ORDER

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 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 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