JUDGMENT : Heard Mr. B. D. Konwar, learned Sr. Counsel for the petitioners and Mr. B. J. Ghosh, learned Govt. Advocate, Assam, who has produced the record. 2. Since the subject matter and relief sought for in both the writ petitions are the same, those were heard together and are being disposed of by this common order. 3. Petitioners had initially filed WP(C) No. 5818/2009 but after obtaining additional materials at a subsequent stage, WP(C) No. 3324/2012 was filed. 4. Matter relates to selection and appointment to the post of Forester Gr-I in the Forest Department, Govt. of Assam. 5. An advertisement dated 02.02.2008 was issued by the Principal Chief Conservator of Forests, Assam to fill up 73 vacancies in the post of Forester Gr-I. In the advertisement, the breakup of the vacancies was mentioned as under:- General (UR) 46 SC 5 ST(P) 7 ST(H) 4 OBC/MOBC 11 Total 73 The advertisement mentioned that there would be written test of 100 marks, physical fitness test and viva voce test. However, the marks allotted for physical fitness test and viva voce test were not mentioned. 6. Petitioners belong to the general (UR) category and had responded to the said advertisement. Written test was held on 01.02.2009. Results of the written test were declared on 18.06.2009. In all 630 candidates had qualified in the written test including the petitioners. Physical efficiency test was held on 11.08.2009. Petitioners and other male candidates had to undertake walking test of 26 Kms. to be completed within 4 hrs. Female candidates had to cover 16 kms. within 4 hrs. 7. According to the petitioners they had qualified in the physical efficiency test and thereafter they were declared to be medically fit. They were called to appear in the viva-voce test and they appeared in such test. 8. Select list was published on 17.12.2009. However, names of the petitioners were not included in the list of 73 selected candidates. 9. Finding their names not included in the list of selected candidates, petitioners initially approached this Court by filing WP(C) No. 5818/2009 assailing the legality and validity of the selection process on various grounds. Thereafter, on applications submitted by the petitioners under the Right to Information Act, 2005, they were furnished certain relevant information which led to filing of WP(C) No. 3324/2012 where in all the selected candidates under the UR category have been arrayed as respondents. Thereafter, on applications submitted by the petitioners under the Right to Information Act, 2005, they were furnished certain relevant information which led to filing of WP(C) No. 3324/2012 where in all the selected candidates under the UR category have been arrayed as respondents. In this case, petitioners have sought for quashing of the selection of the candidates under the UR category. 10. Petitioners omission from the select list has been ascribed to arbitrariness and unfairness in the selection process resulting in selection of candidates on the basis of pick and choose. Cut off mark for UR candidate was 72 in the written test but the candidate at Sl. No. 51 Sri Amrit Doley, who was selected as UR candidate, had secured only 67 marks in the written test. Therefore, he could not have been selected for the viva voce test under the UR category. All the female candidates selected under the UR category had obtained marks in the written test well below the cut off mark of 72. Yet they were short listed for the viva voce test. In the viva voce test all the selected candidates belonging to the UR category had received exceptionally high marks ranging from 42.5 to 47 out of 50 except the candidate at Sl. No. 48, who was awarded 22 marks presumably because he had secured very high marks in the written test, 91 to be precise. Prescribing lower cut off marks for women candidate was not justified. While in the advertisement, number of vacancies earmarked for UR category was shown as 46 but when the select list was published, it was found that only 38 candidates were selected under the UR category. This had adversely affected the prospects of the petitioners. Another contention advanced is that petitioner No. 1 had answered question Nos. 9, 19, 45, 48 & 54 in the written examination correctly but those answers were marked as wrong by the examiner. Consequently, no marks were awarded to him for the said questions. Likewise, petitioner No. 2 had correctly answered question Nos. 2, 9, 19, 45, 48, 52 & 68 but in his case also those were marked as wrong and denied any marks. Petitioner No. 1 had secured total marks of 100 whereas petitioner No. 2 had secured total marks of 95. Likewise, petitioner No. 2 had correctly answered question Nos. 2, 9, 19, 45, 48, 52 & 68 but in his case also those were marked as wrong and denied any marks. Petitioner No. 1 had secured total marks of 100 whereas petitioner No. 2 had secured total marks of 95. If the additional marks were added, they would have been selected as the last selected UR category candidate had secured overall 101 marks in the selection. It is with the above grievance that the two writ petitions have been filed seeking quashing of the selection and appointment of the selected candidates under the UR category and to consider appointment of the petitioners. 