed:

"Having regard to these facts and circumstances of  the case, there shall be a direction to the  respondents to compute and calculate the  vacancies pertaining to various categories of posts  under Group \026 I services and notifying the same to  the APPSC pending disposal of the OA."

       A notification was issued being GOMs No. 164 on 6.7.2004 fixing  1.7.1999, instead of 1.7.2003 as originally stipulated, as the relevant date for  fixing the upper age limit for candidates eligible to appear at the  examination.

       The Commission thereafter issued a supplemental notification being  No. 6 of 2004 on 7.8.2004 inviting applications for filling up of 170  additional vacancies stipulating:

(i)     The candidates who were eligible but failed to appear in response  to notification No. 21 dated 13.11.2003 may apply in response to  supplementary notification. (ii)    The candidates who had appeared in the screening test held on  28.3.2004 in response to notification No. 21 of 2003 should not  apply again.  

       A second preliminary test thereafter was held on 10.10.2004 for about  51,768 candidates who had applied in response to the said supplemental  examination.  The Commission upon holding the said preliminary test  released a list of 28,865 candidates stating that the marks obtained by the  last candidate admitted into the main examination was 66% which was  arrived at in terms of the ratio of 1:2 stipulated in the rules of selection.  The  said list was prepared with reference to 524 notified vacancies as on  7.8.2004 which included 223 vacancies notified after the issue of the initial  notification for 301 vacancies on 21.11.2003 and upon taking into account  the results of both the preliminary tests held on 28.3.2004 and 10.10.2004.   Questioning inter alia the said action on the part of the Commission, some  candidates who had not been admitted into the Main Examination filed an  original application before the Tribunal which was numbered as OA No. 26  of 2005 praying for the following directions to the Respondents:

(i)     to compute the correct number of vacancies and notify the same  before the main examination; (ii)    to declare that the petitioners therein are entitled to be called for  the main examination after correctly computing the number of  vacancies in the ratio of 1:50 (i.e. as per GOMs No. 520).

       An interim order was passed therein by the Tribunal on 6.1.2005  reducing the cut-off marks for appearing in the main examination from 66%  to 61% on the premise "so that some opportunity is given to some more  candidates to appear for main examination as some more posts are there not

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notified have to be considered."

       An application for vacating the said interim order was filed by the  candidates aggrieved thereby whereupon by an order dated 9.4.2005 it was  directed:

"\005it would be just and proper to direct the APPSC  not to declare the result of the candidates who have  been permitted to appear for group 1 main  examination in terms of the interim orders of this  Tribunal, pending further orders in the OAs."

       The State of Andhra Pradesh, however, issued a Government Order  bearing GOMs No. 200 dated 30th April, 2005 purported to be terms of the  directions of the Andhra Pradesh Administration Tribunal, the relevant  portion whereof reads as under:

"In the circumstances, after careful consideration  Government direct the Andhra Pradesh Public  Service Commission to reduce the qualifying  marks from 66 to 61 to allow more candidates for  the main examination for recruitment to Group \026 I  Services with reference to the Notification No.  21/2003 and Supplemental Notification No. 6/2004  in relaxation of the orders issued in the G.O. first  read above."

       The legality of the said Government Order came to be questioned by  some of the parties herein in OA Nos. 3960 of 2005 and 5548 of 2005.   During pendency of the said original applications before the Tribunal, the  Main Written Examination was conducted by the Commission in the month  of May/June, 2005.  Original Applications were dismissed by the Tribunal  and consequently interim order dated 6.1.2005 stood vacated having regard  to the decision of this Court in Union Public Service Commission v. Gaurav  Dwivedi and Others [(1999) 5 SCC 180] stating:

(i)     The Tribunal had no jurisdiction to interfere with the percentage of  marks fixed by the Commission as cut off marks for enabling the  candidates to appear for main examination.  Interim order dated  6.1.2005 and consequential GOMs No. 200 issued by the  Government has the effect of interfering with the cut-off marks  prescribed by the Commission which the Tribunal cannot do. (ii)    The interim order dated 6.1.2005 and GOMs has the effect of  allowing 23,000 candidates who were otherwise ineligible to  appear in the examination thereby causing prejudice to the  candidates who were initially selected.

       The Tribunal by reason of its order dated 30.1.2006 directed the  Respondents to finalise the process of selection in accordance with GOMs  No. 570 dated 30.12.1997 for 543 posts instead of 524 posts and complete  the entire process of selection within three months.   

