Gauhati High Court
Page No.# 1/13 vs Sri Rahul Tamuli And 6 Ors on 25 January, 2021 Page No.# 1/13
GAHC010276642019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/337/2019
MS. KABYASHREE DUTTA AND ANR
D/O- SRI DHIRENDRA NATH DUTTA, R/O- WARD NO. 4, NATUN MATI,
MARIANI, DIST.- JORHAT, ASSAM, PIN- 785634.
2: SRI MANJIL DEKA
R/O- THANURAM PATH
BYE LANE NO. 13 (B)
BALIKARIAKHARAZARA
P.O. GOPALBAZAR
DIST- NALBARI
ASSAM PIN- 781353
VERSUS
SRI RAHUL TAMULI AND 6 ORS.
S/O- LATE PRABHAT TAMULI, R/O- H/NO. 12, HASTINAPUR, BEHIND
PUNJAB NATIONAL BANK, R.G. ROAD, GUWAHATI, DIST.- KAMRUP
METRO, ASSAM, PIN- 781005.
2:SRI MRIGANKA BORAH
S/O- LATE KESHAB CH. BORAH
R/O- VILL.- UTTAR JAJORI
P.O. BARMANIPUR
DIST.- MORIGAON
ASSAM PIN- 782142.
3:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
SCIENCE AND TECHNOLOGY DEPARTMENT
DISPUR GUWAHATI- 781006.
4:ASSAM ENERGY DEVELOPMENT AGENCY
REP. BY ITS DIRECTOR
BIGYAN BHAWAN
Page No.# 2/13
NEAR IDBI BUILDING
G.S. ROAD GUWAHATI- 781005.
5:ASSAM SCIENCE TECHNOLOGY AND ENVIRONMENTAL COUNCIL
REP. BY ITS DIRECTOR
BIGYAN BHAWAN
NEAR IDBI BUILDING
G.S. ROAD GUWAHATI- 781005.
6:THE ADDITIONAL DIRECTOR
ASSAM ENERGY DEVELOPMENT AGENCY
BIGYAN BHAWAN
NEAR IDBI BUILDING
G.S. ROAD GUWAHATI- 781005.
7:THE SELETION COMMITTEE FOR SELECTION OF SCIENTIFIC OFFICER
CLASS-I
AND JUNIOR SCIENTIFIC OFFICER CLASS-I
REP. BY ITS CHAIRMAN
ASSAM ENERGY DEVELOPMENT AGENCY
BIGYAN BHAWAN
NEAR IDBI BUILDING
G.S. ROAD GUWAHATI- 781005
Advocate for the Petitioner : MR. D DAS SR. ADV
Advocate for the Respondent : MR F KHAN
Date of hearing : 25/01/2021.
Date of judgement : 25/01/2021
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SUMAN SHYAM
JUDGEMENT AND ORDER (ORAL)
Sudhanshu Dhulia, CJ
1. Heard Mr. Mr. D. Das, Sr. Adv. assisted by Mr. R. Sarmah, Adv and Mr. H.K. Nath, Adv,
learned counsel appearing for the appellants. Also heard Mr. H. Gupta, learned counsel for the
respondent nos. 1 and 2, Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam,
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representing the respondent no. 3 and Mr. P.J. Saikia, learned counsel for the respondent nos. 4 to 7.
2. This appeal has been filed against the judgement and order dated 04/10/2019 passed by
the learned Single Judge of this Court in WP(C) No. 3158/2017, by which the writ petition was allowed
setting aside the selection and appointment of the private respondent nos. 6 and 7 in the writ
petition, who are now before this Court in appeal.
3. At this stage we may also state that the order passed by the learned Single Judge is a
combined order passed in three writ petitions, viz. WP(C) 3157/2017, WP(C)6719/2018 and WP(C)
3158/2017. However, since the present matter only relates to WP(C) No. 3158/2017, the facts which
would be stated here will pertain only to the WP(C) No. 3158/2017.
