ssc gd 2011 new court order allahabad
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. – 2013:AHC:149796
AFR
Reserved on 17.09.2013
Delivered on 29.10.2013
Court No. – 34
Case :- WRIT – A No. – 3283 of 2012
Petitioner :- Bindhyachal Kumar Singh
Respondent :- Union Of India & Others
Counsel for Petitioner :- Sanjay Kumar
Counsel for Respondent :- A.S.G.I.,K.J.Shukla
Hon’ble Sudhir Agarwal, J.
1. Heard Sri Sanjay Kumar, learned counsel for petitioner, and Sri K.J. Shukla, learned counsel appearing of respondent-Union of India.
2. Petitioner, Bindhayachal Kumar Singh, has competed in the selection/ recruitment to the post of Constable (G.D.) in various Para-Military Forces (termed by respondents as “Central Police Organizations, i.e. “CPO”), like, Border Security Force (in short “BSF”), Central Industrial Security Force (in short “CISF”), Central Reserve Police Force (in short “CRPF”) and Sashastra Sima Bal (in short “SSB”) conducted by Staff Selection Commission (hereinafter referred to as “SSC”). He claims to have secured 46 marks in final merit list declared on 2.12.2011, but has not been sent for training though it is alleged by him that certain candidates, who had secured lesser marks, i.e., 38, 39, 41, 42 and 45, have been shown selected and sent for training and that is how he has been discriminated. Accordingly, he has sought a writ of mandamus commanding respondents 1 to 4 to send him for training and appoint on the post of Constable (G.D.), in any of the aforesaid Forces, for which a combined recruitment was held.
3. Facts, in brief, giving rise to the present dispute, are as under.
4. SSC published an advertisement on 5.2.2011, inviting applications for recruitment and appointment on the post of Constable (G.D.) in CPOs, referred to above. The examination centres spread across the Country. The total number of vacancies, notified, was 49080. The candidates were required to submit applications to the concerned Regional Office of SSC under whose jurisdiction the centre of examination, selected by him/her, falls. Candidates were supposed to make a single application and multiple applications were liable to be rejected, outright, without any notice to the candidate. The vacancies available were State-wise and as per the domiciliation of candidate concerned, in the respective State. The candidates who domiciled in naxal and militancy affected areas were provided separate reservation. The details of vacancies was given in para 2 of the instructions which provided State-wise break up of vacancies in all the four CPOs, with further fragmentation of vacancies under reserved categories and unreserved. The allotment of respective organization to the candidates selected from each State depended on “merit-cum-option” as well as availability of vacancy in each CPO, earmarked for the State.
5. The candidates were required to indicate preference of CPOs and it was also provided that option once exercised will be final and no change will be allowed under any circumstances. SSC gave code to the above CPOs, as under:
Code Organization
(i) A BSF
(ii) B CISF
(iii) C CRPF
(iv) D SSB
6. The final result was processed by SSC in consultation with Ministry of Home Affairs and as per the guidelines communicated by the Ministry, which read as under:
“(i) Select list has been prepared as per state-wise vacancies with further reservation for candidates of Border Districts/ Naxal or Militancy affected districts within the state. Vacancies in Border/ Naxal or Militancy affected districts remaining unfilled in a state have been filled with the surplus candidates available in the respective state. Candidates belonging to Border/Naxal or Militancy affected districts have been considered against vacancies in such areas or in the State concerned as may be advantageous to them. However, it has been ensured that only candidates from a State/UT are considered against vacancies in such State/UT, for inclusion in the Select List. Allocation to various CAPFs has been done as per merit cum option of the candidates, subject to availability of vacancies in State/UT concerned and category-wise reservation.
(ii) MHA has advised that unfilled vacancies in Jammu & Kashmir, North Eastern States (Assam, Arunachal Pradesh, Manipur, Mizoram, Meghalaya, Nagaland, Sikkim, Tripura), Naxal and Militancy affected states (Andhra Pradesh, Bihar, Orissa, Jharkhand, Chhattisgarh, Madhya Pradesh, Maharashtra, Uttar Pradesh, West Bengal) should not be filled with candidates from surplus States/UTs. Therefore, such vacancies were not taken into consideration after preparation of the Select List while allotting surplus candidates against vacancies in deficit States/ UTs. Surplus candidates securing marks above the highest cut off marks fixed in the written examination for their respective categories were considered for allocation against the unfilled vacancies other than in the State mentioned above, for inclusion in the Reserve List.
(iii) In order to ensure that candidates selected in the reserve list are not allocated to a better preference as compared to the candidates with higher merit order in the select list, such candidates who are getting better preference while being considered against vacancies meant for other States are included in reserve list.
(iv) Some candidates did not get allocated in the select list due to blank/ invalid option. These candidates were also considered for allocation in the reserve list after substituting their preference as ABCD i.e. orders of preference in the Notice.”
7. The final result declared 44152 candidates successful, which included 6460 in the reserve list, for appointment to the post of Constable (G.D.) in the above CPOs.
