Central Administrative Tribunal - Delhi
Rahul Singh Rathore vs Delhi Subordinate Services Selection ... on 3 February, 2023
1
Item No. 10 O.A. No. 3813/2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3813/2018
This the 3rdday of February, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Shri Rahul Singh Rathore, Group-B
S/o Shri Shatrughna Singh Rathore
Aged about 42 years
R/o RZ-412 B, Third Floor,
Street No.13, Tughlakabad Extn.,
New Delhi-110019.
...Applicant
(Through Advocate: Ms. Sangya Negi)
VERSUS
1. Delhi Subordinate Services Selection Board,
Through its Chairman,
FC-18, Institutional Area,
Karkardooma,
New Delhi.
2. Deputy Secretary, CC-II
Delhi Subordinate Services Selection Board,
Through its Chairman,
FC-18, Institutional Area,
Karkardooma,
New Delhi.
...Respondents
(Through Advocate: Shri Girish C. Jha)
2
Item No. 10 O.A. No. 3813/2018
ORDER (Oral)
Hon'ble Mrs. Pratima K. Gupta, Member (J) The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s):-
"i) allow the present application and set aside the result dated 20.09.2017;
ii) allow the present application and direct the respondent no.1 and 2 to select the applicant for the post of Post Graduate Teacher (English) (Male);
iii) allow the applicant service and seniority benefits if selected for the post of PGT English, as it would affect his future promotions in career;
iv) to grant any other appropriate relief as per the facts and circumstances of the case, besides the cost and expenses of the present litigation."
2. The brief facts that arise in the Original Application are:
Pursuant to an Advertisement No.02/2012, the Directorate of Education, Board (DSSSB) had notified 43 vacancies (UR-23, OBC-13, SC-07 including 01 OH and 01 VH) under Post Code 132/12 for the post of PGT (English) Male. The applicant participated in the said selection process. For Post Code 132/12, the respondents published Result Notice Nos.447 dated 17.10.2016, 524 dated 27.06.2017 and 543 dated 3 Item No. 10 O.A. No. 3813/2018 20.09.2017 wherein the result of 41 candidates were provisionally declared and the applicant‟s name did not figure and Respondent No.3 figures as selected candidate. It is seen that the applicant was kept as waitlist candidate-1 (one) in UR category.
The user Department vide letter dated 24.11.2017 informed about the ineligibility of Respondent No.3 namely, Shri Vikas Antil (subsequently deleted from array of parties) based on his educational qualification with the remarks that the B.Ed was done in 2016, i.e., after cut-off date and hence he does not fulfil the requirement of RRs. Accordingly, his candidature stood cancelled and intimated to Directorate of Education vide letter dated 28.05.2018.
In pursuance of the said cancellation, the applicant, being at Sl. No.1 in the waiting list, submitted a representation on 16.05.2018 to Respondent No.1 seeking appointment. Thereafter, the applicant received response dated 30.05.2018 from the respondents with the remarks that „the competent authority has held that as the result of the post of PGT (English) under Post Code 4 Item No. 10 O.A. No. 3813/2018 132/12 was declared on 17.10.2016 and the reserve panel proposed therewith has expired which was valid upto 16.10.2017, as such the Board is unable to nominate any candidate from the reserve panel presently‟.
