Hemant Pokhriyal v. Staff Selection Commission & Ors.

1. Present writ petition has been filed challenging the selection procedure of the respondents for the post of Constable (GD) in the Central Armed Police Forces (CAPFs), NIA, SSF and Rifleman (GD) in Assam Rifles insofar as it debars a candidate from the reserved category from being adjusted against the General vacancy if the candidate has availed any relaxation irrespective of the fact that such relaxation is also available to the General category candidates. MANMOHAN, J. (Oral)

2. Learned Counsel for the petitioner states that the petitioner belongs to Other Backward Class (OBC) from the border guarding district of Uttarkashi, under the Garhwal division of Uttarakhand. He further states that the ARGUMENTS ON BEHALF OF THE PETITIONER 2021:DHC:3151-DB Petitioner applied for the post of Constable (GD) in the Central Armed Police Forces (CAPFs), NIA, SSF and Rifleman (GD) in Assam Rifles (AR) Examination, 2018 held by the Respondent No.1, Staff Selection Commission (SSC), pursuant to the Notification dated 21st

3. He further states that the Petitioner qualified in the computer based examination and was shortlisted for the Physical Efficiency Test (PET) and Physical Standard Test (PST) in which he availed the relaxations in the standards of height and chest as available to all the male candidates falling in the categories of Garhwalis, Kumaonis, Dogras, Marathas and candidates belonging to the States of Assam, Himachal Pradesh and Jammu and Kashmir. These relaxations as provided vis-a-vis general candidates by Clause 9(III) of the Examination Notification are reproduced below:- July, 2018. a. Height

III. Physical Standard Test (PST):-

Physical standard laid down for the post of Constable/Rifleman are: Height (in cms) Male Female General, SC & OBC candidates (except those mentioned below) Relaxations:- The minimum height for the candidates falling in the categories of Garhwalis, Kumaonis, Dogras, Marathas and candidates belonging to the States of Assam, Himchal Pradesh and Jammu and Kashmir b. Chest: Chest (in cms: unexpanded/minimum expansion) General, SC & OBC male candidates (except those mentioned below ) N/A Relaxations:- The minimum chest for male candidates falling in the categories of Garhwalis, Kumaonis, Dogras, Marathas and candidates belonging to the State of Assam, Himachal Pradesh and Jammu & Kashmir. N/A (emphasis supplied)

4. Learned counsel for the Petitioner states that in the final result that was declared by the respondents on 21st January, 2021, the Petitioner had scored 73.1913 which, though more than the score secured by the last candidate selected in the unreserved category from his state (72.45198), was less than the score secured by the last candidate selected in the OBC (Border) category from his state (74.88390). He states that the Petitioner was not selected in either of the categories.

5. He states that subsequently it was revealed that the Petitioner was not accommodated in the un-reserved category because he had availed relaxation in the measurement of height and chest during the Physical Standard Test (PST). He submits that the relaxation that the Petitioner had availed was available not only for the OBC candidates but for all the candidates from the Garhwal area irrespective of their category. He states that since the relaxation availed by the Petitioner was also available to the candidates from the unreserved category, the petitioner should have been included in the final selection list of the unreserved category, having scored more than the cut-off. He contends that the Petitioner should have been considered in pursuance to Clause 11 (xiii) of the notification which reads as under: “(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

6. Learned Counsel for the Petitioner states that if a candidate of the reserved category performs better than a candidate of the general category without the ‘aid of any crutches’ then his selection is on the basis of merit and not on the basis of reservation and he shall have to be treated as a general category candidate because he makes it on his own merit and not by reason of the category to whom he/she belongs.. 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.”

7. Per contra, learned counsel for the respondents contends that since the petitioner had availed the relaxed standards in height and chest measurement, he had to be considered in the category as per the provisions contained in Clause 11(xiv) and not under Clause 11(xiii) of the Examination Notification which reads as under: ARGUMENTS ON BEHALF OF THE RESPONDENTS “(xiv) SC, ST, OBC and ExS candidate who qualifies 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 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

8. He states that the height & chest of the petitioner is less than the physical standards fixed for common recruitment test of CT(GD) in CAPFs & Assam Rifles, NIA and SSF and he has been declared qualified in the physical standard on relaxed standards as per the provisions contained in Clause 9(III) of the Notification on anthropological or geographical grounds. He further states that as per DOP&T OM No.36011/l/98-Estt.(Res) dated 01/07/1998, only the SC/ST/OBC candidates who are selected on their own merits without relaxed standards, along with candidates of other communities will not be adjusted in the 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 the reserved or unreserved posts and such exemption cannot be termed as relaxed standards in regard to age."

9. It is settled law that when a candidate gets selected for admission or for appointment to a post on the basis of his own merit and without availing the relaxations that are available to them, then his selection would not be counted against the reserved post. WHEN A CANDIDATE GETS SELECTED FOR APPOINTMENT TO A POST ON THE BASIS OF HIS OWN MERIT AND WITHOUT AVAILING THE RELAXATIONS THAT ARE AVAILABLE, THEN HIS SELECTION WOULD NOT BE COUNTED AGAINST THE RESERVED POST. PARA 11(XIII)OF THE EXAMINATION NOTICE ALSO STATES SO.

10. In Indra Sawhney & Ors. v. Union of India & Ors. (1992) Supp (3) SCC 217, the Supreme Court has held as under:- “[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 the quota reserved for Scheduled Castes; they will be treated as open competition candidates.”

11. A similar view has been reiterated by the Supreme Court in R.K. Sabharwal and Others v. State of Punjab and Others, (1995) 2 SCC 745; Union of India and Others v. Virpal Singh Chauhan and Other, (1995) 6 SCC 684; Ritesh R. Sah v. Dr. Y.L. Yamul and Others, (1996) 3 SCC 253.

12. This Court also finds that the examination notice in para 11(xiii) specifies that if a SC, ST, OBC and Ex-Serviceman are selected on their own merit and without any relaxed standards relatable to aforesaid categories or without consideration larger than what is provided for General category, then the candidate is not to be adjusted against the reserved vacancies.

13. This Court is of the view that the relaxations in measurement of height and chest are available to all the candidates from Garhwal Region or other specified regions whether the candidate belongs to a reserved or unreserved category. There is specific relaxation for Scheduled Tribes, but no relaxation with regard to height or chest is provided specifically to OBCs.