W.P. (C) No. 9114/08 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) Nos. 9114/2008, W.P. (C) No. 809/2009, W.P. (C) No. 9139/2008, W.P. (C) No. 181/2009 and W.P. (C) No. 110/2009. Judgment reserved on:19.05.2009 % Judgment delivered on: 30.052009 Rashmi Dhara & Ors. ...... Petitioners Through: Mr. Manoj Ohri, Advocate and Mr. Sanjay Bansal, Advocate versus Govt. of NCT of Delhi & Ors. ..... Respondents Through: Mr. V.S.R. Krishna, Advocate Mr. Anjum Javed, Advocate Mr. Mohammed Sajid, Advocate Ms. Zubeda Begum, Advocate CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may Yes be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? KAILASH GAMBHIR, J. * W.P. (C) No. 9114/08 Page 2 of 32 1. This common order shall dispose of W.P. (C) No. 809/2009, W.P. (C) No. 9139/2008, W.P. (C) No. 181/2009 and W.P. (C) No. 110/2009. 2. In all these petitions the petitioners are seeking quashing of result dated 15.12.2008 declared by the Delhi Subordinate Service Selection Board in short referred as „DSSSB‟ and for restoring the result declared by DSSSB on 29.7.2008 in which all these petitioners were declared successful. The petitioners also seek their appointment based on 29.7.2008 result. 3. In the case at hand, there are two categories of petitioners, viz. petitioners who received their certificate of qualification from Delhi Nursing Council and those who received certificate of qualification from Haryana Nurses Registration Council. 4. To better elucidate, the prayer para of W.P.(C) No. 9114/2008 is reproduced as under: i) writ order or direction in nature of certiorari to quash the result dated 15.12.08 declared by respondent No. 3 on its website/display board for the post of Staff nurse; ii) writ order or direction in nature of mandamus directing the respondents to restore the result declared on 29.7.2008 as valid in W.P. (C) No. 9114/08 Page 3 of 32 which the petitioner were declared successful for the post of staff nurse; iii) issue a writ order or direction in nature of mandamus directing the respondents to recommend and grant appointment to the petitioners for the post of staff nurse (post code 170/07) in terms of result dated 29.7.08; 5. The brief facts of the case relevant for deciding the present petitions are as under:- That an advertisement bearing No. 09/07 was carried by respondent/DSSSB for 1225 vacancies for the post of staff nurses with post code 170/07. One of the requirements for the above posts was the certificate of General nursing and midwifery course. The Delhi Subordinate Services Selection Board or DSSSB invited applications form eligible candidates for various posts by way of an advertisement no. 09/2007 dated 7/1/2008. The petitioners herein submitted their applications for the post of „staff nurse‟ and „auxillary nurse (midwife)‟ in the Department of Health and Family Welfare in Govt. of NCT of Delhi. The petitioners were allocated roll numbers and they appeared in the exams also. Later, the respondents had published a list of selected candidates, who had qualified the written examination by W.P. (C) No. 9114/08 Page 4 of 32 publishing the result, which was displayed on the notice board on 11.7.2008. The respondents had published another list of selected candidates only with roll numbers by giving a publication in the newspaper on 29.7.2008, which contained names of those persons, who did not even qualify the preliminary examination and the names of some of the candidates were missing from the said list of 29.7.2008. Therefore, a writ petition bearing WPC No. 5731/2008 was filed by few of such candidates and court directed the respondents to come out with proper list, without any errors, of selected and unselected candidates. After complying with the said orders the respondents came out with the proper list of selected and unselected candidates and in this list the petitioners were found ineligible since they did not possess the requisite qualification as on the closing date for receipt of applications. Aggrieved with the same, the present petitions have preferred by the petitioners. 6. Counsel for the petitioners as far as candidates of Haryana are concerned in these petitions, submitted that these candidates appeared in examination and had submitted their respective applications before the cut off date i.e. 21.1.2008. Counsel further submitted that as on the cut off date, the result of the examination W.P. (C) No. 9114/08 Page 5 of 32 was still awaited. Counsel also submitted that all these petitioners had truthfully disclosed the fact of the said result being awaited in their respective applications. Counsel further submitted that the result in the said exam was declared in the month of March, 2008 and all the petitioners were successful in the said exams and were duly registered as nurses with the