BIHAR STAFF SELECTION COMMISSION & ANR.versusHIMAL KUMARI & ANR. ETC.

                 [2024] 7 S.C.R. 970 : 2024 INSC 531

             Bihar Staff Selection Commission & Anr.
                                 v.
                     Himal Kumari & Anr. Etc.
                  (Civil Appeal Nos. 7815-7816 of 2024)
                                16 July 2024
    [Vikram Nath* and Prasanna Bhalachandra Varale, JJ.]

                           Issue for Consideration
       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 Conditions) Rules,
       2014, which were framed under Article 309 of the Constitution of
       India.

                                 Headnotes†
       Bihar City Manager Cadre (Appointment and Service
       Conditions) Rules, 2014 – Rule 5 and Rule 11 – Appellants
       issued an advertisement for appointment to posts of City
       Managers in the State of Bihar – Respondent no. 1 achieved
       22.575 marks out of 70 in the written examination – Appellants
       declared her unsuccessful as she did not obtain the minimum
       qualifying marks of 32% as she had secured 22.5 marks in
       the written test and 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% – Aggrieved, Respondent no.1 filed writ
       petition, which was allowed by the Single Judge of the High
       Court – The Division Bench upheld the decision of the Single
       Judge of the High Court – Correctness:
       Held: 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

* Author
[2024] 7 S.C.R.                                                           971

 Bihar Staff Selection Commission & Anr. v. Himal Kumari & Anr. Etc.


     appointment having scored 32% marks (22.5 marks out of 70) in
     the written examination even though having no experience – The
     required minimum qualifying marks are concerned with marks
     obtained in the written test 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 – 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. [Paras 16, 17, 21]

                             Case Law Cited
     Employees’ State Insurance Corporation v. Union of India & Ors.
     [2022] 1 SCR 373 : (2022) 11 SCC 392 – referred to.

                                List of Acts
     Bihar City Manager Cadre (Appointment and Service Conditions)
     Rules, 2014; Constitution of India.

                             List of Keywords
     Rule 5 and Rule 11 of Bihar City Manager Cadre (Appointment and
     Service Conditions) Rules, 2014; Article 309 of the Constitution of
     India; Pragmatic and harmonious construction; Minimum qualifying
     marks; Prior work experience.

                            Case Arising From

     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7815-7816 of
     2024
     From the Judgment and Order dated 20.12.2022 of the High Court of
     Judicature at Patna in LPA Nos. 412 and 109 of 2021
                         Appearances for Parties
     Vijay Hansaria, Sr. Adv., Arun K. Sinha, Rakesh Singh, Sumit Sinha,
     Advs. for the Appellants.
     Mrs. Anjana Prakash, Sr. Adv., Anuj Prakash, Namit Saxena, Niraj
     Dubey, Pradum Kumar, Ms. Rachitta Rai, Advs. for the Respondents.
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                   Judgment / Order of the Supreme Court

                                  Judgment
       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 and order dated 15.10.2020 passed
       by the Single 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 Conditions) Rules, 2014,1 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 the
             Department.



1    Rules, 2014
[2024] 7 S.C.R.                                                            973

 Bihar Staff Selection Commission & Anr. v. Himal Kumari & Anr. Etc.


           (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 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%
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            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 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 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
[2024] 7 S.C.R.                                                           975

 Bihar Staff Selection Commission & Anr. v. Himal Kumari & Anr. Etc.


           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 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%
           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:
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         “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
         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.
[2024] 7 S.C.R.                                                     977

 Bihar Staff Selection Commission & Anr. v. Himal Kumari & Anr. Etc.


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 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 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.
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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 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 Insurance
    Corporation vs. Union of India & Ors.,2 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 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.

       Result of the case: Appeals dismissed.



       †
           Headnotes prepared by: Ankit Gyan




2   [2022] 1 SCR 373 : (2022) 11 SCC 392