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Judgment
Sl. No.,Qualification,1st Division,2nd Division,3rd Division,,,
01,02,03,04,05,,,
1,Matric,10 Marks,08 Marks,06 Marks,,,
2,I.Sc.,12 Marks,10 Marks,08 Marks,,,
3,B.Sc.,18 Marks,15 Marks,12 Marks,,,
4,M.Sc./M.A.,20 Marks,18 Marks,16 Marks,,,
,Total,60 Marks,51 Marks,42 Marks,,,
Sl.
No.","Name of
Petitioner",Fathers Name,Category,"Advt.
No.",Reg. No.,"Marks
obtained
by the
Petitioner","Cut of
marks of
the last
selected
candidates
1,"Ashutosh
Kumar","Shashi Prakashan
Sinha",1,Sep-15,2.01509E+11,63.4,73.83
,,,,Oct-15,2.0151E+11,63.4,72.75
,,,,Dec-15,2.01512E+11,63.4,70.5
,,,,16/2015,2.01516E+11,63.4,73.09
2,Priti Bala,"Braj Nandan
Yadav",1,14/2015,2.01514E+11,69.62,74.06
,,,,15/2015,2.01515E+11,69.62,70.88
,,,,17/2015,2.01517E+11,69.62,73.23
3,Sima Kumari,Ram Keshwar,5,14/2015,2.01514E+11,62.68,74.06
,,,,15/2015,2.01515E+11,62.68,70.88
,,,,17/2015,2.01517E+11,62.68,73.23
4,Ranjeet Kumar,Chandra Bhushan Rai,1,Sep-15,2.01509E+11,56.32,73.83
,,,,Oct-15,2.0151E+11,56.32,72.75
,,,,Dec-15,2.01512E+11,56.32,70.5
,,,,16/2015,2.01516E+11,56.32,73.09
5,Rajeev Ranjan,Shiv Shankar Jha,1,Sep-15,2.01509E+11,67.28,73.83
,,,,Oct-15,2.0151E+11,67.28,72.75
,,,,Dec-15,2.01512E+11,67.28,70.5
,,,,16/2015,2.01516E+11,67.28,73.09
6,Rupali,"Nagendra Pd.
Shirvastawa",1,Sep-15,2.01509E+11,65.96,73.83
,,,,Oct-15,2.0151E+11,65.96,72.75
,,,,Dec-15,2.01512E+11,65.96,70.5
,,,,16/2015,2.01516E+11,65.96,73.09
Thus the contention of the learned counsel for the respondents is that the marks obtained by the petitioners are lower than the last cut off marks,,,,,,,
obtained by the candidates, who have been selected for interview by the Commission, hence the petitioners herein have not been selected. It is further",,,,,,,
submitted that except petitioner no. 1, the B.P.S.C. has not received representation of any other petitioners herein and the same has also been rejected",,,,,,,
and the decision thereof was published on the website of the Commission on 26.11.2017 and a notice to the said effect was published in the daily,,,,,,,
newspaper as well. It is further submitted that similarly situated candidates had filed a writ petition bearing CWJC No. 6715 of 2017 and the same has,,,,,,,
been dismissed by this Court by an order dated 19.05.2017. The learned counsel for the respondents B.P.S.C. has also referred to Clause-5 of the,,,,,,,
Advertisement and submitted that it has been clearly stipulated that in case more application forms are received than the number of vacancies, the",,,,,,,
decision of the Commission shall be final in the matter of deciding the mode and procedure for calling candidates for interview, category-wise, hence it",,,,,,,
is submitted that there is nothing wrong in the procedure adopted by the Commission which is in consonance with Clause 4(iii) (a) of the Bihar Public,,,,,,,
Service Commission, Rules of Procedure, 1996 which reads as follows:-",,,,,,,
“(a) The candidates shall be selected for interveiw on the basis of their career marks to be calculated on the basis of percentage of,,,,,,,
marks obtained in each examination from Matriculation upto the level of minimum qualification required. The percentage of marks shall be,,,,,,,
added together and divided by the number of examination and a list accordingly prepared.â€,,,,,,,
It is also the submission of the learned counsel for the Commission that the aforesaid stipulation in Clause-5 regarding the Commission’s decision,,,,,,,
regarding determining the procedure and number of candidates to be called for interview being final is based on the letter of the Home (Police),,,,,,,
Department, Government of Bihar dated 02.10.2015 wherein the clarifications sought by the Commission in pursuance to the requisition made by the",,,,,,,
said Department for making recruitment, has been made and in the Clause-6 of the said letter dated 02.10.2015, it has been clarified that in case",,,,,,,
B.P.S.C. receives more applications than the vacancies, it would act as per the procedure mentioned in the Bihar Public Service Commission, Rules of",,,,,,,
Procedure, 1996. The learned counsel for the petitioner has also relied upon a judgment reported in (2017) 4 SCC 357 (Ashok Kumar vs. State &",,,,,,,
Anr.) to contend that once the appellants have participated in the fresh process of selection, it is not open for them to challenge the result in a writ",,,,,,,
