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2015 DIGILAW 173 (UTT)

Surendra Kumar v. State of Uttarakhand

2015-03-26

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT : K.M. Joseph, J. Appellants are the writ petitioners. The Uttarakhand Technical Education Board (hereinafter referred to as the Board) issued an advertisement dated 20.12.2011 for the Accounts cadre, which was given a Group code, named, Group-29. The eligibility criteria as well as the posts in different Departments were indicated in the advertisement. The result of the written examination was declared on 07.10.2013. The writ petition was filed seeking direction to permit the appellants to appear in the computer type test on 18.01.2014 and to consider the candidature of the appellants for G-29 posts. 2. This writ petition came to be heard along with three other writ petitions. In the said three writ petitions, advertisement was issued for two posts by the Uttarakhand Public Service Commission (hereinafter referred to as the Commission). The writ petitioners in the said three writ petitions came to Court complaining that for the posts therein, one of the qualifications, which was fixed, namely, ‘O’ Level Certificate in Computer Operations was not a qualification, which was readily available as the Institutes, which issued the said Certificates were not active in the State of Uttarakhand. 3. Learned Single Judge by the impugned judgment has disposed of all the three writ petitions in the following manner: “7. The insistence on ‘O’ Level certificates issued by the DOEACC society in the present case does not appear to be reasonable, as this Court has been informed that there are not sufficient number of institutions in the State of Uttarakhand granting such Certificates. In fact, out of 145 only 59 candidates were having such certificates. By and large, the candidates who reside in hill areas have been ousted from the competition, as they do not have such certificates for the simple reason that the area to which they belong, DOEACC society does not have such institutions. 8. The report of the committee is also not very helpful to the petitioners as there is no clarity in the said report about the course which the petitioners had undergone except that in case the certificates are from recognized organizations of the Centre or State Government, the matter be considered sympathetically. 9. 8. The report of the committee is also not very helpful to the petitioners as there is no clarity in the said report about the course which the petitioners had undergone except that in case the certificates are from recognized organizations of the Centre or State Government, the matter be considered sympathetically. 9. In view thereof, this Court finds that since the intention of the Government was to see whether each candidates has computer knowledge and computer operating skills and if the candidates have undergone such course which gives them this ability and the course is recognized either by the State Government or by the University, then the Public Service Commission shall constitute a Committee which will comprise one representative of the Uttarakhand Public Service Commission and another representative of the Uttarakhand Technical Education Board and one representative appointed by the Principal Secretary, Technical Education, Government of Uttarakhand who would be an expert in the field of computer science, preferably from the recognized Institute in Uttarakhand such as Indian Institute of Technology. 10. The three members Committee shall examine the computer skill certificates of each of the petitioners and if such certificates are found to be recognized by the University or Government of India body or State Government then for such candidates a computer operation skill test be conducted, and if they are found to be up to the mark in the operation of computer and are judged to be skilled in computer, they be accordingly marked and recommendations made. 11. Since the entire result of the selection process is withheld, let the Committee be constituted immediately and the examination of the certificates be done by the Committee as early as possible but not later than eight weeks from the date of production of certified copy of this order.” 4. The appellants are before this Court challenging the judgment to the extent that the Commission was to constitute a committee and they desire that the said direction may be replaced by a direction that the Board will constitute a committee insofar as it relates to the appellants. 5. We heard Special Appeal Nos. 646 of 2014, 649 of 2014 & 651 of 2014 filed by the Commission along with this Appeal. 6. 5. We heard Special Appeal Nos. 646 of 2014, 649 of 2014 & 651 of 2014 filed by the Commission along with this Appeal. 