High Court · 2009

The averments made in the writ petition also indicate that the r 4. oll numbers of two candidates who did not clear the preliminary examination have been shown to be successful in the main written examination. Additionally, the petitioners have contended that one Rahul Pratim Das who had qualified for the interview did not have a B.A. Degree on the relevant date i.e. 11.9.2006 (last d ate for submission of applications). Lastly, the petitioners contend that neithe r the Chairman nor any Member of the Commission had subscribed to the oath of se crecy as required under the provisions of the Assam Public Service Commission (A mendment) Regulations, 2005 framed under Article 318 of the Constitution. Conseq uently, it is contended that the Chairman and other Members of the Commission ca nnot be understood to have lawfully entered their respective offices so as to au thorize them to participate in the impugned selection process.

5. The ground taken by the petitioners that the candidate, Rahul Pr atim Das, was not eligible has been so taken by means of an additional affidavit dated 20.1.2009. In the said affidavit, referring to an earlier order of this C ourt dated 6.1.2009 passed in a proceeding registered and numbered as WP(C) No. 5368/2008, the petitioners have contended that notwithstanding the order of the Court, the additional list of candidates qualified for the interview, as publish ed, still include many ineligible candidates and at the same time several eligib le candidates have not been called for the viva-voce test.

6. The respondents have filed an affidavit dated 21.1.2009 wherein it has been stated that the writ petition lacks in material particulars and seek s a roving enquiry in the matter of selection of candidates which is not permiss ible in law. In so far as the sons, daughters and relatives of the functionaries of the Commission and those of certain ministers and MLAs is concerned, the st and of the Commission is that the aforesaid persons have not been made parties t o the writ petition. Besides, it has not been indicated in any precise manner as to how the concerned persons had influenced the decision making process in the present case. In so far as the allegation against Sri Rakhal Hari, Member of the Commission is concerned, the respondents, in the affidavit filed, have stated t hat a notice dated 12.8.2007 was circulated by the Chairman of the Commission as king all concerned to disclose their interest, if any, in the Combined Competiti ve Examination. Pursuant thereto, Sri Rakhal Hari by letter dated 8.12.2008 had informed the Commission that as his son is involved in the said examination he w ould like to dis-associate himself from the process of selection. According to t he respondents, in the written examination held the Members and Officers of the Commission had no role to play as the question papers had been set and evaluati on of the answers done by a set of approved examiners. In so far as Sri Bharat C h. Goswami, Deputy Secretary of the Commission is concerned, it is the stand of the respondents that the aforesaid person was not in any way involved in the exa mination process. As regards the inclusion of the roll numbers of two persons in the list of candidates selected for interview, though they had not qualified in the preliminary examination, the stand of the Commission is that inclusion of t he said two roll numbers is due to an inadvertent error which has been subsequen tly corrected. The respondents have also filed an affidavit to the additional a 7. ffidavit dated 20.1.2009 filed by the petitioners wherein it has been stated tha t the written examination and the selection of candidates for the interview has been done strictly in conformity with the Rules and norms in force and there ha s been no infraction whatsoever in that regard. The respondents have further sta ted that the directions of this Court dated 6.1.2009 passed in WP(C) No. 5368/20 08 have been faithfully complied with by calling ninety three more candidates fo r the interview. Alongwith the said additional affidavit the respondents have en closed a brief note showing the manner in which the selection of candidates of e ach category had been made. The said document has been enclosed as Annexure-3 to the additional affidavit of the Commission. In so far as the issue with regard to oath of secrecy is concern 8. ed, the respondents in the affidavit filed have indicated that the said requirem ent was brought into effect by the provisions of the Amendment Regulations which had come into force on the date of publication in the Gazette i.e. 22.2.2005. T he respondents, in the affidavit filed, have stated that efforts have been made to request the Hon’ble Governor to administer the oath to the Chairman and Membe rs of the Commission and further that the selection in question will not be viti ated merely on account of the failure of the Chairman and the Members of the Com mission to subscribe to the oath prescribed by the Regulations in question. We have heard Sri MK Choudhury, learned senior counsel for the p 9. etitioners and Sri KN Choudhury, learned senior counsel appearing on behalf of t he respondents. The pleadings having been noticed, the arguments advanced may no

