High Court
Case Details
WA 111/2013 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI JUDGMENT AND ORDER (CAV) [ A.K. GOSWAMI, J ] This Appeal by the Respondent No. 5 in the Writ Petition is filed against the Ju dgment and Order dated 30.04.2013 setting aside her selection and appointment as a Tourist Information Officer and also directing the Commissioner and Secretary to the Government of Assam, Tourism Department to issue appointment order to th e Writ Petitioner, who is arrayed as respondent No. 1 in this Appeal. 2. An advertisement dated 16.07.2009 was issued by the Assam Public Service Commission (APSC), inviting applications from eligible candidates to fill up, a mongst others, 6 posts of Tourist Information Officer under the Department of To urism, Government of Assam. 4 out of 6 posts were reserved for reserved category candidates.
Legal Reasoning
3. The case of the writ petitioner in the writ petition, in a nutshell, is that she was working as an Assistant Tourist Information Officer under the Touri sm Development Corporation Limited. Many other candidates including the responde nt Nos. 4 and 5 had submitted their candidatures for the post of Tourist Informa tion Officer in response to the advertisement dated 16.09.2009. The interview fo r the post was held on 03.09.2010 and the Select List was published by APSC on 0 1.01.2011. Being aggrieved by her non-selection, she took recourse to Right to I nformation Act, 2005, and obtained documents from which she could find that she had secured 78 marks while the respondent No. 4 and respondent No. 5 had secured 81 and 79 marks out of 100 marks, respectively, in the interview. Respondent No s. 4 and 5 were selected and appointed. 4.
Decision
It is pleaded in the writ petition that from the documents furnished, it appeared that no certificate relating to the respondent No. 4 being a holder of PG Diploma in Tourism was available in record. It is also pleaded that the resp ondent Nos. 4 and 5 were given 2 marks each for service experience though no Exp erience Certificates were furnished by them. Details of marking pattern as revea led from the documents furnished by APSC is highlighted to contend that the proc ess of selection was based on extraneous consideration and selection of the resp ondent Nos. 4 and 5, ignoring the better claim of the writ petitioner, is illega l and unjust. 5. The respondent No. 3 (APSC) had filed an Affidavit in which it is stated that marks were allotted based on the norms/marking pattern fixed by the APSC f or selection for the post of Tourist Information Officer for which 389 candidate s were interviewed and there was no extraneous consideration. It is asserted tha t all the candidates involved in the writ petition secured full marks under the head of ’Service Experience’ and marks under the head of ’Subject Knowledge’ was allotted by the (cid:28)Expert Adviser (cid:29) deputed by Government. It is stated that there were different heads like (i) Academical Qualification, (ii) Service Experience , (iii) Subject Knowledge and (iv) General Bearing. 6. The respondent No. 4 had filed an affidavit stating that though he belon ged to reserved category being a member of Other Backward Classes (OBC), he was placed in un-reserved category having secured the highest marks in the selection process. It is also pleaded that he had submitted all relevant documents. 7. The respondent No. 5 had filed an affidavit questioning the maintainabil ity of the writ petition, as the writ petitioner had not arrayed the 4 candidate s selected on the reserved category. She also denied that she did not have any s ervice experience and asserted that she secured marks under the different heads as per the guidelines. 8. We have heard Mr. A.K. Bhattacharyya, learned Sr. counsel for the appell ant, Mr. D.P. Chaliha, learned Sr. counsel for the writ petitioner/ respondent N o. 1, Mr. C. Baruah learned Standing Counsel for APSC/ respondent No. 4, Mr. B. J. Talukdar, learned Government Advocate for respondent Nos. 2 and 3 and Mr. R. Dubey, learned counsel appearing for the respondent No. 5. The learned Senior Counsel for the appellant submits that the appellant 9. is entitled to 3 extra marks, which had been denied to her on account of additio nal academical qualification as she is possessed of qualification of Master of T ourism Management. The learned Senior Counsel submits that even if the appellant was not entitled to 2 marks on account of service experience, if the 3 marks we re awarded, she would have still obtained 80 marks, which is 2 marks more than t he writ petitioner. It is contended by him that the writ petitioner had prayed f or a fresh selection for the post in question after setting aside the appointmen t of the respondent Nos. 4 and 5. Having regard to the prayer made, the learned Single Judge was not justified to direct appointment of the writ petitioner, he urges. It is submitted by him that the learned Single Judge fell into error in n ot examining the entitlement of the writ appellant to 3 extra marks on account o f additional academical qualification. It is also submitted by him that the writ petition merited dismissal on the ground of absence of selected candidates, who are necessary parties. Drawing attention to the observations of the learned Sin gle Judge, it is argued by him that this Court ought to order an enquiry as to h ow over-writings in the marks allotted to candidates came about. He has also ref erred to a decision rendered in the case of Union of India & Anr Vs. Ashutosh Ku mar Srivastava & Anr., reported in (2002) 1 SCC 188. 