Ruchir Agrawal v. Public Enterprises Selection Board & Ors.

9. The learned counsel appearing on behalf of the petitioner submitted that the decision taken by the respondent Body vide internal meeting dated 19th August, 2021 whereby the preference was given to the Chartered Accountants over Cost Accountants is arbitrary and in contravention of the settled principle of law and is in violation of the Fundamental Rights of the petitioner.

10. It is submitted that the petitioner should have been given preference over shortlisted candidates because the petitioner complies with all the prerequisite conditions as prescribed in the advertisement. It is further submitted that the said candidates shortlisted for the job are junior to the petitioner and are shortlisted only on the ground that they are Chartered Accountants.

11. It is submitted that the respondent Body failed to provide any justification to show as to why the Chartered Accountants are being preferred over Cost Accountants despite the fact that the both are considered at par in all Central and State statutes and are equally recognised by the Government of India. It is also argued that even though the advertisement/JD uses the word ‘preference’, it’s actual effect is of such nature that is closes all the doors for the Cost Accountants to hold the post of director (Finance) both internally, externally and sectorially despite fulfilling all the mandatory requirements.

12. It is submitted that the list of shortlisted candidates published on 10th March, 2023 goes against the settled law under Geeta Sharma v. Public Enterprises Selection Board & Anr, 2022 SCC OnLine Del 3600 wherein this Court had set aside the decision of preference given to the Chartered Accountants and it was held as follows:

13. It is submitted that the list of shortlisted candidates dated 10th March, 2023 ignores that the ‘question’ of preference arises only during the time when the selection of a candidate is to be made, and the said power rests with the Appointments Committee of the Cabinet (‘ACC’ hereinafter).

14. Hence, in view of the forgoing discussion, it is prayed by the petitioner that this Court may issue writ of mandamus or any other writ, order, or direction, directing the respondent Body to do away with the qualification/preference clause added in JD qua appointment of Director (Finance) in CPSEs, whereby the preference has been given to the Chartered Accountants over Cost Accountants. (on behalf of the respondent)

15. Per Contra, the learned counsel appearing on behalf of the respondent No. 1 & 3 vehemently opposed the submissions made by the learned counsel for petitioner and submitted that the Chapter 2 of the Department of Personnel (‘DoPT’ hereinafter) guidelines dated 29th August, 2017 allows the CPSEs to decide the job description which includes qualifications, keeping in mind the functional requirements of the post for that company.

16. It is submitted that the policies related to board level appointments are formulated by the concerned authorities keeping in mind the current needs and situations.

17. It is submitted that it is a settled law that the decisions of the expert committees of the Government are not interfered with, except on the ground that the committee is not properly constituted or that the process is not duly followed.

18. It is submitted that there is a rational nexus between the basis of classification and the object intended to be achieved. The Director (Finance) has the responsibility of overall in-charge of finance, accounts and fund management of the organization and is also responsible for evolving and formulating the policies related to finance and accounts as well as implementation thereof. The Chartered Accountants are professionals Whereas, the Cost Accountant is a professional who is only responsible for ensuring that money spent by their company is well planned. Hence, the objective behind preferring Chartered Accountants is to promote all aspects of finance, accounts and funds management of the CPSEs and enable them to formulate policies optimizing the well-being of their business, finances and accounts.

19. It is submitted that the petitioner has already admitting the fact of being aware about the internal meeting decision dated 19th August, 2021, and but still prefers to only challenge the preference clause which stems from the decision not challenged before this Court. It is further submitted that the said decision was duly approved by the expert committee and consequently notified to the respective CPSEs.

20. It is submitted that as per seniority, there are 7 eligible candidates including 2 Non-Chartered Accountant above the petitioner against the 6 slots allotted under internal category.

21. It is submitted that the petitioner has chosen not to challenge the policy adopted by the respondent Body and the prayer of getting done away with the qualification clause cannot hold any ground when the petitioner has not challenged the policy decision taken by the board from which said qualification clause was included in the JD.

