Delhi High Court
Delhi Subordinate Services ... vs Hariom Ahlawat & Ors. on 7 March, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : March 07, 2013
+ W.P.(C) 915/2013 & CM No.1768/2013
DELHI SUBORDINATE SERVICES
SELECTION BOARD .... Petitioner
Represented by: Ms.Zubeda Begum, Advocate
with Ms.Sana Ansari, Advocate.
versus
HARIOM AHLAWAT & ORS. ..... Respondents
Represented by: Mr.Ajesh Luthra, Advocate for
R-1.
Ms.Anjana Gosain, Advocate for
R-2 to R-4.
AND
W.P.(C) 5222/2012 & CM No.10661/2012
DELHI SUBORDINATE SERVICES
SELECTION BOARD ..... Petitioner
Represented by: Ms.Zubeda Begum, Advocate
with Ms.Sana Ansari, Advocate.
versus
PUNISH & ORS. ..... Respondents
Represented by: Mr.Ajesh Luthra, Advocate for
R-1.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. Receiving at the first instance a requisition to fill up 26 posts
of Assistant Superintendent in the Central Jail Tihar, the Delhi
Subordinate Services Selection Board (DSSSB) commenced selection
process by issuing the necessary advertisement inviting applications and
informing that of the 26 posts to be filled up the distribution would be: (i)
UR-13; (ii) SC-04; (iii) ST-02; and (iv) OBC-07. The advertisement was
subsequently modified when the Director General (Prison) intimated that
not 26 but 46 vacancies had to be filled up as follows:- (i) UR-25; (ii) SC-
06; (iii) ST-03; and (iv) OBC-12. As per the advertisement, the age
eligibility was between 18 years to 27 years; relaxable as per the
Government of India norms (which we are informed is 5 years) for SC,
ST and OBC candidates. The selection process required eligible
applicants to first take an objective paper: Part I, the same being to
shortlist the candidates who could then take the analytical/descriptive
paper: Part II. A lower cutoff in the Part I paper was prescribed for SC,
ST and OBC candidate vis-à-vis the candidates in the unreserved
category.
2. Successful candidates after evaluating Part I paper were
shortlisted to take the Part II paper; and needless to state the ST, SC and
OBC candidates were granted the benefit of relaxation in the upper age
limit; for those who claimed benefit thereof. Similarly, while drawing up
the list of successful candidates at Part I examination, those who did not
achieve the cutoff mark prescribed in the unreserved category, but were
competing as SC, ST and OBC candidates were given benefit of
relaxation in the prescribed cutoff point.
3. Completing the selection process after evaluating the answer
sheets of the Part II examination, DSSSB notified the select panel
consisting of 25 candidates in the unreserved category, 11 in the OBC
category, 6 in the SC category and 3 in the ST category; and we highlight
that as against 12 vacancies notified for OBC candidates the select list
drawn up was of only 11 candidates and 1 vacancy was kept pending due
to some dispute; nature whereof need not be noted by us as the same does
not concern the instant dispute. The 3 lists are as under:-
UR CATEGORY
SL. ROLL NO NAME OF THE CAT D.O.B. MARK
No. CANDIDATE MAIN
EXAM
RANA
2. 1212653 PARVEEN KUMAR UR/SC 17.06.82 116
3. 1213661* SUNIL UR 02.12.82 116
4. 1212803 JITENDRA KUMAR UR 15.03.83 115
PATEL
5. 1213521 CHETNA GUPTA UR 09.09.81 115
6. 1214561 KUMAR RAJESH UR 28.02.82 114
7. 1212107 NAVEEN KUMAR UR 26.06.85 114
8. 1212841 KAVINDER UR 17.05.84 114
9. 1213029 RAJNISH KUMAR UR 10.08.83 114
10. 1214589 DEEPAK SAROHA UR 26.09.81 113
11. 1213361 VIKAS UR 24.04.83 113
12. 1210414 HARI OM UR 19.01.82 113
13. 1212337 SANDEEP UR/OBC 17.09.81 113
14. 1213599 ROHIT MANN UR/OBC 08.09.84 113
15. 1211614 SURJEET KUMAR UR 08.08.82 113
16. 1211934 DEEPAK SHARMA UR 03.02.87 113
17. 1213538 ANUJ KUMAR UR/OBC 02.06.82 113
18. 1212411 AKHILESH RATHORE UR 01.01.82 113
19. 1213099 PRADEEP UR 05.08.82 112
20. 1213362 HARI KISHAN UR/EX. 01.09.71 112
SHARMA
21. 1210325 MANISH MALIK UR 27.09.85 111
22. 1212556 PRASHANT DAGAR UR 21.05.87 111
23. 1214507 YOGESH UR 06.03.83 111
24. 1212205 HARIOM AHLAWAT UR 05.07.87 111
25. 1213645* SOMKANT KHARE UR 05.07.84 111
*Provisional subject to verification of signatures which has
slight variations. Copies of OMR Answer sheets containing
declaration written by the candidates in their own
handwriting are placed in their respective dossiers.
