Rules 4 and 5 of the Bihar Civil Service (Executive Branch) and the Bihar Junior Civil Service (Recruitment) Rules, 1951, and Condition No.5 of the advertisement issued for the examination were directory and not mandatory.

B. L. Yadav, J.

1. Whether the provisions of Rules 4 and 5 of the bihar Civil Service (Executive Branch)and the Bihar Junior Civil Service (Recruitment) Rules, 1951 (for short the Rules) are mandatory or directory and whether the Bihar Public Service commission (for short the Commission) could have made the advertisement only after indicating the number of vacancies in each services to be filled up, are the short but significant questions for our determination in the instant writ-petition filed by Subodh kumar and 40 others (who have appeared at the preliminary test conducted by the Commission) against the commission, Bailey Road, Patna, including the members of the Commission and the State of Bihar (for short the State) with a prayer that a writ in the nature of certiorari or any appropriate writ the issued quashing the result of the preliminary test of the 40th Combined Competitive Examination conducted by the Commission for appointment to the various posts and services in the State, and further for declaration that the preliminary test held pursuant to the advertisement dated 23rd April, 1995 is null and void and for issuance of a writ of mandamus commanding the respondents-Commission to hold the said preliminary test afresh and to allow the petitioners to appear at the said examination.

2. The factual matrix of the case lies in a narrow compass. The Commission issued advertisement dated 23rd April, 1995, published in daily newspaper "aaj", for holding 40th combined Competitive Examination (Preliminary) for appointment to the various posts and services in the State including the Bihar Administrative services and Bihar Finance Services etc. as stated in para-4 of the petition (vide annexure-1 ). This preliminary examination was of qualifying nature and the successful candidates were to appear again at the main final examination. The marks obtained in the preliminary examination were not to be added in the final examination. It was the examination to short list or to eliminate the unmanageable number of candidates, so as to permit such candidates to appear at the final examination, who obtained higher marks and were covered within 10 times of the actual number of vacancies, or 1/10th of the number of the candidates appeared at the preliminary test. According to the petitioners the number of seats was not declared in the advertisement. The actual grievance of the petitioners is that without communicating the actual number of vacancies to be filled up as required by rules 4 and 5 of the Rules and Condition No.5 of the advertisement (Annexure-1) the declaration of the result of the preliminary test was arbitrary and against the specific provision of law and the commission has failed in its duty enshrined under Article 320 of the Constitution.

3. The counter-affidavit has been filed by the Commission and also by the State. In para-19 of the Additional counter affidavit filed on behalf of the commission and respondents 2 and 3 it has been stated that the number of vacancies for 40th Combined Competitive Examination was 164 and was communicated on different dates to the Commission but before the publication of result of the preliminary test. The various communications by the state have been filed as Annexures R-1/g and R-1/c. We wanted to know the original order of communication of. the vacancies before the publication of the preliminary test. We accordingly directed on 7.12.1995 Shri Ganga prasad Roy, the learned Additional advocate-General No. III, to obtain the same and produce it on 8.12.1995 before us. Mr. Roy was sincere enough to furnish the orginal communication in respect of actual number of vacancies to the Commission. We have verified the dates on which the communication was made to the Commission by the State and the same was found to be correct after having compared from the original. In substance the case of the Commission is that since before the final publication of the result of the preliminary test, the va