IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2628 of 2023 ====================================================== Shashank Shekhar S/o Uttam Prasad Keshri, R/o Vill. Bhatta Durgabari, P.O. Purnea, P.S. Purnea, Dist. Purnea. ... ... Petitioner/s Versus 1. The State of Bihar through the Principal Secretary, Health Department, Govt. of Bihar, New Secretariat, Patna. 2. The Bihar Technical Service Commission through its Chairman, Patna. 3. The Secretary, Bihar Technical Service Commission, Patna. 4. The Civil Surgeon cum Chief Medical Officer, Sadar Hospital, Purnea. 5. The Superintendetn Govt Medical College and Hospital, Purnea. 6. Priyaranjan Lal, s/o Nandlal Prasad, Dist. Arwal. 7. Dewbrat S/o Paras Nath Prasad, Dist. Purbi Champaran. 8. Md. Arshad Ali S/o Md. Salimuddin, Dist. Vaishali. 9. Manoj Kumar, S/o Janardan Prasad Sahu, Dist. Patna. 10. Satyendra Gupta, S/o Shyamdeo Prasad, Dist. Gopalganj. 11. Md. Sarfraz Alam, S/o Md. Aminuddin Ansari, Dist. Araria. 12. Navin Kumar Mandal, S/o Brahmdeo Mandal, Dist. Patna. 13. Santosh Kumar Suman, S/o Ramu Pd. Gupta, Dist. Madhepura. 14. Md. Zahid Hussain Ansari, S/o Dr. M Khalid, Dist. Patna. 15. Amar KUmar, S/o Ravindra Prasad, Dist. Nawada. 16. Binod Kumar Sahani, S/o Bisheshwar Sahani, Dist. Begusarai. 17. Annapurna, D/o Jai Prakash Chourasia, Dist. Munger. 18. Piyush Kumar, S/o Shailendra Kumar Mandal, Dist. Munger. 19. Imran Alam, S/o Gyasuddin Ansari, Dist. Darbhanga. 20. Gyan Prakash, s/o Jai Prakash, Dist. Nalanda. 21. Robina Shamim, D/o Md. Shamin Akhtar Ansari, Dist. Gopalganj. 22. Sneha Suman, D/o Rabindra Prasad, Dist. Purbi Champaran. 23. Suraj Kumar, S/o Anandi Parasad, Dist. Patna. 24. Sonam D/o Prabhash Kumar Dist. Nawada. 25. Mohd. Rizwan, S/o Bhagwan Sah, Dist. Sitamarhi. 26. Niwedita Kumari, D/o Late Shiv Shankar Sharma, Dist. Patna. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Basant Kumar Choudhary, Sr. Advocate : Mr. Shashi Bhushan Kumar, Advocate For the Respondent/s : Mr. Ramadhar Singh, GP-25 ====================================================== CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR CAV JUDGMENT Date : 24-03-2026 Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 2/21 Heard the parties. 2. The present writ petition has been filed for quashing the selection list, by which the lower merit marks candidates have been selected, instead of the petitioner. Further, prayer in the writ petition is for a direction upon the respondent authorities to correct the selection list after including the name of the petitioner and accordingly, issue appointment letter on the post of Physiotherapist in favour of the petitioner. 3. The brief facts giving rise to the present writ petition are that an advertisement was published by the Bihar Technical Service Commission, Government of Bihar, Patna whereby total 126 posts of Physiotherapist was published vide Advertisement No. 02 of 2020, wherein the minimum qualification for appointment was mentioned. As per clause 4(iii) of the advertisement, 5 marks for each years was to be given as weightage mark, for the person working in the Government Hospital/other departments of the Government in the State and the maximum weightage mark to be given was 25. The petitioner, being eligible submitted his application on 25.05.2021 and thereafter the scrutiny of the application form of all the candidates was done. After scrutiny, the respondent authorities published the merit list/marks wherein the petitioner Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 3/21 is shown to have obtained 57.466 marks. Pursuant thereto, vide letter no. 2235 dated 01.12.2021, issued under the signature of the Secretary, Bihar Technical Service Commission, Patna, call letter for counselling to the selected candidates was issued, including the petitioner. 4. The learned senior counsel for the petitioner submits that all of a sudden, the marks given to the petitioner towards his experience, was withdrawn, upon which the petitioner raised an objection by filing an application before the competent authority. Along with his objection/application the petitioner submitted relevant documents in support of his claim, but the said weightage mark was not given to the petitioner. However, vide letter no. 1119 dated 26.05.2022, issued under the signature of the Secretary, Bihar Technical Service Commission, Patna, the petitioner was directed to produce appointment letter, for the work done by him in Government Medical College and Hospital, Purnea w.e.f. 30.07.2010 to 31.01.2018. In compliance thereof, the petitioner submitted the required document before the respondent authorities on 30.05.2022. 5. The learned senior counsel for the petitioner further submits that all of a sudden, the selection list was Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 4/21 published, wherein the cut off marks for EBC (M) category was 54.4933, but the petitioner who was awarded 57.466 marks, was not selected, since no weightage marks for the experience acquired by the petitioner, while working in the Government Medical College and Hospital, Purnea, was given. He submits that the action of the respondent authorities in denying the weightage marks, for the work experience is arbitrary and without deciding the objection filed by the petitioner, the respondent authorities proceeded to publish the select list, wherein the name of the petitioner does not figure. 