JUDGMENT : Nelson Sailo, J. The 2 (two) writ petitions involve similar questions to be decided and therefore, they are taken up together for final disposal. Mr. R.M. Choudhury, learned counsel appears for the petitioner in WP(C) No. 1223/2013, while Mr. T.J. Mahanta, learned senior counsel assisted by Mr. T. Gogoi, appears for the petitioner in WP(C) No. 6804/2013. Mr. S. Biswas, learned Standing Counsel, Forest Department appears for all the respondents. 2. The case of the petitioner in WP(C) No. 1223/2013 is that he responded to the advertisement dated 13.08.2010, notified by the Planning Officer-I of the Office of the Principal Chief Conservator of Forest and Head of Forest Force, Assam, for the post of Junior Assistant (Divisional Level). The petitioner fulfilled the required criteria that was provided in the advertisement for the post of Junior Assistant (Divisional Level) and accordingly, he was called for a written examination vide the Calling Letter dated 25.08.2011. The written examination was held on 25.09.2011 and the petitioner found his Roll Number amongst the candidates who qualified in the written examination for the post. He was then called for Computer Eligibility Test, Typing Test and Viva Voce test vide Calling Letter dated 16.04.2012, informing him that the tests will be conducted on 07.05.2012. While he was confident that he had performed well in the tests, the petitioner did not find his Roll Number amongst those who were declared to be selected as was published in the local daily, i.e. 'Assam Tribune' on 28.11.2012. Being highly dissatisfied, the petitioner submitted an application through RTI Act, seeking the answer scripts of the Computer Eligibility Test and the marks given to him in the Viva Voce Test. As he did not receive any response, the petitioner filed WP(C) No. 5758/2012 before this Court. This Court was however of the view that since the petitioner failed to show any specific instance of illegality and the averments made in the writ petition being vague and inadequate for invoking writ jurisdiction, dismissed the writ petition vide order dated 04.12.2012. Liberty was however granted to the petitioner to approach the Court again in the event information as sought by him under the RTI Act was given and the same disclosed a cause of action. 3.
Liberty was however granted to the petitioner to approach the Court again in the event information as sought by him under the RTI Act was given and the same disclosed a cause of action. 3. Thereafter, the petitioner received a letter dated 26.12.2012 from the State Public Information Officer and Conservator of Forest (Legal), wherein certain information was given to him. Upon receiving the information, the petitioner is again before this Court through the present writ petition. 4. Mr. R.M. Choudury, learned counsel for the petitioner submits that the respondents have violated the statutory rules and procedure of advertisement by not showing the Viva Voce total marks that can be awarded to the candidates. The respondent No. 5 has also violated the provisions of RTI Act, 2005 by not providing information sought for by the petitioner on 29.11.2012 and 06.12.2012. He further submits that the petitioner was allotted 95 marks in the written test and 34 marks in the viva voce test and thereby, scored a total 129 marks. He submits that in the written test against question No. 40, although the petitioner gave the correct answer, the answer given by him was marked as wrong answer. Had the petitioner been allotted marks towards question No. 40, his total score would have been 130 marks and he would have been eligible to be appointed for the post of Junior Assistant (Divisional Level) since the last cutoff mark from the General Category was 130 marks. Besides allotting marks against question No. 40, the petitioner was allotted marks towards the Computer Eligibility test, he surely would have been in the zone of consideration. Under the facts and circumstance, suitable interference of this Court is called for. 5. Mr. T.J. Mahanta, learned senior counsel for the petitioner in WP(C) No. 6804/2013 submits that the petitioner similarly participated in the selection process for the post of Junior Assistant (Divisional Level) as was advertised on 13.08.2010. The petitioner appeared as an OBC candidate. He submits that according to the petitioner, he performed well in the selection process and was expecting to be selected for the post. However, when the results were pronounced, he did not find his Roll Number against the list of selected candidates. Being highly dissatisfied, he submitted an application to the respondent authorities concerned by invoking the RTI Act.
