WP(C) 5346/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE B.K.SHARMA Ranjan Gogoi, J The eight petitioners after clearing the preliminary segment of the Comb ined Competitive Examination, 2006 conducted by the Assam Public Service Commiss ion (hereinafter referred to as ’the Commission’) had appeared in the main writt en examination. They have not qualified for the viva-voce test. Aggrieved, this writ petition has been filed seeking appropriate intervention of the Court. It may be noticed at this stage that the Combined Competitive Ex amination, 2006 was held for filling up a total 131 posts in the Assam Civil Ser vice, Class-I (Junior Grade), Assam Police Service (Junior Grade), Labour Office r, Assistant Registrar of Co-operative Societies, Inspector of Labour, Inspector of Taxes and Inspector of Excise. The preliminary examination was held on 18.11 .07 and the result thereof was declared on 30.4.2008. Thereafter, the main exami nation was held on 1.12.2008 and the result published on 7.7.2008. In the meanti me, the interviews have been completed though the select list(s) have not been p ublished due to pendency of the present writ petition. 2. The petitioner No.1 is a candidate belonging to the Other Backwa rd Classes whereas the petitioner No.3 belongs to a Scheduled Caste; the petitio ner No.4 is a candidate belonging to MOBC and the petitioner No.8 belongs to the Scheduled Tribe (H) category. It may be specifically noticed at this stage that the recruitment in question was subject to provisions of the Assam Scheduled Ca stes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 (hereinafter referred to as ’the Reservation Act’) under which the percenta ge of reservation for candidates belonging to the different reserved categories has been specified. The recruitment was also subject to the provisions of the As sam Women (Reservation of Vacancies in Services and Posts) Act, 2005 (hereinafte r referred to as ’the Reservation for Women Act’). 3. The pleadings contained in the writ petition indicate that, acco rding to the petitioners, candidates who had a less meritorious academic record than them have been found qualified for the interview. The evaluation of the ans wer sheets of the main written examination, according to the petitioners, was ar bitrary and mechanical disclosing serious anomalies. The petitioners also conten d that several relatives of functionaries of the Commission have been selected. In this regard, it has been stated in para 9 of the writ petition that one Anit Hari, son of Sri Rakhal Ch. Hari, a member of the Commission and Ms. Chandrima G oswami, daughter of Sri Bharat Ch. Goswami, Deputy Secretary of the Commission had qualified in the written examination. In the aforesaid paragraph of the writ petition details of certain other persons who, according to the petitioners, ar e relatives of ministers and MLAs and, therefore, had been called for the interv iew have also been furnished. 4. The averments made in the writ petition also indicate that the r oll numbers of two candidates who did not clear the preliminary examination have been shown to be successful in the main written examination. Additionally, the petitioners have contended that one Rahul Pratim Das who had qualified for the interview did not have a B.A. Degree on the relevant date i.e. 11.9.2006 (last d ate for submission of applications). Lastly, the petitioners contend that neithe r the Chairman nor any Member of the Commission had subscribed to the oath of se crecy as required under the provisions of the Assam Public Service Commission (A mendment) Regulations, 2005 framed under Article 318 of the Constitution. Conseq uently, it is contended that the Chairman and other Members of the Commission ca nnot be understood to have lawfully entered their respective offices so as to au thorize them to participate in the impugned selection process. 5. The ground taken by the petitioners that the candidate, Rahul Pr atim Das, was not eligible has been so taken by means of an additional affidavit dated 20.1.2009. In the said affidavit, referring to an earlier order of this C ourt dated 6.1.2009 passed in a proceeding registered and numbered as WP(C) No. 5368/2008, the petitioners have contended that notwithstanding the order of the Court, the additional list of candidates qualified for the interview, as publish ed, still include many ineligible candidates and at the same time several eligib le candidates have not been called for the viva-voce test. 6. The respondents have filed an affidavit dated 21.1.2009 wherein it has been stated that the writ petition lacks in material particulars and seek s a roving enquiry in the matter of selection