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W.P.(C) 167/2023 and CM Nos.598/2023 & 599/2023            

RABINDRA TIWARY vs LT. GOVERNOR, GOVT. OF NCT OF DELHI & ANR.

The current petition has been filled, praying that he be appointed as a Judicial Officer at the Delhi Higher Judicial Service (DHJS) by creating a supernumerary vacancy. The petitioner

further prays that directions be issued to the respondents to de-reserve the vacancies reserved for candidates belonging to Scheduled Castes and Scheduled Tribes by amending the advertisement published issued for inviting applications for Delhi Higher Judicial Service Examination – 2022 (‘DHJS Exam-2022) on 24.02.2022. The petitioner also prays that he be considered for appointment as a person belonging to the Economically Weaker Section (EWS). Alternatively, the petitioner prays that the above advertisement for DHJS Exam-2022 be set aside. Current petition before the HON’BLE MR. JUSTICE VIBHU BAKHRU and HON’BLE MR. JUSTICE AMIT MAHAJAN.

FACTS OF THE CASE

Respondent no.2 (‘the DHC’) had issued the advertisement dated 23.02.2022, inviting online applications from eligible candidates for filling up 45 (forty-five) vacancies (43 existing vacancies and 02 anticipated vacancies) by way of a direct recruitment to the Delhi Higher Judicial Service (DHJS). 

The selection for the candidates has three stages. In the first stage, the eligible candidates were required to appear and clear the Delhi Higher Judicial Service Preliminary Examination. The examination consisted of objective type questions with 25% negative marking. The candidates qualifying this would be eligible to appear for the Delhi Higher Judicial Service Mains Examination (Written) (the DHJS Examination (Mains), and those candidates, who qualified the said examination, were admitted for the viva voce test.

The petitioner qualified the Delhi Higher Judicial Service Preliminary Examination, which was held on 23.04.2022 and was therefore admitted to the DHJS Examination (Mains).

The results of the DHJS Examination (Mains) were declared on 26.08.2022 and the petitioner cleared the above stage of examination which was held on 14.05.2022 and 15.05.2022.

After the declaration of the said results, one of the unsuccessful candidates by name of Anil Kumar filed a writ petition [W.P.(C) 739/2022, Anil Kumar v. High Court of Delhi] before the Supreme Court, which was dismissed by an order on 16.09.2022. Then the said petitioner (Anil Kumar) filed a petition before the Delhi High Court [W.P.(C) 14252/2022] seeking enhancement/revaluation of the marks awarded in one of the papers of DHJS Examination (Mains). Some of the other candidates also filed petitions, inter alia, seeking revaluation of the marks awarded in DHJS Examination (Mains). These petitions were dismissed as well.

The unsuccessful candidates made a representation to the DHC. These were considered by the DHC and additional 1.5 marks (1 mark in Law Paper-III and 0.5 mark in General Knowledge and Language) were awarded to all the candidates who had appeared in DHJS Examination(Mains). Thus, three candidates who had not qualified earlier now were qualified for being admitted to viva voce. The petitioner and the other qualified candidates appeared for viva voce. The final results of DJHS-Exam-2022 were declared on 10.11.2022. One of the candidates, who was unsuccessful in the DHJS Examination (Mains) but had qualified by virtue of the additional 1.5 marks being awarded was selected and was placed at serial no.21 in the order of merit. The other two unsuccessful candidates, who had qualified to appear for viva voce test because of the award of additional marks were not selected.

The petitioner was ranked at serial no.37 in the merit list. But he was not entitled to be appointed to the Delhi Higher Judicial Service, as the selection was only for 32 vacancies (including anticipated vacancies) for general candidates. The petitioner does not belong to the reserved categories.

The petitioner raised several challenges with respect to the process, the distribution of vacancies and for seeking an appointment in the above service. The petitioner claims that the unfilled vacancies reserved for Scheduled Castes and Scheduled Tribes category candidates should be de-reserved and it must be added to the number of vacancies available for the General Category candidates. The petitioner further contends that the vacancies reserved for Scheduled Tribes candidates have not been filled up for a long time and therefore are required to be de-reserved. He also challenges the award of 1.5 marks to all candidates who appeared in the DHJS Examination (Mains). He also claimed that he belongs to the EWS category and therefore contends to be appointed to the DHJS.

Mr. Sinha, learned senior counsel appearing for the petitioner, contended that the award of 1.5 marks to candidates was illegal as it was contrary to the notification in question. He further contends that the rounding of marks is impermissible and there was no ground to award any grace marks. He states that the additional marks were awarded only to accommodate certain candidates that had failed to satisfy the qualifying criteria. 

Dr. Amit George, learned counsel appearing for the DHC submitted that the petitioner should not be allowed to challenge the notice after participating in the selection. He had participated in the selection process against 32 (thirty-two) vacancies without any objection to the vacancies reserved for Schedule Castes/Schedule Tribes.

JUDGEMENT

The Court observed that the petitioner was ranked at serial no.37 and only one candidate, who had qualified to the DHJS Examination (Mains) by the award of 1.5 additional marks, has been selected. Thus, even if the petitioner’s challenge to the award of additional 1.5 marks to all candidates was accepted and the said candidate (who is ranked at serial no.21) was found to be disqualified, the petitioner cannot be appointed in his place as the petitioners rank would improve from rank 37 to rank 36. Thus, result in the petitioner not being included in the select list of 32 candidates.

The Court referring to the case of Ramesh Chandra Shah and Ors. v. Anil Joshi and Ors.: (2013) 11 SCC 309 stated that the petitioner cannot be permitted to challenge the selection process after being unsuccessful in being selected. The court held that they were “deemed to have waived their right to challenge the advertisement and the procedure of selection”. Thus, unsuccessful candidates are disentitled to challenge the selection process and seek any relief under Article 226 of the Constitution of India.

The Court was of the view that the petitioner could not claim, as a matter of right, that the vacancies reserved for Scheduled Castes/Scheduled Tribes candidates be de-reserved.

The Court further states that the petitioner’s contention that he is entitled to be considered for appointment as he belongs to the EWS was also unmerited as the advertisement did not contain any such reservation for EWS category.

Therefore, the Court stated that the petition was unmerited and accordingly, dismissed it. All pending applications were also disposed of.

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JUDGEMENT REVIEWED BY ADITYA G S.

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