10. w be recapitulated. Sri MK Choudhury, learned senior counsel for the petitioners has contended that though the infirmities in the selection process as pleaded, if considered indepe ndently, may not vitiate the selections held, the cumulative effect of the said irregularities indicate that the selections in question had not been conducted f airly. Sri Choudhury has pointed out that though the notice/ advertisement for t he posts was issued on 10th August, 2006 and the Chairman of the Commission had issued a circular dated 12.8.2007 asking the Members and Officers of the Commiss ion to indicate their interest, if any, in the aforesaid selections, Sri Rakhal Hari, Member of the Commission had expressed his disinclination to be associated with the selection process only by means of the letter dated 8.12.2008. The sai d letter has been issued after the result of the written examination was declare d. Relying on a judgment of the Apex Court in R/o Smt. Sayalee Sanjeev Joshi, me mber, Maharashtra Public Service Commission, reported in AIR 2007 SC 2809, Sri Choudhury has submitted that the aforesaid act amount to a mis-conduct on the pa rt of the Member, Sri Rakhal Hari. Continuing, Sri Choudhury has pointed out that the Commission in the affidavit f iled in the earlier writ proceeding i.e. WP(C) No. 5368/2008 had acknowledged th at in the initial list of candidates called for the interview, the female candid ates entitled to be called against the general category posts on the basis of th eir merit were included in the posts reserved for women under the provisions of the Reservation for Women Act. In the said affidavit, it was further stated on b ehalf of the Commission that in the fresh exercise to be done, as undertaken bef ore the Court, the candidates of each category as per their merit alone will be included in the revised list of successful candidates. Yet, it appears from the additional affidavit dated 28.4.2009 filed on behalf of the Commission that cand idates included against OBC/MOBC quota of female candidates under the Reservatio n for Women Act have secured higher marks than female candidates of the general category selected under the provisions of the aforesaid Act. The same is the pos ition with regard to female ST(H) candidates. Sri Choudhury has submitted that t he aforesaid facts clearly indicate that in preparing the list of female candida tes against the quota reserved for different categories under the Reservation fo r Women Act, candidates belonging to the OBC, MOBC and ST(H) categories, though had secured higher marks then the general category female candidates, have been included against the quota earmarked for the reserved categories and not in the list of general category female candidates. Sri Choudhury has also submitted th at the aforesaid anomaly is bound to give rise to consequential irregularities i .e. inclusion of ineligible candidates in the list of female candidates belongin g to the general category as well as exclusion of eligible candidates from the l ist of male and female candidates belonging to OBC, MOBC and ST(H) categories un der the Reservation Act of 1978. According to the learned counsel, the aforesaid issue, notwithstanding the fact that no female candidate is before the Court, s hould be gone into by the Court as the exercise of jurisdiction under Article 22 6 is in the domain of public law and gross illegalities/ irregularities having c ome to the notice of the Court, the same should not be ignored.

11. In so far as the oath of secrecy prescribed by the Regulations i s concerned, Sri Choudhury has submitted that in the present case it is an admit ted fact that neither the Chairman nor any of the Members of the Commission had taken oath as required by the Regulations. Sri Choudhury has relied on a decisi on of the Apex Court in Ramchandra Keshav Adke (Dead) by Lrs. -vs- Govind Joti Chavare & Ors. reported in AIR 1975 SC 915 (Para 25) to contend that the Regula tions having prescribed taking of oath of secrecy, the said provisions must be s crupulously followed so as to confer legitimacy to the assumption of office by t he Chairman and the Members of the Commission. A decision of the Allahabad High Court reported in AIR 1965 ALLAHABAD 97 (Shabbir -vs- State›) has also been reli ed upon by Sri Choudhury to contend that taking of oath is mandatory and in the absence thereof, it cannot be understood that the Chairman and the Members of th e Commission had entered office lawfully so as to enable them to exercise the po wers and functions vested in the respective offices including such exercise in c onnection with the presently impugned selections.

