Manish Kumar vs The State of Bihar

Heard learned counsel for the parties. The jinx in the appointment on the post of Block Animal Husbandry Officer stands unresolved even in a period of one decade. The advertisement for such post was published way back on 29th November, 2004. The relevant portion of the terms of eligibility and conditions for selection and appointment under this advertisement was as follows:--

It is not in doubt that thereafter interviews were held between 4.4.2005 to 3.5.2005 whereafter the Bihar Public Service Commission (hereinafter referred to as "the Commission") on 26.5.2005 had published a merit list of 165 successful candidates. In fact, the Commission had also recommended such 165 selected candidates for the appointment to the Animal Husbandry Department on 26.5.2005. Thus, the manner in which the Commission had proceeded, it was expected that appointments could have been made before the completion of the year of 2005.

However, that did not happen, inasmuch as such selection and recommendation made by the Commission became the subject matter of challenge by some of the candidates. In fact, when the Government did not issue the appointment letters, another writ application was filed by some of the successful candidates being C.W.J.C. No. 6253 of 2006, but this Court, on detailed examination of the selection process, did not find the selection to have been done in a proper manner and accordingly by an order dated 8.8.2006 while rejecting the prayer of the successful candidates for their issuance of appointment letters, had disposed of the writ application which for the sake of convenience is reproduced hereinabove:--

In order to fill up 225 posts of Veterinary Officers in the Department of Animal Husbandry, an advertisement was published. That advertisement was responded by 740 applications. 22 of those applications were, on scrutiny, rejected. The remaining applicants were'' called at interview which was conducted in between 4th April, 2005 and 3rd May, 2005. Thereupon a select list was prepared and the same was brought to the notice of the public by publication on 26th May, 2005.

It appears to be the contention of the petitioner that on 26th May, 2005 Bihar Public Service Commission (B.P.S.C.) made recommendations in favour of those selected candidates to the State Government for being appointed. Petitioners are amongst those selected persons, who have thus been recommended for being appointed. Since the petitioners have not been appointed, hence the present writ petition has been filed seeking a direction upon the State Government to appoint the petitioners on the strength of such recommendation made by the B.P.S.C. It appears to be contention of the State Government that on 17th April, 2006 the State Government had been constrained to file a First Information Report in view of what has come to light in course of preliminary enquiry by the Vigilance Department of the State. The first enquiry report suggests that although according to the procedure prescribed, if the number of candidates is more than 500, it was required to have objective test, but the same was not done and all 718 candidates were called at interview and there is nothing on record to suggest how the merit of these persons had been assessed. It has further been alleged that except three candidates, who have been selected, the remaining candidates, who have found their names in the select list, had been interviewed by the then Chairman of B.P.S.C.

In a situation of this nature, it may not be possible for this Court to direct the State Government to appoint the petitioners on condition that if ultimately it is held that the selection is bad, their services may be terminated as was prayed for by the learned counsel for the petitioner. The best course, I think, would be to direct B.P.S.C. to reconduct selection of those 718 candidates within a time specified for the purpose of selecting out of them 225 candidates for being appointed by the State Government.

In those circumstances, the State Government is directed to submit a fresh requisition to B.P.S.C. for 225 such Officers within a period of four weeks from today and B.P.S.C''. is directed to select 225 such Officers only amongst those candidates whose candidature was accepted by B.P.S.C. in terms of the previous advertisement.

It is made clear that B.P.S.C. while selecting those 225 candidates shall act in accordance with law and shall make an endeavour to select the right persons for the posts in question.

This disposes of the writ petition.

It is not in doubt that the order passed by the learned Single Judge on 8.8.2006 has acquired finality inasmuch as the same has been approved by the Division Bench of this Court as also by the Hon''ble Apex Court. In fact, all these had happened well within the space of two and a half years from the date of advertisement, but for one reason or the other the matter had remained pending inasmuch as even when the SLP being SLP (Civil) No. 90 of 2007 was dismissed by the Hon''ble Apex Court on 5.5.2008, no decision was taken for in the next four and a half years till the Notification was issued on 15.9.2012 fixing the date 13.10.2012 for holding the screening test.

