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Gauhati High Court · body

2013 DIGILAW 276 (GAU)

Moitreyee Das v. State of Assam And Ors.

2013-04-30

UJJAL BHUYAN

body2013
1. By way of this petition under article 226 of the Constitution of India, petitioner seeks quashing of appointment orders of respondent Nos. 4 and 5 dated 5.2.2011 issued by the Commissioner and Secretary to the Government of Assam, Tourism Department (Annexures Dl and D2, respectively to the writ petition) appointing the said respondents as Tourist Information Officer under the Tourism Department, Government of Assam. 2. Facts of the case, as projected in the writ petition, may be briefly noted. 3. Petitioner is a graduate in arts from Mumbai University. She has also done her masters in Economics from Mumbai. Further, she is a post graduate diploma holder in Management and in Human Resources from Indira Gandhi National Open University (IGNOU). From 1997 to 2002, petitioner worked as a faculty member in Assam Institute of Management, Guwahati. Since September, 2002, petitioner has been working as Assistant Tourist Information Officer in the Assam Tourism Development Corporation Limited. 4. Assam Public Service Commissioner (APSC) issued advertisement No. 4/2009 dated 16.7.2009 inviting applications from eligible candidates to fill up various posts including 6 posts of Tourist Information Officer under Tourism Department, Government of Assam. Of the 6 posts advertised, 4 were earmarked for the reserved categories and 2 posts were unreserved, i.e., open for all categories. The educational qualifications prescribed for the post of Tourist Information Officer was graduation in arts, science or commerce from a recognized university or a 2 years post graduate degree or diploma in Tourism and Travel Management or a 3 years diploma in Hotel Management and Catering Technology from a recognized /approved institute. 5. Petitioner being qualified for the post of Tourist Information Officer, applied for the said post pursuant to the above advertisement. Interview was held on 3.9.2010 and the select list was published by the APSC on 1.1.2011. 6. Petitioner’s name did not find place in the select list. She applied for and obtained relevant information and documents under the Right to Information Act, 2005. It could be seen there-from that respondent Nos. 4 and 5 had secured 81 and 79 marks respectively out of 100 in the interview while the petitioner secured 78 marks. Therefore, respondent Nos. 4 and 5 were selected and consequently appointed: 7. Alleging that there was no proper assessment of the relative merits of the candidates and consequently no fair selection, petitioner has questioned the selection and appointment of respondent Nos. Therefore, respondent Nos. 4 and 5 were selected and consequently appointed: 7. Alleging that there was no proper assessment of the relative merits of the candidates and consequently no fair selection, petitioner has questioned the selection and appointment of respondent Nos. 4 and 5. 8. Petitioner has contended that though 2 marks were given to both respondent Nos. 4 and 5 under the heading “service experience”, no experience certificates were furnished by them. She has been given lesser marks under the heading “knowledge of subject”, though she has substantial knowledge of the subject as she is serving as Assistant Tourist Information Officer since 2002. Her academic credentials are far superior than respondent Nos. 4 and 5 and, therefore, more marks should have been allotted to her under the heading “academic qualification”. Petitioner has alleged that selection was not fair and was made arbitrarily. 9. Respondent Nos. 1 and 2 have not filed affidavit. 10. Respondent No. 3, i.e., APSC has filed counter affidavit. Stand taken is that 6 posts of Tourist Information Officer were advertised, out of which 4 posts were reserved for the reserved categories and 2 posts were open, i.e., unreserved. Altogether 389 candidates were interviewed by the APSC with the help of experts/advisors. 6 candidates were recommended in order of merit category wise vide select list dated 31.12.2010. It is stated that the selection was made purely on merit basis and marks were allotted under different heads like “academic qualification”, “service experience”, “subject knowledge” and “general bearing” on the basis of norms/marking pattern fixed by the APSC for selection to the post of Tourist Information Officer. The allegation of extraneous consideration having influenced the selection is denied. Marks allotted under the heading “subject knowledge” were; by the experts. 