Full Text
HIGH COURT OF DELHI
Date of Decision: March 07, 2013
DELHI SUBORDINATE SERVICES SELECTION BOARD .... Petitioner
Represented by: Ms.Zubeda Begum, Advocate with Ms.Sana Ansari, Advocate.
R-1.
Ms.Anjana Gosain, Advocate for R-2 to R-4.
DELHI SUBORDINATE SERVICES SELECTION BOARD ..... Petitioner
Represented by: Ms.Zubeda Begum, Advocate with Ms.Sana Ansari, Advocate.
R-1.
HON'BLE MS. JUSTICE PRATIBHA RANI PRADEEP NANDRAJOG, J.
2013:DHC:1265-DB
JUDGMENT
1. Receiving at the first instance a requisition to fill up 26 posts of Assistant Superintendent in the Central Jail Tihar, the Delhi Subordinate Services Selection Board (DSSSB) commenced selection process by issuing the necessary advertisement inviting applications and informing that of the 26 posts to be filled up the distribution would be: (i) UR-13; (ii) SC-04; (iii) ST-02; and (iv) OBC-07. The advertisement was subsequently modified when the Director General (Prison) intimated that not 26 but 46 vacancies had to be filled up as follows:- (i) UR-25; (ii) SC- 06; (iii) ST-03; and (iv) OBC-12. As per the advertisement, the age eligibility was between 18 years to 27 years; relaxable as per the Government of India norms (which we are informed is 5 years) for SC, ST and OBC candidates. The selection process required eligible applicants to first take an objective paper: Part I, the same being to shortlist the candidates who could then take the analytical/descriptive paper: Part II. A lower cutoff in the Part I paper was prescribed for SC, ST and OBC candidate vis-à-vis the candidates in the unreserved category.
2. Successful candidates after evaluating Part I paper were shortlisted to take the Part II paper; and needless to state the ST, SC and OBC candidates were granted the benefit of relaxation in the upper age limit; for those who claimed benefit thereof. Similarly, while drawing up the list of successful candidates at Part I examination, those who did not achieve the cutoff mark prescribed in the unreserved category, but were competing as SC, ST and OBC candidates were given benefit of relaxation in the prescribed cutoff point.
3. Completing the selection process after evaluating the answer sheets of the Part II examination, DSSSB notified the select panel consisting of 25 candidates in the unreserved category, 11 in the OBC category, 6 in the SC category and 3 in the ST category; and we highlight that as against 12 vacancies notified for OBC candidates the select list drawn up was of only 11 candidates and 1 vacancy was kept pending due to some dispute; nature whereof need not be noted by us as the same does not concern the instant dispute. The 3 lists are as under:- UR CATEGORY
┌────────────────────────────────────────────────────────────────────────────────────────┐ │ SL. ROLL NO NAME OF THE CAT D.O.B. MARK │ │ No. CANDIDATE MAIN │ │ EXAM │ ├────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. 1213626 DEEPAK KUMAR UR/OBC 31.08.83 123 │ │ RANA │ │ 2. 1212653 PARVEEN KUMAR UR/SC 17.06.82 116 │ │ 3. 1213661* SUNIL UR 02.12.82 116 │ │ 4. 1212803 JITENDRA KUMAR UR 15.03.83 115 │ │ PATEL │ │ 5. 1213521 CHETNA GUPTA UR 09.09.81 115 │ │ 6. 1214561 KUMAR RAJESH UR 28.02.82 114 │ │ 7. 1212107 NAVEEN KUMAR UR 26.06.85 114 │ │ 8. 