Himachal Pradesh High Court
Ankush vs State Of Hp & Others on 8 August, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
( 2024:HHC:6649 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Execution Petition No. 14 of 2024 with connected Execution Petitions i.e. Exe.Petitions No.15, 109, 130, 132, 133, 134, 136, 137, 145, 237, 378, 380, 465, 553, , 625, 698 of 2024, 808 to 812 of 2024 Date of decision: 8th August, 2024.
1. State of HP & others Exe. Petition No. 14 of 2024 Ankush Versus ...Petitioner.
...Respondents.
2. Exe. Petition No. 15 of 2024 Punam Sharma ...Petitioner.
Versus
State of HP & others ...Respondents.
3. Exe. Petition No. 109 of 2024
Sapna Thakur ...Petitioner.
Versus
State of HP & others ...Respondents.
4. Exe. Petition No. 130 of 2024
Kamal ...Petitioner.
Versus
State of HP & others ...Respondents.
5. Exe. Petition No. 132 of 2024
Anil Kumar ...Petitioner.
Versus
State of HP & others ...Respondents.
6. Exe. Petition No. 133 of 2024
Som Dutt ...Petitioner.
Versus
State of HP & others ...Respondents.
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7. Exe. Petition No. 134 of 2024
Madan Lal ...Petitioner.
Versus
.
State of HP & others ...Respondents.
8. Exe. Petition No. 136 of 2024
Akshat Bhaskar ...Petitioner.
Versus
State of HP & others ...Respondents.
9. Exe. Petition No. 137 of 2024
Saroj Kumari ...Petitioner.
Versus
State of HP & others
r ...Respondents.
10. Exe. Petition No. 145 of 2024
Chuda Mani ...Petitioner.
Versus
State of HP & others ...Respondents.
11. Exe. Petition No. 237 of 2024
Vivek Thakur ...Petitioner.
Versus
State of HP & others ...Respondents.
12. Exe. Petition No. 378 of 2024
Dinesh Singh ...Petitioner.
Versus
State of HP & others ...Respondents.
13. Exe. Petition No. 380 of 2024
Pradeep Kumar ...Petitioner.
Versus
State of HP & others ...Respondents.
14. Exe. Petition No. 465 of 2024
Vikas ...Petitioner.
Versus
State of HP & others ...Respondents.
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15. Exe. Petition No. 553 of 2024
Durga Singh ...Petitioner.
Versus
.
State of HP & others ...Respondents.
16. Exe. Petition No. 625 of 2024
Rahul Verma & others ...Petitioners.
Versus
State of HP & others ...Respondents.
17. Exe. Petition No.698 of 2024
Bal Krishan & another
State of HP and others
Versus
......Petitioners
....Respondents.
18. Exe. Petition No. 808 of 2024
Vikas Bhardwaj ...Petitioner.
Versus
State of HP & others ...Respondents.
19. Exe. Petition No. 809 of 2024
Sudesh Kumar ...Petitioner.
Versus
State of HP & others ...Respondents.
20. Exe. Petition No. 810 of 2024
Rippu Daman ...Petitioner.
Versus
State of HP & others ...Respondents.
21. Exe. Petition No. 811 of 2024
Abhinay Katoch ...Petitioner.
Versus
State of HP & others ...Respondents.
22. Exe. Petition No. 812 of 2024
Atul Sharma ...Petitioner.
Versus
State of HP & others ...Respondents.
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Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Hon'ble Mr. Justice Ranjan Sharma, Judge.
.
Whether approved for reporting? Yes For the Petitioner(s). Mr. Ankush Dass Sood, Sr. Advocate with Mr. Rajneesh K. Lal, Advocate for petitioner(s) in Execution Petition (T) Nos. 14, 15, 130, 132, 133, 134, 136, 137, 145, 237, 465, and 553 of 2024.
Mr. Ankit Dhiman, Advocate for petitioner in Ex.Petition(T) No. 109 of 2024.
Mr. Bhuvnesh Sharma, Sr. Advocate with Mr.Parv Sharma, Mr.Shekhar Badola and Mr. Rahul Thakur, Advocate for petitioners in Exe. Petitions No.378 and 380 of 2024.
Mr. Sanjeev Bhushan, Sr. Advocate with Mr.Rajesh Kumar Advocate for petitioners in Exe. Petition No. 625 of 2024.
Mr. Abhumanyu Rathore, Advocate for petitioner in Execution Petition No.698 of 2024.
Ms. Reeta Hingmang Advocate for petitioner(s) in Execution Petition Nos.808 to 812 of 2024.
For the Respondents: Mr.Anup Rattan, Advocate General with Mr.Varun Chandel Additional Advocate General for respondents No.1 and 2/State in all petitions.
Ms. Suchitra Sen, Mr. Sanjeev Kumar Motta, Mr.Dikken Kumar, Mr.Rajinder Thakur and Mr.Angrez Kapoor, Advocates for respondent No.2-H.P. Staff Selecton Commission in all petitions.
