JUDGEMENT Jayanandan Singh, J. 1. Prayer of the Petitioners in these writ applications are prima facie innocuous. They have prayed for a direction to the Respondents to consider their cases and declare their result, pursuant to the first round of Physical Evaluation Test (for short (PET-1) itself and appoint them as constables against quota of current vacancies for Non-Home Guard (N-H.G.) candidates advertised through Advertisement No. 2 of 2009, published in the newspaper on 11th December, 2009. 2. The grievance of the Petitioners is very simple, but a very pregnant one. As per their claim, they were finally found selected and eligible for appointment after PET-1. There were sufficient numbers of candidates available after the PET-1 for appointment against the entire 50 per cent quota (5058) of the advertised vacancies, earmarked for being filled up from N-H.G. candidates. But the Respondents have declared result of only 2228 candidates after PET-1, by Annexure-4 dated, 18th August, 2010, leaving out the Petitioners and others, and leaving out unfilled large number of the said 50 per cent vacancies of the said quota. Therefore, the simple prayer is that all the candidates who were finally found eligible in the first round of PET-1 should be directed to be appointed on the remaining vacancies of the said quota for N-H.G. candidates. 3. This prayer of the Petitioners, prima facie appearing as very simple and straightforward, is in fact an intricate one and requires this Court to go into the reasons for their non-consideration in spite of they being declared successful in the selection process held by the Respondents for appointment of constables pursuant to the said advertisement. Had the Petitioners raised individual grievances, in respect of marks shown to have been obtained by them in the written test or their markings in the PET-1, matter would have been easier. But here the Petitioners have claimed, and it is not disputed, that they had qualified in the written test and were found eligible also in the PET-1. Still they have not been appointed, although vacancies (also not disputed) were available. This required this Court to have a look into the entire selection process, from no angle an easy task for this Court in exercise of its powers of judicial review under Article 226 of the Constitution of India. 4. Still they have not been appointed, although vacancies (also not disputed) were available. This required this Court to have a look into the entire selection process, from no angle an easy task for this Court in exercise of its powers of judicial review under Article 226 of the Constitution of India. 4. But before going into further details of the selection process, the facts and figures in respect of the selection is required to be noticed first. It may be first noticed here that, through a Notification contained in Memo No. 6843 dated, 11th August, 2008 (Annexure-A to the counter-affidavit filed in the first case), by which certain amendments in the Bihar Police Manual were introduced, the prevailing system of selection and appointment of constables in the State by multiple Regional Boards, was substituted by selection and recommendation by a Central Selection Board (for short the "Board"), to be constituted by the Director General of Police, in terms of and as laid down in the said notification. It is admitted that a Board was accordingly constituted and this newly constituted Board was the body which initiated the process of selection for filling up of current 10110 vacancies of constables in State services by issue of said Advertisement No. 2 of 2009 (Annexure-1 with the first writ application) and took up all the subsequent steps thereafter in the matter. 5. In the said advertisement, after giving out the details of vacancies of constables in different districts, reservation category-wise, in the units of District Police, Bihar Military Police, in Rail Police, in Bihar Military Police (Gorkha Division), in Women Battalion and in Cavalry Division, total current vacancies were notified as 10110. As per the break-up, this total number of 10, 110 vacancies comprised of 1602 vacancies for scheduled castes, 212 vacancies for scheduled tribes, 1973 vacancies for extremely backward class, 1217 vacancies for backward class, 278 vacancies for backward class (women) and 4868 vacancies for general category. It was mentioned in the advertisement that, out of these 10110 vacancies, half had to be filled up from Home Guards (H.G.), trained and registered in the State, and other half had to be filled up from open market, i.e., from Non-Home Guard (N-H.G.) candidates. For both the quota of vacancies, the category-wise reservation, as laid down in Act 3 of 1992, was to apply. For both the quota of vacancies, the category-wise reservation, as laid down in Act 3 of 1992, was to apply. Hence, as per the case of the Respondents, out of 10110 vacancies, 5052 vacancies were earmarked for being filled up from Home Guards and 5058 vacancies were earmarked for being filled up from N-H.G. candidates. 6. In response to the advertisement, Board received approximately 3.65 lacs applications. It may be noticed here that, as against previous procedure for selection, in which physical fitness test was the only mode of selection, by amendment in the Police Manual by the said notification, an objective type written test of Class-X standard, of 300 marks, with provision of negative markings, was prescribed. It has not been specifically pleaded, but it is also not denied that, for declaring the candidates to have cleared the written examination, the Board decided to apply the minimum percentage of marks prescribed for different reservation categories of candidates, as per Memo No. 10258 dated, 5th August, 1991 of the Administrative and Personnel Reforms Department, which prescribed that, for being declared to have cleared the written examination held by B.P.S.C. or Bihar State Subordinate Services Selection Board, a general category candidate was to secure minimum 40 per cent marks, whereas backward category candidate was required to secure 36.5 per cent marks, backward Annexure-1 category candidate was required to secure 34 percent marks and S.C., ST. and female candidates were required to secure 32 per cent marks. The written test was to precede Physical Evaluation Tests, for which candidates were to be called on the basis of merit list of written test in the ratio of 1:5. 