State Of Tripura And Ors vs Samudra Debbarma And Ors

Akil Kureshi, CJ

[1] This appeal is filed by the State of Tripura to challenge a judgment of the learned Single Judge dated 14th May, 2019 rendered in WP(C) No.831/2018 by which the learned Judge was pleased to allow the writ petition filed by the respondent No.1 herein and quash and set aside notifications dated 5th June, 2018 and 20th August, 2018 in so far as they relate to Tripura Civil Service ('TCS' for short) Grade-II and Tripura Police Service ('TPS' for short) Grade - II.

[2] Brief facts are as under :

The original petitioner Somendra Debbarma belongs to Scheduled Tribe community. Tripura Public Service Commission ('TPSC' for short) had issued advertisement No.04/2016 on 30th April, 2016 inviting applications from eligible candidates for selection to the post of TCS and TPS Grade-II, Group - A Gazetted services. A total of 30 vacancies were notified for selection in TCS Grade-II service out of which 6(six) posts were reserved for Scheduled Caste ('SC' for short) candidates, 11(eleven) for Scheduled Tribe ('ST' for short) and 13(thirteen) for unreserved candidates. The minimum educational qualification required was a bachelor's degree from a recognized university. Upper age limit for the eligible candidates was 40(forty) years for unreserved candidates and 45(forty five) years for SC and ST candidates.

[3] The petitioner was eligible to apply for the post in question. He applied for the same and appeared in the preliminary examination in the nature of a screening test held on 10th September, 2017. He was, thereafter, provisionally allowed to appear in the written examination which was conducted during the period between 29th December, 2017 to 21st January, 2018. On 14th March, 2018 the Government of Tripura issued a memorandum suspending all pending recruitment and selection processes. This memorandum reads as under :

"Sub : Recruitment/selection process in all Department kept in abeyance.

The undersigned is directed to state that the State Government has decided that the recruitment process of the Government shall be reviewed and pending such review, all the ongoing recruitment/selection processes in Departments/ autonomous bodies etc. under the Government, shall be kept in abeyance with immediate effect. However, the recruitment process initiated on the directions of Hon'ble Supreme Court/High Court or any other court with the State shall not be stopped without obtaining specific orders from the concerned court in this regard.

All Departments/Heads of Departments, Autonomous bodies are, therefore, requested to comply the same and make necessary arrangement for further circulation of the aforesaid instruction to their subordinate offices also for necessary compliance."

[4] On 5th June, 2018 the State Government issued a notification laying down new recruitment policy. The contents of the notification read as under :

"In supersession of all earlier instructions in connection with selection/recruitment of different categories of candidates by direct recruitment for government employment under the administrative control of Government of Tripura, the State Government has decided the following principles :-

1.1 Written test should be the primary means to test suitability of candidates for Government jobs. The test should be designed in such a manner that the required skills and competencies can be tested in an online mode. For such posts where special skills are required, separate proficiency/personality test may be taken in a transparent manner.

1.2. Interview should be completely abolished for Group-D posts however soft skill test may be taken.

1.3 Interview should ordinarily, not be taken for B and C category of posts. However, only in exceptional circumstances, for certain categories of Group B and C posts, where justification is given by the Department concerned, provision for interview/skill test may be kept with prior approval of the Cabinet. Further, wherever such a provision is kept, the weightage for interview/skill test should not exceed 10% of total marks and the interview should be video-graphed.

1.4. The Group-A, Group-B and C posts which are at present covered by TPSC will continue to be filled as per the existing practice. However, weightage for the interview should not exceed 10% of total marks. In exceptional case weightage of interview may be increased beyond 10% with the approval of cabinet, if sufficient justification exists.

1.5 There are certain Group - A posts, which are at present outside the purview of TPSC. For the time being, this system may continue subject to the condition that the processes shall be made more fair, open and transparent. Adequate changes shall be made in the recruitment process/rules for these posts so that selection is done on the basis of written exam followed by interview with weightage of latter not being more than 10%. Further, review should be taken up by the concerned Departments to narrow down this category so that over a period of time, as far as practicable, all such posts are filled through recruitment conducted by TPSC.

