Manoj Kumar Singh vs The State Of Bihar
2022 Latest Caselaw 2777 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.7963 of 2021
     ======================================================

1. Manoj Kumar Singh Son of Sri Raj Narayan Singh Resident of Road No. 24K, Shivshakti Colony, Keshri Nagar, Rajeev Nagar, P.s.- Rajeev Nagar, District- Patna, Bihar- 800024

2. Jitendra Kumar Son of Sri Jagdish Singh Resident of Village- Kasiona, P.o.

and P.s.- Rajnagar, District- Madhubani, Bihar- 847235

3. Suwesh Kumar Shukla @ Suwesh Shukla Son of Dinesh Shukla Resident of village- Fathpur, Ward no. 34, P.s.-Siwan Sadar, District- Siwan, Bihar- 841226 ... ... Petitioners Versus

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

2. The Principal Secretary, Science and Technology Department, Government of Bihar, Patna

3. The Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, Bailey Road, Patna-800001

4. The Chairman, Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, Bailey Road, Patna-800001

5. The Secretary, Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, Bailey Road, Patna-800001

6. The Controller of Examination of Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, Bailey Road, Patna-800001 ... ... Respondents ====================================================== Appearance :

For the Petitioners : Mr. Kumar Kaushik, Advocate For the Respondent State: Mr. P.N.Shahi, AAG-6 Mr. Mritunjay Kumar, AC to AAG-6 For the BPSC : Mr. Lalit Kishore, Senior Advocate Mr. Sanjay Pandey, Advocate Mr. Nishant Kumar Jha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH C.A.V. JUDGMENT Date : 11-05-2022

The petitioners are applicants against Advertisements

No. 51/2020, 52/2020 and 54/2020 issued by the Bihar Public

Service Commission ('Commission' for short) for filling up the

posts of Assistant Professors in the Government Engineering Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

Colleges in the subjects of Mechanical Engineering, Computer

Science and Engineering and Chemistry, respectively. The said

selection process is governed by the Bihar Engineering Education

Service Rules, 2020. The petitioners have served as Assistant

Professors for some time in different Government Engineering

Colleges on contractual basis, as disclosed in paragraph 7 of the

writ petition. It is not in dispute that the Rules extend weightage to

the candidates working on contract basis on the post of Assistant

Professor under Department of Science and Technology and

possessing minimum eligibility criteria @ five marks per year

(maximum 25 marks). The selection process is divided in four

parts, namely: -

       (i)      Academic          record          and -   Weightage 20 marks
                research performance


       (ii)     Evaluation         of      domain -       Weightage 40 marks
                knowledge         and     teaching
                skill       through         written
                examination (objective)


       (iii)    Interview                             -   Weightage 15 marks

       (iv)     Assistant          Professors -           Weightage   maximum
                working on contractual                    25 marks
                basis, as noted above.

Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

2. The petitioners are aggrieved by Note 4 under

paragraph 5 of the aforesaid advertisements issued by the

Commission, which stipulates that the candidates shall be

shortlisted for interview on the basis of the written examination.

The said stipulation in Note 4 is under challenge in the present writ

application on the ground that the same is in breach of the

statutory rules.

3. Heard Mr. Kumar Kaushik, learned counsel appearing

on behalf of the petitioners, Mr. Pushkar Narain Shahi, learned

AAG-6 assisted by Mr. Mritunjay Kumar, learned AC for the

respondent State and Mr. Lalit Kishore, learned Senior Counsel

assisted by Mr. Sanjay Pandey, learned Advocate, for the

respondent Commission.

4. Counter affidavits and supplementary counter

affidavits have been filed on behalf of the respondents.

5. The sole issue for determination in the present writ

application is as to whether aforesaid Note 4 mentioned under

paragraph 5 of the advertisement is violative of the provisions

under the Rules.

6. The prescribed qualification for direct appointment to

the post of Assistant Professor in the Bihar Engineering Education Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

Service as laid down in Table-1 of Appendix-1 of the Rules is as

under: -

                                     "B.E./B.Tech./B.S./B.Sc.(Engg.)            and
                         M.E./M.Tech/M.S          or   integrated     M.Tech      in

relevant branch with First Class or Equivalent in any one of the degrees."

No minimum experience is prescribed for the said post.

