WP(C) 5245/2009 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (CAV) This batch of writ petitions arise out of the process initiated for recruitment of 145 Sub-Inspectors, Food & Civil Supplies, Government of Assa m (in short, Sub-Inspector ). WP(C) No.5520/2008 has been filed challenging th e advertisement dated 20th August, 2008, the written test conducted pursuant to the said advertisement and praying for directing the respondent authority not to declare the result of the written test. WP(C) Nos.3207/2009; 3526/2009; 3704/2 009; 3899/2009; 4150/2009; 4319/2009; 5197/2009; 5245/2009; 5820/2009 and WP(C) No.1268/2010 are filed by the candidates, who were not successful in the written test conducted for that purpose, challenging the entire selection process inclu ding the list dated 27th July, 2009 of successful candidates in the written test . In WP(C) No.3526/2009 a further prayer has also been made to direct the respon dent authorities to call those petitioners, who have secured the qualifying mark s in the written test, as fixed by the respondent authorities. WP(C) Nos.3283/20 09; 3327/2009; 3500/2009 and 4259/2010 are filed by the candidates, whose names do not appear in the said list, challenging the result of the written test on on e of the grounds that though some of them have secured more than the cut off mar ks fixed by the respondent authorities for such selection, their names do not ap pear in the said list and were not called for viva-voce test. WP(C) No.95/2010 has been filed by the petitioner praying for a direction to the respondent autho rities to call him for the viva-voce test contending that he has not been called , despite securing the cut off marks fixed for that purpose. In WP(C) No.3824/2 009, the petitioner has challenged the action of the respondent authority in dec laring him as unsuccessful in the written test, on the ground of alleged anomali es in the answer script, though in the list of successful candidates dated 27th July, 2009 his name appeared and he also appeared in the viva-voce test held on 10th August, 2009. WP(C) Nos.2806/2009 and 447/2010 are filed praying for a dire ction to declare the result of the written test held on 28th December, 2008, in respect of Barpeta district and also to publish the list of successful candidate s after completion of the selection process and to appoint accordingly. WP(C) N o.4263/2010 is filed by the petitioner praying for a direction to the respondent authorities to declare the result of the viva-voce test held on 10th August, 20 09 and to publish the select list and also to appoint the selected candidates, p ursuant to the selection process initiated for recruitment of 145 numbers of Sub -Inspector. All these writ petitions being relating to the recruitment to the a foresaid posts, are taken up together for hearing and disposal, as agreed to by the learned counsel for the parties. [2] The facts relevant for the purpose of disposal of the present wr it petitioners may be noticed as under:- (i) The process for direct recruitment of unspecified numbers of Sub -Inspectors was initiated by the Director of Food & Civil Supplies, Government o f Assam (in short, the Director ) initially by issuing 2 (two) advertisements i n the year 1996, under the provisions of Assam (Food & Civil Supplies) Rules, 19 70 (in short, 1970 Rules ). Though a large number of candidates submitted thei r applications for selection and recruitment, the selection process, however, di d not proceed further for the reasons best known to the respondent authorities. Ad-hoc appointments as Sub-Inspector, however, were made, which came to be chal lenged in various writ petitions filed. In the year 2001 as well as 2002, 2 (tw o) other advertisements were also issued by the Director to fill up the vacant p osts of Sub-Inspector. The said process initiated, however, was not completed d ue to various reasons. Pursuant to the said 4 (four) advertisements, more than 76,000 (seventy-six thousand) candidates filed their applications for selection. After disposal of the writ petitions filed challenging the ad-hoc appointments made, another writ petition being WP(C) No.1672/2008 was filed praying for a di rection to fill up the vacant posts of Sub-Inspector on regular basis by complet ing the process of selection initiated by issuing the various advertisements, wh erein an order dated 7th August, 2008 was passed by a single Bench of this Court , on the basis of the affidavit filed by the departmental Secretary, directing h im to issue a fresh advertisement within 30 (thirty) days therefrom and to compl ete the selection process within a period of 9 (nine) months thereafter. It was also directed that in