The applicant once again submitted representation to Respondent No.2 on 04.06.2018, which was also rejected by the respondents. Aggrieved by the same, the applicant has filed the present O.A. In support of his claim, the learned counsel for the applicant submitted that the applicant‟s name appeared at Sl. No.1 in the waiting list since the candidature of Respondent No.3 was cancelled for the reason stated hereinabove, it was incumbent upon the respondents to offer him appointment. She adds that the period of one year of the waiting list is to be reckoned from the date of the last recommendation was made. She draws support from the Notification dated 13.06.2013 wherein it is clearly stipulated that the Board had to draw a reserve panel/waitlist upto the extent of 10% of the post notified, in addition to the number of candidates selected, and the 5 Item No. 10 O.A. No. 3813/2018 said panel would be valid for a period of one year from the date of declaration of result and the vacancies arising due to different reasons that would include non- acceptance of offer of appointment, non-joining of the candidates, candidates not found eligible etc. She further adds that since the user department informed the respondents about the ineligibility of Respondent No.3, only on 24.11.2017, validity of the panel would reckon from the said date. The respondents have incorrectly and arbitrarily contended that since the tenure of the panel is valid for a period of one year, from the date of declaration of the first result, i.e., 17.10.2016 and thereby denying the offer of appointment to the applicant. She submits that purpose of preparing the waiting panel would only be meaningful, against the vacancies that remain unfilled on account of reasons that find mention in the notification dated 13.06.2013. The applicant cannot be deprived of the offer of appointment for the reason that the vacancy so arise after a period of one year, as reckoned from the date of first recommendation, and once the applicant‟s name appearing at Sl. No.1 in the waiting list, the respondents cannot be denied him appointment and the 6 Item No. 10 O.A. No. 3813/2018 vacancy so created after cancellation of Respondent No.3 should, in fact, be passed on to the applicant. Learned counsel for the applicant relies on the judgment rendered by the Hon‟ble Apex Court in the case of Sheo Shyam and Ors. vs. State of U.P. and Ors. (2005) 10 SCC 314, wherein it has been held that in absence of any statutory rules, the period of validity of panel would be reckoned from the last date of recommendation.
3. Learned counsel for the respondents, on the other hand, vehemently opposes the O.A. and submits that though it is not disputed that the applicant‟s name figures at Sl. No.1 in the waiting list, however, since the first recommendation was notified on 17.10.2016 strictly complying with the order dated 13.06.2013, the one year period expired on 16.10.2017 on which date the reserve panel notified stood also expired. He adds that the candidature of Respondent No.3 stood cancelled only on 28.05.2018, the applicant could not be granted offer of appointment. He further submits that the unfilled vacancies have since been notified in subsequent selection. He draws support from the judgment of the 7 Item No. 10 O.A. No. 3813/2018 Hon‟ble Apex Court in the case of Uttar Pradesh Public Service Commission vs. Surendra Kumar &Ors. (Civil Appeal No.11149 of 2018) decided on 22.11.2018, wherein it has been held that period of wait list is only for a period of one year and such period would be computed from the date of initial recommendation.
4. Heard the learned counsel for the parties.
5. In order to decide this O.A., we may reiterate that admittedly the applicant applied for the post of PGT (English) Male and his name appeared at Sl. No.1 in the wait list. The respondents have declared their result on three different dates i.e. 17.10.2016, 27.06.2016 and finally on 20.09.2017. The candidature of one of the candidates stood cancelled on 28.05.2018, thereby leaving one vacancy unfilled on that date.
6. The above facts are examined in light of DoPT‟s OM dated 13.06.2000 where directions have been given to form reserve panel of candidates for appointment in the eventuality a candidate does not join. The OM dated 13.06.2000 reads as under:-
8Item No. 10 O.A. No. 3813/2018
No.41019/18/97-Estt(B) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi, dated 13th June, 2000 OFFICE MEMORANDUM Sub: Operation of reserve panels prepared on the basis of selections made by UPSC, Staff Selection Commission, other recruiting agencies and where selections are made by Ministries/Department etc. - acceptance of recommendations of Fifth Central Pay Commission - regarding.
.........
The undersigned is directed to invite attention to this Department's Office Memorandum quoted in the margin and to say that in terms of these Office Memorandum, it was informed that the Union Public Service Commission, wherever possible, maintains a reserve panel of candidates found suitable on the basis of selections made by them for appointment on direct recruitment, transfer on deputation, transfer basis and the reserve panel is operated by the UPSC on a request received from the Ministry/Department concerned when the candidate recommended by the UPSC either does not join, thereby causing a replacement vacancy or he joins but resigns or dies within six months of his joining. Ministries/ Departments were advised that whenever such a contingency arises, they should first approach the UPSC for nomination of a candidate from the reserve panel, if any. The recruitment process be treated as completed only after hearing from the UPSC and the Ministry/Department concerned may resort to any alternative method of recruitment to fill up the vacancy thereafter.
