As per the case facts, the recruitment process involved candidates who became eligible through a relaxation order issued after the official application deadline. The High Court had previously ruled on ...
2023 INSC 992 Special Leave Petition (C) No. 730 of 2022 Page 1 of 57
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7602 OF 2023
(@ SLP (C) NO. 730/2022)
ANKITA THAKUR & ORS. ……APPELLANTS
VERSUS
THE H.P. STAFF SELECTION
COMMISSION & ORS. …RESPONDENTS
WITH
CIVIL APPEAL NO. 7603 OF 2023
(@ SLP (C) NO. 729/2022)
CIVIL APPEAL NO. 7604 OF 2023
(@ SLP (C) NO. 4321/2022)
CIVIL APPEAL NO. 7605 OF 2023
(@ SLP (C) NO. 9977/2022)
CIVIL APPEAL NO. 7606 OF 2023
(@ SLP (C) NO. 17676/2022)
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
2. All these appeals are directed against a common
judgment and order
1 of the High Court
2 disposing of a
1
Order dated 31.12.2021
2
High Court of Himachal Pradesh
Special Leave Petition (C) No. 730 of 2022 Page 2 of 57
batch of writ petitions as well as intra-court appeals
concerning recruitment on the post of Junior Office
Assistant
3, a Class III (Non-gazetted) post, under the
Government of Himachal Pradesh
4. 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
5, framed under the proviso to
Article 309 of the Constitution of India
6, were notified
with a view to have common recruitment and
promotion rules for the post of J OA 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,
3
JOA
4
Govt.
5
2014 Rules
6
Constitution
Special Leave Petition (C) No. 730 of 2022 Page 3 of 57
(ii) One year diploma in Computer Science/
Computer Application/ Information
Technology from a recognized
University/Institution and
(iii) Computer typing speed of 30 words per
minute in English or 25 words per minute in
Hindi
OR
(i) 10 + 2 from a recognized Board or School
Education/University.
(ii) ‘O’ or ‘A’ level Diploma from National
Institute of Electronics & Information
Technology (NIELIT)
(iii) Computer typing speed of 30 words per
minute in English or 25 words per minute in
Hindi
OR
(i) 10 + 2 from a recognized Board or School
Education/University.
(ii) Diploma in Information Technology (IT) from
a recognized ITI/Institution.
(iii) Computer typing speed of 30 words per
minute in English or 25 words per minute in
Hindi
(b) Desirable Qualification(s):
Knowledge of customs, manners and
dialects of Himachal Pradesh and suitability
for appointment in the peculiar conditions
prevailing in the Pradesh.”
(2) Rule 15 prescribed the mode of selection for
appointment to the post by direct recruitment as
follows:
“Rule 15. Selection for appointment to the post by
direct recruitment –
Selection for appointment to the post in the case
of direct recruitment shall be made on the basis of
viva-voce test, if Himachal Pradesh Public Service
Commission or other recruiting authority, as the
case may be, so consider necessary or expedient
Special Leave Petition (C) No. 730 of 2022 Page 4 of 57
by a written test or practical test, the standard/
syllabus, etc. of which will be determined by the
Commission or other recruiting authority, as the
case may be.”
(3) Rule 18 conferred power on the State Govt. to
relax any of the provisions of the Rules in
following terms:
“Rule 18. Power to Relax -- Where the State Govt.
is of the opinion that it is necessary or expedient
to do so, it may, by order for reasons to be
recorded in writing and in consultation with the
Himachal Pradesh Public Service Commission,
relax any of the provision (s) of these rules with
respect to any class or category of person (s) or
post(s).”
(B) On 13.02.2015 , Himachal Pradesh
Subordinate Services Selection Board
7 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,
7
Selection Board
Special Leave Petition (C) No. 730 of 2022 Page 5 of 57
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 required and the question of
registered/unregistered institution does not arise.
As regard the information on point -II, the
clarification can be obtained by you from the
Education Department or IT Department.”
(E) The above stand was reiterated in letter dated
February 25, 2016. However, as list of registered /
recognized institutes, whose diplomas / certificates
were valid / recognized for determining eligibility to
Special Leave Petition (C) No. 730 of 2022 Page 6 of 57
the post, was not available, the Commission wrote a
letter to the Director of Higher Education, Himachal
Pradesh, marking its copies to Additional Chief
Secretary (Education), Govt., Director IT, Govt. and
Secretary, H.P. Board of School Education,
Dharamshala, for a list of recognized institutions /
institutes.
(F) Pursuant to the correspondences above, the
Directorate of Higher Education, Himachal Pradesh,
Shimla, vide letter dated 27.05.2017, provided a list of
institutions recognized by Himachal Pradesh Takniki
Shiksha Board
8, Dharamshala, District Kangra,
Himachal Pradesh.
