FOOD CORPORATION OF INDIA versus RIMJHIM on 9 April 2019

[2019] 6 S.C.R. 897

FOOD CORPORATION OF INDIA

v.

RIMJHIM

(Civil Appeal No. 3600 of 2019)

APRIL 09, 2019

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Service Law – Appointment – Appellant invited applicationsfor the post of Assistant Grade-II (Hindi) by publishingadvertisement – Respondent applied – Short-listed – However, shedid not receive the final letter of appointment – Writ petition filedby the respondent – Dismissed – Division Bench allowed the appeal– Plea of appellant that the respondent was not finally selected asshe did not produce the certificate of one year’s experience oftranslation from English to Hindi and vice-versa – Held: In theadvertisement there was no such requirement – What was providedin the advertisement was that a candidate must have one year’sexperience of translation from English to Hindi and vice-versa alongwith the other qualifications – Advertisement did not provide that acandidate shall produce the certificate of experience along withthe application – Division Bench rightly observed that non-production of the certificate along with the application cannot besaid to be fatal to the case of the respondent and on that groundshe could not have been denied the appointment, if otherwise foundmeritorious – Management at the time of verification of thedocuments, did not thought it fit to call upon the respondent toproduce any additional documentary evidence in support of herexperience – If the management would have called for suchadditional documentary evidence, the respondent would haveproduced the certificates, which she subsequently did produce beforethe High Court – Appellant has not doubted the certificates dated.14.01.2015 and 18.07.2016 issued by the erstwhile employer ofthe respondent – Division Bench rightly held, considering theaforesaid two certificates, that the respondent was having one year’sexperience of translation from English to Hindi and vice-versa andtherefore fulfilled all the requisite essential requirements/qualifications and therefore was required to be considered for

897

A

B

CDE

FG

H

[2019] 6 S.C.R.

Aappointment on merits – Appellant to consider the case of therespondent for appointment on merits, if all other conditions standsatisfied.

Dismissing the appeal, the Court

HELD: 1.1 The FCI have not doubted the certificates datedB14.01.2015 and 18.07.2016 issued by the erstwhile employer ofthe original writ petitioner. In the advertisement there was norequirement to produce the certificate of one year’s experiencealong with the application. What was provided in theadvertisement is that a candidate must have one year’s experienceCof translation from English to Hindi and vice-versa along withthe other qualifications. The advertisement does not providespecifically and/or provide that a candidate shall produce thecertificate of experience along with the application. Therefore,the Division Bench of the High Court has rightly observed thatnon-production of one year’s experience certificate along withDthe application cannot be said to be fatal to the case of the originalwrit petitioner and on that ground the original writ petitioner couldnot have been denied the appointment, if otherwise she is foundto be meritorious. [Paras 8, 9][905-C-G]

1.2 At the time of verification of the documents, the originalEwrit petitioner was not informed/told that the relieving-cum-experience letter dated 27.08.2014 is not sufficient to establishthe essential requirement of one year’s experience. The originalwrit petitioner was also not told/informed at the time of verificationof documents on 18.01.2016 that certificate of one year’sFexperience is lacking. Clause 33 of the advertisement, which wasalso considered by the Division Bench of the High Court, providesthat the management reserves the right to call for any additionaldocumentary evidence in support of educational qualification &experience of the applicant. The management at the time ofverification of the documents, did not thought it fit to call uponGthe applicant to produce any additional documentary evidence insupport of her experience. The management could have calledfor any additional documentary evidence in support of experienceof the applicant. If the management would have called for theadditional documentary evidence in support of experience of theH

applicant, in that case, the original writ petitioner would haveproduced the certificates, which were subsequently producedbefore the High Court. The FCI has not doubted the certificatesdated 14.01.2015 and 18.07.2016 issued by the erstwhile employerof the original writ petitioner. Therefore, the Division Bench ofthe High Court has rightly observed and held considering theaforesaid two certificates that the original writ petitioner washaving one year’s experience of translation from English to Hindiand vice-versa and therefore fulfilled all the requisite essentialrequirements/qualifications and therefore she was required tobe considered for appointment on merits. [Paras 10 and10.1][906-B-G]

1.3 The Division Bench has rightly set aside the action ofthe FCI in rejecting the case of the original writ petitioner andrightly directed the FCI to consider the case of the original writpetitioner for appointment on merits, if all other conditions standsatisfied. [Para 12][909-D-E]

Charles K. Skaria v. Dr. C. Mathew (1980) 2 SCC752 : [1980] 3 SCR 71 ; Dolly Chhanda v. Chairman, Jee and Others (2005) 9 SCC 779 : [2004] 5 Suppl.SCR 79 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.3600 of2019.

