The State Of Bihar & Ors vs Pinku Kumar Singh & Ors on 13 July, 2011

Patna High Court
The State Of Bihar & Ors vs Pinku Kumar Singh & Ors on 13 July, 2011
Author: Shiva Kirti Singh
                                     Letters Patent Appeal No.634 of 2011


   1.  The State Of Bihar
   2.  The Central Selection Board of Constable, Bihar Patna through its Secretary
   3.  The Chairman of the Central Selection Board of Constable, Bihar Patna
   4.  The Secretary of the Central Selection Board of Constable, Bihar, Patna ..Appellants
                                                        Versus
   1. Pinku Kumar Singh S/o Shri Gaya Prasad Singh, Vill. + PO Sheopur, PS Bikramganj,
       District Rohtas, Pin- 802204, Roll no. 66060302
   2. Bishwajeet Kumar S/o Shri Mahendra Singh Vill. + PO- Kanbehri, PS Muffasil, Distt.-
       Aurangabad (Bihar) Roll No. 64030080
   3. Ashutosh Kumar S/o Late Shri Ramnarayan Singh Vill.+ PO- Ramdiri ( Lawarkchak), PS
       Matihani, Distt- Begusarai, Roll no. 95010899
   4. Brijmohan Singh, S/o Sheodayal Singh, Vill- Sahpur, PO Sahpur, PS Sahpur, Distt- Patna
       Roll No. 60640259
   5. Nikesh Kumar S/o Shri Surendra Prasad Vill.+ PO- Kapasiya, PS Paraiya, Distt- Gaya,
       Roll No. 62050049
   6. Pawan Kumar S/o Krishna Murari Singh Vill- Garfuchak, P.O. B.V. College, P.S. Airport,
       Distt- Patna Roll no. 60560337
   7. Pankaj Kumar Singh S/o Shri Ram Pravesh Singh Vill- Bhakhra, PO Deshpur (Amba) PS
       Amba Distt- Aurangabad Roll No. 64540761
   8. Shitanshu Vyas S/o Shri Anirudh Jha Vill.+ PO- Bhatihani, PS Bhatihani, Distt- Begusarai
       Roll No. 95050118
   9. Arun Kumar Pandey S/o Lal Mani Pandey Vill- Bahdura PO Dadar PS Mohania Distt-
       Bhabua (Kaimur) Roll no. 69190718
   10. Rajesh Ranjan S/o Sajadhar Prasad Yadav Vill- Bahurwa PO Kanjari PS Salkhuwa Distt-
       Saharsa, Roll No. 60730238
   11. Bikesh Kumar S/o Jhakash Sah Vill- Hussainchak, PO Mahkhar PS Simri Bakhtiyarpur,
       Distt- Saharsa Roll No. 81060490
   12. Bablu Yadav S/o Dinesh Kr. Singh Vill.+ PO+ PS Sisrit Tola, PS Nokha, Distt Rohtas
       Roll No.68050906                                                     .........Respondents


                                                      With
                                                LPA No.635 of 2011


   1.   The State Of Bihar Through D.G.P., Bihar, Patna
   2.   The Central Selection Board (Constable Recruitment) Bihar, Patna through its Secretary
   3.   The Chairman of the Central Selection Board (Constable Recruitment), Bihar, Patna
   4.   The Secretary of the Central Selection Board (Constable Recruitment) Bihar Patna
                                                                           ..........Appellants

                                                         Versus

   Ram Pravesh Yadav, S/o Mahendra Rai, R/O Vill- Behahiya, PO Darpa, Distt- East
Champaran, Roll No. 73180040                                  ...........Respondent

                                                      With
                                                LPA No.638 of 2011
                                                2




1.   The State Of Bihar through D.G.P., Bihar, Patna
2.   The Central Selection Board (Constable Recruitment) Bihar, Patna through its Secretary
3.   The Chairman of the Central Selection Board (Constable Recruitment), Bihar, Patna
4.   The Secretary of the Central Selection Board (Constable Recruitment), Bihar, Patna
                                                                         ............Appellants
                                                   Versus

