Kuldeep Singh And Anr. vs D.S.S.S.B And Anr.
2005 Latest Caselaw 281 Del

JUDGMENT

Vikramajit Sen, J.

1. These writ petitions raise an important question which will have an impact on every citizen of India aspiring for Government appointment through the aegis of the Delhi Subordinate Services Selection Board (in brief 'DSSSB'). In the present case we are concerned with the Advertisement carried in Sundry National Dailies in respect of the Miscellaneous Posts-2002 in which the User/Requisitioning Department is the Municipal Corporation of Delhi. The Advertisement discloses that there were 421 vacancies on the post of Assistant Teacher (Primary) in the Unreserved (UR) category. The Petitioners before the Court belong to this category. The Examinations were conducted on 27.10.2002. A 'Merit List' which I consider to be more in the nature of the Examination Result was thereupon prepared by the DSSSB in respect of each and every candidate who had appeared in that Examination. The Advertisement did not contain any stipulation pertaining to the minimum qualifying marks that should be obtained by every asp rant. It did not also contain any clause indicating the maximum time limit for exhausting the vacancies envisaged in that Examination.

2. The case of the DSSSB is that since there were 421 vacancies in the unreserved category, they had drawn a line after the 421st candidate who incidentally had obtained 86 marks along with several others. So far as the DSSSB is concerned with this exercise, the vacancies stood exhausted. This, however, is not the view of the Municipal Corporation of Delhi which appears to have communicated with the DSSSB on more than one occasion asking it to forward names of 66 candidates as late as on 04.02.2004 followed by a reminder on 15.06.2004 In the last communication, the number of posts mentioned by the Municipal Corporation of Delhi have increased to ninety. Counsel for the Municipal Corporation of Delhi states that this increase related only to the Examination-2002 but this assertion is disputed by the DSSSB. This controversy does not need to be resolved today, since it is my understanding that what needs to be set down is the procedure which should be followed in all Examinations so as to ensure that he candidates do not receive a setback to their legitimate expectations, and there is no violation of the equality imperative.

3. It has already been observed that no minimum marks have been stipulated for the Examination which is indeed a salutary condition. Across the Bar it is accepted that there would not be legal infirmity in specifying minimum qualifying marks. As is always to be expected from the list of 421 candidates, it appears that some persons have not sought employment. It is also conceivable that on checking the educational qualifications at the last stage, it may have been found that some of the persons who had come within the so-called 'zone of consideration' (in the present case-421 candidates) did not possess the necessary qualifications and would be disentitled for appointment. The central question that arises, therefore, is how these vacancies should be dealt with by the DSSSB as well as the User Department.

4. In my view, it would not be possible to foreclose who would fall within the zone of consideration until all 421 posts are duly filled up especially where a minimum qualifying mark is not specified. It may be possible that 30 persons between 1 to 421 are no longer desirous of taking employment. The resultant effect is that persons up to 451 would become eligible for consideration. It may again be possible that 10 persons would be found to be ineligible due to discrepancy in their educational qualifications. The result would be that persons up to 461, therefore, would fall within the zone of consideration. These are only random figures taken by me.

5. Ms. Zubeda Begum, counsel for DSSSB states that it would become impossible for the DSSSB to conduct Examinations if the procedure presently pursued by it is not continued. She also states that there are several writ petitions pending in this Court in which the seniority issue has been raised for adjudication. According to her, persons who have been given appointment on a later date have claimed seniority from the date on which they had qualified in the Examination. That question must be decided in hose writ petitions and it will be wholly inappropriate for me to venture into this controversy.

6. It would also be a salutary practice to indicate in the Advertisement itself the outside date by which the entire List of a particular Examination would be deemed to have been exhausted. Coming back to the present Examination which was held on 27.10.2002 and in respect of which the Merit List was published on 27.12.2002, the outside limit could have been pegged at 45 or 60 days thereafter. It is essential that the public should know which is the date on which their candidature would lapse. In this date is indicated, persons falling within the 421st serial number in the Merit List would be fully aware that if they did not utilize or act upon their success in the Examination for actual employment, their rights under that particular Examination would stand extinguished on that particular date. It would also enable persons who had not initially fallen within the cut-off number to be vigilant and pursue their employment, strictly in accordance with the Merit List, within the period which would logically and necessarily extend beyond the 45 or 60 days randomly indicated above. If this procedure is followed then no person who has appeared in the Examination would have any justiciable grievance.

7. The question requiring to be dealt with is whether it is open to the DSSSB to carry forward vacancies which have occurred in a particular Examination. It appears that about 90 persons who had come within the zone of consideration as contemplated by the DSSSB did not report for appointment. Are these 90 vacancies to be filled up in subsequent examinations? In my view, that would be unfair to persons who have come within the extended zone of consideration in that Examination. In the present case, the Municipal Corporation of Delhi has not taken the stand that the Merit List stood exhausted at Serial No. 421 and accordingly, it repeatedly asked the DSSSB to send further names of candidates from that Examination. In view of the analysis above, it would no longer be possible for the User Department to take a contrary stand, i.e, that persons who had not come within the initial zone of consideration would become ineligible for appointment, unless this is specifically mentioned in the Advertisement or Rules.

8. Counsel for the Petitioner draws my attention to Annexure-B to the Affidavit dated 14.02.2005 in which ten candidates have been granted appointment from the List pertaining to Examination-2002. Learned counsel for the Respondent clarifies that in consonance with the approach adopted by the DSSSB, these ten persons would fall within the original Merit List drawn up by them, i.e, Ms. Vibha Jain, Ms. Anjana Rani and Mr. Sunil Kumar had obtained higher marks than Ms. Ritu Garg who is at Serial No. 421.

9. These writ petitions are disposed of with the following directions:-

A. Every User/Requisitioning Department must indicate to the DSSSB the number of the posts that are vacant against every category, and all of them should normally be filled up from the eligible candidates according to their standing.

B. If the User Department, in consultation with the DSSSB, is desirous of prescribing minimum qualifying marks, that should be mentioned clearly in the Advertisement itself.

C. The Advertisement must declare a period, which should be ninety (90) days, after the publication of the entire Merit List. This period has been recommended pursuant to a consensus between the DSSSB and the MCD. Within this period every successful candidate must take steps towards finalization of the employment. After that date, the rights of persons falling in the original zone of consideration lapse or get extinguished. Thereafter, for the further prescribed period intimated in the Advertisement itself, persons below the original zone of consideration, would be entitled to claim employment strictly in the order of merit. It is suggested that this period should be 45 days. After this period, the Merit List for that particular Examination would s(sic) and automatically exhausted. Since DSSSB is not the actual employer it cannot retain any power to carry forward the lapsed vacancy to any other Examination. It would be for User Department to indicate vacancies for any subsequent examinations. Learned counsel for the DSSSB states that the Division Bench of this Court had directed that the Examination should be held on a yearly basis so that sufficient numbers of Teachers are always available. In the schedule suggested above, these Orders would be easily implement able.

D. It is also directed that the entire List should be published on the Notice Board and on the NET so that every candidate would not have to take recourse to the Freedom of Information Act and would easily gain knowledge of his standing in the Merit List.

10. This writ petition is disposed of granting appointment to Petitioner No. 2 who is at Serial No. 459 in the Merit List thereby falling within admitted 66 vacancies. The DSSSB shall issue Letters to all those candidates from Serial No. 425 to 491, subject to their eligibility. If the posts are not filled then Petitioner No. 1, shall, in the peculiar circumstances, be given employment, subject to his candidature ripening in his turn of merit. These Orders shall not operate retrospectively.