OBC CATEGORY:
SL. ROLL NO NAME OF THE CAT D.O.B. MAR
No. CANDIDATE K
MAIN
EXA
M
1. 01212583 ANIL KUMAR OBC 28.09.80 116
2. 01210216 NEERAJ KUMAR OBC 25.03.80 115
3. 01213571 PARAMVEER OBC 07.03.81 113
4. 01210226 NAVEEN DAHIYA OBC 25.12.79 112
5. 01214022 MUKESH OBC/DE 01.05.75 112
6. 01214419 PRADEEP KUMAR OBC 29.11.79 111
MANN
7. 01214064* SURENDER KUMAR OBC 01.04.83 111
DAGAR
8. 01212723 LAXMI GOLA OBC 23.03.80 110
9. 01211935 YOGENDER SINGH OBC 07.06.83 110
(YOGINDER SINGH)
10. 01212533 SANJAY KUMAR OBC 01.12.81 110
11. 01214051 PUNISH OBC 10.11.82 109
*Provisional subject to verification of signatures which has
slight variations. Copy of OMR Answer sheet containing
declaration written by the candidates in his own handwriting
is placed in dossier of the candidate.
SC CATEGORY:
SL. ROLL NAME OF THE CAT D.O.B. MARK
No. NO CANDIDATE MAIN
EXAM
1. 01213461 DHARMENDRA SC 08.05.79 113
SINGH MAURYA
(TOMAR)
2. 01214010 DEEPAK KUMAR SC 19.04.79 112
3. 01210693 UDAI RAJ SINGH SC 20.11.82 111
4. 01214075 RAHUL KARDAM SC 04.09.80 111
5. 01214627 GHANSHYAM DAS SC 22.11.80 108
6. 01210063 JAGDISH SC 31.07.85 107
ST CATEGORY:
SL. ROLL NAME OF THE CA D.O.B. MARK
No. NO CANDIDATE T MAIN
EXAM
1. 01212959 DHARAM SINGH ST 15.10.85 110
MEENA
2. 01213350 CHET RAM MEENA ST 10.07.83 107
3. 01212745 AKASH KUMAR ST 02.02.87 107
MEENA
4. Taking a stand that while drawing up the select panel,
inadvertently it went unnoticed that candidates who had obtained same
number of marks required them to be placed in the order of merit with
reference to the date of birth; the elder being ranked above the younger,
DSSSB claimed that 6 candidates in the unreserved category had
obtained 111 marks and that the list pertaining to the unreserved
candidates required to be redrawn as under:-
SL. ROLL NAME OF THE CA D.O.B. MARK
No. NO CANDIDATE T MAIN
EXAM
1. 01214507 Yogesh UR 06.03.83 UR-21
2. 01213645 Somkant Khare UR 05.07.84 UR-22
3. 01210325 Manish Malik UR 27.09.85 UR-23
4. 01211209 Manjeet UR 04.05.86 UR-24
5. 01212556 Prasant Dagar UR 21.05.87 UR-25
6. 01212205 Hariom Ahlawat UR 05.07.87 No
vacancy
5. Similarly, noting that 7 OBC candidates had obtained the
same i.e. 109 marks and that while drawing up the list it got omitted to be
noted that said 7 candidates had to be placed in the order of merit with
reference to their date of birth, the list was revised and the 7 OBC
candidates were ranked as under:-
SL. ROLL NAME OF THE CAT D.O.B.
