Central Administrative Tribunal - Delhi
Manish Panwar vs Gnctd on 24 September, 2024
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Item No. 27/C-5 OA 3619/2022 with OA 247/2023
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 3619/2022
MA No. 3676/2022
with
OA No. 247/2023
MA No. 293/2023
MA No. 294/2023
Order Reserved on: 05.09.2024
Order Pronounced on : 24.09.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
OA No. 3619/2022
1. Ashish Kumar (Roll no. 111401200003)
S/o Devendra Kumar
Age: 29 years
R/o E-236, Indra Gali, East Babarpur,
Shahdara, Delhi-110032
2. Deepak Dabas (Roll no. 111501200048)
S/o. Late Sh. Bijender Singh
Age: 27 years
R/o. H.No - 295, Pana - Seelka,
VPO Barwala, Delhi 110039.
3. Rochak Kumar (Roll no. 111701200005)
S/o Ashok Kumar
Age: 26 years
R/o 454/19 Keshav Nagar, Swarg Ashram Road
Hapur 245101
4. Kuldeep Singh (Roll no. 111401200021)
S/o Vinod Singh
Age: 31 years
R/o, H. No. 89, Street 17, Chanchal Park,
Najafgarh - Nangloi road, New Delhi 110043
5. Dharam Singh Meena (Roll no. 111801200012)
S/o, Babu lal Meena Age, 32 years
R/o, V/p-Bilona Khurd, Tehsil -Lalsot,
District -Dausa, Rajasthan -303503
6. Jatin (Roll no.111401200035)
S/o, Sanjay Gautam
Age, 28 years
R/o, House no J-62, Street number 5,
Shani Bazar road, Shiv Ram Park, Nangloi, Delhi, 110041
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Item No. 27/C-5 OA 3619/2022 with OA 247/2023
7. Ajay Mann (Roll no. 111501200043)
S/o, Surender Singh
Age, 28 years
R/o House no. 208, Khera Khurd, Delhi-110082
8. Parveen Sharma (Roll no.111001100119)
S/o Ram Dev Sharma
Age: 31 years
R/o 1/10757, Street No. 2,
Subhash Park, Naveen Shahdara, Delhi 110032
9. Rakesh Kumar Meena (Roll no. 111101100076)
S/o, Hanuman Prasad Meena
Age, 27 years
R/o, VPO- Buteri, Teh.- Bansur,
Distt.- Alwar (Raj.)Pin- 301402
10. Ankit Sharma (Roll no. 111101100099)
S/o, Suresh Kumar Sharma
Age, 28 years
R/o, 243 Gali no 3 Pratap Vihar Part 1
Kirari Suleman Nagar Delhi 110086
11. Manish Tevatiya (Roll no. 111101100046)
S/o, Ombir Singh Tevatiya
Age, 27 years
R/o, House no. 313, Gali no.25, Block -C1,
Khajuri khas, Delhi 110094
12. Rohit Kumar Sad (Roll no.111001100191)
S/o, Kamal Ram Sad
Age, 28 years
R/o, B-10 Sanjay Colony, Nehru Nagar,
Panipech, Jaipur, Rajasthan 302016
13. Ashwani Pal (Roll no. 111101100058)
S/o, Vishwanath
Age, 27 years
R/o, K-29b, Krishan Vihar, North West, Delhi 110086
14. Sourabh Singh (Roll no.111101100093)
S/o, Krishan Pal Singh
Age, 30 years
R/o, RZB-43 Vijay Enclave, Mahavir Enclave,
Dabri, New Delhi - 110045
15. Seeta Ram Meena (Roll no.111101100180)
S/o, Ram Singh Meena
Age, 30
R/o, Vill-Gadhouli, Teh-Masalpur,
Distt-Karauli, Rajasthan-322241
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Item No. 27/C-5 OA 3619/2022 with OA 247/2023
16. Vivek Yadav (Roll no.111401100045)
S/o, Vinod Yadav
Age, 28
R/o, 235, 54/N, Molarband extn, Badarpur Border,
Delhi-110011
17. Dharmendra Bhardwaj (Roll no. 111101100070)
S/o, Niranjan Prasad
Age, 30 years
R/o, Village Post Lodana Block
Jewar Distt Gautam Budhh Nagar UP
18. Parveen (Roll No. 111501200011)
S/o Ranvir Singh
Age, 31 years
R/o, House No. 393, Ladpur Road,
Village Nizampur, North West Delhi-110081
...Applicants
(By Advocate : Ms. Tamali Wad)
Versus
1. Govt. of NCT of Delhi
Through Chief Secretary,
Delhi Secretary
I.P. Estate, New Delhi - 110002
2. Irrigation and Flood Control Department,
Through Secretary,
Govt. of NCT of Delhi
L.M. Bund, Shastri Nagar, New Delhi - 110031
...Respondents
(By Advocate :Mr. Amit Anand)
OA No. 247/2023
1. Manish Panwar,
Age about 27 years,
S/o. Shri Narender Singh
R/o House No173, Main Road Bhagat Colony,
West Sant Nagar, Near Gopeshwar Nath Mandir,
Kamal Pur Majra Burari, Burari North Delhi-110084
2. Ashish, Aged about 28 years,
S/o Jai Shri Ram,
R/o House, E-1A/34A,
Street nol, East GokalPur, North East Delhi-110094
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Item No. 27/C-5 OA 3619/2022 with OA 247/2023
3. Shadab Ahmad, Aged about 30 years,
S/o ShriSartaz Ahmad
House no 4, Gali no 6, New Brijpuri,
Krishna Nagar, East Krishna Nagar, East Delhi,
Delhi-110051
...Applicants
(By Advocate :Mr. S.M. Arif)
Versus
1. Govt. Of NCT of Delhi
Through its Chief Secretary,
A-Wing, 5 th Floor, Delhi Secretariat,
I.P. Estate, New Delhi
2. Delhi Subordinate Services Selection Board (DSSSB)
Govt. Of NCT of Delhi
Through its Secretary,
FC-18, Institutional Area,
Mangalam Marg, Karkardooma,
Anand Vihar, Delhi, 110092
3. Irrigation and Flood Control Department
Govt. of NCT of Delhi
Through its Secretary,
I. M. Bund, Shastri Nagar, New Delhi-1100031
4. Lt. Governor of Delhi, Raj Niwas
Civil Lines, Delhi - 10054
5. Parveen Sharma, S/o Ram Dev Sharma Age: 31 years
R/o 1/10757, Street No. 2, Subhash Park.
Naveen Shahdara, Delhi 110032
6. Rakesh Kumar Meena
S/o, Hanuman Prasad Meena
Age, 27 years
R/o, VPO- Buteri, Teh.- Bansur,
Distt.- Alwar (Raj.)Pin-301402
7. Ankit Sharma
S/o, Suresh Kumar Sharma
Age, 28 years
R/o, 243 Gali no 3 Pratap Vihar Part 1
Kirari Suleman Nagar Delhi 110086
8. Manish Tevatiya
S/o, Ombir Singh Tevatiya
Age, 27 years
R/o, House no. 313, Gali no.25, Block -C1,
Khajuri khas, Delhi 110094
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Item No. 27/C-5 OA 3619/2022 with OA 247/2023
9. Rohit Kumar Sad
S/o, Kamal Ram Sad
Age, 28 years
R/o, B-10 Sanjay Colony, Nehru Nagar,
Panipech, Jaipur, Rajasthan 302016
10. Ashwani pal
S/o, Vishwanath
Age, 27 years
R/o, K-29b, Krishan Vihar,
North West, Delhi 110086
11. Sourabh Singh
S/o, Krishan Pal Singh
Age, 30 years
R/o, RZB-43 Vijay Enclave,
Mahavir Enclave, Dabri,
New Delhi-110045
12. Seeta Ram Meena
S/o, Ram Singh Meena
Age, 30
R/o, Vill-Gadhouli, Teh-Masalpur,
Distt-Karauli, Rajasthan-322241
13. Vivek Yadav
S/o, Vinod Yadav
Age, 28
R/o, 235, 54/N, Molarband extn,
Badarpur Border, Delhi-110011
14. Dharmendra Bhardwaj
S/o Niranjan Prasad
Age 30 years
R/o Village Post Lodana Block
Jewar Distt. Gautam Budhh Nagar UP
...Respondents
(By Advocate :Mr. Amit Anand)
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Item No. 27/C-5 OA 3619/2022 with OA 247/2023
ORDER
Hon'ble Mr. Manish Garg, Member (J) Since similar question of facts and law is involved and identical reliefs have been sought in the present OAs, they are being disposed of through a common order/judgment. 1.1 In OA No. 3619/2022, the reliefs, as sought for by the applicants, read as under:
"a) Call for the records of the case.
b) Issue an appropriate order and/or direction thereby directing the Respondents to fill up posts of Junior Engineer (Civil)/Junior Engineer (Mechanical) (post code 11/17 & 12/17), in the Department of Irrigation and Flood Control, Government of NCT of Delhi by appointing the applicants who have be shortlisted by DSSSB vide result notice no. 1299 d 25.06.2021 and result notice no. 1326 dated 27.07.2021.
c) On granting prayer (b) above, to direct the Respondent no.2 to forthwith issue appointment letters/ offer of appointment to the applicants for the post of JE (Mechanical/civil) in the I&FC department as the case may be.
d) Pass any other order or direction which this Hon'ble Tribunal thinks fit and proper in the facts and circumstances of the case."
1.2 This Tribunal vide interlocutory order dated 12.12.2022 directed that "Status Quo" be maintained till the next date of hearing. Since then, the interim order has been continuing in favour of the applicants by virtue of the subsequent orders of this Tribunal.
7Item No. 27/C-5 OA 3619/2022 with OA 247/2023 1.3 A Miscellaneous Application, being MA No.312/2023 had been filed by certain persons, seeking impleadment as private respondents in the present OA. The said MA came to be disposed of with following observations:-
"8. The crux of the matter is that the post of JE (C) under Post Code 11/17 has been advertised at the instance of the User Department i.e. I&FC, GNCT of Delhi. It is to be seen whether the degree holders have to be given preference over the diploma holders to the extent of Recruitment Rules?
9. During the course of argument, it had been revealed that a separate OA has been filed by the proposed respondents i.e. OA No.247/2023 [Manish Panwar & Ors.
vs. GNCT of Delhi & Ors.]. The applicants therein/proposed respondents herein have also sought to challenge the action of the respondents ignoring the claim of diploma holders.
