Utpal Kant vs The State Of Bihar
2021 Latest Caselaw 4227 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.10649 of 2021
     ======================================================

1. Utpal Kant Son of Kaushal Kumar Pathak Resident of Babhan Toli Gali, Sampatchak, P.s.- Sultanganj, District- Patna (applied as EWS category)

2. Abhaydeep Vishwakarma S/o Vishun Ram Vishwakarma R/o and P.s.-

Banvirpur, District- Azamgarh, Uttar Pradesh (General Category)

3. Avinash Kumar Pandey S/o Krishn Kant Pandey R/o Dahiyawan Brahman Toli, P.s.- Mahmood Chowk, District- Chapra, Bihar (EWS category)

4. Saima Khan Daughter of Azhar Husain Resident of Nijampur, P.s.- Gomti Nagar, District- Lucknow, Uttar Pradesh (applied as General category)

5. Sujeet Kumar S/o Virendra Kumar R/o Village- Gandhar, P.o.- Bandhuganj, P.s.- Ghosi, District- Jehanabad, Bihar (EWS category)

6. Mukesh Kumar Son of Paras Nath R/o Village and Post- Dhaurahara, P.s.-

Chaubeypur, District- Varanasi (General Category)

7. Inamul Haq S/o Alimuddin R/o Moh. Qila, Dr. Sanawar wali Gali, P.s.-

Deoband, District- Saharanpur, Uttar Pradesh (General Category)

8. Nishant Kumar S/o Baidya Nath Sah R/o Village and Post and P.s.- Sursand, District- Sitamarhi (Bihar)

9. Deeksha Shukla D/o Shatruaghna Prasad Shukla R/o Village- 25C, Shahjahanpur Ayodhya, P.s.- Ranopali, District- Ayodhya, Uttar Pradesh (General Category)

10. Alka Bharti D/o Om prakash R/o Village and Post- Kamhariya Bujurg, P.s.-

Kolhui Bazar, District- Maharajganj, Uttar Pradesh (General Category)

11. Ashish Tripathi S/o Durga Prasad Tripathi R/o Pipra Post and P.s.- Baurbyas, District- Sant Kabir Nagar, Uttar Pradesh (General Category)

12. Pallavi Lakhera D/o Basant Kumar Lakhera R/o Village- Bamhni Banjar, P.s.- Bamhni Banjar, District- Mandla, Madhya Pradesh (General Category)

13. Siddhartha Srivastava S/o Avinash Srivastava R/o - 01./47, Virat Khand, P.o. and P.s.- Gomti Nagar, District- Lucknow (General Category)

14. Aashi Rizvi D/o Saiyyad Kallan Rizvi R/o Rahul Nagar, Ward no. 17, P.s.-

Nautanwa, District- Maharajganj, Uttar Pradesh (General Category)

15. Abhishek Verma S/o Virendra Kumar R/o - 2/21, Mig Barra 7 Kanpur nagar, P.o. and P.s.- Barra, District- Kanpur Nagar, Uttar Pradesh (General Category)

16. Swetabh Kumar S/o Subhash chandra Sharma R/o Gannipur, Mishra Tola, P.s.- Kazimohammadpur, District- Muzaffarpur, Bihar (General)

17. Mukesh Upadhyay S/o Komal Upadhyay R/o Village and Post- Susuwahi, P.s.- Lanka, district- Varanasi, Uttar Pradesh (General Category)

18. Trisha Rana D/o Sube Singh Rana R/o RZF-14, Street no. 42A, Sadhnagar-

2, Palam Colony, New Delhi, P.s.- Palam, District- South West Delhi (General Category) Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

19. Ritvik Srivastav S/o Virendra Srivastava R/o Gandhi Nagar, Post- Tetari bazar, P.s. and District- Siddharth Nagar, Uttar Pradesh (General Category)

20. Anil Kumar Gupta S/o shri Ganesh Prasad Gupta R/o Village- Dubey Pachamwa, Post and P.s.- Kateya, Distict- Gopalganj, Bihar (EBC Category)

