Himachal Pradesh High Court
Rahul Verma vs Himachal Pradesh Board Of School ... on 23 September, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No. 136 of 2019 Reserved on : 18.9.2020 Date of Decision: 23.09.2020 .
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Rahul Verma ...... Petitioner
Versus
Himachal Pradesh Board of School Education and others .......Respondents
--------------------------------------------------------------- ---------------------------- Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for report? Yes.
-------------------------------------------------------------------------------------------- For the Petitioner: Mr. Kunal Verma, Advocate, through video conferencing.
For the Respondents: Mr. Diwakar Dev Sharma, Advocate, for r respondent No.1, through video Conferencing.
Mr. Dilip Sharma, Senior Advocate with Mr. Manish Sharma, Advocate, for respondent No.2, through video-conferencing
-------------------------------------------------------------------------------------------------- Sandeep Sharma, Judge Pursuant to Notification/ Advertisement dated 21.7.2016 (Annexure A-3), issued by respondent No.1, petitioner as well as respondent No.2 applied for the post of Computer Hardware Engineer in respondent-department (respondent No.1). Perusal of notification/advertisement dated 21.7.2016 (Annexure A-3) reveals that persons possessing following qualifications could apply for the post in question:-
"Essential qualification (1) Should have passed 10+2 examination or its equivalent from a recognized Board/ University.::: Downloaded on - 23/09/2020 20:19:47 :::HCHP 2
(2) B.E./B.Tech in Electronic from & telecommunication/I.T. a recognized University with at least 5 years experience in computer Manufacturing/Maintenance Company or repute. (3) Preference will be given to candidate with .
M.Tech in Electronic Degree.
Desirable Qualification Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh."
2. Record reveals that the petitioner and respondent No.2 having possessed B.Tech in Electronic and M.Tech in Electronic, respectively, from the recognized University applied for the post in question, but fact remains that respondent No.2 came to be selected against the post in question, as is evident from notification (Annexure A-3) on contract basis and since then she has been continuously rendering her services. During the proceedings of the case, it has been informed that respondent No.2 now otherwise stands regularized in the respondent-department in term of regularization policy framed by the State of Himachal Pradesh.
3. Being aggrieved and dissatisfied with the selection of respondent No.2, petitioner approached the erstwhile H.P. Administrative Tribunal by way of Original Application No.1561 of 2017, which now stands transferred to this Court and re-registered as CWPOA No.136 of 2019, praying therein following reliefs:-
(i) That the impugned selection and appointment of respondent No.2 may be held illegal and quashed and set aside.::: Downloaded on - 23/09/2020 20:19:47 :::HCHP 3
(ii) That the decision of the respondent No.1 to show the respondent No.3 in the waiting list at Sr. No.2 may also be held illegal and quashed.
(iii) That the applicant being possessing the essential qualification and illegally ignored by the respondent .
No.1 by selecting respondent No.1 and showing the respondent No.2 in the waiting list, may be ordered to be appointed as Computer Hardware Engineer with all consequential benefits.
4. Precise case of the petitioner is that since respondent No.2 did not possess requisite qualification, she could not have been given preference over him being M.Tech in Electronic/ I.T., especially when she did not have any experience in Computer Manufacturing/ Maintenance from the Company of repute.
5. I have heard learned counsel representing the parties and gone through the record.
6. Question which falls for consideration/adjudication in the present proceedings before this Court is that "whether respondent No.2 being M.Tech in electronic/I.T., could have been given preference over the petitioner despite her having no experience in Computer Manufacturing/ Maintenance from the Company of repute" and "whether respondent-department had any power to relax the condition of the experience while selecting respondent No.2 against the post in question. Before exploring answer to the aforesaid questions, it is relevant to mention here that case at hand was earlier heard on 24.8.2020 by this Court when none appeared on behalf of respondent No.2 and as such, this Court on the basis of the material available on record quashed and set-aside the selection of respondent No.2 with ::: Downloaded on - 23/09/2020 20:19:47 :::HCHP 4 further direction to the respondent-Board to engage the petitioner against the post in question being next in line. However, immediately after passing of aforesaid judgment, learned counsel representing respondent No.2 informed this Court that since his name did not figure .
in the cause list, he was unable to put in appearance and as such, he filed Review Petition, which came to be registered as Review Petition No.33 of 2020. Vide order dated 4.9.2020, this Court having taken note of the fact that name of Mr. Manish Sharma, Advocate did not figure in the cause list at the time of passing the judgment dated 24.8.2020, recalled the judgment dated 24.8.2020 and listed the matter for fresh hearing.
