ORDER 1. The facts of the present cases are set out in detail in an order dated 18th August 2008 passed by this Court which reads as under: “1. These appeals are directed against the impugned judgment dated 29th November 2007 passed by the learned Single Judge dismissing the appellant”s writ petitions. 2. Each of the appellants applied for post of Assistant Teacher (Primary) in the Municipal Corporation of Delhi (“MCD”) for which an advertisement was issued by the Delhi Subordinate Services Selection Board (“DSSSB”) sometime in May 2006. The number of vacancies advertised for the post of Teacher (Primary) was as under: Teacher (Primary) 3348 1. Unreserved (UR) - 1558 2. Scheduled Castes (SC) - 265 3. Scheduled Tribes (ST) - 595 4. Other Backward Class (OBC) - 903 (including Ex-Serviceman 335, Physically handicapped (O) 50 and Visually handicapped (Low vision) 50). 3. By a corrigendum issued on 14th May 2006 it was stated that a number of vacancies announced in the earlier advertisement would stand modified as under: 1. Teacher (Primary) 2348 (UR- 1079, SC-116, ST-520 and OBC “ 633) (including Ex-Serviceman 235, PH(OS) 35 and VH(LV)-35). 2. In addition to above vacancies of 2348, a panel of 1000 candidates (UR “ 506, SC-149, ST-75 and OBC “ 270) (including Ex-Serviceman “ 100, PH(O)-15 and VH (LV) “ 15) shall be prepared and kept in reserve by the Board as per the request of the MCD. The candidates from this panel may be sent to MCD after getting the request of competent authority of the MCD. The Board reserves the right to fix the longevity of the said panel at its sole discretion. 4. There was a written exam conducted on 2nd July 2006. The general instructions issued by the DSSSB for the exam, or the advertisement, did not indicate any cut-off/qualifying marks in such examination. In the results announced thereafter, none of the appellants qualified. Hence they filed the aforementioned writ petitions questioning, inter alia, Clauses 25 and 26 of the general instructions which read as under: 25. The Board has full discretion to fix minimum qualifying marks for selection for each category i.e. SC/ST etc. of post in order to achieve qualitative selection and to pick up the best talent available. 26. The marks obtained by the candidate in written examination will not be disclosed in any case. 5. The Board has full discretion to fix minimum qualifying marks for selection for each category i.e. SC/ST etc. of post in order to achieve qualitative selection and to pick up the best talent available. 26. The marks obtained by the candidate in written examination will not be disclosed in any case. 5. It was argued by the appellants before the learned Single Judge that the aforementioned clauses of the instructions were contrary to the directions contained in the judgment dated 18th February 2005 passed by this Court in WP(C) No. 5650-51 of 2004 (Kuldeep Singh and Anr v. DSSSB and Ors). It was further prayed that a direction should be issued to the respondents to consider the case of the appellants against the remaining vacancies without fixing any minimum qualifying marks for selection. The stand taken by the MCD before the learned Single Judge was that there was no vested right in the appellants to claim to be appointed in respect of the vacancies that remained unfilled after the results were declared on 29th July 2006. It was stated that after the receipt of the select list given by the DSSSB, the MCD had not sought any further names from the DSSSB. The remaining vacancies were decided to be clubbed with the future ones. Therefore, the select list for the 2006 examination stood exhausted and could not be revived. The further stand taken by the MCD was that it was for the appellants to demonstrate how the fixing of the cut off marks by the MCD was arbitrary. It was contended that the cut-off marks fixed were applied uniformly and could not therefore be said to be arbitrary or discriminatory. On behalf of the DSSSB it was contended that by fixing the minimum qualifying marks for selection it had safeguarded the interest of the students since this would ensure that the best teachers were selected. 6. The learned Single Judge held that in terms of Clause 25 of the general instructions, it was open to the DSSSB to fix the qualifying marks for selection in the different categories of posts. This would enable it to pick up the best talent available. 