11. Respondent No. 4, who is one of the selected candidates and subsequently appointed, has filed affidavit. He has contended that petitioner has challenged only a part of the selection inasmuch as she has challenged the selection of only respondent Nos. 4 and 5, which is not permissible. On this ground alone writ petition should be dismissed. He has justified his selection as reflective of his better performance in the interview. He has contended that though he is a reserved category candidate belonging to Other Backward Class (OBC) but considering that he was ranked 1st in the selection, he was placed in the unreserved category. On this ground alone writ petition should be dismissed. He has justified his selection as reflective of his better performance in the interview. He has contended that though he is a reserved category candidate belonging to Other Backward Class (OBC) but considering that he was ranked 1st in the selection, he was placed in the unreserved category. Further stand taken is that marks were allotted by an expert selection committee and petitioner has not made any specific allegation against any member of the selection committee. Writ petition is based only on apprehension expressed by the petitioner that the selection process was vitiated by extraneous consideration. Nothing has been placed on record to substantiate her claim. He has stated that all relevant documents were submitted by him along with his application including documents relating to service experience. Respondent No. 4 has stated that following his appointment on 5.2.2011, he has joined in the post of Tourist Information Officer and is continuing as such. 12. Similar affidavit has been filed by respondent No. 5. She has contended that although 6 candidates were selected by the APSC, petitioner has made only 2 of the selected candidates, including herself, as respondents in the writ petition, leaving out the remaining 4 successful candidates. Therefore, the writ petition suffers from non-joinder of necessary party. While denying the allegation made by the petitioner against her selection, respondent No. 5 has contended that marks were allotted in the interview on the basis of norms/marking pattern fixed by the APSC for selection to the post of Tourist Information Officer. She has denied the allegation that she had no service experience. According to her, she had service experience which was considered by the authority. 13. Petitioner has filed reply affidavit to the affidavit filed by respondent No. 4. She has stated that she is aggrieved by the selection of two general category candidates out of the 6 posts advertised, 4 of which were reserved for the reserved categories. Her challenge is confined to the selection of the two general category candidates and, therefore, only those two candidates have been made respondents. Regarding claim of respondent No. 4 as OBC category candidate, petitioner has contended that respondent No. 4 did not furnish any document claiming OBC status. Since he did not apply under OBC category, therefore, question of considering him as OBC candidate did not arise. Regarding claim of respondent No. 4 as OBC category candidate, petitioner has contended that respondent No. 4 did not furnish any document claiming OBC status. Since he did not apply under OBC category, therefore, question of considering him as OBC candidate did not arise. It is further stated that respondent No. 4 did not submit any document relating to service experience as would be evident from the documents furnished to her under the Eight to Information Act, 2005. According to her, selection of respondent No. 4 was not based on relevant consideration. 14. Heard Mr. D.P. Chaliha, learned Senior counsel assisted by Mr. U.P. Chaliha, learned counsel for the petitioner. Also heard Ms. B. Dutta, learned Government Advocate, Assam for respondent Nos. l and 2, Mr. C. Baruah, learned Standing Counsel, APSC for respondent No. 3, Mr. R. Dubey, learned counsel for respondent No. 4 and Mr. G. Baishya, learned counsel for respondent No. 5. 15. Mr. D.P. Chaliha, learned senior counsel for the petitioner submits that there was no proper and fair assessment of the relative merit of the petitioner. Allotment of marks particularly under the headings “subject knowledge” and “general bearing” were most arbitrary. While petitioner’s better academic standing is reflected in her securing more marks than respondent Nos. 4 and 5 under the heading “academic qualification”, though the petitioner still has grievance regarding allotment of marks to respondents Nos. 4 and 5 under the said heading, the allotment of marks to the said respondents under the heading “subject knowledge” and “general bearing” were totally arbitrary. Both the said respondents were allotted 100% marks in the two categories, being 20 out of 20 in the category “subject knowledge” and 30 out of 30 in the category “general bearing” whereas the petitioner was allotted 18 and 24 marks respectively in the two categories which ultimately affected the total marks obtained by the three candidates. While respondent No. 4 secured a total of 81 marks out of 100, respondent No. 5 secured 79 and petitioner secured 78 marks. Contending that there was no justification for awarding such exceedingly high marks to respondent Nos. 4 and 5 in the two categories, learned Senior counsel submits that the matter requires judicial scrutiny as it is apparent that the selection was not fair and proper. 16. Ms. B. Dutta, learned Government Advocate has produced the part of the record available with the Department. 4 and 5 in the two categories, learned Senior counsel submits that the matter requires judicial scrutiny as it is apparent that the selection was not fair and proper. 