High Court · 2009

Thereafter, on 15.6.2009 the final select list of the successful candidates was notified and the same was communicated to the Government. The Go vernment in its turn issued appointment orders to the selected candidates which obliged the said candidates to join within the permissible joining time. At this stage, on 8.7.2009, WP(C) No. 2755/2009 was filed contending that out of the 11 6 posts advertised excluding 11 backlog vacancies, at least 53 posts should have been earmarked for the general category candidates in view of the fact that the reservation cannot exceed 50% of the advertised posts. Against the 53 Nos. of p osts that were required to be earmarked for the general category candidates, onl y 51 posts were allotted to such candidates. The pleadings in the writ petition also indicated that the 30% quota for women under the Women Reservation Act was worked out as a vertical reservation resulting in a situation where 65% of the p osts advertised were treated as reserved posts. In addition to the above issues grievances were also raised with regard to allotment of additional marks to two candidates bearing Roll Nos. 32328 (Ms. Mallika Mazumdar) and 33035 (Ms. Sabita Das). One selected candidate Dipanjali Das, it was alleged, had indirectly canva ssed her candidature by means of a letter written by her community urging for he r selection. According to the petitioners, the aforesaid letter amounted to indi rect canvassing by the candidate which disqualified her. All the aforesaid three candidates were impleaded as respondent Nos. 7,8 and 9 in the writ petition. In the writ petition filed, one Dr. Sasadhar Nath, a sitting Member of the Commiss ion was impleaded as the respondent No. 10. A U/O Note dated 12.6.2009 circulate d by the aforesaid respondent No. 10 was also enclosed to the writ petition as A nnexure-E. In the said U/O Note, the respondent No. 10 had highlighted that call letters for the interview were issued to a large number of ineligible candidate s besides serious anomalies in the evaluation of the answer scripts. Certain oth er issues with regard to the conduct of the competitive examination and the inhe rent deficiencies in the existing procedure which contained the potential of aff ecting the fairness of the selection process were also indicated.

8. This Court while entertaining the writ petition i.e. WP(C) No. 2 755/2009 had issued certain interim directions the result of which is that 116 c andidates though selected and appointed, have not been able to join in the posts in which they have been appointed. Thereafter, the matter, in view of the issue s involved, has been heard out of turn and the controversy arising in the writ p etition is sought to be resolved by the present judgment and order.

9. As already highlighted on the basis the pleadings contained in t he writ petition, two issues, in the main, arise. The first is with regard to th e correctness/ fairness in the evaluation of the answer scripts of the candidate s in the main written examination. Connected with the said question is the issue with regard to award of higher marks to some of the candidates including the re spondent Nos. 7 and 8 in the writ petition. The U/O Note dated 12.6.2009 of the respondent No. 10 and the stand taken by the said respondent in this regard woul d be covered by the aforesaid first issue identified by the Court. The second issue arising in the writ petition is with regard to the preparation of the list of candidates found eligible for the interview and t he final list of successful candidates in the light of the understanding of the Commission of the law with regard to vertical and horizontal reservation. The ab ove question would arise from the stand taken by the petitioners that in giving effect to the 30% reservation provided by the Women Reservation Act, the actual percentage of reservation provided by the Commission in the instant selection is 65%. The question with regard to the precise number of vacancies that should ha ve been earmarked for the open category i.e. 51 or 53 is a connected issue.

10. Having identified the issues that arise for consideration in the writ petition, the Court may now proceed to understand what has been projected in the affidavit of the respondent No. 10, Dr. Sasadhar Nath as well as in the t wo affidavits dated 10.8.2009 and 13.8.2009 filed by the Commission.

11. The respondent No. 10, Dr. Sasadhar Nath who is a sitting Member of the Commission has filed an affidavit dated 31.7.2009 and an additional affi davit dated 5.8.2009. The affidavit dated 31.7.2009 filed by the Respondent No.1 0 indicates that an adverse opinion with regard to the conduct of the competitiv e examination by the Public Service Commission had been highlighted in the print as well as electronic media which has (cid:28) a bad impact in the society (cid:29). Dr. Nath had also indicated in the affidavit that there has been a progressive decline i n the number of participants in the civil services examination and a feeling has been generated in the public mind that selection by the Commission has been mad e on extraneous basis and on corrupt grounds. The respondent No. 10 has pointed out that under the norms in force, against the 116 posts, 12 times the number of candidates i.e. 1392 should have been declared eligible for the main examinatio n whereas 5569 candidates have been declared so eligible. Similarly, the respond ent No. 10 has pointed out that though the UPSC follows the ratio of 1: 2 while calling candidates for interview , the Assam Public Service Commission had calle d four times the number of candidates which should have been 464; yet, 507 candi dates have been so called. In para 9 of the affidavit Dr. Nath had stated that t he respondent No. 7, Ms. Mallika Mazumdar is a relative of the Controller of Exa minations and that that the verification of her answer scripts in the meeting of the Commission held on 11th and 12th June, 2009 had revealed addition of extra marks. Similar is the position, according to Dr. Nath, in the case of respondent No. 8, Ms. Sabita Das. In para 11 of the affidavit, the respondent No. 10 has p ointed out that in the meeting of the Commission held on 15.6.2009 the Controlle r of Examinations had placed before the Commission the answer scripts of several candidates in whose cases marks were deducted by the Head Examiner. According t o the respondent No. 10, such increase and decrease of marks had affected the fo rtune of many candidates. In the U.O. Note dated 12.6.2009, which has been enclo sed to the affidavit of the respondent No. 10, it has been stated that such cha nge of marks had been effected at the level of the Head Examiner who at best had examined only 10% of the answer scripts. That apart, in the affidavit filed, th e respondent No. 10 has pointed out other irregularities in the conduct of the s election including constitution of the interview Boards and the marks to be awar ded by the Members of such Boards, particularly the Advisor. The said facts are contained in another U/O Note dated 4.7.2009 submitted by the respondent No. 10 to the Secretary of the Commission which Note has also been enclosed to the affi davit filed by the said respondent.

