Gauhati High Court
Page No.# 1/32 vs The State Of Assam And 164 Ors on 17 February, 2023
Page No.# 1/32
GAHC010244632022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7675/2022
KRISHANU KUMAR BHAGABATI AND 20 ORS
SON OF AJIT KUMAR BHAGABATI, RESIDENT OF VILLAGE JAPARKUCHI
P.O- TERECHIA, P.S- NALBARI, DISTRICT- NALBARI, PIN- 781334
2: LAKHYA JYOTI DEKA RAJA
SON OF SACHINDRA DEKA RAJA
RESIDENT OF VILLAGE- KATHIATOLI (BILSHAATI) P.O- KATHIATOLI
P.S- KAMPUR DISTRICT - NAGAON
PIN- 782427
3: PINKY SARMAH
DAUGHTER OF INDRESWAR SHARMA
RESIDENT OF JAYANAGAR
KHANAPARA
GUWAHATI
DISTRICT - KAMRUP (M)
PIN- 781022
4: PALASH JYOTI SONOWAL
SON OF AMULYA SONOWAL
RESIDENT OF VILLAGE- C. D
P.O/P.S- NORTH LAKHIMPUR
DIST.- LAKHIMPUR
PIN-787001
5: POOJA SONAR
DAUGHTER OF LATE K.B. SONAR
RESIDENT OF REEG PREMISES
KIDVEDA
BHAGADUTTAPUR
KAHILIPARA
PO/PS- BHAGADUTTAPUR
DIST.- KAMRUP (M)
PIN- 781019
Page No.# 2/32
6: PRINCE CLINTON RAVA
SON OF PARESH RAVA
RESIDENT OF VILLAGE AND PO- KHALILPUR
DIST.- DHUBRI
PIN- 783301
7: PURABI DEKA
DAUGHTER OF BIPIN DEKA
RESIDENT OF CHOWK BAJAR
NALBARI
PIN- 781334
8: DEEP JYOTI DEKA
SON OF PHUKAN CHANDRA DEKA
RESIDENT OF VILL- NAKUL NO 1
CHEPTI P.S- RANGIA
KAMRUP
PIN - 781354
9: JAHNABI JYOTI KALITA
DAUGHTER OF ANJAN KUMAR KALITA NAMDANG
KUMAR GAON
GAURISAGAR
SIVASAGAR
PIN - 785664
10: HONEYSMITA DAS
DAUGHTER OF KANDARPA NARAYAN DAS
RESIDENT OF GOALPARA
KALITAPARA P.O. AND P.S.- GOALPARA DISTRICT- GOALPARA PIN.-
783101
11: KASHMIRI BEGUM
DAUGHTER OF KASEM ALI
RESIDENT OF WARD NO.2
KHAWAJANAGAR
MANGALDAI
DARRANG
PIN- 784125
12: LOOPAMUDRA SARMA
DAUGHTER OF LT.DR. NIKHIL RANJAN SARMA
RESIDENT OF H.NO.25
NABODAY PATH
HENGERABARI
GHY-781036
Page No.# 3/32
13: MADHUSMITA DUTTA
DAUGHTER OF AADITYA KUMAR DUTTA
SIXMILE
CHANDAN NAGAR
VIP ROAD
KHANAPARA
KAMRUP (M)
PIN - 781022
14: KABIR HUMAYUN BIN KHABAR
SON OF KHABIRUDDIN AHMED
RESIDENT OF VILL- DEHAR KURIHA
SANIADI
P.S- HAJO
KAMRUP
PIN - 781102
15: JURI DEORI
DAUGHTER OF BIREN DEORI
RESIDENT OF BISHNU NAGAR
DIGBOI ROAD
MAKUM JN
TINSUKIA
PIN - 786170
16: MANISHA MEDHI
DAUGHTER OF DIMBESWAR MEDHI
RESIDENT OF BHAGADUTTAPUR
LACHIT BARPHUKAN ROAD
H. NO.1
P.O. AND P.S- DISPUR
GUWAHATI KAMRUP (M)
PIN - 781006
17: KRISHNA MOHAN CHUTIA
SON OF SATYENDRA NATH CHUTIA LAHING
RESIDENT OF BALIJONIA GAIN P.O AND P.S- TEOK DISTRICT -JORHAT PIN
785112
18: BISWAJYOTI DAS
SON OF DIPEN CH DAS
RESIDENT OF VILL CHATANGURI PO. KUMURAGURI
DISTRICT - MORIGAON
ASSAM
PIN - 782105
19: HIRAKJYOTI DAS
SON OF RIPUNJOY DAS
Page No.# 4/32
RESIDENT OF P.O. AND P.S.- AGIA DIST- GOALPARA
ASSAM PIN- 783120
20: NANDA KUMAR ROY
