Supreme Court of India
ANKITA THAKUR & ORS.versusTHE H.P. STAFF SELECTION COMMISSION & ORS.
- Citation
- 2023 INSC 992
- Decided
- 9 November 2023
- Disposal
- Disposed off
- Bench
- HRISHIKESH ROY
Holding
Relaxation of essential eligibility criteria after the application deadline, without reservation of such power in the advertisement and without adequate publicity, is illegal and violative of Articles 14 and 16 of the Constitution.
Summary
The Supreme Court examined the recruitment of Junior Office Assistants (IT) in Himachal Pradesh where the State had, after the application deadline, issued a relaxation order allowing candidates with diplomas from private institutions to be considered eligible. The petitioners argued that the relaxation was illegal because the advertisement did not reserve power to relax essential qualifications, the relaxation was not widely publicised, and it ignored the statutory regime for recognizing institutions under the Himachal Pradesh Takniki Shiksha Board Act, 1986. The Court held that any relaxation of essential eligibility must be expressly reserved in the advertisement and must be publicised, and that the post‑deadline relaxation violated Articles 14 and 16 of the Constitution. Consequently, the Court set aside the High Court’s directions to re‑cast the merit list for Post Code 556 and to segregate vacancies for Post Code 817, while leaving undisturbed appointments already made under the first advertisement. All appeals were disposed of accordingly.
Issues considered
- Whether relaxation in the essential eligibility qualifications could be made after the last date fixed for receipt of applications.
- Whether the essential eligibility qualifications specified in the 2014 Rules were ambiguous and warranted clarification or relaxation.
- Whether a statutory regime existed for recognizing institutions and, if so, whether the relaxation order ignored that regime.
- Whether the relaxation order, issued without prior consultation with the Himachal Pradesh Public Service Commission, complied with Rule 18 of the 2014 Rules.
- Whether the one‑year diploma requirement was an essential qualification for the post.
- Whether candidates holding qualifications other than those prescribed could be considered eligible.
- Whether the employer could be compelled to fill all advertised vacancies and be restrained from using amended rules.
Legislation cited
- Constitution of Indias. Article 14, s. Article 16, s. Article 309, s. Article 320(3)
- Himachal Pradesh Department of Personnel, Junior Office Assistant (Information Technology) Class‑III Common Recruitment and Promotion Rules, 2014s. Rule 15, s. Rule 18, s. Rule 7
- Himachal Pradesh Private Educational Institutions (Regulatory Commission) Act, 2010
- Himachal Pradesh Public Service Commission (Exemption from Consultation) Regulations, 1973s. Regulation 3
- Himachal Pradesh Takniki Shiksha Board Act, 1986s. Section 12, s. Section 13, s. Section 15, s. Section 2, s. Section 31
- Himachal Pradesh Takniki Shiksha Board Regulations, 1993s. Regulation 6(5), s. Regulation 7
Subjects
recruitmenteligibility criteriarelaxation of rulespublic serviceconstitutional lawArticle 14Article 16Rule 18recognition of institutionsstatutory interpretationadministrative law
Judgment
[2023] 16 S.C.R. 813 : 2023 INSC 992
CASE DETAILS
ANKITA THAKUR & ORS.
v.
THE H.P. STAFF SELECTION COMMISSION & ORS.
(Civil Appeal No. 7602 of 2023)
NOVEMBER 09, 2023
[HRISHIKESH ROY AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: (i) Whether relaxation in the essential
eligibility qualifications could be made post the last date fixed for receipt
of applications; (ii) Essential eligibility qualifications specified in the
Himachal Pradesh, Department of Personnel, Junior Office Assistant
(Information Technology), Class-III, (Non-Gazetted), Ministerial Services,
Common Recruitment and Promotion Rules, 2014, if ambiguous to warrant
clarification/relaxation; (iii) If 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 therefore,
invalid; (iv) In absence of prior consultation with the Commission, the
relaxation/clarificatory order if was in conformity with 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/IT from a recognised University/Institution was not an essential
eligibility qualification; (vi) Candidates holding qualifications other than
the one prescribed by the 2014 Rules or the advertisement, though allegedly
higher, if could be considered eligible; (vii) Employer if 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.
