Point of Law : Entertaining such a challenge would lead to a consequence that the rules of games are being changed after the ball is set into motion – Such a course of action is impermissible in law.

JUDGMENT :

1. Heard Mr. U.K. Nair, learned senior counsel, assisted by Mr. D.P. Borah, Advocate, representing the appellant, Smti. Dipti Mali, in WA No. 79/2018; Mr. B. Chakraborty and Mr. H. K. Baishya, learned counsel representing the private respondent No. 1; Mr. R. K. Borah, learned Additional Senior Government Advocate, Assam, representing respondent nos. 2 and 5; and Mr. P.P. Dutta, learned Standing Counsel, APSC, representing respondent nos. 3 and 4.

In WA No. 72/2019, heard the submissions of Mr. P. P. Dutta, learned Standing Counsel, APSC representing the appellants; Mr. B. Chakraborty and Mr. H. K. Baishya, learned counsel representing respondent no. 1; Mr. R. K. Borah, learned Additional Senior Government Advocate, Assam, representing respondent nos. 2 and 3 and Mr. U. K. Nair, learned senior counsel, assisted by Mr. D.P. Borah, Advocate, representing the respondent no. 4 (proforma respondent).

We have also gone through the impugned judgment and other material placed on record of both the appeals.

2. These two intra-Court writ appeals are directed against the judgment and order dated 23.08.2018, passed by the learned Single Judge, whereby WP(C) 4848/2015 preferred by the respondent/writ petitioner Dr. (Mrs.) Mausomi Madhab was accepted and the respondents Assam Public Service Commission (APSC) and the State Government were directed to consider the case of the writ petitioner for appointment under the Assam Police Service over and above the selection of the respondent no. 5 therein.

3. It may be noted that the said direction given by the learned Single Judge vide the impugned judgment was stayed by the Division Bench Court by order dated 27.03.2018, passed in WA 79/2018 and, as a consequence, the appellant, Smti. Dipti Mali, continues to serve in the Assam Police Service pursuant to her selection in the questioned selection process held in the year 2014.

4. The controversy presented for adjudication by this Court can be encompassed in a very brief frame as below:

The appellant in WA 79/2018, Smti. Dipti Mali, and the respondent/writ petitioner, Dr. (Mrs.) Mausomi Madhab, being candidates of SC (Female) reserved category, participated in the Combined Competitive Examination undertaken by the APSC in the year 2013 pursuant to the advertisement dated 11.08.2013 for filling up 241 posts in ten categories of Assam State Services. The following conditions incorporated in the advertisement are the bone of contention between the litigating parties:

“(II) MAIN EXAMINATION:

(B) (f) The candidates will be allotted Cadre strictly on the basis of merit cum preference opted by the candidates in their applications for the Main Examination.

(g) The Commission shall not recommend a candidate for a post which he/she has not opted for.”

In the application form submitted for the competitive examination, the appellant Dipti Mali selecected “APS (Jr. Grade)” as her 2nd option in the order of preference amongst the categories of posts, whereas the respondent/writ petitioner Dr. (Mrs.) Mausomi Madhab chose “APS (Jr. Grade)” as her 9th option.

Pursuant to the written examination, while preparing the select lists for making recommendations, the options/ preferences given by the candidates were analysed, upon which it was found that the appellant, Dipti Mali, had given 2nd option in the order of preference to Assam Police Service (Jr. Grade) and she was recommended for the said service thereby filling up the available posts reserved for Scheduled Caste (Female) candidates. As a consequence, no vacancy remained available for the respondent, Dr. (Mrs.) Mausomi Madhab and, thus, she was not recommended for the Assam Police Service. As Dr. (Mrs.) Mausomi Madhab failed to secure selection in any of the categories of services despite having scored more marks in the written examination as compared to the appellant, Dipti Mali, she, i.e., Dr. (Mrs.) Mausomi Madhab approached this Court by way of the captioned writ petition seeking a direction upon the respondent