Himachal Pradesh High Court
Cwp No. 161/2019 vs State Of Hp And Others on 29 August, 2019
Bench: V. Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 161 of 2019 a/w .
CWP No. 629/2019.
Judgment reserved on 20.08.2019 Decided on: 29.08.2019
1. CWP No. 161/2019 Bhupender Sharma .....Petitioner.
Versus State of HP and others ......Respondents.
2. CWP No. 629/2019 Deepak Rana and others State of HP and others Versus .....Petitioners.
......Respondents.
Coram The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice. The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting? Yes.
For the petitioner(s): Mr. K. D. Shreedhar, Sr. Advocate with Ms. Shreya Chauhan, Advocate for the petitioner in CWP No. 161/2019.
Mr. Rajnish Maniktala, Sr. Advocate with Mr. Naresh Verma, Advocate, for the petitioners in CWP No. 629/2019.
For the respondents: Mr. Ashok Sharma, Advocate General with M/s. J.K. Verma, Ranjan Sharma, Ritta Goswami and Nand Lal Thakur, Additional Advocates General, for respondents No. 1 to 3 in CWP No. 161/2019 and for respondents No. 1 and 2 in CWP No. 629/2019. Mr. Angrez Kapoor, Advocate, for respondent No.4 in CWP No. 161/2019.
Mr. Bhuvnesh Sharma, Advocate, for respondent No. 5 in CWP No. 161/2019.
::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 2Mr. Ankush Dass Sood, Sr. Advocate with Mr. Rakesh Kumar Sharma, Advocate, for the interveners (CMP No. 2427/2019) .
Mr. Rajnish Maniktala, Sr. Advocate, with Mr. Naresh Verma, Advocate, for the interveners (CMP No. 2594/2019) Ms. Ranjana Parmar, Sr. Advocate with Mr. Karan Parmar, Advocate, for the interveners (CMP No. 2595/2019.
Mr. Sanjeev Kumar, Advocate, for respondent No. 3 in CWP No. 629/2019.
Mr. K.D. Shreedhar, Sr. Advocate with Mr. Kush Sharma, Advocate, for respondents No. 5 to 53 in CWP No. r 629/2019.
V. Ramasubramanian, Chief Justice.
Challenging a common order passed by the Himachal Pradesh State Administrative Tribunal (hereinafter referred to as 'the Tribunal') directing the competent Authority, namely the Himachal Pradesh Staff Selection Commission to make selections to the post of Junior Office Assistants (Post Code No. 556) strictly (i) in accordance with the Common Recruitment and Promotion Rules for the post of Junior Office Assistants (Information Technology), Class -III (Non-Gazetted) in various departments of the Government, and (ii) in consonance with the decision of the Supreme Court in Zahoor Ahmad Rather vs. Sheikh Imtiyaz Ahmad [(2019) 2 SCC 404], one candidate who claims to possess higher qualifications than those prescribed in the ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 3 Recruitment Rules, purportedly in the same field/discipline has come up with the first writ petition CWP No. 161/2019.
.
2. Challenging an interim order of status-quo passed on 26.2.2019 with regard to the issuance of appointment orders pursuant to the recommendations made by the Himachal Pradesh Staff Selection Commission in respect of the very same recruitment, a group of selected candidates have come up with
3. to the second writ petition CWP No. 629/2019.
In CWP No. 161/2019, a few individuals whose applications have been rejected on the ground that they had not acquired the technical qualifications from a recognized institute, have come up with an application for intervention.
4. Another set of candidates who claim to possess the qualifications exactly as prescribed by the Rules have also come up with an application for intervention in CWP No. 161/2019. A third group of candidates who do not want persons who have acquired the qualifications from un-recognized institutions to be considered for appointment have come up with the third intervention application in CWP No. 161/2019.
5. We have heard Mr. K. D. Shreedhar, learned Senior Counsel appearing for the petitioner in CWP No. 161/2019, Mr. Rajnish Maniktala, learned Senior Counsel appearing for the ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 4 petitioners in CWP No. 629/2019, Mr. Angrej Kapoor and Mr. Sanjeev Kumar, Advocates, appearing for the Himachal Pradesh .
