CAV JUDGMENT All these writ applications arise out of same set of facts pertaining to selection and appointment on the post of Junior Engineer for which the Bihar Staff Selection Commission (hereinafter to be referred as ‘the Commission’) had issued advertisement no.1906 dated 29.11.2006 in respect of 2058 posts of Junior Engineer (Civil) and 74 post of Junior Engineer (Mechanical). The Commission in terms of advertisement had conducted a written examination in two subjects namely General Knowledge and Civil/Mechanical Engineering on 12.7.2007 and had declared 874 candidates successful on the basis of aggregate marks secured by them in both the subjects. Subsequently the Commission had sent its recommendation on 2.4.2012 to the State Government for appointment on 800 posts of Junior Engineer (Civil) and 74 on the post of Junior Engineer (Mechanical). The said recommendation however on examination by the State Government was not accepted and the matter was referred back to the Commission with certain objections in the letter dated 23.5.2012 of the Principal Secretary of the Water Resources Department requesting the Commission to make its fresh recommendation after considering the objections. The Commission, thereafter, had made a fresh recommendation on 1.6.2012, whereby and whereunder, it had confined its recommendation for appointment of 392 candidates only on the post of Junior Engineer by revising its earlier result on the basis of candidates securing minimum cut off mark in both the subjects of examination separately. The petitioners are amongst those 874-392=482 left out candidates of the aforesaid bunch of 874 candidates in the recommended list of the Commission dated 2.4.2012 who have not found place in the revised recommendation of the Commission dated 1.6.2012 confining the recommendation in respect of only 392 candidates. 2. Thus, the prayer of all the 110 petitioners in these batch of nine writ applications is also one and same, namely, quashing of the letter of the Principal Secretary of the Water Resources Department dated 23.5.2012 and issuing a direction to the State Government to appoint those petitioners in terms of the earlier recommendation in their favour sent by the Commission on 2.4.2012. 3. From the pleadings in all these writ applications, it is apparent that the petitioners have primarily raised the issue of jurisdiction of the State Government as with regard to seeking review of the recommendation made by the Commission on 2.4.2012. 3. From the pleadings in all these writ applications, it is apparent that the petitioners have primarily raised the issue of jurisdiction of the State Government as with regard to seeking review of the recommendation made by the Commission on 2.4.2012. An ancillary attack has also been made by the petitioners in all these cases on the role of the Commission and the Government in adopting varying standards in respect of selection on the post of Junior Engineer as against three advertisements issued in the year 2006 for the same post of Junior Engineer in 2006 namely advertisement no. 1006 dated 26.5.2006, advertisement no. 1406 dated 14.8.2006 and advertisement in the case of the petitioners bearing no. 1906 dated 29.11.2006. 4. The main plank of the submission of the learned counsel for the petitioners in all these writ applications in this regard is that when the State Government had already accepted the recommendation of the Commission in respect of advertisement no.1006 dated 26.5.2006 as also in respect of advertisement no. 1406 dated 14.8.2006 and had made appointment of 160 Junior Engineers as against the first advertisement and 210 Junior Engineer as in respect of second advertisement, there could not have been any different standard adopted either by the Commission or by the State Government in respect of the recommendation and appointment relating to advertisement of the petitioners being advertisement no. 1906 dated 29.11.2006 for the same post of Junior Engineer specially when the Commission itself in keeping with the past practice of the aforesaid two advertisements had again made its recommendation on 2.4.2012 for 800 posts of Junior Engineer (Civil) and 74 post of Junior Engineer (Mechanical). In this regard, the petitioners have assailed the decision of the Commission of fixing the separate minimum cut-off of marks in the two subjects of written examination of General Knowledge and Civil/Mechanical Engineering and their case in this regard is that the aggregate marks secured by them in both the subjects should have been made the basis for their selection and recommendation as was in fact also done by the Commission while sending its recommendation on 2.4.2012 wherein the petitioners were shown to have secured the cut-off as prescribed in the government resolution dated 22.12.1990 and 5.8.1991 which were in vogue at the time of issuance of the advertisement of the petitioners dated 29.11.2006. Their further case in this regard is that the concept of minimum cut off of passing marks in two subjects of written examination separately on the basis of which they and others got disqualified, was both contrary to the terms of advertisement as also in teeth of the Government Resolution dated 22.12.1990. 5. On the other hand, learned counsel for the State having filed its counter affidavit in CWJC No. 16616 of 2012, which is the main case containing all the relevant pleadings of the parties, has taken a categorical stand that on receipt of the recommendation of the Commission dated 2.4.2012 by the State Government it was found that a large number of candidates among the 874 persons recommended by the Commission had performed miserably and had secured marks in their main subject of Engineering even in minus and, therefore, the Government had requested the Commission to re-examine its recommendation whereafter the Commission by its letter dated 1.6.2012 had revised its recommendation limiting it to only such 392 candidates who had secured the minimum cut off passing marks in both the subjects of the written examination separately and the same was accepted by the State Government and on the basis of which appointments were also made by the State Government on 392 posts of Junior Engineer.. 6. The Commission on its part has also filed its separate counter affidavit wherein it has been explained that while it is true that the Commission after conducting the written examination on 12.7.2007 had declared the result of the advertisement in question dated 29.11.2006, on 5.1.2012 and also had sent its recommendation on 2.4.2012 in respect of 874 candidates but when the objection of the State Government against such recommendation was received, the matter was once again reexamined and the Commission had decided that only such candidates who had secured minimum cut-off marks for the respective category in both the subjects separately could be recommended and as such, by its revised recommendation dated 1.6.2012, it had limited the recommendation only against 392 posts of Junior Engineer inasmuch as, only 392 candidates had secured the cut-off marks separately in both the subjects of written examination i.e. General Knowledge and the subject of Civil/Mechanical Engineering. 7. 7. From the aforesaid pleadings followed by the submission of the learned counsel for the parties, the main issue for the consideration is as to whether the Commission could not have fixed separate cut-off marks for each of the two subjects when the Government resolution dated 22.12.1990 had only fixed percentage of the total marks obtained by a candidate in the written examination? 