21. Ashwini Kumar S/o Shiva Kumar Lal R/o Village- Bankat, Post and P.s.-

Panwara, District- Jaunpur, Uttar Pradesh (General Category)

22. Ashit Jayswal S/o Rajendra Kumar R/o Ratansenpur, Harisenganj, P.s.- Mau Aima, District- Prayagraj, Uttar Pradesh (General Category)

23. Prabhakar Tripathi S/o Umesh Prasad Tirpathi R/o Village- Tiwaripur, P.s.-

Belghat, District- Gorakhpur, Uttar Pradesh (General Category)

24. Prince Dikshit S/o Tapshi Dikshit R/o At Raghunandanpur, P.s.- Phulwaria, District- Gopalganj (Bihar)

25. Sweta Verma W/o Vikash Kumar srivastava, R/o At New Gopalpur (Old ITO Road), D. K.D. Singh Lane, P.s.- Motihari, district- East Champaran, Bihar

26. Mahindra Kumar Singh S/o Shio Mangal Singh R/o Village- Mothi Post-

Rajeyan , Police Station- Piro, District- Bhojpur, State- Bihar, Pin-802159

27. Neeraj Kumar Prajapati S/o Rampal R/o Plot No. - Plot No. 23, Gomti Nagar, P.s.- Khargapur, District- Lucknow, Uttar Pradesh (General )

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna

2. The Principal Secretary Home Department (Directorate of Prosecution), Government of Bihar, Patna

3. The Principal Secretary, General Administrative and Reforms Department, Government of Bihar, patna

4. The Bihar Public Service Commission, through its Chairman, At- 15, Jawaharlal Nehru Marg, Bailey Road, Patna, Bihar

5. The Chairman, Bihar Public Service Commission, At- 15, Jawaharlal Nehru Marg, Bailey Road, Patna, Bihar

6. The Joint Secretary cum Examination Controller, Bihar Public Service Commission, At- 15, Jawaharlal Nehru Marg, Bailey Road, Patna, Bihar

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 10647 of 2021 ======================================================

1. Bagesh Kumar Srivastava S/o Sachchda Nand Srivastava R/o Anand Nagar Kancawa, Chitaipur, Varanasi, Uttar Pradesh- 221106. (Applied as General Category).

2. Raghvendra Pandey S/o Dadan Pandey R/o N 1/19 Nagawa, Near Dalmiya Koti, Varanasi, Hindu Vishwavidhyalaya, Uttar Pradesh 221005 (Applied as General Category).

3. Vishnu Priya D/o Srinath Modanval R/o Ranibazar, Rajatalab, Varanasi, Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

Uttar Pradesh 221311 (General Category).

4. Ashutosh Chand S/o Sri Dharam Chand R/o Narrey, Rajgharh, Gorakhpur, Uttar Pradesh 273411. (Gen. Category).

5. Adarsh Pratap Rao S/o Late Munni Rao R/o Kondwaliya Babu Rai, Bajaratar Mahuawa, Deoria, Uttar Pradesh 272208 (Applied as General Category).

... ... Petitioner/s Versus

1. The State of Bihar Through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary Home Department (Directorate of Prosecution), Government of Bihar, Patna.

3. The Principal Secretary General Administrative and Reforms Department, Government of Bihar, Patna.

4. The Bihar Public Service Commission Through its Chairman, At- 15, Jawaharlal Nehru Marg, Bailey Road, Patna, Bihar.

5. The Chairman Bihar Public Service Commission, At- 15, Jawaharlal Nehru Marg, Bailey Road, Patna, Bihar.

6. The Joint Secretary cum Examination Controller Bihar Public Service Commission, through, At- 15, Jawaharlal Nehru Marg, Bailey Road, Patna, Bihar.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 12134 of 2021 ======================================================

1. Dilshad Ahamed S/o Asgar R/o 199/2, Rampur Road, Mahigran, Sapna Talkij, Roorkee, Haridwar, Uttarakhand- 247667

2. Gulsher Ali S/o Rashid R/o House No.- 539, Mohalla Jhojhagan, Pur Kazi Rurai, Muzaffarnagar, U.P. 251327.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.