       The State of Andhra Pradesh or the Commission did not question the  correctness or otherwise of the said judgment.  Respondent Nos. 1 to 3,  however, filed a writ petition before the High Court.  Some other writ  petitions were also filed inter alia questioning GOMs No. 164 dated  6.7.2004 and GOMs No. 133 of 23.3.2005.         The High Court by reason of its impugned judgment reversed the  judgment and order of the Tribunal opining:

(i)     There is nothing sacrosanct in GOMs No. 570 dated 30.12.1997  which stipulated the ratio of 1:50 between the number of vacancies  and the number of candidates to be admitted to the main written  examination; (ii)    Interim order dated 6.1.2005 of the Tribunal directing a cut off

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mark lower than the one arrived at in accordance with the ratio  prescribed under GOMs No. 570 was fixed for the reason that if  eventually more number of posts in Group 1 are to be filled up,  fixing lower cut off mark would satisfy the requirement of the ratio  prescribed under GOMs No. 570. (iii)   GOMs No. 200 was a result of decision of the government  independent of the interim order.  The tenor of language of the said  GOMs is not conclusive. (iv)    GOMs No. 200 is merely a logical extension to the decision to  issue second notification to fill up 223 posts. (v)     The contesting candidates cannot oppose issuance of GOMs No.  200 which enable more number of candidates to appear in the main  examination as the number of candidates to be finally called  depended on the accident/ chance of how many candidates could  secure the cut off mark. (vi)    The judgment of this Court in Gopal Krushna Rath v. M.A.A. Baig  (Dead) By LRs. And Others, [(1999) 1 SCC 544] holding that  calling more number of candidates for the interview than permitted  under the rules may result in prejudice to those who are entitled to  be called in accordance with rules must be read in the context of  and in consonance with the judgment in Shankarsan Dash v. Union  of India [(1991) 3 SCC 47] wherein it was laid down that no  candidate participating in the selection process has any  indefeasible and legally enforceable right to be appointed.

       These appeals question the said judgment.

       Mr. P.P. Rao, learned senior counsel appearing on behalf of the  Appellants in Civil Appeal arising out of S.L.P (C) No. 6789 of 2006  submitted:

(i)     GOMs No. 200 dated 30.4.2005 having been issued pursuant to the  interim order passed by the Tribunal on 6.1.2005; having regard to  the fact that the same stood vacated and in any event the original  application having been dismissed by the Tribunal, no effect could  have been given thereto. (ii)    The High Court committed a serious error in opining that the said  GOMs No. 200 was issued pursuant to a conscious decision of the  State independent of the said interim order.   (iii)   The Tribunal having no jurisdiction to reduce the qualifying marks  from 66% to 61% as a result whereof more candidates had  appeared in the Main Examination for recruitment to Group 1  service in relaxation of GOMs No. 570 dated 31.12.1997, the  entire selection process was vitiated in law. (iv)    Although, the Appellants did not have any right to be selected,  they had acquired a legal right to be considered in terms of the  extant rules.   (v)     The impugned judgment of the High Court cannot be sustained as  the Commission acted in violation thereof.

       Mr. L. Nageswara Rao, learned senior counsel appearing on behalf of   Appellants in Civil Appeals arising out of S.L.P (C) Nos. 6516, 7016 and  8275 of 2006 supplemented the submissions of Mr. P.P. Rao urging that  those candidates who were over-aged on the date of the initial notification  could not have been made eligible by reason of a subsequent notification.   The candidates, it was urged, who appeared at the preliminary examination  and the main written examination had a legitimate expectation that the  vacancies which existed on the date of the notification would be filled up in  terms of the extant rules and in relation thereto no vacancy arising in future  could have been taken into consideration.

       Mr. A.K. Ganguli, learned senior counsel appearing on behalf of the  Commission, on the other hand, would draw our attention to the fact that  some of the Appellants did not pass the preliminary examination.  Although  two preliminary examinations one, pursuant to the main notification and

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other pursuant to the supplementary notification, in view of the fact that the  same provided for only one opportunity to all the candidates, viz., to appear  at the main written examination and, thus, the same cannot be said to be  arbitrary or unreasonable.  The decision of the State to fill-up all the  vacancies cannot be faulted with as the said steps were taken as one time  measure.  As the impugned GOMs were issued in terms of the proviso to  Article 309 of the Constitution of India, the validity of the impugned  notifications cannot be questioned as thereby merely the age-bar has been  relaxed.

