WP(C) 1024/2010 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE C. R. SARMA JUDGMENT & ORDER (oral) (Ranjan Gogoi,J.) Both the writ petitions being inter connected and having raised the same questio n(s) were heard together and are being disposed of by this common order. 2. A unique and somewhat peculiar situation has confronted the Court in the present cases. The writ petitioner in WP(C) No.1024 of 2010, Purabi Majumdar, t he Respondent No.4 therein, Sri Durlov Bora, and the Respondent No.5, Sri Ripunj oy Kakoti (writ petitioner in WP(C) No.3025 of 2010) were candidates in a select ion held by the Assam Public Service Commission for appointment in the Assam Civ il Service and allied cadres. The combined marks (written and interview) secured by the aforesaid three candidates is the same i.e. 907. The writ petitioner, Pu rabi Majumdar, had indicated Assam Civil Service, Assam Police Service, Labour O fficer, Assistant Registrar of Cooperative Societies, Inspector of Labour and In spector of Taxes as the order of preference for service. The Respondent No.4, si milarly, had indicated Assam Civil Service, Assam Police Service, Inspector of E xcise, Inspector of Taxes, Inspector of Labour, Labour Officer and Assistant Reg istrar of Cooperative Societies as his choice of service in order of preference; whereas the Respondent No.5 had indicated Assam Police Service, Assam Civil Ser vice, Labour Officer, Assistant Registrar of Cooperative Societies, Inspector of Labour, Inspector of Taxes, Inspector of Excise as the order of preference. The Public Service Commission in the select list published on 5.2.2010 had placed t he writ petitioner Purabi Majumdar in the select list for appointment in the cad re of Assistant Registrar of Cooperative Societies. The Respondent No.4 was put in the select list for appointment in the cadre of Assam Police Service whereas the Respondent No.5, Sri Ripunjoy Kakoti, was put in the select list of candidat es for appointment in the cadre of Assistant Registrar of Cooperative Societies. Aggrieved and contending that the selection of the Respondent No.4 for appointm ent in the cadre of Assam Police Service and the exclusion of the petitioner fro m the said cadre is not based on any objective criteria the writ petition has be en filed seeking interference with the said selection of the respondent No.4 and for placement of the writ petitioner Purabi Majumdar in the select list of cand idates for the Assam Police Service. The respondent No.5 who had secured the sam e marks has been impleaded as a party respondent possibly for a full and complet e adjudication of the issues raised in the writ petition. The said respondent No .5, in turn, had filed the connected writ petition i.e. WP(C) No.3025 of 2010 se eking a direction for his placement in the list of candidates meant for appointm ent in the Assam Police Service. 3. Admittedly, the Public Service Commission in its Regulations had not lai d down any criteria by which candidates who had opted for the same service and h ad secured the same marks are to be selected in the event there are more candida tes than the posts available. In the absence of any such laid down criteria the Public Service Commission in the present case had placed the Respondent No.4 in the select of APS candidates in preference to the writ petitioner and the Respon dent No.5 by virtue of the earlier Roll No. allotted to him in the examination h eld by the Commission. 4. At the hearing the prevailing practice in different State Public Service Commissions as well as in the Union Public Service Commission in identical situ ations have been laid before the Court. From the norms prevailing in such other bodies it appears that three main principles have been laid down to be followed in a situation similar to the one that has arisen in the present case. The first is selection by virtue of age; the second is a selection by virtue of marks obt ained in the written examination and the third is on the basis of the marks secu red in the compulsory papers and the viva voce test. The arguments made by the l earned counsels for the parties have centered around one or the other of the afo resaid three options. Attempts have been made to show that the particular option favourable to a particular candidate is the best of the three available options . 5. A consideration of the arguments advanced by the learned counsels for th e parties have left the Court satisfied that in the absence of any prior laid do wn criteria application of any of the aforesaid three criteria/principles in a s ituation where results have already been declared would lead to heart burning an d discontent. The ideal situation would be one where there is a criteria in exis tence to be applied to the declared results of a public examination. The situati on, in our view, would be very different where a particular criteria is to be ap plied after the results have already been declared and that too by choosing one of the several options available. We have, therefore, thought it appropriate not to apply any of the aforesaid criteria that have been laid before the Court at the hearing and instead we have deemed it proper to embark upon an exercise of i dentifying whether there could be some other ways and means of resolving the dis putes between the parties, none of whom can be understood to be at fault for the situation that has emerged. 