Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 69 (GAU)

Bipul Dutta and Ors. v. State of Assam and Ors.

2013-02-01

UJJAL BHUYAN

body2013
Ujjal Bhuyan,J This is an application under article 226 of the Constitution of India. Matter relates to selection to the post of Stenographer Grade-II in the Assam. Secretariat, both in English and in Assamese. 2. Because of filing of several applications, affidavits and objections, the brief has become somewhat unwieldy. However, attempt would be made to restrict narration of facts to the bare essentials for adjudication of the lis. 3. Facts of the case, shorn of details, may be briefly noted. 4. The 11 petitioners had initially filed the writ petition for quashing of order dated 28.12.2010 passed by the Secretary to the Government of Assam, Secretariat Administration (Establishment) Department declaring 50 candidates to have passed the English stenography speed test and 9 candidates the Assamese stenography speed test, making them eligible for the composition test and for a direction to the respondents not to hold English composition test. 5. An advertisement dated 15.3.2010 was issued by the Member Secretary, Board for Selection for Stenographer and Special Officer and Ex-officio Deputy Secretary to the Government of Assam, Secretariat Administration (Establishment) Department inviting applications in prescribed form for filling up 33 Nos. of posts of Stenographer Grade-II (English) and 3 Nos. of posts of Stenographer Grade-II (Assamese) in the Assam Secretariat. It was stated that speed test at 120 words per minute in English and 100 words per minute in language stenography would be conducted on the dates to be notified later on. The said advertisement was published in the daily news paper "The Assam Tribune" on 18-03-2010. Petitioners are qualified Stenographer Grade-III and are eligible to hold the post of Stenographer Grade-II under the Assam Stenographers Service Rules, 1995. Accordingly, pursuant to the said advertisement, petitioners applied for the said post. Speed test was notified on 13th, 14th and 20th November, 2010. Petitioners were called for the speed test on the aforesaid dates and accordingly, they appeared in the speed test. Thereafter, order dated 28.12.2010 was passed by the Secretary to the Government of Assam, Secretariat Administration (Establishment) Department declaring 50 candidates to have passed the stenography speed test in English and 9 candidates to have passed the stenography speed test in Assamese, making them eligible for the composition test to follow. It was stated that the merit list would be decided after declaration of the result of the composition test in English and Assamese respectively. 6. It was stated that the merit list would be decided after declaration of the result of the composition test in English and Assamese respectively. 6. Case of the petitioners is that most of the short-listed candidates are already in service in the Assam Secretariat and their roll numbers were provided in such a manner that they could appear in the speed test examination at a time in groups. Altogether 280 candidates were called for the speed test and those were grouped in seven batches comprising 40 candidates in each batch. The speed test for the secretariat candidates were held on 13.11.2010 and 14.11.2010. The dictation of the test passage was selected from the editorial column of the newspaper "The Assam Tribune" dated 08.11.2010 under the caption "Assembly Session", which was leaked out prior to the speed test. Petitioners also alleged that the recruitment process was conducted in violation of the provisions of the Assam Stenographers Service Rules, 1995. The entire transcription along with the answer scripts were handed over for final scrutiny to the Joint Secretary, Secretariat Administration Department, who is neither a stenographer nor a member of the Board for Selection of Stenographers. Out of the 50 candidates empanelled for English composition test, 39 were from the Secretariat, which is an indication of the level of manipulation that had taken place in the recruitment process. Because of manipulation and unfairness in the recruitment process, petitioners were not included in the empanelled list of candidates eligible for the English composition test. 7. Because of subsequent developments, applications were filed by the petitioners for amendment of the writ petition, including for impleadment of parties. Respondents 6 to 11 also got themselves impleaded by filing application. Such applications on being allowed, the petitioners have filed a consolidated writ petition. 8. During the pendency of the writ petition, Under Secretary to the Government of Assam, Secretariat Administration (Estt.) Department issued office order dated 27.1.2011 declaring 49 candidates, whose roll numbers were mentioned in the said order, to have passed the Stenographer Grade-II examination in English and 9 candidates whose roll numbers were also mentioned in the said order to have passed the Stenographer Grade-II examination in Assamese. It was stated that the candidates were placed in order of merit. From the office order dated 27.1.2011 it appears that both English and Assamese composition test were held on 22.1.2011. 9. It was stated that the candidates were placed in order of merit. From the office order dated 27.1.2011 it appears that both English and Assamese composition test were held on 22.1.2011. 9. Petitioners have contended that the selection of candidates is not in accordance with the provisions of Assam Stenographers Service Rules, 1995 (Rules), particularly rule 13 thereof, which provides for constitution of a Selection Board. According to the petitioners, the entire transcription along with the dictation scripts were handed over for final scrutiny to the Joint Secretary, Secretariat Administration Department, who was not a member of the Selection Board. No meeting of the Selection Board was held. From the information obtained by the petitioners under the Right to Information Act, 2005, it could be gathered that the same passage, i.e., the editorial column of Assam Tribune dated 8.11.2010 under the heading "Assembly Election" was dictated to the first batch on 13.11.2010 and was repeated again to the second batch on the same day. This passage was again dictated to the candidates of the third batch who appeared on 13.11.2010 and was repeated again to the candidates of the 8th batch on 20.11.2010. Further, time limit prescribed in the Rules was not maintained. While examining the 4th batch on 14.11.2010, instead of the prescribed time limit of 5 minutes, 20 minutes time was allowed. Maximum number of candidates i.e. 20 candidates out of 38 who had appeared in the 4th batch got selected. 