12. In the additional affidavit dated 13.8.2009, the respondent No. 10 apart from making corrections of certain errors appearing in the affidavit da ted 31.7.2009, has further stated that the Controller of Examinations one Sri Ba lindra Hazarika as well as the Assistant Controller, one Sri T.C. Rajkhowa are b oth undergraduates whereas the similar posts in other Public Service Commissions like Tamil Nadu, Karnataka are being held by senior IAS officers. Along with th e additional affidavit the respondent No. 10 has enclosed a note dated 22.6.2009 addressed to the Secretary of the Commission by another Member informing the sa id authority of a news item in a local T.V. channel to the effect that one parti cular Head Examiner appointed to examine the answer scripts of Arts subjects was a Chemistry teacher.

13. The Commission in its affidavit dated 10.8.2009 had stated that social reservation in favour of SC, ST and OBC under Article 16(4) are vertical reservations while special reservation in favour of women/ physically changed pe rsons are horizontal reservations under Article 16(1). In case of vertical reser vation the candidates belonging to the reserved categories can compete for unres erved posts and if they are appointed against unreserved posts on the basis of t heir merit their numbers will not be counted against the quota reserved for the respective reserved categories. In other words, the reservation quota will remai n intact ad will be available to other reserved category candidates. According t o the Commission, the said principle applicable to vertical reservation will, ho wever, not apply to horizontal reservation. In the affidavit dated 10.8.2009 fil ed by the Commission, it has been stated that though 464 candidates ought to hav e been interviewed on the basis of the ratio of 1 : 4, in all 600 candidates wer e interviewed by the Commission against 116 posts advertised. In para 8 of the a ffidavit, the Commission had admitted that it had committed an error in the proc ess of identification of candidates to be called for the interview. It has been further stated in the said paragraph of the affidavit that following the law lai d down by the Apex Court in Anil Kr. Gupta (supra), the Public Service Commissio n has now identified 207 candidates who are qualified for the interview against 51 general category posts. Similarly, appropriate number of candidates qualified for interview against different reserved category posts have also been identifi ed. A compilation of the aforesaid list of candidates qualified to be called for the interview as per the law laid down in Anil Kumar Gupta (supra) has been enc losed as Annexure-IV to the affidavit of the Commission.

14. Though it has not been expressly stated, it is evident from the contents of para 9,10 and 11 of the affidavit of the Commission that the correct ly identified candidates who are eligible to be called for the interview had in fact been so called though their names were included in categories other than su ch categories against which they should have been initially included. Specifical ly, in para 9 it has been stated that four candidates whose names figure in the select list, namely, (i) Ms. Diptimoni Bora (Sl. No. 26 of the list of ACS (Juni or Grade); (ii) Ms. Sabita Das (Sl. No. 15 of the list of Inspector of Taxes); ( iii) Ms. Pinkumoni Gogoi (Sl. No. 16 of the list of Inspector of Taxes); and (iv ) Ms Elle Bora (Sr. No. 26 of the list of candidates for Assam Police Service) a re not eligible to be included in the final select list and, instead, four other candidates bearing Roll Nos. 14642 (891 marks), 10521 (OBC-M, 854 marks), 10539 ( OBC-M, 853 marks) and 11424 (General-women- 881 marks) are eligible for inclus ion in the select list of different categories of posts indicated in the affidav it filed. Furthermore, in para 9 of the affidavit the Commission has stated that the posts against which 10 candidates have been selected are liable to change a nd instead of the posts for which they have been found eligible they will now be eligible for certain other posts. A copy of such list of candidates has been an nexed to the counter affidavit of the Commission dated 10.8.2009 as Annexure-V.

15. In para 10 of the affidavit filed by the Commission, it has been stated that out of the 116 candidates whose names appear in the final select l ist dated 15.6.2009 already published, 113 candidates who have been selected are within the 464 candidates who were required to be called for the interview. Thr ee candidates bearing Roll Nos. 10366, 23330 and 10003 whose names appear at Sl. Nos. 525, 697 and 680 of the list prepared after the written examination are li able to be included in the select list being ST(H) candidates. In para 11 of the counter affidavit dated 10.8.2009 of the Commi 16. ssion the details of the number of candidates of each category i.e. General, SC, ST(P), ST(H), OBC etc. who should have been called for the interview on correct application of the law laid down by the Apex Court in Anil Kumar Gupta (supra) and the excess number of candidates so called have been indicated. Statements ha ve also been made to show that none of the excess candidates called for the inte rview had been selected in the final select list dated 15.6.2009. In case of cer tain reserved category candidates i.e. OBC, MOBC, it has been indicated that out of the candidates called from that category a certain number were eligible to b e called as general category candidates by virtue of their merit. If the aforesa id number of candidates are to be included in the general category a few more ca ndidates were required to be called for the interview from the particular reserv ed category. However, any call for interview of such candidates would be an empt y formality as by virtue of the marks secured by them in the written examination even if they are to be given full credit at the interview (200 marks) they woul d still not make it to the list of finally selected candidates.