From the Judgment and Order dated 03.08.2018 of the High Courtof Delhi at New Delhi in LPA No. 383 of 2018.

N. K. Kaul, Sr. Adv., Ajit Pudussery, K. Vijay Kumar, Ajeet SinghVerma, Chanan Parwani, Ms. Divya Kapur, Ram Ramachandran, Advs.for the Appellant.

R. K. Raizada, Sr. Adv., Santosh Kumar, Ms. Ankita Chaudhary,Ms. Archana Pathak Dave, Advs. for the Respondent.

A

B

C

D

E

F

G

H

AThe Judgment of the Court was delivered by

M. R. SHAH, J. 1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 03.08.2018 passed by the Division Bench of the HighCourt of Delhi at New Delhi in L.P.A. No. 383 of 2018, by which theBDivision Bench has allowed the said appeal preferred by the respondentherein – the original writ petitioner and has quashed and set aside thejudgment and order passed by the learned Single Judge of the HighCourt, dismissing the writ petition preferred by the original writ petitionerand consequently quashed and set aside the action of the Food CorporationCof India (hereinafter referred to as the ‘FCI’) rejecting the case of theoriginal writ petitioner for appointment on the post of Assistant Grade-II(Hindi), the original respondent – the appellant herein has preferredthe present appeal.

3. The facts leading to the present appeal in nutshell are as under:DThat the appellant herein – the original respondent – FCI invitedapplications for the post of Assistant Grade-II (Hindi) by publishing anadvertisement on 14.02.2015. The original writ petitioner applied for thesaid post on 16.03.2015. Her application form was accepted and shewas issued an admitted card for the written test to be conducted by theEFCI. The written test was held on 4.10.2015. The original writ petitionerwas short-listed. She was ranked sixth in the merit list. A call letter wasissued to her on 31.12.2015. She was asked to report at the Zonal officeof the FCI and produce her original documents, which were retained bythe FCI and after verification, the same were returned. However, shedid not receive the final letter of appointment. The list of selectedFcandidates was published on the website of the FCI on 2.5.2016, inwhich her name did not figure. Therefore, a representation was submittedby her on 6.5.2016, which was not considered favourably. Therefore,the original writ petitioner approached the High Court by way of a writpetition. Before the learned Single Judge, it was the case on behalf ofGthe FCI that the original writ petitioner was not finally selected as shedid not produce any experience certificate to show that she had oneyear’s experience of translation from English to Hindi and vice-versa.It should be noted that before the learned Single Judge, the original writpetitioner produced the certificates issued by her erstwhile employer insupport of her case that she had an experience of translation from EnglishHto Hindi and vice-versa.

3.1 The learned Single Judge dismissed the writ petition holdingthat since the original writ petitioner did not have requisite experience ofone year for translation work from English to Hindi and vice-versa, theFCI was justified in denying her employment.

4. Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge dismissing the writ petition, the originalwrit petitioner preferred Letters Patent Appeal before the Division Benchof the High Court. By the impugned judgment and order, the DivisionBench has allowed the appeal preferred by the original writ petitionerand has quashed and set aside the judgment and order passed by thelearned Single Judge dismissing the writ petition and consequently hasset aside the action of the FCI rejecting the case of the original writpetitioner. While passing the impugned judgment and order, the DivisionBench has observed and held that considering the certificates producedby the original writ petitioner dated 14.01.2015 and 18.07.2016, the originalwrit petitioner can be said to have the requisite experience of translationfrom English to Hindi and vice-versa, and considering the fact that theoriginal writ petitioner ranked 6[th] in the merit list, therefore otherwisewas found to be meritorious, the Division Bench of the High Court heldthat FCI was not justified in denying the appointment to the original writpetitioner.

5. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court, the FCI haspreferred the present appeal.

5.1 Shri N.K. Kaul, learned Senior Advocate has appeared onbehalf of the FCI and Shri R.K. Raizada, learned Senior Advocate hasappeared on behalf of the respondent herein – the original writ petitioner.

5.2 Shri N.K. Kaul, learned senior advocate appearing on behalfof the appellant – FCI has vehemently submitted that the Division Benchof the High Court has materially erred in setting aside the action of theFCI in rejecting the case of the original writ petitioner.

5.3 It is vehemently submitted by Shri N.K. Kaul, learned SeniorAdvocate appearing on behalf of the appellant – FCI that it is an admittedposition that as per the advertisement, one of the essential requirementswas that the candidate must have one year’s experience of translationfrom English to Hindi and vice-versa. It is submitted that therefore acandidate was required to submit the one year’s experience certificate/

A

B

C

D

E

F

G

H

Aproof of translation from English to Hindi and vice-versa at the time ofsubmitting the application. It is submitted that admittedly the originalwrit petitioner did not produce any certificate of her having one year’sexperience of translation from English to Hindi and vice-versa.

5.4 It is vehemently submitted by Shri N.K. Kaul, learned SeniorBAdvocate appearing on behalf of the appellant – FCI that certificatewhich was produced by the original writ petitioner dated 27.08.2014,which was produced along with the application, by no stretch ofimagination, can be said to be a certificate of one year’s experience oftranslation from English to Hindi and vice-versa, as required. It issubmitted that what was produced by the original writ petitioner was aCrelieving-cum-experience letter. It is submitted that therefore the FCIwas justified in not appointing the original writ petitioner as the originalwrit petitioner did not produce any experience certificate to fulfil theeligibility criteria. Relying upon clauses 28, 32, 33, 35 and 37 of theadvertisement, it is submitted by Shri Kaul, learned Senior Advocate Dappearing on behalf of the FCI that the FCI was justified in not appointingthe original writ petitioner.

5.5 It is further submitted by Shri N.K. Kaul, learned SeniorAdvocate appearing on behalf of the appellant – FCI that the DivisionBench of the High Court has materially erred in considering theEcertificates produced subsequently, namely, certificates dated 14.01.2015and 18.07.2016. It is submitted that as such the experience certificatewas required to be produced at the time of submitting the applicationand/or at least at the time of verification of documents. It is submittedthat the certificates dated 14.01.2015 and 18.07.2016 upon which thereliance has been placed by the original writ petitioner were neitherFproduced by the original writ petitioner along with the application formnor even at the time of verification of the documents. It is submittedthat therefore the Division Bench of the High Court has materially erredin considering those certificates while holding that the original writpetitioner was having one year’s experience of translation from EnglishGto Hindi and vice-versa, as required as per the advertisement.

5.6 It is vehemently submitted by Shri N.K. Kaul, learned SeniorAdvocate appearing on behalf of the appellant – FCI that if the impugnedjudgment and order passed by the Division Bench of the High Court isaccepted, in that case, there shall not be any sanctity of the requirementHas per the advertisement. It is submitted that if the candidate is permitted to produce the relevant experience certificate subsequently and that tooafter the selection process is over, in that case, there shall not be anysanctity of the relevant clauses of the advertisement and/or the procedurewhich is required to be followed as per the advertisement and there shallnot be any end to the selection process.

5.7 Making the above submissions, it is prayed to allow the presentappeal and quash and set aside the impugned judgment and order passedby the Division Bench of the High Court.

6. The present appeal is opposed by Shri R.K. Raizada, learnedSenior Advocate appearing on behalf of the original writ petitioner.

6.1 It is vehemently submitted by the learned Counsel appearingon behalf of the original writ petitioner that in the facts and circumstancesof the case and considering the fact that the original writ petitioner was,in fact, having the requisite experience of translation from English toHindi and vice-versa, and considering the fact that on merits even theoriginal writ petitioner ranked 6[th] in the merit list, the Division Bench ofthe High Court has not committed any error in quashing and settingaside the action of the FCI in rejecting the case of the original writpetitioner.

