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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
WP(C) 3220 of 2010
Sri Dulal Deka Son of Sri Tarun Ch. Deka Resident of Dwigunpur, P.O. Soneswar, P.S. Kamalpur, District-Kamrup (Assam) … Petitioners. VERSUS
1. The Assam Public Service Commission, represented by its Chairperson, Jawahar Nagar, Khanapara, Guwahati- 22.
2. The Secretary to the Assam Public Service Commission, Jawahar Nagar, Khanapara, Guwahati-22.
3. The Commissioner & Secretary to the Sports and Welfare Department, Dispur, Guwahati-6.
4. Smt. Juri Devi, Jagirod Railway High School, P.O. Jagirod, Dist.-Morigaon …Respondents.
BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA
For the petitioner : Mr. U. Bhuiyan, Sr. Advocate. Mr. B. Goswami, Advocate.
For the Respondent : Mr. T.C. Chutia, Advocate for respondent No. 4 Mr. A.K. Bhuiyan, SC, APSC
Date of hearing : 7.1.2011, 2.2.2011, 17.2.2011, 10.3.2011, 16.6.2011 and 21.7.2011
Date of judgment : 07.09.2011
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JUDGMENT AND ORDER (CAV)
THE CHALLENGE
The challenge in this writ petition is the selection of the respondent No, 4 for the post of Assistant Director (Yoga) under the Sports & Youth Welfare Department, Government of Assam. The selection was conducted by the Assam Public Service Commission
(APSC) pursuant to the advertisement bearing No. 3/209 dated
12.5.2009. The selection was conducted on 4.3.2010.
THE ADVERTISEMENT
2. Annexure-V to the writ petition is the advertisement. Since the whole controversy centers around the said advertisement with the allegation that the respondent No. 4 lacked the prescribed qualification in yoga and thus could not have been called for the selection, for a ready reference the same is quoted below:
ASSAM PUBLIC SERVICE COMMISSION
Advt. No. 03/2009
NO. 253 PSC/DR 5/1/2000-2001, dated Guwahati, the 12th May, 2009
1 (One) POST OF ASSISTANT DIRECTOR (YOGA) UNDER SPORTS & YOUTH WELFARE DEPARTMENT (Un reserved)
SCALE OF PAY: Rs. 4120/- to Rs. 9725/- P.M. plus other allowances as admissible under the rules.
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AGE: 21 yrs to 38 yrs. As on 01.01.2009. The upper age limit is relaxable by 5 years in case of SC/ST candidates. EDUCATIONAL QUALIFICATION: A candidate must be a Degree holder in either Arts/Science/Commerce from a recognized University and must have a Degree or Diploma in Yoga from a Government/University Grants Commission recognized Physical Education Institute.”
CASE OF THE WRIT PETITIONER
3. While referring to the aforesaid advertisement and the response shown by way of offering candidature, the petitioner has questioned the very acceptance of the candidature of the respondent No. 4 on the ground of not being qualified and eligible to offer candidature in terms of the said advertisement. According to the petitioner, the respondent No. 4, while responding to the advertisement and submitting application for the post of Assistant
Director (Yoga) had only submitted a certificate of three months certificate course in Yoga and that too from unrecognized University of Maharastra under the name and style of Shree Hanuman
Vyayam Prasarak Mandal’s Yoga Nisargopachar Kendra,
Amravati. According to the petitioner, this three months course certificate did not conform to the requirement of degree or diploma in Yoga from a Government/UGC recognized
Physical Education Institute.
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4. So far as the qualifications of petitioner is concerned, he is BA with Major in Political Science and has completed 15 months Yoga
Diploma course from Umachal Yoga Mahavidyalaya. According to him, the said Mahavidyalaya is a Government recognized Yoga
Institute and more than 25 diploma holders of the said Institute have been appointed by the Government of Assam in its various departments on regular basis. The petitioner has also undergone three years Yoga Therapy Degree course in Sankardeva
Yogashrama College Hospital Research Center at Guwahati, which is said to be Government recognized college. In the said course, the petitioner secured first division.
5. After filing of the writ petition with the aforesaid pleas, the petitioner filed an additional affidavit bringing on record his application dated 19.5.2010 to the State Information Commission,
Assam under the Right To Information Act, 2005, by which he sought for information in respect of qualification and eligibility of the respondent No. 4 for the said post of Assistant Director (Yoga) that was advertised by APSC as aforesaid. The petitioner has also brought on record the letter dated 23.6.2010 (Annexure-IX) addressed to him by the Under Secretary to the Government of
Assam in the Sports & Youth Welfare Department, by which, he was furnished with the information sought for in respect of selection of the respondent No. 4 by the APSC as Assistant Director (Yoga).
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BY the said letter, the information relating to educational qualification of the respondent No. 4 along with the documents including one Yoga certificate in support of the candidature of the respondent No. 4 was furnished. For a ready reference, the said letter dated 23.6.2010 is reproduced below:
“GOVERNMENT OF ASSAM SPORTS & YOUTH WELFARE DEPARTMENT DISPUR:: GUWAHATI-6
NO.SYW.109/2005/Pt.III/50, Dated, Dispur the 23rd June’2010 From: Shri D.K. Das Under Secretary to the Govt. of Assam To: Shri Dulal Deka S/o Shri Tarun Deka Vill-Digunpar P.O. Soneswar Dist.-Kamrup, Assam
Sub: Submission of information under the Right to Information Act, 2005.
Ref: Your application dated 19.5.2010.
Sir,
With reference to your application dtd. 19.5.2010, I am directed to furnish herewith the required information under the RTI Act, 2005 in respect of selection of the post of Asstt. Director (Yoga) by the APSC to Mrs. Juri Devi.
No. 1: - The Educational Qualification of Mrs. Juri Devi and other documents are furnish below:- (a) Degree certificate -- 1 (one) photo copy (b) Yoga certificate -- 1 (one) – do - (c) Degree college of physical education’s certificate-- 1 (one) – do - (d) Degree college of physical education’s provisional certificate-- 1 (one) – do - (e) B.P. Ed.’s marksheet -- 1 (one) - do – (f) APSC’s Advertisement -- 1 (one) - do –
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(g) APSC’s select list -- 1 (one) - do –
Yours faithfully
Enclo: Certificates, copies & other documents
Under Secretary to the Govt. of Assam Sports & Youth Welfare Department 23.6.2010”
6. As indicated in the aforesaid letter, the documents, in support of the candidature of the respondent No. 4 were (a) degree certificate (one copy); (b) Yoga certificate (one copy); (c) Degree, college of Physical Education Certificate (one copy); (d) Degree,
College of Physical Education’s certificate (one copy); (e) D.P. Edn.
Marksheet (one copy); (f) APSC’s advertisement (one copy) and
(G) APSC’s select list (one copy).