17. In para 12 of the affidavit of the Commission, it has been state d that three candidates with Roll Nos. 39179 (General, Female- 922 marks), 36457 (OBC, Female- 853 marks) and 10718 (ST(P), Male- 819 marks) though may have bee n eligible for inclusion in the final select list were, however, not eligible fo r the particular post for which they have opted. Accordingly, their names are no t eligible to be included.

18. Pointing out the aforesaid facts in the affidavit filed, it has been stated that the Assam Public Service Commission may now be allowed by the C ourt to publish the corrected select list finalized on the basis of the paramete rs indicated in the affidavit the details of which have already been noted.

19. In so far as the stand taken by the respondent No. 10 is concern ed, according to the Commission, the respondent No. 10 was present in the meetin g of the Commission dated 15.6.2009 in which it was decided that the select list of candidates should be finally published. According to the Commission, no diss ent was raised by the respondent No. 10 who had signed the minutes of the said m eeting. That apart, relying on the law laid down by the Apex Court in Bihar Publ ic Service Commission & Anr. -vs- Dr. Shiv Jatan Thakur & Ors., reported in 1994 Supp (3) SCC 220 (Para 28), the Commission in the affidavit filed has contended that the respondent No. 10 cannot be allowed to question the validity of the se lection made by the Commission so long he continues to be a Member of the Commi ssion.

20. In the additional affidavit dated 13.8.2009, the Commission acti ng pursuant to an order of this Court has clarified that the panel of examiners, scrutinizers and head examiners appointed in respect of the Combined Competitiv e (Main) Examination had been approved by the Commission on 22.12.2006. As the m ain examination was held in 2008, additional names drawn from the Gauhati Univer sity, Dibrugarh University and other colleges had to be included in the said app roved list. In para 5 of the additional affidavit the details of the procedure f ollowed in evaluating the answer scripts upto the stage of tabulation of results has been mentioned. In para 6 of the additional affidavit, the details of the e xtra marks secured by respondent Nos. 7 and 8 have also been indicated. In para 7 of the additional affidavit, it has been stated that award of marks and re-eva luation thereof is permitted by the proviso to Rule 42 of the Assam Public Servi ce Commission (Procedure & Conduct of Business) Rules, 1986 and correction of ma rks per se without any other material to indicate any extraneous or oblique purp ose will not invalidate the corrections of marks as made.

21. A preliminary consideration of the writ petitions, particularly, the issue with regard to vertical and horizontal reservation having indicated t hat some of the selected candidates who, in the meantime, have been appointed co uld be affected by the on going proceeding in the writ petition, notice in two l eading newspapers of the State was directed to be issued by the Public Service C ommission informing all candidates who may be desirous of participating in the p resent proceeding to do so. This was done, particularly, in view of the interim order passed by this Court on 22.7.2009 not to allow any of the 116 candidates t o join in the posts in which they may have been offered appointment. Naturally, at the stage when the interim order was passed on 22.7.2009, the extent of infir mity, if any, of the selection held, on correct application of the principles of horizontal and vertical reservation was yet to be conclusively determined.

22. Pursuant to the public notice issued a large number of selected candidates i.e. 45 have joined in the present writ petition who have been implea ded as respondent Nos. 11 to 55. Such candidates are represented by Sri N Dutta, Sri AB Choudhury and Sri KK Mahanta, learned senior counsels; Sri BD Konwar, Sr i M Choudhury and Sri PD Nair, learned counsels. They have been heard. We have a lso heard Sri YS Mannan, learned counsel for the petitioners; Sri BM Choudhury, learned counsel for the respondent No. 10 and above all, Sri KN Choudhury, lear ned senior counsel appearing on behalf of the Commission.

23. Sri Mannan, learned counsel for the petitioners has submitted th at the two affidavits filed by the respondent No. 10 along with the UO Notes dat ed 12.6.2009 and 4.7.2009 clearly indicate that gross anomalies had taken place in the conduct of the written examination by the Commission for which reason the impugned selection as a whole should be set aside. Pointing out the two affidav its of the Commission, Sri Mannan has argued that it has been virtually admitted by the Commission that the final select list dated 15.6.2009 has been prepared without adhering to the principles of horizontal reservation introduced by the W omen Reservation Act. In fact, the said list has been prepared by treating the r eservation provided by the said Act to be a vertical reservation. Consequently, according to Sri Mannan, more that 50% of the advertised posts have been made av ailable to the reserved category candidates which is against the mandate of the law laid down by the Apex Court that reservation, in any case, cannot exceed 50% . Sri Mannan has also pointed out that notwithstanding the corrections sought to be made by the Commission, adherence to the rule of maximum permissible reserva tion require 53 posts to be earmarked for the open category whereas in the prese nt case only 51 of the total posts advertised have been so earmarked. Such an er ror is sought to be continued by the Commission, it is argued.