6. We have disposed of the Appeals filed by the Commission by allowing the Appeals, setting aside the judgment of the learned Single Judge and dismissing the writ petitions, which were the subject matter of the Appeals filed by the Commission. We took the view that insofar as the Rules and the advertisement insisted on the candidates possessing the qualification of ‘O’ Level in Computer Operations, inter alia, it was not open to the Court to constitute a committee to examine the claim of the writ petitioners therein that though they did not possess ‘O’ Level in Computer Operations, they possessed qualification, which was equivalent or even higher. At the request of the learned counsel for the appellants in this case, we had permitted them to address arguments on a later date. 7. Learned counsel for the appellants would submit that the facts of the Appeals filed by the Commission are different from the facts present in this case. In this case, it is submitted that there are no Rules involved. It is further submitted that the advertisement is not based on any Rules. It is also submitted that the Court may bear in mind the stand of the Board, which, according to the appellants, indicated that the claim of the appellants would also be looked into even though they did not possess ‘O’ Level in Computer Operations. Our attention was also drawn to the interim order passed by the learned Single Judge, which reads as follows: “Petitioners have responded to an advertisement dated 20th December 2011, whereby, inter alia, Group-29 Posts of Accounts Cadre have been advertised. One of the essential qualifications for the posts, applied for by the petitioners, is ‘O’’ Level certificate in computer operation. It is contended by the learned Counsel for the petitioners that the petitioners have successfully done their diploma course from the recognized institute and they also possess certificate, which is higher than ‘O’ Level certificate, but still the petitioners are not being permitted to appear in the computer typing test scheduled to be held on 18th January, 2014. It is contended by the learned Counsel for the petitioners that the petitioners have successfully done their diploma course from the recognized institute and they also possess certificate, which is higher than ‘O’ Level certificate, but still the petitioners are not being permitted to appear in the computer typing test scheduled to be held on 18th January, 2014. It has further been contended that ‘O’ Level certificate is being provided by DOEACC Society (now, NIELIT) only, and in the State of Uttarakhand, there is no institute of that society nor there is any other institution which gives ‘O’ Level certificate in the computer science. Learned Counsel further contended that, in fact, by stipulating this condition, candidates belonging to the State of Uttarakhand are being denied the opportunity to compete for the Group-29 posts of Accounts Cadre advertised vide the advertisement dated 20.12.2011. Learned Counsel for the respondent no. 2/Uttarakhand Technical Board submitted that the board has given liberty to every candidate to come in its office along with his/her papers of educational qualifications and, upon scrutiny, if it is found that any candidate is having valid ‘O’ Level certificate or is otherwise eligible, he shall be allowed to appear in the typing test. Learned Counsel further submitted that it is open for the petitioners to approach the board. In the facts and circumstances of the case and also keeping in view the submissions made by learned Counsel for the parties, it is directed that till the next date of listing, respondents shall not declare the final result of Group-29 posts of Accounts Cadre advertised vide advertisement dated 20.12.2011. List on 18th February, 2014 in the daily cause list immediately after the fresh cases. Meanwhile, i.e. before 18.1.2014, it is open for the petitioners to approach the board and submit their papers pertaining to the said educational qualification for scrutiny and, upon scrutiny, if they are found eligible for competing in the computer typing test, they shall be permitted to appear in the said test. In case the petitioners are not permitted to appear in the aforesaid test, respondents shall file their respective counter affidavit before the next date of listing.” 8. In case the petitioners are not permitted to appear in the aforesaid test, respondents shall file their respective counter affidavit before the next date of listing.” 8. It is further submitted by the learned counsel for the appellants that in this Appeal, the only question is, whether this Court should grant relief sought in the Appeal, namely, to set aside the direction of the learned Single Judge to the extent that the Commission was directed to constitute a Committee. It is pointed out that in the advertisement, in respect of posts covered by Code-72, there is no requirement that the person must possess ‘O’ Level Certificate; in respect of posts covered by Code-72, what is in substance required apart from other qualifications is that the candidate should have knowledge to operate the computer; candidate should have experience certificate based on operations in computers and should have the capacity of 5000 key impression per hour. 9. Learned counsel for the Commission would also seek to extricate the Commission from the direction to the Commission to constitute the Committee. It is noteworthy that the Commission has not filed an Appeal challenging the direction as such but a petition is filed in the said regard. 10. Learned counsel for the Board Sri Rakesh Thapliyal would take stand that there is no challenge to the advertisement as regards the posts, which require possession of ‘O’ Level and the appellants are bound by the terms of the advertisement. He, however, would point out that in regard to the posts like the posts covered by Code-72, where ‘O’ Level is not specifically mentioned and the qualifications are as adverted to earlier by us, the case of the appellants will be considered. 