Puneet Kumar Gupta & Anr. vs Delhi Subordinate Services Selection Board (Dsssb) & Ors

Anil Kshetarpal, J

Through the present Writ Petitions under Articles 226 and 227 of  the  Constitution  of  India,  the  Petitioners  assail  the  correctness  and legality of the common Order dated 07.07.2021 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi [hereinafter referred to as ‘the Tribunal’] in O.A. Nos.3292/2015, 3293/2015 and 3390/2015, as well as the consequential Order dated 06.08.2021 passed by the Tribunal in O.A. No.3614/2015, whereby the Original Applications(‘OAs’)preferred by the Petitioners came to be dismissed [hereinafter collectively referred to as ‘Impugned Orders’].

With the consent of learned counsel representing the parties, and as common questions of fact and law arise in the present batch of Writ Petitions emanating from the same recruitment process and Impugned  Orders,  the  matters  are  being  disposed  of  by  this  common judgment.

FACTUAL MATRIX:

In order to comprehend the issues involved in the present case, the relevant facts, which though are scanty and lack complete clarity, are required to be stated.

The vacancies forming the subject matter of Recruitment Advertisement  No.02/2012  trace  their  origin  to  an  earlier  recruitment exercise relating to the post of Junior Engineer (E&M) [hereinafter referred to as’JE(E&M)’] initiated in the year 1991.

The disputes arising from the earlier recruitment ultimately culminated in T.A. No.987/2009, wherein the Tribunal, by order dated 13.11.2009, directed that vacancies falling within the direct recruitment quota be filled in accordance with the applicable Recruitment Rules and the prevailing method of direct recruitment, while extending consequential protections and age relaxation to candidates who had been litigating since the earlier recruitment cycle.

Thereafter, further proceedings including O.A. No.4271/2011 were  instituted  before  the  Tribunal,  which  came  to  be  disposed  of on 27.04.2012 with directions to the Delhi Subordinate Services Selection Board (‘DSSSB’) to initiate a fresh recruitment process and issue an advertisement for filling the posts within a stipulated time frame.

Pursuant thereto, DSSSB issued Recruitment Advertisement dated 15.05.2012 inviting applications for various posts, including  the post of JE (E&M) in the Delhi Jal Board (‘DJB’). The prescribed method of selection under the advertisement comprised a two-tier written examination followed by interview.

Subsequently, the DSSSB issued a corrigendum dated 11.07.2013, stipulating that where the number of eligible candidates for a post was less than 500, the written examination would not be conducted and the selection would instead be undertaken on the basis of weightage assigned to academic qualifications, experience and interview in  the  ratio of 40:20:40,  where experience  was essential, or 50:50 between academic qualification and interview where experience was not prescribed.

Thereafter, certain candidates connected with the earlier recruitment  process  approached  this  Court in  W.P.(C)  No.4239/2013. By order dated 07.10.2013, this Court directed that such candidates be permitted to participate in the recruitment process and that their candidature be considered through interview, in continuation of earlier judicial directions.

The aforesaid directions resulted in the emergence of two categories of candidates, namely, those participating pursuant to Advertisement  No.02/2012  and  departmental  candidates  governed  by earlier judicial orders requiring interview-based evaluation.

Pursuant to the advertisement, a total of 7047 applications were received.  In  view  of  the  practical  difficulty  in  preparing  a  combined merit list based upon different modes of assessment, DSSSB examined  the  issue  in consultation with  the  user  department  and  the Services Department, GNCTD. It was proposed that candidates responding to the advertisement be subjected to a written screening test for shortlisting, all eligible candidates thereafter be called for interview, and a common merit list be prepared on the basis of interview performance so as to maintain uniformity amongst all candidates.

The  proposal  for  modification  of  the  examination  scheme  was placed before the competent authority, and approval of the Lieutenant Governor was obtained. The Respondents thereafter proceeded to implement the revised selection methodology, conducting a screening test for shortlisting candidates followed by interviews of shortlisted candidates as well as departmental candidates.

In  furtherance  thereof,  DSSSB  conducted  the  screening  test  on 28.12.2014 for shortlisting candidates. The results were declared on 04.03.2015, and shortlisted candidates, including the present Petitioners, were called for interview vide notice dated 17.03.2015. Interviews were  conducted  between  25.03.2015  and  30.03.2015,  and interview marks were published on 08.04.2015.

