Delhi High Court
Ruchir Agrawal vs Public Enterprises Selection Board & ... on 1 September, 2023
Author: Satish Chandra Sharma
Bench: Chief Justice, Sanjeev Narula
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 01.09.2023
% LPA 616/2023 and CAV 448/2023, C.M. Nos. 45250/2023,
45251/2023 & 45252/2023
RUCHIR AGRAWAL ..... Appellant
Through: Mr. Gagan Gupta and Ms. Yashi
Agrawal, Advocates.
versus
PUBLIC ENTERPRISES SELECTION BOARD
& ORS. ..... Respondent
Through: Ms. Manisha Agrawal Narain, CGSC
with Mr. Sandeep Singh Somaria, Ms.
Shivangi Gumber and Ms. Khushi
Mangla, Advocates for Respondent
No.1/ PESB.
Mr. S. Sirish Kumar and Mr. Nirbhay
N. Singh, Advocates for Respondent
No.2.
Mr. Vinayak Mehrotra and Mr.
Saurav Rajurkar, Advocates for
Respondent No.4.
Mr. Rohan Thawani, Mr. Pratul
Pratap Singh and Ms. S. Ambica,
Advocates for Respondent No.5.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV NARULA
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. The present LPA is arising out of an order dated 24.08.2023 passed by
the learned Single Judge in W.P.(C) No. 3259/2023 titled Ruchir Agrawal
Vs. Public Enterprises Selection Board & Ors.
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2. The facts of the case reveal that the Appellant before this Court was
serving as an employee at Indian Oil Corporation Limited ("Respondent
No. 2" or "IOCL") on the post of Chief General Manager (Corporate
Finance & Treasury) which is a post below Board Level, since 21.07.2021.
He filed the underlying writ petition being aggrieved by the advertisement
dated 25.11.2022 issued by the Public Enterprises Selection Board
("Respondent No. 1" or "PESB") inviting applications for the post of
Director (Finance) in IOCL. The advertisement provided preference to
persons who were qualified Chartered Accountants over those who were
qualified Cost Accountants.
3. The facts further reveal that the Appellant started his career in the
IOCL in 1994 and as stated has worked with sincerity devotion at the
company. He states he has contributed in major decisions which affect the
functioning of IOCL with loyalty and sincerity.
4. The Appellant who was eligible for appointment to the post of
Director (Finance) came up with a case before this court vide the underlying
writ petition, stating that the eligibility criteria for appointment of Director
(Finance) prior to 19.08.2021 provided that a candidate who possess the
qualification of being a Chartered Accountant or Cost Accountant or a full
time MBA/PGDM Courses with good academic record from a recognized
University/Institution besides holding other qualification also including
experience, would be eligible to be appointed to the post of Director
(Finance).
5. The Appellant contended that prior to 19.08.2021, the qualification of
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Chartered Accountant and Cost Accountant were treated at par. However,
an internal meeting took place on 19.08.2021 by the members of the PESB
for discussing the qualifications required for appointment to the post of
Director (Finance). In the said meeting the qualification criteria for the post
was discussed at length and the committee arrived at a conclusion that
preference would be given to Chartered Accountants over and above the
Cost Accountants. The Petitioner further contended that based upon the
recommendations of the PESB, an advertisement was issued on 25.11.2022,
and in the qualification clause therein, it was categorically mentioned that
persons who are Chartered Accounts shall be given preference for
appointment to the post.
6. The Appellant further stated that after holding an internal meeting, the
vacancy qua the appointment of Director (Finance) was advertised as stated
earlier and the Appellant being aggrieved by the decision taken in the
meeting submitted various representations and protested the alleged
arbitrary and illegal decision of the PESB. However, at the same time, the
Appellant preferred a writ petition before this Court challenging the
advertisement and his exclusion from the shortlisted candidates from the
post of Director (Finance).
7. During the pendency of the writ petition, by an interim order dated
22.03.2023, the Learned Single Judge directed the Respondents to permit the
Petitioner/Appellant herein to appear in the interview process which was
scheduled on 24.03.2023 for the post of Director (Finance), even though the
Appellant was not shortlisted. However, the said order made it clear that the
Appellant's participation in the interview was subject to the final outcome of
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the writ petition. The Appellant did appear in the process of interview and
the PESB was directed to keep the result of the interview in a sealed cover.
8. The learned Single Judge vide interim order dated 25.05.2023
permitted the Respondents to open the aforesaid seal cover and the result in
the sealed covered revealed that the Appellant herein was not selected for
the post in question. Meaning thereby, in spite of the fact that the
qualifications prescribed for the post of were providing preference to the
Chartered Accountant, and the Appellant was not a shortlisted candidate, on
account of an interim order in his case, he was considered for merit and he
was not able to find a berth in the selected list.
9. The learned Single Judge dismissed the writ petition. The operative
paragraphs i.e., Paragraph Nos. 65 to 76 of the judgment passed by the
learned Single Judge read as under:
"65. Having dealt with both the issues in the earlier
paragraphs, it is crystal clear that the petitioner cannot be
granted the relief. However, he has relied upon the decision of
the Coordinate bench of this Court in Geeta Sharma v. Public
Enterprises Selection Board & Anr (Supra) and vehemently
argued that the said case deals with the similar issues and can
be relied upon by this Court to allow the prayer sought by the
petitioner. Therefore, it is pertinent to analyse whether the
decision given by the Coordinate bench in the said case is
binding on the cases dealing with the similar issues and if the
said case be held as the settled position of law with regards to
the preference given to the Chartered Accountants. In the
aforesaid case, this Court interpreted a similar advertisement
preferring Chartered Accountants over Cost Accountants for
the post of Director (Finance) in a CPSE and held that the
preference given to the Chartered Accountants cannot be read
alone while ignoring the other factors. The relevant paragraphs
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of the said judgment are reproduced herein:
"18. Learned counsel for the petitioner has vehemently
urged that the phrase „preference would be given to
Chartered Accountant‟ as used in the advertisement,
cannot imply that all other factors, including the post on
which the applicant is presently working as also his/her
payscale, must be ignored. On the other hand, learned
counsel for respondent nos. 1 and 3 have urged that
once, sufficient number of Chartered Accountants were
available in the external category, from which category
only two candidates were required to be shortlisted, the
respondents were justified in giving preference to the two
Chartered Accountants, who have been placed at serial
nos. 6 and 7, even though they are drawing lower
payscale vis-à-vis the petitioner, who is admittedly not a
Chartered Accountant. The short question before this
Court, therefore, is as to what is the implication of the
term „preference‟ as used in the advertisement. Does it
imply that every applicant who is a Chartered
Accountant will be given preference vis-à-vis a
nonchartered accountant, irrespective of the post held, or
the payscale drawn by the applicant?
19. Having given my thoughtful consideration to this
issue, I am of the opinion that, while determining what
the term „preference‟ as used in the advertisement
would mean, it would be also necessary to consider the
guidelines issued by the respondent no. 1 itself for
determining the inter-se seniority of the applicants in the
same pay scale for purposes of shortlisting. I may,
therefore, now refer to the PESB guidelines regarding
Board Level Appointments in CPSEs. The relevant
extract of the PESB guidelines titled as "Revision of
policy of determination of inter-se seniority amongst
candidates of sectoral and external category of CPSE",
reads as under:
"Revision of policy of determination of inter-se seniority
amongst candidates of sectoral and external category of
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CPSE
The practice in the PESB for determining inter-se
seniority of the applicants in the same pay scale for the
purposes of shortlisting in external and sectoral
categories of CPSEs that amongst eligible candidates
under each category, preference is given to number of
years of working in a higher pay scale. After reviewing
this practice, with effect from 31.05.2017, the following
practice was adopted:
a. Preference will be given to applicants holding a
higher pay-scale.
b. If pay scale of the applicants is same then -
(i) Board level applicants will be given preference
over applicants who are below the Board level.
