High Court · 2011

During the course of hearing of this batch of writ petitions, an order was passed on 10th February, 2011 directing the Director to cause publica tion of the notices in 2 (two) local dailies, 1 (one) in vernacular, i.e. in Ass amese, and another in English published from Guwahati having wide circulation in the State of Assam intimating those candidates, who were selected for viva-voce test, about filing and pendency of the writ petitions, fixing 4th March, 2011 f or their appearance, as all those candidates, who were successful in the written test, were not parties in the writ petitions though the result of such written test is under challenge. Such publications were made in 2 (two) newspapers, name ly, Assam Tribune (English) on 21st February, 2011 and in Asomiya Khabar (Assame se) on 20th February, 2011, pursuant to which a good number of candidates, who w ere selected in the written test, filed applications for their impleadment and a ccordingly they were impleaded as party respondents in the writ petitions, some of whom have also filed affidavits-in-opposition on receipt of the copy of the w rit petition filed. I have heard the learned counsel for the petitioners, the learne [3] d counsel appearing for the State respondents and also the learned counsel appea ring for the private respondents as well as the newly impleaded respondents. Challenging the result of the written test published by the Dire [4] ctor on 27th July, 2009 and their non selection, the learned counsel for the pet itioners, in those writ petitions, where such result is under challenge, has sub mitted that the entire selection process is vitiated (i) because of subsequent i ntroduction of cut off marks as well as change of the marks initially allotted f or viva-voce test, after the result of the written test was declared, thereby ch anging the rules of the games in the midway of the process of selection; (ii) fi xation of different cut off marks for male and female candidates, which amounts to gender discrimination, rendering the process unconstitutional; (iii) non eval uation of the answer scripts properly, as evident from the mistakes found by the Selection Committee in its proceeding dated 23rd July, 2009 and (iv) declaratio n of the result of the written test, on the basis of a sample exercise, namely s crutiny of some of the answer scripts of some of the candidates, who were initia lly found to be selected in the written test, without making such exercise in re spect of other candidates, who appeared in the written test, apart from the grou nd of applications of 30% quota for women under the provisions of the Assam Wome n (Reservation of Vacancies in Services and Posts) Act, 2005 (in short, (cid:28)2005 Ac t (cid:29)) as vertical reservation, resulting in a situation of excessive reservation, though the same is required to be worked out as a horizontal reservation. [5] Referring to the last advertisement issued by the Director and p ublished in the newspaper dated 20th August, 2008, it has been submitted by the learned counsel that out of 200 total marks allotted for the purpose of selectio n, 50 marks was allotted for the interview/viva-voce test, thereby stipulating t he criteria for selection, which was subsequently changed by the Selection Commi ttee constituted for that purpose in its proceeding dated 3rd February, 2009, wh erein a decision was taken to conduct the viva-voce test on the basis of 25 mark s, thereby changing the criteria for selection. It has also been submitted that the Selection Committee, in its meeting dated 26th May, 2009, has introduced th e cut off marks to be secured in the written test after declaration of the resul t of the written test on 27th July, 2008, though the same was required to be don e before conduct of such test. It has been submitted that once the process of s election commences, the rules of the selection cannot be changed, as has been do ne in the instant case by the respondents. [6] The learned counsel placing reliance on the proceeding of the Se lection Committee dated 24th June, 2009 has also submitted that different cut of f marks for male and female candidates were fixed in all the categories, namely Gen/SC/ST(P)/ST(H)/OBC/MOBC, by fixing lower cut off marks for the female candid ates than the male candidates, thereby fixing different criteria for the purpose of selection in the written test for male and female candidates, which amounts to gender discrimination, rendering the same unconstitutional, being violative o f the fundamental right guaranteed under Article 15 of the Constitution of India , which prohibits discrimination on the ground of sex. [7] It has also been submitted by the learned counsel that it is app arent from the proceeding of the Selection Committee dated 23rd July, 2009 that the Committee carried out the limited verification of the answer scripts of 1401 candidates, who were found to have secured the cut off marks fixed by the Commi ttee, out of total 41,959 numbers of candidates who appeared in the written test , thereby making scrutiny of the limited answer scripts only. Referring to the s aid proceeding, it has also been submitted that in such limited verification of answer scripts, the Committee having found that there were discrepancies in the marks allotted to certain candidates, ought to have carried out the re-verificat ion exercise in respect of all the answer scripts, so as to rule out any discrep ancies in the marks allotted. The learned counsel further submits that it is al so apparent from the proceeding of the Selection Committee dated 26th May, 2009 that all the members of the Selection Committee were not involved in preparation of centre wise booklets containing the marks secured by the candidates in the w ritten test, which was done by the Chairman of the