Central Administrative Tribunal - Delhi
Kuldeep Singh vs Delhi Subordinate Services Selection ... on 30 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA 04/2011 With TA05/2011 NEW DELHI THIS THE 30TH DAY OF SEPTEMBER, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) TA 04/2011 1. Kuldeep Singh S/o Sh. Balbir Singh, R/o C/o Shri Baljit Verma, House No. 4/15, Gali No.1, Shankar Garden Line Par, Bahadurgarh, Distt. Jhajjar Haryana. 2. Surender Kumar, S/o Sh. Giani Ram, R/o 190/34, Janta Colony, Near Vidya Sagar Hospital, Rohtak-124001 Haryana. 3. Surender Kumar, S/o Sh. Sewa Ram, R/o House No. 551/34, Janta Colony, Circular Road, Rohtak, Near Raj Dharam Kata, Haryana. 4. Anil Kumar, S/o Hoshiar Singh, R/o PO Mundahura, Tehsil Matan District Jhajhar, Haryana. Applicants. (By Advocate Shri A.K. Misra and Shri M.K. Bhardwaj) Versus 1. Delhi Subordinate Services Selection Board, U.T.C.S. Building, 3rd Floor, Behind Karkardooma Court Complex, Vishwas Nagar, Shahdara, Delhi-110032. 2. Municipal Corporation of Delhi Through the Commissioner, Town Hall, Chandni Chowk, Delhi-110006. Respondents. (By Advocate Shri Vijay Pandita for Respondent No. 1, Shri Duli Chand for Respondent No. 2) TA05/2011 Ajit Singh, S/o late Sh. Randhir Singh, H.No. 14, Pocket No. 08, Sector-24, Rohini, Delhi-110085. Applicant. (By Advocate Shri A.K. Misra and Shri M.K. Bhardwaj) Versus 1. Delhi Subordinate Services Selection Board, 3rd Floor, UTCS Building, Vishwas Nagar, Shahdara, Delhi-110032. 2. The Municipal Corporation of Delhi Town Hall, Delhi Through the Commissioner. 3. Union of India, through the Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, North Block, New Delhi-110001. Respondents. (By Advocate Shri Vijay Pandita for Respondent No. 1, Shri Duli Chand for Respondent No. 2). ORDER
Mr. G. George Paracken:
Both these TAs were filed as Writ Petitions (WP(C) Nos.16566-69 of 2006 and 16868-70 of 2006 before the Honble High Court of Delhi and they have been transferred to this Tribunal on conferment of jurisdiction with regard to the office of the respondents with it.
2. The issue raised in both these TAs is whether it is permissible under law to fix cut off marks for selection if no such condition has been prescribed in the advertisement. The reliefs sought in TA 05/2011 are reproduced here which are as under:
(a) Direct the respondents to produce the records relating to the petitioners in recruitment process relating to the advertisement No. 010/2005 in respect of the Teachers (Primary), Municipal Corporation of Delhi; and
(b) To issue a writ or direction in the nature of mandamus directing the Respondent No. 1 to consider the case of the petitioners against the remaining vacancies even by relaxing the criteria, if necessary; and
(c) To direct the Respondent No. 1 to publish result for all the vacancies and fill up all the vacancies mentioned in advertisement No. 010/2005.
3. During the pendency of these cases before the High Court itself, the respondents themselves have granted relief sought for, to the first and second applicants in TA 05/2011, namely, Shri Abinash Chandra Rai and Shri Shrish Singh and on the basis of the request made on their behalf, their names were deleted from the array of parties, vide orders dated 18.12.2007 and 21.11.2008 respectively.
