Holding

A candidate cannot be placed in a service or border district for which no vacancy is earmarked, and a preference indicated in the application is final; therefore the High Court’s relief was set aside.

Summary

The Staff Selection Commission (SSC) issued a recruitment notification for constable and rifleman posts in various Central Armed Police Forces, earmarking vacancies separately for different border districts and requiring candidates to indicate a final preference for a service. Several candidates were excluded from merit lists on the grounds that they either belonged to a border district with no vacancy or had indicated preference for only one service. The Supreme Court held that vacancies earmarked for specific border districts cannot be treated alike, and a candidate’s expressed preference is binding, precluding consideration for other services where they scored higher. The Court also ruled that OBC certificates must conform to the prescribed format, and the High Court’s factual findings on certificate validity could not be revisited. Consequently, the appeals were allowed, the High Court orders set aside, and the respondents' relief dismissed.

Issues considered

Whether a candidate domiciled in a border district with no earmarked vacancy can be considered for vacancies in other border districts.
Whether a candidate who indicated preference for a particular service can be considered for appointment in other services despite higher marks.
Whether rejection of an OBC certificate on the ground that it is not in the prescribed format is valid.
Whether the High Court erred in interpreting the meaning of "preference" in the recruitment notification.

Subjects

Staff Selection CommissionRecruitment NotificationBorder District ReservationService PreferenceOBC Certificate FormatMerit ListArticle 14Service Law

Judgment

[2022] 8 S.C.R. 931 931

UNION OF INDIA AND ORS. A
v.
PROBIR GHOSH AND ORS.
(Civil Appeal No. 4585 of 2018)
FEBRUARY 17, 2022 B
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Service Law: Staff Selection Commission – Eligibility under
Notification – Rule of Construction – In the instant case, the
respondents were applicants for different posts such as constables
in Central Armed Police Forces, rifleman in Assam Rifles, etc. – C
They were kept out of merit list on the ground that they had failed to
fulfill the eligibility requirement as notified in the Notification –
Failure as alleged by the appellant authority was that one of the
respondent had applied for the vacancies, the reservation with
respect to which was circumscribed to a particular border district
to which he was domiciled and since the vacancies in said district D
were not available, he could not be placed on merit list for the
vacancies limited to other border district – Also the other respondent
who indicated his preference for one particular service and not for
other services cannot be considered for the appointment in other
services on the basis of merit alone – Appellant authority also rejected E
one of the respondent for being considered for appointment in OBC
reservation on the ground that the OBC certificate was not in a
prescribed format – Respondents successfully filed appeals before
High Courts – Hence instant appeals – Held: Once the vacancies
are earmarked separately for different categories of border districts
in the recruitment notification, it cannot be held that all border F
districts are to be treated alike, and hence appointment for vacancies
in other border district cannot be made – Where the Notification
provides for preference with respect to posts and the preference is
made by the candidate with respect to only one particular post then
he cannot claim appointment on other posts for which he has not G
made the preference on the basis of merit alone, particularly where
such notification provides that the preferences so made by the
candidate will be final and will not be changed under any
circumstances – The question of OBC certificate to be in a prescribed
format cannot be entertained in the appeal before the Apex Court
H
931
932 SUPREME COURT REPORTS [2022] 8 S.C.R.

A as it is a question of fact and the same cannot be assessed on merits
as considerable time period has lapsed and particularly in cases
where physical fitness of an incumbent in an uninformed service is
of utmost important.
Allowing the appeals, the Court
B HELD: 1. With respect to Civil Appeal Nos. 4586-4587 of
2018
The respondent belonged to the border district of Baksa
which came under Code “02”. As per Appendix-C to the
Notification, the vacancies for the border districts coming under
C 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”. But unfortunately, the High Court, in the impugned order,
proceeded on a reasoning that all border districts are liable to be
D
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. The said reasoning of the High Court, if accepted,
will tantamount to tampering with the Recruitment Notification.
Once vacancies are earmarked separately for different categories
E 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
F domiciled in the border district where vacancies were available,
though he belonged to another border district, to which no vacancy
was notified. [Paras 25, 26, 27][940-G-H; 941-A-C]
2. With respect to Civil Appeal No. 4585 of 2018 & Civil
Appeals arising out of Special Leave Petition (C) Nos.30408-
G 30409 of 2019
In Column No.16 under paragraph 4.0 of Annexure-II, 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
H
UNION OF INDIA AND ORS. v. PROBIR GHOSH AND ORS. 933

