Chaudhary Charan Singh Haryana Agricultural University, Hisar & Anr. vs Monika & Ors.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10800 OF 2024

CHAUDHARY CHARAN SINGH HARYANA AGRICULTURAL UNIVERSITY, HISAR & ANR. … APPELLANTS

VS.

MONIKA & ORS. … RESPONDENTS

JUDGMENT

DIPANKAR DATTA, J.

THE APPEAL

1. The present appeal assails the judgment and order dated 6th December,

2023 passed by the Division Bench of the Punjab and Haryana High Court

at Chandigarh1 in LPA No. 562/2022 (O&M), affirming the decision of the

Single Judge whereby the first respondent was directed to be considered Signature Not Verified Digitally signed by JATINDER KAUR Date: 2024.11.29 18:23:32 IST Reason: 1 High Court, hereafter Page 1 of 18 and offered appointment in the first appellant-Chaudhary Charan Singh

Haryana Agricultural University2 on the post of Clerk.

THE QUESTION

2. The short question arising for decision in the appeal is, whether the

Single Judge and then the Division Bench of the High Court were in error

in treating the first respondent as qualified for consideration and

consequent appointment.

RESUME OF FACTS

3. The relevant facts essential to decide the present appeal are as follows:

I. In 1970, the University was established upon enactment of the

Haryana and Punjab Agricultural Universities Act, 1970.

II. In 2009, the second respondent-State of Haryana3 vide Circular No.

43/5/2001-IGSI introduced an outsourcing policy relating to

engagement of persons on contract basis through service

providers4. This circular was adopted by the University vide memo

dated 24.02.2010.

III. In 2014, the SoH issued a further Circular bearing No. 43/5/2001-

3GSII relating to issuance of experience certificates to persons

engaged under the aforementioned outsourcing policy. This circular

too was adopted by the University on 25.06.20145.

IV. In 2017, the University invited tenders for the purpose of providing

manpower relating to office/hospitality and lab/technical under Part

2 University, hereafter 3 SoH, hereafter 4 Outsourcing Policy, hereafter 5 Circular dated 25.06.2014, hereafter Page 2 of 18 I of the Outsourcing Policy. Vide Office Order dated 29.03.2017, the

contract was awarded to two service agencies by the University.

The first respondent was engaged by one of the service agencies,

namely, M/s Lavnya Enterprises6, to work as a clerk-cum-typist as

outsourced manpower for the time period between 05.05.2017 and

31.03.2018 in the University.

V. A certificate of experience was awarded to the first respondent by

Lavnya dated 01.04.2018. This certificate was countersigned by the

Professor and Head of the Department of Soil Science of the

University.

VI. Vide an advertisement7, the University invited applications for

direct recruitment to various Group-C (non-teaching) posts. Under

the criteria for selection, the advertisement prescribed a maximum

of five (5) out of hundred (100) marks for ‘Experience’. It specified

that half a mark (0.5) would be given for experience in the same

or higher post in any department / board / corporation / company

/ statutory body / commission / authority of the Government of

Haryana, for each year or part thereof which exceeds six months

but limited to a maximum of ten (10) years.

VII. In pursuance of the advertisement, the first respondent had applied

and offered her candidature. Admittedly, the first respondent

scored 75 marks in the written test and was, accordingly, placed in

6 Lavnya, hereafter 7 Advertisement, hereafter Page 3 of 18 Sl. No 103 and ranked Gen-92 in the merit list, and fell short of

selection.

VIII. Aggrieved, the first respondent invoked the writ jurisdiction of the

High Court by filing WPC No. 4402/2020 (O&M)8 impleading the

University, the SoH and two selected candidates as the first,

second, third and fourth respondents, respectively.

IX. A Single Judge of the High Court by his judgment and order dated

24.05.2022 ruled that the first respondent was eligible for 0.5 mark

for the service rendered by her between 05.05.2017 and

31.03.2018. As noted above, this decision was affirmed by the

Division Bench.

IMPUGNED JUDGMENTS

4. Since the first respondent had admittedly worked in the University for a

period exceeding six months, her Writ Petition was allowed by the Single

Judge directing allotment of 0.5 mark to the first respondent. The

University was directed to consider her for appointment as well as to

offer appointment, without disturbing any selected candidate.

Aggrieved, the University carried the judgment and order allowing the

Writ Petition in a Letters Patent Appeal. The Division Bench dismissed

the appeal presented by the University on the ground that the order of

the learned Single Judge does not suffer from any illegality, thereby

leaving the University still aggrieved.