of candidates which is not permiss ible in law. In so far as the sons, daughters and relatives of the functionaries of the Commission and those of certain ministers and MLAs is concerned, the st and of the Commission is that the aforesaid persons have not been made parties t o the writ petition. Besides, it has not been indicated in any precise manner as to how the concerned persons had influenced the decision making process in the present case. In so far as the allegation against Sri Rakhal Hari, Member of the Commission is concerned, the respondents, in the affidavit filed, have stated t hat a notice dated 12.8.2007 was circulated by the Chairman of the Commission as king all concerned to disclose their interest, if any, in the Combined Competiti ve Examination. Pursuant thereto, Sri Rakhal Hari by letter dated 8.12.2008 had informed the Commission that as his son is involved in the said examination he w ould like to dis-associate himself from the process of selection. According to t he respondents, in the written examination held the Members and Officers of the Commission had no role to play as the question papers had been set and evaluati on of the answers done by a set of approved examiners. In so far as Sri Bharat C h. Goswami, Deputy Secretary of the Commission is concerned, it is the stand of the respondents that the aforesaid person was not in any way involved in the exa mination process. As regards the inclusion of the roll numbers of two persons in the list of candidates selected for interview, though they had not qualified in the preliminary examination, the stand of the Commission is that inclusion of t he said two roll numbers is due to an inadvertent error which has been subsequen tly corrected. 7. The respondents have also filed an affidavit to the additional a ffidavit dated 20.1.2009 filed by the petitioners wherein it has been stated tha t the written examination and the selection of candidates for the interview has been done strictly in conformity with the Rules and norms in force and there ha s been no infraction whatsoever in that regard. The respondents have further sta ted that the directions of this Court dated 6.1.2009 passed in WP(C) No. 5368/20 08 have been faithfully complied with by calling ninety three more candidates fo r the interview. Alongwith the said additional affidavit the respondents have en closed a brief note showing the manner in which the selection of candidates of e ach category had been made. The said document has been enclosed as Annexure-3 to the additional affidavit of the Commission. 8. In so far as the issue with regard to oath of secrecy is concern ed, the respondents in the affidavit filed have indicated that the said requirem ent was brought into effect by the provisions of the Amendment Regulations which had come into force on the date of publication in the Gazette i.e. 22.2.2005. T he respondents, in the affidavit filed, have stated that efforts have been made to request the Hon’ble Governor to administer the oath to the Chairman and Membe rs of the Commission and further that the selection in question will not be viti ated merely on account of the failure of the Chairman and the Members of the Com mission to subscribe to the oath prescribed by the Regulations in question. 9. We have heard Sri MK Choudhury, learned senior counsel for the p etitioners and Sri KN Choudhury, learned senior counsel appearing on behalf of t he respondents. 10. The pleadings having been noticed, the arguments advanced may no w be recapitulated. Sri MK Choudhury, learned senior counsel for the petitioners has contended that though the infirmities in the selection process as pleaded, if considered indepe ndently, may not vitiate the selections held, the cumulative effect of the said irregularities indicate that the selections in question had not been conducted f airly. Sri Choudhury has pointed out that though the notice/ advertisement for t he posts was issued on 10th August, 2006 and the Chairman of the Commission had issued a circular dated 12.8.2007 asking the Members and Officers of the Commiss ion to indicate their interest, if any, in the aforesaid selections, Sri Rakhal Hari, Member of the Commission had expressed his disinclination to be associated with the selection process only by means of the letter dated 8.12.2008. The sai d letter has been issued after the result of the written examination was declare d. Relying on a judgment of the Apex Court in R/o Smt. Sayalee Sanjeev Joshi, me mber, Maharashtra Public Service Commission, reported in AIR 2007 SC 2809, Sri Choudhury has submitted that the aforesaid act amount to a mis-conduct on the pa rt of the Member, Sri Rakhal Hari. Continuing, Sri