(ii) If two Board level applicants are holding the
same pay scale then Chairman/CMD/MD would
get preference over the Director. The inter-se-
seniority between two or more
Chairman/CMD/MD or two or more Directors will
be determined with respect to date of holding the
same pay scale.
c. Similarly, if pay scale of two or more applicants
is same then applicants working just below the
Board (e.g. Executive Director in a schedule „A‟
CPSE) would get preference over the applicants
working at other levels. If two just below Board
level executives are holding the same pay scale
then inter-se seniority will be determined with
respect to date of holding the same pay scale.
d. The inter-se seniority of below the Board level
executive holding same pay scale would continue
to be determined with respect to date of holding
the same pay scale.
2. The policy (para c above) was put in place to give
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preference to senior-most candidates in the below Board
level but while implementing the provision, it has been
observed that information of candidates working at ranks
just below the Board is not available with the PESB as
also that ranks at below Board varies from CPSEs to
CPSEs. Difficulties are also being encountered in
receiving timely and accurate information in this regard
from CPSEs leading to delays and ambiguity in
shortlisting.
3. The policy regarding determination of the inter-se
seniority of the applicants for the purpose of shortlisting
of executives holding the same pay scale in the
sectoral/external category have now been revisited and it
was decided that-
a. Preference will be given to applicants holding a
higher pay-scale.
b. If pay scale of the applicants is same then -
(ii) Board level applicants will be given preference
over applicants who are below the Board level.
(ii) If two Board level applicants are holding the
same pay scale then Chairman/CMD/MD would
get preference over the Director. The inter-se-
seniority between two or more
Chairman/CMD/MD or two or more Directors will
be determined with respect to date of holding the
same pay scale.
c. The inter-se seniority of below the Board level
executive holding same pay scale would continue
to be determined with respect to date of holding
the same pay scale. If date of holding pay scale is
same, then the inter-se seniority will be determined
w.r.t. date of birth i.e. older getting preference
over the younger applicant."
20. A perusal of paragraph „a‟ of the aforesaid guideline
clearly shows that preference has to be given to the
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applicants drawing a higher pay scale. Similarly,
paragraph „b (i)‟ of these guidelines clearly prescribes
that, if payscale of the applicants under consideration is
same, then Board level applicants will be given
preference over the applicants who are below the Board
level. Thus, these guidelines also envisage granting of
preference to applicants in certain situations. Firstly,
preference is to be given to candidates having higher pay
scale and, secondly, preference is to be given to board
level applicants vis-à-vis applicants who are below the
board level.
21. In the present case, it is undisputed that the petitioner
is not only drawing the payscale of Rs. 1,60,000/- to Rs.
2,90,000/- which is higher than the payscale of both the
other candidates in the external category, who are
drawing the pay scale of Rs. 1,20,000/- to Rs. 2,80,000/-.
It is also admitted that, while the petitioner is holding a
Board level post of Director in a Schedule-B CPSE, the
two shortlisted candidates in the external category are
working as General Managers, one in the Noida Metro
Rail Corporation Limited, and the other in Electronics
Corporation of India Ltd. Thus, if the preference as
envisaged in the guidelines, which the respondents do not
deny are equally applicable for shortlisting of candidates
for the post of Member (Finance) in respondent no. 2,
are applied to the present case, it is evident that the
petitioner was entitled to get preference not only by the
virtue of her higher payscale, but also by virtue of her
holding a Board level position since August 2018.
22. In the light of this position, while candidates at serial
nos. 6 & 7 of the impugned list of shortlisted candidates
may be entitled to get preference on account of their
qualifications, the petitioner was clearly entitled to get
preference on two counts, one on account of her higher
payscale, and the other on account of her Board level
position, as the other two candidates are admittedly
holding the post of a General Manager in two other
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CPSEs. When these aspects are cumulatively considered,
the only plausible interpretation which can be given to
the term „preference would be given to Chartered
Accountant‟ must be read to imply "an added
advantage". The „preference would be given to a
Chartered Accountant‟ could not be read in such a
manner to ignore the higher payscale and the Board level
position of the petitioner, which position the other
candidates do not hold. I, therefore, find merit in Mr.
Mehta's submission that the question of giving preference
to candidates at serial nos. 6 & 7, who are Chartered
Accountants, would arise only if they were otherwise
equally placed as the petitioner in all other aspects.
Once, the petitioner in terms of PESB guideline, was
entitled to get preference not only on account of her
higher payscale, but also on account of her Board
position, these two candidates could not be allowed to
steal a march over her and that too, by excluding her
even from the interview for the selection process.
23. In my considered view, the respondent nos. 1 and 3
have clearly misinterpreted the clause envisaging
preference to be given to Chartered Accountants, as laid
down in the advertisement, by ignoring all other relevant
and material factors. The petitioner is a highly qualified
professional who has been holding a Board level position
since August 2018 in a scheduled-B CPSE, and she also
holds a doctorate degree. It will indeed be a travesty of
justice if she is altogether excluded even from
consideration for selection for the post of Member
(Finance) in respondent no. 2, and that too by giving
preference over her to two „below Board level officers‟ in
the impugned list under the external category."
66. On perusal of the aforesaid paragraphs, it is clear that the
petitioner in the aforesaid case was Director (finance) in
another CPSE and was ignored despite the fact that the other
selected candidates were below board level employees. While
interpreting the preference clause in that case, the coordinate
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bench of this Court had relied upon the internal meeting
decision dated 31st January, 2018 whereby it was decided by
the committee to prefer board level employees while filling up
vacancies to be taken by the external and sectoral candidates.
67. At this stage, it is established that the aforesaid case relied
upon by the petitioner revolves around different circumstances
all together and there exist stark differences in both the cases.
Firstly, the above reproduced judgment is related to vacancy
for external candidates and nowhere discusses the aspect of
vacancies arising for the internal candidates in the
organizations. Secondly, the petitioner in the referred case was
a board level employee drawing a salary similar to the grade
pay of the post for which she had applied. However, in the
instant case, the petitioner is a below board level employee.
68. In the instant petition, it is clear that the issue is limited to
the vacant position for insiders. The petitioner applied for the
said position in the internal vacancy and not the external one.
Furthermore, it is placed on record that there are 7 eligible
candidates above him against 6 slots allotted under internal
category and there are 2 non-chartered accountant candidates
senior to the petitioner. Thus, the petitioner cannot rely upon
the judgment given in context of external vacancy arising in the
CPSEs.
69. At last, it is pertinent to mention that even though the
petitioner‟s plight is regarding the qualification clause of the
said advertisement/JD, he still chose to apply for the vacant
position but challenged the preference clause only after not
getting shortlisted in the interviews.
70. This Court vide interim order dated 25th May, 2023,
allowed the petitioner to appear for the interview, but the
petitioner was not selected for the further process. Therefore, it
can be said that earlier, the petitioner had conveniently ignored
the preference clause but decided to challenge the same after
non-selection for the said post. The judicial dicta related to the
similar issue is amply clear. In the case of Om Prakash Shukla
v. Akhilesh Kumar Shukla, 1986 Supp SCC 285, the Hon‟ble
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Supreme Court has dealt with the issue in following manner:
"24. Moreover, this is a case where the petitioner in the
writ petition should not have been granted any relief. He
had appeared for the examination without protest. He
filed the petition only after he had perhaps realised that
he would not succeed in the examination. The High Court
itself has observed that the setting aside of the results of
examinations held in the other districts would cause
hardship to the candidates who had appeared there. The
same yardstick should have been applied to the
candidates in the district of Kanpur also. They were not
responsible for the conduct of the examination."
