Punjab-Haryana High Court
Kartik Rana vs State Of Haryana And Others on 18 March, 2025
Neutral Citation No:=2025:PHHC:036927
CWP-31866-2024 and other connected matters
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
115
CWP-31866-2024
Date of Decision: 18.03.2025
Kartik Rana ......Petitioner(s)
Versus
State of Haryana and others .....Respondent(s)
CWP-34526-2024
Vijaya Rani Singh and another ......Petitioner(s)
Versus
State of Haryana and others .....Respondent(s)
AND
CWP-3163-2025 (O & M)
Shalvi ......Petitioner(s)
Versus
State of Haryana and others .....Respondent(s)
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. Sumit Sangwan and Mr. Mohit, Advocates,
for the petitioners.
Ms. Rajni Gupta, Addl. A.G., Haryana.
Mr. G.S. Sandhu, Advocate,
for respondent No.4 (in CWP-34526-2024).
Mr. Balvinder Sangwan, Advocate,
for HPSC (in CWP-31866-2024 and CWP-3163-2025).
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Neutral Citation No:=2025:PHHC:036927
CWP-31866-2024 and other connected matters
JAGMOHAN BANSAL, J. (Oral)
1. By this common order, three civil writ petitions i.e. CWP Nos.
31866 and 34526 of 2024 and CWP-3163-2025 are hereby adjudicated as issues
involved and prayer sought in all the petitions are common. For the sake of
convenience and with the consent of parties, the facts are borrowed from CWP-
31866-2024.
2. The petitioner through instant petition under Articles 226 and 227
of the Constitution of India is seeking setting aside of result dated 21.11.2024
(Annexure P-6) whereby respondent No.5-Haryana Public Service Commission
(in short 'the Commission') has called candidates for interview/viva voce for the
post of Senior Scientific Officer (DNA) (for short 'SSO') in FSL, Madhuban,
Karnal, Haryana.
3. Respondent No.5-Commission issued advertisement No.7/2024
dated 06.03.2024 whereby applications were invited for different posts in FSL,
Madhuban, Karnal. The opening date for filing application was 11.03.2024 and
closing date was 26.03.2024. The petitioner submitted his application form on
26.03.2024 under general category. There are three posts of SSO and one is
reserved for Scheduled Caste category. The petitioner was issued admit card.
He appeared for written test conducted on 25.06.2024. The respondent declared
result on 13.07.2024. The petitioner participated in the online process of
documents verification/scrutiny and at that point of time, 4 candidates were
found eligible including the petitioner, however, at a later stage, 7 candidates
were declared eligible for interview.
4. In the advertisement, the respondent has prescribed essential
qualifications. The relevant extracts of advertisement are reproduced as below:-
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"5. NAME OF POST AND CATEGORY WISE BIFURCATION
OF THE POSTS:
Haryana Public Service Commission invites online application forms
for recruitment of 03 posts of Senior Scientific Officer (DNA) in FSL
Madhuban, Karnal, Haryana. Category-wise bifurcation of the posts
is as under:-
Categories No. of Posts
Note 1.The number of posts given against each category is liable to
variation.
6. ESSENTIAL QUALIFICATIONS:
(i) M.Sc. (1st Division) in Zoology/ Physical Anthropology, Genetics
Bio-Chemistry/Bio Technology/ Micro-Biology/Molecular Biology/
Forensic Science or its equivalent qualification in any of the above
subjects, with Zoology/Botany as one of the subjects at B.Sc. Level.
(ii) Three years analytical/research experience in DNA Finger
Printing;
(iii) Hindi/Sanskrit upto Matric standard or Higher Education.
Desirable:- Experience of working in Forensic Science Laboratory."
5. The petitioner is assailing qualification/experience required in the
advertisement on the ground that prescription in the advertisement is contrary to
Rules governing the post. The post in question is governed by Haryana Forensic
Science (Group-B) Service Rules, 1980 (in short '1980 Rules'). The said Rules
have been amended by Amendment Rules, 2012. There is Appendix 'B' of 1980
Rules. In the said Appendix, essential qualification for the post of SSO has been
prescribed. In the said Appendix, essential qualification for the post of SSO
(NDPS) and SSO (Scene of Crime) has been prescribed. The relevant extracts
of Appendix 'B' of 1980 Rules are reproduced as below:-
8 Senior Scientific (i) M.Sc. (1st Division) in Chemistry/Forensic
Officer (NDPS) Science with specialization in Forensic
Chemistry or equivalent qualification in any
of the above subjects.
