WP(C) 2755/2009 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE (ACTING) HON’BLE MR. JUSTICE B.K.SHARMA Ranjan Gogoi, Chief Justice (Acting) Democratic values enshrined by the Constitution can thrive and p rosper only on public confidence in the institutions that the Constitution has e nvisaged to act as necessary support pillars. Public confidence in the Assam Pub lic Service Commission over the years has eroded and a perception has been gener ated that all is not well with the said institution. Though the tenor of the lan guage used may be mild in its suggestion, it cannot but be observed that lack of public confidence in the Public Service Commission carries ominous portents for the future. The credibility of any institution primarily depends on the conduct of the persons manning it. People of exemplary conduct, exceptional ability and utmost integrity who share a serious concern for public good, alone, should be inducted into such a body. There is no room for compromise or complacency in the matter. Proper induction and necessary cleansing must be done if any institutio n has to earn public trust and confidence without which the constitutional goal will prove to remain an illusion. The above observations have been felt necessar y in view of the perceptions with regard to the functioning of the Commission th at had manifested itself in the course of the deliberations that had taken place at the prolonged hearing of these cases. The ultimate conclusion that the Court has reached in the present cases on the basis of application of the settled leg al principles is by no means a vindication of the acts of the Public Service Com mission and the above observations have been felt necessary to awaken a realizat ion in the right quarters the need for an abundant measure of public confidence in the institution that alone can justify the high constitutional status bestowe d on it. Having stated all that was considered necessary, the Court will now tur n to the facts of the present cases. 2. An advertisement dated 10.8.2006 was issued by the Under Secreta ry of the Assam Public Service Commission (hereinafter referred to as ’the Commi ssion’) inviting applications from eligible candidates to undergo a preliminary examination to screen candidates for the main written examination to be held for filling up 116 Nos. of posts in the Assam Civil Service and other allied cadres . Of the 116 posts advertised, 11 posts were backlog vacancies. By a corrigendum dated 5.9.2006 issued by the concerned authority of the Commission it was clari fied that the provisions of the Assam Women (Reservation of Vacancies in Service s and Posts) Act, 2005 (hereinafter referred to as ’the Women Reservation Act) w ould apply to the instant selection. The preliminary examination was held on 18. 11.2007 in different centers of the State wherein over 23,000 candidates had par ticipated. The result of the preliminary examination was declared on 1.5.2008 an d 5569 Nos. of candidates were shown to have qualified for the main examination. Of the qualified candidates, 4381 appeared in the main examination that was hel d on different dates from 7.7.2008 to 31.7.2008. The result of the main examinat ion was declared on 1.12.2008 and call letters were issued to 507 candidates to appear in the interview. 3. Two writ petitions i.e. WP(C) Nos. 5172 and 5368 of 2008 were in stituted before this Court raising a grievance that the petitioners therein, who were female candidates, had not been called for the interview though male candi dates of the category to which the petitioners belonged though had secured lesse r marks have been issued call letters for the interview. Both the writ petitions were disposed of by this Court by an order dated 6.1.2009 whereby acting on the stand taken by the Commission that there was an error committed by it in exclud ing certain candidates and not calling them for the interview, this Court had pe rmitted the Commission to call additional candidates for the interview as prayed for. Accordingly, 93 more candidates were called for the interview by the Commi ssion. Interviews for the 507 candidates initially called were held between 11.1 2.2008 and 18.12.2008 whereas the additional 93 candidates called by the Commiss ion were interviewed on 13th and 14th February, 2009. 4. In the course of the proceedings of the two writ petitions in qu estion materials were laid by the Commission before the Court which indicated th at in all 51 out of 116 posts were earmarked for the general/ open category cand idates. The number of such posts for the general category candidates really ough t to have been at least 53 out of 105 posts advertised, the remaining 11 being b acklog vacancies. No question with regard to the aforesaid issue was, however, r aised in the writ petitions. That apart, from the materials placed before the Co urt it appeared that out of the 51 posts earmarked for the general category cand idates, 15 posts were identified to be reserved for women under the provisions o f the Women Reservation Act. The aforesaid 15 posts were put in a separate compa rtment and only female candidates, in order of merit, were called for interview against the said posts. The remaining 36 posts of the open category were to be i n another compartment and candidates of all categories (both males and females) were called for interview against the said posts on the basis of their relative merit. A similar exercise was undertaken while calling candidates of each of the reserved categories for interview against the posts earmarked for such reserved category candidates. In other words, the posts earmarked for the reserved categ ory candidates were also spilt up into two compartments-one exclusive for the fe males and the other for males as well as females. Such an exercise having given rise to a situation where some female candidates with higher marks than their ma le counterparts of a particular category were left out, the writ petitions i.e. WP(C) Nos. 5172 and 5368 of 2008 were filed. In the said writ petitions the Comm ission having prayed for leave to call additional candidates, the same were clos ed by grant of such leave. No issue with regard to the correctness of the exerci se undertaken in the light of the legal requirement imposed by the Women Reserva tion Act was raised in the aforesaid proceedings. 