TaxTMI 
TaxTMI 
2023 (11) TMI 1304
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....Prasad Goyal, Tarun Gupta, AORs, Raj Sudhakar Yadav, Atul Kumar, Abhishek Sharma, Manoj Rajpoot, Vikrant, Advs., Rajani Ohri Lal, AOR and Yaduinder Lal, Adv. JUDGMENT Manoj Misra, J. 1. Leave granted. 2. All these appeals are directed against a common judgment and order Order dated 31.12.2021 of the High Court (High Court of Himachal Pradesh) disposing of a batch of writ petitions as well as intra-court appeals concerning recruitment on the post of Junior Office Assistant JOA, a Class III (Non-gazetted) post, under the Government of Himachal Pradesh Govt.. There being a commonality of law and facts concerning these appeals, they are being decided by a common judgment. Factual Matrix 3. As these appeals arise from multiple proceedings, a disclosure of relevant facts in a chronological order would be apposite. These facts are set out below: (A) On 24.12.2014, Himachal Pradesh, Department of Personnel, Junior Office Assistant (Information Technology), Class-III, (Non-Gazetted), Ministerial Services, Common Recruitment and Promotion Rules, 2014 (2014 Rules), framed under the proviso to Article 309 of the Constitution of India (Constitution), were notified wit....
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....x any of the provision (s) of these Rules with respect to any class or category of person (s) or post(s). (B) On 13.02.2015, Himachal Pradesh Subordinate Services Selection Board Selection Board vide Advertisement No. 30 of 2015 invited applications for selection/appointment on 1421 post (s) of JOA (Post Code 447) prescribing same qualifications as in Rule 7 of the 2014 Rules. The last date for submission of application was 18.03.2015. However, for residents of certain districts, it was 02.04.2015. But the date(s) were extended up to 31.10.2015. Clause 4 of the general conditions in the advertisement specifically provided that, "the candidate must fulfil/possess all the required essential educational and other qualifications mentioned against each code on or before the last date fixed for the receipt of application forms, otherwise the candidature will be rejected at the time of Personal Interview. (C) As large number of applicants had done their computer course from Private Institutes, the Principal Secretary (Education) to the Govt. was requested to inform: (i) whether a candidate could be considered eligible if he has certificate/diploma from any regis....
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....onance with the nomenclature of the diploma mentioned in the aforesaid education qualifications. However, prima facie, it is made out that they are holding one year diploma in computer. In such circumstances, there shall be a direction in the interim to the Respondent Commission to permit the applicants, who admittedly have already appeared in the written/Typing Test, to appear in the interview, provisionally. However, their result shall not be declared and instead kept in a sealed cover till the matter with regard to equivalence of the diploma held by them with the diploma required as per the aforesaid educational qualifications is considered and decided by the newly added Respondent No.2- State, which shall be done as expeditiously as possible but within the reasonable time frame. (H) In deference to the above order, the Commission sought directions/clarifications/guidance from the Govt., inter alia, on the following issues: (1) Whether the diplomas possessed by those applicants equivalent to the diploma required by the Rules. (2) Whether diploma/certificate obtained from private Institutes, regarding which there was no information about their recogniti....
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....cluded in the select list, resulting in ouster of such candidates who, though lower on merit, were otherwise eligible as per the 2014 Rules. Therefore, some of those ousted candidates laid a challenge to the merit list before the Tribunal through O.A. No. 5543 of 2017 which, consequent to abolition of the Tribunal, came to be transferred to the High Court and was registered as Writ Petition No. 34 of 2019. Notably, though O.A. No. 5543 of 2017 was filed after declaration of the final select list, only three or four selected candidates were initially impleaded as opposite parties. (K) While the recruitment/selection exercise under the Advertisement dated 13.02.2015 was ongoing, a fresh Advertisement No. 32-3/2016, dated 18.10.2016, was issued by the Commission inviting applications for another set of 1156 posts of JOA (IT) (Post Code 556) with the same qualifications as prescribed in the 2014 Rules. (L) At this stage, it would be relevant to point out that, broadly, two sets of cases cropped up from the recruitment exercise for Post Code 447, namely, (i) O.A. Nos. 2830; 2989; 2994; 2998; 3009; and 3026. of 2017, which came to be renumbered as Writ Petition....