2.The Fifth Central Pay Commission, in para 17.11 of its Report, has recommended that with a view to reduce delay in filling up of the posts, vacancies resulting from resignation or death of an incumbent within one year of his appointment should be filled immediately by the candidate from the reserve panel, if a fresh panel is not available by then. Such a vacancy should not be treated as a fresh vacancy. This recommendation has been examined in consultation with the UPSC and it has been decided that in future, where a selection has been made through UPSC, a request for nomination from the reserve list, if any, may be made to the UPSC in the event of occurrence of a vacancy caused by non-joining of the candidate within the stipulated time allowed for joining the post or where a candidate joins but he resigns or dies within a period of one year from the date of his joining, if a fresh panel is not available by then. Such a vacancy should not be treated as fresh vacancy.
3. It has also been decided that where selections for posts under the Central Government are made through other recruiting agencies such as Staff Selection Commission or by the Ministries/Departments directly and the 9 Item No. 10 O.A. No. 3813/2018 reserve panels are similarly prepared, the procedure for operation of reserve panels maintained by UPSC as described in para 2 above will also be applicable for the reserve panels maintained by the other recruiting agencies/authorities."
7. The Hon‟ble High Court of Delhi in the case titled Kuldeep Singh vs DSSSB reported as 118 (2005) Delhi Law Times 101 had held as under :
"These writ petitions raise an important question which will have an impact on every citizen of India aspiring for Government appointment through the aegis of the Delhi Subordinate Services Selection Board (in brief „DSSSB‟). In the present case we are concerned with the Advertisement carried in Sundry National Dailies in respect of the Miscellaneous Posts-2002 in which the User/Requisitioning Department is the Municipal Corporation of Delhi. The Advertisement discloses that there were 421 vacancies to the post of Assistant Teacher (Primary) in the Unreserved (UR) category. The petitioners before the Court belong to this category. The Examinations were conducted on 27.10.2002. A „Merit List‟ which I consider to be more in the nature of the Examination Result was thereupon prepared by the DSSSB in respect of each and every candidate who had appeared in that Examination. The Advertisement did not contain any stipulation pertaining to the minimum qualifying marks that should be obtained by every aspirant. It did not also contain any clause indicating the maximum time limit for exhausting the vacancies envisaged in that Examination.
9. These writ petitions are disposed of with 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.10 Item No. 10 O.A. No. 3813/2018
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."
8. The High Court of Delhi in the case of The Chairman, Delhi Subordinate Service Selection Board & Anr. Vs. Ms. Rajni & Ors. 2013 (2) SCT 823 decided on 05.03.2013 observed and held as under:-
"3. It is settled law that no candidate has a vested right to ensure that all vacant posts are filled up, whether advertised or not; but not to fill up the posts has to be justified by a good reason. It does not subserve public interest that sanctioned posts are not filled up.
4 & 5 xxx xxx 11 Item No. 10 O.A. No. 3813/2018
6. The problem can be overcome by a simple application of mind. Experience shows that between 5% to up to 20% posts remain vacant at each selection process. Experience shows that where number of posts advertised are less, the posts which remain vacant are proportionately less and the proportion in terms of percentage increases with the number of posts increasing. Thus, apart from the select panel having names equivalent to the number of vacancies, in order of merit entered, a reserve list of between 5% to up to 20% of the posts notified could be maintained and used as a reservoir.
7. Since every endeavour has to be made to fill up vacant posts and not filling vacant posts being an exception, to be justified on a reason, we quash the directive dated July 04, 2008 and direct that henceforward the Delhi Subordinate Services Selection Board shall, apart from drawing a select panel would draw a reserve list with the life of the reserve panel being six months and within the said time, upon such empanelled candidates as per the select list who ultimately are either not issued letter offering appointment or do not accept the same, the candidates from the reserve list, in order of descending merit, would be issued letters offering appointment."
(Emphasis supplied)
9. The DSSSB issued the Notification dated 13.06.2013 whereby the DSSSB has decided to draw a reserve panel/waiting list in compliance of Judgment dated 5.3.2013. The said notification reads as under:
NOTIFICATION
1. The DSSSB has decided to draw a reserve panel/waiting list upto the extent of 10% of the posts notified in addition to the number of candidates selected as per the notified vacancies.
