Food Corporation Of India vs Rimjhim

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO._3600 OF 2019 (Arising from SLP(C) No.4210 of 2019)

Food Corporation of India ..Appellant

Versus

Rimjhim ..Respondent

JUDGMENT

M.R. SHAH, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 03.08.2018 passed by the Division

Bench of the High Court of Delhi at New Delhi in L.P.A. No. 383

of 2018, by which the Division Bench has allowed the said appeal

preferred by the respondent herein – the original writ petitioner Signature Not Verified

and has quashed and set aside the judgment and order passed Digitally signed by VISHAL ANAND Date: 2019.04.09 18:07:31 IST Reason:

by the learned Single Judge of the High Court, dismissing the

1 writ petition preferred by the original writ petitioner and

consequently quashed and set aside the action of the Food

Corporation of India (hereinafter referred to as the ‘FCI’) rejecting

the case of the original writ petitioner for appointment on the

post of Assistant Grade­II(Hindi), the original respondent – the

appellant herein has preferred the present appeal.

3. The facts leading to the present appeal in nutshell are

as under:

That the appellant herein – the original respondent –

FCI invited applications for the post of Assistant Grade­II (Hindi)

by publishing an advertisement on 14.02.2015. The original writ

petitioner applied for the said post on 16.03.2015. Her

application form was accepted and she was issued an admitted

card for the written test to be conducted by the FCI. The written

test was held on 4.10.2015. The original writ petitioner was

short­listed. She was ranked sixth in the merit list. A call letter

was issued to her on 31.12.2015. She was asked to report at the

Zonal office of the FCI and produce her original documents,

which were retained by the FCI and after verification, the same

were returned. However, she did not receive the final letter of

appointment. The list of selected candidates was published on

2 the website of the FCI on 2.5.2016, in which her name did not

figure. Therefore, a representation was submitted by her on

6.5.2016, which was not considered favourably. Therefore, the

original writ petitioner approached the High Court by way of a

writ petition. Before the learned Single Judge, it was the case on

behalf of the FCI that the original writ petitioner was not finally

selected as she did not produce any experience certificate to show

that she had one year’s experience of translation from English to

Hindi and vice­versa. It should be noted that before the learned

Single Judge, the original writ petitioner produced the certificates

issued by her erstwhile employer in support of her case that she

had an experience of translation from English to Hindi and vice­

versa.

3.1 The learned Single Judge dismissed the writ petition

holding that since the original writ petitioner did not have

requisite experience of one year for translation work from English

to Hindi and vice­versa, the FCI was justified in denying her

employment.

4. Feeling aggrieved and dissatisfied with the judgment

and order passed by the learned Single Judge dismissing the writ

petition, the original writ petitioner preferred Letters Patent

3 Appeal before the Division Bench of the High Court. By the

impugned judgment and order, the Division Bench has allowed

the appeal preferred by the original writ petitioner and has

quashed and set aside the judgment and order passed by the

learned Single Judge dismissing the writ petition and

consequently has set aside the action of the FCI rejecting the

case of the original writ petitioner. While passing the impugned

judgment and order, the Division Bench has observed and held

that considering the certificates produced by the original writ

petitioner dated 14.01.2015 and 18.07.2016, the original writ

petitioner can be said to have the requisite experience of

translation from English to Hindi and vice­versa, and considering

the fact that the original writ petitioner ranked 6 th in the merit

list, therefore otherwise was found to be meritorious, the Division

Bench of the High Court held that FCI was not justified in

denying the appointment to the original writ petitioner.

5. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the Division Bench of the High

Court, the FCI has preferred the present appeal.

5.1 Shri N.K. Kaul, learned Senior Advocate has appeared

on behalf of the FCI and Shri R.K. Raizada, learned Senior

4 Advocate has appeared on behalf of the respondent herein – the

original writ petitioner.

5.2 Shri N.K. Kaul, learned senior advocate appearing on

behalf of the appellant – FCI has vehemently submitted that the

Division Bench of the High Court has materially erred in setting

aside the action of the FCI in rejecting the case of the original

writ petitioner.

5.3 It is vehemently submitted by Shri N.K. Kaul, learned

Senior Advocate appearing on behalf of the appellant – FCI that it

is an admitted position that as per the advertisement, one of the

essential requirements was that the candidate must have one

year’s experience of translation from English to Hindi and vice­

versa. It is submitted that therefore a candidate was required to

submit the one year’s experience certificate/proof of translation

from English to Hindi and vice­versa at the time of submitting the

application. It is submitted that admittedly the original writ

petitioner did not produce any certificate of her having one year’s

experience of translation from English to Hindi and vice­versa.

