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2009 DIGILAW 9 (GAU)

Tage Habung v. State of Arunachal Pradesh

2009-01-07

A.C.UPADHYAY, AFTAB H.SAIKIA

body2009
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. N. Choudhury, learned Counsel for the Petitioners as well as Mr. K.N. Choudhury, learned Sr. Counsel assisted by Mr. N. Tagia and Mr. R. Dubey, learned, counsel for the Arunachal Pradesh Public Service Commission (for short, 'the APPSC) as well, as Ms. N. Bora, learned State Council Arunachal Pradesh. 2. In view of the conflicting opinions expressed in two separate judgments and orders dated 24.6.2008 and 30.9.2008 passed in W.P. (C) No. 101 (A.P.) of 2008 and W.P. (C) No. 271 (A.P.) of 2008 respectively, as has been found by the learned Single Judge while entertaining the instant Writ Petition being W.P. (C) No. 417 (A.P.) of 2008, renumbered at Principal Seat as W.P. (C) 4902/2008, the present Writ Petition has been referred to this Division Bench by the Hon'ble the Chief Justice on 20.11.2008 pursuant to the order dated 19.11.2008 of the learned Single Judge to answer the question as to whether the Office Memorandum (for short, 'the O.M.') dated 7.1.2008 issued by the Government of Arunachal Pradesh which was later on adopted by the Arunachal Pradesh Public Service Commission (for short, "the APPSC") on 16.4.2008 prescribing cut-off mark of 33% or more to be secured in each written examination papers in the Arunachal Pradesh Public Service Combined Competitive Examination (Main) 2006-2007 (for short, 'the Main Examination') conducted by the APPSC 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 pursuance of the Advertisement dated 25.7.2006 for such recruitment. 3. The O.M. dated 7.1.2008 reads as under: GOVERNMENT OF ARUNACHAL PRADESH DEPARTMENT OF PERSONNEL, ADMINISTRATIVE REFORMS AND TRAINING ADMINISTRATIVE REFORMS No. OM-54/2006 Dated, Itanagar, the 7th January, 2008. Office Memorandum Subject. Selection of candidates for appearing in Viva Voce test on the basis of Recruitment Examination-procedure thereof. It has been brought to the notice of the Government that various appointing authorities are selecting candidates for viva-voce test on the basis of one or two subject of written examination ignoring other equally important papers and without following a uniform pattern. Selection of candidates for appearing in Viva Voce test on the basis of Recruitment Examination-procedure thereof. It has been brought to the notice of the Government that various appointing authorities are selecting candidates for viva-voce test on the basis of one or two subject of written examination ignoring other equally important papers and without following a uniform pattern. As a result, the ratio of candidates selected per vacancy varies from one Examination to other without maintaining common practice on prescription of ratio or cut off marks even the candidates are selected in the ratio of 1:2:3. The issue was under examination of the Administrative Reforms Department and has found that no such procedure had been laid down earlier nor such procedures have been prescribed in the relevant Recruitment Rules. After careful examination of the issue and in modification of point No. 2 and 3 of the OM dated 28.8.2006, the Government of Arunachal Pradesh has decided to prescribe the following procedures for all direct recruitment examinations for appointment to Group-A, B and C posts/services under the Government of Arunachal Pradesh: (1) For appearing in the viva-voce test, candidates shall be selected in the 'ratio' of 1:3 (meaning 3 candidates shall be selected for each vacancy or 3 (three) times of the number of vacancies) on the basis of written examination papers. However, ratio of 1:3 shall not apply in case the candidates appearing the written examination is less then 3 times of the number of vacancies. In case of the candidates appearing in the written examination is less then 3 times of the number of vacancies. In case of the candidates appearing in the written examination is less then 3 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. (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 papers and subject to ratio of 1:3. The candidates securing less then 33% of marks in any of written examination paper shall not be eligible for appearing in the 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 papers and subject to ratio of 1:3. The candidates securing less then 33% of marks in any of written examination paper shall not be eligible for appearing in the viva-voce test. (3) The Selection Committee or Commission maylower 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'. Therefore all the appointing authorities are requested to comply with the above guidelines while conducting recruitment examinations for appointment to Group 'A', 'B' and 'C' level of posts/services. Sd/Illegible (D. Thongehi) Secretary (AR) Government of Arunachal Pradesh. 