71. In Madan Lal v. State of J&K, (1995) 3 SCC 486, the
Hon‟ble Supreme Court discussed the issue of selection process
challenged by the parties once they fail in getting selected for
the vacant posts and held as follows:
"9. Before dealing with this contention, we must keep in
view the salient fact that the petitioners as well as the
contesting successful candidates being respondents
concerned herein, were all found eligible in the light of
marks obtained in the written test, to be eligible to be
called for oral interview. Up to this stage there is no
dispute between the parties. The petitioners also
appeared at the oral interview conducted by the
Members concerned of the Commission who interviewed
the petitioners as well as the contesting respondents
concerned. Thus the petitioners took a chance to get
themselves selected at the said oral interview. Only
because they did not find themselves to have emerged
successful as a result of their combined performance
both at written test and oral interview, they have filed
this petition. It is now well settled that if a candidate
takes a calculated chance and appears at the interview,
then, only because the result of the interview is not
palatable to him, he cannot turn round and subsequently
contend that the process of interview was unfair or the
Selection Committee was not properly constituted. In the
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case of Om Prakash Shukla v. Akhilesh Kumar Shukla
[1986 Supp SCC 285: 1986 SCC (L&S) 644 : AIR 1986
SC 1043] it has been clearly laid down by a Bench of
three learned Judges of this Court that when the
petitioner appeared at the examination without protest
and when he found that he would not succeed in
examination he filed a petition challenging the said
examination, the High Court should not have granted any
relief to such a petitioner."
72. On perusal of the aforesaid cases, it is amply clear that the
parties cannot impugn the rules of the game where they had
already chosen to take the fair chance by applying to the said
vacant position. Therefore, it is crystal clear that the petitioner
took a fair chance by applying for the position and has
approached this Court when he failed to get appointed.
73. Therefore, in light of the application of the settled principle
of law as enunciated in the above discussed cases, it is made
out that the petitioner did not come to this Court with clean
hands, rather only preferred the instant petition when his
application was rejected by the respondents.
74. Furthermore, this Court vide interim order dated 25th May,
2023 had allowed the petitioner to appear for the interview, but
the petitioner was still not selected for the said position.
Therefore, the petitioner cannot be granted relief and appointed
to the post as the principle of estoppel is attracted which
precludes the petitioner from questioning the selection process.
CONCLUSION
75. The foregoing paragraphs clearly establishes the case in
favour of the respondents. Firstly, the respondent Body has not
violated the fundamental right of the petitioner by creating
separate classification for better qualification. Secondly, even
though the scope of issuance of mandamus under Article 226 of
the Constitution of India is wide, the same cannot be issued to
grant a relief not prayed by the petitioners. Thirdly, it is a well
settled principle that the respondent Body being an expert
committee need not be questioned on the aspects of decision
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taken, rather can only be reconstituted or looked into whenever
there is material irregularity with the decision or constitution of
the said expert committee. At last, the judgment relied upon by
the petitioner cannot be relied upon for deciding the instant
case as the facts and circumstances of both the cases are
materially different and the said referred judgment does not
hold binding value of any nature in the present case.
76. The CPSEs are entrusted to work efficiently and generate
profits for the government. For the same, the respondent Body
needs to appoint better qualified candidates to run and oversee
the operations of the said entities. Therefore, in view of the
above said discussion on facts as well as law, this Court does
not find any cogent reasons for granting relief to the
petitioner."
10. Learned Counsel for the Appellant has vehemently argued before this
Court that the learned Single Judge has ignored to consider the fact that the
Respondent No. 4, 5 & 6 who were junior to the Appellant, were included in
the shortlist for the interview ignoring the claim of the Appellant only
because the Respondent No. 4, 5 & 6 were Chartered Accountants and the
Appellant was a Cost Accountant and, therefore, the inclusion of
Respondent No. 4, 5 & 6 in the list dated 10.03.2023 of shortlisted
candidates was bad in law.
11. Learned Counsel for the Appellant has vehemently argued before this
Court that a specific relief was sought by him in the Writ Petition to do away
with the qualification whereby preference was given to Chartered
Accountants over Cost Accountants and the aforesaid relief has not been
granted by the learned Single Judge, and, therefore, the judgment given by
the learned Single Judge is bad in law.
12. Learned Counsel for the Appellant has vehemently argued before this
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Court that the decision of the PESB for giving preference to Chartered
Accountants over and above the cost accountants was bad in law and the
internal minutes of the meeting have no binding effect and such a
qualification could not have been included in the advertisement issued by
the Respondents based upon the internal meeting dated 19.08.2021.
13. Learned Counsel for the Appellant has vehemently argued before this
Court that the reliance placed by the learned Single Judge upon Section 288
of the Income Tax Act, 1961 is misplaced. He has vehemently argued
before this Court that the definition of the term "Accountants" under Section
288 of the Income Tax Act, 1961, from 1961 till 2021, considered Chartered
Accountants and Cost Accountants at par for the subject post for almost 6
decades, and, therefore, there was no justification for bringing in the
impugned qualification clause. He has further stated that there was no
reasonable classification done by the Respondent No.1 and heavy reliance
has been placed upon the judgment delivered in the case of Ashik Abbasi &
Ors. Vs. Govt. of NCT of Delhi & Ors. ILR (1999) II Delhi 151 to support
this argument.
14. He has further argued that the learned Single Judge has failed to
consider applicant's application i.e., C.M. No. 36265/2023 under Order 11
Rule 1(4) CPC dated 05.07.2023 by which the Appellant placed on record
other documents showing that various entities have placed Chartered
Accountants and Cost Accountants at par for the post of inter alia
employment.
15. Learned Counsel for the Appellant further contended that the learned
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Single Judge has wrongly placed reliance on State of Mysore Vs. P.
Narasinga Rao, (1968) 1 SCR 407; T. R. Kothandaraman and Others Vs.
T. N. Water Supply & Drainage Board and Others, (1994) 6 SCC 282;
Chhattisgarh Rural Agriculture Extension Officers Assn. Vs. State of M.
P., (2004) 4 SCC 646. He has further stated that all the aforesaid judgments
have nothing to show that Chartered Accountancy is a better/higher
qualification than Cost Accountant.
16. Learned Counsel has raised another ground stating that the learned
Single Judge has wrongly placed reliance on Government of W. B. Vs.
Tarun K. Roy and Others, (2004) 1 SCC 347. It has been stated that the
Appellant was fulfilling all the eligibility criteria and on the contrary
Respondent No.4 was not fulfilling the eligibility criteria and Respondent
Nos. 5 & 6 were juniors to the Appellant. Therefore, the shortlisting of the
Respondent Nos. 4, 5 and 6 was violative of Appellant's constitutional right
under Article 14 and 16 of the Constitution of India.
17. Learned Counsel for the Appellant has further argued before this
Court that the Respondent No. 5 & 6 were juniors to the Appellant, and they
were preferred only because they were Chartered Accountants, and such a
preference clause is against the settled principles of law. Reliance has been
placed upon a judgment delivered in the case of A. P. Public Service
Commission Vs. Y.V.V.R. Srinivasulu and Others, (2003) 5 SCC 341.
18. Learned Counsel has further argued before this Court that the findings
arrived at by the learned Single Judge holding the Chartered Accountants are
best suited persons for the post of Director (Finance) is erroneous.
