High Court
Case Details
WP(C) 3337/2011 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV) By way of this petition under article 226 of the Constitution of India, petition er seeks quashing of appointment orders of respondent Nos.4 and 5 dated 05-02-20 11 issued by the Commissioner and Secretary to the Government of Assam, Tourism Department (Annexures D1 and D2 respectively to the writ petition) appointing th e said respondents as Tourist Information Officer under the Tourism Department, Government of Assam. 2. efly noted. Facts of the case, as projected in the writ petition, may be bri 3. Petitioner is a graduate in arts from Mumbai University. She has also done her masters in Economics from Mumbai. Further, she is a post graduate diploma holder in Management and in Human Resources from Indira Gandhi National Open University (IGNOU). From 1997 to 2002, petitioner worked as a faculty memb er in Assam Institute of Management, Guwahati. Since September, 2002, petitioner has been working as Assistant Tourist Information Officer in the Assam Tourism Development Corporation Limited. Assam Public Service Commissioner (APSC) issued advertisement No 4. .4/2009 dated 16-07-2009 inviting applications from eligible candidates to fill up various posts including 6 posts of Tourist Information Officer under Tourism Department, Government of Assam. Of the 6 posts advertised, 4 were earmarked for the reserved categories and 2 posts were unreserved i.e. open for all categorie s. The educational qualifications prescribed for the post of Tourist Information Officer was graduation in arts, science or commerce from a recognized universit y or a 2 years post graduate degree or diploma in Tourism and Travel Management or a 3 years diploma in Hotel Management and Catering Technology from a recogniz ed / approved institute. 5. Petitioner being qualified for the post of Tourist Information O fficer, applied for the said post pursuant to the above advertisement. Interview was held on 03-09-2010 and the select list was published by the APSC on 01-01-2 011. 6. Petitioner’s name did not find place in the select list. She app lied for and obtained relevant information and documents under the Right to Info rmation Act, 2005. It could be seen therefrom that respondent Nos. 4 and 5 had s ecured 81 and 79 marks respectively out of 100 in the interview while the petiti oner secured 78 marks. Therefore, respondent Nos. 4 and 5 were selected and cons equently appointed. 7. Alleging that there was no proper assessment of the relative mer its of the candidates and consequently no fair selection, petitioner has questio ned the selection and appointment of respondent Nos. 4 and 5. 8. Petitioner has contended that though 2 marks were given to both respondent Nos.4 and 5 under the heading (cid:28)service experience (cid:29), no experience cer tificates were furnished by them. She has been given lesser marks under the head ing (cid:28)knowledge of subject (cid:29), though she has substantial knowledge of the subject as she is serving as Assistant Tourist Information Officer since 2002. Her acade mic credentials are far superior than respondent Nos. 4 and 5 and, therefore, mo re marks should have been allotted to her under the heading (cid:28)academic qualificat ion (cid:29). Petitioner has alleged that selection was not fair and was made arbitraril y. 9. Respondent Nos. 1 and 2 have not filed affidavit. Respondent No.3 i.e. APSC has filed counter affidavit. Stand tak 10. en is that 6 posts of Tourist Information Officer were advertised, out of which 4 posts were reserved for the reserved categories and 2 posts were open i.e. unr eserved. Altogether 389 candidates were interviewed by the APSC with the help of experts / advisors. 6 candidates were recommended in order of merit category wi se vide select list dated 31-12-2010. It is stated that the selection was made p urely on merit basis and marks were allotted under different heads like (cid:28)academi c qualification (cid:29), (cid:28)service experience (cid:29), (cid:28)subject knowledge (cid:29) and (cid:28)general bearing (cid:29) on the basis of norms / marking pattern fixed by the APSC for selection to the post of Tourist Information Officer. The allegation of extraneous consideration having influenced the selection is denied. Marks allotted under the heading (cid:28)su bject knowledge (cid:29) were awarded by the experts.