Committee alone without invol ving the other members. That apart, the committee in the said proceeding dated 26th May, 2009 has arbitrarily fixed the number of candidates to be called for v iva-voce test, as 1260, which is in the ratio of 1:8.67, keeping in view the num ber of vacancies sought to be filled up, i.e. 145, though such ratio normally ou ght to have been around 1:4. The learned counsel, therefore, submits that there was no transparency in the selection process conducted by the Selection Committ ee, which requires interference in exercise of the jurisdiction under Article 22 6 of the Constitution of India. The learned counsel in support of his contention has placed reli [8] ance on the decision of the Apex Court in Anil Kumar Gupta & Ors. -Vs- State of Uttar Pradesh & Ors. reported in (1995) 5 SCC 173; in Rajesh Kumar Daria & Ors. -Vs- Rajasthan Public Service Commission & Ors. reported in (2007) 8 SCC 785; in Hemani Malhotra -Vs- High Court of Delhi reported in (2008) 7 SCC 11 and Divisi on Bench judgments of this Court in Matiur Rahman Bhuyan & Anr. -Vs- State of As sam & Anr. reported in 2002 (1) GLT 316 and in Ratul Kumar Das & Ors. -Vs- Stat of Assam & Ors. reported in 2009 (4) GLT 648. [9] The learned counsel appearing for the petitioners in the writ pe titions, who are amongst 66 (sixty-six) candidates whose names were subsequently deleted from the list of successful candidates in the written test because of t he alleged discrepancy in the total marks recorded in the (cid:28)total marks column (cid:29) o f the answer scripts and in the mark sheets submitted by the examiner, has submi tted that those candidates cannot be held responsible and make liable for such d iscrepancies, if any, the same having been done by the examiners and the candida tes being not at all involved in awarding the marks or in wrong calculation. Ac cording to the learned counsel, before deleting the names of those 66 candidates from such list of successful candidates in the written test, the Selection Comm ittee did not verify the actual marks awarded to those persons and simply becaus e there was discrepancy in recording the total marks in the (cid:28)total marks column (cid:29) and in the mark-sheets submitted by the examiner, the names of those persons we re excluded from the said list, which cannot be done. The learned counsel, ther efore, submits that the respondent authorities may be directed to verify the tot al marks actually secured by those candidates, as has been awarded by the examin er and thereafter, if they secured the cut off marks fixed by the Committee, the y may directed to be called for the viva-voce test, except the candidates who ha ve already appeared in the viva-voce test. [10] The learned counsel for the petitioners in those writ petitions, who have challenged the action on the part of the respondent authorities in not calling them for viva-voce test despite securing the cut off marks fixed for th at purpose, has submitted that they having secured the cut off marks in the writ ten test their names ought to have find place in the list of successful candidat es in such written test. According to the learned counsel, those petitioners hav ing secured the requisite marks, the respondent authorities cannot refuse to cal l them for viva-voce test, as has been done in the instant cases. The learned c ounsel, therefore, submits that necessary direction may be issued to the respond ent authorities to conduct the viva-voce test in respect of those candidates and thereafter, to declare the result of the selection and to make appointments acc ordingly. [11] The learned counsel appearing for the petitioners in WP(C) Nos.2 806/2009; 447/2010 and 4263/2010 have submitted that since the authority has ini tiated the selection process for recruitment to 145 numbers of vacant posts of S ub-Inspector, they are duty bound to complete the process, as initiated, in view of the directions contained in the order dated 7th August, 2008 passed in WP(C) No.1672/2008, whereby and whereunder the authority was directed to complete the selection process within 9 nine months from the date of issuance of the last ad vertisement. The learned counsel, therefore, submits that the said process of se lection may directed to be completed forthwith by publishing the list of candida tes selected for recruitment and by making the consequential appointments. [12] The learned senior counsel appearing for the official respondent s, placing reliance on the averments made in the affidavits-in-opposition filed by the Director, has submitted that the process for selection of candidates to f ill up 145 vacancies of Sub-Inspectors was initiated inconformity with the requi rement of the 1970 Rules, wherein it has clearly been indicated that the reserva tion policy relating to the reservation of vacancies for all the reserved catego ries including the women would be followed. The learned counsel further submits that in view of appearance of large number of candidates in the written test ag ainst 145 vacancies, the Selection Committee had to fix the cut off marks so tha t reasonable numbers of candidates can effectively be interviewed. Relating to the allegation of changing the rules of games by cha [13] nging the marks initially allotted for viva-voce test, it has been submitted by the learned counsel that the Selection Committee in the proceeding dated 3rd Feb ruary, 2009, keeping in view the various pronouncements of the Apex Court and wi th a view to keep the marks allotted for the viva-voce test in the range of 25% of the total marks fixed for written test, had decided to change the marks allot ted for viva-voce test from 50 to 25, as notified in the last advertisement dat ed 20th August, 2008, without, however, changing the marks allotted for the writ ten test, i.e. 150. The