1. Heard Mr. A. Apang, learned counsel for the writ petitioner. Also heard Mr. R. H. Nabam, learned Senior Government Advocate, Arunachal Pradesh, for State respondents, Mr. N. Tagia, learned standing counsel for respondent Arunachal Pradesh Public Service Commission (APPSC) and Mr. A. K. Singh, learned counsel for private respondent No. 4. 2. An advertisement was issued by the Arunachal Pradesh Public Service Commission ('Commission') for filling up 2 Posts of Section Officer, Grade-B (Gazetted) in the Arunachal Pradesh Secretariat through Limited Departmental Competitive Examination. One post is reserved for Arunachal Pradesh Scheduled Tribe candidate ('APST candidate') while the other post kept unreserved for General Candidates. The Assistants of Arunachal Pradesh Civil Secretariat ('Secretariat') who have rendered 6 years of regular service in the grade are eligible to apply for the said post in prescribed format. The selections are to be made on the basis of marks secured in the written examination. The written test was held on 28th and 29th of June, 2008, and the result of the written test was published on 15.9.2008 wherein the petitioner's name appeared at Serial No. 2. The candidates who passed the written test were required to appear in the viva voce test scheduled to be held on 23.9.2008 which was postponed by a press release dated 23.9.2008 issued by the Commission. The Commission published another revised result by its notification dated 23.9.2008 indicating the date of viva voce test to be held on 26.9.2008 by adding 3 more names in the list of General Category including the name of private respondent No. 4, Sri Roman Bora, whose name did not figure in the earlier Notification dated 15.9.2008. The viva voce test was held on 26.9.2008 and the result was declared on the same day. The petitioner also appeared in the said test. Thus, in the result Notification dated 23.9.2008, as many as 6 candidates were recommended against one post in the unreserved/general category. The names of private respondent No. 4 and petitioner have been placed at Serial Nos. 6 and 9 respectively. 3. The appointment to the Post of Section Officer, Group-B (Gazetted), is governed by "The Arunachal Pradesh Secretariat Recruitment to the post of Section Officer, Rules, 2004 ('Rules of 2004'). The names of private respondent No. 4 and petitioner have been placed at Serial Nos. 6 and 9 respectively. 3. The appointment to the Post of Section Officer, Group-B (Gazetted), is governed by "The Arunachal Pradesh Secretariat Recruitment to the post of Section Officer, Rules, 2004 ('Rules of 2004'). As per provisions thereunder, 50% per cent of the posts is required to be filled up by promotion and the other 50% of the posts is required to be filled up by Limited Departmental Competitive Examination from amongst the Assistants of Arunachal Pradesh Secretariat who have rendered 6 years of regular service in the grade on the basis of merit adjusted from the subjects namely: - (a) General Knowledge (b) General English/Noting/Drafting Essay writing (c) FRs/SR/GFRs/Pension Rules/CCS(CCA) Rules/General Provident Fund Rules (100 marks in each subjects) and (d) viva voce (50 marks). 4. The State Government issued an Office Memorandum No. 54/2006 dated 7.1.2008 signed by the Secretary (AR), Government of Arunachal Pradesh, providing that candidates securing a minimum of 33% or more marks in each written paper and securing 45% of marks out of aggregate total marks in the written examination papers, shall be eligible for viva voce. It is specifically provided therein that candidates securing less than 33% of marks in any of the written examination paper, shall not be eligible for appearing in the viva voce test. The respondent No. 4 secured only 29 marks out of 100 marks in the written test in the Subject of FRs/SRs/GFRs/Pension Rules, etc., whereas the petitioner secured more than 33% in all the subjects of written examination. The Secretary to the Commission, before declaring the results, addressed a letter dated 26.8.2008 to the Secretary (AR) seeking clarification as to whether the Limited Departmental Examination conducted for the purpose of recruitment of Section Officer shall attract the provisions of Government O.M. dated 7.1.2008 under which a candidate is required to secure compulsorily 33% of marks in all the subjects. To the aforesaid query, the Deputy Secretary( AR), vide letter dated 