ORDER : 1. At the instance of the Department of Higher Education of the State of Tripura, the Tripura Public Service Commission (hereinafter referred to as “TPSC”) issued an advertisement on 11.6.2014 inviting applications for filling up 150 permanent posts of Assistant Professor (Group-A Gazetted) in the Degree colleges. These 150 posts were spread over 30 different subjects. The number of posts in each subject is as follows:- S. No. Name of Subjects/disciplines No. of Posts 1 Library & Information Science 02 2 Bio Chemistry 02 3 Arabic 04 4 Microbiology 02 5 English 10 6 Bengali 10 7 Education 10 8 Philosophy 07 9 History 10 10 Pol. Science 05 11 Bio. Technology 02 12 Physics 05 13 Mathematics 05 14 Chemistry 05 15 Zoology 08 16 Botany 08 17 Physiology 08 18 Environmental Science 07 19 Economics 05 20 Physical Education 08 21 Sanskrit 04 22 Psychology 02 23 Geography 05 24 Hindi 03 25 Sociology 03 26 Information Technology 02 27 CSE 02 28 Statistics 02 29 Commerce 03 30 Defense Studies 01 2. In the advertisement, it was mentioned as follows:- “Category-wise Reservation:- All posts are grouped for the purpose of reservation and shall not be segregated subject/discipline-wise for identification of a particular post for a particular category against any subject/discipline. In case of non-availability of required number of suitable ST/SC candidates, the remaining vacancies up to a maximum ceiling of 62 posts will be filled up by suitable General Candidates.” 3. Petitioner in WP (C) No. 172 of 2015 Smti. Bijaya Bhattacharya who belongs to the general category had applied for the post of Assistant Professor in the subject of Geography. She was not even called for the interview and in her case, the two main issues urged by her are: Whether, in regard to the posts which were de-reserved there could be a stipulation that first only Scheduled Caste (SC) and Scheduled Tribe (ST) candidates would be considered and only if candidates belonging to these categories were not available, would general category candidates be considered for a maximum 62 posts? It has been urged by Sri Arijit Bhowmik, learned counsel appearing for the petitioner in this case that once posts are de-reserved they are de-reserved for all intents and purposes and then they have to be treated as general category posts and there is no question of the SC/ST candidates being considered for these posts on priority or on preferential basis. It was also urged by Sri Arijit Bhowmik that reserved posts cannot be carried forward for more than one recruitment year. He urges that this is the fourth recruitment year and, therefore, the posts cannot be carried forward. 4. The next issue raised in this petition is that the reservation of the posts should have been made subject-wise. It is urged that in case these posts are not reserved subject-wise, there is uncertainty as to which post is reserved and which is unreserved and it is also contended that there are some departments where only reserved category candidates have been appointed not on merit but on the basis of reservation and efficiency in these departments is adversely affected when the reservation exceeds 50% in each department. This petition was filed on 10.7.2015 before the process of interviews had started. 5. The other petitions were filed after the interviews took place and these have been filed by candidates belonging to the Scheduled Tribe Category who were unsuccessful. In these cases Sri A.K. Bhowmik, learned Sr. Counsel appears for the petitioners and the main issues raised by him are:- (i) That, the de-reservation of posts was illegal; (ii) He submits that reservation should have been subject-wise; (iii) Lastly, it is submitted that the selection procedure is totally illegal and the guidelines laid down by the University Grants Commission (UGC) have not been followed and selection process of the TPSC is not transparent, objective and credible. We now proceed to deal with each one of these issues. De-reservation: 6. To appreciate the arguments with regard to reservation and de-reservation, it would be necessary to refer to the relevant provisions of the Tripura Scheduled Castes & Scheduled Tribes Reservation Act, 1991 (hereinafter referred to as “the Act”) as well as the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 (hereinafter referred to as “the Rules”). 7. De-reservation: 6. To appreciate the arguments with regard to reservation and de-reservation, it would be necessary to refer to the relevant provisions of the Tripura Scheduled Castes & Scheduled Tribes Reservation Act, 1991 (hereinafter referred to as “the Act”) as well as the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 (hereinafter referred to as “the Rules”). 7. Section 4 of the Act provides for reservation for SC and ST in services and posts under the State and the relevant portion reads as follows:- “4. Reservation for Scheduled Castes and Scheduled Tribes in services and posts under the State to be filled up by direct recruitment. (1) Reservation for the Scheduled Castes and the Scheduled Tribes in any vacancy or vacancies in services or posts in an establishment which are to be filled up by direct recruitment shall be regulated in the following manner, namely:– (a) There shall be seventeen percent reservation for the Scheduled Castes and thirty one percent reservation for the Scheduled Tribes in the manner as set out in the schedule.” 8. The Act contains a Schedule. There are two clauses dealing with filling up of reserved category posts by persons belonging to the unreserved category. These are clauses 10 and 11 and read as follows:- “10. If, for want of any reserved category of person or for any other reason, any reserved post cannot be filled in any recruitment year, the roster point shall be kept vacant till the post is filled by a person of appropriate reserved category. Provided that in case of non-availability of Scheduled Caste/Scheduled Tribe candidates unfilled reserved posts may be filled by exchange between Scheduled Tribes and Scheduled Castes according to the procedure prescribed. 11. A reserved post may be filled by a person of un-reserved category only when the reserved post is de-reserved according to the procedure prescribed.” 9. A bare reading of the provisions of the Act shows that in terms of Section 4 of the Act in all services and posts under the State, there has to be reservation of seventeen percent for the SC and thirty-one percent for the ST. Therefore, if there are 100 posts in a cadre, 17 will fall to the share of SC, 31 to the share of ST and 52 percent will be filled in on merit. Therefore, if there are 100 posts in a cadre, 17 will fall to the share of SC, 31 to the share of ST and 52 percent will be filled in on merit. Sub-clause (b) of Section 4(1) provides that those candidates who are SC or ST but qualify on their own merit will be included in the general list and not against the reserved quota. 10. Section 17 of the Act empowers the State Government to make rules for carrying out the purposes of the Act. In exercise of such powers rules have been framed and we are in this case mainly concerned with sub-rules (8) and (9) of Rule 8 which read as follows:- “(8) (a) If it is found that the required number of Scheduled Castes candidates or Scheduled Tribe candidates for filling up reserved vacant posts are not available the appointing authority may initiate a proposal for filling up the reserved vacant posts by exchange method, i.e. for filling up the vacant posts reserved for Scheduled Tribe candidates, by available Scheduled Caste candidates or for filling up the vacant posts reserved for Scheduled Caste candidates, by available Scheduled Tribe candidates. He shall send the proposal to the Department for Welfare of Scheduled Castes, Other Backward Classes and Minorities and to Tribal Welfare Department for their concurrence. When concurrence is received the appointing authority will make appointment subject to the condition that the vacant posts will be carried forward. (b) If candidate belonging to Scheduled Castes or Scheduled Tribes is not available by exchange method, then the vacant post may be filled up by deputation/transfer according to concerned Recruitment Rules. Provided that notwithstanding anything contained in any other rules a reserved vacant post may be filled up by deputation/reserved category of officers/employees holding analogous posts of identical scale of pay and in case of non-availability of officers/employees holding analogous posts, by deputation of reserved category of officers/employees holding lower posts equivalent to the feeder posts. (c) If the required number of candidates are not available even after further attempt within a recruitment year the reserved vacant posts shall be carried forward to the next recruitment year. (c) If the required number of candidates are not available even after further attempt within a recruitment year the reserved vacant posts shall be carried forward to the next recruitment year. (9) (a) If the appointing authority after observing the procedures of sub-rule (8), considers it necessary to fill up any reserved vacant post by candidate of unreserved category in the exigencies of public service he may initiate a proposal for de-reservation of the required number of reserved vacant posts. Proposal for de-reservation of vacant posts reserved for Scheduled Caste shall be sent to the Department for Welfare of Scheduled Castes, Other Backward Classes and Minorities and proposal for de-reservation of vacant posts reserved for Scheduled Tribes to the Tribal Welfare Department for their concurrence. On getting the concurrence of the Tribal Welfare Department or Department for Welfare of Scheduled Castes, Other Backward Classes and Minorities as the case may be, the administrative Department concerned will obtain approval of the Council of Ministers and then issue notification de-reserving vacant posts. (b) When a vacancy against any post or service is de-reserved it shall be carried forward. (c) Department for Welfare of Scheduled Castes, Other Backward Classes and Minorities or Tribal Welfare Department may accord concurrence for de-reservation in service or post only when it is satisfied that the Department concerned exhausted all possible efforts including the method of deputation and exchange of vacant posts between Scheduled Castes and Scheduled Tribes candidates, to fill up a reserved vacant post.” 11. Clause (a) of sub-rule (8) of Rule 8 provides that if it is found that the requisite number of SC and ST candidates for filling up the reserved vacant posts are not available, the appointing authority can initiate a proposal for filling up the posts by exchange method, i.e. the posts meant for ST can be filled up by SC candidates if adequate number of ST candidates are not available and vice versa. However, before making such appointments a proposal has to be sent to the departments dealing with the welfare of SC and ST for its concurrence and only after the concurrence is received the appointments can be made but the vacant posts of the category whose posts have been used up are to be carried forward. 12. We are not concerned with clause (b) which deals with filling up of the posts on the basis of deputation etc. 12. We are not concerned with clause (b) which deals with filling up of the posts on the basis of deputation etc. Clause (c) of sub-rule (8) provides that if the requisite number of reserved category candidates is not available even after further attempt within a recruitment year, the reserved (vacant) posts shall be carried forward to the next recruitment year. Sri Arijit Bhowmik, learned counsel, has urged that this means that the posts can be carried forward for only one year and not more. 13. Sub-rule (9) provides that if after observing the formalities and procedures laid down in sub-rule (8) the appointing authority is of the view that it is necessary to fill up the vacant posts in the reserved category by candidates of unreserved category in the larger exigencies of public service, then the appointing authority can initiate a proposal for de-reservation of the requisite number of reserved (vacant) posts. This proposal for de-reservation has to be routed through the Department of Welfare for SC or ST, as the case may be, keeping in view the nature of the posts to be de-reserved. However, such a proposal can only be approved by the Council of Ministers and thereafter a notification de-reserving the vacant posts has to be issued. Clause (b) of sub-rule (9) provides that when a vacancy against any post or service is de-reserved it will be carried forward. Sub-clause (c) provides that these posts can only be de-reserved when the concerned department dealing with the welfare of the scheduled category in question is satisfied that all efforts have been made to fill up the posts by the methods provided in sub-rule (8). 14. It is more than obvious that de-reservation is the last resort. If adequate numbers of reserved category candidates are not available, the first attempt has to be made to fill in the posts by exchange method amongst the reserved categories. If this method fails, then an attempt should be made to fill up the post by deputation or transfer according to the recruitment rules. It is only if both the methods fail that de-reservation of posts can be done and to safeguard the interest of the reserved categories, the Act provides that the approval of the Council of Ministers has to be obtained and thereafter, a notification has to be issued. 