Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4585 of 2018
UNION OF INDIA AND ORS. ... APPELLANT(S)
Versus
PROBIR GHOSH AND ORS. ... RESPONDENT(S)
WITH
CIVIL APPEAL NOS.14411442 OF 2022
(@SPECIAL LEAVE PETITION (C) NOS. 3040830409 OF 2019)
CIVIL APPEAL NOs.45864587 OF 2018
J U D G M E N T
V. RAMASUBRAMANIAN, J.
1. By a Notification dated 03.12.2011, the Staff Selection
Commission invited applications for recruitment (i) of Constables
(GD) in Central Armed Police Forces (CAPFs) such as ITBP, BSF,
CISF, CRPF and SSB; and (ii) of Rifleman (GD) in Assam Rifles.
Signature Not Verified
Initially the number of posts sought to be filled up was notified as
Digitally signed by R
Natarajan
Date: 2022.02.17
16:35:24 IST
Reason:
39574, but the same was revised to 48802.
1
2. As per the Notification, the process of recruitment was to
comprise of Physical Standards Test, Physical Efficiency Test,
Written Examination and Medical Examination.
3. The closing date for submission of applications was fixed as
04.01.2012. However, candidates residing in North Eastern States,
Jammu & Kashmir, Sikkim, a few districts of Himachal Pradesh,
Andaman & Nicobar Islands and Lakshadweep were entitled to
submit the applications on or before 11.01.2012.
4. The Notification made it clear that the recruitment would be
based upon reservations mentioned in the Appendix, statewise
and categorywise. Apart from the reservation for OBC, SC and ST
candidates, the Notification provided for reservation for candidates
domiciled in Naxal and Militancy affected areas and select border
districts of some states in each of the services such as ITBP, BSF
etc. In fact, relaxation in the upper age limit was also granted not
only for SC, ST, OBC and exserviceman candidates, but also for
those domiciled in certain areas and those dependents of victims
killed in 1984 riots or in the communal riots of 2002 in Gujarat.
5. AppendixA to the Recruitment Notification dated
2
03.12.2011 showed that the vacancies were separately earmarked,
servicewise, such as Assam Rifles, BSF, CISF, CRPF, ITBP and
(i)
Sashastra Seema Bal; (ii) State and Union Territory wise such as
Andaman and Nicobar, Andhra Pradesh, Arunachal Pradesh etc.;
and (iii) IntraState wise for the entire State as well as Naxal
affected areas/border districts of the same State. AppendixC to
the Notification indicated how the border districts of North Eastern
States, Bihar, Gujarat, Himachal Pradesh, Jammu & Kashmir,
Punjab and Rajasthan were also divided into one or more
categories and how the vacancies are distributed among these
areas. The vacancies in every service in respect of every State,
under AppendixA to the Notification were distributed further on
the basis of the Rule of Reservation for OBCs, SCs and STs.
6. At the cost of repetition it must be pointed out that the total
number of about 48802 vacancies were distributed servicewise,
statewise, reserved categorywise and domiciliary statuswise in
respect of border districts and Naxal/Militancy affected areas.
7. AnnexureII to the Recruitment Notification contained
“ Instructions for filling up the application”. Column No.16 under
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paragraph 4.0 of the said Instructions dealt with “ preference for
posts ”. This Column No.16 under paragraph 4.0 of AnnexureII to
the Recruitment Notification dated 03.12.2011 reads as follows:
“Candidates should carefully indicate preference for post under
different forces. Option once exercised will be final and no change
will be allowed under any circumstances.”
8. The format of the certificate to be produced by candidates
belonging to Scheduled Castes and Scheduled Tribes, was
provided in AnnexureVI. The format of the certificate to be
produced by OBCs was given in Annexure VII.
9. Since vacancies were notified servicewise, statewise and
categorywise, AnnexureXII to the Recruitment Notification
indicated the code numbers allotted to all the States and Union
Territories and Annexure XIII separately indicated the code
numbers allotted to different border districts of the NorthEastern
States, Bihar, Gujarat, Himachal Pradesh, Jammu & Kashmir,
Punjab, Rajasthan and West Bengal. AnnexureXIV provided the
code numbers separately for the Naxal/Militancy affected districts
in some of the States such as Andhra Pradesh, Bihar, Orissa,
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Jharkhand, Chhattisgarh etc.
