1. Heard Mr. A. Apang, learned counsel for the writ petitioner. Also heard Mr. R. H. Nabam, learned Senior Government Advocate, Arunachal Pradesh, for State respondents, Mr. N. Tagia, learned standing counsel for respondent Arunachal Pradesh Public Service Commission (APPSC) and Mr. A. K. Singh, learned counsel for private respondent No. 4.

2. An advertisement was issued by the Arunachal Pradesh Public Service Commission ('Commission') for filling up 2 Posts of Section Officer, Grade-B (Gazetted) in the Arunachal Pradesh Secretariat through Limited Departmental Competitive Examination. One post is reserved for Arunachal Pradesh Scheduled Tribe candidate ('APST candidate') while the other post kept unreserved for General Candidates. The Assistants of Arunachal Pradesh Civil Secretariat ('Secretariat') who have rendered 6 years of regular service in the grade are eligible to apply for the said post in prescribed format. The selections are to be made on the basis of marks secured in the written examination. The written test was held on 28th and 29th of June, 2008, and the result of the written test was published on 15.9.2008 wherein the petitioner's name appeared at Serial No. 2. The candidates who passed the written test were required to appear in the viva voce test scheduled to be held on 23.9.2008 which was postponed by a press release dated 23.9.2008 issued by the Commission. The Commission published another revised result by its notification dated 23.9.2008 indicating the date of viva voce test to be held on 26.9.2008 by adding 3 more names in the list of General Category including the name of private respondent No. 4, Sri Roman Bora, whose name did not figure in the earlier Notification dated 15.9.2008. The viva voce test was held on 26.9.2008 and the result was declared on the same day. The petitioner also appeared in the said test. Thus, in the result Notification dated 23.9.2008, as many as 6 candidates were recommended against one post in the unreserved/general category. The names of private respondent No. 4 and petitioner have been placed at Serial Nos. 6 and 9 respectively.

3. The appointment to the Post of Section Officer, Group-B (Gazetted), is governed by "The Arunachal Pradesh Secretariat Recruitment to the post of Section Officer, Rules, 2004 ('Rules of 2004'). As per provisions thereunder, 50% per cent of the posts is required to be filled up by promotion and the other 50% of the posts is required to be filled up by Limited Departmental Competitive Examination from amongst the Assistants of Arunachal Pradesh Secretariat who have rendered 6 years of regular service in the grade on the basis of merit adjusted from the subjects namely: - (a) General Knowledge (b) General English/Noting/Drafting Essay writing (c) FRs/SR/GFRs/Pension Rules/CCS(CCA) Rules/General Provident Fund Rules (100 marks in each subjects) and (d) viva voce (50 marks).

4. The State Government issued an Office Memorandum No. 54/2006 dated 7.1.2008 signed by the Secretary (AR), Government of Arunachal Pradesh, providing that candidates securing a minimum of 33% or more marks in each written paper and securing 45% of marks out of aggregate total marks in the written examination papers, shall be eligible for viva voce. It is specifically provided therein that candidates securing less than 33% of marks in any of the written examination paper, shall not be eligible for appearing in the viva voce test. The respondent No. 4 secured only 29 marks out of 100 marks in the written test in the Subject of FRs/SRs/GFRs/Pension Rules, etc., whereas the petitioner secured more than 33% in all the subjects of written examination. The Secretary to the Commission, before declaring the results, addressed a letter dated 26.8.2008 to the Secretary (AR) seeking clarification as to whether the Limited Departmental Examination conducted for the purpose of recruitment of Section Officer shall attract the provisions of Government O.M. dated 7.1.2008 under which a candidate is

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