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TMI Blog2023 (8) TMI 1594X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing reliefs: a) Issue interim reliefs being sought by the Petitioner by way of the present petition as given in Grounds A and B under Grounds for Interim Relief; b) Issue a writ in the nature 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour. Respondents shall permit the Petitioner for the interview, without prejudice to their rights and contentions in the 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chartered Accountants are being preferred over Cost Accountants 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent needs 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment/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 Accountant/Cost Accountant/MBA/PGDM will be a desirable educational qualification. 4. EXPERIENCE: (i) The applicant should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Charte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (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 addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.] 33. On perusal of the aforesaid provisions, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 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 form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 proficiency of the candidates in the particular craft. It is open to the Government to consider also the general educational attainments of the candidates and to give preference to candidates who have a better educational qualification besides technical proficiency of a tracer. The relevance of general education even to technical branches of pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 inasmuch as the number of persons to be affected would be in thousands, as it has been stated in paragraph 22 of the counter affidavit filed on behalf of the Board in CA No. 559 of 1991 that the number of qualified diploma holders and degree-holders in all branches would be in region of 1000; Junior Engineers Grade-I about 2000 and Assistant Engineers also 2000. 36. In the case of Chhattisgarh Rural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has also been explained by the Hon ble Supreme Court in a catena of judgments. In the case of CAG v. K.S. Jagannathan, (1986) 2 SCC 679, the Hon ble Supreme Court discussed scope of mandamus and held that the Courts can issue mandamus where a government or a public authority has failed to exercise the discretion conferred upon it. The Hon ble Court held as follows: 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 prevent any deviation from the course which litigation on particular causes must take. 13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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. 55. Now, coming to sub-issue ii), where the question of whether this Court can set aside a decision taken by the high level expert committee needs to be decided. 56. Based on the foregoing discussion, it is evident that the petitioners have challenged the preference clause where preference has been given to the Chartered Accountants over Cost Accountants. It is also clear that the said decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 infirmity. As has been stated earlier the expert body has to evolve some procedure for assessing the merit and suitability of the applicants and the same necessarily has to be made only by allotting marks on different facets and then awarding marks in respect of each facet of a candidate and finally evaluating his merit. It is too well settled that when a selection is made by an expert body like the Public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, the courts s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 62. 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. 63. Therefore, in light of the foregoing discussion and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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- -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 guidelines issued by the respondent no. 1 itself for determining the inter-se seniority of the applicants in the same pay scale for purposes of shortlisting. I may, therefore, now refer to the PESB guidelines regarding Board Level Appointments in CPSEs. The relevant extract of the PESB guidelines titled as Revision of policy of determination of inter-se seniority amongst candidates of sectoral and external category of CPSE , reads as under: Revision of policy of determination of inter-se seniority amongst candidates of sectoral and external category of CPSE The practice in the PESB for determining inter-se seniority of the applicants in the same pay scale for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence 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.t. date of birth i.e. older getting preference over the younger applicant. 20. A perusal of paragraph a of the aforesaid guideline clearly shows that preference has to be given to the applicants drawing a higher pay scale. Similarly, paragraph b (i) of these guidelines clearly prescribes that, if pay scale of the applicants under consideration is same, then Board level applicants will be given preference over the applicants who are below the Board level. Thus, these guidelines also envisage granting of preference to applicants in certain situations. Firstly, preference is to be given to candidates having higher pay scale and, secondly, preference is to be given to board level applicants vis- -vis applicants who are below the board level. 21. In the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 position since August 2018 in a scheduled-B CPSE, and she also holds a doctorate degree. It will indeed be a travesty of justice if she is altogether excluded even from consideration for selection for the post of Member (Finance) in respondent no. 2, and that too by giving preference over her to two below Board level officers in the impugned list under the external category. 66. On perusal of the aforesaid paragraphs, it is clear that the petitioner in the aforesaid case was Director (finance) in another CPSE and was ignored despite the fact that the other selected candidates were below board level employees. While interpreting the preference clause in that case, the coordinate bench of this Court had relied upon the internal meeting decision dated 31st January, 2018 whereby it was decided by the committee to prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 Hon ble Supreme Court discussed the issue of selection process challenged by the parties once they fail in getting selected for the vacant posts and held as follows: 9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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