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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 ..... nce/Computer Application/Information Technology from a recognised University/Institution by a candidate - eligibility of qualifications other than the one prescribed by the 2014 Rules or the advertisement - State (i.e., the employer) could be forced to fill all vacancies advertised or not. Whether relaxation in the essential eligibility qualifications could be made post the last date fixed for receipt of application from the candidates? - HELD THAT:- 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. 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 adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal mandate enshrined in Articles 14 and 16 of the Constitution. 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? - HELD THAT:- A plain reading of the 2014 Rules and the advertisement would indicate that possession of one year diploma in Computer Science/ Computer Application/ Information Technology from a recognised University/ Institution is an essential qualification which must be possessed by a candidate desirous of appointment on the post concerned. The High Court has also not treated the same as a non-essential qualification. In this view of the matter, the argument that requirement to hold one year diploma in the specified courses was not an essential qualification, is rejected. Whether candidates holding qualifications other than the one prescribed by the 2014 Rules or the advertisement, though allegedly higher, could be considered eligible? - HELD THAT:- There exists no provision in the extant Rules or the advertisement to treat any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II (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 for the post of JOA in various departments of the Government. Relevant provisions of the 2014 Rules are detailed below: (1) Rule 7 prescribed qualifications for the post of JOA as follows: (a) Essential Qualification: (i) 10 + 2 from a recognized Board of School Education/University, (ii) One year diploma in Computer Science/ Computer Application/ Information Technology from a recognized University/Institution and (iii) Computer typing speed of 30 words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 post. (D) In response to the above, on December 2, 2015, the Additional Chief Secretary (Personnel) to the Govt. wrote a letter to the Selection Board stating: It is informed that the provisions of the Rules regarding essential qualifications are crystal clear which provides that Diploma in Computer Science, Computer Application, Information Technology from a recognized University/Institution/ITI OR O Or A level diploma from National Institute of Electronics and Information Technology (NIELIT) only are re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 qualification in Computer Science/Application/IT from any private Institution like from Society under Societies Act, Rashtriya Saksharta Mission IT programme/Skill Development Programme etc. be considered for final selection subject to having successfully passed their skill test i.e. Typing Test on Computer and after having obtained their undertaking/ declaration certifying that they had attended the classes/ diploma course by attending the classes regularly. (2) That the Computer Science is not limited to the specific nomenclature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alifications 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 to be registered as Writ Petition No. 34 of 2019 before the High Court. This was by those candidates who were not placed in the select list. Their claim was that the relaxation order dated 21.08.2017 resulted in inclusion of ineligible candidates and, therefore, they were ousted from the merit list. In this O.A. No. 5543 of 2017), the relief(s) sought were: (i) That clarification dated 21.08.2017 and Office Order dated 18.09.2017 be quashed and set aside; and (ii) That Commission be directed to prepare a merit list from amongst those candid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accordance with the Common Recruitment Promotion Rules for the posts of Junior Office Assistant (Information Technology), Class-Ill (Non- gazetted) in various Departments of Himachal Pradesh Government, as also Advertisement No. 32-3/2016 and not in terms of communication, dated 19th March 2018. A review of the order dated 28.08.2018 was sought, which was decided on 05.11.2018 in the following terms: Be that as it may, as the matter is sub judice before the learned Tribunal and the Committee which has submitted its report on 21.08.2017, has been so constituted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 process for Post Code 556 concluded. It also requested the Commission to re-advertise the unfilled posts and carry out recruitment as per new Common Recruitment Promotion Rules of the year 2020, which prescribed the essential qualifications as follows: (a) ESSENTIAL QUALIFICATION(S): (i) Should have passed 10+2 from a recognized Board of School Education /University. OR Matriculation from recognized Board of School Education with one/two year's Diploma/Certificate from an Industrial Training Institute (ITI) in Information Technology Enabled Sectors (ITES) as notified by Director Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alifications. 