1. Heard learned counsel for the parties.
2. In all these writ applications, the petitioners, being the aspirants for selection and appointment on the post of Pharmacist, have assailed the result of 468 candidates, who were declared to be successful by the Bihar Staff Selection Commission (hereinafter to be referred to as the Commission) in its communiqué published on 9.5.2012. A consequential prayer has also been made for preparing fresh list of selected candidates after holding fresh interview and giving due weightage to academic qualification specially in the Pharmacy examination in accordance with the past practice as well as the prevalent policy of the State Government.
3. These six writ applications, which were also heard together with other batch of writ applications relating to the same selection and appointment on the post of Pharmacist, are however being separately disposed of as in these cases, primarily the issue of anomalies in the process of selection has been raised. Let it be noted that in the other batch of writ applications, the eligibility condition of age or the violation of the government policy of roaster and reservation were addressed and they have been also separately disposed of.
4. The petitioners of these six cases, as noted above, have questioned the process of selection. The facts giving rise to these writ applications being the same and similar, which have been noted by this Court in CWJC No. 706 of 2012 (Jawahar Lal Singh and Anr. Vs. The State of Bihar and Ors.) need no further repetition save and except that in terms of an order of this Court dated 21.7.1999 in CWJC No. 4302 of 1998, an advertisement was published by the Commission for filling up 1059 post of Pharmacist on 25.1.2000 but, for various reasons, the selection process could not make any headway and a writ application was filed in this Court being CWJC No. 11405 of 2004 wherein a prayer was made for issuance of a direction to the respondents to make appointment and issue appointment letter in terms of the advertisement dated 25.1.2000.
5. It was during pendency of the writ application that the cadre rule, namely, Bihar Pharmacist (Prakriya, Seva Sart and Bharti) Niyamwali, 2004 was framed and was brought into force. This recruitment rule of the year 2004 had envisaged holding of a written test of 85 marks whereas interview was to be held for remaining 15 marks. In terms of the aforesaid Rules, a new advertisement of 1116 posts of Pharmacist was advertised on 7.4.2006. The aforesaid advertisement was also made subject matter of consideration before this Court in CWJC No. 11405 of 2004 which was disposed of by an order dated 14.11.2007 wherein on the basis of the undertaking given by the Commission, a direction was issued that the earlier post of Pharmacist advertised on 25.1.2000 shall be filled up by holding a separate selection test and to that extent, it would be useful to quote the relevant portion of the order of this Court dated 14.1.2007 in CWJC No. 11405 of 2004, which reads as follows:-
œThese writ applications for having common controversy are heard together and being disposed of by this common order with the consent of the parties.
Heard learned counsel for the petitioners, State and also the counsel appearing on behalf of respondent no.5.
A fourth supplementary counter affidavit has been filed on behalf of respondent no.3 stated in paragraph 5 to the effect that the department of health has resolved the controversy and decided to hold separate selection test for applicants of the advertisement no. 22/Pharma-1/99 (Annexure-6 of CWJC No. 11405 of 2004). Paragraph 5 of the aforesaid fourth supplementary counter affidavit is quoted below:-
œThat it is submitted that the Health Department has decided to hold a separate selection test for the applicants of advertisement No. 22/Pharma-1/99 against vacant sanctioned posts of pharmacists remaining in the State after the bifurcation of the two successor State of Bihar and State of Jharkhand till 1999.?
The petitioners filed the above writ application for commanding the Respondent-State to complete the process of the appointment on the post of Pharmacists in terms of the advertisement No. 22/Pharma-1/99 pursuant to the order of this court passed on 21st of July 1999 in C.W.J.C. No. 4302 of 1998 without delay. The respondents-State after good deal of endeavour has now finally decided that the Department of Health shall be holding a separate selection test for the appointment in terms of the aforesaid advertisement as contained in Annexure-6.
In view of the statement made in paragraph-5 of the 4th supplementary counter affidavit filed on behalf of State, the petitioners have no further grievance to be considered in this writ application.
In view of the above stand of the State as stated in paragraph 5 of the above affidavit, the writ application are disposed of directing the respondent nos. 1 to 4 to hold a separate selection test for the applicants of Advertisement no. 22/Pharma-1/99 (Annexure-6 of CWJC No. 11405 of 2004) and fill up the vacancies in accordance with the terms and conditions mentioned in the said advertisement with respect to the available vacancies against the sanctioned post of Pharmacists remaining in the State of Bihar after the bifurcation of the State of Bihar under Bihar Reorganization Act till the year 1999 i.e. the date of advertisement.
The above exercise and the final appointment of the selected candidates be made and completed within a period of six months from today.?
