Kaushal Kumar v. B. P. S. C. — 1999 DIGILAW 1230 (PAT)

Judgment 1. These two writ petitions have been filed for an appropriate writ/direction quashing the notification published in the daily newspaper Hindustan, dated 8.9.1999, contained in Annexure-2, whereby 9.10.1999 was a date fixed by the Bihar Public Service Commission (hereinafter to be referred to as "BPSC") for holding a preliminary test for the 25th Bihar Judicial Service Competitive Examination and thereafter direct the respondents to proceed with the selection process, after due consultation with the High Court, on the basis of a written test strictly in accordance with the procedure prescribed under the Bihar Judicial Service Recruitment Rules, 1955 (in short "the Rules"), as amended by the notification of the State Government, dated 22nd July, 1988. 2. In the facts and circumstances of these cases, question relevant for consideration is whether the BPSC can adopt its own procedure for holding a preliminary test or it can be done only in accordance with the procedures prescribed under the relevant "Rules" and whether such a test can be held justified without even adhering to the provisions prescribed under rule 18 of the Rules as substituted by the notification dated 22nd July, 1988. 3. In my view, to answer the contentions of the parties, it would be apt to notice some of the relevant rules, which may have the material bearing on the questions that fell for determination. As per rule 4 of the Rules, the Commission is required to announce each year the number of vacancies to be filled in that year by direct recruitment on the results of competitive examination and shall invite applications from the eligible candidates for appointment. Rule 5 authorises BPSC to fix a limit in a particular year as to the number of the eligible candidates to be admitted to the examination and, if the number of candidates exceeds the limit fixed, the Commission may take a decision to hold a preliminary selection of candidates to be admitted to the written examination on the basis of their "academic records". As per rule 18, which existed prior to the substitution, vide notification dated 22nd July, 1998, an officer appointed by the Chief Justice was required to be present at the viva voice test and advise the Commission on the fitness of the candidates from the point of view of special qualification for the service, but shall not be responsible for selection of the candidates. Since the apex Court in the case of All India Judges Association and others vs. Union of India and ors. ( AIR 1993 SC 2493 ) decided that whenever recruitment of the Judicial Officers at the lowest rung is made through the Public Service Commission, a representative of the High Court should be associated with the selection process and his advice shall prevail unless there are strong and cogent reason for not accepting. Accordingly, a direction was issued for amendment of the Rules of recruitment of the Judicial Officers to incorporate the above directions. Therefore, having regard to such a decision, the Government of Bihar by the notification dated 22nd July, 1998, substituted rule 18 incorporating the above direction of the apex Court. 4. Undisputedly, as would appear from rule 5 of the Rules, which has a material bearing on the subject, if the number of candidates of a particular examination exceeds the limit fixed, the Commission may by preliminary selection, shortlist the candidates after examining their "academic records". No other mode for holding any written test or interview at the stage of preliminary test has been prescribed. 5. Learned counsel appearing for the petitioners, therefore, contended that having regard to the specific criteria fixed under the statutory rules framed under Article 309 of the Constitution, the respondent Commission will have no jurisdiction to prescribe a different mode for holding preliminary examination. 6. Learned counsel for the respondents also fairly accepted that save and except the provisions prescribed under rule 5 to hold the preliminary test on the basis of the "academic records" of the candidates, there is no other provision in the instant "Rule" prescribing a different mode for holding such a test. But it was contended that the procedure adopted by the Commission for holding the written examination for the preliminary test was made for all the candidates who have applied for the appointment. Such a decision cannot be held unreasonable or irrational, particularly, in the background when the Commission had been empowered under the instant rule to hold a preliminary test. Reference in this regard was made to a decision of the apex Court in the case of Madhya Pradesh Public Service Commission vs. Navnit Kumar Poddar and anr. ( AIR 1995 SC 77 ) and yet another decision of this Court in the case of Anzar Ahmad vs. State of Bihar & ors. Reference in this regard was made to a decision of the apex Court in the case of Madhya Pradesh Public Service Commission vs. Navnit Kumar Poddar and anr. ( AIR 1995 SC 77 ) and yet another decision of this Court in the case of Anzar Ahmad vs. State of Bihar & ors. [1993 (2) PLJR 134 (SC)] to show that in a case where uniform policy is adopted for shortlisting the candidates for a better test and selection no arbitrariness or unreasonableness can be alleged. 7. In my view, the views expressed by the apex Court in the case of Madhya Pradesh Public Service Commission vs. Navnit Kumar Poddar and another (supra) or Anzar Ahmad vs. State of Bihar & ors. (supra), perhaps, may not be applicable to the facts of the instant case. True it is, it has already been approved by the apex Court that in case a large number of applications are called for interview in respect to limited posts, interview in such a case is bound to be casual and superficial. The members of the Commission may not be in a position to assess properly the candidates who appear before them for interview. Therefore, to avoid such eventualities, it may be necessary to fix the limit of the applicants who should be called at the interview where there is no written test. The decision regarding shortlisting the number of the candidates who had applied for the post must not be based on any extraneous consideration. If there is no specific mode prescribed under any statutory service rule, it will be open to the Commission to prescribe its own mode for holding the test. 8. The case of Anzar Ahmad vs. State of Bihar & ors. (supra) was also grounded on different facts. In that case, question relevant, which fell for consideration, was whether allocation of 50% marks for viva voce and 50% for academic performance can be held justified where there was no written test. It would appear in that case, the State Government had informed the Commission that selection should be made on the basis of interview. Therefore, on such a request of the Government, the Commission could have made selection wholly on the basis of marks obtained at the interview. It would appear in that case, the State Government had informed the Commission that selection should be made on the basis of interview. Therefore, on such a request of the Government, the Commission could have made selection wholly on the basis of marks obtained at the interview. But the Commission as per the past practice made the selection on the basis of interview keeping in view the academic performance and with that end the Commission had allocated 50% marks for interview. It was held that procedure adopted by the Commission was not arbitrary because by giving equal weightage to the academic performance, the Commission had rather reduced the possibility of arbitrariness. 