Candidate scoring minimum qualifying marks with no work experience will still be eligible to be appointed as City Manager under UDHD: Supreme Court

Supreme Court: In an appeal challenging the validity of the judgment passed by the Patna High Court, whereby the Division Bench of the Court dismissed both the appeals and refused to interfere with the judgment and passed by the Single Judge, pertaining to the issue of the selection and appointment to the post of City Manager under the Urban Development and Housing Department, Government of Bihar, the division bench of Vikram Nath and Prasanna Bhalachandra Varale, JJ. , while upholding the impugned judgment has held that as respondent 1 received 32.14 per cent, above the minimum qualifying marks of 32 per cent, as per the advertisement. Therefore, Bihar Staff Selecton Commision (‘BSSC’) were not right by denying her a place on the merit list.

The post of City Manager 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.

BSSC issued an advertisement dated 15-11-2016 under the Bihar City Manager Cadre (Appointment and Service Conditions) Rules, 2014 (‘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. Under the said advertisement, respondent 1, who had no prior work experience, participated in the written examination for the said post. She achieved 22.575 marks out of 70 in the written examination. BSSC 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 as she had no prior work experience, she achieved 0 marks out of 30 for the work experience. In total, she has achieved 22.5 marks out of 100, below the minimum requirement of 32%. Meanwhile, respondent 1 contended 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%.

Thereafter, the respondent filed a writ petition, the Single Judge directed BSSC to consider the Petitioner’s case and appoint as City Manager based on qualifying marks in the written test and prepare merit list. Aggrieved, BSSC filed an appeal. The Division Bench upheld the Single Judge order. Thus, the present appeal has been filed.

Analysis and Decision:

The Court said that the impugned judgment is justified and correct. The judgment warrants no interference. The Division Bench has rightly confirmed the judgment passed by the Single Judge.

After taking note of the Rules 5 and 11 of the Rules, 2014, with the advertisement and giving it a pragmatic and harmonious construction, the Court said that 32% in the written examination would make a candidate eligible and qualified to be placed in the consideration zone.

However, the Court said that the merit list would be prepared after taking into consideration the marks obtained on account of experience. Thus, a candidate similar to respondent 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

The Court clarified that 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 for the final preparation of the merit list. Nowhere in such rules there is mention of any minimum qualifying marks required out of a total of 100 marks. The conduct of BSSC by not including respondent 1 in the merit list is not in consonance with the said advertisement.

The Court said the Executive Order of 2007 is not clarificatory or explanatory with respect to the Rules of 2014. Further, the Division Bench has rightly discarded the applicability of the Executive Order.

After considering the decision in Employees’ State Insurance Corporation v. Union of India, (2022) 11 SCC 392, wherein it was held that the executive decision will prevail or the statutory regulations. The Court said that the High Court also giving primacy to the Rules 2014 as compared to an earlier executive decision.