(ii) Three years research/analytical experience in
relevant subject.
(iii) Hindi/Sanskrit upto Matric standard or Higher
education.
9 Senior Scientific (i) M.Sc. (1st Division) in Zoology/ Physical
Officer (DNA) Anthropology/ Genetics/Bio-Chemistry/ Bio-
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6. Mr. Sumit Sangwan and Mr. Mohit, learned counsel for the
petitioners submit that from the perusal of 1980 Rules, it is quite evident that for
the post of SSO (DNA), there is requirement of 3 years' experience in Research
and Analytical. The expression used is 'research and analytical'. The
respondent in the advertisement has used expression 'analytical/research' which
means experience of either analytical or research is sufficient whereas as per
Rules, a candidate must have experience of research as well as analytical.
7. On 27.02.2025, the following order was passed:-
"Reply on behalf of respondent No.4 in CWP-34526-
2024 has been filed in Court today, which is taken on
record. Registry is directed to tag the same at appropriate
place.
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CWP-31866-2024 and other connected matters
The short controversy involved in the instant petitions
is whether the candidates who had applied for the post of
Senior Scientific Officer (DNA) were required to possess
three years' experience in DNA (Finger Printing) qua
research as well as analytical or experience of research or
analytical was sufficient. There may be a candidate who is
having three years' experience of research as well as
analytical whereas another candidate may be having
experience of either research or analytical. As per reply of
Haryana Public Service Commission, they have jotted down
same terms and conditions as incorporated in the
requisition sent by concerned department.
Reply of the State is not on record.
Mr. Raman Sharma, Addl. A.G., Haryana is hereby
directed to explain by way of affidavit of competent
authority to the effect whether expression
'research/analytical experience' and expression 'research
and analytical experience' carry same meaning and effect
or not.
Adjourned to 18.03.2025.
In the meantime, the respondents are directed not to
finalize the result.
To be shown in urgent.
Photocopy of the order be placed on the files of
connected cases."
8. Pursuant to aforesaid order, the respondent has filed affidavit dated
17.03.2025 of Director, FSL, Madhuban. The same is taken on record and
Registry is directed to tag the same at appropriate place. The relevant extracts
of said affidavit are reproduced as below:-
"2. That the present affidavit is being filed in compliance
with the directions issued by this Hon'ble Court vide order
dated 27.02.2025 in CWP No. 34526 of 2024, whereby the
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answering respondent was directed to explain whether the
expressions "research/analytical experience" and
"research and analytical experience" carry the same
meaning and effect or not.
3. That it is respectfully submitted that the two
expressions carry different and distinct meanings, both
grammatically and contextually, as outlined below:
4. The expression "research/analytical experience", by
usage of the symbol "/", is ordinarily and commonly
interpreted to mean "research or analytical experience",
thereby signifying that the candidate may possess either
research experience, or analytical experience, or both. In
this case, possession of any one of the two types of
experience is sufficient to fulfill the eligibility requirement.
5. On the other hand, the expression "research and
analytical experience" by usage of the conjunction "and",
denotes that a candidate must necessarily possess both
research experience as well as analytical experience, taken
together. Thus, the requirement becomes cumulative and
both conditions must be fulfilled simultaneously to satisfy
the eligibility criterion.
6. That, therefore, it is most respectfully submitted that
the two expressions are not synonymous and do not carry
the same meaning or effect. The expression using the slash
(/) creates a broader and more inclusive eligibility scope,
whereas the use of word "and" imposes a stricter and more
limited requirement.
9. Ms. Rajni Gupta, Addl. A.G., Haryana, Mr. Balvinder Sangwan and
Mr. G.S. Sandhu, Advocates submit that petitioners participated in the selection
process and after having been declared unsuccessful or sensing that they are not
likely to be selected have approached this Court assailing terms and conditions
of the advertisement. As per judgment of Supreme Court in Tajvir Singh Sodhi
and others vs. State of Jammu and Kashmir and others, 2023 SCC OnLine SC
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344, the petitioners cannot assail terms and conditions of the advertisement after
participating in the selection process. Mr. Balvinder Sangwan further submits
that terms and conditions of the advertisement were prescribed as per requisition
received from the Government.
