In cases of selection by written test followed by viva voce, the marks allotted for viva voce should not exceed 12.2% for general candidates and 22.5% for ex-military personnel, as per the binding precedent of Ashok Kumar Yadav's case.

( 1 ) THIS is an application for review of an order dated 20th April, 2004, passed by a Division Bench of this Court by which the said Division Bench disposed of two separate writ applications, being WPST no. 846 of 2003 and WPST No. 1013 of 2003. both filed against the order dated 24th September, 2003 passed by the West Bengal Administrative tribunal ino. A. No. 3334 of 1999.

( 2 ) THE first of the aforesaid two applications was filed by one Subhro mukherjee ("subhro") who was the private-respondent before the learned tribunal while the other was instituted by one Abhijit Dey ("abhijit") who was the successful applicant before the Tribunal under section 19 of the administration Tribunals Act, 1985.

( 3 ) BY the order of the Tribunal, the selection of Subhro was quashed at the instance of Abhijit and a direction was given by the Tribunal to the respondents, namely, the David Hare Training Institute to hold fresh selection test for the post of the Clerk-cum-Accountant as per norms laid down by the Supreme Court in the case of Ashok @ Sumanna Gowda and Anr. vs. State of Karnataka, reported in 1992 (1) SCC 28 or as per the norms followed by the West Bengal Public Service Commission or in terms of any other recruitment rules that might have been finalised in the meantime.

( 4 ) BY the first writ application referred to above, Subhro was the petitioner who was really aggrieved because his selection was quashed by the Tribunal. The grievance of Abhijit in the second writ application was, however, that the Tribunal, instead of giving direction for fresh selection, ought to have straightaway given appointment to him in place of Subhro because he stood first in the written test and he will be the next man in the merit list if the appointment of Subhro is set aside.

( 5 ) AS indicated above, by the order dated 20th April, 2004, the Division bench allowed the application of Subhro and dismissed the application filed by Abhijit thereby setting aside the order of the Tribunal and maintaining the selection of Subhro.

( 6 ) BEING dissatisfied, Abhijit has come up with the present application for review alleging errors apparent on the face of the order dated April 20, 2004.

( 7 ) AS one of the Hon'ble Judges of the said Division Bench (hereinafter referred to as the Division Bench) is no longer available before this Court, the Hon'ble Chief Justice has assigned the matter before this Bench.

( 8 ) MR. Roy, the learned Advocate appearing on behalf of the applicant has laboriously contended before us that the Division Bench while setting aside the order of the Tribunal committed an error apparent on the face of the record by relying upon the decision of the Supreme Court in the case of jasvinder Singh and Ore. vs. State of Jammu and Kashmir and Ors. , reported in 2003 (3) SCC 132 and observing that the Tribunal below did not have the benefit of the later decisions of the Supreme Court and that the Tribunal delivered judgment only on the basis of two of the decisions passed by the supreme Court, one in the case of Ashok Kumar Yadav vs. State of Haryana and Ors. , reported in 1985 (4) SCC 417 and the other, being the case of Ashok @ Sumanna Gowda and Anr. vs. State of Karnataka reported in 1992 (1) SCC 28 which, according to the Division Bench, had since been distinguished in the Jasvinder Singh's case and according to the Division Bench, it was not even a case of conflict of decisions. Mr. Roy submits that the Division Bench totally overlooked the fact that the decision in the case of Ashok Kumar yadav (supra), was given by a Bench consisting of four-Judges while the decision given in Jasvinder Singh's case (supra), was delivered by a Bench consisting of two-Judges; over and above, Mr. Roy proceeds, the facts involved in the case of Jasvinder Singh (supra), are not. similar to the one we are concerned in this case.

( 9 ) MR. Roy further contends that in the case of Ashok Kumar Yadav (supra), a Bench consisting of