IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.06.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition Nos.36903 and 36904 of 2004 P. Ajeetha .. Petitioner in W.P.No.36903 of 2004 K. Muthulakshmi .. Petitioner in W.P. No.36904 of 2004 v. 1. The Director General of Police, Central Reserve Police Force, Lodhi Complex, New Delhi. 2. The Inspector General of Police, Southern Sector, Central Reserve Police Force, Hyderabad. 3. The Deputy Inspector of Police, GC, Central Reserve Police Force, Avadi, Chennai. ... Respondents in both W.P.s Petition are filed under Article 226 of the Constitution of India praying for the issuance of writs of Mandamus directing the respondents to issue selection order to the petitioner on the basis of merit seniority in the waiting list for the post of Constable/G.D. In Central Reserve Police Force as per the result published on 14.09.2004 in "Dinamani" News Paper (Chennai Edition). For petitioners : Mr. R. Margabandhu For respondent : Mr. G.Sankaran, SCGC COMMON ORDER The petitioners in both the writ petitions have sought for a Writ of Mandamus directing the respondents to issue selection orders to the petitioners on the basis of their merit/seniority in the waiting list for the above said post, as per the result published on 14.9.2004 in Dinamani News paper (Chennai Edition) and for further orders. As common question of facts and law are involved in both the writ petitions, they are taken up together and disposed of by this common order. 2. Pursuant to the advertisement, for recruitment to the post of constable/GT for Central Reserved Police, 2003-2004, both the petitioners applied for the post. The petitioner in W.P.No.36903, P.Ageetha was issued hall ticket No. 1 and belongs to OBC category. The petitioner in W.P.No.36904/2004 K.Muthulakshmi was issued hall ticket No.15544 and she belongs to MBC category. Written examination was held on 11.1.2004. Both the petitioners have passed written test, medical test held on 12.1.2004 and participated in the oral test conducted on 13.1.2004. 3. The petitioners have submitted that 18 posts were reserved for women. The results of selection was announced in Dinamani News paper on 14.9.2004. Fifteen persons were given selection orders. 18 candidates were placed in the waiting list. The petitioner in W.P.No.36903 of 2004 was placed in the second position, out of 18 waiting list candidates in the general category. Likewise, the petitioner in W.P.No.36904 was placed in the 3rd position. Since there were 18 vacancies, out of which only 15 were filled up, the petitioners ought to have been considered. Three posts were referred to OBC Ex-servicemen category. Totally, 16 seats were announced to be filled up by women candidates. At the time of filing the writ petitions, the petitioners were not aware of the category wise selection. Later on, they came to know that only one candidate has been selected as against the 8 posts reserved for general ex-serviceman category and remaining 7 posts were not filled up. As the petitioners are in higher position in the waiting list, they should have been accommodated, but they are not aware the reasons for not being selected to the posts. 4. The petitioners have further submitted that from the counter affidavit, they came to know that only one post was reserved for schedule Tribe category. Under Scheduled Caste category, as against 4 posts advertised, seven candidates have been selected, exceeding the quota reserved for them and therefore three persons belonging to schedule caste category have to be removed from the selection list. The lone post reserved for schedule tribe candidate has not been filled up. The petitioners have further submitted that only three posts were advertised for candidates belonging to OBC category. But against the said reservation, 11 candidates have been issued with selection orders. 5. The petitioners have further submitted that the respondents are attempting to fill up the remaining three vacancies. According to them, three candidates with Hall Ticket Nos.15524, 15535 and 15544 alone should be selected and no other candidate is eligible to be considered for selection. As the waiting list would lapse after three months, ie., on 14.12.2004, the respondents ought to have issued the selection orders to the petitioners. Since no orders were passed, on 19.12.2004, the petitioners have preferred these writ petitions for the relief as stated supra. In both the writ petitions, the petitioners have submitted that as they hold higher positions in the waiting list of candidates belonging to the general category, the respondents should not prefer any other candidates ignoring their names. 