Rajasthan High Court - Jodhpur
Shivali Tomar vs Union Of India on 2 March, 2022
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 14599/2021
Shivali Tomar D/o Shri Anil Tomar, Aged About 25 Years, N136,
Ashiyana Amarbagh, Pali Road, Opposite Kudi Village, Jodhpur-
342013
----Petitioner
Versus
1. Union Of India, Through The Secretary, Ministry Of
Defense, South Block, New Delhi.
2. Indian Air Force, Through Chief Of Air Staff, Air
Headquarters (Vayu Bhawan), Rafi Marg, New Delhi-
110106
3. Wing Commander, Wing Commanders Pers Offices-3 (B),
Headquarters (Vayu Bhawan), Room No. 17, J Block, Moti
Lal Nehru Marg, New Delhi.
----Respondents
For Petitioner(s) : Mr. Shridhar Mehta.
For Respondent(s) : Mr. Mukesh Rajpurohit, ASG with
Mr. Navneet Singh Birkh.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 02/03/2022 This writ petition has been filed by the petitioner questioning the validity of the final merit list issued by the respondent no. 4 for the post of Ground Duty (non-technical) Administration-SSC (M&W) and a direction to prepare a fresh merit list strictly in accordance with the marks secured by the respective candidates and include the petitioner's name for the training.
The respondents issued notification (Annex.1) for Air Force Common Admission Test (AFCAT - 02/2020) for Flying Branch and Ground Duty (Technical and Non-Technical) Branches/NCC Special (Downloaded on 03/03/2022 at 08:29:15 PM) (2 of 6) [CW-14599/2021] Entry/Meteorology Entry for courses commencing in July, 2021. In the column pertaining to AFCAT entry for the Ground Duty (Non- Technical) Administration & Education Branch, Permanent Commission (PC) for Men & Short Service Commission (SSC) for Men & Women indicated vacancies for Administration as PC - 23, SSC - 16, for NCC Special Entry, 10% seats out of AFCAT vacancies for SCC.
It is inter alia indicated that the petitioner being eligible for the post of Ground Duty (Non-Technical) Administration - SCC, applied and went through the entire process of recruitment. The petitioner was initially ousted for being medically unfit, however, on appeal she was declared medically fit by the Appeal Medical Board. However, in the final merit list, petitioner's name did not find place and out of 16 candidates, only 03 women were selected. The petitioner filed application under Right to Information Act seeking final cut off as well as marks obtained by her and ultimately the petitioner received a response to her application, wherein, it was indicated that the cut off for the course in which petitioner has applied was 536 for men and 613 for women and that the petitioner had secured 599 marks.
It is submitted by learned counsel for the petitioner that the action of the respondents amounts to wholesome discrimination against the petitioner inasmuch as common vacancies for men & women were advertised and while declaring the result, information thereof was provided to the petitioner in reply to the Right to Information Act, different cut off has been indicated for Admin. SCC (Men) at 536 and Admin. SCC (Women) at 613 and though the petitioner had obtained marks higher than the cut off meant for men i.e. 599, non-inclusion of her name in the list of selected (Downloaded on 03/03/2022 at 08:29:15 PM) (3 of 6) [CW-14599/2021] candidates cannot be sustained and, therefore, the petition filed by the petitioner deserves to be allowed and the respondents be directed to include the name of the petitioner in the list of selected candidates.
A response to the writ petition has been filed by the respondents inter alia indicating that the name of the petitioner figured at serial no. 15 and that there were only two vacancies for Admin. - SCC (Women), the branch she applied for and eligible. As the petitioner was low in merit, her name did not figure in the final merit list of candidates selected to join the training academy and even within the women candidates, two more candidates were above her.
Submissions have been made that name of one Ms. Tanvi Nara figured in the final merit list based on the reservation of 10% vacancies for NCC Air Wing 'C' Certificate holder and it was emphasized by learned counsel for the respondents that in the advertisement itself there was a disclaimer inter alia indicating that the actual intake would depend on organizational requirements, various cadre control mechanisms, availability of training slots and actual number of vacancies.
Submissions were made that though 16 posts for SSC - M & W were indicated in the advertisement, the Board recommended 14 vacancies for men & 02 for women in Admin. Branch and that one vacancy in Admin. SCC be given to women NCC 'C' Certificate holder, based on which the final select list was issued.
Submissions were made that the vacancies were distributed between men & women based on the organizational requirement and as such different cut off for men & women were issued and though the petitioner obtained marks higher than the cut off (Downloaded on 03/03/2022 at 08:29:15 PM) (4 of 6) [CW-14599/2021] meant for men, in view of the fact that only two vacancies for women were available and cut off meant for women was higher than the petitioner's marks, she could not make it to the select list and, therefore, the petition deserves to be dismissed.
Under the directions of the Court dated 27/1/2022, learned counsel for the respondents was directed to produce the material to indicate that the respondents had determined the vacancies for Ground Duty (Technical & Non-Technical) Branches for Men & Women before the declaration of final merit list (Annex.3). Learned counsel for the respondents has produced for perusal of the Court the note-sheets pertaining to the recruitment.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record and produced for perusal of the Court.
As noticed hereinbefore, the vacancies indicated for Ground Duty (Non-Technical) (Administration & Education) for SSC were 16 and they were meant for both Men & Women. The important disclaimer just below the vacancies indicated, reads as under:
"Disclaimer.-Vacancies indicated are tentative and subject to change without notice. Actual intake would depend on organizational requirements, various cadre control mechanisms, availability of training slots and actual number of vacancies accruing in Jul 2021. No representation in this regard will be entertained."
The disclaimer indicates that the actual intake would depend on organizational requirements, various cadre control mechanisms, availability of training slots and actual number of vacancies accruing in July, 2021. Based on the vacancies indicated in the advertisement, the recruitment process was undertaken and finally the result was declared, wherein, for 14 posts men were selected and for 02 posts women were selected and one post (Downloaded on 03/03/2022 at 08:29:15 PM) (5 of 6) [CW-14599/2021] which was for NCC 'C' Certificate holder, on the said post also woman was selected.
Going by the plain reading of only the vacancies as indicated in the advertisement, the same prima facie gives an impression that the cadre of SSC for men and women is common and as such the grievance raised by the petitioner on first blush appears to be justified, however, based on the disclaimer indicated therein and further material produced by way of note-sheets, it is clear that based on the organizational requirements, the Board for preparation of merit list for courses assembled on 3/8/2021 and on subsequent dates for allocation of branch to the candidates of AFCAT 02/2020 and planned that call letters for SSC be issued to 14 men and 03 women including 01 for NCC 'C' Certificate, which was accorded reservation. Once the competent authority i.e. the Board, based on the available material and organizational requirement etc., as indicated in the disclaimer, had come to the conclusion that 14 posts were to be filled up by men and 02 by women, the ultimate issuance of merit list, apparently, cannot be faulted.
Learned counsel for the petitioner attempted to make submission that the action of the respondents in this regard is not justified, however, the submission made cannot be countenanced inasmuch as the competent authority has taken a conscious decision based on its requirement, which possibly cannot be made subject matter of challenge.
In view of the above discussion, as the petitioner did not obtain marks higher than the cut off meant for SSC women and only two posts were determined by the respondents for women (Downloaded on 03/03/2022 at 08:29:15 PM) (6 of 6) [CW-14599/2021] out of 16 vacancies advertised cannot be faulted, no case for interference is made out in the petition.
Consequently, the writ petition filed by the petitioner has no substance and the same is, therefore, dismissed.
(ARUN BHANSALI),J 185-baweja/-
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