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Delhi High Court - Orders

Staff Selection Commission vs Gurpreet Singh on 7 December, 2022

Author: V. Kameswar Rao

Bench: V. Kameswar Rao, Anoop Kumar Mendiratta

                           $~2
                           *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                           +     W.P.(C) 16355/2022, CM APPL. 51305/2022
                                 STAFF SELECTION COMMISSION
                                                                                  ..... Petitioner
                                                  Through: Ms. Nidhi Banga, Sr. Panel Counsel
                                                            with Mr. Nishant Kumar, Adv.

                                                     versus

                                 GURPREET SINGH
                                                                                       ..... Respondent
                                                     Through:     Mr. M. K. Bhardwaj, Adv.

                                 CORAM:
                                 HON'BLE MR. JUSTICE V. KAMESWAR RAO
                                 HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
                                              ORDER

% 07.12.2022

1. This petition has been filed by the Staff Selection Commission (hereinafter referred to as 'SSC') challenging the order dated April 28, 2022 passed by the Central Administrative Tribunal (hereinafter referred to as 'Tribunal') in O.A. 1021/2021 whereby the Tribunal has allowed the Original Application filed by the respondent herein and directed the petitioner to consider the candidature of respondent herein keeping in view his merit coupled with suitability for other post(s) in other department(s) in the order of his preference and pass appropriate orders.

2. It further directed, in case of appointment, the respondent shall be entitled to all consequential benefits and fixation of his seniority and pay, keeping in view the date from which his immediate junior in the merit position has been granted appointment by the concerned department.

3. The facts as noted from the record are that on May 16, 2017 a notification/advertisement was issued by the SSC for holding Combined Graduate Level Examination, 2017 (hereinafter referred to as 'CGLE'). The said examination was to be conducted to fill up various posts in various departments. The candidates were required to fill up the preference form for appointment on various posts in various departments in the prescribed format. The respondent herein had also applied and also filled up the requisite preference form. He opted for various posts in order of preference for example his first preference was to the post of Inspector in Central Excise (CGST) and thereafter to the post Inspector in Income Tax, Sub Inspector in CBI and so on. In all he has given 20 preferences.

4. The respondent participated in relevant examination process, i.e. TIER-I, TIER-II and TIER-III and was declared successful in the result published by the petitioner on November 15, 2019. He has secured 518.25 marks and on the basis of the said position he was allocated the service of his first preference, i.e., the post of Inspector in Central Excise (CGST) under SC category. The respondent's dossiers were sent to the concerned department i.e., CGSC. As required the respondent underwent a medical examination and was found to be suffering from 'Colour vision defect', in terms of letter dated September 12, 2020 of Dr. Ram Manohal Lohia Hospital (RML), New Delhi. Hence, unfit for the post of Inspector (CGST). The respondent preferred an appeal for medical re-examination. Even on re- medical examination, the opinion of the Board was the candidate has defective colour vision on Ishihara plates & EG Lantern test. The respondent was accordingly informed vide letter dated June 17, 2021 about cancellation of his candidature to the post of Inspector (CGST).

5. The grievance of the respondent before the Tribunal was that in view of his position in the merit list, he was offered the job/department as per his first preference and if he was found medically unfit for the said post, it was incumbent upon the petitioner to send his dossiers to the concerned department for which he has opted in order of preference for consideration of his candidature for appointment.

6. The petitioner, SSC, had contested the O.A. filed by the respondent by referring to the provisions of paragraph 11(A) of the notification inasmuch as the same contemplates change of option cannot be entertained. It was also the case of the petitioner/SSC that tentative vacancy position as of May 09, 2019 indicating the posts suitable/unsuitable for colour blind persons (as reported by user department) has been reflected.

7. The above stand of the petitioner was contested by the respondent by stating that with regard to the post in question i.e., Inspector (CGST), there was no remark, as to whether the person with colour blindness would be suitable or not. Hence, being unaware, he had opted the post of Inspector (CGST) as Preference No. I. This plea was contested by the SSC/petitioner by stating that on the basis of the remarks given at the end of the vacancy chart dated May 09, 2019 it was clearly mentioned that "no information available with SSC. Please contact user departments, if they are suitable for Colour Blind candidates or not". It is the submission of Mr. M. K. Bhardwaj, learned counsel for the respondent that such remark could not have been given by the SSC as onus to ensure that a candidate has informed choice, was the SCC, which was required to put in clear terms whether the colour blindness is a ground for disqualification in respect of a post/department.

