Rajesh Kumar vs Delhi Subordinate Services Selection Board And Ors

Raj Vir Sharma, J

The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:

"a. To consider the applicant in SC category for post Code No.71/09, Assistant Teacher with Directorate of Education after including his name as selected candidates in the SC category;

b. To keep one seat vacant for the applicant till the decis ion of the Original Application from this Hon"ble Tribunal;

c. To declare fresh list of selected candidates after including the name of the Applicant in the SC category in lieu of any seat lying vacant;

d. To pay the cost of the proceeding and by way of award in favour of applicant;

e. Issue directions to the respondents to fill the SC posts and Appoint the Applicant herein for the said or any other vacant seat still lying vacant;

f. Issue Directions to the Respondent No.2 to restrain from returning any vacant post to Respondent No.1 till the pendency of this Application;

g. pass such other or further order/s as Your Lordships may deem fit and proper."

Resisting the O.A., the respondents have filed a counter reply.

The applicant has  filed a rejoinder reply refuting the stand taken by the respondents in their counter reply.

We have carefully perused the records and have heard Ms.Shilpi Satyapriya Satyam, learned counsel appearing for the applicant, and Mr. K.M.Singh, learned counsel appearing for the respondents. We have also perused the written note of submissions filed by Ms.Shilpi Satyapriya Satyam, learned counsel appearing for the applicant.

Brief facts of the case, which are relevant for the purpose of deciding the controversy and are not disputed by either side, are that in December 2009, respondent no.1-Delhi Subordinate Services Selection Board (hereinafter referred to as "DSSSB") published Advertisement No.004/2009 (Annexure A/2) inviting applications from eligible persons for selection and recruitment against 520 (UR-186, OBC-148, SC-36, ST-150 including PH(OH-OA/OL/OAL/BL)-09, PH-(VH-B/LV)-28, EXSM-234) vacancies in the post of Assistant Teacher (Primary) in the Directorate of Education, Government of NCT of Delhi, vide Post Code 71/09. In response to the said Advertisement, the applicant made application as a Scheduled Caste (SC) candidate. The respondent-DSSSB conducted the written examination on 25.8.2013. The respondent-DSSSB fixed the cut-off marks of 30% in the written examination for SC candidates. The result was published vide Office Order No.339, dated 12.9.2014 and Office Order No.341 dated 1.12.2014. Subsequently, in compliance of the order dated 26.9.2014 passed by the Tribunal in OA No.1656 of 2014 (Vinita Vs. GNCTD and others), the Revised Marks List was prepared and revised result was published by the respondent-DSSSB vide Result Notices dated 18.5.2015 and 21.8.205 selecting and recommending 36 SC candidates for appointment. The applicant had scored 73.50 marks. The last candidate selected under SC category had scored 134.50 marks. The marks obtained by the applicant being far below the marks scored by the last selected SC candidate, the applicant was not selected. The respondent-Directorate of Education received dossiers of 36 SC candidates selected and recommended for appointment. While so, the applicant made a representation dated 17.8.2015 requesting the respondent-DSSSB to select and recommend him for appointment to the post of Assistant Teacher (Primary) in the Directorate of Education, because he had scored 73.50 marks, i.e., more than 30% of marks in the written examination which were fixed as cut-off marks for SC candidates, and because one of the selected candidates under SC category, namely, Shri Indrajit did not join. There being no response, the applicant had filed OA No.1585 of 2016. Without issuing notices to the respondents and without going into merits  of the case, the Tribunal, by order dated 3.6.2016, disposed of OA No.1585 of 2016 and directed the respondents to consider the applicant"s representation dated 17.8.2015 and pass appropriate reasoned and speaking order thereon within the period stipulated by the Tribunal. Thereafter "ADE(E-IV)", Directorate of Education (respondent no.2), vide letter No.F.DE-4(6)/(389)/E-IV/2015/9691, dated 14.6.2016, informed the applicant that out of 36 SC candidates whose dossiers were received, 31 candidates  were given appointment to the post of Assistant Teacher (Primary) in the schools under the Directorate of Education. In compliance of the Tribunal"s  order dated  3.6.2016(ibid), the respondent- DSSSB considered the applicant"s representation dated 17.8.2015(ibid), but rejected the same by passing a reasoned and speaking order dated 5.9.2016, the relevant portion of which is reproduced below:

"And whereas 36 posts of SC candidates were advertised and 1 post of SC candidate kept unfilled due to non availability of suitable PH candidate. Out of remaining 35 posts 34 posts were filled and process is on to fill up the remaining 1 post from the Merit. The last selected candidate in SC category scored 134.75 Marks.