7. After the last date for receipt of applications in the Board Office, the applications received in time were scrutinised and admit cards were issued to the candidates for appearance in the written test, which was fixed for 1st May, 2010, to be held at centres all over the State. The candidates, including all the Petitioners, appeared and the result of examination was published on 18th June, 2010 in which 19616 candidates were declared as pass. Accordingly, the said 19616 candidates were called for Physical Evaluation Test (PET-1) which was held between 1st August, 2010 and 17th August, 2010. The candidates, including all the Petitioners, appeared and the result of examination was published on 18th June, 2010 in which 19616 candidates were declared as pass. Accordingly, the said 19616 candidates were called for Physical Evaluation Test (PET-1) which was held between 1st August, 2010 and 17th August, 2010. As per the admitted case, out of 19616 candidates, who were declared pass, only 389 were of H.G. category and the rest 19227 were of N-H.G. category. 8. PET-1 was finally completed on 18th August, 2010, in which, out of 19616, only 5676 candidates were found to have cleared all the physical tests. Out of this 5676, 5545 were N-H.G. candidates (against 5058 vacancies available for them), but only 131 were H.G. candidates (against 5052 vacancies earmarked for them). Hence, the Board realised that large number of vacancies of the quota for Home Guards were going to remain unfilled because of very small number of Home Guards being successful in the written test and further lesser number of them finally clearing the physical test. They also realised that sufficient number of N-H.G. candidates had also not cleared the physical test to enable the Board to make its recommendation for filling up of all the remaining vacancies of H.G. quota from them, as per the respective reservation category, as provided in the Police Manual by the said amendment. Hence, by Memo No. 695/P-2 dated, 28th July, 2010, guidelines were sought for from the Government in respect of procedure to be adopted for filling up of the remaining vacancies, particularly of H.G. quota. Accordingly, the State Government, through letter of the Secretary, Department of Home, as contained in Memo No. 699 dated, 4th August, 2010 (Annexure-B to the counter-affidavit filed in the first case), addressed to the Director General of Police, issued certain guidelines in respect of steps to be taken for filling up of remaining vacancies, with a request to him to communicate the said guidelines to the Board and ensure action accordingly and report compliance (details of the said Guidelines are dealt with in the later part of the judgment). 9. In the circumstances, following the said Guidelines, suggesting calling of names in the ratio of 1:5 for physical test, a list of 31,552 more candidates were published on 13th August, 2010, declaring them pass in the written test. 9. In the circumstances, following the said Guidelines, suggesting calling of names in the ratio of 1:5 for physical test, a list of 31,552 more candidates were published on 13th August, 2010, declaring them pass in the written test. Out of this 31,552, 24,641 were N-H.G. candidates and 6911 were H.G. candidates. While the process of physical test of those 31552 candidates was in progress (PET-2), Board published the result of only 2,228 candidates on 18th August, 2010 (as contained in Annexure-4 with the first writ application), out of 5545 who had cleared PET-1, and "put on hold" the result of rest 3,317 successful candidates. Out of the said 2,228 candidates, 2,095 were of General category, 131 were Home Guards and 2 were Gurkhas. No recommendation was made in respect of 85 vacancies of General category, although finally successful candidates were available, as, after the last candidate of the category recommended, large number of candidates had same marks in written test. The candidates, whose result were declared by said Annexure-4, were directed to collect their appointment letters from the office of the Central Selection Board, upon production of their admit cards and identity cards and report to the concerned officers in the District or Battalion, as indicated in the list itself, for their joining. On an earlier date, this Court had directed the Respondents to produce various chart prepared at different stages of the selection process which they produced. From the chart of 2228 candidates, who were finally declared selected on 18th August, 2010, it appeared that the last candidate, who was selected for appointment in this list, had secured 120 marks in the written test. 10. As per the stand of the Respondents, the reasons with them to "put on hold" the result of 3317 successful candidates of PET-1, who belonged to the different reserved categories, was that, after the State Government clarified, that the ratio of 1:5 had to be maintained for calling candidates for physical test, the requirement of securing qualifying marks in the written test got obliterated. Hence, candidates 5 times of the total 10110 vacancies had to be called from the top of the merit list of written test of said approximately 3.65 lacs applicants who had appeared in the test. This required the re-working out of vacancies for different reserved categories. Hence, candidates 5 times of the total 10110 vacancies had to be called from the top of the merit list of written test of said approximately 3.65 lacs applicants who had appeared in the test. This required the re-working out of