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2024 DIGILAW 652 (ALL)

Manoj Kumar Srivastava v. Union of India

2024-03-01

ASHWANI KUMAR MISHRA, SYED QAMAR HASAN RIZVI

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JUDGMENT : ASHWANI KUMAR MISHRA, J. 1. Heard Sri Gajendra Pratap, Sri V.K. Singh, learned Senior counsels for the appellants and Sri Anurag Khanna, learned Senior Counsel assisted by Sri Pranjal Mehrotra, learned counsel for the respondents. 2. Delay in filing the Special Appeal Defective Nos. 954 of 2023 and 957 of 2023 is explained to the satisfaction of the Court. Delay is, accordingly, condoned. 3. This intra-court appeal is directed against judgment and order dated 15.9.2023, passed by learned Single Judge in a batch of writ petitions with leading Writ Petition No. 72605 2011 (Subodh Chandra Srivastava vs. Union of India and Others). For the reasons contained in the judgment of learned Single the writ petitions filed by the petitioners have been dismissed. Thus aggrieved, the petitioners have preferred the instant appeals. 4. An advertisement came to be issued by Food Corporation of India (hereinafter referred to as ‘the Corporation’) on 7.1.2011, inviting applications for appointment to various posts including thirteen posts of Assistant General Manager (Legal). The number of posts were subsequently increased to seventeen. Applications were to be submitted online on the official website of the Corporation. The qualification for appointment to the post stood specified, as under: “(i) Degree in Law from recognized university. (ii) At least 5 years experience in legal work in Central/State Government or a Public/Private Sector Undertaking or three years practice at Bar. Practice at Bar: Apart from providing the certificate from the concerned Bar Council/Association, the candidate shall be required to certify with appropriate evidence that she/he has represented in at least 5 matters in a year while practising at the Bar.” 5. The appellants cleared written test on 3.4.2011 and were called for interview on 13.5.2011. Name of none of the petitioner-appellants, however, figured in the final list of selected candidates published by the Corporation on 10.10.2011. In response to a query made under the RTI Act the Corporation disclosed that the petitioner in the leading case had secured 83 marks out of 120. Petitioner-appellants asserted that they have secured marks higher than the cut-off marks obtained by the last selected candidate and, therefore, the respondents have acted arbitrarily in discarding their candidature. 6. In the counter affidavit filed before the learned Single Judge the Corporation took the plea that the petitioner-appellants did not meet the eligibility criteria specified in the advertisement and, consequently, their candidature was not accepted. 6. In the counter affidavit filed before the learned Single Judge the Corporation took the plea that the petitioner-appellants did not meet the eligibility criteria specified in the advertisement and, consequently, their candidature was not accepted. The specific case of the Corporation was that the petitioner-appellants had not produced appropriate evidence that he/she has represented in atleast 5 matters in a year while practising at the Bar. Learned Single Judge has noticed Para 9 of the counter affidavit filed by the Corporation which, for the sake of convenience, is reproduced hereinafter: “Para-9: That the Para 10 of the writ petition is wholly misconceived, incorrect hence denied. It is humbly submitted that it has been specifically and clearly laid down in the Recruitment Advertisement. Under the column "General Information and instruction" that the 'Candidates should satisfy themselves that they fulfill the required qualification, experience, age etc, before applying for the post. In case it is found that the information furnished by a candidate is defective in any manner or has deliberately suppressed information, the candidature will be summarily rejected as and when it comes to the notice of the Management. The candidates are advised to satisfy themselves fully about the correctness of the information furnished, if found ineligible at any stage the candidature would be rejected. Thus the onus of proving one's eligibility vested entirely on the candidate. The selection process for post of AGM (Legal) comprising of a written test and interview was strictly conducted in accordance with the said conditions which was released in advertisement for the post dated 8 to 14th January, 2011 and has been followed by the Corporation for recruitments to post of AGM (Legal) held in 2011. It is specifically emphasized that the provisions of the advertisement/eligibility criteria have been consistently and uniformly applied and any discrepancies noticed at any stage and at any point in time of the recruitment process were rectified to ensure acceptance/rejection of candidature in accordance with prescribed provisions/criteria. It has also been specifically mentioned in the Call letter for Personal Interview "Please note that your candidature for the above