SON OF NARENDRA NATH ROY
RESIDENT OF P.O- GURUFELA DISTRICT - KOKRAJHAR
BTR
ASSAM PIN- 783360
21: JIAUR RAHMAN
SON OF MAZIBAR RAHMAN
RESIDENT OF VILLAGE- BAGHMARA P.O AND P.S- GHOGRAPAR DISRICT-
NALBARI
78136
VERSUS
THE STATE OF ASSAM AND 164 ORS
REPRESENTED BY THE COMMISSIONER SECRETARY TO THE
GOVERNMENT OF ASSAM, ANIMAL HUSBANDRY AND VETERINARY
DEPARTMENT, DISPUR, GUWAHATI- 781006
2:THE ASSAM PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS CHAIRMAN
JAWAHARNAGAR
KHANAPARA
GUWAHATI-781022
3:THE SECRETARY
ASSAM PUBLIC SERVICE COMMISSION
JAWAHARNAGAR
KHANAPARA
GUWAHATI-781022
4:PRINCIPAL CONTROLLER OF EXAMINATIONS
ASSAM PUBLIC SERVICE COMMISSION
JAWAHARNAGAR
KHANAPARA
GUWAHATI-781022
5:ABHILASHA SHARMA
ROLL NO. 10600
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6:MONALISHA AHMED
ROLL NO. 10332
7:RIMJHIM DAS
ROLL NO. 10480
8:NIBEDITA TAMULY
ROLL NO. 10367
9:BINDIYA MAHANTA
ROLL NO. 10091
10:RAJASHREE BHUYAN
ROLL NO. 10460
11:NEELAKSHI DEKA
ROLL NO. 10364
12:FULMONI KALITA
ROLL NO. 10185
13:PRIYANKA GHOSH
ROLL NO. 10443
14:HIMASRI DAS
ROLL NO. 10206
15:JYOTIMALITA ROY
ROLL NO. 10246
16:ANINDITA MALI
ROLL NO. 10031
17:ARJYARITTIK KALITA
ROLL NO. 10055
18:RIMJHIM MAHANTA
ROLL NO. 10481
19:KRISHNA KAMAL KALITA
ROLL NO. 10274
20:SHAHNAJ PARBIN AHMED
ROLL NO. 10532
21:PRIYANKA CHOUDHURY
ROLL NO. 10441
Page No.# 6/32
22:SIMANTA PATGIRI
ROLL NO. 10548
23:GYANDEEP CHOUDHURY
ROLL NO. 10198
24:PINKY SAIKIA
ROLL NO. 10411
25:CHAYANIKA MAZUMDER
ROLL NO. 10119
26:SABERA ISLAM CHOWDHURY
ROLL NO. 10502
27:KAUSHIK PORAN BORDOLOI
ROLL NO.10259
28:BANANI DAS
ROLL NO. 10073
29:JYOTI CHANDA KALITA
ROLL NO 10244
30:CHAYANIKA DAS
ROLL NO. 10118
31:SHARMISTA NATH
ROLL NO. 10540
32:SANGEETA DAS
ROLL NO. 10515
33:SUNITA KALITA
ROLL NO. 10564
34:AKASH MAHANTA
ROLL NO. 10010
35:PARAG SANKAR CHOUDHURY
ROLL NO. 10400
36:PRINCELINA BORA
ROLL NO. 10438
37:PRAKASH BRAHMA
ROLL NO. 10421
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38:MINAKSHI KALITA
ROLL NO. 10323
39:SOUVIK SARMA
ROLL NO. 10555
40:RISHABH SARMAH
ROLL NO. 10484
41:MRINMOY CHOUDHURY
ROLL NO. 10345
42:SUMI ROY
ROLL NO. 10563
43:NIRIBILI RAJBANGSHI
ROLL NO. 10376
44:DEBPRIYO KUMAR DEY
ROLL NO. 10137
45:SHAHNUR RAHMAN
ROLL NO. 10534
46:RAJSEKHAR SAPCOTA
ROLL NO. 10466
47:SOPUN JYOTI BHUYAN
ROLL NO. 10553
48:PANKAJ CHAKRABORTY
ROLL NO. 10396
49:CHANDRAMITA BARMAN
ROLL NO. 10113
50:DIPANKAR PAUL
ROLL NO. 10164
51:DHRUBA JYOTI KONWAR
ROLL NO. 10150
Page No.# 8/32
52:RUPJYOTI DUTTA
ROLL NO. 10499
53:BINITA BARUAH
ROLL NO. 10092
54:MONAMIKA NUNISA
ROLL NO. 10334
55:PARBIN SULTANA SAFIM ALAM
ROLL NO. 10401