7.7.2008, clarified that 33% of marks in the minimum clarifying marks and the candidates securing less than 33% of marks do not deserve appointment in Government service. The AR Department by another letter dated 8.9.2008, signed by the Under Secretary, informed the Secretary to the Commission that the confusion has already been clarified vide earlier letter dated 7.7.2008. The AR Department by another letter dated 8.9.2008, signed by the Under Secretary, informed the Secretary to the Commission that the confusion has already been clarified vide earlier letter dated 7.7.2008. Thereafter, the Under Secretary (AR) by letter dated 22.9.2008 informed that the O.M. dated 7.1.2008 is actually meant for selection of candidates for viva voce test in respect of direct recruitment examination and it does not apply to the Limited Departmental Competitive Examination and as such, the earlier communication dated 8.9.2008 has been withdrawn to enable the Commission for re-evaluation and re-declaration of result. On the basis of this letter, the Commission re-evaluated and re-declared the result of the candidates as stated earlier vide its Notification dated 23.9.2008. 5. The propriety, authority and legality of the aforesaid actions of the State respondents are in question in this writ proceeding. 6. Mr. Apang, learned counsel for the petitioner, submits that although the Rules of 2004 do not prescribe the minimum percentage of marks to be obtained by the candidates in the written test, it is necessary for a candidate to obtain minimum 33% of marks in each subjects in the written examination as has been prescribed in the O.M. dated 7.1.2008 irrespective of written examination in the open competition or the Limited Departmental Competitive Examination, conducted by the Commission. The AR Department initially took a right stand which was communicated through its letters dated 7.7.2008 and 8.9.2008 but due to some misrepresentation and mis-advice, it changed its stand and withdrew the aforesaid letters thereby providing that candidates securing less than 33% of marks in the Limited Departmental Competitive Examination would be eligible for appointment to the post of Section Officer. 7. Mr. Apang, learned counsel, referring to various office nothing in the aforesaid matter which he received through Right to Information Act, 2005, submits that the so-called letter dated 22.9.2008 withdrawing the earlier letters on the stand that a candidate must secure 33% of marks in all the subjects, is illegal and non-est inasmuch as the same was issued by a Under Secretary who has no authority to issue such letter without the approval of the Commissioner or Secretary to the Department concerned. According to him, the minimum marks of 33% in all the subjects as provided in O.M. dated 7.1.2008 was circulated as a matter of public policy which was approved by the State Cabinet and such a decision cannot be changed or amended even by the Commissioner/Secretary of the Department, not to speak of the Officer like the Under Secretary, who is at the bottom of the hierarchy. The decision was taken at the levels of Deputy Secretary and Under Secretary without the approval of the Commissioner or the Secretary of the Department with some vested interests inasmuch as the aforesaid Deputy Secretary and the Under Secretary took the initiative after receiving a representation from one Sri Marnya Angu who was a candidate for the said post but failed to obtain the minimum 33% of marks in all the subjects. The fact that the aforesaid Marnya Angu made a representation and the initiative was taken by the officers at the levels of Deputy Secretary and Under Secretary, according to Mr. Apang, learned counsel, reveals from the correspondences made between the Secretary and the Commission and the Secretary (AR), particularly from the Commission's letter dated 19.9.2008 (Annexure DC to the writ petition). The entire exercise was done only to accommodate some candidates, particularly the private respondent No. 4, who could not secure 33% of marks in all the subjects in the written examination and to deprive the petitioner of the chance of appointment although he secured more than 33% of marks. The learned counsel relies on Kumari Anamica Mishra and Anr. v. U.P. Public Service Commission, Allahabad and Ors., AIR 1990 SC 461 wherein it is held, inter alia, that if no defect is pointed out in regard to the written examination and if the sole objection is confined to exclusion of a group of successful candidates in the written examination from the interview, it would not justify cancellation of the written part in the recruitment examination. 