ORDER

1. This petition is directed against the order dated 15-7-2008 passed by the Division Bench of the Patna High Court in CWJC No. 8054 of 2008 whereby the petitioner's challenge to the earmarking of 200 marks for viva b voce test as against 850 marks for written test for recruitment to the Bihar Civil Service (Judicial Branch) was negatived.

2. The petitioner was one of the candidates who had applied for selection pursuant to an advertisement dated 18-11-2005 issued by the Bihar Public Service Commission (for short "the Commission") for appointment of Civil Judges (Junior Division). After being declared successful in the written examination, the petitioner was interviewed on 7-8-2007. However, his name did not figure in the merit list prepared by the Commission.

3. After nine months, the petitioner filed a writ petition questioning the constitutionality of Appendix C of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 (for short "the Rules") on the ground that the marks prescribed for viva voce test were excessive and contrary to the law d laid down by this Court in Ashok Kumar Yadav v. State of Haryana, Mohinder Sain Garg v. State of Punjab, Ashok v. State of Karnataka, Raj Kumar v. Shakti Raj and Vijay Syai v. State of Punjab.

4. In the counter-affidavit filed on behalf of the State Government, an objection was raised to the locus standi of the petitioner by asserting that after having participated in the process of selection, he is estopped from e questioning the marks prescribed for viva voce test. It was also pleaded that the Commission had recommended the names of 318 candidates to the Department of Personnel and Administrative Reforms and they have already been appointed.

5. By the impugned judgment, the Division Bench of the High Court non-suited the petitioner on the ground that he moved the Court after taking a chance for being selected on the basis of the provision which he was seeking to challenge. The Division Bench referred to the judgment of this Court in Madan Lai v. State of J &K6 and held:

"In the light of the aforesaid legal position, it has to be held and we do hold that the petitioner by his conduct has disentitled himself to any 9 relief in the high prerogative jurisdiction of this Court. He was well aware when he applied to appear in the 26th Judicial Competitive Examination, 2005 that out of combined written test and viva voce test of total marks of 1050, 200 marks have been provided for viva voce test. The petitioner had no grievance about the criteria when he applied nor he had any grievance when he appeared in the written test and the viva voce test. Had he been successful, he would have no grievance at all about the provision of maximum 200 marks for interview. Had he secured higher marks in the viva voce test, he would have been happy with the provision made in the Rules. It is only after the entire selection process has been over and he remained unsuccessful that he thought of raising grievance about unreasonableness of maximum 200 marks fixed for viva voce test. He approached the Court much after the entire selection process was over. BPSC had recommended the names of 318 candidates for selection and the Personnel and Administrative Reforms Department, Government of Bihar appointed the selected candidates. The entire selection process has been over. In our view, the same cannot be undone or upturned at the instance of the petitioner who approached the Court only after he remained unsuccessful in the examination on the plea that the provision of 200 marks for viva voce test out of total marks 1050 was unreasonable. If out of 318 candidates who were recommended by BPSC to the State Government for appointment, any candidate did not join, that vacancy has to be carried forward to the next year. There is no challenge to the circular issued by the Personnel and Administrative Reforms Department way back in the year 1977 that any vacancy having remained unfilled due to non-joining of t