JUDGMENT L. MOHAPATRA, J. - All the three writ petitions relate to selection of candidates for appointment to the post of Watch and Ward in the Orissa Legislative Assembly. W.P.(C) No.7753 of 2009 and W.P.(C) No.3229 of 2004 have been filed by the unsuccessful candidates challenging the selection whereas W.P.(C) No.4744 of 2009 has been filed by the successful candidates praying for issuance of appointment letters. 2. The Orissa Legislative Assembly Secretariat issued an advertisement inviting applications for appointment to different posts including three posts of Watch and Ward. Out of the said three posts meant for Watch and Ward, one was for unreserved male candidate, one for SESC male candidate and one for SESC woman candidate. In pursuance of the said advertisement, the petitioners in all the three writ petitions and others submitted their applications for such appointment. A written test was conducted and the selected candidates were also subjected to a viva voce test. In relation to selection of candidates to different posts as advertised, there were serious allegations of favouritism covered by Media for which the Hon'ble Speaker of the Assembly appointed a retired Hon'ble Judge of this Court as Commission of Enquiry in exercise of powers conferred under Section 3, Sub-section (1) of Section 5 of the Commission of Enquiry Act, 1952 and a notification was issued in the gazette. On the basis of an opinion given by the Advocate General questioning the legality of the aforesaid notification, the State Government in exercise of the same power appointed Hon'ble Shri Justice ChittaRanjan Pal, a retired Judge of this Court as Commission of Enquiry, with effect from 22.7.2004 to enquire into and report. The said decision of the State Government was notified and published in the extraordinary gazette dated 15.9.2004. Some of the unsuccessful candidates including the petitioners sent affidavits to the Commission for necessary verification/scrutiny of all the Examination records relating to appointment to the posts of Receptionist Clerk, Watch and Ward. When the matter stood thus, the Hon'ble Speaker filed W.P.(C) No.905 of 2007 questioning the jurisdiction of the State Government in appointing a Commission of Enquiry to enquire into the affairs of the Orissa Legislative Assembly and prayed for quashing the order dated 10.1.2007 passed by the Commission to the effect that the allegation of favouritism shall be decided in the final report. The aforesaid writ petition was allowed by this Court holding that the notification dated 15.9.2004 appointing the Commission with retrospective effect from 22.7.2004 is illegal. The unsuccessful petitioners, therefore, had no other option except filing the above two writ petitions. 3. Shri Budhadev Routray, the learned Senior Counsel appearing for the petitioner in W.P.(C) No.7753 of 2009 and Miss Dipali Mohapatra, the learned counsel appearing for the petitioner in W.P.(C) No.3229 of 2004 challenged the selection of candidates to the post of Watch and Ward basically on two grounds. (1) The constitution of the Selection Committee was in contravention of the relevant rules. (2) Manipulations have been made in the answer sheets in order to show favour to the selected candidates. 4. So far as the first ground is concerned, the learned counsel appearing for the petitioners in the above two writ petitions drew attention of the Court to the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983 and referring to Rule 10, if was submitted by the learned counsel for the petitioners in the said two writ petitions that under the said Rule, the Speaker shall constitute a Selection Committee to advise Secretary in the matter of appointment to be made to the Class III and Class IV posts of the service by direct recruitment and by promotion. The Committee shall consist of more than one senior Officer of the Secretariat, other than the Secretary. Rule 10 of the aforesaid Rules is quoted below for convenience: "10. (1) The Speaker shall constitute a Selection Committee to advise Secretary in the matter of appointment to be made to the Class III and Class IV posts of the service by direct recruitment and by promotion. (2) The Committee shall consist of more than one Senior Officer of the Secretariat, other than Secretary. Provided that the services of an expert to aid to the committee in the matter of selection of candidates for appointment may be requisitioned as and when directed by the Speaker. (3) The Selection Committee may conduct tests and prepare list of candidates as per merit for direct recruitment to the post in the service. (4) The Selection Committee for recommending persons for appointment by promotion shall consider the C.C. Rs. (3) The Selection Committee may conduct tests and prepare list of candidates as per merit for direct recruitment to the post in the service. (4) The Selection Committee for recommending persons for appointment by promotion shall consider the C.C. Rs. of all eligible persons and prepare a list of candidates on the basis of merit and suitability with due regard to seniority." The learned counsel further referred to Annexure-15 series attached to the rejoinder affidavit filed in W.P.