And whereas Sh.Rajesh Kumar (SC) Roll No.07113270 scored only 73.5 Marks, which is far below in Merit of SC category in post code 71/09, Asst. Teacher Primary.

Now therefore in compliance with the orders of the Hon"ble CAT in OA No.1585/2016, the representation of Sh.Rajesh Kumar (SC) Roll No.07113270 was examined and rejected due to his marks being lower than the cut off marks arrived at for SC category.

This issues with the approval of the competent authority."

Hence, the present O.A. has been filed by the applicant seeking the reliefs as aforesaid.

Against the above backdrop, Ms.Shilpi Satyapriya Satyam, learned counsel appearing for the applicant, has contended that when five out of thirty-six notified vacancies in the post of Assistant Teacher (Primary) for SC category remained unfilled on account of non-joining of five SC candidates, the respondents ought to have prepared another merit list of SC candidates including the applicant for appointment against the five unfilled vacancies. It has also been contended by Ms.Shilpi Satyapriya Satyam that though the Advertisement was issued by the respondent-DSSSB in the year 2009, the result of the recruitment examination was declared only in 2015, and in the meantime the applicant has become overage for selection and appointment to any post, and, therefore, the respondent-DSSSB ought to have selected him and recommended his appointment against one of the unfilled vacancies. The respondent-DSSSB has acted arbitrarily and unreasonably in rejecting the applicant"s request for consideration of his candidature for appointment against one of the unfilled vacancies, more so when no other SC candidate who had scored the cut-off marks in the written examination laid any claim for consideration of his/her candidature for appointment against the said five unfilled vacancies. In support of the case of the applicant, Ms.Shilpi Satyapriya Satyam has relied on the decision of the Hon"ble Supreme Court in Ashok alias Somanna Gowda and another vs. State of Karnataka by its Chief Secretary and others,1991 SCR Suppl.(1) 493; the decision of the Hon"ble High Court in Surender Singh and another vs. DSSSB and others, LPA No. 65 of 2008, decided on 3.11.2008; and the decision of the Tribunal in Ms.Shikha Arora vs. Delhi Subordinate Services Selection Board through its Secretary and another, OA NO.2284 of 2012, decided on 7.11.2013.

5.1 In Ashok alias Somanna Gowda and another vs. State of Karnataka by its Chief Secretary and others (supra), the respondent-State invited applications for recruitment of Assistant Engineers (Civil) and (Mech.) for the Public Works Department. According to the Recruitment Rules, the marks obtained in the qualifying examination and the marks scored in the interview would be the basis for selection. The total marks for qualifying examination were kept at 100 and for interview at 50 marks. Appellant no.1 had scored 69.96 out of 100 marks in the qualifying examination and 29.50 out of 50 marks in the interview. Thus, he had scored total 99.46 out of 150 marks. Appellant no.2 had scored 66.40 out of 100 marks in the qualifying examination and 24.83 marks out of 50 marks in the interview. Thus, he had scored 91.23 out of total 150 marks. Both the appellants were not selected as they got less marks than the last candidate selected. They filed an OA before the State Administrative Tribunal challenging the riders on the ground that the percentage of marks for interview was excessive. The Tribunal having dismissed the O.A., they filed the Appeal before the Hon"ble Supreme Court. The Hon"ble Supreme Court held that 50 marks for interview out of total 150 marks were clearly in violation of the law settled by it in Ashok Kumar Yadav and others vs. State of Haryana & others, (1988) Supp.SCR 657; and in Mahinder Sain Garg vs. State of Punjab and others, JT 19990(4) SC 704. It was observed by the Hon"ble Supreme Court that some candidates were selected though they had scored much less marks than the appellants in the qualifying examination but had scored very high marks in the interview out of 50 marks kept for this purpose. If the marks for interview were kept even at 15% of the total marks and merit list was prepared accordingly, then both the appellants would have been selected and a large number of selected candidates would have gone much lower in the merit list than the appellants. However, taking into consideration the fact that the result of selection was declared in 1987 and the selected candidates had already joined the posts, the Hon"ble Supreme Court observed that it would not be just and proper to quash the selections on the above ground. Therefore, the Hon"ble Supreme Court directed the respondents to give appointment to the appellants on the post within a stipulated period if they were found suitable in all other respects. It was also observed by the Hon"ble Supreme Court that the case of other candidates cannot be considered as they never approached for redress within reasonable time, and that the relief was thus restricted only to the appellants who were vigilant in making grievance and approaching the Tribunal in time.

