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2009 DIGILAW 132 (GAU)

Randip Boro v. Union of India

2009-02-24

HRISHIKESH ROY

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. N. Deka, learned Counsel appearing for the Petitioner in W.P.(C) No. 3730/08. Mr. M. Phukan, learned Counsel represents the Petitioner in W.P.(C) No. 3692/08. They raise substantially common submissions on behalf of the two writ Petitioners. Mr. B. Pathak and Mr. D. Das, the learned Central Govt. Counsels have been heard on behalf of the Respondents. 2. The two Petitioners herein had offered their candidature for being considered for appointment to the post of Constables (General Duty), advertised by the CRPF authorities on 1.1.07. They applied against posts meant for Scheduled Tribe category candidates. It is not in dispute that both the Petitioners Randip Boro and Kartik Dewraja secured 43 marks in the selection process and that some candidates with 43 marks have been short listed and given appointment to the posts of constable. 3. For both the writ Petitioners, it is the third round of litigation. The first writ petition was filed by them raising a grievance of non-consideration of their candidature under the relaxed physical standards prescribed under the advertisement, as made applicable for Scheduled Tribe candidates applying from Assam. Candidates under relaxed criteria were to be considered on furnishing of a certificate, (hereinafter referred to as "Annexure-iii Certificate"), which was to be given by each candidate. This Court by the judgment and order dated 23.11.07 allowed the said writ petitions by permitting the concerned candidates to submit the Annexure-iii Certificate and the Respondents were directed to fix a fresh date for the purpose and on such submission of certificate by the stipulated date, the candidature under the relaxed physical Standards were to be considered. The second round of litigation was initiated by the Petitioners after the selection process, when the Petitioners learnt of the marks secured by them in the selection. When they found that they had secured 43 marks out of total 100 marks and have been denied appointments whereas some others who had secured similar 43 marks have been short listed for appointment, the writ petitions came to be filed. When they found that they had secured 43 marks out of total 100 marks and have been denied appointments whereas some others who had secured similar 43 marks have been short listed for appointment, the writ petitions came to be filed. This Court on examining records of selection found that the CRPF authorities, having found that 16 candidates had secured identical 43 marks and only 8 posts were to be filled up from amongst these 16 candidates securing 43 marks and since 91 candidates with higher marks have already been considered for appointment, decided to offer appointment for the 8 posts on the basis of age seniority, leaving out the youngest 8 candidates. Accordingly the Court held that no error has been committed in excluding the Petitioners from the select list. The Court also took the view that the yardstick of making a choice amongst candidates securing equal marks, on the basis of their age was a fair and transparent yardstick and accordingly the Court dismissed the writ petition, in the second round of litigation. 4. But, as the Petitioners could not be considered for appointment on the basis of age criteria, a third round of litigation is initiated by them through these petitions. In these cases, the Petitioners contend that in the advertisement dated 1.1.07, 136 posts of constable were advertised in the Scheduled Tribe category for the Assam State and only because 37 of the 136 advertised posts were excluded from the appointment process initiated through the advertisement dated 1.1.07, the Petitioners' right to secure appointment, notwithstanding the 43 marks scored by them have been adversely affected. Accordingly the decision of the Respondent authorities to leave out 37 out of 136 advertised posts in the Scheduled Tribe category, for making appointment initiated through the advertisement dt. 1.1.2007 is assailed by the Petitioners. 5. It is contended by Mr. N. Deka and Mr. M. Phukan, learned Counsels on behalf of the Petitioners that when the advertisement was for 136 posts, after the selection process started, the Respondents could not have reduced the number of available posts and since the Petitioners have been denied of an opportunity to secure appointment by such arbitrary decision of the Respondents, an appropriate direction be issued to secure the legal rights of the Petitioners to get appointment. 6. 6. The Petitioners also contend that even by a policy decision, to earmark some posts for rehabilitation of the Bodo Militants by absorbing them as constables in CRPF, the authorities could not have taken away the advertised posts, to ensure appointment of surrendered Bodo Militants in the CRPF. 7. It is also argued that exclusion of the relatively younger candidates by following the age criterion and choosing those who had secured the same marks but are older, has no statutory support and adoption of such principle being arbitrary the same should be interfered with by this Court. 