No. NO CANDIDATE
1. 01210716 Ram Babu OBC 05.08.77
2. 01214580 Rajpal Singh OBC 01.04.82
3. 01211779 Subodh Gahlot OBC 09.05.82
4. 01214547 Manoj Rana OBC 01.08.82
5. 01214051 Punish OBC 10.11.82
6. 01210722 Sarita Yadav OBC 08.12.82
7. 01210354 Pradeep OBC 19.07.83
In this manner, Punish got relegated from serial No.11 to serial No.15 in
the OBC category.
6. Due to aforesaid redrawing of the lists, Hariom Ahlawat, the
first respondent in W.P.(C) No.915/2013 who was at serial No.24 in the
category of unreserved candidates, having obtained 111 marks got
pushed out from the merit list as he could not find a place in the merit list
of 25 candidates on account of the fact that he was born on July 05, 1987
and was the youngest amongst the 6 candidates in the unreserved
category who had obtained 111 marks. Similarly, Punish who had
obtained 109 marks and found himself at serial No.11 of the original list
drawn up got relegated to serial No.15 in the list of OBC candidates and
hence out of the select list.
7. But before the lists were redrawn, since DSSSB intimated to
the Director General (Prisons) the names of the selected candidates as
originally drawn up, the Director General (Prisons) started issuing letters
offering appointment to the candidates and the result was that both
Hariom Ahlawat and Punish accepted letter offering appointment and
joined. By the time on June 26, 2009, DSSSB requested Director
General (Prisons) to keep in abeyance the select list forwarded,
appointments had already been made. The lists were later up redrawn on
December 21, 2009.
8. The result was that Hariom Ahlawat and Punish faced threat
of losing their job and both approached the Central Administrative
Tribunal questioning the lists being redrawn.
9. Deciding OA No.3429/2010 filed by Hariom Ahlawat the
Tribunal found, and we quote from the order of the Tribunal:-
"In their counter reply dated 22.12.2010, the DSSSB has
submitted the revised merit list in respect of candidates with
marks 111 as per their age. The list shows a total 11
candidates; the name of the applicant figuring at serial
No.10. In this list, four candidates have actually been
shown as selected under the reserved category (Sl.1, 2, 3
and 5) Sl. No.8, Manjeet whose name had been
recommended as a substitute for Hariom Ahlawat had the
applicant not continued in service. As per the remarks
column, he had 'left'. Taking this into account, the rank of
the applicant which initially was sixth on leaving of Manjeet
it came down to fifth. Further among the candidates
selected, two (Shri Anuj Kumar and Shri Sandeep) had not
joined/had resigned within six months respectively. As per
Shri Ajesh Luthra, the learned counsel for the applicant, out
of the originally notified 25 vacancies under the UR
category, still two more vacancies remained unfilled,
against which the appointment of the applicant could be
sustained."
10. The factual content of the aforesaid paragraph were not
refuted before us.
11. Allowing the claim of Hariom Ahlawat, the view taken by
the Tribunal is that all notified vacancies had required to be filled up and
thus, subject to a candidate obtaining the minimum eligible cutoff marks,
right to appointment accrued to such candidates who would find a place in
the category of appointed candidates if candidates higher up in the merit
did not join or whose papers were found to be wanting.
12. Allowing O.A.No.3433/2010 filed by Punish vide order
dated November 16, 2011, the reasoning of the Tribunal is similar to its
earlier decision where the Tribunal has noted that discounting those OBC
candidates who had either not joined or whose papers were found to be
not in order, Punish would find a place amongst 11 candidates.
13. Challenge to the two decisions is by DSSSB; and we
highlight not the Director General (Prisons), who seems to be happy for
the reason the population of prisoners, both undertrials as well as convicts
in the Central Jail Tihar is far in excess of the capacity of the prison and
thus he needing all posts to be filled up.
14. The grievance to the impugned decisions by DSSSB, is that it
had drawn up a select panel of only 25 candidates in the unreserved
category and 11 in the OBC category and thus the effect of the impugned
decisions is the elongation of the select list.
