JUDGMENT

1. The matter has been taken up for hearing online because of COVID-19 pandemic restrictions.

2. The petitioner is a citizen of India, who, after passing her 12th examination held by the Central Board of Secondary Education, pursued her MBBS course in Bangladesh Medical College under Dhaka University in 2013, as pleaded in the writ application. The name of the said medical institution figures in the Second Schedule of the Indian Medical Council Act, 1956 (hereinafter referred to as 'the Act'), which contains list of recognized medication qualifications granted by the medical institutions outside India. It is accordingly, the petitioner's case that her MBBS qualification is a recognized qualification for the purposes of the said Act.

3. It is the petitioner's further case that as stipulated in Section 13(4-A) of the Act, she had appeared in the screening test conducted by the National Board of Examination, prescribed for enrollment on the medical register maintained by the State Medical Council and had cleared the same in 2013. She possesses provisional registration certificate issued by the Medical Council of India and certificate of registration issued by the Bihar Council of Medical Registration.

4. She has filed this application challenging letter No. 2010(2) dated 02.12.2019, issued under the signature of Joint Secretary, Health Department, Government of Bihar addressed to the Incharge Secretary, Bihar Technical Service Commission, Patna (hereinafter referred to as 'the Commission'), whereby the Commission has been asked to determine merit of such candidates who have obtained their MBBS qualification from an institution outside India, on the basis of 50% of the marks actually obtained by them in the MBBS examination. The said communication is in response to a letter written by the Commission dated 28.11.2019 in connection with Advertisement No. 3/2019 issued by the Commission.

5. The petitioner was an applicant for appointment against the post of Special Medical Officer, Gynecology in response to the said Advertisement. It is stated at the Bar that the selection process initiated pursuant to Advertisement No. 03/2019 is over. Learned counsel for the petitioner has submitted that he is not raising any grievance in relation to the petitioner's non-selection in the said selection process since appointments have been made pursuant thereto.

6. An Interlocutory Application being LA. No. 01/2021 has been filed seeking amendment in the writ application as during pendency of this writ application the respondent-Commission has come out with another Advertisement No. 17/2021 dated 28.04.2021, Clause-8 note (ii) of which prescribes that only 50% weightage shall be given to MBBS marks obtained by the candidates who have acquired such qualification from a foreign university for the purpose of preparation of merit-list. The petitioner is an applicant pursuant to this Advertisement No. 17/2021 also. Learned counsel for the petitioner has argued hat the said clause in the advertisement is contrary to the statutory Rules governing the selection for the post in question.

7. For the reasons mentioned in the Interlocutory Application, LA. No. 01 of 2021 is allowed. The averments made in the Interlocutory Application have been treated to be part of the main application. The relief sought for in the main application stands amended accordingly and the petitioner's prayer to question the legality of Clause 8 note (ii) of Advertisement No. 17/2021 dated 28.04.2021 stands allowed.

8. It is the petitioner's case that the recruitment for appointment to the post in question is governed by Bihar Health Service (Appointment and Service Condition) Rules, 2013, as amended by Bihar Health Service (Appointment and Service Condition) (Amendment) Rules, 2019. It is the petitioner's specific case that Rule 6 of the said Rules, as amended in 2019, requires determination of merit of candidate for appointment to the post in question against his/ her educational q