Gauhati High Court
WP(C)/1680/2019 on 20 August, 2025
GAHC010053462019
2025:GAU-AS:11056
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(C) NO.1680 OF 2019
Sri Atul Chandra Bori,
S/o- Late Gina Ram Bori,
R/o village- Golung Temera Gaon,
Golaghat, Pincode-785611,
District- Golaghat.
.......Petitioner
-Versus-
1. The State of Assam, represented by
the Principal Secretary to the Government
of Assam, Finance Department, Dispur
Guwahati-06.
2. The Commissioner and Secretary,
Department of Finance, Dispur,
Guwahati-06.
3. The Assam Public Service Commission,
represented by the Chairman,
Jawaharnagar, Khanapara, Guwahati-22.
4. The Deputy Secretary, Assam Public
Service Commission, Jawaharnagar,
Khanapara, Guwahati-22.
5. The Principal Controller of Examination,
Assam Public Service Commission,
Jawaharnagar, Khanapara, Guwahati-22.
Page 1 of 31
6. Sri. Sandip Nandi,
S/o- Sri Sashidhar Nandi
Accountant, Jorhat Treasury Office,
Office of Deputy Commissioner's Office,
Jorhat, Pincode-785001, District- Jorhat.
7. Sri Biraj Boruah,
S/o- Not known,
Senior Accounts Assistant, Golaghat
Treasury, Office of the Deputy
Commissioner's Office, Golaghat,
Pincode-785621, District-Golaghat.
8. Sri Mrigen Bora,
S/o- Sri Depai Bora,
Senior Accounts Assistant,
Dergaon Sub-Treasury Office,
Pincode-785614, District- Golaghat.
9. Mr. Boxi Golam Mahammad,
S/o- Md. Khalil,
Senior Accounts Assistant,
Darrang Treasury Office, Darrang,
Pincode-782145, District- Darrang.
.......Respondents
WITH
W.P.(C) NO.1683 OF 2019
Sri Amiya Kumar Saikia,
S/o- Late Jurman Saikia,
R/o- Saru Areng, Howly Mohanpur,
Mangaldai, Pincode-784125, District-
Darrang.
.......Petitioner
-Versus-
1. The State of Assam, represented by
the Principal Secretary to the Government
of Assam, Finance Department, Dispur
Guwahati-06.
2. The Commissioner and Secretary,
Department of Finance, Dispur,
Guwahati-06.
3. The Assam Public Service Commission,
represented by the Chairman,
Jawaharnagar, Khanapara, Guwahati-22.
4. The Deputy Secretary, Assam Public
Service Commission, Jawaharnagar,
Khanapara, Guwahati-22.
5. The Principal Controller of Examination,
Assam Public Service Commission,
Jawaharnagar, Khanapara, Guwahati-22.
6. Sri. Sandip Nandi,
S/o- Sri Sashidhar Nandi
Accountant, Jorhat Treasury Office,
Office of Deputy Commissioner's Office,
Jorhat, Pincode-785001, District- Jorhat.
7. Sri Biraj Boruah,
S/o- Not known,
Senior Accounts Assistant, Golaghat
Treasury, Office of the Deputy
Commissioner's Office, Golaghat,
Pincode-785621, District-Golaghat.
8. Sri Mrigen Bora,
S/o- Sri Depai Bora,
Senior Accounts Assistant,
Dergaon Sub-Treasury Office,
Pincode-785614, District- Golaghat.
9. Mr. Boxi Golam Mahammad,
S/o- Md. Khalil,
Senior Accounts Assistant,
Darrang Treasury Office, Darrang,
Pincode-782145, District- Darrang.
.......Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. K. N. Choudhury, Sr. Advocate,
assisted by Mr. R. Singha, Advocate.
For the Respondent(s) : Mr. P. Nayak, Standing Counsel,
Finance Department.
: Mr. P.P. Dutta, Standing Counsel, APSC.
Date of Hearing : 07.08.2025.
Date of Judgment : 20.08.2025.
JUDGMENT & ORDER (CAV)
Heard Mr. K. N. Choudhury, learned senior
counsel assisted by Mr. R. Singha, learned counsel, appearing
for the petitioners. Also heard Mr. P. Nayak, learned Standing
Counsel, Finance Department, appearing for the respondent
Nos.1 & 2, and Mr. P. P. Dutta, learned standing Counsel,
APSC, for respondent Nos. 3, 4 and 5.
2] By way of the instant two writ petitions filed under
Article 226 of the Constitution of India, the petitioners are
assailing, inter alia, the selection of the private respondents
for promotion to the cadre of the Finance and Accounts
Officer/Treasury Officer (FAO/TO), and the issues raised in
both the writ petitions being identical, the same is taken up
for final disposal by this common judgment & order.
3] The brief facts of the case are that the petitioner in
WP(C) No. 1680/2019 is presently working in the cadre of the
Accountant and posted at the Golaghat district, whereas the
petitioner in WP(C) No.1683/2019 is presently working in the
cadre of the Senior Accounts Assistant and posted at the
Darrang district treasury. Pursuant to an advertisement issued
on 20.02.2018 by the Assam Public Service Commission
(hereinafter referred to as the "respondent APSC"), inviting
applications for promotion for filling up of 34 posts of Finance
and Accounts Officer/Treasury Officer (FAO/TO) in Class-I
Grade-III cadre of the Assam Finance Service from the
members belonging to the cadre of (i) Assam Accounts
Service, (ii) Assam Local Fund Audit Service, & (iii) Assam
Treasury (Estt.) Service Personnel, the petitioners, being
eligible for the subject promotion, applied for the same.
