Ravinder Kumar & Ors. vs Delhi Subordinate Selection ...
2009 Latest Caselaw 2108 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                     Writ Petition (Civil) No. 2016/2008


                                        Date of Decision : 18.5.2009

RAVINDER KUMAR & ORS.                               ...... Petitioners
                                       Through :    Mr.Ajay Kumar,
                                       Advocate.


                                  Versus

DELHI SUBORDINATE SELECTION BOARD (DSSSB) & ORS.
                                  ...... Respondents
                        Through : Ms.Manju
                        Bhattacharya and Mr.Elgin
                        Matt John, Advocates.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        YES
3.     Whether the judgment should be reported
       in the Digest ?                                YES

V.K. SHALI, J. (Oral)

1. The petitioner in the instant writ petition has prayed for

production of records by the respondents with regard to the

process of appointment to the post of Primary Teachers which

was held in pursuance to the advertisement No.01/2002

published on 13.5.2002. It has been further prayed that the

respondent no.1/Delhi Subordinate Selection Board (DSSSB)

(hereinafter referred to as Board) be directed to recall the order of

surrender of the vacancies for the post of Primary Teachers to be

filled in by OBC candidates and direct the appointment of the

petitioners against one such vacancy each on account of their

having obtained the qualifying marks in the OBC category.

2. Briefly stated the facts leading to the filing of the present

writ petition are that the respondent no.1 issued an

advertisement bearing No.01/2002 on 13.5.2002 in the various

National dailies in Delhi inviting applications for the post of

Primary Teachers in the schools being run by respondent no.2.

The total vacancies shown in the said advertisement were 717

out of which 193 were to be filled up in the category of OBC. The

case of the petitioners, who are three in number, is that they had

applied for the appointment to the post of Primary Teachers in

OBC category in respect of which result was declared on

24.12.2003. It is stated that only 120 OBC candidates holding

the certificates issued by the Government of NCT of Delhi were

declared to be successful. The case of the petitioners is that all

three of them are holding the OBC certificates issued by the

competent authority of the Government of NCT of Delhi but

despite this they were not considered for the appointment to the

post of Primary Teachers by the respondents under mistaken

belief of their having not submitted the OBC certificates issued

by the Government of NCT of Delhi. It is further alleged that vide

order dated 05.2.2008 result of four more candidates issued out

of which two were OBCs.

3. The learned counsel has contended that the petitioner

learnt about the factum of their being ignored for the

appointment only through the information obtained by the

petitioner in the year 2008 in pursuance to their queries

furnished under the RTI Act, 2003 where upon he has without

any loss of time chosen to file the present writ petition. It was

urged by counsel for the petitioner that at the time when

examination was held in respect of the post in question, there

was no minimum marks fixed to be attained by any of the

candidates so as to enable them to get appointment to the said

post and therefore the appointment to the petitioner cannot be

denied.

4. As regards the delay in approaching the Court for redressal

of his grievance, the case of the petitioner is that delay was

occasioned on account of the litigation between the respondents

and some of the other candidates, who had filed their OBC

certificate purported to have been issued by the authorities

outside Delhi contending that they are also eligible. This writ

petition was decided in favour of the respondents. It is urged

that it is only on account of the pendency of the said writ petition

and the factum of respondents themselves having declared the

result of four candidates on 05.2.2008 and that the petitioner's

cause of action to file the present writ petition accrued now

which he availed of by challenging the action of the respondents

in surrendering the post and non-appointment of the petitioners

to the said post.

5. The respondent no.1 in its counter affidavit has contested

the claim of the petitioner. The factum of advertisement, the

number of posts, the number of candidates who have been

declared successful or the results having been declared on

05.2.2008 in respect of four candidates is not disputed.

6. The respondent no.1 has raised the question of delay and

laches in approaching the Court. Secondly, the factum that the

extra vacancies numbering around 69 under the OBC category

were surrendered and the fact that there were candidates who

are having more percentage of marks than the petitioners,

therefore, the petitioners could not be appointed. Secondly, it

was urged that the last candidate in the category of OBC, who

was appointed, was having 73 marks out of 120 while as the

petitioners had just 67, 70 and 56 marks respectively. It was

also averred that in pursuance to the decision of the High Court

of Delhi with respect to the litigation initiated by the persons who

are having OBC certificates issued by the authorities outside

Delhi, the Lt. Governor had taken a decision extending the

benefit of the OBC category to those persons also whose names

were appearing in the category of OBC in the Central list or the

list approved by the backward commission but in any case the

certificate had to be issued by the Competent Authority of

Government of NCT of Delhi and as this clarification given by the

Lt. Governor was prospective in operation, therefore, that is of no

help to the petitioners.