10. Since either of the party is likely to be affected/benefitted by the action of the respondents, it would be in the fitness of things to dispose of the instant MA directing the Registry to list both the OAs i.e. OA No.3619/2022 [listed on 28.03.2023] and OA No.247/2023 [listed on 16.02.2023] for hearing and deciding together with a view to avoid multiple proceedings and conflicting decisions.
11. Needless to mention herein that while disposing of the present MA, we have not gone into the merits of either case of the applicants herein/proposed respondents, who are diploma holders and/or degree holders.
12. In view of the above discussion(s), the instant MA stands disposed of with a direction to the Registry to list both the OAs for hearing on 28.03.2023. "
That is how both the OAs are being heard together.
2. Firstly, we are dealing with OA No. 3619/2022. 2.1 On a requisition from the Irrigation and Flood Control Department, Govt. of NCT of Delhi, the Delhi Subordinate 8 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 Services Selection Board (DSSSB) initiated a proposal for selection to 70 posts of Junior Engineer (Civil) and 15 posts of Junior Engineer (Mechanical) during the year 2017. 2.2 The Recruitment Rules governing the post of Junior Engineer prescribed the educational qualification as Diploma in the relevant discipline of Engineering. 2.3 The applicants herein are Degree holders and they participated in the selection examination after a clarification was given by the DSSSB that candidates having qualification higher than a Diploma may also be considered for recruitment to the post of Junior Engineer. They claim that they have been successful in the selection examination and accordingly, in terms of results notified by the DSSSB, offer of appointment should be extended in their favour.
2.4 Ms. Tamali Wad, learned counsel for the applicants has opened her arguments by submitting that the issue of eligibility of candidates possessing higher qualification for a particular post has been carefully considered and decided by a Coordinate Bench of this Tribunal in OA No. 1741/2022 tilted Shubham Chandra Tripathi & Ors. Vs. Delhi Development Authority. She draws close parallel between the facts, subject and the issue this particular OA 9 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 bears with OA No. 1741/2022. Since in identical facts and circumstances the issue of eligibility of a person with higher qualification has already been considered/decided, no useful purpose would be served in keeping this OA pending and in terms of adherence to the principles of judicial propriety, this OA deserves to be decided on the same analogy, learned counsel argued.
2.5 Continuing the arguments, Ms. Tamali Wad, learned counsel for the applicants submits that there is a factual inaccuracy in the statement made on behalf of the respondents wherein they have mentioned that the post of Assistant Engineer in Delhi Development Authority (DDA) is the exclusive preserve of the degree holders in terms of the recruitment rules. Learned counsel placed before us a copy of the said recruitment rules, which were notified on 18.10.2005 and had drawn our attention to Rules 10 and 11 wherein 75% of the vacancies are prescribed for filling up through promotion and 50% of this 75% is for the category from diploma holder with 8 years' service. It has been submitted that in view of the notified rules, the arguments made on behalf of the respondents fall flat. She further submitted that much reliance was placed by the respondents on the judgment of the Hon'ble High Court of J & K in LPA 165 of 2021, pointing out that the facts 10 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 therein have absolutely no relevance or even a remote co- relation with the facts of the instant case. Learned counsel reiterates that the applicants participated in the selection process with success only after a categorical clarification with respect to their eligibility was issued, i.e., that a higher qualification shall be permissible for recruitment to the said post.
2.6 Ms. Tamali Wad, learned counsel for the applicants has highlighted that even prior to requisition and recruitment process, detailed consultations were made by the official respondents and even expert committee opined in favour of the applicants.
(i) Letter dated 19.05.2017 regarding filling up post of Junior Engineer (Civil), reads as under:-
"Please find enclosed herewith the requisition for the post of Junior Engineer (Civil) received from your office vide letter No. 2768 dated 15/03/2017.
It is to inform you that during the scrutiny of the requisition following discrepancies have been observed:-
1. Each page of proforma 001 has not been signed by the competent authority.
2. It may also be clarified that whether the candidates having higher qualifications such as degree in Civil Engineering will be considered eligible for this post or not.11
Item No. 27/C-5 OA 3619/2022 with OA 247/2023 In the view of above, the requisition is hereby returned (in original) with request to re-submit the fresh requisition after removing the above said discrepancies at the earliest so that the same may be included in ensuing advertisement.
This issues with the prior approval of Chairman, DSSSB."
(ii) The Note Sheet dated 28.06.2017 reads as under:-
"As the Lord of Secretary (I&FC) to Chairman DSIIC who is also the Chairman of ICCIL as that the matter could be expedited
140. Further Lieutenant has also taken up the matter of recruitment of JES through DSSSB but the Board vides their latest communication (P-276/C) has sought the following clarifications:-
(i) Each Page of Performa 001 has not been right by the complaint ......
(ii) It may also be clarified that matter the candidate having higher qualifications, such as Degree in Civil Engineer not be considered alright for this part or not
141. As regards point (1) above it is submitted that needful would be done at the lord of Chief Engineer but as regard to point no. (II) above, it is submitted that the Service Department in their opinion in the TNI of LOC can approve of ..... is placed at P/A, has clearly suggested that the Officials with Higher Qualifications is also eligible for appointment as LDC Grade-IV basis. Further as per RRs for a promotion of AE, it is also stipulated that both the JEs having Diploma in Civil (Mechanical Engineer) with 7 years regular service as JE and JEs both Degree in Civil/ Mechanical with regular services of officer as JEs are eligible for promotion as A.E. therefore as candidate having higher qualification are also eligible to appear for examination of AEs.
142. However our none area of centers is that - RRs of the post of JEs are ... to be finalized with reference to VIth & VII Pay Commission Recommendation
143. In view of the above file is submitted for kind perusal and approval of 400: -
(i) To ... a D.O. Letter to Chairman DSIIDC is also the Chairman of ISCIL to expedite the recruitment of 70 JE (58+12) in the Department an ...... basis- the regularization of which is pending with ICSIL, Since Sept, 2016, Draft D.O. Letter is placed opposite 12 Item No. 27/C-5 OA 3619/2022 with OA 247/2023
(ii) Affidavit of Secretary (I&FC) to convey the clarification Point
(ii) of the DSSSB letter dated 19.5.2017 (P-276/C) that the candidate having higher qualification such as degree in Civil Engineering shall also be eligible to appear in the JEs examination.
(iii) Proforma Page will be signed at the level of CE (1&FC)
(iv) RRs for the part of JE, as almost at the final of amendment in pursuance to VIth Pay Commission recommendation since, Service Department has primarily agreed to the proposal request for one query. I am of which is plead at F/B. So be may go ahead with the recruitment process with the existing RRs through DSSSB provided secretary (I&FC) approvals.
144. File is submitted for kind perusal and approval of the proposal given in sub para (i) to (iv) of Para 143 on page 140/N- only. D.O. Letter has already been required by the Secretary (I&FC) and received.
Sd/- 28.06.2017 CE (I&FC) Sd/21.6"
(iii) Letter dated 24.07.2017 regarding requisition for filling up the 15 posts of Junior Engineer (Mechanical), reads as under:-
"With reference to your office letter No. F.1(322)/DSSSB/P&P/2016/8075 dated 12-04-2017 on the subject cited above, I am directed to furnish the following compliance/clarification as desired by your office in your office letter under reference :-
1. Performa No. 001 having signature of the Competent Authority on the each page of the Performa.
2. The candidates have higher qualifications, such as degree in Civil Engineer may also be considered for recruitment for the post under reference.
3. All the papers, which were sent earlier, are hereby again enclosed herewith."
(iv) Letter dated 30.08.2017 regarding requisition for filling up 70 posts of Junior Engineer (Civil) and 15 posts of Junior Engineer (Mechanical), reads as under:- 13
Item No. 27/C-5 OA 3619/2022 with OA 247/2023 "I am directed to invite your attention to the advertisement bearing no 02/17 released by DSSSB for the recruitment of JE (Civil) Mechanical in the I&FC Department in reference to requisition of this department sent vide letter no 3(3)/2015/JE(C&M/Estt /CE(18FC)/2768 dated 15 03 2017 and to inform you that some of the candidates/ applicants have intimated that by applying online the link is only for the Diploma holder candidates but no such link has been provided by the Board for the candidates/ applicants who are Degree holders and interested to apply for the above referred posts.
The Department has also clarified to the Board vide letter of even no dated 24 07 2017 (copy enclosed) that the candidates having higher qualification such as Degree in Civil Engineering are also eligible for the recruitment to the above referred posts in the absence of link for these candidates/ applicants i e. Degree in Civil Mechanical Engineering it is not possible for these candidates/ applicants to apply and thereby, they are deprived of this opportunity.
It is, therefore, requested that a suitable link in the online portal of DSSSB may kindly be provided for the candidates/ applicants who are having Degree in Civil/ Mechanical Engineering, so that, they can also apply for the above referred posts. Further, the last date to apply online for these posts may also kindly be extended suitably by the DSSSB.
This issues with the prior approval of Secretary (I&FC)."
(v) The operative portion of the Technical Committee Report dated 26.10.2021, constituted to examine the case of recruitment of JE (Civil & Mechanical) through DSSSB, reads as under:-
"In the above-mentioned order, the committee has been directed to examine conditions as mentioned hereunder:
1. As to whether the condition of four (04) years Degree Course will be considered to be with higher qualification than three (03) years Diploma Course.
2. To suggest the treatment of the qualification of the recommended candidates having degree in respective field.
3. Whether the candidate with four (04) years degree course will be suitable for the work and responsibility (Nature of Duties) of the post of JE (Civil & Mechanical).
xxx xxx xxx 14 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 The matter has been examined and the Committee in respect of points 1, 2 and 3 above, is of the view that:
i) In the instant case examination has already been conducted by DSSSB and the list of provisionally selected candidates have already been recommended. There is hardly any relevance of examining at this stage as to whether a four (04) year degree course is considered to be higher qualification than a three (03) year diploma course. Moreover as per the general prevalent practice and perusal of the correspondence between DSSSB and I&FC Deptt in respect of the said recruitment, that is available on record, it can be construed that four (04) years Degree Course will be considered as higher qualification than three (03) years Diploma Course. Nevertheless, if the Administrative Section still desire further clarification on this issue, it is suggested that the same may be obtained from educational regulatory authority like UGC or AICTE etc, or Reputed Universities/Institutes offering such courses.
ii) The committee cannot comment on the treatment of qualification of the recommended candidates having degree in respective field other than as per point (i) above. The Administration may decide upon such treatment based upon the RRs, requisition sent to DSSSB and other correspondences which have already taken place between DSSSB and I&FC Deptt. and all that are integral part of the office record. The committee is of the opinion that such exercise should have been undertaken before the conduction of examination and it is too late to comment on the matter.
iii) All the candidates who have been provisionally selected by DSSSB have qualified the examination conducted by DSSSB on the subject concerned as per the qualification prescribed in the Recruitment Rules for the post (refer point no. 3 "Syllabus" of Advertisement 02/17). The committee is of the view that suitability of any candidate who have already qualified in the examination conducted by DSSSB, at this stage cannot be questioned.
