Central Administrative Tribunal - Delhi
Manish Kumar vs Govt. Of Nct Of Delhi Through Chief ... on 3 August, 2009
Central Administrative Tribunal Principal Bench OA No.765/2008 MA No.660/2008 New Delhi this the 3rd day of August, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Veena Chhotray, Member (A) 1. Manish Kumar, S/o Shri Ghan Shyam, R/o Village & P.O. Pandwala Kalan, Najafgarh, New Delhi-110043. 2. Rishi Dev Dahiya, S/o Shri M.S. Dahiya, R/o M.S. Dahiya, R/o F-1, Fire Station, Keshav Puram, New Delhi-110035. 3. Robin, S/o Shri Prem Singh, R/o C/o Shri Kuldeep Singh, Mohalla Satgarah, V & P.O. Karala, Delhi-110081. -Applicants (By Advocate Shri Arun Bhardwaj) -Versus- 1. Govt. of NCT of Delhi through Chief Secretary, Players Building, I.T.O., New Delhi. 2. The Chairman, Delhi Subordinate Service Selection Board, UTCS Building, Vishwas Nagar, Karkardoma, Shahdara, Delhi-110032. 3. The Chief Fire Officer, Delhi Fire Service Headquarter, Connaught Place, New Delhi. -Respondents (By Advocate Shri Vijay Pandita) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
Applicants in pursuance of an advertisement by the Delhi Subordinate Service Selection Board (DSSSB) for the posts of Fire Operator in the department of Delhi Fire Service applied for the same. The essential qualification was matriculate with a valid license for driving heavy-duty vehicles and the candidates should pass the physical endurance test, driving test and written test as prescribed by the Chief Fire Officer. A written test was conducted on 10.3.2007 and those who have cleared it were called for driving test on different dates between 19.11.2007 to 10.12.2007. Applicants also appeared in the driving test but made complaints that the officers of an agency of Leyland who conducted the driving test demanded Rs.50,000/- from applicants for declaring them as qualified in the driving test. On their refusal when the applicants did not find their names in the panel filed OA No.1/2008 before this Tribunal, which was allowed to be withdrawn, with liberty on 2.1.2008. On 28.1.2008 the results have been declared where against 835 posts advertised, only 605 were declared successful in the driving test. Applicants challenge the aforesaid on the ground that whereas in the advertisement driving test was only of qualifying nature, yet as transpired from the additional affidavit a joint initiative of Bhagidari Scheme of Govt. of NCT of Delhi Driving Training Institute, Burari, which is under the Transport Department of Government of NCT Delhi and Ashok Leyland a test was conducted, which as an essential requirement set out 60% marks as qualifying. As such, as the applicants have failed to obtain those marks they have been declared unfit. Learned counsel would contend that description of 60% marks whereas the same is only qualifying is not in accordance with law when the written test was also consisting of 100 marks. The marks for driving test exceed marks of interview. Learned counsel would also contend that when the marks in written and interview are to be added, non addition of the marks of the driving test is an illegality, though the applicants contend that they secured more marks than the last qualified candidates in general and OBC categories, yet are not selected, which is malafide and violative of Articles 14 and 16 of the Constitution of India.
2. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that as Fire Operators in Delhi Fire Service require driving test, applicants having failed to achieve the cut off marks are estopped from challenging the selection, which has been held in accordance with the rules. Learned counsel would also contend that as per the advertisement selection has to be finalized as per the performance of the candidates and the short listing for skilled test and physical endurance test and cut off marks cannot be questioned not being arbitrary, as the evaluating team comprised of officers of the rank of Motor Licensing Officer (MLO), after adjudging the suitability of applicants for the post of Fire Operator did not find them suitable. There is no infirmity or irregularity in it. Learned counsel would also contend that complaint of applicant against demand of money is an afterthought, as they have not raised any objection before the selection process has been started.
3. We have carefully considered the rival contentions of the parties and perused the material on record. As ruled by the Apex Court in Sadananda Halo v. Momtatz Ali Sheikh, 2008 (2) SCC (L&S) 9 unsuccessful candidates cannot turn back and assail the selection process unless exceptions are made out. Also held by the Apex Court in Dhananjay Malik v. State of Uttranchal, 2008 (4) SCC 171 that unsuccessful candidates challenging the recruitment after unsuccessfully participating in the process of selection, the valid objection, if any, would have to be taken without participating in the selection. Moreover, the short-listing criteria and prescription thereof is the prerogative of the selection body even if it is not specified in the rules or advertisement, the same is permissible as ruled in B. Ramakichenin v. Union of India, 2008 (1) SCC 362. The Apex Court in G.N. Nayak v. Goa University & others, 2002 SCC (L&S) 350 ruled that qualification laid down by the selection committee cannot be reviewed in a judicial review by the Court. Recently the Apex Court in Amalan Jyoti Borooah v. State of Assam & others, 2009 (1) SCC (L&S) 627 in a matter of challenge to the selection and power of the selection committee to hold physical test etc., ruled that a candidate who is subjected himself to a valid selection process cannot challenge it later on remaining unsuccessful. In Andhra Pradesh Public Service Commission v. Baloji Badhavath & others, 2009 (1) SCC (L&S) 999, it is ruled that a procedure laid down cannot be interfered with. when it is neither arbitrary nor discriminatory nor unfair.
4. In the light of the trite position of law applicants though possessing the valid driving license and performing the duty of driving a heavy duty vehicle, yet despite they have qualified the written test and the driving test, which has been held by a team comprising of MLO, Burari under the supervision of officers from the Transport Department of Govt. of NCT Delhi through an agency of Ashok Leyland, it is the prerogative of the authority to constitute holding the driving test. In such an event, the criterion of 60% marks has reasonable nexus with the object sought to be achieved, as the Fire Operator in Delhi Fire Service have to drive the vehicles in a different situation as well, the best of the persons are to be picked. Moreover, others who have not been selected and those who have been selected have qualified on attaining 60% marks, though may be a qualified standard, yet when the advertisement and the rules do not stipulate as to what would be the qualifying standard 60% marks for qualification having laid down by the authority is neither malafide nor arbitrary in the circumstances.
5. As regards the allegation of demanding money by the conducting agency it is stated that nothing precluded applicants to have informed the law enforcing authorities at the time when the selection was held or should have taken legal proceedings. Merely an application was filed after interview on remaining unsuccessful, they are estopped from challenging the process and this act is an afterthought.
6. Resultantly, for the foregoing reasons, the OA is found bereft of any merit and is accordingly dismissed. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.