::: Downloaded on - 08/08/2024 20:32:16 :::CIS 5 Exe.Petition No. 14 of 2024 andconnected matters ( 2024:HHC:6649 ) Vivek Singh Thakur, Judge These petitions, identical in nature, to be adjudicated on the basis of common questions of facts and law, are being decided by this .
common judgment.
2. On 25th July, 2024, the following order was passed:-
"In these Execution Petitions, issue related to the process of recruitment to the post of Junior Office Assistant (Information Technology) [in short JOA(IT) is involved.
2 Firstly, vide Advertisement No. 30 of 2015, on the basis of requisition sent by the State/Department, the Himachal Pradesh Staff Selection Commission had initiated the process for recruitment to the post of JOA(IT) by allotting Code 447 to the post. During said process, a dispute arose regarding the determination of eligibility with reference to one of essential qualification prescribed for the post in R&P Rules 2014 framed for the recruitment to the post of JOA(IT) which reads as under:-
"One year Diploma in Computer Science/Computer Application/Information Technology from a recognized University/Institution."
3 On approaching by one set of candidates, claiming them eligible, the Erstwhile H.P. State Administrative Tribunal had permitted them to participate in the process provisionally. During the pendency of petition, High Level Equivalence Committee was formed by the State and on the basis of the reports submitted by the said Committee, on 21.8.2017 the State Government directed the Commission to go ahead with recruitment process in terms of decision taken by Equivalence Committee. The aforesaid decision was subsequently approved by the Cabinet vide order dated 18.9.2017.
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4. During the interregnum another Advertisement dated 18.10.2016 was issued by the Commission on the basis of requisition sent by the State Government/Department to fill-up the same post i.e. JOA(IT) with the Post Code 556. During .
this recruitment process also, it was clarified by the State/Department vide communication dated 19.3.2018 sent to the Commission, that eligibility of candidates was to be determined on the basis of report of Equivalence Committee as clarification earlier issued vide communication dated 21.8.2017.
5. Vide Advertisement dated 21.9.2020, another process for recruitment to the same post ( Post Code 817) was initiated by the Commission on the basis of requisition sent by the State Government/Department. Some posts at the time of closure of recruitment process initiated vide Advertisement dated 18.10.2016 with Post Code 556, remained unfilled.
Those posts were also included in the Advertisement dated 21.9.2020.
6. Before initiation of the recruitment process vide Advertisement dated 21.09.2020, R&P Rules were modified and essential qualification in reference was modified by omitting the essential qualification in reference with following essential qualification:-
"(a) ESSENTIAL QUALIFICATION(S):
(i) Should have passed 10+2 from a recognized Board of School Education/University.
OR Matriculation from recognized Board of School Education with one/two year's Diploma/Certificate from an Industrial Training Institute (ITI) in Information Technology Enabled Sectors (ITES) as notified by Director General of Employment & Training (Govt. of India) from time ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 7 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) to time or three years Diploma in Computer Engineering/Computer Science/IT from Polytechnic as approved by All India Council for Technical Education (AICTE);"
.
7 Petitioners herein in these Execution Petitions had applied to the post in reference advertised through second Advertisement No. 32-3/2016 dated 18.10.2016 with Code 556 [JOA(IT)]. During this process, vide Notification dated 23.9.2019 final result on the basis of objective test etc. was declared by the Commission wherein names of petitioners were not there amongst selected candidates. On enquiry, they were informed that their applications were rejected for want of valid qualification for the purpose of appointment to the post in reference. The said rejection was assailed by petitioners by filing Original Application(s) before the Erstwhile H.P. State Administrative Tribunal, which on abolition of Erstwhile H.P. State Administrative Tribunal, were registered as CWPOA. One such CWPOA No.20 of 2019 came for consideration before learned Single Judge and on the basis of material on record, learned Single Judge had held that act of respondents-Commission declaring the petitioners to be ineligible for consideration to the post in issue was highly arbitrary and bad with observation that there was no material placed on record by the Commission to substantiate that diplomas possessed by the petitioners or the Institutions from which diplomas have been gained by petitioners are eight bad or not recognized especially when the respondents-Commission was in possession of diplomas of petitioners. The CWPOA No. 20 of 2019 was allowed on 19.03.2021 with following operative portion:-
"14 In these circumstances, the act of the respondent-Commission of holding the petitioners to ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 8 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) be ineligible for consideration to the post in issue, is highly arbitrary.
15. Accordingly, this writ petition is allowed to the extent that rejection of the candidature of petitioners .
by respondent-Commission is held to be bad and respondent-Commission is directed to reassess the candidature of petitioners, for the post in issue on the basis of merit secured by them in the recruitment process. In case, the petitioners are eligible for appointment, then the same be offered to them against unfilled/vacant post, without disturbing the rappointed candidates......."
