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2021 DIGILAW 259 (HP)

Rahul Verma v. H. P. Board of School Education

2021-04-23

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, Judge The petitioner is appellant, who, aggrieved by the order of dismissal of his writ petition, has filed the instant appeal. 2. The facts, as necessary for disposal of the appeal, are that respondent No. 1, i.e. Himachal Pradesh Board of School Education, Dharamshala, vide notification/advertisement dated 21.07.2016 invited online applications from bonafide residents of Himachal Pradesh, for the post of Computer Hardware Engineer on adhoc basis, for a period of six months on contract w.e.f. 22.07.2016. 3. The candidates, who had applied for the written test, were shortlisted and thereafter only six candidates were called to appear in the interview. Respondent No. 2 came to be selected and aggrieved by her selection, the petitioner had filed OA No. 1561 of 2017 before the erstwhile Tribunal and on closure thereof, the petition was transferred to this Court and registered as CWPOA No. 136 of 2019, and was eventually dismissed vide impugned judgment. 4. It is vehemently argued by Mr. K.S. Banyal, learned Senior Advocate, assisted by Mr. Vijender Katoch and Mr. Kunal Verma, Advocates, that the judgment passed by the learned writ Court is contrary to law, inasmuch as, an entirely new case, that was not even set up by the petitioner or official respondent, has been carved out in favour of the private respondent, resulting in dismissal of the petition. 5. We have heard the learned counsel for the parties and have also gone through the material placed on record. 6. The essential qualification for the post in question is as under: “Essential qualification (1) Should have passed 10+2 examination or its equivalent from a recognized Board/University. (2) B.E./B.Tech in Electronic from & telecommunication/I.T. a recognized University with at least 5 years experience in Computer Manufacturing/Maintenance Company or repute. (3) Preference will be given to candidate with M. Tech in Electronic Degree. Desirable qualification Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.” 7. Record reveals that the petitioner and respondent No. 2 possessed B. Tech in Electronic and M. Tech in Electronic, respectively from the recognized University, but it was respondent No. 2, who came to be selected. 8. Desirable qualification Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.” 7. Record reveals that the petitioner and respondent No. 2 possessed B. Tech in Electronic and M. Tech in Electronic, respectively from the recognized University, but it was respondent No. 2, who came to be selected. 8. The case set up by the petitioner was that since respondent No. 2 did not possess the requisite qualification, she could not have been given preference over him being M. Tech in Electronic/I.T., especially when she has no experience in Computer Manufacturing/Maintenance from the company of repute. 9. The learned writ Court on the basis of pleadings of the parties, formulated the following questions: “(i) Whether respondent No. 2 being M. Tech in Electronic/I.T. could have been given preference over the petitioner despite her having no experience in Computer Manufacturing/Maintenance from the company of repute. (ii) Whether respondent/department had any power to relax the condition of experience while selecting respondent No. 2 against the post in question.” 10. The learned writ Court proceeded to dismiss the writ petition on the premise that respondent No. 2 had been selected on the basis of relaxation given by the Recruiting Agency, for which it was duly empowered under the Rules. 11. However, in our considered opinion, reasoning accorded by the learned writ Court is not well-founded and, therefore, not sustainable, reason being, that it was never the case of the employer that Recruiting Agency had accorded relaxation and thereafter on the basis of relaxation, selected respondent No. 2. 12. Even as per respondent No. 2, none of the candidates, who were called for interview, fulfilled the requirement of requisite experience as per the Rules, which is so admitted in the reply filed to the writ petition, more particularly, in para 7. Relevant portion whereof reads as under: “7. As a matter of fact, the record would reveal that none of the candidates called for interview fulfilled the requirement of requisite experience as per the Rules. However, on the basis of performance of the candidates in written test/interview as also the power conferred on Recruiting Agency to relax the requirement of experience in case of a well-qualified candidate for direct recruitment, the name of replying respondent was recommended for appointment.” 13. However, on the basis of performance of the candidates in written test/interview as also the power conferred on Recruiting Agency to relax the requirement of experience in case of a well-qualified candidate for direct recruitment, the name of replying respondent was recommended for appointment.” 13. Therefore, none of the candidates, including respondent No. 2 could have been selected, save and except by exercising the power of relaxation, which too had to be in accordance with law. In absence of any such power being exercised by the Recruiting Agency, respondent No. 2 could not have been ordered to be selected much less appointed. 14. That apart, it is more than settled that even if the power of relaxation is provided under 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. The power of relaxation, if exercised, has to be given due publicity and if this would be necessary to ensure that those candidates, who become eligible due to relaxation, are also faulty; and 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, as held by the Hon’ble Supreme Court in Bedanga Talukdar vs. Saifudaullah Khan & others, (2011) 12 SCC 85 , relevant observations whereof read as under: “29. We have considered the entire matter in detail. 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. 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 No. 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India. 31. In our opinion, the High Court was in error in concluding that Respondent No. 3 had not treated the condition with regard to the submission of the certificate alongwith the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record. In its resolution dated 21-5-2010, the Commission has recorded the following conclusions: “Though Shri S. Khan had mentioned in his letter dated 10122009 that he was resubmitting the identity card with regard to locomotor disability he, in fact, had submitted the documentary proof of his locomotor disability for the first time to the office of the APSC through his above letter dated 10122009. However, after receiving the identity card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process of selection. The Commission while examining the matter in details observed that Shri S. Khan was treated as general candidate all along in the examination process and was not treated as physically handicapped with locomotor disability. The Commission while examining the matter in details observed that Shri S. Khan was treated as general candidate all along in the examination process and was not treated as physically handicapped with locomotor disability. Prior to taking decision on Shri S. Khan it was also looked into by the Commission, whether any other candidate’s any essential document relating to right/benefits, etc. not furnished with the application or at the time of interview but submitted after interview was accepted or not. From the record, it was found that prior to Shri S. Khan’s case, one Smt. Anima Baishya had submitted an application before the Chairperson on 2622009 claiming herself to be an SC candidate for the first time. But her claim for treating herself as an SC candidate was not entertained on the grounds that she applied as a general candidate and the caste certificate in support of her claim as SC candidate was furnished long after completion of examination process.” 32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the 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. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list.” 15. Since the entire premise, on which the learned writ Court proceeded to decide the case, is faulty and erroneous then obviously, the impugned judgment is not at all sustainable in the eyes of law. 16. Accordingly, we find merit in this appeal and the same is allowed. The judgment passed by the learned writ Court is set aside. Since none of the candidates, including the appellant and respondent No. 3 was qualified, therefore, they also have no right to be considered for appointment, despite their names falling in the waiting list. 17. 16. Accordingly, we find merit in this appeal and the same is allowed. The judgment passed by the learned writ Court is set aside. Since none of the candidates, including the appellant and respondent No. 3 was qualified, therefore, they also have no right to be considered for appointment, despite their names falling in the waiting list. 17. The instant appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application(s), if any, also stand(s) disposed of.