TaxTMI 
TaxTMI 
2023 (8) TMI 1594
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....ture of Mandamus or any other writ, order or direction as may be deemed appropriate by this Hon'ble Court, directing Respondent No.1 to do away with the 'Qualification' clause added in JD qua appointment of Director (Finance) in CPSEs whereby which preference has been given to Chartered Accountants over Cost Accountant; c) Issue a writ in the nature of Certiriori or any other writ, order or direction as may be deemed appropriate by this Hon'ble Court, directing Respondent No.1 to quash the list of shortlisted candidates dated 10.03.2023 qua the appointment of Director (Finance) in Respondent No.2 company; d) Pass any other or further orders, as this Hon'ble Court may deem fit and proper in the circumstances of the present case." FACTUAL MATRIX 2. The brief facts of the instant Writ Petition are that the petitioner joined the respondent no.2 ('respondent Organization' hereinafter) in 1994 and is currently working as Chief General Manager (Corporate Finance & Treasury) under the H Grade. The respondent Organization is a schedule-A Central Public Sector Enterprise ('CPSE' hereinafter) in the petroleum sector with the administrative jurisdict....
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....present writ petition" 6. In the said interim order, this Court had granted the interim relief on condition that the outcome of the interview shall be subject to the final outcome of the instant petition. The petitioner then appeared for the interview, and the respondent Body was directed to submit the result in a sealed cover. 7. Thereafter, this Court vide interim order dated 25th May, 2023 allowed the respondent to open the sealed cover and declare the results of the interview. In the same order, the respondent was also permitted to appoint the selected eligible candidates without prejudice to the instant petition. The relevant paras of the said order reads as follows: "3. Learned counsels for the Respondents submit that the post of Director (Finance) is an important position in the CPSE and the interim order is causing a prejudice as the appointment is on a hold and therefore they seek vacation/variation of the order so that the process can be completed and appointment can be made to the said post. 4. Learned counsel for the Petitioner, on the other hand, submits that he has no objection to the order being varied permitting the official Respondents to de....
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....ntants despite the fact that the both are considered at par in all Central and State statutes and are equally recognised by the Government of India. It is also argued that even though the advertisement/JD uses the word 'preference', it's actual effect is of such nature that is closes all the doors for the Cost Accountants to hold the post of director (Finance) both internally, externally and sectorially despite fulfilling all the mandatory requirements. 12. It is submitted that the list of shortlisted candidates published on 10th March, 2023 goes against the settled law under Geeta Sharma v. Public Enterprises Selection Board & Anr, 2022 SCC OnLine Del 3600 wherein this Court had set aside the decision of preference given to the Chartered Accountants and it was held as follows: "22. In the light of this position, while candidates at serial nos. 6 & 7 of the impugned list of shortlisted candidates may be entitled to get preference on account of their qualifications, the petitioner was clearly entitled to get preference on two counts, one on account of her higher pay scale, and the other on account of her Board level position, as the other two candidates are admittedly ho....
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....eds and situations. 17. It is submitted that it is a settled law that the decisions of the expert committees of the Government are not interfered with, except on the ground that the committee is not properly constituted or that the process is not duly followed. 18. It is submitted that there is a rational nexus between the basis of classification and the object intended to be achieved. The Director (Finance) has the responsibility of overall in-charge of finance, accounts and fund management of the organization and is also responsible for evolving and formulating the policies related to finance and accounts as well as implementation thereof. The Chartered Accountants are professionals Whereas, the Cost Accountant is a professional who is only responsible for ensuring that money spent by their company is well planned. Hence, the objective behind preferring Chartered Accountants is to promote all aspects of finance, accounts and funds management of the CPSEs and enable them to formulate policies optimizing the well-being of their business, finances and accounts. 19. It is submitted that the petitioner has already admitting the fact of being aware about the internal meeting d....
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....referring Chartered Accountants over Cost Accountants. The said advertisement/JD is reproduced hereinbelow: "3. Qualification (i) The applicant should be a Chartered Accountant or Cost Accountant or a full time MBA/PGDM course with specialization in Finance with good academic record from a recognized University/Institution. Preference would be given to Chartered Accountant. (ii) Officers of Organized Group 'A' Accounts Services [i.e. Indian Audit and Accounts Service, Indian Defence Accounts Service, Indian Railway Accounts Service, Indian Civil Accounts Service, Indian P&T Accounts & Finance Service and Indian Cost Accounts Service] working in the appropriate-level are exempted from these educational qualifications. (iii) Further, applicants from the Central Govt./Armed Forces of the Union/All India Services, will also be exempted from the educational qualifications as per (i) above provided the applicants have 'the relevant experience' as mentioned in Para 4(iii) below. In respect of applicants from Organized Group 'A' Accounts Services/Central Government/Armed Forces of the Union/All India Services, Chartered A....