8 Other similar petitions were also decided on the same line. The judgment in some case were assailed by Commission/State by filing LPAs, whereas in some cases no LPA was preferred. Some LPAs preferred by Commission/State were dismissed vide judgment dated 31.12.2021 passed by the Division Bench in CWP No. 3894 of 2021 titled Reena Kumari vs. State of HP and others with connected matters. Thereafter, pending CWPOAs and LPAs were decided in terms of judgment dated 31.12.2021 passed in Reena Kumari's case.
9 It is apt to record that there was another set of petitioners who, being aggrieved by process/criteria adopted by the respondent-Commission to determine the eligibility on the basis of above referred unamended essential qualification provided in R&P Rules 2014, had approached the Court and writ petitions preferred by them were also connected with aforesaid Reena Kumari's case. All those petitions/LPAs were related to recruitment process initiated ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 9 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) by the Commission to the post of JOA(IT) under Code 447 in the year 2015 and under Code 556 in the year 2016. 10 The Division Bench, in its common judgment dated 31st December, 2021 had passed following directions:-
.
"33. Thus, the HPSSC is directed to re-cast the merit list for JOA 556 by including all categories of candidate as was done for JOA 447 on the basis of decision of Government dated 21.8.2017/18.9.2017 and further made applicable to JOA 556 vide communication 19.3.2018 except the candidates with higher qualification, who have already been held ineligible vide judgment dated 29.8.2019 of a Division Bench of this Court in CWP 161/2019. These selections for JOA 556 shall be made by taking into account the entire number of vacancies advertised for JOA 556 and the decision of the Government/HPSSC to close the selection procedure for JOA 556 is set aside and quashed.
34. Since the Common R&P Rules stand amended by 2020 Rules and the cause of persistent confusion for the time being appears to have been removed, as a necessary consequence selection for JOA 817 shall take place in accordance with 2020 Rules, however, the selection process shall not include the selection for posts which were left over from advertised posts of JO 556 as the said posts have already been directed to be filled through selection process of JOA 556.
35. In view of above discussion and directions, all the petitions considered herein are decided accordingly."
11 LPAs 41/2021, 42/2021, 43/2021, 62/2021, 63/2021,64,2021,70/2021, 71/2021, 117/2021 to 126/2021 filed by HPSSC or/and the State Government were also dismissed. Vide above referred common judgment dated 31.12.2021 and the judgments passed by learned Single Judge were upheld subject to modification that directions issued in said judgments shall be read in consonance with the directions issued hereinabove by this Court.
::: Downloaded on - 08/08/2024 20:32:16 :::CIS 10 Exe.Petition No. 14 of 2024 andconnected matters ( 2024:HHC:6649 ) 12 Aforesaid judgment dated 31st December, 2021 was assailed by one Ankita Thakur by the selected and appointed candidates which was decided by the Supreme Court vide judgment dated 9th November, 2023 passed in Civil Appeal .
No. 7602 of 2023 (@SLP(C ) No. 730/2022) titled Ankita Thakur vs. HP Staff Selection Commission along with connected Civil Appeals No. 7603 of 2023 (@SLP (C ) No.729/2022), 7604 of 2023 (@SLP(C ) No.4321/2022), 7605 of 2023 (@SLP (C ) No.9977/2022) and 7606 of 2023 (@SLP(C ) No.17676/2022). Operative portion of said judgment reads as under:
"44. Upon consideration of the rival submissions and having regard to: (a) that appointments were made r after taking written and computer typing test of the candidates; (b) that there is no specific allegation of nepotism or mala fides in making such appointments; (c) that nature of the post does not require a high degree of technical skill; (d) the length of period during which the appointments have continued; and (e) that there is no clarity whether such appointees were duly served with notice of the proceeding before the High Court, or whether a specific challenge was laid to their eligibility individually, we are of the considered view that even if such appointments were made taking aid of the relaxation order dated 21.08.2017, it would not be in the interest of justice to disturb those appointments made under the first advertisement (Post Code 447).
As regards adjustment of the appellants (i.e., petitioners in SLP (C) No. 4321 of 2022) against vacancies that might have arisen subsequent to appointment against the advertised vacancies is concerned, in our view, it would not be appropriate as those vacancies would have to be filled after a fresh advertisement and in accordance with the extant Rules.
45. In light of the aforesaid discussion and conclusion, we direct / order as under:
(i) The relaxation / clarificatory order dated 21.08.2017, as approved by the State cabinet on 18.09.2017, being after the last date fixed ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 11 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) by the advertisements dated 13.02.2015 (i.e., for Post Code 447) and dated 18.10.2016 (for Post Code 556) for receipt of applications from candidates, is not legally sustainable qua those posts (i.e., Post Codes 447 and 556), .
particularly, when no opportunity was afforded to similarly placed persons, who might have been left out, to apply and compete with those candidates who, though not eligible as per the terms of the advertisement, had applied thereunder;
(ii) The direction(s) contained in paragraphs 33 and 34 of the impugned judgment of the High Court setting aside the closure of the selection process for Post Code 556 and to re-cast the merit list as well as fill up remaining posts of Post Code 556, with the aid of relaxation/ clarification dated 21.08.2017/ 18.09.2017 read with communication dated 19.03.2018, after segregating it from those advertised as Post Code 817, are set aside. In consequence,
(a) the merit list prepared under the second advertisement for Post Code 556 shall not be re-drawn by including such candidates who, though not eligible, became eligible pursuant to relaxation / clarificatory order dated 21.08.2017 / 18.09.2017 read with com-
munication dated 19.03.2018; and (b) there shall be no segregation of seats advertised under the third ad- vertisement dated 21.09.2020 for Post Code 817. Thus, recruitment for Post Code 817 shall be strictly in accordance with the extant Rules (i.e., 2020 Rules), as notified.