1212841 KAVINDER UR 17.05.84 114 │ │ 9. 1213029 RAJNISH KUMAR UR 10.08.83 114 │ │ 10. 1214589 DEEPAK SAROHA UR 26.09.81 113 │ │ 11. 1213361 VIKAS UR 24.04.83 113 │ │ 12. 1210414 HARI OM UR 19.01.82 113 │ │ 13. 1212337 SANDEEP UR/OBC 17.09.81 113 │ │ 14. 1213599 ROHIT MANN UR/OBC 08.09.84 113 │ │ 15. 1211614 SURJEET KUMAR UR 08.08.82 113 │ │ 16. 1211934 DEEPAK SHARMA UR 03.02.87 113 │ │ 17. 1213538 ANUJ KUMAR UR/OBC 02.06.82 113 │ │ 18. 1212411 AKHILESH RATHORE UR 01.01.82 113 │ │ 19. 1213099 PRADEEP UR 05.08.82 112 │ │ 20. 1213362 HARI KISHAN UR/EX. 01.09.71 112 │ │ SHARMA │ │ 21. 1210325 MANISH MALIK UR 27.09.85 111 │ │ 22. 1212556 PRASHANT DAGAR UR 21.05.87 111 │ │ 23. 1214507 YOGESH UR 06.03.83 111 │ │ WP(C) 5222/2012 & 915/2013 Page 3 of 12 │ │ 2013:DHC:1265-DB │ │ 24. 1212205 HARIOM AHLAWAT UR 05.07.87 111 │ │ 25. 1213645* SOMKANT KHARE UR 05.07.84 111 │ │ *Provisional subject to verification of signatures which has │ │ slight variations. Copies of OMR Answer sheets containing │ │ declaration written by the candidates in their own │ │ handwriting are placed in their respective dossiers. │ │ OBC CATEGORY: │ │ MAIN │ │ EXA │ │ M │ │ 1. 01212583 ANIL KUMAR OBC 28.09.80 116 │ │ 2. 01210216 NEERAJ KUMAR OBC 25.03.80 115 │ │ 3. 01213571 PARAMVEER OBC 07.03.81 113 │ │ 4. 01210226 NAVEEN DAHIYA OBC 25.12.79 112 │ │ 5. 01214022 MUKESH OBC/DE 01.05.75 112 │ │ 6. 01214419 PRADEEP KUMAR OBC 29.11.79 111 │ │ MANN │ │ 7. 01214064* SURENDER KUMAR OBC 01.04.83 111 │ │ DAGAR │ │ 8. 01212723 LAXMI GOLA OBC 23.03.80 110 │ │ 9. 01211935 YOGENDER SINGH OBC 07.06.83 110 │ │ (YOGINDER SINGH) │ │ 10. 01212533 SANJAY KUMAR OBC 01.12.81 110 │ │ 11. 01214051 PUNISH OBC 10.11.82 109 │ │ *Provisional subject to verification of signatures which has │ │ slight variations. Copy of OMR Answer sheet containing │ │ declaration written by the candidates in his own handwriting │ │ is placed in dossier of the candidate. │ │ SC CATEGORY: │ │ EXAM │ │ WP(C) 5222/2012 & 915/2013 Page 4 of 12 │ │ 2013:DHC:1265-DB │ │ 1. 01213461 DHARMENDRA SC 08.05.79 113 │ │ SINGH MAURYA │ │ (TOMAR) │ │ 2. 01214010 DEEPAK KUMAR SC 19.04.79 112 │ │ 3. 01210693 UDAI RAJ SINGH SC 20.11.82 111 │ │ 4. 01214075 RAHUL KARDAM SC 04.09.80 111 │ │ 5. 01214627 GHANSHYAM DAS SC 22.11.80 108 │ │ 6. 01210063 JAGDISH SC 31.07.85 107 │ │ ST CATEGORY: │ │ EXAM │ │ 1. 01212959 DHARAM SINGH ST 15.10.85 110 │ │ MEENA │ │ 2. 01213350 CHET RAM MEENA ST 10.07.83 107 │ │ 3. 01212745 AKASH KUMAR ST 02.02.87 107 │ │ MEENA │ │ 4. Taking a stand that while drawing up the select panel, │ └────────────────────────────────────────────────────────────────────────────────────────┘
11.
SANJAY KUMAR PUNISH OBC OBC 01.12.81 10.11.82 *Provisional subject to verification of signatures which has slight variations. Copy of OMR Answer sheet containing declaration written by the candidates in his own handwriting is placed in dossier of the candidate. SC CATEGORY: SL. No.
ROLL NO NAME OF THE CANDIDATE CAT D.O.B. MARK MAIN EXAM
1. 01213461 DHARMENDRA SINGH MAURYA (TOMAR) SC 08.05.79 113
2. 01214010 DEEPAK KUMAR SC 19.04.79 112
3. 01210693 UDAI RAJ SINGH SC 20.11.82 111
4. 01214075 RAHUL KARDAM SC 04.09.80 111
5. 01214627 GHANSHYAM DAS SC 22.11.80 108
6. 01210063 JAGDISH SC 31.07.85 107 ST CATEGORY: SL. No.
