Delhi High Court
Ghanshyam And Ors. vs D.S.S.S.B. And Ors. on 29 November, 2007
Author: Hima Kohli
Bench: Hima Kohli
JUDGMENT Hima Kohli, J.
1. Rule.
2. With the consent of the counsels for the parties, all the writ petitions are taken up for final hearing and disposal by passing a common order, as the issues involved are common. As the facts of the cases are similar, vide order dated 14th March, 2007, it was directed that WP(C) No. 16126-30/2006 shall be treated as the lead matter for deciding all the connected writ petitions.
3. The present writ petition is filed by the petitioners praying inter alia for quashing Clauses 25 and 26 contained in the Mode of Selection in Advertisement No. 1/2006 issued by respondent No. 1, DSSSB, for filling up the posts of Assistant Teacher (Primary) in the respondent No. 2, MCD, as being violative of the directions contained in the judgment dated 18th February, 2005 passed in WP(C) No. 5650-51/2004 entitled "Kuldeep Singh and Anr. v. DSSSB and Anr." and for directions to respondent No. 1 to consider the case of the petitioners against the remaining vacancies without fixing minimum qualifying marks for selection and publish the results of all the vacancies as also to fill up the same, as mentioned in the aforesaid Advertisement.
4. Briefly stated, the facts of the case are that on 1st May, 2006, respondent No. 1, DSSSB issued the impugned advertisement No. 1/2006 for recruitment to 3348 posts of Assistant Teacher (Primary) in respondent No. 2, MCD. In part II of the advertisement, respondent No. 1 prescribed the Mode of Selection. Clauses 25 & 26 of the said advertisement are relevant and read as under:
25. The Board has full discretion to fix minimum qualifying marks for selection for each category i.e. ST/ST etc. of post in order to achieve qualitative selection and to pick up the best talent available.
26. The marks obtained by the candidate in written examination will not be disclosed in any case.
5. In partial modification of the aforesaid advertisement, a corrigendum dated 14th May, 2006 was published by respondent No. 1 declaring that out of 3348 vacancies, 2348 vacancies would be filled up and a panel of 1000 candidates would be prepared and kept in reserve by respondent No. 1 as per the request of respondent No. 2, from which candidates may be sent to respondent No. 2 after getting a request to the said effect. All the petitioners, some of whom were already working as Assistant Teacher (Primary) in the schools of respondent No. 2 on contractual basis, applied for the posts of Assistant Teacher (Primary) under Code No. 01/2006. The eligibility criteria for the said post is a Diploma/Certificate in Basic Teacher's Training of a B.El.Ed. Degree, apart from Senior Secondary School Certificate or its equivalent. The examination to the aforesaid posts of Assistant Teacher (Primary) was held on 2nd July, 2006 and on 27th July, 2006, the result of 1638 posts was declared out of a total of 3348 posts advertised by respondent No. 1.
6. It is the case of the petitioners that when they contacted the respondents regarding the non-publishing of the results for all the posts, they were informed by the respondents that they had fixed certain minimum marks as per their discretion, as mentioned in the advertisement, and that they had found only 1638 candidates achieving the said minimum marks and therefore the results of only 1638 candidates were declared. It is averred on behalf of the petitioners that the recruitment process adopted by respondent No. 1 in the impugned advertisement is contrary to the directions passed by this Court in the case of Kuldeep Singh (supra) and that the action of respondent No. 1 in refusing to give any details about the minimum qualifying marks allegedly fixed by it unilaterally on the ground of disclaimer made in the advertisement itself, as also its refusal to furnish the details of the marks obtained by individual candidates, is contrary to the directions of this Court and further that the action of respondent No. 1 in this regard being unilateral and arbitrary, is liable to be quashed.
7. Learned Senior Advocate for the petitioners urged that the petitioners have been denied their right to information by respondent No. 1 inasmuch as the reply furnished to the application filed by the petitioners for information was to the effect that since the complete result had not been declared, the required information being confidential in nature, could not be furnished. He further submitted that though there is no provision analogous to the Article 141 of the Constitution of India in respect of the High Court, but relying on the principles laid down by the Supreme Court in the case of East India Commercial Co. v. Collector of Customs reported as , the directions passed in the case of Kuldeep Singh (supra) by this Court are binding on respondent No. 1 and that this Court while deciding the present cases is bound by comity to pass an order in terms of the directions passed in Kuldeep Singh's case (supra). In this context, learned Senior Advocate for the petitioners sought to draw support from a judgment rendered by the Supreme Court in the case of Mamleshwar Prasad v. Kanhaiya Lal reported as .
8. It was also submitted on behalf of the petitioners that all kinds of errors or mis-governance are liable to be corrected in exercise of writ jurisdiction and that this Court while exercising such jurisdiction under Article 226 of the Constitution of India, has the power to issue a writ in the nature of mandamus or pass any such necessary orders to compel performance by the Government and to exercise the discretion conferred on it in a proper and rightful manner, in order to prevent injustice to the concerned party. In this regard, he referred to a judgment of the Supreme Court in the case of The Comptroller & Auditor General v. K.S. Jagannathan reported as . It was contended on behalf of the petitioners that acting contrary to the judgment in the case of Kuldeep Singh (supra) amounts to contempt of Court, and therefore injunctive relief ought to be granted in favor of the petitioners restraining the respondents from acting in any manner but in compliance with the directions of this Court in Kuldeep Singh' s case.
