AI Structured Summary
Not yet generated for this judgment
Judgment
K.N. Shrivastava, Member (A)
As common questions of law and facts are involved and the reliefs claimed are also identical, with the consent of the parties, we proceed to dispose of these two Original Applications (OAs) by this common order. However, for the sake of convenience facts in OA No.4149/2017 are discussed.
Through the medium of these OAs, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have prayed for the following main relief:
"8.1 Direct the respondents to quash and set aside the impugned Result Notice at Annexure A-1 and Annexure A-2 respectively, by setting aside the final result and as a consequence, direct the respondents to adopt the original selection criteria, consisting of 200 marks of Written Examination and 30 marks of PET and thereafter, undertake the exercise of redrawing the final merit list in accordance thereof and in case the applicants find place in that merit list, the respondents be directed to consider them for appointment as Fire Operator;"
The factual matrix of the case, as noticed from the records is as under:
3.1 As per a requisition of Government of National Capital Territory of Delhi (GNCTD) - respondent no.1, the Delhi Subordinate Services Selection Board (DSSSB) - respondent no.3 issued Annexure A-6 advertisement no.01/14, inviting applications for various posts, including the post of Fire Operator (Post Code 71/14). The opening date for the receipt of applications was notified as 27.01.2014 and closing date 27.02.2014. The advertisement also indicated that 803 posts of Fire Operator are to be filled up (UR-290, OBC-126, SC-282 & ST-105). It was specifically mentioned in the advertisement that the post of Fire Operator is identified not suitable for Physically Handicapped (PH) persons as per the requisition of the User Department, i.e., Delhi Fire Service-respondent no.2. The essential qualifications, desirable experience and physical standards for the post were notified in the advertisement as under:
"Qualification Essential: 1. Matric pass from a recognized Institute /Board or equivalent. 2. Should possess valid license for driving heavy duty vehicles. 3. Should qualify physical endurance test, driving test and written test as prescribed by the Chief Fire Officer.
Note:- Candidate selected for appointment to the post shall have to undergo a pre-service training of 6 months as prescribed by Chief Fire Officer and shall have to pass the prescribed test. The training shall be terminated if the work and conduct of the candidates is not found satisfactory. During training a fixed amount of stipend shall only be paid.
Desirable:- Technical qualification in profession.
Experience Desirable:-Experience in playing band.
Physical Standards Essential:- Minimum Height : 165 cms. (relaxable of 5 cms for hilly area people) Minimum Weight: 50 kgs. Chest (normal): 81 cms. Chest (expanded): 86.5 cms. Eye Sight: 6/6
Disqualification (1) Wearing glasses/squint eyes/colour blindness.(2) Flat Feet (3) Knock Knee. (4) Deformity of any limb / extra limb. Desirable: Swimming/diving.
Pay Scale:- Rs 5200-20200 + Grade Pay Rs.2000/- plus Special Allowance, Risk Pay, Washing Allowance).
Age Limit:-27 years (Relaxation for SC/ST-05 years,OBC-03 years, Departmental Candidates with 03 years continuous service upto 40 years (upto 43 years for OBC, upto 45 years for SC/ST)."
3.2 Regarding the mode of selection, the advertisement had indicated that for the post of Fire Operator (Post Code-71/14), only one tier examination would be conducted.
3.3 The written examination for the post was held on 31.08.2014 comprising of five papers of 40 marks each. The result of the written examination was declared on the website of DSSSB on 24.02.2015. The list of short-listed candidates, on the basis of the written examination conducted on 31.08.2014 for appearing in Physical Endurance Test (PET), was notified vide Notice No.370 dated 29.04.2015 (Annexure A-3 colly). It was indicated therein that based on the performance of the candidates in the written examination, 2080 candidates (UR-1165, OBC-401, SC-201 & ST 313) have been qualified provisionally and declared eligible to be called for PET. The notice further informed as under:
"The number of qualified candidates for appearing in physical endurance test (PET) has been done in the ratio 1:4 of the advertised vacancies with taking all the candidates who have scored marks equal to the cut off marks for each category for shortlisting, even if, it results in increasing the candidates beyond the ratio 1:4. Final selection against advertised vacancies shall be made in accordance with the merit list drawn as per result of the written examination subject to availability of vacancies and the candidates qualifying the PET and also fulfilling of all conditions of eligibility as prescribed by the RRs and terms & conditions of advertisement."
