Holding

The Commission had validly fixed the qualifying marks at 38%, making the appellant eligible for inclusion in the merit list, and the High Court’s judgment was set aside.

Summary

The appellant, P.C. Agarwal, appeared for the 19th Competitive Judicial Service Examination and secured 38.8% in the written paper and 416 marks overall, but was omitted from the list of successful candidates prepared under Rule 19 of the Bihar Civil Service (Judicial Branch) Recruitment Rules, 1955. The Bihar Public Service Commission had, after consulting the Patna High Court, fixed the qualifying marks for the unreserved category at 38% under Rule 15(a), not the 40% later asserted by the High Court. Because the appellant exceeded the 38% threshold, he was entitled to sit for the viva voce and to be placed in the merit list according to Rule 19. The Supreme Court held that the Commission’s fixation of 38% was valid and that the appellant’s exclusion violated the Rules as well as Articles 14 and 16 of the Constitution. Consequently, the High Court’s order was set aside, the Commission was directed to submit a revised list placing the appellant above serial No.36, and the State was ordered to consider his appointment as Munsiff.

Issues considered

Whether the Bihar Public Service Commission fixed the qualifying marks at 40% or 38% under Rule 15(a) of the Recruitment Rules.
Whether a candidate who secured 38.8% in the written examination, above the 38% qualifying mark, was entitled to be called for viva voce and included in the list under Rule 19.
Whether the exclusion of the appellant’s name from the list violated the Rules and Articles 14 and 16 of the Constitution.
Whether the High Court erred in its approach to the above questions.

Subjects

Recruitment RulesQualifying marksRule 15Rule 19Bihar Public Service CommissionJudicial Service ExaminationEqualityArticles 14 and 16Consultation

Judgment

693

PRAKASH CHANDRA AGAllWAL A
v.
STATE OF BIHAR AND ORS.

AUGUST 26, 1985

[E.S. VENKATARAMIAH AND R.B. MISRA, JJ. J B

Bihar Civil Service (Judicial Branch) Recruitment Rules,
1955, Rules 15 and 19 - Selection by State'· Service Commission_ -
Qualifying marks for· being called for interview fixed at 40% in
consultation with High Court - Later on Commission refixed the
marks at 38% in consultation with · High Court - Candidate C
obtaining 38.8% marks called for interview but not appointed -
Whether juatified.

The Bihar Civil Service (Judicial Branch) (Recruitment)
'Rules, 1955 vests the Bihar Public Service Comnission by clsuse
(a) of Rule 15 the power to fix the qualifying marks iD any or D
all the subjects at the written examination for the posts of
Munsiffs iD the Bihar Judicial Service but before doing so the
Callllission has to consult the High Court. Rule l7 of the Rules
provides that i f a candidate has secured less than the prescribed
qualifying marks as required under Rule 15 he would not be eligi-
ble for the , .viva voce test, while under rule 19 the marks
obtsined at the viva voce test are to be added to the marks E
obtained at the written examination.·

The appellant appeared at .the 19th Competitive Judicial
Service Examination and obtained iD all 416 marks including the
marks obtained at the viva. voce test. However, he secured only
38.8 per cent marks at the written examination. At the first F
· instance, 83 candidates were appointed as Munsiffs •. Later on,. the
commission sul:mitted another list of 38 candidates to the Govern-
ment for being appointed as Munsiffs, but it did not include the
name of the appellant even tl:\ough it had included at Serial Nos.
36, 37 and 38 of the names of cendidates who had secured lower
marks than what the ,·appellant had obtained. Aggrieved by the G
non-incluaion of his name in the list of successful candidates;
he filei a writ petition in the High Court which was dismissed.

The appellant contended , in his appeal before the Supreme
Court that the Commission had in exercise of its discretion fixed
38 per cent marks in the written papers as the qualifying marks H
694 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Wider Rule 15(a) after consultation with the High Court and the
~ion of his name from the list of succesaful candidates
prepared under Bule 19 was, therefore, contrary to the Bules. The
respondent, however, argued that the name of the appellant was
not Included in the list of succeaaful candidates prepared Wider
Bule 19 on the ground, that he had obtained less than 40 per cent
B marks in the written papers which were the qualifying marks fixed
under Rule 15 (a).

