WA 127/2009 BEFORE HON’BLE MR. JUSTICE A.K.GOEL HON’BLE MR. JUSTICE AMITAVA ROY Amitava Roy, J The appellant is aggrieved by the judgment and order dated 8.4.2 009 rendered in WP(C) No. 2906/2008 setting aside his appointment to the post of Lower Division Assistant (for short, hereinafter referred to as ’LDA’) in the o ffice of the Executive Engineer, Water Resource Department, North Lakhimpur. The annulment was as a consequence of a challenge to the selection process by the r espondent No.7 herein. The appellant was arrayed as respondent No. 7 in the writ proceeding. 2. We have heard Mr RC Saikia, learned counsel for the appellant; M r B Goswami, learned Standing Counsel, Water Resource Department, Govt. of Assam ; Mr PS Deka, learned State counsel and Mr M Bhuyan, learned counsel for the res pondent No.7. 3. The process of filling up the aforementioned post was initiated pursuant to the Office Order bearing Memo No. A/10(C)/05-06/621-26 dated 27.2.20 08 of the Executive Engineer, North Lakhmpur Water Resource Division, North Lakh impur. A four member Selection Committee was also constituted thereby to adminis ter the selection which was to be on the basis of a written test, viva-voce and typewriting test. The post was reserved for the Scheduled Tribe (P) candidates o nly. In this connection, the Executive Engineer, North Lakhimpur Water Resource Division, North Lakhimpur as the Member-Secretary of the Selection Committee req uested the District Employment Officer, Lakhimpur to send the names and particul ars of 20 candidates for the post. On receipt of the list of such candidates as requested, call letters were issued to them including the parties in the fray fi xing 18.5.2008 for written test etc. The call letter inter alia mentioned that t he written test would comprise of General English, General Knowledge and Mathema tics for 50 marks with the duration of 1 ‰ hours. The written test was to be fo llowed by interview and typewriting test. 4. In course of the written test it transpired that the same was fo r 100 marks instead of 50 marks as indicated in the call letter. However, on the completion of the written test, on the very same day, viva-voce as well as type writing test was held. The results of the selection were also announced on the s ame day and the appellant was shown to have been selected for appointment. 5. Situated thus, the respondent No.7 in the above factual backdrop initiated the writ proceeding assailing the selection process and the resultant appointment of the appellant inter alia on the ground that the same had been co nducted in violation of the prescribed guidelines and was in reality a sham exer cise in order to favour the appellant on extraneous considerations. That the wri tten test was held for 100 marks instead of 50 marks and that the model of the q uestion paper demonstrated total non-application of mind for securing the appoin tment of the appellant herein was also underlined. 6. This Court while issuing notice by the order dated 28.5.2008, in the interim, observed that any appointment on the basis of the impugned selecti on would be subject to further orders. Contending that in view of the above obse rvation, he though appointed meanwhile tentatively, the same had not been regula rized, the appellant filed an application seeking modification and/or vacation o f the order dated 28.5.2008. In the said interim application registered as M.C. No. 3493/2008, the appellant pleaded the validity of the selection process and u rged that as on a comparative assessment of the performance of the participating candidates he had been appointed having been adjudged to be the best, no interf erence as sought for therewith was warranted. 7. The respondent No.5 in the writ proceeding i.e. the Executive En gineer, North Lakhimpur Water Resource Division, North Lakhimpur in his counter did not dispute that in terms of the decision taken by the Selection Committee t he written test was to be held for 50 marks with a duration of 1 ‰ hours. The an swering respondent stated that as per the decision of the Selection Committee th e question paper was drawn up by Ms. Binapani Deuri, SDO(C), North Lakhmpur as t he representative of the jurisdictional Deputy Commissioner and that she on the date of the test arrived at the examination hall with the question papers and di stributed the same to the candidates herself. The deponent further averred that the members of the Committee were not aware that the question paper was set for 100 marks as this disclosure had not been made to them at any earlier point of t ime. The answering respondent, however, pleaded that the test was held without a ny hassle and that on an overall assessment of the performance of the candidates , 10 in number, the writ petitioner (respondent No.7 herein) was placed at seria l No. 3. That the present appellant had topped the panel of the three candidates selected by the Committee was not disputed by the answering respondent. 