Ranjan Gogoi, CJ. (Acting).:-

Democratic values enshrined by the Con stitution can thrive and prosper only on pub lic confidence in the institutions that the Con stitution has envisaged to act as necessary sup port pillars. Public confidence in the Assam Public Service Commission over the years has eroded and a perception has been generated that all is not well with the said institution. Though the tenor of the language used may be mild in its suggestion, it cannot but be ob served 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 pub lic 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 institution has to earn public trust and confi dence without which the constitutional goal will prove to remain an illusion. The above observations have been felt necessary in view of the perceptions with regard to the func tioning of the Commission that 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 legal principles is by no means a vindication of the acts of the Public Service Commission and the above observations have been felt neces sary to awaken a realization in the right quar ters the need for an abundant measure of pub lic confidence in the institution that alone can justify the high constitutional status bestowed on it. Having stated all that was considered necessary, the Court will now turn to the facts of the present cases.

2. An advertisement dated 10.8.2006 was issued by the Under Secretary of the Assam Public Service Commission (hereinafter re ferred to as 'the Commission') inviting appli cations 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 Com mission it was clarified that the provisions of the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 (here inafter referred to as 'the Women Reserva tion Act) would 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 partici pated. The result of the preliminary examina tion was declared on 1.5.2008 and 5569 Nos. of candidates were shown to have qualified for the main examination. Of the qualified can didates, 4381 appeared in the main exami nation that was held on different dates from 7.7.2008 to 31.7.2008. The result of the main examination 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 instituted be fore this Court raising a grievance that the petitioners therein, who were female candi dates, had not been called for the interview though male candidates of the category to which the petitioners belonged though had secured lesser marks have been issued call letters for the interview. Both the writ peti tions 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 excluding certain candidates and not calling them for the inter view, this Court had permitted the Commis sion to call additional candidates for the in terview as prayed for. Accordingly, 93 more candidates were called for the interview by the Commission. Interviews for the 507 can didates initially called were held between 11.12.2008 and 18.12.2008 whereas the additional 93 candidates called by the Commission were interviewed on 13th and 14th February, 2009.

4. In the course of the proceedings of the two writ petitions in question materials were laid by the Commission before the Court which indicated that in all 51 out of 116 posts were earmarked for the general/open cat egory candidates. The number of such posts for the general category candidates really ought to have been at least 53 out of 105 posts advertised, the remaining 11 being backlog vacancies. No question with regard to the aforesaid issue was, however, raised in the writ petitions. That apart, from the mate rials placed before the Court it appeared that out of the 51 posts earmarked for the general category candidates, 15 posts were identi fied to be reserved for women under the pro visions of the women reservation act. The aforesaid 15 posts were put in a separate compartment 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 in another compartment and candidates of all catego ries (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 cat egory candidates. In other words, the posts earmarked for the reserved category candi dates were also spilt up into two compart ments-one exclusive for the females 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 male 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 Commis sion having prayed for leave to call additional candidates, the same were closed by grant of such leave. No issue with regard to the cor rectness of the exercise undertaken in the light of the legal requirement imposed by the women reservation act was raised in the aforesaid proceedings.

5. The interviews of exactly 600 candi dates (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 calling into question the legitimacy of the list of candidates called for the interview and the process of final selection on that ba sis. It will not be necessary to notice the spe cific 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 peti tion the very same Division Bench of this Court had found fault with the actions of the Com mission in placing female candidates of dif ferent reserved categories i.e. OBC, SC, ST(P), ST(H) etc. in such categories though they had secured more marks than the female candidates who were included in the list of open category candidates called for the in terview. Accordingly, it was left open to the Commission 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 issued are apparently fallacious in view of the laid down by the Apex Court 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 Vs. 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 correc tions". Accordingly, the apparent error in paragraph 33 of the judgment dated 4.6.2009 passed in WP(C) No. 5346/2008 is being suo motu corrected by us by a separate or der in the said proceeding. What, however, needs to be emphasized is the fact that the decisions cited above with regard to the con cepts of'vertical and horizontal reservations' were not pointed out to the Court at the hear ing of WP(C) No. 5346/2008. In fact, the Commission had gone ahead to implement the Court's above directions and, in the process, has identified 58 more candidates who, ac cording 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 the inter view (200) they would not have made it to the final select list.

7. Thereafter, on 15.6.2009 the final se lect list of the successful candidates was noti fied and the same was communicated to the Government. The Government in its turn is sued appointment orders to the selected can didates 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 116 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 posts that were required to be ear marked for the general category candidates, only 51 posts were allotted to such candi dates. The pleadings in the writ petition also indicated that the 30% quota for women un der the women reservation act was worked out as a vertical reservation resulting in a situ ation where 65% of the posts 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 canvassed her candidature by means of a letter written by her community urging for her selection. Ac cording to the petitioners, the aforesaid letter amounted to indirect canvassing by the candidate which disqualified her. All the afore said three candidates were impleaded as re spondent Nos. 7, 8 and 9 in the writ petition. In the writ petition filed, one Dr. Sasadhar Nath, a sitting Member of the Commission was impleaded as the respondent No. 10. A U/O Note dated 12.6.2009 circulated by the aforesaid respondent No. 10 was also en closed to the writ petition as Annexure-E. In the said U/O Note, the respondent No. 10 had highlighted that call letters for the inter view were issued to a large number of ineli gible candidates besides serious anomalies in the evaluation of the answer scripts. Certain other issues with regard to the conduct of the competitive examination and the inherent de ficiencies in the existing procedure which con tained the potential of affecting the fairness of the selection process were also indicated.

8. This Court while entertaining the writ petition i.e. WP(C) No. 2755/2009 had issued certain interim directions the result of which is that 116 candidates 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 issues involved, has been heard out of turn and the controversy arising in the writ petition is sought to be resolved by the present judgment and order.

9. As already highlighted on the basis the pleadings contained in the writ petition, two issues, in the main, arise. The first is with re gard to the correctness/fairness in the evalu ation of the answer scripts of the candidates in the main written examination. Connected with the said question is the issue with regard to award of higher marks to some of the can didates including the respondent 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 re gard would be covered by the aforesaid first issue identified by the Court.