Staff Selection Commission, Mr. Bhuvnesh Sharma, learned counsel appearing for the fifth respondent in CWP No. 161/2019 (who was the applicant before the Tribunal), Mr. Ashok Sharma, learned Advocate General for the State, and Mr. Ankush Dass Sood, learned Senior Counsel, Mr. Ranjana Parmar, learned Senior Counsel, and Mr. Rajnish Maniktala, learned Senior Counsel for the interveners in the Applications filed in CWP No. 161/2019.
6. The brief facts, out of which CWP No. 161/2019 arises, are as follows:
(i) By an advertisement bearing No. 32-3/2016 issued sometime in October, 2016, the Himachal Pradesh Staff Selection Commission (hereinafter referred to as 'the Commission') invited applications on-line for recruitment to various categories of posts in several departments of the Government of Himachal Pradesh.
One of the posts for which the applications were invited was that of Junior Office Assistants on contract basis. The Post Code number allotted to the said post was 556. The number of posts of Junior Office Assistants advertised under the said Notification ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 5 were 704. Subsequently, 302 posts were also included for recruitment.
.
(ii) The essential qualifications prescribed in the Notification for recruitment, for the post of Junior Office Assistant were as follows:
"(i).10+2 from a recognized Board of School Education/University.
(ii) One year diploma in Computer Science/Computer Application/Information Technology from a recognized University/Institution.
(iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi OR
(i) 10+2 from a recognized Board of School Education/University.
(ii) 'O' or 'A' level Diploma from National Institute of Electronics &Information Technology (NIELIT)
(iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi OR
(i) 10+2 from a recognized Board of School Education/University.
(ii) Diploma in Information Technology (IT) from a recognized ITI/Institution.
(iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi"::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 6
(iii) The mode of selection for the post of Junior Office Assistant, as prescribed in the Notification was as follows:
.
"1.Objective type screening test (MCQ) consisting of General English of 10+2 standard, General Hindi of Matric standard, Everyday Science, General Knowledge including General Knowledge of Himachal Pradesh, Social Science, Current affairs & logic. =200 Marks
2. Type skill test on computer of qualifying nature in prescribed speed 30 WPM in English or 25 WPM in Hindi for those who qualify objective type screening test.
3. Interview of those who qualify in typing skill tests. = 30 Marks."
(iv) It appears that about 38,932 applications were received in all, out of which 34,154 candidates were provisionally admitted for the screening test.
(v) A written objective type screening test was held on 28.4.2017, in which 20,009 candidates alone appeared, with the others provisionally admitted remaining absent.
(vi) Out of these 20,009 candidates who appeared for the screening test, 10,030 candidates were declared qualified in the screening test.
(vii) These candidates were called in the ratio 1:10 for undergoing a skill test in typing.
::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 7(viii) The skill test in typing was conducted during the period from 14.9.2017 to 8.11.2017. In the skill test, 7,208 candidates .
appeared and out of them 4,038 candidates qualified.
(ix) Out of the 4,038 candidates who qualified in the skill test in typing, 3,452 candidates (in the ratio of 1:3) were declared by a Notification dated 16.2.2018 as short-listed for further process of selection.
(x) Finding that the list of short-listed candidates contained the roll numbers of candidates who possessed a Degree in Computer Sciences, but not a Diploma in Computer Sciences, one Mr. Naresh Kumar, who is the fifth respondent in CWP No. 161/2019, filed Original Application OA No. 7397/2018 on the file of the Tribunal. The main ground on which the said Naresh Kumar made a claim for disqualifying the Degree Holders who did not possess a diploma as prescribed in the Statutory Rules, was that in Zahoor Ahmad Rather the Supreme Court has already clinched the issue with regard to higher qualifications vis-a-vis lower qualifications prescribed by the Rules.
