Full Judgment Text
2024 INSC 531
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2024
(Arising out of SLP(C)Nos.9656-9657 of 2023)
BIHAR STAFF SELECTION
COMMISSION & ANR. …APPELLANT(S)
VERSUS
HIMAL KUMARI & ANR. ETC. …RESPONDENT(S)
J U D G M E N T
VIKRAM NATH, J.
1. Leave Granted
2. The appeals under consideration challenges the
validity of the judgment dated 20 December 2022
(Corrected on 22 February 2023) passed by the
Patna High Court in L.P.A. No's 412 and 109 of 2021
arising out of C.W.J.C. No. 7051/2020, whereby the
Division Bench of the High Court dismissed both the
appeals and refused to interfere with the judgment
Signature Not Verified
Digitally signed by
Neetu Khajuria
Date: 2024.07.16
19:34:05 IST
Reason:
and order dated 15.10.2020 passed by the Single
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Judge.
3. The issue pertains to the selection and appointment
to the post of City Manager under the Urban
Development and Housing Department, Govt.of
Bihar. The said post is governed by the Bihar City
Manager Cadre (Appointment and Service
1
Conditions) Rules, 2014 , which were framed under
Article 309 of the Constitution of India.
4. For the present case, it is relevant to reproduce Rule
5 and Rule 11 of Rules 2014, which reads as follows:
"Rule 5 - Process of Recruitment, appointment and
procedure of Recruitment:- (1) Appointment to the basic
category of these posts in this cadre, will be by direct
Recruitment (written examination) on the
recommendation of the Commission. Total 100 marks
will be determined for direct Recruitment.
Out of total 100 marks, 70 marks will be determined
for the written examination. 10 marks for experience
for every year and a maxi-mum 30 marks shall be
given for the appointment to the post of City Manager
working on contract basis.
Determination of subjects for written examination will
be determining by the Commission in consultation with
1
Rules, 2014
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the Department.
(ii) Not withstanding anything contain in these Rules,
where any post in the cadre is vacant due to
unavailability of suitable candidate or where any post
is vacant due to leave of anyone or is vacant on
temporary basis, in the interest of work that post may
be filled up by suitable qualification holder person by
deputation/ contract basis.
Rule 11 - Residual matters.- Rules, regulations and
orders of the State Government for employees of
suitable level will apply for members of this cadre with
regard to the matters particularly not covered in these
Rules or any regulations made under these Rules."
5. Appellants issued an advertisement dated
15.11.2016 under Rules, 2014, for appointment to
152 posts of City Managers in the State of Bihar. The
advertisement contained the required information
regarding the vacancies, eligibility, criteria etc. and
the selection procedure to be followed for the
appointment.
6. In the advertisement, the sub-heading of the
'Selection Process' states,
"The commission will prepare a merit list on the basis
of written examination and experience (for candidates
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working on the post of City Manager on contract) after
receiving online applications submitted by eligible
candidates. Total 100 marks will be determined for
direct Recruitment. The written examination will be
conducted of 100 questions and each question carrying
0.70 marks. 0.70 marks will be given for the correct
answer and 0.70/4 marks will be deducted for the
wrong answer.
Similarly, out of total 100 marks, 70 marks will be
determined for written examination. Candidates
working on contract basis on the post of City Manager
will be given 10 marks per year and maximum 30
marks for their experience."
7. The sub-heading of the 'Qualifying marks' states
"The minimum qualifying marks for the candidates for
the written test are as follows:-
General Class - 40%
Backward Class - 36.5%
Most Backward Class - 34%
SC/ST - 32% Female - 32%".
8. Under the said advertisement, Respondent No. 1,
who had no prior work experience, participated in
the written examination conducted by the
appellants for the said post. She achieved 22.575
marks out of 70 in the written examination. The
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appellants declared her unsuccessful vide
communication dated 27.12.2019. The reason for
declaring respondent no. 1 as unsuccessful was that
she did not obtain the minimum qualifying marks of
32% as she had secured 22.5 marks in the written
test and as she had no prior work experience, she
achieved 0 marks out of 30 for the work experience.