2. The reserve panel/waiting list shall be valid for a period of 1 years from the date of declaration of result and the vacancies arising due to non-acceptance of the offer of appointment not joining the post after acceptance of appointment the candidates not found eligible for appointment or due to resignation of selected candidates within one year of joining the post, shall be filled up from this reserve panel/waiting list.12 Item No. 10 O.A. No. 3813/2018
3. This issue in accordance with the approval of Govt. of Delhi as conveyed by Joint Secretary (Services III) Deptt. vide letter No. F.16(13)/DSSSB/2007-S. III/1635 dated 31.05.2013 .
10. The High Court of Delhi in WP No.5236/2012 titled as Delhi Subordinate Service Selection Board & Anr.
Vs. Lokesh Kumar vide Judgment dated 7.3.2013 observed and held as under:-
"3. The user department i.e. Delhi Jal Board sent a requisition to the writ petitioner Delhi Subordinate Services Selection Board to issue an advertisement, complete the selection process and forward names to fill up two vacant posts of Assistant Chemists, one each reserved for a SC and an OBC candidate.
4. Proceeding to issue the advertisement and conducting a written examination on December 19, 2004 the result was declared on April 01, 2005, and since we are concerned with the vacancy reserved for the OBC candidate, we note that the Selection Board ranked one Pratap Singh Yadav who had secured 37.75/80 marks at number „1‟. The first respondent, an OBC candidate, secured 35/80 marks and was at serial number „2‟, but since only one vacancy for an OBC candidate was notified, the Selection Board scrutinized the various forms and certificates submitted by Pratap Singh Yadav to justify he being eligible for the post as an OBC candidate; the papers were found wanting and Pratap Singh Yadav was declared as an ineligible candidate. Surprisingly, the Selection Board forwarded nobody‟s name to the user department i.e. Delhi Jal Board and on the contrary informed that the selection had lapsed. The vacancy was notified by the Selection Board to the Delhi Jal Board as „Not filled‟.
5. Reason and logic demands that where an ineligible person is permitted to compete at a competitive examination and is at number „1‟ for the only post, but upon realization that he was ineligible, the placement in the select list at the serial number in question has to be removed resulting in the next candidate moving up the ladder. On the facts of the instant case this would mean that respondent No.1 would be entitled to be treated as candidate at serial number „1‟ of the panel.13 Item No. 10 O.A. No. 3813/2018
6-10 xxxxxxx
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.14 Item No. 10 O.A. No. 3813/2018
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."
11. The High Court of Delhi in WP No.11739/16 titled as UOI Vs. Shrey Bajaj vide Judgment dated 16.12.2016 (SLP No.7849/2017 filed against Judgment dated 16.12.2016 dismissed on 4.5.2017) observed and held as under:-
"7. We agree with the findings recorded by the Tribunal that the Staff Selection Commission should have prepared a reserve panel/waiting list. The Tribunal was justified and correct in directing the Commissioner of Police to prepare a list of unfilled vacancies relating to the 2013 selection and forward the same to the Staff Selection Commission.
8. It is normal and obvious that some of the selected candidates may not join or need not be appointed. We do not see any reason or ground forthcoming to explain why the Staff Selection Commission had not prepared a waiting list or panel.
11. In Shankarsan Dash v. Union Of India (1991) 3 SCC 47, it has been observed that successful candidates, even if there are vacancies, do not acquire any indefeasible right to appointment, unless relevant recruitment rules, so mandate. They are only to be considered for appointment, but at the same time appointment cannot be denied arbitrarily and whimsically. In State of Jammu & Kashmir v. Satpal (2013) 11 SCC 737, a candidate on the waitlist was not appointed and was successful before the High Court. The Supreme Court observed that the waitlist was valid for a period of one year and the case in hand was an illustration of denial of a legitimate claim of an innocent citizen. The selected candidate higher up in the merit list had not joined despite the offer of appointment, and in such situation the respondent therein should be offered appointment against the post. It was elucidated that the waitlist would operate only after recruitment was completed for a specified post and when the offer of appointment has not been accepted, allowing room to the appointing authority to fill up the 15 Item No. 10 O.A. No. 3813/2018 vacancy from the waitlist. The Supreme Court observed that this ratio or principle would apply when there was no administrative rule or instructions for filling up the vacancies from the waiting list. The said offer of appointment (to a „waitlisted‟ candidate) could only be made if the candidate had obtained a rank which comes within the range of selection and not otherwise. Future vacancies which were not notified or included in the advertisement cannot be filled up by appointing candidates in the waitlist.
