State of U.P. and another Vs Johri Mal-21/04/2004

The age-old tradition on the part of the States in appointing the District Government counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the District Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties, the District Magistrate is supposed to know their conduct outside the Court vis-a-vis the victims of offences, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.


State of U.P. and another


Johri Mal
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Kumari Shrilekha Vidyarthi Vs State of Uttar Pradesh and others-20/09/1990

We are unable to accept the argument that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review.


Kumari Shrilekha Vidyarthi



(Before: J. S. Verma And R. M. Sahai, JJ.)

W.P. No.706 of 1990,

Decided on: 20-09-1990.

Constitution of India, 1950—Article 32—Writ—District Government Counsel—En masse termination—State action in contractual matters also amenable to judicial review.

Contract Act, 1872—Sections 53 and 62—Termination of contract—Removal of all District Government Counsels in the State en bloc by the State Government—Non compliance of procedure laid down in Legal Remembrancer’s Manual—The engagement of Government counsel is not purely contractual but has public element—Order of termination set aside.

The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy.

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State of U.P. and Ors. etc. v. U.P. State Law Officers Association and Ors. etc- 25/01/1994

The mode of appointment of lawyers for the public bodies has to be in conformity with the obligation cast on them to select the most meritorious.

An open invitation to the lawyers to compete for the posts is by far the best mode of such selection. But sometimes the best may not compete or a competent candidate may not be available from among the competitors. In such circumstances, the public bodies may resort to other methods such as inviting and appointing the best available, although he may not have applied for the post. Whatever the method adopted, it must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merit and not for any other consideration.


CASE NO: Appeal (civil) 662-68 of 1991

State of U.P. and Ors. etc.


U.P. State Law Officers Association and Ors. etc.

DATE : 25/01/1994




Leave granted in S.L.P. Nos. 14525 and 4912 of 1991.

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Leave rules for the Judicial Officers of the Criminal Courts in West Bengal

Rules 489 to 497 of Criminal Rules and Orders

West Bengal Service Rule Part -1 Chapter 15

Bengal Government Servants’ Conduct Rules, 1975

The West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980

The Prevention of Corruption Act, 1947

  •  Casual Leave- 15 days in a Calendar Year
  • Maximum permissible period for absence- 5 years

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No rule can be struck down merely because it has been wrongly interpreted by the Government so as to defeat the object of advancing the cause of higher merit.

Law Library

No rule can be struck down merely because it has been wrongly interpreted by the Government so as to defeat the object of advancing the cause of higher merit.

A rule can not be struck down merely because it has been wrongly interpreted by Government

Supreme Court guidelines

(a) AIR 1963 SC 591 (Khandige Sham Bhat v. Agricultural Income-tax Officer).

(b) AIR 1993 SC 1947 (Venkateswara Theatre v. State of Andhra Pradesh)

(c) AIR 1980 SC 2056 (Kamal Kanti Dutta v. Union of India)

(d) AIR 1986 SC 1205 (Municipal Corporation, Ahmedabad v. Jan Mohammed Usmanbhai) relying upon AIR 1980 SC 2056 Paras 38, 58, 67.

(e) AIR 1981 SC 1922 (K. P. Varghese v. Income Tax Officer, Ernakulam) Para 11 at Page 1932

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Gelus Ram Sahu and others Vs. Dr. Surendra Kumar Singh and others-18/02/2020

This Court in a range of decisions including TR Kapur v. State of Haryana3, K Ravindranath Pai v. State of Karnataka4 and K Narayanan v. State of Karnataka5, has opined that vested rights cannot be impaired by enacting law with retrospective effect and that such statutory rules ought not to result in any discrimination or violation of constitutional rights.


Gelus Ram Sahu and others Vs. Dr. Surendra Kumar Singh and others

[Civil Appeal No.1667 of 2020 arising out of Special Leave Petition (C) No. 32417 of 2016]

[Civil Appeal No.1668 of 2020 arising out of Special Leave Petition (C) No. 10647 of 2017]

1. Leave Granted.

2. The appellants are aggrieved by the order dated 28.09.2016 of the High Court of Chhattisgarh through which the writ petition filed by Surendra Kumar Singh (Respondent No. 1) seeking declaration of Ph.D. being an essential qualification for the post of Principal at the Polytechnic colleges was allowed and consequently appointment of the appellants were quashed for want of the said qualification.

