# BARUN KUMAR & ORS v. STATE OF JHARKHAND & ORS

- **Citation:** [2022] 16 S.C.R. 16
- **Court:** Supreme Court of India
- **Decided:** 2022-08-25
- **Case number:** Civil Appeal No. 5812 of 2022
- **Bench:** Ajay Rastogi, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/barun-kumar-ors-v-state-of-jharkhand-ors-35593
- **Pages:** 22

## Headnote

Service Law - Jharkhand Combined Civil Services
Examination - Validity of appointments - Interpretation of r.16 and
r.17 of Bihar Civil Services (Executive Branch) and Bihar Junior
Civil Services (Recruitment) Rules, 1951 - High Court cancelled
the appointment of appellants who had qualified the 6th combined
Civil Service Examination, 2016 - Appellants-candidates in appeal
before Supreme Court - Held: While reading clause (a) and (b) of
r.16 conjointly, it states that clause (a) is general and precise for
the candidates who are participating in the written examination
whereas clause (b) refers to the candidates who belong to Scheduled
Castes and Scheduled Tribes leaving the discretion of the
Commission to fix qualifying marks for them but with restriction
that shall not be higher than 35% - R.16 proviso relates to the stage
for determining the suitability of the candidate, total marks obtained
in the written examination has to be counted and not the marks
obtained in any particular subject for preparing the list of candidates
who qualify the written examination and this can be made further
clear by taking note of r.17 - Clause 12(a) of advertisement in
reference to the Preliminary Examination states that fifteen times
candidates will be shortlisted for main examination and as per clause
12(b), the main examination will comprise of 06 papers, total marks
of which would be 1050 and it would be mandatory for the candidate
to appear in all the subjects/papers of Main Examination - However,
for Paper-I, minimum 30 marks as qualifying marks has been
prescribed and all the 6 papers are common and candidate has to
appear in all the papers with the minimum qualifying marks for the
respective category as per clause13 of the advertisement but whether
it is the total marks obtained at the written examination or qualifying
marks obtained in all the papers separately is not clear under the
terms of advertisement - Reading clauses 12 and 13 of advertisement
with r.16 of indicates ambiguity in advertisement - Both the
[2022] 16 S.C.R. 16
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Commission and High Court have different views which are equally
possible views and either of the one could not be ruled out or
outrightly negated - When one possible view has been acted upon
by the Commission and candidates have been appointed and are
working for almost 2 years by this time, it will be unjust for this
Court to now permit the Government to take a U-Turn - Hence, the
appointments of the candidates could not be cancelled.
Allowing the appeals, the Court
HELD: 1. Reading clause (a) and (b) of Rule 16 conjointly,
states that clause (a) is general and precise for the candidates
who are participating in the written examination whereas clause
(b) refers to the candidates who belong to Scheduled Castes and
Scheduled Tribes leaving the discretion of the Commission to fix
qualifying marks for Scheduled Castes/Scheduled Tribes but with
restriction that shall not be higher than 35% in Bihar Civil
Services (Executive Branch). [Para 37][33-G-H; 34-A]
2. The proviso added thereto relates to the stage for
determining the suitability of the candidate, total marks obtained
in the written examination has to be counted and not the marks
obtained in any particular subject for preparing the list of
candidates who qualify the written examination and this can be
made further clear by taking note of Rule 17 of the Rules which
casts an obligation upon the Commission to collate the marks
obtained by the candidate in the written examination and the
Commission shall arrange for vivavoce the candidates who have
qualified the written examination according to Rule 16(a) or 16(b),
as the case may be, and at this stage the Commission keeps a
discretion and in exceptional circumstances may admit a member
from the Scheduled Castes or Scheduled Tribes to the viva voce
test, even if they have failed to qualify the minimum qualifying
marks with the prior approval of the Government and this being
the scheme o

## Text

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[2022] 16 S.C.R.
BARUN KUMAR & ORS.
v.
STATE OF JHARKHAND & ORS.
(Civil Appeal No. 5812 of 2022)
AUGUST 25, 2022
[AJAY RASTOGI AND C. T. RAVIKUMAR. JJ.]
