Sri Arpan Chowdhury v. The Union of India and 5 Ors

Page 9 of 40

2. The common question as referred above is the petitioners who have secured marks based on which, they were supposed to be selected under the unreserved category but denied the selection on the ground that they belong to the reserved category, whether that denial is sustainable? In view of the policy that has been laid down in the notice of the Staff Selection Commission published on 21.07.2018 [Annexure-A to the writ petition], which reads inter alia that SC, ST, OBC and ExS candidates who qualifies on the basis of relaxed standards viz. age limit, height and chest measurement, experience or qualification, permitted number of chances, extended zone of consideration larger than what is provided for general category candidates etc. irrespective of his/her merit position, such SC, ST, OBC and ExS candidates is to be counted against the reserved vacancies only. It has been also laid, insofar as cases of ex service man are concerned, that deduction of the military service rendered from the age of ex service man is permissible against the reserved or unreserved posts and such exemption cannot be termed as relaxed standards as regard the age, post and such exemption shall not be termed as relaxed standard. Contrasted against the said proposition, it has been further provided in the said policy of selection that SC, ST, OBC and ExS candidates who are selected on their own merit without relaxed standards along with candidates belonging to other communities will not be adjusted against the reserved share of vacancies. Such candidates will be accommodated against the unreserved vacancies as per their position in the overall merit list. The reserved vacancies will be filled up separately from against the eligible ST, SC, OBC and ExS candidates.

Page 10 of 40

3. All the writ petitioners have claimed that though they belong to SC, ST and OBC but they have not availed any relaxation of standards provided for SC, ST, OBC and ExS candidates and hence, they are liable to be considered for selection on their own merit without relaxed standards along with the candidates belonging to other communities. They shall not only be adjusted against the reserved share of vacancies, they are entitled to be considered against the unreserved vacancies as per their position in the overall merit position. Per contra, the respondents have clearly taken a position that the petitioners have availed the relaxed standard and hence, their cases cannot be considered or accommodated against unreserved vacancies as per their position in the overall merit list.

4. All the petitioners applied to the Staff Selection Commission (SSC for short) in response to the notice under No.F.3/2/2017-P&P-I dated 21.07.2018 for the post of Constables (GD) in Central Armed Police Forces (CAPFs for short), NIA, SSF and Rifleman (GD) in Assam Rifles (AIA for short). As per the recruitment scheme, framed by the Ministry of Home Affairs and SSC, it has been declared that the recruitment process will comprise of the computer based examination, physical efficiency test, physical standard test and medical examination. The minimum essential educational qualification as on 01.08.2018 was declared to be matriculation or 10^thclass passed from a recognized board/university. As per the advertisement, the age limit so given was 18 to 23 years as 01.08.2018, mentioning further that the candidates should not have been born earlier than 02.08.1995 and not later than 01.08.2000 with relaxation

Page 11 of 40

for five years for SC/ST candidates and three years for OBC candidates. The petitioner was eligible to apply for those posts as advertised by the SSC.

5. The petitioners have categorically asserted in their writ petitions that though they belong to reserved category but they have not availed any relaxed standard in respect of age, height, chest measurement or in other aspects. As stated already, it has been laid down in the advertisement published by the SSC under heading mode of selection (see clause XIII) that SC, ST, OBC and ex-service candidate who are selected on their own merit without relaxed standards along with candidates belonging to the other communities will not be adjusted against the reserved vacancies, but in the general category as per their position in the overall merit list. The reserved vacancies will be filled up separately from amongst the eligible ST, SC and OBC and the ex-service candidates. All the petitioners have appeared in all the tests as noted above. After completion of the entire selection process, the notification No.07/01/2018- C-1/2(Vol-II) had been issued by Staff Selection Commission (SSC) declaring the State wise, post wise and category wise last cut-off mark of the qualified candidates. According to the petitioner, from the said notification, it can be gathered that for Post Code „A" for UR candidates cut-off mark is 39.98149, for Code „B" cut-off mark is 41.29914, for Code „C" cut-off mark is 41.82010, for Code „D" cut-off mark is 39.66236, for Code „E" cut-off mark is 39.32135 and for Code „F" cut-off mark is 50.79069.

6. From the pleadings what has surfaced is that the disputed question is confined to height or chest measurement of the petitioners who have appeared from the North Eastern Region. Under the heading, physical standard

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test under part-III of the said advertisement issued by SSC, a general relaxation irrespective of category of candidates from the North Eastern Region has been provided in the following manner :

III. Physical Standard Test (PST) :

a. Height Height (in cms) General, SC & OBC candidates Male Female (except those mentioned below) 170 157

Relaxations :

……….. ………. ………. ……….. ………. ………. ………. ………. ………. The minimum height for the 162.5 152.5 candidates hailing from North Eastern States of Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura

The post code as referred above are available in para 11(viii) of the recruitment advertisement and those are as follows :

(a) BSF(A)

(b) CISF(B)

(c) CRPF(C)

(d) SSB(D)

(e) ITBP(E)

(f) Assam Rifles(F)

(g) NIA(G)

(h) SSF(H)

* The post code is in Capital Letters.

7. The relevant provisions in respect of adjustment against the reserved vacancies or the unreserved vacancies are also reproduced from the said advertisement hereunder :

11(xiii). SC, ST, OBC and ExS candidates, who are selected on their own merit without relaxed standards, along with candidates belonging to other communities, will not be adjusted against the reserved share of vacancies. Such candidates will be accommodated against the reserved share of vacancies. Such candidates will be accommodated against the unreserved vacancies as per their position in the overall Merit List. The reserved vacancies will be filled up separately from amongst the eligible SC, ST, OBC and ExS candidates.

