Municipal Corporation Of Delhi vs Surender Singh .

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.

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 Civil Appeal No.5588/2010 Page 8 of 28 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.

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 Civil Appeal No.5588/2010 Page 13 of 28 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.

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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.