vacancies for different reserved categories. It was visualised that, with the increase in available vacancies, due to merging of remaining vacancies of H.G. quota with the vacancies of N-H.G. quota, the 50 per cent vacancies of General category may increase. Hence, applying Sub-section (3) of Section 4 of Act 3 of 1992, many reserved category candidates, who had remained in the reserved category after PET-1, due to lesser number of vacancies available at that point of time, may deserve to be shifted to general category, making room for further reserved category candidates. To justify publishing of the part of the result of the first phase of physical test (PET-1), it was contended that, since those 2,228 candidates stood selected from the top of the combined merit list, irrespective of their category, they would not have got affected in any case and would have got selected either way. 11. Hence, after the second phase of Physical Evaluation Test (PET-2), of the candidates who were declared pass subsequently on 13th August, 2010 on the basis of 1:5 ratio, was over by 7th October, 2010, in which, out of the said 31,552 candidates, 11,187 candidates were found physically fit, including 1859 Home Guards, a combined list of successful candidates, by merging the successful candidates of PET-1 with that of the PET-2, was prepared. Thereafter, the total available vacancies, including the left over vacancies of the H.G. quota [barring 1990 (131+1859) H.G. vacancies, for which Home Guard candidates had become available], were also merged and the combined list was prepared and reservation policy was applied to it as per the reservation categories as laid down in Sub-section (2) of Section 4 of the said Act 3 of 1992. Thereafter another final result of 7,879 candidates (excluding the earlier 2,228) was published on 18th December, 2010. 12. Before proceeding further, it will be appropriate to state that figures of candidates and vacancies, mentioned hereinabove, are based on pleadings of the Respondents, in which, in course of hearing of the case, it was discovered that there were minor discrepancies. Thereafter another final result of 7,879 candidates (excluding the earlier 2,228) was published on 18th December, 2010. 12. Before proceeding further, it will be appropriate to state that figures of candidates and vacancies, mentioned hereinabove, are based on pleadings of the Respondents, in which, in course of hearing of the case, it was discovered that there were minor discrepancies. However, since the case proceeded on the broader aspects of the matter in respect of correctness or otherwise of selection process adopted by the Respondents, and the changes made midway in the same and preparation of, result in the light of the guidelines issued in the letter of the Secretary, Department of Home, as-contained in the said Memo No. 699 dated, 4th August, 2010 minor variations in the figures are not material for consideration of these, cases. For the same reason, this Court has not proceeded to examine the individual claims of the Petitioners or the intervenors, who have filed applications to intervene in the matter in support of the writ petitioners. 13. In course of hearing of the matter, it became clear that there was an agreement between learned Counsel of the respective parties that the selection of Constables for appointment, pursuant to Advertisement No. 2 of 2009, had to be made in terms of the provisions of Bihar Police Manual, as amendment by the said notification of the Home (Police) Department dated, 11th August, 2008. There was also unanimity amongst them that the said Advertisement No. 2 of 2009 published in the newspapers on 11th December, 2009, was issued in terms of the said amendment in the Bihar Police Manual by the said notification. There was also no dispute that Guidelines were issued by the Secretary/Department of Home, addressed to the Director General of Police by the said letter dated, 4th August, 2010 in respect of steps to be taken for filling up of total available current vacancies. Disagreement between the parties was only in respect of changes introduced by the Board in the process for further selection of candidates, in implementation of the said Guidelined contained in the said memo dated, 4th August, 2010, by merging the vacancies and merging the qualified candidates of PET-1 with those of PET-2. Disagreement between the parties was only in respect of changes introduced by the Board in the process for further selection of candidates, in implementation of the said Guidelined contained in the said memo dated, 4th August, 2010, by merging the vacancies and merging the qualified candidates of PET-1 with those of PET-2. In the circumstances, this Court felt it appropriate to first consider the true import of the relevant provisions of the said amendments in the Bihar Police Manual, clauses of the advertisement and the spirit and tenor of the said Guidelines issued by the Government for the Board to follow for further selection of the candidates for filling up of the remaining vacancies. 14. Taking up the first item, this Court finds that the Said Memo No. 6843 dated, 11th August, 2008 contains a notification issued by the Home (Police) Department, through which, Governor of Bihar, in exercise of powers in terms of Section 55 read with Section 94 of the Bihar Police Act, 2007, introduced amendments in the Bihar Police Manual. The effect of these amendments was that the procedure of selection and appointment of Constables in State Services, as previously in vogue in terms of unamended provisions of the Bihar Police Manual, by Regional Recruitment Boards at Divisional Levels, was given a go-bye and in its place, provision was made for constitution of a Central Selection Board by the Director General of Police for selection and recommendation of candidates for appointment as constables in different districts, in different units of Military Police, in Railway Police under the State and other divisions. It was