WP(C) 166/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI JUDGMENT & ORDER (ORAL) The challenge in the present writ petitions, which were heard an alogously, is in respect of the selection and proposed appointments of the Respo ndents 5 to 84 in W.P.(C) No. 1892/2008 in the post of Physical Instructor in th e Higher Secondary/ High Schools of the State. A narration of the facts of WP(C) No. 166/2008 will be sufficient to notice the facts involved in all the writ pe titions as the pleadings and the grounds of challenge are more or less similar i n all the cases. 2. The posts in question were advertised in all leading newspapers of the State on 28th January,2007. The number of vacancies proposed to be filled up were not specifically mentioned though the advertisement issued contained de tailed stipulations with regard to the conditions of eligibility and the format in which the selection was proposed to be held. Two hundred fifty applications w ere received pursuant to the advertisement issued. After scrutiny, two hundred s ix call letters were issued. In all, one hundred eighty six candidates appeared. Candidates (e.g. the respondent No.4) who had become qualified after the advert isement was issued but before the date of selection were also allowed to take pa rt in the selection. The written test was originally scheduled to be held on 14. 7.2007 which was subsequently shifted to 22.7.2007. However, the physical aptitu de test was held as per schedule on 15 and 16th July, 2007. A Selection Committee consisting of the Director, Sports & Youth Welfare, Govt. of Assam; the Deputy Secretary, Sports & Youth Welfare Departmen t, Govt. of Assam; and the Deputy Director and Assistant Director, Sports & Yout h Welfare Directorate was constituted. The Selection Committee, in turn, constit uted another body to conduct the physical aptitude test. The interview was held by the members of the Selection Committee. In the meeting of the Selection Commi ttee that was held on 21.5.2007 i.e. prior to the date of the written examinatio n, it was resolved that the written test will be of 100 marks, the physical apti tude test of 40 marks and the viva-voce segment will have 10 marks. However, in the same meeting dated 21.5.2007 it was resolved by the Selection Committee tha t the marks secured by each candidate in each of the three tests will be convert ed to percentage marks ( i.e. out of 100) and that the sum total of the three pe rcentages will be taken as the actual marks secured. . On completion of the selection process, a select list consisting of eighty names was prepared. However, the same was not published. Instead, the list of the selected candidates was sent to the concerned authority for police verification. It is at this stage that the writ petitions were filed challenging the selections made and the appointments proposed on that basis. 3. The pleadings contained in the writ petitions, broadly, are to t he effect that the respondent No.4, and some other selected candidates did not s atisfy the eligibility criteria on the date when they had submitted their applic ation in response to the advertisement issued. It is alleged by the petitioners that the respondent Nos. 5 to 8 did not participate in the physical aptitude tes t at all or their performance in the said test was not up to the mark; yet, they were selected. The writ petitioners have further averred that the conduct of th e written examination was marred by serious irregularities and there was a free exchange of questions and answers over the mobile phones of the candidates. The petitioners state and aver that their performance in all segments of the selecti on had been excellent and, therefore, they deserve to find a place in the select list. It is on the aforesaid broad basis that the challenge in the writ petitio ns have been made. 4. An affidavit dated 5.2.2008 was filed on behalf of the responden ts denying the allegations made in the writ petition and asserting that the sele ctions held were conducted in a free and fair manner and merit alone was the cri teria in making the selections in question. In the said affidavit filed by the D irector, Sports & Youth Welfare, it was specifically stated that a total of 150 marks, with the sub divisions already noticed, were earmarked for the selection and further that each segment of the selection was conducted under the supervisi on of the duly constituted committees, the compositions of which were mentioned in the affidavit filed. 5. Taking note of the stand taken by the respondents in the affidav it filed, by order dated 6.2.2008, the Court required the respondents to make av ailable the answer scripts of the selected candidates; the proceedings of the Co mmittee constituted to hold the physical aptitude test along with the marks secu red by each candidate as well as the proceedings of the Interview Board along wi th the marks secured by the candidates. This was done only to verify the broad o utlines of the decision making process involved in the present case. Further inf ormation was also sought by the Court with regard to the stand taken by the peti tioners that persons who were not eligible on the date of the advertisement were also considered for selection. 6. Acting pursuant to the order of the Court, a set of written ins tructions dated 14.2.2008 (marked with the letter ’X’ ) were placed before the Court, as received by the learned Govt. Advocate from the Director of Sports & Y outh Welfare. Furnishing the documents required to be placed before the Court, t he Director had conveyed the further information that some persons who were not eligible on the date of the advertisement or the date of submission of applicati ons, but had became eligible before the selections were held were also issued ca ll letters and allowed to take part in the selection. 