High Court of H.P. 1 REPORTABLE/NON-REPORTABLE IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 31 st DAY OF DECEMBER, 2021 BEFORE HON’BLE MR. JUSTICE TARLOK SINGH CHAUHAN, & HON’BLE MR. JUSTICE SATYEN VAIDYA CIVIL WRIT PETITION NO. 3894 OF 2021 ALONG-WITH CONNECTED MATTERS CIVIL WRIT PETITION NO. 3894 OF 2021 REENA KUMARI D/O SH. GURUCHARAN SINGH R/O VILLAGE BARI, P.O. RAJA KA TALAB TEHSIL FATEHPUR, DISTRICT KANGRA H.P. 176051 AND STATE OF HIMACHAL PRADESH THROUGH ITS CHIEF SECRETARY, SHIMLA-2. THE H.P. STAFF SELECTION COMMISSION, HAMIRPUR, DISTRICT HAMIRPUR, HIMACHAL PRADESH THROUGH ITS SECRETARY THE PERSONNEL DEPARTMENT, GOVERNMENT OF H.P. SHIMLA-02, THROUGH ITS SECRETARY. 2. CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 34 of 2019 Between:- 1. PAWAN KUMAR S/O SH. RATTAN LAL VPO SALWANA, TEHSIL SUNDER NAGAR, DISTT. MANDI, PIN NO. 175018, ROLL NO. 511494. 2. AMAN GAUTAM S/O SH. HANSRAJ GAUTAM, VILL. LUHUNOO, TEHSIL & DISTT. BILASPUR, H.P. PIN NO. 174001, ROLL. 501042. 3. NIKHIL SHARMA S/O SH. ROSHAN LAL SHARMA, WARD NO. 04, HOUSE NO. 3.158, TEHSIL & DISTT. HAMIRPUR, ::: Downloaded on - 14/04/2022 10:10:00 :::CIS
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REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 31st DAY OF DECEMBER, 2021
BEFORE
HON’BLE MR. JUSTICE TARLOK SINGH CHAUHAN,
&
HON’BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 3894 OF 2021 ALONG-WITH CONNECTED
MATTERS
CIVIL WRIT PETITION NO. 3894 OF 2021
REENA KUMARI D/O SH. GURUCHARAN SINGHR/O VILLAGE BARI, P.O. RAJA KA TALABTEHSIL FATEHPUR, DISTRICT KANGRA H.P. 176051
AND
STATE OF HIMACHAL PRADESH THROUGH ITS CHIEFSECRETARY, SHIMLA-2.
THE H.P. STAFF SELECTION COMMISSION, HAMIRPUR, DISTRICT HAMIRPUR, HIMACHALPRADESH THROUGH ITS SECRETARY
THE PERSONNEL DEPARTMENT,GOVERNMENT OF H.P. SHIMLA-02, THROUGH ITS SECRETARY.
2. CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 34 of 2019
3. THE PERSONNEL DEPARTMENT, GOVERNMENT OF H.P.,SHIMLA-02, THROUGH ITS SECRETARY.
….RESPONDENTS.
71. CIVIL WRIT PETITION NO. 7743 OF 2021.
SH. NARINDER KUMAR S/O SH. SAWROOP CHAND,OCCUPATION AGRICULTURIST, AGED ABOUT 33 YEARS,RESIDENT OF VPO JASSI, TEHSIL BAROH, DISTRICTKANGRA, H.P. 176054.
...PETITIONER.
AND
1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY(TECHNICAL EDUCATION) TO THE GOVERNMENT OFHIMACHAL PRADESH.
2. THE SECRETARY (PERSONNEL) TO THE GOVERNMENTOF HIAMCHAL PRADESH, SHIMLA-2.
3. THE H.P. STAFF SELECTION COMMISSION, HAMIRPUR,THROUGH ITS SECRETARY, HAMIRPUR, HIMACHALPRADESH.
….RESPONDENTS.
72. CIVIL WRIT PETITION NO. 4621 OF 2021
Between:-
GOVIND SHARMAS/O SH. HIRA SINGH SHARMARESIDENT OF KAMAL COTTAGE SHAKTI VIHARPANTHAGHATI BEOLIA, SHIMLA TEHSIL &DISTRICT SHIMLA, H.P.
….PETITIONER
AND
1. STATE OF HIMACHAL PRADESH THROUGHSECRETARY (TECHNICAL EDUCATION)TO THE GOVERNMENT OF HIMACHAL PRADESH,SHIMLA-171002.
2. THE HIMACHAL PRADESH STAFF SELECTIONCOMMISSION, HAMIRPUR, DISTRICT HAMIRPURTHROUGH ITS CHAIRMAN.
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..RESPONDENTS
73. CIVIL WRIT PETITION NO. 4503 OF 2021
Between:-
SH. DHEERAJ THAKURS/O LATE SH. SURINDRE SINGH THAKURRESIDENT OF OM BHAWAN, SOOD BUILDINGLOWER CHAKKAR, TEHSIL AND DISTRICTSHIMLA (H.P.)
….PETITIONER
AND
1. STATE OF HIMACHAL PRADESH THROUGHITS ADDITIONAL CHIEF SECRETARY (PERSONNEL)TO THE GOVERNMENT OF HIMACHAL PRADESH,SHIMLA-2.
2. HIMACHAL PRADESH STAFF SELECTIONCOMMISSION, HAMIRPUR THROUGH ITS SECRETARY.
..RESPONDENTS
74. CIVIL WRIT PETITION NO. 4387 OF 2021
Between:-
SAHIL S/O SH. PYARE LALR/O VILLAGE KASMARI POST OFFICEDEOTHI, THESIL RAMPUR BUSHAHAR,DISTRICT SHIMLA, H.P.
….PETITIONER
AND
1. STATE OF HIMACHAL PRADESH THROUGHCHIEF SECRETARY TO THE GOVERNMENT OF HIMACHAL PRADESH.
2. HIMACHAL PRADESH STAFF SELECTIONCOMMISSION, HAMIRPUR, DISTRICT HAMIRPUR(H.P.) THROUGH ITS SECRETARY.
..RESPONDENTS
75. CIVIL WRIT PETITION NO. 4349 OF 2021
Between:-
SH. SURESH KUMARS/O SH. BALDEV SINGH,R/O VILLAGE KOLLAR, P.O. KOLLAR,
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TEHSIL PAONTA SAHIB, DISTRICTSIRMAUR, H.P.
….PETITIONER
AND
1. STATE OF HIMACHAL PRADESH THROUGHITS ADDITIONAL CHIEF SECRETARY (PERSONNEL)TO THE GOVERNMENT OF HIMACHAL PRADESH,SHIMLA-2.
2. HIMACHAL PRADESH STAFF SELECTIONCOMMISSION, HAMIRPUR,THROUGH ITS SECRETARY.
..RESPONDENTS
76. CIVIL WRIT PETITION NO. 4033 OF 2021
Between:-
AMAN GAUTAMS/O SH. HANS RAJ GAUTAMR/O VILLAGE LUHNOO KHAIRIAN NEAR LUHNOOCRICKET GROUND, P.O. BILASPUR TEHSIL SADARDISTT. BILASPUR, HIMACHAL PRADESH 174001.