the said advertisement to be issued, all concerned must b e informed that the persons, who have already applied pursuant to the earlier ad vertisements, need not apply and the cases of such persons, who have already app lied and became over aged shall also be dealt with as per the Governments instru ction in force. Thus all the candidates, who applied pursuant to the earlier 4 (four) advertisements apart from the candidates who may apply pursuant to the fr esh advertisement were allowed to participate in the selection process for recru itment as Sub-Inspectors. (ii) The Director pursuant to the said order dated 7th August, 2008 p assed in WP(C) No.1672/2008 issued an advertisement, which was published in a lo cal English daily, namely the Assam Tribune, on 20th August, 2008 to fill up 145 posts of Sub-Inspector, notifying that the persons, who had applied for such po sts pursuant to the earlier 4 (four) advertisements, need not apply again. In th e said advertisement, the reservation to SC/ST(P)/ ST(H) /OBC/MOBC, women and ph ysically handicapped persons have also been indicated. The total marks for such selection was fixed as 200, out of which, 150 marks was allotted for the writte n test and 50 marks for viva-voce test. A large number of candidates, pursuant to the last advertisement, which was published in the local daily on 20th August , 2008, also applied for selection and recruitment to the said posts of Sub-Insp ector. Altogether 1,04,770 number of candidates, pursuant to the aforesaid 5 (f ive) advertisements were in the fray for selection. A written test, thereafter, was conducted on 28th December, 2008 in 255 centres in the State of Assam, in w hich 41,959 number of candidates appeared. The result of the written test was d eclared vide notice dated 27th July, 2009 by the Director, who is the Chairman o f the Selection Committee, which was published in a local daily, namely the Assa m Tribune on 28th July, 2009, notifying the successful candidates and intimating them to appear before the Selection Committee for viva-voce test to be held on 10th August, 2009. (iii) WP(C) No.5520/2008, as indicated above, was filed prior to condu ct of the written test. Other writ petitions, except 3 (three), as noticed abov e, were filed challenging the result of the written test. 3 (three) writ petiti ons, as mentioned above, have been filed for declaration of the result of the wr itten test held on 28th December, 2008 and also the result of the viva-voce test held on 10th August, 2009, apart from praying for a direction to complete the s election process. In WP(C) No.3207/2009, an interim order dated 8th September, 2009 was passed by a Single Bench of this Court restraining the respondent autho rities from making appointment to the posts of Sub-Inspector on the basis of the selection process undertaken. (iv) During the course of hearing of this batch of writ petitions, an order was passed on 10th February, 2011 directing the Director to cause publica tion of the notices in 2 (two) local dailies, 1 (one) in vernacular, i.e. in Ass amese, and another in English published from Guwahati having wide circulation in the State of Assam intimating those candidates, who were selected for viva-voce test, about filing and pendency of the writ petitions, fixing 4th March, 2011 f or their appearance, as all those candidates, who were successful in the written test, were not parties in the writ petitions though the result of such written test is under challenge. Such publications were made in 2 (two) newspapers, name ly, Assam Tribune (English) on 21st February, 2011 and in Asomiya Khabar (Assame se) on 20th February, 2011, pursuant to which a good number of candidates, who w ere selected in the written test, filed applications for their impleadment and a ccordingly they were impleaded as party respondents in the writ petitions, some of whom have also filed affidavits-in-opposition on receipt of the copy of the w rit petition filed. [3] I have heard the learned counsel for the petitioners, the learne d counsel appearing for the State respondents and also the learned counsel appea ring for the private respondents as well as the newly impleaded respondents. [4] Challenging the result of the written test published by the Dire ctor on 27th July, 2009 and their non selection, the learned counsel for the pet itioners, in those writ petitions, where such result is under challenge, has sub mitted that the entire selection process is vitiated (i) because of subsequent i ntroduction of cut off marks as well as change of the marks initially allotted f or viva-voce test, after the result of the written test was declared, thereby ch anging the rules of the games in