Allowing the appeal,

BILD: l. The entire approach adopted by the High Court is
wrong. The High Court should have first decidecl the question
c whether the Coomlasion had fixed 40 per ~t marks 88 qualifying
marks or 38% 88 it is cl efmed by the appellat and tbeD it should
have proceecled to decide whether the ll8llle of the appellat has
been properly excluded froa the liat prepared under Bule 19 of
the Rules or not. It was in error in holding that the Commiasion
had fixed the qualifying marks at 40 per cent merely because it
had not flu: I nded the nsmes of any candidates who had secured leas
o than 40 per cent qualifying marks in the list prepared Wider rule
19. Such non-inclusion by itself and without more does not amount
to a decision made by the Comnission. The Commission did not
actually plead that it had made any such fresh determination. It
appears to be a new case made out by the High Court to support
the action of the Comission-which was contrary to its own deci-
E sion fixing the qualifying urks at 38 per cent. It may be that,
in fact, · thei;e was no candidate belonging to the unreserved
category who had secured less than 40 per cent marks in the
written papers amongst the first batch of 83 candidates but what
is relevant is the standard which was applied when the said list
waa prepared. That list lllWlt have been prepared without any doubt
F in the light of the qualifying marks fixed by the Commission at
38 per cent for the unreserved category on the bssis of which the
viva voce test of all the candidates belonging to both the
batches including the appellant had been . held. That standard
could not be varied when the neXt list V88 prepared. The High
Court hss failed to appreciate this 88pect of the case.
G [703 A,E-F, 704 A-CJ
2. The c.-ission had fixed 38 per cent 88 the qualifying
marks under Rule 15 (a) of the Rules for the candidates belonging
to the unreserved category. Having fixed 38 per cent as the
qualifying marks, it was not open to the Commission to exclude
H the nmae of a candidate who had secured 38.8 per cent marks in
the written esndnstion only because the High Court had earlier
•
P.C.AGARWAL v. STATE [VENKATARAMIAH, J.] 695

recO!Jl!!l!1lded that 40 per cent marks should be the qualifying marks A

-
,
when it was consulted by the Coamission. As long ss no fresh
determination is made, every candidate who has secured 38 per
cent marks and above in the written examination would be entitled
to appear at the viva voce test and to be included in the list
prepared under Rule 1·9 of the Rules in the order of merit on the
B
basis of the aggregate marks obtained in the written examination
and in the viva voce test. (703 B-E]

In the instant case, admittedly the two candidates whose
names are shown against Serial Nos. 36 and 37 ·bad secured 415
marks in the aggregate and the candidate shown against _Serial No.
38 had secured 413 marks while the appellant had secured 416 c
marks. The nsme of the appellant should have, therefore, been
included in the list submitted by the Coamission to the
Govermnent under Rule 19 by placing it above the name of the
candidate at Serial No.36. By not doing so the Coamission had
violated the Rules and also Articles 14 and 16 of the Constitu-
tion. Therefore, the Commission is directed to submit to the D
Govermnent a revised list showing the name of the appellant above
serial No.36 and the State Government is directed to consider the
case of the appellant for appointment as Munsiff under Rule 21 of
the rules as if his name had been shown above the candidate whose
name is shown against Serial No.36. It is further ordered that on
his appointment, the appellant shall be placed above the candi-
date shown against Serial No.36 in the seniority list and he E
shall be given all · increments etc. as if he had been appointed on
the date on which the candidate at Serial No.36 was appointed.
(704 D, F-G]

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4011 of
1985. F

From the Judgment and Order dated_16.4.1985 of Patna High
Court in c.w.J.c. No. 1449 of 1984.

Petitioner in person.
G
Jaya Narain and U.S. Prasad for the Respondent.

The Judgment of the Court was delivered by

VENKATARAllIAll, J. This is an appe~l by special leave filed
against the judgment of the High Court of Patna in Civil Writ H
·Jurisdiction Case No. 1449 of 1984 dated April 16, 1985 by which
the High Court declined to grant the prayer of. the appellant for

'
696 SUPREME COUR:r REPORTS [1985] SUPP.2 s.c.R.

A the inclusion of his name in the list of successful candidates at
the 19th Competitive Judicial Service Examination held in Decem-
ber 1979 by the Bihar Public Service COl!lllission (hereinafter
l:'eferred tO aS 1the Commission I)• The faCtS Of the case are
briefly these. Pursuant to an advertisement issued by the
Conmission in the month of October, J.979 calling for applications
B from eligible candidates to fill up the posts of Munsiffs in the
Bihar Judicial Service, the appellant filed his application
before the Connnission within time. He appeared at the Competitive
Judicial Examination held in the 100nth of December, 1979, the
Roll No. allotted to him being 388. Thereafter on July 27, 1981
he appeared at the viva voce test held by the Commission. The
appellant obtained in all 416 marks including the marks obtained
c at the viva voce test. He, however, did not receive any order of
appointment although a candidate who had secured in the aggregate
lower marks than what he had secured had been appointed as
Munsiff. Aggrieved by the non-inclusion of his name in the list
of successful candidates he filed the above said Writ Petition in
the High Court of Patna under Article 226 of the Constitution
which ultimately came to be dismissed as mentioned above. This
D appeal by special leave is filed against the judgment of the High
Court.

