Ritu Bhatia vs Ministry of Civil Supplies Consumer Affairs & Public Distribution and Others

CIVIL APPEAL NO. 1467 OF 2019 (ARISING OUT OF SLP (CIVIL) NO.116 OF 2018)

RITU BHATIA .. APPELLANT(S)

Versus

MINISTRY OF CIVIL SUPPLIES CONSUMER AFFAIRS & PUBLIC DISTRIBUTION AND OTHERS ..RESPONDENT(S)

JUDGMENT

M.R.SHAH, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the Division Bench of the High Court of

Delhi dated 31.07.2017 passed in Letter Patent Appeal (LPA) Signature Not Verified SUSHIL KUMAR RAKHEJA No.160 of 2015 by which the Division Bench has dismissed the Digitally signed by

Date: 2019.02.05 17:42:10 IST Reason:

said appeal and has confirmed the judgment and order passed by

1 the learned Single Judge dated 02.02.2015 passed in Writ

Petition (C) No.977 of 2015 dismissing the said writ petition by

not interfering with the order terminating the services of the

appellant, the original writ petitioner has preferred the present

appeal.

3. That respondent no.2 herein­Central Railside Warehouse

Company Limited invited applications for the post of Company

Secretary. That respondent no.2’s advertisement, specifically

provided for, five years post qualification mandatory experience

as a Company Secretary as on 30.11.2013 in a PSU/Private

Company of repute. The appellant herein applied for the post of

Company Secretary. In her application she categorically stated

that she had post qualification experience of seven years and

three months. That thereafter she appeared in an interview held

by respondent no.2 and was offered appointment to the post of

Company Secretary vide memorandum dated 13.03.2014.

Thereafter, she was appointed on regular basis to the post of

Company Secretary by Office Order dated 22.04.2014. A show

cause notice dated 01.11.2014 was issued by respondent no.2

calling upon the appellant to explain why her services should not

2 be terminated as she did not have the requisite five years’

experience for the post of Company Secretary. The appellant

submitted her reply to the above show cause notice. Respondent

no.2 thereafter vide its order dated 02.01.2015 terminated the

services of the appellant.

4. The order of termination was challenged by the appellant

before the High Court in Writ Petition (C) No.977 of 2015. By

order dated 02.02.2015, the learned Single Judge dismissed the

said petition. The order passed by the learned Single Judge

dismissing the writ petition was the subject matter of the appeal

before the Division Bench of the High Court by way of LPA

No.160 of 2015. By the impugned judgment and order, the

Division Bench has dismissed the said appeal and has confirmed

the judgment and order passed by the learned Single Judge

dismissing the writ petition. The order passed by the Division

Bench in LPA No.160 of 2015 is the subject matter of the present

appeal.

5. Shri Sunil Kumar, learned Senior Counsel has appeared on

behalf of the appellant herein and Shri Gourab Banerji, learned

3 Senior Counsel has appeared on behalf of respondent no.2

herein.

5.1 Shri Sunil Kumar, learned senior counsel has submitted

that in the facts and circumstances of the case, the High court

committed a grave error in approving the order of termination on

the ground that the appellant was not having the requisite

qualification of having experience of five years as a Company

Secretary. It is submitted by Shri Sunil Kumar that the High

Court has failed to appreciate the fact that though during seven

years and three months experience shown in her application, the

appellant might have been appointed as Management Trainee

and Assistant Company Secretary and consequently might not

have been actually appointed as the Company Secretary,

however, the appellant was discharging certain or some

functions/duties during the period of a Company Secretary. It is

submitted that therefore it can be said that the appellant was

having requisite experience of five years as a Company Secretary.

Therefore, the period during which the appellant was working as

a Management Trainee is required to be counted as the requisite

experience for the post of Company Secretary.