5.2 In Surender Singh and another vs. DSSSB and others (supra), the appellants were candidates for selection and appointment to the post of Assistant Teacher (Primary) in the Municipal Corporation of Delhi (MCD) for which advertisement was issued by the Delhi Subordinate Services Selection Board (DSSS) sometime in May 2006. The advertisement did not indicate any cut-off/qualifying marks in the written examination. As per the result published by the DSSSB, none of the appellants qualified. Hence the appellants filed writ petitions questioning, inter alia, Clauses 25 and 26 of the general instructions. Clause 25 stipulated that the Board had full discretion to fix minimum qualifying marks for selection for each category in order to achieve qualitative selection and to pick up the best talent available. Clause 26 stipulated that the marks obtained by the candidates in the written examination would not be disclosed in any case. Dismissing the writ petitions, the learned Single Judge held that in terms of Clause 25 of the general instructions, it was open to the DSSSB to fix the qualifying marks for selection in the different categories of posts. This would enable it to pick up the best talent available. Considering the fact that thousands and thousands of aspirants had applied for selection and appointment, it was all the more necessary to lay out some rational and objective basis for properly evaluating the candidates. Simply because the number of vacancies advertised could not be filled by subscribing to the criteria laid down by way of prescribing minimum qualifying marks, it would not amount to an illegality or exercise of arbitrariness on the part of the respondents for the reason that while it is implicit in the Recruitment Rules to consider every qualified candidate, as also in the equal opportunity right enshrined in Article 14 of the Constitution of India, screening a candidate by restricting the zone of selection cannot be held to be illegal and unconstitutional as long as there is rational formula carved out with the object of achieving higher standards of education and the said formula is applied uniformly to all, or is not totally irrational, or is not tainted with mala fide. Hence, the LPAs were filed challenging the judgment passed by the learned Single Judge. After taking note of the fact that a subsequent recruitment examination was held in April 2008 to fill up the unfilled vacancies of the 2006 examination as well as the newly created vacancies, and that in the 2008 examination, the minimum qualifying marks for Part I examination were 40% for General, and 30% for OBC/SC/ST candidates, and for Part II 45% for General, 25% for OBC/SC/ST, the Hon"ble Division Bench observed that it would be reasonable to consider marks between 40 and 45% to be the desired cut-off marks which would ensure that merit was not compromised. Applying that yardstick, the cases of appellants in LPA No.65 of 2008 and LPA No.161 of 2008 were directed to be considered once again by the respondent DSSSB and MCD for their appointment. Repealing the contention of the learned counsel appearing for the respondents that other candidates who might have scored marks higher than the aforesaid three appellants would also be entitled to be considered for appointment, the Hon"ble Division Bench observed that the judgment was confined to the aforesaid three appellants only.

5.3 In Ms.Shikha Arora vs. Delhi Subordinate Services Selection Board through its Secretary and another (supra), the applicant was a candidate for selection and recruitment to the post of Assistant Teacher (Primary) in the Directorate of Education, Government of NCT of Delhi, pursuant to the Advertisement No.03/2006 issued by the DSSSB inviting applications from eligible persons to fill 563 vacancies in the post of Assistant Teacher (Primary). The Advertisement did not stipulate that general candidates were required to score minimum qualifying marks in the examination, i.e., 45%. After the written examination took place, the respondent-DSSSB specified the minimum qualifying marks in Part I and Part II examination at 45%. In the result notice, the applicant"s name appeared at Sl.No.411. Considering the materials available on record, the Tribunal observed that the respondents had invited applications to fill up 563 posts. The required number of candidates did not satisfy the condition of minimum qualifying marks. Considerable number of posts remained vacant. The applicant had scored 41% marks, i.e., nearly the marks scored by the appellants in Surender Singh and another vs. DSSSB and others (supra). Therefore, the respondents might consider the candidature of the applicant for selection and appointment in the light of the judgment of the Hon"ble High Court in Surender Singh and another vs. DSSSB and others (supra).