post is provisional. If, at any stage, it is found that you do not fulfill any of the conditions laid down in the advertisement for the examination your candidature will be cancelled and no appeal against any such cancellation will be entertained at any stage. If, at any stage, it is found that you do not fulfill any of the conditions laid down in the advertisement for the examination your candidature will be cancelled and no appeal against any such cancellation will be entertained at any stage. The Petitioner Shri Subodh Chandra Srivastava who had applied for the post of Assistant General Manager (Legal) (Post Code: 07) did not provide appropriate evidences that he has represented in at least 5 matters in a year while practicing at the Bar and hence he had not completed one of the prerequisite requirement which makes him ineligible for the applied post.” 7. Further case of the Corporation stated, in Para 8, is also reproduced hereinafter: “8. That the petitioner filled his Application Form for the post of AGM (Legal) the petitioner however, did not produce appropriate evidence that he has appeared in atleast five matters in a year while practising at the bar as stipulated in the advertisement which is an essential criteria. The petitioner did not qualify the eligibility criteria which have been consistently and uniformly applied in all the cases including the present case. The petitioner himself committed error and mistake. He cannot take benefit out of his own wrong and blame the FCI management. The Petitioner cannot compel the FCI management to relax the eligibility criteria mentioned in the advertisement. All averments relating to allegation of bias, discrimination and arbitrariness are wholly wrong, incorrect, misconceived and vehemently denied. It is humbly submitted that the respondents committed no illegality or irregularity while finalizing the result of the post of AGM Legal. It is specifically emphasized that the provisions of the advertisement/eligibility criteria have been consistently and uniformly applied in all cases.” 8. In reply, the petitioner-appellants submitted in the rejoinder affidavit that all of them had appeared before the Board for the document verification and interview and, therefore, necessary formalities at their level was undertaken. 9. The writ Court was also informed that a High Level Committee had examined the appropriate evidence produced by all candidates with regard to their claim that they had represented in atleast 5 matters in a year while practising at the bar. 9. The writ Court was also informed that a High Level Committee had examined the appropriate evidence produced by all candidates with regard to their claim that they had represented in atleast 5 matters in a year while practising at the bar. The committee was of the opinion that copies of cause list or order-sheet or other such evidence obtained from court, either physically or from website, may be accepted as evidence in support of the claim that the candidate has represented in atleast 5 matters in a year while practising at the bar. Though the petitioners submitted a questionnaire regarding filing of vakalatnama in different cases but the evidence submitted alongwith application was not found appropriate by the High Level Committee of the Corporation. According to the respondents, none of the petitioners, therefore, could demonstrate on the basis of evidence produced that he had represented in atleast 5 matters in a year while practising at the bar. Consequently, all the appellants were treated ineligible. 10. Learned Single Judge has also taken note of the fact that one of the candidate namely, Gainilung Parmei shown at serial no. 7 had also applied for appointment to the post but was found ineligible for the same reason. Writ (C) No. 2537 of 2012 filed before the Delhi High Court by him was dismissed on 15.7.2013. In intra-court appeal, the Division Bench examined the issue and arrived at following conclusions: “..........However, we find that these judgments do not advance the case of the appellant since in the present case the admitted position is that the appellant had not furnished the requisite proof of his appearances in the court matters which was one of the essential requirements for appointment to the post of Assistant General Manager (Legal). Appellant having been permitted to take written exam and his being interviewed will also not make any difference since the appellant himself is not disputing now, contrary to the stand taken in the writ petition that he had furnished entire proof, that he had not furnished full proof of experience at bar and a so that it was made clear to him at all stages including in the interview call letter that if anything prescribed in the advertisement would be found missing at any stage his candidature would be cancelled.” 