8. Countering the submissions advanced by Mr. Apang, learned counsel for the petitioner, it is argued by Mr. 8. Countering the submissions advanced by Mr. Apang, learned counsel for the petitioner, it is argued by Mr. R. H. Nabam, learned Senior Government Advocate, that the O.M. dated 7.1.2008 is a procedure prescribed by the Government to regulate the direct recruitment examination in which a candidate must secure 33% of marks but in the instant case, the appointment to the posts of Section Officer is required to be made on the basis of Limited Departmental Competitive Examination under separate rules namely the Rules of 2004. For recruitment to the posts in question, the O.M. dated 7.1.2008 has no application inasmuch as the said Rules of 2004 have prescribed separate method of recruitment, age limit and other qualifications and the said Rules do not prescribe minimum percentage of marks for being qualified in the written test. Even in the Arunachal Pradesh Public Service Commission Competitive Examination Rules, 2001 ('Rules of 2001') and the procedure prescribed thereunder for holding the competitive examination, no such minimum percentage of marks in each subject has been prescribed. The O.M. dated 7.1.2008 provides the minimum 33% of marks for passing the written examination and for being declared eligible to appear in the viva voce test. 9. As regards the allegation that the stand taken by the Department of AR on applicability of O.M. dated 7.1.2008 to the Limited Departmental Examination for recruitment to the post of Section Officer, it has been reiterated by Mr. R. H. Nabam, learned Senior Government Advocate, that the withdrawal letter was issued by the AR Department after thorough examination and interpretation of the provisions under Rules of 2004 and O.M. dated 7.1.2008 as well as Rules of 2001. He further submits that the purpose of conducting Limited Departmental Competitive Examination is to appoint qualified and eligible persons in the Secretariat service to the posts of Section Officer without involving candidates from the open market and as per the procedure of selection under O.M. dated 7.1.2008, it cannot be applied giving scope for some relaxation in the procedure for appointment to the posts in question. As regards the allegation of impropriety in the matter of giving approval by the Deputy Secretary/Under Secretary of the AR Department, it has been submitted that as per the manual of office procedure, the Secretary/Joint Secretary to the State Government are the administrative hierarchy of the Department and he is the principal advisor to the Chief Secretary/Ministers on all matters of policy and administration within his department and therefore, approval of a Joint Secretary to the withdrawal of a letter/communication or decision of the Department Secretary, would be followed if the Secretary to the department concerned was on leave or on tour. In the present case, the Secretary concerned was on tour at the relevant point of time and as such, the Joint Secretary became the immediate senior officer in the department and in his capacity as a Joint Secretary, approval was given by him and the same cannot be faulted with or termed as unauthorized or illegal. 10. Mr. A. K. Singh, learned counsel appearing for private respondent No. 4, submits that he would fully adapt the submissions made by Mr. R. H. Nabam, learned Senior Government Advocate, Arunachal Pradesh. The learned counsel, however, would like to add that the private respondent No. 4 submitted a representation to the Secretary of the Commission on 18.9.2008 (Annexure A to the counter affidavit filed by the respondent No. 4) praying for re-scrutiny of answer sheets of the Limited Departmental Competitive Examination for the post of Section Officer held on 28th and 29th of June, 2008, alleging that the Commission selected only two candidates - one for APST and other for non-APST/unreserved category for viva voce test against 2 posts due to wrong application of the guidelines issued by the AR Department vide O.M. dated 7.1.2008. On receipt of the aforesaid representation, the Commission sought clarification from the State Government and a decision was taken and communicated to the effect that minimum 33% of marks in all the subjects would not be required in the Limited Departmental Competitive Examination and the aforesaid O.M. dated 7.1.2008 has application only to the open competitive examination. 