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....) The above decision of the State Government gave rise to another set of litigation (i.e., Writ Petition No. 7585 of 2019) filed by candidates desirous of selection strictly as per the 2014 Rules. Whereas candidates who sought benefit of the relaxation directed vide letter dated 19.03.2018 filed another set of petitions. This latter bunch of petitions were allowed by a Single Judge Bench of the High Court. Against which, the Commission preferred an intra-court appeal before a Division Bench of the High Court. (O) At this stage, it be clarified that despite request to apply the relaxation accorded for Post Code 447 on Post Code 556 as well, the select list for Post Code 556 was prepared strictly in accordance with the 2014 Rules, because in O.A. No. 2644 of 2018, which later came to be registered as Writ Petition No. 7585 of 2019, the Tribunal, vide order dated 16.08.2018, had allowed declaration of results in the following terms: In the facts and circumstances, materials on record and interest of justice, subject to keeping fifteen posts of Junior Office Assistant vacant for the applicants and final outcome of the original application, Respondent No. 3-Commission ....
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....le under the 2014 Rules, was rejected. (S) The candidates who were rejected as ineligible approached the Tribunal. On 26.02.2019, the Tribunal, in O.A. No. 677 of 2019 (later registered as Writ Petition No. 20 of 2019), directed status quo with regard to appointments pursuant to the declared result for Post Code 556. (T) Aggrieved by the order of the Tribunal dated 26.02.2019, a group of selected candidates filed Writ Petition No. 629 of 2019 before the High Court. On 29.08.2019, Writ Petition Nos. 161 of 2019 and 629 of 2019. were finally decided, whereby Writ Petition No. 161 of 2019, filed by candidates claiming to possess qualifications higher than prescribed, was dismissed; and Writ Petition No. 629 of 2019 filed against the interim order dated 26.02.2019 was allowed. (U) The order dated 29.08.2019 passed in Writ Petition Nos. 161 of 2019 and 629 of 2019 was subjected to a Special Leave Petition (Civil) No. 45 of 2021, which was dismissed by this Court vide order dated 15.11.2021. In these circumstances, selection/recruitment for Post Code 556, under the Advertisement dated 18.10.2016, was carried out strictly in accordance with the 2014 Rules. And 5....
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....s dated 18.10.2016 for 1156 posts (i.e., Post Code 556); and the third is dated 21.09.2020 for 1869 posts (i.e., Post Code 817). 5. Under the first advertisement for Post Code 447, the advertised posts were filled with the aid of the order dated 21.08.2017, which relaxed the advertised eligibility conditions. The litigation therein was initiated by two sets of candidates. One set comprised of those whose candidature got rejected because they failed to meet the eligibility criteria prescribed in the advertisement and the 2014 Rules. The other set comprised of those candidates who were aggrieved by relaxation of the eligibility criteria as it expanded the zone of consideration and thereby reduced their chance of selection. They, therefore, questioned the validity of the order of relaxation dated 21.08.2017 as also the selection made thereunder. The challenge laid by them was to the effect that once the 2014 Rules prescribed the essential qualifications, and the advertisement prescribed the same essential qualifications without reserving any power to relax the same at any later stage, how could there be a relaxation of these prescribed essential qualifications. Their prayer, theref....
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....ispute regarding a recognized University but as regards the authority competent to recognize an institution to award a diploma, there is no clarity. Therefore, the decision to relax the essential qualifications dated 21.08.2017 was within the powers of the State Government conferred by Rule 18 of the 2014 Rules. Hence, it was rightly applied on the recruitment exercise carried out under the first advertisement dated 13.02.2015. (ii) Computer Science/Information Technology are subjects of wide amplitude and are admissible to differing nomenclatures and cannot be restricted to the one found in the 2014 Rules/Advertisement. Thus, in absence of any clarity as to the kind of curricula required to obtain the required diploma/certificate to become eligible, the decision of the State Government dated 21.08.2017 cannot be faulted, particularly, when there is no clarity as to the authority competent to accord recognition. While holding so, the High Court took note of the essential qualifications prescribed in the 2020 Rules for the post of JOA (IT), which were more specific as regards the authority competent to recognize. (iii) Advent of computerization and wide use of info....
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....number of vacancies advertised for JOA 556 and the decision of the Government/HPSSC to close the selection procedure for JOA 556 is set aside and quashed. 34. Since the Common R&P Rules stand amended by 2020 Rules and the cause of persistent confusion for the time being appears to have been removed, as a necessary consequence selection for JOA 817 shall take place in accordance with 2020 Rules, however, the selection process shall not include the selection for posts which were left over from advertised posts of JOA 556 as the said posts have already been directed to be filled through selection process of JOA 556. 11. The resultant effect of the above directions would be that for recruitment against Post Code 556, candidates who, but for the relaxation dated 21.08.2017, were ineligible under the 2014 Rules, were to be treated eligible and the merit list redrawn accordingly. Not only that, 531 posts of Post Code 556, which remained unfilled, and, therefore, carried forward, and re-advertised on 21.09.2020, were to be segregated and filled in terms of the direction above. In consequence, the number of posts advertised under the advertisement dated 21.09.2020 were to get re....
