UNION OF INDIA AND ORS. versus PROBIR GHOSH AND ORS. on 17 February 2022

UNION OF INDIA AND ORS.

v.

PROBIR GHOSH AND ORS.(Civil Appeal No. 4585 of 2018)

FEBRUARY 17, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Service Law: Staff Selection Commission – Eligibility underNotification – Rule of Construction – In the instant case, therespondents were applicants for different posts such as constablesin Central Armed Police Forces, rifleman in Assam Rifles, etc. –They were kept out of merit list on the ground that they had failed tofulfill the eligibility requirement as notified in the Notification –Failure as alleged by the appellant authority was that one of therespondent had applied for the vacancies, the reservation withrespect to which was circumscribed to a particular border districtto which he was domiciled and since the vacancies in said districtwere not available, he could not be placed on merit list for thevacancies limited to other border district – Also the other respondentwho indicated his preference for one particular service and not forother services cannot be considered for the appointment in otherservices on the basis of merit alone – Appellant authority also rejectedone of the respondent for being considered for appointment in OBCreservation on the ground that the OBC certificate was not in aprescribed format – Respondents successfully filed appeals beforeHigh Courts – Hence instant appeals – Held: Once the vacanciesare earmarked separately for different categories of border districtsin the recruitment notification, it cannot be held that all borderdistricts are to be treated alike, and hence appointment for vacanciesin other border district cannot be made – Where the Notificationprovides for preference with respect to posts and the preference ismade by the candidate with respect to only one particular post thenhe cannot claim appointment on other posts for which he has notmade the preference on the basis of merit alone, particularly wheresuch notification provides that the preferences so made by thecandidate will be final and will not be changed under anycircumstances – The question of OBC certificate to be in a prescribedformat cannot be entertained in the appeal before the Apex Court

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Aas it is a question of fact and the same cannot be assessed on meritsas considerable time period has lapsed and particularly in caseswhere physical fitness of an incumbent in an uninformed service isof utmost important.

Allowing the appeals, the CourtBHELD: 1. With respect to Civil Appeal Nos. 4586-4587 of2018

The respondent belonged to the border district of Baksawhich came under Code “02”. As per Appendix-C to theNotification, the vacancies for the border districts coming underCCode “02” of the State of Assam were “nil” in respect of BSF(Male and Female), Assam Rifles (Male) and ITBP (Male).Therefore, he could not have been considered for the vacanciesearmarked for the border districts of Assam coming under Code“01”. But unfortunately, the High Court, in the impugned order,proceeded on a reasoning that all border districts are liable to beDtreated alike and that once a person is found to belong to oneborder district, he is entitled to be considered in respect of allborder districts. The said reasoning of the High Court, if accepted,will tantamount to tampering with the Recruitment Notification.Once vacancies are earmarked separately for different categoriesEof border districts, even in the Recruitment Notification, it is notpossible to hold that all border districts are to be treated alike.Different considerations may weigh with the recruiting authoritiesfor categorizing the border districts into two types. Therefore,the High Court was not justified in granting relief to therespondent on the ground that he must be considered as a personFdomiciled in the border district where vacancies were available,though he belonged to another border district, to which no vacancywas notified. [Paras 25, 26, 27][940-G-H; 941-A-C]

2. With respect to Civil Appeal No. 4585 of 2018 & CivilAppeals arising out of Special Leave Petition (C) Nos.30408-G30409 of 2019

In Column No.16 under paragraph 4.0 of Annexure-II, whichis the brochure containing instructions for filling up the application,candidates were called upon to carefully indicate preference forthe post under different Forces. It was also made clear that optionH

