Delhi Subordinate Services Selection Board v. Punish and Ors

PRADEEP NANDRAJOG, J. For orders see W.P.(C) No.915/2013. JUDGE / . . (PRATIBHA RANI) ,, JUDGE -·-· MARCH 07, 2013 dk/mm --·'· Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. * Ul'l llllGJH COURT 'OF DJELHJI AT NEW DJEJLHK % Date o[Decision: March 07, 2013 " A l'\1 UJl WJ)lo(C) 915/2013 & CM Noo1768/2013 DELHI SUBORDINATE SERVICES S!2LECTION BOARD .... Petitioner Ms.Zubecla Begum, Advocate with Ms.Sana Ansari, Advocate. Represented by: versus ll!\.RIOlVI AJ[-JLAWAT & ORS. .. ... Respondents Represented by: Mr.Ajesh Luthra, Advocate for R-L Ms.Anjana Gosain, Advocate for R-2 to R-4. WJ\(C) 5222/2012 & CM Noo10661/2012 SUBORDINATE SERVICES SELECTION BOARD ..... Petitioner Ms.Zubeda Begum, Advocate Represented by: with Ms. Sana Ansari, Advocate. versus PUNlSH & ORS. .. ... Respondents OORAlVU: Represented by: Mr.Aj esh Luthra, Advocate for R-1. HOl'l'BlLE lVKR, JUSTll.ClE PRADJEJEP NANDRAJOG MSo JUSTICE PRATIBHA RAN1I llilJJlAJJlJJL ULJP NANDRAJOG 1 J, Wl)(C) 5222/2012 g, 915/2013 Page 1 of 12' , I. Receiving at the first instance a requisition to fill up 26 posts of Ass istsnt Superintendent in the Central Jail Tihar, the Delhi Services Selection Board (DSSSB) commenced selection process by issuing the necessary advertisement inviting applications and informing th8t of the 26 posts to be filled up the distribution would be: (i) UR-I 3; (ii) SC-04; (iii) ST-02; and (iv) OBC-07. The advertisement was .':ubsequently modified when the Director General (Prison) intimated that nol 26 but 46 vac8ncies had to be filled up as follows:- (i) UR-25; (ii) SC-, 06; (iii) ST-03; and (iv) OBC-12. As per the advertisement, the age e-ligibility was between 18 years to 27 years; relaxable as per the Govermnent of India norms (v,rhich we are informed is 5 years) for SC, and OBC candidates. The selection process required eligible to J!rst take an objective paper: Part I, the same being to ist the candidates who could then take the analytical/descriptive papet-: Part lL A lower cutoff in the Pmi I paper was prescribed for SC, (\T and OBC candidate vis-a-vis the candidates in the unreserved category.

¶2Successful candidates after evaluating Pmi I paper were short! isted to take ,the Part II paper; and needless to state the ST, SC and OBC cand iclates were granted the benefit of relaxation in the upper age limit; [{;r those who claimed benei1t thereof. Similarly, while drawing up Lhe list of successful candidates at Part I examination, those who-did not the culoff mark prescribed in the unreserved category, but were as SC, ST and OBC candidates were given benefit of t-claxalion in the prescribed cutoff point. .-, _l. Completing the selection process after evaluating. the answer of the Pmt II examination, DSSSB notified the select panel VW(C) 5222/2CJ12 g, 915/2013 ., -- '/ consisting of 25 candidates in the unreserved category, 11 in the OBC catego[y, 6 in the SC category and 3 in the ST category; and we highlight the1t os against 12 vacancies notified for OBC candidates the select list d rmvn up was of only 11 candidates and 1 vacancy was kept pending clue to some dispute; nature whereof need not be noted by us as the same does 110t concern the instant dispute. The 3 lists are as under:- · llHZ CATEGORY --- l -' . ROLL l"fO NAME OF Tlffi CAT D.O.B. MARl<:. 1'-lo. CA:i"IDIDATE EXAM ··---·. ---- -- .. ----- ]_ 1213626 DEEP AK KUMAR URJOBC

31.08.83 RANA -·

¶2!212653 PARVEENKUMAR ur-JSC

17.06.82 - !213661* SUNIL UR

02.12.82 _ _:)- . -----· Lj_ 1212803 JI'TENDRA KUMAR lJR

15.03.83 PATEL ----·--c: _)-

6.