Service Law - Jharkhand Combined Civil Services
Examination - Validity of appointments - Interpretation of r.16 and
r.17 of Bihar Civil Services (Executive Branch) and Bihar Junior
Civil Services (Recruitment) Rules, 1951 - High Court cancelled
the appointment of appellants who had qualified the 6th combined
Civil Service Examination, 2016 - Appellants-candidates in appeal
before Supreme Court - Held: While reading clause (a) and (b) of
r.16 conjointly, it states that clause (a) is general and precise for
the candidates who are participating in the written examination
whereas clause (b) refers to the candidates who belong to Scheduled
Castes and Scheduled Tribes leaving the discretion of the
Commission to fix qualifying marks for them but with restriction
that shall not be higher than 35% - R.16 proviso relates to the stage
for determining the suitability of the candidate, total marks obtained
in the written examination has to be counted and not the marks
obtained in any particular subject for preparing the list of candidates
who qualify the written examination and this can be made further
clear by taking note of r.17 - Clause 12(a) of advertisement in
reference to the Preliminary Examination states that fifteen times
candidates will be shortlisted for main examination and as per clause
12(b), the main examination will comprise of 06 papers, total marks
of which would be 1050 and it would be mandatory for the candidate
to appear in all the subjects/papers of Main Examination - However,
for Paper-I, minimum 30 marks as qualifying marks has been
prescribed and all the 6 papers are common and candidate has to
appear in all the papers with the minimum qualifying marks for the
respective category as per clause13 of the advertisement but whether
it is the total marks obtained at the written examination or qualifying
marks obtained in all the papers separately is not clear under the
terms of advertisement - Reading clauses 12 and 13 of advertisement
with r.16 of indicates ambiguity in advertisement - Both the
[2022] 16 S.C.R. 16
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Commission and High Court have different views which are equally
possible views and either of the one could not be ruled out or
outrightly negated - When one possible view has been acted upon
by the Commission and candidates have been appointed and are
working for almost 2 years by this time, it will be unjust for this
Court to now permit the Government to take a U-Turn - Hence, the
appointments of the candidates could not be cancelled.
Allowing the appeals, the Court
HELD: 1. Reading clause (a) and (b) of Rule 16 conjointly,
states that clause (a) is general and precise for the candidates
who are participating in the written examination whereas clause
(b) refers to the candidates who belong to Scheduled Castes and
Scheduled Tribes leaving the discretion of the Commission to fix
qualifying marks for Scheduled Castes/Scheduled Tribes but with
restriction that shall not be higher than 35% in Bihar Civil
Services (Executive Branch). [Para 37][33-G-H; 34-A]
2. The proviso added thereto relates to the stage for
determining the suitability of the candidate, total marks obtained
in the written examination has to be counted and not the marks
obtained in any particular subject for preparing the list of
candidates who qualify the written examination and this can be
made further clear by taking note of Rule 17 of the Rules which
casts an obligation upon the Commission to collate the marks
obtained by the candidate in the written examination and the
Commission shall arrange for vivavoce the candidates who have
qualified the written examination according to Rule 16(a) or 16(b),
as the case may be, and at this stage the Commission keeps a
discretion and in exceptional circumstances may admit a member
from the Scheduled Castes or Scheduled Tribes to the viva voce
test, even if they have failed to qualify the minimum qualifying
marks with the prior approval of the Government and this being
the scheme of Rules, proviso to Rule 16 has to be read for both
the clause (a) and (b) to Rule 16 and cannot be read in reference
to clause (b) alone as held by the High Court under the impugned
judgment. [Para 38][34-A-D]
3. If we examine clause 12(a) in reference to the preliminary
examination, it may indicate that according to vacancies, fifteen
BARUN KUMAR & ORS. v. STATE OF JHARKHAND & ORS.
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[2022] 16 S.C.R.
times candidates will be shortlisted for main examination and as
per clause 12(b), the main examination will comprise of 06 papers,
total marks of which would be 1050 and it would be mandatory
for the candidate to appear in all the subjects/papers of Main
Examination. But for Paper-I, minimum 30 marks as qualifying
marks has been prescribed and all the 6 papers are common and
candidate has to appear in all the papers with the minimum
qualifying marks for the respective category as indicated in clause
13 of the advertisement but whether it is the total marks obtained
at the written examination or qualifying marks obtained in all the
papers separately is not clear under the terms of advertisement.
It is true that it can be construed in both ways. The main
examination is comprising of 6 papers, total marks would be 1050
and candidate has to appear in all the papers of the main
examination. This could be one construction that qualifying marks
in paperI is 30% but in other subject papers, it may be 40% or as
fixed for the respective category and whether it has to be
aggregate or qualifying marks in each paper is indeed not clear
and ambiguity is there in the conditions of advertisement, of which
a detailed reference has been made. At this stage, we take
assistance of Rule 16 of the scheme of Rules, 1951 read with the
proviso which gives a different indication. [Para 40 and 41][34-FH; 35-A-C]
4. In the instant case, the view which has been adopted by
the Commission and that has been considered and held by the
High Court in the impugned judgment may be better
circumscribed but both are equally possible views and either of
the one could not be ruled out or outrightly negated. In the given
situation, when one possible view has been acted upon by the
Commission and pursuant to which the recommendations were
made and after approval of the State Government, candidates have
been appointed and are working for almost 2 years by this time,
it will be unjust for this Court to now permit the Government to
take a U-Turn in compliance of the impugned judgment, and nonsuit the candidates who are working for sufficiently long time.