once exercised will be final and that no change will be allowedthereafter. The preference for BSF was to be indicated by thealphabet “A”. The preference for CISF, CRPF, SSB, ITBP andAssam Rifles are to be indicated respectively by the alphabets“B”, “C”, “D”, “E” and “F”. The respondents are candidateswho 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 Notificationto do so. What the Staff Selection Commission did was, to confinethe consideration of candidates who indicated preference only toone service, to that service only. Candidates who indicatedmultiple preferences were considered for all those services anddepending upon the cut off marks, they were allotted to any oneof the services. Unfortunately, the respondents in these appealsindicated preference only to one service. They did not securemore than or equal to the cut-off mark for that service in thecategory to which they belonged. It is true that candidates whosecured lesser marks than these respondents have been selectedin other services, but it was because of the expression of theiropenness for appointment to any service, even at the time ofsubmitting the application. The respondents have become wiserafter the event. The High Court proceeded on the basis that thecandidates cannot be pinned down to the preference indicated inthe application form and that appointing persons who securedlesser marks and rejecting those who secured higher marks onthis ground, would be violative of Article 14 of the Constitution.In doing so, the High Court clearly overlooked Column No.16under paragraph 4 of Annexure-II, to the Notification. This isclearly erroneous. Therefore, the High Court was clearly wrongin granting relief to the respondents (i) by diluting the significanceof preferences given by candidates; and (ii) in nullifying the effectof the instructions contained in Column No.16 of paragraph 4 ofAnnexure-II to the Recruitment Notification. [Paras 33-38,44][942-B-H; 945-E]

Ram Bilash Ram v. State of Bihar and others 1986 SCCOnLine Pat 268 – held inapplicable.Bindhyachal Kumar Singh v. Union of India and others2013 SCC OnLine All 9828 – distinguished.

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A3. It is true that the power to issue caste certificates vestswith the officers of the State Government and that there is nouniformity in this regard. Therefore, some leverage has to begiven. But it is not known whether what is produced before theCourt as Annexure R-8 along with I.A.No.76255 of 2018 was thecaste certificate actually produced by that respondent. If this isBthe certificate that he had actually enclosed to his application,there would have been no occasion for the High Court to examinewhether the objection relates to substance or mere form. At thislevel, in an appeal before the highest Court, it is not possible forus to look into this question of fact. This is especially so sinceCthe recruitment relates to uniformed services, where physicalfitness of the incumbents is of utmost importance. A period ofmore than 10 years have now passed from the date of Notification.Therefore, at this stage it is not possible to enter into disputedquestions of fact and grant relief to those two respondents. [Paras48, 51][946-D, G-H; 947-A]D

Union of India vs. M.V.V.S Murthy (1987) Supp.SCC371 – referred to.

Case Law Reference

1987 Supp. SCC 371referred toPara 42ECIVIL APPELLATE JURISDICTION: Civil Appeal No. 4585of 2018.

From the Judgment and Order dated 04.01.2016 of the High Courtof Gauhati at Guwahati in Writ Petition (Civil) No. 5520 of 2012.

WithF

Civil Appeal Nos.1441-1442 of 2022 and Civil Appeal Nos. 4586-4587 of 2018.

K. M. Nataraj, ASG, Ms. Ranjana Narayan, Ms. Aakanksha Kaul,Anirudh Bakhru, Apoorv Kurup, Sandeep Kumar Mahapatra, AmitSharma, Arvind Kumar Sharma, Mukesh Kumar Maroria, Advs. for theGAppellants.

Siddhartha Dave, Sr. Adv., Parthiv K. Goswami, Ms. Diksha Rai,Ankit Agarwal, Anuj Aggarwal, Ms. Madhusmita Bora, Pawan KishoreSingh, Avijit Roy, Kausar Raza Faridi, Praveen Jha, N. B. V. Srinivasa Reddy,Shahbaaz Jameel, Mrs. D. Bharathi Reddy, Advs. for the Respondents.H

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. By a Notification dated 03.12.2011, the Staff SelectionCommission invited applications for recruitment (i) of Constables (GD)in Central Armed Police Forces (CAPFs) such as ITBP, BSF, CISF,CRPF and SSB; and (ii) of Rifleman (GD) in Assam Rifles. Initially thenumber of posts sought to be filled up was notified as 39574, but thesame was revised to 48802.

2. As per the Notification, the process of recruitment was tocomprise of Physical Standards Test, Physical Efficiency Test, WrittenExamination and Medical Examination.

3. The closing date for submission of applications was fixed as04.01.2012. However, candidates residing in North Eastern States, Jammu& Kashmir, Sikkim, a few districts of Himachal Pradesh, Andaman &Nicobar Islands and Lakshadweep were entitled to submit the applicationson or before 11.01.2012.