At the first instance, the Government had decided to
appoint 83 candidates as Munsiffs. Later on, it was decided to
appoint in .all 139 candidates as Munsiffs. After the list of
E successful candidates was submitted by the Conndssion, the
Government appointed on Septemebr 16, 1982, 83 candidates as
Munsiffs. Later on by its order dated May 3, 1983, 14 100re candi-
dates wh..> belonged to the 'Most Backward Classes' were appointed.
These 14 appointments were challenged by some of the candidates
in two Writ Petitions filed before the High Court, i.e., C.W.J.C.
F 1868/1983 and c.w.J.C. 2209/1983. The High Court allowed these
petitions, quashed the appointments of the said 14 candidates on
the basis of reservation and directed the Commission to forward
the names· of successful candidates in accordance with the Rules.
Then a further list containing names of 18 candidates was
submitted by the Commission. After a petition for contempt was
G filed in M.J.C. No. 600 of 1983 before the High Court, another
list con1:aining names of 20 candidates was submitted. In the
consolidated list of these 38 candidates the Conmission did not
include the name of the appellant even though it had included st
serial Nos. 36, 37 and 38 the names of candidates who had secured
lower marks than what the appellant had obtained. In this appeal
H we are called upon to examine whether the exclusion of the name
of the appellant from that list was justified or not.
.
P.C.AGARWAf.. v. STATE [VENKATARAMIAI!, J. J 697

The recruitment to the Judicial Branch of the Bihar Civil A
Service is regulated by the Bihar Civil Service (Judicial Branch)
(Recruitment) Rules, 1955 (hereinafter referred to as 'the
Rules') prOilllllgated by the Governor of Bihar under Article 234 of
the Constitution of India after consultation with the High Court
of Judicature at Patna and the Commission. Rule 2(a) of the Rules
provides that the recruitment to the posts of Munsif f s shall be B

, made in accordance with the Rules. Rule 3 of the Rules requires
the Governor to decide in each year the number of vacancies in
the cadre of Munsiffs to be filed by appointments to be made on a
substantive basis or on a temporary basis or both. On such deter-
mination being made the Commission is required by rule 4 of the
Rules to announce in each year, in such manner as it thinks it, c
the number of vacancies to be filled that year by direct recruit-
ment on the results of a competitive examination. The Commission
is required by the Rules to invite applications from candidates
eligible for appointment as Munsiffs. The competitive examination
is required to be conducted by the Commission. The qualifications
which a candidate for the post of Munsiff should possess are set D
out in rule 6 of the Rules. The competitive examination is to be
held in accordance with the syllabus specified in Appendix 'C' to
the Rules. The relevant part of Appendix 'C • to the Rules reads
as follows:

Subjects Marks .
E
1. Compulsory-
(l) General Knowledge (including 150
current affairs)
(2) Elementry General Science 100
(3) General Hindi foo
F
This compulsory paper will be a qualifying subject in
which all candidates shall be required to secure a
minimum of 30 marks but the marks secured in this
paper will not be added for the purpose of
determination of merit.
G
2. -Optional.- Candidates DnlSt appear in subject No. 4 and
select any three out of the remaining five subjects-

(4) Law of Evidence and Procedure 150
H
(5) Constitutional Law of India and
England 150
698 SUPRBKE <XlURT REPOllTS [1985) SUPP.2 s.c.B..

A ( 6) Hindu Law and MuhanlJladan Law 150

(7) Law-of Transfer of Property and
Principles of Equity illcluding Law
of Trusts and Specific llelief. 150
( 8) Law of Contracts and Torts 150
B
(9) Comnerclal Law 150

•
3 •. Viva Voce test 200

Rule 15 of the Rules which is material for the purpose
of this case reads as follows:
c
"15. (a) Tue Comnission shall have discretion to fix
the qualifying marks in any or all the subjects at the
writteo eiiamination in consultation with the Patna
High Court.

