Page No.# 1/8 GAHC010129342017 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2928/2017 ARJUN SHILL and 2 ORS. S/O D SHILL, VILL- WARD NO. 10, KANCHANPUR ROAD, P.O. and DIST. HAILAKANDI, ASSAM, PIN - 788151. 2: SRI ASHOK DEWAN S/O SRI KIRAN DEWN R/O VILL- JHALAGHAT P.S. SHIMLA DIST. BAKSA PIN - 781327. 3: SRI RUVAN NATH S/O LT. CHANDAN NATH VILL- RAJMOHANSARINI LALA P.O. LALA DIST. HAILAKANDI PIN - 788163 VERSUS THE UNION OF INDIA and 12 ORS. REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF HOME AFFAIRS, NEW DELHI-110001. 2:THE STAFF SELECTION COMMISSION SSC REP. BY THE CHAIRMAN/SECRETARY STAFF SELECTION COMMISISON BLOCK-12 CGO COMPLEX LODHI ROAD NEW DELHI-110003. 3:THE REGIONAL DIRECTOR NER STAFF SELECTION COMMISSION P.O. RUKMINI NAGAR SACHIVALAYA Page No.# 2/8 GUWAHATI-06 ASSAM 4:THE DIRECTOR GENERAL CENTRAL RESERVE POLICE FORCE CGO COMPLEX NEW DELHI. 5:DIRECTOR GENERAL ASSAM RIFLES NONGRIMMAW LAITUMUKHRAH GORALINE SHILLONG MEGHALAYA - 793011. 6:DIRECTOR GENERAL BORDER SECURITY FORCE HQDGBSF BLOCK-10 CGO COMPLEX LODHI ROAD NEW DELHI - 110003. 7:DIRECTOR GENERAL CENTRAL INDUSTRIAL SECURITY FORCE BLOCK-13 CGO COMPLEX LODHI ROAD NEW SELHI -110003. 8:DIRECTOR GENERAL INDO TIBETAN BORDER POLICE BLOK -10 CGO COMPLEX LODHI ROAD NEW DELHI-110003. 9:DIRECTOR GENERAL NATIONAL SECURITY GUARD NORTHERN ACCESS ROAD NEAR DOMESTIC AIRPORT MEHRAM NAGAR NEW DELHI-110003. Page No.# 3/8 10:DIRECTOR GENERAL SHAHASRA SHEEMA BAL 5-6 VIVEKANANDA MARG EAST BLOCK R.K. PURAM NEW DELHI-110022. 11:SRI JAYANTA KUMAR NATH ROLL NO. 5105089142 12:SRI MUKUNDA BORAH ROLL NO. 5102000139 13:SRI DILIP CHETRY ROLL NO. 5001000337 THE COPIES OF THE RESPONDENT NUMBERS 11 TO 13 WILL BE SERVED THROUGH THE REGIONAL DIRECTOR NER STAFF SELECTION COMMISSIONER I.E. THE RESPONDENT NO. 3 AS PER INSTRUCTIONS LAID DOWN IN THE ADVERTISEMENT DATED 24.01.2015 PAGE16-54 OF THE WRIT PETITIO Advocate for the Petitioner : MR.D DEKA, MR.D BORA,MR.A CHOUDHURY,MRN J DAS,MR.N MAHAJAN,MR.P K DAS Advocate for the Respondent : MR.S K MEDHI, ASSTT.S.G.I.,C.G.C. BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 22.04.2026 Heard Mr. D Deka, learned counsel for the petitioners. Also heard Mr. S.K. Medhi, learned CGC for the respondents. 2. This petition is filed by the three petitioners challenging their non-selection in the recruitment process undertaken by the Staff Selection Commission by advertisement dated 24.01.2015 for appointment to posts of Constable (GD) in CAPFs, NIA, SF, and Rifleman (GD) in the Assam Rifles Examination 2015. The Page No.# 4/8 petitioner No. 1 opted for BSF and he secured “40 marks”, whereas the marks of the last selected candidate was 52. Similarly, petitioner No. 2 applied for all the options and he also obtained 40 marks and which was lower than the last marks obtained by the last candidate in the various categories. Petitioner No. 3 also secured 40 marks but he was rejected due to overage. All these 3 petitioners belong to OBC category. 3. The learned counsel for the petitioner has placed before the court a judgment of the Apex Court rendered in Union of India and Others Vs Probir Ghosh, reported in (2022) 12 SCC 250. The Apex Court held that where the preference is clearly indicated to a particular category then notwithstanding the petitioner obtaining higher marks with regard to the other categories, the same benefit cannot be conferred in view of the specific preference indicated by the candidate at the time of selection. The relevant paragraph of the judgment is extracted below: “35. 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. 36. 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. 37. 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 Page No.# 5/8 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. 38. 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. 39. In doing so, the High Court clearly overlooked Column 16 under Para 4 of Annexure II, to the notification. This is clearly erroneous. 