IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14440 of 2005 UPENDRA KUMAR CHOUDHARY, S/O SRI RAMRUP CHOUDHARY, R/OVILLAGE-FUMHA, P.S.-SUPAUL, DISTRICT-SUPAUL. ………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS CHAIRMAN, BAILEY ROAD, PATNA. 3. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA. 4. THE COMMISSIONER-CUM-SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 5. THE DRUG CONTROLLER, HEALTH DEPARTMENT, BIHAR, PATNA. 6. THE DEPUTY SECRETARY, BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA. ……………RESPONDENTS. ----------- For the Petitioner : Mr.Uday Chand Prasad, Adv. and Mr.Manoj Kumar, Adv. For the State : Mr.Rakesh Ambastha, A.C. to A.A.G.-V. For the BPSC : Mr.Md.Nadim Seraj, Adv. ------------ 14 20.05.2010 Petitioner has filed this writ application for a direction to the respondents to declare him pass in the written competitive examination for the post of Drug Inspector conducted by the Bihar Public Service Commission (for short ‘the Commission’) in relation to advertisement no. 2 of 2000 in the light of the orders passed in LPA No. 1283 of 1999 and LPA No. 1349 of 1999 and MJC No. 3864 of 2000 and Government resolution dated 22.12.1990 and for a further direction to the respondents to take viva voce test of the - 2 - petitioner and publish his result on the basis of total marks secured by him both in written test and viva voce test. The submissions of learned counsel for the petitioner are that in terms of the orders of this Court passed in the L.P.As the respondents by resolution dated 22.12.1990 had prescribed different cut-off marks for different categories of candidates for their employment in Government service. For general category it was 40% whereas for backward category, to which the petitioner belongs, it was 36.5%; for backward class (Annexure-1) it was 34% and S.C./S.T. and female candidate it was 32%. He submits that in the common judgment of two LPAs this was noticed by the Bench in paragraph 10 and therefore the LPAs were accordingly disposed of. He submits that total marks in written test, held by the Commission pursuant to the said advertisement no. 2 of 2000, for the post of Drug Inspector under the Department of Health, was 400, 36.5% of which came to 146. He submits that the marks obtained by the petitioner in all the four papers was 146, but the Commission denied him opportunity - 3 - to appear in the viva voce test. Hence this writ application has been filed praying for aforesaid reliefs. Commission has filed counter affidavit and supplementary counter affidavit in the case. In the counter affidavit it is stated that apart from securing 146 marks in the written examination petitioner was also required to secure 36.5% marks in each of the papers separately also. Since the petitioner had not secured 36.5% marks in two papers he was not declared pass. Accordingly, he was not called for interview. Learned counsel for the petitioner submits that prior to this examination also petitioner had appeared in the examination for Drug Inspector in 1993 held by the Commission. In that examination he was not declared pass and, therefore, he had filed a writ application in this Court namely, CWJC No. 3345 of 2004. In that writ application, the Commission took the stand that since the petitioner had not secured 36.5% marks in total therefore, he was not declared pass. He submits that in that writ application the Commission did not take the - 4 - stand that apart from securing 36.5% marks in total, a candidate was required to secure 36.5% marks in each paper separately also. He submits that now the Commission has changed its stand in this case by setting up a new defence that 36.5% marks was required to be secured in each paper separately also which the petitioner has not secured in this examination. Since the earlier counter affidavit of the respondent Commission did not accompany with any conscious decision of the Commission in this respect, this Court granted time to the respondents to file supplementary counter affidavit. With the supplementary counter affidavit, now filed, the respondents have produced a notification of the Department of Health dated 21.12.1989 which contains the Rules with regard to appointment and service conditions of Drug Inspectors. Paragraph 5 of Rule 12 deals with examination procedure and prescribes for objective type written examination of four papers of 100 marks each. After laying down the syllabus for the four papers, provision is made for oral examination. It is mentioned that only those candidates will - 5 - be called for oral examination who had secured qualifying marks in the written examination. It is also mentioned that in each subject the general category candidate should at least secure 40% marks and the SC/ST candidates should secure 35% marks. Learned counsel for the Commission submits that this makes it clear that in each paper a candidate had to secure minimum qualifying marks apart from securing the total qualifying marks in the written examination. Learned counsel for the petitioner, in reply, submits that the said Rule does not deal with the case of backward category candidates and it mentions for qualifying marks in each paper for general category and SC/ST candidates only. He submits that since the petitioner is a candidate of backward category it will not apply to him. He further submits that in the judgment passed by the Division Bench in the said LPAs there was no submission on behalf of the Commission that in each and every subject a candidate has to secure qualifying marks separately. He submits that subsequently the Personnel Department had issued a resolution - 6 - dated 22.12.1990, as contained in Annexure-A to the counter affidavit, in which, different percentage of qualifying marks was prescribed for different category of candidates for employment in Government service. He submits that in this resolution nowhere it is stated that apart from securing minimum qualifying marks in the written examination the candidates are required to secure minimum qualifying marks in each papers separately also. He submits that this resolution was taken notice of by the Division Bench in paragraph 10 and in the light of the same the LPAs were disposed of. He also submits that the letter is silent on this point and even in advertisement this was not mentioned. Therefore, the respondents are not at liberty to take the stand now that the separate qualifying marks in each paper was also required to be achieved. In the matter of examinations for public employment conducted by a constitutional body the interference of this Court has to be very minimal. The rational of the decision of the body has only to be examined and if from the records it appears that some uniform standard - 7 - has been applied by the said body for conducting examination based on some conscious decision of the government or the body itself, this Court should not interfere in the matter. It is true that in the resolution of the Personnel Department only total percentage of qualifying marks was prescribed for different categories in which 36.5% marks was prescribed for backward category. However, the resolution of the Health Department containing the Rules for appointment of Drug Inspectors, annexed as annexure-B, does show that each candidate had to secure minimum qualifying marks in different papers also. It is true that the Rules does not mentioned anything about the backward category. But, once it has been laid down in the Rules itself that candidates of general category and SC/ST category have to obtain minimum qualifying marks in each paper separately the same has to be applied for other categories also. Since this Rule has been framed and notified in terms of Article 309 of the Constitution of India it has to prevail upon the resolution of the Personnel Department in the matter of appointment of Drug Inspectors in - 8 - case the same is found to be in conflict. However, this Court does not find any conflict between the resolution of the Personnel Department and the Rules framed by the Health Department. The resolution of the Personnel Department prescribes for total qualifying percentage of marks which is prescribed in the Rules also. The resolution of the Personnel Department is silent about minimum qualifying marks to be obtained by a candidate in each paper also which is clarified in the Rules framed by the Department of Health so far as appointment on the post of Drug Inspectors are concerned. In the circumstances, this Court finds that the prescription in the Rules for a candidate to secure minimum qualifying marks in each paper has also to apply to all category of candidates uniformally to save it from the vice of discrimination. As the petitioner has failed to obtain minimum qualifying marks of 36.5% in two papers the Commission has rightly not allowed the petitioner to appear in the interview. This Court therefore does not find any - 9 - merit in the writ application and the same is dismissed. Arvind/ (J. N. Singh, J.)