5. The interviews of exactly 600 candidates (507 + 93) having been completed by the Commission, on the eve of publication of the final select list, a writ petition i.e. WP(C) No. 5346/2008 was instituted before this Court calli ng into question the legitimacy of the list of candidates called for the intervi ew and the process of final selection on that basis. It will not be necessary to notice the specific grounds on which the writ petition was filed and the basis of rejection of the claims of the writ petitioners by the order dated 4.6.2009 save and except that in paragraph 33 of the order passed in the said writ petiti on the very same Division Bench of this Court had found fault with the actions o f the Commission in placing female candidates of different reserved categories i .e. OBC, SC, ST(P), ST(H) etc. in such categories though they had secured more m arks than the female candidates who were included in the list of open category c andidates called for the interview. Accordingly, it was left open to the Commiss ion to correct what was perceived by the Court to be an erroneous exercise. The view taken in paragraph 33 of the judgment and the consequential directions issu ed are apparently fallacious in view of the laid down by the Apex Curt in Indra Sawhney & Ors. -vs- Union of India & Ors., 1992 Supp 3 SCC 217; Anil Kumar Gupta & Ors. -vs- State of U.P. & Ors., (1995) 5 SCC 173 and in Rajesh Kumar Daria -v s- Rajasthan Public Service Commisison & Ors., (2007) 8 SCC 785. 6. The above facts are ample testimony of what has been always said that judges are not infallible and are always open to corrections . Accordingl y, the apparent error in paragraph 33 of the judgment dated 4.6.2009 passed in W P(C) No. 5346/2008 is being suo motu corrected by us by a separate order in the said proceeding. What, however, needs to be emphasized is the fact that the dec isions cited above with regard to the concepts of ’vertical and horizontal reser vations’ were not pointed out to the Court at the hearing of WP(C) No. 5346/2008 . In fact, the Commission had gone ahead to implement the Court’s above directi ons and, in the process, has identified 58 more candidates who, according to the Commission were ’entitled’ to be called for the interview. However, none of the said candidates were so called as even if they were to be given full marks in t he interview (200) they would not have made it to the final select list. 7. Thereafter, on 15.6.2009 the final select list of the successful candidates was notified and the same was communicated to the Government. The Go vernment in its turn issued appointment orders to the selected candidates which obliged the said candidates to join within the permissible joining time. At this stage, on 8.7.2009, WP(C) No. 2755/2009 was filed contending that out of the 11 6 posts advertised excluding 11 backlog vacancies, at least 53 posts should have been earmarked for the general category candidates in view of the fact that the reservation cannot exceed 50% of the advertised posts. Against the 53 Nos. of p osts that were required to be earmarked for the general category candidates, onl y 51 posts were allotted to such candidates. The pleadings in the writ petition also indicated that the 30% quota for women under the Women Reservation Act was worked out as a vertical reservation resulting in a situation where 65% of the p osts advertised were treated as reserved posts. In addition to the above issues grievances were also raised with regard to allotment of additional marks to two candidates bearing Roll Nos. 32328 (Ms. Mallika Mazumdar) and 33035 (Ms. Sabita Das). One selected candidate Dipanjali Das, it was alleged, had indirectly canva ssed her candidature by means of a letter written by her community urging for he r selection. According to the petitioners, the aforesaid letter amounted to indi rect canvassing by the candidate which disqualified her. All the aforesaid three candidates were impleaded as respondent Nos. 7,8 and 9 in the writ petition. In the writ petition filed, one Dr. Sasadhar Nath, a sitting Member of the Commiss ion was impleaded as the respondent No. 10. A U/O Note dated 12.6.2009 circulate d by the aforesaid respondent No. 10 was also enclosed to the writ petition as A nnexure-E. In the said U/O Note, the respondent No. 10 had highlighted that call letters for the interview were issued to a large number of ineligible candidate s besides serious anomalies in the evaluation of the answer scripts. Certain oth er issues with regard to the conduct of the competitive examination and the inhe rent deficiencies in the existing procedure which contained the potential of aff ecting the fairness of the selection process were also indicated. 8. This Court while entertaining the writ petition i.e. WP(C) No. 2 755/2009 had issued certain interim directions the result of which is that 116 c andidates though selected and appointed, have not been able to join in the posts in which they have been appointed. Thereafter, the matter, in view of the issue s involved, has been heard out of turn and the controversy arising in the writ p etition is sought to be resolved by the present judgment and order. 