G.S. SANDHAWALIA, J.
1. The present judgment shall dispose of LPA No. 1861 of 2018, Nidhi Sharma and others vs. State of Haryana and others and CWP No. 8483 of 2021, Sandeep Kumar and others vs. State of Haryana and others.
2. Challenge in the present letters patent appeal by the unsuccessful writ petitioners is to the order of the learned Single Judge passed in CWP No. 26795 of 2016, Shikha Rani and another vs. State of Haryana and others decided on 25.10.2017 which was decided alongwith 6 other cases. In the said writ petition, letter dated 21/27.09.2016 was the subject matter of consideration wherein, clarification had been issued by the Director, Secondary Education, Haryana to the Secretary of the respondentHaryana Staff Selection Commission (in short 'the Commission') that compulsory English was equivalent to optional English in cases of universities which have given a certificate to this effect regarding the posts of TGT English, which had been advertised vide Advertisement No.9/2015 dated 23.07.2015 (Annexure P-2).
3. The learned Single Judge came to the conclusion that the Maharshi Dayanand University at Rohtak (in short 'MDU') had clarified that English as a compulsory subject at the graduate level is equivalent to English as an elective subject and thus, anybody who had cleared B.A. examination with English as a compulsory subject would be deemed to have cleared it with English as an elective subject. Similarly, the contention that the Commission was wrongly allowing persons possessing Post Graduate degrees in English with those persons not having English as an elective subject at the graduation level was also repelled on the ground that once English was there as a compulsory subject at the graduation level, it would apply to the said case also on account of the University having clarified as above.
4. Challenge in CWP No. 8483 of 2021 is to the withdrawal notice dated 22.02.2021 (Annexure P-10) wherein, the Commission in view of the Memo No.2/13-2014 HRM-I(1) dated 19.02.2021 of the Director General Elementary Education, Haryana had decided to withdraw the Advertisement No.9/2015 dated 23.07.2015 whereby 1035 (694 Rest of Haryana + 341 Mewat cadre) posts of TGT English (Group C Services) had been advertised. The ground as such for challenging the said action and the affidavit dated 02.03.2021, which was filed in LPA No. 433 of 2018, was that more than 3 years have lapsed since the department had sent the requisition to the Commission and the appointments could not be made. Therefore, to give a quietus to the litigation, the same had been done. The ground taken in the affidavit is that candidates have become eligible after the amended qualification to the post of TGT, English and who had not applied being not eligible under the advertisement and there were chances of them approaching this Court for further consideration under the said advertisement. It was further averred that the fresh requisition be sent by the Department after the proposed amendment in the statutory Rules.
5. The argument as such by the senior counsel appearing on behalf of the writ petitioners accordingly was that they had been called for interview and the merit list was to be released. On account of litigation, the same was not liable to be withdrawn as the State was estopped as such under the principle of estoppel. It was accordingly argued that there was also an interim stay on 09.10.2020 that the selection may not be finalized and, therefore, the withdrawal by the State was not justified and was arbitrary as it had not preferred any appeal against the order of the learned Single Judge. The principle of “Actus Curiae Neminem Gravabit” was put forth and the plea taken was that the case was also covered by the judgment of the Rajasthan High Court in Deepak Bariya vs. The Rajasthan Public Service Commission, Ajmer and others which had further been upheld by the Division Bench in State of Rajasthan and another vs. Deepak Bariya and others, 2018 SCC online Rajasthan 700 and the said order had not been interfered with on 14.09.2018 in SLP No. 24325 of 2018 preferred by the Rajasthan Public Service Commission, Ajmer.
6. It was further pointed out that some of the aggrieved candidates had earlier preferred CWP No. 4825 of 2021, Ajay and others vs. State of Haryana and others, which had been dismissed on 01.03.2021. The review application filed by the writ petitioners was also dismissed on 28.04.2021 on the ground that they were not party in the writ petition and notice of motion had already been issued in the present writ petition i.e. CWP No. 8483 of 2021. LPA No. 614 of 2021 filed against the orders of the learned Single Judge had been disposed of on 03.08.2021 that they were entitled for hearing in the independent writ petition which is already pending.