(b) The minilllllD. qualifying marks for candidates
D belonging to the Scheduled Castes and the Scheduled
Tribes shall not be higher than 35% unless the number
of such candidates qualifying at the written test
according to the standards· applied for other candi-
dates is considerably in excess of the number of
candidates required to fill all the vacancies reserved
E for the Scheduled Castes and the Scheduled Tribes;

Provided that in determining the suitability of a
particular candidate for appointment, the total marks
obtained at the written examination and not the marks
, obtained in any particular subject or subjects, shall
F ) be taken into consideration.

( c) There shall be no qualifying marks for the viva
, voce test."

Clause (a) of rule 15 of the Rules vests with the
G Comnission the power to fix the qualifying marks in any or all
the subjects at the written examination but before exercising its
discretion in this regard the Comnission has to consult the Patna
High Court. We are not concerned with clause (b) of rule 15 of ·
the Rules in rus case. Clause ( c) of rule 15 provides that there
shall be no qualifying marks for the viva voce test• Rule 17 of
H the rules reads thus:
P. C.AGABllAL v; STATE l VENKATARAMIAH, J. I 699

"17. On the basis of the marks obtained at the written
A
examination, the Comm1ssion shall arrange for viva
voce test of the candidates who have qualified at the
written examination according to rule 15:

Provided that in exceptional circumstances and with
the prior approval of Government, the Comm1ssion may,
B
at their discretion, admit candidates of the Scheduled
Castes and the Scheduled Tribes to the viva voce test
even though they may not have obtained the m1nfnnnn
qualifying marks at the written test.

It .is clear from rule 17 of the Rules that if a
candidate has secured less than the marks prescribed as the
c
qualifying marks under rule 15 he would not be eligible for the
viva voce test. Rule 19 of the Rules lays down the procedure to
be followed in the preparation of the final list of successful
candidates to be submitted by the Comm1ssion to the Governor. It
reads thus:
D

"19. The marks· obtained at the viva voce test shall be
added to the marks obtained at the written
eX£11lination. The names of candidates ·will then be
arranged by the Comm1ssion in order of merit. If two
or urore candidates obtained equal marks in the
aggregate,. the order shall be determined in accordance
E
with the marks secured at the written examination.
Should the marks secured at the written examination of
the candidates concerned be also equal then the order
shall be decided in accordance with the total nlDnber
of )lllll"ks obtained in the optional papers. From the
list of candidates so arranged the Comm1ssion shall
F
nominate such n..nber of candidates as may be fixed by
the Governor in order of their position in the list.
The nominations so made shall be submitted to the
Governor by such date in each year as the Governor may
fix.··

In the instant case it is not disputed that the appellant G
had secured 38.8 per cent marks at the written examination and
that he had also appeared at the viva voce test conducted by the
Commiss1on. It is stated that his name was not included in the
list of successful candidates prepared under rule 19 of the Rules
on the ground that he had obtained less than 40 per cent marks in
the written papers which according to the High .Court were the H
700 SUPREME COL'RT REPORTS . [1985] SUPP.2 s.c.R.

A qualifying marks fixed under rule 15 (a). The case of the appel-
lant, however, is that the Comnission had in exercise of its
discretion fixed 38 per cent marks in the written papers as the
qualifying marks under rule 15 (a) after consultation with the
High Court and the exclusion of his name from the list of
successful candidates prepared under rule 19 was contrary to the
B Rules. The decision in this case, therefore, turns on the answer
to the question whether the Commission had fixed 40 per cent as
minimum qualifying marks under rule 15 (a) of the Rules or 38 per
cent as it is claimed by the appellant. In Paragraphs 5, 6 and 8
of the counter-affidavit filed by Nilamani Prasad Srivastava, an
Assistant in the office of the Commission before the High Court
it is stated as follows:-
c
· "5. That the Bihar Civil Service (Judicial Branch)
(Recruitment) Rule 15 (a) provides that "the
Commission shall have discretion to fix qualifying
marks in any or all the subjects at the ·written
examination in consultation with the Patna High Court.
D 6. That in view of the above rule the Commission
consulted Hon 'ble Patna High Court for fixing
qualifying marks for the written Examination of 19th
Judicial Service Examination, Patna High Court vide
'their letter No. 14265 dated 8th Oct. 80 said among
other things that the qualifying marks for viva voce
E test for the Scheduled Caste and Scheduled Tribe
candidates should be 30% and for the rest 40%. The
High Court also did not accept various categories for
reservation meant for the candidates belonging to the
Backward Classes. • ......•••.•.·••••.•.... •..•••....•••.

