JUDGMENT (ORAL) Heard Mr. M. Pathak, the learned Counsel for the petitioner. Also heard Mr. S. Sarma, learned State counsel appearing for State respondents and Mr. B. Sinha, learned counsel appearing for Respondent No.7. 2. This writ petition under Article 226 of the Constitution of India is filed praying for setting aside and quashing the appointment of Respondent No.7 as Lower Division Assistant (for short, referred to as “LDA”) in the office of the Directorate of Information and Public Relations, Government of Assam and for quashing the proceedings of the Selection Committee for selection to the post of LDA in the Directorate of Information and Public Relations. 3. While admitting the writ petition, it was observed that the appointment of Respondent No.7 will be subject to result of the case. 4. The pleaded case of the writ petitioner, in short, is that an advertisement dated 12.11.2008 was published in the Assam Tribune, inviting applications for filling up of a vacant post of LDA and prescribing minimum qualification. The petitioner responded to the said advertisement and he was called for the written test held on 13.12.2008. He having cleared the written test, was called for viva-voce and practical test to be held on 24.12.2008, later on, rescheduled on 27.12.2008. According to the petitioner, 7(seven) candidates had cleared the written test and they were accordingly called for the interview and practical test. On the date of the interview, the petitioner came to learn that the Respondent No.7 is in very good terms with the Respondent No.2 i.e. Chairman of the Selection Committee. He visited the office of the Respondent No.2 on 30.12.2008 and to his surprise, came to learn that Respondent No.7 had joined in the post of LDA on 29.12.2008. In the office, no select list/merit list was published. The petitioner filed an application under Right to Information Act, 2005 on 01.01.2009, to furnish him the information relating to individual marks secured by the candidates, who appeared in the interview (written, viva-voce, type writing and computer test) and the minutes of the Selection Committee constituted for the post of LDA. The petitioner was furnished with only the marks obtained by him and he was not furnished with the marks secured by the other candidates, who was called for the interview and accordingly, he preferred an appeal before the Assam Information Commission. The petitioner was furnished with only the marks obtained by him and he was not furnished with the marks secured by the other candidates, who was called for the interview and accordingly, he preferred an appeal before the Assam Information Commission. It is pleaded that the Selection Committee, who took the viva-voce/interview of the candidates was not constituted in terms of the Assam Public Services (Direct Recruitment to Class –III and Class – IV Posts) Rules, 1997 (for short, referred to as “Rules”). 5. An affidavit was filed on behalf of Respondent No.2, stating that the appointment letter was issued to Respondent No.7 on 30.12.2008 and he had joined the post only on 02.01.2009. With regard to the composition to the Selection Committee, it is stated that the same was done as per approval accorded by the State Government in the Department of Information and Public Relations Department. 6. Respondent No.7 had also filed an affidavit affirming that he had joined the post on 02.01.2009. It is pleaded in the said affidavit that the selection process was free and fair and he has denied the allegation of favouritism and has asserted that he had no personal acquaintance with the Respondent No.2. With regard to the averments made in the writ petition that the Selection Committee was constituted in violation of the provisions of the Rules, no comments were offered by the Respondent No.7. 7. Mr. Pathak has submitted that Rule 5(1) (c) of the Rules prescribes the composition of Selection Committee for posts in the office of the Heads of Department. Learned counsel submits that Rule 5(1) (c) provides for nomination of 2(two) officers by the appointing authority from the office of two other Heads of Department and in the instant case, all the members of the Selection Committee were from the Department of Information and Public Relations. That the composition of the Selection Committee was not in accordance with Rule 5(1) (c) came to be known only when the Public Information Officer of the Department of Information and Public Relations furnished him the incomplete information on 16.01.2009. Accordingly, he submits that the viva-voce held by the aforesaid Selection Committee was illegal and therefore, direction should be issued by this Court for holding fresh viva-voce test, so that candidature of the candidates selected for the interview can be assessed by a duly constituted Selection Committee. Accordingly, he submits that the viva-voce held by the aforesaid Selection Committee was illegal and therefore, direction should be issued by this Court for holding fresh viva-voce test, so that candidature of the candidates selected for the interview can be assessed by a duly constituted Selection Committee. It is also submitted by him that, a fortiori appointment of Respondent No.7 necessarily has to be struck down. In order to substantiate his argument, that selection process can be interfered with if selection committee is not constituted in terms of the Rules, learned counsel relies on the case of DALPAT ABASAHEB SOLUNKE & Ors. Vs. B.S. MAHAJAN & Ors., reported in (1990) 1 SCC 305 . 