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2018 DIGILAW 490 (GAU)

Mausomi Madhab v. State of Assam

2018-03-21

MICHAEL ZOTHANKHUMA

body2018
ORDER : Michael Zothankhuma, J. 1. Heard Mr. B. Chakraborty, learned counsel for the petitioner. Mr. M.R. Adhikari appears for respondent Nos. 1 and 4. Mr. C. Baruah appears for respondent Nos. 2 and 3. Mr. A.C. Kalita appears for respondent No. 5. The petitioner's case in brief is that the petitioner participated in the combined competitive examination undertaken by the APSC and secured 879 marks. The respondent No. 5, on the other hand, secured 832 marks. The petitioner and the respondent No. 5, both took part in the examination under the Scheduled Caste (Female) Category. The petitioner was not selected and instead the respondent No. 5 was selected for the Assam Police Service. 2. Mr. C. Baruah, learned counsel for the APSC submits that as because the Assam Police Service was the 9th option in the order of preference among the various posts under 10 State Services, opted by the petitioner, she was not selected, whereas the respondent No. 5 had been selected, as the Assam Police Service was the 2nd option, in order of her preference, though the respondent No. 5 had secured less marks than the petitioner. 3. The petitioner's counsel submits that the respondent No. 5 could not have been selected over the petitioner only due to the respondent No. 5 having made the Assam Police Service as her second option in preference, as compared to the petitioner's 9th option, in order of preference. He submits that the merit position of the candidates would have to be screened and the selection has to be made only on the basis of merit. 4. Mr. C. Baruah, learned counsel for the APSC submits that while appearing in such combined competitive examination, respective candidates are required to give their orders of preference and the Commission recommends appointments on the basis of the preference given by the candidates. He submits that in the event, a candidate obtaining higher marks had given a lower option for a particular Service than a candidate who obtained a lower mark, but had given a higher preference as option for the same Service, as has been done in the present case, the Commission would recommend the candidate having lower mark to the Service, in view of the higher option/preference given by the said candidate. He also submits that as per Rule 2 & 14 of the Assam Public Services Combined Competitive Rules, 1989, there was no infirmity in the APSC recommending the respondent No. 5 for appointment to the Assam Police Service, though the petitioner had secured higher marks than the respondent No. 5. 5. Mr. A.C. Kalita, has prayed for adjournment on behalf of Mr. S. Kalita, counsel for respondent No. 5. 6. This Court vide Order dated 13.6.2017 had adjourned the matter on the prayer made on behalf of the counsel for the respondent No. 5. The counsel for the respondent No. 5 was also given time to file affidavit-in-opposition vide Order dated 13.11.2017. Again on 09.03.2018, adjournment prayer had been made on behalf of the counsel for the respondent No. 5, on the ground that he was out of station. However, last chance was given to the respondent No. 5 to file affidavit-in-opposition on 09.03.2018, failing which the matter was to be decided on the basis of the records in the file. 7. There is no affidavit-in-opposition filed by the respondent No. 5 despite the last chance given in the last Order dated 9.3.18. Accordingly, the matter is being decided in the absence of the affidavit-in-opposition, which was to be filed by the respondent No. 5. 8. I have heard the learned counsels for the parties. 9. The facts in issue are not disputed, i.e., the petitioner and the respondent No. 5 had taken part in the Combined Competitive Examination, conducted in pursuance to the advertisement dated 13.08.2013, issued by the APSC, for appointment to posts under 10 different State services. The petitioner secured 879 marks in the selection process, while the respondent No. 5 secured 832 marks. The petitioner and the respondent No. 5 both belong to the Scheduled Caste (Female) Category. The petitioner had put the Assam Police Service as her 9th option in order of preference, out of the 10 Services that were listed in the advertisement dated 13.08.2013. The respondent No. 5, on the other hand, had made the Assam Police Service, as her 2nd option in the list of preference of Services. 10. The petitioner had put the Assam Police Service as her 9th option in order of preference, out of the 10 Services that were listed in the advertisement dated 13.08.2013. The respondent No. 5, on the other hand, had made the Assam Police Service, as her 2nd option in the list of preference of Services. 10. The question that arises for consideration is whether merit can be sacrificed only on account of the petitioner having made the Assam Police Service as her 9th option in order of preference, as compared to the respondent No. 5 putting the same as her 2nd option in order of preference. 11. Rule 2 & 14 of the 1989 Rules states as follows:- "2. A candidate shall be required to indicate in the application form for the Main Examination, his/her order of preferences for various Services/Posts for which he/she would like to be considered for appointment in case he/she is recommended for appointment by Assam Public Service Commission. 14. Due consideration will be made at the time of making appointment on the result of the examination to the preference expressed by the candidate for various services at the time of his/her application. The appointment to various services will also be governed by the Rules/Regulation in force as applicable to the respective services at the time of appointment." 12. A perusal of the above Rules shows that a candidate will be required to indicate in the application form for the main examination, their orders of preference for various services/posts. Rule 14 also states that due consideration will be made at the time of making appointment on the result of the examination to the preference expressed by the candidate for various services. A reading of the above two Rules does not give any indication that merit would be sacrificed only due to the order of preference given by a candidate. 13. The advertisement dated 13.08.2013 states that the APSC will hold the preliminary examination of the combined competitive examination, 2013 for screening candidates for the main examination for recruitment to the under mentioned services/posts in accordance with the Assam Public Services Combined Competitive Examination Rules, 1989 (hereinafter referred to as 'the 1989 Rules'). The above clearly goes to show that the 1989 Rules would only be made applicable for the preliminary examination. It does not talk of the 1989 Rules being made applicable for the main examination. The above clearly goes to show that the 1989 Rules would only be made applicable for the preliminary examination. It does not talk of the 1989 Rules being made applicable for the main examination. Be that as it may, even if the main examination of the Combined Competitive Examination was to be held in accordance with the 1989 Rules, Rule 2 & 14 of the 1989 Rules does not take away the merit/marks secured by a candidate at the alter of preference or option exercised by candidates. This is clearly reflected in Para-6 (f) of the advertisement dated 13.08.2013, which states that: "the candidates will be allotted cadre strictly on the basis of merit cum preferences opted by candidates in their applications for the main examination." 