Court No. - 36
Case :- WRIT - A No. - 8649 of 2021 Petitioner :- Divya Gautam Respondent :- Union Of India And Others.
Counsel for Petitioner :- Jata Shankar Pandey
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Sri Bal Mukund, learned Standing Counsel for the Union of India.
Petitioner is before this Court with a request commanding the respondent no. 2 and 3 to select the petitioner as she comes in merit list and the vacancy is still existing.
Identical issues have been raised in bunch of the matters leading Writ-A No. 3973 of 2021 (Prashant Pandey Vs. Union of India And Another), wherein, this Court has dismissed all the writ petitions by a detailed judgment and order dated 20.7.2021 to the following effect.
" 1. Heard Shri Laloo Yadav and Shri Kranti Kiran Pandey, learned counsel for the petitioners and Shri S.P. Singh, learned Additional Solicitor General of India assisted by S/Shri Sanjeev Kumar Rai, Satendra Kumar Upadhyay, Sandeep Kumar Srivastava, Harsh Vardhan Choubey, Rajesh Kumar Vidyarthi, Prem Shankar Prasad, Satya Prakash Singh and Smt. Archana Srivastava for the respondents.
2. In this group of cases, the petitioners are seeking direction to the respondents to fill up all the unfilled vacancies of Constable (General Duty) in Central Armed Police Forces (CAPFs), NIA & SSF, and Rifleman (GD) in Assam Rifles (AR) Examinations-2018 and give them one more opportunity for selection on the post of Constable (GD).
3. For the sake of convenience, the facts of Writ A No.3973 of 2021 are being noted below:-
4. Prashant Pandey is before this Court with the following prayers:-
"A) A writ, order or direction in the nature of mandamus commanding the respondents to fill all the unfilled vacancies of Constable (GD) Exam- 2018 (unfilled ex-servicemen seats about 5809 and others) and give him (petitioner) one opportunity for selection of post of Constable (GD) Exam- 2018.
B) A writ, order or direction in the nature of mandamus commanding the respondents for accepting Clause 2 of Note-II of advertisement of Constable (GD) Exam-2018.
C) A writ, order or direction in the nature of mandamus commanding the respondents to issue second merit list of Constable (GD)-2018 for full post of vacancies (vacancies are 60210)."
5. Brief background of the case is that the Staff Selection Commission (in short, SSC) published an advertisement in the Employment News on 21.7.2018 for filling up 54,953 vacancies of Constable (GD) in Central Armed Police Forces (CAPFs), NIA & SSF, and Rifleman (GD) in Assam Rifles (AR) Examinations-2018 and all the applications were to be accepted by online mode only. The Computer Based Examination (CBE) was to be conducted by the SSC in Hindi and English, which was to be followed with Physical Efficiency Test/Physical Standard Test, Detailed Medical Examination/Review Medical Examination and on the basis of eligibility documents to be furnished by the candidates subject to their verification. The minimum qualification for appointment is Matriculation or 10th pass from a recognized Board or University and the candidates were to be between 18 to 23 years of age as on 01.08.2018. Relaxation in age limit was available as per the Government Policy for SC/ST, O.B.C. and Ex-servicemen cadre and is specified in para 4-B of the advertisement. The petitioners belonging to different categories were allowed to register themselves between 21.07.2018 to 20.08.2018.
6. Subsequently, number of posts indicated originally in the advertisement in question were enhanced. The SSC issued force-wise consolidated revised vacancies for Constable (GD) in CAPFs, NIA, SSF and Rifleman (GD) in Assam Rifles Examination-2018 on 16.12.2019. The aforesaid examination was conducted by the SCC from 11.2.2019 to 11.3.2019 in Computer Based Mode and total 30,41,284 candidates including the petitioners appeared in the said examination. On the basis of result of the Computer Based Examination, total 5,54,903 candidates (Female-77,369 and Male-4,77,534) were shortlisted for appearing in the Physical Efficiency Test (PET)/Physical Standard Test (PST). The result of PET/PST was declared on 17.12.2019 and 04.3.2020, wherein total 1,52,226 candidates (Female-20750 and Male-1,31,476) were declared to be qualified for the Detailed Medical Examination (DME). On the basis of various Court orders, 39 more candidates also got permission for DME and hence, medical examination of 1,52,265 candidates was conducted by the CAPFs from 09.01.2020 to 13.2.2020 and 24.8.2020 to 12.9.2020. The Review Medical Examination (RME) was conducted from 14.9.2020 to 10.11.2020. A final select list has been published on 21.01.2021, wherein the petitioners were not shown to be selected, whereas 6096 seats belonging to Ex-servicemen are lying vacant.
7. In this backdrop, learned counsel for the petitioners submits that the applications were invited on 17.8.2018 for the appointment on 54,953 posts of Constable (GD). Number of posts indicated originally were enhanced subsequently to 72309 and out of enhanced vacancies, the respondents failed to fill up 5809 seats of ex-servicemen. To fill up all those posts, cut of marks should have been reduced. The candidature of the petitioners was considered against the vacancies in the State of Bihar and Uttar Pradesh under Regional Centre of Commission at Prayagraj. The respondents have committed grave illegality in not filling up all the posts for which the advertisement was issued. It is submitted that if the posts so remain vacant would have been filled up, the petitioners are liable to be appointed and as such, this Court should come for rescue and reprieve the petitioners.
