Delhi High Court
Vinod Bhandkoliya vs Union Of India And Ors. on 3 October, 2018
Equivalent citations: AIRONLINE 2018 DEL 2525
Author: Hima Kohli
Bench: Hima Kohli, Rekha Palli
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8571/2015
VINOD BHANDKOLIYA ..... Petitioner
Through: Mr.Anuj Aggarwal, Adv .
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms.Sunieta Ojha with Mr.Talish Ray,
Advs.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 03.10.2018
1. The petitioner has filed the present writ petition seeking directions to the respondent no.3/Staff Selection Commission (SSC) to issue him a letter, for selecting him to the post of Constable (GD) in the CAPF or the post of Rifleman (GD) in the Assam Rifles.
2. The brief facts of the case are that in February, 2012, the respondent no.3/SSC had issued an advertisement inviting applications for recruitment to the post of Constable (GD) in the CAPF and Rifleman (GD) in the Assam Rifles. The petitioner had applied for the said posts in the OBC category from Madhya Pradesh. In March, 2012, the petitioner was called for a Physical Efficiency Test wherein he was found fit. On 22.04.2012, the petitioner appeared in the written examination which he duly qualified by WP (C) No.8571/2015 Page 1 of 8 obtaining 62 marks, which was more than the cut off marks obtained by the last selected candidate from Madhya Pradesh in the OBC category i.e. 61 marks.
3. After qualifying the written examination, the petitioner was called for his medical examination on 06.08.2012 wherein he was declared medically unfit. As all candidates including the petitioner who were declared unfit had an option of preferring an appeal by seeking a Review Medical Board, the petitioner exercised the said option and preferred an appeal against the findings of the Medical Board. While the petitioner's application for appearing before a Review Medical Board to be constituted by the respondents was pending, the respondents proceeded to declare the result of the examination and issued a select list on 17.10.2012 wherein, the petitioner's name did not feature. It transpires that thereafter, the petitioner had appeared before the Review Medical Board on 21.05.2013 and was declared medically fit.
4. The grievance of the petitioner is that despite obtaining more marks than the cut off marks fixed for the OBC category from Madhya Pradesh and despite having been declared medically fit, he has not been given the benefit of selection on the ground that he had failed to properly indicate his force preference. In other words, while filling the form, the petitioner had only indicated his force preference as 'A' instead of filling all his options in the order of preference which included 'A' 'B', 'C', 'D', 'E' and 'F' that stand for 'A'-BSF, 'B'-CISF, 'C'-CRPF, 'D'- SSB, 'E'-ITBP and 'F'-Assam Rifles.
5. The submission of the counsel for the petitioner is that though WP (C) No.8571/2015 Page 2 of 8 the petitioner was medically examined by the Review Medical Board on 21.05.2013, the results of the Review Medical Board were declared only on 30.01.2014 and till then, he was kept in the dark. Thus, even though the cause of action had arisen in the present case for the first time on 30.01.2014, the petitioner did not seek legal recourse till September, 2015, when he preferred the present petition. The petitioner took another one year and eight months to file the present petition.
6. Learned counsel for the petitioner places reliance on two decisions of this Court in support of his contention that mere non- filing of other preferences, could not be a ground not to select him for a post as per his merit. The first decision relied upon by learned counsel for the petitioner is dated 14.07.2014, in a batch of writ petitions, lead matter being W.P.(C) No.5336/2013 entitled Deepak Kumar Singh & Ors. vs. Union of India & Ors., where the Court was examining the grievance with regard to appointment to the post of Constable (GD) conducted by the Staff Selection Commission for the recruitment year 2011. The second decision cited by learned counsel for the petitioner is dated 14.12.2012, passed in W.P.(C) No.7651/2012 entitled Vinay Kumar vs. Union of India & Ors., which refers to the examination conducted by the SSC, again for the post of Constable (GD) in the recruitment year 2011.
7. Learned counsel submits that just as the petitioners in the judgment dated 14.07.2014, had given an unconditional undertaking to the effect that they shall not claim any seniority or consequential benefits in respect of those who have been placed in the select list or WP (C) No.8571/2015 Page 3 of 8 the reserve list in the 2011 recruitment year, if appointed, the petitioner herein is also willing to give a similar undertaking that he shall not claim any seniority or consequential benefits in respect of those placed in the select list or the reserve list for the 2012 examination.
8. Per contra, Ms.Ojha, learned counsel for the respondents opposes the present petition and states that the select list was prepared as per merit cum preference for state-wise vacancies and the reserve list was prepared as per merit or preference on an All India Basis. In the present case, the select list of all the candidates recommended for the appointment in the state-wise vacancies was notified on 17.10.2012 and since the petitioner was declared unfit in the first medical examination conducted on 06.08.2012, it was not possible to consider his candidature for the select list. She submits that after the petitioner was declared unfit, he had preferred an appeal against the findings of the Medical Board and was called for the Review Medical Board that was conducted on 31.05.2013 wherein he was declared medically fit but, by then, the first and the second reserve lists had both been declared.