….PETITIONER
AND
1. STATE OF HIMACHAL PRADESH THROUGHITS CHIEF SECRETARY TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.
2. THE H.P. STAFF SELECTION COMMISSION,HAMIRPUR, DISTRICT HAMIRPUR, HIMACHAL PRADESH THROUGH ITSSECRETARY.
3. THE PERSONNEL DEPARTMENT,GOVERNMENT OF H.P. SHIMLA-02,THROUGH ITS SECRETARY.
13. MR. RAJEEV KUMAR SON OF SHRI PREM CHANDRESIDENT OF VILLAGE CHOGAN, POST BIRTEHSIL BAIJNATH, DISTRICT KANGRA.
14. MR. JANESH KUMAR SON OF LATE SHRI RAJINDER SINGHR/O PRINCE LODGE, INDER NAGAR, DHALLI, SHIMLA-171012.
15. MR. PANKAJ SHARMA SON OF SHRI H.R. SHARMA,R/O SHARMA HOUSE, KANGADHAR, BELOW BCS NEW SHIMLA171009.
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16. MR. RAM DAYAL SON OF SHRI CHAMAN RAMRESIDENT OF VILLAGE MANDOHTA, POST OFFICE BHARARU, TEHSIL JOGINDERNAGAR, DISTRICT MANDI.
17. MR. SUSHIL CHAUHAN SON OF SHRI SURJEET SINGHRESIDENT OF VILLAGE KHANI, POST OFFICE TANDI TEHSIL ANNI, DISTRICT KULLU.
18. MR. RAKESH KUMAR SON SHRI NARIANVILLAGE GICHHNA, POST OFFICE MAKRAOG,TEHSIL CHOPAL, DISTRICT SHIMLA-171211.
19. MR. VIVEK THAKUR SON OF SHRI SOHAN SINGH THAKUR, RESIDENT OF VILLAGE SAHAJ, POST OFFICE JASSAL,TEHSIL KARSOG, DISTRICT MANDI-175009.
20. MR. KULWANT SINGH SON OF SHRI LAJJA RAMRESIDENT OF VILLAGE SHAUNGI, POST OFFICE, RESIDENT BAGSHAR, TEHSIL KARSOG, DISTRICT MANDI-175009.
....RESPONDENTS
MR. DILIP SHARMA, MS. RANJANAPARMAR, MR. SANJEEV BHUSHAN, MR.ANKUSH DASS SOOD, MR. AJAYSHARMA AND MR. V.S. CHAUHAN,SENIOR ADVOCATES WITH MR. KARANSINGH PARMAR, MR. RAKESHCHAUHAN, MR. RAJNEESH K. LAL, MR.AJAY KASHYAP, MR. ANAND SHARMA,MR. ANIL KUMAR, MR. AJAYCHAUHAN, MR. RAKESH K. DOGRA,MR. NARESH VERMA, MR. VIKASRAJPUT, MR. PANKAJ SAWANT, MR.MANISH SHARMA, MS. REETAHINGMANG, MR. PRAVEEN KUMARCHANDEL, MR. SANJAY SINGH, MS.ARCHNA DUTT, MR. VISHAL SINGHTHAKUR, MR. DIGVIJAY SINGHTHAKUR, MS. VEENA SHARMA, MR.ABHISHEK SHARMA, MR. NARENDERREDDY, MR. NEERAJ SHARMA, MR.HEMANT KUMAR THAKUR, MR.SANJAY SINGH, MS. SEEMA K.GULERIA, MR. SHYAM SINGHCHAUHAN, MR. AMIT JAMWAL, MR.R.L. VERMA, MR. NARESH KUMARVERMA, MR. DHEERAJ KANWAR,ADVOCATES, FOR THE PETITIONER(S)IN THE RESPECTIVE PETITIONS.
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MR. B.C.NEGI, SR. ADVOCATE WITHMR. SANJEEV KUMAR AND MR.ANGREZ KAPOOR, ADVOCATES, FORTHE APPELLANTS IN LPA NOS. 41, 42, 43,62, 63, 64, 70 AND 71 OF 2021.
MS. SUCHITRA SEN, ADVOCATES, FORTHE APPELLANTS IN LPA NOS. 116 TO126 OF 2021.
MR. ASHOK SHARMA, ADVOCATEGENERAL WITH MR. RAJINDERDOGRA, SENIOR ADDITIONALADVOCATE GENERAL, MR. VINODTHAKUR, MR. SHIV PAL MANHANS,MR. HEMANSHU MISRA, ADDITIONALADVOCATE GENERALS AND MR.BHUPINDER THAKUR, DEPUTYADVOCATE GENERAL, FOR THERESPONDENTS-STATE.
MR. SANJEEV KUMAR, MR. ANGREZKAPOOR AND MS. SUCHITRA SEN,ADVOCATES, FOR THE RESPONDENT-H. P. STAFF SELECTION COMMISSION,IN THE RESPECTIVE PETITION(S).
MR. ANKUSH DASS SOOD, SENIORADVOCATE WITH MR. RAJNEESHK.LAL, ADVOCATE, FORRESPONDENT NO.1 IN LPA NO. 43 OF2021.
MR. ANKUSH DASS SOOD, SR.ADVOCATE WITH MS. SHWETAJOOKLA, MR. ONKAR JAIRATH, MS.SHALINI THAKUR, MR. NAVEEN K.BHARDWAJ, MR. AJAY SHANDIL, MR.ANIL KUMAR GOD, MR. AVINASHJARYAL, MR. J. L. BHARDWAJ, MS.YOGITA DUTTA, MR. MALAYKAUSHAL, MR. RAKESH KUMARDOGRA, MR. VINOD CHAUHAN, MS.KIRAN SHARMA, MR. K. C.SANKHYAN, MR. RAJ KUMAR NEGI,MR. SUNIL KUMAR, MS. RICHASHARMA, MR. JAI RAM SHARMA, MR.NARESH K. SHARMA, MR. TARUNSHARMA, MR. ARVIND, RAJENDERTHAKUR, MS. REETA HINGMANG, MR.ANAND SHARMA, MR. ANIL THAKURAND MS. SEEMA K. GULERIA,
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ADVOCATES, FOR THE RESPONDENTSIN THE RESPECTIVE PETITIONS.
Reserved on: 08.12.2021Decided on: 31.12.2021
____________________________________________________________________These petitions coming on for hearing this day, Hon’ble Mr. Justice
Satyen Vaidya, passed the following:
O R D E R
All these petitions are being decided together by a common judgment as
identical questions of fact and law are involved.
The questions, posed for determination herein, have arisen from
happening of events which have sequentially continued for inordinate period of
more than six years.
2. Government of Himachal Pradesh had created posts of Junior Office
Assistant (Information and Technology), Class-III, Non-Gazetted [for short,
“JOA (IT”)] for recruitment in its various Administrative Departments. Common
Recruitment and Promotion Rules (for short, “2014 Rules”) for the post JOA (IT)
were notified on 24th December, 2014. The minimum educational and other
qualifications for the direct recruitment were prescribed as under: -
(a) ESSENTIAL QUALIFICATION:-
(i) 10+2 from a recognized Board of School Education/University.
(ii) One year Diploma in Computer Science/Computer Application/Information Technology from a recognizedUniversity/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.
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(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.
(b) DESIRABLE QUALIFICATION(S).- Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.”