(xi) By a judgment dated 21.12.2018 the Tribunal disposed of the said Original Application No. 7397/2018 directing the competent Authority to make selections in accordance with the ratio laid down by the Supreme Court in Zahoor Ahmad Rather.
::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 8It is against the said judgment that a person who holds a BA Degree in Mathematics and a post Graduate Degree in Master of .
Computer Applications has come up with the above CWP No. 161/2019.
7. On 11.1.2019, notice of motion was ordered in CWP No. 161/2019. While doing so, this Court also granted stay of operation of the order of the Tribunal dated 21.12.2018 in OA No. 7397/2018. However, the Commission was directed to allow the eligible candidates to participate in the process of Selection.
8. Pursuant to the interim order passed by this Court on 11.1.2019 in CWP No. 161/2019, the Commission issued a Notification dated 23.2.2019 containing a select list of candidates.
9. Immediately one group of candidates approached the Tribunal and filed O.A No. 677/2019. In the said Application, the Tribunal passed an interim order on 26.2.2019 directing status quo as on 26.2.2019, at 10 a.m. to be maintained with regard to the issue of appointment letters pursuant to the recommendations made by the Commission vide their Notification dated 23.2.2019.
10. Emboldened by the said interim order, groups and groups of persons filed a batch of Applications in OA No. 677,678,680, 681, 682, 691, 693, 695, 701, 703, 705, 712, 713, 733, 738, 754, 765, 775, 778, 783, 797, 809, 813 of 2019. In all these ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 9 Applications, the Tribunal passed an interim order on 7.3.2019, to the same effect as was passed on 26.2.2019 in O.A No. 667 of .
2019. It is against the said interim orders passed on 26.2.2019, and 7.3.2019 that a group of candidates who claim to possess exactly the same qualifications as prescribed by the Recruitment Rules have come up with the second writ petition CWP No. 629/2019.
11. Thus, we have on hand, one writ petition challenging a final order passed by the Tribunal in a Single Original Application and another writ petition challenging an interim order passed by the Tribunal in a batch of Original Applications. We shall first take up CWP No. 161/2019, in which the final order of the Tribunal is under challenge.
CWP No. 161/2019.
12. As stated at the beginning, this writ petition arises out of a final order passed by the Tribunal in OA No. 7397/2018. The said Application OA No. 7397/2018 was filed by one Naresh Kumar who is the fifth respondent in this writ petition contending that the persons who do not hold a Diploma in Computer Sciences, but holding a Degree or Post Graduate Degree in Computer Sciences cannot be selected for appointment in view of the law laid down by the Supreme Court in Zahoor Ahmad Rather. The Tribunal ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 10 actually did not go into the nitty-gritties of the issues. On the contrary, the Tribunal disposed of the Original Application with a .
very innocuous direction. To understand the same better, it may be useful to extract the operative portion of the impugned order of the Tribunal. It reads as follows:
"5.Consequently, the original application is disposed of with a direction to the respondents/competent authority to make selections to the post of Junior office Assistant (Code 556) strictly in accordance with Common Recruitment and Promotion Rules for the posts of Junior office Assistant (Information Technology), Class-III (Non-Gazetted) in various Departments of Himachal Pradesh Government and in consonance with the decision of the Hon'ble supreme Court in Civil Appeal Nos. 11853-11854 of 2018, Zahoor Ahmad Rather and Ors. etc. versus Sheikh Intiyaz Ahmad and Ors. etc., decided on December 05,2018, Annexure A-6"
13. As could be seen from the operative portion of the order of the Tribunal, the Tribunal did not actually decide the lis raised before it. The Tribunal merely directed the Commission to apply the Rules and take a decision in accordance with the law laid down by the Supreme Court.
14. By the very nature of the order passed by the Tribunal, it is doubtful as to whether the same can be challenged at all.
::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 11Technically if this Court has to set aside the order of the Tribunal, it would virtually tantamount to directing the Commission not to .
follow the Recruitment Rules and not to abide by the law declared by the Supreme Court. Therefore, the very maintainability of the writ petition is in doubt especially when the impugned order merely directs the Commission to follow the Rules and the law laid down by the Supreme Court.