6.2 It is vehemently submitted by the learned Counsel appearingon behalf of the original writ petitioner that as rightly observed by theDivision Bench, at the most, non-production of the requisite experiencecertificate can be said to be mere irregular which shall not defeat thecase of a meritorious candidate. It is submitted that as such in thepresent case in the advertisement it was not specifically mentioned thata candidate has to produce the experience certificate along with theapplication. It is submitted that the advertisement speaks about theessential eligibility criteria. It is submitted that therefore when in theadvertisement it was not specifically mentioned that a candidate has toproduce the certificate/experience certificate along with the application,non-production of the experience certificate along with the applicationcannot be said to be fatal so as to deny the legitimate right of the originalwrit petitioner to consider her case for appointment on merits.

6.3 It is submitted by the learned Counsel appearing on behalf ofthe original writ petitioner that as such in the counter affidavit filed bythe FCI before the High Court, the FCI did not specifically disputed and/or doubted the certificates dated 14.01.2015 and 18.07.2016.

A

B

C

D

EF

G

H

A6.4 It is further submitted by the learned Counsel appearing onbehalf of the original writ petitioner that as rightly observed by the DivisionBench of the High Court, when the original writ petitioner appearedbefore the authority for verification of the documents, if the FCI wouldhave any doubt about the original writ petitioner having not fulfilled anyeligibility criteria, more particularly one year’s experience, consideringBclause 33 of the advertisement, the FCI/authority could have called forany additional documentary evidence in support of educational qualificationand experience of the applicant. It is submitted that therefore in thefacts and circumstances of the case and after having been satisfied thatthe original writ petitioner was fulfilling all the eligibility criteria includingCone year’s experience of translation from English to Hindi and vice-versa and having found that the original writ petitioner ranked 6[th] in themerit list and therefore otherwise found to be meritorious, the DivisionBench of the High Court has rightly set aside the action of the FCI inrejecting the case of the original writ petitioner.

D6.5 Making the above submissions, it is prayed to dismiss thepresent appeal.7. We have heard learned Senior Advocates appearing on behalfof the respective parties at length.

7.1 At the outset, it is required to be noted that the original writEpetitioner was denied the appointment on the post of Assistant Grade-II(Hindi) on the ground that the original writ petitioner did not produce thecertificate of one year’s experience of translation from English to Hindiand vice-versa along with the application and/or even at the time ofverification of documents. According to the FCI, one year’s experienceFof translation from English to Hindi and vice-versa was essential tobecome a candidate eligible for the post in question. It is required to benoted that the aforesaid stand was taken by the FCI for the first timebefore the learned Single Judge in a writ petition filed by the original writpetitioner. Therefore, the original writ petitioner produced the certificatesdated 14.01.2015 and 18.07.2016 issued by her erstwhile employer, inGsupport of her case that she was having one year’s experience oftranslation from English to Hindi and vice-versa.

8. The learned Single Judge dismissed the writ petition solelyrelying upon and/or considering the document produced by the originalwrit petitioner as relieving-cum-experience letter dated 27.08.2014 andH

opined that from the said letter, it cannot be said that the original writpetitioner had one year’s experience of translation from English to Hindiand vice-versa, which was the essential requirement to become acandidate eligible. However, the learned Single Judge did not considerthe certificates dated 14.01.2015 and 18.07.2016 issued by the erstwhileemployer of the original writ petitioner. If the aforesaid two certificatesare considered, in that case, it can safely be said that the original writpetitioner was having one year’s experience of translation from Englishto Hindi and vice-versa and therefore fulfilled all the essentialrequirements/eligibility criteria. As observed hereinabove, and it can beseen from the counter affidavit filed on behalf of the FCI, filed beforethe High Court, the FCI have not doubted the aforesaid two certificates.Their only contention seems to be that as the original writ petitioner didnot produce the certificate of one year’s experience of translation fromEnglish to Hindi and vice-versa either along with the application or evenat the time of verification of documents, the aforesaid certificates cannotbe considered at all and therefore in absence of those certificates and/orany certificate of having one year’s experience in translation from Englishto Hindi and vice-versa, which was the essential requirement, the originalwrit petitioner cannot be said to have fulfilled the eligibility criteria/essentialrequirement of having one year’s experience.