11(xiv). SC, ST, OBC and ExS candidate who qualified on the basis of relaxed standards viz. age, limit, height and chest measurement, experience or qualifications, permitted number of chances, extended zone of consideration larger than what is

Page 13 of 40

provided for general category candidate etc., irrespective of his/her merit position, such SC, ST, OBC and ExS candidates is to be counted against reserved vacancies. In so far as cases of ex- serviceman are concerned, deduction of the military service rendered from the age of ex-servicemen is permissible against he reserved or unreserved posts and such exemption cannot be termed as relaxed standards in regard to age."

8. Ms. R. Purakayastha, learned counsel as well as Mr. S. Bhattacharjee, learned counsel appearing for the petitioners have quite emphatically stated that none of the petitioners did take any relaxation except the relaxation as provided for the North Eastern States as region. Such relaxation has been given to the UR category candidates as well. Hence, the provision that SC, ST, OBC and Ex-service candidates who are selected on their own merit without relaxed standard along with the candidates belonging to other communities will not be adjusted against the reserved share of vacancies ought to have been applied. Such candidates will be accommodated against the unreserved vacancies as per their position in the overall merit list. But the respondents have arbitrarily refused to apply the said provision. All the petitioners are entitled to be selected and recruited under the UR category in consideration of the cut-off marks as provided herein before.

9. Ms. Purakayastha, learned counsel has also referred the result sheets to demonstrate that it has been clearly shown against the petitioners that they have not availed any height relaxation. In support of her contentions, Mr. Purakayastha, learned counsel has relied on a decision of the High Court of Delhi in Hemant Pokhriyal versus Staff Selection Commission & Others

[judgment dated 01.10.2021 delivered in WP(C) No.4982/2021]. It has been observed in the said decision as follows :

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"16. In the present case the height and chest relaxations that have been availed by the Petitioner are available to all the candidates belonging to the Garhwal region. In fact, there are no height and chest relaxations provided for the candidates belonging to the OBC category in Clause 9(III) of the Notification and they are to be considered along with the General candidates.

17. Even the learned predecessor bench in the order dated 02nd August, 2021 had observed as under:-

"We are prima facie of the opinion that when Clause

11

(xiv) of the Examination Notice supra refers to Scheduled Castes (SC), Scheduled Tribes (ST), OBC and Ex- Servicemen candidates who have qualified on the basis of relaxed standards, the same refers to the relaxation by virtue of being SC, ST, OBC or Ex- Servicemen and not relaxation given to candidates from particular States/region inasmuch as the said relaxations are available to all candidates from that region/State, even those belonging to the Unreserved category."

18. This Court respectfully agrees with the said interpretation.

IF THIS COURT WERE TO ACCEPT THE ARGUMENT OF THE

RESPONDENTS IN THE PRESENT CASE, THE FACT THAT THE

PETITIONER BELONGS TO A RESERVED CATEGORY INSTEAD OF

WORKING TO HIS BENEFIT WOULD RATHER WORK TO HIS

DISADVANTAGE."

10. Mr. B. Majumder, learned Asst. S.G. appearing for the respondents has referred para-11(xiv) repeatedly by stating that in whatever means once relaxation is granted, those persons cannot be considered against the unreserved category. According to Mr. Majumder, learned Asst. S.G., unless what standard has been laid down for the general category candidates is conformed to by the persons irrespective of their status, they cannot be counted against the unreserved vacancies. He has given a further restrictive interpretation of that clause contending that those who have applied as SC, ST, OBC or ExS candidates is to be counted only against the reserved vacancies. Mr. Majumder, learned Asst. S.G. in order to nourish his submissions has further contended that as per clause-9(iii) of the said advertisement [Annexure-A to the writ petition] the physical standard has been provided for the General, SC and OBC candidates quite distinctly. The petitioners did not conform to that standard.

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According to him, Sri Arpan Chowdhury [the petitioner of WP(C)No.117 of 2021] has availed relaxation in height having the height of 164.5 cm. That apart he has scored less mark than the last selected candidate of his reserved category as he has scored only 42.214 marks.

Similarly, Sri Dipan Deb [the petitioner of WP(C)No.118 of 2021] has availed the relaxation in height having the height of 165 cm. and in chest, having measurement of 77-82 cms. Further, he has not been selected as he has scored less mark than the last selected candidates in his reserved category as he scored only 48.30345 marks.

Sri Ranjan Majumder [the petitioner of WP(C)No.119 of 2021] has availed relaxation in height having the height of 169 cm. Further, he has not been selected as he scored less mark than the last selected candidate in his category, as he scored only 43.8676 mark.

Sri Biswajit Debnath [the petitioner of WP(C)No.157 of 2021] has availed relaxation in height having the height of 168 cm. and in chest having the measure of 79-85 cms. Further he has not selected as he scored less mark than the last selected candidate in his reserved category, as he scored only 45.54297 marks.

Sri Priyabrata Debnath [the petitioner of WP(C)No.157 of 2021] has availed relaxation in height having the height of 165 cm. Further he has not been selected as he scored less mark than the last selected candidate in his reserved category, as he scored only 52.50504 marks.

Sri Gopal Biswas another writ petitioner of the said writ petition being WP(C)No.157 of 2021 has availed relaxation in chest measurement having 79-85

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cm. Further he has not been selected as he scored less marks than the last selected candidate in his reserved category. He scored only 50.73568 marks. Sri Biswajit Das another [writ petitioner of WP(C)No.157 of 2021], according to Mr. Majumder, learned Asst. S.G. he has availed relaxation in height having the height of 166 cm. Further he has not been selected as he scored less mark than the last selected candidate in his reserved category as he scored only 44.57255 marks.