4. The APPSC adopting the O.M. dated 7.1.2008 published a Notification dated 16.4.2008 which may be quoted as under: No. PSC-R/11/92 Dated Itanagar, the 16th April 2008. Notification It is for information of all aspiring candidates that the Govt, notification No.OM-24/2006 : Dated 7th January 2008 under which the criteria for qualifying in any written examination is prescribed as below is accepted and stands enforced for all future examinations to be conducted by this Commission including the written examination already conducted with immediate effect. 1. For appearing in the viva-voce test candidates shall be selected in the 'ratio' of 1:3 (meaning 3 candidates shall be selected for each vacancy or 3 (three) times of the number of vacancies) on the basis of written examination papers. 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. 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 of viva-voce test shall be based on the aggregate total marks secured in the written examination papers and subject to ratio of 1:3. On the other, it will further mean that selection of viva-voce test shall be based on the aggregate total marks secured in the written examination papers and subject to ratio of 1:3. The candidates securing less than 33% of marks in any of written examination paper shall not be eligible for papering in the viva-voce test. 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 5. Originally while deciding W.P. (C) No. 101 (A.P) of 2008, the learned Single Judge was confronted with a situation where two Petitioners thereof from the discipline of Veterinary Science having appeared in the written examination held in the month of June, 2007 in pursuance of an advertisement dated 19.12.2006 inviting application to fill up the posts of Veterinary Officer in the State of Arunachal Pradesh, were not selected for Oral Interview as they could not obtain the qualifying marks of 33% prescribed in the O.M. dated 7.1.2008 being notified as mentioned above they appeared in the written examination. In that case the learned Single Judge, having heard the parties including the learned Counsel for the APPSC in depth, came to the conclusion that the O.M. dated 7.1.2008 would not be applicable for calling the writ Petitioners for viva-voce due to the simple fact that O.M. dated 7.1.2008 could not be made retrospective because established principle of law was that amendment was always prospective and accordingly the Writ Court granted relief to the Petitioners therein with the clear finding that guideline and criteria for selection process prevailing as on the date of advertisement i.e. 19.6.2006 would be applicable and the O.M. dated 7.1.2008 should not be applicable in that case. 6. In the next case i.e. W.P.(C) No. 271 (A.P.)/08, four Petitioners in the said writ petition, being the candidates pursuant to the advertisement dated 25.7.2006 of the APPSC for the Main Examination appeared in the Main Examination, but they were found to be not eligible for being called for the viva-voce test, because only those candidates were invited for viva-voce test who secured 40% mark in General English Paper, being fixed in terms of policy decision dated 13.6.2007 taken by the APPSC and subsequent Notification dated 11.7.2008. Those Petitioners moved the Writ Court challenging both the Policy Decision dated 13.6.2007 and the Notification dated 11.7.2008 by which the APPSC fixed the qualifying marks of 40% in General English, alleging that the said decision as well as the Notification were bad in law as there was no provisions made in the Arunachal Pradesh Public Service Combined Civil Services Examination Rules, 2001 (hereinafter referred to as 'the Rules') and the same were published after the commencement of the selection process i.e. after holding preliminary examination as well as Main Examination held in pursuance of advertisement dated 25.7.2006. It is to be noted that no challenge was made in the said writ petition against the O.M. dated 7.1.2008. 7. The Writ Court in W.P.(C) No. 271 (A.P.)/2008, on 30.9.2008, having heard the learned Counsel for the parties and on perusal of the materials available on record, came to the finding that the impugned decision dated 13.6.2007 which was admittedly taken after the Preliminary Examination held by APPSC and in the middle of the recruitment process, was illegal, unfair, unreasonable and arbitrary and liable to be quashed and same was quashed accordingly. However, the APPSC was directed that it should 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 way of policy decision reflected in the O.M. dated 7.1.2008. 8. The aforesaid view appears to be contrary to the earlier verdict dated 24.6.2008 recorded in W.P.