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....0 of 2022. In this appeal, too, an Impleadment Application No. 15047 of 2022 has been filed to bring on record parties who had put in appearance through various intervention applications. (C) Arising out of SLP (C) No. 4321 of 2022: This appeal is by the writ Petitioners of Writ Petition No. 34 of 2019 before the High Court. They are aggrieved by dismissal of their writ petition which sought: (a) quashing of the relaxation order dated 21.08.2017; and (b) a direction upon HPSSC to prepare the merit-list by including only those candidates who possess essential minimum qualifications as specified in advertisement No. 30 of 2015 dated 13.02.2015. Appellants herein are those candidates who failed to find their name in the select list prepared after the recruitment exercise under the first advertisement for Post Code 447. In this appeal, I.A. No. 56457 of 2022 has been filed for bringing on record copy of the order dated 29th March 2022 passed by the High Court in Writ Petition No. 113 of 2019 whereby the said writ petition was dismissed by a Single Bench of the High Court. Another I.A. No. 100627 of 2022 has been filed by a bunch of candidates who cla....
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.... for the Respondents/Intervenors and the Advocate General of the State of Himachal Pradesh, who appeared for the State and the Commission. Submissions on behalf of Appellants 15. Ms. Kaveeta Wadia, who led the arguments on behalf of the Appellants in appeals arising out of SLP (C) Nos. 730 of 2022, 729 of 2022 and 9977 of 2022, inter alia, submitted: (i) The first and second advertisements (i.e., dated 13.02.2015 and 18.10.2016) were issued during currency of the 2014 Rules. The 2014 Rules prescribed eligibility qualifications in unequivocal terms and the advertisements specified the same qualifications with a clear stipulation that candidates applying thereunder must hold the requisite qualifications by the last date for receipt of the application. The last date for receipt of application under the first advertisement was 31.10.2015, and under the second advertisement it was 17.11.2016. Both the advertisements did not reserve the power to relax the eligibility criteria at any later stage. In these circumstances, the relaxation accorded on 21.08.2017, after the last date for receipt of the applications, was illegal. (ii) The High Court erred in observing tha....
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.... (v) to prescribe the manner of admission of students to affiliated institutions; (vi) to admit candidates to examinations conducted by it; (vii) to conduct examinations for promotion from lower to higher classes and also for awarding certificates and diplomas; (viii) to publish results of examinations conducted by it; (ix) to grant certificates and diplomas to students who have completed the prescribed course of study in an affiliated institution and have passed the examinations conducted by it; (x) to co-operate with other authorities and bodies in such manner and for such purposes as may be necessary for giving effect to the provisions of this Act; (xi) to advise the State Government on co- ordinated development of technical education and training regarding the same; (xii) to do all other such acts and things as may be necessary for the proper discharge of its functions under this Act or the Rules or regulations made thereunder; and (xiii) to carry out such other duties as may be imposed upon it under this Act or the Rules or regulations made thereunder Section 13 of the 1986 Act confers power on th....
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....filiation of an institution not able to adhere to or make a provision for standards of staff, instruction equipment or buildings laid down by the Board, or on its failure to observe the conditions of affiliation to the satisfaction of the Board; (vii) to call for reports from the heads of affiliated institutions in respect of any act done in contravention of the Rules or regulations or decisions, instructions or directions of the Board, and take suitable action for the enforcement of the Rules or regulations or decisions, instructions or directions of the Board, in such manner as may be prescribed by the regulations; (viii) to inspect an affiliated institution for the purpose of ensuring due observance of the prescribed courses of study and to ensure that facilities for instructions are duly provided and availed of; and (ix) to fix the maximum number of students that may be admitted to courses of study in an affiliated institution. (3) The decision of the Board in all matters mentioned in Sub-sections (1) and (2) shall be final. Section 15 of the 1986 Act confers power on the Board to make regulations in following terms: 15. Pow....