The report of the committee is hereby submitted."
(vi) The operative portion of Note dated 24.01.2022, as annexed in Annexure A-19, reads as under:-
"45. Whereas, as submitted above, DSSSB has recommended candidates with higher qualifications. In background of this position, the department has sought advice of the Services Department in para 38 of its notings on page 11/N stating as under:-
"It would be prudent to seek the advice of the services Department, as to take further course of action in the appointment process as done earlier in the case of candidate recommended for the post of Grade-15
Item No. 27/C-5 OA 3619/2022 with OA 247/2023 IV(DASS)/LDC having higher qualification than what was stipulated In the relevant RRs. Since, the present mater also involves the candidates with degree in Civil/Mechanical/Electrical engineering which is higher qualification than Diploma in Civil/Mechanical/Electrical engineering, which is higher qualification than Diploma in Civil/Mechanical/Electrical Engineering from a recognised University/Institution as given in the RRs."
46. In this connection, parallel between recruitment to the post of LDC and the post of JE cannot be drawn as the recruitment rules for the post of LDC prescribed 10+2 as "minimum qualification" (copy placed opposite, F/'A'). Whereas in the Instant matter, the existing RRs of the post of JE In I&FC Department, prescribed diploma as "essential qualification". However, the fact remains that on query of DSSSB, Department took a decision to allow candidates with higher qualifications i.e., degree in Civil Engineering/Mechanical Engineering to be DSSSB conducted the Engine On the basis of the same, the examination and declared the result of the candidates including those who possessed degree qualification.
47. However with regard to Law position, it appears that Hon'ble Supreme Court verdict dated 07 Apr 2021 in the case titled "Puneet Sharma & Ors etc vs Himachal Pradesh State Electricity Board Ltd. & Anr. etc" on the case bearing No. Civil Appeal No (S). 8318-1322 OF 2021 (Arising out of SLP (C) Nos. 10533-10537 of 2020) addresses issue of consideration of candidates with qualification of degree in engineering for the post of Junior Engineer.
48. Relevant parts of judgement as enumerated hereunder, shows that Hon'ble Supreme Court has permitted Degree Holders to be considered for the post Junior Engineers, which was advertised for Diploma Holders:-
33. ....... This clarifies beyond doubt that even for the post of Junior Engineers, those individuals holding higher qualifications are eligible to compete. In the opinion of this Court, though the amending rules were brought into force prospectively, nevertheless, being clarificatory, they apply to the recruitment that is the subject matter of the present controversy. Such a position (i.e. clarificatory amendments 21 operative retroactively, despite their enforcement prospectively) has been held in several previous judgments of this court. In Zile Singh v. State of Haryana15 this Court examined the various authorities on statutory interpretation and concluded:
(SCC pp. 8-9, paras 13-14) "13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the Rule in general is 16 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only--'nova constitution futuris formam imponere debet non praeteritis'-- a new law ought to regulate what Is to follow, not the past.
(See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at page 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary Implication especially In a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., page
440).
14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is 'to explain' an earlier Act, It would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear e meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (Ibid., pp. 468-69)."
34. In Vijay v. State of Maharashtra 16, this court held as follows:
"12. The appellant was elected in terms of the provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by a statute. It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The appellant does not and cannot question the competence of the legislature in this behalf.
35. Likewise, in Manish Kumar v Union of India17, it was held that: "Declaratory, clarificatory or 17 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 curative Statutes are allowed to hold sway in the past. The very nature of the said laws involve the aspect of public interest which requires sovereign Legislature to remove defects, clarify aspects which create doubt. The declaratory law again has the effect of the legislative intention being made clear. It may not be apposite in the case of these Statutes to paint them with the taint of retrospectivity.
36. It would also be relevant to notice that in the appeal, it has been specifically averred that the HPSEB has been making contractual appointments from amongst degree holders in the cadre of Junior Engineers, and that an order was issued upon the recommendation of the Screening Committee, which through its meeting held on 11.04.2018 had cleared the regularization of 28 such candidates. These degree holders are equivalent to Junior Engineers, and had been working for periods ranging between 4 to 6 years. A copy of that order has been produced as Annexure P-10 in the Special Leave Petition.
37. The considerations which weighed with this court in the previous decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this case. This court's conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or post-graduation or B.Ed. degrees, were not considered eligible for the post of primary or junior teacher. In a similar manner, for "Technician-III" or lower post, the equivalent qualification for the post of Junior Engineer l.e. diploma holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next In hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub-quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the rule makers not to exclude degree holders from consideration for the lower post of Junior Engineers.
38. As noticed previously, in addition to the above considerations, an amendment to the rules was 18 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 made on 03.06.2020 declaring that those with higher qualifications are also entitled to apply or be considered for appointment. This amendment was brought in to clear all doubts and controversies and, in that sense, the amending provisions should be deemed to have been inserted from Inception.
39. For the foregoing reasons, these batches of appeals by the degree holders have to succeed. The respondent HPSEB Is directed to process the candidature of all applicants, including the degree holders who participated, and depending on the relative merits, proceed to issue the final selection list of all successful candidates, after holding interviews, etc. The Impugned judgment is accordingly set aside; the appeals are allowed and writ petition is allowed partly, in the above terms, without order on costs."
49. Perusal of the facts of the case as placed by the Department on its file shows that these are similar to the above referred case decided by Hon'ble Supreme Court. The Department may therefore examine and process the matter further keeping in view aforesaid judgement. However, the Department will have to amend existing RRs of the post so that such issue does not arise in future.
50. The Department's file bearing No. F-3(3)/2021/New JE Rect./Estt./CE(I & FC) (CD No. herewith. 101674313) is returned.
51. This issues with the approval of Competent Authority."
3. On the other hand, Mr. Amit Anand, learned counsel for the respondents emphatically submits that recruitment and subsequent appointment is to be made strictly in accordance with relevant Recruitment Rules. 3.1 He further submits that in the instant case, the Recruitment Rules mention only Diploma as the educational qualification and not a Degree. He draws a distinction between the facts of the OA No.3619/2022 and OA No. 1741/2022 being relied upon by learned counsel for the applicants, submitting that in the matter of DDA, one 19 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 of the factors, which guided the Tribunal in passing the order, was the action initiated by the DDA for amendment of Recruitment Rules to the post of Assistant Engineer, which, at present, exclusively reserves the right of Degree holders but in the proposal for amendment, Diploma holders were also being given an opportunity for promotion to the post of Assistant Engineer. Accordingly, the Tribunal perhaps thought that reciprocity required Degree holders to participate for the post of Junior Engineer. He has also drawn our attention to a judgment of Hon‟ble High Court of Jammu & Kashmir in LPA No. 165/2021 titled Qazi Gousia Jeelani vs. Mehraj Ud Din Najar and ors. decided on 08.07.2022. The issue before the Hon‟ble High Court was also identical to the present one, learned counsel argued. He further submitted that the Hon‟ble High Court had also discussed the judgment of the Hon‟ble Apex Court in Puneet Sharma and ors. vs. Himachal Pradesh State Electricity Board Ltd. and another, 2021 SCC Online SC 291. The Hon‟ble High Court had held that a higher qualification cannot be considered unless it is a prescribed qualification in terms of the Recruitment Rules. The Hon‟ble High Court had termed the action of the Board in not entertaining the applicants with higher qualification as correct reiterating that prescribed qualification has to be 20 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 interpreted strictly as laid down in the recruitment rules and not otherwise.
3.2 The learned counsel for the applicants, besides relying upon the aforesaid case laws, have also cited the following case laws:-
High Court:
(i) Judgment dated 18.07.2016 passed by the Hon‟ble High Court of Judicature at Bombay Bench at Aurangabad in W.P.(C) No. 2908/2016 and W.P. (C) No. 2776/2016.
(ii) Judgment dated 11.11.2021 passed by Hon‟ble High Court of Madhya Pradesh in Writ Petition No. 24112/2021 in Ku. Arti Dahayat vs. State of M.P.;
(iii) Judgment dated 28.06.2024 passed by Hon‟ble High Court of Orissa at Cuttack in Writ Petition No. 386 of 2013 in Saritarani Prusti and another vs. State of Odisha & Others;
Tribunal:
(iv) Judgment dated 01.12.2022 passed by a Coordinate Bench of this Tribunal in OA No. 1741/2022 with 11 other OAs; and 21 Item No. 27/C-5 OA 3619/2022 with OA 247/2023
(v) Order dated 20.02.2023 passed by a Coordinate Bench of this Tribunal in MA No. 312/2023 in OA No. 3619/2022.
3.3 The learned counsel for the official respondents besides relying upon the aforesaid case laws have also cited following case laws:-
Apex Court:
(i) Judgment dated 05.03.2003 passed by Hon‟ble Apex Court in Civil (Appeal) No. 3897/2001 in the matter of Yogesh Kumar & Ors. vs. GNCTD & Ors.
(ii) Judgment dated 19.05.2023 passed by the Hon‟ble Apex Court in Civil Appeal No. 3062/2023 arising out of SLP (C) No. 12635 of 2020 titled the State of Karnataka & Ors. vs. Smt. Bharathi S. High Court:
(iii) Judgment dated 27.04.2022 passed by Hon‟ble High Court of Judicature at Allahabad in a batch of writs titled Abhishek Sharma and three others vs. State of UP and two others., and 22 Item No. 27/C-5 OA 3619/2022 with OA 247/2023
(iv) Judgment dated 08.07.2022 passed by Hon‟ble High Court of Jammu & Kashmir and Ladakh at Srinagar in LPA No. 165/2021 with CM No. 7797/2021 in the matter of Qazi Gousia Jeelani vs. Mehraj Ud Din Najar and Ors.
and
(v) Judgment dated 30.01.2023 passed by Hon‟ble High Court of Judicature at Bombay in Writ Petition No. 8568/2022 in the matter of Milind Shantilal Rathod & Ors. vs. State of Maharashtra & Anr.
4. Now, we come to the facts of OA No. 247/2023:
4.1 This OA has been directed to be heard along with OA No. 3619/2022 vide record of proceeding dated 20.02.2023 in MA No. 312/2023.
