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

1. By a Notification dated 03.12.2011, the Staff Selection Commission invited applications for recruitment (i) of Constables (GD) in Central Armed Police Forces (CAPFs) such as ITBP, BSF, CISF, CRPF and SSB; and (ii) of Rifleman (GD) in Assam Rifles. Initially the number of posts sought to be filled up was notified as 39574, but the same was revised to 48802.2. As per the Notification, the process of recruitment was to comprise of Physical Standards Test, Physical Efficiency Test, Written Examination and Medical Examination.3. The closing date for submission of applications was fixed as 04.01.2012. However, candidates residing in North Eastern States, Jammu & Kashmir, Sikkim, a few districts of Himachal Pradesh, Andaman & Nicobar Islands and Lakshadweep were entitled to submit the applications on or before 11.01.2012.4. The Notification made it clear that the recruitment would be based upon reservations mentioned in the Appendix, state--wise and category--wise. Apart from the reservation for OBC, SC and ST candidates, the Notification provided for reservation for candidates domiciled in Naxal and Militancy affected areas and select border districts of some states in each of the services such as ITBP, BSF etc. In fact, relaxation in the upper age limit was also granted not only for SC, ST, OBC and ex-serviceman candidates, but also for those domiciled in certain areas and those dependents of victims killed in 1984 riots or in the communal riots of 2002 in Gujarat.5. Appendix--A to the Recruitment Notification dated 03.12.2011 showed that the vacancies were separately earmarked, (i) service-wise, such as Assam Rifles, BSF, CISF, CRPF, ITBP and Sashastra Seema Bal; (ii) State and Union Territory wise such as Andaman and Nicobar, Andhra Pradesh, Arunachal Pradesh etc.; and (iii) Intra-State wise for the entire State as well as Naxal affected areas/border districts of the same State. Appendix--C to the Notification indicated how the border districts of North Eastern States, Bihar, Gujarat, Himachal Pradesh, Jammu & Kashmir, Punjab and Rajasthan were also divided into one or more categories and how the vacancies are distributed among these areas. The vacancies in every service in respect of every State, under Appendix--A to the Notification were distributed further on the basis of the Rule of Reservation for OBCs, SCs and STs.6. At the cost of repetition it must be pointed out that the total number of about 48802 vacancies were distributed service-wise, state--wise, reserved category--wise and domiciliary status-wise in respect of border districts and Naxal/Militancy affected areas.7. Annexure--II to the Recruitment Notification contained Instructions for filling up the application. Column No.16 under paragraph 4.0 of the said Instructions dealt with preference for posts. This Column No.16 under paragraph 4.0 of Annexure--II to the Recruitment Notification dated 03.12.2011 reads as follows: Candidates should carefully indicate preference for post under different forces. Option once exercised will be final and no change will be allowed under any circumstances.8. The format of the certificate to be produced by candidates belonging to Scheduled Castes and Scheduled Tribes, was provided in Annexure--VI. The format of the certificate to be produced by OBCs was given in Annexure VII.9. Since vacancies were notified service-wise, state--wise and category--wise, Annexure- XII to the Recruitment Notification indicated the code numbers allotted to all the States and Union Territories and Annexure XIII separately indicated the code numbers allotted to different border districts of the North-Eastern States, Bihar, Gujarat, Himachal Pradesh, Jammu & Kashmir, Punjab, Rajasthan and West Bengal. Annexure--XIV provided the code numbers separately for the Naxal/Militancy affected districts in some of the States such as Andhra Pradesh, Bihar, Orissa, Jharkhand, Chhattisgarh etc.10. After the completion of the process of selection, the Staff Selection Commission published a Select List of candidates on 17.10.2012. Finding that their names did not find a place in the final Select List and contending that candidates who secured lesser marks than them are included in the Select List, a group of 26 persons filed a writ petition in WP (C) No.5520 of 2012 on the file of the Gauhati High Court. In addition to the contention revolving around the marks secured by them and the marks secured by some of the selected candidates, this group of 26 writ petitioners also contended that though two of them belonged to OBC category, they had been treated under the unreserved category. Therefore, these candidates sought a writ of certiorari to quash the final Select List of candidates, in so far as the State of Assam is concerned with a further direction to the respondents in the writ petition to prepare a fresh Select List.11. The said writ petition WP (C) No.5520 of 2012 was taken up by a learned Judge of the Gauhati High Court along with 14 other writ petitions. All the 15 writ petitions were allowed by the learned Judge, by a common order dated 04.01.2016.12. Following the decision rendered on 04.01.2016 in the said batch of 15 writ petitions, the learned Single Judge also allowed other similar writ petitions by separate orders dated 26.02.2016, 14.03.2016, 21.03.2016, 30.03.2016, 31.03.2016, 06.04.2016, 06.06.2016 and 09.06.2016.13. Aggrieved by these orders, the Union of India and the Staff Selection Commission filed an intra--court appeal before the Division Bench. It was stated in the Memorandum of Appeal that there were totally 476 candidates before the learned Single Judge in various writ petitions and that out of those candidates, 61 persons had been selected subsequently when revised results were announced.14. However, the intra--court appeal was filed with a delay. By an order dated 24.10.2016 the Division Bench of the High Court refused to condone the delay in filing the intra--court appeal. Therefore, the Union of India and the Staff Selection Commission have come up with Civil Appeal No.4585 of 2018, challenging the order of the learned Single Judge dated 04.01.2016 passed in WP(C) No.5520 of 2012.

Reasoning: 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.