(Underlining for emphasis)
6. In terms of the aforesaid order dated 14.11.2007, as the selection and appointment on the basis of advertisement dated 25.1.2000 was to be made within a period of six months but when the same was not done, a contempt application, MJC No. 1750 of 2008 was filed which was followed by a writ petition, CWJC No. 3107 of 2009 wherein a communiqué of the Commission dated 3.2.2009 as with regard to filling up the post of Pharmacist advertised on 25.1.2000 on the basis of a written test followed by interview as introduced by the 2004 Recruitment Rules was assailed. This Court by an order dated 23.12.2009 had disposed of the aforesaid writ application and the connected contempt application wherein it was held that the selection for the posts of Pharmacists had to be conducted by the Commission strictly in terms of advertisement dated 25.1.2000, which had envisaged only interview as the mode of selection. This Court in this regard had specifically held that those posts of Pharmacist advertised on 25.1.2000 could not be filled up on the basis of provisions made in the requirement of 2004 envisaging written test and interview. It would be thus necessary for me to quote the relevant portion of the order of this Court dated 23.12.2009, which reads as follows:-
œ----After hearing the submissions of the parties and their respective pleadings as also affidavits, in my opinion, the controversy, as to on whose account the matter of appointment got delayed for several years, need not be gone into at this stage. During the course of hearing, all the parties expressed their sincere concern that the paramount need of the hour is the appointment of the eligible candidates at the earliest since by now the delay has occasioned roughly for about ten years from the date of the advertisement. So far as the petitioners are concerned the primary concern is of their appointment without any further delay, and as such, their apprehension that any departure of the procedure for selection and appointment other than one laid down in the advertisement will cause much hardship and further undue delay, may not be unfounded. So far as the State Government is concerned it is on record that they did take steps for appointment, however the process could not be completed on account of various factors including the bifurcation of the State of Bihar, re-determination of the vacancies, initiating the process of scrutiny of the applications by the department itself followed by the correspondence entrusting the job of scrutiny, selection and recommendation for appointment to the Commission even during the pendency of the writ petition from which it can not be said that they were not taking steps for appointment. However the promptness and the seriousness in completing the process of selection and appointment within the time, as indicated in the orders of this Court, were lacking much in view of the admitted position that the hospitals and health centers of the State were running with a very few number of pharmacists and consequently people at large continued to suffer. The Commission, an agency of the State, could have avoided much undue delay in accepting the job of selection and recommendation which the State had been requesting through its several letters. The initial stand of commission that in terms of section 10 of the Staff Selection Commission Act, 2002 the Commission is not permitted under the law to carry on the job of selection with respect to an advertisement issued by the State Government or Bihar Public Service Commission was not correct. In terms of the aforesaid provisions it is only the advertisement which was issued by the Bihar Public Service Commission, the Staff Selection Commission could not go ahead with the selection or appointment against such advertisement. It does not cover the cases in which the advertisements have been issued by the State Government or the authority other than the Bihar Public Service Commission.
Be that as it may, this Court is not inclined to go further into the matter since the Commission later agreed to carry on the work of scrutiny, selection and recommendation for appointment. As regard the mode of selection The relevant clause 1 and 7 of the advertisement is quoted below :
œ(LANGUAGE)?
On conjoint reading of the aforesaid clauses of the advertisement it is manifest that the minimum qualification for appointment of Pharmacist in question is matriculate with diploma in pharmacy and having got registered with the Bihar State Pharmacy Council. The qualification matriculate with diploma in pharmacy is the minimum, and as such, candidates possessing higher technical qualification can not be said to be ineligible. Therefore, the candidates have higher qualification are equally entitled to receive consideration for the appointment in question in terms of the advertisement. On considering the aforesaid clause 7 it is also manifest that the selection and appointments of the eligible candidates are to be made on the basis of the interview of the candidates suitable for the job. The necessity of adopting any other mode of screening including written test is called for only in case the number of candidates are large in number and interview of such large number of candidates may not be conveniently possible without down sizing the number of eligible candidates. It is relevant to note the fact that as per the stand of the State, the total number of candidates is about 1800 although according to the petitioner the eligible candidates are 761 only. Therefore, even accepting the number of eligible candidates as indicated by the State, the candidates for interview calling even three times of number of vacancies which are 771, a fact not in dispute the number of candidates can not be said to be large in number and may not be possible to hold interview of the candidates conveniently. Therefore, in terms of the advertisement in question the selection and appointment in question is to be made on the basis of the interview and no written examination is called for in view of the facts of the present case.
In view of the discussions made above, the interim order passed by this Court dated 20.05.2009 passed in C.W.J.C. No. 3107 of 2009 stands vacated and the press communiqué dated 06.05.2009 as contained in Annexure-F of the interlocutory application to the said writ application is quashed. This Court in the interest of justice, passes the following orders/directions :
(IV) The Chairman of the Staff Selection Commission, Bihar Patna shall ensure that the scrutiny of the applicants who made applications pursuant to Advertisement no. 22/pharma/1/99 dated 25.01.2000 for appointment on the post of pharmacists is completed by 30th of January, 2010.
(II) Immediately upon the scrutiny and preparation of the list of eligible candidates in terms of the advertisement, the candidates should be issued interview letters indicating the date of interview. The interview of the eligible candidates be completed by 15th of March 2010. (III) The list of selected candidates recommended for appointment shall be sent to the Commissioner-cum-Secretary, Health Department, Govt. of Bihar, Patna so as to reach him by 30th of March, 2010. The Commission shall publish the list of selected candidates for appointment at least in two of the daily newspapers published from Patna.
(IV) The Commissioner-cum-Secretary, Department of Health, Govt. of Bihar, Patna shall ensure that the appointment letters in respect of the selected candidates are issued indicating the place of their postings so that the appointed candidates may join their respective posts by 30th of April, 2010.
All the above contempt applications as also writ application are, accordingly, disposed of with the above observations/directions.?
(Underlining for emphasis)
7. Thus, in view of the order of the learned single judge, the post of Pharmacist advertised on 25.1.2000 in accordance with the terms and condition of the advertisement was to be filled up only on the basis of interview without subjecting any candidate to written test and interview. This order of the learned single judge was made subject matter of an appeal in LPA 399 of 2010 at the instance of the Commission but the same was dismissed by a judgment dated 16.9.2010 by the Division Bench affirming the aforesaid order of the learned single judge wherein it was held as follows:-
œWe do agree on principle that it is the prerogative of the appointing authority or that, in absence of the statutory rules, it is the prerogative of the employer to decide on the mode of the selection. But it is fallacious to say that the learned Single Judge has traversed on the field especially confined to the employer or the selecting authority. It was the employer or the Director of Health Services who had decided to make selection on the basis of oral interview. All that the learned Single Judge has directed is to confine the selection procedure to the terms of the advertisement. In our opinion, the learned Single Judge cannot be said to have encroached upon the authority of the appointing authority or the selecting authority.
