ARUNACHAL PRADESH PUBLIC SERV.COMM. vs. TAGE HABUNG .

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4168 OF 2013 [Arising out of Special Leave Petition (C) No.3036 of 2009] Arunachal Pradesh Public Service Commission & Another … Appellant(s) Vs. Tage Habung & Ors. … Respondent(s) J U D G M E N T M.Y.EQBAL,J. JUDGMENT Leave granted. 2. This appeal is directed against the judgment and order th dated 7 January, 2009 passed by a Division Bench of the Gauhati High Court on a reference made to it by the Hon’ble th Chief Justice pursuant to the order dated 19 November, 2008 of a learned Single Judge to answer the question as to Page 1 2 th whether the Office Memorandum dated 7 January, 2008 issued by the Government of Arunachal Pradesh and adopted th by the Arunachal Pradesh Public Service Commission on 16

secured in each written examination papers in the Arunachal Pradesh Public Service Combined Competitive Examination (Main) 2006-07 (in short, “the Main Examination”) conducted by the Arunachal Pradesh Public Service Commission for recruitment into various posts in Grade-A and Grade-B under the Government of Arunachal Pradesh, is permissible after commencement of the recruitment process and applicable to the candidates who already took the Main Examination th initiated in pursuance of the advertisement dated 25 July, JUDGMENT 2006 for such recruitment. 3. The facts of the case are that the Arunchal Pradesh Public Service Commission (in short, “the Commission”) th issued an advertisement dated 25 July, 2006 inviting applications for admission to the Arunachal Pradesh Public Service Combined Competitive Examination (Preliminary) Page 2 3 2006-07 for recruitment to Group-A and Group-B posts under the Government of Arunachal Pradesh. A decision was taken th by the Commission on 13 June, 2007 fixing a minimum cut-

be decided by the Commission in every written examination for recruitment to the posts and a notification to that effect nd was issued on 2 July, 2007. The Main Examination th commenced on 26 December, 2007 and the Commission th vide its Notification dated 11 July, 2008 published a list of candidates who had qualified in General English by securing 40% marks. However, prior to the completion of the Main th Examination, an Office Memorandum dated 7 January, 2008 (in short, “the O.M.”) had been issued by the State JUDGMENT Government declaring the cut-off marks as 33% or more for all subjects in each written examination. 4. The unqualified candidates filed a writ petition being W.P. th No. 271 (AP) of 2008 on 25 July, 2008 challenging the th decision dated 13 June, 2007 of the Commission and the th Notification dated 11 July, 2008 publishing the list of candidates who had qualified in General English by securing Page 3 4 40% marks. The learned Single Judge of the High Court vide th order dated 30 September, 2008 while allowing the writ petition held that the power for fixing the minimum

Examination is in respect of all the subjects/papers and no power has been given under the provision of Rule 11 of Arunachal Pradesh Public Service Combined Civil Service Examination Rules, 2001 to the Commission to fix a minimum qualifying marks in respect of a particular subject/paper. It was directed by the learned Single Judge that the Commission shall evaluate the marks secured by the candidates in all the papers/subjects of Main Examination on the basis of cut-off marks fixed by the State Government by JUDGMENT way of policy decision reflected in the aforesaid O.M. and on the basis of evaluation of answer scripts of all the papers/subjects, shall call the candidates for the viva voce test on merit and prepare a final seniority list on merit on the basis of marks secured in the Main Examination consisting written and viva voce tests. In para 12 of the order, the learned Judge observed:- Page 4 5

“Candidates who obtain such minimum qualifying marks in the preliminary examination as may be fixed by the commission at their discretion shall be admitted to the main examination and candidates who obtain such minimum marks in the main (written) examination as may be fixed by the commission at their discretion shall be summoned by them for an interview for personality and others tests” The rule contemplates that the commission has to fix minimum qualifying marks in the preliminary examination and those candidates who secure the minimum qualifying marks shall be admitted to the main examination. The commission under the aforesaid rule is also required to fix the minimum qualifying marks in the mains (written) examination and the candidates who secure such marks shall be called for in the interview for personality and other tests (viva-voce test). The power for fixing the minimum qualifying marks both in the preliminary examination and main examination is in respect of all the subject/papers. No power has been given under the provision of the aforesaid rule to the commission to fix a minimum qualifying mark in respect of a particular subject/paper. This rule contemplates that the JUDGMENT Page 5 6