(C) No.7753 of 2009 and submitted with reference to the office note that initially a Selection Committee had been constituted on 30.6.2003 and Shri K. Samal who was earlier working as Joint Secretary was included as one of the members of the Selection Committee but he had been promoted to officiate as Secretary on 12.11.2002 and therefore, in terms of Rule 10 of the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983, he could not have been a member of the Selection Committee. The Selection Committee having been constituted in contravention of the aforesaid Rules, the entire selection process is vitiated. So far as manipulation in the answer sheet is concerned, this Court had called upon the learned counsel appearing for the Orissa Legislative Assembly to produce the records but it was submitted before the Court that the said records have been submitted before Justice C.R. Pal Commission. The learned counsel for the State intimated the Court that records have been received from the Orissa Legislative Assembly by the Commission but the answer sheets are not available in the record. We, therefore, called upon the learned counsel to produce the records and on verification of records we also did not find the answer sheets. Under these circumstances whether an adverse inference can be drawn against the Orissa Legislative Assembly or not has to be taken note of at the time of dealing with this submission of the learned counsel for the petitioners appearing for the unsuccessful candidates. 5. The learned counsel appearing for the Orissa Legislative Assembly and the learned counsel appearing for the successful candidates submitted that though Shri K. Samal had been promoted to officiate as the Secretary by the time the Selection Committee was constituted, he had expressed his unwillingness to participate in the selection process and therefore, his inclusion in the Selection Committee has not materially affected the selection process. It was also contended by the learned counsel appearing for the said parties that the answer sheets had been submitted before the Commission and if the same are not available in the record of the Commission, no adverse inference can be drawn against' the Orissa Legislative Assembly for non-production of the answer sheets. 6. Out of the two grounds taken by the learned counsel appearing for the unsuccessful candidates, if the petitioners succeed in the first ground taken in the writ petition, it may not be necessary to consider the second ground. As quoted earlier Rule 10 of the aforesaid Rules clearly provides that the Selection Committee shall consist of more than one senior officer of the Secretariat, other than the Secretary. From Annexure-15 series attached to the rejoinder filed in W.P.(C) No.7753 of 2009 dated 6.9.2010 it appears that initially a Selection Committee had been constituted with the following officers as its members: 1. Shri K. Samal, Joint Secretary 2. Shri B.K. Khadenga, Deputy Secretary 3. Shri B.N. Bhoi, Under Secretary 4. Shri A.K. Sarangi, Advisor to Speaker Shri K. Samal, Joint Secretary having been allowed to officiate as Secretary, a suggestion was made on 30.6.2003 to reconstitute the Selection Committee. On 2.7.2003, the Hon'ble Speaker approved the constitution of the new Committee from which Shri K. Samal had been dropped. It is, therefore, clear from the said note sheet in Annexure-15 series that Shri K. Samal had been included as a member of the Selection Committee initially when he was working as Joint Secretary. From Annexure-16 series to the said affidavit, it appears that by notification dated 12.11.2002, Shri Samal was allowed to officiate as Secretary of the Orissa Legislative Assembly and he assumed charge of the said post on 12.11.2002 in the forenoon. Therefore, the following dates are important to resolve the first issue. 12.11.2002 Shri K. Samal, Joint Secretary, Orissa Legislative Assembly who had been included as a member of the Selection Committee was allowed to officiate as Secretary of Orissa Legislative Assembly from the date, he assumed charge. 12.11.2002 Shri K. Samal assumed charge of the office of the Secretary, Orissa Legislative Assembly. 