[Paras 43 and 44][36-B-E]
Joy Guria v. State of Jharkhand and Others [W.P.(S)
No. 4188 of 2018]; N. Suresh Nathan and Another v.
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Union of India and Others (1992) 1 Supp SCC 584 :
[1991] 2 Suppl. SCR 423 - referred to.
Case Law Reference
[1991] 2 Suppl. SCR 423
 referred to Para 42
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5812
of 2022.
From the Judgment and Order dated 23.02.2022 of the High Court
of Jharkhand at Ranchi in Letters Patent Appeal No. 201 of 2021.
With
Civil Appeal Nos. 5813, 5814-5817 and 5818 of 2022, Transfer
Petition (C) No. 1100 of 2022.
Ajit Kumar Sinha, Siddharth Bhatnagar, Ms. V. Mohana, Sr. Advs.,
Abhishek Ritabh Shukla, Rudrashish Bhardwaj, Md. Ali, Ms. Pracheta
Kar, Aditya Sidhra, Nadeem Afroz, Tushar Bakshi, Satyajeet Kumar,
Prashant Shukla, Suyash Srivastava, Shanker Singh,Ms. Shreya Mishra,
Ms. Aaina Walia, Madhumay Mishra, Brajesh Pandey, Saket Jain, Vijay
Laxmi, Anilendra Pandey, Advs. for the Appellants.
Kapil Sibal, Gopal Sankaranarayanan, Arunabh Chowdhury, Manoj
Swarup, Sr. Advs., Ms. Ranjeeta Rohatgi, Ms. Anusha Nagarajan,
Ms. Samten Doma, Sourabh Tandon, Ritansh Vats, Sahil Bhalaik, Tushar
Giri, Amritansh Vats, Ms. Tanya Srivastava, Shubhashis R. Soren, Bhakti
Vardhan Singh, Vaibhav Kumar Rana, Vatsalya Vigya, Puneet Jain,
Vigyan Shah, Ms. Christi Jain, Akshit Gupta, Yogit Kamat, Umang Mehta,
Ms. Pragya Baghel, Ms. Pallavi Langar, Abhishek Ray, Karma Dorjee,
Dechen W. Lachungpa, Himanshu Shekhar, Parth Shekhar, Neelmani
Pant, Ms. Kriti Dang, Ms. Akanksha Mehra, Amit Agrawal, Vigyan
Shah, Akshit Gupta, Ms. Radhika Yadav, Ms. Tanya Srivastava, Rajneesh
Bhaskar, S. R. Setia, Advs. for the Respondents.
The Judgment of the Court was delivered by
AJAY RASTOGI, J.
Civil Appeal @ SLP (C) No(s).4310 OF 2022
Civil Appeal @ SLP (C) No(s).4443 OF 2022
Civil Appeals @ SLP (C) No(s).5338-5341 OF 2022
BARUN KUMAR & ORS. v. STATE OF JHARKHAND & ORS.
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Civil Appeal @ SLP (C) No(s). 5409 OF 2022
1. Leave granted.
2. The present batch of appeals has been preferred by the
candidates who on qualifying the 6th Combined Civil Services
Examination, 2016, conducted by respondent no.3, Jharkhand Public
Service Commission (hereinafter referred to as "the Commission") and
having been appointed on the recommendations made by the Commission,
completed their period of probation and got regular postings, their
appointments have been cancelled initially by the learned Single Judge
by its judgment dated 7th June, 2021, which came to be affirmed by the
Division Bench of the High Court on dismissal of the Letters Patent
Appeal filed at the instance of the present appellants by judgment and
order impugned dated 23rd February, 2022.
3. The facts in brief which may be relevant for the purpose, with
the consent of parties have been noticed from Civil Appeal @ Special
Leave Petition (Civil) No.4310 of 2022 (Barun Kumar & Ors. Versus
State of Jharkhand & Ors.).
4. That in terms of the Bihar Re-Organisation Act, 2000, Bihar
Civil Services (Executive Branch) and Bihar Junior Civil Services
(Recruitment) Rules, 1951(hereinafter referred to as the "Rules 1951")
was adopted by the State of Jharkhand vide notification no.6184 dated
9th November, 2002 and accordingly, the State of Jharkhand held its
Combined Civil Service Examination in terms of the Rules 1951.
