The re-fixation of cut off marks and adherence to reservation rules under the 2005 Act and 1970 Rules are crucial in determining the eligibility of candidates.

1. The learned Counsel Mr. S.K. Medhi appears for the petitioner. The respondents are represented by the learned departmental Counsel Mr. M.H. Ansari.

2. The matter pertains to selection and appointment to the post of Sub-Inspector of Food, Civil Supplies & Consumer Affairs (hereinafter referred to as the "SI, Food") and the plea of the unsuccessful candidate is to quash the Selection Committees decision made on 30.9.2009 (Annexure-E). The Committee found that the petitioner scored 88.5 marks in the written test, which was below the cut off mark, for the next viva-voce segment of the recruitment test.

3. The advertisement issued on 20.8.2008 (Annexure-A) invited applications for 145 posts of SI, Food and the learned Counsel Mr. S.K. Medhi refers to Clause 9 of the advertisement to project that cut off mark for appearing in the interview was never stipulated in the advertisement. As the petitioner was called for the viva-voce scheduled on 21.8.2009, through the communication dated 29.7.2009 (Annexure-D), the petitioner contends that the candidate should have been treated to have qualified in the written test and his candidature in the viva-voce segment should have been assessed on merit.

4. The petitioner also refers to his Answer Script (Annexure-G) furnished under the RTI Act, to contend that the candidate deserved at least 2/3 additional marks for giving the correct response to the multiple choice questions.

5. On the other hand, Mr. M.H. Ansari, the learned departmental lawyer refers to the Minutes of the Selection Committee, which met on 24.6.2009 to project that the cut off marks for various categories such as ST/SC/OBC/General for Male & Female candidates were finalized with due regard to the vacancies and the ratio of candidates. He further points out that for General Category Male candidate, 105 out of 150 was fixed as the cut off mark by the Selection Committee. However, this Court issued certain directions on 6.6.2011 in the WP (C) No.3283/2009 (Deepok Kr Das & Ors vs. The State Of Assam & Ors.) and on Courts order, the cut off mark was re-calculated and brought down to 102.5 (from 105), by the Selection Committee. Accordingly the departmental lawyer argues that the petitioner with his 88.5 marks in the written test, was mistakenly called for the viva-voce segment.

6. Before proceeding any further, it is important to take note of the fact that the petitioners Answer Script in original is produced by the departmental lawyer and it shows that the candidate had secured 88.5 marks out of the total 150 marks, in the written examination. Therefore, addition of 2/3 more marks to his tally will not make any difference to the fate of the petitioners performance, in the recruitment test.

7. It will bear considering that the High Court in its judgment dated 6.6.2011 in the WP (C) No.3283/2009 had issued the following direction to the State Authorities ;

"(i) Correctly apply the 30% reservation for women, inconformity with the provisions of the 2005 Act and in terms of the observations made herein above and to make the selection;

(ii) Re-fix the uniform cut off marks, both for male and female candidates;

(iii) Verify the marks secured by those 66 (sixty-six) candidates, on the basis of the marks awarded by the examiner, without, however, undertaking any exercise of re-evaluation of answer scripts;

(iv) Verify as to whether all the candidates appeared in the written test, who have secured the cut off marks, were called for viva-voce test, and thereafter;

(v) Call those candidates, who have secured the re-fixed cut off marks, by following the ratio of 1:8.67, who have not already been interviewed; and

(vi) Prepare and publish the select list on the basis of merit, as contemplated under 1970 Rules, taking into account both social and special reservation and to appoint the selected candidates accordingly, against the posts advertised.

In the event, because of the re-fixation of the cut off marks in the written test, it is found