Himachal Pradesh, Department of Personnel, Junior Office
Assistant (Information Technology), Class-III, (Non-Gazetted),
Ministerial Services, Common Recruitment and Promotion Rules,
2014 – Recruitment of Junior Office Assistants– Essential eligibility
qualifications under the Rules – Relaxation in, after the last date for
813
814 SUPREME COURT REPORTS [2023] 16 S.C.R.
receipt of the applications – Change in eligibility criteria midway –
Legality:
Held: 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 – In the present
case, it is not shown that the advertisement reserved the power to relax
the essential eligibility qualifications specified in the advertisement at
any later stage– It is not demonstrated that after the decision to relax the
eligibility criteria was taken, the same was widely publicised – Further,
the clarificatory/relaxation order providing equivalence to certain courses
was not founded on empirical data – If there existed a statutory procedure
for granting recognition, an Institution cannot be considered recognized
dehors that procedure – 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, 16 –
Relaxation/clarificatory order approved by the State cabinet after the last
date fixed by the advertisements (for Post Code 447 and 556) for receipt
of applications from candidates, is not legally sustainable qua those posts,
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
– Argument that requirement to hold one year diploma in the specified
courses was not an essential qualification, rejected – Furthermore, there
existed no provision in the extant Rules or the advertisement to treat any
other qualification as higher or equivalent to the one specified, claim
of candidates who could not demonstrate that they held the prescribed
essential qualifications, rejected – An employer cannot be forced to fill
all the existing vacancies under the old Rules – Directions contained in
paragraphs 33 and 34 of the impugned judgment of the High Court, set
aside – Further directions issued – Appointments already made under the
first advertisement (for Post Code 447) not to be disturbed – Constitution
of India – Articles 14, 16 – Service Law – Appointment/Recruitment/
Selection. [Paras 26, 27, 30, 35, 38, 39, 45]
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 815
COMMISSION & ORS.
LIST OF CITATIONS AND OTHER REFERENCES
Rakesh Kumar Sharma v. State (NCT of Delhi) & Ors. (2013) 11 SCC
58; Bedanga Talukdar v. Saifudaullah Khan [2011] 11 SCR 635 : (2011)
12 SCC 85 – relied on.
Sanjay K. Dixit v. State of U.P (2019) 17 SCC 373; Mukul Kumar
Tyagi v. State of U.P [2019] 16 SCR 1145 : (2020) 4 SCC 86; Krishna
Rai v. Banaras Hindu University (2022) 8 SCC 713; Union of India v.
Somasundaram Viswanath & Ors. (1989) 1 SCC 175; P.D. Aggarwal & Ors.
v. State of U.P. & Ors. [1987] 3 SCR 427 : (1987) 3 SCC 622; Dhananjay
Malik v. State of Uttaranchal [2008] 3 SCR 1035 : (2008) 4 SCC 171; State
of Gujarat v. Arvindkumar T. Tiwari [2012] 7 SCR 1072 : (2012) 9 SCC 545;
Maharashtra Public Service Commission v. Sandeep Sudhakarrao Lavhekar
[2019] 7 SCR 94 : (2019) 6 SCC 362; State of M.P. v. Raghuveer Singh
Yadav (1994) 6 SCC 151; Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz
Ahmad & Ors. [2018] 14 SCR 1082 : (2019) 2 SCC 404; Mohammad Shujat
Ali & Ors. vs. Union of India & Ors. [1975] 1 SCR 449 : (1975) 3 SCC 76;
Bank of India v. Aarya K. Babu [2019] 11 SCR 627 : (2019) 8 SCC 587;
Shankarsan Dash v. Union of India (1991) 3 SCC 47 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7602 of 2023.
From the Judgment and Order dated 31.12.2021 of the High Court of
Himachal Pradesh at Shimla in LPA No. 43 of 2021.
With
Civil Appeal Nos.7603, 7604, 7605 and 7606 of 2023.