       It is not in dispute that, at the material time, examination was to be  conducted in terms of the instructions issued by the State of Andhra Pradesh  as contained in GOMs No. 570 dated 31.12.1997.  The advertisement was  also issued by the Commission pursuant to or in furtherance of the said  notification, as would appear from Clause 2(a) of the notification No. 21.  It  was categorically stated:

"The recruitment will be made to the vacancies  notified only.  There shall be no waiting list as per  G.O. Ms. No. 81 and Rule 6 of APPSC Rules.  The  available break-up of vacancies is given in  Annexure \026 I.  However, the breakup is subject to  variation and confirmation by the Unit Officer, till  such time as decided by the Commission and in  any case, no cognizance will be taken by the  Commission of any vacancies arising or reported  after the completion of the selection and  recruitment process, or, the last date as decided by  the Commission, as far as this Notification is  concerned; and any such subsequently arising  vacancies will be further dealt with as per G.O. &  Rule cited above."

       Recruitment to the notified vacancies although was to be considered  but the same was not sacrosanct as the Commission was given liberty to take  into consideration the  vacancies arising at a later date also.  The jurisdiction  of the Commission, however, was only restricted to the extent that it could  not have taken cognizance of any vacancy arising or reported after the  completion of the selection and recruitment process.  What was to be  considered as a subsequent vacancy, in terms of the said rules, thus, would  be such vacancies which arose after completion of the selection and  recruitment process or the last date as decided by the Commission.   

       It is not in dispute that all the candidates who had applied for the said  post were having the requisite educational qualifications.  In terms of the  said advertisement, the selection process was to comprise in three parts, viz.,  (i)     a screening test for the purpose of admitting the candidates to the  main written examination.   (ii)    Holding of main examination for those who would become entitled  to be  admitted to main written examination and, thus, were to be  subjected to the process of selection (iii)   the candidates who obtained minimum qualifying marks in the  written examination, as may be fixed by the Commission at their  discretion, were to be summoned for oral test in the ratio of 1:2  with reference to the number of vacancies duly following the  special representation as laid down in General Rule 22 of Andhra  Pradesh State and Subordinate Service Rules.

       GOMs No. 200 dated 30th April, 2005 was issued by the State.   Although the High Court has opined that the said GOMs was issued upon an  independent decision taken by the State of Andhra Pradesh in that behalf, the  recitals contained therein does not say so.  The notification specifically  referred to the interim direction issued by the Tribunal which was treated to  be a general direction to admit all the candidates who had appeared in the  preliminary examination.   It was in the aforementioned situation only the

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qualifying marks were reduced from 66% to 61% to allow more candidates  for the main examination for recruitment to Group 1 service with reference  to the notification No. 21 of 2003 and the supplementary notification No. 6  of 2004.  The State of Andhra Pradesh, however, did not stop there.  As has  been noticed hereinbefore, subsequent vacancies were also notified.   

       The State thereafter issued GOMs No. 164 dated 6.7.2004, having  regard to the representations purported to have been received by it from the  unemployed candidates to allow age concessions, considering that there had  been long gap in issuing the notification, on taking a purported sympathetic  view in the matter, stating :

"a)     A supplementary notification will be issued  for some more vacancies in addition to the  vacancies already notified in various categories of  posts under Group I Services, under Notification  No. 21/2003 issued on 21-11-2003 by the A.P.  Public Service Commission. b)      For the candidates who could not appear for  recruitment to Group I Services with reference to  Advt. No. 21/2003 issued on 21.11.2003 by the  A.P. Public Service Commission, as they were  over and above the 33 years of age, age concession  will be allowed duly reckoning the age limits  prescribed in the rules, with effect from 1.7.1999  for the Notification No. 21/2003, and also for  supplementary Notification to be issued.  This age  concession is only a one time measure and will not  apply for further recruitments.         The candidates who were within the age  limits, according to rules before the present  concession raising the upper age limit and who  could not apply for the notification issued on  21.11.2003 are also eligible to apply for the posts  to be notified in the supplementary notification. c)      The candidates for the main examination  will be finalized by the Commission from the  common list of candidates qualified both in the  preliminary examination already held and the  preliminary exam to be held as per the  supplementary notification to be issued."