22 candidates from the Assam Secretariat have been declared to have passed. Select list was not approved by the Selection Board. 10. Prayer made in the writ petition is to set-aside and quash the order dated 27.1.2011 whereby list of selected candidates was declared. 11. After filing of the consolidated writ petition, while the matter was being examined by the court, office order dated 3.3.2012 was issued by the Under Secretary to the Government of Assam, Secretariat Administration (Estt.) Department saying that the said order is in continuation of the order dated 27.1.2011 (impugned in the writ petition) and publishing the names of the qualified candidates, 49 for Stenographer Grade-II (English) and 9 for Stenographer Grade-II (Assamese), in order of merit. Petitioners filed an application for stay of the aforesaid order dated 3.3.2012, which has been registered and numbered as Misc. Case No.674/12. Petitioners filed an application for stay of the aforesaid order dated 3.3.2012, which has been registered and numbered as Misc. Case No.674/12. In the said miscellaneous case, petitioners have pointed out that Commissioner and Secretary to the Government of Assam, Secretariat Administration (Estt.) Department had constituted a committee on 8.4.2011 to look into the alleged irregularities in the selection process. The committee in its report dated 3.5.2011 made adverse observations in respect of 27 of the qualified candidates of the English stenography examination while stating that rest of the answer scripts were found more or less in order. 12. Before referring to the affidavits filed, some of the orders passed by the court in this case from time-to-time may be noticed. 13. Notice was issued on 7.1.2011. On 9.2.2011, it was observed that if any appointment was made, the same would be subject to the outcome of the writ petition. By order dated 6.6.2011, the court after noticing that there was no stay order, clarified that pendency of the writ petition shall not be a bar for making appointment of the private respondents. The court by order dated 18.11.2011 directed respondent Nos. 2 and 3 to file affidavit disclosing the reasons for not making appointment in spite of clarification by the court. On 24.1.2012, this court on submission made by learned counsel for the petitioners that as anomalies have been detected in the answer scripts of 27 of the selected candidates fresh selection should be held, learned counsel appearing for the selected candidates prayed for time to obtain instruction from their clients. Accordingly, hearing of the case was deferred. On 1.3.2012, following the deliberations in the court, the selected candidates agreed to file a joint affidavit to confirm their willingness to face a skill test in Stenography for appointment as stenographer. Accordingly, 3 weeks time was granted to the parties. In the meanwhile, Misc. Case No.674/2012 was filed by the petitioners. On 5.3.2012, this court passed the following order in the miscellaneous case : "While the court is actively examining the legality of the process of selection for appointment to Stenographer Gr.II in the Assam Secretariat, an office order is issued on 3.3,2012 (Annexure D). In the meanwhile, Misc. Case No.674/2012 was filed by the petitioners. On 5.3.2012, this court passed the following order in the miscellaneous case : "While the court is actively examining the legality of the process of selection for appointment to Stenographer Gr.II in the Assam Secretariat, an office order is issued on 3.3,2012 (Annexure D). Since anomalies in the selection process was found by the Inquiry Committee, constituted through office order dated 8.4.2011 and the court through order dated 1.3.2012 had granted time to the selected candidates to confirm their willingness to face a skill test in stenography, Mr. Banerjee submits that the Government should be stopped from giving appointment, in pursuant to the office order dated 3.3.2012. As prayed for, the respondents including the private respondents, are granted 7 days time to file objection to the miscellaneous application. Case be listed again on 12.3.2012. In the meantime, since the court is in seisin of the matter, in order to ensure that third party rights are not created in the meantime and noticing that doubt is cast on the selection process in respect of 27 out of the 33 selected candidates, through the Enquiry Committee, status quo in pursuant to the office order dated 3.3.2012, shall be maintained until the next date." On 2.4.2012, this court passed an order in the miscellaneous case directing the State respondents to produce the answer scripts and transcriptions scripts of the parties involved. 14. Affidavit-in-opposition was filed by respondent Nos.1 to 4 on 4.2.2011. In paragraph 4 of the said affidavit, it is stated that a total number of 316 applicants were found eligible to appear in the speed test. The candidates were divided into 8 batches for the test held on 13.11.2010, 14.11.2010 and 20.11.2010. Out of the 316 candidates, only 181 candidates appeared at the speed test on the aforesaid dates. Of the 181 candidates who had appeared at the speed test, 50 candidates came out successful. Amongst these 50 successful candidates, only 22 belonged to the Assam Secretariat. All procedures as per the Rules were followed. Petitioners could not qualify in the speed test. Marks obtained by the writ petitioners have been furnished, which are as under : No. Roll No. Name of the Candidate No. of mistakes allowed No. of mistakes committed 1. E-45 Bipul Chandra Dutta 45 133 2. E-162 Anwar Hussain Mazumdar 45 Incomplete transcription 3. Petitioners could not qualify in the speed test. Marks obtained by the writ petitioners have been furnished, which are as under : No. Roll No. Name of the Candidate No. of mistakes allowed No. of mistakes committed 1. E-45 Bipul Chandra Dutta 45 133 2. E-162 Anwar Hussain Mazumdar 45 Incomplete transcription 3. E-23 Nazir Hussain Laskar 45 115 4. E-318 Mazibur Rahman Barbhuyan 45 56 5. E-190 Zakir Hussain Laskar 45 Uncountable mistakes 6. E-79 Nazam Uddin 45 71 7. E-172 Fahdul Hoque Laskar 45 Uncountable mistakes 8. E-175 Utpal Talukdar 45 Uncountable mistakes 9. E-202 Santita Roy 45 55 10. E-197 Prabir Das Choudhury 45 Uncountable mistakes 11. E-196 Mitali Das Choudhury 45 Uncountable mistakes All the allegations made in the writ petition have been denied. Passages for dictation were selected by the Department in consultation with experts. Each passage contained 600 words on which 7½ % mistakes i.e. 45 words were allowed. Candidates whose mistakes were within this limit were declared to have passed the speed test. Since petitioners fared very poorly as pointed out above, they were not selected. Scrutiny was done by senior experienced stenographers and compilation was done by the Joint Secretary and the Special Officer of the Department. 