laid down therein that this Board will send recommendations of successful candidates who qualify in written examination and physical measurement test to the Superintendents of District Police/Commandants of Battalions. On such recommendations of the Central Selection Board, respective Superintendents of the District Police and the Commandants of Battalions were to appoint the candidates after due verification. It was laid down therein that this Board will send recommendations of successful candidates who qualify in written examination and physical measurement test to the Superintendents of District Police/Commandants of Battalions. On such recommendations of the Central Selection Board, respective Superintendents of the District Police and the Commandants of Battalions were to appoint the candidates after due verification. By this notification, the system of selection, in vogue earlier, only on the basis of physical fitness of the candidates, was also changed and, before physical tests, a written test was prescribed of the standard of Class-X. It was laid down that the examination would be of objective type and of total 300 marks there would be 100 questions in the paper of two hours duration in which 3 marks would be given for each correct answer and 1 (one) mark would be deducted for each wrong answer book would be in duplicate, out of which one copy would be in the form of invisible carbon copy and this would be preserved with the Selection Board and merit list of the candidates would be prepared on the basis of marks secured in the written test. It was also laid down that, on the basis of marks secured in the written test, candidates of each reserved category would be called for physical test in the ratio of 1:5, taking into account advertised/probable vacancies. It was also clarified that it would be essential to qualify in physical test but that would carry no marks and no relaxation shall be allowed in the same. Some provisions of the notification (extracted from the English version of notification annexed as Annexure-A with the counter-affidavit filed in CWJC No. 14742 of 2010), relevant for this case, are reproduced here below: (g) For each reservation category candidates will be selected in the ratio of 1:5 of published/probable vacancies on the basis of marks obtained in written examination. (h) Candidates selected on the basis of written examination will have to appear in physical test/measurement and it will be mandatory to qualify in the same, but no marks will be given on the basis of physical test/measurement. "(m) Reservation.- The provision of reservation as per the. (h) Candidates selected on the basis of written examination will have to appear in physical test/measurement and it will be mandatory to qualify in the same, but no marks will be given on the basis of physical test/measurement. "(m) Reservation.- The provision of reservation as per the. Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 (Bihar Act 3 of 1992) (as amended from time-to-time) will apply: Provided that a maximum of 50 per cent of total vacancies of constables may be filled up by Home Guards who are trained and registered in Bihar. The category-wise reservation, as, per provisions of Bihar Act of 1992 reservation will also apply to fill up the vacancies of Home Guards. Relaxation of 5 years in upper age limit in each reservation category will be given for the vacancies to be filled in by Home Guards. In case of non-availability of sufficient number of eligible Home Guard, vacancies of Home Guards quota will be filled up by the non-home guard candidates of same reservation category. 15. Advertisement was published in accordance with the provisions of the Police Manual, as incorporated by the said Notification, and in the Advertisement the said provisions were reproduced almost word by word. Therefore, this Court does not feel it necessary to deal with the stipulations in the Advertisement separately, except that the Advertisement contained the detailed break-up of the vacancies, district-wise, battalion-wise, unit-wise etc. with separate reservation category which has already been noticed above. 16. As noticed earlier, the Respondents did not get sufficient number of candidates to fill up all the 10110 vacancies after PET-1. Although, for 5058 N-H.G. vacancies, 5545 candidates were found physically, fit (but not necessarily in exact or in more numbers vis-a-vis vacancies of each reservation category), only 131 Home Guards were finally found eligible against 5052 vacancies earmarked for them. This necessitated soliciting guidelines from the Government, which were issued through the said memo dated, 4th August, 2010. Although, for 5058 N-H.G. vacancies, 5545 candidates were found physically, fit (but not necessarily in exact or in more numbers vis-a-vis vacancies of each reservation category), only 131 Home Guards were finally found eligible against 5052 vacancies earmarked for them. This necessitated soliciting guidelines from the Government, which were issued through the said memo dated, 4th August, 2010. Since the entire issue before this Court hinges upon exact spirit and tenor of the said guidelines and suggestions of the Government to the Central Selection Board, it is appropriate to reproduce the four clauses of Paragraph 1 of the letter, spelled out in the Guidelines, as contained in the memo, herein itself for proper appreciation: (cp) felRsJd TTfrsTT MiMlcf 1: 5 & STJTKT *f 3T«Tt9fcff ^ft iillflR* V$\&\ %% 3TFT%f g^Ff fft SmFT ft? f^TFT eft 3#tt£tRT Wm 6843 f^TTcfJ 11.8.2008 cp £RT t%R gfcra SffSrf^R 2007 ^ft £TRT -55, -USMfecl £TRT 94 $ 3$fa ^R^T SIRdAll ^ W1F1 cR?f f? f^TT trTT f I 3RT: ^FfcPT Wcf Statutory Rule ?ft 3 > 35Rnr fefc^ft cblijmclcb 3TP^?T 3f fefrtft yfd*d efRT cf > ^ ^ tfi efTHfcF^t #TT I *|Rch Ticf yyiivHRcb ^R f^TFT cp eTrt 3fTEIR ^ ^T -!