the midway of the process of selection; (ii) fi xation of different cut off marks for male and female candidates, which amounts to gender discrimination, rendering the process unconstitutional; (iii) non eval uation of the answer scripts properly, as evident from the mistakes found by the Selection Committee in its proceeding dated 23rd July, 2009 and (iv) declaratio n of the result of the written test, on the basis of a sample exercise, namely s crutiny of some of the answer scripts of some of the candidates, who were initia lly found to be selected in the written test, without making such exercise in re spect of other candidates, who appeared in the written test, apart from the grou nd of applications of 30% quota for women under the provisions of the Assam Wome n (Reservation of Vacancies in Services and Posts) Act, 2005 (in short, 2005 Ac t ) as vertical reservation, resulting in a situation of excessive reservation, though the same is required to be worked out as a horizontal reservation. [5] Referring to the last advertisement issued by the Director and p ublished in the newspaper dated 20th August, 2008, it has been submitted by the learned counsel that out of 200 total marks allotted for the purpose of selectio n, 50 marks was allotted for the interview/viva-voce test, thereby stipulating t he criteria for selection, which was subsequently changed by the Selection Commi ttee constituted for that purpose in its proceeding dated 3rd February, 2009, wh erein a decision was taken to conduct the viva-voce test on the basis of 25 mark s, thereby changing the criteria for selection. It has also been submitted that the Selection Committee, in its meeting dated 26th May, 2009, has introduced th e cut off marks to be secured in the written test after declaration of the resul t of the written test on 27th July, 2008, though the same was required to be don e before conduct of such test. It has been submitted that once the process of s election commences, the rules of the selection cannot be changed, as has been do ne in the instant case by the respondents. [6] The learned counsel placing reliance on the proceeding of the Se lection Committee dated 24th June, 2009 has also submitted that different cut of f marks for male and female candidates were fixed in all the categories, namely Gen/SC/ST(P)/ST(H)/OBC/MOBC, by fixing lower cut off marks for the female candid ates than the male candidates, thereby fixing different criteria for the purpose of selection in the written test for male and female candidates, which amounts to gender discrimination, rendering the same unconstitutional, being violative o f the fundamental right guaranteed under Article 15 of the Constitution of India , which prohibits discrimination on the ground of sex. [7] It has also been submitted by the learned counsel that it is app arent from the proceeding of the Selection Committee dated 23rd July, 2009 that the Committee carried out the limited verification of the answer scripts of 1401 candidates, who were found to have secured the cut off marks fixed by the Commi ttee, out of total 41,959 numbers of candidates who appeared in the written test , thereby making scrutiny of the limited answer scripts only. Referring to the s aid proceeding, it has also been submitted that in such limited verification of answer scripts, the Committee having found that there were discrepancies in the marks allotted to certain candidates, ought to have carried out the re-verificat ion exercise in respect of all the answer scripts, so as to rule out any discrep ancies in the marks allotted. The learned counsel further submits that it is al so apparent from the proceeding of the Selection Committee dated 26th May, 2009 that all the members of the Selection Committee were not involved in preparation of centre wise booklets containing the marks secured by the candidates in the w ritten test, which was done by the Chairman of the Committee alone without invol ving the other members. That apart, the committee in the said proceeding dated 26th May, 2009 has arbitrarily fixed the number of candidates to be called for v iva-voce test, as 1260, which is in the ratio of 1:8.67, keeping in view the num ber of vacancies sought to be filled up, i.e. 145, though such ratio normally ou ght to have been around 1:4. The learned counsel, therefore, submits that there was no transparency in the selection process conducted by the Selection Committ ee, which requires interference in exercise of the jurisdiction under Article 22 6 of the Constitution of India. [8] The learned counsel in support of his contention has placed reli ance on the decision of the Apex Court in Anil Kumar Gupta & Ors. -Vs- State of Uttar