16. Ms. B. Dutta, learned Government Advocate has produced the part of the record available with the Department. She submits that the selection was conducted by the APSC and the Government acted on the recommendation of the APSC. 17. Mr. C. Baruah, learned Standing Counsel, APSC submits that APSC had conducted the selection as per the norms prescribed by it. He submits that the relative suitability of the candidates were fairly assessed by the interview board which also included a subject expert. He submits that the court may not sit over the decision of the selection committee like an appellate authority and substitute its own assessment for that of the selection committee. He has also produced the relevant selection record for scrutiny of the court. 18. Mr. R. Dubey and Mr. G. Baishya, learned counsel for respondent Nos. 4 and 5 in their identical submissions have contended that the selection was for 6 posts of Tourist Information Officer. After the interview, APSC recommended 6 candidates for appointment against the 6 advertised vacancies. But the petitioner has challenged the selection and appointment of only two of the candidates, i.e., respondent Nos. 4 and 5, leaving out the other selected candidates. When selection is challenged, all the selected candidates are necessary parties. Therefore, the writ petition is hit by non-joinder of necessary parties and for such vital defect, the writ petition should be dismissed. Further submission is that petitioner had participated in the selection process and, therefore, it is not open for her to challenge the selection process after having been declared as unsuccessful candidate. They have placed reliance on the decision of the hon’ble Supreme Court in the case of Madan Lal and Ors. v. State of Jammu and Kashmir and Ors. (1995) 3 SCC 486 . They have also contended that selection of respondent Nos. 4 and 5 was justified and there is no reason to interfere with their selection. 19. In his reply, Mr. Chaliha submits that challenge in the writ petition is confined to selection of candidates under the unreserved category. v. State of Jammu and Kashmir and Ors. (1995) 3 SCC 486 . They have also contended that selection of respondent Nos. 4 and 5 was justified and there is no reason to interfere with their selection. 19. In his reply, Mr. Chaliha submits that challenge in the writ petition is confined to selection of candidates under the unreserved category. Therefore, impleading the remaining selected candidates under the reserved categories as respondents does not arise as petitioner being a general category candidate has no claim against the candidates selected under the reserved category. He submits that petitioner was subjected to an unfair and arbitrary treatment and she was illegally denied selection which may be looked into by this court. 20. Submissions made have been considered. I have also perused the record produced by both Ms. B. Dutta, learned Government Advocate and Mr. C. Baruah, learned Standing Counsel, APSC. 21. Since the private respondents have questioned the maintainability of the writ petition on two counts, namely, for non-joinder of necessary parties and on account of participating in the selection process and being an unsuccessful candidate, the same may be attended to at the very outset. 22. According to the said respondents, the advertisement was for 6 vacancies. Selection was also made of 6 candidates. Petitioner, instead of making all the selected candidates parties to the proceeding, has only made the present two respondents parties. They have contended that since the petitioner has questioned the fairness of the selection process, all the selected candidates should have been made parties. Therefore, there is non-joinder of necessary parties for which the court should decline to answer the writ petition. This submission is of no substance and deserves to be rejected. Though the advertisement was for 6 posts of Tourist Information Officer, 4 posts were ear-marked for the reserved category candidates. Only 2 of the posts were open for all categories. Though not expressly stated in the writ petition, it is evident from the documents on record and from the submissions made that petitioner is a general category candidate and had sought selection as such. Respondent Nos. 4 and 5 are the two candidates who were selected against the two un-reserved posts. In such circumstances, only the two candidates who were selected against the 2 unreserved posts i.e., respondent Nos. 4 and 5 are necessary parties. Respondent Nos. 4 and 5 are the two candidates who were selected against the two un-reserved posts. In such circumstances, only the two candidates who were selected against the 2 unreserved posts i.e., respondent Nos. 4 and 5 are necessary parties. The other 4 candidates, who belong to the reserved categories, would not be affected by the challenge as the petitioner cannot get any relief vis-a-vis those candidates. The objection on this count is accordingly rejected. 