Legal Reasoning
Respondent No.4, who is one of the selected candidates and subse 11. quently appointed, has filed affidavit. He has contended that petitioner has cha llenged only a part of the selection in as much as she has challenged the select ion of only respondent Nos. 4 and 5, which is not permissible. On this ground al one writ petition should be dismissed. He has justified his selection as reflect ive of his better performance in the interview. He has contended that though he is a reserved category candidate belonging to Other Backward Class (OBC) but con sidering that he was ranked 1st in the selection, he was placed in the unreserve d category. Further stand taken is that marks were allotted by an expert selecti on committee and petitioner has not made any specific allegation against any mem ber of the selection committee. Writ petition is based only on apprehension expr essed by the petitioner that the selection process was vitiated by extraneous co nsideration. Nothing has been placed on record to substantiate her claim. He ha s stated that all relevant documents were submitted by him alongwith his applica tion including documents relating to service experience. Respondent No.4 has sta ted that following his appointment on 05-02-2011, he has joined in the post of T ourist Information Officer and is continuing as such. 12. Similar affidavit has been filed by respondent No.5. She has con tended that although 6 candidates were selected by the APSC, petitioner has made only 2 of the selected candidates, including herself, as respondents in the wri t petition, leaving out the remaining 4 successful candidates. Therefore, the wr it petition suffers from non-joinder of necessary party. While denying the alleg ation made by the petitioner against her selection, respondent No.5 has contende d that marks were allotted in the interview on the basis of norms / marking patt ern fixed by the APSC for selection to the post of Tourist Information Officer. She has denied the allegation that she had no service experience. According to h er, she had service experience which was considered by the authority. Petitioner has filed reply affidavit to the affidavit filed by r 13. espondent No.4. She has stated that she is aggrieved by the selection of two gen eral category candidates out of the 6 posts advertised, 4 of which were reserved for the reserved categories. Her challenge is confined to the selection of the two general category candidates and, therefore, only those two candidates have b een made respondents. Regarding claim of respondent No.4 as OBC category candida te, petitioner has contended that respondent No.4 did not furnish any document c laiming OBC status. Since he did not apply under OBC category, therefore, questi on of considering him as OBC candidate did not arise. It is further stated that respondent No.4 did not submit any document relating to service experience as wo uld be evident from the documents furnished to her under the Right to Informatio n Act, 2005. According to her, selection of respondent No.4 was not based on rel evant consideration. 14.
Legal Reasoning
Heard Mr. D.P. Chaliha, learned Senior Counsel assisted by Mr. U .P. Chaliha, learned Counsel for the petitioner. Also heard Ms. B. Dutta, learne d Government Advocate, Assam for respondent Nos.1 and 2, Mr. C. Baruah, learned Standing Counsel, APSC for respondent No.3, Mr. R.Dubey, learned Counsel for res pondent No.4 and Mr. G. Baishya, learned Counsel for respondent No.5. 15. Mr. D.P. Chaliha, learned Senior Counsel for the petitioner subm its that there was no proper and fair assessment of the relative merit of the pe titioner. Allotment of marks particularly under the headings (cid:28)subject knowledge (cid:29) and (cid:28)general bearing (cid:29) were most arbitrary. While petitioner’s better academic s tanding is reflected in her securing more marks than respondent Nos. 4 and 5 und er the heading (cid:28)academic qualification (cid:29), though the petitioner still has grievan ce regarding allotment of marks to respondents Nos. 4 and 5 under the said headi ng, the allotment of marks to the said respondents under the heading (cid:28)subject kn owledge (cid:29) and (cid:28)general bearing (cid:29) were totally arbitrary. Both the said respondents were allotted 100% marks in the two categories, being 20 out of 20 in the categ ory (cid:28)subject knowledge (cid:29) and 30 out of 30 in the category (cid:28)general bearing (cid:29) where as the petitioner was allotted 18 and 24 marks respectively in the two categorie s which ultimately affected the total marks obtained by the three candidates. Wh ile respondent No.4 secured a total of 81 marks out of 100, respondent No.5 secu red 79 and petitioner secured 78 marks. Contending that there was no justificati on for awarding such exceedingly high marks to respondent Nos. 4 and 5 in the tw o categories, learned Senior Counsel submits that the matter requires judicial s crutiny as it is apparent that the selection was not fair and proper. Ms. B. Dutta, learned Government Advocate has produced the part 16. of the record available with the Department. She submits that the selection was conducted by the APSC and the Government acted on the recommendation of the APSC . 