Delhi High Court
Kuldeep Kumar vs Delhi Subordinate Services Selection ... on 13 May, 2013
Author: V. Kameswar Rao
Bench: Pradeep Nandrajog, V.Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision May 13, 2013
+ W.P.(C) 3819/2012
KULDEEP KUMAR ..... Petitioner
Represented by: Mr.Sumit Kumar and Mr.Amit
Sharma, Advocates
versus
DELHI SUBORDINATE SERVICES SELECTION BOARD &
ANR. ...... Respondents
Represented by: Mr.Mirza Amir Baig, Advocate
for Mr.Anjum Javed, Advocate
for R-1
Mr.R.V Sinha, Advocate with
Mr.R.N Singh, Mr.A.S Singh,
Mr.Balendu Shekhar and
Ms.Namrata Sharma,
Advocates for R-2
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. The challenge in the writ petition is to the order passed by the Central Administrative Tribunal, Principal Bench, New Delhi dismissing Review Application No.89/2012.
2. At the outset, we may note that there is no challenge to the order dated December 14, 2012, passed by the Tribunal dismissing O.A No.680/2011.
3. At the asking of the user department i.e. MCD, the Delhi Subordinate W.P(C) No.3819/2012 Page 1 of 7 Services Selection Board (DSSSB) completed the selection process to fill up 2195 posts of Assistant Teacher (Primary) which included 421 posts for unreserved candidates and forwarded the select panel to MCD. Pertaining to the unreserved vacancies initially names of 246 candidates were sent resulting in 175 vacancies against which another list of 60 candidates was sent and thereby reducing the vacancies to 115. On February 02, 2004, MCD requested further list of 66 names to be sent because said number of candidates whose names were to be found in the list of 246 candidates had not joined. At that stage, the writ petitioner filed a writ petition drawing attention of this Court to the absurd manner in which the list of selected candidates were being forwarded. He pointed out that 421 posts were in the unreserved category and more than said number of candidates had qualified. He prayed that the entire list of successful candidates should be sent to the user department which should fill up the vacancies from the select panel ignoring those who though higher in the merit but had not responded to the letters offering appointment. Deciding the said writ petition, which was numbered as 5650-51/2004, vide decision dated February 18, 2005, inter- alia, it was directed as under:-
"It would also be a salutary practice 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. Coming back to the present Examination which was held on 27.10.2002 and in respect of which the Merit List was published on 27.12.2002, the outside limit could have been pegged at 45 or 60 days thereafter. It is essential that the public should know which is the date on which their candidature would lapse. If this date is indicated, persons falling within the 421st serial number in the Merit List would be fully aware that if they did not utilize or act upon their success in the Examination for actual employment, their W.P(C) No.3819/2012 Page 2 of 7 rights under that particular Examination would stand extinguished on that particular date. It would also enable persons who had not initially fallen within the cut-off number to be vigilant and pursue their employment, strictly in accordance with the Merit List, within the period which would logically and necessarily extend beyond the 45 or 60 days randomly indicated above. If this procedure is followed then no person who has appeared in the Examination would have any justiciable grievance.
The question requiring to be dealt with is whether it is open to the DSSSB to carry forward vacancies which have occurred in a particular Examination. It appears that about 90 persons who had come within the zone of consideration as contemplated by the DSSSB did not report for appointment. Are these 90 vacancies to be filled up in subsequent examinations? In my view, that would be unfair to persons who have come within the extended zone of consideration in that Examination. In the present case, the Municipal Corporation of Delhi has not taken the stand that the Merit List stood exhausted at Serial No. 421 and accordingly, it repeatedly asked the DSSSB to send further names of candidates from that Examination. In view of the analysis above, it would no longer be possible for the User Department to take a contrary stand, i.e., that persons who had not come within the initial zone of consideration would become ineligible for appointment, unless this is specifically mentioned in the Advertisement or Rules.
Counsel for the Petitioner draws my attention to Annexure-B to the Affidavit dated 14.02.2005 in which ten candidates have been granted appointment from the List pertaining to Examination-2002. Learned counsel for the Respondent clarifies that in consonance with the approach adopted by the DSSSB, these ten persons would fall within the original Merit List drawn up by them, i.e., Ms. Vibha Jain, Ms. Anjana Rani and Mr. Sunil Kumar had obtained higher marks than Ms. Ritu Garg who is at Serial No. 421.