8 Writ Petition, hereafter Page 4 of 18

5. Having perused the judgment and order of the Single Judge, since

affirmed by the Division Bench, we have found the judgment and order

of both the writ court as well as the appellate court to be rather cryptic.

Exception cannot be taken to any judgment merely on the ground of its

brevity but if the judgment is cryptic and conclusions are reached

without proper analysis of facts and materials on record, the party

aggrieved would be justified in seeking setting aside of such judgment.

It is, perhaps, for such reason notice had been issued by a coordinate

Bench pursuant whereto the first respondent appeared; and, thereafter,

the parties argued their cases fully. However, since focused

consideration, due application of judicial mind and clarity of reasoning

are the imperatives of a proper judicial decision, we have thought it fit

to reflect on the issue arising for decision with the seriousness the same

deserves.

CONTENTIONS

6. The impugned judgment has been assailed by the University on the

grounds that:

I. Paragraph 1 of Part I of the Outsourcing Policy stipulates that

services may be outsourced as and when required partly or

completely by the departments where posts have not been

sanctioned. Part II deals with engagement of persons on contract

basis where the regular posts exist. In the instant case, the first

respondent was deputed in one of the universities through a

service provider under Part I of the Outsourcing Policy.

Page 5 of 18 II. Since the first respondent was engaged in the University by the

service provider, Lavnya, under the Outsourcing Policy for the

requirements of office work and not appointed on any regular or

sanctioned post of clerk, the experience acquired by her cannot be

equated with the experience of working on a sanctioned post of

clerk.

III. Considering that the post was not a regular or sanctioned post, the

first respondent cannot be deemed to have gained experience of

working in the same or higher post, as required by the

Advertisement.

IV. Experience Certificate was not issued by the University but rather

by Lavnya. Merely because it was countersigned by the Head of

the Department does not make it a certificate issued by the

University. Attention was drawn to the Circular dated 25.06.2014,

which prohibits issuance of an experience certificate by any

authority where persons are engaged through a service provider,

i.e., under Part I of the Outsourcing Policy.

V. The High Court overlooked the fact that the first respondent’s

application described her engagement for the concerned time

period as contractual employment and that her employer was the

University, which is incorrect as the first respondent was neither

appointed by the University nor ever worked with the University

on any temporary or permanent post.

Page 6 of 18 VI. The first respondent has not submitted the valid experience

certificate issued by the department / board / corporation /

company / statutory body / commission / authority of the

Government of Haryana; therefore, the scrutiny committee has

not considered the so-called experience of the first respondent and

allotted her marks which is justified on facts and in the

circumstances.

VII. The last candidate who was selected (securing 75 marks) is still 8

ranks higher than the first respondent. If the relief granted by the

High Court is upheld, then the seniority of the appointed

candidates will have to be disturbed. Moreover, the select list

having been exhausted, the appointment cannot be given to the

first respondent.

7. Based on these grounds, interference with the impugned judgment and

order of the Division Bench was claimed by the University.

8. Representing the first respondent, her learned counsel contended that

the judgment and order of the Single Judge is well-considered and well-

reasoned; hence, it is unexceptionable and no interference is warranted.

9. It was further contended that:

I. The first respondent though had rendered services to the

University on contract, she had done the work like other similarly

situated persons working under either the outsourcing policy or on

regular basis.

Page 7 of 18 II. As per the Policy, the essential requirement of experience is that

the candidate must be working in any department of the

Government of Haryana irrespective of the mode of recruitment

because government institutes can hire manpower in any of the

two modes and in both the cases, work is done in the government

department.

III. The University did not disclose the fact that the post of Clerk-cum-

Typist is a sanctioned post.

IV. Denying marks of experience to the first respondent is

unreasonable, arbitrary and violative of Articles 14, 15, 16, 19 and

21 of the Constitution of India.

V. The last candidate selected in the general category secured 76

marks and if the mark (0.5) for experience is granted to the first

respondent, she would enter the zone of selection for appointment

on the post of clerk.

VI. There are 13 posts lying vacant and the selection list is valid for

one year.

VII. That in the case of Sachivalaya Dainik Vetan Bhogi

Karamchari Union v. State of Rajasthan & Ors.9, this Court

upheld the policy of the State of Rajasthan for giving weightage to

the services rendered by the employees, where services were used

by the State either temporarily or on ad-hoc basis.