learned counsel submits that the unsuccessful candidate s in the written test cannot have any grievance relating to the change of the ma rks allotted for the viva-voce test, the same having not affected such candidate s at all, who were not successful in the written test. The learned counsel furt her submits that all the candidates, who are successful in the written test, wou ld be judged on the basis of 25 marks allotted for viva-voce test. [14] It has also been submitted that the 30% quota fixed for women in terms of the provisions of the 2005 Act was not worked out taking the same as v ertical reservation but as horizontal reservation. However, in terms of the pro visions of 2005 Act, after working out the total number of posts to be kept rese rved for women, those were distributed amongst different reserved categories, li ke SC/ST(P)/ST(H)/OBC/MOBC apart from General category. The learned counsel als o submits that different cut off marks had to be fixed for the male and the fema le candidates, as reflected in the proceeding of the Selection Committee dated 2 4th June, 2009, with a view to fill up the posts reserved for women candidates a gainst 30% quota fixed under the provisions of 2005 Act and, therefore, there is no gender discrimination, as contended by the petitioners. It has also been su bmitted that in the selection process, the provisions of Persons with Disabiliti es (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, relating to the reservation of vacancies for the persons with disabilities, hav e also been scrupulously followed. [15] The learned senior counsel further submits that the answer scrip ts were properly scrutinized by the examiners appointed for that purpose and on the basis of the marks allotted the booklets were prepared by the Chairman as au thorized by the Selection Committee, which was accepted by other members of the Committee. The learned counsel also submits that since there were proper scrut iny of the answer scripts and there is no allegation of bias or malafide against any examiner or the members of the Selection Committee including the Chairman, such process cannot be interfered with on the basis of wild allegation of not pr operly scrutinizing the answer scripts, by contending that had the answer script s been properly scrutinized, the petitioners, who did well in the written test, would have been selected. The learned counsel submits that such a roving enquir y cannot be made by a writ Court to find out the lacuna in the selection process , there being no factual foundation laid by the petitioners in the writ petition s. [16] It has also been submitted that the discrepancies, as noticed by the Selection Committee in the proceeding dated 23rd July, 2009, cannot be the basis for arriving at a conclusion that proper verification of the answer script s was not done by the examiner, more so, when no factual foundation has been lai d by the writ petitioners, in that regard, in the writ petitions. The Selection Committee has re-scrutinized the answer scripts of all the persons, who were fou nd to have secured the cut off marks in the written test and having found certai n discrepancies in respect of 66 candidates, as noticed in the said proceeding, their names were accordingly deleted from the list of successful candidates in t he written test. [17] The learned senior counsel appearing for the State respondents, however, has fairly submitted that it appears from the record that certain candi dates, who secured the cut off marks, were not called for the interview/viva-voc e test by mistake and hence those candidates would now be called for such test. It has also fairly been submitted that the Selection Committee in the proceedin g dated 23rd July, 2009 decided to exclude 66 candidates from the list of succes sful candidates without verify the actual marks secured by them, as awarded by t he examiner, as they were excluded because of the discrepancy relating to the to tal marks recorded in the (cid:28)total marks column (cid:29) and in the mark-sheets submitted by the examiners and as such, the Selection Committee shall undertake the proces s of ascertaining the actual marks secured by those candidates, as awarded by th e examiner and in such process if it is found that they have secured the cut off marks, they would be called for interview/viva-voce test. [18] The learned counsel in support of his contention has placed reli ance on the decision of the Apex Court in Ashok Kumar Yadav & Ors. -Vs- State of Haryana & Ors. reported in AIR 1987 SC 454 and in Union of India & Ors. -Vs- B ikash Kuanar reported in (2006) 8 SCC 193. The learned counsel appearing for the private respondents as wel [19] l as the newly impleaded respondents supporting the arguments advanced by the le arned counsel appearing for the official respondents have submitted that the sel ection process having been initiated and result of the written test having been declared, in compliance with the provisions of 1970 Rules and taking into accoun t the reservation policy of the Government of Assam and there being no illegalit y in such selection process, the same may not be interfered with by this Court, except where the learned counsel appearing for the official respondents have con ceded. Referring to the decision of the Apex Court in Ashok Kumar Yadav (supra) , it has been submitted by the learned counsel for the private respondents/newly impleaded respondents that in the said case, the Apex Court while recognized th e recruiting authority’s power to fix the eligibility criteria of minimum marks to be secured in the written test, with a view to limit the number of candidates for the viva-voce test, keeping in view the number of posts to be filled up, ha s held that there is no obligation on the part of the recruiting authorities to call