Holding

Rule 5A(3) is struck down as arbitrary and violative of the Supreme Court's Malik Mazhar Sultan precedent.

Summary

The petitioners challenged Rule 5A(3) of the Bihar Civil Service (Judicial Branch) Recruitment Rules, 1955, which limited the number of candidates called for the final written examination to 10% of those who appeared in the preliminary test. They argued that the rule violated the Supreme Court's decision in Malik Mazhar Sultan v. Uttar Pradesh Public Service Commission (2008), which requires a 1:10 ratio of vacancies to successful candidates after the preliminary exam. The Court held that fixing the number of candidates at 10% of the total appeared was arbitrary, unreasonable and contrary to the earlier precedent, thereby striking down the provision. The lack of a prescribed minimum passing mark in the preliminary exam was noted but not held to invalidate the exam. The Court also dismissed the petitioners' claim regarding horizontal reservation for women. Consequently, the petitions were allowed and the date of the final written examination was extended to allow for necessary arrangements.

Issues considered

Whether Rule 5A(3) of the Bihar Civil Service (Judicial Branch) Recruitment Rules, 1955, is constitutionally valid under Article 32 of the Constitution of India in view of the Supreme Court's decision in Malik Mazhar Sultan v. Uttar Pradesh PSC.
Whether the absence of a minimum passing mark in the preliminary examination renders the rule invalid.
Whether the petitioners are entitled to horizontal reservation for women candidates.

Legislation cited

Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955s. Rule 5A(3)
Constitution of Indias. Article 32

Subjects

constitutional validityrecruitment rulespreliminary examinationcandidate ratioarbitrary and unreasonableArticle 32civil service examreservationhorizontal reservationSupreme Court precedent

Judgment

1060 SUPREME[2019]
COURT REPORTS
3 S.C.R. 1060 [2019] 3 S.C.R.

A RAHUL DUTTA & ORS.
v.
THE STATE OF BIHAR & ORS.
(Writ Petition (C) No. 71 of 2019)
B FEBRUARY 14, 2019
[ARUN MISHRA AND NAVIN SINHA, JJ.]
Bihar Civil Service (Judicial Branch) (Recruitment) Rules,
1955:
C r.5A(3) – Constitutional validity of – Challenged in writ
petition u/Art. 32 of Constitution – Held: Rule 5A(3) provides that
10% of the total number of candidates appeared in preliminary
exam are to be called for final written exam – While in Malik
Mazhar’s case it was held that declaration of result of the preliminary
written exam for calling candidates for final written exam has to be
D in the ratio of 1:10 of the available vacancies to the successful
candidates – Rule 5A is in violation of what has been laid down in
Malik Mazhar’s case – Fixation of 10% of the total number
appeared candidates is otherwise also arbitrary and unreasonable
as the same substantially restricts the number of candidates to stake
E their claim in the final exam – There is yet another glaring error in
the rule that no minimum passing marks have been prescribed in
preliminary exam – However, for the exam in question, it would not
be appropriate to fix the marks after the exam was over – Cut off
marks provided for the main exam are not going very low and is
reasonable, and hence the deficiency in the rule, of not prescribing
F minimum passing marks in the preliminary exam, would not cause
any invalidity in the present exam – The provision contained in r.
5A(3) is struck down – In view of the fact that the State Government
has suggested amendment in the Rules and the same is pending,
other questions are not dilated upon – Under the present order,
G since candidates equal to 10 times of the vacancies have to be called,
for which time is required for making arrangements, date of exam
is extended from 20.2.2019 to a date within six weeks from the date
of present judgment i.e. 14.2.2019 – Petitions are allowed.
Malik Mazhar Sultan (3) and Another v. Uttar Pradesh
Public Service Commission and Others (2008) 17 SCC
H 703 – relied on.
1060
RAHUL DUTTA & ORS. v. THE STATE OF BIHAR & ORS. 1061

