Gauhati High Court
Mahendra Sutradhar And 76 Ors vs The Union Of India And 2 Ors on 11 June, 2019
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010010412014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2749/2014
1:MAHENDRA SUTRADHAR and 76 ORS
S/O NARENDRA SUTRADHAR R/O VILL- KARERTAL P.O. BHATKUCHI, P.S.
BARPETA DIST. BARPETA, ASSAM.
VERSUS
1:THE UNION OF INDIA and 2 ORS
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-1.
Advocate for the Petitioner : MR.B K MAHAJAN
Advocate for the Respondent : MRS. A GAYAN, CGC
BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA Date : 11-06-2019 JUDGMENT AND ORDER (CAV) Heard Mr. K. R. Patgiri, learned counsel for the petitioners and Ms. A. Gayan, learned C.G.C. appearing for the respondents.
2) By this application under Article 226 of the Constitution of India the petitioners Page No.# 2/11 have sought for setting aside and quashing the final selection list for appointment as Constables (General Duty) in Indo-Tibetan Border Police Force (ITBPF), Border Security Force (BSF), Central Industrial Security Force (CISF), Central Reserve Police Force (CRPF) and Sashastra Seema Bal (SSB) and Rifleman (General Duty) in Assam Rifles for Assam Zone. The petitioners are also seeking a direction for appointment of the petitioners in their respective preferential options or any other vacancies. The petitioners have also prayed for a direction to the respondents to cause an enquiry into the issue of preparation of the final selection list and to review the same.
3) The learned counsel for the petitioner has submitted that by an advertisement published in the Employment News dated 15.12.2012, applications were invited for filling up of various vacancies in the above referred forces wherein it was mentioned that there were total 2608 vacancies out of which 419 vacancies were for the State of Assam and it was mentioned that there were 81 vacancies allocated for Assam in respect of Constable (GD) male/ female of B.G. District of Central Armed Police Force (CAPF) and Assam Rifles. The recruitment process, cut-off marks for various categories etc., were indicated in the said advertisement. It was also indicated that those candidates who were declared unfit in the medical examination could appeal for being re-examined by a Review Medical Board and the candidates who meet the valid criteria were to be placed in the reserved list. It was also indicated that the persons who were in the reserved list would be appointed only against vacancies that remained after appointment of candidates from the main select list. It is further submitted that in the present case in hand even before communication of the final select list, a Review Medical Board was held and without preparing a reserved list of candidates who had cleared the Review Medical Board, their names were included in the main selection list.
4) The learned counsel for the petitioners has further submitted that several candidates who had secured marks lesser than the petitioners have also been appointed and in this connection he has referred to a chart given in the writ petition containing the list of the petitioners, their respective caste and the marks obtained. It is also submitted that in the employment advertisement it was mentioned that with the approval of the Ministry of Home Affairs, the respondent authorities had the discretion to divert candidates from surplus States Page No.# 3/11 to deficit States after accommodating all available candidates in such deficit States. In this connection it is submitted that as per the information collected by the petitioners, there are about 748 posts vacant in the neighbouring State of Arunachal Pradesh and, as such, as per the conditions mentioned in the advertisement, the respondents could have placed the petitioners as surplus candidates from the State of Assam to the State of Arunachal Pradesh and that by not doing so, the petitioners have been discriminated against. It is also submitted that for the purpose of such diversion there was no transparent policy and that the authorities were exercising their discretion arbitrarily and on pick and choose basis.
5) It is further submitted that the manner of selection was arbitrary, irregular, capricious and highly illegal. It is submitted that altogether they were 589 vacancies/ posts for the State of Assam, but from the selection list it could be seen that the respondents had filled up only 370 vacancies and, as such, the learned counsel for the petitioner submits that the respondent authorities should be directed to appoint the petitioners in 748 vacant posts for the State of Arunachal Pradesh or in the 119 vacant posts which have remained unfilled in the State of Assam.