Sri Prasenjit Debnath is another [writ petitioner of WP(C)No.157 of 2021]. According to Mr. Majumder, learned Asst. S.G., he has availed relaxation in height having the height of 165 cm and in chest being measured 78-83 cm. He has not been selected as he scored less marks than the last selected candidate in his reserved category, he scored only 44.5955 marks. Sri Kinkar Das, another [writ petitioner of WP(C)No.157 of 2021] has, according to Mr. Majumder, learned Asst. S.G., availed relaxation in height having the height of 165 cm and in chest measuring 78-83 cm. He has not been selected as he scored less marks than the last selected candidate from his reserved category. He scored only 44.94409 marks.

Sri Sourav Debnath, another [writ petitioner of WP(C)No.157 of 2021], has according to Mr. Majumder, learned Asst. S.G., availed relaxation in height having the height of 164 cm and in chest measuring 77-82 cm. He has not been selected as he scored less marks than the last selected candidate from his reserved category. He scored only 45.10208 marks.

Sri Maran Das another [writ petitioner of WP(C)No.157 of 2021], has, according to Mr. Majumder, learned Asst. S.G., availed relaxation in height

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having the height of 165.5 cm and in chest measuring 77-82 cm. He has not been selected as he scored less marks than the last selected candidate from his category. He scored only 42.36827 marks.

Another [writ petitioner of WP(C)No.157 of 2021] Sri Ujjal Chandra Bhowmik has, according to Mr. Majumder, learned Asst. S.G., availed relaxation in height having the height of 163 cm but he has not been selected as he scored less marks than the last selected candidate from his reserved category, he scored only 42.50887 marks.

Sri Sentu Majumder, another [writ petitioner of WP(C)No.157 of 2021] has according to Mr. Majumder, learned Asst. S.G., availed relaxation in height having the height of 166 cm and in chest measuring 78-83 cm. He has not been selected as he scored less marks than the last selected candidate from his reserved category. He scored only 40.18049 marks.

Sri Biswajit Shil, another [writ petitioner of WP(C)No.157 of 2021], has, according to Mr. Majumder, learned Asst. S.G., availed relaxation in chest measuring 77-82 cm. He has not been selected as he scored less marks than the last selected candidate from his reserved category. He scored only 39.1422 marks.

Sri Tutan Gope, another writ petitioner of WP(C)No.157 of 2021, has, according to Mr. Majumder, learned Asst. S.G., availed relaxation in height having the height of 167.5 cm. He has not been selected as he scored less marks than the last selected candidate from his reserved category. He scored only 44.76103 marks.

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Sri Subhrajit Nath [the petitioner of WP(C)No.164 of 2021] has, according to Mr. Majumder, learned Asst. S.G., availed relaxation in height having the height of 165 cm and in chest measuring 77-82 cm. He has not been selected as he scored less marks than the last selected candidate from his reserved category. He scored only 48.73294 marks.

Ms. Pratima Ghosh [the petitioner of WP(C)No.165 of 2021], has, according to Mr. Majumder, learned Asst. S.G., availed relaxation in height having the height of 153.5 cm. She has not been selected as she scored less marks than the last selected candidate from her reserved category. She scored only 45.24163 marks.

11. Thus, Mr. Majumder, learned Asst. S.G. has quite categorically contended that the petitioners cannot be adjusted against the general or unreserved vacancies as they have availed relaxation in the physical standards. For further details, Mr. Majumder, learned Asst. S.G. has referred to the reply filed by the respondents by 1 and 5. From the table of details [in the reply] of male candidates CAPFwise, Vacancy type wise [G-General, B-Border Districts, Naxal militancy affected Districts, Category wise code [1-S, 2-ST, 3-ExS, 6-OBC, 9-UR] of the vacancies, number of filled vacancies and lowest marks of the last selected candidate, marks secured in part A & part B by the last selected candidate against the corresponding vacancies are available. The said table as referred to as Tripura(33) is reproduced hereunder :

Tripura (33)

Cut-off Details

Post Area Category Vacancies Filled Marks Part-A Part-B Date of Birth Code marks marks (DD-MM-

YYYY)

A B SC 20 20 45.58708 9 11 20.11.1990

Page 19 of 40

A B ST 38 38 38.98557 14 8 17.01.1997

A B ESM 15 0 - - - -

A B OBC 2 2 60.22915 15 17 01.07.1995

A B UR 61 59 40.04774 15 7 20.11.1998

A G SC 12 12 51.56570 13 7 02.02.1992

A G ST 24 24 44.57504 13 11 15.01.1998

A G ESM 9 0 - - - -

A G OBC 2 2 62.30444 19 9 02.02.1995

A G UR 39 39 44.51953 14 11 09.08.1999

B G SC 11 11 47.40846 16 9 05.10.1992

B G ST 20 20 38.82679 7 9 02.12.1996

B G ESM 8 0 - - - -

B G OBC 2 2 63.20124 18 9 30.01.2000

B G UR 35 35 41.29914 12 8 02.02.1996

C G SC 17 17 45.94775 8 11 22.02.1994

C G ST 56 56 37.42682 11 6 12.01.1994

C G ESM 15 0 - - - -

C G OBC 2 2 65.47499 19 12 09.11.1994

C G UR 52 52 41.82010 13 11 19.12.1998

D G SC 8 8 45.94207 8 12 14.05.1999

D G ST 47 47 35.98584 12 4 12.10.1995

D G ESM 10 0 - - - -

D G OBC 1 1 73.96193 21 13 12.08.1993

D G UR 22 22 39.71972 15 6 19.02.1999

E G SC 3 3 45.33947 11 10 23.01.1995

E G ST 5 5 37.25321 7 8 10.06.1993

E G ESM 2 0 - - - -

E G UR 8 8 39.39076 11 8 03.12.1998

F G SC 3 3 54.14019 13 12 04.01.1997

F G ST 5 5 44.08125 9 8 10.06.1994

F G ESM 3 0 - - - -

F G UR 9 9 50.79069 13 6 15.03.1999

12. Mr. B. Majumder, learned Asst. S.G. has also referred to the para- 8 of the reply filed by the respondents No.1 and 5 where it has been asserted in response to para-2.6 of the writ petition as follows :

"…….. it is submitted that as per provisions contained in Para No.(XIII) of SSC Notification, SC, ST, OBC and ExS candidates who are selected on their own merit without relaxed standards, along the candidates belonging to other communities, will be adjusted against the reserved share of vacancies. Such candidates will be accommodated against the UR vacancies as per their position in the overall merit list."

