WP(C) No.3279/2017 Page 1 of 17

IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

WRIT PETITION (C) NO.3279 OF 2017

DR. (SMTI.) MANALISHA CHOUDHURY,

Wife of Shyamanta Kumar Baruah, Resident of Yamini Path, Janakpur, Kahilipara, Guwahati, PIN – 781019, Kamrup Metropolitan District, Assam.

……..Petitioner

-Versus-

1. THE STATE OF ASSAM, represented by the

Commissioner & Secretary to the Government of Assam, Home & Political Department, Dispur, Guwahati, PIN – 781006, Kamrup Metropolitan District, Assam.

2. THE DIRECTOR,

Directorate of Forensic Science, Assam, Kahilipara, Guwahati, PIN – 781019, Kamrup Metropolitan District, Assam. 3. ASSAM PUBLIC SERVICE COMMISSION, represented by

its Chairman, Jawaharnagar, Khanapara, Guwahati, PIN – 781022, Kamrup Metropolitan District, Assam.

4. THE SECRETARY,

Assam Public Service Commission, Jawaharnagar, Khanapara, Guwahati, PIN – 781022, Kamrup Metropolitan District, Assam.

5. THE DEPUTY SECRETARY,

Assam Public Service Commission, Jawaharnagar, Khanapara, Guwahati, PIN – 781022, Kamrup Metropolitan District, Assam. 6. MS. MAITREYEE SHARMA,

Sai Niwas, Near Gangausha Eye Clinic, Opposite Fatasil Bazar, A.K. Deb Road, Guwahati, PIN – 781009, Kamrup Metropolitan District, Assam. 7. DR. NAMRAM SUSHINDRAJIT SINGH,

Department of Zoology, Cotton College State University, Guwahati, PIN – 781001, Expert Member of the Interview Board.

……..Respondents

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B E F O R E HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI

For the petitioner : Mr. M. Choudhury, Senior Advocate. Mr. M. Mahanta, Advocate.

For respondent Nos.1 & 2 : Mr. C. Bhattacharyya, Government Advocate.

For respondent Nos. 3, 4 & 5 : Mr. C. Barua, Standing Counsel, APSC.

For respondent No.6 : Mr. P.K. Roy Choudhury, Advocate. Mr. S. Banik, Advocate.

For respondent No.7 : None appears.

Dates of hearing : 17.08.2017, 24.08.2017 and 08.09.2017.

Date of Judgment & Order : 27th October, 2017.

JUDGMENT & ORDER

Heard Mr. M. Choudhury, learned senior counsel for the petitioner. Also

heard Mr. C. Bhattacharyya, learned State counsel, appearing for the respondent

Nos.1 & 2, Mr. C. Barua, learned standing counsel, APSC, appearing for the

respondent Nos.3, 4 & 5 and Mr. P.K. Roy Choudhury, learned counsel, appearing for

the respondent No.6. None has entered appearance for the respondent No.7,

despite service of notice.

2. The respondent No.6 had filed an application for vacation, alteration

and/or modification of the interim order dated 02.06.2017, which was registered as

I.A. (C) No.2292/2017. The learned counsel appearing for the parties submit that

instead of taking up of the application for vacation of the interim order, the writ

petition can itself be taken up for disposal. Accordingly, as agreed to by the learned

counsel appearing for the parties, the writ petition is taken up for disposal.

3. It is submitted by Mr. P.K. Roy Choudhury, learned counsel appearing

for the respondent No.6 that the application filed for vacating the interim order may

be treated as the stand of the respondent No.6 to which Mr. M. Choudhury submits

that the objection filed to the said application may also be taken into consideration.