7. After passing of order dated 4.9.2020 in the review petition, matter came to be adjourned on three dates on the request of learned counsel representing the parties and during this period respondent No.2 filed his reply.
8. Today, before proceeding to hear the matter on merit afresh, this Court specifically enquired from the learned counsel representing the petitioner whether he wants to file any rejoinder to the reply filed by respondent No.2, but since learned counsel representing the petitioner specifically stated that no rejoinder is intended to be filed, matter came to be heard and decided finally vide judgment at hand.
9. Mr. Diwakar Dev Sharma, learned counsel representing respondent No.1, contended that since respondent No.2 possessed degree of M.Tech in Electronic, she was given preference over the petitioner, who apart from having Bachelor's degree have/had five ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 5 years experience in Computer Manufacturing/ maintenance from the company of repute.
10. Having perused the essential qualification, as prescribed in the notification dated 21.7.2016 (Annexure A-3), this Court has no .
hesitation to conclude that candidate aspiring for the post of Computer Hardware Engineer on contract basis besides having B. Tech or M. Tech Degree in Electronic/I.T. ought to have possessed five years experience in Computer manufacturing/maintenance from a company of repute and as such if selection of respondent No.2 is tested on the touch stone of aforesaid condition, there appears to be force in the submission made by learned counsel for the petitioner that respondent-Board ought not have given preference to respondent No.2 over the petitioner merely on the basis of her higher education i.e .M.Tech in electronic. Essential qualification, as has been prescribed in the notification/advertisement dated 21.7.2016, nowhere suggests that person aspiring for the post in question should possess one of the qualification as provided under the column of essential qualification, rather he/she apart from having degree in B.Tech/ M.Tech in electronic should also possess experience of five years in Computer manufacturing/maintenance from a company of repute. Question of preference, if any, in terms of Clause-3 of essential qualification would arise when candidate claiming such preference was able to show that he/she is eligible to be considered for the post in question. Before claiming preference in terms of Clause-3, as provided in the column of essential qualification, candidate concerned is/was required to establish on record that he/she besides having B.Tech or M.Tech in ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 6 electronic and I.T. from the recognized University, also possesses five years experience in Computer manufacturing/ maintenance from a company of repute. Had both the petitioner and respondent No.2 possessed equal qualification i.e. B.Tech/M.Tech with requisite .
experience, respondent No.2 could have been given preference over the petitioner being M.Tech in terms of Clause-3 of essential qualification.
11. However, in the case at hand, reply filed by respondent No.2 reveals that she was not given preference on account of her higher education i.e. M.Tech in electronic, rather selection Board/ Interview Board having found her more meritorious selected her against the post in question. Mr. Dilip Sharma, learned Senior Counsel representing respondent No.2 while inviting attention of this Court to the Recruitment and Promotion Rules (for short R &P Rules) for the post of Computer Hardware Engineer in the Himachal Pradesh Board of School Education Dharamshala, contended that condition of age and experience in the case of direct recruitment is relaxable at the discretion of recruitment agency in case the candidate is well qualified. At this stage, it would be profitable to reproduce R& P Rules for the of the post of Computer Hardware Engineer herein:-
RECURITMENT AND PROMOTION RULES FOR THE POST OF COMPUTER HARDWARE ENGINEER IN THE HIMACHAL PRADESH BOARD OF SCHOOL EDUCAITON DHARAMSHALA.
