CIVIL WRIT JURISDICTION CASE No.12674 OF 1999 (In the Matter of an application under Article 226 of the Constitution of India.) 1. DR.RAJESH KUMAR TRIPATHI S/O SRI K.K.M. TRIPATHI RESIDENT OF JAGAT NARAIN ROAD, NEW AREA KADAMKUAN, P.S. KADAMKUAN, PATNA 3 2. DR. RAMESH SINGH S/O SRI RAM LAKHAN SINGH, R/O VILL. BHATWNI POST-DEOHLIA ( KABILASPUR) DIST. KAIMUR( BHABUA), BIHAR. 3. DR. ARUN TIWARI, S/O SRI S.N. TIWARI R/O VILL. SARUA, DIST. DUMKA. 4. DR. MANOJ KUMAR RAI S/O SRI SHIV SHANKAR RAI, R/O VILL.& POST REOTIPUR, PATTI-BAHORIK RAI DIST. GAJIPUR A/P C/O SRI SURESH PRASAD SINGH, PIPARPATI, RANG BAHADUR ROAD, KOTWALI,GAYA. 5. DR. PAPENDRA KUMAR GUPTA, S/O SRI RAMASHIS SAH R/O SONDHO, POST ANDHERI GACHHI, VIA- GOROUL, DIST. VAISHALI, AT PRESENT RESIDENT OF HOUSE OF DR. MADAN PRASAD, E-19, PEOPLES CO-OPERATIVE COLONY, KANKARBAGH, PATNA. 6. DR. SUNIL MISHRA S/O SRI RAM NARESH MISHRA R/O HOUSE OF BINOD KUMAR BANARSI, KUMAR KIRANA STORE, BAILY ROAD, RAJA BAZAR, POST BIHAR VENTNARY COLLEGE, PATNA.14. ----- PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. THE COMMISSIONER-CUM-SECRETARY, HEALTH, MEDICAL EDUCATION & FAMILY WELFARE DEPARTMENT,FAMILY WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE ADDITIONAL COMMISSIONER, HEALTH, MEDICAL EDUCATION &FAMILY WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE DIRECTOR, DESHI CHIKITSA, DIRECTORATE OF INDIGENOUS SYSTEM OF MEDICINE, BIHAR, NEW SECRETARIATE ( VIKASH BHAWAN), PATNA. 5. BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS CHAIRMAN,15 JAWAHAR LAL NEHRU MARG ( BAILEY ROAD) PATNA-1. 6. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, 15 JAWAHAR LAL NEHRU MARG (BAILEY ROAD) PATNA. 7. THE SECRETARY, BIHAR PUBLIC SERVICE COMMISSION, 15 JAWAHAR LAL NEHRU MARG ( BAILEY ROAD) PATNA. 2 8. THE DEPUTY SECRETARY, BIHAR PUBLIC SERVICE COMMISSION, 15 JAWAHAR LAL NEHRU MARG (BAILEY ROAD) PATNA. 9. THE SPECIAL WORK OFFICER, BIHAR PUBLIC SERVICE COMMISSION 15 JAWAHAR LAL NEHRU MARG ( BAILEY ROAD) PATNA 1. 10. THE SECTION OFFICER, BIHAR PUBLIC SERVICE COMMISSION, 15 JAWAHAR LAL NEHRU MARG BAILEY ROAD) PATNA. 11. MR. ARVIND CHAURASIA. 12. MR. NAND KISHORE CHAUDHARY 13. MR. WAKIL KUMAR SINGH 14. MR. PRABHAT KUMAR DWIVEDI 15. MR. VIMAL KUMAR SHARMA 16. MR. PANNALAL GUPTA 17. MR. SHAILENDRA KUMAR PANDEY 18. MR. RAM PRAKASH VERMA 19. MR. MUKUL KUMAR DIXIT 20. MRS. SUNITA PANDEY 21. MR. KUMKUM 22. MR.UDAY NARAYAN. PANDEY 23. MRS. ARTI TRIPATHI 24. MR. HARI SHANKAR THAKUR 25. MRS. MADHU VERMA 26. MR. UMESH CHANDRA BHASHKAR 27. MR. MAKARAND KUMAR MISHRA 28. MR. NIRMAL KUMAR SINGH 29. MR. AMRENDRA KUMAR PATHAK 30. MR. PRABHAT KUMAR 31. MR. RAKESH KUMAR JAISWAL 32. DR. PUNAM KUMARI 33. MR. NIRMAL KUMAR SINGH 34. MR. PRAMHANSH PRASAD. 35. MR. RAVINDRA NATH PRASAD 36. MR. ARUN KUMAR SINGH 37. MR. PREMCHAND 38. MR. BHARAT KUMAR VIKRAM 39. MR. SHYAM LAL RAM 40. MR. PREM CHANDRA DAS 41. MR. RAMA SHANKAR PRASAD Appointed Ayurvedic Medical Officers, All C/o the Commissioner-Cum-Secretary, Health, Medical Education & Family Welfare Department, Government of Bihar, Patna. ----------------------------- (Respondents) For the petitioners : Mr.Shailendra Kumar Verma, Senior Advocate. For the respondent Nos. 5-10 : Mr. Tara Kant Jha, Senior Advocate. 3 For the respondent Nos. 11-15,17-22,25-28 & 32-41 : Mr. Dinesh Kumar Singh, Sr. Advocate. For respondent No.23 : Mr. Hare Krishna Prasad, Advocate. --------- P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR & THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ********** S.K.Katriar & Kishore K. Mandal,J.J. Heard Mr. Shailendra Kumar Verma for the petitioners, Mr. Tara Kant Jha for respondent nos. 5-10, Mr. Dinesh Kumar Singh for respondent nos. 11 to 15, 17 to 22, 25 to 28, 32 to 41, and Mr. Hare Krishna Prasad for respondent no. 23. The petitioners challenge the selection process for appointment of Ayurvedic Medical Officers on the recommendations of the Bihar Public Service Commission (hereinafter referred to as the Commission), for a direction to the Central Bureau of Investigation to investigate the irregularities in the selection process and cancel the appointment of the private respondents. The petitioners submit in the alternative that, in view of availability of vacancies, the petitioners may be considered against the same. The respondents have placed on record their counter 4 affidavits. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The Commission had issued advertisement in the year 1997, inviting applications from the eligible candidates for appointment of Ayurvedic Medical Officers. The petitioners were candidates for the same and reached upto the stage of Viva-Voce test, being the last phase of the selection process. The final result was published on 07.10.1999, whereby the private respondents were recommended for appointment, but the petitioners did not find their way into the merit list. The private respondents were appointed, and are discharging their duties and functions since the year 2000. Hence this writ petition. 3. While assailing the validity of the selection process, learned counsel for the petitioners submits that the selection process from the beginning to end is afflicted by malpractice and irregularities and is, therefore, fit to be investigated by the C.B.I. He next submits that a number of selected candidates were not eligible to be considered in terms of the advertisement. 