(C) No. 101 (A.P.) of 2008 whereby the O.M. dated 7.1.2008 was declared inoperative. 9. However it is pertinent to note that in paragraph 12 of the order dated 30.9.2008, it was observed as under: 12. The impugned decision was taken by the Commission on 13.6.2007, i.e. after about 4 (four) months from the date of conducting the Preliminary Examination on 2.2.2007 and the Respondent Commission claimed that it has the power to do so under the provision of Rule 11 of the Rules of 2001, Rule 11 of the aforesaid Rules is quoted below: 11. The impugned decision was taken by the Commission on 13.6.2007, i.e. after about 4 (four) months from the date of conducting the Preliminary Examination on 2.2.2007 and the Respondent Commission claimed that it has the power to do so under the provision of Rule 11 of the Rules of 2001, Rule 11 of the aforesaid Rules is quoted below: 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. This 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 subjects/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 Commission is required to fix the minimum qualifying marks before it holds the Preliminary Examination. In this case, the Commission took the decision admittedly after the Preliminary Examination was conducted which is not at all contemplated under the said Rule. In my considered view, the Commission is not authorised to take the impugned decision after the Preliminary Examination was conducted i.e. long after the recruitment process had already been set in motion. It is immaterial whether or not the Petitioners papered in the Main Examination are fully aware of about the decision of the Commission requiring the candidates to secure minimum 40% marks in General English paper. The principle of estoppel sought to be applied by the Commission to the Petitioners is not tenable under the law as the Commission sought to implement the decision which is not authorized under the Rules. 10. The principle of estoppel sought to be applied by the Commission to the Petitioners is not tenable under the law as the Commission sought to implement the decision which is not authorized under the Rules. 10. Clear it is from the above observation that no power has been given under the provision of the aforesaid Rules to the APPSC to fix a minimum qualifying mark in respect of a particular subject/paper. It was further opined therein that the Rule contemplated that the APPSC was required to fix the minimum qualifying marks before it held Preliminary Examination. 11. At the same time, the Writ Court in paragraphs 19 and 20 held as follows: 19. The controversy regarding giving effect to the impugned decision "in future" on from the on-going recruitment process should not detain this Court any longer in deciding the matter. There is no dispute that the impugned decision was taken after the Preliminary Examination was held by the Commission. Normally, the recruiting authority is not expected to set new condition/conditions after the process of recruitment has already been set in motion and more particularly, when such change of terms and conditions are not reflected in the advertisement issued by the authority inviting applications from eligible candidates. In the present case, as already discussed above, the Commission took the impugned decision contrary to the policy decision of the State Government besides taking the same in the middle of the recruitment process which is totally unwarranted and beyond the accepted procedure in matter of recruitment and as such, the impugned decision is illegal, unfair, unreasonable and arbitrary and it is immaterial whether the said impugned decision is to be given effect to "in future" process or in the ongoing process of recruitment. 20. The impugned decision dated 13.6.2007 is therefore liable to be quashed and the same is quashed hereby. 20. The impugned decision dated 13.6.2007 is therefore liable to be quashed and the same is quashed hereby. It is directed 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 way of policy decision reflected in the aforesaid Office Memorandum dated 7.1.2008 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 of written and viva-voce test. Be it made clear that the marks secured in other papers/subjects by the Petitioners and other similarly situated candidates shall be evaluated by the Commission provided they have secured the minimum 33% of marks or more in General English paper in the written test of the Main Examination and their eligibility for being called to the viva-voce test shall be determined accordingly on merit. 12. Pertinent to record that the O.M. dated 7.1.2008 was not a subject matter of challenge in W.P. (C) No. 271 (A.P.)/2008. It may also be noticed that perhaps, the judgment and order dated 24.6.2008 rendered in W.P. (C) No. 101 (A.P.) of 2008 was not brought to the notice of the learned Single Judge at the time of entertaining the said Writ Petition. 