IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6603 of 2002 Brajesh Kumar, son of Indradeo Prasad Choudhary, resident of 6 MF 1/24, Bahadurpur Housing Board Colony, Post Lohianagar, PS Kankarbagh, Dist. Patna – Petitioner. vs. 1. The State of Bihar through the Secretary, Personnel & Administrative Reforms Department, Bihar, Patna. 2. The Secretary, Road Construction Department, Bihar, Patna. 3. The Bihar Public Service Commission, through its Chairman Shri Lakshmi Roy, Bailey Road, Patna. 4. The Secretary, Bihar Public Service Commission, Bailey Road, Patna. 5. The Controller of Examinations, Bihar Public Service Commission, Bailey Road, Patna – Respondents. … For the petitioner: Mr. Kamal Kishore Mishra and Mr. K.N. Jha, Advocates. For respondents 3 to 5: Mr. D.K. Sinha, Senior Advocate and Mr. Anil Kumar Singh No. 1, Advocate. 19 23-6-2010 This writ petition has been filed for cancellation / quashing of the result published by the Bihar Public Service Commission (hereinafter referred to as ‘the Commission’) declaring the merit-wise list of Assistant Engineers (Civil) against Advertisement No. 128 of 1996. The short facts of this case are that the Commission held a preliminary screening test on 2.7.2000. The petitioner roll number was 5767. After the screening test the petitioner was asked to appear in interview on 22.12.2001 which was extended and finally the interview was held on 27.4.2002. Results were published on 7.5.2002 and the petitioner’s name did not find place in the merit list. The main issue that has been raised in this writ petition is that the petitioner has scored 81.73% marks in his academics having obtained Degree of Engineering from Tashkent Institute of Architecture & Civil Engineering, Tashkent, Uzbekistan in which he 2 had secured 88.6% marks which after conversion came to 81.73%. It is not in dispute that 100 marks were fixed for academics and 100 marks for the interview. While hearing the writ petition a bench of this court by order, dated 30.6.2008 asked the Commission to file a supplementary counter affidavit enclosing the norms fixed by the Commission for marking the candidates in the interview. The Commission filed an affidavit and also produced the records of the interview board before this court. The records were kept with the Registrar General and the parties were permitted to examine the records. The contention raised on behalf of the petitioner is that having secured higher percentage in academics it is not possible that the petitioner could have been granted only 10 marks in the interview. The submission is that for some oblique motive the petitioner was not given proper marks. It has been pointed out that the list of successful candidates belonging to scheduled caste indicates that the highest marks in the academics is 70.69% and the persons who have been declared successful are mostly the candidates who have secured between 55% to 70% marks in academics. Such persons have been given higher marks in the interview ranging from 40 to 68 out of 100. It has further been submitted that the examiners who have interviewed the petitioner and other candidates have given identical marks to all the candidates. The marks allocated in the interview do not indicate that there was any norms for giving marks to the candidates. On the basis of the aforesaid facts the petitioner alleges that there has been 3 illegality in the selection process. The reasons for challenging the allocation of marks in the interview is that Shri Lakshmi Roy, the Chairman of the Commission was an accused in a case with respect to preparation of a merit list for the purpose of appointment by the Commission. Shri Lakshmi Roy is said to have chosen experts of his caste for the purpose of holding interview. It is submitted that the petitioner belongs to scheduled caste category (02) and possesses highest marks in that category and yet he has deliberately been granted low marks. It has been stated at paragraph 32 of the writ petition that the petitioner has come to know that a candidate who offered Rs.5 lakhs to the Chairman of the Commission has been selected for appointment. On perusal of the list produced by the Commission of the successful and unsuccessful candidates belonging to scheduled caste category this court finds that several of the candidates who have secured above 60% marks have been granted low marks in the interview. There is a candidate who has secured 67.18% marks in the academics, yet he has been granted ‘0’ marks in the interview. Similarly about three persons have been granted 10 marks in the interview although they have secured more than 60% marks in the academics. On the basis of the list which has been produced by the Commission, it cannot be said that the Commission has deliberately granted higher marks to persons having lower marks in the academics. This court cannot find any positive evidence to indicate that the 4 petitioner was singled out for any reason whatsoever. The court also notices that amongst the successful candidates only three candidates have secured second division in academics, but have been granted good marks in the interview, whereas all others have above 60% marks. The allegation that the Chairman chose persons of his own caste for the purpose of holding interview is not very relevant as far as appointment of candidates of scheduled caste are concerned since the seats for scheduled caste are ear marked. This court also finds that the allegation that the Chairman and other