9. Lastly, it was submitted that respondent No. 1 has to follow the requisition given by respondent No. 2 for undertaking the selection process and that respondent No. 1 was merely an agency to conduct the interviews/tests and prepare a select panel for respondent No. 2. It was urged that any attempt on the part of respondent No. 1 to lay down its own criteria for scrutinizing the eligible candidates by fixing minimum marks in the examination based on the questions of 10th to 10+2 standard is not permissible, as respondent No. 2 had never given any requisition to respondent No. 1 for fixing minimum qualifying marks. In this regard, he sought to place reliance on the observations of this Court in an order dated 21st April, 2006 passed in CCP No. 370/2003 entitled " Social Jurist v. T.T. Joseph and Anr." and also submitted that the very fact that most of the petitioners were personnel working as Assistant Teacher (Primary) on contract basis in schools run by respondent No. 2, went on to show that they were neither incompetent nor unable to perform their duty and were thus entitled to be appointed as Assistant Teacher (Primary) in respondent No. 2.
10. The aforesaid contentions were vehemently refuted by the counsels for the respondents. Counsels for respondents No. 1 and 2 submitted that there was no illegal or arbitrary exercise of power on the part of respondent No. 1 in fixing the cut off marks despite there being no mandate to it do the same, and nor was there an arbitrary exercise of power in declaring the results of only those candidates who were above that cut off mark. It was contended on behalf of the respondents that the writ petitions were not maintainable for the reason that there was no justiciable cause of action or legally enforceable right that had accrued in favor of the petitioners and that the respondents had neither acted contrary to the statute, nor failed to discharge their obligations in accordance with the statute, which warranted interference by this Court in the present proceedings.
11. Counsel for respondent No. 2 stated that the recruitment process, method of recruitment, laying down of eligibility criteria, creation/abolition of posts etc. are all matters relating to executive policy decisions and in the absence of any statutory rule/law, it is the executive decisions which hold the fort. In support of his contention that the Courts must not encroach into the executive or legislative domain except in rare and exceptional cases, counsel for the respondent No. 2 relied on the judgment in the case of Indian Drugs & Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd. JT 2006 (10) SC 216. He stated that appointments can be made on the basis of even administrative orders and it would be incorrect to contend that respondent No. 1 which is a specialist body specifically created by the executive for the purpose of selecting appropriate candidates to fill up vacancies in user departments, lacks the powers to decide the methodology of selection merely because there is no express law or rule authorising it to do so and that conversely, there is no law or rule which prevents such a specialist body from doing so either. Relying on the judgment of a Division Bench of this Court in the case of NCT of Delhi through the Department of Excise v. S.P. Khanna reported as , it was stated that the Courts ought not to interfere in public policy merely because the Court feels that another decision would be fairer or wiser or more logical.
12. Another contention raised by the counsel for respondent No. 2 was that the only ground taken by the petitioners for seeking judicial intervention in the process of selection adopted by the respondents was one of discrimination under Article 14 of the Constitution of India. He submitted that in the present case, it was for the petitioners to demonstrate as to how the criteria adopted by the respondent No. 1, i.e. fixing of cut off percentage had operated arbitrarily or discriminatorily against the petitioners, which onus they had failed to discharge inasmuch as it was not the case of any of the petitioners that the criteria adopted by respondent No. 1 was not fixed uniformly or that one cut off had been fixed for a particular group and yet another for another group. Reliance was placed on the judgment in the case of Haryana Public Service Commission v. Amarjeet Singh and Ors. 1999 Supreme Court Cases (L&S) 1451 to state that even if criteria fixed for selection was defective but it is applied uniformly, then the Court ought not to interfere in such cases. It was also submitted that the object of fixing the cut off marks was to select the best amongst the eligible candidates so as to appoint quality teachers and that this act had a direct nexus with the object sought to be achieved and hence there was no question of any violation of Article 14 or 16 of the Constitution of India by the respondents. Counsel for the respondent referred to the facts in the case of Kuldeep Singh (supra) and sought to bring out distinctive facts in the said case as compared to those in hand to state that in the instant case, the facts were different and the directions given in the said case were not applicable here.
13. It was strenuously urged on behalf of the respondents that even if it is assumed that the names of the petitioners figured in the select list, they did not acquire any indefeasible right of selection to the post merely because they took the examinations and that it would still be open for the Government not to make any selections at all for bonafide reasons if it is satisfied that the results of the candidates are not up to the mark. Reference in this regard was made to the judgment of the Supreme Court in the following cases:
(i) The State of Haryana v. Subash Chander Marwaha and Ors. .
(ii) Shankarsan Dash v. Union of India :
(iii) Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar and Anr.
(iv) Union of India and Anr. v. T. Sundararaman and Ors. .
(v) State of Orissa and Ors. v. Bhikari Charan Khuntia and Ors. .
14. Another ground urged on behalf of the respondents was that not only had the petitioners sat in the examinations held pursuant to the impugned advertisement, without any demur, but they waited right till the results were declared and only when they found that their names did not feature in the list of selected candidates, did they challenge the advertisement which itself disclosed the right reserved by respondent No. 1 to fix minimum qualifying marks for selection of candidates. Thus, it was contended that the petitioners are estopped from turning back and challenging the said action of the respondents, by filing the present petition and reliance in this respect was placed on the judgment rendered by the Supreme Court in the cases of Om Prakash v. Akhilesh Kumar reported as and Union of India v. N. Chandrasekharan and Ors. reported as .
