RITU BHATIA versus MINISTRY OF CIVIL SUPPLIES CONSUMER AFFAIRS & PUBLIC DISTRIBUTION AND OTHERS

[2019] 3 S.C.R. 663

RITU BHATIA

MINISTRY OF CIVIL SUPPLIES CONSUMER AFFAIRS &PUBLIC DISTRIBUTION AND OTHERS

(Civil Appeal No. 1467 of 2019)

FEBRUARY 05, 2019

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

Service Law – Termination – Respondent no.2 invitedapplications for the post of Company Secretary – Advertisementprovided for five years post qualification mandatory experienceas Company Secretary as on 30.11.2013 in PSU/PrivateCompany of repute – Appellant applied for the post of CompanySecretary and was appointed to the post of Company Secretary –Appellant’s service terminated by respondent no.2 on the groundthat she did not have the requisite five years’ experience for thepost of Company Secretary – Challenge by appellant before theHigh Court, dismissed – Held: As per appellant she was working asAssistant Company Secretary for the period between June 2008 toMay 2010 in Utkal Investments Limited, as Management Trainee inthe Delhi Stock Exchange Association Limited for the period betweenApril 2005 to June 2006, and as Management Trainee in ONGCfor the period between May 2003 to June 2004 – Her appointmentas Management Trainee cannot be equated and/or considered asappointment ‘as’ Company Secretary – Word ‘as’ used in theadvertisement should be given literal meaning – It cannot be saidthat the appellant had, while working as ‘Management Trainee’,functioned ‘as’ ‘Company Secretary – Word ‘as’ and the words‘experience as Company Secretary’ used in the advertisement arevery clear and means that the candidate ought to be appointed andworked ‘as’ Company Secretary – Appellant had no experienceof five years ‘as Company Secretary and she did not fulfil theeligibility criteria of having five years post qualification experience‘as’ Company Secretary as on 30.11.2013 – Services of the appellantrightly terminated.

ADismissing the appeal, the Court

HELD: 1.1 As per the case of the appellant she was workingas Assistant Company Secretary for the period between June2008 to May 2010 in Utkal Investments Limited and she wasworking as Management Trainee in the Delhi Stock ExchangeBAssociation Limited for the period between April 2005 to June2006, and as the Management Trainee in ONGC for the periodbetween May 2003 to June 2004. Her appointment asManagement Trainee cannot be equated and/or considered asappointment ‘as’ Company Secretary. [Para 7.2][670-D-E]C1.2 The word ‘as’ used in the advertisement should be givena literal meaning. The respondent is the author of theadvertisement and they are the best person to consider whatthey meant by using the word ‘as’. It is the specific case on behalfof the respondents that the intention behind the advertisementwas that the applicant must have been appointed ‘as’ CompanyDSecretary in PSU/Company of repute and functioned as such forfive years to be eligible for appointment. According to therespondent, the purpose was that the person should have heldthe position of Company Secretary in PSU/Company of reputeand discharged the statutory functions as such i.e. should haveEheld the position of responsibility. Therefore, when the word ‘as’is specifically used, the same is to be considered strictly andtherefore the experience of the appellant, while working as a‘Management Trainee’ cannot be considered as an experienceof working ‘as’ Company Secretary and/or it cannot be said thatshe was appointed ‘as’ Company Secretary. If the period duringFwhich the appellant had worked as ‘Management Trainee’ isexcluded, in that case, admittedly, the appellant would not befulfilling the requisite eligibility criteria of having been appointed‘as’ Company Secretary in PSU/Company of repute. It cannotbe said that the appellant had, while working as ‘ManagementGTrainee’, functioned ‘as’ ‘Company Secretary. If submission onbehalf 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 fulfilledthe eligibility criteria of having been appointed ‘as’ CompanySecretary, in that case, it would be against the intent. If theH

