Delhi High Court: In a writ petition arising from an order dated 8 January 2019 (impugned order) passed by the Central Administrative Tribunal (CAT) concerning the issue of appointment against unfilled vacancies in the OBC category for the post of Assistant Teacher (Primary), the Division Bench of C. Hari Shankar and *Om Prakash Shukla, JJ., held that candidates who do not meet the prescribed cut-off or fall within the notified waiting list have no indefeasible right to appointment merely because vacancies remain unfilled.
Accordingly, the Court declined to interfere with the impugned order and dismissed the petition.
Background
The petitioner challenged the order dated 8 January 2019 passed by the Central Administrative Tribunal (CAT) in, whereby her claim for appointment as an Assistant Teacher (Primary) under the OBC category was rejected.
The Delhi Subordinate Services Selection Board (DSSSB) had issued an advertisement for recruitment to the post of Assistant Teacher (Primary), notifying 554 vacancies, including 226 reserved for the OBC category. The petitioner, an OBC candidate, had participated in the selection process, and had secured 131.75 marks, falling short of the OBC cut-off of 132.25 marks.
Initially, 220 candidates had been selected against the 226 OBC vacancies. Subsequently, selection of 10 candidates was cancelled due to their failure to appear for document verification. Additionally, certain candidates were reallocated to the unreserved category, resulting in further vacancies within the OBC quota. Despite this, no revised cut-off list was issued.
Aggrieved, the petitioner approached the CAT seeking direction to the DSSSB to issue a revised cut-off list to fill the remaining vacancies. During the pendency of the proceedings, the results were revised, and a candidate with marks identical to those of the petitioner was called for document verification. The petitioner amended her application, alleging discrimination and seeking appointment against the unfilled vacancies.
Subsequently, a waiting list was prepared to the extent of 10 per cent of the notified vacancies. The petitioner had secured marks equal to the last candidate in the OBC waiting list, however, she was not included in the waiting list due to her lower merit position, determined on the basis of date of birth.
At the time of closure of recruitment process, 37 OBC vacancies remained unfilled, as the waiting list stood exhausted. The petitioner sought appointment against these vacancies.
The respondent contended that the waiting list had been prepared strictly in accordance with the applicable notification and had been exhausted. It was further submitted that the petitioner, though having secured equal marks, ranked below the last selected candidate due to the tie-breaking criterion and was therefore not included in the waiting list.
The CAT had held that the mere existence of unfilled vacancies did not confer a right to appointment and that inclusion in a merit list did not create an indefeasible right to appointment. Finding no arbitrariness or discrimination in the respondent’s actions, the Tribunal dismissed the application.
Aggrieved by the impugned order, the petitioner filed the present petition before the Court.
Analysis
The Court noted that the core issue for determination was whether a candidate could claim a right to appointment against unfilled vacancies merely on the ground that she satisfied the eligibility criteria and fell within the range of remaining vacancies in the order of merit.
To address this, the Court examined the notification governing the recruitment process, which expressly provided for preparation of a waiting list limited to 10 per cent of the notified vacancies. The Court observed that this stipulation formed an integral part of the selection framework and had not been challenged by the petitioner.
Upon an analysis of the facts, the Court observed that:
(i) the cut-off of 132.25 marks remained unchallenged;
(ii) the petitioner, having secured 131.75 marks, did not meet the cut-off;
(iii) the waiting list was prepared strictly in accordance with the governing notification; and
(iv) the petitioner was excluded from the waiting list due to her lower merit position arising from the tie-breaking criterion based on date of birth. The Court further noted that no infirmity had been demonstrated in the preparation of either the select list or the waiting list.
Dealing with the petitioner’s contention that she ought to have been considered against the unfilled vacancies beyond the waiting list, the Court rejected the argument, observing that acceptance of such a plea would run contrary to settled principles of service jurisprudence. The Court reiterated that the mere existence of vacancies does not confer a right to appointment.
Relying on judicial precedents, including Tej Prakash Pathak v. High Court of Rajasthan, (2025) 2 SCC 1 and State of Karnataka v. Santhosh Kumar C., 2026 SCC OnLine SC 458, the Court observed that inclusion in a selection list does not create an indefeasible right to appointment, and even selected candidates cannot claim appointment as a matter of right. Thus, a candidate who does not fall within either the select list or the waiting list cannot assert such a claim.
The Court further observed that the governing rules did not permit extension of the selection process beyond the prescribed waiting list. On the contrary, the notification clearly restricted appointments to the notified vacancies along with a waiting list capped at 10 per cent. In the absence of any provision enabling filling of vacancies beyond this limit, the petitioner’s claim was held to be untenable.
Decision
In light of the above, the Court held that the petitioner had no indefeasible right to appointment and that granting such relief would amount to rewriting the terms of the recruitment process. Finding no error in the Tribunal’s decision, the Court declined to interfere.
Accordingly, the writ petition was dismissed.
[Jyoti v. DSSB, W. P. (C) No. 3606 of 2019, decided on 6-4-2026]
*Judgment authored by: Justice Om Prakash Shukla
Advocates who appeared in this case:
For the Appellant: Yashpal Rangi, M. K. Bhardwaj, M.D. Sajid, Praveen Kaushik, Advocates.
For the Respondent: Avnish Ahlawat, SC for GNCT, Uday Singh Ahlawat, Tania Ahlawat Nitish Kumar Singh S K, Advocates.