7. On merits, it was urged that the petitioners could not be

given appointment primarily on account of two reasons, firstly,

that the seats which remained unfilled were surrendered and

secondly, there were candidates who had obtained more marks

in aggregate than the petitioners and therefore, the petitioners

could not claim the appointment as a matter of right.

8. I have heard the learned counsel for the parties and

perused the record.

9. The learned counsel for the petitioner has very vehemently

contended that the respondents ought not to have surrendered

69 remaining vacancies in the category of OBC and the

petitioners ought to have been considered against the said

vacancies as all three of them were having a valid certificates of

OBC issued by the competent authority in Delhi and merely

because the percentage of one of the petitioners who was stated

to be lowest having a percentage of 56 could not be a ground for

denying him the appointment to the post in question as no

minimum criteria was fixed by the respondents while

recommending the name for the appointment.

10. As against this, the contention of the learned counsel for

the respondent was firstly that the writ petition is barred by

inordinate delay and laches. Secondly, the remaining posts

having been surrendered if at all in such direction for

appointment of the petitioner is issued such directions would be

futile direction as there is no posts against which he can be

appointed. Last but not the least even on merits, it was

contended by counsel for the respondent that the petitioners

have obtained much less marks than the last person who was

selected in OBC category. If it is assumed that the petitioner

ought to have been considered against the vacancy of OBC

category even than his number was too down in merit list.

11. The first and foremost question which arises for

consideration is as to whether the writ petition is barred by

inordinate delay and laches. There is no dispute about the fact

that the post of primary teachers were advertised on 13.5.2002.

The total number of vacancies which were advertised are 717 out

of which 193 were of OBC category. The result of these

vacancies was declared by the respondents on 24.12.2003. The

writ petition has been filed by the petitioner only after expiry of

nearly seven years without giving any cogent explanation as to

why he did not file the writ petition at an earlier stage when the

results were declared. No doubt, the provisions of the Limitation

Act are not applicable to the writ jurisdiction but the broad

parameters of the Limitation Act would govern the proceedings so

far as the filing of writ petition is concerned. It has been laid

down by the Apex Court that no straight jacket formula with

regard to the period within which the petitioner must come to the

Court can be laid down but it must be done as expeditiously as

possible and certainly within the period of limitation as is

prescribed under the Limitation Act for similar relief although in

a given case the period of limitation could be much less.

Reliance in this regard is placed on State of M.P. Vs. Bhailal

Bhai AIR 1964 SC 1006, wherein it has has observed as under:-

"the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed

by the Legislature as the time within which the relief by a suit in the Civil Court must be brought may ordinarily be taken to be a reasonable standard by which the delay is seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a Civil action for the remedy but where the delay is more than the period it will almost always be proper for the Court to hold that it is unreasonable"

12. The aforesaid preposition of law is kept in view while

examining the factual matrix of the case, the advertisement has

been floated on 13.5.2002 and the results declared on

24.12.2003 in the same year. The writ petition has been filed on

11.3.2008 that is after expiry of more than six years. The ground

on which the delay in filing the writ petition is sought to be

justified by counsel for the petitioner is the factum of the

litigation between the OBC candidates who had obtained the

certificates from outside Delhi on the one hand and the

respondents on the other. It is urged that since the matter was

subjudice, therefore, the petitioners choose to wait for the

outcome of the said decision and further it is stated that the

cause of action to file the writ petition cannot be seen in isolation

as the respondents themselves have declared result on 05.2.2008

in respect of two other OBC candidates. Therefore, the

petitioner's case also ought to have considered along with the

said case.

13. I do not find myself in agreement with this contention of

the learned counsel for the petitioner. The result of the Selection

process in question on the basis of which the names of 120

candidates were declared was done in December, 2003. It was in

December, 2003 that after declaring result of 120 candidates,

there were 73 vacancies which remained to be unfilled. The

petitioners ought to have approached the Court at the earliest

possible opportunity and certainly not beyond a year from the

date of declaration of the result that is up to the end of

December, 2004 for redressal of his grievance of not being

appointed as a Primary Teacher by the respondents. On the

contrary, the petitioners choose to sit at home and thereby this

gives an impression that they have reconciled to their fate of not

getting appointment to the post of Primary Teacher. Merely

because there was litigation between the OBC candidates who

were having certificates from the authorities outside the State of

Delhi which litigation continued for almost 5 to 6 years, would

not entitle the petitioners to get his delay in filing the writ

petition condoned. It may be pertinent further here to mention

that the petitioner was admittedly the candidate who has been

issued a certificate by the competent authority of the

Government of NCT of Delhi. Therefore, it does not stand to

reason as to why did the petitioner wait for the outcome of the

said writ as it was not going to affect the case of the petitioners

in general. Therefore, in totality of circumstances, I feel that the

case of the petitioner is hit by inordinate delay and laches and as

such deserves to be dismissed on this ground itself.

