Savita vs State Of Haryana & Ors.

“i.

to issue an appropriate writ, order or direction including a writ in the nature of Certiorari quashing the speaking order dated 23.02.2024 (P-14) whereby the candidature of the Respondent No.4 has been recommended for appointment by diluting the Haryana Public Relations Department (Group B) State Service Rules, 1997 & conditions incorporated in the advertisement dated 10.09.2015 (P-1) for appointment to the post of District Information & Public Relation Officer as the same is arbitrary, unjust & violative of Articles 14 & 16.

ii.

issue an appropriate writ, order or direction including a writ in the nature of mandamus directing the Respondent to consider the candidature of the Petitioner for appointment to the post of District Information & Public Relations Officer (DPRO), Class-II, Group-B in General Category on account of the fact that the Respondent No.4 is ineligible in light of the admission made by the Respondent No.1 in the reply dated 09.12.2020 (P-8) that Pal Pal Newspaper is a Regional Daily Newspaper and the Petitioner is the next meritorious candidate at serial No.1 of the unselected list (P-5).”

“12.

That for the purpose of deciding the main issue i.e "Whether Pal Pal Newspaper is a national daily newspaper?" in the first instance, opportunity of hearing was given to the petitioner as well as Respondent No.4 on 21.08.2023 for making submissions in support of their contentions. The petitioner submitted documents including information received under RTI Act from Director Public Relations Haryana mentioning that Pal-Pal Newspaper is a Regional Daily Newspaper. The petitioner also submitted other documents containing information obtained by her under RTI Act from Director Public Relations, Kaithal mentioning that Sh. Sumit Chawla was not working as a reporter during the tenure for which he had submitted his experience certificate as his name is not in the list provided by DPR Kaithal under RTI. On the other hand, Respondent No.4 submitted in his representation that there is no category of newspapers which can be called as National Newspaper. He submitted that as per the information obtained by him under RTI Act from Ministry of Information & Broadcasting, Shastri Bhawan, New Delhi there is no category called Daily National Newspapers and Periodicals are registered in RNI under Press Registration Books Act 1987 as a Daily/ Weekly/ Fortnightly/ Monthly etc. Further as per information received from Director General, Public Relations & Languages, Haryana there are no such rules available in the Directorate for deciding whether Daily Newspaper is National or not. It was however mentioned that newspapers which have their circulation in various States of the country is considered as Daily National Newspaper. It has been mentioned in the representation that since Pal-Pal newspaper has circulation in more than 5 states, therefore his experience certificate is valid.

12.

That in view of these conflicting claims and contradictory information provided under RTI Act by the same office, the respondent Commission was left with no option but to seek clarification in this regard from the Government. Accordingly, a letter dated 14.12.2023 was written to the Additional Chief Secretary to Govt, Haryana, Information, Public Relations and Language Dept., Haryana to clarify:-A- "Whether Pal-Pal newspaper is a National Daily Newspaper or not?" B- "What are the guidelines with regard to classifying any newspaper as National Daily Newspaper? In response thereto, letter dated 20.02.2024 was received from Director General, Information, Public Relations and Languages Dept., Haryana wherein it has been mentioned that the office does not have any specific definition of 'National Daily Newspaper". The newspapers are classified as Small, Medium and Big according to their circulation. As per said classification "Pal Pal" newspaper has been categorized as Small Newspaper. The letter also mentions that efforts were made to gather the relevant information from the concerned offices of Central Government also, however no one was able to provide a definitive definition or clarification regarding this issue. Copy of the letter dated 20.02.2024 is attached as Annexure R-2/2.

14.

That in light thereof, the Commission came to the conclusion that since the word "national defined in the relevant newspaper" is not Service Rules and no appropriate definition of "National Newspaper" can be provided by any of the concerned offices either of the State Government or the Central Government, hence Respondent No 4 cannot be held ineligible only for the reason that he has not worked in a "National Newspaper" and thus the condition of having "2 years media experience in national newspaper", cannot sustain qua the determination of eligibility of the candidate. Consequently, the Commission deduced that the decision of the Department Committee that Sh. Sumit Chawla is ineligible as Pal Pal newspaper is not a National Newspaper becomes invalid.

15.