22. It is further submitted that the petitioner has not mentioned any rule or provision to aver that the preference clause is to be applied by the ACC and only after the shortlisting of the candidates. Hence, in view of the forgoing discussion, it is submitted on behalf of the respondent that the petition is devoid of any merits and liable to be dismissed.

FINDINGS AND ANALYSIS

23. Heard learned counsel for the parties and perused the records. This Court has given its thoughtful consideration to the submissions made by the parties. At the outset, it becomes necessary to delineate the following issues on the basis of which the final outcome of the instant petition would depend. Issue I- Whether Cost Accountants can be treated equivalent to the Chartered Accountants for appointment for the post of Director (Finance) in the CPSEs. If not, whether the same can be tested on the touchstone of Article 14 & 16 of the Constitution of India? Issue IIa) Whether this Court can issue mandamus in the instant case and set aside the minutes of the meeting when the same is not prayed by the petitioner in the pleadings? And b) Whether this Court can set aside the decision taken by the expert committee formed by the Central Government for the appointment of high level positions when there is no challenge to the constitution of the expert committee? Issue I

24. Before delving into this issue, it would be apposite to look at the extracts of the advertisement/JD in question which lays down the clause preferring Chartered Accountants over Cost Accountants. The said advertisement/JD is reproduced hereinbelow: “3. Qualification

(i) The applicant should be a Chartered Accountant or

Cost Accountant or a full time MBA/PGDM course with specialization in Finance with good academic record from a recognized University/Institution. Preference would be given to Chartered Accountant.

(ii) Officers of Organized Group 'A' Accounts Services

[i.e. Indian Audit and Accounts Service, Indian Defence Accounts Service, Indian Railway Accounts Service, Indian Civil Accounts Service, Indian P&T Accounts & Finance Service and Indian Cost Accounts Service] working in the appropriate-level are exempted from these educational qualifications.

(iii) Further, applicants from the Central Govt.lArmed

Forces of the Union/All India Services, will also be exempted from the educational qualifications as per (i) above provided the applicants have 'the relevant experience' as mentioned in Para 4(iii) below. In respect of applicants from Organized Group 'A' Accounts Services/Central Government/Armed Forces of the Union/All India Services, Chartered Accountant/Cost Accountant/MBA/PGDM will be a desirable educational qualification.

4. EXPERIENCE:

(i) The applicant should have at least five years of cumulative experience at a senior level during the last ten years in the area of Corporate Financial Management Corporate Accounts in an organization of repute.

(ii) Applicants from Organized Group 'A' Accounts

Services should have at least five years cumulative experience at a senior level during the last ten years in the area of Corporate Financial Management Corporate Accounts. (iii) 'The relevant experience' in respect of applicants from Central Government/Armed Forces of the UnionlAIl India Services would include at least seven years of cumulative experience at a senior level during the last ten years in the area of Corporate Financial Management Corporate Accounts.”

25. On perusal of the relevant portion of the said Advertisement/JD, it is made out that the preference has been given to the Chartered Accountants over Cost Accountants. Therefore, it becomes necessary to establish the difference, if any, between the both. For the same, it is pertinent to analyse the profile and work of both Cost Accountants and the Chartered Accountants.

26. The Chartered Accountants in India are governed by the Chartered Accountants Act, 1949 and are bound by the rules and regulations laid down by the body created by an act of the Parliament. The said profession is defined under the Act as follows: “Section 2(1)(b) of Chartered Accountants Act, 1949- “chartered accountant” means a person who is a member of the Institute”

27. Similarly, the Cost Accountants are registered with The Institute of Cost Accountants of India which is also a Statutory Body created by the Cost Accountants Act, 1959 and is defined under the Act as follows: “Section 2(1)(b) of Cost Accountants Act, 1959 cost accountant means a person who is a member of the Institute”

28. At the outset, it is established that both the professions are governed by different rules and regulations laid down by the two separate institutions which are created by two separate acts of the Parliament. It is also clear that both the statutes were established for different purposes and the professionals registered under the respective statues have separate and distinguished work profiles.