5 Many of them were not registered as Medical Practitioners in the State of Bihar. The interview board comprised of incompetent persons. He also submits that they were allowed to rectify the defects after expiry of the cut-off date. He also submits that the written papers carried 500 marks, whereas viva-voce tests carried 200 marks, which, according to the authoritative pronouncement of the Supreme Court, is disproportionate and provides adequate space for favouritism. He has also submitted in the alternative that the petitioners are equally qualified persons, domicile of the State of Bihar, and may be considered against the existing vacancies lingering since the advertisement. 4. Different set of respondents in their submissions have opposed the writ petition. Learned counsel for the Commission has taken us through its elaborate counter affidavit. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The candidates were required to be registered as medical practitioners in the State of Bihar. 6 The Commission noticed that a large number of candidates were from the State of Uttar Pradesh, who had been registered there much before the cut-off date. Therefore, in order to allow them to cross this technical bar, namely, they were not formally registered in the State of Bihar, and also in view of the position that such candidates were in large numbers, the Commission took the administrative decision that all such candidates who ensure their registration in the State of Bihar prior to the date of commencement of the written examination, shall be treated to be eligible candidates and shall be allowed to appear in the examination. In view of the materials on record, this court is convinced that this was a bona fide, administrative decision in the circumstances of the case, and was applied uniformly. They were otherwise eligible in all respects including valid registration in the State of Utter Pradesh. 6. There is unitary citizenship in the country, Article 19(d) of the Constitution guarantees freedom to move freely throughout the territory of India, and Article 19(G) guarantees right to practise any 7 profession or to carry on any occupation, trade or business. In the totality of the circumstances, we are convinced that the successful candidates satisfied the basic conditions of eligibility indicated in the advertisement. Secondly, in all such selection processes, a distinction has always to be made as to which condition is mandatory and may go to the root of the matter, and which one is fit to be condoned in extraordinary circumstances, or which lacuna is fit to be rectified before a particular date. Judging from this angle also, we do not find any fault with the impugned action. We are convinced that none of the essential and mandatory conditions indicated in the advertisement were fulfilled by the successful candidates. The contention is rejected. 7. The petitioners have found fault with the candidature of respondent no.16. On a perusal of his counter affidavit, we observe that he has placed on record photo copies of all his certificates. On a conjoint reading of the same we are convinced that he answered the description of the advertisement. His candidature cannot be faulted. 8 8. The petitioners have found fault with the candidature of respondent no.20. The petitioners have contended that she was not a domicile of the State. There are materials on record which show that she was married in Bihar in the year 1997, which is a complete answer to the objection. The contention is rejected. 9. The petitioners have also contended that distribution of marks between the written papers and the Viva-Voce test was disproportionate, affording adequate opportunity to the Commission for favouritism. Learned counsel for the petitioners is right in his submission that the Supreme Court in its authoritative pronouncements have observed that the written papers should carry as many marks as possible, and the viva-voce test should carry as less as possible. In the present case, that the viva-voce test carried 20% marks in comparison to 500 marks for the written papers. From a perusal of judgments of the Supreme Court, we are of the view that the same should have carried lesser marks, not exceeding 10%. However, in the facts and circumstances of this case, we would not allow this objection to prevail in a situation where no 9 specific allegation has been levelled that the same was misused. Furthermore, the successful candidates joined way back in the year 2000. We would not like to unsettle the settled affairs for such an objection and for the reasons indicated above. 10. We should also consider the alternative prayer made on behalf of the petitioners that they should be considered against the existing vacancies continuing from before the date of advertisement. In his submission, these are not post-advertisement vacancies. In the facts and circumstances of the case, we do not wish to accede to the submission, inter alia, for the reason that they failed to secure even cut-off marks. 11. In the result, we dismiss this writ petition. In the facts and circumstances of the case, there shall be no order as to costs. Patna High Court, Dated the 11th May, 2009, N.A.F.R./Sym (S.K.Katriar, J.) (Kishore K. Mandal, J.) 10