On 26.08.2015, DSSSB declared the final result vide Result Notice No.334. It is the case of the Petitioners  that the final merit list was prepared solely on the basis of interview marks, without assigning any weightage to academic qualifications or experience, thereby allegedly violating the Recruitment Advertisement No.02/2012 as well as the corrigendum dated 11.07.2013 governing the selection process.

Aggrieved  by  the  said  selection,  the  Petitioners  instituted  O.A. Nos.3292/2015  and  3293/2015  before  the  Tribunal,  seeking  quashing of the final result dated 26.08.2015 and consequential directions for preparation of the merit list strictly in accordance with the prescribed weightage  criteria.  A  connected  O.A.  No.3390/2015  raising  identical challenges  to  the  same  recruitment  process  was  also  instituted  before the Tribunal,  and the matters came to be heard together. During the pendency  of  the  proceedings,  appointments  were  made  subject  to  the outcome of the OAs.

The Respondents defended the selection process before the Tribunal by contending that certain candidates arising from an earlier recruitment process initiated in the year 1991 had obtained judicial directions  permitting  their  selection solely  on the basis  of  interview. According to the Respondents, in order to maintain uniformity amongst candidates, a conscious decision was taken to adopt interview marks as the sole basis of selection for all candidates.

Upon consideration of the rival submissions, the Tribunal, by common Order dated 07.07.2021, recorded that the method adopted by the Respondents appeared inconsistent with the procedure prescribed in the recruitment advertisement and corrigendum. However, the Tribunal declined to interfere with the selection process, holding that the deviation stood justified in view of prior judicial directions and administrative decisions governing candidates from the earlier recruitment process, and consequently dismissed the OAs.

Thereafter, a similarly placed O.A. No.3614/2015 came to be dismissed  by the  Tribunal  vide  Order  dated  06.08.2021,  relying  upon and following the reasoning adopted in the earlier common order dated 07.07.2021.

Aggrieved by the dismissal of the aforesaid OAs and the upholding of the impugned selection process, the Petitioners have preferred the present Writ Petitions assailing the Impugned Orders.

CONTENTIONS OF THE PARTIES:

Heard the Petitioners appearing in person in W.P.(C) No.8454/2021 and learned counsel appearing for the parties in the connected Writ Petitions and, with their assistance, perused the material placed on record.

The  Petitioners  appearing in  person,  as  well as learned  counsel representing  the  Petitioners  in  the  connected  matters,  have  submitted as follows:

i. The Recruitment Advertisement No.02/2012, read with the corrigendum dated 11.07.2013, prescribed a specific selection methodology assigning weightage to academic qualifications, experience and interview, and the Respondents were bound to adhere to the notified criteria. The rules of the game could not have been altered after commencement of the selection process.

ii. The preparation of the final merit list solely on the basis of interview marks amounts to an impermissible alteration of the selection process after commencement of recruitment, thereby violating settled principles governing public employment.

iii. The Tribunal, despite recording a categorical finding that the method adopted by the Respondents was inconsistent with the prescribed procedure, erred in law in declining to grant relief to the Petitioners, rendering the Impugned Orders inconsistent and unsustainable.

iv. Judicial  directions  issued  in  respect  of  candidates  arising  from an earlier recruitment process of the year 1991 could not legally be extended to fresh candidates who participated pursuant to Recruitment Advertisement No.02/2012, nor could such directions override the applicable recruitment conditions.

v. The decision to adopt interview as the sole criterion was neither disclosed to candidates during the selection process nor reflected in the advertisement or corrigendum, thereby offending the principles of transparency, fairness and legitimate expectation.

Per  contra, learned  counsel  appearing  for  the  Respondents  has submitted as follows:

i. The decision to adopt interview as the sole basis of selection was necessitated by peculiar circumstances arising from earlier judicial directions concerning candidates from the 1991 recruitment process who were required to be considered only through interview.

ii. In order to maintain uniformity and avoid application of different standards to similarly situated candidates, the Respondents adopted a common interview-based selection procedure for all participants.

iii. The written examination conducted pursuant to Recruitment Advertisement No.02/2012 was intended only for shortlisting purposes and not for preparation of the final merit list.

iv. The administrative decision, having been taken pursuant to judicial directions and policy considerations, did not warrant interference  under  Articles  226  and  227  of  the  Constitution  of  India, particularly when the selection process stood concluded and appointments had already been made.