 1. Sunil Kumar Singh S/O Shri Hare Krishna Singh, Resident Of Village Naryar, P.O.
 Naryar, P.S. Saharsa, District- Saharsa
  2. Arunam Kumar, S/O Chhatu Singh, Resident of Village + Post- Enai, District- Chapra
 (Bihar), Roll No.75100528
  3. Alok Kumar, S/O Surendra Mishra, Resident Of Village + Post + P.S. Bangaon West
 Tola, District- Saharsa, Roll No.81080341
  4. Pranav Kumar Singh, S/O Shishupal Singh, Resident Of Village- Bhalar, P.O. Bhalar,
 District- Munger (Bihar), Roll No.90010603
 5. Suren Kumar Singh, S/O Ramanand Singh, Resident Of Village Diyari, Post Sonali, P.S.
 Kadwa, District- Katihar, Roll No.86060074
 6. Santosh Kumar Singh, S/O Sri Surendra Singh, Resident Of Village Jagdishpur, P.O.
 Nawada, District- Buxar, Roll No.67090283
 7. Payprakash Kumar S/O Sri Uma Shankar Prasad, Resident Of Vill.- Lakhiboy, P.O.
 Masauri, District- Patna, Roll No.60490219
 8. Abhay Kumar, S/O Suresh Parasad Singh, Resident Of Vill.- Bhalar, P.O. Bhalar, District-
 Munger, Roll No.90050529
 9. Saurave Kumar, S/O Prakash Sharma, Resident Of Vill- Kheraihiya, Babatola, P.O.+P.S.
 Akbar Nagar, District- Bhagalpur
 10. Gautam Kumar Pandey, S/O Anil Kumar Pandey, R/O Vill+P.O.+P.S. Rahui, Distt-
 Nalanda, Roll No.61140140
 11. Pradeep Kumar Mishra, S/O Banshidhar Mishra, R/O Vill+P.O. Sonbarsa, District
 Bhojpur (Bihar), Roll No.60350633
 12. Ravi Kumar, S/O Parsuram Sinha, R/O Vill- Guljarbagh, Karpi, P.O. Karpi, District-
 Arwal, Roll No.62210770
 13. Amitabh, S/O Harnath Kunwar, R/O Vill- Chainpur Chamariya, P.O. Nawada, P.S.
 Masrakh, District- Chhapra (Saran), R.No.75310218
  14. Rajnish Kr.Tiwari, S/O Lal Babu Tiwari, R/O Vill+P.O. Kumana, District- Chapra, Roll
 No.75130209
 15. Bimlesh Kuamr, S/O Bidyanand Pd.Yadav, R/O Vill+P.O. Balha Bazar, P.S. Mansi,
 Distt.- Khagaria, Roll No.95030462
 16. Raju Kr.Singh, S/O Ramashankar Singh, R/O Vill- Mathurapur, P.S. Koilwar, Distt.-
 Bhojpur(Ara) Roll No.66350187
 17. Anil Kumar Jha, S/O Chandra Kant Jha, R/O Vill+P.O. Madhesra, Distt.- Sitamarhi, Roll
 No.72060631
 18. Manish Kumar Singh, S/O Rambhawan Singh, R/O Vill- Bank Mens, P.O.+P.S. Hajipur,
 Distt.- Vaishali, Roll No.71160218
 19. Avinash Priyadarshi, S/O Ajay Kumar Singh, R/O Vill- Parsurai, P.O. Panhar, P.S.
 Khudaganj, Distt- Nalanda, Roll No.61030596
 20. Manish Kuamr, S/O Mundrika Singh, R/O Vill-Biraini, P.O. Motha, P.S. Karakat, Distt-
 Rohtas, Roll No.68090400
 21. Tarun Kr.Yadav, S/O Vishwanath Yadav, R/O Vill+P.O. Suggapatti, Phulparas, Distt-
 Madhubani, Roll No.79010572
 22. Narottam Kumar, S/O Dilip Singh, R/O Vill.-Kishunpur, P.O. Kachanama, Distt-
 Jehanabad, Roll No.62120281
                                         3




