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Gauhati High Court · body

2017 DIGILAW 1380 (GAU)

Manalisha Choudhury v. State of Assam

2017-10-27

A.K.GOSWAMI

body2017
JUDGMENT & ORDER : Heard Mr. M. Choudhury, learned senior counsel for the petitioner. Also heard Mr. C. Bhattacharyya, learned State counsel, appearing for the respondent Nos.1 & 2, Mr. C. Barua, learned standing counsel, APSC, appearing for the respondent Nos.3, 4 & 5 and Mr. P.K. Roy Choudhury, learned counsel, appearing for the respondent No.6. None has entered appearance for the respondent No.7, despite service of notice. 2. The respondent No.6 had filed an application for vacation, alteration and/or modification of the interim order dated 02.06.2017, which was registered as I.A. (C) No.2292/2017. The learned counsel appearing for the parties submit that instead of taking up of the application for vacation of the interim order, the writ petition can itself be taken up for disposal. Accordingly, as agreed to by the learned counsel appearing for the parties, the writ petition is taken up for disposal. 3. It is submitted by Mr. P.K. Roy Choudhury, learned counsel appearing for the respondent No.6 that the application filed for vacating the interim order may be treated as the stand of the respondent No.6 to which Mr. M. Choudhury submits that the objection filed to the said application may also be taken into consideration. 4. The case of the writ petitioner is that she was appointed as Senior Scientific Assistant in the Forensic Science Laboratory, Assam by an order dated 19.03.1996 issued by the Inspector General of Police (Administration), Assam, on the basis of a selection process conducted by the Assam Public Service Commission (for short, “APSC”). She was promoted to the post of Junior Scientific Officer by an order dated 12.04.2006 issued by the Secretary to the Government of Assam, Home (A) Department. Subsequently, she was promoted to the post of Scientific Officer by an order dated 20.06.2013. While serving as such, the petitioner responded to an advertisement being advertisement No.1/2017 dated 16.01.2017, which was published by the APSC in the 17th January, 2017 publication of the Assam Tribune, whereby applications were invited for the post of Deputy Director (Biology Division) in the Regional Forensic Science Laboratory, Assam, Jorhat under the Home & Political Department. The respondent No.6 had also submitted her application. A Notification dated 28.04.2017 was issued by the APSC indicating that the respondent No.6 as well as 30(thirty) other candidates did not submit any certificate with regard to research experience of 5(five) years along with their applications. The respondent No.6 had also submitted her application. A Notification dated 28.04.2017 was issued by the APSC indicating that the respondent No.6 as well as 30(thirty) other candidates did not submit any certificate with regard to research experience of 5(five) years along with their applications. The candidates were called for viva voce interview on 11.05.2017 and the respondent No.6 was also called for the said interview. The petitioner appeared in the interview on 11.05.2017, whereas the respondent No.6 appeared for the said interview on 15.05.2017. The interviews were held on 11.05.2017, 12.05.2017, 15.05.2017, 16.05.2017 and 17.05.2017. The interview was conducted by 2(two) Members from the Commission and 1(one) Expert Member. 5. It is pleaded in the writ petition that questions asked to the petitioner were not related to the field of forensic science. No emphasis was given to the petitioner’s certificates and her experience of more than 21 years. The process of interview was conducted as if it was for selection of an academic post, which was not the case. Above all, the respondent No.7, who was called as an Expert, did not have the credentials to be an Expert as the respondent No.7 had joined service as an Assistant Professor of Department of Zoology in Cotton College only on 17.11.2015 and his focus of research being Avian Photobiology etc. was not even remotely connected to the post in question. 6. It is pleaded that the respondent No.6 did not have the essential qualification as she is a post-graduate in Molecular Biology and Biotechnology, which is not a qualification prescribed in the advertisement. It is pleaded that the respondent No.6 did not have research/analytical experience of 5(five) years, let alone in the field of forensic science. Despite the fact that the respondent No.6 was not even eligible to participate in the selection process, when result of the selection was declared by the APSC on 17.05.2017, it was found that the respondent No.6 was selected and was recommended for the post of Deputy Director (Biology Division), Regional Forensic Science Laboratory, Assam, Jorhat. 