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) from such institutes that were not considered recognized. Their challenge was premised on the relaxation granted earlier in connection with the exercise under the first advertisement for Post Code 447. Their case was that once relaxation to the eligibility conditions prescribed in the 2014 Rules was allowed qua the first advertisement, the recruitment to the same post, advertised as Post Code 556, under the same set of Rules, must be subject to same relaxation. These candidates, therefore, challenged rejection of their candidature and prayed that the merit-list be re-drawn by treating their candidature as valid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echnology 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, relaxation and clarifications are permissible as part of administrative exigency. (iv) There is nothing on record to infer that action of the State Government/HPSSC was actuated by extraneous consideration(s) or lack of bona fide(s). (v) The Petitioners could not substantiate that anyone or more of the selected persons obtained the requisite qualifications after the cut-off date. Impugned Decision of the High Court 9. In light of the findings/observations noticed above, the High Court dismissed Writ Petition No. 34 of 2019 which questioned the relaxation order; and upheld the process of selection and appointment against Post C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 qualifications prescribed by the 2014 Rules as well as the advertisement; they participated in the recruitment exercise for Post Code 556 and were placed in the merit-list; if candidates who were otherwise not eligible, but for the relaxation, are permitted to be considered, as directed in paragraph 33, the merit-list might have to be re-drawn and they may be ousted and replaced by those who, otherwise, were ineligible. These Appellants have, therefore, prayed that the direction given by the High Court in paragraph 33 of the impugned judgment be quashed and the earlier merit- list be not disturbed. In this appeal, intervention/impleadmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee 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 before the High Court. (D) Arising out of SLP (C) No. 9977 of 2022: This appeal is by those candidates who participated under the second advertisement and got selected for appointment against Post Code 556. They are aggrieved by the direction contained in paragraph 33 of the impugned judgment. They apprehend that if the merit-list is re- drawn by including those who were otherwise ineligible under the 2014 Rules, they may go out of the merit-list. Their case is thus identical to the Appellants in the appeal arising out of SLP (C) No. 730 of 2022. In this appeal, I.A. No. 77624 of 2022 has been filed to bring on record an application filed by one of the candidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 regulations made thereunder; (b) Board means the Himachal Pradesh Takniki Shiksha Board established Under Section 3; (e) certificate means the certificate awarded by the Board to a person for successfully completing in an affiliated institution such courses of study as may from time to time be prescribed by regulations; (g) diploma means a diploma awarded by the Board to a person for successfully completing in an affiliated institution such courses of study as may from time to time be prescribed by regulations; (i) industrial training means training imparted to students in Industrial Training Institutions; (j) institution means institution imparting technical education and industrial trai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 examination; (d) securing admission to the examination in contravention of the Rules governing admission to such examination; or (e) any act of gross indiscipline in the course of the examination; (ii) to deduct marks at any examination of any candidate found by it to be guilty of any act of indiscipline in the course of the examination; (iii) to cancel the result of an examination of any candidate found by it to be guilty of all or any of the acts mentioned in Sub-clauses (a) to (d) of Clause (i) or for any bona fide error of the Board in the declaration of the result: Provided that the result of an examination shall not be cancelled on the ground of a bona fide error of the Board, after the expiry of 90 days from the date of announcement of the result of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 diplomas; (f) the fees for admission to the examinations of the Board and the manner of their realisation; (g) the conduct of examinations; (h) the appointment of examiners, moderators, collators, scrutinizers, tabulators, centre inspectors, superintendents of centres and invigilators, and their duties and powers in relation to the Board's examinations, and the rates of their remuneration; (i) standards for buildings, including land appurtenant thereto, the equipment and apparatus necessary for institutions seeking affiliation; (j) publication of results of examinations conducted by the Board; (k) the minimum educational and other qualifications for admission of students to an affiliated institution; (l) admission of students to affiliated institutions; (m) the inspection of affiliated institutions wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate 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 all such institutes. Thus, there was neither any ambiguity in the 2014 Rules nor any doubt about the recognised institutes. Hence, no relaxation/clarification was required. (v) The relaxation order dated 21.08.2017 was a colourable exercise of powers to push forward a list of unrecognised institutes having support of powerful lobbies. (vi) Impugned relaxation being after the last date fixed for receipt of the application is in teeth of the law settled by this Court in Rakesh Kumar Sharma v. State (NCT of Delhi) Ors (2013) 11 SCC 58. That apart, in absence of power reserved in the advertisement to relax the eligibility criteria, and there being no publicity of such relaxation, relaxation of the eligibility criteria falls foul of the law laid down by this Court in Bedanga Talukdar v. Saifudaullah Khan (2011) 12 SCC 85 and Sanjay K. Dixit v. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 this Court, therefore, it cannot be entertained at this stage; (iv) The appointments under Post Code 556 were subject to the outcome of the litigation, therefore the appointees have no right to challenge the decision of the High Court; (v) The prescribed essential qualification is in fact a non-essential qualification, inasmuch as selection is made after undergoing rigorous selection process such as written test, typing test and interview. Therefore, Diploma is not an essential qualification; (vi) The term recognized institution occurring in the 2014 Rules is ambiguous and, therefore, required clarification. In this regard, reliance was placed on a decision of this Court in Dhananjay Malik v. State of Uttaranchal (2008) 4 SCC 171; (vii) Rule 18 conferred power on the State to relax the Rules. Consultation with Public Service Commission was not required because u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 meeting held on 18.09.2017, which had the power to relax the Rules Under Rule 18 of the 2014 Rules. Such relaxation could be without consultation of the Commission in light of Regulation 3 of the 1973 Regulations. Moreover, the clarification was issued in public interest considering the urgency to fill the vacant posts. (iv) The State Govt. vide letter dated 19.03.2018 directed the Commission to implement the clarification dated 21.08.2017 in respect of Post Code 556 also, as both (i.e., Post Code 447 and Post Code 556) required same set of qualifications and were to be filled under the 2014 Rules. (v) The State has power to prescribe qualifications for the recruitment. Essential qualifications for appointment to a post are for the employer to prescribe and the question of equivalence falls outside the domain of judicial review. In this regard, reliance was placed on a decision of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed 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 clarificatory letter, as the case may be, was issued, the last date for receipt of application under the two advertisements had passed. Issues: 23. In the aforesaid factual backdrop, the crucial issues that arise for our consideration are: (i) Whether relaxation in the essential eligibility qualifications could be made post the last date fixed for receipt of application from the candidates? (ii) Whether the essential eligibility qualifications specified in the 2014 Rules were ambiguous as to warrant clarification or relaxation with a view to declare certain other qualifications as equivalent to the one specified in the said Rules? (iii) Whether there was a statutory regime in place to accord recognition to an Institution? If yes, whether the clarificatory letter/relaxation order is in ignorance of such statutory regime and is, therefore, invalid? (iv) Whether, in absence of prior consultation with the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained 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 regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India. 32. .......... It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant Rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement (Emphasis supplied) 26. The above decision has been followed in Sanjay K. Dixit (supra). Thus, the law is settled that if the extant Rules provide for the power to relax the eligibility criteria, the same could be exercised only if such power is reserved in the advertisement. And w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rules were being conducted by various recognized institutions or Universities under different nomenclatures. In fact, what the clarificatory or relaxation order does is that it proceeds to impliedly recognize certain courses/diploma obtained from a private Institution, like from a society registered under Societies Registration Act or Rashtriya Saksharta Mission IT program/Skill Development Program, without examining whether under the extant statutory regime they could be considered recognized. 31. In our view, if there existed a statutory procedure for granting recognition, an Institution cannot be considered recognized dehors that procedure. No doubt, as held by a Constitution Bench of this Court in Mohammad Shujat Ali and Ors. v. Union of India and Ors. (1975) 3 SCC 76, issue of equivalence 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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): 35. A plain reading of the 2014 Rules and the advertisement would indicate that possession of one year diploma in Computer Science/ Computer Application/ Information Technology from a recognised University/ Institution is an essential qualification which must be possessed by a candidate desirous of appointment on the post concerned. The High Court has also not treated the same as a non-essential qualification. In this view of the matter, we reject the argument that requirement to hold one year diploma in the specified courses was not an essential qualification. Issue No.(v) is decided accordingly. Issue No.(vi): 36. The 2014 Rules as well as the advertisement in clear terms prescribed the essential qualification as follows: (i) 10 +2 from a recognised Board of School Education/ University. (ii) One year Diploma in Computer Science/ Computer Application/ Information Technology from a recognised University/ Institution. (iii) Computer typing speed of 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally 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 understood in the context of a specific statutory Rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific Rule that the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission (2010) 15 SCC 596 : (2013) 3 SCC (L S) 664] turned. (Emphasis supplied) 38. In light of the law above, since we find that there exists no provision in the extant Rules or the advertisement to treat any other qualification as higher or equivalent to the one specified therein, the claim of such candidates, who could not demonstrate that they held the prescribed essential qualifications, is liable 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 situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, even if we assume that all those selected candidates were impleaded later, it is not clear, firstly, whether they were served with notice of the proceedings before the High Court or the Tribunal, and, secondly, whether any foundation was laid before the High Court or Tribunal to individually question their eligibility qualification. 43. In the above backdrop, on behalf of the State-Respondents it is contended that such appointments were made under the first advertisement more than five to six years ago. Such appointees have not only passed the written test but have also cleared computer typing test. They are Class III (Non-gazetted) employees who, by virtue of long experience, have not only gained 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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