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4. The case of the writ petitioner is that she was appointed as Senior

Scientific Assistant in the Forensic Science Laboratory, Assam by an order dated

19.03.1996 issued by the Inspector General of Police (Administration), Assam, on the

basis of a selection process conducted by the Assam Public Service Commission (for

short, “APSC”). She was promoted to the post of Junior Scientific Officer by an order

dated 12.04.2006 issued by the Secretary to the Government of Assam, Home (A)

Department. Subsequently, she was promoted to the post of Scientific Officer by an

order dated 20.06.2013. While serving as such, the petitioner responded to an

advertisement being advertisement No.1/2017 dated 16.01.2017, which was

published by the APSC in the 17th January, 2017 publication of the Assam Tribune,

whereby applications were invited for the post of Deputy Director (Biology Division)

in the Regional Forensic Science Laboratory, Assam, Jorhat under the Home &

Political Department. The respondent No.6 had also submitted her application. A

Notification dated 28.04.2017 was issued by the APSC indicating that the respondent

No.6 as well as 30(thirty) other candidates did not submit any certificate with regard

to research experience of 5(five) years along with their applications. The candidates

were called for viva voce interview on 11.05.2017 and the respondent No.6 was also

called for the said interview. The petitioner appeared in the interview on 11.05.2017,

whereas the respondent No.6 appeared for the said interview on 15.05.2017. The

interviews were held on 11.05.2017, 12.05.2017, 15.05.2017, 16.05.2017 and

17.05.2017. The interview was conducted by 2(two) Members from the Commission

and 1(one) Expert Member.

5. It is pleaded in the writ petition that questions asked to the petitioner

were not related to the field of forensic science. No emphasis was given to the

petitioner‟s certificates and her experience of more than 21 years. The process of

interview was conducted as if it was for selection of an academic post, which was not

the case. Above all, the respondent No.7, who was called as an Expert, did not have

the credentials to be an Expert as the respondent No.7 had joined service as an

Assistant Professor of Department of Zoology in Cotton College only on 17.11.2015

and his focus of research being Avian Photobiology etc. was not even remotely

connected to the post in question.

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6. It is pleaded that the respondent No.6 did not have the essential

qualification as she is a post-graduate in Molecular Biology and Biotechnology, which

is not a qualification prescribed in the advertisement. It is pleaded that the

respondent No.6 did not have research/analytical experience of 5(five) years, let

alone in the field of forensic science. Despite the fact that the respondent No.6 was

not even eligible to participate in the selection process, when result of the selection

was declared by the APSC on 17.05.2017, it was found that the respondent No.6 was

selected and was recommended for the post of Deputy Director (Biology Division),

Regional Forensic Science Laboratory, Assam, Jorhat.

7. Mr. Choudhury has submitted that the Notification dated 28.04.2017

(Annexure-16 of the writ petition) issued by the APSC demonstrates that the

petitioner had not submitted experience certificate of 5(five) years along with the

application. Drawing attention of the Court to Clause-d of the advertisement dated

16.01.2017, i.e. “How to fill up the form”, Mr. Choudhury has submitted that the said

Clause of the advertisement permits submission of documents in respect of caste,

age and pass certificates only within a grace period of 10(ten) days but in no case,

experience certificate could have been allowed to be filed subsequent to the last date

of filing of the application in terms of Clause (d). He has contended that M.Sc.

Degree of the petitioner being on the subject of “Molecular Biology and

Biotechnology” and not on the subject of “Biotechnology”, in absence of any

equivalence granted by the Government of Assam treating the M.Sc. Degree of

“Molecular Biology and Biotechnology” as equivalent to M.Sc. Degree of

“Biotechnology”, APSC did not have the jurisdiction and authority to treat the

application of the respondent No.6 to be a valid application. Even if it is accepted for

argument‟s sake that research experience gathered during the pursuit of Ph.D. is

considered to be research for the purpose of the post in question, the application of

the respondent No.6 being deficient, ought to have merited rejection in as much as

the provisional certificate (Annexure-G of the application for vacating stay) indicates

that she was registered for the Ph.D. course in the year 2012 and was conferred with

the Ph.D Degree only on 17.04.2017. Criticising the methodology adopted by the

interview Board, Mr. Choudhury submits that the interview Board did not attach any

importance to the analytical experience of the petitioner. It is submitted by him that

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the petitioner is the only expert in Assam doing DNA finger print analysis. The Expert

invited to conduct the interview did not have the requisites of an Expert to conduct

an interview as he had merely an experience of 1(one) year 6(six) months as an

Assistant Professor, that too, in a subject not related to forensic science. Accordingly,

he has submitted that the selection process is entirely vitiated warranting

interference of this Court. Mr. Choudhury has placed reliance on the judgments of

the Apex Court in the cases of Dr. Krushna Chandra Sahu & Ors. -Vs- State of

Orissa & Ors., reported in (1995) 6 SCC 1, Secretary, A.P. Publish Service

Commission -Vs- B. Swapna & Ors., reported in (2005) 4 SCC 154, Mohd.