(G) In between, candidature of several candidates
was rejected for not possessing essential qualifications
as prescribed by the 2014 Rules. Aggrieved by
rejection of their candidature, some of these
candidates preferred Original Applications
9 (for short
O.A.) before the Tribunal
10, wherein an interim order
was passed on 30.06.2017. The operative portion of
which is extracted below:
“All the applicants are 10+2. However, the
nomenclatures of the one-year diploma held by
them in Computer is not in consonance with the
nomenclature of the diploma mentioned in the
aforesaid education qualifications. However,
prima facie, it is made out that they are holding
one year diploma in computer. In such
circumstances, there shall be a direction in the
interim to the Respondent Commission to permit
8
Takniki Board
9
O.A. Nos.2830, 2989, 2994, 2998, 3009 and 3026 of 2017
10
Himachal Pradesh State Administrative Tribunal
Special Leave Petition (C) No. 730 of 2022 Page 7 of 57
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 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
Special Leave Petition (C) No. 730 of 2022 Page 8 of 57
they had attended the classes/ diploma course
by attending the classes regularly.
(2) That the Computer Science is not limited to
the specific nomenclature of Diploma prescribed
in the R&P Rules, as such, the Diploma in
Computer and other Higher Qualifications
belonging to Computer Science/ application
irrespective of their nomenclature be also
considered for final selection subject to having
successfully passed their skill test i.e. Typing
Test on Computer and after having their
undertaking/declaration certifying that they
had attended the classes/diploma course by
attending the classes regularly. There may be
instance where certificates are issued instead of
diploma, in such cases, the Commission is to
ascertain and ensure that subjects studied
are at par with one year Diploma course in
Computer Science/ Application/lT.
(3) The date of personal interview of the
candidate concerned in the instant case be
treated as valid date for evaluation/
consideration/ acceptance of his/ her diploma/
essential qualification.
(4) With regard to educational qualification, as
informed during the meeting, the Commission
has sought clarification of equivalence in some
cases from the concerned authorities, therefore,
the Commission need to proceed further in
accordance with the clarification/ decision
obtained from the State Level Board of
Equivalence Committee / H.P. Board of School
Education by accepting the qualification of such
candidate(s) for his job if that is found equivalent
to 10+2 and valid for pursuing higher studies.”
(J) As a result of the above decision, many
candidates who, as per the 2014 Rules, were not
eligible, came within the zone of consideration and as
such included in the select list, resulting in ouster of
such candidates who, though lower on merit, were
otherwise eligible as per the 2014 Rules. Therefore,
Special Leave Petition (C) No. 730 of 2022 Page 9 of 57
some of those ousted candidates laid a challenge to
the merit list before the Tribunal through O.A. No.
5543 of 2017 which, consequent to abolition of the
Tribunal, came to be 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.
Special Leave Petition (C) No. 730 of 2022 Page 10 of 57
(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 candidates
who possess essential and minimum
qualification as mentioned in Advertisement
No. 30 of 2015, dated 13.02.2015, and make
recommendation accordingly.
(M) As in between, another Advertisement (i.e.,
for Post Code 556) was issued, the State Government
vide letter dated 19.03.2018 directed the Commission
to apply the clarification issued on 21.08.2017 for Post
Code 556 as well. The relevant portion of the letter
dated 19.03.2018 is extracted below:
“l am directed to refer to your letters No. HPSSC-
C(2)-970/16 dated 01-01-2018 & 16-02-2018 on
the subject cited above and to say that since the
posts of Junior Office Assistant (IT), Class-III (Non-
Gazetted) have been advertised under different
post codes i.e., Post Code 447 and 556 but are to
be filled up under one set of common Recruitment
& Promotion Rules for the post and as such carry
Special Leave Petition (C) No. 730 of 2022 Page 11 of 57
one or similar cadre, it has been decided that the
clarification dated 21-08-2017, issued by this
department on the directions of Hon’ble Himachal
Pradesh Administrative Tribunal in respect of Post
Code 447, be also implemented in the on-going
process under Post Code 556, being recruitment
for the same post with similar provisions of rules.
However, the clarification/instructions dated 21-
08-2017 are under challenge before the Hon’ble
Court, as such, its implementation will be subject
to final outcome of Hon’ble Court orders so passed
in case of post code 447 in the pending matters.”
(N) The above decision of the State Government
gave rise to another set of litigation (i.e., Writ Petition
No. 7585 of 2019) filed by candidates desirous of
selection strictly as per the 2014 Rules. Whereas
candidates who sought benefit of the relaxation
directed vide letter dated 19.03.2018 filed another set
of petitions. This latter bunch of petitions were allowed
by a Single Judge Bench 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
Special Leave Petition (C) No. 730 of 2022 Page 12 of 57
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 19
th
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 the learned Tribunal,
its recommendations, can be looked into by the
learned Tribunal uninfluenced by any observation
made by this Court in the perspective of the
Common Recruitment & Promotion Rules, in the
backdrop of the controversy involved in the
application before it.”
(P) In between, another O. A. No. 7397 of 2018
was filed before the Tribunal praying that persons
holding qualifications other than the one prescribed
be not considered for selection. On this application, an
Special Leave Petition (C) No. 730 of 2022 Page 13 of 57
order dated 21.12.2018 was passed requiring the
Commission to make selections against Post Code 556
strictly as per 2014 Rules.