14. But we may now proceed to examine the matter even on

merits to see if the claim of the petitioners was justified or not.

In this regard, the original record shows that petitioner no.1's

rank was 4379, petitioner no.2's rank was 2543 and petitioner

No.3's rank was 17415. All these ranks are not disputed by the

petitioners. The respondent no.1 in its counter affidavit has

categorically stated that the last candidate who has been

appointed under the OBC category was having 70 marks out of

120. While as all the petitioners in the present case were having

much less marks than the last candidate so selected. Therefore,

it could not be said that the action of the respondent no.1 in not

treating him to be eligible to be selected cannot be found fault

with. It has also been stated by them that in between 67 to 73,

there are 100 candidates who had not been given appointment

under the said category and accordingly, the name of the

petitioners could not be considered. The contention of the

learned counsel for the petitioners that there were no minimum

qualifying marks in the test conducted in the year 2003 and the

Circular dated 05.2.2008 and the stand taken by the respondent

is that each of the OBC candidate must have qualifying marks of

35% each was prospective in operation and therefore, the

petitioner ought to have been appointed as Primary Teachers in

the category of OBC does not seem to be a valid submission.

There is no dispute that in the year 2007 when the decision is

taken that each of the OBC must get minimum 35% marks that

will be only prospective in operation and cannot be applied but at

the same time merely on account of the fact that no qualifying

marks were prescribed in the test in which the petitioners had

applied does not mean that whatever percentage of marks or

whatever total number of marks are obtained by the petitioners

that would entitle them for appointment in the category of OBC.

The respondents have very categorically and positively stated

that no person having less marks than the petitioners has been

appointed in the category of OBC and as a matter of fact the last

person who has been appointed in the category of OBC has 73

marks while as out of the three petitioners, the petitioner no.1

has 67 marks and others also have less marks like 70 and 56.

There is a wide gap in between the two set of marks obtained by

the last candidates and the petitioners. Even in these two slabs

of marks, it is stated that there are number of persons who are

having 70 marks which is fortified from the record. This fact is

also not denied by the counsel for the petitioner.

15. Therefore, all these facts clearly shows that even on merits,

the petitioners could not claim appointment as a matter of right

to the post of Primary Teachers in the category of OBC.

16. The last but not the least, the respondents have

surrendered these remaining 69 vacancies in respect of which

the candidates were not recommended. Since the posts itself

have been surrendered, it is not possible to direct the

respondents to recall the order of surrender of a post and declare

the petitioners to be qualified for being appointed to the said post

when according to the standard fixed by the respondent

themselves, the petitioners have not been declared to be

qualified. As a matter of fact, even if a direction is issued to the

respondents to appoint the petitioners, this would tantamount

for issuance of a futile writ as there is no vacancy which remains

to be unfilled on account of surrender of vacancies.

17. For the forgoing reasons, I do not find any merit in the writ

petition of the petitioners. The authority which has been cited by

counsel for the petitioner in support of his contention which is

titled as Andhra Pradesh Vs. P.Chandra Mouleesware Reddy

& Ors. 2006 (9) SCALE 252 is not applicable to the facts of the

present case. The facts of the said case were that there were 19

vacancies in respect of the post of DSP's which were advertised

and the State Services Commissioner conducted the test for

recruitment of these 19 vacancies but the State Government had

taken a decision to fill up only 10 vacancies. The said decision

of the State Government to fill up only 10 vacancies was set aside

by the Supreme Court on the ground that action of the

respondents cannot deprive right of the petitioners to get

appointed to the said post. In the instant case, there is no

decision taken by respondent no.1 or for that matter the user

department respondent no.2 that although the total number of

vacancies are 193 but only 120 should be filled up. As a matter

of fact out of 193 only 120 has were found to be duly qualified

according to the standard fixed by the Selection Committee and

the result of the said vacancies were declared by the

respondents. Therefore, the judgment relied upon by the

respondent is distinguishable from the facts of the present case.

18. For the forgoing reasons, the writ petition is barred by

inordinate delay and laches apart from the fact that the same is

without any merit and therefore the same is dismissed.

No order as to costs.

V.K. SHALI, J.

MAY 18, 2009 RN