NON_REPORTABLE                  

  IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 5588 OF 2010

Municipal Corporation of Delhi         .…Appellant(s)

                 Versus

Surender Singh & Ors.          ….Respondent(s)

J U D G M E N T

A.S. Bopanna,J.               

1.     The respondent No.2 in the writ petition before the

learned Single Judge,   who was also respondent No.1 in

L.P.A.No.65/2008 and connected appeals before the

Division Bench of the High Court of Delhi is before this

Court in this appeal assailing the order dated 03.11.2008

passed in the said L.P.A.No.65/2008 and connected

appeals.   Through the said order dated 03.11.2008 the

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Division Bench has allowed the appeals in terms of the

directions issued therein.  In that regard the order dated

29.11.2007 passed by the learned Single Judge in W.P.

(C) Nos.16126­130/2006 was interfered and the Division

Bench has directed the appellant herein to appoint Shri

Surender Singh and Shri Rakesh Sharma the private

respondents herein to the post of Assistant Teacher

(Primary) in the  appellant  Municipal  Corporation.  The

appellant, therefore, is aggrieved by the same.

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

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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

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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

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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.  

5.  The writ petitioners, therefore, contended that the

process adopted by the DSSSB is contrary to the

directions issued in the case of Kuldeep Singh (supra).

The writ petitioners had also assailed the action of the

DSSSB in refusing to give any details about the minimum

qualifying marks which had been  fixed unilaterally,  by

contending that the same is arbitrary and discriminatory.

It was contended on behalf of the writ petitioners that the

action of the DSSSB   to limit the number of candidates

by introducing the cut­off marks has affected their right

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and, therefore, sought for direction to be issued in

exercise of the writ jurisdiction to fill up all the posts and

provide employment to the writ petitioners.   It was

contended therein that the DSSSB has to follow the

requisition given by MCD for undertaking selection

process and as such the DSSSB being merely an agency

to  conduct the interviews/tests  and  prepare the  panel

cannot lay down its own criteria for scrutinizing the

eligible candidates by fixing minimum qualifying marks.

The decisions in support of the contentions put forth on

behalf of the writ petitioners was also relied.

6. The DSSSB and the appellant herein who were the

respondents in the  said  writ  petitions  had  refuted the

contentions put forth and had contended that there was

no illegal and arbitrary exercise of power on the part of

the DSSSB for fixing the cut­off marks.  It was contended

that there is  no legally enforceable right  and the  writ

petition was not maintainable.  The appellant herein had

contended that the method of  recruitment  laying down

the eligibility criteria etc. are all matters relating to the

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executive policy decisions and in the absence of any

statutory rules/laws, the executive decisions remain

sustainable.  It  was contended by the appellant herein

that the allegations of discrimination was not sustainable

inasmuch as the petitioners had not demonstrated as to

how the criteria adopted by the DSSSB in fixing the cut­

off percentage was arbitrary when it was uniformly

applied to all the candidates who had appeared for the

examination and had not differentiated or discriminated

anybody selectively.  The decision in the case of Kuldeep

Singh (supra)  was sought to be distinguished.  In that

regard it was contended that the said judgment did not

debar the DSSSB from introducing certain methods for

achieving the objective of selecting the best talent

available and maintaining the high educational standard

so as to achieve good results of  the students to whom

such selected teachers would be teaching.   The decision

in the case of State of Haryana vs. Subhash Chandra

Marwah & Ors. AIR 1973 SC 2216 was relied upon to

contend that it is open to the Government to fix a score

which is higher than the one required for eligibility for the

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post with a view to maintain the high standard of

competition.  It was pointed out that the DSSSB has now

started publishing the minimum percentage of marks and

in the instant case also furnished the same in the

proceedings.

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

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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.  

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8.  In the background of implementation of the order

in the contempt proceedings the functions of the DSSSB

was also taken into consideration and it was held that

the legal status of the DSSSB was that of an agency to

conduct interviews/tests and prepare a select panel and

forward the same to the  User  Department.   The time

frame that had been set for completing the process was

also taken note of.   It was in that regard taken note by

the learned Single Judge that pursuant to such

directions the requisition was sent to the DSSSB, who in

turn issued the Advertisement No.1/2006 indicating the

posts advertised at 2348 (actual) and 1000 (panel)

vacancies.   The said  Advertisement in  Clause  25  also

indicated that DSSSB had full discretion to fix the

minimum qualifying marks for selection of different

categories of posts and pick up the best talent available.