14. In the case of Secretary, A.P. Public Service Commission v. Y.V.V.R Srinibasulu & Ors., (2003) 5 SCC 341 , the Apex Court has held at Para-10 as follows:- "10. Both on account of the scheme of selection and the various stages disclosed as necessary to be undergone by every candidate and the manner of actual selection for the appointment in question, the candidates were required to be selected finally for appointment on the basis of the ranks obtained by them in terms of the inter se ranking based on the merit of their respective performance. There is no escape for anyone from this ordeal and claim for any en bloc favoured treatment merely because, anyone of them happened to possess an additional qualification than the relevant basis/general qualification essential for even applying to the post. The word "preference" in our view is capable of different shades of meaning taking colour from the context, purpose and object of its use under the scheme of things envisaged. Hence, it is to be construed not in an isolated or detached manner, ascribing a meaning of universal import, for all contingencies capable of an invariable application. The procedure for selection in the case involve, a qualifying test, a written examination and oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The procedure for selection in the case involve, a qualifying test, a written examination and oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all round merit if had to be adjudged in that manner only what justification could there be for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The rules do not provide for separate classification of those candidates or apply different norms of selection for them. The 'preference' envisaged in the rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through Public Service Commission, on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority, merit wise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when anyone or more of them are found equally positioned, by using the additional qualification as a tilting factor in their favour vis-à-vis others in the matter of actual selection." 15. Rule 6 (5) of the Assam Police Service Rules, 1966 states as follows:- "5. The Commission shall prepare a list of all candidates who have qualified in the examination in order of merit, with shall be determined in accordance with the aggregate marks obtained by each candidate and if two or more candidates obtain equal marks, the Commission shall arrange them in order of their relative merit which shall be determined in accordance with the general suitability of the candidates to the service. The list shall be forwarded to the Governor and be published in the Assam Gazette." A perusal of the above Rule 6(5) clearly goes to show that the APSC was to prepare the list of candidates in order of merit, in accordance with the aggregate marks obtained by each candidate. Thus, the petitioner being more meritorious than the respondent No. 5, the petitioner should have been selected over the respondent No. 5, for the posts under the Assam Police Service. The preference given by a candidate is only to enable them to be able to join a particular Service, if they are deserving enough, on the basis of the marks secured by them. It is only when a candidate cannot be appointed to a Service of his/her choice, i.e., 1st option, depending upon the marks secured, vis-à-vis other candidates, that a candidate will have to be considered for the 2nd or 3rd option exercised. In the present case, the petitioner would have to be considered for the Assam Police Service, along with the respondent No. 5, only on the basis of the marks secured by them and not on the basis of the preference exercised by them. 16. In the case of Inder Par hash Gupta v. State of Jammu And Kashmir, reported in 2004 (6) SCC 786 , the Apex Court has held that the Public Service Commission is a body created under the Constitution and appointment to a Service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the Services of the State, wherein the Public Service Commission is also required to be consulted. However, while going through the Selection process, the Commission must scrupulously follow the statutory rules operating in the field. Accordingly, though the Commission can lay down the procedure strictly in accordance with the Statutory Rules, it cannot take any action which per se would be violative of the statutory rules or makes the same inoperative for all intent and purport. 17. In the present case, Rule 6 (5) of the Assam Police Service Rules, 1966 clearly requires that selection should be made only on the basis of merit. 17. In the present case, Rule 6 (5) of the Assam Police Service Rules, 1966 clearly requires that selection should be made only on the basis of merit. Thus, just because the petitioner has placed the Assam Police Service as her 9th option in order of preference, the same does not mean that a less meritorious candidate can supersede the petitioner. To supersede the petitioner, the Public Service Commission would have to show that the petitioner has been selected for any other Service, in which she has given a higher option than the 9th option. However, the petitioner has not been selected for any other Service, i.e., with regard to her option Nos. 1 to 8. Thus, the petitioner would have to be considered for her 9th option along with all other eligible candidates and the selection would have to be made strictly on merit, as required by the Rule 6 (5) of the Assam Police Service Rules, 1966. The story would have been different if the petitioner had not made any option for the Assam Police Service. 18. In view of the reasons stated above, this Court is of the view that merit cannot be sacrificed on the basis of a low or high option exercised in order of preference for a particular State Service. Preference cannot be the basis of selection of a candidate at the expense of merit. Accordingly, the selection of the respondent No. 5 being bad in law, is set aside. 19. In view of the reasons stated above and as this Court, vide its interim Order dated 18.11.2015, had directed the respondents to keep one post taken, if appointment letters had not been issued, the respondents are directed to consider the case of the petitioner for appointment under the Assam Police Service over and above the selection of the respondent No. 5. 20. In the event that an appointment order is already issued to the respondent No. 5, the said appointment order shall be deemed to be cancelled as on today and in place of the respondent No. 5, the petitioner shall be given appointment to the said post. Writ Petition is accordingly allowed.