12. Controverting the submissions advanced on behalf of the petition ers, Sri KN Choudhury, learned senior counsel appearing for the respondents has contended that the allegations levelled against the impugned selection process a re vague, ambiguous and the same lack in material particulars. A bald statement that the selection process was arbitrary; that the answer papers were scrutinize d mechanically and that the some of the selected candidates were sons and daught ers of Members and Officers of the Commission or related to Ministers/ MLAs and other VIPs will not be adequate for the Court to enter into any kind of meaning ful enquiry in the matter. Sri Choudhury, in particular, has drawn the attenti on of the Court to the affidavit dated 21.2.2009 as well as the additional affid avits dated 16.3.2009 and 28.4.2009 filed by the respondents. Sri Choudhury ha s contended that in the present case, Sri Rakhal Hari, Member of the Commission had dis-associated himself with the process of selection once his son was found to have qualified for the interview and the Deputy Secretary of the Commission S ri Bharat Ch. Goswami, who has now retired, was not associated with the written examination at all. According to the learned counsel, the written examination wa s conducted by an approved team of examiners who had set the question papers and had evaluated the answer scripts. The Members and Officers of the Commission ha d no role to play in this regard.

13. In so far as taking of oath is concerned, Sri Choudhury has argu ed that the said requirement is not a mandatory requirement, inasmuch as, the re quirement of oath has been prescribed not by the Constitution but by the Regula tions framed under Article 318 of the Constitution. Sri Choudhury has pointed ou t Article 318 of the Constitution empowers the framing of Regulations to lay dow n the conditions of service of the Members of the Commission. As to in what circ umstances the provisions embodied in a statute or in any subordinate legislation are to be construed as mandatory or directory, reliance has been placed by Sri Choudhury on three decisions of the Apex court i.e. State of Uttar Pradesh and Ors. -vs- Babu Ram Upadhya reported in AIR 1961 SC 751 (Para 29); Virji Ram Suta ria -vs- Nathalal Premji Bhanvadia & Ors. reported in AIR 1970 SC 765 and Renu Bisoi & Ors. -vs- Gour Chandra Pradhan & Ors. reported in (1999) 6 SCC 6.

14. In so far as the selection of female candidates belonging to the general category and those belonging to the OBC, MOBC and ST(H) under the provi sions of the Reservation of Women Act, 2005 is concerned, Sri Choudhury has dra wn the attention of the Court to the second proviso to Section 4 of the aforesai d Act to contend that after the female candidates belonging to the different res erved categories are identified for conferment of the benefit of reservation und er the Reservation of Women Act, the remaining posts would be available to the f emale candidates of unreserved category only. Sri Choudhury, therefore, has subm itted that out of the 31 posts available for being filled up by female candidate s under the provisions of the Reservation of Women Act, 15 posts were earmarked for being filled up by female candidates of different reserved categories accord ing to the percentage of reservation allowable. The remaining 16 posts under the second proviso to Section 4 of the Reservation of Women Act were, therefore, re quired to be filled up by women of unreserved category only. Sri Choudhury has argued that no discernible illegality or irregularity has affe cted the selections which should, therefore, be left undisturbed by the Court.

15. As the purport and effect of the aforesaid proviso may have to b e dealt with in details by the Court in the course of the discussions that may f ollow, it will be appropriate to quote hereinbelow the provisions of Section 4 o f the Reservation of Women Act, which read as follows :- (cid:28)4. Reservation for women in vacancies to be filled up by direct recruitment-At the commencement of this Act, 30 percent of the vacancies in respect of all appo intments to be services and posts in the establishment which are to be filled up by direct recruitment shall be reserved for the women candidates: Provided that the aforesaid reservation shall be inclusive of the reservation pr ovided statutorily or otherwise of the Scheduled Castes, Scheduled Tribes (Plain s), Scheduled Tribes (Hills), Other Backward Classes, More Other Backward Classe s and persons with disabilities within the respective reserved category : Provided further that 30 percent reservation of the vacancies in respect of the Women for the remaining unreserved Category of candidates shall be available to the Women of unreserved category only. (cid:29)