15. Affidavit-in-opposition was filed by respondent Nos. 6 to 11 on 22.2.2011. Stand taken is that writ petition should be dismissed on the ground of non-joinder of necessary parties, as initially selected candidates were not made parties. Petitioners are unsuccessful candidates who had participated in the selection process. Therefore, it is not open for them to challenge the legality and validity of the selection process. They have justified their selection by stating that they are eligible for the post of Stenographer Grade--II and their performance in the speed test and composition test justified their selection. They have denied the allegations made by the petitioners that the speed tests were arranged in such a manner to benefit the candidates belonging to the Assam Secretariat. 16. Respondent Nos. 1 to 4 filed another affidavit on 4.3.2011 wherein it is stated that Selection Board was constituted on 8.11.2010 with Shri H.M. Caire, IAS, Additional Chief Secretary as the Chairman. 16. Respondent Nos. 1 to 4 filed another affidavit on 4.3.2011 wherein it is stated that Selection Board was constituted on 8.11.2010 with Shri H.M. Caire, IAS, Additional Chief Secretary as the Chairman. As per decision of the Selection Board dated 8.11.2010, the following 6 officials were asked to examine the answer scripts : (1) Shri Tilak Nath, Stenographer Grade-I, (2) Shri Apurba Kumar Roy, Stenographer Grade-I, (3) Shri Partha Roy, Stenographer Grade-I, (4) Shri Siddeswar Sarma, Senior Grade Stenographer, (5) Shri Sumitra Sekhar Dhar, Senior Grade Stenographer. (6) Shri Mahendra Sarma, Stenographer Grade-I. As per decision of the Selection Board dated 14.12.2010, Shri B. Das, Joint Secretary and Shri J.N. Boiragi, Special Officer were asked to evaluate the answer scripts. Selection Board met on 8.11.2010, 14.12.2010, 27.12.2010 and 27.1.2011. Though Shri H.K. Sharma, IAS, Commissioner and Secretary, Social Welfare Department, a member of the Selection Board, could not attend the meetings due to his pre-occupation, other 3 members had attended the meetings of the Selection Board. 17. Respondent No. 14 in his affidavit-in-opposition filed on 3.5.2011 has taken similar stand as the respondent Nos. 6 to 11. Likewise, similar counter affidavits were filed by respondent No.20 on 9.5.2011 and by respondent No. 17 on 5.7.2011. 18. Respondent No.6 to 11 again filed counter affidavit on 2.9.2011 after the petitioners filed consolidated writ petition. In addition to the averments made in the previous counter affidavit, they have justified the impugned order dated 27.1.2011 and prayed for dismissal of the writ petition. After the result of the speed test was declared on 28.12.2010, English composition test was held on 22.1.2011, Respondents fared well and accordingly were selected vide the impugned order dated 27.1.2011. 19. An affidavit was filed by respondent No.3 on 13.12.2011 in terms of order of the court dated 18.11.2011 as earlier noticed. It is stated thai since selection is sub-judice and allegations have been made against the selection, it would be prudent to refer the matter to the learned Advocate General for his opinion and as such, appointments were withheld. 20. An affidavit was filed by the Commissioner and Secretary to the Government of Assam, Secretariat Administration (Estt.) Department on 20.1.2012. It is stated that 4 Nos. of stenographers were engaged by the then departmental Commissioner and Secretary to compare the typed out answer sheets with shorthand outlines. 20. An affidavit was filed by the Commissioner and Secretary to the Government of Assam, Secretariat Administration (Estt.) Department on 20.1.2012. It is stated that 4 Nos. of stenographers were engaged by the then departmental Commissioner and Secretary to compare the typed out answer sheets with shorthand outlines. The report of scrutiny was brought to the notice of the Legal Remembrancer, Government of Assam and the learned Advocate General, Assam. The Legal Remembrancer noted that subsequent events have brought out the fact that there were some anomalies in the evaluation of the transcription sheets and opined that rejection of the candidature of some of the candidates on the basis of the anomalies detected and going for appointment of the rest of the selected candidates would not be advisable as the enquiry was conducted after publication of the select list and the persons sought to be segregated have not been given opportunity of hearing regarding anomalies detected. View of the learned Advocate General is that the selected candidates barring those candidates against whom irregularities were found can be appointed with a stipulation that their appointments would be subject to the outcome of the writ proceeding. Regarding those candidates in respect of whom irregularities have been found, they may also be appointed but their appointments should be reviewed periodically. 21. An additional affidavit-in-opposition was filed by respondent Nos. 6 to 11 on 23.1.2012. They have contended that the enquiry conducted by the then departmental Commissioner and Secretary was on the basis of personal initiative and had no legal sanction. 