11. Respondents have filed identical affidavits in both the cases. Stand taken in the affidavits is that recruitment to the post of Forester Gr-I was carried out in terms of the Assam Junior Forest Service Rules, 2005. It is stated that though in the advertisement, number of vacancies earmarked for UR category was shown as 46, only 38 vacancies were filled up by UR category. It is stated that written test was conducted by the AMTRON, an Assam Government Undertaking, and the interview was conducted by the Forest Department. Selection process was carried out in a transparent manner and strictly on the basis of merit. Petitioner No. 1 had secured 100 marks whereas petitioner No. 2 had secured 95 marks. The last selected candidate under the UR category had secured 101 marks. Selection for various reserved categories was made as per roster. As per the roster, the breakup of various reserved categories were as under:- ST(P) 7 ST(H) 3 SC 4 OBC/MOBC 21 Total 35 12. This led to reduction in the number of vacancies earmarked for UR category from 46 to 38 (73-35=38). A total of 21 female candidates were also selected across the various categories having regard to the requirement of horizontal reservation for women. Final select list was notified on 17.12.2009 and published in two newspapers i.e. “The Assam Tribune” and “Aji”. Regarding the case of Sri Amrit Doley, it has been explained that initially he was short listed for the viva voce test as a ST(P) candidate on the basis of marks secured by him in the written test. Final select list was notified on 17.12.2009 and published in two newspapers i.e. “The Assam Tribune” and “Aji”. Regarding the case of Sri Amrit Doley, it has been explained that initially he was short listed for the viva voce test as a ST(P) candidate on the basis of marks secured by him in the written test. Subsequently, at the final stage when he could be selected on the basis of his merit, he was included in the select list of UR category. 13. Submissions made by learned counsel for the parties are on pleaded lines and therefore a detailed reference to the submissions so made is considered not necessary. However, the submissions made have been considered. 14. After hearing learned counsel for the parties and on perusal of the materials on record including the record produced by Mr. Ghosh, the following broad features of the lis can be culled out. 16. The Assam Junior Forest Service Rules, 2005 has been framed in exercise of power conferred by the proviso to Article 309 of the Constitution of India to regulate recruitment and conditions of service of persons appointed to the Assam Junior Forest Service. The cadre of Forester Gr-I is included in the Assam Junior Forest Service. As per Rule 7 (2) of the aforesaid Rules, 60% of the posts of Forester Gr-I shall be filled up through direct recruitment on the basis of competitive examination to be conducted by a Selection Committee, the constitution of which is provided in the Rules itself. The said Rule provides that there shall be a written test of 3 hrs. on the following subjects- 1. General Mathematics of Higher Secondary or equivalent standard. 2. English and vernacular dictation. 3. Essay in English. 4. General Knowledge. It also provides for a physical fitness test comprising of 26 Kms. walking to be covered within 4 hrs. followed by a medical examination and then viva voce test. Thus the selection process comprises of three stages-written test, physical fitness test and viva voce test. However, the Rule is silent as regards allocation of marks for the three stages of the selection process. 16. Having noticed the statutory framework governing such recruitment process, the record produced by Mr. Ghosh may now be perused. The record shows that 100 marks were allotted for the written test and 50 marks for the viva voce test. However, the Rule is silent as regards allocation of marks for the three stages of the selection process. 16. Having noticed the statutory framework governing such recruitment process, the record produced by Mr. Ghosh may now be perused. The record shows that 100 marks were allotted for the written test and 50 marks for the viva voce test. The physical efficiency test was treated as a qualifying test. In other words, the selection process comprised of 150 marks, 100 marks for written test and 50 marks for viva voce test. It is also seen from the record that all the 38 candidates selected under the UR category uniformly secured very high marks in the viva voce test. All of them barring one had secured marks ranging from 42.5 to 47. Only Sri Dharmeswar Kutum at Sl. No. 48 secured 22 marks in the viva voce test but because of securing very high marks in the written test i.e. 91 which is second only to the highest marks secured by S. Ahmed at Sl. No. 1 i.e., 95, it did not make any difference to the final outcome as overall Sri Dharmeswar Kutum secured 113 marks (91+22=113) which is much above the cut off marks of 101. None of the selected candidates under the reserved categories had secured such high marks in the viva voce test. As a matter of fact, none of the selected candidates belonging to the OBC/MOBC, SC, ST(H) and ST(P) categories had secured 40 marks or more in the viva voce test. Coming to the petitioners, it is seen that petitioner No. 1, Sri Arup Kr. Das had secured 74 marks in the written test and petitioner No. 2 Sri Ananta Pathak had secured 77 marks in the written test. Though they were short listed for the viva voce test, they secured much lesser marks in the viva voce i.e. 26 & 18 respectively. As a result, petitioner No. 1 secured 100 marks (74+26=100) and petitioner No. 2 secured 95 marks (77+18=95). Falling short of the cut off marks of 101 marks for UR category, the two petitioners were not selected and consequently not 17. In Ashok Kr. Yadav Vs. State of Haryana reported in AIR 1987 SC 454 the Hon’ble Supreme Court was considering selection made by the Haryana Public Service Commission to the Haryana Civil Service (Executive). Falling