15. We have repeatedly passed orders that it is the Service
Department which has to take the decision whether to maintain a wait list
or not. The DSSSB is merely a recruiting agency and is not the competent
authority to decide whether or not a wait list has to be maintained. We
have been noticing in the past that since a large number of candidates
apply for a few posts, due to shortage of manpower, DSSSB does not
scrutinize the applications with reference to the documents annexed by the
candidates with respect to the eligibility conditions being fulfilled. After
the selection process is over, DSSSB scrutinizes the certificates filed by
the candidates with their application forms. As in the instant case, where
candidature of 3 OBC candidates was rejected on account of not
producing the relevant OBC certificate, we found in other cases, similar
things happening pertaining to not only OBC candidates but even ST, SC
as well as General category candidates, for the latter, issues pertaining to
acquiring eligibility as of the cutoff date arose, rendering them ineligible.
16. Now, as in the instant case, if only 11 OBC candidates are
shortlisted in the merit list and thereafter it is found that 3 are ineligible,
we see no justification for the Board to only forward names of 8
candidates to the Service Department. Ineligible candidates being
removed, subject to eligibility and qualifying, 3 more candidates have to
be included in the select panel and names forwarded to the Service
Department. Besides, we find that considerable time, sometimes up to as
many as 2 years lapses, between the dates when applications are invited
from eligible candidates and results declared. We have been noticing that
in large number of such cases many candidates obtain gainful employment
elsewhere and notwithstanding finding a place in the select list do not
even respond to the letters offering appointment. Since select list is
restricted to the number of vacancies, upon said candidates not responding
to the letters offering appointment, the posts remain unfilled.
17. Crores of rupees are spent on the establishment of the
DSSSB. Crores of rupees are spent by DSSSB while issuing public
advertisements inviting applications. Simple logic demands that
maximum benefit of revenue spent should be attempted to be achieved.
18. It hardly needs any emphasis to state that public interest is
served when public posts are filled up. Public interest suffers when public
posts remain vacant. The law of the land is that nobody has a vested right
to be appointed even when a vacancy is notified and the person has
qualified, but subject to the exception that there should be a good
justification to not fill up the vacancy. Meaning thereby, filling up of a
notified vacancy is the norm and not to fill up the same is the exception.
19. Since admittedly, both Hariom Ahlawat and Punish had
qualified at the main exam and some persons above them in the redrawn
merit list have either not joined or were found ineligible, and as a result
vacancies are available to be filled up by said two persons; noting further
that both of them were issued letters offering appointment as per the first
list drawn up, we find no infirmity in the view taken by the Tribunal on
the given facts of the case. We note that Hariom Ahlawat had been
offered appointment in CISF which he did not accept because he found
the instant employment. Equities are in his favour. Similarly, Punish had
been offered a job by HDFC Bank which he did not accept having
obtained the instant employment.
20. Before closing we would like to observe, with reference to
the facts of the instant case, that DSSSB is not following a logical step
wise process to draw up the select list.
21. Since as per law, if those who seek benefit of reservation,
obtain marks high up in the merit list and would find a place while
competing with unreserved/general category candidate have to be listed in
the unreserved category, while drawing up the lists DSSSB has to take
care of the situation where a candidate, pertaining to eligibility, competes
on the strength of being a SC/ST or OBC candidate. For example, if the
upper age qualification requirement is 27 years, relaxable by 5 years for
SC/ST/OBC candidate, any person who takes benefit of relaxation has to
compete in his/her category. Similarly, as in the instant case, pertaining to
Part I examination, qualifying marks for unreserved category were more
than those in the reserved category. Those who earned the right to
participate at the Part II selection process after availing the benefit of
being in the reserved category; with reference to the qualifying marks
obtained at the Part I examination have likewise to retain their character as
reserved category candidates and cannot merge with the unreserved
category candidates irrespective of the marks they obtain at the Part II
examination. To put it in simple words. A reserved category candidate
must join the race and complete the same without availing any benefit of
being in the reserved category if the name of the candidate has to be
placed in the merit list pertaining to the unreserved category.
22. Noting that in the instant case, as a result of the revision
effected in the select list when error committed of not placing candidates
with equal marks in the descending order with reference to the date of
birth was noted, the two respondents before us would not find themselves
within the first 25 and 11 candidates respectively in the list of unreserved
and OBC candidates, but having obtained marks above the cutoff limit
and enough number of candidates above them either being later on found
to be ineligible or did not respond to the letter offering appointment or
joining and resigning within a month or two resulting in the notified
vacancies in the two categories not being filled up, we do not disturb the
final directions issued in the two orders passed by the Tribunal.
23. The writ petitions are accordingly dismissed but without any
orders as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
MARCH 07, 2013
dk/mm
