At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE PRADEEP NANDRAJOG & THE HONOURABLE MS. JUSTICE PRATIBHA RANI
For the Petitioner: Ms. Zubeda Begum with Ms. Sana Ansari, Advocates. For the Respondents: R1, Ashok Agarwal with Ms. Nisha Tomar, Advocates.
Pradeep Nandrajog, J.
1. Having heard learned counsel for the parties, we are of the opinion that the impugned order dated February 02, 2012 does not warrant any interference.
2. Our reason for the same.
3. The user department i.e. Delhi Jal Board sent a requisition to the writ petitioner Delhi Subordinate Services Selection Board to issue an advertisement, complete the selection process and forward names to fill up two vacant posts of Assistant Chemists, one each reserved for a SC and an OBC candidate.
4. Proceeding to issue the advertisement and conducting a written examination on December 19, 2004 the result was declared on April 01, 2005, and since we are concerned with the vacancy reserved for the OBC candidate, we note that the Selection Board ranked one Pratap Singh Yadav who had secured 37.75/80 marks at number ‘1’. The first respondent, an OBC candidate, secured 35/80 marks and was at serial number ‘2’, but since only one vacancy for an OBC candidate was notified, the Selection Board scrutinized the various forms and certificates submitted by Pratap Singh Yadav to justify he being eligible for the post as an OBC candidate; the papers were found wanting and Pratap Singh Yadav was declared as an ineligible candidate. Surprisingly, the Selection Board forwarded nobody’s name to the user department i.e. Delhi Jal Board and on the contrary informed that the selection had lapsed. The vacancy was notified by the Selection Board to the Delhi Jal Board as ‘Not filled’.
5. Reason and logic demands that where an ineligible person is permitted to compete at a competitive examination and is at number ‘1’ for the only post, but upon realization that he was ineligible, the placement in the select list at the serial number in question has to be removed resulting in the next candidate moving up the ladder. On the facts of the instant case this would mean that respondent No.1 would be entitled to be treated as candidate at serial number ‘1’ of the panel.
6. But, Delhi Subordinate Services Selection Board did not do so.
7. Now, respondent No.1 had no information as aforesaid except that he was at serial number ‘2’ and that a candidate above him had secured marks above him for the only post reserved in the OBC category. But when he found that in the user department i.e. Delhi Jal Board, Pratap Singh Yadav had not been appointed as an Assistant Chemist, he sought information under the Right to Information Act and learnt as aforesaid. He immediately approached the Central Administrative Tribunal vide OA No.1493/2011 praying that directions be issued to appoint him as an Assistant Chemist in the Delhi Jal Board.
8. Whereas the Delhi Jal Board still requires a chemist and is willing to induct the respondent, it is the Selection Board which started opposing the claim of respondent No.1 by urging : (i) the petition/application before the Tribunal was barred by limitation; (ii) the recruitment process had been closed; and (iii) on December 12, 2007 the unfilled report had been sent by the Board to the user department.
9. From a perusal of the impugned decision it appears that the plea pertaining to the claim being barred by limitation, though pleaded in the reply filed but during arguments was not pressed before the Tribunal and this explains the Tribunal not having rendered any opinion thereon. It is settled law that a plea pertaining to the bar of limitation can be waived by a party. Besides, the cause of action would accrue to the respondent No.1 to sue when he learnt that the vacancy has gone abegging. In this connection it assumes importance to note that it was only on December 12, 2007 that the Selection Board intimated Delhi Jal Board that the recruitment was closed and the vacancy remained unfilled. This communication was admittedly not addressed to the respondent No.1 as pleaded by him in the Original Application when he found that nobody had been appointed as an Assistant Chemist in the OBC category he sought information under the Right to Information Act on October 21, 2008. He received a belated response on April 27, 2010, and suffice would it be to state that the Original Application was filed within a year thereafter. The limitation prescribed under Section 21 of the Administrative Tribunal’s Act is one year from when the cause of action accrued.
10. The plea that the recruitment has been closed and unfilled report submitted to the Delhi Jal Board on December 10, 2007 is neither here nor there for the reason this plea is not available to the petitioner which is simply a Staff Selection Board. The plea would be available, if at all, to Delhi Jal Board, which still treats the vacancy as ‘unfilled’ and is desirous of recruiting respondent No.1.
11. Before bringing the curtains down we wish to bring on record that the budget of the Delhi Subordinate Services Selection Board runs into crores of rupees every year. It is the duty of the Selection Board to ensure that as far as possible every vacancy notified to be filled up is filled up if eligible candidates are available. It does not sub-serve public interest if public post remains unfilled. We are finding in very second litigation being fought against the Selection Board that a panel is drawn up limited to the number of vacancies notified to the Selection Board by the Government of Delhi or autonomous bodies under the aegis of the Government of Delhi. The Selection Board does not scrutinize the certificates filed by the applicants before permitting them to take the competitive examinations. The result is that if 10 vacancies have to be filled up, a Select Panel of 10 is drawn up. Thereafter, the said 10 candidates are called for the certificate submitted by them to be verified. If any deficiency is found or noted in a certificate issued, the empanelled candidate is de-empanelled and the Board then takes a stand that since it has not drawn up a reserve list, it would not forward the name of the next selected candidate who is also above the qualifying mark limit prescribed. Not only does this breed litigation but even results in public posts remaining unfilled. As in the instant case, the Delhi Jal Board urgently requires an Assistant Chemist and we have respondent No.1 as a selected candidate but yet the post is not being filled up because the Selection Board is refusing to send the dossier of respondent No.1 to the Delhi Jal Board. We make it clear that the decision to fill up or not fill up the vacancy cannot be the decision of the Selection Board, which is merely a recruiting agency. The employer is not the Selection Board. The office or the department of the Government which sends the requisition to the Selection Board would alone have the right to determine whether or not to fill up the vacancy. In future the Selection Board would forward the names of all candidates who have secured marks above the eligible cut-off mark to the office or the department which has sent the requisition to the Selection Board to c
Please Login To View The Full Judgment!
onduct the examination. It would then be for the said department to decide whether or not it would like to have candidates in the wait list. This would ensure that it is the employer who would decide whether to fill up the vacancy from the wait listed candidate if the candidates in the select list are found either ineligible or do not respond to the letters offering appointment. 12. We concur with the view taken by the Central Administrative Tribunal that the Delhi Subordinate Services Selection Board shall forward the name of respondent No.1 to the Delhi Jal Board for being appointed as an Assistant Chemist. 13. The writ petition is dismissed 14. There shall be no order as to costs. CM No.10700/2012 Dismissed as infructuous.