4.2 During the course of the hearing, Mr. S.M. Arif, learned counsel for the applicants in OA No.247/2023 pointed out that there were a total of 70 vacancies, which were meant to be only for the diploma holders.
4.3 The advertisement was issued in the year 2017 and the results were notified in the year 2021. Out of the 70 candidates, 47 were diploma holders and 23 were degree holders. He further submits that the applicants in OA No.247/2023 were at Sr. Nos. 4, 5 & 7 as per their merit position in the reserve panel in OBC category.23
Item No. 27/C-5 OA 3619/2022 with OA 247/2023 4.4 The applicants in this OA too had participated in the selection process initiated by the DSSSB on a requisition of Irrigation and Flood Control Department, Govt. of NCT of Delhi during the year 2017. Their grievance is that Degree holders have been allowed to participate in the selection process, whereas they are not eligible to hold the said post in terms of the educational qualification set-forth in the Recruitment Rules. The permission accorded to the Degree holders to participate in the examination is to the detriment of bona fide and genuine interests and right of the applicants.
4.5 Accordingly, the applicants herein seek quashing and setting aside of the decision of the respondents permitting the Degree holders to participate in the selection process. The reliefs prayed for vide para 8 of the OA read as under:
"1. Quash and set aside the Order dated 06.10.2022 passed by the respondent no. 2 herein and direct the respondents to appoint the applicants on the post of Junior Engineer (Civil) in the Office of Respondent no. 3 herein.
2. Issue an appropriate direction/order and/or there by directing the respondent no. 2 to extend the time period of the select panel/waiting list qua the post code 11/17, which according to them was valid only upto 26.07.2022, however, since the appointment process is still going by the respondent no. 2, therefore it cannot be said that the validity of Waiting Listed Candidates is over.
3. Issue an appropriate order and/or direction thereby directing the respondent no. 2 to disclose/draw the names of the Select Panel/Waiting List Candidates on the official website/portal of the respondent no. 2.
4. Issue an appropriate order and/or direction thereby directing the respondent no. 2 to escalate the appointment 24 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 process and call the Waiting List Candidates on priority and fill-up the vacant Posts expeditiously, so that, the applicants would have chance to be appointed qua the said Post code 11/17.
5. Quash and set aside the Impugned Result Notice No. 1326 dated 27.07.2021 to the extent that the candidates possessing the "Higher Qualification i.e. Degree in Engineering" have been shown selected Provisionally to the Post of Junior Engineer (Civil), which is not only contrary and in violation to the Essential Academic Qualification as prescribed in the Advertisement No. 02/17 i.e. "Diploma in Civil Engineering from are cognized University/Institution' but is also inter alia contrary to the Recruitment Rules for the Post of Junior Engineer (Civil) in the Irrigation & Flood Control Department (In short I&FC Deptt.) under the Government of NCT Of Delhi.
6. Direct respondent to re-draw the Select/Merit list considering only the Diploma Holders, which is the Eligibility criterion for Educational Qualification as per the Advertisement and prevailing Recruitment Rules for the Post of Junior Engineer (Civil) in each category and thereafter issue the appointment letters to the applicants as per their merit position.
7. Direct the Respondents, not to carry forward the vacancies of the year 2017 for the Post of Junior Engineer (Civil) to the next year, against which the applicants have been shortlisted.
8. Pass any other further order(s) or direction(s) as this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case be passed in favour of the applicants and against the respondents with all consequential benefits."
4.6 M.A.602/2023 in OA No.247/2023 was filed seeking amendment in the prayer clause. The said MA was disposed of vide record of proceedings dated 27.02.2023, which read as under :-
"At the outset, learned counsel for the applicant states that the wishes to withdraw the present MA with liberty to file a comprehensive MA for amendment of the OA. The same is allowed.
Accordingly, the MA stands dismissed as
withdrawn with liberty as prayed for."
25
Item No. 27/C-5 OA 3619/2022 with OA 247/2023
4.7. The records would reveal that even though liberty was granted to the applicants in OA No.247/2023 to prefer a comprehensive MA for amendment, no such application has been filed.
4.8. It has also been contended on behalf of the applicants that the result of the subject advertisement was declared on 27.07.2021. Learned counsel contends that the first offer of appointment was issued on 10.02.2022, i.e., almost after 7 months. He has further contended that the total number of posts advertised were 70, out of which 69 were declared successful, wherein 22 were having degree, which is the subject matter of OA No. 247/2023. Out of the remaining 47, 19 have not joined. The applicants belong to OBC category and purportedly, as per the information derived by the learned counsel for the applicants, the Applicant No. 1 stands at S.No. 6, Applicant No. 2 stands at S.No. 4 and Applicant No. 3 stands at S.No. 7 in the purported wait list which is not in the public domain. He further makes a submission that the user department has made a requisition for four dossiers out of 19 dossiers on 26.07.2022 and thereafter, another letter was sent on 29.08.2022 for requisition of dossier. Thereafter, the first reminder was sent on 09.09.2022 and the second reminder was sent on 14.10.2022. The waitlist panel has not been 26 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 operated by the Board on the premises that validity period of one year has expired from the date of declaration of result as per extant rules governing the operation of the wait list. On a previous date of hearing, query was put forth by this Tribunal to the counsel for the respondents as to when the last candidate joined the services of the respondents. The answer given was that on 08.07.2022, the candidate to the post of Junior Engineer (Civil) joined and on 14.07.2022, the candidate to the post of Junior Engineer (Mechanical) joined. The present advertisement was issued on 07.08.2017 and its closing date was 15.09.2017, wherein the results were declared on 27.07.2021.
4.9. For the purpose of adjudication pertaining to operation of waitlist, we called for the original file of the Board. As per the original file, S.No. 5 of the Office Note dated 20.07.2021 mentions the closure of the recruitment process shall be subject to disposal of pending cases for the Post Code 11/17. On instructions, the respondents pointed out the same pursuant to communication dated 27.07.2021.
4.10. Mr. S.M. Arif, learned counsel for the applicant has also drawn attention letter dated 27.09.2022 regarding furnishing of revised reply in respect of RTI application ID 27 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 No. 62957 under Right to Information Act 2005 for the post code 11/17 sought by the Applicant No. 3, wherein the marks of last selected candidates in OBC category is 110.14 and Applicant No. 3 obtained 106.21 marks and he was placed at S.No. 4 in the waitlist panel. However, such waitlist panel expired on 26.07.2022. He further contends that out of 19 persons, who did not join, 8 persons belong to OBC category and if the requisition sought by the user Department was accepted within the time frame, the applicants were very much within the zone of consideration.
4.11 The issue to be adjudicated in the present matter is that whether the respondents failed to carry out the statutory duty insofar as timely declaration of result and whether there is a considerable delay of more than 7 months and whether by virtue of it, the same would lead to an extension of the validity period of operation of waitlist panel. Alternatively, it has to be seen when the issue is pending litigation in the Court cases, what would be the cut off date for the validity of the waitlist panel.
4.12. In the earlier round of litigation, when the present applicants had preferred an OA No. 2510/2020, the said matter was disposed of by this Tribunal directing the respondents to dispose of the representation of the 28 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 applicants herein wherein it has been specifically averred by the Board contending that no more e-dossiers were returned by the User Department after cancellation of candidature of any candidate on the ground of holding degree instead of diploma. Learned counsel further submits that had there been no dispute for the degree holders vis-à-
vis diploma holder, the diploma holder would have led the march and got the appointment at the initial stage itself and therefore, there was no occasion for them to come in the waitlist panel.
5. Mr. Amit Anand, learned counsel for the respondents had produced the original records of the case. On perusal of the same, it is revealed that there is nothing on record to show as to how the requisition prior to closing date of validity of panel i.e. 26.07.2022 has been dealt with by the Board. Learned counsel contended that the reserve panel policy dated 13.06.2013 and 27.06.2018 was in place prior to the revised policy dated 06.08.2021. The reserve panel could not be operated due to pendency of issue of determination of educational qualification i.e. diploma holder and degree holders.
5.1 Drawing strength from the averments made in the counter affidavit, Mr. Anand, learned counsel, further contends that as per the Rule position as well as the settled 29 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 proposition in catena of judgments of Hon‟ble Apex Court and the Hon‟ble High Court, the validity period is from the date of declaration of the result and no other meaning can be attributed to it by the Tribunal.
5.2 From the perusal of the original file, it also reveals that on 09.02.2022, the diploma holders were allowed to join immediately. However, for the degree holders, the regularization is required to be sought from the Hon‟ble LG to get the needful done immediately. Accordingly, the offer of appointment was immediately issued on 10.02.2022. It is contended that because of the controversy prevailing qua the degree holder vis-a-vis the diploma holders, five to six months were delayed.
6. Having heard the learned counsel for both the parties and perused the pleadings available on record, we would draw the following analysis:
7. ANALYSIS :
A. OA NO.3619/2022
HISTORY OF ENINGEERING COURSES IN INDIA :
7.1 One would ponder as to why we are dwelling upon such history. We would make an endeavor to deal with the reasoning in later part of the judgment.30
Item No. 27/C-5 OA 3619/2022 with OA 247/2023 7.2 In 1847, India‟s first engineering college, Thomason College of Civil Engineering (now called IIT Roorkee) was established at Roorkee in present-day Uttarakhand State for imparting training of Civil Engineers. It was followed by College of Engineering, Pune's precursor, The Poona Engineering Class and Mechanical School in July 1854 (Now COP Technological University (COEP Tech). 7.3 The Institution of Engineers (India) [IEI] is the largest multi-disciplinary professional body of engineers, established in 1920 with its Headquarters located in Kolkata and incorporated under Royal Charter on 9th September, 1935 by the then His Majesty of King George V. The Royal Charter endowed the Institution with the responsibility to promote the general advancement of engineering amongst its members and persons attached to the Institution. After Independence, the Institution is a "Body Corporate" protected under Article 372 of the Constitution of India. The Institution of Engineers (India) is administered by a National Council with the President as its Head.
7.4 The Academic Programme of the Institution mainly consists of Sections „A & B‟ Examinations, popularly known as the AMIE Examination.
31Item No. 27/C-5 OA 3619/2022 with OA 247/2023 "SECTION „A‟ & „B‟ EXAMINATION As notified by the Government of India, passing of Sections A & B Examination of the Institution is equivalent to a degree in engineering in the respective discipline. The qualification is accepted by the central academic organizations, e.g. IITs and also by central recruitment agencies, e.g. UPSC. These examinations are mainly opted by:
The diploma engineers for their career advancement The engineering graduates in a particular discipline, who want to obtain engineering degree qualification in some other discipline for career advancement.