Ordinarily, if the appointing/selecting authority had felt the necessity for screening test, we would not have interfered with such decision. But, in the present case the special circumstances that weighed with the learned Single Judge are that the advertisement was issued as far back as in the month of January 2000. The selection has not been made yet after nearly 10 years. Besides the number of eligible applicants is just two times the available vacancies. Under the normal rule of service, State is expected to interview not more than three candidates for each vacancy. In other words, three times the available vacancies. As recorded hereinabove, in the present case the available candidates are not even two times the vacancies available. Therefore, there should not be any need for short listing the eligible candidates or to hold the screening test for short listing the eligible candidates.
In our opinion, the learned Single Judge has rightly issued the impugned direction directing the appellant to proceed further with the selection procedure in accordance with the advertisement. For the aforesaid reasons, the Appeal is dismissed.------?
8. The issue in hand thereafter had gone to Apex Court because the Commission had filed SLP No. 11160 of 2011 against the aforesaid judgment of the Division Bench dated 16.9.2010 in LPA No. 399 of 2010 but the direction given by this Court for holding the selection and making appointment on the post of Pharmacist against the post advertised on 25.1.2000 by the mode of interview alone was affirmed even by the Apex Court, which had dismissed the Special Leave Petition of the Commission in limine.
9. It is only thereafter that the Commission ultimately had conducted the interview in between 24.10.2011 to 9.12.2011 and on the basis of its interview had declared the result in the impugned communiqué dated 9.5.2012 containing the merit list of 468 candidates, which has been assailed in all these and other writ applications on different grounds.
10. In CWJC No. 12382 of 2012, such challenge of the petitioner is basically on the ground that the marking made by the Interview Committee on the performance of the candidates in oral interview without giving any due weightage for the marks secured by the candidates in the matriculation examination and the Pharmacy examination was bad. In this regard, the petitioners have relied on an earlier practice with regard to appointment on the post of Pharmacist at the district level where only 20% marks were fixed for viva-voce and remaining marks were given on the basis of academic performance of the candidates.
11. In this case, an interlocutory application has been filed on behalf of the Sanjeev Kumar, who is a successful candidate, whose result was published by the Commission and he has sought intervention in this case for opposing the prayer made in the writ application. This Court vide order dated 21.8.2013 has impleaded the intervener Sanjeev Kumar as respondent no.7 to the writ application.
12. In a separate counter affidavit filed by the Commission, it had taken a plea that though the Commission wanted to hold written test followed by interview for selecting the candidates on the post of Pharmacist on the basis of advertisement dated 25.1.2000 but, on account of the direction given by this Court, it had no option but to initiate the process of selection only on the basis of interview, which was held in between 24.10.2011 to 9.12.2011 and a provisional merit list of 468 was published on 9.5.2012 by the impugned communiqué but such provisional merit list as well as recommendation of the Commission has been kept in abeyance in view of the interim order passed by this Court in these cases.
13. The State of Bihar has also filed its counter affidavit in which it has conveniently remained evasive as with regard to the selection procedure by taking a plea that the Commission alone can explain the justification of selection procedure of conducting the selection and declaring 468 applicants to be successful only on the basis of interview.
14. In CWJC No. 14765 of 2012, the same question of the preparation of merit list of 468 candidates only on the basis of interview and without giving any weightage to the academic qualification has been raised. The petitioners in this case have also relied on a government circular dated 3.12.1980 laying down the norm of selection and appointment on a Class-3 post wherein merit list was to be prepared on the basis of academic qualification without subjecting them to holding any interview.
15. In CWJC No. 16354 of 2012, the petitioners, while questioning the result of 468 candidates declared by the Commission, have also laid stress that the Commission ought to have made its recommendation on the basis of academic records of the candidates instead of subjecting them to interview. They have also produced the order of the Director-in-Chief dated 23.2.2012 to show that when selection and appointment on the post of Pharmacist was made in Samastipur district in terms of an advertisement in the year 1990, 30 marks was kept for written test and 20 for the interview whereas 25 marks was prescribed for the technical qualification and 15 marks for technical qualification and 5 marks for the special qualification and 5 for age. The petitioners of this case, therefore, have contended that the same procedure should have been followed for appointment on the post of Pharmacist even by the Commission.
16. In CWJC No. 18601 of 2012, though the line of main attach on the result is with regard to the allotment of marks only on the basis of interview without giving any weightage to the educational qualification and technical qualification of the petitioners or for the experience, an attempt has also been made to assail the result on the ground of violation of the government policy of roaster and reservation. The petitioners of this case have also sought to raise an additional issue as with regard to declaring the result of such successful candidates who qualified in terms of the advertisement, inasmuch as, their result of the Pharmacy Examination and/or their registration as Pharmacist was made after the date of advertisement and to that extent, they have cited the example of Kanhaiya Rai, Jitendra Kumar and Kapildeo Singh. In the likewise manner, the result of a candidate at serial no.76 in general category has been assailed that he was not amongst the list of 1589 candidates, who had appeared in the interview and yet he too was declared successful. In the same manner, the result of the serial no.80 of the general category, has been assailed on the ground that though he had degree of the Ayurveda and, therefore, did not fulfill the requirement of the advertisement dated 25.1.2000 but even he was declared successful by the Commission.
17. In this case, a counter affidavit has been filed on behalf of the respondent no.3 and 4 i.e. the Commission wherein apart from other things, it has been stated that in course of verification and re-verification of the applicants, since more candidates were found to be eligible, the total number of candidates appearing in the interview had exceeded beyond 1589 and as the figure of 1589 should not be treated to be the total number candidates. In this regard, it has been explained in the counter affidavit that even after giving such information under the Right to Information Act, more candidates were interviewed by the Commission. Explaining the case of serial no.80 of the general category about him it was said by the petitioners that he did not hold the requisite qualification, it has been stated that his certificate of registration issued by the Bihar State Pharmacy Council would go to show that his registration was given with effect from 16.8.1999 and thus, it was not correct to say that he was not qualified on 25.1.2000.