Sohrab Khan -Vs- Aligarh Muslim University & Ors., reported in (2009) 4 SCC

555, Ganapath Singh Gangaram Singh Rajput -Vs- Gulbarga University &

Ors., reported in (2014) 3 SCC 767, Nagaland Public Service Commission -Vs-

State of Nagaland, reported in (2017) 4 Scale 275.

8. Mr. Roy Choudhury, learned counsel appearing for the respondent No.6

has submitted that M.Sc. Degree obtained by the petitioner being Molecular Biology

and Biotechnology, it cannot be construed that the respondent No.6 does not have

the essential qualification of M.Sc. Degree in Biotechnology. It is submitted that

nomenclature of the Degree will not be material when the subject of Biotechnology

is very much a part of the Degree in question and besides that Molecular

Biotechnology is also a part of the Biotechnology and, therefore, the contention

advanced by Mr. Choudhury that the respondent No.6 does not have essential

qualification of M.Sc. Degree is misconceived. He has also submitted that the

advertisement is open for fresh candidates as well and giving of precedence to a

candidate on account of he or she having desirable qualification will arise only in the

event of both the candidates being at par. Relying on the additional affidavit filed in

the writ petition, Mr. Roy Choudhury submits that the Ph.D. Entrance Examination -

2011 was held on 23.12.2010 and the respondent No.6 was directed to appear

before the Head of the Department on 17/18.01.2011 for admission. He has also

drawn the attention of the Court to the certificate dated 26.7.2011 (Annexure-F of

the additional affidavit) issued by the Controller of Examination, Tezpur University to

submit that the respondent No.6 was admitted to the programme of Ph.D. on

17.01.2011 and, therefore, there can be no mistaking of the fact that the respondent

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No.6 had the requisite experience of research experience, she having pursued Ph.D.

Programme. Mr. Roy Choudhury submits that the contention advanced by Mr. M.

Choudhury that only caste, age and pass certificates could have been submitted later

on in terms of Clause-d of “How to fill up the form” of the advertisement is

misconceived in as much as the Clause is not restricted to caste, age and pass

certificates only. After the Notification was issued on 28.04.2017, the respondent

No.6 duly submitted the research certificate within the time stipulated. It is also

submitted that the provisional certificate of Ph.D. was issued by the Controller of

Examinations on 19.12.2016 and the original certificate was issued on 07.04.2017,

which was also submitted subsequent to the issue of the Notification dated

28.04.2017. Accordingly, he submits that the documents submitted by the petitioner

must be construed to have been submitted in accordance with law within the time

prescribed. Ph.D. Degree was obtained by the respondent No.6 prior to last date of

submission of the application and, therefore, it cannot be contended that the

respondent No.6 did not have the requisite qualification at the time of submission of

the application. Placing reliance on the Instruction regarding direct recruitment

through the Public Service Commission issued by the Governor with particular

emphasis on Clause 2, he has submitted that the Expert was deputed by the

Government of Assam. In this connection, he has also placed before the Court a

document dated 21.07.2017, furnished to the respondent No.6 in response to the

query made under the Right to Information Act, 2005. The Expert possesses

educational qualification, which is also one of the prescribed essential qualifications

as per the advertisement in question and, therefore, merely because Expert‟s field of

study was not pertaining to forensic science will not invalidate his appointment as an