       Ad hoc rule was made by the Governor of Andhra Pradesh in exercise  of the powers conferred by the proviso appended to Article 309 of the  Constitution of India which reads as under :

"Notwithstanding anything contained in the  Andhra Pradesh State and Subordinate Rules or in  the Special Rules for any State Services or the Ad- hoc rules, the maximum age limit prescribed in the  relevant special Rules for appointment by direct  recruitment shall be reckoned as on 1-7-1999  instead of 1-7-2003 in respect of direct recruitment  to Group. I Services Recruitment 2003 notified by  the Andhra Pradesh Public Service Commission  vide their Advertisement No.  21/2003/Supplementary notification.

       This adhoc rule will apply only for the  notification No. 21/2003/Supplementary  notification of A.P. Public Service Commission."

       Yet again, GOMs No. 133 was issued on 23.3.2005, in terms whereof   the State allowed the candidates who had fulfilled the educational and age

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qualification, as per enhanced age limits eligible for recruitment to Group 1  service stating:

"Notwithstanding anything contained in the A.P.  State and Subordinate Service Rules or in the  Special Rules for any State Services or the adhoc  rules, all the eligible candidates who are within the  age limits in terms of the Orders issued in G.O.  164, G.A. (Ser.A) Department, dated 6-7-2004 and  also those candidates who fulfill the Educational  qualification as on the dte of Supplemental  Notification (Notification No. 6/2004 to the Main  Notification No. 21/2003) and who did not apply  earlier are eligible to apply."

       One of the contentions raised before us is as to whether the  aforementioned three notifications are retrospective in nature.  Submission  of Mr. P.P. Rao is that they are only prospective.  We, however, do not  agree.  GOMs No. 570 dated 31.12.1997 did not have any statutory flavour.   The notifications in question were issued by the State in exercise of its  jurisdiction under proviso to Article 309 of the Constitution of India.  In  terms of the said provision, the State indisputably is entitled to issue a  notification with retrospective effect.  GOMs No. 200 indisputably affected  those who had appeared at the examination as by reason thereof qualifying  marks were reduced from 66% to 61%.  Similarly, by reason of GOMs No.  164, the maximum age limit prescribed in the relevant special rules for  appointment by direct recruitment was to be reckoned as on 1.7.1999 instead  of 1.7.2003.  Expressly, the adhoc rule made thereby was made applicable  only in respect of the notification No. 21 of 2003 and the supplementary  notification of the Commission.  Similarly, in terms of GOMs No. 133 dated  23.3.2005 those candidates who were not eligible on the date of issuance of  the first notification became entitled to avail the beneficient provision  thereof as by reason thereof all those who had not applied earlier became  eligible therefor.

       The advertisement issued by the Commission was subject to GOMs  No. 570.  Administrative instructions contained in GOMs No. 570 did not  contain any statutory rules.  Any rule made subsequently by the State will  override the administrative instructions to the extent it was repugnant  thereto.  It is, however, one thing to say that, a retrospective effect was given   to the said rules but it is another thing to say that by reason thereof  accrued  or vested right of a candidate has been taken away.

       We begin our discussions by taking into consideration what would be  a vested right vis-‘-vis an accrued right.

       In Kuldeep Singh v. Govt. of NCT of Delhi [2006 (6) SCALE 588],  this Court observed:

"What would be an acquired or accrued  right in the present situation is the question.

       In Director of Public Works and  Another v. HO PO Sang and Others [(1961) AC  901], the Privy Council considered the said  question having regard to the repealing provisions  of Landlord and Tenant Ordinance, 1947 as  amended on 9th April, 1957.  It was held that  having regard to the repeal of Sections 3A to 3E,  when applications remained pending, no accrued  or vested right was derived stating:

"In summary, the application of the second  appellant for a rebuilding certificate conferred no  right on him which was preserved after the repeal

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of sections 3A-E, but merely conferred hope or  expectation that the Governor in Council would  exercise his executive or ministerial discretion in  his favour and the first appellant would thereafter  issue a certificate.  Similarly, the issue by the first  appellant of notice of intention to grant a  rebuilding certificate conferred no right on the  second appellant which was preserved after the  repeal, but merely instituted a procedure whereby  the matter could be referred to the Governor in  Council.  The repeal disentitled the first appellant  from thereafter issuing any rebuilding certificate  where the matter had been referred by petition to  the Governor in Council but had not been  determined by the Governor."