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.... statement and objects of both the statutes also specify different roles to the respected professionals. 30. On reference to the other statues, it is made out that some legislation treats both the professionals differently. In order to establish the same, perusal of Section 288 of the Income Tax Act, 1961 becomes important. The said provision talks about the representation by the authorized persons which exclusively prescribes for 'Chartered Accountants' as explanation of the term 'accountants' mentioned in the said provision of the Act. The relevant portion of the said provision reads as follows: "Section 288, Appearance by authorised representative.......................[Explanation.-In this section, "accountant" means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) who holds a valid certificate of practice under sub-section (1) of section 6 of that Act, but does not include [except for the purposes of representing the assessee under subsection (1)]" 31. On bare perusal of the aforesaid paragraph, it becomes clear that there exists distinction between the role and responsibility of ....
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....ate, are not adequately represented in the services under the State.] 4 [(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.] (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. 1 [(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in add....
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...., and must be, deemed to be included in the expression "matters relating to employment" in Article 16(1).... This equality of opportunity need not be confused with absolute equality as such. What is guaranteed is the equality of opportunity and nothing more. Article 16(1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. Any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of the equality of opportunity; but in regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment, and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens who enter service.... In this connection it may be relevant to remember that Article 16(1) and (2) really give effect to the equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). The three provisions fo....
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....nce, there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured, Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection. It is true that the selective test adopted by the Government for making two different classes will be violative of Articles 14 and 16 if there is no relevant connection between the test prescribed and the interest of public service. In other words, there must be a reasonable relation of the prescribed test to the suitability of the candidate for the post or for employment to public service as such. The provisions of Article 14 or Article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down qualifications for the post in question. Such qualifications need not be only technical but they can also be general qualifications relating to the suitability of the candidate for public service as such. It is therefore not right to say that in the appointment to the post of tracers the Government ought to have taken into account only the technical pro....
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....ctricity Board which amended the Board's Service Regulations fixing ratio of 3:1 for promotion to the post of Assistant Engineers (Electrical) between the Junior Engineers (Electrical) and Supervisors (Electrical Grade-I) - the former being degree-holders and latter diploma-holders. 26. The aforesaid shows that the classification is based on higher educational qualification and the same has to receive our approval because for certain types of work the Supervisors are not sufficiently qualified, whereas Junior Engineers are. The nature of the work performed by the two classes of post holders and the higher educational qualification of the degree-holders did permit the Electricity Board to classify the two groups differently for the purpose of their promotion. As to the ratio of 3:1, we have applied our mind and we have come to the conclusion that we may not interfere with the same because of the fact that any different view would create almost a chaotic situation in the working of the Board as the Board's decision, which is of 1974 has held the field for about two decades and any disturbance at this stage would not to be conducive to the functioning of the Board ina....
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....hat the differentia must have a rational relation to the object sought to be achieved. (See Saurabh Chaudri v. Union of India [(2003) 11 SCC 146 : (2003) 9 Scale 272] .)" 37. In Govt. of W.B. v. Tarun K. Roy, (2004) 1 SCC 347, the Hon'ble Supreme Court held that a violation of fundamental right would not arise when the persons are not similarly placed. The relevant paragraph is as follows: "20. Question of violation of Article 14 of the Constitution of India on the part of the State would arise only if the persons are similarly placed. Equality clause contained in Article 14, in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia. The doctrine of equal pay for equal work, therefore, is not attracted in the instant case." 38. On perusal of the relevant paragraphs of the aforementioned judgments, it is clear that the state can create classifications based on the qualifications. Therefore, it is well within the power of the state to create separate classification based on the reasonable differentia. 39. In the instant case, it is already established that the Cost ....
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....n issue the writ for setting aside the decision of the expert committee which stems out from the minutes of the meeting dated 19th August, 2021 not under challenge before this Court. 45. The writ of mandamus has been defined in Halsbury Statutes of England, Vol 11, (3rd Edition) p. 84 in the following manner: "The order of mandamus is an order of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice, and accordingly, it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right" 46. On perusal of the aforesaid definition, it is clear that the writ of mandamus is a command issued from the courts to direct the Subordinate Courts, Organisations or the State to perform a duty which they are bound to do by virtue of the nature of the public office they hold. 47. The scope of mandamus ....
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....mittee stemming from the meeting dated 19th August, 2021, is not under the challenge before this Court. 50. Therefore, it is imperative to refer to the settled position of law with regards to the said issue. In Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491, the Hon'ble Supreme Court had discussed the purpose of pleadings at length and held that allowing a particular relief without there being a prayer for the same would lead to miscarriage of justice. The relevant paragraph is reproduced herein: "12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to p....