7. Mr. Choudhury has submitted that the Notification dated 28.04.2017 (Annexure-16 of the writ petition) issued by the APSC demonstrates that the petitioner had not submitted experience certificate of 5(five) years along with the application. Drawing attention of the Court to Clause-d of the advertisement dated 16.01.2017, i.e. “How to fill up the form”, Mr. 7. Mr. Choudhury has submitted that the Notification dated 28.04.2017 (Annexure-16 of the writ petition) issued by the APSC demonstrates that the petitioner had not submitted experience certificate of 5(five) years along with the application. Drawing attention of the Court to Clause-d of the advertisement dated 16.01.2017, i.e. “How to fill up the form”, Mr. Choudhury has submitted that the said Clause of the advertisement permits submission of documents in respect of caste, age and pass certificates only within a grace period of 10(ten) days but in no case, experience certificate could have been allowed to be filed subsequent to the last date of filing of the application in terms of Clause (d). He has contended that M. Sc. Degree of the petitioner being on the subject of “Molecular Biology and Biotechnology” and not on the subject of “Biotechnology”, in absence of any equivalence granted by the Government of Assam treating the M.Sc. Degree of “Molecular Biology and Biotechnology” as equivalent to M.Sc. Degree of “Biotechnology”, APSC did not have the jurisdiction and authority to treat the application of the respondent No.6 to be a valid application. Even if it is accepted for argument’s sake that research experience gathered during the pursuit of Ph.D. is considered to be research for the purpose of the post in question, the application of the respondent No.6 being deficient, ought to have merited rejection in as much as the provisional certificate (Annexure-G of the application for vacating stay) indicates that she was registered for the Ph.D. course in the year 2012 and was conferred with the Ph.D Degree only on 17.04.2017. Criticising the methodology adopted by the interview Board, Mr. Choudhury submits that the interview Board did not attach any importance to the analytical experience of the petitioner. It is submitted by him that the petitioner is the only expert in Assam doing DNA finger print analysis. The Expert invited to conduct the interview did not have the requisites of an Expert to conduct an interview as he had merely an experience of 1(one) year 6(six) months as an Assistant Professor, that too, in a subject not related to forensic science. Accordingly, he has submitted that the selection process is entirely vitiated warranting interference of this Court. Mr. Choudhury has placed reliance on the judgments of the Apex Court in the cases of Dr. Krushna Chandra Sahu & Ors. Accordingly, he has submitted that the selection process is entirely vitiated warranting interference of this Court. Mr. Choudhury has placed reliance on the judgments of the Apex Court in the cases of Dr. Krushna Chandra Sahu & Ors. -Vs- State of Orissa & Ors., reported in (1995) 6 SCC 1 , Secretary, A.P. Publish Service Commission -Vs- B. Swapna & Ors., reported in (2005) 4 SCC 154 , Mohd. Sohrab Khan -Vs- Aligarh Muslim University & Ors., reported in (2009) 4 SCC 555 , Ganapath Singh Gangaram Singh Rajput -Vs- Gulbarga University & Ors., reported in (2014) 3 SCC 767 , Nagaland Public Service Commission -Vs- State of Nagaland, reported in (2017) 4 Scale 275 . 8. Mr. Roy Choudhury, learned counsel appearing for the respondent No.6 has submitted that M.Sc. Degree obtained by the petitioner being Molecular Biology and Biotechnology, it cannot be construed that the respondent No.6 does not have the essential qualification of M.Sc. Degree in Biotechnology. It is submitted that nomenclature of the Degree will not be material when the subject of Biotechnology is very much a part of the Degree in question and besides that Molecular Biotechnology is also a part of the Biotechnology and, therefore, the contention advanced by Mr. Choudhury that the respondent No.6 does not have essential qualification of M.Sc. Degree is misconceived. He has also submitted that the advertisement is open for fresh candidates as well and giving of precedence to a candidate on account of he or she having desirable qualification will arise only in the event of both the candidates being at par. Relying on the additional affidavit filed in