18. In this case, an interlocutory application being I.A. No. 2328 of 20013 has been filed on behalf of Manoj Kumar and Nawal Kishore Sharma who were declared to be successful in the result of the Commission. They have produced their interview call letters to justify their consideration of case as also their being fully eligible in terms of the advertisement. Similarly, one Abinash Kumar, another successful candidate in the result of the Commission, has also sought intervention. In the likewise manner, one Sujeet Kumar Verma has also filed interlocutory application being I.A. No. 5290 of 2013 seeking intervention. He too has enclosed interview call letter and relied on an order of this Court dated 7.5.2013 that in these writ applications, the persons like him had already been made party to oppose the writ application.
19. It is also important to note here that these intervener respondents, whose intervention applications were allowed, have also filed their separate counter affidavit and has justified not only the selection made by the Commission on the basis of interview but have also explained that the allegation against one Abinash Kumar, a successful candidate, that he had passed diploma in Pharmacy examination in the month of March, 2000 was absolutely incorrect and in fact, he had passed such diploma in Pharmacy examination on 10.11.1997. Similar explanation has been given that Purnendu Narain Mishra also had passed the Diploma Examination in Pharmacy in the year 1998 as would be evident from the mark-sheet and they have also submitted their application within prescribed period of time i.e. 25.2.2000.
20. In CWJC No. 22288 of 2012, the petitioners have again assailed the selection and publication of the result by the Commission only on the basis of interview.
21. In CWJC No. 15707 of 2013, the result declared by the Commission again has been assailed by the petitioners in this case only on the ground that interview alone could not have been made the basis for evaluation of merit and that weightage should have been given to the academic qualification.
22. From the aforesaid pleadings on record in all these cases, it would appear that the process of selection has been assailed in all these writ applications primarily on the ground that the result declared by the Commission of 468 candidates for the post of Pharmacist is bad because it was based on the marks of the interview alone.
23. Mr. Amit Prakash, learned counsel for the petitioners followed by other counsels appearing on behalf of the other petitioners, had also tried to make out a case that the Interview Board did not judge the merit of the candidates by evaluating the personality of the candidate on different heads. He was of the view that fairness required the interview board to evaluate the candidates on different parameters, inasmuch as, oral interview alone had become basis for selection. In this regard, reliance was placed by him on the judgment of the Apex Court in the case of Dr. J.P. Kulshrestha and Ors. Vs. Chancellor, Allahabad University and Ors. reported in AIR 1980 SC 2141 and in the case of D.V. Bakshi and Ors. Vs. Union of India and Ors. reported in 1993(3)SCC 663. He had further placed reliance on a judgment of the Apex Court in the case of Praveen Singh Vs. State of Punjab and Ors. reported in AIR 2001 SC 152 and in the case of Inder Parkash Gupta Vs. State of Jammu and Kashmir and Ors. reported in AIR 2004 SC 2523 as also in the case of P. Mohanan Pillai Vs. State of Kerala and Ors. reported in 2007(9) SCC 497 to contend that selection, only on the basis of interview, was inherently defective.
24. On the other hand, Mr. Lalit Kishore, learned senior counsel for the respondents, had placed reliance on the judgment of the Apex Court in the case of Lila Dhar Vs. State of Rajasthan and Ors. reported in AIR 1981 SC 1777 and in the case of Minor A. Peeriakaruppan Vs. State of Tamil Nadu and Ors. reported in 1971(1) SCC 38 and in the case of Dr. Keshav Ram Pal Vs. U.P. Higher Education Services Commission, Allahabad and Ors. reported in 1986(1) SCC 671 to contend that in absence of Rules, there was no requirement that the marking should be for the different parameters or different heads and it could be very well under the single head.
25. Mr. Arup Kumar Chongdar appearing for the intervener respondent representing the interest of the selected candidates, whose result has been impugned in these writ applications, had submitted that no error was committed if no weightage was given for the academic qualification. In this regard, he has explained that the qualification of Matriculation and Diploma in Pharmacy being from the various institutions, no fixed criteria could have been developed, which could have satisfied one and all. He had explained that the minimum standard in CBSE/ICSE and Matriculation Board being not one and the same, any criteria for giving the marks on the basis of total marks secured by the candidate in Matriculation or equivalent examination could have led to disastrous result.
26. Similarly, according to him, the qualification of Diploma in Pharmacy, being not confined to any one institution, the number of institutions, both government as also minority institutions as well as private institutions, recognized by the State Government, no uniform criteria could be developed for awarding weightage for the marks secured by the candidates even in Diploma in Pharmacy examination. He has also submitted that the petitioners, in fact, will be bound by the principle of estoppel, inasmuch as, they, having taken chance by appearing in interview, have become successful and subsequently challenged the mode of interview. To that extent, he has placed reliance on the judgment of the Apex Court in the case of Madan Lal and Ors. Vs. State of Jammu and Kashmir and Ors. reported in 1995(3)SCC 486 and in the case of Dhananjay Malik and Ors. Vs. State of Uttaranchal and Ors. reported in 2008(3)PLJR 271 (SC) and in the case of K.A. Nagamani Vs. Indian Airlines and Ors. reported in 2009(5)SCC 515 as also in the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Ors. reported in 2011(1)SCC 150.
27. He has further submitted that in absence of any allegation of malafide against the members of the Board holding interview, the petitioners cannot be allowed to indulge into a mere guess work for declaration of the marks in the interview to be arbitrary. In this regard, he has referred to the judgment of the Apex Court in the case of B.S.N. Joshi and Sons Ltd. Vs. Nair Coal Services Ltd. and Ors. reported in 2006 (11)SCC 548. According to him, this Court, in fact, in absence of any allegation of malafide, is not even required to go into the microscopic details and for this purpose, he has drawn support from the judgment of the Apex Court in the case of Sadananda Halo and Ors. Vs. Momtaj Ali Sheikh and Ors. reported in 2008(4)SCC 619 and in the case of Union of India Vs. Pushpa Rani and Ors. reported in 2008(9)SCC 242.