RITU BHATIA v. MINISTRY OF CIVIL SUPPLIES CONSUMERAFFAIRS & PUBLIC DISTRIBUTION

intention was such, in that case, the wording in the advertisementshould have been that the candidate should have the experienceof the similar nature of work as “Company Secretary”. In theadvertisement, it has been specifically and categorically statedthat candidate shall have post qualification experience of fiveyears ‘as’ Company Secretary. The word used “experience asCompany Secretary” has to be given meaning that candidatemust have been appointed ‘as’ Company Secretary and shallhave actually worked ‘as’ Company Secretary for five years.Giving other meaning would be changing the eligibility criteriaas mentioned in the advertisement. The appellant has noexperience of five years ‘as’ Company Secretary, as she wasappointed and/or worked as ‘Management Trainee’ or ‘AssistantCompany Secretary’. [Paras 7.3, 7.4][670-F-H; 671-A-E]

1.3 In the present case, the word ‘as’ and the words‘experience as Company Secretary’ used in the advertisementare very clear and it means the candidate ought to be appointedand worked as such ‘as’ Company Secretary. As appellant didnot fulfil the eligibility criteria of having five years post qualificationexperience ‘as’ Company Secretary as on 30.11.2013, the servicesof the appellant have rightly been terminated. [Paras 7.6, 8][672-E-G]

Dr. Asim Kumar Bose v. Union of India and Others(1983) 1 SCC 345 : [1983] 2 SCR 16 – distinguished.

Case Law Reference

[1983] 2 SCR 16distinguishedPara 5.5

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1467of 2019.

From the Judgment and Order dated 31.07.2017 of the High Courtof Delhi at New Delhi in L.P.A. No. 160 of 2015.

Sunil Kumar, Sr. Adv., Ms. Rohini Prasad, Ashish Kumar, AkshatChaitanya, Mrs. Sarla Chandra, Advs. for the Appellant.

Gaurab Banerji, Sr. Adv., Ashish Tiwari, Gaurav Agrawal,Ms. Manisha Singh, Advs. for the Respondents.

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 passed by the Division Bench of the High Court of Delhidated 31.07.2017 passed in Letter Patent Appeal (LPA) No.160 of 2015Bby which the Division Bench has dismissed the said appeal and hasconfirmed the judgment and order passed by the learned Single Judgedated 02.02.2015 passed in Writ Petition (C) No.977 of 2015 dismissingthe said writ petition by not interfering with the order terminating theservices of the appellant, the original writ petitioner has preferred theCpresent appeal.

3. That respondent no.2 herein-Central Railside WarehouseCompany Limited invited applications for the post of Company Secretary.That respondent no.2’s advertisement, specifically provided for, five yearspost qualification mandatory experience as Company Secretary as onD30.11.2013 in PSU/Private Company of repute. The appellant hereinapplied for the post of Company Secretary. In her application shecategorically stated that she had post qualification experience of sevenyears and three months. That thereafter she appeared in an interviewheld by respondent no.2 and was offered appointment to the post ofCompany Secretary vide memorandum dated 13.03.2014. Thereafter,Eshe was appointed on regular basis to the post of Company Secretary byOffice Order dated 22.04.2014. show cause notice dated 01.11.2014was issued by respondent no.2 calling upon the appellant to explain whyher services should not be terminated as she did not have the requisitefive years’ experience for the post of Company Secretary. The appellantFsubmitted her reply to the above show cause notice. Respondent no.2thereafter vide its order dated 02.01.2015 terminated the services of theappellant.

4. The order of termination was challenged by the appellant beforethe High Court in Writ Petition (C) No.977 of 2015. By order datedG02.02.2015, the learned Single Judge dismissed the said petition. Theorder passed by the learned Single Judge dismissing the writ petitionwas the subject matter of the appeal before the Division Bench of theHigh Court by way of LPA No.160 of 2015. By the impugned judgmentand order, the Division Bench has dismissed the said appeal and hasconfirmed the judgment and order passed by the learned Single JudgeH

dismissing the writ petition. The order passed by the Division Bench inLPA No.160 of 2015 is the subject matter of the present appeal.

5. Shri Sunil Kumar, learned Senior Counsel has appeared on behalfof the appellant herein and Shri Gourab Banerji, learned Senior Counselhas appeared on behalf of respondent no.2 herein.