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As the respondents contended that relaxations as above were availed, the petitioners could not find their place in the final merit list drawn by SSC. The allegations of impropriety have denied.

13. But Mr. Majumder, learned Asst. S.G. has contended that the petitioners secured the less marks obtained by the last selected candidate in the merit panel for the reserved category. The petitioners are not entitled to be considered on own merit. Per contra, it has been asserted that the petitioners would have been accommodated and adjusted against the unreserved vacancies. The category-wise or the logical wise relaxation, are different. Mr. Majumder, learned Asst. S.G. has also stated that from the format of Physical Standard Test, it would be apparent that the petitioners were considered against their own reserved category. True it is that in their categories they were found fit for their confirming to their physical standard after relaxation. But after general relaxation as provided for North Eastern Region, the petitioners were at par with the general category candidates. He has repeated that relaxations availed by the petitioners are in height and in chest.

14. Ms. R. Purakayastha, learned counsel appearing for the petitioners has seriously contested the claim of Mr. Majumder, learned Asst. S.G. contending that the relaxation granted for the North Eastern Region is a relaxation for all including the General(UR) category candidates and all the petitioners do conform to the physical standard after such relaxation given for being from the North Eastern Region. They on the strength of their merit, would have been appointed against the vacancies earmarked for general category as they had not availed any relaxation for the reserved category candidates. All the

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petitioners, after the Computer Based examination (CBE) were declared qualified for appearing in the physical efficiency test and physical standard test without any relaxation.

15. To repel the contentions that the petitioner secured less mark than the last person appointed on the merit panel, Ms. Purakayastha, learned counsel has referred to the following statements made by the petitioner in their rejoinder :

"Be it stated here that for post Code A for UR candidate cut off is 39.98149, for Code B cut off is 41.29914, for Code C cut off is 41.82010, for Code D cut off is 39.66236, for Code E cut off is 39.32135, for Code F cut off is 50.79069. The final marks obtained by the petitioner is more than the last selected candidate of the UR category and since the petitioner had qualified the PST/PET without availing any relaxed standard in respect of age, height or chest, he is eligible and entitled as per scheme of selection to be adjusted against the UR category."

16. In view of the above position taken by the petitioners and the respondents, it becomes necessary that the relevant facts from the individual petitioners are noted briefly at the outset.

WP(C)No.117 of 2021 [Sri Arpan Chowdhury versus Union of India and Others]

17. The petitioner had appeared and cleared the written part of the examination and he was asked to participate in the Physical Standard Test [PST] and the Physical Efficiency Test [PET] for Constable (GD) in CAPFs for the year 2018. There is no dispute that the petitioner cleared PST and PET and he was asked to appear for Detailed Medical Examination [DME]. It has been stated by the petitioner that the petitioner appeared in PET/PST without availing any relaxed standard in respect of age, height or chest. In para-2.4 of the writ petition, the petitioner has averred as follows :

"(2.4) That, after completion of the entire selection process, a notification vide No.07/01/2018-C-1/2(Vol-II) had been issued

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by the Staff Selection Commission declaring the State wise, post wise and category wise last cut off of the qualified candidates. From the list it could be learnt that for Post Code A for UR candidate cut off is 39.98149, for Code B cut off is 41.29914, for Code C cut off is 41.82010, for Code D cut off is 39.66236, for Code E cut off is 39.32135, for Code F cut off is 50.79069. The final marks obtained by the petitioner is 42.214."

[Emphasis added]

18. When the final merit list along with force allocation was published on 21.01.2021 by SSC, the petitioner, to his utter dismay, found that his name was not appearing in the said list [Annexure-F to the writ petition]. Consequent thereupon, the petitioner has represented to the competent authority [the respondents] contending that the petitioner did not avail any height relaxation and hence, for his securing the marks more than the last selected person who had been selected from the general category and hence, he ought to have been selected. In this regard, the petitioner has stated that his height was measured at 164.5 whereas the height required for the candidate from Tripura is 162.5 [for UR]. The petitioner ought to have been accommodated in the general merit list. The petitioner has addressed another letter to the Regional Director, SSCNER, Chairman SSC, HQ, New Delhi on 08.02.2021 [Annexures-H and I to the writ petition]. But no response was received by the petitioner. Thus, he has approached this Court. For purpose of ready reference, comparative tables have been formed in respect of physical standard to demonstrate whether the petitioner had availed any relaxation as reserved category candidate or not :

TABLE-1

Height Height for candidate of North Eastern Region The

including Tripura petitioner"s

height

General Male Female Male (in cms.) Female (in 164.5

Category, SC, (in (in cms.)

OBC cms.) cms.)

162.5 152.5

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170 157

TABLE-2 Chest Chest for candidate of North The Eastern Region including petitioner"s Tripura chest

General Male (in Female Male (in cms.) Female (in 81-86 Category, cms.) (in cms.)

SC, OBC cms.)

80-85 Not 77-82 Not required

relevant

ST 76-81

Candidate Not

relevant

For record, it may be mentioned that the petitioner belongs to SC category.