Thereafter, the petitioners appeared in the Departmental
(Promotion) Examination, as held by the respondent APSC,
pursuant to the aforesaid advertisement.
4] It is the specific case of the petitioners that the
respondent authorities selected 9 (nine) candidates, out of
which private respondent nos. 6 to 9, though they were
overaged as per the recruitment rules, had their age relaxed
and were selected illegally. Aggrieved thus, though
representations were filed, the same having borne no fruits;
the present writ petitions have been filed.
5] Mr. K. N. Choudhury, learned senior counsel,
appearing for the petitioners in both the writ petitions,
submits that the overage of the respondent Nos. 6 to 9 was
condoned in violation of the applicable recruitment rules and
the law governing the field. In support of his submission, he
relies upon the decisions of this Court in the case of Pranab
Kumar Deka vs. State of Assam, reported in 2015 (4) GLT
103, and Amarjyoti Sarma vs. State of Assam, reported
in 2018 (3) GLT 172. He further submits that out of the 9
(nine) successfully declared candidates, only 5 (five)
candidates secured a pass mark of 130 in both the papers in
the Departmental (Promotional) Examination, and 4 (four)
candidates who secured 120 marks were further awarded
with grace marks of 10 each. He accordingly submits that
none of the candidates have secured the requisite 80 marks in
each paper, i.e., 160 marks in both the papers as laid out in
the recruitment rules. He further submits that the Finance
Department has most arbitrarily, and to favour the private
respondents has fixed the pass marks at 65 in each paper as
against 80 in violation of the statutory rules. He further
submits that the decision of the respondent APSC to award
the grace marks of 10 to those who secured 120 marks is not
only in violation of the recruitment rules but also reflects the
illegality and wrong committed by the respondent APSC in
exceeding its power to award the said marks. By drawing the
attention of this court to the letter dated 20.03.2019
addressed to the Finance Department, he further submits that
it is evident that none of the 9 (nine) selected candidates
secured the pass marks. He further submits that the Office
Memorandum dated 06.06.1969, whereby the pass mark was
brought down to 65 against the marks so prescribed by the
recruitment rules, is absolutely illegal inasmuch as the law is
well settled that if a field is covered by Article 309, State
authorities cannot invoke Article 162 of the Constitution of
India. In support of the aforesaid decision, he relies upon the
decision of the Apex Court in the case of B.N. Nagarajan
and Ors. vs. State of Karnataka and Ors ., reported in
(1979) 4 SCC 507.
5.1] He further submits that whenever an illegality is
brought to the notice of the court, the court has a duty to
look into it and can interfere with the illegality so permitted by
the authorities concerned in favour of the person who was the
beneficiary of such an illegal act. In support of the aforesaid
decision, he relies upon the decision of the Apex Court in the
case of Dwarka Nath vs. Income Tax Officer, Special
Circle, reported in AIR 1966 SC 81. He further submits that
in the instant case, the private respondents having been
promoted in violation of the law, their appointment is illegal
and warrants interference. In support of the aforesaid
decision, he relies upon the decision of the Apex Court in the
case of Alka Ojha vs. Rajasthan Public Service
Commission, reported in (2011) 9 SCC 438.
5.2] He further submits that the petitioners are aggrieved
because they participated in the said selection process,
wherein an illegality has been committed in the entire
selection process, and hence, there is a gross violation of the
fundamental right of equal opportunity in matters of
employment guaranteed to them under Article 16 of the
Constitution of India, and therefore, the writ petitions are
maintainable at their instances.
5.3] He further submits that the relaxation clause of the
recruitment rules provides relaxation only to such conditions
of service that cause undue hardship, and therefore, there is
no scope of relaxation of the basic qualification for
appointment, i.e., maximum age. In support of the aforesaid
submission, he relies upon the decision of the Apex Court in
the case of Suraj Parkash Gupta and Ors., vs. State of
J&K and Ors., reported in (2000) 7 SCC 561.
6] Per contra, Mr. P. Nayak, learned Standing Counsel,
Finance Department, submits that the Government of Assam,
by issuing Office Memorandum dated 06.06.1969, determined
the minimum pass mark for the Departmental (Promotion)
Examination for recruitment to Class-II of the Assam Finance
Service as 65 marks by amending the minimum pass mark
fixed in the service rules. He accordingly submits that as no
further amendment has been made thereafter and the
minimum pass mark of 65 prevails till date, and that the
petitioners, after appearing in the Departmental (Promotion)
Examination, having failed to obtain the said qualification
marks, i.e., 65, their names did not appear in the select list.
He further submits that the petitioners were fully aware at the
time of appearing in the examination that the government
took a decision to grant age relaxation to the private
respondents to make them eligible to appear in the
examination; however, they never raised any grievance at
that time, and it was only when they did not qualify in the
Departmental (Promotion) Examination that challenges
against the selection of the private respondents on the
ground of improper age relaxation were made for the first
time. He further submits that it is evident from the records
that such relaxation was granted to the private respondents
by the government with due approval from the highest
authority in the department by taking a conscious decision in
terms of Rule 20 of the said recruitment rules. He further
submits that the government notification dated 03.05.1951
empowers the government to grant age relaxation for
recruitment to Civil Services or Civil posts in connection with
the affairs of the State of Assam, and that since the said
recruitment rules do not specifically bar the grant of age
relaxation, the said notification dated 03.05.1951 cannot be
said to be contradictory to the provisions of the said
recruitment rules. In support of the aforesaid decision, he
relies upon the judgment & order dated 21.07.2022 rendered
by this Court in the case of All Assam Accredited
Engineers' Association vs. State of Assam and Ors.,
in WP(C) No. 2839/2020, and the judgment & order dated
02.04.2019 rendered by this Court in the case of Mritunjay
Saikia vs. State of Assam and Ors., in WP(C)
No.7655/2018.