29. The statement and objects of both the statutes also specify different roles to the respected professionals.

30. On reference to the other statues, it is made out that some legislation treats both the professionals differently. In order to establish the same, perusal of Section 288 of the Income Tax Act, 1961 becomes important. The said provision talks about the representation by the authorized persons which exclusively prescribes for ‘Chartered Accountants’ as explanation of the term ‘accountants’ mentioned in the said provision of the Act. The relevant portion of the said provision reads as follows: “Section 288, Appearance by authorised representative…………………..[Explanation.—In this section, “accountant” means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) who holds a valid certificate of practice under sub-section (1) of section 6 of that Act, but does not include [except for the purposes of representing the assessee under subsection (1)]”

31. On bare perusal of the aforesaid paragraph, it becomes clear that there exists distinction between the role and responsibility of Chartered Accountants and Cost Accountants as the said provision only provides for Chartered Accountants as explanation of the term ‘accountants’ which is not replaceable with the Cost Accountants. Therefore, it is established that the Chartered Accountants are treated differently than Cost Accountants in some statues and there can be no embargo upon the authorities to treat them differently.

32. Now, the pertinent question before this Court is whether treating two qualifications differently would amount to discrimination, thereby violating the fundamental right of the petitioner as provided under Article 14 of the Constitution of India. For the same, it is necessary to examine the differentiation carved on the touchstone of Article 14 and 16 of the Indian Constitution. The said provisions are reproduced hereinbelow:

33. On perusal of the aforesaid provisions, it is clear that the denial of equality by the state is prohibited and the breach of the same amounts to violation of the fundamental rights of the citizens. At the same time, the Article 16 also permits reasonable classification based on intelligible differentia. In order to analyse whether the said condition has been met in the instant case, it is imperative to look into the judicial dicta dealing with the similar issue and whether the settled position of law can be made applicable in the instant case.

34. The Hon’ble Supreme Court had elaborated the scope of reasonable classification created for superior qualification in the case of State of Mysore v. P. Narasinga Rao, (1968) 1 SCR 407 in following manner:

35. In the case of T.R. Kothandaraman v. T.N. Water Supply & Drainage Board, (1994) 6 SCC 282, the Hon’ble Supreme Court examined the classification created for separate qualification and held that the nature of the job does permit the Government to prefer better qualified persons if the job entails the work to be handled specifically by a person having specific qualification. The relevant para of the judgment is reproduced below:

36. In the case of Chhattisgarh Rural Agriculture Extension Officers Assn. v. State of M.P., (2004) 4 SCC 646, the Hon’ble Supreme Court allowed the state to differentiate for the appointment on the basis of different qualifications and held that the state cannot be said to have acted illegally in granting a higher pay scale for the higher qualification. The relevant part is reproduced herein: “13. Pay Commissions are constituted for evaluating the duties and functions of the employees and the nature thereof vis-à-vis the educational qualifications required therefor. Although the Pay Commission is considered to be an expert body, the State in its wisdom and in furtherance of a valid policy decision may or may not accept its recommendations. The State in exercise of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate rules. The State in terms of the said provision is also entitled to give a retrospective effect thereto. A policy decision had been adopted by the State that the post of Extension Officers shall be filled up only by graduates. Such a policy decision ex facie cannot be termed to be arbitrary or irrational attracting the wrath of Article 14 of the Constitution of India. A dying scale was provided by the State for the non-graduates. Fresh recruitments were to be made only from amongst the persons who held the requisite educational qualification. With a view to avoid any discrimination between the new recruits and the serving employees who possessed the same qualification, the State cannot be said to have acted illegally in granting a higher scale of pay also for the existing degree-holders.

14. Article 14, it is trite, does not forbid a reasonable classification.

15. Article 14 forbids class legislation but permits reasonable classification subject to the conditions that it is based on an intelligible differentia and that the differentia must have a rational relation to the object sought to be achieved. (See Saurabh Chaudri v. Union of India [(2003) 11 SCC 146: (2003) 9 Scale 272].)”