(iii) The appointments already made under the first advertisement (for Post Code 447) shall not be disturbed merely because some of the appointees may have gained eligibility based on the order of relaxation / clarification dated 21.08.2017, which was approved by the State cabinet.
46. All the appeals are disposed of in the aforesaid terms. Pending application(s), if any, are also disposed of. There is no order as to costs."
::: Downloaded on - 08/08/2024 20:32:16 :::CIS 12 Exe.Petition No. 14 of 2024 andconnected matters ( 2024:HHC:6649 ) 13 Petitioners had and have approached this Court by filing these Execution Petitions with claim that judgment passed by learned Single Judge directing the Commission to re-assess the candidature of petitioners on the basis of merit .
secured by them in the recruitment process related to the Post Code 556, which was affirmed by the Division Bench vide judgment dated 31st December, 2021 has not been interfered with or modified by the Supreme Court, and further that issue involved in other petitions filed with reference to essential qualification referred supra contained in Rules 2014 was related to determination of candidature with reference to report of Equivalence Committee and thus the direction of learned Single Judge, affirmed by Division Bench, has neither been assailed nor interfered by the Supreme Court and therefore, direction to re-assess their candidature on the basis of merits secured by them is in existence and enforceable and therefore, it has been prayed that respondents-Commission be directed to re-asses the candidature of petitioners and in case they are found eligible and in merit, appointment be offered to them against the vacancies advertised in the year 2016 with Post Code 556. 14 It is the claim of petitioners that judgment passed by learned Single Judge in their favour was upheld by the Division Bench with modification that same shall be subject to directions passed by the Division Bench in judgment dated 31st December, 2021 and the Supreme Court vide judgment dated 9th November, 2023 passed in Civil Appeal No. 7602 of 2023 and connected appeals has not disturbed the findings and directions passed by learned Single Judge but has only set aside the directions passed by the Division Bench in paras 33 and 34 of the judgment dated 31st December, 2021 however without touching and disturbing the direction passed ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 13 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) by learned Single Judge to re-assess the candidature of petitioners.
15 It has been submitted that claim of petitioners is not based on relaxation/clarificatory order dated 21st August, .
2017, which was approved by the State Cabinet on 18.9.2017 and was reiterated vide commuication dated 19.3.2018 during the process to fill-up the posts with Code
556. It has been submitted that their claim is independent of aforesaid relaxation/clarificatory order but against the arbitrary rejection of their candidature without affording them opportunity and considering the ineligible candidates eligible to the Post Code 556 and, therefore, it has been prayed that Commission be directed to re-assess the candidature of petitioners in terms of judgment passed by learned Single Judge.
16 Plea of the petitioners is that in their matters there was and is no SLP preferred in these cases and relief granted to them by learned Single Judge, affirmed by the Division Bench was altogether different than the issue raised before the Supreme Court in Civil Appeal No. 7602 of 2023 and other connected Civil Appeals.
17 It has been also submitted that as per Advertisement dated 21.9.2020, vacancies notified under Code 817 are subject to increase or decease and therefore, no one has vested right to claim appointment by referring number of post as mentioned in Advertisement or Corrigendum issued subsequently as number advertised posts under Code 817 has already altered by the State/Commission by increasing and deceasing the same by issuing Corrigendum on account of fresh requisition and withdrawal of requisition by the Department/State.
::: Downloaded on - 08/08/2024 20:32:16 :::CIS 14 Exe.Petition No. 14 of 2024 andconnected matters ( 2024:HHC:6649 ) 18 Some of the Execution Petitions, seeking implementation of judgment passed by Learned Single Judge, directing the Commission to re-assess the eligibility of the candidates, have been disposed of by Learned Single .
Judge, directing to implement the judgment within a period of 12 weeks. The said direction has not been assailed by anyone. Operate portion of one of such order, passed in Execution Petition (T) No.2 of 2024, titled as Amit Kumar Sharma v. State of Himachal Pradesh, reads as under:-
"3. Having heard learned counsel for the petitioner as also learned Advocate General and learned counsel for respondent No.2, as now the State Government is bound to implement the directions passed by this Court, as affirmed by Hon'ble Supreme rCourt of India in Para-45 of its judgment, therefore, this Execution Petition is disposed of by directing the respondents to implement the same within a period of twelve weeks. In case, needful is not done, then the petitioner shall be at liberty to file an application for revival of these proceedings. Pending miscellaneous applications, if any, stand disposed of."