Expert. It is submitted by him that the petitioner did not raise any grievance with

regard to the selection process and only after she had not been selected, had sought

to raise issues which have no basis whatsoever. Mr. Roy Choudhury has placed

reliance on the judgments of the Supreme Court in the cases of Dr. Triloki Nath

Singh -Vs- Dr. Bhagwan Din Misra & Ors., reported in (1990) 4 SCC 510,

Madan Lal & Ors. -Vs- State of J & K & Ors., reported in (1995) 3 SCC 486,

Bibhudatta Mohanty -Vs- Union of India & Ors., reported in (2002) 4 SCC 16,

Madras Institute of Development Studies & Anr. -Vs- K. Sivasubramaniyan &

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Ors., reported in (2016) 1 SCC 454 and Sunil Kumar & Ors. -Vs- Bihar Public

Service Commission & Ors., reported in (2016) 2 SCC 495.

9. Mr. C. Barua, learned standing counsel, APSC submits that the selection

process was conducted transparently and there is no infirmity in the selection

process. He has also placed before the Court the copy of the mark-sheets for the

post in question.

10. Mr. C. Bhattacharyya, learned State counsel submits that as the selection

is conducted by APSC, the State Government has to act on the recommendations of

the APSC.

11. I have considered the submissions of the learned counsel appearing for

the parties and have perused the materials on record.

12. In the advertisement dated 16.01.2017, the essential qualification for the

post of Deputy Director, Biology Division was laid down as follows:-

“Essential Qualification

(i) M.Sc. in Botany/Zoology/Anthropology (Physical)/Biotechnology from a

recognized university with 5(five) years Research/Analytical experience.”

Desirable qualification was shown as (i) experience in a Forensic Science

Institution.

13. The petitioner is presently serving as Scientific Officer, Directorate of

Forensic Science. Rule 3 of the Assam Forensic Science Laboratory Service Rules,

1985, as amended, provides that Class-I of service shall include the cadres of – (i)

Director, (ii) Joint Director, (iii) Deputy Director, (iv) Senior Scientific Officer, and (v)

Scientific Officer. It also provides that Forensic Science Laboratory shall consist of

Divisions headed by a Deputy Director. Rule 5(3) provides that recruitment to the

cadre of Deputy Director, Senior Scientific Officer of the service shall be made by

promotion in accordance with Rules 12, 13 and 14. Proviso to Rule 5(3) prescribes

that if requisite numbers of candidates duly qualified and suitable are not available

for filling up the vacancies by promotion, the vacancies shall be filled up by direct

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recruitment in accordance with Rule 6(1) and Rule 18. Rule 12 provides that

minimum educational qualification required for promotion to the post of Deputy

Director is M.Sc. in any one of the prescribed subjects and minimum continuous

service of 5(five) years rendered in concerned lower cadre on the 1st January of the

year of promotion for becoming eligible for promotion. In respect of Biology Division

for the post of Deputy Director, prescribed subjects are Botany/Zoology/

Anthropology (Physical)/ Biotechnology. Rule 8 provides that for the post of Deputy

Director, M.Sc. in one of the prescribed subjects is essential qualification with 5(five)

years Research/Analytical experience. Desirable qualification is noted as experience

in a Forensic Science Institution. Therefore, the advertisement was issued in

accordance with the provisions contained in the rules.

14. The last date of receiving duly filled up application form in the

Commission‟s Office was fixed on 08.02.2017 during office hours, making it clear that

applications (including applications received through post) received after the last date

fixed for receipt shall not be entertained. In the context of the arguments advanced

that the application of the respondent No.6 was not complete when submitted, it will

be appropriate to extract herein below Clause-d of “How to fill up the form”:-

“d. Candidates whose applications are found to be short of caste/age/pass

certificates etc will be given 10(ten) days time to submit the aforesaid

documents to the commission from the date of publication of the notification

(Select/Reject List) in this regard. If any candidate fails to furnish the same

within the stipulated period of time, his/her candidature will be rejected

summarily and no further request will be entertained.”

15. A Notification dated 28.04.2017 was issued by the Deputy Secretary, APSC

requesting the candidates, whose names were mentioned, to submit their essential

documents as indicated against their names, by 3:00 PM of 04.05.2017. The name of

the petitioner also figured in the said list along with 31 others and it was specified

therein that she is to submit 5(five) years Research Experience Certificate. A note

was also appended thereto indicating that all the documents relating to educational

qualification must be issued on or before the closing date of the advertisement, i.e.