3.4 The cut off marks (out of 200 marks) in the written examination for various categories were indicated as under:
UR-90
OBC-70
SC/ST-60
The names of these applicants had appeared in the list of short-listed candidates as per the Notice no.370 dated 29.04.2015.
3.5 The DSSSB, vide its Annexure A-4 Addendum dated 26.05.2015, notified that the number of vacancies for the post of Fire Operator (Post Code-71/14) has been increased from 803 to
841 as per the following details:
UR
OBC
SC
ST
Total
321
126
288
106
841
3.6 The DSSSB, vide its Annexure A-5 notice dated 01.06.2016, informed that PET for the candidates who have been declared eligible for participation in the PET would be held from 17-29 June, 2016 (except Sundays i.e. 19th & 26th June, 2016) at Chatrasal Stadium, Model Town, Delhi. The DSSSB also issued instructions to the candidates for PET on 01.06.2016 (p.103-104), which, inter alia, included as under:
"1. Based on result of written examination held on 31.08.2014, you have been provisionally qualified for appearing in Physical Endurance Test (PET)/Physical Standard Essential. Marks for performance in these PETs will be granted as per provisions in recruitment rules for this post.
e-Admit cards are being uploaded on the official website of DSSSB i.e. dsssbonline.nic.in and eligible candidates may download their e-admit card w.e.f. 06.06.2016 at 11.00 AM to 16.06.2016 up to 11.59 PM. In case, any candidate finds difficulties in downloading the e-admit card he/she may contact the Board Office on Telephone No.22379204/22370307 or may approach the DSSSB office at above address on 15.06.2016 & 16.06.2016 between 10.00 AM to 5.00 P.M. alongwith proof of their identity.
If any candidate appearing for the above examination finds that his/her name, reservation category, post name, post code, photo, signature are missing or incorrect in his admit card, he/she should get it rectified by visiting the Board office on the date and time mentioned in point No.2. Any modification of the admit card at the examination venue will not be allowed.
No candidate without e-Admit Card (issued by the Board) and Photo Identity card (Voter ID Card, Aadhar Card, Govt. ID Card, Driving License) shall be allowed to enter the test venue.
Any kind of malpractices such as impersonation, canvassing, usage of steroids etc. shall invite penal action including rejection from present test as well as debarring from future examinations/tests.
The candidature to the Physical Endurance Test is entirely provisional and subject to the outcome of direction/decision/order pronouncement of any Court of Law and mere issue of Admit Card or appearance at the Test does not entitle the candidate to any claim for the post.
The Board reserves the right to cancel a part of or entire process of Test due to administrative reasons and in case of unfair means, cheating or other irregularities/malpractices if noticed by the Board. The Board also reserves the right to cancel Test Centre or set up a new centre and divert the candidates to appear at new centre, if required. No request for change in date, time and centre of Test will be accepted under any circumstances.
The Board reserves the right to reject the candidature of any ineligible candidate at any stage of recruitment/selection.
Any dispute with regard to this recruitment will be subject to courts/tribunals having jurisdiction over Delhi.
No TA/DA is admissible to any candidate for appearing in the test.
All candidates are strictly advised to wear/vest/T-shirt for affixing chest badge for clear identification during Physical Endurance Test (PET).
The candidate should scrupulously follow these instructions and also that of the designated officers of the Board at the Test Centre failing which the candidature of the candidate may be cancelled.
Candidates shall bring with them copies of all documents supporting their candidature for the post, with one recent self attested photograph on the day of Physical Endurance Test.