the writ petition, Mr. Roy Choudhury submits that the Ph.D. Entrance Examination-2011 was held on 23.12.2010 and the respondent No.6 was directed to appear before the Head of the Department on 17/18.01.2011 for admission. He has also drawn the attention of the Court to the certificate dated 26.7.2011 (Annexure-F of the additional affidavit) issued by the Controller of Examination, Tezpur University to submit that the respondent No.6 was admitted to the programme of Ph.D. on 17.01.2011 and, therefore, there can be no mistaking of the fact that the respondent No.6 had the requisite experience of research experience, she having pursued Ph.D. Programme. Mr. Roy Choudhury submits that the contention advanced by Mr. Mr. Roy Choudhury submits that the contention advanced by Mr. M. Choudhury that only caste, age and pass certificates could have been submitted later on in terms of Clause-d of “How to fill up the form” of the advertisement is misconceived in as much as the Clause is not restricted to caste, age and pass certificates only. After the Notification was issued on 28.04.2017, the respondent No.6 duly submitted the research certificate within the time stipulated. It is also submitted that the provisional certificate of Ph.D. was issued by the Controller of Examinations on 19.12.2016 and the original certificate was issued on 07.04.2017, which was also submitted subsequent to the issue of the Notification dated 28.04.2017. Accordingly, he submits that the documents submitted by the petitioner must be construed to have been submitted in accordance with law within the time prescribed. Ph.D. Degree was obtained by the respondent No.6 prior to last date of submission of the application and, therefore, it cannot be contended that the respondent No.6 did not have the requisite qualification at the time of submission of the application. Placing reliance on the Instruction regarding direct recruitment through the Public Service Commission issued by the Governor with particular emphasis on Clause 2, he has submitted that the Expert was deputed by the Government of Assam. In this connection, he has also placed before the Court a document dated 21.07.2017, furnished to the respondent No.6 in response to the query made under the Right to Information Act, 2005. The Expert possesses educational qualification, which is also one of the prescribed essential qualifications as per the advertisement in question and, therefore, merely because Expert’s field of study was not pertaining to forensic science will not invalidate his appointment as an Expert. It is submitted by him that the petitioner did not raise any grievance with regard to the selection process and only after she had not been selected, had sought to raise issues which have no basis whatsoever. Mr. Roy Choudhury has placed reliance on the judgments of the Supreme Court in the cases of Dr. Triloki Nath Singh -Vs- Dr. Bhagwan Din Misra & Ors., reported in (1990) 4 SCC 510 , Madan Lal & Ors. Mr. Roy Choudhury has placed reliance on the judgments of the Supreme Court in the cases of Dr. Triloki Nath Singh -Vs- Dr. Bhagwan Din Misra & Ors., reported in (1990) 4 SCC 510 , Madan Lal & Ors. -Vs- State of J & K & Ors., reported in (1995) 3 SCC 486 , Bibhudatta Mohanty -Vs- Union of India & Ors., reported in (2002) 4 SCC 16 , Madras Institute of Development Studies & Anr. -Vs- K. Sivasubramaniyan & Ors., reported in (2016) 1 SCC 454 and Sunil Kumar & Ors. -Vs- Bihar Public Service Commission & Ors., reported in (2016) 2 SCC 495 . 9. Mr. C. Barua, learned standing counsel, APSC submits that the selection process was conducted transparently and there is no infirmity in the selection process. He has also placed before the Court the copy of the mark-sheets for the post in question. 10. Mr. C. Bhattacharyya, learned State counsel submits that as the selection is conducted by APSC, the State Government has to act on the recommendations of the APSC. 11. I have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record. 12. In the advertisement dated 16.01.2017, the essential qualification for the post of Deputy Director, Biology Division was laid down as follows:- “Essential Qualification (i) M.Sc. in Botany/Zoology/Anthropology (Physical)/Biotechnology from a recognized university with 5(five) years Research/Analytical experience.” Desirable qualification was shown as (i) experience in a Forensic Science Institution. 