23. Santosh Kumar, S/O Prasan Das, R/O Vill- Belahi, Post- Lohar, P.S. Pundol, Distt-
Madhubani, Roll No.79030116
24. Alok Kr.Singh, S/O Virendra Pd.Singh, R/O Vill+P.O.- Babura, Distt.-Bhojpur(Ara),
Roll No.66010965
25. Sujit Kr.Singh, S/O Vikrama Singh, R/O Vill+P.O. Kundesar, Distt- Bhojpur, Roll
No.71120066
26. Sambhu Singh, S/O Rameshwar Singh, Vill- Bajruhan, P.O.- Udwant Nagar, Distt-
Bhojpur(Ara) Roll No.66200231
27. Rajeev Kr.Singh, S/O Balram Singh, R/O Vill-Samhota, P.O. Kopasamhota (South Tola),
Distt.- Chapra, Roll No.75440024
 28. Mirtunjay Kumar Singh, S/O Pawan Kr.Singh, R/O Vill- B.M.P., P.O.- R.T.S., P.S.
Singhoul, Distt.- Begusarai, R.No.95020680
29. Mukesh Kumar, S/O Indal Ram, R/O Vill.- Budhgharya, P.O. Paley, P.S. Walirgang,
Distt.-Gaya, Roll No.62150327
30. Vinay Kumar, S/O Mahendra Ram, R/O Vill- Budhgharya, P.O. Paley, P.S. Wazirganj,
Distt.- Gaya, Roll No.62320082
31. Adarsh Kumar, S/O Ramjanam Chaubey, R/O At Bishnopura, P.O. Imadpur, Distt.-
Bhojpur, Roll No.66260147
32. Vikash Kumar, S/O Janardan Prasad, R/O Vill+P.O.Nardiganj Road, Gadhpar, P.S.
Nawada, Distt.- Nawada, R.No.65120102
33. Gauri Shankar Kumar, S/O Saryug Yadav, R/O Vill+P.O. Sahugarh Karu, P.S.+ Distt.-
Madhepura, Roll No.82010259
34. Sunil Kr.Ja, S/O Vijay Prakash Jha, R/O Vill+P.O. Kataresh, Distt.- Katihar, Roll
No.89010471
 35. Anand Sagar, S/O Sighnath Singh, R/O Vill+P.O.- Karup, Distt.- Bhojpur, Roll
No.68010667
 36. Vikram Kumar, S/O Sri Mohan Pd. Yadav, R/O Vill- Kanhainagar, P.S. Nawada, Distt.-
Nawada, Roll No.65080240
 37. Durgesh Kr.Singh, S/O Rajeshwar Singh, R/O Vill- Dudhi West, P.O.+P.S. , Distt.-
Saran, Roll No.75340064
 38. Vishwajeet Kr., S/O Bhushan Chaudhari, R/O B.M.P.-5, D.I.G. Office, P.O.-
B.V.College, P.S. Airport, Distt.- Patna, Roll No.60700026
 39. Nawin Kumar, S/O Satendra Singh, R/O Vill.- Gangti, P.O.+P.S.- Kaludganj, Distt.-
Nalanda, Roll No.61220018
40. Zahid Alam, S/O Jahangir Alam, R/O Ehsania Hotel Nagni Chowk Ganj No.2, Ward
No.19 Bettiah, Distt.- West Champaran, Roll No.74050233
 41. Anish Kr.Singh, S/O Paras Singh, R/O Vill.+Post Ramper Souna, Distt.- West
Champaran, Roll No.74010195
42. Akash, S/O Rambilash Sharma, R/O Vill- Vankosh & Company, P.S.- Patliputra Colony,
Distt.- Patna, Roll No.60310563
43. Washim Akram, S/O Zahiruddin Khan, R/O Vill- Baranpura, P.O.+P.S. Khairah, Distt-
Chapra, Roll No.75230210
44. Rahul Kumaqr, S/O Shambhu Singh, R/O Vill- Kolhua, Post- Maijhara, Distt- Nalanda,
Roll No.61030608
45. Alok Kumar, S/O Amod Pathak, R/O Vill+Post- Bishnupur, Deorhi Via Barhara Kothi,
Distt.- Porniya, Roll No.84010593
46. Raj Kumar, S/O Manohar Pd.Yadav, R/O At+P.O.- Katra, P.S. Gopalpur, Distt.-
Bhagalpur, Roll No.89030649
47. Kamlesh Kumar, S/O Harishankar Sahu, R/O Vill- Kaurihar, P.O. Kharaujha, Chakiya,
Chandoli, Distt.- U.P., Roll No.78030446
                                           4