Learned counsel appearing for Private Respondent Nos.25,  28 to 36 and 40 has further submitted as follows:

i. No eligibility condition was altered nor was any candidate excluded from participation. Hence, the “rules of the game” were not changed  midstream.  Reliance  is  placed  on  State  of  Uttar  Pradesh  v. Karunesh Kumar & Ors AIR 2023 SC 52.

ii. The selection procedure was necessitated by peculiar circumstances, as Advertisement No.02/2012 (Post Code 14/12) pertained to vacancies traceable to an earlier recruitment process initiated in 1991.

iii. This Court, in Cont. Cas(C) No.863/2014 vide order dated 02.03.2015, acknowledged the difficulty in applying different selection methodologies within the same recruitment and observed that preparation of a combined merit list based on distinct procedures would not be feasible.

iv. The uniform interview-based selection was adopted after approval of the Lieutenant Governor and after apprising this Court, and thus cannot be termed arbitrary.

v. The Petitioners, having participated in the process without demur  and  challenged  it  only  upon  being  unsuccessful,  are  estopped from assailing the selection, in terms of Madan Lal v. State of J&K (1995) 3 SCC 486; K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395; and Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Supp SCC 285.

No other submissions were advanced by learned counsel for the parties.

ANALYSIS AND FINDINGS:

We have carefully considered the rival submissions advanced by the parties, examined the material placed on record, and scrutinised the Impugned Orders passed by the Tribunal in the light of the governing recruitment conditions as well as the settled principles regulating judicial review in matters of public employment.

The principal grievance of the Petitioners is that although Recruitment Advertisement No.02/2012, read with the corrigendum dated 11.07.2013, prescribed assignment of weightage to academic qualifications, experience and interview, the Respondents ultimately prepared the final merit list solely on the basis of interview marks, thereby allegedly altering the “rules of the game” after commencement of the selection process.

There can be no dispute with the proposition that recruitment authorities are ordinarily bound by the procedure notified in the advertisement and that midstream changes affecting fairness of competition are impermissible. The doctrine that the rules of the game cannot be changed after commencement of selection is a well- recognised  facet  of  Articles  14  and  16  of  the  Constitution. However, the application of the said doctrine is not mechanical and must necessarily depend upon the nature of the change introduced, the surrounding circumstances compelling such decision, and whether the alteration results in exclusion or disqualification of candidates who were otherwise eligible to compete.

In this backdrop, it is considered that the recruitment in question cannot  be viewed  in  isolation from  the prolonged litigation history arising from the earlier recruitment exercise initiated in the year 1991 by the Delhi Water Supply and Sewage Disposal Undertaking (now known as the DJB), wherein departmental candidates were invited for appointment to the post of JE (E&M) through a process of interview.

Subsequently, the mode of recruitment was altered to promotion by the user department, thereby leading to the filing of W.P.(C) No.4930/1993 before this Court, which was later transferred to the Tribunal and renumbered as T.A. No.987/2009. The Tribunal disposed of the  said T.A. vide  order dated 13.11.2009,  issuing, inter  alia,  the following directions:

“The  RR  clearly stipulates  that  percentage  of the  vacancies  to be filled up in the following manner (1) 10% by promotion failing which by direct recruitment and (2) 90% by direct recruitment. In the relevant year in this case being 1992 and vacancies there available being 40, it is determined that 4 posts JE (M/E) are to be filled up by promotion and 36 posts by direct recruitment. In that year, if 4 vacancies were not filled up by promotion since eligible feeder category employees were not available, those 4 posts are to be filled up by direct recruitment.

The next issue is procedure to be adopted for direct recruitment. The respondents are competent to engage  DSSSB for any other agency admissible for the direct recruitment purpose. Whatever was the direct recruitment practice (Interview or written test + interview) in the relevant year must be followed to fill up those vacancies.) The exercise shall be completed within 3 months from the date of this order. It is needless to mention that those of the applicants who get selected and appointed in the post of JE (M/E) will  be  positioned  from  appropriate  year  notionally  with no arrears of pay accruing to them. We also direct that those Work Assistants who were promoted to the direct recruitment quota of JE(M/E) are to be vacate such posts.

