Som Dutt vs Union Of India And Ors.
2013 Latest Caselaw 1139 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Decided on: 07.03.2013

+                                  W.P.(C) 336/2013

       SOM DUTT                                        ..... Petitioner
                          Through: Sh. A.K. Trivedi, Advocate.

                          versus

       UNION OF INDIA AND ORS.            ..... Respondents
                     Through: Ms. Richa Kapoor, Standing
                     Councel.

       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE A.K. PATHAK

       MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

FACTS

1. The petitioner challenges his non-appointment to the post of Constable (GD) pursuant to a common recruitment test held in 2012, and seeks appropriate directions for the processing of his candidature, leading to appointment to that post.

2. The petitioner states that he was born on 08.03.1991 had applied for the post of Constable (GD) in CAPF Examination, 2012 under the OBC category for the Delhi State and had cleared the written examination with a score of 64 marks, following which he was issued an admission certificate for medical examination which declared him to be „fit‟. However, when the results were announced,

W.P.(C)336/2013 Page 1 his name did not appear in the list of selected candidates; the name of one Mr. Vicky Yadav appeared who had scored lesser marks than the petitioner, i.e. 63 marks in the written test. Aggrieved by the same, the petitioner has invoked the writ jurisdiction of this court.

3. It is contended that the petitioner had scored more than the last person who qualified in the OBC category and had to be appointed for the job on the basis of merit; the respondents‟ failure to do so is arbitrary and illegal and in violation of Articles 14 and 16 of the Constitution of India. Learned counsel for the petitioner urged that it is settled law that the person who secures merit in the selection compared to others with lesser marks has better claim to appointment, unless any strong reasons for not considering the more meritorious candidate exist. The learned counsel contends that no such reasons have been specified by the respondents.

4. The learned Standing Counsel for the respondents has based her arguments completely on the stipulations contained in the Notice of the Staff Selection Committee (SSC). Rule 2 provides that:

"IMPORTANT INSTRUCTIONS TO CANDIDATES

XXXXXX XXXXXX XXXXXX

„2. In view of the anticipated large number of applicants, scrutiny of the eligibility and other aspects will not be undertaken before the PST/PET and Written Examination and, therefore, the candidature will be accepted only provisionally. Candidates are advised to go through the requirements of educational qualification, age, physical standards, etc and satisfy themselves that they are eligible for the posts, before

W.P.(C)336/2013 Page 2 applying. Copies of supporting documents will be sought only from those candidates who qualify for the medical examination. When scrutiny is undertaken after the Written Examination, if any claim made in the application is not found substantiated, the candidature will be cancelled and the Commission's decision in this regard shall be final."

3. BEFORE APPLYING, CANDIDATES ARE ADVISED TO GO THROUGH THE DETAILED INSTRUCTIONS CONTAINED IN THIS NOTICE CAREFULLY. THIS NOTICE IS ALSO AVAILABLE ON THE WEBSITE OF THE COMMISSION (http://ssc.nic.in).

XXXXXX XXXXXX XXXXXX"

5. Further, the learned counsel for the respondents has relied upon Note-II under para 10 under the heading "Mode of Selection", which states:

"XXXXXX XXXXXX XXXXXX

NOTE II: The candidates applying for the examination should ensure that they fulfill all the eligibility conditions for admission to the examination. Their admission at all the stages of examination will be purely provisional, subject to their satisfying the prescribed eligibility conditions. If, on verification, at any time before or after the written examination and interview, it is found that they do not fulfil any of the eligibility conditions, their candidature for the examination will be cancelled by the Commission.

XXXXXX XXXXXX XXXXXX"

6. The learned counsel relied upon Column 16 of the Brochure containing instructions for filling up the application which provides

W.P.(C)336/2013 Page 3 that:

"XXXXXX XXXXXX XXXXXX

Column 16. Preference for Posts

Candidates should carefully indicate preference for Post under different Forces. Option once exercised will be final and no change will be allowed under any circumstances."

XXXXXX XXXXXX XXXXXX"

7. Relying upon the aforesaid provisions, learned counsel for the respondents submits that the admission given to the petitioner was merely provisional in nature and when the requirements of filling up the details in Column 16 of the application form, relating to the preference for posts has been left blank by the petitioner, he has failed to comply with the eligibility criteria and is hence liable to be rejected. The counsel contends that while the petitioner had failed to give the required details in Column 16 of the application form, the last selected person, Mr. Vicky Yadav had made a clear preference of "BDAEFC" for the State of Delhi under the OBC Category. Further, the learned counsel relies on the write-up of the Reserve List-2, Para 2 which states:

"XXXXXX XXXXXX XXXXXX

2.....................there are candidates who were not selected due to blank/invalid/limited options and at the same time some vacancies remained unfilled in their respective States/Border Districts/Naxal and Militancy

W.P.(C)336/2013 Page 4 affected Districts, Commission has decided in consultation with MHA, to issue Reserve List II allocate Forces to such candidates as per their merit treating their candidature under default option i.e. ABCDEF.

XXXXXX XXXXXX XXXXXX"

8. Paras 3(i) & (ii) of the write-up provides that:

"XXXXXX XXXXXX XXXXXX

(i) All the undiverted unfulfilled vacancies after declaration of Select List and Reserve List were considered.

(ii) Candidates who were not selected due to Blank/invalid/limited options were considered for allocation in RL-2 after substituting their preference as ABCDEF i.e. the default preference order in the notice.

