The main legal point established is the authority of the Commission to conduct the preliminary examination and the discretion to restrict the number of successful candidates for the competitive examination.

1. This group of writ petitions under Article 226 of the Constitution are filed by the learned Advocates to challenge the result of the preliminary test conducted by the Bihar Public Service Commission for recruitment to 217 vacancies in the Sub-ordinate Judiciary of the State of Bihar.

2. The main challenge in these writ petitions is four-fold. First; the Bihar Public Service Commission (hereinafter referred to as the Commission) has no authority to conduct preliminary examination prior to the competitive examination contemplated under the Bihar Judicial Service (Recruitment) Rules, 1955. Second; the disputed preliminary examination was conducted on the basis of the Bihar Civil Service (Judicial Branch) (Recruitment) (Amendment) Rules, 2008 ignoring the sub- sequent amendment by Amendment Rules of 2009. Prior to the amendment by the Amendment Rules of 2009 the reservation was confined to the Scheduled Caste and Scheduled Tribe candidates; whereas under the Amendment Rules of 2009 the benefit of reservation has been extended to Backward Class and the Extremely Backward Class candidates also. Thus, by not following the Amendment Rules of 2009, the candidates belonging to the Backward Class and the Extremely Backward Class have been deprived of the benefit of reservation. In other words, they are compelled to compete with the other candidates in General Category. Third; the dispute is in respect of the omission of 25 questions from consideration. According to the petitioners some of those 25 questions did not have the correct option but the others had the correct option. The candidates who have attempted such questions and answered correctly stand to disadvantage on account of the omission of those questions from consideration. Fourth; the petitioners have challenged the decision of the Commission to allow only 10 per cent of the total examinees to take the competitive examination contrary to the Supreme Court direction to allow the candidates to take competitive examination in the proportion of 1:10 i.e. for every single vacancy at least 10 candidates should be allowed to take the competitive examination.

3. Some of the Lawyers have referred to the question papers and the alternative answers. They have tried to demonstrate that most of the questions omitted from consideration had the correct answer.

4. The petitions are contested by the Commission. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. He has submitted that the matter of recruitment to the Sub-ordinate Judicial Service is seized by the Honble Supreme Court. The matter is yet pending before the Honble Supreme Court. He has submitted that the Honble Supreme Court has, in its order dated 3rd December, 2010, taken note of the advertisement dated 9th August, 2008 and the Rules then existing i.e. as they stood prior to amendment by the Amendment Rules of 2009. In the circumstances, the Honble Supreme Court observed;

".....In light of the said order there was no occasion for the State or for the Public Service Commission to hold any doubt on the question of applicability of rules for filling up the existing 217 vacancies. We have been informed that preliminary examination for said recruitments had been held on 31st December, 2009, but the results were not announced because of the aforesaid controversy. We direct that in so far as these 217 vacancies are concerned, the process of recruitment already initiated shall be expedited and completed, preferably within six months. This exercise shall be completed not- withstanding any interim orders by any Court."

5. He has submitted that in view of the aforesaid direction issued by the Honble Supreme Court the Commission was required to proceed in accordance with the Rules as they stood prior to the Amendment Rules of 2009. He has submitted that by Rule 2 of the Amendment Rules of 2008, the Commission is expressly empowered to hold preliminary examination and to allow only 10% of the to