23. Coming to the next objection regarding petitioner being an unsuccessful candidate and, therefore, the court should not entertain the challenge to the selection at the instance of an unsuccessful candidate, the court is of the view that the rule that a candidate who had unsuccessfully participated in a selection would not be entitled to challenge the same is not to be understood to be an inflexible rule or an absolute bar, without any exception. Application of this rule would depend on the fact situation prevailing in each case. In a recent judgment dated 1.2.2013 passed in WP(C) No. 67/2011 (Shri Bipul Dutta and Ors. v. State of Assam and Ors.) this court had examined the above question and held as under : - “37. The decisions cited by the learned counsel for the respondents lays down the proposition that a candidate who had participated in the selection but was unsuccessful, would not be entitled to challenge the same subsequently. The above proposition is based on the principle of estoppel by conduct or acquiescence. Ordinarily, a person who participated in the selection process without making any grievance about the selection process, whether it is not in accordance with the Rules or about some unfairness or anomaly in the selection process, would be estopped from complaining later on that the .selection process was not in accordance with Rules or is vitiated by anomalies as he had taken a calculated chance in participating in the selection process and only after he found himself to have not been selected, instituted the challenge. 38. But the question is whether this rule that a candidate who had unsuccessfully participated in selection would not be entitled to challenge the same is an inflexible or absolute principle of law applicable in all situations without any exception? 39. 38. But the question is whether this rule that a candidate who had unsuccessfully participated in selection would not be entitled to challenge the same is an inflexible or absolute principle of law applicable in all situations without any exception? 39. In Raj Kumar (supra), the Apex Court held in the facts of that that the principle of estoppel by conduct or acquiescence had no application as the Government had committed glaring illegalities in the selection procedure and the entire procedure was found to be illegal. 40. This court in the case of Deboranjan Saikia and Ors. v. State of Assam and Ors., (2005) 3 GLR 659 was also confronted with a similar issue where locus of the petitioners, who were unsuccessful candidates, to maintain the writ petition was questioned. This court held that the rule that a candidate who had participated in a selection would not be entitled to challenge the same must be understood not to be an inflexible or absolute principle of law. It was held as under: - “10........It may be that a candidate who had knowingly participated in a selection cannot turn around at a later stage and challenge the award of marks given to him in the selection held or challenge the composition of the Selection Committee, as the case may be. But this court cannot understand the law to be one which debars a candidate, who had participated in a selection, from challenging the selection process in all circumstances. Exception to the above principle could be in a situation where there has occurred large scale illegalities in the selection held or in a situation where the selection has been held in a manner which is not prescribed by the statute. The above principles can be carved out by this court from a later decision of the Apex Court in Raj Kumar and others (supra). That apart, the circumstances in which a candidate had appeared in the selection held must also be taken note of by the court. In the present case the advertisement in question had clearly mentioned that the ad hoc appointees in service, like the petitioners, must appear in the examination, if they desire that their service should continue. That apart, the circumstances in which a candidate had appeared in the selection held must also be taken note of by the court. In the present case the advertisement in question had clearly mentioned that the ad hoc appointees in service, like the petitioners, must appear in the examination, if they desire that their service should continue. Above all, the challenge made in the present writ application being with regard to the selection being held contrary to the provisions of the Rules, I am of the view that the present is not a case where the petitioners are aggrieved by the award of low marks or the petitioners have espoused such individual grievances which should be considered by the court as debarring them from challenging the selection already held”. 41. In the present case, petitioners had immediately approached this court after short-listing of the candidates following the speed test on 28.12.2010. Petitioners have challenged the selection as being contrary to the provisions of the Rules, as well as on the ground of unfairness/manipulation in the selection. According to the petitioners, the anomalies were noticed only during the selection and thereafter. Information furnished under the Right to Information Act, 2005 lent weight to the challenge. Subsequent turn of events, namely, conducting scrutiny at the instance of the Department and observations of the scrutiny committee supported the case of the petitioners to a certain extent. The above rule, as rightly held by this court in Deboranjan (supra), is not to be understood to be an inflexible rule or an absolute bar. Application of the rule would, therefore, depend upon the fact situation obtaining in each case. In view of above, Court is of the view that the challenge instituted by the petitioners is maintainable, which should be decided on merit.” 