Judgement

S.C. AGRAWAL, J.:- SLP (Civil) No. 8444 of 1993.

I.A. No. 1 of 1993 allowed. Special leave granted.

SLP (Civil) No. 7415 of 1993

2. Special leave granted.

3. Both these appeals arising out of the judgment of the High Court of Patna dated March 12, 1993 in C.W.J.C. No. 7475 of 1992, raise the question whether the law laid down by this Court regarding fixation of marks for interview in a selection would apply to a case where there is no written test and the selection is made on the basis of academic performance and interview.

4. The selection in the present case was for appointment on the post of Unani Medical Officer.

5. The post of Unani Medical Officer was declared a Gazetted (Class II) post by the resolution of the Government dated April 1, 1979. On November 25, 1989, the Government of Bihar sent a requisition to the Bihar Public Service Commission (hereinafter referred to as the Commission) regarding appointment on 22 vacant posts of Unani Medical Officers. In the letter of requisition was stated that the procedure of appointment etc. on these posts will be the same which applies to the incumbents of the State Service cadre. The maximum age of the candidates on January 1, 1989 was prescribed as 35 years. The Secretary of the Commission by his letter dated April 18, 1990 pointed out that appointment on the post of initial cadre in the State Medical Service was being done on the basis of competitive examination conducted by the Commission and that competitive examination for appointment to the post of Unani Medical Officer could only he held after the relevant rules are made. Thereupon the State Government by letter dated September 20, 1900 informed the Commission that rules relating to the post of Unani Medical Officer have neither been modified nor any rule for competitive examination has been framed, and, therefore, as in earlier cases, the candidates for this post may be selected on the basis of interview. In the said letter it was stated that for the said post of Unani Medical Officer degree of B.U.M.S. or G.U.M.S. from any recognised university is essential and in addition resident/internship training working of 6 months from any recognised institution is necessary. By letter dated January 22, 1991 the State Government intimated to the Commission that selection be made for 81 posts of Unani Medical Officers and the Commission was requested to send its recommendation for appointment on 81 posts. Thereafter the Commission issued advertisement on September 15, 1991 inviting applications for 81 posts of Unani Medical Officers. The applicants appeared for interview before two Boards presided by two members of the Commission. The selection was made on the basis of marks given for viva voce and for academic performance. 100 marks were allotted for viva voce test and 100 marks for academic performance. By letter dated June 14, 1992. the Commission recommended the names of 55 candidates for appointment on the post of Unani Medical Officer. The said recommendation of the Commission was challenged by Dr. Sadra Alam and Dr. Syed Wasim Asraf (respondents Nos. 6 and 7 respectively) in the High Court in a writ petition filed under Article 226 of the Constitution. During the pendency of the said writ petition the 55 selected candidates were appointed on the post of Unani Medical Officer by order of the State Government dated March 2, 1993.

6. The High Court, by its judgment dated March 12. 1993, has allowed the said Writ Petition and has quashed the recommendation made by the Commission as contained in letter dated June 14, 1992 and the State has been commanded not to issue any notification of appointment pursuant to the said recommendation and if any appointment had been made on the post in the meanwhile the same shall be deemed to be null and void. The High Court has held that it had not been shown that any policy decision had been taken by the Commission on the question of allocation of 100 marks for viva voce and that the two mem