REPORTABLE   IN THE SUPREME COURT OF INDIA

                        ORIGINAL JURISDICTION

WRIT PETITION (CIVIL)  NO(S). 71/2019

RAHUL DUTTA & ORS.                                 PETITIONER(S)

                               VERSUS

THE STATE OF BIHAR & ORS.                          RESPONDENT(S)   

WITH

W.P.(C) No. 92/2019

W.P.(C) No. 158/2019

Writ Petition (c) ………………………….. (Diary No.5352/2019)

       J U D G M E N T

1. Writ Petition ….(Diary No.5352/2019) is taken on Board.

2. In  the  writ  petitions  filed  under  Article  32  of  the

Constitution of India, with respect to the examination of Civil

Judge (Junior Division) the candidates are aggrieved by action that

has been taken to call 10% of the candidates who have appeared in

the  preliminary  examination  would  qualify  for  the  final

examination.

3. Their main submission is that as per the decision of this

Court  in  Malik  Mazhar  Sultan  (3)  and  Another v.  Uttar  Pradesh

Public Service Commission and Others, (2008) 17 SCC 703, vacancies

have to be filled up by holding preliminary examination and then

final  written  examination  followed  by  viva  voce.   As  per  the

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directions issued by this Court, for the purposes of Civil Judge

(Junior Division) by direct recruitment, declaration of the result

of the preliminary written examination for calling candidates for

final written examination has to be in the ratio of 1:10 of the

available vacancies to the successful candidates.

4. Rule  5A  of  The  Bihar  Civil  Service  (Judicial  Branch)

(Recruitment) Rules, 1955 (hereinafter referred to as ‘the Rules’)

has  been  inserted  vide  Notification  dated  28.12.2016,  same  is

extracted hereunder:-

“5A. (1) The Commission may take a Preliminary Test  in  the  event  of  the  number  of  eligible candidates  to  be  admitted  to  the  written examination being, in its judgment, inordinately large.

(2) The Preliminary test shall comprise two papers – Paper I of General Studies carrying 100 marks, and Paper II of Law carrying 150 marks. The papers will consist of objective questions of multiple choice, one being the correct answer.  OMR Answer Sheets shall be used and evaluated by computer  in  the  Commission’s  premises.   The Syllabi for the two papers shall be the same as prescribed  for  General  Knowledge  and  General Science  and  the  Law  Papers  in  the  written examination, respectively.

(3)  Eligible  candidates  for  the  written examination shall be selected on the basis of the result of the Preliminary Test, to the extent of 10% of the total number of appeared candidates, rounded  off  to  the  nearest  hundred;  and  all candidates  obtaining  equal  marks  as  the  last candidate’s shall also qualify for the written examination;

Provided  that  in  the  event  of  candidates from  the  reserved  categories,  other  than  the General  category,  falling  short  of  the percentages  fixed  for  them  in  the  State Government Services under the relevant Act vis-a- vis the total number of successful candidates in

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the  Preliminary  Test,  so  many  candidates  from those categories shall be additionally included, to  the  extent  of  the  deficit,  as  per  their respective merit, in the list of the successful candidates to take the written examination.”

5. No doubt about it that Rule 5A(3) clearly provides that only

10% of the total number of candidates appeared have to be called

for final written examination as per the rounding off provided in

rule 5A(3) of the Rules.

6. After hearing learned counsel for the parties at length, we

are of the considered opinion that the aforesaid Rule 5A is in

violation to what has been laid down by this Court in Malik Mazhar

Sultan (supra).  In which this Court has observed, on the basis of

the proposal which was not objected to.  This Court has specified

the ratio of calling the candidates for final examination after

preliminary examination for Civil Judge (Junior Division) by direct

recruitment as under:-

“D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment.

Sl.  No.

Description Date

7. Declaration  of  result  of  preliminary written examination  a]  Result  may  be  put  on  the  website  and also published in the Newspaper  b] The ratio of 1 : 10 of the available vacancies to the successful candidates be maintained

15th June

8. These directions would not be applicable to the judiciary in the Sikkim High Court in view of a very small cadre of judiciary in that State.”

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7. The fixation of 10% of the total number of appeared candidates

in  preliminary  examination  to  be  called  for  final  written

examination is otherwise also arbitrary and unreasonable as the

same substantially restricts the  number of candidates to stake

their claim in the final examination.  By virtue of the operation

of the Rule for 349 available seats total number of candidates

being called for final written examination of General Category is

902 and for reserved categories it is 198 and the total number is

1100.  The number of seats reserved out of 349 is 50% on rounded

off  comes  approximately  to  174  seats.   The  number  of  reserved

category  candidates  being  called  to  stake  their  claim  in  their

final examination is nearly 198 only.  The ratio approximately is

1:1 whereas it has to be 1:10.  Whereas in unreserved category the

total number of candidates called by operation of the aforesaid

Rule  5A(3)  is  902.   For  approximately  175  seats  reserved  for

General Category the number of candidates which are refixed to be

called is in the ratio of 1:10 to the number of vacancies would be

1750,  so also for reserved category. Thus, we are of the opinion

that  the  aforesaid  Rule  is  clearly  arbitrary  and  violates  the

decision of this Court in Malik Mazhar Sultan (supra) on restrict

competitive field unreasonably.   No useful purpose is going to be

served by restricting the number of candidates for final written

examination.