11. From the pleadings and submissions of the parties, the following indisputable position would emerge : (i) The posts of Section Officer were sought to be filled up through a Limited Departmental Competitive Examination. 11. From the pleadings and submissions of the parties, the following indisputable position would emerge : (i) The posts of Section Officer were sought to be filled up through a Limited Departmental Competitive Examination. (ii) Initially, the Commission selected only 2 candidates namely Sri Sudharshanan B. and K. Sidhardhan (writ petitioner) against one post for unreserved category. The petitioner secured above 33% of marks in all the subjects with aggregate marks 170.16 while Sudarshanan B. could not secure 33% of marks in all the subjects with 164.5 total marks and he remained out of fray. (iii) The private respondent No. 4 Sri Roman Bora secured only 29 marks out of 100 in the subjects - FRs/SRs/GFRs/Pension Rules, etc., and 30.50 marks in viva voce test and thereby, he could not secure the minimum 33% of marks in all the subjects although he secured in total 178.50,-marks. The petitioner secured less marks in total than private respondent No. 4 but the petitioner admittedly secured above 33% of marks in all the subjects. (iv) The Government O.M. dated 7.1.2008 provides minimum 33% of marks or more marks in each written examination paper and 45% of marks in aggregate total marks for being declared as eligible for viva voce test with relaxation in the cut-off marks of 45% in case of non-availability of APST candidates securing the cut-off marks, and (v) There is no provision for securing minimum 33% of marks or more marks under the Rules of 2004 although the Limited Departmental Competitive Examination should comprise written test in - (a) General Knowledge, (b) General English, notings, drafting, essay writing, and (c) FRs/SRs/GFRs/Pension Rules, etc., 100 marks each in total, and (d) 50 marks in viva voce test. 12. The only question for determination of this court is whether the procedure laid down in O.M. dated 7.1.2008 should apply to the recruitment of Section Officer through Limited Departmental Competitive Examination and the respondent authorities committed illegality in recommending private respondent No. 4 for appointment to the post of Section Officer as he could not secure 33% of marks in all the subjects. 13. 13. The Government, by its O.M. dated 7.1.2008, as it appears, wanted to streamline the procedure for conducting written test and viva voce test for selection of candidates and emphasis has been given on securing minimum 33% of marks in each written examination papers and 45% marks out of aggregate total marks for being declared eligible for viva voce test. The purport and intention of the Government could be better appreciated if the entire O.M. dated 7.1.2008 is extracted, which reads as follows : "(TO BE PUBLISHED IN ARUNACHAL PRADESH GAZETTE) GOVERNMENT OF ARUNACHAL PRADESH DEPARTMENT OF PERSONNEL, ADMINISTRATIVE REFORMS & ADMINISTRATIVE 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. 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 Groups 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 than 3 times of the number of vacancies. 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 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 than 33% of marks in any of written examination papers shall not be eligible for appearing 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'. 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/- (Y.D. Thongchi) Secretary (AR) Government of Arunachal Pradesh" 14. The Government after exchange of various communications between the Commission and AR Department came to a conclusion that the aforesaid O.M. dated 7.1.2008 is not applicable to the selection of candidates through Limited Departmental Competitive Examination. The said decision was communicated vide F. No. AE-77/2008/693 dated 22.9.2008. The said letter is also reproduced for close examination and coming to a finding : "F.No-AR- 77/2008/693 GOVERNMENT OF ARUNACHAL PRADESH MINISTRY OF PERSONNEL, ADMINISTRATIVE REFORMS & TRAINING DEPARTMENT OF ADMINISTRATIVE REFORMS CIVIL SECRETARIAT, BLOCK NO. 18 ITANAGAR Dated the September 22, 2008 To The Secretary Arunachal Pradesh Public Service Commission Arunachal Pradesh Itanagar. Subject :WITHDRAWAL OF CLARIFICATION DATED 8.9.2008 Sir, I am directed to refer to your Letter No. PSC-D/4/2008 dated 19th September, 2008, on the subject mentioned above. 