These writ petitions are disposed of with the following directions:-W.P(C) No.3819/2012 Page 3 of 7
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 implement able.W.P(C) No.3819/2012 Page 4 of 7
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.
This writ petition is disposed of granting appointment to Petitioner No. 2 who is at Serial No. 459 in the Merit List thereby falling within admitted 66 vacancies. The DSSSB shall issue Letters to all those candidates from Serial No.425 to 491, subject to their eligibility. If the posts are not filled then Petitioner No. 1, shall, in the peculiar circumstances, be given employment, subject to his candidature ripening in his turn of merit. These Orders shall not operate retrospectively.
4. Petitioner filed O.A No.680/2011 before the Tribunal raising a grievance that the notified vacancies in the unreserved category remained unfilled and as a result the Mandamus issued by this Court on February 18, 2005 remained unsatisfied.
5. Before the Tribunal, the respondents admitted that all vacancies had not been filled up. But to defeat the claim of the petitioner, it was pleaded that persons higher up in the merit were available.
6. The Tribunal considered the O.A from two aspects i.e. one from the point of limitation and secondly on the merits of the case. In so far as limitation is concerned, the Tribunal's view was that the claim is a stale one; pertaining to the year 2005-06 and in so far as merits is concerned, held that since petitioner had obtained 82 marks and was at serial No.783 of the select panel i.e. more than 200 candidates having obtained marks above him were empanelled, petition could not be directed to be issued letter offering appointment.
7. We have heard the counsel for the parties.
W.P(C) No.3819/2012 Page 5 of 78. Suffice would it be to record that the claim of the petitioner is admittedly stale. We cannot overlook the fact that the advertisement was issued in the year 2002 and after the examination was held on October 27, 2002, the result was declared on December 20, 2002. Since the date W.P.C No.5650-51/2004 was decided on February 18, 2005, eight years have gone by and in the interregnum four further selections have taken place pertaining to the left over vacancies for the vacancy year 2002 and subsequent vacancy years.
9. It may be true that all notified vacancies for the year in question i.e. 2002 were not filled up, but that would not be to the prejudice of the petitioner because his merit position is at serial No.783.
10. We do concede that the DSSSB has been acting in an irrational manner and the result of irrationality is unfilled vacancies remaining partially filled and partially unfilled. We need not indicate the salutary practice which DSSSB should follow because order dated February 18, 2005 has already highlighted the same.
11. Since before us the original order passed by the Tribunal has not been challenged, we speak no further. But as regards the order impugned, wherein review has been declined, we note that the ground for seeking review was that the judgments relied upon by the counsel for the petitioners reported as 159 (2009) DLT 766 DB Surender Singh & Anr. Vs. DSSSB & Ors. and (2006) 11 SCC 464 Chairman, U.P. Jai Nigam & Anr. Vs. Jaswant Singh & Anr. were not considered by the Tribunal.
12. While dealing with the ground raised by the petitioners seeking review, the Tribunal has held as under:
"We are of the opinion that the fact that these two above mentioned judgments have not been referred to in the order W.P(C) No.3819/2012 Page 6 of 7 dated 14.12.2011 does not mean that they were not considered by the Tribunal before the order was pronounced. The order of the Delhi High Court in Surender Singh (supra) very clearly states that the direction in the matter is being issued "in the special facts and circumstances of the case and would not constitute a precedent." The order of the Hon'ble Supreme Court in U.P. Jai Nigam (supra) restricted the relief only to those who approached the Court in time, and is not applicable to the facts in this O.A. According to us, no case for review is made out and if it is the intention of the applicant in review to get the entire matter re-heard and re-decided, the forum for this lies elsewhere. Review Application is dismissed in circulation."
13. We have independently considered the two decisions and agree with the view taken by the Tribunal that no review of its decision was warranted for the reason that the decision of the Division Bench of this Court in Surender Singh's case (supra) clearly held that the direction was issued in the special facts and circumstances of the case and would not constitute a precedent. As regards the decision of the Supreme Court in Jaswant Singh's case (supra), the Supreme Court itself restricted the relief to only those who had approached the Court in time.
14. Accordingly, finding no merits, we dismiss the writ petition. But without any order as to costs.
(V.KAMESWAR RAO) JUDGE (PRADEEP NANDRAJOG) JUDGE MAY 13, 2013/km W.P(C) No.3819/2012 Page 7 of 7