Gauhati HC Dismisses Challenge to Assam Prosecution Service Select List, Holds Unsuccessful Candidates Barred from Questioning Process They Participated In
Four advocate-petitioners who sat for Assam’s Public Prosecutor recruitment viva-voce but failed to make the cut could not challenge the Select List or the evaluation methodology after results were declared, the Gauhati High Court ruled, dismissing WP(C)/281/2026.
The Gauhati High Court has dismissed a writ petition filed by four advocates — Devajani Gogoi, Abdul Rezzak, Unmona Borah, and Md. Amir Ali Khan — challenging the Select List dated 21 November 2025 published under the Assam State Prosecution Service Rules, 2023. The petitioners had applied for posts of Public Prosecutor and Additional Public Prosecutor, appeared in a proficiency-cum-skill test conducted through a viva-voce, and only moved the court after learning they had not been selected. The court held that candidates who participate in a selection process without protest and await its outcome cannot, upon finding the result unpalatable, turn around and assail the methodology of that very process. The court also examined the legality of the selection on merits and found no infraction of Article 14 or Article 16 of the Constitution.
The Selection That Triggered the Dispute
The State of Assam, exercising powers under the proviso to Article 309 of the Constitution read with Sections 24 and 25 of the Code of Criminal Procedure, 1973, framed the Assam State Prosecution Service Rules, 2023, notified on 7 December 2023. The Rules created a cadre of three posts — Public Prosecutor, Additional Public Prosecutor, and Assistant Public Prosecutor — to be filled substantially by direct recruitment through a Selection Board.
An advertisement was issued on 2 January 2024 inviting applications for 26 posts of Public Prosecutor, 88 posts of Additional Public Prosecutor, and 185 posts of Assistant Public Prosecutor. A total of 5,238 applications were received, of which 579 were rejected for reasons such as non-submission of draft or overage. Call letters were issued to 4,659 candidates.
Under Rule 19(ii) of the Rules of 2023, the Selection Board was empowered to devise a proficiency-cum-skill test through a viva-voce to assess candidates on drafting skills, analytical and presentation skills, mental agility, and quick grasp of arguments and judicial precedents. Rule 15 (as amended by the Assam State Prosecution Service (Amendment) Rules, 2024) permitted the State Government to constitute more than one Selection Board, each chaired by a retired High Court judge.
On 20 June 2024, the Governor of Assam constituted three Selection Boards. Board 1 was chaired by retired Justice Achintya Malla Bujor Barua; Board 2 by retired Justice Anima Hazarika; and Board 3 by retired Justice C.R. Sharma. Each board had, as members, a nominee of the Legal Remembrancer, the Secretary of the Home and Political Department, a nominee of the National Law University and Judicial Academy Assam, a nominee of the Advocate General, and an expert nominated by the respective Chairman.
How the Viva-Voce Was Structured
On 13 August 2024, all three Selection Boards held a joint meeting at Assam Administrative Staff College, Khanapara, to finalise a uniform evaluation methodology. They resolved that the viva-voce would carry 100 marks, sub-divided as follows: 70 marks for drafting skills, analytical and presentation skills, mental agility, and quick grasp of arguments and judicial precedents; 20 marks for personality and temperament; and 10 marks for overall academic performance, calculated as an average of marks obtained up to graduation and LLB.
Candidates were asked, through their call letters and notices published on the Home and Political Department’s official website, to bring before the Selection Board at least one copy of an application, petition, or appeal drafted by them and filed in a criminal proceeding, along with copies of judgments or orders in criminal matters in which they had personally appeared and argued. The number of judgments required varied by post category: six for Public Prosecutor, four for Additional Public Prosecutor, and three for Assistant Public Prosecutor.
The viva-voce for each candidate was to last 6 to 7 minutes, though the State disclosed in a rejoinder affidavit that candidates were in practice given 20 to 25 minutes, with some receiving 30 to 35 minutes. Of 4,659 candidates issued call letters, only 2,390 appeared. The interviews for the three categories were staggered: Public Prosecutor candidates were interviewed from 17 August to 5 September 2024; Additional Public Prosecutor candidates from 24 September to 23 December 2024; and Assistant Public Prosecutor candidates from 27 January to 8 April 2025.
On 21 June 2025, the three Selection Boards met jointly to amalgamate their respective merit lists. The Select List was published on 21 November 2025 — more than seven months after the last interview. Out of 299 advertised posts, 294 candidates were listed: 26 out of 26 Public Prosecutor posts, 87 out of 88 Additional Public Prosecutor posts, and 181 out of 185 Assistant Public Prosecutor posts were filled. Candidates selected for more than one post were asked to express their preference within seven days.
What the Petitioners Argued
The writ petition was filed on 7 January 2026 by the four petitioners. Three of them had participated in the viva-voce: Petitioner Nos. 1 and 2 had applied and appeared in two categories each; Petitioner No. 3 had applied and appeared in all three. Petitioner No. 4 had applied for the post of Additional Public Prosecutor but failed to appear in the viva-voce on 27 November 2024.