(Q) The order of the Tribunal dated 21.12.2018
was challenged before the High Court in Writ Petition
No. 161 of 2019. Therein, on 11.01.2019, an interim
order was passed in the following terms:
“Meanwhile the operation of the impugned order
dated 21.12.2018 (Annexure P -7) passed by
Himachal Pradesh Administrative Tribunal in
O.A. No. 7397 of 2018 shall remain stayed.
However, the Staff Selection Commission shall
only allow the eligible candidates to participate in
the process.”
(R) In the light of various interim orders, after
carrying out the selection process, the Commission
declared result of Post Code 556 on 23.02.2019
thereby recommending 596 candidates only. While
doing so, candidature of several candidates, who were
found ineligible under the 2014 Rules, was rejected.
(S) The candidates who were rejected as
ineligible approached the Tribunal. On 26.02.2019,
the Tribunal, in O.A. No. 677 of 2019 (later registered
as Writ Petition No. 20 of 2019), directed status quo
with regard to appointments pursuant to the declared
result for Post Code 556.
(T) Aggrieved by the order of the Tribunal dated
26.02.2019, a group of selected candidates filed Writ
Petition No. 629 of 2019 before the High Court. On
29.08.2019, Writ Petition Nos. 161 of 2019 and 629 of
Special Leave Petition (C) No. 730 of 2022 Page 14 of 57
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
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,
Special Leave Petition (C) No. 730 of 2022 Page 15 of 57
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 General of
Employment & Training (Govt. of India) from time
to time or three years Diploma in Computer
Engineering /Computer Science/ IT from
Polytechnic as approved by All India Council for
Technical Education (AICTE).”
(X) Pursuant thereto, on 21.09.2020, a fresh
advertisement No. 36-2/2020 was issued by the
Commission inviting applications for the post of
Junior Office Assistant-JOA (IT) (Post Code 817).
(Y) On issuance of fresh advertisement, in Writ
Petition No. 2246 of 2019, following interim order was
passed:
“Pursuant to Advertisement No. 36-2/2020 dated
21.09.2020, issued by respondent-HPSSC for the
post of Junior Office Assistant-JOA (IT), the
respondent-Himachal Pradesh Staff Selection
Commission, Hamirpur is permitted to proceed
with the recruitment process, however, the final
result shall not be announced without permission
of this Court. Applications stand disposed of.”
Summary of the Litigation before the High Court
4. A conspectus of the narration above would indicate
that litigation emanated from three successive
advertisements issued by the Selection Board/
Special Leave Petition (C) No. 730 of 2022 Page 16 of 57
Commission inviting applications for the post of JOA (IT).
The first advertisement is dated 13.02.2015 for 1421 posts
(i.e., Post Code 447). The second is dated 18.10.2016 for
1156 posts (i.e., Post Code 556); and the third is dated
21.09.2020 for 1869 posts (i.e., Post Code 817).
5. Under the first advertisement for Post Code 447,
the advertised posts were filled with the aid of the order
dated 21.08.2017, which relaxed the advertised eligibility
conditions. The litigation therein was initiated by two sets
of candidates. One set comprised of those whose
candidature got rejected because they failed to meet the
eligibility criteria prescribed in the advertisement and the
2014 Rules. The other 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
Special Leave Petition (C) No. 730 of 2022 Page 17 of 57
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.
7. In respect of the third advertisement dated
21.09.2020, the challenge was confined to 531 posts that
were carried forward as unfilled vacancies notified under
the second advertisement for Post Code 556 . In this
category of cases, the claim was that vacant posts of JOA,
advertised as Post Code 556, should not have been left
unfilled as eligible candidates were available had the
benefit of the relaxation been provided. They, therefore,
claimed that those carry forward posts, now
advertised as Post Code 817, be segregated and filled
as part of the second advertisement by taking into
Special Leave Petition (C) No. 730 of 2022 Page 18 of 57
consideration those candidates who would be eligible by
virtue of the relaxation.
Findings / Observations of the High Court in the
impugned judgment
8. The High Court found / held / observed:
(i) The essential qualifications prescribed in the
2014 Rules as “one year diploma in Computer Science
/ Computer Application / Information Technology
from a recognized University / Institution” is
ambiguous and creates confusion, firstly, because
expression “recognized University / Institution” is not
defined, and, secondly, diploma qualification may be
held under different nomenclatures. The High Court
held that though there could be no dispute regarding
a recognized University but as regards the authority
competent to recognize an institution to award a
diploma, there is no clarity. Therefore, the decision to
relax the essential qualifications dated 21.08.2017
was within the powers of the State Government
conferred by Rule 18 of the 2014 Rules. Hence, it was
rightly applied on the recruitment exercise carried out
under the first advertisement dated 13.02.2015.
(ii) Computer Science / Information Technology
are subjects of wide amplitude and are admissible to
differing nomenclatures and cannot 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
Special Leave Petition (C) No. 730 of 2022 Page 19 of 57
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,
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.