2. The Principal Secretary, Home Department (Directorate of Prosecution), Government of Bihar, Patna.

3. The Principal Secretary, General Administrative and Reforms Department, Government of Bihar, Patna.

4. The Bihar Public Service Commission through its Chairman, At- 15, Jawaharlal Nehru Marg, Bailey Road, Patna, Bihar.

5. The Chairman, Bihar Public Service Commission, At- 15, Jawaharlal Nehru Marg, Bailey Road, Patna, Bihar.

6. The Joint Secretary cum Examination Controller, Bihar Public Service Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

Commission, At- 15, Jawaharlal Nehru Marg, Bailey Road, Patna, Bihar.

... ... Respondent/s ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 10649 of 2021) For the Petitioners : Mr. Rupesh Kumar For the Respondent BPSC: Mr. Lalit Kishore, Senior Advocate with : Mr. Satyabir Bharti For the Respondent State : Mr. Saroj Kumar Sharma, AC to AAG-3 (In Civil Writ Jurisdiction Case No. 10647 of 2021) For the Petitioners : Mr. Rupesh Kumar For the Respondent BPSC: Mr. Lalit Kishore, Senior Advocate with : Mr. Satyabir Bharti For the Respondent State : Mr. Md.N.H. Khan (SC 1) (In Civil Writ Jurisdiction Case No. 12134 of 2021) For the Petitioners : Mr. Rupesh Kumar For the Respondent BPSC: Mr. Lalit Kishore, Senior Advocate with : Mr. Satyabir Bharti For the Respondent State : Mr. P.K. Verma (AAG 3) ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 23-08-2021

This matter has been taken up for hearing online because

of COVID-19 pandemic restrictions.

2. All these applications have been heard together, as

they involve same issue with the consent of parties.

3. Heard Mr. Rupesh Kumar, learned counsel appearing

on behalf of the petitioners. Mr. Lalit Kishore, learned Senior

counsel appearing on behalf of the Bihar Public Service

Commission and learned counsel appearing on behalf of the State.

4. Mr. Rupesh Kumar, learned counsel for the

petitioners, through whom these three applications have been filed

states that the petitioners shall confine their challenge to the Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

impugned result of the preliminary test published by the Bihar

Public Service Commission (in short, BPSC) on the sole ground

that B.P.S.C. could not have prescribed any minimum qualifying

marks for the said preliminary test in the absence of any clear

stipulation in this regard in the advertisement.

5. The B.P.S.C. came out with an advertisement no. 01

of 2020 inviting applications for 553 posts of Assistant

Prosecution Officer (in short APO). The scheme of the process of

selection as disclosed in the advertisement, in tune with the

statutory rules governing the cadre, prescribed three tier system,

viz., a preliminary test, a written examination and an interview.

Clause-5 of the advertisement laid down in detail, the procedure

for selection. A copy of the advertisement has been brought on

record by way of Annexure-1 to the writ application. The

preliminary test, according to the advertisement, was to be held of

two papers namely General Studies and Law. 100 marks was

allocated for General Studies and 150 marks for the subject of

Law. It was indicated that the marks scored in the preliminary test

shall not be added for the purpose of preparation of final merit list

for appointment. Only those who qualify in the preliminary test are

eligible to appear in the main examination, as per the

advertisement. It is evident from the advertisement that the final Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

merit list for appointment is to be prepared on the basis of marks

scored in the written test and the interview.