24. Sri N Dutta, learned senior counsel appearing on behalf of some of the selected candidates including one Ms. Pinkumoni Gogoi (who according to t he Commission is liable to be excluded from the correct select list), has submit ted that inclusion of the aforesaid candidate in the select list and the offer o f appointment given to her on that basis are facts that ought not to be ignored by the Court while formulating the eventual relief to be granted in the writ pet ition. The candidates are in no way responsible for what had happened. In this r egard, it has also been argued by Sri Dutta that the selection and appointment o f Ms. Pinkumoni Gogoi is not under challenge in the writ petition. There is no a llegation against the said candidate. Sri Dutta has also submitted that the corr ected exercise as indicate in the affidavit has not been performed by the Commis sion. In fact, Sri Dutta has drawn support from the stand taken by Sri Sasadhar Nath, respondent No. 10 that the Commission had not been involved at any stage i n undertaking the aforesaid exercise. Therefore, according to Sri Dutta, no leav e as sought for in the affidavit of the Commission can be granted by the Court. Sri Dutta has further pointed out that in view of the illegalities and irregular ities that had now surfaced with regard to the application of the principles of vertical and horizontal reservation, the next course of action is to be decided by the Commission in the light of availability of the power of review to effect corrections in the final select list already published.

25. Sri AB Choudhury, learned senior counsel appearing on behalf of some of the selected candidates including respondent Nos. 7 and 8 has raised ser ious objections with regard to the role and conduct of the respondent No. 10 in taking the particular stand in the case as already noticed. Sri Choudhury has ur ged that the writ petition is inordinately delayed, inasmuch as, the result of t he written test was declared in the month of December, 2008 whereas the writ pet ition has been filed in the month of August, 2009. No explanation for such delay has been offered. Sri BD Konwar and Sri N Choudhury, leaned counsels appearing on behalf of some other selected candidates have adopted the arguments advanced by Sri N Dutta and Sri AB Choudhury. So has Sri PD Nair, learned counsel for ano ther set of selected candidates who, however, has additionally pointed out that the select list does not contain any waitlisted candidate. In this regard, Sri N air has pointed out that if the corrected select list is to be published the sai d fact should be kept in mind as some candidates may not be willing to join in t he posts that they may be offered to them at this belated stage.

26. Sri KN Choudhury, learned senior counsel for the Commission has fairly submitted that the perception of the Commission with regard to the princi ples of law governing horizontal and vertical reservation at the time of finaliz ing the list of candidates eligible for interview as well as at the time of fina lization of the select list was erroneous. Subsequently, the Commission has unde rstood the correct purport of the law laid down by the Apex Court in Indra Sawhn ey, Anil Kumar Gupta and Rajesh Kumar Daria (supra). Accordingly, an exercise of correction was undertaken which had revealed that all candidates who were requi red to be called for the interview were actually so called though their names we re included in categories other than those in which they ought to have been inc luded. Sri Choudhury has pointed out that taking into account that by re-arrange ment of the names of the candidates called for the interview in proper categorie s and by taking into account the marks secured by them in the interview it is st ill possible to salvage the situation. As indicated in para 9 of the affidavit o nly four candidates will go out and four others will come in their place and in cases of ten candidates the categories of posts for which they have been selecte d will have to be altered. Sri Choudhury has accordingly submitted that the Publ ic Service Commission should be allowed to undertake and complete the necessary corrective steps which will be conducive to larger public interest.

27. In so far as the issue with regard to the conduct of the written examination is concerned, Sri Choudhury has submitted that correction of marks of some candidates were made by the head examiner in accordance with the prevail ing norms and procedure and unless such corrections are demonstrated to be for o blique, extraneous or corrupt reasons, the Court should not come to any conclusi on adverse to the Commission. Sri Choudhury has further pointed out that the sta nd taken by the respondent No. 10 in the mater ought not to be scrutinized by th e Court on the law laid down by the Court in Bihar Public Service Commission & A nr -vs- Dr. Shiv Jatan Thakur (supra).

28. We have given our most anxious consideration to the facts of the case, the issues arising therefrom as well as the elaborate submissions advance d by the learned counsels for the contesting parties.

29. The Secretary shall subject to approval of the Chairman prepare a list o In so far as the issue with regard to the conduct of the written examination is concerned, provisions have been made in the Assam Public Service Commission (Procedure and Conduct of Business) Rules, 1986 laying down the norm s which are required to be followed for conduct of the written examination and t he interviews. Rule 31, 34, 36, 37, 38, 39, 40, 41 and 42 being relevant, are ex tracted hereinbelow : (cid:28)31. f the persons suitable to be appointed as Invigilators and Supervisors and shall appoint them as such. Provided that invigilators of the outstation Centres mayb e appointed by the Supervisors concerned in consultation with the representative s of the Commission deputed for the purpose & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 34. Ordinarily 3 weeks time shall be allowed for return of assessed answer b ooks by the Examiners, but the Commission may in special circumstances and on a request made by the examiner extend the time to a reasonable period. & & & & & & & & & & & & & & & & & & & & & & & & & & &.. & & & & & & & & & & & & & & & & & & & & & & & & & & &.. 36. The Controller of examination or the officer-in-charge as the case may b e shall in consultation with the Chairman take step for tabulation of marks as s oon as scrutiny of scripts, removal of discrepancies, removal of variations and correction if any have been done.

37. rectness and accuracy of tabulation as well as assessment of answer books. The Commission may cause random checking of the tabulation to ensure cor

38. As soon as the tabulation is completed and thoroughly checked by the off ice and the Commission as provided for in the above rules the Controller/ Office r in-charge shall submit the result before the Commission in the form and manner to be prescribed by the Commission to decide how many candidates are considered fit for being admitted to personality test/ interview.

39. It shall be the responsibility of the Controller of examination/ Officer in-charge to ensure correct tabulation of marks and correct restoration of orig inal Roll Number of candidates.

40. terview before a Board or Boards on any day. The Commission shall decide the number of candidates to be called for in

41. When on each day after the interview is over and marks are awarded to ea ch candidate the mark-sheet prepared shall be placed in sealed covers and will b e kept by the Chairman.