8. In the considered opinion of this Court, the norms of selection has to be invariably laid down in the recruitment rules. There is, however, no recruitment rule in the case of posts of Junior Engineer prescribing either holding of written test or fixing any cut-off marks. In absence of rules, the executive instruction could have also filled up the gap but there is also no executive instruction fixing the norms of selection for the post of Junior Engineer. In fact, it is the resolution of the State Government dated 22.12.1990 prescribing such cut off for all written examination for different posts being filled on the recommendations of Bihar Public Service Commission and Bihar Staff Selection Commission which is the sheet-anchor of the submission of both the parties. In fact, it is the resolution of the State Government dated 22.12.1990 prescribing such cut off for all written examination for different posts being filled on the recommendations of Bihar Public Service Commission and Bihar Staff Selection Commission which is the sheet-anchor of the submission of both the parties. The said government resolution dated 22.12.1990 thus being relevant and crucial is quoted hereinbelow:- ^^¼fcgkj ljdkj] dkfeZd ,oa iz'kklfud lq/kkj foHkkx] Kkikad 7@pŒiŒ1&101@88 ¼[k.M½ dkŒ 15838] fnukad 22 fnlEcj] 1990 dh izfrfyfi½ fo”k;%& fcgkj yksd lsok vk;ksx rFkk fcgkj jkT; voj lsok p;u i”kZn }kjk vk;ksftr fofHkUu izfr;ksfxrk ijh{kkvksa ds fy, U;wure vgZrkad ¼fefuee DokyhQkbZax ekDlZ½ dk leku :i ls fu/kkZj.kA fcgkj yksd lsok vk;ksx rFkk fcgkj jkT; voj lsok p;u i”kZn~ }kjk le;≤ ij jkT; ljdkj ds v/khu jktif=r ,oa vjktif=r inksa ij fu;qfDr gsrq ;ksX; mEehnokjksa ds ukeksa dh vuq'kalk mu iz;kstuksa ds fy, vk;ksftr izfr;ksfxrk ijh{kkvksa ds ifj.kke ds vk/kkj ij dh tkrh gSA vk;ksx rFkk i”kZn~ dh izfr;ksfxrk ijh{kkvksa esa lQyrk izkIr djus ds fy, vyx&vyx dksfV ds mEehnokjksa ds fy, U;wure vgrkZad vyx&vyx fu/kkZfjr FkkA ljdkjh dkedkt es n{krk ds Lrj dks cuk;s j[kus ds fy, ;g vko';d le>k x;k fd lHkh izdkj ds inksa ij fu;qfDr;ksa ds fy, vk;ksx rFkk i”kZn }kjk vk;ksftr izfr;ksfxrk ijh{kkvksa ds U;wure vgrkZad esa le:irk j[kh tk;s vkSj O;kIr vlekurk dks lekIr fd;k tk;sA 2- vr% fnukad 14-10-1988 dh cSBd esa eaf=ifj"kn~ dh Lohd`fr izkIr dj jkT; ljdkj ds dkfeZd ,oa iz'kklfud foHkkx ds ladYi l[;k 12892] fnukad 29-10-1988 }kjk fcgkj yksd lsok vk;ksx rFkk fcgkj jkT; voj lsok p;u i”kZn }kjk vk;ksftr lHkh izfr;ksfxrk ijh{kkvksa ds fy, fofHkUu dksfV ds mEehnokjksa ds fy, leku :i ls U;wure vgrkZad fuEu :i ls fu/kkZfjr djus dk fu.kZ; fy;k x;k%& ¼1½ vuqlwfprtkfr@tutkfr ,oa efgyk oxZ & 33 1@2 izfr'kr ¼2½ fiNM+k oxZ ,usDlpj&1 & 35 izfr'kr ¼3½ lkekU; dksfV & 40 izfr'kr 3- ckn esa ;g vko';d le>k x;k fd lkekU; dksfV ,oa fiNM+k oxZ ds fy, vyx&vyx vgZrkad gksuk pkfg,A rn~uqlkj lE;d~ fopkj dj ¼fnukad 4&9&1990 dh cSBd esa eaf=ifj"kn~ dh Lohd`fr izkIr dj½ jkT; ljdkj us izR;sd dksfV ds mEehnokjksa ds fy, iqujhf{kr vgZrkad fuEu izdkj j[ks tkus dk fu.kZ; fy;k gS%& ¼d½ lkekU; oxZ & 40 izfr'kr ¼[k½ fiNM+k oxZ & 36-5 izfr'kr ¼x½ fiNM+k oxZ ¼,usDlpj&1½ & 34 izfr'kr ¼?k½ vuqlwfpr tkfr@tutkfr ,oa efgyk oxZ & 32 izfr'kr** (Underlining for emphasis) 9. As would be evidenced from reading of the aforesaid resolution dated 22.12.1990, the State Government had fixed the minimum qualifying marks in respect of the written examination conducted by the Bihar Public Service Commission and Bihar Staff Selection Commission. In fact, the said resolution when it fixes minimum qualifying marks of 40% for general category, 36.5% for backward category, 34% for backward category and 32% for schedule caste and scheduled tribe and female of the reserved category, it only seeks to achieve the minimum qualifying marks of the written examination. It does not say anything more much less fixes the cut-off for recommendation based on the aggregate of marks secured in the written examination involving two or more subjects of such written examination. The subsequent government resolution dated 5.8.1991 or for that purpose, the clarification issued by the circular dated 16.7.2007 also in this regard does not override the government resolution dated 22.12.1990 and thus, on the basis of the contents of these circulars, one thing becomes very clear that the Commission while holding the written examination and declaring the result as also sending its recommendation cannot recommend a candidate who has not secured the minimum cut-off percentage in the written examination. 10. It is here that the role of the Commission becomes important and the Commission for that very purpose had made it clear in the advertisement dated 29.11.2006 that the examination will be held in two subjects out of which general knowledge will be compulsory in addition to one optional subject of either Civil Engineering or Mechanical Engineering for the candidates applying for the post of Junior Engineer (Civil)/Junior Engineer (Mechanical). The advertisement also had made it clear that an examination of multiple choice question answer will be held and for each correct answer, the candidate will be given 1 mark whereas 0.5 marks will be deducted for a wrong answer. Thus, in the advertisement, there was no indication that any and every candidate securing the minimum cut-off in the two subjects together in aggregate will be recommended. In fact, it is the petitioners’ own assumption that if the written examination was taken by the Commission in two subjects, they in terms of the Government resolution dated 22.12.1990 having secured in aggregate, the minimum cut-off marks fixed in the government resolution dated 22.12.1990 will be deemed to have qualified. 11. In fact, it is the petitioners’ own assumption that if the written examination was taken by the Commission in two subjects, they in terms of the Government resolution dated 22.12.1990 having secured in aggregate, the minimum cut-off marks fixed in the government resolution dated 22.12.1990 will be deemed to have qualified. 11. It is here again that this Court would find considerable merit in the objection of the Government. The Government on receipt of the result and the recommendation sent by the Commission on 2.4.2012 had found that a large number of candidates had performed miserably and in fact had secured marks in minus in their main subject of Engineering and yet were recommended. The Government, being the appointing authority, had, therefore, a right to question such recommendation of the Commission and in fact, if the Government could have rejected the entire recommendation of the Commission as a whole and could have asked for a fresh selection to be undergone even that was very much permissible. Law in this regard is well settled that the recommendation of the Commission is not binding on the appointing authority and for a valid reason, the appointing authority can refuse to accept such recommendation made by the Commission. Reference in this connection made be usefully made to the judgment of the Apex Court in the case of Shankaran Dash Vs. Union of India reported in 1991(3) SCC 47 . 12. Reference in this connection made be usefully made to the judgment of the Apex Court in the case of Shankaran Dash Vs. Union of India reported in 1991(3) SCC 47 . 12. Thus, this Court does not find any error in the decision of the State Government which had on receipt of the recommendation of the Commission dated 2.4.2012 had returned the recommendation of the Commission by its letter dated 23.5.2012 in the following terms:- ^^fcgkj ljdkj ty lalk/ku foHkkxA izs"kd] vQty vekuqYykg] iz/kku lfpoA lsok esa] lfpo] fcgkj deZpkjh p;u vk;ksx] iksLV&HksVujh dkWyst] iVuk&14 iVuk] fnukd& 23-5-12 fo"k;%& duh; vfHk;ark ¼vlSfud½ ds in ij lh/kh fu;qfDr gsrq fcgkj deZpkjh p;u vk;ksx] iVuk ds i=kad&1744@vkŒ fnukad 02-04-2012 }kjk izkIr vuq'kalk ij iqufoZpkj djus gsrq okil djus ds laca/k esaA egk'k;] funs'kkuqlkj mi;qZDr fo”k; ds laca/k esa dguk gS fd duh; vfHk;ark ¼vlSfud½ ds in ij lh/kh fu;qfDr gsrq vkids i=kad&1744@vkŒ fnukad 02-04-2012 }kjk izsf"kr vuq'kalk esa fuEukafdr fcUnqvksa ij vk;ksx dk /;ku vkd`”V fd;k tkrk gS rFkk erO; dh vis{kk gS%& ¼1½ lanfHkZr vuq'kalk esa flfoy loxZ ds vurxZr oSls vH;FkhZ Hkh vuq'kaflr gS] ftUgsa ewy fo”k; vFkkZr vlSfud vfHk;a=.k esa _.kkRed vad izkIr gq, gSA mnkgj.k Lo:i dzekad&513 ,o 546] 'kwU; ls 10 izfr'kr ds chp dqy 07 vH;FkhZ gS] 10 ls 20 izfr'kr ds chp dqy 36 vH;FkhZ gS vkSj 33 izfr'kr ls uhps dqy 292 vH;FkhZ gSA Li"V gS fd vk;ksx }kjk lkekU; Kku ,o vlSfud vfHk;a=.k dks tksM+rs gq, ijh{kkQy fudkyk x;k gS ftlds dkj.k oSls vH;FkhZ dks lQy ?kksf"kr fd;k x;k gS ftUgsa vlSfud vfHk;a=.k ds fo"k; vis{kkd`r vR;ar de vad izkIr gq, gS tcfd dk;Z foHkkxksa esa ewyr% vlSfud vfHk;a=.k dk dk;Z fd;k tkuk gSA ¼2½ dkfeZd ,oa iz'kklfud lq/kkj foHkkx ds ladYi lŒ&2374 fnukad 16-07-2007 ds vkyksd es lkekU; oxZ ds fy, U;wure vgZrkad&40 izfr'kr fu/kkZfjr gSA oSlh fLFkfr esa dzekad 543 ls uhps ds vH;fFkZ;ksa dks Hkh lkekU; oxZ ds jSad esa j[kk tkuk vkj{k.k ds izko/kku ds vuq:i ugha gSA bl dzekad ds uhps ds vH;fFkZ;ksa dks vkj{k.k ds izko/kku ds vuqlkj vkj{k.k oxZ es fu/kkZfjr izfr'kr ds v/khu gh vk;ksx }kjk vuq'kalk ij fopkj fd;k tkuk visf{kr FkkA vr,o mi;qZDr i`PNkvksa ds fujkdj.k gsrq duh; vfHk;ark ¼vlSfud½ laoxZ dh izkIr lHkh vuq'kalk,¡] ewy vkosnu i= ¼vksŒ,eŒvkjŒ½] vkbZŒlhŒvkjŒ] vH;fFkZ;ksa ds izek.k&i=ksa ,o fyQkQk lfgr ;Fkkor~ okil dh tkrh gSA vuqyXud& ;FkkdfFkrA fo'oklHkktu gŒ@& ¼vQty vekuqYykg½ iz/kku lfpoA** 13. The submission of the learned counsel for the petitioners in this regard that since the names of the petitioners were already recommended by the Commission in the list of 874 candidates dated 2.4.2012, the same could not have been returned by the State Government to the Commission has to be only noted for its being rejected. The petitioners at best were only empanelled candidates and, therefore, if the recommendation of the Commission was not binding on the Government, the same also did not create any vested right or give rise to any legitimate expectation to the petitioners as was also held in the case of Hanuman Prasad & Ors. Vs. Union of India & Anr. reported in 1996(10) SCC 742 . 