15. But at the same time, we cannot lose sight of the fact that the lis raised by the fifth respondent in this writ petition as to whether the Degree Holders can be allowed to compete for selection or not, was left undecided by the Tribunal. If the issue is left undecided, it would be appropriate for this Court to remand the matter back to the Tribunal. But the Tribunal has now been abolished making it impossible for us to send the matter back to the Tribunal for a decision on the lis, with which the fifth respondent herein went before the Tribunal.
16. Hence, it is imperative for us to decide whether the persons who possess Under-Graduate and the Post Graduate Degrees in Computer Sciences can be treated as qualified according to the Recruitment and Promotion Rules, especially in the light of the law laid down by the Supreme Court.
::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 1217. We have already extracted the qualifications prescribed for the post, in one of the previous paragraphs. The Notification for .
recruitment prescribe the essential qualifications, as prescribed by the Recruitment and Promotion Rules and there is no dispute about the same. At the cost of repetition, the essential qualifications as prescribed are reproduced once again for easy appreciation as follows:
"(i).10+2 from Education/University.
r a
recognized Board of School
(ii) One year diploma in Computer Science/Computer
Application/Information Technology from a recognized University/Institution.
(iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi OR
(i) 10+2 from a recognized Board of School Education/University.
(ii) 'O' or 'A' level Diploma from National Institute of Electronics & Information Technology (NIELIT)
(iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi OR
(i) 10+2 from a recognized Board of School Education/University.
(ii) Diploma in Information Technology (IT) from a recognized ITI/Institution.::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 13
(iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi"
.
18. Though three different sets of qualifications are prescribed in the alternative, a careful scrutiny would show that a pass in 10+2 from a recognized Board of School Education/University and computer typing speed of 30 words per minute in English or 25 words per minute in Hindi are prescribed uniformly in all the three alternatives. It is only in respect of the Diploma in Computer Sciences that there is a slight variation among all the three alternatives.
19. In other words, insofar as a Diploma is concerned, the aspirants for the post should either have a one year Diploma in Computer Sciences/Computer Applications/ Information Technology from a recognized University/ Institution or have 'O' or 'A' level Diploma from the National Institute of Electronics and Information Technology or have a Diploma in Information Technology from a recognized ITI/Institution.
20. Two groups of candidates appear to be aggrieved by the strict adherence to the Recruitment and Promotion Rules. One set of candidates are those who hold an Under Graduate or Post Graduate Degree in Computer Applications or Information Technology. According to them, they possess a higher ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 14 qualification in the same field, which cannot be considered as a disqualification.
.
21. Another set of candidates who are aggrieved by the strict adherence to the Recruitment and Promotion Rules are those who have undergone Diploma Courses in the Institutions which are not considered by the State/ Commission to be recognized institutions.
22. Interestingly, it is only a candidate with an Under-Graduate Degree in Mathematics and a Post Graduate Degree in Computer Applications who has chosen to challenge the judgment of the Tribunal. The other group of candidates who have acquired Diplomas from the Institutions which are not accepted to be recognized institutions, have not come up with an independent challenge to the order of the Tribunal, but have chosen to come up as interveners.
23. In fact, the interveners in CWP No. 161/2019 do not even know where they stand insofar as the relief sought in CWP No. 161/2019 is concerned. We made a pointed query to the learned Senior Counsel appearing for the interveners as to whether they want the Writ petition to be allowed or dismissed. He had no answer, since the allowing of the writ petition would only benefit Degree Holders and Post Graduate Degree Holders and not ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 15 those who secured Diplomas from un-recognized Institutions. The dismissal of the writ petition would have the effect of keeping .
away those who have secured an undergraduate/post graduate degree. In either case, persons who have secured a diploma from unrecognized institutions will not derive any benefit. Therefore, in the absence of an independent challenge to the order of the Tribunal by persons holding Diplomas from the Institutions which are treated by the State and the Commission to be un- recognized, the interveners cannot get anything in these matters.