4. The Notification made it clear that the recruitment would bebased upon reservations mentioned in the Appendix, state-wise andcategory-wise. Apart from the reservation for OBC, SC and STcandidates, the Notification provided for reservation for candidatesdomiciled in Naxal and Militancy affected areas and select border districtsof some states in each of the services such as ITBP, BSF etc. In fact,relaxation in the upper age limit was also granted not only for SC, ST,OBC and ex-serviceman candidates, but also for those domiciled incertain areas and those dependents of victims killed in 1984 riots or inthe communal riots of 2002 in Gujarat.

5. Appendix-A to the Recruitment Notification dated 03.12.2011showed that the vacancies were separately earmarked, (i) service-wise,such as Assam Rifles, BSF, CISF, CRPF, ITBP and Sashastra SeemaBal; (ii) State and Union Territory wise such as Andaman and Nicobar,Andhra Pradesh, Arunachal Pradesh etc.; and (iii) Intra-State wise forthe entire State as well as Naxal affected areas/border districts of thesame State. Appendix-C to the Notification indicated how the borderdistricts of North Eastern States, Bihar, Gujarat, Himachal Pradesh,Jammu & Kashmir, Punjab and Rajasthan were also divided into one ormore categories and how the vacancies are distributed among theseareas. The vacancies in every service in respect of every State, underAppendix-A to the Notification were distributed further on the basis ofthe Rule of Reservation for OBCs, SCs and STs.

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A6. At the cost of repetition it must be pointed out that the totalnumber of about 48802 vacancies were distributed service-wise, state-wise, reserved category-wise and domiciliary status-wise in respect ofborder districts and Naxal/Militancy affected areas.

7. Annexure-II to the Recruitment Notification containedB“Instructions for filling up the application”. Column No.16 underparagraph 4.0 of the said Instructions dealt with “preference for posts”.This Column No.16 under paragraph 4.0 of Annexure-II to theRecruitment Notification dated 03.12.2011 reads as follows: “Candidatesshould carefully indicate preference for post under different forces.Option once exercised will be final and no change will be allowedCunder any circumstances.”

8. The format of the certificate to be produced by candidatesbelonging to Scheduled Castes and Scheduled Tribes, was provided inAnnexure-VI. The format of the certificate to be produced by OBCswas given in Annexure VII.D9. Since vacancies were notified service-wise, state-wise and

9. Since vacancies were notified service-wise, state-wise andcategory-wise, Annexure-XII to the Recruitment Notification indicatedthe code numbers allotted to all the States and Union Territories andAnnexure XIII separately indicated the code numbers allotted to differentborder districts of the North-Eastern States, Bihar, Gujarat, HimachalPradesh, Jammu & Kashmir, Punjab, Rajasthan and West Bengal.EAnnexure-XIV provided the code numbers separately for the Naxal/Militancy affected districts in some of the States such as Andhra Pradesh,Bihar, Orissa, Jharkhand, Chhattisgarh etc.

10. After the completion of the process of selection, the StaffSelection Commission published a Select List of candidates on 17.10.2012.FFinding that their names did not find a place in the final Select List andcontending that candidates who secured lesser marks than them areincluded in the Select List, a group of 26 persons filed a writ petition inWP (C) No.5520 of 2012 on the file of the Gauhati High Court. In additionto the contention revolving around the marks secured by them and theGmarks secured by some of the selected candidates, this group of 26 writpetitioners also contended that though two of them belonged to OBCcategory, they had been treated under the unreserved category.Therefore, these candidates sought a writ of certiorari to quash thefinal Select List of candidates, in so far as the State of Assam isconcerned with a further direction to the respondents in the writ petitionHto prepare a fresh Select List.

11. The said writ petition WP (C) No.5520 of 2012 was taken upby a learned Judge of the Gauhati High Court along with 14 other writpetitions. All the 15 writ petitions were allowed by the learned Judge, bya common order dated 04.01.2016.

12. Following the decision rendered on 04.01.2016 in the said batchof 15 writ petitions, the learned Single Judge also allowed other similarwrit petitions by separate orders dated 26.02.2016, 14.03.2016,21.03.2016, 30.03.2016, 31.03.2016, 06.04.2016, 06.06.2016 and09.06.2016.

13. Aggrieved by these orders, the Union of India and the StaffSelection Commission filed an intra-court appeal before the DivisionBench. It was stated in the Memorandum of Appeal that there weretotally 476 candidates before the learned Single Judge in various writpetitions and that out of those candidates, 61 persons had been selectedsubsequently when revised results were announced.

