WP(C) 3220/2010 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) THE CHALLENGE The challenge in this writ petition is the selection of the resp ondent No, 4 for the post of Assistant Director (Yoga) under the Sports & Youth Welfare Department, Government of Assam. The selection was conducted by the Assa m Public Service Commission (APSC) pursuant to the advertisement bearing No. 3/2 09 dated 12.5.2009. The selection was conducted on 4.3.2010. THE ADVERTISEMENT 2. Annexure-V to the writ petition is the advertisement. Since the whole co ntroversy centers around the said advertisement with the allegation that the res pondent No. 4 lacked the prescribed qualification in yoga and thus could not hav e been called for the selection, for a ready reference the same is quoted below: ASSAM PUBLIC SERVICE COMMISSION Advt. No. 03/2009 NO. 253 PSC/DR 5/1/2000-2001, dated Guwahati, the 12th May, 2009 1 (One) POST OF ASSISTANT DIRECTOR (YOGA) UNDER SPORTS & YOUTH WELFARE DEPARTMEN T (Un reserved) SCALE OF PAY: Rs. 4120/- to Rs. 9725/- P.M. plus other allowances as admissible under the rules. AGE: 21 yrs to 38 yrs. As on 01.01.2009. The upper age limit is relaxable by 5 y ears in case of SC/ST candidates. EDUCATIONAL QUALIFICATION: A candidate must be a Degree holder in either Arts/Sc ience/Commerce from a recognized University and must have a Degree or Diploma in Yoga from a Government/University Grants Commission recognized Physical Educati on Institute. CASE OF THE WRIT PETITIONER 3. While referring to the aforesaid advertisement and the response shown by way of offering candidature, the petitioner has questioned the very acceptance of the candidature of the respondent No. 4 on the ground of not being qualified and eligible to offer candidature in terms of the said advertisement. According to the petitioner, the respondent No. 4, while responding to the advertisement a nd submitting application for the post of Assistant Director (Yoga) had only sub mitted a certificate of three months certificate course in Yoga and that too fro m unrecognized University of Maharastra under the name and style of Shree Hanuma n Vyayam Prasarak Mandal’s Yoga Nisargopachar Kendra, Amravati. According to the petitioner, this three months course certificate did not conform to the require ment of degree or diploma in Yoga from a Government/UGC recognized Physical Educ ation Institute. 4. So far as the qualifications of petitioner is concerned, he is BA with M ajor in Political Science and has completed 15 months Yoga Diploma course from U machal Yoga Mahavidyalaya. According to him, the said Mahavidyalaya is a Governm ent recognized Yoga Institute and more than 25 diploma holders of the said Insti tute have been appointed by the Government of Assam in its various departments o n regular basis. The petitioner has also undergone three years Yoga Therapy Degr ee course in Sankardeva Yogashrama College Hospital Research Center at Guwahati, which is said to be Government recognized college. In the said course, the peti tioner secured first division. 5. After filing of the writ petition with the aforesaid pleas, the petition er filed an additional affidavit bringing on record his application dated 19.5.2 010 to the State Information Commission, Assam under the Right To Information Ac t, 2005, by which he sought for information in respect of qualification and elig ibility of the respondent No. 4 for the said post of Assistant Director (Yoga) t hat was advertised by APSC as aforesaid. The petitioner has also brought on reco rd the letter dated 23.6.2010 (Annexure-IX) addressed to him by the Under Secret ary to the Government of Assam in the Sports & Youth Welfare Department, by whic h, he was furnished with the information sought for in respect of selection of t he respondent No. 4 by the APSC as Assistant Director (Yoga). BY the said letter , the information relating to educational qualification of the respondent No. 4 along with the documents including one Yoga certificate in support of the candid ature of the respondent No. 4 was furnished. For a ready reference, the said let ter dated 23.6.2010 is reproduced below: GOVERNMENT OF ASSAM SPORTS & YOUTH WELFARE DEPARTMENT DISPUR:: GUWAHATI-6 NO.SYW.109/2005/Pt.III/50, Dated, Dispur the 23rd June’2010 From: Shri D.K. Das Under Secretary to the Govt. of Assam To: Shri Dulal Deka S/o Shri Tarun Deka Vill-Digunpar P.O. Soneswar Dist.