IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.20611 of 2010 ==================================================== Suresh Kumar Mishra, Son of Sri Sheo Nandan Mishra, Resident of Ramnagri, Sector-2, Ashiana Nagar, Police Station- Rajiv Nagar, District- Patna. …. …. Petitioner Versus 1. The State of Bihar 2. The Principal Secretary, General Administration Department, Bihar, Patna. 3. The Principal Secretary, Home (Police) Department, Bihar, Patna. 4. The Chairman, Bihar Public Service Commission, Bihar, Patna. 5. The Secretary, Bihar Public Service Commission, Bihar, Patna. 6. The Deputy Secretary, Bihar Public Service Commission, Bihar, Patna. 7. The Examination Controller cum Additional Secretary, Bihar Public Service Commission, Bihar, Patna. …. …. Respondents ==================================================== Appearance : For the Petitioner : Mr. Bindhyachal Singh, Advocate For the Respondent State: Mr. Lalit Kishore, AAG-1 with Mr. Vikash Kumar, A.C. to AAG-1 For the Respondent BPSC : Mr. K.B.Nath, Advocate with Mr. S.C. Jha, Advocate Mr. Durga Narayan, Advocate ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 6. 22.4.2011. This petition under Article 226 of the Constitution is filed by one Suresh Kumar Mishra, an applicant for selection and appointment to the post of Assistant Public Prosecutor. In answer to the advertisement published on 28th March 2009 by the Bihar Public Service Commission (hereinafter referred to as „the Commission‟), the petitioner has applied for selection and appointment as Assistant Public Prosecutor. The - 2 - recruitment is still in process. He has filed this petition to challenge the constitutional validity of the government Notification dated 6th August 2010 issued under proviso to Article 309 to the Constitution. Under the impugned Notification Rule 36 of the Bihar Prosecution Manual, 2003 (hereinafter referred to as “the Manual”) has been amended to empower the Commission to hold a preliminary examination in case the number of the applicants compared to the post advertised is disproportionately high. The petitioner also challenges the essential instruction issued by the Commission on 23rd October 2010 intimating to the applicants the modification in the syllabus for the examination for recruitment of the Assistant Public Prosecutors. Learned advocate Mr. Bindhyachal Singh has appeared for the petitioner. The challenge is two fold. He has submitted that once the recruitment process has commenced the State Government has no power to amend the recruitment rules so as to affect the recruitment process already commenced. As to the challenge to the holding of preliminary examination, we see no merit. The advertisement itself did mention that in case of too large number of applicants, a preliminary examination would be held. Otherwise also it is settled principle that a recruitment agency like Public Service Commission does have a right to hold an elimination test/preliminary test to shortlist the eligible applicants. In respect of the syllabus, the learned Additional Advocate General Mr. Lalit Kishore has - 3 - submitted that the State Government has conceded that the Commission may conduct the competitive examination according to the syllabus prescribed prior to the disputed amendment to Rule 36 of the Manual. In view of the above concession, we are of the opinion that the ends of justice should be met if the applicants are allowed to take the examination in accordance with the syllabus prevalent at the time of the advertisement. In the above circumstances, the petition is allowed. Intimation Annexure-3 to the petition is set aside. The Bihar Public Service Commission will hold the competitive examination for recruitment of Assistant Public Prosecutors pursuant to the advertisement published on 24th March 2009 in accordance with the then prevalent syllabus. The petition stands disposed of in the above terms. Pawan/- (R.M. Doshit, CJ) (Jyoti Saran, J)