14. However, the intra-court appeal was filed with a delay. By anorder dated 24.10.2016 the Division Bench of the High Court refused tocondone the delay in filing the intra-court appeal. Therefore, the Unionof India and the Staff Selection Commission have come up with CivilAppeal No.4585 of 2018, challenging the order of the learned SingleJudge dated 04.01.2016 passed in WP(C) No.5520 of 2012.

15. In this appeal (Civil Appeal No.4585 of 2018) only two issuesarise for consideration. They are, (i) whether the rejection of the OBCcertificate of a few candidates on the ground that they were not in theprescribed format and the consequent categorization of those candidatesas general category candidates is correct?; and (ii) whether candidateswho have indicated preference to a particular service can be kept out ofconsideration for appointment to other services, despite these candidateshaving secured more marks than the selected candidates in those otherservices?

16. One candidate who was issued with an order of appointment,but which was subsequently cancelled on the ground that he did notbelong to the border district to which he was selected, filed an independentwrit petition before the Gauhati High Court in WP (C) No.6153 of 2013.Holding that the domicile of a person in one particular border district willnot debar him from being considered for appointment in another borderdistrict, the Gauhati High Court allowed the said writ petition by aJudgment dated 16.05.2016. A petition for review was filed by the Union A

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Aof India, but the same was also dismissed. Therefore, challenging theorder allowing W.P.(C) No.6153 of 2013 and challenging the order passedin the Review Petition, the Union of India and the Staff SelectionCommission have come up with two civil appeals in C.A. Nos.4586-4587 of 2018.

B17. One candidate approached the Delhi High Court by way of awrit petition in W.P.(C) No.8571 of 2015 contending that though heindicated his preference for one particular service, he is entitled to beconsidered for appointment in other services, on the basis of his ownmerit. This writ petition was allowed by the Delhi High Court by anOrder dated 03.10.2018. The petition for review filed by the Union ofCIndia was also dismissed on 05.04.2019. As against the order passed inthe writ petition and the review petition, the Union of India and the StaffSelection Commission have come up with SLP(C) Nos.30408-30409 of2019.

18. Leave granted in SLP(C) Nos.30408-30409 of 2019.DCivil Appeal Nos.4586-4587 of 2018

19. Since the issue involved in these two appeals lies on a narrowcompass, we shall take up these appeals first.

20. As we have indicated in paragraph 14 above, the respondentEin this writ petition belongs to the Scheduled Tribe and is domiciled inBaksa District of Assam. In Annexure-XIII to the RecruitmentNotification dated 03.12.2011, the border districts of Assam were dividedinto two categories. The border districts of Dhubri, Cachar & Karimganjwere given Code No.”01". The border districts of Baksa, Chirang,FKokrajhar & Udalguri were assigned Code No.”02". Since the respondentbelonged to Baksa District, he was entitled to be considered as a candidatebelonging to the border districts of Assam with Code No.”02".

21. Paragraph 2 of the Recruitment Notification stated that thestate-wise and category-wise tentative number of vacancies to be filledup are indicated in the Appendix. Appendix-C to the RecruitmentGNotification indicated the vacancy position in respect of CT (GD) (maleand female) of B.G. Districts of CAPFs. The relevant portion of Appendix-C to the Recruitment Notification, which relates to the two categories(Code Nos. 01 and 02) of the border districts of Assam are reproducedfor easy reference as follows:H

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A22. The last portion of paragraph 1 of the Recruitment Notificationindicated the importance of the domiciliary status. It reads as follows:

“State-wise vacancies are available for candidates domiciledin the State and reservation is also available for candidatesdomiciled in naxal and militancy affected areas and selectBborder districts in each CAPFs”.

23. Note-III under para 2 of the Recruitment Notification readsas follows:

“As the vacancies have been allotted to the concerned States/UTs, candidates are required to submit domicile certificatesCof the States indicated by them in the application at the timeof the medical examination.”

24. Paragraph 4(C) of the Recruitment Notification containedinstructions regarding the “process of certification and format ofcertificates”. The relevant portion of paragraph 4C reads as follows:D“…Candidates belonging to the State/UT will only beconsidered for recruitment in their respective State/UT onproduction of valid “Domicile Certificate” issued by thecompetent authority so authorized by the concerned State/UT to prove their domiciliary status. Since the State of AssamEis not issuing Domicile Certificate/PRC, candidates belongingto the state of Assam are not required to submit the same.However, their selection will be subject to verification ofresidential status from the concerned District Authorities. WestPakistani refugees who have settled in J & K but have notbeen given the status of J & K citizen of the State will beFrecruited without the condition of having a domicile certificatefrom the designated authority of the J & K State.”