56:DHYANJYOTI SARMA
ROLL NO. 10152
57:TANMOY MEDHI
ROLL NO. 10575
58:ARUNIMA KALITA
ROLL NO. 10061
59:SUNITA THAKURIA
ROLL NO. 10565
60:PRANJAL MONI NATH
ROLL NO. 10430
61:PRIYANKA BARMAN
ROLL NO. 10440
62:DR PURANPURNA GOSWAMI
ROLL NO. 10174
63:SHANKURAJ BORAH
ROLL NO. 10538
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64:UPASANA BARUAH
ROLL NO. 10590
65:SAFEEDA SULTANA BEGUM
ROLL NO. 10504
66:UDIPTA BORTHAKUR
ROLL NO. 10589
67:PINKU TALUKDAR
ROLL NO. 10410
68:HEMANTA KUMAR DAS
ROLL NO. 10202
69:CHAHIDUR RAHMAN
ROLL NO. 10105
70:PRERONA PATOWARY
ROLL NO. 10436
71:DEBANGANA CHOUDHURY
ROLL NO. 10132
72:HUSSAIN MAHAMMAD FARHAD
ROLL NO. 10212
73:NITU THENGAL
ROLL NO. 10381
74:MAMTA PATHAK
ROLL NO. 10301
75:BHASKARJYOTI KALITA
ROLL NO. 10083
Page No.# 10/32
76:KANGKAN KALITA
ROLL NO. 10254
77:KULDEEP KALITA
ROLL NO. 10278
78:SAKIL AHMED
ROLL NO. 10506
79:NABANITA THAKURIA
ROLL NO. 10354
80:NANSWITA BORAH
ROLL NO. 10357
81:ARIFA KHATUN
ROLL NO. 10050
82:SANIDUR AHMED
ROLL NO. 10517
83:TULUMONI SEAL
ROLL NO. 10584
84:NIRMALI SARMA
ROLL NO. 10379
85:SIKDER JABIDUR ISLAM
ROLL NO. 10545
86:JEHIRUL ISLAM
ROLL NO.10230
87:PURABI GOGOI
ROLL NO.10448
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88:PALLAB BORAH
ROLL NO.10391
89:NILUTPAL KARMAKAR
ROLL NO. 10372
90:ANJALI DAS
ROLL NO. 10035
91:MAFIDUL ISLAM
ROLL NO. 10297
92:KLINTON PEGU
ROLL NO. 10268
93:MOMOTA KARMAKAR
ROLL NO. 10331
94:W LOMEN SINGH
ROLL NO. 10597
95:DHRITISMITA BORUAH
ROLL NO. 10148
96:UDAY BHASKAR BHARATI
ROLL NO. 10586
97:JONMONI BARUA
ROLL NO. 10236
98:SUJEET CHHETRY
ROLL NO. 10558
99:SANJANA BORA
ROLL NO.10518
Page No.# 12/32
100:RAJ KISHORE GOGOI
ROLL NO. 10458
101:MIGOM MILI
ROLL NO.10321
102:BILIFANG DAIMARY
ROLL NO. 10089
103:ANUSMITA BAISHYA
ROLL NO. 10045
104:SIVASANKAR TAYE
ROLL NO. 10549
105:DIPIKA DEORI
ROLL NO. 10166
106:PRANAB BORO
ROLL NO.10422
107:REEMA TALUKDAR
ROLL NO. 10476
108:RICHA BORKAKOTI
ROLL NO. 10478
109:PRABHAMR SHIL
ROLL NO. 10418
110:MADHURIMA BHAJONI
ROLL NO. 10293
111:HIMASMITA BORAH
ROLL NO. 10205
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112:PANKAJ PRASAD
ROLL NO. 10397
113:PURUSHUTTAM GOGOI
ROLL NO. 10449
114:MAHFUZA BEGUM
ROLL NO. 10298
115:DIMPI KHANIKAR
ROLL NO. 10162
116:POONAM DAS
ROLL NO. 10417
117:SANJUKTA GOHAIN
ROLL NO. 10521
118:MRINMOY JYOTI SENSUA
ROLL NO. 10346
119:LAKSHYA JYOTI KAKATI
ROLL NO. 10286
120:EKRAMUL HOQUE
ROLL NO. 10179
121:ANISUL HAMZA
ROLL NO. 10034
122:RITAM HAZARIKA
ROLL NO. 10486
123:LEOSMITA BURHAGOHAIN
ROLL NO. 10289
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124:DEEPANJALI KALITA