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19. He has further contended that the post of the Director (Finance) is to
look after the financial accounts, event management of the organization and
is responsible for evolving and formulating policy relating to finance and
accounts as well as implementation thereof, and, therefore, a Cost
Accountant can also been said to be eligible to apply for the post and in case
Cost Accountants were not eligible, the advertisement would not have
included Cost Accountants also as eligible to apply for the post. It has been
vehemently argued that the Chartered Accountants and Cost Accountants are
equally placed, and the findings arrived at by the learned Single Judge are
conflicting and erroneous.
20. Learned Counsel for the Appellant has further stated that the minutes
of the internal meeting dated 19.08.2021 lack appropriate approval by
competent authority. It is a settled law that internal minutes of meetings are
unenforceable unless approved by competent authority. Learned Counsel for
the Appellant has placed reliance upon a judgment delivered in the case of
Delhi International Airport Ltd. Vs. International Lease Finance Corpn.
and Others, 2015 SCC OnLine SC 224.
21. Learned Counsel for the Appellant has raised another ground stating
that the amendment for granting preference to Chartered Accountants vis-à-
vis Cost Accountants came into force only in 2021 and it is having
retrospective effect on individuals who became Cost Accountant almost 20-
30 years from the said date, and, therefore, deprive Cost Accountants from
holding the post of Director (Finance).
22. Learned Counsel for the Appellant has further argued before this
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Court that the learned Single Judge has erroneously held that
recommendations of the expert committee cannot be interfered with in
normal circumstances. He has contended that expert committees are subject
to judicial review if they are in abrogation of certain principles of law and in
the present case the report of the expert committee is certainly arbitrary and
is in abrogation of settled principles of law, depriving the Cost Accountants
for the post of Director (Finance) as preference has been given to Chartered
Accountants over Cost Accountants.
23. Learned Counsel for the Appellant has further argued that the reliance
placed by the learned Single Judge in case of Geeta Sharma Vs. Public
Enterprises Selection Board & Anr., 2022 SCC Online Del 3600 is again
misplaced as the said judgment was delivered on 31.10.2022 i.e., prior to the
date on which the impugned list of shortlisted candidates was published by
Respondent No. 1.
24. Learned Counsel for the Appellant has further argued before this
Court that the learned Single Judge has erroneously held that parties cannot
impugn the rules of the game, especially when they have taken a chance to
participate in the process of selection. He has further contended that a Writ
Petition was immediately filed in the matter challenging the preferential
treatment, which was being given to Chartered Accountants, and, merely
because the Appellant has participated in the process of selection, it does not
mean he is estopped from challenging the same.
25. Learned Counsel for the Appellant has further argued that the findings
arrived at by the learned Single Judge that the Appellant did not come with
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ROHELLA
Signing Date:19.09.2023
12:33:32
the clean hands, is again erroneous and no material fact was suppressed by
the Appellant.
26. Learned Counsel for the Appellant has lastly argued before this Court
that the preferential treatment which was being given to the Chartered
Accountants by Respondent Nos. 1 & 2 is arbitrary, illegal and violative of
the constitutional rights guaranteed to the Appellant as the Appellant has
been deprived of his legitimate right of selection only on the ground that he
is a Cost Accountant and preference is being given to Chartered Accountant.
27. Heard Learned Counsel for the Parties at length, and perused the
record, the matter is being disposed of at admission stage itself with the
consent of the parties.
28. The undisputed facts of the case reveal that the Appellant before this
Court is serving with IOCL as the Chief General Manager (Corporate
Finance & Treasury) which is a post below Board Level since 21.07.2021
and is aggrieved by the advertisement issued by the PESB inviting
applications for the post of Director (Finance) in the Respondent no. 2
company.
29. The Appellant is aggrieved only with the condition mentioned in the
advertisement which provides that the Chartered Accounts will be given
preference over the Cost Accountant.
30. The undisputed facts of the case reveal that for the post of Director
(Finance) prior to 19.08.2021, the eligibility criteria provided that a
candidate should be a Chartered Accountant or Cost Accountant or a full
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ROHELLA
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time MBA/PGDM Courses with good academic record from a recognized
University/ Institution. The relevant extract of the advertisement issued on
18.06.2021 in respect of the aforesaid post is reproduced as under:
"III. ELIGIBIILTY
1. AGE: On the date of occurrence of vacancy (DOV)
Age of superannuation 60 years
Internal Others
Minimum Maximum Minimum Maximum
45 2 years residual 45 3 years
service as on residual
the date of services as on
vacancy w.r.t. the date of
the date of vacancy w.r.t.
superannuation. the date of
superannuation
2. EMPLOYEMENT STATUS:
The applicant must, on the date of application, as well as on the
date of interview, be employed in a regular capacity - and not
in a contractual/ad-hoc capacity - in one of the followings: -
(a) Central Public Sector Enterprise (CPSE) (including a full-
time functional Director in the Board of a CPSE);
(b) Central Government including the Armed Forces of the
Union and All India Services;
(c) State Public Sector Enterprise (SPSE) where the annual
turnover is *Rs 10,000 crore or more;
(d) Private Sector in company where the annual turnover is *Rs
10,000 crore or more. Preference would be given to candidates
from listed Companies.
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(* The average audited annual turnover of three financial
years preceding the calendar year in which the post is
advertised shall be considered for applying the approved limits)
3. QUALIFICATION:
(i) The applicant should be a Chartered Accountant or Cost
Accountant or a full time MBA/PGDM course with good
academic record from a recognized University/Institution.
(ii) Officers of Organized Group „A‟ Accounts Services [i.e.
Indian Audit and Accounts Service, Indian Defence Accounts
Service, Indian Railway Accounts Service, Indian Civil
Accounts Service, Indian P&T Accounts & Finance Service and
Indian Cost Accounts Service] working in the appropriate level
are exempted from these educational qualifications.
(iii) Further, applicants from the Central Govt./Armed Forces
of the Union/All India Services, will also be exempted from the
educational qualifications as per (i) above provided the
applicants have „the relevant experience‟ as mentioned in Para
4(iii) below.
In respect of applicants from Organized Group „A‟ Accounts
Services/Central Government/Armed Forces of the Union/All
India Services, Chartered Accountant/Cost
Accountant/MBA/PGDM will be a desirable educational
qualification.
4. EXPERIENCE:
(i) The applicant should have at least five years of cumulative
experience at a senior level during the last ten years in the area
of Corporate Financial Management / Corporate Accounts in
an organization of repute.
(ii) Applicants from Organized Group „A‟ Accounts Services
should have at least five years cumulative experience at a
senior level during the last ten years in the area of Corporate
Financial Management/ Corporate Accounts.
(iii) „The relevant experience‟ in respect of applicants from
Central Government/Armed Forces of the Union/All India
Services would include at least seven years of cumulative
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experience at a senior level during the last ten years in the area
of Corporate Financial Management/ Corporate Accounts.
5. PAY SCALE:
(a)Central Public Sector Enterprises
Eligible Scale of Pay
(i) Rs. 7250-8250 (IDA) Pre 01/01/1992
(ii) Rs. 9500-11500 (IDA) Post 01/01/1992
(iii) Rs. 20500-26500 (IDA) Post 01/01/1997
(iv) Rs. 51300-73000 (IDA) Post 01/01/2007
(v) Rs. 120000-280000 (IDA) Post 01.01.2017
(vi) Rs. 18400-22400 (CDA) Pre-revised post 01.01.1996
(vii) Rs. 37400-67000 + GP 10000 (CDA) post
01.01.2006
(viii) Rs. 144200-218200 (Level 14) CDA post
01.01.2016
The minimum length of service required in the eligible scale
will be one year for internal candidates, and two years for
others as on the date of vacancy.
(b)
(i) Applicants from Central Government / All India
Services should be holding a post of the level of Joint
Secretary in Government of India or carrying equivalent
scale of pay on the date of application.