The second issue arising in the writ peti tion is with regard to the preparation of the list of candidates found eligible for the inter view and the final list of successful candidates in the light of the understanding of the Com mission of the law with regard to vertical and horizontal reservation. The above question would arise from the stand taken by the peti tioners that in giving effect to the 30% reser vation provided by the women reservation act, the actual percentage of reservation pro vided by the Commission in the instant selec tion is 65%. The question with regard to the precise number of vacancies that should have 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 respon dent No. 10, Dr. Sasadhar Nath as well as in the two 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 affidavit dated 5.8.2009. The affidavit dated 31.7.2009 filed by the Respondent No. 10 indicates that an adverse opinion with regard to the conduct of the competitive examination by the Public Ser vice 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 in 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 made on extraneous basis and on cor rupt 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 de clared eligible for the main examination whereas 5569 candidates have been declared so eligible. Similarly, the respondent No. 10 has pointed out that though the UPSC fol lows the ratio of 1:2 while calling candidates for interview, the Assam Public Service Com mission had called four times the number of candidates which should have been 464; yet, 507 candidates have been so called. In para 9 of the affidavit Dr. Nath had stated that the respondent No. 7, Ms. Mallika Mazumdar is a relative of the Controller of Examinations 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 posi tion, 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 pointed out that in the meeting of the Com mission held on 15.6.2009 the Controller of Examinations had placed before the Commission the answer scripts of several candidates in whose cases marks were deducted by the Head Examiner. According to the respondent No. 10, such increase and decrease of marks had affected the fortune of many candidates. In the U.O. Note dated 12.6.2009, which has been enclosed to the affidavit of the re spondent No. 10, it has been stated that such change of marks had been effected at the level of the Head Examiner who at best had ex amined only 10% of the answer scripts. That apart, in the affidavit filed, the respondent No. 10 has pointed out other irregularities in the conduct of the selection including constitution of the interview Boards and the marks to be awarded 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 affidavit 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 appear ing in the affidavit dated 31.7.2009, has fur ther stated that the Controller of Examina tions one Sri Balindra Hazarika as well as the Assistant Controller, one Sri T.C. Rajkhowa are both undergraduates whereas the similar posts in other Public Service Commissions like Tamil Nadu, Karnataka are being held by senior IAS officers. Along with the addi tional affidavit the respondent No. 10 has enclosed a note dated 22.6.2009 addressed to the Secretary of the Commission by an other Member informing the said authority of a news item in a local T. V. channel to the ef fect that one particular Head Examiner ap pointed 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 persons are horizontal reservations under Article 16(1). In case of vertical reser vation the candidates belonging to the reserved categories can compete for unreserved posts and if they are appointed against unreserved posts on the basis of their merit their numbers will not be counted against the quota reserved for the respective reserved categories. In other words, the reservation quota will re main intact and will be available to other re served category candidates. According to the Commission, the said principle applicable to vertical reservation will, however, not apply to horizontal reservation. In the affidavit dated 10.8.2009 filed by the Commission, it has been stated that though 464 candidates ought to have been interviewed on the basis of the ratio of 1 :4, in all 600 candidates were in terviewed by the Commission against 116 posts advertised. In para 8 of the affidavit, the Commission had admitted that it had com mitted an error in the process 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 laid down by the Apex Court in Anil Kr. Gupta (supra), the Public Service Commission has now iden tified 207 candidates who are qualified for the interview against 51 general category posts. Similarly, appropriate number of can didates qualified for interview against differ ent reserved category posts have also been identified. 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 enclosed as Annexure-IV to the affidavit of the Commis sion.

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 correctly 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 such catego ries against which they should have been ini tially included. Specifically, in para 9 it has been stated that four candidates whose names figure in the select list, namely, (i) Ms. Diptimoni Bora (SI. No. 26 of the list of ACS (Junior Grade); (ii) Ms. Sabita Das (SI. No. 15 of the list of Inspector of Taxes); (iii) Ms. Pinkumoni Gogoi (SI. 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) are 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 inclusion in the select list of different catego ries of posts indicated in the affidavit 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 and 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 annexed 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 list 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. Three candidates bearing Roll Nos. 10366, 23330 and 10003 whose names appear at SI. Nos. 525, 697 and 680 of the list prepared after the written examination are liable 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 Commission 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 inter view 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 have also been made to show that none of the excess candidates called for the interview had been selected in the final select list dated 15.6.2009. In case of certain reserved cat egory candidates i.e. OBC, MOBC, it has been indicated that out of the candidates called from that category a certain number were eli gible to be called as general category candi dates by virtue of their merit. If the aforesaid number of candidates are to be included in the general category a few more candidates were required to be called for the interview from the particular reserved category. How ever, any call for interview of such candidates would be an empty 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 would still not make it to the list of finally selected can didates.

17. In para 12 of the affidavit of the Com mission, it has been stated that three candi dates with Roll Nos. 39179 (General, Fe male- 922 marks), 36457 (OBC, Female-853 marks) and 10718 (ST(P), Male- 819 marks) though may have been eligible for in clusion in the final select list were, however, not eligible for the particular post for which they have opted. Accordingly, their names are not 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 al lowed by the Court to publish the corrected select list finalized on the basis of the param eters indicated in the affidavit the details of which have already been noted.

19. In so far as the stand taken by the re spondent No. 10 is concerned, according to the Commission, the respondent No. 10 was present in the meeting of the Commission dated 15.6.2009 in which it was decided that the select list of candidates should be finally published. According to the Commission, no dissent was raised by the respondent No. 10 who had signed the minutes of the said meet ing. That apart, relying on the law laid down by the Apex Court in Bihar Public Service Commission & Anr. Vs. Dr. Shiv Jatan Thakur & Ors., reported in 1994 Supp (3) SCC 220 (Para 28), the Commission in the affidavit filed has contended that the respon dent No. 10 cannot be allowed to question the validity of the selection made by the Com mission so long he continues to be a Mem ber of the Commission.

