IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.399 of 2010 IN CWJC 3107of 2009 with I.A. No. 2961 of 2010 with I.A. No. 3410 of 2010 IN LETTERS PATENT APPEAL No.399 of 2010 ============================================== BIHAR STAFF SELECTION COMMISSION THROUGH ITS SECRETARY, POST- VETERINARY COLLEGE, SHEIKHPURA, PATNA-800014 Versus 1. PRAMOD KUMAR S/O LATE BIHARI PRASAD R/O VILL.- BHAUAR, P.O.- BIRNAWAN, P.S. KASHICHAK, DISTT.- NAWADA 2. THE STATE OF BIHAR 3. THE DEPTT. OF HEALTH THROUGH COMMISSIONER- CUM-SECRETARY, NEW SECRETARIAT, PATNA-01 4. THE DIRECTOR-IN-CHIEF, DEPTT. OF HEALTH, NEW SECRETARIAT, PATNA-01 =============================================== Appearance: For the Appellant : Mr. P.K. SHAHI, Sr. Advocate Mr. S.S.SUNDARAM Mr. PRAMOD KUMAR Mr. VIKASH KUMAR For the Respondents:Mr. Y.V. GIRI, Sr. Advocate Mr. B.K. BARIAR Mr. SUBODH KUMAR JHA =============================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 08. 16.09.2010 Heard the learned Advocates. With the consent of the learned Advocates, the Appeal is heard and decided today. This Appeal preferred under Clause 10 of the Letters 2 Patent arises from the judgment and order dated 23th December 2009 passed by the learned Single Judge in above C.W.J.C. No. 3107 of 2009. The appellant before us is the Bihar State Staff Selection Commission, the respondent no. 4 in the writ petition (hereinafter referred to as the Commission). The matter at dispute is the recruitment of Pharmacist for appointment under the services of the State of Bihar, pursuant to the advertisement published on 25th January 2000. On 25th January 2000 the Director, Health Services, Bihar published an advertisement calling for application from eligible candidates for appointment as Pharmacist in the State of Bihar. Clause 7 of the said advertisement is the centre of controversy in the present litigation. Clause 7 of the advertisement specified that possession of minimum qualification and other requisites would not entitle a candidate for interview. In the event the applications received in answer to the advertisement were more and it were not possible to interview every candidate, the Directorate of Health Services may arrange screening test to shortlist the candidates who would be called for interview. We are informed that in view of the reorganization of the State of Bihar on 15th November 2000, out of 1059 vacancies advertised only 771 vacancies were available to the successor State of Bihar. Number of applications received were 3499. After scrutiny only 1567 applicants were found to be eligible. The said 1567 applicants have now been called for screening test 3 as envisaged in the above referred paragraph-7 of the advertisement. Feeling aggrieved, the writ petitioner, one of the candidates, approached this Court under Article-226 of the Constitution in above C.W.J.C. No. 3107 of 2009, inter alia, for a declaration that the Commission had no power to conduct the examination in question. Petition was contested by the respondent State of Bihar and the commission. The learned Single Judge has, under the impugned judgment and order, held that the aforesaid paragraph-7 of the advertisement envisaged selection of the candidates on the basis of the interview. The necessity for screening test was envisaged only in case the number of candidates were large in number and the interview of such large number of candidates was not convenient. The learned Single Judge proceeded to hold that against 771 vacancies available the number of eligible candidates was not so large which would call for short listing and for that matter holding of screening test. Consequent to the said finding, the learned Single Judge proceeded to issue direction to the Commission, inter alia, to proceed with the interview of the eligible candidates and to make selection on the basis of the performance and interview alone. Feeling aggrieved, the Commission has preferred the present Appeal. Learned Advocate General Mr. Shahi has appeared for the 4 Commission. He has submitted that the eligibility of a Pharmacist is decided under the Pharmacy Act. As to the procedure for selection he has admitted that the State Government has not made Rules of selection. The Selection procedure, therefore, should be governed by the advertisement. He strenuously urged that the advertisement, particularly paragraph-7 thereof, is clear and unambiguous. It did disclose the intention of the State Government to give written examination to the candidates and to make selection on the basis of the written and the oral examination. He has submitted that the words "Screening test" used in the said paragraph are of wide amplitude and includes competitive written examination also. We are unable to agree with Mr. Shahi. The words “Competitive examination” and the “screening examination/test" have definite and precise connotation under the service jurisprudence. A “competitive written examination” would mean that the marks obtained at such examination would be taken into consideration for ascertaining comparative merit of the candidates while the “screening test” is especially designed to short list the number of candidates when the number of applicants is too large. The marks obtained at the screening test has a limited significance to decide which of the candidates will be allowed to participate in the selection procedure by taking the competitive written examination and/or viva voce. In the present case the language employed in paragraph-7 5 of the advertisement discloses that the Directorate of the Health Services was conscious of the meaning of the “screening test” and had employed the phrase for the very purpose. The advertisement clearly stipulates that the screening test would be held in case the number of candidates were too large and to interview every candidate was not feasible or convenient. It further specifies that the screening test would be held to short list the candidates to be called for interview. On reading of the above referred paragraph-7, we have no hesitation in holding that the Directorate of Health Services was conscious that the selection would be based on oral interview and the screening test would be required only for the purpose of short listing the eligible candidates in case the number of applicants were too large. Mr. Shahi has further submitted that irrespective of the meaning given to the aforesaid paragraph-7 of the advertisement, the learned Single Judge has erred in issuing direction to the Commission to make selection on the basis of the oral interview alone. The High Court exercising its extraordinary jurisdiction under Article 226 of the Constitution has no authority to issue specific direction as has been done by the learned Single Judge. We do agree on principle that it is the prerogative of the appointing authority or that, in absence of the statutory rules, it is the prerogative of the employer to decide on the mode of the selection. But it is fallacious to say that the learned Single Judge 6 has traversed on the filed especially confined to the employer or the selecting authority. It was the employer or the Director of Health Services who had decided to make selection on the basis of oral interview. All that the learned Single Judge has directed is to confine the selection procedure to the terms of the advertisement. In our opinion, the learned Single Judge cannot be said to have encroached upon the authority of the appointing authority or the selecting authority. Ordinarily, if the appointing/selecting authority had felt the necessity for screening test, we would not have interfered with such decision. But, in the present case the special circumstances that weighed with the learned Single Judge are that the advertisement was issued as far back as in the month of January 2000. The selection has not been made yet after nearly 10 years. Besides the number of eligible applicants is just two times the available vacancies. Under the normal rule of service, State is expected to interview not more than three candidates for each vacancy. In other words, three times the available vacancies. As recorded hereinabove, in the present case the available candidates are not even two times the vacancies available. Therefore, there should not be any need for short listing the eligible candidates or to hold the screening test for short listing the eligible candidates. In our opinion, the learned Single Judge has rightly issued the impugned direction directing the appellant to proceed 7 further with the selection procedure in accordance with the advertisement. For the aforesaid reasons, the Appeal is dismissed. Interlocutory Applications are disposed of. Parties will bear their own cost. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)