6. The learned Single Judge held that in terms of Clause 25 of the general instructions, it was open to the DSSSB to fix the qualifying marks for selection in the different categories of posts. This would enable it to pick up the best talent available. It was held: 31”““.Considering the fact that thousands and thousands of aspirants had applied for being appointed to the posts in question, it was all the more necessary to lay out some rational and objective basis for properly assigning and evaluating the candidates. As regards the contention that certain vacancies remained to be filled up, the learned Single Judge held as under: 41”““. Simply because the number of vacancies advertised could not be filled up by subscribing to the criteria laid down by way of prescribing minimum qualifying marks, will not amount to an illegality or exercise of arbitrariness on the part of the respondents for the reason that while it is implicit in the Recruitment Rules to consider every qualified candidate, as also in the equal opportunity right enshrined in Article 14 of the Constitution of India, screening a candidate by restricting the zone of selection cannot be held to be illegal and unconstitutional as long as there is rational formula carved out with the object of achieving higher standards of education and the said formula is applied uniformly to all, is not totally irrational, or tainted with malafides. 7. There are 8 appellants before this Court. Three appellants in LPA No. 65 of 2008, two appellants in LPA No. 171 of 2008 and two appellants in LPA No. 172 of 2008 belonged to the unreserved (UR) category. Of these appellants Dilip Singh and Ram Awatar Singh Chauhan belong to the sub-category of Ex-Servicemen (EXSM). Appellant No.4 Asha Ram in LPA No. 65 of 2008 and the appellant No.1 Poonam Bala in LPA No. 171 of 2008 belong to the Other Backward Class (OBC). Asha Ram was also an EXSM. 8. It is not in dispute that a subsequent examination has been held in April 2008 to fill up the unfilled vacancies of the 2006 examination as well as the newly created vacancies. There are several changes in the new examination. Asha Ram was also an EXSM. 8. It is not in dispute that a subsequent examination has been held in April 2008 to fill up the unfilled vacancies of the 2006 examination as well as the newly created vacancies. There are several changes in the new examination. Unlike the examination held in 2006 when there was only one paper in the written examination, in the written examination held in April 2008 there were two parts i.e. Part-I Preliminary and Part-II Main Examination. Clause 6 of the general instructions for the April 2008 examination reads as under: 6. The minimum qualifying marks for Part I exam is 40% for General and 30% for OBC/SC/ST candidates and for Part “ II 45% for General, 35% for OBC/SC/ST. An age limit for taking the examination has also been stipulated. Admittedly, each of the appellants was overaged and unable to take the exam. Therefore, along with certain other similarly aggrieved persons, they have challenged the said stipulation in a separate batch of writ petitions which are pending before a learned Single Judge of this Court. In that batch of writ petitions, an interim order has been passed permitting the petitioners to appear in the examination. However, it has been further directed that that results thereof would be subject to the orders to be passed in the writ petitions. 9. It is contended by the learned counsel for the appellants that there were in fact no cutoff marks fixed for the written examination held in 2006. In the absence of any cut-off marks and in the light of the fact that 63 of the 1079 vacancies advertised admittedly remained to be filled, the appellants ought to have been considered for appointment against those vacancies. It is contended that at least three of the appellants i.e. Surinder Singh, appellant No.1 and Rakesh Sharma, appellant No.2 in LPA No. 65 of 2008 and the appellant No.1 in LPA No. 171 of 2008 Poonam Bala belonged to the UR category and had obtained 87, 88.75 and 88.25 marks respectively out of 200 marks. The marks obtained by the last selected candidate in the UR category i.e. Praveen Kumar were 89. Therefore, the difference in the marks scored by these three appellants and the last selected candidate was extremely narrow. The marks obtained by the last selected candidate in the UR category i.e. Praveen Kumar were 89. Therefore, the difference in the marks scored by these three appellants and the last selected candidate was extremely narrow. Since there were around 63 vacancies remaining to be filled, the respondents were obliged to go down in the merit list and if they did so, then these three appellants would qualify to be appointed. 10. It is further contended by counsel for the appellants that even in the preparation of the list of selected candidates there were errors. Persons who had secured marks less than the last selected candidate Praveen Kumar were placed higher than him in the merit list. In respect of one such candidate an order was passed by this Court in WP (C) No. 1338 of 2007 (Rohtash Lakra v. DSSSB) directing the respondents to give him the appointment. It is also pointed out that among the rejected candidates those with lesser marks than the appellants were placed higher. 