20. In the additional affidavit dated 13.8.2009, the Commission acting pursuant to an order of this Court has clarified that the panel of examiners, scrutinizers and head ex aminers appointed in respect of the Combined Competitive (Main) Examination had been approved by the Commission on 22.12.2006. As the main examination was held in 2008, additional names drawn from the Gauhati University, Dibrugarh University and other colleges had to be included in the said approved list. In para 5 of the additional affida vit the details of the procedure followed in evaluating the answer scripts upto the stage of tabulation of results has been mentioned. In para 6 of the additional affidavit, the de tails of the extra marks secured by respon dent Nos. 7 and 8 have also been indicated. In para 7 of the additional affidavit, it has been stated that award of marks and re-evaluation thereof is permitted by the proviso to rule 42 of the assam public service commission (procedure & Conduct of Business) Rules, 1986 and correction of marks per se without any other material to indicate any extraneous or oblique purpose will not invalidate the cor rections of marks as made.

21. A preliminary consideration of the writ petitions, particularly, the issue with regard to vertical and horizontal reservation having in dicated that some of the selected candidates who, in the meantime, have been appointed could be affected by the on going proceeding in the writ petition, notice in two leading news papers of the State was directed to be issued by the Public Service Commission informing all candidates who may be desirous of par ticipating in the present proceeding to do so. This was done, particularly, in view of the in terim order passed by this Court on 22.7.2009 not to allow any of the 116 candi dates to join in the posts in which they may have been offered appointment. Naturally, at the stage when the interim order was passed on 22.7.2009, the extent of infirmity, if any, of the selection held, on correct application of the principles of horizontal and vertical res ervation was yet to be conclusively deter mined.

22. Pursuant to the public notice issued a large number of selected candidates i.e. 45 have joined in the present writ petition who have been impleaded as respondent Nos. 11 to 55. Such candidates are represented by Sri N. Dutta, Sri AB Choudhury and Sri K.K. Mahanta, learned senior counsels; Sri B.D. Konwar, Sri M. Choudhury and Sri P.D. Nair, learned counsels. They have been heard. We have also heard Sri Y.S. Mannan, learned counsel for the petitioners; Sri B.M. Choudhury, learned counsel for the respon dent No. 10 and above all, Sri K.N. Choudhury, learned senior counsel appear ing on behalf of the Commission.

23. Sri Mannan, learned counsel for the petitioners has submitted that the two affida vits filed by the respondent No. 10 along with the UO Notes dated 12.6.2009 and4.7.2009 clearly indicate that gross anomalies had taken place in the conduct of the written ex amination by the Commission for which rea son the impugned selection as a whole should be set aside. Pointing out the two affidavits of the Commission, Sri Mannan has argued that it has been virtually admitted by the Commis sion that the final select list dated 15.6.2009 has been prepared without adhering to the principles of horizontal reservation introduced by the women reservation act. In fact, the said list has been prepared by treating the reservation provided by the said Act to be a vertical reservation. Consequently, according to Sri Mannan, more that 50% of the adver tised posts have been made available to the reserved category candidates which is against the mandate of the law laid down by the Apex Court that reservation, in any case, cannot exceed 50%. Sri Mannan has also pointed out that notwithstanding the corrections sought to be made by the Commission, adherence to the rule of maximum permissible reservation require 53 posts to be earmarked for the open category whereas in the present case only 51 of the total posts advertised have been so earmarked. Such an error is sought to be continued by the Commission, it is ar gued.

24. Sri N. Dutta, learned senior counsel appearing on behalf of some of the selected candidates including one Ms. Pinkumoni/Gogoi (who according to the Commission is liable to be excluded from the correct select list), has submitted that inclusion of the afore said candidate in the select list and the offer of appointment given to her on that basis are facts that ought not to be ignored by the Court while formulating the eventual relief to be granted in the writ petition. The candidates are in no way responsible for what had hap pened. In this regard, it has also been argued by Sri Dutta that the selection and appoint ment of Ms. Pinkumoni Gogoi is not under challenge in the writ petition. There is no alle gation against the said candidate. Sri Dutta has also submitted that the corrected exer cise as indicate in the affidavit has not been performed by the Commission. In fact, Sri Dutta has drawn support from the stand taken by Sri Sasadhar Nath, respondent No. 10 that the Commission had not been involved at any stage in undertaking the aforesaid ex ercise. Therefore, according to Sri Dutta, no leave as sought for in the affidavit of the Com mission can be granted by the Court. Sri Dutta has further pointed out that in view of the ille galities and irregularities that had now surfaced with regard to the application of the principles of vertical and horizontal reserva tion, the next course of action is to be de cided by the Commission in the light of avail ability of the power of review to effect cor rections in the final select list already published.

25. Sri A.B. Choudhury, learned senior counsel appearing on behalf of some of the selected candidates including respondent Nos. 7 and 8 has raised serious objections with regard to the role and conduct of the respon dent No. 10 in taking the particular stand in the case as already noticed. Sri Choudhury has urged that the writ petition is inordinately delayed, inasmuch as, the result of the writ ten test was declared in the month of Decem ber, 2008 whereas the writ petition has been filed in the month of August, 2009. No ex planation for such delay has been offered. Sri B.D. Konwar and Sri N. Choudhury, leaned counsels appearing on behalf of some other selected candidates have adopted the argu ments advanced by Sri N. Dutta and Sri A.B. Choudhury. So has Sri P.O. Nair, learned counsel for another set of selected candidates who, however, has additionally pointed out that the select list does not contain any waitlisted candidate. In this regard, Sri Nair has pointed out that if the corrected select list is to be published the said fact should be kept in mind as some candidates may not be will ing to join in the posts that they may be of fered to them at this belated stage.

26. Sri K.N. Choudhury, learned senior counsel for the Commission has fairly submitted that the perception of the Commission with regard to the principles of law governing horizontal and vertical reservation at the time of finalizing the list of candidates eligible for interview as well as at the time of finalization of the select list was erroneous. Subsequently, the Commission has understood the correct purport of the law laid down by the Apex Court in Indra Sawhney, Anil Kumar Gupta and Rajesh Kumar Daria (supra). Accord ingly, an exercise of correction was under taken which had revealed that all candidates who were required to be called for the inter view were actually so called though their names were included in categories other than those in which they ought to have been in cluded. Sri Choudhury has pointed out that taking into account that by re-arrangement of the names of the candidates called for the in terview in proper categories and by taking into account the marks secured by them in the interview it is still possible to salvage the situation. As indicated in para 9 of the affidavit only four candidates will go out and four others will come in their place and in cases of ten candidates the categories of posts for which they have been selected will have to be altered. Sri Choudhury has accordingly submitted that the Public Service Commis sion should be allowed to undertake and com plete the necessary corrective steps which will be conducive to larger public interest.