7] Mr. P.P. Dutta, learned Standing Counsel, APSC,
appearing for the respondent, submits that the selection of
the private respondents was as per law and that the
relaxation as regards the overage of the private respondents
was in accordance with the government letter dated
20.06.2018, whereby the approval of the Hon'ble Finance
Minister, Assam, for condoning the age of the private
respondents was communicated. He further submits that the
respondent APSC, after finding out that only a few candidates
could qualify for the written examination, had allotted grace
marks of 10 to those who got a total of 120 marks, and the
same has also been communicated to the concerned
government department vide letter dated 20.03.2019. He
further submits that the respondent APSC, on the basis of the
marks obtained by the candidates, prepared the merit list and
found that only 5 candidates got the pass marks and above
(pass mark being 130) in terms of the Office Memorandum
dated 06.06.1969, which postulates that the minimum pass
mark shall be 65. He further submits that the result was
accordingly placed before the respondent APSC, and the
respondent APSC, in its meeting held on 19.12.2018, decided
to award grace marks and accordingly fixed the benchmark at
120. He further submits that accordingly, the results were
prepared, and finally 9 candidates could be declared to have
passed the said examination. He further submits that the
respondent APSC, by invoking the power as prescribed under
the Assam Public Service Commission (Procedure and Conduct
of Business) Rule, 2010, took a conscious decision in the
aforesaid meeting in the interest of the ongoing selection
process.
8] I have given my prudent consideration to the
arguments advanced by the learned counsels for both the
contending parties and have also carefully perused the
material available on record. I have also considered the case
laws cited at the bar.
9] Apt at the outset to refer to the advertisement dated
20.02.2018, which reads as under: -
"A D V E R T I S E M E N T
The Assam Public Service Commission will hold
a Departmental (Promotion) Examination of the members
belonging to the cadre of (i) Assam Accounts Service, (ii)
Assam Local Fund Audit Service and (iii) Assam
Treasury (Estt.) Service Personnel on the dates to be
notified later on for filling up of 34 (thirty four) posts in
Class I Grade III cadre of the Assam Finance Service
including posts for reserved categories as admissible
under Rules as follows.
(1) Assam Accounts Service - 14 posts
(2) Assam Local Fund Audit Service-14 posts
(3) Supdt./Accountants/Senior
Accounts Asstt. Of Treasuries - 6 posts
Total - 34 posts
The detail break up for reservation of posts are as
shown below.
Sl Name of the OC Reserved for Reserved Reserved for Reserved for Grand Total
No service OBC/ for SC STP STH
. MOBC
1 2 3 4 5 6 7 8 9 10 11 12 13
Total RFW Total RFW Tot RFW Total RFW Total RFW
al
Assam Finance 19 -- -- -- 3 -- 7 -- 5 -- 34 --
Service (in the
cadre of
Finance &
Accounts
Officer/Treasur
y Officer)
(Class I Grade
III) (Through
departmental
examination)
For Departmental Promotion:
1. An Accounts Officer of the Assam Accounts Service,
an Audit Officer of Assam Local Fund Audit Service
and a member of the Assam Treasury (Estt,) Service
(Supdt/Accountant/ Senior Accounts Asstt.) are
eligible to appear in the examination if he/ she has
not crossed the age of 50years on 01-01-2018 and is
a graduate of a recognized university and has
rendered at least 5 years of service in his/her cadre.
A Certificate to the effect that 5 years of service has
been completed is to be issued, by the Appointing
Authority and it must be furnished along with the
application.
2. The application in prescribed form should be sent to
the Secretary, Assam Public Service Commission,
Jawaharnagar, Khanapara, Guwahati-22 on or
before 20-03-2018.
Application must be signed by the candidates
and accompanied by all particulars including
Original Treasury Receipt for Rs 250.00
(Rs150.00 for candidates belonging to
SC/ST/OBC) as Application fee showing the name
of the post and department and also full Head of
Account 'NON TAX REVENUE, OTHER NON TAX
REVENUE 0051 PUBLIC SERVICE COMMISSION
105 STATE PUBLIC SERVICE COMMISSION
EXAMINATION FEE RECEIPT OF THE ASSAM
PUBLIC SERVICE COMMISSION'.
The above fee is not refundable and no other
mode of deposit of fee other than through
Treasury challan shall be accepted.
3. The decision of the Commission as to the eligibility
or otherwise of a candidate for admission to the
examination shall be final.
4. No Travelling Allowances is admissible for the
journeys performed in connection with the above
examination.
5. All correspondences must be addressed to the
Secretary. Assam Public Service Commission.
Jawaharnagar, Khanapara, Guwahati-22.
6. Applications which are not duly signed by the
candidates in the space provided for the purpose will
also be summarily rejected."
10] Reading the aforesaid advertisement, it is apparent
that in order for an applicant to be eligible to appear in the
Departmental (Promotion) Examination for consideration for
the subject post of Finance and Accounts Officer/Treasury
Officer (FAO/TO), the applicant should not cross the age of 50
years as of 01.01.2018.