He submits that according to the petitioner, he performed well in the selection process and was expecting to be selected for the post. However, when the results were pronounced, he did not find his Roll Number against the list of selected candidates. Being highly dissatisfied, he submitted an application to the respondent authorities concerned by invoking the RTI Act. Accordingly, a reply was furnished to the petitioner and he found that he had scored 117 marks. He was also informed that the cutoff marks for OBC Category candidates was 118 marks. The learned senior counsel submits that the petitioner on going through the answer script that was furnished to him found that 2 (two) questions in Part-A of the General English Paper i.e. Nos. 33 and 40 were wrongly marked as 'Incorrect' despite the petitioner having answered the 2 (two) questions correctly. By referring to question No. 40, the learned senior counsel submits that the petitioner had marked option (d) as the correct answer. However, the same was marked as a wrong answer. By referring to the Oxford dictionary, he submits that the meaning of 'Vary' has been provided as 'Variation'. Since the word 'Variation' was not amongst the 4 (four) choices given against question No. 40, the petitioner opted for answer (d) i.e. 'None of the above'. The petitioner having answered the question concerned correctly, the same could not have been marked as a wrong answer. Therefore, if one more mark was allotted to the petitioner against question No. 40, his total marks would be 118 marks, making him eligible to be selected for the post as the cutoff marks for OBC Category candidate was 118 marks. 6. The learned senior counsel further submits that the respondent authorities failed to allot any marks towards Typing Test and if marks were allotted, the petitioner surely would have scored the cutoff marks and be selected for appointment to the post. He also submits that non-impleadment of the selected candidates will not be fatal inasmuch as, the Division Bench of this Court has held in the case of Sapam Jiten Singh & Ors. Vs. Manipur Public Service Commission, Imphal & Anr., (2012) 2 GauLT 893 that there is no requirement for impleading successful candidates and that the proceedings can be maintained in their absence. He also refers to the case of Ningthoujan DevDas Singh Vs.
Vs. Manipur Public Service Commission, Imphal & Anr., (2012) 2 GauLT 893 that there is no requirement for impleading successful candidates and that the proceedings can be maintained in their absence. He also refers to the case of Ningthoujan DevDas Singh Vs. State of Manipur & Ors., (2013) 5 GauLT 672 (MN) to contend that in the event Court comes to a finding that there was error committed in the selection process and appointment, the successful petitioner can be either be appointed against any existing vacancy or by following the principle of 'Last come first go'. Under the facts and circumstance, he submits that suitable interference of this Court is called for. 7. Mr. S. Biswas, learned Standing Counsel for the Forest Department submits that the petitioners have claimed that the respondents have violated statutory rules and guidelines in not mentioning the allotment of marks to each of the criteria for selection mentioned in the advertisement, more particularly in respect of Viva Voce. However, they have failed to substantiate as to what statutory provision has been violated by the respondents. He submits that the burden is on the petitioner to prove that mandatory provisions were not complied with. In the present case, the petitioners have failed to discharge their burden. He further submits that the petitioner have also made a prayer that the candidates who appear in the final select list for appointment to the post concerned should not be appointed and in case they were already appointed, they should not be paid the salary. He submits that while making such prayer, the petitioners have not impleaded the selected candidates as a party respondent in the writ petition and therefore, they cannot raise such a plea since the selected candidates cannot be condemned unheard and in violation of the principles of natural justice. 8. Mr. S. Biswas, learned Standing Counsel further submits that assuming the fact that the advertisement was wrongly notified without appearing to the same, the fact remains that the petitioners willingly participated in the selection process without any protest and therefore having found themselves to be not successful on the declaration of final result, they are only estopped from challenging the selection process at this stage. By referring to the affidavit-in-opposition of the respondents, Mr.