5.1 Shri Sunil Kumar, learned senior counsel has submitted that inthe facts and circumstances of the case, the High court committed agrave error in approving the order of termination on the ground that theappellant was not having the requisite qualification of having experienceof five years as Company Secretary. It is submitted by Shri SunilKumar that the High Court has failed to appreciate the fact that thoughduring seven years and three months experience shown in her application,the appellant might have been appointed as Management Trainee andAssistant Company Secretary and consequently might not have beenactually appointed as the Company Secretary, however, the appellantwas discharging certain or some functions/duties during the period of aCompany Secretary. It is submitted that therefore it can be said that theappellant was having requisite experience of five years as CompanySecretary. Therefore, the period during which the appellant was workingas Management Trainee is required to be counted as the requisiteexperience for the post of Company Secretary.

5.2 It is further submitted by Shri Sunil Kumar, learned seniorcounsel that the object and purpose behind asking for the experience asa Company Secretary was that the applicant has an experience of workingas Company Secretary and not that he/she had actually worked and/orperformed the duties as Company Secretary under the provisions ofthe Company Secretary Act 1980. It is submitted therefore, the HighCourt committed an error to hold that the appellant was not having therequisite experience as Company Secretary.

5.3 Relying upon prescribed format of submitting the applicationattached with the application form, it is submitted that what was requiredwas the qualification/ experience as Company Secretary and not actualworking as Company Secretary.

5.4 It is further submitted by Shri Sunil Kumar, learned seniorcounsel that as far as the experience gained by the appellant whileworking with Bharat Bhushan Shares and Commodity Brokers Limitedis concerned, the High Court has committed grave error in considering

Athe experience only till May, 2007, though the Form-32 shows the dateof cessation as 29.06.2007.

5.5 Relying upon the decision of this Court in the case of Dr. AsimKumar Bose v. Union of India and Others (1983) 1 SCC 345, it issubmitted by Shri Sunil Kumar that as observed and held by this Court,Bthe word ‘as’ must be interpreted in its ordinary sense as ‘in the capacityof’ 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 theapplicant shall have the experience similar as to or like or of the samekind of Company Secretary. It is submitted, therefore, the experienceCgained by the appellant while working as Management Trainee and duringwhich the appellant was also performing the similar duties of CompanySecretary, the said experience was required to be counted for the purposeof calculation of experience of five years as Company Secretary.

5.6 Making above submissions it is prayed to allow the presentDappeal and set aside the order passed by the High Court as well as theorder of termination terminating the services of the appellant as aCompany Secretary.

6. Present appeal is opposed by Shri Gourab Banerji learned SeniorCounsel appearing on behalf of the respondents. It is submitted by ShriEBanerji that in the advertisement, inviting the applications for the post ofCompany Secretary, it was specifically mentioned that the candidatemust have an experience of five years as Company Secretary. It issubmitted that the obvious intention behind the advertisement was thatthe applicant must have been appointed ‘as’ Company Secretary inFPSU/Company of repute and functioned as such for five years ‘as’ aCompany Secretary, to be eligible for appointment.

6.1 It is further submitted that the purpose was that the personshould have held the position of Company Secretary in PSU/Companyof repute and discharged the statutory functions as such i.e. should haveGheld the position of responsibility. It is submitted that in the present caseand even from the particulars given by the appellant while submitting theapplication and even from the self-attested documents/experiencecertificates enclosed with the application, it can be seen that the appellantwas not fulfilling the requisite eligibility criteria of having an experienceof five years ‘as’ Company Secretary. Shri Banerji further submitsHthat, 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 thatexperience as ‘Management Trainee’ and or ‘Assistant CompanySecretary’, cannot be counted for the purpose of considering the eligibilitycriteria of five years ‘as’ Company Secretary.