4 5.2 It is further submitted by Shri Sunil Kumar, learned senior

counsel that the object and purpose behind asking for the

experience as a Company Secretary was that the applicant has

an experience of working as Company Secretary and not that

he/she had actually worked and/or performed the duties as a

Company Secretary under the provisions of the Company

Secretary Act 1980. It is submitted therefore, the High Court

committed an error to hold that the appellant was not having the

requisite experience as a Company Secretary.

5.3 Relying upon prescribed format of submitting the

application attached with the application form, it is submitted

that what was required was the qualification/ experience as

Company Secretary and not actual working as Company

Secretary.

5.4 It is further submitted by Shri Sunil Kumar, learned senior

counsel that as far as the experience gained by the appellant

while working with Bharat Bhushan Shares and Commodity

Brokers Limited is concerned, the High Court has committed a

grave error in considering the experience only till May, 2007,

though the Form­32 shows the date of cessation as 29.06.2007.

5 5.5 Relying upon the decision of this Court in the case of Dr.

Asim Kumar Bose v. Union of India and Others (1983) 1 SCC 345,

it is submitted by Shri Sunil Kumar that as observed and held by

this Court, the word ‘as’ must be interpreted in its ordinary sense

as ‘in the capacity of’ or be interpreted as the words like, ‘similar

to’, ‘of the same kind’, ‘in the same manner’ or ‘in the manner in

which’. It is submitted, therefore, the word ‘as’ used in the

advertisement should mean that the applicant shall have the

experience similar as to or like or of the same kind of Company

Secretary. It is submitted, therefore, the experience gained by the

appellant while working as Management Trainee and during

which the appellant was also performing the similar duties of a

Company Secretary, the said experience was required to be

counted for the purpose of calculation of experience of five years

as Company Secretary.

5.6 Making above submissions it is prayed to allow the present

appeal and set aside the order passed by the High Court as well

as the order of termination terminating the services of the

appellant as a Company Secretary.

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6. Present appeal is opposed by Shri Gourab Banerji learned

Senior Counsel appearing on behalf of the respondents. It is

submitted by Shri Banerji that in the advertisement, inviting the

applications for the post of Company Secretary, it was specifically

mentioned that the candidate must have an experience of five

years as a Company Secretary. It is submitted that the obvious

intention behind the advertisement was that the applicant must

have been appointed ‘as’ a Company Secretary in PSU/Company

of repute and functioned as such for five years ‘as’ a Company

Secretary, to be eligible for appointment.

6.1 It is further submitted that the purpose was that the person

should have held the position of a Company Secretary in a

PSU/Company of repute and discharged the statutory functions

as such i.e. should have held the position of responsibility. It is

submitted that in the present case and even from the particulars

given by the appellant while submitting the application and even

from the self­attested documents/experience certificates enclosed

with the application, it can be seen that the appellant was not

fulfilling the requisite eligibility criteria of having an experience of

five years ‘as’ a Company Secretary. Shri Banerji further submits

7 that, as it is evident, during the period when the appellant

claimed the experience as required, the appellant worked as

‘Management Trainee’ and even as ‘Assistant Company

Secretary’. It is submitted that experience as ‘Management

Trainee’ and or ‘Assistant Company Secretary’, cannot be

counted for the purpose of considering the eligibility criteria of

five years ‘as’ a Company Secretary.

6.2 Further Shri Banerji submitted that, therefore, when it was

found that the total post qualification experience of the appellant

‘as’ Company Secretary was less than five years against the

requirement of minimum five years’ experience and thereafter

when the services of the appellant were terminated on the ground

that at the time when the application was invited, she was not

fulfilling the eligibility criteria, her services have been rightly

terminated. It is submitted that the High Court in the impugned

judgment and order has considered in detail the experience of the

appellant while working in Delhi Stock Exchange Association

Limited; Bharat Bhushan Shares and Commodity Brokers

Limited; Utkal Investment Limited and thereafter considering the

8 material on record, has rightly refused to interfere with the order

of termination and has rightly rejected the petition.