13. The petitioner is presently serving as Scientific Officer, Directorate of Forensic Science. Rule 3 of the Assam Forensic Science Laboratory Service Rules, 1985, as amended, provides that Class-I of service shall include the cadres of – (i) Director, (ii) Joint Director, (iii) Deputy Director, (iv) Senior Scientific Officer, and (v) Scientific Officer. It also provides that Forensic Science Laboratory shall consist of Divisions headed by a Deputy Director. Rule 5(3) provides that recruitment to the cadre of Deputy Director, Senior Scientific Officer of the service shall be made by promotion in accordance with Rules 12, 13 and 14. Proviso to Rule 5(3) prescribes that if requisite numbers of candidates duly qualified and suitable are not available for filling up the vacancies by promotion, the vacancies shall be filled up by direct recruitment in accordance with Rule 6(1) and Rule 18. Proviso to Rule 5(3) prescribes that if requisite numbers of candidates duly qualified and suitable are not available for filling up the vacancies by promotion, the vacancies shall be filled up by direct recruitment in accordance with Rule 6(1) and Rule 18. Rule 12 provides that minimum educational qualification required for promotion to the post of Deputy Director is M.Sc. in any one of the prescribed subjects and minimum continuous service of 5(five) years rendered in concerned lower cadre on the 1st January of the year of promotion for becoming eligible for promotion. In respect of Biology Division for the post of Deputy Director, prescribed subjects are Botany/Zoology/Anthropology (Physical)/Biotechnology. Rule 8 provides that for the post of Deputy Director, M.Sc. in one of the prescribed subjects is essential qualification with 5(five) years Research/Analytical experience. Desirable qualification is noted as experience in a Forensic Science Institution. Therefore, the advertisement was issued in accordance with the provisions contained in the rules. 14. The last date of receiving duly filled up application form in the Commission’s Office was fixed on 08.02.2017 during office hours, making it clear that applications (including applications received through post) received after the last date fixed for receipt shall not be entertained. In the context of the arguments advanced that the application of the respondent No.6 was not complete when submitted, it will be appropriate to extract herein below Clause-d of “How to fill up the form”:- “(d) Candidates whose applications are found to be short of caste/age/pass certificates etc will be given 10(ten) days time to submit the aforesaid documents to the commission from the date of publication of the notification (Select/Reject List) in this regard. If any candidate fails to furnish the same within the stipulated period of time, his/her candidature will be rejected summarily and no further request will be entertained.” 15. A Notification dated 28.04.2017 was issued by the Deputy Secretary, APSC requesting the candidates, whose names were mentioned, to submit their essential documents as indicated against their names, by 3:00 PM of 04.05.2017. The name of the petitioner also figured in the said list along with 31 others and it was specified therein that she is to submit 5(five) years Research Experience Certificate. A note was also appended thereto indicating that all the documents relating to educational qualification must be issued on or before the closing date of the advertisement, i.e. 20.02.2017. 16. The name of the petitioner also figured in the said list along with 31 others and it was specified therein that she is to submit 5(five) years Research Experience Certificate. A note was also appended thereto indicating that all the documents relating to educational qualification must be issued on or before the closing date of the advertisement, i.e. 20.02.2017. 16. In Clause-d of “How to fill up the form”, an opportunity was given to the candidates to submit the documents such as caste/age/pass certificates if those were not submitted earlier within 10(ten) days from date of a notification to be issued in that regard. It was also indicated that the candidature of a candidate would be rejected only when a candidate fails to furnish the same within the stipulated period of time. In terms of Clause-d of “How to fill up the form”, notification dated 18.07.2011 was issued indicating that the petitioner is required to submit Research Experience Certificate of 5(five) years. In the said list of 28.04.2017, name of 31 candidates had also appeared. The respondent No.6 accordingly had submitted the experience certificate dated 01.12.2016 issued by the Ph.D. Supervisor. The said certificate goes to show that she was admitted in the said course in the year 2011 and had successful completed on 07.11.2016. The submission of Mr. M. Choudhury