7. A perusal of the paper book would go on to show that the posts were advertised vide Advertisement No.9/2015 on 23.07.2015 and the essential qualifications read as under:-
“i. B.A. with at least 50% marks in English as an elective subject and 2 year Diploma in Elementary Education;
OR
B.A. with at least 50% marks as well as in English as an elective subject and 1 year Bachelor in Education (B.Ed.);
OR
B.A. with at least 45% marks as well as 50% marks in English as an elective subject and 1 year Bachelor in Education (B.Ed.) in accordance with NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard;
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Eduction (B.Ed);
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 years B.A. Ed.;
OR
B.A. with at least 50% marks as well as in English as an elective subject and 1 years B.Ed. (Special Education);
ii. In case of B.Ed. English as a teaching subject from a recognized university.”
8. The above essential qualifications were in consonance with the Haryana School Education (Group C) State Cadre Service Rules, 2012 (in short 'the 2012 Rules'). It is not disputed that the written test was held on 07.02.2016. The result was declared on 03.09.2016 and the persons who had qualified the written examination were called for verification and scrutiny of documents between 14.09.2016 to 16.09.2016. The letter dated 21.09.2016 as such was issued on the strength of the clarification which had been sought from the office of the Chief Secretary which had placed reliance upon the letter of the MDU which certified that English compulsory was equivalent to English elective for all purposes of the students who have passed B.A. Part-I to B.A. Part-III from MDU prior to 2011-12 session. Similarly, it was clarified that candidates having M.A. English were eligible for the post of TGT English, though they might not have B.A. English as an elective subject as the candidate possesses the higher qualification in the same line. The Chief Secretary had also issued instructions dated 25.03.2016, which further referred to earlier instructions dated 16.06.1979, which talked about benefit of higher qualifications in the same line to be granted as prescribed in the minimum qualifications applicable to a particular post. Accordingly it was held that the candidates should be considered eligible for the post and necessary provisions be made in the Service Rules.
9. Counsel for the appellant Mr. Gopera has referred to Note 4 of the advertisement that candidates having higher academic or professional qualifications are not eligible unless he/she possesses minimum qualifications. Note 4 reads thus:-
“Note 4. Candidate possessing higher academic or professional qualification will not be eligible unless he/she possesses the minimum qualification including HTET and experience, if any prescribed for the said posts.”
10. It is accordingly contended that the statutory Rule provided that English should be the elective subject and 50% marks in B.A. were required and Rule 7 of the 2012 Rules provided that no person could be appointed to the post in service unless he is in possession of the said qualifications.
11. Thus, it is accordingly contended that the rules of the game had been changed post the written test and the same was not justified and, thus, the learned Single Judge was not correct in coming to the conclusion that compulsory English was equivalent to the elective English.
12. Senior counsel for the writ petitioners and the private respondents, on the other hand, has relied upon the stand of the university which has been appended as Annexure R-3/1 alongwith the affidavit of Secretary of the Commission wherein, the plea taken by the Kurukshetra University was that vide Resolution No. 19 dated 16.11.2016, the Academic Council of the Kurukshetra University had approved recommendations of the Equivalence Committee of the University for considering the B.A. course with English subject as equivalent to B.A. course with the elective English subject. Similarly, the affidavit of respondent No.4-MDU held out that in the meeting dated 11.07.2011, the Academic Council had resolved that English compulsory is equivalent to English elective for all purposes w.e.f. Sessions 2011-12 as per Resolution No. 8 (Annexure R-4/1). The affidavit would go on to show that the respondent-University had taught Literature and Language in the subject of English (compulsory in B.A. with emphasis on English Literature). It is in such circumstances contended by the Senior counsel that it was only a reiteration of the earlier equivalence by the communication which was subject matter of challenge and, therefore, the learned Single Judge was correct in coming to the conclusion and the argument raised that the rules of game were changed was without any basis.
13. Counsel for the State also accordingly submitted that there were justifiable reasons as such for the withdrawal of the advertisement on account of the litigation. It is submitted that since there was an ambiguity in the Service Rules and due to the number of pending Court cases which halted the process of recruitment, the requisition had been withdrawn and the amendment has been done on 07.05.2021 and there were justifiable reasons as such and the action of the State was not arbitrary in any manner.
14.The question, thus, arises is whether the action of the State was justified, firstly in taking clarifications from the office of the Chief Secretary as to whether the candidates who had compulsory English is equivalent to optional English where the universities have given the certificates to that effect and whether Note 4 would come in the way of the State and whether the State was estopped as such from cancelling the advertisement on the principle of estoppel.