(ii) Applicants from the Armed forces of the Union
should be holding a post of the level of Major General in
the Army or equivalent rank in Navy/Air Force on the
date of application.
(c)
Applicants from State Public Sector Enterprises/ Private
Sector should be working at Board level position or at
least a post of the level immediately below the Board
level on the date of application."
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ROHELLA
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31. The aforesaid advertisement dated 18.06.2021 was for appointment of
Director (Finance) in a CPSE namely Hindustan Petroleum Corporation Ltd.
("HPCL"). It is pertinent to note that the selection process for the Director
level post is conducted by PESB which is a high-power body constituted by
the Government of India which inter alia advises Government on
appointment of top management position of various CPSEs including the
IOCL. Respondent No.1 since its inception has been managing the selection
and appointment of top management post of CPSEs and the advertisement is
also issued by Respondent No.1 from time to time.
32. The facts further reveal that an internal high-power meeting took
place on 19.08.2021 by the members of Respondent No. 1 PESB and it was
discussed and decided in the meeting that for the post of Director (Finance)
preference should be given to Chartered Accountants. The minutes of the
meeting held on 19.08.2021 are reproduced as under:
"MINUTES OF INTERNAL MEETING HELD ON
19.8.2021
(i) Director (Finance) posts: -
With reference to all the Director (Finance) posts
across CPSEs, the Board was of the view that under
Qualification, preference should be given to Chartered
Accountant and should also be mentioned in the JD. It
was also decided that while examining the applications
of shortlisting for Director (Fin) posts across CPSEs, the
top 3 internal candidates will be shortlisted based on
seniority and experience provided they fulfil the
mandatory experience. For the next lot of applicant‟s
preference will be given for shortlisting to those with
qualification of Chartered Accountant. Preference will
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be given to applicants with Chartered Accountancy in
respect of Sectoral/External/SPSE/ Private Sector
candidates. The shortlisting of applicants form Central
Governments category will be governed by ACC
communication dated 1/11/2018."
33. On the basis of the decision taken by the experts in the meeting, the
board issued an advertisement dated 25.11.2022 and vide the aforesaid
decision the qualification clause was amended in the fresh advertisement
dated 25.11.2022. As per the amended qualification clause, it was
categorically mentioned that "the Applicant should be a Chartered Account
or Cost Accountant and preference would be given to Chartered
Accountant". The relevant extract of the advertisement dated 25.11.2022 is
reproduced as under:
"No.: 7/69/2022-PESB
Government of India
Department of Personnel & Training
(Public Enterprises Selection Board)
***
Block No. 14, C.G.O Complex, Lodhi Road
New Delhi-110003
Dated: 25-11-2022
NAME OF THE CPSE Indian Oil Corporation Ltd.
NAME OF THE POST Director (Finance)
DATE OF VACANCY 03-10-2022
SCHEDULE OF THE CSPE Schedule A.
SCALE OF THE POST Rs. 180000-340000 (IDA)
I. COMPANY PROFILE
Indian Oil Corporation Limited (IOCL) was incorporated in
1964 by merging Indian Refineries Limited with Indian Oil
Company under the Indian Companies Act, 1956. The main
objectives of IOC are to serve the national interests in oil and
related sectors in accordance and consistent with the policies of
Government of India; to ensure continuous and smooth supplies
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of petroleum products and to enhance country's self-sufficiency
in oil refining and build expertise in laying of crude oil and
petroleum product pipelines.
Indian Oil Corporation Limited (IOCL) is an integrated oil and
gas major engaged in the core activities of Refining, Pipeline
transportation, Marketing of petroleum, petrochemicals and
natural gas, manufacturing of petrochemicals and Exploration
& Production of crude petroleum and Gas. The Company is
also engaged in alternate energy and has a strong R&D focus.
Indian Oil Corporation Limited (IOCL) is a schedule - 'A'
Maharatna PSE in petroleum sector with the administrative
jurisdiction of Ministry of Petroleum & Natural Gas.
The company employed 31254 regular employees ( Executives
17929, Non-executives 13325) as on 31.03.2022.
Its Registered and Corporate Offices are at Mumbai and New
Delhi respectively.
The authorised and paid up capital of the Company were Rs.
15000 crore and Rs. 9414.16 crores respectively as on
31.03.2022.
The shareholding of the Government of India in the company is
51.50% as on 31.03.2022.
II. JOB DESCRIPTION AND RESPONSIBILITIES
Director (Finance) is a member on Board of Directors and
reports to Chairman and Managing Director. He/She is overall
incharge of finance, accounts and funds management of the
organization and is responsible for evolving and formulating
policies relating to finance and accounts as well as
implementation thereof.
III. ELIGIBILITY
1. AGE : On the date of occurrence of vacancy (DOV)
Age of superannuation 60 years
Internal Others
Minimum Maximum Minimum Maximum
45 2 years residual 45 3 years
service as on residual
the date of services as on
vacancy w.r.t. the date of
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the date of vacancy w.r.t.
superannuation. the date of
superannuation
2. EMPLOYMENT STATUS:
The applicant must, on the date of application, as well as on the
date of interview, be employed in a regular capacity - and not
in a contractual/ad-hoc capacity - in one of the followings:-
(a) Central Public Sector Enterprise (CPSE) (including a full-
time functional Director in the Board of a CPSE);
(b) Central Government including the Armed Forces of the
Union and All India Services;
(c) State Public Sector Enterprise (SPSE) where the annual
turnover is *Rs 10,000 crore or more;
(d) Private Sector in company where the annual turnover is *Rs
10,000 crore or more.
Preference would be given to candidates from listed
Companies.
(* The average audited annual turnover of three financial years
preceding the calendar year in which the post is advertised
shall be considered for applying the approved limits)
3. QUALIFICATION:
(i) The applicant should be a Chartered Accountant or Cost
Accountant or a full time MBA/PGDM course with
specialization in Finance with good academic record from a
recognized University/Institution. Preference would be given to
Chartered Accountant.
(ii) Officers of Organized Group „A‟ Accounts Services [i.e.
Indian Audit and Accounts Service, Indian Defence Accounts
Service, Indian Railway Accounts Service, Indian Civil
Accounts Service, Indian P&T Accounts & Finance Service and
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Indian Cost Accounts Service] working in the appropriate level
are exempted from these educational qualifications.
(iii) Further, applicants from the Central Govt./Armed Forces
of the Union/All India Services, will also be exempted from the
educational qualifications as per (i) above provided the
applicants have „the relevant experience‟ as mentioned in Para
4(iii) below.
In respect of applicants from Organized Group „A‟ Accounts
Services/Central Government/Armed Forces of the Union/All
India Services, Chartered Accountant/Cost
Accountant/MBA/PGDM will be a desirable educational
qualification."
34. The undisputed facts of the case further reveal that the Appellant
being aggrieved by the decision of Respondent No. 1 made several enquiries
from the Institute of Cost Accountants of India (ICAI) seeking a clarification
and raising concern in respect of preferential treatment being given to
Chartered Accountants, however, the Appellant did submit his application
for the post of Director (Finance) on 05.01.2023. The Appellant/ Petitioner
before the learned Single Judge stated categorically that he is fulfilling the
requisite qualification prescribed for the post of Director (Finance). The
Appellant also brought to the notice of the Respondent No. 1, the judgment
delivered in the case of Geeta Sharma Vs. Public Enterprises Selection
Board & Anr., 2022 SCC Online Del 3600 and contended that the Hon'ble
High Court has taken a view that preference given to a Chartered
Accountant is an added advantage, and the question of granting preference
to Chartered Accountant would arise if they were otherwise equally placed
as the Appellant in all other aspect.
