Central Administrative Tribunal - Delhi
Pradeep Kumar vs Govt. Of Nctd on 17 May, 2022
1
O.A. No. 360/2015
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 360/2015
New Delhi, this 17th day of May, 2022
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Pradeep Kumar, Aged about 27 years,
S/o Sh. Rajender Singh,
R/o H.No.907, Pana Mojan,
Bawana, Delhi. ...Applicant
(By Advocate: Mr. M.K. Bhardwaj)
Versus
1. Govt. of NCT of Delhi through
The Chief Secretary,
Govt. of NCT of Delhi,
New Secretariat, IP Estate,
New Delhi.
2. Delhi Subordinate Services Selection Board
Through its Chairman,
FC-18, Institutional Area,
Karkardoom, Delhi.
3. North Delhi Municipal Corporation,
Through its Commissioner,
SPM Civic Centre, Mintro Road,
New Delhi. ...Respondents
(By Advocate: Mr. Amit Anand)
ORDER (Oral)
Hon'ble Ms. Manjula Das, Chairman:
In the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"(i) To declare the action of respondents in not considering the applicant for the appointment to the post of Teacher (Primary) as illegal, arbitrary and unjustified.2 O.A. No. 360/2015
(ii) To declare the applicant as suitable for appointment to the post of Teacher (Primary) and direct the respondents to appoint the applicant as Teacher (Primary).
(iii) To declare the action of respondents in increasing the qualifying marks for appointment to the post of Teacher (Primary) for OBC category from 30% to 35% and not applying the relax standard to fill up all the notified vacancies in OBC category as illegal and direct the respondents to consider the applicant for appointment to the post of Teacher (Primary) by relaxing the standard and giving bonus marks for the deleted questions.
(iv) To allow the OA with cost.
(v) Any other orders may also be passed as this Hon'ble Tribunal may deem fit and proper in the existing facts and circumstances of the case."
2. Brief facts of the case are that the respondent nos. 1 & 2 vide advertisement Post Code 70/09 invited applications for filling up 4500 vacancies (UR-1900, OBC-1044, SC-766, ST-790, PH-52, and Ex-servicemen-982) of Teacher (Primary) on regular basis which were subsequently revised to 6500 vacancies. The eligibility conditions prescribed in the aforesaid advertisement, read as under:-
"(i) Senior Secondary School Certificate or its equivalent from a recognized board/Institute with 50% marks;
(ii) 2 years diploma certificate course in ETE (JBT) or B.El.Ed from recognized institutions or its equivalent;
(iii) must have passed Hindi as a subject at secondary level."
3. The applicant, being eligible, applied for the said post. It is stated that the selection process would be consisting of preliminary examination (objective type) and main 3 O.A. No. 360/2015 examination (descriptive type). It was also made clear that the minimum qualifying marks for preliminary examination (multiple choice questions) objective type is 40% for general category candidates, 30% for reserved category candidates and minimum qualifying marks for general in main examination is 45% and 35% for reserved category. It is further stated that the respondents issued the revised advertisement no.004/09 in September, 2011 making it clear that candidates who have already submitted their application forms are not required to apply again except depositing the additional fee of Rs.50/-. However, the respondents did not proceed further and in February, 2013, New Examination Scheme was introduced vide notice dated 14.02.2013, which was made retrospectively w.e.f. 01.01.2013, changing the examination pattern by providing 1-tier (multiple choice question) objective type examination and further through another notice dated 26.04.2013, the minimum qualifying marks were increased for OBC category only from 30% to 35% whereas general and SC/ST category minimum qualifying marks remained the same as mentioned in the first advertisement as well as revised advertisement. It is stated that after notifying the aforesaid criteria, the respondents issued notification for the Post Code 70/09, Teacher (Primary) on 08.01.2014 making it 4 O.A. No. 360/2015 clear that all the earlier notifications issued by DSSSB in reference to aforesaid post code stood superseded and now there would be only one-tier objective type examination (multiple choice questions) of two hours. Subsequently, the respondents conducted the written examination on 02.02.2014 in which applicant (roll no.07060562) appeared under OBC category. The applicant states that though there were total 200 questions in the question paper, yet in March, 2014 the respondents issued a notice dated 04.03.2014 whereby 2 questions in each series A, B, C & D were directed to be treated as cancelled and accordingly total number of questions remained 198 instead of 200. The respondents declared the marks of the said examination held on 02.02.2014 vide notice dated 08.07.2014 wherein the applicant secured 68.25 marks i.e. more than the qualifying marks of 30% as prescribed in para 4 of the note in initial and revised advertisements. However, he was not declared successful on the ground that he did not secure 35% marks which was increased from 30% to 35% for OBC category only after issuing a subsequent notice dated 26.04.2013, whereas minimum qualifying marks for general and SC/ST categories remained the same as were shown in both the advertisements.