5. That prior to the present selection process which came to be
initiated by the Commission pursuant to Advertisement no.1/2015, the
respondents held 5th Combined Civil Services Examination conducted
by the Commission pursuant to Advertisement no.6/2013 dated 7th July,
2013, there was a specific note in the advertisement that preliminary
examination had two papers of 100 marks each and there shall be subject
papers in the main examination and that the marks obtained in General
Hindi will not be added in the marks obtained in the written examination
and personality test, but the candidates who failed to secure 30 marks in
compulsory General Hindi, will not be considered eligible for the written
examination and accordingly Paper-I (General Hindi) was considered to
be a qualifying test and before the 6th Combined Civil Services
Examination, 2016 came to be notified, there was a series of meetings
held by the Expert Committee for revision of the examination pattern for
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Combined Civil Services Examination chaired by Mr. V.S. Dubey, IAS
(Retd.) and the Expert Committee, after examining the Pattern of
Examination, made the recommendations1.
1
"65.Briefly speaking, the Expert Committee has the following
recommendations to make :-
(a) All the optional papers, both at the level of the preliminary and main
examinations of the Civil Services, be done away and replaced by common,
compulsory papers.
(b) The Preliminary Examination should be conducted in two papers only,
each of 200 marks, compulsory for all candidates. The broad syllabus of these
two papers could be the same as that of the Civil Services Aptitude Test
(CSAT) of the Union Public Service Commission, with minor modifications to
accommodate local interests. These two papers could be called: (i) the Civil
Services Aptitude Test (CSAT) Paper I, and (ii) the Civil Services Aptitude
Test (CSAT) Paper II. Questions to be asked in these two papers must be
multiple choice, objective type, with no negative marking. Based on the result
of the Preliminary Examination, the number of the candidates to be called for
the written (Main) Examination should be around ten times of the vacancies to
be filled. The cut off marks of the Main Examination should be decided
accordingly by the Commission.
(c) The Main Examination should be conducted for a maximum of
1000 marks, divided into six papers, compulsory for all candidates. Of the
six papers, two should be drawn from the languages group and remaining
four should be subject papers, as per details given below :-
(i)
Paper I should be a composite paper of General Hindi and General
English of Matric standard of 100 marks. This paper should have two
separate segments, one on Hindi and the other one on English, each of
equal weightage or 50 marks.
(ii)
Paper II should be a paper on Language & Literature of 100 marks of
graduate standard. This paper will be set separately for each one of the
following 15 languages, namely, (i) Hindi, (ii) Urdu, (iii) Bengali, (iv)
Oriya, (v) English, (vi) Sanskrit, (vii) Santhali, (viii) Mundari, (ix) Khadia,
(x) Ho, (xi) Kuruk, (xii) Nagpuria, (xiii) Kurumali, (xiv) Khorta, and
(xv) Panch Pargania, of which every candidate will have to opt for one.
(iii)
Paper III should be a paper on Social Sciences of 200 marks, comprising
of two distinct sections, each of equal weightage, one on History and
the other one on Geography.
(iv)
Paper IV should be a paper on Indian Constitution & Polity, Public
Administration & Good Governance.
(d) Marks obtained in all the six compulsory papers of the written
Main Examination should be counted and clubbed together to prepare
the gradation-list. The candidates should be called for the Personality
Test based on their position in the gradation list of the Main Examination.
The number of candidates to be called for the Personality Test could be
around two to three times of the vacancies to be filled. The cut-off marks
BARUN KUMAR & ORS. v. STATE OF JHARKHAND & ORS.
[AJAY RASTOGI, J.]
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6. The report of the Dubey Committee was considered by the
Commission in the first instance and recommended the same to
Respondent No.1 for acceptance, inter alia, with the stipulations2
for the candidates to be called for the Personality Test (Interview) should
be determined accordingly by the Commission.
(e) Marks to be kept earmarked for the Personality Test (Interview)
should not exceed 10% of the total marks of the written (Main) Examination.
This will, thus, work out to 100 marks, which, in the opinion of the Commission,
is more than enough for this segment of the examination. It is to be remembered
that maximum complaints of favouritism and arbitrariness are received only in
this section of the examination. Hence, it is necessary to keep a cap on the
marks allotted for the Personality Test.
(f) The trainee-officers should be evaluated at the end of the institutionalcum-field training through a formal system of examination and the marks obtained
in this examination be added to the marks obtained by the candidates in the
Civil Services (Main) Examination to determine their final inter-se service
seniority. A maximum of 100 marks could be kept earmarked for this purpose.
The details of the areas in which the institutional examination is to be conducted
should be left to the concerned parent departments to work out in consultation
with their training institutions and the Jharkhand Public Service Commission."
2
(1)100 marks Language paper of mains be of qualifying nature only in which a
candidate shall secure minimum 30 marks out of the Combined Hindi & English
(10th standard paper of 100 marks).
(2) The Revised Examination Pattern Syllabus shall be effective from the 6th
Combined Civil Services Examination only so that candidates get clear 15 months
to prepare as per the revised pattern and syllabus. The next 5th Combined Civil
Services Examination will be on the existing (Mains) syllabus.