25. Admittedly the respondent in these two civil appeals belongedto the border district of Baksa which came under Code “02”. As perAppendix-C to the Notification, the vacancies for the border districtsGcoming under Code “02” of the State of Assam were “nil” in respect ofBSF (Male and Female), Assam Rifles (Male) and ITBP (Male).Therefore, he could not have been considered for the vacanciesearmarked for the border districts of Assam coming under Code “01”.

26. But unfortunately the High Court, in the impugned order,Hproceeded on a curious reasoning that all border districts are liable to be treated alike and that once a person is found to belong to one borderdistrict, he is entitled to be considered in respect of all border districts.

27. The aforesaid reasoning of the High Court, if accepted, willtantamount to tampering with the Recruitment Notification. Oncevacancies are earmarked separately for different categories of borderdistricts, even in the Recruitment Notification, it is not possible to holdthat all border districts are to be treated alike. Different considerationsmay weigh with the recruiting authorities for categorizing the borderdistricts into two types. Therefore, the High Court was not justified ingranting relief to the respondent on the ground that he must be consideredas a person domiciled in the border district where vacancies wereavailable, though he belonged to another border district, to which novacancy was notified.

28. Relying upon one portion of paragraph 4(C) of the RecruitmentNotification which we have extracted in paragraph 24 above (in boldletters), it is contended by the learned counsel for the respondent thatwhen the State of Assam was admittedly not issuing domicile certificates,it is not proper to discriminate between 2 different categories of borderdistricts.

29. But we are not impressed with the above argument. Therequirement to produce a domicile certificate stands on a different footingfrom the categorization of border districts. Paragraph 4(C) of theRecruitment Notification dispenses with the requirement of certificate,in so far as the State of Assam is concerned. But it does not make thecategorization of border districts inapplicable.

30. Therefore, the Civil Appeal Nos. 4586 and 4587 of 2018 areallowed and the impugned orders passed in W.P.(C) No.6153 of 2013and in the review application are set aside. The writ petition filed by therespondent shall stand dismissed.

Civil Appeal No. 4585 of 2018 & Civil Appeals arising outof Special Leave Petition (C) Nos.30408-30409 of 2019

31. As we have indicated in paragraph 13 above, two questionsarise for consideration in C.A.No.4585 of 2018. Only one question arisesfor consideration in the other Civil Appeals arising out of the judgment ofthe Delhi High Court.

32. The question that is common to the appeal arising out of thejudgment of the Gauhati High Court and the appeals arising out of the AB

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ADelhi High Court is whether candidates who have indicated preferencefor a particular service can be kept out of consideration for appointmentto other services, despite such candidates having secured more marksthan the selected candidates in those other services.

33. In Column No.16 under paragraph 4.0 of Annexure-II, whichBis the brochure containing instructions for filling up the application,candidates were called upon to carefully indicate preference for thepost under different Forces. It was also made clear that option onceexercised will be final and that no change will be allowed thereafter.

34. The preference for BSF was to be indicated by the alphabetC“A”. The preference for CISF, CRPF, SSB, ITBP and Assam Rifles areto be indicated respectively by the alphabets “B”, “C”, “D”, “E” and“F”. The respondents are candidates who have clearly indicated theirpreference to one service only. Some candidates have indicatedpreferences to multiple services, as there was no prohibition under theRecruitment Notification to do so.D

35. What the Staff Selection Commission did was, to confine theconsideration of candidates who indicated preference only to one service,to that service only. Candidates who indicated multiple preferences wereconsidered for all those services and depending upon the cut off marks,they were allotted to any one of the services.E

36. Unfortunately, the respondents in these appeals indicatedpreference only to one service. They did not secure more than or equalto 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 respondentshave been selected in other services, but it was because of the expressionFof their openness for appointment to any service, even at the time ofsubmitting the application. The respondents have become wiser afterthe event.

