VENKATARAMIAH, J. - (1.) THE Judgment of the court was delivered by
(2.) THIS is an appeal by special leave filed against the judgment of the High court of Patna in Civil Writ Jurisdiction Case 1449 of 1984 dated 16/04/1985 by which the High court declined to grant the prayer of the appellant for the inclusion of his name in the list of successful candidate's at the 19th Competitive Judicial Service Examination held in December 1979 by the e Bihar public service commission (hereinafter referred to as 'the Commission'). The facts of the case are briefly these. Pursuant to an advertisement issued by the Commission in the month of October 1979 calling for applications from eligible candidates to fill up the posts of Munsiffs in the Bihar Judicial Service, the appellant filed his application before the Commission within time. He appeared at the Competitive Judicial Examination held in the month of December 1979, the Roll No. allotted to him being 388. Thereafter on 27/07/1981 he appeared at the viva voce test held by the Commission. The appellant obtained in all 416 marks including the marks obtained 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 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 successful candidates was submitted by the Commission, the government appointed on 16/09/1982, 83 candidates as Munsiffs. Later on by its order dated 3/05/1983, 14 more candidates who belonged to the "Most Backward Classes" were appointed. These 14 appointments were challenged by some of the candidates in two Writ Petition filed before the High court, i.e., C.W.J.C. 1868 of 1983 and C.W.J.C 2209 of 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 filed in M.J.C. 600 of 1983 before the High court, another list containing names of 20 candidates was submitted. In the consolidated list of these 38 candidates the Commission did not include the name of the appellant even though it had included at Serial Nos. 36, 37 and 38 the names of candidates who had secured lower marks than what the appellant had obtained. In this appeal we are called upon to examine whether the exclusion of the name of the appellant from that list was justified or not. The recruitment to the Judicial Branch of the Bihar Civil Service is regulated by the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 (hereinafter referred to as 'the Rules') promulgated 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 Munsiffs shall be 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 108 to be filled by appointments to be made on a substantive basis or on a temporary basis or both. On such determination being made the Commission is required by Rule 4 of the Rules to announce in each year, in such manner as it thinks fit, the number of vacancies to be filled that year by direct recruitment 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 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 : JUDGEMENT_105_4_1985Html2.htm 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. 2. Optional. Candidates must appear in subject No. 4 and select any three out of the remaining five subjects, (4) Law of Evidence and Procedure . . 150 (5) Constitutional Law of India and England . . 150 (6) Hindu Law and Muhammadan Law . . 150 (7) Law of Transfer of Property and Principles of Equity including Law of Trusts and Specific Relief .. 150 (8) Law of Contracts and Torts . . 150 (9) Commercial Law . . 150 3. Viva Voce test . . 200
(3.) RULE 15 of the RULEs which is material for the purpose of this case reads as follows : 15 (a) The Commission shall have discretion to fix the qualifying marks in any or all the subjects at the written examination in consultation with the Patna High court. 109 (b) The minimum qualifying marks for candidates 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 candidates is considerably in excess of the number of candidates required to fill all the vacancies reserved 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 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 Commission 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 Commission has to consult the Patna High court. We are not concerned with clause (b) of Rule 15 of the Rules in this case. Clause (c) of Rule 15 provides that there shall be no qualifying marks for the viva voce test. Rule 17 of the Rules reads thus : 17. On the basis of the marks obtained at the written examination, the Commission 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 Commission may, 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 minimum qualifying marks at the written test. ;