7. The certificate in respect of which the present proceeding is concerned, i.e. degree or diploma in Yoga from Government/UGC recognized Physical Education Institute is not found in the documents furnished by the said letter dated 23.6.2010. The only certificate in that respect furnished was the three months certificate course issued by Shree Hanuman Vyayam Prasarak Mandal’s
Yoga, Nisargopachar Kendra, Amravati. The documents supplied did not contain any diploma or degree certificate in Yoga.
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8. It is in the aforesaid back ground, the specific plea of the petitioner is that the respondent No. 4 was illegally selected by the
APSC for extraneous consideration, although, she did not conform to the requirement of eligibility criteria one of which was degree or diploma in Yoga from a Government/UGC recognized
Physical Education Institute.
DEFENCE PLEAS
9. Number of affidavits and counter affidavits have been filed by the parties including the APSC. In the affidavits filed by the respondent No. 4 and the APSC, the stand taken is that the respondent No. 4 is qualified to hold the post of Assistant
Director (Yoga) and that along with her application, she had submitted the requisite certificate, although the same was not indicated in the application form itself.
PLEA OF THE RESPONDENT NO. 4
10. While dealing with the plea of the petitioner that she is not qualified to get selection for the post of Assistant Director
(Yoga), the respondent No. 4 has stated about her present assignment as Physical Instructor under the Director of Sports &
Youth Welfare, Government of Assam and her posting at Morigaon under the District Sports Officer, Morigaon. According to the
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respondent No. 4, she has proficiency in different subjects as well as in Yoga, about which she has indicated in paragraph 6 of her counter affidavit. One of the documents mentioned therein is the
Yoga and Naturopathy Diploma Course certificate, 2008, she had allegedly obtained from Pachim Mangaldoi Yoga
Mahavidyalaya, purportedly recognized and approved by
Government of India, Health & Family Welfare Department.
11. Since the respondent No. 4 has referred to the aforesaid certificate in support of her eligibility (Annexure-16), the same is quoted below:
“PASCHIM MANGALDOI YOGA MAHAVIDYALAYA HOSPITAL & RESEARCH CENTRE MANGALDOI YOGASHRAM SAMITI Regd. No. RS/857 of 1978-1979 Approved by Govt. of India Health & Family Welfare
Certified that Shri/Mrs. Juri Devi son/daughter of Shri Anil Chandra Sharma an inhabitant of Village- Narakasur, P.O. Kahilipara, P.S. Dispur Dist-Kamrup (Assam) was admitted in Yoga Mahavidyalaya as a regular student of one year Yoga & Naturopathy Diploma Course. He/She has come out successful in Kaya-Yogi or E.P.V.T. (Entrance of Physical Yoga Training).
Principal 13.11.08 (Yogacharya-D.P. Sharma) Paschim Mangaldoi Yoga Mahavidyalaya Hospital & Research Centre Vill & P.O. Chamatiapara Mangaldoi-Darrang (Assam) Pin- 784147 Date: 13.11.2008”
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12. According to the respondent No. 4, she had submitted her application through proper channel enclosing all the required documents including the aforesaid certificate. In due course, the eligible candidates were invited for selection by the APSC and she was selected. Counter attacking the petitioner on the point of eligibility, the respondent No. 4 has contended that the Yoga certificates produced by the petitioner are not in conformity with the requirement of the advertisement. According to her, she not only possesses the three months certificate course in Yoga but also possesses the diploma in Yoga from the said institute at
Mangaldoi. According to her, she was a regular student of the said institute for the session 2007-08 and completed final examination in the month of February, 2008 and got 1st division.
13. While pleading that she possesses the required qualification in
Yoga in terms of the advertisement, the respondent No. 4 has made the following statement in paragraph 12 of the counter affidavit.
“The deponent begs to state the Assistant Director of Sports & Youth Welfare, Assam asked the petitioner to submit copies of Degree and Diploma which was submitted to the APSC for the said post. The petitioner submitted the same to the Asstt. Director as directed.”
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PLEA OF THE APSC
14. The APSC in its affidavit filed through its in-charge
Secretary has contended that the petitioner did not conform to the requirement of the advertisement and that the 15 months Yoga diploma course, he had undergone in the particular institute did not conform to the requirement of the advertisement. According to the
APSC, Umachal Yoga Mahavidyalaya from which the petitioner has obtained his diploma is not a recognized institute of the
Government or UGC.
15. As regards the qualification of the respondent No. 4, it has been stated in paragraph-13, 18 and 21 of the counter affidavit that she has been selected on the basis of the documents submitted by her at the time of interview. For a ready reference, paragraphs-
13, 18 and 21 of the counter affidavit are reproduced below:
“13. That with regard to the statement made in paragraph 12, the answering respondent specifically denies the correctness of the statement made in the aforesaid paragraph. The answering respondent No. 4 has been selected on the basis of all the documents submitted by her at the time of the interview. The documents were duly verified by the expert appointed for the said selection process. In selection of the candidate, academic qualifications, training qualifications, service experience, marks given by the expert and marks obtained in the general interview has been taken into consideration. The selected candidate submitted all valid documents.”
“18. That with regard to the statement made in paragraph 19, the respondent No. 4, Smti Juri
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Devi is not at all eligible for the post of the Assistant Director (Yoga) under the Department of Sports and Youth Welfare, Government of Assam, is specifically denied by the answering respondent. Further with regard to the statement that the respondent No. 4 has obtained a certificate from an unrecognized Yoga institution of Maharastra that to with mentioning of a three months certificate course in Yoga Education is specifically denied by the answering respondent.”
21. The answering respondent further affirms and reiterates that the whole selection process has been done in a transparent and a fair manner. The requirements as per the advertisement i.e. degree or diploma in Yoga from a government/University Grants Commission recognized physical education institute was taken into consideration. Further academic qualification, additional qualification, training qualification relevant to the subject, service experiences, marks given by the expert and marks obtained in the interview were duly taken in consideration to select the selected candidate.”
16. In the additional affidavit-in-opposition filed by the
APSC, it has been stated that the above quoted certificate produced by the respondent No. 4 was taken into consideration during the process of the selection. It has been stated that by necessary implication it should be understood that the said certificate was accepted as a certificate from an institution awarding one-year diploma in Yoga approved/recognized by
Government/UGC. In paragraph 6 of the said affidavit, it has been stated that as per the records, the respondent No. 4 had submitted the following documents.
“a) Pass certificate of HSLC examination in 2nd division during the year 1994 and its mark sheet.
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b) Pass certificate of HSSLC examination in 2nd division during the year 1996 and its mark sheet.
c) Pass certificate of TDC (Arts) in 3rd division during the year 2000 and its mark sheet.
d) Pass certificate of BPED in 1st division during the year 2006.
e) Pass certificate of 3 (three) months certificate course in 1st division during the year 2006.
f) Pass certificate 1 (one) year diploma course in Yoga from Paschim Mangaldoi Yoga Mahavidyalaya in 1st division during the year 2008 and its mark sheet.
g) Age proof certificate.”