37. The High Court proceeded on the basis that the candidatescannot be pinned down to the preference indicated in the applicationGform and that appointing persons who secured lesser marks and rejectingthose who secured higher marks on this ground, would be violative ofArticle 14 of the Constitution.

38. In doing so, the High Court clearly overlooked Column No.16under paragraph 4 of Annexure-II, to the Notification. This is clearlyHerroneous.

39. However, the learned counsel for the respondents relied upona decision of the Division Bench of the Patna High Court in Ram BilashRam vs. State of Bihar and others[1]and the decision of the AllahabadHigh Court in Bindhyachal Kumar Singh vs. Union of India andothers.[2].

40. In Ram Bilash Ram (supra), the High Court of Patnainterpreted the word “preference” to mean a mere indication of a choiceand held that the same cannot be taken to indicate the rejection of otheroptions. The relevant portion of the judgment reads as follows:-

“11. So, the ordinary meaning of “preference” is to givepriority to one over another. It would mean that by givingpreference to one the person shows his liking for it over theothers. This does not mean that by giving preference orpriority to one, he shows his dislike for others and opts againstthem. So, if the appellant gave preference to some services/posts, it cannot be said that he has withdrawn his candidaturefor the rest of the services/posts. Any contrary inference drawnon the basis of preference list would be opposed to theprinciple of natural justice. If one says that her prefers afive-roomed house, it cannot be interpreted to mean that hewould not accept a four-roomed house if no five-roomed houseis made available to him. The term “preference” alwaysindicates that the person has a choice to make. It cannot beinterpreted to mean that if he is not offered the thing for whichhe has shown his preference, he will not accept the otherthings offered to him for which also he was otherwise eligibleand for which also he was candidate from the very beginning.If the applicant had no choice left with him, as he was notfound suitable for the services/posts for which he had shownpreference, it cannot be said that he has abandoned his claimfor the rest of the services, as it cannot be presumed that hewould prefer to remain unemployed, if he did not get services/posts of his choice.”

But in paragraph 12 of the said decision itself, the High Courtmade it clear that “it would have been a different matter had there 1 1986 SCC OnLine Pat 268

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Abeen a rule or instruction to the contrary”. In the case on hand theinstructions were very clear and hence the decision of the Patna HighCourt will not apply.

41. In Bindhyachal Kumar Singh (supra), the Allahabad HighCourt was concerned with a case where the candidate left the columnBrelating to preference, blank. Therefore, the High Court held that in theabsence of any condition or instruction to the effect that if any column inthe application form is left blank, the application form would be rejected,and the approach adopted by the Staff Selection Commission was notcorrect. Therefore, the said case is also not on par with the case onhand.C

42. As a matter of fact, a similar question came up for considerationbefore this Court in Union of India vs. M.V.V.S Murthy[3]. The candidatein that case preferred Indian Administrative Service in the Civil ServicesExamination, 1983. He was actually selected for IPS. He did not acceptit but chose to appear for the next year Examination. When he could notDmake it in the next year examination, he gave a representation seekingat least to be allotted to IPS for the CSE ‘83 batch on the ground thatcandidates who had secured lesser marks than him have been allotted toIPS in CSE 1983. When it was not accepted, he approached the court,but this Court rejected his claim.

E43. Paragraph 5 of the said decision clinches the issue and it readsas follows:- “5. Indisputably the respondent confined his preferenceonly to the Indian Administrative Service. The note appearingbelow column 22 in the application form reads thus:F

“In respect of the services/posts not covered by theentries above, it will be assumed that you have an equalpreference for those services/posts. You will therefore, beconsidered for any of those services if you cannot be allottedto the services of your preference.”

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The real meaning of this note appears to us to be that ifpreferences given by the candidate are not available to beaccommodated on the basis of the results of the candidate’spreference in the selection examination, instead of being

rejected he would be available to be considered for the otherservice. As already pointed out, the Civil Services Examinationis a combined examination for several services and when avacancy is not available within the field of the candidate’schoice, it is open to the Central Government to consider thecandidate for other services. The effect of this note is notthat preferences given by a candidate securing a place lowerto the respondent would not be entitled to his preferencebecause he has been placed below the respondent in ranking.If ranking alone is to be the test, preferences would have nomeaning. On the other hand, the procedure that preferencesare acceptable with reference to the position in the final listtill vacancies in the services preferred are exhausted is themost logical one and meets the requirements of the scheme.Merely because the respondent was placed at the 280th placein the merit list and someone else placed at No. 291 was beingoffered the Indian Police Service in keeping with hispreference, would not give the respondent any cause ofaction…”

44. Therefore, the High Court was clearly wrong in granting reliefto the respondents (i) by diluting the significance of preferences givenby candidates; and (ii) in nullifying the effect of the instructions containedin Column No.16 of paragraph 4 of Annexure-II to the RecruitmentNotification.

