Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 1121

SUPREME COURT OF INDIA
HRISHIKESH ROY, MANOJ MISRA, JJ.
Ankita Thakur & Ors. - Appellants
Versus
The H.P. Staff Selection Commission & Ors. – Respondents
Civil Appeal No. 7602 of 2023 (@ SLP (C) no. 730/2022) 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)
Decided on : 09-11-2023

Advocates appeared:
For the Petitioner(s): Ms. Vandana Sehgal, AOR Ms. Kaveeta Wadia, Adv. Ms. Astha Sharma, AOR Mr. Srisatya Mohanty, Adv. Ms. Anju Thomas, Adv. Mr. Sanjeev Kaushik, Adv. Ms. Mantika Haryani, Adv. Mr. Shreyas Awasthi, Adv. Mr. Himanshu Chakravarty, Adv. Ms. Ripul Swati Kumari, Adv. Mr. Bhanu Mishra, Adv. Ms. Muskan Surana, Adv. Ms. Anvita Dwivedi, Adv. Ms. Lihzu Shiney Konyak, Adv. Ms. Kaveeta Wadia, Adv. Ms. Nidhi Mohan Parashar, AOR Mr. Vikrant Kumar, Adv.
For the Respondent(s): Mr. Abhinav Mukerji, AOR Mr. Vinod Sharma, AOR Mr. Vivek Narayan Sharma, AOR Ms. Laksha Bhavnani, Adv. Mrs. Mahima Bharadwaj Kalucha, Adv. Mr. Rajeev Kumar Jha, Adv. Mr. Sudhanshu Khandelwal, Adv. Mr. Pranshu Kaushal, Adv. Mr. Shubham Singh, Adv. Mr. Dinesh Sharma, Adv. Mr. Rameshwar Prasad Goyal, AOR Mr. Tarun Gupta, AOR Mr. Raj Sudhakar Yadav, Adv. Mr. Atul Kumar, Adv. Mr. Abhishek Sharma, Adv. Mr. Manoj Rajpoot, Adv. Mr. Vikrant, Adv. Ms. Rajani Ohri Lal, AOR Mr. Yaduinder Lal, Adv.

IMPORTANT POINTS
(1) Appointment – Eligibility criteria/conditions, unless provided otherwise in extant rules or advertisement, must be fulfilled by candidate by last date for receipt of applications specified in advertisement.
(2) Appointment – Eligibility criteria – If there existed a statutory procedure for granting recognition, an Institution cannot be considered recognized de hors that procedure.

Headnote:
(A) Service Law – Appointment – Eligibility criteria/conditions, unless provided otherwise in extant rules or advertisement, must be fulfilled by candidate by last date for receipt of applications specified in advertisement – If extant Rules provide for power to relax eligibility criteria, same could be exercised only if such power is reserved in advertisement – 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 – In instant case, it is not shown that advertisement reserved power to relax essential eligibility qualifications specified in advertisement at any later stage – Rather, advertisement is specific that eligibility criteria must be fulfilled by an aspiring candidate by last date fixed for receipt of application – Power to relax eligibility criteria, even if it existed, was not exercised in consonance with settled legal principles and it violated constitutional mandate enshrined in Articles 14 and 16 of Constitution. [Himachal Pradesh Takniki Shiksha Board Act, 1986 – Sections 12, 15 and 31] (Paras 24, 26 and 27)
(B) Service Law – Appointment – Eligibility criteria – If there existed a statutory procedure for granting recognition, an Institution cannot be considered recognized de hors that procedure – Issue of equivalence is a technical issue and where decision of Government is based on recommendation of an expert body, 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 – Granting recognition to certain courses conducted by private institutes, whether recognized or not as per extant statutory regime, amounts to changing eligibility criteria midway – Even if State had power to relax eligibility criteria, same could not have been done mid-stream without giving wide publicity of such change. (Paras 31 and 33)
Facts of the case:
All these appeals are directed against a common judgment and order [Order dated 31.12.2021] of High Court [High Court of Himachal Pradesh] disposing of a batch of writ petitions as well as intra-court appeals concerning recruitment on the post of Junior Office Assistant [JOA], a Class III (Non-gazetted) post, under Government of Himachal Pradesh [Govt.]. There being a commonality of law and facts concerning these appeals, they are being decided by a common judgment.
Findings of Court:
(i) Relaxation/clarificatory order dated 21.08.2017, as approved by State cabinet on 18.09.2017, being after last date fixed by 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 terms of advertisement, had applied thereunder;
(ii) Direction(s) contained in Paragraphs 33 and 34 of impugned judgment of High Court setting aside closure of selection process for Post Code 556 and to re-cast merit list as well as fill up remaining posts of Post Code 556, with 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) merit list prepared under the second 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 communication dated 19.03.2018; and (b) there shall be no segregation of seats advertised under third advertisement dated 21.09.2020 for Post Code 817. Recruitment for Post Code 817 shall be strictly in accordance with extant Rules (i.e., 2020 Rules), as notified.
(iii) Appointments already made under first advertisement (for Post Code 447) shall not be disturbed merely because some of appointees may have gained eligibility based on order of relaxation/clarification dated 21.08.2017, which was approved by State cabinet.
Result : Appeals disposed of with observations.

JUDGMENT :

MANOJ MISRA, J.

1. Leave granted.

2. All these appeals are directed against a common judgment and order¹[Order dated 31.12.2021] of the High Court²[High Court of Himachal Pradesh] disposing of a batch of writ petitions as well as intra-court appeals concerning recruitment on the post of Junior Office Assistant³[JOA], a Class III (Non-gazetted) post, under the Government of Himachal Pradesh⁴[Govt.]. There being a commonality of law and facts concerning these appeals, they are being decided by a common judgment.

Factual Matrix

3. As these appeals arise from multiple proceedings, a disclosure of relevant facts in a chronological order would be apposite. These facts are set out below:

(A) On 24.12.2014, Himachal Pradesh, Department of Personnel, Junior Office Assistant (Information Technology), Class-III, (Non-Gazetted), Ministerial Services, Common Recruitment and Promotion Rules, 2014⁵[2014 Rules], framed under the proviso to Article 309 of the Constitution of India⁶[Constitution], were notified with a view to have common recruitment and promotion rules for the post of JOA in various departments of the Government. Relevant provisions of the 2014 Rules are detailed below:

(1) Rule 7 prescribed qualifications for the post of JOA as follows:

“(a) Essential Qualification:

(i) 10 + 2 from a recognized Board of School Education/University,

(ii) One year diploma in Computer Science/Computer Application/Information

Technology from a recognized University/Institution and

(iii) Computer typing speed of 30 words 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 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[Selection Board] 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 da