6. In the additional affidavits permitted to be filed by an order dated 4.7.2007 in W.P.M.P.No.21809 and 21810 of 2005, the petitioners have submitted that as per the advertisement made in Dinamani, dated 11.10.2003, annexed to the miscellaneous application, the respondents have notified sixteen posts for women for Tamil Nadu, out of which, eight posts were reserved for general and ex-service women category, four posts were reserved for Schedule Caste and ex-servicemen category, one post for Schedule Tribe Ex-Service men category and three posts for OBC Ex-service women category. Since eleven candidates were selected in the OBC category as against three vacancies, the selection of excess persons has to be cancelled. It is also the case of the petitioner that though the advertisement is only for 16 candidates, 19 persons have been appointed. 7. In the affidavit filed in support of the M.P.Nos.2164 and 2165 of 2007, the petitioners have submitted that in the call letter only 25 marks were allotted for physical test and 50 marks for written test. Nothing has been mentioned about the marks to be awarded in the oral test to the candidates. The marks earmarked for oral test was also not mentioned in the advertisement. According to them, physical test was conducted on 7.1.2004, written test on 9.1.2004, medical test on 11.1.2004 and the results were affixed in the notice board on 11.1.2004. The petitioner in W.P.No.36903 of 2004 was placed first in the list. Muthulakshmi, petitioner in W.P.No.36904 of 2004 was placed at 5th position and both of them were informed by the officer that they are selected and that selection cards would be sent to them. 8. Pursuant to the selection list signed by the officers on 6.2.2004, results were published on 14.9.2004. From the paper publication, it is evident that only one candidate was shown to have been selected out of 8 candidates in general list. The petitioners have alleged that the selection list itself has been prepared after the publication of the result on 14.9.2004. According to them, the selection list produced before this court is not the original selection list and does not contain the details relating to physical test, written test and marks awarded for oral test if any conducted. 9. The petitioners have further contended that J.Sudha, daughter of Jayaraman, belonging to OBC category and secured only 55 marks, she has been selected, whereas, G.Lakshmi, daughter of Gurusamy, belonging to the same category, though she has secured 56 marks has not been selected, and was kept in the waiting list of general category. Ajeetha, daughter of Padmakaran, who has secured 62 marks has been selected as the first candidate in the OBC category. Though oral interview was not conducted, the respondents have awarded 14 marks each to Rekha, daughter of Devarajan and Ajeetha, daughter of Padmakaran, a CRPF employee. Likewise Arthi, daughter of Muthu Chidambaram has been awarded 18 marks in the oral test so as to accommodate her, though she had secured only 19.5 marks in the written test. Ajeetha, the petitioner in W. P. No. 36903 of 2004, who had secured 20 marks in the written test was awarded only 9 marks in the oral test. Similarly, Ms.Muthulakshmi, the petitioner in W.P.No.36904 of 2004 has secured 17.5 marks in the written test, but was awarded only 12 marks in the oral test. 10. According to the petitioner, the whole selection is vitiated due to excess representation of candidates as against the number of posts reserved for OBC and schedule caste categories. The petitioners have prayed that the entire selection has to be set aside and in case, the Court is not inclined to quash the list, atleast the petitioners should be accommodated, in addition to the normal intake of CRPF constables as per the decision of the Supreme Court reported in AIR 1981 SC 487. 11. The third respondent in the counter affidavit has submitted that the Inspector General of Police, Southern Chennai CRPF, Hyderabad, the second respondent has issued a letter No.R-II-5/2004 Admin-3 (22) dated 15.9.2003 and released 16 vacancies for the post of constable/GD (Mahila) CRPF from candidates belonging to Tamil Nadu and Pondicherry. Out of 16 vacancies, 8 vacancies were allotted for general category, four for schedule caste category, three for OBC and one for schedule Tribe category. Accordingly, advertisement was made in all leading news papers and applications were invited from eligible female candidate belonging to Tamil Nadu and Pondicherry. The petitioners' applications were found to be in order and they were issued with call letters to appear before recruitment on 7.1.2004 at Nethaji Stadium, near police recruitment training centre, Vellore. They were allotted role numbers 15544 and 15535 respectively. Both the petitioners reported at Vellore and attended various tests. The recruitment process was completed on 12.1.2004. As per the Recruitment Board proceedings, petitioner Ms.Muthulakshmi secured 44.5 marks out of 100 marks and on the basis of the marks obtained, she was placed at serial No.45 in the merit list. Ajeetha, petitioner in W.P.No.36903 of 2004, secured 52 marks out of 100 marks and she was placed at serial No.19 in the order of merit. After completion of recruitment process at Vellore and Trichy a combined list belonging to state merit list, was prepared on the basis of merit and category wise. 86 female candidates qualified in the test were arranged. Merit list of all the selected waiting listed candidates were published in all leading news papers in Tamil Nadu. One vacancy meant for schedule caste category remained unfilled. 