Choudhury has pointed out that the Commission in the affidavit f iled in the earlier writ proceeding i.e. WP(C) No. 5368/2008 had acknowledged th at in the initial list of candidates called for the interview, the female candid ates entitled to be called against the general category posts on the basis of th eir merit were included in the posts reserved for women under the provisions of the Reservation for Women Act. In the said affidavit, it was further stated on b ehalf of the Commission that in the fresh exercise to be done, as undertaken bef ore the Court, the candidates of each category as per their merit alone will be included in the revised list of successful candidates. Yet, it appears from the additional affidavit dated 28.4.2009 filed on behalf of the Commission that cand idates included against OBC/MOBC quota of female candidates under the Reservatio n for Women Act have secured higher marks than female candidates of the general category selected under the provisions of the aforesaid Act. The same is the pos ition with regard to female ST(H) candidates. Sri Choudhury has submitted that t he aforesaid facts clearly indicate that in preparing the list of female candida tes against the quota reserved for different categories under the Reservation fo r Women Act, candidates belonging to the OBC, MOBC and ST(H) categories, though had secured higher marks then the general category female candidates, have been included against the quota earmarked for the reserved categories and not in the list of general category female candidates. Sri Choudhury has also submitted th at the aforesaid anomaly is bound to give rise to consequential irregularities i .e. inclusion of ineligible candidates in the list of female candidates belongin g to the general category as well as exclusion of eligible candidates from the l ist of male and female candidates belonging to OBC, MOBC and ST(H) categories un der the Reservation Act of 1978. According to the learned counsel, the aforesaid issue, notwithstanding the fact that no female candidate is before the Court, s hould be gone into by the Court as the exercise of jurisdiction under Article 22 6 is in the domain of public law and gross illegalities/ irregularities having c ome to the notice of the Court, the same should not be ignored. 11. In so far as the oath of secrecy prescribed by the Regulations i s concerned, Sri Choudhury has submitted that in the present case it is an admit ted fact that neither the Chairman nor any of the Members of the Commission had taken oath as required by the Regulations. Sri Choudhury has relied on a decisi on of the Apex Court in Ramchandra Keshav Adke (Dead) by Lrs. -vs- Govind Joti Chavare & Ors. reported in AIR 1975 SC 915 (Para 25) to contend that the Regula tions having prescribed taking of oath of secrecy, the said provisions must be s crupulously followed so as to confer legitimacy to the assumption of office by t he Chairman and the Members of the Commission. A decision of the Allahabad High Court reported in AIR 1965 ALLAHABAD 97 (Shabbir -vs- State›) has also been reli ed upon by Sri Choudhury to contend that taking of oath is mandatory and in the absence thereof, it cannot be understood that the Chairman and the Members of th e Commission had entered office lawfully so as to enable them to exercise the po wers and functions vested in the respective offices including such exercise in c onnection with the presently impugned selections. 12. Controverting the submissions advanced on behalf of the petition ers, Sri KN Choudhury, learned senior counsel appearing for the respondents has contended that the allegations levelled against the impugned selection process a re vague, ambiguous and the same lack in material particulars. A bald statement that the selection process was arbitrary; that the answer papers were scrutinize d mechanically and that the some of the selected candidates were sons and daught ers of Members and Officers of the Commission or related to Ministers/ MLAs and other VIPs will not be adequate for the Court to enter into any kind of meaning ful enquiry in the matter. Sri Choudhury, in particular, has drawn the attenti on of the Court to the affidavit dated 21.2.2009 as well as the additional affid avits dated 16.3.2009 and 28.4.2009 filed by the respondents. Sri Choudhury ha s contended that in the present case, Sri Rakhal Hari, Member of the Commission had dis-associated himself with the process of selection once his son was found to have qualified for the interview and the Deputy Secretary of the Commission S ri Bharat Ch. Goswami, who has now retired, was not associated with the written examination at all. According to the learned counsel, the written examination wa s conducted by an approved team of examiners who had set the question papers and had evaluated the answer scripts. The Members and Officers of the Commission ha d no role to play in this regard. 