Ajit Singh And 54 Others vs Union Of India And 4 Others
2018 Latest Caselaw 2012 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 58
 

 
Case :- WRIT - A No. - 48354 of 2017
 

 
Petitioner :- Ajit Singh And 54 Others
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Narendra Kumar,Sanjeev Kumar Kushwaha,Shailendra Kumar Verma
 
Counsel for Respondent :- A.S.G.I.,P K Pandey
 

 
Hon'ble Ashwani Kumar Mishra,J.

Heard learned counsels for the petitioners, Shri S.P. Singh, learned Additional Solicitor General of India assisted by Shri Gyan Prakash, learned Assistant Solicitor General of India and a large number of other counsels, who have appeared for the Union of India and other authorities.

Young and unemployed youth, running into thousands are before this Court in this bunch of writ petitions filed against their non-selection, for the appointment to the post of Constable (GD) in different paramilitary organizations. Their grievance is directed against selection proceedings undertaken by the recruitment agency, i.e., the Regional Staff Selection Commission, Allahabad. Petitioners complain of nepotism and gross infraction of applicable instructions in conduct of recruitment exercise initiated in the year 2011. Although the total number of similar writ petitions listed today are more than 500 but the grievance is identical. With some difference in the facts pleaded and grounds urged, the issue raised is common. This petition, i.e., Writ A No. - 48354 of 2017, is treated as the leading writ petition, which has 54 petitioners. Other petitions, which are heard along with the leading case, also have large number of petitioners and therefore, individual case of each petitioner need not be dealt with, separately, in as much as, points of determination are common to all. All writ petitions have been heard together on several days and judgement is being delivered in the leading writ petition, which shall govern all other similar petitions, which have been heard with this petition.

A brief background of facts leading to the controversy raised is noticed first.

Pursuant to 47th report of the Estimate Committee of Parliament (1967 - 68), as also the Administrative Reforms Commission, the Department of Personnel and Administrative Reforms of the Government of India, vide its resolution dated 04.09.1975, constituted the Subordinate Service Commission, which subsequently got re-designated as Staff Selection Commission (hereinafter referred to as, 'the Commission'). The task of recruitment to various Group - B (non-Gazetted) and Group - C (not-technical) posts in various Ministries / Departments of the Government of India is assigned to the Commission. The Ministry of Home Affairs, Government of India, vide its circular dated 11.01.2011, provided that common recruitment be undertaken by the Commission for the posts of Constable in different Central Paramilitary Forces (In short, 'CPF'). Guidelines were laid for dealing with eligibility conditions, as also allotment of vacancies. Salient features of the instructions issued for conduct of recruitment have been outlined in the affidavit of Deputy Director, Staff Selection Commission (CR), Allahabad, which are reproduced below:

"The nodal Ministry, i.e., Ministry of Home Affaris, vide para (III) under the heading "Allotment of Vacancies" of guidelines clearly held:-

1) 60% of vacancies will be allotted amongst States/UT's on the basis of population ratio.

2) 20% of vacancies in the Boarder Guarding Forces (BGFs, BSF, ITBP, SSB, Assam Rifles) will be allotted to border States, which fall within the responsibility of the Force.

3) 20% of vacancies in BGFS will be allotted to areas affected by militancy, i.e., J & K, North Eastern States and naxal affected areas. The district / areas affected by militancy shall be notified by the Government from time to time.

4) In forces other than Boarder Guarding Forces, 40% vacancies will be allotted to militancy affected areas i.e., J & K, North Eastern States and naxal affected areas. The district / areas affected by militancy shall be notified by the Government from time to time.

5) For diversion of annual vacancies from one State to another State, and also for diversion of vacancies of new raisings from one State to another in the same category or from one category to another category, approval of MHA will be required.

However, as per para 4(ii) of Write Up of Final Result declared on 28.11.2011, it was very clearly mentioned that " 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 States mentioned above, for inclusion in the reserved list."

Advertisement was, accordingly, issued for recruitment to the post of Constable (GD) in BSF, CISF, CRPF and SSB, 2011. The exercise also included the appointment of Constable (GD) in ITBP, 2011 and post of Rifle Man (GD) in Assam Rifle, 2011. The scheme of appointment has been brought on record. The vacancy has been specified State/category wise in respect of different central paramilitary forces. It is relevant to note that the vacancies were not categorized with reference to a State, but was separate and distinct with reference to naxal affected areas, border areas and general areas even within the State and therefore, the merit was to be drawn with reference to each such unit, separately. The earmarking of posts, with reference to a particular State, and further classification of post into distinct categories within the State has resulted in merit list being declared separately for all such units for each of CPF.