12. Due to non-availability of Schedule Tribe candidate, the remaining 15 female candidates were issued with orders of appointment as per the merit list and appointed as constables/GD in CRPF. Thereafter no order of appointment was issued for filling up any vacancy meant for female candidates from the wait listed candidates under the general category published in the news paper, in numerical serial only and not as per the merit seniority. Therefore the contention of the petitioner that they were placed at positions 2 and 3 in the merit list for general category is not correct. Roll Nos.15524, 15535 and 15544 are not at all in the higher order of merit list. Since the vacancies have already been filled up, the question of trying to fill up the remaining three vacancies does not arise. As per instructions, the merit list of the candidates who were qualified in all respects, but could not be appointed due to non-availability of the vacancies in respect of the categories was prepared. The list shall be maintained for three months from the date of empanelment and that it would lapse automatically on completion of three calendar months. The respondents have further categorically submitted that the total number of vacancies were only 16, including one post reserved for schedule tribe category, which remained unfilled, due to non-availability of a suitable schedule tribe candidate in the merit list. The number of posts notified as per advertisement made in news papers is 16 and not 18 as contended by the petitioners. 13. It is further submitted that the petitioner Muthulaskhmi who secured 44.5 marks was placed in the merit list at Serial No.45 and Ms.Ajeetha, petitioner in W.P.No.36903 of 2004, who secured 52 marks was placed at 19th position in the merit list respectively. Therefore the contention of Ms.Ajeetha that she was placed at 17th position in the over all merit list and at second position in the waiting list is not correct. 14. In the counter affidavit filed in July 2007, the respondents have further submitted that as per instructions contained in Government of India, Department of Personnel and Training, NO.3612/13/88, Establishment (SCT) dated 22.5.89, it is emphasised that SC/ST/OBC candidates who are in the merit list of general category on their own and who do not seek any relaxation, will be treated as general category and will not be adjusted against the reserved vacancies. The respondents have submitted that the above said instruction was strictly followed in the matter of selection of candidates for the post of constables/GD/CRPF and that the recruitment was done according to the Government of India instructions. They have also submitted that since the petitioners have not secured the required marks for selection, in their respective communitywise categories and since the vacancies have already been filled up with the selected candidates, they are not entitled to the relief sought for in the writ petitions and therefore prayed for dismissal of the writ petitions. Submissions advanced by the learned counsel are as follows: 15. Though the petitioners have sought for a writ of Mandamus directing the respondents to issue selection orders to the petitioners on the basis of their merit seniority in the waiting list for the post of constables in Central Reserve Police, Mr.R.Margabandhu, learned senior counsel for the petitioner advanced his argument virtually attacking the entire selection. According to him, the selection list dated 14.9.2004 published in Dinamani Newspaper has to set aside for the irregularities committed in the process of empanelling the candidates. He further submitted that while preparing the list of selected candidates for Vellore and Trichy circle, there are interpolations and variations which disclose malpractice in the selection. Referring to the various list enclosed in the typed set of papers from pages 28 to 41, he submitted that in the first list of candidates, the respondents have furnished only written marks and total marks secured by the candidates, and they have not given the physical test marks or the interview marks. In the second list at page 32, the respondents have not given the marks for six candidates at Sl.Nos.2,6,7,9,13 and 15. Marks secured by the candidates from Vellore Circle alone were given in the said list. In the third list, the respondents have not given any details relating to the marks secured by the candidates from Trichy circle and the marks secured by those candidates in the physical efficiency test and in the interview were not given. Referring to the manner of preparation of merit list of the selected candidates, he submitted that when the above said irregularities were pointed out, the respondents in order to justify the selection have manipulated the records and subsequently awarded marks by filling up the relevant columns. 