ROLL NO CANDIDATE CA T D.O.B. MARK MAIN EXAM
1. 01212959 DHARAM SINGH MEENA ST 15.10.85 110
2. 01213350 CHET RAM MEENA ST 10.07.83 107
3. 01212745 AKASH KUMAR MEENA ST 02.02.87 107
4. Taking a stand that while drawing up the select panel, inadvertently it went unnoticed that candidates who had obtained same number of marks required them to be placed in the order of merit with reference to the date of birth; the elder being ranked above the younger, DSSSB claimed that 6 candidates in the unreserved category had obtained 111 marks and that the list pertaining to the unreserved candidates required to be redrawn as under:-
┌───────────────────────────────────────────────────────────────────────────────────────────┐ │
┌─────────────────────────────────────────────────────────────────────────┐ │ SL. ROLL NAME OF THE CAT D.O.B. │ │ No. NO CANDIDATE │ ├─────────────────────────────────────────────────────────────────────────┤ │ 1. 01210716 Ram Babu OBC 05.08.77 │ │ 2. 01214580 Rajpal Singh OBC 01.04.82 │ │ 3. 01211779 Subodh Gahlot OBC 09.05.82 │ │ 4. 01214547 Manoj Rana OBC 01.08.82 │ │ 5. 01214051 Punish OBC 10.11.82 │ │ 6. 01210722 Sarita Yadav OBC 08.12.82 │ │ 7. 01210354 Pradeep OBC 19.07.83 │ └─────────────────────────────────────────────────────────────────────────┘
8. The result was that Hariom Ahlawat and Punish faced threat of losing their job and both approached the Central Administrative Tribunal questioning the lists being redrawn.
9. Deciding OA No.3429/2010 filed by Hariom Ahlawat the Tribunal found, and we quote from the order of the Tribunal:- “In their counter reply dated 22.12.2010, the DSSSB has submitted the revised merit list in respect of candidates with marks 111 as per their age. The list shows a total 11 candidates; the name of the applicant figuring at serial No.10. In this list, four candidates have actually been shown as selected under the reserved category (Sl.1, 2, 3 and 5) Sl. No.8, Manjeet whose name had been recommended as a substitute for Hariom Ahlawat had the applicant not continued in service. As per the remarks column, he had ‘left’. Taking this into account, the rank of the applicant which initially was sixth on leaving of Manjeet it came down to fifth. Further among the candidates selected, two (Shri Anuj Kumar and Shri Sandeep) had not joined/had resigned within six months respectively. As per Shri Ajesh Luthra, the learned counsel for the applicant, out of the originally notified 25 vacancies under the UR category, still two more vacancies remained unfilled, against which the appointment of the applicant could be sustained.”
10. The factual content of the aforesaid paragraph were not refuted before us.
11. Allowing the claim of Hariom Ahlawat, the view taken by the Tribunal is that all notified vacancies had required to be filled up and thus, subject to a candidate obtaining the minimum eligible cutoff marks, right to appointment accrued to such candidates who would find a place in the category of appointed candidates if candidates higher up in the merit did not join or whose papers were found to be wanting.
12. Allowing O.A.No.3433/2010 filed by Punish vide order dated November 16, 2011, the reasoning of the Tribunal is similar to its earlier decision where the Tribunal has noted that discounting those OBC candidates who had either not joined or whose papers were found to be not in order, Punish would find a place amongst 11 candidates.
13. Challenge to the two decisions is by DSSSB; and we highlight not the Director General (Prisons), who seems to be happy for the reason the population of prisoners, both undertrials as well as convicts in the Central Jail Tihar is far in excess of the capacity of the prison and thus he needing all posts to be filled up.
14. The grievance to the impugned decisions by DSSSB, is that it had drawn up a select panel of only 25 candidates in the unreserved category and 11 in the OBC category and thus the effect of the impugned decisions is the elongation of the select list.
