Full Judgment Text
NON_REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5588 OF 2010
Municipal Corporation of Delhi .…Appellant(s)
Versus
Surender Singh & Ors. ….Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
1. The respondent No.2 in the writ petition before the
learned Single Judge, who was also respondent No.1 in
L.P.A.No.65/2008 and connected appeals before the
Division Bench of the High Court of Delhi is before this
Court in this appeal assailing the order dated 03.11.2008
Signature Not Verified
passed in the said L.P.A.No.65/2008 and connected
Digitally signed by
MAHABIR SINGH
Date: 2019.08.01
18:18:56 IST
Reason:
appeals. Through the said order dated 03.11.2008 the
Civil Appeal No.5588/2010 Page 1 of 28
Division Bench has allowed the appeals in terms of the
directions issued therein. In that regard the order dated
29.11.2007 passed by the learned Single Judge in W.P.
(C) Nos.16126130/2006 was interfered and the Division
Bench has directed the appellant herein to appoint Shri
Surender Singh and Shri Rakesh Sharma the private
respondents herein to the post of Assistant Teacher
(Primary) in the appellant Municipal Corporation. The
appellant, therefore, is aggrieved by the same.
2. The factual matrix herein is that the Delhi
Subordinate Services Selection Board (“DSSSB” for short)
had issued an Advertisement bearing No.1/2006 for
appointment of Assistant Teacher (Primary) in the
schools of the appellant herein, namely, the Municipal
Corporation of Delhi (“MCD” for short). The number of
vacancies advertised was at the first instance at 3348
which were under the different categories, namely,
Unreserved, Scheduled Caste, Scheduled Tribes, Other
Backward Classes which included ExServicemen and
Physically/ Visually Challenged. Through the
Civil Appeal No.5588/2010 Page 2 of 28
corrigendum dated 14.05.2006 the number of vacancies
was modified to 2348 under the said different categories.
The candidates selected through the said process was to
be sent to the appellantMCD on getting the request from
them through the Competent Authority. The DSSSB had
also the right to fix the period for which the panel would
be valid.
3. In the Mode of Selection indicated in the
Advertisement No.1/2006, a discretion was provided to
the DSSSB to fix the minimum qualifying marks for
selection for each category in order to achieve qualitative
selection and to pick up the best talent available. The
same was contained in Clause 25, while Clause 26
provided that the marks obtained by the candidates in a
written examination will not be disclosed in any case.
The written examination was accordingly conducted on
02.07.2006. The Advertisement no doubt did not specify
any cutoff qualifying marks in the said examination. On
completion of the process of the written examination, the
merit list was published but neither the private
Civil Appeal No.5588/2010 Page 3 of 28
respondents herein nor the other petitioners/appellants
before the High Court had qualified. It is in that light the
private respondents herein filed the Writ Petitions bearing
Nos.16126130/2006. Certain other candidates who did
not qualify had also filed similar writ petitions. Hence all
these writ petitions were clubbed and considered
together.
4. The prayer in the writ petition was to quash Clause
Nos.25 and 26 contained in the Mode of Selection in
Advertisement No.1/2006 which provided for fixing the
minimum qualifying marks for selection. The contention
in the writ petition was that the same was violative of the
directions contained in the judgment dated 18.02.2005
passed in W.P.(C) Nos.565051/2004 titled Kuldeep
Singh and Ors. vs. DSSSB & Anr. In that light direction
was sought to the DSSSB, both to consider the case of
the writ petitioners against the remaining vacancies
without fixing minimum qualifying marks for selection
and to publish the results of all the vacancies and to fill
up the same. In view of the cutoff mark being
Civil Appeal No.5588/2010 Page 4 of 28
introduced, the result of 1638 posts was declared out of
the total posts advertised. The writ petitioners contended
that at such stage when they contacted the DSSSB and
the appellant herein regarding nonpublishing of the
select list for all the posts advertised they were informed
that they had fixed certain minimum marks as per their
discretion contained in the Advertisement and that they
had found only 1638 candidates achieving the said
minimum marks and therefore the results of only 1638
candidates were declared.