Those of the applicants who have applied for the post of JE(M/E)  then  direct  recruitment  quota  are eligible  for  the  age relaxation as already ordered by the Hon’ble Court of Delhi.”

(Emphasis supplied.)

Thereafter, O.A. No.4271/2011 was filed before the Tribunal, which  came  to  be  disposed  of  on  27.04.2012  with  a  direction  to  the Delhi Subordinate Services Selection Board [hereinafter referred to as’DSSSB’] to issue an advertisement on or before 30.05.2012 and to undertake scrutiny of applications of departmental candidates. The entire exercise was directed to be completed within three months from the date of receipt of a copy of the order.

Thereafter, certain applicants filed W.P.(C) No.4239/2013 before this Court contending that having applied pursuant to the recruitment  process initiated in the  year  1991, they were  not required to submit fresh applications under the Recruitment Notice dated 15.05.2012  and  that  their  earlier  applications  ought  to  be  considered. In the said writ petition, the Court issued positive directions requiring completion of the process through interview-based evaluation. The same was disposed of on 07.10.2013 with the following directions:

“11. It is seen that in the year 1991 when the petitioners had submitted their applications the notification was issued by Delhi Water Supply and Sewage Disposal Undertaking whose successor in interest is Delhi Jal Board. Surely 22 years have gone by and it would not be possible for the successor organization Delhi Jal Board to trace out the applications so submitted by the petitioners.

It is a case where petitioners have been agitating since very long. They should not be dislodged only on the ground that they have not applied pursuant to the advertisement dated May 18, 2012. They have orders passed on April 06, 1995, November 13, 2009 and April 27, 2011 in their favour. Moreover in view of the stand taken by the counsel for the parties, we dispose of the writ petition in terms of the following directions:-

a) The petitioners shall submit their applications pursuant to the advertisement in Employment News on May 18, 2012 by October 31, 2013.

b)  The  Delhi  Jal  Board,  on  receipt  of  the  applications from the petitioners forward the same to the DSSSB within a period of two weeks.

c) The DSSSB would consider the candidature of the petitioners in terms of the process of interview only as has been directed by the Tribunal in its order dated November 13, 2009 while disposing of T.A.No.987/2009.

We make it clear that we have only decided issue arising from the order dated April 30, 2013 in C.P.No.769/2012 in Original Application No.4277/2011.”

(Emphasis supplied.)

Thereafter, DSSSB, in its meeting held on 02.04.2014, deliberated upon the mode of selection and recorded the following decision:

“As  per  New  Examination  Scheme  of  the  Board the  selection  of the candidates for the said post shall be made on the basis of Two Tier Examination while Hon’ble High Court has ordered that the selection of departmental candidates should be made on the basis of interview only. It was observed that it is not possible to make the merit list on the basis of two different mode of selection i.e. written examination for general candidates and interview for departmental candidate. To have a different selection process for the departmental candidates, the number of posts needs to be earmarked for them. Thereafter, it was decided that the DJB may be requested to identify number of vacancies  out  of  the  total  number  of  vacancies  (Total-39)  which could be filled by departmental candidates and to clarify the reason for forwarding the applications of non-petitioners and the applications received after 31.10.13.”

(Emphasis supplied.)

In response, DJB informed DSSSB that the requisition had been forwarded for filling up posts of JE (E&M) under the direct recruitment  quota  and  that  no  direction  had  been  issued  by  the  High Court  requiring  identification  or  earmarking  of  vacancies  specifically for departmental candidates.

Pursuant to the Recruitment Advertisement dated 15.05.2012, a total of 7047 applications were received. The matter was thereafter placed before the Services Department, GNCTD, seeking advice regarding the appropriate method of selection. The Services Department opined that relaxation from the existing approved scheme of two-tier examination could be sought in the peculiar facts of the case  and approval  of  the Lieutenant Governor could  be  obtained for adopting a  selection  process  based  on  interview,  in compliance with the orders of this Court.