5.4 It is vehemently submitted by Shri N.K. Kaul, learned

Senior Advocate appearing on behalf of the appellant – FCI that

certificate which was produced by the original writ petitioner

5 dated 27.08.2014, which was produced along with the

application, by no stretch of imagination, can be said to be a

certificate of one year’s experience of translation from English to

Hindi and vice­versa, as required. It is submitted that what was

produced by the original writ petitioner was a relieving­cum­

experience letter. It is submitted that therefore the FCI was

justified in not appointing the original writ petitioner as the

original writ petitioner did not produce any experience certificate

to fulfil the eligibility criteria. Relying upon clauses 28, 32, 33,

35 and 37 of the advertisement, it is submitted by Shri Kaul,

learned Senior Advocate appearing on behalf of the FCI that the

FCI was justified in not appointing the original writ petitioner.

5.5 It is further submitted by Shri N.K. Kaul, learned

Senior Advocate appearing on behalf of the appellant – FCI that

the Division Bench of the High Court has materially erred in

considering the certificates produced subsequently, namely,

certificates dated 14.01.2015 and 18.07.2016. It is submitted

that as such the experience certificate was required to be

produced at the time of submitting the application and/or at

least at the time of verification of documents. It is submitted that

the certificates dated 14.01.2015 and 18.07.2016 upon which the

6 reliance has been placed by the original writ petitioner were

neither produced by the original writ petitioner along with the

application form nor even at the time of verification of the

documents. It is submitted that therefore the Division Bench of

the High Court has materially erred in considering those

certificates while holding that the original writ petitioner was

having one year’s experience of translation from English to Hindi

and vice­versa, as required as per the advertisement.

5.6 It is vehemently submitted by Shri N.K. Kaul, learned

Senior Advocate appearing on behalf of the appellant – FCI that if

the impugned judgment and order passed by the Division Bench

of the High Court is accepted, in that case, there shall not be any

sanctity of the requirement as per the advertisement. It is

submitted that if the candidate is permitted to produce the

relevant experience certificate subsequently and that too after the

selection process is over, in that case, there shall not be any

sanctity of the relevant clauses of the advertisement and/or the

procedure which is required to be followed as per the

advertisement and there shall not be any end to the selection

process.

7 5.7 Making the above submissions, it is prayed to allow

the present appeal and quash and set aside the impugned

judgment and order passed by the Division Bench of the High

Court.

6. The present appeal is opposed by Shri R.K. Raizada,

learned Senior Advocate appearing on behalf of the original writ

petitioner.

6.1 It is vehemently submitted by the learned Counsel

appearing on behalf of the original writ petitioner that in the facts

and circumstances of the case and considering the fact that the

original writ petitioner was, in fact, having the requisite

experience of translation from English to Hindi and vice­versa,

and considering the fact that on merits even the original writ

petitioner ranked 6th in the merit list, the Division Bench of the

High Court has not committed any error in quashing and setting

aside the action of the FCI in rejecting the case of the original

writ petitioner.

6.2 It is vehemently submitted by the learned Counsel

appearing on behalf of the original writ petitioner that as rightly

observed by the Division Bench, at the most, non­production of

the requisite experience certificate can be said to be mere

8 irregular which shall not defeat the case of a meritorious

candidate. It is submitted that as such in the present case in the

advertisement it was not specifically mentioned that a candidate

has to produce the experience certificate along with the

application. It is submitted that the advertisement speaks about

the essential eligibility criteria. It is submitted that therefore

when in the advertisement it was not specifically mentioned that

a candidate has to produce the certificate/experience certificate

along with the application, non­production of the experience

certificate along with the application cannot be said to be fatal so

as to deny the legitimate right of the original writ petitioner to

consider her case for appointment on merits.

6.3 It is submitted by the learned Counsel appearing on

behalf of the original writ petitioner that as such in the counter

affidavit filed by the FCI before the High Court, the FCI did not

specifically disputed and/or doubted the certificates dated

14.01.2015 and 18.07.2016.

6.4 It is further submitted by the learned Counsel

appearing on behalf of the original writ petitioner that as rightly

observed by the Division Bench of the High Court, when the

original writ petitioner appeared before the authority for

9 verification of the documents, if the FCI would have any doubt

about the original writ petitioner having not fulfilled any eligibility

criteria, more particularly one year’s experience, considering

clause 33 of the advertisement, the FCI/authority could have

called for any additional documentary evidence in support of

educational qualification and experience of the applicant. It is

submitted that therefore in the facts and circumstances of the

case and after having been satisfied that the original writ

petitioner was fulfilling all the eligibility criteria including one

year’s experience of translation from English to Hindi and vice­

versa and having found that the original writ petitioner ranked

6th in the merit list and therefore otherwise found to be

meritorious, the Division Bench of the High Court has rightly set

aside the action of the FCI in rejecting the case of the original

writ petitioner.