The learned Single Judge was of the view that when the

MCD i.e., the User Department had no objection to the

method adopted by the DSSSB to fix the minimum

qualifying marks the same would be sustainable.  

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9. In that fact situation,  the learned Single Judge on

referring to the various decisions cited and on analysing

the same had taken note that the Courts have observed

that even if the criteria fixed is defective,  the Courts are

ordinarily not required to interfere as long as the same

standard/yardstick has been applied to all the

candidates and did not prejudice any particular

candidate.  In that light,  the learned Single Judge had

taken note that the 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 the DSSSB had to discharge its

obligation by fixing the criteria for declaring the

successful candidates. In that   process when the cut­off

percentage  was fixed,   all candidates obtaining  marks

above the percentage were indicated in the select list and

when the results were declared on 27.07.2006 the MCD

which is the User Department did not ask for further list

from the DSSSB due to which the panel for the remaining

vacancies  was not  operative.  Since the  DSSSB  is the

Selection Board, the laying down of the process for short

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listing the candidates cannot be faulted merely because

the User Department, namely, the MCD did not prescribe

the minimum qualifying marks.  

10.  The learned Single Judge had also taken note that

when the writ petitioners had appeared for the

examination, they were fully aware of Clause 25 in the

Advertisement which has provided the discretion to the

DSSSB  to fix the  minimum qualifying  marks  but they

had not  chosen to  challenge  the  said Clause.   In  that

view, it was noted that they had participated in the

process by appearing for the examination and only when

they had not qualified in the examination a grievance was

raised.   Hence it was held that such grievance does not

merit consideration.  In that circumstance, the learned

Single Judge was of the opinion that the prayer made in

the  writ  petition  is  not liable to  be considered.  While

arriving at such conclusion the learned Single Judge had

also kept in view the interest of the students who were

the ultimate stakeholders and any interference with the

recruitment process for selection of the Assistant

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Teachers undertaken by the DSSSB for the benefit of the

appellant  herein would ultimately  affect the interest  of

the students.  In that view the learned Single Judge had

dismissed the writ petitions.  

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

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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.  

12.  In that background the Division Bench had taken

note that in respect of the selections held in 2006, 63 out

of 1079 vacancies remained to be filled and the

appellants could be considered for appointment against

those vacancies.   In that regard, it was noticed that the

appellant  Nos.1  and  2 (Shri  Surender  Singh  and  Shri

Rakesh Sharma) in L.P.A.No.65/2008 and appellant No.1

in L.P.A.No.172/2008   (Poonam Bala) belonged to

unreserved category and had obtained 87, 88.75 and

88.25 per cent respectively out of  200 marks.  In that

background it was noticed that in the unreserved

category the marks obtained by the last selected

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candidate, namely, Praveen Kumar was on his obtaining

89.25 per cent.  Hence it was observed that the difference

in marks scored by the named three appellants and the

last selected candidate was extremely narrow.   The

Division Bench was, therefore, of the view that as there

were 63 vacancies which  were unfilled, the appellant

herein and the DSSSB were obliged to go down in the

merit list in  which case three  of the  appellants  would

qualify to be appointed.  To arrive at such conclusion the

Division Bench was of the view that the DSSSB had not

taken a conscious decision to fix the cut­off  marks for

examination held in 2006.   In that background the

Division Bench on  taking note  of the minimum marks

fixed during 2008 has adopted the same yardstick for the

year  2006 and directed the  appellants  herein  to  select

and appoint Shri Surender Singh and Shri Rakesh

Sharma.

13.  The learned counsel for the appellant herein while

assailing the order passed by the Division Bench sought

to contend that in order to  maintain the standard of

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education the cut­off was required to be fixed more than

the bare minimum that is required for qualifying and in

that light when a definite cut­off had been fixed and a

similar yardstick   had been applied in respect of all the

persons securing more than the said marks to be selected

and when all persons who obtained below the fixed

qualifying marks had not been included in the list,  there

is no discrimination or arbitrariness so as to call for

interference by the Division Bench in the process of

judicial review.   It is contended that the Clause 25

contained  in  the Advertisement  had provided  for fixing

the minimum qualifying marks and the appellant as the

User Agency did not find fault with the criteria adopted

by the DSSSB.   The Division Bench was not justified in

arriving at the conclusion that there was no conscious

decision taken.  