8. On behalf of the CRPF authorities, it is contended by Mr. D. Das and Mr. B. Pathak that appointments are being offered to the selected candidates only on the basis of their respective merit and since several candidates in the Scheduled Tribe category had secured 43 marks, which was the cut off mark for candidates belonging to Scheduled Tribe category, the offer of appointment being given by comparing the respective age and preferring candidates with higher age is in consonance with the principles laid down under Rule 8 (f) of the CRPF Rules 1955 (hereinafter referred to as' 'the Rules). 9. It is also contended on behalf of the Respondents that since a policy decision to accommodate surrendered Bodo Militants of the Scheduled Tribe category, in the posts the constable under the CRPF were taken by the Central Govt., to make room for appointment of surrendered Militants, as part of the Central Govt. rehabilitation package, 37 posts were curved out from the 136 advertised posts and accordingly only 99 posts became available for recruitment. It is submitted that all the 99 posts have been filled up strictly on merit. 10. It is also pointed out on behalf of the Respondents that although 136 posts in the Scheduled Tribe category were advertised, it was clearly stipulated in the advertisement itself that the notified vacancy may vary for administrative reasons, and the Petitioners cannot claim that there cannot be any reduction of the 136 advertised posts and all posts should be filled up only on the basis of selection process initiated in pursuant to the advertisement dated 1.1.07. 11. 11. As regards the challenge to the decision of the CRPF authorities to apply the age criteria to offer appointment to candidate with same marks, I am of the opinion that as this Court has already examined the said criterion adopted by the Respondents and have held the same to be fair and transparent, interference of this Court is not called for with regard to the decision for adoption of such criteria by the Respondent. 12. It may also be noted that Rule 8 (f), which provides for adopting the age criteria in determining seniority of recruited constables, although strictly may not be applicable in matters of recruitment, the principle indicated therein, maybe reasonably followed by the CRPF authorities, to break the deadlock amongst candidates who are at par on marks, in order to make a choice amongst them, to give appointment in the limited number of vacancies, available for such appointment. 13. It is also beyond dispute that the selected candidate does not have any justifiable right to demand appointment, merely on the basis of selection. In the instant case, although 136 posts of constables in the Scheduled Tribe category were advertised, the Respondent authorities had also indicated in the advertisement that the number of posts may vary. Under such circumstances, the decision of the Respondents to reduce the number of posts, to accommodate the surrendered Bodo Militants, as part of the Govt. notified policy, cannot be said to be an arbitrary decision, justifying the interference of the writ Court. 14. It is also seen from the materials on record that the number of vacancies available for recruitment under the Scheduled Tribe category got reduced by 37, as ex-Bodo Militants belonging to Scheduled Tribe category, were to be adjusted against these posts. Therefore the reduction of only Scheduled Tribe category posts under such circumstances cannot be considered to be unjustified, as has been contended by the Petitioners. 15. It is seen in the instant case that the birth dates of the eight short listed candidates who were at par on marks, varied from 15.7.1980 to 30.12.84, whereas the date of birth of the 2 writ Petitioners namely Ran Boro is 28.5.88 and that of Kartik Dewraja is 1.1.87, and it is apparent that the writ Petitioners are far junior, to the eight short listed candidates. Although no statutory support can be found for preferring candidates as per their dates of birth is available, considering the transparent criteria adopted and also similar criteria seen in Rule 8 (f) of the Rules, which of course applies for determination of seniority of recruited constables, I am of the opinion that no interference of this Court is called for with the adoption of criteria, which appears to have been adopted on rational basis. 16. At the conclusion of the dictation, the learned Counsels for the Petitioner submitted that all the 37 posts earmarked for absorption of surrendered Bodo Militants have not been filled up and some of those posts are even now vacant. But the learned Central Govt. Counsels contest the said claim. Having regard to the above submissions, I consider it reasonable to order that if some posts out of the 37 posts of the Scheduled Tribe category remains to be filled up, the CRPF authorities may consider appointment of the selected candidates, who could not secure appointment under the said category only because of reduction of the advertised post. 17. These writ petitions stand disposed of in terms of the aforesaid direction.