-Kamrup, Assam Sub: Submission of information under the Right to Information Act, 2005. Ref: Your application dated 19.5.2010. Sir, With reference to your application dtd. 19.5.2010, I am directed to furnish here with the required information under the RTI Act, 2005 in respect of selection of the post of Asstt. Director (Yoga) by the APSC to Mrs. Juri Devi. No. 1: - The Educational Qualification of Mrs. Juri Devi and other documents are furnish below:- (a) Degree certificate -- 1 (one) photo copy (b) Yoga certificate -- 1 (one) - do - (c) Degree college of physical education’s certificate-- 1 (one) - do - (d) Degree college of physical education’s provisional certificate-- 1 (one) - do - (e) B.P. Ed.’s marksheet -- 1 (one) - do - (f) APSC’s Advertisement -- 1 (one) - do - (g) APSC’s select list -- 1 (one) - do - Yours faithfully Enclo: Certificates, copies & other documents Under Secretary to the Govt. of Assam Sports & Youth Welfare Department 23.6.2010 6. As indicated in the aforesaid letter, the documents, in support of the c andidature of the respondent No. 4 were (a) degree certificate (one copy); (b) Y oga certificate (one copy); (c) Degree, college of Physical Education Certificat e (one copy); (d) Degree, College of Physical Education’s certificate (one copy) ; (e) D.P. Edn. Marksheet (one copy); (f) APSC’s advertisement (one copy) and (G ) APSC’s select list (one copy). 7. The certificate in respect of which the present proceeding is concerned, i.e. degree or diploma in Yoga from Government/UGC recognized Physical Educatio n Institute is not found in the documents furnished by the said letter dated 23. 6.2010. The only certificate in that respect furnished was the three months cert ificate course issued by Shree Hanuman Vyayam Prasarak Mandal’s Yoga, Nisargopac har Kendra, Amravati. The documents supplied did not contain any diploma or degr ee certificate in Yoga. 8. It is in the aforesaid back ground, the specific plea of the petitioner is that the respondent No. 4 was illegally selected by the APSC for extraneous c onsideration, although, she did not conform to the requirement of eligibility cr iteria one of which was degree or diploma in Yoga from a Government/UGC recogniz ed Physical Education Institute. DEFENCE PLEAS 9. Number of affidavits and counter affidavits have been filed by the parti es including the APSC. In the affidavits filed by the respondent No. 4 and the A PSC, the stand taken is that the respondent No. 4 is qualified to hold the post of Assistant Director (Yoga) and that along with her application, she had submit ted the requisite certificate, although the same was not indicated in the applic ation form itself. PLEA OF THE RESPONDENT NO. 4 10. While dealing with the plea of the petitioner that she is not qualified to get selection for the post of Assistant Director (Yoga), the respondent No. 4 has stated about her present assignment as Physical Instructor under the Direct or of Sports & Youth Welfare, Government of Assam and her posting at Morigaon un der the District Sports Officer, Morigaon. According to the respondent No. 4, sh e has proficiency in different subjects as well as in Yoga, about which she has indicated in paragraph 6 of her counter affidavit. One of the documents mentione d therein is the Yoga and Naturopathy Diploma Course certificate, 2008, she had allegedly obtained from Pachim Mangaldoi Yoga Mahavidyalaya, purportedly recogni zed and approved by Government of India, Health & Family Welfare Department. 11. Since the respondent No. 4 has referred to the aforesaid certificate in support of her eligibility (Annexure-16), the same is quoted below: PASCHIM MANGALDOI YOGA MAHAVIDYALAYA HOSPITAL & RESEARCH CENTRE MANGALDOI YOGASHRAM SAMITI Regd. No. RS/857 of 1978-1979 Approved by Govt. of India Health & Family Welfare Certified that Shri/Mrs. Juri Devi son/daughter of Shri Anil Chandra Sharma an i nhabitant of Village-Narakasur, P.O. Kahilipara, P.S. Dispur Dist-Kamrup (Assam) was admitted in Yoga Mahavidyalaya as a regular student of one year Yoga & Natu ropathy Diploma Course. He/She has come out successful in Kaya-Yogi or E.P.V.T. (Entrance of Physical Yo ga Training). Principal 13.11.08 (Yogacharya-D.P. Sharma) Paschim Mangaldoi Yoga Mahavidyalaya Hospital & Research Centre Vill & P.O. Chamatiapara Mangaldoi-Darrang (Assam) Pin-784147 Date: 13.11.2008 12. According to the respondent No. 4, she had submitted her application thr ough proper channel enclosing all the required documents including the aforesaid certificate. In due course, the eligible candidates were invited for selection by the APSC and she was selected. Counter attacking the petitioner on the point of eligibility, the respondent No. 4 has contended that the Yoga certificates pr oduced by the petitioner are not in conformity with the requirement of the adver tisement. According to her, she not only possesses the three months certificate course in Yoga but also possesses the diploma in Yoga from the said institute at Mangaldoi. According to her, she was a regular student of the said institute fo r the session 2007-08 and completed final examination in the month of February, 2008 and got 1st division. 