24. The decision relied upon by the respondents in Madan Lal and Ors. (supra) stands on a different factual foundation. It was a case relating to selection of Munsiffs in the State of Jammu and Kashmir by the Jammu and Kashmir Public Service Commission. The selection comprised of written examination and viva voce test. A sitting judge of the Jammu and Kashmir High Court was part of the interview board which conducted the viva voce test. It was a case relating to selection of Munsiffs in the State of Jammu and Kashmir by the Jammu and Kashmir Public Service Commission. The selection comprised of written examination and viva voce test. A sitting judge of the Jammu and Kashmir High Court was part of the interview board which conducted the viva voce test. Petitioners in that case contended that they had fared well in the written test and also in the viva voce test but the results in the viva voce test did not match their performance. So the prayer made was for quashing of the viva voce test and to make selection on the basis of the written test alone or in the alternative, to conduct fresh viva voce test to assess the merit of the candidates objectively. It was in that context that the Apex Court held that the petitioners took a chance to get themselves selected in the oral interview and only because they did not emerge successful, they filed the writ petition. Facts of the present case are altogether different as would be evident from the facts narrated above and from the discussions made in the succeeding paragraphs. In such circumstances, the court is of the view that the challenge made by the petitioner requires a determination on merit. 25. The affidavit of the APSC indicates that the selection was confined to oral interview only. The interview was held for 100 marks. For academic qualifications, 45 marks were allotted, 2 marks for service experience and 3 marks for additional qualification. Knowledge of the subject had 20 marks whereas 30 marks were allotted for general bearing. The allotment of marks were as follows: - 1. HSLC15 2. HSSLC15 3. Degree or 2 years PG degree or Diploma in Tourism and Travel Management or 3 years Diploma in Hotel Management and Catering Technology. 15 4. Service experience 02 5. Additional qualification (relevant)03 6. Knowledge of the subject20 7. The allotment of marks were as follows: - 1. HSLC15 2. HSSLC15 3. Degree or 2 years PG degree or Diploma in Tourism and Travel Management or 3 years Diploma in Hotel Management and Catering Technology. 15 4. Service experience 02 5. Additional qualification (relevant)03 6. Knowledge of the subject20 7. General bearing 30 TOTAL 100 The affidavit of APSC further discloses that the Chairperson provided for grading of marks under the heading “knowledge of subject” for die expert advisor as under : - Very good - 20 Good - - 18 Average -- 16 Fair -- 14 As seen from the record, the marks obtained by the three candidates, i.e., respondent Nos.4, 5 and the petitioner under the different headings were as under: NameAcademic QualificationService ExperienceSubject Knowledge General BearingTotal Emon Choudhary (Rest. No. 4)292203081 Fatima Firdosha Akhtar (Rept. No. 5)272203079 Ms. Moitreyee Das (Petitioner)342182478 26. Thus it is seen that under the heading “service experience” all the three contesting candidates secured 2 marks, which is the maximum mark allotted for the said heading. While under the heading “knowledge of subject”, the two respondents were awarded 100% marks, i.e., 20 out of 20, petitioner was awarded 18. From the gradings noted above, it thus appear that the respondents were graded “very good” whereas the petitioner was graded “good”. Again under the heading “general bearing” both the respondents were awarded 100 % marks i.e. 30 out of 30 whereas petitioner was awarded 24 marks. 27. This court by order dated 8.10.2012 had sought clarification from the APSC as to how marks are given under the heads “general bearing” and “subject knowledge”. The APSC was also directed to produce the minutes of the selection. No clarification has been placed before the court as to how marks were given under the heads “general bearing” and “subject knowledge”. No minutes of the selection has also been produced. From the record, only thing that is available is a recommendation of 6 candidates signed by the Chairperson and two other members on 31.12.2010. The recommendation is accompanied by a “merit list” of 46 candidates signed by the Under Secretary on 30.12.2010. 28. Though the Chairman had issued an advisors grading for the expert indicating the equivalent marks for each grading to be awarded under the heading “knowledge of subject”, no such grading or criteria was mentioned for award of marks under the heading “general bearing”. 