Delhi High Court
Delhi Subordinate Services ... vs Sanjay Kumar & Ors. on 25 October, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On:19th October, 2010
Judgment Delivered On:25th October, 2010
+ W.P.(C) 12399/2009
DELHI SUBORDINATE SERVICES SELECTION BOARD AND
ANR ..... Petitioners
Through: Mr.Ankur Chhibber, Advocate
for Ms.Jyoti Singh, Advocate
versus
SANJAY KUMAR AND ORS ...... Respondents
Through: Mr.R.K.Shukla, Advocate with
Mr.Arvind Kumar, Advocate
W.P.(C) 12406/2009
DELHI SUBORDINATE SERVICES SELECTION BOARD AND
ANR ..... Petitioners
Through: Mr.Ankur Chhibber, Advocate
for Ms.Jyoti Singh, Advocate
versus
JAI KUMAR AND ORS ...... Respondents
Through: Mr.R.K.Shukla, Advocate with
Mr.Arvind Kumar, Advocate
W.P.(C) 12419/2009
DELHI SUBORDINATE SERVICES SELECTION BOARD AND
ANR ..... Petitioners
Through: Mr.Ankur Chhibber, Advocate
for Ms.Jyoti Singh, Advocate
versus
RAVINDER AND ORS ...... Respondents
Through: Mr.R.K.Shukla, Advocate with
Mr.Arvind Kumar, Advocate
WP(C) 12399/2009 Page 1 of 6
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. On 23.07.2003, at the request of the Delhi Fire Services,
Government of NCT of Delhi, the Delhi Subordinate Services
Selection Board (DSSSB) issued an advertisement inviting
applications from eligible candidates for being appointed as
„Fire Operator‟. In the advertisement the applicable
educational and other qualifications were notified to the
candidates as also the procedure of selection. Pertaining to
educational and other qualifications it was prescribed the
minimum educational qualification would be a matric pass or
equivalent. It was notified that the candidates should possess
a valid licence for driving heavy duty vehicles. Pertaining to
the mode of selection it was notified that the selection shall be
made by the Board following any one or more of the following
methods: (i) Written Test; (ii) Skill Test/Driving Test; (iii)
Aptitude Test; (iv) Interview; and (v) Physical Efficiency Test.
2. A large number of candidates applied and at the written
test only 328 were shortlisted for physical endurance test. The
said test was held on 20/21.05.2004 and the candidates who
remained in the fray were only 137.
3. The said 137 candidates were thereafter subjected to a
driving test conducted by the officers of the Institute of
Driving, Training and Research; a joint venture of Government
of NCT of Delhi and Maruti Udyog Ltd. The Manager, Driving
Training, DTC was appointed as an expert. The driving tests
were conducted on various dates and by November, 2004 the
Institute sent the names of those who had successfully cleared
the driving test. 50 candidates were thereafter empanelled as
Fire Operators and by the month of December, 2004 all joined.
4. The respondents of the three captioned writ petitions
filed original applications before the Central Administrative
Tribunal which were registered as OA No. 563/2005, OA No.
984/2005 and OA No. 1265/2005. Inter-alia, they questioned
the right of the Board to subject them to a driving test.
5. Vide judgment and order dated 16.05.2006, the Tribunal
allowed all the original applications holding that the selection
process did not envisage a driving test to be successfully
cleared by the prospective candidates.
6. The decision of the Tribunal was assailed before this
Court under W.P.(C) No. 13283-84/2006, W.P.(C) No. 13411-
12/2006 and W.P.(C) No. 15333-34/2006. The Division Bench
of this Court noted that the selection process clearly indicated
that the eligible candidates would be subjected to a driving
skill test. The decision of the Tribunal was over ruled, but the
matter was remanded to the Tribunal inasmuch as learned
counsel for the respondents stated before the Division Bench
that there were other issues which the respondents had raised
and the same had not been decided by the Tribunal.
Accordingly, the three applications filed by the respondents
were restored with a direction that the parties shall appear
before the Tribunal on 16.03.2009 and the remaining points
urged in the original applications would be decided.
7. At the remanded stage, vide impugned order dated
14.05.2009, all the three original applications have been
allowed. The selections have been quashed. De novo driving
test has been directed to be conducted.