ROLL NO. 10139
125:PUJA MECH
ROLL NO.10446
126:DHRUBA DAS
ROLL NO. 10149
127:KUSHAL RABHA
ROLL NO.10280
128:SUSHMITA BAISHYA
ROLL NO. 10572
129:JAGADISH HAZARIKA
ROLL NO. 10218
130:CHANDRIKA HAZARIKA
ROLL NO. 10116
131:PRERANA DAS
ROLL NO.10435
132:SIDDHANTA KAR
ROLL NO.10544
133:CHOW MANG SENG CHOWPU
ROLL NO. 10124
134:MANASJYOTI THAKURIA
ROLL NO. 10308
135:AJIJUL HOQUE
ROLL NO. 10007
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136:LAKHYAJYOTI SAIKIA
ROLL NO. 10285
137:MINDER TERON
ROLL NO.10324
138:RITU RAJ SAIKIA
ROLL NO. 10488
139:SAMIRAN BORAH
ROLL NO.10510
140:CHINMOY DAS
ROLL NO.10121
141:L DRISTI SINGHA
ROLL NO.10282
142:INZAMUL ALAM
ROLL NO.10215
143:SAAN SWRANG
ROLL NO.10501
144:BANASHREE GOGOI
ROLL NO. 10075
145:MOKIDUR RAHMAN
ROLL NO. 10329
146:RUMI BASUMATARY
ROLL NO. 10496
147:RAJKUMAR MILI
ROLL NO.10464
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148:JOSHUA BORO
ROLL NO.10237
149:KELESON BASUMATARY
ROLL NO. 10261
150:PRANAY TALUKDAR
ROLL NO. 10425
151:JAHNABI DOLEY
ROLL NO.10219
152:MEDINI HAZARIKA
ROLL NO. 10320
153:TRIDIP NARAYAN DAS
ROLL NO. 10581
154:GAUTAM MALAKAR
ROLL NO. 10189
155:RAMAN MAJUMDER
ROLL NO. 10470
156:KANGKAN DEKA
ROLL NO.10253
157:MD JAKIR HUSSAIN
ROLL NO. 10316
158:JAKIR HUSSAIN
ROLL NO.10221
159:BAISHALI DEB
ROLL NO.10071
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160:AMIT RABIDAS
ROLL NO.10023
161:UTTAM RAJKHOWA
ROLL NO. 10593
162:MOKIBUL ISLAM MAZUMDER
ROLL NO.10328
163:ANAMIKA MAZUMDAR
ROLL NO. 10026
164:JENIFA AHMED
ROLL NO. 10231
165:MADHURJYA JYOTI BORAH
ROLL NO. 10295.
RESPONDENT NOS. 5 TO 165 ARE CANDIDATES OF SELECT LIST ISSUED
BY THE APSC FOR APPOINTMENT BY RESPONDENT NO. 1 I.E.
COMMISSIONER SECRETARY TO THE GOVERNMENT OF ASSAM
ANIMAL HUSBANDRY AND VETERINARY DEPARTMENT
DISPUR
GUWAHATI- 781006
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : SC, A.H and V. DEPT.
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
Date of hearing : 09.02.2023.
Date of judgment : 17.02.2023.
JUDGMENT & ORDER (CAV)
Page No.# 18/32
Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. R. M. Deka,
learned counsel appearing for the writ petitioners. Also heard Mr. D. Saikia, learned
Advocate General, Assam assisted by Mr. D. Nath, learned Senior Government
Advocate, Assam appearing for the respondent No.1 and Mr. T. J. Mahanta, learned
senior counsel assisted by Mr. P. P. Dutta, learned counsel appearing for the
respondent Nos.2, 3 and 4. Mr. P. K. Goswami, learned senior counsel assisted by Mr.
B. P. Borah, learned counsel has appeared on behalf of the private respondent Nos.5
to 165.