4. The first respondent in both these cases, namely, Delhi Subordinate Services Selection Board (`DSSSB for short) has issued an advertisement in the Newspaper and Employment News on 06.01.2005 inviting applications for several posts. The applicants were candidates for the posts of Assistant Teacher (Primary) having Post Code No. 0347 and the number of posts was 1813, out of which 990 posts were earmarked for unreserved categories, 294 posts for SC categories, 529 posts for OBC categories. They also include 208 posts for Ex-servicemen. All the applicants in these O.As are Ex-servicemen. The examination process for the aforesaid posts of Assistant Teacher (Primary) was scheduled on 24.04.2005. All the applicants have been issued with Roll Nos. They appeared in the test as per Schedule. In terms of the direction of DSSSB issued vide their letter dated 14.10.2005, the applicants have submitted the relevant documents including discharge certificate. Thereafter, vide their subsequent letter dated 07.09.2006, the DSSSB has announced the results of only 22 candidates belonging to the Ex-servicemen category out of the 208 posts advertised. When the applicants came to know that their names have not been included in the list of qualified persons, they made individual representations on 12.09.2006. According to them, they fulfil the eligibility criteria for appointment to the post of Assistant Teacher (Primary) and when 208 posts were available, there was no reason for the DSSSB to limit the selection to only 22 candidates. As there was no response from the DSSSB, they have approached the Honble High Court with the present writ petitions which have since been transferred to this Tribunal.
5. According to the reply filed by the DSSSB, all the applicants fulfil the eligibility criteria for appointment as Assistant Teacher (Primary) in terms of the aforesaid advertisement. But they were not selected due to their poor performance in the examination. The cut off marks out of the total of 280 marks was 80 for OBC category and 70 for SC and ex-servicemen category. As only 22 Ex-servicemen have secured the cut of marks or above, others have not been selected. The last person selected got 72 marks and the selection process was also closed. The user department, namely, the MCD was also informed accordingly.
6. The learned counsel for the applicant in TA 04/2011 Shri A.K. Mishra has challenged the aforesaid action of the DSSSB as arbitrary and illegal. His main ground of challenge is that the DSSSB has no authority or power to fix the cut off marks after the advertisement has been issued by them. The other learned counsel for the applicants in TA 05/2011 Shri M.K. Bhardwaj has also added that all the applicants are having more than 20 years of experience in teaching line and their experience itself is sufficient for them to be appointed as Assistant Teacher (Primary).
7. In this regard, the learned counsel for the applicant in TA 04/2011 Shri A.K. Mishra has relied upon the following judgments:
(i) Kuldeep Singh & Anr. Vs. DSSSB & Anr. (118 (2005) DLT 101;
(ii) State of Punjab & Ors. Vs. Manjit Singh & Ors. (2003 (11) SCC 559;
(iii) Sansar Chand Atri Vs. State of Punjab & Anr. (2002 (4) SCC 154;
8. According to the learned counsel, as held by the Delhi High Court in Kuldeep Singhs case (supra) and the Apex Court in Manjit Singhs case (supra), in the absence of any provision in the rules or stipulation in the advertisement, putting any qualifying eligibility criteria in the test is arbitrary and discriminatory and, therefore, violative of Articles 14, 16 and 21 of the Constitution. Similar is the case in Sansar Chand Atris case (supra).
9. In Kuldeep Singhs case (supra), a Single Judge of the High Court was considering a similar advertisement issued by the DSSSB for the post of Assistant Teacher (Primary). The advertisement did not contain any stipulations pertaining to the minimum qualifying marks that should be obtained by the candidates. However, the DSSSB had drawn a line after 421st candidate who obtained 86 marks as the cut of marks as there were so many vacancies. The MCD which is the user department has increased the number of vacancies by another 90. The High Court has held as under:
4. In my view, it would not be possible to foreclose who would fall within the zone of consideration until all 421 posts are duly filled up especially where a minimum qualifying mark is not specified. It may be possible that 30 persons between 1 to 421 are no longer desirous of taking employment. The resultant effect is that persons up to 451 would become eligible for consideration. It may again be possible that 10 persons would be found to be ineligible due to discrepancy in their educational qualifications. The result would be that persons up to 461, therefore, would fall within the zone of consideration. These are only random figures taken by me.
7. 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.
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.
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 s(sic) and 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.
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.
10. 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.