11. Learned counsel for the Government Sri H.M. Bhatia would submit that the Court may take the same view as it has taken in Special Appeal Nos. 646 of 2014, 649 of 2014 & 651 of 2014 filed by the Commission. He would submit that even though the Appeals have not been carried either by the Government or by the Board, the principle of Order 41 Rule 33 of the Code of Civil Procedure could be drawn upon by the Court to avoid the inconsistent views being taken in matters, which otherwise require similar treatment. In this regard, he drew our attention to the following judgments: (1) Prahlad and others Vs. In this regard, he drew our attention to the following judgments: (1) Prahlad and others Vs. State of Maharashtra and another (2010) 10 SCC 458 (2) Choudhary Sahu Vs. State of Bihar (1982) 1 SCC 232 (3) Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi and others AIR 2013 SC 120 (4) Uco Bank and another Vs. Rajinder Lal Capoor (2007) 6 SCC 694 12. Learned counsel for the appellants would submit that it is true that they have not challenged the advertisement. It is pointed out that the facts of their case have not received the attention it deserved as the facts were different from the facts involved in the writ petitions filed by the candidates, who applied pursuant to the advertisement by the Commission. The cases came to be clubbed together and consequently, the writ petition may be considered after the judgment is set aside and the matter remitted back runs the argument. 13. They, at one stage, even requested to dismiss the matter as not pressed also, apparently, bearing in mind the view already taken by this Court in the Appeals filed by the Commission. Appellants would point out that the posts in question are not within the purview of the Commission and are not governed by any Rules, they reiterate. 14. The Board as a Recruiting Agency for various Departments has undoubtedly issued an advertisement. The advertisement is of the year 2011. The appellants have not challenged the advertisement. This means that they have accepted the terms of the advertisement. The advertisement relates to various posts; various qualifications are also prescribed for various posts. For some posts under the advertisement, possession of ‘O’ Level in Computer Operations is mandatory. We are left with no doubt that the language of the advertisement is unambiguous. While this is a case in respect of various posts, there are some posts such as the one covered by Code-72, where there is no requirement that the candidate must possess ‘O’ Level. On the other hand, knowledge of working in computers, as also, possession of Certificate indicating experience and also the capacity to have 5000 key impressions per hour alone are required. We have already noted the stand of the Board that in respect of those posts, the case of the appellants will be considered. 15. On the other hand, knowledge of working in computers, as also, possession of Certificate indicating experience and also the capacity to have 5000 key impressions per hour alone are required. We have already noted the stand of the Board that in respect of those posts, the case of the appellants will be considered. 15. In the Appeals filed by the Public Service Commission, we have already taken the view that in view of the qualifications, which were fixed under the Rules and the advertisement mandating that the candidate must possess ‘O’ Level in Computer Operations, the direction of the learned Single Judge for constitution of a Committee to examine the claim of the writ petitioners therein that they had equivalent or higher qualifications was not justified. The point of distinction, which the learned counsel for the appellants seek to lay stress on is, namely, that in the recruitment in question the matter was not governed by Rules does not appeal to us. Even if it is matter which is not governed by statutory Rules, when the recruiting body which is a public body issues an advertisement listing the qualification to be possessed, the issue of possession of qualification must be governed by the terms of the advertisement. We take this view keeping in mind the principle that possession of qualification is not a matter between the Recruiting Agency and the candidate alone. If any relaxation is to be given in the matter of qualification, it would, in short, amount to a fraud on members of the public. There would be many candidates, who would not have applied for the posts bearing in mind the qualifications, which are indicated in the advertisement. Once the advertisement professes to reflect the stand of the Recruiting Agency, who is obviously carrying out the recruitment on behalf of the Appointing Authority with its tacit approval, there cannot be any basis to interfere with the qualification. Therefore, on principle, even if it is not governed by any statutory Rule, the advertisement will govern the field. If that be so, in respect of posts, where ‘O’ Level in Computer Operations is a non-negotiable qualification, there cannot be a probe into the qualification of the appellants, who admittedly do not have ‘O’ Level Certificates to ascertain, whether they are equivalent or higher than the requisite qualification. If that be so, in respect of posts, where ‘O’ Level in Computer Operations is a non-negotiable qualification, there cannot be a probe into the qualification of the appellants, who admittedly do not have ‘O’ Level Certificates to ascertain, whether they are equivalent or higher than the requisite qualification. In this regard, there is no scope of taking a different view from the view we have taken in the connected Appeals filed by the Public Service Commission. 