IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11971 of 2002 Puspa Kumari, W/o Shri Pappu Kumar, Resident of Village Hasepur, O.P.-Op., P.S. Ekangarsarai, Dist. Nalanda. -------- Petitioner Versus 1. The State of Bihar, through its Commissioner-cum-Secretary, Medical Health Education and Family Welfare Department, New Secretariat, Patna. 2. The Director-in-Chief, Health Services, Bihar, Patna. 3. Bihar Public Service Commission through its Chairman, 15, Jawahar Lal Nehru Marg, Bailey Road, Patna-1. 4. The Secretary, Bihar Public Service Commission, 15 Jawaharlal Nehru Marg, Bailey Road, Patna-1. 5. The Dy. Secretary, Bihar Public Commission, 15, Jawaharlal Nehru Marg, Bailey Road, Patna-1. 6. The Controller of Examination, Bihar Public Service Commission, 15, Jawaharlal Nehru Marg, Bailey Road, Patna-1. 7. The Special Officer, Bihar Public Service Commission, 15, Jawaharlal Nehru Marg, Bailey Road, Patna-1. ---------- Respondents ----------- 6 28.06.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That, this writ application is being filed for quashing the letter/order issued vide Memo No. 138/Lo.Se.Aa/Go, Patna, dated 9.9.2002 by the respondent Dy. Secretary, Bihar Public Service Commission (hereinafter referred as Commission) whereby and whereunder the final result of the petitioner which was published as successful candidates in the competitive examination of Auxilliary Nurse Mid-Wifery (hereinafter referred as ANM) which was held in pursuant to the advertisement no. 4/2000 has been cancelled. This writ application is further 2 being filed for issuance of an appropriate writ/writs, order/orders, direction/directions, commanding the respondents to declare the result of the petitioner as successful candidate in the Competitive Examination of ANM which was held in pursuant to the advertisement no. 4/2000 and to grant her all consequential benefits thereof.” Counsel for the petitioner, with reference to the aforementioned relief, would submit that once the Commission had issued the press communiqué containing roll number of the petitioner amongst the successful candidates duly recommended for appointment on the post of Auxiliary Nurse Midwifery (ANM), it was not open for the Commission or for the Government to ignore such recommendation. He would further submit that the plea taken in the counter affidavit or in the impugned order of reduction of post is absolutely misconceived. The respondents have in fact explained this aspect in the counter affidavit, wherein it has been stated as follows:- “5. That out of 1271 selected candidate, 346 candidate of Backward Category were recommended hence only 400-346=54 post of B.C. 3 Category remain vacant. And in second phase 742 Candidates were found fit for selection and there name were recommended for appointment, out of 742, 54 candidates were of Backward Category Candidate. 6. That it is pertinent to mention here that in compliance with the order passed by Hon’ble High Court in C.W.J.C. No. 5394/99 (Nilam Kumari and others Versus State of Bihar and others) one candidate of backward category was recommended. This was in addition to 346 Candidate recommended earlier. Therefore taking one candidate on account 346+1=347 were already fill up in Backward Category and only 53 posts were vacant. 7. That in advertently at the time of published the result of second Advertisement one post in B.C. Category which was recommended in compliance with the direction of High Court’s order mentioned above was left to reduced. As a matter of fact only 53 candidate should have been selected in Backward Category instead of 54 Candidate which were published in Newspaper in natural lapses, accordingly the last candidate from the backward category has been out. 8. That the last successful candidate of 05 Category i.e. Backward class whose roll no. is 5253 secured 55 4 marks got more marks of the candidates of 06 category i.e. backward ladies classes and the petitioner was the last candidate of that (06) Category who secured 53 marks less than the Roll No. 5233.” The copy of the counter affidavit was served on the counsel for the petitioner way back on 2.12.2002 but the petitioner has not filed any rejoinder affidavit controverting any of the aforementioned statements. Counsel for the petitioner, however, submitted that there was no requirement for the petitioner to file such a rejoinder affidavit, inasmuch as, from the documents in question, the result sheet itself, it would be clear that such plea of the respondents is false. In this context, he would refer to Annexure-9 to contend that result of 54 candidates was initially published in the category 05(backward class) and further 80 candidates were screened in the final result of category 06 (economically week family). The difficulty for the petitioner would be that the Commission has not only said about the number of backward candidates 5 but has also explained that the petitioner had secured 53 marks only whereas last person appointed was having 56 marks. Once this aspect becomes clear that no one having lesser marks to the petitioner was recommended or appointed, the petitioner cannot have a right only because at any point of time her name was included in the final list. The Commission has explained that this was an inadvertent error and that too on account of the miscalculation of vacancy on account of implementation of the order of this Court. This Court, therefore, is satisfied that the denial of appointment to the petitioner by way of impugned order as contained in Annexure-1 does not contain any infirmity and accordingly, this application, being wholly misconceived, must be and is hereby dismissed. Rsh (Mihir Kumar Jha, J.)