17. Mr. C. Baruah, learned Standing Counsel, APSC submits that APSC had conducted the selection as per the norms prescribed by it. He submits that t he relative suitability of the candidates were fairly assessed by the interview board which also included a subject expert. He submits that the Court may not si t over the decision of the selection committee like an appellate authority and s ubstitute its own assessment for that of the selection committee. He has also pr oduced the relevant selection record for scrutiny of the Court. 18. Mr. R. Dubey and Mr. G. Baishya, learned Counsel for respondent Nos. 4 and 5 in their identical submissions have contended that the selection wa s for 6 posts of Tourist Information Officer. After the interview, APSC recommen ded 6 candidates for appointment against the 6 advertised vacancies. But the pet itioner has challenged the selection and appointment of only two of the candidat es i.e. respondent Nos. 4 and 5, leaving out the other selected candidates. When selection is challenged, all the selected candidates are necessary parties. The refore, the writ petition is hit by non-joinder of necessary parties and for suc h vital defect, the writ petition should be dismissed. Further submission is tha t petitioner had participated in the selection process and, therefore, it is not open for her to challenge the selection process after having been declared as u nsuccessful candidate. They have placed reliance on the decision of the Hon’ble Supreme Court in the case of Madan Lal and ors. -Vs- State of Jammu and Kashmir and Ors. reported in (1995) 3 SCC 486. They have also contended that selection o f respondent Nos.4 and 5 was justified and there is no reason to interfere with their selection. 19. In his reply, Mr. Chaliha submits that challenge in the writ pet ition is confined to selection of candidates under the unreserved category. Ther efore, impleading the remaining selected candidates under the reserved categorie s as respondents does not arise as petitioner being a general category candidate has no claim against the candidates selected under the reserved category. He su bmits that petitioner was subjected to an unfair and arbitrary treatment and she was illegally denied selection which may be looked into by this Court. 20. Submissions made have been considered. I have also perused the r ecord produced by both Ms. B.Dutta, learned Government Advocate and Mr. C. Barua h, learned Standing Counsel, APSC.
Decision
21. Since the private respondents have questioned the maintainabilit y of the writ petition on two counts, namely, for non-joinder of necessary parti es and on account of participating in the selection process and being an unsucce ssful candidate, the same may be attended to at the very outset. According to the said respondents, the advertisement was for 6 v 22. acancies. Selection was also made of 6 candidates. Petitioner, instead of making all the selected candidates parties to the proceeding, has only made the presen t two respondents parties. They have contended that since the petitioner has que stioned the fairness of the selection process, all the selected candidates shoul d have been made parties. Therefore, there is non-joinder of necessary parties f or which the Court should decline to answer the writ petition. This submission i s of no substance and deserves to be rejected. Though the advertisement was for 6 posts of Tourist Information Officer, 4 posts were ear-marked for the reserved category candidates. Only 2 of the posts were open for all categories. Though n ot expressly stated in the writ petition, it is evident from the documents on re cord and from the submissions made that petitioner is a general category candida te and had sought selection as such. Respondent Nos.4 and 5 are the two candidat es who were selected against the two un-reserved posts. In such circumstances, o nly the two candidates who were selected against the 2 unreserved posts i.e., re spondent Nos. 4 and 5 are necessary parties. The other 4 candidates, who belong to the reserved categories, would not be affected by the challenge as the petiti oner cannot get any relief vis-à-vis those candidates. The objection on this cou nt is accordingly rejected. 23. Coming to the next objection regarding petitioner being an unsuc cessful candidate and, therefore, the Court should not entertain the challenge t o the selection at the instance of an unsuccessful candidate, the Court is of th e view that the rule that a candidate who had unsuccessfully participated in a s election would not be entitled to challenge the same is not to be understood to be an inflexible rule or an absolute bar, without any exception. Application of this rule would depend on the fact situation prevailing in each case. In a recen t judgment dated 01-02-2013 passed in W.P.