Senior Counsel Mr. K.N. Choudhury, appearing for the petitioners, made several arguments. The advertisement, he contended, did not disclose the marking scheme or the requirement to bring draft documents and judgments to the interview. Clauses 5 and 6 of the call letter instructions — requiring production of pleadings and court orders — ought to have formed part of the advertisement itself, especially given the mandate of Rule 19(iv) of the Rules of 2023 that a faithful record of the proceedings be maintained by the Selection Board. The documents collected from candidates during the viva-voce were returned and not retained, making it impossible to verify the basis of selection.
The petitioners also argued that the marking breakdown decided on 13 August 2024 — after the advertisement — amounted to changing the rules of the game midway. They relied on Supreme Court judgments in Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar & Another, (1994) 6 SCC 293; Nutan Kumari v. B.R.A. Bihar University & Others, (2024) 13 SCC 432; Ramjit Singh Kardam v. Sanjeev Kumar & Others, (2020) 20 SCC 209; and Tej Prakash Pathak & Others v. Rajasthan High Court & Others, (2025) 2 SCC 1.
On the duration of the viva-voce, senior counsel submitted that 6 to 7 minutes was grossly insufficient to evaluate the several criteria set out in the Rules. They also submitted that some selected candidates who were serving as members of Foreigners Tribunals had submitted a self-declaration under Clause 8(iv) of the advertisement stating they had not left practice as advocates, which the petitioners characterised as a false declaration that should have disqualified those candidates.
The State’s Defence
Advocate General Mr. D. Saikia, appearing for the State, raised a preliminary objection to the petitioners’ locus standi. He argued that the petitioners had applied, appeared, never objected at any stage, awaited results for several months, and challenged the process only after failing to make the cut. He relied on Madan Lal & Others v. State of J&K & Others, (1995) 3 SCC 486, and Mohd. Mustafa v. Union of India & Others, (2022) 1 SCC 294.
On the substantive challenge, the Advocate General submitted that Rule 19(ii) itself authorised the Selection Board to devise the proficiency-cum-skill test, and the Notification dated 20 June 2024 further entrusted that power to the boards. The marking scheme resolved on 13 August 2024 was merely a uniform mechanism to apply that criteria across three boards. He argued that the applications and judgments brought by candidates were used only to formulate questions during the viva-voce — not as documents to be assessed independently — and were therefore returned, akin to reference materials used to draft a question paper.
On the ratio of candidates to posts, the Advocate General noted that only 2,390 of 4,659 invited candidates appeared, bringing the actual ratio to fewer than ten candidates per post, and that the Supreme Court in Sardara Singh & Others v. State of Punjab & Others, (1991) 4 SCC 555, had found even three-minute interviews adequate for Patwari selection. He further noted that only 241 of 299 advertised posts were ultimately filled because the boards did not find enough sufficiently proficient candidates.
Senior Counsel Mr. T.J. Mahanta, appearing for some of the private respondents (selected candidates), reinforced the estoppel point and added that Clause 8(iv) of the advertisement dealt only with a self-declaration about continuous practice, not with substantive eligibility. Any false declaration, if established, would attract rejection of candidature or termination from service, but absence of pleadings in the writ petition that named candidates had in fact submitted false declarations meant this ground could not be entertained.
The Court’s Reasoning on Locus Standi
The court framed two points for determination: whether the petitioners had locus standi to challenge the selection process; and whether the selection was vitiated by violation of Articles 14 and 16 of the Constitution.
On the first point, the court undertook a detailed survey of Supreme Court precedent. The general rule, articulated in cases from Dr G. Sarana v. University of Lucknow & Others, (1976) 3 SCC 585, through Madan Lal, Sadananda Halo & Others v. Momtaz Ali Sheikh & Others, (2008) 4 SCC 619, to Pradeep Kumar Rai & Others v. Dinesh Kumar Pandey & Others, (2015) 11 SCC 493, and Tajvir Singh Sodhi & Others v. State of Jammu and Kashmir & Others, (2023) 17 SCC 147, is that a candidate who participates in a selection process without protest and then finds the result unpalatable cannot turn around and challenge that process.
The court also identified the exceptions carved out by the Supreme Court in Raj Kumar & Others v. Shakti Raj & Others, (1997) 9 SCC 527, Ramjit Singh Kardam, DR (Major) Meeta Sahai v. State of Bihar & Others, (2019) 20 SCC 17, and Salam Samarjeet Singh v. High Court of Manipur at Imphal & Another, (2024) 14 SCC 179. These exceptions apply: (A) when the selection proceedings are held contrary to Rules framed under Article 309 or Statutory Notifications under Articles 73 or 162; (B) where the criteria disclosed in the advertisement were not followed or no criteria were disclosed until results were announced; and (C) where apparent illegalities in the selection process were noticed while participating and were assailed at the earliest opportunity.