6) The learned counsel for the petitioners has submitted that though there existed large number of vacancies, instead of accommodating the petitioners, they apprehend that the respondents may fill up the large number of vacancies by their near and dear ones in a whimsical manner and on pick and choose basis.
7) It is further submitted that as per para - 8 (III) (vi) and (vii) of the advertisement, candidates who were found fit on appeal by the Appeal Panel (Review Medical Board) and those who meet the merit criteria fixed by the Commission for final selection were to be placed in the reserved list. Therefore, by illegally enlisting such candidates in the select list, the respondent had given a go bye to such prescribed procedure, which amounted to the rules of the game being changed after the game was played. Hence, it is submitted that the select list was required to be interfered with and the petitioners were entitled to all the reliefs as prayed for.
8) In support of his submissions the learned counsel for the petitioner has relied on the following cases viz., (1) Jitendra Kumar Singh Vs. State of UP, (2010) 3 SCC 119; (2) Page No.# 4/11 Hemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11; (3) K. Manjusree Vs. State of Andhra Pradesh, (2008) 3 SCC 512; and (4) Satam Jiten Singh Vs. Manipur Public Service Commission 2012 (2) GLT 893 (DB).
9) Per contra, the learned CGC has referred to the affidavit-in-opposition filed by the respondents and it is submitted that the advertisement published on 15.12.2012 was for filing up various vacancies in the posts of Constable (GD) in ITBP, BSF, CISF, SSB and Rifleman (GD) in Assam Rifles and that the petitioners were candidates for the post of Constable (GD) and Rifle Man in Assam Rifles Examination, 2013. It is submitted that it is specifically stated in the affidavit-in-opposition that the petitioners had obtained less marks than the cut-off marks in their respective category and that some of the candidates had obtained marks equal to the cut-off marks. Therefore, some of the petitioners were not selected as they had obtained less than the cut-off marks and that in cases where some of the petitioners had obtained marks equal to the cut-off marks and there was a tie with other candidates obtaining equal marks and therefore, on consideration of marks obtained in Part-A or date of birth criteria, in such cases, the candidates obtaining higher marks in Part-A and older candidates with identical marks got the preference. She has further submitted that although the petitioners had alleged that the candidates obtaining lesser marks had been selected, but such allegation was not true. It is submitted that the selection of candidates alleged to have obtained lesser marks than the petitioners have not been challenged in the present writ petition and moreover, the petitioners have not identified even one of such wrongly selected candidates.
10) It is submitted that though 33% and 35% were given as the cut-off percentage marks in the notice for qualifying the written examination, but the same was not the final cut- off marks, which are different for different State CAPFs and different categories within each CAPF for Border/ Non-border Districts and Naxal/ Militancy affected Districts. It is submitted that as per the procedure, in case a candidate is not getting selected for his opted preference, such candidate is considered for all other CAPFs in the default order of preference as ABCDEF i.e. order of preference in the notice.
11) The learned CGC further submits that there was no change in the rule of game after the game was played as alleged by the petitioners. It is submitted that pursuant to the Page No.# 5/11 order dated 14.02.2012 passed by the Delhi High Court in WP(C) 7651/2012- Vinay Kumar Vs. Union of India & others, it was directed that in the select list, names of all candidates were to be included in order of merit including the candidates who were initially declared unfit but were later on declared fit at the Review Medical Board, by further directing that all such candidates would also be entitled to their seniority as per their merit position and all consequential benefits save and except wages, which need not be paid till they join service. Hence, it is submitted that candidates declared fit in the Review Medical Examination were considered for inclusion in select list based on merit cum option from the year 2011 onwards. The provision of the advertisement of placing in the reserved list, candidates declared fit in Review Medical Examination and who meet the criteria, was done away with in compliance of the directions of the said Delhi High Court order. Subsequently, it was advised by the Ministry of Home Affairs vide letter dated 03.03.2013 to declare final result only after Review Medical Examination is conducted from the vacancy year 2013-14 onwards. Hence, a single select list has been issued for Constable (GD) and Rifleman in Assam Rifles 2013 Examination. It is further submitted that as the action taken was in compliance of and in accordance with the said order passed by the Delhi High Court, the respondents cannot be accused of changing the rules of the game as they were bound by the said order.