10. After the completion of the process of selection, the Staff
Selection Commission published a Select List of candidates on
17.10.2012. Finding that their names did not find a place in the
final Select List and contending that candidates who secured
lesser marks than them are included in the Select List, a group of
26 persons filed a writ petition in WP (C) No.5520 of 2012 on the
file of the Gauhati High Court. In addition to the contention
revolving around the marks secured by them and the marks
secured by some of the selected candidates, this group of 26 writ
petitioners also contended that though two of them belonged to
OBC category, they had been treated under the unreserved
category. Therefore, these candidates sought a writ of certiorari to
quash the final Select List of candidates, in so far as the State of
Assam is concerned with a further direction to the respondents in
the writ petition to prepare a fresh Select List.
11. The said writ petition WP (C) No.5520 of 2012 was taken up
by a learned Judge of the Gauhati High Court along with 14 other
writ petitions. All the 15 writ petitions were allowed by the
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learned Judge, by a common order dated 04.01.2016.
12. Following the decision rendered on 04.01.2016 in the said
batch of 15 writ petitions, the learned Single Judge also allowed
other similar writ petitions by separate orders dated 26.02.2016,
14.03.2016, 21.03.2016, 30.03.2016, 31.03.2016, 06.04.2016,
06.06.2016 and 09.06.2016.
13. Aggrieved by these orders, the Union of India and the Staff
Selection Commission filed an intracourt appeal before the
Division Bench. It was stated in the Memorandum of Appeal that
there were totally 476 candidates before the learned Single Judge
in various writ petitions and that out of those candidates, 61
persons had been selected subsequently when revised results were
announced.
14. However, the intracourt appeal was filed with a delay. By
an order dated 24.10.2016 the Division Bench of the High Court
refused to condone the delay in filing the intracourt appeal.
Therefore, the Union of India and the Staff Selection Commission
have come up with Civil Appeal No.4585 of 2018, challenging the
order of the learned Single Judge dated 04.01.2016 passed in
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WP(C) No.5520 of 2012.
15. In this appeal (Civil Appeal No.4585 of 2018) only two issues
arise for consideration. They are, whether the rejection of the
(i)
OBC certificate of a few candidates on the ground that they were
not in the prescribed format and the consequent categorization of
those candidates as general category candidates is correct?; and
whether candidates who have indicated preference to a
(ii)
particular service can be kept out of consideration for appointment
to other services, despite these candidates having secured more
marks than the selected candidates in those other services?
16. One candidate who was issued with an order of
appointment, but which was subsequently cancelled on the
ground that he did not belong to the border district to which he
was selected, filed an independent writ petition before the Gauhati
High Court in WP (C) No.6153 of 2013. Holding that the domicile
of a person in one particular border district will not debar him
from being considered for appointment in another border district,
the Gauhati High Court allowed the said writ petition by a
Judgment dated 16.05.2016. A petition for review was filed by the
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Union of India, but the same was also dismissed. Therefore,
challenging the order allowing W.P.(C) No.6153 of 2013 and
challenging the order passed in the Review Petition, the Union of
India and the Staff Selection Commission have come up with two
civil appeals in C.A. Nos.45864587 of 2018.
17. One candidate approached the Delhi High Court by way of a
writ petition in W.P.(C) No.8571 of 2015 contending that though
he indicated his preference for one particular service, he is entitled
to be considered for appointment in other services, on the basis of
his own merit. This writ petition was allowed by the Delhi High
Court by an Order dated 03.10.2018. The petition for review filed
by the Union of India was also dismissed on 05.04.2019. As
against the order passed in the writ petition and the review
petition, the Union of India and the Staff Selection Commission
have come up with SLP(C) Nos.3040830409 of 2019.
18. Leave granted in SLP(C) Nos.3040830409 of 2019.
Civil Appeal Nos.45864587 of 2018
19. Since the issue involved in these two appeals lies on a
narrow compass, we shall take up these appeals first.
