Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._3600 OF 2019
(Arising from SLP(C) No.4210 of 2019)
Food Corporation of India ..Appellant
Versus
Rimjhim ..Respondent
J U D G M E N T
M.R. SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 03.08.2018 passed by the Division
Bench of the High Court of Delhi at New Delhi in L.P.A. No. 383
of 2018, by which the Division Bench has allowed the said appeal
preferred by the respondent herein – the original writ petitioner
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2019.04.09
18:07:31 IST
Reason:
and has quashed and set aside the judgment and order passed
by the learned Single Judge of the High Court, dismissing the
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writ petition preferred by the original writ petitioner and
consequently quashed and set aside the action of the Food
Corporation of India (hereinafter referred to as the ‘FCI’) rejecting
the case of the original writ petitioner for appointment on the
post of Assistant GradeII(Hindi), the original respondent – the
appellant herein has preferred the present appeal.
3. The facts leading to the present appeal in nutshell are
as under:
That the appellant herein – the original respondent –
FCI invited applications for the post of Assistant GradeII (Hindi)
by publishing an advertisement on 14.02.2015. The original writ
petitioner applied for the said post on 16.03.2015. Her
application form was accepted and she was issued an admitted
card for the written test to be conducted by the FCI. The written
test was held on 4.10.2015. The original writ petitioner was
shortlisted. She was ranked sixth in the merit list. A call letter
was issued to her on 31.12.2015. She was asked to report at the
Zonal office of the FCI and produce her original documents,
which were retained by the FCI and after verification, the same
were returned. However, she did not receive the final letter of
appointment. The list of selected candidates was published on
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the website of the FCI on 2.5.2016, in which her name did not
figure. Therefore, a representation was submitted by her on
6.5.2016, which was not considered favourably. Therefore, the
original writ petitioner approached the High Court by way of a
writ petition. Before the learned Single Judge, it was the case on
behalf of the FCI that the original writ petitioner was not finally
selected as she did not produce any experience certificate to show
that she had one year’s experience of translation from English to
Hindi and viceversa. It should be noted that before the learned
Single Judge, the original writ petitioner produced the certificates
issued by her erstwhile employer in support of her case that she
had an experience of translation from English to Hindi and vice
versa.
3.1 The learned Single Judge dismissed the writ petition
holding that since the original writ petitioner did not have
requisite experience of one year for translation work from English
to Hindi and viceversa, the FCI was justified in denying her
employment.
4. Feeling aggrieved and dissatisfied with the judgment
and order passed by the learned Single Judge dismissing the writ
petition, the original writ petitioner preferred Letters Patent
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Appeal before the Division Bench of the High Court. By the
impugned judgment and order, the Division Bench has allowed
the appeal preferred by the original writ petitioner and has
quashed and set aside the judgment and order passed by the
learned Single Judge dismissing the writ petition and
consequently has set aside the action of the FCI rejecting the
case of the original writ petitioner. While passing the impugned
judgment and order, the Division Bench has observed and held
that considering the certificates produced by the original writ
petitioner dated 14.01.2015 and 18.07.2016, the original writ
petitioner can be said to have the requisite experience of
translation from English to Hindi and viceversa, and considering
th
the fact that the original writ petitioner ranked 6 in the merit
list, therefore otherwise was found to be meritorious, the Division
Bench of the High Court held that FCI was not justified in
denying the appointment to the original writ petitioner.
5. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the Division Bench of the High
Court, the FCI has preferred the present appeal.
5.1 Shri N.K. Kaul, learned Senior Advocate has appeared
on behalf of the FCI and Shri R.K. Raizada, learned Senior
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Advocate has appeared on behalf of the respondent herein – the
original writ petitioner.
5.2 Shri N.K. Kaul, learned senior advocate appearing on
behalf of the appellant – FCI has vehemently submitted that the
Division Bench of the High Court has materially erred in setting
aside the action of the FCI in rejecting the case of the original
writ petitioner.