8. Petitioner, admittedly, is an unreserved category candidate with Roll No. 3206023174. He applied for the post allotted in militancy/naxal affected Districts of Bihar. Though the petitioner claims to have filled in column pertaining to option, but the case set up by respondents is that the said column was left blank and petitioner did not give preferences to the organizations, though he ought to have done so. It is in these circumstances, he was considered to be placed only in reserve list, but since marks secured by him were less than the last candidate selected and placed in reserved list, petitioner, in the ultimate result, has not been selected.
9. The case set up by respondents is that since petitioner did not mention his option for the respective services and left the column meant for that purpose, blank, his merit could not be compared with those candidates who had filled in the column pertaining to option and who were considered for different services on the basis of the merit-cum-preference which was the criteria to be adopted by SSC, as per the instructions contained in the advertisement.
10. Though petitioner has seriously disputed the fact about filling of column no. 17 of the application form and insisted that he had filled in the preference of posts for CPOs, but could not produce any evidence in support of his claim. On the contrary, respondents, along with counter affidavit, have filed a photocopy of petitioner’s application form as Annexure-3 and a bare perusal thereof makes it clear that column no. 17 thereof is blank. The respondents, therefore, are right in stating that petitioner did not fill in column no. 17 in the application form and left the column, pertaining to preference of posts for CPOs, blank. It is in these circumstances, this Court has to examine whether non selection of petitioner in the case in hand is justified or not.
11. Respondents’ case is that the candidates, who did not fill in the preference column, they could not have been considered in the selection, based on merit-cut-option. The mere fact that the persons securing marks lesser than petitioner have been selected, therefore, would make no difference inasmuch they are the candidates who have exercised their option which the petitioner has failed. They are differently placed. It is, however, admitted that the forms having column no. 17 blank or invalidly filled in, have not been rejected outright. On the other hand, therein the respondents have substituted a suo moto/automatic preference in order of A, B, C, D, as per the codes prescribed for respective CPOs, and thereby, those candidates have been considered only for the purpose of allocation in reserve list and not in the select list.
12. The first issue need be considered by this Court is, whether this process adopted by respondents can be said to be per se arbitrary, or, in the facts and circumstances, is just and reasonable and warrants no interference.
13. There is no condition or instruction published by respondents that, any column in the application form, if left blank or not correctly filled in, that by itself shall be a sufficient error, illegality, or mistake, sufficient enough with the consequence of rejection of application form. The two conditions which empower SSC to reject applications form mentioned, are; (1) where more than one application are submitted; and, (2) if the eligibility conditions disclosed by the candidate are found incorrect. If candidate is not found eligible, his candidature is liable to be cancelled by SSC.
14. Leaving column no. 17 or any other column which is not concerned with the eligibility etc. may result suo motu in rejection of the candidature is neither prescribed in the instructions or conditions informed to the candidates, nor, it is the case of respondents hereat. What they claim is that the preference column, if not filled in by the candidate, would not enable him to be considered in merit, either with a deemed preference, applied due to default, or for any other reason, only for the purpose of “main list/ select list”, but such candidate can be considered for “reserve list” by applying deemed option in order of codes, i.e. A, B, C, D.
15. It clearly shows that the result of leaving column no. 17 blank is not fatal. The respondents do not find it sufficient or justified to reject an application form or the candidature of the candidate concerned for all purposes. They confined it for considering in preparation of reserve list and not select list. It is also not in dispute that for the preparation of merit list of the candidates against respective vacancies, State-wise etc., the criteria is merit-cum-option. This criterion is common for reserve list also. The respondents have prepared select list and the so called “reserve list”. Despite repeated query, respondents’ counsel could not tell any logical or substantial difference between a “select list” and a “reserve list” when the total number of candidates selected and recommended in the two lists are less than the total notified vacancies. As already noticed above, the number of vacancies, advertised in four CPOs is 49080, while the number of candidates, declared successful, in total, are 44152 which included 6460 placed in reserve list.
16. Meaning thereby the number of candidates declared successful and kept in select list is 37692, which is almost 11 thousand and odd, less than the total number of vacancies advertised. Therefore, for all practical purposes, the reserve list candidates which included 6460 successful candidates is at par with the select list and all the candidates placed in reserve list are almost sure and bound to get appointment. Here the status of “reserve list” is not that of a wait list, where the candidates selected and recommended is beyond the advertised number of vacancies, to the extent whereof select list is prepared. Here the “reserve list” as well as the “select list”, both include candidates whose aggregate number is much less than the total number of vacancies advertised. Why the respondents prepared a reserve list of lesser candidates, I do not find any reason either in the counter affidavit or otherwise placed before me.
17. It is not disputed that petitioner fulfil all the eligibility conditions with respect to physical requirements, medical requirements as also merit requirements. Had he filled in column no. 17, in own words of the respondents, petitioner could have been placed in the main select list, prepared on the criteria of merit-cum-option, since number of candidates selected therein have secured marks lesser than petitioner. Therefore, so far as petitioner, as an individual is concerned, he lack, neither eligibility nor efficiency nor physical capability needed for appointment in an organization like CPOs, as above, nor his academic and otherwise merit is inferior to any of those who are already selected and appointed. The only reason for denial of such selection and appointment, comes from the fact that respondents in their own wisdom decided to consider candidates who are otherwise eligible and possess requisite merit but have failed to fill in column no. 17 of application form, for the purpose of only reserve list and not the select list. This differentiation, in my view, is patently irrational, illogical and does not disclose any rational classification vis-à-vis object sought to be achieved.
