Two Candidates Secure Same Marks, Age Determines Selection: Delhi High Court

A Division Bench of the Delhi High Court comprising of Justices Navin Chawla and Shalinder Kaur reiterated that in cases where two candidates secure the same marks, age should determine the selection of such candidates. The Bench allowed a Writ Petition wherein the Petitioner sought appointment based on having secured the same marks as that of another candidate who was appointed to the post. Background The Petitioner, a Sub-Inspector (Executive) in the Central Industrial Security Force applied for the post of Assistant Commandant (Executive) in the CISF. He had to appear in the Limited Competitive Examination-2019 that was notified by the Union Public Service Commission. The Petitioner secured 369 marks in total and also cleared his Physical Endurance Test and the Medical Examination. As per the Petitioner, the last recommended candidate (Respondent No.4) also secured 369 marks and while he was selected, the Petitioner wasn't. Claiming that the notification inviting posts did not specify the way such situations were to be dealt with, the Petitioner claimed that in case two candidates scored the same marks, either both should be appointed to the post or the selection should be based on the marks secured in the interview/personality test. Aggrieved, the Petitioner approached the Court. Contentions of the Petitioner: The Counsel for the Petitioner submitted that the Petitioner was 33 years old while Respondent No.4 was only 28 years old and the latter thus would get two more chances to secure selection to the post while the Petitioner had only one chance left. Making this submission, the Counsel argued that the Petitioner should have been given priority on such basis. Further it was asserted that in case two candidates secured the same marks, age should have been taken as a factor to determine the appointment. While making these submissions, the Counsel relied on the decision taken in Amresh Shukla v. Directorate General, CISF & Anr., 2022. Contentions of the Respondent: The Counsel for Respondent No.3 (UPSC) submitted that in cases where two candidates secure the same marks, UPSC generally adopts a formula where the marks in the written examination determine the eligibility for the post and in cases where two candidates secure the same marks in Paper-1 as well, seniority determines the selection of the candidate. The Counsel further submitted that since the Petitioner and Respondent No.4 obtained the same marks in Paper-1, Paper-II was compared to determine the selection. As per the comparison made between the marks obtained in Paper-II, the Petitioner had secured less marks, hence Respondent No.4 also being the last candidate was appointed. Citing disagreement with the judgment in Amresh Shukla v. Directorate General, CISF & Anr., the Counsel stated that the law laid down in the said judgment was incorrect as it states UPSC to have acted like an agent in conducting exams even though UPSC discharges its constitutional duties under Article 315 read with Article 320 of the Constitution of India while conducting the exams. Findings of the Court: The Court perused the distribution of marks in each case and noted that the Petitioner had secured less marks in Paper-II and applying the formula of considering the marks obtained in Paper-II, the UPSC offered the letter of appointment to Respondent No.4. Perusing the notification for the examination, the Court held that there was no resolution for cases involving a tie between two candidates. Additionally, the Court disagreed with the contentions of the Counsel for Respondent and referred to the decision taken in Amresh's case wherein it was held, 'We further hold, to avoid any kind of confusion, that in such a situation when the „tie breaker principle is missing, the CISF and other forces like the CISF should consider 'age'/ date of birth to determine the seniority when applying the „tie breaker principle for a timely solution.' The Court observed that the rules of examinations conducted by UPSC should be governed 'either by what is notified in the advertisement, by the rules of the authority for which the selection is being made, or by the general rules of the UPSC, or otherwise by general principles of law.' Holding that in the case of Petitioner, the UPSC had considered the marks of Paper-II to reject the offer of appointment to him, the Court upheld the law laid down in Amresh's judgement stating that in a case involving a tie between two candidates, the age of the candidate should be given preference. Therefore, without cancelling the appointment of Respondent No.4, the Court directed UPSC/CISF to recruit the Petitioner to the post of Assistant Commandant (Exe) and grant him retrospective seniority just above Respondent no.4. Moreover, other consequential benefits were also directed to be granted to the Petitioner. However, no allowances or pay...

Two Candidates Secure Same Marks, Age Determines Selection: Delhi High Court

Syed Nazarat Fatima

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