37. In Govt. of W.B. v. Tarun K. Roy, (2004) 1 SCC 347, the Hon’ble Supreme Court held that a violation of fundamental right would not arise when the persons are not similarly placed. The relevant paragraph is as follows:

38. On perusal of the relevant paragraphs of the aforementioned judgments, it is clear that the state can create classifications based on the qualifications. Therefore, it is well within the power of the state to create separate classification based on the reasonable differentia.

39. In the instant case, it is already established that the Cost Accountants and the Chartered Accountants are not similarly placed as the same are defined and governed under two separate statutes of the Parliament. On perusal of the Section 288 of the Income Tax Act, 1961, it is also made out that some legislations do specifically provide for ‘Chartered Accountants’ instead of the Cost Accountants as an explanation to the term ‘Accountant’. Hence, the difference in both the profiles has already been established.

40. The job of Director (Finance) pertains to financial management of the business, where both accounts and finances, inventory, income tax, audit assurance etc need to be supervised by them. For the same, Chartered Accountants are best suited persons as the work of Cost Accountants only entails supervision of the expenses by the company. The role of the Cost Accountants is also limited to oversee expense reports and analyze data regarding the purchases made by the company. If we compare the nature of the job, it is clear that the Chartered Accountants are better placed to perform the said job as the work is not only limited to the supervision of expenses but also requires management of audits, budgets and providing financial advice. Therefore, the Chartered Accountants can be termed as better qualified for the said job in the respondent Organisation.

41. Thus, it is crystal clear from the above discussion that the Cost Accountants and the Chartered Accountants cannot be similarly placed for appointment to the post of Director (finance) in the respondent Organization and treating them differently does not amount to discrimination and violation of fundamental rights as enshrined in the Constitution of India.

42. Therefore, on establishment that no prejudice was caused to the petitioner by preferring Chartered Accountants over the Cost Accountants, and the classification as created for the post of Director being well within the bounds of the respondent Body, this Court is inclined to answer the issue in favour of the respondents and against the petitioners.

43. Accordingly, issue no. 1 is decided. Issue II

44. In the instant petition, the petitioner seeks issuance of mandamus for quashing of the preference clause described in the Advertisement/JD. Therefore, in order to decide the sub-issue i), it is pertinent to discuss the nature and scope of mandamus in order to understand whether this Court can issue the writ for setting aside the decision of the expert committee which stems out from the minutes of the meeting dated 19th August, 2021 not under challenge before this Court.

45. The writ of mandamus has been defined in Halsbury Statutes of England, Vol 11, (3rd Edition) p. 84 in the following manner: “The order of mandamus is an order of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice, and accordingly, it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right ”

46. On perusal of the aforesaid definition, it is clear that the writ of mandamus is a command issued from the courts to direct the Subordinate Courts, Organisations or the State to perform a duty which they are bound to do by virtue of the nature of the public office they hold.

47. The scope of mandamus has also been explained by the Hon’ble Supreme Court in a catena of judgments. In the case of CAG v. K.S. Jagannathan, (1986) 2 SCC 679, the Hon’ble Supreme Court discussed scope of mandamus and held that the Courts can issue mandamus where a government or a public authority has failed to exercise the discretion conferred upon it. The Hon’ble Court held as follows:

48. On perusal of the said judgments, it is clear that the Courts have wide scope under Article 226 for issuance of mandamus and are empowered to direct the Government to get done away with a decision which is illegal in nature thereby causing injustice to a party.

49. In the instant case, even though it is contended that this Court while exercising its power under Article 226 of the Indian Constitution can set aside the preference clause from the said Advertisement/JD, it is imperative to satisfy the question of whether the writ of mandamus can be issued to direct the respondents to do away with the preference clause inserted in the Advertisement/JD when the decision of the expert committee stemming from the meeting dated 19th August, 2021, is not under the challenge before this Court.