15. Lastly, it was submitted that the vacancies of teachers are computed annually and sent to the respondent No. 1. By the time the select list was forwarded by the respondent No. 1 to the respondent No. 2, new vacancies had already been notified and the examination process was underway and therefore all vacancies stood lapsed. Hence, the question of any candidate claiming a vested right on the basis of lapsed vacancies did not arise and even if the directions in the case of Kuldeep Singh (supra) were sought to be implemented in toto, as per the mandate of the said judgment, the merit list prepared for a particular examination would automatically stand exhausted after a period of 90 plus 45 days post declaration of the result. In the cases in hand, the results were declared on 27th July, 2006 and after receipt of the select list given by respondent No. 1, respondent No. 2 had not sought any further names from respondent No. 1, and on respondent No. 1 proceeding to notify new vacancies to respondent No. 2, the select list of the examination stood automatically exhausted and could not be revived. For all the aforesaid reasons, it was urged on behalf of the respondents that the writ petitions were devoid of merits and liable to be rejected.
16. Counsel for the respondent No. 1 adopted the submissions made on behalf of the respondent No. 2 and supplemented the same by submitting that as there was no request received from the user department, namely, respondent No. 2 for operation of a panel in respect of the remaining vacancies, as stipulated in the corrigendum dated 14th May, 2006 issued in furtherance to the impugned advertisement, respondent No. 1 on its own could not forward the names of the candidates who were in the merit list below the last selected candidate, against such vacancies that could not be filled up due to non-reporting of selected candidates. It was further stated that if such an eventuality had arisen, then the respondent No. 1 would have adjudged the suitability of such candidates who were in the merit list below the last selected candidates for the unfilled vacancies by giving effect to its intentions as intimated in para 25 of the advertisement, by fixing minimum qualifying marks for selection. It was stated that such an eventuality did not arise for the reason that fresh requisitions were received from respondent No. 2 and as a result the old recruitment automatically stood lapsed after commencement of the new examination process.
17. As regards the judgment rendered in the case of Kuldeep Singh (supra), it was contended on behalf of the respondent No. 1 that the judgment did not debar it from introducing certain methods for achieving the objective of selecting the best talent available and maintaining a high educational standards so as to achieve good results of the students and reference was made to the judgment in the case of The State of Haryana v. Subash Chander Marwaha and Ors. reported as to state that it is open to the Government to fix a score which is the higher that the one required for mere eligibility for the post with a view to maintain high standard of competition. Thus, by fixing minimum qualifying marks for selection at large, the respondent No. 1 has safeguarded the interests of the students coming from poor families who cannot afford to send their wards to public schools. In respect of the successful candidates, it was stated that their results had been put in the website of respondent No. 1 though the entire results were not put up on the internet for the reason that the number of applicants in such examinations runs into thousands. However, the result sheet pertaining to the petitioners in the present writ petitions was made available to them for inspection and that it is not denied by any of the petitioners that they have obtained marks above the last selected candidates in their respective categories.
18. Respondent No. 1 also furnished the marks with percentage in respect of the categories for the examination held on 2nd July, 2006 and submitted that in order to achieve the object of selecting best teachers, respondent No. 1 has now started publishing the minimum percentage of marks required for qualifying the examinations with relaxation for the reserved category candidates.
19. Rebutting the contention of the counsels for the respondents that the petitioners were estopped from challenging the action of the respondents merely because they had appeared in the examination and waited for their results to be declared, it was submitted on behalf of the petitioners that the principle of estoppel has no application in the present case as the respondent No. 1 has committed glaring illegality in the selection process. [Refer: Raj Kumar and Ors. v. Shakti Raj and Ors. ]. It was also submitted that the directions passed in Kuldeep Singh (supra) had not been pointed out by the respondents to the Court in CCP No. 370/2003 and therefore directions were passed in the aforesaid contempt petition in ignorance of the directions issued in the case of Kuldeep Singh's case (supra) and ultimately fresh requisitions had been sent by respondent No. 2 for 2478 posts without any justification.
20. I have heard the counsels for the parties and have considered their respective submissions along with the judgments relied upon, particularly the judgment in the case of Kuldeep Singh (supra) which forms the backbone of the entire case of the petitioners.
21. To assess as to whether the respondents have violated the directions given in the case of Kuldeep Singh (supra) and if so, the orders required to be passed in the present cases, it will be necessary to examine the factual matrix of that case. In the case of Kuldeep Singh (supra), the court was concerned with the advertisement issued in the year 2002 in respect of various posts for which examinations were conducted on 27th October, 2002 and the results prepared by respondent No. 1 in respect of 421 vacancies to the post of Assistant Teacher (Primary) in the unreserved category. It was noted by the court in the said case that the advertisement did not contain any stipulation pertaining to minimum qualifying marks that should be obtained by each aspirant, nor did it indicate the maximum time limit for exhausting the vacancies envisaged in that examination. In the aforesaid case, the stands of DSSSB and the MCD were at variance. While the DSSSB contended that since there were 421 vacancies in the unreserved category, they had drawn a line after the 421st candidate and as per the DSSSB, after undertaking the said exercise, the vacancies stood exhausted. Per contra, the stand of the MCD was that it communicated with the DSSSB on a number of occasions asking it to forward the names of 66 candidates in February 2004 which had risen to 90 candidates by June 2004.
22. The aforesaid controversy was sought to be put at rest by the Court by addressing the question as to how these vacancies should be dealt with by the DSSSB as well as the user department therein, namely, MCD. In the aforesaid context, the court sought to answer the question as to whether it was open to the DSSSB to carry forward the vacancies which had occurred in a particular examination and also to indicate in the advertisement itself the outside date by which the entire list of a particular examination would be deemed to have been exhausted so as to make the applying candidates aware as to the date on which their candidatures would lapse. The aforesaid questions were answered by the Single Judge by passing the following directions:
A. Every User/Requisitioning Department must indicate to the DSSSB the number of the posts that are vacant against every category, and all of them should normally be filled up from the eligible candidates according to their standing.