11. On behalf of the respondents, although it was contended before the learned Single Judge that cut off marks had been fixed, it is now fairly conceded that in fact no conscious decision was taken by the DSSSB to fix any cut-off mark for the examination held in 2006. It was only for the subsequent examination held in April 2008 that the qualifying marks for UR, OBC and SC, separately for Part I and Part II examinations, were clearly indicated. It is stated that as regards the examination held in 2006 the select list was operated up to the point that the 1079th vacancy was filled. The last candidate in the UR category had secured 82.75 marks. Similarly the last selected candidate in the OBC category was Janamejay Kumar Yadav who got 70 marks and the last candidates in the EXSM category was Laxmi Chand who obtained 70.25 marks. It was, therefore, decided that the select list would end at this point. No thought was given at that stage to the possibility that some of the 1079 candidates may not ultimately be appointed for a variety of reasons. The unfilled vacancies, therefore, were clubbed with the future vacancies for which the examination took place in April 2008. It was, therefore, decided that the select list would end at this point. No thought was given at that stage to the possibility that some of the 1079 candidates may not ultimately be appointed for a variety of reasons. The unfilled vacancies, therefore, were clubbed with the future vacancies for which the examination took place in April 2008. It is submitted that there is nothing arbitrary in this procedure and that the object was to ensure that meritorious candidates are given appointments as teachers. 12. We have considered the submissions of the counsel for the parties and perused the records. The appellants have been unable to show any candidate who secured marks less than any of them, has been appointed. Therefore, there is no merit in the contention that the select list was faultily prepared. However, as regards the cut off marks, as mentioned earlier, the counsel for the DSSSB has fairly stated that the stand taken before the learned Single Judge that cut off marks had been fixed by it for each category i.e. UR, OBC, SC, ST, EXSM is not borne out by the records. What in fact was done was to draw a line at the point in the select list when the last of the vacancies in each category stood filled up. As far as the UR category was concerned, this line was drawn soon after Praveen Kumar who obtained 89.25 marks. Although admittedly 63 of the dossiers of selected candidates were returned, and therefore those vacancies remained to be filled, the DSSSB decided not to go down the select list any further. To us it appears that in the absence of any cutoff marks fixed by the DSSSB, it was not justified or reasonable on its part to have stopped with Praveen Kumar in operating the select list. It is possible that at least three of the appellants in the UR category would have made the mark had the list been operated further. This is particularly since their marks are only marginally less than that of Praveen Kumar. As pointed out by the Supreme Court as recently as in Hemani Malhotra v. Delhi High Court 2008 (4) SCALE 645 . fixing of a qualifying/cut off mark after the written examination is over would be arbitrary and unreasonable. 13. This is particularly since their marks are only marginally less than that of Praveen Kumar. As pointed out by the Supreme Court as recently as in Hemani Malhotra v. Delhi High Court 2008 (4) SCALE 645 . fixing of a qualifying/cut off mark after the written examination is over would be arbitrary and unreasonable. 13. This Court is conscious of the need to ensure some minimum standard and that this is best left to be decided by the DSSSB. However, as far as the 2006 examination is concerned, there was no cut-off mark stipulated. If the standard were to be no different from what the DSSSB itself has prescribed for the subsequent examination held in April 2008, i.e. 40% in Part I and 45% in Part II, then for the 2006 exam it would be reasonable to consider a mark between 40 and 45% to be the desired cut off mark, which would ensure that merit is not compromised. Applying that yardstick the cases of three appellants i.e. Surinder Singh, appellant No.1 and Rakesh Sharma, appellant No.2 in LPA No. 65 of 2008 and the appellant No.1 in LPA No. 171 of 2008 Poonam Bala ought to be considered once again by the respondents DSSSB and MCD for being appointed. If so appointed, it would render infructuous their challenge to the prescription of an age norm for the subsequent exam held in April 2008. 