6. The learned senior counsel for the petitioner further submits that the petitioner worked as a Physiotherapist in Government Medical College and Hospital, Purnea w.e.f. 22.06.2010 till 31.01.2018 and he was entitled for being given the weightage marks, but the respondent authorities in complete violation of the Clause 4(III) of the advertisement, did not provide the said weightage marks to the petitioner. 7. Per contra, the learned counsel appearing on behalf of the Bihar Technical Service Commission submits that in view of the Rules framed by the State Government, Bihar Technical Service Commission Selection Procedure Rules 2018 came into effect. The Department of Health, Government of Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 5/21 Bihar, Patna in exercise of its own power under proviso to Article 309 of the Constitution of India came out with Bihar Physiotherapist/Occupational Therapist Cadre Rules 2014 which was later on amended vide 2nd amendment to Rules 2014. The State Government as per Rule 3(iii)(c), in view of 2nd amendment, in 2019 provided for work experience in Government Hospital and other departments of Bihar, wherein 5 marks for each completed year was to be given as weightage marks, subject to maximum of 25 marks. The Bihar Technical Service Commission published the Advertisement No. 02 of 2020 for the post of Physiotherapist in consonance with the Rules framed by the State Government as well as the checklist provided by the Department of Health, Government of Bihar and in furtherance thereof provided Clause 4(iii) of the Advertisement, which specifically provide for award of 5 marks for each completed year, up to the maximum of 25 marks to each candidate, who has got work experience of contract basis in any Government Hospital or other Departments of the State Government. 8. The learned counsel appearing on behalf of the Bihar Technical Service Commission further submits that the work experience certificate of the petitioner was issued by the Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 6/21 Indian Red Cross Society, Purnea, therefore, the same was not accepted by the Commission, since the petitioner was an outsourced employee in the Sadar Hospital, Purnea and the work experience of the petitioner was not covered, as per Clause 4(iii) of the Advertisement, therefore, he was not awarded any weightage marks for the work experience claimed by him. Further from perusal of the Circular/Resolution of the State Government contained in Memo No. 1003 dated 22.01.2021 issued by the General Administration Department, specifically Clause 5 thereof, it would transpire that weightage of 5 marks for each completed year, subject to maximum 25 marks, would only be granted to the candidates who had worked on contractual basis in any Government Department of the State and its allied departments. The Clause 5 of the resolution dated 22.01.2021, is reproduced hereinbelow:- " …(5) mi;ZqDr lqfo/kk,Wa dsoy fof/kor~ fu;ksftr lafonk dfeZ;ksa dks vuqekU; gksxhA ;s lqfo/kk,Wa voS/k fu;qfDr;ksa] nSfud osruHkksxh dfeZ;ksa ,oa okg~; lsok iznkrk ls lsok izkIr dfeZ;ksa ds laca/k esa ykxw ugha gksaxhA nwljs “kCnksa esa ftu dfeZ;ksa dks fu;qfDr lkekU; iz”kklu foHkkx ds ladYi Kkikad&2401 fnukad 18-07-2007 (le;≤ ij ;Fkkla”kksf/kr) esa fu/kkZfjr izfdz;k ds vuqlj.k esa dh xbZ gSa] dsoy mUgha lafonk dfeZ;ksa ds lanHkZ esa mi;qZDr lqfo/kk,Wa vuqekU; gksxhA dsoy os gh fu;kstu oS| lafonk fu;kstu gSa ftuds laca/k esa& (1) in Lohd`r gks] (2) fu;qDr dehZ in dh vgZrk j[krk gks] (3) in foKkfir fd;k x;k gks] Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 7/21 (4) fu;qfDr gsrq p;u@Ldzhfuax lfefr dk xBu fd;k x;k gks ,oa p;u izfdz;k viuk;h x;h gks] (5) fu;qfDr l{ke izkf/kdkj }kjk dh xbZ gks] (6) vkj{k.k ds fl)kar dk vuqikyu fd;k x;k gksA ftu lafonk fu;kstu ds lanHkZ esa mi;qZDr “krksZa dk vuqikyu ugha fd;k x;k gS] os voS/k fu;qfDr;kWa dgyk;saxhA” 9. The learned counsel appearing on behalf of the Bihar Technical Service Commission further submits that the Civil Surgeon, Purnea by his letter no. 1316 dated 11.06.2022 had informed the Commission with regard to the appointment/working of the petitioner, wherein it was informed that the petitioner was working on need based basis as a outsource employee through Rogi Kalyan Samiti, Purnea, therefore, he is not entitled for being granted the weightage marks. 10. The learned counsel appearing on behalf of the Bihar Technical Service Commission by referring to supplementary counter affidavit filed on behalf of the Commission, submits that so far the contention with regard to acceptance of work experience certificate and grant of marks to his work experience on the basis of the certificate is concerned, the work experience certificate of the petitioner was issued by the Indian Red Cross Society, Purnea, therefore the same was not accepted by the Commission, as the petitioner was termed as Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 8/21 outsource employee working in the Sadar Hospital, Purnea, therefore, the work experience of the petitioner is not covered under the Clause of the advertisement. The Commission duly intimated the petitioner that he was not awarded the marks for his work experience in view of Clause 3(iii) of the advertisement on the ground that he was appointed by an outsourcing agency (Indian Red Cross Society) and in view of the Resolution of the State Government contained in Memo No. 1003 dated 21.01.2021 issued by the General Administration Department, specifically Clause 5 thereof, which has been quoted above. 