 48. Bednarayan Yadav, S/O Ramesh Yadav, R/O Vill+Post Baskatti, Bai-Bahera, Distt.-
Darbhanga, Roll No.78110369
49. Pradeep Yadav, C/O Ramgulam Mahto, R/O Vill- Dilawarpur, P.O.- Milkichak,
Darbhanga, Roll No.78040334
50. Ajit Kumar, S/O Kamleshwar Singh, R/O Vill- Vishnupuri Anisabad, Patna(2), Roll
No.60020244
51. Ajay Tiwari, C/O Prabhusaran Tiwari, R/O Vill+Post- Belshar, P.S. Barouli Via Jamo
Bazar, Distt.- Gopalganj, Roll No.77040703
52. Chandrashekhar Kr., S/O Arun Kumar, R/O Vill.- Naya Tola Khirodarpur, Post- Fatuha,
P.S. Khushrupur, District- Patna (Bihar), Roll No.60180172
 53. Bijay Kumar, S/O Badan Singh, R/O Vill.- Newtolia, P.O. Marar, P.S. Morkahi, Distt.-
Khagaria, Roll No.94020181
54. Raghvendra Kr.Tiwari, S/O Shailendra Tiwari, R/O Vill-Nijuara, Post- Moura, P.S.
Khaira, Via Gidhaur, Distt.- Jamui, Roll No.93070041
55. Manish Kumar Singh, S/O Moleshwari Pd.Singh, R/O Vill- Labhet, Post- Noomer, Distt.-
Jamui, Roll No.93010316
56. Sushil Kumar Kashyap, S/O Dhaniram Singh, R/O Vill.- Chouthi, Post- Dumraith, P.S.-
Bhabhua, Distt.- Kaimur, R.No.69040800
57. Shankar Kumar, S/O Ram Chandra Bhagat, R/O Vill- P.O. Kab, P.S.- Ranitalab, Distt.-
Patna, Roll No.60600165
58. Ranjeet Kumar, S/O Lt.Chamaru Pd.Singh, R/O At, P.O.- Sondiha, P.S. Pasraha, Distt.-
Khagaria, R. No.94050269
 59. Gyan Shankar Tiwari, S/O Nanho Tiwari, R/O Vill+P.O. Dharauli, Distt.- Chandauli
(U.P.), Roll No.80050298
60. Dhanjay Kr.Sharma, S/O Harishankar Thakur, R/O Vill + Post- Gahmar, Patti Ghopal
R.N.Gazipur (U.P.), Roll No.75020397
61. Deepak Kumar Singh, S/O Ajay Kumar Singh, R/O Vill.- Chainpurwan, P.O. Navaon,
P.S. Awtarnagar, Distt.- Saran, R.No.75330113
62. Pankaj Kumar, S/O Kamakhya Narayan Singh, R/O Vill+P.O.- Goriapur, Via Dighwara,
Distt- Saran, Roll No.75310112
63. Dinesh Kumar, S/O Suresh Pd.Yadav, R/O Vill- Araria, P.O. Balaha, Distt- Khagaria,
Roll No.94010495
64. Rajaram Kumar, S/O Yougal Singh, R/O Vil- Madhurapur, P.O. Madhurapur, Purbi,
Tola, Distt- Begusarai, Roll No.95060028
65. Mithilesh Kumar, S/O Ram Swarup Singh, R/O At+P.O.- Madhurapur, Purabarai Tola,
Distt- Begusarai, Roll No.95050113
66. Dhurendhar Kr. Yadav, S/O Ramreet Yadav, R/O Vill- Dewariya, P.O. Hasvalahi, Distt-
Chapra, Roll No.75040610 5
67. Kashinath Singh, S/O Dhupnarayan Singh, R/O Vill- Mandipur, P.O.- Natwar Semariya,
Distt- Chapra, Roll No.75040505
68. Mukesh Yadav, S/O Dudha Nath Yadav, R/O Vill- Dawariya, Via Gothani, Post-
Tandwa, Distt- Siwan, Roll No.76160499
 69. Murari Kumar, S/O Chandramouli Singh, R/O At+P.O. Kochgaon, Distt- Nawadah, Roll
No.65050448
70. Ranjan Kumar, S/O Late Virendra Singh, R/O At+P.O.- Kochgaon, Distt- Nawadah, Roll
No.65080299
71. Jay Shankar Singh, S/O Surya Singh, R/O Vill- Fakuli, P.S.- Awatarnagar, Distt- Saran,
Roll No.75040210
72. Shiv Shankar Kumar, Son Of Devendra Prasad Singh, R/O Vill- Fatehpur, P.O. & Distt-
Nalanda, Roll No.61170202
                                             5