The first writ application, C.W.J.C. No. 18840 of 2012 came to be filed on 4.10.2012 just on the eve of holding of the screening test which, as noted above, was going to be conducted on 13.10.2012. It has to be noted that though the case was heard on 8.10.2012 but no interim order was passed and as such the screening test was held on 13.10.2012. In fact, after the screening test was held, the case got listed on 19.10.2012 and this Court had only directed for reserving three posts. As a matter of fact, the Commission had published the result of the screening test on 11.1.2013 in which the petitioners in C.W.J.C. No. 18840 of 2012 had already qualified and therefore, their challenge to the decision of the Commission for holding the screening test came to an end both on account of their participating in examination as also becoming successful. In the natural eventuality, the first writ application, C.W.J.C. No. 18840 of 2012 had become infructuous.

At this stage, it has to be noted that another writ application, C.W.J.C. No. 20705 of 2012 was filed by two petitioners who had a grievance with regard to manner of selection. The relevant portion of the prayer made in this writ application reads as follows:--

...for directing and commanding the respondent authorities including the authorities concerned of the Bihar Public Service Commission to conduct and complete the entire selection process in connection with appointment of 225 posts of Block Animal Husbandry Officers and its equivalent posts of Block Animal Husbandry Service, Grade-2, on the basis of Advertisement No. 11 of 2004 in view of the "Rules of Commission, 1996" and further for directing the authorities including the Bihar Public Service Commission to finally select the eligible and suitable candidates on the said 225 posts after fixing 100 Marks for Interview and 100 marks for Academic Achievements as the said marks for the same were also fixed earlier in view of Rules of Commission, 1996 in pursuance of the same advertisement i.e. Advertisement No. 11 of 2004 for the said vacancies. The petitioners also seek direction to the authorities of the Bihar Public Service Commission not to complete the selection process for the said posts on the basis of 20 marks for Interview and 80 marks for Academic achievements in violation of it''s own Rules adopted earlier regarding the same very advertisement for the same posts.

As it would be evident that after these petitioners had already appeared in the screening test, they had come out to assail the manner of selection and according to them, the criteria fixed by the Commission in the year 1996 ought to have been made applicable under which 100 marks was to be allocated for interview and another 100 marks for academic achievements. This Court will have no difficulty in rejecting such prayer of the petitioners for a simple reason that there is no cadre rule which envisages selection on the post of Block Animal Husbandry Officer either on the basis of the written test or the fixation of 200 marks, 100 marks for academic achievement and another 100 marks for interview. In absence of such statutory provision, it was well open for the Commission to evolve of its own methodology and this would also confine merit in the submission advanced by Mr. Sanjay Pandey, learned counsel appearing on behalf of the Commission that the issue stands settled in a number of judgments of the Hon''ble Apex Court including a recent one in the case of Rajya Sabha Secretariat and Others Vs. Subhash Baloda and Others, wherein it has been held that it is always open for the employer or the recruiting agency to lay down the norms of selection in which the courts cannot issue any direction for holding selection in a particular manner.

It is true that the power of judicial review available to the courts cannot be extended in the matter of selection either by the employer or by the recruiting agency, but then as to what norms would be followed for such selection can only be tested on the anvil of Articles 14 and 16 of the Constitution of India. If the Commission in the advertisement itself had clarified that there would be a screening test, such screening test was only meant for examining the initial eligibility of the candidates. On the basis of screening test, either a candidate could have become entitled of being called for interview or otherwise could have been refused such permission.

Today, in the present case, when every candidate who had appeared in the screening test has been declared to be successful, the relevance of screening test has been virtually given up by the Commission itself. In that view of the matter, the challenge of the petitioners in C.W.J.C. No. 20705 of 2012 with regard to the mode of selection in the interview by allocating 100 marks each for academic achievement and interview without there being any statutory rule for the same cannot be allowed by this Court.

The third writ application, C.W.J.C. No. 2410 of 2013, has been filed by five petitioners, who have assailed the corrigendum issued by the Commission on 11.10.2012 containing the interview programme. The corrigendum contained in Annexure-7 to the writ application reads as follows:--

The five petitioners are, in fact, aggrieved on the introduction of the cutoff date of completion of their internship which was fixed as 6.1.2005. Mr. Rajendra Prasad Singh, learned senior counsel appearing on behalf of the petitioners, had submitted that the Commission could not have fixed this date 6.1.2005 for completion of internship in terms of the earlier advertisement dated 29.11.2004 inasmuch as all the petitioners were not only allowed to appear in the screening test which was held on 13.10.2012 by which period they have already completed their internship. In fact, Mr. Singh has also highlighted that once there was a decision of the Commission that each and every candidate appearing in the screening test would be declared to be successful for being allowed to appear in interview, the introduction of the cut-off date of 6.1.2005 on the basis of evaluating the educational qualification laid down in the advertisement dated 29.11.2004 by itself would be illegal.