15. The above facts would go on to show that reliance was placed upon an earlier letter dated 16.06.1979 which prescribed that if a candidate possesses higher qualification in the same line was liable to be considered as eligible for the said post. The said letter as such was a general letter and not in pursuant to any specific advertisement or to the posts in question and was addressed to all the Administrative Secretaries and Heads of Departments etc. The same reads thus:-
“From
Chief Secretary to Government Haryana
To
1 All the Administrative Secretaries to the Government of Haryana
2 All the Head of Department Haryana
3 All the Commissioners, Ambala, Hisar, Rohtak and Gurgaon Division4 The Registrar Punjab and Haryana High Court Chandigarh
5 All the Managing Directors / Chief Administrators of Boards Corporate/ Public Undertaking in Haryana
6 All the Deputy Commissioners and Sub
Divisional Officers (Civil) in HaryanaDated Chandigarh the 25th March, 2016
Subject:- Minimum qualifications for a post, eligibility of candidates possessing higher qualifications than those laid down as minimum.
Sir/Madam
I am directed to invite your attention to the Haryana Government Instructions issued vide letter No. 34/93/78-5GS-1 dated 16.06.1979 in which it was decided that if a candidate possesses higher qualifications applicable to a particular post then he should be considered as eligible for that post. It has come to the notice of the Government that the provisions of these instructions are not being followed in an appropriate manner while sending the requisition to HSSC/HPSC for the posts in question.
2 After due consideration it has again been decided that if a candidate possesses higher qualifications in the same line as prescribed in the minimum qualifications applicable to a particular post then he should be considered as eligible for that post it is therefore directed that the provision that if a candidate possesses higher qualifications in the same line as prescribed in the minimum qualifications applicable to a particular post then he should be considered as eligible for that post be inserted in the Service Rules and if not inserted in the Service Rules, then it should be clarified in the requisitions being sent to HSSC/HPSC. These instructions should be followed meticulously.
3 This may also be brought to the notice of all concerned.
Yours faithfully.”
16. Thus, the argument which is now sought to be raised by Mr. Gopera that the rules of the game were being specifically changed by the Commission as such would not be correct as the said letter was only a reiteration of the earlier principles which had been issued on 16.06.1979. The Commission was thus bound by the said instructions and it is in such circumstances the necessary clarification had been further issued on 21/27.09.2016 wherein, decision in principle was taken that candidates who had compulsory English were equally entitled for consideration against the posts in question against the ones who had English only as an elective subject. It is also to be noticed that the impugned communications as such also referred to the Resolution No.8 of 11.07.2011 of the MDU, which has already been discussed earlier wherein, English compulsory has been held equivalent to English elective. In pursuance of the same, letter dated 01.09.2015 (Annexure R-4/2) had also been issued which reads thus:-
“TO WHOM IT MAY CONCERN
In terms of decision taken by the Academic Council vide Reso. No. 8 of its meeting held on 11.07.2011, it is certified that English (Compulsory) is equivalent to English (Elective) for all purposes for those students who have passed Bachelor of Arts Part1, II & III from M.D.University, Rohtak prior to 2011- 12 session.
Further on the basis of the comments of Head, Department of English and Foreign Languages, M.D.University, Rohtak, both Literature and Language are taught in the subject of English (Compulsory) in B.A. With emphasis on English Literature.
Deputy Registrar (Academic)
Deputy Registrar (Academic)
Maharishi Dayanand Univrsity
ROHTAK”
17. Similarly, the affidavit of the Registrar, Kurukshetra University-respondent No.6 would also show that Resolution No.19 had been passed by the Academic Council wherein, the Equivalence Committee of the University had also held in the same terms. The resolution dated 16.11.2016 reads thus:-
“19. Considered the recommendations of the Equivalence Committee Meeting held on 21.01.2016 in considering the matter regarding equivalance of B.A. Course with English subject and B.A. Honour in English course of K.U. Kurukshetra to that of B.A. course with English Elective subject, on the pattern of M.D. University, Rohtak (as per Annexure Pages 19 (1- 7).
“Resolved that B.A. course with English subject of this University be considered as equivalent to B.A. Course with English Elective Subject.”.
Resolved Further than:
1. A note be given in the Detailed Marks Cards of B.A. General final year w.e.f. 2015-16, stating that English Subject is equivalent to English Elective Subject.
2. A Certificate (not approved by the Vice Chancellor) be issued by the Academic Branch, K.U. Kurukshetra to the needy students who have passed B.A. Course with English Subject prior to 2015-16 as per proforma.
RESOLVED THAT THE RECOMMENDATIONS OF THE EQUIVALENCE COMMITTEE BE APPROVED ECEPT POINT NO. 2 ABOVE. FURTHER RESOLVED THAT THE NOTE BE GIVEN ON THE BACKSIDE OF THE DMC IN POINT NO. 1 ABOVE.”
