Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 855 (JK)

Barket Hussain v. Union of India

2018-10-30

TASHI RABSTAN

body2018
JUDGMENT : Tashi Rabstan, J. Instant writ petition has been filed by the petitioner, seeking quashment of Order No.R.II/2014-EC-V-(SWP No. 2861/2014) dated 21.06.2013, to the extent it rejects the claim of the petitioner against the post of Constable GD. 2. The facts leading to filing of this petition are that respondent No.5 issued an Advertisement Notification for an open recruitment rally of young male/female candidates of J&K State as Constable (General Duty) in CRPF held on 02.04.2012 to 03.04.2012. The total number of posts advertised, were 431. The breakup of the total vacancies for the said posts was as under:- UR OBC SC ST Total 191 163 31 46 431 3. Being eligible, the petitioner applied under ST category. He appeared in the open recruitment rally on 03.04.2012 and qualified the Physical Standard Test (Ground Test) and Written Examination. Thereafter, the petitioner appeared at Group Centre, CRPF, Bantalab on 07.07.2012 for Medical Examination and was found medically unfit. He applied for Review Medical Examination with medical certificates, wherein he was declared medically fit for recruitment in CRPF as Constable GD. After a long wait when nothing was done, the petitioner along with others had filed a writ petition before this Court, being SWP No. 2861/2013 titled Mohd Razaq and others v. Union of India and others which came to be disposed of at the threshold vide Order dated 06.01.2014 directing the respondents to reconsider the cases of the petitioners therein for appointment as Constables in CRPF in light of the Review Medical Certificates forming Annexures-”L”, “M” and “N” to the petition. The respondents have considered the claim of the petitioner and passed Order being Order No.R.II.09/2014-EC-V-(SWP No. 2861/13) dated 21.06.2014, whereby they rejected the case of the petitioner for selection against the post of Constable GD because of tie of marks with the private respondent. In the said Order, it is mentioned that petitioner had secured 28 marks and the last selected candidate in ST category had also secured 28 marks, and in case of tie of marks, the candidate older in age gets preference, therefore, the petitioner could not be recruited as private respondent had been already selected with the same marks. 4. In the said Order, it is mentioned that petitioner had secured 28 marks and the last selected candidate in ST category had also secured 28 marks, and in case of tie of marks, the candidate older in age gets preference, therefore, the petitioner could not be recruited as private respondent had been already selected with the same marks. 4. Learned counsel for the petitioner contends that to the best of information of the petitioner, all the posts of Constable GD under ST category as per the Advertisement Notification, have not been filled up till date and even otherwise the respondents are still having vacancies in excess of the vacancies those have been advertised. It is also contended that the case of the petitioner is on a better footing but the respondents on one pretext or the other had adopted tactics to reject his case. Hence, this petition on the grounds taken in it. 5. Respondents have filed the objections insisting therein that the petitioner participated in the selection process under ST category, but, was found medically unfit by the Medical Officer. It is also contended that keeping in view Recruitment Directorate Signal dated 09.11.2012, it was clarified that Review Medical Examination in respect of remaining candidates, who were found medically unfit, was not required to be conducted due to non-availability of the vacancies. According to the new policy applicable at that time such request for re-medical examination was not to be considered if vacancies did not exist. Accordingly Review Medical Examination Appeal was not accepted by the appellate authority due to non-availability of vacancies. It is also stated that the petitioner, along with two other writ petitioners, filed a writ petition bearing SWP No.2861/2013, which was disposed of vide order dated 06.01.2014, directing the respondents to reconsider the case of the petitioner for appointment as Constables in CRPF in light of the Review Medical Certificates. It is insisted that in utter compliance to the direction of this Court dated 06.01.2014, a Board of Medical Officers was detailed to conduct the Review Medical Examination on 07.04.2014 and, accordingly, Review Medical Examination of the petitioner was conducted on 09.04.2014 within the existing parameters. As a result of this, the petitioner was found fit. The petitioner had applied under ST category and all the vacancies in the said category had already been filled. As a result of this, the petitioner was found fit. The petitioner had applied under ST category and all the vacancies in the said category had already been filled. The last candidate in the ST category, who was recruited was to be ousted but the marks obtained by the petitioner were 28 and the last selected candidate in ST category had also secured 28 marks, as such, according to established rules and policy, a candidate, older in age, was to be given preference. The candidate last selected in the ST category was retained because he was older in age than petitioner, so under rules he was to be preferred. Thus, it is contended that respondent No.6, Showkat Hussain, who also applied under ST category, obtained 28 marks. He was the last candidate of ST category who was recruited. The petitioner also obtained 28 marks, but his age was lower than respondent no.6, Showkat Hussain, as such, he was not ousted under Rules. 6. Heard learned counsel for the parties and perused the record. 7. What is not in dispute in this petition is that the petitioner and the person appointed, have secured equal merit in the selection process. The only question, which arises for consideration of the Court, is as to whether the appointment of the private respondent on the basis of being older in age than the petitioner, can vitiate his appointment. 