2. By filing this writ petition the 21 petitioners have approached this Court
challenging the select list dated 23.11.2022 prepared by the Assam Public Service
Commissioner (in short, the APSC) for filling up 162 posts in the category of Veterinary
Officer/ Block Veterinary Officer. The brief facts of the case are that on 22.07.2022,
the Deputy Secretary to the APSC had issued an advertisement notice No.13/2022
inviting applications for filling up 162 vacancies in the category of Veterinary
Officer/Block Veterinary Officer, Class-B, Class-I (Jr. Grade) under the Animal
Husbandry and Veterinary Department by means of direct recruitment. In response to
the advertisement notice dated 22.07.2022, the APSC had received as many as 695
applications out of which, 622 applications were found to be in order. The writ
petitioners herein, besides the selected candidates, were amongst those 622
applicants. In the advertisement notice dated 22.07.2022 it was mentioned that the
selection procedure would be notified later by issuing corrigendum/addendum, if
required and that the Commission will decide the procedure of selection considering
Page No.# 19/32
the status, cadre and grade or the number of applications received for the
advertised posts. Accordingly, notification dated 02.11.2022 was issued by the APSC
notifying the dates of interview. In the notification dated 02.11.2022 the candidates
were also instructed to download their intimation letters from the APSC website. The
notification dated 02.11.2022 had made it clear that the selection process would be
based on interview of the candidates. It was also mentioned that the reject list will be
uploaded on 07.11.2022.
3. After processing the applications, the list of the 622 candidates, whose
applications were accepted, was published whereafter, interview was conducted by
the APSC during the period from 14.11.2022 to 21.11.2022. There is no dispute about
the fact that the writ petitioners herein had also participated in the interview.
Eventually, the select list, containing the names of 162 successful candidates, was
published on 23.11.2022. However, the names of the writ petitioners were not
included in the select list dated 23.11.2022. As such, the present writ petition has been
filed alleging that the selection procedure was dehors the rules and therefore, the
select list dated 23.11.2022 was liable to be interfered with by this Court. By an interim
order dated 29.11.2022 passed in this proceeding, the learned Single Judge had
restrained the authorities from acting on the results published by the APSC on
23.11.2022 consequent to the advertisement notice dated 22.07.2022, as a result of
which, no order of appointment has been issued in favour of the selected candidates
i.e. the private respondents till date.
4. The APSC has conducted the selection as per the provisions of the Assam
Page No.# 20/32
Public Service Commission (Conduct of Business) Procedure, 2019 (for short, the
Procedure of 2019). The Secretary of the APSC has filed affidavit on behalf of the
respondent Nos.2, 3 and 4 stating that Rule 4A of the Procedure of 2019 permits direct
recruitment to be conducted only on the basis of interview. Since the number of post
was 162, which is less than 5 times the total number of applications, hence, the APSC
had followed Rule 4A and invited all eligible candidates to appear in the interview.
Therefore, there is no infirmity in the selection process. In so far as the conduct of the
writ petitioners is concerned, it has been averred in the affidavit that having
participated in the selection process and having taken a chance, the petitioners are
now estopped from questioning the validity of the select list on the ground of
procedural irregularity.
5. A separate affidavit has been filed on behalf of the respondent No.1 i.e. the
Secretary to the Government of Assam, Department of Animal Husbandry and
Veterinary taking a more or less similar stand. In the aforesaid affidavit it has also been
mentioned that as per the provisions of Rule 6(c) of the Assam Animal Husbandry,
Veterinary and Dairying Service Rules, 1988 (for short, the Rules of 1988) read with
Clause 4(A) of the Procedure of 2019, it was permissible for the Commission to
prepare the select list only on the basis of interview without holding a written
examination.
6. Mr. K. N. Choudhury, learned senior counsel appearing for the writ petitioners
has argued that the authorities ought to have conducted the selection as per the
provisions of Rule-4B of the Procedure of 2019 and hold a written test along with
Page No.# 21/32
interview for preparation of the final select list. The same not having been done,
submits Mr. Choudhury, there is apparent irregularity in the selection process having a
vitiating affect on the final select list. According to Mr. Choudhury, since the number
of applicants were more than three times the total number of vacancies, hence, Rule
4A of the Procedure of 2019 would not be applicable in this case. Mr. Choudhury has
further argued that since it is a case of violation of the Rules, the plea of waiver and
estoppels would also not be applicable in the facts and circumstances of the present
case. In support of his above arguments, the learned senior counsel for the petitioners
has relied upon the decision of the Supreme Court rendered in the case of Raj Kumar
and others vs. Shakti Raj and others reported in (1997) 9 SCC 527.
7. Responding to the above, Mr. D. Saikia, learned Advocate General, Assam
submits that the procedure adopted for preparation of the select list is not only
transparent but is also in strict compliance with the requirement of the relevant rules.
Therefore, there is no scope for this Court to interfere with the select list. Mr. Saikia has
further argued that due to operation of the interim order the Department has been
prevented from implementing the various schemes meant for public benefit due to
want of adequate number of officers. As such, this is a fit case for dismissal of the writ
petition.