(C) No.67/2011 (Shri Bipul Dutta and O rs. -Vs- State of Assam and Ors.), this Court had examined the above question an d held as under :- (cid:28) 37. The decisions cited by the learned Counsel for the respondents lays down t he proposition that a candidate who had participated in the selection but was un successful, would not be entitled to challenge the same subsequently. The above proposition is based on the principle of estoppel by conduct or acquiescence. Or dinarily, a person who participated in the selection process without making any grievance about the selection process, whether it is not in accordance with the Rules or about some unfairness or anomaly in the selection process, would be est opped from complaining later on that the selection process was not in accordance with Rules or is vitiated by anomalies as he had taken a calculated chance in p articipating in the selection process and only after he found himself to have no t been selected, instituted the challenge. 38. But the question is whether this rule that a candidate who had unsuccessfull y participated in selection would not be entitled to challenge the same is an in flexible or absolute principle of law applicable in all situations without any e xception ? 39. In Raj Kumar (supra), the Apex Court held in the facts of that case that the principle of estoppel by conduct or acquiescence had no application as the Gove rnment had committed glaring illegalities in the selection procedure and the ent ire procedure was found to be illegal. 40. This Court in the case of Deboranjan Saikia and Ors. -Vs- State of Assam a nd Ors. reported in (2005) 3 GLR 659 was also confronted with a similar issue wh ere locus of the petitioners, who were unsuccessful candidates, to maintain the writ petition was questioned. This Court held that the rule that a candidate who had participated in a selection would not be entitled to challenge the same mus t be understood not to be an inflexible or absolute principle of law. It was hel d as under:- (cid:28)10. & &. It may be that a candidate who had knowingly participated in a selectio n cannot turn around at a later stage and challenge the award of marks given to him in the selection held or challenge the composition of the Selection Committe e, as the case may be. But this Court cannot understand the law to be one which debars a candidate, who had participated in a selection, from challenging the se lection process in all circumstances. Exception to the above principle could be in a situation where there has occurred large scale illegalities in the selectio n held or in a situation where the selection has been held in a manner which is not prescribed by the statute. The above principles can be carved out by this Co urt from a later decision of the Apex Court in Raj Kumar and others (supra). Tha t apart, the circumstances in which a candidate had appeared in the selection he ld must also be taken note of by the Court. In the present case the advertisemen t in question had clearly mentioned that the ad-hoc appointees in service, like the petitioners, must appear in the examination, if they desire that their servi ce should continue. Above all, the challenge made in the present writ applicatio n being with regard to the selection being held contrary to the provisions of th e Rules, I am of the view that the present is not a case where the petitioners a re aggrieved by the award of low marks or the petitioners have espoused such ind ividual grievances which should be considered by the Court as debarring them fro m challenging the selection already held (cid:29). 41. In the present case, petitioners had immediately approached this Court after short-listing of the candidates following the speed test on 28-12-2010. Petitio ners have challenged the selection as being contrary to the provisions of the Ru les as well as on the ground of unfairness / manipulation in the selection. Acco rding to the petitioners, the anomalies were noticed only during the selection a nd thereafter. Information furnished under the Right to Information Act, 2005 le nt weight to the challenge. Subsequent turn of events, namely, conducting scruti ny at the instance of the Department and observations of the scrutiny committee supported the case of the petitioners to a certain extent. The above rule, as ri ghtly held by this Court in Deboranjan (supra), is not to be understood to be an inflexible rule or an absolute bar. Application of the rule would, therefore, d epend upon the fact situation obtaining in each case. In view of above, Court is of the view that the challenge instituted by the petitioners is maintainable, w hich should be decided on merit. (cid:29) The