28. Mr. Ashok Kumar Choudhary, learned counsel appearing for some of the interveners, the successful candidates, has submitted that in absence of denial by the petitioners to the averments made in paragraph no. 14, 15 and 16 of the counter affidavit of the Commission even the individual allegation of any anomaly or malpractice, in holding of the interview, must be held to be a mere ipsi dixit of the petitioners.
29. This Court will have no difficulty in holding that there would be no question of the petitioners being bound by the principle of estoppel, inasmuch as, what has been said by the Apex Court in the case of Madan Lal (supra) or the subsequent judgment based on them is to the effect that a person participating in the selection process and appearing in the interview cannot question the constitution of the Selection Committee or the norms of selection already known to the candidates prior to appearing in interview. That does not and cannot mean that a person concerned appearing in the interview of selection test will have no right to question the anomalies practiced in course of such interview. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of Prem Singh and Ors. Vs. Haryana State Electricity Board and Ors. reported in 1995(4)SCC 319 wherein it was held as follows:-
œIn our opinion, there is no substance in the objection raised with respect to locus standi of the original writ petitioners. The candidates could not have anticipated when they appeared for the interview that the Selection Committee would recommend candidates and the Board would make appointments far in excess of the advertised posts. The petitioner who was not eligible had a just grievance that due to appointments of candidates in excess of the posts advertised he was deprived of the right of consideration for appointment against the posts which would have become vacant after he acquired eligibility.?
30. As a matter of fact, in the case of Madan Lal (supra), the petitioners having appeared at the oral interview conducted by the members of the concerned Commission were held to be bound by the principle of estoppel as with regard to challenging the constitution of the Selection Committee or the process of interview. Similarly, even in the case of Dhananjay Mallik (supra), which again has followed the ratio laid down by the Apex Court in the case of Madan Lal (supra), the issue was with regard to the selection process being not in accordance with rules and in that context it was held that if the candidates appearing in the interview had found that the advertisement and selection process was not in accordance with Rules, they could have challenged the advertisement and selection process without participating in the selection process. For the same reason, the judgment in the case of K.A. Nagamani (supra) is also clearly distinguishable, inasmuch as, in that case also, the judgment of Madan Lal (supra) was followed by the Apex Court with regard to estoppel against the candidates who had participated in the selection process of promotion without any demur or protest. The last judgment relied by the learned counsel for the respondents in the case of Vijendra Kumar Veram (supra) will also be of no help and assistance in the facts of the present case. As a matter of fact, the Apex Court in the case of Vijendra Kumar Verma (supra) having noticed that the candidates were already made aware that basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Officer Operation would be essential and the candidates, having knowledge of the aforesaid requirement of selection process and being fully aware that they must possess the basic knowledge of computer operation, having appeared in the interview and failed were held to be bound by principle of estoppel.
31. As noted above, the sheet-anchor for all these judgments referred to and relied by the learned counsel for the respondents is the judgment of Apex Court in the case of Madan Lal (supra) but, the said judgment of the Apex Court has been subsequently distinguished and explained by the Apex Court itself and to that extent, the reliance placed by Mr. Amit Prakash on the judgment of the Apex Court in the case of Rajkumar and Ors. Vs. Shakti Raj and Ors. reported in AIR 1997 SC 2110 is apt and appropriate, wherein, it was held as follows:-
œIt is true, as contended by Shri Madhava Reddy, that this Court in Madan lal v. State of J and K and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case.?
32. In fact, the same view has also been taken by this Court while following the aforesaid law laid down in the case of Dilip Kumar Jha and Anr. Vs. The State of Bihar and Ors. reported in 1999(1)PLJR 664.
33. Thus, having regard to the fact that the writ application cannot be dismissed on account of estoppel and only because the petitioner had appeared in the interview, the question still would remain as to whether the selection based on interview alone and evaluation made by the Interview Board by allocating marks of single head is bad?
34. This Court would find it difficult to sustain such challenge on the part of the petitioners for a simple reason that the Commission actually wanted to hold written test and in fact had also issued the communiqué to this effect on 6.5.2009 but, that was quashed by this Court in CWJC No. 3107 of 2009 with a direction that in terms of the advertisement, selection has to be conducted by the Commission only on the basis of interview. This order of the learned single Judge dated 23.12.2009 was affirmed by the Division Bench of this Court and the Apex Court also had put its seal of approval on the judgment of this Court by dismissing the Special Leave Petition filed by the Commission. In such a situation, the Commission had no option but to go strictly by the direction of this Court for conducting the selection on the post of Pharmacist only by mode of interview.
35. There is yet another aspect which would require this Court to approve the action of the Commission of conducting such selection on the basis of interview alone. It has to be noted that in the year 2000, there was no statutory rule for filling up the post of Pharmacist. By now, it is well settled that after the commencement of process of selection, if any rule is framed, that cannot be made applicable for the earlier vacancy. Thus, even if there was a statutory rule by way of Recruitment Rules, 2004, the same could not have been made applicable to the advertisement dated 25.1.2000. Law in this application has been well settled and reference in this connection may be usefully made to the judgment of the Apex Court in the case of P. Mahendran and Ors. Vs. State of Karnataka and Ors. reported in AIR 1990 S.C. 405.