Special Leave Petition (C) No. 730 of 2022 Page 20 of 57
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
Code 447. Consequent to the dismissal of Writ Petition No.
34 of 2019, other writ petitions, namely, numbered 2253,
2289, 2290, 2388, 2394 and 7681 of 2020, which were
filed for consideration of candidates who benefited from
the relaxation order, were dismissed as infructuous.
10. Writ petitions seeking relaxation in the eligibility
conditions for the second advertisement (i.e., for Post Code
556) in terms provided for Post Code 447, were disposed
of by directing that same relaxation be accorded for Post
Code 556 as accorded for Post Code 447. In consequence,
the High Court, in paragraphs 33 and 34 of the impugned
judgment, directed:
“33. Thus, the HPSSC is directed to re-cast the
merit list for JOA 556 by including all categories
of candidate as was done for JOA 447 on the
basis of decision of Government dated
21.8.2017/ 18.9.2017 and further made
applicable to JOA 556 vide communication
19.3.2018 except the candidates with higher
qualification, who have already been held
ineligible vide judgment dated 29.8.2019 of a
Division Bench of this Court in CWP 161/2019.
These selections for JOA 556 shall be made by
taking into account the entire number of vacancies
advertised for JOA 556 and the decision of the
Government/HPSSC to close the selection
procedure for JOA 556 is set aside and quashed.
Special Leave Petition (C) No. 730 of 2022 Page 21 of 57
34. Since the Common R&P Rules stand amended
by 2020 Rules and the cause of persistent
confusion for the time being appears to have been
removed, as a necessary consequence selection
for JOA 817 shall take place in accordance with
2020 Rules, however, the selection process shall
not include the selection for posts which were left
over from advertised posts of JOA 556 as the said
posts have already been directed to be filled
through selection process 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:
Special Leave Petition (C) No. 730 of 2022 Page 22 of 57
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 / impleadment
application(s) (i.e., I.A. Nos. 30862 of 2022; 26627 of 2022;
and 73507 of 2022) have been filed by such candidates
who were to benefit by the direction given in paragraph 33
of the impugned judgment.
Another I.A. No 14524 of 2022 has been filed for
impleading parties who had put in appearance through
various intervention applications. Yet another I.A. No.
5062 of 2022 has been filed to bring on record:
(a) a copy of letter issued by the Director of
Higher Education, Govt. of Himachal Pradesh;
(b) copy of the order of the High Court dated
29.08.2019 passed in Writ Petition Nos. 629 of 2019
and 161 of 2019; and
Special Leave Petition (C) No. 730 of 2022 Page 23 of 57
(c) copy of the order dated 15.11.2021 passed by
this Court in SLP (C) No. 45 of 2021 whereby Special
Leave Petition preferred against the order of the High
Court dated 29.08.2019 was dismissed.
(B) Arising out of SLP (C) No. 729 of 2022:
This appeal is also at the instance of those
candidates who were considered and selected under the
second advertisement for Post Code 556 . They are,
therefore, similarly aggrieved as the appellants of appeal
arising out of SLP (C) No. 730 of 2022.
In this appeal, too, an Impleadment Application No.
15047 of 2022 has been filed to bring on record parties
who had put in appearance through various intervention
applications.
(C) Arising out of SLP (C) No. 4321 of 2022:
This appeal is by the writ petitioners of Writ Petition
No. 34 of 2019 before the High Court. They are aggrieved
by dismissal of their writ petition which sought:
(a) quashing of the relaxation order dated 21.08.2017;
and
(b) a direction upon HPSSC to prepare the merit-list
by including only those candidates who possess
essential minimum qualifications as specified in
advertisement No. 30 of 2015 dated 13.02.2015.
Appellants herein are those candidates who failed to
find their name in the select list prepared after the
Special Leave Petition (C) No. 730 of 2022 Page 24 of 57
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 29
th 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 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
Special Leave Petition (C) No. 730 of 2022 Page 25 of 57
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
candidates under the advertisement for Post Code 556 to
initiate contempt proceeding against the State for non-
compliance of the directions contained in the impugned
judgment of the High Court.
(E) Arising out of SLP (C) No. 17676 of 2022:
This appeal is by those who have applied under the
third advertisement dated 21.09.2020 qua Code 817. Their
grievance is that if the direction given in paragraphs 33
and 34 of impugned judgment is implemented, the
number of posts advertised would get reduced thereby
affecting their chances of selection.
Interim Orders passed during pendency of the
proceedings:
13. In Special Leave Petition (C) No. 730 of 2022, on
12.01.2022, an interim order was passed putting in
abeyance the direction contained in paragraph 33 of the
impugned judgment. Likewise, in SLP (C) No. 17676 of
Special Leave Petition (C) No. 730 of 2022 Page 26 of 57
2022, an interim order was passed on 30.09.2022 putting
in abeyance the direction contained in paragraph 34 of the
impugned judgment.