¶7g_

9.

¶10l' I.

¶12l J. I I :5. I (). .17. I -[ C)-

¶20r) 1 _{__, J'. 2:;_ 1213521 CHETNA GUPTA --------------- 1214561 KUMAR RAJESH ------ 1212107 NAVEENKUMAR 1212841 KAVINDER ----------------- ----- 1213029 RAJNISH KU1V1AR ---------- 1214589 DEEPAK SAROHA -- 1213361 VIKAS --------- 1210414 HARJOM --------------- 1212337 SANDEEP - - -------- ·------- 1213599 ROHIT lViAl\fN ------- 121161.4 SURJEET KUMAR -- ------------·--- ------ ---- 1211934 DEEPAK SHARMA -· .. ---------.-- - ··-- -- 1213538 ANUJKUMAR -- 12124 L 1 AKHILESH RATHORE ------· ------ ----· 1213099 PRADEEP - 1213362 HARJ KISI-IAN · SHARMA 1210325 lVIANISH MALIK 1212556 PRASI-IANT DAGAR ------ 12lil507 YOGESH \11/I'(C) 5222/2012 8, 915/2013 UR

09.09.81 115 --- lJR

28.02.82 UR

26.06.85 UR

17.05.84 lJR 1 0.08;83 lJR

26.09.81 UR

24.04.83 113 ' UR

19.01.82 URJOBC

17.09.81 URIOBC

08.09.84 UR

08.08.82 UR

03.02.87 UR/OBC

02.06.82 UR

01.01.82 : UR

05.08.82 lJR/EX.

01.09.71 lJR

27.09.85 Ill UR

21.05.87 1JR

06.03.83 - ., ":: ).i/ ..

¶5------------------ -------n-- l 2 l 2205 HARIOlvr AHLA W AT . SOlVIKANT KHARE UP'- UR

05.07.87

05.07.84 I *Provisional subject to verification of signatures which has slight variations. Copies of O:MR Answer sheets containing cleclar::1tion \Vritten by the candidates in their own ht:mdvvriting are placed in their respective dossiers. ()BC CATEGORY: 6""1 \.) l''-J ------ ---'·

¶0IROLLNO NAlV[E OF TI-llE CAT D.O.B. CANDIDATE lVl:AR K JV1AIN () ,:) . C) I c I ---- 01212583 --- 01210216 -- 01213571 -- 01210226 012liJQ22 ·------- -- - --------------- 01214419 . ----------. 01214064* -. 01212723 ---- ----- 01211935 ---- ) . 01212533 01214051 ----- --------- ---- EXA lVl: ANIL KU1V1AR OBC

28.09.80 NEERAJ Kill\1AR OBC

25.03.80 PARAMVEER OBC

07.03.81 NA VEEN DAI-HY A OBC

25.12.79 lVIUKESI-I OBC/DE

01.05.75 PRADEEP KUMAR OBC

29.11.79 MAl\11\J SUR£NDER KUMAR OBC

01.04.83 DAGAR LAXl\1I GOLA OBC

23.03.80 YOGENDER SINGH OBC

07.06.83 (YOGil'IDER SINGH) SANJAY KUl\1AR OBC

01.12.81 PU1\JISH OBC

10.11.82 ------ *Provisional subject to verification of signatures which has slighL variations. Copy of OMR Answer sheet containing declaration written by the candidates in his own handwriting is p [aced in dossier of the candidate. S C;\TEGORY: OF TI-IE CAT D.O.B. lV!:ARJ( [DATE J'V!:AIN EXAM SL.I ROLL NAME l'\lo. NO CAND -- -- WI'(C) 5222/2012 & 915/2013 - ., ., -- --- - ------- I. cJ . ., _).