16. The better academic record claimed by the petitioners cannot be a valid ground for the Court to entertain any doubt with regard to the validity of the impugned selection, inasmuch as, the performance of the candidates was ju dged separately in a preliminary examination followed by the main examination. T he allegation of mechanical and whimsical scrutiny of answerscripts of the writt en examination, being without any supporting materials and/or particulars, canno t legitimately pursuade the Court to order for a probe into the said issue. The Court cannot invoke its jurisdiction on the basis of bald and omnibus allegation s as any scrutiny on the basis of such allegations would amount to a roving/ fis hing enquiry which is not permissible in law. If the petitioners legitimately wa nted a further investigation in the matter of scrutiny of the answerscripts of t he main written examination, it was incumbent on their part to furnish some part iculars to prima facie satisfy the Court that scrutiny of the answer scripts had not been reasonably satisfactory. Similarly, merely because some of the selecte d candidates happened to be related to the Members or Officers of the Commission or political functionaries of the State, the same by itself, will not be a suff icient ground for the Court to hold the said selections to be vitiated. A son/ d aughter or a relative of any Member or Officer of the Commission or a political functionary is as much entitled to take part in the selection for any public pos t as any other candidate and unless there are materials to indicate that the sel ection of such candidate is on account of any unfair advantage gained by him/her or that the particular office has been abused or misused to ensure selection of the candidate concerned, interference of the Court will not be justified. In th e present case, no such materials are forthcoming. In so far as the candidature of Sri Anit Kumar Hari, son of Sri Rakhal Ch. Hari, Member of the Public Service Commission is concerned, no material has been forthcoming to show that the sele ction of the aforesaid candidate has been made by misuse of the office held by S ri Rakhal Ch. Hari. In so far as the reliance placed by the learned counsel for the petitioners on the decision of the Apex Court in Smt. Sayalee Sanjeev Joshi (supra) is concerned, in the aforesaid case the Apex Court was considering the q uestion as to whether the concerned Member of the Public Service Commission had committed mis-conduct by not declaring that her daughter was a candidate in an e xamination conducted by the Commission. The said question was dealt with by the Court even though the daughter of the Member of the Commission did not finally p articipate in the selection. The Apex Court, therefore, did not and, in fact, co uld not have considered the validity of the selection which is the issue that co nfronts the Court in the present case. Whether misconduct had been committed by Sri Rakhal Ch. Hari is not an issue in the present case. The authority cited, t herefore, would not be relevant to the present case. In the face of the uncontro verted statements made in the affidavit filed by the respondents that the Member s and Officers of the Commission had no effective role in the conduct of the wri tten examination which was entrusted to a panel of approved examiners and, in th e absence of any material whatsoever to show that any undue favour was shown to Sri Anit Kr. Hari because of his relationship with Sri Rakhal Ch. Hari, Member o f the Public Service Commission, the Court is unable to hold that the selection of the aforesaid candidate for the viva-voce test is in any way vitiated in law .

17. The grievance of the petitioners with regard to inclusion of two roll numbers in the list of candidates declared successful for the viva-voce te st i.e Roll Nos. 22455 and 38692 has already been attended by the Commission by issuing the necessary corrigendum and, therefore, the said aspect of the matter will not require any further orders of the Court. In so far as the allegation that Sri Rahul Pratim Das (Roll No. 18. 28220), though not eligible (he having acquired the B.A. Degree after the last d ate for submission of applications), had been included in the list of candidates to be called for the interview is concerned, the Court has noticed that in none of the affidavits filed by the respondents the said position has been disputed or even clarified. In the absence of any denial by the respondents, the Court wi ll have to accept the claim made by the petitioners in this regard. However, the aforesaid Sri Rahul Pratim Das is not a respondent in the present case. In such circumstances, the Court is of the view that it would be appropriate to direct the Public Service Commission to take necessary corrective steps with regard to the candidature of Sri Rahul Pratim Das (Roll No. 28220), as may be required in law after due verification of the relevant facts.