40. However, the learned counsel for the respondents relied upon a decision of the Division Bench of the Patna High Court in Ram Bilash Ram v. State of Bihar [Ram Bilash Ram v. State of Bihar, 1986 SCC OnLine Pat 268] and the decision of the Allahabad High Court in Bindhyachal Kumar Singh v. Union of India [Bindhyachal Kumar Singh v. Union of India, 2013 SCC OnLine All 9828] . 41. In Ram Bilash Ram [Ram Bilash Ram v. State of Bihar, 1986 SCC OnLine Pat 268] , the High Court of Patna 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 : (SCC OnLine Pat para 11) “11. So, the ordinary meaning of “preference” is to give 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 the basis of preference list would be opposed to the principle of natural justice. If one says that he 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 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 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 Page No.# 6/8 choice.” But in para 12 of the said decision itself, the High Court made it clear that “it would have been a different matter had there 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. 42. In Bindhyachal Kumar Singh [Bindhyachal Kumar Singh v. Union of India, 2013 SCC OnLine All 9828] , the Allahabad High Court was concerned with a case where the candidate left the column 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 a par with the case on hand. 43. As a matter of fact, a similar question came up for consideration before this Court in Union of India v. M.V.V.S. Murthy [Union of India v. M.V.V.S. Murthy, 1987 Supp SCC 371 : 1988 SCC (L&S) 213] . 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 make it in the next year examination, he gave a representation seeking at least to be allotted to IPS for the CSE 1983 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. 44. Para 5 of the said decision clinches the issue and it reads as follows : (M.V.V.S. Murthy case [Union of India v. M.V.V.S. Murthy, 1987 Supp SCC 371 : 1988 SCC (L&S) 213] , SCC p. 373) “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: ‘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 candidate's preference in the selection examination, instead of being rejected he would be available to be considered for the other service. As already pointed out, the Civil Services Examination is a combined examination for Page No.# 7/8 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 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 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 preference, would not give the respondent any cause of action.” (emphasis supplied) 45. 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 16 of Para 4 of Annexure II to the Recruitment Notification.” 4. A reading of the judgment clearly reveals that the case projected by the present writ petitioners stands squarely covered by the law laid down by the Apex Court in Probir Ghosh (Supra). The petitioner No. 1 opted for BSF and, therefore, even if he secured higher marks compared to candidates in other categories, he cannot be considered in view of his his specific preference for Category A, which is BSF. The Petitioner No. 2 although gave his preferences for all the categories, he could not secure higher marks than the marks obtained by the last selected candidate and therefore his case cannot be considered. Petitioner No. 3 also opted for a specific category, namely category D, but he was rejected due to he being overage. 5. In view of the facts which are not disputed by the petitioner, as averred in the affidavit in opposition filed by respondents No. 2 and 3 on 15.11.2017, the court does not find any merit in the writ petition. The same therefore stands dismissed. Page No.# 8/8 6. Interim order if any, stand vacated. Pending I.As if any are also dismissed. JUDGE Comparing Assistant