16. Referring to the enclosure at page 48 of the typed set of papers, learned counsel for the petitioner submitted that S.Sandhya, Sl.No.10 in the selection list dated 14.9.2004 has been wrongly selected, though she has secured only 54 marks in the selection. He further alleged that there is a variation in the marks awarded to her and it has been increased to 62, so as to include her name in the list of selected candidates. He further submitted that when the candidates, viz., Ajeetha, Juspin Mini and Sudha serial Nos.5,11 and 12 in the selection list, dated 14.9.2004 were already selected under the OBC category, in order to favour S.Sandhiya, extra marks seemed to have been awarded by the respondents and she has been accommodated in the general category. Referring to 5th list of candidates at page 42 of the typed set of papers, learned counsel for the petitioner submitted that the name of S.Sandhiya has been included, as if she has been selected, though she has secured lesser marks. The learned counsel for the petitioner further submitted that the selection of Gandhimathi, SI.No.7, Roll No.72125, D.Salina, Sl.No.8, Roll No.16016 and Karthika, SI.No. 9, Roll No.75016, all belonging to OBC category, against the vacancies meant for general category is illegal. 17. Inviting the attention of this court to the community certificate issued by the Tahsildar, Mambalam-Guindy Taluk, Chennai dated 30.1.2004, learned counsel for the petitioner submitted that when candidate G.Lakshmi Roll No.15921 in the combined merit list of female candidates, belonging to backward class has secured 56 marks, she should have been selected in the place of J.Sudha SI.No.11, Roll No. 15577 in the merit list, dated 14.9.2004, who had secured only 55 marks against the vacancy earmarked for B.C. Category and that J.Lakshmi has also been wrongly described as a candidate belonging to general category in the combined merit list drawn on 6.2.2004. 18. The learned counsel for the petitioner further submitted that the respondents have not followed the pattern of awarding the marks, as per the notification and therefore the selection is illegal. According to him, as per the notification,the candidates qualified in the physical efficiency test were allowed to write the Written test, for which the maximum prescribed mark was 50. The marks prescribed for the physical efficiency test was 25. The advertisement did not speak about any marks for interview or oral test. Even assuming that 25 marks were earmarked for the interview, it is contrary to the judgement of the Supreme Court. Learned counsel for the petitioner further submitted that even assuming that the department had allocated 25 marks for the interview, awarding 5 marks under the head "Special qualification", is not at all stated in the counter affidavit and therefore, the award of marks is contrary to the pattern of awarding marks and if 5 marks are added, the total marks for the entire selection would come to 105 (Written test - 50 marks + physical Efficiency Test - 25 + Interview - 25 + Special Qualification - 5 marks) and therefore the procedure followed for awarding the marks especially, Interview + Special Qualification, is only to facilitate certain candidates to be selected and therefore there is an irregularity committed by the respondents in the process of selection. 19. Finally, learned Senior counsel submitted if the court is not inclined to set aside the selection, instead of quashing the list, the petitioners may be accommodated as police constables in the Central Reserve Police in addition to the normal intake of CRPF. 20. Per contra, Mr.G.Sankaran, learned Standing Counsel for Central Government appearing for the respondents submitted that the selection for the post of constable has been done in accordance with the procedure and as per the advertisement. Referring to the prayer made in the Writ Petitions, learned counsel for the respondents submitted that when the petitioners have sought for a Writ of Mandamus to issue selection only on the basis of merit seniority in the waiting list for the post of constables/GD in CRPF and having participated in the process of selection and gone through the interview and other tests, it is not open to the petitioners to attack the procedure followed in the Selection process and consequently challenge the very selection itself. Referring to the counter affidavit, learned counsel for the respondents submitted that out of 16 vacancies for the post of constables/GD Mahila, eight vacancies were allotted for general category, four for Scheduled Caste candidates, three for OBC and one post of ST category were allotted. He further submitted that after the completion of selection at Vellore and Trichy, a combined seniority list was prepared and 86 female candidates qualified in the test were arranged in the descending order of marks secured by them. He further submitted that candidates belonging to SC and OBC categories, secured more marks than the candidates belonging to general category and therefore they were selected as against the vacancies meant for general category and such procedure is not illegal. The selection of the candidates belonging to OBC/SC, as against the vacancies reserved for general category candidates cannot be said to be in excess of the notified vacancies. 