WP(C)No.118 of 2021 [Sri Dipen Deb versus Union of India and Others]

19. The petitioner had appeared and cleared the written part of the examination and he was asked to participate in the Physical Standard Test [PST] and the Physical Efficiency Test [PET] for Constable (GD) in CAPFs for the year 2018. There is no dispute that the petitioner cleared PST and PET and he was asked to appear in the detailed medical examination [DME]. It has been asserted by the petitioner that the petitioner appeared in PET/PST without availing any relaxed standard in respect of age, height or chest. In para-2.4 of the writ petition, the petitioner has averred as follows :

"(2.4) That, after completion of the entire selection process, a notification vide No.07/01/2018-C-1/2(Vol-II) had been issued by the Staff Selection Commission declaring the State wise, post wise and category wise last cut off of the qualified candidates. From the list it could be learnt that for Post Code A for UR candidate cut off is 39.98149, for Code B cut off is 41.29914, for Code C cut off is 41.82010, for Code D cut off is 39.66236, for Code E cut off is 39.32135, for Code F cut off is 50.79069. The final marks obtained by the petitioner is 48.30345."

20. When the final merit list along with force allocation was published on 21.01.2021 by the SSC, the petitioner, to his utter dismay, found that his

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name was not appearing in the said list [Annexure-F to the writ petition]. Consequent thereupon, the petitioner has represented to the competent authority [the respondents] contending that the petitioner did not avail any height relaxation and hence, for his securing more marks than the marks of the last selected person who has been selected in the general category, he ought to have been selected. In this regard, the petitioner has stated that his height was measured at 165 whereas, the height required for the candidate from Tripura is

162.5. The petitioner ought to have been accommodated in the general merit list. After having the disclosure, the petitioner had attempted for disclosure of the reasons why he was not selected, by filing the application dated 15.02.2021 under Right to Information Act. In response, it has been disclosed to the petitioner that "since he has availed height relaxation, he has not been selected in UR category." Even the petitioner has not availed any age relaxation. Thus, he has approached this Court. For purpose of ready reference, comparative tables have been formed in respect of physical standard to illustrate whether the petitioner had availed any relaxation as reserved category candidate or not :

TABLE-1

Height Height for candidate of North The

Eastern Region including petitioner"s

Tripura height

General Male Female Male (in Female (in 165

Category, SC, (in (in cms.) cms.)

OBC cms.) cms.)

162.5 152.5

170 157

TABLE-2 Chest Chest for candidate of North The petitioner"s Eastern Region including Tripura chest measurement

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For record, it may be mentioned that the petitioner belongs to OBC category.

WP(C)No.119 of 2021 [Sri Ranjan Majumder versus Union of India and Others]

21. The petitioner had also appeared and cleared the written part of the examination and he was asked to participate in the Physical Standard Test [PST] and the Physical Efficiency Test [PET] for Constable (GD) in CAPFs for the year 2018. There is no dispute that the petitioner cleared PST and PET and he was asked to appear for the detailed medical examination [DME]. It has been asserted that the petitioner appeared in PET/PST without availing any relaxed standard in respect of age, height or chest. In para-2.6 of the writ petition, the petitioner has averred inter alia as follows :

"From the PET/PST qualifying mark sheet it is clearly evident that the height of the petitioner is 169 and the minimum height required for candidates of Tripura is 162.5 and in the said result sheet it has been clearly mentioned that the petitioner has not availed any height relaxation and therefore the petitioner is eligible to get selection under the UR category as per the Selection procedure mentioned in the Advertisement Notice. Be it mentioned here that in case of similarly situated candidates, they have treated as UR candidates and had found place in the final merit list of UR candidates."

22. When the final merit list along with force allocation was published on 21.01.2021 by the SSC, the petitioner to his utter dismay found that his name was not appearing in the said list [Annexure-H to the writ petition]. Consequent thereupon, the petitioner has represented to the competent authority [the respondents] contending that the petitioner did not avail any

Page 26 of 40

height relaxation and hence, for his securing more marks than the marks of the last selected person, who has been selected in the general category, he ought to have been selected. In this regard, the petitioner has stated that his height was measured at 169 whereas the height required for the candidate from Tripura is

162.5. It has been also recorded by the respondents that the petitioner did not avail any chest relaxation [see page-80 of the writ petition]. The petitioner ought to have been accommodated in the general merit list. After having the disclosure under Right to Information Act, the petitioner realized that his case was not properly assessed by the respondents. In response, it has been disclosed to the petitioner that "since he has availed height relaxation, he has not been selected in UR category." The petitioner has not availed any relaxation in respect of age. For purpose of ready reference, comparative tables have been prepared to illustrate that no relaxation of physical standards has availed by the petitioner.

TABLE-1

Height Height for candidate of North The

Eastern Region including petitioner"s

Tripura height

General Male Female Male (in Female (in 169

Category, SC, (in (in cms.) cms.)

OBC cms.) cms.)

162.5 152.5

170 157

TABLE-2 Chest Chest for candidate of North The Eastern Region including Tripura petitioner"s chest

measurement

General Male (in Female Male (in cms.) Female (in 80-85 Category, cms.) (in cms.)

SC, OBC cms.)

Page 27 of 40

For record, it may be mentioned that the petitioner belongs to OBC category.

WP(C)No.157 of 2021 [Sri Biswajit Debnath and Others versus Union of India and Others]

23. The petitioners had appeared and cleared the written part of the examination and they were asked to participate in the Physical Standard Test [PST] and the Physical Efficiency Test [PET] for Constable (GD) in CAPFs for the year 2018. There is no dispute that the petitioners cleared PST and PET and they were asked to appear in the Detailed Medical Examination [DME]. At the time of that examination, the petitioners were considered as the General category candidates. It has been stated by the petitioners that the petitioners appeared in PET/PST without availing any relaxed standard in respect of age, height or chest. The petitioners have further averred that in view of the marks obtained in the selection test they ought to have been considered in the general category and adjusted against the posts, ear marked for ESM category candidates which were supposed to be filled up by general category candidates. According to the petitioner, they have performed much better than the last selected candidates of the general category. For this reason, they have formed two tables. The table-1 shows the names of the selected candidates with their marks and category and the name of the force where they had been recommended, whereas the table-2 shows the marks secured by the petitioners. As the petitioners did clear all the tests including the detailed medical test, their