8. Per contra, learned Additional Solicitor General of India appearing for the respondents submits that the SCC published the advertisement in question for recruitment to the post of Constable in CAPFs, NIA & SSF and Rifleman (GD) in Assam Rifles Examination, 2018. The final result of the said examination was declared on 21.01.2021 and also published write up of the final result containing details of marks obtained by the last selected candidates i.e. State-wise, CAPF-wise, category-wise, area-wise, allocation of force to the recommended candidates etc. The petitioners have also appeared in the said examination. However, they failed to find place in the list of recommended candidates due to low merit as marks obtained by the petitioners were less than the marks obtained by the last selected candidates (cut of marks) of their respective category in their respective State. All the general area vacancies earmarked for States of Uttar Pradesh and Bihar have already been filled up with the eligible candidates, who have scored more marks than the petitioners in their respective category. In para-2 of the notice of the said examination, it was clearly mentioned that these are tentative vacancies. It was also mentioned that 10% vacancies are earmarked for Ex-Servicemen. If suitable Ex-servicemen candidates are not available, vacancies reserved for Ex-servicemen will be filled up by non-ex servicemen candidates of respective categories. The vacancies of ex-servicemen are horizontal vacancies and there are no separate vacancies for ex-servicemen.
9. Learned counsel for the respondents further submits that the SSC is a Recruiting Agency. It conducts the examination of Group 'B' (Non- Gazetted) and Group 'C' posts in various Ministries/Department of Government of India and Subordinate Officers, on the basis of Recruitment Rules, vacancies position etc. indented by the user Ministries/Department of Government of India. The work of the SSC is confined to selection of suitable candidates for the posts indented by the User Departments by competitive examinations. As the SSC is a recruiting agency, selecting the candidates on the basis of RRs provided by the User Departments, it has no role in maintenance of vacancy roster. Accordingly, the SSC declared the result on 21.1.2021 against the final indent placed by the user Ministry i.e Ministry of Home Affairs and all the vacancies earmarked to Bihar and Uttar Pradesh State have already been filled up by the eligible candidates. In support of his submission, he has placed reliance on the order passed in dated 18.3.2021 passed in Writ A No.2220 of 2021 Ayush Kumar and 7 others vs. Union of India and 2 others1 as well as the judgment and order passed in Amit Kumar vs. Union of India and another2 whereby this Court had proceeded to dismiss the said writ petitions. He has also placed reliance on the judgment dated 12.10.2020 passed in Special Appeal Defective No.962 of 2018 (Vinay Kumar Singh and 360 others vs. Union of India and 2 others3. He has further placed reliance on the order passed in Municipal Corporation of Delhi vs. Surendra Singh and others4 wherein the Apex Court had proceeded to dismiss the Civil Appeal with following observations:-
"23. Any undue sympathy shown to the private respondents herein so as to direct their selection despite not possessing the desired merit would amount to interference with the right of the employer to have suitable candidates and would also cause injustice to the other candidates who had participated in the process and had secured a better percentage of marks than the private respondents herein but lower than the cutoff percentage and had accepted the legal position with regard to the employer's right in selection process. In such event providing the benefit to the private respondents herein by applying the principles laid in the case of U.P. Jal Nigam (supra) as done by the Division Bench would not be justified.
24. In that background the order dated 03.11.2008 passed by the Division Bench in L.P.A.No.65/2008 is not sustainable and the same is accordingly set aside.
25. The appeal therefore succeeds and is accordingly allowed with no order as to costs."
10. The Court has occasion to peruse the record in question and finds that the SSC conducted the aforesaid examination from 11.2.2019 to 11.3.2019 in the Computer Based Mode. A total of 30,41,284 candidates appeared in the said examination. On the basis of the result of the Computer Based Examination, total 5,54,903 candidates (female-77,369 and male- 4,77,534) were shortlisted for appearing in the PET/PST. The result of PET/PST was declared on 17.12.2019 and 04.3.2020, wherein total 1,52,226 candidates (female-20750 and male-131,476) were qualified for the DME. On the basis of various court orders, 39 more candidates got permission for DME and hence, medical examination of 1,52,265 candidates was conducted by CAPFs. The DME was conducted by the CAPFs from 09.1.2020 to 13.2.2020 and 24.8.2020 to 12.9.2020 and the Review Medical Examination was conducted from 14.9.2020 to 10.11.2020. The final merit has been prepared on the basis of normalized marks scored by the candidates in the Computer Based Examination by using the formulated published by the Commission through notice dated 07.2.2019. The select list has been prepared as per All India vacancies and State-wise vacancies with further reservation for candidates of Border Districts/Naxal or Militancy affected Districts within the State. The allocation to NIA, SSF and CAPFs has been done as per merit-cum- preference of the candidates subject to availability of vacancies in State/UT concerned, reservation for Border district and Naxal/Militancy affected districts and category-wise reservation. The final result of the said examination was declared by the SCC on 21.1.2021 only after adjusting the unfilled vacancies of Ex-servicemen with the candidates of respective category. The petitioners appeared in the said examination but their names could not find place in the list of finally recommended candidates due to lower marks than the marks obtained by the last selected candidate of their respective categories and States. All the 6096 vacancies allotted to Bihar and 5754 vacancies allotted to Uttar Pradesh State have already been filled up with the eligible candidates and no vacancy remains vacant in Bihar as well as in Uttar Pradesh State. The unfilled vacancies belong to candidates of other States and not for Bihar/Uttar Pradesh State and hence, the petitioners have no right to claim for these vacancies reserved for other States.