11] Undisputedly, the said service is governed by the
Assam Financial Service Rules, 1963 (hereinafter referred to
as the "Service Rules, 1963"), which has been framed in
exercise of the power conferred by the proviso to Article 309
of the Constitution of India. Relevant provisions of the
aforesaid Service Rules, 1963, read as under: -
"2. Definition. - In these rules, unless there is anything
repugnant in the subject or context-
(a)"Auditor" means an Auditor of the Local Audit
Department of the Government of Assam;
(b)"Commission" means the Assam Public Service
Commission;
(h)"Member of the Service" means a member of the
Assam Financial Service;
(j)"Service" means the Assam Finance Service;
3. Classes, designation and status.- The service shall
consist of the following classes :
(1) Class I:
(a) Grade I - shall include the posts of the Director of
Accounts, Assam, the Examiner of Local Accounts,
Assam and such other posts as may be included from
time to time by the Governor;
(b) Grade II - shall include the posts of Financial Advisers
to Government and such other posts as may be included
from time to time by the Governor.
The member of this class shall belong to Class I
Government Service.
(2) Class II - shall include the posts of Treasury
Officers, Finance and Accounts Officers and Deputy
Examiner of Local Accounts and such other posts
as may be included from time to time by the
Governor.
The members of this class shall belong to Class II
Government Service.
5. Method of recruitment.-(1)Recruitment to the service
shall be made-
(a) by promotion in accordance with Rules 6 and 7, and
(b) through competitive examination in accordance with
Rule 9.
(2) When sufficient number of candidates are not
available for filling up vacancies reserved for promoted
or direct recruits they may be filed up by candidates of
the other category. The reservation of 50 per cent quota
for promoted or direct recruits shall not be carried
forward.
6. Promotion.- Promotion shall be subject to the
following:
(3) Fifty per cent of the vacancies in a batch to
be filled at a time in Class II cadre shall be by
promotion through Departmental (Promotion)
Examination of members belonging to the
cadres of Divisional Accountants and Auditors:
Provided that the vacancies reserved for the
promotion quota for the Auditors and the
Divisional Accountant shall bear the nearest
ratio as that of the existing number of posts,
permanent as well as temporary, of the two
cadres, at the time of consideration for
promotion. If sufficient number of suitable
candidates belonging either to the cadre of
Auditors or to the cadre of Divisional
Accountants are not available, the vacancies
reserved for one of these categories may be
filled up by the other:
Provided further that a member of the service
shall, for promotion, satisfy the following
conditions:
(a) that a member of Grade II of Class I or
a member of Class II has rendered at
least 4 years of service in the receptive
Grade or Class, as the case may be, on
the first January of the year of
recruitment;
(b) A member belonging to the cadres
Divisional Accountants and Auditors does
not cross the age of 50 years on the first
January of the year in which the
departmental examination under Rule
7(2) is held, and is a graduate of a
university and has rendered at least 5
years of service in his cadre.
20. Relaxation.- Where the Governor is satisfied that
the operation of any of these rules causes undue
hardship in any particular case, he may order to
dispense with or relax the requirement of that rule to
such extent and subject to such conditions as he may
consider necessary for dealing with the case in a just
and equitable manner:
Provided that the case of any person shall be dealt with
in any manner less favourable to him than that provided
by any of these rules."
12] Reading the aforesaid rules, it appears that the
respondent APSC is entrusted to hold departmental
examinations for promotion to Class-II in accordance with
these rules, and the list of the candidates qualified in the said
examination shall be prepared by the respondent APSC in
order of preference and forwarded to the government. It
further appears that the maximum age of eligibility of a
member for such promotion is 50 years as of 1st January of
the year. It further appears that under Rule 20, the power of
relaxation of the operation of any of these rules, if the same
causes undue hardship in any particular case, is provided to
the State Government.
13] Apt also to refer to relevant portion of Schedule-II
under Group-II, of the Service Rules, 1963, which provides as
under: -
"The time allotted for each paper will be 3 hours. The
maximum marks for each paper will be 150 and the
minimum pass marks will be 80 or as may be
determined by Government."
14] Reading the aforesaid, it is clear that the maximum
marks for each paper is 150 and the minimum pass mark is
80 or as may be determined by the government.
15] The issues that fall for determination in the instant
writ petitions are the legality and validity of the age relaxation
granted to the private respondents, reduction of the minimum
pass marks for qualifying for promotion to the subject post,
and grace marks allotted to the private respondents. It
appears from the pleadings as well as the materials placed
before this court that although 34 (thirty four) posts of
Finance and Accounts Officer/Treasury Officer (FAO/TO) were
notified under the advertisement dated 20.02.2018, only 9
(nine) candidates were selected.
16] Apropos that the Government of Assam, by issuing
O.M. No. FEG10/64/111, dated Shillong, the 6 th June, 1969,
determined the minimum pass mark for Departmental
(Promotion) Examination for recruitment to Class-II of the
Assam Finance Service as 65 marks by amending the
minimum pass mark, i.e., 80 as fixed in the Service Rules,
1963. The Office Memorandum dated 06.06.1969, reads as
under:
"OFFICE MEMORANDUM
As per provision made in the last para below
Group I in Schedule II under Rule 7(2) of the Assam
Finance Service Rules, 1963 relating to determination
of pass mark for Departmental (Promotion)
Examination for recruitment to Class II of the Assam
Finance Service, the Governor of Assam is pleased to
determine until further order, that the minimum pass
mark shall be 65.