(3) Before issuing the notification of revised syllabus Jharkhand Public Service
Commission shall get the syllabus of 9 Regional Languages and Hindi, Urdu,
Sanskrit, Oriya, Bangla and English Language & Literature finalized by Expert
Committee in its final meeting in which the Expert Committee Report was
adopted.
The Committee thus resolves this day i.e. 2nd April, 2013 to forward
the V.S. Dubey Expert Committee Report to the Chief Secretary, Government
of Jharkhand along with the Commission's above recommendations for
acceptance as early as possible with a view to ensure that the Revised Pattern
can be enforced from the 6th Combined Civil Services Examination to be held in
2014 giving candidates at least 15 months to prepare on the basis of revised
pattern."
"''12. Formation of exam: Preliminary test and main exam (written &
interview) will be organized for selection.
(A) Preliminary test: Candidates 15 times of the number of categorywise vacancies will be shortlisted for main exam on the basis of
preliminary test. Preliminary test will comprise two papers having
total marks of 200-200 (total Four Hundred). Their marks obtained
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7. Respondent No.1 approved the methodology and course of the
Combined Civil Services Examination as advised by the Dubey Committee
will not be added with marks of main exam or interview. Exam of
both papers will be O.M.R. based. It will be necessary to fill OMR
in Preliminary Test properly otherwise, candidature will be
cancelled. It will be compulsory to include candidates in all subjects/
papers of Preliminary Test. Course of Preliminary Test is as under:-
SYLLABUS FOR THE PRELIMINARY TEST OF COMBINED
CIVIL SERVICES EXAMINATION- 2016
The Preliminary Examination shall consist of two compulsory papers,
each of 200 marks namely,
(i) General Studies Paper - I
(ii) General Studies Paper - II
Both the question papers shall be of multiple choices, objective type.
The question papers will be set both in Hindi and English. However,
questions set to test the comprehensive skill and knowledge of language
and grammar shall be only in the concerned language, without providing
Hindi or English translation thereof.
xxxx
xxxx
xxxx
(A) Main Exam: According to vacancies three times candidates will be invited
for interview on the basis of main exam. Main exam will comprise 06
papers, total marks of which would be 1050. It would be mandatory for
candidates to appear in all the subjects/papers of Main Exam. Course of
Main Exam is as follows:-
MAIN EXAMINATION
[No optional subjects. All are common compulsory papers)
Subject
Duration
Full Marks
Remarks
Paper-I: General Hindi & General English,
having two separate sections on (i) General
Hindi and (ii) General English, each of 50 marks
3 hours
100
Descriptive Type This
paper is qualifying in
which
minimum
30
marks is mandatory
Paper-II: Language and Literature: Under this
paper, every candidate will have to opt for one
language and literature out of fifteen listed by the
commission
3 hours
150
Descriptive Type
Paper-III: Social Science, having two distinct
sections of (i) History (ii) Geography, each of
equal weightage.
3 hours
200
Descriptive Type
Paper-IV: Indian Constitution & Policy, Public
Administration & Good Governance.
3 hours
200
Descriptive Type
Paper-V: Indian Economy, Globalization and
Sustainable Development.
3 hours
200
Descriptive Type
Paper-VI: General Sciences, Environment &
Technology Development.
3 hours
200
Descriptive Type
These papers are common to all candidates.
(c) xxxx
xxxx
xxxx
"13. Minimum qualifying marks of Preliminary & Main Exam:-
BARUN KUMAR & ORS. v. STATE OF JHARKHAND & ORS.
[AJAY RASTOGI, J.]
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[2022] 16 S.C.R.
with modifications as suggested by the Commission and made it applicable
to the 6th Combined Civil Services Examination by its notification dated
25th September, 2013. However, later pursuant to the recommendations
of the High-Level Committee headed by the Minister in-charge,
respondent no.1 further amended the curriculum and methodology of
the Combined Civil Services Examination being conducted by respondent
no.3 (Commission) with change of pattern of examination vide notification
dated 21st April 2016.
8. Accordingly, the Commission published Advertisement No.23/
2016 holding 6th Combined Civil Services Examination, 2016 dated 6th
October, 2016. Clause 12 and 13 of the advertisement which are the
cause of dispute, with which we are concerned in the present batch of
appeals, are reproduced as under:
9. Pursuant to the advertisement of 6th Combined Civil Services
Examination, all the applicants, including the appellants and the private
respondents, appeared in the first instance in preliminary examination
and the result of the preliminary examination was published on 23rd
February 2017, which was further updated on 2nd March, 2017 by
declaring the candidates 15 times of the number of vacancies to appear
in the main examination. On 13th April 2017, the result of the preliminary
examination was further declared and thereafter there was a series of
litigation questioning the pattern or result of the preliminary examination
declared by the Commission and one of the issues of preliminary
examination travelled to this Court which came to be decided in Civil
Appeal no.9217 of 2018 by this Court by order dated 10th September,
20183
.