11. The learned counsel appearing on behalf of the Bihar Technical Service Commission further submits that so far the Red Cross Society is concerned, a learned Single Judge of this Court vide judgment dated 23.08.2024 passed in C.W.J.C. No. 14779 of 2023 has held that the Indian Red Cross Society is not a instrumentality of the State and is a mere society registered under the Society Registration Act, therefore the experience certificate given by the society cannot be treated to be valid experience. 12. The learned counsel appearing on behalf of the Bihar Technical Service Commission finally submits that since Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 9/21 the petitioner is an employee working in Government Medical College and Hospital, Purnea as an outsourced employee, through the Indian Red Cross Society, his work experience was not counted in terms of the advertisement, thereby the Commission rejected the claim for the work experience. 13. The learned senior counsel for the petitioner in reply submits that the petitioner was working in a Government Hospital, on the basis of the contractual appointment and he was appointed by the Civil Surgeon, Purnea as a Physiotherapist and his name also appeared in the list of the State Health Society, Bihar and further the Rogi Kalyan Samiti, Sadar Hospital, Purnea is a part of the District Health Society, Bihar, Patna, therefore, the petitioner is entitled for being given weightage marks in terms of the advertisement. 14. It appears from the records that vide order dated 24.02.2025 passed in the present writ petition notices were issued to the private respondent nos. 6 to 26 and they were directed to file their counter affidavit. A counter affidavit has been file on behalf of the respondent nos. 6 to 26 (the selected candidates) wherein it has been stated that they have been recommended by the Bihar Technical Service Commission for being appointed, as per the merit list prepared on the basis of the Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 10/21 counselling of the candidates/applicants and pursuant thereto vide letter no. 1146 dated 26.12.2022, the Department of Health, Government of Bihar, Patna has already posted the respondent nos. 6 to 26 at their respective place of posting and they are working on their respective posts at their respective place of posting, to the satisfaction of the authorities concerned. The commission has rightly not awarded any marks to the petitioner for his work experience, since the same was not as per the advertisement and the Circular/Resolution of the State Government. 15. The learned counsel for the respondent nos. 6 to 26 submits that the selection of the respondents was made after following due process of law and the petitioner has not been given the benefit of weightage marks, since his work experience was on the basis of outsource, through Red Cross Society and as per the Circular of the State Government, the weightage is not to be granted for persons working through outsource agency. 16. The learned senior counsel for the petitioner relies on a judgment passed by the Hon'ble Supreme Court of India in Civil Appeal No. 2634 of 2013 wherein in paragraph no. 30 and 42, it has been held as follows:- 30. What is clear from above is that the object of any process of selection for Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 11/21 entry into a public service is to ensure that a person most suitable for the post is selected. What is suitable for one post may not be for the other. Thus, a degree of discretion is necessary to be left to the employer to devise its method/procedure to select a candidate most suitable for the post albeit subject to the overarching principles enshrined in Articles 14 and 16 of the Constitution as also the Rules/Statute governing service and reservation. Thus, in our view, the appointing authority/ recruiting authority/ competent authority, in absence of Rules to the contrary, can devise a procedure for selection of a candidate suitable to the post and while doing so it may also set benchmarks for different stages of the recruitment process including written examination and interview. However, if any such benchmark is set, the same should be stipulated before the commencement of the recruitment process. But if the extant Rules or the advertisement inviting applications empower the competent authority to set benchmarks at different stages of the recruitment process, then such benchmarks may be set any time before that stage is reached so that neither the candidate nor the evaluator/examiner/interviewer is taken by surprise. The decision in K. Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 12/21 Manjusree (supra) does not proscribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played. This view is in consonance with the rule against arbitrariness enshrined in Article 14 of the Constitution and meets the legitimate expectation of the candidates as also the requirement of transparency in recruitment to public services and thereby obviates malpractices in preparation of select list. 42. We, therefore, answer the reference in the following terms: (1) Recruitment process commences issuance of the advertisement calling for applications and from the ends with filling up of vacancies; (2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 13/21 satisfy the test of non-arbitrariness; (3) The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues; (4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent,non- discriminatory/arbitrary and has a rational nexus to the object sought to be achieved. (5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps; (6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 14/21 exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list. 17. The learned senior counsel for the petitioner further relies on a judgment reported in 2024 SCC Online SC 3540 Chaudhary Charan Singh Haryana Agricultural University, Hisar and Another versus Monika and Others wherein in paragraph nos. 16, 22, 23, 25, 26 and 27, it has been held as follows:- 16. Dr. (Major) Meeta Sahal v. State of Bihar arose out of a case where the advertisement provided for the grant of marks for work experience after appointment on a regular/contract basis in the government hospitals. In the advertisement, it was also stated that only work experience in government hospitals of the Government of Bihar would be counted for this purpose. This Court, therefore, in interpreting the term "government hospital" held: "20. It is a settled canon of statutory interpretation that as a first step, the courts ought to interpret the text of the provision and construct it literally. Provisions in a statute must be read in their original grammatical meaning to give its Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 15/21 words a common textual meaning. However, this tool of interpretation can only be applied in cases where the text of the enactment is susceptible to only one meaning. [Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271, para 13.] Nevertheless, in a situation where there is ambiguity in the meaning of the text, the courts must also give due regard to the consequences of the interpretation taken. 23. ... The phrase 'government hospital' therefore cannot be construed to exclude other non- private hospitals which are otherwise run exclusively with the aid and assistance of the Governments. Additionally given the difference 'government hospital' refers to all non-private hospitals and not in common usage wherein hospitals established by a particular Government, Rules 5 & 6(iii) would not be bound by Rule 2(a)." (emphasis supplied) 22. A literal reading of the terms relating to experience confirms that marks could be secured by an aspirant for experience gathered while working in the enumerated departments of the Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 16/21 Government of Haryana; however, while referring to 'same or a higher post', the term 'sanctioned' as a prefix is conspicuous by its absence. Additionally, neither the Outsourcing Policy nor the Advertisement defines the word "post". What follows is that an aspirant, to secure mark for experience, must prove with documents that he/she has been employed for performing work of the nature required by the same or a higher post. Importantly, it has not seen shown that either the Recruitment Rules or the Advertisement specifically bar(s) aspirants from securing marks for experience sained from contractual/outsourced employment. Thus, we have no hesitation to hold that the mode of employment is not the primary concern. To our mind, the primary concern is the nature of work performed and whether the work undertaken by the candidate has any nexus with the purported work to be undertaken during the course of regular service. That the first respondent had rendered service for a statutory body in excess of six months and is, therefore, covered by the last part of clause (d) does not admit of any doubt and hence, she had a valid Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 17/21 claim for securing 0.5 mark for experience. 23. The state policy, specifying that the individual must have worked on a post equal to or higher than the advertised posts in any of the enumerated departments to secure marks for experience, also reflects the state's belief that the experience in such departments is directly relevant to the advertised posts. It is not open for the University to now deny marks on the basis of a technical procedural deviation that the experience certificate was not issued by the University, but rather by the service provider. While we accept the contention raised by the University that the certificate was per se not issued by it, the fact that it was countersigned by the Head of the Department validates the first respondent's claim that she had indeed gained certain experience which deserved to be given credit. 