4. Brief facts of the case are that Assam Energy Development Agency ( herein after referred to
as AEDA) which is a Government body and an authority as contemplated under Article 12 of the
Constitution of India, had issued an advertisement dated 26/10/2016 inviting application from eligible
candidates for two posts of Junior Scientific Officer. Out of the two posts (with which we are presently
concerned) 1 (one) is unreserved and 1 (One) was reserved for OBC or MOBC. The eligibility criteria
was that the candidate should not be less than 18 years of age and not more than 43 years of age as
on 01-01-2016. As per the educational qualification, a candidate must be a Bachelor of
Engineering/Technology in Electrical/Electronics/Mechanical with uniform and excellent academic
career and further the candidates must have experience in renewable energy field during their course
or later would be preferred. Thereafter, the process of selection was also advertised, which broadly
prescribed that first step would be that the candidates would be short listed and only the shortlisted
candidates will then be called for the written test and the date of written test will be intimated
individually and also through the website. It was also stated that the venue and time of the written
test, practical test as well as viva-voce would be fixed by the authority and would be notified in due
course. The selection to the aforesaid posts was to be made in accordance with the Service
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Regulations, 2015, which is known as Assam Energy Development Agency Service Regulations, 2015
(herein after referred to as the Regulations). Regulation 6 of the aforesaid regulations reads as
under :-
“6. DIRECT RECRUITMENT
1) Direct recruitment shall be made on the basis of recommendations made by the
Selection Committee in accordance with the procedures here-in-after provided :
(a) Keeping in view the minimum qualification for posts to be filled up by direct
recruitment, as indicated in Schedule-III, the Director, in consultation with members of
the Selection Committee, shall determine additional qualifications as may be
considered necessary.
(b) The Director shall then advertise the posts in local prominent newspapers and through
Employment Exchange, taking care of necessary clauses on reservations for candidates
belonging to Scheduled Castes and Scheduled Tribes or any other categories under the
Rules of the State Government.
(c) The Selection Committee may hold written test or both, and undertake scrutiny of
certificates and documents as may be considered necessary.
(d) The Selection Committee shall furnish to the Appointing Authority a list of candidates
recommended by it, in order of preference, found suitable for direct recruitment. The
number of candidates in such a list may be according to the actual number of
vacancies.
(e) On receipt of the select list of candidates the Director will take necessary steps for
appointment in accordance with the order of preference given in the list with prior
approval of the appointing authority as per Schedule IV.
2) The list mentioned in Clause (d) of Sub-Reg.(1) of this Regulation shall remain valid for
12 calendar months from the date of recommendation/ approval.”
5. The Selection Committee for selection was to be constituted in terms of Regulation 13 of
the aforesaid Regulations, which is quoted here under :-
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“13. SELECTION COMMITTEE
The Selection Committee as referred in Regulation 6 shall consist of the following.
1) Selection Committee for considering the appointment to the post of Director, AEDA
Members of the Committee:
(a) Chief Secretary to the Govt. of Assam – Chairman
(b) Commissioner & Secretary, – Member Secretary
Science & Technology Department
To the Govt. of Assam
(c) One Member to be nominated by the Chairman – Member
of the governing Body of the agency
The post of the Director shall be a tenure post for a period of three years.
The minutes of the Selection Committee shall be sent to the chairman for approval.
2) Selection Committee for considering direct recruitment to the posts in Class I (other than Director)
and Class II Service up to Executive Engineer Level.
Members of the Committee:
a. Commissioner & Secretary/ Secretary to the Govt. – Chairman
of Assam, Science & Technology Department (Vice
Chairman , Governing Body).
b. Director, AEDA – Member Secretary
c. Director of Employment & Craftsman Training, – Member
Govt. of Assam
d. An expert to be nominated by the Director, AEDA – Member
e. One representative from Personnel Dept., – Member
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Govt. of Assam
Note: The presence of any three members will form the quorum.
3) Selection Committee for considering direct recruitment to the posts in Class III and Class IV Service.
Members of the Committee:
a. Director, AEDA – Chairman
b. Nominated Member, Science & Technology – Member
Department, Govt. of Assam
c. Director of Employment & Craftsman Training, – Member
Assam or his nominee
d. An expert to be nominated by the Director, AEDA – Member
e. Administrative Officer/ Dy. Administrative Officer – Member Secretary
Or any other officers to be nominated by the
Director as Member Secretary
Note : The presence of any three members will form the quorum
The above mentioned Committee in 13(2) & (3) will act as Assessment Committee for
promotion of post for Class I & II and III and IV respectively. “.