7. On 28.2.2008, when the matter was posted for consideration, the Court had a cursory look at some of the answer scripts that were made available only for the purpose of the limited satisfaction that the totalling of the marks awarded by the examiner is correct. No scrutiny of any other kind was contempla ted. However, some discrepancies having been found in the totalling of the marks of some candidates, the Court, by its order dated 28.2.2008, directed the Direc tor of Sports & Youth Welfare to have the total marks secured by each candidate re-totalled and place the outcome thereof before the Court. Pursuant thereto, an other set of written instructions dated 10.3.2008(marked with the letter ’Y’) we re placed before the Court by the Director admitting that discrepancies have bee n found in respect of the computation/totalling of the marks in respect of as ma ny as twenty four candidates. 8. The above fact made it necessary for the Court to examine the an swer scripts in a more detailed manner. On completion of the said exercise, the Court found the marks of eight candidates to have been tempered with by attempts to erase the marks originally given and by substitution of fresh marks. In resp ect of forty four other candidates, it was found that in respect of Question No. 3 against which a total of 4 marks were allotted against 8 sub-questions with ‰ marks each, the examiner had awarded 1 mark for each right answer against the ‰ mark allotted. Subsequently, the excess mark awarded was deleted but the total m arks secured by the candidates were maintained by awarding that many excess mark s against the Essay. In respect of twenty eight of the answer scripts examined b y the Court no discrepancies were found. All the answer scripts examined by the Court were of the successful candidates. The Roll numbers of the candidates whos e answer scripts were scrutinized by the Court are recorded in the order of the Court dated 13.3.2008, by which order, the Court had also issued notice to Sri D hruba Hazarika, Sri P.K. Baruah, Sri R.P. Baruah and Sri J.N. Barchetia who were the members of the Selection Committee as constituted. The said notice was issu ed to the aforesaid officers to explain the situation and also to furnish explan ation as to why, if required, criminal prosecution should not be directed to be initiated against them. By the order dated 13.3.2008, the Court also directed th e select list to be published in the newspapers as in the event the anomalies/ir regularities detected were to have a vitiating affect, the selections would be r equired to be interfered with by the Court. 9. Pursuant to the aforesaid order dated 13.3.2008 passed by the Co urt, the four officers in question have filed their separate affidavits. In so f ar as two officers i.e. Sri R.P. Baruah and Sri J.N. Barchetia are concerned, th e aforesaid persons, in their affidavits filed, dis-claim any role in the matter of examination of the answer scripts which apparently was done by Sri Dhruba Ha zarika and Sri P.K.Bora (wrongly mentioned as P.K.Baruah in the order dated 13.3 .2008). In the affidavit of Sri Dhruba Hazarika and Sri P.K.Bora, it has been st ated that the said officers had conducted the examination and selection of the k ind involved in the present cases for the first time in their service career and that the mistakes, if any, may have been occasioned by their lack of experience and exposure. In so far as Sri Dhruba Hazarika is concerned, the said officer i n the affidavit filed has stated that it is difficult for him to comprehend the reasons as to why over writing in the marks were made by him in so far as the ca ndidate bearing Roll No. 131 is concerned. In respect of the forty four candidat es who were initially awarded 1 marks each but were subsequently given ‰ mark an d the excess already awarded in the abve manner were added to the marks awarded against the essay, explanations have been offered by Sri Hazarika that the first part of the exercise was a bonafide mistake on his part and the second part i.e . award of excess marks against the essay was to maintain the total marks alread y awarded. In so far as Sri P.K.Bora is concerned, the explanations offered by h im regarding the change of marks in respect of the candidates bearing Roll Nos. 003, 006, 012, 021, 022, 048 and 085, is that such change of marks is the result of re-evaluation/ re-appreciation of the answers given by the candidates. The s aid officer has also contended that such change of marks was an exercise carried out almost simultaneously with the initial award of marks. 10. It will now be necessary for the Court to notice that seeking va cation/ modification/ alteration of the order dated 13.3.2008, Mr. P.K. Bora and Sri Dhruba Hazarika, as applicants, had filed a Misc. case before this Court be ing Misc. Case No. 898/2008. While the details of the said Misc. application nee d not detain the Court, what would be required to be noticed is the relief sough t therein i.e. for modification of the order dated 13.3.2008 passed by the Court for publication of the select list of successful candidates. What must also be noticed herein is the following statement which appears in paragraph 3 of Misc. Case No. 898/2008 : That the findings and opinion expressed by this Hon’ble Court in the order dat ed 13.3.2008 indeed reveals the mistakes that had occurred in most of the answer scripts placed before the Hon’ble Court. The applicants have also realized tha t mistakes in the awad of marks have taken place and the Select List so prepared does not reflecta a correct picutre vis-à-vis the merit of the candidates appea ring in the written test. The Select List in question has not yet been published . Respectfully stated, the publication of the Select List without first rectifyi ng the mistakes would cause further complications. As such, the applicants pray that this Hon’ble Court would please allow the applicants to re-do the exercise and/or re-evaluate all the answer scripts so that a correct assessment is made o n the inter-se merit of the candidates and a Select List prepared accordingly an d in order that the corrected position can be placed before the Hon’ble Court fo r further orders. . 