14. This Court however in order to satisfy itself had directed the counsel for the Commission to submit the details of the marks secured by the petitioners in all these cases and when the same was produced, its correctness by and large has been accepted by the petitioners with some minor variations vide Annexure 23 to supplementary affidavit filed by the petitioners in C.W.J.C. No. 16616/2012. The details of the marks of the petitioners produced by the Commission is reproduced hereinbelow: C.W.J.C. No. 12121/2012 Sl. Roll No. Petitioner's Name Father's Name DOB Cat. The details of the marks of the petitioners produced by the Commission is reproduced hereinbelow: C.W.J.C. No. 12121/2012 Sl. Roll No. Petitioner's Name Father's Name DOB Cat. Marks obtained No. G.K. Civil Total 1 004659 Brajesh Kumar Late Chandrewar 03.01.69 BC 28.00 45.50 73.50 Prasad 2 002667 Vinay Kumar Dew Narayan Singh 15.12.79 BC 49.00 28.00 77.00 3 001934 Sudhir Kumar Ram Bhajan Prasad 15.11.75 SC 55.50 15.50 71.00 4 002736 Vivek Kumar Rajesh Kumar 10.01.87 BC 62.00 27.50 89.50 5 000876 Ram Briksh Prasad Babu Lal Prasad 05.08.68 BC 78.50 27.50 106.00 6 003466 Ramesh Kumar Late Bachhu Prasad 10.01.74 BC 49.00 29.00 78.00 7 000121 Anil Kumar Paswan Ram Baran Paswan 15.07.74 SC 50.00 19.50 69.50 8 003871 Shambhu Prasad Baldeo Prasad 10.11.75 BC 65.00 33.00 98.00 9 000890 Randhir Kumar Pankaj Kumar 17.06.83 BC 61.00 34.50 95.50 10 002095 Kumar Einstin Ashok Prasad 31.01.86 MBC 45.00 30.50 75.50 11 002211 Kapil Muni Chandrika Prasad 15.11.66 BC 60.00 26.50 86.50 12 003995 Sumit Kumar Arvind Kumar 01.12.86 BC 55.50 21.50 77.00 13 003505 Shailendra Kumar Rajendra Singh 30.12.82 BC 56.50 33.00 89.50 14 002663 Vikash Kumar Singh Ram Nagina Singh 03.12.83 BC 48.00 30.50 78.50 15 004924 Pradeep Kumar Hari nandan Prasad 30.04.78 BC 51.00 29.00 80.00 16 003314 Jitendra Kumar Birendra Kumar 05.02.78 BC 51.50 24.00 75.50 17 002818 Sunil Kumar Siya Sharan Rajak 09.06.77 SC 43.00 31.50 74.50 18 003588 Atul Kumar Singh Raghunandan Pd. 18.02.78 BC 58.00 24.00 82.00 Singh 19 001444 Kumar Dhiraj Late Rama Shankar 23.02.84 SC 51.00 23.00 74.00 Ram 20 002200 Ganesh Kumar Ramdev Prasad 03.12.84 BC 42.50 33.50 76.00 C.W.J.C. No. 14132/2012 1 000507 Rajeev Ranjan Singh Ram Kailash Singh 01.01.70 GEN 62.00 28.50 90.50 2 003938 Abhinandan Kumar Babu Lal Prasad 05.06.73 BC 58.00 33.50 91.50 3 001891 Vijay Kumar Ramswaroop Singh 01.02.70 GEN 55.00 39.00 94.00 4 002096 Kumari Madhu Prem Chandra Sahni 01.10.77 MBC 37.50 27.50 65.00 5 002727 Sanjiv Sinha Late Parmanand 31.12.69 BC 50.50 33.50 84.00 Sinha 6 001404 Nikhil Kumar Anil Kumar Singh 06.05.83 GEN 62.00 22.50 84.50 7 001737 Neeraj Kumar Bilashdeo Pd. Yadav 05.09.78 BC 55.00 29.00 84.00 8 003411 Sudhir Kumar Yogendra Singh 19.01.73 GEN 52.00 34.50 86.50 9 001684 Sanjeev Kumar Rameshwar Prasad 12.06.78 MBC 31.50 38.00 69.50 10 002549 Shashi Kant Singh Shashi Ramchandra 07.07.81 MBC 53.00 25.00 78.00 Pd. Yadav 05.09.78 BC 55.00 29.00 84.00 8 003411 Sudhir Kumar Yogendra Singh 19.01.73 GEN 52.00 34.50 86.50 9 001684 Sanjeev Kumar Rameshwar Prasad 12.06.78 MBC 31.50 38.00 69.50 10 002549 Shashi Kant Singh Shashi Ramchandra 07.07.81 MBC 53.00 25.00 78.00 Pd. Singh C.W.J.C. No. 14709/2012 1 003885 Satish Kumar Shiv Ram Yadav 05.12.71 BC 45.00 33.00 78.00 2 002619 Saket Kumar Late Dargehi Mahto 01.07.79 BC 56.00 26.00 82.50 3 003728 Rakesh Kumar Yadu Nanda Singh 01.03.77 BC 00.00 00.00 0.00 4 004250 Sanjay Keshav Mahadeo Mehta 30.06.76 BC 50.00 28.50 78.50 5 003223 Rajesh Kr. Yadav Nawal Kishore 28.01.80 BC 39.00 34.00 73.00 Yadav C.W.J.C. No. 16616/2012 1 001659 Ratan Kumar Ram Rup Mandal 14.03.76 MBC 51.00 25.00 76.00 2 002497 Shrinivas Kumar Gena Singh 31.12.76 ST 86.00 23.00 109.00 3 000206 Ashok Kumar Singh Sri Garbhu Pd. Singh 19.01.79 ST 29.50 37.50 67.00 4 002040 Tara Nand Singh Yogendra Nr. Singh 25.12.77 ST 38.00 26.50 64.50 5 001765 Raghunath Roy Fudena Roy 04.03.72 BC 60.00 30.00 90.00 6 002461 Shaligram Pd. Ram Nath Prasad 15.01.80 ST 44.00 85.50 129.50 Mandal Mandal 7 004538 Ajay Kumar Sheoraj Prasad 12.11.76 BC 49.00 29.00 78.00 8 003272 Anil Kumar Nayak Late Birendra Pd. 20.01.67 BC 43.50 30.00 73.50 Nayak 9 001294 Arjun Pd. Gupta Late Narayan Saw 26.01.70 BC 50.50 33.00 83.50 10 004620 Manoj Kumar Upendra Prasad Sah 07.01.81 GEN 50.50 30.50 81.00 11 002437 Prakash Kumar Basudeo Ravidash 10.05.74 SC 44.00 24.50 68.50 12 003353 Kaushlendra Kumar Raghunandan Prasad 26.01.72 BC 51.50 35.50 87.00 13 001415 Pankaj Kumar Sakaldeo Singh 02.01.71 GEN 51.00 32.00 83.00 14 003898 Sanjay Kumar Kamal Narayan 02.06.72 SC 69.00 20.00 89.00 Mishra 15 000503 Ravi Ranjan Kr. Upendra Narayan 09.10.70 GEN 51.50 25.00 86.50 Singh Singh 16 003249 Satyendra Nr. Singh Kameshwar Prasad 26.11.66 BC 33.00 49.50 82.00 C.W.J.C. No. 17206/2012 1 004522 Vijay Kumar Singh Jagnarajan Singh 15.03.69 BC 47.00 36.00 83.00 2 001463 Jitendra Kr. Upendra Narayan 09.10.70 GEN 51.50 25.00 86.50 Singh Singh 16 003249 Satyendra Nr. Singh Kameshwar Prasad 26.11.66 BC 33.00 49.50 82.00 C.W.J.C. No. 17206/2012 1 004522 Vijay Kumar Singh Jagnarajan Singh 15.03.69 BC 47.00 36.00 83.00 2 001463 Jitendra Kr. Shiv Charan 15.07.78 SC 45.50 23.50 69.00 Chaudhary Chaudhary 3 000160 Gyan Chandra Judagi Chaudhary 20.07.76 SC 44.00 23.00 67.00 Chaudhary 4 002856 Upendra Kumar Harshu Paswan 05.08.83 SC 55.00 28.00 83.00 5 000428 Amar Kumar Girish Kumar Singh 01.03.82 BC 66.50 11.50 78.00 6 003808 Girindra Kumar Kedar Prasad Mehta 01.02.80 GEN 35.50 49.50 85.00 7 002743 Ashok Kumar Alok Chhedi Sahni 04.01.76 MBC 43.50 26.00 69.50 8 000396 Satyendra Kumar Surain Singh 11.02.73 BC 69.00 34.50 103.50 9 001692 Sanjay Kumar Baleshwar Singh 31.07.78 MBC 35.50 33.50 69.00 10 002139 Niraj Kumar Karu Ram 25.04.83 MBC 59.00 31.50 90.50 11 003208 Sanjeev Kumar Sachida Nand Singh 07.09.70 GEN 44.00 28.50 72.50 12 002178 Bhaskar Prasad Mahabir Prasad 24.02.68 BC 59.50 23.00 82.50 13 Mritunjay Kumar 14 001238 Gajendra Kumar Pal KarmDeo Bhagat 08.09.82 MBC 62.00 19.00 81.00 15 000294 Santosh Kumar Chamk Lal Yadav 14.03.78 GEN 44.50 35.50 80.00 Pankaj 16 002149 Prabhat Kr. Ranjan Ram Lakhan Sahu 27.09.78 MBC 40.00 31.50 71.50 17 002829 Surendra Kumar Maro Rajak 15.01.80 SC 43.50 23.50 67.00 18 004337 Manuhar Kr. Ram Bahadur Sah 20.12.80 BC 53.00 20.00 73.00 Priyadarshi 19 001273 Sanjit Kumar Shiv Nandan Prasad 05.07.76 BC 0.00 0.00 0.00 Prabhakar 20 001062 Arun Kumar Mahawal Chaudhary 25.06.83 SC 42.00 26.00 68.00 21 001056 Anil Paswan Lakhee Paswan 19.03.81 SC 46.50 22.50 69.00 22 001098 Hira Sankar Kumar Krisha Deo Paswan 02.05.81 SC 0.00 0.00 0.00 23 001535 Ram Balak Paswan Samoli Paswan 12.10.64 SC 39.00 25.50 64.50 24 002071 Bipin Bihari Kr. Rama Shankar 15.10.84 MBC 44.00 25.50 69.50 Vikal Prasad 25 001472 Kanhaiya Pd Dinkar Ram Ekbal Ram 11.06.65 SC 48.50 24.50 73.50 26 004843 Rajesh Ranjan Naresh Prasad 29.08.83 BC 44.00 33.50 77.50 27 003566 Prabhawati Kumari Pradyumna Prasad 03.01.76 MBC 27.50 43.50 71.00 28 003974 Ramesh Kr Gupta Gorakh Nath Prasad 02.12.77 BC 40.00 36.00 76.00 29 004911 Manish Kr Sinha Late Umesh Prasad 30.03.80 BC 45.00 28.50 73.50 C.W.J.C. No. 18574/2012 1 002354 Dinesh Nath Paswan Dwarika Paswan 06.10.65 SC 50.50 20.00 70.50 2 004829 Sunil Kumar Matukdhari Singh 23.10.69 GEN 70.50 15.50 86.00 3 000566 Parash Nath Ram Ram Dayal Ram 02.05.70 SC 40.00 30.00 70.00 4 003476 Rajesh Kumar Jaganath Raut 05.08.78 BC 52.00 21.50 73.50 Mahesh 5 000782 Sanjay Kumar Singh Late Heera Singh 30.01.79 