Prakash Chandra Agarwal Vs. State of
Bihar & Ors [1985] INSC 187 (26 August 1985)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) MISRA, R.B. (J)
CITATION: 1985 AIR 1709 1985 SCR Supl. (2)
693 1985 SCC (4) 105 1985 SCALE (2)377
ACT:
Bihar Civil Service (Judicial Branch)
Recruitment Rules, 1955, Rules 15 and 19 - Selection by State Service
Commission Qualifying marks for being called for interview fixed at 40% in
consultation with High Court - Later on Commission refixed the marks at 38% in
consultation with High Court - Candidate obtaining 38.8% marks called for
interview but not appointed Whether justified.
HEADNOTE:
The Bihar Civil Service (Judicial Branch)
(Recruitment) Rules, 1955 vests the Bihar Public Service Commission by clause
(a) of Rule 15 the power to fix the qualifying marks in any or all the subjects
at the written examination for the posts of Munsiffs in the Bihar Judicial
Service but before doing 80 the Commission has to consult the High Court. Rule
17 of the Rules provides that if a candidate has secured less than the
prescribed qualifying marks as required under Rule 15 he would not be eligible
for the viva voce test, while under rule 19 the marks obtained at the viva voce
test are to be added to the marks obtained at the written examination.
The appellant appeared at the 19th
Competitive Judicial Service Examination and obtained in all 416 marks
including the marks obtained at the viva voce test. However, he secured only
38.8 per cent marks at the written examination.
At the first instance, 83 candidates were
appointed as Munsiffs. Later on, the commission submitted another list of 38
candidates to the Government for being appointed as Munsiffs, but it did not
iuclude the name of the appellant even though it had included at Serial Nos. 36,
37 and 38 of the names of candidates who had secured lower marks than what the
appellant had obtained. Aggrieved by the non- inclusion of his name in the list
of successful candidates, he filed a writ petition in the High Court which was
dismissed.
The appellant contended in his appeal before
the Supreme Court that the Commission hat in exercise of its discretion fixed
38 per cent marks in the written papers as the qualifying marks 694 under Rule
15(a) after consultation with the High Court and the exclusion of his name from
the list of successful candidates prepared under Rule 19 was, therefore,
contrary to the Rules. The respondent, however, argued that the name of the
appellant was not included in the list of successful candidates prepared under
Rule 19 on the ground, that he hat obtained less than 40 per cent marks in the
written papers which were the qualifying marks fixed under Rule 15 (a).
Allowing the appeal, ^
HELD: 1. The entire approach adopted by the
High Court is wrong. The High Court should have first decided the question
whether the Commission had fixed 40 per cent marks as qualifying marks or 38%
as it is claimed by the appellant and then it should have proceeded to decide
whether the name of the appellant has been properly excluded from the li-t
prepared under Rule 19 of the rules or not. It was in error in holding that the
Commission hat fixed the qualifying marks at 40 per cent merely because it had
not included the names of any candidates who hat secured less than 40 per cent
qualifying marks in the list prepared under rule 19. Such non-inclusion by
itself and without more does not amount to a decision made by the Commission.
The Commission did not actually plead that it hat made any such fresh
determination. It appears to be a new case mate out by the High Court to
support the action of the Commission which has contrary to its own decision
fixing the qualifying arks at 38 per cent. It may be that, in fact, there was
no candidate belonging to the unreserved category who bad secured less than 40
per cent marks in the written papers amongst the first batch of 83 candidates
but what is relevant is the standard which was applied when the said list was
prepared. That list must have been prepared without any doubt in the light of
the qualifying marks fixed by the Commission at 38 per cent for the unreserved
category on the basis of which the viva voce test of all the candidates
belonging to both the batches including the appellant had been held. That
standard could not be varied when the next list was prepared. The High Court
has failed to appreciate this aspect of tho case. [703 A,E-F, 704 A-C]
2. The Commission had fixed 38 per cent as
the qualifying marks under Rule 15 (a) of the Rules for the candidates
belonging to the unreserved category. Having fixed 38 per cent as the
qualifying marks, it was not open to the Commission to exclude the name of a
candidate who had secured 38.8 per cent marks in the written examination only
because the High Court had earlier 695 recommended that 40 per cent marks
should be the qualifying marks when it was consulted by the Commission. As long
as fresh determination is made, every candidate who has secured 38 per cent
marks and above in the written examination would be entitled to appear at the
viva voce test and to be included in the list prepared under Rule 19 of the
Rules in the order of merit on the basis of the aggregate marks obtained in the
written examination and in the viva voce test. [703 B-E] In the instant case,
admittedly the two candidates whose names are shown against Serial Nos. 36 and
37 had secured 415 marks in the aggregate and the candidate shown against
Serial No. 38 had secured 413 marks while the appellant had secured 416 marks.