¶4c ) ·---- ·- --- --- 01213461 .. ---- 0121 L'].O 10 01210693 ------ 01214075 ----- 01214627 ---- . 1:). - 01210063 --. ------- -------- ::;· l. Y: .. --· ---··--- ROLL ]\]o. 1"10 -- !. 01212959 --------- 01213350 ') -- 01212745 'I .J. --------· DHARlVI:ENDRA SINGH MAURY A (TOJVIAR) DEEPAK KU1\1AR UDAl RAJ SINGH RAY-IUL KARDAM GI-IANSHY AM DAS JAGDISI-I N AlVI:E OF TI-DE CANDIDATE DI-IARAl\!1 SINGH MEENA CI-IET RAlVI: MEENA AKASH KlJlViAR lVI:EENA sc

08.05.79 sc

19.04.79 sc

20.11.82 sc

04.09.80 sc

22.11.80 sc

31.07,85 CA D.O.B. MAFJ( T JVlAIN E1(AM ST

15.10.85 ST

10.07.83 ST

02.02.87 Taking a stand that while drawing up the select panel, itwdvcrtently it \.Vent unnoticed that candidates who had obtained same numbct· oC marks required them to be placed in the order of merit with rcrerence to the elate of birth; the elder being ranked above the younger, ll)SSSB claimed that 6 candidates in the unreserved category had nbtc1inecl l 11 marks and that the list pe1iaining to the unreserved required to be redrawn as under:- ---····----- -- Sl_/. NAlVI:E OF THE No. NO CANDID.AcTE 01214507 Yogesh 01213645 Somkant Kl1are ------·-· 01210325 l\/Lanish lVI:alik 01211209 l\!Ianjeet l .

2.

3.

¶45 .. ·-· ------------ 01212556 Prasar3-t Dagar ··-· WI'(C) 5222/2012 & 915/2013 CA D.O.B. rv1ARJ( T l\IIAIN EXAM UR

06.03.83 UR-21 UR

05.07.84 UR-22 UR

27.09.85 UR-23 UR

04.05.86 UR-24 UR

21.05.87 UR-25 I -- . '•':: 0 1212205 Hariom Ahlawat UR

05.07.87 No vacancy c _) Sin1ilarly, noting that 7 OBC candidates had obtained the s;:1me t.e. I 09 marks and that while drawing up the list it got omitted to be 1wlecl that saicl 7 candidates had to be placed in the order of merit with rc:ference lo their elate of bi1ih, the list was revised and the 7 OBC cdncl idates were ranked as under:- - SL. ROLL -NAME OF THE CAT D.O.B. No. 1"[0 CANDIDATE -------------- --------- I. 012!0716 Ram Babu OBC

05.08.77 ------·----· ------

¶2012\i\580 Rajpal Singh · OBC

01.04.82 ---- --·--- -------- ., 01211779 Subodh Gahlot OBC

09.05.82 .J. -----·-------

¶401214547 1\llanoj Rana OBC

01.08.82 -----------

¶501214051 Punish OBC

10.11.82

¶601210722 Sarita Yadav OBC

08.12.82 ---------

¶7Ol2l0354 Pradeep OBC

19.07.83 -- -------- -·- --- l11 Lhis manner, Punish got relegated from serial No.ll to serial No.l5 in Lhe OBC category.

¶6Due to aforesaid redrawing of the lists, ·Hariom Ahlawat, the l'irsL respondent in vV.P.(C) No.915/2013 who was at serial No.24 in the c:ltegory o C unreserved candidates, having obtained 111 marks got pushed out from the merit list as he could not find a place in the merit list o 25 candidates on account of the fact that he was born on July 05, 1987 :mel was the youngest amongst the 6 candidates in the unreserved c:1tegory \Nho had obtained 111 marks. Similarly, Punish who had obtai ned 1 09 marks and found himself at serial No.11 of the original list drawn up got relegated to serial No.15 in the list ofOBC candidates and hence out 0 r the select list VW(C) 5222/2012 & 915/2013 Page 5 of 12'. .