It is this aspect of the matter which has been sought to be opposed tooth and nail by Mr. Lalit Kishore, learned P.A.A.G., who has submitted that this cutoff date 6.1.2005 has not been coined by the Commission rather the Commission is following the direction of this Court issued in the earlier judgment dated 8.8.2006. in this regard, he has also invited attention of this Court towards a corrigendum issued by the Commission on 16.12.2004, according to which the Commission had clarified that even candidature of such persons having the qualification of graduation in Veterinary Science could be entertained who were still under going internship, but their internship must come to an end prior to the date of holding of the interview. According to Mr. Lalit Kishore, this corrigendum, therefore, would also cover the case of the petitioners.

In the considered opinion of this Court, such approach and the stand of the Commission cannot be approved for more than one reason. As noted above, first of all, in the advertisement that was issued on 29.11.2004, no date of interview Was fixed. In fact, there was a prospect of holding screening test whereafter the interview was to be conducted. If the Commission was so sanguine about the terms and conditions of the advertisement, it had no reason to again issue a corrigendum on 16.12.2004 fixing the date of interview as the qualifying date for the purpose of completion of internship. Admittedly, interview was not held on 6.1.2005 and, therefore, this Court does not find any rationale of the cut-off date of 6.1.2005 which was fixed in the corrigendum issued by the Commission itself and has been made subject matter of challenge of C.W.J.C. No. 2410 of 2013. As a matter of fact, the last date of receipt of application under the advertisement dated 29.11.2004 was 6.1.2005 and, therefore, if the Commission itself had varied the terms and conditions of the advertisement by putting the date of completion of internship as on the date of interview, no different stand could have been taken subsequently by the Commission. In this regard, it would be useful to also extract the relevant portion of the corrigendum dated 16.12.2004 reads as follows:--

While holding so, this Court has also very cautiously examined the directions given earlier in the order dated 8.8.2006 and does not find anything therein which authorizes the Commission to fix the cut-off date of 6.1.2005. As a matter of fact, the over emphasised reliance on the expression "only amongst those candidates whose candidatures were accepted by the Commission in terms of the previous advertisement" will never give the Commission liberty to play with the other part of direction of this Court inasmuch as this Court had specifically taken into account that a fresh selection process/recruitment was to be held for all those 718 candidates for filling up the 225 posts.

It is not in doubt that these five petitioners also are included in those 718 candidates. As a matter of fact, when there was a direction by this Court to the State Government to submit a fresh requisition to the Commission and the said requisition was sent by the Government on 24.2.2012, on the basis of which the screening test was held on 13.10.2012, the Commission, having not cancelled its corrigendum issued on 16.12.2004, would be bound to allow each and every candidate who would have completed their period of internship before the date of interview. Of course, the Commission cannot allow anyone beyond 718 candidates for this purpose and therefore, since the petitioners are part and parcel of those 718 candidates, they would also be entitled to appear in the interview whose date is yet to be announced by the Commission.

In that view of the matter, the prayer of the petitioners in the third writ application, C.W.J.C. No. 2410 of 2013 is allowed.

In C.W.J.C. No. 2884 of 2013, the following prayer made by the petitioners:--

(i) For issuance of writ in the nature of mandamus for commanding the respondents to select the candidates for appointment on the post of veterinary doctors against the vacancies advertised through advertisement No. 11/2004 in accordance with the procedure as stipulated in the advertisement.

(ii) For issuance of writ in the nature of mandamus for commanding the respondents concerned to call the candidates for interview/written test on the basis of minimum cut-off marks.

(iii) For issuance of writ in the nature of certiorari to quash the clause 2 of the admit card under heading "Subject of the Examination" where in contrary to the original advertisement the selection criteria has been changed and it is stated that for selection 80 marks is fixed for academic record and only 20 marks is fixed for interview.