27. In so far as the issue with regard to the conduct of the written examination is concerned, Sri Choudhury has submitted that correction of marks of some candidates were made by the head examiner in accordance with the prevailing norms and procedure and unless such corrections are demonstrated to be for oblique, extraneous or corrupt reasons, the Court should not come to any conclusion adverse to the Commission. Sri Choudhury has further pointed out that the stand taken by the respondent No. 10 in the mater ought not to be scrutinized by the Court on the law laid down by the Court in Bihar Public Ser vice Commission & Anr. Vs. Dr. Shiv Jatan Thakur (supra).

28. We have given our most anxious con sideration to the facts of the case, the issues arising therefrom as well as the elaborate sub missions advanced by the learned counsels for the contesting parties.

29. In so far as the issue with regard to the conduct of the written examination is concerned, provisions have been made in the Assam Public Service Commission (Proce dure and Conduct of Business) Rules, 1986 laying down the norms which are required to be followed for conduct of the written ex amination and the interviews. Rule 31,34,36, 37,38,39,40,41 and 42 being relevant, are extracted hereinbelow:

"31. The Secretary shall subject to approval of the Chairman prepare a list of the persons suitable to be appointed as Invigilators and Supervisors and shall appoint them as such. Provided that invigilators of the outstation Cen tres maybe appointed by the Supervisors con cerned in consultation with the representatives of the Commission deputed for the purpose

34. Ordinarily 3 weeks time shall be allowed for return of assessed answer books by the Examiners, but the Commission may in special circumstances and on a request made by the examiner extend the time to a reasonable pe riod.

36. The Controller of examination or the officer-in-charge as the case may be shall in con sultation with the Chairman take step for tabu lation of marks as soon as scrutiny of scripts, removal of discrepancies, removal of variations and correction if any have been done.

37. The Commission may cause random checking of the tabulation to ensure correct ness and accuracy of tabulation as well as as sessment of answer books.

38. As soon as the tabulation is completed and thoroughly checked by the office and the Commission as provided for in the above rules the Controller/Officer in-charge shall submit the result before the Commission in the form and manner to be prescribed by the Commis sion to decide how many candidates are con sidered fit for being admitted to personality test/interview.

39. It shall be the responsibility of the Contrailer of examination/Officer in-charge to en sure correct tabulation of marks and correct restoration of original Roll Number of candi dates.

40. The Commission shall decide the num ber of candidates to be called for interview be fore a Board or Boards on any day.

41. When on each day after the interview is over and marks are awarded to each candidate the mark-sheet prepared shall be placed in sealed covers and will be kept by the Chair man.

42. The mark-sheets so obtained shall be opened on the last day of the interview or im mediately thereafter and the marks of interview/personality test in a competitive examination shall be added to the marks obtained by the candidate in the written examination. Thereafter on the basis of totals so obtained the merit list shall be prepared and placed before the Com mission for final declaration of the result:

Provided that the Commission may with a view to eliminate variation in the marks awarded to candidate on any examination or interview adopt method, device or formula which they consider proper for the purpose."

30. In addition to the elaborate procedure for evaluation of answer scripts of the written examination and the manner in which inter views are to be held, the proviso to Rule 42 of the aforesaid Rules empower the Com mission to adopt any method, device or for mula as may be considered proper in order to eliminate variation of marks awarded to a candidate in any examination or interview.

31. In order to explain the precise proce dure that was adopted in the conduct of the written examination, an affidavit has been filed by the Controller of Examination on 13.8.2009 stating that after the answer scripts are received from the respective examiners, subjectwise scrutiny of the said answer scripts is required to be carried out. Such scrutiny is to be done initially by the scrutinizers and, thereafter, by the head examiner engaged for a particular subject. In the affidavit filed, it has been stated that the entire process of scru tiny is to take place in the office of the Com mission and in the course of such scrutiny apart from ascertaining as to whether all the answers give have been evaluated and whether the totaling of the marks is correct, the scrutinizers and thereafter the head examiner(s) also un dertake an exercise to find out whether any candidate has been awarded high/low marks. It has been further stated, in the affidavit filed, that if anomalies on any of the aforesaid counts is found by the scrutinizer the matter is brought to the notice of the head examiner who either removes the anomalies detected by making the necessary corrections or such task, at times, is performed by the scrutinizer himself under the instructions of the head ex aminer. The Controller of Examination in the affidavit filed has further stated that the above procedure had been followed in the instant Combined Competitive (Main) Examination conducted by the Commission.

32. After due consideration of the state ments made in the affidavit dated 13.8.2009 filed by the Controller of Examination, the Court had also insisted on the personal ap pearance of the Controller. Accordingly, the Controller had personally appeared before the Court and had made a statement that scru tiny of all the answer scripts and reference to the head examiner, where the same was con sidered necessary, had been done. The Con troller had also stated before the Court that the aforesaid practice has been in vogue in the Commission for long.

33. In matters pertaining to conduct of ex aminations either for recruitment to public service as also in the case of examinations conducted by an University, the role of the Court normally is minirnal. The Courts are not to act as appellate bodies in such matters. Neither the Judges should assume the role of super examiners. In the absence of any strong compulsion the Courts will not undertake a review of the actions of the scrutinizers and head examiners in allowing higher or lower marks to any particular candidate. The Court will also not carry out a review of the entire process to find out whether similar exercise of increase or decrease of marks should have been done in case of all candidates. In the present cases the materials on record includ ing the statement made by the Controller before the Court sufficiently indicates that all the answer scripts had been subjected to scru tiny and reference to the head examiner, when considered necessary, were made. Conse quently, any review of the process is bound to result in a roving enquiry which must be avoided. That apart, the Court does not pos sess the necessary expertise in matters of evaluation of answer scripts. Such a task, therefore, must be left to the experts in the field.