Applying this framework, the court found that the petitioners fell squarely within the general rule, not the exceptions. Rule 19(ii) of the Rules of 2023 and the Notification dated 20 June 2024 together conferred express authority on the Selection Boards to devise the proficiency-cum-skill test. The advertisement had at Clause 9 directed candidates to the Rules of 2023 for the selection procedure. Rule 19(ii) itself enumerated the parameters — drafting skills, analytical and presentation skills, mental agility, quick grasp of arguments, and quoting judicial precedents — meaning the petitioners knew the criteria before applying.
The marking breakdown decided on 13 August 2024 was not a secret disclosed only at the time of results, as had been the case in Ramjit Singh Kardam. Call letters and official website notices carried Clauses 5 and 6 requiring candidates to bring pleadings and judgments. The petitioners did not challenge this at the call letter stage, appeared in the viva-voce (Petitioner Nos. 1 and 2 appearing twice each, Petitioner No. 3 appearing thrice), and waited more than seven months after the last interview before filing the writ petition. Petitioner No. 4, who did not even appear, was equally estopped.
The court further noted that in Nutan Kumari, relied upon by the petitioners, the challenge was raised before the inquiry committee had given its report, whereas here the petitioners waited until results were declared and their names were absent.
The Court’s Reasoning on the Merits
Having dismissed the petition on locus standi, the court nonetheless addressed the substantive challenge given the volume of allegations made.
On the authority of the Selection Boards to devise the test, the court relied on Dr. Krushna Chandra Sahu & Others v. State of Orissa & Others, (1995) 6 SCC 1, which itself held that a Selection Board has authority to lay down criteria if such power is conferred by Rules under Article 309 or by administrative instructions under Articles 73 or 162. That condition was satisfied here by Rule 19(ii) and the Notification dated 20 June 2024. The petitioners’ argument that no such authority existed was therefore rejected.
On the allegation that the 70-20-10 marking breakdown was a post-advertisement change that candidates could not have anticipated, the court distinguished Ramjit Singh Kardam, where the Commission’s Chairman had unilaterally abandoned a notified written test in favour of an interview only, without any authorisation and without disclosure until results were declared. In the present case, Rule 19(ii) always mandated a viva-voce and no written examination was ever promised. The marking scheme was a permissible exercise of the Selection Boards’ authorised discretion to maintain uniformity across three simultaneously operating boards. The court noted that the word “etc” in Rule 19(ii) even allowed the boards to consider criteria beyond those specifically listed, under the principle of ejusdem generis.
On non-retention of the pleadings and judgments brought by candidates, the court accepted the State’s explanation. The documents were called to enable the interviewers — retired High Court judges experienced in criminal proceedings — to frame informed questions and probe the candidate’s actual work. Asking the candidate to draft a petition or application afresh during the interview would have been contrary to Rule 19(ii), which mandates only a viva-voce test, and would also have been logistically unworkable for a recruitment of this scale. The court drew an analogy: just as books and journals used to frame question papers for a written examination are not part of the record of selection proceedings, the pleadings and judgments used to frame viva-voce questions were not required to be retained. Rule 19(iv) of the Rules of 2023 obligates the Selection Board to maintain a true and faithful record of its proceedings, and the tabulation of marks awarded to each candidate was maintained and produced before the court. The marks obtained by the petitioners were also disclosed in the State’s rejoinder affidavit of 18 June 2026. The court added that any candidate could have sought this information under the Right to Information Act, 2005.
On the allegation of opacity, the court inspected the records in the presence of senior counsel and found that a candidate from the Gauhati High Court Bar Association, about whom a submission of unexplained exclusion was made during hearing, had in fact obtained the requisite marks and was accordingly selected.
On the Foreigners Tribunal members argument, the court held that Clause 8(iv) of the advertisement dealt only with a self-declaration of continuous practice and did not go to substantive eligibility. Without any pleading in the writ petition that the named candidates had in fact submitted false declarations, this ground could not vitiate the entire selection.
Relying on Sadananda Halo and Tajvir Singh Sodhi, the court cautioned that a High Court exercising writ jurisdiction cannot sit as a fact-finding commission or appellate tribunal on the assessment of candidates by a Selection Board composed of experts. Interference is warranted only where there are proven allegations of malfeasance or violations of statutory rules, neither of which was established here.
Outcome
The writ petition was dismissed. The court found no merit in the challenge on either the locus standi or the substantive ground. The court noted that on 30 January 2026 it had issued notice and directed that any appointment made on the basis of the Select List dated 21 November 2025 would be subject to the outcome of the writ petition, and that selected candidates could not claim equity on the basis of appointments if selections were ultimately set aside. That protection now ceases to operate. Appointment orders issued on 15 March 2026 to 241 candidates stand unaffected. No order as to costs was made.