8. Apart from that there is yet another glaring error in the Rule

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that no minimum passing marks have been prescribed in preliminary

examination.   The  ratio  of  1:10  is  only  applicable  when  these

number of successful candidates are available and obtaining of the

minimum  passing  marks  in  preliminary  examination  should  be

necessary, out of the successful candidates available out of them

in the ratio of 1:10 are required to be called for final written

examination.  The candidates with minimum passing marks only can be

permitted to stake their claim in the final examination. It is

assured by the all concerned stakeholders i.e. State of Bihar, High

Court of Patna as well as the Bihar Public Service Commission that

they would ensure the minimum passing marks are fixed under the

Rules for preliminary examination separately for general as well as

for reserved category in a reasonable manner.  Let that be done for

future examination.  However, for the examination in question, it

would not be appropriate to fix the marks now after examination is

over.

9. For  final  written  examination  in  case  10%  candidates  are

called  vis-a-vis  to  the  available  vacancies  the  cut  off  marks

percentage-wise for different categories, as tentatively calculated

by the Bihar Public Service Commissions is as under:-

“No. of Candidates proposed to be qualified for the Main Examination  according  to  10%  of  the  total  number  of appeared candidates rounded off to nearest 100 (without 5% less rider):

Category % of Reservation

No. of Male Candidates

No. of Female Candidates

Total No. of Candidates

Unreserved (01) 50% 648  Cut Off Marks: 171

(68.95%)

332  Cut Off Marks: 163

(65.72%)

980

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SC (02) 16% 191  Cut Off Marks: 124

(50.00%)

102  Cut Off Marks: 103

(41.53%)

293

ST (03) 1% 12 Cut Off Marks: 135

(54.43)

06 Cut Off Marks: 119

(47.98%)

18

EBC (04) 21% 251  Cut Off Marks: 129

(52.01%)

125 Cut Off Marks: 109

(43.95%)

376

BC (05) 12% 99 Cut Off Marks: 154

(62.09%)

55 Cut Off Marks: 144

(58.06%)

154

Orthopaedically  Handicapped (OH)

1% out of total

vacancies

18 04 22  Cut Off Marks: 147 (59.27%)

Total – 1219 624 1843

10. As apparent from the above table, cut off marks are not going

very low obviously the data provided is provisional one and is

subject  to  corrections  of  error,  if  any,  in  calculating  the

percentage or the number of candidates in the category of male or

female etc.  The cut off is quite reasonable and the aforesaid

deficiency in Rule of not prescribing the passing marks in the

preliminary  examination  would  not  cause  any  invalidity  in  the

examination already held in any manner whatsoever.  However, this

fixation of cut off marks by the Bihar Public Service Commission

and  permission  granted  by  this  Court  to  call  the  aforesaid

candidates would not be treated as deciding the question minimum

passing marks for preliminary examination which have to be fixed by

the State Government under the Rules.

11. In the circumstances, we have no hesitation to strike down the

provision contained in Rule 5A(3) of the Rules.  We place it on

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record that the State of Bihar has also suggested the amendment in

the Rules in the letter dated 15.01.2019 and the same is pending

consideration before the High Court and it has to be placed before

the Full Court on administrative side.  Let the High Court take a

decision in accordance with law on the aforesaid proposal and also

duly considering the decision of this Court in  Malik Mazhar Sultan

(supra).

12. With respect to the prayer made in the writ petition(s), with

respect to providing horizontal reservation to the women candidates

it is being provided.  Thus, the submission raised about providing

horizontal reservation does not survive.

13. In the circumstances, as the examination is scheduled to be

held  on  20.02.2019,  as  Bihar  Public  Service  Commission  has

submitted that now under this order candidates equal to 10 times of

the  vacancies  have  to  be  called,  it  would  take  some  time  in

dispatch  of  roll  numbers,  allotment  of  centre  and  making  other

arrangements.  Let  final  written  examination  be  held  within  six

weeks from today.  In case it is necessary to pray for extension of

time fixed by this Court for final selection, it is open to the

High Court of the State of Bihar to apply for extension of time

before an appropriate Bench.

14. Resultantly, Rule 5A(3) of the Rules is struck down and the

writ petitions are, accordingly, allowed.  We make it clear that we

are not dilating upon the other questions as the High Court is

considering the proposal for amendment in the Rules.

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15. Pending application(s), if any, shall stand disposed of.

...........................J. [ARUN MISHRA]

...........................J. [NAVIN SINHA]

NEW DELHI; FEBRUARY 14, 2019.

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