SECTIONS A AND B EXAMINATION CONSIST OF:
Section A (NON-Diploma): Applicable for Technician Members of IEI only Section A (Diploma): Applicable for Senior Technician Members of IEI only Section B: The Technician and Senior Technician Members of IEI who have completed Section-A or exempted from Section-A in their respective Scheme are eligible to appear in Section B Examination.
The Corporate Members of IEI (FIE / MIE / AMIE) may also appear in Section B examination after registration in Section B directly in any discipline after Section-B registration provided that member has not completed section B examination of IEI or Graduate degree in engineering in the same discipline earlier."
7.5 The University Grants Commission (UGC) came into existence on 28 December 1953 and became a statutory Organization of the Government of India by an Act of Parliament in 1956, for the coordination, determination 32 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 and maintenance of standards of teaching, examination and research in university education.
7.6 All India Council for Technical Education Act, 1987 (52 of 1987) w.e.f 23.12.1987 - An Act to provide for the establishment of an All India Council for Technical Education with a view to the proper planning and co-
ordinated development of the technical education system throughout the country, the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. All institutes, universities engineering colleges as well as government or privately funded engineering colleges affiliated to the universities, must obtain an approval from the AICTE which licenses and regulates the institutes, not the individuals or practitioners, which offer the engineering and/or technical education. IITs, IIITs and NITs, etc. do not require approval from UGC or AICTE as these are created as the autonomous organisations through the Act of Parliament, hence they have full autonomy to decide their teaching standards, course design, curriculum, fee, etc. Engineering colleges run by the Central Universities, which were not created as the autonomous institutes along 33 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 the lines of IITs, IIITs or NITs, must also seek AICTE approval.
7.7 The National Board of Accreditation (NBA) - India was established by the AICTE under Section 10 (u) of AICTE Act, in the year 1994, in order to assess the qualitative competence of the programs offered by educational institution from diploma level to post - graduate level in engineering and technology, management, pharmacy, architecture and related disciplines, which are approved by AICTE. NBA came into existence as an independent autonomous body with effect from 7th January 2010.
8. In the present case, the respondents have vehemently contended that as per the RRs of user department, the word "necessary" is synonym to "essential", therefore, there is nothing wrong in usage of word "essential" in subject advertisement. There is no illegality for usage of synonym words, both are inter-changeable and implied as well. In the event a different meaning is given, the same would result in miscarriage of justice and lead to absurdity and contrary to RRs. Hence, the degree holder cannot be offered appointment de hors the Rules. There is no amendment to RRs till date; as such no relaxation can be given.
34Item No. 27/C-5 OA 3619/2022 with OA 247/2023 8.1 The RRs for the subject posts have been notified on 03.02.1966, which read as under :-
"7. Educational and other qualifications required :-
Diploma in Civil/Mechanical/Electrical Engineering from a recognized University/Institution."
8.2 The RRs notified as on 22.02.1984 read as under:-
"Delhi Administration Delhi (Service II Department) Dated the 22/02/84 Notification No F.2(40)/83-511- in exercise of the powers conferred by the proviso to article 309 Constitution read with the Govt. of India Ministry of Home Affairs, Notification No. F-27/59-Hin (i) dated the 13 July 1959, the Administrator of the Union the Schedule annexed to this Administration's Notification No. F3/12/65- Dpptts (D), dated 03.02.66, as amended from time to time containing the rules regarding method of recruitment and "educational qualifications necessary for appointment" to various Group 'C' posts in the Flood Control Department, Delhi Administration, Delhi, namely:
Amendment In the said schedule against Sr. No. 1(Section Officer (Civil)/Section Officer (Mechanical)/Supervisor), for the existing entries under Col.1 (No. of posts), 2. (No. of Posts), 3(Classification), 4(Scale of pay), 6 (Age limit for direct recruits) and 7 (Educational & other qualifications required for direct recruits), the following shall respectively be sub-situated, namely:
Column 1 Junior Engineer (Civil)
Junior Engineer (Mechanical)
Junior Engineer (Electrical)
Column 2 Sixty Four
Column 3 "General Central Service
Group 'C' Non-Gazetted
Non-Ministerial"
Column 4 Rs. 425-15-500, Rs. 15-5(0-20-700)
Column 6 18-25, Years
(Relaxable for Govt. Servants upto 55 years) Column 7 Diploma in Civil/Mechanical/Electrical Engineering from a recognized University Institution."35
Item No. 27/C-5 OA 3619/2022 with OA 247/2023 8.3 The respondents are taking aid of word "educational qualifications necessary for appointment" used in RRs notified as on 12.06.1986, which reads as under:-
"Delhi Administration Delhi (Service II Department) Dated :- 12.06.1986 Notification No F.2(12)/86- S.II- in exercise of the powers conferred by the proviso to article 309 Constitution read with the Govt. of India Ministry of Home Affairs, Notification No. F-27/59-Hin (i) dated the 13 July 1959, the Administrator of the Union Territory of Delhi is pleased to make the following amendments in the Schedule annexed to this Administration's Notification No. F3/12/65-Dpptts (D), dated 03.02.66, as amended from time to time containing the rules regarding method of recruitment and "educational qualifications necessary for appointment" to various Group 'C' posts in the Flood Control Department, Delhi Administration, Delhi, namely:
Amendment In the said schedule against Sr. No. 1(Jr. Engineer (Civil)/Jr. Engineer (Mechanical)/Jr. Engineer (Electrical), for the existing entries under Col.2 (No. of posts), Col.5. (Whether age & educational qualifications prescribed for direct recruits will apply in the answ of promotes), Col.10 (Method of rectt. Whether by direct rectt. Or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods), Col.11 (In case of rectt. By promotion/deputation/transfer, grades from which promotion/deputation/transfer to be made), and Col.12 (If a DPC exists, what is its composition), the following shall respectively be substituted, namely:-Col.No. 2 232
Col.No. 5 Non-selection
Col.No. 8 Age : No
EQ: To the extent mentioned in Col.11
Col. No. 10 By direct rectt. - 95%
By promotion failing which by direct rectt.-5% Col.No. 11 Promotion From amongst Surveyors possessing the educational qualification prescribed for direct recruits with 5 years regular service in the grade on Surveyor with 15 years of regular service in the grade.
Col.No.12 Yes
Group 'C'
DPC
By order and in the name of the
Administrator of Union Territory
of Delhi."
36
Item No. 27/C-5 OA 3619/2022 with OA 247/2023
8.4 As on 26.10.2004, following amendments were
notified :-
IRRIGATION AND FLOOD CONTROL DEPARTMENT NOTIFICATION Delhi, the 26th October, 2004 No. F. 46(427)/99-Estt/CE(I&FC)/577. In exercise of the powers conferred by the proviso to article 309 of the Constitution read with the Government of India, Ministry of Home Affairs notification No.F.27(59)/Him(i) dated the 13 July, 1959, the Lt. Governor, Delhi is pleased to make the following amendments in the Schedule annexed to Chief Commissioner's notification No.F.3/12/65-Apptts. (B) dated 03.02.1966, published at Page 30 to 33 of the Delhi Gazette (Part-IV) dated the 24th Feb. 1966 and subsequent amendments vide notification No.F.2(40)/83-S.Il dated 22.2.84 & No.F.2(12)/86-S.Il dated 12.6.86, as amended from time to time, containing rules regarding the method of recruitment and "educational qualifications necessary"
for appointment to various Group 'C' posts In the Irrigation & Flood Control Department, Govt. of NCT of Delhi, namely:-
AMENDMENT In the said schedule against Sl.No.1 (Jr. Engineer (Civil)/Jr. Engineer(Mechanical)/Jr. Engineer (Electrical) for the existing entries under Col. No.2 (No. of posts), Col. No.4 (scale of pay), Col. No.5 (Whether selection by merit...), Col. No.6 (Age limit for direct recruits...), Col. No.7 (Whether benefit of added years of service...), Col. No.8 (Now 09) (Whether age & Edn....), Col. No. 10 (Now 11) (Method of recruitment) and Col. No.11 (Now 12) (in case of recruitment by promotion..), the following shall respectively be substituted, namely:-
Column 2 224*
Junior Engineer (Civil) 190
Junior Engineer(Mech./Elect.) - 34
Subject to variation dependent on work.
Column 4 Rs.4500-125-7000
Column 5 Selection
Column 6 18 to 27 years (Relaxation as per
instructions/orders issued by the Govt.
of India from time to time.
37
Item No. 27/C-5 OA 3619/2022 with OA 247/2023
Column 7 Not applicable.
Column 8 (Now 09) Age : No
Edn. Qualification : Yes
Column 10 (Now 11) By direct recruitment-85%
By Promotion -15%
failing which by direct recruitment.
Column 11 (Now 12) Promotion:
(a) 12% from Work Assistant (Civil)
having 13 years regular service in the
grade in pay scale of Rs.3050-4590.
(b) 3% Surveyor (Civil) having 13 years
regular service in the grade in pay scale
of Rs.3050-4590.
(c) 12% Work Assistant
(Mechanical/Electrical) having 13 years regular service in the grade in pay scale of Rs.3050-4590.
(d) 3% Surveyor (Mech./Elect.) having 13 years regular service in the grade in pay scale of Rs.3050-4590.
By Order and in the Name of the Lt. Governor of the National Capital Territory of Delhi, S. S. SIDHU, Jt. Secy"
9. The official respondents are taking aid of words "educational qualifications necessary for appointment"
used in RRs notified as on 22.02.1984, 12.06.1986 and 26.10.2004. We find that in terms of RRs as on 03.02.1966, there was no usage of word "necessary". The history of engineering courses reveals that till the year 1987, there were very less number of engineering colleges in India. The above historical background as well as RRs of 38 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 respondents till 1986 is the main reason to go through the same. What we observe is that the IEI started recognizing different engineering disciplines way back in 1939 with the course of B.Sc (Eng.) conducted at the then Punjab University. IEI virtually acted as the agency on behalf of the Government, State Governments, Industries, etc. for accreditation of engineering curricula. IEI has accredited over 1200 courses in more 400 leading engineering colleges including IIT(s), Regional Engineering Colleges (now NITs), Deemed universities, Defence establishments, Private engineering colleges and others. The Institution continued the task for recognition of degree and diploma level Engineering programs till formation of AICTE in 1987 and NBA in 1994, respectively came into existence. 9.1 After AICTE came into existence, it was given the statutory powers by the Ministry of Human Resource Development (MHRD) for approval of degree/diploma programmers before starting such courses. 9.2 As notified by the Government of India, passing of Sections A & B Examination of the Institution is equivalent to a degree in engineering in the respective disciplines. 9.3 Accordingly, the Council in its 52nd Emergent Meeting held on August 03, 2017 decided to recognize equivalence for all purposes including Higher Education Employment to 39 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 Technical Courses conducted by various Professional Bodies/Institutions which were duly recognized by MHRD with permanent recognition up to 31st May 2013. 9.4 Hence, IEI played main role till 1987 i.e. till formation of AICTE. As per AICTE, AMIE is recognized as equivalent to bachelor's degree in appropriate branch of engineering, to those who had enrolled themselves with the institution on or before 31 May 2013. The Public Notice issued in this regard reads as under :-
"PUBLIC NOTICE (For Professional Bodies/Institutes Imparting Technical Education) Whereas MHRD, Govt. of India, through an order (vide OM no. 11-15/2011-AR (TS.I) dated 06.12.2012) withdrew the recognition granted to all certificates/qualifications awarded by professional bodies/institutions in the field of technical education. The MHRD further stipulated that from 01.06.2013onwards the courses for equivalence will cease to have effect for employment in Central Government and the decision on the continuation of the certification of equivalence degree/diploma would be taken by the statutory regulator(AICTE) after review."