petition upon being declared unsuccessful since the principle of estoppel would operate. The relevant paragraphs of the said judgment rendered in the,,,,,,,
case of Ashok Kumar (supra), being paragraph nos. 12 to 18 are reproduced hereinbelow:-",,,,,,,
The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process,",,,,,,,
they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that",,,,,,,
they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.,,,,,,,
The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla6, this",,,,,,,
Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not,,,,,,,
successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise",,,,,,,
where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or,,,,,,,
that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar7, this Court held that:",,,,,,,
(SCC p. 107, para 18)",,,,,,,
“18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down,,,,,,,
therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil8 and Rashmi Mishra v. M.P. Public Service,,,,,,,
Commission9.)â€,,,,,,,
The same view was reiterated in Amlan Jyoti Borooah5 wherein it was held to be well settled that the candidates who have taken part in,,,,,,,
a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be,,,,,,,
unsuccessful.,,,,,,,
In Manish Kumar Shahi v. State of Bihar10, the same principle was reiterated in the following observations: (SCC p. 584, para 16)",,,,,,,
“16. We also agree with the High Court11 that after having taken part in the process of selection knowing fully well that more than 19%,,,,,,,
marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the",,,,,,,
petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked",,,,,,,
jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit,,,,,,,
list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did,,,,,,,
not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v.,,,,,,,
State of J&K12, Marripati Nagaraja v. State of A.P.3, Dhananjay Malik v. State of Uttaranchal4, Amlan Jyoti Borooah v. State of Assam5",,,,,,,
and K.A. Nagamani v. Indian Airlines13.â€,,,,,,,
In Vijendra Kumar Verma v. Public Service Commission14, candidates who had participated in the selection process were aware that",,,,,,,
they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process,,,,,,,
and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be,,,,,,,
impermissible.,,,,,,,
In Ramesh Chandra Shah v. Anil Joshi15, candidates who were competing for the post of Physiotherapist in the State of Uttarakhand",,,,,,,
participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the",,,,,,,
respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of,,,,,,,
selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right",,,,,,,
to challenge the advertisement or the procedure of selection. This Court held that: (SCC p. 318, para 18)",,,,,,,
“18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the",,,,,,,
method of selection and its outcome.â€,,,,,,,
In Chandigarh Admn. v. Jasmine Kaur16, it was held that a candidate who takes a calculated risk or chance by subjecting himself or",,,,,,,
herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-,,,,,,,
selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey17, this Court held that: (SCC p. 500, para 17)",,,,,,,
“17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of",,,,,,,
interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration,,,,,,,
of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be",,,,,,,
unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time.",,,,,,,
Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged,,,,,,,
immediately after the interviews were conducted.â€,,,,,,,
This principle has been reiterated in a recent judgment in Madras Institute of Development Studies v. K. Sivasubramaniyanâ€.,,,,,,,
I have heard the learned counsel for the parties and gone through the materials on record and I find that neither the petitioners herein have challenged,,,,,,,
that portion of Clause-5 whereby and whereunder, it has been stipulated that in case more applications than the prescribed vacancies are received, the",,,,,,,
decision of the Commission with regard to the number of candidates and the procedure to be adopted for calling the candidates for interview shall be,,,,,,,
final, nor the petitioners herein have challenged the decision of the Commission contained in Annexure-F series to the counter affidavit filed by the",,,,,,,
B.P.S.C. which is the tabulation-sheet of the marks obtained by the petitioners herein, thus the present writ petition is fit to be dismissed on this score",,,,,,,