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20. As we have indicated in paragraph 14 above, the respondent
in this writ petition belongs to the Scheduled Tribe and is
domiciled in Baksa District of Assam. In AnnexureXIII to the
Recruitment Notification dated 03.12.2011, the border districts of
Assam were divided into two categories. The border districts of
Dhubri, Cachar & Karimganj were given Code No.“01”. The border
districts of Baksa, Chirang, Kokrajhar & Udalguri were assigned
Code No.“02”. Since the respondent belonged to Baksa District,
he was entitled to be considered as a candidate belonging to the
border districts of Assam with Code No.“02”.
21. Paragraph 2 of the Recruitment Notification stated that the
statewise and categorywise tentative number of vacancies to be
filled up are indicated in the Appendix. AppendixC to the
Recruitment Notification indicated the vacancy position in respect
of CT (GD) (male and female) of B.G. Districts of CAPFs. The
relevant portion of AppendixC to the Recruitment Notification,
which relates to the two categories (Code Nos. 01 and 02) of the
border districts of Assam are reproduced for easy reference as
follows:
9
| State | Districts<br>falling in<br>their area | Bor | der Security Force (Male) | Border Security Force (Female) | Assam Rifles (Male) | INDO TIBETAN BORDER<br>POLICE FORCE (MALE) | Shashastra Seema Bal (male) | G.Total | ||||||||||||||||||||||||
| UR | OBC | SC | ST | Total | UR | OBC | SC | ST | Total | UR | OBC | SC | ST | Total | UR | OBC | SC | ST | Total | UR | OBC | SC | ST | Total | UR | OBC | SC | ST | Total | |||
| Assam | Dhubri ,<br>Cachar,<br>Karimgan<br>j | 83 | 42 | 11 | 19 | 155 | 20 | 10 | 3 | 4 | 37 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 103 | 52 | 14 | 23 | 192 | |
| Baksa,<br>Chirang,<br>Kokrajhar<br>&<br>Udalguri | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 42 | 21 | 6 | 9 | 78 | 42 | 21 | 6 | 9 | 78 | ||
| 10 |
22. The last portion of paragraph 1 of the Recruitment
Notification indicated the importance of the domiciliary status. It
reads as follows:
“Statewise vacancies are available for candidates
domiciled in the State and reservation is also available
for candidates domiciled in naxal and militancy
affected areas and select border districts in each
CAPFs”.
23. NoteIII under para 2 of the Recruitment Notification reads
as follows:
“As the vacancies have been allotted to the concerned
States/UTs, candidates are required to submit domicile
certificates of the States indicated by them in the
application at the time of the medical examination.”
24. Paragraph 4(C) of the Recruitment Notification contained
instructions regarding the “process of certification and format of
certificates”. The relevant portion of paragraph 4C reads as follows:
“…Candidates belonging to the State/UT will only be
considered for recruitment in their respective State/UT
on production of valid “Domicile Certificate” issued by
the competent authority so authorized by the concerned
State/UT to prove their domiciliary status.
Since the
State of Assam is not issuing Domicile
Certificate/PRC, candidates belonging to the state
of Assam are not required to submit the same.
However, their selection will be subject to verification of
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residential status from the concerned District
Authorities. West Pakistani refugees who have settled
in J & K but have not been given the status of J & K
citizen of the State will be recruited without the
condition of having a domicile certificate from the
designated authority of the J & K State.”
25. Admittedly the respondent in these two civil appeals
belonged to the border district of Baksa which came under Code
“02”. As per AppendixC to the Notification, the vacancies for the
border districts coming under Code “02” of the State of Assam
were “nil” in respect of BSF (Male and Female), Assam Rifles
(Male) and ITBP (Male). Therefore, he could not have been
considered for the vacancies earmarked for the border districts of
Assam coming under Code “01”.
26. But unfortunately the High Court, in the impugned order,
proceeded on a curious reasoning that all border districts are
liable to be treated alike and that once a person is found to
belong to one border district, he is entitled to be considered in
respect of all border districts.