8. The learned Single Judge on the basis of the pleadings available , the official records laid on behalf of the Department as well as the arguments advanced, interfered with the impugned selection process and the appointment of the appellant and directed that a fresh selection process be conducted in accor dance with law to fill up the post. In arriving at this conclusion, the learned Single Judge took note of the letter dated 8.5.2008 of the departmental Minister as available in the official records whereby the appointment of the appellant t o the post had been recommended. He was also of the view that the manner in whic h the question paper for the written test was prepared indicated non-application of mind and absence of a bonafide attempt to evaluate the relative merit of the candidates. The participation of Ms. Binapani Deuri, SDO(C), North Lakhimpupr i n the selection process, though not a member of the Selection Committee and her failure to file any counter in the writ proceeding also weighed with the learned Single Judge in concluding that the selection process was not fair or transpare nt. 9. Ms. Binapani Deuri, SDO(C), North Lakhimpur though had been impl eaded in the writ proceeding as respondent No.8, did not file her pleadings sepa rately. She, however, has done so in the instant appeal. Therein she has asserte d ignorance of any letter allegedly written by the departmental Minister recomme nding appointment of the appellant to the post involved. She has reiterated that the appellant on the basis of his performance in the written test, viva voce an d typewriting test had been adjudged to be the best amongst the competing candid ates and was, thus, placed at serial No.1. 10. Mr Saikia has emphatically argued that the appellant having been selected solely on the basis of his superior performance in the selection proce ss, interference therewith has been patently illegal. According to him, the sele ction process was not informed by any extraneous consideration and that the lett er of the departmental Minister stated to be available in the official records i s a forged document. This plea is substantiated by want of response of the depar tmental Minister arrayed as respondent No.9 in the instant appeal to the process of this Court, he maintained. As admittedly the appellant had been adjudged to be the best amongst the participating candidates and the writ petitioner/ respon dent No.7 had not claimed to have faired better than him, the learned Single Jud ge had fallen in error in nullifying the selection process and his (appellant) a ppointment, he urged. To reinforce his argument, Mr Saikia has placed reliance o n the decision of the Apex Court in The Chancellor & Anr. -vs- Dr. Bijayananda K ar & Ors., (1994) 1 SCC 169 and of this Court in Mandira Das Sarma -vs- State of Assam & Ors., (2011) 1 NEJ 72. 11. Mr Goswami, learned Standing Counsel, Water Resources Department on being queried by this Court, however, has affirmed the existence of a letter dated 8.5.2008 of the departmental Minister recommending appointment of the app ellant to the post involved. 12. Mr Deka appearing for the respondent No.8, Ms Binapani Deui, SDO (C), North Lakhimpur, however, has reiterated her stand as noticed hereinabove. 13. Mr Bhuyan for the respondent No.7 has insistently argued that as rightly held by the learned Single Judge, the selection process is afflicted by unwarranted intervention of the departmental Minister rallying behind the appel lant for his appointment. This, Mr Bhuyan has maintained, is apparent from the l etter dated 8.5.2008 which is a part of the official records. Without prejudice to this, the learned counsel has further argued that as is evident on the face o f the records, the written test was held for 100 marks in departure from the dec ision taken by the Selection Committee to conduct it for 50 marks. Moreover, the pattern and contents of the question papers made it wholly impracticable to be answered within 1 ‰ hours as was originally scheduled for a test of 50 marks. Th e overzealous role of the respondent No.8, Ms Binapani Deuri, SDO(C), North Lakh impur in preparing the question paper for 100 marks without any authority by kee ping the members of the Selection Committee uninformed thereof and of distributi ng the same by herself obviously demonstrates impertinent considerations in favo ur of the appellant to secure his appointment by all means, he urged. As the lea rned Single Judge has rendered his decision on a due consideration of all releva nt aspects having a bearing on the issue raised, Mr Bhuyan has submitted that no interference with the impugned judgment and order is called for. 14. The pleaded facts and the rival contentions based thereon have b een duly taken note of. The sequence of events pertaining to the selection since after the constitution of the Selection Committee on 27.2.2008 is not in disput e. That the written test, a component of the selection process, was to be of 50 marks with duration of 1 ‰ hours as decided by the Selection Committee is a matt er of record. It is undisputed that eventually the written examination was condu cted for 100 marks on the basis of the question paper drawn by Ms Binapani Deuri , SDO(C), North Lakhimpur claiming to be the