Point of Law: Employment and Service matter - Order of dismissal of writ petition - None of candidates, including the appellant and respondent No. 3 was qualified, therefore, they also have no right to be considered for appointment, despite their names falling in the waiting list.

JUDGMENT :

Tarlok Singh Chauhan, Judge

The petitioner is appellant, who, aggrieved by the order of dismissal of his writ petition, has filed the instant appeal.

2. The facts, as necessary for disposal of the appeal, are that respondent No. 1, i.e. Himachal Pradesh Board of School Education, Dharamshala, vide notification/advertisement dated 21.07.2016 invited online applications from bonafide residents of Himachal Pradesh, for the post of Computer Hardware Engineer on adhoc basis, for a period of six months on contract w.e.f. 22.07.2016.

3. The candidates, who had applied for the written test, were shortlisted and thereafter only six candidates were called to appear in the interview. Respondent No. 2 came to be selected and aggrieved by her selection, the petitioner had filed OA No. 1561 of 2017 before the erstwhile Tribunal and on closure thereof, the petition was transferred to this Court and registered as CWPOA No. 136 of 2019, and was eventually dismissed vide impugned judgment.

4. It is vehemently argued by Mr. K.S. Banyal, learned Senior Advocate, assisted by Mr. Vijender Katoch and Mr. Kunal Verma, Advocates, that the judgment passed by the learned writ Court is contrary to law, inasmuch as, an entirely new case, that was not even set up by the petitioner or official respondent, has been carved out in favour of the private respondent, resulting in dismissal of the petition.

5. We have heard the learned counsel for the parties and have also gone through the material placed on record.

6. The essential qualification for the post in question is as under:

“Essential qualification

(1) Should have passed 10+2 examination or its equivalent from a recognized Board/University.

(2) B.E./B.Tech in Electronic from & telecommunication/I.T. a recognized University with at least 5 years experience in Computer Manufacturing/Maintenance Company or repute.

(3) Preference will be given to candidate with M. Tech in Electronic Degree.

Desirable qualification

Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.”

7. Record reveals that the petitioner and respondent No. 2 possessed B. Tech in Electronic and M. Tech in Electronic, respectively from the recognized University, but it was respondent No. 2, who came to be selected.

8. The case set up by the petitioner was that since respondent No. 2 did not possess the requisite qualification, she could not have been given preference over him being M. Tech in Electronic/I.T., especially when she has no experience in Computer Manufacturing/Maintenance from the company of repute.

9. The learned writ Court on the basis of pleadings of the parties, formulated the following questions:

“(i) Whether respondent No. 2 being M. Tech in Electronic/I.T. could have been given preference over the petitioner despite her having no experience in Computer Manufacturing/Maintenance from the company of repute.

(ii) Whether respondent/department had any power to relax the condition of experience while selecting respondent No. 2 against the post in question.”

10. The learned writ Court proceeded to dismiss the writ petition on the premise that respondent No. 2 had been selected on the basis of relaxation given by the Recruiting Agency, for which it was duly empowered under the Rules.

11. However, in our considered opinion, reasoning accorded by the learned writ Court is not well-founded and, therefore, not sustainable, reason being, that it was never the case of the employer that Recruiting Agency had accorded relaxation and thereafter on the basis of relaxation, selected respondent No. 2.

12. Even as per respondent No. 2, none of the candidates, who were called for interview, fulfilled the requirement of requisite experience as per the Rules, which is so admitted in the reply filed to the writ petition, more particularly, in para 7. Relevant portion whereof reads as under:

“7. As a matter of fact, the record would reveal that none of the candidat