all the persons securing the minimum eligibility requirement. The learned c ounsel further submits that in Hemani Malhotra (supra), the Apex Court has inter fered with the recruitment process because there was no prescription of minimum marks to be secured in viva-voce test, as was prescribed for the written test an d the minimum marks to be secured in the viva-voce test was prescribed after the written test was over. The said decision in Hemani Malhotra (supra), therefore, according to the learned counsel, is not applicable in the cases in hand. [20] I have considered the submissions of the learned counsel for the appearing parties and also perused the pleadings of the parties as well as the materials available on record, as produced by the learned counsel appearing for the State respondents. [21] The process for selection of candidates for appointment by direc t recruitment to fill up 145 posts of Sub-Inspector was initiated under the prov isions of 1970 Rules. Rule 11 of the said rules provides for recruitment to the said post from 2 (two) sources, namely 75% of the vacancies by direct recruitme nt through competitive examination, which is to be conducted by the Committee co nstituted under Rule 17(1) and 25% by promotion from amongst the ministerial cad res. Rule 17 provides for constitution of the Selection Committee for recruitmen t by competitive examination, with the Director of Food and Civil Supplies as Ch airman, the Joint Director of Food and Civil Supplies as Member and the Deputy S ecretary/under Secretary to the Government of Assam, Food and Civil Supplies Dep artment as Member Secretary. The competitive examination is required to be cond ucted by the Committee in accordance with the rules and syllabus, as the appoint ing authority may decide from time to time in consultation with the Committee. The Committee is required to prepare a list of candidates on merit, who have qua lified in the written examination. The Committee would, thereafter, hold the in terview of the successful candidates in the written test and the final merit lis t then to be prepared and published, taking into account the marks obtained by t he candidates in the written as well as in the interview/viva-voce test. The li st so prepared is to be forwarded to the appointing authority for its approval a nd publication. The said list, from the date of its approval, shall remain in f orce for 1 (one) year only. [22] The Selection Committee was accordingly constituted, as required under the 1970 Rules and the written test, as notified, was conducted on 28th D ecember, 2008 in 255 Centres in all over Assam, wherein, out of the total 1,04,7 70 numbers of applicants, 41,959 appeared. [23] The Selection Committee, thereafter, in its meeting dated 3rd Fe bruary, 2009 deliberated upon the selection process initiated and took a decisio n to reduce the marks initially allotted for viva-voce test from 50 to 25 and ac cordingly, it was decided to intimate all concerned by making publication in the print media. The Chairman of the Committee, in the said meeting, also apprised the Members of the Selection Committee about the process of examination of the answer scripts of the candidates appeared in the written test. Being satisfied with the process undertaken, the Committee requested the Chairman to compile the marks secured by each of the candidate. In the next meeting of the Committee h eld on 26th May 2009, the matter relating to the process of evaluation of the an swer scripts were again discussed and the Committee accepted the compilation of the marks secured by different candidates, done by the Chairman, as was authoriz ed in its proceeding dated 3rd February 2009. The number of posts required to be reserved for ST(H)/ST(P)/SC/OBC/MOBC candidates was also worked out, apart from the posts reserved for the persons with disabilities under the disability law. Keeping in view the fact that a large number of candidates have appeared in the written test conducted for recruitment against 145 vacancies, a decision was ta ken to restrict the number of candidates to be called for viva-voce test to 3% o f the total number of the candidates appeared in the written test, which is in t he ratio of 1:8.67. The total number of candidates to be called for viva-voce t est, therefore, was fixed at 1260. The Committee in the said proceeding distrib uted 1260 numbers of candidates to be called for viva-voce test in different cat egories, which is quoted below:- (cid:28)No. of Posts ST(H) 5% Candidates to be called 5 post for male 2 post for female = 44 Nos. = 17 Nos. -------------------------------------------------------------------------------- --------------------- Total: 7 post - A = Total: 61 Nos. A1 ST(P) 10% 10 posts for male 5 posts for female = = 87 Nos. 44 Nos. -------------------------------------------------------------------------------- --------------------- Total: 15 post - B =Total: 131 Nos. B1 SC 7% 7 posts for male 3 posts for female = = 61 Nos. 26 Nos. -------------------------------------------------------------------------------- --------------------- Total: 10 post - C = Total: 87 Nos. C1 OBC/MOBC 27% 27 posts for male 12 posts for female = = 234 Nos. 104 Nos. -------------------------------------------------------------------------------- --------------------- Total: 39 posts - D = Total: 338 Nos. D1 General 52 posts for male 22 posts for female = = 451 Nos. 191 Nos. -------------------------------------------------------------------------------- --------------------- Total: 74 posts - E = Total: 462 Nos. E1 All total posts A + B + C + D + E = -145 posts 1 + B1 + C1 + D1 + E1) 1259 say 1260. (cid:29) Total candidates to be called (A [24] The Committee in the next proceeding dated 24th June, 2009 fixed the cut off marks for different categories of candidates including the women ca ndidates, in terms of its decision to call 1260 numbers of candidates for viva-v oce test. The cut off marks fixed by the Committee in the said proceeding is re produced below:- (cid:28)Lowest cut off marks Category (I) arks out of 150 marks (II)