3. The Himachal Pradesh Public Service Commission (for short
“HPSSC”) vide Advertisement No. 30/2015 dated 13.02.2015 invited
applications from the eligible candidates for appointment to 1421 posts of
JOA(IT). Though the prescribed minimum essential qualifications were
as per R&P Rules, still, besides the candidates having qualifications as per
advertisement, a large number of candidates falling under one of the
following categories were also provisionally admitted by HPSSC:
(i) Those who either held qualification higher to the prescribed
qualifications;
(ii) those who were having prescribed qualifications but from
institutes which were not considered as recognized;
(iii) those who held qualification equivalent to the prescribed
qualification.
This anomalous situation was result of the prevalent procedure
which required applications to be submitted online without supporting
documents merely on the basis of declaration of candidate made in the
online recruitment applications. However, there was clear stipulation in
the advertisement that the candidates must ensure their eligibility in
respect of category, experience, age and essential qualification(s) etc. as
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per requirement of the post advertised to avoid rejection at later stage.
4. Having received the applications from large number of candidates
whose educational qualifications were not strictly in accordance with the
prescription made either in the 2014 Rules or the advertisement, HPSSC
started to seek clarification from the State Government since as far back
as 4.11.2015, when for the first time HPSSC sought clarification from
State Government by posing questions as under:
“1. Whether a certificate or diploma issued by any registered institute
operating within the state of H.P. or from outside the state is valid
for determining eligibility for recruitment to the post of Junior
Office Assistant (IT) or such certificates issued by recognized
institutes are to be accepted.
2. A list of registered/recognized institutes whose diplomas/certificates
are valid/recognized for determining eligibility for the post.
3. Any other clarification/guidelines as deemed fit in respect of the
recruitment to the post.”
The process seeking clarification continued thereafter as is evident
from series of correspondence dated 25.02.2016, 27.12.2016, 29.5.2017,
3.6.2017, 24.6. 2017 and 14.7.2017 available on record of CWPOA 34 of
2019 (Pawan Kumar and others Vs State of H.P and others).
5. In absence of any decision from the State Government, HPSSC
continued with selection process. A written objective type test was held on
10.04.2016. Total 12473 candidates qualified the test and were called to
undertake Skilled Typing Test. 10271 candidates appeared for the Skilled
Typing Test and 4092 candidates qualified and were called for interviews
which were scheduled from 13.05.2017 to 12.07.2017. Candidature of all
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candidates, except those who were found to be holding qualification
strictly as per 2014 Rules, were rejected. Faced with the situation, some of
persons with rejected candidature approached the then State
Administrative Tribunal (for short, “Tribunal”) against their rejection by
way of OA Nos. 2830, 2989, 2994, 2998, 3009 and 3026 of 2017 and an
order dated 30.6.2017 came to be passed by the Tribunal in following
terms:
Heard.
Notice in all the original applications except O.A. No.2994
of 2017, which is accepted by Ms. Archna Dutt in O.A. Nos.2830
and 3026 of 2017 and Mr. Raj Kumar Negi in O.A. Nos.2989,
2998 and 3009 of 2017, learned Standing Counsel, respectively.
2. All these matters being inter-connected, shall stand
clubbed together.
3. On an oral prayer made on behalf of the applicant(s), State
of Himachal Pradesh through the Secretary (Personnel) to the
Government of Himachal Pradesh, is ordered to be impleaded as
co-respondent No.2 in all the original applications except O.A.
No.2998 of 2017. Copies supplied. Amended memos of parties be
filed by the next date of hearing. The Registry also to reflect this
order in the list of parties in all the original applications except
O.A. No.2998 of 2017.
4. Notice on behalf of respondent No.1-State in O.A. No.2998
of 2017 and newly added respondent No.2 in other OAs is also
waived by Mr. Gaurav Kochhar, learned Dy. AG.
5. Replies be filed within four weeks.
6. In terms of the previous order dated 28.06.2017 passed in
O.A. No.2994 of 2017, Bhavnesh Kumar and others Versus
Himachal Pradesh Staff Selection Commission, the learned
Standing Counsel for the respondent-Commission has filed
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instructions dated 29th June, 2017, which are taken on
record.
7. Heard the learned counsel for the parties on the prayer on
behalf of the applicant(s) for interim relief.
8. The process for recruitment to the post of Junior Office
Assistant (IT) has been initiated by the respondent-Commission.
The requisite qualifications for the post are as under:-
“EDUCATIONAL QUALIFICATION:-
(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.”
9. All the applicants are 10+2. However, the nomenclatures
of the one year diploma held by them in Computer is not in
consonance with the nomenclature of the diploma mentioned in the
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aforesaid educational qualifications. However, prima facie, it is
made out that they are holding one year diploma in Computer. In
such circumstances, there shall be a direction in the interim to the
respondent-Commission to permit the applicant(s), who admittedly
have already appeared in the written/typing test, to appear in the
interview, provisionally. However, their result shall not be
declared and instead kept in a sealed cover till the matter with
regard to equivalence of the diploma held by them with the
diploma required as per the aforesaid educational qualifications is
considered and decided by the newly added respondent No.2-State,
which shall be done as expeditiously as possible, but within a
reasonable timeframe.
10. It shall be the responsibility of each of the applicants to
produce certified copy of this order before the Secretary to
respondent No.1-Commission forthwith.
All these original applications were later registered as CWPOA Nos.
2253, 2289, 2290, 2388, 2394 and 7681 of 2020 in this Court after
abolition of the Tribunal.
6. On 21.8.2017, the State Government directed HPSSC to go ahead
with the recruitment process in terms of decision taken by the equivalence
committee formed for the purpose. The communication dated 21.08.2017
reads as under: -
“I am directed to refer to your letter No. HPSSC 8(2)-862/15-
13161 dated 14th July, 2017 and also the other references seeking
clarification on the subject cited above and to say that the matter has
been considered at the Government Level in compliance of the directions
passed by the Hon'ble Himachal Pradesh Administrative Tribunal in OA
No. 2994 of 2017 and other various similar OA's pending adjudication
before the Hon'ble, Himachal Pradesh Administrative Tribunal that the
applicant(s) be permitted to appear in the interview, provisionally and
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their result should be kept in sealed cover till the matter with regard to
equivalence of the diploma held by them with the diploma required as per
prescribed educational qualification in rules is considered and decided by
the State. While passing these orders the Hon'ble Himachal Pradesh
candidates are holding one year diploma in Computer though
nomenclature of the one year diploma held by them in Computer is not in
consonance with the nomenclature as prescribed. The Government after
having detailed examination and convening a meeting of all concerned
departments has arrived at the following decisions:
(1). All such candidates having one year Diploma in Computer or
higher qualification in Computer Science/Application/IT from any
private Institution like from. Society under Societies Act. Rashtrya
Saksharta Mission IT programme/Skill Development Programme
etc. be considered for final selection subject to having successfully
passed their skill test i.e. Typing Test on Computer and after
having obtained their undertaking/declaration certifying that they
had attended the classes/diploma course by attending the classes
regularly.