12) It is further submitted that in the present case, the employment advertisement had clearly spelt out that the respondents had the discretion to divert candidates from surplus States after accommodating all available candidates in such deficit States subject to category wise reservation being maintained. However, the Ministry of Home Affairs had taken a policy decision that the unfilled vacancies in the State of Jammu and Kashmir, all the North Eastern States, and Naxal/ militancy affected States were not to be filled up with candidates from surplus states and Union Territories. Accordingly, no vacancies in the deficit State of Arunachal Pradesh had been filled up by the respondents, which had resulted in high vacancy being shown for the said State. It has been submitted that the petitioners have not been able to give any instance that the respondents had diverted any candidate from surplus State to the State of Jammu and Kashmir, all the North Eastern States, and Naxal/ militancy affected States including the deficit State of Arunachal Pradesh and no such alleged appointment has been assailed in this writ petition. It is submitted that even otherwise, in view of the fact that Page No.# 6/11 the vacancies were State-wise, the petitioners were not entitled to claim appointment in another State on obtaining more marks than the lowest marks obtained by a candidate in another State.
13) It is further submitted that the respondents have disclosed the lowest marks for categories of candidates in the write-up of result declared on 30.05.2014, which was then uploaded in the official website of www.ssc.nic.in. By referring to the statement made in para-12 of the affidavit-in-opposition, it is submitted that all the SC category of petitioners had obtained less marks than that of last selected SC candidate in Assam except one Abani Das (Petitioner No.10), who had secured 46 marks and was selected in ITBP as he had obtained the cut-off marks. Similarly, all ST category petitioners had obtained less marks than that of last selected ST candidate in Assam except Haitha Daimari (Petitioner No.18), Dibeswar Boro (Petitioner No.20) and Amit Ngate (Petitioner No.22) who had secured 47 marks and therefore, as there was a tie of these petitioners with others, owing to comparative lower marks in Part-A, the petitioner Nos.18, 20 and 22 were not selected as they had obtained 13, 17 and 19 marks in Part-A, whereas the last selected ST candidate had secured 21 marks in Part-A. Similar was the case of Nirmal Singh (petitioner No.34), Sourabh Das (petitioner No.38), Mukesh Kumar (petitioner No.52), and Devendra Nath Roy (petitioner No.67) who were OBC candidates and had secured 47 marks and, as such, there was a tie of these candidates and having secured comparatively higher marks in Part-A, the petitioner No.67 was selected in ITBP and Nirmal Singh and Mukesh Kumar, having obtained 15 and 14 marks respectively in Part-A and the last OBC candidate in ITBP had secured 17 marks in Part-A and could not be selected. Sri Sourav Das (petitioner No.38) was not selected because of the age criteria and as the date of birth of one Rahul Saikia was 31.12.1991, he was found older than the petitioner No.38 whose date of birth was 01.01.1992. It is submitted that in respect of Mahibul Islam (petitioner No.17), he was a unreserved candidate and had obtained 48 marks, which was the cut-off mark for unreserved candidate in ITBP, but as there was a tie and he was found to have obtained 13 marks in Part-A, he could not be selected as the Part-A marks obtained by the last selected candidates in unreserved category in ITBP was 15. It is further submitted that except for post reserved for ex-servicemen, there are no unfilled vacancies in any category in any CAPFs in Assam, for which the petitioners are not entitled to Page No.# 7/11 appointment to any CAPFs due to lack of vacancy. Hence, it is submitted that there was no illegality or arbitrariness in the selection process, which was done in a fair manner and that none of the appointment made was vitiated by any pick and choose policy or was done on whims and fancies of any member of the Selection Committee/Board and, as such, it is submitted that the present writ petition be dismissed.
