Shri Sanjay Kumar vs Govt.Of Nct Of Delhi And Ors. ...
2004 Latest Caselaw 366 Del

JUDGMENT

Pradeep Nandrajog, J.

1. An advertisement was issued by Delhi Subordinate Service Selection Board (DSSSB) inviting applications from eligible candidates to be appointed as Welfare Officer Grade II in the Department of Social Welfare under the Government of NCT of Delhi. Petitioners applied under the OBC category. The candidates who had applied, which included the petitioners were subjected to a written examination. Based on performance in the written test, some candidates which included the petitioners were called for an interview. Only one OBC candidate was finally offered appointment as against 10 vacancies notified as falling in the quota of OBC candidates. Petitioners have filed two captioned petitions alleging that since there exists vacant posts falling to the quota of OBC candidates, there is no reason as to why only one OBC candidate be appointed. Petitioner alleged that the Board is obliged to effect selection to all the notified vacancies and cannot adopt a criteria of having minimum cut off marks. It is allged that the Board has no jurisdiction to lay down any norm of selection unless it is specifically authorised by a rule to lay down a norm for selection.

2. Case of the respondent is that it received a request from the Government of NCT of Delhi to recommend, among others, 7 OBC candidates to be appointed as Welfare Officer Grade-II. It issued an advertisement on 31.7.1998. After completing the process of selection, only three names could be recommended. Four OBC vacancies remained unfilled. Subsequently, on 2.8.1999, it received further requisition to fill up 26 posts of Welfare Officer Grade-II, 10 falling to the quota of OBC candidates. It issued an advertisement on 26.11.1999 inviting applications but thereafter it received letter dated 29.12.1999 intimating that instead of 26 posts, only 11 were to be filled up, 3 of which fell in the OBC quota. Thus, the total vacancies which required to be filled were 4 unfilled vacancies of the year 1998 and 3 vacancies of the year 1999, in all, 7 in number. Written examination was held on 23.7.2000. Result was declared on 12.9.2000. 47 candidates which included 8 OBC category candidates were called for interview. After the interview, names of the candidates were put in a serial number in order of merit. 6 candidates under the unreserved category and one each in the OBC and ST category were recommended. It is stated that of the 8 OBC candidates shortlisted, only one could finally make it in the merit and in that view of the matter, petitioners were not empanelled and their names were not forwarded to the Government of NCT of Delhi to be appointed as Welfare Officer Grade-II.

3. Since the marking pattern and marking scheme was not disclosed in the counter affidavit, record was looked into at the time when arguments were heard on 5.4.2004.

4. Record would reveal and this finds mention in the advertisement itself that it was intimated to the candidates that mode of selection could include written test/ examination, professional practice test, proficiency test, skill test and personal interview as and when necessary. At serial No.14 of the instructions, following was notified to the candidates :

"14(a) The mode of selection may include written tests/examinations, Professional Practice Tests, proficiency Tests, Skill Tests and Personal Interviews, as and when necessary. The Board, at its discretion, can design the structure of the selection process and use critical data such as Educational Qualifications, Work Experience, Examination Marks, as criteria to determine eligibility of preliminary screening of the candidates. The Board may also conduct specific Practical Tests, Health Tests, Oral Tests, as and when deemed necessary.

(b) Where the number of applications received in response to the advertisement are large and it will not be convenient or possible for the Board to interview all the applicants, the Board may restrict the number of applicants to a reasonable limit on the basis of either qualifications and experience higher than the minimum prescribed in the advertisement or on th basis of experience higher than minimum prescribed in the advertisement in the relevant field, or by holding a Screening Test. The applicants should, therefore, mention all the qualifications and experience in the relevant filed over and above the minimum qualification and should attach attested copies of the certificates in support thereof."

5. A perusal of instruction 14 noted above would show that under sub-clause (b) thereof, the Board had reserved the right to effect scrutiny by holding a screening test to restrict the number of candidates to be considered on merits. Law recognises screening to cut off the number of candidates to be considered, more so, when interview has to follow because a meaningful interview would require minimum 30 minutes per candidate to test the knowledge, acumen and personality of a candidate. Indeed, counsel for the petitioners conceded that the petitioners had no objection to the conduct of a written test.