B. If the User Department, in consultation with the DSSSB, is desirous of prescribing minimum qualifying marks, that should be mentioned clearly in the Advertisement itself.
C. The Advertisement must declare a period, which should be ninety (90) days, after the publication of the entire Merit List. This period has been recommended pursuant to a consensus between the DSSSB and the MCD. Within this period every successful candidate must take steps towards finalization of the employment. After that date, the rights of persons falling in the original zone of consideration lapse or get extinguished. Thereafter, for the further prescribed period intimated in the Advertisement itself, persons below the original zone of consideration, would be entitled to claim employment strictly in the order of merit. It is suggested that this period should be 45 days. After this period, the Merit List for that particular Examination would stand automatically exhausted. Since DSSSB is not the actual employer it cannot retain any power to carry forward the lapsed vacancy to any other Examination. It would be for User Department to indicate vacancies for any subsequent examinations. Learned Counsel for the DSSSB states that the Division Bench of this Court had directed that the Examination should be held on a yearly basis so that sufficient numbers of Teachers are always available. In the schedule suggested above, these orders would be easily implementable.
D. It is also directed that the entire List should be published on the Notice Board and on the NET so that every candidate would not have to take recourse to the Freedom of Information Act and would easily gain knowledge of his standing in the Merit List.
23. Pursuant to the aforesaid judgment rendered on 18th February, 2005, an order dated 21st April, 2006 was passed in CCP No. 370/2003 wherein the court took notice of the writ petition filed by the petitioner therein pointing out that the quality of education being imparted in schools run by MCD and Govt. of NCT of Delhi was not up to the mark and thus a public interest litigation petition, being WP (C) No. 1611/2001 was filed to state that the children studying in the said schools were not well equipped for future. One of the issues that arose for consideration in the said writ petition was the chronic shortage of teachers in MCD schools and schools established by the Government of NCT of Delhi and it was noted that the recruitment process was not initiated within time and wherever initiated, would get bogged down in procedural formalities resulting in necessary vacancies being filled up after almost half the academic session had got completed, apart from vacancies which arise on account of resignations, promotions, retirements leaving a shortfall of about 30% of teachers on each working day in schools. Taking into consideration the aforesaid position, the MCD and the Government of NCT of Delhi were directed to complete the exercise of identifying the number of vacant posts and estimated vacancies in the ensuing year well in advance, and notifying the same to the DSSSB, the recruitment agency, by the first week of April of each year so as to enable it to undertake the process of recruitment.
24. In the contempt petition, being CCP No. 370/2003, while taking note of the subsequent events and further litigations that ensued on the aforesaid issue, including those relating to recruitment regulations for appointment of Assistant Teacher (Primary), in one of the cases MCD sought directions to the DSSSB requiring it to complete the process and intimate the MCD about the select list, so as to ensure that the panel was ready by June 2006 and to have zero vacancy in the month of July 2006.
25. While dealing with the aforesaid issue, the Court passed the order dated 21st April, 2006, wherein it examined the powers and functions of the DSSSB vis-a-vis the user department and noted that the DSSSB is not created under any statute but is a creation of the Government of NCT of Delhi in exercise of the executive powers vested in the Government, its status therefore being akin to that of a Government department. Thus its mandate would be as per the relevant office orders or notifications issued by the Government and the powers vested in it would be executive powers. Observing so, it was held that the legal position of the DSSSB was that of an agency to conduct interviews/tests and prepare a select panel and forward the same to the user department. However, it would not be answerable if disputes relate to issues other than the actual selection process, including disputes pertaining to number of vacancies, category in which they fall etc. which would be for the user department to deal with.
26. Another relevant order which the parties drew the attention of this Court to, was the one passed on 21st September, 2006 in the aforesaid contempt petition wherein the Court ordered the MCD to complete the whole process in respect of the balance number of vacancies for which names were forwarded, within three weeks from the date of the order. While taking note of the submissions made on behalf of the MCD and the Government of NCT of Delhi to the effect that a large number of vacancies in the promotion quota were available with the Government of NCT of Delhi and 2005 vacancies existed in the direct recruitment categories in the Government schools, the Court, inter alia, directed the MCD to send its requisitions in respect of the balance number of vacancies in the categories of Assistant Teacher (Primary) [out of 3046 post of teachers] to the DSSSB within two weeks and the latter was directed to advertise the same posts and initiate the recruitment process and make an endeavor to complete the same by 30th November, 2006. Similar directions were issued in respect of the posts in the schools run by the Government of NCT of Delhi and compliance affidavit was required to be filed by the respondents.
27. It is pursuant to the aforesaid directions that respondent No. 2 sent its requisition in respect of vacancies in the category of Assistant Teacher (Primary) to the respondent No. 1, who in turn issued the impugned advertisement No. 1/2006, which is the subject matter of the present writ petitions. It is relevant to note that in the present case, while the respondent No. 1 had as per the requisition of the user department, namely respondent No. 2, advertised 2348 (actual) and 1000 (panel) vacancies of Assistant Teachers (Primary), results were declared on 27th July, 2006 in respect of all the vacancies (actual) in unreserved and SC category, except for two vacancies. Against 633 vacancies in OBC category, the results of only 396 vacancies were declared and result of 229 candidates were kept pending for want of clarification about the admissibility of benefit of reservation to OBC candidates, other than those of Delhi origin. In ST category of 520 candidates, only 41 candidates could be selected even after lowering the cut off marks. The non-filling of ST category vacancies was conveyed by respondent No. 1 to respondent No. 2 vide letter dated 8th September, 2006 and respondent No. 2 in turn forwarded further requisition for 2478 vacancies of Assistant Teacher (Primary) vide its letter dated 11th October, 2006, which included fresh as well as backlog vacancies. Thereafter, respondent No. 2 vide its letter dated 8th November, 2006 returned the dossiers of 64 candidates without making any mention about the operation of the panel.