Nursing Council of Haryana in the first week of April, 2008. Counsel also submitted that all these candidates were issued admit cards based on their said applications and pursuant thereto all these candidates appeared in their exams for appointment on the post of staff nurse held on held on 3rd, 4th May, 2008. Mr. Bansal further submitted that the result of the written examination which was held on 3.5.2008 and 4.5.2008 was declared by the respondent on 29.7.2008. Drawing attention to the result, counsel submitted that all these petitioners were selected and recommended for appointment to the said post of nurse. Counsel thus submitted that roll numbers of all the petitioners are mentioned in the said result being the successful candidates and were recommended for appointment on the said post. The contention of the counsel for the petitioners is that the respondents would have declared the result of these candidates only after having fully scrutinized the application W.P. (C) No. 9114/08 Page 6 of 32 forms of the petitioners and on finding them meeting the eligibility criteria, then only would have declared the results After finding them fully eligible the respondent now cannot turn round to state that the applications of these petitioners were not properly scrutinized at that stage on account of lakhs of people having applied in response to the advertisement. Counsel further submitted that wherever the petitioners gave some wrong or incomplete information in their application forms or the necessary documents were not annexed by them along with the application, their roll numbers in the result were suffixed either with P-1 or P-2, as the case may be, and as far as the present petitioners are concerned, there was no such suffixation of P- 1 and P-2. Counsel further submitted that one Pinki and some other candidates had earlier approached this court in W. P. (C ) No. 573/2008 to challenge the said selection, list dated 29.7.2008 and in terms of interim order dated 8.8.2008 the selection list dated 29.7.2008 was directed to be stayed. Counsel further submitted that vide orders dated 19.11.2008 a consent order was passed by the court with certain directions to be complied with by the respondents and the said directions were primarily procedural in nature and could not have affected the final select list earlier announced by the W.P. (C) No. 9114/08 Page 7 of 32 respondent/DSSSB. The contention of the counsel for the petitioner is that infact the respondent had mis-construed the directions of this court given in the said order dated 19.11.2008 and declared the final result on 15.12.2008 although in the manner as was directed by the said court but after upsetting the earlier selected list. Counsel thus contended, that the respondent had no right to tinker with the final result as was announced earlier as no such direction was given by the court in the said order. Counsel further submitted that by its own conduct of acquiescence the respondent themselves have relaxed the condition of last cut off date by finally selecting the petitioners after finding them eligible for the post based on the information submitted by them in their application forms. Counsel further submitted that on the date of the examination i.e. 3.5.2008 the petitioners had completed the said GHM course and became fully eligible to compete with the other candidates. Counsel further submitted that respondent had no right to cancel the candidature of the present petitioners after the selection process was over and duly notified on 29.7.2008 whereby the petitioners were finally selected. W.P. (C) No. 9114/08 Page 8 of 32 7. Dealing with Haryana candidates, Ms. Zubeda Begum counsel for the respondent/DSSSB submitted that admittedly, these present petitioners were not eligible to apply for the post in question as on the cut-off date they had not completed the GNM course. Counsel thus stated that once the admitted position is that they had completed the said course by 18th March, 2008, although they had appeared in the said examination in November, 2007, therefore, they were totally ineligible even to apply for the said post, pursuant to the advertisement, wherein, clearly the cut off date of 21.1.2008 was spelt out. Counsel for the respondent further stated that DSSSB is a recruiting agency and has to act as per the mandate of the user department and the conditions as were advertised by the respondent/DSSSB were laid by the user department and not by the DSSSB. The contention of the counsel for the respondent is that in response to the advertisement large number of candidates running into lacs made applications and therefore, at the stage of the submission of the applications or even till the finalization of the result, it is humanly impossible to scrutinize each and every application