13. Keeping in view the entire findings in the above mentioned judgment as noted above, it goes to show that the same is apparently in conflict with the ratio of the judgment and order dated 24.6.2008 passed in W.P. (C) No. 101 (A.P.)/08 wherein it was clearly held that the O.M. dated 7.1.2008 would not be applicable after the initiation of recruitment process in pursuance of the advertisement process and the same had no retrospective applicability. 14. 14. Now, this group of Petitioners herein in the instant writ petition has moved this Court through W.P. (C) No. 417 (A.P.)/08 now renumbered as W.P. (C) No. 4902/2008 (GHY) claiming that although they appeared in the Main Examination after passing Preliminary Examination, they were not selected for viva-voce as they did, as have been informed, not qualify the cut off mark of 33% prescribed in the O.M. dated 7.1.2008 which was, concededly, made operative when the Main Examination was going on with effect from 26.12.2007 to 21.1.2008. Their case before the learned Single Judge is that the O.M. dated 7.1.2008 is inapplicable, inoperative and impermissible because the same has been floated when the recruitment process has already been on in pursuance of to the advertisement dated 25.7.2006 and also in the midst of the Main Examination. 15. Having entertained this writ petition, the Writ Court has felt that the issue raised before it can only be resolved after determining the conflicting views taken in earlier two writ petitions by the Coordinate Bench of this Court as mentioned above and accordingly this matter has been placed before us. 16. By order dated 19.11.2008, the learned Single Bench has opined as under: As reflected above, I find that there are two conflicting decisions covering the field rendered by two learned Single Judges of this Court, one holding that the impugned office Memorandum is not applicable to the case of the candidates who already applied for the post whose written test is also over. On the other hand, there is specific and positive direction passed by another learned Single Judge in W.P. (C) No. 271 (A.P.)/2008 directing the Commission to act as per the Office Memorandum dated 7.1.2008 even in the pending recruitment test. The aforesaid judgments have been rendered interpreting the common Office Memorandum dated 7.1.2008 by coordinate Bench and there having apparent conflict in both the judgments, in my considered opinion, the matter may be resolved by a Division Bench. Accordingly, the Registry is directed to list this case before the Hon'ble the Chief Justice on administrative side for consideration to refer the matter to a Division bench, if approved. It is ordered accordingly. Accordingly, the Registry is directed to list this case before the Hon'ble the Chief Justice on administrative side for consideration to refer the matter to a Division bench, if approved. It is ordered accordingly. In this context, a note has been placed before the Hon'ble the Chief Justice by the Deputy Registrar (Bench) which is quoted below: Hon'ble the Chief Justice Ref: Order dated 19.11.2008 passed by the Single Bench of Hon'ble Mr. Justice H.N. Sarma in W.P. (C) 417 (A.P.)/2008 at Itanagar Bench. Vide order under reference, it has been directed to place the matter before your Lordship on the administrative side for consideration to take up the matter by a Division Bench. It may be mentioned here that the Hon'ble Court has mentioned in the aforesaid order that in the considered opinion of the Hon'ble Court, the judgment passed in two Writ Petitions i.e. W.P. (C) No. 101 (A.P.)/2008 and W.P. (C) No. 271 (A.P.)/2008 are having apparent conflict. Hence, the Hon'ble Court has directed to place the matter before your Lordship for consideration to resolve the issue by a Division Bench. It may further be mentioned here that at present Division Bench is not available at Itanagar as per roster. In view of the above, matter is placed before your Lordship for favour of kind perusal and necessary order. Sd/Illegible Dy. Registrar (Bench) 17. The Hon'ble the Chief Justice by order dated 20.11.2008 has directed for placement of this Writ Petition before the Division Bench II. 18. The entire recruitment process in the case at hand is admittedly governed by the Rules. Rule 11 of the Rules stipulates as tinder: 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. 19. The Appendix I (Section I) attached to the Rules provides for Plan of Examination. Under Clause 4, it has been provided as under: 4. 