24. Now let us come to the case of the petitioner in CWP No. 161/2019. His case is that he holds a Degree in Mathematics and a Post Graduate Degree in Computer Applications and that therefore, he should be deemed to have fulfilled the essential educational qualifications.
25. But unfortunately for the petitioner in CWP No. 161/2019, he has become a fait accompli to a development that has taken place after the institution of the writ petition. This Court passed an interim order on 21.5.2019 in the above writ petition. The same reads as follows:
" In some of the matters, which have been adjourned for 17.6.2019, learned Advocate General has sought time for constitution of a Committee to examine equivalence of academic/technical qualification. Let the said Committee ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 16 comprising of at least 3 to 5 experts be constituted within two weeks, which will examine all the issues regarding recognition or genuineness of the qualifications, which are .
claimed to be equivalent or higher than those prescribed under the Recruitment and Promotion Rules. The question whether person possessing equivalent qualification will be eligible for the advertised post is kept open to be decided at the appropriate stage. Meanwhile, it shall be the discretion of the State Government to offer appointment to the selected candidates strictly in order of merit on contract basis (and not against regular posts)provided that such candidates are possessing qualification strictly as per R&P Rules. These appointments will be a stop-gap arrangement and subject to outcome of these writ petitions."
26. Pursuant to the said order, the Government constituted a Committee of six Members. By the proceedings dated 15.6.2019, the Committee unanimously decided that the candidates with higher qualifications cannot be considered for appointment under the existing R & P Rules.
27. After having accepted the constitution of an Expert Committee, we do not know how far the petitioner can now canvass that a person with higher qualification is entitled to compete for selection.
::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 1728. Despite the above, we shall deal with the contentions raised by Mr. K.D Shreedhar, learned Senior Counsel for the .
petitioner in CWP No. 161/2019.
29. Broadly the grounds on which the petitioner in CWP No.161 of 2019 seeks the consideration of his claim for appointment to the post of Junior Office Assistant (IT), as projected by Mr.K.D. Shreedhar, learned Senior Counsel are as follows:
(i) That despite a provision having been made in the "Important Instructions for filling up Online Applications" for the rejection of applications of ineligible candidates, the Staff Selection Commission allowed the candidates like the petitioner herein to participate in the entire process of selection, including the written examination and the document verification and that, therefore, the Commission is estopped from rejecting the candidature of the petitioner at the time of declaration of results;
(ii) That in the previous selection, candidates possessing higher qualification in the same Field/Discipline like the petitioner herein were permitted to participate and hence two different interpretations to the Rules cannot be made in two different selections;
(iii) That persons who possess a higher qualification in the same discipline cannot be rejected, especially after they have ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 18 participated in the process of selection and also secured higher marks than the other candidates;
.
(iv) That out of 1156 posts for which recruitment was carried out, the respondents could select only about 500 candidates who satisfy the criteria prescribed by the Recruitment & Promotion Rules in strict terms and hence no prejudice will be caused to anyone if candidates with higher qualification are considered; and
(v) That in any case the Rules have now been amended to the advantage of persons like the petitioner and hence the petitioner should be declared as eligible.
30. We have carefully considered the above submissions.
31. The first contention of the learned Senior Counsel for the petitioner revolves around one of the instructions found in the "Important Instructions" for filling up Online Applications. It was indicated in those "Important Instructions" that the information in respect of provisionally admitted candidates and the rejected candidates will be uploaded in the website of the Commission before the conduct of Screening Test/Examination. On the basis of this provision in the "Important Instructions", it is contended that the Staff Selection Commission ought to have rejected the applications of ineligible candidates at the earliest point of time before the Screening Test and that since they did not choose to ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 19 do so but allowed the candidates to go through the entire process of selection, the Commission is now estopped from rejecting the .
candidature of persons like the petitioner.