10. We would have agreed with submissions of the learned counsel for the official respondents, however, we do not view the term "necessary" to be regarded as synonym for "essential" though it may appear to be so, when given plain and simple meaning to both in common parlance. The legal definition would altogether give different color, connotation and perspective.
40Item No. 27/C-5 OA 3619/2022 with OA 247/2023
11. The words "essential" and "necessary" are both adjectives that indicate importance but they have different meaning:
"Essential"
means something is indispensable or vital.
"Necessary"
means something required or needed to achieve a particular goal or outcome.
The words "Essential" and "Necessary" are used in different circumstances. "Essential" is "something without which one cannot do" and "Necessary" is "something which is important but we can do without it". The meaning of the simple term "necessary" is not straightforward. The Oxford English Dictionary defines it as "that which cannot be dispensed with or done without requisite, essential, needful". It does not mean merely „expedient‟ or „appropriate‟. Word "necessary" in context of the present matter was to be understood that being "minimum" qualification. The Board also understood in the said context, which is also mentioned in the note put by the authorities. As submitted above, DSSSB has recommended the candidates with higher qualifications coupled with the fact that AICTE recognised AMIE as equivalent to bachelor's degree in appropriate branch of engineering, to 41 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 those who had enrolled themselves with the institution on or before 31 May 2013.
12. Since much emphasis has been laid on the word "necessary", we now deal with it in legal context.
a) In the context of commonwealth income tax and whether losses and outgoings were „necessarily incurred‟, it found that it is meant more than inevitable or unavoidable, but rather what was appropriate or plainly adapted to the needs of a certain activity in the matter of Federal Commissioner of Taxation v Snowden and Wilson Pty Ltd (1958) 99 CLR 431, 437 per Dixon CJ.
(b) Thomas v Mowbray (2007) 233 CLR 307, it was held that "...has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports."
(c) Mc Culloch v. Maryland 17 U.S. 316 (1819), it was held that "...does (not) always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? ... [W]e find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not 42 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 as being confined to those single means, without which the end would be entirely unattainable"
(d) In Castle Constructions Pty Ltd v Director-General of the Department of Planning [2007] NSWLEC 783, the New South Wales Land & Environment Court, in considering whether a planning scheme amendment was „necessary‟, held that „necessary‟ involves contextual considerations. Judgments of fact, degree and imperatives were needed to achieve clarity, even where it involved something less than absolute necessity. It particularly found that a „necessary amendment‟ is one "that cannot await the making of a local environmental plan"
(e) In Re P (Placement Orders. Parental Consent) [2008] EWCA Civ 535, the Appellate Court through Lord Justice Wall held that the word "necessary" "has a meaning lying somewhere between „indispensable‟ on the one hand and „useful‟, „reasonable‟ or „desirable‟ on the other.
(f) The meaning of word „necessary‟ depends on its context, the particular regulatory grounds relied upon and the factual circumstances - Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125.
13. In Shiv Shakti Coop. Housing Society, Nagpur v M/s. Swaraj Developers & Ors. arising out of Civil Appeal No. 3489/2003 @ S.L.P.(C) No.19852/2002, Civil Appeal 43 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 Nos.3494-98/2003 @ S.L.P.(C) Nos.22848-22852/2002, and Civil Appeal No. 3499/2003 @ S.L.P.(C) No.22009/2002] decided on 17/04/2003, the Hon‟ble Apex Court observed as under :-
"It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74)).
The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilip bhai Nathji bhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910)AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re- iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).
The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of 44 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981)"
14. The Full Bench decision of Hon‟ble High Court at Himachal Pradesh in Puneet Sharma (supra) was rendered on 07 April 2021, whereas the Full Bench decision of Hon‟ble High Court of Judicature at Allahabad in Deepak Singh & others v. State of U.P. & others, 2019 (7) ADJ 453 was rendered on 23.07.2019. The deliberations were made by official respondents in context of Full Bench in Puneet Sharma (supra) and not in the light of decision in Full Bench in Deepak Singh‟s case (supra), as is evident from point 49 of the note, which reads thus:
"49. Perusal of the facts of the case as placed by the Department on its file shows that these are similar to the above referred case decided by Hon'ble Supreme Court. The Department may therefore examine and process the matter further keeping in view aforesaid judgement. However, the Department will have to amend existing RRs of the post so that such issue does not arise in future."
15. Moreover, the decision in Deepak Singh's case (supra) was with reference to statutory rules as prevailing in Rahul Sharma Vs The State of Uttar Pradesh & Ors Special Appeal Defective No.54 of 2023 arising out of impugned final judgment and order dated 07.02.2023 in Special Appeal Defective No. 54/2023 passed by the High Court of Judicature at Allahabad, Lucknow Bench. The Hon‟ble High Court relying upon its Full Bench decision in 45 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 Deepak Singh's case (supra), answered the questions as follows: -
"Thus, our answers to the questions posed before the Full Bench are as under:
(1) A Diploma in Engineering and Degree in Engineering are two distinct qualifications and a degree in the field in question cannot be viewed as a higher qualification when compared to Diploma in that field.
(2) The decision in the case of Alok Kumar Mishra (supra) and Kartikey (supra) laid down the correct position in law holding that the degree holder is excluded from the zone of consideration for appointment as a Junior Engineer with regard to the Diploma in question.
(3) The degree holder is held to be ineligible to participate in the selection process of Junior Engineer in the light of the Advertisement issued.
(4) The exclusion of the degree holders from the zone of consideration is in consonance with the tests propounded by the Supreme Court in case of State of Uttarakhand and others v. Deep Chandra Tewari and another.
(5) The State Government, while prescribing the essential qualifications or desirable qualifications are best suited to decide the requirements for selecting a candidate for nature of work required by the State Government and the Courts are precluded from laying down the conditions of eligibility. If the language in the Rules is clear judicial review cannot be used to decide what is best suited for the employer.
(6) The 'O' level Diploma granted by NIELIT is not equivalent to Post Graduate Diploma in Computer Application and there is no presumption available to hold that the PGDCA possess the necessary qualification as prescribed for 'O' level Diploma accorded by NIELIT."
16. The word that is to say "essential" has been mentioned in RRs. Hence, "essential" cannot be added or ascribed to advertisement other than "necessary" used in RRs. More so, even prior to advertisement, a conscious decision after due deliberations had been taken by the 46 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 official respondents to allow degree holders to participate in Recruitment process.
17. In Bank of India v. Aarya K. Babu (2019) 8 SCC 587, 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, the Hon‟ble Supreme 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 so received in response to the initial notification.
18. We are conscious of the fact that it is always open to the Government not to fill up all the vacancies for a valid reason or even operate Wait List, but the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. There is no indefeasible right to be appointed. In the aforesaid matter, the Hon‟ble Supreme Court also observed that it does not mean that 47 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 the State has the license of acting in an arbitrary manner and the decision not to fill up the vacancies has to be taken bonafidely for appropriate reasons. It is also a well settled law that if the vacancies or any of them are to be filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. As a model employer, there is obligation on the part of the Government to act fairly and the whole exercise cannot be reduced to a mere farce.
19. In light of observations in Aarya K. Babu (supra) after undergoing rigorous selection process, such as written test, the degree holders were allowed to participate in selection process, wherein 22 degree holders were found be within the merits list amongst 69 candidates, with 47 diploma holders on their own merits, which was not prepared on the basis of educational qualification. The facts also demonstrate that the essential eligibility qualifications were not 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, as it was not a case of relaxation of RRs, which is sought to be portrayed or highlighted to Hon‟ble Lt. Governor but actual issue of equivalence of diploma holder vis-a-vis degree holder, 48 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 which was left to be decided by the Technical Expert(s), had been side lined.
20. In Government Of Andhra Pradesh Etc. v P. Dilip Kumar And Anr. Etc. decided on 3 February, 1993 (1993 SCR (1) 435, the Hon‟ble Supreme Court observed as under:
"In the present case also the zone of consideration was narrowed by eliminating candidates who did not succeed in the qualifying test and out of those who succeeded in the qualifying test and secured the minimum marks after interview were considered and thereafter in the process of selection the preference rule was applied by first choosing the postgraduates and thereafter the graduates. We have already pointed out above that classification on the basis of higher educational qualification with a view to achieving improvement in administrative performance is not abhorrent to Articles 14/16 of the Constitution. We are, therefore, of the opinion that the view taken by the learned Single Judge of the High Court on a true interpretation of the relevant rule in the context of the historical background was a plausible view and should commend acceptance as it would advance the cause of efficiency in a highly technical service. We, therefore, think that even if two views were possible, the Tribunal ought not to have unsettled the legal position settled earlier by the High Court with which even this Court refused to interfere in SLP. For the foregoing reasons we do not approve of the view subsequently taken by the Tribunal."
21. In Roop Chand Adlakha And Ors v. Delhi Development Authority And Ors on 26 September, 1988 (1989 AIR 307), the DDA, which was the appellant in Civil Appeals No.898 and 899 of 1988, assailed the correctness of the view taken by the Hon‟ble High Court. Civil Appeals No. 896 and 897 of 1988 were filed by the Graduate- Engineers who were respondents before the Hon‟ble High Court and who were similarly aggrieved by the decision in SLP No.6181 of 1988 filed by the DDA Graduate Engineers 49 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 Association, which seeks to espouse the cause of the Graduate-Engineers. Allowing the said Appeals, the Hon‟ble Apex Court observed as under:-
"Here, in the present case, the possession of a diploma, by itself and without more, does not confer eligibility. Diploma, for purposes of promotion, is not considered equivalent to the degree. This is the point of distinction in the situations in the two cases. If Diploma-Holders-of course on the justification of the job-requirements and in the interest of maintaining a certain quality of technical expertise in the cadre-could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is limited only two choices, namely either to consider them "eligible" or "not eligible".