That thereafter, the second issue "Whether Sh. Sumit Chawla was having requisite 2 years experience of working in national daily newspaper?" was decided. That it is pertinent to mention here that at the time of applying for the post in question Sh. Sumit Chawla had mentioned in his application form that he was having experience of 2 yrs 5 months (w.e.f 01.05.2013 to 06.10.2015) in "Pal Pal newspaper". He had mentioned that he was reporting for this newspaper and he was getting salary of Rs.3000 per month. He submitted an experience certificate dated 06.10.2015 from Pal Pal Newspaper which mentioned that Sh. Sumit Chawla is working as reporter in Kaithal since 01.05.2013. However, the petitioner in her representation dated 21.08.2023 mentioned that as per information obtained by her under RTI Act from Director Public Relations, Kaithal, Sh. Sumit Chawla was not working as a Reporter during the tenure for which he had submitted his experience certificate. Hence, comments of Sh. Sumit Chawla were sought regarding these allegations vide letter dated 20.02.2024. Sh. Sumit Chawla had submitted his response vide letter dated 21.02.2024 without controverting the allegations leveled against him by Ms. Savita. Hence it was recommended by the Commission that the veracity of his work experience may be checked by the Department before offering him appointment. In view of above, Government may consider to offer appointment to Sh. Sumit Chawla in pursuance of the recommendation made by the Commission vide letter dated 22.09.2020, subject to verification of his experience certificate.” (Emphasis added)

“Essential Qualifications (for the post of District Information & Public Relations Officer-Cat. No. 7):-

a)

Master's degree in Mass Communication or Journalism from a recognized University and two years media experience in a National Daily Newspaper or Television Channel or Publicity Organization of Government or Public Undertaking or University; OR

M.A. (Hindi or English) from a recognized University and one year Post Graduation Diploma in Mass Communication or Journalism and two years media experience in a National Daily Newspaper or Television Channel or Publicity Organization of Government or Public Undertaking or University; Note: The required experience should be after attaining the requisite qualifications.”

9.(1) Recruitment to the service shall be made:-

(a)

to (e) xxxxxx

(f)

in the case of Public Relations Officer [including Public Relations Officer (Research & Reference), District Public Relations Officer):-

(i)

50% by promotion from amongst Superintendents (District Cadre); OR Assistant Public Relations Officer, Assistant Public Relations Officer (Publication), Assistant Information Officer, Assistant Editor, feature Writer, Copy Writer, Cataloguer, Librarian, Senior Evaluator; OR Staff Reporter, Display Assistant, District Publicity Organiser, Assistant Editor (Patrika); and

(ii)

50% by direct recruitment; or

(iii)

by transfer or deputation of an officer already in the service of any State Government or the Government of India;

(g)

to (aa) xxxxxx

APPENDIX-B (see Rule 7)

(1)

to (5) xxxxxx

Sr. Designation Academic Qualifications Academic No. of Posts and Experience, if any, Qualifications and for Direct Recruitment or Experience, if any, for by Transfer appointment by Promotion Public ESSENTIAL (i) Master's (i) Five years Relations degree in experience as Officer Mass Communication or Superintendent [including Journalism from a (District Cadre) Public recognized provided they are Relations university and two years Graduate; or (ii) Officer media Assistant Public (research experience in a National Relations Officer and Daily Newspaper or (Publication), reference), Television Channel Assistant District or Publicity Organization Information Officer, Public of Government or Public Assistant Editor, Relations Undertaking or Feature Writer, Copy Officer] University; OR M.A. Writer, Cataloguer, (Hindi or English) from a Librarian, Senior recognized university Evaluator with five and one year Post years experience Graduation Diploma in provided they are Mass Communication or Graduate; or (iii) Journalism and two Staff Reporter, years media experience Display Assistant, in a District Publicity National Organiser, Assistant DailyNewspaper or Editor (Patrika) with Television Channel or six years experience, Publicity Organisation of provided they are Government or Public Graduate. Undertaking or University; Note:- The required experience should be after attaining the requisite qualifications.

“It is further stated that in case of Sh. Sumit Chawla, Constituted Committee informed that experience certificate of Pal Pal for the period from 01.05.2013 to 31.12.2015, which is not a National Daily Newspaper as required according to departmental service rules. Therefore, he is not eligible.”

