Delhi High Court
Amresh Shukla vs Directorate General, C.I.S.F. ... on 28 September, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: September 13, 2022
Pronounced on: September 28, 2022
+ W.P.(C) 979/2012
AMRESH SHUKLA ..... Petitioner
Through: Mr. Ankur Chhibber and Mr.
Anshuman Mehrotra, Advocates
Versus
DIRECTORATE GENERAL, C.I.S.F. AND ANR. ..... Respondents
Through: Ms. Amrita Prakash, CGSC with Mr.
Sanjay Kumar, Insp./CISF and Mr.
Sunil Kumar Khushwaha, SI/CISF for
R-1
Mr. Shohit Chaudhary and Mr.
Siddhant K. Singh, Advocates for-R-3
SI Prahlad Devenda (CISF)
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
JUDGMENT
SAURABH BANERJEE, J.
1. The petitioner had applied for the post of Assistant Commandant1
(EXE) in the Central Industrial Security Force2 Limited Departmental
Competitive Examination3 -2010 and 2011 under „General‟ category for the
hereinafter referred to as „AC‟
hereinafter referred to as „CISF‟
hereinafter referred to as „LDCE‟
Signature Not Verified
By:BABLOO SHAH
Signing Date:28.09.2022
17:14:07
year 2010 pursuant to applications invited for the recruitment for the years
2010 and 2011 vide Ministry of Home Affairs4 Notification on 16.04.2011.
2. It is the case of the petitioner that though his name appeared in the list
of successful candidates for the year 2010 in order of merit published by the
Union Public Service Commission5 and also in the list of recruitment to the
post of AC(EXE) through LDCE 2010-2011 issued by the Director
General6, CISF, both dated 21.11.2011, but unfortunately, based on revised
scrutiny and certification by DG, CISF, the UPSC recast the said list of
candidates in order of merit in supersession of the said list of 21.11.2011.
The same resulted in deletion of the name of petitioner from the recasted list
of successful candidates for the year 2010. Subsequently, the DG, CISF
adopted and affirmed the recast list and published it on 10.02.2012.
3. The petitioner attributes the above to discrepancies and apprehends
that the officials of CISF and UPSC are responsible for this. The petitioner
is aggrieved, firstly as the maximum age limit for the said post of AC(EXE)
in the CISF as per the Notification dated 16.04.2011 was 35 years and he
would be barred by age if not selected and thus be disqualified after 2010
and secondly as the last candidate in the list of successful candidates for the
year 2010 and the petitioner both secured same marks, i.e., there was a tie
break inter-se them, but as there was no „tie breaker principle‟ in the
Notification dated 16.04.2011, the name of the petitioner was deleted from
the list of candidates. As per petitioner, his name was not reckoned by CISF
as the CISF wrongly followed the then prevalent principle of UPSC whereby
UPSC reckoned „marks‟ in the written paper rather than „age‟/date of birth
hereinafter referred as „MHA‟
hereinafter referred to as „UPSC‟
hereinafter referred to as „DG‟
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By:BABLOO SHAH
Signing Date:28.09.2022
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as the basis for selection of a candidate to the post of AC(EXE) in the case
of a tie-break. The petitioner submits this was contrary to the usual practice
of selecting a candidate on the basis of „age‟/date of birth. To be noted that
amongst the various grounds taken by petitioner, learned counsel has
restricted the arguments only qua the second grievance enumerated
hereinbefore. The same are being dealt in the foregoing paragraphs below.
4. The petitioner has filed the present petition seeking the following
reliefs:
"a) To issue a writ of Certiorari for quashing the FAX/E-
MAIL Message No. E-32015(4)1/AC-LDCE-2010-
2011/PERS.I/509 dated 10.02.2012 issued by Director
General, CISF;
b) Issue a writ of Certiorari for quashing the list of finally
qualified candidate for the post of CISF, Asst. Commandant
LDCE-2010-2011 as published by respondent no. 2 though
press note dated 31.01.2012;
c) issue writ of mandamus or such other appropriate
directions & orders to the Respondent no. 2 to Respondent
no. 1, thereby directing the Respondent no. 1 to
restore/revive and adopt the list of successful candidates for
recruitment to the post of Asst. Commandant (exe) through
ace, Idce-2010-2011 published vide Fax/ E-mail message
No. e-32015(4)1/ac-ldce-2010-2011/pers.i/1967 dated
21.11.2011;
d) issue writ of mandamus or such other appropriate
directions & orders to the Respondent no. 1 to
restore/revive and adopt the list of successful candidates
published vide press note dated 21.11.2011
e) to issue writ of mandamus or such other appropriate
directions & orders to the Respondent no. 1, thereby
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By:BABLOO SHAH
Signing Date:28.09.2022
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directing the respondent no. 1 to declare Petitioner as
finally being selected for the recruitment to the recruitment
to the post of Asst. Commandant (EXE) through AC(LDCE-
2010-2011);
f) to issue writ of mandamus or such other appropriate
directions & orders to the Respondent no. 1 to issue offer of
appointment to the Petitioner for the post of Asst.