that Clause-d of “How to fill up the form” of the advertisement did not prescribe that an opportunity would be granted to submit experience certificate also and, therefore, the APSC was wrong in issuing the notification dated 18.07.2011 requiring the petitioner and other 30 candidates, is found to be devoid of any merit. Clause-d of “How to fill up the form” is not exhaustive and it does not indicate that only in the event caste/age/pass certificates are found short, an opportunity to submit the same will be extended. It provides that caste/age/pass certificate etc. can be submitted within 10(ten) days of the notification to be issued in the aforesaid context. The word “etc.” takes within its fold any document that is required to be submitted along with the application form. Clause-d of “How to fill up the form” was incorporated in the advertisement to enable the candidates to supply the requisite documents in case they were found short on scrutiny. The word “etc.” takes within its fold any document that is required to be submitted along with the application form. Clause-d of “How to fill up the form” was incorporated in the advertisement to enable the candidates to supply the requisite documents in case they were found short on scrutiny. The idea is not to eliminate a candidate on the ground of some defect in the application form or in the enclosures thereto. Only when a candidate fails to submit the requisite documents inspite of opportunity granted, then only a candidature of such candidate is liable to be rejected. Therefore, I am unable to accept the submission of Mr. Choudhury that the APSC committed manifest illegality in accepting the application of the respondent No.6. 17. A perusal of the letter dated 07.01.2011 annexed as Annexure-B to the additional affidavit filed on 28.07.2017 goes to show that the respondent No.6 was admitted to the Ph.D. Programme-Spring, 2011 and she was asked to report to the Head of the Department of Molecular Biology and Biotechnology during 9:30 AM to 12:30 PM on 17.01.2011 or 18.01.2011. She was required to pay Rs.12,269/- for full time category and the respondent No.6 had deposited the said amount on 12.01.2011 as would be evident from Annexure-C, which is a fee payment challan. Annexure-G to the application for vacating stay is a provisional certificate certifying that the respondent No.6 had qualified for the Degree of Doctor of Philosophy (Ph.D.) in the year 2016. The certificate is dated 19.12.2016. As on Annexure-G, registration for Ph.D. is shown to be of the year 2012, Mr. Choudhury has argued that when the advertisement was issued, the respondent No.6 could not have research experience for 5(five) years. The submission is without substance as it is manifest that the respondent No.6 was admitted into the Ph.D. Programme on 17.01.2011. Registration number assigned by the University cannot determine the commencement of the course. Annexure-F dated 26.07.2011 and Annexure-G dated 04.08.2011 of the additional affidavit filed in the writ petition are certificates issued by the Controller of Examinations, Tezpur University and Head, Department of Molecular Biology & Biotechnology, respectively, certifying that the respondent No.6 joined the Department on 17.11.2011. The respondent No.6 had submitted her Ph.D. thesis on 17.06.2016. 18. While the petitioner is M.Sc. in Biotechnology, the respondent No.6 had obtained M.Sc. Degree in Molecular Biology & Biotechnology from Tezpur University. The respondent No.6 had submitted her Ph.D. thesis on 17.06.2016. 18. While the petitioner is M.Sc. in Biotechnology, the respondent No.6 had obtained M.Sc. Degree in Molecular Biology & Biotechnology from Tezpur University. Submission was advanced by Mr. Choudhury that the respondent No.6 does not have the essential qualification of M.Sc. Degree in Biotechnology. In this connection, he had submitted that the APSC ought not to have allowed participation of the respondent No.6 in the selection process by deviating from the prescribed qualification. 19. In Dr. Krushna Chandra Sahu (supra), the Supreme Court had reiterated the proposition that the Selection Committee does not have the inherent jurisdiction to lay down the norms for selection and such power cannot be assumed by necessary implication. It was further held that the Selection Committee does not have any power to add to the required qualifications. It was also held that if statutory rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. 