13. In so far as taking of oath is concerned, Sri Choudhury has argu ed that the said requirement is not a mandatory requirement, inasmuch as, the re quirement of oath has been prescribed not by the Constitution but by the Regula tions framed under Article 318 of the Constitution. Sri Choudhury has pointed ou t Article 318 of the Constitution empowers the framing of Regulations to lay dow n the conditions of service of the Members of the Commission. As to in what circ umstances the provisions embodied in a statute or in any subordinate legislation are to be construed as mandatory or directory, reliance has been placed by Sri Choudhury on three decisions of the Apex court i.e. State of Uttar Pradesh and Ors. -vs- Babu Ram Upadhya reported in AIR 1961 SC 751 (Para 29); Virji Ram Suta ria -vs- Nathalal Premji Bhanvadia & Ors. reported in AIR 1970 SC 765 and Renu Bisoi & Ors. -vs- Gour Chandra Pradhan & Ors. reported in (1999) 6 SCC 6. 14. In so far as the selection of female candidates belonging to the general category and those belonging to the OBC, MOBC and ST(H) under the provi sions of the Reservation of Women Act, 2005 is concerned, Sri Choudhury has dra wn the attention of the Court to the second proviso to Section 4 of the aforesai d Act to contend that after the female candidates belonging to the different res erved categories are identified for conferment of the benefit of reservation und er the Reservation of Women Act, the remaining posts would be available to the f emale candidates of unreserved category only. Sri Choudhury, therefore, has subm itted that out of the 31 posts available for being filled up by female candidate s under the provisions of the Reservation of Women Act, 15 posts were earmarked for being filled up by female candidates of different reserved categories accord ing to the percentage of reservation allowable. The remaining 16 posts under the second proviso to Section 4 of the Reservation of Women Act were, therefore, re quired to be filled up by women of unreserved category only. Sri Choudhury has argued that no discernible illegality or irregularity has affe cted the selections which should, therefore, be left undisturbed by the Court. 15. As the purport and effect of the aforesaid proviso may have to b e dealt with in details by the Court in the course of the discussions that may f ollow, it will be appropriate to quote hereinbelow the provisions of Section 4 o f the Reservation of Women Act, which read as follows :- 4. Reservation for women in vacancies to be filled up by direct recruitment-At the commencement of this Act, 30 percent of the vacancies in respect of all appo intments to be services and posts in the establishment which are to be filled up by direct recruitment shall be reserved for the women candidates: Provided that the aforesaid reservation shall be inclusive of the reservation pr ovided statutorily or otherwise of the Scheduled Castes, Scheduled Tribes (Plain s), Scheduled Tribes (Hills), Other Backward Classes, More Other Backward Classe s and persons with disabilities within the respective reserved category : Provided further that 30 percent reservation of the vacancies in respect of the Women for the remaining unreserved Category of candidates shall be available to the Women of unreserved category only. 16. The better academic record claimed by the petitioners cannot be a valid ground for the Court to entertain any doubt with regard to the validity of the impugned selection, inasmuch as, the performance of the candidates was ju dged separately in a preliminary examination followed by the main examination. T he allegation of mechanical and whimsical scrutiny of answerscripts of the writt en examination, being without any supporting materials and/or particulars, canno t legitimately pursuade the Court to order for a probe into the said issue. The Court cannot invoke its jurisdiction on the basis of bald and omnibus allegation s as any scrutiny on the basis of such allegations would amount to a roving/ fis hing enquiry which is not permissible in law. If the petitioners legitimately wa nted a further investigation in the matter of scrutiny of the answerscripts of t he main written examination, it was incumbent on their part to furnish some part iculars to prima facie satisfy the Court that scrutiny of the answer scripts had not been reasonably satisfactory. Similarly, merely because some of the selecte d candidates happened to be related to the