6. In this regard we have noticed that the total number of vacancies for op en category candidates in the Assam Police Service is 14 including 4 posts earma rked for women candidates under the provisions of the Assam Women (Reservation o f Vacancies in Services and Posts) Act, 2005. Out of the first 14 belonging to t he open category who have been selected, 4 candidates so selected are woman. Out of the aforesaid 4 woman candidates the Bench is informed by the learned Govern ment Advocate, Assam, Sri R. Adhikari, and it is not in dispute, that one Smti. Barnali Deka who had secured 913 marks had opted not to join the Assam Police Se rvice. Consequently, in addition to the one post in the Assam Police Service tha t has been directed to be kept vacant by the interim order of the Court dated 04 .03.2010 one further post is presently available. The last of the 14 candidates selected from the open category candidates had secured 907 marks. The petitioner Purabi Majumdar had also secured 907 marks. No other woman candidate securing h igher marks than Purabi Majumdar is before the Court. Consequently, to give effe ct to the provisions of the Women Reservation Act and to fill up the post agains t which Barnali Deka was selected the name of the writ petitioner has to be incl uded in the select list. The Assam Public Service Commission is therefore direct ed to correct the select list dated 5.2.2010 in so far as the Assam Police Servi ce is concerned by including the name of the petitioner Purabi Majumdar. Thereaf ter, appointment will be offered to the writ petitioner Purabi Majumdar in the A ssam Police Service against the slot of Barnali Deka. 7. This will bring the Court to a consideration of who between the Responde nt No.4, Sri Durlov Bora and Respondent No.5, Sri Ripujoy Kakoti, would have a b etter right to be included in the select list against the last i.e. No.14th post earmarked for open category candidates. By the interim order passed in the pres ent cases one post in the Assam Police Service have been directed to be kept vac ant. Naturally, the last of the selected candidates belonging to the open catego ry who happens to be the respondent No.4, Durlov Bora, had not been offered appo intment till date. 8. We have already indicated the difficulties in adopting any of the criter ia that is in vogue in other State Public Service Commissions or in the Union Pu blic Service Commission for selection of candidates opting for the same service and who have secured the same marks. We have already indicated that the Court wi ll make an endeavour to identify any other objective criteria that may be availa ble for the aforesaid purpose. 9. In this connection the Court has noticed that while the Respondent No.4, Durlov Bora had offered Assam Civil Service as his first option and the Assam P olice Service as the second option, the Respondent No.5, Ripunjoy Kakoti, had op ted for the Assam Police Service as his first choice. To our mind the above fact would be relevant for arriving at a decision as to who between the two should be understood to have a better right for appointment in the Assam Police Service . Our answer to the above is that it is the candidate who had offered Assam Poli ce Service as the first choice has to be understood to have a better right to jo in the Assam Police Service in preference to a candidate for whom the said Servi ce was the second choice. Proceeding on the aforesaid basis we are of the view t hat it is the Respondent No.5, Ripunjoy Kakoti, who should be understood to have a better right to be appointed in the Assam Police Service. We, therefore, orde r accordingly. The Assam Public Service Commission will make necessary changes i n the select list dated 5.2.2010 and the State of Assam will take further conseq uential action on that basis. 10. We deem it proper to observe that in passing the above order in the pres ent writ petitions we have taken into account that the appointments on the basis of the select list dated 5.2.2010 had been made in the month of April, 2010 by clearly indicating all such appointments to be subject to the result of the pres ent writ petitions. Furthermore, on the basis of the deliberations that had take n place we are of the view that the necessary training courses undertaken by the selected candidates who had already joined can also be undertaken by the candid ates involved in the present cases if arrangements to that effect are made by th e State Government. The State Government is directed to act accordingly. 11. Sri P. P. Baruah, learned counsel for the Respondent No.4, Sri Durlov Bo ra, has pointed out that the aforesaid candidate had indicated the cadre of Insp ector of Excise to be his 3rd option in order of preference. It is also pointed out that the marks secured by Sri Durlov Bora entitles him to be selected and ap pointed in the cadre of Inspector of Excise. Learned counsel has, therefore, pra yed for a direction to the above effect. 12. Sri Durlov Bora is a respondent in the writ petition. The relief that is being sought proceeds on the basis of an independent claim which the aforesaid person ought to have ventilated or projected as the writ petitioner in a separat e writ petition. As no writ petition has been filed by Durlov Bora claiming the aforesaid relief we do not consider it appropriate to direct any modification of the select list dated 5.2.2010 at the instance of a respondent in the writ peti tion. We, however, leave it open to Sri Bora to ventilate his grievances in this regard before the Assam Public Service Commission which body, as and when appro ached by the concerned candidate i.e. Sri Durlov Bora, will attempt to settle th e grievances raised forthwith and without any delay and thereafter take conseque ntial action as may be due in law. 13. Both the writ petitions i.e. WP(C) Nos.1024/2010 and 3025/2010, therefor e, shall stand disposed of in the above terms.