¶713ut before the lists were redrawn, since DSSSB intimated to Lhe Director General (Prisons) the names of the selected candidates as originally dr8wn up, the Director General (Prisons) started issuing letters o!Tering appointment to the candidates and the result was that both I llmiorn Ahlawat and Punish accepted letter o±Iering appointment and joined. By the time on June 26, 2009, DSSSB requested Director enernl (Prisons) to keep in abeyance the select list for-vvardecl, :1ppointments had already been made. The lists were later up redrawn on December 21, 2009. I) 0 .. The result was that Hariom Ahlawat and Punish faced threat ol· losing their job and both approached the Central Administrative 'l't-ibun;:d questioning the lists being redrawn. () Deciding OA No.3429/2010 filed by Hariom Ahlawat the Tribunnl round, and we quote from the order of the Tribunal:- '' In their counter reply dated 22.12.2010, the DSSSB has suhtrzitted the revised 1nerit list in respect of candidates v;ith morks I I 1 as per their age. The list shovvs a total 11 condidotes,· the ncnne of the applicant figuring pt serial No.1()_ In this list, four candidates have actually been shoH'n crs selected under the reserved category (Sl.l, 2, 3 ond 5) Sl. No.8, l\1anjeet whose name ha_d been recornmended os a substitute for Hariom Ahlawat hod the opp/jconL not continued in service. As per the renzarks co!urnn, he had 'left'_ Toking this into account, the rank of the oppl icant which initially was sixth on leaving of l\1/anjeet ii corne down to fifth. Further an1.ong the candidates ,<.,'e/ec!ed, two (Shri Anuj Kumar and Shri Sandeep) had not joined/had resigned within six months respectively. As per Shri Ajesh Luthra, the learned counsel for the applicant, out of the originally notified 25 vacancies under the UR coter;ory, still two more vacancies remained unfilled, ngoirz,c,'i which the appotntmetzt of the applicant could be sustoined" WI'(C) 5222/2012 & 915/2013 .,,:": 1 (). The factual content of the aforesaid paragraph were not rell.ttecl hell.1re us. I I. A !lowing the claim of Hariom Ahlawat, the view taken by the Tribunal is that all notified vacancies had required to be filled up and thus, subject to a candidate obtaining the minimum eligible cutoff marks, right to appointment accrued to such candidates who would find a place in Lhe cCJtegory of sppointed candidates if candidates higher up in the merit d icl not _join or whose papers were found to be wanting.

¶12Allowing O.A.No.3433/20 10 filed by Punish vide order dated November 16, 2011, the reasoning of the Tribunal is similar to its earlier decision INhere the Tribunal has noted that discounting those OBC cancliclates who bad either not joined or whose papers were found to be noL in order, Punish would find a place amongst 11 candidates.

¶13Chsllenge to the two decisions is by DSSSB; and VIe highlight not the Director General (Prisons), who seems to be happy for Ll1e rez1son the population of prisoners, both unde1irials as well as convicts i 11 the Central Jail Tihar is far in excess of the capacity of the prison and thus he needing all posts to be filled up. !4. The grievance to the impugned decisions by DSSSB, is that it had drawn up a select panel of only 25 candidates in the unreserved

1.::1Legory :mel I I in the OBC category and thus the effect of the impugned decisions is Lhe elongation of the select list.