1.6 Keeping in view the need to have a highly professional cadre at higher positions in the Government, recruitment for the left over (remaining Group-B) posts should also be taken up by TPSC.

1.7. The posts in Police, Fire Service and jail Department which are currently outside the purview of TPSC should be filled by the respective Departments subject the overall principles proposed at Para - 1.1, 102 and 1.3 above.

1.8 There is a need to revise the existing Recruitment Rules (RRs) such that there is proper mapping/correlation between the qualification, competencies and the job profile. Further, in such cases where there is similarity in the nature of jobs or jobs are common across various Departments, The RRs have to be suitably revised to bring in a greater degree of uniformity so as to facilitate common recruitment as far as practicable.

1.9 For the posts where there is intake by both direct recruitment and promotion, the intake ratio from each stream(direct and promotion) should, to the extent possible, be kept uniform across all the Departments.

1.10 The role of TPSC may be expanded and suitable manpower and resources may be placed at its disposal to enable it to ensure recruitment following the recruitment principles mentioned above.

1.11 A new institution may be set up which may take up the recruitments for all Group - B, C and D posts, excluding the posts covered in Para 1.4 above. This body may function within the broad principles proposed at Para 1.1, 1.2 and 1.3. For this, further follow up action may be taken by GA(P&T) Department.

All the above recommendations will be applicable with the prospective effect only.

The Revised General Employment Guidelines for all Departments of the State Government for selection of candidates by open interview for Group - C and Group - D posts to be filled up by direct recruitment issued vide Memorandum No.F.23(8)-GA(P&T)/14 dated 23rd July, 2016 is hereby repealed and replaced by this notification."

[5] On 20th August, 2018 the State Government decided that in view of the new recruitment policy all appointments should be made as per such policy and all the existing recruitment processes initiated by the respective Departments or TPSC would stand cancelled except the ongoing recruitment of Tripura Judicial Service Grade - III for which specific exemption has been accorded. Relevant portion of this memorandum reads as under:

"2. The State Government has now notified a New Recruitment Policy vide this Department's Notification of even number dated 05.06.2018. Accordingly, the Memorandum issued vide No.F.20(1)-GA(P&T)/18 dated 14.03.2018 now stands superseded.

The competent authority in the State Government has decided that in view of the New Recruitment Policy approved by the Government, all new appointments should be made as per the new Recruitment Policy and all existing recruitment processes initiated by the respective Departments or the TPSC, hereby, stand cancelled excepting ongoing recruitment of Tripura Judicial Service Grade - III only for which specific exception has been accorded in consultation with the Hon'ble High Court of Tripura.

As regards the candidates who had participated in the cancelled recruitment processes, they are to be given one time relaxation in upper age limit to enable them to participate once in the fresh recruitment process subject to providing documentary evidence of their participation in the earlier recruitment processes for the same post(s).

It is also directed that henceforth, all direct recruitment should be made strictly as per guidelines contained in the New Recruitment Policy issued vide Notification No.F.20(1)-GA(P&T)/18 dated 05.06.2018 together with prior concurrence of the Finance Department, the GA(P&T) Department and the approval of the Council of Ministers."

[6] The petitioner challenged the said decision of the State Government published under memorandum dated 20th August, 2018 contending that any change in the recruitment policy could not be applied to the present selection process was at an advanced stage. The petitioner pointed out that the screening tests as well as main examinations of all eligible candidates were already completed. At such stage, even if there was any change in the recruitment policy of the Government, the same could not be applied. The new policy would have applicability only in future selection processes. The petitioner consequently prayed that the memorandum dated 20th August, 2018 be quashed and set aside and the respondents be directed to complete the selection process for the recruitment in TCS Grade - II service as per the existing norms.