5. At this stage, it is worth to mention here that another writ petition being W.P. No. 101 of 2008 had been filed relating to the appointment on the post of Veterinary Officer JUDGMENT th pursuant to the advertisement dated 19 December, 2006 published by the Commission. The candidates appeared in the written test held in the month of June 2007. However, before declaring the result of the written test, the th Government came with a Memorandum dated 7 January, 2008 prescribing that the candidate must secure minimum Page 6 7 33% marks in each written examination and 45% marks in aggregate to be eligible for viva voce test. As the petitioners failed to secure 33% marks in English subject, they were not

question that came up for consideration before the High th Court was whether the O.M. dated 7 January, 2008 can at th all be applied. The High Court vide order dated 24 June, 2008 held that:- JUDGMENT “9. Be that as it may, the established legal position is that the amendment is always prospective. On the basis of this settled legal position, I hold that the additional criteria evolved under O.M. dated 07.01.2008 shall not be applicable for calling the present Writ Petitioners for viva voce test provided they are otherwise eligible for the interview as per the guidelines and criteria of selection prevailing as on the date of advertisement, i.e. 19.12.2006. Page 7 8

th 6. However, in compliance of Court’s order dated 30 September, 2008 passed in W.P. No. 271 of 2008, the th Commission vide Notification dated 14 October, 2008 published the list of candidates who had secured a minimum of 33% marks in each written examination paper and who had secured 45% marks out of the aggregate total marks in JUDGMENT the written examination papers. Thereafter, the respondents herein filed a writ petition being No. 417 of 2008 (renumbered at Principal Seat as Writ Petition (C) No. 4902 of th 2008) challenging the O.M. dated 7 January, 2008. Meanwhile, the Commission completed the selection process and declared the results of viva voce test vide Notification Page 8 9 th dated 17 January, 2009 pursuant to which 100 candidates were selected for the posts. 7. In the above-mentioned W.P. No.417 of 2008 as stated

2008 on the ground inter alia that the condition to secure 33% in each individual paper to be qualified for the viva voce test unreasonably restricted the right of the petitioners of being tested in the interview. Further case of the petitioners was that while in the advertisement for the Combined th Competitive Examination dated 25 July, 2006 there was no restriction nor there was any restriction in the rule, then such th restriction cannot be imposed by the O.M. dated 7 January, 2008. The learned Single Judge, while hearing the writ JUDGMENT petition (W.P. No. 417 of 2008) felt that the issue raised can only be resolved after determining the conflicting views taken in the earlier two writ petitions (W.P. No. 101 of 2008 and W.P. No. 271 of 2008) by the coordinate benches. The learned Single Judge, therefore, requested the Chief Justice to refer the matter to Division Bench. The matter was, accordingly, referred to the Division Bench. Page 9 10 8. The Division Bench formulated the question as to th whether the Office Memorandum dated 7 January, 2008 issued by the Government of Arunachal Pradesh and adopted

prescribing the cut-off marks of 33% or more to be secured in each written examination paper in the Arunachal Pradesh Service Combined Competitive Examination (Main) 2006-07 conducted by the Commission for recruitment into various posts in Grade-A and Grade-B under the Government of Arunachal Pradesh, is permissible after commencement of the recruitment process and applicable to the candidates who already took the Main Examination initiated in th pursuance of the advertisement dated 25 July, 2006 for JUDGMENT such recruitment. The Division Bench vide impugned th judgment and order dated 7 January, 2009 answered the reference as under:- “33. From careful consideration of the extensive arguments so advanced on behalf of the parties narrated herein above and also having gone thoroughly the entire material available on record. Page 10 11