34. In the present cases, a process con templated by the Rules had been undertaken by the body entrusted with the task. Unless specific instances are brought to the notice of the Court to show that the actions undertaken are vitiated by malafides or such actions are demonstrated to be prompted by extraneous or corrupt reasons, interference of the Court will not be justified. A process of scrutiny of the answer scripts and in appropriate cases re-examination of the answer scripts by the head examiner takes place in any examina tion. Such steps are an integral part of the attempt to objectively decide the merit of the candidates and, therefore, must be allowed. A possibility of abuse inherent in the process without actual proof thereof cannot be a ground for judicial review of the decision making process. In the present cases, the al legation based on the U/O Note of the re spondent No. 10 is that the head examiner had re-examined only 10% of the answer scripts. Doubt, therefore, has been raised with regard to the validity of the marks secured by the remaining 90% of the candidates. The materials laid before the Court decisively in dicate that all the answer scripts were scruti nized by the scrutinizers and only those which were felt necessary to be placed before the head examiner(s) were so placed. Such ac tion can hardly be faulted on the premise that only 10% of the answer scripts came to be placed before the head examiner.

35. This will bring the Court to a consid eration of the stand taken by the respondent No. 10, Dr. Sasadhar Nath, a sitting Mem ber of the Commission. By order dated 13.8.2009 passed in M.C. No. 2123/2009 the prayer made by some of the selected can didates for striking of the name of Dr. Nath from the list of respondents has been refused by this Court on the grounds and reasons as signed in the said order dated 13.8.2009. In the said order it has also been held by this Court that Dr. Nath has not challenged any action of the Commission so as to attract the bar imposed by the law laid down by the Apex Court in Bihar Public Service Commission & Ors. Vs. Dr. Shiv Jatan Thakur & Ors. (su pra). The respondent No. 10, Dr. Nath, had circulated the U/O Note dated 12.6.2009 highlighting certain illegalities/irregularities in the conduct of the main written examination. The said U/O Note has formed the basis of a major part of the pleadings in the writ peti tions, particularly, in so far as the conduct of the written examination is concerned. In such circumstances, Dr. Nath, was made a party respondent in the writ petition. In response, he has filed two affidavits explaining what had happened. The aforesaid action has been stated to be prompted by the need to bring about essential reforms in the conduct and performance of duties by the Commission. The facts stated by the respondent No. 10 being relevant and vital to the credibility of the Commission, in our considered view, the same should not be ignored on the basis of the plea advanced and, instead, the said facts, according to us, should receive due consid eration of the Court keeping in mind that proper conduct of examinations by the Com mission is vital to instill public confidence in the institution. We, therefore, propose to ex amine the facts stated by the respondent No. 10 in the affidavits filed.

36. Adoption of a higher ratio to deter mine the number of candidates who had quali fied to sit in the main examination and adop tion of the ratio of 1:4 to call candidates for the interview, in a situation where there are no laid down norms in this regard, cannot be allowed to vitiate the selections held. Calling of more candidates by itself will not be fatal as long as the candidates eligible to be called had been issued call letters. This aspect of the matter will be dealt with in a little more details in the discussion that will follow on the next issue arising in the case.

37. The facts pointed by the respondent No. 10 with regard to the holding of the written examination particularly, the role of the scrutinizers and head examiner(s) has already been dealt with by this Court in a preceding part of this order. In the absence of any posi tive proof forthcoming to the effect that the supervisor(s)/head examiner(s) had con ducted themselves on extraneous grounds and reasons, no adverse conclusion can be drawn merely because the scrutinizers/head examiners had increased or decreased the marks in some cases.

38. The manner of evaluation of the can didates in the interviews held as highlighted by the respondent No. 10 in the affidavits filed; the allotment of marks to the Advisor and the parameters governing award of such marks as well as the issue with regard to the qualifications of the Controller and Assistant Controller of Examination are matters to be dealt with by the appropriate authority in the course of such action as may be considered necessary to improve the functioning of the Commission. The Court cannot have any role in such matters.

39. Having dealt with the issues highlighted by the respondent No. 10, we must observe that the respondent No. 10 was a party to the decision to publish the final select list which was taken on 15.6.2009. The respondent No. 10 had also participated in the conduct of the interviews. The fact that the respondent No. 10 had not raised any voice of dissent at any earlier stage of the proceedings is another sig nificant fact that cannot be ignored by the Court. Notwithstanding the above we have deemed it necessary, in public interest, to deal with the issues contained in the U/O Notes and the affidavits of the said respondent and record our findings thereon.

40. This will bring the Court to a consid eration of the issue with regard to the hori zontal and vertical reservation. The aforesaid two concepts have been succinctly explained by the Apex Court in Rajesh Kumar Daria (supra). Para 9 of the judgment which clearly lays down the purport of the aforesaid two concepts of reservation may be usefully extracted hereinbelow:

"9. The second relates, to the difference be tween the nature of vertical reservation and horizontal reservation. Social reservation in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are "horizon tal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their num ber will not be counted against the quota re served for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competi tion vacancies, equals or even exceeds the per centage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition cat egory. (Vide Indra Sawhney, R.K. Sabharwal Vs. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong t the special reserva tion group of Scheduled Caste women." If the number of women in such list is equal to our more than the number of special reservation quota, then there is no need for further selec tion towards the special reservation quota. Only if there is any short fall, the requisite num ber of Scheduled Caste women shall have to be taken by deleting the corresponding num ber of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from ver tical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reserva tion for women."

41. The Apex Court in Rajesh Kumar Daria (supra) had also taken note of the following observations in the judgment in Indra Sawhney (supra):

"All reservations are not of the same na ture. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal res ervations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes [under Article 16(4)] maybe called vertical reservations whereas reserva tions in favour of physically handicapped [un der Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reserva tions cut across the vertical reservations- what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appro priate category; if he belongs to SC category he will be placed in that quota by making nec essary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of res ervations in favour of Backward Class of citi zens remains-and should remain-the same."

42. The observations of the Apex court in Anil Kumar Gupta (supra) [para 18] quoted with approval in Rajesh Kumar Daria (supra) may also be extracted hereinbelow:

"18. Now, coming to the correctness of the procedure prescribed by the revised notifica tion for filling up the seats, it was wrong to direct the fifteen per cent special reservation seats to be filled up first and then take up the OC(merit) quota (followed by filling of OBC, SC and ST quotas). The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., SC, ST and BC; the third steps would be to find out how many can didates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already sat isfied-in case it is an over all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of spe cial reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of can didates therefom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be ap plied separately to each of the vertical reserva tions. In such a case, the reservation of fifteen per cent in favour of special categories, over all, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contribute partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the OC quota."