MBC 61.00 28.50 89.50 6 002103 Kamendra Sah Subhag Sah 05.12.73 MBC 48.50 21.50 70.00 7 001702 Jeetendra Pd Gupta Nathuni Sah 22.01.76 BC 52.50 29.00 81.50 8 003811 Jaibind Kr Ranjan Mahendra Prasad 11.11.73 GEN 63.50 19.00 82.50 9 004590 Failz Akram Md. Serajuddin 06.02.76 GEN 49.50 33.00 82.50 10 002518 Raj Kumar Sah Late Kaleshwar Sah 02.01.69 MBC 62.50 15.00 77.50 11 004037 Sheo Kumar Late Sukhadeo Singh 15.01.71 GEN 49.00 31.50 80.50 12 001263 Sidheshwar Pd. Late Parsadi Mahto 11.02.68 BC 52.00 26.00 78.00 13 002792 Ram Chandra Pd. Late Raghunandan 08.01.77 SC 37.50 27.00 64.50 Ram 14 003889 Suresh Kumar Late Parmeshwar 20.11.73 BC 53.50 34.50 88.00 Ray 15 002107 Kuljeet Singh Balrup Singh 02.01.82 MBC 46.50 31.00 77.50 16 003622 Suresh Yadav Sita Ram Chaudhary 02.03.70 BC 23.00 73.50 96.50 17 000189 Mukesh Kumar Mundrika Ram 06.02.79 SC 45.50 18.00 63.50 C.W.J.C. No. 19674/2012 1 003205 Surendra Prasad Late Ram Balak 05.05.70 GEN 52.50 27.50 80.00 Singh Singh 2 002682 Anand Kumar Jitendra Prasad 30.12.72 BC 61.00 31.00 92.00 3 004266 Sarita Kumari Nawal Kishore 04.01.80 BC 27.50 39.50 67.00 Prasad 4 003380 Suraj Nandan Kr. Late Harinandan 30.12.70 BC 53.00 28.50 81.50 Singh Singh 5 004649 Anil Kumar Singh Late Rasik Bihari 02.01.68 BC 33.50 56.50 92.00 Singh 6 003471 Ranjit Kr Verma Late Ayodhya 15.08.74 BC 50.50 24.50 75.00 Prasad C.W.J.C. No. 21948/2012 1 004076 Kanchan Kumari Ramji Prasad Singh 02.07.84 BC 56.50 29.00 85.50 2 002234 Niranjan Kr. Singh Kamleshwar Pd. Late Harinandan 30.12.70 BC 53.00 28.50 81.50 Singh Singh 5 004649 Anil Kumar Singh Late Rasik Bihari 02.01.68 BC 33.50 56.50 92.00 Singh 6 003471 Ranjit Kr Verma Late Ayodhya 15.08.74 BC 50.50 24.50 75.00 Prasad C.W.J.C. No. 21948/2012 1 004076 Kanchan Kumari Ramji Prasad Singh 02.07.84 BC 56.50 29.00 85.50 2 002234 Niranjan Kr. Singh Kamleshwar Pd. 05.10.77 BC 62.50 26.50 89.00 Singh 3 001443 Jay Prakash Ram Balsharan Mochi 22.12.77 SC 47.50 18.50 65.50 4 002017 Rajesh Kumar Amin Prasad 01.08.78 ST 51.00 28.00 79.00 Mandal 5 002874 Vijay Kr. Mandal Dharmdeo Mandal 15.02.85 ST 73.50 26.00 99.50 6 002024 Ravindra Kr. Mandal Moti Lal Mandal 02.02.80 ST 44.00 21.50 65.50 C.W.J.C. No. 21139/2012 1 000818 Krishn Nandan Saw Babu Lal Saw 04.01.67 BC 41.50 34.00 75.50 15. It has to be noted that the correctness of the aforesaid chart has been disputed by filing of a supplementary affidavit on 11.2.2013 in CWJC No. 16616 of 2012 in respect of few petitioners wherein it has been stated as follows:- “4. That it is further stated that the commission in compliance of the directions of the Hon’ble Court provided marks of the writ petitioners. After perusal of the merit list of 800 successful candidates provided by the commission and the marks list of the writ petitioners it appears that there is large number of mistakes and errors found in the marks in writ petition bearing C.W.J.C. No. 166616/2012. The Roll number of petitioner namely Shaligram Mandal is wrongly mentioned as 2461 in place of 2453 and his marks is also wrongly mentioned as 44+85.50=129.50 in place of 22+84=106. In C.W.J.C. No. 14709 of 2012 the petitioner namely Rakesh Kumar, his Roll number wrongly mentioned as 3728 in place of 4468 and marks is wrongly mentioned as (0) Zero in Civil Engineering and (0) Zero in General Knowledge in place of 54.5+33.5=88. In C.W.J.C. No. 12121 of 2012 the date of birth of petitioner namely Vinay Kumar is wrongly mentioned as 15.12.1979 in place of 05.12.79. In C.W.J.C. No. 17206 of 2012, the roll number is wrongly mentioned as 1273 in place of 2633 and marks is wrongly mentioned as (0) Zero in place of 41+35=76 and Roll number of petitioner Hira Shankar Kumar is wrongly mentioned as 1098 in place of 2374 and his marks is also wrongly mentioned as (0) Zero in place of 57.50+25.50=83.” 16. The petitioners of CWJC No. 16616 of 2012 have also claimed that petitioner no.5 of CWJC No. 19674 of 2012, namely, Anil Kumar Verma had obtained 35.50 in General Knowledge as against 33.50 shown in the chart filed by the Commission. Similarly, in the case of Sanjeev Kumar petitioner no.11 of CWJC No. 17206 of 2012, it has been claimed that not only his roll number but even his date of birth as also marks shown by the Commission is incorrect and it has been claimed that he had obtained only 38.50 in the subject of General Knowledge and 76 in Civil Engineering as against 44 and 28.50 respectively shown in the chart produced by the Commission. Similar mistake have been also pointed out in the chart of the Commission of Sanjit Kumar Prabhakar petitioner no.19 of C.W.J.C. No. 17206 of 2012 who is shown to have obtained 0 (zero) marks both in the subject of General Knowledge and Civil Engineering whereas the petitioners of CWJC No. 16616 of 2012 have claimed that he (Sanjit Kumar Prabhakar) had actually secured 41 and 35 marks in the subject of General Knowledge and Civil Engineering respectively. In the likewise manner, in the same supplementary affidavit, it has been claimed that Hira Sankar Kumar petitioner no.22 of CWJC No. 17206 of 2012 had been not only shown to have given incorrect roll number 1098 in place of 2370 but even his marks of 0 (zero) in both the subjects was incorrect, inasmuch as, according to the petitioners he had secured 57.50 in General Knowledge and 25.50 in Civil Engineering. The same supplementary affidavit also describes a similar mistake of roll number in the case of petitioner no.3 of CWJC No. 14709 of 2012 by claiming his roll number actually 4468 in place of 3728 and that he had also secured 54.5 marks in the subject of General Knowledge and 33 marks in the Engineering paper as against 0 (zero) shown in both the subjects in the chart produced by the Commission. 17. 17. Inasmuch as, this supplementary affidavit in C.W.J.C. No. 16616/2012 was filed on the last day of the hearing when the judgment was reserved i.e. on 11.2.2013, these facts could not be further verified but on a closer scrutiny, even if the claims of the petitioners of CWJC No. 16616 of 2012 as stated in their last supplementary affidavit dated 11.2.2013 as quoted above is accepted, the same would not make any material difference in the ultimate result, inasmuch as even on the basis of marks shown by the petitioners in supplementary affidavit none of the aforesaid petitioners could have been declared successful because prima facie they do not appear to have obtained the minimum cut off marks separately in both the subjects of written examination. 18. This Court, however, must note that there has been a conflicting claim in support of Shaligram Prasad Mandal, petitioner no.6 of CWJC No. 16616 of 2012. The chart of marks of the petitioners produced by the Commission goes to show that petitioner no.6 of CWJC No. 16616 of 2012 had secured 44 marks in General Knowledge and 85.50 marks in the subject of Civil Engineering but the petitioners in their supplementary affidavit claim that he had obtained only 22 marks in General Knowledge and 84 marks in Civil Engineering. This mystery however gets clarified from the counter affidavit filed in C.W.J.C. No. 21139 of 2012 where the State Government has produced documents sent by the Commission alongwith recommendation on 2.4.2012 and 1.6.2012 that it was another Shaligram Prasad Mandal whose name was included in the first recommendation dated 2.4.2012 at serial no.129 with his roll number as 002461 and was shown to have secured rank Gen.-129 and category rank ST-8. When the revised recommendation was made by the Commission confining it to 392 candidate on 1.6.2012, his name was again included at serial no. 129 with roll no. 2461 and also shown to have secured 44 marks in General Knowledge and 85.5 marks in the subject of Civil Engineering. In the revised recommendation also, he was placed at Gen-129 and category rank ST-8. In fact, on the basis of such revised recommendation, when the government had appointed all the 392 candidates, Shaligram Prasad Mandal was also sought to be appointed in the Road Construction Department vide letter no. In the revised recommendation also, he was placed at Gen-129 and category rank ST-8. In fact, on the basis of such revised recommendation, when the government had appointed all the 392 candidates, Shaligram Prasad Mandal was also sought to be appointed in the Road Construction Department vide letter no. 4191 dated 20.6.2012 issued by the Engineering-in-Chief of Water Resources Department advising Principal Secretary of the Road Construction Department to appoint 68 Junior Engineers in the lot of 392 recommended candidates by the Commission in its letter dated 1.6.2012 and in the same also the roll number of aforesaid Shaligram Prasad Mandal was shown as 2461. It has thus becomes clear that there were two different persons having identical name of Shaligram Prasad Mandal and bearing roll no. 2453 and another roll no. 2461. In fact, CWJC No. 16616 of 2012 was filed on 6.9.2012 and, therefore, if the petitioner no.6 had already been appointed under the aforesaid order of the Engineer-in-Chief of the Water Resources Department, the nodal agency, there was no reason for him also file a writ application, inasmuch as, he had not only been recommended by the Commission but had also been appointed. 