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CASE NO.: Appeal (civil)  1775 of 2005

PETITIONER: Secretary, A.P. Public Service Commission                

RESPONDENT: B. Swapna and Ors.                                                       

DATE OF JUDGMENT: 16/03/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 23510/2003  

ARIJIT PASAYAT, J.

Leave granted.

The 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’).  

       The controversy involved in the present appeal arises in the  following background:         The 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.  Therefore, 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: Zone                    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.  

The selections were finalised on 2.7.1996.

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                According 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:

       "The 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:          "The 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:

"In 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

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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.  

       In 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.

       Learned 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.  Her case can be considered in the peculiar facts of the case by  relaxation of norms.   

       There are two principles in service laws which are indisputable.  Firstly, 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.  The vacancies in the different zones were as follows:

       Zone 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.  The selection list was operative till 1.7.1997. The 14 vacancies which  were indented on 14.4.1997 were as follows:

       Zone 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.

The 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:                                                                  "25. From the above discussion of the case-law it  becomes clear that the selection process by way of

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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.  26. In 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.  But as 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).         The 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

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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 544).  

       Another 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.  Once 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.  

       In State of U.P. v. Rafiquddin and Ors. (1987 (Supp) SCC 401), it  was inter alia, held as follows:  

"Before 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 Rules.  Once the Commission determines the norms and makes

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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:

"It 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."

       In Dr. Krushna Chandra Sahu and Ors. v. State of Orissa and Ors.  (1995(6) SCC 1), it was held as under:  

"34. 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."

35. 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.  

36. It 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 selection."  

The 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

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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.  The 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.