Supreme Court

Recruiting Agency cannot be Compelled to Fill Up all Available Posts even if the Persons of the Desired Merit are not Available

SUPREME COURT OF INDIA | R. Banumathi & A.S. Bopanna, JJ. C.A. No. 5588 of 2010 01-08-2019

Municipal Corporation of Delhi

v.

Surender Singh

Employment Law – Recruiting agency cannot be compelled to fill up all available posts even if the persons of the desired merit are not available.

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. If the employer fixes the cut­off position the same is not to be tinkered with unless it is totally irrational or tainted with malafides. 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.

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. [Para 19]

Employment Law – the employer cannot be forced to lower the bar and recruit candidates who do not possesses the knowledge to the desired extent merely because certain posts had remained vacant.

When the Delhi Subordinate Services Selection Board (DSSSB) and the Municipal Corporation of Delhi (MCD) 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. 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. [Paras 20 and 23]

Petitioner’s Advocate : Praveen Swarup
Respondent’s Advocate : Sumit Kumar

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