12. In Manoj Manu &Anr. v. Union of India &Ors. (2013) 12 SCC 171, the Supreme Court visualized two situations. Situation (A) was where candidates had initially joined but had subsequently resigned or had quit or were promoted, thus resulting in creation of vacancy again; and situation (B) arose where some of the recommended candidates do not join at all. In situation (A) the recruiting authority may be justified in not forwarding the names from the reserved / supplementary list, as there is culmination of the recruitment process with exhaustion of notified vacancies, however, in situation (B) non-forwarding the names from the reserved or waiting list may not be justified, especially when there was a specific requisition from the appointing authority. The argument of the UPSC that there was culmination of the process with exhaustion of notified vacancies in situation (B) would not be acceptable. This Rule is subject to the right of the department concerned to ascertain and determine whether or not to fill up all or any vacancy, a discretion which can be challenged if it is irrational or arbitrary. A decision not to fill up posts or vacancies must be for valid reasons and based on sound, rational and conscious application of mind.
13. In Manoj Manu (supra), reference was made to Sandeep Singh v. State of Haryana &Anr. (2002) 10 SCC 549 and Virender S. Hooda v. State of Haryana (1999) 3 SCC 696, and it was observed:
"17. This Court in Sandeep Singh v. State of Haryana &Anr.(2002) 10 SCC 549 commended that the vacancies available should be filled up unless there is any statutory embargo for the same.
In Virender S. Hooda & Ors.v. State of Haryana & Anr. AIR 1999 SC 1701, 12 posts for direct recruitment were available when the advertisement for recruitment was made which was held in the year 1991. Some of the selected candidates did not join in this batch almost similar to the present case, the Court held that the appellants case ought to have been considered when some of the candidates for reasons of the non- appointment of some of the candidates and they ought 16 Item No. 10 O.A. No. 3813/2018 to have been appointed if they come within the range of selection."
Conscious of the problem that waiting lists of eligible and suitable candidates may not be maintained, and this results in delays in appointment etc., the Department of Personnel and Training has issued Memorandum No.41019/18/97- Estt.(B) dated 13th June, 2000. The Memorandum records that the UPSC, wherever possible, should maintain a reserve panel of candidates found suitable on the basis of selection made in the cases of direct recruit, etc. These candidates on the wait list would be recommended by the UPSC when the selected candidate does not join or in case he resigns or dies within six months of his joining. The Ministries/ Department were advised that whenever such a contingency arises, they should first approach the UPSC for nomination of a candidate from the reserve panel, if any, and only thereafter resort to an alternative method of recruitment. The OM also referred to the 5th Central Pay Commission‟s recommendation (in Paragraph 17.11 of its Report) to reduce delays in filling up of posts or vacancies in consultation with the UPSC. It was decided that whenever selection was made through the UPSC a request for nomination from the reserve list would be made in the event or occurrence of vacancy caused by non-joining or where a candidate joins but resigns or dies within one year from their date of joining. Such vacancy would not be treated as a fresh vacancy. Pertinently it was also observed that the same principle would apply when selections are made for the post through other recruiting agency such as Staff Selection Commission.
12. Candidates who appeared for selection do not have any right to claim appointment, but they must be considered for appointment in accordance with law. In the present case, the cut off merit list was restricted to the number of posts as advertised. This is obviously irrational and, therefore, would offend the OM and decisions quoted above, for no ground or reason is forthcoming not to have a panel or waiting list. The inaction and failure would be arbitrary and denies the first respondent‟s right of consideration. This is not fair and just to the candidates who had appeared in the selection, had qualified, and should have been appointed when the advertised vacancies were not filled but for no reserve/wait list.