34. Having read and considered both the impugned O.M. dated 07.01.2008 and the notification dated 16.04.2008 which were published after the completion of the main examination and also having regard to the ratio laid down in A.A. Calton’s case (supra) and Sushil Kumar Ghosh’s case (supra) we have no hesitation to say that the impugned O.M. dated 07.01.2008 and subsequent adoption of the same vide notification dated 16.04.2008 cannot be made operative in the midst of continuation of selection process which has been initiated pursuant to the advertisement dated 25.072006. JUDGMENT 35. Situated thus, we do agree with the view expressed in W.P. (C ) No. 101(AP) of 2008 disposed of on 24.06.2008 as well as in paragraph 12 of the judgment and order dated 30.09.2008 recorded in W.P. (C) No. 271 (AP) of 2008. We do hold that the impugned O.M. dated 07.01.2008 shall not come in way of selection of the Writ Petitioners.” Page 11 12 9. Before deciding the issue, we would like to refer to th the advertisement dated 25 July, 2006, the 2001 Rules, the th th O.M. dated 7 January, 2008 and the Notification dated 16 April, 2008. th 10. By the advertisement dated 25 July, 2006, applications were invited by Arunachal Pradesh Public Service Commission for admission to the Combined Competitive Examination (Preliminary) 2006-07 for recruitment to Group A and Group B posts/services of the Government of Arunachal Pradesh. In the said advertisement, the required criteria like eligibility i.e. age limit, educational qualifications, physical standard, physical fitness and other requirements had been prescribed. JUDGMENT Indisputably, there is no mention of minimum marks to be obtained in the Preliminary Examination for being qualified to appear in the Main Examination. 11. In exercise of power conferred by the proviso to Article 309 of the Constitution of India, the Governor of Arunachal Pradesh made the Rules regulating the Page 12 13 recruitment to certain posts/services, namely, Arunachal Pradesh Public Service Combined Competitive Examination Rules, 2001. Rule 2(a) defines the term ‘Combined

conducted by the Arunachal Pradesh Public Service Commission for recruitment to the services and posts mentioned in Schedule-I and includes both the Preliminary Examination and the Main Examination. Rule 3 of the said Rules dealing with Combined Competitive Examination reads as under:- “3(1) Notwithstanding anything contained in the Arunachal Pradesh Civil Service Rules, 1995 the Arunachal Pradesh Police Service Rules, 1989, the Arunachal Pradesh Labour Service Rules, 1991 and any other service Rules relating to services and posts mentioned in Schedule-I, the Commission shall hold Combined Competitive Examination every year for selection of candidate for recruitment to the services in accordance with procedure laid down in the Schedule-II. JUDGMENT (2) The Commission shall, after the main examination, prepare a merit list of candidates and forward such list to the Government for appointment to different Page 13 14 services under the respective services Rules.”

Pradesh Public Service Commission Examination Rules, 2001. Rules 11 and 12 which are relevant are quoted hereinbelow:- “11. Candidates who obtain such minimum qualifying marks in the Preliminary Examination as may be fixed by the Commission at their discretion shall be admitted to the Main Examination, and candidates who obtain such minimum marks in the Main (Written) Examination as may be fixed by the Commission at their discretion shall be summoned by them for an interview for personality and other tests. JUDGMENT (emphasis given) Provided that the candidates belonging to APST may be summoned for an interview for a Test as stated above by the Commission by applying relaxed standard of less marks upto 10% if it is found by the Commission that sufficient number of candidates from these communities are not likely to be summoned for interview on the basis of Page 14 15 general standard in order to fill up vacancies reserved for them.

It is further provided that the candidates applying for the post of Arunachal Pradesh Service and called to the interview shall be required to undergo physical standard test as prescribed in Appendix-III. 12. After the interview the candidates will be arranged by the Commission in order of merit as disclosed by the aggregate marks finally awarded to each candidate in the Main Examination (Written Examination and the Interview put together) and in that order so many candidates as are found to be qualified by the Commission at the Examination shall be recommended for appointment upto such number as may be decided by the Commission keeping in view the number of vacancies. JUDGMENT Provided that the candidates belonging to APST shall be recommended in accordance with provision of Govt. Order No.OM-12/20 dated 10/10/2000.” Page 15 16 th 13. The O.M. dated 7 January, 2008 which is relevant reads as under:-

JUDGMENT Page 16 17 nor such procedures have been prescribed in the relevant Recruitment Rules.

JUDGMENT 2) The candidates securing a minimum of 33% or more marks in each written examination papers and has secured 45% of marks out of aggregate total marks in the written examination papers shall be eligible for viva-voce test. On the other, it will further mean that selection for viva-voce test shall be based on the aggregate total marks secured in the written examination Page 17 18 papers and subject to ratio of 1:3. The candidates securing less than 33% of marks in any written examination paper shall not be eligible for appearing in the viva-voce test.