The minimum qualifying marks determined as above will be applicable
equally on all the written tests (Objective/Subjective) for various reserved
categories for competitive exams of all the services/cadres. It would be
mandatory for candidates of all the categories to obtain 30 marks in PaperI of Main Exam. (General Hindi & General English).
Note: In the light of Resolution No.8315 dated 16.09.2015 of the Department
of Personnel Administrative Reforms & Official Language, compulsion of
obtaining minimum qualifying marks for interview in Civil Service competitive
Test has been discontinued."
3
"O R D E R
Leave granted.
The controversy in the present appeal arose because certain answers
that were given to questions were considered to be incorrect in the preliminary
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10. This Court has expressed that there appears to be an ambiguity
in the terms of advertisement disclosed to the candidates who had
intended to participate in the selection process and that stipulation of
40% marks in the preliminary examination as opposed to two separate
papers in the examination, this Court expressed its opinion that the
candidate has to get 40% marks in the aggregate insofar as the two
papers are concerned. Although it was later indicated that what is being
expressed by this Court may not be treated as a precedent.
11. So far as the preliminary examination is concerned, even what
was expressed by this Court was not taken to be a final conclusion on
the issue, the learned Single Judge of the High Court revisited the scheme
of the selection process of preliminary examination decided the
controversy in the case of Joy Guria Vs. State of Jharkhand and others
[W.P.(S) No. 4188 of 2018] under its judgment dated 20th December,
2018 holding that in the preliminary examination, the candidate has to
obtain qualifying marks in both the papers and after the list of successful
candidates was published, the main written examination was conducted
from 28th January, 2019 to 1st February, 2019 and the result of the main
examination that was taken up by the candidates, which consisted of two
general papers.
The minimum marks, as stated in the advertisement, were said to
be 40 per cent for the unreserved category to be eligible, once the preliminary
examination had been taken, thereafter to proceed with the main examination.
Since it is clear on a reading of the advertisement dated October,
2016 that 40 per cent is the marks of the preliminary examination as opposed
to marks of two separate papers in that examination, we are of the opinion that
this candidate was told that she has to get 40 percent in the aggregate insofar as
the two papers are concerned.
We have also been informed by the State Government that owning
to the supposed ambiguity in the advertisement, a Committee has gone into the
same and has since opined what was meant by "preliminary examination" is
that 40 per cent minimum marks should be obtained in each paper.
We are of the view that the ambiguity, if any, in the advertisement
must fall in favour of the candidate who goes by the advertisement as it originally
stood.
Since it is clear that even without looking into the correctness of
the answers, so far as six questions are concerned, that the petitioner has in fact
obtained 40 per cent in both the papers taken together, the appellant shall be
allowed to appear for the main examination.
The appeal is disposed of accordingly.
Since the appellant alone is before us, we make it clear that anything
said in the order will not be treated as a precedent."
BARUN KUMAR & ORS. v. STATE OF JHARKHAND & ORS.
[AJAY RASTOGI, J.]
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examination was declared on 15th February, 2020 and all the successful
candidates in the written examination who fell in the zone of consideration
were called for viva voce and the result of the candidates who qualified
and successfully cleared all the stages, the final merit list was published
of the selected candidates by the Commission on 21st April, 2020 and
after the recommendations were approved by the Government of
Jharkhand, the successful candidates of the 6th Combined Civil Services
Examination, 2016 against 326 posts were appointed on various dates
from June, 2020 to July, 2020 and so far as the appellants in the instant
batch of appeals are concerned, including other selected candidates,
were appointed by the Government vide notification dated 29th July 2020.
12. Several writ petitions later on came to be filed before the
learned Single Judge of the High Court assailing the result of the main
examination dated 21st April, 2020 of the 6th Combined Civil Services
Examination, 2016 and since there are contentious issues, as alleged,
came to be raised in the batch of writ petitions, the learned Single Judge
of the High Court bifurcated the issues into four groups.
13. Insofar as the present appellants are concerned, they belong
to the fourth group. The learned Single Judge of the High Court, after
interpreting clause 12 and 13 of the advertisement read with Rule 16 of
the scheme of Rules 1951, arrived to a conclusion that so far as the main
examination is concerned, Paper-I of General Hindi/General English,
was a qualifying paper for which the candidate has to secure 30 marks,
and the merit of the candidate is to be assessed on the basis of remaining
5 papers in which the candidate has to secure minimum qualifying marks
in each of the paper and since this procedure has not been followed by
the respondents, accordingly, by a common judgment dated 7th June,
2021, set aside the merit list prepared by the Commission with a direction
to prepare a fresh merit list with reference to the marks obtained in the
written test (5 papers) and viva-voce, without adding the marks of PaperI and thereafter the final select list may be drawn in accordance with
law.