6. Record, which was produced, would further reveal that the Board had allocated 120 marks to the written test. 20 marks were allocated to the interview. Thus, candidates were ranked in order of merit out of a total of 140 marks. Record would reveal that 32 candidates in the general category, last of whom had obtained 63 marks out of 120, were called for interview. 8 candidates in the OBC category, last of whom had secured 30 marks out of 120, were called for interview. Record would further reveal that the candidates were interviewed and were placed in order of merit by taking into account the sum total of marks obtained by them in the written examination and interview. The qualifying mark adopted by the Board was the marks secured by the unreserved candidate who was at the bottom. Relaxation of 10 marks to OBC candidates, 15 marks to SC candidates and 20 marks to ST candidates were given. Record reveals that in the unreserved category, the last candidate selected obtained 87 marks. Giving relaxation of 10 marks to OBC candidates, qualifying mark for the OBC candidates was taken at 77 marks. Only one candidate Shri Tarun Yadav who had secured 77 marks qualified. Petitioner Sanjay Kumar had obtained 64 marks and the petitioner Akhilesh Kumar had obtained 48 marks. In other words, petitioner Sanjay Kumar obtained 45.6% marks and petitioner Akhilesh Kumar obtained 34.3% marks. The last candidate in the unreserved category obtained 55% marks.

7. Learned counsel for the petitioner would urge that written test was the screening test and all those who had qualified in the written test were entitled to be recommended for appointment in order of merit after the interview was held. Counsel contended that interview was not intended to effect selection, in that, to determine suitability. Counsel contended that suitability was to be assessed at the written test and interview was to determine the order of merit. In support of the said contention, counsel relied upon an unreported decision of the the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No.4713/87, Vinod Prakash Singh & Ors. Vs. UPSEB & Anr. The said judgment would reveal that following was the question posed to be answered :

"The short question of law that arises for consideration in this petition is if a candidate having qualified in written examination is called for interview and the number of such candidates is lesser than the vacancy then can they be denied selection or appointment because they could not come in merit list."

8. The said judgment would reveal that the respondents therein allocated 120 marks for written examination, 40 marks for group discussion and 40 marks for personality test. Merit list was prepared on the basis of total marks obtained in the three. While preparing the merit list, a lesser number of candidates were recommended for being appointed because the respondent had prescribed cut off marks. Judgment would reveal that what weighed with the Court was the fact that pleadings were vague and it was not specified as to what minimum qualifying marks were prescribed. The judgment would reveal that the Division Bench observed that unless any minimum marks were prescribed, everyone who qualifies in the written test, was entitled to be placed in the merit list. Following observation of the Division Bench are relevant and may be noted:-

"Merit list was to be prepared, admittedly on total marks obtained. But if the vacancies were more than the number of candidates then every one who qualified in written test was entitled to be placed in the merit list unless the committee fixed any minimum mark either in personality or group discussion or of the total marks obtained. In counter-affidavit it has been vaguely asserted that petitioners could not secure the minimum in aggregate but they did not specify what it was. Therefore, if only 36 candidates were called and vacancies were 35 then the petitioners could not be excluded as admittedly only 24 from backward class were selected. Merit list is prepared on number of marks obtained amongst competing candidates. But where there is no competition because the number of candidates was lesser or equal to vacancies available then each one was entitled to be selected. Eligibility stood decided by written test. And selection because of absence of competition."

9. Petitioner also relied upon the judgment of the Madras High Court reported as 1992 (4) SLR 137, Arulappa Vs. Union of India. Perusal of the said judgment would reveal that what weighed with the Court was that prescription of minimum cut off marks was not indicated anywhere in the procedure prescribed for selection and, therefore, it was held that it was obligatory on the part of the Commission to recommend in order of merit without prescribing a cut off point, the candidates commensurate with the number of vacancies to be filled. Following are the observations of the Court :

"When the prescription of minimum cut off mark was not indicated anywhere in the procedure prescribed for selection and when the second respondent is not in a position to point out any rule or regulation which gives the power to the Chairman to fix minimum cut off mark, the reason given by the respondent in the impugned order and in para 5 of the counter affidavit for not selecting the petitioner for the post of Financial Analyst cannot be sustained."