(As per the Recruitment and promotion Rules, 2010 of Indira Gandhi National Open University and adopted in the Board meeting held on 18.07.2016 under item No.32)
1. Name of Post Computer Hardware Engineer
2. Number of Posts 01 or as determined by the Board from time to time.
3. Classification Class-1 ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 7
4. Scale of Pay `15600-39100 +5400 (Emoluments for contract employees `2100 P.M) (as per details given in Column 15-A)
5. Whether Selection Selection Post or Non-
selection
6. Age for direction Between 45 years and below.
recruitment .
Provided that the upper age limit for direction recruits will not be applicable to the candidates already in service of the Government/Board including those who have been appointed on adhoc or contract basis;
Provided further that if a candidate appointed on adhoc basis or contract basis had become over-age on the date he/she was appointed as such he/she shall not be eligible for any relaxation in the prescribed age limit by virtue of his/her such adhoc or contract appointment;
Provided further that upper age-limit is relaxable for Scheduled Caste/Scheduled Tribes/ Other categories of persons to be extent permissible under the general special order(s) of the Himachal Pradesh Government.
Provided further that the employee of all the Public Sector Corporation and Autonomous Bodies who happened to be Government Servants before absorption in Public Sector Corporation/ Autonomous Bodies at the time of initial constitution of such Corporation/ Autonomous Bodies shall be allowed age concession in direct recruitment as admissible to Government servants. This concession will not, however, be admissible to such staff of the Public Sector Corporation. Autonomous Bodies and who were/are finally absorbed in the service of such Corporation/ Autonomous Bodies after initial constitution of the Public Sector Corporation/ Autonomous Bodies.
(1) Age limit for direct recruitment will be reckoned on the first day of the year in which the post(s) is/are advertised for inviting application or notified to the employment Exchanges or as the case may be. (2) Age and experience in the case of direct recruitment, relaxable at the discretion of the ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 8 Recruitment Agency as the case may be, in case the candidate is otherwise well qualified.
7. Minimum educational and a) Essential:
other qualifications required for direct recruit(s). (i) B.E./B.Tech. Degree in Electronics & Telecommunication/ IT from a recognized University with at least .
5 years experience in computer
manufacturing/ maintenance
company of repute.
(ii) Preference will be given to
candidates with M.Tech. in
Electronic Degree.
b) DESIREABLE QUALIFICATION
Knowledge of customs, manners
and dialects of Himachal Pradesh
and Suitability for appointment in
the peculiar conditions prevailing in
the Pradesh.
8. Whether age and
Educational qualification(s)
prescribed for direct
recruit(s) will apply in the
case of promotes. Not applicable.
9. Period of Probation if any Two years subject to such further
extension for a period not
exceeding one year as may be
ordered by the competent authority
in special circumstances and
reasons to be recorded in writing.
10. Method of recruitment, 100% by Direct Recruitment on
whether by direct contact basis.
recruitment or by Every members of the service on
promotion, deputation/ contract basis be eligible for
transfer and the percentage regularization as per policy of
of vacancies to be filled in Government of Himachal Pradesh
by various methods. for regularization of contract
employees, of course, subject to
condition that his past record is
found satisfactory and his initial
appointment is in accordance with
these Rules.
11. In case of recruitment by Not applicable.
promotion, deputation/
transfer, grades from which
promotion/
deputation/transfer is to be
made.
12. If a Departmental Not applicable.
Promotion Committee
exists, what is its
composition?
13. Circumstances under which As required under the Law.
the HPPSC is to be
consulted in making
recruitment.
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9
14. Essential requirement for a A candidate for appointment to any direct recruitment. service or post must be a citizen of India.
15. Selection for appointment Notwithstanding anything contained to the post by direct in these Rules contract requirement on contract appointments to the post will be basis. made subject to the terms and conditions given below;-
.
(i) CONCEPT:
(a) Under this policy the Computer Hardware
Engineer in the office of HP Board of School Education will be engaged on contract basis initially for one year which may extendable for two more years on year to year basis.
