[LETTERS PATIENT APPEAL No.740 OF 2006 ---------- Appeal against the Judgment and order dated 18-8-2006 Passed by a Bench of this Court in C.W.J.C. No. 11055 of 2004. ------------ DR.PAWAN KUMAR, SON OF SRI BABULAL SINGH, RESIDENT OF QR. NO. C-162, POLICE COLONY ( GANDHI VIHAR ), ANISHBAD, P.S. GARDANIBAGH, DISTRICT- PATNA.. ………………………………………PETITIONER / APPELLANT Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPTT. OF HEALTH ( MEDICAL EDUCATION FAMILY WELFARE AN D INDIGENOUS SYSTEM OF MEDICINE), GOVT. OF BIHAR, PATNA. 3. THE DIRECTOR ( INDIGENOUS SYSTEM OF MEDICINE), DEPTT. OF HEALTH ( MEDICAL EDUCATION FAMILY WELFARE AN D INDIGENOUS SYSTEM OF MEDICINE), BIHAR, PATNA. 4. BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY, JAWAHAR LAL NEHRU MARG, PATNA. 5. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, JAWAHAR LAL MARG, PATNA. 6. THE DEPUTY SECRETARY, BIHAR PUBLIC SERVICE COMMISSION, JAWAHAR LAL NEHRU MARG-PATNA 7. DR. SHYAM SUNDAR SINGH, SON OF SHRI ATAR SINGH AT PRESENT POSTED AS HOMEOPATH DOCTOR ADDITIONAL PRIMARY HEALTH CENTRE, HAJIPURA HAT, VAISHALI, HAJIPUR, P.S. LAL GANJ, DISTT. VAISHALI.. RESPONDENTS. FOR THE PETITIONER:- MR. ASHOK KUMAR. SINHA, SR. ADVOCATE, M/S SANTOSH KR.SINGH FOR THE STATE OF BIHAR: MR. S.K.GHOSE,SR.ADVOCATE A.A.G. II MR. RAJESH KR.SINGH,ADV. FOR RESPT. NO. 7 MR. D.K.SINHA,SR.ADVOCATE MR. RAKESH INHA,ADVOCATE FOR B.P.S.C. MR. SANJAY PANDEY,ADVOCATE P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ------------ 2 Shiva Kirti Singh,J Heard learned counsel for the appellant/writ petitioner, learned A.A.G.2 for the State and learned counsel appearing for the Bihar Public Service Commission. 2. Learned counsel for respondent no.7 is also present to support the impugned judgment of the writ court dated 18- 8-2006 whereby the writ petition bearing C.W.J.C.No. 11055 of 2004 preferred by the appellant was dismissed on merits along with another writ petition bearing C.W.J.C.No. 1218 of 2004 filed by one Dr. Gauri Nath Jha who wanted his appointment to the post concerned on the basis of promotion. His writ petition was also dismissed after holding that the post of Deputy Director, Homeopathic was an Ex-cadre post and therefore, by virtue of being a member of particular cadre nobody could claim such a post by promotion, as a matter of right. We have been informed that L.P.A. No. 679 of 2006 preferred by Dr. Jha has been dismissed by a Division Bench of this court on 8-10-2007. Therefore, now there is no obstacle in the way of the authority in filling-up of that post on the basis of advertisement which was issued in the year 2004 being advertisement no. 03/04 whereby the Bihar Public Service Commission ( in short B.P.S.C.) invited applications 3 from eligible candidates. 3. The appellant as well as respondent no.7 applied for the said post of Deputy Director ( Health ). The Commission finally selected respondent no.7 leading to his appointment and being dis-satisfied with such development the appellant preferred writ petition questioning the validity of the selection process. As noted earlier the writ petition had been dismissed by the impugned order. 4. Before us, learned counsel for the appellant first raised a contention that respondent no.7 was not qualified because his essential qualification of being a holder of D.H.M.S. degree for Homeopathy suffered from defects, first on account of the fact that he had not completed six months interne ship and secondly because he completed the course of Intermediate in Arts allegedly during the same period when he was pursuing D.H.M.S. Course. However, in course of arguments he did not press the first point because of legal position that six months interne ship for a degree of D.H.M.S. was not required at the relevant time. So far as issue of pursuing Intermediate in Arts is concerned, it has transpired from the submissions and after perusal of relevant records 4 that such issue was not raised before the writ court and even in the memorandum of present appeal it has been mentioned only as a ground and not as a new issue of fact. There are no details or particulars as to when respondent no.7 did his I.A. and from which organization nor anything was brought to the notice of this Court which could suggest that there was any legal bar in pursuing two courses from the concerned University at the relevant time. It is further found that on account of lack of any factual assertion on this issue there is no reply on this point in counter-affidavit filed on behalf of respondent no.7. 5. Considering the lack of factual assertion and absence of any statutory provision showing bar in pursuing two courses from particular institutions at the relevant time, we are unable to appreciate and decide the aforesaid issue. In absence of any specific regulation or provision of law and necessary facts the principle advanced on behalf of appellant that nobody is permitted in law to pursue two academic courses together, can not be of any help. We can only indicate here that there is no absolute bar of this nature in respect of all the academic qualifications and reportedly such 5 bar has come only in respect of some degrees and courses in particular Universities from different dates. Be that as it may, we find no substance in the aforesaid issue which has been raised for the first time in this appeal without factual foundation that respondent no.7 does not have requisite qualification. We find no error on the part of the Commission in treating respondent no.7 as a candidate having requisite qualification because he had a valid degree of D.H.M.S. 6. The next issue is the main issue which appears to have been canvassed on behalf of appellant/writ petitioner before the writ court also. According to learned counsel for the appellant the advertisement mentions in a separate column following the column