F '8. That since the Government did not revice the n\Dllber
of vacancies fixed earlier category wise including
various catergOries of Backward Classes the Conmission
ultimately had to fix the following as qualifying
marks at the written examination for calling the
Candidates for interview, in accordance with law.
G
The qualifying marks as fixed by the Commission are
indicated as follows:-

UnreserVed 38%

H Backward Class 38%
P.C.AGARWAL v. STA.TE [VENKAIARAMIAH, J.] 701
'

Most Backward Class 25% A

Economically Weaker (Ladies) 25%

Economic Backward Class 25%

(Non-SC/Non-SC/Non-MBC) B

S.T • 25%

. s.c. 25%

It is seen from the above extract of the counter-affidavit c
filed on behalf of the ·Conmission that the High Court had no
doubt stated that the qualifying marks for candidates other than
the candidates belonging to the ·Scheduled Castes and the
Scheduled Tribes should be 40 per cent when it was consulted by
the Commi~.sion as required by the Rules but the Commission had
ultimately fiXed the qualifying marks at 38 per cent for the D
unreserved class of candidates after taking into consideration
the opinion of the High Court. We are not concerned in this
appeal with the cases of candidates belonging to th~ other
claasifications referred to in Paragraph 8. The appellant was no
doubt treated as a Backward Claas candidate but such classifica-
tion did not find favour with the High Court in one of the judg-
ments rendered by it. But having secured 38.8 per cent marks in E
the written papers the appellant was eligible to appear at the
viva voce test as a candidate belonging to the unreserved ·
category as he satisfied the qualifying marks prescribed for the
caadidates belonging to that category. The Commission having
fiXed 38 per cent marks as the qualifying marks after consulting
I
the High Court it was not permissible for the Commission to F
refuse to follow that decision and to decline to include the name
of the appellant in the list of candidates which was forwarded by
it to the Government under rule 19. Dealing with the above
contention of the appellant in the course of its judgment ·the
High Court 'has observed thua.:
G
"Learned counsel for the petitioner submitted that the
expression 'consultation' occurring in rule 15 does
not mean concurrence. In other words, the Com:nission
is not bound by the advice given by High Court in
respect of fixation of qualifying marks at the written
examination. In support of this. contention learned H
CO)lllSel purported to refer to different casea Of the
702 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Supreme Court where the expression "consultation" hss
been examined. In my opinion, in the facts and circum-
stances of the present case there is no necessity of
examining the scope of rule 15 as to whether the
Comnission has to set according to the advise of the
·High Court while fixing the qualifying marks at the
B written examination. That question could have arisen
if the Comnission did not according to the advice of
the High Court. In the instant case, the Comnission
hss acted according to advice given by the High Court.
Merely because the candidates having secured less than
40% marks were called for interview, in my view, it
shall not clothe them with any right to be selected
c for appointment. I have already pointed out that in
the counter-affidavt it has been explained as to why
at that stage the Comnission had decided to call for
interview even the candidate who had secured 38%
marks. But while reconmending the names for appoint-
ment, a list of successful candidates had been prepa-
red strictly in accordance with Rules 19 and 20 of the
D Rules. Learned counsel appearing for the petitioner
had to admit that no candidate hss been recomneruied JI
for being appointed by the Comnission who had secured
less than 40% marks at the written examination. In •....
that view of the matter there is no scope for an argu-
men• that the petitioner hss been discriminated in any
E manner ...

The iligh Court, with great respect, hss tried to avoid the
question which squarely arose before it. The High Court has
observed that on the facts, and in the circumstances of the
present case there was no necessity for examining the scope of
F rule 15 of the Rules as to whether the Comnission had to act
according to the advice of the High Court while fixing the quali-
fying marks at the written examination and that the said question
would have arisen if the Comnission had not acted according to
the advice of the High Court. The High Court has further observed
that merely because the Comnission had interviewed candidates who
G had secured less than 40 per cent marks the appellant would not
be entitled to claim any right to be selected for the
appointment. The High Court has further upheld the action of the
Comnission by observing that since the Comnission had not
reconnwnded any candidate who had secured less than 40 per cent
marks at the written exmnlnation there was no scope for the con-
H tention that the appellant had been discriminated against. With
P.C.AGARWAL v. STATE [VENKATARAMIAH, J.] 703

