Union Of India vs Probir Ghosh

CIVIL APPEAL NO. 4585 of 2018

UNION OF INDIA AND ORS. ... APPELLANT(S) Versus

PROBIR GHOSH AND ORS. ... RESPONDENT(S)

WITH

CIVIL APPEAL NOS.1441­1442 OF 2022 (@SPECIAL LEAVE PETITION (C) NOS. 30408­30409 OF 2019)

CIVIL APPEAL NOs.4586­4587 OF 2018

JUDGMENT

V. RAMASUBRAMANIAN, J.

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. Signature Not Verified

Natarajan Initially the number of posts sought to be filled up was notified as Digitally signed by R Date: 2022.02.17 16:35:24 IST Reason:

39574, but the same was revised to 48802.

1

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, state­wise

and category­wise. 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 ex­serviceman 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. Appendix­A to the Recruitment Notification dated

2 03.12.2011 showed that the vacancies were separately earmarked,

(i) service­wise, 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) Intra­State wise for the entire State as well as Naxal

affected areas/border districts of the same State. Appendix­C 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 Appendix­A 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 service­wise,

state­wise, reserved category­wise and domiciliary status­wise in

respect of border districts and Naxal/Militancy affected areas.

7. Annexure­II to the Recruitment Notification contained

“Instructions for filling up the application”. Column No.16 under

3 paragraph 4.0 of the said Instructions dealt with “preference for

posts”. This Column No.16 under paragraph 4.0 of Annexure­II 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 Annexure­VI. The format of the certificate to be

produced by OBCs was given in Annexure VII.

9. Since vacancies were notified service­wise, state­wise and

category­wise, Annexure­XII 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 North­Eastern

States, Bihar, Gujarat, Himachal Pradesh, Jammu & Kashmir,

Punjab, Rajasthan and West Bengal. Annexure­XIV provided the

code numbers separately for the Naxal/Militancy affected districts

in some of the States such as Andhra Pradesh, Bihar, Orissa,

4 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

5 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 intra­court 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 intra­court 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 intra­court 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

6 WP(C) No.5520 of 2012.

15. In this appeal (Civil Appeal No.4585 of 2018) only two issues

arise for consideration. They are, (i) whether the rejection of the

OBC certificate of a few candidates on the ground that they were

not in the prescribed format and the consequent categorization of

those candidates as general category candidates is correct?; and

(ii) whether candidates who have indicated preference to a

particular service can be kept out of consideration for appointment

to other services, despite these candidates having secured more

marks than the selected candidates in those other services?

16. One candidate who was issued with an order of

appointment, but which was subsequently cancelled on the

ground that he did not belong to the border district to which he

was selected, filed an independent writ petition before the Gauhati

High Court in WP (C) No.6153 of 2013. Holding that the domicile

of a person in one particular border district will not debar him

from being considered for appointment in another border district,

the Gauhati High Court allowed the said writ petition by a

Judgment dated 16.05.2016. A petition for review was filed by the

7 Union of India, but the same was also dismissed. Therefore,

challenging the order allowing W.P.(C) No.6153 of 2013 and

challenging the order passed in the Review Petition, the Union of

India and the Staff Selection Commission have come up with two

civil appeals in C.A. Nos.4586­4587 of 2018.

17. One candidate approached the Delhi High Court by way of a

writ petition in W.P.(C) No.8571 of 2015 contending that though

he indicated his preference for one particular service, he is entitled

to be considered for appointment in other services, on the basis of

his own merit. This writ petition was allowed by the 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.30408­30409 of 2019.

18. Leave granted in SLP(C) Nos.30408­30409 of 2019.

Civil Appeal Nos.4586­4587 of 2018

19. Since the issue involved in these two appeals lies on a

narrow compass, we shall take up these appeals first.

8

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 Annexure­XIII 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

state­wise and category­wise tentative number of vacancies to be

filled up are indicated in the Appendix. Appendix­C 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 Appendix­C 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:

9

State Districts Border Security Force (Male) Border Security Force (Female) Assam Rifles (Male) INDO TIBETAN BORDER Shashastra Seema Bal (male) G.Total falling in POLICE FORCE (MALE) their area 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 , 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 Cachar, Karimgan j Baksa, 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 Chirang, Kokrajhar & Udalguri

10

22. The last portion of paragraph 1 of the Recruitment

Notification indicated the importance of the domiciliary status. It

reads as follows:

“State­wise 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. Note­III 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

11 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 Appendix­C 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.

12 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

13 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.

30. Therefore, the Civil Appeal Nos. 4586 and 4587 of 2018 are

allowed and the impugned orders passed in W.P.(C) No.6153 of

2013 and in the review application are set aside. The writ petition

filed by the respondent shall stand dismissed.

Civil Appeal No. 4585 of 2018 & Civil Appeals arising out of Special Leave Petition (C) Nos.30408­30409 of 2019

31. As we have indicated in paragraph 13 above, two questions

arise for consideration in C.A.No.4585 of 2018. Only one

question arises for consideration in the other Civil Appeals

arising out of the judgment of the Delhi High Court.

32. The question that is common to the appeal arising out of the

judgment of the Gauhati High Court and the appeals arising out

of the Delhi High Court is whether candidates who have indicated

14 preference for a particular service can be kept out of

consideration for appointment to other services, despite such

candidates having secured more marks than the selected

candidates in those other services.