19. This will bring the Court to a consideration of the consequences of the Chairman and the Members of the Commission not subscribing to the oath a s required under the provisions of the Assam Public Service Commission (Amendmen t) Regulations, 2005. Article 318 of the Constitution authorizes the Governor of a State to make Regulations to determine the number of Members of the Commissio n and their conditions of service. In exercise of the said powers the Assam Publ ic Service Commission Regulations, 1951 had been framed which have been amended by the Amendment Regulations, 2005, inter alia, incorporating Regulation 4(vi) i n the principal Regulation. Regulation 4(vi) of the Amendment Regulations, 2005 reads as follows: (cid:28)4.(vi)The Governor of Assam or his nominee shall administer the oath of Secrec y to the Chairman and Members before entering upon their office according to the following form, namely- I, A having been appointed as Chairman/ Member of the Assam Public Servi ce Commission do swear in the name of God and solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will faithfully discharge the duty upon which I am about to enter. (cid:29)

20. Much debate had taken place on the true purport and effect of Re gulation 4(vi) incorporated by the amendment made in the year 2005. The learned counsel for the petitioners has contended that the Regulations having prescribed an oath to be subscribed by the Chairman and the Members of the Commission, it was obligatory on their part to take oath before entering office. The learned co unsel has vehemently contended that in the present case the Chairman and the Mem bers of the Commission not having taken the oath prescribed by the Regulations, the Court must construe the discharge of the powers and performance of the funct ions by the Chairman and the Members of the Commission to be unauthorized in law . On the other hand, the learned counsel for the respondents has sought to persu ade the Court that the provisions of the Regulations are not mandatory and in th is regard, reliance has been placed on a number of judgments of the Apex Court l aying down the principles of interpretation that should be adopted by the Court in determining the mandatory or directory nature of the provisions of a legislat ion including the provisions of the Constitution.

21. There is no manner of doubt that the principles of interpretatio n that are required to be adopted by the Court to determine the mandatory or dir ectory nature of a piece of legislation including a subordinate legislation will also be applicable while considering the similar effect of a constitutional pro vision. In State of Uttar Pradesh and Ors. -vs- Babu Ram Upadhya, AIR 1961 SC 75 1 (Para 29), the Apex Court laid down the following to be the relevant rule of i nterpretation to be adopted by the Courts while construing whether a provision i n a statute is directory or mandatory : (cid:28)When a statute uses the word (cid:28)shall (cid:29), prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully atte nding to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design o f the statute, and the consequences which would follow from construing it the on e way or the other, the impact of other provisions whereby the necessity of comp lying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provision s, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom and, above all, whether the object of the legislative will be defeated or furthered. (cid:29)

22. The same principle was laid down by the Apex Court in Virji Ram Sutaria -vs- Nathalal Premji Bhanvadiar & Ors., reported in AIR 1970 SC 765 (P ara 11), which is to the following effect : (cid:28) 11. The above cases are sufficient to show that non-compliance with the provis ions of a statute or Constitution will not necessarily render a proceeding inval id if by considering its nature, its design and the consequences which follow fr om its non-observance one is not led to the conclusion that the legislature or t he constitution-makers intended that there should be no departure from the stric t words used. (cid:29)

23. In M/s. Atlas Cycle Industries Ltd. & Ors. -vs- The State of Har yana, (1979) 2 SCC 196 (Para 20), the Apex Court laid down that two relevant con siderations for regarding a provision in the statute as directory would be :- (cid:28)(1) absence of any provision for the contingency of a particular provision not being complied with or followed, and (2) serious general inconvenience and preju dice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non-compliance with the particular provi sions (cid:29)