Commandant (EXE) through AC (LDCE-2010-2011)"
5. To put forth his case, learned counsel for petitioner contends that
when two or more candidates secure the same marks and there is no „tie
breaker principle‟ then in such a scenario „age‟/date of birth is the
determining factor of seniority to be reckoned. Thus, the petitioner herein
should have been selected over and above the last candidate in the list of
successful candidates for the year 2010 as it was the prevalent practice in
vogue. Learned counsel for petitioner also contends that the CISF should
have relied upon an earlier Office Memorandum7 dated 21.08.2000 issued
by MHA which introduced the system of LDCE for the promotion of
AC(GD) and the Standard Operating Procedure8 dated 17.08.2005 issued by
MHA even though they were both silent on the said issue.
6. Learned counsel for petitioner relied upon (i) the Relegation Policy
for AC(GD), CISF dated 09.07.2012 notified by MHA, which provided that
the inter-se-seniority of candidates of AC(GD) through LDCE and Sub-
Inspector(GD) through LDCE shall be arranged in order of merit which shall
be determined by adding together the marks obtained by them, thereafter, if
two or more candidates secure equal number of marks in the aggregate then
hereinafter referred to as „OM‟
hereinafter referred as „SOP‟
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By:BABLOO SHAH
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their order of merit shall be in order of their seniority in „age‟/ date of birth
and (ii) the examination conducted immediately after the CISF LDCE-2010-
2011, which also provided for „tie breaker principle‟ on the basis of
„age‟/date of birth and further upon (iii) the latest recommendation issued
subsequently, details and cut off marks for CISF LDCE-2021 which
prescribes the „tie breaker principle‟ on the basis of seniority in „age‟/ date
of birth. Based thereon, learned counsel for petitioner contends that as the
provisional seniority list of CISF officers shows that the name of the
petitioner is much before/ above the last candidate in the list of successful
candidates for the year 2010, the petitioner is senior in service and he should
have been selected over and above the said last candidate.
7. Learned counsel for petitioner further contends that the CISF has
wrongly adopted a „tie breaker principle‟ followed by the UPSC according
to which the candidates were selected based on „marks‟; that LDCE is
merely a mode of promotion in a situation where the rules for conducting the
examination are silent; it is not open to the CISF and/ or the UPSC to later
on change the rules and apply a principle that is applicable in the cases of
Direct Recruitment; that the directions and OMs of the Department of
Personnel and Training9 would be applicable, which prescribe that in case of
a tie break, seniority by age has to be taken into consideration; and lastly
even otherwise the conduct of CISF and UPSC while conducting subsequent
examinations and setting up the „tie breaker principle‟ by making seniority
by „age‟/date of birth criteria for selection of the candidates is reflective of
the general principles in this regard.
hereinafter referred to as „DoPT‟
Signature Not Verified
By:BABLOO SHAH
Signing Date:28.09.2022
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8. In support of his contention, learned counsel for petitioner relies upon
D.P. Das vs. Union of India10 wherein it has been held that in absence of a
rule governing seniority, the age of the candidate will be the determining
factor for seniority and similarly upon Vikas vs. State of Maharashtra11
wherein also it has been held that a candidate who is more in age is to be
appointed.
9. In response, CISF contends that UPSC conducted the LDCE
examination for the post of AC(EXE) in CISF for two years i.e., 2010 and
2011 and after re-examining the documents, the UPSC recast the result to
their satisfaction and two new fresh candidates were included by the UPSC.
Relying upon para 10 of MHA notification dated 16.04.2011, CISF contends
that the admission of the candidates after all the stages of examination was
purely provisional in nature subject to satisfaction of prescribed eligibility
conditions and since the petitioner was eligible for the vacancy of year 2010
only, he could not get placed in the recast merit list published by UPSC on
31.01.2012 as others scored more marks than him.