By referring to the affidavit-in-opposition of the respondents, Mr. Biswas, learned Standing Counsel submits that the answer papers were duly corrected as per the answer keys and since the petitioners did not give their answer in conformity with the answer keys particularly against question Nos. 33 and 40 of the General English Paper, they cannot claim for allotment of any marks. Under the facts and circumstance, the writ petitions are without any merit and the same should be dismissed. Mr. Biswas, learned Standing Counsel in support of his submission has relied upon the following authorities: 1. Kanpur University through Vice Chancellor & Ors. Vs. Samir Gupta & Ors., (1983) 4 SCC 309 . 2. Manish Ujwal & Ors. Vs. Maharishi Dayanand Saraswati & Ors., (2005) 13 SCC 744 . 3. Sadananda Halo & Ors. Vs. Momtaz Ali Sheikh & Ors., 2008 4 619. 4. Amlan Jyoti Borooah & Ors. Vs. State of Assam & Ors.,2002 3 SCC 227. 5. Ran Vijay Singh & Ors. Vs. State of Uttar Pradesh & Ors., (2018) 2 SCC 357 . 6. Judgment & Order dated 05.10.2018 in WP(C) No. 62(AP)/2018, Ms. Hage Mamung Vs. State of Arunachal Pradesh & 4 Ors. 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. As may be noticed, the petitioner in WP(C) No. 1223/2013 had earlier approached this Court by filing WP(C) No. 5758/2012. The writ petition was dismissed since Court was of the opinion that the petitioner was unable to show any instance about the alleged illegality in the selection made for the post in question. Notwithstanding the dismissal of the writ petition, liberty was granted to the petitioner to approach this Court again if the reply given to him on his RTI application merited fresh cause of action. On getting a reply to his RTI application, the petitioner is again before this Court through the present writ petition alleging that the respondents ought to have given marks towards the Typing Test that was conducted and also marks towards the correct answer given vide question No. 40 in the General English Paper. A similar stand has also been taken by the petitioner in WP(C) No. 6804/2013.
A similar stand has also been taken by the petitioner in WP(C) No. 6804/2013. What can be seen is that both the petitioners failed to score the cut-off marks in the respective categories they belonged to and therefore, it is their case that allotment of 1 (one) mark each to them would make them eligible to be selected for the post concerned. It is the specific stand of the respondents that no marks were allotted on Computer Eligibility Test or Typing Test to any of the candidates. If that be so, the petitioners are only in the same footing with others and they cannot have any grievance in this regard. In respect of the claim that the answers given by them being the correct answer, they should be allotted 1 (one) mark each, the same will only have to be considered with reference to the decision of the Apex Court held in the case of Kanpur University Through Vice Chancellor & Ors. (Supra). In respect of the answer keys, the Apex Court held that the same should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalization. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. This finding was again relied upon by the Apex Court in the case of Manish Ujwal & Ors. (Supra). 10. The Apex Court in the case of Sadananda Halo & Ors. (Supra) held that High Court in entertaining writ petitions should not take the position of a fact finding commission and indulge itself in making a roving enquiry on the factual aspects. High Court also has to be slow in relying upon microscopic findings while testing the fairness of the selection process involving thousands of candidates. 11. In the case of Amlan Jyoti Borooah (Supra), a candidate who had subjected himself to a faulty selection process cannot question the same later on. Further, the Apex Court also held that the State in emergent situation subject to constitutional limitations would be entitled to take decision to sub-serve a greater public interest. 12. In the case of Ran Vijay Singh & Ors.
Further, the Apex Court also held that the State in emergent situation subject to constitutional limitations would be entitled to take decision to sub-serve a greater public interest. 12. In the case of Ran Vijay Singh & Ors. (Supra) the Apex Court observed that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of any answer sheet. If error is committed by the examining authority, the complete body of the candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. 13. In the case of Ms. Hage Mamung (Supra), this Court upon considering the fact that in view of the wrong answer keys and the candidates who participated in the selection process were awarded marks Pro-Rata and therefore, no prejudice could be said to have been caused to the petitioner. Consequently, the writ petition was dismissed. In the present case as well, no marks was allotted to any candidate in respect of Computer Test or Typing Test. Likewise, the petitioners participated in the selection process without any complaint and therefore, they are only estopped to raise such grievance at this stage. As for the claim of the petitioners of having given the correct answer against question No. 40, I am of the opinion that the claim does not fulfill the criteria enunciated by the Apex Court in Kanpur University Through Vice Chancellor & Ors. (Supra) and which was again affirmed in Manish Ujwal & Ors. (Supra). 14. As already noticed, the petitioners have also not impleaded the selected candidates in the writ petition and therefore, the writ petition will be vitiated even on this count as well. Authorities relied upon by the learned senior counsel are also found to be not applicable inasmuch as, the facts involved are not similar. 15. Upon considering the matter in its entirety, I do not find merit in the writ petitions and accordingly, the same are dismissed leaving the parties to bear their own cost.