(Emphasis added)

“As per essential qualifications prescribed for the post of District Information and Public Relation Officer apart from possessing the essential qualifications, it was mandatory to have a two years media experience in a 'National Daily Newspaper' or a Television Channel or Publicity Organization of Government or Public Undertaking or University. Petitioner is claiming to be eligible on the strength of qualifications possessed as also the two years experience that he has as a Reporter in 'Pal Pal Newspaper', which is stated to be published from Sirsa, Haryana. It is the case of the petitioner himself that there is no definition of the term 'National Daily Newspaper' as per information sought under the Right to Information Act from the respondent/department. In the absence of a formal definition of the term 'National Daily Newspaper', the same would have to be construed as understood in common parlance and viewed by a prudent and rational thinking person. The documents at Annexures P-4 and P-5 certainly are not conclusive as regards 'Pal Pal' being a 'National Daily Newspaper’.

Relevant parameters in such regard, in the considered view of this Court would be the extent of circulation of 'Pal Pal' viewed on a PAN India basis as also the number of subscribers/readers. Even though, the relevant material/numbers are not forthcoming from the pleadings on record, yet the task of this Court in forming an opinion in this matter has been made easy on account of response of the learned senior counsel to a query put, wherein it was fairly conceded that the circulation of 'Pal Pal Newspaper' is confined to the State of Haryana and to certain parts of Rajasthan. This in itself would be sufficient to conclude that 'Pal Pal' is not a 'National Daily Newspaper'. In other words, petitioner does not fulfill one of the mandatory essential eligibility criteria i.e. two years media experience in a 'National Daily Newspaper. No infirmity, as such, is found in the decision of the 3rd respondent in having held the petitioner ineligible for the post in question on the basis that 'Pal Pal' is not a 'National Daily Newspaper'.

The submission advanced by learned senior counsel as regards a recommendation having already been made by the Haryana Public Service Commission in favour of the petitioner and thereby vesting an absolute right in the petitioner to be appointed is not well founded. Even if, the petitioner has participated in a selection process comprising of a written test and interview and has secured the highest merit position, still it would not preclude the respondent department/appointing authority to examine the eligibility of the petitioner against the backdrop of the essential qualifications prescribed in the advertisement vide which the recruitment process has been initiated.” (Emphasis added)

“Keeping in view the said observations, we are of the considered view that the view of the expert committee namely the Haryana Public Service Commission which was the selecting body and which had recommended the names, should have been taken into consideration by the Learned Single Judge before rejecting the case of the appellant in limine.

In such circumstances, this Court is of the opinion that the order of the Learned Single Judge is not sustainable and the same is accordingly set aside and CWP-21463-2020 is restored to its original number and ordered to be heard along with CWP-15999-2020 which is now stated to be pending for 27.07.2022. It will be be imperative to the appellant to implead the Haryana Public Service Commission as respondent before the Learned Single Judge.”

(Emphasis added)

“8.

Keeping in view the above, the present petition is disposed of with a direction to respondent No.4-Haryana Public Service Commission to pass appropriate order within a period of four weeks of the receipt of copy of this order so as to decide the eligibility of the petitioner qua his claim to compete for the post of District Information and Public Relation Officer as advertised vide Advertisement dated 10.09.2015. The Commission is requested to take into consideration all the relevant facts, rules, regulations prescribing the eligibility for the post in question and the qualification/other curriculum activities possessed by the petitioner.” (Emphasis added)

“The Hon'ble High Court vide its order dated 27.07.2023 has directed the Commission to decide the eligibility of the petitioner for the post of District Information and Public Relations Officer. In view of the submissions made by Sh. Sumit Chawla, Ms. Savita and Sh. Parmesh, the main issue which requires to be determined are as under:-

(I)

Whether Pal Pal Newspaper is a national daily newspaper?

(II)

Whether Sh. Sumit Chawla was having requisite 2 years experience of working in a national daily newspaper?

It is essential to mention here that at the time of applying for the post in question, Sh. Sumit Chawla had mentioned in his application form that he was having experience of 2 yrs. 5 months (w.e.f. 01.05.2013 to 06.10.2015) in Pal Pal newspaper. He had mentioned that he was reporting for this newspaper and he was getting salary of Rs.3000 per month. He submitted an experience certificate dated 06.10.2015 from Pal Pal Newspaper which mentioned that Sh. Sumit Chawla is working as reporter in Kaithal since 01.05.2013. No proof of salary was attached by him with his application form.