9 (2017) 11 SCC 421.

Page 8 of 18 VIII. The University has also issued 2nd Appointment List wherein, two

candidates who have secured 75 marks have been selected and

appointed for the said post, i.e., the third and the fourth

respondent.

10. Learned counsel concluded by submitting that the University read words

in the Advertisement to exclude the first respondent from the zone of

consideration, which was rightly interdicted by the Single Judge and the

Division Bench in its concurrent findings. As a sequel thereto, the appeal

deserves outright dismissal.

ANALYSIS AND REASONS

11. The crux of the dispute is whether the first respondent, in terms of the

Advertisement, was eligible to be awarded half a mark (0.5) under the

category of ‘experience’ vis-à-vis her engagement as outsourced

manpower for the concerned time period, in light of the Rules and

Circulars of the SoH as adopted by the University.

12. It is an admitted fact that the first respondent was appointed under Part

I of the Outsourcing Policy, which relates only to employment made when

no sanctioned post exists. Although the first respondent has urged that

the University has not disclosed the existence of a sanctioned post either

before the High Court or this Court, nothing turns on it. It is not in

dispute that the first respondent was never directly appointed by the

University on any sanctioned post of Clerk. Having regard to the

Outsourcing Policy, through which the first respondent came to be

appointed, we shall proceed with our analysis resting on the premise

Page 9 of 18 that no sanctioned post of Clerk existed at the time when the first

respondent was first engaged in the University through the service

provider or, even if one existed, the first respondent could not have been

accommodated there at the relevant time.

13. The point that would engage our consideration in this case is whether

the noun ‘post’ in the subject advertisement would invariably mean a

sanctioned post and whether a candidate would not be eligible for mark

for experience if he/she has not worked on a regular/sanctioned post.

14. We have not been referred by the parties to any precedent having a

direct bearing on the question arising for decision here. However, prior

to looking at the Advertisement, it would be worthwhile to bear in mind

what this Court held in the decisions noted below.

15. In Dr. Kumar Bar Das v. Utkal University10, a case concerning the

provision of marks for experience in connection with recruitment, a 3-

Judge Bench of this Court noted that one must not apply the words in

the advertisement in a technical sense but must rather give effect to the

words mentioned in the advertisement:

“29. No doubt, in clause 9 of the endowment, it was stated that the procedure for selection would be the same as followed for a Professor's selection. This, in our view, was referable merely to the procedure. If the advertisement stressed on the research experience also and not merely the teaching experience, the column in the pro forma for awarding marks when it referred to ‘teaching experience’ has to be treated as one meant to cover teaching and research experience. The Selection Committee and the Syndicate followed the right procedure but the Chancellor went wrong in confining himself to the actual language of the pro forma and in omitting to give effect to the words ‘and/or research experience’ contained in the advertisement and the UGC Regulations. This, in our view, is a clear illegality in the order of

10 (1999) 1 SCC 453.

Page 10 of 18

the Chancellor. The High Court ought to have, therefore, come to the rescue of the appellant and set right the illegality.”

(emphasis supplied)

16. Dr. (Major) Meeta Sahai v. State of Bihar11 arose out of a case where

the advertisement provided for the grant of marks for work experience

after appointment on a regular/contract basis in the government

hospitals. In the advertisement, it was also stated that only work

experience in government hospitals of the Government of Bihar would

be counted for this purpose. This Court, therefore, in interpreting the

term “government hospital” held:

“20. It is a settled canon of statutory interpretation that as a first step, the courts ought to interpret the text of the provision and construct it literally. Provisions in a statute must be read in their original grammatical meaning to give its words a common textual meaning. However, this tool of interpretation can only be applied in cases where the text of the enactment is susceptible to only one meaning. [Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271, para 13.] Nevertheless, in a situation where there is ambiguity in the meaning of the text, the courts must also give due regard to the consequences of the interpretation taken.

…

23. …The phrase ‘government hospital’ therefore cannot be construed to exclude other non-private hospitals which are otherwise run exclusively with the aid and assistance of the Governments. Additionally given the difference in common usage wherein ‘government hospital’ refers to all non-private hospitals and not hospitals established by a particular Government, Rules 5 & 6(iii) would not be bound by Rule 2(a).” (emphasis supplied)

17. The first respondent has also referred us to the decision of Sachivalaya

Dainik Vetan Bhogi Karamchari Union (supra). It would be

appropriate to delve into the facts in that case before deciding the

11 (2019) 20 SCC 17.