2. I am further directed to say that the procedure notified vide No. OM-54/2006 dated 7.1.2008 is actually meant for selection of candidates for viva voce test in respect of Direct Recruitment Examination. Subject :WITHDRAWAL OF CLARIFICATION DATED 8.9.2008 Sir, I am directed to refer to your Letter No. PSC-D/4/2008 dated 19th September, 2008, on the subject mentioned above. 2. I am further directed to say that the procedure notified vide No. OM-54/2006 dated 7.1.2008 is actually meant for selection of candidates for viva voce test in respect of Direct Recruitment Examination. The Limited Departmental Competitive Examination is for selection of candidates for out of turn promotion which is not based on their seniority but based on the performance in the Limited Departmental Competitive Examination. 3. Therefore, I am further directed to withdraw the letter communication of even number dated 8th September, 2008, forthwith to enable the Commission for re-evaluation and re-declaration of result, etc., With best regards Sir. Yours faithfully Sd/- (MaryAngu) Under Secretary to the Government of Arunachal Pradesh" 15. The post in question is not a promotional post in strict sense of service law. The post in question belongs to Group-B (Gazetted) as per Rules of 2004. The said post can be filled up by promotion as well as Limited Departmental Competitive Examination and from amongst the Assistants of Arunachal Pradesh Secretariat who have rendered 6 years of regular service in the grade on the basis of merit. The aforesaid Rules of 2004 provides for recruitment of 50% of post by promotion and 50% by Limited Departmental Competitive Examination. The Government admittedly initiated the recruitment process for filling up 2 posts of Section Officer; one for APST candidate and other for non-APST candidate. The Government entrusted the Commission for holding the written examination and viva voce test. The comparative marks obtained by the instant writ petitioner and respondent No. 4, would be seen from their respective mark sheets, which are reproduced, as under : "PSC-D/10/2008 ARUNACHAL PRADESH PUBLIC SERVICE COMMISSION ITANAGAR Dated Itanagar the 3rd Oct., 2008 To Shri/Smt. K. Sidhardhan Roll No. 28. Sub : MARKS OBTAINED IN WRITTEN EXAMINATION/VIVA VOCE TEST FOR THE POST OF SECTION OFFICER UNDER A. P. CIVIL SECRETARIAT, ITANAGAR. Sir, I am directed to refer to your application dated on the subject mentioned above and give below marks obtained by you in the written examination/viva voce test for the post of Section Officer under Arunachal Pradesh Civil Secretariat, Itanagar. SI. No. Subject Full marks Marks obtained 1. General Knowledge 100 54 2. General English/Noting/Drafting/Essay Writing 100 49 3. Sir, I am directed to refer to your application dated on the subject mentioned above and give below marks obtained by you in the written examination/viva voce test for the post of Section Officer under Arunachal Pradesh Civil Secretariat, Itanagar. SI. No. Subject Full marks Marks obtained 1. General Knowledge 100 54 2. General English/Noting/Drafting/Essay Writing 100 49 3. FRs/SRs/GFRs/Pension Rules/CCS(CCA) Rules/General Provident Fund Rules 100 33.5 4. Viva voce 50 33.66 Total = 350 170.16 Yours faithfully Sd/- (B. Koyu) Under Secretary(R)" "PSC-D/10/2008 ARUNACHAL PRADESH PUBLIC SERVICE COMMISSION ITANAGAR Dated Itanagar the 10.10.2008 To Shri/Smt. Roman Bora Roll No. 23, Sub': MARKS OBTAINED IN WRITTEN EXAMINATION/VTVAVOCE TEST FOR THE POST OF SECTION OFFICER UNDER A.P. CIVIL SECRETARIAT, ITANAGAR. Sir, I am directed to refer to your application dated 10.10.2008 on the subject mentioned above and give below marks obtained by you in the written examination/viva voce test for the post of Section Officer under Arunachal Pradesh Civil Secretariat, Itanagar. SI. No. Subject Full marks Marks obtained 1. General Knowledge 100 59 2. General English/Noting/Drafting/Essay Writing 100 60 3. FRs/SRs/GFRs/Pension Rules/CCS(CCA) Rules/General Provident Fund Rules 100 29 4. Viva voce 50 30.50 Total = 350 178.50 Yours faithfully Sd/- (B. Koyu) Under Secretary(R)" 16. The aforesaid