IMPORTANT POINT
The court established that amendments to recruitment rules can change the selection process, and the discretion of the recruiting agency in determining the method of selection is upheld unless found to be patently illegal.

JUDGMENT :

(Vipul M. Pancholi, J.) :

The present petition has been placed before us pursuant to the order dated 01.10.2021 passed by the learned Single Judge, whereby the learned Single Judge has referred the matter to the Hon’ble The Chief Justice for placing this matter before a larger Bench. Hon’ble The Chief Justice, therefore, directed the office to place this petition before the present Division Bench.

2. The petitioners have preferred the present petition under Article 226 of the Constitution of India in which they have prayed for the following relief/s:-

“(i) For issuance of writ in the nature of mandamus for a direction to the respondent authorities to hold competitive written examination in place of selection on marks basis for the post of Ayush Medical Officer advertised by the Bihar Technical Service Commission, Patna vide Advertisement No. 04/2020 to 09/2020.

(ii) For issuance of writ in the nature of Certiorari for read down/struck down the Clause-4 of Advertisement No. 4/2020 to 09/2020 which relates to selection process on marks basis.

(iii) For any other relief/reliefs if petitioner found entitle in the facts and circumstances of the present case.”

3. The factual matrix of the present case is as under:-

3.1. Petitioners claim to be holding the degree of Bachelor of Homeopathic Medicine and Surgery (B.H.M.S.) from recognized institutions.

3.2. The Bihar Technical Service Commission (for the sake of convenience hereinafter referred to as Commission), on the basis of the requisition sent by the Health Department, Government of Bihar, has issued a notice containing advertisement Nos. 4 of 2020 to 9 of 2020 inviting applications for filling up the posts of Ayurvedic Medical Officer, Unani Medical Officer, Homeopathic Medical Officer, Ayush Physician (Ayurvedic), Ayush Physician (Unani), Ayush Physician (Homeopathy) in the pay-scale of Rs.9300-34800 with grade-pay of Rs. 5400/L-9. A total of 3270 posts have been advertised.

3.3. Clause-4 of the advertisement provides the process of selection from which it is revealed that the merit-list is to be prepared on the basis of the marks secured by the candidates in their qualifying examination, i.e. B.A.M.S., B.U.M.S., B.H.M.S., Post Graduation (M.D./M.S. or Higher Education) and the points of work experience acquired by them while working on their engagement on contractual basis in recognized Government Hospitals/Institutions. Following is the break-up of weightage as mentioned in the advertisement against the 3 attributes:-

3.4. The petitioners have, therefore, preferred the present petition challenging the aforesaid advertisement and the process of selection disclosed by the respondent authorities in the aforesaid advertisement.

4. Heard Mr. Mrigank Mauli, learned Senior Counsel for the petitioners assisted by Mr. Rakesh Kumar Sharma, Mr. Sanket, Mr. Alok Anand and Mr. Navin Kumar Singh, Mr. Birju Prasad, G.P. 13 for the respondent State assisted by Mrs. Shweta Anand and Mr. Ravi Kumar, Mr. Nikesh Kumar, learned counsel for the respondent Commission, Mr. Prashant Sinha, learned counsel for intervenor respondent Nos. 5 to 11 assisted by Mr. Rishi Raj Ranjan and Mr. Kunal, Mr. Chakrapani, learned counsel for the respondent Nos. 13 and 14 assisted by Mr. Madhuresh Singh and Mr. Dipak Kumar.

Submissions on behalf of the petitioners

5. Learned Senior Counsel for the petitioners has mainly raised the following contentions-

5.1. Learned Senior Counsel has referred Bihar District Ayush Medical/State Ayush Medical Servic