11. The recitation of the facts that will be required for an effecti ve adjudication of the issues involved in the writ petitions being complete, the Court may now turn to the arguments advanced on behalf of the parties. 12. Mr. AS Choudhury, learned senior counsel for the writ petitioner in WP(C) No. 166/08, who had offered the lead argument, contends that the findi ngs recorded by the Court in the order dated 13.3.2008 and the facts stated in p ara 3 of Misc. Cae No. 898/2008 amply vindicates the pleaded case of the writ p etitioners that the selection held is vitiated by serious lapses and irregularit ies going to the root of the matter. Marks have been tempered with and the same have been increased or decreased to suit particular candidates. Excess marks hav e been awarded to as many as forty four selected candidates in the Essay without there being any justification and only to maintain the total marks that were in itially awarded. Mr. Choudhury has also argued that candidates like the responde nt No.4 have been allowed to participate in the selection, though they were not qualified on the date of the advertisement. On the aforesaid broad basis, the le arned counsel for the petitioners has submitted that interference of the Court i n the facts of the present cases would be wholly justified. 13. Mr. N Dutta, learned senior counsel who has offered the lead arg ument on behalf of the selected candidates, has submitted that the anomalies not iced by the Court, as recorded in the order dated 13.3.2008, will necessarily ha ve to be probed further to determine whether such anomalies had actually affecte d the selection process and if so, the extent thereof. Mr. Dutta has submitted t hat in the event such anomalies are found by the Court to have affected the core of the selections, three options are open to the Court. The first is to have th e answer scripts of the written examination re-evaluated and the marks freshly a warded added to the total marks against the physical test and the interview in r espect of which there is little or no complaint. The second option, according to Mr. Dutta, would be to have the written segment of the selection re-done and th e marks secured by the candidates added in similar manner to those already secur ed by the candidates in the other two segments. The third option, according to M r. Dutta, learned senior counsel, is to cancel the entire selection and issue a fresh advertisement for the posts in question. The said third option, according to Mr. Dutta, should be avoided in the present case as only one segment of the s election i.e. the written test has been affected. 14. Unconnected to the merits of the dispute, Mr. P.K. Goswami, lear ned senior counsel appearing for Sri Dhruba Hazarika and Sri P.K. Bora has submi tted that the anomalies in the marks awarded, as noticed by the Court in the ord er dated 13.3.2008, is the result of a serious error of judgment on the part of Sri Dhruba Hazarika and Sri P.K.Bora who had evaluated the answer scripts of the written examination. Mr. Goswami has contended that in the facts of the present cases, no ill motive or intention to help one or more candidates or to cause ha rm to any particular candidate can be attributed to the aforesaid persons. They were not well versed with the duties of an examiner and it was for the first tim e in their service career that the two persons were called upon to evaluate answ er scripts. Consequently, mistakes had crept in. Such mistakes, being without an y ill intention or ill motive, may be suitably condoned by the Court. 15. The arguments advanced by the learned counsels for all the parti es have received the most anxious consideration of the Court. Interference with the selection of a large number of candidates ought to be made by the Court only after reaching the highest degree of satisfaction that the selections if allowe d to remain on record will amount to a travesty of justice. Any doubt in the mat ter has to go in favour of the selected candidates. Even if the selections are f ound to be marred by gross irregularities an attempt must be made by the Court t o identify and separate the good part of the selection from the bad and salvage the acceptable part. Only in a situation where severance is not possible the Cou rt will proceed to nullify the selection as a whole. 