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TMI Blog2023 (11) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with a view to have common recruitment and promotion Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 registered Institute, whether operating within or outside the State; (ii) the name(s)/list of registered/recognized institutes whose diplomas/certificates could be considered valid for determining eligibility for the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 recognition, could be considered as one from a recognized University/Institute. (I) Pursuant to that, the Commission was informed about the Govt.'s decision dated 21.08.2017, which was in the following terms: (1) All such candidates having one year Diploma in Computer or higher qualific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Nos. 2253; 2289; 2290; 2388; 2394; and 7681 of 2020 before the High Court after abolition of the Tribunal. These cases were at the instance of candidates whose candidature was rejected for not possessing qualifications as prescribed by the 2014 Rules. (ii) O.A. No. 5543 of 2017, filed on 13.10.2017, which, upon transfer to the High Court, came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shall be free to declare the result of the process for recruitment to the post of Junior Office Assistants. The above order was assailed before the High Court through Writ Petition No. 1964 of 2018, which was disposed of vide order dated 28.08.2018 in the following terms: In this background we clarify that the appointments to the posts of Junior Office Assistant (Code 556) shall be strictly in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 531 posts advertised for Post Code 556 remained unfilled. (V) There was another petition, namely, writ Petition No.2246 of 2019, filed by candidates who were excluded from consideration though they held equivalent qualifications for Post Code 556. Here, an interim order was passed directing that any appointment against Post Code 556 shall be subject to the orders passed in that petition. (W) On 06.12.2019, the State Government directed the Commission to treat the recruitment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, therefore, was that the select list must comprise of only such candidates who hold the prescribed minimum eligibility qualifications by the last date for receipt of the application under the advertisement. Such a challenge was laid through Writ Petition No. 34 of 2019, which was originally filed before the Tribunal as O.A. No. 5543 of 2017. 6. In respect of recruitment against the second advertisement for Post Code 556, challenge was laid by those who either held qualifications at variance from the one prescribed, or had certificate(s)/diploma(s) fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 information technology has caused a sense of urgency for appointment(s) on the posts advertised across various departments of the State Government. This is reflected by successive advertisements for the posts. In that scenario, to meet the exigency, if an exercise to constitute an equivalence committee was undertaken pursuant to a judicial order of the Tribunal dated 30.06.2017, which was not assailed by any of the writ Petitioners, departure, if any, from the 2014 Rules cannot be faulted. Otherwise also, where Rules are ambiguous, and it may take time to amend the rules, relax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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 reduced to that extent. However, as per the decision of the High Court, the candidates who professed holding qualifications higher than the one prescribed were not to get any benefit as that issue already stood concluded vide judgment and order of the High Court dated 29.08.2019, passed in Writ Petition No.161 of 2019, against which SLP (C) No.45 of 2021 was dismissed by this Court. Appeals Before This Court 12. (A) Arising out of SLP (C) No. 730 of 2022: This appeal questions the direction given in paragraph 33 of the impugned judgment. The Appellants herein claim that they hold the requisite eligibility qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 claim to have possessed qualifications higher than the one specified in the Advertisement for Post Code 447. According to them, they hold Degree instead of Diploma and Degree being higher than Diploma, they were eligible. Yet another I.A. No. 188852 of 2022 has been filed to bring on record: (i) An RTI query report dated 02.07.2022. This is to the effect that the relaxation order dated 21.08.2017 was not published in any Newspaper, E-Gazette or Official website; and (ii) A chart containing reasons as to why some of the selected candidates were not qualified/ eligible for consideration against Post Code 447. Note: It is not clear whether this chart was ever placed bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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 that relaxation was necessitated because, (a) there could be confusion as to the true import of the expression "recognized University/Institution" and (b) there could be institutions conducting the same course under a different nomenclature. These observations of the High Court were in ignorance of the statutory regime in place since 1986 vide Himachal Pradesh Takniki Shiksha Board Act, 1986 (1986 Act) and the Regulations framed thereunder, set out below: Section 2 of the 1986 Act provides: In this Act, unless the context otherwise requires,- (a) "affiliated institution" means an institution affiliated to the Board in respect of any course or courses of study in accordance with the provisions of the Act or regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Board in following terms: 13. Power of the Board.