Full Judgment
G. George Paracken, J.
1. This Original Application is directed against the Respondent No. 1 - Delhi Subordinate Services Selection Board (`DSSSB’ for short) for their alleged arbitrary action in withholding the result of the applicant.
2. The undisputed facts in this case are delineated here. The Respondent No. 1-DSSSB, as per the requisition of Respondent No. 2 i.e. Delhi Jal Board (‘DJB’ for short), the user department, advertised two vacancies (SC-01 and OBC-01) for the post of Assistant Chemist under Post Code 152/03, vide Advertisement No. 04/2003. The applicant is a Lab. Technician already working in the DJB. The post of Assistant Chemist is the promotional post for Lab. Technician. The applicant having qualified for the aforesaid post, as per the Recruitment Rules, applied for the same under the OBC category. As per practice, the DSSSB carry out physical scrutiny of the application forms only at the time of final selection to the post and the admit card for appearing in the examination/test are generated on the basis of information filled by candidates in their applications. The written examination for the aforesaid post was conducted on 19.12.2004 and the applicant appeared in the examination against Roll No. 15215239 as OBC candidate. The result of the written examination was declared on 01.04.2005. Obtaining 35/80 marks the applicant was ranked 2nd under the OBC category. One Shri Pratap Singh Yadav who secured 37.75/80 marks was the 1st rank holder in the said category. Since there was only one vacancy under the OBC category, the documents of the 1st rank holder alone were scrutinized and found that he did not enclose the copy of OBC caste certificate in support of his claim. His candidature was, therefore, kept pending for clarification. After receipt of clarification, the DSSSB found that Shri Pratap Singh Yadav was not eligible for the aforesaid post and they closed recruitment process and the unfilled vacancy was reported back to the user department for inclusion, in the next requisition, vide their letter dated 12.12.2007. As a result, the applicant, though ranked 2nd in the merit yet he was not considered for the post as no panel was prepared/maintained by the DSSSB. According to the DSSSB, they do not prepare any panel as a matter of policy as such panels would entail never ending process and the recruitment process would never come to an end.
3. The applicant was unaware of the aforesaid developments. As the DSSSB has already declared the result of the examination on 01.04.2005, in the merit list, he was shown as second in rank and the first rank holder Shri Pratap Singh Yadav did not join the respondent No.2, he was waiting for the call for appointment. As he failed to get any response for a considerable time, he approached the respondent DSSSB on 21.10.2008 under the Right to Information Act, 2005 to find out the reasons as to why the DSSSB has not recommended his name for appointment. In response to the aforesaid query, the respondent DSSSB informed him by the Annexure `C’ letter dated 27.04.2010 that the recruitment under the said post code No. 0152/05 for the post of Assistant Chemist has been closed and one vacancy under the OBC category has been intimated to the user department for inclusion in the next requisition. According to the applicant, the DSSSB was not justified in closing the selection process as stated by them without nominating him who is the first eligible candidate in the merit list. He has also stated that Shri Pratap Singh Yadav should not have been indicated in the merit list. In any case, when he was not found eligible, the post should have been automatically offered to him who ranked 2nd in the merit list. He has, therefore, approached this Tribunal with this O.A, seeking the following reliefs:
“(a) direct the DSSSB respondent No. 1 to forthwith declare the result of the post of Assistant Chemist in OBC category (Post Code No. 0152/05) in DJB.
(b) pass any other order appropriate order or relief which this Hon’ble Tribunal deems fit and proper.”
4. The respondent - DSSSB has filed its reply. It has not denied the aforesaid facts as stated by the applicant.
5. We have heard the learned counsel for the parties and considered the issue involved in this matter carefully. At the outset, we may say that the stand of the DSSSB is violative of the principles of equality enshrined in Article 14 of the Constitution. Further, the said stand is self defeating and not in any way enhancing the effort of fulfilling their responsibilities as the premier recruiting agency of the Govt. of NCT of Delhi and the other organizations under it. In a competitive examination, in order to ascertain the relative merits of candidates, the competition has to be among the eligible candidates. Just because it is a laborious task, the DSSSB cannot ignore the basic requirements of preparing the eligibility list of candidates for consideration for direct recruitment In any selection process by the method of direct recruitment or by promotion, preparation of the list of eligible candidates is the first and foremost requirement. Allowing the ineligible candidates to compete with the eligible candidate is a process alien to the concept of fair play in recruitment/selection. If such a procedure is allowed, the very purpose of competition or selection is defeated and the process itself renders meaningless.
6. In the present case, absence of fairness in the selection procedure followed by the DSSSB is quite manifest. First, it did not identify the eligible candidates who shall be considered for participating in the selection process. As a result, it allowed the ineligible candidates to compete with the eligible candidates on the spacious plea that it is their practice not to scrutinize the applications before the merit list is prepared. Secondly, preparing the merit list of candidates having the same number of posts advertised by them on the plea that it is not the policy of the Government of NCT of Delhi to prepare any panel. The DSSSB is not realizing that because of its wrong and arbitrary practice of not preparing the eligibility list of candidates as a pre-requisite for affective competition, the policy of GNCTD of not maintaining the panel is adversely affected and large number of candidates fail to secure employment in time and in many cases denial of appointment itself.
7. For various reasons, the ineligible candidates may occupy a higher position in the merit list resulting in denial of appointment to even the first eligible candidate in the merit list. Such arbitrary selection procedure is not very glaring when the number of posts are to be filled up are in great number. But in a case like the present one, when the vacancy is only one, the faulty practice of the DSSSB became more visible and telling. It is altogether a different matter that the respondents are not maintaining any panel. If the user department would get candidates for all the requisitioned posts against the identified vacancies during the same recruitment process, such a policy of not maintaining the panel would not cause any harm to the candidates. In other words, what is expected of the DSSSB is that the required number of candidates shall be made available to the user department during the same recruitment process. The important factor is not the expediency and convenience in processing the applications by the DSSSB but it is the question of fairness. Once any ineligible candidates are allowed to compete with the eligible candidates as against the recruitment rules and find place in the merit list, the net result is that so many number of eligible candidates would get pushed out of the merit list. In that case, such a list cannot be even called a merit list as it contains many ineligible persons. Therefore, such procedure being adopted by the DSSSB is in violation of the principles of fundamental rights as available to candidates under Articles 14 and 16 of the Constitution of India.
8. In view of the above position, we allow this O.A. The respondent - DSSSB shall treat the applicant as the first eligible candidate who secured the first position in the merit list and accordingly it shall forward his name to the user department for appointment. Further, we observe that it is only because of the wrong practice being followed by the DSSSB, the applicant has been deprived of his rightful claim for appointment in time. Therefore, the applicant shall not be put to any disadvantage. Consequently, the respondents shall grant him the benefit of seniority in the post of Assistant Chemist from the due date. In this case since, no one else was appointed earlier and the result was admittedly declared on 01.04.2005, it would be fair and just that the applicant is considered as appointed as Assistant Chemist notionally after a month i.e. from 01.05.2005. The respondents shall also pass appropriate order accordingly. He shall also be paid the consequent arrears of pay and allowances within a period of one month thereafter. There shall be no order as to costs.