6.5 Making the above submissions, it is prayed to dismiss

the present appeal.

7. We have heard learned Senior Advocates appearing on

behalf of the respective parties at length.

7.1 At the outset, it is required to be noted that the

original writ petitioner was denied the appointment on the post of

10 Assistant Grade­II (Hindi) on the ground that the original writ

petitioner did not produce the certificate of one year’s experience

of translation from English to Hindi and vice­versa along with the

application and/or even at the time of verification of documents.

According to the FCI, one year’s experience of translation from

English to Hindi and vice­versa was essential to become a

candidate eligible for the post in question. It is required to be

noted that the aforesaid stand was taken by the FCI for the first

time before the learned Single Judge in a writ petition filed by the

original writ petitioner. Therefore, the original writ petitioner

produced the certificates dated 14.01.2015 and 18.07.2016

issued by her erstwhile employer, in support of her case that she

was having one year’s experience of translation from English to

Hindi and vice­versa.

8. The learned Single Judge dismissed the writ petition

solely relying upon and/or considering the document produced

by the original writ petitioner as relieving­cum­experience letter

dated 27.08.2014 and opined that from the said letter, it cannot

be said that the original writ petitioner had one year’s experience

of translation from English to Hindi and vice­versa, which was

the essential requirement to become a candidate eligible.

11 However, the learned Single Judge did not consider the

certificates dated 14.01.2015 and 18.07.2016 issued by the

erstwhile employer of the original writ petitioner. If the aforesaid

two certificates are considered, in that case, it can safely be said

that the original writ petitioner was having one year’s experience

of translation from English to Hindi and vice­versa and therefore

fulfilled all the essential requirements/eligibility criteria. As

observed hereinabove, and it can be seen from the counter

affidavit filed on behalf of the FCI, filed before the High Court, the

FCI have not doubted the aforesaid two certificates. Their only

contention seems to be that as the original writ petitioner did not

produce the certificate of one year’s experience of translation

from English to Hindi and vice­versa either along with the

application or even at the time of verification of documents, the

aforesaid certificates cannot be considered at all and therefore in

absence of those certificates and/or any certificate of having one

year’s experience in translation from English to Hindi and vice­

versa, which was the essential requirement, the original writ

petitioner cannot be said to have fulfilled the eligibility

criteria/essential requirement of having one year’s experience.

12

9. So far as the case on behalf of the FCI that as the

original writ petitioner did not produce the certificate of one

year’s experience along with the application is concerned, it is

required to be noted that in the advertisement there was no such

requirement. What is provided in the advertisement is that a

candidate must have one year’s experience of translation from

English to Hindi and vice­versa along with the other

qualifications. The advertisement does not provide specifically

and/or provide that a candidate shall produce the certificate of

experience along with the application. Therefore, the Division

Bench of the High Court has rightly observed that non­

production of one year’s experience certificate along with the

application cannot be said to be fatal to the case of the original

writ petitioner and on that ground the original writ petitioner

could not have been denied the appointment, if otherwise she is

found to be meritorious. We are in complete agreement with the

view taken by the Division Bench of the High Court.

10. Now so far as the submission on behalf of the FCI that

the original writ petitioner did not produce the certificate of one

year’s experience even at the time of verification of documents

and what was produced was the relieving­cum­experience letter

13 dated 27.08.2014 along with the application and on the basis of

which it cannot be said that the original writ petitioner was

having one year’s experience is concerned, it is required to be

noted that at the time of verification of the documents, the

original writ petitioner was not informed/told that the letter

dated 27.08.2014 is not sufficient to establish the essential

requirement of one year’s experience. The original writ petitioner

was also not told/informed at the time of verification of

documents on 18.01.2016 that certificate of one year’s experience

is lacking.