Case Law Reference A
(2008) 17 SCC 703 relied on Para 3
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
71 of 201.
[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA] B
With
W.P. (C) Nos. 92, 158, 179 of 2019.
Gopal Shankaranarayanan, Ms. Pooja Dhar, Ms. Gayatri Verma,
Ms. Aishwarya Kane, Rakesh Kumar, Sanjay Yadav, Rahul Kumar,
C
Bishwabandhu, Ms. Nabila Hasan, Satya Mitra, Kshatrshal Raj,
Vishal Prasad, Ms. Tanya Chaudhry, Ms. Pragtyusha Priyadarshini (for
M/s. Parekh & Co.), Navin Prakash, Keshav Mohan, Rishi K. Awasthi,
Prashant Kumar, Santosh Kumar-I, Advs. for the appearing parties.
The following Judgment of the Court was delivered :
D
1. Writ Petition ….(Diary No.5352/2019) is taken on Board.
2. In the writ petitions filed under Article 32 of the Constitution of
India, with respect to the examination of Civil Judge (Junior Division)
the candidates are aggrieved by action that has been taken to call 10%
of the candidates who have appeared in the preliminary examination E
would qualify for the final examination.
3. Their main submission is that as per the decision of this Court
in Malik Mazhar Sultan (3) and Another v. Uttar Pradesh Public Service
Commission and Others, (2008) 17 SCC 703, vacancies have to be filled
up by holding preliminary examination and then final written examination F
followed by viva voce. As per the directions issued by this Court, for the
purposes of Civil Judge (Junior Division) by direct recruitment, declaration
of the result of the preliminary written examination for calling candidates
for final written examination has to be in the ratio of 1:10 of the available
vacancies to the successful candidates.
G
4. Rule 5A of The Bihar Civil Service (Judicial Branch)
(Recruitment) Rules, 1955 (hereinafter referred to as ‘the Rules’) has
been inserted vide Notification dated 28.12.2016, same is extracted
hereunder:-

H
1062 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “5A. (1) The Commission may take a Preliminary Test in the
event of the number of eligible candidates to be admitted to the
written examination being, in its judgment, inordinately large.
(2) The Preliminary test shall comprise two papers –
Paper I of General Studies carrying 100 marks, and Paper II of
B Law carrying 150 marks. The papers will consist of objective
questions of multiple choice, one being the correct answer.
OMR Answer Sheets shall be used and evaluated by computer in
the Commission’s premises. The Syllabi for the two papers shall
be the same as prescribed for General Knowledge and General
Science and the Law Papers in the written examination,
C respectively.
(3) Eligible candidates for the written examination shall
be selected on the basis of the result of the Preliminary Test, to
the extent of 10% of the total number of appeared candidates,
rounded off to the nearest hundred; and all candidates obtaining
D equal marks as the last candidate’s shall also qualify for the written
examination;
Provided that in the event of candidates from the
reserved categories, other than the General category, falling short
of the percentages fixed for them in the State Government Services
E under the relevant Act vis-a-vis the total number of successful
candidates in the Preliminary Test, so many candidates from those
categories shall be additionally included, to the extent of the deficit,
as per their respective merit, in the list of the successful candidates
to take the written examination.”
F 5. No doubt about it that Rule 5A(3) clearly provides that only
10% of the total number of candidates appeared have to be called for
final written examination as per the rounding off provided in rule 5A(3)
of the Rules.
6. After hearing learned counsel for the parties at length, we are
G of the considered opinion that the aforesaid Rule 5A is in violation to
what has been laid down by this Court in Malik Mazhar Sultan (supra).
In which this Court has observed, on the basis of the proposal which
was not objected to. This Court has specified the ratio of calling the
candidates for final examination after preliminary examination for Civil
Judge (Junior Division) by direct recruitment as under:-
H
RAHUL DUTTA & ORS. v. THE STATE OF BIHAR & ORS. 1063

“D. For appointment to the posts of Civil Judge (Junior Division) A
by direct recruitment.
Sl. Description Date
No.
7. Declaration of result of preliminary 15th June
written examination B
a] Result may be put on the website and
also published in the Newspaper
b] The ratio of 1 : 10 of the available
vacancies to the successful candidates be
maintained

8. These directions would not be applicable to the judiciary in the C
Sikkim High Court in view of a very small cadre of judiciary in
that State.”
7. The fixation of 10% of the total number of appeared candidates
in preliminary examination to be called for final written examination is
otherwise also arbitrary and unreasonable as the same substantially D
restricts the number of candidates to stake their claim in the final
examination. By virtue of the operation of the Rule for 349 available
seats total number of candidates being called for final written examination
of General Category is 902 and for reserved categories it is 198 and the
total number is 1100. The number of seats reserved out of 349 is 50%
E
on rounded off comes approximately to 174 seats. The number of
reserved category candidates being called to stake their claim in their
final examination is nearly 198 only. The ratio approximately is 1:1
whereas it has to be 1:10. Whereas in unreserved category the total
number of candidates called by operation of the aforesaid Rule 5A(3) is
902. For approximately 175 seats reserved for General Category the F
number of candidates which are refixed to be called is in the ratio of
1:10 to the number of vacancies would be 1750, so also for reserved
category. Thus, we are of the opinion that the aforesaid Rule is clearly
arbitrary and violates the decision of this Court in Malik Mazhar Sultan
(supra) on restrict competitive field unreasonably. No useful purpose is
going to be served by restricting the number of candidates for final written G
examination.
8. Apart from that there is yet another glaring error in the Rule
that no minimum passing marks have been prescribed in preliminary
examination. The ratio of 1:10 is only applicable when these number of
H
1064 SUPREME COURT REPORTS [2019] 3 S.C.R.