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non-recommendation is grossly arbitrary and against the adverted policy of selection. For purpose of reference, both the tables are reproduced hereunder :

Final List of Recommended Candidates

Following Petitioners are not Selected

24. The respondents have given elaborate reply in respect of each of the petitioners of this writ petition. For purpose of better reference, the relevant parts are reproduced hereunder :

"(xi) The petitioner Biswajit Debnath (Roll No.5601002199) is an OBC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 45.54297 marks in written examination. He has availed relaxation in height being 168 cms and chest 79 to 85 cms as such he considered in his own category (OBC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in OBC category of Tripura State. The cut off marks of the last selected OBC (Male) candidates from Tripura is as per details given below :-

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Hence, he was not selected since he had scored less mark than the last selected candidate in OBC(Male) Category of Tripura State.

(xii) The petitioner Priyabrata Debnath (Roll No.5601001236) is an OBC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 52.50504 marks in written examination. He has availed relaxation in height being 165 cms, as such he considered in his own category (OBC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in OBC category of Tripura State. The cut off marks of the last selected OBC (Male) candidates from Tripura is as per details given below :-

Hence, he was not selected since he had scored less mark than the last selected candidate in OBC(Male) Category of Tripura State.

(xiii) The petitioner Gopal Biswas (Roll No.5601011734) is an OBC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 50.73568 marks in written examination. He has availed relaxation in chest 79-85 cms, as such he considered in his own category (OBC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in OBC category of Tripura State. The cut off marks of the last selected OBC (Male) candidates from Tripura is as per details given below :-

Hence, he was not selected since he had scored less mark than the last selected candidate in OBC(Male) Category of Tripura State.

(xiv) The petitioner Biswajit Das (Roll No.5601011843) is an SC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 44.57255 marks in written examination. He has availed relaxation in height being 166 cms, as such he considered in his own category (SC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in SC category of Tripura State. The cut off marks of the last selected SC (Male) candidates from Tripura is as per details given below :-

Hence, he was not selected since he had scored less mark than the last selected candidate in OBC(Male) Category of Tripura State.

(xv) The petitioner Prasanjit Debnath (Roll No.5601010856) is an OBC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 44.5955 marks in written examination. He has availed relaxation in height being 165 cms and chest 78- 83 cms as such he considered in his own category (OBC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected

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candidate in OBC category of Tripura State. The cut off marks of the last selected OBC (Male) candidates from Tripura is as per details given below :-

Hence, he was not selected since he had scored less mark than the last selected candidate in OBC(Male) Category of Tripura State.

(xvi) The petitioner Kinkar Das (Roll No.5601012795) is an SC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 43.94409 marks in written examination. He has availed relaxation in height being 165 cms and chest 78-84 cms as such he considered in his own category (SC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in SC category of Tripura State. The cut off marks of the last selected SC (Male) candidates from Tripura is as per details given below :-

Hence, he was not selected since he had scored less mark than the last selected candidate in SC(Male) Category of Tripura State.

(xvii) The petitioner Sourav Debnath (Roll No.5601002781) is an OBC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 45.10208 marks in written examination. He has availed relaxation in height being 164 cms and chest 77- 82 cms as such he considered in his own category (OBC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in OBC category of Tripura State. The cut off marks of the last selected OBC (Male) candidates from Tripura is as per details given below :-

Hence, he was not selected since he had scored less mark than the last selected candidate in OBC(Male) Category of Tripura State.

(xviii) The petitioner Maran Ghosh (Roll No.5601005178) is an OBC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 42.36827 marks in written examination. He has availed relaxation in height being 165 cms and chest 77- 82 cms as such he considered in his own category (OBC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in OBC category of Tripura State. The cut off marks of the last selected OBC (Male) candidates from Tripura is as per details given below :-

Hence, he was not selected since he had scored less mark than the last selected candidate in OBC(Male) Category of Tripura State.

(xix) The petitioner Ujjal Chandra Bhowmik (Roll No.5601009777) is an SC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 42.50887 marks in written examination. He has availed relaxation in height being 163 cms, as such he considered in his own category (SC). As per dossier he had exercised options for

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BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in SC category of Tripura State. The cut off marks of the last selected SC (Male) candidates from Tripura is as per details given below :-

Hence, he was not selected since he had scored less mark than the last selected candidate in OBC(Male) Category of Tripura State.

(xx) The petitioner Sentu Majumder (Roll No.5601006526) is an SC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 40.18049 marks in written examination. He has availed relaxation in height being 166 cms and chest 78- 83 cms as such he considered in his own category (OBC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in SC category of Tripura State. The cut off marks of the last selected SC (Male) candidates from Tripura is as per details given below :-

SC(Border) 45.58708 No vac. No vac. No vac. No vac. No vac. Hence, he was not selected since he had scored less mark than the last selected candidate in OBC(Male) Category of Tripura State.

(xxi) The petitioner Biswajit Shil (Roll No.5701003011) is an OBC (Male) candidate from Tripura Naxal/Militancy/Border Guarding State (State code-33) and scored only 39.1422 marks in written examination. He has availed relaxation in chest 77-82 cms as such he considered in his own category (OBC). As per dossier he had exercised options for BSF(A), CISF(B), CRPF(C), SSB(D), ITBP(E), AR(F), NIA(G) & SSF(H) and not find place in merit list due to scored less marks in written examination than the last selected candidate in OBC category of Tripura State. The cut off marks of the last selected OBC (Male) candidates from Tripura is as per details given below :-

Hence, he was not selected since he had scored less mark than the last selected candidate in SC(Male) Category of Tripura State.