Candidates should also bring his Photo Identity proof in original."
3.7 Spelling out the details of the physical standards essentials qua Post Code 71/14 - Fire Operator, the DSSSB had informed the shortlisted candidates for PET as under:
"Post code:71/14 (Fire Operator)
Physical Standards Essential:- Minimum Height: 165 cms. (Relaxable of 5 cms for hilly area people) Minimum Weight: 50 kgs. Chest (normal): 81 cms Chest (expanded): 86.5 cms. Eye Sight: 6/6 Disqualification (1) Wearing glasses/squint eyes/colour blindness (2) Flat Feet (3) Knock Knee. (4) Deformity of any limb/extra limb.
S.No.
Test I Items
Minimum Qualifying
1
2
3
4
5
6
7
8
9
10
Standard
1.
Long Juma (Mts.)
2.80
2.80 & above
3.10 & above
3.40 & above
3.70 & above
4.0 & above
4.30 & above
4.60 & above
4.90 & above
5.20 & above
5.50 & above
2
High Jumpt (Mts.)
0.80
0.80 & above
0.90 & above
1.00 & above
1.10 & above
1.20 & above
1.30 & above
1.40 & above
1.50 & above
1.60 & above
1.70 & above
3.
800 Mts. Run (Sec)
200 Sec.
Below 200
Below 195
Below 190
Below 185
Below 180
Below 175
Below 170
Below 165
Below 160
Below 155
A candidate will have to qualify in all of the three events individually with minimum 33% marks to declared pass."
3.8 The Recruitment Rules (RRs) for the post of Fire Operator in Delhi Fire Service were notified by the Home Department of the GNCTD in Delhi Gazette (Extraordinary) on 19.02.1999, a copy of which is at pages 310-11 of the paper-book. In the RRs, the pay scale, mode of selection, age limit for direct recruits, number of sanctions posts, essential qualifications and physical standards have been prescribed. The essential qualification would indicate that a candidate applying for the post of Fire Operator must be matric pass from a recognized Institute/Board or equivalent, should possess valid licence for driving heavy duty vehicles and should qualify physical endurance test, driving test and written test as prescribed by the Chief Fire Officer.
3.9 The Chief Fire Officer, Delhi Fire Service, vide his letter dated 12.04.2013 (page 312) has laid down the physical test items, viz. long jump, high jump and 800 mtr. run and has also prescribed performance score points on the scale of 1 to 10 together with Annexure dated 12.04.2013 wherein it is stated that final merit list shall be prepared based on the total percentage of marks obtained by the candidate in the three criterion set-forth for the selection, i.e., PET, driving skill test and written test. These physical standards have also been notified to the candidates under the instructions to candidates for PET as noticed in para-3.7 supra.
3.10 The aforementioned order of the Chief Fire Officer clearly indicates that the final merit list shall be prepared based on the total percentage of marks obtained by the candidates in the three criteria fixed for selection, i.e., PET, driving test and written test. The order is also having an Annexure issued on the same date and it reads as under:
"In Para 21 following procedure may be adopted regarding recruitment of Fire-Operator:
First Physical Endurance Test followed by Driving Test further followed by Written Test regarding Col. 21 of proforma for requisition of vacancies regarding minimum marks for qualifying. It has been decided that 100 marks will be for Physical Endurance Test, 100 marks for Driving Test and 100 marks for Written exam and minimum qualifying marks for Physical Endurance Test, he has to obtain 10 marks out of 30 i.e. 33% to be declared/passed and he has to qualify in each events. Final merit list shall be prepared based on total marks obtained out of 300 (i.e. 100 marks each for Physical Endurance, Driving Test & Written Test).
N.B. In case number of candidates available after Physical & Driving Test are less than vacancies, Written test will be dispensed with and merit will be prepared on combined Physical Endurance Test & Driving Test (out of 200 marks)."