(b) Provided that for extension /renewal of contract period on year to year basis, the Appointing Authority shall issue a certificate that the services and conduct of the contract appointee is satisfactory during the year and only then his period of contract is to be renewed/extended.
(c) The Candidate will be selected by advertising the vacant posts by the Recruitment Agency r decided by the Board.
(d) The selection will be made in accordance with the eligibility condition prescribed in these rules.
(ii) CONTRCTUAL EMOLUMENTS:
The Computer Hardware Engineer appointed on contract basis will be paid consolidated fixed contractual amount `21000/- per month (which shall be equal to initial of the pay scale+ Grade pay). A amount of `630/-(3% of minimum of the pay Band+ Grade Pay of the post) as annual increase in contractual emoluments for subsequent year(s) will be allowed if contract is extended beyond one year.
(iii) APPOINTING/DISCIPLINARY AUTHORITY The Chairman of the Board will be the appointing and Disciplinary Authority.
(iv) SELECTION PROCESS The Board will send the requisition to the concerned Recruiting Agency as decided by the Board.
(v) COMMITTEE FOR SELECTION OF CONTRACTUAL APOINTMENTS As may be constituted by the concerned recruiting agency as decided by the Board.
(vi) AGREEMENT ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 10 After selection of candidate he/she shall sign an agreement as per Annexure -"B" appended to these rules.
(vii) TERMS AND CONDITIONS
a) The contractual appointee will be paid fixed contractual amount `21000/- per month (which shall be equal to initial of the pay Scale +Grade Pay). The contract appointee will be entitled for .
increase in contractual amount of `630/-(3% of minimum of the pay Band+ Grade Pay of the post) for further extended years and no other benefits such as Senior/selection scales etc. will be given.
b) The services of the Contract Appointee will purely and temporary basis. The appointment is liable to be terminated in case the performance/conduct of the contract appointee is not found satisfactory.
c) Contract appointee will be entitled for one day causal leave after putting one month service. However, the contract employee will also be entitled for 135 days Maternity Leave and 10 day's Medical Leave and five days special leave. He/she shall not be entitled for Medical Re-imbursement and LTC etc. No leave of any other kind except r above is admissible to the Contract appointee.
Provided that the un-availed Casual Leave, Medical Leave and Special Leave can be accumulated up to Calendar year and will not be carried forward for the next calendar year.
d) Unauthorized absence from the duty without the approval of the controlling Officer shall automatically lead to the termination of the contract. However, in exceptional cases where the circumstances for unauthorized absence from duty were beyond his/her control on medical grounds, such period shall not be excluded while considering his/her case for regularization but the incumbent shall have to intimate the controlling authority in this regard well in time. However, the contract appointee shall not be entitled for contractual amount for this period of absence from duty.
Provided that he/she shall submit the certificate of illness/fitness issued by Medical Officer as per prevailing instructions of the Government.
e) An official appointed on contract basis who has completed three years tenure at once place of posting will be eligible for transfer on need based basis wherever recruited on administrative grounds.
f) Selected candidate will have to submit a certificate of his/her fitness from Government Hospital issued ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 11 by the Chief Medical Officer or other competent authority. In case of Women candidate, pregnancy beyond 12 weeks will render her temporarily unfit till the confinement is over. The women candidate prior to her joining should be re-examined for the fitness from an authorized Medical Officer/other competent authority.
g) Contract appointee will be entitled to TA/DA if .
required to go on tour in connection with his/her official duties at the same rate as applicable to regular counter- part officials at the minimum of the pay scale.
h) Provisions of service rules like FR, SR, Leave Rules, GPF Rules, Pension & Conduct rules etc, as are applicable in case of regular employees will not be applicable in case of contract appointees. They will be entitled for emoluments etc. as detailed in this Column.
16. Reservation The appointment to the service shall be subject to orders regarding reservation in the service for Scheduled Castes/Scheduled Tribes/ Other backward Classes/ other categories of persons issued by the Himachal Pradesh Government from r time to time.