Pradesh & Ors. reported in (1995) 5 SCC 173; in Rajesh Kumar Daria & Ors. -Vs- Rajasthan Public Service Commission & Ors. reported in (2007) 8 SCC 785; in Hemani Malhotra -Vs- High Court of Delhi reported in (2008) 7 SCC 11 and Divisi on Bench judgments of this Court in Matiur Rahman Bhuyan & Anr. -Vs- State of As sam & Anr. reported in 2002 (1) GLT 316 and in Ratul Kumar Das & Ors. -Vs- Stat of Assam & Ors. reported in 2009 (4) GLT 648. [9] The learned counsel appearing for the petitioners in the writ pe titions, who are amongst 66 (sixty-six) candidates whose names were subsequently deleted from the list of successful candidates in the written test because of t he alleged discrepancy in the total marks recorded in the total marks column o f the answer scripts and in the mark sheets submitted by the examiner, has submi tted that those candidates cannot be held responsible and make liable for such d iscrepancies, if any, the same having been done by the examiners and the candida tes being not at all involved in awarding the marks or in wrong calculation. Ac cording to the learned counsel, before deleting the names of those 66 candidates from such list of successful candidates in the written test, the Selection Comm ittee did not verify the actual marks awarded to those persons and simply becaus e there was discrepancy in recording the total marks in the total marks column and in the mark-sheets submitted by the examiner, the names of those persons we re excluded from the said list, which cannot be done. The learned counsel, ther efore, submits that the respondent authorities may be directed to verify the tot al marks actually secured by those candidates, as has been awarded by the examin er and thereafter, if they secured the cut off marks fixed by the Committee, the y may directed to be called for the viva-voce test, except the candidates who ha ve already appeared in the viva-voce test. [10] The learned counsel for the petitioners in those writ petitions, who have challenged the action on the part of the respondent authorities in not calling them for viva-voce test despite securing the cut off marks fixed for th at purpose, has submitted that they having secured the cut off marks in the writ ten test their names ought to have find place in the list of successful candidat es in such written test. According to the learned counsel, those petitioners hav ing secured the requisite marks, the respondent authorities cannot refuse to cal l them for viva-voce test, as has been done in the instant cases. The learned c ounsel, therefore, submits that necessary direction may be issued to the respond ent authorities to conduct the viva-voce test in respect of those candidates and thereafter, to declare the result of the selection and to make appointments acc ordingly. [11] The learned counsel appearing for the petitioners in WP(C) Nos.2 806/2009; 447/2010 and 4263/2010 have submitted that since the authority has ini tiated the selection process for recruitment to 145 numbers of vacant posts of S ub-Inspector, they are duty bound to complete the process, as initiated, in view of the directions contained in the order dated 7th August, 2008 passed in WP(C) No.1672/2008, whereby and whereunder the authority was directed to complete the selection process within 9 nine months from the date of issuance of the last ad vertisement. The learned counsel, therefore, submits that the said process of se lection may directed to be completed forthwith by publishing the list of candida tes selected for recruitment and by making the consequential appointments. [12] The learned senior counsel appearing for the official respondent s, placing reliance on the averments made in the affidavits-in-opposition filed by the Director, has submitted that the process for selection of candidates to f ill up 145 vacancies of Sub-Inspectors was initiated inconformity with the requi rement of the 1970 Rules, wherein it has clearly been indicated that the reserva tion policy relating to the reservation of vacancies for all the reserved catego ries including the women would be followed. The learned counsel further submits that in view of appearance of large number of candidates in the written test ag ainst 145 vacancies, the Selection Committee had to fix the cut off marks so tha t reasonable numbers of candidates can effectively be interviewed. [13] Relating to the allegation of changing the rules of games by cha nging the marks initially allotted for viva-voce test, it has been submitted by the learned counsel that the Selection Committee in the proceeding dated 3rd Feb ruary, 2009, keeping in view the various pronouncements of the Apex Court and wi th a view to keep the marks