19. The Appendix I (Section I) attached to the Rules provides for Plan of Examination. Under Clause 4, it has been provided as under: 4. Candidates who obtain such minimum qualifying marks in the written part of the Main Examination as may be fixed by the Commission at their direction, shall be summoned by them on interview for a personality Test (vide Sub-section 'C' of Section II. The number of candidates to be summoned for interview will be about twice/thrice the number of vacancies to be filled. The interview will carry 175 marks, (with no minimum qualifying marks). Marks thus obtained by the candidates in the Main Examination (Written part as well-a interview) would determine their final ranking. Candidates will be allotted to the various services keeping in view their ranks in the examination and the preferences expressed by them for various services and posts. 20. Mr. N. Choudhury, learned Counsel representing the Petitioners who have been found not eligible for viva-voce test in view of the cut-off mark of 33% prescribed in terms of the O.M. dated 7.1.2008 in each paper, has forcefully advanced his limited argument to the effect that while selection process has already been initiated in terms of Advertisement dated 25.7.2006 and the candidates/Petitioners have already been taking the main Examination having successfully cleared the Preliminary Examination, the issuance of implementation of the impugned O.M. dated 7.1.2008 is itself illegal, motivated, arbitrary and discretionary and the same has been done with vested interest to eliminate some candidates including the Petitioners with a view to accommodate certain other candidates of choice. Referring to Rule 11, it is argued that there is no second opinion that the APPSC can exercise its power at its own discretion for fixing any qualifying marks but the same needs to be done prior to the commencement of the Main Examination or in alternative, the APPSC could have, by way of right and discretion, prescribed such minimum qualifying marks while evaluating the marks of written examination by way of in-house process without notifying the same. The unilateral publication of such impugned O.M. in the midst of selection process has adversely affected the interest of the Petitioners. Hence, in the light of the view expressed by order dated 24.6.2008 rendered in W.P. (C) No. 101 (A.P.)/08. This O.M. dated 7.1.2008 cannot be made applicable in the case of the Petitioners herein. The unilateral publication of such impugned O.M. in the midst of selection process has adversely affected the interest of the Petitioners. Hence, in the light of the view expressed by order dated 24.6.2008 rendered in W.P. (C) No. 101 (A.P.)/08. This O.M. dated 7.1.2008 cannot be made applicable in the case of the Petitioners herein. The same deserves interference from this Court and the APPSC may be directed to declare the result of the Petitioners without making the impugned O.M. applicable to their case. 21. To bolster up his submissions advanced above, Mr. N. Choudhury has relied upon the following judicial precedents: 1. Y.V. Rangaiah and Ors. v. Sreenivasa Rao and Ors. reported in AIR 1983 SC 852 ; 2. A.A. Calton v. The Director of Education and Anr. reported in AIR 1983 SC 1143 ; 3. Sushil Kumar Ghosh v. State of Assam and Ors. reported in (1993) 1 GLR 315; 4. K. Manjusree, etc v. State of A.P. reported in AIR 2008 SC 1470 : 22. In Rangaiah's case (supra) in paragraph 9 the Supreme Court held that the post which fell vacant prior to amended Rules would be governed by old Rules and not by new Rules. 23. In paragraph-5 of A.A. Calton's case (supra), it was held that the amending Act in question did not however provide expressly that the amendment in question would apply to the pending proceeding retrospectively. Although it was true that the Legislature might pass law with retrospective effect subject to the recognised constitutional limitations. It was clear and well established that no retrospective effect should be given to any statutory provision so as to impair or take way an the existing right unless the statute either expressly or by necessary implication, directed that it should have such retrospective effect. 24. Accepting the ratio of the case, it may be viewed that the proceeding in question in the instant case has to be continued in accordance with law as it stood at the time of commencement of the recruitment proceeding. 25. 24. Accepting the ratio of the case, it may be viewed that the proceeding in question in the instant case has to be continued in accordance with law as it stood at the time of commencement of the recruitment proceeding. 25. This Court in Sushil Kumar Ghosh's case (supra) in paragraph-5 reiterated the principles laid down in A.A. Calton's case (supra) holding that after the commencement of the selection process if the amendment of the Rules was made prospectively, changing the eligibility criteria, the amending Rules would not effect the selection and appointment as the selection process which had already commenced had to be completed in accordance with law as it stood at the time of commencement of the selection. 