50. Therefore, it is imperative to refer to the settled position of law with regards to the said issue. In Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491, the Hon’ble Supreme Court had discussed the purpose of pleadings at length and held that allowing a particular relief without there being a prayer for the same would lead to miscarriage of justice. The relevant paragraph is reproduced herein:

51. In Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi, (2010) 1 SCC 234, the Hon’ble Supreme Court discussed the scope of Writ Court and held that even though the courts have wide discretion in deciding the writs, they cannot grant a relief not prayed by the petitioner. The relevant paragraph is as follows:

52. On perusal of the aforesaid judgments, it is evident that even though the scope of mandamus is very wide, courts cannot ignore the principles governing grant of relief. It is a well settled principle of law that the courts should not delve into the aspects which are related to reliefs not prayed by the petitioner and it is fundamental that a relief can only be granted in a case when it is prayed by the petitioner. Therefore, any relief, not prayed by the petitioners, cannot be granted by this Court under Article 226 of the Constitution.

53. In the instant case, the petitioner has prayed for issuance of writ of mandamus to do away with the preference clause as added in the Advertisement/JD, but has not challenged the minutes of the meeting through which the said decision of preference stems out. The petitioner has also not preferred the option of modification of the prayer and has only sought to do away with the said preference clause. Hence, this Court cannot interfere in the decision taken by the expert when the same has not been under challenge in the instant petition.

54. Therefore, in light of the settled principles regarding both issuance of mandamus and principles governing the grant of reliefs, this Court is not inclined to delve into an issue which is not prayed for in the petition. Therefore, this sub-issue is also answered in favour of the respondents.

55. Now, coming to sub-issue ii), where the question of whether this Court can set aside a decision taken by the high level expert committee needs to be decided.

56. Based on the foregoing discussion, it is evident that the petitioners have challenged the preference clause where preference has been given to the Chartered Accountants over Cost Accountants. It is also clear that the said decision to prefer one set of professionals over others was taken and approved by the respondent Body. The respondent Body is a high-powered body constituted by the Government of India for appointment of top management posts in various CPSEs, including the respondent Organization. Therefore, it is imperative to analyse whether the respondent Body committed material illegality by taking the said decision.

57. On perusal of the material on record, it is clear that the petitioner has neither raised any question regarding the constitution of the expert committee, nor prayed for the reconstitution of the expert committee which decided the said preference clause. Therefore, the only question before this Court is whether the decisions taken by the expert committees can be set aside without there being any illegality in the constitution of the expert committee.

58. In Secy. (Health) Deptt. Of Health and F.W. v. Anita Puri (Dr.), (1996) 6 SCC 282, the Hon’ble Supreme Court held that the courts should leave it to the decision of the experts whenever there is an expert committee constituted to fill a high level position. The relevant part of the judgment is reproduced herein:

59. In UPSC v. M. SathiyaPriya, (2018) 15 SCC 796, the Hon’ble Supreme Court set aside the exercise undertaken by the Tribunal and the High Court to reassess the recommendations of a Selection Committee constituted by the UPSC for appointment by promotion to the Indian Police Service and held as follows:

60. On perusal of the aforesaid judgments, it is made out that the expert committees are constituted of individuals who are well versed with the nature of tasks to be performed by the persons appointed to the high level position and the said decisions need not be interfered with by the courts in normal circumstances.

61. In the instant case, it is clear that the petitioner has not questioned the constitution of the respondent Body rather, has only challenged the preference clause inserted in the qualification section of the Advertisement/JD notified by the respondent Body for the vacant post of Director (Finance) in the respondent Organization.

62. Hence, it is a settled principle of law that the decisions taken by such experts need not be questioned until and unless there is clear bias on part of the experts and malafide is established by adducing sufficient evidence or the constitution of the committee is under challenge which is not the case in the instant petition.

63. Therefore, in light of the foregoing discussion and the settled principle of law, this Court does not find any compelling reasons to get into the decision made by the expert committee as it is assumed that the experts looked into all the aspects relating to the selection process and then decided to prefer the Chartered Accountants over Cost Accountants and this subissue is also answered in favour of the respondents.

64. Since both the sub-issues are decided in favour of the respondents, this issue in entirety is answered in favour of the respondents.