20.02.2017.

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16. In Clause-d of “How to fill up the form”, an opportunity was given to the

candidates to submit the documents such as caste/age/pass certificates if those were

not submitted earlier within 10(ten) days from date of a notification to be issued in

that regard. It was also indicated that the candidature of a candidate would be

rejected only when a candidate fails to furnish the same within the stipulated period

of time. In terms of Clause-d of “How to fill up the form”, notification dated

18.07.2011 was issued indicating that the petitioner is required to submit Research

Experience Certificate of 5(five) years. In the said list of 28.04.2017, name of 31

candidates had also appeared. The respondent No.6 accordingly had submitted the

experience certificate dated 01.12.2016 issued by the Ph.D. Supervisor. The said

certificate goes to show that she was admitted in the said course in the year 2011

and had successful completed on 07.11.2016. The submission of Mr. M. Choudhury

that Clause-d of “How to fill up the form” of the advertisement did not prescribe that

an opportunity would be granted to submit experience certificate also and, therefore,

the APSC was wrong in issuing the notification dated 18.07.2011 requiring the

petitioner and other 30 candidates, is found to be devoid of any merit. Clause-d of

“How to fill up the form” is not exhaustive and it does not indicate that only in the

event caste/age/pass certificates are found short, an opportunity to submit the same

will be extended. It provides that caste/age/pass certificate etc. can be submitted

within 10(ten) days of the notification to be issued in the aforesaid context. The

word “etc.” takes within its fold any document that is required to be submitted along

with the application form. Clause-d of “How to fill up the form” was incorporated in

the advertisement to enable the candidates to supply the requisite documents in

case they were found short on scrutiny. The idea is not to eliminate a candidate on

the ground of some defect in the application form or in the enclosures thereto. Only

when a candidate fails to submit the requisite documents inspite of opportunity

granted, then only a candidature of such candidate is liable to be rejected.

Therefore, I am unable to accept the submission of Mr. Choudhury that the APSC

committed manifest illegality in accepting the application of the respondent No.6.

17. A perusal of the letter dated 07.01.2011 annexed as Annexure-B to the

additional affidavit filed on 28.07.2017 goes to show that the respondent No.6 was

admitted to the Ph.D. Programme- Spring, 2011 and she was asked to report to the

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Head of the Department of Molecular Biology and Biotechnology during 9:30 AM to

12:30 PM on 17.01.2011 or 18.01.2011. She was required to pay Rs.12,269/- for full

time category and the respondent No.6 had deposited the said amount on

12.01.2011 as would be evident from Annexure-C, which is a fee payment challan.

Annexure-G to the application for vacating stay is a provisional certificate certifying

that the respondent No.6 had qualified for the Degree of Doctor of Philosophy

(Ph.D.) in the year 2016. The certificate is dated 19.12.2016. As on Annexure-G,

registration for Ph.D. is shown to be of the year 2012, Mr. Choudhury has argued

that when the advertisement was issued, the respondent No.6 could not have

research experience for 5(five) years. The submission is without substance as it is

manifest that the respondent No.6 was admitted into the Ph.D. Programme on

17.01.2011. Registration number assigned by the University cannot determine the

commencement of the course. Annexure-F dated 26.07.2011 and Annexure-G dated

04.08.2011 of the additional affidavit filed in the writ petition are certificates issued

by the Controller of Examinations, Tezpur University and Head, Department of

Molecular Biology & Biotechnology, respectively, certifying that the respondent No.6

joined the Department on 17.11.2011. The respondent No.6 had submitted her Ph.D.

thesis on 17.06.2016.

18. While the petitioner is M.Sc. in Biotechnology, the respondent No.6 had

obtained M.Sc. Degree in Molecular Biology & Biotechnology from Tezpur University.