97.5 marks out of 150 marks 85.5 84 marks out of 150 marks 76.5 m Male Female (Women) Male Female (Women) ST(P) -Do- ST(H) -Do- marks out of 150 marks (III) SC of 150 marks Male Female (Women) 99 marks out of 150 marks 88.5 marks out Male Female (Women) 99 marks out of 150 marks 87 mar General Male Female (Women) 105 marks out of 150 marks 93 marks out OBC/MOBC (IV) ks out of 150 marks (V) of 150 marks. (cid:29) [25] In the deliberation dated 23rd July 2009, the Committee has noti ced that out of 1401 number of candidates, who secured the cut off marks, there are certain discrepancies in respect of 66 candidates, as the marks entered in t he (cid:28)total marks column (cid:29) do not tally with the mark-sheets submitted by the exami ner, use of wooden pencil in answering the questions and also award of marks for the unanswered questions. The Committee, therefore, decided to exclude those 6 6 candidates from the list and to publish the result of the written test. Accor dingly, the result of the written test was notified on 27th July, 2009, which wa s published in a local daily, namely the Assam Tribune, on 28th July, 2009. The viva-voce test was, thereafter, conducted on 10th August, 2009 on the basis of 25 marks allotted for that purpose. No appointment, however, could be made beca use of the interim order passed by this Court in the present writ proceedings, t hough the final result, according to the learned senior counsel appearing for th e State respondents, has been prepared, which was in fact once published by the then Director without the approval of the Government and hence was immediately w ithdrawn, consequence of which is the non publication of the final list of candi dates selected for recruitment. [26] The Writ Court, while scrutinizing the legality or validity of a selection process undertaken by the authority cannot make a roving enquiry on t he factual aspect. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would be slow to interfere with the selection process on the basis of microscopic findings, while testing the fairness of the selection process, wherein thousands of candidates appeared. A mere expression of doubts relating to the scrutiny of the answer scripts and not scrutinizing th e same objectively and properly, without further factual backgrounds or supporti ng facts cannot by itself render the whole selection process illegal. The Court s, in the matter pertaining to the conduct of examination for recruitment, are n ot to act as the appellate bodies and also cannot assume the role of a super exa miner. The Court, however, in a given case can interfere with such process, pro vided there is any strong compulsion for doing so. It is also a settled positio n of law that unless specific instances are brought to the notice of the Court t o demonstrate that the selection process has been vitiated by malafide or by suc h action prompted by extraneous consideration, the interference of the Court, in the matter of selection process undertaken by the authority, is not permissible . [27] In the cases in hand, there is no allegation of malafide or bias against any member of the Selection Committee or against the examiners who exam ined the answer scripts of more than 41000 candidates, who appeared in the writt en test. Except making vague statement that the examiners appointed for that pu rpose did not evaluate the answer scripts properly, no foundational fact could b e laid before the Court. It is also not the case that the Chairman, who was auth orized by the Committee to compile the marks secured by different candidates, di d not compile such marks correctly or there is any discrepancy in such compilati on by the Chairman. As discussed above, the Committee vide proceeding dated 3rd February, 2009 authorized the Chairman to compile the same and such compilation was approved by the Committee in its proceeding dated 26th May, 2009. It also a ppears from the aforesaid proceeding dated 23rd July, 2009 that the Committee, h aving noticed certain discrepancies, had decided to exclude 66 candidates from t he list of successful candidates in the written test. [28] The contention of the learned counsel for the petitioners in the concerned writ petitions relating to the anomalies in scrutinizing the answer s cripts, as noticed above, is based on the proceeding of the Selection Committee’ s meeting dated 23rd July, 2009, wherein the Selection Committee noticed certain discrepancies in respect of 66 answer scripts, out of total 1401 candidates, wh o secured 85 marks or above. Such plea though taken only in the rejoinder affid avit filed by the petitioners in WP(C) No.3207/2009, the Court cannot refuse to consider the same on the ground that it was not taken in the writ petition filed . Merely because certain discrepancies were detected in respect of 66 candidate s, it cannot be concluded, in view of the aforesaid discussion, that the answer scripts of more than 41000 candidates were not properly scrutinized by the exami ners. That being the position, the contention of the petitioners in that respect cannot be accepted. [29] When a Selection Committee recommends the names of candidates, t he same cannot be presume to have been done in a mechanical manner, in the absen ce of any illegality or favouritism or bias. A presumption is always required t o be drawn that the official acts have been regularly performed, unless of cours e the party making the allegation of bias or favouritism rebuts the same by prod ucing sufficient proof therefor. In the case in hand, as discussed