14. It may be relevant to note that during the course of pendency
of the LPAs, interim applications were disposed of by the Division Bench
by an order dated 10th August 2021, wherein it was directed that the
parties shall maintain status-quo and it was further recorded that the
appellants have undertaken that they will not plead equity in case any
adverse decision is passed by the High Court on the ground that the
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appeal remained pending and during that period they remained in
employment.
15. The issues which were framed for consideration by the Division
Bench of the High Court and held as under:
"Issue no.(i)
Whether the marks obtained in Paper-I were to be added in total
marks?
Issue no.(i) is answered by the High Court as under:-
that the marks obtained in Paper-I (Mains Examination) were not
to be added in total marks while preparing merit list for declaration
of the candidature of one or the other candidate.
Issue no.(ii)
Whether the merit list prepared by the JPSC based upon the
'aggregate qualifying marks' of all subjects or 'minimum qualifying
marks' in each of the subjects, is considered to be correct?
Issue no.(iii)
Whether the stand which has been taken by the JPSC as also the
State before the Court of law based upon which the order has
been passed in Joy Guria (supra) or the contrary view taken
while preparing the merit list of the successful candidate in 6th
Combined Civil Service Competitive Examination conducted by
JPSC is considered to be correct?
Issue nos.(ii) and (iii) are answered by the High Court as
under:-
(ii) 'Minimum qualifying marks' in each subject (Main Examination)
is correct interpretation; and
(iii) the stand which has been taken by the JPSC as also the State
before the Court of law based upon which the order has been
passed in Joy Guria (supra) is correct approach.
16. The Division Bench of the High Court held that the marks
obtained in Paper I of Written Examination were not to be added in the
total marks and in terms of clause 13 of the advertisement, qualifying
marks have to be secured by the candidates in each subject paper (5
papers) which, according to the Division Bench, was in conformity with
BARUN KUMAR & ORS. v. STATE OF JHARKHAND & ORS.
[AJAY RASTOGI, J.]
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Rule 16 of the Rules, 1951 under the judgment and order impugned
dated 23rd February 2022, which is the subject matter of challenge in
appeals before us.
17. Learned counsel for the appellants jointly submits that there is
no ambiguity or any later amendment in Rule 16 of the Rules, 1951 and
so far as the proviso appended to Rule 16 is concerned, it has to be read
with clause (a) and (b) to Rule 16. Clause (a) gives discretion to the
Commission to fix the qualifying marks in any or all the subjects at the
written examination. At the same time, clause (b) provides for qualifying
marks which can be fixed by the Commission in its discretion for the
candidates of Scheduled Castes/Scheduled Tribes but shall not be higher
than 35% for the Bihar Civil Service (Executive Branch). If clause (a)
and (b) are read in conjunction, it makes it explicitly clear that clause (a)
is general in nature and emphasizes on the discretion of the Commission
to fix the qualifying marks in any or all subjects in reference to the
candidate appearing in the examination. However, clause (b) carves out
an exception and only emphasizes for the Scheduled Castes and
Scheduled Tribes candidates. So far as the proviso added to Rule 16 is
concerned, it postulates that only after crossing the threshold, the total
marks secured by the candidate would be taken into consideration for
determining the suitability of the candidate for appointment.
18. That apart, proviso to Rule 17 categorically empowers to relax
the norms for Scheduled Castes and Scheduled Tribes despite not having
secured the minimum qualifying marks as fixed by the Commission under
Rule 16(a) and (b) with the prior approval of the Government. Thus,
what is being observed by the Division Bench in interpreting proviso to
Rule 16 being confined to clause (b) alone and not to clause(a) and
clause (b) is a complete misreading of the Rule 16 of the Rules 1951.
19. So far as the qualifying Paper I and determination of merit
based on the other 5 subject papers in the written examination is
concerned, learned counsel submits that clause 12(b) of the advertisement
clearly postulates that total number of marks would be 1050 and it will
be mandatory for the candidates to appear in all the subjects/papers of
the main examination. Although the remarks-column in Paper-I indicates
that it is a qualifying paper in which minimum 30 marks are mandatory
and in the remaining subject papers, one has to secure 40% marks but
there is no indication whether it has to be in individual paper or the total
marks obtained in the written examination for adjudging the suitability
for appointment.
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20. Thus, in the given circumstances, what is being construed by
the Commission in preparing the merit list of the candidates based on the
marks secured by the candidate out of 1050 marks for determining merit
in the written examination to be called for interview is a reasonable
interpretation which ordinarily was not open for the High Court to interfere
with within the limited scope of judicial review under Article 226 of the
Constitution.