great respect, the entire approach adopted by the High Court is A
wrong. The High Court should have first decided the question
whether the Commission had fixed 40 per cent marks as qualifying
marks or 38t as it is claimed by the appellant and then it should
have proceeJed to decide whether the name of the appellant has
been properly excluded fro"1 the list prepared under rule 19 of
the Rules or not. It is admitted in the counter-affidavit filed B
on behalf of the Comnission that the Comnission had fixed 38 per
cent as the qualifying marks under rule 15(a) of the Rules for
the candidates belonging to the· unreserved category. Having fixed
38 per cent as the qualifying marks, it was not open to the
Comnission to exclude the name of a candidate who had secured
38.8 per cent marks in the written examination only because the c
High Court had earlier recomnended that 40 per cent marks should
be the qualifying marks when it was consulted by the Cotmnission.
In the counter-affidavit there is no reference to any fresh fixa-
tion of qualifying marks made by the Cotmnission after it had once
taken the decision to fix 38 per cent marks as the qualifying
marks in regard to the candidates belonging to the unreserved D
category at the 19th Competitive Judicial Service Examination. AB
long as such fresh determination is not made every candidate who
has secured 38 per cent marks and above in the written examina-
tion would be entitled to appear at the viva voce test and to be
included in the list prepared under rule 19 of the Rules in the
order of merit on the basis of the aggregate marks obtained in
the written examination and in the viva voce test. The High Court E
was in error in holding that the Cotmnission had fixed the quali-
fying marks at 40 per cent merely because it had not included the
names of any candidates who had secured less than 40 per cent
qualifying marks in the list list prepared under rule 19. Such
non-inclusion by itself and without more does not amount to a
decision made by the Commission. The Cotmnission did not actually F
plead that it had made any fresh determination. It appears to be
a new case made out by the High Court to support the action of
the Cotmnission which was contrary to its own decision fixing the
qualifying marks at 38 per cent.

The acceptance of the view of the High Court -would also lead G
to the anomalous result of prescribing two different qualifying
marks at two different stages in respect of the same examination
i.e. one for the first batch of 83 candidates appearing in the
same examination who were appointed on September 16, 1982 before
any dispute arose about the appointments in question and another
for the next batch of 38 candidates whose names were forwarded to H
the Governor after the judgment in the Writ Petitions C.W.J.C.
704 SUPREl'IB COURT REPORTS (1985] SUPP.2 s.c.R.

A Na. 1868 of 1Y83 and c.w.J.c. NO. 2209 of 1983. Tnis incongruity
cannot be allowed to remain in existence. It may be that in fact
there was no candidate b<alonging to the unreserved category who
had secured less than 40 per cent marks in the written papers
amongst the first batch of 83 candidates but what is relevant is
the standard which was applied when the said list was prepared.
B The list IlllSt have been prepared without any doubt in the light
of the qualifying marks fixed by the Conmission at 38 per cent
for the unreserved category on the basis of which the viva voce
test of all the candidates belonging to both the batches includ-
ing the appellant had been held. That standard could not be
varied when the next list was prepared. The High Court has failed
to appreciate this aspect of the case.
c
Having regard to the material before us we hold that the
Commission had fixed 38 per cent as the qualifying marks for the •.
unreserved category and had not subsequently altered it.
Admittedly the two •candidates whose names are shown against
Serial Nos. 36 and 37 had secured 415 marks in the aggregate and
the candidate shwon against Serial No. 38 had secured 413 marks
D while the appellant had secured 416 marks. The name of the appel-
lant should have, therefore, been included in the list submitted
by the Conmission to the Government under rule 19 by placing it
above the name of the candidate at Serial No. 36. By not doing so
the Conmission had violated the Rules and also Articles 14 and 16
of the Constitution.

The judgn;ent of the High Court is, therefore, liable to be
set aside and we accord;i.ngly set it aside. We direct the
Conmission, to submit to the Government a revised list showing
the name of the appellant abcve Serial No. 36 and we further
direct the State Government to consider the case of the appellant
F for appointment as Munsiff under rule 21 of the Rules as if his
name had been shown above the candidate whose name is shown
against Serial No.36. On his appointment, the appellant shall be
placed above the candidate shown against Serial No. 36 irr the
seniority list and he shall be gi.ven all increments etc. as if he
had been appointed on the date on which the candidate at Serial
G No. 36 was appointed.

1be appeal is accordingly allowed. The respondents 1 and 2
are directed to comply with the above directions within one·
month. The appellant is entltled to the costs which we quantify
at Rs.3,000.
Ji