10. Mr. D.P. Chaliha, learned Sr. counsel for the respondent No. 1/writ peti tioner submits that the writ petitioner was challenging selection and appointmen t of the general category candidates and therefore, there was no occasion for hi m to make the reserve category selected candidates as respondents. He has submit ted that the plea of the appellant taken in writ appeal that she was denied 3 ma rks was not taken before the learned Single Judge and therefore, this Court may not entertain such a plea. It is contended by him that in the facts and circumst ances of the case, the learned Single Judge had moulded the relief in the intere st of justice. 11. Mr. R. Dubey, learned counsel for the respondent No. 5 submits that issu e finally hinged with regard to marks of the writ appellant and the writ petitio ner. He had secured 81 marks and therefore, the learned Single Judge interfered with the selection of the writ appellant only. 12. ks obtained by the candidates. Mr. C. Baruah, learned standing counsel, APSC has made available the mar The educational qualification for the post of Tourist Information Office 13. r was prescribed in the advertisement. The advertisement required that photo cop ies of certificates/mark-sheets from HSLC onwards and also Caste Certificate/Reg istration Certificate/Experience Certificate (where necessary) should be furnish ed invariably. 14. We may first deal with the contention of the writ appellant that the wri t petition ought to have been dismissed for non-joinder of necessary parties. As held by the Supreme Court in Udit Narayan Singh Malpaharia Vs. Additional Membe r, Board of Revenue, Bihar and Anr. reported in AIR 1963 SC 786, a necessary par ty is one without whom no order can be made effectively. The writ petitioner is a general category candidate and her selection and appointment was restricted to the posts earmarked for the general category. Her dispute was qua marks awarded to the respondent Nos. 4 and 5 only, who are also general category candidates. She has no issues with the advertisement. There is also no challenge alleging in herent infirmities vitiating the entire selection process. Therefore, we are of the opinion that there is no merit in the contention of the appellant. While the writ petitioner was categorical that the respondent No. 5 did 15. not furnish the Experience Certificate, the respondent No. 5 in her affidavit di d not say that she had furnished Experience Certificate. She only denied the all egation of her not having service experience and asserted that she had service e xperience, which was considered by the authority. In absence of a relevant certi ficate of experience, the respondent No. 5 could not have been granted 2 marks u nder the head of ’Service Experience’. In paragraphs 32 and 33 of the impugned j udgment, the learned Single Judge recorded his findings with regard to service e xperience of respondent Nos. 4 and 5 in the writ petition and legitimacy of mark s given to them. The same may be profitably reproduced herein below: (cid:28)32. Coming to the files containing the applications of respondent Nos. 4 and 5, it is seen that column 13 of the application form related to experience, par ticulars of which were required to be furnished. Supporting documents were also required to be attached. In case of both respondent Nos. 4 and 5, the said colum n had not been filled up. In the details of enclosures, respondent No. 4 had dis closed enclosing of the following certificates:- (1) (2) (3) (4) A perusal of the file also does not show furnishing of any document regarding se rvice experience of respondent No. 4. Similarly, respondent No. 5 had listed the OBC Certificate Birth Certificate Character Certificate - 2 Certificate of Sports. following documents as enclosed with the application form:- Original treasury challan Pass certificate of HSLC Examination Pass certificate of HS Examination Pass certificate of BA Examination Pass certificate of MTA Examination Mark-sheets of HSLC to MTA Examination Two signed passport photographs Two character certificates. (1) (2) (3) (4) (5) (6) (7) (8) A perusal of the file containing her application form and documents also does no t show submission of any such certificate of service experience. Thus, both respondent Nos. 4 and 5 did not claim any service experience 33. in their application forms and also did not enclose any document indicating any experience in service. Though they have stated in their affidavits that they had service experience, no such document has been enclosed by the said respondents to their affidavits filed in the present proceeding. But as already noticed abov e, both respondent Nos. 4 and 5 were awarded 2 marks for (cid:28)service experience (cid:29), w hich is the maximum mark fixed under the said heading. This award of 2 marks und er the hearing (cid:28)service experience (cid:29) to both respondent Nos. 4 and 5 was totally unjustified and was awarded without any basis as the said respondents did not de serve the said 2 marks. On the other hand, petitioner is working as an Assistant Tourist Information Officer under the Assam Tourism Development Corporation Lim ited, a Government