  73. Manoj Kumar, S/O Ramesh Prasad, R/O Vill- Bajruhan, P.O. Vedwani Nagar, Distt-
  Bhojpur (Ara) Roll No.66200231
  74. Ravindra Kr.Singh, S/O Satyanarayan Singh, R/O Vill- Damodarpur, P.O. Amba, P.S.
  Shahkund, Distt- Bhagalpur, Roll No.87020287
  75. Pravin Kr.Yadav, S/O Basudev Prasad, R/O Vill- Shahpur, P.O. Panchrukhi, P.S.
  Shahkund, District- Bhagalpur, Roll No.87300079
  76. Abhimanyu Kr.Singh, S/O Manoj Pd.Singh, R/O Vill- Shahapur Barant, Post- Jalalpur,
  P.S. Patori, Distt- Samastipur, Roll No.80030274
  77. Abhishek Singh, S/O Triloki Nath Singh, R/O C/O Prabhunath Mishra, Arare Moad,
  Wsest In The Front Of Patel Residence, Gopalganj, Roll No.77050321
  78. Sanjeev Kumar, S/O Chandrama Singh, R/O Vill- Tandawa, P.O. Dewa, P.S. Kadirganj,
  District- Patna, Roll No.60420139
  79. Kumar Rohan, S/O Sri Uday Shankar Singh, R/O Vill- Anchacha, P.S. Daudbagar, Distt-
  Aurangabad, Roll No.64050589
   80. Piyoosh Kumar, S/O Shishir Kumar Pandey, Residence Of Vill- Maghra, P.O. Maghra,
  P.S. Deepnagar, Distt- Nalanda (Bihar), Roll No.61050452
  81. Nand Kishore Singh, S/O Chaudhary Singh, R/O Vill- Khalaspur (Gangapur) P.S.
  Sadokhar, P.S. Chanari, Distt- Rohtas, Roll No.69010113
  82. Kishor Kunal, S/O Basudeo Singh, R/O Vill- Jagdishpur Mathiya, P.O Shahar Telpa, P.S.
  Karpi, Distt- Arwal, Roll No.62070052
  83. Ravi Shankar Sharma, S/O Saryug Singh, R/O Vill+ Post - Birhidilt, Distt- Nalanda, Roll
  No.61180312
  84. Akhilesh Kumar Pathak, S/O Sri Binodanand Pathak, R/O Vill+P.O. Marwa, P.S. Bihpur,
  Distt- Bhagalpur, R.No.87280247
  85. Chandan Kumar, S/O Birendra Upadhyay, Vill- Sikariya, P.O.- Muksudpur, P.S. Tekari,
  Gaya (Bihar), Roll No.62140408
   86. Saurav Kumar, S/O Ramendra Kumar Singh, Vill- Matiyara, P.O. Kayamnagar, P.S.
  Koilwar, Bhojpur, Roll No.68180123                                       .......Respondents
                                                     -----------

For the Appellants: Mr. Ram Balak Mahto, Advocate General
Mr. J.P. Karn A.A.G. IX
Mr. Siddhartha Prasad, A.C. to AAG IX
For the Respondents: Mr. Rajendra Prasad Singh, Sr. Advocate
Mr. Rajeev Kumar Singh, Advocate

PRESENT

THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH

THE HON’BLE DR. JUSTICE RAVI RANJAN

O RDER

Shiva Kirti Singh, J. The State of Bihar as well as the Central
6

Selection Board (Constable Recruitment), Bihar and

some of their officials have preferred these three appeals

under Clause 10 of Letters Patent of this court to

challenge the judgement and order of the writ court dated

19th February, 2011 whereby CWJC Nos. 14170 of 2010,

503 of 2011 and 512 of 2011 have been disposed of

along with CWJC No. 14742 of 2010 and CWJC No.

504 of 2011.

2. Through the judgement and order under

appeal, the writ court has interfered with the final result

of selected candidates to a limited extent and has

directed the respondents to redraw the final result

separately on the basis of two Physical Evaluation Tests

(PET) held at two stages. The writ court noticed that

there was substantial compliance with all the statutory

provisions and instructions in holding the written

examination and calling the qualified candidates for

PET- 1, therefore, the result of all the successful

candidates on the basis of PET-1 must be published and

on that basis recommendations should be made for

appointment against remaining available vacancies of
7

different categories out of 5058 vacancies meant for Non

Home Guard category of candidates. The writ court has

further directed that for the 5052 vacancies meant for

Home Guard category of candidates which have

remained available after appointment of only 131

candidates of Home Guard category on the basis of PET-

1, should be filled up from the candidates of respective

categories available after PET-2, for which the left over

candidates of PET-1 as well as the left over vacancies of

PET-1 shall also be taken into account for making

appoint strictly as per respective category of the

candidates and their ranking in the merit list of written

test. The separate results have been directed to be drawn

and finally published within one month from the date of

the judgement and order.