6.2 Further Shri Banerji submitted that, therefore, when it wasfound that the total post qualification experience of the appellant ‘as’Company Secretary was less than five years against the requirement ofminimum five years’ experience and thereafter when the services of theappellant were terminated on the ground that at the time when theapplication was invited, she was not fulfilling the eligibility criteria, herservices have been rightly terminated. It is submitted that the High Courtin the impugned judgment and order has considered in detail the experienceof the appellant while working in Delhi Stock Exchange AssociationLimited; Bharat Bhushan Shares and Commodity Brokers Limited; UtkalInvestment Limited and thereafter considering the material on record,has rightly refused to interfere with the order of termination and hasrightly rejected the petition.

6.3 Shri Banerji. Learned counsel for the respondent has furthersubmitted that so far as the reliance placed upon the decision of thisCourt in the case of Dr. Asim Kumar Bose (supra) relied upon by thelearned Senior Counsel appearing on behalf of the appellant is concerned,it is submitted by Shri Banerji that on facts, the said decision shall not beapplicable to the facts of the case on hand. It is submitted that the saiddecision is distinguishable on facts. It is submitted that, on interpretationof the relevant rules, this Court held that the word ‘as’ in the collocationof the words used “at least six years’ experience as Associate Professor/Assistant Professor/reader” and the words “at least five years’ experienceas Reader/Assistant Professor” must be interpreted in its ordinary senseas meaning teaching experience gained “in the capacity of”. It issubmitted that before this Court the question was whether Specialists’Grade II in teaching hospital belonging to the Central Health Servicewas eligible for appointment or promotion as Professor or AssociateProfessor of the concerned speciality? It is submitted therefore, the saiddecision shall not be applicable to the facts of the case on hand. Makingabove submissions, it is prayed to dismiss the present appeal.7. Heard the learned Senior Counsel appearing on behalf of therespective parties at length. The question which is posed for consideration

Abefore this Court is, whether in the facts and circumstances of the casecan it be said that the appellant fulfilled the eligibility criteria mentionedin the advertisement of having experience of five years ‘as’ CompanySecretary and/or, can it be said that the period during which the appellantworked as ‘Management Trainee’ and/or ‘Assistant Company Secretary’be considered for treating the appellant having been appointed ‘as’ aBCompany Secretary so as to become eligible for the post of CompanySecretary which was advertised?

7.1 From the material on record, more particularly the applicationsubmitted by the appellant and the supporting self-attested documentsand the certificates, it appears that according to the appellant she wasChaving seven years and three months post qualification experience. Thesame is reproduced and considered by the High Court in para 3 of theimpugned judgment and order.

7.2 Considering the above, it appears and even it can be seenfrom the relevant appointment orders, and even as per the case of theDappellant that she was working as Assistant Company Secretary for theperiod between June 2008 to May 2010 in Utkal Investments Limitedand that she was working as Management Trainee in the Delhi StockExchange Association Limited for the period between April 2005 to June2006, and as the Management Trainee in ONGC for the period betweenEMay 2003 to June 2004. Her appointment as Management Trainee cannotbe equated and/or considered as appointment ‘as’ Company Secretary.

7.3 The word ‘as’ used in the advertisement should be given aliteral meaning. The respondent is the author of the advertisement andthey are the best person to consider what they meant by using the wordF‘as’. It is the specific case on behalf of the respondents that the intentionbehind the advertisement was that the applicant must have beenappointed ‘as’ Company Secretary in PSU/Company of repute andfunctioned as such for five years to be eligible for appointment. Accordingto the respondent, the purpose was that the person should have held theposition of Company Secretary in PSU/Company of repute andGdischarged the statutory functions as such i.e. should have held theposition of responsibility. Therefore, when the word ‘as’ is specificallyused, the same is to be considered strictly and therefore the experienceof the appellant, while working as ‘Management Trainee’ cannot beconsidered as an experience of working ‘as’ Company Secretary and/Hor it cannot be said that she was appointed ‘as’ Company Secretary.

If the period during which the appellant had worked as ‘ManagementTrainee’ is excluded, in that case, admittedly, the appellant would not befulfilling the requisite eligibility criteria of having been appointed ‘as’ aCompany Secretary in PSU/Company of repute. It cannot be said thatthe appellant had, while working as ‘Management Trainee’, functioned‘as’ ‘Company Secretary.