16. This is precisely why inspite of the statements made in paragrap h 3 of Misc. Case No. 898/2008, wherein the members of the Selection Committee h ad virtually agreed that the conduct of the written test was vitiated by gross i rregularities and why despite the submission of Mr. N Dutta, learned senior coun sel for the selected candidates, as already noticed, the Court had thought it fi t to impose upon itself the responsibility of making a detailed scrutiny of the answer scripts of all the candidates and the result of the selection as a whole i.e. in all the three segments and the cumulative effect threof. Such an exercis e had become indispensable in the present case on account of the facts and event s that had confronted the Court. The task also appeared to be possible because t he required scrutiny had to be confined only to one hundred eighty six candidate s. The Court had, accordingly, called for the answer scripts of all the candidat es who had appeared in the selection. The said answer scripts have been duly per used by the Court along with the cumulative result of the selection as made avai lable. 17. A consideration of the pleadings of the parties and the oral arg uments offered indicates the written test/ examination to be the only area of se rious complaint. No grievance of any substantial kind has been made with regard to the conduct of the other two segments of the selection. Nor any irregularity has been noticed by the Court in this regard. 18. In so far as the written test is concerned the anomalies found c an be categorised under 4(four) broad heads. Firstly, there appears to be wrong computation of the total marks secured by twenty four candidates in the written test. Secondly, in respect of seven candidates bearing Roll Nos. 003, 006, 012, 021, 022, 048 and 085, whose answer scripts were evaluated by Sri P.K. Bora, the Court has found that the initial marks awarded have been erased and subsequentl y fresh marks have been awarded. The fresh marks awarded in some cases are in ex cess of the original marks whereas in some other cases it is less than the origi nal marks. In respect of the answer script of the candidate bearing Roll No. 131 examined by Sri Dhruba Hazarika, the total marks awarded after deduction of the excess ‰ marks given against the Question No.3 was 23. Subsequently, as against 5 marks secured against the Essay, the examiner Sri Dhruba Hazarika has awarded 28 marks, raising the total from 23 to 46. Thirdly, in respect of forty four candidates, initially 1 mark f or each sub-question of Question No.3 against the ‰ mark allotted was awarded by the examiner, Sri Dhruba Hazarika. Subsequently, the excess marks ( ‰ against e ach sub-question) awarded was deleted and corresponding number of marks that wer e deleted were added against the Essay marks maintaining the total marks secured by the candidates. The fourth anomaly that has been noticed by the Court is that though 100 marks were awarded for the written test, 40 mar ks for the physical aptitude test and 10 marks for the interview, i.e. a total o f 150 marks, in the actual working of the marks secured by a candidate, the mark s against each segment secured by the candidates was converted to percentage i.e . out of 100 and the average of the three percentages was calculated to determin e the result of the candidates. The effect of the above is that against the tota l 150 marks which was to be awarded for the selection, 100 marks was awarded for each segment raising the total to 300 marks. 19. The question that will be required to be answered is whether the aforesaid anomalies or any of them have the affect of vitiating the selections to such an extent that the Court is left with no alternative but cause interfere nce with the same. 20. In so far as the totalling of the marks of the twenty four candi dates is concerned, the re-totalling of the marks by the Director by giving the benefit denied or taking away the benefit wrongly given, as may be, makes it cle ar that the discrepancies in question did not have any effect on the final selec tions made. This is because, the correct marks as determined by the Director doe s not have the effect of making any unselected candidated entitled to selection. 21. In so far as excess/ less marks given by Sri P.K. Bora after era sing the original marks awarded is concerned, on due consideration, the Court h as found that in respect of the candidate bearing Roll No. 021, the marks origin ally awarded was 36. The marks subsequently allowed, upon alteration, was 46. Th e excess 10 marks were awarded against the Essay. Having scrutinized the answer script of the aforesaid candidate, the Court finds no ground whatsoever for the grant of the excess 10 marks. By virtue of the excess 10 marks granted the candi date in question secured a total of 164 marks, which made him eligible to be sel ected. A scrutiny of the compilation of the marks of the candidates, as made ava ilable to the Court, would go to show that there is a candidate with Roll No. 04 2 who secured 39 marks in the written test and a total of 160 marks. If the mark s awarded to the candidate with Roll No. 021 is to be maintained at 36, the tota l marks secured by the said candidate comes down to 154, in which event, the can didate with Roll No. 042 becomes eligible for selection. On the said facts, the Court is of the view that the selection of the candidate with Roll No. 021 shoul d receive the Court’s interference. The said selection, therefore, is being set aside. 22. The Court would hasten to add that it is aware that in reaching the above conclusion there has been a departure from the restraints that the Cou rt normally exercises in evaluating the merits of a selection for appointments i n public office. Restraints in the contours of the jurisdiction of the higher ju diciary that are normally visualised and expceted are always self imposed. The s heer number of job seekers who apply for the handful of posts that may be availa ble and the absence of adequate ’judicial tools’ to judge the inter-se merit of the candidates are amongst the primary reasons for the judicial reluctance to el iminate inaccessible areas of scrutiny. However, in the