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2025 DIGILAW 78 (GAU)

Utpal Barman S/o Damodar Barman v. Union of India

2025-01-21

N.UNNI KRISHNAN NAIR

body2025
JUDGMENT : N. UNNI KRISHNAN NAIR, J. Heard Mr. R. Majumdar, learned counsel for the petitioner. Also heard Mr. B. Chakraborty, learned CGC appearing for the State respondents. 2. The petitioner, by way of instituting the present proceeding has inter alia, prayed for a direction upon the respondent authorities to consider his case for appointment against any post put up for recruitment vide the advertisement dated 24.01.2015, in any of the Central Armed Police Forces (CAPFs) so involved, by considering the marks scored by him in the selection process. The petitioner has accordingly, prayed for a review of the select list dated 02.02.2017 for inclusion of his name therein by reckoning the marks scored by him in the selection process. 3. The brief facts requisite for adjudication of the issue arising in the present proceeding is noticed as under:- The Staff Selection Commission had issued an advertisement on 24.01.2015 for conduct of recruitment against the advertised posts of Constable (GD) in Border Security Force (BSF), Central Reserve Police Force (CRPF), Central Industrial Security Force (CISF), Indo Tibetan Border Police (ITBP), Sahastra Seema Bal (SSB), National Investigation Agency (NIA) and Secretariat Security Force (SSF) and Rifleman in Assam Rifles. The selection process as per the advertisement was to consist of Physical Standard Test, Physical Efficiency Test, Written Examination and Medical Examination. The closing date for submission of application for candidates from the North-Eastern Region, in terms of the said advertisement was stipulated as 02.03.2015. The applicant submitted his application in pursuance to the said advertisement and exercised a limited option for consideration of his case against the vacant posts of Constable (GD) advertised for the BSF. The petitioner, thereafter, participated in various stages of the selection process and on conclusion thereof, the results being declared, the petitioner was found to have secured 44 marks in his written examination. The cut-off marks for OBC (male) candidates in the BSF being 52, the petitioner not having secured the minimum cut-off marks, his case was not considered for inclusion in the select list as published against the vacancies of Constable (GD) for the BSF. The grievance of the petitioner is that persons securing marks lower than him in the recruitment process were accommodated in the other CAPFs, whereas, his case for such appointment was not considered by the respondent authorities. 4. The grievance of the petitioner is that persons securing marks lower than him in the recruitment process were accommodated in the other CAPFs, whereas, his case for such appointment was not considered by the respondent authorities. 4. The respondent authorities have contended in the present proceeding that the petitioner having only exercised a limited option in his application for recruitment against the vacant posts of Constable as advertised for the BSF, he having not secured the cut-off marks mandated for recruitment as a OBC category candidate against the posts, as available for recruitment to BSF, he was not included in the select list so prepared. The petitioner not having exercised his option for any other post, the case of the petitioner was thereafter, considered against the default option as available in the advertisement. However, the vacancies as available in his category having been filled up in the other CAPFs, the petitioner could not be favoured with an appointment. 5. In view of the rival contentions raised by the parties to the proceeding, the issue arising in the present proceeding is as to whether, a candidate who had indicated preference to a particular service can be kept out of consideration for appointment to the other services, despite such candidate having secured more marks than the selected candidates in those other services. 6. The above issue is no longer res-integra and the Hon’ble Supreme Court in the case of Union of India Vs Probir Ghosh and Ors. , reported in (2022) 12 SCC 250 , on consideration of the said issue had held that the recruitment being so made by reckoning the merit as well as the preference as offered by the candidates, the candidates having indicated preference for one service only and having failed to secure the cut-off marks for that category was rightly not selected. While, other candidates, though had secured less marks were placed in the select list against any of the multiple options exercised by them. The Hon’ble Supreme Court, in the said case, had drawn in this connection the following conclusions:- “ 35. The preference for BSF was to be indicated by the alphabet "A". The preference for CISF, CRPF, SSB, ITBP and Assam Rifles are to be indicated respectively by the alphabets "B", "C", "D", "E" and "F". The respondents are candidates who have clearly indicated their preference to one service only. The preference for BSF was to be indicated by the alphabet "A". The preference for CISF, CRPF, SSB, ITBP and Assam Rifles are to be indicated respectively by the alphabets "B", "C", "D", "E" and "F". The respondents are candidates who have clearly indicated their preference to one service only. Some candidates have indicated preferences to multiple services, as there was no prohibition under the Recruitment Notification to do so. 36. What the Staff Selection Commission did was, to confine the consideration of candidates who indicated preference only to one service, to that service only. Candidates who indicated multiple preferences were considered for all those services and depending upon the cut-off marks, they were allotted to any one of the services. 37. Unfortunately, the respondents in these appeals indicated preference only to one service. They did not secure more than or equal to the cut-off mark for that service in the category to which they belonged. It is true that candidates who secured lesser marks than these respondents have been selected in other services, but it was because of the expression of their openness for appointment to any service, even at the time of submitting the application. The respondents have become wiser after the event. 38. The High Court proceeded on the basis that the candidates cannot be pinned down to the preference indicated in the application form and that appointing persons who secured lesser marks and rejecting those who secured higher marks on this ground, would be violative of Article 14 of the Constitution. 39. In doing so, the High Court clearly overlooked Column 16 under Para 4 of Annexure II, to the notification. This is clearly erroneous. 40. However, the learned counsel for the respondents relied upon a decision of the Division Bench of the Patna High Court in Ram Bilash Ram v. State of Bihar and the decision of the Allahabad High Court in Bindhyachal Kumar Singh v. Union of India . 