[7] The respondents resisted the petition by filing multiple replies. An affidavit dated 21st December, 2018 was filed by one Sri Animesh Das, the Deputy Secretary to Government of Tripura, General Administration Department (Personnel and Training) in which it was stated that pending review of the recruitment policy the Government had under memorandum dated 14th March, 2018 suspended the pending selection processes. Subsequently, new recruitment policy was formulated and promulgated under notification dated 5th June, 2018. By the impugned memorandum dated 20th August, 2018 therefore, pending selection processes were cancelled.

[8] Yet another affidavit in reply dated 14th February, 2019 was filed by the same officer stating that with a view to achieving impartial, lawful, fair and transparent employment in the Government the State Government had decided to cancel the existing recruitment policy which was substituted by a new policy. This policy in particular provides that except in exceptional cases weightage for oral interview should not exceed 10% of the total marks.

[9] Before the learned Single Judge detail submissions were made by both sides, petitioner mainly taking up the contentions that the selection process which had already commenced and reached the advanced stage could not be cancelled on account of any change in the recruitment policy. The new policy dated 5th June 2018 itself provided that the same would have prospective effect. It was contended that the principle that the rules of the game cannot change after the game has commenced would squarely apply. It was argued that the Government decision was devoid of any logic. Even an executive decision can be questioned on the touchstone of reasonableness flowing from Article 14 of the Constitution of India.

[10] On the other hand, on behalf of the Government it was contended that being a policy matter, judicial review would be limited. The Government had laid down new recruitment policy. A conscious decision was taken that such policy would be applicable to all pending selection processes. The selections were, therefore, cancelled.

[11] The learned Single Judge by his impugned judgment set aside the notification dated 5th June, 2018 and the memorandum dated 20th August, 2018 insofar they relate to TCS Grade-II and TPS Grade-II services. This decision of the learned Single Judge, as noted above, has been challenged by the State Government.

[12] Appearing for the Government learned Advocate General submitted that the learned Single Judge has committed a serious error in interfering with the State policy. New recruitment policy was framed for achieving greater transparency in selection and recruitment processes. Such policy was made applicable to the existing selection processes which were not yet over. Being a policy decision judicial review would be extremely limited. The petitioner had no vested right to be appointed to the post in question merely because he was eligible for appointment to the post. It is well settled that even a person who is included in the select list does not have an indefeasible right of appointment. It is always for the Government for valid reasons to cancel the selection at any stage including at the stage of preparation and declaration of select list, before the offer of appointment is made. In the present case, the Government had valid reasons for cancelling the selection process which had not even culminated into drawing of the select list. Result of the written test was yet to be declared. The oral interviews were not conducted.

[13] The learned Advocate General drew our attention to the additional documents allowed to be produced in this appeal, one of them was a communication of the Government of India dated 4th September, 2015 under which it was conveyed that the Hon'ble Prime Minister has declared that the Government should discontinue holding interviews for recruitment for junior level posts where personality assessment is not absolutely necessary. It was pointed out that pursuant to this communication the State Government had formulated a Committee under the Chairmanship of Chief Secretary under notification dated 21st September, 2015 to recommend making suitable provisions in this regard. Learned Advocate General, has therefore argued that under the new recruitment policy dated 5th June, 2018 the Government had abolished oral interviews for Group - D posts.

(14) In support of his contentions learned Advocate General relied upon following decisions :

(i) In case of Tanmoy Nath and Ors. Vs. State of Tripura and Ors., reported in (2014) 2 TLR 731 in which in the context of selection of teachers for appointment it was observed that clear-cut guidelines should be laid down as to how the interview boards are to award marks to the candidates for oral interview. Awarding of marks cannot be left to the discretion of members of the interview board.

(ii) In Case of Kulwinder Pal Singh and Anr. Vs. State of Punjab and Ors., reported in (2016) 6 SCC 532 in which it was held that merely because the name of a candidate finds place in the select list, it does not give him indefeasible right to appointment. It is always open to the Government not to fill up the vacancies.