(2). That the Computer Science is not limited to the specific
nomenclature of Diploma prescribed in the R&P Rules, as such,
the Diplomas in Computer and other Higher Qualifications
belonging to Computer Science/application Irrespective of their
nomenclature be also considered for final selection subject to
having successfully passed their skill test i.e. Typing Test on
Computer and alter having their undertaking/declaration certifying
that they had attended the classes/diploma course by attending the
classes regularly. There may be instance where certificates are
issued instead of diploma, In: such cases, the Commission is to
ascertain and ensure that subjects stadled, are at par with one year
Diploma course in Computer Science/Application/IT.
(3). The date of personal interview of the candidate concerned in
the instant case be treated as valid date for evaluation/
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consideration/acceptance of his/her diploma/ essential
qualification.
(4). With regard to educational qualification, as informed during
the meeting, the Commission has sought clarification of
equivalence in some cases from the concerned authorities,
therefore, the Commission need to proceed further in accordance
with the clarification/decision obtained from the State Level Board
of Equivalence Committee/H.P. Board of School Education by
accepting the qualification of such candidate(s) for this job if that
is found equivalent to 10+2 and valid for pursuing higher studies.”
The decision so taken and conveyed was subsequently approved by
the State Cabinet on 18.09.2017.
7. In pursuance to the above noticed decision of the Government,
HPSSC reviewed the selection process and allowed those candidates to be
considered for selection, who had earlier been rejected. Appointments
were accordingly offered and made. Consequently, many candidates
though eligible as per R&P Rules, could not find place in the merit of
selected candidates. This triggered another round of litigation. Some of
these candidates approached the Tribunal by way of OA No. 5543 of 2017
which later came to be registered as CWPOA 34 of 2019 in this Court and
is also being decided herein. Since this Original Application was filed
after declaration of final select list of HPSSC and all the selected persons
were impleaded as private respondents with the aid of order 1 Rule 8 of
the Code of Civil Procedure.
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8. Thus, following two sets of litigations arose out of selection
process undertaken by HPSSC for posts of JOA (IT) under Post Code 447
(hereinafter referred to as “JOA 447”)
(i) OA Nos. 2830, 2989, 2994, 2998, 3009 and 3026 of 2017
(later registered as CWPOA Nos. 2253, 2289,2290,2388,2394 and
7681 of 2020 in this Court after abolition of the Tribunal) by
candidates whose candidature for JOA 447 was rejected by HPSSC
for not possessing qualification as per R&P Rules.
(ii) OA No. 5543 of 2017 (later registered as CWPOA 34 of
2019 in this Court) by candidates who failed to find their names in
select list as a consequence of decision dated 21.8.2017
9. The above-mentioned litigation gave rise to the issue, Whether
the decision dated 21.8.2017/18.9.2017 of State Government qualified
the test of legality and fairness, if so, whether the selections made by
HPSSC to JOA 447, in pursuance to such decision, were valid?
10. For adjudication of above question, in the first instance, we
propose to consider the challenge raised by petitioners in CWPOA No. 34
of 2019 which has been filed for following reliefs:
“i. That Annexure A-2 clarification dated 21st ofAugust 2017 issued by respondent number 1 may bequashed and set aside. Further Annexure A-3 officeorder dated 8 of September 2017 may also bequashed and set aside.
ii. That the respondent number 2 may be directed toprepare merit list of candidates possessing essentialand minimum qualification mention in theadvertisement No.3/2015 dated 13.2.2015 andrecommend their names for recruitment.”
11. Petitioners in CWPOA 34 of 2019 have raised following grounds
for seeking the reliefs as noticed above:
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a) Respondents could not have prescribed additionalmode of selection.
b) There was no power to relax the R&P Rules vis-a-visessential qualification.
c) The entire exercise was done with oblique motive toallow the ineligible candidates.
d) It nullified the effect of R&P Rules.e) Those persons also became eligible who had acquired
minimum qualifications on dates subsequent to the lastdate of submission of applications.
f) The changes in R&P Rules could be made only by dueprocess of law.
12. The genesis of dispute can be traced from the following expression
used in 2014 Rules:-
“One year Diploma in Computer Science/Computer Application/Information Technology from a recognizedUniversity/Institution”.
Firstly, there appeared to be a confusion with respect to import of
expression “recognized University/Institution” and secondly, in respect
of diploma qualification having been held by the candidates under
different nomenclatures. The dispute arose when many candidates
applied for JOA 447 claiming to have Diploma in the same subjects as
prescribed in 2014 Rules but with different nomenclature and the other
dispute was raised in respect of authority which was to recognize the
institutes issuing requisite Diploma. Another area of discord was created
by the candidates having higher qualification. As evident from the said
clause of 2014 Rules, no specific nomenclature of required diploma was
prescribed. It was mentioned only as diploma in computer
science/computer application/information technology, whereas more than
one type of curriculum could be said to have satisfied the requirement in
this behalf. As regards recognized university is concerned, there could not
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be any dispute regarding the authority having jurisdiction to recognize the
university, but it was totally unclear as to which was the authority whose
recognition was valid vis-a-vis the institution prescribed by 2014 Rules.
13. Before adverting to the merits of ground or objections raised in
CWPOA No.34 of 2019, it is relevant to notice that Original Application
was filed before the Tribunal after the process of appointments to the post
of JOA (IT) (post code-447) was completed by respondents. Noticeably,
neither the selection process undertaken by HPSSC for JOA 447 nor the
selections made thereby are under challenge. It is also to be noticed that
the decision of the State Government dated 21.08.2017 to allow candidates
for selection other than the candidates having qualification strictly as per
the R&P Rules was ratified and confirmed by an ex-post facto sanction
granted by the State Cabinet on 18th September, 2017 and such decision of
the Government has also not been assailed. Simply, the prayer made in the
original application seeking directions to HPSSC to prepare merit list of
candidates possessing essential and minimum qualification mentioned in
the advertisement No.3/2015 dated 13.02.2015 may not suffice in the
absence of the reliefs as noticed above
14. In the aforesaid backdrop, we now proceed to consider the
objections raised by petitioners in CWPOA 34 of 2019. A challenge has
been laid to the competence and power of the State Government to relax
R&P Rules and also to prescribe additional mode of selection. It has been
contended that change in R&P Rules could not be made by administrative
instructions without adoption of due process as envisaged under law. The
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contention so raised by the petitioners deserves rejection, for the reasons
that firstly the 2014 Rules, vide Clause 18 reserves power of relaxation in
favour of State Government. The relevant Clause reads as under: -
“18. Power to relax.- Where the State Govt. is of the opinionthat it is necessary or expedient to do so, it may, by order forreasons to be recorded in writing and in consultation with theHimachal Pradesh Public Service Commission, relax any ofthe provision(s) of these rules with respect to any class orcategory of person(s) of post(s).
By virtue of decision dated 21.08.2017 confirmed by State Cabinet on
18.09.2017, it was decided that the category of persons sought to be
selected required elaboration. This power to relax is vested in the State
Government, in case State Government finds it necessary or expedient to
do so. The only prescription that appears to have been lacking in the
instant case is that the Himachal Pradesh Public Service Commission was
not consulted before the aforesaid decision. The right of consultation with
Public Service Commission is prescribed by Article 320(3) of the
Constitution, however, the Proviso to Article 320 empower the Governor
of State to make Regulations specifying matters exempted from prior
consultation process of the Public Service Commission. In exercise of such
powers “The Himachal Pradesh Public Service Commission (Exemption
from consultation) Regulations, 1973” have been framed. As per
Regulation 3 thereof the exemption from consultation extends to services
and posts specified in Schedule to such Regulations and clause 8(i) of the
Schedule relates to selection and recommendation for making recruitment
to Class III posts, excepting certain categories which in any case does not
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include the post of JOA(IT). Thus the relaxation of 2014 Rules undertaken
by the State Government was within its competence and powers.