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....Board and cancelling an examination conducted by it in respect of any candidate; (p) the circumstances under which affiliation of an institution may be withdrawn or refused; (q) inspection of a centre; and (r) any other matter which under this Act or Rules made thereunder is to be or may be prescribed by regulations. Section 31 of the Act provides that first Regulations shall be made by the State. It provides: 31. First regulations of the Board.- (1) The First Regulations shall be made by the State Government and they shall be deemed to have been made by the Board and continue in force until altered or modified by the Board. (2) The regulations made Under Sub-section (1) shall not take effect until these have been published in the Official Gazette In exercise of its statutory powers, the Takniki Board framed and notified Himachal Takniki Shiksha Board, Regulations 1993 (1993 Regulations) Under Section 15 read with Section 31 of the 1986 Act. Regulation 6(5) of the 1993 Regulations provided for conferment of Certificates and Diplomas while Regulation 7 prescribed the conditions for affiliation of the Institution. Further....
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....lent to meet the eligibility criteria prescribed by the Rules for the post. However, the Committee approved the candidature/selection of candidates on the basis of self-certification which is impermissible in light of this Court's decision in Mukul Kumar Tyagi v. State of U.P. 2019:INSC:1380 : (2020) 4 SCC 86 (viii) As relaxation of eligibility criteria was illegal, extension of the same relaxation for Post Code 556 is also illegal. Otherwise also, executive instructions cannot override statutory Rules framed Under Article 309 of the Constitution of India. In this regard, reliance was placed on decisions of this Court in Krishna Rai v. Banaras Hindu University 2022:INSC:647 : (2022) 8 SCC 713; Union of India v. Somasundaram Viswanath and Ors. (1989) 1 SCC 175; and P.D. Aggarwal and Ors. v. State of U.P. and Ors. (1987) 3 SCC 622. 16. Ms. Vandana Sehgal, who appeared on behalf of Appellants in the appeal arising out of SLP (C) No.17676 of 2022, submitted that the third advertisement for Post Code 817 was published on 21.09.2020. By that time Himachal Pradesh, Department of Personnel, Junior Office Assistant (Information Technology), Class III (Non-Gazetted) Ministeri....
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....framed and, as per Regulation 3 thereof, there is exemption from consultation in respect of services and posts specified in the Schedule. Class III posts, other than those specified, are exempt from consultation. Thus, relaxation without consultation with the Commission was legally permissible. In this regard, reliance was placed on a decision of this Court in the case of State of Gujarat v. Arvindkumar T. Tiwari (2012) 9 SCC 545.. 18. On behalf of the State of Himachal Pradesh, H.P. Staff Selection Commission and the Govt. of Himachal Pradesh, Mr. Anup Kumar Rattan, Advocate General, assisted by Abhinav Mukerji, submitted: (i) Under the first advertisement for Post Code 447 there were 1421 vacancies. In respect of second advertisement for Post Code 556 there were 1156 vacancies. Both advertisements were, inter alia, for the post(s) of JOA, Class-III (Non-Gazetted) Ministerial Service, and were to be filled as per the 2014 Rules. A large number of candidates applied under any one of the following categories: (a) Those who held qualification higher than the one prescribed; (b) Those who held qualifications from institute(s) regarding which there was amb....
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....ao Lavhekar 2019:INSC:622 : (2019) 6 SCC 362. (vi) The State can even withdraw an advertisement and proceed afresh under new set of Rules. In this regard, reliance was placed on a decision of this Court in State of M.P. v. Raghuveer Singh Yadav (1994) 6 SCC 151 (vii) Recruitment under Post Code 447 is complete. If the appointments are set aside, it would create administrative chaos. In the recruitment process under Post Code 556, out of 1156 posts that were advertised, 626 posts have been filled and 530 posts remain unfilled. 19. On behalf of Intervenors (I.A. No.100627 of 2022), who claim to possess qualifications higher than prescribed by the Rules, Mr. Tarun Gupta argued that they possess qualifications which can be considered higher than the prescribed qualifications and, therefore, they ought to have been considered as eligible even though qua them no specific clarification was issued. Further, if persons having diploma from private/unrecognised institutes were considered eligible, there could be no dispute regarding eligibility of those who possess higher qualification. The learned Counsel sought to distinguish the decision of this Court in Zahoor Ahmad R....
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....ther, in absence of prior consultation with the Commission, the relaxation/clarificatory order could be considered in conformity with the provisions of Rule 18 of the 2014 Rules? (v) Whether in view of requirement for a written and computer typing test prior to selection, possession of one year diploma in Computer Science/Computer Application/Information Technology from a recognised University/Institution by a candidate was not an essential eligibility qualification? (vi) Whether candidates holding qualifications other than the one prescribed by the 2014 Rules or the advertisement, though allegedly higher, could be considered eligible? (vii) Whether the State (i.e., the employer) could be forced to fill all vacancies advertised; and whether it could be restrained from carrying it forward for filling it as per the amended/new Rules. Issue No.(i) 24. It is well settled that eligibility criteria/conditions, unless provided otherwise in the extant Rules or the advertisement, must be fulfilled by the candidate by the last date for receipt of applications specified in the advertisement [See: Rakesh Kumar Sharma (supra)]. 25. In Bedanga Talukdar (supra)....