Consequently, a proposal was submitted for approval of the Lieutenant Governor, placing on record, inter alia, the following:

“a) Candidates numbering 7047 who applied in response to our advertisement no in the year 2012 will be screened through a written exam and approximate no. of candidates 6 times of the total vacancies will be called for the interview.

b) All the departmental candidates who have their application up to 31.10.2013 will also be called for interview.

c) A combined merit list of both sets of candidates will be made on the basis of interview only.”

The Respondents further apprised this Court that approval of the Lieutenant Governor had been obtained to suitably modify the examination scheme so that all candidates could be evaluated uniformly, and that a combined merit list would be prepared on the basis of interview performance alone after screening through a written test for shortlisting purposes.

Pursuant thereto, a revised examination scheme dated 27.11.2014  was  notified,  providing  for  a written  screening  test  solely for  the  purpose  of  shortlisting,  to  be  followed  by an  interview for  all eligible candidates, including departmental candidates. Through the said  notification,  DSSSB  also  informed  the  candidates  that  all  earlier notifications stood superseded. Notably, the Petitioners did not raise any objection to the revised scheme of selection at the stage when the Screening Test was conducted.

The record thus demonstrates that the selection was not founded exclusively upon interview. In the peculiar facts and prevailing circumstances, a conscious decision was taken to conduct a written screening test for the limited purpose of shortlisting candidates equivalent to six times the number of notified vacancies, who were thereafter called for interview. Consequently, the contention advanced on behalf of the Petitioners that the entire selection process rested solely on interview does not merit acceptance.

Pertinently, the aforesaid judgment of this Court in W.P.(C) No.4239/2013 attained finality and was binding upon the Respondents. Moreover, the requirement of interview-based consideration was again brought to the notice of this Court in contempt proceedings.

The later proceedings in Cont. Cas(C) No.863/2014 culminated in order dated 02.03.2015, wherein the Respondents placed on record a detailed Counter-affidavit explaining the practical difficulties involved in conducting recruitment through two distinct evaluation methodologies for the same set of vacancies.

The Counter-affidavit disclosed that two categories of candidates  existed,  one  comprising  thousands  of  candidates  who  had applied pursuant to Recruitment Advertisement No.02/2012 and another consisting of departmental candidates whose cases were governed by earlier judicial directions mandating interview-based assessment. It was specifically stated before this Court that preparation of a combined merit list on the basis of two different procedures would not be feasible.

After taking note of these averments, this Court declined to issue any further directions and disposed of the contempt proceedings. The order dated 02.03.2015, thus clearly demonstrates that the modified selection methodology was not adopted unilaterally or surreptitiously, but was evolved after placing the entire factual position before this Court.

In the considered view of this Court, the selection process was, therefore, conducted in a manner which was transparent, judicially disclosed, administratively approved, and intended to harmonise compliance  with  earlier  binding  directions  while  ensuring  uniformity amongst competing candidates.

Once  the  Respondents  had  apprised  this  Court  of  the  proposed course of action and the proceedings were disposed of without adverse observation,  the  decision  to  adopt  interview  as  the  common  criterion cannot subsequently be characterised as arbitrary or mala fide. Judicial review cannot proceed on the assumption that the employer acted dehors judicial scrutiny when, in fact, the process stood shaped under the gaze of this Court itself.

Accordingly, it becomes evident that, in the peculiar factual matrix  obtaining herein,  the Respondents  adopted a course of  action which was fair, reasonable and transparent, evolved only after duly apprising this Court of the practical and legal complexities arising from the coexistence of two categories of candidates governed by differing judicial directions. The modified methodology was neither arbitrary nor unilateral but represented a conscious attempt to harmonise  compliance  with binding  judicial orders,  maintain uniform standards of assessment, and ensure equal treatment to all participating candidates. No material has been placed before this Court demonstrating mala fides, procedural illegality or discrimination warranting exercise of writ jurisdiction.

Equally, this Court cannot lose sight of the fact that the recruitment process traces its origin to the year 1991 and ultimately culminated in appointments made in the year 2015, pursuant to a selection process conducted openly and under judicial scrutiny. The selected candidates have since served for more than a decade and continuation  of  litigation  at  this  stage  would  neither  advance  fairness nor serve the larger interest of finality in public employment.