13. While pleading that she possesses the required qualification in Yoga in terms of the advertisement, the respondent No. 4 has made the following statemen t in paragraph 12 of the counter affidavit. The deponent begs to state the Assistant Director of Sports & Youth Welfare, As sam asked the petitioner to submit copies of Degree and Diploma which was submit ted to the APSC for the said post. The petitioner submitted the same to the Asst t. Director as directed. PLEA OF THE APSC 14. The APSC in its affidavit filed through its in-charge Secretary has cont ended that the petitioner did not conform to the requirement of the advertisemen t and that the 15 months Yoga diploma course, he had undergone in the particular institute did not conform to the requirement of the advertisement. According to the APSC, Umachal Yoga Mahavidyalaya from which the petitioner has obtained his diploma is not a recognized institute of the Government or UGC. 15. As regards the qualification of the respondent No. 4, it has been stated in paragraph-13, 18 and 21 of the counter affidavit that she has been selected on the basis of the documents submitted by her at the time of interview. For a r eady reference, paragraphs-13, 18 and 21 of the counter affidavit are reproduced below: 13. That with regard to the statement made in paragraph 12, the answering respo ndent specifically denies the correctness of the statement made in the aforesaid paragraph. The answering respondent No. 4 has been selected on the basis of all the documents submitted by her at the time of the interview. The documents were duly verified by the expert appointed for the said selection process. In select ion of the candidate, academic qualifications, training qualifications, service experience, marks given by the expert and marks obtained in the general intervie w has been taken into consideration. The selected candidate submitted all valid documents. 18. That with regard to the statement made in paragraph 19, the respondent No. 4, Smti Juri Devi is not at all eligible for the post of the Assistant Director (Yoga) under the Department of Sports and Youth Welfare, Government of Assam, is specifically denied by the answering respondent. Further with regard to the sta tement that the respondent No. 4 has obtained a certificate from an unrecognized Yoga institution of Maharastra that to with mentioning of a three months certif icate course in Yoga Education is specifically denied by the answering responden t. 21. The answering respondent further affirms and reiterates that the whole selec tion process has been done in a transparent and a fair manner. The requirements as per the advertisement i.e. degree or diploma in Yoga from a government/Univer sity Grants Commission recognized physical education institute was taken into co nsideration. Further academic qualification, additional qualification, training qualification relevant to the subject, service experiences, marks given by the e xpert and marks obtained in the interview were duly taken in consideration to se lect the selected candidate. 16. In the additional affidavit-in-opposition filed by the APSC, it has been stated that the above quoted certificate produced by the respondent No. 4 was t aken into consideration during the process of the selection. It has been stated that by necessary implication it should be understood that the said certificate was accepted as a certificate from an institution awarding one-year diploma in Y oga approved/recognized by Government/UGC. In paragraph 6 of the said affidavit, it has been stated that as per the records, the respondent No. 4 had submitted the following documents. a) Pass certificate of HSLC examination in 2nd division during the year 1994 an d its mark sheet. b) Pass certificate of HSSLC examination in 2nd division during the year 1996 an d its mark sheet. c) Pass certificate of TDC (Arts) in 3rd division during the year 2000 and its m ark sheet. d) Pass certificate of BPED in 1st division during the year 2006. e) Pass certificate of 3 (three) months certificate course in 1st division durin g the year 2006. f) Pass certificate 1 (one) year diploma course in Yoga from Paschim Mangaldoi Y oga Mahavidyalaya in 1st division during the year 2008 and its mark sheet. g) Age proof certificate. REPLY AFFIDAVIT OF THE PETITIONER 17. As against the aforesaid pleas of the respondents, the petitioner in his reply affidavit has contended that the certificate of diploma and degree obtain ed by him are of recognized institutes and that the plea of the APSC and the res pondent No. 4 that the said institutes are not recognized is not tenable. In thi s connection, he has brought on record the names of the appointees in the State Government departments who obtained Yoga certificate/diploma from the said insti tutes particularly Umachal Yoga Mahavidyalaya. Dealing with the plea of the resp ondent No. 4 that she obtained the diploma in Yoga from the particular institute at Mangaldoi, the petitioner has contended that the certificate is the product of manipulation inasmuch as no such certificate had accompanied the application submitted by the respondent No. 4. The petitioner has also brought on record the information and documents he has received from the Pachim Mangaldoi Yogic Hospi tal in respect of the certificate obtained by the respondent No. 4 from there. 