(iii) In case of Lt. CDR. M. Ramesh Vs. Union of India and Ors., reported in (2018) 16 SCC 195 in which also it was observed that a selectee has no indefeasible right to appointment nor is the State under duty bound to fill up the vacancies. It was, however, observed that decision not to fill up the vacancies pursuant to selection process, must be taken bona fide and for justifiable and proper reasons.

(iv) In case of Jitendra Kumar and Ors. Vs. State of Haryana and Anr., reported in (2008) 2 SCC 161 in which it was observed that selected candidates do not have an indefeasible right to appointment. Bona fide decision taken by Government not to make appointments should not be interfered with by the Court.

(v) In case of State of A.P. and Ors. Vs. D Dastagiri and Ors., reported in (2003) 5 SCC 373 in which similar observations were made. It was observed that even if selection process is complete the selected candidates do not get any vested right to claim appointment. Since Government is entitled to take a policy decision consequent non-appointment cannot be termed as arbitrary.

Thus the main thrust of the contention of the learned Advocate General based on the above decisions was that a candidate has no indefeasible right to appointment simply because his name is included in the select list and it is always open for the Government not to make appointment pursuant to such select list. His argument also was that for greater transparency and uniformity in the selection process the new Government policy had restricted the marks for oral interviews. On account of such change in the policy the Government had decided to discard the selection process and restart it all over again, while granting age relaxation to the candidates who had already appeared in the ongoing selection process.

[15] On the other hand, Mr. S M Chakraborty, learned senior counsel, appeared for the respondent No.1, (the original petitioner) and opposed the appeal. He reiterated the stand taken by the petitioner before the learned Single Judge. He submitted that the selection process had advanced to the stage of conducting written main examination. Any change in the policy could not be applied to the said process. The decision of the Government was without valid reasons. The learned Single Judge has correctly struck down the impugned memorandum.

[16] Before we address the factual and legal issues, a few broad principles applicable in the present case may be noted. Learned Advocate General is perfectly justified in suggesting that in a policy matter formulated by the State Government through conscience decision, the scope of judicial review would be extremely narrow. If we were called upon to decide the correctness of the policy decision of the Government declared under the new recruitment policy dated 5th June 2018, his argument would undoubtedly prevail. In the present case, however, we are not called upon to decide any of the policy parameters laid down by the Government particularly through the said notification dated 5th June, 2018 under which the Government laid down new guidelines for selection processes of various posts under the State Government. We are only called upon to decide whether such policy change could be applied to a selection process which had advanced to the stage of conducting written main examination of those eligible candidates, who had passed the preliminary screening test.

[17] The learned Advocate General was also correct in pointing out that no candidate has an indefeasible right of appointment merely because he is qualified to apply for the post in question. Mere qualification for being appointed to a post in question gives no right to a candidate of appointment. The Courts have also held that a person who is placed in the select list, does not have an indefeasible right to be appointed to the post in question and it is open for the Government, for valid reasons, to cancel the selection and refuse to make the appointment pursuant to such select list. However, any such decision must be based on proper reasons and cannot be an arbitrary decision. A reference in this respect can be made to the decision of Supreme Court in case of State of A.P and Ors. Vs. D Dastagiri and Ors. reported in (2003) 5 SCC 373.

[18] In case of Kulbindar Pal Singh and Anr. Vs. State of Punjab and Ors., reported in (2016) 6 SCC 532. It was observed that it is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Following observations may be noted :

"12. In Manoj Manu and Anr. v. Union of India & Ors. (2013) 12 SCC 171, it was held that merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to Government to fill up the vacancies. As noticed earlier, because twenty two other candidates were declared successful by the Supreme Court pertaining to the selection of the years 1998, 1999, 2000 and 2001 as Civil Judges (Junior Division), they were to be accommodated, as rightly resolved by the Administrative Committee in the meeting dated 06.07.2011. The three resultant vacancies of the year 2007-2008 stood consumed with the joining of the said seventeen candidates and the same could not be filled up from the select list of that year. The decision of the Administrative Committee observing that the three resultant vacancies stood consumed is based on factual situation arising there and cannot be said to be arbitrary."

