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DEVENDER YADAV AND ORS vs THE SECRETARY DELHI SUBORDINATE SERVICES SELECTION BOARD AND ORS

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$
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision:- 24.01.2024

+ W.P.(C) 10718/2016
DEVENDER YADAV AND ORS ….. Petitioner
Through: Mr.Vivek Kumar Tandon with Ms.Prerna Tandon, Ms.Kanika Rathore, Mr.Darshanik Narang, Advs.

versus

THE SECRETARY DELHI SUBORDINATE SERVICES SELECTION BOARD AND ORS ….. Respondent
Through: Mr.Nitesh Kumar Singh, Adv for Ms.Avnish Ahlawat, S.C.

CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR

REKHA PALLI, J(ORAL)
1. The present writ petition under Article 227 of the Constitution of India seeks to assail the order dated 12.08.2016 passed by the learned Central Administrative Tribunal in O.A.4572/2014. Vide the impugned order, the learned Tribunal has rejected the O.A. filed by the petitioners by holding that they had incorrectly filled up column 13 of their application form for the vacancy year 2013, which application form was to be filed in the OMR format.
2. Before dealing with the rival submissions of the parties, we may note the brief factual matrix as emerging from the record.
3. In 2013, the respondents issued an advertisement inviting applications for various posts in the Department of Education (GNCTD) and in the Municipal Commission of Delhi for the vacancy years 2012 & 2013. In response to the advertisement, the petitioners applied for the post of Trained Graduate Teachers (hereinafter TGT) in different subjects for both years. The application form for the year 2013 was required to be filled in the OMR format, which the petitioners duly filled. However, upon scrutiny, their applications for the year 2013 were rejected by the respondents on the ground that as per the bubbling done by them in column 13 thereof, qua their qualifications, they were not possessing the requisite qualification for the posts on the closing date. Subsequently, on the respondents inviting objections, the petitioners submitted their representations, which were rejected.
4. Aggrieved thereby the petitioners, who claim to possess all the requisite qualifications, approached the Tribunal. Upon consideration of their O.A., the Tribunal as an interim measure, allowed the petitioners to appear in the examination held on 28.12.2014, in which examination it was later found, as recorded in the order of this Court dated 06.10.2022, they have all secured higher than the cut off marks. However, even though the petitioners were granted interim permission to appear in the examination, the learned Tribunal, after completion of pleadings, rejected the O.A.s preferred by them by holding that they having failed to fill up certain bubbles in the OMR sheets, their applications were rightly rejected. Being aggrieved the petitioners have approached this Court by way of the present petition.
5. In support of the petition, learned counsel for the petitioners submits that column 13 of the OMR, which the respondents claim had been incorrectly filled by them, has already been held to be defective by the Tribunal vide its order dated 18.01.2016 passed in O.A. 202/2023 and O.A. 203/2023. This decision he submits was upheld not only by this Court, but also by the Apex Court. He, therefore, contends that once column 13, of which the petitioners are said to fall foul of, in itself has been held to be defective, the respondents could not have rejected the candidature of the petitioners on the ground of having filled up column 13 incorrectly. He, therefore, prays that since the petitioners have scored higher than the cut off marks, they should not be deprived appointment to the said posts for which they have all admittedly obtained more than the cut off marks. He, therefore, prays that the impugned order be set aside and the respondents be directed to appoint the petitioners with notional seniority from the date when the last candidate was appointed in response to Advt. No.01/2013 as directed by this Court vide its order dated 17.11.2017 passed in W.P.(C)3460/2017.
6. On the other hand, learned counsel for the respondents supports the impugned order and while not denying that column 13 of the OMR sheet has already been held to be defective not only by the learned Tribunal but also by this Court and the Apex Court, again reiterates that the petitioners are not entitled to any benefit which were granted to the applicants in O.A.202/2015 and O.A.203/2015 as the petitioners wrongly filled some parts of column 13 in the OMR application form. He, therefore, prays that the writ petition be dismissed.
7. Having considered the submissions of learned counsel for the parties and perused the records, we are constrained to express our anguish in the manner in which the respondents have sought to oppose the present petition despite being well aware that column 13 of the OMR application for the relevant year i.e. 2013 has already been held to be defective on account of a faulty design. In this regard it would be apposite to refer to para 27, 28 & 29 of the decision of the Tribunal in O.A.202/2015 and 203/2015, which reads as under :-
“27. We, therefore, find merit in the argument of the applicants of these two OAs, which has gone un-rebutted by the respondents, that there was indeed a mistake in the manner in which Column-13 of the OMR sheets were framed, and read by the Scanner.
(emphasis supplied)