The name of the appellant should have, therefore, been included in the list
submitted by the Commission to the Government under Rule 19 by placing it above
the name of the candidate at Serial No.36. By not doing 80 the Commission had
violated the Rules and also Articles 14 and 16 of the Constitution. Therefore,
the decision is directed to submit to the Government a revised list showing the
name of the appellant above serial No.36 and the State Government is directed
to consider the case of the appellant for appointment as Munsiff under Rule 21
of the rules as if his name had been shown above the candidate whose name is
shown against Serial No.36. It is further ordered that on his appointment, the
appellant shall be placed above the candidate shown against Serial No.36 in the
seniority list and he shall be given all increments etc. as if he had been
appointed on the date on which the candidate at Serial No.36 was appointed. 704
D, F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
4011 of 1985.
From the Judgment and Order dated 16.4.1985
of Patna High Court in C.W.J.C. No. 1449 of 1984.
Petitioner in person.
Jaya Narain and U.S. Prasad for the
Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. This is an appeal by special leave filed against the judgment
of the High Court of Patna in Civil Writ Jurisdiction Case No. 1449 of 1984
dated April 16, 1985 by which the High Court declined to grant the prayer of
the appellant for 696 the inclusion of his name in the list of successful
candidates at the 19th Competitive Judicial Service Examination held in
December 1979 by the Bihar Public Service Commission (hereinafter referred to
as 'the Commission'). The facts of the case are briefly these.
Pursuant to an advertisement issued by the
Commission in the month of October, 1979 calling for applications from eligible
candidates to fill up the posts of Munsiffs in the Bihar Judicial Service, the
appellant filed his application before the Commission within time. He appeared
at the Competitive Judicial Examination held in the month of December, 1979,
the Roll No. allotted to him being 388.
Thereafter on July 27, 1981 he appeared at
the viva voce test held by the Commission. The appellant obtained in all 416
marks including the marks obtained at the viva voce test. He, however, did not
receive any order of appointment although a candidate who had secured in the
aggregate lower marks than what he had secured had been appointed as Munsiff.
Aggrieved by the non-inclusion of his name in the list of successful candidates
he filed the above said Writ Petition in the High Court of Patna under Article
226 of the Constitution which ultimately came to be dismissed as mentioned
above. This appeal by special leave is filed against the judgment of the High
Court.
At the first instance, the Government had
decided to appoint 83 candidates as Munsiffs. Later on, it was decided to
appoint in all 139 candidates as Munsiffs. After the list of successful
candidates was submitted by the Commission, the Government appointed on
September 16, 1982, 83 candidates as Munsiffs. Later on by its order dated May
3, 1983, 14 more candidates who belonged to the 'Most Backward Classes' were
appointed. These 14 appointments were challenged by some of the candidates in
two Writ Petitions filed before the High Court, i.e., C.W.J.C. 1868/l983 and C.W.J.C.
2209/1983. The High Court allowed these petitions, quashed the appointments of
the said 14 candidates on the basis of reservation and directed the Commission
to forward the names of successful candidates in accordance with the Rules.
Then a further list containing names of 18 candidates was submitted by the
Commission. After a petition for contempt was filed in M.J.C. No. 600 of 1983
before the High Court, another list containing names of 20 candidates was
submitted. In the consolidated list of these 38 candidates the Commission did
not include the name of the appellant even though it had included at serial
Nos. 36, 37 and 38 the names of candidates who had secured lower marks than
what the appellant had obtained. In this appeal we are called upon to examine
whether the exclusion of the name of the appellant from that list was justified
or not.