22. Counter affidavit by respondent Nos. 28, 34, 38, 39, 40, 41, 43, 47, 51, 52 and 53 was filed on 14.2.2012. They have denied the allegations made by the petitioners contending that the selection process was conducted as per rules and did not suffer from any anomaly. The aforesaid respondents, barring respondent Nos. 34, 52 and 53, also filed an affidavit on 14.2.2012 opposing the affidavit filed by the departmental Commissioner and Secretary on 20.1.2012. They have sought to explain the anomalies detected by the scrutiny committee. It is stated that there are two methods of stenography, one is Pitman and the other is Gregg. Though both the methods are recognized, Pitman method is commonly followed by most of the stenographers. They have sought to explain the anomalies detected by the scrutiny committee. It is stated that there are two methods of stenography, one is Pitman and the other is Gregg. Though both the methods are recognized, Pitman method is commonly followed by most of the stenographers. It is contended that creating words in short hand is not only based on the prescribed outlines but also based on the convenience and understanding of the stenographer. He can create his own outlines and can easily transcribe the same in typing without any mistake. Ability of a stenographer cannot be decided on the examination of the dictation page. What is to be seen is the correct transcription of the dictation and the dictation taken may be of no relevance to test the ability of the stenographer. Principles through which a stenographer can transcribe correctly although he may omit few shorthand outlines in the dictation sheet have been mentioned. It is on the above basis that the discrepancies/anomalies pointed out by the scrutiny committee have been sought to be explained. They have also questioned the decision of the then departmental Commissioner and Secretary to go for scrutiny of the transcription sheets and dictation outlines of the selected candidates as unwarranted and without jurisdiction. 23. Similar counter affidavit was filed by respondent No.55 on 16.2.2012. Respondent No.20 in his affidavit filed on 28.2.2012 stated that scrutiny committee constituted by the departmental Commissioner and Secretary on 8.4.2011 had observed that in respect of respondent No.20 only 4 Nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. Respondent No.20 has stated that even if the above mistakes are taken into account, his percentage of mistakes still would not exceed 7½ and, therefore, his selection is fully justified. He has also justified the decision of the Selection Board to allow examination of the shorthand notes and transcripts by senior stenographers as members of the Selection Board were not technical experts. 24. Respondent Nos. 6 to 11 filed affidavit on 2.4.2012 in terms of order of this court dated 1.3.2012. They have stated that they would not like to participate in the stenography skill test for appointment as stenographer. Similar affidavit was filed by respondent No. 14, also on 2.4.2012. 25. Respondent No.55 also filed an additional affidavit on 3.9.2012 questioning the observations of the scrutiny committee. They have stated that they would not like to participate in the stenography skill test for appointment as stenographer. Similar affidavit was filed by respondent No. 14, also on 2.4.2012. 25. Respondent No.55 also filed an additional affidavit on 3.9.2012 questioning the observations of the scrutiny committee. He has stated that the number of mistakes recorded against him stood at 13 as assessed earlier by the Selection Board, despite observation of the scrutiny committee. This, he submits, he could gather after getting photocopy of his shorthand dictation and answer script under RTI application. 26. Petitioners have filed two reply affidavits, one filed on 7.9.2011 and the other on 4.1.2012. They have reiterated the contentions made in the writ petition. They have, however, contended that observations of the scrutiny committee supported their challenge. Selection Board did not allot marks, which were allotted by senior stenographers who were not members of the Selection Board, thus violating the provisions of the Rules. 27. Against the miscellaneous case filed by the petitioners, i.e., Misc. Case No.674/12, objections/counter affidavits have been filed by the respondents which are more or less on similar lines as the affidavits filed in the main case. 28. Petitioners have also filed their reply affidavit to such objections/counter affidavits. 29. Heard Mr. B. Banerjee, learned counsel for the petitioner and Mr. K.N. Choudhury, learned senior Additional Advocate General, Assam. Also heard Mr. A.B. Choudhury, learned senior counsel, Mr. A.M. Bujar Barua, Ms. B. Bhuyan, Mr. B. Chakraborty, Mr. B. Gogoi, Mr. Ajay Kr. Das, Ms. M. Katoky and Mr. M.J. Quadir, learned counsel appearing for the private respondents. 30. Mr. Banerjee, learned counsel for the petitioner submits that there is violation of the procedure prescribed under the Rules. Rule 13 of the Rules provides for constitution of Selection Board for conducting selection. Accordingly, Selection Board was constituted comprising of the following officers : (1) Shri H.M. Caire, Additional Chief Secretary, to the Government of Assam .... Chairman. (2) Shri H.K. Sharma, Commissioner and Secretary to the Government of Assam, Social Welfare Department ..... Member. (3) Shri K. Goswami, Secretary to the Government of Assam, Secretariat Administration Department.... Member. Accordingly, Selection Board was constituted comprising of the following officers : (1) Shri H.M. Caire, Additional Chief Secretary, to the Government of Assam .... Chairman. (2) Shri H.K. Sharma, Commissioner and Secretary to the Government of Assam, Social Welfare Department ..... Member. (3) Shri K. Goswami, Secretary to the Government of Assam, Secretariat Administration Department.... Member. (4) Special Officer and Ex--officio Deputy Secretary to the Government of Assam, Secretariat Administration Department Secretary.....Member He submits that respondents 1 to 4 in their affidavit filed on 4.2.2011 have stated that answer scripts were scrutinized by senior experienced stenographers and finally, compilation Was done by the Joint Secretary, Secretariat Administration Department/The said Joint Secretary was not a member of the Selection Board constituted under rule 13. He submits that there is thus clear violation of rule 13 of the Rules, which has vitiated the entire selection and on this ground alone, the selection is required to be quashed, save and except the selection of candidates for Assamese Stenographer Grade-II. According to him, as separate time slots were allotted to different groups, there is violation of the scheme of selection as provided in Schedule-III to the Rules. He further submits that on a conjoint reading of the office order dated 8.4.2011 passed by the then departmental Commissioner and Secretary, observations of the scrutiny committee, views of the Legal Remembrancer and opinion of the learned Advocate General would buttress the contention of the petitioners that there were gross irregularities and malpractice in conducting the selection, which would require interference by this court in exercise of its power of judicial review. He, therefore, prays for a decisive intervention by this hon'ble Court. 