IMPORTANT POINTS
After participating in the selection process without demur the unsuccessful candidate cannot challenge terms of the advertisement.
Court cannot make its own criteria and substitute the same with the criteria adopted by recruiting agency.

JUDGMENT :

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 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.16126-130/2006 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 Ex-Servicemen and Physically/ Visually Challenged. Through the 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 appellant-MCD 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 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.16126-130/2006. 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.5650-51/2004 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 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 non-publishing 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