19. From the records, it is also found that Shaligram Prasad Mandal bearing roll no. 2461 who had secured 44 marks in General Knowledge and 85.5 marks in the subject of Civil Engineering and was placed at serial 129 whereas petitioner no.6 the another Shaligram Prasad Mandal having roll no. 2453 placed at serial no. 213 of the recommended list dated 2.4.2012 had secured 22 marks in General Knowledge and 84 marks in the Civil Engineering and ultimately was not recommended in the revised recommendation dated 1.6.2012 and, therefore, this Court must hold that when the petitioner no.6 of CWJC No. 16616 of 2012 has also produced his Admit Card showing his roll number as 2453 vide Annexure-2 series to the writ application, he is not the same Shaligram Prasad Mandal who has been recommended by the Commission on 1.6.2012 and has been appointed as Junior Engineer in the Road Construction Department on 20.6.2012. This Court in absence of the another Shaligram Prasad Mandal bearing roll no. This Court in absence of the another Shaligram Prasad Mandal bearing roll no. 2461 as respondent would not like to make any further comment but would definitely direct the Commission to once again examine this mystery of two Shaligram Prasad Mandal having also identical parentage i.e. father’s name of both being Ram Nath Prasad Mandal with roll number 2453 and 2461 in order to get itself satisfied that the revised recommendation which was made in favour of the Shaligram Prasad Mandal having roll no. 2461 with marks of 44 in General Knowledge and 85.5 in the Engineering paper is a correct recommendation and has not been in any way mixed up with the case of petitioner no.6. For the time being, this Court would however proceed on the basis of the averments made by the petitioner in the supplementary affidavit that the petitioner no.6 of CWJC No. 16616 of 2012 is the Shaligram Prasad Mandal who had obtained 22 marks in General Knowledge and 84 marks in the subject of Civil Engineering and to that extent, the chart of marks produced by the Commission which has been also appended with the corrections by hand as Annexure-23 to the supplementary affidavit filed by the petitioner of CWJC No. 16616 of 2012 is incorrect. 20. On perusal of the details of the marks secured by the petitioners, it is therefore found that out of 110 petitioners barring petitioner no.16 Suresh Yadav in CWJC No. 18574 of 2012, Petitioner nos. 3 & 5, namely, Sarita Kumari and Anil Kumar Singh in CWJC No. 19674 of 2012, petitioner no.6 & 27, namely, Girindra Kumar and Prabhawati Kumari in CWJC No. 17206 of 2012, petitioner nos.3, 6 & 16 namely Ashok Kumar Singh, Shaligram Prasad Mandal and Satyendra Narayana Singh respectfully in CWJC No. 16616 of 2012, petitioner no.1 Brajesh Kumar of CWJC No. 12121 of 2012, none of the rest of 101 petitioners out of total 110 petitioners in these nine writ petitions had even secured the minimum cut-off marks in the subject of Civil Engineering. Even if the case of the petitioners in CWJC No. 16616 of 2012 in their last supplementary affidavit is accepted to be correct, only one more petitioner, namely, petitioner no.11 of CWJC No. 17206 of 2012 can be said to have secured more than minimum cut-off marks in the subject of Civil Engineering but then all the aforesaid ten persons to the exception of petitioner no.6 of CWJC No. 16616 of 2012 namely Shaligram Prasad Mandal can be said to have obtained minimum cut-off marks in the subject of General Knowledge. 21. Thus, this Court would not find any error in not recommending the names of the petitioners, inasmuch as, even when the aforesaid ten petitioners in the batch of nine writ applications, out of total 110 petitioners, had secured the minimum qualifying marks in the subject of Engineering, they could not obtain the qualifying makes in the subject of General Knowledge. As noted above, rest of the petitioners have not secured even minimum cut off qualifying marks in either of the two subjects. 22. It has to be kept in mind that these Junior Engineers were supposed to discharge the duty of work relating to engineering and if they could not even get the minimum qualifying marks in their subject of Engineering for their respective category as fixed in the Government resolution dated 22.12.1990, their names could not have recommended by making aggregate of their marks of engineering subject with the subject of general knowledge. 23. The evaluation of merit of a candidate appearing in the written competition examination has to be essentially assessed on the basis of their marks secured in all the subjects and, therefore, once a minimum cut-off marks of the written examination is prescribed, that has to be essentially obtained by all the candidates otherwise it may lead to an absurd situation resulting into appointment of incompetent and meritless candidates. 24. The minimum cut-off, therefore, prescribed in the government resolution dated 22.12.1990 in the written examination cannot be read as an aggregate for all the subjects in which case a candidate securing 80 out of 100 in General Knowledge and even 0 in a subject of Engineering could claim selection and appointment on the post of Junior Engineer. 24. The minimum cut-off, therefore, prescribed in the government resolution dated 22.12.1990 in the written examination cannot be read as an aggregate for all the subjects in which case a candidate securing 80 out of 100 in General Knowledge and even 0 in a subject of Engineering could claim selection and appointment on the post of Junior Engineer. When, the government resolution dated 22.12.1990 fixes the minimum qualifying marks in the written examination to be conducted by the Bihar Public Service Commission and Bihar Staff Selection Commission it essentially envisages that the candidate must secure the minimum cut-off marks in each of the subject of the written examination. If, therefore, the Commission has ultimately understood the scope of the government policy brought into force by its resolution dated 22.12.1990, this Court would be absolutely loathe in making a judicial review of it, inasmuch as, the Apex Court has repeatedly held that the courts are not concerned with the practicality or wisdom of the policy but only illegality. In the case of Directorate of Film Festivals & Ors. Vs. Gaurav Ashwin Jain & Ors. reported in 2007(4) SCC 737 the Apex Court in this regard had held as follows:- “16. … Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.” 25. In fact, this very aspect of the matter with regard to fixation of cut-off marks in each of the subject relating to a similar rule of obtaining 50% marks in the written examination was also gone into by the Apex Court in an exactly identical case of Director General, Telecommunication & Anr. Vs. T.N. Peethambaram reported in (1986)4 SCC 348 , wherein it was held as follows:- “Fails” in one subject, but “passes” the examination! Vs. T.N. Peethambaram reported in (1986)4 SCC 348 , wherein it was held as follows:- “Fails” in one subject, but “passes” the examination! It is not a tongue-in-the-cheek remark, for, passing an examination does not mean passing or securing the minimum passing marks in each subject or item of examination provided the candidate secures the minimum passing marks in aggregate, and he is entitled to be declared as having passed the examination according to the Central Administrative Tribunal (Tribunal hereafter), Hyderabad, which has upheld the aforesaid proposition canvassed by the respondent. The validity of this view is in focus before this Court in the present appeal by special leave. 