28. It was stated on behalf of the respondent No. 1 that respondent No. 2 gave fresh vacancies to it in October, 2006 for 2478 posts, which were increased to 3241 vacancies in January 2007 and that pursuant to the orders dated 21st April, 2006 and 21st September, 2006 passed in CCP No. 370/2003, the respondent No. 2 not only forwarded to the respondent No. 1, the requisition in respect of the balance number of vacancies in the category of Assistant Teacher (Primary), but the latter also issued an advertisement for the said posts on 28th January, 2007 and initiated the recruitment process. Counsel for the respondent No. 1 submitted that vide the aforesaid order dated 21st April, 2006, it was directed to advertise specified educational qualification in conformity with NCTE Regulations, without insisting upon formal amendments to the notified recruitment rules. In the meantime, the recruitment rules were amended and the said amended recruitment rules were notified on 13th July, 2007. As the eligibility norms published in the earlier advertisement issued in January, 2007, differed with the eligibility criteria prescribed in the amended recruitment rules, a request was made by the respondent No. 2 to the respondent No. 1 to withdraw the advertisement. Accordingly, the respondent No. 1 issued a withdrawal notice with fresh advertisement including some more vacancies, which was released on 19th September 2007 in the leading newspapers and on 6th October, 2007 in the Employment News. The advertised number of vacancies accordingly increased from 3241 in January 2007 to 4441 in September 2007.
29. It is also pertinent to note that in the present case, an interim order dated 30th October, 2006 was passed to the effect that no further appointments be made by the respondents till the next date of hearing. The aforesaid order was modified on 29th November, 2006 by directing that there shall be no appointments made till further orders but there will be no bar on the respondents in taking action in that context and that is how the respondent No. 1 initiated further steps to undertake the recruitment process in respect of the vacant posts requisitioned by the respondent No. 2 in the category of Assistant Teacher (Primary).
30. In the backdrop of the present case discussed herein, the contention on behalf of the petitioners that the recruitment process adopted by the respondent No. 1 in the impugned advertisement is contrary to the directions passed by this Court in the case of Kuldeep Singh (supra) and the said action amounts to contempt of court thus entitling the petitioners to injunctive relief against the respondents is not tenable. The directions issued by the learned Single Judge in Kuldeep Singh (supra) were in a particular factual backdrop wherein not only was the recruitment process not undertaken on an annual basis, thus letting posts lie vacant for long durations, but there was disparity between the stand of the DSSSB and the MCD with respect to the maximum time limit for exhausting the vacancies envisaged in the examination conducted for the post of Assistant Teacher (Primary) in the year 2002. The other issue raised therein was pertaining to stipulating minimum qualifying marks that ought to be obtained by each aspirant. It was in the said factual background that certain directions were issued in the case of Kuldeep Singh (supra).
31. In the present case, the impugned advertisement No. 1/2006 indicated in column 25 thereof that the DSSSB had full discretion to fix the minimum qualifying marks for selection of different categories of posts to achieve qualitative selection and to pick up the best talent available. Even if the respondent No. 2, the user department did not make a request to the respondent No. 1 prescribing minimum qualifying marks as directed in the case of Kuldeep Singh (supra), nothing precluded the respondent No. 1 from deciding as to what procedure was to be followed for selecting the best candidates from amongst the applicants. Considering the fact that thousands and thousands of aspirants had applied for being appointed to the posts in question, it was all the more necessary to lay out some rational and objective basis for properly assigning and evaluating the candidates.
32. The Supreme Court has in the case of B. Ramakichenin @ Balagandhi v. Union of India and Ors., being Civil Appeal No. 5274/2007, decided on 16th November, 2007, has held as below:
Para 15: It is well settled that the method of short-listing can be validly adopted by the Selection Body. (Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar and Anr. (1994) 6 SCC 293 & Government of Andhra Pradesh v. P. Dilip Kumar and Anr.
Para 16: Even if there is no rule providing for short-listing nor any mention of it in the advertisement calling for applications for the post, the Selection Body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of short-listing can be resorted to by the Selection Body, even though there is no mention of short-listing in the rules or in the advertisement.
33. In the case of Madhya Pradesh Public Service Commission (supra), the Supreme Court while examining the power of the Madhya Pradesh Public Service Commission, to alter or substitute the criteria of eligibility of a candidate to be considered for appointment against the post of Presiding Officer, Labour Court, in the process of shortlisting, observed as below:
Para 6: The question which is to be answered is as to whether in the process of short-listing, the Commission has altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates from amongst the applicants. In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which govern the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. It has been impressed by the courts from time to time that where selections are to be made only on the basis of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate.
Para 9:...It need not be pointed out that this decision regarding short-listing the number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of selection of the best candidates among the applicants for the post in question. This process of short-listing shall not amount to altering or substituting the eligibility criteria given in statutory rules or prospectus. In substance and reality, this process of short-listing is part of the process of selection....
Para 10: This Court in the case of State of Haryana v. Subash Chander Marwaha had to consider as to whether the appointments could have been offered only to those who had scored not less than 55% marks when Rule 8 which was under consideration, in that case, made candidates who had obtained 45% or more in competitive examination eligible for appointment. This Court held that Rule 8 was a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit and the one higher in rank is deemed to be more meritorious than the one who is lower in the rank. There was nothing arbitrary in fixing the scoring of 55% for the purpose of selection although a candidate obtaining 45% was eligible to be appointed.