32. But the aforesaid contention deserves to be rejected for two reasons: (i) there can be no estoppel against the statutory prescription contained in the Recruitment and Promotion Rules;
and (ii) the stipulation contained in the "Important Instructions"
does not speak about the rejection of applications for want of qualifications etc. The instructions relied upon by the learned Senior Counsel is only to the effect that the relevant information will be posted in the website of the Commission. The instructions relied upon by the learned Senior Counsel do not even mention the grounds on which an application can be rejected. Therefore, the mere fact that the petitioner had been permitted to participate in the entire process of selection, would not prevent the Commission from examining the eligibility of the petitioner as per the statutory Rules. In fact the Commission is obliged, before releasing the list of selected candidates, to scrutinize all the certificates furnished by the candidates to find out whether they satisfy the eligibility criteria prescribed by the Rules or not.
33. Many times, candidates whose applications are rejected even before the screening test, come up before Courts/ Tribunals ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 20 and taking into account the balance of convenience, the Courts/ Tribunals also grant interim orders permitting them to undergo the .
process of selection. This does not mean that they are declared as eligible. Therefore, the first contention deserves to be rejected.
34. The second contention of the learned Senior Counsel for the petitioner is that in the previous selection, candidates with similar qualifications were held eligible. But this contention is to be stated only to be rejected. Whenever a case of this nature comes up before the Court, all that is required is for the Court to see whether the petitioner satisfies the eligibility criteria prescribed in the Rules or not. Once the candidate is found not to possess the qualifications as prescribed in the Rules, it is not possible to go on the basis of past precedent. Whatever be the understanding of the Staff Selection Commission about the Rule position, in the previous round of litigation, there is today a report of the Equivalence Committee constituted by the Government pursuant to the order of this Court dated 21.05.2019. This Committee comprised of (i) Director of Technical Education; (ii) Director of Higher Education; (iii) Secretary of H.P. Takniki Shiksha Board; (iv) Director in the Department of Information Technology; (v) Deputy Director (Technical) in the office of ::: Downloaded on - 29/09/2019 02:50:58 :::HCHP 21 Director of Technical Education; and (vi) Secretary to the Staff Selection Commission.
.
35. An argument was advanced to the effect that this Court by its order dated 21.05.2019 contemplated the constitution of an expert committee and not a committee of bureaucrats. But this argument is to be rejected for the simple reason that the Members of the Committee represent the employer, namely, the Government of H.P., who alone is competent to decide the qualifications required for appointment to a post. Therefore, even if some candidates with similar qualifications had been selected in the previous selection, the same cannot be a ground, especially to make a judicial pronouncement. Hence the second ground of attack is liable to be rejected.
36. The third contention of the learned Senior Counsel for the petitioner is that the petitioner has a higher qualification in the same discipline than what is prescribed and that he has also secured a higher rank in the written examination, proving himself to be more meritorious. Therefore, it is his contention that a more meritorious candidate cannot be thrown out, paving the way for less meritorious.
37. Though the aforesaid contention is very attractive, we do not think that the same is acceptable on a deeper scrutiny. The ::: Downloaded on - 29/09/2019 02:50:59 :::HCHP 22 argument that the possession of a higher qualification would presuppose the possession of lower qualification, originally .
accepted by the Supreme Court in Jyoti K.K. vs Kerala Public Service Commission {(2010) 15 SCC 596}, had already been distinguished in State of Punjab vs. Anita {(2015) 2 SCC 170}.
This distinction was quoted with approval in a subsequent decision in Zahoor Ahmad Rather vs. Sheikh Imtiyaz Ahmad {(2019) 2 SCC 404}. Therefore, the petitioner cannot advance his cause on the basis of a purported higher qualification. Insofar as the argument revolving around merit is concerned, it is to be pointed out that the assessment of merit should be confined only to those who satisfy the eligibility criteria prescribed by the Rules.
Persons who fall outside the purview of the Rules cannot take advantage of the result of the written examination. Therefore, the third contention also deserves to be rejected.