On the other hand, it has been submitted by Mr.K.M.Singh, learned counsel appearing for the respondents that even if a merit list of SC candidates is prepared for the unfilled vacancies, there is no chance of the applicant being included therein because he has scored only 73.50 marks in the written examination and there are many other SC candidates who have scored more marks than the applicant in the written examination. The applicant has no right to claim appointment against any unfilled vacancy merely because he has scored the cut-off marks in the written examination and has approached the Tribunal. The other SC candidates who have scored the cut-off marks in the written examination and more marks than the applicant have a right to be considered in order of their merit for appointment against the unfilled vacancies. Therefore, the applicant is not entitled to the reliefs claimed by him in the O.A.

After having given our thoughtful consideration to the rival contentions, we have found no substance in the contentions of the applicant.

Admittedly the applicant had scored 73.50 marks whereas the last selected SC category candidate had scored 134.75 marks in the written examination. If at all five out of thirty-six SC candidates, who were selected and offered appointment, did not join and, thus, five vacancies remained unfilled, the applicant cannot be said to have an indefeasible right to be selected and appointed against one of the said five unfilled vacancies without having any regard to his merit position vis-à-vis other SC candidates on the basis of marks scored by them in the written examination. The applicant has not placed before this Tribunal any material showing that if a merit list of SC candidates is prepared by the respondent-DSSSB for appointment against the five unfilled vacancies, he will figure in such list on the basis of marks obtained by him in the written examination. There is much difference between the marks scored by the applicant and the marks scored by the last selected SC candidate. There may be some other SC candidates who had scored more marks than the applicant in the written examination, but had not been selected for appointment in view of the number of vacancies earmarked for SC category. The statement of marks obtained by all the SC candidates has not been produced before this Tribunal either by the applicant or by the respondents. In the circumstances, it is difficult on the part of the Tribunal to consider the applicant"s claim and to express any opinion as to whether or not the applicant will figure in the merit list to be prepared by the respondents for appointment against the five unfilled vacancies or any unfilled vacancy due to non-joining/non-appointment of any of the SC candidates whose dossiers had been sent by the respondent-DSSSB to respondent no.2. In the order dated 5.9.2016 (ibid) the respondent-DSSSB has also stated about the process being initiated by it to fill the remaining vacancies. Keeping in view the facts that the final result of selection was published by the respondent-DSSSB only in August 2015; that the information regarding the unfilled vacancies was made available only in June 2016; and that the respondents are contemplating to prepare a merit list of SC candidates in order of their merit for appointment against the unfilled vacancies, we are of the firm view that the other SC candidates, who had scored the cut-off marks in the written examination and had scored more marks than the applicant, will certainly have a right to be considered for selection and appointment against the unfilled vacancies as and when the contemplated merit list will be prepared by the respondents. Such right of SC candidates cannot be curtailed either by the respondents or by this Tribunal at the instance of the applicant. Acceptation of the applicant"s claim would be tantamount to depriving other SC candidates, who had scored the cut-off marks in the written examination and had scored more marks than the applicant, of an opportunity to be considered for selection and appointment against the unfilled vacancies, thus and thereby prejudicing the rights of those SC candidates who are not parties to the present proceedings before us. The maxim " actus curiae neminem gravabit", which means that the act of the Court shall prejudice no one, becomes applicable in the present case. Furthermore, in its letter dated 14.6.2016(ibid), respondent no.2, while informing the applicant that out of 36 candidates, whose dossiers were received from the respondent-DSSSB, 31 candidates were given appointment, did not state as to whether or not the respondent-DSSSB was requested to prepare merit list of SC candidates for appointment against the five unfilled vacancies. The merit list for appointment against any unfilled vacancy/vacancies is usually prepared by the respondent-DSSSB, i.e., the recruiting agency, only after the user Department, i.e., respondent no.2 submits a report to the respondent-DSSSB regarding non-joining/non-appointment of the selected candidates and consequential vacancies. In the absence of such a report being submitted by respondent no.2, the respondent-DSSSB cannot be faulted for not publishing any merit list of SC candidates for appointment against the unfilled vacancies by considering the candidatures of the applicant and of other SC candidates who had scored the cut-off marks in the written examination and were otherwise eligible for appointment in order of their merit. The decisions cited by the applicant, being distinguishable on facts, do not go to support the claim of the applicant.

In the light of our above discussions, we have no hesitation in holding that the applicant has not been able to make out a case for the reliefs claimed by him. Accordingly, the O.A., being devoid of merit, is dismissed. No costs.