to find out as to whether the requisite enclosures are attached with the application or the exact details have been given in the application or W.P. (C) No. 9114/08 Page 9 of 32 not. Counsel thus contended that once any such application is made by the candidate there is presumption that the candidate fulfills the criteria laid down in the advertisement. Counsel thus submitted that after the Preliminary scrutinization of all these applications final result is declared by the DSSSB but subject to the final satisfaction of the user department who can again scruitinize the applications of the selected candidates to find out as to whether the selected candidates fulfill the eligibility criteria as laid down in the advertisement or not. Ms. Begum further submitted that even after the final declaration of the result there is no embargo on the rights of the DSSSB to scrutinize the applications again to find out as to whether the applicants fulfill the laid down criteria or not. In support of her arguments, counsel for the respondent/DSSSB placed reliance on the judgments of the Supreme Court in State of U.P.Vs. Vijay Kumar Mishra, AIR 2003, SC 4411, Ashok Kumar Sorkar Vs. UOI & Ors. (2007) 4 SCC 54, State of Haryana & Ors. Vs. Anurag JT 1998 (9) SC 190, Bhupinder Pal Singh Vs. State of Punjab, AIR 2000 SC 2011 and the judgment of learned Single Judge of this Court in Ravita & Ors. Vs. MCD and Anr., W.P.(C) No. 6466/2008. Counsel for the respondent also placed reliance on W.P. (C) No. 9114/08 Page 10 of 32 the conditions laid down by the respondent DSSSB in the advertisement dealing with the cancellation of the candidates on the ground that if at any stage of selection process, it is found by the DSSSB that they do not fulfill the eligibility criteria, their candidature for the post applied can be cancelled by the Board or appointing authority. The said term dealing with the cancellation is referred as under: “CANCELLATION OF CANDIDATURE 1. The candidates applying for the posts should ensure that they fulfill all the eligibility conditions. Merely because a candidates has been allowed to appear at the examination will not be considered as a valid ground for his/her being eligible for the selection. If on verification at any time before or after the written examination or at any stage of selection process, it is found that they do not fulfill any of the eligibility conditions, his/her candidature for the post applied for, will be cancelled by the Board/Appointing Authority.” 2. Candidates are cautioned that they should not furnish any incomplete, false information or submit any document which is defective or fabricated or otherwise commit any act of misconduct in submitting the application forms or during the course of recruitment or fraudulently claim SC/ST/OBC etc. and other benefits. In case any such case is detected, the Board/Appointing Authority reserves its right to withdraw/cancel any selection and take legal action against the candidate concerned. The candidate may be permanently or for a specified period debarred W.P. (C) No. 9114/08 Page 11 of 32 from taking part in the recruitments conducted by the Board.” 8. Ms. Zubeda Begum counsel for the respondent DSSSB submitted that in the W.P.(C) No. 181/2009 in the application made by petitioner no.1 Yogesh Rani in column no. 16-B, she herself stated that she did not possess the requisite qualification as on the date of the receipt of the application. Similarly, as far as petitioner No. 2 Promila is concerned in the said column no. 16 of the application, she stated that „result awaiting‟, although in column no. 16-B, she wrongly tickmarked the box „Yes‟ to show that she possessed the essential qualification as on the date of receipt of the application. Counsel further pointed out that even petitioner no.3 Meena has wrongly tick marked the box against „yes‟ in column no. 16-B, although she did not possess the essential qualification. She also wrongly stated 70% marks secured in GNM course although by that time she did not obtain the diploma in the said course. 9. Counsel also pointed out that so far as the position of the petitioners in W.P.(C) No. 110/2009, is concerned the same is no different. Counsel stated that same is the position so far the petitioner in W.P.(C) No. 9139/2008 is concerned. Ms. Begum stated W.P. (C) No. 9114/08 Page 12 of 32 that in W.P. 7671/2005, 7679/2005, 7643/2005, incorrect information was submitted by the petitioners/candidates who did their diploma from Haryana. 10. Counsel for the respondent does not dispute this position that so far as the final result declared by the respondent on 15.12.2008 is concerned, the names of the petitioners are shown as per their merit of selection but they have been deprived only on the ground that they were not eligible having not qualified the said course as on the cut-off date. 11. As far as the candidates who did their GNM course from Delhi, Mr. Ohri, counsel appearing for the petitioners 1 to 17, 19, 23 to 34, 37 to 43 in W.P. (C ) No. 9114/2008, and Mr. Rana, counsel representing the petitioners 1 to 6 in W.P.