27. The aforesaid reasoning of the High Court, if accepted, will
tantamount to tampering with the Recruitment Notification.
12
Once vacancies are earmarked separately for different categories
of border districts, even in the Recruitment Notification, it is not
possible to hold that all border districts are to be treated alike.
Different considerations may weigh with the recruiting
authorities for categorizing the border districts into two types.
Therefore, the High Court was not justified in granting relief to
the respondent on the ground that he must be considered as a
person domiciled in the border district where vacancies were
available, though he belonged to another border district, to which
no vacancy was notified.
28. Relying upon one portion of paragraph 4(C) of the
Recruitment Notification which we have extracted in paragraph
24 above ( in bold letters ), it is contended by the learned counsel
for the respondent that when the State of Assam was admittedly
not issuing domicile certificates, it is not proper to discriminate
between 2 different categories of border districts.
29. But we are not impressed with the above argument. The
requirement to produce a domicile certificate stands on a
13
different footing from the categorization of border districts.
Paragraph 4(C) of the Recruitment Notification dispenses with the
requirement of certificate, in so far as the State of Assam is
concerned. But it does not make the categorization of border
districts inapplicable.
30. Therefore, the Civil Appeal Nos. 4586 and 4587 of 2018 are
allowed and the impugned orders passed in W.P.(C) No.6153 of
2013 and in the review application are set aside. The writ petition
filed by the respondent shall stand dismissed.
Civil Appeal No. 4585 of 2018 & Civil Appeals arising out of
Special Leave Petition (C) Nos.3040830409 of 2019
31. As we have indicated in paragraph 13 above, two questions
arise for consideration in C.A.No.4585 of 2018. Only one
question arises for consideration in the other Civil Appeals
arising out of the judgment of the Delhi High Court.
32. The question that is common to the appeal arising out of the
judgment of the Gauhati High Court and the appeals arising out
of the Delhi High Court is whether candidates who have indicated
14
preference for a particular service can be kept out of
consideration for appointment to other services, despite such
candidates having secured more marks than the selected
candidates in those other services.
33. In Column No.16 under paragraph 4.0 of AnnexureII,
which is the brochure containing instructions for filling up the
application, candidates were called upon to carefully indicate
preference for the post under different Forces. It was also made
clear that option once exercised will be final and that no change
will be allowed thereafter.
34. The preference for BSF was to be indicated by the alphabet
“A”. The preference for CISF, CRPF, SSB, ITBP and Assam Rifles
are to be indicated respectively by the alphabets “B”, “C”, “D”, “E”
and “F”. The respondents are candidates who have clearly
indicated their preference to one service only. Some candidates
have indicated preferences to multiple services, as there was no
prohibition under the Recruitment Notification to do so.
35. What the Staff Selection Commission did was, to confine the
15
consideration of candidates who indicated preference only to one
service, to that service only. Candidates who indicated multiple
preferences were considered for all those services and depending
upon the cut off marks, they were allotted to any one of the
services.
36. Unfortunately, the respondents in these appeals indicated
preference only to one service. They did not secure more than or
equal to the cutoff mark for that service in the category to which
they belonged. It is true that candidates who secured lesser
marks than these respondents have been selected in other
services, but it was because of the expression of their openness
for appointment to any service, even at the time of submitting the
application. The respondents have become wiser after the event.
37. The High Court proceeded on the basis that the candidates
cannot be pinned down to the preference indicated in the
application form and that appointing persons who secured lesser
marks and rejecting those who secured higher marks on this
ground, would be violative of Article 14 of the Constitution.
16
38. In doing so, the High Court clearly overlooked Column
No.16 under paragraph 4 of AnnexureII, to the Notification. This
is clearly erroneous.
39. However, the learned counsel for the respondents relied
upon a decision of the Division Bench of the Patna High Court in
1
Ram Bilash Ram vs. State of Bihar and others and the
decision of the Allahabad High Court in
Bindhyachal Kumar
2
Singh vs. Union of India and others. .