5. The writ petitioners, therefore, contended that the
process adopted by the DSSSB is contrary to the
directions issued in the case of Kuldeep Singh (supra).
The writ petitioners had also assailed the action of the
DSSSB in refusing to give any details about the minimum
qualifying marks which had been fixed unilaterally, by
contending that the same is arbitrary and discriminatory.
It was contended on behalf of the writ petitioners that the
action of the DSSSB to limit the number of candidates
by introducing the cutoff marks has affected their right
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and, therefore, sought for direction to be issued in
exercise of the writ jurisdiction to fill up all the posts and
provide employment to the writ petitioners. It was
contended therein that the DSSSB has to follow the
requisition given by MCD for undertaking selection
process and as such the DSSSB being merely an agency
to conduct the interviews/tests and prepare the panel
cannot lay down its own criteria for scrutinizing the
eligible candidates by fixing minimum qualifying marks.
The decisions in support of the contentions put forth on
behalf of the writ petitioners was also relied.
6. The DSSSB and the appellant herein who were the
respondents in the said writ petitions had refuted the
contentions put forth and had contended that there was
no illegal and arbitrary exercise of power on the part of
the DSSSB for fixing the cutoff marks. It was contended
that there is no legally enforceable right and the writ
petition was not maintainable. The appellant herein had
contended that the method of recruitment laying down
the eligibility criteria etc. are all matters relating to the
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executive policy decisions and in the absence of any
statutory rules/laws, the executive decisions remain
sustainable. It was contended by the appellant herein
that the allegations of discrimination was not sustainable
inasmuch as the petitioners had not demonstrated as to
how the criteria adopted by the DSSSB in fixing the cut
off percentage was arbitrary when it was uniformly
applied to all the candidates who had appeared for the
examination and had not differentiated or discriminated
anybody selectively. The decision in the case of Kuldeep
Singh (supra) was sought to be distinguished. In that
regard it was contended that the said judgment did not
debar the DSSSB from introducing certain methods for
achieving the objective of selecting the best talent
available and maintaining the high educational standard
so as to achieve good results of the students to whom
such selected teachers would be teaching. The decision
in the case of
State of Haryana vs. Subhash Chandra
Marwah & Ors . AIR 1973 SC 2216 was relied upon to
contend that it is open to the Government to fix a score
which is higher than the one required for eligibility for the
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post with a view to maintain the high standard of
competition. It was pointed out that the DSSSB has now
started publishing the minimum percentage of marks and
in the instant case also furnished the same in the
proceedings.
7. The learned Single Judge while taking note of the
rival contentions has at the outset taken into
consideration the decision in the case of Kuldeep Singh
(supra) on which extensive reliance was placed on behalf
of the writ petitioners. It was noticed that in the said
case in respect of the Advertisement of the year 2002 for
421 vacancies, the Advertisement did not contain any
stipulation pertaining to minimum qualifying marks that
should be obtained. The learned Single Judge noticed
that in the said case the DSSSB and the MCD were at
variance and each one had taken a different stand and
the controversy was sought to be put at rest by
indicating as to how the vacancies should be dealt with
by the DSSSB as well as the User Department, namely,
MCD. In that light the option available to the DSSSB to
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carry forward the vacancies which had occurred was
referred to. The directions issued was extensively quoted
and in that background it was noted, pursuant to the
said judgment and order dated 21.04.2006 passed in
C.C.P.No.370/2003 wherein the Court took notice of the
writ petition filed by the petitioner therein pointing out
that the quality of education being imparted in the
schools run by the MCD and the Government of NCT of
Delhi was not up to the mark and thus a Public Interest
Litigation bearing W.P.(C)N0.1611/2001 was filed to state
that the children studying in the said schools were not
well equipped for future. What was considered therein
was also the chronic shortage of teachers in MCD schools
and that the recruitment process was not being initiated
within time and wherever initiated would be involved in
procedural formalities. In that view the MCD and
Government of NCT of Delhi were directed to complete
the exercise identifying the number of vacant posts and
notifying the same to DSSSB, the recruiting agency by
the first week of April of each year.