43. The law laid down by the Apex Court in the aforesaid cases has clearly and categori cally laid down that reservation for women is a horizontal reservation and is not over and above the vertical reservation provided to different categories like S.C, S.T. O.B.C. etc. Under the Reservation for Women Act of Assam, 30% of the posts are reserved for women within each category i.e. open, S.C., ST., O.B.C. etc. In the event the select list prepared on the basis of merit for each cat egory already includes the requisite number of women candidates no further exercise is required to be performed. However, if there is a shortfall of women candidates in order of merit will replace the last of the male candi dates. This is the essence of the application of the law relating to reservation under the Reservation for Women Act of Assam.

44. What was done by the Commission in the present case is that 30% out of the posts earmarked in each category i.e. open, S.C., S.T., O.B.C. etc. were kept open for com petition amongst women candidates only be longing to each of such categories. The remaining 70% of the posts in each category was open to all including female candidates. The list of candidates eligible for interview and the final select list of successful candidates was prepared on that basis. What was, therefore, adopted in order to give reservation to women under the Reservation for Women Act is the principle of vertical reservation thereby rais ing the limit of reservation beyond the consti tutionally permissible 50%. Such action be ing contrary to the law fiid down by the Apex Court, as noticed above, undoubtedly the fi nal select list dated 15.6.2009 is vitiated and has to be set aside. The question that con fronts the Court is whether the Commission should be permitted to re-do the exercise on the basis of the interviews already held or whether the entire process should be directed to re-commenced from the stage of interview.

45. Certain facts which will be relevant for a just decision on the above issue highlighted may now be usefully recapitulated:

i) The candidates eligible to be called for interview, upon application of the correct le gal principles and parameters, had been so called though such candidates were placed in categories other than which they were entitled to be placed, as for example, a candidate eli gible to be called as a open category candi date was actually called as a OBC/MOBC candidate.

ii) The marks secured by the candidates in the written test were not before the inter view board.

iii) Though excess candidates had been called for the interview, 113 out of 116 candidates who will get selected upon applica tion of the correct norms and parameters are amongst the 464 candidates who should have been called on the basis of the 1:4 ratio.

The remaining three are ST(P) candidates who will make it to the final select list on the basis of the quota available to them.

iv) None of the excess candidates called for the interview for any of the categories did figure in the final select list already published.

v) If realignment upon repetition of the ex ercise by application of correct parameters is to be done, 4 candidates out of 116 al ready selected will have to be excluded and in their place 4 other candidates will come in. In case of 10 candidates there will be a change of the category of posts in which they have been offered appointment.

46. The role of the Court in such matters must be a constructive one. The power to nullify is a drastic power which must be re served to be exercised when reconstruction is not possible. To the extent reconstruction is possible without offending the rights of the persons involved, the Court must always lean in favour of such a course of action. In the present cases, the materials on record clearly establish that all candidates who were required to be interviewed upon application of the cor rect principles and parameters of the law re lating to reservation had actually faced the interview though as candidates of some other category. The marks of the written test were not available to the members of the interview board. The exercise, if re-done by applica tion of correct parameters, will have minimal effect as already indicated and as stated in para 9 of the affidavit of the Commission dated 10.8.2009. The Court, therefore, would be inclined to lean in favour of permitting the ex ercise to be re-done subject to our views on the objections .raised in this regard by the learned counsels for the selected candidates

47. A point has been raised that the result/consequences indicated by the Commission in para 9 of the affidavit dated 10.8.2009 does not reflect the view of the Commission as the matter is yet to be placed before the Commission. Naturally, any further exercise in the matter will have to be performed by the Commission as a body after a detailed ex amination of all aspects of the matter to en sure that no further errors creep in. In other words, the minimal impact of the de novo exercise, as claimed in the affidavit of the Commission, will have to be verified and ap proved by the Commission as a body.

48. An argument has been advanced that if the select list dated 15.6.2009 is to be set aside, the Commission will not have any power to review the names of the selected candidates in order to effect any alterations therein. Emphasis in this regard has been laid on the absence of any expressed power of review in the Commission. The argument is self-defeating. If the select list dated 15.6.2009 is to be set aside by this Court, further course of action in accordance with law must be left to the discretion of the Com mission. Furthermore, as held by the Apex Court in R.R. Verma & Ors. Vs. The Union of India & Ors., (AIR 1980 SC 1461), the absence of an expressed power of review will not come in the way of review of a adminis trative decision.

49. The legal right of the four candidates mentioned in para 9 of the Commission's affidavit dated 10.8.2009 who, according to the Commission, will not be entitled to be in cluded in the select list upon application of the correct principles and parameters of law may now be considered. The selection of the aforesaid four candidates being contrary to the law laid down by the Apex Court with regard to horizontal reservation, cannot vest in any of such candidates, a legal right to insist that their names should continue to remain in the list of selected candidates. The aforesaid four persons were not initially parties to the writ petition but three of them have subse quently impleaded themselves as respondent Nos. 8,28 and 51 in the writ petition pursu ant to the notice issued by this Court. The aforesaid persons, therefore, are parties to the writ petition who have also participated in the hearing. Therefore, there cannot be any legal impediment to their exclusion from the list of selected candidates if such exclusion is justified on application of the correct prin ciples of law.

50. An argument has been advanced on behalf of the petitioners that out of the 116 posts advertised even if the 11 backlog va cancies are excluded. 105 posts will remain in the fray to which posts the maximum limit of permissible reservation will be applicable. In that event, at least 53 posts have to be allowed to the open category candidates whereas, admittedly, the Commission has earmarked 51 posts for the open category candidates. The point has substance and can not be ignored on the ground that the varia tion is marginal. Even marginal deviations from an established constitutional principle cannot be tolerated in a system governed by the Rule of law. The action of the Commis sion in earmarking 51 posts for the general/open category candidates, therefore, is not sustainable.

51. All relevant facets of the cases having been discussed elaborately, we now deem it proper to reach the conclusion that the writ petitions should be partly allowed. The select list dated 15.6.2009 is set aside leaving it open for the Commission to take further steps in the matter in the light of the observations and findings recorded in the present order and the law laid down by the Apex Court in the decisions referred to herein.