(iv) For issuance of writ in the nature of mandamus for commanding the respondent concern to consider only those candidate for the appointment who fulfills the eligibility criteria as per statutory rules.

is virtually one and same as in the third writ application, C.W.J.C. No. 2410 of 2013 wherein the norms of selection process in the interview has been sought to be questioned.

According to Mr. Anjani Kumar Jha, learned counsel appearing in C.W.J.C. No. 2884 of 2013, the Commission will have no liberty to fix this norms of 80% for academic qualification and 20% for interview inasmuch as in the advertisement it was categorically mentioned that on the basis of either result of the screening test or evaluation of the educational qualification, the candidates would be called for written test/interview and, therefore, the Commission cannot now fix a new criteria which was not mentioned in the advertisement. He has explained that the aspect of giving weightage of 80% in academic performance of the candidates cannot be uniformly applied inasmuch as many of the candidates have passed matriculation examination and thereafter their further higher examination from the Institutions where marking is not so consistent as against the marking made by the Central Board of Secondary Education or other Institutions. In nutshell, he has highlighted that a uniform pattern of awarding of marks for academic qualification would be causing discrimination to such of the candidates who may not be from public schools or recognized Institutions.

This Court, first of all, must clarify that when the Commission had fixed the criteria of selection either through written test or interview after holding of the screening test or marking of qualification it had never conveyed as to what would be the further basis of its selection. An interview has not to be confused with the viva-voce test. The interview of a candidate, therefore, will mean the total assessment of personality in which viva-voce may be one of the tests. In that view of the matter, if no norms was fixed by the Commission in the advertisement, the petitioners of C.W.J.C. No. 2884 of 2013 cannot be permitted to introduce the same by way of a general impression that interview will always mean viva-voce test only.

The aspect that the Commission has decided to hold selection by allocating 80 marks out of 100 for the educational qualification and remaining 20 marks for the viva-voce test should also not be of any cause of concern for the petitioners of this case or for other candidates inasmuch as there is a Government circular which lays down that recommendation of a general candidate has to be made securing 40 marks in the overall interview. In that view of the matter, it would be difficult for this Court to lay down that a candidate of general category not securing even 40 marks which has been also reduced for the reserved category up to 32% would be expecting to be selected and appointed on a gazetted post of Block Animal Husbandry Officer.

This Court, in fact, is fully satisfied from perusal of the letter dated 27.6.2012 of the Secretary of the Commission addressed to the Principal Secretary, Animal Husbandry & Fishery Department that the decision taken for allocating 60 out of 80 marks for evaluation of qualification of Animal Husbandry does not suffer from any error much less can be held to be arbitrary. The relevant portion of the decision of the Commission in this regard reads as follows:--

As a matter of fact, the aforementioned decision of the Commission dated 27.6.2012 has also been confirmed by the State Government vide its letter dated 19.7.2012, the relevant portion thereof reads as follows:--

In view of the above, it would be difficult for this Court to envisage that the candidates seeking appointment on the post of Block Animal Husbandry Officer whose essential qualification is graduation/Bachelor in Veterinary Science can have any objection of their being evaluated on the basis of their performance in the examination specially when there is no recruitment rule to the contrary laying down selection on the basis of any other laws.

In that view of the matter, this Court will also find no merit in the fourth writ application, C.W.J.C. No. 2884 of 2013 and the same is accordingly, dismissed.

Coming to the last case, C.W.J.C. No. 3562 of 2013, this Court would find that the challenge of the sole petitioner, Dr. Ghanshyam Kumar, is same as that of C.W.J.C. No. 2410 of 2013 inasmuch as he too is only aggrieved by his being eliminated from the zone of consideration on the basis of his not qualifying on the date of completion of his internship. As noted above, this petitioner was also part and parcel of 718 candidates and has also appeared in the screening test. He too has been declared successful in the screening test and for him also the interview is yet to be held and in terms of the corrigendum issued by the Commission on 16.12.2004 and thus he too will be entitled to appear in the interview as he has already completed his internship.

Thus, the case of the petitioner, being exactly same as that of the other five petitioners of C.W.J.C. No. 2410 of 2013, is allowed in the same terms. With the aforesaid observations, all these five writ applications are, accordingly, disposed of.