18. As per the information furnished to the petitioner by the said institute vide letter dated 7.2.2011, the answer scripts pertaining to terminal, half yea rly and final examination are not kept in the office after one year meaning ther eby that the said answer scripts are not available for perusal. In clause 6 of t he letter admitting that the course of study on Yoga is not recognized by the Go vernment or University, it has been stated thus: No course of yoga and nature cure are recognized by any Government or Universit y. The Central Yoga And Nature Cure Research Centre under the Government of Indi a, Ministry of Health and Family Welfare has extended grant by connecting this c ourse with the Yoga and Nature Hospital. (Translated to English from Assamese) WHAT TRANSPIRED DURING THE COURSE OF HEARING AND RESPONSE OF THE APSC 18. During the course of hearing on 17.2.2011, learned counsel representing the APSC produced the documents/records pertaining to the selection which find m ention in the order passed on that day. Having regard to the relevance of the sa id documents and the order passed on that day i.e. 17.2.2011, for a ready refere nce, the same is quoted below: 17.02.2011 Heard learned counsel for the parties at some length. Mr. B. Goswami, le arned counsel for the petitioner submits that although he has sought for informa tion through RTI application regarding the purported course undertaken by the re spondent No.4 in Paschim Mangaldoi Yuga Mahavidyalaya, the petitioner is yet to be furnished with the required information by the said Institute. However, he su bmits that the petitioner is expecting all the details during the course of the day. Mr. A.K. Bhuyan, learned Standing Counsel, APSC has produced the documen ts pertaining to selection, which are described below :- 1st. A typed sheet naming the post with scale of pay, age and educational qua lification required for the post. 2nd. Statement of applications received for the post including the applicatio ns made by the petitioner and the respondent No.4. Although the statement was or iginally prepared by manual type writing but there is handwritten insertion agai nst some names regarding their qualification. Such insertion can be found agains t the name of the respondent No.4 also. The insertion is Dip in Yuga, Paschim M angaldoi Yuga Mahavidyalaya ( 1 yr) 1/08 . The statement comprises of 7 (seven) sheets. 3rd. This document is replica of the first document. 4th. This document/sheet of paper is described as merit list for recruitment to the post of Assistant Director (Yuga) containing the marks secured by the can didates and is signed by U/Secy / Asstt. Controller of Examination with the endo rsement Prepared and checked by me . 5th. This document is said to be the minutes of selection recommending the re spondent No.4 for the post. Although in this minutes, there are 5 (five) members including the Chairperson, APSC but only 3 (three) members have signed the minu tes leaving aside other 2 (two) members. 6th. Photocopy of the document signed by the Chairperson indicating the total marks awardable under different heads, such as, HSLC, HSSLC, Degree, Degree of Diploma in Yuga, Service experience, additional qualification, general bearing a nd knowledge of the subject. Total marks awardable are 10, 10, 10, 15, 2, 3, 30 & 20 respectively. 7th. This is yet another photocopy of a document signed by the Chairperson in dicating the marks to be awarded under various categories, such as, Very Good (2 0), Good (18), Average (16) and Fair (14). 