once exercised will be final and that no change will be allowed A
thereafter. 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.
B
Some candidates have indicated preferences to multiple services,
as there was no prohibition under the Recruitment Notification
to do so. What the Staff Selection Commission did was, to confine
the 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 C
depending upon the cut off marks, they were allotted to any one
of the services. Unfortunately, the respondents in these appeals
indicated preference only to one service. They did not secure
more than or equal to the cut-off mark for that service in the
category to which they belonged. It is true that candidates who
D
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. The High Court proceeded on the basis that the
candidates cannot be pinned down to the preference indicated in E
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.
In doing so, the High Court clearly overlooked Column No.16
under paragraph 4 of Annexure-II, to the Notification. This is
F
clearly erroneous. Therefore, the High Court was clearly wrong
in granting relief to the respondents (i) by diluting the significance
of preferences given by candidates; and (ii) in nullifying the effect
of the instructions contained in Column No.16 of paragraph 4 of
Annexure-II to the Recruitment Notification. [Paras 33-38,
44][942-B-H; 945-E] G
Ram Bilash Ram v. State of Bihar and others 1986 SCC
OnLine Pat 268 – held inapplicable.
Bindhyachal Kumar Singh v. Union of India and others
2013 SCC OnLine All 9828 – distinguished.
H
934 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 3. 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. But it is not known whether what is produced before the
Court as Annexure R-8 along with I.A.No.76255 of 2018 was the
caste certificate actually produced by that respondent. If this is
B
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
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
C 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. [Paras
48, 51][946-D, G-H; 947-A]
D
Union of India vs. M.V.V.S Murthy (1987) Supp.SCC
371 – referred to.
Case Law Reference
1987 Supp. SCC 371 referred to Para 42
E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4585
of 2018.
From the Judgment and Order dated 04.01.2016 of the High Court
of Gauhati at Guwahati in Writ Petition (Civil) No. 5520 of 2012.
With
F
Civil Appeal Nos.1441-1442 of 2022 and Civil Appeal Nos. 4586-
4587 of 2018.
K. M. Nataraj, ASG, Ms. Ranjana Narayan, Ms. Aakanksha Kaul,
Anirudh Bakhru, Apoorv Kurup, Sandeep Kumar Mahapatra, Amit
Sharma, Arvind Kumar Sharma, Mukesh Kumar Maroria, Advs. for the
G
Appellants.
Siddhartha Dave, Sr. Adv., Parthiv K. Goswami, Ms. Diksha Rai,
Ankit Agarwal, Anuj Aggarwal, Ms. Madhusmita Bora, Pawan Kishore
Singh, Avijit Roy, Kausar Raza Faridi, Praveen Jha, N. B. V. Srinivasa Reddy,
Shahbaaz Jameel, Mrs. D. Bharathi Reddy, Advs. for the Respondents.
H
UNION OF INDIA AND ORS. v. PROBIR GHOSH AND ORS. 935

The Judgment of the Court was delivered by A
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. Initially the B
number of posts sought to be filled up was notified as 39574, but the
same was revised to 48802.
2. As per the Notification, the process of recruitment was to
comprise of Physical Standards Test, Physical Efficiency Test, Written
Examination and Medical Examination.
C
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 D
based upon reservations mentioned in the Appendix, state-wise and
category-wise. 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, E
relaxation in the upper age limit was also granted not only for SC, ST,
OBC and ex-serviceman 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. Appendix-A to the Recruitment Notification dated 03.12.2011
showed that the vacancies were separately earmarked, (i) service-wise, F
such as Assam Rifles, BSF, CISF, CRPF, ITBP and Sashastra Seema
Bal; (ii) State and Union Territory wise such as Andaman and Nicobar,
Andhra Pradesh, Arunachal Pradesh etc.; and (iii) Intra-State wise for
the entire State as well as Naxal affected areas/border districts of the
same State. Appendix-C to the Notification indicated how the border G
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
Appendix-A to the Notification were distributed further on the basis of
the Rule of Reservation for OBCs, SCs and STs. H
936 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 6. At the cost of repetition it must be pointed out that the total
number of about 48802 vacancies were distributed service-wise, state-
wise, reserved category-wise and domiciliary status-wise in respect of
border districts and Naxal/Militancy affected areas.
7. Annexure-II to the Recruitment Notification contained
B “Instructions for filling up the application”. Column No.16 under
paragraph 4.0 of the said Instructions dealt with “preference for posts”.
This Column No.16 under paragraph 4.0 of Annexure-II 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
C under any circumstances.”
8. The format of the certificate to be produced by candidates
belonging to Scheduled Castes and Scheduled Tribes, was provided in
Annexure-VI. The format of the certificate to be produced by OBCs
was given in Annexure VII.
D 9. Since vacancies were notified service-wise, state-wise and
category-wise, Annexure-XII 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 North-Eastern States, Bihar, Gujarat, Himachal
E Pradesh, Jammu & Kashmir, Punjab, Rajasthan and West Bengal.
Annexure-XIV provided the code numbers separately for the Naxal/
Militancy affected districts in some of the States such as Andhra Pradesh,
Bihar, Orissa, 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.
F 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
G 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
H to prepare a fresh Select List.
UNION OF INDIA AND ORS. v. PROBIR GHOSH AND ORS. 937
[V. RAMASUBRAMANIAN, J.]