Submission was advanced by Mr. Choudhury that the respondent No.6 does not

have the essential qualification of M.Sc. Degree in Biotechnology. In this connection,

he had submitted that the APSC ought not to have allowed participation of the

respondent No.6 in the selection process by deviating from the prescribed

qualification.

19. In Dr. Krushna Chandra Sahu (supra), the Supreme Court had

reiterated the proposition that the Selection Committee does not have the inherent

jurisdiction to lay down the norms for selection and such power cannot be assumed

by necessary implication. It was further held that the Selection Committee does not

have any power to add to the required qualifications. It was also held that if

statutory rules have been made but they are silent on any subject or point in issue,

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the omission can be supplied and the rules can be supplemented by executive

instructions.

20. In B. Swapna (supra), it was laid down that once a process of selection

starts, the prescribed selection criteria cannot be changed and the logic behind the

same is based on fair play. It was further held that the power to relax the eligibility

condition, if any, to the selection must fairly be spelt out and in absence thereof,

cannot be exercised.

21. In Mohd. Sohrab Khan (supra), the post advertised was Lecturer in

Chemistry and the essential qualification prescribed was a First Class Master‟s Degree

in the appropriate branch of teaching post in Humanities and Sciences. While the

appellant before the Supreme Court, i.e. Mohd. Sohrab Khan, had a First Class

Master‟s Degree in Chemistry (Pure), another candidate, namely, Merajuddin Ahmed

had First Class Master‟s Degree in Industrial Chemistry. The selection Committee

selected Merajuddin Ahmed on the ground that he would be more suitable to the

aforesaid post as he held a Master‟s Degree in Industrial Chemistry, which, according

to it, would be most suited to teach the particular subject. The appointment offered

to Merajuddin Ahmed was set aside by the Division Bench of the High Court holding

that the course of the aforesaid 2(two) subjects are quite different and distinct.

However, no direction was issued to appoint Mohd. Sohrab Khan who was placed at

serial No.2 in the select list. Having regard to the advertisement issued, the Supreme

Court held that the post advertised was meant for a person belonging to Pure

Chemistry Department for if it were otherwise, then it would have been so

mentioned in the advertisement itself that a person holding a Master‟s Degree in

Industrial Chemistry should only apply or that a person holding such a Degree could

also apply along with other persons, which was not the case. It was, accordingly,

held that the Selection Committee as also the University changed the rule in the

midstream which was not permissible.

22. In Ganapath Singh Gangaram Singh Rajput (supra), applications

were invited for filling up of various posts in different subjects including the post of

Lecturer in MCA. The advertisement required Post-Graduate Degree in the “relevant

subject”. The Supreme Court has held that “relevant subject” in the context

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aforesaid would mean Post-Graduate Degree in MCA and for appointment to the post

of Lecturer in MCA, the Master‟s Degree in Mathematics is not the relevant subject.

As the appellant before the Supreme Court did not have the Master‟s Degree in

Computer Application, the Supreme Court held that he was not entitled to be

considered for appointment as Lecturer in MCA.

23. In Nagaland Public Service Commission (supra), the prescribed

qualification in the advertisement was M.SC in the subject concerned. The post

involved was the post of Lecturer in Chemistry. The appellant before the Supreme

Court was M.Sc. in Biochemistry and his contention that Biochemistry is Chemistry for

all purposes was repelled as what was prescribed is M.Sc. in Chemistry only without

any further description and accordingly held that the Public Service Commission was

not right on completing the selection based on the opinion sought from the expert

that Biochemistry is Chemistry for all purposes. It was also held that the Public

Service Commission is only to go by the qualification prescribed and it cannot

improve upon that.

24. The factual matrix of the aforesaid cases is different from the present

case. M.Sc. Degree of the respondent No.6 was in respect of Molecular Biology and

Biotechnology. No doubt the Degree is also in respect of Molecular Biology, but the

same cannot detract the fact that M.Sc. Degree was in respect of the Biotechnology

also and, therefore, in the context of the case when a subject is very much part of

the M.Sc. Degree, it cannot be said that the respondent No.6 did not meet the

essential eligibility criteria.