33. In Column No.16 under paragraph 4.0 of Annexure­II,

which is the brochure containing instructions for filling up the

application, candidates were called upon to carefully indicate

preference for the post under different Forces. It was also made

clear that option once exercised will be final and that no change

will be allowed thereafter.

34. The preference for BSF was to be indicated by the alphabet

“A”. The preference for CISF, CRPF, SSB, ITBP and Assam Rifles

are to be indicated respectively by the alphabets “B”, “C”, “D”, “E”

and “F”. The respondents are candidates who have clearly

indicated their preference to one service only. Some candidates

have indicated preferences to multiple services, as there was no

prohibition under the Recruitment Notification to do so.

35. What the Staff Selection Commission did was, to confine the

15 consideration of candidates who indicated preference only to one

service, to that service only. Candidates who indicated multiple

preferences were considered for all those services and depending

upon the cut off marks, they were allotted to any one of the

services.

36. Unfortunately, the respondents in these appeals indicated

preference only to one service. They did not secure more than or

equal to the cut­off 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.

16

38. In doing so, the High Court clearly overlooked Column

No.16 under paragraph 4 of Annexure­II, to the Notification. This

is clearly erroneous.

39. However, the learned counsel for the respondents relied

upon a decision of the Division Bench of the Patna High Court in

Ram Bilash Ram vs. State of Bihar and others1 and the

decision of the Allahabad High Court in Bindhyachal Kumar

Singh vs. Union of India and others.2.

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 1 1986 SCC OnLine Pat 268 2 2013 SCC OnLine All 9828

17 the basis of preference list would be opposed to the principle of natural justice. If one says that her prefers a five­roomed house, it cannot be interpreted to mean that he would not accept a four­roomed 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.

41. In Bindhyachal Kumar Singh (supra), the Allahabad High

Court was concerned with a case where the candidate left the

column relating to preference, blank. Therefore, the High Court

held that in the absence of any condition or instruction to the

18 effect that if any column in the application form is left blank, the

application form would be rejected, and the approach adopted by

the Staff Selection Commission was not correct. Therefore, the

said case is also not on par with the case on hand.

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

Murthy3. 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:­

3 (1987) Supp.SCC 371

19 “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 didate's 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 candidate's 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

20 preferences given by candidates; and (ii) in nullifying the effect of

the instructions contained in Column No.16 of paragraph 4 of

Annexure­II to the Recruitment Notification.

45. Coming to the second issue which arises only in respect of

two respondents in Civil Appeal No.4585 of 2018, the case of the

appellant is that those two candidates produced caste certificates

to show that they belonged to the OBC category, but those

certificates were not in the format prescribed in Annexure­VII, to

the Recruitment Notification. It is the argument of the appellant

that paragraph­4 of the “important instructions to candidates” in

the Recruitment Notification made it clear that certificates in

respect of these claims should be in the format prescribed.

Paragraph 4 reads as follows:­

“4. Candidates seeking reservation benefits as SC/ST/OBC/ExS must ensure that they are entitled to such reservation as per eligibility prescribed in the Notice. They should also be in possession of the certificates in the format prescribed by Government of India in support of their claim when the copies of the certificates will be sought after the Written Examination.”

46. The High Court rejected the contention of the appellant on

21 the ground that what is of importance is the substance and not

the form and that a certificate holder has no control over the

format of the certificate.

47. Defending the judgment of the High Court, it is contended

by the learned counsel for the respondents that so long as the

status of the respondents is not disputed by the Staff Selection

Commission, it is not open to them to raise hyper­technical

objections on the basis of the format in which the certificate is

produced. This is especially so when the candidates have no

control over the authorities who are competent to issue the

certificates. Therefore, the learned counsel for the respondents

submitted that the order of the High Court in respect of the

candidates belonging to OBC category, does not call for any

interference.

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.

22

49. But the case of the appellant in the above appeal is that the

indication regarding non­creamy layer status in the caste

certificate is one of substance and not of form. The very eligibility

to seek the benefit of reservation would depend upon the non­

creamy layer status.

50. However, the respondents have filed as Annexure R­8, along

with their application for vacating the stay (I.A.No.76255 of

2018), a caste certificate which actually contains a declaration

about the non­creamy layer status of one of the respondents. On

the basis of this certificate it was contended by the learned

counsel for the respondents that the certificate was actually in

the format prescribed in Annexure­VII to the Notification.

51. But we do not know whether what is produced before us as

Annexure R­8 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

23 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. But before we do so, we must deal with one last

contention of Mr. Siddharth Dave, learned senior counsel for the

respondents. Inviting our attention to the fact that by the order

impugned, the High Court disposed of 15 writ petitions, but the

appellants have chosen to file only one appeal against one of

those writ petitions. It was contended by the learned senior

counsel that after having allowed the common order passed in

other writ petitions to attain finality, it is not open to the

appellants to blow hot and cold.

53. In normal circumstances, the above argument would have

24 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.

54. Therefore, the appeals are allowed and the impugned order

of the High Court is set aside. There will be no order as to costs.

…..…………....................J. (Hemant Gupta)

.…..………......................J (V. Ramasubramanian)

New Delhi February 17, 2022

25