18.5.2003 The written test was conducted. 2.7.2003 The constitution of the new Selection Committee was approved by the Hon'ble Speaker. 28.1.2004 The interview was conducted. 12.11.2002 Shri K. Samal assumed charge of the office of the Secretary, Orissa Legislative Assembly. 18.5.2003 The written test was conducted. 2.7.2003 The constitution of the new Selection Committee was approved by the Hon'ble Speaker. 28.1.2004 The interview was conducted. It is, therefore, clear that on the date the written test was conducted Shri K. Samal, who was a member of the Selection Committee was working as the Secretary of the Orissa Legislative Assembly and accordingly constitution of the said Selection Committee and continuance thereof even after Shri K. Samal was allowed to officiate as Secretary was in contravention of Rule 10 of the aforesaid Rules. The question as to whether he participated in the selection process or not is immaterial as the constitution of the Selection Committee though initially was in accordance with the Rules had become invalid after Shri K. Samal was allowed to officiate as the Secretary of the Orissa Legislative Assembly. Written test had been completed by the time the new Selection Committee was constituted. Therefore, on this ground alone, both the writ petitions, i.e. W.P.(C) No.7754 of 2009 and W.P.(C) No.3229 of 2004 have to succeed. Apart from the above illegality, another interesting feature has also come to our notice. From Annexure-8 series attached to the writ petition in W.P.(C) No.7753 of 2009 it appears that for three posts of Watch and Ward, 850 number of candidates were called for written test and 36 number of candidates were called for viva voce test. 32 number of candidates appeared at the viva voce test held on 28.1.2004. Though 32 candidates appeared in the viva voce test, the list of selected candidates shows that 36 candidates had been selected on the basis of the marks secured in the written test and the interview. Annexure-9 series indicates names, roll numbers and the marks secured by the said 36 candidates both in written test and interview. When the office note clearly shows that 36 numbers of candidates were called for viva voce test out of whom 32 only appeared in the viva voce test, it is not understood as to how a panel of 36 selected candidates was prepared on the basis of the marks obtained in the written test and the interview. If the office note is correct, 4 candidates who had not appeared in the interview have been included in the list of selected candidates. If the office note is correct, 4 candidates who had not appeared in the interview have been included in the list of selected candidates. Names of both the petitioners in W.P.(C) No.4744 of 2009 find place in the list of selected candidates. The learned counsel for the Orissa Legislative Assembly could not offer any explanation as to how a panel of 36 candidates had been prepared on the basis of marks obtained in the written test and interview when it is the case of the Orissa Legislative Assembly that only 32 candidates appeared in the interview. For the reasons stated above, the writ petition has to succeed on the following two grounds: (1) Though the Selection Committee had initially been constituted in terms of Rule 10 of the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, after one of its members Shri K. Samal was allowed to officiate as Secretary of the Orissa Legislative Assembly, the Selection Committee should have been reconstituted. The same Selection Committee having continued till the written examination was over, continuance of such Selection Committee is in contravention of Rule 10 of the aforesaid Rules. (2) Though the office note clearly shows that only 32 candidates appeared in the interview, a panel of 36 selected candidates has been prepared on the basis of marks obtained in the written test and the interview. We, therefore, do not fee it necessary to go into the second ground taken by the learned counsel appearing for the unsuccessful candidates. 7. For the reasons stated above, we hold that the entire selection process for selection of three candidates to be appointed against the three posts advertised for Watch and Ward is vitiated and accordingly quashed. It is open for the Orissa legislative Assembly to fill up the posts through a fresh selection. W.P.(C) No.7753 of 2009 and W.P.(C) No.3229 of 2004 are consequently allowed and W.P.(C) No.4744 of 2009 is dismissed. The records produced by the learned counsel for & the State be immediately returned to the office of the Justice C.R. Pal Commission. I agree. Ordered accordingly.