{HclH WW*5 t^ratRcr t%iTT WU %, ^3WP] TtfvH f^TT^t *Rff $ *rrHer $ wti m sftflr^f ^ii % I *d >M^q iciRsici v%m $ mm m ^Tcm"" 5nwf > eft #ht eft fM^rcT cf^% ^ gR^ cftfe 3 j: 5 cfr apjqm 3 ^wrfsM eft SIlflRcb tr^STT % $ fcTRTT mTPJ I (*3) vJM^leKI vdMcbfecbl -cf > if crfifcT fttcT ^ 1: 5 ep 3FjqRT 3 feTfeRT *tftelT 3 >T qRuiH TEfrf^RT cRft ^q tj4 ^f >h^H SII^R* q^tSTT ^ 3tWTC *R 3Tf^R qRu|H ^?ct ,Efr%cT cr fcrqT ^rm nsrr 1: 5 ep sn^? t^ fci%?T ^arr 3 ^Pci 3ifriR tt i ft >^ tfr srfcm *taT g^r vJfFnf fa 50 SrfcTCcT cf5T cftef \^# frcT ^ eft 3ra ^nft ftfaraf "^ ^iMi-y 3r«rf§Rff -c?5t ^tctsj "cs^r fan wrai ^ ^5*5-^ ^ flc^cfr 3TRgFT cptfe cfr 3PxPfcT 50 yfcRTcT ftfafjff 3 > feP? t^ fci%?T ^arr 3 ^Pci 3ifriR tt i ft >^ tfr srfcm *taT g^r vJfFnf fa 50 SrfcTCcT cf5T cftef \^# frcT ^ eft 3ra ^nft ftfaraf "^ ^iMi-y 3r«rf§Rff -c?5t ^tctsj "cs^r fan wrai ^ ^5*5-^ ^ flc^cfr 3TRgFT cptfe cfr 3PxPfcT 50 yfcRTcT ftfafjff 3 > feP? ^ ?5T^f cf >T *?M: 5 cf > 3I^qTrT *f wftRcf) tt&STT % fefFTT uTPT I" 17 From a reading of the above extracted guidelines it appears that: (i) Government felt an element of urgency in the matter (ii) the requirement for achieving minimum qualifying marks for candidates was suggested to be relaxed (iii) candidates of each category, in the ratio of 1:5, were suggested to be called for physical test (iv) final result of earlier completed physical test was suggested to be declared immediately (v) simultaneously result of written test, on the basis of ratio of 1:5, in the manner described, was suggested to be declared (vi) physical test of the successful candidates on the basis of 1:5 ratio was suggested to be started immediately, and (vii) their physical test was directed to be completed within 30 days of the publication of final result of first phase. It was clarified that, (a) in the process, final result shall be published in two phases, but (b) the final merit list and inter se seniority of the successful candidates shall be determined jointly, although they may have been declared successful separately in two phases. It was also clarified that, (c) 50 per cent of the advertised vacancies should be made available to Home Guards (d) if that number of eligible Home Guards are not available to fill such vacancies, the remaining vacancies may be made available to General candidates, and (e) in this background, under each reservation category, for 50 per cent vacancies, Home Guards also in the ratio of 1:5 be called for physical test. 18. This Court requested learned Counsel for the Respondents to inform as to, out of the total candidates who were finally found eligible and qualified after PET-1, how many belonged to which category, whose results were "put on hold". 18. This Court requested learned Counsel for the Respondents to inform as to, out of the total candidates who were finally found eligible and qualified after PET-1, how many belonged to which category, whose results were "put on hold". On the basis of the figures available on record of the case, and supplied by learned Counsel for the Respondents, the following picture emerges: Non-HOME GUARD CATEGORY Total Current Vacancies 5058 Category Vacancy M/F Called for PET-1 (M/F) Cleared PET-1 Result of PET-1 Surplus Vacancy Surplus Candidates General 2180+169 = 2349 13424 2543 (?) 2086 457 (?) S.C. 747+54 = 801 1909 +14 = 1923 772 29 S.T. 03+4 = 107 120 56 52 E.B.C. 909 +60 = 969 1626 +19 = 1645 714 255 S.C. 568 +41 = 609 2024 +80 = 2104 1397 788 B.C. Woman Gorkha 139 84 11 2 139 82 Total 5058 19227 3395 (?) 2088 557 (?) 1245 (?) Home GUARD CATEGORY Total Current Vacancies 5052 Category Vacancy M/F Called for PET-1 (M/F) Result of PET-1 Vacancy/ Surplus General 2179 +169 = 2348 250 131 2217 S.C. 747+54 = 801 45+1= 46 801 S.T. 102+3 = 105 1 105 E.B.C. 908+60 = 968 36 968 B.C. 568+40 = 608 52+4= 56 608 B.C. Women 139 139 Gorkha 83 83 Total 5052 388 131 4921 (Figures may not be exact and there may be some variations in the same). 19 The above figures show that, in respect of N-H.G. category, in relation to the available vacancies, candidates almost in the ratio of 1:4 were successful in the written test and were called for PET-1. It was in respect of H.G, category that drastically less number of candidates were successful in relation to available vacancies for this quota. Figures also show that, after PET-1, for N-H.G. category, in fact, more candidates were found physically fit than the available vacancies. Figures also show that, in general category, available candidates were more than the available vacancies, but in some of the reserved categories, available candidates were a little less than the available vacancies. It was, in fact, in H.G. category, that only 131 Candidates became available against 5052 vacancies. 20. Figures also show that, in general category, available candidates were more than the available vacancies, but in some of the reserved categories, available candidates were a little less than the available vacancies. It was, in fact, in H.G. category, that only 131 Candidates became available against 5052 vacancies. 20. In terms of the Guidelines, as in Paragraph 1(Kha) and (Gha) above, the Board Was required to publish the entire result of the first phase, of all available candidates of all categories, to the extent of vacancies of each category available, and the left over vacancies [S.C.-29, S.T.-52, E.B.C.-255, B.C.(W)-139, Gorkha-82] in the category of N-H.G. and left over candidates of PET-1 of different categories (General-457 and B.C.