10. In Manjit Singhs case (supra), the main question considered by the Apex Court was as to whether it was competent for the Punjab Public Service Commission to resort to screening test with a view to shortlist the number of candidates to bring it to the ratio of three to five candidates per vacancy and further, whether keeping in view the efficiency required for the services in respect of which selection and appointments was to be made, could a written test be held to fix some minimum cut off marks, where process of selection was by interview of eligible candidates belonging to reserve category. Finally, the Apex Court concluded as under:
9. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than required number of candidates may obtain marks above the cut off marks say for example out of 10,000 if 8,000 or 6,000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so any candidate who is otherwise eligible up to the 500th position whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut off marks.
10. In the case in hand, it was not for the Commission to have fixed any cut off marks in respect of reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have the up to the mark merit, as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Art. 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant-Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview.
11. The learned counsel for the applicant in TA 05/2011, Shri M.K. Bhardwaj, in addition to the aforesaid judgments, has also relied upon the judgments in Himani Malhotra Vs. High Court of Delhi (2008 (7) SCC 11), OA 2299/2009 Shri Ram Kanwar Singh Vs. Govt. of NCT of Delhi and Ors., OA 2466/2010 Ex-Subedar Rajinder Singh Vs. Govt. of NCT of Delhi & Ors.
12. In Himani Malhotras case (supra), the Apex Court has held as under:
14 It is an admitted position that at the beginning of the selection process, no minimum cut off marks for vive-voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in Civil Appeal No. 1313 of 2008 filed by K.Manjusree against the State of A.P. & Anr. decided on February 15, 2008, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms:-
"The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."
From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted.
15 There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal.
16. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or nor, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree (Supra) the Court noticed the decisions in (1) P.K.Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision.
13. In OA 2299/2009 (supra), this Tribunal held as under:
5. The High Court of Delhi in Girish Ahuja v. KVS & others (CWP-5361/2008) decided on 10.9.2009 by setting aside the decision of the Tribunal treated the qualification of the ex-servicemen by virtue of their past experience as equivalent to the required qualification. Moreover, an identical issue was raised before the Tribunal in Ex. Subedar Major v. Govt. of NCT of Delhi & others (OA-2567/2009) decided on 15.3.2010 with the following observations:-
6. In Sandeep Kumars case in the TA No.1348/2009, the Tribunal had considered the issue from another angle. This was also a case where the petitioners grievance was for his non-appointment as Teacher (Primary) under the MCD in the ex-servicemen category. The ground of rejection had been his non-possessing requisite 50% in the senior secondary school examination. While taking into consideration the decision of the Honble High Court in the WP(C) No.7747/2007 in Sachin Gupta vs. DSSSB and distinguishing the facts of the case, the Tribunal had elaborately dealt with the issue within the gamut of the provisions of the ex-servicemen (Redeployment in Central Civil Services and Posts) Rules, 1979. Para 6 of the order would be relevant to the facts of the present case also and is extracted as below:-
An ex-serviceman, no doubt, for the purpose of teacher training has been made equivalent by certification by the Navy in the case of applicant, yet for the purpose of educational qualifications only on the condition precedent, as stated by us, 50% marks cannot be insisted and the case of applicant has to be processed. No doubt, an ex-serviceman has to confirm to the laid down qualifications for direct recruitment, yet Rule 6(a) shall prevail, if the conditions exist. In this case, the Tribunal had issued a direction to the respondents that in case there was an applicability of Rule 6(a) of the Redeployment Rules, the claims of the applicant were to be processed without insisting 50% marks in senior secondary school and thereafter to process his appointment.
A similar view was also taken by the Delhi High Court in the CWP 5361/2008 (Girish Ahuja Vs. KVS & Ors.).
7. In view of the foregoing, we conclude the present case as one in which the respondents have not considered in its true letter and spirit the certificate of equivalence granted by the Ministry of Labour in such cases: nor have they sought to exercise their powers for relaxation under the relevant rules for re-employment of ex-servicemen despite there remaining a large number of vacancies unfilled. Resultantly, the applicant despite his rich experience as an Educational Instructor in the Army, has been deprived of appointment as Teacher (Primary). This is not found to be justified by any cannon of rationality, fairness, adherence to rules and instructions whatsoever. This is also not in consonance with the decisions taken in the similar matters by the Tribunal as well as the High Court.