Appearances:
Ms. Kaveeta Wadia, Ms. Astha Sharma, Srisatya Mohanty,
Ms. Anju Thomas, Sanjeev Kaushik, Ms. Mantika Haryani, Shreyas Awasthi,
Himanshu Chakravarty, Ms. Ripul Swati Kumari, Ms. Sruthi Venugopal,
Bhanu Mishra, Devvrat Singh, Ms. Muskan Surana, Ms. Vandana Sehgal,
Ms. Nidhi Mohan Parashar, Vikrant Kumar, Ms. Shruti Venugopal, Advs.
for the Appellants.
816 SUPREME COURT REPORTS [2023] 16 S.C.R.
Abhinav Mukerji, A.A.G., Anup Kumar Rattan, Advocate General,
J.S. Attri, Sr. Adv., Abhinav Mukerji, Puneet Rajta, Akshay C. Shrivastava,
Mrs. Bihu Sharma, Ms. Pratishtha Vij, Vinod Sharma, Vivek Narayan
Sharma, Mrs. Mahima Bhardwaj, Ms. Laksha Bhavnani, Shubham Awasthi,
Sudhanshu Khandelwal, Rajeev Kumar Jha, Rohit Sharma, Ram Kumar,
Rameshwar Prasad Goyal, Vikas Kumar Singh, Tarun Gupta, Anmol
Mishra, Atul Kumar, Abhishek Sharma, Yatinder Chaudhary, Davinder
Singh Khurana, Manoj Rajpoot, Vikrant, Ms. Rajani Ohri Lal, Himinder
Lal, Yaduinder Lal, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
MANOJ MISRA, J.
1. Leave granted.
2. All these appeals are directed against a common judgment and order1
of the High Court2 disposing of a batch of writ petitions as well as intra-court
appeals concerning recruitment on the post of Junior Office Assistant3, a
Class III (Non-gazetted) post, under the Government of Himachal Pradesh4.
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, framed under the proviso to Article 309 of
1 Order dated 31.12.2021
2 High Court of Himachal Pradesh
3 JOA
4 Govt.
5 2014 Rules
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 817
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the Constitution of India6, 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
6 Constitution
818 SUPREME COURT REPORTS [2023] 16 S.C.R.
(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
Board7 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
7 Selection Board
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 819
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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, 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 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,
820 SUPREME COURT REPORTS [2023] 16 S.C.R.
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 Board8, 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 Applications9 (for short O.A.) before the Tribunal10,
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 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.”
8 Takniki Board
9 O.A. Nos.2830, 2989, 2994, 2998, 3009 and 3026 of 2017
10 Himachal Pradesh State Administrative Tribunal
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 821
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(H) In deference to the above order, the Commission sought directions
/ clarifications / guidance from the Govt., inter alia, on the following
issues:
(1) Whether the diplomas possessed by those applicants
equivalent to the diploma required by the Rules.
(2) Whether diploma / certificate obtained from private Institutes,
regarding which there was no information about their recognition,
could be considered as one from a recognized University /
Institute.
(I) Pursuant to that, the Commission was informed about the Govt.’s
decision dated 21.08.2017, which was in the following terms:
“(1) All such candidates having one year Diploma in
Computer or higher qualification in Computer Science/
Application/IT from any private Institution like from
Society under Societies Act, Rashtriya Saksharta Mission
IT programme/Skill Development Programme etc. be
considered for final selection subject to having successfully
passed their skill test i.e. Typing Test on Computer and after
having obtained their undertaking/ declaration certifying
that they had attended the classes/ diploma course by
attending the classes regularly.
(2) That the Computer Science is not limited to the specific
nomenclature 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.
822 SUPREME COURT REPORTS [2023] 16 S.C.R.
(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, 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;
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 823
COMMISSION & ORS. [MANOJ MISRA, J.]
2290; 2388; 2394; and 7681 of 2020 before the High Court after
abolition of the Tribunal. These cases were at the instance of
candidates whose candidature was rejected for not possessing
qualifications as prescribed by the 2014 Rules.