The vacancy was published in 'employment news' on 05.02.2011 and the last date for submission of application form was 04.03.2011. Physical standard test / physical efficiency test was held between March to April, 2011 and was followed with a written examination conducted on 01.05.2011. Medical examination was then conducted between June to July, 2011 and the final result of recruitment was declared on 28.11.2011. Shri Hemant Kumar, Deputy Director, Staff Selection Commission (CR), Allahabad, states in paragraph 5 of his affidavit dated 24.07.2018 that cut off of last selected candidate, as per the result declared on 28.11.2011, has not been altered and no person, who has secured marks below the cut off in the respective category, has been selected/appointed.

The recruitment by the Regional Centre of Commission, Allahabad, was limited to States of Bihar and Uttar Pradesh. Bihar was assigned State Code - 5, while for the State of Uttar Pradesh, the State Code was 33. A chart is enumerated in para 20 of the affidavit, detailing the categories (i.e., naxal, boarder & general) in respect of recruitments made with reference to their reservation category, i.e., Scheduled Castes, Scheduled Tribes, OBC, Unreserved and Ex Servicemen. The cut off score for each category declared on 28.11.2011, which has not been altered and has, thus, attained finality is enumerated herein after:-

State Code.

State Name and Area

CAPF

CATEGORY

SC

ST

OBC

UR

Ex. S

Bihar (General)

BSF

--

Bihar (General)

CISF

Bihar (General)

CRPF

--

Bihar (General)

SSB

--

Bihar (Border)

SSB

--

Bihar (Naxal)

BSF

--

Bihar (Naxal)

CISF

--

Bihar (Naxal)

CRPF

--

Bihar (Naxal)

SSB

--

Uttar Pradesh (Gen.)

BSF

Uttar Pradesh (Gen.)

CISF

Uttar Pradesh (Gen.)

CRFP

--

Uttar Pradesh (Gen.)

SSB

--

Uttar Pradesh (Border)

SSB

--

Uttar Pradesh (Naxal)

BSF

--

Uttar Pradesh (Naxal)

CISF

--

Uttar Pradesh (Naxal)

CRPF

--

Uttar Pradesh (Naxal)

SSB

--

--

At this juncture, it would also be relevant to refer to application form as well as the brochure, which contain instructions for filling up the application form. In clause 10 of the application form, the category of a candidate had to be specified, while in clause 11, it had to be clarified as to whether the applicant is an ex-serviceman or not. Person from border district had to fill the district code in column 16, while the candidate from militancy / naxal affected district was to specify the district in column 16.1. In clause 17, preference for organization had to be indicated by a candidate. The code for BSF was 'A', CISF 'B', CRPF 'C' and SSB 'D'.

It appears that many of the candidates, while filling up their form, had not filled column no. 17 by specifying all four preferences. The Commission, while recommending candidates for recruitment, restricted the consideration only to those candidates who had specifically indicated their option / choice for the paramilitary organizations and where the options were not indicated, such persons were not considered for recruitment. This aspect appears to have been raised in Writ Petition No. 7651 of 2012 before the Delhi High Court and a Division Bench, on 14.12.2012, proceeded to pass the following orders:-

"17. We dispose of the writ petition directing the respondents to revise the list dated November 28, 2011 and include in the said list the names of all candidates, in order of merit obtained, who were initially declared unfit but were later on declared fit at the Review Medical Board. All those who have qualified for selection in order of merit, which of necessity would include the petitioner would be issued letters offering appointment keeping in view their merit position and the force opted for. This would mean that the letter offering appointment would take into account the merit position and the option by a candidate.

18. We are issuing a general mandamus because experience have shown to us that whenever in the past a correction has been directed to be made good with respect to one person, the Court is flooded with a spate of writ petitions. Not that our only desire is to save precious judicial time, but even on principles of law we would be justified in issuing a general mandamus.

19. Where a wrong is found to be in rem by a public authority, it would be expected that the authority would take remedial action in rem and not with respect to a single individual. If a selection procedure is found to be contaminated, the benefit of decontamination must enure to all.