15. We have repeatedly passed orders that it is the Service Department which has to take the decision whether to maintain a wait list or not. The DSSSB is merely a recruiting agency and is not the competent authority to decide whether or not a wait list has to be maintained. We have been noticing in the past that since a large number of candidates apply for a few posts, due to shortage of manpower, DSSSB does not scrutinize the applications with reference to the documents annexed by the candidates with respect to the eligibility conditions being fulfilled. After the selection process is over, DSSSB scrutinizes the certificates filed by the candidates with their application forms. As in the instant case, where candidature of 3 OBC candidates was rejected on account of not producing the relevant OBC certificate, we found in other cases, similar things happening pertaining to not only OBC candidates but even ST, SC as well as General category candidates, for the latter, issues pertaining to acquiring eligibility as of the cutoff date arose, rendering them ineligible.
16. Now, as in the instant case, if only 11 OBC candidates are shortlisted in the merit list and thereafter it is found that 3 are ineligible, we see no justification for the Board to only forward names of 8 candidates to the Service Department. Ineligible candidates being removed, subject to eligibility and qualifying, 3 more candidates have to be included in the select panel and names forwarded to the Service Department. Besides, we find that considerable time, sometimes up to as many as 2 years lapses, between the dates when applications are invited from eligible candidates and results declared. We have been noticing that in large number of such cases many candidates obtain gainful employment elsewhere and notwithstanding finding a place in the select list do not even respond to the letters offering appointment. Since select list is restricted to the number of vacancies, upon said candidates not responding to the letters offering appointment, the posts remain unfilled.
17. Crores of rupees are spent on the establishment of the DSSSB. Crores of rupees are spent by DSSSB while issuing public advertisements inviting applications. Simple logic demands that maximum benefit of revenue spent should be attempted to be achieved.
18. It hardly needs any emphasis to state that public interest is served when public posts are filled up. Public interest suffers when public posts remain vacant. The law of the land is that nobody has a vested right to be appointed even when a vacancy is notified and the person has qualified, but subject to the exception that there should be a good justification to not fill up the vacancy. Meaning thereby, filling up of a notified vacancy is the norm and not to fill up the same is the exception.
19. Since admittedly, both Hariom Ahlawat and Punish had qualified at the main exam and some persons above them in the redrawn merit list have either not joined or were found ineligible, and as a result vacancies are available to be filled up by said two persons; noting further that both of them were issued letters offering appointment as per the first list drawn up, we find no infirmity in the view taken by the Tribunal on the given facts of the case. We note that Hariom Ahlawat had been offered appointment in CISF which he did not accept because he found the instant employment. Equities are in his favour. Similarly, Punish had been offered a job by HDFC Bank which he did not accept having obtained the instant employment.
20. Before closing we would like to observe, with reference to the facts of the instant case, that DSSSB is not following a logical step wise process to draw up the select list.
21. Since as per law, if those who seek benefit of reservation, obtain marks high up in the merit list and would find a place while competing with unreserved/general category candidate have to be listed in the unreserved category, while drawing up the lists DSSSB has to take care of the situation where a candidate, pertaining to eligibility, competes on the strength of being a SC/ST or OBC candidate. For example, if the upper age qualification requirement is 27 years, relaxable by 5 years for SC/ST/OBC candidate, any person who takes benefit of relaxation has to compete in his/her category. Similarly, as in the instant case, pertaining to Part I examination, qualifying marks for unreserved category were more than those in the reserved category. Those who earned the right to participate at the Part II selection process after availing the benefit of being in the reserved category; with reference to the qualifying marks obtained at the Part I examination have likewise to retain their character as reserved category candidates and cannot merge with the unreserved category candidates irrespective of the marks they obtain at the Part II examination. To put it in simple words. A reserved category candidate must join the race and complete the same without availing any benefit of being in the reserved category if the name of the candidate has to be placed in the merit list pertaining to the unreserved category.
22. Noting that in the instant case, as a result of the revision effected in the select list when error committed of not placing candidates with equal marks in the descending order with reference to the date of birth was noted, the two respondents before us would not find themselves within the first 25 and 11 candidates respectively in the list of unreserved and OBC candidates, but having obtained marks above the cutoff limit and enough number of candidates above them either being later on found to be ineligible or did not respond to the letter offering appointment or joining and resigning within a month or two resulting in the notified vacancies in the two categories not being filled up, we do not disturb the final directions issued in the two orders passed by the Tribunal.
23. The writ petitions are accordingly dismissed but without any orders as to costs.
(PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI)
JUDGE MARCH 07, 2013 dk/mm