Court allowed early hearing application in a writ petition challenging recruitment exclusion. Judge held petition dismissed as petitioner failed to claim disabled status on form; post-facto challenge to selection list barred.
Writ petition along with pending application for early hearing dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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RAJDEV SINGH YADAV (EX-POCOM) EW ..... Petitioner
versus
CHAIRMAN AND MANAGING DIRECTOR, FCI AND ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Jai Krishna Singh, Advocate. For the Respondents : None.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
CM APPL. 6906/2024 (for early hearing)
Signature Not Verified
Digitally Signed By:VINOD KUMAR Signing Da te:0 8.02.2024 16:19:34
W.P.(C) 1421/2024
Page 1 of 10
W.P.(C) 1421/2024
“a. Writ of Mandamus or appropriate Writ, Order or direction to the respondents to consider the case of the petitioner positively and include his name in the list of successfu1/selected candidates on the basis of his marks obtained in the said written examination held on 5th March 2023 in reference to the said advertisement, and
b. further kind order granting any other or further reliefs that the present tribunal deems fit and just in the facts and circumstances of the case.”
“The applicant is a citizen of this country and he is a disabled ex-serviceman in the category of ESM2"aggravated to service". He has served in the Indian Navy for 15 years and was duly discharged/retired on 31st August in the year 2021 after completing 15 years of unblemished service with impeccable record.
There was an advertisement vide Adv no. 01/2022FCI on 03 September 2022 by Noida FCI North branch for recruitment in various categories of officials including for the post of FCI AG III (depot) from all categories of eligible candidates(General, OBC,SC and ST, EWS as well as from among Ex-Servicemen). In this advertisement, total of 14.5 percent horizontal reservation was available for Ex-servicemen, out of which 4.5 percent were reserved for the categories of ESM-2 disabled ex-servicemen.
It is pertinent to mention herein that ESM-11 has two categories namely i-" Aggravated to service" and ii"attributed to service" whereas the above said advertisement did not specify that the said vacancy was for the category of ESM-2 "aggravated to Service” also.
Signature Not Verified
Digitally SignedBy:VINOD KUMAR W.P.(C) 1421/2024 Signing Da te:0 8.02.2024 16:19:34
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The petitioner is in the category of "aggravated to service”.
The aforesaid advertisement does state in Note 'IV' on the page no. 8 that "an ex-servicemen or persons with benchmark disability(pwBD) category candidate who qualifies on the basis of relaxed standards viz. age ,limit, experience, or qualifications, in online examinations, etc. is to be counted against reserved vacancies and not general vacancies subject to fitness of such candidate for selection". However, there was fundamental error in this advertisement which is that the term 'benchmark disability' has nowhere been defined in this whole advertisement. It has been mentioned in genera I sense whereas the said advertisement on the page no 3-4 clearly defines the requisite degree of disability i.e. 40 percent in the case of even candidates other than ESM-11 'attributed to military service'.
This created confusion because as stated herein above, disability considered in military service is of two types i.e. i-aggravated to service and ii-attributed to service and many departments such as I BPS, banking, SSB/SSC do not consider ' ESM-11 aggravated to service' as disabled. Therefore, the question whether "ESM-11 aggravated to service" was also eligible for horizontal reservation as per this advertisement remained unanswered in this whole advertisement.
Further the term 'ex-servicemen' has been defined in the explanation after the note 'vi' on the page no.-9, wherein it has been held that the "ex- servicemen means a person in any rank from Indian Navy, Army and Indian Air force, (a) who has been retired or relieved or discharged from such service at his own request or being relieved by the employer after earning his/her pension discharged from such service , (b) and those who have been relieved from such service on medical grounds 'attributable to military service' or circumstances beyond his control and awarded medical or other disability pension.(c) who has been released from such service as a result of reduction in establishment", etc.
