High Court · 2012

Heard Mr. R.P. Sarma, learned Sr. counsel assisted by Mr. B. Ramchiary, learned counsel for the petitioners as well as Mr. JMA Choudhury, learned, lear ned counsel for the respondents. I have also heard Mr. M. Bhagawati and Ms. B. S inha, learned CGC. I have also heard the learned counsel appearing for the priva te respondents. Learned counsel for the petitioner submits that as per the own showing o f the respondents, the appointments having been made in respect of the ST catego ry candidates who have secured 49 and above marks, on the other hand, 43 being t he cut off marks for the general category candidate, the St category candidates securing 49 marks and above ought to have categorised as general category candi dates and in the vacant slots under ST category candidates the petitioners being ST category candidates, ought to have accommodated. On the other hand, both Mr. JMA Choudhury and Mr. M. Bhagawati and Ms. B . Sinha, learned counsel for the respondents submits that the ST category candid ates having come to the selection through relaxation in respect of physical stan dard age etc., there cannot be any comparison of marks secured by them with tha t of general category candidate, who are without any relaxation of standard. It is submitted that separate lists in respect of the general category and ST can didates coming through the relaxation standard have been prepared. Learned counsel for the private respondents submits that the petitioners having already availed the benefit of relaxation as ST category candidates apart from general reservation, cannot claim further relaxation in comparison to general ca tegory candidates who did not come through any relaxation mode. He further submi ts that if the argument made by the learned counsel for the petitioners is to be accepted and the select list is recasted, the persons who have already been app ointed and/or awaiting appointment, will be adversely affected and thus they bei ng not the party respondents, no adverse order can be passed against them. I have considered the submission made by the learned counsel for the par ties. The same issue was raised in the Review Petition No. 54/2011 arising out o f W.P.(C) No. 4420/2010 (Shri Nripen Deka & 2 ors. vs. Union of India and ors.) As in the instant case in the said review petition also the following grounds ha d been urged: (cid:28)(A) That due to the irregularity/anomalies committed by the respondents in prep aring the said impugned select list, the similarly situated other deprived non-s elected candidates have already filed analogous writ petitions before this Hon’b le High Court, vide W.P.(C) No. 3725/2010 and W.P.(C) No. 6344/2010 and consider ing on the prima facie material facts, this Hon’ble High Court was pleased to pa ss an interim order directing the respondent authorities not to allow the select ed candidates to join to the post of Constables (GD) in CRPF without leave of th is Hon’ble Court in the said writ petition staying, vide Interim Order dated 30. 06.2010 passed in W.p.(C) No. 3725/2010, Shri Suchi Banoary & 31 ors. vs. Union of India & ors. However, as approached by the respondents, this Hon’ble Court wa s pleased to review/modify the said interim order with the direction to the resp ondents, the Union of India at liberty to fill up the remaining post of Constabl e (GD) leaving aside 34 number of posts, i.e. 32 nos. against the writ petition, W.P.(C) No. 3725/2010 and 2 nos. against the W.P.(C) No. 6344/2010 vide order d ated 20.12.2010 passed by this Hon’ble Court in w.p.(C) No. 3725/2010. The said analogous writ petitions now awaiting for final hearing. (cid:29) In the said proceeding an additional affidavit was filed by the responde nts clarifying the position. In the said affidavit it was stated thus: (cid:28)2. That this deponent begs to stage that while selecting candidates for appoint ment in the post of Constable (GD) in CRPF, a primary list of candidate who are found to be medically fit is prepared in descending order of the marks obtained in the written examination. Herein, the candidates obtaining higher marks are p laced over candidates scoring lower marks. Thereafter, these candidates, accordi ng to their merit positions, who are found to be qualified without availing any relaxation with respect of their age, height, chest, weight etc. measurements ar e enlisted as General Category Candidates for the purpose of selection/recruitm ent. However, candidates who belong to reserve category and who requires to avai l (to overcome any shortcoming) any or some of the relaxations entitled to him, are categorised according to the reserved category they belong to. Accordingly t he names of these candidates availing such a relaxation are shifted to a separat e list of that particular reserved category. Thus separate merit lists for reser ved category candidates are prepared in order of the marks obtained in the writt en examination. Following the same manner, a separate list of ST reserved catego ry candidate is also prepared for those who avail relaxations.

3. That in the instant selection process which is under challenge before this Ho n’ble High Court, a similar process was followed. While doing so, it was found t hat a large number of ST candidates had scored comparatively good marks in the w ritten examination but failed to meet the minimum physical standards and therefo re had to avail the relaxations entitled to them, either in age, height, chest, weight etc. measurements or in all. These candidates were accordingly placed in the list meant for reserved ST candidates. This was also done in the order of me rit among the reserved ST category candidates. While selecting these ST category candidates with comparatively good marks in written examination but availing re laxations available to them, the total number of vacancies meant for the ST rese rved candidates got exhausted with the last ST category candidate so selected sc oring 49 marks.

4. That during the instant selection process, the cut-off marks for General Cate gory was 43. Thus although a large number of St category candidates had scored m ore than 43 marks, yet because of their shortcomings in their physical standards they could not be selected. Herein it is worth mentioning that all candidates w ho had scored 43 marks and above, and have not availed any relaxation, irrespec tive of the category they belong to, have all been selected against General vaca ncies. But however, if thy were found with any shortcoming which requires them t o avail relaxations, then they had to compete with the other reserved category c andidates availing relaxations, for findings a place in the reserved list. In th e instant case, since the total number of vacancies reserved for ST candidates a vailing relaxations were already filled at 49% marks and vacancies were exhauste d, therefore many candidates scoring more than 43% marks failed to qualify thems elves from being selected. Had the ST vacancies not been exhausted, the same cou ld have accommodated candidates scoring even less than 43% marks or on simply sc oring the pass marks. Mr. R.P. Sarma, learned counsel for the petitioners referring to the decisions r eported in (1996) 3 SCC 253 (Ritesh R. Sah vs. R. Y.L. Yamul and ors.); (2007) 8 SCC 785 (Rajesh Kumar Daria vs. Rajasthan Public Service Commission and ors.); (1995) 2 SCC 745 (R.K. Sabharawal and ors. vs. State of Punjab and ors.) and 199 2 Supp (3) SCC 217 (Indra Sawhney and ors. vs. Union of India and ors.), submits that once the petitioners have come to the selection, may be through relaxation and having qualified on merit, they are to be treated at per with general cate gory candidate. All the decisions are on the principle that the candidates belon ging to the reserved category candidates who could otherwise compete on open mer it, should be treated as open category candidate for the purpose of computing pe rcentage of reservations. Same is noy the case in hand. In the instant case, but for the relaxation standards provided to the reserved category candidates, they could not even compete in the selection. Relaxation provided in the matter of p hysical standards vis a vis the relaxation provided to the reserved category can didate cannot be treated at per. In the instant case, the petitioners could come to the selection zone only on relaxation of physical standards including age, p hysical fitness etc. The said category of candidates belonging to the ST categor y, was categorised in a separate category other than the general category candid ate who could come to the selection without any relaxation. Appointments have be en made on the basis of the cut off marks fixed for both the categories. In suc h a situation, the decisions on which Mr. R.P. Sarma, learned counsel for the pe titioners has placed reliance are not applicable. In view of the above, I do not find any merit in the writ petitions and accordin gly they are dismissed.