State, consistent with the requirements of the promotional- posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on Diploma- Holders conditioning it by other requirements which may, as here, include certain quantum of service-experience. In the present case, eligibility-determination was made by a cumulative-criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said, as postulated by the High Court, that the choice of the State was either to recognise Diploma-Holders as "eligible" for promotion or wholly exclude them as "not-eligible". If the educational qualification by itself was recognised as conferring eligibility for promotion, then, the super-imposition of further conditions such as a particular period of service, selectively, on the Diploma-Holders alone to their disadvantage might become discriminatory. This does not prevent the State from formulating a policy which prescribes as an essential part of the conditions for the vary eligibility that the candidate must have a particular qualification plus a stipulated quantum of service- experience. It is stated that on the basis of the "Vaish- Committee" report, the authorities considered the infusion of higher academic and technical quality in the personnel requirements in the relevant cadres of Engineering Services necessary. These are essentially matters of policy. Unless the provision is shown to be arbitrary, capricious, or to bring about grossly unfair results, judicial policy should be one of judicial- restraint. The prescriptions may be somewhat cumbersome or produce some hardship in their application in some individual cases; but they cannot be struck down as unreasonable, capricious or arbitrary. The High Court, in our opinion, was not justified in striking down the Rules as violative of Articles 14 and 16."
50Item No. 27/C-5 OA 3619/2022 with OA 247/2023
22. In State of U.P. v. Rafiquddin and Ors. (1987 (Supp) SCC 401), it was inter alia held as follows:
"Before we close we would like to refer certain aspects which came to our notice during the hearing of the case relating to the functioning of the Public Service Commission, selection of candidates and their appointment to the Judicial Service. We are distressed to find that the Public Service Commission has been changing the norms fixed by it for considering the suitability of candidates at the behest of the State Government after the declaration of results. We have noticed that while making selection for appointment to the U.P. Judicial Service the Commission had initially fixed 40 per cent aggregate marks and minimum 35 per cent marks for viva voce test and on that basis it had recommended list of 46 candidates only. Later on at the instance of the State Government it reduced the standard of 40 per cent marks in aggregate to 35 per cent and on that basis it forwarded a list of 33 candidates to the Government for appointment to the service. Again at the behest of the State Government and with a view to implement the decision of the high level committee consisting of Chief Justice, Chief Minister and the Chairman of the Commission forwarded name of 37 candidates in 1974 ignoring the norms fixed by it for judging the suitability of candidates. The 'Commission is an independent expert body. It has to act in an independent manner in making the selection on the prescribed norms. It may consult the State Government and the High Court in prescribing the norms for judging the suitability of candidates if no norms are prescribed in the Rules. Once the Commission determines the norms and makes selection on the conclusion of the competitive examination and submits list of the suitable candidates to the Government it 51 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 should not reopen the selection by lowering down the norms at the instance of the Government. If the practice of revising the result of competitive examination by changing norms is followed there will be confusion and the people will lose faith in the institution of Public Service Commission and the authenticity of selection."
23. We also find that the Board has also put up a Note in Result Notice dated 25.6.2021, which reads as under :-
"*Note- That as per RRS "Diploma in Mechanical/Electrical Engineering from recognized University/institution or equivalent. "
Further, the some of the candidates have uploaded the certificates/ documents related to B Tech in similar trade, which is a subjective and technical matter therefore, at this stage, DSSSB has not undertaken the veracity/scrutiny of experience certificate furnished by the candidates as such user department i.e. I & FC Deptt, GNCTD is requested to ascertain the scrutiny/correctness of the same at their own level before issuing the offer of appointment to the proposed candidate. The selection is provisional and subject to the satisfaction of User department regarding experience certificate furnished by above candidates."
The Note in Result Notice dated 27.07.2021 reads as under :-
"*Note:- It is stated that most of the above candidates have uploaded higher qualification as well as different types of certificate/degree with regard the essential qualifications, however as per RRs to one of the essential qualification is "Diploma in Civil Engineering from a recognized University or Institution".52
Item No. 27/C-5 OA 3619/2022 with OA 247/2023 Further, the same is a subjective and technical matter and User Department has not provided any specification in this regard. At this stage, DSSSB has hot undertaken the veracity/scrutiny of Degree/Diploma furnished by the candidates. As such User Department I.e. I &F C.GNCTD is requested to ascertain the scrutiny! correctness of the same at their own level before issuing the offer of appointment to the proposed candidates. The selection is provisional and subject to the satisfaction of User Department regarding Degree /Diploma furnished by above candidates."
Thus, it is clear from the above as well as what we have already noted hereinabove, the fact that prior extensive consultation(s) within the Commission and user department, diploma holders versus degree holders had already taken place. Once results have been finalized, the same cannot be allowed to be retracted on the principle of doctrine of approbate and reprobate. There is nothing on record to show by the official respondents that since 1966 RRs till the subject Advertisement, the degree holders having higher qualification is an impediment so as to show that they were never offered appointment either on contractual or regular basis. Rather we find that it has not been in dispute that in subsequent Recruitment process, degree holders have been allowed to participate in recruitment process without any murmur. The diploma holders have not been found non-suited on that count. 53 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 24. Coming to OA No. 247/2023 24.1 On perusal of the records, it reveals that the main challenge by diploma holders led to the fact that degree holders were not eligible to apply. We cannot deny the fact that in earlier round of litigation, the OA was disposed of by the Tribunal with directions to the respondents to take a call on representation of the applicants. Now, in present OA, the subject matter of challenge is a reasoned order dated 06.10.2023 passed on the representation.
25. We agree with the contention of the learned counsel for official respondents as well as private respondents that in terms of relief(s) sought in present OA and in representation also, no relief qua the extension of validity of reserve panel has been sought. Even no amendment is sought to seek such relief(s) despite opportunity being granted for the purpose. However, it has been empathically and orally argued that one year of the validity of wait list panel ought to have from the date of first offer of appointment and not from date of declaration of main result. In this regard, reliance was placed by the official respondents to the decision of Hon‟ble Apex Court in State of Karnataka v. Bharati S. 2023 Live Law (SC) 472. 54 Item No. 27/C-5 OA 3619/2022 with OA 247/2023
26. To address the said issue, we also draw a reference to DoPT‟s OM dated 13.06.2000 wherein directions have been given to form a reserve panel of candidates for appointment, in the eventuality a candidate does not join. The OM dated 13.06.2000 reads as under:-
No.41019/18/97-Estt(B) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training ****** New Delhi, dated 13th June, 2000 OFFICE MEMORANDUM Sub: Operation of reserve panels prepared on the basis of selections made by UPSC, Staff Selection Commission, other recruiting agencies and where selections are made by Ministries/Department etc. - acceptance of recommendations of Fifth Central Pay Commission - regarding.
.........
1. The undersigned is directed to invite attention to this Department's Office Memorandum quoted in the margin and to say that in terms of these Office Memorandum, it was informed that the Union Public Service Commission, wherever possible, maintains a reserve panel of candidates found suitable on the basis of selections made by them for appointment on direct recruitment, transfer on deputation, transfer basis and the reserve panel is operated by the UPSC on a request received from the Ministry/Department concerned when the candidate recommended by the UPSC either does not join, thereby causing a replacement vacancy or he joins but resigns or dies within six months of his joining.
Ministries/ Departments were advised that whenever such a contingency arises, they should first approach the UPSC for nomination of a candidate from the reserve panel, if any. The recruitment process be treated as completed only after hearing from the UPSC and the Ministry/Department concerned may resort to any alternative method of recruitment to fill up the vacancy thereafter.
2. The Fifth Central Pay Commission, in para 17.11 of its Report, has recommended that with a view to reduce delay in filling up of the posts, vacancies resulting from resignation or death of an incumbent within one year of 55 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 his appointment should be filled immediately by the candidate from the reserve panel, if a fresh panel is not available by then. Such a vacancy should not be treated as a fresh vacancy. This recommendation has been examined in consultation with the UPSC and it has been decided that in future, where a selection has been made through UPSC, a request for nomination from the reserve list, if any, may be made to the UPSC in the event of occurrence of a vacancy caused by non-joining of the candidate within the stipulated time allowed for joining the post or where a candidate joins but he resigns or dies within a period of one year from the date of his joining, if a fresh panel is not available by then. Such a vacancy should not be treated as fresh vacancy.
2. It has also been decided that where selections for posts under the Central Government are made through other recruiting agencies such as Staff Selection Commission or by the Ministries/Departments directly and the reserve panels are similarly prepared, the procedure for operation of reserve panels maintained by UPSC as described in para 2 above will also be applicable for the reserve panels maintained by the other recruiting agencies/authorities."
27. A notification dated 27.06.2018 issued by the Board reads as under :-
"The policy regarding reserve panel/waiting list was introduced by the Board for recruitment to various posts vide notification no. F.1(192)/DSSSB/P&P/13/5363-72 dated 13/06/13. The Board vide resolution no. P&P/2018/5 in its meeting dated 07.05.2018 in supersession of notice dated 13/06/13 has decided as under;-
1. The Board will make a Select Panel. All the candidates above minimum qualifying marks in their respective category may be kept in the Select Panel subject to call of e-dossier/verification of documents.
2. The Select Panel shall be valid for a period of 1 year from the date of declaration of result and the vacancies arising due to non-acceptance of the offer of appointment, not joining the post after acceptance of appointment, the candidates not found eligible for appointment or due to resignation of selected candidates within one year of validity of panel, shall be filled up from this Select Panel."56
Item No. 27/C-5 OA 3619/2022 with OA 247/2023
28. In Ravi Raj And Ors. v. Union Of India And Anr. decided on 2nd May, 2022 (W.P.(C) 3408/2019, CM APPL. 15675/2019, CM APPL. No.38109/2019 & CM APPL. 40072/2019), the Hon‟ble High Court of Delhi has held as under:-
"13. In Dinesh Kumar Kashyap and Others vs South East Central Railway and Others, (2019) 12 SCC 798 decided on 27.11.2019, the Supreme Court has held inter-alia as under:
"....
6. Our country is governed by the rule of law.
Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination, etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of SECR.