above, ther e is no such allegation of bias or favouritism against the examiners, who examin ed the answer scripts of the candidates or against the Chairman of the Selection Committee of not faithfully compiling the marks awarded by the examiner. Refer ence may be made in that regard to the Apex Court’s judgment in Bikash Kuanar ca se. [30] Another ground of challenge of the selection process is that bef ore initiation of such process and in any case before conduct of the test, the p rocedure to be followed has to be notified and in the instant cases, according t o the petitioners, as the Selection Committee subsequent to conduct of the writt en test decided to limit the number of candidates to be called for interview/viv a-voce test, without notifying the same prior to holding of the test, the same h as vitiated the selection process, as by such decision, the rules of the game ha s been changed. The same contention has also been made in respect of re-fixatio n of the marks allotted for viva-voce test from 50 to 25. [31] As noticed above, more than 41000 candidates appeared in the wri tten test conducted for selection and appointment against 145 posts of Sub-Inspe ctor, for which, the Commission for the justification recorded in the proceeding dated 26th May, 2009, decided to limit the number of candidates to be called fo r viva-voce test to 3% of the number of candidates appeared in the written test. Such course of action taken by the respondent authorities, in limiting the num ber of candidates to be called for viva-voce test, cannot held to be wholly unre asonable and unjustified, requiring interference with the selection process init iated. The number of candidates appeared in the written test being very high, i n comparison to the number of posts required to be filled up, it cannot be said that the respondent authority was not justified in limiting the number of candid ates to be called for viva-voce test, otherwise it would be difficult to carry o ut the viva-voce test properly for measuring the personality of a candidate. Th e Apex Court in Ashok Kumar Yadav (supra) has approved such action of the Haryan a Public Service Commission in limiting the number of candidates to be called fo r viva-voce test. [32] The decision of the Apex Court in Hemani Malhotra (supra) is not applicable in the facts of this case, as in that case, the Apex Court has inter fered with the selection process initiated for recruitment to Delhi Higher Judic ial Service, on the ground that though there was no prescription of minimum mark s to be secured by a candidate in viva-voce test, such minimum mark was subseque ntly prescribed after the written test was over, which the Apex Court has held i s not permissible. In the said case, the question whether the authority can lim it the number of candidates to appear in the written test was not in issue. [33] In Matiur Rahman Bhuyan (supra) the challenge was made to the de cision of the Assam Public Service Commission cancelling the result of the writt en examination and viva-voce on the ground that a subsequent decision was taken to select the candidates only on the basis of the interview and consequently all the candidates, irrespective of whether they secured the minimum qualifying mar ks in the written test, were called for interview again. A Division Bench of th is Court in the backdrop of such factual foundation has interfered with the sele ction process on the ground that the authority has deviated from the criteria ea rlier laid down for selecting the candidate on the basis of the written test as well as the viva-voce, which, it cannot do, as it amounts to changing the criter ia after commencement of the selection process. There is no dispute to the said proposition of law. [34] In the case in hand, only the marks allotted for the viva-voce t est was changed from 50 to 25. No minimum cut off mark for viva-voce test has b een fixed at any time. The petitioners also being not successful in the written test cannot have any grievance relating to the change of the total marks allott ed for the viva-voce test. Hence, such contention of the petitioners in those w rit petitions cannot be accepted. The decision of the authority to call the ca ndidates for viva-voce test in the ratio of 1:8.67, on the ground its being on t he higher side, also cannot itself, in the absence of any rule in that regard, b e a ground to interfere with the selection process. This leads to the consideration of the next plea raised by the p [35]. etitioners, i.e. application of reservation for women, as provided in 2005 Act, as (cid:28)vertical reservation (cid:29) instead of (cid:28)horizontal reservation (cid:29). The law on that issue has been settled by the Apex Court. In Rajesh Kumar Daria (supra), the Ap ex Court discussing the difference between the (cid:28)vertical reservation (cid:29) and (cid:28)horiz ontal reservation (cid:29), has opined that the social reservations in favour of ST/SC a nd OBC under Article 16(4) of the constitution are vertical reservation and the special reservations in favour of physically handicapped, women etc. under Artic les 15(3) or 16(1) of the Constitution are horizontal reservations. In case of vertical reservation made under Article 16(4) of the Constitution of India, the candidates belonging to the reserved category may compete for non reserved post and if they are appointed to the non reserved post on own merit, their numbers c annot be counted against the quota reserved in the respective reserved categorie s. The said principal, however, is not applicable to the (cid:28)horizontal reservatio n (cid:29), i.e. special reservation made in favour of physically handicapped, women etc . Where special reservation for women is provided within the social reservation , the proper procedure is first to fill up the