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2009 Supreme(Gau) 8
IN THE HIGH COURT OF GAUHATI
Aftab H. Saikia and Arun Chandra Upadhyay, JJ.
Shri Tage Habung and Ors.
Vs.
State of Arunachal Pradesh and Ors.
W.P. (C) No. 417 (AP) and 4902 (Ghy) of 2008
Decided On: 07.01.2009
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: N. Choudhury, S.C. Koyal, S.K. Ghosh and S.P. Choudhury, Advs.
For Respondents/Defendant: K.N. Choudhury, Sr. Adv., R. Dubey, Adv. N. Tagia, S.C. APPSC, N. Borah, Govt. Adv. Arunachal Pradesh
The impugned O.M. dated 7.1.2008 and subsequent adoption by the APPSC cannot be made operative in the midst of the ongoing selection process initiated pursuant to the Advertisement dated 25.7.2006.
Headnote:
O.M. - Recruitment Process - Rule 11 of the Rules - 11
Fact of the Case:
The conflicting opinions in two separate judgments led to the reference of the present Writ Petition to a Division Bench. The issue was whether the Office Memorandum (O.M.) dated 7.1.2008, prescribing cut-off marks for the Main Examination, was applicable after the commencement of the recruitment process and to candidates who had already taken the Main Examination.
Finding of the Court:
The court found that the O.M. dated 7.1.2008 should not be made operative in the midst of the ongoing selection process initiated pursuant to the Advertisement dated 25.7.2006. The court held that the O.M. shall not come in the way of the selection of the Writ Petitioners.
Issues: Conflicting opinions on the applicability of the O.M. dated 7.1.2008 to the ongoing recruitment process and candidates who had already taken the Main Examination.
Ratio Decidendi: The impugned O.M. dated 7.1.2008 and subsequent adoption by the APPSC cannot be made operative in the midst of the ongoing selection process initiated pursuant to the Advertisement dated 25.7.2006.
Final Decision: The reference was answered in favor of the Writ Petitioners, and the Writ Petition was sent back to the learned Single Judge for a final decision in the light of the court's observation.
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. 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