15. It is only if both the methods fail that de-reservation of posts can be done and to safeguard the interest of the reserved categories, the Act provides that the approval of the Council of Ministers has to be obtained and thereafter, a notification has to be issued. 15. We have no hesitation in holding that de-reservation can only be resorted to if the Council of Ministers is satisfied that it is not possible to fill up the posts from amongst the reserved categories and, therefore, the posts are required to be filled up from members belonging to the general category. Once such a decision is taken and the posts are de-reserved, then these posts will belong to the general category. The vacancies against the posts so de-reserved may be carried forward to the next year but as far as the de-reserved posts are concerned, they cannot be treated as reserved posts. No doubt, reserved category candidates can appear and if selected on merit be adjusted but these posts cannot be earmarked for reserved category candidates not on the basis of merit but on the basis of reservation. 16. As far as the present case is concerned, there are 661 posts of Assistant Professor in various general Degree Colleges in different faculties. As per the roster, there should be 205 ST candidates and 112 SC candidates. Before the process of interview started only 477 out of the 661 posts were filled in. As per the roster, out of 477 posts, 361 were filled up by Assistant Professor belong to the unreserved category, 52 belong to the ST and 64 belong to the SC. Even if all the 661 posts are taken into consideration, the unreserved category could have at the most occupied 344 posts and if only 477 posts are taken into consideration, the unreserved category could have occupied only 248 posts. Therefore, the general category candidates are much in excess. The STs were occupying only 52 posts out of 477 whereas they should have occupied 148 posts out of 477 and in the total 661 posts, their share was 205 posts. The position of the SC is better than that of the ST. In 661 posts, the SCs were eligible to occupy 112 posts. Out of 477 posts, they would occupy 81 posts but they were only actually occupying 64 posts. The position of the SC is better than that of the ST. In 661 posts, the SCs were eligible to occupy 112 posts. Out of 477 posts, they would occupy 81 posts but they were only actually occupying 64 posts. After the last recommendation made by the TPSC wherein 18 ST candidates and 16 SC candidates were appointed, 150 posts remained vacant, 125 falling to the share of ST and 25 to the share of SC. No posts remained vacant to be filled in from amongst general category candidates. 17. A proposal was submitted in January, 2014 by the Higher Education Department that there is dearth of NET/SLET qualified candidates belonging to the ST category and, therefore, the shortfall of a large number of 150 teachers can be mitigated if 50% posts of ST category are de-reserved. The Minister, Higher Education approved this noting on 18.01.2014 and thereafter the proposal was put up before the Cabinet. The memorandum note put up to the Cabinet clearly provided that the position of vacancies after de-reservation of 50% ST category posts would be as follows:- UR 62 ST 63 SC 25 The Council of Ministers in its meeting held on 11.02.2014 approved the proposal of the department in toto. Thereafter, a notification was issued on 18.02.2014 which reads as follows:- “GOVERNMENT OF TRIPURA EDUCATION (HIGHER) DEPARTMENT No.F.1(435)-DHE/ESTT(G)/2006 Dated, Agartala, the 18-02-2014. NOTIFICATION It has been decided by the Government in the Education (Higher) Department to fill up 150 vacant posts of Assistant Professor of Government (General) Degree Colleges through the Tripura Public Service Commission. 2. Considering the acute shortage of teachers in Government (General) Degree Colleges and non-availability of adequate number of eligible candidates under ST categories in Tripura, the Governor of Tripura has been pleased to order for de-reservation of 50% vacant posts of Assistant Professor, Govt. (General) Degree College out of 125 (one hundred twenty five) ST vacancy i.e. 62 ST posts of Assistant Professors, Government (General) Degree Colleges owing to filling up these post by the UR candidates. After the instant de-reservation of the said posts the available vacancies may be filled up in following fashion i.e. UR-62, ST-63 & SC-25. However, carry forward of the said de-reserved vacancies shall be adjusted against future vacancy. 3. This is issued on the basis of the concurrence of ST Welfare Department vide their U.O.No.12704/T.W/13 dated 05-02-2014. After the instant de-reservation of the said posts the available vacancies may be filled up in following fashion i.e. UR-62, ST-63 & SC-25. However, carry forward of the said de-reserved vacancies shall be adjusted against future vacancy. 3. This is issued on the basis of the concurrence of ST Welfare Department vide their U.O.No.12704/T.W/13 dated 05-02-2014. By order of the Governor, (18.02.2014) Sd/- (U. Debbarma) Under Secretary to the Government of Tripura.” 18. It is thus clear that the Cabinet took a decision to fill up 62 out of the 125 posts of the ST category as unreserved posts. Though the notification issued on 18.02.2014 states that it was issued after obtaining concurrence of the ST Welfare Department vide their letter dated 05.02.2014, the Secretary of the Tribal Welfare Department sent a letter on 21.05.2014, which reads as follows:- “GOVERNMENT OF TRIPURA TRIBAL WELFARE DEPARTMENT No.F.4-62(57)/TW/R. Cell/2014/22,518-19. Dated, the 21st May, 2014. To, The Secretary, Education (Higher) Department, Govt. of Tripura, Agartala. Sub:- Recruitment to the post of Assistant Professor. Sir, In reference to the proposal by the Education (Higher) Department for de-reservation to the post of Assistant Professor, Tribal Welfare Department has agreed for de-reservation of 50% of the total vacant post of Assistant Professor reserved for ST candidates subject to approval by the Council of Ministers and this was communicated to the Education (Higher) Department. 2. It has now been decided that while filling up the post of Assistant Professor, the cases of SC & ST candidates may be considered first (upto 62 posts) like previous occasion, so that SC/ST candidates are not deprived, and thereafter, the cases of UR candidates may be considered. This has approval of Hon’ble Minister, TW. Vide U.O. No.100604/Min/TW/14/dated 19/01/ 2014. (21.5.2014) Yours faithfully, Sd/- (L.H. Darlong) Secretary TW.” 19. This letter appears to have been issued after obtaining approval of the Minister of Tribal Welfare on 19.01.2014. We fail to understand how the Minister of Tribal Welfare could have overruled or modified the decision of the Council of Ministers which apparently had been taken after obtaining approval of the Tribal Welfare Department. Thereafter, a fresh notification was issued on 02.06.2014, relevant portion of which reads as follows:- “2. We fail to understand how the Minister of Tribal Welfare could have overruled or modified the decision of the Council of Ministers which apparently had been taken after obtaining approval of the Tribal Welfare Department. Thereafter, a fresh notification was issued on 02.06.2014, relevant portion of which reads as follows:- “2. Whereas, it was observed that only a limited number of ST candidates were recommended by the TPSC last time in the year 2013, though there were large number of ST vacancies due to non-availability of suitable ST candidates in the State. In this context, a proposal for de-reservation of reserved vacancies was placed for consideration of the State Government. However, considering the pros & cons of the matter, it has been decided by the State Government that during proposed exercise of recruitment against 150 (one hundred fifty) reserved posts, efforts may be made to recommend SC/ST candidates for those posts at the first instance. After recommendation of suitable SC/ST candidates, General category candidates as found suitable for appointment as per R/Rs may be recommended by the TPSC for appointment against the remaining posts subject to condition that equivalent number of posts of UR category would be adjusted in future. The recruitment of UR candidates against ST reserved posts in the manner suggested above, may be allowed subject to the maximum ceiling of 62 (sixty two) posts, for which ST Welfare Department have already communicated their concurrence for de-reservation.” 20. By this notification, the whole process was changed and even with regard to the 62 posts which were de-reserved it was mentioned that first an attempt would be made to fill up these posts from amongst the SC, ST category candidates and only after recommending the suitable SC, ST candidates the vacant posts, if any, would be filled in from the suitable general category candidates as recommended by the TPSC. Thereafter, the advertisement referred to hereinabove was issued in which the category wise reservation has been made group wise and it is mentioned that in case of non-availability of required number of suitable SC, ST candidates, the remaining vacancies up to a maximum of 62 posts may be filled up from amongst suitable general category candidates. 21. Thereafter, the advertisement referred to hereinabove was issued in which the category wise reservation has been made group wise and it is mentioned that in case of non-availability of required number of suitable SC, ST candidates, the remaining vacancies up to a maximum of 62 posts may be filled up from amongst suitable general category candidates. 21. In WP (C) No. 172 of 2015, it was urged by Sri Arijit Bhowmik that once the Council of Ministers had taken a decision to de-reserve the posts, there was no power or authority with the Minister or any other authority to change this decision and such a decision could only be changed by the Council of Ministers. He also submits that once the posts were de-reserved, they had to be filled in on the basis of merit alone and 62 posts should have been filled up only on merit. On the other hand, the contention of Sri A.K. Bhowmik, learned Sr. Counsel appearing for candidates belong to the Scheduled Tribes who have not been selected is that the entire process of de-reservation is illegal. He submits that de-reservation can be resorted to only when the State is satisfied that despite making attempts it is not possible to fill in the posts by the SC and ST candidates. According to Sri A.K. Bhowmik, the State can take a decision to de-reserve the posts only after the process of interviews is over and it is found that sufficient number of reserved category candidates are not available to fill up the posts. 22. On the other hand, the submission of the learned Advocate General is that keeping in view the record of the last 4(four) selections, the State had sufficient material before it to come to the conclusion that sufficient number of candidates belonging to the ST category would not be available and, therefore, a conscious decision was taken by the State to de-reserve 62 posts. He submits that in all cases it is not necessary for the selection process to be over to start the process of de-reservation. He submits that in all cases it is not necessary for the selection process to be over to start the process of de-reservation. The learned Advocate General fairly submits that one Minister cannot modify or overrule the decision of the Council of Ministers but according to him this is a mere irregularity and the State has by issuing the notification indicated its view that even in the de-reserved posts, first SC/ST candidates should be considered and then only general category candidates should be considered. 23. On consideration of the submissions of the counsel and the provisions of law, we are clearly of the view that the process for de-reservation can only begin when the department concerned is satisfied that after following the procedure laid down in sub-rule (8) of Rule 8, it is not possible to fill in the posts belong to the ST (in the present case) in the reserved category by the exchange method. There can be no appointment by transfer or deputation to the posts of Assistant Professor since they all have to be filled in by direct recruitment. We are, however, not in agreement with the learned counsel for the petitioners that every time the State should wait for the process of recruitment to be over and after recruiting the SC and ST candidates, then alone the process of de-reservation should start. 24. We are dealing with the posts of lecturers. Out of a total of 661 posts, almost one-fourth, i.e. 150 are vacant. If these posts are allowed to remain vacant, obviously the studies of the students will be adversely affected. These Assistant Professors have to be posted in many colleges in the State. In case, these posts are not filled up, in many subjects there would be no teachers in some colleges. Such a position is best avoided. These posts cannot be permitted to remain vacant. Therefore, there is no harm if keeping in view the past experience the State makes a provision in the advertisement itself that if sufficient number of SC and ST candidates, as the case may be, are not available and it is not possible to fill in the posts by the exchange method, then the remaining posts shall be deemed to be de-reserved and to be filled in on merit from amongst the general category candidates. In fact, we would commend such an approach. 