697 The recruitment to the Judicial Branch of
the Bihar Civil A Service is regulated by the Bihar Civil Service (Judicial
Branch) (Recruitment) Rules, 1955 (hereinafter referred to as 'the Rules')
promulgated by the Governor of Bihar under Article 234 of the Constitution of
India after consultation with the High Court of Judicature at Patna and the
Commission. Rule 2(a) of the Rules provides that the recruitment to the posts
of Munsiffs shall be made in accordance with the Rules. Rule 3 of the Rules
requires the Governer to decide in each year the number of vacancies in the
cadre of Munsiffs to be filed by appointments to be made on a substantive basis
or on a temporary basis or both. On such determination being made the
Commission is required by rule 4 of the Rules to announce in each year, in such
manner as it thinks it, the number of vacancies to be filled that year by
direct recruitment on the results of a competitive examination. The Commission
is required by the Rules to invite applications from candidates eligible for
appointment as Munsiffs. The competitive examination is required to be
conducted by the Commission. The qualifications which a candidate for the post
of Munsiff should possess are set out in rule 6 of the Rules. The competitive
examination is to be held in accordance with the syllabus specified in Appendix
'C' to the Rules. The relevant part of Appendix 'C' to the Rules reads as
follows:
Subjects Marks
1. Compulsory- (1) General Knowledge
(including 150 current affairs) (2) Elementary General Science 100 (3) General
Hindi 100 This compulsory paper will be a qualifying subject in which all
candidates shall be required to secure a minimum of 30 marks but the marks
secured in this paper will not be added for the purpose of determination of
merit.
2. Optional.- Candidates must appear in
subject No. 4 and select any three out of the remaining five subjects- (4) Law
of Evidence and Procedure 150 (5) Constitutional Law of India and England 150
698 (6) Hindu Law and Muhammadan Law 150 (7) Law of Transfer of Property and
Principles of Equity including Law of Trusts and Specific Relief. 150 (8) Law
of Contracts and Torts 150 (9) Commercial Law 150
3. Viva Voce test 200 Rule 15 of the Rules
which 18 material for the purpose of this case reads a follows:
"15. (a) The Commission shall have
discretion to fix the qualifying marks in any or all the subjects at the
written examination in consultation with the Paten High Court.
(b) The minimum qualifying marks for
candidates belonging to the Scheduled Castes and the Scheduled Tribes shall not
be higher than 35% unless the number of such candidates qualifying at the
written test according to the standards applied for other candidates is
considerably in excess of the number of candidates required to fill all the
vacancies reserved for the Scheduled Castes and the Scheduled Tribes;
Provided that in determining the suitability
of a particular candidate for appointment, the total marks obtained at the
written examination and not the marks obtained in any particular subject or
subjects, shall be taken into consideration.
(c) There shall be no qualifying marks for
the viva voce test." Clause (a) of rule 15 of the rules vests with the
Commission the power to fix the qualifying marks in any or all the subjects at
the written examination but before exercising its discretion in this regard the
Commission has to consult the Patna High Court. We are not concerned with clause
(b) of rule 15 of the Rules in this case. Clause (c) of rule 15 provides that
there shall be no qualifying marks for the viva voce test. Rule 17 of the rules
reads thus:
699 "17. On the basis of the marks
obtained at the written examination, the Commission shall arrange for viva voce
test of the candidates who have qualified at the written examination according
to rule 15:
Provided that in exceptional circumstances
and with the prior approval of Government, the Commission may, at their
discretion, admit candidates of the Scheduled Castes and the Scheduled Tribes
to the viva voce test even though they may not have obtained the minimum
qualifying marks at the written test.
It is clear from rule 17 of the Rules that if
a candidate has secured less than the marks prescribed as the qualifying marks
under rule 15 he would not be eligible for the viva voce test. Rule 19 of the
Rule lays down the procedure to be followed in the preparation of the final
list of successful candidates to be submitted by the Commission to the
Governor. It reads thus:
"19. The marks obtained at the viva voce
test shall be added to the marks obtained at the written examination. The names
of candidates will then be arranged by the Commission in order of merit. If two
or more candidates obtained equal marks in the aggregate, the order shall be
determined in accordance with the marks secured at the written examination.
Should the marks secured at the written Examination of the candidates concerned
be also equal then the order shall be decided in accordance with the total
number of marks obtained in the optional papers. From the list of candidates 80
arranged the Commission shall nominate such number of candidates as may be
fixed by the Governor in order of their position in the list. The nominations
so made shall be submitted to the Governor by such date in each year as the
Governor may fix.
In the instant case it is not disputed that
the appellant had secured 38.8 per cent marks at the written examination and
that he had also appeared at the viva voce test conducted by the Commission. It
is stated that his name was not included in the list of successful candidates
prepared under rule 19 of the Rules on the ground that he had obtained less
than 40 per cent marks in the written papers which according to the High Court
were the 700 qualifying marks fixed under rule 15 (a). The case of the
appellant, however, is that the Commission had in exercise of its discretion
fixed 38 per cent marks in the written papers as the qualifying marks under
rule 15 (a) after consultation with the High Court and the exclusion of his
name from the list of successful candidates prepared under rule 19 was contrary
to the Rules. m e decision in this case, therefore, turns on the answer to the
question whether the Commission had fixed 40 per cent as mini = qualifying
marks under rule 15 (a) of the Rules or 38 per cent as it is claimed by the
appellant. In Paragraphs 5, 6 and 8 of the counter-affidavit filed by Nilamani
Prasad Srivastava, an Assistant in the office of the Commission before the High
Court it is stated as follows:- "5. That the Bihar Civil Service (Judicial
Branch)(Recruitment) Rule 15 (a) provides that the Commission shall have
discretion to fix qualifying marks in any or all the subjects at the written
examination in consultation with the Patna High Court.