short of the cut off marks of 101 marks for UR category, the two petitioners were not selected and consequently not 17. In Ashok Kr. Yadav Vs. State of Haryana reported in AIR 1987 SC 454 the Hon’ble Supreme Court was considering selection made by the Haryana Public Service Commission to the Haryana Civil Service (Executive). One of the grounds of challenge to the selection made was that disproportionate marks were allotted for the viva voce test making the viva voce test the decisive factor in the process of selection. In that case it was found that marks allotted for the viva voce test was to the extent of 33.3 per cent in case of ex-serviceman officers and 22.2 per cent in case of other candidates. While considering that aspect of the matter the Supreme Court observed that selection made cannot be struck down on mere suspicion that evaluation of marks of the candidates in the viva voce test might be arbitrary. Court cannot sit in judgment over the marks awarded by interviewing bodies unless it is proved or it becomes obvious that the marking is plainly and indubitably arbitrary or affected by oblique motives. While observing that it is not for the Court to lay down how many marks should be allotted to the interview test, the Supreme Court was however categorical in its view that marks allotted for the viva voce test should be minimal so as to avoid charges of arbitrariness. In the facts of that case, the Supreme Court held that marks allotted for the viva voce test cannot be as high as 33.3 per cent. Even allocation of 22.2 per cent was found to be excessive and not justified. 18. Coming to the facts of the present case, it is already noticed that there is no statutory prescription for allocation of marks between the written test, physical eligibility test and viva voce test. It was administratively decided by the departmental authorities that there would be 100 marks for written test and 50 marks for viva voce test with the physical eligibility test being of qualifying nature. In the process, it is noticed that the selection particularly in the UR category had been greatly influenced by the unusually high marks secured by the selected candidates in the viva voce test. In the process, it is noticed that the selection particularly in the UR category had been greatly influenced by the unusually high marks secured by the selected candidates in the viva voce test. The marks allotted in the viva voce test to those candidates become decisive in the selection. This no doubt leads to suspicion about the fairness of the selection process but as observed by the Apex Court, suspicion however strong it may be, cannot take the place of proof. But nonetheless, this is an area which needs to be addressed by the authorities so that all scope of favouritism and arbitrariness are eliminated. 19. There is also another aspect of the matter. It is seen that against 73 vacancies, 630 candidates were short listed for the viva voce test following the written test. This is also an abnormally high figure being more than the ratio of 1:8. In the said case of Ashok Kr. Yadav (supra) the Supreme Court observed that the number of candidates to be called for interview in order of marks secured in the written examination should not exceed twice the number of vacancies. Otherwise, the viva voce test which is to some extent subjective or discretionary in its evaluation will become totally arbitrary, becoming the decisive factor in the process of selection. 20. Having said so, it is seen that answer to atleast one question out of the questions mentioned by the two petitioners as having been correctly answered but marked as incorrect in the written test is correct as per the answer key prepared by the respondent No. 6 which is in the record. This is the answer to question No. 19 in both the cases. Petitioners had given option A as the correct answer to question No. 1 which was marked as incorrect. As per the answer key, the correct answer is option A. Each question carried one mark. Thus both the petitioners were entitled to one additional mark. This addition of 1 mark may have some bearing on the final selection of the petitioners though Court is reluctant to carry out the said exercise by itself. 21. In addition to the above, the reduction in the number of vacancies for UR category from 46 to 38 may also require a re-examination having regard to the claim of the two petitioners as UR category candidates. 21. In addition to the above, the reduction in the number of vacancies for UR category from 46 to 38 may also require a re-examination having regard to the claim of the two petitioners as UR category candidates. As noticed above, in the advertisement vacancies for the UR category was shown as 46 but in the final selection, only 38 candidates have been selected under the UR category. 22. Having regard to the above, Court is of the view that Principal Chief Conservator of Forests, Assam should look into the specific grievance of both the petitioners in the light of the discussions made above and following such re-examination, if it is found that petitioners come within the zone of selection, consequential decision may be taken but without disturbing any of the selected candidates who it is stated have been already appointed in the meanwhile. Ordered accordingly. Principal Chief Conservator of Forests shall pass a speaking order and communicate the same to the two petitioners within a period of 3 (three) months from the date of receipt of a certified copy of this order. 23. Writ petition is accordingly disposed of. 24. Record produced by Mr. B. J. Ghosh, learned Govt. Advocate is returned back.