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8. In the background of implementation of the order
in the contempt proceedings the functions of the DSSSB
was also taken into consideration and it was held that
the legal status of the DSSSB was that of an agency to
conduct interviews/tests and prepare a select panel and
forward the same to the User Department. The time
frame that had been set for completing the process was
also taken note of. It was in that regard taken note by
the learned Single Judge that pursuant to such
directions the requisition was sent to the DSSSB, who in
turn issued the Advertisement No.1/2006 indicating the
posts advertised at 2348 (actual) and 1000 (panel)
vacancies. The said Advertisement in Clause 25 also
indicated that DSSSB had full discretion to fix the
minimum qualifying marks for selection of different
categories of posts and pick up the best talent available.
The learned Single Judge was of the view that when the
MCD i.e., the User Department had no objection to the
method adopted by the DSSSB to fix the minimum
qualifying marks the same would be sustainable.
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9. In that fact situation, the learned Single Judge on
referring to the various decisions cited and on analysing
the same had taken note that the Courts have observed
that even if the criteria fixed is defective, the Courts are
ordinarily not required to interfere as long as the same
standard/yardstick has been applied to all the
candidates and did not prejudice any particular
candidate. In that light, the learned Single Judge had
taken note that the DSSSB had been specially created by
the executive for the purpose of selecting the appropriate
candidates to fill up the vacancies in the User
Department and the DSSSB had to discharge its
obligation by fixing the criteria for declaring the
successful candidates. In that process when the cutoff
percentage was fixed, all candidates obtaining marks
above the percentage were indicated in the select list and
when the results were declared on 27.07.2006 the MCD
which is the User Department did not ask for further list
from the DSSSB due to which the panel for the remaining
vacancies was not operative. Since the DSSSB is the
Selection Board, the laying down of the process for short
Civil Appeal No.5588/2010 Page 11 of 28
listing the candidates cannot be faulted merely because
the User Department, namely, the MCD did not prescribe
the minimum qualifying marks.
10. The learned Single Judge had also taken note that
when the writ petitioners had appeared for the
examination, they were fully aware of Clause 25 in the
Advertisement which has provided the discretion to the
DSSSB to fix the minimum qualifying marks but they
had not chosen to challenge the said Clause. In that
view, it was noted that they had participated in the
process by appearing for the examination and only when
they had not qualified in the examination a grievance was
raised. Hence it was held that such grievance does not
merit consideration. In that circumstance, the learned
Single Judge was of the opinion that the prayer made in
the writ petition is not liable to be considered. While
arriving at such conclusion the learned Single Judge had
also kept in view the interest of the students who were
the ultimate stakeholders and any interference with the
recruitment process for selection of the Assistant
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Teachers undertaken by the DSSSB for the benefit of the
appellant herein would ultimately affect the interest of
the students. In that view the learned Single Judge had
dismissed the writ petitions.
11. The writ petitioners were, therefore, before the
Division Bench in L.P.A.No.65/2008 and connected
appeals. The Division Bench during the course of its
proceedings on 18.08.2002 had recorded the factual
position relating the number of vacancies and the
manner in which the candidates from the panel was to be
sent to the MCD. The contention that had been put forth
before the learned Single Judge to assail Clause 25 in the
general instructions of the Advertisement was taken note
and the Division Bench in any event did not find fault
with the consideration made by the learned Single Judge
relating to the minimum qualifying marks being fixed.
However, the Division Bench had observed that there are
only eight appellants before the Court in the different
appeals that were filed before it as against the number of
unfilled vacancies which was much more. It was also
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taken note that subsequent examinations had been held
in April, 2008 to fill up the unfilled vacancies of 2006 as
well as newly created vacancies. It was also noted that
there are several changes in the new examination and
Clause 6 of the general instructions for April, 2008
examination provided the minimum qualifying marks in
the manner as extracted by the Division Bench in its
order.