18. Resultantly, it would be clear that the subject experts as such have themselves opined regarding the equivalence and it is settled principle that it is not for the Court as such to opine to the contrary. Reliance can be placed upon the judgment of the Apex Court in Devender Bhaskar and others vs. State of Haryana and others, 2022 (1) SCT 51 wherein also, it has been held as under:-
“20. We have already noticed that one of the eligibility criteria for appointment to the post of Arts and Crafts teacher as per the advertisement dated 20.07.2006 is a “two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department.” It was made clear by the Industrial Training and Vocational Educational Department, Haryana, that diploma in Art and Craft Course by the Kurukshetra University is conducted through distance education and that this course cannot be equated with two-year diploma in Art and Craft Course awarded by the Haryana Industrial Training Department. Recognition of the said Course by the State of Haryana, as held by the High Court, is entirely different from its equivalence. When the experts in the Education Department have held the diploma in Art and Craft by the Kurukshetra University is not equivalent to the twoyear diploma in Art and Craft awarded by the Haryana Industrial Training Department, we are of the view that the High Court was not justified in equalizing them.
21. In Mohammad Shujat Ali & Ors. v. Union of India & Ors (1975) 3 SCC 76, [LQ/SC/1974/187] it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong.
22. In J. Ranga Swamy v. Government of Andhra Pradesh and Others, (1990) 1 SCC 288 [LQ/SC/1989/642] this Court held that it is not for the court to consider the relevance of qualification prescribed for various posts.
23. In State of Rajasthan & Ors. v. Lata Arun, (2002) 6 SCC 252 [LQ/SC/2002/694] this Court held that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It was held thus:
“13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.”
24. In Guru Nanak Dev University v. Sanjay Kumar Katwal & Anr., (2009) 1 SCC 610 [LQ/SC/2008/2133] this Court has reiterated that equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such.
25. In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & Ors. (2019) 2 SCC 404, [LQ/SC/2018/1557] it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine.”
19. In such circumstances, the argument as such raised by Mr. Gopera that the order of the learned Single Judge can be faulted is not liable to be accepted in view of the opinions of the universities. It is also to be noticed that in Deepak Bariya (supra), a similar issue came up regarding rejection on the ground that the Rule provided for Graduation in the concerned subject as an optional subject and the candidate in question had English as a compulsory subject. It was accordingly held that the petitioner had higher qualification as prescribed for the post and reliance was placed upon the judgment of the Apex Court in Chandrakala Trivedi vs. State of Rajasthan and others, 2012 (1) RLW 856 SC [LQ/SC/2012/46] and also Parvaiz Ahmad Parry vs. State of Jammu & Kashmir and others, 2013 (28) RCR Civil 200 [LQ/JKHC/2013/269] .
20. It is not disputed that the Division Bench of the Rajasthan High Court at Jodhpur had approved the said view in State of Rajasthan and another vs. Deepak Bariya and others (supra) on the ground that the Rule had to be applied meaningfully and practically and a person who had cleared it in B.A. as a compulsory paper would have adequate knowledge in the subject in which the requirement was an elective subject. Thus, for the additional reasons given by the Division Bench of the Rajasthan High Court with which we are also in consonance and for the reason given that once the subject experts as such have found that the benefit was to be granted, the argument raised as such by the appellants is not liable to be accepted.
21. It is also to be noticed that the candidates who had applied in pursuance of the said advertisement have given the written examination and had been called for scrutiny and the recruitment process was at an advanced stage. The action of the State to withdraw the recruitment process for the posts of TGT English vide the communication dated 22.02.2021 is not justified in the facts and circumstances, specially once it itself had not preferred any appeal against the order of the learned Single Judge. It is to be noticed that this Court is faced with a barrage of the service litigation right from the point of time an amendment is made in the service Rules till advertisement is issued for filling up posts and the selection process if finalized. If the State is to sit as a silent spectator and withdraw the advertisements as such without having opted to challenge the order in accordance with law, its action can be termed as highly arbitrary. It would lead to unfettered litigation resulting in scuttling the recruitment process and leaving many candidates high and dry as the fresh advertisement after a period of 5 or 7 years would entail many of them have become ineligible to apply.