11. The Division Bench judgment of Delhi High Court was assailed before the Supreme Court in special leave petition which got dismissed on 29.8.2014. Learned Single Judge while deciding the writ has noticed that the recruitment was concluded in the year 2011 itself and sufficient period had expired since then. 12. Before the learned Single Judge, it was also urged on behalf of the appellants that the decision of committee requiring cause list copies or order-sheets and other such evidence to be obtained from the Court, either physically or from website, as being appropriate evidence, amounted to change in the rules of the games after the game had begun. Learned Single Judge, however, rejected such contention. 13. The arguments urged before learned Single Judge have been substantially adopted on behalf of the appellants in the present bunch of appeals. An additional ground has been urged by Sri Gajendra Pratap, learned Senior counsel that the respondents acted arbitrarily, inasmuch as other candidates were granted opportunity later to produce evidence in support of their plea of representing in atleast 5 matters in a year while practising at the bar while such opportunity was denied to the appellants. Reference in this regard was made to the candidate at serial no. 21 i.e. Sri Manish Mishra. 14. During the course of hearing our attention was invited to Para 4(d) of the counter affidavit filed by the Corporation before the writ Court as per which the applicant Manish Mishra (serial no. 21) bearing application no. 108697 contained a remark ‘not appropriate evidence’ however, in the ultimate decision Sri Manish Mishra has been selected and in the remarks column his status is shown as ‘complied’. Upon being confronted with the aforesaid submission, Sri Anurag Khanna, learned Senior Counsel argued that the assertion made in Para 4(d) of the counter affidavit filed by the Corporation before the writ Court contained a typographical error and that in fact evidence on the relevant aspect had been furnished by the said candidate. 15. We thus called upon the respondents to clarify this aspect and also produce relevant records. The committee report has been produced before us which would go to show that in the remarks column the status of Manish Mishra was shown as ‘complied’ and the averment made in Para 4(d) of the counter affidavit containing the remark ‘not appropriate evidence’ is found to be a typographical error. The committee report has been produced before us which would go to show that in the remarks column the status of Manish Mishra was shown as ‘complied’ and the averment made in Para 4(d) of the counter affidavit containing the remark ‘not appropriate evidence’ is found to be a typographical error. The respondents moreover submits that there is only one report of the committee, dated 11.8.2011, and that no subsequent opportunity was given to any candidate, including Manish Mishra and, therefore, the argument of the appellants that they have been discriminated viz-a-viz Manish Mishra is found to be factually incorrect. We, accordingly, reject the argument of the appellants that any discriminatry treatment has been meted out to the appellants on the aspect relating to furnishing of evidence to demonstrate that the candidate had represented in atleast 5 matters in a year while practising at the bar. 16. Sri Gajendra Pratap and Sri V.K. Singh, learned Senior counsels have argued that each of the appellant had submitted a certificate on affidavit giving details of 5 cases in which he had represented in a year which amounted to submission of appropriate evidence regarding representation in 5 matters in a year while practising at the bar. It is also urged that in the event respondents had any doubt regarding the certificate furnished before the Corporation it was open for the Corporation to have called for additional information or conduct necessary inquiry in order to determine the correctness or otherwise of the certificate so furnished. Learned Senior counsels also submit that the nature of evidence to be accepted for the purpose came to be determined by the Corporation, later, and in that eventuality a fresh opportunity ought to have been granted to the candidates to furnish such evidence in support of their respective plea of representing 5 cases or more in a year and its denial, in the facts and circumstances, is arbitrary. 17. Per contra, it is argued on behalf of the Corporation that uniform criteria has been applied while considering the evidence submitted by the candidate to demonstrate that he has represented in 5 cases in a year while practising at the bar. Submission is that there was neither any malice nor any discrimination meted out to any of the candidates while determining the eligibility in terms of the advertisement. 18. Submission is that there was neither any malice nor any discrimination meted out to any of the candidates while determining the eligibility in terms of the advertisement. 18. We have heard learned counsel for the parties and have carefully perused the materials on record. 19. In this appeal we are called upon to adjudicate as to whether learned Single Judge was justified in holding the appellants to be ineligible on the basis of evidence led in support of their candidature for appointment to the post of A.G.M. (Legal) in Food Corporation of India. As a sequel, it has to be seen as to whether the Corporation acted arbitrarily in denying consideration to appellants’ claim for appointment. 