24. It is with the aid of the aforesaid precedents that Sri KN Choud hury, learned senior counsel for the respondents has contended before the Court that the provisions of Regulation 4(vi) of the Assam Public Service Commission ( Amendment) Regulations, 2005 should be construed to be directory and not mandato ry. Sri Choudhury has further contended that the requirement of taking oath is n ot under the Constitution but the same has been brought into force by an amendme nt of the Regulations framed under Article 318 of the Constitution. In this rega rd, Sri Choudhury has further submitted that Article 318 empowers framing of the Regulations to lay down conditions of service of the Members of the Commission and taking of oath cannot be understood to be a part of the conditions of servic e of a Member of the Commission. Sri Choudhury has also pointed out that in the present case the failure of the present Chairman and Members to subscribe to suc h oath cannot be understood to have vitiated the selections in the absence of an y consequential provision for disqualification under the Regulations. Sri Choud hury, therefore, submits that the requirement of taking oath is not inviolable, non-compliance of which will invalidate exercise of powers and discharge of func tions by the Members of the Commission.

25. fly noticed : The decisions cited on behalf of the petitioners may now be brie In Ramchandra Keshav Adke (Dead) by Lrs. -vs- Govind Joti Chav A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426 Jessel M.R. adopte are & Ors, AIR 1975 SC 915, the Apex Court was considering the question as to w hether the provisions of the Bombay Tenancy Act, 1948 with regard to surrender o f tenancy by a tenant are mandatory or directory. The observation made by the Ap ex Court in Para 25 of the aforesaid judgment has been relied upon by the learne d counsel for the petitioners. The aforesaid paragraph, therefore, is extracted below: (cid:28)25. d the rule that where a power is given to do a certain thing in a certain way, t he thing must be done in that way or not at all and that other methods of perfor mance are necessarily forbidden. This rule has stood the test of time. It was ap plied by the Privy Council in Nazir Ahmed v. Emperor, 63 Ind App 372 = (AIR 1936 PC 253(2)) and later by this Court in several cases, Shiv Bahadur Singh v. Stat e of V.P. (1954) SCR 1098 = (AIR 1954 SC 322 = 1954 Cri L.J 910): Deep C hand v. State of Rajasthan, (1962) SCR 662= (AIR 1961 SC 1527 = 1961 (2) Cri L. J. 705) to a Magistrate making a record under Sections 164 and 364 of the Code o f Criminal Procedure, 1898. This rule squarely applies (cid:28)where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to d o the thing in a particular manner did not imply a prohibition to do it in any o ther. Maxwell’s Interpretation of Statutes, 11th Edn., pp. 362-363. (cid:29) The rule wi ll be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surr ender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of S.5(3)(b). (cid:29).

26. Reliance has also been placed on the judgment of the Allahabad H igh Court in Shabbir -vs- State›, reported in AIR 1965 ALLAHABAD 97. In the afo resaid case the Allahabad High Court was considering the consequences of a High Court judge not taking oath in accordance with the form prescribed by the 16th A mendment to the Constitution (Article 219). The aforesaid 16th Amendment came in to force with effect from 5th October, 1963 and the concerned Hon’ble Judge had taken oath in accordance with the earlier form on 7th October, 1963. However, wh en the aforesaid omission was discovered, a fresh oath was administered to the H on’ble Judge on 18th October, 1963 in accordance with the form prescribed by the 16th Amendment. The Allahabad High Court took the view that the form of oath pr escribed by the 16th Amendment having included the words (cid:28)That I will uphold the sovereignty and integrity of India (cid:29), taking of oath as per requirement introduc ed by the 16th Amendment was mandatory. However, as the Hon’ble Judge had subscr ibed to a fresh oath in the new form on 18th October, 1963 and the said date was before the date of hearing of the case in the course of which the legal compete nce of the Hon’ble Judge was raised the said question of competence had to be an swered in the affirmative i.e. in favour of competence of the Hon’ble Judge. Fro m the above decision, the learned counsel for the petitioner has sought to build up an argument that subscription of oath prescribed in the present case is mand atory. The learned counsel for the petitioners has also relied on another judgme nt of the Apex Court in Pashupati Nath Sukul -vs- Nem Chandra Jain & Ors. report ed in AIR 1984 SC 399 to contend that an elected member of a Legislative Assembl y, before taking of oath as prescribed by Article 188 of the Constitution, canno t take part in any proceeding of the house though such a member can take part in all non-legislative activities of an elected member. The proposition that when the statute prescribes exercise of a p 27. ower in a particular manner such manner must be resorted to and the power confer red cannot be exercised in any other manner, has come to be regarded as an accep ted principle for nearly a century now. The decision of the Apex Court in Ramcha ndra Keshav Adke (Dead) by Lrs. (supra) though has elaborately traced the histor y of the precedents on the point, would hardly assist the Court in arriving at t he right conclusion in the present case wherein the issue is whether the Chairma n and the Members of the Commission can exercise any of their powers without sub scribing to the oath prescribed by the Regulations. The decision of the Allahaba d High Court relied upon by the learned counsel for the petitioners pertains to the office of the Judge of the High Court in respect of which office taking of o ath in the prescribed form is a part of the constitutional document itself. The decision of the Apex Court in Ramchandra Keshav Adke (Dead) by Lrs. (supra), wh ich deals with taking of oath by an elected member of the Legislative Assembly w ould stand on the same footing.