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The Secretary, Ministry of Defence vs Babita Puniya & Ors-17/7/2010


For this reason, we have noticed that the engagement of women in the Combat Arms has been specifically held to be a matter of policy by the judgment of the Delhi High Court and which is not in question in the present appeals. …………That in our view is not the manner in which the steps taken progressively by the Union Government to bring women into the mainstream of the Army (except the Combat Arms) can be viewed. The salient decision of the Union Government to extend PCs to women SSC officers in all ten streams in which they are commissioned is a step forward in recognising and realising the right of women to equality of opportunity in the Army. This marks a step towards realising the fundamental constitutional commitment to the equality and dignity of women”.



Civil Appeal Nos 9367-9369 of 2011

The Secretary, Ministry of Defence …Appellant


Babita Puniya & Ors. …Respondents


Civil Appeal Nos 1127-1128 of 2013

And With

Civil Appeal No. 1210 of 2020

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SC can`t direct Govt to provide reservation and States are not bound to make reservation for ST and SC in matters of promotions.


It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts. Similarly, the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions.




Civil Appeal No. 1226 of 2020
[Arising out of S.L.P. (Civil) No. 23701 of 2019]

Mukesh Kumar & Anr. …. Appellant(s)


The State of Uttarakhand & Ors. …. Respondent(s)

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Apex Court is in favour of disclosing marks of Main Exam before conducting viva-voce in Judicial Services-13/12/2019


As the written examination assesses knowledge and intellectual abilities of a candidate, the interview is aimed at assessing their overall intellectual and personal qualities which are imperative to hold a judicial post.

Disclosing mark of written Examination before Viva-Voce-As regards the petitioners’ plea that marks of the Main Exam should be disclosed before conducting viva-voce, we are of the considered opinion that such a practice may not insulate the desired transparency, rather will invite criticism of likelihood of bias or favourtism. The broad principles to be laid down in this regard must be viewed keeping in view the selections for various categories of posts by different Selecting Authorities, for such a self-evolved criteria cannot be restricted to Judicial Services only. If the Members of the Interviewing Boards are already aware of the marks of a candidate secured in the Written Examination, they can individually or jointly tilt the final result in favour or against such candidate.The suggested recourse, thus, is likely to form bias affecting the impartial evaluation of a candidate in viva-voce. The acceptance of the plea of the petitioners in this regard will also run contrary to the authoritative pronouncement of this Court in Ashok Kumar Yadav and Others v. State of Haryana((1985) 4 SCC 417).

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Selection process-the norms existing on the date when the process of selection begins, will control the selection and the alteration to the norms would not affect the ongoing process unless the new Rules are to be given retrospective effect.



CIVIL APPEAL NO. 9100 OF 2019 (Arising out of SLP(C) No. 23677 OF 2019)




Act: Assam Service Commission (Conduct of Business) Procedure, 2019


Hrishikesh Roy, J.

1. Leave granted.

2. This appeal arises out of the Special Leave Petition (Civil) No. 23677 of 2019. The Assam Public Service Commission (for short “APSC”) has approached this Court to challenge the judgment and order dated 8th August, 2019 in W.P. (C) No. 4600 of 2019 whereby the Gauhati High Court struck down a portion of Clause 12.2 of the Assam Service Commission (Conduct of Business) Procedure, 2019 (hereinafter referred to as “the 2019 Procedure”). The following portion of Clause 12.2, incorporated with effect from 1st April, 2019, under the 2019 Procedure, was struck down by the High Court.

“…………and any proceeding in relation to interviews, selections or competitive examination pending on the date of commencement of these Procedures may be continued and completed in accordance with the provisions of the Rules in force prior to such commencement.”

3. The result of the above is that the norms of selection for an ongoing process gets changed mid-stream in course of recruitment, for the 65 vacancies of Assistant Engineer (Civil) under the Water Resources Department for which, the APSC had issued an advertisement on 21st December, 2018 (“Annexure P-I”). On the date of the advertisement, the previous norms i.e. the Assam Public Service Commission (Procedure and Conduct of Business) Rules, 2010 (hereinafter referred to as “the 2010 Rules”), were in operation. The 2010 Rules provided for assessment of academic merit, special knowledge, additional relevant qualification, relevant service experience etc. under Rule 29 and 30, in the following manner: –

“29. The Commission may determine the qualifying standard by giving weightage on academic merit, subject knowledge, additional relevant qualification, service experience relevant to the post etc. for preparing the final order of select list.

30. In the viva-voce test marks shall be allocated as below:

(i) 50% on academic/professional qualification/service experience relevant to the post/preferential qualification.

(ii) 50% for subject knowledge and general bearing. Out of this, 20% shall be for subject knowledge and the remaining 30% for general bearing.

There shall be five gradings for Adviser/Expert’s marks viz., ‘Excellent’, ‘Very Good’, ‘Good’, ‘Fair’ and ‘Average’, the value of which shall be determined by the Commission.”