(C) No. 809/2009 submit that as far as selection process is concerned, the DSSSB being the recruiting agency is the final agency and not the user department. The contention of the counsel for the petitioners is that job of the user department is to verify the authenticity of the documents and not to find fault with the selection process and on the eligibility of the candidates. Counsel for the petitioners further submitted that as far as Delhi candidates are concerned, it is not in dispute that they had W.P. (C) No. 9114/08 Page 13 of 32 completed three years course before the cut off date of 21.1.2008 as laid down in the advertisement but they were still to complete six months training. Counsel further submitted that the respondent no. 5 in the counter affidavit has taken a stand that as far as candidates for the academic year 2004-05 are concerned, who completed the said course of GNM in the year 2007, the requirement of six months training would not apply as by that time various State Nursing Councils had not implemented the said condition laid down by the All India Nursing Council. Counsel for the petitioners thus submitted that already the respondents had selected the candidates who had completed the said three years nursing course from Haryana and other states without undergoing the training and if the appointment to the petitioners is denied on the ground of non completion of the six months training course, then, it will create hostile discrimination against the petitioners vis-à-vis other candidates who had done their course from other States. Counsel for the petitioner has placed reliance on para 11 of the counter affidavit filed by respondent no.5. Counsel for the petitioner further stated that adequate vacancies are still available to accommodate the present petitioners and even fresh advertisement has been issued by W.P. (C) No. 9114/08 Page 14 of 32 the respondent to fill up 101 vacancies out of which 57 vacancies are for general category, 25 vacancies are reserved for OBC and 14 for SC and 5 for ST candidates. Counsel further stated that even 211 vacancies for OBC candidates as per the information given by the DSSSB are yet to be filled by the respondent. Counsel thus stated that petitioners can be easily accommodated against the said vacancies once they have already completed the said course even after undergoing the training period as on date. 12. Per contra, counsel for the respondents submitted that the eligibility of the Delhi candidate has to be seen as per the stipulated cut off date 21.1.2008 mentioned in the advertisement and if all conditions are satisfied, then only they can be considered for appointment. 13. I have heard learned counsel for the parties at considerable length. 14. The Article 226 empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purposes. Under the first component of the above provision a writ may be issued W.P. (C) No. 9114/08 Page 15 of 32 under the said Article only if it is prima facie clear that the aggrieved party has a fundamental right and that it has been infringed. Under the second component it may be issued only after finding that the aggrieved party has a legal right which entitles him to any of the aforesaid writs and that such right has been infringed. 15. A party to the lis cannot invoke the powers of judicial review of this court under Article 226 of the Constitution of India to seek enforcement of something which is legally not enforceable. 16. India is one of the most populated countries in the world, second after China. With a workforce of more than 440 million, a huge pool of English-speaking graduates and a fast-growing economy, the need for employment opportunities has increased drastically. The Government has a challenging task to bring about a better matching between the demand and the supply of work opportunities. Our constitution talks about equality in public employment. Equality means, equality among equals and not unequals. 