65. Having dealt with both the issues in the earlier paragraphs, it is crystal clear that the petitioner cannot be granted the relief. However, he has relied upon the decision of the Coordinate bench of this Court in Geeta Sharma v. Public Enterprises Selection Board & Anr (Supra) and vehemently argued that the said case deals with the similar issues and can be relied upon by this Court to allow the prayer sought by the petitioner. Therefore, it is pertinent to analyse whether the decision given by the Coordinate bench in the said case is binding on the cases dealing with the similar issues and if the said case be held as the settled position of law with regards to the preference given to the Chartered Accountants. In the aforesaid case, this Court interpreted a similar advertisement preferring Chartered Accountants over Cost Accountants for the post of Director (Finance) in a CPSE and held that the preference given to the Chartered Accountants cannot be read alone while ignoring the other factors. The relevant paragraphs of the said judgment are reproduced herein:

20. A perusal of paragraph „a‟ of the aforesaid guideline clearly shows that preference has to be given to the applicants drawing a higher pay scale. Similarly, paragraph „b (i)‟ of these guidelines clearly prescribes that, if payscale of the applicants under consideration is same, then Board level applicants will be given preference over the applicants who are below the Board level. Thus, these guidelines also envisage granting of preference to applicants in certain situations. Firstly, preference is to be given to candidates having higher pay scale and, secondly, preference is to be given to board level applicants vis-à-vis applicants who are below the board level.

21. In the present case, it is undisputed that the petitioner is not only drawing the payscale of Rs. 1,60,000/- to Rs. 2,90,000/- which is higher than the payscale of both the other candidates in the external category, who are drawing the pay scale of Rs. 1,20,000/- to Rs. 2,80,000/-. It is also admitted that, while the petitioner is holding a Board level post of Director in a Schedule-B CPSE, the two shortlisted candidates in the external category are working as General Managers, one in the Noida Metro Rail Corporation Limited, and the other in Electronics Corporation of India Ltd. Thus, if the preference as envisaged in the guidelines, which the respondents do not deny are equally applicable for shortlisting of candidates for the post of Member (Finance) in respondent no. 2, are applied to the present case, it is evident that the petitioner was entitled to get preference not only by the virtue of her higher payscale, but also by virtue of her holding a Board level position since August

2018.

22. In the light of this position, while candidates at serial nos. 6 & 7 of the impugned list of shortlisted candidates may be entitled to get preference on account of their qualifications, the petitioner was clearly entitled to get preference on two counts, one on account of her higher payscale, and the other on account of her Board level position, as the other two candidates are admittedly holding the post of a General Manager in two other CPSEs. When these aspects are cumulatively considered, the only plausible interpretation which can be given to the term „preference would be given to Chartered Accountant‟ must be read to imply “an added advantage”. The „preference would be given to a Chartered Accountant‟ could not be read in such a manner to ignore the higher payscale and the Board level position of the petitioner, which position the other candidates do not hold. I, therefore, find merit in Mr. Mehta's submission that the question of giving preference to candidates at serial nos. 6 & 7, who are Chartered Accountants, would arise only if they were otherwise equally placed as the petitioner in all other aspects. Once, the petitioner in terms of PESB guideline, was entitled to get preference not only on account of her higher payscale, but also on account of her Board position, these two candidates could not be allowed to steal a march over her and that too, by excluding her even from the interview for the selection process.

23. In my considered view, the respondent nos. 1 and 3 have clearly misinterpreted the clause envisaging preference to be given to Chartered Accountants, as laid down in the advertisement, by ignoring all other relevant and material factors. The petitioner is a highly qualified professional who has been holding a Board level position since August 2018 in a scheduled-B CPSE, and she also holds a doctorate degree. It will indeed be a travesty of justice if she is altogether excluded even from consideration for selection for the post of Member (Finance) in respondent no. 2, and that too by giving preference over her to two „below Board level officers‟ in the impugned list under the external category.”