Sd/- M.C. Das,
Under Secretary to the Govt. of Assam,
Finance (E) Deptt."
17] Reading the aforesaid Office Memorandum, it is
apparent that the minimum pass mark in order to qualify for
the subject post has been reduced from 80 to 65. It is further
apparent that under the subject schedule as extracted
hereinabove, the government has reserved the right and
power to determine the minimum pass marks other than the
prescribed pass mark of 80. Prescribing and reducing
minimum pass marks are within the competence of the
authority conducting the examination, provided it is applied
uniformly and without arbitrariness. In short, fixation of
qualifying standards falls within the domain of the appointing
authority; hence, unless and until the same is arbitrary or
discriminatory, this court in exercise of its extraordinary
jurisdiction would not substitute its views for that of the
appointing authority. In the present case it is established that
the reduction of the minimum pass mark to 65 is in
accordance with the applicable rules. That apart, the
aforesaid Office Memorandum having not been assailed and
there being no further amendment, the minimum pass mark
of 65 to qualify for promotion to the subject post is in force.
Pertinently, such reduction of the minimum pass marks was
also made much prior to the advertisement in question and
was applied uniformly to all candidates. Hence, the same is
neither arbitrary nor discriminatory. Accordingly, the issue of
reduction of pass marks is decided against the petitioner.
18] I cannot also be unmindful of the fact that the
petitioners have not obtained the minimum pass marks. Apt
at this juncture to reproduce the marks obtained by the
petitioners in the subject departmental examination, which
reads as under: -
Sl. Name Paper-I Paper-II Total
No (General (Constitution
Accounts) of India &
Public
Finance)
Bori
(Petitioner in
WP(C)/1680/
2019)
Saikia
(Petitioner in
WP(C)/1683/
2019)
19] It is thus evident that none of the petitioners could
qualify for the said Departmental (Promotion) Examination. It
appears that the petitioners after having failed, raised
grievances against reducing the pass mark of 80 as fixed
under the Service Rules, 1963, by way of the instant writ
petitions. Undoubtedly, once a candidate fails to secure the
prescribed qualifying marks, he or she cannot claim a vested
right to be considered further in the selection process. That
being so, the writ petitioners also do not have the locus standi
to challenge the entire selection process.
20] Returning now to the grievances of the petitioners as
regards age relaxation to the private respondents, it is
pertinent that, as stated above, Rule 20 of the Service Rules,
1963, provides the Governor to relax any of the rules
stipulated under the Service Rules, 1963, if the same causes
undue hardship in any particular case. It is thus established
that the requirement of the upper age of 50 years as
stipulated under sub-rule (4) of Rule 6 in an appropriate case
can be relaxed. The argument of Mr. K. N. Choudhury,
learned senior counsel appearing for the writ petitioner, to the
effect that the eligibility condition cannot be relaxed is
misplaced in the context of the facts of the present case,
inasmuch as under Rule 20 of the Service Rules, 1963, the
government has the power to dispense with or relax the
operation of any of the provisions of the said rules if the same
causes undue hardship in any particular case to such an
extent and subject to such conditions as are considered
necessary for dealing with the case in a just and equitable
manner. Keeping the aforesaid provision of law as stated
above, let me now examine whether the age relaxation
granted to the private respondents is in accordance with Rule
20 of the Service Rules, 1963.
21] It appears from the records as submitted by the
respondent Finance Department, in connection with the
subject promotion, that upon application received from the
private respondents and a few others requesting for
condonation of overage for appearing in the Departmental
(Promotion) Examination in question, the applications were
placed before the Joint Secretary, and thereafter the same
was referred to the respondent APSC for considering the
same in terms of Office Memorandum dated 27.03.1980, read
with Office Memorandum dated 03.05.1951. It appears that
the respondent APSC, upon receiving the aforesaid
applications, rejected the prayer of the private respondents
and other applicants for condoning their age in terms of the
decision of this Court in the case of Pranab Kumar Deka
(supra). It appears from the records that after the rejection of
the application for condonation of age by the respondent
APSC, when the matter was placed before the Secretary
Finance (Establishment B) Department, the Secretary Finance
(Establishment B) Department was of the opinion that the
Office Memorandum dated 27.03.1980 is not applicable.
However, in view of the fact that there are 34 vacant posts of
Class-I Grade-III cadre of AFS and out of the applications
received, only 26 of the applicants are eligible to appear in
the examination, therefore, even if the 6 candidates, who are
overaged are granted age relaxation, the total number of
candidates appearing in the examination would be 32, and
there would still be 2 vacant posts of AFS. Therefore, the
Secretary Finance (Establishment B) Department proposed
that the Finance Department, subject to approval of the
Hon'ble Finance Minister, may condone the overage of the
private respondents and other applicants by invoking Rule 20
of the Service Rules, 1963, in order to make them eligible to
appear in the examination, since between 2011 and 2018, no
departmental examination was conducted. It further appears
that accordingly the Finance Department approved the same.
Thereafter, the matter was placed before the respondent
APSC, who allowed the private respondents and the other
applicants thereof to appear in the examination. It is thus
apparent that the government, having considered that the
prescribed qualifying age is causing undue hardship, relaxed
and dispensed the age limit for being qualified for
appointment to the subject post in order to be just and
equitable.
22] Thus, what transpires from the above is that the
condonation of age has also been uniformly applied to the
candidates in the subject Departmental (Promotion)
Examination in accordance with the applicable rules. Hence,
the same cannot be said to be arbitrary and discriminatory.