9. As already highlighted on the basis the pleadings contained in t he writ petition, two issues, in the main, arise. The first is with regard to th e correctness/ fairness in the evaluation of the answer scripts of the candidate s in the main written examination. Connected with the said question is the issue with regard to award of higher marks to some of the candidates including the re spondent Nos. 7 and 8 in the writ petition. The U/O Note dated 12.6.2009 of the respondent No. 10 and the stand taken by the said respondent in this regard woul d be covered by the aforesaid first issue identified by the Court. The second issue arising in the writ petition is with regard to the preparation of the list of candidates found eligible for the interview and t he final list of successful candidates in the light of the understanding of the Commission of the law with regard to vertical and horizontal reservation. The ab ove question would arise from the stand taken by the petitioners that in giving effect to the 30% reservation provided by the Women Reservation Act, the actual percentage of reservation provided by the Commission in the instant selection is 65%. The question with regard to the precise number of vacancies that should ha ve been earmarked for the open category i.e. 51 or 53 is a connected issue. 10. Having identified the issues that arise for consideration in the writ petition, the Court may now proceed to understand what has been projected in the affidavit of the respondent No. 10, Dr. Sasadhar Nath as well as in the t wo affidavits dated 10.8.2009 and 13.8.2009 filed by the Commission. 11. The respondent No. 10, Dr. Sasadhar Nath who is a sitting Member of the Commission has filed an affidavit dated 31.7.2009 and an additional affi davit dated 5.8.2009. The affidavit dated 31.7.2009 filed by the Respondent No.1 0 indicates that an adverse opinion with regard to the conduct of the competitiv e examination by the Public Service Commission had been highlighted in the print as well as electronic media which has a bad impact in the society . Dr. Nath had also indicated in the affidavit that there has been a progressive decline i n the number of participants in the civil services examination and a feeling has been generated in the public mind that selection by the Commission has been mad e on extraneous basis and on corrupt grounds. The respondent No. 10 has pointed out that under the norms in force, against the 116 posts, 12 times the number of candidates i.e. 1392 should have been declared eligible for the main examinatio n whereas 5569 candidates have been declared so eligible. Similarly, the respond ent No. 10 has pointed out that though the UPSC follows the ratio of 1: 2 while calling candidates for interview , the Assam Public Service Commission had calle d four times the number of candidates which should have been 464; yet, 507 candi dates have been so called. In para 9 of the affidavit Dr. Nath had stated that t he respondent No. 7, Ms. Mallika Mazumdar is a relative of the Controller of Exa minations and that that the verification of her answer scripts in the meeting of the Commission held on 11th and 12th June, 2009 had revealed addition of extra marks. Similar is the position, according to Dr. Nath, in the case of respondent No. 8, Ms. Sabita Das. In para 11 of the affidavit, the respondent No. 10 has p ointed out that in the meeting of the Commission held on 15.6.2009 the Controlle r of Examinations had placed before the Commission the answer scripts of several candidates in whose cases marks were deducted by the Head Examiner. According t o the respondent No. 10, such increase and decrease of marks had affected the fo rtune of many candidates. In the U.O. Note dated 12.6.2009, which has been enclo sed to the affidavit of the respondent No. 10, it has been stated that such cha nge of marks had been effected at the level of the Head Examiner who at best had examined only 10% of the answer scripts. That apart, in the affidavit filed, th e respondent No. 10 has pointed out other irregularities in the conduct of the s election including constitution of the interview Boards and the marks to be awar ded by the Members of such Boards, particularly the Advisor. The said facts are contained in another U/O Note dated 4.7.2009 submitted by the respondent No. 10 to the Secretary of the Commission which Note has also been enclosed to the affi davit filed by the said respondent. 12. In the additional affidavit dated 13.8.2009, the respondent No. 10 apart from making corrections of certain errors appearing in the affidavit da ted 31.7.2009, has further stated that the Controller of Examinations one Sri Ba lindra Hazarika as well as the Assistant Controller, one Sri T.C. Rajkhowa are b oth undergraduates whereas the similar posts in other Public Service Commissions like Tamil Nadu, Karnataka are being held by senior IAS officers. Along with th e additional affidavit the respondent No. 10 has enclosed a note dated 22.6.2009 addressed to the Secretary of the Commission by another Member informing the sa id authority of a news item in a local T.V. channel to the effect that one parti cular Head Examiner appointed to examine the answer scripts of Arts subjects was a Chemistry teacher. 