6. mat in view of the above rule the
Commission consulted Hon'ble Patna High Court for fixing qualifying marks for
the written Examination of 19th Judicial Service Examination, Patna High Court
vide their letter No. 14265 dated 8th Oct.
80 said among other things that the
qualifying marks for viva voce test for the Scheduled Caste and Scheduled Tribe
candidates should be 30% and for the rest 40%. The High Court also did not
accept various categories for reservation meant for the candidates belonging to
the Backward Classes.
............................................
8. That since the Government did not revice
the number of vacancies fixed earlier category wise including various
categories of Backward Classes the Commission ultimately had to fix the
following as qualifying marks at the written examination for calling the
candidates for interview, in accordance with law.
The qualifying marks as fixed by the
Commission are indicated as follows:- Unreserved 38% Backward Class 38% 701
Most Backward Class 25% Economically Weaker (Ladies) 25% Economic Backward
Class 25% (Non-SC/Non-SC/Non-MBC) S.T. 25% S.C. 25% It is seen from the above
extract of the counter- affidavit filed on behalf of the Commission that the
High Court had no doubt stated that the qualifying marks for candidates other
than the candidates belonging to the Scheduled Castes and the Scheduled Tribes
should be 40 per cent when it was consulted by the Commission as required by
the Rules but the Commission had ultimately fixed the qualifying marks at 38
per cent for the unreserved class of candidates after taking into consideration
the opinion of the High Court. We are not concerned in this appeal with the
cases of candidates belonging to the other classifications referred to in
Paragraph 8. The appellant was no doubt treated as a Backward Class candidate
but such classification did not find favour with the High Court in one Of the
judgments rendered by it. But having secured 38.8 per cent marks in the written
papers the appellant was eligible to appear at the viva voce test as a
candidate BELONGING to the unreserved category as he satisfied the qualifying
marks PRECLUDED for the candidates belonging to that category. The Commission
having fixed 38 per cent marks as the qualifying marks after consulting the
High Court it was not permissible for the commission refuse to follow that
decision and to decline to include the name of the appellant in the list of
candidates which was forwarded by it to the Government under rule 19. Dealing
with the above contention of the appellant in the course of its judgment the
high Court has observed thus:
"learned counsel for the petitioner
Submitted that the expression 'consultation' occurring in rule 15 does not mean
concurrence. In other words, the Commission is not bound by the advice given by
High Court in respect of fixation of qualifying marks at the written
examination. In support of this contention learned counsel purported to refer
to different cases of the 702 Supreme Court where the expression
"consultation" has been examined. In my opinion, in the facts and
circumstances of the present case there is no necessity of examining the scope
of rule 15 as to whether the Commission has to set according to the advise of
the high Court while fixing the qualifying marks at the written examination.
That question could have arisen if the Commission did not according to the
advice of the High Court. In the instant case, the Commission has acted
according to advice given by the High Court.