16. As regards the posts like the posts, which are covered by Code-72, necessarily, the case of the appellants must also be considered. 17. The question, however, arises as to what order is to be passed in the Appeal filed by the writ petitioners in the absence of an Appeal by the respondents? Order 41 Rule 33 reads as follows: “33. Power of court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.” 18. Section 141 of the Code of Civil Procedure vide the explanation makes it clear that the provisions of CPC as such will not apply to proceedings under Article 226 of the Constitution. In many High Courts, specific provisions of the CPC are made explicitly applicable to proceedings under Article 226 of the Constitution. Section 141 of the Code of Civil Procedure vide the explanation makes it clear that the provisions of CPC as such will not apply to proceedings under Article 226 of the Constitution. In many High Courts, specific provisions of the CPC are made explicitly applicable to proceedings under Article 226 of the Constitution. Proceeding on the basis, there are no such provisions making Order 41 Rule 33 as such applicable, we must, however, not hesitate to pose the question, whether the doctrine as such can be applied to proceedings under Article 226. Undoubtedly, the power under Order 41 Rule 33 is an extra ordinary power as it enables the Appellate Court to pass any order, which ought to have been passed even in absence of an Appeal by the respondents. In this connection, we may advert to the judgments, which have been cited before us. Prahlad and others Vs. State of Maharashtra and another reported in (2010) 10 SCC 458 , no doubt, was a case which arose under the Land Acquisition Act. Therein, the Court held as follows: “The provision of Order 41, Rule 33 of CPC is clearly an enabling provision, whereby the Appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression “order ought to have been made” would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying ‘the court may pass such further or other order as the case may require.” This expression “case” would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.” 19. Therefore, if either Order 41 Rule 33 is available expressly or if the principle of the provision is applicable, then the expression ‘order which ought to have been made’, would mean an order, which justice of the case requires to be made. 20. In Choudhary Sahu Vs. Therefore, if either Order 41 Rule 33 is available expressly or if the principle of the provision is applicable, then the expression ‘order which ought to have been made’, would mean an order, which justice of the case requires to be made. 20. In Choudhary Sahu Vs. State of Bihar reported in (1982) 1 SCC 232 , the Court, inter alia, held as follows: “12. The object of this Rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The Rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from. 13. Ordinarily, the power conferred by this Rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this Rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the law of the limitation or the law of court fees etc. 21. No doubt, on the facts of the case, the Court proceeded to hold further as follows: “14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order 41, Rule 33. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order 41, Rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation.” 22. Apparently, the learned Government Pleader Shri H.M. Bhatia seeks to invoke this judgment by pointing out that if this Court did not invoke the principle of Order 41 Rule 33, there would be contradictory and inconsistent decisions. 23. In Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi and others reported in AIR 2013 SC 120 , the question arose from an order of the Speaker accepting merger of MLAs of one political party with other and for disqualification of the concerned MLAs. Therein, the Court took the view as follows: “46. The submissions made by Mr. Nidhesh Gupta relating to Order 41, Rule 33, in our view, are not of much relevance on account of what we have indicated hereinabove. Order 41, Rule 33 vests the Appellate Court with powers to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or the order, as the case may require. The said power is vested in the Appellate Court by the statute itself, but the principles thereof cannot be brought into play in a matter involving a decision under the constitutional provisions of the Tenth Schedule to the Constitution, and in particular paragraph 6 thereof.” 24. It is noteworthy, according to Sri Bhatia, that the principle of Order 41 Rule 33 was not invoked in view of the facts as it related to a decision under the constitutional provisions of the Tenth Schedule to the Constitution. 