In totality, she has achieved 22.5 marks out of 100,
below the minimum requirement of 32%. Meanwhile,
respondent no. 1 contends that the minimum
requirement of 32% mentioned in the advertisement
is just for the written test as per a simple textual
interpretation. She has achieved 22.5 marks out of
70, which comes to 32.14%, above the minimum
qualifying marks of 32%.
9. Dissatisfied with the result communicated to her,
she approached the High Court by filing a writ
petition registered as C.W.J.C. No. 7051/2020,
praying therein for issuance of an appropriate
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writ/order/direction to the appellants to call her for
counselling as she was qualified as per the
advertisement and secured more marks than the
qualifying marks prescribed for the written test. She
further prayed for quashing the letter dated
27.12.2019 and also for issuing directions for giving
her appointment.
10. The Single Judge allowed the Writ Petition vide
judgment dated 15.10.2020. The operative part of
the judgment in favour of respondent No. 1 reads as
under:
"Considering the submission of the parties and also on
consideration of the advertisement which contains the
qualifying marks, the Court is of the considered view
that the minimum qualifying marks is relatable to only
written test and once the candidates qualified in the
written test he is entitled to be considered for
preparation of merit list and those candidates who
qualified in the written test cannot be excluded from
consideration zone on the ground that the candidates
failed to obtain qualifying marks over and above
qualifying marks in the written test. Not only written
examination but also 40%, 36.5%, 34%, 32% and 32%
in General, BC, E.B.C., SC/ST and female categories
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on the basis of total 100 marks which includes written
test as well as experience. Accordingly, the writ
petition is disposed of with direction to the respondents
to consider the case of the Petitioner and alike for
appointment against the post of City Manager on the
basis of qualifying marks in the written test and
prepare merit list. The entire exercise in this regard
must be completed by the respondents at the earliest
preferably within a period of three months from the
date of receipt/production of a copy of this order."
11. Aggrieved by the judgment, the appellants filed
L.P.A. No. 412/2021 before the Division Bench.
Some candidates also preferred an L.P.A. No.
109/2021 against the judgment of the Single Judge
because despite having experience and more marks
than Respondent No. 1 they would be adversely
affected by the above judgment.
12. The appellant Commission was relying on an
Executive Order dated 16.07.2007, which stated
"Uniform determination of minimum qualifying marks
for various competitive examinations has been done by
Resolution Nos. - 15838 dated 22.12.90 and 10258
dated 05.08.91 in the following form:-
General Category -40%
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Backward Class -36.5%
Backward Class Annexure 1- 34%
SC/ST & Women Class-32%
The determination of minimum qualifying marks in the
above form will be equally applicable to all written
examinations (objective/subjective) for various
reservation categories for competitive examinations of
all services/cadres. Wherever applicable, it will be
mandatory to obtain above minimum qualifying marks
in the interview"
13. The Division Bench specifically dealt with the
Executive order dated 16.07.2007 and dismissed the
said L.P.A.'s for the reasons recorded which are
reproduced hereunder:
"Heard learned counsels for the respective parties.
Core issue involved in the present lis is whether
Commission has committed error in taking note of
criteria laid down in the executive order issued under
Article 166 of the Constitution dated 16.07.2007 as
one of the criteria for the purpose of City Manager post
or not? First respondent was candidate for Recruitment
to the post of City Manager and she was un-successful,
therefore, she has approached this Court. Her
grievance is that having regard to the merit read with
the number of vacancies she is entitled to selection and
appointment to the post of City Manager and further
submitted that if Women Reservation (Horizontal
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Reservation) is given effect even in such circumstances
the first respondent is entitled. The post of City
Manager is governed by Rules, 2014. Perusal of Rule
5 read with Rule 11 there is no adoption of Government
order dated 16.07.2007 in so far as criteria in other
words addition to what-ever the procedure prescribed
in Rule-5 and Rule 11 of Rules, 2014 is relating to the
present selection and appointment procedure &
applicability of various Rules & Government Orders in
so far such of those persons enter the cadre & it is not
related to selection procedure. On the other hand if any
Government order subsequent to Rules, whatever the
government order and Rules are applicable to the City
Manager Cadre Post. Rule 11 cannot be read with Rule
5 so as to read additional criteria for the purpose of
selection and appointment to the post of City Manager.