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4. Aggrieved, the applicant submitted representation dated 01.12.2014 stating that since two questions having double correct options as answers, were deleted, the same has impacted his chances to qualify the said examination. He also stated that by reducing the questions, the candidates were deprived from securing the arbitrarily increased minimum qualifying marks and as a result thereof, the right of fair consideration for appointment was infringed. The applicant submitted yet another representation dated 03.12.2014 challenging the action of the respondents in increasing the qualifying minimum marks and not applying the relaxed standard for OBC category only in spite of availability of number of vacancies when candidates, who secured 35% marks or above were less than the available vacancies in OBC category, and accordingly, the minimum qualifying marks were required to be reduced to 30%, as was prescribed in the initial and revised advertisements. It is the case of the applicant that without considering his representations, the respondents issued the select list vide office order No.343 dated 05.12.2014 which clearly reveals that total number of vacancies either in general category or in OBC category were filled. In support of his claim, the applicant has relied upon OM No.1/1/70-Estt(SCT) dated 6 O.A. No. 360/2015 25.07.1970 issued by the Ministry of Home Affairs, para 3.8 whereof reads as under:-
"Relaxation of Standard of Suitability in Direct Recruitment.
3.8 In direct recruitment whether by examination or otherwise, if sufficient number of Scheduled Caste/Scheduled Tribe/Other Backward Class candidates are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to these communities should be selected to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes cannot be filled on the basis of general standard, candidates belonging to these communities will be taken by relaxed standard to make up the deficiency in the reserved quota, subject to the fitness of these candidates for appointment to the post/posts in question."
5. The respondent nos. 1 & 2 have filed counter affidavit opposing the OA. It is stated that the DSSSB at its discretion may fix minimum qualifying marks/cut off marks for each category of candidates. Accordingly, as per the policy decision of the Board, minimum qualifying marks were fixed for one tier/two tier written examination (objective type/descriptive type) for each category of candidates. The notice in this regard was given on 26.04.2013 and the examination was conducted on 02.02.2014. It is also relevant to mention here that the criteria of different minimum qualifying/cut off marks for different categories of candidates (e.g. General/OBC/SC/ST) is being followed by other Boards, like SSC/UPSC also. It is further stated by the 7 O.A. No. 360/2015 respondents that it is the responsibility of the Board to select better candidates for any post. Insofar as deletion of two questions is concerned, it is averred by the respondents that the decision to delete two wrong questions was taken by the Board in light of order dated 29.06.2013 passed by the Hon'ble Mumbai High Court in WP(C) No.2209/2013 wherein it has been observed that in case the questions have negative marking system then the awarding of marks for the wrong question would give undue benefit to some students. Therefore, deleting the question would bring all candidates to the same level.
6. The respondent no.3 has filed its reply stating that after trifurcation of MCD, South DMC has been entrusted with the work of recruitment of teachers for all the three Corporations and the answering respondent is a user department. Therefore, the candidates for appointment to the post of Teacher (Primary) are selected by the respondent no.2 DSSSB and not by the South DMC.
7. We have heard Mr. M.K. Bhardwaj, learned counsel for the applicant and Mr. Amit Anand, learned counsel for the respondents and have carefully gone through the pleadings on record.
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8. The only issue involved in this OA is whether the act of the respondents in fixing the cut-off marks for the OBC category candidates for appointment to the post of Teacher (Primary) is arbitrary?
9. As per new examination scheme introduced in the year 2013 i.e. before holding of the exam on 02.02.2014, the minimum qualifying marks were increased from 30% to 35% for OBC category only, and it was not an afterthought. Hence, the applicant, after appearing in the said exam and not securing the minimum qualifying marks as fixed by the respondents, cannot now turn around and question the validity of the said scheme. However, the applicant, if not satisfied with the cut off marks as stipulated in the Scheme, was required to challenge the same in the beginning itself of the selection process, and not after declaration of the result. Moreover, it is the prerogative of the competent authority to fix the criteria for selecting meritorious candidates. In this regard, the judgment relied upon by the respondents in the case of Union of India & Ors. vs. S. Vinodh Kumar & Ors [2007 (8) SCC 100] is applicable in this case and particularly para 10, which reads as under:-
"10. It may be true that the cut-off marks at 71 had been fixed for unreserved candidates on the basis that marks obtained by the last candidate, i.e. 240th candidate, calculated at 50% of the 480 candidates, 9 O.A. No. 360/2015 but concededly 56 marks were fixed for Other Backward Classes candidates and 20 marks were fixed for Scheduled Caste and Scheduled Tribe candidates. Only because the cut-off marks at 71 had been fixed on the basis of the aforementioned criteria, the same by itself, in our opinion, would not mean that no cut-off mark had been fixed. The fact that the Railway Administration intended to fix the cut-off mark for the purpose of filling up the vacancies in respect of the general category as also reserved category candidates is evident from the fact that different cut-off marks were fixed for different categories of candidates. We are, therefore, unable to accept the submission of the learned counsel that the cut-off marks fixed was wholly arbitrary so as to offend the principles of equality enshrined under Article 14 of the Constitution of India. The power of the employer to fix the cut-off marks is neither denied nor disputed. If the curt-off mark was fixed on a rational basis, no exception thereto can be taken."
10. In light of the aforesaid decision, we are of the considered opinion that the respondents have the authority to fix cut off marks for selecting the meritorious candidates, and the applicant having participated in the examination is precluded from challenging the selection at this stage. Hence, we find that the OA lacks merit. The same is accordingly dismissed.
11. There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das) Member (A) Chairman /Ahuja/