3.11 After the conduct of the PET, the DSSSB published notice No.548 dated 6.6.2017 (Annexure A-1) shortlisting as many as 1185 candidates. This notice also inter alia stipulates as under:
"Taking into consideration the selection criteria & RRs for the post as per Board decision, marks of Written Test as well as PET have been converted to 100 marks each instead of 200 & 30 marks by proportionately scaling down or scaling up the marks originally scored by the candidate in Written Test and PET respectively."
3.12 After the PET, the shortlisted candidates as per the Annexure A-1 notice no.548 were allowed to participate in the driving skill test which was conducted by Delhi Fire Service from 01.09.2017 to 22.09.2017. The final Select List was declared by DSSSB vide Annexure A-2 result notice no.606 dated 16.11.2017, according to which 357 candidates have been selected (UR-206, OBC-78, SC-26 & ST-47). The applicants have failed to make to the Select List.
Aggrieved by their non-selection, the applicants have approached this Tribunal in these OAs praying for the relief as indicated in para-1 supra.
In support of the relief claimed, the applicants have pleaded the following important grounds:
4.1 The DSSSB has changed the selection criteria in the midst of the selection process, which is not permissible under law. It is stated that as per the Annexure A-1 notification dated 06.06.2017, the maximum marks of the written test have been scaled down from 200 to 100 and the marks of PET have been upscaled from 30 to 100. Such action of the respondents is contrary to law. Reliance in this regard has been placed on the judgments of the Hon'ble Apex Court in the cases of K. Manjusree v. State of A.P., AIR 2008 SC 1470, Himani Malhotra v. High Court of Delhi, AIR 2008 SC 2103 and P. Mohanan Pillai v. State of Kerala & Ors., AIR 2007 SC 2840.
4.2 The up-scaling of marks in PET and down-scaling of written test marks have worked prejudicial to the interest of the applicants. The act of the respondents in changing the rules of the game after the game has started, is illegal, arbitrary and impermissible under law.
Pursuant to the notices issued, the official and private respondents entered appearance and filed their respective replies. The official respondents in their reply have broadly stated as under:-
5.1 As per the RRs for the post of Fire Operator, the merit list is to be drawn on the basis of performance of the candidates in written test, PET and driving skill test, each comprising of 100 marks.
5.2 The written test was of 200 marks and PET of 30 marks. However, with the approval of the competent authority, it was decided to down-scale the maximum marks of the written test from 200 to 100 and to upscale the PET marks from 30 to 100.
5.3 As per the direction of the competent authority, a meeting was held on 17.05.2017 under the Chairmanship of the Chairman, DSSSB, wherein it was decided that candidates having HMV driving licence as prescribed in the RRs may be awarded 100 marks each and final list be prepared/worked out on the basis of combined score of written test, PET and 100 marks for possession of valid HMV licence.
5.4 As per the RRs, a candidate has to score minimum 10 marks out of 30, i.e., 33% for being declared passed in the PET. The candidate has to qualify all the three events of PET individually.
5.5 The Tribunal did not find the reply of the official respondents satisfactory and directed the respondents to file an additional affidavit, which was done. In the additional affidavit, the respondents have stated that the merit list is to be prepared on the basis of total marks obtained by a candidate in the written examination, PET and driving test, each comprising of 100 marks, i.e., total of 300 marks. The respondents have also enclosed the following documents with the additional affidavit:
i) Letter dated 12.04.2013 of the Administrative Officer, Delhi Fire Service to Deputy Secretary (P&P) DSSSB indicating that 803 vacancies for the post of Fire Operator are to be filled up.
ii) Proforma indicating the pay scale, essential qualifications, selection criteria etc. as stipulated in the RRs.
iii) Draft advertisement (Form No.002) indicating therein the procedure to be adopted for the recruitment of Fire Operator.
iv) A copy of the gazette notification dated 19.01.1999 notifying the RRs for the post of Fire Operator.
v) The order dated 12.04.2013 of Chief Fire Officer, Delhi Fire Service, spelling out the test items and qualifying standards for PET.
vi) Resolution No.CC-1/2017/5 dated 02.06.2017 whereby the decision of the competent authority dated 24.03.2017 for conversion of marks of candidates from 200 marks to 100 marks for written test and conversion of 30 marks to 100 marks for PET has been ratified by the Board of DSSSB in its meeting held on 02.06.2017.