25. In fact, we would commend such an approach. 25. However, the problem in the present case is that the decision of the State taken by the Council of Ministers is to de-reserve 62 posts. Sri Arijit Bhowmik, learned counsel for the petitioner in WP (C) No. 172 of 2015 is justified in urging that once these posts are de-reserved, then there is no question of giving preferential treatment or priority to the reserved categories. No doubt, later the State issued a notification modifying the earlier notification dated 18.02.2014 but according to us, the decision of the Council of Ministers could not have been overruled by one Minister. This is against the rules of business, against the principle of democracy and, in fact, against the statutory provision contained in sub-rule (9) of Rule 8 which provides that the decision has to be taken by the Council of Ministers. In view of above discussion, we are clearly of the view that the subsequent notification dated 02.6.2014 is totally illegal and ultra vires the notification issued on 18.02.2014. Time cap to carry forward: 26. Relying upon clause (c) of sub-rule (8), it was urged by Sri Arijit Bhowmik, learned counsel for the petitioner in WP (C) No. 172 of 2015 that the reserved vacant posts can be carried forward only to the next recruitment year. It is not disputed that under the rules the first recruitment took place in the year 2007, the second in 2010, the third in 2013 and this is the fourth recruitment which took place in the year 2014. The contention of Sri Bhowmik is that this carry forward of posts cannot be permitted to go beyond one recruitment year. 27. In M. Nagaraj and others vs. Union of India and others, (2006) 8 SCC 212 , the Apex Court dealing with the concept of reservation held as follows:- “39. Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is an anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.” 28. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.” 28. Thereafter, the Apex Court went on to hold that it was concerned with the right of an individual to equal opportunity on the one hand and the right of the persons belonging to the backward or reserved categories to get preferential treatment to bring about equal level-playing field in the matter of public employment. These conflicting claims had to be considered in the light of maintaining efficiency in service. In para-44 the Apex Court held as follows:- “EQUITY, JUSTICE AND MERIT: 44. The above three concepts are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case. Equality in law is different from equality in fact. When we construe Article 16(4), it is equality in fact which plays the dominant role. Backward classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard-concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the reservation.” 29. The Apex Court dealing with the issue of time cap held as follows:- “100. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time spread over a number of years over which unfilled vacancies are sought to be carried-over. These two are alternating factors and, therefore, if the ceiling-limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact situation.” 30. A Full Bench of this Court in Jayanta Chakraborty and others vs. State of Tripura and others, (2015) 1 TLR 846 had the opportunity of dealing with the provisions of the Tripura Scheduled Castes & Scheduled Tribes Reservation Act, 1991 as well as the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 and with regard to time cap the Full Bench held as follows:- “103. The Apex Court in Nagaraj’s case also clearly laid down that reserved posts cannot be allowed to remain vacant indefinitely just because the candidates from the reserved category are not available. The Apex Court introduced the principle of time cap and held that the State Government must keep an upper time limit in which the posts must be filled in from the reserved category. In case, the posts within that time period cannot be filled in from the reserved categories, then general category candidates can be appointed against such posts. This is essential to maintain efficiency in service. This Court can take judicial notice of the fact that posts are created and sanction granted to create posts only after an exercise is conducted and it is determined that such posts are necessary for efficiently running the administration. In case, these posts are not filled up, this would result in inefficiency. A post may be kept vacant for a year or two years but if posts are kept vacant indefinitely, then efficiency is definitely going to be adversely affected. As noted by the Apex Court in Nagaraj’s case (supra), in many States a time cap of three years has been laid down. 104. In Tripura, there is no time cap. This again shows that the State of Tripura did not take into consideration Nagaraj’s judgment and there is no application of mind after this judgment was delivered. We are aware that the State is the best judge of what should be the time cap. There can be a different time cap for different categories of posts. This again shows that the State of Tripura did not take into consideration Nagaraj’s judgment and there is no application of mind after this judgment was delivered. We are aware that the State is the best judge of what should be the time cap. There can be a different time cap for different categories of posts. If posts of Peons remain vacant for years, that may not affect efficiency of administration but if posts of Specialists in hospitals, Engineers, Professors, Teachers are kept vacant for years on end, this will not only affect the efficiency of the administration but it will also affect the health of the people and violate the human rights of the citizen in as far as they shall be denied of their right to live a proper and adequate life where their health and educational reliefs are taken care of. 105. In view of the above discussion, we are clearly of the view that para-11 of the schedule to the Act is not valid and the State must fix a time cap in this regard. We direct the State to ensure that taking into consideration the nature of the post and the law laid down in Nagaraj’s case and subsequent judgments, the time cap must be laid down for separate categories of posts.” 31. We, in the said judgment, have clearly held that posts of Specialists in hospitals, Engineers, Professors, Teachers cannot be kept vacant for years on end. Therefore, a time cap has to be applied but that time cap is not to be fixed by the Court and we in the earlier judgment have given a direction to the State to fix a time cap. We are aware that our judgment has been challenged before the Apex Court but the operation of the law laid down by us has not been stayed. In the said case, we have clearly held that in Tripura there is no time cap and, therefore, as at present we cannot agree with the submission of Sri Arijit Bhowmik that recruitment is to be carried forward only to the next recruitment year. While taking this view, we place reliance on clause (b) of sub-rule (9) which provides that when a vacancy of any post is de-reserved, it shall be carried forward and there is no limit to the period for which it is to be carried forward. While taking this view, we place reliance on clause (b) of sub-rule (9) which provides that when a vacancy of any post is de-reserved, it shall be carried forward and there is no limit to the period for which it is to be carried forward. Though we are of the view that there should be a time cap but it cannot be said that the post cannot be carried forward for more than one recruitment year. Subject-wise reservation: 32. The next point urged before us is that reservation must be subject-wise. If all the posts are reserved, then there is no problem but if there is de-reservation, then the notification must clearly indicate which are the unreserved posts. It is contended on behalf of the petitioners that reservation must be subject-wise and cannot be across the board. It is contended that the rules provide for reservation and since in colleges different subjects are taught, reservation must be subject-wise. Each subject is different and a teacher of one subject cannot teach another subject. It is contended that if any particular department is filled in only by those appointed on the basis of reservation and not on the basis of merit, then the reservation will be more than 50% in that particular department and this will adversely affect efficiency as laid down in Nagaraj’s case (supra). 33. On the other hand, on behalf of the State it is contended that reservation is cadre-wise and since all the posts of Assistant Professors are in one cadre carrying the same scale of pay, the reservation can be across the cadre. In the alternative, on behalf of the State it is submitted that for this time reservation may be permitted to be continued on cadre basis and in future, the State Government has undertaken that it will ensure that reservation for the post of Assistant Professor in teaching institutions is made subject-wise. 34. We may refer to certain decisions relied upon by the parties:- In Dr. Suresh Chandra Verma and others v. The Chancellor, Nagpur University and others, AIR 1990 SC 2023 the issue before the Apex Court was whether in an advertisement issued for appointment of teaching staff, the reserved category seats must be notified subject-wise. The Apex Court held as follows:- “7. Suresh Chandra Verma and others v. The Chancellor, Nagpur University and others, AIR 1990 SC 2023 the issue before the Apex Court was whether in an advertisement issued for appointment of teaching staff, the reserved category seats must be notified subject-wise. The Apex Court held as follows:- “7. The argument based on Section 57(4)(a) of the Act to support the procedure adopted by the University is, according to us, not well merited. The contention is that since Section 57(4)(a) requires the University to state in the advertisement only the total number of posts and the number of reserved posts and not post-wise, i.e., subject-wise, the employment notice in question was not bad in law. According to us, the word "post" used in the context has a relation to the faculty, discipline, or the subject for which it is created. When, therefore, reservations are required to be made "in posts" the reservations have to be post-wise, i.e., subject-wise. The mere announcement of the number of reserved posts is no better than inviting applications for posts without mentioning the subjects for which the posts are advertised. When, therefore, Section 57(4)(a) requires that the advertisement or the employment notice would indicate the number of reserved posts, if any, it implies that the employment notice cannot be vague and has to indicate the specific post, i.e., the subject in which the post is vacant and for which the applications are invited from the candidates belonging to the reserved classes. A non-indication of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates the object of the reservation policy. That this is also the intention of the legislature is made clear by Section 57(4)(d) which requires the selection committees to interview and adjudge the merits of each candidate and recommend him or her for appointment to "the general posts" and "the reserved posts", if any, advertised.” 35. In State of U.P. v. Dr. Dina Nath Shukla and another, (1997) 9 SCC 662 this question again arose before the Apex Court which held as follows:- “10. In a case where there are more than one post available in the same faculty in the cadre of Professor, Reader or Lecturer, as the case may be, necessarily and per force, the advertisement should also be made subject-wise applying Section 3(1) & (5) of the Act. In a case where there are more than one post available in the same faculty in the cadre of Professor, Reader or Lecturer, as the case may be, necessarily and per force, the advertisement should also be made subject-wise applying Section 3(1) & (5) of the Act. On selection, the candidates appointed should be fitted in that behalf as per the roster maintained by the University/educational institution. Thus, all eligible candidates, be they general or reserved, would get equal opportunity to apply for and seek selection and recruitment in accordance with law and the Rules. In adjudging the constitutionality of the scheme or the rule of reservation, what is required to be kept at the back of the mind is the equality and adequacy of representation as per the percentage prescribed by the rules/ administrative instructions. 13. Thus, it could be seen that if the subject-wise recruitment is adopted in each service or post in each cadre in each faculty, discipline, speciality or super-speciality, it would not only be clear to the candidates who seek recruitment but also there would not be an over-lapping in application of the rule of reservation to the service or posts as specified and made applicable by Section 3 of the Act. On the other hand, if the total posts are advertised without subject-wise specifications, in every faculty, discipline, speciality or super-speciality, it would be difficult for the candidates to know as to which of the posts be available either to the general or reserved candidates or whether or not they fulfil or qualify the requirements so as to apply for a particular post and seek selection.” 