¶15We hsve repeatedly passed orders that it is the Service !Department which has to take the decision whether to maintain a ·wait list 1!1· noL. The DSSSB is merely a recruiting agency and is not the competent <tulhorily to decide whether or not a wait list has to be maintained. We h:1ve heen nolicing in the past that since a large number of candidates INP(C) 5222/2012 & 915/2013 -- '/ ., ' for a Jc\v posts, clue to shmiage of manpower, DSSSB does not :-:;crutinizc the 3pplicatlons with reference to-the documents annexed by the cnncliclates with respect to the eligibility conditions being_ fulfilled. After lhe selection process is over, DSSSB scrutinizes the ce1iificates filed by 1 he candid ales \Nith their application forms. As in the instant case, where of 3 OBC candidates was rejected on account of not producing the relevant OBC certificate, we found in other cases, similar things happening pertaining to not only OBC candidates but even ST, SC :1:; well as General category candidates, for the latter, issues pertaining to eligibility as of the cutoff date arose, rendering them ineligible. 16 . No\N, as in the instant case, if only 11 OBC candidates are .<)hot·Llisted in the merit list and thereafter it is found that 3 are ineligible, we see no justification for the Board to only forward names of 8 c;l!lcl idcrles to the Service Depmime11t. Ineligible candidates being removed, subject to eligibility and qualifYing, 3 more candidates have to be included in the select panel and names forwarded to the Service Departn1ent. Besides, we find that considerable time, sometimes up to .as ' many <:ls 2 years lapses, between the elates when applications are invited Jl·om eligible candidates and results declared. We have been noticing that in l21rge number of such cases many candidates obtain gainful employment elsewhere and notwithstanding finding a place in the select list do not even respond to the letters offering appointment. Since select list is restricted to the number of vacancies, upon said candidates not responding Lo Lhe letters offering appointment, the posts remain unfilled. 1 7. Crores of rupees are spent on the establishment of the SSD. Crorcs of rupees are spent by DSSSB while issuing public l!ln'(C) 5222/2012 &, 915/2013 -- '! •,1; -- '/ -"- ---· <Jcivertisements inviting applications. Simple logic d.emancls that maximum benefit of revenue spent should be attempted to be achieved. I 8. It hardly needs any emphasis to state that public interest is served when public posts are filled up. Public interest suffers when public posts rernain vacant The law of the land is that nobody has a vested right I:D be etppointed even when a vacancy is notified and the person has but subject to the exception that there· should be a good justification to not fill up the vacancy. Meaning thereby, filling up of a noli eel v8cancy is the norm and not to fill up the same is the exception. Since admittedly, both Hariom Ahlawat . and Punish' 1 had q Ul.lli lied at Lhe main exam and some persons above them in the redrawn 111eri t I isL have either not joined or were found ineligible, and as a result v:1ce:1ncies are available to be filled up by said two persons; noting further 1 hat both of them were issued letters offering appointment as per the first I i:1L drawn up, we find no infirmity in the view taken by the Tribunal on tl1c: given f3cts of the case. We note that Hariotn Ahlawat had been o !'ferecl 8ppointment in CISF which he did not accept because he found the instant employment. Equities are in his favour. Similarly, Punish had heen oCh::recl a job by HDFC Bank which he did not accept having ohl<.1i ned the instant employment. ?0. Before closing we would like to observe,· with reference to Lhc facts of the instant case, that JDSSSB is i1ot following a logical step wise process to draw up the select list. 2 I. Since as per law, if those who seek benefit of re.c:;ervation, ubi:Zlin marks high up in the merit list and would find a place while c·.ompeLing with unreserved/general category candidate have to be listed in the; unreserved category, while drawing up the lists DSSSB has to take WP(C) 5222/2012 & 915/2013 -- '/ ' -- '/ l c:Jre 0 r the si lu8tion where a candidate, pertaining to eligibility, competes nn the strength of being a SC/ST or OBC candidate. For example, if the upper age qualification requirement is 27 years, relaxable by 5 years for candidate, any person who takes benefit of relaxation has to compete in his/het· category. Similarly, as in the instant case, pertaining to l"arL I ex3mination, qualifying marks for unreserved category were more LhEm those in the reserved category. Those who earned the right to parti ci pale at the Part II selection process after availing the benefit of being in the reserved category; with reference to the qualifYing marks obtained at the Part I examination have likewise to retain their character as reserved category candidates and cannot merge with the unreserved C8ndic13tes irrespective of the marks they obtain at the Part n To put it in simple words. A reserved category candidate D·1ust join the r:Jce and complete the same without availing any benefit of ing 111 the reserved category if the name of the. candidate has to be in the merit list pe1iaining to the unreserved category.

¶22Noting that in the instant case, as a result of the reVISIOn r:: 11 ected in the select list when error committed of not placing candidates with equal marks in the descending order with reference to the date of hirth was noted, the two respondents before us would not find themselves \iVilhin the nrst 25 and 11 candidates respectively in the list ofunreservecl <Incl OBC csnclidates, but having obtained marks above the cutoff limit ctnd enough number of candidates above them either being later on found l(l be ineligible or did not respond to the letter offering appointment or joining <mel resigning within a month or two resulting in the notified in i:he t\VO categories not being filled up, we do not disturb the J'i mtl cl i reclions issued in the two orders passed by the Tribunal. WI'(C) 5222/2012 [', 015/2013 ·:: ., \ y "·-.. J - rfhe \Vrit petitions are accordingly dismissed but Without any tm::lers as to costs. IVUARCTIJ i[])7j 2i[])]3 dklu111lllllll WI)(C) 5222/2012 & 915/2013 \ (PRADEEP NANDRAJOG) JUDGE _>cfr ."' (JPRATJIBHA RANJI) JUDGE ,; ·,•.: ',

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date o[Decision: March 07, 2013 W.P.(C) 5222/2012 & CM No.10661!2012 DELHI SUBORDINATE SERVICES SELECTION BOARD ..... Petitioner Represented by: Ms.Zubeda Begum, Advocate with Ms. Sana Ansari, Advocate. versus PUNISH & ORS. . .... Respondents CORAM: ·Represented by: Mr.Ajesh Luthra, Advocate for R-1. HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI