TaxTMI 
TaxTMI 
2022 (8) TMI 1447
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....ugned dated 23^rd 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 9^th 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 7^th 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 obt....
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....iminary 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 10^th September, 2018^3. 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 20^th December, 2018 h....
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....marks of Paper-I 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 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....
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....oncerned, 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 rem....
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.... 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 conclusion and the interpretation coming forward would be that Paper-I 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 furt....
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....d 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 ....
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....ain revised on 11^th August, 2017 followed by 6^th August, 2018 and finally, the second revised result of preliminary examination was published on 6th August, 2018 declaring 34,634 candidates successful for appearing in the mains examination. 33. One of the candidates who was not satisfied by the orders passed by the High Court came to this Court in Civil Appeal no. 9217 of 2018 and this Court by Order dated 10^th September, 2018 disposed of the same with the observation that there is an ambiguity in the conditions of advertisement and minimum qualifying marks of 40% are for the aggregate and not for each subject. 34. This was not rested at this stage. The High Court, in the case of Joy Guria and others(supra), which relates to Preliminary Examination, again examined the result of the preliminary examination and by judgment dated 20^th December, 2018 held that such of the persons who did not secure minimum qualifying marks in both the papers of preliminary examination are not qualified to participate in the main examination as Clause 13 of the advertisement applies to each subject separately. 35. After a long battle, the Commission proceeded further and conducted the main ....
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....ed 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. 39. So far as the two questions which have been answered by the High Court in reference to whether the marks obtained in Paper-I would be added in total marks or whether the merit list is to be prepared based on the total marks at the written examination or minimum qualifying marks in each of the subject papers of written examination are concerned, after examining clause 12 and 13 of the advertisement in particular, read with Rule 16 of Rules 1951, we are of the view that there is certainly an ambiguity in the advertisement itself. 40. If we examine clause 12(a) in reference to the preliminary examination, it may indicate that according to vacancies, 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 i....
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....as clearly admitted by the respondents diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6, 1968 extracted at pages 99100 of the paper book in the counter-affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined". (emphasis supplied) 43. 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. 44. In the given situation, when one possible view has been acted upon by the Commission and pursuant to....
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....ement. 48. Consequently, the appeals deserve to succeed and accordingly allowed. The impugned judgment of the High Court dated 23^rd February, 2022 is hereby quashed and set aside. No costs. 49. Pending application(s), if any, shall stand disposed of. TRANSFER PETITION (C) NO(S).1100 OF 2022 50. Having heard learned counsel for the petitioner, we find no reason to entertain the transfer petition and the same is accordingly dismissed. 51. Pending application(s), if any, shall stand disposed of. Footnotes------- 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 (....
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....r 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 institutional-cum 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 interse 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 ....
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....tions 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 (B) 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, ....