REPLY AFFIDAVIT OF THE PETITIONER
17. As against the aforesaid pleas of the respondents, the petitioner in his reply affidavit has contended that the certificate of diploma and degree obtained by him are of recognized institutes and that the plea of the APSC and the respondent No. 4 that the said institutes are not recognized is not tenable. In this connection, he has brought on record the names of the appointees in the State
Government departments who obtained Yoga certificate/diploma from the said institutes particularly Umachal Yoga
Mahavidyalaya. Dealing with the plea of the respondent No. 4 that she obtained the diploma in Yoga from the particular institute at Mangaldoi, the petitioner has contended that the certificate is the
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product of manipulation inasmuch as no such certificate had accompanied the application submitted by the respondent No. 4.
The petitioner has also brought on record the information and documents he has received from the Pachim Mangaldoi Yogic
Hospital in respect of the certificate obtained by the respondent
No. 4 from there.
18. As per the information furnished to the petitioner by the said institute vide letter dated 7.2.2011, the answer scripts pertaining to terminal, half yearly and final examination are not kept in the office after one year meaning thereby that the said answer scripts are not available for perusal. In clause 6 of the letter admitting that the course of study on Yoga is not recognized by the
Government or University, it has been stated thus:
“No course of yoga and nature cure are recognized by any Government or University. The Central Yoga And Nature Cure Research Centre under the Government of India, Ministry of Health and Family Welfare has extended grant by connecting this course with the Yoga and Nature Hospital.” (Translated to English from Assamese)
WHAT TRANSPIRED DURING THE COURSE OF HEARING AND RESPONSE OF THE APSC
18. During the course of hearing on 17.2.2011, learned counsel representing the APSC produced the documents/records pertaining to the selection which find mention in the order passed on that day. Having regard to the relevance of the said documents
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and the order passed on that day i.e. 17.2.2011, for a ready reference, the same is quoted below:
“17.02.2011
Heard learned counsel for the parties at some length. Mr. B. Goswami, learned counsel for the petitioner submits that although he has sought for information through RTI application regarding the purported course undertaken by the respondent No.4 in Paschim Mangaldoi Yuga Mahavidyalaya, the petitioner is yet to be furnished with the required information by the said Institute. However, he submits that the petitioner is expecting all the details during the course of the day. Mr. A.K. Bhuyan, learned Standing Counsel, APSC has produced the documents pertaining to selection, which are described below :-
1st. A typed sheet naming the post with scale of pay, age and educational qualification required for the post.
2nd. Statement of applications received for the post including the applications made by the petitioner and the respondent No.4. Although the statement was originally prepared by manual type writing but there is handwritten insertion against some names regarding their qualification. Such insertion can be found against the name of the respondent No.4 also. The insertion is “Dip in Yuga, Paschim Mangaldoi Yuga Mahavidyalaya ( 1 yr) 1/08”. The statement comprises of 7 (seven) sheets.
3rd. This document is replica of the first document.
4th. This document/sheet of paper is described as merit list for recruitment to the post of Assistant Director (Yuga)
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containing the marks secured by the candidates and is signed by U/Secy / Asstt. Controller of Examination with the endorsement “Prepared and checked by me”.
5th. This document is said to be the minutes of selection recommending the respondent No.4 for the post. Although in this minutes, there are 5 (five) members including the Chairperson, APSC but only 3 (three) members have signed the minutes leaving aside other 2 (two) members.
6th. Photocopy of the document signed by the Chairperson indicating the total marks awardable under different heads, such as, HSLC, HSSLC, Degree, Degree of Diploma in Yuga, Service experience, additional qualification, general bearing and knowledge of the subject. Total marks awardable are 10, 10, 10, 15, 2, 3, 30 & 20 respectively.
7th. This is yet another photocopy of a document signed by the Chairperson indicating the marks to be awarded under various categories, such as, Very Good (20), Good (18), Average (16) and Fair (14).
8th. This is the original document containing the list of the candidates called for interview for the post held on 4.3.2010, signed by one Shri Aditya Kumar Talukdar, categorising the candidates as fair, average, good, etc.
9th. Original mark sheets showing the awarding of marks to different candidates. Each one of the pages bears the illegible initial / signature of some body
Above are the documents on the basis of which the selection has been conducted recommending the respondent No.4 for the post
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of Assistant Director (Yuga). Nowhere in the documents, any involvement of any one of the members of the APSC is discernible except the aforesaid purported minutes of the Selection Committee, in which out of 5 (five) members, only 3 (three) have signed. By the said minutes, the respondent No.4 has been recommended on merit. However, no reason is discernible. Interestingly, there is no specific date of the minutes of the selection. While the Chairperson and another member have signed the minutes on 15.3.2010, the 3rd member has signed the minutes on 10.3.2010. In view of the above and as prayed for by the learned Standing Counsel, APSC, stands adjourned to 1.3.2011 enabling the APSC to clarify the position about the methodology and procedure adopted towards making the selection. As indicated above, the records do not throw any light as to on what basis, selection was made. It will be pertinent to mention here that the respondent No.4 has been shown awarded 30 out of 30 under the head “General Bearing”. In the mean time, the petitioner may also produce the information received through the RTI. Registry while keeping the aforesaid original records under safe custody in a sealed envelope, may furnish the photocopies of the said documents to the learned Standing Counsel, APSC. Let a copy of this order be furnished to the learned Standing Counsel, APSC, for his necessary follow up action.”
19. In response of the said order, the APSC has filed an additional affidavit on 2.3.2011, in which, it has been stated that at the first level of scrutiny of applications received by the Commission, the applications are scrutinized and name, address, community, age, qualification etc. are typed in the statement of applications.
Subsequent thereto, the applications along with documents
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accompanied, are scrutinized thoroughly in terms of the advertisement and the applicants possessing the minimum qualification as per the advertisement are considered by the
Commission to be called for interview and accordingly call letters are issued.
20. As regards the queries made as to how there could be insertion by hand in the statement recording particulars of the applicants, the APSC in its said affidavit dated 2.3.2011 has stated that the respondent No. 4 did not mention in her application about her diploma in Yoga, but her application was accompanied by the certificate of diploma in Yoga.
According to the APSC, the certificate pertaining to diploma in Yoga was found along with her application and the same having been accepted, it was inserted by hand and she was called for the interview.
20. In the aforesaid affidavit, the APSC has stated that one
Sri R.K. Paul, Member, APSC was the Chairman of the Selection
Board and one Sri Aditya Kumar Talukdar was the expert/advisor for the interview of the candidates and that the interview was held on 4.3.2010 in which 8 candidates appeared.
Before the interview, marksheet was prepared by the concerned section regarding the academic marks of the candidates on the basis of their academic certificates. In paragraph 13 of the said
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affidavit, while stating that the Commission recommended the respondent No. 4 and the said recommendation was signed by three members out of five APSC members, it has been stated that the same duly conformed to the requisite quorum.