14. It was apprehended by the learned counsel for the respondents that other candidates who may have secured marks higher than the aforementioned three appellants, and less than Praveen Kumar, would also be entitled to be considered for appointment. This Court finds no merit in this contention for the simple reason that none of the other appellants have approached this Court and this order is confined to the three appellants aforementioned. Moreover, reducing by three the number of vacancies advertised for being filled up through the exam held in April 2008 would not prejudice anyone at this stage since that selection process is yet to be completed. 15. As far as the other appellants are considered this Court is satisfied that the marks secured by them in the 2006 exam are much lower than the cut off prescribed for their respective categories in the subsequent exam held in April 2008. 15. As far as the other appellants are considered this Court is satisfied that the marks secured by them in the 2006 exam are much lower than the cut off prescribed for their respective categories in the subsequent exam held in April 2008. Therefore, no similar relief can be granted to them and they will have to await the decision in the writ petitions filed by them in respect of the subsequent examination. 16. Accordingly, it is directed that the respondents DSSSB and MCD will, in the light of this order, again consider whether three of the appellants i.e. Surender Singh, Rakesh Sharma and Poonam Bala can be appointed as Primary Teachers pursuant to the examination held in 2006. We make it clear that this would be in the special facts and circumstances of the case as noticed hereinbefore and would not constitute a precedent. Needless to mention that if the respondents decide to grant such appointment it would be prospective. This would further be conditional upon these appellants withdrawing the writ petitions filed by them challenging the age qualification for the subsequent examination. The decision be taken by the MCD and DSSSB in consultation with each other within a period of four weeks from today and be placed on record along with an affidavit. 17. List for further consideration on 29th September 2008. 18. A copy of the order be given dasti to the learned counsel for the parties under the signature of the Court Master. We are informed that subsequent to the passing of the above order, Ms. Poonam Bala the appellant No.1 in LPA No. 172 of 2008 has qualified for appointment in the subsequent selection by virtue of a one-time age relaxation permitted by this Court in the petition filed by her. Learned counsel representing the appellant Ms. Poonam Bala seeks leave to withdraw LPA No. 172 of 2008, as far as she is concerned, as not pressed. The said appeal qua the appellant No.1 Poonam Bala is accordingly dismissed as not pressed. As far as appellant No.2 in LPA No. 172 of 2008, Mr. Ram Awatar Singh Chauhan, is concerned, his case already stood rejected by an earlier order dated 18th August 2008 vide para 15 thereof. We now turn to the case of the Appellants Nos. 1 and 2 in LPA No. 65 of 2008, Surender Singh and Rakesh Sharma. As far as appellant No.2 in LPA No. 172 of 2008, Mr. Ram Awatar Singh Chauhan, is concerned, his case already stood rejected by an earlier order dated 18th August 2008 vide para 15 thereof. We now turn to the case of the Appellants Nos. 1 and 2 in LPA No. 65 of 2008, Surender Singh and Rakesh Sharma. In response to the directions issued by this Court in its order dated 18th August 2008, separate affidavits have been filed by the Municipal Corporation of Delhi (“MCD”) and the Delhi Subordinate Services Selection Board (“DSSSB”). In the affidavit filed by the MCD it is stated as under: “4. It is pertinent to mention that in the letter dated 12/9/2008 the Deputy Secretary, DSSSB has also clarified the merit position of the appellants and other candidates. The merit position of the appellants as per marks secured by them are as under: S. Name of appellant Marks Merit No. secured position 1. Rakesh Sharma 88.75 1224 2. Poonam Bala 86.25 1287 3. Surender Singh 87.00 1447 5. That the Deputy Secretary (Legal), DSSSB further informed that there are about 273 candidates whose marks are in the range of 89.25 to 87.00 i.e. marks of last selected candidates and marks of appellant namely Sh. Surender Singh need to be put up before the Court. 6. That there are 40 candidates (Merit No. 1176 to 1215) above Sh. Rakesh Sharma i.e. Merit position No. 1224. And seniority No. 1216 to 1261 (46 candidates) have the same marks secured as secured by Sh. Rakesh Sharma. 7. That there are 106 candidates (Merit No. 1176 to 1281) above Ms. Poonam Bala having merit position 1287. It is further submitted that Merit position No. 1282 to 1309 (28 candidates) have the same marks secured as secured by Ms. Poonam Bala. 8. That there are 263 candidates (Merit No. 1176 to 1438) above Mr. Surender Singh having merit position 1447. It is further submitted that Merit position No. 1439 to 1470 (32 candidates) have the same marks secured as secured by Sh. Surender Singh. 