21. Learned counsel further submits that the interpretation which
has been afforded by the High Court after deliberation may also be one
of the plausible interpretations in reference to clause 12 and 13 of the
advertisement but what is being interpreted by the Commission while
preparing the merit list of the written examination cannot be completely
ruled out. In this state of affairs, the selection process which once has
attained finality and the appellants have been appointed after the
recommendations were approved by the State Government and have
completed the period of probation, merely because there was an interim
order passed by the High Court where an equity may not be claimed but
for all practical purposes, they are working for almost two years by this
time, this fact cannot be ruled out and submits that in the given facts and
circumstances, the judgment passed by the High Court is not sustainable
in law.
22. Learned counsel further submits that if the respondents have
consistently followed the practice in the past of preparing the merit list
on the basis of total marks secured by the candidate in the main
examination held earlier and that can be reasonably construed from clause
12 and 13 of the advertisement and there is no amendment to Rule 16 of
the scheme of Rules, 1951 and that being so, it was an apparent error
committed by the High Court in overruling the settled practice which
was being followed consistently by the Commission for sufficiently long
time, in the given circumstances, there was no justification for the High
Court to unsettle the settled past practice followed by the Commission in
exercise of its limited power of judicial review under Article 226 of the
Constitution.
23. Per contra, learned counsel for the respondents submits that
the procedure for selection for preliminary and main examination is to
be regulated in terms of clause 12 and 13 of the advertisement and it
only refers to the qualifying marks to be secured by the candidates, and
if Clause 12 and 13 are to be read in conjunction, the only irresistible
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conclusion and the interpretation coming forward would be that PaperI of the written examination although is a part of the scheme of the
examination but one has to secure only 30% marks to qualify and the
merit list has to be determined on the basis of the written examination of
remaining subject papers (5 papers) in which the candidate has to secure
qualifying marks in each paper and that being the manifest error which
the Commission has committed in preparing the merit list and that has
been rectified by the High Court in the impugned judgment and the
respondents are equally qualified and they would have been placed in
the order of merit provided the Commission would have published the
list of selected candidates in conformity with clause 12 and 13 of the
advertisement read with Rule 16 of the Rules 1951.
24. Learned counsel further submits that there is no delay on the
part of the respondents in approaching the Court for redressal of their
grievances and at least latches, in no manner, be attributed to them.
Once their right has been safeguarded by the interim order of which a
reference has been made, at least their right of fair consideration in
revising the merit list of the written examination in terms of the order of
the Division Bench may not be interfered with by this Court.
25. Learned counsel further submits that so far as Rule 16 of the
scheme of the Rules, 1951 is concerned, if the punctuation mark is noticed
after Rule 16(a), the Legislature in its wisdom has put a little full stop(.)
and after clause (b), there is colon(:), and thereafter, the proviso has
been added which clearly indicates that proviso is only related to clause
(b) to Rule 16 and this being the only irresistible interpretation of the
scheme of Rule 16 of Rules, 1951 which has been confirmed by the
High Court after a detailed discussion in the impugned judgment, binds
the authority to take further action in publishing the merit list of the main
written examination in terms of the conditions of advertisement needs
no further interference of this Court.
26. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
27. Before we proceed to examine the questions raised in the
instant appeals, let us take the bird's eye view of the scheme of Rules
1951. Rules 15, 16 and 17 of the Rules 1951 relevant for the purpose are
reproduced hereinbelow:
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"15. The examination shall be held according to the syllabus
specified in Appendix D to these rules which are liable to alteration
from time to time by the Commission with the prior approval of
the State Government.
16. (a) The Commission shall have discretion to fix the qualifying
marks in any or all the subjects at the written examination.
(b) The minimum qualifying marks for candidates belonging to
the Scheduled Castes and the Scheduled Tribes shall not be higher
than 35% for the Bihar Civil Service (Executive Branch), and
30% for the Bihar Junior Civil Service 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 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
shall be taken into consideration.
(c) There shall be no qualifying marks for the viva voce test.
17. On the basis of the marks obtained at the written examination,
the Commission shall arrange for a viva voce test of the candidates
who have qualified at the written examination according to Rule
16 (a) or (b):
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
Scheduled Tribes to the viva voce test even though they may not
have obtained the minimum qualifying marks at the written test
prescribed in Clause (a) or (b) of Rule 16."
28. The undisputed facts which may be noticed for completion of
facts referred to supra clearly manifest that the 6th Combined Civil
Services Examination was notified by the Commission on 6th October,
2016 for filling up of 326 posts of different services under the State of
Jharkhand and recruitment is to be made in terms of the Bihar Civil
Service (Executive Branch) and Rules, 1951 which were adopted by
the State of Jharkhand by notification dated 9th November 2002.
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29.