       In Saurabh Chaudri (Dr.) v. Union of India [(2004) 5 SCC 618], it is  stated: "A statute is applied prospectively only when  thereby a vested or accrued right is taken away and  not otherwise. (See S.S. Bola v. B.D. Sardana) A  judgment rendered by a superior court declaring  the law may even affect the right of the parties  retrospectively."

       The legal position obtaining in this behalf is not in dispute.  A  candidate does not have any legal right to be appointed.  He in terms of  Article 16 of the Constitution of India has only a right to be considered  therefor.  Consideration of the case of an individual candidate although  ordinarily is required to be made in terms of the extant rules but strict  adherence thereto would be necessary in a case where the rules operate only  to the disadvantage of the candidates concerned and not otherwise.  By  reason of the amended notifications, no change in the qualification has been  directed to be made.  Only the area of consideration has been increased.   Those who were not eligible due to age bar in 2003  became eligible if they  were within the prescribed age limit as on 01.07.1999.  By reason thereof  only the field of choice was enlarged.  We would briefly consider the  purport and effect thereof.

       Initially, there had been 301 vacancies.  223 vacancies were later on  added.  1,52,000 applications were received pursuant to the first  advertisement.  About 51,768 applications were filed after issuance of the  impugned GOs.  By reason of the subsequent GOs, however, those who had  appeared in the first preliminary examination were debarred from appearing  in the second examination.  The reason therefor is not far to seek.  The result  of the first preliminary examination had not been announced.  A combined  result was announced both in respect of the first preliminary examination as  also the second preliminary examination.  Both the examinations were held  to be a part of the same recruitment process.  It may be that in relation  thereto different question papers were set or different examiners examined  them but it must be borne in mind that the said examinations were held only  for the purpose of elimination of candidates.  The result of the said  examination was not to affect the ultimate selection process.   

       We may at this juncture examine some of the decisions whereupon  reliance has been placed by the learned counsel.         In Umesh Chandra Shukla v. Union of India and Others [(1985) 3  SCC 721], the candidates were admitted to the viva-voce test by the  Selection Committee.  It is at that stage names of certain candidates, whose  names had not been included in the Select List, were included in the final list  of the Selection Committee and the names of certain candidates who had  been interviewed by the Selection Committee had been omitted therefrom  

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This Court in the aforementioned fact situation opined:

"\005The area of competition which the 27  candidates who had been declared as candidates  eligible to appear at the Viva Voce examination  before such moderation had to face became  enlarged as they had to compete also against those  who had not been so qualified according to the  Rules. The candidates who appear at the  examination under the Delhi Judicial Service Rules  acquire a right immediately after their names are  included in the list prepared under Rule 16 of the  Rules which limits the scope of competition and  that right cannot be defeated by enlarging the said  list by inclusion of certain other candidates who  were otherwise ineligible, by adding extra marks  by way of moderation. In a competitive  examination of this nature the aggregate of the  marks obtained in the written papers and at the  Viva Voce test should be the basis for selection\005"

       This Court found a blatant violation of Rule 16 of the Delhi Judicial  Service Rules, 1970 which had limited the scope of competition.  In the  instant case, the scope of the competition has not been limited by enlarging  the field of consideration.

       In N.T. Devin Katti and Others v. Karnataka Public Service  Commission and Others [(1990) 3 SCC 157], this Court was concerned with  a situation where the advertisement expressly stated that selection would be  made in accordance with the existing rules or government orders.  In that  case, it had categorically been stated that a candidate on making application  for a post pursuant to an advertisement does not acquire any vested right of  selection.  Once, however, he is found to be eligible and he is otherwise  qualified in accordance with the relevant rules, he acquires a vested right of  being considered for selection in accordance with the rules as they existed.   

       With a view to understand the implication of the ratio laid down in the  said case, we may notice the factual matrix obtaining therein.  The  Appellants therein were in service of the State Government.  They had  applied for selection pursuant to the said advertisement.  Written  examination and viva-voce test had been held.  The list of successful  candidates was finalized.  It was also notified in Karnataka Gazette.  An  additional list of successful candidates had also been finalized.  However,  the said list was not approved by the State on the ground that its reservation  policy has not been made in accordance with the directions and procedures  issued subsequently, i.e., on 9th July, 1975 whereas the advertisement was  issued on 23rd May, 1975.  The matter relating to reservation was provided  under the statutory rules.