36. The other issue with regard to mode of interview though seriously pressed by the learned counsel for the petitioners is not capable of being decided for want of adequate pleadings and in none of the writ application there is any specific averment as with regard to any anomaly in course of interview conducted by the members of the Board. On the contrary, in CWJC No. 12382 of 2012, it has been stated that the duration of interview varied from five minutes to thirty minutes. To that extent, it would be relevant to quote paragraph no.12 of the CWJC No. 12382 of 2012, which reads as follows:-
œ12. That the list published only on the basis of interview is an arbitrary exercise of the power to the prejudice of the petitioners who have been fighting for their just right for the past fifteen years. The select list contains names of only those qualified pharmacists who have applied pursuant to the advertisement namely 1 of 1999 hence at this distance of time to judge their merit only on the basis of interview is nothing but arbitrary exercise of power which gives latitude to the respondent commission to choose candidates on the basis of their own sweet will. Even the interview taken by the commission as conducted in a very subjective manner whereby questions relating to pharmacy/academic questions were not asked to some of the candidates who figure in the select list. Even duration of interview varied from 05 minutes to 30 minutes.?
37. This court, however, in order to ascertain the process of interview, had directed the Commission to file its affidavit as also produce the original records. From their perusal, it becomes clear that the Commission had availed the services of the experts of the subject and had constituted two different boards of interview. As noted above, the interview had continued for a period nearly one and half months in between 24.10.2011 to 9.12.2011. The Commission has given the statistics that 1567 candidates were interviewed in this duration and there were two Boards, which had conducted such interview. From the records produced by the Commission, it is found that on each day of the interview, two Boards, each having three members, had conducted the interview in the following manner:-
| Date | Board-I | Board-II |
| 24.10.2011 | 19 Candidates | 20 Candidates |
| 25.10.2011 | 20 Candidates | 23 Candidates |
| 4.11.2011 | 22 Candidates | 21 Candidates |
| 5.11.2011 | 22 Candidates | 23 Candidates |
| 8.11.2011 | 22 Candidates | 23 Candidates |
| 9.11.2011 | 23 Candidates | 24 Candidates |
| 10.11.2011 | 18 Candidates | 18 Candidates |
| 11.11.2011 | 18 Candidates | 19 Candidates |
| 14.11.2011 | 16 Candidates | 17 Candidates |
| 15.11.2011 | 19 Candidates | 19 Candidates |
| 16.11.2011 | 16 Candidates | 17 Candidates |
| 17.11.2011 | 24 Candidates | 24 Candidates |
| 18.11.2011 | 21 Candidates | 20 Candidates |
| 21.11.2011 | 18 Candidates | 17 Candidates |
| 22.11.2011 | 24 Candidates | 23 Candidates |
| 23.11.2011 | 21 Candidates | 20 Candidates |
| 24.11.2011 | 18 Candidates | 19 Candidates |
| 25.11.2011 | 18 Candidates | 20 Candidates |
| 28.11.2011 | 20 Candidates | 20 Candidates |
| 29.11.2011 | 22 Candidates | 22 Candidates |
| 30.11.2011 | 19 Candidates | 19 Candidates |
| 1.12.2011 | 20 Candidates | 19 Candidates |
| 2.12.2011 | 18 Candidates | 18 Candidates |
| 5.12.2011 | 18 Candidates | 18 Candidates |
| 7.12.2011 | 22 Candidates | 22 Candidates |
| 8.12.2011 | 17 Candidates | 17 Candidates |
| 9.12.2011 | 23 Candidates | 24 Candidates |
39. This Court, as noted above, has examined from the interview-sheet of both the Boards, which had before it, the complete summary of the candidates prepared in the signature of the Section Officer, Deputy Secretary and Joint Secretary of the Commission and on which the marking was made jointly by three members. It is the combined assessment of the three expert members of each of the two Boards as well as the Chairman, being one the member of the Commission that such mark has been given to each of the candidate.
40. As noted above, there is no statutory rule laying down the award of marks on different heads. In this regard, this Court would find that when the interview call letter was issued, the candidates were already informed of the nature of such interview. That were printed in the back side of the interview call letter and to make it more explicit, the same is reproduced herein below:-
œ(LANGUAGE)?
(Underlining for emphasis)
41. Thus, test was merely to assess the overall personality of the candidates who were of course appearing for the post of Pharmacist. They all were having same qualification, of at least Diploma in Pharmacy and, therefore, the Interview Board, consisting of the experts of the subject of Pharmacy, were supposed to judge their personality in relation to the requirement of the job of Pharmacy.
42. The list of seven experts was also produced by Mr. Lalit Kishore, Learned counsel, under the sealed cover and this court has also perused the name of all the experts who are member/associate member in the different institutes of Pharmacy and/or medical colleges of this State whose names and identity is not being revealed in this judgment for the confidentiality.
43. The challenge of the petitioners to the norms of selection by interview in the facts of the present case has to be rejected on two grounds. Firstly, it was the direction of this Court to hold the selection only on the basis of interview which was affirmed up to the Apex Court and, therefore, the respondents had no option but to conduct selection on the basis of interview. Secondly, the selection by the process of interview in itself cannot be held to be bad. To that extent, the judgment relied by the learned counsel for the petitioners in the case of J.P. Kulshrestha (supra) far from supporting would actually goes against them as would be apparent from the following passage:-
œ10. ------- Did the Selection Committee act illegally in resorting to the interview process to pick out the best? We think not. Any administrative or quasi-judicial body clothed with powers and left unfettered by procedures is free to devise its own pragmatic, flexible and functionally viable processes of transacting business subject, of course, to the basics of natural justice, fair play in action, reasonableness in collecting decisional materials, avoidance of arbitrariness and extraneous considerations and otherwise keeping within the leading strings of the law. We find no flaw in the methodology of žinterviewsŸ.-----?