25. The Expert, namely, the respondent No.7, was deputed by the

Government of Assam. The learned senior counsel for the petitioner had submitted

that the respondent No.7 did not meet the requirement of an Expert as he joined as

an Assistant Professor only on 17.11.2015 and his research area being in the field of

Avian Photobiology, etc. The argument is not well founded. In Black‟s Law

Dictionary, 5th Edition, „Expert‟ is defined as one who is knowledgeable in specialised

field, that knowledge being obtained from either education or personal experience or

one who by habits of life and business has peculiar skill in forming opinion on subject

in dispute. The learned senior counsel for the petitioner has not been able to show

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that to be invited as an Expert, he must have working experience of a minimum

number of years.

26. The Expert is an Assistant Professor of Department of Zoology. The

essential educational qualification for the post in question is M.Sc. in Botany/Zoology

/Anthropology (Physical)/Biotechnology. It is not the case set up by the writ

petitioner that the Expert was not an M.Sc. in any of the above subjects. It may be

that the Expert had specialisation in Avian Photobiology but the core subject

nonetheless is Zoology.

27. In Dr. Triloki Nath Singh (supra), the Supreme Court had held that

subject of Hindi Language and Literature and the subject of Linguistics are entirely

separate subjects of study. The prospectus of the University has made it abundantly

clear that separate courses of study are prescribed for MA Part-I or Part-II in respect

of Hindi on the one hand and Linguistic on the other hand. The Supreme Court also

noted that Explanation-II of Section 31(5)(a) of the Uttar Pradesh State Universities

Act, 1973 laid down that where the post of teacher to be selected is common to more

than one subject of study, in that case, the expert may belong to either of such

subjects of study. The ratio of the aforesaid judgment is squarely applicable in the

instant case and, therefore, the submissions advanced regarding incompetence of

Expert is without any merit.

28. The petitioner, either during the interview process or immediately

thereafter, did not raise any issue with regard to the appointment of the respondent

No.7 as the Expert and only after the result of the interview is declared, the question

is sought to be raised regarding the manner of conducting the selection process and

appointment of the Expert.

29. In Madan Lal (supra), it was held by the Supreme Court that if a

candidate takes a calculated chance and appears in the interview, then, only because

the result of the interview is not palatable to him, he cannot turn round and

subsequently contend that the process of interview was unfair or the Selection

Committee was not properly constituted. The proposition laid down in Madan Lal

(supra) was reiterated in Madras Institute of Development Studies (supra).

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30. From the minutes of the meeting of the Commission held on 03.12.2016

at 11:30 AM, it is seen that under item number No.7 thereof on the subject of

“Allotment of marks in respect of Expert/Adviser instead of Grading”, the

Commission had opined that experts/advisers play a significant role in measuring the

comparative merit of the candidates and, therefore, they should be given equal

opportunity in terms of marks as that of the Chairman/Member to select the right

person through a transparent selection process. It will be appropriate to quote Item

No. 7: Allotment of marks in respect of Expert/Adviser instead of Grading, which is

as follows:

“The Commission observed that in the viva-voce interview in respect of

Direct Recruitment Expert/Adviser are supposed to award Grade out of five

gradings viz., „Excellent‟, „Very Good‟, „Good‟, „Fair‟ and „Average‟ and the value of

which has been determined by the Commission as enunciated in Rule 30 of the

APSC (Procedure and Conduct of Business) Rules, 2010. Rule 30 0f the aforesaid

Rules is given below:

30. In the viva-voce test, marks shall be allocated as below:

(i) 50 marks on academic/professional qualification/service experience

relevant to the post/preferential qualification.

(ii) 50 marks for subject knowledge and general bearing. Out of this 20

marks shall be for subject knowledge and remaining 30 marks for general

bearing.

The meeting deliberated that Experts/Advisers play a significant role in

measuring the comparative merit of the candidates and therefore, they

should be given equal opportunity in terms of marks with that of the

Chairman/Member to select the right person for the right job through a

transparent selection process as per the mandate of the Constitution of

India. Accordingly, after deliberations, the meeting came to the

conclusion that there shall be marking system in respect of Expert/Adviser

instead of Grading unless otherwise specified. Thus, out of 50 marks for

Subject Knowledge and General Bearing, henceforth, 25 marks in respect

of Expert/Adviser and 25 marks for the General Bearing shall be allocated.