7. The weightage scheme for direct appointment to the

post of Assistant Professor in Bihar Engineering Education Service

has been prescribed in Table-2 of Appendix-1, which is as under: -

       Cadre         Academic Record         Evaluation of     Intervie    For
       Post          and      Research       Domain-           w           Assistant
                     Performance             knowledge         (weighta    Professor
                     (weightage-20           and Teaching      ge     15   engaged on
                     marks)                  Skill through     marks)      Contract
                                             written                       Basis
                                             examination                   (weightage
                                             (objective)                   25 marks)
                                             (weightage
                                             40 marks)
       Assistant (a) maximum 10              (a)         For               Weightage
       Professor (10%             of         Science and                   to
                 percentage marks            Humanities:-                  candidates
                 obtained         in         The syllabus                  working on
                 M.Tech/M.E/M.S/             of        core                contract
                 M.Sc./M.A.       in         Subject      of               basis    on
                 relevant                    National                      the post of
                 branch/subject).            Eligibility                   Assistant
                                             Text (NET)                    Professor
                                             conducted by                  under
                                             University                    Departmen
                                             Grants                        t         of
                                             Commission                    Science
                                             (UGC) will                    and
                                             be                            Technolog
                                             applicable.                   y       and

Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

(b) Maximum 05 possessing (5 % of minimum percentage marks (b) For eligibility obtained in Engineering criteria @ B.Tech/B.E/B.S/B steam-The 05 marks .Sc.(Engg.)/B.Sc. syllabus of per year (Hons)/B.A. Graduate (maximum (Hons). Aptitude Test -25 marks) in Engineering (GATE) will be applicable.

Evidently, the total weightage is 100 marks.

8. It is the petitioners' case that the said Note-4 has the

effect of making the Rule providing weightage of 25 marks otiose

and redundant inasmuch as no weightage for experience can be

provided to the candidates while shortlisting them for interview.

The candidates working on contract basis are essentially required

to cross the first stage of selection process strictly on the basis of

merit. It is their case that it was conscious decision of the State

Government, while making provision for giving weightage to the

candidates having experience work on contract basis, which stood

literally negated by introducing Note-4 under paragraph 5 of the

advertisement.

9. In the counter affidavit/supplementary counter

affidavit filed on behalf of the Commission, it has been stated that Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

on the basis of requisition sent by the General Administration

Department, Government of Bihar, the advertisements in question

were issued after approval of the draft advertisement by the

concerned Department. It has been stated that after considering the

requisition for selection and examination of recruitment Rules, the

Commission had sought certain clarification on the point whether

the aspirants should be shortlisted for interview on the basis of

their performance in the written examination or such shortlisting

should be done on the basis of their academic records, experience

and performance in the written examination taken together. The

Personnel and Administrative Reforms Department in turn

clarified through its letter dated 18.06.2020 that the candidates

would be shortlisted for interview only on the basis of their

respective performance in the written examination. It has further

been stated that the Commission has its own Rules and procedure,

viz., Bihar Public Service Commission Rules of Procedure, 1996,

which envisages that the number of candidates qualified for

interview will be consistent with the number prescribed by the

Government in a particular service and with the minimum

qualifying marks fixed by the Government for candidates of

different reserved categories. Further, in respect of the service Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

where there is no guideline prescribing the number of candidates

to be qualified for interview, the Commission is to take a decision.

10. In the counter affidavit filed on behalf of the State of

Bihar, it has been stated that it is evident from Appendix-1, Table-

2 of the Rules that the evaluation of the "Domain Knowledge and

Teaching Skill" is to be done through written examination. There

being a provision for written examination under the Rules, it is not

possible to shortlist the candidates for interview without the

written examination. It has been asserted that those, who are

shortlisted after written examination, will get weightage of

experience of working on contract basis in accordance with the

Rules for arriving at a final merit list.

11. Mr. Kumar Kaushik, learned counsel for the

petitioner has submitted that the statutory provision for weightage

of marks for the services rendered on contract basis is based on

conscious decision of the State Government with a definite

purpose to achieve. He has contended that if impugned Note-4

under paragraph 5 of the advertisement is permitted to operate, the

provision for granting weightage to the candidates having working

experience on contractual basis will stand obliterated as the

experienced candidates, who do not find their place in the merit

list based on written test shall not get any benefit of their Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