14) It is seen that as per the case projected by the petitioners, 2608 vacancies were advertised to be filled up. Out of these vacancies, 419 vacancies were for the State of Assam and it was mentioned that there were 81 vacancies allocated for Assam in respect of Constable (GD) male/ female of B.G. District of Central Armed Police Force (CAPF) and Assam Rifles. The result of medical test of all eligible candidates has been annexed to this writ petition as Annexure-C series, which shows that the petitioners are aware of the results of the medical test and moreover, it is not the grievance of the petitioners were not treated at par while other candidates who had failed in first medical test were allowed to appear before Appeal Panel (Review Medical Board). In their affidavit- in- opposition, the respondents had disclosed the reason that they were obeying the order dated 14.02.2012 passed by the Delhi High Court in WP(C) 7651/2012- Vinay Kumar Vs. Union of India & others , while declaring the final result only after Review Medical Examination. The relevant portion of the said judgment and order by the Division Bench is quoted below:-
"17. We dispose of the writ petition directing the respondents to revise the list dated November 28, 2011 and include in the said list the names of all candidates, in order of merit obtained, who were initially declared unfit but were later on declared fit at the Review Medical Board. All those who have qualified for selection in order of merit, which of necessity would include the petitioner would be issued letters offering appointment keeping in view their merit position and the force opted for. This would mean that the letter offering appointment would take into account the merit position and the option by a candidate.
18. We are issuing a general mandamus because experience have shown to us that whenever in the past a correction has been directed to be made good with respect to one person, the Court is flooded with a spate of writ petitions. Not that our only desire is to save precious judicial time, but even on principles of law we would be justified in issuing a general mandamus.
19. Where a wrong is found to be in rem by a public authority, it would be expected that the authority would take remedial action in rem and not with respect to a single individual. If a selection procedure is found to be contaminated, the benefit of decontamination must ensure to all.
20. Compliance be made with the mandamus issued within eight weeks from today and Page No.# 8/11 needless to state all those who would be issued letters offering appointment would be entitle to their seniority as per their merit positions and all consequential benefits save and except wages, which need not be paid till they join service."
15) Therefore, in the opinion of this Court, this is not a case where the rules of game was changed after the game was played, because of the fact that the petitioners cannot be said to have suffered any prejudice because the respondents have been able to successfully demonstrated that they had published a common list containing names of fit candidates and those candidates who were subsequently declared to be fit in Review Medical Examination in compliance of the judgment and order passed by the Delhi High Court. Thus, this Court finds no infirmity in such action, save and except that the respondents ought to have indicated the same in the employment advertisement. Nonetheless, that alone would not be sufficient to strike down the entire selection list. Therefore, if the petitioners are aggrieved by the said action of the respondents the remedy of the petitioners may lie elsewhere and before such appropriate forum as the petitioners may be so advised. Hence, this ground for challenging the selection list is not found sustainable. As the actions of the respondents is shown to be actuated by a judicial pronouncement, the cited cases of (1) Jitendra Kumar Singh Vs. State of UP, (2010) 3 SCC 119; (2) Hemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11; (3) K. Manjusree Vs. State of Andhra Pradesh, (2008) 3 SCC 512 are found distinguishable on facts and are found to not apply on the facts of this case in hand.
16) The other two grounds of challenge in this writ petition are (i) that the reservation policy was not followed, and (ii) that the respondents were required to divert the petitioners from Assam, which was a surplus State for appointment in the State of Arunachal Pradesh, which was a deficit State. In respect of the allegation of reservation policy not being followed, it is seen that the respondents have been able to demonstrate that save and except petitioner No.10, who was petitioner, an ST candidate and he was selected and appointed in ITBP, none of the petitioners could be selected owing to their age criteria and/or their respective combined total marks including Part-A marks in case of tie. Moreover, in light of the specific stand by the respondents that the Ministry of Home Affairs had taken a policy decision that the unfilled vacancies in (i) the State of Jammu and Kashmir, (ii) all the North Page No.# 9/11 Eastern States, and (iii) Naxal/ militancy affected States were not to be filled up with candidates from surplus States and Union Territories and accordingly, no vacancies in the deficit State of Arunachal Pradesh had been filled up by the respondents, and that as the vacancies were State-wise, the petitioners were not entitled to claim appointment in another State on obtaining more marks than the lowest marks obtained by a candidate in another State, coupled with the fact that the petitioners have not been able to give any instance that the respondents had diverted any candidate from surplus State to the deficit State of Arunachal Pradesh. Hence, the challenge made against the selection process by the petitioners on the said two grounds urged by the learned Counsel for the petitioners is not found sustainable.