34. Rather, a survey of the law on the issue reveals that the Courts have gone to the extent of observing that even if the criteria fixed is defective, the Courts should ordinarily not interfere as long as the same standard/yardstick has been applied to all and did not prejudice any particular set of candidates. [Refer: Haryana Public Service Commission v. Amarjeet Singh and Ors. 1999 Supreme Court Cases (L&S) 1451 and NCT of Delhi through the Department of Excise v. S.P. Khanna ].
35. Though the respondent No. 2, MCD which is the user department ought to have consulted respondent No. 1 for prescribing minimum qualifying marks, in line with the directions issued in the case of Kuldeep Singh (supra), it is not as if respondent No. 2 has raised any grievance about the minimum qualifying marks fixed by the respondent No. 1 in the impugned advertisement. Rather, the respondent No. 2 has supported the said criteria fixed by respondent No. 1 as indicated in the advertisement. It needs to be emphasized that the respondent No. 1 has been specially created by the executive for the purposes of selecting appropriate candidates to fill up vacancies in the user departments. Thus, it is all the more incumbent upon the said respondent No. 1 to discharge its obligations by fixing a criteria for declaring the successful candidates wherever the user department has failed to do so. Had the petitioners pointed out any illegality or arbitrariness on the part of the respondent No. 1 in applying the criteria fixed by it uniformly to all the candidates, there would have been some justification for the Court to interfere in the decision of the respondent No. 1.
36. There is force in the argument raised on behalf of the respondents that if the maximum time limit stipulated in the case of Kuldeep Singh (supra) is kept in mind, then the only conclusion one can arrive at is that the entire list prepared pursuant to the impugned advertisement stands automatically exhausted. In the present case, the results of the successful candidates were declared on 27th July, 2006. It is a matter of record that after receipt of the select list furnished by the respondent No. 1 to the respondent No. 2, the latter did not seek any further names from the respondent No. 1. Thus, the respondent No. 1 could not operate a panel in respect of the remaining vacancies as stipulated in the corrigendum dated 14th May, 2006 issued in furtherance to the impugned advertisement. Such an eventuality did not arise for the reason that fresh requisitions were forwarded by the respondent No. 2 to the respondent No. 1 who proceeded to notify the new vacancies in terms of the order dated 21st September, 2006 passed in CCP No. 370/2003. Consequently, the select list of the examination held pursuant to the impugned advertisement stood automatically exhausted after expiry of a period of 90 plus 45 days, post declaration of the results in terms of the judgment in the case of Kuldeep Singh (supra) and the said select list, which has since lapsed, cannot be revived at the instance of the petitioners, more so when the backlog vacancies have also been added to in the subsequent advertisements issued by the respondents in January 2007 and September-October 2007.
37. As noted above, the interim order dated 30th October, 2006 passed to the effect that no further appointments shall be made by the respondents till the next date of hearing, was modified vide order dated 29th November, 2006 and directions were issued that there shall be no appointments till further orders but there will be no bar on the respondents taking action in that context. It is apparent that the initial interim order was modified only to ensure that the interests of the students are taken care of and steps are taken at the earliest to fill up the chronic shortage of teachers in the MCD schools by initiating the recruitment process within time for appointment of teachers. It was pursuant to the aforesaid modification of the earlier interim order dated 30th October, 2006 that the respondent No. 1 took further steps to undertake the recruitment process in respect of the vacant posts notified and requisitioned by the respondent No. 2 in the category of Assistant Teacher (Primary), which is now stated to be at an advanced stage.
38. Much emphasis has been laid on behalf of the petitioners, on the order dated 21st April, 2006 passed in CCP No. 370/2003, particularly the powers and functions of the DSSSB, respondent No. 1, vis-a-vis the user department. A perusal of the aforesaid order shows that the court took note of the legal position that the respondent No. 1 was a creation of the Govt. of NCT of Delhi in exercise of the executive powers vested in the Government and its status was akin to that of the Government department assigned with the task of conducting interviews/tests, preparing a select panel, and forwarding the same to the user department. However, it was observed that while the respondent No. 1, DSSSB was not answerable if disputes arose in respect of number of vacancies, category in which the same fall etc. which would be for the user department to deal with, it was answerable if disputes related to the issue of the selection process. Thus even the order dated 21.4.2006, did not put a fetter on the powers of the DSSSB with regard to the selection process undertaken by it.
39. The respondent No. 1 being the Selection Board, is responsible for laying down a process of shortlisting candidates. Merely because the user agency, namely, respondent No. 2 herein did not prescribe minimum qualifying marks in consultation with respondent No. 1, as directed in the case of Kuldeep Singh (supra) cannot be treated as a bar on the respondent No. 1 to decide as to what procedure was suitable for selecting the best candidates from amongst the applicants. The intention behind the first direction issued in Kuldeep Singh's case (supra) was to let all the aspirants know that minimum qualifying marks were being fixed for the purposes of selecting the candidates from various categories. The respondent No. 1 is justified in claiming that it is entitled to adopt the method of short listing to maintain a higher standard in selection so as to achieve good results of the students and better educational standards. There is no illegality on the part of the respondent No. 1 in prescribing minimum qualifying marks as it is based on a rational and objective criteria. Selecting the best candidates by prescribing minimum qualifying marks has a direct nexus with the objects sought to be achieved and hence there is no question of any violation of Articles 14 and 16 of the Constitution of India by the respondents.