15. Secondly, it is evident from the facts detailed hereinabove that the
prescriptions of requisite qualification be it in 2014 Rules or in the
advertisement could not be said to be unambiguous. The subjects of
Computer Science or Information Technology cannot be restricted only to
the nomenclature used in R&P Rules/advertisement. Both these subjects
carry within them more than one type of curriculum. Thus, in the absence
of any clarity as to the kind of curriculum required as pre-condition for
eligibility, the decision of the State Government dated 21.08.2017 read
with cabinet decision dated 18.09.2017 cannot be faulted. In addition,
there was also no clarity as to the authority whose recognition was valid,
vis-a-vis, the institutions competent to award requisite Diploma. The
repeated correspondence inter-se the HPSSC and the State Government is
evidences this fact. Further, the material discussed by the equivalence
committee appointed by the State Government also warrants the same
conclusion. Support can be drawn from the fact that common R&P Rules
for the post of JOA (IT) have been amended by the State Government in
2020 (for short, “2020 Rules”), the relevant extract thereof reads as under:
“(a) ESSENTIAL QUALIFICATION(S):(i) Should have passed 10+2 from a recognizedBoard of School Education/University.
ORMatriculation from recognized Board of SchoolEducation with one/two year'sDiploma/Certificate from an Industrial TrainingInstitute (ITI) in Information TechnologyEnabled Sectors (ITES) as notified by DirectorGeneral of Employment & Training (Govt. ofIndia) from time to time or three years Diplomain Computer Engineering/Computer Science/IT
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from Polytechnic as approved by All IndiaCouncil for Technical Education (AICTE);”
Record reveals that one of the considerations for amendment of these
Rules was the imprecise provision as to the exact kind of diploma required
and also the authority which was empowered to authorise the institutions
to award the requisite diploma. The 2020 Rules now appears to have
clearly prescribed the institutes whose diploma will be valid as also the
nomenclature of the diploma as will be relevant for considering the
selection and appointment to the post of JOA (IT).
16. Thirdly, it cannot be ignored that multifarious litigations had
erupted as a result of the ambiguous 2014 Rules and the posts of JOA (IT)
involved therein were required to be filled on urgent basis. The number of
posts advertised as well as their usefulness in almost all the departments of
the Government underlined the importance and urgency involved.
Apparently, Class-III, Non-Gazetted posts of JOA (IT) became necessity
in all the departments as a result of advent of computerization and
information technology. In order to cope with the requirements of
personnel having basic knowledge in computer, these posts were created.
The records further reveal that even after the selection process undertaken
for JOA 447, hundreds of more posts of JOA (IT) came to be advertised
later through advertisement for post codes 556 and 817.
17. Fourthly, the exercise to constitute equivalence committee was
under taken in pursuance to the judicial order passed by the Tribunal on
30.6.2017. This order was never assailed by anyone including the
petitioners in the instant petition. This being so, the deviation made by the
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State Government from R&P Rules in the aforesaid manner cannot be
faulted.
18. Last but not the least, there is nothing on record from which it can
be inferred that the impugned action of the State Government/HPSSC had
some extraneous motive or was not bonafide. The contention of the
petitioners that the entire exercise of respondents was with oblique motive
to allow ineligible candidate is to be ignored without any tangible material
on record in support or substantiation thereto.
19. The contention raised by the petitioners that by the aforesaid action
of the respondents, those persons also became eligible who had acquired
the eligibility after the cutoff date prescribed in the advertisement is also
required to be rejected for the reason that the petitioners have miserably
failed to provide details in respect of such category of persons. In absence
of such details no relief can be granted to the petitioners particularly in the
view of the nature of dispute that involves more than one categories of
candidates. The contention of petitioners, if was to be upheld, would have
required such category of persons to be identified separately. Even
otherwise there is no trite law that the employer cannot change the
prescription during continuation of selection process. This can be said with
more certainty in the given facts and circumstances of the case where there
was urgency and the time taken to amend ambiguous Rules would have
caused prejudice to the employer.
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recruitment/selection process cannot be made subject matter of judicial
review merely on the ground that the employer has changed/ amended the
rule(s) after initiation of the process. Reference in this regard can be
placed on judgment passed by Hon’ble Supreme Court in Maharashtra
Public Service Commission Through Its Secretary; Ashok Tukaram
Barde Vs. Sandeep Shriram Warade and Others; Suhas Sudhakarrao
Lavhekar and Others Etc. Etc., (2019) 6 SCC 362, wherein it has held
as under:
[9] The essential qualifications for appointment to a post are for
the employer to decide. The employer may prescribe additional or
desirable qualifications, including any grant of preference. It is the
employer who is best suited to decide the requirements a candidate
must possess according to the needs of the employer and the nature
of work. The court cannot lay down the conditions of eligibility,
much less can it delve into the issue with regard to desirable
qualifications being at par with the essential eligibility by an
interpretive re-writing of the advertisement. Questions of
equivalence will also fall outside the domain of judicial review. If
the language of the advertisement and the rules are clear, the Court
cannot sit in judgment over the same. If there is an ambiguity in
the advertisement or it is contrary to any rules or law the matter
has to go back to the appointing authority after appropriate orders,
to proceed in accordance with law. In no case can the Court, in the
garb of judicial review, sit in the chair of the appointing authority
to decide what is best for the employer and interpret the conditions
of the advertisement contrary to the plain language of the same.
To similar effect is exposition made by Hon’ble Supreme Court in State
of Madhya Pradesh Vs. Raghuveer Singh Yadav, (1994) 6 SCC 151,
which reads as under:
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[5] It is not in dispute that Statutory Rules have been made
introducing Degree in Science or Engineering or Diploma in
Technology as qualifications for recruitment to the posts of
Inspector of Weights and Measures. It is settled law that the State
has got power to prescribe qualifications for recruitment. Here is a
case that pursuant to amended Rules, the government has
withdrawn the earlier notification and wants to proceed with the
recruitment afresh. It is not a case of any accrued right. The
candidates who had appeared for the examination and passed the
written examination had only legitimate expectation to be
considered of their claims according to the rules then in vogue. The
amended Rules have only prospective operation. The government
is entitled to conduct selection in accordance with the changed
rules and make final recruitment. Obviously, no candidate acquired
any vested right against the State. Therefore, the State is entitled to
withdraw the notification by which it had previously notified
recruitment and to issue fresh notification in that regard on the
basis of the amended Rules.
21. Thus, the contentions raised by petitioners in CWPOA No. 34 of
2019 are rejected and the process of selection and appointment already
concluded by the respondents against Post Code 447 is upheld. In view of
the declaration of selection process for Post Code 447 as legal and valid,
the petitions i.e. CWPOA No. 2253, 2289, 2290, 2388, 2394 and 7681 of
2020 have been rendered infructuous as the relief sought in all such
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petitions was to allow the persons other than those having qualifications
strictly as per R & P Rules/advertisement in the selection process.
