Recruiting Agency Can't Be Compelled To Fill Available Posts Even When Persons Of Desired Merit Are Not Available: SC [Read Judgment]

The Supreme Court has allowed an appeal filed by Municipal Corporation of Delhi (MCD) and has held that it was at liberty to set minimum qualifying cut-off marks in exam for appointment of Assistant Teacher (Primary).

The factual matrix herein was that Delhi Subordinate Services Selection Board (DSSSB) had issued a notification for appointment of Assistant Teacher (Primary) in the schools of MCD. The said notification, by virtue of Clause 25, conferred discretion to DSSSB to fix the minimum qualifying marks for selection, in order to pick the best talent available. Further, Clause 26 provided that the marks obtained by a candidate in the written examination shall not be disclosed.

Subsequently, the Respondents herein did not qualify the exam and filed a writ petition before learned Single Judge of the Delhi High Court to quash Clauses 25 and 26 on grounds of arbitrariness. The writ petition filed by the Respondents was dismissed and was challenged by them before a division bench of the same court. The appeal succeeded and hence the Appellant herein pursued the present appeal.

The arguments made by Respondents in the original writ petition were that:

1) DSSSB was merely an agency to conduct the interviews/tests and prepare the panel. It was not empowered to lay down its own criteria for scrutinizing the eligible candidates by fixing minimum qualifying marks and was bound to follow the requisition given by MCD for undertaking selection process.

2) The action of DSSSB to refuse to give any details about the minimum marks which had been fixed by them unilaterally was arbitrary and discriminatory.

3) In view of the minimum marks cut-off criteria, the result of only 1638 out of the total 2348 advertised posts was declared. It was submitted that this process adopted by the DSSSB was contrary to the directions issued in the case of Kuldeep Singh and Ors. v. DSSSB & Anr., W.P.(C) Nos.5650¬51/2004, wherein it was held that the number of posts that are vacant against every category, and all of them should normally be filled up from the eligible candidates according to their standing. In that light, a direction was sought to the DSSSB to consider the case of the Respondents against the remaining vacancies without fixing minimum qualifying marks for selection.

The Appellant herein had contended that:

1) The method of recruitment, laying down the eligibility criteria, etc. were matters relating to the executive policy decisions and in the absence of any statutory rules/laws, the executive decisions were sustainable. Further, when MCD had no objection to the method adopted by DSSSB, the objections raised by the Respondent would be unsustainable.

2) The allegations of discrimination were not sustainable in as much as the Respondents had not demonstrated as to how the criteria of fixing the cutoff percentage was arbitrary when it was uniformly applied to all the candidates.

3) The decision in the case of Kuldeep Singh was sought to be distinguished and reliance was placed on State of Haryana v. Subhash Chandra Marwah & Ors., AIR 1973 SC 2216, to contend that it was open to the Government to fix a score which was higher than the one required for eligibility for the post with a view to maintain the high standard of competition.

The bench comprised by Justice R. Banumathi and Justice A. S. Bopanna found merit in the arguments raised by the Appellant. Addressing the first contention, it was held that 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 it was bound to discharge its obligation by fixing the criteria for declaring successful candidates. "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", the bench said.

On the second contention, the bench agreed with the decision taken by Single Judge of the high court that even if the criteria fixed was defective, the Courts were ordinarily not required to interfere as long as the same standard/yardstick had been applied to all the candidates and did not prejudice any particular candidate.

On the last contention, the court relied on Ashwani Kumar Singh v. U.P. Public Service Commission & Ors., (2003 ) 11 SCC 584, wherein it was held that it was not a rule of universal application that whenever vacancies exist, persons who were in the merit list per force had to be appointed.

It was further held that when the Respondents appeared for the examination they were fully aware of Clause 25 pertaining to minimum qualifying marks and despite that they participated in the process by appearing for the examination. Hence it was held that any grievance raised now would not merit consideration.

"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", the bench said.

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