17) The learned counsel for the petitioner by citing the case of Sapam Jiten Singh (supra), had stressed that when selection process was under challenge, it was not necessary for impleading successful candidates. On a perusal of the facts of the said cited case, it is seen that this Court had found that there was gross irregularity in the selection process. The pages of various booklets were missing and few questions were not found printed in the booklet. This Court had also found that wrong answers were provided in key answers. This Court also found that few questions were copied and pasted en-bloc from a particular website which was indicted in the judgment. Some pages of the booklet were found manually pasted instead of pages 23 and 24, pages 25 and 26 were found in two sets in some booklets. Therefore, the learned Single Judge of this Court had refused to quash the selection process and instead issued certain directions to the Manipur Public Service Commission. The judgment by the learned Single was challenged by way of intra-Court appeal and the Division Bench of this Court, having recorded the irregularity in the examination process, refused to interfere with the judgment of the learned Single Judge, amongst others, the ground that only 11 out of 1300 candidates participating in the preliminary examination had approached this Court and 750 candidates had been declared successful, was an aspect which cannot be disregarded. Same principle is found to apply in this present case in hand. It is generally known that for recruitment in CAPFs, many thousands of candidates appear in each selection process and in this case the petitioners have projected that 2608 vacancies were advertised and out of such vacancies, 419 vacancies were for the State of Assam and it was mentioned Page No.# 10/11 that there were 81 vacancies allocated for Assam in respect of Constable (GD) male/ female of B.G. District of Central Armed Police Force (CAPF) and Assam Rifles. However, only 77 candidates, forming miniscule part of unsuccessful candidates appearing in the process have assailed the selection process. Therefore, being bound by the ratio laid down in the case of Sapam Jiten Singh (supra), must consider the said aspect also. Accordingly, this Court is of the view that if the selection process is interfered with, the large number of appointees would be adversely affected, many of whom may not have opted for being selected for appointment in Assam Rifles, for which the petitioners were also the job aspirants.
18) Moreover, this is not a case of large scale anomaly in the examination process, but the specific case of the petitioners is that the reservation policy was not followed, the result of candidates who were found unfit by Medical Board were allowed Review Medical Examination and were selected and that the petitioners could have been appointed in the State of Arunachal Pradesh. Thus, if anyone was selected and appointed while denying similar benefits to the petitioners, then in the opinion of this Court, the petitioners were required to assail those particular appointments. As this Court does not find any irregularity in the conduct of examination, if the petitioner was aggrieved by any particular appointment, the affected party must be impleaded in the writ petition. The well established principle that if selection process was vitiated by irregularity the selected candidates need not be made parties, as reiterated in the case of Sapam Jiten Singh (supra), has no applicability under the facts of this case. Thus, this Court is of the opinion that the present writ petition suffers from non- joinder of necessary parties and this writ petition is dismissed on this count also.
19) Before parting with the records, this Court finds it surprising that the petitioner No.10 has joined in this writ petition despite the respondents claiming that he has been appointed in the ITBP. The said stand of the respondents in paragraph 12 of their affidavit- in- opposition has not been denied in the affidavit - in- reply filed by the petitioners. As the writ petition is being dismissed, the issue as to whether all the petitioners are litigating for a common interest is not been gone into.
20) Thus, in view of the discussions above, the writ petition fails and is dismissed.
Page No.# 11/11 Consequently, the Rule stand discharged, however, without cost.
JUDGE Comparing Assistant