5.3 It is vehemently submitted by Shri N.K. Kaul, learned
Senior Advocate appearing on behalf of the appellant – FCI that it
is an admitted position that as per the advertisement, one of the
essential requirements was that the candidate must have one
year’s experience of translation from English to Hindi and vice
versa. It is submitted that therefore a candidate was required to
submit the one year’s experience certificate/proof of translation
from English to Hindi and viceversa at the time of submitting the
application. It is submitted that admittedly the original writ
petitioner did not produce any certificate of her having one year’s
experience of translation from English to Hindi and viceversa.
5.4 It is vehemently submitted by Shri N.K. Kaul, learned
Senior Advocate appearing on behalf of the appellant – FCI that
certificate which was produced by the original writ petitioner
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dated 27.08.2014, which was produced along with the
application, by no stretch of imagination, can be said to be a
certificate of one year’s experience of translation from English to
Hindi and viceversa, as required. It is submitted that what was
produced by the original writ petitioner was a relievingcum
experience letter. It is submitted that therefore the FCI was
justified in not appointing the original writ petitioner as the
original writ petitioner did not produce any experience certificate
to fulfil the eligibility criteria. Relying upon clauses 28, 32, 33,
35 and 37 of the advertisement, it is submitted by Shri Kaul,
learned Senior Advocate appearing on behalf of the FCI that the
FCI was justified in not appointing the original writ petitioner.
5.5 It is further submitted by Shri N.K. Kaul, learned
Senior Advocate appearing on behalf of the appellant – FCI that
the Division Bench of the High Court has materially erred in
considering the certificates produced subsequently, namely,
certificates dated 14.01.2015 and 18.07.2016. It is submitted
that as such the experience certificate was required to be
produced at the time of submitting the application and/or at
least at the time of verification of documents. It is submitted that
the certificates dated 14.01.2015 and 18.07.2016 upon which the
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reliance has been placed by the original writ petitioner were
neither produced by the original writ petitioner along with the
application form nor even at the time of verification of the
documents. It is submitted that therefore the Division Bench of
the High Court has materially erred in considering those
certificates while holding that the original writ petitioner was
having one year’s experience of translation from English to Hindi
and viceversa, as required as per the advertisement.
5.6 It is vehemently submitted by Shri N.K. Kaul, learned
Senior Advocate appearing on behalf of the appellant – FCI that if
the impugned judgment and order passed by the Division Bench
of the High Court is accepted, in that case, there shall not be any
sanctity of the requirement as per the advertisement. It is
submitted that if the candidate is permitted to produce the
relevant experience certificate subsequently and that too after the
selection process is over, in that case, there shall not be any
sanctity of the relevant clauses of the advertisement and/or the
procedure which is required to be followed as per the
advertisement and there shall not be any end to the selection
process.
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5.7 Making the above submissions, it is prayed to allow
the present appeal and quash and set aside the impugned
judgment and order passed by the Division Bench of the High
Court.
6. The present appeal is opposed by Shri R.K. Raizada,
learned Senior Advocate appearing on behalf of the original writ
petitioner.
6.1 It is vehemently submitted by the learned Counsel
appearing on behalf of the original writ petitioner that in the facts
and circumstances of the case and considering the fact that the
original writ petitioner was, in fact, having the requisite
experience of translation from English to Hindi and viceversa,
and considering the fact that on merits even the original writ
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petitioner ranked 6 in the merit list, the Division Bench of the
High Court has not committed any error in quashing and setting
aside the action of the FCI in rejecting the case of the original
writ petitioner.
6.2 It is vehemently submitted by the learned Counsel
appearing on behalf of the original writ petitioner that as rightly
observed by the Division Bench, at the most, nonproduction of
the requisite experience certificate can be said to be mere
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irregular which shall not defeat the case of a meritorious
candidate. It is submitted that as such in the present case in the
advertisement it was not specifically mentioned that a candidate
has to produce the experience certificate along with the
application. It is submitted that the advertisement speaks about
the essential eligibility criteria. It is submitted that therefore
when in the advertisement it was not specifically mentioned that
a candidate has to produce the certificate/experience certificate
along with the application, nonproduction of the experience
certificate along with the application cannot be said to be fatal so
as to deny the legitimate right of the original writ petitioner to
consider her case for appointment on merits.
