Delhi High Court
Bhawani Singh vs Union Of India And Anr. on 7 March, 2013
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 07.03.2013
+ W.P.(C) 4348/2012
BHAWANI SINGH ..... Petitioner
Through : Mr.K.K. Sharma, Adv.
versus
UNION OF INDIA AND ANR ..... Respondents
Through : Ms.Barkha Babbar, Adv.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A.K. PATHAK
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
1. Heard learned counsel for the parties in the petition.
2. The petitioner seeks a direction to the respondents to quash and
set aside the selection list of candidates dated 26.11.2011 for the post
of Constable in some of the para military organisations (BSF, CISF,
CRPF and SSB).
3. The brief facts relevant for deciding the Petition are that an
advertisement was issued, in 2011 calling for applications for the post
of Constable (GD) in para military organisations by the SSC. The
petitioner, an unreserved category candidate applied for the post. He
belongs to the border area somewhere in Bikaner, Rajasthan. The
advertisement required the candidates to indicate their preference or
choice of organisation in Column 17 of the application form. The
consequences of not filling the Column was also indicated in the notes
W.P.(C)4348/2012 Page 1
of the form. The petitioner did not fill the preferences. Apparently,
the SSC and the participating organisations had indicated that the
candidates belonging to certain backward, disturbed and border areas
would be given preference in respect of the vacancies which existed
or occurred in those respective regions/ areas.
4. The petitioner's complaint is that even though he scored 48
marks in the entire selection process which included physical, written
and medical test and interviews, he was not included in the final
selected list and another candidate who scored 47 marks who also
belongs to the same category from the border area, was selected and
appointed. It is argued further by the petitioner that apart from the
apparent arbitrariness, the respondents also acted in an unjustified
manner in diverting or not filling one vacancy which existed in
respect of the border area in Rajasthan.
5. The respondents have resisted these proceedings. They do not
deny that the petitioner had participated in the selection process.
They, however, rely upon para 17 of the conditions which mandated
that the concerned candidate should indicate the preference. Para 17
of the brochure states that :-
"17 Preference for Posts.
Candidates should carefully indicate preference for
CPOs. option once exercised will be final and no change
will be allowed under any circumstances".
6. It is contended by the respondents that having regard to
instructions in this regard whenever a candidate does not indicate his
W.P.(C)4348/2012 Page 2
choice of organisation, the SSC would consider his candidature at the
end, and go down in the order of preference in respect of the
concerned organisations, nominating each one as `A', `B', `C' and `D'
and after placing successful candidates who opt for such organisations
and then place candidates (who do not indicate any preference) in
order of merit.
7. It is submitted that by application of these criteria, the
respondents did not adopt any discriminatory practice. While the fact
that he belongs to unreserved category candidate from a backward
area is not denied, the respondents' emphasis is that at no point of
time was his candidature treated unfairly or in any other manner
different than other candidates'. Significantly, the respondents do not
deny that the other unreserved category candidate from Rajasthan,
also hailing from a backward region and who was offered
appointment, did secure 47 marks. However, this seeming
discrimination was justified saying that cut off marks for the BSF
amongst unreserved category candidate was 65 and that the petitioner,
therefore, had to measure upto that standard.
8. Before discussing the rival contentions, it would be relevant to
reproduce the relevant extract of the guidelines devolved by the SSC
in the year 2001 selection process. These are in Annexure 4 to the
counter affidavit, which discusses these concerns and issues and are
reproduced below :-
" The result has been processed with the assistance of
NIC Cell, SSC in the following manner finalised in
consultation with MHA in order to fill up maximum
number of vacancies -
W.P.(C)4348/2012 Page 3
(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. In case of vacancies in Border/ Naxal
or Militancy affected districts remaining unfilled in a
state, the vacancies have been filled with the surplus
candidates available in the respective state. Candidates
belonging to Border Districts/ 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 CPOs has been done as
per merit cum option of the candidates, subject to
availability of vacancies in State/UT concerned and
category-wise reservations.
(ii) MHA has advised that unfilled vacancies in
Jammu and Kashmir, North Eastern States (Assam,
Arunachal Pradesh, Manipur, Mizoram, Meghalaya,
Nagaland, Sikkim, Tripura), Naxal or 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 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 select list candidates who are getting
W.P.(C)4348/2012 Page 4
a better preference in the reserve list have been shifted to
reserve list.
(iv) Some candidates did not get allocated in the select
list due to blank/ invalid options. These candidates were
also considered for allocation in the reserve list after
substituting their preference as ABCD i.e. the default
preference order in the Notice."
9. The advertisement, published on 5.2.2011, indicated in a
separate tabular form, the number of vacancies in table `C' available
for special regions.
10. The common case of the parties is that the petitioner is one such
candidate who belongs to a border/ disturbed area for whom
preference in respect of such earmarked vacancies was to be extended.
It is stated that the petitioner's name could not be included in any list
or waiting list because he did not indicate the choice of organisation
which he wished to join.
11. It is apparent from the above discussion that the controversy
which the Court has to decide is extremely narrow. The case of the
candidates generally who do not indicate the choice of preference
organisation under Column 17 are kept in a separate list and
considered at the end after allocation of all candidates who indicate
their preference to various forces having regard to their option and
performance. In the case of the petitioner, there is no dispute or
denial about the fact that apart from his belonging to the unreserved
category based on which he has applied, and is eligible in all respects,
he is a candidate who belongs to border region for whom the posts
are specially earmarked in table `C'. If one views his claim from the
W.P.(C)4348/2012 Page 5
point of view of preference, it is evident that he ought to have given
the same preference - at least similar or approximate to other
candidates belonging to the same category (i.e. those candidates
belonging to such border or backward regions). In the present case,
however, the petitioner's omission to indicate the preference for
organisations in Column 17 has resulted in him being treated similar
to other general unreserved category candidates who are not from
border or special areas, thus acting to his disadvantage and in a sense,
unfairly. Had he indicated the choice in accordance with Column 17,
he might have very well been appointed, like in the case of the other
candidate with lower marks. Therefore, the inability of the
respondents to implement the instructions in para 7 (extracted above)
in such manner as to ensure that the candidate belonging to backward
or disturbed region are compared with those candidates who indicate
their choice, resulting in his exclusion from the selection list, and also
denial of appointment to him amounts to discrimination. The
candidate who was included amongst the unreserved category in the
backward region, scored 47 marks.
12. In view of the above discussion, this Court is of the opinion that
the petitioner is entitled to relief. However, this Court is mindful that
there are likely difficulties in the respondents appointing the Petitioner
into service as that could result in displacement of other selected
candidates. In the circumstances, learned counsel (for the petitioner)
submits that he has instructions to state that the petitioner would not
seek any seniority. Having regard to the statement, the respondents
are directed in the first instance to consider the petitioner's
W.P.(C)4348/2012 Page 6
candidature for appointment to any unfilled vacancy after treating his
application as one in the reserved/waiting list. If he is given
appointment, they should ensure that his name be added in the next
batch and thereafter he be sent for training. The petitioner shall be
intimated the final position within four weeks from today by the
respondents.
13. The writ petition is allowed in the above terms.
S. RAVINDRA BHAT
(JUDGE)
A.K. PATHAK
(JUDGE)
MARCH 07, 2013/`ns'
W.P.(C)4348/2012 Page 7