20. In B. Swapna (supra), it was laid down that once a process of selection starts, the prescribed selection criteria cannot be changed and the logic behind the same is based on fair play. It was further held that the power to relax the eligibility condition, if any, to the selection must fairly be spelt out and in absence thereof, cannot be exercised. 21. In Mohd. Sohrab Khan (supra), the post advertised was Lecturer in Chemistry and the essential qualification prescribed was a First Class Master’s Degree in the appropriate branch of teaching post in Humanities and Sciences. While the appellant before the Supreme Court, i.e. Mohd. Sohrab Khan, had a First Class Master’s Degree in Chemistry (Pure), another candidate, namely, Merajuddin Ahmed had First Class Master’s Degree in Industrial Chemistry. The selection Committee selected Merajuddin Ahmed on the ground that he would be more suitable to the aforesaid post as he held a Master’s Degree in Industrial Chemistry, which, according to it, would be most suited to teach the particular subject. The appointment offered to Merajuddin Ahmed was set aside by the Division Bench of the High Court holding that the course of the aforesaid 2(two) subjects are quite different and distinct. However, no direction was issued to appoint Mohd. The appointment offered to Merajuddin Ahmed was set aside by the Division Bench of the High Court holding that the course of the aforesaid 2(two) subjects are quite different and distinct. However, no direction was issued to appoint Mohd. Sohrab Khan who was placed at serial No.2 in the select list. Having regard to the advertisement issued, the Supreme Court held that the post advertised was meant for a person belonging to Pure Chemistry Department for if it were otherwise, then it would have been so mentioned in the advertisement itself that a person holding a Master’s Degree in Industrial Chemistry should only apply or that a person holding such a Degree could also apply along with other persons, which was not the case. It was, accordingly, held that the Selection Committee as also the University changed the rule in the midstream which was not permissible. 22. In Ganapath Singh Gangaram Singh Rajput (supra), applications were invited for filling up of various posts in different subjects including the post of Lecturer in MCA. The advertisement required Post-Graduate Degree in the “relevant subject”. The Supreme Court has held that “relevant subject” in the context aforesaid would mean Post-Graduate Degree in MCA and for appointment to the post of Lecturer in MCA, the Master’s Degree in Mathematics is not the relevant subject. As the appellant before the Supreme Court did not have the Master’s Degree in Computer Application, the Supreme Court held that he was not entitled to be considered for appointment as Lecturer in MCA. 23. In Nagaland Public Service Commission (supra), the prescribed qualification in the advertisement was M.SC in the subject concerned. The post involved was the post of Lecturer in Chemistry. The appellant before the Supreme Court was M.Sc. in Biochemistry and his contention that Biochemistry is Chemistry for all purposes was repelled as what was prescribed is M.Sc. in Chemistry only without any further description and accordingly held that the Public Service Commission was not right on completing the selection based on the opinion sought from the expert that Biochemistry is Chemistry for all purposes. It was also held that the Public Service Commission is only to go by the qualification prescribed and it cannot improve upon that. 24. The factual matrix of the aforesaid cases is different from the present case. M.Sc. Degree of the respondent No.6 was in respect of Molecular Biology and Biotechnology. It was also held that the Public Service Commission is only to go by the qualification prescribed and it cannot improve upon that. 24. The factual matrix of the aforesaid cases is different from the present case. M.Sc. Degree of the respondent No.6 was in respect of Molecular Biology and Biotechnology. No doubt the Degree is also in respect of Molecular Biology, but the same cannot detract the fact that M.Sc. Degree was in respect of the Biotechnology also and, therefore, in the context of the case when a subject is very much part of the M.Sc. Degree, it cannot be said that the respondent No.6 did not meet the essential eligibility criteria. 