21. Referring to the various lists in the typed set of papers, learned counsel for the respondents submitted that on 6.2.2004, a combined merit list was prepared in the descending order of merit consisting of all the categories namely General, OBC and SC. Apart from the overall merit list, candidates belonging to the respective communitywise categories, were also arranged in the order of merit and separate merit lists were prepared community wise, i.e., General, OBC, SC. OBC candidates, who claimed age relaxation as per the advertisement were granted relaxation and they were included in the list of OBC candidates. Referring to the office memorandum dated 12th December, 1996 issued by the Ministry of Home Affairs, the learned counsel for the respondents further submitted that if SC/ST/OBC candidates, who are in the merit list of the general category on their own merits without availing any relaxation will be treated as general candidates and will not be adjusted against the reserved vacancies. Learned counsel for the respondents submitted that though P.Ajeetha D/o.K.Padmakaran, SI.No.5 Roll No.15695 had secured 62 marks, she was selected only against OBC category, for the reason that relaxation was granted in her favour. 22. Referring to the Manual of recruitment for the Central Reserve Police Force, learned counsel for the respondents submitted that 50 marks were allotted for written test, 25 marks are allotted for Physical Efficiency Test and out of the remaining 25 marks, 10 marks were allotted to the Special Qualification possessed by the candidates appearing for the selection. He further submitted that the petitioners were also awarded marks for Special Qualifications possessed by them and therefore there was no irregularity in awarding the marks to the other candidates, who were selected. As regards S.Sandhiya, learned counsel for the respondents submitted that the enclosure at page No. 48 of the typed set of papers was a candidate from Madurai Circle and she was not selected. The confusion in the communication dated 7th September, 2007 sent by the Commandant 135(M) BN CRPF, Gandhi Nagar, Gujarat to the Additional Inspector General of Police, Group Centre, CRPF, Avadi, Chennai, was only due to the same name with the same initial and therefore the petitioner cannot take advantage of the same and claim as if a wrong person has been selected by awarding extra marks. 23. In so far as the non selection of Lakshmi Serial No.10, Roll No.15921, learned counsel for the respondent submitted that the said candidate was treated as general candidate, as she had not claimed any relaxation in terms of the advertisement applicable to that community. 24. Learned counsel for the respondents further submitted that the cut of marks as per the selection list for the three different categories are as follows: General : 58; OBC:55 ; SC : 45. Both the petitioners have secured marks less than the cut of marks prescribed for candidates, belonging to their community and they were not within the zone of consideration and therefore, their case could not be considered for selection. Both the petitioners have not secured adequate marks to be included in the Selection List, either in OBC category or under the general category and therefore they were not selected for the post of constables. 25. Reiterating the contentions in the counter affidavit, he further submitted that the selection has been done in accordance with the advertisement and the recruitment manual. Out of 16 posts advertised, 15 of them, were already sent for training and one post ear marked for schedule Tribe category could not be filled up, due to want of eligible candidate and as the vacancies have already been filled up, the petitioners cannot be accommodated by way of additional intake and hence, prayed for dismissal of the writ petitions. Heard the learned counsel appearing for the parties and I perused the materials available on record. 26. The Central Reserve Police have notified for selection of constables/GD (Mahila) from candidates in Tamil Nadu. As per notification 8 posts were reserved for general category + ex servicemen, 4 posts were reserved for S.C. Category, three posts for OBC category and one post for ST category. As