31. Mr. K.N. Choudhury, learned Senior Additional Advocate General appearing for the State respondents submits that the selection was conducted in a fair and transparent manner in accordance with the Rules. Selection Committee has the discretion to conduct the selection in a manner it thinks best provided it is within the scheme of selection. He submits that decision of the Selection Board to ask senior stenographers to examine the answer scripts and thereafter to ask the Joint Secretary of the Department to make the compilation cannot be said to be in violation of the provisions of the Rules, particularly rule 13 thereof. He submits that decision of the Selection Board to ask senior stenographers to examine the answer scripts and thereafter to ask the Joint Secretary of the Department to make the compilation cannot be said to be in violation of the provisions of the Rules, particularly rule 13 thereof. The members of the Selection Board, not being technical persons, had to take the assistance of persons having expertise in the subject, which cannot be said to be an action in derogation of the Rules. He also contends that the departmental Commissioner and Secretary not being a member of the Selection Board, had no justification and jurisdiction to direct scrutiny of the answer scripts by another set of stenographers. He has placed before the court the dictation and transcription sheets of the 49 selected candidates and those of the petitioners in sealed cover. When the court pointed out the anomalies/mistakes observed by the scrutiny committee, which included use of white fluid, he fairly submitted that the court may consider the mistakes pointed out and pass appropriate order. He, however, contended that the petitioners being unsuccessful candidates, they have no locus to challenge the selection process. Court should not examine validity of the selection process at the instance of candidates who had taken part in the selection and subsequently instituted the challenge after they were declared unsuccessful. In support of his submission, Mr. Choudhury has referred to the decision of the hon'ble Supreme Court in the case of Dhananjay Malik and Ors. v. State of Uttaranchal and Ors., (2008) 4 SCC 171 . 32. Mr. A.B. Choudhury, learned senior counsel appearing for some of the private respondents has also questioned the locus of the petitioners to challenge the selection process after participating therein and after being declared unsuccessful. While adopting the arguments advanced by Mr. K.N. Choudhury, he submits that stenography is a technical subject and the mistakes/anomalies pointed out by the subsequent scrutiny committee can be explained by referring to Pitman method of stenography. He submits that in the actual dictation taken, the stenographer is at liberty to create and use his own outlines which he can easily understand and can transcribe by typing without any mistake. This aspect was over looked by the subsequent scrutiny committee. 33. Submission advanced by Mr. K.N. Choudhury, learned Senior Additional Advocate General and Mr. He submits that in the actual dictation taken, the stenographer is at liberty to create and use his own outlines which he can easily understand and can transcribe by typing without any mistake. This aspect was over looked by the subsequent scrutiny committee. 33. Submission advanced by Mr. K.N. Choudhury, learned Senior Additional Advocate General and Mr. A.B. Choudhury, learned senior counsel for some of the respondents have been adopted by the other counsel appearing for the different private respondents. Additionally, Ms. B. Bhuyan learned counsel appearing for respondents 6 to 11 while reiterating the submission of Mr. K.N. Choudhury about lack of locus on the part of the petitioners in instituting the present challenge as they are unsuccessful candidates, has placed reliance on the following three decisions : Madan Lal and Ors. v. State of Jammu and Kashmir and Ors., AIR 1995 SC 1088 . Dr. Mahesh Gogoi v. State of Assam and Ors., (2010) 6 GLR 147. Mandira Das Sarma v. State of Assam and Ors., (2011) 2 GLR 776. 34. In his brief reply, Mr. B. Banerjee, learned counsel for the petitioners submits that the proposition that unsuccessful candidates cannot challenge the selection process cannot be understood to be an inflexible rule and would operate as a bar in all cases, irrespective of the facts and circumstances of a case. In this connection, he places reliance on the decision of the hon'ble Supreme Court in the case of Raj Kumar and Ors. v. Shakti Raj and Ors., (1997) 9 SCC 527 . 35. Submissions made have been considered. 36. Before proceeding to examine the merit of the challenge, since the question of locus standi of the petitioners to maintain the present challenge has been argued with considerable force, it would be appropriate to deal with the said question at the first instance. 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. 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 participates 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 excepation? 39. In Raj Kumar (supra), the Apex Court held in the facts of that case 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. 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 (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. 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. 42. 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. 42. Though the private respondents have also contended that the writ petition should be dismissed for non-joinder of necessary parties, the fact however remains that respondents 6 to 56 were subsequently impleaded in the proceeding and contested the same. As the said respondents are present before the court, the question of non-joinder of necessary parties does not arise. It may be pointed out that petitioners had filed Misc. Case Nos. 723/2011 and 1085/2011 for impleading the selected candidates as party respondents in the writ petition. This court by orders dated 18.3.2011 and 20.4.2011 allowed the prayer for impleadment. Again, respondent Nos. 6 to 11 got themselves impleaded by filing Misc. Case No.405/2011. Therefore, the objection as to non-joinder of necessary parties is devoid of merit and is accordingly rejected. 