8. Mr. S. Sarma, learned State Counsel concedes that the constitution of the Selection Committee was not in accordance with the Rules. But at the same time, he submits that the State Government in the Department of Information and Public Relations Department had accorded approval to the constitution of the Selection Committee as proposed by the Directorate of Information and Public Relations and accordingly, interview was held. It is submitted by him that as viva-voce was held by a Committee approved by the State Government, no interference is called for with the selection process. He has further submitted that the petitioner has failed to prove the allegation of biasness and favouritism and therefore, this writ petition ought to be dismissed. 9. Mr. B.P. Sinha, learned counsel for the Respondent No.7, submits that even if the Selection Committee was constituted in violation of the Rules, he was not at fault and therefore, his appointment is not liable to be interfered with. 10. The copy of the appointment order of Respondent No.7 has not been placed on record by the parties. However, Mr. Sarma, learned counsel State places before the court the said order during the course of argument. The same is placed on record. 11. Materials on record indicate that 84 candidates were called to appear in the written test for the post of LDA, out of which, 54 candidates, including the petitioner and Respondent No.7 appeared in the written test held on 13.12.2008. Out of them, 7 were called for viva-voce, type writing and computer tests held. 12. 11. Materials on record indicate that 84 candidates were called to appear in the written test for the post of LDA, out of which, 54 candidates, including the petitioner and Respondent No.7 appeared in the written test held on 13.12.2008. Out of them, 7 were called for viva-voce, type writing and computer tests held. 12. The learned counsel for the parties are in agreement that the results were declared on the basis of the total marks obtained in written test, type writing test, computer test and viva-voce test. 13. The basic grievance expressed by Mr. Pathak is that the Selection Committee as constituted could not have taken the viva-voce test, in view of the fact the said Committee was not constituted in accordance with the Rules. In Paragraph- 8 of the affidavit of Respondent No.2, the composition of the Selection Committee which took the viva-voce test has been indicated. A bare perusal of the same would go to show that all the 6(six) Members of the said Committee were from the Directorate of Information and Public Relations and, thus, clearly, not in conformity with the Rule 5(1(c). 14. There is no merit in the contention of Mr. Sarma that as the Selection Committee was approved by the concerned department, no fault can be found in the composition of the Selection Committee. When the Rules provide for constitution of a Selection Committee in a particular manner, purported approval for constitution of the Committee contrary to the scheme of the Rules, cannot confer any legitimacy on such Selection Committee. As a logical corollary, such Committee could not have interviewed and assigned marks on the viva-voce segment. 15. In DALPAT ABASAHEB SOLUNKE (Supra), the Apex Court had laid-down that decision of the Selection Committee can be interfered with, amongst others, if there is patent material irregularity in the constitution of the Committee. Whether or not the Committee was favourably disposed towards the Respondent No.7 is not the issue. Even if there is no biasness on the part of the said Committee, when the composition of the Committee was not in accordance with the Rules, no sanctity can be attached to interview conducted by such a Committee. 16. Whether or not the Committee was favourably disposed towards the Respondent No.7 is not the issue. Even if there is no biasness on the part of the said Committee, when the composition of the Committee was not in accordance with the Rules, no sanctity can be attached to interview conducted by such a Committee. 16. The upshot of the above discussion will lead to the inevitable conclusion that the marks awarded by the Selection Committee in the viva-voce segment cannot be taken into consideration for selection of the candidate for the purpose of appointment to the post of LDA. Accordingly, the appointment of Respondent No.7 is set aside. The State respondents would now constitute a Selection Committee, in accordance with Rule 5(1) (c) of the Rules and the said Committee will take fresh viva-voce test in respect of the 7(seven) candidates , subject to their appearing in the interview, within a period of 60 days from today. 17. As the Respondent No.7 was working for last 6(six) years, this fresh exercise for holding the viva-voce test would invariably be undertaken within the aforesaid period of 60 days. Thereafter, the Selection Committee will publish the result of the selection by taking into account the marks already obtained by the candidates in the written test, type writing test, computer test and the marks awarded in the viva-voce test, now directed to be held, and then offer appointment to the candidate who secures the highest total mark. 18. With the aforesaid directions and observations, the writ petition stands allowed. No cost. 19. A copy of this judgment shall be furnished to Mr. S. Sarma, learned State Counsel, for his doing the needful.