JUDGMENT : N. P. Singh, J.- The petitioner has invoked the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for issuance of a writ of mandamus directing the Bihar Public Service Commission (hereinafter to be referred to as 'the Commission') to recommend the name of the petitioner to the State Government for appointment to the post of Munsif. 2. An advertisement was made in the month of October, 1979 inviting applications for appointment to the 83 posts of Munsif. The petitioner along with others applied pursuant to that advertisement and appeared at the 19th Competitive Examination which was held in December, 1979. In view of rule 15 of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 (hereinafter to be referred to as 'the Rules') which requires the Commission to fix the qualifying marks in any or all subjects of the written examination in consultation with the Patna High Court, the Patna High Court was consulted for fixing the qualifying marks for the written examination of the 19th. Competitive Examination. The Patna High Court vide their letter no. 14265, dated 8.10.1980 communicated its decision that the qualifying marks for viva voce test for Scheduled Castes and Scheduled Tribes candidates should be 30% and for the rest 40%. In the meantime, there was some controversy as to whether some posts can be reserved for the Backward classes apart from the members of the Scheduled Castes and Scheduled Tribes in the Judicial Service. The Commission fixed the following percentage of marks obtained at the written examination for different categories for the purpose of calling them for interview :- Unreserved - 38% Backward Classes - 38% Most Backward Class - 25% Economical weaker (ladies) - 25% Economical Backward - 25% class - 25% Scheduled Castes - 25% Scheduled Tribes - 25% The petitioner was called for interview on 27.7. 1981 although the percentage of the marks obtained by him in the written examination was below 40%. The petitioner was called for interview under the Backward class category. 3. Before the results of the 19th Competitive Examination could be published writ applications, viz. 1981 although the percentage of the marks obtained by him in the written examination was below 40%. The petitioner was called for interview under the Backward class category. 3. Before the results of the 19th Competitive Examination could be published writ applications, viz. C.W.J. Co No. 1716, 1855, 1868 and 2207 of 1983* were filed in this Court by different petitioners for different reliefs, including for direction to publish the results of the 19th Competitive Examination at an early date as well as for quashing the decision to reserve posts for Backward Classes. On 9.9.1983, this Court held in the aforesaid cases, which were heard together, that there cannot be reservation for Backward classes under the existing Rules. This Court directed the Commission to forward the names of eligible candidates in accordance with rules 19 and 20 of the Rules aforesaid, out of the candidates who had appeared at the 19th Competitive Examination for the posts which were lying vacant. 4. As per the direction given by this Court in the aforesaid writ applications the Commission recommended more names out of the candidates who had appeared at the 19th Competitive Examination held in December, 1979. According to the petitioner, while recommending the names of more successful candidates at the said examination, the Commission has not recommended the name of the petitioner who has secured more marks than some of the respondents who have been recommended by the Commission for appointment. A copy of the letter of recommendation dated 13.1.1984 sent to the State Government by the Commission is Annexure-6 in which details of the marks obtained by 38 candidates whose names have been recommended have been mentioned. It is the case of the petitioner that he has secured 416 marks in aggregate whereas the candidates mentioned against serial nos. 36 and 37 have secured 415 and at serial no. 38, 413 marks. 5. In the counter-affidavit which has been filed on behalf of the Commission it has been stated that the High Court had recommended by its letter dated 8.10.1980 in exercise of the powers under rule 15 aforesaid to fix 30% as qualifying marks for calling for interview in respect of the members of the Scheduled Castes and Scheduled Tribes and 40% in respect of the rest. As the petitioner did not obtain minimum qualifying marks. i. e., 40% he Should not have been called for interview. As the petitioner did not obtain minimum qualifying marks. i. e., 40% he Should not have been called for interview. It is the further stand of the Commission that as the petitioner was disqualified from being called for interview, even if he has secured some more marks than three of the respondents, his name cannot be recommended. It has also been explained as to how members of the general category and Backward classes securing 38% marks at the written test had been called for interview. It has been pointed out in the counter-affidavit that after the aforesaid JUDGMENT : of the High Court no such candidate has been appointed in the general category who had secured less than 40% marks at the written examination. 