25. In UCO Bank and another Vs. It is noteworthy, according to Sri Bhatia, that the principle of Order 41 Rule 33 was not invoked in view of the facts as it related to a decision under the constitutional provisions of the Tenth Schedule to the Constitution. 25. In UCO Bank and another Vs. Rajinder Lal Capoor reported in (2007) 6 SCC 694, the matter arose in the following factual matrix: the respondent was proceeded against. Even though he was allowed to retire, the penalty of removal from service was imposed. The writ petition filed by the employee was allowed in part noting that he was guilty of commission of procedural irregularities. The punishment was found to be grossly disproportionate. The penalty of removal from service was converted into compulsory retirement. In Appeal finally before the Hon’ble Apex Court, the Hon’ble Apex Court took the view, inter alia, that an order of dismissal or removal from service can be passed only when the employee is in service. Thereafter, the Court proceeded to hold as follows: “24. We are not oblivious of the peculiar legal position obtaining in this case. A gross illegality has been committed by the appellant in initiating a department proceeding against the respondent but he did not question the same. The learned Single Judge of the High Court held him guilty of commission of some irregularities. He did not question the correctness or otherwise of the said order also. 25. However, the legal effect of the order passed by the learned Single Judge could be that he became entitled to receive all retiral benefits. Thus, in our opinion, it is permissible for him to raise all contentions in support of the order passed by the learned Single Judge, in terms of the provisions contained in Order 41 Rule 33 of the Code of Civil Procedure and the principles akin thereto. 27. We, therefore, are of the opinion that although the learned Single Judge and also the Division Bench of the High Court may not be correct in passing the impugned judgments, we should in exercise of discretionary jurisdiction under Article 142 of the Constitution of India, allow the writ petition of the respondent to do complete justice to the parties.” 26. We should also notice the judgment of the Hon’ble Supreme Court in Puran Singh and others Vs. State of Punjab and others reported in (1996) 2 SCC 205 . We should also notice the judgment of the Hon’ble Supreme Court in Puran Singh and others Vs. State of Punjab and others reported in (1996) 2 SCC 205 . Therein, pending the writ petition, the second respondent died. The High Court noting that the legal heirs have not been substituted dismissed the writ petition. The letters patent appeal was also dismissed. The Hon’ble Apex Court, inter alia, held as follows: “10. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed "as far as it can be made applicable, in all proceedings". In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any court of civil jurisdiction. The explanation which was added is more or less in the nature of proviso, saying that the expression ‘proceedings’ shall not include any proceeding under Article 226 of the Constitution. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any court of civil jurisdiction except to proceedings under Article 226 of the Constitution. Once the proceeding under Article 226 of the Constitution has been excluded from the expression ‘proceedings’ occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure provided in the Code can be made applicable to a proceeding under Article 226 of the Constitution? In this background, how merely on basis of Writ Rule 32 the provisions of the Code shall be applicable to writ proceedings? Apart from that, Section 141 of the Code even in respect of other proceedings contemplates that the procedure provided in the Code in regard to suits shall be followed "as far as it can be made applicable". Rule 32 of Writ Rules does not specifically make provisions of Code applicable to petitions under Articles 226 and 227 of the Constitution. It simply says that in matters for which no provision has been made by those rules, the provisions of the Code shall apply mutatis mutandis in so far as they are not inconsistent with those rules. Rule 32 of Writ Rules does not specifically make provisions of Code applicable to petitions under Articles 226 and 227 of the Constitution. It simply says that in matters for which no provision has been made by those rules, the provisions of the Code shall apply mutatis mutandis in so far as they are not inconsistent with those rules. In the case of Rokyaybi v. Ismail Khan, AIR 1984 Karnataka 234 in view of Rule 39 of the Writ Proceedings Rules as framed by the Karnataka High Court making the provisions of Code of Civil Procedure applicable to writ proceedings and writ appeals, it was held that the provisions of the Code were applicable to writ proceedings and writ appeals. 11. We have not been able to appreciate the anxiety on the part of the different courts in judgments referred to above to apply the provisions of the Code to Writ Proceedings on the basis of Section 141 of the Code. When the constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious. 12. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious. 12. As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised on well known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final.” 