-788) were to be clubbed with the left over vacancies of H.G. category, (5052-131= 4921) and then candidates of each category in the ratio of 1:5 were required to be called for physical test, relaxing the minimum qualifying marks for written test. This the Board has clearly not done, although there was no conceivable impediment before it for the same. It is settled law that any procedural part of an enactment is generally considered as directory, except where in the context of its consequences it may be held otherwise, whereas the substantive part of the same enactment may be mandatory. Thus, in the notification amending the Police Manual, holding of written test and physical evaluation test were mandatory parts, whereas calling candidates in the ratio of 1:5 was clearly a directory part. Hence, no illegality could be found in calling candidates in the ratio of near about 1:4 for PET-1 than in the ratio of 1:5, if lesser number of candidates had qualified in the written test. The observations in Paragraph 1 (Ka) of the Guidelines, in this regard is clearly erroneous. There was clearly substantial compliance of the provision of the Police Manual, as amended, of calling of candidates for physical test on the basis of result of written test in the ratio of 1:5. Hence, holding of PET-1, in which 5545 N-H.G. finally found eligible for 5058 vacancies (but may not be strictly category-wise), was perfectly valid and legal, and the Respondents were legally obliged to declare, the result of all the candidates found so eligible, and recommend them for appointment, subject to availability of vacancies of the quota. 21. Hence, holding of PET-1, in which 5545 N-H.G. finally found eligible for 5058 vacancies (but may not be strictly category-wise), was perfectly valid and legal, and the Respondents were legally obliged to declare, the result of all the candidates found so eligible, and recommend them for appointment, subject to availability of vacancies of the quota. 21. Now the question which requires to be considered is as to whether Sub-section (3) of Section 4 of Act 3 of 1992 could come into play in the process of selection at the second stage also or not. It is an admitted position that, for selection of candidates and calling them for PET-1, the said provision, as well as provisions of Memo No. 10258 dated, 5th August, 1991 of the Personnel and Administrative Reforms Department, prescribing for minimum percentage of marks to be secured in a competitive examination for public employment by general category candidates and different reserved category candidates, were applied by the Board, which learned Senior Counsel for the Petitioners also accepts as correct. For selection in the second phase for PET-2, the provisions of said Memo No. 10258 dated, 5th August, 1991 was relaxed by the said Guidelines dated, 4th August, 2010, but the Board, applied the Sub-section (3) of Section 4 of Act 3 of 1992 in the second phase of selection, and to prepare and publish the result of PET-2 also. Whether it could be done, is the question. 22. By Act 3 of 1992 State Government came up with a law to provide appropriate representation to Scheduled Castes, Scheduled Tribes and Other Backward Classes on posts and services under the State. Sub-section (1) of Section 4 of the same provides that 50 per cent of the vacancies are required to be filled up from open category on merits and 50 per cent vacancies are required to be filled up from reserved categories. In Sub-section (2), further break-up of the 50 per cent vacancies for reserved category has been provided, according to which scheduled castes were allotted 16 per cent seats scheduled tribes were allotted 1 per cent extremely backward category was allotted 18 per cent backward category was allotted 12 per cent and backward women were allotted 3 per cent seats, totaling to 50 per cent. Sub-section (3) lays down that, those candidates of reserved category, who are selected on the basis of their own merits, are to be counted in the general category and not in the reserved category. For better appreciation, the said Sub-section (3) is reproduced herein below: (3) ;wf&?r ^rfe $ tfwflcjciK wr are^t Jj,uiijiur ~& zwm *rc ^% ^n?t t, *^ ^ 50 y^ld RRkiiii $ ft^g 23 The above provision shows that a reserved category candidate, who is selected on his merit, and not on account of being a reserved category candidate, is to be treated as a candidate of general category and in the 50 per cent quota of vacancies for them. This pre-supposes that the concerned candidate has withstood the test of merit in an open competitive test held for all eligible candidates, and is declared successful along with general category candidates. It is admitted that this was done when the result of written test on merit was published and in which 19616 candidates were found to have passed. They were called for PET-1 and. from amongst those who were found physically fit, 2228 candidates were appointed, in which 2095 N-H.G. were general category candidates, which included many reserved category candidates also, who had found berth in the list on their own merits. 24. Now it has to be considered whether the list of 31552 candidates, which was published on 13th August, 2010, for calling them for PET-2, was on merits or not. By this list the candidates were declared successful after relaxing qualifying marks applied for the written test earlier. Out of this 31552, final result of 7879 candidates were published on 18th December, 2010. The statement of learned Senior Counsel for the Petitioners that in this list of 7879, candidate who received up to minus sixty (-60) were also included, has not been disputed by learned Counsel for the Respondents. As per the amended Police Manual, in the test of 100 questions, for every correct answer three marks (+3) was to be awarded and for every wrong answer one mark (-1) had to be deducted. The unanswered question did not carry any marks. As per the amended Police Manual, in the test of 100 questions, for every correct answer three marks (+3) was to be awarded and for every wrong answer one mark (-1) had to be deducted. The unanswered question did not carry any marks. In this manner, possible marking of the candidates in the written test could be in the following manner: Candidate Questions attempted Correct (Marks) Wrong (Marks) Total secured A 0 - - 0 B 4 1 (+3) 3(-3) 0 C 8 2(+6) 6(-6) 0 D 20 5 (+15) 15 (-15) 0 E 40 10 (+30) 30: (-30) 0 F 60 15 (+45) 45 (-45) 0 G 80 20 (+60) 60 (-60) 0 H 100 25 (+75) 75 (-75) 0 I 10 - 10(-10) -10 J 30 5 (+15) 25 (-25) -10 K 50 10 (+30) 40 (-40) -10 L 70 15 (+45) 55 (-55) -10 M 90 20 (+60) 70 (-70) -10 N 20 _ 20 (-20) -20 0 60 10 (+30) 50 (-50) -20 P 80 15 (+45) 65 (-65) 20 Q 100 20 (+60) 80 (-80) -20 R 30 - 30(-30) -30 S 45 5 (+15) 40 (-40) -30 T 70 10 (+30) 60 (-60) -30 U 90 15 (+45) 75 (-75) -30 V 40 - 40 (-40) -40 w 80 10 (+30) 70 (-70) -40 X 100 15 (+45) 85 (-85) -40 Y 80 5 (+15) 75 (-75) -60 z 100 10 (+30) 90 (-90) -60 AA 60 - 60 (-60) -60 25 The above chart is sufficient enough to make it clear how ridiculous was the attempt of the Respondents to determine the comparative merit of the candidates on the basis of negative markings, as they have claimed in Court to justify their action of invoking of the said Sub-section (3) of Section 4 of Act 3 of 1992. This Court fails to comprehend as to how comparative merit could be judged between a candidate who played safe and did not answer any question or answered very few questions, though wrongly, thus secured zero marks or very little negative marks and a candidate who attempted all the questions, answered some correctly also, but answered majority of them wrongly thus securing high negative marks. In fact, the moment the requirement of securing qualifying marks was obliterated, without wiping out the negative marks of the candidates, and they were called for physical test only on the basis of ratio of 1:5, the said Sub-section (3) became inapplicable. The last sentence of paragraph 1 (Ka) (*d*c|* >M (elRsId ^STT ef > 3TWR *TC -ilHclH yikll* eft tfPTT ^T f^Tef ^JcT f^ ¦Scfoj eftfe 3 1: 5 cfc ST^W 3 SFqfSW ^ft 311 SIR* qfTSTT %^ jeiwi vifRT) of the said Guidelines conclusively establishes that, relaxing the minimum qualifying marks, candidates in each category had to be called in the ratio of 1:5 for physical test. Admitted having done that, and having called the 31552 candidates thus, without actual and correct reflection of their comparative merit, Respondents were clearly in error in applying the said Sub-section (3) of Section 4 of Act 3 of 1992 at the stage of preparing the final result. 26. As shown in the chart above, after PET-1, availability of candidates for vacancies of N-H.G. quota was almost fulfilled, except in some categories, as shown in the chart. It was the problem of shortage of candidates for almost the entire quota for Home Guards. In fact, for 5052 vacancies of the quota, Respondents could get only 131 candidates after RET-1. Even after PET-2, for which, relaxing the minimum qualifying marks, candidates of Home Guard category also were called in the ratio of 1:5 which also had to be category-wise, only 1859 could, clear the physical test. Thus, even after all relaxation only 1990 (1859+131) Home Guards could be available against 5052 vacancies. These, vacancies, therefore, had to be transferred and filled up from N-H.G. candidates. Clear provision to meet this contingency was available in the amended Police Manual saying that ^zfT^J ^Jl? ^a^ > vj*+Tkcn STjqTcf 3 ^II^Rcb q%TT %cj 27. Thus, even after all relaxation only 1990 (1859+131) Home Guards could be available against 5052 vacancies. These, vacancies, therefore, had to be transferred and filled up from N-H.G. candidates. Clear provision to meet this contingency was available in the amended Police Manual saying that ^zfT^J ^Jl? ^a^ > vj*+Tkcn STjqTcf 3 ^II^Rcb q%TT %cj 27. So far as 85 remaining vacancies of general category of the first phase is concerned, in respect of which the Respondents have taken a stand that large number of candidates had secured equal qualifying marks in the written test, it may be pointed out that there are enough guidelines in the decisions of the Apex Court and this Court to meet the situation, wherein, the Courts have clearly held that, in case of equal qualifying marks being secured by two or more candidates with lesser number of vacancies being available, the date of birth is one of the valid criteria for selection of the candidates for appointment on the available vacancy, out of the candidates securing equal qualifying marks. Respondents should have applied their mind to this and shciuld have filled up the remaining 85 vacancies of general category also in the first stage itself from the successful candidates of the first phase in the manner laid down by judicial pronouncements and should not have left the vacancies unfilled to be clubbed with unfilled vacancies of Home Guards and to be taken up in the second phase of selection. 28. Thus, considering the entire facts and circumstances of the case, this Court finds that the Board has committed errors in complying with the guidelines dated, 4th August, 2010 issued by the Government. Clearly, the Board took into account Paragraph 1(ka) of the Guidelines alone for change in procedure, but completely overlooked the letter and spirit of Paragraph 1(kha) as made clear by first sentence of Paragraph 1(gha). Contrary to these guidelines, the Board wrongly published the result of half of the candidates, who had cleared PET-1, and kept half of the vacancies of N-H.G. quota vacant, in spite of availability of the candidates, and wrongly merged the vacancies as well as candidates of PET-1 with the vacancies and candidates of PET-2. Contrary to these guidelines, the Board wrongly published the result of half of the candidates, who had cleared PET-1, and kept half of the vacancies of N-H.G. quota vacant, in spite of availability of the candidates, and wrongly merged the vacancies as well as candidates of PET-1 with the vacancies and candidates of PET-2. Similarly, the Board committed error in applying Sub-section (3) of Section 4 of Act 3 of 1992 in the second phase of selection when, comparative merit position of the candidates, called in the second phase, in the ratio of 1:5, was not at all discernable, as demonstrated above. The Board also committed error in misreading the provisions of the Police Manual as amended by the said notification and the stipulation in last sentence of Paragraph 1 (gha) of the said Guidelines, which required the left over vacancies of Home Guards to be filled up from the candidates of that