(ii) O.A. No. 5543 of 2017, filed on 13.10.2017, which, upon
transfer to the High Court, came to be registered as Writ
Petition No. 34 of 2019 before the High Court. This was by
those candidates who were not placed in the select list. Their
claim was that the relaxation order dated 21.08.2017 resulted
in inclusion of ineligible candidates and, therefore, they were
ousted from the merit list. In this O.A. No. 5543 of 2017), the
relief(s) sought were:
(i) That clarification dated 21.08.2017 and Office Order
dated 18.09.2017 be quashed and set aside; and
(ii) That Commission be directed to prepare a merit list
from amongst those 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 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
824 SUPREME COURT REPORTS [2023] 16 S.C.R.
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 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 &
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 825
COMMISSION & ORS. [MANOJ MISRA, J.]
Promotion Rules for the posts of Junior Office Assistant
(Information Technology), Class-Ill (Non-gazetted) in
various Departments of Himachal Pradesh Government,
as also Advertisement No. 32-3/2016 and not in terms of
communication, dated 19th March 2018.”
A review of the order dated 28.08.2018 was sought, which was
decided on 05.11.2018 in the following terms:
“Be that as it may, as the matter is sub judice before the
learned Tribunal and the Committee which has submitted its
report on 21.08.2017, has been so constituted by 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
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.
826 SUPREME COURT REPORTS [2023] 16 S.C.R.
(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 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, 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
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 827
COMMISSION & ORS. [MANOJ MISRA, J.]
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/ 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
828 SUPREME COURT REPORTS [2023] 16 S.C.R.
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 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 consideration those candidates who would be eligible by
virtue of the relaxation.
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 829
COMMISSION & ORS. [MANOJ MISRA, J.]
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 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
830 SUPREME COURT REPORTS [2023] 16 S.C.R.
assailed by any of the writ petitioners, departure, if any, from the
2014 Rules cannot be faulted. Otherwise also, where rules are
ambiguous, and it may take time to amend the rules, relaxation
and clarifications are permissible as part of administrative
exigency.
(iv) There is nothing on record to infer that action of the
State Government / HPSSC was actuated by extraneous
consideration(s) or lack of bona fide(s).
(v) The petitioners could not substantiate that anyone or more
of the selected persons obtained the requisite qualifications after
the cut-off date.
Impugned Decision of the High Court
9. In light of the findings / observations noticed above, the High Court
dismissed Writ Petition No. 34 of 2019 which questioned the relaxation
order; and upheld the process of selection and appointment against Post
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.
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 831
COMMISSION & ORS. [MANOJ MISRA, J.]
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:
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.
832 SUPREME COURT REPORTS [2023] 16 S.C.R.
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
(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.
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 833
COMMISSION & ORS. [MANOJ MISRA, J.]
Appellants herein are those candidates who failed to find their name
in the select list prepared after the 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 29th 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 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.
834 SUPREME COURT REPORTS [2023] 16 S.C.R.
(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 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 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
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 835
COMMISSION & ORS. [MANOJ MISRA, J.]
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, 198611 and the Regulations framed thereunder, set out
below:
Section 2 of the 1986 Act provides:
“In this Act, unless the context otherwise requires,-
(a) “affiliated institution” means an institution affiliated
to the Board in respect of any course or courses of study
in accordance with the provisions of the Act or regulations
made thereunder;
(b) “Board” means the Himachal Pradesh Takniki Shiksha
Board established under section 3…………….;
(e) “certificate” means the certificate awarded by the Board
to a person for successfully completing in an affiliated
institution such courses of study as may from time to time
be prescribed by regulations …………;
(g) “diploma” means a diploma awarded by the Board
to a person for successfully completing in an affiliated
institution such courses of study as may from time to time
be prescribed by regulations ……….;
(i) “industrial training” means training imparted to
students in Industrial Training Institutions;
(j) “institution” means institution imparting technical
education and industrial 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:
11 1986 Act
836 SUPREME COURT REPORTS [2023] 16 S.C.R.
“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
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 837
COMMISSION & ORS. [MANOJ MISRA, J.]
(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;
838 SUPREME COURT REPORTS [2023] 16 S.C.R.
(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;
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 839
COMMISSION & ORS. [MANOJ MISRA, J.]