27. Still further, we notice the judgment of the Hon’ble Apex Court in K. Venkatchala Bhat and another Vs. Krishna Nayak and others reported in (2005) 4 SCC 117 . Still further, we notice the judgment of the Hon’ble Apex Court in K. Venkatchala Bhat and another Vs. Krishna Nayak and others reported in (2005) 4 SCC 117 . Therein, the Court was concerned with the question as to whether Order 23 Rule 3 of the Code can be pressed into service in writ proceedings also. The Court took the view that a compromise should be signed either by the parties or their counsel or even their agents. It involved a case, where a compromise memo or an affidavit signed by the respondent only and not by the appellants was acted upon. It is noted that even the signature of the counsel for the petitioner was not there. After noting Order 23 Rule 3, the Court, inter alia, held as follows: “11. Though in terms of Section 141 (Explanation) CPC, the expression “proceedings” is not applicable to proceedings under Article 226 of the Constitution, the requirement under Order 23 Rule 3 can be pressed into service even in writ proceedings.” 28. We notice interestingly, that in Commissioner of Endowments and others Vs. Vittal Rao and others reported in (2005) 4 SCC 120 , the writ petition was disposed of on the basis of the terms of the memorandum on the basis of the submissions made by the learned counsel for the parties. The Court noticed that that there was no case that the counsel did not have authority to make a statement before the Court to accept the compromise. The Court, further, held that the High Court can pass appropriate orders while exercising jurisdiction under Article 226 of the Constitution and the said power cannot be controlled or affected by Order 23 Rule 3. The Court, inter alia, held as follows: “17. The High Court while exercising jurisdiction under Article 226 of the Constitution has jurisdiction to pass appropriate orders. Such power can neither be controlled nor affected by the provisions of Order 23 Rule 3 CPC. It would not be correct to say that the terms of Order 23 Rule 3 should be mandatorily complied with while exercising jurisdiction under Article 226 of the Constitution. Otherwise an anomalous situation would arise such as before disposing of the writ petition, issue should be framed or evidence should be recorded, etc. It would not be correct to say that the terms of Order 23 Rule 3 should be mandatorily complied with while exercising jurisdiction under Article 226 of the Constitution. Otherwise an anomalous situation would arise such as before disposing of the writ petition, issue should be framed or evidence should be recorded, etc. Proceedings under Article 226 of the Constitution stand on a different footing when compared to the proceedings in suits or appeals arising therefrom.” 29. From reading of the aforesaid judgments, we draw the following conclusions: The Procedure under the CPC has been expressly excluded from proceedings instituted under Article 226 of the Constitution by virtue of Explanation to Section 141 of CPC. The purport of writ proceeding is different from proceedings in a suit as the purport in the former is to reach justice to those, who invoke the constitutional remedy at the earliest. The Code of Civil Procedure sets out the procedure, which is clearly suited for decision making process in a suit as the suit passes through various stages. The writ proceeding is an extra ordinary proceeding of a discretionary nature; it is original in nature, but after the insertion of Explanation in Section 141, there can be no scope for applying the CPC as such, but that is not to say that many provisions in the Civil Procedure Code do not embody salutary principles, which can act as a guide for the writ court. In other words, the principle of certain provisions can be made use of as they tend to embody equitable principles. The doctrine of res judicata or rather the general principle of res judicata is available to the writ court, even though the principle has obtained statutory form as far as a suit is concerned in Section 11 of CPC. We have already noticed that the Court has drawn upon Order 23 Rule 3 in one of the decisions, which we have adverted to, though we equally note that the Hon’ble Apex Court has also discountenanced the plea based on Order 23 Rule 3. We have also set out the facts, however, in both the cases; in one case, the petitioner was not party to the Memorandum; whereas in the other, the writ court disposed of the matter in terms of the compromise which had the approval of the counsel for both sides. We have also set out the facts, however, in both the cases; in one case, the petitioner was not party to the Memorandum; whereas in the other, the writ court disposed of the matter in terms of the compromise which had the approval of the counsel for both sides. As far as Order 41 Rule 33 is concerned, the purport of the power granted to the Appellate Court is to pass an order, which the lower Court ought to have made, which, in turn, has been interpreted to mean an order, which will suit the interest of justice. Therefore, the underlying principle of Order 41 Rule 33 is that the Appellate Court is endowed with the power to pass an order, which is in the