       The direction of the State to issue a fresh list on the Commission,  therefore, came to be questioned.  It was in the aforementioned situation, the  law was laid down to the effect that the Appellants therein acquired some  right for being considered for selection in view of the rules as they existed  on the date of advertisement.  However, we may notice that no law in  absolute terms was laid down therefor.  This Court categorically held:

"\005If the recruitment Rules are amended  retrospectively during the pendency of selection, in  that event selection must be held in accordance  with the amended Rules. Whether the Rules have  retrospective effect or not, primarily depends upon  the language of the Rules and its construction to  ascertain the legislative intent. The legislative  intent is ascertained either by express provision or

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by necessary implication; if the amended Rules are  not retrospective in nature the selection must be  regulated in accordance with the rules and orders  which were in force on the date of advertisement.  Determination of this question largely depends on  the facts of each case having regard to the terms  and conditions set out in the advertisement and the  relevant rules and orders\005"

       In that case it was held that the Government Order dated 9th July, 1975  made the Government’s intention clear that the revised directions which  were contained therein would not apply to the selections in respect of which  advertisement had already been issued and, therefore, the mode of selection  as contained in Annexure 2 of the said Order was not applicable to the  selection for filling 50 posts of Tehsildars pending before the Commission.   A list, thus, validly prepared, could not have been directed to be changed  because of a policy adopted by the State which was not applicable.

       In Shankarsan Dash (supra), this Court stated the law in the following  terms:

"It is not correct to say that if a number of  vacancies are notified for appointment and  adequate number of candidates are found fit, the  successful candidates acquire an indefeasible right  to be appointed which cannot be legitimately  denied. Ordinarily the notification merely amounts  to an invitation to qualified candidates to apply for  recruitment and on their selection they do not  acquire any right to the post. Unless the relevant  recruitment rules so indicate, the State is under no  legal duty to fill up all or any of the vacancies.  However, it does not mean that the State has the  licence of acting in an arbitrary manner. The  decision not to fill up the vacancies has to be taken  bona fide for appropriate reasons. And if the  vacancies or any of them are filled up, the State is  bound to respect the comparative merit of the  candidates, as reflected at the recruitment test, and  no discrimination can be permitted. This correct  position has been consistently followed by this  Court, and we do not find any discordant note in  the decisions in State of Haryana v. Subhash  Chander Marwaha, Neelima Shangla v. State of  Haryana, or Jatendra Kumar v. State of Punjab."

       [See also Food Corpn. of India and Others v. Bhanu Lodh and Others  (2005) 3 SCC 618 and Punjab State Electricity Board and Others v. Malkiat  Singh (2005) 9 SCC 22]

       What is, therefore, required to be seen is as to whether the action of  the State is arbitrary.

       Strong reliance has been placed by Mr. P.P. Rao on Hoshiar Singh v.  State of Haryana and Others [1993 Supp (4) SCC 377] wherein it was  observed:

"\005The appointment on the additional posts on the  basis of such selection and recommendation would  deprive candidates who were not eligible for  appointment to the posts on the last date for  submission of applications mentioned in the  advertisement and who became eligible for  appointment thereafter, of the opportunity of being  considered for appointment on the additional posts

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because if the said additional posts are advertised  subsequently those who become eligible for  appointment would be entitled to apply for the  same\005"        

Selection in that case was for police service.  Selection had been made  in excess of requisition in violation of Rule 12.6 of the Punjab Police Rules,  1934.  Standard of physical fitness was relaxed by the Selection Committee  which power in terms of the advertisement it did not possess.  There was  nothing on record to show that the Director General of Police had sent any  further requisition apart from the 8 posts for which the notification was  issued and it was in that situation this Court opined that the Board on its own  could not recommend names of 19 persons for the selection and  recommendation of larger number of persons than the posts for which  requisition was sent.

In Gopal Krushna Rath (supra), the question which arose for  consideration was in regard to the qualification of the Appellant for being  appointed to the post of Professor at the relevant time.  On fact it was held  that the Appellant did possess the requisite qualification which was in  accordance with the rules / guidelines then in force.  He had also obtained  higher marks than the original Respondent at the selection.  It was in the  aforementioned situation, this Court held that the subsequent change in the  requirements regarding qualification by the University Grant Commission  would not affect the process of selection which had already commenced.    In this case, however, the private Respondents concerned cannot be  said to have no qualification on the date of advertisement.   