15. Learned counsel for the petitioner submits that unfilled vacancies, which arose due to cancellation of candidature, non-appointment, etc. in 2013 recruitment, were cancelled and carried forward to the recruitment/exam in 2016. Respondent No.2- the Commissioner of Police has not challenged the order of the Tribunal. We would not accept 17 Item No. 10 O.A. No. 3813/2018 this contention to quash the impugned order. The petitioner was wrong in not making a reserve/waiting list/panel. The respondent No. 1 who had qualified, should not suffer for the said failure and default. Of course selection of the first respondent would depend upon the number of unfilled vacancies and number of candidates between the last selected candidate and the first respondent. The stand of the second respondent before the Tribunal was that the 2013 selection was to fill up 330 vacancies of Sub-Inspectors (Executive) in the Delhi Police through direct recruitment. The Delhi Police had issued offers of appointment to the candidates recommended by the Staff Selection Commission after completion of the selection process. In the present case the first respondent had not been recommended by the Staff Selection Commission. Furthermore, the Staff Selection Commission had not prepared the panel (waiting) list for selection against cancellation of candidature in the main list. It is in this context that the letter of the second respondent- Delhi Police dated 10.08.2016 is relevant and has been referred to. Thus, the second respondent- the Delhi Police, we believe, in principle does not have an objection.
16. With the aforesaid observation and directions, we dismiss the present writ petition. We clarify that the respondent No.1 would be eligible for consideration, if there were unfilled OBC category Sub-Inspector (Executive) posts in the Delhi Police and on the basis of marks obtained by him, as per merit, he was entitled to consideration. The discretion whether or not to appoint, is with the Delhi Police, which we accept and believe would be exercised as per, and in accordance with, law.
17. The Staff Selection Commission must take into notice the ratio and directions of the Division Bench of the Delhi High Court in the case of M. S. Rajni (Supra), which are salutary and merited. Had due notice and consideration to the ratio been given, this controversy and litigation would have been avoided."
12. The High Court of Delhi in WP No.5211/2022 titled as Shubhash Chhilar. Vs. UOI vide Judgment dated 21.12.2022 observed with respect to Judgment in case of DSSSB vs. Rajni and OM dated 13.6.2000 as under:- 18 Item No. 10 O.A. No. 3813/2018
"29. This Court is in consensus with the view expressed by the Coordinate Bench of this Court in The Chairman, Delhi Subordinate Service Selection Board &Anr. (Supra) that when respondents commence the process of selection for different posts on large scale, as to why provisions are not being made to draw wait list/ select panel to fill up the unfilled vacancies. We are also in agreement with the plea of respondents that appointment process consists of multiple rounds of selection which is a time taking process. While accepting this plea, it would not be misplaced to state that reserve panel/ wait lists are drawn by connected petitions the respondents to fill the unfilled vacancies, so that rollover of unfilled vacancies to the next appointment circle saves the time and money spent by the Government agencies. In the eventuality of there-being no wait list/ reserve panel, the appointment should be made from the pending list on the basis of merit and category.
30. In Ravi Raj and Ors. Vs. Union of India and Anr. 2022 SCC OnLine Del 1849 a Coordinate Bench of this Court dealt with a case wherein petitioners had applied for recruitment in Combine Higher Secondary Level Examination conducted by the Staff Selection Commission and had approached this Court with direction to respondents to prepare a reserve panel, had directed the respondents to maintain a reserve panel in terms of OM dated 13.06.2000 besides other memorandums of preceding dates.
33. On application of the afore-noted decisions to the facts of the petitions in hand, we find that it would not only be in favour of meritorious candidates to get appointments against the unfilled seats, due to non- joining of candidates as well as left-over vacancies; but also in the interest of respondents to prevent them to undergo an exhausting and laborious recruitment process of vacancies pertaining to the year 2016 and 2018. It has already been held that mere selection does not give an indefeasible right to a candidate for appointment; however, it has also been held that if the posts advertised are lying vacant, appointments can be made through wait/panel list and in the absence of panel list/ wait list, any seat lying vacant due to non-joining of a candidate or leftover vacancy, can also be filled from candidates who meet the selection criteria."
13. In Dinesh Kumar Kashyap and Others vs. South East Central Railway and Others, (2019) 12 SCC 798 19 Item No. 10 O.A. No. 3813/2018 decided on 27.11.2019, the Supreme Court has held inter-alia as under:
"....
6. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination, etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of SECR.
.....
7. On behalf of SECR it has been contended that before calling for replacement candidates the CPO was to satisfy himself that the procedure for cancellation of the order of appointment of the original empanelled candidates has been strictly followed. Which was not done, and the appellants could not be appointed. This argument holds no merit. There is no indication in the pleadings that the vacancies were not to be filled up. If an official of Respondent 1 fails to do his duty the appellants cannot suffer for the same. They are not at fault.