10. I have heard the arguments and perused the record.
11. The respondents vehemently plead that the petitioners after
participating in the selection process cannot be permitted to challenge one or
another clause of the advertisement. By participating in the process, they
acquiesced to terms and conditions of the advertisement. As per principle of
estoppel, they are prevented from assailing one or another clause of the
advertisement.
12. A two Judge Bench of Apex Court in Tajvir Singh Sodhi (supra)
has held that candidates, having taken part in the selection process without any
demur or protest, cannot challenge the same after having been declared
unsuccessful. The candidates cannot approbate and reprobate at the same time.
A candidate cannot allege that selection process was unfair or there was some
lacuna in the process just because selection process was not palatable to a
candidate.
12.1 In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309, after
referring to a catena of judgments on the principle of waiver and estoppel,
Supreme Court did not entertain the challenge to the advertisement for the
reason that the same would not be maintainable after participating in the
selection process. The relevant extracts of the judgment read as:
"24. In view of the propositions laid down in the above
noted judgments, it must be held that by having taken part
in the process of selection with full knowledge that the
recruitment was being made under the General Rules, the
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respondents had waived their right to question the
advertisement or the methodology adopted by the Board for
making selection and the learned Single Judge and the
Division Bench of the High Court committed grave error by
entertaining the grievance made by the respondents."
12.2 The petitioners indubitably participated in the selection process
which was initiated in terms of advertisement. As laid down by Supreme Court
in above noted judgments, no one after participating in the selection process can
be heard to challenge advertisement, however, no candidate can be stopped from
challenging validity of the rules or instructions made there-under on the ground
that rules/instructions are arbitrary and violative of Article 14 of the Constitution
of India.
12.3 The Supreme Court in Somesh Thapliyal and Another v. Vice
Chancellor, H.N.B. Garhwal University and Another (2021) 10 SCC 116 has
adverted with challenge to terms and conditions of advertisement or
appointment letter by a candidate after his selection. The court has opined that
employer is always in a dominating position, thus, in case of public
employment, terms and conditions are subject to judicial scrutiny. The relevant
extracts of the said judgment read as:
"42. The submissions of the learned counsel for the
respondents that the appellants have accepted the terms and
conditions contained in the letter of appointment deserves
rejection for the reason that it is not open for a person
appointed in public employment to ordinarily choose the
terms and conditions of which he is required to serve. It goes
without saying that employer is always in a dominating
position and it is open to the employer to dictate the terms of
employment. The employee who is at the receiving end can
hardly complain of arbitrariness in the terms and conditions
of employment. This Court can take judicial notice of the
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fact that if an employee takes initiation in questioning the
terms and conditions of employment, that would cost his/her
job itself.
43. The bargaining power is vested with the employer itself
and the employee is left with no option but to accept the
conditions dictated by the authority. If that being the reason,
it is open for the employee to challenge the conditions if it is
not being in conformity with the statutory requirement under
the law and he is not estopped from questioning at a stage
where he finds himself aggrieved."
12.4 A Two Judge Bench of Supreme Court in Munindra Kumar and
others v. Rajiv Govil and others, (1991) 3 SCC 368 has held that candidates
who have remained unsuccessful in the selection process cannot be estopped
from challenging the Rules which are arbitrary and violative of Article 14 of
Constitution of India. The relevant extracts of the judgment read as:
"10. ...................... It may be noted that Rajeev Govil,
Vivek Aggarwal and Gyanendra Srivastava who remained
unsuccessful had filed the writ petitions after taking chance
and fully knowing the percentage of marks kept for
interview and group discussion. It is no doubt correct that
they cannot be estopped from challenging the rule which is
arbitrary and violative of Article 14 of the Constitution, but
in modulating the relief, their conduct and the equities of
those who have been selected are the relevant
considerations."
12.5 A two-Judge Bench of Supreme Court in Abhimeet Sinha and
others vs. High Court of Judicature at Patna and others, (2024) 7 SCC 262
has adverted to question of maintainability of writ petition after participating in
the selection process. The Court has clearly held that principle of estoppel
cannot override the law. To non-suit the writ petitioner at the threshold would
hardly be reasonable particularly when the alleged deficiency in the process
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could be gauged only by participating in the selection process. The relevant
extracts of the judgment read as under:-
"IV. MAINTAINABILITY
18. At the outset, it is apposite to address the issue of the
maintainability of the writ petitions. It is argued by Mr.