2. Rule 2 in Appendix III of the Telegraph Engineering Service (Group “B”) Recruitment Rules, 1981, for Limited Departmental Qualifying Examination, in the context of which the controversy has arisen, reads thus: 2. Limited Departmental Competitive Examination: (i)(a) Advanced Technical Paper — General . . 100 marks (b) Advanced Technical Paper — Special . . 100 marks (c) General Knowledge and Current Affairs . . 50 marks (d) Assessment of Confidential Reports. . 75 marks (ii)(a) The minimum pass marks in the examination shall be 50 per cent for general candidates and 45 per cent for Scheduled Castes and Scheduled Tribe candidates. This rule was interpreted by the concerned department as requiring the candidates to secure 50 per cent minimum pass marks for the general candidates and 45 per cent minimum pass marks for Scheduled Castes and Scheduled Tribes in “each” of the four subjects or items The Tribunal has taken the view that the department was wrong in so interpreting the Rule and has formed the opinion that on a true interpretation, the requirement as regards securing minimum pass marks in the examination by the candidates concerned is referable to “aggregate” marks and not to each of the four subjects or items of the examination. It has been overlooked by the Tribunal that the “rule” does not employ the expression “aggregate”, and that it is impossible to inject the said word in the Rule in the disguise of interpretation, as it would lead to absurd results. An illustration will make the “obvious” point “more obvious”. The illustration might be viewed in the scenario of a medical degree examination. An illustration will make the “obvious” point “more obvious”. The illustration might be viewed in the scenario of a medical degree examination. Can one who secures zero, say in surgery, but secures high marks in the other papers, so that the minimum aggregate standard is attained, be declared to have passed the examination? Such an interpretation would result in havoc and have catastrophic consequences. Examining the examination rule in the present context, the nihilist result is equally conspicuous. Say, a candidate secures zero in the first paper of Advanced Technology (General), or second paper of Advanced Technology (Special), but secures full marks in the rest of the subjects (or items). He would be securing (0 plus 100 plus 50 plus 75) or (100 plus 0 plus 50 plus 75) (equal to 225 i.e. 56.25 per cent) minimum passing marks and would be entitled to be declared as having passed and having become entitled to the out flowing preferential treatment. Similar would be the outcome also in a case where a candidate's Confidential Record is bad and he earns no point in that item. Such an interpretation would thus be self-defeating and lead to absurd results, and accordingly, would be contrary to well established canons of construction, not to speak of a common-sense-oriented approach. Since the Rule does not specify a different passing standard for “each” subject, the prescribed minimum passing standard must be the yardstick to apply to each of the subjects or items. Minimum must mean a minimum in each, as much as, minimum in aggregate. The Tribunal should not have therefore upset the decision of the concerned department and imposed on the department the mistaken interpretation propounded by it. In the result, the decision of the Tribunal must be reversed.” (Underlining for emphasis) 26. Even recently in the case of Sanchit Bansal & Anr. Vs. Joint Admission Board & Ors. reported in 2012(1) SCC 157 while approving the separate minimum cut-off marks for the subject of Physics, Chemistry and Mathematics, it had been held as follows:- 27. Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialised courses, are all technical matters in academic field and the courts will not interfere in such processes. Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialised courses, are all technical matters in academic field and the courts will not interfere in such processes. The courts will interfere only if they find all or any of the following: (i) violation of any enactment, statutory rules and regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious. 28. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide. 27. In view of the aforesaid judgment of the Apex Court, this Court does not find the fixation of 40% or 36/5% or 34% or 32% marks minimum qualifying marks separately for the written examination subject, of General Knowledge and Engineering as per the government resolution dated 22.12.1990 for the candidates of general, backward, most backward and scheduled caste/tribe categories respectively to be arbitrary, inasmuch as, the same seeks to achieve a specific objective in furtherance of the object selection of meritorious candidates for the post of Junior Engineers as laid down in the resolution dated 22.12.1990 which in fact also adopts a uniform process and is non-discriminatory in nature. 28. It is true that the Commission and the Government had earlier not applied this yardstick for the earlier recommendation and selection made and the petitioners in this regard have given an instance of some of the appointments made on the post of Junior Engineers without following the spirit of the government resolution dated 22.12.1990 but then the right to equality under Article 14 is a positive concept and cannot be enforced in a negative manner. This Court, therefore, cannot become a party in perpetuating the illegality which was committed in course of earlier selection and appointment on the post of Junior Engineer. This aspect of matter is well settled in catena of the decisions of the Apex Court including in the case of Gurusharan Singh & Ors. Vs. New Delhi Municipal Committee & Ors. Reported in (1996)2 SCC 459 laying down the law in the following words:- “There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.” 29. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.” 29. Explaining further this very concept of equality under Article-14 of the Constitution of India, the Apex Court in the case of Gaurav Ashwin Jain (supra) had also laid down a guideline for the High Court exercising the power of Article 226 in the following terms:- “22. When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law.” 30. Reference in this connection may also be usefully made to the judgment of Apex Court in the case of State of Kerala & Ors. Vs. K. Prasad & Anr. reported in (2007)7 SCC 140 relevant portion whereof reads as follows:- 13. We may now deal with the plea of the respondents that they have been discriminated against. It is true that Article 14 of the Constitution embodies a guarantee against arbitrariness but it does not assume uniformity in erroneous actions or decisions. It is trite to say that guarantee of equality being a positive concept, cannot be enforced in a negative manner. It is true that Article 14 of the Constitution embodies a guarantee against arbitrariness but it does not assume uniformity in erroneous actions or decisions. It is trite to say that guarantee of equality being a positive concept, cannot be enforced in a negative manner. To put it differently, if an illegality or irregularity has been committed in favour of an individual or even a group of individuals, others, though falling in the same category, cannot invoke the jurisdiction of the writ courts for enforcement of the same irregularity on the reasoning that the similar benefit has been denied to them. Any direction for enforcement of such claim shall tantamount to perpetuating an illegality, which cannot be permitted. A claim based on equality clause has to be just and legal. 14. Dealing with such pleas at some length, this Court in Chandigarh Admn. v. Jagjit Singh [ (1995)1 SCC 745 ] has held that: (SCC p. 750, para 8) “If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court [under Article 226] cannot be exercised for such a purpose.” (emphasis in original) This position in law is well settled by a catena of decisions of this Court. (See Secy., Jaipur Development Authority v. Daulat Mal Jain [ (1997)1 SCC 35 ] and Ekta Shakti Foundation v. Govt. of NCT of Delhi.) [ (2006)10 SCC 337 ] It would, thus, suffice to say that an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities.” 