Strong reliance has also been placed by Mr. P.P. Rao on Maharashtra  State Road Transport Corpn. and Others v. Rajendra Bhimrao Mandve and  Others[(2001) 10 SCC 51].  In that case, the rule of game said to be involved  was in terms of circular issued by the State.  No statutory rule or requisition  was governing the field.  A question arose as to which circular would apply.   The contention of the Respondent was that the circular dated 4.4.1995 would  apply providing for assignment of 87=% marks for written/ trade test and  12=% for the oral test (personal interview) which was accepted having  regard to the fact that the driving test had been conducted on 27.11.1995  and, therefore, the circular letter which was issued on 24.6.1996 providing  for a different standards was held to be not applicable, as on fact it was  found that the other circulars issued have no application in respect of the  driving tests held for appointment of the drivers.  In the aforementioned fact  situation, it was opined:  

"\005Therefore, the High Court cannot be said to be  correct in holding that the circular order dated 24- 6-1996 is illegal or arbitrary or against the orders  of the State Government or the resolution of the  Board of the Transport Corporation. Instead, it  would have been well open to the High Court to  have declared that the criteria sought to be fixed by  the circular dated 24-6-1996 as the sole  determinative of the merit or grade of a candidate  for selection long after the last date fixed for  receipt of application and in the middle of the  course of selection process (since in this case the  driving test was stated to have been conducted on  27-11-1995) cannot be applied to the selections  under consideration and challenged before the  High Court\005"

The said decision is, thus, also not an authority for the proposition that  a subsequent circular would not per se be illegal or invalid.  The court in all  situations of this nature is required to consider only the applicability thereof.

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In Union Public Service Commission v. Gaurav Dwivedi and Others  [(1999) 5 SCC 180], this Court held:

"We are unable to agree with this contention. Once  it is considered, and in our opinion rightly so, that  the number of vacancies to be filled could be  reduced then the rules do not stipulate that the  entire process of examination must be completed,  including the conduct of the interview/viva voce,  on the basis of the original number of vacancies  which were notified. When before the declaration  of the result of the main examination, the number  of vacancies have been determined then it was  only proper that candidates who are twice the  number of revised vacancies are called for  interview and not more. It is to be borne in mind  that this is a competitive examination with the  number of vacancies being 470 only, 940  candidates were required to be called for interview.  By calling more than this number may result in  prejudice to one or more of the candidates who  were in the position of 940 or above. For example,  it is possible that a candidate at Serial No. 941,  who is not entitled to be called for interview, if he  is permitted to be called for interview, may secure  higher marks in the viva voce and oust those  candidates who were higher in rank to him in the  merit list. The High Court, in our opinion, was not  right in permitting more than 940 candidates being  called for interview/viva voce."

We may, however, notice that in Ashok Kumar Sharma and Another  v. Chander Shekher and Another [1993 Supp (2) SCC 611], advertisement  was issued on 9.6.1982.  The last date of submission of applications was 15th  July, 1982.  The Appellants and the Respondents by that date had submitted  applications.  The Appellants, however, had appeared for B.E. Civil  Examination.  Its results, however, was not published.  Rule 37 of the J&K  Public Service Commission Business Rules reads, thus:

"Applications of candidates who have appeared in  the examination, the passing of which may make  them eligible to appear in an interview for  recruitment to a post to be made otherwise than by  a competitive examination, but results whereof  have not been declared up to the date of making of  the application, may be entertained provisionally,  but no such candidate shall be permitted to take the  interview if he is declared as having failed in the  examination or if the results are not available on  the date the viva-voce test is held."

In terms of the said Rules, therefore, the Appellants were found to be  eligible although he did not pass the examination on the date thereof.  It was  in that situation, the Appellants were held to be eligible.

In this case, we are dealing with a peculiar situation.  The Government  took a sympathetic view about the fate of those candidates who could not be  accommodated earlier.  Such consideration was made to broad-base the field  of selection in view of the fact that since 1997 there had been no further  recruitment.  It is also not in dispute that the vacancies were notified from  time to time as they were brought to the notice of the concerned department  by the other departments.

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The authority of the State to frame rules is not in question.  The  purport and object for which the said notifications were issued also cannot  be said to be wholly arbitrary so as to attract the wrath of Article 14 of the  Constitution of India.  The Appellants herein no doubt had a right to be  considered but their right to be considered along with other candidates had  not been taken away.  Both the groups appeared in the preliminary  examination.  Those who had succeeded in the preliminary examination  were, however, allowed to sit in the main examination and the candidature  of those had been taken into consideration for the purpose of viva-voce test  who had passed the written examination.   