14. We have heard learned counsel for the appellants;
the learned counsel for the respondents / Intervenors and
the Advocate General of the State of Himachal Pradesh,
who appeared for the State and the Commission.
Submissions on behalf of Appellants
15. Ms. Kaveeta Wadia, who led the arguments on
behalf of the appellants in appeals arising out of SLP (C)
Nos. 730 of 2022, 729 of 2022 and 9977 of 2022, inter alia,
submitted:
(i) The first and second advertisements (i.e.,
dated 13.02.2015 and 18.10.2016) were issued during
currency of the 2014 Rules. The 2014 Rules
prescribed eligibility qualifications in unequivocal
terms and the advertisements specified the same
qualifications with a clear stipulation that candidates
applying thereunder must hold the requisite
qualifications 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
Special Leave Petition (C) No. 730 of 2022 Page 27 of 57
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
11 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;
11
1986 Act
Special Leave Petition (C) No. 730 of 2022 Page 28 of 57
(j) “institution” means institution imparting
technical education and industrial training
………..;
(s) “technical education” means the education
imparted to students in the technical institutions;”
Section 12 of the 1986 Act specifies functions and
duties of the Board as follows:
“12. Functions and duties of the Board. -
Subject to the provisions of this Act and the rules
and regulations made thereunder, the functions
and duties of the Board shall be-
(i) to affiliate institutions and prescribe
courses of study and instructions leading to
examinations conducted by it;
(ii) to prescribe standards for buildings and
equipment of affiliated institutions;
(iii) to prescribe educational qualifications and
other standards for the members of the staff of the
affiliated institutions;
(iv) to prescribe educational qualifications for
admission of students to affiliated institutions;
(v) to prescribe the manner of admission of
students to affiliated institutions;
(vi) to admit candidates to examinations
conducted by it;
(vii) to conduct examinations for promotion from
lower to higher classes and also for awarding
certificates and diplomas;
(viii) to publish results of examinations
conducted by it;
(ix) to grant certificates and diplomas to
students who have completed the prescribed
course of study in an affiliated institution and
have passed the examinations conducted by it;
(x) to co-operate with other authorities and bodies
in such manner and for such purposes as may be
necessary for giving effect to the provisions of this
Act;
(xi) to advise the State Government on co -
ordinated development of technical education and
training regarding the same;
(xii) to do all other such acts and things as may
be necessary for the proper discharge of its
functions under this Act or the rules or regulations
made thereunder; and
Special Leave Petition (C) No. 730 of 2022 Page 29 of 57
(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
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;
Special Leave Petition (C) No. 730 of 2022 Page 30 of 57
(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 the examination;
(iv) to prescribe fees for the examinations
conducted by it and provide for the
manner of their realisation;
(v) to refuse affiliation of an institution-
(a) which does not fulfil, or is not in
a position to fulfil or does not come
up to the standards for staff,
instruction, equipment or buildings
laid down by the Board in this
behalf, or
(b) which does not or is not willing
to abide by the conditions of
affiliation laid down by the Board
in this behalf;
(vi) after giving the institution concerned a
reasonable opportunity of being heard, to
withdraw affiliation of an institution not able
to adhere to or make a provision for
standards of staff, instruction equipment or
buildings laid down by the Board, or on its
failure to observe the conditions of affiliation
to the satisfaction of the Board;
(vii) to call for reports from the heads of
affiliated institutions in respect of any act
done in contravention of the rules or
regulations or decisions, instructions or
directions of the Board, and take suitable
action for the enforcement of the rules or
regulations or decisions, instructions or
directions of the Board, in such manner as
may be prescribed by the regulations;
(viii) to inspect an affiliated institution for the
purpose of ensuring due observance of the
prescribed courses of study and to ensure
that facilities for instructions are duly
provided and availed of; and
Special Leave Petition (C) No. 730 of 2022 Page 31 of 57
(ix) to fix the maximum number of students
that may be admitted to courses of study in
an affiliated institution.
(3) The decision of the Board in all matters
mentioned in sub-sections (1) and (2) shall 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 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,
Special Leave Petition (C) No. 730 of 2022 Page 32 of 57
tabulators, centre inspectors,
superintendents of centr es 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 with a view to ensuring
due observance of the prescribed
courses of study and that facilities for
instruction are duly provided and
availed of;
(n) the conditions under which a
candidate may be disallowed
admission to the examination of the
Board in courses of study in an
affiliated institution;
(o) withholding or cancelling results of
an examination conducted by the
Board and cancelling an examination
conducted by it in respect of any
candidate;
(p) the circumstances under which
affiliation of an institution may be
withdrawn or refused;
(q) inspection of a centre; and (r) any
other matter which under this Act or
rules made thereunder is to be or may
be prescribed by regulations.”
Section 31 of the Act provides that first Regulations
shall be made by the State. It provides:
“31. First regulations of the Board.-
(1) The First Regulations shall be made by the
State Government and they shall be deemed to
Special Leave Petition (C) No. 730 of 2022 Page 33 of 57
have been made by the Board and continue in
force until altered or modified by the Board.
