JUDGMENT

M.Y.Eqbal, J.:-Leave granted.

2. This appeal is directed against the judgment and order dated 7th January, 2009 passed by a Division Bench of the Gauhati High Court on a reference made to it by the Hon’ble Chief Justice pursuant to the order dated 19th November, 2008 of a learned Single Judge to answer the question as to whether the Office Memorandum dated 7th January, 2008 issued by the Government of Arunachal Pradesh and adopted by the Arunachal Pradesh Public Service Commission on 16th April, 2008 prescribing cut-off marks of 33% or more to be 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 initiated in pursuance of the advertisement dated 25th July, 2006 for such recruitment.

3. The facts of the case are that the Arunchal Pradesh Public Service Commission (in short, “the Commission”) issued an advertisement dated 25th July, 2006 inviting applications for admission to the Arunachal Pradesh Public Service Combined Competitive Examination (Preliminary) 2006-07 for recruitment to Group-A and Group-B posts under the Government of Arunachal Pradesh. A decision was taken by the Commission on 13th June, 2007 fixing a minimum cut-off marks at 40% in English as qualifying marks or as would be decided by the Commission in every written examination for recruitment to the posts and a notification to that effect was issued on 2nd July, 2007. The Main Examination commenced on 26th December, 2007 and the Commission vide its Notification dated 11th 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 Examination, an Office Memorandum dated 7th January, 2008 (in short, “the O.M.”) had been issued by the State 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. No. 271 (AP) of 2008 on 25th July, 2008 challenging the decision dated 13th June, 2007 of the Commission and the Notification dated 11th July, 2008 publishing the list of candidates who had qualified in General English by securing 40% marks. The learned Single Judge of the High Court vide order dated 30th September, 2008 while allowing the writ petition held that the power for fixing the minimum qualifying marks both in Preliminary Examination and Main 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 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:-

“The impugned decision was taken by the commission on 13.06.2007, i.e. after about 4(four) months from the date of conducting the preliminary examination on 02.02.2007 and 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:-

“Candidate