9. Poonam Bala. 8. That there are 263 candidates (Merit No. 1176 to 1438) above Mr. Surender Singh having merit position 1447. It is further submitted that Merit position No. 1439 to 1470 (32 candidates) have the same marks secured as secured by Sh. Surender Singh. 9. The matter was discussed with the authority of DSSSB in the meeting in details to consider the above three appellants in compliance of the orders of this Hon”ble Court and it was found that it will create an anomaly and would be improper if the appointment given to the above mentioned three candidates ignoring the candidates having a higher merit position. It will also be illegal to ignore the merit list as prepared by the DSSSB for appointment of the appellant.” In the affidavit filed by the DSSSB it is stated as under: “3. That in compliance with the orders of the Hon”ble High Court a meeting was convened on 15th September 2008 wherein after detailed discussions it has been decided that it is not possible to consider the three applicants for appointment, as it has been observed by the Court that marks of the appellant was marginally less than the marks of the last selected candidate whereas the actual position is that from the merit position 1176 to 1447 there are around 271 candidates who have obtained marks in the range of 89.25 to 87.00 i.e. marks of the last selected candidate and marks of the appellant namely Sh. Surinder Singh as can be seen from the perusal of the minutes of the meeting. Copy of which is annexed herewith as Annexure R-1.” Learned counsel appearing for the MCD and DSSSB respectively submit that it would not be possible to grant appointment to either Rakesh Sharma or Surender Singh since there are around 271 candidates in the range of 89.25 to 87.00. It is pointed out by learned counsel for the appellant that in the instant case, as already observed by this Court in its order dated 18th August 2008, no cut- off mark was in fact fixed. Moreover, fixing the cut-off mark after the completion of the written exam would be impermissible as held by the Supreme Court in Hemant Malhotra v. Delhi High Court 2008 (4) SCALE 645 . There is merit in this submission. Moreover, fixing the cut-off mark after the completion of the written exam would be impermissible as held by the Supreme Court in Hemant Malhotra v. Delhi High Court 2008 (4) SCALE 645 . There is merit in this submission. The only apprehension expressed by learned counsel for the respondents is that there may be others with the same range of marks as the two appellants before us. This has already been dealt with by this Court in its order dated 18th August 2008. As already observed, other than the appellants before this Court no other person has approached the Court. It may be recalled that 63 dossiers were returned to the MCD and those vacancies remain to be filled. This Court was, for reasons already explained, prepared to consider the case of only three of the appellants. One of the appellants having given up her claim, only two of the appellants remain in the fray. As explained by the Supreme Court in Chairman, Uttar Pradesh Jal Nigam v. Jaswant Singh (2006) 11 SCC 464 it is possible to restrict the relief to be granted to those persons who approach the Court. Further the difference in the marks secured by the candidate appointed last in the unreserved category (i.e. Praveen Kumar with 89.25 marks) and two appellants before us is indeed not substantial. Rakesh Sharma has secured 88.75 marks and Surender Singh 87 marks out of 200 respectively. Percentage wise this works to 44.37% and 43.5% respectively. This Court has, in para 13 of its order dated 18th August 2008, explained the rationale for ensuring that some minimum standard is maintained so that merit is not compromised, if a direction is issued to appoint these two appellants. There is nothing in the affidavits of either the MCD or the DSSSB to suggest that either of these two appellants would not meet the merit criteria. Keeping in view the facts and circumstances and for the reasons set out in the earlier order dated 18th August 2008 and this order, this Court considers it in the interests of justice to direct that the appellants Surender Singh and Rakesh Sharma (Appellants 1 and 2 in LPA No. 65 of 2008) be appointed to the post of Assistant Teacher (Primary) in the MCD. It is made clear that this direction is being issued in the special facts and circumstances of the case and would not constitute a precedent. The appointments will be made within a period of four weeks from today and subject to each of these appellants completing all other formalities. The appointments will be prospective. Accordingly, the LPA No. 65 of 2008 is allowed as regards the Appellants 1 and 2 are concerned. It is dismissed as regards the other appellants. The LPA No. 171 of 2008 is dismissed. LPA No. 172 of 2008 is dismissed as not pressed as regards Appellant No.1 Poonam Bala and dismissed as regards Appellant No.2 Ram Awatar Singh Chauhan.