21. In another affidavit filed by the APSC on 28.3.2011, division of total 100 marks for the selection has been indicated, which are as follows:
1. HSLC - 10 marks 2. HSSLC - 10 marks 3. Degree/Bachelor - 10 marks 4. Degree or diploma in yoga - 15 marks 5. Service/experience - 2 marks 6. Additional qualification - 3 marks 7. General bearing - 30 marks 8. Knowledge of the Subject - 20 marks
22. As regards the General Bearing carrying 30 marks, the stand taken in the affidavit is that the Member or Chairman of the
Commission, who happens to be the Chairman of the Interview
Board gives marks under the said head as per his discretion based on the performance of the candidates in the interview.
23. The APSC has filed another affidavit on 20.7.2011 responding to the following queries made by the Court.
(i) Whether there is any minutes of the selection? (ii) Why Fair is below Average? (iii) Whether there is any document to show that Mr. R.K. Paul was appointed as the Chairman of the Board?
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24. In the affidavit, the APSC has responded to the said queries by stating that there is only one minutes of the selection as furnished to the Court. As regards FAIR being placed below
AVERAGE, it has been stated that same was the practice prevalent in the APSC till framing of APSC (Procedure and Conduct of
Business) Rules, 2010 which came into force on 2.8.2010.
25. As regards appointment of Sri R.K. Paul as the Chairman of the Selection Board, the APSC has annexed the photocopy of the documents marked confidential, which reads as follows:
“CONFIDENTIAL
ASSAM PUBLIC SERVICE COMMISSION The Sl. Nos. of candidates allotted to the Hon’ble Chairman/Members of the Commission for interview on 4.3.2010 are shown against each of them.
1) Dr. (Mrs.) G. Bashnapatri - 2, 3, 4 Expert Chairperson Shri Neel Paban Barua Sourav Nagar, Beltola (Post of Lect. In Sculpture) Members:-
2) Md. S.H. Saikia
3) Shri B.N. Das 1 to 55 Dr. Paramananda Rajbangshi, Prof. Pragjyotish College (Post. – Lect. Assamese)
4) R.K. Paul 1 to 13 Shri Aditya Talukdar Retd. Asstt. Director, Post-Asstt. Director (Yoga)
5. Dr. S. Nath 1, 2, 3 Smt. Mousumi Dutta Pathak Prof. Arya Vidya Pith College, HOD, History, (Post. Lect. In Cultural History)
Marksheet may be handed over in a sealed cover to me for tabulation.
Chairperson Assam Public Service Commission Khanapara, Ghy-22.” WP(C) No. 3220/2010 Page 19 of 47 20
ARGUMENTS
26. Mr. U. Bhuiyan, learned Sr. Counsel along with Mr. B.
Goswami, learned counsel for the petitioner during the course of hearing submitted that the materials on record would reveal that the candidature of the respondent NO. 4 was accepted with the sole purpose of selecting her for the post although as per the documents submitted by her along with her application, she did not conform to the requirement of the eligibility as laid down in the advertisement.
Referring to the information and documents obtained by the petitioner through RTI Act, he submitted that had it been a case of submission of the particular certificate purportedly issued by the
Institute at Mangaldoi, the same would have found mention in the information furnished to the petitioner. As regards eligibility of the petitioner to apply for the post, he submitted that the candidature of the petitioner having been accepted by the APSC and he having been interviewed without any reservation, the APSC is debarred from raising the plea of ineligibility that too to suit its purpose with the sole motive of favouring the respondent No. 4 for extraneous consideration.
27. Countering the above argument, both Mr. A.K. Bhuiyan, learned Standing Counsel, APSC and Mr. T.C. Chutia, learned counsel representing the respondent No. 4 submitted that a
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constitutional body like APSC having selected the respondent No. 4 on the basis of her eligibility and performance, the petitioner cannot call in question such selection. According to the said two learned counsels, although the respondent No. 4 did not mention in her application about the particular diploma certificate in Yoga, but her application infact was accompanied by the said certificate, which the
APSC duly took note of and consequently she was invited for the interview.
28. Ms. R. Chakraborty, learned State Counsel, submitted that the State Government has received the recommendation of the
APSC in favour of the respondent No. 4, but before it could act upon the said recommendation, the interim order having been passed in this proceeding, she could not be appointed. She submits that since the selection was conducted by APSC, the State
Government has nothing to do with the allegations made by the petitioner.
RECORDS OF SELECTION
29. As regards the records of the selection, since the learned Standing Counsel, APSC submitted that the documents submitted by the respondent No. 4 along with her application had been sent to the State Government with the recommendation, and thus the same would be available with the State Government and not with the APSC. As per direction of this Court, Ms. R.
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Chakraborty, learned State Counsel has produced the said records, while Mr. Bhuiyan, learned Standing Counsel, APSC has produced the records of the selection.
30. I have considered the matter in its entirety and have perused the records of the selection as has been produced by the learned Standing Counsel, APSC. I have also perused the records produced by the learned State Counsel. While the records/documents produced by APSC are those mentioned in the above quoted order dated 17.2.2011, the records produced by the learned State Counsel are those which were purportedly sent to the
Government by the APSC along with the recommendation of the respondent No. 4.
ANALYSIS, FINDINGS AND CONCLUSIONS
31. As regards the claim of the petitioner that the original application submitted by the respondent No. 4 offering her candidature for the post did not contain the diploma certificate of
Pachim Mangaldoi Yoga Mahavidyalaya, but the same was inserted later on, the respondent No. 4 and the APSC have maintained that the said certificate did accompany the application.
During the course of hearing when it was pointed out that the application form duly filled in by the respondent No. 4 offering her candidature did not mention anything about the said certificate except the three months certificate course certificate issued by the
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Institute at Amravati (Maharastra), it was submitted by the learned counsel for the respondent No. 4 that in absence of space in the relevant column (Column No. 12), the said certificate could not be indicated, although the same was enclosed as one of the
Annexures to the application. However, when it was pointed out that leaving aside the said column pertaining to enclosures to the application, where enough space was left for indicating the said certificate, there was a specific column (Column No. 11) asking the candidates to specifically mention the supporting documents conforming to the eligibility criteria as per the advertisement but the respondent No. 4 did not mention anything about the said certificate, but only mentioned about her B.A. Degree certificate and the three months certificate course certificate from Amravati, no answer was forthcoming.