9. Therefore, the plain narration of the abovementioned facts would indicate that ratio of the abovementioned cases are not applicable to the present case. Because, the relevant "rule" which governs the criteria for examination and other selection process etc. specifically prescribes that preliminary test for shortlisting can only be done on the basis of the "academic records" of the candidates. Therefore, unless the relevant provision is suitably modified, it will not be open to the respondents to supersede its force by means of any executive instruction or administrative order, as held by the apex court in the case of Sant Ram Sharma vs. State of Rajasthan and others ( AIR 1967 SC 1910 ) and yet another decision expressing a similar view, in the case of Sri Durgacharan Misra vs. State of Orissa & Ors. ( AIR 1987 SC 2267 ). 10. True it is if the statutory rule is silent regarding any mode for holding the preliminary test, the Government can fill up the gap by appropriate order/instruction, which must not be unreasonable. But in the instant case, I have already noticed save and except a procedure for holding the preliminary test on the basis of "academic records" of the candidates, there was no other provision. Hence, for the reasons stated above, I have no option but to hold that the procedure adopted by the Commission for holding a written test for the preliminary examination is in direct conflict with the procedure prescribed under the statutory rule. 11. Hence, for the reasons stated above, I have no option but to hold that the procedure adopted by the Commission for holding a written test for the preliminary examination is in direct conflict with the procedure prescribed under the statutory rule. 11. Now turning to the second question to find out whether the respondent Commission had any consultation with the High Court or its representative regarding the selection process on the instant subject in terms of the substituted rule 18 as directed by the apex Court in the case of All India Judges Association and others vs. Union of India and Others (supra), although a counter affidavit has been filed on behalf of the Commission but there is no statement whether there was any consultation with the High Court as required under rule 18. On the other hand in the affidavit, which has been filed on behalf of the High Court, there is specific averment that there was no consultation with the Commission to hold a written test for shortlisting of the candidates. It was further stated that under rule 5 specific provision has been made regarding the manner in which preliminary selection is to be made. Therefore, even if there was any consultation with the High Court, no written examination was permissible for the preliminary test unless the statutory rule was suitably modified or altered. Reference was aiso made to the amended provision of rule 18 to show that a representative of the High Court should necessarily be a member of the Selection Committee, whenever recruitment of the Judicial Officers at the lowest rung is taken up through the Commission and the advice of such a representative shall prevail unless there are strong and cogent reasons for not accepting. 12. Therefore, in my view, having regard to the stand of the High Court, there appears no doubt that the respondent Commission without complying with the requirement of rule 18 took the instant decision to conduct a written examination for shortlisting the candidates. 13. But as would appear from the averments made on behalf of the Commission, that having regard to different standards for allotment of marks by the Universities or Boards, will it be proper to shortlist the candidates solitarily on the basis of their academic records as prescribed under rule 5 of the Rules. 13. But as would appear from the averments made on behalf of the Commission, that having regard to different standards for allotment of marks by the Universities or Boards, will it be proper to shortlist the candidates solitarily on the basis of their academic records as prescribed under rule 5 of the Rules. Because, it cannot be ignored that instant rule was framed by the State Government in the year 1955, therefore, in the changed circumstances, when large number of Universities have come up, undisputedly, the standard for allotment of marks to the students would certainly differ. Undisputedly, standard of some of the Universities for allotment of marks to the students may be quite liberal. Therefore, in case of a preliminary test on the basis of "academic records" there will always be a danger for a candidate having better merit to lose the chance for appearing at the final test of the main examination. Hence it has now become essential for the State to prescribe any other mode, including a mode for the written examination for the preliminary test to be conducted by the Commission, if necessary, in terms of rule 5 of the Rules. 14. So far the present competitive examination is concerned, as informed by the parties, there are nearly about 9000 candidates whereas admittedly, as would appear from the averments made in the writ petition, there were about 22000 candidates for the recruitment to the post of Addl. Public Prosecutors (APP) but no preliminary test was held. Therefore, it will not be difficult for the Commission to hold the written examination of such candidates. 15. That apart, before parting with this order, it would not be out of place to mention that candidates who have made applications, if selected as Judicial Officers, will be required to write orders and judgements. Therefore, purely on the basis of objective test, if any, it will not be possible to test their merit and the art of expression of a particular subject. However, these are completely within the domain of the authorities competent including the High Court to make rules and to adopt a suitable mode. It would not be proper for me to issue any direction in this regard. 16. But in the facts and circumstances of the case, since all the necessary formalities including filling of forms, fee, etc. However, these are completely within the domain of the authorities competent including the High Court to make rules and to adopt a suitable mode. It would not be proper for me to issue any direction in this regard. 16. But in the facts and circumstances of the case, since all the necessary formalities including filling of forms, fee, etc. by the candidates have been completed long back, as also having regard that the recruitment of judicial officers has already been delayed for a pretty long time, it would be proper for the Commission to hold a written test and complete all the necessary formalities instead of any further step for short listing of the candidates. Accordingly, I direct the respondent Commission to complete all the necessary formalities including holding of the main examination positively within a period of two months from today. I further direct, since the candidates have already deposited requisite examination fee, they will not be required to deposit any such fee. 17. In the result, with the above direction/observation, both the writ applications are allowed and the impugned decision of the respondent BPSC for holding the test for shortlisting as also preliminary examination conducted in this regard are hereby quashed.