14. It is further contended that  when the  Division

Bench had accepted the criteria of prescribing minimum

marks in the selection process held in the year 2008, the

interference  made in the  present  manner  by fixing its

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own criteria for  selection would not  be justified.   It is

contended that it is not for the Courts to fix the minimum

standard required for selection of a candidate and more

particularly in the instant case when the teachers were to

be selected, if they do not satisfy the minimum qualifying

criteria the ultimate sufferers would be the students.  The

learned counsel has taken us through the reasoning

adopted by the learned Single Judge and in that

background has pointed out that the Division Bench did

not find fault with the same but was only carried away by

the fact that all the posts which were advertised had not

been filled up. Though 63 posts were available the

direction to accommodate some of the candidates who did

not qualify would not be justified.   

15. The learned counsel for the private respondents

seeks to sustain the order passed by the Division Bench.

In that regard it is pointed out that the Division Bench on

the earlier occasion in the same proceedings while

considering the matter had observed all these aspects on

18.08.2008  and the same  being taken  note  ultimately

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while disposing of the appeal on 03.11.2008 has arrived

at the  conclusion  that the  private respondents  can be

accommodated and in that view by not making it as a

precedent for others had granted the benefit.  The learned

counsel would also point out that the Division Bench had

taken note of the decision in the case of U.P. Jal Nigam

and Anr. Vs. Jaswant Singh & Anr. (2006) 11 SCC 464

to indicate   that even if the others who had participated

in the process of selection and were not selected

approaches the Court at this point in view of the relief

granted to the private respondents herein, they would not

be entitled to claim and as such the benefit granted to

the private respondents herein does not call for

interference.

16. The position noticed above would indicate that the

entire grievance with which the petitioners had

approached the High Court was on claiming to be

aggrieved by Clause Nos.25 and 26 contained in the

Advertisement No.1/2006 issued for recruitment of

Assistant Teacher (Primary) for the benefit of the

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appellant MCD.   In order to appreciate the same in its

correct perspective, it would be appropriate to take note

of the  impugned Clause Nos.25 and 26 which read as

hereunder:

“25. The Board has full discretion to fix minimum

qualifying  marks for selection for each  category

i.e. SC/ST etc. of post in order to achieve

qualitative selection and to pick up the best talent

available.

26. The marks obtained by the candidate in

written examination will  not be disclosed in any

case.”

From a perusal of the said  Clause it is noticed that

though under the very Clause there is no cut­off marks

specified, Clause 25 would, however, provide the full

discretion to the DSSSB to fix the minimum qualifying

marks for selection.  In the instant case,  keeping in view

that the recruitment was for the post of Assistant Teacher

(Primary) and also taking note of the orders passed by the

High Court in an earlier petition requiring the

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maintenance  of  minimum standards, the  DSSSB while

preparing the select  list had stopped the selection at a

point which was indicated as the cut­off percentage.  In a

circumstance where Clause 25 was depicted in the

Advertisement No.1/2006,  when the private respondents

herein and the other petitioners before  the High Court

were responding to the said Advertisement,  if at all they

had a grievance that the Clause is arbitrary and might

affect their right ultimately since no minimum marks that

is to be obtained has been indicated therein, they were

required to assail the same at that stage.   On the other

hand, despite being aware of the Clause providing

discretion to DSSSB to fix the minimum qualifying

marks, they have participated in the selection process by

appearing for the qualifying examination without raising

any protest.   In that circumstance, the principle of

approbate and reprobate  would apply and the private

respondents herein or any other candidate who

participated in the process cannot be heard to complain

in that regard.   

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17. It is no doubt true that the select list was

concluded at the particular cut­off point wherein the last

selected candidate  under the  unreserved category  had

obtained  89.25  per  cent.  The  said  decision  had been

taken by the DSSSB to ensure the minimum standard of

the teachers that would be recruited and the appellant

herein being the recruiting agency in any event, did not

have objection.  In any event,  it is not the case of the

petitioners that they had obtained higher marks than the

candidate who was shown as the last candidate in the

merit list.  If that was the position and when it is noticed

that the appellant and the other  writ petitioners had

secured lesser percentage of marks than the last

candidate included in the merit list, there could not have

been any further consideration whatsoever in the course

of judicial review.   To that extent, the learned  Single

Judge, from the observations as noticed above has kept

in view all  aspects of the matter and in that  light had

arrived at the conclusion that  no error  was committed

either by the DSSSB or the appellant herein.   18.

