IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1553 of 2011 PIUSH KUMAR TIWARY, son of late Keshav Tiwary, R/0 Mohalla-New Area Piparpanti, P.O.-R.S. Gaya, P.S.Kotwali, District- Gaya………… Petitioner Versus 1. THE STATE OF BIHAR 2. The Principal Secretary, Human Resources Development Department, Government of Bihar, Patna. 3. The Bihar Education Project Council through its Executive Director, Govt. of Bihar, Patna. 4. The District Magistrate, Gaya. 5. The District Superintendent of Education, Gaya-cum- District Programme Coordinator, Bihar Education Project Council, Gaya. …………….. Respondents. ----------- For the petitioner: Mr. Ashutosh Ranjan Pandey, Advocate For Bihar Education Project Council: Mr. Girjesh Kumar, Advcoate For the State: Mr. Putul Sinha, A.C. to G.A.6 -------- 4. 25.4.2011 Heard learned counsel for the petitioner and learned counsel for the Bihar Education Project Council. The sole grievance of the petitioner is against the violation by the respondent Bihar Education Council of the terms of advertisement dated 2.6.2008 (Annexure-1), by which the respondents are calling the candidates for interview without holding any written examination. The short facts of the case are that the respondent authorities issued an advertisement dated 2.6.2008 advertising among others the posts of Account Assistant-cum- Data Entry - 2 - Operator (District Level Office and Block Resource Centre). Twenty Five such posts were advertised and they were to be filled up on contractual basis on lump sum monthly payment and the qualification was fixed as Commerce Graduate having 55 % marks with a Computer Diploma of six months and further experienced candidates were to be given priority. It was further provided in condition No.3 of the advertisement that the candidates would be selected on the basis of written examination/interview (wherever required) and on the basis of qualification by the Selection Committee. The petitioner, who was working as Account Assistant-cum-Data Entry Operator on daily wages basis under the Bihar Education Project Council at Gaya having the requisite qualification and experience, applied for the same. Although, according to the petitioner, there were a large number of applicants but no written examination was held and the petitioner was not called for interview. In the counter affidavit filed on behalf of Respondent No.5, the stand taken is that on receipt of applications, the same were - 3 - scrutinized and since they were in large number, a minimum cut-off marks on the basis of requisite eligibility for each of the posts has been decided and accordingly, a select list has been prepared for the purpose of holding the interview, which was scheduled to be held on 24.1.2001. It is further stated that for the post of Account Assistant-cum-Data Entry Operator, for which the petitioner was an applicant, the minimum cut-off marks was fixed at 66.75% and since the petitioner was having 61% marks only, hence, he was not included in the select list of candidates called for interview, which had been held on 24.1.2011. It is the specific stand of learned counsel for the Bihar Education Project Council that holding of written examination was not a mandatory condition and since the petitioner did not possess cut-off marks, hence, his name could not be included in the select list and was not called for interview. Learned counsel for the petitioner submits that once the advertisement provided that the selection would be made on the basis of written examination/ interview (wherever - 4 - necessary) and on qualification, it was not open to the respondents to have given up the condition regarding holding of written test, specially when the number of applicants was quite large. It is submitted that non-holding of the examination in the face of what is stated in the advertisement is an arbitrary action on the part of the respondents. It is not clarified in the counter affidavit as to what was 65.75 % cut-off marks, although learned counsel for the respondent submits that the same was the marks obtained in the B.Com. examination. On a consideration of the submissions of learned counsels for the parties and in the facts and circumstances of the case, this Court is of the view that the authorities of the respondent Bihar Education Project Council have not acted in accordance with the recruitment process laid down in their advertisement. Even the counter affidavit is silent as to whether any marks was awarded for the other educational qualifications from Matriculation onwards, apart from the marks obtained at the stage of Graduate or whether any additional marks were awarded to those who were Post-Graduate. It is not even - 5 - clear that the cut-off marks was only on the basis of performance in B. Com. examination. On the other hand, the requirement as per the advertisement only was a Commerce Graduate having 55% marks. Learned counsel for the Education Project Council sought to emphasize that the advertisement had not made the written examination/interview mandatory, since it was mentioned ‘wherever necessary’, but he was unable to show either on the basis of the counter affidavit or otherwise as to under what circumstances, the written examination or the interview would have been considered necessary. This definitely shows that the authorities have proceeded in an unreasonable manner in carrying on the process of recruitment against the terms of the advertisement. Nowhere in the advertisement, it was mentioned that the candidates shall be shortlisted on the basis of marks obtained by them in the B. Com. Examination. According to the petitioner, as many as 500 candidates had applied, regarding which fact nothing has been stated in the counter affidavit but it is evident from the - 6 - select list that the application number mentioned goes beyond even 600. It is open to the authorities, which are State within the meaning of Article 12 of the Constitution to choose any reasonable mode of recruitment to the posts, but the said mode of recruitment must be in terms of the advertisement. Nowhere, it is provided that the candidate shall be judged only on the basis of the performance in the B.Com. examination. It was clearly stipulated in the advertisement that the selection would be made on the basis of written test/interview and thus even if the shortlisting had been made, it could have only been either on the basis of written test or interview and not by any other mode, as the authorities of the respondent Council thought fit, unless they lay down the said mode in the advertisement itself or brochure released along with it or rules and regulations, but no such thing has been pointed out before this Court. In the above circumstances, this Court is of the view that the authorities of the respondent Education Project Council have not proceeded in terms of their advertisement in the - 7 - matter of selection of Account Assistant-cum- Data Entry Operator and thus the grievance of the petitioner that he has been denied a right to be included in the recruitment process in accordance with the advertisement is justified. The writ application is, accordingly, allowed and the respondent authorities are directed to call the petitioner also for interview and consider his case thereafter in accordance with law as held above. Alternatively, it would be open to the authorities to conduct the selection process afresh in terms of the advertisement. VPS ( Ramesh Kumar Datta, J. )