of Assam Undertaking since 2002. The answering respondent, ha ve admitted this fact by offering no comments in their counter affidavits to thi s assertion of fact by the petitioner. Therefore, awarding of 2 marks to the pet itioner is justified. Since 2 marks were unjustifiably given to respondent Nos. 4 and 5, the same is required to be deleted from the total marks awarded to them . After deduction of the said marks, the following position emerges:- 1. Respondent No. 4 (Emon Choudhury) 81-2 2. Petitioner (Moitreyee Das) 3. Respondent No.5 (Fatima Firdosha Akhtar) 79-2 = = = 79 78 77 (cid:29) We do not find any reason to take a contrary view. The learned Senior Co 16. unsel for the appellant also, during the course of argument, did not dispute the fact that the appellant did not furnish Experience Certificate. Therefore, with the deduction of 2 marks given to her under the head of ’Service Experience’, t he marks of the writ appellant comes down to 77, less than the writ petitioner b y 1 mark. 17. xed with the writ petition. The pattern is as follows: The marking pattern, which was furnished to the writ petitioner, is anne 100 : 15 15 Marks allotted as follows : H.S.L.C. a) H.S.S.L.C. b) : c) Degree/Bachelor in (Science/Arts/Commerce from a recognised University OR Two years P.G. Degree or Diploma in Tourism and Travel Management OR Three Ye ars Diploma in Hotel Management and Catering Technology : e) f) g) h) Service Experience Additional Qualification (Relevant) General Bearing : Knowledge of the subject 30 15 20 : : 2 3 : 18. With regard to award of 3 extra marks on account of additional academic qualification, there is no dispute that the said plea was not taken before the l earned Single Judge. The writ petitioner had enclosed the recommendation made by the Expert Committee on selection on the basis of interview and qualification w hich contained the marks allotted under various heads. The writ petitioner was s hown to have secured 34 marks on academic qualification, writ appellant 27 marks and the respondent No. 5 in the Appeal 29 marks. There were no marks shown to h ave been awarded on account of additional academic qualification to any of the s aid 3 candidates. 19. The writ appellant, though did not raise any issue before the learned Si ngle Judge, in order to ensure that no injustice is caused to the appellant, we have perused the original mark-sheets of the writ appellant, which was part of t he mark-sheets placed before the Court by APSC. From the said mark-sheet we find that under the broad heading of ’Educational Qualification’ there are 5 sub-hea ds, namely, HSLC, HS, Graduation, Post Graduation and Additional Qualification ( Degree, Diploma, Certificate) and marks obtained under the head of (cid:28)Educational Qualification (cid:29) was put under a head ’Sub-Total’. We also find that the writ appe llant was given 3 marks on account of additional qualification which was under t he head of ’Educational Qualification’. 20. In Ashutosh Kumar (Supra) on which reliance was placed by the learned Se nior Counsel for the appellant, the Tribunal had proceeded to consider in what m anner the interview should have been conducted, whether the marks should have be en allotted in a particular manner or otherwise and whether award of certain mar ks was justified. The Tribunal had also proceeded to make its own assessment and had noted what marks should have been allotted to respondent No. 1. It is in th at context, the Apex Court said that Tribunal could not have sat in Judgment ove r the interview and allotted marks on its own and that so long as the bias of th e Selection Committee could not be proved, the only aspect that the Tribunal oug ht to have considered was whether there was compliance with the relevant Rules i n the conduct of Interview. In the instance case,, selection and appointment of the appellant is not set aside on the basis of comparative evaluation of the can didates by the learned Single Judge. The Selection Committee awarded 2 marks to the appellant under the head of (cid:28)Service Experience (cid:29), to which she was clearly n ot entitled to, she having not claimed any such experience and also not having e nclosed relevant certificate. It is not a case of the Court sitting in Judgment over the Interview Board or allotting marks on its own. 21. In the final analysis, the position that emerges is that while the writ appellant secured 77 marks, the writ petitioner had secured 78 marks. We are als o of the opinion that if being an established proposition of law that the writ C ourt can mould the relief in the facts and circumstances of the case, direction of the learned Single Judge in the fact of this case to give appointment of the writ petitioner cannot be held to be arbitrary or unjustified. Accordingly, we f ind no merit in this writ appeal and accordingly, the same is dismissed of. No c osts. However, before parting with the records, we observe that the over-writi 22. ngs, which have been alluded to by the learned Single Judge, had placed the writ appellant in a better position qua the writ petitioner. The learned Single Judg e had imposed a cost of Rs. 25,000/- for the manner in which the APSC had conduc ted itself. We leave it at that and refrain from ordering an enquiry, a course s uggested by the learned Senior Counsel for the appellant, during the course of h is submissions.