9. Learned counsel for the respondents submits that the cut off marks in the reserve list are ordinarily higher than the cut off marks in the initial select list. As a result, even though candidates lower in merit list than the petitioner had got appointed by virtue of their names being included in the select list, but the same having been notified before declaration of the result of the Review Medical Board, the respondents cannot be faulted for candidates with WP (C) No.8571/2015 Page 4 of 8 higher marks being left out. It is due to the aforesaid procedure adopted by the respondents that the petitioner could not qualify in the reserve list though he had secured higher marks than the last selected candidate in the OBC category in the select list for Assam Rifles and ITBP, which had not even been filled up by him as his preference, in terms of column 16 of the Notice of Examination issued by the respondents.
10. Learned counsel for the respondents also draws the attention of the Court to para 4.5 of the counter affidavit wherein it has been averred that the petitioner was allotted OBC category under the State Code 20 i.e. Madhya Pradesh and in his application form, he had opted for only one post preference 'A' i.e. for BSF and had obtained 62 marks in the written examination. The last selected candidate in the BSF from the State of Madhya Pradesh in the OBC category had obtained 64 marks and since the petitioner had obtained lesser marks than the cut off marks prescribed for BSF, he was not selected for his only preference in the BSF. The details of the cut off marks obtained by the last selected candidate in the OBC category on a force-wise basis in the State of Madhya Pradesh, both in the select list and the reserve list are extracted as below:-
Category A-BSF B-CISF C-CRPF D-SSB E-ITBP F-Assam OBC Rifle Madhya 64 68 62 64 61 61 Pradesh WP (C) No.8571/2015 Page 5 of 8 Category A-BSF B-CISF C-CRPF D-SSB E-ITBP F-Assam OBC Rifle Madhya -- 85 81 83 80 --
Pradesh
11. It is thus contended by learned counsel for the respondents that since the petitioner had opted only for one post preference 'A', at the time of preparation of the select list, he was not considered for other posts which were not his preferences. He, however, could not make the mark for any of the forces when the reserve list was prepared as the cut off marks had been enhanced by the respondents in the said list prepared on an All India basis.
12. Having considered the aforesaid submissions and on perusing the records, we find that as a result of the procedure adopted by the respondents for the subject examination, of people who are lower in merit have been selected at the end of the recruitment process rather than those who are higher in merit, in terms of the marks secured by them. In our view, once the department had given an option to the petitioner and other candidates to file an appeal against the findings of the Medical Board, there was no good reason for them to declare the select list without awaiting the result of the Review Medical Board.
Had the said procedure for holding of a review medical examination been properly followed, then the respondents ought to have waited till after January, 2014 to declare the results of the select list. It is undisputed that by the time the petitioner was declared medically fit WP (C) No.8571/2015 Page 6 of 8 by the Review Medical Board on 31.01.2014, all was over, inasmuch as the respondents had not only declared the select list on 17.10.2012, but had also declared the Reserve list-1 and Reserve list-2, by 19.11.2012, thus leaving him and many other similarly situated persons, high and dry.
13. We are therefore, of the opinion that the respondents have erred in declaring the select list before finalising the results of the petitioner and other similarly placed candidates who had preferred appeals against the findings of the medical board and sought examination by a Review Medical Board. In all fairness, till the result of the Review Medical Board was declared, the respondents should have stayed their hands viz a viz declaration of the final result.
14. We may also note that column 16 of the Notice of Admission, on which reliance has been placed by counsel for the respondents, only asks candidates to carefully indicate their preferences for the posts in various forces. It does not in any way, stipulate that a candidate who has not properly indicated his preferences, will not be considered for appointment to any post, irrespective of his merit, as is sought to be contended by learned counsel for the respondents. On the contrary, we are of the opinion that a candidate who has failed to indicate his preferences, would still be entitled to be considered for appointment on the basis of his merit petition.
15. In view of the aforesaid facts and circumstances, it is deemed appropriate to direct the respondent no.3/SSC to include the petitioner in the list of the selected candidates by placing his name at the end of the select list and the Reserve list-1 and 2, for the recruitment for the WP (C) No.8571/2015 Page 7 of 8 year 2012, but before the names of those candidates who are selected for the same post, in the subsequent selection process. The petitioner shall, thereafter, be assigned a force commensurate with the marks secured by him. Before the aforesaid exercise is carried out by the respondents, the petitioner shall first file an undertaking within two weeks, as noted above, declaring inter alia that he shall not claim seniority or any other consequential benefits viz-a-viz those candidates who have been placed either in the select list or in the reserve list for the 2012 recruitment. Further, he shall not claim any back-wages till the date of his actual appointment. The said undertaking shall be filed with a copy to the counsel for the respondents who shall take necessary steps as ordered above, within eight weeks from the date of receipt of the undertaking.
16. It is however made clear that the appointment of the petitioner shall be subject to his fulfilling all the eligibility conditions as stated in Clause 10 of the note published along with declaration of the results by the respondent no.3/SSC on 17.10.2012
17. The writ petition is allowed in the above terms with no order as to costs.
HIMA KOHLI, J REKHA PALLI, J OCTOBER 03, 2018 gm WP (C) No.8571/2015 Page 8 of 8