representative of the Deputy Commis sioner, Lakhimpur. Admittedly, however, she was not a member of the Selection Co mmittee. The norm prescribed by the Selection Committee that the written test wo uld be held for 50 marks with a duration of 1 ‰ hours could be departed from onl y by it and none else. The SDO(C), North Lakhimpur of her own drew up a question paper for the said test for 100 marks, however, retaining the time therefor. It is not the case of the official respondents that this deviation was either with the knowledge of the Selection Committee or ratified thereafter by it. 15. It is apparent from the affidavit-in-opposition of the Executive Engineer, Water Resource Division, North Lakhimpur that this digression was not approved by the Selection Committee and, as a matter of fact, was not known to it. In our view, the SDO(C), North Lakhimpur had no authority to modify the norm in this regard otherwise stipulated by the Selection Committee. The fact that t he participating candidates did not abandon the test raising objection thereto c annot cure this vice. 16. There is no denial of the fact that a letter dated 8.5.2008 of t he Minister, Parliamentary Affairs and Water Resource Department, Assam had been received by the office of the Executive Engineer, Water Resource Division, Nort h Lakhimpur recommending appointment of the appellant to the post involved. In t he said letter not only his serial number was indicated, a request was also made to the effect that he be appointed as a special case. None of the official resp ondents in their affidavits has denied either the receipt of this letter or the existence thereof. The endorsement on the body of the letter indicates that the same was received by the office of the Executive Engineer, Water Resource Divis ion, North Lakhimpur on 9.5.2008. Noticeably, this was before the written test, typewriting test and viva-voce held on 18.5.2008. That all the segments of the s election had been traversed and the results thereof were declared on the same da y also cannot go unnoticed. 17. The appellant’s plea that this letter is a forged document is to o far fetched to generate persuasion. There is no material on record to even inf er that this letter had been planted subsequently to mar the appellant’s prospec ts in the selection. Such an inference would, thus, be highly speculative and il logical. The impact of this letter, having regard to its author and the date of receipt thereof, in the facts and circumstances of the case, cannot be ignored. In the above factual premise, the placement of the appellant at the top of the l ist of the competing candidates is not of any determinative significance. 18. The decision of the Apex Court in the Chancellor & Anr. -vs- Dr. Bijayananda Kar & Ors. (supra) is clearly distinguishable on facts. Therein aft er the completion of the selection process for appointment to the post of Profes sor of Philosophy in Utkal University, Bhubaneswar, Orissa, three members of the Selection Committee had addressed two letters to the Vice Chancellor of the Uni versity conveying that the selected candidate did not possess the requisite qual ification. The selected candidate was still appointed. The respondent No.1 unsuc cessfully made a representation before the Chancellor of the University without, however, mentioning about the two letters and, thereafter, instituted a writ pe tition challenging the appointment of the selected candidate. In the writ petiti on also the respondent omitted to mention about the two letters addressed by the three members of the Selection Committee to the Vice Chancellor. These letters, however, were produced in course of the arguments. Eventually, the selection wa s set aside. The Hon’ble Apex Court interfered with this determination noticing inter alia the fact that the respondent had not mentioned about these two letter s in his representation before the Vice Chancellor of the University as well as in his writ petition. The same analogy, in our view, cannot be drawn to the fact s of the present case. 19. It is unlikely that the writ petitioner/ respondent No.7 was awa re of the letter of the departmental Minister at all relevant times and particul arly at the time of institution of the writ petition. His omission to mention ab out the same in his pleadings at that point of time, thus, cannot non-suit him o n this ground. The decision of this Court in Mandira Das Sarma (supra) is also o f no avail to the appellant. It is no longer res integra that a candidate par ticipating in a selection process is not debarred thereafter to question the val idity thereof if the same suffers from apparent illegalities rendering it non-es t. The plea of estoppel against the writ petitioner/ respondent No.7, thus, does not appeal to us. 20. The views recorded by the learned Single Judge are based on the disclosures from the records and are by no means implausible and cannot be repud iated as unfounded. In the exercise of our writ appellate jurisdiction, we find no good and convincing reason to interfere therewith. 21. The appeal lacks in merit and is dismissed. No costs.