17. Departmental Not applicable.
Examination
18. Power to Relax Where the Board is of the opinion that it is necessary or expedient to do so, it may by order for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class of category of persons of post(s).
12. Close scrutiny of aforesaid R& P Rules framed by respondent No.1 for the post of Computer Hardware Engineer clearly reveals that Recruiting Agency is /was well within its power to relax the condition of age and experience of the candidate, who is/was otherwise found to be well qualified. As per R& P Rules for the post in question, Computer Hardware Engineer in the respondent-Department is/was to be engaged on contract basis initially for one year, which is extendable for two years on year to year basis. Otherwise also, Rules, ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 12 as have been taken note hereinabove, nowhere deals with the regular appointments, rather same appears to have been framed for regulating the services of the candidate appointed on contract basis.
Clause -10 of the aforesaid Rules, clearly reveals that post of .
Computer Hardware Engineer is to be filled up by 100% direct recruitment on contract basis and as such, there is no dispute that Rules, as have been taken note hereinabove, are/were applicable for the post in question.
13. Reply filed by respondent No.1, if read in its entirety, reveals that since it was clearly mentioned in the advertisement dated 21.7.2016 that preference will be given to the higher professional /technical qualifications, respondent No.2 being M. Tech was preferred above the petitioner, who was B.E./B.Tech in telecommunication.
14. Reply filed by respondent No.2 as well as other material available on record clearly reveal that respondent No.2 secured 152 marks in total( 124 in written and 28 in interview), whereas petitioner secured 143 marks in total(118 in written and 25 in interview). Both petitioner and respondent No.2 secured 25 and 28 marks respectively, in interview out of 30 marks and even if 5 more marks are awarded to the petitioner in interview, he would not secure more marks than respondent No.2 and as such, there cannot be any dispute that academically respondent No.2 is more meritorious than the petitioner.
15. Though, there is neither any averment in the reply filed by respondent No.1 nor any material is available on record suggestive of the fact that respondent-Board recorded the reasons in writing while relaxing the condition of experience in the case of respondent No.2, ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 13 but it clearly emerge from the pleadings as well as documents available on record that Committee of expert constituted by respondent-Board for viva-voce and personal interview having found respondent No.2 more meritorious than other candidates, .
recommended her for appointment against the post in question.
16. Mr. Kunal Verma, learned counsel representing the petitioner argued that Notification dated 21.7.20016 (Annexure A-3), whereby respondent No.2 came to be appointed against the post of Computer Hardware Engineer, which is on contract basis, nowhere reveals that Interview Board having found her more meritorious or eligible, relaxed the condition of experience and as such, respondent No.2 at this stage cannot be allowed to draw benefit, if, any, of condition of relaxation contained in the R&P Rules.
17. Besides above, Mr. Kunal Verma, learned counsel representing the petitioner contended that otherwise also, there is/was no mention in the advertisement (Annexure A-3) that selection to the post in question would be in terms of R&P Rules and as such, condition, if any, of relaxation in age and experience, as provided under the Rules could not have been made applicable to the selection process initiated by respondent No.1 for the post in question vide advertisement dated 21.7.2016.
18. True, it is that Clause-18 of the R&P Rules, wherein power to relax has been provided to the respondent-Board, suggests that where the Board deems it necessary or expedient to relax any of the provisions of these Rules with respect to any class of category of persons of post(s), it may do so in writing by recording reasons. Mr. ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 14 Kunal Verma, learned counsel representing the petitioner argued that respondent No.1 in its reply has nowhere revealed that Recruiting Agency recorded reasons in writing while relaxing the condition of experience in favour of respondent No.2 and as such, selection of .
respondent No.2 cannot be said to be in terms of the R&P Rules.
19. True, it is that there is no mention, if any, in the advertisement that post in question would be filled up in terms of R&P Rules and condition of age and experience can be relaxed in case candidate otherwise is well qualified, but there cannot be any dispute that recruitment to the post in question could only be made in accordance with the Rules and as such, error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Malik Mazhar Sultan and another versus U.P. Public Service Commission and others, (2006) 9 Supreme Court Cases 507, wherein it has been held as under:-
"21, The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1.7.2001 and 1.7. 2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 15 only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."
