Banty Sarkar vs Union Of India & Ors
2022 Latest Caselaw 5518 Cal

Item No.4

            IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                             APPELLATE SIDE


                            HEARD ON: 17.08.2022

                         DELIVERED ON: 17.08.2022

                                 CORAM:

        THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA

                            WPA 14652 of 2021

                               Banty Sarkar

                                 VERSUS

                           Union of India & Ors.


Appearance:-
Mr. Dibyendu Chatterjee,
Ms. Piyali Paul                                    .....for the petitioner.

Ms. Susmita Saha Dutta                        ... for the respondents.

                                JUDGMENT

(Judgment of the Court was delivered by HIRANMAY BHATTACHARYYA, J.)

1. The writ petitioner has prayed for a mandamus to set

aside and cancel the select list dated 7th September, 2018 and

to appoint him as soldier General Duty for recruitment process

of July, 2018.

2. The writ petitioner claims that he is the holder of NCC

"C" certificate and as per the rules he should be placed at

the top of the merit list.

3. Mr. Chatterjee, learned Advocate appearing for the

petitioner submits that the petitioner being the holder of

National Cadet Corps "C" certificate is exempted from sitting

in the written test and as per the rules will be awarded 100

marks out of 100 marks in the written examination. He further

submits that the petitioner has also obtained 100 marks out of

total 100 in the physical efficiency test. Therefore, the

petitioner has secured 200 out of 200 marks and he is entitled

to be appointed in the post of Solder (General Duty).

4. Mr. Chatterjee further submits that the respondent no.3

by an order dated August 3, 2019 observed that the

petitioner's name could not be short listed in the final merit

list on the basis of the available vacancies as he was

considered to be Priority 5 candidate. By drawing the

attention of the Court to the Office Order dated September 12,

2007, Mr. Chatterjee argues that the petitioner could not have

been placed under Priority 5 as the same is applicable for

other regiments / corps only in case of the serviceman who

died in harness. He further submits that a candidate holding

Roll No.1EME/WB?GD/260818/1287, who secured 192 marks out of

200 marks was given appointment by totally ignoring that the

petitioner having secured more marks is entitled to be

appointed.

5. Ms. Saha Dutta, learned Advocate appearing for the

respondents submits that the petitioner was rightly

categorised under Priority 5 since he is the son of an ex-

serviceman and the principle applicable to the case of

Priority 3 for own regiment / corps is to be implemented in

respect of other regiments / corps in the same order /

precedence. She further submits that the final merit list is

prepared on the basis of the priority list in terms of the

order of priority and the policy requiring placing the holder

of an NCC "C" certificate to be placed at the top of the panel

implies that such candidate is to be placed at the top of the

merit list under Priority 5. She submits that the

petitioner's name could not be short listed in the final merit

list on the vacancy available for Soldier (General Duty)

category allotted to one EME Centre as he was a priority 5

candidate.

6. Heard the learned Advocates for the parties and

considered the materials placed.

7. For the purpose of adjudication of this writ petition, it

would be relevant to extract the relevant portion of the

Office Order dated September 12, 2007, which defines the

priorities for recruitment under Unit Headquarters quota.

"6. Priority 2(Own Regt/Corps)(Disability Pensioners/Special Family Pensioners).

(a) In respect of Serviceman who die in harness, one son/one legally adopted son of one Real brother (if the Serviceman is unmarried) where the Widow /.......receipt of Special Family Pension.

        (b) One        Son/one          legally        adopted         son      of     Ex
               Servicemen          or     one       Real        brother        (if   the
               Serviceman          is      unmarried)            in     receipt        of
               Disability          Pension      more       than       20%,     and   the
               disability          is    attributed         to     /aggravated         by
               Military Service.


        7.     Priority        3        (Own    Regt/Corps)             (Serving/Ex-
        Serviceman).

(a) One son of Serviceman who die in harness to include legally adopted son whose death is not attributed to Military Service.

(b) One Son of Serving/Ex-Serviceman to include legally adopted son.

(c) One Brother of Serviceman/Ex-Serviceman if the Serviceman / Ex-Serviceman is unmarried. (in such cases individual forefeit his right for his own Son/legally adopted Son).

9. Priority 5 (other Regt/Corps)

(a) As per Priorities 2 and 3 given in Paras 6 and 7 above for own Regt/Corps to be implemented in respect of other Regt/Corps in the same order/precedence."

8. It is not in dispute that the petitioner is the son of an

ex serviceman and the vacancy sought to be filled up in the

instant case pertains to other regiments / corps. Upon reading

the said office order as a whole, this Court is of the

considered view that a son of an ex-serviceman of other

regiments/corps shall fall under priority 5 and the petitioner

was rightly classified under Priority 5. The order of

preference given to the candidates as indicated in the Office

Order is a policy decision and this Court in exercise of the

powers of judicial service should refrain from interfering

with such order of preference.

9. In the guidelines for preparation of merit list dated

July 31, 2001, it has been stipulated that NCC "C" certificate

holders will be placed at the top of the merit list amongst

the qualified candidates provided he meets the other laid down

criteria.

10. The categorisation of candidates in terms of the

priorities as per the Office Order dated September 12, 2007 is

no doubt a criteria for preparation of the merit list.

Therefore, the guideline directing placement of an NCC "C"

certificate holder at the top of the merit list would

obviously mean that holder of such certificate is to be placed

at the top of the merit list under the concerned priority.

Since the petitioner falls within the Priority 5 in terms of

the guidelines dated July 31, 2001, the petitioner deserves to

have been placed at the top of the merit list under Priority 5

and not at the top of the merit list irrespective of the

categorisation of candidates as per the priorities as sought

to be argued by Mr. Chatterjee. Any contrary interpretation

would frustrate the very object of the said Office Order for

giving preference to candidates as per the priority list.

11. It is not the case of the writ petitioner that any

candidate falling in the same category under the Priority 5

list and has secured marks equal to or less than that of the

petitioner has been selected.

12. In view thereof, this Court does not find any reasons to

interfere with the decision of the respondent no.3 in not

placing the petitioner in the final merit list on the vacancy

for Soldier (General Duty) category allotted to 1 EME Centre.

13. For the aforesaid reasons, the writ petition fails and

the same is dismissed without, however, any order as to costs.

14. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(HIRANMAY BHATTACHARYYA, J.)

Naren, AR(Ct.)