52. Having regard to the facts and circum stances of the case, we are of the view that the parties should be left to bear their respec tive costs.

B. K. Sharma, J.:-

53. While agreeing with the findings and conclusions reached by his Lordship Hon'ble Mr. Justice Ranjan. Gogoi, Chief Justice (Act ing) in the judgement, I would like to give vent to my thoughts generated in my mind on pe rusal of the materials on records and upon hearing the learned counsel for the parties.

54. My Lord's opening passage of the judgement highlighting the erosion of public confidence in the APSC over the years is an apt and timely observation. There is no gain saying that an Institution like APSC must be the repository of public confidence. Once the confidence is shaken, even the right direction of functioning will be doubted. Such is the importance of public confidence in APSC that the people often question the credibility of its members on whom the credibility of an Insti tution like APSC largely depends. It has rightly been observed that people of exemplary con duct, exceptional ability and utmost integrity, who share a serious concern for maximum public good should alone be inducted into such a body. Often it is seen that members of APSC are inducted on extraneous consider ation possessing qualification other than those.

55. Much was debated during the course of hearing regarding the role of the respon dent No. 10, who is a sitting member of the APSC. It was also suggested that he being not a necessary party, his name should be stuck off as respondent. It was also submit ted, upon a reference to the decision of the Apex Court in Bihar Public Service Com mission Vs. Dr. Shiv Jatan Thakur reported in 1994 Supp(3) SCC 220 that the respon dent No. 10 cannot be allowed to question the very selection of which he was a party. We, by our order dated 13.8.2009 passed in MC No. 2123/2009, have overruled the plea on the ground assigned in the order. We have also heard him in person.

56. In the counter affidavits filed by the said respondent No. 10, certain disturbing revelations have been made. In his affidavits he has enclosed two U.O. notes dated 12.6.2009 and dated 4.7.2009 addressed to the Secretary, APSC. He has also enclosed the letter dated 22.6.2009 addressed to the Secretary, APSC by another sitting member. The contentions raised in the said two affida vits and the U.O. notes, have been generally discussed in the judgement. It is really dis turbing that a sitting member of the APSC has to state about the allegations that there exists some rackets of brokers or agents inside and outside the APSC.

57. One significant aspect of the matter as highlighted by the said member is that the can didates were required to furnish their tele phone/contact numbers in the prescribed col umn of the application forms for the main com bined competitive examination, 2006. There was no such provision for providing phone number by the applicant in the application form for the preliminary examination but such a provision was made for the main examina tion. It is in this context, the said member has alleged that the availability of the phone num bers in the application forms possibly has link ages to the allegations of corrupt practices.

58. The respondent No. 10 has also pointed out the alleged illegality in raising the marks in the answer script of respondent No.7, stated to be a relation of Controller of Examination, APSC i.e. the respondent No.6.

59. Allegation regarding awarding extra marks to the respondent No.8, another candidate has also been made. The respondent No. 10 has also questioned the very basis of addition of marks by the Head Examiner. In this connection, he has referred to the provi sions of the Assam Public Service Commis sion (Procedure and Conduct of Business) Rules, 1986. According to him, there is no provision in the rules for revaluation of the answer scripts by the Scrutinisers or by the Head Examiners.

60. Further allegation made by the said member is that in some answer scripts, marks were reduced by the Scrutinisers or Head Examiners, which according to him had the potential of two fold objectives, (i) to reduce the marks to remove some candidates from the run in the competition of inter se merit and (ii) to reduce the burden of adding extra marks for the entitled candidates for securing slots in the select list as addition of a large figure of extra marks would require handling of many questions of many scripts that also with un reasonably high marks. According to him in one script bearing Roll No. 8578 (Code No. 171) as high as 3 5 marks were deducted from the marks given by the Examiner in History paper. Although, he had discussed and pointed out such discrepancies and anomalies but as per the affidavits filed by him, such discus sion was discouraged.

61. It is the belief of the respondent No. 10, that if deducted marks are reconciled and original marks given by the Examiners re stored, some candidates would secure slots in the select list. Further stand of the respon dent No. 10 is that if the extra marks added are eliminated and the original marks given by the examiners restored, the actual successful candidates would remain in the select list with their actual inter se merit.

62. In the additional affidavit filed by the said respondent No. 10, he has enclosed the letter dated 22.6.2009, addressed to the Secretary, APSC by another member. As per the said letter, there was news item to the effect that while evaluation/revaluation was carried out by one Science Teacher as Head Examiner, he was asked to examine answer scripts of Arts subject. Whether such are-port was correct or not was requested to be enquired into to find out the truth. Al though, the letter was written on 22.6.2009 but no action seems to have been taken by the APSC and it was only amidst the hear ing of the case, certain loose sheets terming the same to be the records, had been produced, indicating furnishing of notes etc. in the month of August, 2009, mentioning therein that enquiry was carried out, which revealed that the news report was incorrect. As to what caused the delay to immediately show response to the said letter dated 22.6.2009 considering the seriousness of the matter, is not discernable. It is only after fill ing of the additional affidavit on 5.8.2009, enclosing the said letter, the APSC reacted to the same by preparing office notes there after in loose sheets, terming the same to be the records of the APSC.

63. In the U.O. No. 1 dated 12.6.2009, the respondent No. 10 pointed out the purported anomalies relating to revaluation of the answer scripts by the Scrutiniser and or the Head Examiner, so as to reduce and or in crease the marks already awarded by the Examiner. In his further U.O. No.1 dated 4.7.2009, he has indicated that the marks reduced by the Scrutiniser/Head Examiner from the earlier marks awarded by the examiner in respect of five candidates. The can didate bearing Roll No. 8578 secured 846 marks (including viva marks). It is the revela tion made by the said member that in case of the said candidate, 35 marks were deducted at the stage of scrutiny. The original total marks secured by the said candidate was 881 but after such deduction, it was reduced to 846, falling short by 3 marks below the Roll No. 38546 (885 marks), who secured a slot of un-reserved vacancy in the select list in the category of Inspector of Labour.

64. Another significant aspect of the mat ter relating to increase and decrease of marks in the answer scripts as has been revealed by the respondent No. 10 is that out of the two Head Examiners, one had the mind set of increasing by addition while the other of reducing (by deduction of marks).