41. In Ram Bilash Ram³, the High Court of Patna interpreted the word "preference" to mean a mere indication of a choice and held that the same cannot be taken to indicate the rejection of other options. The relevant portion of the judgment reads as follows: (SCC OnLine Pat para 11) "11. So, the ordinary meaning of "preference" is to give priority to one over another. The relevant portion of the judgment reads as follows: (SCC OnLine Pat para 11) "11. So, the ordinary meaning of "preference" is to give priority to one over another. It would mean that by giving preference to one the person shows his liking for it over the others. This does not mean that by giving preference or priority to one, he shows his dislike for others and opts against them. So, if the appellant gave preference to some services/posts, it cannot be said that he has withdrawn his candidature for the rest of the services/posts. Any contrary inference drawn on the basis of preference list would be opposed to the principle of natural justice. If one says that he prefers a five-roomed house, it cannot be interpreted to mean that he would not accept a four-roomed house if no five- roomed house is made available to him. The term "preference" always indicates that the person has a choice to make. It cannot be interpreted to mean that if he is not offered the thing for which he has shown his preference, he will not accept the other things offered to him for which also he was otherwise eligible and for which also he was candidate from the very beginning. If the applicant had no choice left with him, as he was not found suitable for the services/posts for which he had shown preference, it cannot be said that he has abandoned his claim for the rest of the services, as it cannot be presumed that he would prefer to remain unemployed, if he did not get services/posts of his choice." But in para 12 of the said decision itself, the High Court made it clear that "it would have been a different matter had there been a rule or instruction to the contrary". In the case on hand the instructions were very clear and hence the decision of the Patna High Court will not apply. 42. In Bindhyachal Kumar Singh, the Allahabad High Court was concerned with a case where the candidate left the column relating to preference, blank. Therefore, the High Court held that in the absence of any condition or instruction to the effect that if any column in the application form is left blank, the application form would be rejected, and the approach adopted by the Staff Selection Commission was not correct. Therefore, the High Court held that in the absence of any condition or instruction to the effect that if any column in the application form is left blank, the application form would be rejected, and the approach adopted by the Staff Selection Commission was not correct. Therefore, the said case is also not on a par with the case on hand. 43. As a matter of fact, a similar question came up for consideration before this Court in Union of India v. M.V.V.S. Murthy . The candidate in that case preferred Indian Administrative Service in the Civil Services Examination, 1983. He was actually selected for IPS. He did not accept it but chose to appear for the next year examination. When he could not make it in the next year examination, he gave a representation seeking at least to be allotted to IPS for the CSE 1983 batch on the ground that candidates who had secured lesser marks than him have been allotted to IPS in CSE 1983. When it was not accepted, he approached the court, but this Court rejected his claim. 44. Para 5 of the said decision clinches the issue and it reads as follows: (M.V.V.S. Murthy case, SCC p. 373) "5. Indisputably the respondent confined his preference only to the Indian Administrative Service. The note appearing below Column 22 in the application form reads thus: 'In respect of the services/posts not covered by the entries above, it will be assumed that you have an equal preference for those services/posts. You will therefore, be considered for any of those services if you cannot be allotted to the services of your preference.' The real meaning of this note appears to us to be that if preferences given by the candidate are not available to be accommodated on the basis of the results of the candidate's preference in the selection examination, instead of being rejected he would be available to be considered for the other service. As already pointed out. the Civil Services Examination is a combined examination for several services and when a vacancy is not available within the field of the candidate's choice, it is open to the Central Government to consider the candidate for other services. As already pointed out. the Civil Services Examination is a combined examination for several services and when a vacancy is not available within the field of the candidate's choice, it is open to the Central Government to consider the candidate for other services. The effect of this note is not that preferences given by a candidate securing a place lower to the respondent would not be entitled to his preference because he has been placed below the respondent in ranking. If ranking alone is to be the test, preferences would have no meaning. On the other hand, the procedure that preferences are acceptable with reference to the position in the final list till vacancies in the services preferred are exhausted is the most logical one and meets the requirements of the scheme. Merely because the respondent was placed at the 280th place in the merit list and someone else placed at No. 291 was being offered the Indian Police Service in keeping with his preference, would not give the respondent any cause of action." (emphasis supplied) 45. Therefore, the High Court was clearly wrong in granting relief to the respondents: (i) by diluting the significance of preferences given by candidates; and (ii) in nullifying the effect of the instructions contained in Column 16 of Para 4 of Annexure II to the Recruitment Notification.” 7. Applying the decision of the Hon’ble Supreme Court in the case of Probir Ghosh (supra) to the facts of the present case, it is clear that the petitioner, herein, having exercised a limited option in his application for recruitment against the vacant post of Constable (GD) reserved for OBC (male) candidates in the BSF; and he having not secured the requisite cut-off marks in his category for being included in the said select list, the petitioner was rightly excluded from the purview of selection process. Although, the petitioner has secured more marks than the last recruited candidates in some other CAPFs, the said posts already having been filled up by candidates who had so exercised options for recruitment against the said CAPFs, and while applying the default option, there being no vacancy available for recruitment of the petitioner in the OBC category in any of the CAPFs involved in the recruitment process, the non inclusion of the name of the petitioner in the select list cannot be said to be illegal and/or arbitrary. 8. 8. In view of the decision of the Hon’ble Supreme Court, in the case of Probir Ghosh (supra) , it is to be held that the exclusion of the petitioner herein, from the select list in question is not erroneous and accordingly, the same would not call for any interference by this Court. 9. In view of the above conclusions reached by this Court herein above, this Court is of the considered view that the writ petition is devoid of any merit and accordingly, the same stands dismissed. However, there would be no order as to costs.