Both the issues are decided as under: -

i) Whether Pal Pal Newspaper is a national daily newspaper?

For the purpose of deciding the first issue, it was deemed appropriate that clarification in this regard may be sought from the Government. Accordingly letter dated 14.12.2023 was written to Additional Chief Secretary to Govt. Haryana, Information, Public Relations and Language Deptt., Haryana to clarify:-

i)

Whether Pal Pal newspaper is a National Daily Newspaper or not?

ii) What are the guidelines with regard to classifying any newspaper as National Daily Newspaper?

Since no response to the said letter was received, therefore, a reminder dated 16.02.2024 was issued. In response thereto, letter dated 20.02.2024 has been received from Director General, Information, Public Relations and Languages Deptt., Haryana wherein it has been mentioned that the office does not have any specific definition of "National Daily Newspaper". The newspapers are classified as Small, Medium and Big according to their circulation. As per said classification "Pal Pal" newspaper has been categorized as Small Newspaper. The letter also mentions that efforts were made to gather the relevant information from the concerned offices of Central Government also, however, no one was able to provide a definitive definition or clarification regarding this issue.

In view of above, it is observed as under:-

In common parlance, a national newspaper is understood to be one which has vide circulation across the country. By no stretch of imagination can Pal Pal newspaper be considered a National Newspaper as it has very low circulation. However, since there is no classification of a National newspaper as reported by Director General, Information, Public Relations and Languages Deptt., Haryana, hence the provision in the rules requiring experience of 2 years in a National newspaper is, meaningless. The said Rules need to be amended by the Government suitably.

2.

In the absence of definition of National Daily Newspaper, the condition of having 2 years media experience in a national newspaper does not sustain qua the determination of eligibility of the candidate. Even the decision of the Department Committee that Sh. Sumit Chawla is ineligible as Pal Pal Newspaper is not a National Newspaper becomes invalid.

(iii) Whether Sh. Sumit Chawla was having requisite 2 years experience of working in a national daily newspaper?

It is pertinent to mention here that Ms. Savita had alleged in her representation dated 21.08.2023 that as per information obtained by her under RTI Act from Director Public Relations, Kaithal, Sh. Sumit Chawla was not working as a Reporter during the tenure for which he had submitted his experience certificate. Still further alleged that Sh. Sumit Chawla has not given any proof regarding the salary he received from Pal Pal Newspaper, he has submitted documents to show that he was getting honorarium, which is entirely different from salary. Hence comments of Sh. Sumit Chawla were sought regarding these allegations vide letter dated 20.02.2024. Sh. Sumit Chawla has submitted his response vide letter dated 21.02.2024 without controverting the allegations leveled against him by Ms. Savita. Hence it requires to be verified if he was actually working as a Reporter in Kaithal at the time for which he had submitted his experience certificate and whether he was on the rolls of Pal Pal newspaper. The veracity of his work experience may be checked by the Department before offering him appointment.

In view of above, Government may consider to offer appointment to Sh. Sumit Chawla in pursuance of the recommendation made by the Commission vide letter dated 22.09.2020, subject to verification of his experience certificate." (Emphasis added)

“2.

These appeals emanate from the common impugned judgment dated 23.04.2021 (hereinafter "Impugned Judgment") passed by the Division Bench of the High Court of Himachal Pradesh at Shimla (hereinafter "High Court"), whereby the judgment of the Single Judge of the High Court was set aside. The Division Bench held that neither the appellant Himakshi (hereinafter "selected candidate") nor the respondent no. 1 -Rahul (hereinafter "unsuccessful candidate") satisfied the essential qualifications at the time of recruitment and appointment.

3.

At its core, the question involved is whether a candidate who did not possess the required work experience at the time, of recruitment could still be selected and appointed, either on the basis of having a preferred higher qualification or by exercising supposed relaxation of the eligibility conditions.

4.

