Delhi High Court
Delhi Subordinate Service ... vs Richa Gupta on 20 March, 2017
$~07
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1504/2015
Date of decision: 20th March, 2017
DELHI SUBORDINATE SERVICE SELECTION BOARD & ANR
..... Petitioner
Through Mr. Satyakam, Additional Standing
Counsel with Mr. Manish Jain, DS (CC-I),
DSSSB.
versus
RICHA GUPTA ....Respondent
Through Mr. Prag Chawla, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL)
Delhi Subordinate Service Selection Board (DSSSB) and the
Government of NCT of Delhi in this writ petition have impugned order
dated 21st July, 2014, passed by the Principal Bench of the Central
Administrative Tribunal (Tribunal, in short) in OA No.926/2013.
2. The impugned order allows the aforesaid OA filed by Richa Gupta,
the respondent before us, with a direction that the petitioner shall finalise the
selection process for the Post Code 163/07 (Advertisement No.07/2007) and
if Richa Gupta is selected on the basis of her position in the merit list, her
dossiers shall be sent to the Directorate of Education, Government of NCT
of Delhi, for necessary action.
3. DSSSB by Advertisement No.07/2007 published in the Employment
News 6-12 October, 2007 had invited applications for 39 vacant posts of
Librarian (Grade-B) in the Directorate of Education under Post Code
163/07. DSSSB had earlier published an Advertisement No. 2/07 for filling
up 147 vacant posts of Librarian (Grade B) in the Directorate of Education
vide Post Code No.17/07 and one OBC vacancy vide Post Code No.18/07.
4. The petitioner-DSSSB conducted a combined written examination in
respect of Advertisement No.2/07 for Post Codes 17/07, 18/07 and
Advertisement No.07/2007 for Post Code 163/07. It appears that in this
examination candidates/applicants, who had applied under Post Code 182/07
and 30/08 for the post of Librarian, had also participated.
5. The combined written examination was held on 18 th January, 2009
and the results were declared after about one year on 18th January, 2010.
6. The respondent being an applicant under the Post Code 17/07 and
163/07 (Librarian, Grade B) had secured 91 marks out of 200 marks in the
main examination. The petitioner missed her selection under Post Code
17/07 by a close margin.
7. The results for Post Code 163/07 were never declared.
8. This had prompted Richa Gupta to file OA No. 926/2013, which as
noticed above has been allowed by the impugned order dated 21 st July,
2014.
9. The stand and contention raised by the DSSSB before us is that the
requisitioning department i.e. Directorate of Education vide their letter dated
13th March, 2009 had requested them to keep the selection process for 39
vacancies of Librarian (Grade B) vide Post Code 163/07 in abeyance till the
appointment process is completed against Post Code 17/07. The contention
of the DSSSB was that the Tribunal could not have issued any direction to
finalize the selection process, as the requisitioning department i.e. the
Directorate of Education had itself asked the appointing authority to keep
the appointment process in abeyance.
10. After notice was issued in the present writ petition, the Directorate of
Education was asked to clarify the position. The petitioner has filed on
record letter dated 21st March, 2016, written by the Directorate of Education,
Government of NCT of Delhi. This letter, in fact, gives a different picture
altogether and sets out the correct and true facts. As the facts narrated in the
said letter dated 21st March, 2016 are crucial and important, we would like
to reproduce the said letter in entirety:-
"Please refer to your letter dated 26/02/2016 on the subject
cited above, the point-wise reply is as under:-
1. A requisition vide letter dated 25/11/2006 for 147 posts was
sent to the DSSSB, which was revised to 42 posts vide letter
dated 27/04/2007. However, 147 vacancies were already
advertised by DSSSB (post code 17/07) on 16/10/2007
(closing date was 29/10/2007)
2. On 21/05/2007 and 05/07/07, Directorate of Education,
GNCTD sent a requisition for 23 & 16 anticipated vacant
post of Librarian to DSSSB (Copies enclosed). These
vacancies (39) were advertised vide post code No.163/07 on
16/04/2007 (closing date was 02/05/2007).
3. The combined exam for post code No. 17/07 and 163/07
was conducted by DSSSB on 18/01/2009 along with other
posts.