44. As noted above, there is no allegation at least from any of the petitioners, who also had appeared in the interview, that the Interview Board had not given them sufficient time or that the questions, which were put to them, were not meant to assess their personality and/or knowledge of the subject of Pharmacy. Thus, on the basis of materials on record, this Court will have no difficulty in holding that no error was committed by the Interview Board in either conducting the interview or giving marking in a consolidated manner. To that extent, the law laid down by the Apex Court in the case of Lila Dhar (supra) is a complete answer wherein it was held as follows:-
œ8. The second ground of attack must fail for the same reason as the first ground of attack. The Rules themselves do not provide for the allocation of marks under different heads at the interview-test. The criteria for the interview-test has been laid down by the Rules. It is for the interviewing body to take general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under different heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidateŸs personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannotbe any magic formula in these matters and courts cannot sit in judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motive.?
45. The reliance placed by the learned AAG on the jdugment of Dr. Keshav Ram Pal (supra) is also apt and appropriate wherein the Apex Court having considered and relied on the aforesaid decision in the case of Lila Dhar (supra) had held as follows:-
œWe do not think that the Interviewing Board, in the present case, was under any obligation to sub-divide the marks under various sub-heads. The writ petition is, therefore, dismissed, but in the circumstances, without costs.?
46. The reliance placed by the learned counsel for the petitoiners on the judgment of the Apex Court in the case of D.V. Bakshi (supra) as with regard to the mode of interview again instead of helping the case of the petitioners would go against them, inasmuch as, in that case the Apex Court had held as follows:-
œ6. ------ In Lila Dhar v. State of Rajasthan this Court while highlighting the need for an interview test in certain selections clarified that the test which may be valid for admission to medical colleges may not hold good where it concerns entry into public services. The test evolved in the case of Ajay Hasia and Ashok Kumar Yadav cannot, therefore, apply with equal force in the matter of grant of licence as a Customs House Agent. This has been further clarified in a recent decision in Indian Airlines Corpn. v. Capt. K.C. Shukla. In that case this Court after referring to the decisions in Ajay Hasia, Ashok Kumar Yadav and Lila Dhar observed that the distinction appears to have been drawn in interviews held for competitive examination or admission to educational institutions and selection for higher posts. In the case of educational institutions the distinction has relevance for the reason that the candidates are young and their personality has yet to develop and, therefore, greater weight has to be given to their performance at the written examination rather than at the oral examination. It is, therefore, clear that no hard and fast rule can be laid down in this behalf as much would depend on the nature of performance expected for the responsibility to be handled by a candidate after his selection and entry into the establishment. The method of evaluation would, therefore, vary and cannot be a matter of any strait-jacket formula. The weight to be given to the performance at the interview would depend on the nature of duties, responsibilities and functions to be handed after selection.-----?
47. It is true that in the case of Praveen Singh (supra), it has been held that interview should not be only method of assessment of the merit of the candidates but the in the facts of the present case where the respondents were bound by the judgment of this Court to hold the selection only on the basis of interview, the applicability of the ratio of the aforementioned case will have to be essentially ruled out specially when the direction of this Court to conduct the selection only on the basis of interview was also affirmed by the Apex Court as has been already explained earlier.
48. The reliance placed by the learned counsel for the petitioners on the judgment of the Apex Court in the case of Inder Prakash Gupta (supra) can have no application to the facts of the present case because the Apex Court in the aforesaid case had noted that fixation of marks in interview was contrary to the regulation for filling up the post of teaching wing of Medical Education Department of the State.
49. The last judgment relied by the learned counsel for the petitioners of the Apex Court in the case P. Mohanan Pillai (supra) again is clearly distinguishable on facts because in that case, the appointment on the post of watchman/messenger/attender in Oil Palm India Limited, a Government Company was based on both written test and interview and the issue actually was with regard to calling of the number of candidates for interview after the result of written test in proportion to the vacancies. Thus, whatever was said by the Apex Court with regard to the possible abuse of inflating marks in interview has to be understood in the context of the norms of selection laid down by the Corporation requiring calling the number of candidates three times to the vacancy.
50. In fact the power of judicial review into such opinion of experts is very well circumscribed and in fact the Court cannot go into the microscopic discussion as was held by the Apex Court in the case of Sadananda Halo (supra), which reads as follows:-
œ58. It is settled law that in such writ petitions a roving inquiry on the factual aspect is not permissible. The High Court not only engaged itself into a non-permitted fact-finding exercise but also went on to rely on the findings of the amicus curiae, or as the case may be, the scrutiny team, which in our opinion was inappropriate. While testing the fairness of the selection process wherein thousands of candidates were involved, the High Court should have been slow in relying upon such microscopic findings. It was not for the High Court to place itself into a position of a fact-finding commission, that too, more particularly at the instance of those petitioners who were unsuccessful candidates. The High Court should, therefore, have restricted itself to the pleadings in the writ petition and the say of the respondents. Unfortunately, the High Court took it upon itself the task of substituting itself for the Selection Committee and also in the process assumed the role of an appellate tribunal which was, in our opinion, not proper. Thus, the High Court converted this writ petition into a public interest litigation without any justification.
59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India v. S. Vinodh Kumar [(2007)8 SCC 100] where one of us (Sinha, J.) was a party. This was a case where different cut-off marks were fixed for the unreserved candidates and the Scheduled Caste and Scheduled Tribe candidates. This Court in para 10 of the judgment endorsed the action and recorded a finding that there was a power in the employer to fix the cut-off marks which power was neither denied nor disputed and further that the cut-off marks were fixed on a rational basis and, therefore, no exception could be taken. The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285] where it has been held specifically that when a candidate appears in the examiantin without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise. The Court further made observations in para 34 of the judgment [Ed.: Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 at p. 149] to the effect:(S. Vinodh Kumar case [Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100], SCC p. 107, para 19)
œ19. ... Ÿ34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not œpalatable? to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.Ÿ?
In para 20 this Court further observed that there are certain exceptions to the aforementioned rule. However, the Court did not go into those exceptions since the same were not material.?
51. To that extent, learned counsel for the respondents are also justified in placing reliance on the judgment of the Apex Court in the case of Pushpa Rani (supra) wherein it was held as follows:-
œ37. ------ The power of judicial review can be exercise in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.?
