Biswajit Ray v. The Union of India and 7 Ors

PageoNo.#o1/5 GAHC010214712023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5594/2023o BISWAJIToRAYo S/O-oSHIMALoRAY,o VILL-oBAGAGARH,oP.O.-oCHARAIKHOLA,o P.S.-oSALAKATA,oDIST.-oKOKRAJHAR,o (ASSAM),oPIN-o783376.o ROLLoNO.o5105006382. VERSUSo THEoUNIONoOFoINDIAoANDo7oORSo REPRESENTEDoBYoTHEoSECRETARYoOFoTHEoMINISTRYoOFoHOMEoAFFAIRS, GOVT.oOFoINDIA,oNEWoDELHI,o1. 2:THEoSTAFFoSELECTIONoCOMMISSION oREPRESENTEDoBYoTHEoCHAIRMAN o BLOCKoNO.o12 oCGOoCOMPLEX o LODHIoROAD oNEWoDELHI o03. 3:THEoREGIONALoDIRECTOR oSTAFFoSELECTIONoCOMMISSION oGUWAHATI oASSAM oHOUSEoFEDoCOMPLEX o DISPUR oGHY-6. PageoNo.#o2/5 4:THEoDIRECTORoGENERAL oBORDERoSECURITYoFORCE oBLOCKoNO.o10 oCGOoCOMPLEX oLODHIoROAD o NEWoDELHI o03. 5:THEoDIRECTORoGENERAL oSASHATRAoSEEMAoBAL o5-6 oVIVEKANANDAoMARG oEASToBLOCK o R.K.oPURAM oNEWoDELHI o22. 6:THEoDIRECTORoGENERAL oCENTRALoRESERVEoPOLICEoFORCE o(RECRUITMENT) oEASToBLOCK-07 o LEVEL-4 oSECTOR-01 oR.K.oPURAM o NEWoDELHI-66. 7:THEoDIRECTORoGENERAL oINDOoTIBETANoBORDERoPOLICE oBLOCKoNO.oIV oCGOoCOMPLEX o LODHIoROAD oNEWoDELHI o03. 8:THEoDIRECTORoGENERAL oCENTRALoINDUSTRIALoSECURITYoFORCE oBLOCKoNO.o13 oCGOoCOMPLEX o LODHIoROAD oNEWoDELHI o03o Page No.# 3/5 Advocate for the Petitioner : MD H R AHMED Advocate for the Respondent : DY.S.G.I.

- B e f o r

e - Hon'ble Mr. Justice arun dev choudhury

15.12.2023

Heard Mr. R. Mazumdar, learned counsel for the writ petitioner. Also heard Mr. S. S. Roy, learned CGC appearing for the respondents. The writ petitioner herein is candidate belonging to the OBC category. In response to the advertisement notice dated 21-07-2018, issued for the purpose of filling up the posts of Constable (GD) in the Central Armed Police Force (CAPF), the petitioner had submitted his candidature and had also taken part in the selection process. However, upon completion of the selection process the name of the petitioner did not find place in the select list although he had secured more marks then the last selected/ appointed unreserved category candidate. According to the petitioners' counsel the benefit of reservation was not extended to the petitioner on the ground that relaxation was earlier granted to them on account of measurements of height and chest. Mr. Mazumdar submits that the said relaxation was given to all the candidates belonging to the Northeastern region of India and therefore, the same could not have been substituted for the benefit of reservation which was statutorily available to the petitioner as OBC candidate. Mr. Mazumdar has also invited the attention of this Court to the decision of this Court rendered in the case of Manoranjan Roy & Anr. Vs. UoI & Ors. [W.P.(C) No. 3468/2023] and series of other similar writ petitions wherein, similar grievance like that of the writ petitioner was redressed and a Page No.# 4/5 direction was issued upon the respondents to issue orders of appointment to such reserve category candidates as expeditiously as possible. Mr. Mazumdar, therefore, submits that similar order be passed in the present case as well. Mr. Roy, learned CGC has submitted, in his usual fairness, that the case of the petitioner would come within the ambit of earlier orders passed by this Court in the case of Manoranjan Roy (Supra) and to that extent, he does not resist the prayer made by the petitioner. However, at this point of time, vacancies may not be available so as to accommodate the petitioner and therefore, a writ of mandamus, directing appointment of the petitioner, may not be issued in the facts of this case. The said submission of the learned CGC has been countered by Mr. Mazumdar by placing reliance on a decision of the Supreme Court rendered in the case of Gaurav Pradhan & Ors. Vs. State of Rajasthan & Ors. reported in (2018) 11 SCC 352, wherein the Hon'ble Apex Court had held that if the appointment orders to the un-reserved category candidates were denied without any valid basis, they should be appointed, if necessary by creating supernumerary posts. In the case of Gaurav Pradhan (Supra), the Supreme Court had taken note of the fact that the candidates who were found to have been selected and were entitled to be appointed on the basis of merit were sought to be denied their orders of appointment by taking the plea that vacancies were not available I find that that was a case where the petitioner, who was part of the merit list, were entitled to be appointed against unreserved vacancies but the vacancies were filled up by migration of SC/ ST/ OBC who had availed relaxation of age. Having found that the petitioners could establish their right, the Supreme Court has made the following observation and direction:- "51. We, thus, for adjusting the equity between the parties, issue the following directions:

51.1 The appellant-writ petitioners who as per their merit were entitled to be appointed against unreserved vacancies which vacancies were filled up by Page No.# 5/5 migration of SC/ST/OBC candidates, who had taken relaxation of age, should be given appointment on the posts. The State is directed to work out and issue appropriate orders for appointment of such candidates who were as per their merit belonging to general category candidates entitled for appointment, which exercise shall be completed within three months from the date, copy of this order is produced.

51.2 The State shall make appointments against the existing vacancies, if available, and in the event there are no vacancies available for the above candidates, the supernumerary posts may be created for adjustment of the appellants which supernumerary posts may be terminated as and when vacancies come into existence.

¶52All the appeals are allowed accordingly." In view of the above, this writ petition stands disposed of by providing that the respondents may issue orders of appointment to the writ petitioner, appointing him as Constable (GD) in any division of the Central Armed Police Forces, as expeditiously as possible, preferably within 06 (six) months from the date of receipt of a certified copy of this order. However, if vacancies are not available, then in that event, supernumerary posts, in the light and observation made in the case of Gaurav Pradhan (Supra), be created for accommodating the petitioner. With the above observation, this writ petition stands disposed of.

JUDGE Comparing Assistant