8. Mr. P. K. Goswami, learned senior counsel appearing for the private
respondent Nos.5 to 165 has argued that the writ petition has been filed by
suppressing material facts and particulars inasmuch as the petitioners have not
disclosed the vital fact that the APSC had duly notified the procedure to be adopted
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in this case which is "interview only" by issuing the notification dated 02.11.2022. Since
the petitioners have approached this Court with unclean hand, no relief in equity can
be granted to them.
9. In so far as merit of the case is concerned, Mr. Goswami submits that the
Procedure of 2019 is very clear and the same confers discretionary power on the
APSC to device the method of selection. Since as per Rule4, interview is a permissible
method for selection of candidates in case of direct recruitment, there is no infirmity
in the select list dated 23.11.2022. Moreover, submits Mr. Goswami, the writ petitioners
having participated in the selection process being fully aware of the procedure that
has been adopted in this case, they would be estopped from turning back and
questioning the method of selection after publication of the select list only because
their names did not find place in the final select list. Mr. Goswami has, therefore,
prayed for dismissal of the writ petition. In support of his above argument, the learned
senior counsel has relied upon the decision of the Supreme Court rendered in the
case of Ashok Kumar and another vs. State of Bihar and others reported in (2017) 4
SCC 357.
10. Mr. T. J. Mahanta, learned senior counsel appearing for the APSC authorities
i.e. respondent Nos.2 to 4 has also argued on similar lines by contending that the
process adopted in this case was as per Rule 4A of the Procedure of 2019. Since, in
case of direct recruitment only oral interview is a permissible mode of selection under
the law, hence, there is no merit in the case of the petitioners. Mr. Mahanta further
submits that the APSC authorities have scrupulously followed the requirement of the
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Rules and therefore, the allegation made in the writ petition are completely baseless.
11. I have considered the submissions made by the learned counsel for the parties
and have also gone through the materials available on record.
12. After hearing the arguments advanced by the contesting parties, what
transpires is that the entire controversy in this case, revolves around the core question
as to whether, the process adopted by the APSC in preparing the select list by
holding "interview only" was a permissible mode of selection under the Rules. The
aforesaid question has to be answered in the context of Rule 4A and 4B of the
Procedure of 2019. Therefore, the aforesaid provisions are reproduced herein below
for ready reference :-
"4. DIRECT RECRUITMENT
A. Only by interview : where there is a provision for selection
only by interview in respect of any post/posts or service/services
considering the status, cadre and grade or where the number of
applications received for the advertised posts is equal to or less than 5
times, the number of vacancies, recruitment for such post/posts or
services/services by the Commission may be operated as follows-
(i) Eligible candidates may be shortlisted as per terms and conditions
or advertisement, if required. Short-listing shall be done as per the
following table-
No. Total number of The number of Where the number of
posts advertised applications received applications are more
including all for which no short- than the number
services (if any) listing is required mentioned in column 3,
then the number of
candidates to be called
for interview after short-
Page No.# 24/32
listing.
(1) (2) (3) (4)
4 4 to 10 Ten times Six times
5 11 to 20 Eight times Five times
6 21 to 50 Six times Four times
7 51 to 100 Five times Three times
The criteria for shot-listing will be decided by the Commission.
(ii) The interview will carry 11 marks.
(iii) In cases where the interview is a direct personality test, marks shall
be allocated as below :
a. 50% on academic/professional qualification/service experience
relevant to the post/preferential qualification/ additional
qualification.
b. 50% for subject knowledge and general bearing, 25% shall be for
subject knowledge and 25% for general bearing.
(iv) In case where the interview forms a part of written assessment test
on a subject relevant to the post and a personality test, marks shall be
allocated as below :
a. 50% marks on the written assessment.
b. 25% on academic professional qualification/ service
experience relevant to the post/professional qualification
/additional qualification.
c. 25% for subject knowledge and general bearing to be
divided equally or as decided by the Commission.
Page No.# 25/32
(v) A consolidated merit list will be prepared on the basis of the
interview scores.
(vi) Final selection will be prepared as per advertised vacancies and
recruitment rules considering relevant reservation criteria from the
consolidated merit list.
B. By written competitive examination and interview :- where there is
a provision of selection by means of written examination and interview
for any post/posts or service/services or where the number of
applications is more than 5 (five) times the number of all advertised
vacancies for the purpose of recruitment for such post(s) by the
Commission through written examination and interview :
(i) Written examination and interview shall be conducted. The written
examination may either be OMR based objective type or conventional
type.
(ii) There will be negative marking in OMR based question papers for
each wrong answer @ 0.25 against each question.
(iii) Candidates 5(five) times the category-wise and sub-category wise
number of advertised vacancies or in the ratio prescribed in recruitment
rules or in the ratio prescribed by the Commission, will be shortlisted for
interview in the order of their merit in the merit list and on the basis of
relevant category and sub-category.