COLUMN NOS 11 AND 12 OF THE APPLICATION
32. For a ready reference, the aforesaid two columns
(Column No. 11 and 12) as were filled in by the respondent No. 4 are indicated below:
11. Particular of the requisite Batchelor in Arts (degree), qualifications as given in the certificate in Yoga advertisement (i) Mention the Degree/Diplomas (ii) Year of passing B.A. in 2000; Certificate in Yoga 2006 (iii) Name of the B.A. from Guwahati University & University/College/ Institution Yoga from Amravati University, from which you have passed Maharastra (iv) Registration No. (necessary
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for Doctor
12. RECOGNISED EDUCATIONAL/OTHER PROFESSIONAL QUALIFICATION/ TRAINING COURSES, ETC. (Enclose a separate sheet, where necessary)
Exam. Division Percentage of Year of Duration Board/ Subject taken Passed/ Degree/ / marks passing of Degree/ University/ Training Grade/ obtained Degree/ Diploma/T Institution obtained Class Diploma raining course HSLC II nd 59.9% 1994 SEBA ENG, Ass. Maths, SC, S.Sc. Hindi HSSLC II nd 53% 1996 A.H.S.E.C. Ghy- Eng, Ass, Edu, 21 P.Sc, Edu, L.P. TDC Arts (B.A) III rd 39% 2000 3 yrs GUWAHATI Eng, Ass, Edu, P.Sc UNIVERSISTY (Major) BPED 1st 75% 2006 1 yr. SANI GADGE Ph.S.F&M.E. Phy, BABA EDU&S.PSY. ORG, AMRAVATI ADM, ANATOMY, UNIVERSITY METHOD OFFICIATING ECOACHING CERTIFICATE IN 1st 70% 2006 3 months H.V.P.M’S ANCIENT YOGA OF YOGA Y.N.K., INDIA, MODERN AMRAVATI CONCEMPT & SCIENTICALLY USES.
33. Had it been a case of enclosing the diploma certificate
purportedly issued by the Institute at Mangaldoi, which according
to the respondents conform to the eligibility in Yoga as per the
advertisement, a candidate with normal prudence would have
specifically mentioned about the same instead of mentioning the
three moths certificate course certificate which did not conform to
the requirement of Yoga qualification. It is in this context, the
specific plea of the petitioner is that at the first instance, the
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application submitted by the respondent No. 4 did not contain the certificate issued by the Pachim Mangaldoi Yoga Mahavidyalya and that the same was inserted at a later stage, which could be even at the stage after filing of the writ petition.
HAND WRITTEN INSERTION
34. While considering the above aspect of the matter, the records produced by the APSC will bear a relevance. In this connection, the affidavit filed on 2.3.2011 will also have a bearing.
In paragraph 4 of the said affidavit, The APSC while stating about the procedure adopted towards scrutinizing the application has stated that at the first level, a statement of the applicants, such as name, address, community, age, qualification etc. was typed as the statements of the applications. Subsequently the names along with the accompanying documents were further scrutinized in reference to the advertisement and the applicants possessing the minimum qualification as per the advertisement were only called for the interview.
35. If we go by the said stand of the APSC, our expectation will be to get typed statement of particulars of candidates, but in the instant case alongside the typed statements of the particulars, the words “Diploma in Yoga from Pachim Mangaldoi Yoga
Mahavidyalya (1 year) 1/08” are found inserted by hand against WP(C) No. 3220/2010 Page 25 of 47 26
the name of the respondent No. 4 as against the original typed words/statement “HSLC-II/94; HSSLC-II/96, TDC (Arts)-
III/2000, BPED 1/06; certificate in Yoga 1/06”.
36. There is no explanation from the APSC as to why such an important qualification, in absence of which the respondent No. 4 was not even entitled to be called for the interview had to be inserted by hand.
APSC’S DOUBLE STANDARD
37. There is another significant aspect of the matter.
Although the petitioner was called for the interview with the necessary presumption that he was eligible for the post, but the
APSC in its affidavit in tune with the respondent No. 4 has stated that the petitioner was not eligible for the post as the Yoga certificate issued by the particular Institute is not recognized by the
Government or UGC. The question necessarily will arise as to why no such plea was taken earlier. The selection records including the statement of particulars of the applicants do not indicate any remark that the petitioner was ineligible for the post in terms of the advertisement. It is only in the affidavit filed by the APSC, such a plea has been taken.
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38. On the other hand, the contrary stand taken by the
APSC in respect of the respondent No. 4 is noticeable. In this connection, the statement made by the APSC in paragraphs 13, 18 and 21 of its affidavit dated 22.12.2010 quoted above may be referred to.
39. In addition to the above, the APSC in its affidavit filed on 2.2.2011 has made the following statement in paragraph 5.
“5) that on the basis of the record maintained by the Commission, the certificate from the Paschim Mangaldoi Yoga Mahavidyalaya awarded to the respondent No. 4 pertaining to 1 (one) year diploma in yoga was taken into consideration by the Commission, during the process of selection of Assistant Director (Yoga). That as such, it is implied that the said certificate was accepted as a certificate from an institute awarding 1 year diploma in Yoga approved/ recognized by government/UGC.” (Emphasis supplied)
40. If we go by the aforesaid statement, the APSC while taking the plea that since the respondent No. 4 was awarded with one year Diploma in Yoga by the Institute at Mangaldoi, impliedly the said certificate was accepted as a certificate from an Institute approved/recognized by Government/UGC, but, in case of the petitioner, its stand is totally different about which discussions have been made above. According to the APSC, the Institutions from which the petitioner has obtained Diploma in Yoga are not
WP(C) No. 3220/2010 Page 27 of 47 28
approved/recognized by the Government/UGC and those are not acceptable.
41. Apart from the fact that there was no such plea in the entire process of selection, rather the petitioner was invited for the selection in acceptance of his candidature, the APSC while taking the said stand against the petitioner has maintained a double standard which is very disturbing and unbecoming of a constitutional body. While its stand in respect of respondent
No. 4 is that the respondent No. 4 having been invited for the interview, her diploma in Yoga from Mangaldoi was impliedly accepted as the requisite qualification in Yoga, but the same very
APSC has maintained a different stand in respect of the petitioner in questioning his Yoga certificates. This particular stands of the
APSC is really unfortunate, more particularly when never before during the course of the selection, it had questioned the eligibility of the petitioner.
INFORMATION FURNISHED UNDER RTI ACT VIS-À-VIS THE
RECORDS
41. As to what were the documents mentioned and submitted by the respondent No. 4 along with her application have been noted above. The said documents were only reflected in the
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letter dated 20.6.2010 (Annexure-IX) by which the petitioner’s application under RTI Act was responded to by furnishing the documents which accompanied the application submitted by the respondent No. 4. As per the said letter and all the documents furnished therewith, there was no certificate from Pachim
Mangaldoi Institute on which the respondent No. 4 and the
APSC have placed reliance.
42. Had it been a case of submitting the particular certificate along with the application offering candidature by the respondent
No. 4, the said letter dated 23.6.2010 furnishing the information to the petitioner would have surely mentioned about the same. It will be pertinent to mention here that the petitioner by his letter dated
14/19.5.2010 seeking the informations, had contended that there was illegality in the selection process for the post of Assistant
Director (Yoga). By the said letter, he had sought for copies of all the documents the respondent No. 4 had submitted while offering her candidature.