Supplant by any material information by means of
executive order without tinkering the original rule could
be issued however, in the present, case executive order
is dated 16.07.2007 on the other hand Rules is of the
year 2014 there cannot be a supplant of Government
order dated 16.07.2007 to Rules, 2014.
In the light of these facts and circumstances, the
appellant have not made out a case so as to interfere
with the order of the learned Single Judge…."
14. Aggrieved by the impugned judgment and order
dated 20.12.2022 (Corrected on 23.02.2023),
Appellants have approached this Court by filing the
present appeals.
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15. Upon thoroughly examining all the records and
arguments presented, we find that the impugned
judgment is justified and correct. The judgment
warrants no interference. The Division Bench has
rightly confirmed the judgment passed by the Ld.
Single Judge.
16. A conjoint reading of the Rules, 2014 in
particular rules 5 and 11, with the advertisement
and giving it a pragmatic and harmonious
construction, what emerges is that 32% in the
written examination would make a candidate eligible
and qualified to be placed in the consideration zone.
However, the merit list would be prepared after
taking into consideration the marks obtained on
account of experience. Thus, a candidate similar to
respondent no.1 would be eligible to be considered
for appointment having scored 32% marks (22.5
marks out of 70) in the written examination even
though having no experience. Whereas another
candidate who has scored 32% marks in the written
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with three years experience will have scored a total
of 22.5 plus 30 a total of 52.5 marks out of 100.
Such a candidate will stand much higher in the
merit list. The candidate with just qualifying 32%
marks in the written (22.5 out of 70) with no
experience will stand almost at the bottom of the
merit list, but still she will be eligible and qualified
to be appointed provided the merit list goes as low
as 22.5 marks out of 100. Another example may be
referred where a candidate has three years of
experience (30 marks) but scores only seven marks
out of 70 in the written test (10% marks in the
written test) even though the total obtained would be
37 marks but would not be eligible or qualified to be
considered as the minimum required marks in the
written test i.e. 32% has not been obtained by the
said candidate.
17. The required minimum qualifying marks are
concerned with marks obtained in the written test
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only, as is evident from the Rules 2014 as also the
advertisement, and it has no relevance so far as for
the final preparation of the merit list. The conduct of
the appellants by not including respondent no. 1 in
the merit list is not in consonance with the said
advertisement.
18. The merit list was prepared in terms of Rule 5,
read with Rule 11 of Rules 2014, which has been
presented at the beginning of the judgment. Rules 5
and 11 deal with the process of Recruitment,
appointment, recruitment procedure, and Residual
matters. Nowhere in such rules there is mention of
any minimum qualifying marks required out of a
total of 100 marks.
19. The appellants have argued that doubts and
ambiguities in Rules 2014 can be successfully
cleared using an Executive Order without tinkering
with the original Rule. In the present case, the
Executive Order is dated 16.07.2007 which is much
earlier to the Rules which are of 2014. Therefore, the
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Executive Order of 2007 is in no way clarificatory or
explanatory with respect to the Rules of 2014. The
Division Bench rightly discarded the applicability of
the Executive Order dated 16.07.2007. The only
criteria for minimum qualifying marks have been
mentioned in the Rules 2014 and the advertisement,
which states that 32 % for women is the minimum
qualifying marks for the written test (70 marks) and
not out of 100 marks as interpreted by the
appellants.
20. The judgment in the case of Employees’ State
2
Insurance Corporation vs. Union of India & Ors. ,
relied upon on behalf of the appellants has no
application in the facts of the present case. In the
above judgment one of the issues was whether the
executive decision will prevail or the statutory
regulations. This Court, relying upon the settled law,
held that the statutory regulations will prevail. In
2
(2022) 11 SCC 392
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the present case the view taken by the High Court is
also giving primacy to the Rules 2014 as compared
to an earlier executive decision dated 16.07.2007. In
fact the above judgment helps respondent no.1.
21. Respondent no. 1 received 22.5 marks out of
70, 32.14 per cent, above the minimum qualifying
marks of 32 per cent as per the advertisement.
Therefore, the appellants were not right by denying
her a place on the merit list. Impugned judgement
does not warrant any interference.
22. Accordingly, these appeals are dismissed.
……………………………………J.
(VIKRAM NATH)
……………………………………J.
(PRASANNA BHALACHANDRA VARALE)
NEW DELHI
JULY 16, 2024
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