- (1) The Board shall, subject to the provisions of this Act and the Rules made thereunder, have all such powers as may be necessary for the discharge of its functions and the performance of its duties under this Act and Rules or regulations made thereunder. (2) In particular and without prejudice to the generality of the foregoing powers, the Board shall have the powers- (i) after giving the candidate a reasonable opportunity of being heard, to cancel an examination, or withhold the result of an examination, of a candidate, or to disallow him from appearing at any future examination who is found by it to be guilty of- (a) using unfair means in the examination; (b) making any incorrect statement or suppressing material information or fact in the application form for admission to the institution or to the examination; (c) fraud or impersonation at the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be final. Section 15 of the 1986 Act confers power on the Board to make regulations in following terms: 15. Power to make regulations: (1) The Board may, for carrying out the purposes of this Act, make regulations consistent with the provisions of this Act and the Rules framed thereunder and submit the same for approval of the State Government. The State Government may approve, modify or vary the regulations. The regulations, as approved by the State Government, shall be published in the Official Gazette and shall take effect from the date of publication, and where a date has been specified from that date. (2) Without prejudice to the generality of the foregoing powers, the regulations may provide for- (a) the appointment, constitution, powers and duties of the committees and sub-committees constituted under this Act; (b) the manner and conditions of conferment of certificate and diplomas; (c) the conditions for affiliations of institution; (d) the courses of study to be prescribed for certificate and diploma examinations; (e) the conditions under which candidates shall be admitted to the examination of the Board and shall be eligible for certificates and diplom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d certificates issued by the Board, NCVT and SCVT will stand automatically recognized by the Government of Himachal Pradesh for the purposes of employment in Subordinate services. By placing reliance on the aforesaid statutory provisions and regulations, it was urged that the State was under an obligation to bring the statutory regime to the notice of the High Court so as to remove doubts, if any, about the true import of the phrase "recognized institution" as it occurs in the 2014 Rules. (iii) In addition to the above, the State had notified Himachal Pradesh Private Educational Institutions (Regulatory Commission) Act, 2010 (2010 Act) which established a Regulatory Commission and prescribed a regulatory framework for ensuring appropriate standard of admission, teaching, examination, research and protection of interest of students in Private Educational Institutions and for matters connected therewith or incidental thereto. (iv) Further, vide letter dated 23.05.2017, the Director of Higher Education provided a list of Institutes recognised by the Takniki Board. Even RTI noting records that vide letter dated 14.06.2017 the Director, Technical Education had provided details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as per the 2020 Rules. The third advertisement also applied the same 2020 Rules; therefore, recruitment could not have been in terms of the 2014 Rules. Thus, relaxation under the 2014 Rules could not have been used to fill up posts advertised under the third advertisement. Therefore, High Court's direction to segregate the posts that were carried forward from the second advertisement and hold recruitment under the old Rules was completely misconceived. More so, when employer cannot be forced to fill all notified vacancies as per old Rules. Submissions on behalf of Respondents 17. Mr. Vivek Narayan Sharma, who appeared for Respondent No. 7 in SLP (C) No.730, Respondent No. 5 in SLP (C) No.729 of 2022 and applicants in I.A. No.26627 of 2022 filed in SLP (C) No.730 of 2022 and I.A. No.73507 of 2022 filed in SLP (C) No. 730 of 2022, submitted: (i) The High Court justifiably upheld clarifications dated 21.08.2017 and 19.03.2018; (ii) The Respondent(s) are eligible in terms of the aforesaid clarifications; (iii) The argument that to be considered recognised, an institution must have recognition from the Takniki Board has been raised for the first time in rejoinder before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from recognized institutes. Initially, candidature of all those who did not fulfil the eligibility criteria as per 2014 Rules was rejected. However, several of them approached the Tribunal. On 30.06.2017, in O.A. No.2830 of 2017, the Tribunal passed an interim order that candidates holding one year diploma, though with a different nomenclature than the one prescribed, may be considered subject to decision of the State Government on its equivalence with the one prescribed. Pursuant thereto, on 21.08.2017 the State Government issued a clarification that all candidates having one year diploma in computer or higher education in Computer Science/Application/IT from any private institution may also be considered for selection. (ii) The letter dated 21.08.2017 is clarificatory in nature and within the scope of powers conferred by Rule 18 of the 2014 Rules, and was necessitated on account of ambiguity in the 2014 Rules. The clarification widens the zone of consideration by including those who were successful in the written examination and typing test, therefore, it causes no prejudice to the interest of the State. (iii) The clarification was approved by the State cabinet in its meet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to recognise a private institute in the State. Considering this, the State Government considered registered institutes as recognised institutes. Moreover, selected candidates were appointed after undergoing tests and they have been working since long and have also been regularised. Therefore, their appointment must not be disturbed. Discussion and Analysis 21. We have considered the rival submissions and have perused the record. 