IMPORTANT POINT
Belated challenge to examination results, lack of qualification, and absence of vacancies can render a petition meritless.

JUDGMENT

Saurabh Banerjee, J. (Oral) - The Director General, Border Security Force, i.e. respondent no.2 herein, on 20.08.2022, issued an advertisement for filling up of 736 posts of Head Constable (Radio Operator), of which, 269 posts were reserved for Economically Weaker Section [EWS] category. Though both of the petitioners applied for the post of Head Constable (Radio Operator) under EWS category and successfully cleared three stages of the examination as well, their names did not appear in the final merit list declared on 12.04.2023.

2. Being aggrieved, the petitioner no.1 alongwith other similarly situated petitioners, in the first round of litigation filed a petition before this Court under Article 226 of The Constitution of India being W.P.(C) No.5585/2023, inter-alia, seeking setting aside of the result declared on 12.04.2023 as also publication of answer key for the OMR based examination, declaration of marks obtained by the petitioners and cut-off marks for all categories and re-examination of the case of petitioners therein for appointment to the post of Head Constable (Radio Operator). On the first hearing of the said petition, the respondents were directed to inform the petitioners of their score and show their OMR answer key along with the answer key prepared by the respondents. In response, this Court was apprised that a question therein was indeed found `incorrect'. Thus, the said writ petition was dismissed by this Court vide order dated 08.05.2023, albeit, with liberty to file afresh assailing the discrepancy found.

3. Thereafter, in the second round of litigation, the petitioner no.1 filed another petition before this Court under Article 226 of The Constitution of India being W.P.(C) No.6680/2023, inter-alia, seeking modification of the final result declared on 12.04.2023 for the post of Head Constable (Radio Operator) as also re-examination of his case. This Court, while disposing of the aforesaid writ petition, vide reasoned order dated 18.05.2023, directed the respondents to treat the said writ petition as a representation and also to decide the same by the Board of Officers within six weeks.

4. Thus, taking into account the discrepancy highlighted by the petitioner no.1, the respondent no.2, vide a speaking order dated 30.06.2023, observed that the above representation of the petitioner no.1 had no merit and that he ought to have contested the question within 3-7 days of the date of examination as also that the recruitment process was already over with the selected candidates having joined Training Centres on 15.05.2022 for basic recruitment training.

5. Thereafter, in the third round of litigation, the petitioner no.1 alongwith another similarly situated petitioner, has filed the present petition under Article 226 of The Constitution of India, seeking quashing of the order dated 30.06.2023 passed by the respondent no.2 as also a direction to the respondents to appointment the petitioners to the post of Head Constable (Radio Operator) in Border Security Force [BSF] with all consequential benefits.

6. The learned counsel for the petitioners submits that the order dated 30.06.2023 passed by the Board of Officers is ultra vires to the Constitution of India as it is arbitrary and unfair, thereby violating the rights of the petitioners enshrined in Article 14 of the Constitution of India. He further submits that it is the case of the petitioners that as a question was found incorrect, considering the adjustments of marks, it was incumbent upon the respondents to award 2 marks to the petitioner no.1 and 2.25 marks to the petitioner no.2 and it would have, ipso facto, meant that the petitioners had qualified the examination. Learned counsel for the petitioners then submits that the petitioners have been challenging/contesting the final merit list before this Hon'ble Court and in no manner should it be concluded that they are belated in challenging the same.

7. Upon issuance of notice, though the respondents have been