position is not disputed. The Rules of 2004 provide for written examination and viva voce test. It has been termed as 'Limited Departmental Competitive Examination'. It is not akin to procedure adopted for promotion to a higher post from amongst the eligible officers of a particular feeder post where either 'merit-cum-seniority' or 'seniority-cum-merit' basis is adopted by the Commission or the Departmental Promotion Committee (DPC) without any written examination. In the aforesaid context, the written examination conducted by the Commission for recruitment to the post in question would fall under direct recruitment examination limited amongst the eligible candidates in the Civil Secretariat of Arunachal Pradesh. 17. I have gone through the Civil Secretariat File No. AR-77/2008 as maintained by the AH Department and produced by Mr. R. H. Nabam, learned Senior Government Advocate. It is seen that when the matter was endorsed to the Chief Secretary to the Government of Arunachal Pradesh, he opined firmly that "33% is the minimum qualifying marks. There is no question of relaxation. Anybody securing less than 33% of marks is unfit to be in government service. Please inform APPSC". R. H. Nabam, learned Senior Government Advocate. It is seen that when the matter was endorsed to the Chief Secretary to the Government of Arunachal Pradesh, he opined firmly that "33% is the minimum qualifying marks. There is no question of relaxation. Anybody securing less than 33% of marks is unfit to be in government service. Please inform APPSC". Subsequently, when the File was again endorsed by the Under Secretary to the Commissioner, AR Department, it was further clarified that: - "If the advertisement for Limited Departmental Examination was published before Notification of the procedure mentioned above, it shall not come under the purview of Notification dated 7.1.2008. However, if the advertisement was issued after 7.1.2008, then it shall come under it. No relaxation below 33% can be made by the recruiting agency. We may inform the Commission as at Paras 27, 32, 33 and 34 above." From the above notes in the Secretariat File, it is found that the Government intended to follow the O.M. dated 7.1.2008 as the advertisement for the post in question, was issued subsequent to publication of aforesaid O.M. dated 7.1.2008. 18. After the matter was settled at the highest level, some unsuccessful candidates including private respondent No. 4 filed the representation for re-interpretation of O.M. dated 7.1.2008 and the aforesaid settled Government policy on cut-off marks, i.e., minimum 33% of marks has been changed at the Deputy Secretary level of the AR department, which has been narrated earlier. In this regard, the Secretary, AR Department, made a note to the effect that no amendment can be made with retrospective date already given by the Commission. The Chief Secretary, however, did not agree with the Secretary (AR) and ultimately, passed an order to the effect that minimum 33% of marks is applicable to the cases of direct recruitment only and since there is no mention about 33% minimum qualifying marks, the O.M. dated 7.1.2008 would not be applicable. The Chief Secretary, however, did not agree with the Secretary (AR) and ultimately, passed an order to the effect that minimum 33% of marks is applicable to the cases of direct recruitment only and since there is no mention about 33% minimum qualifying marks, the O.M. dated 7.1.2008 would not be applicable. The respondent Chief Secretary, while taking the aforesaid decision mis-directed himself by accepting that the recruitment to the post of Section Officer is not a direct recruitment without applying his mind to the fact that the Commission was entrusted to hold the written examination as well as viva voce test in the light of O.M. dated 7.1.2008 requiring the candidates to secure 33% of marks in all the subjects and 45% of marks in aggregate in the written examination. The respondent Chief Secretary also remained oblivious to the fact that the advertisement for the post in question was issued on 31.3.2008, i.e., after the issue of O.M. dated 7.1.2008. The view expressed by the Secretary, AR Department, had bearing with the aforesaid facts, Government policy and purport of conducting written/viva voce test by the Commission. In my considered view, the use of phrase "Limited Departmental Examination" would not bring the recruitment of