Case: UNION OF INDIA AND ORS Vs. PROBIR GHOSH AND ORS

Delhi High Court by an Order dated 03.10.2018. The petition for review filed by the Union of India was also dismissed on 05.04.2019. As against the order passed in the writ petition and the review petition, the Union of India and the Staff Selection Commission have come up with SLP(C) Nos.30408--30409 of 2019. 18. Leave granted in SLP(C) Nos.30408--30409 of 2019. Civil Appeal Nos.4586--4587 of 2018 19. Since the issue involved in these two appeals lies on a narrow compass, we shall take up these appeals first. 20. As we have indicated in paragraph 14 above, the respondent in this writ petition belongs to the Scheduled Tribe and is domiciled in Baksa District of Assam. In Annexure--XIII to the Recruitment Notification dated 03.12.2011, the border districts of Assam were divided into two categories. The border districts of Dhubri, Cachar & Karimganj were given Code No.01. The border districts of Baksa, Chirang, Kokrajhar & Udalguri were assigned Code No.02. Since the respondent belonged to Baksa District, he was entitled to be considered as a candidate belonging to the border districts of Assam with Code No.02. 21. Paragraph 2 of the Recruitment Notification stated that the state--wise and category--wise tentative number of vacancies to be filled up are indicated in the Appendix. Appendix--C to the Recruitment Notification indicated the vacancy position in respect of CT (GD) (male and female) of B.G. Districts of CAPFs. The relevant portion of Appendix--C to the Recruitment Notification, which relates to the two categories (Code Nos. 01 and 02) of the border districts of Assam are reproduced for easy reference as follows: State Districts falling in their area Border Security Force (Male) Border Security Force (Female) Assam Rifles (Male) INDO TIBETAN BORDER POLICE FORCE (MALE) Shashastra Seema Bal (male) G.Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total UR OBC SC ST Total Assam Dhubri , Cachar, Karimgan j 83 42 11 19 155 20 10 3 4 37 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 103 52 14 23 192 Baksa, Chirang, Kokrajhar & Udalguri 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 42 21 6 9 78 42 21 6 9 78 22. The last portion of paragraph 1 of the Recruitment Notification indicated the importance of the domiciliary status. It reads as follows: State--wise vacancies are available for candidates domiciled in the State and reservation is also available for candidates domiciled in naxal and militancy affected areas and select border districts in each CAPFs. 23. Note-III under para 2 of the Recruitment Notification reads as follows: As the vacancies have been allotted to the concerned States/UTs, candidates are required to submit domicile certificates of the States indicated by them in the application at the time of the medical examination. 24. Paragraph 4(C) of the Recruitment Notification contained instructions regarding the process of certification and format of certificates. The relevant portion of paragraph 4C reads as follows: …Candidates belonging to the State/UT will only be considered for recruitment in their respective State/UT on production of valid Domicile Certificate issued by the competent authority so authorized by the concerned State/UT to prove their domiciliary status. Since the State of Assam is not issuing Domicile Certificate/PRC, candidates belonging to the state of Assam are not required to submit the same. However, their selection will be subject to verification of residential status from the concerned District Authorities. West Pakistani refugees who have settled in J & K but have not been given the status of J & K citizen of the State will be recruited without the condition of having a domicile certificate from the designated authority of the J & K State. 25. Admittedly the respondent in these two civil appeals belonged to the border district of Baksa which came under Code 02. As per Appendix--C to the Notification, the vacancies for the border districts coming under Code 02 of the State of Assam were nil in respect of BSF (Male and Female), Assam Rifles (Male) and ITBP (Male). Therefore, he could not have been considered for the vacancies earmarked for the border districts of Assam coming under Code 01. 26. But unfortunately the High Court, in the impugned order, proceeded on a curious reasoning that all border districts are liable to be treated alike and that once a person is found to belong to one border district, he is entitled to be considered in respect of all border districts. 27. The aforesaid reasoning of the High Court, if accepted, will tantamount to tampering with the Recruitment Notification. Once vacancies are earmarked separately for different categories of border districts, even in the Recruitment Notification, it is not possible to hold that all border districts are to be treated alike. Different considerations may weigh with the recruiting authorities for categorizing the border districts into two types. Therefore, the High Court was not justified in granting relief to the respondent on the ground that he must be considered as a person domiciled in the border district where vacancies were available, though he belonged to another border district, to which no vacancy was notified. 28. Relying upon one portion of paragraph 4(C) of the Recruitment Notification which we have extracted in paragraph 24 above (in bold letters), it is contended by the learned counsel for the respondent that when the State of Assam was admittedly not issuing domicile certificates, it is not proper to discriminate between 2 different categories of border districts. 29. But we are not impressed with the above argument. The requirement to produce a domicile certificate stands on a different footing from the categorization of border districts. Paragraph 4(C) of the Recruitment Notification dispenses with the requirement of certificate, in so far as the State of Assam is concerned. But it does not make the categorization of border districts inapplicable.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]26. But unfortunately the High Court, in the impugned order, proceeded on a curious reasoning that all border districts are liable to be treated alike and that once a person is found to belong to one border district, he is entitled to be considered in respect of all border districts.27. The aforesaid reasoning of the High Court, if accepted, will tantamount to tampering with the Recruitment Notification. Once vacancies are earmarked separately for different categories of border districts, even in the Recruitment Notification, it is not possible to hold that all border districts are to be treated alike. Different considerations may weigh with the recruiting authorities for categorizing the border districts into two types. Therefore, the High Court was not justified in granting relief to the respondent on the ground that he must be considered as a person domiciled in the border district where vacancies were available, though he belonged to another border district, to which no vacancy was notified.29. But we are not impressed with the above argument. The requirement to produce a domicile certificate stands on a different footing from the categorization of border districts. Paragraph 4(C) of the Recruitment Notification dispenses with the requirement of certificate, in so far as the State of Assam is concerned. But it does not make