4. A meeting was held on 04/02/2009 at the level of Secretary,
DSSSB wherein issue regarding exploring the possibilities
to accommodate maximum number of candidates of post
code No. 17/07 was discussed & decided that the requisition
for 147 posts which was modified to 42 posts and further to
87 posts after adjusting 45 unfilled vacancies from the
requisition sent to the DSSSB in the year 2004 to pre-empt
litigation. The same was conveyed vide letter dated
13.03/2009 (Copy enclosed). It was further requested to the
DSSSB that selection process for 39 vacancies advertised
vide post code 163/2007 may be kept in abeyance till the
appointment process for post code No.17/07 is completed.
5. Result of 87 posts was declared by DSSSB on dated
18/01/2010.
6. On 11/02/2010, the Directorate of Education sent a letter to
DSSSB to initiate the selection process & send the dossier
in respect of post code 163/07 for the said 39 vacancies.
7. Vide letter 24/05/2010 (copy enclosed) , DSSSB was
informed that "As regard requisition for 39 vacancies in post
code 163/07 which were earlier requested to be kept in
abeyance vide this office letter No. DE.4(9)(72)/E-
IV/2006/9118 dated 13.03/2009, now I am directed to say
that no fresh requisition is required to be sent at our end and
therefore the same kindly now be filled up as per our earlier
requisition sent to DSSSB vide letter No.DE 4(9)/72/E-
IV/06/4211 dated 11/2/2010".
8. Subsequently, a reminder dated 13.07/2010 was also sent to
DSSSB (copy enclosed). OIC/Economist, CC-I, DSSSB,
GNCT of Delhi vide letter dated 02/08/2010 (copy
enclosed) informed that DSSSB do not make/maintain any
panel for selection to the various categories of posts, it is
necessary to send the fresh requisition so that fresh
advertisement of the vacancies can be published to obtain
fresh application for the aforementioned vacancies.
9. Therefore, a requisition of 105 vacancies including 39
vacancies was sent to DSSSB vide letter dated 06/12/2010
(copy enclosed).
10.The dossier against requisition of 105 vacant post of
Librarian are expected to come from DSSSB shortly. As on
date 01/01/2016, there are 46 vacancies still left with
Directorate of Education, if the requisition of total 407
vacant post of Librarian pending with DSSSB are excluded
out of 453 total vacant posts of Librarian in Directorate of
Education. The break up of post of Librarian is as under:-
Total sanctioned post of Librarian -961
Total filled 508 (including re-employed)
Requisition sent to DSSSB
& still pending with DSSSB 407
Vacancies left with department 46
This issue with the prior approval of Competent Authority"
11. The aforesaid letter admits that a combined examination for the Post
Codes 17/07 and 163/07 was conducted by the DSSSB on 18 th January, 2009
along with other posts. On 4th February, 2009, a meeting was held at the
level of Secretary, DSSSB to explore the possibilities of accommodating
maximum number of candidates under Post Code 17/07, for the requisition
had been reduced to 42 posts as against the initial requisition of 147 posts.
On this account, it was initially decided that DSSSB should not process the
vacancies advertised vide Post Code 163/07 till appointment process for the
Post Code 17/07 was completed. Accordingly, results of 87 posts were
declared by DSSSB on 18th January, 2010 under Post Code 17/07.
Thereafter, the Directorate of Education had sent letter dated 11 th February,
2010 to the DSSSB to initiate selection process and send dossiers in respect
of eligible candidates for the Post Code 163/07. This was followed by
another letter dated 24th May, 2010, informing DSSSB that the 39 vacancies
under Post Code 163/07, which were earlier requested to be kept in
abeyance, may be filled up. Thereafter, vide letter dated 11th February,
2010, the Directorate of Education had asked the DSSSB to initiate (sic.
complete) the selection process. In fact, Directorate of Education had stated
that no fresh requisition was required as requisition had already been sent to
the DSSSB. The Directorate of Education thereafter had sent another
reminder dated 13th July, 2010 to the DSSSB.
12. The stand of the DSSSB stands reflected in their letter dated 2 nd
August, 2010. The DSSSB claimed that they do not make or maintain a
panel for selection of posts, and therefore, the Directorate of Education
should send a fresh requisition.
13. In these circumstances, the Directorate of Education vide their letter
dated 21st March, 2016 had sent requisition of 105 vacancies including 39
vacancies to the DSSSB vide letter dated 6th December, 2010.
14. The State is not under legal duty to fill up all or any of the vacancies,
including notified vacancies, even if there are adequate number of successful
candidates. To this extent, the respondent does not have any right to a post.
However, this does not mean the State has a licence to act in an arbitrary
manner and not fill up the notified vacancies. The State must act bonafidely
and for appropriate reasons (Shankarsan Dash versus Union of India,
(1991) 3 SCC 47). It is in this context, we have reproduced the letter dated
21st March, 2016 written by the Directorate of Education, Government of
NCT of Delhi, the requisitioning Department. The stand of the DSSSB,
according to us, is irrational and arbitrary. Selection process was held and
marks of the candidates were declared. Between holding of the written tests
and declaration of results, it was decided that the appointment process under
Post Code No. 163/07 would be kept in abeyance till recruitment is
completed against Post Code No. 17/07. Abeyance did not mean
cancellation. Clearly thereafter the Directorate of Education had sent
repeated letters from 11th February, 2010 calling upon the DSSSB to send
dossiers in respect of Post Code No. 163/07.
15. There have been other similar cases the DSSSB's stand that they do
not draw a panel has been adversely commented upon. Reference can be
made to judgment dated 7th March, 2013 in W.P. (C) No. 5236 titled Delhi
Subordinate Service Selection Board v. Lokesh Kumar wherein it has been
held:-
" 11. Before bringing the curtains down we wish to
bring on record that the budget of the Delhi Subordinate
Services Selection Board runs into crores of rupees every
year. It is the duty of the Selection Board to ensure that as
far as possible every vacancy notified to be filled up is filled
up if eligible candidates are available. It does not sub-serve
public interest if public post remains unfilled. We are
finding in very second litigation being fought against the
Selection Board that a panel is drawn up limited to the
number of vacancies notified to the Selection Board by the
Government of Delhi or autonomous bodies under the aegis
of the Government of Delhi. The Selection Board does not
scrutinize the certificates filed by the applicants before
permitting them to take the competitive examinations. The
result is that if 10 vacancies have to be filled up, a Select
Panel of 10 is drawn up. Thereafter, the said 10 candidates
are called for the certificate submitted by them to be
verified. If any deficiency is found or noted in a certificate
issued, the empanelled candidate is de-empanelled and the
Board then takes a stand that since it has not drawn up a
reserve list, it would not forward the name of the next
selected candidate who is also above the qualifying mark
limit prescribed. Not only does this breed litigation but even
results in public posts remaining unfilled. As in the instant
case, the Delhi Jal Board urgently requires an Assistant
Chemist and we have respondent No.1 as a selected
candidate but yet the post is not being filled up because the
Selection Board is refusing to send the dossier of respondent
No.1 to the Delhi Jal Board. We make it clear that the
decision to fill up or not fill up the vacancy cannot be the
decision of the Selection Board, which is merely a recruiting
agency. The employer is not the Selection Board. The office
or the department of the Government which sends the
requisition to the Selection Board would alone have the right
to determine whether or not to fill up the vacancy. In future
the Selection Board would forward the names of all
candidates who have secured marks above the eligible cut-
off mark to the office or the department which has sent the
requisition to the Selection Board to conduct the
examination. It would then be for the said department to
decide whether or not it would like to have candidates in the
wait list. This would ensure that it is the employer who
would decide whether to fill up the vacancy from the wait
listed candidate if the candidates in the select list are found
either ineligible or do not respond to the letters offering
appointment.
12. We concur with the view taken by the Central
Administrative Tribunal that the Delhi Subordinate Services
Selection Board shall forward the name of respondent No.1
to the Delhi Jal Board for being appointed as an Assistant
Chemist. "
16. This being the position, we do not see any reason or ground to
interfere with the impugned order. The Tribunal in the impugned order has
asked the DSSSB to declare the result and thereafter, process the case of the
petitioner as per the merit list. This will mean that in case the respondent-
Richa Gupta had secured meritorious position and is eligible, she would be
entitled to and her case will be processed for appointment in accordance
with law. The said process would be completed within three months from
the date a copy of this order is received.
SANJIV KHANNA, J.
MARCH 20, 2017 CHANDER SHEKHAR, J.
NA