6.3 Shri Banerji. Learned counsel for the respondent has

further submitted that so far as the reliance placed upon the

decision of this Court in the case of Dr. Asim Kumar Bose (supra)

relied upon by the learned Senior Counsel appearing on behalf of

the appellant is concerned, it is submitted by Shri Banerji that

on facts, the said decision shall not be applicable to the facts of

the case on hand. It is submitted that the said decision is

distinguishable on facts. It is submitted that, on interpretation of

the relevant rules, this Court held that the word ‘as’ in the

collocation of the words used “at least six years’ experience as

Associate Professor/Assistant Professor/reader” and the words

“at least five years’ experience as Reader/Assistant Professor”

must be interpreted in its ordinary sense as meaning teaching

experience gained “in the capacity of”. It is submitted that before

this Court the question was whether a Specialists’ Grade II in a

teaching hospital belonging to the Central Health Service was

eligible for appointment or promotion as a Professor or Associate

Professor of the concerned speciality? It is submitted therefore,

9 the said decision shall not be applicable to the facts of the case

on hand. Making above submissions, it is prayed to dismiss the

present appeal.

7. Heard the learned Senior Counsel appearing on behalf of the

respective parties at length. The question which is posed for

consideration before this Court is, whether in the facts and

circumstances of the case can it be said that the appellant

fulfilled the eligibility criteria mentioned in the advertisement of

having experience of five years ‘as’ a Company Secretary and/or,

can it be said that the period during which the appellant worked

as ‘Management Trainee’ and/or ‘Assistant Company Secretary’

be considered for treating the appellant having been appointed

‘as’ a Company Secretary so as to become eligible for the post of

Company Secretary which was advertised?

7.1 From the material on record, more particularly the

application submitted by the appellant and the supporting self­

attested documents and the certificates, it appears that according

to the appellant she was having seven years and three months

post qualification experience. The same is reproduced and

10 considered by the High Court in para 3 of the impugned

judgment and order.

7.2 Considering the above, it appears and even it can be seen

from the relevant appointment orders, and even as per the case

of the appellant that she was working as Assistant Company

Secretary for the period between June 2008 to May 2010 in Utkal

Investments Limited and that she was working as Management

Trainee in the Delhi Stock Exchange Association Limited for the

period between April 2005 to June 2006, and as the Management

Trainee in ONGC for the period between May 2003 to June 2004.

Her appointment as Management Trainee cannot be equated

and/or considered as appointment ‘as’ a Company Secretary.

7.3 The word ‘as’ used in the advertisement should be given a

literal meaning. The respondent is the author of the

advertisement and they are the best person to consider what they

meant by using the word ‘as’. It is the specific case on behalf of

the respondents that the intention behind the advertisement was

that the applicant must have been appointed ‘as’ a Company

Secretary in PSU/Company of repute and functioned as such for

five years to be eligible for appointment. According to the

11 respondent, the purpose was that the person should have held

the position of a Company Secretary in a PSU/Company of

repute and discharged the statutory functions as such i.e. should

have held the position of responsibility. Therefore, when the word

‘as’ is specifically used, the same is to be considered strictly and

therefore the experience of the appellant, while working as a

‘Management Trainee’ cannot be considered as an experience of

working ‘as’ a Company Secretary and/or it cannot be said that

she was appointed ‘as’ a Company Secretary. If the period during

which the appellant had worked as a ‘Management Trainee’ is

excluded, in that case, admittedly, the appellant would not be

fulfilling the requisite eligibility criteria of having been appointed

‘as’ a Company Secretary in a PSU/Company of repute. It cannot

be said that the appellant had, while working as a ‘Management

Trainee’, functioned ‘as’ a ‘Company Secretary.