3. The case of the appellants is that the writ

court should have held that lowering down of qualifying

marks for the written test was of no consequence because

after the result of written test was published on

18-6-2010 by applying cut off marks as per 1991

Personnel and Administrative Reforms Department’s
8

Circular, it was found that only 19616 candidates out of

3.65 lacs applicants have passed whereas out of 10,110

vacancies which were subject matter of advertisement

No. 2 of 2009, 5052 were meant for the Home Guard

category of candidates but only 389 applicants from this

category passed the written test and only 131 of them

qualified for the PET-1. According to learned counsel for

the appellants, only 5676 candidates including 131 from

the Home Guard category had cleared PET-1 and this

was not sufficient to fill up the advertised vacancies of

10,110 and, therefore, fresh guidelines were issued by

the State Government on 4-8-2010 to declare that

provisions in the Bihar Police Act, 2007 for calling

candidates for the Physical Evaluation Test, after holding

of the written examination, in the ratio of 1:5 was

mandatory and hence, the executive circulars of

Personnel Department laying down cut off marks for

various categories are not required to be followed in the

matter of recruitment to the post of Constables. The

guidelines clarified that the minimum eligibility marks

were, therefore, relaxed and in that light candidates in
9

each category (reserved category) be called in the ratio

of 1:5. The guidelines directed for revising the result of

the written examination simply on the basis of 1:5 ratio

of the vacancies vis-à-vis the candidates required to be

called for interview and to publish the result accordingly

on the basis of PET-1 and to hold PET-2 so as to publish

further final result within 30 days of the result published

on the basis of PET-1. The guidelines, thus, directed for

final results in two stages but with a stipulation that

ultimately one merit list will be prepared of all the

successful candidates for fixing their inter se seniority

though they may have succeeded in two different stages.

The guidelines further provided that 50% of the

vacancies should be filled up with candidates belonging

to the category of Home Guards but if such posts

remained vacant due to non availability of suitable

candidates then the remaining vacancies of Home

Guard category should be made available to open

category. It was highlighted in the guidelines that for

filling up the vacancies of Home Guard category

candidates from each reserved category should also be
10

called for in the proportion of 1: 5 for the Physical

Evaluation Test.

4. The cause of action for filing the writ

petitions arose mainly because the Selection Board while

publishing the result based on PET-1 on 18-8-2010 went

into issues relating to reservation and published the

results of only 2228 candidates and results of 3317

candidates were put on hold. Out of 2228 candidates

2095 belonged to general category, 131 to Home Guard

category and 2 to Gorkha category. The last candidate

selected for appointment had obtained 120 marks in the

written test. The grievance raised on behalf of the writ

petitioners was that the result of 3317 candidates was

wrongly put on hold only to appease the Home Guard

candidates and for diluting the standard set for entering

into category of general candidates; the concept of cut

off marks was wrongly given a go by after the results on

the basis of written test had already been published and

Physical Evaluation Test was also over. According to

writ petitioners the effect of subsequent relaxation is two

fold, firstly persons having secured less than zero marks
11

( on account of negative marking) have been selected for

final appointment in preference to those who had

obtained much higher roughly 120 marks in the written

test and secondly, such candidates who had secured

absurdly low marks (even less than zero) also became

eligible for being included in the general category of

Home Guard candidates and, therefore, candidates of

general category having much higher marks have been

deprived from being considered for appointment against

vacancies of general category candidates which had to

revert to the open category candidates as per declared

norms and government guidelines.

5. Learned writ court has considered all the

relevant materials in coming to a conclusion that there

was substantial compliance with the provisions of calling

for candidates for Physical Evaluation Test in the ratio of

1:5 and such ratio could be maintained, as far as

possible, only after the result of the written examination

on the basis of minimum qualifying marks or cut off

marks as per prevailing policy decision. Hence, the writ

court was of the view that the subsequent relaxation of
12

marks may be condoned but such selection on the basis

of PET-2 cannot be a selection on the basis of marks and,

therefore, the successful candidates of PET-1 whose

results were withheld had to be treated as successful

candidates and the candidates selected after ignoring cut

off marks on the basis of PET-2 could not be treated as

candidates selected on the basis of merit so as to entitle

them to be counted as general category candidates. Such

candidates, according to writ court, cannot be treated as

general candidates because they have been made to

qualify without merits.