35. The facts further reveal that a notification was issued on 10.03.2023
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shortlisting the candidates. The details of shortlisting candidates notified
vide notification dated 10.03.2023 is reproduced as under:
"
Sr. Candidate Name Designation
No.
1. Mr. ED, Indian Oil
Chandrasekaran Corporation Ltd.
Shankar
Tennankore
2. Mr. Saurav Mitra ED, Indian Oil
Corporation Ltd.
3. Mr. Arvind Acharya ED, Indian Oil
Corporation Ltd.
4. Mr. Rajeev Mohan Chief General
Manager, Indian Oil
Corporation Ltd.
5. Mr. Anuj Jain Chief General
Manager, Indian Oil
Corporation Ltd.
6. Mr. Sanjay Kumar Chief General
Manager, Indian Oil
Corporation Ltd.
7. Mr. Vinod K ED, Hindustan
Petroleum Corporation
Ltd.
8. Mr. S Balachandar Chief General
Manager, Hindustan
Petroleum Corporation
Ltd.
9. Mr. Sudhanshu General Manager,
Kumar Electronics Corporation
of India Ltd.
10. Mr. S Sampath Chief General
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Manager, GAIL (India)
Ltd.
11. Mr. Shubhadeep General Manager
Sen (Finance & Accounts)
& CFO, Gujarat Urja
Vikas Nigam.
"
36. The Appellant categorically stated that he does not object to
shortlisting of candidate at serial no. 1, 2 and 4 as they comply with all the
pre-requisites as laid down in JD dated 25.11.2022, the Petitioner further
stated that he was not having any objection for shortlisting of the candidates
at serial nos. 7 to 11 as they were external and sectoral candidates.
However, in respect of remaining candidates, namely, Anuj Jain at serial no.
5, Sanjay Kumar at serial no. 6, he raised a serious objection that they have
been shortlisted only because they are Chartered Accountants ignoring the
claim that the Appellant is a Cost Accountant and he is senior.
37. The learned Single Judge during the pendency of the present Writ
Petition granted an interim order on 22.03.2023 and directed the
Respondents to consider the Appellant also in the shortlist of candidates and
to permit him to appear in the interview scheduled on 24.03.2023 for the
post of Director (Finance). The order dated 22.03.2023 is reproduced as
under:
"1. Petitioner is a Cost Accountant and joined the office of
Respondent No. 2/Indian Oil Corporation Limited in 1994.
After earning promotions from time to time, he is currently
holding the post of Chief General Manager (Corporate Finance
& Treasury).
2. Respondent No. 1 published an Advertisement/Job
Description inviting applications for the post of Director
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(Finance) in Respondent No. 2 Company. It is the case of the
Petitioner that he fulfils all necessary pre-requisite
qualifications, experience etc. prescribed in the Job Description
and yet did not find place in the list of shortlisted candidates
released vide Notification dated 10.03.2023. Challenge in the
present writ petition is to the „qualification‟ clause added in the
Job Description qua the post of Director (Finance) in CPSEs
whereby preference has been given to Chartered Accountants
over Cost Accountants.
3. By this application, Petitioner seeks permission of the Court
to appear for interview scheduled on 24.03.2023. Counsel for
the Petitioner contends that if the Petitioner is not permitted to
participate in the interview, petition will be rendered
infructuous.
4. Issue notice.
5. Ms. Manisha Agrawal Narain, learned Central Government
Standing Counsel accepts notice on behalf of Respondents No.
1 and 3.
6. Mr. S. Sirish Kumar, learned counsel accepts notice on
behalf of Respondent No. 2.
7. Having heard the learned counsels for the parties and in
order to balance the equities, this Court deems it appropriate at
this stage to permit the Petitioner to appear in the interview
scheduled on 24.03.2023 for the post of Director (Finance). It
is made clear that participation of the Petitioner in the
interview will be subject to final outcome of the writ petition
and will not create any equity in his favour. Respondents shall
permit the Petitioner for the interview, without prejudice to
their rights and contentions in the present writ petition.
8. The result of the Petitioner shall be placed in a sealed cover
and will not be given effect to, till the next date of hearing.
9. Application is allowed and disposed of in the aforesaid
terms.
W.P.(C) 3259/2023
10. Counter affidavits be filed within a period of two weeks
from today.
11. Rejoinders, if any, be filed within a period of one week
thereafter.
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12. The matter will be taken up for final hearing as Item No. 1
after the supplementary list on 21.04.2023."
38. In the aforesaid order, the learned Single Judge has also observed that
the outcome of the interview shall be subject to final outcome of the Writ
Petition and pursuant to the interim order passed by the learned Single
Judge, the Appellant did appear before this Interview Board and the
recommendations were kept in sealed cover.
39. The Learned Single Judge again passed another interim order dated
25.05.2023 directing the Respondent No. 1 to open the sealed cover and
declare the result of the interview. The copy of the aforesaid order is
reproduced as under:
"1. Respondent No.6 has been served and appears in person.
He submits that he does not want to file any response to the writ
petition.
2. By an order dated 22.03.2023, this Court had permitted the
Petitioner to appear in the interview scheduled on 24.03.2023
for the post of Director (Finance) in order to balance the
equities. It was however made clear that participation of the
Petitioner in the interview will be subject to final outcome of
the writ petition and will not create any equity in his favour. It
was directed that the result of the Petitioner shall be placed in
a sealed cover and will not be given effect to till the next date of
hearing.
3. Learned counsels for the Respondents submit that the post of
Director (Finance) is an important position in the CPSE and
the interim order is causing a prejudice as the appointment is
on a hold and therefore they seek vacation/variation of the
order so that the process can be completed and appointment
can be made to the said post.
4. Learned counsel for the Petitioner, on the other hand,
submits that he has no objection to the order being varied
permitting the official Respondents to declare the result of the
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Petitioner so that process of appointment is not stalled,
however, the appointment be made subject to the outcome of the
writ petition with a further direction that no equity will be
created in favour of the Appointee.
5. The Court entirely agrees with the submission made by
learned counsels for the parties. It is not in the interest of either
party that the process of appointment is put on hold and it also
cannot be overlooked that Director (Finance) is an important
position in the CPSE.
6. Accordingly, order dated 22.03.2023 is varied and the
official Respondents are granted permission to open the sealed
cover and declare the result of the Petitioner. Needless to state
that in case the Petitioner is successful, he shall be appointed
without prejudice to the rights and contentions of the parties to
the writ petition. However, if any other candidate is appointed,
his/her appointment will be subject to the outcome of the writ
petition and the Appointee shall not claim any equity on the
basis of the appointment, since the question of eligibility of the
Petitioner for shortlisting is subjudice before this Court.
7. List for final hearing on 19.07.2023.
8. Written submissions, if any, be filed by the parties before the
next date of hearing."
40. The Respondents pursuant to the aforesaid direction of the learned
Single Judge have declared the result of the Appellant and as per the same,
the Appellant was not selected for the post in question. The Appellant as he
was not selected in the process of interview was still aggrieved by the
condition prescribed in the advertisement which granted preference to
Chartered Accountants over and above the Cost Accountants.
41. The Appellant being aggrieved of not being selected for the post of
Director (Finance) is challenging the policy decision by which preference
has been given to Chartered Accountants over Cost Accountants in the
process of selection in CPSE. It is needless to mention that the PESB,
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keeping in view Part-B of Chapter-2 of Department of Personal and Training
(DoPT) Guidelines dated 29.08.2017 in consultation with relevant Ministers
decides the job description which includes educational qualifications
keeping in view the function and requirement of the post for that Company.