6. Since admittedly, the appointment was made for the Class -I posts, the Selection
Committee would have to be constituted as per Regulation 13(2). Ideally, it has to be a 5 (five)
member committee but the note given to Sub-Rule 2 makes it clear that presence of 3 (three)
members would complete the quorum. The first meeting of the Selection Committee was attended by
three members including the Director, AEDA. In this meeting, it was decided as to how Junior
Scientific Officer and Senior Accountant would be selected. The committee came to a conclusion that
for the post of Junior Scientific Officer, 20 (twenty) marks are to be given for past academic record
and 5 (five) marks for academic record and experience. 100 marks are to be given for written
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examination and thereafter, it formed an opinion that 75 marks to be given for viva-voce and there
were reason assigned as to why such a high percentage of marks was to be given for viva-voce. The
reasons given by the Selection Committee were that since the ” engagement of the candidates was
primarily intended for smooth execution of the rooftop solar power project which demanded expertise
in specialized areas of grid interfacing solar power; in order to derive knowledge of the candidate in
this specialized sector, more stress should be laid upon in obtaining knowledge of the candidate in the
area through viva-voce and as such more weightage should be given on higher side during
evaluation.”[minutes of the meeting dated 05/01/2017 of the Selection Committee) .
7. With the process adopted above the Selection Committee proceeded forward and admit
cards were issued to the short listed candidates for the written test. Both the writ petitioners as well
as the respondents (writ appellants before this Court) appeared in the written test on 26/03/2017.
After the written test, only 14 (fourteen) candidates qualified for the viva-voce test, which was done
on 29/03/2017. Both the writ petitioners as well as the respondents appeared in the viva-voce
examination in which, ultimately the present appellants before this Court were selected. Appellant
No.1 was selected for reserve category as she had applied for reserved category and appellant no. 2
has been selected for general category. Their appointment was challenged by the other short listed
candidates who were also called for the interview. These are presently respondent nos. 1 and 2 before
this Court.
8. The case of the petitioners was that they were the two candidates who had attained
maximum number of marks in the written examination, which is 92 out of 100 and since the entire
selection was to be based on evaluation of written test alone, they were liable to be selected and
subsequently appointed. The precise averments made by the petitioners in para 6 of their writ petition
is as follows :-
“6. That both the petitioners equally obtain 92 marks which was highest among the shortlisted
candidates and where (sic were) expecting appointment as the advertisement postulated merely a
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written test. The petitioners were expecting appointment as the petitioner jointly emerged in the first
position in the written test.”
9. This is, however, not the correct position as the learned counsel for the appellant has taken
us to the advertisement and regulations and other documents which show that it was up to the
Selection Committee to chalk out a programme as to how selection is to be made. It could have been
only written examination or interview or a combination of both. The selection committee had decided
that there will be a written examination and viva-voce and about 25 marks out of total 200 were also
kept for academic qualification. Reference to this has already been made above. Therefore, the writ
petitioners were not correct in making out a case before the learned Single Judge that the
examination was based purely on a written test and since they had achieved the highest mark in the
written test, they were liable to be appointed. The other ground raised by the writ petitioners was that
the final list of selected candidates had to be uploaded on the website of AEDA, which has not been
done.
10. When the matter came before the learned Single Judge, in order consider the matter in a
better perspective, the learned Single Judge had summoned the entire record and on perusal of the
same, the learned Judge came to the conclusion that the procedure adopted for the selection process
was not a fair procedure, for two reasons. Firstly, the Selection Committee were already having the
knowledge of the number of marks each candidate had obtained in the written examination while they
were evaluating the same candidate for the viva-voce. Hence, there was likelihood of bias. The second
aspect which was in the mind of the learned Single Judge was that one of the members in the
selection committee (who was an expert), was a professor from the Tezpur University and one of the
candidates who had been selected (appellant No. 1) had studied at Tezpur University for her M. Tech.
