Letters Patent Appeal No.839 OF 2006. - - - - Against the judgment and order dated 15th September 2006 passed in C.W.J.C.No. Of 2006.6615. - - - - THE BIHAR STATE ELECTRICITY BOARD-------Appellant. Versus RABINDRA NATH & ORS--------------------------Respondents. For the Appellant : Mr.C.K.Sinha, Sr. Adv. Mr. Vinay Kirti Singh, Mr.Vijay Kumar Verma,Advs. For the Respondents : N o n e . P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH. THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD. Barin Ghosh & C.M.Prasad,JJ A prayer was made on behalf of writ-petitioner respondent to adjourn the hearing of the appeal on the ground that the learned counsel engaged by the writ- petitioner respondent has gone to Ranchi to attend to a case at Jharkhand High Court. Grant of adjournment on the ground that the lawyer engaged by a litigant is engaged in another Court is now barred by law. Accordingly, we have refused to grant adjournment, as was prayed for. The writ-petitioner respondent appeared in a competitive examination. He was appearing as a scheduled caste candidate. As a scheduled caste candidate, he was - 2 - required to obtain at least 35 per cent marks for qualifying the examination. Only after having had qualified in the examination thus, the writ-petitioner respondent could compete with other scheduled caste candidates for supplying vacancies of the posts reserved for scheduled caste candidates. In the writ petition, it was contended that the writ-petitioner-respondent did fairly well in the examination and there was at least one post reserved for scheduled caste candidates, but while the writ-petitioner respondent was not selected for supplying the said vacancy, no one else was also selected for supplying the said vacancy. It was contended that there was no just reason to hold out that the writ-petitioner respondent did not secure the basic qualifying marks. The writ petition was contested by the appellant by filing a counter affidavit, wherein it was indicated that the writ-petitioner respondent obtained merely 22 per cent marks in the examination, while the basic qualifying mark was 35 per cent. It was also stated that if the Court so desires, the appellant can obtain the answer scripts of the writ-petitioner respondent. The Court directed - 3 - production of answer scripts of the writ-petitioner respondent. The appellant could not produce the same. The appellant contended that the examination in question was conducted through an outside agency and when the appellant approached the said agency for obtaining answer scripts of the writ- petitioner respondent, the appellant was informed by the said agency that they retain answer scripts for one year and since the request for supplying the answer scripts of the writ-petitioner respondent was made after one year of the examination, they are unable to make the same available to the appellant, inasmuch as those have been destroyed. Inasmuch as the appellant failed to produce the answer scripts of the petitioner, an adverse inference was drawn against the appellant and on the basis thereof, the writ petition has been allowed by the judgment and order under appeal. The appellant contends that there is no dispute that the examination in question was conducted through an outside agency and that the appellant at the first opportunity indicated what marks the petitioner had secured in the - 4 - examination. The appellant further contends that it was a mistake on the part of the appellant in not calling for the answer scripts of the writ-petitioner respondent after the writ petition was filed, in stead of relying only upon the tabulation chart prepared by the agency in question. It was contended that by reason of such mistake if an incompetent person is appointed, the work of the appellant would suffer immensely. Though in the facts and circumstances of the case, adverse inference could be drawn, but having regard to the contention that by reason of mistake on the part of the appellant, an incompetent person will be engaged as a public servant, we think before allowing the writ petition, an effort ought to have had been made to ascertain as to whether writ-petitioner respondent had the basic eligibility to serve as a public servant under the appellant. Accordingly, we dispose of the appeal by directing the appellant to hold a similar test as was held earlier for the writ-petitioner respondent only on 15th December 2008 at 11:00 A.M. at such Office of the appellant as the appellant may deem fit and proper, notice in respect whereof must - 5 - reach the petitioner on or before 28th November 2008 by registered post with A/D. The appellant is directed to preserve the question paper and the answer scripts of the writ-petitioner respondent in respect of the examination to be held in terms of the above direction, at least for three years from the date of examination. In the event the writ- petitioner respondent secures the minimum 35 per cent marks at the said examination, it goes without saying that in compliance of the order of the writ Court the appellant shall appoint the writ-petitioner respondent. The appeal, accordingly, strands disposed of. Patna High Court, Dated 25th August 08 N.A.F.R. Jay/ (Barin Ghosh,J) (C.M.Prasad,J)