On completion of the pleadings, the case was taken up for hearing the arguments of the learned counsel for the parties on 02.08.2018. Arguments of Ms. Jyoti Singh, learned senior counsel with Shri Ajesh Luthra, Mr. J.S. Mann, Mr. Vipul Upadhyay and Mr. Amarjit Singh, counsel for the applicants and that of Ms. Sangita Rai, Mr. Pradeep Singh Tomar, Mr. Siddharth Panda, Mrs. Harvinder Oberoi, learned counsel for the official respondents and Shri S.K. Gupta, learned counsel for the private respondents were heard. The learned counsel for the parties were also permitted to file short synopsis of their arguments together with copies of judgments relied upon by them, which they did.
The main contention of Ms. Jyoti Singh was that the selection criteria have been changed after the selection process had begun. She submitted that the selection criteria ought to have been spelt out in the advertisement notice itself. Down-scaling of written marks and up-scaling of PET marks have been done without keeping the candidates informed. She stated that it is well settled proportion of law that weightage of a particular examination should be intimated to all the candidates prior to the commencement of the examination so that they would prepare themselves accordingly.
7.1 She further submitted that as per the advertisement notice for the Post Code 71/14, only one tier written examination consisting of 200 marks was prescribed. No marks for the other two tests namely PET and driving test have been notified to the candidates. She vehemently argued that the up-scaling and down-scaling of PET and written test marks respectively have completely changed the scenario. Many candidates like the applicants, who would have otherwise qualified for selection, have been ejected out of the selection process due to the up-scaling / down-scaling.
7.2 She further submitted that the candidates were never informed that the driving test will be of 100 marks. The reply to para 4.5 and 4.6 of the OA of the official respondents is completely misleading.
7.3 She strenuously argued that the candidates were always under the impression that PET and driving tests are only qualifying tests and that the merit list is to be prepared on the basis of written test only.
Per contra, Ms. Sangita Rai, learned counsel for the official respondents argued that the selection has been done strictly in accordance with the advertisement notice and the RRs. She emphatically argued that all the candidates were aware of the selection criteria, which were intimated to them from time to time. They were well aware that the final merit list will be prepared on the basis of the total marks obtained by the candidates in the written test, PET and driving test, each comprising of 100 marks.
8.1 She argued that the applicants have questioned the selection process only after having been rendered unsuccessful in it and thus legally they have no locus standi to question the selection process.
Shri Surinder Kumar Gupta, learned counsel for the private respondents, besides endorsing the arguments of Ms. Sangita Rai, stated that the candidates were aware of their positions as per their performance in the written test and PET.
9.1 He further stated that down-scaling and up-scaling is a normal method adopted by DSSSB and various recruiting agencies and that no candidate has ever objected to it nor has submitted any representation against it. All the shortlisted candidates after the written test and PET were ready to undergo the next test, i.e., driving test without any objection whatsoever.
9.2 Shri Gupta vehemently argued that the applicants after having been declared unsuccessful in the selection process, do not have any right to challenge the selection process on the ground that the procedure adopted was wrong or there were some irregularities committed by the selection conducting authorities. He vehemently argued that the principle of estoppel would work against the applicants.
9.3 To buttress his arguments, Shri Gupta has relied on the following judgments of the Hon'ble Supreme Court in the following cases:
i) G. Sarna v. University of Lucknow & Ors., [(1976) SCC 3 585].
ii) Ramesh Chandra Shah and Others v. Anil Joshi and Others, [(2013) 11 SCC 309.
iii) State of Punjab v. Bahadur Singh & Ors., [Civil Appeal No.7347 of 2008, decided on 17.12.2008].
iv) Union of India & Ors. v. N.R. Parmar & Ors., [JT 2012 (12) SC 99].
v) Sunil Kumar and Others v. Bihar Public Service Commission and Others, [(2016) 2 SCC 495].