40. In (supra), the High Court of Patna
Ram Bilash Ram
interpreted the word “preference” to mean a mere indication of a
choice and held that the same cannot be taken to indicate the
rejection of other options. The relevant portion of the judgment
reads as follows:
“ So, the ordinary meaning of “preference” is to give
11.
priority to one over another. It would mean that by
giving preference to one the person shows his liking for
it over the others. This does not mean that by giving
preference or priority to one, he shows his dislike for
others and opts against them. So, if the appellant gave
preference to some services/posts, it cannot be said
that he has withdrawn his candidature for the rest of
the services/posts. Any contrary inference drawn on
1
1986 SCC OnLine Pat 268
2
2013 SCC OnLine All 9828
17
| the basis of preference list would be opposed to the<br>principle of natural justice. If one says that her prefers<br>a fiveroomed house, it cannot be interpreted to mean<br>that he would not accept a fourroomed house if no five<br>roomed house is made available to him. The term<br>“preference” always indicates that the person has a<br>choice to make. It cannot be interpreted to mean that if<br>he is not offered the thing for which he has shown his<br>preference, he will not accept the other things offered to<br>him for which also he was otherwise eligible and for<br>which also he was candidate from the very beginning.<br>If the applicant had no choice left with him, as he was<br>not found suitable for the services/posts for which he<br>had shown preference, it cannot be said that he has<br>abandoned his claim for the rest of the services, as it<br>cannot be presumed that he would prefer to remain<br>unemployed, if he did not get services/posts of his<br>choice.” | ||
|---|---|---|
| But in paragraph 12 of the said decision itself, the High Court<br>made it clear that “it would have been a different matter had<br>there been a rule or instruction to the contrary”. In the case<br>on hand the instructions were very clear and hence the decision<br>of the Patna High Court will not apply.<br>41. In Bindhyachal Kumar Singh (supra), the Allahabad High<br>Court was concerned with a case where the candidate left the<br>column relating to preference, blank. Therefore, the High Court<br>held that in the absence of any condition or instruction to the<br>18 |
effect that if any column in the application form is left blank, the
application form would be rejected, and the approach adopted by
the Staff Selection Commission was not correct. Therefore, the
said case is also not on par with the case on hand.
42. As a matter of fact, a similar question came up for
consideration before this Court in Union of India vs. M.V.V.S
3
. The candidate in that case preferred Indian
Murthy
Administrative Service in the Civil Services Examination, 1983.
He was actually selected for IPS. He did not accept it but chose to
appear for the next year Examination. When he could not make it
in the next year examination, he gave a representation seeking at
least to be allotted to IPS for the CSE ‘83 batch on the ground
that candidates who had secured lesser marks than him have
been allotted to IPS in CSE 1983. When it was not accepted, he
approached the court, but this Court rejected his claim.
43. Paragraph 5 of the said decision clinches the issue and it
reads as follows:
3
(1987) Supp.SCC 371
19
“5. Indisputably the respondent confined his prefer
ence only to the Indian Administrative Service. The note
appearing below column 22 in the application form
reads thus:
“In respect of the services/posts not covered by the
entries above, it will be assumed that you have an
equal preference for those services/posts. You will
therefore, be considered for any of those services if you
cannot be allotted to the services of your preference.”
The real meaning of this note appears to us to be that if
preferences given by the candidate are not available to
be accommodated on the basis of the results of the can
didate's preference in the selection examination, in
stead of being rejected he would be available to be con
sidered for the other service. As already pointed out,
the Civil Services Examination is a combined examina
tion for several services and when a vacancy is not
available within the field of the candidate's choice, it is
open to the Central Government to consider the candi
date for other services. The effect of this note is not that
preferences given by a candidate securing a place
lower to the respondent would not be entitled to his
preference because he has been placed below the re
spondent in ranking.
If ranking alone is to be the
On the
test, preferences would have no meaning.
other hand, the procedure that preferences are accept
able with reference to the position in the final list till va
cancies in the services preferred are exhausted is the
most logical one and meets the requirements of the
scheme. Merely because the respondent was placed at
the 280th place in the merit list and someone else
placed at No. 291 was being offered the Indian Police
Service in keeping with his preference, would not give
the respondent any cause of action…”
44. Therefore, the High Court was clearly wrong in granting
relief to the respondents (i) by diluting the significance of
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preferences given by candidates; and (ii) in nullifying the effect of
the instructions contained in Column No.16 of paragraph 4 of
AnnexureII to the Recruitment Notification.