On the contrary, reopening a settled recruitment would perpetuate  uncertainty and  defeat  institutional  stability.  The  approach adopted by the Respondents, therefore, represents a balanced and equitable resolution intended to bring long-pending litigation to a close  rather  than  prolong  it,  and  no  justification  exists  for  unsettling the completed process.

Further, the reliance placed by the Petitioners upon the principle that the “rules of the game” stood altered requires closer examination in light of the decision of the Supreme Court in Karunesh Kumar (supra).  The Supreme Court has clarified  that  the doctrine  primarily operates where a change introduced after commencement of recruitment results in disqualifying candidates or altering eligibility conditions so as to non-suit participants from consideration.

In the present case, no eligibility criterion was modified, no candidate was rendered ineligible, excluded from participation, or deprived  of  an  opportunity  to  compete.  All  candidates,  including  the Petitioners, participated, firstly in the screening test/written examination, and thereafter in the same interview-based evaluation. The  alteration,  therefore,  related  only  to  the  mode  of  assessment  and not to qualification or eligibility.

Recruiting authorities must necessarily retain a degree of administrative flexibility to evolve an appropriate selection mechanism, particularly where compliance with prior judicial directions  and  maintenance  of  uniform  standards  become  imperative. As  observed  by  the  Supreme  Court  in Karunesh  Kumar  (supra),  an overly rigid application of the doctrine would unnecessarily curtail the employer’s power to select suitable candidates.

We are therefore unable to hold that adoption of the present recruitment process for deciding the final select list, in the peculiar factual matrix obtaining herein, constitutes an impermissible alteration vitiating the entire recruitment process.

The Petitioners have emphasised that the Tribunal itself recorded inconsistency between the prescribed procedure and the method adopted. In our view, such observation cannot be read in isolation. The Tribunal proceeded to examine whether the deviation stood justified in  light  of prior judicial directions and administrative necessity, ultimately concluding that interference would unsettle a completed selection undertaken uniformly for all candidates.

Judicial review in service matters is concerned not with substitution of administrative wisdom but with examination of arbitrariness, mala fides or violation of statutory mandate. The Petitioners have neither alleged nor established mala fides, selective treatment, or discrimination inter se candidates.

Equally significant is the fact that the Petitioners participated in the  selection  process  without  protest  and  subjected  themselves  to  the interview-based assessment. Only upon being declared unsuccessful did the challenge come to be mounted. The Supreme Court in Madan Lal (supra) has unequivocally held that a candidate who takes a calculated chance by participating in a selection process cannot subsequently assail the procedure merely because the outcome is unfavourable. Similar principles have been reiterated in K.H. Siraj (supra) and Om Prakash Shukla (supra).

The contention of the Petitioners that they became aware of the deviation only after declaration of results is not factually correct, inasmuch as the Notification dated 27.11.2014 notifying the procedure to be adopted was issued one month prior to the conduct of the screening test. The interviews constituted the decisive stage of evaluation and the Petitioners consciously participated therein without raising any contemporaneous objection. Significantly, no prejudice has been demonstrated to have been caused to the Petitioners on account  of  the  adoption  of  the  said  procedure.  In  the  absence  of  any such prejudice or demonstrable  arbitrariness affecting the outcome  of the selection, the challenge cannot be sustained.

We also find merit in the submission of the Private Respondents that  preparation  of  a combined  merit  list  through differing  evaluation standards  would  itself  have  generated  inequality  amongst  candidates. The decision to adopt a uniform criterion, approved at the highest administrative level and placed before the Court in earlier proceedings, cannot be characterised as arbitrary in the present case.

Interference at this stage would not merely unsettle a concluded recruitment  but  would  also  adversely  affect  appointments  made  long ago pursuant to a process conducted uniformly for all candidates. Courts exercising jurisdiction under Articles 226 and 227 must remain mindful of the principle of institutional stability in public administration.

CONCLUSION:

Having evaluated the matter, this Court is satisfied that the Tribunal correctly appreciated the peculiar factual circumstances, applied the governing legal principles, and declined interference for cogent reasons. The Impugned Orders do not suffer from jurisdictional error, perversity,  or manifest illegality warranting interference in  writ jurisdiction.

Accordingly, we find no merit in the present Writ Petitions.

The  present  Writ  Petitions  are  dismissed.  Pending  applications stands closed.