20. Compliance be made with the mandamus issued within eight weeks from today and needless to state all those who would be issued letters offering appointment would be entitle to their seniority as per their merit positions and all consequential benefits save and except wages, which need not be paid till they join service.

21. No costs."

Another Division Bench of Delhi High Court, in Deepak Kumar Singh and Others Vs. Union of India and Others Writ Petition (C) No. 5663 of 2013 with other connected matters, on 14.07.2014, passed the following orders:

"In view of the above, SCC is requested to consider the feasibility of selecting such meritorious candidates and allocating them forces randomly (draw of lots). As about 3 years have passed since CT/GD recruitment 2011, and many of the candidates falling under the subject category would have joined elsewhere, it would not be feasible to seek option from them within a prescribed time frame at this stage. Therefore, SCC is requested to kindly apprise the Hon'ble Court that while the respondents may consider appointment of the meritorious candidates, the Force - allocation may be made randomly on the basis of draw of lots.

In the light of the said decision taken by the respondents, the grievance of all these petitioners who were being denied appointment only because of the fact that they left column no. 17 blank or did not properly indicate their preference in the said form in terms of the order dated 16th May, 2014, although they were higher in merit stands redressed. The petitioners would be required to give their unconditional undertaking to the effect that they shall not claim any seniority or any consequential benefit qua those who are placed in the select list or the reserve list. These petitioners shall be filing their undertakings within a period of two weeks and SCC shall carry out the entire exercise of allocating these petitioners to the respective forces within a period of two months as an upper limit."

Based on the aforesaid direction issued by the Division Bench of Delhi High Court, subsequent revised lists were published on different dates in the years 2014, 2015 and 2017 and those candidates, whose claim stood omitted on account of not indicating preference the organization under clause 17, were also considered for appointment, if they had secured marks above the cut off in the respective category. As a result, the Commission proceeded to consider the cases of the applicants as per the preference indicated by them in column no. 17 and appointed persons, even where they had not indicated any such preference in column no. 17, if their marks, otherwise, were above the cut off in the respective category.

Petitioners, in this bunch of similar petitions, have complained that the authorities of the Commission have allowed recruitment to be made by considering the candidates for appointment even to States, and areas to which they do not belong, so as to secure their appointment by treating them in the categories where the merit was substantially lower, notwithstanding the fact that such candidates did not belong to those categories. As an illustration, reference has been made in leading writ petition to one Saurabh Chauhan, who had obtained 42, out of 100 marks and belongs to general category - 09 and State code - 33 (State of Uttar Pradesh). It is alleged that Shri Saurabh Chauhan has been appointed and is working with 12th Bn. SSB, Kishanganj in Bihar since 2012. In the counter affidavit, averments made in paragraph no. 18 of the writ petition, have been denied. It has been stated that Shri Saurabh Chauhan had wrongly stated that he belongs to border district, of which district code was 13, while he actually belongs to general area. It transpires that district - Baghpat did not fall in the border area as notified by the Ministry of Home Affairs and therefore, the concerned authorities have been directed to take action in accordance with Rule 23 of the SSB Rules, 2009 on priority. A letter for cancelling his selection has already been issued on 26.10.2017.

So far as the individual claim, raised by the different petitioners regarding issuance of appointment to persons below the cut off specified in the result declared on 28.11.2011, is concerned, the consistent stand of the Board has been that no person below the cut off has been selected and that, if any person was unauthorizedly placed in a wrong category, then such cases of aberration have been duly scrutinized and cancelled.

In the background of aforesaid facts, this bunch of writ petitions has been argued by the counsels for the petitioners. The grievance raised can be summarized as under:-

It is alleged:-

(a) That there exists large number of unfilled vacancies, i.e., approximately 28,044 or 12,000, which are required to be filled, and therefore, cut off marks published on 28.11.2011 be appropriately reduced, so as to consider petitioners' candidature against such unfilled vacancies;

(b) It is alleged that candidates with higher marks have been denied consideration on account of State code, border code, naxal code, caste code, etc.

(c) Candidates, having marks equal to the cut off in the respective category, have been denied appointment due to arbitrary adoption of tie criteria.

(d) Candidates although have higher merit, but were declared unfit in medical examination; whereafter, they qualified in Review Medical examination, but their names have not been placed in select list.