(2) The regulations made under sub-section (1)
shall not take effect until these have been
published in the Official Gazette”
In exercise of its statutory powers, the Takniki
Board framed and notified Himachal Takniki Shiksha
Board, Regulations 1993
12 under Section 15 read with
Section 31 of the 1986 Act. Regulation 6(5) of the 1993
Regulations provided for conferment of Certificates
and Diplomas while Regulation 7 prescribed the
conditions for affiliation of the Institution. Further,
Regulation 6 (5) provided that:
“All diplomas and 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
13
which established a Regulatory Commission and
12
1993 Regulations
13
2010 Act
Special Leave Petition (C) No. 730 of 2022 Page 34 of 57
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 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 vs. State (NCT of Delhi) & Ors
14
. 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
14
(2013) 11 SCC 58
Special Leave Petition (C) No. 730 of 2022 Page 35 of 57
law laid down by this Court in Bedanga Talukdar
vs. Saifudaullah Khan
15
and Sanjay K. Dixit v.
State of U.P.
16
(vii) Further, a candidate by self-declaration
cannot certify his own qualification as equivalent
to the one specified. There have to be norms and
guidelines for declaring a qualification equivalent
to meet the eligibility criteria prescribed by the
Rules for the post. However, the Committee
approved the candidature / selection of
candidates on the basis of self-certification which
is impermissible in light of this Court’s decision in
Mukul Kumar Tyagi vs. State of U.P.
17
(viii) As relaxation of eligibility criteria was
illegal, extension of the same relaxation for Post
Code 556 is also illegal. Otherwise also, executive
instructions cannot override statutory rules
framed under Article 309 of the Constitution of
India. In this regard, reliance was placed on
decisions of this Court in Krishna Rai v. Banaras
Hindu University
18
; Union of India vs
Somasundaram Viswanath & Ors.
19
; and P.D.
Aggarwal & Ors. vs. State of U.P. & Ors.
20 .
15
(2011) 12 SCC 85
16
(2019) 17 SCC 373
17
(2020) 4 SCC 86
18
(2022) 8 SCC 713
19
(1989) 1 SCC 175
20
(1987) 3 SCC 622
Special Leave Petition (C) No. 730 of 2022 Page 36 of 57
16. Ms. Vandana Sehgal, who appeared on behalf of
appellants in the appeal arising out of SLP (C) No.17676 of
2022, submitted that the third advertisement for Post
Code 817 was published on 21.09.2020 . By that time
Himachal Pradesh, Department of Personnel, Junior Office
Assistant (Information Technology), Class III (Non -
Gazetted) Ministerial Services, Common Recruitment and
Promotion Rules, 2020
21 were already notified. Thus,
recruitment had to be 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:
21
the 2020 Rules
Special Leave Petition (C) No. 730 of 2022 Page 37 of 57
(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 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 vs. State
of Uttaranchal
22
;
(vii) Rule 18 conferred power on the State to relax
the Rules. Consultation with Public Service
Commission was not required because under the
proviso to Article 320 (3) of the Constitution, “The
22
(2008) 4 SCC 171
Special Leave Petition (C) No. 730 of 2022 Page 38 of 57
Himachal Pradesh Public Service Commission
(Exemption from Consultation) Regulations, 1973”
were framed and, as per Regulation 3 thereof, there is
exemption from consultation in respect of services and
posts specified in the Schedule. Class III posts, other
than those specified, are exempt from consultation.
Thus, relaxation without consultation with the
Commission was legally permissible. In this regard,
reliance was placed on a decision of this Court in the
case of State of Gujarat vs. Arvindkumar T.
Tiwari
23..
18. On behalf of the State of Himachal Pradesh, H.P.
Staff Selection Commission and the Govt. of Himachal
Pradesh, Mr. Anup Kumar Rattan, Advocate General,
assisted by Abhinav Mukerji, submitted:
(i) Under the first advertisement for Post Code
447 there were 1421 vacancies. In respect of second
advertisement for Post Code 556 there were 1156
vacancies. Both advertisements were, inter alia, for the
post(s) of JOA, Class-III (Non-Gazetted) Ministerial
Service, and were to be filled as per the 2014 Rules. A
large number of candidates applied under any one of
the following categories:
(a) Those who held qualification higher than the
one prescribed;
23
(2012) 9 SCC 545
Special Leave Petition (C) No. 730 of 2022 Page 39 of 57
(b) Those who held qualifications from institute(s)
regarding which there was ambiguity as to how
they could be treated as recognised;
(c) Those who held qualifications equivalent to the
prescribed qualifications; and
(d) Those who held prescribed qualifications 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
Special Leave Petition (C) No. 730 of 2022 Page 40 of 57
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 Court
in Maharashtra Public Service Commission vs.
Sandeep Sudhakarrao Lavhekar
24
.