43. On verification of the records produced by the learned
State Counsel submitting therewith, interalia, the recommendation of the APSC dated 16.3.2010 and the letter dated 11.6.2009 by which the application submitted by the respondent No. 4 was forwarded by the District Sports Officer, Morigaon under whom she
WP(C) No. 3220/2010 Page 29 of 47 30
has been working as Physical Instructor to the Director of Sports and Youth Welfare, it is found that in the said letter dated
11.6.2009 there was no mention of any enclosure to the application submitted by the respondent No. 4. However, that by itself may not conclusively establish that her application did not accompany any certificate, more particularly, in view of aforementioned information furnished to the petitioner. The most important aspect is, as to whether the respondent No. 4’s application did accompany the particular certificate. As per the information furnished to the petitioner, referred to above, no such certificate accompanied the application submitted by the respondent No. 4.
ATTESTATION OF CERTIFICATES AND THEIR DATES
44. At this stage, it may not be out of place to deal with a particular aspect of the matter, which is the attestation to the certificates purportedly accompanying the application submitted by the respondent No. 4. In all the documents, furnished to the State
Government, along with the application of the respondent No. 4 as records, the attestation is dated 10.6.2009 done by the
Superintendent, Assam Secretariat, Public Works
Department (R & B), Budget Branch, Dispur, Guwahati-6, barring the certificate in controversy, which carries the seal of
WP(C) No. 3220/2010 Page 30 of 47 31
attestation by different authority and on a different date which is
8.6.2009.
45. The records also include two character certificate in favour of the respondent No. 4 and both are dated 12.6.2009.
While the 1st certificate is by the same authority which attested the document on 10.6.2009, the 2nd certificate was issued by the
Deputy Secretary to the Government of Assam, Public
Works Department (R & B), Budget Branch, Dispur,
Guwahati-6. It is the said authority which had attested the certificate in controversy on 8.6.2009. The records also include a copy of the certificate issued by the VLCC Institute to the respondent No. 4 certifying successful completion of the purported training programme. This document was attested on 15.6.2009 by
Superintendent, District Sports & Welfare, Assam,
Guwahati.
45. From the above, what is seen is that while all other documents were attested by the same very authority on
10.6.2009, the certificate in controversy was attested by another authority on 8.8.2009. That apart, as noted above, there are two character certificates both dated 12.6.2009, one issued by the attesting authority, which had attested all other documents barring the certificate in question and another by the authority which had
WP(C) No. 3220/2010 Page 31 of 47 32
attested the certificate in controversy. As noted above, the documents also take into its folds another certificate of VLCC
Institute, which was attested by another authority on 15.6.2009.
On the other hand, the application offering candidature mentioning the documents indicated in column 11 and 12, quoted above was submitted by the respondent No. 4 on
11.6.2009 and the same was also forwarded by the District
Sports Officer, Morigaon by his letter No.
DSO/M/Pt/24/92/710 dated 11.6.2009. If that be so, it is not understood as to how the documents could include the two character certificates both dated 12.6.2009 and the
VLCC certificate dated 15.6.2009.
VERIATION IN NUMBER OF DOCUMENTS AND THEIR DATES
46. In the counter affidavit filed by the respondent No. 4 on
2.11.2010, there is no specific mention about the documents that were enclosed along with her application offering candidature for the post of Assistant Director (Yoga). However, she has indicated different certificates in her possession. On the other hand, in the additional affidavit filed by the APSC on 2.2.2011, it has mentioned 7 documents allegedly submitted by the respondent No. 4 along with her application which include the certificate in controversy. As to what were the documents
WP(C) No. 3220/2010 Page 32 of 47 33
the application of the respondent No. 4 had accompanied as was informed to the petitioner by the aforementioned Annexure-IX letter dated 23.6.2010 have been indicated above. However, the State
Governments records contain 23 documents along with the application of the respondent No. 4 which were attested by the authorities, about which mention has been made above.
47. The question that necessarily arises is as to how the application submitted by the respondent No. 4 on
11.6.2009 could accompany the certificate issued on
12.6.2009 and attested on 15.6.2009. Further, the certificate in controversy was attested by another authority on another date unlike the other certificates, which were attested by a different authority and on the same date.
48. While it is true that merely because the certificate in controversy was attested by another authority and on a different date, that by itself cannot lead to any conclusion that the same was obtained and inserted at a later point of time, but the matter will have to be considered in the touchtone of controversy that has been raised. It is the specific case of the petitioner that the application submitted by the respondent No. 4 did not accompany the particular certificate, but was manipulated and/or fraudulently obtained from the particular institute at Mangaldoi and inserted in her
WP(C) No. 3220/2010 Page 33 of 47 34
application. This specific plea will also have to be considered in reference to the Annexure-IX letter dated 23.6.2010, by which the petitioner was furnished with the information relating to the documents which accompanied the application submitted by the respondent No. 4. The said information/documents did not mention about the particular certificate. Had the application been accompanied with the said certificate, there would have been mention of the same in the information/documents furnished to the petitioner.
YOGA COURSE PURPORTEDLY UNDERTAKEN BY RESPONDENT NO. 4.
49. According to the respondent No. 4, she had undergone the particular diploma course conducted by Pachim Mangaldoi
Yoga Mahavidyalaya. In support of her such plea, she has referred to the documents pertaining to the said course, which include her purported application dated 13.8.2007 for the Yoga
Training Course and the attendance sheets. As per the prospectus of the Mahavidyalaya, the duration of the course is one year. If we go by the purported application made by the respondent No. 4 for the course, which is dated 13.8.2007 and the attendance sheets, the course started from 16.8.2007 and came to an end on
21.2.2008. According to the information furnished to the petitioner, the written examination, after the course, was held on 27.2.2008 to
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29.2.2008 and the practical test from 3.3.2008 to 5.3.2008. Thus, the course was of six months duration including the examination dates and not of one year duration as disclosed in the prospectus and the certificate in controversy. In the certificate shown issued on 13.11.2008, the course is mentioned as one year course, although the fact of the matter is that the course started on 16.8.2007 and ended on 21.2.2008 and the examinations were held between
27.2.2007 and 5.3.2008. Thus it is not understood as to how the said course could be staid to be a one year course even if the respondent No. 4 had undergone the said course.
50. As per the information furnished to the petitioner by the said Institute in the name and style of Paschim Mangaldoi Yogic
Hospital vide letter dated 7.2.2011, the answer scripts of all the examinations namely terminal, half yearly and final are not kept in the office after one year. Thus, the said Institute could not provide the answer scripts called for by the petitioner pertaining to the said course. That apart, while the certificate in controversy has been issued by Paschim Mangaldoi Yoga Mahavidyalaya (Hospital and Research Center), Mangaldoi Yogashram Samity, but the information furnished to the petitioner is by Paschim Mangaldoi
Yogic Hospital. It is not known as to whether there are two different institutes namely Paschim Mangaldoi Yoga
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Mahavidyalaya (Hospital and Research Center), Mangaldoi
Yogashram Samity and Paschim Mangaldoi Yogic Hospital or as to whether the said Mahavidyalaya is under Paschim
Mangaldoi Yogic Hospital.