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....r the power to relax the eligibility criteria, the same could be exercised only if such power is reserved in the advertisement. And when this power is exercised, there must be wide publicity of its exercise so that persons who are likely to benefit by exercise of such power may get opportunity to apply and compete. 27. In the instant case, it is not shown that the advertisement reserved the power to relax the essential eligibility qualifications specified in the advertisement at any later stage. Rather, the advertisement is specific that eligibility criteria must be fulfilled by an aspiring candidate by the last date fixed for receipt of the application. It is not demonstrated that after the decision to relax the eligibility criteria was taken, the same was widely publicised, and the last date to apply under the advertisement was extended to enable persons benefited by such relaxation to apply and compete. In these circumstances, in our view, the power to relax the eligibility criteria, even if it existed, was not exercised in consonance with the settled legal principles and it violated the constitutional mandate enshrined in Articles 14 and 16 of the Constitution. Issue No.(i) ....
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....is a technical issue and where the decision of the Government is based on the recommendation of an expert body, the Court should not lightly disturb its decision unless it is based on extraneous or irrelevant considerations or actuated by mala fides or is irrational and perverse or manifestly wrong. But this is not a case of mere treating degrees or certificates obtained from a recognized Institution/University as equivalent to the one specified, rather it is of granting recognition to certain courses conducted by private institutes, whether recognized or not as per the extant statutory regime. This, in our view, amounts to changing the eligibility criteria midway because the extant Rules and the advertisement both stipulated that the diploma/specified course had to be from a recognized Institution/University. Even assuming that there had been no statutory procedure prescribed to accord recognition, such relaxation in the eligibility qualification ought to have been widely publicized, and opportunity should have been afforded to those who were left out, so that they could apply and compete, as held by this Court in Bank of India v. Aarya K. Babu 2019:INSC:882 : (2019) 8 SCC 587. ....
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....cation/ University. (ii) One year Diploma in Computer Science/ Computer Application/ Information Technology from a recognised University/ Institution. (iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi OR (i) 10 +2 from a recognised Board of School Education/ University. (ii) "O" or "A" level Diploma from National Institute of Electronics & Information Technology (NIELET) (iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi 37. Neither the 2014 Rules nor the advertisement recognises any other, or higher qualification, meeting the eligibility criteria specified therein. In a somewhat similar situation, in Zahoor Ahmad Rather (supra), this Court held: "26. Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role o....
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....able to be rejected and has rightly been rejected by the High Court as well. Issue No.(vi) is decided accordingly. Issue No. (vii): 39. It is well settled that an employer cannot be forced to fill all the existing vacancies under the old Rules. The employer may, in a given situation, withdraw an advertisement and issue a fresh advertisement in conformity with the new or amended Rules [See: State of M.P. v. Raghuveer Singh Yadav (supra)]. Even a candidate included in the merit list has no indefeasible right to appointment even if the vacancy exists (See: Shankarsan Dash v. Union of India (1991) 3 SCC 47). Issue No.(vii) is decided accordingly. Conclusion/Directions: 40. For all the reasons above, the direction(s) contained in paragraphs 33 and 34 of the impugned judgment of the High Court setting aside the closure of the selection process for Post Code 556 and to re-cast the merit list as well as fill up remaining posts of Post Code 556, with the aid of relaxation/ clarification dated 21.08.2017/ 18.09.2017 read with communication dated 19.03.2018, after segregating it from those advertised as Post Code 817, are set aside. Though the directions contained therein were sta....
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....d adequate proficiency in their job but are now placed in various departments of the State. Therefore, if their appointment is disturbed, it would paralyse the Govt. set up. Moreover, several of such candidates might have crossed maximum age limit for participating in a fresh recruitment exercise. It is, therefore, prayed by the Respondents that their appointment(s) should not be disturbed in exercise of discretionary powers of this Court. 44. Upon consideration of the rival submissions and having regard to: (a) that appointments were made after taking written and computer typing test of the candidates; (b) that there is no specific allegation of nepotism or mala fides in making such appointments; (c) that nature of the post does not require a high degree of technical skill; (d) the length of period during which the appointments have continued; and (e) that there is no clarity whether such appointees were duly served with notice of the proceeding before the High Court, or whether a specific challenge was laid to their eligibility individually, we are of the considered view that even if such appointments were made taking aid of the relaxation order dated 21.08.2017, it would not ....