Therefore, all the appointing authorities are requested to comply with the above guidelines while conducting recruitment examination for appointment to Group ‘A’ ‘B’ & ‘C’ level of posts/services. (Y.D. Thongehi) Secretary (AR) Government of Arunchal Pradesh” JUDGMENT 14. On perusal of Rule 11 of Arunachal Pradesh Public Service Combined Competitive Examination Rules, 2001 (in short, “the Rule”) it is manifest that the Commission reserve its right to fix at their discretion the minimum qualifying marks both in the Preliminary Examination and the Main Written Examination. The Rule does not mandate the Page 18 19 Commission to fix and to disclose the minimum qualifying marks in the Preliminary Examination and Main Examination either in the advertisement or before conducting the

Commission is empowered to shortlist the candidates and to summon them for an interview for personality and other tests. However, the Rule does not empower the Commission to fix qualifying marks in viva voce test which has rightly not been done by the Commission. As per Rule 12, after the interview the candidates will be arranged by the Commission in order of merit as disclosed by the aggregate marks finally awarded to each candidate in the main examination (written examination and interview put together). JUDGMENT th 15. On the basis of the aforesaid O.M. dated 7 January, th 2008, a Notification dated 16 April, 2008 was issued by the Commission adopting the said O.M. The said Notification th dated 16 April, 2008 is quoted hereinbelow:- “ NOTIFICATION Page 19 20

However, ratio of 1:3 shall not apply in case the candidates appearing the written examination is less than 3 times of the number of vacancies. In case of the candidates appearing in the written examination is less than 3 (three) times of the number of vacancies, all the candidates securing 33% of marks in each written examination papers shall be eligible for appearing viva-voce test. JUDGMENT 2. The candidates securing a minimum of 33% or more marks in each written examination papers and has secured 45% of marks out of aggregate total marks in the written examination papers shall be eligible for viva-voce test. On the Page 20 21

3. The Selection Committee or Commission may lower the ‘cut-off marks’ of 45% to certain extent, in case of non-availability of Arunachal Pradesh Scheduled Tribe candidates securing the ‘cut-off marks’” Sd/- (R. Ronya) Secretary” 16. In the meantime, as noticed above, the th aforementioned O.M. dated 7 January, 2008 issued by the JUDGMENT State Government was challenged in Writ Petition No.101 of 2008 on the ground that the writ petitioners appeared in the written examination held in June 2007 in pursuance of th advertisement dated 19 December, 2006 for the post of Veterinary Officers but were not selected for the interview as they could not obtain the qualifying marks of 33% prescribed Page 21 22 th in the said O.M. dated 7 January, 2008. The learned Single th Judge by judgment dated 24 June, 2008 allowed the writ th petition and held that the O.M. dated 7 January, 2008 shall

th recruitment process initiated prior to 7 January, 2008. th 17. On 11 July, 2008 the Commission after conclusion of the Main Examination published a list of candidates who had been found qualified in General English paper by securing 40% marks. The candidates who did not secure 40% marks filed a writ petition being W.P. No.271 of 2008 th challenging the result declared on 11 July, 2008 and also the decision of the Commission fixing 40% marks in English subject for the purpose of appearing in the Main JUDGMENT Examination. Learned Single Judge in terms of judgment th dated 13 September, 2008 allowed the writ petition and th quashed the decision dated 13 June, 2007 and directed the Commission to evaluate the marks secured by the candidates in all the papers of Main Examination on the basis of cut-off marks fixed by the State Government in the O.M. Page 22 23 th dated 7 January, 2008 which subsequently got adopted by th the Commission vide Notification dated 16 April, 2008. 18. In compliance of the aforesaid order, result of the

th October, 2008 on the basis of the O.M. dated 7 January, 2008 as per the direction of the Single Judge made in Writ Petition No.271 of 2008. 19. Those candidates who did not even secure 33% marks and whose results were not published filed a writ petition being Writ Petition No.417 of 2008 challenging the th O.M. dated 7 January, 2008 on the ground inter alia that the condition to secure 33% in each individual paper to be qualified for the viva voce test unreasonably restricted their JUDGMENT right for appearing in the viva voce test. The said writ petition was ultimately referred to the Division Bench for deciding the issue in view of the conflicting decisions taken by the coordinate benches of the High Court in W.P.No.101 of 2008 and W.P. No.271 of 2008. As noticed above, the Division Bench in the impugned order relied upon the decision of this Court in Calton’s case ( supra ) and its own Page 23 24 decision in Sushil Kumar Ghosh vs. State of Assam & Others , 1993 (1) GLR 315 and held that the impugned th O.M. dated 7 January, 2008 and its subsequent adoption