38. The fourth contention is that the service commission could not get more than around 500 candidates for filling up 1156 posts and that when huge number of posts are available, the Service Commission and the Government should not take a stand like the one they have now taken.
39. But we do not agree. If for some reason the respondents are unable to fill up more than 50% of the posts by strictly ::: Downloaded on - 29/09/2019 02:50:59 :::HCHP 23 applying the Rules, it is up to them to take a call as to what should be done. It is not within the domain of the Court to issue .
directions to fill up the remaining posts with candidates with higher qualifications. As a matter of fact there are also candidates other than those possessing higher qualifications, waiting in the wings. Persons who have qualified from unrecognized institutions are also advancing the very same argument that several posts remain vacant. We must also take note of one important aspect, namely, that the selection which has become the subject matter of the present controversy, commenced in October 2016. Now a period of three years has passed. During this three year period, many candidates would have become qualified as per the Rules.
Therefore, it is up to the Government to take a call whether to fill up the remaining posts with other candidates who participated in the selection or to throw the unfilled posts open for the next selection. Hence, the fourth contention also requires to be rejected.
40. The last contention revolves around an amendment to the Recruitment and Promotion Rules, made under the notification dated 14.01.2019. Taking clue from the amendment to the Rules, it is contended by the learned Senior Counsel for the petitioner that what is now prescribed by the Rules is only the minimum ::: Downloaded on - 29/09/2019 02:50:59 :::HCHP 24 educational qualifications, paving the way for people with higher qualifications to participate. Therefore, the learned Senior .
Counsel contends that at least the latest amendment may be applied.
41. But as we have pointed out earlier, the recruitment which is the subject matter of the present writ petition, commenced with the issue of a notification in October 2016. Merely because the selection was hit by a series of litigation, it is not open to the respondents to apply an amendment introduced on 14.01.2019, to the selection which was already under progress pursuant to the notification of October 2016.
42. In fact whenever an amendment, made after the issue of the notification for recruitment, is sought to be relied upon by the State, affected candidates always contend that the rules of the game cannot be changed in the middle of a selection. The same logic should apply, even if the rules of the game are changed to the advantage of one group of persons.
43. In any case the amendment to the Rules does not advance the cause of the petitioner. This can be appreciated by having a look at the amendment to the Rules.
44. By a Notification dated 14.01.2019, issued in exercise of the power conferred by the proviso to Article 309 of the ::: Downloaded on - 29/09/2019 02:50:59 :::HCHP 25 Constitution, a set of Rules, namely, the Himachal Pradesh Department of Personnel Junior Office Assistant (Information .
Technology) Class-III (Non-Gazetted) Ministerial Services Common Recruitment and Promotion (First Amendment) Rules, 2019, were issued amending the existing rules. The essential qualifications originally stipulated in Column No.7 of Annexure A of the Rules relating to recruitment to the post of Junior office
(i) Assistant were modified as follows:
"(a) ESSENTIAL QUALIFICATION(S):-
10+2 from a recognized Board of
School Education.
(ii) Diploma of minimum one year
duration in Computer/Science/Computer Application/Information Technology from an Institution affiliated to a recognized Board or University or from a deemed University.
OR
"O" or "A" level Diploma from National
Institute of Electronics & Information
Technology (NIEIT)
(iii) Computer typing speed of 30 words
per minute in English or 25 words per
minute in Hindi."
::: Downloaded on - 29/09/2019 02:50:59 :::HCHP
26
45. The only change made by the amendment is the insertion of the word "minimum". In the place of the words "one year .
diploma", the words "diploma of minimum one year duration" were substituted in the Rules.
46. As a result, persons holding diplomas, of durations of one year, two years or three years have now become eligible as per the amended Rules. A person holding a BA degree with Mathematics and a Masters' degree in Computer application cannot take advantage of the said amendment. The amendment does not include within its purview, degree holders and the post graduate holders. Therefore, the last contention also deserves to be dismissed.