related to essential qualifications, as to what could be qualification which may be treated as preferential qualification. That column includes a degree of B.Sc. which the appellant possess. On that basis it has been submitted that since the appellant and the respondent no.7 both are said to have possessed the requisite qualification of basic degree in Homeopathy, on account of appellant having the preferential qualification of B.Sc. the Commission ought to have given due weightage for such degree in favour of the 6 appellant so as to select him as a more suitable candidate for the post. 7. From the judgment under appeal it is evident that this issue has been addressed by the writ court after noticing the rival contentions including the submission advanced on behalf of private respondent. The writ court has noticed that petitioner has not alleged any mala fide against the Commission nor there was any material to show that it has recommended the name of the private respondent by ignoring any rule, regulation or law. In such circumstances, it fell for consideration of the writ court whether the selection made by the Commission should be subjected to judicial scrutiny and whether the correctness of the decision should be examined by the writ court under Article 226 of the Constitution of India. On this issue the writ court has referred to several judgments of the Apex Court and has discussed in details the judgment in the case of Secretary, Andhra Pradesh Service Commission Vrs. Y.V.V.P Srinivasulu and others reported in (2003) 5 SCC 341. After discussing the law on this subject the writ court further noticed that the selected candidate joined the post in 2004. This fact is not in dispute. 7 Considering everything together the writ court held that selection/appointment of the private respondent does not require any judicial scrutiny. 8. Before us the same issue has been raised for decision and we find no good material to take a different view in the matter. Learned A.A.G.2 has highlighted the judgment of the Apex Court which has been noticed by the writ court in the case of Secretary ( Health ) Department of Health and Family Welfare and Anr. Vrs. Dr. Anita Puri and others reported in (1996) 6 Supreme Court Cases 282. In that judgment the advertisement stipulated the minimum qualification for the posts and also indicated that preference will be given for higher qualification. The Court held that such stipulation merely convey that some additional weightage has to be given to a candidate with higher qualification but does not mean that a person with higher qualification is automatically entitled to be selected and appointed. In paragraph-7 of that judgment the Apex Court has observed as follows: “ In adjudging the suitability of person for the post, the expert body like the Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. 8 The competence and merit of a candidate is adjudged not on the basis of qualification he possesses but also taking into account the other necessary factors like…….” 9. In reply, learned counsel for the appellant submitted that from the chart of marks given to the candidates who appeared before the Commission for selection and which was obtained under the Right to Information Act, it would transpire that no separate marks was allotted and given for preferential qualification and marks were allotted only for essential qualification and for other parameters which could not be accepted as reasonable. He placed reliance upon judgment of the Supreme Court in the case of State of U.P. Vrs. Om Prakash reported in ( 2006 ) 6 SCC 474. That judgment does not help the appellant. Paragraph-16 of that judgment runs as follows : “ This Court has consistently held that when selection is made on the basis of merit assessed through the competitive examination and interview, preference to additional qualification would mean other things being qualitatively and quantitatively equal, those having additional qualification would be preferred. It does not mean en bloc preference irrespective of inter se merit and suitability.” 10. From the judgments noticed by the Writ Court and those which have been noticed above it is amply clear that when selection is made by an expert body, such as the 9 Commission, and there is no allegation or material to show mala fide, the court should follow the views of the Commission. It further appears as a settled proposition of law that when in a selection process merit has been evaluated and assessed by a body of experts by awarding marks against different factors and on the basis of interview, preference to additional qualification would mean that when other things are found equal both qualitatively and quantitatively then only those with additional qualification or preferential qualification may score over candidates who have no such preferential qualification. The only issue which has to be answered is whether the appellant and private respondent can be treated as candidates being qualitatively and quantitatively equal only because both possessed the basic requisite qualification. The answer has to be in negative. Once the expert body has evaluated the candidates using different parameters and awarded marks in which the private respondent was found better, he cannot be treated equal to the appellant-petitioner in the matter of selection for appointment. Since the private respondent performed better and was not equal to the appellant, his selection was not 10 violative of any legal provision nor it can be said to violate rules of fairness and equality. As noticed earlier, no mala fide was alleged or proved 11. As a result, we find no merit in this appeal. It is accordingly dismissed. There shall be no order as cots. Patna High Court, Dated the 13th July, 2010 Naresh AFR ( Shiva Kirti Singh, J.) ( B.P. Verma, J)