– CITIZENSHIP STATUS versus THE STATE OF BIHAR & ORS. on 14 February 2019

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

2. In the writ petitions filed under Article 32 of the Constitution ofIndia, 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 examinationwould qualify for the final examination.

3. Their main submission is that as per the decision of this Courtin Malik Mazhar Sultan (3) and Anotherv. Uttar Pradesh Public ServiceCommission and Others, (2008) 17 SCC 703, vacancies have to be filledup by holding preliminary examination and then final written examinationfollowed by viva voce. As per the directions issued by this Court, for thepurposes of Civil Judge (Junior Division) by direct recruitment, declarationof the result of the preliminary written examination for calling candidatesfor final written examination has to be in the ratio of 1:10 of the availablevacancies to the successful candidates.

4. Rule 5A of The Bihar Civil Service (Judicial Branch)(Recruitment) Rules, 1955 (hereinafter referred to as ‘the Rules’) hasbeen inserted vide Notification dated 28.12.2016, same is extractedhereunder:-

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1062 SUPREME COURT REPORTS [2019] 3 S.C.R.

A“5A.(1) The Commission may take a Preliminary Test in theevent of the number of eligible candidates to be admitted to thewritten 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 ofBLaw carrying 150 marks. The papers will consist of objectivequestions of multiple choice, one being the correct answer.OMR Answer Sheets shall be used and evaluated by computer inthe Commission’s premises. The Syllabi for the two papers shallbe the same as prescribed for General Knowledge and GeneralScience and the Law Papers in the written examination,Crespectively.

(3) Eligible candidates for the written examination shallbe selected on the basis of the result of the Preliminary Test, tothe extent of 10% of the total number of appeared candidates,rounded off to the nearest hundred; and all candidates obtainingDequal marks as the last candidate’s shall also qualify for the writtenexamination; Provided that in the event of candidates from thereserved categories, other than the General category, falling shortof the percentages fixed for them in the State Government ServicesEunder the relevant Act vis-a-vis the total number of successfulcandidates in the Preliminary Test, so many candidates from thosecategories shall be additionally included, to the extent of the deficit,as per their respective merit, in the list of the successful candidatesto take the written examination.”

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5. No doubt about it that Rule 5A(3) clearly provides that only10% of the total number of candidates appeared have to be called forfinal 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 areGof the considered opinion that the aforesaid Rule 5A is in violation towhat has been laid down by this Court in Malik Mazhar Sultan (supra).In which this Court has observed, on the basis of the proposal whichwas not objected to. This Court has specified the ratio of calling thecandidates for final examination after preliminary examination for CivilJudge (Junior Division) by direct recruitment as under:-H

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

Sl. DescriptionDateNo.7.Declaration of result of preliminary 15[th] Junewritten 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

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

7. The fixation of 10% of the total number of appeared candidatesin preliminary examination to be called for final written examination isotherwise also arbitrary and unreasonable as the same substantiallyrestricts the number of candidates to stake their claim in the finalexamination. By virtue of the operation of the Rule for 349 availableseats total number of candidates being called for final written examinationof General Category is 902 and for reserved categories it is 198 and thetotal number is 1100. The number of seats reserved out of 349 is 50%on rounded off comes approximately to 174 seats. The number ofreserved category candidates being called to stake their claim in theirfinal examination is nearly 198 only. The ratio approximately is 1:1whereas it has to be 1:10. Whereas in unreserved category the totalnumber of candidates called by operation of the aforesaid Rule 5A(3) is902. For approximately 175 seats reserved for General Category thenumber of candidates which are refixed to be called is in the ratio of1:10 to the number of vacancies would be 1750, so also for reservedcategory. Thus, we are of the opinion that the aforesaid Rule is clearlyarbitrary and violates the decision of this Court in Malik Mazhar Sultan(supra) on restrict competitive field unreasonably. No useful purpose isgoing to be served by restricting the number of candidates for final writtenexamination.