6. Learned counsel appearing for the petitioner submitted that it is for the Commission to fix the qualifying marks secured at the written test in consultation with the Patna High Court and once the Commission had fixed 38% for the general category and Backward classes, the Commission had no option but to recommend the name of the petitioner for appointment if in aggregate the petitioner has secured more marks than the candidates who had secured 40% or more in the written examination. 7. Rule 15 (a) of the Rules is as follows : "15. (a)-The Commission shall have discretion to fix the qualifying marks in any or all the & subjects at the written examination in consultation with the Patna High Court. Rule 17, which is also relevant, is as follows : "17. On the basis of the marks obtained at the written examination, the Commission shall arrange for viva voce test of the candidates who have qualified at the written examination according to rule 15: Provided that in exceptional circumstances and with the prior approval of the Government, the Commission may at their discretion, admit candidates of the Scheduled Castes and the Scheduled Tribes to the viva voce test even though they may not have obtained the minimum qualifying marks at the written test." On a plain reading of rules 1 5 and 17 it is apparent that the Commission has to fix the qualifying marks at the written examination in consultation with the High Court. It is also obvious that no relaxation can be made in respect of candidates belonging to the general category once the qualifying mark at the written test has been fixed in accordance with rule 15. An exception can be made in respect of candidates belonging to Scheduled Castes and Scheduled Tribes in view of proviso to rule 17. 8. Learned counsel for the petitioner submitted that the expression "consultation" occuring in rule 15 does not mean concurrence. In other words, the Commission is not bound by the advice given by the High Court in respect of fixation of qualifying marks at the written examination. In support of this contention learned counsel purported to refer to different cases of the Supreme Court where the expression "consultation" has been examined. In my opinion, in the facts and circumstances of the present case there is no necessity of examining the scope of rule 15 as to whether the Commission has to act according to the advise of the High Court while fixing the qualifying marks at the written examination. That question could have arisen if the Commission did not act according to the advice of the High Court. In the instant case, the Commission has acted according to the advice given by the High Court. Merely because the candidates having secured less than 40% marks were called for interview, in my view, shall not clothe them any right to be selected for appointment. I have already pointed out that in the counter affidavit it has been explained as to why at that stage the Commission had decided to call for interview even the candidates who had secured 38% marks. But while recommending the names for appointment, a list of successful candidates had been prepared strictly in accordance with rules 19 and 20 of the Rules. Learned counsel appearing for the petitioner had to admit that no candidate has been recommended for appointment by the Commission who had secured less than 40% marks at the written examination. In that view of the matter there is no scope for an argument that the petitioner has been discriminated in any manner. 9. Learned counsel appearing for the petitioner had to admit that no candidate has been recommended for appointment by the Commission who had secured less than 40% marks at the written examination. In that view of the matter there is no scope for an argument that the petitioner has been discriminated in any manner. 9. Learned counsel appearing for the Respondent-Commission rightly submitted that if this Court issues a writ of mandamus to recommend the name of the petitioner it will create an anomalous situation because then the Commission shall have to prepare a revised list taking into consideration other candidates who had been called for interview although they had secured below 40% marks but might have secured more at the aggregate having got more marks at the viva-voce test. It was further pointed out that on basis of the advice of the High Court regarding fixation of the qualifying marks at the written examination, already names of candidates have been recommended who have already been appointed. If the contention of the petitioner is accepted, many others may question, on this principle, the appointment of those candidates although their names had been recommended in accordance with the advice of the High Court. In my opinion, no illegality has been committed by the Commission and the petitioner has not acquired any legal right merely on basis of having been called for interview because in normal course the petitioner should not have been called for interview. 10. There is no merit in this application and it is, accordingly, dismissed, but without costs. 11. S. S. Sandhawalia, C. J.-I agree.