65. In the U.O. letters dated 12.6.2009 and 4.7.2009, many other anomalies have been pointed out by the respondent No. 10 and it was urged upon the authority to re move such anomalies so as to maintain trans parency in the matter of selection by the APSC. Some other aspects of the matter highlighted by the said member have been discussed in the judgement.

66. The Controller of Examination was generally questioned in respect of the revaluation of the answer scripts by the Scrutiniser/Head Examiner. He in his statement stated about revaluation of answer scripts totalling to around 500 and odd with the reason as signed for such re-evaluation. When he was asked to reduce such statement in the form of an affidavit, he filed the affidavit on 13.8.2009 with the statement that after the answer scripts are received from the respec tive examiners, the answer scripts are arranged subject-wise in the office of the Commission. Thereafter, the procedure of scrutiny begins for each subject. One Head Examiner is en gaged by the Commission and depending upon the number of answer scripts, adequate number of Scrutinisers are also engaged. The Scrutinisers scrutinised all the answer scripts subject wise to find out the following :-

"a) Whether the candidate has been awarded marks in respect of all the questions he/she has answered ?

b) whether the totalling of the marks is cor rect?

c) whether the candidate has been awarded high/excess marks ?

d) whether the candidate has been awarded low marks?"

67. The affidavit further states that if the Scrutinisers find any of the aforesaid anomalies in any of the papers, the same is brought to the notice of the Head Examiner and then in consultation with the Head Examiner; the said anomalies are corrected either by the Head Examiner or by the Scrutiniser himself, under the instruction of the Head Examiner. Thereafter, mark sheet of the candidates are prepared and the tabulation is done. How ever, the affidavit is silent on assigning rea sons for re-evaluation by the Scrutinisers/Head Examiners. No records have also been produced.

68. According to the respondents, the aforesaid procedure adopted by the Com mission finds support from Rule 37 and pro viso to Rule 42, which are quoted below :-

"37. The commission may cause random checking of the tabulation to ensure correct ness and accuracy of tabulation as well as as sessment of answer books.

42. The mark-sheets so obtained shall be opened on the last day of the interview or immediately thereafter and the marks of interview/personality test in a competitive examination shall be added to the marks obtained by the candidate in the written examination. Thereafter on the basis of totals so obtained the merit list shall be prepared and placed before the Commission for final declaration of the result; Provided that the Commission may with a view to eliminate variation in the marks awarded to candidate on any examination or interview adopt method, device or formula which they consider proper for the purpose."

69. In the instant case, it is on record that in at least in some answer scripts final marks awarded by the Examiners were increased or decreased by the Scrutinisers/Head Examiners. Although, the Commission has re ferred to the above provisions so as to justify their action but such course of action adopted does not inspire the confidence of the Court. Transparency and fair play de mand a better methodology. After all the expert examiners are appointed subject wise. There is no guarantee that the particular as sessment made by the Scrutiniser and/or the Head Examiner, by way of revaluation is the better assessment than the assessment made by the expert examiners. The course of action adopted also makes room for doubt. This requires immediate attention of the Commission, so as to eradicate any amount of doubt. Normally, in the Univer sity examinations, the job of the Scrutiniser is to find out any omission in the evaluation by the Examiner, such as, wrong calculation of total marks, omission to evaluate any an swer etc. Normally, it is not the business of a Scrutiniser to pick up answer scripts to find out as to whether the Examiner has awarded high or low marks. Likewise, the Head Examiner's business is to supervise the scrutiny and his role is supervisory. But in the instant case, the Scrutinisers and Head Examiners were given free hands to increase or decrease the marks, already awarded by the expert Examiners. All these aspects of the matter need immediate attention of the APSC and for that matter, the authority at the helm of affairs.

70. The commission in its affidavits filed has not dealt with the anomalies pointed out in the affidavits filed by the respondent No. 10 but has questioned his credibility to question the validity of the selection made by the Commission, falling back on the de cision in Bihar Public Service Commission (supra). It is true that on the basis of the available materials, it is difficult to show that the actions undertaken are vitiated by malafides and/or is the product of extrane ous consideration and thus interference with the selection will not be justified. But at the same time, it needs to be emphasised that the particular procedure adopted is not a healthy procedure in an Institution like APSC. Further, although the respondent No. 10 has highlighted and has brought on record the purported anomalies and illegali ties committed in the selection but he, as a member of the Selection Committee, duly participated in the selection process and it was only at a latter stage, pointed out those illegalities and/or irregularities. This court cannot be oblivious of the said position of the respondent No. 10.

71. This court exercising the power of judicial review under Article 226 of the Constitution of India, cannot assume the role of the appellate bodies in such matters as has been observed in the judgement. Neither the Judges should assume the role of super examiner nor undertake any review of the actions undertaken by the APSC, howsoever, suspicious that may be. But at the same time the apprehensions expressed by the respondent No. 10, though in the realm of suspicion and cannot be said to be concrete within the parameters of judicial re view, cannot be altogether brushed aside as irrelevant.

72. The mistakes which the APSC has admitted in their counter affidavits also have the potential of eroding the credibility of the APSC in the public eyes. As a constitutional body, its primary duty is to conduct impor tant selections pertaining to public offices. If such a body commits such mistakes as has been admitted by itself, the general public is bound to raise accusing fingers which is not at all healthy sign in the fair name of APSC, which otherwise should have been the hall mark.

73. My observations made above are in tune with the observations made in the opening passage of the judgement. The APSC and the authority at the helm of affairs will do well to remove the general feeling that all is not well with the affairs of the APSC.

74. I part with the case records referring to Hary-R-Blythe's observations (cited in 21 Green Bag 224), which finds mention in AIR 1993 SC 1535 (J.S. Jadhav Vs. Mustafa Nazi). Although the observation is in the con text of cleansing the legal field from poison, but the same may not be altogether out of place in the present context, as the test for the members of the APSC and the Institu tion as a whole, as highlighted in the opening passage of the judgement is the same.

"Great God the hour has come when we must clear the legal fields from poisons and from fear ; We must remould our standards -built them higher, And clear the air as though by cleansing fire, weed out the damning trai tors to the law, Restore her to her ancient place of awe."