36. In State of U.P. and others v. M.C. Chattopadhyaya and others, (2004) 12 SCC 333 the Apex Court was dealing with the issue of reservation while making recruitment to the posts of Professors. It held as follows:- “6. While, therefore, we are of the considered opinion that there can be a reservation in respect of post of Professor and the provisions of the Reservation Act would apply, but the same cannot be applied taking all the Professors as a cadre and it has to be made subject-wise, as has been earlier construed and held by this Court.” 37. A learned Single Judge of this Court in Dr. Md. A learned Single Judge of this Court in Dr. Md. Mijan Hossain v. State of Tripura and others, (2015) 1 TLR 749 following the judgment in M.C. Chattopadhyaya’s case has also taken the view that the teaching posts of various discipline cannot be clubbed together for applying the reservation policy. He has held that the teaching posts of a particular discipline shall form one cadre for purpose of applying the reservation policy and any deviation therefrom shall invite contempt proceedings against the person and has held that reservation in teaching posts has to be made subject-wise and not by clubbing all the posts. He has, however, held that his direction would be applied to the future and the State has not challenged this judgment passed by a learned Single Judge of this Court. Even in this case, the stand of the State is that in future the State shall ensure that there is subject-wise reservation and all the teaching posts shall not be clubbed together for the purposes of reservation. In view of the clear enunciation of law by the Apex Court, we are not referring to the judgment of the Andhra Pradesh High Court in P.V.S.V. Prasada Rao and others v. Andhra University decided on 16.12.2005. 38. Section 4 of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act also clearly provides for reservation for SC and ST in services and posts under the State. Section 4 does not talk of cadre, it talks only of posts. It may be true that all the Assistant Professors constitute to one cadre but they do not occupy the same post. True it is that the general qualification may be the same but a Professor of English must have graduated with English as a subject or with Honours in English. He must have done his M.A., M.Phil etc. in English and should have qualified his NET, SLET in the concerned subject. If he is a postgraduate, obviously he has to be a postgraduate in English. Such a person cannot teach any subject other than English. He cannot be posted in any other department and, therefore, we are of the view that if reservation is not made subject-wise, it will lead to incongruous situations. If he is a postgraduate, obviously he has to be a postgraduate in English. Such a person cannot teach any subject other than English. He cannot be posted in any other department and, therefore, we are of the view that if reservation is not made subject-wise, it will lead to incongruous situations. Even in the State of Tripura, we find that certain departments are filled up by reserved category candidates and in certain departments there are hardly any candidates belong to the SC or ST. Even the stand of the State is that in science subjects it is very difficult to find ST candidates and most of the ST candidates are mainly teaching general subjects in the field of Arts and they are very few in the science subjects. 39. At this stage, we may also point out that except the petitioner in WP (C) No. 172 of 2015, none had approached this Court prior to the start of the selection procedure. All the candidates had appeared knowing fully well that in the advertisement there was no subject-wise reservation. Sri A.K. Bhowmik, learned Sr. Counsel, has urged that when the law has been laid down by the Apex Court, the State is bound to follow the law and there can be no question of acquiescence against the law. 40. Those people who have participated in the interview process and taken a chance of being selected cannot normally turn around and say that the selection is bad. However, as far as the petitioner in WP (C) No. 172 of 2015 is concerned, he approached this Court at the initial stage and he clearly laid challenge to the decision of the Government to reserve the posts across the cadre without specifying the subjects. His grievance also is that in the subject of Geography the number of SC and ST candidates is already more than 50%. What relief is to be granted shall be decided after answering all issues raised before us. Selection procedure: 41. There are mainly two challenges with regard to the selection procedure. The first challenge is that the Public Service Commission is making appointments to the post of Professors only on the basis of interview and is not following the UGC regulations. The second part of the challenge is that the process applied is not at all transparent, objective and credible. 42. The first challenge is that the Public Service Commission is making appointments to the post of Professors only on the basis of interview and is not following the UGC regulations. The second part of the challenge is that the process applied is not at all transparent, objective and credible. 42. The University Grants Commission (UGC) has issued detailed regulations on 18.9.2010 with regard to the selection procedures. These regulations were amended on 13.6.2013 and clause 6.0.1 and 6.0.2 as amended read as follows:- “6.0.1 ‘The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on weightages given to the performance of the candidate in different relevant dimensions and his/her performance on a scoring system proforma, based on the Academic Performance Indicators (API) as provided in this Regulations in Tables I to IX of Appendix III. Provided that API scores will be used for screening purpose only and will have no bearing on expert assessment of candidates in Direct Recruitment/CAS. Provided also that the API score claim of each of the sub-categories in the Category III (Research and Publications and Academic Contributions) will have the following cap to calculate the total API score claim for Direct Recruitment/CAS. Sub-Category Cap as % of API cumulative score in application III (A) : Research papers (Journals, etc) 30% III (B) Research publications (Books, etc) 25% III (C) Research Projects 20% III (D) Research Guidance 10% III (E) Training Courses and Conference/Seminar, etc 15% In order to make the system more credible, universities may assess the ability for teaching and/or research aptitude through a seminar or lecture in a class room situation or discussion on the capacity to use latest technology in teaching and research at the interview stage. These procedures can be followed for both direct recruitment and CAS promotions wherever selection committees are prescribed in these Regulations. 6.0.2 The Universities shall adopt these Regulations for selection committees and selection procedures through their respective statutory bodies incorporating the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS) at the institutional level for University Departments and their Constituent colleges/ affiliated colleges (Government/Government-aided/Autonomous/ Private Colleges) to be followed transparently in all the selection processes. An indicative PBAS template proforma for direct recruitment and for Career Advancement Schemes (CAS) based on API based PBAS is annexed in Appendix III. An indicative PBAS template proforma for direct recruitment and for Career Advancement Schemes (CAS) based on API based PBAS is annexed in Appendix III. The universities may adopt the template proforma or may devise their own self assessment cum performance appraisal forms for teachers. While adopting this, universities shall not change any of the categories or scores of the API given in Appendix-III. The universities can, if they wish so, increase the minimum required score or devise appropriate additional criteria for screening of candidates at any level of recruitment.” (Emphasis supplied) 43. The UGC is the apex governing body dealing with such matters. It comprises of experts and, therefore, the regulations issued by the UGC have to be followed. The UGC has also framed regulations to assess the academic performance of the persons seeking job in teaching faculties at various levels. This Academic Performance Indicator (API) scores are to be taken into consideration both at the time of recruitment, at the time of consideration under the Career Advancement Schemes (CAS) and promotions of universities/college teachers. The total API scores for promotion etc. are 125 and minimum scores have been provided for under different fields. 44. The contention of the petitioners is that the Public Service Commission has not taken into consideration the API scores and at the interview level marks have not been divided as per the regulations and grades have been awarded by the selection committees of the Public Service Commission which are not at all transparent. 45. The stand of the TPSC is that since the number of candidates applying against each post was not very high, it decided not to do any screening and, therefore, reliance is placed on the first proviso of clause 6.0.1 which provides that API scores will be used for screening purpose only and will have no bearing on expert assessment of candidates in Direct Recruitment/CAS. 46. Lengthy arguments were addressed before us with regard to the proper method of evaluation and what should be the upper limit of marks to be given for an oral interview. Large number of decisions were cited, but we are referring only to the more relevant citations. 47. 46. Lengthy arguments were addressed before us with regard to the proper method of evaluation and what should be the upper limit of marks to be given for an oral interview. Large number of decisions were cited, but we are referring only to the more relevant citations. 47. The Apex Court in Ajay Hasia and others v. Khalid Mujib Sehravardi and others, (1981) 1 SCC 722 also held that allocation of more than 15 percent of the total marks for oral interview was excessive though the selection process was not interfered with. In this case, the Apex Court held as follows:- “18. The contention of the petitioners under this ground of challenge was that viva voce examination does not afford a proper criterion for assessment of the suitability of the candidates for admission and it is a highly subjective and impressionistic test where the result is likely to be influenced by many uncertain and imponderable factors such as predelictions and prejudices of the interviewer, his attitudes and approaches, his pre-conceived notions and idiosyncrasies and it is also capable of abuse because it leaves scope for discrimination, manipulation and nepotism which can remain undetected under the cover of an interview and moreover it is not possible to assess the capacity and calibre of a candidate in the course of an interview lasting only for a few minutes and, therefore, selections made on the basis of oral interview must be regarded as arbitrary and hence violative of Article 14. Now this criticism cannot be said to be wholly unfounded and it reflects a point of view which has certainly some validity.” Thereafter, the Apex Court referred to the book on Public Administration in Theory and Practice by M.P. Sharma and Ol Glenn Stahl book on Public Personnel Administration and held that the oral interview method cannot be totally discarded. It, however, went on to hold as follows:- “The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification.” Dealing with the percentage of marks to be kept for the interview, the Apex Court went on to hold as follows:- “19. We may also caution the authorities that though, in the present case, for reasons which we have already given, we are not interfering with the selection for the academic year 1979-80, the selections made for the subsequent academic years would run the risk of invalidation if such a high percentage of marks is allocated for the oral interview. We are of the view that, under the existing circumstances, allocation of more than 15 per cent of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid.” Lastly, the Apex Court also held that it would be desirable to tape-record the interviews and held as follows:- “20. We think that it would also be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.” 48. In Lila Dhar v. State of Rajasthan and others, (1981) 4 SCC 159 : AIR 1981 SC 1777 the Apex Court was dealing with selection to the post of Munsifs. In this test 25% marks were allotted to viva voce under the rules and the Apex Court held that allotment of 25% marks for the interview test could not be said to be on the high side, especially when the Body conducting the interview comprised of a Judge of the High Court, the Chairman and member of the Public Service Commission and special invitee-experts. 49. 49. Thereafter, a Constitution Bench of the Apex Court in Ashok Kumar Yadav and others v. State of Haryana and others, (1985) 4 SCC 417 considered the law in this regard in detail. In that case, appointment was made to the Civil Service (Executive Branch) in the State of Haryana for Ex-service officers. They had to appear in examination for four compulsory subjects and one optional subject having an aggregate of 500 marks and the viva voce test carried 200 marks. Therefore, the percentage of marks for viva voce was 33.3%. In the case of non Ex-Servicemen officers the written test comprised of 700 marks and the viva voce was of 200 marks and, therefore, the percentage of marks allotted to viva voce was 22.2%. The issue raised before the Court was whether the marks allotted for interview or viva voce were excessive. Dealing with the pros and cons of written test and viva voce test, the Apex Court held as follows:- “24. It is now admitted on all hands that while a written examination assesses the candidate's knowledge and intellectual ability, a viva voce test seeks to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error, by a viva voce test, much depending on the constitution of the interview Board.” 