That being so, the issue of condonation of age is also
accordingly decided against the writ petitioners.
23] This brings me to the next issue as regards the
allotment of grace marks to four numbers of selected
candidates, i.e., Mrigen Bora (respondent no. 8), Rajib
Barman, Gunajit Medhi and Sanjay Kumar Sharma, by the
respondent APSC.
24] At this juncture, it is apt to look into the returns
submitted by the respondent APSC. Relevant paragraphs of
the affidavit-in-opposition filed by the respondent APSC read
as under:
"5. That, with regard to the statement made in
Paragraphs 4, 5, 6, 7, 8, 9 and 10 of the Writ Petition,
it is replied that in pursuance of the Government of
Assam Finance (Estt-B) Department's requisition vide
letter No. FEB 310/2016/pt/26 dated 29/05/2017
and No. FEB 310/2016/pt/46 dated 24/8/2017 as
well as APSC's letter No. 17 PSC/E-5/2017-18 dated
15/6/2017, APSC published Advt. No. 02/2018 vide
No. 25 PSC/E-15/2017-18 dated 20/2/2018 for
filling up of a total 34 posts in the combined cadre of
Assam Accounts Service-14 (fourteen) nos. of post,
Assam Local Fund Audit Service-14 (fourteen) posts
and Superintendent/Accountants/Sr. Accounts
Assistant of Treasuries- 6 (six) posts respectively. Out
of the 34 (thirty four) posts, 19 posts were earmarked
as Open Category posts, 3 posts were reserved for SC
candidates and 7 (seven) posts were reserved for STP
and 5 (five) posts were reserved for STH candidates.
The upper age limit was prescribed as maximum 50
(fifty) years as on 01/01/2018. The minimum
educational qualification was prescribed to be
graduate of a recognized University and has rendered
at least 5 (five) years of service in his/her cadre.
Thereafter, a select list of 26 (twenty six) nos. of
candidates was notified vide APSC's Notification
No.37 PSC/E-15/2017-18 dated 24/5/2018 along
with a reject list of 15 (fifteen) nos. of candidates was
also notified to vide APSC's Notification No. 38 PSC/E-
15/2017-2018 dated 24/5/2018. Thereafter, the date
of Written Examination was notified to be held on
29/06/2018 vide No. 60 PSC/E-15/2017-18 dated
28/05/2018.
Subsequently vide letter No.FEB.206/2017/54
dated 06/06/2018 the concerned. Government
Department communicated the names of 6 (six) nos. of
candidates for relaxation of over age for appearing in
the Departmental (Promotional) Examination of AFS
(Class-I, Grade-III) sighting reference of Personnel (B)
Department's OM No. ABP.513/79/9 dated
27/3/1980. Thereafter the APSC vide letter No. 77
PSC/F-5/2017-18 dated 15/06/2017 communicated
to the concerned Government Department its inability
to comply with the aforesaid directions regarding age
relaxation in light of the Hon'ble Gauhati High Court in
common Judgment and Order dated 03/08/2015
passed in WP(C) No. 845/2014 (Sri Pranab Kumar
Deka and 36 others- Vs- SOA & 5 ors.) in connection
with age condonation. Subsequent to that the
concerned Government Department vide letter No. FEB
206/2017/104 dated 20/06/2018 again
communicated its willingness to condone the age of
the aforesaid 6 (six) nos. of candidates in light of Rule,
20 of the Assam Financial Service Rules, 1963
bearing approval of the Hon'ble Finance Minister,
Govt. of Assam.
Thereafter, the Commission allowed those 6
nos, of candidates in pursuance of Government letter
dated 20/06/2018 mentioned above who were earlier
rejected to take part in the selection process for the
Departmental Promotional Examination, 2018 for
recruitment to the post of Finance and Accounts
Officer/Treasury Officer (Class-1, Grade-III) under
Finance (Estt-B) Department later on notified by APSC
vide No. 79 PSC/E-15/2017-2018 dated 25/06/2018
Thereafter the written Examination for the post of
FAO/TO (Class-I, Grade-III) was held on 29/06/2018
and the result of the same was declared vide APSC's
Notification No. 24 PSC/CON/R-21/2018-19 dated
21/12/2018 wherein names of 9 nos. of candidates
was also communicated to the concerned Govt.
Department.
6. That, with regard to the statement made in
Paragraphs 11 and 12 of the Writ Petition, it is
replied that as per Schedule-II of the Assam Finance
Service Rules, 1963 it is stipulated that minimum
pass marks at 65 out of 150 total marks in each paper
as per Government in Finance Department's OM No.
FEG.10/64/111 dated 06/06/1969. Therefore, the
matter of preference can be taken into account only
when a candidate qualifies in the said Examination
securing the minimum pass marks. Moreover, the
Commission after finding out that only a few
candidates could qualify the Written Examination had
allotted grace marks of 10 (ten) to those who got a
total of 120 marks. The same has also been
communicated to the concerned Government
PSC/CON/Exam-21/2018-2019 dated 20/03/2019.
So considering the facts that only 9 (nine) of the 32
candidates who appeared in the Examination secured
the minimum marks required for passing, hence only
names of 9 (nine) nos. of candidates were
recommended in order of merit.
Hence, the petitioner's allegation that no
candidates were selected in reserved category is
baseless and void.
Marks obtained by the petitioners are as
follows:
Sl. Name Paper-I Paper-II Total
No.