28. One more aspect of these cases is that when the respondents had combined the examination in respect of 2012 and 2013 advertisements together, and the applicants could have applied against only one of the two Post Codes, either the Post Code in the year 2012 advertisement, or the Post Code in the year 2013 advertisement, it has so happened that both these applicants had filled up and downloaded the OMR sheets by logging in 2012 ID, and have then mistakenly filled up in Column-11 the Post Code relevant for the Post Code of 2013 advertisement. It appears to us that the OMR sheets, as presently prepared by the respondents, do not have proper columns for sufficient information to be provided by the applicants in such cases where separate applications have been filled up in respect of the two years, and the two Post Codes, and it is the respondents who had then later on decided in respect of the examination in respect of those two Post Codes in two different years to be held together. This is one more reason why the applicants are entitled to reliefs as prayed for by them.

29. Therefore, agreeing with the judgment of the Coordinate Bench in OA No. 1966/2013 and six other connected cases Ms. Deepika and Anr. vs. Govt. of NCT of Delhi (supra), and in particular Para-18 thereof, and relying upon the very same judgment of Union Public Service Commission vs. Gyan Prakash Srivastava (supra), which was relied upon by the Coordinate Bench, we have also come to the conclusion that the Column-13 of the OMR sheet in respect of essential qualification of the applicants was framed in such a manner that it could have been filled by different candidates in different manner, and did not require all the bubbles to be filled up and marked, and the only objections to the candidature of the two applicants before us, as seen from the legend associated with the rejection of their application, as reproduced above, has been in respect of their having filled up Column-13 of the OMR sheets wrongly. Therefore, because of the faulty design of the said Column No.13, and incorrect instructions regarding the manner it was to be filled up, the action of the respondents in rejecting the applicants’ OMR sheets only on the ground of wrong filling up of that Col. No.13 is set aside.”

8. From a perusal of the aforesaid, it is evident that Column 13 of the OMR application form, issued by the respondents for various posts in the Department of Education as also the MCD in 2013, was held to be defective by the learned Tribunal, which order was upheld by this Court in WP(C) No. 3460/2017 and further the SLP preferred by the respondents against this order was also dismissed by the Apex Court. In these circumstances, once it is evident that the OMR application form was itself found to be defective, the petitioners cannot be faulted for filling the column 13 of the same incorrectly. The petitioners are, therefore, correct in urging that since the defect in the petitioners’ applications pertain to incorrect filling of column 13, which column in itself has been found to be defective on account of a faulty design, they cannot be made to suffer.
9. We, therefore, have no hesitation in setting aside the impugned order, which fails to appreciate that column 13 of the OMR application form for the examination in the year 2013, itself was defective. Taking into account that the petitioners have admittedly obtained higher marks than the cut off marks in the examination in which they had appeared pursuant to the interim orders passed by the Tribunal, we are inclined to direct the respondents to appoint them on the respective posts on which they had applied, with notional seniority from the date on which the last candidate in the said examination was appointed. At this stage, learned counsel for the respondents submits that currently there may not be any available vacancies to accommodate the petitioners in these posts. He, therefore, prays for time to obtain instructions in this regard.
10. Even though we are of the prima facie view that taking into account that the petitioners have been before the Court since 2013, even if there are no available vacancies, they ought to be appointed by creating supernumerary posts, if necessary, we are, at the request of the learned counsel for the respondents, deferring passing any orders at this stage.
11. List on 02.02.2024.

REKHA PALLI
(JUDGE)

RAJNISH BHATNAGAR
(JUDGE)
JANUARY 24, 2024
sr/dv

W.P.(C) 10718/2016 Page 5 of 6