Civil Appeal No. 5942 of 2023 has been preferred by the selected candidate Himakshi, assailing the impugned judgment to the extent it sets aside her appointment, challenge to which was rejected by the Single Judge of the High Court. Civil Appeal No. 5943 of 2023 has been preferred by the unsuccessful candidate, Rahul, challenging the same judgment insofar as it rejects his prayer for appointment and consequential relief, despite invalidating the selection process to the post in question. Since there is a commonality of facts and legal issues, both appeals are being dealt with by this common judgment. For the sake of convenience, the parties are being referred to as per their status in Civil Appeal No. 5942 of 2023.

XX XX XX

19.

In the said factual backdrop, the following issues arise for our consideration: (i) Whether a candidate not possessing the essential qualification of five years' work experience as on the relevant date could nonetheless be considered for selection on the strength of having a higher academic qualification, on account of the same being indicated as a preference under the R&P Rules; (ii) Whether the power of relaxation could be exercised in favour of a candidate not possessing the essential qualification as prescribed in the R&P Rules, and if so, whether such relaxation was in fact exercised in favour of the appellant in accordance with law; and (iii) Whether the selection and appointment of the appellant can be sustained in law, and if not, whether any direction for appointment of any other candidate is warranted.

XX XX XX

26.

The legal position regarding the impermissibility of substituting prescribed qualifications with higher degrees, in the absence of an express enabling provision, stands fortified in the judgment of this Court in Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, where it was held that in absence of a specific statutory rule or a provision in the advertisement, the recruiting agency cannot broaden the eligibility criteria by treating a higher qualification as a replacement for the mandatory essential' qualification'. The relevant portion of the judgment is reproduced for ready reference:-

"26.

...it would not be permissible to draw an Inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine."

27.

It is trite law that the terms of the recruitment rules and the advertisement form the basis of the selection process and are binding on both, the candidates as well as the recruiting agencies. Any departure therefrom, unless expressly permitted and properly exercised, would be arbitrary and violative of the principles of selection.

28.

The contention of the appellant that the R&P Rules confer a power of relaxation also requires consideration. In this regard, Rule 18 of the said rules states as thus:-

"18.

Power to Relax Where the Board is of the opinion that it is necessary or expedient to do so, it may be order for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class of category of persons of posts(s)."

XX XX XX

35.

In Rekha Chaturvedi (Smt.) v. University of Rajasthan, this Court had the occasion to look into the power of relaxation and the manner in which the same shall be exercised by the recruiting agency, especially in case of public employment. While the selections of persons in whose favour the relaxation was exercised, albeit without recording any reasons, was sustained on account of their period of service and lapse of time due to the litigation, this Court laid down certain guidelines which may be referred at this point:-

“11.... We, however, feel it necessary to emphasise and bring to the notice of the University that the illegal practices in the selection of candidates which have come to light and which seem to be followed usually at its end must stop forthwith. It is for this purpose that we lay down the following guidelines for the future selection process:

A. The University must note that the qualifications it advertises for the posts should not be at variance with those prescribed by its Ordinance/Statutes.

B. The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/notification for the purpose. The qualifications acquired by the candidates after the said date should not be taken into consideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement/notification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be considered and may even be better than those who apply, can have a legitimate grievance since they are left out of consideration.

C. When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement/notification both that the qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.

D. The University/Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made.

E. The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of. An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are not available."

XX XX XX

38.

In view of the above, this Court is of the considered view that the requirement of "at least five years' experience in computer manufacturing/maintenance company of repute", being an essential qualification, was required to be fulfilled as on the relevant date. A candidate not fulfilling such requirement could not have been treated as eligible merely on the basis of possessing a higher degree or securing a higher rank in merit. The record clearly indicates that the selected candidate, at the time of submission of her application for the purpose of selection, possessed work experience of only about one year, as is evident from the application status and supporting documents furnished by her during the selection process. In such circumstances, the possession of 'M.Tech degree in Electronics and Communication', which is a preferential qualification under the R&P Rules, could not have. been relied upon to either confer eligibility or to justify any relaxation of the essential requirement. The mere possession of such a higher academic degree does not, by itself, render a candidate "otherwise eligible or well qualified" without meeting the requirement of experience within the meaning of the R&P Rules, particularly when the basic eligibility criteria itself remains unfulfilled. Any such approach would amount to substituting the minimum qualification with a preferential one, which is impermissible. The selection of the appellant on such basis, therefore, reflects a clear non-application of mind to the distinction between essential and preferential qualifications and renders any purported relaxation fundamentally flawed.