22. While the selection process for JOA 447 was still experiencing the
turmoil of rival claims, as detailed above, HPSSC, undertook yet another
process for selection of 1156 posts of JOA (IT) in pursuance to
(hereinafter referred to as JOA 556) for brevity, out of which 85 posts
were to be filled on regular basis in Excise Department and the rest were
to be filled on contract basis. The Essential Minimum Qualification this
time also remained as per prescription of 2014 Rules. Again, the online
applications were submitted by all categories of candidates, as in the case
of JOA 447, and the already existing confusion aggravated. As noticed
above, the selection process for JOA 447 stood completed in September,
2017 from perspective of respondents, notwithstanding, pending litigation
for rival claims. Faced again with dilemma, HPSSC once again sought
clarification from the State Government regarding criteria to be adopted
for selection process against post code 556. In response, the State
Government vide letter dated 19.03.2018 directed HPSSC to implement
the clarification earlier issued vide communication dated 21.8.2017 in the
on-going process against post code 556 also. Contents of letter dated
19.3.2018 read as under:
“I am directed to refer to your letters No. HPSSC-C92)970/16 dated01.01.2018 & 16-02-2018 on the subject cited above and to say that since theposts of Junior Office Assistant (IT), Class-III (Non-Gazetted) have beenadvertised under different post codes i.e. Post Code 447 and 556 but are to befilled up under one set of common Recruitment and Promotion Rules for thepost and as such carry one or similar cadre. It has been decided that theclarification dated 21-08-2017, issue by this department on the directions ofHon’ble Himachal Pradesh Administrative Tribunal in respect of post code
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447, be also implemented in the on going process under post code 556, beingrecruitment for the same post with similar provisions of rules. However, theclarification/instructions dated 21-08-2017 are under challenge before theHon’ble Court, as such, its implementation will be subject to final outcome ofHon’ble Court orders so passed in case of post code 447 in the pendingmatters.”
23. The aforesaid decision of State Government prepared another
battle grounds for rival claimants. CWPOA No. 7585 of 2019 titled
Akshay Sharma Vs State of H.P. and others is one such petition which has
been filed by the candidate claiming right of selection strictly as per 2014
Rules. Whereas, petitions filed by candidates seeking benefit of decision
taken by the State Government on 21.8.2017 for JOA 447 and made
applicable to JOA 556 vide communication dated 19.3.2018 are CWPOA
6985 of 2020, CWP No. 2329 of 2021, CWP No.2361 of 2021, CWP No.
2420 of 2021, CWP No. 2421 of 2021, CWP No. 2422 of 2021, CWP No.
2423 of 2021, CWP No. 2426 of 2021, CWP No. 3111 of 2021, CWP No.
3112 of 2021, CWP No. 3116 of 2021, CWP No. 3133 of 2021, CWP No.
3134 of 2021, CWP No. 3137 of 2021, CWP No. 3141 of 2021, CWP No.
3142 of 2021, CWP No. 3144 of 2021, CWP No. 3148 of 2021, CWP No.
3151 of 2021, CWP No. 3182 of 2021, CWP No. 3184 of 2021, CWP No.
3887 of 2021, CWP No. 3888 of 2021, CWP No. 3891 of 2021, CWP No.
3892 of 2021, CWP No. 3893 of 2021, CWP No. 4032 of 2021, CWP
No.4033 of 2021, CWP No. 4349 of 2021, CWP No.4387 of 2021, CWP
No. 4503 of 2021, CWP No. 4621 of 2021, CWP No. 4903 of 2021, CWP
No. 5078 of 2021, CWP No. 5129 of 2021, CWP No. 5141 of 2021, CWP
No. 5142 of 2021, CWP No. 5148 of 2021, CWP No. 5175 of 2021, CWP
No. 5189 of 2021, CWP No. 5193 of 2021, CWP No. 5673 of 2021, CWP
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No. 5674 of 2021, CWP No. 5760 of 2021, CWP No. 5761 of 2021, CWP
No. 6465 of 2021, CWP No. 6467 of 2021, CWP No. 6410 of 2021, CWP
No.6557 of 2021, CWP No. 7179 of 2021, CWP No. 7203 of 2021, CWP
No. 7209 of 2021, CWP No. 7213 of 2021, CWP No. 7234 of 2021 and
CWP No. 7743 of 2021.
In addition to above, a number of petitions, filed by candidates who had
sought benefit of relaxation granted by Government, were allowed by
learned Single Judge of this Court on different dates as detailed hereafter
and the judgments passed by learned Single Judge have been assailed in
Letter Patent Appeals before this Court which are being decided in the
bunch of instant matters. The details of such cases in tabulated form are as
under:
Sr.N
o
LPA No. CWP No. Titled Decided on
1 41/2021 2567/2019 HPSSC VsChandermani
19.3.2021
2. 42/2021 2246/2019 HPSSC VsMahesh Thakur
19.3.2021
3. 43/2021 20/2019 HPSSC VsShubham Thakur
6.4.2021
4. 62/2021 1342/2020 HPSSC VsPurshotamKumar
6.4.2021
5. 63/2021 2721/2019 HPSSC Vs AmitPanwar
6.4.2021
6. 64/2021 2775 of 2019 HPSSC Vs Indradevi
6.4.2021
7. 70/2021 3240 of 2019 HPSSC VsMohinder Singh
6.4.2021
8. 71/2021 3239 of 2019 HPSSC Vs GeetaDevi
6.4.2021
9. 116/2021 2548/2021 State Vs SushilChauhan
7.7.2021
10. 117/2021 2552/2021 State Vs KirtiDeep
7.7.2021
11. 118/2021 2550/2021 State Vs JaneshKumar
7.7.2021
12. 119/2021 2559/2021 State Vs VivekThakur
7.7.2021
13. 120/2021 2558/2021 State Vs PankajSharma
7.7.2021
14. 121/2021 2551/2021 State Vs KiranThakur
7.7.2021
15. 122/2021 2564/2021 State Vs AnilSharma
7.7.2021
16. 123/2021 2554/2021 State Vs PardeepKumar
7.7.2021
17. 124/2021 2547/2021 State Vs 7.7.2021
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Shashikala18. 125/2021 2549/2021 State Vs Savita
Kumari7.7.2021
19. 126/2021 2553/2021 State Vs RohitKaundal
7.7.2021
24. Despite communication dated 19.3.2918 from State Government
to the HPSSC, the selections for JOA 556 were ultimately made strictly in
accordance with 2014 Rules. Noticeable, a sequence of events took place
after publication of JOA 556 Advertisement which ostensibly made the
HPSSC to ignore directions of Government. A glance at such events shall
be material to understand the background.
24.1. An Original Application No. 2644 of 2018 (CWPOA 7585 of
2019) titled Akshay Sharma Vs State of Himachal Pradesh and others was
preferred before the Tribunal laying challenge to the communication dated
9.3.2018 of the State Government. On 16.8.2018 the Tribunal passed
interim order in OA 2644 of 2018 in following terms:
“In the facts and circumstances, materials on record and interest ofjustice, subject to keeping fifteen posts of Junior Office Assistantvacant post for the applicants and final outcome of the originalapplications, respondent No.3-Commission shall be free to declarethe result of the process for recruitment to the post of Junior OfficeAssistants.”