.
20. By now it is well settled that whatsoever required by law must be read overridingly into every contract of employment. If Rules requires a particular qualification for a person to be employed against the particular post, such a requirement is must be read into the advertisement and to the contact of the employment. Statutory requirement under the Act/ Rules should be overridingly read in the advertisement and as such, even if advertisement did not specify that selection to the post in question would be made in terms of R& P Rules, it would not vitiate the selection process, if any, initiated/made on the basis of the advertisement, rather requirement contained under the Act and Rules must be overridingly read into the advertisement.
21. The Hon'ble Apex Court in Indian Institute of Technology and another versus Paras Nath Tiwari and others, (2006)9 Supreme Court Cases 670, has held as under:-
"11. We have been taken through the Rules in Parts VI, XII-B and XIII-A. These provisions relate to persons who privately own aircraft which are required to be kept in good repair, maintained and kept in good condition. Even such persons working as Maintenance Engineers have to be licensed by DGCA or the other authorities prescribed under the Act and the Rules, for obvious reasons. Whenever an aircraft files, there is danger to the lives of the persons flying in the aircraft as well as to the persons in the vicinity if the aircraft is not properly maintained as a result of which it crashes. Hence, there are stringent requirements under the Aircraft Act read with the Aircraft Rules ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 16 that the aircraft be maintained at all times in proper condition and certified to be airworthy in accordance with the Rules by the Maintenance Engineers holding licence in accordance with the Rules. That was the reason why the appellant Institute had called upon the first respondent to produce a licence of the .
requisite type from DGCA. This was exactly what was understood by the first respondent also, as evident from the correspondence between him and the appellant Institute.
12. Learned counsel for the respondent took up the stand that there was no obligation on the part of the first respondent to produce such a licence. He repeatedly contended that there was no such requirement indicated in the advertisement of the vacancy and, therefore, the respondent was not obliged to produce any such licence. We are unable to accept this contention. In the first place, as rightly contended by Mr. Ganguli, what is required by law must be read overridingly into every contract of employment. That the Rules require a licence for a person to be employed as Maintenance Engineer of an aircraft is clear, irrespective of whether the advertisement prescribed it or not. Such a requirement must be read into the advertisement and to the contract of employment. Apart therefrom, the letter of appointment in clear terms states (vide clause 4) that the first respondent was required to produce an AME licence for the requisite type of aircraft owned by the Institute. This was clearly understood by the first respondent, as seen from his correspondence wherein he did not deny such a requirement, but kept asking for time and extension of probation. The contention of the learned counsel for the first respondent is, therefore, without merit and cannot be accepted".
22. Another contention raised by learned counsel representing the petitioner that since respondent No.2 did not possess requisite qualification in terms of the advertisement, her selection deserves to be quashed has also no merit because anything prescribed in the advertisement dehors the Rules is bad in law. Since, as has been ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 17 discussed hereinabove, selection to the post in question was to be made on the basis of R& P Rules, which though provides five years experience alongwith education qualification, but also empowers Recruiting Agency to relax the condition of experience in the case of .
the candidate, who is otherwise eligible as such, selection of respondent No.2 cannot be held to be bad on the ground that she did not possess qualification as is/was provided in the advertisement. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Raminder Singh versus State of Punjab and another, (2016) 16 Supreme Court Cases 95, wherein it has been held as under:- r "24. The learned Counsel for the respondents, however, contended that the appellant did not possess the requisite qualifications that were necessary for the promotional post as prescribed in the advertisement and hence cancellation of the appellant's promotion was appropriate. We do not find any force in this contention.
25. As held supra, the appellant had fulfilled the necessary criteria prescribed in Rule 10. It was, in our view, sufficient compliance for the in- service candidate. Anything prescribed in the advertisement, which was dehors the Rules was bad in law".
23. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in Ranajit Kumar Meher versus State of Orissa and others, (2017) 4 Supreme Court Cases 568, wherein it has been held as under:-
"1. Leave granted. In the affidavit filed on 15.10.2013 by the Joint Director, Directorate of Animal Husbandry and Veterinary Sciences, Government of Odisha, it is stated that the petitioner does not have the qualification prescribed under the Orissa Non-Gazetted Veterinary Technical Services (Recruitment & Conditions of Service) Rules, 1983, as amended in the year 1997. The whole crux of the argument ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 18 of the learned counsel for the petitioner is that he possesses the qualification as per the advertisement issued on 16.01.2004.
2. Having heard the learned counsel appearing on both the sides, we are of the view that there cannot be any appointment in violation of the Rules. Qualification is to be seen with respect to the Rules and not the advertisement .
inviting applications. The appellant, admittedly, does not possess the qualification as prescribed under the Rules".
24. By now it is well settled that advertisement, which is contrary to the Statutory Rules has to give way to the statutory prescription. Though, in the case at hand advertisement in question did not contain/specify that Recruiting Agency has power to relax the condition of experience, but since same is prescribed under the statutory Rules i.e. R& P Rules, selection of respondent No.2 cannot be termed to be bad in law. Whenever there is variance in the advertisement and in the statutory Rules, it is the statutory rules which take precedence.
25. Reliance is placed upon the judgment rendered by Hon'ble Apex Court in Ashish Kumar versus State of Uttar Pradesh and others, (2018) 3 Supreme Court Cases 55, wherein it has been held as under:-
27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription.Thus, looking to the qualification prescribed in the statutory rules, appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitraryand illegal. It is well settled that when there is v ariance in the advertisement and in the statutory rules, it is statutory rules which take precedence. In this context, reference is made in judgment of this Court in the case of Malik Mazhar Sultan & Anr. Vs. U.P. Public Service Commission & Ors., 2006 (9) SCC 507. Paragraph 21 of the judgment lays down above proposition which is to the following effect:
"21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 19 within the age on 01.07.2001 and 01.07.2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisements but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age .
can be granted only of permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."
26. Since, this Court while placing reliance upon the various judgments (supra) rendered by Hon'ble Apex Court, has held that qualification prescribed under the statutory Rules take precedence to the qualification, if any, prescribed in the advertisement, no fault, if any, can be found with the action of Recruiting Agency inasmuch as it deemed it fit to grant relaxation of experience in the case of respondent No.2 having found her more meritorious than other candidates including the petitioner.
27. Once, there is no dispute in terms of the provisions contained in the R&P Rules that Recurring Agency could relax the condition of age and experience in case of candidate, who is otherwise found to be suitable, no right can be said to have accrued in favour of the petitioner merely on the ground that Recruiting Agency while relaxing the condition of experience failed to record the reasons in writing.
28. Leaving everything aside, petitioner neither has laid challenge to the aforesaid R&P Rules nor have alleged mala-fides, if any, against the members of the Interview Board, who selected ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 20 respondent No.2 being more meritorious. Apart from above, decision of the respondent- Board to grant relaxation in favour of respondent No.2 has not been challenged and as such, this court finds no legal basis to quash the appointment of respondent No.2 on the ground that .
Recruiting Agency while granting relaxation of the condition of experience failed to record the reasons. Since, bona-fides of the decision of the Board to select respondent No.2 by granting relaxation has not been laid challenge, appointment of respondent No.2 cannot be held to be irregular. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in case titled Arun Kumar and others versus Himachal Pradesh State Electricity Board and others, Civil Appeal No.6064 of 2010, decided on 21.3.2017, wherein it has been held as under:-
"9. We are unable to find any legal basis for the above finding. The fact remains that bona-fides of the decision of the Board to fill up the direct recruit quota for the promotees has not been challenged. Once a decision was taken by the Board to regularize the adhoc promotes against direct quota, there appointment could not be held to be irregular. They were promoted after following due procedure against existing vacancies. There is a specific provision in the Recruitment and Promotion Regulations for relaxation."
29. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in Karam Pal and others versus Union of India and others (1985)2 Supreme Court Cases 457, wherein it has been held as under:
"13.In Course of the hearing counsel for the petitioners referred to instances where a direct recruit coming into the cadre ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 21 several years after others coming into the cadre from the Select List had been assigned seniority over such promotees. This was explained by counsel for the respondents to have been the outcome of giving effect to clause (3) of Regulation 3 as it stood prior to December, 1977 without the proviso. The instances .
relied upon were found to be events prior to the introduction of the proviso. In the absence of challenge to the Rules and the Regulations, resultant situations flowing from compliance- of the same are not open to attack. Occasion for similar grievance would not arise in future as the proviso in the relevant regulation and clauses (4) and (5) of the Regulation 3 will now meet the situation."
30. Otherwise also, plain reading of Clause-18 i.e. power to relax as provided under the R&P Rules suggests that for the reasons to be recorded in writing, Board can exempt any class of category of persons of post(s), as defined in the Recruitment & Promotion Rules from the purview of various Rules by recording reasons in writing, but that does not mean that person, who is otherwise entitled to have relaxation in terms of provisions contained in the Rules cannot claim such relaxation till the time order of relaxation is not passed in that regard by the respondent-Board, rather decision, if any, with regard to relaxation of age and experience can be taken by the Interview /Selection Board constituted by the Recruiting Agency after having seen overall qualification and suitability of the candidate seeking relaxation. Since, R&P Rules itself provides relaxation of age and experience in the case of the candidate, who is otherwise well qualified, no specific reasons, if any, is /are required to be recorded by the Interview/Selection Board while extending the benefit of relaxation of experience in favour of respondent No.2. Otherwise also, Rules ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 22 providing for relaxation of age and experience as prescribed under the R&P Rules suggests that age and experience in the case of direct recruitment can be relaxed at the discretion of Recruitment Agency, whereas Clause-18, as has been taken note hereinabove, gives power .
to the Board to relax any of the provisions of R& P Rules with respect to any class of category of persons of post(s) for the reasons to be recorded in writing. Very intention of rule makers to give power of relaxation to Interview/Selection Board responsible for selecting the candidate against the post in question can be gathered from the word used in the Rules i.e. Recruiting Agency", especially when such power is read independent of power vested in Board under Clause-18. Use of word "Recruitment Agency' Clause-2 of R&P Rules itself suggests that decision with regard to relaxation of experience in the case of direct recruitment is to be taken by the Recruitment Agency i.e. body constituted for selection of candidate having taken note of other qualification of the candidate, who is otherwise well qualified. Once, there is /was no Rule requiring Interview Board to record reasons and in the absence of mala-fides attributed against the members of the Board, exemption granted in favour of respondent No.2 without recording reasons cannot be faulted with. Besides above, no mala-
fides, if any, have been alleged against the members of the interview/selection Board, who having found more qualified, relaxed the condition of experience in the case of respondent No.2.
31. Reliance is placed upon the judgment rendered by Hon'ble Apex Court in B.C. Mylarappa alias Dr. Chikkamylarappa versus Dr. R. ::: Downloaded on - 23/09/2020 20:19:48 :::HCHP 23 Venkatasubbaiah and others (2008) 14 Supreme Court cases 306, wherein it has been held as under:-
" 29.It is not in dispute that there is no rule or regulation requiring the Board to record reasons. Therefore, in our view, the High Court was not justified in making the observation that from the resolution of the Board .
selecting the appellant for appointment, no reason was recorded by the Board. In our view, in the absence of any rule or regulation requiring the Board to record reasons and in the absence of mala fides attributed against the members of the Board, the selection made by the Board without recording reasons cannot be faulted with'.
32. Consequently, in view of the above, the present petition is dismissed being devoid of any merit alongwith pending applications, if any.
(Sandeep Sharma)
23rd September, 2020 Judge
(shankar)
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