Resultantly, the OA is allowed with a direction to the respondents to offer the applicant an appointment for the post of Primary (Teacher) under the MCD in the ex-servicemen category within a period of two months from the date of receipt of a copy of this order. However, as we do not find any mala fide on the part of the respondents, the claims for errors or seniority or even award of costs are not found acceptable. No order as to costs.
6. In all fours, the claim of the applicant is covered by the decision of this Tribunal in Sandeep Kumar (supra).
7. Resultantly, OA is allowed. Respondents are directed to offer appointment to the applicant with all consequences in law to the post of Teacher (Primary) in MCD/Delhi Government within a period of two months from the date of receipt of a copy of this order. No costs.
14. In OA 2466/2010 (supra), this Tribunal has held as under:
5.1 Having carefully considered the matter, we find the present case squarely covered by the decision of a Ld. Coordinate Bench (PB) of this Tribunal in the OA 2299/2009 (Shri Ram Kanwar Singh vs GNCTD & Ors) decided on 17.3.2010. Dealing with a similar claim of an ex-Serviceman agitating against denial of appointment as a Teacher (Primary) under the MCD, the action of the respondents regarding rejection of his candidature on the ground of his not having secured 50% in Sr. Secondary Education Qualification was not found to be tenable. The Ld. Coordinate Bench had in turn relied upon the decision of another Coordinate Bench in the TA 1348/2009 (Sandeep Kumar vs Delhi Subordinate Services Service Board and Anr) decided on 4.8.2009; as well as in the OA 2567/2009 (Ex-Subedar Major vs Govt. of NCT of Delhi & Ors) decided on 15.3.2010. Besides, the decision of the Honble Delhi High Court in Girish Ahuja vs KVS & Ors (CWP 5361/2008 decided on 10.9.2009) had been referred to.
15. As far as the DSSSB is concerned, it has submitted that even though no cut off marks have been prescribed in the advertisement being the selecting body, it has to ensure that the candidates who have been selected for the advertised posts should have high level of performance. They have also stated that the persons who have not been found qualified in the selection process with relaxed standards cannot be recommended for appointment particularly as teachers who are responsible for the future of the students. In this regard, they have relied upon a Communication No. 15012/8/82 Estt.(D) dated 12.02.1996 issued by the Govt. of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) known as Ex-servicemen (Re-employment in Central Civil Services Posts) (Amendment) Rules, 1986. According to the said Rules, in the case of direct recruitment if sufficient number of candidates belonging to the ex-servicemen are not available on the basis of general standard to fill all the vacancies reserved for them, they can be selected under a relaxed standard of selection to make up the deficiency in the reserved quota subject to the condition that such relaxation will not affect the level of performance by such candidates. They have also submitted that as far as the cut off marks fixed for the ex-servicemen is concerned, it was just 25% of the maximum marks. According to them, if a candidate is not able to secure even 25% marks, he is not worthy to be recommended for appointment as a teacher.
