2023 (8) TMI 1594 - HC - Indian Laws

Cost Accountants can be treated equivalent to Chartered Accountants for the appointment of Director (Finance) in CPSE or not - violation of Articles 14 and 16 of the Constitution - issuance of writ of mandamus to set aside the preference clause without challenging the decision of the expert committee or the minutes of the meeting - HELD THAT - There exists distinction between the role and responsibility of Chartered Accountants and Cost Accountants as the said provision only provides for Chartered Accountants as explanation of the term accountants which is not replaceable with the Cost Accountants. Therefore, it is established that the Chartered Accountants are treated differently than Cost Accountants in some statues and there can be no embargo upon the authorities to treat them differently. Whether treating two qualifications differently would amount to discrimination, thereby violating the fundamental right of the petitioner as provided under Article 14 of the Constitution of India? - HELD THAT - On perusal of Article 14 of the Constitution of India, it is clear that the denial of equality by the state is prohibited and the breach of the same amounts to violation of the fundamental rights of the citizens. At the same time, the Article 16 also permits reasonable classification based on intelligible differentia. In order to analyse whether the said condition has been met in the instant case, it is imperative to look into the judicial dicta dealing with the similar issue and whether the settled position of law can be made applicable in the instant case. In the case of T.R. Kothandaraman v. T.N. Water Supply Drainage Board 1994 (9) TMI 357 - SUPREME COURT , the Hon ble Supreme Court examined the classification created for separate qualification and held that the nature of the job does permit the Government to prefer better qualified persons if the job entails the work to be handled specifically by a person having specific qualification. In the case of Chhattisgarh Rural Agriculture Extension Officers Assn. v. State of M.P., 2004 (4) TMI 668 - SUPREME COURT (LB) , the Hon ble Supreme Court allowed the state to differentiate for the appointment on the basis of different qualifications and held that the state cannot be said to have acted illegally in granting a higher pay scale for the higher qualification. 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 - In the instant case, it is already established that the Cost Accountants and the Chartered Accountants are not similarly placed as the same are defined and governed under two separate statutes of the Parliament. On perusal of the Section 288 of the Income Tax Act, 1961, it is also made out that some legislations do specifically provide for Chartered Accountants instead of the Cost Accountants as an explanation to the term Accountant . Hence, the difference in both the profiles has already been established. Thus, it is crystal clear from the above discussion that the Cost Accountants and the Chartered Accountants cannot be similarly placed for appointment to the post of Director (finance) in the respondent Organization and treating them differently does not amount to discrimination and violation of fundamental rights as enshrined in the Constitution of India - on establishment that no prejudice was caused to the petitioner by preferring Chartered Accountants over the Cost Accountants, and the classification as created for the post of Director being well within the bounds of the respondent Body, this Court is inclined to answer the issue in favour of the respondents and against the petitioners. Whether the court can issue a writ of mandamus to set aside the preference clause without challenging the decision of the expert committee or the minutes of the meeting? - HELD THAT - In the instant case, even though it is contended that this Court while exercising its power under Article 226 of the Indian Constitution can set aside the preference clause from the said Advertisement/JD, it is imperative to satisfy the question of whether the writ of mandamus can be issued to direct the respondents to do away with the preference clause inserted in the Advertisement/JD when the decision of the expert committee stemming from the meeting dated 19th August, 2021, is not under the challenge before this Court. It is imperative to refer to the settled position of law with regards to the said issue. In Bachhaj Nahar v. Nilima Mandal 2008 (9) TMI 967 - SUPREME COURT , 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 where it was held that ' The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.' In Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi 2009 (11) TMI 942 - SUPREME COURT , the Hon ble Supreme Court discussed the scope of Writ Court and held that even though the courts have wide discretion in deciding the writs, they cannot grant a relief not prayed by the petitioner - in light of the settled principles regarding both issuance of mandamus and principles governing the grant of reliefs, this Court is not inclined to delve into an issue which is not prayed for in the petition. Therefore, this sub-issue is also answered in favour of the respondents. Where the question of whether this Court can set aside a decision taken by the high level expert committee needs to be decided? - HELD THAT - In the instant case, it is clear that the petitioner has not questioned the constitution of the respondent Body rather, has only challenged the preference clause inserted in the qualification section of the Advertisement/JD notified by the respondent Body for the vacant post of Director (Finance) in the respondent Organization - Hence, it is a settled principle of law that the decisions taken by such experts need not be questioned until and unless there is clear bias on part of the experts and mala fide is established by adducing sufficient evidence or the constitution of the committee is under challenge which is not the case in the instant petition. In light of the foregoing discussion and the settled principle of law, this Court does not find any compelling reasons to get into the decision made by the expert committee as it is assumed that the experts looked into all the aspects relating to the selection process and then decided to prefer the Chartered Accountants over Cost Accountants and this sub issue is also answered in favour of the respondents. The instant petition is devoid of merits and is dismissed.