STATUS OF YOGA MAHAVIDYALAYA AT MANGALDOI
51. As to what is the status of the Mahavidyalaya has been noted above. As per the information furnished to the petitioner, the Mahavidyalaya and its course are not recognized by any Government or University. Further information furnished by the said Institute is that there is no indication about the standard of the Institute as per the instruction of the Government of India. The information furnished also depicts that it is not known to the institute as to for which stages the diploma offered by it would be applicable and that it is for the authority to decide as to for what purposes the diploma conferred by it would be applicable.
52. When the institute itself has certified that the same and its course are not recognized by Government or University, the matter ends there. As per the requirement of the advertisement, apart from the degree qualification in any one of the streams i.e.
Arts, Science and Commerce, the candidate must have a degree
WP(C) No. 3220/2010 Page 36 of 47 37
or diploma in Yoga from a Government/UGC recognized
Physical Education Institute. Thus even if the certificate purportedly produced by the respondent No. 4 is believed to have been genuinely obtained by her by undergoing the course at Paschim Mangaldoi Yoga Mahavidyalya and the same did accompany the application submitted by her, the same having not conformed to the requirement of the qualification prescribed in the advertisement, her candidature could not have been accepted. However, the
APSC in its affidavit filed on 22.12.2010, while justifying the selection of the respondent No. 4 and recognizing the certificate in controversy made the above quoted statement in paragraph 21.
Such stand on the part of the APSC is per-se illegal and contrary to the real state of affairs relating to the said certificate as depicted by the institute itself.
ROLE OF APSC IN THE PROCEEDING AND ITS CREDIBILITY
53. The most astonishing part of the entire episode is that the APSC, a constitutional body on whose duties, responsibilities and conduct, the general public supposedly repose confidence, in the instant proceeding not only supported tooth and nail the candidature of the respondent NO. 4 even to the extent of she having impliedly conformed to the required qualification of diploma/degree in Yoga from a Government/UGC recognized
WP(C) No. 3220/2010 Page 37 of 47 38
institute, ignoring the same parameters and yardstick that would be applicable to the case of the petitioner has questioned the very eligibility of the petitioner. According to the affidavit filed by the
APSC, the petitioner is not eligible for the post of Assistant
Director (Yoga) as his diploma/degree in Yoga is not recognized.
If that be so, the question necessarily arises as to why the petitioner was called for the interview, coupled with the fact that no where in the selection process, there is any indication that the petitioner is ineligible for the post.
54. Even if we accept the said contention of the APSC, it will not enhance its credibility, but will lower the same inasmuch as, in the process of scrutinizing the applications, at different levels as indicated in its affidavits, such alleged ineligibility of the petitioner could not be detected. Coupled with this, the said process also could not detect that the purported diploma obtained by the respondent
No. 4 from the particular institute is not a recognized one by
Government/University. This speaks volumes of lack of credibility and trustworthiness which the APSC is required to maintain in public eyes.
RECORDS OF APSC
54. The verification of the records (some loose sheets) produced by the learned Standing Counsel, APSC make shocking
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revelation. As to what are the documents contained in the said records find mention in the order dated 17.2.2011 quoted above. As to how in the typed statement of applicants containing the particulars therein, there is hand written insertion of the words
“diploma in Yoga from Paschim Mangaldoi Yoga
Mahavidyalaya (one year) 1/08” in respect of the respondent
No. 4 has also been mentioned above. This hand written insertion is not authenticated and/or signed by anyone of the APSC. The next document is the mark sheet showing the marks secured by the candidates. It comprises of 4 sheets containing one signature/ initial without disclosing as to who is the person concerned. There is apparent overwriting in some of the entries even to the extent of removing the original marks making use of whitener. In the said mark sheet, the respondent No. 4 has been awarded 30 out of 30 under the head “General Bearing”.
55. The said documents also include the document assigning marks under different heads including marks assigned for degree or diploma in Yoga which is 15. 20 marks was assigned for knowledge of the subject. Another document contained in the records is the one signed by Chairperson, APSC indicating marks to be assigned under the heads “Very Good”, “Good”, “Average” and “Fair” respectively. Thus, “Fair” has been placed below “Average” with the assignment of 14 marks for Fair and 16 marks for Average.
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56. Another document contained is the duplicate copy of categorization of the candidates under the said heads by one Sri
Aditya Kumar Talukdar stated to be the expert called for the interview. However, as noted above, there is nothing to indicate that Sri Aditya Kumar Talukdar was either invited as expert or deputed by the Government as such.
MERIT LIST
57. The merit list dated 15.3.2010 had been prepared by the under Secretary/Assistant Controller of Examination assigning marks secured by the candidates in which there is no signature of the members who conducted the selection/interview. That apart, in the minutes of the selection also with the initial of one Mr. R. K. Paul, said to be the nominated member of the Selection Board, there is no signature of the expert Sri Aditya Kumar Talukdar. Likewise, in the final merit list also there is no signature of the said expert.
The purported recommendation made by the Selection Committee was finally recommended/ approved under the signatures of the
Chairperson, APSC; Shri B.N. Das, Member, APSC and Sri
R.K. Paul, Member, APSC, although names of 5 members of the
APSC were indicated in the final recommendation. Thus, the final recommendation has not been signed by other two members
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namely Sri S.H. Saikia and Dr. S. Nath, which has been sought to be explained by APSC that irrespective of there being no signatures of the said two members, with the signatures of other three members, the required quorum was met.
59. It is on the basis of the aforesaid documents, the final select list was drawn. On perusal of the said documents and the manner and method in which they are maintained, it does not inspire confidence of this Court that the selection was conducted in a fair and transparent manner conforming to the requirements of a proper selection. At the first instance, the statement of the applicants is not signed by anyone authenticating the entries there in and at the second instance, the purported mark sheet prepared by the unidentified member of the
APSC is also not signed by the expert although he purportedly participated in the selection process/interview held on 4.3.2010.
Unless the initial indicated in the said mark sheet was identified by
APSC as that of Sri R.K. Paul, there is no other means to identify the same as that of one of the members of the APSC.
60. Sri Aditya Kumar Talukdar, the purported expert nominated and participated in the selection process has only signed in a typed sheet (produced as duplicate) categorizing the candidates under different heads, such as Fair, Average and Good. He did
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not give any marks of his own. It is also not known as to whether he was apprised of the fact that as per APSC guideline, Fair is to be placed below Average and that for Fair mark assigned was 14 and for Average it was 16. It is also not known as to whether he was apprised of the fact that the respondent No. 4 was to be assigned 30 out of 30 for General Bearing. Finally the merit list was prepared and signed by the Under Secretary/Assistant
Controller of examinations on 15.3.2010. As indicated in the order dated 17.2.2011 quoted above, out of three members, who had signed the final recommendation, two had signed on 15.3.2010 and the third member signed on 10.3.2010. However, it was submitted by the learned Standing Counsel, APSC that the third member also signed on 15.3.2010 although appears to be 10.3.2010.