9. So far as the case on behalf of the FCI that as the original writpetitioner did not produce the certificate of one year’s experience alongwith the application is concerned, it is required to be noted that in theadvertisement there was no such requirement. What is provided in theadvertisement is that a candidate must have one year’s experience oftranslation from English to Hindi and vice-versa along with the otherqualifications. The advertisement does not provide specifically and/orprovide that a candidate shall produce the certificate of experience alongwith the application. Therefore, the Division Bench of the High Courthas rightly observed that non-production of one year’s experiencecertificate along with the application cannot be said to be fatal to thecase of the original writ petitioner and on that ground the original writpetitioner could not have been denied the appointment, if otherwise sheis found to be meritorious. We are in complete agreement with the viewtaken by the Division Bench of the High Court.

10. Now so far as the submission on behalf of the FCI that theoriginal writ petitioner did not produce the certificate of one year’s AB

C

D

E

F

G

H

Aexperience even at the time of verification of documents and what wasproduced was the relieving-cum-experience letter dated 27.08.2014 alongwith the application and on the basis of which it cannot be said that theoriginal 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 datedB27.08.2014 is not sufficient to establish the essential requirement of oneyear’s experience. The original writ petitioner was also not told/informedat the time of verification of documents on 18.01.2016 that certificate ofone year’s experience is lacking.

10.1 Clause 33 of the advertisement, which is also considered byCthe Division Bench of the High Court, provides that the managementreserves the right to call for any additional documentary evidence insupport of educational qualification & experience of the applicant. Asfound from the record and even as observed by the Division Bench, themanagement at the time of verification of the documents, did not thoughtDit fit to call upon the applicant to produce any additional documentaryevidence in support of her experience. The management could havecalled for any additional documentary evidence in support of experienceof the applicant. If the management would have called for the additionaldocumentary evidence in support of experience of the applicant, in thatcase, the original writ petitioner would have produced the certificates,Ewhich are subsequently produced before the High Court. At the cost ofthe repetition, it is to be noted that the FCI has not doubted the certificatesdated 14.01.2015 and 18.07.2016 issued by the erstwhile employer ofthe original writ petitioner. Therefore, the Division Bench of the HighCourt has rightly observed and held considering the aforesaid twoFcertificates that the original writ petitioner was having one year’sexperience of translation from English to Hindi and vice-versa andtherefore fulfilled all the requisite essential requirements/qualificationsand therefore she was required to be considered for appointment onmerits.

G11. Now so far as the submission on behalf of the FCI that acandidate must and/or ought to have produced the experience certificatealong with the application is concerned, at this stage, a decision of thisCourt in the case of Charles K. Skaria v. Dr. C. Mathew (1980) 2SCC 752 and the subsequent decision of this Court in the case of DollyChhanda v. Chairman, Jee and others (2005) 9 SCC 779 are requiredH

to be referred to. In the case of Charles K. Skaria (supra), this Courthad an occasion to consider the distinction between the essentialrequirements and the proof/mode of proof. In the aforesaid case, thisCourt had an occasion to consider the distinction between a fact and itsproof. In the aforesaid case before this Court, a candidate/student wasentitled to extra 10% marks for holders of a diploma and the diplomamust be obtained on or before the last date of the application, not later.In the aforesaid case, a candidate secured diploma before the final dateof application, but did not produce the evidence of diploma along withthe application. Therefore, he was not allowed extra 10% marks andtherefore denied the admission. Dealing with such a situation, this Courtobserved and held that what was essential requirement was that acandidate must have obtained the diploma on or before the last date ofapplication but not later, and that is the primary requirement and to submitthe proof that the diploma is obtained on or before a particular date asper the essential requirement is secondary. This Court specificallyobserved and held that “what is essential is the possession of a diplomabefore the given date; what is ancillary is the safe mode of proof of thequalification”. This Court specifically observed and held that “to confusebetween a fact and its proof is blurred perspicacity”. This Court furtherobserved and held that “to make mandatory the date of acquiring theadditional qualification before the last date for application makes sense.But if it is unshakeably shown that the qualification has been acquiredbefore the relevant date, to invalidate the merit factor because proof,though indubitable, was adduced a few days later but before the selectionor in a manner not mentioned in the prospectus, but still above board, isto make procedure not the handmaid but the mistress and form not assubservient to substance but as superior to the essence. While observingand holding so, in paragraphs 20 & 24, this Court observed and held asunder:

“20. There is nothing unreasonable or arbitrary in adding 10 marksfor holders of a diploma. But to earn these extra 10 marks, thediploma must be obtained at least on or before the last date forapplication, not later. Proof of having obtained a diploma is differentfrom the factum of having got it. Has the candidate, in fact, secureda diploma before the final date of application for admission to thedegree course? That is the primary question. It is prudent toproduce evidence of the diploma along with the application, but AB

CDEF

G

H

A

B

C

D

E

F

G

H

AB

CDEF

G

H

A

B

C

D

E

F

G

H

that is secondary. Relaxation of the date on the first is illegal, notso on the second. Academic excellence, through a diploma forwhich extra mark is granted, cannot be denuded because proof isproduced only later, yet before the date of actual selection. Theemphasis is on the diploma; the proof thereof subserves the factumof possession of the diploma and is not an independent factor.....Mode of proof is geared to the goal of the qualification in question.It is subversive of sound interpretation and realistic decoding ofthe prescription to telescope the two and make both mandatory inpoint of time. What is essential is the possession of a diplomabefore the given date; what is ancillary is the safe mode of proofof the qualification. To confuse between a fact and its proof isblurred perspicacity. To make mandatory the date of acquiringthe additional qualification before the last date for application makessense. But if it is unshakeably shown that the qualification hasbeen acquired before the relevant date, as is the case here, toinvalidate this merit factor because proof, though indubitable, wasadduced a few days later but before the selection or in a mannernot mentioned in the prospectus, but still above-board, is to makeprocedure not the handmaid but the mistress and form not assubservient to substance but as superior to the essence.

xxx

xxx

xxx

24. It is notorious that this formalistic, ritualistic, approach isunrealistic and is unwittingly traumatic, unjust and subversive ofthe purpose of the exercise. This way of viewing problemsdehumanises the administrative, judicial and even legislativeprocesses in the wider perspective of law for man and not manfor law. Much of hardship and harassment in administration flowsfrom over-emphasis on the external rather than the essential. Wethink the government and the selection committee rightly treatedas directory (not mandatory) the mode of proving the holding ofdiplomas and as mandatory the actual possession of the diploma.In actual life, we know how exasperatingly dilatory it is to getcopies of degrees, decrees and deeds, not to speak of otherauthenticated documents like mark-lists from universities, why,even bail orders from courts and Government Orders from publicoffices. This frustrating delay was by-passed by the StateGovernment in the present case by two steps. Government informed the selection committee that even if they got proof ofmarks only after the last date for applications but before the datefor selections they could be taken note of and secondly theRegistrars of the Universities informed officially which of thecandidates had passed in the diploma course. The selectioncommittee did not violate any mandatory rule nor act arbitrarilyby accepting and acting upon these steps. Had there been anythingdubious, shady or unfair about the procedure or any mala fidemove in the official exercises we would never have tolerateddeviations. But a prospectus is not scripture and common sense isnot inimical to interpreting and applying the guide-lines therein.Once this position is plain the addition of special marks was basicjustice to proficiency measured by marks.”

11.1 A similar view is taken by this Court subsequently in thecase of Dolly Chhanda (supra), relying upon the aforesaid decision ofthis Court in the case of Charles K. Skaria (supra).

12. Applying the law laid down by this Court in the aforesaid twocases to the facts and circumstances of the case on hand, we are of theopinion that the Division Bench has rightly set aside the action of theFCI in rejecting the case of the original writ petitioner and has rightlydirected the FCI to consider the case of the original writ petitioner forappointment on merits, if all other conditions stand satisfied.

13. In view of the above and for the reasons stated above, thepresent appeal fails and the same deserves to be dismissed and isaccordingly dismissed. However, in the facts and circumstances of thecase, there shall be no order as to costs.