31. In view of the aforesaid judgments of the Apex Court, it has to be essentially held that guarantee of equality before law enshrined under Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. 32. A judicial forum cannot be used to perpetuate the illegalities.” 31. In view of the aforesaid judgments of the Apex Court, it has to be essentially held that guarantee of equality before law enshrined under Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. 32. This Court, however, would not like to say anything more, inasmuch as, it is the case of the petitioners themselves that the appointment on the post of Junior Engineers made pursuant to the earlier advertisement no. 1406 dated 14.8.2006 is still subjudice before the Apex Court and thus, anything said about those appointment may prejudice the persons who have been appointed and are at present before the Apex Court. 33. This Court is also not impressed with the submissions of the learned counsel for the petitioners that the ratio of the case of P. Mahendran & Ors. Vs. State of Karnataka & Ors. reported in AIR 1990 SC 405 in any way would be applicable to the facts of the present case. In the present case, as noted above, there is no rule prescribing the mode of selection on the post of Junior Engineer based on an aggregate in the written examination, therefore, if the Commission has uniformly adopted the principle of fixing the minimum qualifying marks in the written examination in the subjects of General Knowledge and Engineering, that cannot be said to be amendment in the norms of selection procedure or the rules relating to selection and recommendation. 34. The long and short of these cases, therefore, is that once the Government in its letter dated 23.5.2012 had pointed out the obvious discrepancy in the earlier recommendation of the Commission dated 2.4.2012, the Commission had examined the same and had corrected its earlier recommendation by strictly observing the spirit of the Government resolution dated 22.12.1990 while sending its revised recommendation on 1.6.2012. The reliance placed by the learned counsel for the petitioners on the Division Bench Judgment of this Court in the case of Upendra Narayan Pandit & Ors. Vs. The State of Bihar & Ors. reported in 2002(3) PLJR 50 wherein the effect of the government resolution dated 22.12.1990 has been considered is wholly misplaced. The reliance placed by the learned counsel for the petitioners on the Division Bench Judgment of this Court in the case of Upendra Narayan Pandit & Ors. Vs. The State of Bihar & Ors. reported in 2002(3) PLJR 50 wherein the effect of the government resolution dated 22.12.1990 has been considered is wholly misplaced. In fact, in that case there was a statutory rules prescribing the mode of manner of appointment on the post of Drug Inspector in which there was no specific provision made for the candidates of backward category because those rules were framed in the year 1989 at a point of time when the reservation for the backward category had not come into force. However, in course of time, when such reservation for backward category was given, the selection on the basis of aforesaid government resolution dated 22.12.1990 fixing the minimum cut-off mark for the backward category was approved while holding that the said resolution was only filling up the gap and supersede the statutory Drug Inspector Recruitment Rules, 1989. This Court would fails to understand as to how the ratio of the said judgment in the case of Upendra Narayan Pandit (supra) can be made applicable to the facts of the present case. 35. Finally, this Court also must notice the submission of the learned counsel for the petitioners as with regard to the past practice in giving effect to the government resolution dated 22.12.1990. It has been contended on the basis of the judgment of the Apex Court in the case of State of Uttar Pradesh & Anr. Vs. Santosh Kumar Mishra & Anr. reported in 2010(9) SCC 52 that because both the Commission and the State Government in past in relation to the advertisement no. 1006 dated 26.5.2006 and advertisement no. 1406 dated 14.8.2006 for the post of Junior Engineer had fixed the minimum qualifying marks by taking into account the aggregate of both the subjects of General Knowledge and Engineering the past practice could not have been divorced in the case of the petitioners. 36. 1006 dated 26.5.2006 and advertisement no. 1406 dated 14.8.2006 for the post of Junior Engineer had fixed the minimum qualifying marks by taking into account the aggregate of both the subjects of General Knowledge and Engineering the past practice could not have been divorced in the case of the petitioners. 36. This Court on a careful consideration of the aforesaid submissions would find that the ratio of the case of Santosh Kumar Mishra (supra) also will not be applicable for a simple reason because in that case, it was held by the Apex Court that the appointment on Pharmacist was being made on the basis of the year of passing of the examination and in fact when the case of the petitioner Santosh Kumar Mishra and a few others was being considered, they were not appointed in the first transaction because persons of the senior batch had only been appointed but when their turn for appointment on the basis of date of passing of the examination came, the said practice was not followed by State Government of Uttar Pradesh. It was in this regard that it was held by the Apex Court that since they were also earlier denied the benefit of appointment on the basis of existing rules, they could again not be denied the benefit of the same rule when their turn had come. This becomes clear from the following passage of the judgment:- “41. It is on account of a deliberate decision taken by the State Government that the private respondents were left out of the zone of consideration for appointment as Pharmacists in order to accommodate those who had obtained their diplomas earlier. The decision taken by the State Government at that time to accommodate the diploma-holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the disadvantage of those who had been deprived of an opportunity of being appointed by virtue of the same Rules. In our view, the same decision which was taken to deprive the private respondents from being appointed, could not now be discarded, once again to their disadvantage to prevent them from being appointed, introducing the concept of merit selection at a later stage. The same may be introduced after the private respondents and those similarly situated persons have been accommodated. 42. The same may be introduced after the private respondents and those similarly situated persons have been accommodated. 42. The various decisions cited by Ms Dikshit are of little help to the case of the petitioners. The facts in Suraj Parkash Gupta [ (2000)7 SCC 561 ] bear no comparison to the facts at issue in these special leave petitions. There can be no divergence of opinion with regard to the principles of law laid down in the said decision, but the same was referred to in the facts of that case, where it was held that in the absence of any provision for rotation in the Rules, the same could not be claimed on the basis of the past practice. 43. As indicated hereinbefore, in this case a certain set of rules were applied in a manner which deprived the private respondents of an opportunity to be considered for appointment as Pharmacists, despite having acquired the requisite qualification and being deprived of appointment once again by discarding the same rules to their detriment. In our view, the decision in N. Suresh Nathan [1992 Supp(1) SCC 584] is more apposite to the facts of this case. Of course, this is not a case for applying the “doctrine of past practice” alone, in addition, this is a case which involves the deprivation of certain candidates by application of the procedure differently at two different points of time.” 37. Thus, the aforesaid doctrine of past practice in the case of Santosh Kumar Mishra (supra) also cannot come to the rescue of the petitioners because they were not earlier disqualified on the basis of subject-wise minimum qualifying marks. In fact, their case is that if such an illegality was committed in the case of the other persons by recommending and appointing despite not obtaining minimum qualifying marks in each of the two subjects, that practice should have been also followed even in the case of the petitioners. That, however, is not permissible as it is well settled by now that right under Article 14 cannot be enforced in a negative manner for perpetuating any illegality. 