4. The aforesaid 2010 Rules were challenged by one Manash Pratim Baruah in the Gauhati High Court through W.P.(C) No. 1998 of 2017. He contended that the State Public Service Commission is not empowered to adopt any Rule in the nature of the 2010 Rules as was done by the APSC, by invoking the powers under proviso to Article 320 of the Constitution of India. During the pendency of the Writ Petition, the 2010 Rules were repealed and a new set of procedure i.e, “The Assam Public Service Commission (Conduct of Business) Procedure, 2019” came into effect, from 1st April, 2019. Accordingly, the APSC through their affidavit filed in the W.P.(C) No. 1998 of 2017 informed the High Court about adoption of the 2019 Procedure.

5. During that period, acting on the advertisement (dated 21.12.2018) to fill up the 65 posts of Assistant Engineer (Civil), the APSC on 12.06.2019 had notified that an OMR based screening test, with multiple choice objective type questions, will be conducted on 30.06.2019. The said screening test was conducted under the 2010 Rules and as such there was no negative marking which was introduced for the first time by the 2019 Procedure, for the APSC conducted selections.

6. The four respondents had offered their candidature by responding to the advertisement dated 21st December, 2018 and they appeared in the screening test conducted on 30.06.2019. Nevertheless they also filed the W.P.(C) No. 4600 of 2019 challenging Clause 12.2 of the 2019 Procedure which provided that notwithstanding the repeal of the 2010 Rules, the action taken under the repealed Rules including conduct of interview/selection or competitive examination or declaration of any result thereof by the APSC, shall be deemed to have been valid and the pending interviews/selections or competitive examinations may be continued and completed, in accordance with the 2010 Rules. The basic challenge therefore, by the four respondents as writ petitioners, was to the saving clause for the ongoing recruitment process conducted under the 2010 Rules. It would be relevant to mention at this stage that in view of the adoption of the 2019 Procedure by repealing the 2010 Rules, the earlier W.P.(C) No. 1998 of 2017 was disposed of as infructuous on 16th July, 2019 by the High Court reserving the liberty to the writ petitioner to assail, if aggrieved, the newly formulated 2019 Procedure.

7. The Gauhati High Court on 22.07.2019 issued returnable notice in the W.P.(C) No. 4600 of 2019 and the Division Bench after noticing that the APSC is conducting large number of examinations made an observation that attempt would be made to dispose of the matter on the returnable date i.e. 08th August, 2019.

8. The case was next considered on the returnable date and the High Court under the impugned judgment dated 08.08.2019 held that the 2010 Rules will have no application for those interviews/selections for which, exercise has not begun. The Court also observed that the advertisement issued prior to 01.04.2019 (the date of commencement of the 2019 Procedure) has no relevance for the applicability of the 2019 Procedure and accordingly held that even in a situation where the written examination was held but interview is yet to be conducted, the newly introduced 2019 procedure has to be applied in the interview segment of the selection. It was finally observed that all pending interviews/selections and competitive examinations, even if occasioned by advertisements issued prior to 01.04.2019 shall be guided by the 2019 Procedure. The Writ Petition of the respondents was accordingly allowed on 08.08.2019 by the High Court.

9.1 Assailing the legality of the impugned judgment, Mr. Parthiv K. Goswami, learned counsel submits that currently the APSC, besides conducting the subject recruitment/selection for the Water Resources Department, is also undertaking selection process for the posts of, inter alia, Computer Operator/Typist, Forest Ranger, Agricultural Development Officer for which respective advertisements were issued prior to incorporation of the 2019 Procedure and the process of selection through screening test/written test were conducted under the 2010 Rules. Insofar as the recruitment for the 65 posts of Assistant Engineer (Civil) advertised on 21.12.2018, the learned counsel points out that the last date for applying for the post was stipulated as 02.02.2019 and thereafter around 6000 applicants including the four respondents, appeared for the screening test conducted on 30.06.2019 under the 2010 Rules. Adverting to these relevant dates, the appellants would argue that the process of selection in the present case had commenced with the issuance of advertisement well before the 2019 Procedure was notified with effect from 01.04.2019 and therefore, the selection should be in accordance with the 2010 Rules which prevailed on the date of the advertisement.

9.2 The appellant’s counsel then argues that alteration of the selection norms by the APSC through the 2019 Procedure which has prospective application, should have no bearing on the ongoing process, on account of the savings clause incorporated in the 2019 Procedure.

10.1 Per contra Ms. Rekha Pandey, learned counsel appearing on behalf of respondent Nos. 1 to 4 (writ petitioners) by referring to the preamble of the 2019 Procedure argues that the new Procedure was adopted to bring in more transparency in the conducting of recruitment by the Commission, on account of the deficiencies noticed in the process in the 2010 Rules. She accordingly argues that adopting the 2019 Procedure for the viva-voce segment of the recruitment exercise would ensure weightage for merit and avoidance of arbitrary selection, which was possible under the 2010 Rules.