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The reproduced averments have not been contested by the petitioners inasmuch as their plea is based on non-availing of relaxation and for considering them under General category on the basis of inter se merit list. There is no dispute that the above petitioners had scored less mark than the last selected candidate in the reserved category they do belong.

WP(C)No.164 of 2021 [Sri Subrajit Nath versus Union of India and Others]

25. The petitioner had appeared and cleared the written part of the examination and he was asked to participate in the Physical Standard Test [PST] and the Physical Efficiency Test [PET] for Constable (GD) in CAPFs, NIA and SSF and also for Rifleman(GD) in Assam Rifles for the year 2018. There is no dispute that petitioner cleared PST and PET and he was asked to appear for Detailed Medical Examination [DME]. It has been stated by the petitioner that he appeared in PET/PST without availing any relaxed standard in respect of age, height or chest. In para-2.4 the of the writ petition, the petitioner has averred as follows :

"(2.4) That, after completion of the entire selection process, a notification vide No.07/01/2018-C-1/2(Vol-II) had been issued by the Staff Selection Commission declaring the State wise, post wise and category wise last cut off of the qualified candidates. From the list it could be learnt that for Post Code A for UR candidate cut off is 39.98149, for Code B cut off is 41.29914, for Code C cut off is 41.82010, for Code D cut off is 39.66236, for Code E cut off is 39.32135, for Code F cut off is 50.79069. The final marks obtained by the petitioner is 48.73294."

[Emphasis added]

26. When the final merit list along with force allocation was published on 21.01.2021 by the SSC, the petitioner to his utter dismay found that his name was not appearing in the said list [Annexure-F to the writ petition]. Consequent thereupon, the petitioner has represented to the competent

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authority [the respondents] contending that the petitioner did not avail any relaxation for height or chest and hence, for his securing more marks then the marks of the last selected candidate who has been selected in general category, he ought to have been selected. In this regard, the petitioner has stated that his height was measured at 165 cms vis-a-vis the standard prescribed for North East Regions being 162.5. The petitioner had the chest measurement 77-82 cms which conforms to the standard for the North East Region. As such, not considering him under General category is clear negation of the adverted principle and the law of the land. For purpose of reference, it may be noted that by e-Mails dated 08.02.2021 and 16.02.20212 [Annexure-H and Annexure-I respectively] the petitioner laid his grievance to the respondent No.4 for redress, but he has not received any response whatsoever. Thus, the petitioner has approached this Court. For purpose of ready reference, comparative tables have been formed in respect of physical standards to illustrate whether the petitioner had availed any relaxation as reserved category candidate or not :

TABLE-1

Height Height for candidate of North The

Eastern Region including petitioner"s

Tripura height

General Male Female Male (in Female (in 165

Category, SC, (in (in cms.) cms.)

OBC cms.) cms.)

162.5 152.5

170 157

TABLE-2 Chest Chest for candidate of North The Eastern Region including Tripura petitioner"s chest

General Male (in Female Male (in cms.) Female (in 72-82 Category, cms.) (in cms.)

SC, OBC cms.)

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For record, it may be mentioned that the petitioner belongs to OBC category.

WP(C)No.165 of 2021 [Ms. Pratima Ghosh versus Union of India and Others]

27. The petitioner had appeared and cleared the written part of the examination and she was asked to participate for Physical Standard Test [PST] and Physical Efficiency Test [PET] for Constable (GD) in CAPFs for the year 2018. There is no dispute that the petitioner cleared PST and PET and she was asked to appear in the detailed medical examination [DME]. It has been asserted that the petitioner had appeared in PET/PST without availing any relaxed standard in respect of age and height. In para-2.4 of the writ petition, the petitioner has averred as follows :

"(2.4) That, after completion of the entire selection process, a notification vide No.07/01/2018-C-1/2(Vol-II) had been issued by the Staff Selection Commission declaring the State wise, post wise and category wise last cut off of the qualified candidates. From the list it could be learnt that for Post Code A for UR candidate cut off is 39.98149, for Code B cut off is 41.29914, for Code C cut off is 41.82010, for Code D cut off is 39.66236, for Code E cut off is 39.32135, for Code F cut off is 50.79069. The final marks obtained by the petitioner is 48.30345."

28. When the final merit list along with force allocation was published on 21.01.2021 by the SSC, the petitioner to her utter dismay found that her name was not appearing in the said list [Annexure-F to the writ petition]. Consequent thereupon, the petitioner has represented to the competent authority [the respondents] contending that she did not avail any relaxation in height and hence, for her securing more marks than the marks of the last

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selected person who has been selected in the general category, she ought to have been selected. In this regard, the petitioner has asserted further that her height was measured at 153.5 and the minimum height for the female is 152.5. She has thus asserted that despite her non-availing of the relaxation, she was not considered under the General category (UR) as per the adverted policy and the law of the land. Similarly situated candidates, according to the petitioner, had been considered under the General category. To lay down her grievances, the petitioner had sent e-Mails dated 07.02.2021 and 17.02.2021 [Annexure-H and Annexure-I respectively] to the respondent No.4 for redress but she has not received any response from the respondents. Hence, she has approached this Court. For purpose of ready reference, comparative tables have been formed in respect of physical standard (height) to illustrate whether the petitioner had availed any relaxation as the reserved category candidate or not. It may be mentioned that the petitioner being a female candidate, there was no requirement of chest measurement :

TABLE-1

Height Height for candidate of North The

Eastern Region including petitioner"s

Tripura height

General Male Female Male (in Female (in 153.5

Category, SC, (in (in cms.) cms.) [as corrected

OBC cms.) cms.) by the

162.5 152.5 rejoinder and not

170 157 controverted by the

respondents.]

For record, it may be mentioned that the petitioner belongs to OBC category.

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29. These averments have not been disputed by the respondents. Their solitary plea as available from the reply filed on 23.06.2021 is that the petitioner since scored less marks in the written examination [in the selection process] than the last selected candidate in OBC(female) category, she has not been selected. According to the petitioner, she got more marks than the persons last selected under the General category in the selection test.

