1. We heard the Senior Counsel for the petitioner and Standing Counsel VIII for the State of Bihar.

2. The petitioner has prayed for the following reliefs:

"(i) For issuance of a writ of certiorari quashing the result of 26th Bihar Judicial Services Competitive Examination, 2005 contained in Annexure-2 declaring the name of 264 general category candidates for the purpose of appointment on the post of Munsif in the subordinate judiciary and direct the respondents to hold fresh selection after reducing the proper percentage of marks in the viva-voce test.

(ii) For issuance of an appropriate writ declaring the provision for 200 marks (19.05%) for viva-voce out of total marks 1050 in the 26th Judicial Service Competitive Examination in 2005 contained in Appendix-6 to Bihar Civil Services (Judicial Branch) Recruitment Rules, 1955 ultra vires the Constitution of India being destructive of Article 14 of the same.

(iii) In the alternative of not allowing relief No. (i) for issuance of writ of mandamus/direction commanding/directing the respondents to appoint the petitioner on one of the vacant posts of the Munsif (junior grade Civil Judge)

(iv) For issuance of an ad interim order during the pendency of this writ petition restraining the respondents from filing up vacant seats of Munsif remaining vacant on account of non-joining by successful candidate or leaving the jobs by some of the same."

3. Bihar Public Service Commission (for short, BPSC) issued an advertisement in the year 2005 bearing Advertisement No. 43/2005 inviting applications from eligible candidates for appointment in Bihar Judicial Services. For the sake of brevity and convenience we shall refer the process, 26th Judicial Competitive Examination, 2005.

The petitioner applied and appeared in the written examination held by the BPSC for that purpose. The result of successful candidates in the written examination is said to have been published on 30.6.2007. The petitioner was declared successful candidate having secured more than 40% marks in each paper and more than minimum prescribed aggregate marks of 492 as was fixed by the BPSC. Vide memo no. 945 dated 20.7.2007, the petitioner was informed to appear in the interview (viva-voce test) on 7th August, 2007. He did appear for viva-voce test on that date. The list of selected candidates was published by the BPSC on 24th August, 2007. The petitioner was not amongst successful candidates. After about nine months of the declaration of result, the present writ petition has been filed in the month of May, 2008 and as noticed adove, the petitioner has sought to challenge the constitutionality of Appendix-6 of Bihar Civil Services (Judicial Branch) Recruitment Rules, 1955 which, according to the petitioner, provides for excessive marks for viva-voce test.

4. On behalf of the State Government, a counter affidavit has been filed. Inter alia, it is stated therein that after completion of examination and selection process of 26th Judicial Competitive Examination, 2005, the BPSC recommended the names of 318 successful candidates to the Personnel and Administrative Reforms Department, Government of Bihar, Patna and the candidates recommended by the BPSC already been appointed to the post of Civil Judge, Junior Division. It is stated that as per Circular No. 11018 dated 17th June, 1977 issued by Personnel & Administrative Reforms Department, the unfilled vacancies due to non-joining on the post by the candidates for any other reason are required to be carried forward to the next year.

5. At the outset, Mr. Mahesh Prasad, the standing counsel submitted that the petitioner is estopped from challenging the selection criterion including the constitutional validity of Appendix-6 of Bihar Civil Services (Judicial Branch) Recruitment Rules, 1955 now since he participated in the selection process without demur and having remained unsuccessful, the challenge is sought to be made that the maximum marks of 200 for viva-voce test was exces