The order dated 16.8.2018 was assailed before this Court in CWP
1964/2018, which was disposed of in following terms vide order dated
28.8.2018:
“In this background, we clarify that the appointments to the posts ofJunior Office Assistant (Code 556) shall be strictly in accordancewith the Common Recruitment & Promotion Rules for the posts ofJunior Office Assistant (Information Technology), Class-III (Non-gazetted) in various Departments of Himachal Pradesh Government,as also Advertisement No. 32-3/2016 and not in terms ofcommunication, dated 19th March, 2018.”
Thus, the respondents were directed to make recruitments for JOA 556
strictly as per R&P Rules.
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24.2 A review of judgment dated 28.8.2018 of this Court in CWP
1964/2018 was sought by those candidates who supported the
communication dated 9.3.2018 of the State Government. Review Petition
82 of 2018 was decided in following terms on 5.11.2018:
“5. Be that as it may, as the matter is sub-judice before the learnedTribunal and the Committee which has submitted its report on21.08.2017, has been so constituted by the learned Tribunal, itsrecommendations, can be looked into by the learned Tribunaluninfluenced by any observations made by this Court in theperspective of the Common Recruitment & Promotion Rues, in thebackdrop of the controversy involved in the application before it.”
The effect of judgment dated 16.8.2018 in CWP 1964/2018 was diluted
and the matters were left open to be decided by the Tribunal.
24.3 Another Original Application No. 7397 of 2018 titled Naresh
Kumar and others came up for hearing before the Tribunal on the ground
that candidates with higher qualification could not be considered for
selection as settled by Supreme Court in Zahoor Ahmed Rather Vs
Sheikh Imtiaz Ahmed [ (2019) 2 SCC 404 ] and an order dated
21.12.2018 came to be passed by the Tribunal directing HPSSC to make
selections against post code 556 strictly as per Common R&P Rules and
also in consonance with decision of Supreme Court in Zahoor Ahmed
Rather (Supra). This order became subject matter of challenge in CWP
161 of 2019 titled Bhupinder Sharma Vs State of H.P. and others before
this Court. An interim order dated 11.1.2019 was passed in CWP 161 of
2019 to the following effect:
“Meanwhile, the operation of impugned order dated 21.12.2018(Annexure P-7), passed by Himachal Pradesh AdministrativeTribunal, in O.A. No. 7397 of 2018, shall remain stayed. However,the Staff Selection Commission shall only allow the eligiblecandidates to participate in the process.
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24.4. On 23.2.2019 HPSSC declared result of post code 556. Total 596
candidates were selected taking into consideration the R&P Rules and
remaining 2400 candidates were rejected. Aggrieved against their ouster
from selection process, many rejected candidates approached The Tribunal.
On 26.2.2019 the Tribunal directed status quo to be maintained with
regard to issue of appointment letters in pursuance to declaration of result
of post code 556 by HPSSC in OA No. 677/2019 (CWPOA 20 of 2019).
Aggrieved against order dated 26.2.2019 passed by the Tribunal a group
of selected candidates approached this Court by filing CWP 629 of 2019.
24.5. Certain candidates whose applications were rejected by the HPSSC
on the ground that they had not acquired the technical qualification from a
recognised institute filed application in CWP 161/2019 as interveners. On
21.5.2019 Division Bench of this Court passed an interim order in CWP
161/2019 in following terms:
“In some of the matters, which have been adjourned for 17.6.2019,
learned Advocate General has sought time for constitution of
committee to examine equivalence of academic/technical
qualification. Let the said committee comprising of 3 to 5 experts be
constituted within two weeks, which will examine all the issues
regarding recognition and genuineness of the qualifications, which
are claimed to be equivalent or higher than those prescribed under
the Recruitment and Promotion Rules. The question whether
equivalent qualification will be eligible for the advertised post is
kept open to be decided at the appropriate stage. Meanwhile, it
shall be 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 such candidates are
possessing qualification strictly as per R&P Rules. These
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appointments will be a stop gap arrangement and subject to
outcome of these writ petitions”
24.6. The committee appointed by the Government vide proceedings
dated 15.6.2019 considered three issues and made its recommendations in
following terms:
(i) Equivalence of the academic/ technical qualifications prescribed
under the Recruitment and Promotion Rules for the post of Junior Office
Assistant (IT)
Recommendation
Thus, keeping in view the facts and circumstances narrated as above the
committee unanimously concluded that no equivalent qualification can be
considered/ recommended in the absence of specific clause to this effect in
the R&P Rules.
(ii) Recognition of the institutions imparting trainings and running
courses in computer/ IT related subjects;
Recommendation
Thus, keeping above in view, the committee agreed that only qualification
obtained from recognised institute be considered for recruitment for
JOA(IT) and ZONE OF CONSIDERATION/ selection cannot be expanded
after start of selection process.
(iii) Higher qualification vis-à-vis the minimum essential qualifications
prescribed under the Recruitment and Promotion Rules for the post.
Recommendation
Hence, the committee was in consensus that the candidates with higher
qualification cannot be considered for appointment to the post of JOA(IT)
under the existing R&P Rules.
24.7. A division bench of this Court decided CWP 161/2019 and 629
/2019 by a common judgment dated 29.08.2019. So far as the claim of the
candidates with higher qualifications is concerned, the same was declined
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on merits, however, the claim of candidates having qualified from
institutes not considered recognized by State/ HPSSC was left open. The
HPSSC while declaring the result of post Code 556 had declared only
those candidates successful who fulfilled the prescribed essential
qualifications as per R&P Rules. On 17.09.219, HPSSC declared the
revised result. Thus, in pursuance to the selection process for post Code
556 only those candidates were selected who strictly held the
qualifications as per Advertisement and R&P Rules.
25. On 20.08.2019, amendment was proposed in 2014 Rules. The
candidates holding the equivalent qualifications for post Code 556
approached this Court by way of CWP No. 2246 of 2019, in which interim
direction was issued vide order dated 11.09.2019 in the following terms: -
“In the interim, the appointments, if any, of the selected candidate(s)
against the post of J.O.A(IT) post code-556, shall be subject to the
order to be passed in the application on the next date of hearing
after taking on record the version of the respondents.”
26. On 06.12.2019, the State Government directed the HPSSC to treat
the recruitment process for post Code 556 concluded with directions to re-
advertise/filled the unfilled and new posts after Notifications/Publication
of new common R&P Rules, which were said to be under active
consideration of the Department of Personnel. The writ petitions were
filed with the reliefs identical to CWP No. 2246/2019. On 15.10.2020, a
Division Bench of this Court in a bunch of matters lead case being CWP
No. 2246 of 2019, again reiterated that the selections made pursuant to the
Notification in issue would remain subject to outcome of these petitions.
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The R&P Rules were finally amended and fresh Advertisement for the
post of JOA(IT) was issued against post Code 817 on 21.09.2020. On
15.10.2020 in bunch matters referred to hereinabove, the following order
was passed by this Court:-
“Pursuant to Advertisement No.36-2/2020, dated 21.09.2020, issued by
respondent-HPSSC, to the posts of Junior Office Assistant (IT), the
respondent-H.P. Staff Selection Commission, Hamirpur, is permitted to
proceed with the recruitment process, however, the final result shall not
be announced without permission of this Court. Application stands
disposed of.”