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The meeting also decided that the Commission in its subsequent meetings

will deliberate on the modalities for awarding consensus marks by each interview

board.

However, the meeting was unanimous that to give effect to the aforesaid

decision, Rule 30 as aforesaid should be suitably amended. Accordingly, the

meeting entrusted Secretary to do the needful in this regard.”

31. For the post in question, the marks were to be allotted as follows:-

Marks allotted as follows

: 100

a. H.S.L.C. : 9

b. H.S.S.L.C. : 9

c. Degree : 10

d. Master Degree : 13

e. Experience:

(a) In a Forensic Science Institution

(b) Research/Analytical

:

1-3 years - 1 2 More than 3 years - 2

5-6 years - 1 2 More than 6 years - 2

f. Additional Qualification:

:

(a) PhD

: 2

(b) MPhil

: 1

(c) Paper Publication: 1 – 2 Papers - 1 More than 2 Papers - 2

: 2

g. General Bearing : 25

h. Knowledge of the Subject : 25

32. In respect of the petitioner, on subject Knowledge, the Expert had

awarded 18 marks to the petitioner and 23 marks to the respondent No.6. On

General Bearing, out of 25 marks, the petitioner was awarded 20 marks by the

Chairman and 18 marks by the Member. On the Head of Experience, the Chairman

and the Member both awarded to the petitioner 4 marks : 2 marks for experience for

being in the Forensic Science Institution for more than 3(three) years and 2 marks

for research/analytical experience of more than 6(six) years. On the component of

WP(C) No.3279/2017 Page 16 of 17

General Bearing, the Chairman and the Member had awarded 23 and 20 marks,

respectively, to the respondent No.6. The respondent No.6 was awarded 1 mark by

both the Chairman and Member on the Head of Experience. The average of the

marks given by the Chairman and the Member were taken into consideration and on

the component of General Bearing, while petitioner obtained 19 marks, the

respondent No.6 had obtained 21 marks.

33. The following are the marks obtained by the petitioner and the

respondent No.6 on the component of education qualification:

Parties HSLC HS Degree Master Degree

Petitioner 6.35 3.60 6.02 7.13

Respondent No.6 7.39 7.84 8.52 11.90

34. The petitioner obtained total marks of 66.43 rounded off to 66 marks while

the respondent No.6 obtained 84.65 marks rounded off to 85 marks. The position of

the petitioner in the select list is 50. Having secured the highest marks, the

respondent No.6 was placed at serial No.1 of the select list.

35. The argument advanced that not granting preference to the writ petitioner

is a vitiating factor, enough to interdict the selection process, according to the

perception of the Court, is untenable. The question of granting preference on the

basis of higher qualification or desirable qualification will arise in favour of a

candidate possessing such higher or desirable qualification if he is at par with other

candidates. In Bibhudatta Mohanty (supra), the Supreme Court has held that

where any rule or guideline provides preference in respect of some higher

qualification, it only means that all other requirements being equal, a person

possessing higher educational qualification will be preferred. It was further held that

it cannot, however, be considered as the sole criterion for preference in selection

and appointment.

36. In Sunil Kumar (supra), one of the questions that had arisen was the

extent of the power of judicial review to scrutinise the decisions taken by another

constitutional authority, namely, Public Service Commission, in the facts of the case.

WP(C) No.3279/2017 Page 17 of 17

In the absence of any clear malafides and the uniform application of the Principles

adopted by the Public Service Commission, the Supreme Court did not interfere with

the resolutions adopted by the Public Service Commission as such resolution did not

disclose any gross or palpable unreasonableness. In the instant case also, there is no

allegation of malafides and principles adopted by the Commission were applied

uniformly.

37. In view of the above discussions, I find no merit in this writ application

and accordingly, the same is dismissed. No cost.

J U D G E

M. Sharma