12. In that background the Division Bench had taken
note that in respect of the selections held in 2006, 63 out
of 1079 vacancies remained to be filled and the
appellants could be considered for appointment against
those vacancies. In that regard, it was noticed that the
appellant Nos.1 and 2 (Shri Surender Singh and Shri
Rakesh Sharma) in L.P.A.No.65/2008 and appellant No.1
in L.P.A.No.172/2008 (Poonam Bala) belonged to
unreserved category and had obtained 87, 88.75 and
88.25 per cent respectively out of 200 marks. In that
background it was noticed that in the unreserved
category the marks obtained by the last selected
Civil Appeal No.5588/2010 Page 14 of 28
candidate, namely, Praveen Kumar was on his obtaining
89.25 per cent. Hence it was observed that the difference
in marks scored by the named three appellants and the
last selected candidate was extremely narrow. The
Division Bench was, therefore, of the view that as there
were 63 vacancies which were unfilled, the appellant
herein and the DSSSB were obliged to go down in the
merit list in which case three of the appellants would
qualify to be appointed. To arrive at such conclusion the
Division Bench was of the view that the DSSSB had not
taken a conscious decision to fix the cutoff marks for
examination held in 2006. In that background the
Division Bench on taking note of the minimum marks
fixed during 2008 has adopted the same yardstick for the
year 2006 and directed the appellants herein to select
and appoint Shri Surender Singh and Shri Rakesh
Sharma.
13. The learned counsel for the appellant herein while
assailing the order passed by the Division Bench sought
to contend that in order to maintain the standard of
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education the cutoff was required to be fixed more than
the bare minimum that is required for qualifying and in
that light when a definite cutoff had been fixed and a
similar yardstick had been applied in respect of all the
persons securing more than the said marks to be selected
and when all persons who obtained below the fixed
qualifying marks had not been included in the list, there
is no discrimination or arbitrariness so as to call for
interference by the Division Bench in the process of
judicial review. It is contended that the Clause 25
contained in the Advertisement had provided for fixing
the minimum qualifying marks and the appellant as the
User Agency did not find fault with the criteria adopted
by the DSSSB. The Division Bench was not justified in
arriving at the conclusion that there was no conscious
decision taken.
14. It is further contended that when the Division
Bench had accepted the criteria of prescribing minimum
marks in the selection process held in the year 2008, the
interference made in the present manner by fixing its
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own criteria for selection would not be justified. It is
contended that it is not for the Courts to fix the minimum
standard required for selection of a candidate and more
particularly in the instant case when the teachers were to
be selected, if they do not satisfy the minimum qualifying
criteria the ultimate sufferers would be the students. The
learned counsel has taken us through the reasoning
adopted by the learned Single Judge and in that
background has pointed out that the Division Bench did
not find fault with the same but was only carried away by
the fact that all the posts which were advertised had not
been filled up. Though 63 posts were available the
direction to accommodate some of the candidates who did
not qualify would not be justified.
15. The learned counsel for the private respondents
seeks to sustain the order passed by the Division Bench.
In that regard it is pointed out that the Division Bench on
the earlier occasion in the same proceedings while
considering the matter had observed all these aspects on
18.08.2008 and the same being taken note ultimately
Civil Appeal No.5588/2010 Page 17 of 28
while disposing of the appeal on 03.11.2008 has arrived
at the conclusion that the private respondents can be
accommodated and in that view by not making it as a
precedent for others had granted the benefit. The learned
counsel would also point out that the Division Bench had
taken note of the decision in the case of U.P. Jal Nigam
(2006) 11 SCC 464
and Anr. Vs. Jaswant Singh & Anr.
to indicate that even if the others who had participated
in the process of selection and were not selected
approaches the Court at this point in view of the relief
granted to the private respondents herein, they would not
be entitled to claim and as such the benefit granted to
the private respondents herein does not call for
interference.
16. The position noticed above would indicate that the
entire grievance with which the petitioners had
approached the High Court was on claiming to be
aggrieved by Clause Nos.25 and 26 contained in the
Advertisement No.1/2006 issued for recruitment of
Assistant Teacher (Primary) for the benefit of the
Civil Appeal No.5588/2010 Page 18 of 28
appellant MCD. In order to appreciate the same in its
correct perspective, it would be appropriate to take note
of the impugned Clause Nos.25 and 26 which read as
hereunder:
“25. The Board has full discretion to fix minimum
qualifying marks for selection for each category
i.e. SC/ST etc. of post in order to achieve
qualitative selection and to pick up the best talent
available.