(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
(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;
840 SUPREME COURT REPORTS [2023] 16 S.C.R.
(f) the fees for admission to the examinations of the Board
and the manner of their realisation;
(g) the conduct of examinations;
(h) the appointment of examiners, moderators, collators,
scrutinizers, tabulators, centre inspectors, superintendents
of centres and invigilators, and their duties and powers in
relation to the Board’s examinations, and the rates of their
remuneration;
(i) standards for buildings, including land appurtenant
thereto, the equipment and apparatus necessary for
institutions seeking affiliation;
(j) publication of results of examinations conducted by
the Board;
(k) the minimum educational and other qualifications for
admission of students to an affiliated institution;
(l) admission of students to affiliated institutions;
(m) the inspection of affiliated institutions 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.”
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 841
COMMISSION & ORS. [MANOJ MISRA, J.]
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 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 199312 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, 201013 which established a Regulatory Commission and
prescribed a regulatory framework for ensuring appropriate
standard of admission, teaching, examination, research and
12 1993 Regulations
13 2010 Act
842 SUPREME COURT REPORTS [2023] 16 S.C.R.
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) & Ors14.
That apart, in absence of power reserved in the advertisement to
relax the eligibility criteria, and there being no publicity of such
relaxation, relaxation of the eligibility criteria falls foul of the law
laid down by this Court in Bedanga Talukdar vs. Saifudaullah
Khan15 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
14 (2013) 11 SCC 58
15 (2011) 12 SCC 85
16 (2019) 17 SCC 373
17 (2020) 4 SCC 86
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 843
COMMISSION & ORS. [MANOJ MISRA, J.]
(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 University18; Union of India
vs Somasundaram Viswanath & Ors.19; and P.D. Aggarwal
& Ors. vs. State of U.P. & Ors.20.
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, 202021 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:
(i) The High Court justifiably upheld clarifications dated 21.08.2017
and 19.03.2018;
18 (2022) 8 SCC 713
19 (1989) 1 SCC 175
20 (1987) 3 SCC 622
21 the 2020 Rules
844 SUPREME COURT REPORTS [2023] 16 S.C.R.
(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 Uttaranchal22 ;
(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
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. Tiwari23.
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:
22 (2008) 4 SCC 171
23 (2012) 9 SCC 545
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 845
COMMISSION & ORS. [MANOJ MISRA, J.]
(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;
(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 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
846 SUPREME COURT REPORTS [2023] 16 S.C.R.
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 Lavhekar24.
(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
of this Court in State of M.P. vs. Raghuveer Singh Yadav25
(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
24 (2019) 6 SCC 362
25 (1994) 6 SCC 151
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 847
COMMISSION & ORS. [MANOJ MISRA, J.]
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
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 two 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 receipt of application under
the two advertisements had passed.
26 (2019) 2 SCC 404
848 SUPREME COURT REPORTS [2023] 16 S.C.R.
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?
(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
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 849
COMMISSION & ORS. [MANOJ MISRA, J.]
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, 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 permissible as it would violate the mandate
of Articles 14 and 16 of the Constitution of India.
32. ………. It is settled law that there can be no relaxation in the
terms and conditions contained in the advertisement unless the
850 SUPREME COURT REPORTS [2023] 16 S.C.R.
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 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
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 851
COMMISSION & ORS. [MANOJ MISRA, J.]
a 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 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
27 (1975) 3 SCC 76
852 SUPREME COURT REPORTS [2023] 16 S.C.R.
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. Babu28.
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.
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
28 (2019) 8 SCC 587
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 853
COMMISSION & ORS. [MANOJ MISRA, J.]
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”
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
854 SUPREME COURT REPORTS [2023] 16 S.C.R.
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 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
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 855
COMMISSION & ORS. [MANOJ MISRA, J.]
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: Shankarsan Dash vs. Union of India29). 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, either due to resignation by the
appointed candidates or otherwise, while there are only 29 SLP petitioners
29 (1991) 3 SCC 47
856 SUPREME COURT REPORTS [2023] 16 S.C.R.
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. 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
ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION 857
COMMISSION & ORS. [MANOJ MISRA, J.]
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 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 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 the third advertisement
dated 21.09.2020 for Post Code 817. Thus, recruitment for Post Code
858 SUPREME COURT REPORTS [2023] 16 S.C.R.
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.
Headnotes prepared by: Appeals disposed of.
Divya Pandey
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