28. Though the Chairman had issued an advisors grading for the expert indicating the equivalent marks for each grading to be awarded under the heading “knowledge of subject”, no such grading or criteria was mentioned for award of marks under the heading “general bearing”. There is no indicative guideline or at-least nothing has been placed before the court as to how assessment and consequential award of marks were to be made under the heading “general bearing”. In a selection which is entirely based on interview, 45 marks were allotted for academic qualifications, 3 marks for relevant additional qualifications and 2 marks for service experience. Thus, out of 100 marks, there was objective criteria for allotment of 50 marks. Rest 50 marks were to be awarded for “knowledge of the subject” (20 marks) and for “general bearing” (30 marks). In respect of “knowledge of subject”, some gradings were mentioned with corresponding marks. But there was no such grading or objective criteria regarding the 30 marks for “general bearing”. This 50 marks, out of which there was no guideline at all for awarding 30 marks, played the most decisive role in the selection. A candidate may secure 50 marks out of 50 in the academic segment of the interview yet he may still fail the selection test on account of securing comparatively low marks in respect of the remaining 50 marks under the headings “knowledge of subject” and “general bearing”. This is precisely what has happened in the present case. Both the respondents secured cent percent marks in “general bearing” and “knowledge of subject” i.e., 50 out of 50 whereas petitioner secured 18 and 24 respectively, i.e., 42 out of 50, though she had secured more marks in the academic segment. This turned out to be most crucial considering the difference in the total marks of the three candidates, the difference between the petitioner and respondent No. 5 being only 1 mark. 29. Coming to the record, it is seen that the expert graded the petitioner as “good”, respondent No. 4 as “very good” and respondent No. 5 “v. good” under the heading “knowledge of subject”. In the case of respondent No. 5, though she has been graded “v. good” meaning “very good”, the way the word “v” has been written; it is clearly suggestive of subsequent insertion. In the case of respondent No. 5, though she has been graded “v. good” meaning “very good”, the way the word “v” has been written; it is clearly suggestive of subsequent insertion. As already noticed above, a change of grading from “good” to “very good” would result in additional 2 marks, which is most crucial considering the ultimate difference in marks between petitioner and respondent No. 5 being only 1 mark. 30. From a perusal of the original mark-sheets of interview, it is seen that there is clear overwriting in the marks allotted to the petitioner under the heading “general bearing” and consequently in the total marks. It clearly transpires that the figure 4 has been overwritten over the figure 5 to make it 24 from 25. Consequently, there is overwriting in the figure 8 in the column for total marks to make it 78. There is no initial of any member of the interview board below the above 2 figures overwritten. In case of marks allotted to respondent No. 5, it is also seen that there is clear overwriting in the marks awarded under both the heading “subject knowledge” and “general bearing” and consequently in the total marks allotted. The overwriting is more pronounced in the marks allotted under the heading “subject knowledge” inasmuch as from 18 it was changed to 20, thereby changing the total marks from 77 to 79. These changes were most crucial to the final outcome as the difference in total marks obtained by respondent No. 5 and the petitioner is only 1 mark. Here also there is no initial of the expert below such overwriting. However, there is no such overwriting in the markings of respondent No. 4 though as already noticed above, he was also awarded 100% marks under both the headings. 31. Up to this stage, two things are clearly discernible from the record. Firstly, awarding of 100% marks to the respondent Nos. 4 and 5 under the headings “subject knowledge” and “general bearing” without any guidelines. This may justifiably raise reasonable apprehension in the minds of the candidates about the fairness of the assessment carried out by the APSC. Being a constitutional body, APSC has the solemn duty to conduct examinations for recruitment to public services in a fair and impartial manner. The selection must not only be fair and impartial but must be seen to be so. Being a constitutional body, APSC has the solemn duty to conduct examinations for recruitment to public services in a fair and impartial manner. The selection must not only be fair and impartial but must be seen to be so. Public trust and confidence in the fairness and impartiality of selection is the essence of the selection process for recruitment to public employment. If the people lose faith in the fairness and impartiality in the functioning of APSC, whose credibility has already been eroded considerably in recent times for various reasons, it will deal a body blow to the system of governance in the State itself. [See the observations of this court in Ratul Kumar Das and Ors: v. State of Assam and Ors. 2009 (4) GLT 648]. In a selection which is based entirely on oral interview, allotment of 30 marks under the heading “general bearing” out of a total of 100 marks, that top, without laying down any guideline or instruction as to how marks under the said heading are to be awarded, appears to be disproportionately high having a decisive bearing on the final outcome, of the selection, and may require re-consideration by the APSC. This is an aspect which the court hopes APSC will consider in all its seriousness. Secondly, the manner in which marks have been overwritten in respect of petitioner and respondent No. 5 which led to change in the final result raises grave doubt about the fairness in the allotment of marks to the said 2 candidates. On the face of it, any reasonable person will have grave suspicion about the bona fides of the exercise. If selection is carried out in this manner, coupled with the observations made above, it will completely erode the faith of the people in the APSC. But suspicion howsoever strong cannot take the place of hard evidence and, therefore, the court would restrain itself from interfering with the selection on this ground. 