[19] It is equally well established that every executive decision of the Government must be fair and reasonable and cannot be arbitrary. Such decision can therefore be questioned on the touchstone of Article 14 of the Constitution. The Constitution Bench of the Supreme Court in case of E.P. Royappa Vs. State of Tamil Nadu & Anr., reported in (1974) 4 SCC 3 has observed that Articles 14 and 16 of the Constitution strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality.

[20] In Kumari Shrilekha Vidyarthi and Ors. Vs. State of U.P and Ors., reported in (1991) 1 SCC 212 it was observed that Article 14 would apply to all executive actions of the State. It was further observed that Article 14 applies also to the matters of governmental policy and if the policy or any action of the Government fails to satisfy the test of reasonableness, it would be unconstitutional.

[21] It is equally well settled through series of decisions of Supreme Court that in terms of selection and appointment to public posts, the essential conditions of selection cannot be changed midway through the selection process. The Courts have coined the phrase that "the rules of the game cannot change after the game has begun."

[22] In Tamil Nadu Computer Science Bed Graduate Teachers Welfare Society(1) Vs. Higher Secondary School computer Teachers Association and Ors., reported in (2009) 14 SCC 517 a three Judge Bench of the Supreme Court considered a case where guidelines of recruitment through a policy decision were laid down. The existing guidelines provided for qualifying marks to be 50%. After conduct of the examination, candidates securing a minimum 35% marks were also called for verification of certificates. In background of such facts, the Court held that the Government had reduced the minimum qualifying marks for the post in question which was contrary to the earlier decision. The Government had thus changed the rules of recruitment midway after the selection process was initiated. Such decision was set aside. Following observations were made:

"20. It is thus established, that the State Government reduced the minimum qualifying marks for the post of Computer Instructors to 35% which is contrary to an earlier decision taken in a meeting held on 10.10.2006 that the minimum qualifying marks for filling up the posts of Computer Instructors would be 50% i.e. 75 marks out of total 150 marks. It is thus established that the Government changed the rules of recruitment and terms and conditions of appointment in the mid-way after the selection process was initiated. The said decision was taken on a Sunday i.e. on 12.10.2008, after the candidates had taken their exams.

It also transpires from the record that out of 1686 candidates only 894 candidates had in fact secured 50% marks i.e. 75 marks out of 150 marks whereas 792 candidates secured marks between 35% and 50% i.e. less than 75 marks out of 150 marks. It is also indicated from the said result published that out of 1714 candidates, who had taken the special recruitment test it is 1686 candidates who were found to have secured more than 35% marks, and they were provisionally selected for certificate verification.

The appellants have challenged before us the aforesaid alleged arbitrary decision of the Government in conducting a special recruitment test against the Rules and Guidelines issued for the recruitment of Computer Instructors and also by altering the minimum qualifying marks from 50% to 35% so as to absorb a larger number of candidates of its choice and thereby violating its own norms and guidelines."

[23] In case of Bishnu Biswas and Ors. Vs. Union of India and Ors., reported in (2014) 5 SCC 774 the Supreme Court referred to large number of earlier decisions on the point and held that in the said case the rules of game had been changed after conducting the written test. It was the case in which the recruitment rules only provided for a written examination of 50 marks. After conducting the written examination candidates who had obtained a minimum 20 marks were called for oral interview, though such interview was not part of the recruitment process.