28. In the present case, the requirement of oath has been prescribed under the Regulations framed in exercise of powers to lay down conditions of se rvice of a Member of the Commission. Conditions of service, normally, includes m atters such as constitution of service, nomenclature of posts, categories of cad res, their creation/ abolition, prescriptions of qualifications, provisions of p romotion, criteria for promotion and like matters. Conditions of service normall y denote the conditions subject to which an incumbent enters office and once he enters office the conditions by which his service is to be governed. An oath sub scribed to by a person before entering office is a sacred and solemn act by whic h the person affirms to himself, in presence of others, that he will conduct him self in the office that he is about to enter in a befitting manner and in accord ance with the constitution and the laws of the country. The oath subscribed to b y a person is more often than not a reminder of what is expected of him in the c onduct of a public office. This is not to downplay the importance of oath to be subscribed by a Member of the Commission in a situation where the same has been laid down by the Regulations framed. What is sought to be emphasized is the esse ntial difference between the requirement of oath prescribed by the Constitution itself and the requirements prescribed by a set of Regulations framed in exercis e of powers to lay down conditions of service.

29. Furthermore, in the present case, Regulation 4(vi) extracted abo ve requires the Governor of Assam or his nominee to administer the oath of secre cy to the Chairman and the Members of the Commission before they enter office. T he form of oath prescribed, however, pertains to the oath of office and not an o ath of secrecy. There is an essential difference between an oath of office and a n oath of secrecy which is evident from a reading of the forms prescribed by the Third Schedule to the Constitution. While holders of certain constitutional off ices are required to subscribe to an oath of office, only particular categories of constitutional functionaries are required to subscribe to the second oath i. e. oath of secrecy. In the present case, though the Regulations contemplate oath of secrecy, the form prescribed is one of oath of office. From the aforesaid pe rspective, even if the Chairman and the Members of the Commission had subscribed to oath in the form prescribed, the requirement of oath prescribed by the main part of Regulation 4(vi) would still not have been fulfilled. In such a situatio n it is difficult for the Court, having regard to the scheme designed and the la nguage used in the Regulations to come to the conclusion that what has been stip ulated by Regulation 4(vi) is a mandatory requirement knowing or recognizing no exception.

30. However, the Court would like to emphasize that the requirement of taking of oath, though laid down by the Regulation in a somewhat indifferent manner, is a salutory requirement which the Chairman and Members of the Commissi on must fulfill once the inconsistency between the requirement prescribed by the main part of Regulation 4(vi) and the form set out thereunder is removed by sui table alteration of the prescription contained in the Regulation.

