Shikha Arora vs Dsssb And Anr.
2011 Latest Caselaw 294 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

               WRIT PETITION (CIVIL) NO.8449 of 2008

                                                Reserved on : 06-12-2010
                                      Date of pronouncement: 19-01-2011


       SHIKHA ARORA                                ..... Petitioner
                           Through:    Mr. R.K. Saini, Adv. with Mr.Sitab
                                       Ali Chaudhary, Adv.

                      versus


       DSSSB AND ANR                             ..... Respondent
                           Through:    Mohd. Sajid & Mohd. Suhail, Advs.
                                       for Respondents 1-2

CORAM:
  HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


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


SUDERSHAN KUMAR MISRA, J.

1. The petitioner is aggrieved of the non-consideration of her

case for recruitment to the post of Assistant Teacher (Primary) in

Directorate of Education, Govt. of NCT of Delhi, pursuant to an

advertisement stated to have been issued by the respondent on 27 th

July, 2006.

2. By that advertisement, the Delhi Subordinate Services

Selection Board, had invited applications for appointment to the post

of Assistant Teacher (Primary) in the Directorate of Education, Govt. of

NCT of Delhi. It was stated that there are 1254 vacancies, out of

which 563 were under the reserved category. The petitioner is

admittedly a general category candidate. It is the petitioner's case

that she fulfilled all the essential criteria for the appointment. The

selection consisted of a two part examination. The first part, or Part I

was of an, "objective", nature, while Part II was, "descriptive". Those

candidates who qualified in the objective type examination, i.e. the

Part I examination, were permitted to participate in the Part II

examination.

3. The petitioner participated in both Parts I and II

examinations. Both the examinations consisted of 200 marks each.

The Part I examination was held on 25th March, 2007 whereas the Part

II examination was held on 6th May, 2007. The petitioner obtained

89.50 marks out of 200 in the Part I examination and 75 marks out of

200 in the part II examination. Consequently, out of 400 marks in all,

she obtained 164.50 marks. The overall percentage of the marks

obtained by the petitioner in the two examinations, taken together,

comes to 41%.

4. Admittedly, the petitioner's rank is 411 in the

general/unreserved category. As per the advertisement, the

unreserved vacancies were 563. The petitioner contends that, under

these circumstances, she ought to have been offered an appointment

because nothing more was required to be done in the matter.

5. It is the case of the respondents that in terms of a policy

dated 31st March, 2007 of the Subordinate Services Selection Board

i.e. respondent No. 1, the candidates are also required to obtain

certain minimum marks both in the Part I examination, and again in

the overall percentage of marks in both Part I and Part II

examinations. According to the respondent, the minimum marks fixed

for the Part I examination for the petitioner was 40%. In addition, a

minimum overall percentage of 45% was also required after adding

the marks of Part I and Part II. It is stated that although the

petitioner was above the cut off for the Part I examination, however,

she did not make the cut off of 45% prescribed for the overall

aggregate.

6. It is the case of the petitioner that this provision, fixing cut

off marks, was not mentioned in the advertisement inviting

applications for recruitment. More importantly, it is also contended

that in any case, the aforesaid criteria for cut off marks was admittedly

set down only on 30th March, 2007 by respondent No. 1, i.e. after the

Part I examination had already been held earlier on 25 th March, 2007.

In short, the case of the petitioner is that once the recruitment process

has started and the examination itself has been conducted, it is not

open to the respondents to thereafter prescribe any additional criteria

with regard to the recruitment.

7. In this context, counsel for the petitioner relies on a

decision of the Supreme Court in Hemani Malhotra Vs. High Court

of Delhi, (2008) 7 Supreme Court Cases 11 (paras 14 to 16). There

also, at the beginning of the selection process, no minimum cut off

marks for viva voce were prescribed. They were prescribed after the

entire selection process was completed. In that case, the Supreme

Court was of the view that this would amount to changing the rules of

the game after the game has been played. In an earlier decision of

the Supreme Court in K.Manjusree Vs. State of A.P. (2008) 3 SCC

512, also it was clarified that although the prescription of minimum

marks is not illegal, and it is open to the authorities to prescribe Rules

laying down minimum marks wherever it considers necessary to do so;

however, if the selection committee wants to prescribe minimum

marks, "it should do so before the commencement of the selection

process". Significantly, it was stated in para 15 of that judgment that

where no minimum marks are prescribed before the commencement of

selection process, the authority concerned cannot, "either during the

selection process or after the selection process, add an additional

requirement/qualification that the candidate should also secure

minimum marks............".