experience in the process of selection. He has submitted that

shortlisting of candidates for interview should be based on

cumulative score of the aspirants against academic record,

evaluation of the domain knowledge and teaching skills (written

examination) and experience on contractual basis. He has

submitted that in the absence of any clear stipulation in the Rules

as to on what basis shortlisting of candidates for interview should

be done, the respondents ought to have taken a reasonable

approach keeping in mind the purpose behind the legislative policy

under the Rules to give weightage for experience gained while

working on contractual basis in the Government Engineering

Colleges. He has placed reliance on Supreme Court's decisions in

case of B. Ramakichenin v. Union of India, reported in (2008) 1

SCC 362, Government of Andhra Pradesh v. P. Dilip Kumar,

reported in(1993) 2 SCC 310, Amlan Jyoti Borooah v. State of

Assam, reported in(2009) 3 SCC 227andAshish Kumar v. State of

U.P., reported in (2018) 3 SCC 55. Reliance has also been placed

on following unreported decisions of this Court: -

(i) Judgment dated 10.04.2015 rendered by a Division

Bench of this Court in C.W.J.C. No. 855 of 2015 (Dr. Dharmbir

Kumar and Others vs. The State of Bihar and Another) and Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

(ii) Judgment dated 24.08.2020 rendered by a Division

Bench of this Court in C.W.J.C. No. 8225 of 2015 (Shailesh

Chandra Gupta vs. The State of Bihar and Another and another

analogous matter).

12. Mr. Lalit Kishore, learned Senior Counsel

representing the respondent Commission has submitted that the

decision to invite candidates for interview on the basis of written

examination cannot be said to be arbitrary or unreasonable. The

said process does not violate any statutory provision inasmuch as it

does not deny the candidates having experience of working on

contractual basis as they are entitled to get due weightage in

accordance with the Rules at the time of preparation of the final

merit list. He has submitted that in any view of the matter, under

the Rules of Procedure, 1996 of the Commission, the Commission

is empowered to take a decision as to the number of candidates to

be called for interview in the absence of clear stipulation in the

recruitment rules. Reliance has been placed by him on Supreme

Court's decision in case of State of U.P. v. Rafiquddin, reported in

1987 Supp SCC 401 to submit that the Commission is an

independent expert body and it has to act in an independent

manner in making selection on the prescribed norms. Relying on

the said decision, he has argued that the Commission may consult Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

the State Government in prescribing the norms for judging the

suitability of the candidates. Relying on the Supreme Court's

decision in case of Arunachal Pradesh Public Service

Commission v. Tage Habung, reported in (2013) 7 SCC 737, he

has argued that there is no illegality in the impugned procedure of

inviting candidates for interview shortlisted on the basis of written

examination.

13. Mr. Pushkar Narain Shahi, learned AAG-6 has

submitted that Note-4 under paragraph 5 of the advertisement no

way violates the statutory provisions under the Rules.

14. As has been noted above, the sole question for

consideration in the present writ application is as to whether Note-

4 below paragraph 5 of the advertisement can be said to breaching

any statutory provision under the Rules.

15. In order to deal with the issue, I need to discuss first,

the relevant statutory provisions laying down the prescribed

qualification and experience for direct appointment to the post of

Assistant Professor in Bihar Engineering Education Service as

available in Table- 1 of Appendix-1 of the Rules and the weightage

scheme in Table-2 of the said appendix. Both the provisions have

been quoted hereinabove. For the post of Assistant Professor, no

experience is needed for eligibility, as can be seen from Table-1 of Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

Appendix-1. Table-2 of Appendix-1 has five columns. It is an

admitted fact that the fifth column was added to Table-2 of

Appendix-1 by way of amendment vide notification dated

22.01.2020. Before insertion of the fifth column, there were only

four columns in Table-2 of Appendix-1.

16. Mr. Kaushik, learned counsel for the petitioner has

argued that for the purpose of shortlisting candidates for interview,

the weightage allowed against experience of having worked on the

post of Assistant Professor on contractual basis should have been

included. He has urged, as noted above, that if this procedure is not

followed, the chance of selection of the persons having experience

shall be diminished because they may be excluded from the

process of selection after the written examination itself, despite

having the weightage to their credit, up to 25 marks against their

work experience.

17. There is no gainsaying that the statutory Rules are

silent in this regard. The submission advanced on behalf of the

petitioners that the impugned Note-4 violates any statutory

provision under the Rule is not acceptable to this Court as there is

no such provision in the Rule, which can be said to have been

violated by operating Note-4 under paragraph-5 of the

advertisement. In such circumstance, whether the process, which Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

had been adopted with the introduction of impugned Note-4, can

be said to be so unreasonable, arbitrary and thereby violating

Articles 14 and 16 of the Constitution of India or; it defeats the

very purpose of making provision for allowing weightage for

work experience, requiring this Court's interference in the process

of selection is the moot question, which this case poses to this

Court.