*********
12. Another argument raised is that recruitment policy is an executive decision and the courts should not question the efficacy of such policy. Neither the appellants nor this Court is questioning the efficacy of the policy contained in the letter dated 2-7-2008. All that has been done is to ensure implementation of the policy by Respondent 1, 57 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 especially when it has failed to give any cogent reason to justify its action of not calling for candidates from the replacement list of extra 20 per cent candidates.
.....
14. While allowing the appeals we issue the following directions:
14.1. The benefit of this judgment shall only be available to those appellants who had approached CAT;
14.2. The appellants shall not be entitled to any back wages;
14.3. The appellants shall, for the purpose of seniority and fixation of pay be placed. While the respondents were instructed to take a view in this regard, nothing worthwhile has been done in the last three years.
14.4. The appellants shall be entitled to notional benefits from the date of such deemed appointment only for the purposed of fixation of pay and seniority. ..."
14.The said dicta lay down the law.
29. In this regard, the judgment of the Hon‟ble Supreme Court in R.S. Mittal v. Union of India, (1995) Supplement (2) SCC 230 is worthwhile to mention:
"It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified."58
Item No. 27/C-5 OA 3619/2022 with OA 247/2023
15. Consequently, this court directs the respondents to prepare a Reserve Panel/Wait List of candidates taking into consideration the result already declared on 28.08.2017.
16. For the foregoing reasons, this Court sets aside the order passed in OA No.3528/2017 by the Central Administrative Tribunal, Principal Bench, New Delhi dated 15.03.2019. Those figuring in the Reserve Panel/Wait List, including the petitioners, shall be sent offers of appointment within six weeks of receipt of this order immediately above the first selected candidates of the selection process which commenced in the year 2012 and, immediately below the candidates of the selection list of 2010 in order of seniority;"
30. The Hon‟ble High Court of Delhi in batch of W.P.(C) 5211/2022 & CM APPL. 15475/2022 titled Subhash Chhilar and Others decided on December 21, 2022, also held as under :-
"In Union Public Service Commission Versus Grishma Goyal and Another 2021 SCC OnLine Del 3193 had dealt with a case where a candidate, who had tie-breaking marks with the last candidate, had sought appointment against a vacancy which had arisen due to non-joining of a candidate, this Court while rejecting the petition filed by the Union of India had observed and held as under:-
"17. In the present case, as in the case of Manoj Manu (supra), when the Department of Economic Affairs had written to the UPSC that the case of Ms. Grishma Goyal be examined in the light of the refusal to join by another successful candidate, the UPSC ought to have, without hesitation, recommended the name of the respondent No. 1. Instead, by taking shelter in the phrase "as per the relevant rules by the Commission" and claiming that because they do not have a wait-list, the rules do not permit the appointment of the respondent, they unjustly rejected her claim. This stand of the UPSC is unacceptable, particularly when a candidate with the same marks had been appointed on the basis of their own rule of "tie-breaking" and the notified vacancies would not have been exceeded by appointment of the respondent as a vacancy had arisen due to non-joining of another successful candidate, and there was no-one else over whom the respondent would have stolen a march as admittedly, she is as meritorious as the last person selected.
18. We find no cause to interfere with decision of the learned Tribunal directing the UPSC to forward the profile of the applicant to the Ministry. The appeal is accordingly dismissed with further direction to the petitioner/UPSC to ensure that all formalities for the appointment of the respondent No. 1 are completed within two weeks from the date of this judgment." 59 Item No. 27/C-5 OA 3619/2022 with OA 247/2023
32. While relying upon the decision of this Court in Union Public Service Commission Versus Grishma Goyal and Another (Supra), the Single Judge of Punjab and Haryana High Court in a decision dated 08.03.2022, titled as Anshul Vs. State of Haryana And Another, held as under:-
"7. The facts of the case in hand are pari materia with the ones in the aforesaid two judgments rendered by the Apex Court and by Delhi High Court. Therefore, I see no reason why the ratio rendered therein be not applied to the case in hand. I am of the view that the concept of waiting list as defined under the Act cannot be interpreted so as to mean that it is to be confused and/or misconstrued as not maintaining list of the candidates as per their merit. To that extent, merit list is not a waiting list. Merit list is not to be treated as waiting list for defeating the legitimate rights of a candidate next in merit against the unfilled post as has been unequivocally held by the Apex Court in judgment dated 26.07.2013 ibid.
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33. On application of the afore-noted decisions to the facts of the petitions in hand, we find that it would not only be in favour of meritorious candidates to get appointments against the unfilled seats, due to non-joining of candidates as well as left-over vacancies; but also in the interest of respondents to prevent them to undergo an exhausting and laborious recruitment process of vacancies pertaining to the year 2016 and 2018. It has already been held that mere selection does not give an indefeasible right to a candidate for appointment; however, it has also been held that if the posts advertised are lying vacant, appointments can be made through wait/panel list and in the absence of panel list/ wait list, any seat lying vacant due to non-joining of a candidate or leftover vacancy, can also be filled from candidates who meet the selection criteria."
31. In the facts of the present case, to say that waitlist panel had come to an end /lapsed as on 26.07.2022 runs contrary to the stand of official respondents. Despite the fact that the Board was in favour of allowing the degree holders since inception, not operating the reserve panel due to lack of inter-department decision to act or not to act upon the recommendations for appointing degree holders, was of their own making. In so many instances, the file pertaining to degree holder kept on moving from 2017 till 60 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 09.04.2022 when it was recommended to appoint diploma holders for time being.
32. We may highlight the ratio of decision cited above as well as OM dated 13.06.2000. There was no occasion for the respondent /DSSSB to contend and say that they have returned the vacancies after expiry of one year, even though same was to be operated for the candidates who did not join, when requisition was sought for at least 4 vacancies prior to 26.07.2022. Such practice is not justified, as the respondent/DSSSB ought to have called the waitlisted candidates for at least 4 vacancies, which had fallen due and for which a requisition was sought by the user department prior in time.
32.1 In Karnataka Public Service Commission & Ors v B.M. Vijaya Shankar & Ors, (1992) 2 SCC 206, it was observed that "Larger public interest demands of observance of instruction rather than its breach". 32.2 In Rekha Mukherjee v. Ashis Kumar Das, (2005) 3 SCC 427, the Hon‟ble Supreme Court observed as under :
"36. The Respondents herein cannot take advantage of their own mistake."61
Item No. 27/C-5 OA 3619/2022 with OA 247/2023 32.3 In Commissioner, Karnataka Housing Board v. C. Muddaiah, [(2007) 7 SCC 689], the Hon‟ble Supreme Court laid down the following:-
"32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged."
33. The records would reveal that the user department has requested the Board vide communication dated 62 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 09.09.2022 and 14.10.2022 inter alia to the effect that "a considered view in the matter in respect of duration of validity of the panel for the result notice No. 1326 dated 27.07.2021 for the post of Junior Engineer (Civil) under post code 11/17as the facts of the matter indicate that there is a strong apprehension of litigation due to pendency of important decisions in the matter about which the Board is already well aware."
33.1. Condition 12 of the Result Notice dated 27.07.2021 stipulated that "The User department shall ensure that the appointment made is in conformity with DOPT guidelines and instructions of Govt. issued from time to time". 33.2. It is not in dispute that the user department is the cadre controlling or appointing authority and has to strictly follow the merit of the candidates in the main list as well as the wait list. Even though it has been stipulated that the candidates in the Waiting Panel or the Balance Reserve Panel shall have no claim or right for appointment per-se against the vacancies notified for the recruitment and they can only get offer of appointment in the event any vacancy in their respective category arises due to non-acceptance of the offer of appointment or not joining the post after acceptance of appointment etc. within one year of validity 63 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 of panel, in terms of Condition 12 of the Result Notice dated 27.07.2021, it is mandatory upon the official respondents that while operating the Waiting Panel list, they have to strictly follow the instructions issued in DoP&T OM No. 36012/2/1996 -Estt. (Res) dated 02.07.1997, OM No. 36011/1/98 -Estt. (Res) dated 01.07.1998, OM No. 43011/4/2018-Estt. (Res) dated 04.04.2018 and the Services Department circular No. F. 16 (3)/DSSSB/2007-S-III/1268 dated 13.06.2019 regarding shifting of candidates from their respective reserve categories to the un-reserve category.
33.3. In accordance with the Services Department Circular dated 13.06.2019, the Board has to prepare and maintain the Waiting/reserve panel and all the candidates above minimum qualifying marks in their respective categories are kept in waiting/reserve panel subject to call of e-dossier/verification of documents. The waiting Panel is valid for a period of one year from the date of declaration of the main result for filling up the vacancies arising due to non-acceptance of the offer of appoint, not joining the post after acceptance of appointment, resignation after joining, etc. within one year of validity of panel. 64 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 Thus, the illegality has been committed by the official respondents in not following the wait list policy resulted in procedural lapses as well as mandated by reserve panel policy in place. The respondents are discharging their duties on behalf of the State and they have all the more responsibility to abide by the rules and law to set an example as a model employer in dealing with the matters of public employment.
34. CONCLUSION/RELIEF :
34.1 In view of above detailed discussions, the OA No.3619/2022 is allowed directing the respondents to fill up the posts of Junior Engineer (Civil)/Junior Engineer (Mechanical) (post codes 11/17 & 12/17), in the Department of Irrigation and Flood Control, Government of NCT of Delhi by appointing the applicants, who have been shortlisted by DSSSB vide result notice nos. 1299 dated 25.06.2021 and 1326 dated 27.07.2021.
34.2 In the conspectus of things, in peculiar facts and circumstances of the case, we dispose of OA No.247/2023 directing the respondents to issue offer of appointment to the waited list panel as regards four (4) vacancies, as requisitioned by the user department prior to 26.07.2022 as a one-time measure only, which would not be extended any further on the assumption that the first four do not 65 Item No. 27/C-5 OA 3619/2022 with OA 247/2023 join on being issued offer of appointment. Thus, the wait listed candidates from serial nos. 1 to 4 figuring in the reserve panel/wait list shall be sent offers of appointment within eight weeks of receipt of this order.
34.3 The common directions in both cases are that the offers of appointment shall be made within eight weeks of receipt of this order.
Apart from above, we further issue the following common directions:-
34.4 The applicants shall not be entitled to any back wages. However, they are entitled for actual benefits from the date of joining. For the purpose of seniority and fixation of pay, the applicants shall be entitled to notional benefits from the date of such deemed appointment.
34.5 All pending MAs, if any, in both the OAs shall also stand disposed of. No costs.
(Dr.Anand S. Khati) (Manish Garg) Member (A) Member (J) /akshaya/