(vi) The State can even withdraw an
advertisement and proceed afresh under new set of
Rules. In this regard, reliance was placed on a decision
24
(2019) 6 SCC 362
Special Leave Petition (C) No. 730 of 2022 Page 41 of 57
of this Court in State of M.P. vs. Raghuveer Singh
Yadav
25
(vii) Recruitment under Post Code 447 is
complete. If the appointments are set aside, it would
create administrative chaos. In the recruitment
process under Post Code 556, out of 1156 posts that
were advertised, 626 posts have been filled and 530
posts remain unfilled.
19. On behalf of Intervenors (I.A. No.100627 of 2022),
who claim to possess qualifications higher than prescribed
by the Rules, Mr. Tarun Gupta argued that they possess
qualifications which can be considered higher than the
prescribed qualifications and, therefore, they ought to
have been considered as eligible even though qua them no
specific clarification was issued. Further, if persons having
diploma from private / unrecognised institutes were
considered eligible, there could be no dispute regarding
eligibility of those who possess higher qualification. The
learned counsel sought to distinguish the decision of this
Court in Zahoor Ahmad Rather & Ors. vs. Sheikh
Imtiyaz Ahmad & Ors.
26 relied by the High Court to reject
their claim.
20. Mr. Dinesh Singh, who appeared for one of the
selected candidates for Post Code 447, submitted that
there exists no authority to recognise a private institute in
the State. Considering this, the State Government
25
(1994) 6 SCC 151
26
(2019) 2 SCC 404
Special Leave Petition (C) No. 730 of 2022 Page 42 of 57
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 t wo
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 clarificatory
letter, as the case may be, was issued, the last date for
Special Leave Petition (C) No. 730 of 2022 Page 43 of 57
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 Commission, the relaxation / clarificatory
order could be considered in conformity with the
provisions of Rule 18 of the 2014 Rules?
(v) 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?
Special Leave Petition (C) No. 730 of 2022 Page 44 of 57
(vi) Whether candidates holding qualifications
other than the one prescribed by the 2014 Rules or
the advertisement, though allegedly higher, could be
considered eligible?
(vii) Whether the State (i.e., the employer) could
be forced to fill all vacancies advertised; and whether
it could be restrained from carrying it forward for
filling it as per the amended / new Rules.
Issue No.(i)
24. 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 [See: Rakesh Kumar Sharma (supra)].
25. In Bedanga Talukdar (supra), this Court observed:
“29. …………… In our opinion, it is too well settled
to need any further reiteration that all
appointments to public office have to be made in
conformity with Article 14 of the Constitution of
India. In other words, there must be no
arbitrariness resulting from any undue favour
being shown to any candidate. Therefore, the
selection process 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,
Special Leave Petition (C) No. 730 of 2022 Page 45 of 57
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 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 perm issible 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 when this power is exercised,
there must be wide publicity of its exercise so that persons
who are likely to benefit by exercise of such power may get
opportunity to apply and compete.
27. In the instant case, it is not shown that the
advertisement reserved the power to relax the essential
Special Leave Petition (C) No. 730 of 2022 Page 46 of 57
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 advertisement was
extended to enable persons benefited by such relaxation
to apply and compete. In these circumstances, in our view,
the power to relax the eligibility criteria, even if it existed,
was not exercised in consonance with the settled legal
principles and it violated the constitutional mandate
enshrined in Articles 14 and 16 of the Constitution. Issue
No.(i) is decided in the terms above.
Issue Nos.(ii), (iii) and (iv):
28. As issue nos. (ii), (iii) and (iv) are interrelated we
propose to deal with them simultaneously. First, we shall
consider whether there is any ambiguity in the essential
eligibility qualifications specified in the 2014 Rules.
29. As per Rule 7 of the 2014 Rules, “one year diploma
in Computer Science / Computer Application /
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
Special Leave Petition (C) No. 730 of 2022 Page 47 of 57
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 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
Special Leave Petition (C) No. 730 of 2022 Page 48 of 57
considered recognized dehors that procedure. No doubt,
as held by a Constitution Bench of this Court in
Mohammad Shujat Ali & Ors. vs. Union of India &
Ors.
27
, 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 decision unless it is based on extraneous
or irrelevant considerations or actuated by mala fides or is
irrational and perverse or manifestly wrong. But this is not
a case of mere treating degrees or certificates obtained
from a recognized Institution / University as equivalent to
the one specified, rather it is of granting recognition to
certain courses conducted by private institutes, whether
recognized or not as per the extant statutory regime. This,
in our view, amounts to changing the eligibility criteria
midway because the extant Rules and the advertisement
both stipulated that the diploma / specified course had to
be from a recognized Institution / University. Even
assuming that there had been no statutory procedure
prescribed to accord recognition, such relaxation in the
eligibility qualification ought to have been widely
publicized, and opportunity should have been afforded to
those who were left out, so that they could apply and
compete, as held by this Court in Bank of India vs. Aarya
K. Babu
28
.
27
(1975) 3 SCC 76
28
(2019) 8 SCC 587
Special Leave Petition (C) No. 730 of 2022 Page 49 of 57
32. In Aarya K. Babu (supra), one of the issues was,
whether a particular educational qualification made
eligible after issue of recruitment notification could have
been considered for the purposes of recruitment.