8. Apart from that there is yet another glaring error in the Rulethat no minimum passing marks have been prescribed in preliminaryexamination. The ratio of 1:10 is only applicable when these number of A

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Asuccessful candidates are available and obtaining of the minimum passingmarks in preliminary examination should be necessary, out of thesuccessful candidates available out of them in the ratio of 1:10 are requiredto be called for final written examination. The candidates with minimumpassing marks only can be permitted to stake their claim in the finalexamination. It is assured by the all concerned stakeholders i.e. State ofBBihar, High Court of Patna as well as the Bihar Public ServiceCommission that they would ensure the minimum passing marks arefixed under the Rules for preliminary examination separately for generalas well as for reserved category in a reasonable manner. Let that bedone for future examination. However, for the examination in question,Cit would not be appropriate to fix the marks now after examination isover.

9. For final written examination in case 10% candidates are calledvis-a-vis to the available vacancies the cut off marks percentage-wisefor different categories, as tentatively calculated by the Bihar PublicDService Commissions is as under:- “No. of Candidates proposed to be qualified for the MainExamination according to 10% of the total number of appearedcandidates rounded off to nearest 100 (without 5% less rider):

Category % of No. of Male No. of Female Total No. of EReservationCandidates Candidates Candidates Unreserved (01) 50% 648 332 980 Cut Off Marks: 171 Cut Off Marks: 163 (68.95%) (65.72%) SC (02)16%191 102 293Cut Off Marks: 124 Cut Off Marks: 103 (50.00%) (41.53%) FST (03) 1% 12 06 18 Cut Off Marks: 135 Cut Off Marks: 119 (54.43) (47.98%) EBC (04) 21% 251 125 376 Cut Off Marks: 129 Cut Off Marks: 109 (52.01%) (43.95%) GBC (05) 12% 99 55 154 Cut Off Marks: 154 Cut Off Marks: 144 (62.09%)(58.06%)Orthopaedically 1% out of 18 04 22 Handicapped (OH)total Cut Off Marks: vacancies 147 (59.27%) Total–12196241843H

10. As apparent from the above table, cut off marks are not goingvery low obviously the data provided is provisional one and is subject tocorrections of error, if any, in calculating the percentage or the numberof candidates in the category of male or female etc. The cut off is quitereasonable and the aforesaid deficiency in Rule of not prescribing thepassing marks in the preliminary examination would not cause anyinvalidity in the examination already held in any manner whatsoever.However, this fixation of cut off marks by the Bihar Public ServiceCommission and permission granted by this Court to call the aforesaidcandidates would not be treated as deciding the question minimum passingmarks for preliminary examination which have to be fixed by the StateGovernment under the Rules.

11. In the circumstances, we have no hesitation to strike downthe provision contained in Rule 5A(3) of the Rules. We place it onrecord that the State of Bihar has also suggested the amendment in theRules in the letter dated 15.01.2019 and the same is pending considerationbefore the High Court and it has to be placed before the Full Court onadministrative side. Let the High Court take a decision in accordancewith law on the aforesaid proposal and also duly considering the decisionof this Court in Malik Mazhar Sultan (supra).

12. With respect to the prayer made in the writ petition(s), withrespect to providing horizontal reservation to the women candidates it isbeing provided. Thus, the submission raised about providing horizontalreservation does not survive.

13. In the circumstances, as the examination is scheduled to beheld on 20.02.2019, as Bihar Public Service Commission has submittedthat now under this order candidates equal to 10 times of the vacancieshave to be called, it would take some time in dispatch of roll numbers,allotment of centre and making other arrangements. Let final writtenexamination be held within six weeks from today. In case it is necessaryto pray for extension of time fixed by this Court for final selection, it isopen to the High Court of the State of Bihar to apply for extension oftime before an appropriate Bench.

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A14. Resultantly, Rule 5A(3) of the Rules is struck down and thewrit petitions are, accordingly, allowed. We make it clear that we arenot dilating upon the other questions as the High Court is considering theproposal for amendment in the Rules.

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

Kalpana K. TripathyPetitions allowed.

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