40. This Court can also not lose sight of the fact that while examining the decision making process undertaken by the respondent No. 1, in prescribing minimum qualifying marks, it normally ought not to interfere in the criteria laid down merely because another decision would have been fairer or more justified, as long as the standards set by the respondent No. 1 are uniformly applied to all the candidates. In the case of Union of India and Ors. v. S. Vinodh Kumar and Ors. reported as , the Supreme Court while examining the decision of the Railway Administration not to lower the cut off marks while making recruitment for the post of "Gangman", for unfilled vacancies, observed as below:
Para 10: ...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 cut-off mark was fixed on a rational basis, no exception thereto can be taken.
Para 11: ...It is trite that it is for the employer or the expert body to determine the cut-off marks. The court while exercising its power of judicial review would not ordinarily intermeddle therewith. The jurisdiction of the court, in this behalf, is limited. The cut-off marks fixed will depend upon the importance of the subject for the post in question. It is permissible to fix different cut-off marks for different categories of candidates. [See Banking Service Recruitment Board, Madras v. V. Ramalingam and Ors. ].
(emphasis added) [Also refer: NCT of Delhi through the Department of Excise v. S.P. Khanna and Nilangshu Bhusan Basu v. Deb K. Sinha and Ors. ]. In the case of Nilangshu Bhusan Basu (supra), the Supreme Court held as below:
Para 7: In the absence of any rule to that effect, it would be an administrative function of the appointing/appropriate authority to take a decision as to which method should be adopted for recruitment on any particular post. It may depend on various factors relevant for the purpose e.g. status of the post, its responsibilities and job requirement, the suitable qualifications as well as the age as may be desirable may also be taken into consideration while making such an administrative decision. In this connection, on behalf of the appellant-the selected candidate-a decision report in State of A.P. v. V. Sadanandam AIR 1989 SC 2060 has been relied upon. It has been observed as, as also quoted in the impugned judgment: (SCC pp.583-84, para 17) We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for the judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive.
(emphasis added)
41. Thus apart from the Recruitment Rules prescribing the minimum eligible qualification, it is competent for the respondent No. 1, as a Selection Board, to prescribe the minimum qualifying marks and restrict the zone of selection to candidates with merit. Simply because the number of vacancies advertised could not be filled up by subscribing to the criteria laid down by way of prescribing minimum qualifying marks, will not amount to an illegality or exercise of arbitrariness on the part of the respondents for the reason that while it is implicit in the Recruitment Rules to consider every qualified candidate, as also in the equal opportunity right enshrined in Article 14 of the Constitution of India, screening a candidate by restricting the zone of selection cannot be held to be illegal and unconstitutional as long as there is rational formula carved out with the object of achieving higher standards of education and the said formula is applied uniformly to all, is not totally irrational, or tainted with malafides.
42. For the petitioners to contend that under the circumstances where the respondent No. 2 failed to prescribe minimum qualifying marks, respondent No. 1 was under an obligation to forward the names of all the candidates and it could not have on its own laid down any criteria, is thus untenable and liable to be rejected. This issue has also to be looked at from the larger perspective of the interest of the ultimate stakeholder, i.e., the students. The entire object of setting up a particular department as a specialist body to undertake the process of recruitment shall be set at naught if the contention of the petitioners to the effect that the respondent No. 1 is powerless to prescribe minimum qualifying marks, is accepted. In these days of massive unemployment and large scale applications made for the posts available, the said power vested in the respondent No. 1 has to be recognized as legitimate and it cannot be stated that it was inherently wrong on the part of the respondents to restrict the field of selection by prescribing a certain criteria. The petitioners having failed to establish that the selection process adopted by respondent No. 1 was perverse or showed any arbitrariness/malafides/violation of law/rules or gross irrationality, cannot be permitted to challenge the procedure adopted by the respondents for the purposes of selection of candidates, same having been applied unilaterally to all concerned (Refer Ashwani Kumar Singh v. U.P. Public Service Commission and Ors. ). In any case, as observed earlier, the case of Kuldeep Singh (supra), did not deal with the power of respondent No. 1 to fix minimum marks on its own in the absence of the same being specified by the user department.
43. In the absence of any arbitrariness, malafides, demonstrable violation of laws/ rules, the Courts in exercise of judicial review ought to refrain from probing deep into the recruitment process as any such attempt shall amount to substituting the opinion of an expert body, with its own. [Refer (1) M.P. Oil Extraction v. State of M.P. AIR 1998 SC 145, (2) Ataul Haque v. Govt. of NCT and Ors. 2001 III AD (Delhi) 159, (3) Tariq Islam v. Aligarh Muslim University 2002 (35) Labour I.C. 566, (4) Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs and Pharmaceuticals Ltd. ].
44. As regards the contention of the petitioners that since many of them were working on contract basis in the schools run by the respondent No. 2, it went on to show that they were neither incompetent nor unable to perform their duty and were thus entitled to be appointed as Assistant Teacher (Primary) in the respondent No. 2, the same is noted only to be rejected for the reason that as noticed above, this Court does not find any illegality, irrationality or infirmity on the part of the respondent No. 1 to lay down a criteria for scrutinizing the eligible candidates by fixing minimum qualifying marks in the examination. Merely because the petitioners were working on contract basis in the respondent No. 2 is not enough reason to circumvent the procedure for recruitment prescribed for filling up the posts in question.
45. The plea raised on behalf of the petitioners that the process adopted by the respondents was discriminatory in nature, has not been substantiated by demonstrating as to how fixing cut off marks worked discriminatorily against the petitioners. It is not the case of the petitioners that different cut off marks were adopted for one set of candidates as against the petitioners. It is the common case of the parties that a set criteria has been adopted by the respondent No. 1 for selecting each category of candidates for the posts in question. Merely because the petitioners were eligible to take the examination in question cannot be a ground to hold that they acquired a vested right of selection to the said posts and all vacant posts had to be filled up by the respondents. As held by the Supreme Court in the case of The Gujarat State Sales-Tax Non-Gazetted Employees' Association v. the State of Gujarat and Anr. reported as 1977 (1) SLR 452, though the recruitment rules may prescribe minimum eligibility qualification, it is competent for an appointing authority to prescribe some rational screening test by the adoption of method of interview or examination so as to restrict the zone of selection to candidates with merit.
