Judgment 1. Both the writ applications since arise out of common cause and common question of law and facts are involved, they have been heard together and are being disposed of by this order. 2. According to the case of the writ petitioners, they had applied for the post of Drug Inspectors, pursuant to advertisement no. 2 of 2000, issued by the Bihar Public Service Commission. Several other persons also applied for the said posts. The petitioners qualified in the written test and thereafter they were called for viva voce test. In the viva voce test they fared well. However, they were not finally recommended by the Commission for their appointments on the post of Drug Inspectors, whereas 42 persons were recommended by the Commission for their appointments. Ultimately, they were appointed by the Government. 3. It is submitted by Mr. Ram Balak Mahto and Mr. Ganesh Prasad Singh, learned Sr. Counsel for the petitioners that altogether 196 posts of Drug Inspector were advertised in the advertisement in question, out of which, only 42 posts were filled up. It is further submitted by learned counsel that in the advertisement it was mentioned that results will be published on the basis of the marks secured by the candidates both in the written test and viva voce test, but so far as the petitioners are concerned no separate marking was given in viva voce test whereas separate marking was given in cases of persons recommended by the Commission. It is also submitted by learned counsel that the Commission in its counter affidavit also accepts the proposition that separate marking should be given both in written test as well as in viva voce test but for the reasons best known to the Commission separate marking was not given so far as the petitioners are concerned in viva voce test and, thus, their cases have been prejudiced. 4. This Court, vide order, dated 24.8.2005 directed the learned counsel for the Commission to produce before this Court the marksheets of the successful candidates both of written and viva voce test. Pursuant to the order aforesaid, the marksheets of the successful candidates have been produced before me in sealed covered. 5. From the result sheet it appears that upto serial no. Pursuant to the order aforesaid, the marksheets of the successful candidates have been produced before me in sealed covered. 5. From the result sheet it appears that upto serial no. 42 separate marking has been given to the candidates both in written test and viva voce test and on the basis of the total marks secured by them they have been shown to be successful, whereas in cases of the petitioners their marks ob-tained only in written test have been indicated and no separate marking has been given in viva voce test but in the remarks column they have been shown to be unfit. 6. Learned counsel appearing on behalf of the Commission, on the other hand, submitted that since the petitioners were not found upto mark in viva voce test, no separate marking was given and they were found to be unfit. It is further submitted by learned counsel that the writ petitioners were unable to answer any question put by the members of the Commission in viva voce test and, therefore, no separate marking was given in viva voce test and they were found to be unfit. 7. From the advertisement which has been produced on record it is manifest that successful candidates of the Mains Examination would be interviewed and the marks secured by them, both in written test and viva voce test, will be the basis for publication of the merit list. 8. In paragraph 10 of the counter affidavit filed on behalf of the Commission, it is stated that Rule 14 of the Bihar State Drug Control Services (Recruitment and Service Condition) Rules 1989, hereinafter referred to as the Rules envisages that marks obtained in the interview is to be added to the marks in the written examination and the merit list is to be prepared on the basis of the aggregate. 9. In the instant case, it appears that the respondents authorities by not giving separate marks to the petitioners in viva voce test have violated the terms and conditions of the advertisement and also the provisions of the Rule 14 of the Rules 1989. 10. A plea now is being taken by the learned counsel for the Commission that since the petitioners had not answered the question satisfactorily, no separate marking was given and they were found unfit. 11. 10. A plea now is being taken by the learned counsel for the Commission that since the petitioners had not answered the question satisfactorily, no separate marking was given and they were found unfit. 11. From the materials as discussed above, it appears to me that the candidates up to serial no. 42, who were interviewed alongwith the petitioners, were given separate marking in written test and also in viva voce test, but so far as the petitioners are concerned, no separate marking was given in viva voce test and in the remarks column it was only written "unfit". 12. The plea taken by the learned counsel for the Commission that since the petitioner had not expressed themselves fully no separate marking was given, appears to be wholly misconceived. 13. A candidate who failed to answer the question or had failed to express anything, at least, some marks was required to be given to him ranging from zero onwards, but it is manifestly clear from the result sheet which has been produced before me that even zero marks has not been shown against their names in viva voce test, rather simply it was written unfit. 14. The petitioner Abhay Shankar Samar has secured 181 marks in written test, whereas the petitioners Neeraj Kumar Manas and Ajay Shankar Lorik had secured 180 and 177 marks respectively in written test. 15. It appears from the result sheet that the candidates who had even secured lessor marks than the petitioners, were given separate marking in viva voce test. At the same time, it is also manifest that the candidate at serial no. 42, who has been declared successful and was recommended, had secured only 164 marks in the written test, but 40 marks was given to her in viva voce test. In the result sheet it is not indicated against the names of the petitioners that they were unable to express anything about the question put by the experts or the members, of the Commission. The word used unfit in no way would connote that they had not expressed anything, rather it appears that altogether they were found unfit. 16. Thus, in my opinion, the require-ment of the advertisement and also that of Rule 14 of the Rules do not justify the actions of the respondents and the actions of the respondents are held to be arbitrary, discriminatory and wholly without jurisdiction. 17. 16. Thus, in my opinion, the require-ment of the advertisement and also that of Rule 14 of the Rules do not justify the actions of the respondents and the actions of the respondents are held to be arbitrary, discriminatory and wholly without jurisdiction. 17. It is informed by the learned counsel for the petitioners that after appointment of 42 persons on the post of Drug Inspectors, no further posts have been filled up and a large number of vacancies are existing. 18. Learned counsel for the Commission, however, submitted that to his information some of the posts have been filled up again by virtue of different orders passed by this Court. 19. Be that as it may, from the materials on record it appears that the advertised posts numbering 196 have not been filled up and many posts are lying vacant. 20. Considering the facts and circumstances of the case, therefore, the Bihar Public Service Commission is directed to allow these petitioners to appear in separate interview/viva voce test to be held after due notices and on the basis of their performance in viva voce test their results shall be published on the basis of the total marks secured by them both in written test and viva voce test. This exercise, however, should be completed by the Commission within eight weeks from the date of receipt/production of a copy of this order. 21. It is needless to say that in case the petitioners are recommended by the Commission for appointment on the post of Drug Inspectors, necessary notification shall be issued by the State Government forthwith and not beyond a period of four weeks from the date of receipt of the recommendation. 22. With this direction/observation, both the writ applications are disposed of.