7.4 If submission on behalf of the appellant is accepted that by

performing duties as ‘Management Trainee’ she was also

performing some duties as ‘Company Secretary’ and therefore she

can be said to have fulfilled the eligibility criteria of having been

appointed ‘as’ a Company Secretary, in that case, it would be

12 against the intent. If the intention was such, in that case, the

wording in the advertisement should have been that the

candidate should have the experience of the similar nature of

work as “Company Secretary”. In the advertisement, it has been

specifically and categorically stated that a candidate shall have

post qualification experience of five years ‘as’ Company Secretary.

The word used “experience as Company Secretary” has to be

given meaning that a candidate must have been appointed ‘as’ a

Company Secretary and shall have actually worked ‘as’ a

Company Secretary for five years. Giving other meaning would be

changing the eligibility criteria as mentioned in the

advertisement. As observed hereinabove, the appellant has no

experience of five years ‘as’ Company Secretary, as she was

appointed and/or worked as ‘Management Trainee’ or ‘Assistant

Company Secretary’.

7.5 Now, so far as the reliance placed upon the decision of this

Court in Dr. Asim Kumar Bose (supra) by learned Senior Counsel

appearing on behalf of the appellant is concerned, on considering

the facts of the case before this Court, we are of the opinion that

the said decision shall not be applicable to the facts of the case

13 on hand. The facts before this Court in the aforesaid decision are

distinguishable. In the aforesaid decision, the appellant was

appointed to the Specialists’ Grade in substantive capacity as

Radiologist in Irwin Hospital, Delhi which was a teaching

hospital. He was considered as an Associate Professor of

Radiology (ex officio) both by the Delhi University as well as by

the Maulana Azad Medical College, Delhi to which Irwin Hospital

was affiliated. He was not considered for the regular appointment

to the post of Associate Professor of Radiotherapy in that college

on the ground that his teaching experience as ex officio Associate

Professor was not to be counted. Rule 8(2­A) of the Central

Health Service Rules was under consideration by this Court

which provided that a candidate shall have the teaching

experience as an Associate Professor. The appellant was having

the experience as an Associate Professor of Radiology (Ex­officio)

and therefore it was the case on behalf of the Union of India that

he was not having the teaching experience as Associate Professor

as he worked as an Associate Professor of Radiology (ex­officio).

To that, this Court observed and held that the provisions

contained in Rule 8(2­A) and paragraph 3 of Annexure I to the

Second Schedule of the Central Health Service Rules must be

14 interpreted in a broad and liberal sense so as to avoid any

injustice to person in specialists’ Grade like the appellant. This

Court observed that the Rules nowhere provide that the teaching

experience gained by a Specialist in a teaching hospital as an

Associate Professor (ex officio) shall not be counted towards the

requisite teaching experience. This Court further observed that

there is hardly any difference so far as the teaching experience is

concerned whether it is acquired on regular appointment or as

specialist in a teaching hospital with the ex officio designation. It

was thereafter further observed that the word ‘as’ in the

collocation of the words used “at least six years’ experience as

Associate Professor/Assistant Professor/Reader” and of the

words “at least five years’ experience as Reader/Assistant

Professor” in the relevant Rules must be interpreted in its

ordinary sense as meaning teaching experience gained “in the

capacity of”.

7.6 In the present case, the word ‘as’ and the words ‘experience

as Company Secretary’ used in the advertisement are very clear

and as observed hereinabove it means the candidate ought to be

appointed and worked as such ‘as’ a Company Secretary.

15 Therefore, the aforesaid decision shall not be applicable to the

facts of the case on hand.

8. In view of the above and for the reasons stated above, as

appellant did not fulfil the eligibility criteria of having five years

post qualification experience ‘as’ Company Secretary as on

30.11.2013, the services of the appellant have rightly been

terminated. We are in complete agreement with the view taken by

the High Court.

9. In view of the reasons stated above, the present appeal fails

and is accordingly dismissed. No costs.

………………..............................J. (L. NAGESWARA RAO)

……………….............................J. ( M.R. SHAH ) New Delhi, February 05, 2019.

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