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8. These 164 posts referred by the Health & Medical Education Department were not advertised. Hereinafter these posts shall be referred as unadvertised posts. Despite non-advertisement of these posts the commission admittedly made selection on the basis of interviews conducted in respect of 430 advertised posts. The commission thus after the interviews completed the selection process of selection of total posts of 594 (430 advertised and 164 non-advertised). The commission selected 220 from open merit category 191, from RBA, 73 ST, 37 SC, 23 ALC and 11 from PHC category and issued a select list of 560 candidates. The result of one candidate in open merit category under first notification and one candidate in open merit in the second notification and other seven candidates who had become over age was kept withheld. Subsequently however, the result of five candidates was declared and they were selected. Thus the result of four candidates continues to remain withheld whereas 565 candidates have come to be selected by the commission. Thus as against total available posts of 594 (221 + 373 including 164 unadvertised posts) the commission made a recommendation of 565 candidates for appointment to the Government vide its communication No. PSC/DR/AS/2003 dated 28.6.2004 read with letter dated 1.7.2004, 17.7.2004, 20.7.2004 and 21.7.2004. The select list and the selection process is being challenged on various grounds by the petitioners who had participated in the selection process but have not been selected.

17. In SWP No. 1607/04 Dr. Romy Sharma v. State and others the petitioners are challenging the criteria fixed for selection as well as on the ground of mala fide; AND

18. In SWP No. 1658/2004 Dr. Sanjeev Kumar v. State, the selection is being challenged on the ground of malafide. According to the petitioners selection is bad as kith and kins of members of the commission have been selected and meritorious candidates have been left out.

19. The stand of the Public Service Commission-respondent projected in the counter affidavit broadly stated is that the selection in question was made by the commission by strictly following Rule 51 of the Rules of 1980. The selection process came to be initiated simultaneously with the issuance of advertisement notifications dated 23.6.2003 and 28.11.2003 and when the same was in currency the commission came to know about the judgment passed by the Hon'ble Supreme court in SLP 3734/2002 titled Dr. Inder Parkash Gupta v. State of J&K and ors on 17.5.2004. The commission by then had already interviewed 484 candidates and the rest of the candidates were to be interviewed up to 12.6.2004. When the process of interview was over the commission in all fairness and with all bona fide deemed it proper to complete the selection process being under the bona fide belief that the judgment of the Supreme Court was to operate prospectively and would not have any effect on the pending selections. The interviews were conducted by the selection committees comprised of two members of the commission and an expert on the subject called from out side the State belonging to prestigious medical institutions like AIIMS and medical colleges of Lucknow and Amritsar holding the rank of properfessor/Additional professors.

32. The principal contention of learned counsel for the petitioners is that the selections made by the commission by following same criteria which was envisaged by Rule 51 and which according to the Full Bench of this court, as well as the Hon'ble Supreme court was bad in law being contrary to law settled by the Supreme court by its various judgments, are bad in law so should be quashed.

33. Mr. Raina learned counsel appearing on behalf of the commission, however, contends that Rule 51 of rules of 1980 had not been declared ultra vires of the constitution but only advice was given to the commission to recast the same. Rule 51 had stood the test of judicial scrutiny in Abdul Wahid Zargar's case (supra) which was not interfered with even by the Apex Court in SLPs dismissed in limine on 20.3.1994 and therefore Rule 51 cannot be said to be illegal and more so when the Supreme Court was considering the scope of the same in the light of Rule 8 of Rules of 1979. He also submits that since the judgment of the Supreme Court came to the notice of the commission when it had already issued the advertisements for selection and therefore the selection process having been already started it was to be completed by strictly following Rule 51, for the reason the judgment of the Supreme Court was to operate prospectively and not retrospectively, assuming the same applied to the criteria in question.