Union Of India And Ors vs Probir Ghosh And Ors

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,

Karimganj",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

State will be recruited without the condition of having a domicile certificate from the designated authority of the J & K State.â€​,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

Admittedly the respondent in these two civil appeals belonged to the border district of Baksa which came under Code “02â€. As per AppendixÂC 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 “01â€​.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.30408Â​30409 of 2019,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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 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.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

In Column No.16 under paragraph 4.0 of AnnexureÂII, 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.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

The preference for BSF was to be indicated by the alphabet “Aâ€. The preference for CISF, CRPF, SSB, ITBP and Assam Rifles are to be indicated respectively by the alphabets “Bâ€, “Câ€, “Dâ€, “Eâ€",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

and “Fâ€. 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.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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

Unfortunately, the respondents in these appeals indicated preference only to one service. They did not secure more than or equal to the cutÂoff 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.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

In doing so, the High Court clearly overlooked Column No.16 under paragraph 4 of AnnexureÂ​II, to the Notification. This is clearly erroneous.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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 others 1986 SCC OnLine Pat 268 and the decision of the",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

Allahabad High Court in Bindhyachal Kumar Singh vs. Union of India and others. 2013 SCC OnLine All 9828.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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:Â​,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

“ 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 fiveÂroomed house,",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

it cannot be interpreted to mean that he would not accept a fourÂroomed 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.â€​",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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 contraryâ€. In the case on hand the instructions were very",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

clear and hence the decision of the Patna High Court will not apply.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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 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.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

Paragraph 5 of the said decision clinches the issue and it reads as follows:Â​,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

“5. Indisputably the respondent confined his preferÂ​ 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.â€​,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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…â€​",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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 AnnexureÂ​II to the Recruitment Notification.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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 AnnexureÂVII, to the Recruitment Notification. It is the argument of the appellant that paragraphÂ4 of the “important instructions to",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

candidatesâ€​ 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:Â​,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

“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.â€​,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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

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 hyperÂtechnical 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.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

But the case of the appellant in the above appeal is that the indication regarding nonÂcreamy 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 nonÂ​ creamy layer status.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

However, the respondents have filed as Annexure RÂ8, along with their application for vacating the stay (I.A.No.76255 of 2018), a caste certificate which actually contains a declaration about the nonÂcreamy 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 AnnexureÂ​VII to the Notification.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

But we do not know whether what is produced before us as Annexure RÂ8 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.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

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.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

Therefore, the appeals are allowed and the impugned order of the High Court is set aside. There will be no order as to costs.",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,