quota fixed for women within the social reservation in order of merit and then find out the number of candidates among them, who belong to the special reservation group of such reserved categor y women. If the number of women in such list is equal to or more than the numbe r of special reservation quota, then there is no need for further selection towa rds the special reservation quota. Only if there is any short fall, the requisi te number of reserved category women shall have to be taken by deleting the corr esponding number of candidates from the bottom of the list relating to such rese rved category. Thus the women selected on merit within the vertical reservation quota will be counted for horizontal reservation for women. The Apex Court by way of illustration has given the following example in paragraph 9:- (cid:28)If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of t he successful eligible candidates. If such list of 19 candidates contains four S C women candidates, then there is no need to disturb the list by including any f urther SC women candidate. On the other hand, if the list of 19 SC candidates co ntains only two woman candidates, then the next two SC woman candidates in accor dance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to en sure that the final 19 selected SC candidates contain four women SC candidates. (But if the list of 19 SC candidates contains more than four women candidates, s elected on own merit, all of them will continue in the list and there is no ques tion of deleting the excess women candidates on the ground that ’SC women’ have been selected in excess of the prescribed internal quota of four. (cid:29) [36] The Apex Court in Rajesh Kumar Daria (supra) has also quoted wit h approval the observation in paragraph 18 of Anil Kumar Gupta’s case (supra), w hich is reproduced below:- (cid:28)Now, coming to the correctness of the procedure prescribed by the revised notif ication for filling up the seats, it was wrong to direct the fifteen percent s pecial reservation seats to be filled up first and then take up the OC (merit) quota (followed by filling of OBC, SC and ST quotas). The proper and correct cou rse is to first fill up the OC quota (50%) on the basis of merit; then fill up e ach of the social reservation quotas, i.e., SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been s elected on the above basis. If the quota fixed for horizontal reservations is al ready satisfied - in case it is an overall horizontal reservation - no further q uestion arises. But if it is not so satisfied, the requisite number of special r eservation candidates shall have to be taken and adjusted/accommodated against t heir respective social reservation categories by deleting the corresponding numb er of candidates therefrom. (If, however, it is a case of compartmentalised hori zontal reservation, then the process of verification and adjustment/accommodatio n as stated above should be applied separately to each of the vertical reservati ons. In such a case, the reservation of fifteen percent in favour of special cat egories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contr ibuted partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the OC quota. (cid:29) [37] A Division Bench of this Court in Ratul Kumar Das (supra), while considering the policy of reservation under 2005 Act, based on the aforesaid ju dgments of the Apex Court has also held that in the event the select list prepar ed on the basis of the merit for each category also includes the requisite numbe r of women candidates, no further exercise is required to be performed. However , if there is a short fall of requisite women candidates in order of merit will replace the last of male candidates, which is the essence of application of law relating to reservation under the 2005 Act. [38] The 2005 Act provides for reservation of vacancies in services a nd posts for the women in the State of Assam. It provides for the reservation f or women in vacancies to be filled up by direct recruitment. Section 4 requires that at the commencement of the Act, 30% of the vacancies in respect of appoint ments to the services and posts in the establishment, which are to be filled up by direct recruitment, shall be reserved for the women candidates. Section 2(b) defines ’establishment’, which also includes any office of the State Government . The first proviso to Section 4 stipulates that the said reservation shall be inclusive of the reservation provided statutorily or otherwise to the SC/ST(P)/S T(H)/OBC/ MOBC or persons with disability within the respective reserved categor y. The second proviso stipulates that 30% reservation of the vacancies in respe ct of the women for the remaining unreserved category shall be available to the women for the unreserved category only. [39] Under the said Act, therefore, 30% of the posts are reserved for women within each category, i.e. SC/ST(P)/ST(H)/OBC/ MOBC and persons with disa bilities. Applying the law laid down by the Apex Court, as discussed above, for proper application of the reservation policy for women within the vertical (soc ial) reservation, it is required first to fill up the quota of such women candid ate within each category of vertical (social) reservation in order of merit and in the event there is any short fall, the requisite number of the women in such category shall have to be taken by deleting the corresponding number of male can didates from the bottom of the list relating to the said reserved category. [40] In the cases in hand, the Committee in its proceeding dated 26t h May, 2009 fixed the quota for women candidates against each of the reserved ca tegory as well as the general category and worked out the number of posts to be kept reserved and accordingly, vide proceeding dated 24th June, 2009 fixed