Signature Not Verified
Digitally SignedBy:VINOD KUMAR W.P.(C) 1421/2024 Signing Da te:0 8.02.2024 16:19:34
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The above definition shows that there is specific reference to the terms u attributed to military service" in the aforesaid advertisement but the "ESM-11 aggravated to service" has nowhere been even obliquely defined or mentioned therein. It shows the above advertisement was silent with reference to the term 'Aggravated to service', and as such the term 'benchmark disability' is ordinarily to be construed as per this advertisement to exclude the "ESM-11 aggravated to service".
However for clarification, the petitioner had on 12/09/2022, met the concerned dealing authorities at NOIDA with request to clear the confusion with regard to the ESM-11 aggravated to service in the aforesaid above advertisement but the officials also gave to understand that the said advertisement was for the "attributed to service” only.
The petitioner duly applied on 04/10/2022 and while filling up the prescribed form as per the said FCI Advertisement he had bonafidely not ticked/filled up the relevant column of ESM-2 in the afore stated facts I circumstances and his bonafide belief that the said FCI advertisement was for the category of ESM- II "Attributed to military service only".
Thus the bonafide act of the petitioner is selfevident in as much as the advertisement itself nowhere shows that the "aggravated to service" shall also be counted against the disabled Ex-servicemen. Further the degree/percentage of disability required for the candidates other than Ex-servicemen has been categorically explained/mentioned in the said FCI advertisement on page 3-4 as stated herein above but the required benchmark disability for ex-servicemen has not been even obliquely mentioned anywhere in the said advertisement. As stated herein above, the petitioner was also guided by the normal trend in most of the Government departments which do not recognize the "aggravated to service" as ESM-2, such as IBPS Banking and SSC.
Signature Not Verified
Digitally SignedBy:VINOD KUMAR W.P.(C) 1421/2024 Signing Da te:0 8.02.2024 16:19:34
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The examination was held on 5th March 2023 and the petitioner had duly appeared in the above exam and written the paper.
The list of selected candidates has been released on 01/06/2023 but to utter dismay the candidates from the category of the "Aggravated to Service" have also been selected as ESM-11 disabled ex-serviceman as per the above advertisement. The applicant has not been selected as per the aforesaid list though he has scored in the above examination higher than those recruited as 'Esm11 aggravated to Service' i.e. 35.75 marks.
Since the list has been released, the petitioner had written a number of times to the concerned FCI authorities at FCI North Zone, Headquarter Noida duly apprising them of the facts and circumstances of the present case vide various mails sent to the FCI email ID [email protected] on the above dates 07/10/2023 and 05/11/2023.
The petitioner wrote to the concerned authority again 12/12/2023. The petitioner has also met the concerned authority i.e DGM Mr Dwivedi and the petitioner was assured to consider his case positively in his favour and he would be called as soon as possible yet there has been no response from their side until the notice with a copy of the writ petition was served to the respondent.
The petitioner filed W.P.(c) on 22/12/2023 in this Hon'ble High Court, the same was registered in January 2024 as W.P.(C) no.-589/2024.
The petitioner received reply from Respondent on 09/11/2024 to his various communications thereby rejecting his request applications to consider his case positively, wherein the point no.' 7' mentioned on the page no. 19 under GENERAL INFORMATION INSTRUCTIONS of the aforesaid advertisement, has been relied upon wherein it has been said " Option should be exercised by the candidates carefully after going through the advertisement and keeping in view fulfillment of eligibility conditions, educational qualification,
Signature Not Verified
Digitally SignedBy:VINOD KUMAR W.P.(C) 1421/2024 Signing Da te:0 8.02.2024 16:19:34
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experience etc. prescribed for the posts, OPTION ONCE EXERCISED SHALL BE FINAL, AND NO CHANGE WILL BE ALLOWED UNDER ANY CIRCUMSTANCES".
The respondent's reliance on the above point no.-7 is totally absurd and deliberately misleading and this shows the intent to find unjustifiable refuge in the above point no.-7 whereas the ineptness of the respondent becomes further apparent on perusal of the GENERAL INFORMATION INSTRUCTION on the page no.-19 of the said advertisement wherein it has nowhere been clarified that the ESM-11 aggravated to service shall also be counted against the posts reserved for disabled Exservicemen.