18. It is evident from the weightage scheme as available

in Table-2 that written examination is held for the purpose of

evaluation of domain knowledge and teaching skills. In the

absence of any clear stipulation under the Rules, the Commission

in consultation with the State Government introduced impugned

Note-4 for the purpose of shortlisting candidates for interview. The

procedure so adopted, in the Court's opinion, cannot be said to be

unreasonable or arbitrary for the reason that it gives fresh

candidates without any experience and such other aspirants who

are not entitled for weightage under the Rules, though having

teaching experience, an equal opportunity to compete with others

for the purpose of being called for the interview on the basis of

evaluation of their domain knowledge and teaching skill. Those

candidates, who compete in the written examination for being

shortlisted for the purpose of interview and have experience of Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

teaching on contractual basis, shall thereafter have the benefit at

the stage of preparation of final merit list in accordance with fifth

column of Table-2 of Appendix-1 of the Rules. The procedure

adopted by the Commission and the State Government by

providing impugned Note-4 is apparently focused to ensure and

encourage fair competition by giving adequate opportunity of

selection to fresh candidates and others having better domain

knowledge and teaching skill. If the shortlisting for interview was

to be done after including the weightage of work experience

(maximum 25 marks), the same would imbalance the merit list for

interview as those having experience will steal a march over

meritorious candidates having better domain knowledge and

teaching skill in the very beginning of the process of selection. For

example, if a meritorious fresh candidate scores 39 out of 40 in the

written examination will be placed below in the merit list for

inerview than a candidate scoring 16 out of 40 with maximum

weightage against experience. Such procedure shall have the

consequence of ousting meritorious candidates from the initial

stage of the process of selection itself. On the other hand, the

effect of procedure, which has been adopted by the Commission

and the State Government would be, that at the stage of evaluation

of domain knowledge and teaching skills of the candidates shall be Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

treated at par for the purpose of their shortlisting for interview.

Those candidates, who have experience and perform well in the

written examination, shall thereafter have the benefit of addition of

weightage against their work experience for the purpose of final

merit list. It is evident, in the Court's opinion that requirement of

introducing the impugned Note-4 in the advertisement published

on 09.09.2020 arose because of insertion of the fifth column in

Table-2 of Appendix-1 of the Rules, which envisages grant of

weightage to the candidates working on contract basis @ five

marks per year (maximum 25 marks).

19. In the facts and circumstances discussed

hereinabove, the policy decision taken by the respondents to

shortlist candidates for interview on the basis of written test, in the

Court's opinion, is neither contrary to the statutory provisions nor

violative of any of the fundamental rights.

20. In case of B. Ramakichenin (supra), which has been

pressed into service by learned counsel for the petitioners and the

Commission as well does not support the case of the petitioners.

The Supreme Court has laid down In case of B. Ramakichenin

(supra) that even though there is no mention of shortlisting in the

Rules or the advertisement for interview, a procedure for

shortlisting can be resorted to by the selection body. It has been Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

laid down that for valid shortlisting there have to be two

requirements: -

(i) It has to be on some rationale or objective basis; and

(ii) If prescribed method of shortlisting has been

mentioned in the Rules or the Advertisement than that method

alone has to be followed.

21. In the present case, the method of shortlisting has

been mentioned in the advertisement though not in the Rules. The

said method is based on some rationale and objective basis. It has

already been held hereinabove that the procedure adopted by the

respondents for shortlisting cannot be said to be unreasonable and

arbitrary.

22. The paragraphs 18 and 19 in the case of B.

Ramakichenin (supra), can be usefully quoted for quick reference

which read as under: -

"18. In the present case, no doubt, UPSC had resorted to an objective and rational criteria that only those who have two years' experience after getting MSc degree will be considered, while those who have got such experience but only before getting MSc degree will not be called for the interview. Ordinarily we would not have taken exception to this procedure since it is based on an objective criteria, and ordinarily this Court does not interfere with Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

administrative decisions vide Tata Cellular v. Union of India [(1994) 6 SCC 651 : AIR 1996 SC 11] . As observed in the said decision, the modern approach is for courts to observe restraint in administrative matters.