8. The Tribunal in its conclusion has held that it is settled law that one who participate in the selection process is entitled to be considered in just and fair manner. The very purpose of seeking options is to consider the candidature of the selected person on the basis of merit position in the relevant selection process coupled with his or her eligibility/suitability for the said post. Nowhere in the relevant advertisement/notice, it is provided that if the candidate is recommended for the first preferred post, and he is not found eligible or suitable for the post concerned, in view of his height or medical fitness, etc., he/she will not be considered for the second or subsequent preferred post(s)/department(s). The Tribunal was of the view that it is not the case of the petitioner herein that the respondent's candidature has been considered for the remaining preferred post(s) depending upon his merit and suitability. It finally allowed the original application with directions which we have already reflected above.

9. Today, Ms. Nidhi Banga, learned counsel for the SSC has drawn our attention to the notification/advertisement issued by the SSC to contend that there is no provision or policy for the reallocation of the candidate whose candidature has been cancelled by User department itself on medical grounds. Further, the Tribunal has not appreciated the fact that the petitioner is a recruiting agency and its role ends when it forward dossiers of selected candidates to the concerned User Department for taking further necessary action with regard to their appointment, joining etc. She has highlighted, note 11(C) of the advertisement/notification of the examination which clearly states the following:

"Candidates are advised to make sure before opting for any category of post that they fulfil the requirements for Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:13.12.2022 10:42:26 that category. The physical measurements (Including vision test) for candidates will be conducted by the concerned Indenting departments and only those candidates who fulfil the specified physical requirements will be eligible for the respective posts. No request from candidates for allotting to any other service/category of post will be entertained by the commission if the nominated candidates fail to meet the physical requirements. Thus, the onus of fulfilling the eligibility criteria will exclusively be on the candidates opting for such posts.".

10. According to her, the above paragraph makes it clear to anyone applying that the onus of making sure that they are eligible for a particular post lies with the candidates themselves and that no request later on for allotting any other category will be entertained from candidates in case they fail to meet the requirement of the User departments.

11. She has also relied upon clause 13(II) of the advertisement/notification which reads as under:-

"II. The Commission will recommend the candidates in the Merit List on the basis of the aggregate marks obtained by the candidates in the written examination and preference exercised by the candidates during documents verification. Once the candidate has been given his/her first available preference, as per his/her merit, he/she will not be considered for any other options. Candidates are, therefore, advised to exercise preference in Application Form carefully. The option /preference once exercised by the Candidates will be treated as FINAL and IRREVERSIBLE. Subsequent request for change of allocation/service by candidates will not be entertained under any circumstances/reasons."

According to her, the above clause makes it clear that once a candidate has been given his or her first available preference as per his or Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:13.12.2022 10:42:26 her merit, he or she will not be consider for any other options. She submits that this stipulation is very clear and the respondent having been found unfit because of the colour vision, his case could not have been sent/considered by the petitioner in terms of his second/subsequent preferences. She also states that order of the Tribunal, if allowed to stand/continue, it will create wrong precedent and would lead to opening of a pandora box as similarly placed candidates of other examination conducted by the Commission would also demand re-allocation to departments of their choice. This in turn would have a cascading effect leading to multiple litigations all over the country. She submits that the result of the examination was declared almost three years back and it may not be possible for Commission to reopen the result of this examination at this stage when all vacancies might have been filled or carried forward to the 2018 cycle which is closed. She seeks the prayers as made in the petition.

12. On the other hand, Mr. Bhardwaj, learned counsel for the respondent would submit that the notification issued on May 09, 2019 does not stipulate that colour blindness is a disqualification for appointment as Inspector (CGST). According to him, the respondent did not had inform choice otherwise he would not have opted for post/department wherein the colour blindness is a disqualification. In fact, the SSC had put it to the candidate himself to find out from the user department whether colour blindness is a disqualification or not. It is not possible for a candidate to visit all the 20 user departments for which he intends to give preference only to find out whether colour blindness would be a disqualification or not. He highlights the fact that in subsequent advertisement, the SSC has come out clearly stipulating the posts/departments where colour blindness is not a Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:13.12.2022 10:42:26 disqualification/disqualification.