alone. I further find that in view of Clause-5, empowering the Commission to take a final call in deciding the number of candidates and the procedure",,,,,,,
for calling the candidates for the purposes of interview in cases the applications received are more than the vacancies, the B.P.S.C. cannot be faulted",,,,,,,
for the mode and manner it has adopted. Nonetheless, the point is that the said procedure, adopted by the B.P.S.C., is not only in accordance with",,,,,,,
Rule 4(iii) a of the Rules 1996 but has also been uniformly applied to all the candidates who have filed applications, hence neither any prejudice has",,,,,,,
been caused to the petitioners herein nor they can say that they have been discriminated with. Now, it is their drawback and their lower position in the",,,,,,,
comparative merit list that they have secured less marks than the marks obtained by the last selected candidate, who has been called for interview,",,,,,,,
hence they cannot insist for adoption of another procedure especially after participating in the selection process and taking their chance and thereafter,,,,,,,
being declared unsuccessful, in view of the judgment of the Hon’ble Apex Court rendered in the case of Ashok Kumar (supra).",,,,,,,
The aforesaid issue is no longer res integra inasmuch as the said issue has also been decided by this Court by a judgment dated 19.05.2017 passed in,,,,,,,
CWJC No. 6715 of 2017, which also pertains to the same selection process, relevant portions whereof are reproduced hereinbelow:-",,,,,,,
“The petitioners are aggrieved by the notice dated 19.04.2017 in so far as it disqualifies the petitioners on the marks awarded against,,,,,,,
academic qualification. According to Mr. Jha learned Senior counsel appearing for the petitioners in reference to the advertisement, there",,,,,,,
is no such mention in the advertisement, a copy of which is placed on record at Annexure- P/4 that the respondent-Commission would be",,,,,,,
following the Bihar Public Service Commission Rules of Procedure, 1996 (hereinafter referred to as ‘the Rules’), a copy of which has",,,,,,,
been placed on record at Annexure-D to the counter affidavit.,,,,,,,
In short, the submission is that the procedure adopted by the respondent-Commission by following Rule 4(3)(a) of ‘the rules’ to award",,,,,,,
marks on educational qualification, is contrary to the advertisement for it does not take into consideration the experience gained by the",,,,,,,
candidates during the service.,,,,,,,
The argument of Mr. Jha has been contested by Mr. Kishore to submit that even though the experience is taken into consideration as per the,,,,,,,
advertisement but that is only for testing the eligibility of the applicant. He submits that once the applications are received that a selection,,,,,,,
list was prepared in terms of Rule 4(3)(b) of ‘the Rules’ and the number of candidates called for interview is 5 times the number of,,,,,,,
vacancies. He submits that amongst the candidates who were called for interview by following such rules, in so far as the category of the",,,,,,,
petitioner is concerned, the last of the candidate had obtained 70.50 marks and which is mentioned at paragraph 3 of the impugned notice.",,,,,,,
It is argued that since the marks secured by the petitioners as against the education qualification fall much below the marks mentioned in,,,,,,,
paragraph 3 as explained at paragraph 12 of the Costner affidavit, they have not been called for interview.",,,,,,,
Having heard learned counsel for the parties and though according to Mr. Jha, the procedure so followed by the Commission is not",,,,,,,
supported by the Advertisement but in my opinion, the argument advanced is thoroughly misconceived for in view of the discretion vested in",,,,,,,
the Commission under Clause 5 of the advertisement present at Annexure-P/4 read alongside ‘the Rules’ which binds the Commission,,,,,,,
to determine the number of candidates who are to be called for interview, the decision taken meets the stipulations as well as rationale and",,,,,,,
does not require interference.,,,,,,,
The writ petition is dismissed.â€,,,,,,,
For the reason mentioned hereinabove as also the present case being covered by the judgment of this Court dated 19.05.2017 passed in CWJC No.,,,,,,,
6715 of 2017, I find no merit in the present writ petition.",,,,,,,
The writ petition is dismissed.,,,,,,,