6. The facts are not in much dispute and the

basic issues are whether State Government could relax

minimum eligibility marks by holding that it was

mandatory to call candidates for Physical Evaluation

Test in the ratio of 1:5 regardless of their performance in

the written examination. The view of the writ court

appears to be correct that the newly enacted selection

process by holding written examination will be rendered

nugatory and meaningless if there will be no cut off

marks. There can be no dispute that doing away with cut
13

off marks completely will not only be counter productive

to the purpose of efficient public recruitments on the

basis of merit but shall also make inroad into well

understood concept of reservation which is permitted

generally up to 50% of the available vacancies in favour

of reserved category of candidates and the remaining

vacancies, loosely described as general category

vacancies, are to be filled up strictly on the basis of

merit. If a candidate of reserved category finds a place in

the category of general candidates on account of his

merit, he is treated as general candidate and not as a

reserved category candidate. If merit is to be ignored

totally so as to appoint candidates who have obtained

even negative marks, that is, zero or less, it shall have

serious adverse impact on the entire concept of leaving

50% vacancies as general and open to be filled up on the

basis of merit alone. This shall be in contradiction and

derogation of well established concept of permitting

reservation generally up to 50% of the vacancies only. It

will also adversely affect the necessity of balancing merit

and competence in public services with required
14

concession for filling up only the reserved category of

posts by lowering down the minimum eligibility marks

for such categories alone to a reasonable extent.

7. It may be relevant to notice some relevant

judgements on the issue of fixing of cut off marks. In the

case of State of Punjab V. Manjit Singh, (2003) 11 SCC

559, while considering validity of short listing of

scheduled caste candidates by a written scrutiny test, the

Apex Court in paragraphs 8, 9 and 10 held that the best

candidates in different categories should be permitted to

come in the zone of consideration depending upon the

number of vacancies but the State Government may

decide as a matter of policy the measures, if necessary, to

be provided regarding reservations vis-à-vis maintenance

of efficiency in services. In the case of Pitta Naveen

Kumar & Ors. Vs. Raja Narasaiah Zangiti & Ors

(2006) 10 SCC 261, the issue was whether eligibility

conditions in relation to a recruitment process could be

relaxed by subsequent issuance of administrative

instructions. The Court held it could not be done and

reduction of cut off marks was held to be arbitrary.
15

8. The requirement of calling candidates in the

ratio of 1:5 for Physical Evaluation Test must be held to

be directory and this ratio should be adhered to, to the

extent possible, depending upon the number of

candidates who qualified in the written examination. If a

contrary view is taken, then holding of written

examination, though required by the statutory rules, may

become meaningless and redundant in case the number

of candidates is less than the number of vacancies in any

particular class or category. Further, such requirement

can not be followed strictly if the number of candidates

in any category is less than five times the number of

vacancies for such category. Hence, the view of the writ

court is correct that such a requirement needs only

substantial compliance.

9. It is also well established in law that once a

selection process commences, it should be conducted and

concluded as per rules and guidelines then prevailing and

subsequent amendment in the rules or guidelines should

normally govern subsequent recruitment process initiated
16

after amendment of the rules or guidelines. In the present

case, the writ court on account of some consideration has

chosen not to interfere with the decision of the appellants

to follow the amended guidelines although they were

issued after the publication of the result of the written

examination and after the PET-1 was held. There is no

appeal before us challenging this part of the judgement

and order otherwise, in exercise of appellate jurisdiction

we would have been required to consider whether to

allow or not the operation of subsequent guidelines in

respect of present recruitment process

10. In the facts of the case, in our view the

prayer made in these appeals seeking to amalgamate the

results of PET-1 and PET-2 and to implement

reservation rules in respect of such combined result on

the basis of no cut off marks, has no merit and hence, we

are not inclined to interfere with the judgement and order

under appeal. All the appeals are, accordingly,

dismissed.

17

11. There shall be no order as to costs.

(Shiva Kirti Singh, J.)

I agree.

Dr. Ravi Ranjan, J.

(Dr. Ravi Ranjan, J.)
Patna High Court
The 13th July,
2011
NAFR/BKS

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