Members or Officers of the Commission or political functionaries of the State, the same by itself, will not be a suff icient ground for the Court to hold the said selections to be vitiated. A son/ d aughter or a relative of any Member or Officer of the Commission or a political functionary is as much entitled to take part in the selection for any public pos t as any other candidate and unless there are materials to indicate that the sel ection of such candidate is on account of any unfair advantage gained by him/her or that the particular office has been abused or misused to ensure selection of the candidate concerned, interference of the Court will not be justified. In th e present case, no such materials are forthcoming. In so far as the candidature of Sri Anit Kumar Hari, son of Sri Rakhal Ch. Hari, Member of the Public Service Commission is concerned, no material has been forthcoming to show that the sele ction of the aforesaid candidate has been made by misuse of the office held by S ri Rakhal Ch. Hari. In so far as the reliance placed by the learned counsel for the petitioners on the decision of the Apex Court in Smt. Sayalee Sanjeev Joshi (supra) is concerned, in the aforesaid case the Apex Court was considering the q uestion as to whether the concerned Member of the Public Service Commission had committed mis-conduct by not declaring that her daughter was a candidate in an e xamination conducted by the Commission. The said question was dealt with by the Court even though the daughter of the Member of the Commission did not finally p articipate in the selection. The Apex Court, therefore, did not and, in fact, co uld not have considered the validity of the selection which is the issue that co nfronts the Court in the present case. Whether misconduct had been committed by Sri Rakhal Ch. Hari is not an issue in the present case. The authority cited, t herefore, would not be relevant to the present case. In the face of the uncontro verted statements made in the affidavit filed by the respondents that the Member s and Officers of the Commission had no effective role in the conduct of the wri tten examination which was entrusted to a panel of approved examiners and, in th e absence of any material whatsoever to show that any undue favour was shown to Sri Anit Kr. Hari because of his relationship with Sri Rakhal Ch. Hari, Member o f the Public Service Commission, the Court is unable to hold that the selection of the aforesaid candidate for the viva-voce test is in any way vitiated in law . 17. The grievance of the petitioners with regard to inclusion of two roll numbers in the list of candidates declared successful for the viva-voce te st i.e Roll Nos. 22455 and 38692 has already been attended by the Commission by issuing the necessary corrigendum and, therefore, the said aspect of the matter will not require any further orders of the Court. 18. In so far as the allegation that Sri Rahul Pratim Das (Roll No. 28220), though not eligible (he having acquired the B.A. Degree after the last d ate for submission of applications), had been included in the list of candidates to be called for the interview is concerned, the Court has noticed that in none of the affidavits filed by the respondents the said position has been disputed or even clarified. In the absence of any denial by the respondents, the Court wi ll have to accept the claim made by the petitioners in this regard. However, the aforesaid Sri Rahul Pratim Das is not a respondent in the present case. In such circumstances, the Court is of the view that it would be appropriate to direct the Public Service Commission to take necessary corrective steps with regard to the candidature of Sri Rahul Pratim Das (Roll No. 28220), as may be required in law after due verification of the relevant facts. 19. This will bring the Court to a consideration of the consequences of the Chairman and the Members of the Commission not subscribing to the oath a s required under the provisions of the Assam Public Service Commission (Amendmen t) Regulations, 2005. Article 318 of the Constitution authorizes the Governor of a State to make Regulations to determine the number of Members of the Commissio n and their conditions of service. In exercise of the said powers the Assam Publ ic Service Commission Regulations, 1951 had been framed which have been amended by the Amendment Regulations, 2005, inter alia, incorporating Regulation 4(vi) i n the principal Regulation. Regulation 4(vi) of the Amendment Regulations, 2005 reads as follows: 4.(vi)The Governor of Assam or his nominee shall administer the oath of Secrec y to the Chairman and Members before entering upon their office according to the following