9.4 The learned counsel also relied on a decision of the Hon'ble High Court of Delhi in the case of Sandeep Kumar & Ors. v. Delhi Fire Service & Ors., W.P. (C) No.1888/2014 & CM No.3944/2014, decided on 23.05.2014 and a decision of Principal Bench of this Tribunal in the case of Dr. Kamalesh Narain Singh v. Indian Council of Agricultural Research & Ors., [OA No.1412/2015 decided on 14.03.2017].
We have considered the arguments of the learned counsel for the parties and have also perused the pleadings. It is a fact that in the advertisement notice no.01/14 the DSSSB qua the post of Fire Operator (Post Code 71/14) had indicated that the one tier examination will be held but the mode of selection spelt out in the advertisement clearly indicates that PET and skill test would also be conducted for the post, wherever applicable. Furthermore, the advertisement clearly stipulates that a candidate applying for the post of Fire Operator should possess valid driving licence for heavy duty vehicles and should qualify PET, driving test and written test as prescribed by the Chief Fire Officer. The physical standard essentials, as prescribed by the Chief Fire Officer, have also been incorporated in the advertisement. The order dated 12.04.2013 of the Chief Fire Operator clearly lays down the standards of the PET together with the performance points. The Annexure of this order of even date leaves no room for any doubt that the final merit list is to be prepared out of total marks obtained by the candidates out of 300 (100 marks each for written test, PET and driving skill test). As a matter of fact, the GNCTD together with its indent to DSSSB, had enclosed a copy of the order dated 12.04.2013 of the Chief Fire Officer as well as a copy of the RRs for the post. Even the decision of the competent authority in regard to up-scaling of the PET marks and down-scaling of the written test marks dated 24.03.2017 was duly ratified by the DSSSB in its meeting held on 02.06.2017. The DSSSB has notified the list of shortlisted candidates at two stages, viz. after the written test and after the PET (Annexure A-3 colly. and Annexure A-1) respectively. The Annexure A-1 notice no.548 had clearly indicated that up-scaling of PET marks and down-scaling written test marks had been done. The applicants did not object to it; understandably for the reasons that their names had appeared in the list of shortlisted candidates as per Annexure A-1. The Annexure A-2 result notice no.606 dated 16.11.2017 was published after the conduct of the driving skill test and after preparation of the merit list on the basis of the aggregate marks scored by the candidates in all the three tests, viz. written test, PET and driving skill test. The applicants have started questioning the selection process itself since they failed to make in the select list. Such action of the applicants is against the law laid down by the Hon'ble Apex Court in the case of Madan Lal & Ors. v. The State of Jammu & Kashmir & Ors., [(1995) 3 SCC 486] has held as under:
"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Upto this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., (AIR 1986 SC 1043), it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
From the perusal of the records, we are convinced that the candidates were well aware that the final merit list will be prepared on the basis of the total marks scored in the three tests, viz. written test, PET and driving skill test. We would also like to observe that possession of heavy duty vehicle driving licence was an eligibility criterion for the candidates to participate in the selection process for the post of Fire Operator and that it was not the selection criteria. Since erroneously/inadvertently, it was mentioned in the rely of the official respondents that it was to be a selection criterion, the Tribunal directed the official respondents to file an additional affidavit in which they have clearly explained the selection criteria, as noticed hereinabove.
In the conspectus of the discussions in the foregoing paras, we do not find any merit in these OAs and accordingly they are dismissed.
In view of this order, the interim orders dated 27.11.2017 (OA No.4149/2017) and 29.11.2017 (OA No.4182/2017) stand vacated.
There shall be no order as to costs.