10. Perusal of the judgment of Madras High Court would show that in so holding, it relied upon the decision of the Supreme Court reported as , Shri Durgacharan Misra Vs. State of Orissa. Perusal of the judgment of the Madras High Court would further reveal that the Chairman of the Commission had prescribed a minimum cut off mark to be obtained even in the interview as a qualifying mark. In other words, it was not the sum total of marks which was the sole criteria. An additional criteria of securing certain number of minimum marks in the interview as well, was added as a criteria in the selection process by the Chairman.

11. A perusal of the decision of the Supreme Court in Shri Durgacharan Misra's case (supra) would reveal that while effecting selection of candidates for subordinate judicial service in the State of Orissa, a criteria of minimum qualifying marks in the viva voce test was introduced. This was contrary to the rules and in particular Rule 18 of the Orissa Judicial Service Rules,1964. Said rule mandated that names of candidates would be arranged by the Commission in order of merit. The order of merit being the marks obtained by a candidate in the written test plus the marks obtained at the viva voce test. Since the rule mandated the manner in which order of merit had to be prepared, the Supreme Court held the decision of the Commission to deviate from the same as illegal.

12. In the decision reported as , State of Haryana Vs. Subash Chander Marwaha & ors. noting the fact that the Commission while preparing the select panel had recommended the names of only such candidates who had obtained 55% marks and above and further noting that the rules prescribed 45% marks as the eligibility for selection, Supreme Court held :

"10. It was, however, contended by Dr.Singhvi on behalf of the respondents that since rule 8 of Part C makes candidates who obtained 45 per cent or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in the list, each one of then stands on a separate level of competence as compared with another. That is why Rule 10(ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for more eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55% for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of 55% for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. That the Punjab Government later on fixed a lower score is no reason for the Haryana Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who get less than 55% have no right to claim that the selection be made of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened Rule 8 of part C."

13. It may be noted, evidenced by para 2 of the judgment of the Supreme Court, that as a result of the aforesaid, only 7 of the 15 notified vacancies came to be filled up. 8 vacancies remained unfilled. The judgment of the Supreme Court in Subash Chander Marwaha's case highlights the legal position that it is open to the Government with a view to maintain high standards of competence to fix a score which is higher than the one required for mere eligibility and that merely because certain posts remained unfilled, as a result of the aforesaid, would not entitle the candidate who was otherwise eligible to obtain a mandamus from the Court to fill up all the vacancies.

14. Merely because vacancy exist and remained unfilled after the process of selection is finally closed would not entitle a shortlisted candidate to be appointed against the post as long as the employer acts on a rational basis and pursuant to a rational criteria.

15. On facts, it may be noted that the Board has prepared the order of merit on the basis of the aggregate marks obtained by the candidates at the written test and the interview. No criteria of minimum qualifying marks in either of the two as an additional criteria has been followed. The advertisement in question vide instruction 14 clearly indicated that the Board would be free to fix any method of selection which would include amongst others a written test and an interview. Petitioner Sanjay Kumar obtained 45.6% marks and the petitioner Akhilesh Kumar obtained 34.3% marks. Number of marks obtained were 64 and 48 respectively out of 140 marks. Criteria applied was to grant relaxation up to 10 marks viz-a-viz the cut off point which was the marks obtained by the last unreserved category candidate. The candidate placed at the bottom of the minimum list in the unreserved category had obtained 87 marks i.e. 55%. Except for stating that the Board was obliged to fill up all the vacancies, no challenge has been made to the criteria adopted for effecting selection. In view of the decision of the Supreme Court in Subash Chander Marwaha's case (supra), I find no merits in the two writ petitions. The same are accordingly dismissed. However, there shall be no order as to costs.