27. The HPSSC declared the result of Written Objective Type
Screening Test against post Code 817 and provisionally shortlisted total
19024 candidates for typing skilled test.
28. Thus, three successive Advertisements were issued by the HPSSC
for recruitment to the post of JOA(IT) but as the irony would have been,
none of the selection processes have attained finality. There is challenge
to the final selection made in post Code 447 by those who held the
qualifications strictly in terms of R&P Rules. Challenge to selection
process for post Code 447 is also there by the candidates who claimed
equivalent qualifications as per R&P Rules but remained unsuccessful.
The selection process against post Code 556 had also been challenged by
those who either held higher or equivalent qualifications or qualifications
from institutes considered not recgnised. As regards the persons with
higher qualifications probably their fate stands sealed by the judgment
passed by a Division Bench of this Court in CWP No. 161 of 2019, but all
other challenges were still alive.
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29. As regards the selection process for JOA 447, we already have
held the decision of State Government dated 21.8.2017 and 18.9.2017 as
also the selections/appointments made in pursuance thereto as legal and
valid. Now the next question which remains to be decided relates to the
selection process undertaken by the HPSSC for JOA 556 and the conduct
of respondents-State in respect thereof. As noticed above, the
advertisement for the Post Code 556 for 1156 posts was issued by the
HPSSC on 18.10.2016. Total 85 posts out of advertised posts were to be
filled on regular basis and rest on contract basis. The prescribed minimum
essential qualification was again as per R & P Rules and, therefore, in the
same language as in the case of Post Code 447. Despite the
communication of the State Government to HPSSC dated 19.3.2018 to
adopt the same procedure in selection process as was adopted in selection
process of Post Code 447 in pursuance to the Government decision dated
21.8.2017 read with 8.9.2017, the selections and appointments were made
by applying the 2014 Rules strictly. Thus, the allowance given to
candidates in selection process of Post Code 447 was withdrawn in
selection process of Post Code 556. The reason, as appears from the
record, was various interim orders passed by Tribunal/Courts from time to
time and also the constitution of another Equivalence Committee by the
State Government, which had recommended to apply the 2014 Rules
strictly without deviation. Noticeably, out of 1156 advertised posts only
596 candidates were declared qualified, selected and appointed.
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30. Evidently, the reason for constitution of another equivalence
committee was an interim order passed on 21.5.2019 by a Division Bench
of this Court in CWP No. 161 of 2019. The second Equivalence
Committee had given its recommendations on 15.6.2019.
31. The question that arises for determination is whether the
application of different set of rules contemporaneously for the same post
by the respondents is justified? The only defence the respondents are
relying is an interim order passed by Division Bench of this Court on
21.5.2019 in CWP No. 161 of 2019 and the consequent constitution of
second equivalence committee. The perusal of aforesaid order, however,
reveals that there was no direction from this Court as such for appointment
of equivalence committee. It was specifically noticed that the learned
Advocate General had sought time for constitution of Committee to
examine equivalence of academic/technical qualification. It was in this
context that this Court ordered for appointment of an equivalence
committee required to examine all issues regarding recognition and
genuineness of the qualifications which were claimed to be equivalent or
higher than those prescribed under the R & P Rules. It is worth noticing
that vide same order the question whether equivalent qualification will be
eligible for the advertised post was kept open to be decided at the
appropriate stage. In this view of the matter, the respondents cannot be
allowed to take shelter of aforesaid order dated 21.5.2019 passed in CWP
No. 161 of 2019 and especially when even while disposing of the said writ
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petition finally this Court had left the question of equivalence and
recognition institutes open.
32. There is nothing on record to suggest that the State Government
having once issued communication dated 19.3.2018 had ever issued any
correspondence subsequently to withdraw the directions issued to HPSSC.
In absence of such an exercise, it is not understandable as to on what basis
the HPSSC declared the result by considering the qualifications strictly as
per the R & P Rules. Probably, this had resulted in view of interim orders
passed in different applications/petitions filed before the Tribunals/Courts.
Be that as it may be, the question as posed above is still alive. The mere
fact that second equivalence committee was constituted and it had
recommended to apply the 2014 Rules strictly cannot be held sufficient
reason for the respondents to ignore their earlier decision dated 21.8.2017
made applicable to Post Code 556 vide communication dated 19.3.2018.
Indisputably, these decisions were neither withdrawn nor nullified by any
subsequent act of the State Government. Once the State Government had
exercised its power to relax the R & P Rules, there had to be a conscious
decision again of the State Government to revert back to the original
position, which is clearly missing in the instant case. There is nothing on
record to suggest that the recommendations made by second equivalence
committee were even considered by the Government/ employer much less
accepted at any stage. That being so, the recommendations of second
equivalence committee cannot by themselves have the effect of nullifying
the decision dated 21.8.2017/9.3.2017 made applicable to Post Code 556
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vide communication dated 19.3.2018. Thus, the denial of the right to all
persons similarly situated to those, who were considered for selection in
Post Code 447 from outside the purview of 2014 Rules is clearly arbitrary
and needs to be interfered with.
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 JOA 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:
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(a) CWPOA 34 of 2019 is dismissed. CWPOAs 2253, 2289, 2290,
2388, 2394 and 7681 of 2020 have been rendered infructuous.
(b) CWPOA No. 7585 of 2019 titled Akshay Sharma Vs State of H.P.
and others is dismissed
(c) CWPOA 6985 of 2020, CWP No. 2329 of 2021, CWP No.2361 of
2021, CWP No. 2420 of 2021, CWP No. 2421 of 2021, CWP No.
2422 of 2021, CWP No. 2423 of 2021, CWP No. 2426 of 2021,
CWP No. 3111 of 2021, CWP No. 3112 of 2021, CWP No. 3116
of 2021, CWP No. 3133 of 2021, CWP No. 3134 of 2021, CWP
No. 3137 of 2021, CWP No. 3141 of 2021, CWP No. 3142 of
2021, CWP No. 3144 of 2021, CWP No. 3148 of 2021, CWP No.
3151 of 2021, CWP No. 3182 of 2021, CWP No. 3184 of 2021,
CWP No. 3887 of 2021, CWP No. 3888 of 2021, CWP No. 3891
of 2021, CWP No. 3892 of 2021, CWP No. 3893 of 2021, CWP
No. 4032 of 2021, CWP No.4033 of 2021, CWP No. 4349 of 2021,
CWP No.4387 of 2021, CWP No. 4503 of 2021, CWP No. 4621 of
2021, CWP No. 4903 of 2021, CWP No. 5078 of 2021, CWP No.
5129 of 2021, CWP No. 5141 of 2021, CWP No. 5142 of 2021,
CWP No. 5148 of 2021, CWP No. 5175 of 2021, CWP No. 5189
of 2021, CWP No. 5193 of 2021, CWP No. 5673 of 2021, CWP
No. 5674 of 2021, CWP No. 5760 of 2021, CWP No. 5761 of
2021, CWP No. 6465 of 2021, CWP No. 6467 of 2021, CWP No.
6410 of 2021, CWP No.6557 of 2021, CWP No. 7179 of 2021,
CWP No. 7203 of 2021, CWP No. 7209 of 2021, CWP No. 7213
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of 2021, CWP No. 7234 of 2021 and CWP No. 7743 of 2021 are