6.3 It is submitted by the learned Counsel appearing on
behalf of the original writ petitioner that as such in the counter
affidavit filed by the FCI before the High Court, the FCI did not
specifically disputed and/or doubted the certificates dated
14.01.2015 and 18.07.2016.
6.4 It is further submitted by the learned Counsel
appearing on behalf of the original writ petitioner that as rightly
observed by the Division Bench of the High Court, when the
original writ petitioner appeared before the authority for
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verification of the documents, if the FCI would have any doubt
about the original writ petitioner having not fulfilled any eligibility
criteria, more particularly one year’s experience, considering
clause 33 of the advertisement, the FCI/authority could have
called for any additional documentary evidence in support of
educational qualification and experience of the applicant. It is
submitted that therefore in the facts and circumstances of the
case and after having been satisfied that the original writ
petitioner was fulfilling all the eligibility criteria including one
year’s experience of translation from English to Hindi and vice
versa and having found that the original writ petitioner ranked
th
6 in the merit list and therefore otherwise found to be
meritorious, the Division Bench of the High Court has rightly set
aside the action of the FCI in rejecting the case of the original
writ petitioner.
6.5 Making the above submissions, it is prayed to dismiss
the present appeal.
7. We have heard learned Senior Advocates appearing on
behalf of the respective parties at length.
7.1 At the outset, it is required to be noted that the
original writ petitioner was denied the appointment on the post of
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Assistant GradeII (Hindi) on the ground that the original writ
petitioner did not produce the certificate of one year’s experience
of translation from English to Hindi and viceversa along with the
application and/or even at the time of verification of documents.
According to the FCI, one year’s experience of translation from
English to Hindi and viceversa was essential to become a
candidate eligible for the post in question. It is required to be
noted that the aforesaid stand was taken by the FCI for the first
time before the learned Single Judge in a writ petition filed by the
original writ petitioner. Therefore, the original writ petitioner
produced the certificates dated 14.01.2015 and 18.07.2016
issued by her erstwhile employer, in support of her case that she
was having one year’s experience of translation from English to
Hindi and viceversa.
8. The learned Single Judge dismissed the writ petition
solely relying upon and/or considering the document produced
by the original writ petitioner as relievingcumexperience letter
dated 27.08.2014 and opined that from the said letter, it cannot
be said that the original writ petitioner had one year’s experience
of translation from English to Hindi and viceversa, which was
the essential requirement to become a candidate eligible.
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However, the learned Single Judge did not consider the
certificates dated 14.01.2015 and 18.07.2016 issued by the
erstwhile employer of the original writ petitioner. If the aforesaid
two certificates are considered, in that case, it can safely be said
that the original writ petitioner was having one year’s experience
of translation from English to Hindi and viceversa and therefore
fulfilled all the essential requirements/eligibility criteria. As
observed hereinabove, and it can be seen from the counter
affidavit filed on behalf of the FCI, filed before the High Court, the
FCI have not doubted the aforesaid two certificates. Their only
contention seems to be that as the original writ petitioner did not
produce the certificate of one year’s experience of translation
from English to Hindi and viceversa either along with the
application or even at the time of verification of documents, the
aforesaid certificates cannot be considered at all and therefore in
absence of those certificates and/or any certificate of having one
year’s experience in translation from English to Hindi and vice
versa, which was the essential requirement, the original writ
petitioner cannot be said to have fulfilled the eligibility
criteria/essential requirement of having one year’s experience.
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9. So far as the case on behalf of the FCI that as the
original writ petitioner did not produce the certificate of one
year’s experience along with the application is concerned, it is
required to be noted that in the advertisement there was no such
requirement. What is provided in the advertisement is that a
candidate must have one year’s experience of translation from
English to Hindi and viceversa along with the other
qualifications. The advertisement does not provide specifically
and/or provide that a candidate shall produce the certificate of
experience along with the application. Therefore, the Division
Bench of the High Court has rightly observed that non
production of one year’s experience certificate along with the
application cannot be said to be fatal to the case of the original
writ petitioner and on that ground the original writ petitioner
could not have been denied the appointment, if otherwise she is
found to be meritorious. We are in complete agreement with the
view taken by the Division Bench of the High Court.
