Jitender Nath Tiwari vs Delhi Subordinate Services ...
2011 Latest Caselaw 2658 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 18th May, 2011

+                           W.P.(C) 2635/2010

         JITENDER NATH TIWARI                     ..... Petitioner
                     Through: Mr. Neeraj Kumar Singh, Advocate.

                                      versus

    DELHI SUBORDINATE SERVICES SELECTION
    BOARD AND ORS                          ..... Respondents
                 Through: Ms. Navratan Chaudhary, Advocate
                           for R-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                No
         be allowed to see the judgment?

2.       To be referred to the reporter or not?               No

3.       Whether the judgment should be reported              No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, in response to an advertisement published by the

respondent no.1 Delhi Subordinate Services Selection Board (DSSSB) for

the post of Assistant Superintendant in the Office of the Director General

W.P.(C) 2635/2010

(Prison) in respondent no.2 Department of Prison, Govt. of NCT of Delhi

had applied in the Unreserved Category and claims to have secured 110

marks in the Selection Test held therefor. He contends that candidates till

111 marks were selected. The present petition has been filed, impugning

the selection process, for initiating inquiry into the alleged

irregularities/malpractices in the examination, for striking down the

examination, for verification of the signatures of the selected candidates.

2. Though I am of the opinion that the matter is in the domain of the

Central Administrative Tribunal (CAT) under Section 14 (1)(a) of the

Administrative Tribunals Act, 1985 being concerned with recruitment but

at the insistence of the counsel for the petitioner the matter has also been

considered on merits.

3. The counsel for the respondents also confirms that the matter ought

to be considered by CAT.

4. The petitioner claims the reliefs aforesaid on the following grounds:-

a) That in the list of selected candidates, it was provided that the

same was subject to verification of signatures of some of the W.P.(C) 2635/2010

selected candidates. The petitioner avers that notwithstanding

queries made through the medium of Right to Information

Act, no satisfactory or positive answer has been given that the

signatures were so verified. It is contended in para 17 of the

petition that "the respondents might have manipulated the

things in the impugned examination and might have

fabricated whole of the impugned examination process for

their ulterior motives." The counsel for the petitioner has also

urged that without verification of signatures it is well-nigh

possible that the person who appeared in the examination is

different from the person who has been selected;

b) It is contended that in response to the RTI queries, it has been

informed that five of the persons so selected have not joined.

It is contended that the petitioner having the next highest

marks of 110 ought to have been selected against the

vacancies of those candidates who have not joined;

c) It is lastly contended that a waiting list ought to have been

W.P.(C) 2635/2010

prepared for the vacancies as aforesaid accruing.

5. At the outset, it may be stated that merely because the petitioner had

appeared in the examination or has the next highest marks to the selected

candidates would not entitle the petitioner to a right of appointment. The

law in this regard is well established. A reference may be made to State of

UP v. Rajkumar Sharma (2006) 3 SCC 330 and Rakhi Ray v. High Court

of Delhi (2010) 2 SCC 637.

6. The counsel for the petitioner has contended that this Court should

conduct and direct an inquiry into the signatures. This Court cannot on

such apprehensions expressed and of which there is no basis whatsoever

entertain this petition and commence an inquiry. The respondent no.1

DSSSB in a counter affidavit filed (even though no formal notice of the

petition has been issued as yet) has stated that the respondent no.1 DSSSB

does not call the candidates for verification of documents and selection is

processed and results are declared as per information available in the

application forms and exam related documents and as such when some

variation was noticed in signatures of some of the candidates, the W.P.(C) 2635/2010

respondent no.1 DSSSB indicated so against the name of such candidates

in the result and requested the respondent no.2 Director General (Prison) to

verify the authenticity of the signatures.

7. The petitioner desires this Court to commence a roving and fishing

enquiry. The same is not permissible. The Full Bench of this Court in

Prakash Vir Shastri v. UOI AIR 1974 Delhi 1 refused an application

seeking production of documents to find out if there had been any violation

of Article 14 and held that the petitioner should be decided on the material

on record and under Article 226 of the Constitution, the Court should not

embark upon a roving enquiry. The Division Bench of this Court recently

also in A.G.R. Investment Ltd. v. Additional Commissioner of Income

Tax 176 (2011) DLT 703 held that to make a roving enquiry does not

come within the ambit and sweep of exercise of power under Article 226.

The Apex Court also in A. Hamsaveni v. State of T.N. (1994) 6 SCC 51

held that the petition can succeed only if the petitioners make out a case

but not to give a chance to establish a claim. Similarly, in N.K. Singh v.

UOI (1994) 6 SCC 98 it was held that no roving enquiry is called for or

W.P.(C) 2635/2010

justified within the scope of judicial review with reference to the private

rights of an individual. Yet again in Sadananda Halo v. Momtaz Ali

Sheikh (2008) 4 SCC 619 the Apex Court held that it is not for the High

Court to, at the instance of unsuccessful candidates, place itself into a

position of fact finding commission and to commence a roving enquiry.

Without the petitioner specifically pleading with particulars any

malpractice, an enquiry as sought cannot be commenced. The respondent

no.2 as the recruiting agency, if satisfied that the candidates who had

cleared the tests are the candidates selected, cannot be compelled to

compare the signatures.

8. As far as the other two grounds are concerned, the counsel for the

respondents has handed over in the Court a copy of the communication

dated 21st May, 2008 of the respondent no.1 DSSSB containing the policy

decision against preparation of any waiting list and containing the decision

to hold the examination afresh. It is also informed that the vacancies

alleged are in the Reserved Categories and not in the Unreserved

Categories and all the candidates selected in the Unreserved Category have

W.P.(C) 2635/2010

joined. It is further disclosed that for the vacancies in the same post a fresh

examination has already been scheduled.

9. The counsel for the petitioner has not been able to show any

requirement for preparation of such waiting list.

There is no merit in the petition the same is dismissed.

RAJIV SAHAI ENDLAW (JUDGE) MAY 18, 2011 pp..

W.P.(C) 2635/2010