25. The Expert, namely, the respondent No.7, was deputed by the Government of Assam. The learned senior counsel for the petitioner had submitted that the respondent No.7 did not meet the requirement of an Expert as he joined as an Assistant Professor only on 17.11.2015 and his research area being in the field of Avian Photobiology, etc. The argument is not well founded. In Black’s Law Dictionary, 5th Edition, ‘Expert’ is defined as one who is knowledgeable in specialised field, that knowledge being obtained from either education or personal experience or one who by habits of life and business has peculiar skill in forming opinion on subject in dispute. The learned senior counsel for the petitioner has not been able to show that to be invited as an Expert, he must have working experience of a minimum number of years. 26. The Expert is an Assistant Professor of Department of Zoology. The essential educational qualification for the post in question is M.Sc. in Botany/Zoology/Anthropology (Physical)/Biotechnology. It is not the case set up by the writ petitioner that the Expert was not an M.Sc. in any of the above subjects. It may be that the Expert had specialisation in Avian Photobiology but the core subject nonetheless is Zoology. 27. In Dr. Triloki Nath Singh (supra), the Supreme Court had held that subject of Hindi Language and Literature and the subject of Linguistics are entirely separate subjects of study. The prospectus of the University has made it abundantly clear that separate courses of study are prescribed for MA Part-I or Part-II in respect of Hindi on the one hand and Linguistic on the other hand. The prospectus of the University has made it abundantly clear that separate courses of study are prescribed for MA Part-I or Part-II in respect of Hindi on the one hand and Linguistic on the other hand. The Supreme Court also noted that Explanation-II of Section 31(5)(a) of the Uttar Pradesh State Universities Act, 1973 laid down that where the post of teacher to be selected is common to more than one subject of study, in that case, the expert may belong to either of such subjects of study. The ratio of the aforesaid judgment is squarely applicable in the instant case and, therefore, the submissions advanced regarding incompetence of Expert is without any merit. 28. The petitioner, either during the interview process or immediately thereafter, did not raise any issue with regard to the appointment of the respondent No.7 as the Expert and only after the result of the interview is declared, the question is sought to be raised regarding the manner of conducting the selection process and appointment of the Expert. 29. In Madan Lal (supra), it was held by the Supreme Court that if a candidate takes a calculated chance and appears in the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. The proposition laid down in Madan Lal (supra) was reiterated in Madras Institute of Development Studies (supra). 30. From the minutes of the meeting of the Commission held on 03.12.2016 at 11:30 AM, it is seen that under item number No.7 thereof on the subject of “Allotment of marks in respect of Expert/Adviser instead of Grading”, the Commission had opined that experts/advisers play a significant role in measuring the comparative merit of the candidates and, therefore, they should be given equal opportunity in terms of marks as that of the Chairman/Member to select the right person through a transparent selection process. It will be appropriate to quote Item No. 7: Allotment of marks in respect of Expert/Adviser instead of Grading, which is as follows: “The Commission observed that in the viva-voce interview in respect of Direct Recruitment Expert/Adviser are supposed to award Grade out of five gradings viz., ‘Excellent’, ‘Very Good’, ‘Good’, ‘Fair’ and ‘Average’ and the value of which has been determined by the Commission as enunciated in Rule 30 of the APSC (Procedure and Conduct of Business) Rules, 2010. Rule 30 0f the aforesaid Rules is given below: 30. In the viva-voce test, marks shall be allocated as below: (i) 50 marks on academic/professional qualification/service experience relevant to the post/preferential qualification. (ii) 50 marks for subject knowledge and general bearing. Out of this 20 marks shall be for subject knowledge and remaining 30 marks for general bearing. The meeting deliberated that Experts/Advisers play a significant role in measuring the comparative merit of the candidates and therefore, they should be given equal opportunity in terms of marks with that of the Chairman/Member to select the right person for the right job through a transparent selection process as per the mandate of the Constitution of India. Accordingly, after deliberations, the meeting came to the conclusion that there shall be marking system in respect of Expert/Adviser instead of Grading unless otherwise specified. Thus, out of 50 marks for Subject Knowledge and General Bearing, henceforth, 25 marks in respect of Expert/Adviser and 25 marks for the General Bearing shall be allocated. The meeting also decided that the Commission in its subsequent meetings will deliberate on the modalities for awarding consensus marks by each interview board. However, the meeting was unanimous that to give effect to the aforesaid decision, Rule 30 as aforesaid should be suitably amended. Accordingly, the meeting entrusted Secretary to do the needful in this regard.” 