Answering the question, this Court held that if there is any
change in the qualification criteria after the notification is
issued but before the completion of the selection process,
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.
Special Leave Petition (C) No. 730 of 2022 Page 50 of 57
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 words per
minute in English or 25 words per minute in Hindi
OR
(i) 10 +2 from a recognised Board of School
Education/ University.
(ii) “O” or “A” level Diploma from National
Institute of Electronics & Information Technology
(NIELET)
(iii) Computer typing speed of 30 words per
minute in English or 25 words per minute in
Hindi”
Special Leave Petition (C) No. 730 of 2022 Page 51 of 57
37. Neither the 2014 Rules nor the advertisement
recognises any other, or higher qualification, meeting the
eligibility criteria specified therein. In a somewhat similar
situation, in Zahoor Ahmad Rather (supra), this Court
held:
“26. ………….. Absent such a rule, it would not be
permissible to draw an inference that a higher
qualification necessarily presupposes the
acquisition of another, albeit lower, qualification.
The prescription of qualifications for a post is a
matter of recruitment policy. The State as the
employer is entitled to prescribe the qualifications
as a condition of eligibility. It is no part of the role
or function of judicial review to expand upon the
ambit of the prescribed qualifications. Similarly,
equivalence of a qualification is not a matter
which can be determined in exercise of the power
of judicial review. Whether a particular
qualification should or should not be regarded as
equivalent is a matter for the State, as the
recruiting authority, to determine. 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 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
Special Leave Petition (C) No. 730 of 2022 Page 52 of 57
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 situation, withdraw an
advertisement and issue a fresh advertisement in
conformity with the new or amended Rules [See: State of
M.P. vs. Raghuveer Singh Yadav (supra)]. Even a
candidate included in the merit list has no indefeasible
right to appointment even if the vacancy exists (See:
Special Leave Petition (C) No. 730 of 2022 Page 53 of 57
Shankarsan Dash vs. Union of India
29
). Issue No.(vii) is
decided accordingly.
Conclusion / Directions:
40. For all the reasons above, 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. Though the directions
contained therein were stayed by this Court, yet, as a
matter of abundant caution, we direct that
appointment(s), if any, made by taking aid of those
directions, would stand set aside by this order.
41. As regards those candidates who were appointed
under the first advertisement qua Post Code 447 not
pursuant to the impugned judgment , but by the State
itself, based on the relaxation accorded vide order dated
21.08.2017, the contention of the appellants in the appeal
arising out of SLP (C) No.4321 of 2022 is, that 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,
29
(1991) 3 SCC 47
Special Leave Petition (C) No. 730 of 2022 Page 54 of 57
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, 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.
Special Leave Petition (C) No. 730 of 2022 Page 55 of 57
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.
It is, therefore, prayed by the respondents that their
appointment(s) should not be disturbed in exercise of
discretionary powers of this Court.
44. Upon consideration of the rival submissions and
having regard to: (a) that appointments were made after
taking written and computer typing test of the candidates;
(b) that there is no specific allegation of nepotism or mala
fides in making such appointments; (c) that nature of the
post does not require a high degree of technical skill; (d)
the length of period during which the appointments have
continued; and (e) that there is no clarity whether such
appointees were duly served with notice of the proceeding
before the High Court, or whether a specific challenge was
laid to their eligibility individually, we are of the considered
view that even if such appointments were made taking aid
of the relaxation order dated 21.08.2017, it would not be
in the interest of justice to disturb those appointments
made under the first advertisement (Post Code 447). As
regards adjustment of the appellants (i.e., petitioners in
SLP (C) No. 4321 of 2022) against vacancies that might
have arisen subsequent to appointment against the
Special Leave Petition (C) No. 730 of 2022 Page 56 of 57
advertised vacancies is concerned, in our view, it would
not be appropriate as those vacancies would have to be
filled after a fresh advertisement and in accordance with
the extant Rules.
45. In light of the aforesaid 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
Special Leave Petition (C) No. 730 of 2022 Page 57 of 57
advertisement for Post Code 556 shall not be re-drawn
by including such candidates who, though not eligible,
became eligible pursuant to relaxation / clarificatory
order dated 21.08.2017 / 18.09.2017 read with com-
munication dated 19.03.2018; and (b) there shall be
no segregation of seats advertised under the third ad-
vertisement dated 21.09.2020 for Post Code 817 .
Thus, recruitment for Post Code 817 shall be strictly
in accordance with the extant Rules (i.e., 2020 Rules),
as notified.
(iii) The appointments already made under the
first advertisement (for Post Code 447) shall not be
disturbed merely because some of the appointees may
have gained eligibility based on the order of relaxation
/ clarification dated 21.08.2017, which was approved
by the State cabinet.
46. All the appeals are disposed of in the aforesaid
terms. Pending application(s), if any, are also disposed of.
There is no order as to costs.
......................................J.
(HRISHIKESH ROY)
......................................J.
(MANOJ MISRA)
New Delhi;
November 9, 2023
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