7.4 If submission on behalf of the appellant is accepted that byperforming duties as ‘Management Trainee’ she was also performingsome duties as ‘Company Secretary’ and therefore she can be said tohave fulfilled the eligibility criteria of having been appointed ‘as’ aCompany Secretary, in that case, it would be against the intent. If theintention was such, in that case, the wording in the advertisement shouldhave been that the candidate should have the experience of the similarnature of work as “Company Secretary”. In the advertisement, it hasbeen specifically and categorically stated that candidate shall havepost qualification experience of five years ‘as’ Company Secretary. Theword used “experience as Company Secretary” has to be given meaningthat candidate must have been appointed ‘as’ Company Secretaryand shall have actually worked ‘as’ Company Secretary for five years.Giving other meaning would be changing the eligibility criteria asmentioned in the advertisement. As observed hereinabove, the appellanthas no experience of five years ‘as’ Company Secretary, as she wasappointed and/or worked as ‘Management Trainee’ or ‘AssistantCompany Secretary’.

7.5 Now, so far as the reliance placed upon the decision of thisCourt in Dr. Asim Kumar Bose (supra) by learned Senior Counselappearing on behalf of the appellant is concerned, on considering thefacts of the case before this Court, we are of the opinion that the saiddecision shall not be applicable to the facts of the case on hand. Thefacts before this Court in the aforesaid decision are distinguishable. Inthe aforesaid decision, the appellant was appointed to the Specialists’Grade in substantive capacity as Radiologist in Irwin Hospital, Delhiwhich was teaching hospital. He was considered as an AssociateProfessor of Radiology (ex officio) both by the Delhi University as wellas by the Maulana Azad Medical College, Delhi to which Irwin Hospitalwas affiliated. He was not considered for the regular appointment to thepost of Associate Professor of Radiotherapy in that college on the groundthat his teaching experience as ex officio Associate Professor was notto be counted. Rule 8(2-A) of the Central Health Service Rules was

Aunder consideration by this Court which provided that candidate shallhave the teaching experience as an Associate Professor. The appellantwas having the experience as an Associate Professor of Radiology (Ex-officio) and therefore it was the case on behalf of the Union of Indiathat he was not having the teaching experience as Associate Professoras he worked as an Associate Professor of Radiology (ex-officio). ToBthat, this Court observed and held that the provisions contained in Rule8(2-A) and paragraph 3 of Annexure I to the Second Schedule of theCentral Health Service Rules must be interpreted in broad and liberalsense so as to avoid any injustice to person in specialists’ Grade like theappellant. This Court observed that the Rules nowhere provide that theCteaching experience gained by Specialist in teaching hospital as anAssociate Professor (ex officio) shall not be counted towards the requisiteteaching experience. This Court further observed that there is hardlyany difference so far as the teaching experience is concerned whetherit is acquired on regular appointment or as specialist in teaching hospitalwith the ex officio designation. It was thereafter further observed thatDthe word ‘as’ in the collocation of the words used “at least six years’experience as Associate Professor/Assistant Professor/Reader” and ofthe words “at least five years’ experience as Reader/Assistant Professor”in the relevant Rules must be interpreted in its ordinary sense as meaningteaching experience gained “in the capacity of”.E

7.6 In the present case, the word ‘as’ and the words ‘experienceas Company Secretary’ used in the advertisement are very clear and asobserved hereinabove it means the candidate ought to be appointed andworked as such ‘as’ Company Secretary. Therefore, the aforesaiddecision shall not be applicable to the facts of the case on hand.

8. In view of the above and for the reasons stated above, asappellant did not fulfil the eligibility criteria of having five years postqualification experience ‘as’ Company Secretary as on 30.11.2013, theservices of the appellant have rightly been terminated. We are in completeagreement with the view taken by the High Court.G

9. In view of the reasons stated above, the present appeal failsand is accordingly dismissed. No costs.

Divya Pandey

Appeal dismissed.