19 In aforesaid backdrop, after hearing the parties for considerable time as agreed in order to resolve the issue involved in present petitions, it is considered appropriate that Himachal Pradesh Rajya Chayan Aayog, Hamirpur, shall reassess the eligibility of the Execution Petitioners, in whose favour, there is judgment passed by Learned Single Judge to reassess the eligibility along with merit, by giving them opportunity of personal hearing on 27.07.2024 and decide the same by passing a speaking and reasoned order and thereafter report of such exercise be placed before this Court on 30.07.2024.
20 Learned counsel for the petitioners in all Execution Petitions, pending or decided, have undertaken to ensure presence of the Execution Petitioners in the Office of ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 15 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) Administrative Officer of Himachal Pradesh Rajya Chayan Aayog, Hamirpur, on 27.07.2024 at 11:00 a.m. 21 In case, some candidate(s) for valid reasons, is/are unable to attend the Office of Administrative Officer of the .
Himachal Pradesh Rajya Chayan Aayog, Hamirpur, on aforesaid date, he/she may appoint/authorize in writing someone else to attend the Office along with original certificates of the petitioners on that day. 22 At this stage, it has been informed that some Writ Petitions filed in the year 2019 along with the already decided matters, to which present Execution Petitions relate, are pending adjudication. In case in aforesaid writ petitions, identical claim and issue is involved and petitioners herein have approached the Court immediately after their rejection within reasonable time, then, Himachal Pradesh Rajya Chayan Aayog, Hamirpur, shall on approaching by such candidate(s) on the aforesaid date already fixed hereinabove, to re-assess their eligibility also in terms of direction passed by Learned Single Judge, in order to ensure finality of the dispute/lis in present litigation.
23 It has also been submitted that some similar Execution Petitions filed to implement identical direction, which are pending, have not been listed today before this Court. Petitioners in all such Execution Petitions, being similarly situated shall be given same treatment by the Himachal Pradesh Rajya Chayan Aayog, Hamirpur, on approaching the Aayog on aforesaid date.
24 It is clarified that aforesaid re-assessment of candidature shall be done with respect to only those candidates, who had or have filed writ petitions/Execution Petitions, which are either pending or have been disposed of by this Court.
::: Downloaded on - 08/08/2024 20:32:16 :::CIS 16 Exe.Petition No. 14 of 2024 andconnected matters ( 2024:HHC:6649 ) 25 Needless to say that eligibility is to be assessed on the basis of documents already on record with Himachal Pradesh Rajya Chayan Aayog and no document, which is not on record of the Himachal Pradesh Rajya Chayan .
Aayog, has to be taken into consideration."
3. In sequel to aforesaid order, learned Advocate General has placed on record communication No. HPSSC Ex.Pet.No.14/2024-598-602 received from the Administrative Officer of H.P. Rajya Chayan Aayog-cum-
Officer on Special Duty, Erstwhile H.P. Staff Selection Commission, Hamirpur H.P. along with list of cases in which eligibility of candidates has been re-assessed along with merit by giving them the opportunity of personal hearing on 27th April, 2024.
4 As per the aforesaid communication, candidature of 68 candidates has been re-assessed by H.P. Rajya Chayan Aayog (in short "HPRCA" and separate orders have been issued in all cases with finding that candidature of all these petitioners was rightly rejected by the Erstwhile H.P. Staff Selection Commission.
5 It has been further submitted that it was also found that that the candidates in CWP No. 2654 of 2019 failed to find a place in the zone of consideration during documents evaluation in prescribed ratio of 1:3 and as such, their issue was not identical to other petitioners and, therefore, their candidature was not re-assessed by HPRCA.
6 It has been submitted by learned Advocate General, as also recorded in Office Order issued by Aayog that as per Clause 2(i) of H.P. Takniki Shiksha Board Regulations,1993, a "Private Institution" means an ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 17 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) Institution imparting Technical Education, Vocational and Industrial Training and is run and managed by a private body affiliated to H.P. Takniki Shiksha Board (hereinafter referred as Board) with further submission that in May, .
2017, HPSSC Hamipur had obtained list of Institutions recognized by the Board, and the Institutes wherefrom petitioners completed relevant course and submitted the certificates obtained from such Institutions to HPSSC, have not been found in the said list of recognized Institutions and, accordingly, their candidature has been rejected with respect to selection process to the post of JOA(IT) Post Code 556.
7 In Execution Petition No. 237 of 2024, objections-cum-reply to order dated 29.7.2024, issued by Officer on Special Duty, Erstwhile H.P. Staff Selection Commission-cum-Administrative Officer HPCRA Hamirpur, has been filed. The other petitioners have also endorsed the same for objecting even dated orders passed on 29.7.2024 in their respective cases rejecting their candidature.