31. The meeting also decided that the Commission in its subsequent meetings will deliberate on the modalities for awarding consensus marks by each interview board. However, the meeting was unanimous that to give effect to the aforesaid decision, Rule 30 as aforesaid should be suitably amended. Accordingly, the meeting entrusted Secretary to do the needful in this regard.” 31. For the post in question, the marks were to be allotted as follows:- Marks allotted as follows : 100 (a) H.S.L.C. : 9 (b) H.S.S.L.C. : 9 (c) Degree : 10 (d) Master Degree : 13 (e) Experience: (a) In a Forensic Science Institution (b) Research/Analytical : 1-3 years – 1 2 More than 3 years – 2 2 5-6 years – 1 2 More than 6 years - 2 2 (f) Additional Qualification: : (a) PhD : 2 (b) MPhil : 1 (c) Paper Publication: 1 – 2 Papers – 1 More than 2 Papers – 2 : 2 (g) General Bearing : 25 (h) Knowledge of the Subject : 25 32. In respect of the petitioner, on subject Knowledge, the Expert had awarded 18 marks to the petitioner and 23 marks to the respondent No.6. On General Bearing, out of 25 marks, the petitioner was awarded 20 marks by the Chairman and 18 marks by the Member. On the Head of Experience, the Chairman and the Member both awarded to the petitioner 4 marks : 2 marks for experience for being in the Forensic Science Institution for more than 3(three) years and 2 marks for research/analytical experience of more than 6(six) years. On the component of General Bearing, the Chairman and the Member had awarded 23 and 20 marks, respectively, to the respondent No.6. The respondent No.6 was awarded 1 mark by both the Chairman and Member on the Head of Experience. The average of the marks given by the Chairman and the Member were taken into consideration and on the component of General Bearing, while petitioner obtained 19 marks, the respondent No.6 had obtained 21 marks. 33. The following are the marks obtained by the petitioner and the respondent No.6 on the component of education qualification: Parties HSLC HS Degree Master Degree Petitioner 6.35 3.60 6.02 7.13 Respondent No.6 7.39 7.84 8.52 11.90 34. The petitioner obtained total marks of 66.43 rounded off to 66 marks while the respondent No.6 obtained 84.65 marks rounded off to 85 marks. The petitioner obtained total marks of 66.43 rounded off to 66 marks while the respondent No.6 obtained 84.65 marks rounded off to 85 marks. The position of the petitioner in the select list is 50. Having secured the highest marks, the respondent No.6 was placed at serial No.1 of the select list. 35. The argument advanced that not granting preference to the writ petitioner is a vitiating factor, enough to interdict the selection process, according to the perception of the Court, is untenable. The question of granting preference on the basis of higher qualification or desirable qualification will arise in favour of a candidate possessing such higher or desirable qualification if he is at par with other candidates. In Bibhudatta Mohanty (supra), the Supreme Court has held that where any rule or guideline provides preference in respect of some higher qualification, it only means that all other requirements being equal, a person possessing higher educational qualification will be preferred. It was further held that it cannot, however, be considered as the sole criterion for preference in selection and appointment. 36. In Sunil Kumar (supra), one of the questions that had arisen was the extent of the power of judicial review to scrutinise the decisions taken by another constitutional authority, namely, Public Service Commission, in the facts of the case. In the absence of any clear malafides and the uniform application of the Principles adopted by the Public Service Commission, the Supreme Court did not interfere with the resolutions adopted by the Public Service Commission as such resolution did not disclose any gross or palpable unreasonableness. In the instant case also, there is no allegation of malafides and principles adopted by the Commission were applied uniformly. 37. In view of the above discussions, I find no merit in this writ application and accordingly, the same is dismissed. No cost.