The marks given by the selection committee were also before the learned Single Judge and, therefore,
the learned Single Judge was of the view that this was not a fair selection. The relevant portion of the
said judgement is quoted herein below for ready reference :-
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“51. In the present case, as mentioned above, there was no need or necessity on the part of the
authorities to make available the marks obtained by the candidates in the written test to the members
of the Interview Board as the marks obtained in the written test had no relevance for proper
assessment of the candidates in the interview by the Selection Committee. This Court fails to
understand why there was any need to furnish the marks obtained by the candidates in the written
test to the members of the Selection Committee. The distinct possibility of the members of the
selection committee being influenced by the marks obtained by the candidates in the written test so
as to have the effect of changing the merit position on the basis of the marks obtained by the
candidates in the written test cannot be totally ruled out. In fact, the petitioners in their
representation dated 24/05/2017 had expressed the apprehension that one of the experts was from
Tezpur University and more than 4 (four) candidates were from Tezpur University. It may be noted
that the Respondent no. 6 (Kabyashree Dutta) had completed her M.Tech from Tezpur University and
the Expert Member of the Selection Committee, Dr. Sadhan Mahapatra was an Assistant Professor
from Department of Energy from Tezpur University. If that is so, this Court would hold that furnishing
of marks obtained by the candidates in the written test to the members of the Interview Board would
have the potential and possibility of muddying the purity of the interview process, thus vitiating the
selection process as there would be a distinct possibility of bias, even if the same has not been proved
or shown to have actually occurred. On this ground alone, this Court is inclined to interfere with the
recruitment process in respect of the two posts of Junior Scientific Officer.”
11. The learned Single Judge also came to the conclusion that it is not a case of suspicion or
bias but a distinct possibility and a real danger of bias. Referring to the judgement of the Hon’ble
Apex Court rendered in the case of N.K. Bajpai Vs. Union of India reported n (2012) 4 SCC 653, came
to the conclusion that there is every likelihood of bias in this case.
12. And consequently thereafter, it was held as under :-
“57. Having held that the said recruitment process for appointment to the two posts of Junior
Scientific Officer is vitiated, what should be the future course of action to fill up these two
posts. One possible course of action is to nullify the entire recruitment process and initiate a
fresh recruitment process which would involve holding of written test again, which course of
action, may however cause certain hardships to the candidates who had already written the
test. The other course of action is to direct the authorities to hold a fresh interview. However
considering the peculiar facts and circumstances as discussed above, when the result of the
written test held is already in public domain and if the respondent authorities were to hold a
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fresh interview, it may not make any difference, for the members of the Selection Committee
are already aware of the marks obtained by the candidates in the written test. Therefore, the
legal vice which is sought to be remedied will become illusory if the Selection Committee is
directed to hold a fresh interview.
Adopting the second course of action, could have avoided inconveniences and
hardships to the candidates who have already appeared in the written test, but under the
circumstances, it may not perhaps be the best option. The result of the written test is known
not only to the members of the Selection Committee but also to all the candidates and the
world at large. As such, there is no more confidentiality about the result of the written test.
Under the circumstances, the distinct possibility of the members of the interview board, even if
reconstituted of being influenced by the result of the written test, cannot be completely ruled
out. Hence, this Court is of the opinion that though holding of a fresh written test and the
interview again may entail and cause hardships to the candidates and inconvenience to the
appointing authority, it would perhaps be the best option available under the circumstances, in
order to uphold the sanctity and purity of the recruitment process for public employment and
enhance public confidence.
Credibility as well as the public confidence on the recruitment process conducted by
the state authorities may ensure transparency, confidentiality and purity of the recruitment
process is of paramount importance and is certainly a facet of the valuable right to equality
and of opportunity in matters of public employment as guaranteed under Articles 14 and 16 of
the Constitution of India.
Written test and interview are two vital components of a recruitment process. While
the written test would normally assess the knowledge of the candidates in the particular field,
interview covers a larger area of the knowledge and personality of the candidates. Though the
shortlisting of candidates for interview may be based on the performance in the written test,
yet it would be expected that the assessment of the candidates made in course of the
interview would be independent of the performance of the candidates in the written test.
Assessment of a candidate in the written test and assessment of a candidate in the interview
are of different and independent nature. Thus, for having a fair and independent assessment
of the candidate during the interview, it ought not to be allowed to be influenced by the
performance of the candidate in the written test by which may be ensured by not disclosing
the marks obtained by the candidates in the written test to the members of the interview
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board.”
13. Undoubtedly, the two selected candidates (Ms. Kabyashree Dutta and Mr. Manjil Deka) have
got the highest marks in the interview 45 and 55 respectively out of 75 whereas both the writ
petitioners had obtained 30 marks each out of 75 marks though they had got the highest in the
written test i.e.92 marks each out of the total of 100 marks. But are these facts sufficient in bringing
out a case of Bias. That is the question.