11. In similar circumstance, learned Single Judge of this Court had proceeded to dispose of the writ petition filed by Dharmendra Kumar and 5 others vs. Union of India and 2 others5 with certain directions. The same was subjected to challenge in Vinay Kumar Singh's case (supra) and a Division Bench of this Court vide order 12.10.2020 had dismissed the aforesaid appeals with following observations:-
"The learned Senior Counsel is fair to admit that merit list was drawn unit/region wise but the argument is that if vacant posts remain in one unit or the region, the respondents were under obligation to divert the post so that no vacancies remain. In that regard, the figure of vacant post has been given but we find that in the light of the Government Order quoted above, the diversion of the posts was not permissible for the vacancies of North-East region, Jammu and Kashmir, Naxal and Militancy affected areas.
In the light of the Government decision, petitioner-appellants cannot claim diversion of the posts as a right. It is more so when it was not so provided in the advertisement so as to claim it as a matter of right. Diversion of posts from one unit to another was not for North-East region, Jammu and Kashmir, Naxal and Militancy affected areas.
Accordingly, if the petitioner-appellants were not adjudged against the vacant post of those areas, no illegality was committed by the non- appellants.
The issue now remains regarding bifurcation of the posts on its increase. Senior Counsel submits after the increase of the posts from 42,000 to 72,309 posts, bifurcation of post of different unit/regions was not made and accordingly, the suitability of the petitioner-appellants should have been adjudged against the increased posts.
As against the aforesaid, the counsel for the respondents has clarified that after initial advertisement, posts were increased based on the information about vacant post sent by different units/regions. Taking into consideration the vacancies in different units and organizations, the merit list was drawn with cut-off marks. The non-appellants were having details of the vacancies of different regions. The recruitment by Regional Centre of Commission Allahabad was limited to statue of Bihar and U.P. with State code 5 and for State of U.P. the code was 33. The petitioner- appellants applied to the vacancies notified by the Commission at Allahabad. It was not including the post for Naxal and Militancy affected area. The posts were diverted for other States but was not permitted for Jammu & Kasmir, North-East region, Naxal and Militancy affected area where only it remains vacant.
Accordingly, the petitioner-appellants have no right to seek appointment against the post remained vacant in the State of Jammu & Kashmir, North-East region, apart from the Naxal and Militancy affected areas. The denial of appointment to the petitioner-appellants in those areas cannot said to be illegal. It is settled preposition of law that mere standing in the merit or remaining successful in the recruitment does not give right to seek appointment. In this case petitioner was not even coming in merit.
No discrimination or illegality has been committed by the respondents in not filling of the post under different Commissions. The issue in that regard has been addressed by the learned Single Judge.
It is even in reference to 28,044 posts remained vacant. The post meant for Naxal and Militancy affected areas were separate even for the State of U.P. and not open for diversion to seek appointment.
Accordingly, the right claimed by the petitioner-appellants for the appointment on certain posts in the Naxal or Militancy affected ares in the State of U.P. cannot be accepted. Those posts were separately identified and notified hence right cannot be claimed unless an application for appointment in those areas would have been made. The posts were not otherwise diversable in the light of the order of the Government of India.
Taking into consideration the aforesaid, we do no find any reason to cause interference in the impugned judgment of the learned Single Judge and accordingly all the appeals fail and are dismissed with no order as to costs."
12. Admittedly, the petitioners failed to find place in the list of recommended candidates due to their low merit as marks obtained by them were less than the marks obtained by the last selected candidate of his respective category and the same has also been accepted by the petitioners themselves in the writ petition that the marks obtained by them was less than the cut off marks.
13. In the aforesaid facts and circumstances, the Court is not inclined to grant any relief to the petitioners.
14. Consequently, all the writ petitions are dismissed. "
In view of the above, following the same set of reasoning, the present writ petition also stands dismissed in terms of Prashant Pandey (supra).
Order Date :- 29.7.2021 A.K.Srivastava Digitally signed by JUSTICE MAHESH CHANDRA TRIPATHI Date: 2021.07.29 17:52:14 IST Reason: Document Owner Location: High Court of Judicature at Allahabad