Dev Kumar & Ors. vs The Chairman & Ors.

Per RAJ VIR SHARMA, MEMBER(J):

The applicants have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:

Resisting the O.A., the respondents have filed a counter reply.

The applicants have also filed a rejoinder reply refuting the stand taken by the respondents in their counter reply.

We have carefully perused the record, and have heard Ms.Kusum Lata Sharma, learned counsel appearing for the applicants, and Mr.K.M.Singh, learned counsel appearing for the respondents. We have also perused the written note of submissions filed by Ms.Kusum Lata Sharma, learned counsel appearing for the applicants.

Brief facts of the case, which are relevant for the purpose of deciding the issue and are not disputed by either side, are that the respondent-Delhi Subordinate Services Selection Board (DSSSB), by its Advertisement No.02/2012, vide Post Codes 48/12, 52/12 and 68/12, invited applications from eligible candidates for filling 319 [UR-157, OBC-120, SC-42 including Ex SM-60, PH(OH)-05, PH(VH)-06, PH(HH)-06)] vacancies in the post of Lower Division Clerk (LDC) in Delhi Jal Board (vide Post Code 48/12); 03(UR-03-reserved for ex-servicemen only) vacancies in the post of LDC (Male) in Rajya Sainik Board (vide Post Code 52/12), and 924 [UR-529, OBC-214, SC-121 including Ex SM-95, PH(OH)-09, PH(VH)-09, PH(HH)-09, Sports person-49)] vacancies in Grade IV(DASS)/LDC in the Services Department-III of GNCT of Delhi (vide Post Code 68/12) fixing 15.6.2012 as the closing date for receipt of applications. In response thereto, applicant nos. 1,2,3,5,8,15,17,18 and 21 applied for selection as Scheduled Caste (SC) candidates. Applicant nos.4,6,7, 9 to 14, 16, 19,20, 22 and 23 applied for selection as UR candidates. The respondent-DSSSB, by an addendum dated 8.5.2013, increased the vacancies in the post of Grade IV(DASS)/LDC in the Services Department of GNCT of Delhi (vide Post Code 68/12) from 924 to 1659 on the basis of the Services Department, GNCTD’s letter dated 10.4.2013. The respondent-DSSSB conducted a Single Tier combined written examination for the aforesaid three Post Codes. The applicants appeared in the said written examination held on 16.11.2014. The result of the written examination showing the marks obtained by the candidates was displayed on the website of the respondent-DSSSB on 20.3.2015. On the basis of the marks scored by the candidates, the respondent-DSSSB published the list candidates shortlisted for Skill Test scheduled to be held on and from 16.5.2015 to 24.5.2015. The applicants duly appeared in the Skill Test. As per the result Notice No.349 dated 14.12.2015, the respondent-DSSSB published the list of candidates with their roll numbers who qualified the Skill Test for the post of LDC, vide Post Codes 48/12,52/12 and 68/12, wherein the names of all the applicants appeared. The said list showing the candidates with roll numbers was not prepared in order of merit. The respondent-DSSSB, vide public notice dated 29.12.2015, called upon the candidates (including the applicants), who qualified the Skill Test for the post of LDC, vide Post Codes 48/12,52/12 and 68/12, to submit documents for verification on and from 4.1.2016 to 22.1.2016. Accordingly, the applicants duly appeared and submitted the documents for verification on the dates scheduled for verification of their documents. While the matter stood thus, the respondent-DSSSB, by Notice for Appearance dated 25.4.2016, granted an additional opportunity and to called upon the candidates, who either did not appear for verification or did not submit the documents for verification, to submit documents for verification on 5^th and 6^th May 2016. Thereafter, the respondent-DSSSB, by result notice no.389 dated 11.5.2016 (Annexure A/1), provisionally selected the candidates for the Post Code 68/12, as per the list appended thereto. In the said result notice no. 389 dated 11.5.2016 (Annexure A/1), the names of the applicants did not appear. Thus, the applicants were not selected for appointment to the post of LDC, vide Post Code 68/12. The marks of the last selected candidates for Post Code 68/12 in UR category were 150, in OBC category were 110, in SC category were 138.75, and in ST category were 122. The marks obtained by the applicants in the written examination were as under:

In the above context, the applicants have mainly contended that the respondent-DSSSB, with an intention to accommodate their favoured persons, acted in contravention of the terms and conditions of the advertisement by granting an additional opportunity to about 242 candidates, who either did not appear for verification of documents or did not submit documents for verification on the dates scheduled for them, to appear and submit documents on 5^th and 6^th May 2016. Although on the basis of the cut-off marks already fixed by the respondent-DSSSB, they were called to appear and submit documents for verification of documents, the respondent-DSSSB raised the cut-off marks for different categories of candidates after conducting the verification of documents of the aforesaid 242 candidates who ought not to have been given additional chance to appear and submit documents subsequent to the dates originally scheduled for them. The respondent-DSSSB also acted arbitrarily and illegally in changing the category of candidatures of nine candidates (vide Annexure A/8), as a result of which some UR candidates of those nine candidates were finally selected by the respondent-DSSSB against the vacancies reserved for SC and OBC. In view of all the above, the result notice No.389 dated 11.5.2016(Annexure A/1) stood vitiated. In support of their case, the applicants relied on the decision of the Hon’ble Supreme Court in Hemani Malhotra vs. High Court of Delhi, (2008) 7 SCC 11, where it has been held that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before 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. The applicants also relied on the decision of the Hon’ble Delhi High Court in Shikha Arora vs. DSSSB and another, W.P. (C) No. 8449 of 2008, decided on 19.1.2011, where the Hon’ble Single Judge has upheld the challenge made by the petitioner to his non-selection on the ground of not obtaining the cut-off marks prescribed after the selection process had commenced.

On the other hand, it has been contended by the respondents that the candidates who have been selected and appointed against the notified vacancies in the post of LDC(vide Post Code 68/12) pursuant to the result notice no.389 dated 11.5.2016 have not been impleaded as party-respondents in the present proceedings and, therefore, the O.A. is liable to be rejected. The candidates who could not appear and submit documents for verification of the documents were given an additional chance to meet the ends of justice. Initially at the time of inviting applications, the respondent-DSSSB had accepted manual physical application forms. Subsequently, the respondent-DSSSB had switched to online mode of application forms. Due to a dispute with the vendor for data entry, the original application forms were not available with the respondent-DSSSB. As all the selected candidates scored more marks in the written examination than that of the applicants, mere inclusion of the names of the applicants in the list of candidates called for verification of documents would not confer any right, much less an enforceable right, on the applicants to claim selection and appointment. The respondent-DSSSB continued the selection process with the data received through OARS registration and the draft data provided by the data entry vendor, which were used at the time of calling the candidates to appear in the written examination on 16.11.2014. While processing the results of the candidates, the respondent-DSSSB relied upon the category details provided by the candidates themselves at the time of written examination in their OMR sheets. The details of the aforesaid nine candidates, whose cases have been cited by the applicants, are as follows:

In the above circumstances, the applicants’ challenge to the final result notice dated 11.5.2016 on the ground of change of category of candidatures of some candidates is untenable, more so when those candidates belonging to different categories scored more marks in the written examination than that of the applicants.

After having given our thoughtful consideration to the rival contentions, we have found no substance in any of the contentions of the applicants.

The applicants have not impleaded, as party-respondents in the present proceedings, those candidates who were allowed an additional opportunity by the respondent-DSSSB to appear and submit documents for verification. The applicants have also not impleaded, as party-respondents in the present proceedings, those candidates whose categories of candidatures were changed by the respondent-DSSSB under the circumstances explained by the respondents in the counter reply. In view of the above, and it being the admitted position between the parties that the aforesaid two groups of candidates had scored more marks in the written examination than that of the applicants, we are not inclined to accept the plea of the applicants that the impugned result notice (Annexure A/1) stood vitiated for allowing additional opportunity to the aforesaid candidates to appear and submit documents for verification, and for changing the category of candidatures of the aforesaid candidates. Furthermore, when admittedly the selected candidates belonging to different categories had scored more marks in the written examination than that of the applicants, the purported raising of cut-off marks in the written examination cannot also be said to have vitiated the impugned result notice. It is not the case of the applicants that due to raising of cut-off marks, they were not selected, though some vacancies remained unfilled. When on the basis of the purported cut-off marks prescribed by the respondent-DSSSB for different categories of candidates the notified vacancies have been filled, the applicants’ challenge to the impugned result notice on the ground of raising of cut-off marks is without any substance. The decisions cited by the applicants, being distinguishable on facts, do not come to their aid.

In the light of what has been discussed above, we have no hesitation in holding that the O.A. is devoid of any merit and liable to be dismissed. Accordingly, the O.A. is dismissed. No costs.