(e) Candidates, scoring marks above cut off, were declared unfit in medical examination. They, then, filed appeal before the appellate board within 15 days along with required draft after the medical examination of concerned Chief Medical Officer, who declared them fit, but they were never called for review medical examination.

The first part of the argument has been pressed with vehemence. It is contended that about 28,044 vacancies are still lying vacant, but the authorities have not reduced the cut off marks, so as to fill up all such posts. Grievance of the petitioners, in this regard, has been taken note of by this Court while passing following orders on 24.07.2018:-

"Arguments have been advanced by the learned counsels representing writ petitioners and by Sri Gyan Prakash, learned counsel for the respondents. During the course of arguments one of the issues that crops up for consideration is as to whether all advertised vacancies have been filled by the respondents or not? A supplementary affidavit has been filed in Writ Petition No.9438 of 2018, containing a reply to RTI query dated 15.3.2016, as per which 28044 vacancies are still lying vacant. It is also stated that the affidavits filed by the respondents are with reference to 42000 posts initially advertised whereas recruitment has been made to 72309 posts, including additional posts added subsequently.

Let this matter appear once again in the additional cause list on 26.7.2018. Respondents shall file a specific affidavit clarifying the aforesaid aspect. "

An affidavit has been filed by the Deputy Director of the Commission on 26.07.2018, in which a categorical statement is made, in paragraph no. 3, that no vacant post of Constable (GD) is available against the advertisement issued for recruitment in the year 2011. So far as issue of 28,044 posts reported to be vacant is concerned, it has been clarified that these vacancies pertain to either North-Eastern region, Jammu & Kashmir, Naxal and Militancy affected areas and that, no vacancy is available in the category to which the petitioners belong. A further reiteration is made in paragraph no. 9 of the said affidavit that there exists no change in the cut off marks for inclusion in selected list published on 28.11.2011. It is stated that most of the petitioners belong to general area of the State of Uttar Pradesh, for which category code is 33 and that, all posts pertaining to such area stand filled up. It is also stated that cut off declared on 28.11.2011 has not been compromised.

In view of the specific stand taken by the Commission, through the affidavit of its Deputy Director, the submission advanced on behalf of the petitioners that 28,044 posts or any other vacancy still remains available cannot be accepted. The instructions issued by the Ministry for conduct of recruitment, already extracted above, clearly records that candidates from the surplus categories would not be adjusted against vacant positions of Jammu & Kashmir, North Eastern States and naxal and militancy areas. The action of respondents, not to fill up such posts, is thus as per the instructions issued. The petitioners' plea, in that regard, therefore, stands rejected.

So far as the contention that candidates, having marks higher than cut off in the respective category, have been omitted from the consideration is concerned, the consistent stand of the Commission has been that no person with higher merit has been denied consideration for selection, if he/she, otherwise, fulfills the qualification and has been found medically fit. Some of the petitioners, however, contend that in their respective category, they have scored marks higher than cut off indicated in final result dated 28.11.2011, but they have still not been considered.

Shri S.P. Singh, learned Additional Solicitor General of India, assisted by Shri Gyan Prakash, Assistant Solicitor General of India, appearing for the Commission states, on instructions from the Deputy Director of the Commission, present in Court, that the Commission would be willing to examine such individual instances and to consider the individual cases in that regard, provided they fulfill the eligibility and are found medically fit.

In view of the fair stand taken by the respondents, it would be appropriate to observe that any of the petitioners, in this bunch of similar writ petitions, if has secured marks above the cut off in the respective category to which he belongs, it shall be open for him to approach the Commission, along with certified copy of this order, within a period of two weeks from today and the Commission shall scrutinize their claim and consider them for appointment within a further period of two months, thereafter. The Commission, however, shall be at liberty to examine the eligibility of the candidate and also, scrutinize the category, to which he belongs, apart from examining as to whether he is medically fit or not.

In view of the aforesaid discussion, no direction can be issued for consideration of claim for appointment of those petitioners, pursuant to the recruitment exercise initiated in the year 2011, where the petitioners have secured marks below the cut off specified in the final result dated 28.11.2011 and the prayer, to that extent, stands rejected.