members of the Board had a tainted career is a vague allegation and probably, if at all true, there was no allegation against the Chairman at the time when the interview was held and the selection process took place. The allegation that the Chairman was involved in scandal is not in relation to this particular selection. In fact the selection process has not been challenged by any other candidates alleging that there was wide-spread illegality with respect to the appointment under challenge. Mere allegations based on suspicion without any specific pleadings of malice directed against the Chairman or those who held the interview cannot usually be the basis of holding that the selection process was tainted or illegal. The submission that the experts gave the same marks in the interview to all the candidates cannot lead to the conclusion that the interview was doctored. It could be that the members of the interview board after discussion and gave same marks to the candidates and, therefore, this court cannot on the basis of this fact hold that the marks allotted to the petitioner was low and granted for some oblique motive. 5 In this context I would like to refer the judgment in the case of Madan Lal vs. State of Jammu & Kashmir, (1995) 3 SCC 486. In the reported case the applicants, twenty in number, had challenged the process of selection of Munsif in the State of Jammu & Kashmir on the ground that they had qualified in the written test but were given inappropriate marks in viva voce test which affected their over all assessment. The ground for challenge was that they had faired better in the written test as compared to the selected candidates but were given low marks in the viva voce and, therefore, the entire selection was vitiated. While referring to the submissions made with respect to grant of low marks in the viva voce, the Supreme court after examining the facts found that merely on the basis of apprehension or suspicion that they were deliberately given less marks at the oral interview as compared to rival candidates, it cannot be said that the process of selection was vitiated. In the present case the only contention is that the marks obtained in the interview are not in commensurate with the academic marks of the petitioner. This court, therefore, comes to the conclusion that the allegation against the Commission based on vague suspicion cannot be sustained in view of the fact that there is no factual support with respect to the allegations. Counsel for the petitioner, however, argued that no rules have been laid down with respect to the allocation of marks for such selection to the post of Assistant Engineers and that 100 marks for the interview is in violation of the judgment of the Supreme court. For this 6 purpose, counsel for the petitioners refers to the decision in the case of Dr. Sadre Alam vs. State of Bihar, 1993 (1) PLJR 729 (DB). In the case of Dr. Sadre Alam he was seeking to be appointed as a Unani Medical Officer (a class II gazetted post) through the Commission. The petitioner of that case challenged the allocation of 100 marks of written examination and 100 marks for viva voce on the ground that it was against the direction of the State Government and the law laid down by the Supreme court in the case of Ashok Kumar Yadav vs. State of Haryana, AIR 1987 SC 454 and Mohinder Sain Garg vs. State of Punjab, 1990 (4) JT (SC) 794. In the case of Dr. Sadre Alam there was an entrance examination and thereafter interview was held. The court held that the appointment was illegal, after taking into consideration that no appointment had been made against the advertisement till the date of hearing of the case. In the present case appointments have been made in pursuance of the advertisement and all the selected candidates are working and have also got further promotions after their appointment. Besides this the selected candidates have higher marks than the petitioner and would, therefore, need to be displaced. Such candidates have not been made party respondents in the present case which is also a fact which comes in the way of the petitioner. This case, therefore, would not be very relevant for the purposes of deciding the issue in question. Counsel for the petitioner also referred to the case of Jasvinder Singh vs. State of Jammu & Kashmir, 2003 (2) SCC 132. This case is not very relevant as the Supreme court set aside the order 7 of the High court in which a direction was issued that those candidates who had obtained 56% marks in the written examination should be appointed on the post of Sub Inspector of Executive / Armed police in the State of Jammu & Kashmir, on the ground that the Commission had erred in keeping 20% marks for viva voce which was in excess of 12.5% marks to be allocated out of the total marks. Apart from what has been stated above, the grounds of challenge by the petitioner that he has been allocated low marks for the viva voce although he had higher marks in academics cannot be a ground for holding that the entire process of selection to be illegal. The allegations are vague based on suspicion and there is no material on the record to substantiate the same. For the reasons stated above, I find no merit in this writ petition. It is dismissed. A.F.R. / haque (Sheema Ali Khan, J.) 8 Later 23.6.2010 The records (marks sheet etc.) received from the Bihar Public Service Commission on 7.8.2009 should be returned to the counsel for the Commission under sealed cover. haque (Sheema Ali Khan, J.)