42. The mark-sheets so obtained shall be opened on the last day of the inter view or immediately thereafter and the marks of interview/ personality test in a competitive examination shall be added to the marks obtained by the candidate i n the written examination. Thereafter on the basis of totals so obtained the mer it list shall be prepared and placed before the Commission for final declaration of the result: Provided that the Commission may with a view to eliminate variation in t he marks awarded to candidate on any examination or interview adopt method, devi ce or formula which they consider proper for the purpose. (cid:29).

30. In addition to the elaborate procedure for evaluation of answer scripts of the written examination and the manner in which interviews are to be held, the proviso to Rule 42 of the aforesaid Rules empower the Commission to ad opt any method, device or formula as may be considered proper in order to elimin ate variation of marks awarded to a candidate in any examination or interview.

31. In order to explain the precise procedure that was adopted in th e conduct of the written examination, an affidavit has been filed by the Control ler of Examination on 13.8.2009 stating that after the answer scripts are receiv ed from the respective examiners, subjectwise scrutiny of the said answer script s is required to be carried out. Such scrutiny is to be done initially by the sc rutinizers and, thereafter, by the head examiner engaged for a particular subjec t. In the affidavit filed, it has been stated that the entire process of scrutin y is to take place in the office of the Commission and in the course of such scr utiny apart from ascertaining as to whether all the answers give have been evalu ated and whether the totaling of the marks is correct, the scrutinizers and ther eafter the head examiner(s) also undertake an exercise to find out whether any c andidate has been awarded high/ low marks. It has been further stated, in the af fidavit filed, that if anomalies on any of the aforesaid counts is found by the scrutinizer the matter is brought to the notice of the head examiner who either removes the anomalies detected by making the necessary corrections or such task, at times, is performed by the scrutinizer himself under the instructions of the head examiner. The Controller of Examination in the affidavit filed has further stated that the above procedure had been followed in the instant Combined Compe titive (Main) Examination conducted by the Commission. After due consideration of the statements made in the affidavit 32. dated 13.8.2009 filed by the Controller of Examination, the Court had also insis ted on the personal appearance of the Controller. Accordingly, the Controller ha d personally appeared before the Court and had made a statement that scrutiny of all the answer scripts and reference to the head examiner, where the same was c onsidered necessary, had been done. The Controller had also stated before the Co urt that the aforesaid practice has been in vogue in the Commission for long.

33. In matters pertaining to conduct of examinations either for recr uitment to public service as also in the case of examinations conducted by an Un iversity, the role of the Court normally is minimal. The Courts are not to act a s appellate bodies in such matters. Neither the Judges should assume the role of super examiners. In the absence of any strong compulsion the Courts will not un dertake a review of the actions of the scrutinizers and head examiners in allowi ng higher or lower marks to any particular candidate. The Court will also not ca rry out a review of the entire process to find out whether similar exercise of i ncrease or decrease of marks should have been done in case of all candidates. In the present cases the materials on record including the statement made by the C ontroller before the Court sufficiently indicates that all the answer scripts ha d been subjected to scrutiny and reference to the head examiner, when considered necessary, were made. Consequently, any review of the process is bound to resul t in a roving enquiry which must be avoided. That apart, the Court does not poss ess the necessary expertise in matters of evaluation of answer scripts. Such a t ask, therefore, must be left to the experts in the field.

34. In the present cases, a process contemplated by the Rules had be en undertaken by the body entrusted with the task. Unless specific instances are brought to the notice of the Court to show that the actions undertaken are viti ated by malafides or such actions are demonstrated to be prompted by extraneous or corrupt reasons, interference of the Court will not be justified. A process o f scrutiny of the answer scripts and in appropriate cases re-examination of the answer scripts by the head examiner takes place in any examination. Such steps a re an integral part of the attempt to objectively decide the merit of the candid ates and, therefore, must be allowed. A possibility of abuse inherent in the pro cess without actual proof thereof cannot be a ground for judicial review of the decision making process. In the present cases, the allegation based on the U/O N ote of the respondent No. 10 is that the head examiner had re-examined only 10% of the answer scripts. Doubt, therefore, has been raised with regard to the vali dity of the marks secured by the remaining 90% of the candidates. The materials laid before the Court decisively indicate that all the answer scripts were scrut inized by the scrutinizers and only those which were felt necessary to be placed before the head examiner(s) were so placed. Such action can hardly be faulted o n the premise that only 10% of the answer scripts came to be placed before the head examiner.

35. This will bring the Court to a consideration of the stand taken by the respondent No. 10, Dr. Sasadhar Nath, a sitting Member of the Commission . By order dated 13.8.2009 passed in M.C. No. 2123/2009 the prayer made by some of the selected candidates for striking of the name of Dr. Nath from the list of respondents has been refused by this Court on the grounds and reasons assigned in the said order dated 13.8.2009. In the said order it has also been held by th is Court that Dr. Nath has not challenged any action of the Commission so as to attract the bar imposed by the law laid down by the Apex Court in Bihar Public S ervice Commission & Ors. -vs- Dr. Shiv Jatan Thakur & Ors. (supra). The responde nt No. 10, Dr. Nath, had circulated the U/O Note dated 12.6.2009 highlighting c ertain illegalities/ irregularities in the conduct of the main written examinati on. The said U/O Note has formed the basis of a major part of the pleadings in t he writ petitions, particularly, in so far as the conduct of the written examina tion is concerned. In such circumstances, Dr. Nath was made a party respondent i n the writ petition. In response, he has filed two affidavits explaining what ha d happened. The aforesaid action has been stated to be prompted by the need to b ring about essential reforms in the conduct and performance of duties by the Com mission. The facts stated by the respondent No. 10 being relevant and vital to t he credibility of the Commission, in our considered view, the same should not be ignored on the basis of the plea advanced and, instead, the said facts, accordi ng to us, should receive due consideration of the Court keeping in mind that pro per conduct of examinations by the Commission is vital to instill public confide nce in the institution. We, therefore, propose to examine the facts stated by th e respondent No. 10 in the affidavits filed.