decision relied upon by the respondents in Madan Lal and Ors 24. . (supra) stands on a different factual foundation. It was a case relating to se lection of Munsiffs in the State of Jammu and Kashmir by the Jammu and Kashmir P ublic Service Commission. The selection comprised of written examination and viv a-voce test. A sitting judge of the Jammu and Kashmir High Court was part of the interview board which conducted the viva-voce test. Petitioners in that case co ntended that they had fared well in the written test and also in the viva-voce t est but the results in the viva-voce test did not match their performance. So th e prayer made was for quashing of the viva-voce test and to make selection on th e basis of the written test alone or in the alternative, to conduct fresh viva-v oce test to assess the merit of the candidates objectively. It was in that conte xt that the Apex Court held that the petitioners took a chance to get themselves selected in the oral interview and only because they did not emerge successful, they filed the writ petition. Facts of the present case are altogether differen t as would be evident from the facts narrated above and from the discussions mad e in the succeeding paragraphs. In such circumstances, the Court is of the view that the challenge made by the petitioner requires a determination on merit. HSLC HSSLC Degree or 2 years PG degree or Diploma in Tourism and Travel Management The affidavit of the APSC indicates that the selection was confined to o 25. ral interview only. The interview was held for 100 marks. For academic qualifica tions, 45 marks were allotted, 2 marks for service experience and 3 marks for ad ditional qualification. Knowledge of the subject had 20 marks whereas 30 marks w ere allotted for general bearing. The allotment of marks were as follows :- 1. 2. 3. or 3 years diploma in Hotel Management and Catering Technology. 15 4. 5. 6. 7. TOTAL Service experience Additional qualification (relevant) --- Knowledge of the subject 30 --- General bearing 100 --- --- --- --- 20 15 15 --- --- 02 03 The affidavit of APSC further discloses that the Chairperson provided for gradin g of marks under the heading (cid:28)knowledge of subject (cid:29) for the expert advisor as un der :- Very good - 20 Good Average Fair - - - 18 16 14 As seen from the record, the marks obtained by the three candidates i.e., respo ndent Nos.4, 5 and the petitioner under the different headings were as under :- Academic Qualification Name General Bearing Emon Choudhury (Respt. No.4) Fatima Firdosha Akhtar (Respt. No.5) Total 29 Ms. Moitreyee Das (Petitioner) 34 Service Experience Subject Knowledge 2 27 2 20 2 18 30 20 24 81 30 78 79 26. Thus it is seen that under the heading (cid:28)service experience (cid:29) all the thre e contesting candidates secured 2 marks, which is the maximum mark allotted for the said heading. While under the heading (cid:28)knowledge of subject (cid:29), the two respon dents were awarded 100% marks i.e. 20 out of 20, petitioner was awarded 18. From the gradings noted above, it thus appear that the respondents were graded (cid:28)very good (cid:29) whereas the petitioner was graded (cid:28)good (cid:29). Again under the heading (cid:28)genera l bearing (cid:29) both the respondents were awarded 100 % marks i.e. 30 out of 30 where as petitioner was awarded 24 marks. This Court by order dated 08-10-2012 had sought clarification fr 27. om the APSC as to how marks are given under the heads (cid:28)general bearing (cid:29) and (cid:28)sub ject knowledge (cid:29). The APSC was also directed to produce the minutes of the select ion. No clarification has been placed before the Court as to how marks were give n under the heads (cid:28)general bearing (cid:29) and (cid:28)subject knowledge (cid:29). No minutes of the s election has also been produced. From the record, only thing that is available i s a recommendation of 6 candidates signed by the Chairperson and two other membe rs on 31-12-2010. The recommendation is accompanied by a (cid:28)merit list (cid:29) of 46 cand idates signed by the Under Secretary on 30-12-2010. 28. Though the Chairman had issued an advisors grading for the exper t indicating the equivalent marks for each grading to be awarded under the headi ng (cid:28)knowledge of subject (cid:29), no such grading or criteria was mentioned for award o f marks under the heading (cid:28)general bearing (cid:29). There is no indicative guideline or atleast nothing has been placed before the Court as to how assessment and conse quential award of marks were to be made under the heading (cid:28)general bearing (cid:29). In a selection which is entirely based on interview, 45 marks were allotted for aca demic qualifications, 3 marks for relevant additional qualifications and 2 marks for service experience. Thus, out of 100 marks, there was objective criteria fo r allotment of 50 marks. Rest 50 marks were to be awarded