Delhi High Court: In a case wherein, the petitioner filed a petition under Article 226 of the Constitution to seek deletion of the preference clause prescribed in eligibility section of the published advertisement, Chandra Dhari Singh, J.* held that Respondent 1, Public Enterprises Selection Board had not violated the fundamental right of the petitioner by creating separate classification for better qualification, and accordingly, dismissed the petition.
Background
In the instant case, the petitioner joined Respondent 2 in 1994 and was currently working as the Chief General Manager (Corporate Finance & Treasury) under the H Grade. Respondent 2 was a Schedule-A, Central Public Sector Enterprise (‘CPSE') in the petroleum sector with the administrative jurisdiction under Respondent 3. Respondent 1 was a high-powered body constituted by the Government of India for appointment of top management posts in various CPSEs including Respondent 2.
Respondent 1 published an advertisement for the vacant post of Director (Finance) with Respondent 2 and the advertisement prescribed eligibility criteria for the said post, wherein Chartered Accountants were given preference over Cost Accountants, as per the decision of the internal meeting which was formally approved by Respondent 1 and was duly notified to all the CPSEs .
Thereafter, the petitioner applied for the post, but was not shortlisted for the interview and thus aggrieved by the same, filed the present petition.
This Court vide interim order dated 22-03-2023 allowed the petitioner to appear for the interview and this Court had granted the interim relief on condition that the outcome of the interview shall be subject to the final outcome of the instant petition. However, the petitioner was not selected in the interview and hence, filed the petition to seek deletion of the preference clause prescribed in eligibility section of the advertisement published for the vacant post of Director (Finance) in Respondent 2.
The petitioner placed reliance on Geeta Sharma v. Public Enterprises Selection Board, 2022 SCC OnLine Del 3600 and contended that the preference given to Chartered Accountants over the Cost Accountants was arbitrary, contravened the settled principles of law and violated the fundamental rights of the petitioner.
Analysis, Law, and Decision
The issues for consideration before this Court were:
1. Whether Cost Accountants could be treated equivalent to the Chartered Accountants for appointment for the post of Director (Finance) in the CPSEs. If not, whether the same violated Article 14 and 16 of the Constitution?
The Court, while considering the difference between Chartered Accountants and Cost Accountants, opined that both the professions were governed by different rules and regulations and were established for different purposes and had different work profile. The Court noted that Chartered Accountants in India were governed by the Chartered Accountants Act, 1949 and were bound by the rules and regulations laid down by the body created by an act of the Parliament. Similarly, Cost Accountants were registered with the Institute of Cost Accountants of India which was also a Statutory Body created by the Cost Accountants Act, 1959. The Court further analyzed Section 288 of the Income Tax Act, 1961 and opined that there existed distinction between the role and responsibility of Chartered Accountants and Cost Accountants as the said provision only provided for Chartered Accountants as explanation of the term ‘accountants' which was not replaceable with Cost Accountants. Therefore, the Court opined that Chartered Accountants were treated differently than Cost Accountants in some statues and there could be no restriction upon the authorities to treat them differently.
The Court further relied on State of Mysore v. P. Narasinga Rao, (1968) 1 SCR 407, T.R. Kothandaraman v. T.N. Water Supply & Drainage Board, (1994) 6 SCC 282, and Chhattisgarh Rural Agriculture Extension Officers Assn. v. State of M.P., (2004) 4 SCC 646 and opined that, it was within the State's power to create separate classifications based on reasonable differentia and the State was empowered to create classifications based on qualifications.
The Court further compared the nature of the Chartered Accountant and the Cost Accountant's job and opined that Chartered Accountants were better placed for the post of Director (Finance), where apart from supervision of expenses, the job required management of audits, budgets and providing financial advice.
Thus, the Court opined that since Cost Accountants and Chartered Accountants could not be similarly placed for appointment to the post, therefore, treating them differently did not amount to discrimination and violation of fundamental rights under the Constitution.
2. Whether this Court could issue mandamus in the instant case and set aside the minutes of the meeting when the same was not prayed by the petitioner in the pleadings?
The Court stated that in the instant case, the petitioner had not challenged the meeting’s minutes, through which the preference decision was formulated, but prayed for the issue of mandamus to do away with the preference clause. Thus, the Court referred to Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 and Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi, (2010) 1 SCC 234 and opined that considering the settled principles regarding both issuance of mandamus and principles governing the grant of reliefs, it would not delve into the issue which was not prayed for in the present petition. The Court opined that “the courts should not delve into the aspects which were related to reliefs not prayed by the petitioner and it was fundamental that a relief could only be granted in a case when it was prayed by the petitioner. Therefore, any relief, not prayed for by the petitioners, could not be granted by this Court under Article 226 of the Constitution”.
3. Whether the Court could set aside the expert committee's decision for the appointment of high-level positions when there was no challenge to the expert committee's constitution?
The Court relied on Secy. (Health) Deptt of Health & F.W. v. Anita Puri, (1996) 6 SCC 282 and UPSC v. M. Sathiya Priya, (2018) 15 SCC 796, and opined that the expert committees were constituted of individuals who were well versed with the nature of tasks to be performed by the persons appointed to the high-level position and the said decisions need not be interfered with by the courts in normal circumstances.
Thus, in the instant case, since the constitution of Respondent 1 was not challenged, and the preference clause was challenged, the Court opined that the expert's decision could not be questioned unless clear bias and mala-fide was stablished.
Further, the Court stated that even though the petitioner was aggrieved by the qualification clause, he still chose to apply and challenged the preference clause only after he was not shortlisted for the interview. The Court relied on Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285 and Madan Lal v. State of J&K, (1995) 3 SCC 486, and opined that the petitioner did not come to the Court with clean hands and only filed an instant petition when his application was rejected by the respondents. The Court further stated that the petitioner could not be granted relief and appointed to the post as principle of estoppel was attracted which precluded the petitioner from questioning the selection process.
The Court held that Respondent 1 had not violated the fundamental right of the petitioner by creating separate classification for better qualification, and accordingly, dismissed the petition.
[Ruchir Agrawal v. Public Enterprises Selection Board, 2023 SCC OnLine Del 5252, decided on 24-08-2023]
Advocates who appeared in this case :
For the Petitioner: Gagan Gupta, Sachin Gupta and Yashi Agrawal, Advocates
For the Respondents: V.N. Koura, S. Sirish Kumar and Nirbhay Narain Singh, Advocates; Manisha Agrawal Narain, CGSC with Sandeep Singh Samaria, Advocate with Mritunjay, Director with Vikash; Arvind Varma, Senior Advocate with Rohan Thawani, Shalini Kapoor, Pratul Pratap Singh, Smridhi Sharma and Ambica Sundaram, Advocates
*Judgment authored by – Justice Chandra Dhari Singh
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