26. The Supreme Court in a recent case in K. Manjusree's case (supra) in paragraph 24 was very specific in this regard. In laying down the law, it was ruled therein that introduction of requirement of minimum marks for interview after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which was clearly impermissible. 27. With the aid of the decisions aforesaid, Mr. N. Choudhury has reiterated his submission stating that introduction of the eligibility criteria by fixing the cut-off marks amounts to be an amendment to the existing Rule 11 and the same is impermissible once the recruitment process has started i.e. completion of the Preliminary Examination and the Main Examination. 28. On the contrary Mr. K.N. Choudhury, learned Sr. Counsel supporting the impugned O.M. dated 7.1.2008 has strenuously urged that the Petitioners are not at all prejudiced by the impugned O.M. dated 7.1.2008. His contention is that by the power vested upon the APPSC in Rule 11 of the Rules, the APPSC has the discretion to fix the cut-off mark at any time as it deem fit and proper. In the instant case, this impugned O.M. was published on 7.1.2008 and admittedly during the continuation of the Main Examination but prior to holding of viva-voce test. According to him, after the Main Examination being over, and having evaluated the each papers of the Petitioners, applying the impugned O.M. dated 7.1.2008, they were found unsuccessful and accordingly they were not called for interview. According to him, after the Main Examination being over, and having evaluated the each papers of the Petitioners, applying the impugned O.M. dated 7.1.2008, they were found unsuccessful and accordingly they were not called for interview. His basic thrust is that an unsuccessful candidate has no right to approach the Court once he participated in the scheduled Examination without any objection. In support of legality and permissibility of the impugned O.M., he has relied on the following decisions: (1) State of U.P. v. Rafiquddin and Ors. reported in 1987 (Supp) SCC 401; (2) K.H. Siraj v. High Court of Kerala and Ors. reported in (2006) 6 SCC 395 ; (3) Indian Institute of Technology and Anr. v. Paras Nath Tiwari and Ors. reported in (2006) 9 SCC 670 . 29. In Rafiquddin's case (supra) in paragraph 12 it was held as under: 12. The Division Bench of the High Court observed that the Commission had no authority to fix any minimum marks for the viva-voce test and even if it had such a power it could not prescribe the minimum marks without giving notices to the candidates. The Bench further observed that if the Commission had given notice to the candidate before he steps for holding the competitive examination were taken the candidates may or may not have appeared at the examination. In our opinion the High Court committed a serious error in applying the principles of natural justice to a competitive examination. There is a basic difference between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination it is not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purpose of eliminating the unsuitable candidates. The rule of natural justice does not apply to a completive examination. 30. In the above-cited case, the basic issue was as regards application of principle of natural justice to a competitive examination particularly pertaining to fixation of any minimum mark for viva-voce test without notice. The Apex Court dealing with the said issue, ruled that in case of competitive examination which possessed different character, no notice was necessary to the candidates about fixing the minimum marks which the commission might determine for the purpose of eliminating unsuccessful candidates. The fact situation in the instant case is completely different and wholly separate with the factual premises projected in Rafiquddin case (supra). In the case at hand, the impugned O.M. was published fixing the eligibility criteria by prescribing cut-off mark of 33% in each paper only when the selection process was on the verge of completion i.e. Main Examination was about to be completed and candidates have been waiting for their selection for the viva-voce test. In our considered view, with all respect, the ratio of Rafiquddin's case is not applicable in the instant case. 31. Insofar as K.H. Siraj's case (supra) is concerned, in paragraph 62 it was observed by the Apex Court that in terms of Rule 7 of the Kerala Judicial Service Rules 1991, which is pari materia with Rule 11 of the Rules of the instant case, wherein similar discretion had been prescribed, the High Court had the power to prescribe benchmark for written test and oral test in order to achieve the purpose of getting the best available talent. There was nothing in the Kerala Rules so as to bar such a procedure from being adopted. It was also