10. Similar to that, in response UPSC also contends that the examination
for LDCE-2010-2011 was conducted by it and not by the CISF and after
approval from the CISF it adopted the first of three principles, i.e. „if the
marks in aggregate are equal the candidate getting more marks in the
written total may be ranked higher‟ as enunciated on the UPSC website
under frequently asked questions for the examination in question and since
the petitioner scored lower marks than the last candidate in the list of
successful candidates for the year 2010 he was not selected. Further,
(2011) 8 SCC 115
(2015) SCC OnLine Bom 3387
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By:BABLOO SHAH
Signing Date:28.09.2022
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contended that the „tie breaker principle‟ is also available on the
Commission‟s Website and the UPSC further states that in none of the
examinations conducted by it, the „age‟/date of birth is reckoned as the first
criteria for selection under the „tie breaker principle‟. Further, for
determining the eligibility of a candidate for inclusion in the recommended
list UPSC had acted strictly as per the Rules of CISF LDCE-2010-2011 and
effected the revision of the already recommended list due to discrepancies
arising out of erroneous scrutiny of the eligibility of the candidates by the
CISF.
11. After hearing learned counsel for the parties and going through all the
documents before us alongwith other relevant documents, in the present case
the petitioner had applied for the post of AC(EXE) in CISF through LDCE-
2010-2011 for the years 2010 and 2011 pursuant to the Notification dated
16.04.2011 issued by the MHA, but was not selected as the last candidate in
the list of successful candidates for the year 2010 and the petitioner both
secured same marks, i.e., there was a tie break inter-se them and as there
was no „tie breaker principle‟ in the Notification dated 16.04.2011. Further,
based thereupon the name of the petitioner was deleted from the list of
candidates and that the UPSC was only instrumental in conducting the
examination thereof, i.e., it was merely acting for and on behalf of the CISF
as per instructions of the CISF. Thus, UPSC had a very limited role to play
as far as setting up the criterias, rule and regulations. In such a situation,
when the UPSC was acting as per instructions of the CISF and there was no
„tie breaker principle‟, it was prudent for the CISF to have found a solution
to resolve the deadlock on its own rather than adopting something which
was followed by the UPSC as CISF was the „Principal‟ and UPSC was the
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By:BABLOO SHAH
Signing Date:28.09.2022
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„Agent‟. Thus, the decision to reckon „marks‟ rather than „age‟/date of birth
as the basis for consideration and selection of a candidate to the post of
AC(EXE) by the CISF was improper as what was followed by the „Agent‟
UPSC cannot be allowed to overshadow what was followed by the
„Principal‟ CISF.
12. More so, as it was not open to the CISF and/ or the UPSC to later on
change the rules from what they were at the time of Notification dated
16.04.2011 and apply an alien principle followed by the UPSC not
applicable in similar cases of LDCE appointments by the CISF.
13. Interestingly, while choosing between „marks‟ and „age‟/date of birth
in the present case, we find that the OM dated 21.08.2000 and the SOP dated
17.08.2005 issued by the MHA for filling up the post of AC(GD) through
LDCE-2005-06 conducted by the same UPSC and the MHA, like the
Notification dated 16.04.2011 involved in the present petition, was also
silent about the „tie breaker principle‟ however the Relegation Policy for
AC(GD) in CISF notified by MHA on 09.07.2012 and the Recommendation
Details and Cut-off Marks in the CISF AC(EXE) for the LDCE-2021
specifically mention that in case of a tie break between two or more
candidates the governing factor would be „seniority in age‟ in the same
LDCE post. In such a scenario the CISF ought to have taken recourse to the
tie break followed by it in its usual course under similar circumstances for
reckoning „age‟/date of birth rather than „marks‟ as the basis for
consideration and selection of a candidate to the post of AC(EXE).
14. Having said so, no doubt the post of AC(GD) is different from that of
the AC(EXE) involved in the present petition but there was an already
existing policy framed by the CISF and further both AC(GD) and AC(EXE)
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By:BABLOO SHAH
Signing Date:28.09.2022
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are selected by the CISF following similar procedures; they are both
performing/ discharging similar duties and they are both working on similar
posts. In effect, they are both part of the similar level playing field. There is
thus no reason that the candidates who are AC(EXE) in the CISF should not
be given parity with the candidates who are AC(GD) in the CISF, especially
when the LDCE is a mode of promotion employed for both the said posts
and they are two sides of the same coin. There is nothing discriminatory in
adopting the similar provisions from the AC(GD) in case any provisions are
missing in the case of AC(EXE). Thus, we hold that they have to be
governed by the same rules when applying the „tie breaker principle‟ and
the sole determining factor to be reckoned for considering and selecting
seniority of candidate has to be „age‟/ date of birth of the candidate who was
born earlier and not „marks‟
15. In support of the above we rely upon D.P. Das (supra), cited by the
learned counsel for petitioner, which though was a case pertaining to
determination of inter-se seniority of candidates joining on the same day, but
the ratio is applicable to the facts of the present petition, wherein it has been
held as under:
"18. The law is clear that seniority is an incidence of
service and where the service rules prescribe the method of
its computation, it is squarely governed by such rules. In the
absence of a provision ordinarily the length of service is
taken into account. The Supreme Court in M.B. Joshi &
others. V. Satish Kumar Pandey & Ors., AIR 1993 SC 267
has laid down that it is the well settled principle of service
jurisprudence then in the absence of any specific rule the
seniority amongst persons holding similar posts in the same
cadre has to be determined on the basis of the length of the
service and not on any other fortuitous circumstances.