25. The first respondent, thus, cannot be denied the benefit of mark for experience merely because at the time of appointment as outsourced manpower, she was not appointed on a sanctioned post. 26. The true thrust of every selection Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 18/21 process ought to be to find out and select suitable candidates, having experience in the related work and fulfilling other criteria, from among eligible candidates and to go ahead with appointing the more meritorious of those found suitable. If indeed an individual without having any security of service performs up to the mark and receives commendation from none other than the Head of the Department, who must have closely watched his/her performance, it would occasion a failure of justice to exclude such Individual for no better reason than that he/she did not work on a sanctioned post. If indeed such be the requirement, it had to be made explicitly clear in the Advertisement without any ambiguity so as not to generate false hopes in the minds of individuals aspiring for public employment. Any other view would be against both the principles of equality and non-arbitrariness enshrined in the Constitution as well as principles of natural justice. Tested on the touchstone of Articles 14 and 16, the impugned decision of the University cannot sustain. 27. An underlying current throughout the Constitution is the theme of "social justice". The Preamble, as well as Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 19/21 Article 38 of the Constitution, enjoins upon the State instrumentalities the duty to promote the welfare of the people by securing and protecting, as effectively as it may, a social order, in which justice social, economic and political shall inform all the institutions of national life and in endeavour to eliminate inequalities. status, facilities and opportunities. Whenever a conflict arises between the powerful and the powerless, social justice commands the Courts to lean in favour of the weaker and poorer sections where the scales are evenly balanced. 18. After having heard the learned counsel for the parties and after going through the materials available on record, this Court finds that in the advertisement, which was issued for appointment for the post of Physiotherapist and Occupational Therapist, as per Clause 4(iii) weightage marks was to be given for the work experience in the Government Hospital/other departments of the Government in the State. The maximum weightage marks which was to be given was 25 marks and in terms of the said advertisement, the petitioner and others applied. After preparation of merit list, the petitioner was awarded 32.466 marks by deriving percentage points and 25 marks was awarded to him for the work experience. The Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 20/21 petitioner got total combined marks of 57.466, which was later on reduced to 32.4655 on the ground, that the weightage marks to the tune of 25 marks was applicable to the candidates, who were appointed in the Government Hospital in the State of Bihar on contract basis and the said benefit has not been given to the outsourced employees. In case of the petitioner, since he was working in the Government Medical College and Hospital, Purnea through outsourcing agency Red Cross Society and since the outsourcing agency does not follow any rule and regulation for selecting a candidate, therefore as per the Resolution of the State Government dated 22.01.2021 which is in continuation of the earlier Circular of the General Administration Department bearing Sankalp No. 2401 dated 18.07.2007, amended from time to time, which stipulates that the weightage for work experience will only be given to candidate working on contract basis, recruited by following all due procedure of law and will not be given to the candidates who were recruited illegally, daily wage basis and through outsource agency. The petitioner was never appointed on contract basis and it is not the case of the petitioner that he was appointed on contract basis, rather he was appointed in the hospital concerned through an outsourcing agency and, therefore, rightly so he has not been given the weightage of 25 Patna High Court CWJC No.2628 of 2023 dt. 24-03-2026 21/21 marks and there is no infirmity in the same, since admittedly the petitioner was working through an outsource agency i.e. Indian Red Cross Society. The judgment relied upon by the learned senior counsel for the petitioner is not applicable in the present case, since the Rule has not been changed after issuance of the advertisement rather in the present case, the Technical Service Commission on the basis of Resolution of the State Government dated 22.01.2021, which is before submission of the application form by the petitioner and others, has proceeded with the selection, therefore there is no infirmity in relying on the said Resolution. 19. From the consideration made above, this Court finds no merit in the writ petition and the same is dismissed accordingly. 20. Pending applications, if any, shall also stands disposed of. AjayMishra/- (Ritesh Kumar, J) AFR/NAFR CAV DATE 19.02.2026 Uploading Date 24.03.2026 Transmission Date NA