Patna High Court
Sanjay Gandhi vs The State Of Bihar And Ors on 5 January, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.512 of 2018
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Sanjay Gandhi, son of Sri Sheo Dutt Ram, resident of Village - Dhanaura,
P.O. - Naraw, P.S. - Autar Nagar, District - Saran (Chapra).
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, the General
Administrative Department, Government of Bihar, Patna
2. In the High Court of Judicature at Patna through its Registrar General, High
Court, Patna.
3. The Bihar Public Service Commission, 15, Jawaharlal Nehru Marg, Bailey
Road, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Abhinav Shrivastava, Advocate
Mr. Kanhaiya Pandey, Advocate
Mr. Shailendra Gandhi, Advocate
For the State : Mr. P.K. Shahi, AG
For the High Court : Mr. Satyabir Bharti, Advocate
Mr. Abhishek Anand, Advocate
Ms. Sushmita Sharma, Advocate
Ms. Kanupriya, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 05-01-2024
The petitioner is a candidate who appeared in the 29 th
Bihar Judicial Services Competitive Examination held for
selection of Civil Judges (Junior Division). The advertisement was
issued by the Bihar Public Service Commission in the year 2016.
The petitioner appeared and qualified in the Preliminary Test and
was called for the written test wherein he secured 356 marks. This
Patna High Court CWJC No.512 of 2018 dt. 05-01-2024
enabled him to be called for the viva voce/ interview in which he
asserts he answered the questions properly and accurately.
However, having not received the minimum qualifying marks in
the interview, he was not selected. The petitioner obtained only 28
marks out of 100 marks in the interview and there was a
prescription that a candidate who appears in the interview has to
get a minimum of 35 per cent marks for being appointed to the
post of Civil Judge (Junior Division). The petitioner on being
informed of his non-inclusion in the final select-list, filed the
above writ petition.
2. The petitioner before this Court alleged that the
prescription of the minimum marks in interview was brought in by
Bihar Civil Service (Judicial Branch) (Recruitment) Amendment
Rules, 2014 of the General Administration Department. This is
alleged to be ultra vires, unconstitutional and invalid since the
mandate of law, as contemplated under Section 26 of the Bihar and
Orissa General Clauses Act, 1917, has not been followed. The
mandate according to the petitioner is that the authority having
power to make the rules or bye-laws shall, before making them,
publish a draft of the proposed rules or bye-laws for the
information of persons likely to be affected thereby. Admittedly,
there was no such publication made. The petitioner before us also
claimed that while a different qualifying standard was applied to
Patna High Court CWJC No.512 of 2018 dt. 05-01-2024
the Scheduled Caste candidates, to which category the petitioner
belonged, in the Preliminary and Main test, no such reduction in
standard was allowed in the Interview. Such denial of a reduced
standard to the reserved category also vitiates the selection, is the
contention.
3. We heard Shri Abhinav Shrivastava, learned counsel
for the petitioner and Shri Satyabir Bharti, learned counsel
appearing for the Bihar Public Service Commission.
4. At the outset, it has to be noticed that even according
to the petitioner, the prescription of a minimum qualifying marks
for the interview was available in the advertisement for selection.
The petitioner without objection appeared in the examination and
also attended the interview. The petitioner challenged the
prescription under which he applied and participated in the
selection only after he was declared to have failed. The petitioner
having not at the outset challenged the prescription, after
participating in the interview, cannot claim that the prescription
was bad.
5. Yet another contention raised by the petitioner was
that he was asked by the Interview Committee Members as to what
he would do in Judicial Service since he is over aged. The said
allegation also is an afterthought since it should have been raised
immediately after the interview and not when the candidate was
Patna High Court CWJC No.512 of 2018 dt. 05-01-2024
found to have failed in the interview or rather failed to achieve the
minimum standard prescribed.
6. The further contention under the General Clauses Act
also is not sustainable. As pointed out by the learned counsel for
the respondents, the provision under Rule 26 is applicable only
when it is expressly provided in the enactment which confers
power to make rules or bye-laws that the rules or bye-laws should
be made, after previous publication. In this context, it is also to be
noticed that the persons likely to be affected are unidentifiable in
so far as a fresh recruitment is concerned. The above prescription,
so as to effectively communicate the change, to those persons
likely to be affected, can only be in the case of promotions or any
change in conditions of service made to existing employees. In any
event, there is no prescription pointed out which mandates the
rules to be promulgated after a previous publication. We hence
find the contention to be untenable.
7. In so far as prescription of minimum marks, at a
lower standard, it is for the appointing authority to decide as to
what would be the standard for selection of candidates. In the
present case, the rule has been amended bringing in minimum
marks in interview for the purpose of selection to the post of
Judicial Officers and the rule itself provides it to be 35 per cent in
which circumstance there cannot be any relaxation granted, which
Patna High Court CWJC No.512 of 2018 dt. 05-01-2024
is not available in the rules. Considering also the fact that the
selection is made to the post of Judicial Officers, we do not find
any reason to interfere with the same.
8. We also garner support from the decisions of the
Hon'ble Supreme Court in K.H. Siraj v. High Court of Kerala
and others; (2006) 6 SCC 395 and Arunachal Pradesh Public
Service Commission and another v. Tage Habung and others;
(2013) 7 SCC 737 wherein the prescription of minimum marks for
the interview was upheld.
9. We find absolutely no reason to entertain the writ
petition and for all the reasons stated above, the writ petition
would stand rejected.
(K. Vinod Chandran, CJ)
Rajiv Roy, J: I agree.
(Rajiv Roy, J)
P.K.P./-
AFR/NAFR
CAV DATE 14.12.2023
Uploading Date 05.01.2024
Transmission Date