for (cid:28)knowledge of the subject (cid:29) (20 marks) and for (cid:28)general bearing (cid:29) (30 marks). In respect of (cid:28)knowled ge of subject (cid:29), some gradings were mentioned with corresponding marks. But there was no such grading or objective criteria regarding the 30 marks for (cid:28)general b earing (cid:29). This 50 marks, out of which there was no guideline at all for awarding 30 marks, played the most decisive role in the selection. A candidate may secure 50 marks out of 50 in the academic segment of the interview yet he may still fa il the selection test on account of securing comparatively low marks in respect of the remaining 50 marks under the headings (cid:28)knowledge of subject (cid:29) and (cid:28)general bearing (cid:29). This is precisely what has happened in the present case. Both the res pondents secured cent percent marks in (cid:28)general bearing (cid:29) and (cid:28)knowledge of subje ct (cid:29) i.e. 50 out of 50 whereas petitioner secured 18 and 24 respectively i.e. 42 out of 50, though she had secured more marks in the academic segment. This turne d out to be most crucial considering the difference in the total marks of the th ree candidates, the difference between the petitioner and respondent No.5 being only 1 mark. 29. Coming to the record, it is seen that the expert graded the peti tioner as (cid:28)good (cid:29), respondent No.4 as (cid:28)very good (cid:29) and respondent No.5 (cid:28)v. good (cid:29) u nder the heading (cid:28)knowledge of subject (cid:29). In the case of respondent No.5, though she has been graded (cid:28)v.good (cid:29) meaning (cid:28)very good (cid:29), the way the word (cid:28)v (cid:29) has been written, it is clearly suggestive of subsequent insertion. As already noticed ab ove, a change of grading from (cid:28)good (cid:29) to (cid:28)very good (cid:29) would result in additional 2 marks, which is most crucial considering the ultimate difference in marks betwe en petitioner and respondent No.5 being only 1 mark. 30. From a perusal of the original mark-sheets of interview, it is s een that there is clear overwriting in the marks allotted to the petitioner unde r the heading (cid:28)general bearing (cid:29) and consequently in the total marks. It clearly transpires that the figure 4 has been overwritten over the figure 5 to make it 2 4 from 25. Consequently, there is overwriting in the figure 8 in the column for total marks to make it 78. There is no initial of any member of the interview bo ard below the above 2 figures overwritten. In case of marks allotted to responde nt No.5, it is also seen that there is clear overwriting in the marks awarded un der both the heading (cid:28)subject knowledge (cid:29) and (cid:28)general bearing (cid:29) and consequently in the total marks allotted. The overwriting is more pronounced in the marks all otted under the heading (cid:28)subject knowledge (cid:29) in as much as from 18 it was changed to 20, thereby changing the total marks from 77 to 79. These changes were most crucial to the final outcome as the difference in total marks obtained by respon dent No.5 and the petitioner is only 1 mark. Here also there is no initial of th e expert below such overwriting. However, there is no such overwriting in the ma rkings of respondent No.4 though as already noticed above, he was also awarded 1 00% marks under both the headings. 31. Upto this stage, two things are clearly discernible from the rec ord. Firstly, awarding of 100% marks to the respondent Nos. 4 and 5 under the he adings (cid:28)subject knowledge (cid:29) and (cid:28)general bearing (cid:29) without any guidelines. This ma y justifiably raise reasonable apprehension in the minds of the candidates about the fairness of the assessment carried out by the APSC. Being a constitutional body, APSC has the solemn duty to conduct examinations for recruitment to public services in a fair and impartial manner. The selection must not only be fair an d impartial but must be seen to be so. Public trust and confidence in the fairne ss and impartiality of selection is the essence of the selection process for rec ruitment to public employment. If the people lose faith in the fairness and impa rtiality in the functioning of APSC, whose credibility has already been eroded c onsiderably in recent times for various reasons, it will deal a body blow to the system of governance in the State itself. [See the observations of this Court i n Ratul Kumar Das & Ors. -Vs- State of Assam & Ors. reported in 2009 (4) GLT 648 ]. In a selection which is based entirely on oral interview, allotment of 30 mar ks under the heading (cid:28)general bearing (cid:29) out of a total of 100 marks, that too, wi thout laying down any guideline or instruction as to how marks under the said he ading are to be awarded, appears to be disproportionately high having a decisive bearing on the final outcome of the selection, and may require