A successful candidates are available and obtaining of the minimum passing
marks in preliminary examination should be necessary, out of the
successful candidates available out of them in the ratio of 1:10 are required
to be called for final written examination. The candidates with minimum
passing marks only can be permitted to stake their claim in the final
examination. It is assured by the all concerned stakeholders i.e. State of
B
Bihar, High Court of Patna as well as the Bihar Public Service
Commission that they would ensure the minimum passing marks are
fixed under the Rules for preliminary examination separately for general
as well as for reserved category in a reasonable manner. Let that be
done for future examination. However, for the examination in question,
C it would not be appropriate to fix the marks now after examination is
over.
9. For final written examination in case 10% candidates are called
vis-a-vis to the available vacancies the cut off marks percentage-wise
for different categories, as tentatively calculated by the Bihar Public
D Service Commissions is as under:-
“No. of Candidates proposed to be qualified for the Main
Examination according to 10% of the total number of appeared
candidates rounded off to nearest 100 (without 5% less rider):
Category % of No. of Male No. of Female Total No. of
E Reservation Candidates Candidates Candidates
Unreserved (01) 50% 648 332 980
Cut Off Marks: 171 Cut Off Marks: 163
(68.95%) (65.72%)
SC (02) 16% 191 102 293
Cut Off Marks: 124 Cut Off Marks: 103
(50.00%) (41.53%)
F
ST (03) 1% 12 06 18
Cut Off Marks: 135 Cut Off Marks: 119
(54.43) (47.98%)
EBC (04) 21% 251 125 376
Cut Off Marks: 129 Cut Off Marks: 109
(52.01%) (43.95%)
G BC (05) 12% 99 55 154
Cut Off Marks: 154 Cut Off Marks: 144
(62.09%) (58.06%)
Orthopaedically 1% out of 18 04 22
Handicapped (OH) total Cut Off Marks:
vacancies 147 (59.27%)
Total – 1219 624 1843
H
RAHUL DUTTA & ORS. v. THE STATE OF BIHAR & ORS. 1065

10. As apparent from the above table, cut off marks are not going A
very low obviously the data provided is provisional one and is subject to
corrections of error, if any, in calculating the percentage or the number
of candidates in the category of male or female etc. The cut off is quite
reasonable and the aforesaid deficiency in Rule of not prescribing the
passing marks in the preliminary examination would not cause any B
invalidity in the examination already held in any manner whatsoever.
However, this fixation of cut off marks by the Bihar Public Service
Commission and permission granted by this Court to call the aforesaid
candidates would not be treated as deciding the question minimum passing
marks for preliminary examination which have to be fixed by the State C
Government under the Rules.
11. In the circumstances, we have no hesitation to strike down
the provision contained in Rule 5A(3) of the Rules. We place it on
record that the State of Bihar has also suggested the amendment in the
Rules in the letter dated 15.01.2019 and the same is pending consideration D
before the High Court and it has to be placed before the Full Court on
administrative side. Let the High Court take a decision in accordance
with law on the aforesaid proposal and also duly considering the decision
of this Court in Malik Mazhar Sultan (supra).
12. With respect to the prayer made in the writ petition(s), with E
respect to providing horizontal reservation to the women candidates it is
being provided. Thus, the submission raised about providing horizontal
reservation does not survive.
13. In the circumstances, as the examination is scheduled to be
held on 20.02.2019, as Bihar Public Service Commission has submitted F
that now under this order candidates equal to 10 times of the vacancies
have to be called, it would take some time in dispatch of roll numbers,
allotment of centre and making other arrangements. Let final written
examination be held within six weeks from today. In case it is necessary
to pray for extension of time fixed by this Court for final selection, it is G
open to the High Court of the State of Bihar to apply for extension of
time before an appropriate Bench.

H
1066 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 14. Resultantly, Rule 5A(3) of the Rules is struck down and the
writ petitions are, accordingly, allowed. We make it clear that we are
not dilating upon the other questions as the High Court is considering the
proposal for amendment in the Rules.
15. Pending application(s), if any, shall stand disposed of.
B
Kalpana K. Tripathy Petitions allowed.

C

D

E

F

G

H