very category, as the reservation quota had already been worked out in respect of vacancies for Home Guards also, and seats for particular reservation category had also been already worked out. This Court further finds that calling of 19616 candidates found qualified in the written test for PET-1 was in substantial compliance of the requirement of calling candidates in the ratio of 1:5 and sufficient number of candidates had become available after PET-1 for filling up of almost all vacancies for N-H.G. quota, applying the reservation policy as well as said Sub-section (3) of Section 4 of Act 3 of 1992, which indeed were applied. Hence, there was no justification with the Board to publish result of only 2095 general category candidates (besides 131 Home Guards and 2 Gorkhas) and "put on hold" result of other 3317 candidates. Similarly, there was no justification with the Board to keep 85 vacancies of general category candidates unfilled on the ground of large number of candidates having secured the same marks when the date of birth of the candidate is well known accepted criterion for picking up candidates, out of those having secured same marks, for filling up available vacancies. 29. In fact, it appears to this Court that prescribing negative markings in written test and for selection of candidates for appointment of police constables, was itself, perhaps not appropriate. 29. In fact, it appears to this Court that prescribing negative markings in written test and for selection of candidates for appointment of police constables, was itself, perhaps not appropriate. Then relaxation of minimum qualifying marks of the written test to get more candidates, instead of removing the negative markings awarded to the candidates in the test was, also, perhaps, not correct. However, since no arguments have been advanced in the case from these angles, the views expressed by this Court, as above, should not be taken as findings of this Court, but only a tentative opinion. In any case, as held above, the application of said Sub-section (3) of Section 4 of Act 3 of 1992 for the second phase results, treating such defective markings as reflection of comparative merit of the candidates was definitely a mistake. 30. The Respondents have held the second phase of Physical Evaluation Test and have selected candidates and out of the candidates found physically fit, have already published the result of 7879 candidates on 18th December, 2010. Therefore, this Court does not consider it appropriate to quash the entire list on account of above discussed infractions committed by the Respondents in the selection process. However, this Court directs the Respondents to re-draw the final result of selected candidates on the basis of two stages of Physical Evaluation Test separately. Accordingly, result of all the remaining candidates of PET-1 must be published separately and they must be recommended for appointment against remaining available vacancies of different category out of 5058 vacancies allotted to the quota of N-H.G. Thereafter only remaining vacancies out of 5058 be filled up category-wise from the candidates of respective category who may have cleared the PET-1. Similarly, the remaining vacancies of H.G. category shall thereafter be filled up strictly from the candidates of respective category becoming available after PET-2, in which the left over candidates of PET-1, who may have been found surplus, and the left over vacancies of PET-1 shall also be taken into account strictly as per their category and ranking in the merit list of written test. The separate lists in the above manner shall be drawn and finally published by the Respondents within 1 month from the date of receipt/production of a copy of this order. 31. When this case was taken up on 21st September, 2010, learned Counsel for the Petitioners prayed for interim relief. The separate lists in the above manner shall be drawn and finally published by the Respondents within 1 month from the date of receipt/production of a copy of this order. 31. When this case was taken up on 21st September, 2010, learned Counsel for the Petitioners prayed for interim relief. However, instead of restraining the Respondents from making appointments, a Bench of this Court observed that "any appointment made during the pendency of the writ petition, in so far as it may prejudice the Petitioner at the time of final decision, shall not be an impediment for grant of final relief to the Petitioner". Case was thereafter directed to be listed on 28th October, 2010 for final disposal. The result of PET-2 was published on 18th December, 2010 recommending 7879 candidates for appointment. Thereafter, matter was taken up on 20th December, 2010 when the same was brought to the notice of. this Court. As the said result had been published during the pendency of the writ application, this Court directed that "vacancies shall not be filled up pursuant to the result published on 18th December, 2010". Hence, this Court is of the view that no right has accrued to any of the candidates declared successful and recommended by the said result dated, 18th December, 2010 which may have necessitated any opportunity to him of hearing in this matter. In any case, the said result dated, 18th December, 2010 has not been quashed by this Court and the Respondents have only been directed to re-draw the results in the manner indicated, which does not prejudice any candidate at this stage. 32. Since individual cases of the Petitioners and interveners have not been considered in these cases, no specific direction is being issued in respect of any of them. It goes without saying that, in the re-drawn lists of the first phase of selection or of the second phase of selection, if any of them comes within the zone of consideration, his result shall also be declared and he shall also be recommended for appointment. 33. All the writ applications, and all pending l As. are, thus, disposed of with the aforesaid observations and directions.