Section Officer out of purview of direct recruitment. The sphere of competition may be confined to the eligible candidates belonging to Civil Secretariat but they have to compete amongst themselves and the selection would be made on the basis of merit. The seniority in service amongst the candidates has no relevancy like the direct recruitment from open market. The appointment of Section Officer although required to be made through Limited Departmental Competitive Examination, is, therefore, should be made through direct recruitment amongst the eligible candidates of Civil Secretariat and as such, the same should be invariably conducted as per the procedure prescribed under the O.M. dated 7.1.2008. 19. The post of Section Officer attaches higher responsibility in the Civil Secretariat and it is, therefore, expected that comparatively more meritorious person from amongst the Secretariat staff should be brought into service. 19. The post of Section Officer attaches higher responsibility in the Civil Secretariat and it is, therefore, expected that comparatively more meritorious person from amongst the Secretariat staff should be brought into service. Here in this case, the private respondent No. 4 admittedly failed to show his better merit inasmuch as he could not even secure minimum 33% of marks out of 100 marks in the subjects - FRs/SRs/GFRs/Pension Rules, etc., which are important subjects in the day-to­day administration but he has been preferred over the petitioner who had at least secured the minimum required cut-off marks in all the subjects. It must be noted that no authority has been given to the recruitment agency/authority under Rules of 2004 to fix any cut-off marks in the written examination/viva voce test. The Rules of 2004 provides only power to hold written examination/viva voce test in certain subjects with total marks for each subject without prescribing any minimum cut-off marks. It is, therefore, implied that the minimum cut­off marks as prescribed in O.M. dated 7.1.2008 should rule the field. The aforesaid O.M. dated 7.1.2008 is a supplement to the Rules of 2004. The general principle of law is that if the competent authority has no power to do certain act, it has no power to act otherwise. There is a total absence of application of mind by the respondent Chief Secretary in changing his earlier stand on O.M. dated 7.1.2008 inasmuch as he has given no valid reason for it and such change of stand has given scope for accommodating an undeserving candidate like the private respondent No. 4. He also failed to appreciate that appointment of such undeserving candidate would affect the efficiency of administration in the Civil Secretariat. It would naturally drive any reasonable person to draw an inference of doing an act by the authority concerned in an unauthorized manner at the behest of vested interests by using his power and authority for unauthorized purpose. The settled law is that when a power is exercised for an unauthorized purpose, the same would amount to malice in law and such unauthorized action for unauthorized purpose is liable to be interfered with by the court in judicial review. This has been held so in several decisions of the Apex Court, the latest being P. Mohanan Filial v. State of Kerala, (2007) 9 SCC 497 . 20. This has been held so in several decisions of the Apex Court, the latest being P. Mohanan Filial v. State of Kerala, (2007) 9 SCC 497 . 20. The above decisions and reasoning would lead this court to hold that the O.M. dated 7.1.2008 is applicable to the recruitment through Limited Departmental Competitive Examination and the petitioner has been able to make out a case for interference with the impugned letter of withdrawal of clarification dated 22.9.2008 vide F.No. AR-77/2008/693, impugned re-notification of revised result dated 23.9.2008 vide No. PSC-D/4/2008 and impugned recommendation dated 23.9.2008 vide Order No. PSC-D/4/2008 and the same are, accordingly, set aside and quashed. The respondent authorities are directed to declare results in question as per result notification dated 15.9.2008 vide No. PSC-D/4/2008 strictly in terms of Government O.M. dated 7.1.2008, as expeditiously as possible, preferably, within, l(one) month from the date of receipt of a certified copy of this order. 21. With the above observations and directions, this writ petition stands allowed and disposed of. 22. There shall be no order as to costs.