Page 11 of 18 applicability of the law laid down therein in this present dispute. In that

case, the members of the Workers Union were Class-IV employees. The

employees filed a writ petition seeking regularisation of service. When

the writ petition came up for hearing, it was represented that the dispute

was settled out of Court and the terms were reduced to writing.

Thereafter, the respondent issued an advertisement inviting tenders

from contractors for the supply of Class IV employees. The Workers

Union approached the High Court once again by way of a writ petition

challenging the advertisement on the ground that those conditions were

contrary to the settlement. During the pendency of this writ petition,

another advertisement was invited and the respondent decided to

provide some weightage in favour of the members of the Union by taking

a decision to accord certain bonus marks in favour of those who had

been working with the Department on a temporary basis. This decision

of the respondent was once more challenged and the High Court ruled

that the grant of these marks was arbitrary and directed that a lower

weightage be given. Aggrieved, the State of Rajasthan carried the matter

to this Court. During its pendency before this Court, an Hon’ble Division

Bench of the Rajasthan High Court ruled in the pending writ petition [WP

No. 3235/2004] that the settlement entered into between the parties

cannot be enforced due to the decision of the Supreme Court in

Secretary, State of Karnataka v. Umadevi (3)12. While this Court,

no doubt, upheld the settlement deed wherein the respondent awarded

12 (2006) 4 SCC 1 Page 12 of 18 bonus marks to the candidates for working in certain ad-hoc positions,

it did so in the background of the complex and labyrinthine facts and

circumstances that had played out before the Rajasthan High Court.

There is no doubt in our mind that this case must be distinguished from

the instant case as it does not lay down a general rule regarding the

provision of experience marks while working in a contractual/non-regular

post, but rather is limited to the enforcement of an already existing

settlement agreement between the State and the concerned contractual

employees.

18. In a different context, where promotion was the matter of concern before

this Court in Union of India v. M. Bhaskar13, it was held that:

“15. The aforesaid decision has been challenged in this appeal by the Union of India by contending that 2 years’ period of experience has to be reckoned, not from 11-10-1988, but from 21-9-1989. There is no dispute that the eligibility condition is 2 years’ experience in Grade II. Now, this respondent having really started working in Grade II pursuant to the order of 21-9-1989, he could not have gained experience prior to the date he had joined pursuant to this order. The mere fact that his promotion in Grade II was notionally made effective from 11-10-1988 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the person promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of the actual promotion.”

(emphasis supplied)

19. Also, while not a decision related to service jurisprudence, in P

Kumaraswamy v. State Transport Appellate Tribunal, Madras14,

13 (1996) 4 SCC 416 14 (1976) 1 SCC 373.

Page 13 of 18 this Court held that the rule that prescribes marks to applicants who

have business or technical experience in the road transport service, did

not make any distinction between passenger transport or lorry transport.

Upon a perusal of the decision, it is clear that a literal reading of the

applicable framework is essential for any determination.

20. Taking a cue from the aforesaid decisions, our observation is this. It

cannot be gainsaid that even though the modalities for engagement of

two individuals for executing similar nature of work could differ, there

can be no quarrel that none can gain experience without being asked to

work. One vital difference in working on a sanctioned post as a

permanent employee and being employed in the exigencies of

administration without having a right to post is that in the former, the

appointee enjoys procedural safeguards bringing in a sense of security

of service in him while in the latter the individual concerned may not

have any such sense of security. But, in case, both perform the work of

clerks, the experience gained would not be much at a variance subject,

of course, that the job requirement is not too different. It would also be

relevant to bear in mind stipulations in the advertisement if, at all, they

call for any special requirement for marks to be secured for experience,

viz. previous service rendered on a sanctioned post or if salary, as is

specified, has to be received for service rendered in order to be eligible

to apply.

21. Moving on to the Advertisement in this case calling for our attention, we

find that it required:

Page 14 of 18

“(d) Experience: One half (= 0.5) mark for each year or part thereof exceeding six months of experience, out of a maximum of 10 years, on the same or a higher post in any Department/Board/ Corporation/Company/Statutory Body/Commission/Authority of Government of Haryana. No marks will be awarded for a period less than six months.