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By:BABLOO SHAH
Signing Date:28.09.2022
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19. Determination of seniority is a vital aspect in the service
career of an employee. His future promotion is dependent
on this. Therefore, the determination of seniority must be
based on some principles, which are just and fair. This is
the mandate of Articles 14 and 16.
xxxxxxxx
23. The appellant argued that the date of interview would
have to be considered as a guide for determination of
seniority. This cannot be accepted as such a date is wholly
fortuitous. Accepting as guideline, something which is
absolutely fortuitous and based on chance, is inherently
unfair and unjust. As in this case there is no rule prescribed
for the determination of seniority, this Court is left with only
the guideline flowing from the executive instruction of 1946,
in order to evolve a just policy, for determination of
seniority.
24. From the analysis of the executive instructions referred
to hereinabove, it is clear that the 1946 instruction has not
been superseded and the same refers to the acceptance of
the age of the candidate as the determining factor for
seniority. Such a basis is not fortuitous and is otherwise just
and reasonable.
25. In the premises aforesaid the seniority of the officers
who were recommended on the same date must be decided
by their respective age. The contrary view taken by the High
Court of fixing seniority on the basis of date of interview,
being wholly fortuitous, cannot be accepted.
xxxxxxx
27. For the reasons aforesaid this Court holds that for
determination of seniority of the officers who were
recommended on the same date, age is the only valid and
fair basis as such their seniority should be decided on the
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By:BABLOO SHAH
Signing Date:28.09.2022
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basis of age of the candidates who have been
recommended."
16. As such the „age‟/ date of birth, i.e., seniority of a candidate has to be
taken into reckoning for considering and selecting suitable candidates for the
post of AC(EXE) in CISF when the „tie breaker principle‟ is missing and
more so, whence the CISF has itself been adopting and applying the said
principle lately for the said post of AC(EXE) in CISF through LDCE
subsequent to LDCE-2010-2011 and also as the CISF was already adopting
and applying the said principle for the post of AC(GD).
17. This will hopefully bring an overall closure to the „tie breaker
principle‟ once and for all, especially whence it is not mentioned in the
advertisements issued for the post of LDCE for the benefit of everybody
including all the candidates applying for the said post from time to time. We
further hold, to avoid any kind of confusion, that in such a situation when
the „tie breaker principle‟ is missing, the CISF and other forces like the
CISF should consider „age‟/ date of birth to determine the seniority when
applying the „tie breaker principle‟ for a timely solution.
18. As such the arguments addressed by the learned counsels for CISF
and UPSC do not appeal to us for the reasons detailed above.
19. We are conscious that the present petition was filed in the year 2012
and that thereafter, much water has flown. Thus, if we direct the CISF to
offer appointment to petitioner with effect from 16.04.2011 i.e., the date of
Notification, then it would affect large number of officers who have been
selected subsequently and are not a party before us.
Signature Not Verified
By:BABLOO SHAH
Signing Date:28.09.2022
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20. Accordingly, we direct CISF to declare petitioner as finally selected
in the recruitment to the post of Assistant Commandant (EXE) through
LDCE-2010-2011 and issue him an offer of appointment for the said post
within a period of four weeks. The service of the petitioner shall be
reckoned from the date of his joining to the post of Assistant Commandant
(EXE) in CISF.
21. Needless to say, the said appointment of petitioner shall not have a
retrospective effect as the position qua the „tie breaker principle‟ was
unclear; and also as it would not be prudent to disturb the existing position.
Further, the appointment of petitioner shall not, in any manner, affect the
continuing service of the last candidate in the list of successful candidates
for the year 2010 who has been preferred above the petitioner on the basis of
securing more marks than him and all those appointed subsequent to the
Notification dated 16.04.2011 till date.
22. With aforesaid directions, the present petition is accordingly disposed
off.
(SAURABH BANERJEE)
JUDGE
(SURESH KUMAR KAIT)
JUDGE
SEPTEMBER 28, 2022/rr
Signature Not Verified
By:BABLOO SHAH
Signing Date:28.09.2022
17:14:07