45. Coming to the second issue which arises only in respect of
two respondents in Civil Appeal No.4585 of 2018, the case of the
appellant is that those two candidates produced caste certificates
to show that they belonged to the OBC category, but those
certificates were not in the format prescribed in AnnexureVII, to
the Recruitment Notification. It is the argument of the appellant
that paragraph4 of the “important instructions to candidates ” in
the Recruitment Notification made it clear that certificates in
respect of these claims should be in the format prescribed.
Paragraph 4 reads as follows:
“4. Candidates seeking reservation benefits as
SC/ST/OBC/ExS must ensure that they are entitled to
such reservation as per eligibility prescribed in the
Notice. They should also be in possession of the
certificates in the format prescribed by Government of
India in support of their claim when the copies of the
certificates will be sought after the Written
Examination.”
46. The High Court rejected the contention of the appellant on
21
the ground that what is of importance is the substance and not
the form and that a certificate holder has no control over the
format of the certificate.
47. Defending the judgment of the High Court, it is contended
by the learned counsel for the respondents that so long as the
status of the respondents is not disputed by the Staff Selection
Commission, it is not open to them to raise hypertechnical
objections on the basis of the format in which the certificate is
produced. This is especially so when the candidates have no
control over the authorities who are competent to issue the
certificates. Therefore, the learned counsel for the respondents
submitted that the order of the High Court in respect of the
candidates belonging to OBC category, does not call for any
interference.
48. It is true that the power to issue caste certificates vests with
the officers of the State Government and that there is no
uniformity in this regard. Therefore, some leverage has to be
given.
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49. But the case of the appellant in the above appeal is that the
indication regarding noncreamy layer status in the caste
certificate is one of substance and not of form. The very eligibility
to seek the benefit of reservation would depend upon the non
creamy layer status.
50. However, the respondents have filed as Annexure R8, along
with their application for vacating the stay (I.A.No.76255 of
2018), a caste certificate which actually contains a declaration
about the noncreamy layer status of one of the respondents. On
the basis of this certificate it was contended by the learned
counsel for the respondents that the certificate was actually in
the format prescribed in AnnexureVII to the Notification.
51. But we do not know whether what is produced before us as
Annexure R8 along with I.A.No.76255 of 2018 was the caste
certificate actually produced by that respondent. If this is the
certificate that he had actually enclosed to his application, there
would have been no occasion for the High Court to examine
whether the objection relates to substance or mere form. At this
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level, in an appeal before the highest Court, it is not possible for
us to look into this question of fact. This is especially so since the
recruitment relates to uniformed services, where physical fitness
of the incumbents is of utmost importance. A period of more
than 10 years have now passed from the date of Notification.
Therefore, at this stage it is not possible to enter into disputed
questions of fact and grant relief to those two respondents.
52. In view of the above, these appeals are also liable to be
allowed. But before we do so, we must deal with one last
contention of Mr. Siddharth Dave, learned senior counsel for the
respondents. Inviting our attention to the fact that by the order
impugned, the High Court disposed of 15 writ petitions, but the
appellants have chosen to file only one appeal against one of
those writ petitions. It was contended by the learned senior
counsel that after having allowed the common order passed in
other writ petitions to attain finality, it is not open to the
appellants to blow hot and cold.
53. In normal circumstances, the above argument would have
24
really appealed to us as it is legally well founded. But in this case
even admittedly some of the petitioners who approached the
court have been granted relief, due to the revision of Merit List.
It means that each of the candidates who were before the High
Court had some distinguishable feature and some of them got
the relief even from the appellants. Therefore, the contention that
the appellants cannot blow hot and cold in respect of a few
candidates may not hold water.
54. Therefore, the appeals are allowed and the impugned order
of the High Court is set aside. There will be no order as to costs.
…..…………....................J.
(Hemant Gupta)
.…..………......................J
(V. Ramasubramanian)
New Delhi
February 17, 2022
25