43. Before proceeding to examine the challenge, it would be appropriate to notice the relevant provisions of the Rules. The Rules have been framed in exercise of powers conferred by the proviso to article 309 of the Constitution of India. As per rule 2(a)(II), appointing authority in respect of Stenographer Grade-II in the Secretariat is the Chief Secretary to the Government of Assam. 'Service' has been defined to mean Assam Stenographers' Service, which consist of various cadres, including Stenographer Grade-II. Rule 5 provides for method of recruitment. In case of Stenographer Grade-II, recruitment is to be made in accordance with rule 6 and Schedule-I Part-B, which provides that before the end of each year, the appointing authority shall make an assessment regarding the likely number of vacancies in the cadre of Stenographer Grade-II to be filled up by recruitment during the next year and shall intimate the same through the Government in the Secretariat Administration Establishment Department to the Selection Board together with the details about the vacancies, such as, the nature and extent of reservation. On request by the Government, the Selection Board shall make a selection in accordance with the scheme of selection. The Selection Board shall furnish to the Government a list of qualified candidates in order of preference after conducting a qualifying examination. On request by the Government, the Selection Board shall make a selection in accordance with the scheme of selection. The Selection Board shall furnish to the Government a list of qualified candidates in order of preference after conducting a qualifying examination. As per rule 16, based on the list of qualified candidates, the appointing authority, if satisfied after such enquiry as may be considered necessary, is satisfied that a candidate is suitable for appointment from the list of successful candidates prepared by the Selection Board, may decide to make appointment accordingly. Mere passing of the examination shall not confer any right to the candidates for appointment. The select list shall remain valid till exhausted. In case the Selection Board is unable to recommend sufficient number of candidates to fill up the vacancies, the selection process should be repeated. As per rule 13, for selection of Stenographer Grade-II, a Selection Board comprising of the following shall be constituted : (1) Chief Secretary to the Government of Assam ....Chairman. (2) Secretary to the Government of Assam,Secretariat Administration Department .... Member (3) Any other Secretary nominated by the Chief Secretary .... Member. (4) Special Officer and Ex-officio Deputy Secretary to the Government of Assam, Secretariat. Administration Department .... Member Secretary. 44. As per Schedule-1 Part-B appended to the Rules, the minimum qualification and experience prescribed for recruitment to the post of Stenographer Grade-II are as under : (i) should have passed degree examination or an equivalent examination from a recognized university; (ii) should pass speed test of 120 words per minute in English stenography or 100 words per minute in language stenography conducted by the Selection Board. 45. The scheme of selection is provided in Schedule-III Stenography has been defined to mean taking dictation and preparing type written transcribed copy of the passage dictated. The scheme of selection comprises of two parts -- (i) stenography dictation, (ii) composition. For stenography speed test of 120 words per minute in English, 2 minutes time is allotted for dictation of trial passage, 5 minutes for dictation of test passage, 10 minutes for revision of test passage by candidate, 5 minutes for adjustment of type writers and 60 minutes for transcription. There will be a trial passage and another test passage selected before hand. There will be a trial passage and another test passage selected before hand. The trial passage will be dictated by the same person who will dictate the test passage to enable the candidates to get familiar with his mode of dictation, accent and pronunciation. A candidate shall be considered suitable for being recommended for appointment if the percentage of mistake in transcribing the test passage dictated does not exceed 7.5% of the total numbers of words transcribed. Marks shall be allotted for transcription of the test passage and for the composition. In case of equality of the aggregate marks of two or more candidates, the names of such candidates shall be arranged according to the marks obtained in the transcription of the dictation test passage. 46. Having noticed the relevant provisions of the Rules, we may now proceed to examine the challenge made by the petitioners. 47. At the outset, it must be pointed out that from the stand taken by the petitioners it is clear that there is no grievance as regards selection of candidates in respect of Stenographer Grade-II (Assamese). In view of the same, no adjudication on the selection in respect of Stenographer Grade-II (Assamese) is called for. Accordingly, the present exercise is confined to the selection to the post of Stenographer Grade-II (English). 48. As already noticed, 33 posts of Stenographer Grade-II (English) in the Assam Secretariat were advertised. By office order dated 28.12.2010, 50 candidates were declared to have passed the English stenography speed test and became eligible to sit in the English composition test. Following the English composition test, 49 candidates were declared to have passed the Stenographer Grade-II examination (English). 49. Petitioners have challenged the selection primarily on two grounds : (i) Selection was conducted not by the Selection Board as constituted under rule 13 but by some other authority. Therefore, the said selection is not as per the procedure prescribed under the Rules and should be declared as illegal, (ii) Selection was vitiated by various anomalies and unfair practice, as noticed in the initial part of this judgment. 50. Let us examine the first ground of challenge. State respondents in their affidavits have stated that scrutiny of the answer scripts was done by senior experienced stenographers and finally, compilation was done by the Joint Secretary and Special Officer of the Secretariat Administration (Estt.) Department. 