re-consideration by the APSC. This is an aspect which the Court hopes APSC will consider in all its seriousness. Secondly, the manner in which marks have been overwritten in re spect of petitioner and respondent No.5 which led to change in the final result raises grave doubt about the fairness in the allotment of marks to the said 2 ca ndidates. On the face of it, any reasonable person will have grave suspicion abo ut the bonafides of the exercise. If selection is carried out in this manner, co upled with the observations made above, it will completely erode the faith of th e people in the APSC. But suspicion howsoever strong cannot take the place of ha rd evidence and, therefore, the Court would restrain itself from interfering wit h the selection on this ground. 32. Coming to the files containing the applications of respondent No s. 4 and 5, it is seen that column 13 of the application form related to experie nce, particulars of which were required to be furnished. Supporting documents we re also required to be attached. In case of both respondent Nos.4 and 5, the sai d column had not been filled up. In the details of enclosures, respondent No.4 h ad disclosed enclosing of the following certificates :- (1) (2) (3) (4) OBC Certificate Birth Certificate Character Certificate - 2 Certificate of sports A perusal of the file also does not show furnishing of any document regarding se rvice experience of respondent No.4. Similarly, respondent No.5 had listed the f ollowing documents as enclosed with the application form:- (1) Original treasury challan (2) (3) (4) (5) (6) (7) (8) Pass certificate of HSLC Examination Pass certificate of HS Examination Pass certificate of BA Examination Pass certificate of MTA Examination Mark-sheets of HSLC to MTA Examination Two signed passport photographs Two character certificates. A perusal of the file containing her application form and documents also does no t show submission of any such certificate of service experience. 33. Thus, both respondent Nos. 4 and 5 did not claim any service exp erience in their application forms and also did not enclose any document indicat ing any experience in service. Though they have stated in their affidavits that they had service experience, no such document has been enclosed by the said resp ondents to their affidavits filed in the present proceeding. But as already noti ced above, both respondent Nos. 4 and 5 were awarded 2 marks for (cid:28)service experi ence (cid:29), which is the maximum mark fixed under the said heading. This award of 2 m arks under the heading (cid:28)service experience (cid:29) to both respondent Nos. 4 and 5 was totally unjustified and was awarded without any basis as the said respondents di d not deserve the said 2 marks. On the other hand, petitioner is working as an A ssistant Tourist Information Officer under the Assam Tourism Development Corpora tion Limited, a Government of Assam Undertaking since 2002. The answering respon dent, have admitted this fact by offering no comments in their counter affidavit s to this assertion of fact by the petitioner. Therefore, awarding of 2 marks to the petitioner is justified. Since 2 marks were unjustifiaby given to responden t Nos. 4 and 5, the same is required to be deleted from the total marks awarded to them. After deduction of the said marks, the following position emerges:- 1. 2. 3. Respondent No.4 (Emon Choudhury) Petitioner (Moitreyee Das) Respondent No.5 (Fatima Firdosha Akhtar) 81-2 = 79 78 79-2 = 77 34. cured lesser marks of 77 as against 78 secured by the petitioner. Thus, selection of respondent No.5 is unjustified, she having se 35. Therefore, selection of respondent No.5 is declared as illegal. Consequently, her appointment to the post of Tourist Information Officer becomes legally untenable. Accordingly, both her selection and appointment are set asid e and quashed. 36. Since petitioner had secured more marks than respondent No.5, he r name would now stand included in the list of recommended candidates in place o f respondent No.5. In view thereof, respondent No.1 shall now issue the conseque ntial appointment order of the petitioner within a period of 3 weeks from today. 37. While intervening in the matter in the above manner, the Court i s fully conscious of its limitations while subjecting a selection process to jud icial scrutiny in exercise of the power of judicial review. While it is true tha t the Court is not to act as an appellate authority over the decision of the sel ection committee, but at the same time, it cannot also shut its eyes when glarin g illegalities are apparent on the face of the record. 38. Writ petition is allowed. For the manner in which the APSC had conducted itself, cost of R 39. s. 25,000/- is imposed on the APSC, which shall be paid to the petitioner within a period of 3 weeks from today. 40. ruah respectively. Original records are returned back to Ms. B. Dutta and Mr. C. Ba