42. As per the above stated guidelines, the policies related to Board Level
appointments are formulated by concerned authority keeping in mind the
current needs and situation. The PESB took a conscious decision and a
decision of expert committee of the Government cannot be interfered with
except if the decision is arbitrary or the Constitutional Committee is
improper (See: Dr Prasannanshu Vs. Selection Committee or Vice
Chancellor, National Law University, Delhi & Anr., W.P.(C.) No.
5497/2020 of Delhi High Court; Dalpat Abasahed Solunke and Others Vs.
Dr. BS Mahajan and Others, 1990 SCC (L&S) 80; National Institute of
Mental Health and Neuro Sciences Vs. Dr. K. Kalyana Raman and
Others, AIR 1992 SC 1806 and Hanmath Ashok Vs. State of Telangana,
WA No. 260/2021).
43. The decision of the committee to give preference to Chartered
Accountants over Cost Accountants has been taken by the expert committee.
A Cost Accountant is a professional who is responsible for ensuring that
money spent by Company is spent in well planned manner. They oversee
expense reports, analyze data in respect of purchases or the incurred costs
relating to goods and services received from the vendors and to make
recommendation about cost-efficiency, whereas a Chartered Accountant is
responsible for the financial management of a business. The job and
responsibility of Chartered Accountant include management of finance and
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accounts of the Company, inventory management, income tax, compliance
under CARO, accounting and audit standard assurance etc. The Chartered
Accountants are responsible for managing budgets, undertaking financial
audits, providing financial advice, liaising with clients, individuals and
business, analyzing risk, advising on tax planning and maintaining
accounting records and prepare accounts information.
44. The Director (Finance) has the responsibility of overall in charge of
finance, accounts and funds management of the organization and is also
responsible for evolving and formulating policies relating to finance and
accounts as well as implementation thereof. Therefore, the conscious
decision was taken to give preference to Chartered Accountants to promote
all aspects of finance, accounts and funds management of the CPSEs and
also to enable CPSEs to formulate policies which optimize the well-being of
their business, finance and accounts. Hence, there is rational nexus between
the basis of classification and the object intended to be achieved.
45. In the considered opinion of this Court, there is no arbitrariness in the
preference clause as argued by the learned counsel for the
appellant/petitioner for the appointment of the Director (Finance).
46. Another important aspect is that the policy decision dated 19.08.2021
which has been brought on record by the Appellant has not been challenged
by the Appellant under the relief clause. Therefore, in the considered
opinion of this Court, the decision of the expert committee is not an arbitrary
decision and therefore, does not warrant any interference by this Court.
47. The aim and object of the PESB is the selection and placement of
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person in the post of Chairman, Managing Director or Chairman-cum-
Managing Director (Level-I) and functional Director (Level-II) in CPSEs as
well as in post of any other level as may be prescribed by the Government.
48. The PESB is governed by the internal guidelines and guidelines of
DoPT as notified/published from time to time. It is an independent Board
and came into existence on 30.08.1974. The PESB is assigned to carry out
the process of selection keeping in view the DoPT's resolution dated
03.03.1987. Thus, it is the Board which is competent to revise educational
qualification/qualifications for the post of Director (Finance) and the same
was done on 19.08.2021 by giving preference to Chartered Accountants over
Cost Accountants and the decision by PESB dated 19.08.2021 is applicable
to all CPSEs.
49. The Post of Director (Finance) in IOCL was advertised on
25.11.2022. The last date for receipt of application was 16.01.2023 and the
Appellant herein was a Cost Accountant. It is true that he was not
shortlisted in the process of selection, however, the fact remains that he was
included as a shortlisted candidate on account of an interim order passed by
this Court. The shortlisting has been done by the Respondents keeping in
view the eligibility prescribed for the post in question as well as DoPTs
guidelines dated 29.08.2017.
50. In response to vacancy circular No. 131/2022, 41 applications were
received, and 11 candidates were shortlisted for the post of Director
(Finance) and the Appellant was neglected in the list of shortlisted
candidates. On account of interim order passed by this Court the appellant
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was allowed to appear for further process of selection i.e., for interview.
The Appellant in spite of the fact that he was treated as a shortlisted
candidate on account of interim order passed by this Court was not selected
based upon the interview which took place, and therefore, in the considered
opinion of this Court once the Appellant has not been able to prove his
worth in the process of selection, he is not entitled for any relief whatsoever
and the learned Single Judge was justified in dismissing the writ petition.
51. Learned Counsel for the Appellant has vehemently argued before this
Court that the denial of opportunity to him and the process of selection are
violative of Article 14 and 16 of the Constitution of India. In the considered
of this Court, Article 16 of the Constitution of India permits reasonable
classification based on intelligible differentia, and the Hon'ble Supreme
Court in the case of State of State of Mysore and Another Vs. P. Narasinga
Rao, (1968) 1 SCR 407 in paragraph 4 held as under:
"4. The relevant law on the subject is well settled. Under Article
16 of the Constitution, there shall be equality of opportunity for
all citizens in matters relating to employment or appointment to
any office under the State or to promotion from one office to a
higher office thereunder. Article 16 of the Constitution is only
an incident of the application of the concept of equality
enshrined in Article 14 thereof. It gives effect to the doctrine of
equality in the matter of appointment and promotion. It follows
that there can be a reasonable classification of the employees
for the purpose of appointment or promotion. The concept of
equality in the matter of promotion can be predicated only
when the promotees are drawn from the same source. This
Court in dealing with the extent of protection of Article 16(1)
observed in General Manager, Southern Rly. v. Rangachari
[1962 (2) SCR 586, 596] :
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"Thus construed it would be clear that matters relating
to employment cannot be confined only to the initial
matters prior to the act of employment. The narrow
construction would confine the application of Article
16(1) to the initial employment and nothing else; but that
clearly is only one of the matters relating to employment.
The other matters relating to employment would
inevitably be the provision as to the salary and periodical
increments therein, terms as to leave, as to gratuity, as to
pension and as to the age of superannuation. These are
all matters relating to employment and they are, and
must be, deemed to be included in the expression
„matters relating to employment‟ in Article 16(1)....
This equality of opportunity need not be confused with
absolute equality as such. What is guaranteed is the
equality of opportunity and nothing more. Article 16(1)
or (2) does not prohibit the prescription of reasonable
rules for selection to any employment or appointment to
any office. Any provision as to the qualifications for the
employment or the appointment to office reasonably fixed
and applicable to all citizens would certainly be
consistent with the doctrine of the equality of
opportunity; but in regard to employment, like other
terms and conditions associated with and incidental to it,
the promotion to a selection post is also included in the
matters relating to employment, and even in regard to
such a promotion to a selection post all that Article 16(1)
guarantees is equality of opportunity to all citizens who
enter service.... In this connection it may be relevant to
remember that Article 16(1) and (2) really give effect to
the equality before law guaranteed by Article 14 and to
the prohibition of discrimination guaranteed by Article
15(1). The three provisions form part of the same
constitutional code of guarantees and supplement each
other. If that be so, there would be no difficulty in
holding that the matters relating to employment must
include all matters in relation to employment both prior,
and subsequent, to the employment which are incidental
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to the employment and form part of the terms and
conditions of such employment."