The question, however, remains as to whether the State could reduce  the cut-off marks.  If the cut-off mark specified by the State is arbitrary,  Article 14 would be attracted.  The Tribunal did not have any jurisdiction to  pass an interim order directing reduction in the cut-off mark.  The cut-off  mark at 66% was fixed having regard to the ratio of the candidates eligible  for sitting at the written examination at 1:50.  An interim order as is well- known is issued for a limited purpose.  By reason thereof, the Tribunal had  no jurisdiction to grant a final relief.   

Moreover, the Tribunal could not have directed the Commission to do  something which was contrary to rules.  An interim order is subject to  variation or modification.  An interim order would ordinarily not survive  when the main matter is dismissed.  The Commission also did not intend to  abide by the said directions.  It wanted the State to pass an appropriate order.   It was, pursuant to or in furtherance of the said desire of the Commission as  also the direction of the Tribunal as contained in its interim order dated  6.1.2005, GOMs 200 was issued.  The said Government Order was, thus, not  issued by the State of its own.  There was no independent application of  mind.  The statutory requirements for passing an government order  independent of the interim directions issued by the Tribunal were wholly  absent.

In Gaurav Dwivedi (supra), this Court categorically held the  possibility that a person who was otherwise entitled to be called for an  interview may lose its chance if the others who were not eligible are called  for interview.  

The standard was fixed as 1:50.  The Commission came to the  conclusion, having regard to the results published on written examination,  that 66% should be the cut-off mark.  It need not have been 66%.  If the  candidature of more candidates was to be taken into consideration, the same  would mean that the State shall give a go by to principle of selection fixed  by it, viz., 1:50.  If the submission of the Commission and consequently, the  State is to be accepted that the ratio should be 1:50, the same could not have  been reduced to 10:90.  A violation of that rule would, in our opinion, be  arbitrary.

In total 558 vacancies were notified.  Thus, only 27,900 candidates  could have been called for main written examination on the basis of the  norms fixed by the State itself.  However, the actual number of candidates  who passed the examination are said to have been 50,726.  Although,  actually it is stated that 32,056 candidates appeared.  Thus, indisputably, a  large number of candidates who had been allowed to appear at the  examination were evidently permitted to do so in violation of norm of 1:50,  as was specified by the State.  The aforementioned rule could not have been  relaxed.  It did not have any rational basis.  66% cut-off mark was not fixed  by the Commission.  It was arrived at by the Commission in view of the  marks secured by the respective candidates on applying the ratio of 1:50.   Once a person falls beyond the said ratio, he was not qualified.  He was not  to be considered any further.  The State and the Commission had themselves  fixed three different stages of selection process which were required to be  adhered to.

We may notice at this stage Suraj Parkash Gupta and Others v. State

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of J&K and Others [(2000) 7 SCC 561], wherein it was held:

"The result of the discussion, therefore, is that the  wholesale regularisation by order dated 2-1-1998  (for the Electrical Wing), by way of implied  relaxation of the Recruitment Rule to the gazetted  category is invalid. It is also bad as it has been  done without following the quota rule and without  consulting the Service Commission. Further, the  power under Rule 5 of the J&K (CCA) Rules,  1956 to relax the Rules cannot, in our opinion, be  treated as wide enough to include a power to relax  rules of recruitment."

Relaxation can be given only if there exists any provision therefor in  the Rules.  GOMs No. 200 dated 30th April, 2005, in our opinion, must fall  having regard to the vacation of interim order by the Tribunal and  consequent dismissal of the original application.  It will bear repetition to  state that, while issuing the same, the Government did not apply its own  mind.  Only those candidates who came within the purview of the rule  existing theretobefore could have been subjected to further selection process.

For the foregoing reasons, we are of the opinion that while GOMs  No. 164 and 133 are not invalid, GOMs No. 200 is.  The Commission was,  thus, statutorily enjoined to interview only such candidates who had passed  the written examination in 1:50 ratio.  Only upon shortlisting the said  candidates, the interview can be held at the ratio of 1:2.   

To the aforementioned extent, the Commission must undertake  selection process afresh.  We, however, make it clear that those who have  not passed the written examination would not be entitled to be considered in  terms of the aforementioned directions.  The appeals are allowed to the  aforementioned extent.  No costs.