Harshwardhan Sharma vs The Union Territory Of Jammu And Kashmir & Ors.

Per: - Ram Mohan Johri, Administrative Member

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, essentially calling in question his non-selection to the post of Constable in 02 Border Battalions of J&K Police in District Poonch under the Economically Weaker Section (EWS) category. The applicant has also sought a direction to the respondents to select and appoint him against the said post. The recruitment emanated from Advertisement Notification dated 09.03.2019, followed by the subsequent notification dated 11.01.2022.

The case of the applicant, in brief, is that he participated in the selection process for the post of Constable and possessed certificates pertaining to EWS as well as Pahari Speaking People (PSP) categories. According to him, when the candidates were afforded an opportunity to indicate the reserved category under which they desired consideration, he specifically opted for consideration under the EWS category. The record relied upon by him includes the communication dated 15.10.2022, wherein it was recorded that the applicant had produced an EWS certificate along with an application requesting that he be considered under the said category.

The grievance of the applicant is that notwithstanding the aforesaid request, his candidature was ultimately considered under the PSP category. In the revised merit list, he was placed at Serial No. 592 with 56 marks. According to the applicant, candidates securing 55, 52, 50 and 48 marks were selected under the EWS category in District Poonch, whereas he, despite having secured higher marks, was denied consideration under that category.

Central Administrative Tribunal^{5. The respondents have resisted the Original Application. Their} principal contention is that though the applicant had produced both PSP and EWS category certificates, his candidature could be considered only against one reserved category. Upon scrutiny, the EWS certificate produced by the applicant was treated as invalid for the recruitment process on the ground that it had been issued after the prescribed cut-off date of 02.04.2022. Consequently, in what the respondents describe as the larger interest of the applicant, his candidature was considered under the PSP category, his PSP certificate being valid within the stipulated period.

The respondents have further stated that the applicant secured 56 marks, whereas the cut-off under PSP category for District Poonch was 81 marks. On the other hand, the cut-off under EWS category for District Poonch was 48 marks. It is thus apparent that the applicant's marks were higher than the EWS cut-off, though he could not find place in the PSP category because of the substantially higher cut-off applicable thereto.

Central Administrative Tribunal^{7. We have heard learned counsel for the parties and have carefully} perused the pleadings and material placed on record.

The controversy lies in a narrow compass. The applicant is not challenging his marks in the written examination. It is also not disputed that he secured 56 marks. The real controversy is whether, in the peculiar facts of the case, his candidature deserved consideration under the EWS category instead of the PSP category and, consequentially, whether any relief can now be granted to him without unsettling appointments already made pursuant to the recruitment process.

The material on record shows that the recruitment process had undergone certain changes after issuance of the original advertisement. The respondents themselves issued a press release permitting candidates who had earlier qualified PET/PST and possessed reserved-category certificates pursuant to S.O. 127 of 2020 to change their categories and produce the desired reserved-category certificates before the Police Recruitment Board. The applicant produced both PSP and EWS certificates pursuant thereto.

More importantly, the record also demonstrates that the applicant had made his intention clear that he desired consideration under the EWS category. The communication dated 15.10.2022 itself records that the applicant had submitted an application requesting consideration under EWS. Thus, this is not a case where the applicant remained silent throughout the selection process and sought change of category only after finding himself unsuccessful. His request for EWS consideration existed during the selection process itself.

At the same time, the stand of the respondents regarding the cut-off date of the EWS certificate cannot altogether be ignored. The Police Recruitment Board considered the applicant's representation and decided to treat him under PSP category on the premise that his EWS certificate had been issued after 02.04.2022. The respondents have also stated that representations received after declaration of the result were examined by the Police Recruitment Board in its meeting dated 08.02.2023 and appropriate decisions were taken thereon.

In our considered view, therefore, it may not be appropriate at this stage to quash the entire select list or disturb candidates who have already been appointed and may have been serving for a considerable period. Such a course would cause serious prejudice to third parties and disturb a selection process which has otherwise attained finality.

Nevertheless, the applicant's claim cannot be rejected mechanically. A significant circumstance which weighs with this Tribunal is that the applicant secured 56 marks, whereas the respondents themselves state that the last cut-off under EWS category in District Poonch was 48 marks. His request to be treated under EWS category was also made during the recruitment process. Therefore, subject to his satisfying the eligibility requirements applicable to the EWS category in accordance with the relevant rules and the terms governing the recruitment, his case deserves a fair consideration if a vacancy is available and can lawfully be utilized.

Courts and Tribunals exercising judicial review in service matters are required to strike a balance between protecting a candidate from arbitrary exclusion and avoiding unnecessary disturbance of appointments already made. In the facts of the present case, that balance can appropriately be achieved by directing consideration of the applicant against an available vacant post, rather than by unsettling the selection of candidates who are already appointed.

Accordingly, the Original Application is partly allowed. The respondents are directed to consider the candidature of the applicant for appointment to the post of Constable in 02 Border Battalions, J&K Police against an available vacant post pertaining to District Poonch, subject to his fulfilling all other eligibility conditions and subject to such vacancy being legally available for being filled from the recruitment process in question.

While undertaking such consideration, the respondents shall keep in view the fact that the applicant had secured 56 marks and had requested consideration under the EWS category during the course of the selection process. His case shall not be rejected merely on the ground that he was earlier reflected under the PSP category, without examining his request and the relevant record in its proper perspective.

Central Administrative Tribunal^{7. We make it clear that this direction shall not result in displacement} or cancellation of the appointment of any candidate already selected/appointed. If no vacancy from the recruitment process is presently available, but any vacancy is available on account of non-joining, resignation, cancellation of candidature/appointment or otherwise and is legally capable of being utilized for the recruitment in question, the applicant's case shall be considered against such vacancy in accordance with his merit and the applicable rules.