(iv) The list of roll numbers of all the candidates shortlisted for interview
shall be published in the website in increasing order of roll numbers.
(v) The date of interview shall be declared for candidates shortlisted
for interview. Any date can be scheduled for interview after 15 days of
declaration of written examination results being released.
(vi) The total marks for the interview shall not exceed 12.2 percent of
the total marks of written examination.
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(vii) There shall be no qualifying marks for the interview who are
qualified in written test whereby there will be no restriction on candidates
of any category and subcategory to obtain a minimum marks in the
interview.
(viii) The consolidated merit list of candidates shall be prepared on the
basis of written examination and interview scores.
(ix) Final selection list will be prepared as per advertised vacancies
and recruitment rules considering relevant reservation criteria from the
consolidated merit list for recommendation."
13. As noted above, this is a case of direct recruitment and in the advertisement
notice itself, the APSC authorities have provided that the methodology for holding
the selection will be notified later. Accordingly, by issuing the notification dated
02.11.2022 it was notified that the selection process will be conducted on the basis of
"interview". Not only that, even the dates of the interview were notified on 02.11.2022
and the candidates were asked to download their intimation letters from the website.
Therefore, it is apparent that the petitioners were not only aware of the method of
selection but they had also appeared in the interview process without raising any
protest.
14. A plain reading of Rule 4A of the Procedure of 2019 makes it clear that in case
of direct recruitment the select list can be prepared only on the basis of interview. It is
no doubt correct that Rule 4A speaks of short-listing the candidates by following the
ratio indicated therein. However, it is also to be noted herein that the Rules clearly
mention that the criteria for short-listing will be decided by the Commission.
15. By referring to entries made in the 1 st column in the 7th row of Rule 4A(i), Mr.
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Choudhury has argued that the ratio provided by the aforesaid provision is confined
only to cases where the total number of posts is 100 and not beyond. According to
Mr. Choudhury, since the total number of posts was 162, hence, Rule 4A ought not to
have been resorted to by the authorities. Mr. Choudhury submits that Rule 4B would
have been more appropriate in this case. Considering the number of applicants, the
authorities were obliged to hold written competitive examination and interview. I am
afraid, the said submission of Mr. Choudhury cannot be accepted. There is nothing in
Rule 4A to indicate that the number of posts indicated in column (2) of the Table was
exhaustive. Rather, the inclusion of the expression "the criteria for short-listing will be
decided by the Commission" makes it amply evident that if the posts were to be
more than 100 it was open for the Commission to decide on the criteria of short-listing.
The ratio is to be applied for short-listing of candidates but the fact of the matter is
that there has been no short-listing of candidates, whatsoever, in the present case.
Since all the eligible candidates including the writ petitioners were allowed to
participate in the interview process, it is evident that there has been no violation of
Rule 4A in this case.
16. It is no doubt correct that under Rule 4B the APSC would be required to hold a
written competitive examination. However, Rule 4B would be applicable when the
number of applicants is more than 5(five) times the number of advertised vacancies,
which is not the case in hand. It is correct that the number of applicants were more
than 500, but as per Rule 4A, when the number of applicants is equal to or less than
five times the number of vacancies, recruitment to such posts can be made only on
the basis of oral interview. In this case the number of applicants was less than five
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times the number of vacancies.
17. This Court finds that there is no ambiguity in Rules 4A and 4B of the Procedure
of 2019. The Rule 4A, read in the context of Rule 6(c) of the Rules of 1988, which
permits the Commission to make selection by holding test or interview, makes it amply
clear that the procedure adopted by the APSC viz. holding interview only was not in
violation of the applicable Rules. Even if the arguments of Mr. Choudhury is accepted
on the face value, even then, it can at best be said that it was open for the
authorities either to take recourse to Rule 4A or 4B for holding the selection process.
As such, viewed from any angle it cannot be said that the procedure adopted by
the APSC for preparation of the select-list by taking recourse under Rule 4A was
impermissible in the eye of law.
