Supreme Court: In a bunch of appeals challenging the judgment and order passed by Himachal Pradesh High Court regarding recruitment to the post of Junior Office Assistant, a Class III (Non-gazetted) post, the Division Bench of Hrishikesh Roy and Manoj Misra, JJ. Set aside the impugned judgment and order stating that the essential qualifications advertised in accordance with the applicable Rules could not be relaxed by the Government after last date of applications, while the same was not even publicized giving applicants the due opportunity.
The Himachal Pradesh, Department of Personnel, Junior Office Assistant (Information Technology), Class-III, (Non-Gazetted), Ministerial Services, Common Recruitment and Promotion Rules, 2014 were notified on 24-12-2014 for recruitment and promotion for JOA post in various government departments. The said 2014 rules prescribed qualifications, mode of selection and State’s powers to relax any of the provisions.
On 13-02-2015, the Himachal Pradesh Subordinate Services Selection Board invited applications for appointment to 1421 posts of JOA prescribing same qualifications as in Rule 7 of the 2014 Rules, with last date to apply being 18-03-2015, but 2-04-2015 being the last date for residents of certain districts. The dates were extended upto 31-10-2015. The said recruitment advertisement specifically required the candidates to fulfill all the essential qualifications, or their candidature may be rejected at the time of personal interview.
Due to alleged ambiguity regarding certificate/diploma courses from registered institutes, the State relaxed that aspect by broadening the scope of such institutes, which led to more eligible candidates as against those eligible as per the advertisement or 2014 Rules. To explain in crux, this aspect led to initiation of litigation from candidates who lost in merit due to relaxation, and those who qualified due to relaxation but whose appointment was halted, etc. Meanwhile, the appointment process through first advertisement was put on hold, and two more advertisements were issued for recruitment to the same post.
High Court’s Impugned Decision
The High Court highlighted the gaps in the 2014 Rules regarding essential qualifications and supported the State’s power to relax qualifications and applauded the 2020 Rules for being more specific. The High Court dismissed the petition questioning relaxation order, upheld selection and appointment process for the first advertisement, refused consideration of candidates benefitted from such relaxation and directed the same relaxation to be accorded in further advertisement for JOA recruitment and redraw the merit list accordingly. The said decision was appealed against in the instant matter arising out of multiple SLPs.
The Court highlighted the facts that the relaxation order was issued by the State Govt. after the last date for applications for the first two advertisements, without consultation with the Himachal Pradesh Public Service Commission. The Court framed 7 issues and decided one by one
1. Validity of Relaxation after last date
The Court reiterated the importance of fulfilling the eligibility criteria by the candidates by citing Rakesh Kumar Sharma v. State (NCT of Delhi), (2013) 11 SCC 58, Bedanga Talukdar v. Saifudaullah Khan, (2011) 12 SCC 85, Sanjay K. Dixit v. State of U.P., (2019) 17 SCC 373. The Court expressed that the advertisement in the instant matter did not reserve State’s power to relax essential eligibility qualifications at a later stage but mandated the same by the last date of receipt of applications. The Court viewed that the even if the power to relax existed, the same was not exercised in consonance with the settled legal principles, thereby violated the constitutional mandate under Articles 14 and 16 of the Constitution of India.
2. Ambiguity in eligibility qualifications under 2014 Rules
The Court perused Rule 7 prescribing one year diploma being one of the essential qualifications which was tagged to be ambiguous since the recognized institution was nowhere defined, which led to the relaxation/clarification order. The Court regarded such relaxation lacking any empirical data around equivalent courses.
3. Statutory regime for recognition of an Institution
The Court commented that in case a statutory procedure existed, an institution could not be considered as recognized without following that procedure. The Court cited Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76 for equivalence being a technical issue where Courts must restrain from disturbing the decision of made on recommendation of an expert body, unless relevant. The instant case pertained to recognition of courses which in its view amounted to changing the eligibility criteria, which even if relaxed midway, should have been publicized affording an opportunity for those who were left out, as was held in Bank of India v. Aarya K. Babu, (2019) 8 SCC 587.
4. Relaxation order in the absence of Consultation with Commission
5. Value of diploma for process requiring written and computer typing test
The Court rejected the argument that requirement to hold 1 year diploma in specified courses was not an essential qualification, since the same was indicated in 2014 Rules as well as the advertisement so concerned.
6. Essential qualifications under 2014 Rules
The Court noted that neither 2014 Rules nor the advertisement recognized any other, or higher qualification to meet the eligibility criteria specified. While referring to Zahoor Ahmad Rather v. Imtiyaz Ahmad, (2019) 2 SCC 404 the Court expressed that “since we find that there exists no provision in the extant Rules or the advertisement to treat any other qualification as higher or equivalent to the one specified therein, the claim of such candidates, who could not demonstrate that they held the prescribed essential qualifications, is liable to be rejected and has rightly been rejected by the High Court as well.”
7. Force on State to fill all vacancies or restriction on carry forward
The Court stated the well settled norm that the employer could not be forced to fill all existing vacancies under the old Rules, and that the employer could withdraw an advertisement to issue a fresh one in conformity with the amended Rules. While citing Shankarsan Dash v. Union of India, (1991) 3 SCC 47, the Court explained that “Even a candidate included in the merit list has no indefeasible right to appointment even if the vacancy exists.”
The Court set aside the impugned judgment and order passed by the Himachal Pradesh High Court. For candidates appointed 5-6 years ago under the first advertisement not pursuant to the impugned judgment but by the State based on relaxation accorded, the court highlighted the fact that they were impleaded but notices were not served directly but through State. The Court noted that those appointees who had not only passed the written test but also cleared the computer typing test, were Class III (Non-gazetted) employees who had gained adequate proficiency in their jobs and were placed in various State Departments. Therefore, the Court restrained from disturbing their appointments to avoid paralyzing Govt. setup. The Court also did not find it appropriate to fill the vacancies arisen and supported those to be filled vide fresh advertisement in accordance with extant Rules.
[Ankita Thakur v. HP Staff Selection Commission, 2023 SCC OnLine SC 1472, decided on 9-11-2023]
Judgment authored by: Justice Manoj Misra
Advocates who appeared in this case :
For Petitioner: AOR Vandana Sehgal, Advocate Kaveeta Wadia, AOR Astha Sharma, Advocate Srisatya Mohanty, Advocate Anju Thomas, Advocate Sanjeev Kaushik, Advocate Mantika Haryani, Advocate Shreyas Awasthi, Advocate Himanshu Chakravarty, Advocate Ripul Swati Kumari, Advocate Bhanu Mishra, Advocate Muskan Surana, Advocate Anvita Dwivedi, Advocate Lihzu Shiney Konyak, Advocate Kaveeta Wadia, AOR Nidhi Mohan Parashar, Advocate Vikrant Kumar
For Respondents: AOR Abhinav Mukerji, AOR Vinod Sharma, AOR Vivek Narayan Sharma, Advocate Laksha Bhavnani, Advocate Mahima Bharadwaj Kalucha, Advocate Rajeev Kumar Jha, Advocate Sudhanshu Khandelwal, Advocate Pranshu Kaushal, Advocate Shubham Singh, Advocate Dinesh Sharma, AOR Rameshwar Prasad Goyal, AOR Tarun Gupta, Advocate Raj Sudhakar Yadav, Advocate Atul Kumar, Advocate Abhishek Sharma, Advocate Manoj Rajpoot, Advocate Vikrant, AOR Rajani Ohri Lal, Advocate Yaduinder Lal