LexPRAKASH CHANDRA AGARWAL versus STATE OF BIHAR AND ORS.
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693 PRAKASH CHANDRA AGAllWAL A v. STATE OF BIHAR AND ORS. AUGUST 26, 1985 [E.S. VENKATARAMIAH AND R.B. MISRA, JJ. J B 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 C obtaining 38.8% marks called for interview but not appointed - Whether juatified. The Bihar Civil Service (Judicial Branch) (Recruitment) 'Rules, 1955 vests the Bihar Public Service Comnission by clsuse (a) of Rule 15 the power to fix the qualifying marks iD any or D all the subjects at the written examination for the posts of Munsiffs iD the Bihar Judicial Service but before doing so the Callllission has to consult the High Court. Rule l7 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 eligi - ble for the , . viva voce test, while under rule 19 the marks obtsined at the viva voce test are to be added to the marks E obtained at the written examination.· The appellant appeared at .the 19th Competitive Judicial Service Examination and obtained iD 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 F · instance, 83 candidates were appointed as Munsiffs •. Later on,. the commission sul:mitted another list of 38 candidates to the Govern- ment for being appointed as Munsiffs, but it did not include the name of the appellant even tl:\ough it had included at Serial Nos. 36, 37 and 38 of the names of cendidates who had secured lower marks than what the , ·appellant had obtained. Aggrieved by the G non-incluaion of his name in the list of successful candidates; he filei a writ petition in the High Court which was dismissed. The appellant contended , in his appeal before the Supreme Court that the Commission had in exercise of its discretion fixed 38 per cent marks in the written papers as the qualifying marks H 694 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R. A Wider Rule 15(a) after consultation with the High Court and the ~ion of his name from the list of succesaful candidates prepared under Bule 19 was, therefore, contrary to the Bules. The respondent, however, argued that the name of the appellant was not Included in the list of succeaaful candidates prepared Wider Bule 19 on the ground, that he had obtained less than 40 per cent B marks in the written papers which were the qualifying marks fixed under Rule 15 (a). Allowing the appeal, BILD: l. The entire approach adopted by the High Court is wrong. The High Court should have first decidecl the question c whether the Coomlasion had fixed 40 per ~t marks 88 qualifying marks or 38% 88 it is cl efmed by the appellat and tbeD it should have proceecled to decide whether the ll8llle of the appellat has been properly excluded froa the liat prepared under Bule 19 of the Rules or not. It was in error in holding that the Commiasion had fixed the qualifying marks at 40 per cent merely because it had not flu: I nded the nsmes of any candidates who had secured leas o than 40 per cent qualifying marks in the list prepared Wider rule 19. Such non-inclusion by itself and without more does not amount to a decision made by the Comnission. The Commission did not actually plead that it had made any such fresh determination. It appears to be a new case made out by the High Court to support the action of the Comission-which was contrary to its own deci- E sion fixing the qualifying urks at 38 per cent. It may be that, in fact, · thei;e 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 waa prepared. That list lllWlt have been prepared without any doubt F in the light of the qualifying marks fixed by the Commission at 38 per cent for the unreserved category on the bssis 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 V88 prepared. The High Court hss failed to appreciate this 88pect of the case. G
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