8 According to aforesaid objections/reply, the reasoning given in order for rejecting the candidature of petitioners is in direct conflict to the matter already settled before learned Single Judge and upheld by the Division Bench, and further that the ground on which the candidature of petitioners has been rejected, was never a point in issue before the Apex Court. Further, the rejection order demonstrates that said order has been passed with pre-conceived mind, to mislead the Court by making statement that order passed by Court stands complied with. It has been submitted in objections that finding in order 29.7.2024 that diplomas/certificates ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 18 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) submitted by petitioners were obtained from unrecognized Institutions, for not finding place in list of Institutions given affiliation by the Takniki Shiksha Board is not sustainable, because as per information supplied by the Board, .
under Right to Information Act, upto the year 2016, the said Board did not offer affiliation to any Institute for conducting one year DCA, DCS, DIT Courses. Further that as per information supplied by the Board, no list of affiliated Institutions was ever supplied by the Board to HPSSB or HPRCA and, therefore, the ground on which candidature of petitioners has been rejected is not sustainable.
9 It has been alleged that by taking assistance from the judgment passed by the Apex Court, the Commission/Aayog has become more wiser and has placed reliance upon Clause 2(1) of the H.P. Takniki Shiksha Board Regulations, 1993, which is not permissible.
10 It has been submitted that the Commission/Aayog has re-
opened the issue, which already stands considered and decided by learned Single Judge as rejection of candidature for want of diplomas from recognized Institution/University was held to be bad and arbitrary by learned Single Judge, but again Commission/Aayog has rejected the candidature of petitioners on the same ground despite the direction of learned Single Judge to re-assess the candidature of petitioners on merit and therefore, rejection of candidature on ground of eligibility for want of diplomas from recognized University or Institution is not sustainable being contrary to directions passed by the Court.
::: Downloaded on - 08/08/2024 20:32:16 :::CIS 19 Exe.Petition No. 14 of 2024 andconnected matters ( 2024:HHC:6649 ) 11 It has been further submitted that there were three alternatives of essential qualification having Clause (ii) with different requirements, in each alternative, which read as under:-
.
(ii) one year Diploma in Computer Science/Computer Application/Information Technology from a recognized University/Institution.
OR
(ii) 'O' or 'A' Level Diploma from National Institute of Electronics & Information Technology (NIELIT) OR
(ii) Diploma in Information Technology (IT) from a recognized ITI/Institution."
12 It has been submitted that Takniki Shikha Board was empowered to give affiliation/recognition to the Industrial Training Institute (ITI) or Institution for the Course or Diploma in Information Technology (IT) and, therefore, list of affiliated Institutions, if any, issued by the Takniki Shiksha Board, was pertaining to ITIs of Himachal Pradesh but not of the recognized University/Institutions referred in first set of essential qualification, category, whereas all petitioners were relying upon Courses or Diplomas in Computer Science/Computer Application/Information Technology from the University or Institutions referred in first set of educational qualification and Takniki Shiksha Board was not empowered to deal with such recognition.
13 It has been further submitted that information received from the Director Higher Education with respect to list of Institutions recognized by the Takniki Shiksha Board clearly depicts that Takniki Shiksha Board imparts ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 20 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) training only in ITI trade but not in the field of Computer Application/Computer Science/Information Technology and therefore, rejection of candidature of petitioners on the basis of such list is not .
sustainable.
14 It has been further submitted that R&P Rules 2014 have been amended now and requirement of education qualification to have Diploma in Computer Science/Computer Application/Information Technology from an Institution affiliated to recognized Board or University or from a deemed University or Institution has been replaced by suitable amendments, and such amendment has been carried out for the reason, as assigned in proposal for amendment, that there is no authority to recognize any Institution particularly private Institutions imparting training/issuing Diplomas in Computer Science, Computer Application and Information Technology.
15 Referring aforesaid, it has been contended that as there was no authority available to recognize the Institutions in Himachal Pradesh therefore, rejection for want of affiliation/recognition of the Institution from where petitioners have completed their respective relevant Courses is not sustainable, rather contrary to the essence of judgment/direction of learned Single Judge which has been upheld by the Division Bench and was never assailed in the Supreme Court.
16 It has been submitted that there is no list of Institutions available anywhere with any Authority dealing with Diplomas prescribed in first set of essential qualification.
::: Downloaded on - 08/08/2024 20:32:16 :::CIS 21 Exe.Petition No. 14 of 2024 andconnected matters ( 2024:HHC:6649 ) 17 It has been submitted that certificates/Diplomas submitted by petitioners to the Commission/Aayog are self-explanatory as these Diplomas have been provided by the Institutes either having ISO certification or .
registration under the Act of 1969, Department of Labour and Employment, Government of H.P. or approved by the Ministry of Corporate Affairs Government of India under the Companies Act, 1956 or registered with Ministry of Micro, Small and Medium Enterprises Government of India, or other Authorities prescribed for registration of such Institutes and, therefore, observation/finding returned by Commission/Aayog that Diplomas of petitioners were not from recognized Institutes is not correct. It has also been advocates that petitioners have completed their Courses under Pradhan Mantri Kaushal Vikas Yojna (PMKVY) and the Institutes have imparted education/training of Courses under the said Scheme of Central Government and therefore, the Diplomas of petitioners should have been treated valid for determining their candidature/eligibility to the post concerned.