47. Relying upon the decision of the Supreme Court in Mohd.
Riazul Usman Gani vs. District & Sessions Judge {(2000) 2 SCC 606}, it is contended by the learned Senior Counsel for the petitioner that the possession of a higher qualification cannot be a bar for the consideration of a candidate for selection to a post requiring a lower qualification.
48. It is true that the Supreme Court held in that case that the possession of a higher qualification cannot become a disadvantage to a candidate. But the Supreme Court made it clear in the fourth last paragraph of the same judgment that they ::: Downloaded on - 29/09/2019 02:50:59 :::HCHP 27 were saying what they said, on the facts of the case on hand and that the same should not be understood as laying down a rule of .
universal application. Hence the said decision is of no assistance to the petitioner.
49. The reliance placed by the learned Senior Counsel for the petitioner in Parvaiz Ahmad Parry vs. State of Jammu and Kashmir {(2015) 17 SCC 709}, is also misplaced. That was a case where the Rules stipulated the qualification of a BSc in Forestry or equivalent from any University recognized by the Indian Council of Agricultural Research. The appellant before the Supreme Court had acquired a degree in another subject with Forestry as one of the ancillaries and he had also acquired a MSc degree in Forestry. Therefore, the said decision turned on the special facts of the case. Hence it is distinguishable.
50. Today the declaration of law that holds the field is the one in Zahoor Ahmad Rather. It was made clear in the said case that it is not the role of the Courts to find out the equivalence. In fact the Court implored in Zahoor Ahmad Rather that the State, as the employer, may legitimately bear in mind several factors including the nature of the job, the aptitudes required for efficient discharge of duties, functionality of qualification and the content of the course of studies. The State as a public employer, it was ::: Downloaded on - 29/09/2019 02:50:59 :::HCHP 28 pointed out in the said decision, may well take into account social perspectives that require creation of job opportunities across the .
societal structure.
51. Whether we like it or not, ours is a society which is full of inequalities. Some are less fortunate and end up only with a Diploma. Some are better placed to acquire degrees and Post Graduate Degrees. If the State has different avenues of employment for different sections of people, the same cannot be undone by the Courts by juxtaposing higher qualifications into lower qualifications. Therefore, the challenge to the impugned judgment of the Tribunal is merit-less. Hence CWP No.161 of 2019 is liable to be dismissed. All applications for intervention are dismissed, as the interveners have no common cause either with the writ petitioner or with the 5 th respondent herein. The theme of their song is not in tune either with that of the writ petitioner or with that of the 5th respondent herein, who was the applicant before the Tribunal. Hence CWP No.161 of 2019 as well as the intervention applications filed therein is dismissed.
52. Insofar as CWP No.629 of 2019 is concerned, it arises out of an interim order passed by the Tribunal to maintain status quo as on 26.02.2019. But this order of status quo was passed as a sequel to an interim order passed by this Court on 11.01.2019 in ::: Downloaded on - 29/09/2019 02:50:59 :::HCHP 29 CWP No.161 of 2019 and the consequential release of a list of selected candidates. Now that CWP No.161 of 2019 is dismissed, .
the interim order as originally passed on 11.01.2019 goes. In any case the interim order dated 11.01.2019 passed in CWP No.161 of 2019 was already modified by this Court by a further order dated 21.05.2019 by which a discretion was granted to the State Government to offer appointment to the selected candidates.
Therefore, to a great extent the grievance of the petitioner in CWP No.629 of 2019 stands readdressed by the interim order dated 21.05.2019 passed in CWP No.161 of 2019.
53. However, there is a small area which requires clarification. By the order dated 21.05.2019, this Court directed the appointments to be made only on contract basis. Now that we have dismissed CWP No.161 of 2019, the fetters placed on the Service Commission and the Government by any interim order, passed either by this Court or by the Tribunal, shall stand removed. In other words, CWP No.629 of 2019 is also allowed and the impugned order set aside.
54. Pending application(s), if any, also stand(s), disposed of.
(V. Ramasubramanian) Chief Justice (Anoop Chitkara) Judge August 29, 2019.
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