8. Similarly, a Division Bench of this Court in LPA No.

65/2008, titled Surender Singh & Anr. Vs. DSSSB & Ors., decided

on 3rd November, 2008, held that fixing of the cut off marks after

completion of the written examination would be impermissible as held

by the Supreme Court in Hemani Malhotra (supra). In that case, a

controversy arose with regard to an examination being conducted by

the Delhi Subordinate Services Selection Board sometime in May,

2006, for filling up vacancies for the post of Teacher (primary) in the

schools run by Municipal Corporation of Delhi. There, the general

instructions admittedly granted the Board full discretion to prescribe

qualifying marks in the examination. However, before the examination

was conducted, the respondents failed to actually prescribe the

minimum qualifying marks. It was in these circumstances that the

Court held that even though the power to fix the marks was there,

that power must be exercised before the commencement of the

process.

9. Counsel for the respondent also relies on a decision of this

Court in Ghanshyam Das vs. DSSSB & Ors. in W.P.(C) No. 15964-

66/2006 decided on 29.11.2007. This authority, and in particular,

paragraph 30-31 only reiterate the law laid down in Hemani

Malhotra's case (supra) regarding the powers of the

Board/authorities to prescribe minimum qualifying marks. It is not

even the case of counsel for the petitioner that the Board does not

have the power to prescribe minimum qualifying marks. The only

aspect urged is that prescribing minimum qualifying/cut off marks

once the process has already commenced and the examination has

already been taken, amounts to changing the rules of the game, after

the game was played. That is not to say that it was not open to the

Board to prescribe minimum cut off marks for any other forthcoming

examination to be held in future, but only that it could not prescribe

such marks after the process had begun. This authority therefore does

not help the respondent.

10. Counsel for the respondent then relied on a decision of this

Court in W.P.(C) No. 6478/2008, titled Shweta Sharma vs. Govt. of

NCT of Delhi & Ors., on 5.9.2008 where, by a short order, the writ

petition filed by a party seeking a direction to the DSSSB to "include

her name in the list of successful candidates of Part I examination for

making her eligible for evaluation of her question-cum-answer booklet

of Part-II examination for the post of TGT(Hindi) held on 11.5.2008",

was dismissed in limine, noting that since the petitioner's name did not

figure in the list of candidates shortlisted in terms of the policy,

therefore, directions, as prayed for, cannot be issued. I am afraid that

I am not persuaded to follow this decision since the matter was

dismissed in limine by a short order without the necessary discussion

and the issues which are being raised in this petition do not appear to

have been either raised or considered by the Court in that matter.

11. Admittedly, out of 563 unreserved vacancies that were

available, and for which the examination in question was held, only

around 400 persons were appointed. The petitioner was ranked 411,

but could not be appointed, even though the vacancy existed, because

she did not make the so called cut off marks with regard to the overall

aggregate that came to be prescribed by the respondent after the

selection process had commenced.

12. Under the circumstances, and for all the aforesaid reasons,

the interim orders passed on 28.11.2008 are made absolute. The

respondents are now directed to consider the petitioner for

appointment against the post of Assistant Teacher (Primary) in the

Directorate of Education, Govt. of NCT of Delhi, pursuant to the

advertisement dated 27.07.2006, without any weightage being given

to the aforesaid cut off marks, subject to her completing all other

formalities like medical examination etc., within one month from

today.

13. For the removal of any doubts, it is clarified that the

appointment of the petitioner shall be with effect from the same date,

as that of the other candidates, who were selected, although she shall

not be entitled to any back wages. She shall, however, be entitled to

benefits of continuity of service and notional seniority from the date

when the other candidates were appointed in terms of the said

advertisement.

14. As regards the apprehension of counsel for the respondent

that there may be some other candidates who had also secured the

same or more marks than the petitioner, but were not considered

because of the impugned cut off marks; it is made clear that it is only

the petitioner who chose to approach this Court, and, as explained in,

Chairman, U.P. Jal Nigam and Anr. Vs. Jaswant Singh and Anr.

2006 (11) SCC 464, it is possible to restrict the relief to be granted to

those persons who approach the Court. Consequently, and looking to

the fact that nearly four years have passed since the impugned

examination was held, the respondents are under no obligation to

consider anyone else who has failed to approach this Court in a timely

fashion; also for the reason enunciated in the latin maxim, vigilantibus

et non dormientibus jura subveniunt - the vigilant, and not the sleepy,

are assisted by the laws; And, interest reipublicae ut sit finis litium - A

party who is insensible to his remedies or who does not assert his own

claims with promptitude has no right to seek the aid of the State.

CM APPL. No. 16262/2008

15. In view of the orders passed in the main petition, this

application is rendered infructuous and the same is disposed of as

such.

SUDERSHAN KUMAR MISRA, J.

January 19, 2011 rd/sl