Letters Patent Appeal No.1234 OF 2001 Against the order dated 12.9.2001 passed in CWJC no.11142 of 2001 DR.VEENU VANDANA & ANR--------------------------------------------(Appellant) Versus THE STATE OF BIHAR & ORS----------------------------------------(Respondents) For the appellants: Mr Yugal Kishore, Sr. Advocate For the respondents: Mr Lal Babu Singh, JC toAAG 2 P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE J.N.SINGH Barin Ghosh & J.N.Singh, JJ The appellants sat in an examination held on 6th August,2000 for being selected for pursuing Post Graduation course in Medical Colleges. On 20th October,2000 they were called at counseling . They were thereupon permitted to be admitted in the Post Graduation course in Ranchi Medical College. Such permission was thereafter withdrawn. They were once again asked to participate in counseling. They did so, but nothing happened thereafter. In the circumstance, the appellants approached this court by filing a writ petition. While contesting the writ petition, respondents disclosed that in the examination appellants got less than 50 per cent marks and in view of the decision of the Medical Council of India dated 7th October,2000 a candidate, for being eligible to pursue Post Graduation course in Medical Colleges, is required to have - 2 - at least 50 percent marks in the entrance examination . It was contended by the respondents that in those circumstances, ultimately, the appellants were not given a berth in the Post Graduation course in any of the Medical Colleges in the State. A learned Single Judge of this court having noted the decision of the Medical Council of India, dated 7th Octobher,2000 refused to entertain writ petition and hence the appellants are before us. Learned counsel for the appellants submitted that prior to 7th October,2000 Medical Council of India did not make any stipulation as to the mode and method of selecting candidates for pursuing Post Graduation course in Medical Colleges . It was submitted that Medical Colleges were competent to admit in their Post Graduation course candidates either on the basis of marks obtained by them in graduation examination or on the basis of written examination conducted by them. Learned counsel further submitted that in relation to written examination to be conducted, there was no direction as regards fixation of any particular bench mark. Learned counsel further submitted that prospectus and other materials also did not indicate that - 3 - a bench mark of 50 per cent would be fixed, instead of giving a berth on the basis of merit. Learned counsel submitted that this court in various judgments has held that it would not be appropriate to keep vacancy in technical courses and accordingly, efforts should be made to select candidates on merit. Selection of bench mark by the selector, while exercising option to conduct examination, in stead of giving admission on the basis of marks obtained at the University examination, is one thing and fixation of bench mark by a statutory authority for that purpose is different. In the instant case, bench mark had been fixed by a statutory authority namely, Medical Council of India. Unless the court pronounces that fixation of such bench mark was inappropriate and accordingly quashes the same, the court can not avoid or evade the same. It was not urged before the trial court, nor it has been urged before us that fixation of such bench mark by the Medical Council of India was not appropriate or erroneous and accordingly neither writ court, nor we have any opportunity to go into the same. However, learned counsel for the appellants - 4 - submitted that not only it was not indicated any time before the examination was held that such a bench mark may be adopted, but as the fact is by calling the appellants for counseling on 20th October,2000, the respondents proceeded on the basis that having been succeeded in the examination, the appellants are entitle to be admitted for pursuing Post Graduation course in Medical Colleges. Inasmuch as, nothing was held out to the appellants and other similarly situated persons as regards fixation of any bench mark, the success of the candidates appearing at the examination could be fixed either on the basis of their chnorogical merit or on the basis of some other bench mark to be fixed by the examiner, but which one would be adopted no indication in relation thereto had, in fact, been given to the appellants or to any of the similarly situated candidates. In such circumstance, when on 7th October,2000 the statutory bench mark came into force, the examiner had no other option but to follow the said bench mark, as no other option had been left open by the said mandate of the statutory authority. It is true, may be by not taking note of the mandate of 7th October,2000, appellants were thought on - 5 - 20th October,2000 and even subsequent thereto to have succeeded in the examination for being admitted, but the same having been based on error, was always open to be corrected and the same having been corrected, there is no scope for us to interfere. Accordingly, this appeal fails and is dismissed. (Barin Ghosh, J) ( J.N.Singh, J) The Patna High court The 16th July,2008 Shahid/NAFR