22. The facts as regards which there exist no dispute are: (a) that recruitment under the first two advertisements relating to Post Code 447 and 556 were to be made when the 2014 Rules were in vogue and validity of which has not been questioned by any of the parties; (b) that the first two advertisements prescribed same eligibility qualifications as prescribed by the 2014 Rules; (c) that the advertisements specifically stipulated that candidates must hold prescribed essential qualifications by the last date for receipt of application or by the date specified therein; (d) that relaxation/clarification order was issued without consultation with the Himachal Pradesh Public Service Commission; and (e) that when the relaxation order or cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular Schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India. 30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication/Information Technology from a recognized University/Institution" was one of the essential qualifications which an aspiring candidate was required to possess to be eligible for the post. According to the High Court, it was ambiguous because "recognized Institution" was not defined. Therefore, to provide clarity as to what was a recognized Institution, Under Orders of the Tribunal, the relaxation/clarification order dated 21.08.2017 was issued. According to the Appellants, this exercise was not acceptable because there existed a statutory regime in the 2010 Act and the Regulations framed thereunder empowering a Takniki Board to accord recognition/affiliation to institutes awarding diploma/certificate on successful completion of such courses. It is their case that the State did not place the statutory regime before the High Court and, therefore, the High Court overlooked the same while accepting the plea of ambiguity in the 2014 Rules. 30. On perusal of the record we could not find that the clarificatory/relaxation order providing equivalence to certain courses was founded on empirical data that courses identical, or by and large identical, to the one specified in the extant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the employer/ recruiting agency seeks to adopt the change, it will be incumbent on the employer to issue a corrigendum incorporating the changes to the notification and invite application from those qualified as per the changed criteria and consider the same along with the applications received in response to the initial notification. We respectfully agree with the above view as it is in consonance with the constitutional mandate. 33. In this view of the matter, even if we assume that the State had power to relax the eligibility criteria, the same could not have been done mid-stream without giving wide publicity of such change, and opportunity to similarly situated candidates to apply and compete with others. 34. As there appears nothing on record to indicate that wide publicity of such relaxation in the specified qualifications was made, and opportunity was afforded to similarly situated candidates to apply and compete, in our view, considering the manner in which the relaxation was accorded, the same falls foul of the constitutional mandate enshrined in Articles 14 and 16 of the Constitution. Issue Nos.(ii), (iii) and (iv) are answered in the above terms. Issue No.(v): ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013) 3 SCC (L&S) 664] turned on a specific statutory Rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a Rule in the present case makes a crucial difference to the ultimate outcome. ..... 27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be underst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat out of 1421 posts advertised, 809 candidates appointed did not hold qualifications as per the 2014 Rules; they got selected only because of the illegal relaxation order. Further, by now at least 73 posts under Post Code 447 have fallen vacant, either due to resignation by the appointed candidates or otherwise, while there are only 29 SLP Petitioners waiting for their chances. It is thus prayed on behalf of these Appellants that they be considered for appointment. 42. Before we proceed to notice the response to the above contentions, it may be noted that, though in SLP (C) No. 4321 of 2022 all such candidates whose qualification has been challenged are impleaded, as per office report dated 23.03.2023, notices were not served on them directly, rather it was served through Respondent No. 1 (State of H.P.). Further, from the record it appears that O.A. No.5543 of 2017, out of which SLP (C) No.4321 of 2022 arises, was filed by initially impleading only two selected candidates as would be clear from the date chart submitted by the SLP Petitioners. Otherwise also, in O.A. No.5543 of 2017, it has not been specifically disclosed as to how those candidates were ineligible. Therefore, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion and conclusion, we direct/order as under: (i) The relaxation/clarificatory order dated 21.08.2017, as approved by the State cabinet on 18.09.2017, being after the last date fixed by the advertisements dated 13.02.2015 (i.e., for Post Code 447) and dated 18.10.2016 (for Post Code 556) for receipt of applications from candidates, is not legally sustainable qua those posts (i.e., Post Codes 447 and 556), particularly, when no opportunity was afforded to similarly placed persons, who might have been left out, to apply and compete with those candidates who, though not eligible as per the terms of the advertisement, had applied thereunder; (ii) 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. In consequence, (a) the merit list prepared under the second advertisement for Post Code 556 shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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