SUPREME COURT REJECTS APPEAL OF THE BSSC CHALLENGING THE HIGH COURT’S ORDER OF APPOINTEMENT OF CANDIDATE WITH MINIMUM QUALIFYING MARKS

A two-Judge Bench of the Supreme Court comprising of Justice Vikram Nath and Justice Prasanna Bhalachandra Varale passed a Judgment dated 16.07.2024 in the matter of Bihar Staff Selection Commission (BSSC) & Anr. vs. Himal Kumari & Anr. etc., Special Leave Petition (SLP) (Civil) Nos.9656-9657 of 2023 and observed that the merit list is prepared by considering both the written test scores and experience of the candidates. It was decided those who meet the minimum qualifying marks in the written examination are eligible for inclusion in the merit list, but their final ranking would depend on the combined scores.

FACTS:

1)  That the Appeal mentioned above, was filed before the Apex Court by the, Bihar Staff Selection Commission & Anr (Appellants) against one Himal Kumari (Respondent No.1) & Anr. etc (Respondents), who challenged the validity of the Judgment dated 20.12.2022 (corrected on 22.02.2023), passed by the Division Bench of the Patna High Court (High Court) in Letters Patent Appeals (L.P.A.) Nos. 412 and 109 of 2021. These Appeals arose from a Civil Writ Jurisdiction Case (C.W.J.C.) No. 7051/2020, before the Single Bench of the High Court, the Division Bench of the High Court dismissed both Appeals and upheld the Single Judge’s Order dated 15.10.2020.

2) The Appellants were involved in the case against Respondent No.1, the case concerns the selection and appointment for the post of City Manager, under the Urban Development and Housing Department, Government of Bihar. The recruitment process follows, the Bihar City Manager Cadre (Appointment and Service Conditions) Rules, 2014, which detail the procedures for recruitment, including a written examination worth 70 marks and a consideration of experience worth up to 30 marks.

3) On 15.11.2016, the Commission issued an advertisement, for 152 City Manager posts. The selection process required candidates to pass a written examination and possess relevant work experience. The advertisement set, the minimum qualifying marks for the written test at 40% for General Class, 36.5% for Backward Class, 34% for Most Backward Class, and 32% for SC/ST and female candidates.

4) One, Himal Kumari (Respondent No-1), who had no prior work experience, scored 22.575 out of 70 in the written exam. The commission declared her unsuccessful because she did not meet the minimum qualifying marks of 32% when her written test score was combined with her experience score, which was zero. Further, Respondent No- 1 filed a Writ Petition, arguing that the 32% qualifying marks should apply only to the written test and not the combined total of 100 marks.

5) The Single Judge ruled in favour of Respondent No. 1, stating that the qualifying marks applied only to the written test. The Bihar Staff Selection Commission and other affected candidates appealed this decision.

6) However, the Division Bench of the High Court dismissed the Appeals, supporting the Single Judge’s interpretation.

 

HIGH COURT OBSERVATIONS:

 

SINGLE BENCH:

The Single Judge ruled in favour of Respondent No.1, stating that the 32% qualifying marks mentioned in the advertisement applied exclusively to the written examination out of 70 marks and not to the combined total of 100 marks, which included 30 marks for work experience. Further, the Judge decided that once a Candidate achieved the qualifying marks in the written test, they should be considered for the merit list preparation without being excluded based on the combined score.

 

DIVISION BENCH:

Aggrieved by the decision of the Single Bench, the Appellants filed Letters Patent Appeals (L.P.A.) Nos. 412 and 109 of 2021. Whereby, the Division Bench of the Patna High Court upheld the Single Judge’s decision.

Further, the Bench noted that the recruitment rules, specifically Rules 5 and 11 of the Bihar City Manager Cadre (Appointment and Service Conditions) Rules, 2014[i], did not incorporate the executive order of 2007 as part of the selection criteria. The Court found that the executive order, which predated the 2014 Rules, could not override or add to the procedures specified in the Rules regarding the selection and appointment process.

SUPREME COURT:

Aggrieved by the High Court Order dated 20-12-2022, the Appellants filed Special Leave Petition No.9656-9657 of 2023 before the Supreme Court. The Apex Court vide Order dated 16.07.2024 held as follows:

  ISSUES:

Whether the minimum qualifying mark of 32% for the written examination in the recruitment process for the post of City Manager under the Bihar City Manager Cadre (Appointment and Service Conditions) Rules, 2014, applied exclusively to the written test score out of 70 marks or to the combined total of 100 marks (including experience).

OBSERVATION:

The Supreme Court, in its observations, emphasized the importance of adhering to the statutory rules over executive orders. The Court upheld the Patna High Court’s decision by affirming that the Bihar City Manager Cadre (Appointment and Service Conditions) Rules, 2014, clearly stipulated the qualifying marks criteria. According to the 2014 Rules, the minimum qualifying marks for the written examination for the post of City Manager was 32% of 70 marks, specifically for women, not 32% of the total 100 marks, which included additional marks for work experience.

The Bench rejected the Appellants’ reliance on the executive order dated 16.07.2007, which proposed a uniform qualifying mark for various competitive examinations, including 32% for SC/ST and women candidates. The Apex Court noted that the executive order could not override the statutory rules framed under Article 309 of the Constitution of India, 1950 (Recruitment and conditions of service of persons serving the Union or a State). The Rules of 2014 were enacted later and were specific to the recruitment process in question, making the earlier executive order inapplicable.

Furthermore, the Supreme Court referenced the case of Employees’ State Insurance Corporation vs. Union of India & Ors., reiterating the principle that statutory regulations prevail over executive decisions. The Court emphasized that the 2014 Rules did not mention any minimum qualifying marks required out of the total 100 marks, thereby supporting the respondent’s contention that her 22.5 marks out of 70 (equivalent to 32.14%) met the minimum qualifying criteria.

CONCLUSION:

Accordingly, the Supreme Court observed that the Appellant’s interpretation of the qualifying marks was incorrect and that the Respondents should not have been denied a place on the merit list. Therefore, the Appeals were dismissed, and the High Court’s Judgment was upheld, reinforcing the primacy of statutory rules over executive orders in determining recruitment criteria.

 

 

Sakshi Raghuvanshi

Senior Legal Associate

The Indian Lawyer

[i] 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.

(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.”