19. Hence, if the method of shortlisting had not been prescribed by UPSC or in a statutory rule, it is possible that the argument of learned counsel for the respondents may have been accepted and we may not have interfered with the method of shortlisting adopted by UPSC since it appears to be based on a rational and objective criteria."

23. After having held so, the Supreme Court ,in the case

of B. Ramakichenin (supra) noticed paragraph 3.1 of the

advertisement of the Union Public Service Commission in

question, which prescribed the method of shortlisting. In the said

paragraph of the advertisement, it was mentioned that the

Commission might restrict the number of candidates on the basis

of either qualifications or experience higher than the minimum

prescribed for the advertisement or on the basis of experience in

the relevant field. It was open, thus, to the UPSC to do shortlisting

by stating that it would call only those who have Ph.D. degree,

though the essential degree was only M.Sc. Similarly, the UPSC

could have said that it would call for interview those candidates, Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

who had five years experience although the experience

requirement was only two years experience the Supreme Court

remarked. The Supreme Court, however, noticed that the

experience after getting M.Sc. Degree could not be said to be

higher than the experience before getting M.Sc. Degree. Further,

the advertisement did not mention that two years experience must

be after getting M.Sc. Degree. After noticing the aforesaid facts,

the Supreme Court concluded in paragraph 23 as under: -

"23. Had Para 3.1 not been in the advertisement of UPSC it is possible that we may have taken a view in favour of the respondents since in that case it was open to UPSC to resort to any rational method of shortlisting of its choosing (provided it was fair and objective). However, in the present case, a particular manner of shortlisting has been prescribed in Para 3.1. Hence, it is not open to UPSC to resort to any other method of shortlisting even if such other method can be said to be fair and objective."

24. In contrast, in the present case, there is clear

stipulation in the advertisement itself that candidates will be

shortlisted for interview on the basis of written examination.

Following the law, which has been discussed and laid down in the

case of B. Ramakichenin (supra), in my opinion, the impugned Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

stipulation in Note-4 under paragraph 5 of the advertisement does

not require interference.

25. In my considered opinion, the decision in the case of

Ashish Kumar (supra) relied on by learned counsel for the

petitioner has no application at all in the facts and circumstances

of the present case for the reason that the impugned term of

advertisement cannot be held to be contrary to the statutory rules.

It is well established legal principle that any part of the

advertisement, which is contrary to the statutory rules, has to give

way to the statutory prescription. In the present case, the statutory

rule is silent and in that background, a conscious decision has been

taken by the State Government and the selection body how to

shortlist candidates for interview, which cannot be said to be

unreasonable.

26. The decision in the case of Amlan Jyoti Borooah

(supra) is easily distinguishable which was rendered by the

Supreme Court in a different situation altogether. The said case

related to selection to the post of Sub Inspector of Police in Assam.

There was a stipulation in the advertisement that those candidates,

who qualify in the written test, will be required to appear in a

physical test and the interview to be conducted centrally. The

Supreme Court held that plain reading of the said clause clearly Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

showed that the interview was to be conducted only after holding

of the said tests. In the said case, the Selection Committee had

decided to take interview prior to holding of the physical ability

test. Holding the procedure to be erroneous, the Supreme Court

held in paragraph 28, relevant portion whereof is reproduced

hereinbelow: -

"28. ....Physical ability test keeping in view the nature of the job required to be performed by the candidates was an extremely important one. Passing in the physical ability test is a sine qua non for selection of the candidates in the post of Sub-Inspector of Police. It was indeed a competitive test. The merit list, thus, should have been prepared not only on the basis of the written test and interview but also the physical ability test. The Selection Committee, in our opinion, committed a serious error in changing the order of holding the tests. The learned Single Judge, therefore, was correct in arriving at a conclusion that physical ability test should have been held prior to holding of the interview.

27. The said decision of the Supreme Court in the case

of Amlan Jyoti Borooah (supra), thus, has no application in the

present facts of this case.

28. For the foregoing reasons, I do not find any illegality

in the impugned prescription in Note-4 of paragraph 5 of the Patna High Court CWJC No.7963 of 2021 dt.11-05-2022

advertisement in question. I accordingly do not find any merit in

this application. This application is accordingly dismissed.

29. There shall, however, be no order as to costs.

(Chakradhari Sharan Singh, J) Pawan/-

AFR/NAFR                NAFR
CAV DATE                01.11.2021
Uploading Date           12.05.2022
Transmission Date       N/A