(a maximum of 5 marks)”

22. A literal reading of the terms relating to experience confirms that marks

could be secured by an aspirant for experience gathered while working

in the enumerated departments of the Government of Haryana; however,

while referring to ‘same or a higher post’, the term ‘sanctioned’ as a

prefix is conspicuous by its absence. Additionally, neither the

Outsourcing Policy nor the Advertisement defines the word “post”. What

follows is that an aspirant, to secure mark for experience, must prove

with documents that he/she has been employed for performing work of

the nature required by the same or a higher post. Importantly, it has not

seen shown that either the Recruitment Rules or the Advertisement

specifically bar(s) aspirants from securing marks for experience sained

from contractual / outsourced employment. Thus, we have no hesitation

to hold that the mode of employment is not the primary concern. To our

mind, the primary concern is the nature of work performed and whether

the work undertaken by the candidate has any nexus with the purported

work to be undertaken during the course of regular service. That the first

respondent had rendered service for a statutory body in excess of six

months and is, therefore, covered by the last part of clause (d) does not

admit of any doubt and hence, she had a valid claim for securing 0.5

mark for experience.

Page 15 of 18

23. The state policy, specifying that the individual must have worked on a

post equal to or higher than the advertised posts in any of the

enumerated departments to secure marks for experience, also reflects

the state’s belief that the experience in such departments is directly

relevant to the advertised posts. It is not open for the University to now

deny marks on the basis of a technical procedural deviation that the

experience certificate was not issued by the University, but rather by the

service provider. While we accept the contention raised by the University

that the certificate was per se not issued by it, the fact that it was

countersigned by the Head of the Department validates the first

respondent’s claim that she had indeed gained certain experience which

deserved to be given credit.

24. We also do not agree with the contention of the University that the first

respondent did not work on the post of Clerk and rather performed

“office work”. The certificate awarded to her evidently mentions that the

work she was required to undertake is the work of Clerk-cum-Typist.

Moreover, the certificate also mentions that her work was found quite

satisfactory. The first respondent has also brought on record a memo by

the Professor and Head of the Department which specifically

acknowledges that she has been designated as a Clerk-cum-Typist during

her tenure.

25. The first respondent, thus, cannot be denied the benefit of mark for

experience merely because at the time of appointment as outsourced

manpower, she was not appointed on a sanctioned post.

Page 16 of 18

26. The true thrust of every selection process ought to be to find out and

select suitable candidates, having experience in the related work and

fulfilling other criteria, from among eligible candidates and to go ahead

with appointing the more meritorious of those found suitable. If indeed

an individual without having any security of service performs up to the

mark and receives commendation from none other than the Head of the

Department, who must have closely watched his/her performance, it

would occasion a failure of justice to exclude such individual for no better

reason than that he/she did not work on a sanctioned post. If indeed

such be the requirement, it had to be made explicitly clear in the

Advertisement without any ambiguity so as not to generate false hopes

in the minds of individuals aspiring for public employment. Any other

view would be against both the principles of equality and non-

arbitrariness enshrined in the Constitution as well as principles of natural

justice. Tested on the touchstone of Articles 14 and 16, the impugned

decision of the University cannot sustain.

27. An underlying current throughout the Constitution is the theme of “social

justice”. The Preamble, as well as Article 38 of the Constitution, enjoins

upon the State instrumentalities the duty to promote the welfare of the

people by securing and protecting, as effectively as it may, a social order,

in which justice – social, economic and political – shall inform all the

institutions of national life and endeavour to eliminate inequalities in

status, facilities and opportunities. Whenever a conflict arises between

the powerful and the powerless, social justice commands the Courts to

Page 17 of 18 lean in favour of the weaker and poorer sections where the scales are

evenly balanced.

28. In this case, for the foregoing reasons, refusal to award any mark for

experience to the first respondent would go against the grain of the

constitutional duty of ensuring equality and securing social justice for

the deprived.

CONCLUSION

29. Bound as we are to apply the Constitutional mandate prescribed in

Articles 14 and 16 read with the preambular promise of securing social

justice, we hold that non-grant of mark for experience to the first

respondent was not proper and legal.

30. For reasons somewhat different from those assigned by the High Court,

we concur with the ultimate conclusion and hold that the impugned

judgment and order of the Division Bench of the High Court warrants no

interference. The same is, thus, affirmed.

31. The appeal is, accordingly, dismissed without any order for costs.

………………………………J. (DIPANKAR DATTA)

………………………………J. (R. MAHADEVAN)

New Delhi;

November 29, 2024.

Page 18 of 18