Summary

Issues Involved:

1. Whether Cost Accountants can be treated equivalent to Chartered Accountants for the appointment of Director (Finance) in CPSEs, and whether such preference violates Articles 14 and 16 of the Constitution.
2. Whether the court can issue a writ of mandamus to set aside the preference clause without challenging the decision of the expert committee or the minutes of the meeting.

Detailed Analysis:

Issue I: Equivalence of Cost Accountants and Chartered Accountants

The court examined whether Cost Accountants and Chartered Accountants can be treated as equivalent for the appointment of Director (Finance) in CPSEs. The advertisement in question preferred Chartered Accountants over Cost Accountants. The court analyzed the roles and governing statutes of both professions, noting that they are regulated by different acts and have distinct roles. The court highlighted that some statutes, like the Income Tax Act, specifically distinguish between the two, indicating a legislative intent to treat them differently.

The court further explored whether such differentiation violates Articles 14 and 16 of the Constitution, which ensure equality before the law and equal opportunity in public employment. Citing precedents, the court noted that reasonable classification based on intelligible differentia is permissible. The differentiation between Chartered Accountants and Cost Accountants was deemed reasonable, given the broader financial management responsibilities associated with the Director (Finance) role, which Chartered Accountants are better suited to handle. Therefore, the preference did not amount to discrimination or violate fundamental rights.

Issue II: Issuance of Mandamus and Expert Committee Decisions

The petitioner sought a writ of mandamus to quash the preference clause. The court discussed the nature and scope of mandamus, which is issued to compel the performance of a public duty. However, the court emphasized that relief cannot be granted for issues not explicitly prayed for in the petition. The petitioner did not challenge the minutes of the meeting or the decision of the expert committee that led to the preference clause.

The court noted that expert committees, such as the respondent Body, are constituted to make informed decisions regarding high-level appointments and their decisions should not be interfered with unless there is evidence of bias or procedural irregularity. The petitioner did not question the constitution of the expert committee, nor was there any indication of mala fide intent. Therefore, the court found no grounds to interfere with the expert committee's decision.

The court also addressed the petitioner's reliance on a previous case where a preference clause was interpreted differently. However, the court distinguished the circumstances of the current case, noting that the petitioner was a below-board level employee applying for an internal vacancy, unlike the previous case involving an external vacancy and a board-level applicant.

Finally, the court observed that the petitioner applied for the position despite the preference clause and only challenged it after failing to be shortlisted. Citing legal precedents, the court held that a candidate cannot challenge the selection process after participating in it and failing to succeed.

Conclusion:

The court concluded that the preference for Chartered Accountants over Cost Accountants was justified and did not violate constitutional rights. The petitioner's request for mandamus was denied as it was not supported by a challenge to the underlying decision-making process. The petition was dismissed, and the court emphasized the necessity for CPSEs to appoint well-qualified candidates to ensure efficient operations.