11. The said writ petition WP (C) No.5520 of 2012 was taken up A
by a learned Judge of the Gauhati High Court along with 14 other writ
petitions. All the 15 writ petitions were allowed by the 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 B
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 intra-court appeal before the Division C
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 intra-court appeal was filed with a delay. By an
D
order dated 24.10.2016 the Division Bench of the High Court refused to
condone the delay in filing the intra-court 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 WP(C) No.5520 of 2012.
15. In this appeal (Civil Appeal No.4585 of 2018) only two issues E
arise for consideration. They are, (i) whether the rejection of the 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 (ii) whether candidates
who have indicated preference to a particular service can be kept out of F
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
G
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 Union H
938 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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.4586-
4587 of 2018.
B 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
C 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.30408-30409 of
2019.
18. Leave granted in SLP(C) Nos.30408-30409 of 2019.
D
Civil Appeal Nos.4586-4587 of 2018
19. Since the issue involved in these two appeals lies on a narrow
compass, we shall take up these appeals first.
20. As we have indicated in paragraph 14 above, the respondent
E in this writ petition belongs to the Scheduled Tribe and is domiciled in
Baksa District of Assam. In Annexure-XIII 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,
F 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
state-wise and category-wise tentative number of vacancies to be filled
up are indicated in the Appendix. Appendix-C to the Recruitment
G
Notification indicated the vacancy position in respect of CT (GD) (male
and female) of B.G. Districts of CAPFs. The relevant portion of Appendix-
C 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:
H
UNION OF INDIA AND ORS. v. PROBIR GHOSH AND ORS. 939
[V. RAMASUBRAMANIAN, J.]

A

B

C

D

E

F

G

H
940 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 22. The last portion of paragraph 1 of the Recruitment Notification
indicated the importance of the domiciliary status. It reads as follows:
“State-wise 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
B border districts in each CAPFs”.
23. Note-III 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
C 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:
D “…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
E 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
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
F 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
Appendix-C to the Notification, the vacancies for the border districts
G 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,
H proceeded on a curious reasoning that all border districts are liable to be
UNION OF INDIA AND ORS. v. PROBIR GHOSH AND ORS. 941
[V. RAMASUBRAMANIAN, J.]

treated alike and that once a person is found to belong to one border A
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. Once
vacancies are earmarked separately for different categories of border
districts, even in the Recruitment Notification, it is not possible to hold B
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 C
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, D
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 different footing
from the categorization of border districts. Paragraph 4(C) of the E
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 F
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.30408-30409 of 2019
31. As we have indicated in paragraph 13 above, two questions G
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 H
942 SUPREME COURT REPORTS [2022] 8 S.C.R.

A Delhi High Court is whether candidates who have indicated 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 Annexure-II, which
B 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
C “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.
D
35. What the Staff Selection Commission did was, to confine the
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.
E
36. Unfortunately, the respondents in these appeals indicated
preference only to one service. They did not secure more than or equal
to the cut-off 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
F 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
G 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.
38. In doing so, the High Court clearly overlooked Column No.16
under paragraph 4 of Annexure-II, to the Notification. This is clearly
H erroneous.
UNION OF INDIA AND ORS. v. PROBIR GHOSH AND ORS. 943
[V. RAMASUBRAMANIAN, J.]