[24] With this background we may revert back to the facts of the case. The appointment to the post in question is governed by the Tripura Civil Service Rules, 1967 ('the Rules' for short). Rule 5 of the Rules pertains to method of recruitment. Rule 6 pertains to competitive examination. Sub-rule (1) of Rule 6 provides that the competitive examination for direct recruitment to the service shall be held at such intervals as the Government may in consultation with the Commission from time to time determine. The dates and the places at which the examination shall be held would be fixed by the Commission. Sub-rule (2) of Rule 6 provides that the qualifications for admission to examination and conduct thereof shall be in accordance with such regulations as the Government may, from time to time, issue in this behalf in consultation with the Commission. Rule 7 of the Rules provides that until the Government in consultation with the Commission decides otherwise, the combined competitive examination held by the Commission for recruitment to the Central Services, Class - I and Class - II, shall be competitive examination for recruitment to the service.

[25] In exercise of the powers conferred under Rule 6 of Tripura Civil Service Rules and Rule 6 of the Tripura Police Service Rules, 1967 the Government of Tripura had framed Tripura Civil Service and Tripura Police Service (Appointment by Combined Competitive Examination) Regulation, 2000 (hereinafter to be referred as the said 'Regulations'). These Regulations were amended from time to time. Under Tripura Civil Service and Tripura Police Service (Appointment by Combined Competitive Examination) Regulation (12th amendment) Regulation 2012, sub-regulation (1) of Regulation 11 of the said Regulations was amended as under :

"The Examination will be held in three successive stages namely (i) Preliminary Examination (Objective type) (ii) Main Examination (Conventional type-written) and (iii) Personality Test. A number of candidates, maximum 10(ten) times of total posts (category wise) will be selected merit wise on the basis of the result of the Preliminary Examination, subject to securing minimum qualifying marks as fixed by the Commission. These selected candidates will be allowed to appear in the Main Examination. The selected candidates on the basis of the results of the Main Examination will be allowed to appear in the Personality Test. The Preliminary Examination, Main Examination and Personality Test will carry 200 marks, 800 marks and 100 marks respectively."

[26] As per this amended sub-regulation (1), for the post in question the preliminary examination would be of 200 marks, the main examination would be of 800 marks and the personality test (oral interview) would carry 100 marks. These regulations also provide that the preliminary examination is meant only to be the screening test and the marks obtained in such examination by a candidate will not be considered for final selection. Only those candidates who will be declared qualified at the preliminary examination will be eligible for admission to the main examination. In other words, for selection to the post in question the aggregate of the main examination of 800 marks and personality test through oral interview of 100 marks would be considered. In the aggregate thus the marks would be allotted out of 900, 100 of which would be from the oral interview. The proportion of the oral interview as compared to the total marks would thus come to 11%.

[27] We have reproduced the entire notification dated 5th June, 2018 under which the State Government had published its new recruitment policy. One of the major thrusts of this policy was to abolish oral interviews for Group-D posts. However, we are not concerned with this policy change. In so far as Group A and B posts are concerned, this policy provides that the weightage for interview should not exceed 10% of the total marks. Only in exceptional cases the same may be increased beyond 10% with the approval of the Cabinet. There is no other change that this new policy makes insofar as the present selection process is concerned. We have noted that as per the existing policy which was being applied for the selection process which had already commenced, the proportion of oral interview to the total marks was 11%. As against this, the new policy prescribes a ceiling of 10% weightage for oral interviews.

[28] The Government while framing its policies, undoubtedly has a vast latitude. As long as the policy is based on a well-informed decision, the executive also has the liberty to experiment in policy formation. A policy change which restricts the preparation of marks for oral interview cannot be in absence of sound reasons faulted. Nevertheless, the question is, was it open for the Government to superimpose such policy and the changes brought about through such policy in the recruitment process which had travelled to an advanced stage? The answer to this question for multiple reasons must be in the negative. The reasons are as follows :

[29] Firstly, as noted, the new policy of the Government restricts the marks for oral interviews to 10% of the total. The existing formula being applied for selection to the posts in question carried oral interview weightage of only 11% which was fractionally higher than what the new policy prescribes. For such a minor policy change the entire exercise of inviting applications from eligible candidates, holding screening test for weeding out weaker candidates, allowing successful candidates passing the screening test to appear in the written examination and conducting the written examination could not have been be annulled. No pressing grounds are demonstrated before us for taking such a drastic measure for an insignificant change in the policy parameters.