the c ut off marks, for the female candidates under each category. By fixing such quo ta for women candidate, the Committee, therefore, decides to fill up those posts only by women candidate, irrespective of the number of women candidate to be ap pointed on merit. The Committee, therefore, has applied such special reservatio n for women as vertical (social) reservation, which is not permissible in law. The same is also evident from the affidavit-in-opposition filed by the Director on 9th November, 2009, more particularly in second sub-paragraph of paragraph 6 thereof, which reads as follows:- (cid:28)It is further clarified that the very intention of the selection committee to b ring down the marks of women candidates lower was only to accommodate number of women candidates decided to be called for viva-voce as mentioned in paragraphs 5 (i), (ii), (iii), (iv) and (v) above so that 30% vertical (social) reservation can be maintained as provided under Article 16(4) of the Constitution of India a nd as mandated in the decisions of the Hon’ble Supreme Court referred to above. (cid:29) [41] It also appears that different cut off marks are fixed for male and female candidates in each category. When the Selection Committee decided to fix the cut off marks for the purpose of limiting the number of candidates sele cted for appearing in the viva-voce test, the same has to be applied uniformly b oth to the male and the female candidates, otherwise it would amount to gender d iscrimination and consequently violative of the fundamental rights guaranteed un der Article 15 of the Constitution of India. Such a course of action, as adopte d by the Selection Committee, therefore, cannot sustain the scrutiny of law. [42]. The learned senior counsel appearing for the State respondents, as noticed above, has conceded that some of the petitioners in WP(C) Nos.3283/20 09, 3327/2009; 3500/2009; 3526/2009; 3824/2009; 5245/2009; 95/2010 and 4259/2010 , were excluded from the list of the successful candidates in the written test, by mistake though secured the cut off mark and some being amongst those 66 cand idates in respect of whom certain anomalies were detected, without verifying as to whether they actually secured the minimum cut off marks fixed by the Selectio n Committee, as per the marks awarded by the examiner. It has also been submitt ed by the learned senior counsel that the Selection Committee will verify whethe r any candidate who secured the cut off mark was left out, apart from verificati on of the marks actually secured by those 66 (sixty-six) candidates, on the basi s of the marks awarded by the examiners and if they or any of them found to have secured the cut off marks, they would be called for viva-voce test. The candida tes, who have secured the cut off marks, cannot refused to be called for viva-vo ce test. The selection committee was also not justified in deleting the names of all those 66 candidates from the list of successful candidates in the written t est, without first verifying as to whether they have secured the cut off marks o n the basis of the marks actually awarded by the examiners. [43]. As noticed above, pursuant to the result of the written test not ified on 27th July, 2009, the viva-voce test, in respect of the candidates whose names appeared in the said list, has already been conducted, however, without f ormal publication of the final result. It has been held in this judgment that t he law relating to the reservation for women has been wrongly applied and in cas e of 66 candidates, it has not been verified as to whether they have actually se cured the cut off marks and in respect of some petitioners, as noticed above, th ough they secured the cut off marks, they were not called for interview. It has also been held that the action on the part of the Selection Committee in fixing different cut off marks for male and female candidates is illegal. That being the position, the respondent authorities, in terms of the observations made here inbefore in this judgment, are directed to:- correctly apply the 30% reservation for women, inconformity wi (i) th the provisions of the 2005 Act and in terms of the observations made herein a bove and to make the selection; (ii) didates; re-fix the uniform cut off marks, both for male and female can (iii) verify the marks secured by those 66 (sixty-six) candidates, on the basi s of the marks awarded by the examiner, without, however, undertaking any exerci se of re-evaluation of answer scripts; (iv) verify as to whether all the candidates appeared in the written test, wh o have secured the cut off marks, were called for viva-voce test, and thereafter ; (v) call those candidates, who have secured the re-fixed cut off m arks, by following the ratio of 1:8.67, who have not already been interviewed; a (vi) prepare and publish the select list on the basis of merit, as contemplat ed under 1970 Rules, taking into account both social and special reservation and to appoint the selected candidates accordingly, against the posts advertised. In the event, because of the re-fixation of the cut off marks in the written tes t, it is found that certain candidates, who would not have been called for the v iva-voce test, their candidature would not be considered for final selection, ev en though they have already been interviewed. [44] The entire exercise, including the publication of the final sele ct list, is directed to be completed within a period of 3 (three) months from to day. [45] The WP(C) Nos.5520/2008; 3207/2009; 3283/2009; 3327/2009; 3500/2 009; 3526/2009; 3704/2009; 3824/2009; 3899/2009; 4150/2009; 4319/2009; 5197/2009 ; 5245/2009; 5820/2009; 95/2010; 1268/2010 and 4259/2010 are accordingly allowed to the extent indicated above. WP(C) Nos.2806/2009; 447/2010 and 4263/2010 are disposed of. No costs.