the categorization of border districts inapplicable.36. Unfortunately, the respondents in these appeals indicated preference only to one service. They did not secure more than or equal to the cut-off mark for that service in the category to which they belonged. It is true that candidates who secured lesser marks than these respondents have been selected in other services, but it was because of the expression of their openness for appointment to any service, even at the time of submitting the application. The respondents have become wiser after the event.37. The High Court proceeded on the basis that the candidates cannot be pinned down to the preference indicated in the application form and that appointing persons who secured lesser marks and rejecting those who secured higher marks on this ground, would be violative of Article 14 of the Constitution.38. In doing so, the High Court clearly overlooked Column No.16 under paragraph 4 of Annexure--II, to the Notification. This is clearly erroneous.40. In Ram Bilash Ram (supra), the High Court of Patna interpreted the word preference to mean a mere indication of a choice and held that the same cannot be taken to indicate the rejection of other options. The relevant portion of the judgment reads as follows:-11. So, the ordinary meaning of preference is to give priority to one over another. It would mean that by giving preference to one the person shows his liking for it over the others. This does not mean that by giving preference or priority to one, he shows his dislike for others and opts against them. So, if the appellant gave preference to some services/posts, it cannot be said that he has withdrawn his candidature for the rest of the services/posts. Any contrary inference drawn on the basis of preference list would be opposed to the principle of natural justice. If one says that her prefers a five-roomed house, it cannot be interpreted to mean that he would not accept a four-roomed house if no five- roomed house is made available to him. The term preference always indicates that the person has a choice to make. It cannot be interpreted to mean that if he is not offered the thing for which he has shown his preference, he will not accept the other things offered to him for which also he was otherwise eligible and for which also he was candidate from the very beginning. If the applicant had no choice left with him, as he was not found suitable for the services/posts for which he had shown preference, it cannot be said that he has abandoned his claim for the rest of the services, as it cannot be presumed that he would prefer to remain unemployed, if he did not get services/posts of his choice.But in paragraph 12 of the said decision itself, the High Court made it clear that it would have been a different matter had there been a rule or instruction to the contrary. In the case on hand the instructions were very clear and hence the decision of the Patna High Court will not apply.42. As a matter of fact, a similar question came up for consideration before this Court in Union of India vs. M.V.V.S Murthy (1987) Supp.SCC 371. The candidate in that case preferred Indian Administrative Service in the Civil Services Examination, 1983. He was actually selected for IPS. He did not accept it but chose to appear for the next year Examination. When he could not make it in the next year examination, he gave a representation seeking at least to be allotted to IPS for the CSE 83 batch on the ground that candidates who had secured lesser marks than him have been allotted to IPS in CSE 1983. When it was not accepted, he approached the court, but this Court rejected his claim.43. Paragraph 5 of the said decision clinches the issue and it reads as follows:-5. Indisputably the respondent confined his prefer- ence only to the Indian Administrative Service. The note appearing below column 22 in the application form reads thus:In respect of the services/posts not covered by the entries above, it will be assumed that you have an equal preference for those services/posts. You will therefore, be considered for any of those services if you cannot be allotted to the services of your preference.The real meaning of this note appears to us to be that if preferences given by the candidate are not available to be accommodated on the basis of the results of the can- didates preference in the selection examination, in- stead of being rejected he would be available to be con- sidered for the other service. As already pointed out, the Civil Services Examination is a combined examina- tion for several services and when a vacancy is not available within the field of the candidates choice, it is open to the Central Government to consider the candi- date for other services. The effect of this note is not that preferences given by a candidate securing a place lower to the respondent would not be entitled to his preference because he has been placed below the re- spondent in ranking. If ranking alone is to be the test, preferences would have no meaning. On the other hand, the procedure that preferences are accept- able with reference to the position in the final list till va- cancies in the services preferred are exhausted is the most logical one and meets the requirements of the scheme. Merely because the respondent was placed at the 280th place in the merit list and someone else placed at No. 291 was being offered the Indian Police Service in keeping with his preference, would not give the respondent any cause of action…44. Therefore, the High Court was clearly wrong in granting relief to the respondents (i) by diluting the significance of preferences given by candidates; and (ii) in nullifying the effect of the instructions contained in Column No.16 of paragraph 4 of Annexure--II to the Recruitment Notification.48. It is true that the power to issue caste certificates vests with the officers of the State Government and that there is no uniformity in this regard. Therefore, some leverage has to be given.51. But we do not know whether what is produced before us as Annexure R--8 along with I.A.No.76255 of 2018 was the caste certificate actually produced by that respondent. If this is the certificate that he had actually enclosed to his application, there would have been no occasion for the High Court to examine whether the objection relates to substance or mere form. At this level, in an appeal before the highest Court, it is not possible for us to look into this question of fact. This is especially so since the recruitment relates to uniformed services, where physical fitness of the incumbents is of utmost importance. A period of more than 10 years have now passed from the date of Notification. Therefore, at this stage it is not possible to enter into disputed questions of fact and grant relief to those two respondents.52. In view of the above, these appeals are also liable to be allowed.53. In normal circumstances, the above argument would have really appealed to us as it is legally well founded. But in this case even admittedly some of the petitioners who approached the court have been granted relief, due to the revision of Merit List. It means that each of the candidates who were before the High Court had some distinguishable feature and some of them got the relief even from the appellants. Therefore, the contention that the appellants cannot blow hot and cold in respect of a few candidates may not hold water.