So far as issue relating to appointments being made by altering State code / border code / naxal code / tie code, etc. is concerned, it would be pertinent to observe that all such instances, at best, would indicate aberration in dealing with the candidature of candidates / applicants by the Commission. In case of large scale recruitment, where appointments are to be made to more than 72,000 posts, such inadvertent violation / aberration cannot be ruled out entirely. This, however, would not give any right to a candidate to claim parity with them. Law is settled that equality is a positive concept and that, negative equality cannot be claimed. Petitioners, therefore, cannot claim any benefit, if appointment has been offered to a candidate on account of illegal change in State code/ border code / naxal code / tie code, etc. Such illegalities, however, would have to be examined and if found to exist, must be dealt with as per law.

It is, therefore, provided that in case any of the petitioners produces specific detail of unauthorized/illegal alteration of State code / border code / naxal code / tie code, etc., along with prima facie evidence, which has resulted in grant of selection contrary to the cut off, the Commission shall examine such instances and shall ensure that needful steps are taken to rectify the error. The Commission shall ensure that any appointment offered to a candidate, contrary to the result declared on 28.11.2011, on the strength of manipulation by altering their code, etc., must be dealt with, in accordance with law. Immediate action, as per law, would be taken by the Commission, after affording an opportunity of hearing to the person concerned.

So far as the issue relating to tie amongst the candidates is concerned, none of the petitioners has been able to cite any individual case of the writ petitioners, in that regard, and therefore, the issue need not be examined.

As regards the candidates, who have scored marks above the cut off notified on 28.11.2011 and qualified in review medical examination, but have not been selected, is concerned, it is provided that they shall approach the Commission, along with details of their claim, as also proof of their declaration, as being qualified in review medical examination, along with certified copy of this order, within a period of two weeks from today. The Commission shall individually examine such claim and ensure that appointment is offered to them in accordance with law, within a period of three months thereafter. Needless to say that if any such candidate has been declared medically fit and has secured marks above the cut off, he would not be denied appointment.

In the light of what has been discussed above, this bunch of writ petitions stands disposed of observing as under:

i) any of the petitioners, in this bunch of similar writ petitions, if has secured marks above the cut off in the respective category to which he belongs and has not been selected, shall be at liberty to approach the Commission, along with certified copy of this order, within a period of four weeks from today. The Commission shall scrutinize such claim and consider such candidate for appointment within a further period of three months, thereafter, provided he has been found medically fit by the medical board or the review medical board. The Commission, however, shall be at liberty to examine the eligibility of the candidate and also, scrutinize the category, to which he belongs, apart from examining as to whether he is adjudged to be medically fit by the competent authority;

ii) in case any of the petitioners produces specific detail of undue alteration of State code / border code / naxal code, etc. in a given case, so as to extend illegal benefit to a candidate, along with prima facie evidence, the Commission shall examine such instances and shall ensure that needful steps are taken to rectify the error. The Commission shall ensure that any candidate, who had not qualified for selection and has yet secured appointment on the strength of manipulation by altering their code, etc., must be dealt with, in accordance with law. Immediate action, as per law, would be taken by the Commission after affording an opportunity of hearing to the person concerned;

iii) as regards the candidates, who have scored marks above the cut off notified on 28.11.2011 and qualified in review medical examination, but have not been selected, is concerned, it is provided that they shall approach the Commission, along with details of their claim, as also proof of their declaration, as being qualified in review medical examination, along with certified copy of this order, within a period of fo ur weeks from today. The Commission shall individually examined their claim and the same shall be dealt with as per law. Needless to say that if any such candidate has been declared medically fit and has secured marks above the cut off, he would be considered for appointment;

iv) so far as those petitioners are concerned, who have scored marks above the cut off but were declared medically unfit and have, subsequently, applied for review medical examination, along with certificate of concerned Chief Medical Officer in the manner required within time, shall also be at liberty to approach the Commission, along with certified copy of this order, within four weeks from today. The Commission shall examine such individual grievance and take appropriate decision, as may be required in terms of the advertisement and in accordance with law, within a further period of three months, thereafter; and

v) no direction can be issued for consideration of claim for appointment pursuant to the recruitment exercise initiated in the year 2011, for those petitioners who have secured marks below the cut off specified in the final result dated 28.11.2011 and the prayer, to that extent, stands rejected.

This writ petition is disposed of on the aforesaid terms.

No order is, however, passed as to costs.

Order Date :-20.08.2018

Amit Mishra