[30] Secondly, allowing the Government to apply the policy change at such an advanced stage would undoubtedly breach the principle of changing the rules of the game once the game has begun. The fundamental philosophy behind the Courts laying down the said principle is that the executive discretion cannot be allowed to operate in such a way that midway through the selection process the very selection criteria can be changed. This would in addition to giving rise to uncertainty in public selection process, also be open to mala fide application where the rules for selection would be changed to suit so as to include certain wanted or to exclude unwanted candidates. In the present case, there may not be any element of bias. Nevertheless permitting the Government to bring in a new set of rules and to cancel the entire selection process which has travelled to an advanced stage has a risk potential to permit arbitrary decision of the executive to prevail. To frame a new recruitment policy may be a perfectly valid and legitimate policy decision of the Government. We do not intend to; in fact we are not even called upon to interfere with such policy decision. However, the subsequent decision of the Government to annul the entire selection process which had reached an advanced stage only so that the new policy of recruitment can be applied by restarting the selection was an arbitrary decision.

[31] There is yet another reason why the Government decision cannot survive the test of law. We may recall, the proportion of marks for the screening test, written main examination and oral interview have been prescribed under the relevant Regulations. These Regulations are in exercise of powers conferred under Rule 6 of the said Rules. These Regulations are thus in the nature of subordinate legislation. The prescription of the marks for written test and oral interview thus tress their origin to statutory Regulations. The field is thus not open and is occupied by legislation. Executive instructions cannot override such statutory prescriptions. By issuing an executive fiat it was, therefore, not open for the State Government to modify the proportion of the marks for oral interview. In other words, unless and until the Regulations are amended, the policy declaration under the notification dated 5th June, 2018 insofar as it pertains to limiting the marks for oral interview to 10% of the aggregate, would not prevail.

[32] For such reasons, we do not find any error in the view of the learned Single Judge in allowing the writ petition of the original writ petitioner. However, before closing couple of clarifications would be needed. Firstly, the learned Single Judge has struck down even the notification dated 5th June, 2018. This was neither under challenge nor shown to be in any manner unlawful, except to the extent the provisions made in the said notification conflict with the existing Rules and Regulations. Subject to these observations, the decision of the learned Single Judge to set aside the notification dated 5th June, 2018 must be reversed. Secondly, the learned Single Judge quashed the memorandum dated 20th August, 2018 insofar as it relates to TCS Grade-II and TPS Grade II. The petitioner had not challenged cancellation of examination of TPS Grade-II. Such cancellation, therefore, could not have been set aside. We are conscious that the considerations and parameters in both sets of recruitments may be similar. However there was no challenge before the learned Single Judge to the cancellation of the TPS Grade - II examination held by the State Government. The petitioner was not even aggrieved by it. Without a formal challenge, without full material being brought on record and arguments advanced by both sides it would not be proper to extend the relief to the recruitment of TPS Grade - II services also which as noted, the petitioner had never challenged. Such later directions for setting aside Government decision to cancel TPS Grade II examination of the learned Single Judge are also, therefore, reversed.

[33] The appeal of the Government is allowed to the above extent. However, so far as the petitioner's main challenge to the cancellation of selection process for the post of TCS Grade - II by virtue of impugned memorandum dated 20th August, 2018 is concerned, the decision of the learned Single Judge is confirmed.

[34] In view of the disposal of the appeal of the Government it would now be for the Government to complete the selection process for the post in question from the stage where it had been stopped. The remaining procedure may be completed within a period of 3(three) months from today.

Pending application(s), if any, also stands disposed of.