(General (Constitution
Accounts) of India &
Public
Finance)
Chandra
Bori
Kumar
Saikia
It is pertinent to mention herein that there is no
provision of cut-off marks as per Finance
Department's OM No. FEG.10/64/111 dated
06/06/1996 wherein minimum pass marks in each
paper was fixed at 65 for all categories including the
reserved categories. It is further clarified that, those
who obtained the pass marks as stated above in each
paper were declared qualified in the said
Examination. In this regard the Commission also
written a letter vide letter No. 195PSC/E-15/2017-
2018 Dated 03/05/2019 following a reminder letter
No. 196PSC/E-15/2017-2018 Dated 06/05/2019 to
the Commissioner and Secretary to the Government of
Assam, Finance (Estt-B) Department, Dispur,
Guwahati to clarify the same as the said OM dated
06/06/1996 is not clear about the cut-off marks for
reserved categories (SC/ST/OBC) etc."
25] Thus, the stand of the respondent APSC as regards
the awarding of grace marks to the aforesaid candidates is
that for the 34 posts advertised by the subject advertisement,
only 27 candidates took part in the examination held by the
APSC for consideration for appointment to the subject post.
Out of the aforementioned candidates, only 5 candidates were
found to have gotten the pass marks and above. Upon the
result being placed before the respondent APSC, the
respondent APSC in its meeting held on 19.12.2018 decided
to award grace marks and accordingly fixed the benchmark at
120 (i.e., those who got 120 will get grace marks of 10 to
come out successfully). Thereafter, the aforesaid 4 candidates
who got 120 were awarded grace marks of 10 each, whereby
they came out successfully. Thereafter, the results were
prepared, and finally 9 candidates were declared to have
passed the said examination as per the impugned select list,
which includes the aforesaid 4 candidates with grace marks.
It is the specific stance of the respondent APSC that awarding
grace marks in any examination is an acceptable policy for
marginally failing candidates so as to enable them to pass the
examination. It is the further specific stand of the respondent
APSC that the respondent APSC, by invoking its power as
prescribed under the Assam Public Service Commission
(Procedure and Conduct of Business) Rules, 2010, took a
conscious decision in its meeting dated 19.12.2018 to award
grace marks to the candidates in the subject examination, and
the same was applied uniformly and equally to all.
26] Apt at this juncture to refer also to the relevant
portion of the minutes of the meeting of the respondent APSC
held on 19.12.2018, which reads as hereunder: -
"Item no.4: File no.CON/Exam-21/2018-
2019: Departmental (Promotion)
Examination for recruitment to the cadre
of Assam Finance Service (Class-I, Grade-III)
The PCE apprised the meeting that in the
aforesaid Departmental (Promotion)
Examination, only a few number of candidates
were able to duly pass (pass mark being '130'
out of 300). As narrated to the Commission, the
officers are often hard pressed for time for
adequate preparation for the said Departmental
examination. In view of this, the Commission
discussed the possibility of awarding grace
marks.
It was apprised that although there was
no specific provision for awarding grace marks
in the relevant Service Rules, the Commission,
in terms of precedence, has been awarding
'grace marks' to the candidates enabling them
to come out successful.
After threadbare discussion, the
Commission decided to fix the benchmark at
'120' (i.e., those who got 120 will get grace mark
of 10 to come out successful). The meeting
requested the PCE to take necessary steps
accordingly in this regard."
27] Reading the aforesaid minutes, it is clear that in view
of the fact that only a few candidates were able to obtain the
pass mark of 130 out of 300 and since the officers, as
narrated to the respondent APSC, are often hard-pressed for
time for adequate preparation for the departmental
examination in question, the respondent APSC discussed the
possibility of awarding grace marks. During discussion,
though it was apprised that there was no specific provision for
awarding grace marks in the relevant service rules, the
respondent APSC, in terms of precedence, has been awarding
grace marks to the candidates, enabling them to come out
successful. It is further apparent that after a detailed
discussion, the respondent APSC decided to fix the benchmark
at 120, meaning thereby that those candidates who got 120
marks will get grace marks of 10 in order to bring their marks
to 130, which is the prescribed pass marks. It is thus
apparent that, in view of the aforesaid decision taken by the
respondent APSC, the aforesaid four candidates who had
scored 120 were awarded 10 marks each and thereafter
declared selected in the Departmental (Promotion)
Examination. Undoubtedly, this court, while exercising powers
under Article 226 of the Constitution of India, cannot examine
the decision of the respondent APSC, which is in the realm of
administrative decision; however, can only examine the
manner in which the decision has been taken. It is needless
to emphasize that it is not the function of the writ court to
hear appeals over the decisions of the selection committees
and to embark upon deciding the relative merits of the
candidates. In other words, the decision of the selection
committee/public service commission can be interfered with
only on limited grounds, such as illegality or patent material
irregularity in the constitution of the committee or its
procedure vitiating the selection, or proved mala fides
affecting the selection, etc. Reference in this regard is made
to the decision of the Apex court in the case of Dr. M. C.
Gupta and Ors., vs. Dr. Arun Kumar Gupta and Ors. ,
reported in (1979) 2 SCC 339. Relevant paragraphs of the
aforesaid judgment read as hereunder: -
"7. Before the rival comments are probed and
analysed, it would be necessary to keep in view the
twilight zone of Court's interference in appointment to
posts requiring technical experience made consequent
upon selection by Public Service Commission, aided by
experts in the field, within the framework of
Regulations framed by the Medical Council of India
under Section 33 of the Indian Medical Council Act,
1956, and approved by the Government of India on
June 5, 1971. When selection is made by the
Commission aided and advised by experts having
technical experience and high academic qualifications
in the specialist field, probing teaching/research
experience in technical subjects, the Courts should be
slow to interfere with the opinion expressed by
experts unless there are allegations of mala fides
against them. It would normally be prudent and safe
for the Courts to leave the decision of academic
matters to experts who are more familiar with the
problems they face than the Courts generally can be.
