Judgment · High Court · 2012

(A.K.Goel, CJ) This appeal has been preferred against order of learned Single Judge quashing th e appointment of the appellant as Director, Archives. Advertisement dated 10.01.2002 was issued for appointment to the post in accorda nce with the Assam State Archives (Gazetted) Service Rules, 2000. The appellant and the writ petitioner were the two candidates. Both of them were held to be el igible by order of this Court dated 24.02.2006 passed in WP(C) No.5104 of 2006. The appellant was selected and recommended and the appointing authority made app ointment on 29.08.2006. In course of selection, an expert was nominated by the G overnment in accordance with para 2 of the instructions appended to the Assam Pu blic Service Commission (Limitation of Functions) Regulations, 1951, framed unde r Article 320(3) of the Constitution. The writ petitioner challenged the selection on the ground that the selection wa s ultra vires Rule 6 of the 2000 Rules inasmuch as due procedure for selection was not adhered to as no scheme existed. The writ petition was contested by the appellant as well as by the Commission by pointing out that the selection was in accordance with Rules. The official records though disclose an exercise made by the Commission Learned Single Judge allowed the writ petition. It was held that in absence of a n affidavit of the State Government it was not clear whether any scheme existed as contemplated under Rule 6(c) and the affidavit of the Commission was also sil ent in that regard. The norms of evaluation, aspects assessed and the benchmark applied were also not forthcoming. There was no objective basis for comparative evaluation mechanism. The operative finding is as follows : (cid:28)18. culminating in the recommendation of the respondent No.5 above the petitioner, i n absence of precise norms of comparative evaluation the aspects assessed and th e benchmark applied therefor are not forthcoming. In course of the arguments as well no endeavour has been made to furnish to this Court the objective basis of comparative evaluation of the candidates justifying the preference of respondent No.5 above the petitioner. The process involved being one envisaged by the Rule s pertaining to recruitment to a public office, the same obligatorily has not on ly to be in strict conformity therewith but also informed with certitude and tra nsparency. This is notwithstanding the rival claims of superiority of the partie s and the statistical reinforcements furnished in the instant proceeding. Though an endeavour has been made on behalf of the respondents to restrict the scrutin y of this Court, indicating at the constricted scope thereof, in the teeth of th e imperative of Rule 6(c) and on the failure of the respondents to either refer to or produce a scheme of selection prescribed by the Government in consultation of the Commission to administer the same, the exercise undertaken cannot irrefu tably be certified to be in accordance with the Rules. The materials on record t hus do not either demonstrate that the exercise undertaken had been in complianc e of the prescript of Rule 6(c) of the Rules or a set of precepts formulated by the Commission to administer the exercise in accordance therewith. In the above view of the matter, having regard to the nature of the challenge mounted by the petitioner, this Court is constrained to hold that the selection of the responde nt No.5 cannot be assuredly said to be in conformity with the Rules and, therefo re, is liable to be interfered with. Ordered accordingly. (cid:29) We have heard learned counsel for the parties. Learned counsel for the appellant submitted that having regard to the nature of the post to which appointment has been made and the qualification possessed by t he candidates, selection process which has been laid down and followed could not be held to be lacking transparency. It could also not be held that there was no scheme for selection. Government instructions have been duly issued which envis age appointment of an expert and such an expert was in fact appointed. The affi davit of the Commission shows that interview was duly conducted by the Chairman and four Members, apart form the expert which was an objective assessment of sui tability of comparative merit of the candidates. On these admitted facts, it co uld not be held that there was no objective basis for making selection or violat ion of statutory procedure. The relevant averments in the reply of the Commissio n are as follows : (cid:28)9. ion the deponent says that the commission has well established norms to scale th e merits of candidates. The commission prepared the select list on the basis of overall merit, experience and performance in the interview conducted with the he lp of expert deputed by the Govt. The period of experience claimed by the petiti oner including teaching experience, while making recommendation, the commission cannot take academic achievements as the sole basis especially in the post like Director of a Department with quite a big responsibility. (cid:29) That with regard to the statement made in paragraph 17 to the writ petit That with regard to the statement made in paragraphs 21, 22 & 23 to the (cid:28)12. writ petition the deponent says that the commission on the basis of overall meri t, experience and performance in the interview conducted with the help of expert deputed by the Govt. recommended a select list on 3.3.06 and duly sent it to th e Govt. vide no.56 APSC/DR-3741/2001-2002 dt. 3.3.06. Further the deponent reite rates and reaffirms the statement made in paragraph 9 to this affidavit. (cid:29) Learned counsel for the petitioner supports the view taken by learned Single Jud ge. Question for consideration whether in view of averments in the affidavit of the Commission, which have not been challenged, it could be held that there was no s cheme contemplated under Section 6(c) of the Rules and selection in absence ther eof was illegal. As noted above, there are statutory regulations i.e. 1951 Regulations under Arti cle 320 of the Constitution. There are also instructions issued by the Governmen t, which lay down the procedure for selection. What is contemplated under Rule 6 (c) is a scheme laying down procedure for selection. It will be appropriate to refer to Rule 6(c) of the Rules : (cid:28)6. fic Officer of the service shall be made on the basis of recommendation made by the Commission in accordance with the procedure hereinafter provided :- & & & & (c) The Commission shall make a selection in accordance with the scheme of s election, prescribed by the Government in consultation with the Commission. The Commission may hold such test or interview and undertake scrutiny of certificat Direct recruitment to the cadres of Director, Archivist, Scienti (1) es and other documents as may be considered necessary. (cid:29) Instructions appended to the 151 Regulations provides : (cid:28)2. all invite the appointing authority to deputy a technical expert to assist them. In making recruitment to technical or specialist posts the Commission sh In case of recruitment to other posts it shall be open- to the Commission to ask for the deputation of an adviser; (a) (b) to an appointing authority, if it feels the need for it to intimate to t he Commission that an adviser should be appointed to assist the Commission and t he reasons for doing so. In (a) above the appointing authority shall nominate a suitable adviser, and in (b) above, an adviser may be appointed only if the Commission agree to its need. (cid:29) It is clear and undisputed stand of the Commission that experience, overall meri t and performance in interview have been duly taken into account. The scheme app licable provides for assessment based on interview in which an expert is associa ted. Once it is so, it cannot be held that selection was de hors the rules or th at no transparent objective criterion was followed. Moreover, selection made by a duly constituted selection committee is not liable to be interfered with in a bsence of mala fides or arbitrariness. Reference may be made to law laid down i n M. V. THIMMAIAH AND ORS. VS. UNION PUBLIC SERVICE COMMISION AND ORS, (2008)2 SCC 119. We are, thus, unable to sustain the view taken by learned Single Judge in quashi ng the appointment of the appellant. The appeal is allowed. The impugned order is set aside. The writ petition is dis missed.