39. However, the learned counsel for the respondents relied upon A
a decision of the Division Bench of the Patna High Court in Ram Bilash
Ram vs. State of Bihar and others1and the decision of the Allahabad
High Court in Bindhyachal Kumar Singh vs. Union of India and
others.2.
40. In Ram Bilash Ram (supra), the High Court of Patna B
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:-
“11. So, the ordinary meaning of “preference” is to give
priority to one over another. It would mean that by giving C
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 D
on the basis of preference list would be opposed to the
principle of natural justice. If one says that her prefers a
five-roomed house, it cannot be interpreted to mean that he
would not accept a four-roomed house if no five-roomed house
is made available to him. The term “preference” always E
indicates that the person has a choice to make. It cannot be
interpreted to mean that if he is not offered the thing for which
he has shown his preference, he will not accept the other
things offered to him for which also he was otherwise eligible
and for which also he was candidate from the very beginning.
If the applicant had no choice left with him, as he was not F
found suitable for the services/posts for which he had shown
preference, it cannot be said that he has abandoned his claim
for the rest of the services, as it cannot be presumed that he
would prefer to remain unemployed, if he did not get services/
posts of his choice.” G
But in paragraph 12 of the said decision itself, the High Court
made it clear that “it would have been a different matter had there

1
1986 SCC OnLine Pat 268
2
2013 SCC OnLine All 9828 H
944 SUPREME COURT REPORTS [2022] 8 S.C.R.

A been a rule or instruction to the contrary”. In the case on hand the
instructions were very clear and hence the decision of the Patna High
Court will not apply.
41. In Bindhyachal Kumar Singh (supra), the Allahabad High
Court was concerned with a case where the candidate left the column
B relating to preference, blank. Therefore, the High Court held that in the
absence of any condition or instruction to the 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.
C
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 Murthy3. The candidate
in that case preferred Indian 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
D 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.
E 43. Paragraph 5 of the said decision clinches the issue and it reads
as follows:-
“5. Indisputably the respondent confined his preference
only to the Indian Administrative Service. The note appearing
below column 22 in the application form reads thus:
F
“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.”
G
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 candidate’s
preference in the selection examination, instead of being
3
H (1987) Supp. SCC 371
UNION OF INDIA AND ORS. v. PROBIR GHOSH AND ORS. 945
[V. RAMASUBRAMANIAN, J.]

rejected he would be available to be considered for the other A
service. As already pointed out, the Civil Services Examination
is a combined examination 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
candidate for other services. The effect of this note is not
B
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 respondent in ranking.
If ranking alone is to be the test, preferences would have no
meaning. On the other hand, the procedure that preferences
are acceptable with reference to the position in the final list C
till vacancies 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
D
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 preferences given
by candidates; and (ii) in nullifying the effect of the instructions contained
in Column No.16 of paragraph 4 of Annexure-II to the Recruitment E
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 F
the format prescribed in Annexure-VII, to the Recruitment Notification.
It is the argument of the appellant that paragraph-4 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:- G
“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 H
946 SUPREME COURT REPORTS [2022] 8 S.C.R.

A of the certificates will be sought after the Written
Examination.”
46. The High Court rejected the contention of the appellant on 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.
B 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 hyper-technical objections on the basis of the format
in which the certificate is produced. This is especially so when the
C 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
D the officers of the State Government and that there is no uniformity in
this regard. Therefore, some leverage has to be given.
49. But the case of the appellant in the above appeal is that the
indication regarding non-creamy layer status in the caste certificate is
one of substance and not of form. The very eligibility to seek the benefit
E of reservation would depend upon the non-creamy layer status.
50. However, the respondents have filed as Annexure R-8, along
with their application for vacating the stay (I.A.No.76255 of 2018), a
caste certificate which actually contains a declaration about the non-
creamy layer status of one of the respondents. On the basis of this
F certificate it was contended by the learned counsel for the respondents
that the certificate was actually in the format prescribed in Annexure-
VII to the Notification.
51. But we do not know whether what is produced before us as
Annexure R-8 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
G
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 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
H of the incumbents is of utmost importance. A period of more than 10
UNION OF INDIA AND ORS. v. PROBIR GHOSH AND ORS. 947
[V. RAMASUBRAMANIAN, J.]

years have now passed from the date of Notification. Therefore, at this A
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 B
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. C

53. In normal circumstances, the above argument would have
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 D
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. E

Devika Gujral Appeals allowed.
(Assisted by : Mahendra Yadav, LCRA)

F

G

H