26. The marks obtained by the candidate in
written examination will not be disclosed in any
case.”
From a perusal of the said Clause it is noticed that
though under the very Clause there is no cutoff marks
specified, Clause 25 would, however, provide the full
discretion to the DSSSB to fix the minimum qualifying
marks for selection. In the instant case, keeping in view
that the recruitment was for the post of Assistant Teacher
(Primary) and also taking note of the orders passed by the
High Court in an earlier petition requiring the
Civil Appeal No.5588/2010 Page 19 of 28
maintenance of minimum standards, the DSSSB while
preparing the select list had stopped the selection at a
point which was indicated as the cutoff percentage. In a
circumstance where Clause 25 was depicted in the
Advertisement No.1/2006, when the private respondents
herein and the other petitioners before the High Court
were responding to the said Advertisement, if at all they
had a grievance that the Clause is arbitrary and might
affect their right ultimately since no minimum marks that
is to be obtained has been indicated therein, they were
required to assail the same at that stage. On the other
hand, despite being aware of the Clause providing
discretion to DSSSB to fix the minimum qualifying
marks, they have participated in the selection process by
appearing for the qualifying examination without raising
any protest. In that circumstance, the principle of
approbate and reprobate would apply and the private
respondents herein or any other candidate who
participated in the process cannot be heard to complain
in that regard.
Civil Appeal No.5588/2010 Page 20 of 28
17. It is no doubt true that the select list was
concluded at the particular cutoff point wherein the last
selected candidate under the unreserved category had
obtained 89.25 per cent. The said decision had been
taken by the DSSSB to ensure the minimum standard of
the teachers that would be recruited and the appellant
herein being the recruiting agency in any event, did not
have objection. In any event, it is not the case of the
petitioners that they had obtained higher marks than the
candidate who was shown as the last candidate in the
merit list. If that was the position and when it is noticed
that the appellant and the other writ petitioners had
secured lesser percentage of marks than the last
candidate included in the merit list, there could not have
been any further consideration whatsoever in the course
of judicial review. To that extent, the learned Single
Judge, from the observations as noticed above has kept
in view all aspects of the matter and in that light had
arrived at the conclusion that no error was committed
either by the DSSSB or the appellant herein. 18.
Having taken note of this aspect we further take note
Civil Appeal No.5588/2010 Page 21 of 28
that the consideration as made by the Division Bench
would indicate that even though no fault was found with
the impugned Clause contained in the Advertisement,
what has weighed in the mind of the Division Bench is
only that even after selecting the last candidate who had
obtained 89.25 per cent out of the two papers for the
total marks of 200, there still remained vacant 63 posts
out of the total notified vacancies and the dossiers of the
selected candidates were returned to the appellant herein
leaving the said 63 posts unfilled. It is in that
circumstance, the Division Bench undertook the exercise
of making the further consideration by securing details
from the appellant. In that regard the position was clear
that the private respondents regarding whom the
directions had been issued had secured 88.75 per cent
and 87 per cent out of 200 marks respectively and the
other candidate, namely, Poonam Bala who had
ultimately not pressed the writ appeal had obtained
86.25 per cent out of 200 marks. Based on their
percentage, the private respondents herein were at the
merit position of 1224 and 1447 respectively. Since they
Civil Appeal No.5588/2010 Page 22 of 28
were marginally below the last candidate in the select list
the Division Bench has proceeded to direct their
selection.
19. On noticing the manner of consideration made by
the Division Bench, we are of the view that the Division
Bench has exceeded the jurisdiction while exercising the
power of judicial review in the matter of selection process
by evolving its own criteria and substituting the same
with the criteria adopted by recruiting agency. We are of
the said view for the reason that the position of law is
well established that the recruiting agency cannot be
compelled to fill up all available posts even if the persons
of the desired merit are not available. This Court in the
case of Ashwani Kumar Singh vs. U.P. Public Service
(2003 ) 11 SCC 584 relied upon
Commission & Ors.
by the learned counsel for the appellant had considered
these aspects and held that it is not a rule of universal
application that whenever vacancies exist persons who
are in the merit list per force have to be appointed. It is
held therein that if the employer fixes the cutoff position
Civil Appeal No.5588/2010 Page 23 of 28
the same is not to be tinkered with unless it is totally
irrational or tainted with malafides. It was further stated
therein that the employer in its wisdom may consider the
particular range of selection to be appropriate. The
decision of the employer to appoint a particular number
of candidates cannot be interfered with unless it is
irrational or malafide.
