Central Administrative Tribunal - Delhi
Tarun Khairwal vs Delhi Subordinate Services Selection ... on 13 December, 2024
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Item No. 53/ C- IV O.A. No.3723/2017
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No.3723/2017
This the 13th day of December, 2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Tarun Khairwal, Aged about 27 years,
S/o Sh. K. S. Khairwal,
R/o A-357, Ambedkar Nagar, Sector-5, New Delhi-
110062, Post: TGT (Computer Science), Group-B
...Applicant
( By Advocates : Ms.Tanya Rose with Mr. Nikhil Panwar
for Mr. Anuj Aggarwal )
Versus
1. Delhi Subordinate Services Selection Board
(DSSSB),
Through its Chairman,
FC-18, Institutional Area,
Karkardooma, Delhi - 110092
2. Government of NCT of Delhi
Through its Chief Secretary
Secretariat,
I.P. Estate, New Delhi - 110002
3. Director of Education,
Directorate of Education,
Government of NCT of Delhi
Old Secretariat Building Civil Lines,
Delhi-110054
...Respondents
( By Advocates : Mr. Sameer Sharma
Mr. Anuj Kumar Sharma)
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Item No. 53/ C- IV O.A. No.3723/2017
ORDER (ORAL)
By Hon'ble Mr. Manish Garg, Member (J) In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following reliefs:-
"(i) direct the respondents to fill all the 303 vacancies of Schedule Caste category which were advertised by the Delhi Subordinate Services Selection Board (DSSSB) for the post of TGT (Computer Science) (Post Code 192/14).
(ii) direct the respondents to display/upload the result/marks statement of all the candidates who had appeared hi the written examination conducted by the Delhi Subordinate Services Selection Board (DSSSB) for the post of TGT (Computer Science) (Post Code 192/14) and the said result/mark statement should be accessible to all the candidates;
(iii) direct the respondents to convert the unfilled Schedule Tribes seats/vacancies of the post of TGT (Computer Science) (Post Code 192/14) to Schedule Caste seats;
(iv) direct the respondents to provisionally select/nominate the applicant for appointment to the post of TGT (Computer Science) (Post Code 192/14) and grant him all the consequential benefits (monetary as well as non monetary) including the seniority, back salary, etc.;
(v) issue any appropriate order or direction as this Hon'ble Tribunal may deem fit and proper in the interest of justice and in the favour of the applicant;
and
(vi) allow the present application with cost in favour of the applicant."
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Item No. 53/ C- IV O.A. No.3723/2017
2. Brief facts of the case as narrated by learned counsel for the applicant are as under:-
2.1 Respondents vide Advertisement No. 01/14 dated 20.01.2014 invited applications, inter-alia, for the post of TGT (Computer Science) (Post Code 192/14) in the Directorate of Education, Govt. of NCT of Delhi. In the Advertisement 1025 vacancies were for unreserved category, 547 vacancies were for OBC category, 303 vacancies were for Schedule Caste category and 151 vacancies were for Schedule Tribes category. The total vacancies advertised in the aforesaid Advertisement for the post of TGT (Computer Science) Post Code 192/14) were 2026 vacancies. The last date for submitting the application form was 27.02.2014. The applicant being duly eligible and qualified for the post of TGT (Computer Science) (Post Code 192/14) applied for the same in the Schedule Caste category. In May 2017, he was issued an Admit Card. In the said Admit Card Roll No. 13837628 was provided by the respondent. On 21.05.2017, written examination was conducted by the respondent. He 4 Item No. 53/ C- IV O.A. No.3723/2017 appeared in the said written examination and on 13.07.2017, the result of the aforesaid written examination was declared online and he had scored 69.50 marks in the same. In the result of it was also stated in the remarks column that the applicant has been short listed for the post code 192/14. The result of all the candidates who had appeared in the written examination was not displayed/uploaded by the respondents on its website. Each candidate who wanted to check his/her result was required to furnish/upload his/her information on the website of the Delhi Subordinate Services Selection Board (DSSSB) and only thereafter the result of the said individual candidate was displayed on the website. It is, therefore, submitted , that no individual candidates could see or had access to the result of other candidate who had appeared m the written examination. The said action on the part of the respondents in not disclosing the result of all the candidates who had appeared in the written examination is by itself illegal, unjustified, arbitrary 5 Item No. 53/ C- IV O.A. No.3723/2017 and amounts to violation of Articles 14 & 16 of the Constitution of India. Vide Notice dated 27.07.2017, respondents directed the candidates, who were in the consideration zone of appointment, to upload the required documents. The list of essential documents, which were required to be uploaded, was also given in the said Notice dated 27.07.2017. Thereafter, vide Result Notice No. I87 dated I5.09.2017, 275 candidates were "provisionally nominated/selected against the vacancies notified under Schedule Caste (SC) category for the post of TGT (Computer Science) (Post Code I92/I4)." The roll number of the applicant was not there in the aforesaid list of 275 candidates 11.10.2017. Thereafter, vide Result Notice No. I96 dated 11.10.2017, 11 more candidates were provisionally selected in the Schedule Caste (SC) category for appointment on the post of TGT (Computer Science) (Post Code I92/I4). The roll number of the applicant was not displayed even in the-said list of 11 candidates. Being aggrieved by the aforesaid impugned letter of the respondents, the 6 Item No. 53/ C- IV O.A. No.3723/2017 applicant sent a Legal Notice dated 14.10.2017 through his counsel to the respondents herein but, however, no response to the said Legal Notice dated 14.10.2017 has been received by the applicant till date. Hence, the present application.
3. Per contra, learned counsel for the respondents vehemently opposes the grant of relief in the matter and reiterates that averments made in the counter affidavit. Relevant portion reads as under:-
"1. That the Board advertised the vacancies, inter- alia for the post of TGT (Computer Science) under Post Code- 192/14 vide advertisement No.01/14. The applicant, Sh. Tarun Khairwal applied for the said post under Scheduled Caste(SC) category. One tier written examination was conducted on 21.05.2017. The applicant scored 69.50 marks in the examination. Out of the 303 vacancies notified under the SC category, 607 candidates were shortlisted. Since the applicant was falling in the consideration zone, he was asked to upload the documents on the e-dossier portal.
2. That the last candidate provisionally nominated to the post of TGT (Computer Science), Post Code- 192/14 under SC category scored 75.00 marks whereas the applicant scored 69.50 marks.
3. That out of the 303 vacancies notified, 302 vacancies have been filled and one vacancy has been kept reserved for Court case candidate, as per the interim directions· of this Hon'ble Tribunal.
4. That merely short listing a candidate does not entitle him for selection as the results are processed in merit. Since the applicant was lower in merit, his 7 Item No. 53/ C- IV O.A. No.3723/2017 candidature could not be considered for provisional nomination."
3.1 Learned counsel for the respondents states that present matter is squarely covered by the decision rendered in OA No. 2579/2019, titled Gaurav Kumar & ors. vs. GNCTD & Ors dated 17.02.2021 by a co- ordinate Bench of the Tribunal. He states that the said decision has been upheld by the Hon'ble High Court of Delhi in W.P. (C) No.6781/2024 on 01.09.2022. Relevant extracts of the said decision reads as under:-
"14. Thus, in the facts of the present case, it is clear that the Wait List was indeed operated, coupled with the fact that the petitioners were below the marks obtained by the last selected candidate, no case is made out warranting interference under the writ jurisdiction.
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20. This Court also cannot countenance a situation where, under writ jurisdiction, a direction or mandamus may be issued to the respondent to fill up the vacancies with candidates who are lower in merit and to select persons with mediocre results. The substratum to hold competitive examinations to select the best and meritorious candidates would be defeated.
21. It would be apposite to refer to the judgment rendered by the Supreme Court in the case of Municipal Corporation of Delhi vs. Surender Singh and Ors., reported in 2019 (8) SCC 67, holding as under :-
"19. On noticing the manner of consideration made by the Division Bench, we are of the 8 Item No. 53/ C- IV O.A. No.3723/2017 view that the Division Bench has exceeded the jurisdiction while exercising the power of judicial review in the matter of selection process by evolving its own criteria and substituting the same with the criteria adopted by recruiting agency. We are of the said view for the reason that the position of law is well established that the recruiting agency cannot be compelled to fill up all available posts even if the persons of the desired merit are not available. This Court in Ashwani Kumar Singh v. U.P. Public Service Commission [Ashwani Kumar Singh v. U.P. Public Service Commission, (2003) 11 SCC 584 : 2004 SCC (L&S) 95] relied upon by the learned counsel for the appellant had considered these aspects and held that it is not a rule of universal application that whenever vacancies exist persons who are in the merit list per force have to be appointed. It is held therein that if the employer fixes the cut-off position the same is not to be tinkered with unless it is totally irrational or tainted with mala fides. It was further stated therein that the employer in its wisdom may consider the particular range of selection to be appropriate. The decision of the employer to appoint a particular number of candidates cannot be interfered with unless it is irrational or mala fide.
xxx
22. In that regard we notice that the decision relied upon would not be of assistance to the private respondents herein. The consideration made therein was with regard to the employees who were entitled to continue in service till the age of 60 years. In that circumstance, such of those persons who approached the Court while they were in service without accepting or acquiescing to the retirement were granted the benefit while indicating that those who did not agitate their right will not be entitled to the benefit. In the instant case, the very issue is relating to the recruitment into service and the question is as to whether a candidate who does not obtain the minimum required marks can be directed to be selected while in the regular course he would not be entitled to, but a consideration is 9 Item No. 53/ C- IV O.A. No.3723/2017 directed to be made only because certain posts were still vacant. In such circumstance, the candidates who had not approached the Court had not acquiesced any right available to them but had not approached the court only by realising the position that they do not possess the merit more than the last candidate whose percentage was taken as the cut-off percentage. Therefore in that circumstance irrespective of the fact whether the others would approach the court or not, the private respondents herein could not have been given the benefit to be selected by lowering the bar, more so when it was evident that there were 40 candidates above the merit of Shri Rakesh Sharma and 263 candidates above the merit of Shri Surender Singh. 23. Any undue sympathy shown to the private respondents herein so as to direct their selection despite not possessing the desired merit would amount to interference with the right of the employer to have suitable candidates and would also cause injustice to the other candidates who had participated in the process and had secured a better percentage of marks than the private respondents herein but lower than the cut-off percentage and had accepted the legal position with regard to the employer's right in selection process. In such event providing the benefit to the private respondents herein by applying the principles laid in U.P. Jal Nigam [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] as done by the Division Bench would not be justified."
The fact situation obtaining in the present case gets covered by this authoritative pronouncement of the Supreme Court."
4. In view of the pleadings and propositions as held by the Hon'ble High Court of Delhi, the OA deserves to be dismissed. Accordingly, the same is dismissed. 10
Item No. 53/ C- IV O.A. No.3723/2017
5. No order as to costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sm/