14. In any case consequent to the above findings, the writ petition was allowed and the
appointment of the two junior Scientific Officers was quashed. The main ground for challenge of the
order of the learned Single Judge here is that the writ petitioners had full knowledge of the procedure
being adopted for the selection, as they knew well in advance that there were 100 marks for the
written test, 75 for Viva-voce and 25 marks for Academic Qualification and Work Experience. Having
submitted themselves to this procedure and then having failed to qualify in the selection they cannot
now cry foul and say the procedure was faulty. In the case of Ramesh Chandra Shah Vs. Anil Joshi,
reported in (2013) 11 SCC 309, the apex Court has observed that :-
“18. It is settled law that a person who consciously takes part in the process of selection cannot,
thereafter, turn around and question the method of selection and its outcome.”
15. Moreover, as to the fact that the selection committee was in the knowledge of marks
obtained by the candidates (who were appearing before the board for viva voce), we have to see
what the Rules and Regulations prescribe in the present case. The Regulations 6 which has already
been referred above clearly stipulates that under Regulation 1(c), it is the selection Committee which
holds the written test or interview or both and undertakes scrutiny of certificates and documents
which is necessary. In this procedure, the selection committee is bound to know the written marks
obtained by the candidates which had subsequently been short listed for viva voce as it is the same
selection committee which conducts the written test as well as the interview and marks the candidates
in each of the two stages. Therefore, though, in all fairness, it is desirable that a selection committee
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does not have the knowledge of the written marks obtained by the candidates, who were appearing
before it in viva-voce, but in the present regulations on which the selection was being carried out, it
was impossible for the selection committee not to know the written marks of the candidate, while they
were evaluating the candidates in viva voce. The Regulations permitted this to happen. These
Regulations have not been challenged. Moreover, merely because the selection committee was in the
knowledge of marks of the candidates in the written test, a presumption cannot be drawn that there
was every likelihood of bias. In Mehmood Alam Tariq Vs. State of Rajasthan reported in (1988) 3 SCC
241, the Apex Court reiterated the above position that a mere possibility of abuse of a provision, does
not, by itself, justify its invalidation. ” The validity of a provision must be tested with reference to its
operation and efficiency in the generality of cases and not by the freaks or exceptions that its
application might in some rare cases possibly produce. The affairs of government cannot be
conducted on principles of distrust.” [Mehmood Alam Tariq Vs. State of Rajasthan, para 24].
16. As far as one of the members of the selection committee being a Professor in the Tezpur
University and the writ petitioner had brought this to the knowledge of the selection committee, we
must say that this was done after the viva voce were over and the result had been announced. So,
again it was an unsuccessful candidate challenging the composition of the Committee. Moreover,
merely because a candidate appearing before the selection committee is from the same University as
one of the member of the selection committee, it is not a real danger of bias but again it has only a
probability of bias. A selection process cannot be set aside on a mere probability of bias. We do not
wish to elaborate on the concept of bias, which our Courts have applied in a given case from time to
time. The settled position of law, all the same, is that where bias is alleged there should be “a real
danger of bias”, as different from “a mere apprehension of bias”. A mere apprehension of bias will not
vitiate the entire selection process, as was the case at hand. [ Kumaon Mandal Vikas Nigam Ltd vs
Girja Shankar Pant & Ors reported in (2001) 1 SCC 182 and Chandra Prakash Singh and others Vs.
Chairman, Purvanchal Gramin Bank and others reported in (2008) 12 SCC 292].
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17. Apart from what we have already stated above, we must note two important facts which
have an important bearing on this case. One of the selected candidates in the general category (Mr.
Manjil Deka), has obtained very high mark in the written examination i.e. 88 out of 100 and the same
candidate had again obtained high marks in the viva voce which is 55. The other selected candidate
which is from the reserved category of MOBC also has a special equity in her favour. We have been
informed that this selected candidate who belongs to the More Other Backward Class i.e. MOBC was
working as an Assistant Professor in the Department of Electronic and Communications in Assam
Down Town University and having been selected and appointed for the post of Junior Scientific Officer
under AEDA, she resigned from the post of Post of Professor and had joined the present post. This
aspect was also placed by the respondents before the learned Single Judge. Since she has already
resigned from the post earlier held by her, she cannot go back to that post. Under these
circumstances, we are of the view that though there may be a probability of bias in the selection
process, but there were no real danger of bias which calls for setting aside the entire selection and
appointment.
18. Consequently, the appeal stands allowed. The judgement and order of the learned Single
Judge dated 04/10/2019 passed in WP(C) No 3158/2017 is hereby set aside.
JUDGE CHIEF JUSTICE
Sukhamay
Comparing Assistant
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