18 It has also been contended that this Court being Executing Court has the power, to adjudicate all issues raised by petitioners being relevant for determining the controversy between the parties, as provided in Section 47 of Code of Civil Procedure.
19 It has been further contended that some of petitioners are having higher qualification in the same subject in which Diploma was warranted under R&P Rules including graduate and post-graduate ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 22 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) Courses/Diploma/Degree in the Computer Application, Computer Science and Information Technology but their candidature has also been rejected.
20 In Execution Petition (T) No.14 of 2024, titled Ankush vs. State .
of HP, an additional objection has been filed with submission that Ankush had obtained two diplomas in Computer Application from two different Institutions in two different Sessions, with further submission that there is no bar under law to do the same Courses twice from two different Institutions in two different Sessions and it has been further submitted that though diplomas obtained by him have the same nomenclature but two Institutions offered the skill development in different subjects which is apparent from the marks sheets of both Diplomas placed on record of the case as well as Commission/Aayog. It has been contended that Ankush was having more marks in Diploma obtained from the Institution in Himachal Pradesh and, therefore, initially he had submitted the said diploma on the date of document verification, but after order passed by the Court on 28 th August, 2018, in CWP No. 1964 of 2018 titled Akshay Kumar vs. State of HP, Ankush had made a representation to Commission to consider his Diploma in Computer Application from Calorx Teachers' University, Ahmadabad, Gujarat which is a recognized University. The said representation of petitioner, submitted in August, 2018, was duly considered by the Commission/Aayog and the assessment of marks obtained by him was done on the basis of Diploma of Calorx Teachers' University and, therefore, rejection of his candidature on the basis of Diploma of Institute of Himachal ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 23 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) Pradesh but ignoring the Diploma from recognized University is not sustainable.
21 It has also been contended on behalf of petitioners that .
candidates, who have been already appointed to the post under Code 556 were also not having Diplomas from the recognized Universities/Institutions and some of them were possessing higher qualification instead of essential qualification provided in R&P Rules, and therefore, petitioners are also entitled to be considered to be eligible on the same analogy or appointment of all such candidates deserves to be quashed.
22 It has also been contended that in absence of any competent Authority to grant affiliation/recognition in Himachal Pradesh to the Courses being run by private Institutions under the Central Government Scheme i.e. Pradhan Mantri Kaushal Vikas Yojna, (PMKVY) the R&P Rules providing essential qualification of Diplomas from recognized University or Institution are bad and therefore, petitioners should not be made to suffer for no fault on their part.
23 It has also been submitted that direction passed by learned Single Judge is to be understood in reference to his intention as evident from the discussion/findings recorded before issuing the direction by learned Single Judge.
24 Learned Advocate General has placed on record communication dated 23rd May, 2017 sent from the Principal Secretary to the Government of H.P. to the Director of Higher Education, Himachal pradesh which was supplied to the Commission/Aayog by the Education Department ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 24 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) giving the details of Institutions granted affiliation by the Takniki Shiksha Board. He has also placed on record the list of approved Institutes by the Takniki Shiksha Board in the years 2014, 2015 for imparting Diplomas in .
various Courses. He has also placed list of AICTE approved Institutions (2015-16) as on 30th April, 2015.
25 Learned Advocate General has submitted that information received by one of the petitioners or on behalf of petitioners from the Takniki Shiksha Board informing that no list had been supplied by the Takniki Shiksha Board to the Selection Board/Commission in the year 2017 is also correct because list of affiliated Institutions was not supplied by the Takniki Shiksha Board but was provided by the Education Department to the Selection Commission/Aayog and thus, it is wrong to say that there was no list available with Selection Commission/Aayog for verifying the recognition/affiliation of Institutions wherefrom petitioners had completed their Courses.
26 It has been further submitted by learned Advocate General that in the case of Ankush, the re-assessment of his candidature has been done on the basis of certificate submitted by him along with application before the last date of submission of application i.e. 18.10.2016 whereas certificate of Calorx Teachers' University has been submitted by him in August, 2018 and despite the fact that marks were awarded to him on the basis of certificate of Calorx Teachers' University, his candidatures cannot be considered on the basis of the said certificate for not deposited/submitted along with application before the last date of receiving the application, and further that ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 25 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) said petitioner (Ankush) is responsible for rejection of his candidature for negligence on his part by submitting the certificate/Diploma obtained from unrecognized University/Institution with application and withholding the .
Diploma/certificate obtained from Calorx Teachers' University.