operative in the midst of the selection process which has th been initiated pursuant to the advertisement dated 25 July, 2006. The Division Bench consequently held that the th impugned O.M. dated 7 January, 2008 shall not come in the way of the writ petitioners. 20. Before appreciating the view taken by the Division Bench, we would like to refer the ratio decided in Calton’s case and Sushil Kumar Ghosh’s case ( supra ). 21. In Calton’s case , the validity of the appointment JUDGMENT of respondent No.2 as the Principal of a College which was a minority institution was challenged mainly on the ground that the power of the Director to make an appointment had been taken away by reason of the amendment made in the U.P. Intermediate Education Act. Further, the Director could not have appointed respondent No.2 for the post since his selection had been disapproved earlier by the Deputy Page 24 25 Director. This Court although dismissed the appeal observed as under :-

JUDGMENT Page 25 26

22. In Sushil Kumar Ghosh’s Case , the High Court reiterated the principles laid down in Calton’s Case holding JUDGMENT that after the commencement of selection process if the amendment of the rules was made prospectively changing the eligibility criteria, amending the rules would not affect the selection and appointment as the selection process which had already commenced had to be completed in Page 26 27 accordance with law as it stood at the time of commencement of the selection. 23. With due respect, in our opinion the ratio decided by this Court in Calton’s case and reiterated in Sushil Kumar Ghosh’s case will not apply in the facts and circumstances of the present case. At the very outset, we agree with the view taken in the instant case that the decision taken by the Commission vide Notification dated th 13 June, 2007 fixing the cut-off marks as 40% in English as qualifying marks was un-reasonable and unjustified. th However, the decision dated 13 June, 2007 was not given effect because of the subsequent O.M. issued by the State th Government dated 7 January, 2008 and adopted by the JUDGMENT th Commission vide Notification dated 16 April, 2008. The only question, therefore, that falls for consideration is as to whether the appellants were justified in fixing the minimum 33% qualifying marks in all the subjects in order to appear in the viva voce test. Indisputably, no separate qualifying marks were prescribed for qualifying in the viva voce test. Page 27 28 24. In the case of K.H. Siraj vs. High Court of Kerala & Ors., (2006) 6 SCC 395, the High Court of Kerala th by its Notification dated 26 March, 2001 invited

Magistrate in the Kerala Judicial Services. Some of the candidates were not selected as they had not secured the prescribed minimum marks in the interview. They challenged the said selection on the ground that in the absence of specific legislative mandate under Rule 7(i) of the Kerala Judicial Service Rules, 1991 prescribing cut-off marks in the oral examination, the fixing of separate minimum cut- off marks in the interview for further elimination of candidates after a comprehensive written test was violative JUDGMENT of the statute. While answering the question, this Court held:- “50. What the High Court has done by the notification dated 26-3-2001 is to evolve a procedure to choose the best available talent. It cannot for a moment be stated that prescription of minimum pass marks for the written examination or for the oral examination is in any manner irrelevant or not having any nexus to the object sought to be achieved. The Page 28 29

JUDGMENT 25. In the case of Hemani Malhotra Etc. vs. High Court of Delhi, (2008) 7 SCC 11, an advertisement was Page 29 30 made for appointment in the Higher Judicial Service. The advertisement inter alia prescribed the procedure, specially in the matter of securing 55% marks in the written

reserved category. The written examination was conducted, but the result was not declared. However, the petitioners received letter for appearing in the interview. Since the result of the examination was not declared, no merit list of the successful candidates who had passed the written test was displayed and, therefore, the petitioners’ case was that they were not in a position to find out the details about the number of candidates who were declared successful in the written examination. Meanwhile, the Selection Committee JUDGMENT met and resolved to prescribe minimum marks for the viva voce test and the same was approved by the Full Court. Allowing the writ petitions, this Court held :- “15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of Page 30 31