The argument was stressed on behalf of the respondent that
success in the SSLC examination had no relevance to the post
of tracer and the tracers of the erstwhile State of Hyderabad
who were allotted to the new State of Mysore were persons
similarly situated and there was no justification for making a
discrimination against only some of them by creating a higher
pay scale for tracers who had passed the SSLC examination. It
was contended for the respondent that all the tracers who were
allotted to the new State of Mysore were persons who were
turning out the same kind of work and discharging the same
kind of duty and there was no rational basis for making two
classes of tracers, one consisting of those who had passed the
SSLC examination and the other consisting of those who had
not. In our opinion, there is no justification for the argument
put forward in favour of the respondent. It is well settled that
though Article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation. When
any impugned rule or statutory provision is assailed on the
ground that it contravenes Article 14, its validity can be
sustained if two tests are satisfied. The first test is that the
classification on which it is founded must be based on an
intelligible differentia which distinguishes persons or things
grouped together from others left out of the group; and the
second test is that the differentia in question must have a
reasonable relation to the object sought to be achieved by the
rule or statutory provision in question. In other words, there
must be some rational nexus between the basis of classification
and the object intended to be achieved by the statute or the rule.
As we have already stated Articles 14 and 16 form part of the
same constitutional code of guarantees and supplement each
other. In other words, Article 16 is only an instance of the
application of the general rule of equality laid down in Article
14 and it should be construed as such. Hence, there is no denial
of equality of opportunity unless the person who complains of
discrimination is equally situated with the person or persons
who are alleged to have been favoured, Article 16(1) does not
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bar a reasonable classification of employees or reasonable
tests for their selection. It is true that the selective test adopted
by the Government for making two different classes will be
violative of Articles 14 and 16 if there is no relevant connection
between the test prescribed and the interest of public service. In
other words, there must be a reasonable relation of the
prescribed test to the suitability of the candidate for the post or
for employment to public service as such. The provisions of
Article 14 or Article 16 do not exclude the laying down of
selective tests, nor do they preclude the Government from
laying down qualifications for the post in question. Such
qualifications need not be only technical but they can also be
general qualifications relating to the suitability of the candidate
for public service as such. It is therefore not right to say that in
the appointment to the post of tracers the Government ought to
have taken into account only the technical proficiency of the
candidates in the particular craft. It is open to the Government
to consider also the general educational attainments of the
candidates and to give preference to candidates who have a
better educational qualification besides technical proficiency of
a tracer. The relevance of general education even to technical
branches of public service was emphasised long ago by
Macaulay as follows: "Men who have been engaged, up to one
and two and twenty, in studies which have no immediate
connection with the business of any profession, and the effect of
which is merely to open, to invigorate, and to enrich the mind,
will generally be found, in the business of every profession,
superior to men who have, at eighteen or nineteen, devoted
themselves to the special studies of their calling. Indeed, early
superiority in literature and science generally indicates the
existence of some qualities which are securities against
viceindustry, self-denial, a taste for pleasures not sensual, a
laudable desire of honourable distinction, a still more laudable
desire to obtain the approbation of friends and relations. We,
therefore, think that the intellectual test about to be established
will be found in practice to be also the best moral test that can
be devised." (Hansard, Series, 3 CXXVIII, 754, 755)
In our opinion, therefore, higher educational qualifications
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such as success in the SSLC examination are relevant
considerations for fixing a higher pay scale for tracers who
have passed the SSLC examination and the classification of two
grades of tracers in the new Mysore State, one for matriculate
tracers with a higher pay scale and the other for non-
matriculate tracers with a lower pay scale is not violative of
Articles 14 or 16 of the Constitution."
52. The learned Single Judge based upon the aforesaid judgment as well
as after placing reliance upon the judgment delivered in the case of T.R.
Kothandaraman and Others v. T.N. Water Supply & Drainage Board and
Others, (1994) 6 SCC 282, has arrived at a conclusion and has rightly held
that the nature of job does permit the Government to prefer better qualified
persons if the job entails the work to be handled specifically by a person
having specific qualification. The learned Single Judge has rightly placed
reliance upon a judgment delivered in the case of Chhattisgarh Rural
Agriculture Extension Officers Assn. v. State of M.P., (2004) 4 SCC 646
and Govt. of W.B. v. Tarun K. Roy, (2004) 1 SCC 347.
53. In the considered opinion of this Court the Cost Accountant and
Chartered Accountant are not at all similarly placed as argued by the
Appellant before this Court. They are governed by two independent statutes,
and it is for the employer to arrive at a conclusion in respect of
qualifications for posts, keeping in view the nature of job for which the
advertisement has been issued. In the present case, the experts have formed
an opinion to give preference to Chartered Accountants over Cost
Accountants, and, therefore, the decision taken by the Respondents cannot
be treated as arbitrary or violative of the Article 14 and 16 of the
Constitution of India as argued by the Appellant.
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54. It is reiterated that this Court by an interim dated 22.03.2023 had
permitted the Appellant to participate in the process of selection and has
gone to the extent by including him in the list of shortlisted candidates and
the Appellant has not been able to prove his worth in the process of selection
means he has not been finally selected and, therefore, in light of the
judgment delivered in the case of Om Prakash Shukla Vs. Akhilesh Kumar
Shukla, 1986 Supp SCC 285, Madan Lal and Others Vs. State of J&K and
Others, (1995) 3 SCC 486, the Appellant cannot be permitted to challenge
the rules of game after the game is over. The Appellant did apply for the
post in question with open eyes and he was not shortlisted in the first stage
however this Court directed the Respondent No.1 to permit the Appellant to
participate in the process of interview and in the process of interview, he has
not been selected finally, and, therefore, as he has participated in the entire
process of selection and has not been able to prove his worth, the learned
Single Judge was justified in dismissing the writ petition.
55. The prescription of qualification for a particular post is the sole
domain of the employer/expert bodies. The Court cannot substitute its view
in place of the view taken by the expert bodies which is based upon
deliberation, thorough research and with application of mind. The nature of
job, the duties and responsibilities of particular qualification for a post is the
sole domain of the employer/authorities who are empowered to carry out the
process of selection, and, therefore, in the considered opinion of this Court,
in respect of policy matters, the question of interference by a Court in
exercise of its powers under Article 226 of the Constitution of India does not
arise. The Hon'ble Supreme Court has time and again held that the scope of
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judicial review accorded to a Court does not extend to excessively
questioning the policy decisions of the Government, unless they are
arbitrary, discriminatory or are based on irrelevant considerations. (See:
State of Orissa and Others v. Gopinath Dash and Others, (2005) 13 SCC
495)
56. The Hon'ble Supreme Court has taken a similar view in the case of
Centre for Public Interest Litigation v. Union of India, (2016) 6 SCC 408
and State of Maharashtra and Another v. Bhagwan and Others, (2022) 4
SCC 193.
57. The Hon'ble Supreme Court in a large number of cases has held that
unless a policy decision taken by the Government is demonstrably
capricious or arbitrary or if it suffers from the vice of discrimination or
infringes any statute or provisions of the Constitution, the same cannot be
interfered with.
58. In the considered opinion of this Court, the policy decision taken by
the experts, keeping in view the executive instructions issued by DoPT on
the subject, does not fall within the realm of judicial interference in any
manner. (See: Krishnan Kakkanth v. Govt. of Kerala and Others, (1997) 9
SCC 495; Food Corpn. Of India and Others v. Bhanu Lodh and Others,
(2005) 3 SCC 618; Govt. of Orissa v. Haraprasad Das and Others, (1998) 1
SCC 487; State of Orissa and Others v. Bhikari Charan Khuntia and
Others, (2003) 10 SCC 144; Delhi Pradesh Registered Medical Practioners
v. Director of Health Services Admn. Services and Others, (1997) 11 SCC
687)
59. In the considered opinion of this Court, the learned Single Judge was
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justified in dismissing the writ petition and no case for interference with the
Impugned Judgment is made out in the instant appeal.
60. In view of the above, the present LPA stands dismissed.
SATISH CHANDRA SHARMA, CJ
SANJEEV NARULA, J.
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