16. The learned counsel for the respondents has relied upon the judgment of the Apex Court in Bharat State Electricity Board Vs. Suresh Prasad & Ors. (2004 (2) SCC 681) wherein it has been held that in the absence of any statutory rules to the contrary, the employer is not bound to offer the unfilled vacancies to the candidates next below the candidates in the merit list. The relevant part of the said judgment is as under:
6. We find merit in this appeal preferred by the Board. In the case of Shankarsan Dash v. Union of India (supra) it has been held by this Court that even if number of vacancies are notified for appointment and even if adequate number of candidates are found fit the successful candidates do not acquire any indefeasible right to be appointed against existing vacancies. That ordinarily such 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. It was further held that the State is under no legal duty to fill up all or any of the vacancies unless the relevant recruitment rules indicate. In the present case we are not shown any such relevant recruitment rules. Moreover, there is no merit in the contention advanced on behalf of respondents No. 1 to 7 that the appellant had violated the order of High Court dated 23rd March, 1994 by preparing a list of only 22 candidates instead of filling up 50% of the alleged 161 vacancies. In this connection, the impugned judgment of the High Court has recorded a finding of fact that the Board has rightly reduced the number of vacancies to 50 and to that extent claim of the writ petitioners was rejected. In the impugned judgment, the High Court found that 50 vacancies were required to be filled up, 25% against the advertisement dated 15th December, 1986 and 25% against advertisement date 25.11.1992. However, according to the impugned judgment, the appellant ought to have made appointments by preparing a further panel for 18 vacant posts which became vacant when the earlier 18 selected candidates opted out. It is this part of the reasoning of the High Court, which is fallacious.
7. In the present case pursuant to the direction of the High Court dated 23.3.1994, the appellant took steps for filling up 25 vacancies in the post of the Operators from advertisement No. 3/86 and the remaining 25 vacancies from advertisement No. 6/92. The results were notified on 29.4.1994 on the notice board. The Board recommended names of successful candidates under advertisement No. 3/86 and advertisement No. 6/92. Out of 22 candidates selected by the Board for appointment under advertisement No. 3/86 18 candidates did not turn up. At this stage it is important to note that respondent Nos. 1 to 7 had applied for appointment under advertisement No. 3/86 dated 15.12.1986 and they had qualified but they were placed at serial No. 23 onwards in the descending order. As stated above a panel of 22 candidates was prepared for appointment under advertisement No. 3/86 and respondent Nos. 1 to 7 fell beyond cut off number. We are not shown any statutory recruitment rules which require the Appellant-Board to prepare a waiting list in addition to the panel. The argument advanced on behalf of respondent Nos. 1 to 7 was in effect that when 18 candidates failed to turn up the appellant was bound to offer posts to candidates in the waiting list. No such rule has been shown to us in this regard. In our view, the judgment of this Court in the case of Shankarsan Dash v. Union of India (supra) squarely applies to the facts of this case. Further, there was no infirmity in the judgment of this Court delivered on 4.12.1998 and in our view with respect there was no need to recall the said judgment.
17. We have heard the learned counsel for the parties. We do not find any infirmity with the decision of the DSSSB in not selecting the applicants who could not even get 25% of the total marks in the qualifying examination. Re-employment of ex-servicemen in Central Civil Services and Posts is governed by the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979. The said Rules have been made under Article 309 of the Constitution. By the amendment carried out in the said Rules in 1979, relaxed standard in selection of the ex-servicemen has been made possible subject to the condition that such relaxation will not affect the level of performance by such candidates. It is a principle applicable to all selections. It cannot be the case of any one that a candidate who is not capable of performing his duties can be appointed to a post. It is only to take care of such situations, the DOPT has issued the aforesaid amendment vide their notification dated 12.02.1986. The aforesaid position is implicit in the advertisement issued by the respondents. While the ex-servicemen have to be given due consideration in the matter of re-employment in Central Civil Services posts even by relaxing the standard of selection, if sufficient number of candidates are not available, it is equally important for the selection body to ensure that the persons recommended for appointment have a reasonably good level of performance. One of the major indices for assessment of such performance, of course, is the marks obtained by the candidates in the written examination. It is seen that while the cut off marks fixed by the DSSSB in the case of other categories are at a higher level, the same in the case of ex-servicemen is just 25%. Therefore, we do not find any arbitrariness in the matter of fixing the cut of marks by the DSSSB in terms of the communication dated 12.02.1996 issued by the DOPT regarding re-employment of Ex-servicemen in service, referred to above. For the aforesaid reasons, the judgments/orders relied upon by the learned counsel for the applicants have no application in the facts and circumstances of these cases.
18. Resultantly, these TAs are dismissed. No costs.
(Dr. Veena Chhotray) ( G. George Paracken )
Member (A) Member (J)
SRD