10.1 Clause 33 of the advertisement, which is also

considered by the Division Bench of the High Court, provides that

the management reserves the right to call for any additional

documentary evidence in support of educational qualification &

experience of the applicant. As found from the record and even

as observed by the Division Bench, the management at the time

of verification of the documents, did not thought it fit to call upon

the applicant to produce any additional documentary evidence in

support of her experience. The management could have called

for any additional documentary evidence in support of experience

of the applicant. If the management would have called for the

14 additional documentary evidence in support of experience of the

applicant, in that case, the original writ petitioner would have

produced the certificates, which are subsequently produced

before the High Court. At the cost of the repetition, it is to be

noted that the FCI has not doubted the certificates dated

14.01.2015 and 18.07.2016 issued by the erstwhile employer of

the original writ petitioner. Therefore, the Division Bench of the

High Court has rightly observed and held considering the

aforesaid two certificates that the original writ petitioner was

having one year’s experience of translation from English to Hindi

and vice­versa and therefore fulfilled all the requisite essential

requirements/qualifications and therefore she was required to be

considered for appointment on merits.

11. Now so far as the submission on behalf of the FCI that

a candidate must and/or ought to have produced the experience

certificate along with the application is concerned, at this stage, a

decision of this Court in the case of Charles K. Skaria v. Dr. C.

Mathew (1980) 2 SCC 752 and the subsequent decision of this

Court in the case of Dolly Chhanda v. Chairman, Jee and others

(2005) 9 SCC 779 are required to be referred to. In the case of

Charles K. Skaria (supra), this Court had an occasion to consider 15 the distinction between the essential requirements and the

proof/mode of proof. In the aforesaid case, this Court had an

occasion to consider the distinction between a fact and its proof.

In the aforesaid case before this Court, a candidate/student was

entitled to extra 10% marks for holders of a diploma and the

diploma must be obtained on or before the last date of the

application, not later. In the aforesaid case, a candidate secured

diploma before the final date of application, but did not produce

the evidence of diploma along with the application. Therefore, he

was not allowed extra 10% marks and therefore denied the

admission. Dealing with such a situation, this Court observed

and held that what was essential requirement was that a

candidate must have obtained the diploma on or before the last

date of application but not later, and that is the primary

requirement and to submit the proof that the diploma is obtained

on or before a particular date as per the essential requirement is

secondary. This Court specifically observed and held that “what

is essential is the possession of a diploma before the given date;

what is ancillary is the safe mode of proof of the qualification”.

This Court specifically observed and held that “to confuse

between a fact and its proof is blurred perspicacity”. This Court

16 further observed and held that “to make mandatory the date of

acquiring the additional qualification before the last date for

application makes sense. But if it is unshakeably shown that the

qualification has been acquired before the relevant date, to

invalidate the merit factor because proof, though indubitable,

was adduced a few days later but before the selection or in a

manner not mentioned in the prospectus, but still above board, is

to make procedure not the handmaid but the mistress and form

not as subservient to substance but as superior to the essence.

While observing and holding so, in paragraphs 20 & 24, this

Court observed and held as under:

“20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary.

Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor..... Mode of proof is geared to the goal of the 17 qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above­board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence.

xxx xxx xxx

24. It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise.

This way of viewing problems dehumanises the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over­emphasis on the external rather than the essential. We think the government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark­lists from universities, why, even bail orders from courts and Government Orders from public offices. This

18 frustrating delay was by­passed by the State Government in the present case by two steps.

Government informed the selection committee that even if they got proof of marks only after the last date for applications but before the date for selections they could be taken note of and secondly the Registrars of the Universities informed officially which of the candidates had passed in the diploma course. The selection committee did not violate any mandatory rule nor act arbitrarily by accepting and acting upon these steps. Had there been anything dubious, shady or unfair about the procedure or any mala fide move in the official exercises we would never have tolerated deviations. But a prospectus is not scripture and common sense is not inimical to interpreting and applying the guide­lines therein. Once this position is plain the addition of special marks was basic justice to proficiency measured by marks.”

11.1 A similar view is taken by this Court subsequently in

the case of Dolly Chhanda (supra), relying upon the aforesaid

decision of this Court in the case of Charles K. Skaria (supra).

12. Applying the law laid down by this Court in the

aforesaid two cases to the facts and circumstances of the case on

hand, we are of the opinion that the Division Bench has rightly

set aside the action of the FCI in rejecting the case of the original

writ petitioner and has rightly directed the FCI to consider the

case of the original writ petitioner for appointment on merits, if

all other conditions stand satisfied.

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13. In view of the above and for the reasons stated above,

the present appeal fails and the same deserves to be dismissed

and is accordingly dismissed. However, in the facts and

circumstances of the case, there shall be no order as to costs.

……………………………….J. [L. NAGESWARA RAO]

NEW DELHI; ……………………………….J. APRIL 09, 2019. [M.R. SHAH]

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