8. At the remanded stage the reasons given by the Tribunal
to allow the original applications may be tracked to paragraph
4.1 to 4.3 which read as under:-
"4.1 On behalf of the applicants, the plea of
malafide behind the holding of the impugned driving
test on 1.11.2004 would be raised. Adverting to the
contentions in Para 4.5 of the OA, the learned counsel
for the applicants would reiterate the averment of the
driving test not having been conducted properly and
certain irregularities having been committed by
respondent no.3 in connivance with respondent no.2.
The learned counsel would question how the applicants
could be declared unfit in the driving test when they
had been declared fit both by the Licencing Authority as
well as the same Institute that conducted the driving
test on a later date. It would also be contended that the
applicants have been declared failed deliberately with a
connivance of Respondent No.2 to accommodate their
own candidates.
4.2 Our specific query to substantiate the plea of
malafide on the part of the respondent no.3 drew a
blank. It was also pointed out that in case of a factual
malafide the particular person as such has to be
impleaded which was not the case here. It is trite that
the plea of malafide in decision making process is easier
made than made out. As was held by the Apex Court in
M.V. Thimmaih vs UPSC & Ors, (2008) 1 SCC (L&S)
409, the plea of malafide in selections not to be acted
upon by Courts without substantiation.
On the other points raised regarding unsustainability
of the selection process, the relevant aspects have
already been considered by the Tribunal while passing
its initial order. No new averments have been adduced
before us by the respondents necessitating a fresh
reconsideration.
4.3 We find that even accepting the right of the
respondents to conduct the driving test, which was
meant to be only a qualifying test, certain arbitrariness
is found. The records perused by the Tribunal at the
initial stage had revealed that while no specific marks
had been awarded for this test, still some candidates
securing high marks in the written and physical
endurance tests had been declared as failed; whereas
some others securing less marks in these tests were
declared as passed. We find ourselves agreeing with the
observations that the approach adopted in the given
case raised a question mark at the objectivity of the
selection process. We also agree with the initial findings
of the Tribunal that the selection procedure followed by
the respondents by conducting and evaluating the
driving test in the way it has been done, has enabled a
large number of candidates to be selected even through
they secured less marks in the written test and the
physical test."
9. The Tribunal has held that there was something amiss in
the driving test. It has been held that the result appears to be
arbitrary. The Tribunal has been impressed with the fact that
no specific marks have been awarded for the driving test and
as a result candidates securing higher marks in the written and
physical endurance test have been declared unsuccessful.
10. The reasoning of the Tribunal is clearly wrong for the
reason a driving test has to be either cleared or one has to fail
at the driving test and at which test no specific marks can be
allotted. Indeed, as Fire Operators, the prospective candidates
were expected to drive fire tenders in cases of emergency.
Thus, the driving skill pertaining to heavy duty vehicles was
required. Indeed, in the advertisement it was so specified.
11. Now, a candidate may obtain very high marks at a
written test and an endurance test but may fail at the driving
test. If he so fails, from said fact alone, it cannot be inferred
that there is malice.
12. The Tribunal failed to note that the Chairman, DSSSB had
no role in the driving test which was outsourced by the Board,
to be conducted at the Institute of Driving, Training and
Research; a joint venture of the Government of NCT of Delhi
and Maruti Udyog Ltd. The Manager, Driving Training, DTC was
nominated as an expert at the test.
13. What more transparency could be brought into the
selection process by the Chairman of the Board? We can think
of none more.
14. But, we have more fundamental reasons to dismiss the
original applications filed by the respondents and allow the
three writ petitions.
15. As noted above in para 3, 50 persons were selected and
appointed as Fire Operators by December, 2004. None of them
has been impleaded as a respondent in the original
applications.
16. Sufficient would it be to state that having secured
appointment, a right accrued in favour of the said 50 persons,
which right could not be taken away behind their back. All of
them had to be impleaded as respondents. It be highlighted
that the said 50 persons have been working for the last 5
years as Fire Operators.
17. The writ petitions are allowed. Impugned order dated
14.05.2009 is set aside. OA No. 563/2005, OA No. 984/2005
and OA No. 1265/2005 are dismissed.
18. We refrain from imposing any costs.
PRADEEP NANDRAJOG, J
SIDDHARTH MRIDUL, J
OCTOBER 25, 2010
mk
