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Judgment
Harvinder Kaur Oberoi, Member (J)
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 challenging the action of the respondents in not filling up the OBC vacancy for the post of PGT Sociology-Male, even though the applicant is topper in the OBC category.
The respondent-DSSSB has published an advertisement No.02/2012 for the various posts under the post code 153/12. Two posts of PGT- Sociology (Male) were advertised, one to be filled by UR category and the other to be filled by the OBC category with the horizontal reservation of PH category applicable on any of the two vacancies to be filled by a candidate who is orthopedically handicapped (in short, OH). The applicant has filled up the application form under the OBC category and has participated in the recruitment. After the Tier-2 exam, the respondents had called the provisionally selected candidate for the verification of the documents etc., under the OBC category. On 22.06.2016, the result notice no.404 towards the final selection of the candidates was issued. In the said result notice no candidate under the OBC category was selected. Rather, it was mentioned that since no suitable OH (read PH) candidate was available, therefore, as per the provisions of horizontal vacancy, one vacancy under the OBC category was kept vacant. The topper in the UR category was considered and offered the post. The applicant‟s grievance is that since he was topper under the OBC category, he ought to have been considered against the said post. He submits that since he belongs to the „reserved‟ category‟, the respondents ought to have earmarked the „UR‟ vacancy to be filled by the OH candidate. The applicant has filed various representations. However, none of the representations have been answered and the present OA has been filed seeking the following relief(s) :-
“a) Quash and set aside the orders/actions of the respondents dated 31/05/2019 and 24/09/2019 placed at Annexure A/1 and A/2, respectively.
(b) Direct the respondents to further consider and appoint the applicant to the post of Sub Inspector (Ex e.) (Male) in Delhi Police.
(c) Accord all consequential benefits.
(d) Award costs of the proceedings; and
(e) Pass any order/relief/direction(s) as this Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicants.”
On issuance of notice, the respondents are contesting the OA and have filed the counter affidavit.
Respondents have stated that this post is identifiable and suited for the OH/PH persons and that one post is to be filled under this category. For the post of PGT Sociology, Tier-1 examination was conducted on 30.11.2014. As per the marks of the Tier-1 exam, ten candidates were shortlisted in the UR category for appearing in Tier-2. No candidate was found eligible for being shortlisted under the OBC and OH categories. The Tier-2 examination was conducted on 28.06.2015. The marks of Tier-2 were declared on 08.06.2016. Four candidates were called for document verification.
At the time of declaration of result, no OH candidate was available for selection against one post of OH. The Board endeavoured to find any guidelines/circular laying down, as to which category of post should be kept vacant in such situation. However, as the Board could not find any such instructions/circular, by default it was decided to declare the result of UR candidates who had higher rank. The candidate having rank-1 in merit was selected and the other vacancy which was an OBC vacancy, was kept unfilled. Accordingly, result for the post code was declared on 22.06.2016 vide Result Notice No.404, mentioning the above fact.
The applicant had represented the Board through PGMS seeking clarification why 01 OBC vacancy was left vacant. In this regard the applicant was informed that Board had acted in compliance of available instructions to keep a vacant post in regard to horizontal reserved posts of PH candidate in case a suitable PH candidate is not found.
As per DOP&T OM dt.29.12.2005 regarding the consolidated orders of persons with Disabilities (Equal opportunities, Protection of Rights & Full Participation) Act regarding inter se exchange and carry forward of reservations in case of Direct Recruitment it has been clarified that if any vacancy reserved for any category of disability cannot be filled due to no-availability of suitable person with that disability or for any other sufficient reason, such vacancy shall not be filled and shall be carried forward as a backlog reserved vacancy to the subsequent recruitment year.
Accordingly, as per the norms of the Disability Act, since no OH candidate was available for selection, out of 02 advertised vacancies, 01 vacancy was not to be filled and needed to be reported to user department as carried forward as backlog reserved vacancy of OH category. For complying the same, the Board selected the candidate having overall rank-1, who belongs to the unreserved category and kept unfilled the second vacancy, which in this case was of OBC category.
We have considered the rival submissions. It is an admitted fact that the applicant had participated under the OBC category and has scored 119 marks out of 200 whereas the one selected candidate under UR category Mr. Sunil Kumar has scored 129.25 marks. Admittedly, no candidate under OH category was available neither in the UR or the OBC category. Hence the respondents by declaring the result of the UR category, have not committed an error since the topper in the UR category has scored more marks than the applicant who is the topper in the OBC category. It is as per the rules and as per the extent rules. The post for the horizontal reservation has been provided for physically disabled. Therefore, the respondents have not committed any error in keeping the OBC post vacant so as to carry forward vacancy to be filled by PH category.
The purpose of an open selection for recruitment is akin to survival of the fittest. Since in this case the UR candidate has secured more marks, he deserves to be appointed over and above the applicant. Therefore, the action of the respondents is legal and not arbitrary and is based on sound reasons.
In view of the same, we do not find this is a fit case to be interfered with. OA is dismissed.