Delhi High Court
The Chairman, Delhi Subordinate ... vs Ms. Rajni & Ors. on 5 March, 2013
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : March 05, 2013
+ WP(C) 2552/2012
THE CHAIRMAN, DELHI SUBORDINATE
SERVICES SELECTION BOARD & ANR. .....Petitioners
Represented by: Ms.Zubeda Begum and Ms.Sana
Ansari, Advocates.
versus
MS. RAJNI & ORS. .....Respondents
Represented by: Mr.Rakesh Saini, Advocate for R-1.
Mr.Mithilesh Kumar Mishra and Mr.H.S.Sachdeva,
Advocates for R-3.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. On July 04, 2008 the Government of National Capital Territory of Delhi had issued a directive to the Delhi Subordinate Services Selection Board informing that henceforth results declared by the Board shall be confined only to the number of vacancies for which the requisition is sent.
2. Before dealing with the facts of the instant case we would like to pen a few words on the legality of the said directive.
WP(C) 2552/2012 Page 1 of 63. 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. We are finding in a large number of cases that between 5% to sometimes up to 20% of the notified vacant posts are not being filled up. The reason is that the Delhi Subordinate Services Selection Board, which conducts examinations for Group 'B' and Group 'C' posts in the Delhi Government, its subordinate offices and the Municipal Corporation of Delhi does not scrutinize the application forms submitted by candidates with respect to the certificates furnished by the candidates on the subject of eligibility. As long as the application form is in order, the candidate is permitted to take the examination. When the merit list is prepared the same is strictly as per merit position. It is only then that the officers of the Board start scrutinizing the certificates furnished by the candidates. It happens that there are deficiencies in the certificates submitted and these candidates, whose names find a mention in the merit list, are not issued the letters offering appointment. Further, the time period between when applications are invited and results are declared ranges between 6 months to in some cases up to 2 years. Many candidates who are empanelled secure equal or better jobs elsewhere in the interregnum and thus do not respond to the letters offering appointment. But since the merit list is limited to the number of vacancies, the result is a large number of vacancies not being filled up.
5. The justification given for resorting to aforesaid is that thousands of applicants apply for only a few posts and if every application is to be WP(C) 2552/2012 Page 2 of 6 scrutinized, manpower required would be large. This is the justification to let everybody take the competitive examination and once the merit is known, only scrutinize the applications of those who are empanelled. But, this administrative exigency does not take into account that public posts remain unfilled. In fact, pertaining to selection of teachers in the Government Schools we find that at every selection process the number of vacancies which remain unfilled are a couple of hundred. The right of the students to education is impaired.
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 WP(C) 2552/2012 Page 3 of 6 reserve list, in order of descending merit, would be issued letters offering appointment.
8. Now to the facts of the instant case.
9. 44 posts of Pharmacists (Homeopathy) were to be filled up under Delhi Government. 21 posts were in the Unreserved Category; 13 in the OBC Category and 5 each in the SC/ST Category. Result was declared on March 08, 2009. As per merit position, in the descending order of merit; descending down from serial No.1, the names of candidates pertaining to unreserved posts were declared and since as per marks obtained 7 OBC candidates, competing with other candidates as also 2 SC and 1 ST candidate, had obtained marks entitling them to find a merit position up to serial No.21, the names of those 7 OBC, 2 SC and 1 ST candidate were entered in the merit list of Unreserved Candidates. Simultaneously the merit list of OBC, SC and ST candidates were declared, and needless to state such OBC, SC and ST candidates who on their merit were adjusted against the unreserved vacancies, other OBC, SC and ST candidates stood empanelled.
10. After scrutinizing the certificates furnished by the empanelled candidates, 2 candidates in the merit list pertaining to the unreserved category were not issued letters offering appointment and since the merit list was limited to the number of vacancies notified, the vacancies pertaining to the said 2 posts in the unreserved category went abegging.
11. The respondent No.1 who competed in the unreserved category approached the Central Administrative Tribunal and obtained an order on October 20, 2011 requiring two further names in the Unreserved Category to be forwarded to the concerned department by the Board for 2 WP(C) 2552/2012 Page 4 of 6 posts to be filled up. The Tribunal noted that one post reserved for SC candidate had likewise not been filled up and for which same direction was issued.
12. The reasoning of the Tribunal is that those candidates who secured marks above the cut off, subject to their merit position, warranted appointment, keeping in view a post available.
13. Since we have already held the directive dated July 04, 2008 to be contrary to law being based on no rationality, the view taken by the Tribunal cannot be faulted. But the direction issued is faulty. The reason is that the Tribunal could not direct two unreserved candidates to be issued letters offering appointment with reference to the merit position inasmuch as the result declared by the Board would evidence to us that respondent No.1 Rajni, has obtained 112 marks. In the list of unreserved candidates, as noted by us, 7 OBC candidates have found a position in the merit list of the candidates in the unreserved category. The list of 13 OBC candidates would evidence that 2 have obtained 116 and 113 marks. Meaning thereby, these two candidates would be entitled to be adjusted against unreserved vacancies and 2 more OBC candidates, subject to obtaining qualifying marks, would be entitled to be offered appointment. Thus, with respect to Rajni it would be a case of operation successful patient dead.
14. We thus dispose of the writ petition holding the Office Order dated July 04, 2008 to be arbitrary and direct that henceforward DSSSB would maintain a reserve list. As regards the instant case, we modify the direction issued by the Tribunal to issue letter offering appointment to two unreserved candidates. We substitute the direction to the Board to WP(C) 2552/2012 Page 5 of 6 adjust either OBC or SC or ST candidates as per the marks obtained by them against unreserved vacancies yet to be filled up and thereafter issue letters offering appointment to other OBC/SC candidates in their respective quota. Under all circumstances the notified posts would be filled up.
15. No costs.
CM No.5456/2012 (stay) & CM No.10317/2012 (directions) Disposed of as infructuous.
(PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE MARCH 05, 2013 dk WP(C) 2552/2012 Page 6 of 6