Having taken note of this aspect we further take note

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that the  consideration as  made by the  Division Bench

would indicate that even though no fault was found with

the impugned  Clause contained in the  Advertisement,

what has weighed   in the mind of the Division Bench is

only that even after  selecting the last candidate who had

obtained 89.25 per cent   out of the two papers for the

total marks of 200, there still remained vacant 63  posts

out of the total notified vacancies and the dossiers  of the

selected candidates were returned to the appellant herein

leaving the said 63 posts unfilled.   It is in that

circumstance, the Division Bench undertook the exercise

of making the further consideration by securing details

from the appellant.  In that regard the position was clear

that the private respondents regarding whom the

directions had been issued had secured 88.75 per cent

and 87 per cent out of 200 marks respectively and the

other candidate, namely, Poonam Bala who had

ultimately not pressed the writ appeal had obtained

86.25 per cent out of 200 marks.   Based on their

percentage, the private  respondents herein were at the

merit position of 1224 and 1447 respectively.  Since they

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were marginally below the last candidate in the select list

the Division Bench has proceeded to direct their

selection.   

19. On noticing the manner of consideration made by

the Division Bench, we are of the view that the Division

Bench  has exceeded the jurisdiction while exercising the

power of judicial review in the matter of selection process

by evolving its  own criteria  and substituting the  same

with the criteria adopted by recruiting agency.  We are of

the said view for the reason that the position of law is

well established that the recruiting agency cannot be

compelled to fill up all available posts even if the persons

of the desired merit are not available.  This Court in the

case of Ashwani Kumar Singh vs. U.P. Public Service

Commission & Ors.  (2003 ) 11 SCC 584     relied upon

by the learned counsel for the appellant had considered

these aspects and held that it is not a rule of universal

application that  whenever  vacancies  exist  persons  who

are in the merit list per force  have to be  appointed.  It is

held therein that if the employer fixes the cut­off position

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the same is not to be tinkered with unless  it  is totally

irrational or tainted with  malafides.  It was further stated

therein that the employer in its wisdom may consider the

particular range of selection to be appropriate.   The

decision of the employer to appoint a particular number

of candidates cannot be interfered with unless it is

irrational or malafide.  

20. In that background  when the  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.

21. In the instant facts the details were also available

before the Division Bench that in between the percentage

as obtained by the last selected candidate at 89.25 per

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cent and the percentage of marks obtained by the second

private respondent herein at 87 per cent there were 273

candidates in all in the said range.   Despite the

availability of the persons who had obtained higher

percentage of marks than the second private respondent

herein, the Division Bench erred in issuing direction to

select the private respondents herein.   The learned

counsel for the respondents no doubt sought to rely on

the decision of this Court in the case of U.P. Jal Nigam

& Anr.  (supra)  which was taken note  by the  Division

Bench to contend that though there were other

candidates who had obtained higher percentage of marks

than the private respondents herein, the direction issued

to select the private respondents herein would not affect

the interest of the appellant MCD since at this juncture

no other candidate can seek for relief, not having chosen

to agitate their rights   at an earlier point of time and in

that circumstance the relief granted to the private

respondents  being  an equitable relief  does  not  call for

interference.  

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22. In that regard we notice that the decision relied

upon would not be of assistance to the private

respondents herein.  The consideration made therein was

with regard to the employees who were entitled to

continue in service till the age of 60 years.   In that

circumstance, such of those persons who approached the

Court  while they  were in service  without accepting or

acquiescing to the retirement  were  granted the  benefit

while indicating that those who did not agitate their right

will not be entitled to the benefit.   In the instant case,

the very issue is relating to the recruitment into service

and the question is as to whether a candidate who does

not obtain the minimum required marks can be directed

to be selected while in the regular course he would not be

entitled to,   but a consideration is directed to be made

only  because  certain  posts  were  still vacant.   In  such

circumstance, the  candidates who had not  approached

the Court had not acquiesced any right available to them

but had not approached the Court only by realising the

position that they do not possess the merit more than the

last candidate whose percentage was taken as the cut­off

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percentage.   Therefore in that circumstance irrespective

of the fact whether the others would approach the Court

or  not, the  private respondents  herein could  not  have

been given the benefit to be selected by lowering the bar,

more so when it was evident that there were 40

candidates above the merit of  Shri Rakesh Sharma  and

263 candidates above the merit of Shri Surender Singh.   

23. 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 and would also cause injustice to the

other candidates who had participated in the process and

had secured a better percentage of marks than the

private respondents herein but lower than the cut­off

percentage and had accepted the legal position with

regard to the   employer’s right in selection process.   In

such event providing the benefit to the private

respondents herein by applying the principles laid in the

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case of  U.P. Jal Nigam  (supra) as done by the Division

Bench would not be justified.  

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.

……………………….J. (R. BANUMATHI)

……………………….J.                                               (A.S. BOPANNA)

New Delhi, August 01, 2019

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