13. In other words, his submission is the SSC by bringing clarity to the information has accepted the fact that in the subject examination, it had not been able to provide to the candidates the correct/relevant information with regard to, whether the colour blindness is a disqualification or not. He states in the facts of this case, the Tribunal is justified in directing petitioner to consider the candidature of the respondent, keeping in view his merit for other post(s)/department(s) in the order of his preference and to pass appropriate orders. He seeks the dismissal of the writ petition.

14. Having heard the learned counsel for the parties the short issue which arises for consideration is whether the Tribunal was justified in allowing the Original Application, in the manner it did in the impugned judgment.

15. The said issue need to be looked at from the perspective, whether the SSC has given relevant information to a candidate to enable him to make a informed choice/preferences with regard to the post(s)/different department(s) for which the examination is being held. Insofar as the post of Inspector (CGST) is concerned, the SSC has left it to the candidate to ascertain from the user department whether a candidate with colour blindness is eligible for appointment or not. The plea of Mr. Bhardwaj that it is not possible for a candidate to go to twenty user departments to find out whether colour blindness is a disqualification or not, is appealing. It was required of SSC in consultation with the user department to specify in the advertisement, the medical conditions, suitable for appointment as they have stipulated in respect of physical standards, height, chest, vision, etc. This we say so because the said information shall be relevant for a candidate to give his preferences of posts/departments in seriatim, discarding those where a Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:13.12.2022 10:42:26 particular ailment/disability shall be a disqualification.

16. Surely, in the absence of relevant/correct information from the SSC, the respondent having appeared in the medical process and found to be unfit for colour blindness, resulting in disqualification has serious consequence / prejudice including effecting his appointment. The respondent having attained the merit and also his subsequent preferences are suitable, for colour blindness, he cannot be penalised for no fault of his. In fact, the plea of Mr. Bhardwaj that in the subsequent advertisement the SSC has in clear terms stipulated/indicated the departments, where colour blindness is suitable for appointment, also suggest the corrective steps taken by the SSC to enable a candidate opt for his preferences appropriately obviating the chances of being disqualified on medical ground.

17. Though, Ms. Banga relied upon the stipulation in the advertisement, more specifically, clause 13(II) which stipulates once a candidate has been given his/her first available preference as per his or her merit, he or she will not be considered for any other preference, the same has no applicability in the facts inasmuch as the said stipulation would hold good if the SSC has indicated/specified, the suitability or otherwise, of a person with colour blindness and still a candidate has opted for the said post/department and has been found unfit by the user department. That is not the case here. It is because of lack of information from the SSC that the respondent had given the first preference to the post of Inspector (CGST) for which post he was not found suitable.

18. Insofar as the reliance placed by Ms.Banga on clause 11(C) of advertisement that any appointment is subject to a candidate meeting the physical requirements is concerned, the same cannot be contested but Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:13.12.2022 10:42:26 keeping in view the facts of this case where the respondent did not have the relevant information that the colour blindness is a disqualification in the CGST, the respondent cannot be put in a disadvantageous position, whereby despite having merit he, cannot seek appointment as per his subsequent preferences. The same has the effect of denying him a fair opportunity. Insofar as the plea of Ms. Banga that there may not be any vacancy, now, in the user department where the respondent could be appointed, is concerned, it is not the case of the SSC that it has information that all the vacancies in the user departments as per the preferences of the respondent have been filled. If that be so, such a plea of Ms. Banga cannot be accepted. That apart, lack of vacancy cannot be a ground to deny appointment to the respondent. The wrong happened to the respondent need to be set right / rectified / answered by giving him the relief of right of consideration for appointment in the manner directed by the Tribunal. Hence, this plea is also unsustainable.

19. In view of our above discussion, in the peculiar facts of this case, we are of the view that the impugned judgment of the Tribunal requires no interference.

20. The petition is accordingly dismissed.

V. KAMESWAR RAO, J.

ANOOP KUMAR MENDIRATTA, J.

DECEMBER 07, 2022/ds Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:13.12.2022 10:42:26