XXXXXX XXXXXX XXXXXX"

9. On this ground, the learned counsel for the respondents contended that there was no vacancy left which could have been allotted to the petitioner and consequently, his application was rejected. The learned counsel referred to the case of Manpreet Kaur Randhawa v. Baba Farid University of Health of the High Court of Punjab and Haryana in CWP 13688/2001 to submit that the conditions of the Brochure are binding and must be adhered to by all concerned. ANALYSIS OF THE ARGUMENTS

10. This judgement relied upon by the learned counsel for the respondents is not applicable in the instant matter as the factual

W.P.(C)336/2013 Page 5 scheme around which the aforesaid ratio has been propounded by the Court is different from the one in the case at hand. In that case, the matter related to the admission of the petitioner into a medical college under the reservation for „rural area‟ where the respondents contended that she was not eligible to fall within such category at all. However, in the case at hand, it is not the contention of the respondents that the petitioner is not eligible for the OBC Category or the job but is merely a contention that the preference for posts criteria has been left blank. Thus, the judgment relied upon by the learned counsel for the respondents is not determinative of the controversy in this case.

11. The ground for rejection of the petitioner‟s candidature, as is evident from the above discussion, is that he failed to indicate his choice or preference for one or the other service. It is contended that as against the available vacancies in the OBC category for Delhi for the post, the other candidate, Vicky Yadav, had an entitlement to be considered, even though he scored less marks and was less meritorious than the petitioner, since his application was valid and complete in all particulars. It was argued, more specifically, that the scheme devised was such that instead of rejecting the applications of those who did not fill all particulars, the recruiting agency devised a method of postponing the consideration of the merits of such candidates, after considering the claims of those who had filled all the particulars. Till then, the names of candidates like the petitioners were kept in a waiting list.

12. The question which this Court has to address is whether the procedure adopted by the respondents in selecting candidates for the

W.P.(C)336/2013 Page 6 post of Constable is valid. Their contention is that in terms of the method and conditions stipulated in the recruitment process, if a candidate defaults in indicating the choice of his service (CRPF, Assam Rifles, BSF, etc.) his application would be considered after those of candidates whose applications are complete in particulars are dealt with. Such incomplete applications form the basis of a waiting list; if any vacancies exist after the selection list is prepared from amongst candidates whose applications are complete, those are filled, according to merit, from this waiting list.

13. There can be no doubt that a candidate who is desirous of participating in a selection process leading to appointment to a public position has to be diligent in his disclosures and should fill all the relevant particulars required in the application form issued by the recruiting agency. Equally, however, omission from disclosure of essential matters should be distinguished from failure to indicate choice of options for a particular service, when the recruitment process envisions filling of posts in different organizations. Thus, omission or withholding of information relating to age, date of birth, educational qualification, address for communication, may be fatal to the candidature. However, failure to indicate the choice should not lead to such drastic consequences. In an analogous situation, while dealing with the validity of a rule, which enabled reserved category candidates to be given a better choice of service, in the event they secured a place in the general merit list, on the basis of their being reserved candidates, the Supreme Court observed, in Union of India v. Ramesh Ram & Ors. (AIR 2010 SC 2691) that:

W.P.(C)336/2013 Page 7 "We must also remember that affirmative action measures should be scrutinized as per the standard of proportionality. This means that the criteria for any form of differential treatment should bear a rational correlation with a legitimate governmental objective. In this case a distinction has been made between Meritorious Reserved Category candidates and relatively lower ranked Reserved Category candidates. The amended Rule 16(2) only seeks to recognize the inter-se merit between these two classes of candidates for the purpose of allocation to the various civil services with due regard for the preferences indicated by the candidates..."

14. The facts of this case bring out in stark relief a glaring defect in the recruitment conditions. The omission of an applicant to indicate his choice (which may not be respected at all, given the viccitudes of ranking that he may obtain in the selection process) virtually seals his fate, and he is denied appointment, despite his undoubted superior merit, whereas a relatively less merited candidate is preferred, only on the ground that he had given his choice of service. This, to the Court‟s mind, is the epitome of arbitrariness. Taken to the extreme, a candidate (who does not like the petitioner indicate the choice of option of service) but who secures ranking within the first three places in the merit list, on the basis of his performance, would, on the respondents‟ argument, be shoved aside, and the application of those lower down in the merit list would be processed, and appointment letters issued to them; the more meritorious candidate would have to wait for an outside chance of a "left over" vacancy. Though not to that exaggerated extent, a somewhat similar result has ensued; the

W.P.(C)336/2013 Page 8 petitioner had undeniably fared better in the recruitment process; yet a less merited candidate of the same reserved (OBC) category was given appointment.

15. In view of the above discussion, this Court entertains no doubt that the petition has to succeed. A direction is accordingly given to process the petitioner‟s application to the post, and after completion of all formalities including verification of his particulars, issue an appointment letter to him, within ten weeks from today. In case all vacancies are filled up, the petitioner shall be given appointment in the next batch; his seniority shall, however, remain unaffected and shall be based on his ranking and performance in the selection test he undertook, and which is the subject of these proceedings. The writ petition is allowed in terms of these directions. No costs.

16. Order Dasti.

S. RAVINDRA BHAT (JUDGE)

A.K. PATHAK (JUDGE) MARCH 07, 2013

W.P.(C)336/2013 Page 9