38. As a matter of fact, from the affidavit of the Commission, it is also clear when advertisement no. That, however, is not permissible as it is well settled by now that right under Article 14 cannot be enforced in a negative manner for perpetuating any illegality. 38. As a matter of fact, from the affidavit of the Commission, it is also clear when advertisement no. 411 dated 8.6.2011 was issued for the post of Junior Engineer and for which a written test was held on 9.9.2012, the Commission while declaring its result on 20.1.2013 had also followed the same procedure of declaring only those candidates for the post of Junior Engineer to be successful who had secured the minimum cut-off marks in the written examination of both the subjects of General Knowledge and Engineering separately. It would thus be difficult for this Court to hold that what has been done in respect of the advertisement, in question, advertisement no. 1906 dated 29.11.2006 or in case of advertisement no. 411 dated 8.6.2011 for declaring only those candidates to be successful who had separately secured the minimum cut-off mark in the written examination of both the subjects of General Knowledge and Engineering to be bad only because in respect of two earlier advertisements no. 1006 dated 26.5.2006 and 1406 dated 14.8.2006, this practice was not followed. 39. As noted above, for all the four examinations, the same government resolution dated 21.12.1990 was to be taken into consideration and if on account of a wrong interpretation by the Commission, the recommendations were made by taking an aggregate of the two subjects of the written examination in respect of two of them which was/is contrary to the provisions specified in the government resolution dated 21.12.1990, this Court cannot issue a direction to the Commission to commit same error for recommending the names of the candidates of the advertisement no. 1906 dated 29.11.2006 including the petitioners of these nine writ petitioners for the post of Junior Engineer on the basis of aggregate marks secured by them in the written examination of both the subjects which in effect would amount to perpetuating illegality. 1906 dated 29.11.2006 including the petitioners of these nine writ petitioners for the post of Junior Engineer on the basis of aggregate marks secured by them in the written examination of both the subjects which in effect would amount to perpetuating illegality. The government resolution dated 21.12.1990 while laying down the norms and methodology of the minimum cut-off marks in written examination talks only of the ^^izfr;ksfxrk ijh{kk^^ i.e. competitive examination" and does not specify a different standard for each subject and, therefore, attaining the prescribed minimum passing standard in the written examination in both the subjects separately has to be applied as was also clearly held and explained by the Apex Court in the case of T.N. Peethambaram (supra) laying down that “minimum must mean minimum in each as much as minimum in aggregate”. 40. This Court, therefore, must also reject the plea of past practice for declaring the petitioners successful and recommending the names for appointment on the post of Junior Engineer in respect of advertisement no. 1906 dated 29.11.2006. 41. In view of the aforesaid discussion, this Court would conclude its findings in the following terms:- (a) The Commission’s earlier recommendation dated 2.4.2012 based on an aggregate of the marks secured in the written examination of both the subjects of General Knowledge and Civil Engineering was contrary to the provisions made in the government resolution dated 21.12.1990 and was rightly not acted upon by the State Government by appointing of 874 candidates so recommended by the Commission. (b) The State Government being the appointing authority had definitely a right to ask the Commission to make a fresh recommendation and its letter dated 23.5.2012 addressed to the Commission in this regard was not only within jurisdiction vested in an appointing authority while dealing with the recommendation of the Commission but also in the public interest which requires that only meritorious candidates fit for the job should be appointed in the government service. (c) The Commission’s consequential action of sending the revised recommendation dated 1.6.2012 limiting its recommendation to 374 candidates who had secured the minimum cut-off qualifying marks in the written examination of both the subjects of General Knowledge and Civil Engineering separately is in conformity with the requirement of government resolution dated 21.12.1990. (c) The Commission’s consequential action of sending the revised recommendation dated 1.6.2012 limiting its recommendation to 374 candidates who had secured the minimum cut-off qualifying marks in the written examination of both the subjects of General Knowledge and Civil Engineering separately is in conformity with the requirement of government resolution dated 21.12.1990. (d) None of the petitioners having secured minimum qualifying marks in both the subjects of the written examination namely General Knowledge and Engineering separately could be recommended by the Commission and appointed by the State Government on the post of Junior Engineer. (e) This Court in exercise of power under Article 226 of the Constitution of India also cannot direct the Commission and the State Government to perpetuate the illegality which was committed by the Commission and the Government in making/accepting the recommendation in respect of two earlier advertisements nos. 1006 dated 26.5.2006 and 1406 dated 14.8.2006 as they themselves were in complete contravention to the object and intent of the government resolution dated 21.12.1990. 42. Thus, for the reasons indicated above, this Court does not find any merit in these writ applications and they are fit to be dismissed. 43. Before parting with, this much is made clear that notwithstanding dismissal of these writ applications, it will be still open for the petitioner no.5 of CWJC No. 19674 of 2012 namely, Anil Kumar Singh, petitioner no.11 Sanjeev Kumar and petitioner no.19 Sanjit Kumar Prabhakar of CWJC No. 17206 of 2012 as well as petitioner no.6 of CWJC No. 16616 namely Shaligram Prasad Mandal and petitioner no.3 namely Rakesh Kumar of CWJC NO. 14709 of 2012 to demonstrate before the Commission that they have actually secured the minimum qualifying marks in both the subjects separately alike 374 candidates who were recommended on 1.6.2012 by the Commission and that they are also entitled to be recommended for their appointment on the principles adopted by the Commission while recommending 374 candidates. In the event, the aforesaid petitioners would file their representation seeking modification of recommendation in their cases, the Commission shall examine their grievance with the help of the connected records and take a decision within a period of three months from the date of receipt of this order. In the event, the aforesaid petitioners would file their representation seeking modification of recommendation in their cases, the Commission shall examine their grievance with the help of the connected records and take a decision within a period of three months from the date of receipt of this order. It is, however, made clear that if the Commission would recommend any one or more of the petitioners named above in this paragraph, the State Government will do the needful by appointing them. It goes without saying that if the Commission would reject their representation, reasons for the same shall also be communicated to the aforesaid petitioners within the same period of time. This limited liberty has been given to them on account of the mistake pointed out in the supplementary affidavit filed on 11.2.2012 in CWJC No. 16616 of 2012 as with regard to their marks produced in the chart produced by the learned counsel for the Commission giving detailed breakup of the marks of all the petitioners in the batch of these nine writ applications. 44. Subject to the aforementioned observations and direction, all these writ applications are dismissed. 45. There would be, however, no order as to costs.