18. By referring to the notification dated 04.12.2021, by means of which, Rules 4B
and 4(D)(v) were amended, Mr. Choudhury has argued that even as per the
amended Rule 4(D)(v), it was incumbent upon the respondents to conduct a written
test since the number of posts were more than 76 and the ratio of candidates called
for interview was more than 1: 3. The aforesaid argument of Mr. Choudhury also
cannot be accepted on account of the fact that Rule 4(D)(v) merely prescribes the
ratio at which candidates are to be short-listed. As noted above, there has been no
short-listing of candidates. Therefore, the ratio prescribed by the Rules for short-listing
of candidates will not have any application in this case. However, even assuming
that the respondents have called for interview candidates beyond the ratio of 1 : 3,
even then, the said fact was well within the knowledge of the petitioners. Therefore,
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the petitioners cannot now turn back and question the said procedure merely
because they were unsuccessful in the selection process. Moreover, as has been
already held, the procedure applicable in this case was as per Rule 4A and not 4(D)
(v) of the Procedure of 2019. In view of the above, this Court is of the considered
opinion that the select list cannot be interfered with on the ground of contraventions
of provisions of Rule 4(D)(v) of the Procedure of 2019.
19. Coming to the next question of estoppel, what is to be noted herein that the
law on this issue has been settled by the Hon'ble Supreme Court in the decision
rendered in the case of Madan Lal and others vs. State of J & K and others reported in
(1995) 3 SCC 486 wherein it was held that if a candidate takes a calculated chance
and appears at the interview, then, only because the result of the interview is not
palatable to him, he cannot turn around and subsequently contend that the process
of interview was unfair or the Selection Committee was not properly constituted.
20. In the case of Chandra Prakash Tiwari and others vs. Shakuntala Shukla and
others reported in (2002) 6 SCC 127 a similar view has been expressed whereby, it has
been held that challenge to a selection process after participating in it without
protest would debar remedy to the candidate against the selection process under
the principles of estoppel.
21. In the case of Amlan Jyoti Borooah vs. State of Assam and others reported in
(2009) 3 SCC 227 it was held that a candidate who had subjected himself to a faulty
selection process could not later on turn around and question the same.
22. Taking note of the decisions rendered by the Supreme Court the law on the
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subject was further enunciated in the case of Ashok Kumar and another (supra)
whereby the Apex Court has made the following observations in paragraphs 12, 13
and 14 :-
"12. The appellants participated in the fresh process of selection. If the
appellants were aggrieved by the decision to hold a fresh process, they did
not espouse their remedy. Instead, they participated in the fresh process of
selection and it was only upon being unsuccessful that they challenged the
result in the writ petition. This was clearly not open to the appellants. The
principle of estoppel would operate.
13. The law on the subject has been crystalized in several decisions of this
Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, this
Court laid down the principle that when a candidate appears at an
examination without objection and is subsequently found to be not successful,
a challenge to the process is precluded. The question of entertaining a petition
challenging an examination would not arise where a candidate has appeared
and participated. He or she cannot subsequently turn around and contend
that the process was unfair or that there was a lacuna therein, merely because
the result is not palatable. In Union of India v. S. Vinodh Kumar, (2007) 8 SCC
100 this Court held that :
"18. It is also well settled that those candidates who had taken part in
the selection process knowing fully well the procedure laid down therein
were not entitled to question the same. (See Munindra Kumar v. Rajiv
Govil, (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service
Commission, (2006) 12 scc 724)."
14. The same view was reiterated in Amlan Jyoti Borroah (supra) where it
was held to be well settled that candidates who have taken part in a selection
process knowing fully well the procedure laid down therein are not entitled to
question it upon being declared to be unsuccessful."
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23. From a careful analysis of the ratio laid down in the aforesaid decisions, what
follows is that the petitioners, having participated in the selection process, without
any protest and being fully aware of the procedure adopted by the APSC, which is
interview only and they being unsuccessful candidates, would be estopped from
turning around and challenging the select list on the ground of procedural irregularity
merely because their names did not find place in the final select list. For the above
reason, no relief whatsoever, can be granted to the writ petitioners in this proceeding,
in respect of the select list dated 23.11.2022.
24. Insofar as the decision in the case of Raj Kumar and others (supra) relied upon
by Mr. Choudhury is concerned, it is to be noted herein that, in that case, the
selection was conducted in total violation of the rules applicable to the post. It is in
the context of such fact situation that the Supreme Court had observed that the
Government had committed glaring illegalities in the procedure and also in the
method of selection. It was held that by ignoring the prescription of the Rule the
selection process itself was taken out from the purview of the SSSB which was the
authority competent to hold the process. On such ground, it was observed that the
principles of estoppel by conduct or acquiescence would not have any application
to facts of that case. After careful reading of the aforesaid judgment, this Court is of
the opinion that the ratio of the decision in the case of Raj Kumar and others (supra)
would not have any bearing in the facts and circumstances of the present case.
25. For the reasons stated herein above, I do not find any merit in the writ petition.
The same is accordingly dismissed. The interim order dated 29.11.2022 stands
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vacated.
Parties to bear their own cost.
JUDGE
T U Choudhury/Sr.P.S.
Comparing Assistant
