IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3678 of 2007 NUTAN KUMARI D/O Late Sukhdeo Mandal W/O Ugresh Prasad Mandal resident of village Raghopur P.S. Raniganj, Araria, At present Shantiniketan Hata, Tatma Toli Purnea P.S. Maranga District Purnea. Versus 1. THE STATE OF BIHAR 2. The Chairman, Bihar Public Service Commission Bailey Road, Patna. 3. The Principal Director, Health Services, Bihar, Patna. 4. The Commissioner Cum Secretary Health Education and Family Welfare Department, Bihar, Patna. ----------- 2 23.09.2010 Having heard counsel for the parties as with regard to the following relief:- “To giving a direction to appoint the petitioner on the post of BCG (Technician) in the department of Health Service, Bihar, Patna, who after T.B. Department Advertisement No.01/97 Category-07 applied for the post and qualified all the tests held by B.P.S.C.” this Court is of the opinion that a direction for appointment of the petitioner on the post of BCG (Technician) cannot be given, inasmuch as, the authorities could not be satisfied with regard to her possessing requisite qualification for the said post as prescribed in the advertisement. It has to be noted that by Advertisement No.1/97 the State Government had invited applications for as many as 12 posts including BCG (Technician) and the essential qualification for the same was matriculation with training from a Government Institute. The petitioner had submitted her application to the Bihar Public Service Commission enclosing a certificate of training, on the basis of which her name was also recommended, but when the verification of certificate was undergone by the appointing 2 authority, namely, officials of the Government of Bihar it was discovered that the certificate of training of the petitioner containing signature of Mr. A.A. Mallik Director T.B. Centre could not be relied without its being verified. Accordingly, the Director in Chief, Health Services made query from the Directorate of T.B. Centre, Agamkuan, Patna and its reply was received that no records of the year 1980 to 1990 of such BCG training course was available. The certificate of training of the petitioner was accordingly not accepted because it was found that the certificate produced by petitioner dated 7.2.1989 also did not contain any information as with regard to her roll number or date of admission in the said course and was more or less in the form of a testimonial. In the considered opinion of this Court, if the authority did not choose to rely on such testimonial of Mr. A.A. Mallik, an author of large number of illegal appointments made by him, the same cannot be said to be either illegal or arbitrary. It was however still open for the petitioner to supplement her case with the help of any documentary proof that she had undergone such training course, but that having been not done by her so far, a direction of this Court now for filling up the post of BCG (Technician) on the basis of Advertisement No.1/97 cannot be issued. This Court must note the submission of learned counsel for the petitioner that similarly situated persons having similar certificates issued by Mr. Mallik for the period in question, i.e. 3 from 1980 to 1990, have been appointed in the same selection. Unfortunately, not a single name of such person has been spelt out by the petitioner in the writ application which could have made the respondents liable to verify the same and file their affidavit in that regard. The plea of discrimination whenever raised by the petitioner in a writ application the same has to be specified and in fact supported by the document as was held by the Apex Court in paragraph 13 of the case of „Bharat Singh & Ors Vs State of Haryana & Ors’ and other analogous cases, reported in A.I.R. 1988 S.C. 2181 =1988 (4) SCC 534 which reads as follows:- “As has been already noticed, although the point as to profittering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of lace to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.” 4 Considering all these aspect, this Court would not find any merit in this application and the same is accordingly dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)