45. Coming to the second issue which arises only in respect oftwo respondents in Civil Appeal No.4585 of 2018, the case of the appellantis that those two candidates produced caste certificates to show thatthey belonged to the OBC category, but those certificates were not inthe format prescribed in Annexure-VII, to the Recruitment Notification.It is the argument of the appellant that paragraph-4 of the “importantinstructions to candidates” in the Recruitment Notification made itclear that certificates in respect of these claims should be in the formatprescribed. Paragraph 4 reads as follows:- “4. Candidates seeking reservation benefits as SC/ST/OBC/ExS must ensure that they are entitled to such reservation asper eligibility prescribed in the Notice. They should also bein possession of the certificates in the format prescribed byGovernment of India in support of their claim when the copies AB

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Aof the certificates will be sought after the WrittenExamination.”

46. The High Court rejected the contention of the appellant on theground that what is of importance is the substance and not the form andthat a certificate holder has no control over the format of the certificate.B

47. Defending the judgment of the High Court, it is contended bythe learned counsel for the respondents that so long as the status of therespondents is not disputed by the Staff Selection Commission, it is notopen to them to raise hyper-technical objections on the basis of the formatin which the certificate is produced. This is especially so when theCcandidates have no control over the authorities who are competent toissue the certificates. Therefore, the learned counsel for the respondentssubmitted that the order of the High Court in respect of the candidatesbelonging to OBC category, does not call for any interference.

48. It is true that the power to issue caste certificates vests withDthe officers of the State Government and that there is no uniformity inthis regard. Therefore, some leverage has to be given.

49. But the case of the appellant in the above appeal is that theindication regarding non-creamy layer status in the caste certificate isone of substance and not of form. The very eligibility to seek the benefitEof reservation would depend upon the non-creamy layer status.

50. However, the respondents have filed as Annexure R-8, alongwith their application for vacating the stay (I.A.No.76255 of 2018), acaste certificate which actually contains a declaration about the non-creamy layer status of one of the respondents. On the basis of thisFcertificate it was contended by the learned counsel for the respondentsthat the certificate was actually in the format prescribed in Annexure-VII to the Notification.

51. But we do not know whether what is produced before us asAnnexure R-8 along with I.A.No.76255 of 2018 was the caste certificateactually produced by that respondent. If this is the certificate that he hadGactually enclosed to his application, there would have been no occasionfor the High Court to examine whether the objection relates to substanceor mere form. At this level, in an appeal before the highest Court, it is notpossible for us to look into this question of fact. This is especially sosince the recruitment relates to uniformed services, where physical fitnessHof the incumbents is of utmost importance. A period of more than 10

years have now passed from the date of Notification. Therefore, at thisstage it is not possible to enter into disputed questions of fact and grantrelief to those two respondents.

52. In view of the above, these appeals are also liable to be allowed.But before we do so, we must deal with one last contention of Mr.Siddharth Dave, learned senior counsel for the respondents. Inviting ourattention to the fact that by the order impugned, the High Court disposedof 15 writ petitions, but the appellants have chosen to file only one appealagainst one of those writ petitions. It was contended by the learnedsenior counsel that after having allowed the common order passed inother writ petitions to attain finality, it is not open to the appellants toblow hot and cold.

53. In normal circumstances, the above argument would havereally appealed to us as it is legally well founded. But in this case evenadmittedly some of the petitioners who approached the court have beengranted relief, due to the revision of Merit List. It means that each of thecandidates who were before the High Court had some distinguishablefeature and some of them got the relief even from the appellants.Therefore, the contention that the appellants cannot blow hot and cold inrespect of a few candidates may not hold water.

54. Therefore, the appeals are allowed and the impugned order ofthe High Court is set aside. There will be no order as to costs.

Devika Gujral

Appeals allowed.

(Assisted by : Mahendra Yadav, LCRA)

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