32. Coming to the files containing the applications of respondent Nos. 4 and 5, it is seen that column 13 of the application form related to experience, particulars of which were required to be furnished. Supporting documents were also required to be attached. In case of both respondent Nos. 4 and 5, the said column had not been filled up. 32. Coming to the files containing the applications of respondent Nos. 4 and 5, it is seen that column 13 of the application form related to experience, particulars of which were required to be furnished. Supporting documents were also required to be attached. In case of both respondent Nos. 4 and 5, the said column had not been filled up. In the details of enclosures, respondent No. 4 had disclosed enclosing of the following certificates: — (1) OBC Certificate (2) Birth Certificate (3) Character Certificate - 2 (4) Certificate of sports A perusal of the file also does not show furnishing of any document regarding service experience of respondent No. 4. Similarly, respondent No. 5 had listed the following documents as enclosed with the application form: - (1) Original treasury challan (2) Pass Certificate of HSLC Examination (3) Pass Certificate of HS Examination (4) Pass Certificate of BA Examination (5) Pass Certificate of MTA Examination (6) Mark-sheets of HSLC to MTA Examination (7) Two signed passport photographs (8) Two character Certificates. A perusal of the file containing her application form and documents also does not show submission of any such certificate of service experience. 33. Thus, both respondent Nos. 4 and 5 did not claim any service experience in their application forms and also did not enclose any document indicating any experience in service. Though they have stated in their affidavits that they had service experience, no such document has been enclosed by the said respondents to their affidavits filed in the present proceeding. But as already noticed above, both respondent Nos. 4 and 5 were awarded 2 marks for “service experience”, which is the maximum mark fixed under the said heading. This award of 2 marks under the heading “service experience” to both respondent Nos. 4 and 5 was totally unjustified and was awarded without any basis as the said respondents did not deserve the said 2 marks. On the other hand, petitioner is working as an Assistant Tourist Information Officer under the Assam Tourism Development Corporation Limited, a Government of Assam Undertaking since 2002. The answering respondent, have ‘admitted this fact by offering no comments in their counter affidavits to this assertion of fact by the petitioner. Therefore, awarding of 2 marks to the petitioner is justified. Since 2 marks were unjustifiably given to respondent Nos. The answering respondent, have ‘admitted this fact by offering no comments in their counter affidavits to this assertion of fact by the petitioner. Therefore, awarding of 2 marks to the petitioner is justified. Since 2 marks were unjustifiably given to respondent Nos. 4 and 5, the same is required to be deleted from the total marks awarded to them. After deduction of the said marks, the following position emerges: “l. Respondent No. 4 (Emon Choudhury) 81-2 = 79 2. Petitioner (Moitreyee Das) 78 3. Respondent No. 5 (Fatima Firdosha Akhtar) 79-2 = 77 34. Thus, selection of respondent No. 5 is unjustified, she having secured lesser marks of 77 as against 78 secured by the petitioner. 35. Therefore, selection of respondent No. 5 is declared as illegal. Consequently, her appointment to the post of Tourist Information Officer becomes legally untenable. Accordingly, both her selection and appointment are set aside and quashed. 36. Since petitioner had secured more marks than respondent No. 5, her name would now stand included in the list of recommended candidates in place of respondent No. 5. In view thereof, respondent No. l shall now issue the consequential appointment order of the petitioner within a period of 3 weeks from today. 37. While intervening in the matter in the above manner, the court is fully conscious of its limitations while subjecting a selection process to judicial scrutiny in exercise of the power of judicial review. While it is true that the court is not to act as an appellate authority over the decision of the selection committee, but at the same time, it cannot also shut its eyes when glaring illegalities are apparent on the face of the record. 38. Writ petition is allowed. 39. For the manner in which the APSC had conducted itself, cost of Rs. 25,000 is imposed on the APSC, which shall be paid to the petitioner within a period of 3 weeks from today. 40. Original records are returned back to Ms. B. Dutta and Mr. C. Baruah respectively.