27 In judgment dated 9th November, 2023 passed by the Supreme Court in Civil Appeal No. 7602 of 2023 titled Ankita Thakur vs. H.P. Staff Selection Commission in Para No.23, seven issues were formulated for consideration, and issue No.6 therein was related to holding of qualification higher than the qualification prescribed under the Rules, which reads as under:-
"(vi) Whether candidates holding qualification other than the one prescribed by the 2014 Rules or the advertisement, though allegedly higher, could be considered eligible?"
28 After taking into consideration the judgment of the Supreme Court in Zahoor Ahmad Rather & others vs. Sheikh Imtiyaz Ahmad and Ors. reported in (2019)2 SCC 404 the Apex Court has held as under:-
"38. In the light of the law above, since we find that there exists no provision in the extant Rules or the advertisement to treat any other qualification as higher or equivalent to the one specified therein, the claim of such candidates, who could not demonstrate that they held the prescribed essential qualifications, is liable to be rejected and has rightly been rejected by the High Court as well. Issue No. (iv) is decided accordingly."::: Downloaded on - 08/08/2024 20:32:16 :::CIS 26 Exe.Petition No. 14 of 2024 and
connected matters ( 2024:HHC:6649 ) 29 The directions passed by learned Single Judge are to be read in the light of circumstances noticed by learned Single Judge, which read as under:-
.
"12. In the considered view of this Court, even if the contention of the respondent-Commission that it contests the eligibility of the petitioners on the basis of report of the Committee has to be accepted, then also the respondent-Commission was duty bound to have had passed some kind of order in the case of petitioners, holding the qualification possessed by petitioners, to be an invalid qualification. This admittedly was not done. In the absence of same and further in the absence of any competent authority having held that the Institutions, from which petitioners had obtained the diplomas, were unrecognized or the diplomas of petitioners were unrecognized, the candidature of petitioners could not have arbitrarily rejected, as has been done by the respondent- Commission.
13. In fact, no material has been placed on record by the respondent-Commission to substantiate that the diplomas possessed by petitioners or the institutions, from which the diplomas have been gained by petitioners, are either bad or not recognized, especially as the respondent-Commission was in possession of the diplomas of the petitioners.
14. In these circumstances, the act of the respondent- Commission of holding the petitioners to be ineligible for consideration to the post in issue, is highly arbitrary."
30 In aforesaid background, learned Single Judge has directed to re-assess the candidature of petitioners, for the post in issue on the basis of merits secured by them in the recruitment process with further clarification ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 27 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) that in case, petitioners are eligible for appointment, then same be offered to them against un-filled vacant posts without disturbing the appointed candidates. Therefore, at the time of re-assessing the candidature, eligibility .
was also to be considered, in addition to the merit secured by petitioners and appointment was to be offered to them subject to eligibility but without disturbing the appointed candidates.
31 In Execution Petition, this Court has to ensure the execution of order/direction of Court in reference. So far as the validity of essential qualification provided in R&P Rules is concerned, that was neither assailed before learned Single Judge nor such issue has been decided by learned Single Judge or is a part of direction passed by learned Single Judge and, therefore, being the Executing Court, we cannot consider and decide the issue raised on this count in these Execution Petitions.
32 In judgment passed in Civil Appeal No. 7602 of 2023, the Supreme Court has also protected the appointment already made. From the information available on record and submissions made by and on behalf of petitioners, it is apparent that the appointment of already selected candidates was also not under challenge before learned Single Judge in petition(s) in reference in present Execution Petitions nor there is any direction of learned Single Judge in this regard, rather learned Single Judge has also directed not to disturb the candidates already appointed.
33 The registration/certification/approval of Institute under Labour and Employment Department of Himachal Pradesh, Companies Act or MSMSE Department or any other Authority is not relevant because eligibility ::: Downloaded on - 08/08/2024 20:32:16 :::CIS 28 Exe.Petition No. 14 of 2024 and connected matters ( 2024:HHC:6649 ) is to be considered on the basis of essential qualification prescribed under R&P Rules and unless or until the petitioners are able to establish affiliation/recognition of the University/Institute from where they completed .
the Courses/Diplomas, referred in R&P Rules, from the competent Authority/Department/University, they cannot claim their eligibility on the basis of affiliation/approval/registration which is ir-relevant with reference to essential qualification prescribed in R&P Rules.
34 Amendment of R&P Rules in the year 2020 also does not create any right in favour of petitioners to consider them eligible for the post advertised under Code 556 prior to amendment because their eligibility is to be tested on the basis of R&P Rules in vogue at the relevant point of time.
35 It is also apt to record that petitioners have not placed on record any material so as to establish that Institution wherefrom they completed Courses/Diplomas were affiliated by competent Authority or they completed the Courses/Diplomas from recognized University/Institution.
Certificates/Diplomas placed on record also do not indicate recognition/affiliation of University or competent Authority.
36 In view of aforesaid discussion, we do not find any merit in the objections. Considering the submissions by learned counsel for parties and material placed before us, all petitions are closed and disposed of including all pending miscellaneous application(s), if any.
(Vivek Singh Thakur), Judge.
8th August, 2024. (Ranjan Sharma),
(ms) Judge.
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