The Supreme Court observed that even though the State has power to relax the eligibility criteria, the same cannot be done mid-stream without giving wide publicity of such change and opportunity to similarly situated candidates to apply and compete with others.

The court also added that if the extant Rules provide for the power to relax the eligibility criteria, the same could be exercised only if such power is reserved in the advertisement.

The bench was considering an appeal that raised the issue of recruitment on the post of Junior Office Assistant, a Class III (Non-gazetted) post, under the Government of Himachal Pradesh.

The Supreme Court directed that the relaxation / clarificatory order as approved by the State cabinet after the last date fixed by the advertisements for receipt of applications from candidates, is not legally sustainable, particularly, when no opportunity was afforded to similarly placed persons, who might have been left out, to apply and compete with those candidates who, though not eligible as per the terms of the advertisement, had applied thereunder.

A Two Judge Bench of Justice Hrishikesh Roy and Justice Manoj Mishra observed that “the merit list prepared under the second advertisement for Post Code 556 shall not be re-drawn by including such candidates who, though not eligible, became eligible pursuant to relaxation / clarificatory order dated 21.08.2017 / 18.09.2017 read with communication dated 19.03.2018; and (b) there shall be no segregation of seats advertised under the third advertisement dated 21.09.2020 for Post Code 817. Thus, recruitment for Post Code 817 shall be strictly in accordance with the extant Rules, as notified”.

Advocate Kaveeta Wadia appeared for the Appellants, whereas AG Anup Kumar Rattan appeared for the Respondents.

The brief facts of the case were that in the year 2014, Himachal Pradesh, Department of Personnel, Junior Office Assistant (Information Technology), Class-III, (Non-Gazetted), Ministerial Services, Common Recruitment and Promotion Rules, 2014, framed under the proviso to Article 309 of the Constitution of India, were notified with a view to have common recruitment and promotion rules for the post of JOA in various departments of the Government. Again in 2015, Himachal Pradesh Subordinate Services Selection Board invited applications for selection / appointment on 1421 post (s) of JOA prescribing same qualifications as in Rule 7 of the 2014 Rules. In between, candidature of several candidates was rejected for not possessing essential qualifications as prescribed by the 2014 Rules. Later, the Government passed an order, whereby many candidates who, as per the 2014 Rules, were not eligible, came within the zone of consideration and as such included in the select list, resulting in ouster of such candidates who, though lower on merit, were otherwise eligible as per the 2014 Rules. This merit list was challenged by some of the ousted candidates who were aggrieved by relaxation of the eligibility criteria as it expanded the zone of consideration and thereby reduced their chance of selection. It was prayed that the select list must comprise of only such candidates who hold the prescribed minimum eligibility qualifications by the last date for receipt of the application under the advertisement.

When the matter reached High Court, it was held that the decision to relax the essential qualifications was within the powers of the State Government conferred by Rule 18 of the 2014 Rules, and hence, it was rightly applied on the recruitment exercise carried out under the first advertisement dated 2015. Further, in absence of any clarity as to the kind of curricula required to obtain the required diploma / certificate to become eligible, the decision of the State Government cannot be faulted, particularly, when there is no clarity as to the authority competent to accord recognition. The appellants therefore approached the Apex Court claiming that they hold the requisite eligibility qualifications prescribed by the 2014 Rules as well as the advertisement; they participated in the recruitment exercise for Post Code 556 and were placed in the merit-list. It was also claimed that if candidates who were otherwise not eligible, but for the relaxation, are permitted to be considered, the merit-list might have to be re-drawn and they may be ousted and replaced by those who, otherwise, were ineligible.

After considering the submission, the Bench observed that the law is settled that if the extant Rules provide for the power to relax the eligibility criteria, the same could be exercised only if such power is reserved in the advertisement, and when this power is exercised, there must be wide publicity of its exercise so that persons who are likely to benefit by exercise of such power may get opportunity to apply and compete.

In the instant case, the Bench found that it is not shown that the advertisement reserved the power to relax the essential eligibility qualifications specified in the advertisement at any later stage.

Rather, “the advertisement is specific that eligibility criteria must be fulfilled by an aspiring candidate by the last date fixed for receipt of the application. It is not demonstrated that after the decision to relax the eligibility criteria was taken, the same was widely publicized, and the last date to apply under the advertisement was extended to enable persons benefited by such relaxation to apply and compete”, added the Bench.

Thus, the Bench elaborated that the power to relax the eligibility criteria, even if it existed, was not exercised in consonance with the settled legal principles and it violated the constitutional mandate enshrined in Articles 14 and 16 of the Constitution.

Further, the Bench found that the clarificatory / relaxation order providing equivalence to certain courses was not founded on empirical data that courses identical, or by and large identical, to the one specified in the extant Rules were being conducted by various recognized institutions or Universities under different nomenclatures.

Thus, the Bench clarified that if there existed a statutory procedure for granting recognition, an Institution cannot be considered recognized dehors that procedure, and amounts to changing the eligibility criteria midway.

At the same time, finding that there exists no provision in the extant Rules or the advertisement to treat any other qualification as higher or equivalent to the one specified therein, the Apex Court observed that the claim of such candidates, who could not demonstrate that they held the prescribed essential qualifications, is liable to be rejected.

Lastly, the Apex Court also clarified that the appointments already made under the first advertisement (for Post Code 447) shall not be disturbed merely because some of the appointees may have gained eligibility based on the order of relaxation / clarification dated Aug 21, 2017, which was approved by the State cabinet.

Cause Title: ANKITA THAKUR & ORS. v. THE H.P. STAFF SELECTION COMMISSION & ORS. [Neutral Citation: 2023 INSC 992]

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