22. It is settled principle that the act of Court is to prejudice no person as per the maxim “Actus Curiae Neminem Gravabit”. Merely because at one stage there was a stay of the recruitment process, would not be a ground as such to withdraw the recruitment notice to the prejudice of concerned. It is the duty of the State to defend the litigation and by taking appropriate steps rather than resort to scuttling the process. Reliance can also be placed upon South Eastern Coalfields Ltd. Vs. State of M.P. (2003) 8 SCC 648 [LQ/SC/2003/1025] and Mohammed Gazi Vs. State of M.P. 2000(4) SCC 342 apart from the celebrated judgment of the Apex Court in Karnataka Rare Earth and another Vs. Senior Geologist, Department of Mines & Geology and another (2004) 2 SCC 783 [LQ/SC/2004/113] . The relevant portion reads as under:-
“10. In South Eastern Coalfields Ltd. (supra), this Court dealt with the effect on the rights of the parties who have acted bona fide, protected by interim orders of the Court and incurred rights and obligations while the interim orders stood vacated or reversed at the end. The Court referred to the doctrine of actus curiae neminem gravabit and held that the doctrine was not confined in its application only to such acts of the Court which were erroneous; the doctrine is applicable to all such acts as to which it can be held that the Court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the Court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the Court would not have been passed. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the Court, or (b) to make restitution for what it has lost.”
23. It is also settled principle that candidates have no vested right of appointment and reliance can be placed upon the law laid down by the Apex Court in Shankarsan Dash vs. Union of India, 1991 (3) SCC 47 [LQ/SC/1991/253] wherein, it was held that they do not have any indefeasible right to be appointed. The caveat was that the State does not have a license to act in an arbitrary manner and there has to be bona fide reasons why vacancies are not being filled up. As noticed, posts of TGT English are subject matter of consideration. It is in the interest of the State as such to ensure that the vacancies are filled up at the earliest in view of the fact that the cause of action is to be seen at the time when the advertisement was issued and the requirement at that point of time.
24. Merely on account of pending litigation, the State cannot wriggle out of the invitation given to the candidates once it is at an advanced stage. The action as such on account of the fact that litigation had ensued and which was not even decided as such but defended by the State before the learned Single Judge cannot be a ground for withdrawal of the said advertisement. Reliance can be placed upon the judgment of three Judgment Bench of the Apex Court in P. Mahendran vs. State of Karnataka, 1990 (1) SCC 411 [LQ/SC/1989/615] wherein, the appeal was allowed and directions were issued to make appointments to the posts of Motor Vehicle Inspectors. The issue before the Apex Court was that merely because there was an amendment as such in the Rules and the process of selection could not be completed on account of interim orders, the amendment could not be held to be with retrospective effect and the right of the candidates on the date of making the appointment as well as on the date of scrutiny by the Commission once they had qualified for appointment had to be kept in mind and the same could not be defeated on that account. The relevant portion reads thus:-
“In view of the above the appellants' selection and appointment could not be held as illegal as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection. The amended Rule could not be applied to invalidate the selection made by the Commission. Strangely the Tribunal did not follow the latest authority of this Court as laid down in Calton's case, on the ground that the view taken in that case was contrary to the Constitution Bench decision of this Court in State of Andhra Pradesh v.T. Ramakrishna Rao, [1972] 2 SCC 830. We have carefully consid- ered the decision but we do not find anything therein contrary to the view taken in Calton's case.”
25. Similar view was taken in N.T. Devin Katti and others vs. Karnataka Public Service Commission, 1990 (3) SCC 157 [LQ/SC/1990/195] that if the process of recruitment had already commenced and the Government order had been issued subsequently on 09.07.1975 then on amendment of Rules during the pendency of the selection, unless the amended Rules are retrospective in nature, the same had to be completed under the old Rules and, thus, earlier view as such was followed.
26. Keeping in view the above, we are of the considered opinion that the order of the learned Single Judge does not suffer from any infirmity and thus, deserves to be upheld. It is also to be noticed that on 03.11.2021, this Court had noticed that a fresh advertisement had been issued in spite of the fact that there was an order of status quo passed earlier and resultantly, it was directed that the selection process shall not continue in pursuance of the fresh advertisement. The said order is accordingly confirmed and the State is directed to complete the recruitment process firstly of the advertisement dated 23.07.2015 and fill up the vacancies which have been duly advertised keeping in mind the opinions received by the university.
27. Accordingly, LPA No. 1861 of 2018, Nidhi Sharma and others vs. State of Haryana is dismissed whereas, CWP No. 8483 of 2021, Sandeep Kumar and others vs. State of Haryana and others is allowed quashing the withdrawal notice of the State dated 22.02.2021. All pending applications stand disposed of accordingly.