It is further pertinent to mention herein that ESM11 "aggravated to service" has been considered by North Zone Noida as ESM-11 disabled Ex- serviceman for recruitment as per the above vague advertisement but the other Zones Of FCI are not considering the ESM-11 "Aggravated to Service" as ESM-11 disabled ExServiceman as learnt by the petitioner The aforesaid if juxtaposed with the facts narrated herein above and the Kind Notice issued by this Hon'ble High Court on the issue of reduction in the no. of seats from the 14.5% announced in the aforesaid advertisement, shows only the state of confusion created by this advertisement. One can only conclude that the ineptness in the advertisement is a glaring example of leaving room therein for later manipulation by the authorities.
Thus the above reply by the respondent is an example of proverbial idiomatic expression "the pot calling the cattle black". No way the respondent can defend its ineptness in the said FCI Advertisement. On the other hand it also clearly shows only apparent bonafide/forthrightness in the petitioner's approach/conduct while filling up the above said form as per the above advertisement. The applicant's bonafide is self-explanatory.
The Writ petition (C) No.589/2024 was filed on 22/12/2023 and it was withdrawn with the permission of
Signature Not Verified
Digitally SignedBy:VINOD KUMAR W.P.(C) 1421/2024 Signing Da te:0 8.02.2024 16:19:34
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this Hon'ble Court to file it afresh with more material facts.”
Signature Not Verified
Digitally Signed By:VINOD KUMAR Signing Da te:0 8.02.2024 16:19:34
W.P.(C) 1421/2024
Page 7 of 10
between both the aforesaid terms, the petitioner was unable to understand as to what is the requirement in the form to be filled.
Signature Not Verified
Digitally SignedBy:VINOD KUMAR W.P.(C) 1421/2024 Signing Da te:0 8.02.2024 16:19:34
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to military service” or medical grounds “aggravated to military service” does not arise.
“ 16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] , Marripati Nagaraja v. Govt. of A.P. [(2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68] , Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005] , Amlan Jyoti Borooah v. State of Assam [(2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] and K.A. Nagamani v. Indian Airlines [(2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] ”
(emphasis supplied)
This view has also been reiterated by the Supreme Court in Ramesh Chandra Shah & Ors. vs. Anil Joshi & Ors. reported as (2013) 11 SCC 309.
Signature Not Verified
Digitally SignedBy:VINOD KUMAR W.P.(C) 1421/2024 Signing Da te:0 8.02.2024 16:19:34
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TUSHAR RAO GEDELA, J.
FEBRUARY 5, 2024/ nd
Signature Not Verified
Digitally SignedBy:VINOD KUMAR W.P.(C) 1421/2024 Signing Da te:0 8.02.2024 16:19:34
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3 issues framed by the court
Whether a petitioner who failed to claim disabled ex-serviceman status in the application form can challenge the selection list on that ground.
Whether a candidate who has participated in the selection process is entitled to challenge the selection criteria post-facto.
Whether confusion regarding 'aggravated' and 'attributed' disability claims for the same category.
Colour shows how this judgement treated each authority
Manish Kumar Shahi vs. State of Bihar & Ors.Relied on¶88
(2010) 12 SCC 576 · Who else cites this
Madan Lal v. State of J&KReferred¶88
(1995) 3 SCC 486 · Who else cites this
Marripati Nagaraja v. Govt. of A.P.Referred¶88
(2007) 11 SCC 522 · Who else cites this
Dhananjay Malik v. State of UttaranchalReferred¶88
(2008) 4 SCC 171 · Who else cites this
Amlan Jyoti Borooah v. State of AssamReferred¶88
(2009) 3 SCC 227 · Who else cites this
K.A. Nagamani v. Indian AirlinesReferred¶88
(2009) 5 SCC 515 · Who else cites this
Ramesh Chandra Shah & Ors. vs. Anil Joshi & Ors.Relied on¶90
(2013) 11 SCC 309 · Who else cites this
2 provisions across 2 enactments
Rajdev Singh Yadav
Chairman and Managing Director, FCI
Tushar Rao Gedela
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