APSC, A CONSTITUTIONAL BODY
61. If a constitutional body like APSC conducts selection in the above manner, naturally the public confidence and faith on it will diminish. It is not for nothing, it is often whispered that all is not well with the affairs of the APSC. In this connection I am tempted to refer to the following observations made by this Court in a case pertaining to APSC reported in (2009) 4 GLT 648 (Ratul Kumar
Das & Ors. Vs. State of Assam) quoted below:
“1. Democratic values enshrined by the Constitution can thrive and prosper only on public confidence in the institutions that the
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Constitution has envisaged to act as necessary support pillars. Public confidence in the Assam Public Service Commission over the years has eroded and a perception has been generated that all is not well with the said institution. Though the tenor of the language used may be mild in its suggestion, it cannot but be observed that lack of public confidence in the Public Service Commission carries ominous portents for the future. The credibility of any institution primarily depends on the conduct of the persons manning it. People of exemplary conduct, exceptional ability and utmost integrity who share a serious concern for public good, alone, should be inducted into such a body. There is no room for compromise or complacency in the matter. Proper induction and necessary cleansing must be done if any institution has to earn public trust and confidence without which the constitutional goal will prove to remain an illusion. The above observations have been felt necessary in view of the perceptions with regard to the functioning of the Commission that had manifested itself in the course of the deliberations that had taken place at the prolonged hearing of these cases. The ultimate conclusion that the Court has reached in the present cases on the basis of application of the settled legal principles is by no means a vindication of the acts of the Public Service Commission and the above observations have been felt necessary to awaken a realization in the right quarters the need for an abundant measure of public confidence in the institution that alone can justify the high constitutional status bestowed on it. Having stated all that was considered necessary, the Court will now turn to the facts of the present cases.
69. In the instant case, it is on record that in at least in some answer scripts final marks awarded by the Examiners were increased or decreased by the Scrutinisers / Head Examiners. Although, the Commission has referred to the above provisions so as to justify their action but such course of action adopted does not inspire the confidence of the Court. Transparency and fair play demand a better methodology. After all the expert examiners are appointed subject wise.
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There is no guarantee that the particular assessment made by the Scrutiniser and / or the Head Examiner, by way of revaluation is the better assessment than the assessment made by the expert examiners. The course of action adopted also makes room for doubt. This requires immediate attention of the Commission, so as to eradicate any amount of doubt. Normally, in the University examinations, the job of the Scrutiniser is to find out any omission in the evaluation by the Examiner, such as, wrong calculation of total marks, omission to evaluate any answer etc. Normally, it is not the business of a Scrutiniser to pick up answer scripts to find out as to whether the Examiner has awarded high or low marks. Likewise, the Head Examiner’s business is to supervise the scrutiny and his role is supervisory. But in the instant case, the Scrutinisers and Head Examiners were given free hands to increase or decrease the marks, already awarded by the expert Examiners. All these aspects of the matter need immediate attention of the APSC and for that matter, the authority at the helm of affairs.
72. The mistakes which the APSC has admitted in their counter affidavits also have the potential of eroding the credibility of the APSC in the public eyes. As a constitutional body, its primary duty is to conduct important selections pertaining to public offices. If such a body commits such mistakes as has been admitted by itself, the general public is bound to raise accusing fingers which is not at all healthy sign in the fair name of APSC, which otherwise should have been the hallmark.
73. My observations made above are in tune with the observations made in the opening passage of the judgement. The APSC and the authority at the helm of affairs will do well to remove the general feeling that all is not well with the affairs of the APSC.
74. I part with the case records referring to Hary-R-Blythe’s observations (cited in 21 Green Bag 224), which finds mention in AIR 1993 SC 1535 (J.S. Jadhav Vs. Mustafa Hazi). Although the
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observation is in the context of cleansing the legal field from poison, but the same may not be altogether out of place in the present context, as the test for the members of the APSC and the Institution as a whole, as highlighted in the opening passage of the judgement is the same. “Great God ! the hour has come when we must clear the legal fields from poisons and from fear ; We must remould our standards – built them higher, And clear the air as though by cleansing fire, weed out the damning traitors to the law, Restore her to her ancient place of awe.”
62. In the normal process of a selection, proper records are maintained. In the normal circumstances, the members of the
Selection Board are identified before hand and their signatures with proper identification also appear in the minutes of the selection. But in the instant case, as noticed above, there is no minutes of the selection. There was no authentication of the statement of applicants. The purported statement of marks was endorsed by putting an initial without any identity of the person concerned. The same was also not signed by the expert, who only categorized the candidatures under different heads. Thereafter the Under
Secretary/Assistant Controller of Examination prepared the final merit list without the signatures of the members of the Selection
Board. A proper selection is not conducted in that manner. If this is the manner and method in which APSC conducts selections, a lots are required to be done so that fairness and transparency in the matter of selection by a constitutional body and so basic for any selection are forced to be adopted by APSC.
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63. While deprecating the manner and method in which the
APSC conducted the selection and its stand before this Court, towards supporting the case of the respondent No. 4 and opposing the petitioner instead of maintaining an impartial stand, the writ petition is allowed by setting aside and quashing the selection of the respondent No. 4 for the post of Assistant Director (Yoga).
64. The APSC is directed to be careful in future in conducting various selections in which it will have to maintain transparency and fairness. It will also have to adopt due procedure and method in conducting selections and minutes of the selections will have to be maintained in a proper, fair and transparent manner.
It is really unfortunate for requiring this Court to direct the APSC to maintain proper minutes of selection as is done in any other selection conducted by other authorities including departmental authorities. The APSC must not carry a feeling that being a constitutional body, it is immuned from judicial scrutiny and that the
Court will swallow anything and everything it will throw to the Court.
Falsehoods not only disagree with truths, but usually quarrel among themselves.
65. It is not for nothing general feeling in the public, more particularly, those aspiring for jobs is that all is not well with the
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APSC in its affairs. The APSC, a constitutional body entrusted with the duties and responsibilities to make recommendations for public offices is expected to maintain a high standard in the matter of quality of selection maintaining transparency and fair play in the joint. It is for this matter, appointment to the services of the APSC as members are expected to be made of deserving persons with high integrity and academic back ground. But as the things stand today, appointment to the services of the APSC are made in political consideration and in the process, the quality of services and the sanctity of APSC, a constitutional body are compromised. This
Court can only expect that good sense would soon prevail on those, who are at the helm of affairs. Defer no time, delays have dangerous ends.
66. The writ petition is answered in the above manner. It will be open for the petitioner to take recourse to such legal remedies towards unearthing the real truth behind issuance of the certificate in controversy and as to how the same could be placed in the APSC/Government records.
67. Writ petition is allowed leaving the parties to bear their own costs.
JUDGE
Mkk
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