interest of justice, notwithstanding the fact that the granting of the relief in the said direction involves the passing of an order, which apparently is against the appellants without there being either cross objections or an Appeal by the respondents. In other words, even without the respondents having appealed against the judgment if the interest of justice so requires, the Appellate Court is not powerless to grant relief. The wholesome policy or the doctrine underlying this salutary provision appears to us to be that in appropriate cases, the Appellate Court can give a just quietus to the lis. In other words, proceeding on the basis that such a power is not made available, the Appellate Court will be left with the situation, where despite the interest of justice so requiring in a palpable case, where a particular order is required as held by the Hon’ble Apex Court in a catena of decisions, it is rendered powerless to do so. It was held by the Hon’ble Apex Court in (1996) 2 SCC 205 that the provisions of the Code of Civil Procedure can be taken as a guide. If the writ court seeks to draw upon the principle underlying the provisions, then we would think that notwithstanding the provisions contained in Explanation in Section 141, nothing would stand in the way of our doing so. Resort to the principle underlying the Code and not the provision as such in the writ jurisdiction would appear to be justified, if we were not to take a contradictory stand as such also in view of our judgment in the Appeals filed by the Commission. 30. Resort to the principle underlying the Code and not the provision as such in the writ jurisdiction would appear to be justified, if we were not to take a contradictory stand as such also in view of our judgment in the Appeals filed by the Commission. 30. In this case, as already noted, the advertisement was issued in the year 2011; the advertisement was not challenged. Therefore, it is binding on the appellants. We are not persuaded by the attempts by the appellants to get the Appeal dismissed as not pressed or by the attempt to remit the matter back for fresh consideration by the learned Single Judge. In the facts of this case at this length of time, we see no reason to accede to either of the requests. Therefore, we would think that the learned Single Judge clearly erred in constituting a Committee even in this case for the purpose of investigating, whether the qualifications possessed by the appellants are equivalent to ‘O’ Level Certificate in Computer Operations or even higher than that. We have already taken the view that the fact that there were no institutes in sufficient number in the State of Uttarakhand issuing ‘O’ Level Certificate in Computer Operations is no ground to dilute the qualifications fixed by the Authority. Also as far as posts for which ‘O’ Level Certificate in Computer Operations is not required, we fail to see any purpose being served by constituting any Committee. No doubt, this aspect has not engaged the attention of the learned Single Judge. Obviously, the appellants were and now appear to be interested in the posts for which ‘O’ Level Certificate in Computer Operations is mandatory qualification; the other posts appear to be fewer in number. Under the advertisement, the competent Authority is the Board. Having regard to the qualifications, which are fixed, we see no reason why the Board will not be in a position to assess the appellants on the basis of the qualifications, which are required. We see that no purpose will be served also in remitting it back to the learned Single Judge as the learned Single Judge was essentially concerned with the issue of ‘O’ Level qualification. In such circumstances, we would think that there can be no question of constituting a committee and, therefore, the said direction must be set aside in respect of all posts. In such circumstances, we would think that there can be no question of constituting a committee and, therefore, the said direction must be set aside in respect of all posts. In fact, incidentally, we may notice that even the learned Single Judge was not satisfied by the report of the Committee that was constituted by the Court under an interim order, which has taken note of in the judgment. We pose a question as to what would be the fate of yet another Committee report, where perhaps the matter may not improve. For all these reasons, we would think that the judgment of the learned Single Judge cannot be sustained. We, however, take note of the submissions of the learned counsel for the Uttarakhand Technical Education Board that the Board will certainly consider the case of the appellants for the posts, for which they are otherwise qualified, even without the possession of ‘O’ Level Certificate in Computer Operations. We have already noticed that the prayer in the writ petition was only to permit the petitioner to appear in the computer type test. 31. In such circumstances, we dispose of the Appeal as follows: We dispose of the Appeal by setting aside the judgment of the learned Single Judge and directing that the Board will consider the case of the appellants for those posts, for which possession of ‘O’ Level Certificate in Computer Operations is not mandatory and for which the appellants are otherwise qualified. There will be no order as to costs.