16. The contention raised by the learned counsel for the respondent that the decision rendered in K. Manjusree (2008) 3 SCC 512 did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as in K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395 and, therefore, should be regarded either as decision per incuriam or should be referred to a larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or not, never fell for consideration of this Court in the decisions referred to by the learned counsel for the respondent. While deciding the case of K. Manjusree the Court noticed the decisions in: ( 1 ) P.K. Ramachandra Iyer v. Union of India ; (1984) 2 SCC 141, ( 2 ) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721 ; and ( 3 ) Durgacharan Misra v. State of Orissa , (1987) 4 SCC 646 and has thereafter laid down the proposition of law which is quoted above. On JUDGMENT Page 31 32

26. In the case of Inder Parkash Gupta vs . State of J&K & Others 2004 (6) SCC 786 , this Court held as under:- “28. The Jammu & Kashmir Medical Education (Gazetted) Services Recruitment Rules, 1979 admittedly were issued under Section 124 of the Jammu and Kashmir Constitution which is in pari materia with Article 309 of the Constitution of India. The said Rules are statutory in nature. The Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for JUDGMENT Page 32 33

Railways, while making recruitment for the post of Gangman fixed cut-off marks separately for general category and reserved category candidates (para 3 of the judgment). However, some of the vacancies remained unfilled because the Railways could not get requisite number of candidates JUDGMENT within the cut-off marks. The competent authority took a specific decision not to lower the cut-off marks because it was not considered to be conducive to general merit of candidates. The question was whether this decision was arbitrary in view of the fact that some of the vacancies remained unfilled. This Court held as under: Page 33 34

11. … Once it is held that the appellants had the requisite jurisdiction to fix the cut-off marks, the necessary corollary thereof would be that it could not be directed to lower the same. It is for the employer or the expert body to determine the cut-off marks. The court while exercising its power of judicial review would not ordinarily intermediate therewith. The jurisdiction of the court in this behalf is limited. The cut-off marks fixed will depend upon the importance of the subject for the post in question. It is permissible to fix different cut-off marks for different categories of candidates. “ JUDGMENT 28. There cannot be any dispute that the merit of a candidate and his suitability is always assessed with reference to his performance at the examination. For the purpose of adjudging the merit and suitability of a candidate, Page 34 35 the Commission has to fix minimum qualifying marks in the written examination in order to qualify in the viva voce test. It is now well settled that fixing the qualifying marks in the

selection is not justified but fixing some criteria for qualifying a candidate in the written examination is necessary in order to shortlist the candidates for participating in the interview. 29. As noticed above, cut-off marks of 33% fixed as qualifying marks in all subjects for the purpose of interview cannot by any stretch of imagination be held illegal or unjustified merely because such criteria for securing minimum 33% marks was notified for the Preliminary JUDGMENT Examination and Main Examination. Rule 11 of Arunachal Pradesh Public Service Combined Civil Service Examination Rules, 2001 empowers the Commission to fix minimum qualifying marks for the purpose of shortlisting the candidates for interview. In our considered opinion, the power exercised by the Commission under Rule 11 of 2001 Rules fixing the qualifying marks in the written examination Page 35 36 in the process of conducting the recruitment test cannot be interfered with by this Court. We reiterate that there must be some yardstick to be followed by the Commission for the

examination. The fixation of qualifying marks as 33% in the written examination cannot be held to be illegal or arbitrary action of the Commission merely because it was notified in the process of conducting recruitment tests. It was argued from the side of the Appellant-Commission that the Commission has in the past conducted written examination fixing the cut-off marks in exercise of power under Rule 11 of 2001 Rules. The High Court has lost sight of the fact that pursuant to the directions of the learned Single Judge in his JUDGMENT th order dated 30 September, 2008, the result was declared th applying the qualifying marks as notified in O.M. dated 7 January, 2008 and the same was adopted by the Commission. 30. Although it is desirable that the Commission should fix the minimum qualifying marks in each written examination, Page 36 37 but in the instant case the power exercised by the Commission in recruiting the candidates to secure qualifying marks cannot be interfered with. 31. For all these reasons, we allow the appeal and set aside the order passed by the Division Bench of the High Court. ……………………………..J. (P. Sathasivam) ……………………………..J. (M.Y. Eqbal) New Delhi, May 1, 2013. JUDGMENT Page 37