Undoubtedly, even such a body if it were to
contravene rules and regulations binding upon it in
making the selection and recommending the selectees
for appointment, the Court in exercise of extraordinary
jurisdiction to enforce rule of law, may interfere in a
writ petition under Article 226. Even then the Court,
while enforcing the rule of law, should give due weight
to the opinions expressed by the experts and also
show due regard to its recommendations on which the
State Government acted. If the recommendations
made by the body of experts, keeping in view the
relevant rules and regulations, manifest due
consideration of all the relevant factors, the Court
should be very slow to interfere with such
recommendations (see, University of Mysore v. C. D.
Govinda Rao). In a more comparable situation in State
of Bihar v. Dr. Asis Kumar Mukherjee, this Court
observed as under: (SCC p. 611, para 21)
Shri Jagdish Swaroop rightly stressed that once
the right to appoint belonged to Government the
Court could not usurp it merely because it
would have chosen a different person as better
qualified or given a finer gloss or different
construction to the regu-lation on the score of a
set formula that relevant circumstances had
been excluded, irrelevant factors had influenced
and such like grounds familiarly invented by
parties to invoke the extraordinary jurisdiction
under Article 226. True, no speaking order need
be made while appointing a government
servant. Speaking in plaintitudinous terms
these propositions may deserve serious
reflection. The Administration should not be
thwarted in the usual course of making
appointments because somehow it displeases
judicial relish or the Court does not agree with
its estimate of the relative worth of the
candidates. Is there violation of a fundamental
right, illegality or akin error of law which
vitiates the appointment?
8. With these blurred contours of periphery of
jurisdiction under Article 226 to interfere with
selections made by an independent body like Public
Service Commission not attributed any mala fides,
assisted by four experts in the field who presumably
knew what constituted teaching/research experience,
what institutions are treated prestigious enough, in
which teaching/research experience would be treated
Valuable, we may examine the rival contentions."
28] Reading the aforesaid judgment of the Apex Court, it
is clear that when selection is made by the commission, the
courts should be slow to interfere with the opinion expressed
by the experts unless there is an allegation of mala fide
against them.
29] In the present case, it is apparent that neither any
allegation of favoritism or mala fides has been attributed to
the members of the respondent APSC, who has conducted the
selection in question, nor has the same been substantiated. It
is further apparent from the records that the respondent
APSC has taken the decision to award grace marks to the
candidates who had obtained 120 uniformly. It is thus clear
from the above that the award of grace marks was corrective
in nature and applied uniformly. Hence, there appears to be
no discrimination or arbitrariness in the manner in which the
said decision of awarding grace marks was taken. That apart,
it is apparent that since the total number of posts advertised
for the subject promotion was 34, out of which only 9 posts
have been filled up, as out of the 27 candidates who took part
in the subject Departmental (Promotion) Examination, only 9
candidates, including the aforesaid 4 candidates, were
selected; hence 25 posts are still vacant and remain to be
filled. Thus, it is apparent that the decision of the respondent
APSC in awarding grace marks to the aforesaid 4 candidates
is reasoned and justified. It is pertinent that out of the said
four candidates, three candidates who have been selected are
not arrayed as party respondents in the instant writ
proceedings. Be that as it may, the allotment of grace marks
by the respondent APSC in the subject selection is also not
illegal or arbitrary, and hence, the same does not warrant any
interference whatsoever from this court under Article 226 of
the Constitution of India.
30] This brings me to the alternate argument placed by
Mr. K. N. Choudhury, learned senior counsel, appearing for
the petitioners, that since the petitioners belong to ST(P) and
SC category, respectively, they are eligible for promotion to
the subject post in terms of the advertisement dated
20.02.2018, inasmuch as the reserved posts for ST(P) and SC
are still lying vacant. I am unable to appreciate the aforesaid
argument inasmuch as in order for the petitioners to be
considered eligible for promotion under the subject
advertisement against the reserved posts, they have to first
pass/qualify the Departmental (Promotion) Examination.
Admittedly, in the present case the minimum pass marks in
each paper was fixed at 65 for all categories including the
reserved categories, and both the petitioners have failed to
obtain the fixed minimum pass marks in the subject
Departmental (Promotion) Examination. Therefore, the
decision of the Apex Court in the case of Chief General
Manager, Telecom, Kerala Circle, Trivandrum and
another v. G. Renuka and Another, reported in (1997) 2
SCC 158, relied by Mr. K. N. Choudhury, learned senior
counsel, appearing for the petitioners in this regard, is of no
consequence in the context of the facts of the present case.
31] Having thus considered all three grounds urged by
the petitioners and bearing in mind that the petitioners
themselves have not secured the minimum qualifying marks
prescribed, I find no infirmity in the subject selection process
conducted by the respondent APSC. The decisions impugned
are thus in line with the settled principles of law and uniformly
applicable norms. Hence, the writ petitions are devoid of any
merit whatsoever.
32] Accordingly, the writ petitions stands dismissed. No
order as to costs.
33] Return the case records.
JUDGE
Comparing Assistant