8. Admittedly, the appointment of the private respondent has not been offered to him only on the ground of he being older in age than the petitioner, but the merit between the petitioner and the private respondent was equal. Thus, the appointment is not offered to a person with lesser merit as in such circumstance the appointment may stand vitiated in the eyes of law. There is no arbitrariness in the criteria of picking up the older person for appointment in preference to the younger one in case of tie. The justification for picking up older person of equal merit may be that he is mature and may prove more responsible than the younger person or had less chances of seeking consideration being selected/appointed on the post in view of age. 9. The justification for picking up older person of equal merit may be that he is mature and may prove more responsible than the younger person or had less chances of seeking consideration being selected/appointed on the post in view of age. 9. Learned counsel for the petitioner has vehemently argued that the rejection of the claim of the petitioner on the basis of tie of marks with the private respondent is discriminatory in nature because an identical and similarly situated person, namely, Mohd Razaq, whose name is mentioned in the impugned rejection order, was offered the appointment for the post of Constable GD whereas in the case on hand, the respondents have to consider petitioner on the same analogy of Mohd Razaq son of Makahna under the ST category. 10. Since there was tie in the marks awarded to the petitioner as well as private respondent, as such, the official respondents opted to select private respondent on the ground of he being older in age than the petitioner under ST Category. Now the question arises for consideration is: “whether private respondent has rightly been selected and petitioner has rightly been dropped”. 11. The petitioner, though found fit by Re-assessing Review Medical Board and secured 28 marks, i.e. equal marks as obtained by private respondent, has not been considered for post in question. 12. Learned counsel for the respondents have produced a copy of the Standing Order No.04/2010, which, at request, is taken on record wherein a provision has been envisaged in Para No.10, Stage-IV (v) in case of tie in marks and the merit list is to be prepared in the following order:- (a) Older Age:- the candidates with older age shall be higher in merit list. (b) Alphabetical order:- The candidates whose name come first in the alphabetical order (English) shall be kept higher in the merit list. 13. In the context of above quoted provision, it is contended by learned counsel for the respondents that the private respondent, in view of his date of birth, is older in age than petitioner, therefore, respondent No.5, while complying with the provisions of Standing Order No.4/2010, issued the select list and the petitioner has been found younger in age, and therefore, could not be considered. 14. The respondents have also produced the record to strengthen their stand. 14. The respondents have also produced the record to strengthen their stand. Perusal whereof reveals that the date of birth of the petitioner is shown as 01.04.1992 whereas private respondent’s is 04.02.1990. As per Para No.10, Stage-IV (v) of the Standing Order No.04 of 2010, two conditions have to be followed as quoted above. If there are cases of tie in marks, the merit list will be prepared as per clause (a) and (b) of Para No.10, Stage-IV (v). The private respondent, being older in age than the petitioner, has, therefore, been rightly considered by official respondents for appointment. 15. A Division Bench of this Court, in which I was also a member, in LPASW No.183/2016, titled as, Shahid Nazir vs State & others, decided on 23.02.2018, has held that the method of resolving a tie, i.e., where, first the marks obtained in the written examination are to be taken, secondly, the marks in viva-voce are to be considered and even if that does not resolve the tie, then only age would be the determinative factor, cannot be said to be arbitrary or discriminatory. 16. Therebefore as well, a Division Bench of this Court had also taken the same view in LPA No.50/2012 titled Mohammad Iqbal Dar vs. State of J&K and Others, decided on 06.10.2012 reported in 2013 (1) SLJ 18 and 2013 (3) JKJ 508 . What is held in paragraph-4, is pertinent to be reproduced hereunder:- “4. …..It has not been disputed that the merit of the appellants-petitioners was equal to that of the private respondent Nos.3, 4 and 5. In order to adopt an objective criteria on the touch stone of Article 14 and 16(1) of the Constitution, we find that there is no arbitrariness in the criteria of picking up the older person for appointment in preference to the younger one in case of tie. …..” 17. The Division Bench has held that there is no arbitrariness in appointing the older person in preference to the younger one in case of tie. Again, a similar view has been taken by this Court while rendering a judgment dated 17.07.2018 in SWP No. 2475/2009, titled Layaqit Hussain vs. State of J&K and Others. Incidentally I am the author of the same and it was held therein that the candidate with older in age was to be given preference. 18. Again, a similar view has been taken by this Court while rendering a judgment dated 17.07.2018 in SWP No. 2475/2009, titled Layaqit Hussain vs. State of J&K and Others. Incidentally I am the author of the same and it was held therein that the candidate with older in age was to be given preference. 18. In the instant case also, since there was a tie of marks of petitioner as well as private respondent, therefore, as a last resort, the candidate with older in age was to be given preference, i.e., private respondent herein. As such, I do not see any illegality or arbitrariness in the selection process. 19. In view of the above, I do not find any merit in the instant writ petition. Accordingly, the same is dismissed along with connected IA(s), if any. However, the respondents are at liberty to consider the claim of the petitioner at par with one Mohd Razaq provided the petitioner is similarly circumstanced to that of Mohd Razaq and a vacancy of Constable (GD) under ST category is lying vacant. 20. Record be returned to the counsel for the respondents.