6. After the headings 'main examination' and 'interview'

of clause 5, four notes have been added in the advertisement. Note

1 prescribes that only such candidates shall be invited for

interview, who score minimum marks in the main examination as

prescribed in the resolution issued vide Memo No. 2374 dated

16.07.2007 and letter no. 6705 dated 01.10.2008 for different

categories of candidates. Note 2 prescribes that 2.5 times the

number of vacancy shall be called for interview on the basis of

written examination, having due regard to the prescriptions in the

said Memo No. 2374 dated 16.07.2007 (supra) issued by the

Personnel and Administrative Reforms Department, Government

of Bihar. The Personnel and Administrative Reforms Department,

Government of Bihar has prescribed minimum qualifying marks

for various competitive examination as under:-

"a)- General category-40 percent.

b)- Backward class -36.5 percent.

c)- Backward class annexure-l(EBC)-34 percent.

d)- Scheduled caste, Schedule tribe and women's class-

percent."

Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

7. The petitioners participated in the preliminary test.

The result of the preliminary test came to be published by the

B.P.S.C. on 27.04.2021 declaring 3995 candidates successful,

belonging to various categories. The roll numbers of these

petitioners do not figure in the list of successful candidates.

8. There does not appear to be any dispute rather it is

admitted by the B.P.S.C. that candidates, 10 times the number of

vacancies advertised were required to be invited for the written

examination.

9. Subsequent to holding of preliminary test, the

B.P.S.C. issued certain clarification in relation to some

typographical error in the answer sheets wherein 'full marks 100'

was in place of 150 for the Law paper. Subsequent to publication

of result, the B.P.S.C. came out with another clarification on

28.04.2021, which has been brought on record by way of

Annexure -4 to the writ application. The said clarification refers to

the Personnel and Administrative Reforms Department resolution

dated 16.07.2007 (supra), which prescribes minimum qualifying

marks for any written examination. Referring to the said resolution

of the State Government, the B.P.S.C. has mentioned in the said

clarification dated 28.04.2021 that candidates, 10 times number of

vacancies could not be called for the written examination, as Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

sufficient number of candidates, who secured minimum qualifying

marks as per the resolution dated 16.07.2007(supra) were not

available. The cut-off marks fixed for different categories of

candidates on the basis of preliminary test has been mentioned in

the said clarification dated 28.04.2021.

10. In the aforesaid background the petitioners have

assailed the said part of the decision of the B.P.S.C. mainly on the

ground that there was no stipulation in the advertisement that the

resolution of the State Government dated 16.07.2007(supra) shall

be applicable for preliminary test also. It is the petitioners' case

that though it was specifically prescribed in the advertisement that

the said resolution shall apply for calling candidates for interview

on the basis of main examination but it was intentionally and

rightly so excluded by the B.P.S.C., in relation to the preliminary

test. It is accordingly the petitioners' case that the Commission

cannot be allowed to now to alter the terms of the advertisement

and deviate from the said terms.

11. Mr. Arjun Kumar, learned counsel appearing on

behalf of the petitioners submits that in the absence of any such

stipulation in the advertisement, the B.P.S.C. could not have

subsequently applied the prescription contained in the resolution

dated 16.07.2007(supra) of the Personnel and Administrative Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

Reforms Department, Government of Bihar. He has drawn my

attention to the rules governing the recruitment to the post in

question, which has been brought on record by way of Annexure-

A/1 to the counter affidavit filed on behalf of the B.P.S.C. and has

submitted that the preliminary test is only a screening test which

simply serves the purpose of screening candidates, eligible to

appear in the main written examination. He has contended that in

such circumstance, without specifying clearly in the advertisement

that resolution dated 16.07.2007 (supra) would apply for

preliminary test also, the B.P.S.C. could not have implemented the

same for the purpose of preparation of result of the preliminary

test. He has accordingly submitted that the result published by the

B.P.S.C. of the preliminary test cannot be sustained. He has placed

reliance on a Supreme Court's decision in case of Rahul Dutta. Vs

State of Bihar reported in 2019 (1) PLJR (SC) 622 in support of

his contentions. The said decision in case of Rahul Dutta. Vs

State of Bihar (supra), in the Court's opinion, has no application

in the facts and circumstances of the present case.