8th. This is the original document containing the list of the candidates call ed for interview for the post held on 4.3.2010, signed by one Shri Aditya Kumar Talukdar, categorising the candidates as fair, average, good, etc. 9th. Original mark sheets showing the awarding of marks to different candidat es. Each one of the pages bears the illegible initial / signature of some body Above are the documents on the basis of which the selection has been conducted r ecommending the respondent No.4 for the post of Assistant Director (Yuga). Nowhe re in the documents, any involvement of any one of the members of the APSC is di scernible except the aforesaid purported minutes of the Selection Committee, in which out of 5 (five) members, only 3 (three) have signed. By the said minutes, the respondent No.4 has been recommended on merit. However, no reason is discern ible. Interestingly, there is no specific date of the minutes of the selection. While the Chairperson and another member have signed the minutes on 15.3.2010, t he 3rd member has signed the minutes on 10.3.2010. In view of the above and as prayed for by the learned Standing Counsel, APSC, st ands adjourned to 1.3.2011 enabling the APSC to clarify the position about the m ethodology and procedure adopted towards making the selection. As indicated abov e, the records do not throw any light as to on what basis, selection was made. I t will be pertinent to mention here that the respondent No.4 has been shown awar ded 30 out of 30 under the head General Bearing . In the mean time, the petitioner may also produce the information received throu gh the RTI. Registry while keeping the aforesaid original records under safe custody in a se aled envelope, may furnish the photocopies of the said documents to the learned Standing Counsel, APSC. Let a copy of this order be furnished to the learned Standing Counsel, A PSC, for his necessary follow up action. 19. In response of the said order, the APSC has filed an additional affidavi t on 2.3.2011, in which, it has been stated that at the first level of scrutiny of applications received by the Commission, the applications are scrutinized and name, address, community, age, qualification etc. are typed in the statement of applications. Subsequent thereto, the applications along with documents accompa nied, are scrutinized thoroughly in terms of the advertisement and the applicant s possessing the minimum qualification as per the advertisement are considered b y the Commission to be called for interview and accordingly call letters are iss ued. 20. As regards the queries made as to how there could be insertion by hand i n the statement recording particulars of the applicants, the APSC in its said af fidavit dated 2.3.2011 has stated that the respondent No. 4 did not mention in h er application about her diploma in Yoga, but her application was accompanied by the certificate of diploma in Yoga. According to the APSC, the certificate pert aining to diploma in Yoga was found along with her application and the same havi ng been accepted, it was inserted by hand and she was called for the interview. 20. In the aforesaid affidavit, the APSC has stated that one Sri R.K. Paul, Member, APSC was the Chairman of the Selection Board and one Sri Aditya Kumar Ta lukdar was the expert/advisor for the interview of the candidates and that the i nterview was held on 4.3.2010 in which 8 candidates appeared. Before the intervi ew, marksheet was prepared by the concerned section regarding the academic marks of the candidates on the basis of their academic certificates. In paragraph 13 of the said affidavit, while stating that the Commission recommended the respond ent No. 4 and the said recommendation was signed by three members out of five AP SC members, it has been stated that the same duly conformed to the requisite quo rum. 21. In another affidavit filed by the APSC on 28.3.2011, division of total 1 00 marks for the selection has been indicated, which are as follows: 1. HSLC - 10 marks 2. HSSLC - 10 marks 3. Degree/Bachelor - 10 marks 4. Degree or diploma in yoga - 15 marks 5. Service/experience - 2 marks 6. Additional qualification - 3 marks 7. General bearing - 30 marks 8. Knowledge of the Subject - 20 marks 22. As regards the General Bearing carrying 30 marks, the stand taken in the affidavit is that the Member or Chairman of the Commission, who happens to be t he Chairman of the Interview Board gives marks under the said head as per his di scretion based on the performance of the candidates in the interview. 23. The APSC has filed another affidavit on 20.7.2011 responding to the foll owing queries made by the Court. (i) Whether there is any minutes of the selection? (ii) Why Fair is below Average? (iii) Whether there is any document to show that Mr. R.K. Paul was appointed a s the Chairman of the Board? 24. In the affidavit, the APSC has responded to the said queries by stating that there is only one minutes of the selection as furnished to the Court. As re gards FAIR being placed below AVERAGE, it has been stated that same was the prac tice prevalent in the APSC till framing of APSC (Procedure and Conduct of Busine ss) Rules, 2010 which came into force on 2.8.2010. 25. As regards appointment of Sri R.K. Paul as the Chairman of the Selection Board, the APSC has annexed the photocopy of the documents marked confidential, which reads as follows: CONFIDENTIAL ASSAM PUBLIC SERVICE COMMISSION The