ruled that executive instructions could always supplement the Rules which might not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the rule with a view to implement them by prescribing relevant standards in the advertisement for selection. What happened in Siraj's case was that the Notification/Advertisement dated 26.3.2001 inviting applications for appointment to the post of Munsiff Magistrate in Kerala Judicial Service, itself carried in Clause (10) cut-off mark 35% in each paper of the written examination with overall minimum 45% of the total marks of written examinationor making them eligible for oral examination. Under such circumstances and factual backdrop, the Supreme Court made the observation as discussed above. But the instant case is founded on completely different footing and it is not similar with that of Siraj's case. The impugned O.M. by way of amendment or executive instruction came when the selection process has already been commenced and even on the verge of completion. That being so, we are of the view that this decision will not support the case of APPSC. 32. The ratio laid down in Indian Institute of Technology's case (supra) also exhibits different fact situation. This was regarding recruitment to a post of Maintenance Engineer (Aircraft) under the Department known as "Aeronautical Engineering Department" in IIT, Kanpur. The eligibility criteria for the said post was B. Tech in Aeronautical or Mechanical Engineering. The Respondents therein was a AIME, recognised as equivalent B. Tech or B.E. on the subject concerned and was also working in the Indian Air Force in the Maintenance Department. He also held certificates issued by the competent authority of the Indian Air Force that he was qualified to maintain HT2, Dakota and Gnat Aircraft. The Respondent was issued an appointment letter with a condition that in order to be employed as Maintenance Engineer for the Aircrafts possessed and used by the Appellant Institute, the Respondent had to be licensed under the Aircraft Rules 1932 for maintenance of such type of Aircrafts. However, despite reminders the Respondents did not place before the authority the requisite licence he rather sought for time on several occasions to furnish the same. However, despite reminders the Respondents did not place before the authority the requisite licence he rather sought for time on several occasions to furnish the same. Under such circumstances by the impugned office Order Respondent's probationary period was not extended. Such action of the authority was challenged before the Court of Law taking up the stand that there was no obligation on the part of the Respondent to produce such a licence as such requirement was not indicated in the advertisement. The Apex Court rejecting the contention of the Respondent held that the requirement of a licence for a person to be employed as Maintenance Engineer of Aircraft under the Rules was clear, irrespective of whether the advertisement prescribed it or not. Such a requirement must be read into the advertisement and to the contract of an employment. More so, the Respondents without denying such requirement was found to keep asking for time and extension of probation. In view of the above facts and circumstances emerged from the Indian Institute of Technology's case (supra), we are constrained to hold that the ratio of the said case cannot be applied herein. 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 materials available on record, it is seen that significantly the impugned O.M. dated 7.1.2008 was not published by the APPSC as required under Rule 11 of the Rules but it was issued by the Government of Arunachal Pradesh itself and the same has also only adopted by the APPSC vide Notification dated 16.4.2008 and that too after completion of the entire selection process. 34. Having read and considered both the impugned O.M. dated 7.1.2008 and the Notification dated 16.4.2008 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 7.1.2008 and subsequent adoption of the vide Notification dated 16.4.2008 cannot be made operative in the midst of continuation of selection process which has been initiated pursuant to the Advertisement dated 25.7.2006. 35. 35. Situated thus, we do agree with the view expressed in W.P. (C) No. 101 (A.P.) of 2008 disposed of on 24.6.2008 as well as in paragraph 12 of the judgment and order dated 30.9.2008 recorded in W.P.(C) No. 271 (A.P.) of 2008. We do holed that the impugned O.M. dated 7.1.2008 shall not come in way of selection of the Writ Petitioners. 36. The reference is answered accordingly. 37. The Writ Petition be sent back immediately to be placed before the learned Single Judge for its final decision in the light of the observation recorded hereinabove. 38. The entire records be sent down forthwith to Itanagar Bench at Naharlagun.