Sandeep Kumar vs Govt. of NCT of Delhi & Anr.

Learned counsel further submitted that the core issue in the present O.A. is whether the respondents could legally prepare separate merit lists for the same post after conducting a common examination under an identical evaluation process, merely because the vacancies were advertised under different notifications.

Learned counsel contended that such a procedure is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. Reliance is placed upon Tapan Neeraj v. Govt. of NCT of Delhi & Ors., O.A. No. 271/2012, decided on 22.05.2013, wherein the Tribunal held that a common merit list should be prepared for the same posts filled through a common examination, a view upheld by the Hon’ble Delhi High Court in W.P. (C) No. 814/2014, decided on 23.07.2014; Surendra Pratap Gautam v. Govt. of NCT of Delhi & Ors., O.A. No. 11/2017 decided on 14.02.2019; Radhey Shyam Singh & Ors. v. Union of India & Ors., (AIR 1997 Supreme Court 1610) decided on 09.12.1996, wherein the Hon’ble Supreme Court deprecated selection procedures resulting in less meritorious candidates being preferred over more meritorious candidates; and Amit Singhal & Ors. v. Chairman, DSSSB & Anr., decided on 26.05.2010, concerning common examinations and merit-based allocation.

Learned counsel for the applicant further distinguishes Shailendra Pathak v. Union of India & Ors., (LPA No. 501/2017) decided on 18.01.2024, on the ground that the controversy therein concerned different reliefs and does not, according to the learned counsel for the applicant, resolve the specific issue of separate merit lists following a common examination for the same post.

Learned counsel contended that the two advertisements pertained to separate recruitment notifications with independently notified vacancies, and the applicant cannot claim consideration against vacancies under Post Code 02/13 without having applied for the same.

Learned counsel for the respondents further submitted that the common written examination held on 31.08.2014 and the subsequent publication of marks on 17.07.2015 do not, by themselves, confer any right upon the applicant to be considered against vacancies advertised under a different post code.

Learned counsel further denied the applicant’s allegations of arbitrariness, discrimination and violation of Articles 14 and 16 of the Constitution by submitting that the applicant has failed to establish any enforceable right to appointment under Post Code 02/13.

Drawing our attention to the additional affidavit filed pursuant to the Tribunal’s order dated 14.01.2026, the learned counsel for the respondents further stated that the applicant’s Original Application form for Post Code 69/10 was weeded out on 15.07.2022 in accordance with the applicable record-retention policy and its non-availability was neither deliberate nor mala fide.

Learned counsel for the respondents placed reliance upon the decision rendered by the Hon’ble High Court of Delhi in Shailendra Pathak v. Union of India & Ors., (Supra).

The principal issue that arises for consideration is whether the applicant, having applied for the post of Librarian under Post Code 69/10 pursuant to Advertisement No. 02/2010, can claim consideration against the vacancies advertised under Post Code 02/13 pursuant to Advertisement No. 01/2013, merely on the ground that the respondents conducted a common written examination for both post codes on 31.08.2014.

It is an admitted position that the applicant had applied for the post of Librarian under Post Code 69/10 only and was issued a provisional admit card for the said post code. The respondents have categorically asserted that the applicant had not applied for the post advertised under Post Code 02/13. The applicant has not been able to establish, on the basis of the material placed on record, that submission of a separate application for Post Code 02/13 was dispensed with by the respondents or that his application under Post Code 69/10 was also liable to be treated as an application against Post Code 02/13. In the absence of such a factual or legal foundation, the applicant cannot claim an indefeasible right to be considered against vacancies for which he had not submitted an application in accordance with the prescribed recruitment procedure.

The contention of learned counsel for the applicant that both recruitment processes related to the same post and involved a common examination has been duly considered. However, the mere fact that a common examination was conducted for vacancies advertised under two different post codes does not, by itself, establish that the respondents were legally bound to prepare a single consolidated merit list or to consider every candidate against vacancies notified under both advertisements. The legality of the selection methodology has to be examined in the context of the respective advertisements, the applicable recruitment rules and the conditions governing candidature. In the present case, the applicant has not established that the respondents had undertaken to consider candidates who applied under Post Code 69/10 against vacancies under Post Code 02/13, irrespective of whether they had applied for the latter post code.

The applicant's reliance on the fact that he secured 100.25 marks, whereas a candidate securing 73 marks was selected under Post Code 02/13, does not, in isolation, advance his case. Comparative merit becomes relevant only amongst candidates who are eligible and entitled to be considered for the vacancies in question in accordance with the applicable recruitment conditions. Higher marks obtained in a common examination cannot, by themselves, confer candidature under a separate recruitment notification where the applicant has not established compliance with the prescribed application requirements. Consequently, the difference in marks, without establishing the applicant's legal entitlement to consideration under Post Code 02/13, cannot be treated as sufficient proof of discrimination.

We have also considered the reliance placed by learned counsel for the applicant on Tapan Neeraj v. Govt. of NCT of Delhi & Ors. (supra), whose decision was upheld by the Hon'ble High Court of Delhi in W.P. (C) No. 814/2014, decided on 23.07.2014, as well as Surendra Pratap Gautam v. Govt. of NCT of Delhi & Ors., (supra) and Radhey Shyam Singh & Ors. v. Union of India & Ors. (supra). The principles concerning fair selection, comparative merit and equality of opportunity laid down in the aforesaid decisions are well recognised. However, the applicability of those principles depends upon the material facts and the legal framework governing the recruitment in question. The applicant has not established that the factual and legal circumstances of the aforesaid cases are identical to the present matter, particularly in view of the respondents' specific objection that he never applied for Post Code 02/13. The principle that a more meritorious candidate should not be unfairly excluded cannot be divorced from the threshold requirement that the candidate must first establish his entitlement to participate in the selection against the relevant vacancies.

The respondents have also relied upon the judgment in Shailendra Pathak v. Union of India & Ors.(supra). The applicant has sought to distinguish the said judgment on the ground that the reliefs claimed therein were different. We are of the view that a judgment cannot be applied or distinguished merely by comparing the prayers made in the respective proceedings; its ratio has to be understood in the context of the issues decided and the material facts involved. Nevertheless, even independently of the said judgment, the applicant's claim in the present O.A. must fail if he is unable to establish a legal entitlement to consideration under Post Code 02/13 despite not having applied for the same.

As regards the non-availability of the applicant's original application form, the respondents have filed an additional affidavit stating that the relevant records were weeded out on 15.07.2022 in accordance with the applicable record-retention procedure. The material placed before us indicates that the non-availability of the application form has been attributed to the administrative weeding out of old records. In the absence of material demonstrating that the record was destroyed in violation of the applicable retention policy, or that the action was intended to frustrate the adjudication of the present O.A., no adverse inference can be drawn solely on account of the non-availability of the application form.

In view of the aforesaid discussion, we find that the applicant has failed to establish an enforceable right to consideration for appointment against the vacancies advertised under Post Code 02/13. We, therefore, find no sufficient ground to interfere with the impugned order dated 05.07.2017. Accordingly, the O.A. is dismissed.

Pending M.A.(s), if any, shall stand disposed of.

There shall be no order as to costs.