Gautam Narayan and Mr. Purvish Jitendra Malkan learned
counsel that after having participated in the recruitment
process, the writ petitioners having not succeeded, cannot
turn around and challenge the recruitment process or the
vires of the Recruitment Rules. It is submitted that all
candidates knew about the prescription of minimum marks
for viva voce, well before the selection process commenced
and the principle of estoppel will operate against the
unsuccessful challengers. On the other hand, the learned
counsel representing the writ petitioners argued that the
principle of estoppel would have no application when there
are glaring illegalities in the selection process. Further,
estoppel is not applicable when the arbitrariness affects
fundamental rights under Articles 14 and 16 of the
Constitution of India.
19. As argued by the learned counsel for the High
Courts, the legal position is that after participating in the
recruitment process, the unsuccessful candidates cannot
turn around and challenge the recruitment process.
However, it is also settled that the principle of estoppel
cannot override the law. Such legal principle was reiterated
by the Supreme Court in Dr.(Major) Meeta Sahai Vs.
Union of India (2019) 20 SCC 17 where it was observed as
under:
"17. However, we must differentiate from this
principle insofar as the candidate by agreeing to
participate in the selection process only accepts the
prescribed procedure and not the illegality in it. In a
situation where a candidate alleges misconstruction
of statutory rules and discriminating consequences
arising therefrom, the same cannot be condoned
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merely because a candidate has partaken in it. The
constitutional scheme is sacrosanct and its violation
in any manner is impermissible. In fact, a candidate
may not have locus to assail the incurable illegality
or derogation of the provisions of the Constitution,
unless he/she participates in the selection process."
20. Guided by the above ratio, in matters like this, to
non-suit the writ petitioners at the threshold would hardly
be reasonable particularly when the alleged deficiencies in
the process could be gauged only by participation in the
selection process."
13. From the perusal of above-quoted judgments, it is quite evident that
a candidate cannot be estopped from assailing clause(s) of advertisement which
are arbitrary and violative of Article 14 of the Constitution of India. The
petitioners in the present case are assailing one clause of the advertisement on
the ground that it is contrary to applicable Rules, meaning thereby, question of
validity of the clause is involved. As they are assailing one clause of the
advertisement which prima facie seems to be contrary to 1980 Rules, the
petitions cannot be rejected at threshold. The matter needs to be examined on
merits.
14. It is settled proposition of law that terms and conditions of the
advertisement cannot be contrary to Rules. If any clause of the advertisement is
contrary to Rules, it is liable to be ignored or read in the manner as prescribed in
the Rules.
15. From the perusal of affidavit dated 17.03.2025 of the respondent, it
is evident beyond the pale of doubt that expression 'research/analytical
experience' is entirely different from 'research and analytical experience'. The
respondent is also of the opinion that experience of 'research and analytical'
means a person is having experience of research as well as analytical whereas
expression 'experience of research/analytical' means a person is having
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CWP-31866-2024 and other connected matters
experience of either research or analytical or both. In the advertisement, the
respondent has prescribed experience as 'research/analytical' meaning thereby a
candidate may be having experience of research or analytical. He is not
required to possess experience of research as well as analytical. From the
perusal of Rules, it is evident that Legislature has used expression
'research/analytical' for few posts e.g. SSO (NDPS), SSO (Technology) whereas
expression 'research and analytical' has been used qua posts of SSO (DNA),
SSO (Scene of Crime). Both the expressions are carrying different meaning and
of different connotation. Both the expressions are not inter-changeable or
synonymous whereas both the expressions are independent. Thus, the impugned
clause of the advertisement is contrary to Rules. It is settled law that no term or
condition of the advertisement can be contrary to Rules. As, in the instant case,
impugned clause is contrary to Rules, is liable to be declared invalid.
16. The respondent till date has not finally selected candidates, thus, it
would not be inappropriate on the part of this Court to interfere at this stage.
17. In the wake of above discussion and findings, the instant petitions
deserve to be allowed and accordingly allowed. Impugned clause i.e. Clause
6(ii) of the Advertisement is hereby declared invalid. The respondent shall
consider experience of all the candidates, for the post in question, as per 1980
Rules.
18. Pending applications, if any, also stand disposed of.
18.03.2025 (JAGMOHAN BANSAL)
shivani JUDGE
Whether reasoned/speaking Yes
Whether reportable Yes
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