8.On behalf of the respondents it was urged before us that after the selection process in question two more selection processes were started in 2012 and 2013. Resultantly, three recruitment cycles were running concurrently and, therefore, the vacancies were filled up in the subsequent selections. This argument deserves to be rejected since it was not even raised before the 20 Item No. 10 O.A. No. 3813/2018 Tribunal. Furthermore, the rights of the appellants who had appeared in the selection pursuant to the notification of 2010 could not be taken away by the selection processes started much later. They cannot be made to suffer for the delays on the part of SECR.
9.The fact that three simultaneous selection processes were undertaken, itself proves that Respondent 1 wanted to fill up all the posts and did not want any vacancies to be left unfilled. This negates the plea of Respondent 1 that it was not necessary to fill up the vacant posts.
10. It has been urged before us that the validity of the panel was only for two years and since the last merit list was published for March 2014, validity of the list has expired in March 2016. This submission is only to be rejected. The appellants herein who approached CAT and the High Court with promptitude cannot suffer only because the matter was pending in Court."
(Emphasis supplied)
14. The learned counsel for respondents has contended that there was no law for maintaining the reserve panel and to offer appointment from the reserve panel when the recruitment took place and that the O.A. is barred by limitation.
15. We find both the contentions raised by the respondents‟ counsel untenable in law since the respondents were bound to follow the OM dated 13.6.2000 issued by the DOPT and detailed procedure mandated by the Hon‟ble High Court of Delhi in the case titled Kuldeep Singh vs. DSSSB (supra). This is what 21 Item No. 10 O.A. No. 3813/2018 was available even on the date of recruitment. However, admittedly the same has not been followed in the present case.
16. It is seen that the judgment of the Hon‟ble Apex Court in the case of Uttar Pradesh Public Service Commission vs. Surendra Kumar &Ors. relied upon by the respondents that the same is distinguishable and not applicable to the facts of the case as well as law applicable. The Hon‟ble Apex Court‟s judgment was based on instructions issued by Govt. of Uttar Pradesh categorically providing validity of waitlist of one year to be counted from date of first result, whereas requisition to operate the waitlist panel was sent after 2 years and 11 months. However, there is no such instruction in the present case. More so, the case relates to UP State Services whereas the present case is governed by the DoPT OM reproduced hereinabove.
17. The contention of the respondents that the life/validity of the reserve panel is only one year from the date of publication of the result. Therefore, the reserve panel cannot be operated upon after expiry of one year. 22 Item No. 10 O.A. No. 3813/2018
18. This contention of the respondents is devoid of any merit since the candidature of the original respondent No.3 came to be cancelled only on 28.5.2018 by which date even the life of Original Select List had expired since the life of Select List cannot be more than that of Reserve Panel if the life of Reserve List is accepted to be one year from the date of result. Therefore, there was no need to cancel his candidature as he could not have been allowed to join as more than one year had already expired.
19. The operation of "Reserve/Waiting List" comes into operation after the Select List stands exhausted by appointing them or canceling their candidature or their candidature is deemed cancelled for non-joining. Therefore, it is held that life of the "Reserve List" will only start after the "Select List" is exhausted. In view of this conclusion, it is clear that that the respondents are wrong in saying that the life of Reserve List has expired even before it came into operation.
20. The respondents cannot be allowed to frustrate the claim of the applicant when they themselves have not followed the mandatory law applicable to the recruitment 23 Item No. 10 O.A. No. 3813/2018 process. Moreover, it is seen that the respondents have cancelled the candidature of Respondent No.3 was on 28.05.2018. The applicant cannot be made to suffer due to delay caused by the respondents in exhausting the Original Select Panel and thereafter putting the Waiting List in operation.
21. For the reasons stated and dealt with exhaustively hereinabove, the O.A. is allowed. The impugned order dated 20.09.2017 is quashed and set aside. DSSSB is directed to forward the dossier of the applicant to the user department within one month from the date of receipt of this order, who may verify the same and if found suitable and eligible after verification of such credentials, he may be offered appointment within two month thereafter. The applicant shall not be entitled to any consequential benefits except notional seniority and notional fixation of pay as per law. No costs.
(Pratima K. Gupta) (Tarun Shridhar)
Member (J) Member (A)
cc.