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....gments, it is evident that even though the scope of mandamus is very wide, courts cannot ignore the principles governing grant of relief. It is a well settled principle of law that the courts should not delve into the aspects which are related to reliefs not prayed by the petitioner and it is fundamental that a relief can only be granted in a case when it is prayed by the petitioner. Therefore, any relief, not prayed by the petitioners, cannot be granted by this Court under Article 226 of the Constitution. 53. In the instant case, the petitioner has prayed for issuance of writ of mandamus to do away with the preference clause as added in the Advertisement/JD, but has not challenged the minutes of the meeting through which the said decision of preference stems out. The petitioner has also not preferred the option of modification of the prayer and has only sought to do away with the said preference clause. Hence, this Court cannot interfere in the decision taken by the expert when the same has not been under challenge in the instant petition. 54. Therefore, in light of the settled principles regarding both issuance of mandamus and principles governing the grant of reliefs, this....
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....en select candidates in accordance with such evaluation. If, for that purpose the Commission prescribes marks for different facets and then evaluates the merit, the process of evaluation cannot be considered to be arbitrary unless marks allotted for a particular facet is on the face of it excessive. Weightage to be given to different facets of a candidate as well as to the viva voce test vary from service to service depending upon the requirement of the service itself. In course of the arguments before us the learned counsel for Respondent 1 had submitted that the awarding of 20 marks for viva voce and 20 marks for general knowledge out of 100 marks must be held to be on the face of it arbitrary giving a handle to the Public Service Commission to manipulate the selection and, therefore, the High Court had rightly come to the conclusion that it was arbitrary. We are unable to accept this contention. This Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722 : 1981 SCC (L&S) 258] , while considering the case of selection, wherein 33% marks was the minimum requirement by a candidate in viva voce for being selected, held that it does not incur any constitutional ....
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....ction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee. The courts have very limited scope of judicial review in such matters." 60. On perusal of the aforesaid judgments, it is made out that the expert committees are constituted of individuals who are well versed with the nature of tasks to be performed by the persons appointed to the high level position and the said decisions need not be interfered with by the courts in normal circumstances. 61. In the instant case, it is clear that the petitioner has not questioned the constitution of the respondent Body ra....
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....other factors, including the post on which the applicant is presently working as also his/her pay scale, must be ignored. On the other hand, learned counsel for respondent nos. 1 and 3 have urged that once, sufficient number of Chartered Accountants were available in the external category, from which category only two candidates were required to be shortlisted, the respondents were justified in giving preference to the two Chartered Accountants, who have been placed at serial nos. 6 and 7, even though they are drawing lower pay scale vis-a-vis the petitioner, who is admittedly not a Chartered Accountant. The short question before this Court, therefore, is as to what is the implication of the term „preference‟ as used in the advertisement. Does it imply that every applicant who is a Chartered Accountant will be given preference vis-à-vis a non chartered accountant, irrespective of the post held, or the pay scale drawn by the applicant? 19. Having given my thoughtful consideration to this issue, I am of the opinion that, while determining what the term "preference" as used in the advertisement would mean, it would be also necessary to consider the guidelin....
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....s to CPSEs. Difficulties are also being encountered in receiving timely and accurate information in this regard from CPSEs leading to delays and ambiguity in shortlisting. 3. The policy regarding determination of the inter-se seniority of the applicants for the purpose of shortlisting of executives holding the same pay scale in the sectoral/external category have now been revisited and it was decided that- a. Preference will be given to applicants holding a higher pay-scale. b. If pay scale of the applicants is same then - (ii) Board level applicants will be given preference over applicants who are below the Board level. (ii) If two Board level applicants are holding the same pay scale then Chairman/CMD/MD would get preference over the Director. The inter-seniority between two or more Chairman/CMD/MD or two or more Directors will be determined with respect to date of holding the same pay scale. c. The inter-se seniority of below the Board level executive holding same pay scale would continue to be determined with respect to date of holding the same pay scale. If date of holding pay scale is same, then the inter-se seniority will be determined w.r....
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....artered Accountant" must be read to imply "an added advantage". The "preference would be given to a Chartered Accountant" could not be read in such a manner to ignore the higher pay scale and the Board level position of the petitioner, which position the other candidates do not hold. I, therefore, find merit in Mr. Mehta's submission that the question of giving preference to candidates at serial nos. 6 & 7, who are Chartered Accountants, would arise only if they were otherwise equally placed as the petitioner in all other aspects. Once, the petitioner in terms of PESB guideline, was entitled to get preference not only on account of her higher pay scale, but also on account of her Board position, these two candidates could not be allowed to steal a march over her and that too, by excluding her even from the interview for the selection process. 23. In my considered view, the respondent nos. 1 and 3 have clearly misinterpreted the clause envisaging preference to be given to Chartered Accountants, as laid down in the advertisement, by ignoring all other relevant and material factors. The petitioner is a highly qualified professional who has been holding a Board level posit....
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....r dated 25th May, 2023, allowed the petitioner to appear for the interview, but the petitioner was not selected for the further process. Therefore, it can be said that earlier, the petitioner had conveniently ignored the preference clause but decided to challenge the same after non-selection for the said post. The judicial dicta related to the similar issue is amply clear. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285, the Hon'ble Supreme Court has dealt with the issue in following manner: "24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination." 71. In Madan Lal v. State of J&K, (1995) 3 SCC 486, the ....