31. This will bring the Court to the last issue. From the materials placed before the Court in the affidavit of the respondents dated 28.4.2009, it is evident that the cut off marks (to be eligible for the interview) for the gen eral category women candidates and the said marks for the OBC, MOBC and ST(H) fe male candidates both of whom have been included under the quota prescribed by th e Reservation for Women Act, 2005, is 590 (General); 608(OBC, MOBC) and 592 [ST( H)]. From the said facts available in the affidavit of the respondents and the j ustification for the same as advanced by Sri KN Choudhury, learned senior counse l for the respondents, it is clear that while preparing the list of female candi dates against the quota reserved for different categories under the Reservation for Women Act, candidates belonging to OBC, MOBC and ST(H) categories, though th ey had secured higher marks than the general category female candidates, have no t been included in the list of such general category women candidates. In other words, the better merit of the reserved category candidates under the quota rese rved under the Reservation for Women Act has been ignored and while more meritor ious reserved category candidates (female) have been included in the list for th e reserved categories, less meritorious general category female candidates have been included in the list of general category female candidates. The justificati on for this, according to Sri Choudhury, learned counsel for the respondents, is contained in the very language of the second proviso to Section 4 of the Reserv ation for Women Act. The said provision of the Act, according to Sri Choudhury, mandates that after reservation to the different reserved categories is provided as required under the Reservation for Women Act, the remaining posts are to be filled up by women candidates of unreserved category only.

32. The first question that has to be answered in the context of the aforesaid issue is whether the Court should go into it at all as because there is no female candidate among the petitioners in the present writ petition. The a bove question raises an issue of the width/extent of the power exercised by the Courts in the domain of public law. While it is clear, from the abundance of the precedents available on the point, that even in exercise of powers under Artic le 226 of the Constitution, relief should not be granted upon consideration of questions not before the Court either in the form of pleadings or the materials brought, the said precedents being on the point of grant of relief, it is our co nsidered view that irrespective of what relief should be given to the petitioner s in the present case, when ex-facie materials have come to the notice of the Co urt that a grave illegality has taken place which has the potential of causing prejudice to citizens not before the Court, it would be in public interest and i n the interest of justice to take up the issue and, thereafter, consider what re liefs are to be afforded. From the materials placed before the Court it is clear that in t 33. he present case, 31 posts out of the 131 advertised are available for being fill ed up by women candidates under the provisions of the Reservation for Women Act, 2005. Out of the 31 posts, 15 posts are required to be allotted to different re served category candidates as per the quota prescribed by the Reservation Act, 1 978 and the remaining 16 posts are to be filled up by general category candidate s. While preparing the list of OBC, MOC and ST(H) female candidates and the list for general category female candidates to be called for the interview, the Comm ission had sacrificed the principle of merit by including more meritorious OBC, MOBC and ST(H) female candidates in the list prepared for those particular speci es of reserved category candidates. In the process, less meritorious general cat egory female candidates have been included in the list prepared for such candida tes. In doing so, the Commission appears to have understood the provisions of th e second proviso to Section 4 of the Reservation for Women Act to be providing a reservation to the extent of 16 posts for unreserved female candidates. Obvious ly, there can be no reservation for unreserved candidates. It is again a settled principle of law that a reserved category candidate, if better placed in merit, will fill up a slot in the list of general/ unreserved category of candidates a nd such a person cannot be treated as belonging to a reserved category. Furtherm ore, the preparation of the list of female candidates in the above manner by the Commission definitely had its consequential effect on the OBC, MOBC and ST(H) c andidates who had filled up the slots in the list for such category of candidate s under the law of general reservation i.e. the Reservation Act, 1978. If more m eritorious OBC, MOBC and ST(H) candidates included in the list of female candida tes were entitled to be put in the list of general category female candidates, t he same would have an automatic effect on the consequential lists to be prepared . Commission of illegalities is, therefore, apparent. However, in the absence of any female candidate among the petitioners, we deem it appropriate not to issue any direction in this regard. However, keeping in mind the high constitutional status of the Commission, we deem it appropriate to leave the matter to the Publ ic Service Commission to suitably mend the situation by carrying out the necessa ry exercise that may be considered to be required in law in the light of our obs ervations above.

34. The writ petition shall stand disposed of in the above terms.