12. Mr. Lalit Kishore, learned senior counsel

representing the B.P.S.C has submitted that the resolution of the

Personnel and Administrative Reforms dated 16.07.2021(supra) is

to be uniformly applied for all written examinations and Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

accordingly those who do not score the minimum qualifying marks

in any written examination for selection to a post under the

government, stands disqualified, in terms of the said resolution. It

is his case that though the said resolution dated 16.07.2007(supra)

is not statutory, in view of clear stipulation therein, it automatically

applies to all selection processes even if not specifically mentioned

in the advertisement. He has further submitted that in any event,

those who have been selected are more meritorious than these

petitioners and, therefore, these petitioners do not have the locus

standi to question the correctness of the result of the preliminary

test published by the B.P.S.C. He has further argued that in any

case, the short fall of candidates on application of 1:10 ratio for

inviting candidates for written examination is in relation to various

reserved categories and number of candidates invited for the

written examination against open seats is more than ten times of

the available general seats. He has laid emphasis on the expression

'yogya' in Rule 36 (2) of Bihar Prosecution Manual to contend that

only eligible/qualified candidates could be invited for the written

examination on the basis of preliminary test in terms of resolution

of the Personnel and Administrative Reforms Department,

Government of Bihar.

Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

13. I have perused the pleadings on record and I have

given my anxious consideration to the submission advanced on

behalf of the parties. It is clear from clause 5 of the advertisement

in question that the B.P.S.C. did mention in the note under clause 5

that the said resolution of the Personnel and Administrative

Reforms Department, Government of Bihar dated 16.07.2007

(supra) would apply for candidates to be invited for interview on

the basis of a written examination. On the one hand, the B.P.S.C.

specifically prescribed the said condition for the main written

examination, it did not do so in relation to preliminary test

inasmuch as advertisement does not stipulate that such candidates

who do not qualify in accordance with the resolution of the State

Government date 16.07.2007 (supra) shall not be called for the

main examination. There being no stipulation of the said condition

in the advertisement, for the purpose of preparation of the result of

preliminary test, the B.P.S.C. could not have invoked the

requirement as contained in the resolution dated 16.07.2021

(supra), subsequently. This, in Court's opinion, amounts to

deviation from the terms of the advertisement which cannot be

permitted. The submission by Mr. Lalit Kishore, learned Senior

counsel appearing on behalf of the B.P.S.C. that considering the

nature of the decision of the State Government, as contained in Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

resolution dated 16.07.2007 (supra), the same was required to be

applied even in the absence of such prescription in the

advertisement is not acceptable to this Court for the reason that the

said resolution is not part of the statutory rules governing the

recruitment process in question. Nevertheless, it was open for the

B.P.S.C. to have prescribed such requirement by clearly

mentioning it in the Advertisement, as has been done for the main

written examination. Further, the fact that in the advertisement, the

B.P.S.C. made such stipulation for the main examination and

excluded the same for the preliminary test, the Court is of the

opinion, the same cannot be considered to be unintentional. In any

view of the matter, by not mentioning the said resolution in the

advertisement for the preliminary test and mentioning the same for

the main examination, the B.P.S.C. represented to the aspirants that

the said resolution was not applicable for the purpose of

preliminary test. The said resolution, deviating from the terms of

advertisement, could not have been subsequently applied.

14. For the aforesaid reasons these applications succeed.

These writ applications are allowed. Consequently, the respondent

B.P.S.C. is directed to publish a revised result of the preliminary

test of successful candidates, without invoking the resolution of

the Personnel and Administrative Reforms Department, Patna High Court CWJC No.10649 of 2021 dt.23-08-2021

Government of Bihar issued vide Memo No. 2374 dated

16.07.2007, which was not mentioned in the advertisement for

preliminary test. The B.P.S.C. shall thereafter proceed accordingly,

in the matter of the selection process in question.

(Chakradhari Sharan Singh, J) AKASH/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          23.08.2021.
Transmission Date       N/A