10.2 The respondents counsel then refers to Rules 29 and 30 of the 2010 Rules to highlight that the procedure envisaged did not provide adequate weightage to test the merit of the candidates, on their academic/professional qualification, service experience, etc. and therefore, the 2019 Procedure should govern the next phase of selection.

11. To deal with the rival submission, the relevant clauses in the process of selection envisaged under the 2019 Procedure, will bear consideration. The concept of negative marking is introduced for the first time under Clause 4(B)(ii) which provides that for each wrong answer, @ 0.25 marks are deducted against each question. Besides the Clause 4(B)(vi) stipulates that marks for the interview shall not exceed 12.2 per cent of the total marks. The screening test in which the respondents and other candidates appeared on 30.06.2019 under the 2010 Rules as earlier noted, had no negative marking and, therefore, the candidates could take the risk of guessing the correct answer in the multiple choice test, without the fear of being penalised for incorrect answer.

12. In the above backdrop, if the next segment of selection is to be conducted under the 2019 Procedure, the performance of the candidate in the aforenoted screening test to the extent of 87.8 per cent of the total marks, will determine the final selection of the candidate. The question, therefore, is whether this would be fair on the candidates when the performance of few would be determined more by lucky guess and the real merit may have no role in the aggregate score. The other relevant question is whether the method of selection should be permitted to be changed midway, by adopting the 2019 Procedure incorporated with effect from 01.04.2019 for the vacancies, which were advertised on 21.12.2018.

13. The law with regard to applicability of the Rules which are brought anew during the selection process have been crystalized by this Court. It has been held that the norms existing on the date when the process of selection begins, will control the selection and the alteration to the norms would not affect the ongoing process unless the new Rules are to be given retrospective effect. (See State of Bihar and Others vs. Mithilesh Kumar1). Similarly in N.T. Devin Katti and Others vs. Karnataka Public Service Commission and Others2, this Court held that a candidate has a limited right of being considered for selection in accordance with the Rules as they existed on the date of advertisement and he cannot be deprived of that limited right by amendment of the Rules during the pendency of the selection, unless the Rules are to be applied retrospectively.

14. If we proceed with the above enunciation of the law in Mithilesh Kumar (supra) and N.T. Devin Katti (supra), the conclusion is inevitable that for the current recruitment process for which advertisement was issued on 21.12.2018, the 2019 Procedure (which came into effect from 01.04.2019) can have no application, particularly when the first phase of the selection i.e. the screening test was conducted under the 2010 Rules.

1 (2010) 13 SCC 467

2 (1990) 3 SCC 157

15. One must also be conscious of the savings Clause 12.2 incorporated in the 2019 Procedure which makes it abundantly clear that the interviews/selection or competitive examinations pending on the date of commencement of the Procedure should be continued and completed, in accordance with the 2010 Rules.

16. In the present case, if the contention advanced by the respondents is accepted and the next segment of the process of selection is carried out under the 2019 Procedure, it will give rise to an anomalous situation inasmuch as the screening test which was conducted without negative marking, under the 2010 Rules, without provisions for negative markings, will have a major bearing in the final outcome of selection. This would definitely prejudice the candidates who have undertaken exams under 2010 Rules. The consistent law on the issue also makes it clear that recruitment process pursuant to the advertisement issued by the APSC on 21st December, 2018 must necessarily be conducted under the selection norms as applicable on the date of the advertisement. Moreover, having regard Rule 29 and Rule 30 of the 2010 Rules, it must also be said that merit of the candidates would definitely be assessed in the selection exercise, undertaken by the APSC. The APSC is also capable of conducting a fair selection and we believe that they will keep in mind, the lawful expectation and the constitutional mandate.

17. If the direction in the impugned judgment of the High Court is to be followed for conducting the next segment of the selection, for the single recruitment process the candidates will be evaluated by two different sets of procedure i.e. the 2010 Rules and the 2019 Procedure and such dual norms must not in our opinion, govern the ongoing recruitment process.

18. In view of the foregoing, we are persuaded to hold that the recruitment process initiated by the APSC through the advertisement dated 21.12.2018 for the 65 posts of Assistant Engineer (Civil), of the Water Resources Department should be finalised under the 2010 Rules. Consequently, the direction issued for application of the 2019 Procedure in the impugned judgment is found to be not merited and the same is accordingly interfered. The appeal stands allowed by permitting the APSC to complete the process of selection for the advertised posts, by following the 2010 Rules.




NOVEMBER 28, 2019