20. Parties are at issue with regard to interpretation of the eligibility clause requiring certification with appropriate evidence that the candidate has represented in atleast 5 matters in a year while practising at the bar. The terminology used in specifying the eligibility needs to be carefully examined. The requirement on part of the candidate is two fold. The first part requires certification that the candidate has represented in atleast 5 matters in a year while practising at the bar while second part relates to furnishing of appropriate evidence in that regard. Both the requirements have to be independently met in order to establish eligibility in terms of the advertisement. 21. In the facts of the present case, the certification by the candidate regarding his representation in 5 matters in a year while practising at the bar is on his affidavit. There is no other evidence to demonstrate such fact. In the event certification of representation was to be sufficient evidence of required representation by the candidate then there was no necessity of using the expression appropriate evidence for the purpose in the advertisement. 22. On behalf the appellants it is urged that the candidates had given details of the cases in which they were representing while practising at the bar and necessary inquiry could have been made either by the Corporation or such evidence could be demanded if the Corporation was not satisfied with the certification. 23. The argument of the appellants, in this regard, may appear to be attractive but merely for such reason the decision already taken cannot be interfered with. 23. The argument of the appellants, in this regard, may appear to be attractive but merely for such reason the decision already taken cannot be interfered with. As a employer the Corporation was entitled to insist upon observance of conditions specified in the advertisement and to reject the candidature if appropriate evidence was not furnished by the candidate. The requirement of furnishing appropriate evidence in support of claim of representation was specified in the advertisement and the Corporation will be justified in insisting upon it. Merely because a different course was permissible it would not mean that the exercise of power by the employer, in terms of advertisement, would get impaired. 24. The issue also needs to be examined from a different aspect. In the matters of public employment law is settled that mere selection does not confer a indispensable right [See: Shankarsan Dash vs. Union of India, (1991) 3 SCC 47 ]. It is only when it is shown that the employer acted arbitrarily that interference by the Court would be warranted in such matters. 25. On the facts of the case we find that there is no arbitrariness on part of the Corporation in considering the candidature of the appellants. Merely because a more favourable interpretation would have served the appellants better cannot be the reason for this Court to interfere in the matter. We are also conscious of the fact that a period of almost fourteen years have passed since the recruitment was undertaken and, therefore, at this late stage, we are not inclined to entertain this appeal or to direct Corporation to hold a further inquiry into correctness of the certification offered by the appellants on affidavit. 26. Learned Single Judge has also noticed the fact that similarly placed persons had approached Delhi High Court in respect of their grievance but their petition was dismissed. The special leave petition filed before the Supreme Court was also dismissed. In such circumstances, there is hardly any scope for this Court to interfere with the judgment of the learned Single Judge. 27. We have also considered the appellants’ contention that by specifying the evidence of representation by the candidate the committee has in fact evolved a criteria, later, which amounts to change in the rules of game after it has begun. 27. We have also considered the appellants’ contention that by specifying the evidence of representation by the candidate the committee has in fact evolved a criteria, later, which amounts to change in the rules of game after it has begun. This argument cannot be accepted since none of the appellants have in fact furnished any evidence and the only material on record to establish required representation was the certificate furnished on affidavit. In the absence of their being any evidence furnished in support of the candidature by the appellants, we are not persuaded to dwell upon the question as to what would be the appropriate evidence or to consider the plea that subsequent determination by the committee of permissible evidence amounts to change in the rules of game. 28. In view of the deliberations held above and in the context of long period of time which has expired, we are not persuaded to interfere in the judgment of the learned Single Judge while dismissing the writ petitions. The special appeals, consequently, fail and are dismissed.