13. The Commission in its affidavit dated 10.8.2009 had stated that social reservation in favour of SC, ST and OBC under Article 16(4) are vertical reservations while special reservation in favour of women/ physically changed pe rsons are horizontal reservations under Article 16(1). In case of vertical reser vation the candidates belonging to the reserved categories can compete for unres erved posts and if they are appointed against unreserved posts on the basis of t heir merit their numbers will not be counted against the quota reserved for the respective reserved categories. In other words, the reservation quota will remai n intact ad will be available to other reserved category candidates. According t o the Commission, the said principle applicable to vertical reservation will, ho wever, not apply to horizontal reservation. In the affidavit dated 10.8.2009 fil ed by the Commission, it has been stated that though 464 candidates ought to hav e been interviewed on the basis of the ratio of 1 : 4, in all 600 candidates wer e interviewed by the Commission against 116 posts advertised. In para 8 of the a ffidavit, the Commission had admitted that it had committed an error in the proc ess of identification of candidates to be called for the interview. It has been further stated in the said paragraph of the affidavit that following the law lai d down by the Apex Court in Anil Kr. Gupta (supra), the Public Service Commissio n has now identified 207 candidates who are qualified for the interview against 51 general category posts. Similarly, appropriate number of candidates qualified for interview against different reserved category posts have also been identifi ed. A compilation of the aforesaid list of candidates qualified to be called for the interview as per the law laid down in Anil Kumar Gupta (supra) has been enc losed as Annexure-IV to the affidavit of the Commission. 14. Though it has not been expressly stated, it is evident from the contents of para 9,10 and 11 of the affidavit of the Commission that the correct ly identified candidates who are eligible to be called for the interview had in fact been so called though their names were included in categories other than su ch categories against which they should have been initially included. Specifical ly, in para 9 it has been stated that four candidates whose names figure in the select list, namely, (i) Ms. Diptimoni Bora (Sl. No. 26 of the list of ACS (Juni or Grade); (ii) Ms. Sabita Das (Sl. No. 15 of the list of Inspector of Taxes); ( iii) Ms. Pinkumoni Gogoi (Sl. No. 16 of the list of Inspector of Taxes); and (iv ) Ms Elle Bora (Sr. No. 26 of the list of candidates for Assam Police Service) a re not eligible to be included in the final select list and, instead, four other candidates bearing Roll Nos. 14642 (891 marks), 10521 (OBC-M, 854 marks), 10539 ( OBC-M, 853 marks) and 11424 (General-women- 881 marks) are eligible for inclus ion in the select list of different categories of posts indicated in the affidav it filed. Furthermore, in para 9 of the affidavit the Commission has stated that the posts against which 10 candidates have been selected are liable to change a nd instead of the posts for which they have been found eligible they will now be eligible for certain other posts. A copy of such list of candidates has been an nexed to the counter affidavit of the Commission dated 10.8.2009 as Annexure-V. 15. In para 10 of the affidavit filed by the Commission, it has been stated that out of the 116 candidates whose names appear in the final select l ist dated 15.6.2009 already published, 113 candidates who have been selected are within the 464 candidates who were required to be called for the interview. Thr ee candidates bearing Roll Nos. 10366, 23330 and 10003 whose names appear at Sl. Nos. 525, 697 and 680 of the list prepared after the written examination are li able to be included in the select list being ST(H) candidates. 16. In para 11 of the counter affidavit dated 10.8.2009 of the Commi ssion the details of the number of candidates of each category i.e. General, SC, ST(P), ST(H), OBC etc. who should have been called for the interview on correct application of the law laid down by the Apex Court in Anil Kumar Gupta (supra) and the excess number of candidates so called have been indicated. Statements ha ve also been made to show that none of the excess candidates called for the inte rview had been selected in the final select list dated 15.6.2009. In case of cer tain reserved category candidates i.e. OBC, MOBC, it has been indicated that out of the candidates called from that category a certain number were eligible to b e called as general category candidates by virtue of their merit. If the aforesa id number of candidates are to be included in the general category a few more ca ndidates were required to be called for the interview from the particular reserv ed category. However, any call for interview of such candidates would be an empt y formality as by virtue of the marks secured by them in the written examination even if they are to be given full credit at the interview (200 marks) they woul d still not make it to the list of finally selected candidates. 17. In para 12 of the affidavit of the Commission, it has been state d that three candidates with Roll Nos. 39179 (General, Female- 922 marks), 36457 (OBC, Female- 853 marks) and 10718 (ST(P), Male- 819 marks) though may have bee n eligible for inclusion in the final select list were, however, not eligible fo r the particular post for which they have opted. Accordingly, their names are no t eligible to be included. 18. Pointing out the aforesaid facts in the affidavit filed, it has been stated that the Assam Public Service Commission may now be allowed by the C ourt to publish the corrected select list finalized on the basis of the paramete rs indicated in the affidavit the details of which have already been noted. 19. In so far as the stand taken by the respondent No. 10 is concern ed, according to the Commission, the respondent No. 10 was present in the meetin g of the Commission dated 15.6.2009 in which it was decided that the select list of candidates should be finally published. According to