allotted for the viva-voce test in the range of 25% of the total marks fixed for written test, had decided to change the marks allot ted for viva-voce test from 50 to 25, as notified in the last advertisement dat ed 20th August, 2008, without, however, changing the marks allotted for the writ ten test, i.e. 150. The learned counsel submits that the unsuccessful candidate s in the written test cannot have any grievance relating to the change of the ma rks allotted for the viva-voce test, the same having not affected such candidate s at all, who were not successful in the written test. The learned counsel furt her submits that all the candidates, who are successful in the written test, wou ld be judged on the basis of 25 marks allotted for viva-voce test. [14] It has also been submitted that the 30% quota fixed for women in terms of the provisions of the 2005 Act was not worked out taking the same as v ertical reservation but as horizontal reservation. However, in terms of the pro visions of 2005 Act, after working out the total number of posts to be kept rese rved for women, those were distributed amongst different reserved categories, li ke SC/ST(P)/ST(H)/OBC/MOBC apart from General category. The learned counsel als o submits that different cut off marks had to be fixed for the male and the fema le candidates, as reflected in the proceeding of the Selection Committee dated 2 4th June, 2009, with a view to fill up the posts reserved for women candidates a gainst 30% quota fixed under the provisions of 2005 Act and, therefore, there is no gender discrimination, as contended by the petitioners. It has also been su bmitted that in the selection process, the provisions of Persons with Disabiliti es (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, relating to the reservation of vacancies for the persons with disabilities, hav e also been scrupulously followed. [15] The learned senior counsel further submits that the answer scrip ts were properly scrutinized by the examiners appointed for that purpose and on the basis of the marks allotted the booklets were prepared by the Chairman as au thorized by the Selection Committee, which was accepted by other members of the Committee. The learned counsel also submits that since there were proper scrut iny of the answer scripts and there is no allegation of bias or malafide against any examiner or the members of the Selection Committee including the Chairman, such process cannot be interfered with on the basis of wild allegation of not pr operly scrutinizing the answer scripts, by contending that had the answer script s been properly scrutinized, the petitioners, who did well in the written test, would have been selected. The learned counsel submits that such a roving enquir y cannot be made by a writ Court to find out the lacuna in the selection process , there being no factual foundation laid by the petitioners in the writ petition s. [16] It has also been submitted that the discrepancies, as noticed by the Selection Committee in the proceeding dated 23rd July, 2009, cannot be the basis for arriving at a conclusion that proper verification of the answer script s was not done by the examiner, more so, when no factual foundation has been lai d by the writ petitioners, in that regard, in the writ petitions. The Selection Committee has re-scrutinized the answer scripts of all the persons, who were fou nd to have secured the cut off marks in the written test and having found certai n discrepancies in respect of 66 candidates, as noticed in the said proceeding, their names were accordingly deleted from the list of successful candidates in t he written test. [17] The learned senior counsel appearing for the State respondents, however, has fairly submitted that it appears from the record that certain candi dates, who secured the cut off marks, were not called for the interview/viva-voc e test by mistake and hence those candidates would now be called for such test. It has also fairly been submitted that the Selection Committee in the proceedin g dated 23rd July, 2009 decided to exclude 66 candidates from the list of succes sful candidates without verify the actual marks secured by them, as awarded by t he examiner, as they were excluded because of the discrepancy relating to the to tal marks recorded in the total marks column and in the mark-sheets submitted by the examiners and as such, the Selection Committee shall undertake the proces s of ascertaining the actual marks secured by those candidates, as awarded by th e examiner and in such process if it is found that they have secured the cut off marks, they would be called for interview/viva-voce test. [18] The learned counsel in support of his