17. The Delhi Subordinate Services Selection Board or DSSSB invited applications form eligible candidates for various posts by way of an advertisement no. 09/2007 dated 7/1/2008. The petitioners herein W.P. (C) No. 9114/08 Page 16 of 32 submitted their applications for the post of „staff nurse‟ and „auxillary nurse (midwife)‟ in the Department of Health and Family Welfare in Govt. of NCT of Delhi. The petitioners were allocated roll numbers and they appeared in the exams also. Later, the respondents had published a list of selected candidates, who had qualified the written examination by publishing the result, which were displayed on the notice board on 11.7.2008. The respondents had published another list of selected candidates only with roll numbers by giving a publication in the newspaper on 29.7.2008, which contained names of those persons, who did not even qualify the preliminary examination and the names of some of the candidates were missing from the said list on 29.7.2008. Therefore, a writ petition bearing WPC No. 5731/2008 was filed by few of such candidates and court directed the respondents to come out with proper list, without any errors, of selected and unselected candidates. After complying with the said orders the respondents came out with the proper list of selected and unselected candidates and in this list the petitioners were found ineligible since they did not possess the requisite qualification as on the closing date for receipt of applications. Aggrieved with the same, the present petitions have preferred by the petitioners. W.P. (C) No. 9114/08 Page 17 of 32 18. Before delving on the contentions raised by the counsel for the parties, it would be relevant to reproduce relevant portions of the advertisement, which are as under: ADVERTISEMENT NUMBER 09/2007 OPENING DATE FOR RECEIPT OF APPLICATIONS 07.01.2008 CLOSING DATE FOR RECEIPT OF APPLICATIONS 21.01.2008 (In case the closing date happens to be a public holiday the next working day will be the last date for receiving of applications) Applications are hereby invited from eligible candidates for recruitment to various posts of Health and Family Welfare Department of Government of NCT of Delhi. The detailed information regarding the post(s), number of vacancies, educational qualifications (as per recruitment rules provided by the user department), experience required, pay scale, age and mode of selection, procedure of submission of application is mentioned below. However, the applicants are required to go through the detailed advertisement and understand all the information and instructions carefully before applying for the post(s). GROUP ‘C’ POSTS: APPLICATION FEE Rs. 50/- PER APPLICATION “Staff Nurse W.P. (C) No. 9114/08 Page 18 of 32 NUMBER OF VACANCIES – 1225 (UR-618, OBC-331, SC- 184, ST-92). Out of the total vacancies shown above, 122 posts are reserved for Ex-Servicemen as per Govt. of India‟s instruction regarding interlocking reservation. Essential qualifications: 1. Matriculation or its equivalent 2. „A‟ Grade certificate in Nursing from a recognized institution. 3. Certificate in Midwifery. 4. Should be able to speak Hindustani fluently. Pay Scale: Rs. 5000-8000/- Period of Probation – Two years. Age Limit : Below 32 years (Relaxation in upper age limit for SC/ST-05 years and OBC-03 years, Departmental Candidates with 03 years (Relaxation in upper age limit for SC/ST-05 years and OBC-03 years, Departmental Candidates with 03 years continuous service who are in the same line or allied cadres-upto 40 years for General Category Employees and upto 45 years for ST & SC employees in accordance with the instructions/orders issued by the Central Govt.). ELIGIBILITY CONDITIONS 1. The candidate must be a citizen of India. 2. The educational qualifications, age, experience etc. as stipulated in SECTION –A shall be determined as on the closing date of receipt of applications i.e. 21.01.2008. 3. In respect of above mentioned posts, the requirement and the category as given above, in the advertisement shall be determined and selections be made. In accordance with the instructions/orders issued from time to time by the Competent/Notified Authorities. 4. A candidate must be in good mental and physical health and free from any physical defect, likely to interfere with the efficient discharge of duties. A candidate after such medical examination as may W.P. (C) No. 9114/08 Page 19 of 32 be prescribed by the competent authority, if found not to satisfy the requirements for the post(s), will not be appointed. Only such candidates as are likely to be considered for appointment will be medically examined.” CANCELLATION OF CANDIDATURE 1. The candidates applying for the posts should ensure that they fulfill all the eligibility conditions. Merely because a candidates has been allowed to appear at the examination will not be considered as a valid ground for his/her being eligible for the selection. If on verification at any time before or after the written examination or at any stage of selection process, it is found that they do not fulfill any of the eligibility conditions, his/her candidature for the post applied for, will be cancelled by the Board/Appointing Authority.” 2. Candidates are cautioned that they should not furnish any incomplete, false information or submit any document which is defective or fabricated