36. Adoption of a higher ratio to determine the number of candidates who had qualified to sit in the main examination and adoption of the ratio of 1 : 4 to call candidates for the interview, in a situation where there are no lai d down norms in this regard, cannot be allowed to vitiate the selections held. C alling of more candidates by itself will not be fatal as long as the candidates eligible to be called had been issued call letters. This aspect of the matter w ill be dealt with in a little more details in the discussion that will follow on the next issue arising in the case. The facts pointed by the respondent No. 10 with regard to the ho 37. lding of the written examination particularly, the role of the scrutinizers and head examiner(s) has already been dealt with by this Court in a preceding part o f this order. In the absence of any positive proof forthcoming to the effect tha t the supervisor(s)/ head examiner(s) had conducted themselves on extraneous gro unds and reasons, no adverse conclusion can be drawn merely because the scrutini zers/ head examiners had increased or decreased the marks in some cases. The manner of evaluation of the candidates in the interviews hel 38. d as highlighted by the respondent No. 10 in the affidavits filed; the allotment of marks to the Advisor and the parameters governing award of such marks as wel l as the issue with regard to the qualifications of the Controller and Assistant Controller of Examination are matters to be dealt with by the appropriate autho rity in the course of such action as may be considered necessary to improve the functioning of the Commission. The Court cannot have any role in such matters. Having dealt with the issues highlighted by the respondent No. 1 39. 0, we must observe that the respondent No. 10 was a party to the decision to pub lish the final select list which was taken on 15.6.2009. The respondent No. 10 h ad also participated in the conduct of the interviews. The fact that the respond ent No. 10 had not raised any voice of dissent at any earlier stage of the proce edings is another significant fact that cannot be ignored by the Court. Notwiths tanding the above we have deemed it necessary, in public interest, to deal with the issues contained in the U/O Notes and the affidavits of the said respondent and record our findings thereon.

40. This will bring the Court to a consideration of the issue with r egard to the horizontal and vertical reservation. The aforesaid two concepts hav e been succinctly explained by the Apex Court in Rajesh Kumar Daria (supra). Par a 9 of the judgment which clearly lays down the purport of the aforesaid two con cepts of reservation may be usefully extracted hereinbelow : (cid:28)9. The second relates to the difference between the nature of vertical reservat ion and horizontal reservation. Social reservation in favour of SC, ST and OBC u nder Article 16(4) are (cid:28)vertical reservations (cid:29). Special reservations in favour o f physically handicapped, women etc., under Articles 16(1) or 15(3) are (cid:28)horizon tal reservations (cid:29). Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved pos ts on their own merit, their number will not be counted against the quota reser ved for respective Backward Class. Therefore, if the number of SC candidates, wh o by their own merit, get selected to open competition vacancies, equals or eve n exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competiti on category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of I ndia v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul). But the afore said principle applicable to vertical (social) reservations will not apply to ho rizontal (special) reservations. Where a special reservation for women is provid ed within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong t the special reservation gro up of Scheduled Caste women. (cid:29) If the number of women in such list is equal to ou r more than the number of special reservation quota, then there is no need for f urther selection towards the special reservation quota. Only if there is any sho rtfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list rela ting to Scheduled Castes. To this extent, horizontal (special) reservation diffe rs from vertical (social) reservation. Thus women selected on merit within the v ertical reservation quota will be counted against the horizontal reservation for women. (cid:29).

41. The Apex Court in Rajesh Kumar Daria (supra) had also taken note of the following observations in the judgment in Indra Sawhney (supra) : (cid:28)All reservations are not of the same nature. There are two types of reservation s, which may, for the sake of convenience, be referred to as ’vertical reservati ons’ and ’horizontal reservations’. The reservations in favour of Scheduled Cast es, Scheduled Tribes and Other Backward Classes [under Article 16(4)] may be cal led vertical reservations whereas reservations in favour of physically handicapp ed [under Clause (1) of Article 16] can be referred to as horizontal reservation s. Horizontal reservations cut across the vertical reservations-what is called i nterlocking reservations. To be more precise, suppose 3% of the vacancies are re served in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belon gs to open competition (OC) category, he will be placed in that category by maki ng necessary adjustments. Even after providing for these horizontal reservations , the percentage of reservations in favour of Backward Class of citizens remains -and should remain-the same. (cid:29). The observations of the Apex court in Anil Kumar Gupta (supra) [ 42. para 18] quoted with approval in Rajesh Kumar Daria (supra) may also be extracte d hereinbelow : (cid:28)18. Now, coming to the correctness of the procedure prescribed by the revised n otification for filling up the seats, it was wrong to direct the fifteen per cen t special 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 co urse is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., SC, ST and BC; the third steps woul d be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied-in case it is an over all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/ accommodated agains t their respective social reservation categories by deleting the corresponding n umber of candidates therefom. (If, however, it is a case of compartmentalized ho rizontal reservation, then the process of verification and adjustment/ accommoda tion as stated above should be applied separately to each of the vertical reserv ations. In such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the rev ised notification provided for a different method of filling the seats, it has c ontribute partly to the unfortunate situation where the entire special reservati on quota has been allocated and adjusted almost exclusively against the OC quota . (cid:29).

43. The law laid down by the Apex Court in the aforesaid cases has clearly and categorically laid down that reservation for women is a horizontal reservation and is not over and above the vertical reservation provided to diffe rent categories like S.C, S.T. O.B.C. etc. Under the Reservation for Women Act o f Assam, 30% of the posts are reserved for women within each category i.e. open, S.C., S.T., O.B.C. etc. In the event the select list prepared on the basis of m erit for each category already includes the requisite number of women candidates no further exercise is required to be performed. However, if there is a shortfa ll of women candidates in order of merit will replace the last of the male candi dates. This is the essence of the application of the law relating to reservation under the Reservation for Women Act of Assam.

44. What was done by the Commission in the present case is that 30% out of the posts earmarked in each category i.e. open, S.C., S.T., O.B.C. etc. w ere kept open for competition amongst women candidates only belonging to each of such categories. The remaining 70% of the posts in each category was open to al l including female candidates. The list of candidates eligible for interview and the final select list of successful candidates was prepared on that basis. What was, therefore, adopted in order to give reservation to women under the Reserva tion for Women Act is the principle of vertical reservation thereby raising the limit of reservation beyond the constitutionally permissible 50%. Such action be ing contrary to the law laid down by the Apex Court, as noticed above, undoubted ly the final select list dated 15.6.2009 is vitiated and has to be set aside. T he question that confronts the Court is whether the Commission should be permitt ed to re-do the exercise on the basis of the interviews already held or whether the entire process should be directed to re-commenced from the stage of intervi ew. Certain facts which will be relevant for a just decision on the

45. above issue highlighted may now be usefully recapitulated: i) The candidates eligible to be called for interview, upon application of the correct legal principles and parameters, had been so called though such cand idates were placed in categories other than which they were entitled to be place d, as for example, a candidate eligible to be called as a open category candidat e was actually called as a OBC/MOBC candidate. ii) the interview board. iii) Though excess candidates had been called for the interview, 113 out of 1 16 candidates who will get selected upon application of the correct norms and pa rameters are amongst the 464 candidates who should have been called on the basis The marks secured by the candidates in the written test were not before of the 1 : 4 ratio. The remaining three are ST(P) candidates who will make it to the final s None of the excess candidates called for the interview for any of the ca elect list on the basis of the quota available to them. iv) tegories did figure in the final select list already published. v) If realignment upon repetition of the exercise by application of correct parameters is to be done, 4 candidates out of 116 already selected will have to be excluded and in their place 4 other candidates will come in. In case of 10 candidates there will be a change of the category of posts in which they have b een offered appointment.

46. The role of the Court in such matters must be a constructive one . The power to nullify is a drastic power which must be reserved to be exercised when reconstruction is not possible. To the extent reconstruction is possible w ithout offending the rights of the persons involved, the Court must always lean in favour of such a course of action. In the present cases, the materials on rec ord clearly establish that all candidates who were required to be interviewed up on application of the correct principles and parameters of the law relating to r eservation had actually faced the interview though as candidates of some other c ategory. The marks of the written test were not available to the members of the interview board. The exercise, if re-done by application of correct parameters, will have minimal effect as already indicated and as stated in para 9 of the aff idavit of the Commission dated 10.8.2009. The Court, therefore, would be incline d to lean in favour of permitting the exercise to be re-done subject to our view s on the objections raised in this regard by the learned counsels for the select ed candidates

47. A point has been raised that the result/ consequences indicated by the Commission in para 9 of the affidavit dated 10.8.2009 does not reflect th e view of the Commission as the matter is yet to be placed before the Commission . Naturally, any further exercise in the matter will have to be performed by the Commission as a body after a detailed examination of all aspects of the matter to ensure that no further errors creep in. In other words, the minimal impact of the de novo exercise, as claimed in the affidavit of the Commission, will have to be verified and approved by the Commission as a body.

48. An argument has been advanced that if the select list dated 15.6 .2009 is to be set aside, the Commission will not have any power to review the n ames of the selected candidates in order to effect any alterations therein. Emph asis in this regard has been laid on the absence of any expressed power of revie w in the Commission. The argument is self-defeating. If the select list dated 15 .6.2009 is to be set aside by this Court, further course of action in accordance with law must be left to the discretion of the Commission. Furthermore, as hel d by the Apex Court in R.R. Verma & Ors. -vs- The Union of India & Ors., (AIR 19 80 SC 1461), the absence of an expressed power of review will not come in the wa y of review of a administrative decision. The legal right of the four candidates mentioned in para 9 of th 49. e Commission’s affidavit dated 10.8.2009 who, according to the Commission, will not be entitled to be included in the select list upon application of the correc t principles and parameters of law may now be considered. The selection of the a foresaid four candidates being contrary to the law laid down by the Apex Court w ith regard to horizontal reservation, cannot vest in any of such candidates a le gal right to insist that their names should continue to remain in the list of se lected candidates. The aforesaid four persons were not initially parties to the writ petition but three of them have subsequently impleaded themselves as respon dent Nos. 8, 28 and 51 in the writ petition pursuant to the notice issued by thi s Court. The aforesaid persons, therefore, are parties to the writ petition who have also participated in the hearing. Therefore, there cannot be any legal impe diment to their exclusion from the list of selected candidates if such exclusion is justified on application of the correct principles of law.