Merely because the candidates having secured
less than 40% marks were called for interview, in my view, it shall not clothe
them with any right to be selected for appointment. I have already pointed out
that in the counter-affidavit it has been explained as to why at that stage the
Commission had decided to call for interview even the candidate who had secured
38% marks. But while recommending the names for appointment, a list of
successful candidates had been prepared ret strictly in accordance with Rules
19 and 20 of the Rules. Learned counsel appearing for the petitioner had to
admit that no candidate has been recommended for being appointed by the
Commission who had secured less than 40% marks at the written examination. In
that view of the matter there is no scope for an agreement that the petitioner
has been discriminated in any manner." The High Court, with great respect,
has tried to avoid the question which squarely arose Before it. The High Court
has observed that on the facts and in the circumstances of the present case
there was no necessity for examination the scope of rule 15 of the Rules as to
whether the Commission had to act according to the advice of the High Court
while fixing the qualifying marks at the written examination and that the said
question would have arisen if the Commission had not acted according to the
advice of the High Court. The High Court has further observed that merely
because the Commission had interviewed candidates who had secured less than 40
per cent marks the appellant would not be entitled to claim any right to be
selected for the appointment. The High Court has further upheld the action of
the Commission by observing that since the Commission had not recommended any
candidate who had secured less than 40 per cent marks at the written
examination there was no scope for the contention that the appellant had been
discriminated against. With 703 great respect, the entire approach adopted by
the High Court is wrong. The Court should have first decided the question
whether the Commission had fixed 40 per cent marks as qualifying marks or 38%
as it is claimed by the appellant and then it should lave proceeded to decide
whether the name of the appellant has been properly excluded from the list
prepared under rule 19 of the Rules or not. It is admitted in the
counter-affidavit filed on behalf of the Commission that the Commission had
fixed 38 per cent as the qualifying marks under rule 15(a) of the Rules for the
candidates belonging to the unreserved category. Having fixed 38 per cent as
the qualifying marks, it was not open to the Commission to exclude the name of
a candidate who had secured 38.8 per cent marks in the written examination only
because the High Court had earlier recommended that 40 per cent marks should be
the qualifying marks when it was consulted by the Commission. In the
counter-affidavit there is no reference to any fresh fixation of qualifying
marks made by the Commission after it had once taken the decision to fix 38 per
cent marks as the qualifying marks in regard to the candidates belonging to the
unreserved category at the 19th Competitive Judicial Service Examination. As
long as such fresh determination is not made every candidate who has secured 38
per cent marks and above in the written examination would be entitled to appear
at the viva voce test and to be included in the list prepared under rule 19 of
the Rules in the order of merit on the basis of the aggregate marks obtained in
the written examination and in the viva voce test. The High Court was in error
in holding that the Commission had fixed the qualifying marks at 40 per cent
merely because it had not included the names of any candidates who had secured
less than 40 per cent qualifying marks in the list list prepared under rule 19.
Such non- inclusion by itself and without more does not amount to a decision
made by the Commission. The Commission did not actually plead that it had made
any fresh determination. It appears to be a new case made out by the High Court
to support the action of the Commission which was contrary to its own decision
fixing the qualifying marks at 38 per cent.
The acceptance of the view of the High Court
would also lead to the anomalous result of prescribing two different qualifying
marks at two different stages in respect of the same examination. i.e. One for
the first batch of 83 candidates appearing in the same examination who were
appointed on September 16, 1982 before any dispute arose about the appointments
in question and another for the next batch of 38 candidate whose names were
forwarded to the Governor after the judgement in the Writ Petitions C.W.J.C.
704 No. 1868 of 1983 and C.W.K.C.. NO. 2209
of 1983. This INCONGRUITY cannot be allowed to remain in existence. It may be
that in fact there was no candidate belonging to the unreserved category who
had secured less than 40 per cent marks in the written papers amongst the first
batch of 83 candidates but what is relevant is the standard which was applied
when the said list was prepared. The list must have been prepared without any
doubt in the light of the qualifying marks fixed by the Commission at 38 per
cent for the unreserved category on the basis of which the viva voce test of
all the candidates belonging to both the batches including the appellant had
been held. That standard could not be varied when the next list was prepared.
The High Court has failed to appreciate this aspect of the case.
Having regard to the material before us we
hold that the Commission had fixed 38 per cent as the qualifying marks for the
unreserved category and had not subsequently altered it. Admittedly the two
candidates whose names are shown against Serial Nos. 36 and 37 had secured 415
marks in the aggregate and the candidate shown against Serial No. 38 had
secured 413 marks while the appellant had SECURED 416 marks.
The name of the appellant should have,
therefore, been included in the list submitted by the Commission to the
Government under rule 19 by placing it above the name of the candidate at
Serial No. 36. By not doing so the Commission had violated the Rules and also
Articles 14 and 16 of the Constitution.
The Judgments of the High Court is,
therefore, liable to be set aside and we accordingly set it aside. We direct
the Commission, to submit to the Government a revised list showing the name of
the appellant above Serial No. 36 and we further direct the State Government to
consider the case of the appellant for appointment as Munsiff under rule 19 of
the Rules as if his name had been shown above the candidate whose name is shown
against Serial No.36. On his appointment, the appellant shall be placed above
the candidate shown against Serial No. 36 in the seniority list and he shall be
given all increments etc. as if he had been appointment on the date on which the
candidate at Serial No. 36 was appointed.
The appeal is accordingly allowed. The
respondents 1 and 2 are directed to comply with the above directions within one
month. The appellant is entitled to the costs which we quantify at Rs. 3,000.
M.L.A.
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