46. Reference in this regard is also made to the judgment rendered by the Supreme Court in the case of Shankarsan Dash (supra) wherein the Court observed as under:
Para 7: It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha Neelima Shangla v. State of Haryana , or Jatendra Kumar v. State of Punjab .
Para 8 :In State of Haryana v. Subhash Chander Marwaha 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 35 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had "somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies". It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jatendra Kumar v. State of Punjab was turned down holding that it was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection....
47. Thus notwithstanding the number of vacancies and the availability of qualified candidates, it was open for the respondents not to fill up all the vacancies for a valid reason. Trying to maintain high standard of selection so as to zero in on the best talent available is a certainly a valid reason offered by the respondents. [Refer: State of Orissa and Ors. v. Bhikari Charan Khuntia and Ors. ].
48. Further, when the petitioners sat for the examination, they were fully aware of Clause 25 of the advertisement. However, they did not choose to challenge the said clause as illegal, arbitrary, or contrary to the directions given in the case of Kuldeep Singh (supra). Instead, the petitioners sat in the examination and only when they were not selected did they approach this Court by making a grievance that the examinations were held in violation of the directions given in the judgment. The principles of estoppel therefore come into play and the petitioners having taken their chances in the examination, knowing fully well the procedure laid down by the respondent No. 1, are not entitled to question the same. [Refer: (1) Om Prakash v. Akhilesh Kumar , (2) Munindra Kumar v. Rajiv Govil , (3)Union of India v. N. Chandrasekharan and Ors. , (4) Chandra Prakash Tiwari v. Shakuntala Shukla , (5) Rashmi Mishra v. M.P. Service Commission (2006) 12 SCC 724, (6) Union of India v. S. Vinodh Kumar .]
49. Reliance placed by the petitioners in the case of Raj Kumar (supra) is misplaced inasmuch as in the said case it was observed that the Government had committed glaring illegalities in the procedure as also in the method of selection and thus the principles of estoppel or acquiescence were held inapplicable to the facts of the case. However, in the present case, the petitioners have failed to demonstrate any such glaring illegalities committed on the part of the respondents, except for claiming that the respondents have violated the directions issued in the case of Kuldeep Singh (supra), which contention has already been discussed by this Court hereinabove and rejected.
50. The plea raised on behalf of the petitioners that the respondents refused to furnish the details of marks obtained by individual candidates, contrary to the directions issued in the case of Kuldeep Singh (supra), is not without merit. This Court does not find any substance in the defense taken by the respondent No. 1 that in view of the large number of applicants, the entire results could not be put on the internet and only the details of the successful candidates were put on their website. The mandate issued by the Court in the case of Kuldeep Singh (supra) was quite clear. The respondents were directed not only to put the list of successful candidates, but the entire list on the notice board as also on the internet so as to enable every candidate to gain knowledge of his standing in the merit list. However, part compliance of the aforesaid direction and/or failure on the part of the respondent No. 1 to display the entire result on the internet is not sufficient ground to scrap the complete examination process undertaken by the respondents, more so, when the results of all the petitioners were shown to them in the course of the present proceedings and it is not disputed by any of the petitioners that they or anyone of them obtained marks above the last selected candidate. For the said reason, the principles of natural justice stand satisfied and the violation, if any, thereof is not of such a magnitude as to negate the entire process of selection undertaken by the respondents.
51. Examining the relevant facts of the case in its complete perspective, the inevitable conclusion is that the petitioners cannot claim any vested right to appointment on the strength of the judgment rendered in the case of Kuldeep Singh (supra), where the Court was confronted with a different fact situation and issued directions in the said context. At the same time, this Court hastens to add that its observations made with regard to the judgment rendered in the case of Kuldeep Singh (supra), are in the context of the facts of the present cases in hand and ought not to be read or understood to mean that any of the directions issued in the aforesaid case have been sought to be diluted in any manner.
52. In the ultimate analysis, this Court cannot lose sight of the fact that when the interest of the petitioners is balanced against those of the students who are the ultimate stakeholders in the domain of education, the scales of justice ought to tilt in favor of the students, more so when in this constant tussle between the aspirants to vacant posts and the respondents, the students community which goes unrepresented and is reduced to a mute spectator of this ongoing struggle, is impacted the most to their disadvantage.
53. In these circumstances, the demand of the petitioners for scrapping the entire process of examination undertaken by the respondents for recruitment of Asstt. Teachers (Primary), pursuant to the impugned advertisement No. 1/2006, is turned down. Any such prayer if allowed, shall result in frustrating the directions passed in the public interest litigation petition WP(C) No. 1611/2001, wherein the respondent No. 2 MCD and Govt. of NCT of Delhi were directed to ensure that the process of identifying and filling up all vacancies should be completed by the month of April of each calender year, so that students are not made to suffer academically as also the directions given in CCP No. 370/2003. Considering that we are already in the month of November, 2007, it is high time that the process of notifying the vacancies and inviting applications allowed to be set into motion by the respondents during the pendency of the present proceedings, is permitted to culminate into making appointments to the post of Assistant Teachers (Primary) at the earliest, so that hopefully, they are in place by April 2008, the beginning of the next academic session.
54. In the aforesaid facts and circumstances, the writ petitions fail. The parties are however left to bear their own costs.