52. This Court in fact in absence of any allegation of malafide will have no difficulty in holding that such allegation of the petitioners challenging the process of selection is even otherwise is wholly misconceived as was held in the case of B.S.N. Joshi (supra) paragraph no. 37 whereof reads as follows:-
œ37. Before we embark upon the respective contentions made before us on the said issue, we may notice that although the point was urged during hearing before the High Court, the first respondent in its writ application did not raise any plea in that behalf. The High Court was not correct in allowing the first respondent to raise the said contention. (See Chimajirao Kanhojirao Shirke v. Oriental Fire and General Insurance Co. Ltd. [(2000) 6 SCC 622], SCC at p. 625.)?
53. As noted above, the person against whom allegations were made that they were not qualified and/or ineligible and yet were declared successful, the same has been categorically denied by production of documents as referred above. Thus, the plea of the petitioners to that extent also must fail.
54. The reliance placed by the petitioners on the circular of the Personnel and Administrative Reforms in letter no. 16440 dated 3.12.1980 are also wholly misplaced. That circular is with regard to the filling up of the Class-3 post at the district level and in any event, when the circular clearly prohibits holding of any selection on the basis of interview and the present advertisement dated 25.1.2000 clearly provides such selection to be based on the basis of interview, its applicability in the case of the appointment of Pharmacist is automatically ruled out. As a matter of fact, the circular dated 3.12.1980 is too general in its terms and in fact would basically cover such Class-3 post of Muffasil (Establishment) for which the Collector of the district has been made the competent nodal authority. Be that as it may, since the post of Pharmacist is not within the domain of the aforesaid circular dated 3.12.1980, this Court will have no difficulty in holding that such circular dated 3.12.1980 can also not in any way be relevant for the selection on the post of Pharmacist.
55. For the similar reasons, the illustration of the earlier time of the year 1991, when such post of Pharmacist was filled at the district level or for that purpose, the example of Samastipur district of making selection on the post of Pharmacist of holding written test followed by interview as also giving weightage to the academic qualification, will be of no use and assistance in the fact of the present case where under the judicial order of this Court, the Commission was directed to hold selection and make recommendation for filling up the post of Pharmacist advertised on 25.1.2000 only on the basis of interview.
56. In the light of the aforesaid discussions and on the basis of the materials on record, this Court is of the view that no error was committed by the Commission in conducting the selection on the post of Pharmacist only on the basis of interview. This Court is also of the firm opinion that the norms adopted by the members of the Board of Interview in giving consolidated lump sum marks to each of the candidates appearing in the interview in the facts and circumstances of this case cannot be held to be bad. Thus, the challenge of the petitioners to the entire selection process relating to interview must and is hereby rejected.
57. Before parting with, this Court however must make it clear that there are certain special features of the present case which has made this Court to approve the norms of selection adopted by the Commission for filling up the post of Pharmacist on the basis of viva voce test (interview) alone. In doing so, this Court has been primarily governed by the earlier inter-parte judgment upheld up to Apex Court that such selection on the post of Pharmacist in respect of advertisement dated 25.1.2000 has to be conducted only on the basis of interview. This Court is also mindful while approving the action of the Commission of conducting interview and allocating marks in one lump sum on account of absence of any rules to the contrary. Added to all these in view of the period of fifteen years consumed in the selection on the post of Pharmacist as with regard to candidates who had filed their application in terms of the advertisement dated 25.1.2000 this court is even otherwise reluctant to interfere with the mode of interview specially when firm time limit has been fixed at least on three occasions by this Court for completing the process of selection and making appointment.
58. This judgment, therefore, which is being rendered in the peculiar facts and circumstances of the case should not be taken to be an approval of the action of the Commission of conducting selection only on the basis of interview in future in respect of the post advertised by the Commission. The Commission in such cases where for filling up the post by way of direct recruitment, there is no statutory rule laying down norms of selection, must usually resort to holding of the written test because the job of the Commission is only to make recommendation for Class-3 and Class-4 post. Any deviation by the Commission for holding selection only on the basis of interview has to be made if the rules of recruitment so prescribed. In all other cases, the Commission should hold its selection for making recommendation to the State Government for appointment on Class-3 post by conducting a written test followed by viva voce. If the selection is to be made only on the basis of viva voce test, the marking should be invariably done by all the members separately on the fixed parameters under different heads and its average should be the actual marks obtained by the candidate in the viva voce test. To that extent, the authorities of the Commission must bear in mind what was said by the Apex Court in the case of D.V. Bakshi (supra), relevant portion whereof reads as follows:-
œ7. ----- The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the overall qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of the candidate. As observed in Lila Dhar case a written examination assesses the manŸs intellect and the interview tests the man himself and žthe twain shall meetŸfor a proper selection. If an oral test is, therefore, a žmustŸas in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the marks assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate.-------?
59. This Court would not like to add anything more but it would expect that in future the Commission in exercise of its power of making selection and sending its recommendation to the State Government for appointment on Clas-3 post will be mindful of the aforesaid observation of the Apex Court in the case of D.V. Bakshi (supra) which in fact only seeks to achieve the primal object of the Rights to Equality in the matter of public employment as guaranteed to every citizen under Article 14 and 16 of the Constitution of India.
60. Subject to the aforementioned observations and directions as also those contained in the separate judgment delivered today in CWJC No. 706 of 2012 (Jawahar Lal Singh and Anr. Vs. The State of Bihar and Ors.) and its analogous cases as well as CWJC No. 10337 of 2012 (Ashok Kumar and Ors. Vs. The State of Bihar and Ors.), all these writ applications are dismissed. There would be however, no order as to costs.
61. Let the entire original records produced by the Commission kept under sealed cover be handed over to the learned counsel for the Commission. Similarly, the government file produced by the learned counsel for the State be also returned back to him.