20. In that background when the DSSSB and the
appellant herein were concerned with the quality of
teachers to be recruited and had fixed a merit bar to
indicate that the persons obtaining the percentage of
marks above such bar only would be selected, the
employer cannot be forced to lower the bar and recruit
teachers who do not possesses the knowledge to the
desired extent merely because certain posts had
remained vacant which in any event would be carried
over to the next recruitment.
21. In the instant facts the details were also available
before the Division Bench that in between the percentage
as obtained by the last selected candidate at 89.25 per
Civil Appeal No.5588/2010 Page 24 of 28
cent and the percentage of marks obtained by the second
private respondent herein at 87 per cent there were 273
candidates in all in the said range. Despite the
availability of the persons who had obtained higher
percentage of marks than the second private respondent
herein, the Division Bench erred in issuing direction to
select the private respondents herein. The learned
counsel for the respondents no doubt sought to rely on
the decision of this Court in the case of
U.P. Jal Nigam
& Anr. (supra) which was taken note by the Division
Bench to contend that though there were other
candidates who had obtained higher percentage of marks
than the private respondents herein, the direction issued
to select the private respondents herein would not affect
the interest of the appellant MCD since at this juncture
no other candidate can seek for relief, not having chosen
to agitate their rights at an earlier point of time and in
that circumstance the relief granted to the private
respondents being an equitable relief does not call for
interference.
Civil Appeal No.5588/2010 Page 25 of 28
22. In that regard we notice that the decision relied
upon would not be of assistance to the private
respondents herein. The consideration made therein was
with regard to the employees who were entitled to
continue in service till the age of 60 years. In that
circumstance, such of those persons who approached the
Court while they were in service without accepting or
acquiescing to the retirement were granted the benefit
while indicating that those who did not agitate their right
will not be entitled to the benefit. In the instant case,
the very issue is relating to the recruitment into service
and the question is as to whether a candidate who does
not obtain the minimum required marks can be directed
to be selected while in the regular course he would not be
entitled to, but a consideration is directed to be made
only because certain posts were still vacant. In such
circumstance, the candidates who had not approached
the Court had not acquiesced any right available to them
but had not approached the Court only by realising the
position that they do not possess the merit more than the
last candidate whose percentage was taken as the cutoff
Civil Appeal No.5588/2010 Page 26 of 28
percentage. Therefore in that circumstance irrespective
of the fact whether the others would approach the Court
or not, the private respondents herein could not have
been given the benefit to be selected by lowering the bar,
more so when it was evident that there were 40
candidates above the merit of Shri Rakesh Sharma and
263 candidates above the merit of Shri Surender Singh.
23. Any undue sympathy shown to the private
respondents herein so as to direct their selection despite
not possessing the desired merit would amount to
interference with the right of the employer to have
suitable candidates and would also cause injustice to the
other candidates who had participated in the process and
had secured a better percentage of marks than the
private respondents herein but lower than the cutoff
percentage and had accepted the legal position with
regard to the employer’s right in selection process. In
such event providing the benefit to the private
respondents herein by applying the principles laid in the
Civil Appeal No.5588/2010 Page 27 of 28
case of U.P. Jal Nigam (supra) as done by the Division
Bench would not be justified.
24. In that background the order dated 03.11.2008
passed by the Division Bench in L.P.A.No.65/2008 is not
sustainable and the same is accordingly set aside.
25. The appeal therefore succeeds and is accordingly
allowed with no order as to costs.
……………………….J.
(R. BANUMATHI)
……………………….J.
(A.S. BOPANNA)
New Delhi,
August 01, 2019
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