50. Thereafter, reference was made to the book on “Public Personnel Administration” written by Glenn Stahl and a number of defects were pointed out in the viva voce test. The Apex Court went on to hold as follows:- “25. Thereafter, reference was made to the book on “Public Personnel Administration” written by Glenn Stahl and a number of defects were pointed out in the viva voce test. The Apex Court went on to hold as follows:- “25. Glenn Stahl has pointed out in his book on Public Personnel Administration that the viva voce test does suffer from certain disadvantages such as the difficulty of developing a valid and reliable oral test, the difficulty of securing a reviewable record of an oral test and public suspicion of the oral test as a channel for the exertion of political influence and, as pointed out by this Court in Ajay Hasia case, also of other corrupt, nepotistic or extraneous considerations, but despite these acknowledged disadvantages, the viva voce test has been used increasingly in the public personnel testing and has become an important instrument whenever tests of personnel attributes are considered essential. Glenn Stahl proceeds to add that "no satisfactory written tests have yet been devised for measuring such personnel characteristics as initiative, ingenuity and ability to elicit cooperation, many of which are of prime importance. When properly employed, the oral test today deserves a place in the battery used by the technical examiner." There can therefore be no doubt that the viva voce test performs a very useful function in assessing personnel characteristics and traits and in fact, tests the man himself and is therefore regarded as an important tool along with the written examination. Now if both written examination and viva voce test are accepted as essential features of proper selection in a given case, the question may arise as to the weight to be attached respectively to them. "In the case of admission to a college for instance", as observed by Chinnappa Reddy, J. in Lila Dhar case, "where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has perforce to be given to performance in the written examination" and the importance to be attached to the viva voce test in such a case would therefore necessarily be minimal. It was for this reason that in Ajay Hasia case this Court took the view that the allocation of as high a percentage of marks as 33.3% to the viva voce test was "beyond all reasonable proportion and rendered the selection of the candidates arbitrary." But, as pointed out by Chinnappa Reddy, J. "in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way subject to basic and essential academic and professional requirements being satisfied." There may also be services "to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise" and in case of such services where sound selection must combine academic ability with personality promise, some weight has to be given to the viva voce test. There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other factors. It is essentially a matter for determination by experts. The Court does not possess the necessary equipment and it would not be right for the Court to pronounce upon it, unless to use the words of Chinnappa Reddy, J. in Lila Dhar case "exaggerated weight has been given with proven or obvious oblique motives." 51. In the situation before it, the Apex Court held that allotment of 33.3% marks for interview in case of ex-servicemen officers and 22.2% in case of other candidates was excessive and the Apex Court preferred to follow the Union Public Service Commission in which marks for the viva voce test do not exceed 12.2%. At this stage, it would be important to remember that the Court clearly held that it is for the experts to decide what should be the percentage of marks allotted for an interview and what should be for the written test. As far as the present case is concerned, there is admittedly no written test. At this stage, it would be important to remember that the Court clearly held that it is for the experts to decide what should be the percentage of marks allotted for an interview and what should be for the written test. As far as the present case is concerned, there is admittedly no written test. The entire selection is based only on the basis of the marks obtained in the interview. 52. As pointed out above, the written test is a better test to evaluate the knowledge of a candidate. It is also a better test to judge his intellectual capability. However, a written test cannot evaluate a candidate’s initiative, alertness, resourcefulness etc. A viva voce test also suffers from major disadvantages as it is difficult to secure a reviewable record of an oral test and public suspicion of an oral test as a channel for exertion of political influence is not ill-founded. 53. In Mohinder Sain Garg v. State of Punjab and others, (1991) 1 SCC 662 , the Apex Court had clearly held that in a case of composite process of selection comprising written examination and interview of candidates fresh from schools/ colleges for public employment, allocation of more than 15 percent of the total marks for viva voce test would be unreasonable and excessive. 54. In Praveen Singh v. State of Punjab and others, AIR 2001 SC 152 the Apex Court was dealing with a case where posts of Block Development and Panchayat Officers were filled in. The Apex Court held that such appointment could not be made only on the basis of viva voce test because the job neither required mature personality nor the recruitment should be on the basis of interview only. The Apex Court held that the written examination which was held could not be termed to be a mere qualifying examination. It held that the written test could not be written off in the matter of selection and the marks obtained in the written test had to be taken into consideration and, therefore, the marks obtained out of 400 in the written test had to be added to the marks obtained in the interview and it set aside the method adopted by the Public Service Commission whereby it treated the 400 marks as only qualifying marks not to be taken into consideration of the final selection to be illegal. The Apex Court held as follows:- “13. Further, in the event, the interview was the sole criteria and the written test being treated as qualifying test, the Public Service Commission ought to have clearly stated that upon completion of the written elimination test, selection would be made on the basis of the viva voce test only as is available in the decision of Ashok v. State of Karnataka, 1992 (1) SCC 28 . Be it noted that there is always a room for suspicion for the common appointments if the oral interview is taken up as the only criteria. Of course, there are posts and posts, where interviews can be a safe method of appointment but to the post of a Block Development Officer or a Panchayat Officer wherein about 4500 people applied for 40 posts, interview cannot be said to be a satisfactory method of selection though however it may be a part thereof—In the factual score we have the advantage of having the Rules prescribing the mode and method of appointments and specific marks are earmarked for written examinations of various subjects together with totality of marks for viva voce test. As a matter of fact out of 450 marks only 50 marks have been allotted for interview by the Service Commission itself - why these 400 marks allotted for a written examination in four different subjects, if interview was to be the guiding factor; there has been however, no answer to the same excepting that the Court ought not to interfere in the matter of selection process in the absence of mala-fides true it is that in the event the selection is tainted with mala-fides, it would be a plain exercise of judicial power to set right the wrong—but is it also realistic to assume that when the Commission in clear and categorical language recorded that 450 marks would be the total marks for the examination and out of which only 50 marks are earmarked for viva voce test, the Commission desired that these 50 marks would be relevant and crucial and the other 400 marks would be rendered totally, superfluous and of no effect at all. The language used is rather plain and is not capable of the interpretation as is being presented before us during the course of hearing and has been held by the High Court. The language used is rather plain and is not capable of the interpretation as is being presented before us during the course of hearing and has been held by the High Court. Reliance on 50 marks only and thereby avoiding the other 400 marks cannot in our view having due regard to the language used, be said to be reasonable or devoid of any arbitrariness.” 55. In Satpal and others v. State of Haryana and others, 1995 Supp (1) SCC 206, the Apex Court held that allocation of 85% marks out of the total marks for interview would amount to arbitrariness when appointment was being made to the post of Patwari. 56. Though certain amendments were made to clauses 6.0 and 6.0.1 of the UGC regulations, these clauses even after amendment clearly provide that the selection procedure should incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the candidates. Further in order to make the system more credible, the university may assess the ability for teaching and/or research aptitude through a seminar or lecture in a classroom situation or discussion on the capacity to use latest technology in teaching and research at the interview stage. Clause 6.0.2 of the Principal Regulations as amended clearly provide that the university shall adopt regulations for selection committees and selection procedure through respective statutory bodies incorporating the Academic Performance Index at the institutional level. Therefore, even the selection committees are bound to take the Academic Performance Indicators into consideration. 57. Clause 6.0.2 of the Principal Regulations as amended clearly provide that the university shall adopt regulations for selection committees and selection procedure through respective statutory bodies incorporating the Academic Performance Index at the institutional level. Therefore, even the selection committees are bound to take the Academic Performance Indicators into consideration. 57. Appendix-III Table-II(c) lays down the regulations for minimum scores for APIs for direct recruitment of teachers in university departments/Colleges, Librarian/Physical Education cadres in Universities/Colleges and reads as follows:- Assistant Professor/ equivalent cadres (Stage 1) Associate Professor/ equivalent cadres (Stage 4) Professor/equivalent cadres (Stage 5) Minimum API Scores Minimum Qualification as stipulated in these regulations Consolidated API score requirement of 300 points from category III of APIs Consolidated API score requirement of 400 points from category III of APIs Selection Committee criteria / weightages (Total Weightages = 100) (a) Academic Record and Research Performance (50%) (b) Assessment of Domain Knowledge and Teaching Skills (30%) (c) Interview performance (20%) (a) Academic Background (20%) (b) Research performance based on API score and quality of publications (40%) (c) Assessment of Domain Knowledge and Teaching Skills (20%) (d) Interview performance (20%) (a) Academic Background (20%) (b) Research performance based on API score and quality of publications (40%) (c) Assessment of Domain Knowledge and Teaching Skills (20%) (d) Interview performance (20%) As per this criteria, at the level of Assistant Professor the selection committee has to give 50% weightage to academic record and research performance, 30% to domain knowledge and teaching skills and only 20% marks are to be given for interview. Therefore, the academic record and research performance based on the API scores will carry 50% weightage, the assessment of domain knowledge and teaching skills 30% weightage and interview performance 20%. These directions have not been amended even in the latest directions. Therefore, it is more than obvious that the methodology followed by the Public Service Commission was totally illegal. 58. As far as the present case is concerned, we find that the regulations of the UGC are very clear. The regulations clearly lay down that first the Academic Performance Indicators (API) of the candidates have to be calculated and these are to be used to screen the candidates to be called for the interview. Thereafter, interview is to be conducted and marks have to be allotted therein. The regulations clearly lay down that first the Academic Performance Indicators (API) of the candidates have to be calculated and these are to be used to screen the candidates to be called for the interview. Thereafter, interview is to be conducted and marks have to be allotted therein. The submission made on behalf of the Public Service Commission is that since the first proviso to clause 6.0.1 provides that the API score is not to be taken into consideration by the expert body and since no screening test was conducted, the API scores are meaningless. The second submission is that the Public Service Commission has while conducting the interview strictly followed the regulations laid down by the UGC. According to Sri P. Dutta, learned counsel for the Public Service Commission the minutes of the Public Service Commission of 16.9.2015 in this regard clearly show that the Public Service Commission has not only taken into consideration the API scores but has also assessed the domain knowledge and teaching skills of a candidate through seminar or lectures in a classroom situation by using latest technology. It is submitted that the selection has been in an absolutely fair manner and should not be interfered with. On behalf of the TPSC as well as the selected candidates who have intervened in the matter, it is submitted that the petitioners having taken part in the selection process cannot now challenge the same. 59. We shall deal with the second part of the argument first. There can be no manner of doubt that persons who willingly take part in a selection process and are unsuccessful in the same cannot be permitted to impugn the process of interview. In this regard, reference may be made to Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 (Supp) SCC 285 and Madan Lal and others v. State of J & K and others, (1995) 3 SCC 486 . Therefore, other than the candidate petitioner in WP (C) No. 172 of 2015 who approached this Court before the process of interview started, the others would not be entitled to challenge the selection on the ground that excessive marks have been allocated to the interview process. Therefore, other than the candidate petitioner in WP (C) No. 172 of 2015 who approached this Court before the process of interview started, the others would not be entitled to challenge the selection on the ground that excessive marks have been allocated to the interview process. However, these candidates, in our view, are entitled to challenge the selection on the ground that the selection has been unfair and is violation of the regulations framed by the UGC in terms of section 60 of the University Grants Commission Act. The UGC is an expert body entitled to frame regulations and there can be no dispute that the UGC has been conferred the power to lay down these regulations. 60. In this behalf, we may make reference to the judgment of the Apex Court in University Grants Commission & another v. Neha Anil Bobde (Gadekar), 2013 AIR SCW 5586, wherein the Apex Court held as follows:- “23. UGC, in exercise of its powers conferred under clauses (e) and (g) of Section 26(1) of the UGC Act, issued the UGC (Minimum Qualification of Teachers and other Academic Staff in Universities and Colleges and other measures for Maintenance of Standards of Higher Education) Regulations, 2010. Clause 3.3.1 of the Regulation specifically states the NET shall remain the minimum eligibility condition for recruitment and for appointment of Assistant Professors in the Universities/Colleges/Institutions. Clause 4.4.1 stipulates that before fulfilling the other prescribed qualifications, the candidates must have cleared the National Eligibility Test conducted by the UGC. Therefore, the power of the UGC to prescribe, as it thinks fit, the qualifying criteria for maintenance of standards of teaching, examination etc. cannot be disputed.” 61. The regulations referred by us hereinabove have been framed pursuant to the said powers and it is not disputed by any of the parties that these regulations are beyond the jurisdiction of the UGC. The only submission on behalf of the Public Service Commission is that since the UGC in clause 6.0.1 has stated that API scores are to be used for screening purpose only and since no screening was carried out, there was no need to take the API scores into consideration. 62. We are dealing with appointment of Assistant Professors who are going to teach students in various subjects in colleges in the State of Tripura. The first and foremost object is to select the most meritorious candidates. 62. We are dealing with appointment of Assistant Professors who are going to teach students in various subjects in colleges in the State of Tripura. The first and foremost object is to select the most meritorious candidates. API scores very objectively assess the merit of these candidates because the API scores are based on the marks obtained by the candidates at various levels of examinations and also on the basis of research papers, if any, of the candidates published and the experience that the candidates have in teaching. The scores are assessed on a scientific basis and there is no element of subjectivity in assessing the scores. When teachers have to be appointed, we are of the firm view that academic performance of the candidates is more important than their alertness or personality. Therefore, weightage has to be given to the academic performance of such candidates. Table-II(c) of Appendix-III leaves no manner of doubt that 50% marks have to be awarded on the basis of API scores. What the note to regulation 6.0.1 means is that API scores are not to be taken into consideration while awarding marks for seminar/ classroom situation/interview. 63. We are sorry to point out that the Public Service Commission has taken a stand before us which is patently false even as per its own records. The stand of the Public Service Commission in all its affidavits filed before us was that the Public Service Commission took a conscious decision to invite all candidates for interview and, therefore, the API scores were not to be taken into consideration. We may make reference to Note No.14 dated 16.01.2015 in File No.F.11(36-29)-Rectt./TPSC/2014 which reads as follows:- “Note No.14 As instructed by the authority the candidates applied and declared eligible are to be examined thoroughly for preparation of API. One format for such API is placed for kind approval of the authority, if so approves. Sd/- (Illegible) SECTION OFFICER.” We find that on 16.01.2015 a note was put up by the Section Officer that as instructed by the authority the candidates who had applied and were declared eligible are to be examined thoroughly for preparation of API and one format for API was placed for approval. Sd/- (Illegible) SECTION OFFICER.” We find that on 16.01.2015 a note was put up by the Section Officer that as instructed by the authority the candidates who had applied and were declared eligible are to be examined thoroughly for preparation of API and one format for API was placed for approval. The format is as follows:- Post: Assistant Professor, Political Science S. No. : Name : Item No. Item % of marks secured/ other information 1 Madhyamik (% of marks) 2 H.S. (% of marks) 3 UG (% of marks) 4 Hons. (y/n) 5 PG (% of marks) 6 M. Phil (2 yrs)(y/n) 7 (i) Ph.D. Completed (y/n) (ii) Ph.D. Submitted (y/n) 8 NET/SLET/SET (y/n) 9 Post-Doctoral Fellowship (y/n) 64. We are also sorry to observe that these notings of the Public Service Commission were purposely withheld from this Court and never brought to our notice either by any official of the Public Service Commission or by the learned counsel appearing for the Public Service Commission. It is only after we had summoned the record in Court and were going through the noting file that we found this noting on the file and then when we questioned Sri P. Dutta, learned counsel for the TPSC and Sri Debangshu Bandopadhyay, Assistant Secretary of the TPSC who was appearing in person about this decision, we were informed that this decision had been taken but had been later overruled orally. 65. This format was approved by all the members of the Public Service Commission on 17.01.2015. Therefore, it is obvious that the Public Service Commission had taken a conscious decision that the API scores of the candidates would be calculated as per the said format. When we specifically asked Sri P. Dutta, learned counsel for the TPSC, to point out any material to show that this decision of the Public Service Commission to prepare the API scores had been reversed or rescinded on account of the proviso to clause 6.0.1., he could not point out anything in writing but submitted that the Public Service Commission had taken this decision orally. 66. We are constrained to observe that such a submission is highly misplaced. Authorities like the Public Service Commission do not work orally. There was a conscious decision of the Public Service Commission to draw up the APIs and this decision was never withdrawn or rescinded. 67. 66. We are constrained to observe that such a submission is highly misplaced. Authorities like the Public Service Commission do not work orally. There was a conscious decision of the Public Service Commission to draw up the APIs and this decision was never withdrawn or rescinded. 67. Even more shocking is the fact that for the last six months the Public Service Commission has been contesting these petitions only on the ground that API scores are not to be taken into consideration since there was no screening but no decision in writing in this regard has been pointed out to us. The Public Service Commission is guilty of withholding material facts from this Court and is guilty of trying to mislead this Court. We normally would avoid using any harsh language against another constitutional body but we must remember that the Apex Court dealing with the duties of the Public Service Commission in Ashok Kumar’s case (supra) held as follows:- “30. Before we part with this judgment we would like to point out that the Public Service Commission occupies a pivotal place of importance in the State and the integrity and efficiency of its administrative apparatus depends considerably on the quality of the selections made by the Public Service Commission. It is absolutely essential that the best and finest talent should be drawn in the administration and administrative services must be composed of men who are honest, upright and independent and who are not swayed by the political winds blowing in the country. The selection of candidates for the administrative services must therefore be made strictly on merits, keeping in view various factors which go to make up a strong, efficient and people oriented administrator. This can be achieved only if the Chairman and members of the Public Service Commission are eminent men possessing a high degree of calibre, competence and integrity, who would inspire confidence in the public mind about the objectivity and impartiality of the selections to be made by them. We would therefore like to strongly impress upon every State Government to take care to see that its Public Service Commission is manned by competent, honest and independent persons of outstanding ability and high reputation who command the confidence of the people and who would not allow themselves to be deflected by any extraneous considerations from discharging their duty of making selections strictly on merits. Whilst making these observations we would like to make it clear that we do not for a moment wish to suggest that the Chairman and members of the Haryana Public Service Commission in the present case were lacking in calibre, competence or integrity.” 68. The role of the Public Service Commission is very important. The primary duty of the Public Service Commission is to ensure that the most meritorious candidates are selected. 69. We are also pained to observe that the Public Service Commission did not bring to our notice the complete memorandum issued by the Public Service Commission, relevant portion of which reads as follows:- “MEMO The following decisions have been taken by the Commission which will take immediate effect until further order. (i) Henceforth, for recruitment by direct selection method, other than through Combined Competitive Examination or Scheduled Examination, wherever the number of candidates is large compared to the number of posts and this exceeds 100 (One hundred), a Screening Test/Examination will be held for short listing the candidates for interview except otherwise decided/instructed by the Commission. (ii) After the Written Examination in the form of Combined Competitive Examination or other Scheduled Examination or Screening Test the number of candidates to be called for Personality Test/Interview will be in the following ratio, unless otherwise decided by the Commission:- Number of Vacancies Number of Candidates to be called for Personality Test/Interview (Category wise) 1 5 Candidates 2 8 Candidates 3 and above 3 times the number of vacancies. 70. This memo was issued on 18.01.2005. The Public Service Commission only referred to the clause (i) of the memo in its pleadings. It is guilty of not bringing clause (ii) to our notice. When we read the memo together, it is clear that in tests other than combined competitive examination or scheduled examination when the number of candidates was large compared to the number of posts and exceeded 100, a screening test/examination would be held for shortlisting the candidates for interview and after the written test or combined competitive examination or screening test the number of candidates to be called for personality test/interview would be in the prescribed ratio. 71. In the present case, 150 posts in various categories were advertised. 71. In the present case, 150 posts in various categories were advertised. While making its submissions on the issue of subject-wise reservation, the stand of the Public Service Commission was that all the subjects constitute one cadre and, therefore, all the posts were clubbed together for the purpose of reservation. However, when confronted with this issue of not holding a screening test, the very same Public Service Commission now urges that it considered the number of candidates appearing subject-wise to decide whether screening test to be conducted or not. Even then we found that in the subject of Bengali more than 180 candidates had applied and no satisfactory answer could be given to us that why in the subject of Bengali at least no screening test was conducted. 72. On careful analysis of the regulations of the UGC read in conjunction with the memo and noting of the TPSC, there can be no manner of doubt that the system followed by the Public Service Commission is wholly illegal. The UGC regulations mandate that the overall selection process shall incorporate transparent, objective and credible methodology and to analyze the merit and credential of applicants based on weightages given to the performance of the candidates in different relevant dimensions on the basis of his performance on a scoring system based on the academic performance indeed. It is true that the regulation lays down that API scores will be used only for screening purposes and will not have any bearing on expert assessment of candidates but this does not mean that the API scores can be thrown to the winds and can be totally ignored. This only means that API scores will not be taken into consideration while assessing the merit of the candidate in the interview or in the seminar or in the classroom situation. 73. The Public Service Commission had itself taken a decision that the API scores of all the candidates be prepared. The memo dated 18.01.2005 issued by the Commission clearly indicates that the Public Service Commission had decided that after written examination or screening test in case of one vacancy 5 candidates would be called, in case of two vacancies 8 candidates would be called and where there are 3 and above vacancies, then 3 times the number of vacancies. The memo dated 18.01.2005 issued by the Commission clearly indicates that the Public Service Commission had decided that after written examination or screening test in case of one vacancy 5 candidates would be called, in case of two vacancies 8 candidates would be called and where there are 3 and above vacancies, then 3 times the number of vacancies. Therefore, after evaluating the API scores of all the candidates in those subjects where there was only one vacancy, the TPSC was obliged to call for interview only those 5 candidates who had scored the highest marks in the API scores. If there were two posts or vacancies, then the Public Service Commission could call 8 candidates having the highest scores and in case of more than 3 vacancies, the Public Service Commission could call three times the number of vacancies. Therefore, even in the subject of Bengali where there were 10 vacancies, the maximum number of candidates who could have been called for interview was only 30. The API scores by themselves are a screening test and were to be used for screening purpose only. There is no question of doing away with these API scores. In the case of selection of teaching staff, the API scores replace the written test and thereafter the number of candidates to be called for interview will be as per the memo of Public Service Commission and the candidates have to be called strictly in accordance with the API scores obtained by them. Therefore, the candidates who are at the bottom of the list as far as API scores are concerned should not even have been called for interview. Though API scores have not been prepared, prima facie it appears to us that some of the selected candidates were not even eligible to be called for interview on the basis of API scores. Evaluation in Interview:- 74. Another glaring error in the selection process is that the marks in the interview process have not been assessed under different criteria. In fact, the members of the selection committees have only granted grades which have been converted. Initially at the time of arguments, it was urged that each member of the interview board was given a separate mark sheet and each member had evaluated the marks separately. In fact, the members of the selection committees have only granted grades which have been converted. Initially at the time of arguments, it was urged that each member of the interview board was given a separate mark sheet and each member had evaluated the marks separately. When we examined the statements of the interview committee in this regard, we found that every candidate had been given the same grading by all the members of the interview board. Therefore, if candidate at S. No. 1 in the subject of Geography on 11.5.2015 was granted B2 grade by one member of the interview board, all the others had also given him the same grade and candidate No.2 who had been granted B2- was granted the same grading by all members of the interview board. Therefore, the marking by every member of the interview board was exactly the same. When we raised the question as to how all the candidates could be marked identically by all the members of the interview board, we were informed that, in fact, after the candidate was interviewed all the members of the interview board discussed the suitability of the candidate and, therefore, on a basis of consensus grades were awarded. We would have appreciated if this had been stated at the outset but in the beginning we were given an impression that each member of the interview board was separately grading the candidates. 75. The system followed by the Public Service Commission is not at all an objective system. One total grade has been given by all the interviewers and we cannot fathom or understand why a candidate has been graded at a particular level and not at another level. The method is not transparent, objective or credible. It does not even disclose on what basis the marks have been allotted. True it is that in the final minutes, the members of the Public Service Commission after the interviews were held had stated that they had conducted the overall selection by taking into consideration the teaching and research aptitude through seminar or lecture like situation but no material has been placed before us in this regard. Even assuming that marks could be allotted in interviews under various heads, the selection committee was bound to assess the ability for teaching and research aptitude and grant marks under different heads. Method of Grading: 76. Even assuming that marks could be allotted in interviews under various heads, the selection committee was bound to assess the ability for teaching and research aptitude and grant marks under different heads. Method of Grading: 76. We may deal with another aspect of the matter. The Public Service Commission, to say the least, follows a very opaque and non-transparent system of marking. At first grading is given and then those grades are converted to marks. Initially we were told that the grading is as follows:- GRADINGS A3 90-100 A2 80-89 A1 70-79 B3 60-69 B2 50-59 B1 40-49 C3 30-39 C2 20-29 C1 10-19 D 01-09 This would mean that a candidate could be graded in 10 (ten) categories ranging from Category D at the bottom, C1 to C3, B1 to B3 and A1 to A3. We may also point out that the Public Service Commission has fixed a benchmark that an unreserved category candidate must obtain B2 or above, i.e. more than 50 marks for being selected and a reserved category candidate must obtain B1 and above, i.e. 40 marks or above to be selected but when we went through the marks, we found that these grades have been further divided and sub-divided and now the grades are as follows:- Conversion of marks from Grading, followed by the Commission, for in case of recruitment to the post of Assistant Professor, Government (General) Degree Colleges in Tripura, Group-A, Gazetted under Education (Higher) Department, Government of Tripura, 2014-2015. This is revealed from the proceedings and tabulation sheets (Format II and III) made for the recruitment to the post of Assistant Professor, Government (General) Degree Colleges in Tripura, Group-A, Gazetted. This is revealed from the proceedings and tabulation sheets (Format II and III) made for the recruitment to the post of Assistant Professor, Government (General) Degree Colleges in Tripura, Group-A, Gazetted. Grade Marks Range Sub Grade Corresponding Marks A3 90-99 A3++ 99 A3+ 98 A3 95 A3- 92 A3-- 90 A2 80-89 A2++ 89 A2+ 88 A2 85 A2- 82 A2-- 80 A1 70-79 A1++ 79 A1+ 78 A1 75 A1- 72 A1-- 70 B3 60-69 B3++ 69 B3+ 68 B3 65 B3- 62 B3-- 60 B2 50-59 B2++ 59 B2+ 58 B2 55 B2- 52 B2-- 50 B1 40-49 B1++ 49 B1+ 48 B1 45 B1- 42 B1-- 40 C3 30-39 C3++ 39 C3+ 38 C3 35 C3- 32 C3-- 30 C2 20-29 C2++ 29 C2+ 28 C2 25 C2- 22 C2-- 20 C1 10-19 C1++ 19 C1+ 18 C1 15 C1- 12 C1-- 10 D 01-09 D1++ 09 D1+ 08 D1 05 D1- 02 D1-- 01 77. Thus, now there are 50 grades and virtually for every 2 marks there is a grade. We do not understand what is the rationale of having 50 grades and why marking cannot be done on the basis of marks. It has been urged on behalf of the petitioners that these various 50 grades have been introduced to leave scope for interpolation and changing the grades at a later stage. Supposing a candidate is granted A3 grade which means 95 marks. This can be changed at any stage to A3++ which would be 99 marks or A3-- which would be 90 marks. Therefore, just by adding a ‘+’ or a ‘-’ sign, the entire scenario can be changed. We are not saying that any illegality has taken place but there is great scope for interpolation and this will give rise to a reasonable suspicion in the mind of the candidates that the selection is not proper. The main defects pointed out in an oral test are that it is difficult to secure a reviewable record of an oral test and public suspicion of an oral test as a channel for the exertion of political influence cannot be ignored. The Apex Court in Ajay Hasia’s case which was decided on 13.11.1980 had held so. Much water has flown down the Ganges since then. The Apex Court in Ajay Hasia’s case which was decided on 13.11.1980 had held so. Much water has flown down the Ganges since then. Unfortunately though more than three decades have passed, the waters are not cleaner—they are, in fact, dirtier and murkier and this Court cannot shut its eyes to the fact that in many oral interviews influences of various types are exerted. We, therefore, feel that there should be a transparent system of marking. 78. We have carefully gone through the selection records of two subjects namely Geography and Philosophy. We are purposely not giving detailed facts but we find that candidates with much higher marks have been graded much lower whereas candidates with much lower qualifying marks have been graded higher. For instance, in the subject of Geography, we find that one of the candidates who has been selected is not a Ph.D. though he is pursuing his Ph.D. and one of the candidates belonging to the ST who has not been selected has much higher marks at the graduation level, at the post graduation level and is also a Ph.D. 79. In the subject of Philosophy, we find that the petitioner in WP (C) No. 424 of 2015 Jekap Halam has 40.37% marks in Madhyamik, 49% marks in Higher Secondary, 74% marks in B.A. from Madras University, 70.37% marks in M.A. (Philosophy). He has also cleared the NET (Philosophy) from the UGC in the year 2011 and is M.Phil in the year 2012. He has been graded as C3 whereas on the same date another candidate interviewed immediately after him having 45.05% marks in Madhyamik, 47.04% marks in Higher Secondary, 57.33% marks in B.A., 58.25% marks in M.A. (Philosophy) but who has done B.Ed and M.Ed has been graded as B3+. It is not for us to sit in judgment over the Public Service Commission but we must be able to understand on what basis the marks are given. Another ST candidate Jaharlal Debbarma had 48% marks in Madhyamik, 61.60% marks in Higher Secondary, 45% marks in Graduation, 72.75% marks in MA (Philosophy) and 69.40% marks in M.Phil. That candidate has also been graded C3 which means that both the petitioner and Jaharlal Debbarma were found unfit to be appointed. We must remember that in the Department of Philosophy, all the posts were initially meant for SC and ST candidates. That candidate has also been graded C3 which means that both the petitioner and Jaharlal Debbarma were found unfit to be appointed. We must remember that in the Department of Philosophy, all the posts were initially meant for SC and ST candidates. We cannot understand how these two Scheduled Tribe candidates could be said to be ineligible. 80. If the screening had been done using the API scores, they would have probably ranked amongst the highest in the API scores and the selected candidates may not even have been called for the interview. According to TPSC, in the subject of Philosophy it could not find requisite number of candidates from amongst the SC and ST and, therefore, some unreserved category candidates have also been appointed. Now, let us take the marks of the unreserved category candidate. One of the candidates having Roll No.PHIL-12 has been graded as A1+ which is a very high grading and his marks are as follows:- Madhyamik 48.55% Higher Secondary 56.10% B.A. (Hons.) 63.83% M.A. (Philo) 61.37% CCTE 70% We are not going into the detailed marks of every candidate but we find that candidates with very high marks have been granted lower grades and candidates with much lower marks have been granted higher grades. If the UGC regulations had been followed in letter and spirit, this could not have happened. Seminar & Classroom situation: 81. Before parting with this subject, we must also point out that when only SC and ST candidates have to be considered, the Public Service Commission cannot just hold them to be ineligible for appointment by granting C3 grade. 50% of the marks had to be awarded on the basis of the API score, 30% on the basis of a classroom session or seminar and 20% on the basis of the interview. What has happened is that 100% marks are based on the interview. No doubt, in the minutes it is stated that the interview board while making the selections has followed the UGC regulations but when we particularly asked Sri P. Dutta where the classroom atmosphere was created and where was the seminar conducted, he stated that this was created by the interview board during the interview proceedings. 82. During the course of arguments, we had asked Sri P. Dutta, learned counsel for the Public Service Commission, how the inter se merit of the reserved category candidates was drawn up. 82. During the course of arguments, we had asked Sri P. Dutta, learned counsel for the Public Service Commission, how the inter se merit of the reserved category candidates was drawn up. He informed us that the inter se merit of all the ST or SC candidates is drawn up on the basis of the marks obtained in the interview and thereafter, as per the seniority they are adjusted in each subject. This is totally illegal. Apples cannot be equated with oranges. A candidate who has been interviewed in the subject of Mathematics cannot be compared with a candidate who has appeared in the subject of Bengali. There can be no comparison of the two marks. The interview boards are different, the experts are different and the marking may be different. This also leads to another anomaly. In case, though ST candidates who have got higher marks are available in the subjects of Geography, Philosophy, Computer Science etc. they will be given appointment but those few ST candidates who are successful in the subjects of Bengali, Physics and other science subjects may not find a place in the reserved categories as per their merit which has been illegally drawn up by combining all the subjects. This also is against the avowed stand of the State that it has very few ST teachers in science subjects. Therefore, the effort should be to apply the reservation subject-wise to ensure that in all the subjects the reserved categories are adequately represented. 83. There can be no classroom situation without having students. The idea of the UGC regulations is that the candidates should be asked to teach some students in a classroom like situation to judge their teaching abilities. The UGC regulations also lay down that the research aptitude can be judged on the basis of a seminar. The seminar will have to be of all the candidates together and not separately by the Public Service Commission. In the present case, we have no hesitation in holding that no proper seminar or classroom like situation was created and, therefore, the awarding of grades is not based on the criteria laid down by the UGC and as such, the entire selection process is illegal and liable to be set aside. Giving effect to reservation policy: 84. We have found another error in the procedure followed by the Public Service Commission. Giving effect to reservation policy: 84. We have found another error in the procedure followed by the Public Service Commission. The UGC in its regulations has clearly laid down that an effort shall be made to ensure that there is strict implementation of the relevant policy of reservation and in this behalf we may refer to clause 6.0.4 which reads as follows:- “6.0.4. In all the Selection Committees of direct recruitment of teachers and other academic staff in universities and colleges provided herein, an academician representing Scheduled Caste/Scheduled Tribe/OBC/Minority/Women/Differently-abled categories, if any of candidates representing these categories is the applicant and if any of the members of the selection committee do not belong to that category, shall be nominated by the Vice Chancellor or Acting Vice Chancellor of the University, and in case of a college Vice Chancellor or Acting Vice Chancellor of the University to which the college is affiliated to. The academician, so nominated for this purpose, shall be one level above the cadre level of the applicant, and such nominee shall ensure that the norms of the Central Government or concerned State Government, in relation to the categories mentioned above, are strictly followed during the selection process.” The UGC has also issued other guidelines for strict implementation of reservation policy of the Government in Universities and to ensure that at the time of selection the interest of the reserved categories is not adversely affected. Regulation 8 reads as follows:- “8. Procedure to be followed in matters of reservation for teaching as well as non-teaching staff:- (a) Without prejudice to any procedure prescribed under various Instructions from the Central Government from time to time, the following guidelines are to be followed: (i) SC/ST candidates should be interviewed separately; (ii) One member of the interview Committee shall belong to the SC/ST category; (iii) All the SC/ST candidates selected according to their position in the combined general merit list shall not be counted for covering the prescribed percentage of reservation.” These guidelines are required to be followed in all cases and it is for the TPSC to ensure that at least one member of the interview board/committee belongs to the SC/ST category, as the case may be. Unfortunately, we have observed that highly qualified ST candidates have not even been given 40% marks in the interview. Unfortunately, we have observed that highly qualified ST candidates have not even been given 40% marks in the interview. When ST candidates are being interviewed for posts reserved for them, it would be appropriate to have a ST member in the Board. If there is no expert belonging to the ST category, then the Director of the Department for Welfare of Scheduled Tribes will be made member of the interview board. What should be the reliefs: 85. On behalf of the candidates who were selected and who have intervened in the matter, some of whom were also heard by us in person, it was urged that since they have been selected and there is no fault on their behalf, the selection should not be set aside. In this behalf, reference has been made to various judgments including the judgment of the Apex Court in H.C. Puttaswamy and others v. The Hon’ble Chief Justice of Karnataka High Court, Bangalore and others, AIR 1991 SC 295 . In all the cases cited before us, the persons whose selections had been held to be invalid had been in service for many long years and, therefore, relief was not granted against them. As far as the present cases are concerned, on 23.9.2015 we had passed a stay order restraining the State from making any appointments. Therefore, none of the selected persons has been appointed or has served and, therefore, we proceed to decide the petitions on merits. 86. We may not have been inclined to direct the State to reserve the posts subject-wise except in the subject of Geography if we had otherwise upheld the selections. However, since we are of the considered view that the selections are illegal and we are also giving time to the State to decide whether de-reservation should be made again and if so, in what manner, we are clearly of the view that the law laid down by the Supreme Court must be followed and in case, the State decides to de-reserve any post, then the de-reservation and reservation should clearly be made subject-wise. While making such reservation/de-reservation, the State shall take into consideration the number of reserved category candidates in a particular subject and if the reserved categories are sufficiently represented, then there can be no reservation in that subject. Reliefs: 87. While making such reservation/de-reservation, the State shall take into consideration the number of reserved category candidates in a particular subject and if the reserved categories are sufficiently represented, then there can be no reservation in that subject. Reliefs: 87. We, therefore, allow the writ petitions, set aside the selection of the candidates who have been selected and direct the respondents to abide by the following directions:- (i) No fresh applications will be invited and only the candidates who have already applied shall only be considered for appointment to the post of Assistant Professor; (ii) Council of Ministers may, if it so desires, reconsider its earlier resolution dated 11.02.2014 which is embodied in the notification dated 18.02.2014. It is for the Council of Ministers to decide whether it wants to de-reserve the posts or to follow a system of keeping the posts reserved but if requisite number of candidates from the SC/ST categories are not available, then some posts would be treated to be de-reserved; (iii) That, in case the State decides to de-reserve or decides that in the event of suitable candidates not being available, a particular number of posts will be deemed to be de-reserved, the de-reserved posts shall clearly be indicated subject-wise; (iv) That, while de-reserving the posts subject-wise, the State shall take into consideration what is the representation of the reserved categories in the teaching faculty in that particular subject and an effort shall be made to reserve posts in those subjects where there are lesser numbers of ST and SC candidates; (v) In those departments where the ST and SC candidates are already over represented, i.e. they are holding more than their quota of 31% and 17%, posts cannot be reserved for ST and SC candidates; (vi) The Public Service Commission shall, in the mean time, prepare the API scores of the candidates in accordance with the guidelines laid down by the UGC; (vii) After preparing the API scores, the Public Service Commission shall call only the topmost 5 candidates for interview where there is only one vacant post, 8 most meritorious candidates as per API scores if there are two vacancies and three times the number of vacancies in all other cases. The candidates shall be called strictly as per the merit in the API scores; (viii) The TPSC will ensure that in case the posts are meant for ST and SC candidates only the candidates belong to the SC and ST shall be interviewed first. Even in cases where the number of SC and ST candidates are less than the number of posts, first only the SC and ST candidates shall be interviewed and it will be ensured that one of the members of the interview board is a member of the SC or ST, as the case may be; (ix) Only if requisite number of SC and ST candidates are not available, then the general category candidates shall be called for interview; (x) However, in case the State Government decides to de-reserve some posts, then those posts shall be treated to be de-reserved and all eligible candidates shall be called for interview strictly in order of merit. There can be no preference or priority to SC or ST candidates in de-reserved posts; (xi) Thereafter, the Public Service Commission may, if it so desires, create either a classroom with students and may also hold a seminar with all the candidates so that the domain knowledge and teaching skills can be evaluated. The marks to be allotted for this shall be 30 out of 100 as per Table-II(c) of Appendix-III of UGC regulations and we further direct that the proceedings of such seminar/classroom situation must be video-graphed; (xii) The TPSC may then conduct an interview for 20 marks as per Table-II(c) of Appendix-III of UGC regulations in which all the members of the interview board shall separately award marks and not grades. Though the discussion may take place between the members of the interview board, each member of the interview board will grant individual marks which will be handed over in a sealed cover to the Secretary of the Public Service Commission. At the end of the day, the Secretary of the Public Service Commission shall upload these marks awarded individually by the members of the interview board on to a computer. At the end of the day, the Secretary of the Public Service Commission shall upload these marks awarded individually by the members of the interview board on to a computer. However, the marks shall not be made public and after all the candidates have been interviewed, then the marks so awarded by the members of the interview board shall be divided by the number of members of the interview board to obtain an average and 20 marks alone shall be allotted for interview; (xiii) We are not directing videography of the interview but we feel that the Public Service Commission would be well advised to videograph the interview also keeping in view the law laid down more than three decades back in Ajay Hasia’s case; (xiv) We further direct that the entire exercise be completed within 3(three) months from today. 88. The writ petitions are disposed of in the aforesaid terms. 89. A copy of this judgment shall be sent to the Chairman of the Public Service Commission for information and the Chairman is directed to ensure that in future no misleading affidavits are filed in Courts, otherwise this Court may be compelled to take much more serious action. 90. A copy of this judgment be also sent to the Chief Secretary to the State of Tripura for taking appropriate action.