IMPORTANT POINT
Selection and appointment to post of City Manager – 32% in written examination would make a candidate eligible and qualified to be placed in consideration zone – However, merit list would be prepared after taking into consideration marks obtained on account of experience – Required minimum qualifying marks are concerned with marks obtained in written test only.

JUDGMENT :

Vikram Nath, J.

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[Rules, 2014], 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.

(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%

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 experie