50. An argument has been advanced on behalf of the petitioners that out of the 116 posts advertised even if the 11 backlog vacancies are excluded, 1 05 posts will remain in the fray to which posts the maximum limit of permissible reservation will be applicable. In that event, at least 53 posts have to be all owed to the open category candidates whereas, admittedly, the Commission has ear marked 51 posts for the open category candidates. The point has substance and ca Even marginal de nnot be ignored on the ground that the variation is marginal. viations from an established constitutional principle cannot be tolerated in a s ystem governed by the Rule of law. The action of the Commission in earmarking 5 1 posts for the general/ open category candidates, therefore, is not sustainable .

51. All relevant facets of the cases having been discussed elaborate ly, we now deem it proper to reach the conclusion that the writ petitions should be partly allowed. The select list dated 15.6.2009 is set aside leaving it ope n for the Commission to take further steps in the matter in the light of the obs ervations and findings recorded in the present order and the law laid down by th e Apex Court in the decisions referred to herein.

52. Having regard to the facts and circumstances of the case, we are of the view that the parties should be left to bear their respective costs. B. K. Sharma, J While agreeing with the findings and conclusions reached by his Lordship Hon’ble Mr. Justice Ranjan. Gogoi, Chief Justice (Acting) in the judgement, I w ould like to give vent to my thoughts generated in my mind on perusal of the mat erials on records and upon hearing the learned counsel for the parties.

2. My Lord’s opening passage of the judgement highlighting the erosion of p ublic confidence in the APSC over the years is an act and timely observation. Th ere is no gainsaying that an Institution like APSC must be the repository of pub lic confidence. Once the confidence is shaken, even the right direction of funct ioning will be doubted. Such is the importance of public confidence in APSC that the people often question the credibility of its members on whom the credibilit y of an Institution like APSC largely depends. It has rightly been observed that people of exemplary conduct, exceptional ability and utmost integrity, who shar e a serious concern for maximum public good should alone be inducted into such a body. Often it is seen that members of APSC are inducted on extraneous consider ation possessing qualification other than those. Much was debated during the course of hearing regarding the role of the 3. respondent No.10, who is a sitting member of the APSC. It was also suggested tha t he being not a necessary party, his name should be stuck off as respondent. It was also submitted, upon a reference to the decision of the Apex Court in Bihar Public Service Commission Vs. Dr. Shiv Jatan Thakur reported in 1994 Supp(3) SC C 220 that the respondent No.10 cannot be allowed to question the very selection of which he was a party. We, by our order dated 13.8.2009 passed in MC No. 2123 /2009, have overruled the plea on the ground assigned in the order. We have also heard him in person.

4. In the counter affidavits filed by the said respondent No.10, certain di sturbing revelations have been made. In his affidavits he has enclosed two U.O. notes dated 12.6.2009 and dated 4.7.2009 addressed to the Secretary, APSC. He ha s also enclosed the letter dated 22.6.2009 addressed to the Secretary, APSC by a nother sitting member. The contentions raised in the said two affidavits and the U.O. notes, have been generally discussed in the judgement. It is really distur bing that a sitting member of the APSC has to state about the allegations that t here exists some rackets of brokers or agents inside and outside the APSC.

5. One significant aspect of the matter as highlighted by the said member i s that the candidates were required to furnish their telephone / contact numbers in the prescribed column of the application forms for the main combined competi tive examination, 2006. There was no such provision for providing phone number b y the applicant in the application form for the preliminary examination but suc h a provision was made for the main examination. It is in this context, the said member has alleged that the availability of the phone numbers in the applicatio n forms possibly has linkages to the allegations of corrupt practices.

6. The respondent No.10 has also pointed out the alleged illegality in rais ing the marks in the answer script of respondent No.7, stated to be a relation o f Controller of Examination, APSC i.e. the respondent No.6.

7. Allegation regarding awarding extra marks to the respondent No.8, anothe r candidate has also been made. The respondent No.10 has also questioned the ver y basis of addition of marks by the Head Examiner. In this connection, he has re ferred to the provisions of the Assam Public Service Commission (Procedure and C onduct of Business) Rules, 1986. According to him, there is no provision in the rules for revaluation of the answer scripts by the Scrutinisers or by the Head E xaminers.

8. Further allegation made by the said member is that in some answer script s, marks were reduced by the Scrutinisers or Head Examiners, which according to him had the potential of two fold objectives, (i) to reduce the marks to remove some candidates from the run in the competition of inter se merit and (ii) to re duce the burden of adding extra marks for the entitled candidates for securing s lots in the select list as addition of a large figure of extra marks would requi re handling of many questions of many scripts that also with un-reasonably high marks. According to him in one script bearing Roll No. 8578 (Code No. 171) as hi gh as 35 marks were deducted from the marks given by the Examiner in History pap er. Although, he had discussed and pointed out such discrepancies and anomalies but as per the affidavits filed by him, such discussion was discouraged. It is the belief of the respondent No.10, that if deducted marks are rec 9. onciled and original marks given by the Examiners restored, some candidates woul d secure slots in the select list. Further stand of the respondent No.10 is that if the extra marks added are eliminated and the original marks given by the exa miners restored, the actual successful candidates would remain in the select lis t with their actual inter se merit.

10. nclosed the letter dated 22.6.2009, addressed to the Secr In the additional affidavit filed by the said respondent No.10, he has e