50. Let us examine the first ground of challenge. State respondents in their affidavits have stated that scrutiny of the answer scripts was done by senior experienced stenographers and finally, compilation was done by the Joint Secretary and Special Officer of the Secretariat Administration (Estt.) Department. Petitioners have contended that the aforesaid course of action adopted is in violation of rule 13 of the Rules, as it shows that selection was not conducted by the Selection Board, moreso when the Joint Secretary of the Department is not a member of the Selection Board. A perusal of rule 13 as already noticed above would indicate that a Selection Board comprising the officers mentioned therein was constituted for selection of candidates for appointment to the post of Stenographer Grade-II. As per the scheme of selection, the Selection Board has the discretion to select the person to dictate the passage. Selection Board is required to allot marks for the transcription of the test passage and for the composition test. Marks are to be awarded on the basis of the quality of the transcribed passage as well as performance on composition paper. Considering the fact that stenography is a technical subject and the members of the Selection Board may not be fully equipped to deal with the technical aspect, the Selection Board may assign technically qualified persons to do the examination of the answer scripts. No fault can be ascribed to adoption of such a course 9f action. After completion of the examination, the Selection Board had asked the Joint Secretary and Special Officer of the Department to do the compilation based on the scrutiny carried out by the experienced stenographers. This does not mean that the selection was conducted by the said Joint Secretary and the Special Officer. They had only made the compilation after scrutiny by the examiners to enable the Selection Board to select the suitable candidates. In such circumstances, the court is of the view that there is no infraction of rule 13 of the Rules while conducting the selection. 51. Coming to the second ground of challenge, it is seen that it is mostly related to adopting unfair method/manipulation to ensure grouping of candidates serving in the Assam Secretariat together and violation of the scheme of selection by not adhering to the allotment of time fixed for the different stages of test. 52. 51. Coming to the second ground of challenge, it is seen that it is mostly related to adopting unfair method/manipulation to ensure grouping of candidates serving in the Assam Secretariat together and violation of the scheme of selection by not adhering to the allotment of time fixed for the different stages of test. 52. Ordinarily, the courts do not have the wherewithal to examine or scrutinize such allegations, which are denied or disputed by the respondents. Because of the highly disputed nature of the allegations, the court would not have entered into an examination of such disputed questions but for an interesting twist in the tale which took place in the course of the proceeding of the case. 53. As has already been noticed above, the Commissioner and Secretary to the Government of Assam, Secretariat Administration Department passed an order dated 8.4.2011 stating that senior stenographers were entrusted with the job of examiner to evaluate the answer scripts and transcripts of all the candidates in respect of the selection in question. The results were thereafter scrutinized by two officers, namely, Shri J.N. Boiragi, the then Special Officer and Ex-officio Deputy Secretary of the Department and by Shri B.C. Das, the then Joint Secretary of the Department. The Commissioner and Secretary noted that complaints were received against Shri Boiragi alleging manipulation of examination results and regarding the other officer, viz., Shri B.C. Das, it was observed that he had no background in stenography and, therefore, was not technically qualified to examine the transcripts. It was therefore decided to scrutinize the transcription scripts of all the candidates once again. Accordingly, 4 officials were entrusted with the task of re-scrutiny. The said officials were asked to scrutinize they answer/transcription scripts along with the short hand outlines of all the candidates and to submit the report to him. 54. The 4 officials scrutinized the transcriptions of the qualified candidates and compared the same with their short hand outlines. Observations were made against 27 of the selected candidates (out of 49), including in respect of 2 candidates who had used white correcting fluid in the transcription sheet. The observations of the 4 officials dated 3.5.2011 are as under : "OBSERVATIONS OF THE COMMITTEE CONSTITUTED BY OFFICE ORDER ISSUED UNDER NO.PKB/C&S/MISC/2008, DATED 8.4.2011. Observations were made against 27 of the selected candidates (out of 49), including in respect of 2 candidates who had used white correcting fluid in the transcription sheet. The observations of the 4 officials dated 3.5.2011 are as under : "OBSERVATIONS OF THE COMMITTEE CONSTITUTED BY OFFICE ORDER ISSUED UNDER NO.PKB/C&S/MISC/2008, DATED 8.4.2011. In compliance of the office order mentioned above, the Transcription of the qualified candidates appeared in Stenography Grade-II (English) Examination have been scrutinized and compared with their shorthand outlines. Following observations against some of the candidates are noted below as rest of the answer scripts were found more or less in order. Roll No.Observations E-17(I) White correcting fluid used in the transcription sheet. (II) 16 nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-288 (eight) more mistakes detected. E-38(I) White correcting fluid used in the transcription sheet (II) 16(sixteen) more mistakes detected in the transcription sheet. E-5728 (twenty eight) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-10722 (twenty two) nos. of more mistakes detected. E-1139 (nine) more mistakes detected. E-114More than 100 nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-11520 (twenty) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-11829 (twenty-nine) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-119More than 100 nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-12143 (Forty-three) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-1228 (eight) nos. more shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-12419 (nineteen) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-12519 (nineteen) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-12714 (Fourteen) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-13063 (sixty-three) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-13240 (forty) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-1368(eight) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-13063 (sixty-three) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-13240 (forty) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-1368(eight) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-139Shorthand outlines script from the beginning upto the words "we must have own capital" are not found enclosed with the transcription script. E-146Shorthand outlines are not in Pitman method. Perhaps these are Grag Method of stenography. Hence could not be scrutinized. E-14820 (twenty) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-149Only 4 (four) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-156Shorthand outlines are not in Pitman method. Perhaps these are Grag Method of stenography. Hence could not be scrutinized. E-15939 (thirty-nine) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-17771 (seventy-one) nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-223More than 100 nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet. E-219More than 100 nos. of shorthand outlines have not been written although transcribed correctly in the transcription sheet." 55.I have also seen the transcription scripts along with the short hand outlines of the selected candidates and the writ petitioners. 56. It has been contended by the respondents that the departmental Commissioner and Secretary had no competence to direct such scrutiny vide his order dated 8.4.2011. The advertisement was for 33 posts of Stenographer Grade-II (English) in the Assam Secretariat. As per rule 2(a) (II) of the Rules, the appointing authority in respect of Stenographer Grade-II in the Assam Secretariat is the Chief Secretary to the Government of Assam. Rule 16 provides that inclusion of a candidate's name in the select list would confer no right to appointment unless the appointing authority after conducting such enquiry as may be considered necessary is satisfied that a candidate is suitable in all respects for appointment. Thus, the appointing authority is not bound by the selection made by the Selection Board. He has satisfy himself about the suitability of a candidate/candidates to appointment, which he may do by holding such enquiry as may be considered necessary. Thus, the appointing authority is not bound by the selection made by the Selection Board. He has satisfy himself about the suitability of a candidate/candidates to appointment, which he may do by holding such enquiry as may be considered necessary. In the present case, the departmental Commissioner and Secretary is not the appointing authority, the Chief Secretary being the appointing authority. Therefore, the departmental Commissioner and Secretary ought to have forwarded the complaints and the allegations made against the selection to the Chief Secretary, being the appointing authority, to take a decision in the matter. That having not been done, the departmental Commissioner and Secretary had overstepped his authority while passing the order dated 8.4.2011 directing fresh scrutiny. 57. But despite the lack of legitimacy of the above order dated 8.4.3011, the fact, however, remains that the outcome of such order has resulted in the detection of substantial additional mistakes in the transcription scripts and short hand outlines of 27 out of the 49 selected candidates. These additional mistakes on fresh scrutiny are now before the court. These mistakes as subsequently detected cannot be wished away. The State respondents have not controverted or questioned the correctness of the observations dated 3.5.2011 made by the 4 officials on re-scrutiny though the private respondents have tried to explain the detection of additional mistakes by saying that it is the transcription which is relevant for testing stenography skill and not the short hand outlines. According to some of them, even if the additional mistakes are taken into account, the percentage of mistakes in transcribing the test passage dictated does not exceed 7.5% of the words transcribed. 58. Having regard to the above and considering the matter in its entirety, the court is of the view that it would be in the interest of justice if the appointing authority examines the matter exercising his power under rule 16 of the Rules by taking into account the observations of the scrutiny committee dated 3.5.2011 and holding such further enquiry as may be considered necessary. Accordingly, the court considers it appropriate to issue the following directions : (i) since the selection to the post of Stenographer Grade-II (Assamese) has not been challenged, the appointing authority shall proceed to make the appointments to the 3 posts of Stenographer Grade-II (Assamese); (ii) in case of appointment to the 33 posts of Stenographer Grade-II (English), the Chief Secretary to the Government of Assam, who is the appointing authority, shall take into consideration the observations of the 4 officials dated 3.5.2011 while exercising the power of appointment under rule 16 of the Rules; (iii) if after taking into consideration the mistakes as pointed out in the observations dated 3.5.2011 or after conducting such further enquiry as may be considered necessary by the appointing authority, the names of those candidates whose percentage of mistakes in transcribing the test passage dictated exceeds 7.5% of the total number of words transcribed shall be deleted from the list of selected candidates dated 27.1.2012 and office order dated 3.3.2012; (iv) if after carrying out the aforesaid exercise, the posts that may remain vacant out of the 33 advertised posts, along with other vacancies which may have arisen in the interregnum, shall be re-advertised as per provisions of the Rules; 59. The directions (i) to (iii) as indicated above shall be carried out within a period of 3 months from the date of receipt of a certified copy of this judgment. Insofar direction No.(iv) is concerned, necessary steps for re-advertisement shall be taken within a period of 2 months from the date of completion of the exercise as per direction Nos. (i) to (iii). 60. Writ petition accordingly stands disposed of. 61. No cost. ____________