66. On perusal of the aforesaid paragraphs, it is clear that the petitioner in the aforesaid case was Director (finance) in another CPSE and was ignored despite the fact that the other selected candidates were below board level employees. While interpreting the preference clause in that case, the coordinate bench of this Court had relied upon the internal meeting decision dated 31st January, 2018 whereby it was decided by the committee to prefer board level employees while filling up vacancies to be taken by the external and sectoral candidates.

67. At this stage, it is established that the aforesaid case relied upon by the petitioner revolves around different circumstances all together and there exist stark differences in both the cases. Firstly, the above reproduced judgment is related to vacancy for external candidates and nowhere discusses the aspect of vacancies arising for the internal candidates in the organizations. Secondly, the petitioner in the referred case was a board level employee drawing a salary similar to the grade pay of the post for which she had applied. However, in the instant case, the petitioner is a below board level employee.

68. In the instant petition, it is clear that the issue is limited to the vacant position for insiders. The petitioner applied for the said position in the internal vacancy and not the external one. Furthermore, it is placed on record that there are 7 eligible candidates above him against 6 slots allotted under internal category and there are 2 non-chartered accountant candidates senior to the petitioner. Thus, the petitioner cannot rely upon the judgment given in context of external vacancy arising in the CPSEs.

69. At last, it is pertinent to mention that even though the petitioner’s plight is regarding the qualification clause of the said advertisement/JD, he still chose to apply for the vacant position but challenged the preference clause only after not getting shortlisted in the interviews.

70. This Court vide interim order dated 25th May, 2023, allowed the petitioner to appear for the interview, but the petitioner was not selected for the further process. Therefore, it can be said that earlier, the petitioner had conveniently ignored the preference clause but decided to challenge the same after non-selection for the said post. The judicial dicta related to the similar issue is amply clear. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285, the Hon’ble Supreme Court has dealt with the issue in following manner:

71. In Madan Lal v. State of J&K, (1995) 3 SCC 486, the Hon’ble Supreme Court discussed the issue of selection process challenged by the parties once they fail in getting selected for the vacant posts and held as follows:

72. On perusal of the aforesaid cases, it is amply clear that the parties cannot impugn the rules of the game where they had already chosen to take the fair chance by applying to the said vacant position. Therefore, it is crystal clear that the petitioner took a fair chance by applying for the position and has approached this Court when he failed to get appointed.

73. Therefore, in light of the application of the settled principle of law as enunciated in the above discussed cases, it is made out that the petitioner did not come to this Court with clean hands, rather only preferred the instant petition when his application was rejected by the respondents.

74. Furthermore, this Court vide interim order dated 25th May, 2023 had allowed the petitioner to appear for the interview, but the petitioner was still not selected for the said position. Therefore, the petitioner cannot be granted relief and appointed to the post as the principle of estoppel is attracted which precludes the petitioner from questioning the selection process.

CONCLUSION

75. The foregoing paragraphs clearly establishes the case in favour of the respondents. Firstly, the respondent Body has not violated the fundamental right of the petitioner by creating separate classification for better qualification. Secondly, even though the scope of issuance of mandamus under Article 226 of the Constitution of India is wide, the same cannot be issued to grant a relief not prayed by the petitioners. Thirdly, it is a well settled principle that the respondent Body being an expert committee need not be questioned on the aspects of decision taken, rather can only be reconstituted or looked into whenever there is material irregularity with the decision or constitution of the said expert committee. At last, the judgment relied upon by the petitioner cannot be relied upon for deciding the instant case as the facts and circumstances of both the cases are materially different and the said referred judgment does not hold binding value of any nature in the present case.

76. The CPSEs are entrusted to work efficiently and generate profits for the government. For the same, the respondent Body needs to appoint better qualified candidates to run and oversee the operations of the said entities. Therefore, in view of the above said discussion on facts as well as law, this Court does not find any cogent reasons for granting relief to the petitioner.

77. Accordingly, the instant petition is devoid of merits and is dismissed.

78. Pending applications, if any, also stands dismissed.

79. The judgment be uploaded on the website forthwith.

JUDGE AUGUST 24, 2023/PA/AV