30. It is apparent that the contention of the respondents are correct when they have stated that in the particular reserved category to which they belong, the petitioner could not secure more marks than the last selected person under the said category. The contentions of the petitioners are quite definite viz.

(1) the petitioner did not avail any relaxation in the prescribed physical standards for the reserved category candidates (2) all the petitioners have scored more marks than the last person appointed under the General category including the General category (female) and (3) the admitted position is that the petitioners were not considered under the General category in terms of the adverted policy as reflected in the notice published in the employment news dated 21.07.2018 issued by the SSC [Annexure-A]. As noted, in clause-11[xiii], it has been provided that SC, ST, OBC and ExS candidates, who are selected on their own merit without relaxed standards, along with candidates belonging to other communities, will not be adjusted against the reserved share of vacancies. Such candidates will be accommodated against the unreserved vacancies as per their position in the overall merit list. The reserved vacancies will be filled up separately from amongst SC, ST, OBC and ExS candidates who had availed the relaxation standards.

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31. The general stand as taken by the respondents is that the petitioners have taken the relaxation as provided for the North Eastern Region and hence they cannot claim that they have not availed any relaxed standard. This issue has been decided by the Delhi High Court by observing in Hemant Pokhriyal (supra) that if the similar argument as projected in this case were to be accepted, then, the vary purpose of affording relaxation based on anthropological data for any particular region would have been frustrated. It has been observed in Hemant Pokhriyal (supra) that the relaxation in measurement of height and chest are available to all candidates from Garhwal region or other specified region whether the candidates do belong to reserved or unreserved category.

Having observed thus, the Delhi High Court has rejected the plea that since the petitioner belongs to OBC category [in that case] and has availed relaxation in the standards of height and chest for the region, he cannot be considered in the unreserved category, is untenable in law. When a reserved category candidate is selected on a same standard as applicable to a general category candidate, then he shall not be adjusted only against the reserved vacancies. This Court would add that such candidates would first be considered against the vacancies allotted to the general category on the basis of inter se merit and if the said candidate cannot get accommodation, then he will be adjusted against the reserved category candidate, based on the inter se merit list, he is entitled to get accommodation.

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32. In Indra Sawhney and Others versus Union of India and Others reported in (1992) Supp (3) SCC 217, the apex Court had occasion to observe as follows :

"[It] is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against eh quota reserved for scheduled Castes; they will be treated as open competition candidates."

33. A similar view has been expressed by the apex Court in R.K. Sabharwal and Others v. State of Punjab and Others reported in (1995)

2 SCC 745; Union of India and Others v. Virpal Singh Chauhan and Other reported in (1995) 6 SCC 684; Ritesh R. Shah v. Dr. Y.L. Yamul and Others reported in (1996) 3 SCC 253.

34. In the course of argument, Mr. B. Majumder, learned Asst. S.G. has placed and relied one office memorandum under No.36011/1/98-Estt.(Res) dated 01.07.1998 which has been issued by the Ministry of Personnel, PG and Pensions, Department of Personnel and Training. The reference has been made to the following passages from the said memorandum dated 01.07.1998 :

"2. O.M. dated May 22, 1989 referred to above and the O.M. No.36012/2/96-ESTT(RES) dated July 2, 1997 provide that in cases of direct recruitment, the SC/ST/OBC candidate who are selected on their own merit will not be adjusted against reserved vacancies.

3. In this connection, it clarified that only such SC/ST/OBC candidates who are selected on the same standard has as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standards is applied in selecting an SC/ST/OBC candidates, for example in the age limit, experience qualification, permitted number of chances in written examination extended zone of consideration larger than what is provided for general category candidates etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies."

[Emphasis added]

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35. This Court is constrained to observe that the said memorandum dated 01.07.1998 will not give any advantage to the respondents, as it has not been disputed that the petitioners were assessed on the same standards as applied to the General category candidates. It has not been denied by the respondents that Regional (for North East region) relaxation has not been extended to the General category candidate. From a reading of the employment notice dated 21.07.2018 [Annexure-A to the writ petition being WP(C)No.119 of 2021] it clearly transpires that the said regional relaxation was availed by the candidates, not belonging to the reserved categories. This Court is in total agreement with the view as expressed by the Delhi High Court in Hemant Pokhriyal(supra). Such relaxation if extended to standardize the anthropological or ethnic disadvantages in respect of physical standards cannot be treated as the relaxation in standards for the particular categories.

36. There is no dispute at all that all the petitioners have secured higher marks than the last selected candidate under the general category. According to the adverted policy and the law laid down by the apex Court, the petitioners ought to have been considered and appointed against the vacancies allotted for the general category candidates, but that has not been done under a perceived notion. The action of the respondents in this regard is grossly erroneous and arbitrary being contrary to the provisions of Article 14 of the Constitution of India.

37. Having observed thus, the respondents are directed to consider the petitioners against the vacancies earmarked for general(UR) candidates as was available at the time of the selection in pursuance to the employment notice

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dated 21.07.2018 and recast the selection panel dated 21.01.2021 [Annexure-F to the writ petition]. As it is apparent that the petitioner would occupy such positions in the inter se merit panel on recasting that they are to be selected and recruited by the respondents. The respondents are directed accordingly. The respondents are given liberty to adjust the petitioners against the available vacancies or against the supernumerary vacancies as might be required to create for the time being in order to save the services of the persons who have secured less overall marks than the petitioners as per the inter se merit and got selected and recruited. However, this is left to the discretion of the respondents. It is made further clear that the appointments of the petitioner will be prospective, but their seniority shall be determined on the basis of inter se merit. In terms of the above, the writ petitions are allowed.

There shall be no order as to costs.

JUDGE

Sabyasachi B