18. Article 14 forbids class legislation but permits reasonable classification provided that it is founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and the differentia has a rational nexus to the object sought to be achieved by the legislation in question. In re the Special Courts Bill, 1978 (1979) 1 SCC 380, Chandrachud, C.J., speaking for majority of the Court adverted to large number of judicial precedents involving interpretation of Article 14 and culled out several propositions including the following:
(i) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
(ii) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(iii) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
SSC GD 2011 New Court Order Allahabad
(iv) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.
(v) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
(vi) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.
19. In Roshan Lal Tandon Vs. Union of India AIR 1967 SC 1889, one of the questions fell for consideration was whether the promotees and direct recruits who formed one class in Grade ‘D’ could thereafter be classified again depending upon the source from which they were drawn for the purpose of promotion to the next higher Grade ‘C’. This Court observed:
“In our opinion, the constitutional objection taken by the petitioner to this part of the notification is well-founded and must be accepted as correct. At the time when the petitioner and the direct recruits were appointed to Grade ‘D’, there was one class in Grade ‘D’ formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade ‘D’ were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade ‘C’. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade ‘C’.”
20. The ratio of the decision in Roshan Lal Tandon (supra) was reiterated in State of Jammu and Kashmir v. Shri Triloki Nath Khosa and Ors. 1974 (1) SCC 19 in the following words:
44.The key words of the judgment are: “The recruits from both the sources to Grade ‘D’ were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade ‘C’, (emphasis supplied). By this was meant that in the matter of promotional opportunities to Grade ‘C’, no discrimination could be made between promotees and direct recruits by reference to the source from which they were drawn. That is to say, if apprentice train examiners who were recruited directly to Grade ‘D’ as train examiners formed one common class with skilled artisans who were promoted to Grade ‘D’ as train examiners, no favoured treatment could be given to the former merely because they were directly recruited as train examiners and no discrimination could be made as against the latter merely because they were promotees. This is the true meaning of the observation extracted above and no more than this can be read into the sentence next following: “To put it differently, once the direct recruits and promotees are absorbed into one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade ‘C’.” In terms, this was just a different way of putting what had preceded.
21. Referring to above authorities, Apex Court in B. Manmad Reddy and Ors. Vs. Chandra Prakash Reddy and Ors. AIR 2010 SC 1001 observed:
“There is no gainsaying that classification must rest on a reasonable and intelligible basis and the same must bear a nexus to the object sought to be achieved by the statute. By its very nature classification can and is often fraught with the danger of resulting in artificial inequalities which make it necessary to subject the power to classify to restraints lest the guarantee of equality becomes illusory on account of classifications being fanciful instead of fair, intelligible or reasonable.” (emphasis added)
22. Despite repeated query, respondents could not tell as to why the candidates like petitioners, who did not fill in column no. 17 of the application form, with respect to preference, ought not have been considered for the main select list by treating all those applications to have given preference in order of the codes, i.e., A, B, C, D or 1, 2, 3, 4, as the case may be, which they have applied admittedly, by considering these candidates, while preparing reserve list, for the reason that this fault on the part of candidates like petitioner has not been treated fatal, so as to result in rejection of candidature or the application form, but treating this fault to be a mere irregularity, a default deemed option clause has been applied by respondents, but confined only for reserve list and not the select list. The approach of respondents, therefore, is patently arbitrary and violative of Articles 14 and 16 (1) of the Constitution of India.
23. The view, I am taking above, would obviously vitiate the process of preparation of final result by the respondents in its entirety, but since recruitment in question pertains to thousand of candidates and against 49 thousand and odd vacancies, 44 thousand and odd have been declared successful as long back as in 2011, leaving sufficient number of vacancies unfilled, therefore, I am confining relief in this case to the present petitioner only and direct respondents to treat petitioner’s preference/ option in respect to CPOs in order of A, B, C, D for the purpose of select list and thereby consider whether amongst the general category candidates, and the post(s) for which petitioner has applied, he is entitled to be declared successful. If a person securing lesser marks to him has been declared successful and included in select list, petitioner shall also be declared successful and further steps for his appointment/ sending for training, as the case may be, shall be taken without any further delay. This exercise, in any case, shall be completed within two months from the date of production of a certified copy of this judgment.
24. It is also made clear that in case petitioner is appointed, his appointment shall relate back to the date on which person next lower to him in merit was appointed, with all consequential benefits for the purpose of pay fixation, seniority, increment etc. except of actual arrears of salary, which shall be paid to petitioner from the date he is actually appointed.
25. The writ petition is allowed in the manner, as above.
26. The petitioner shall also be entitled to cost, which I quantify to Rs. 5,000/- (Rupees five thousand).
Dt. 29.10.2013
PS
SSC GD 2011 New Court Order Allahabad |