10. Now so far as the submission on behalf of the FCI that
the original writ petitioner did not produce the certificate of one
year’s experience even at the time of verification of documents
and what was produced was the relievingcumexperience letter
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dated 27.08.2014 along with the application and on the basis of
which it cannot be said that the original writ petitioner was
having one year’s experience is concerned, it is required to be
noted that at the time of verification of the documents, the
original writ petitioner was not informed/told that the letter
dated 27.08.2014 is not sufficient to establish the essential
requirement of one year’s experience. The original writ petitioner
was also not told/informed at the time of verification of
documents on 18.01.2016 that certificate of one year’s experience
is lacking.
10.1 Clause 33 of the advertisement, which is also
considered by the Division Bench of the High Court, provides that
the management reserves the right to call for any additional
documentary evidence in support of educational qualification &
experience of the applicant. As found from the record and even
as observed by the Division Bench, the management at the time
of verification of the documents, did not thought it fit to call upon
the applicant to produce any additional documentary evidence in
support of her experience. The management could have called
for any additional documentary evidence in support of experience
of the applicant. If the management would have called for the
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additional documentary evidence in support of experience of the
applicant, in that case, the original writ petitioner would have
produced the certificates, which are subsequently produced
before the High Court. At the cost of the repetition, it is to be
noted that the FCI has not doubted the certificates dated
14.01.2015 and 18.07.2016 issued by the erstwhile employer of
the original writ petitioner. Therefore, the Division Bench of the
High Court has rightly observed and held considering the
aforesaid two certificates that the original writ petitioner was
having one year’s experience of translation from English to Hindi
and viceversa and therefore fulfilled all the requisite essential
requirements/qualifications and therefore she was required to be
considered for appointment on merits.
11. Now so far as the submission on behalf of the FCI that
a candidate must and/or ought to have produced the experience
certificate along with the application is concerned, at this stage, a
decision of this Court in the case of Charles K. Skaria v. Dr. C.
Mathew (1980) 2 SCC 752 and the subsequent decision of this
Court in the case of Dolly Chhanda v. Chairman, Jee and others
(2005) 9 SCC 779 are required to be referred to. In the case of
Charles K. Skaria (supra) , this Court had an occasion to consider
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the distinction between the essential requirements and the
proof/mode of proof. In the aforesaid case, this Court had an
occasion to consider the distinction between a fact and its proof.
In the aforesaid case before this Court, a candidate/student was
entitled to extra 10% marks for holders of a diploma and the
diploma must be obtained on or before the last date of the
application, not later. In the aforesaid case, a candidate secured
diploma before the final date of application, but did not produce
the evidence of diploma along with the application. Therefore, he
was not allowed extra 10% marks and therefore denied the
admission. Dealing with such a situation, this Court observed
and held that what was essential requirement was that a
candidate must have obtained the diploma on or before the last
date of application but not later, and that is the primary
requirement and to submit the proof that the diploma is obtained
on or before a particular date as per the essential requirement is
secondary. This Court specifically observed and held that “what
is essential is the possession of a diploma before the given date;
what is ancillary is the safe mode of proof of the qualification”.
This Court specifically observed and held that “to confuse
between a fact and its proof is blurred perspicacity”. This Court
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further observed and held that “to make mandatory the date of
acquiring the additional qualification before the last date for
application makes sense. But if it is unshakeably shown that the
qualification has been acquired before the relevant date, to
invalidate the merit factor because proof, though indubitable,
was adduced a few days later but before the selection or in a
manner not mentioned in the prospectus, but still above board, is
to make procedure not the handmaid but the mistress and form
not as subservient to substance but as superior to the essence.
While observing and holding so, in paragraphs 20 & 24, this
Court observed and held as under:
“ 20 . There is nothing unreasonable or arbitrary in
adding 10 marks for holders of a diploma. But to
earn these extra 10 marks, the diploma must be
obtained at least on or before the last date for
application, not later. Proof of having obtained a
diploma is different from the factum of having got it.
Has the candidate, in fact , secured a diploma before
the final date of application for admission to the
degree course? That is the primary question. It is
prudent to produce evidence of the diploma along
with the application, but that is secondary.
Relaxation of the date on the first is illegal, not so on
the second. Academic excellence, through a diploma
for which extra mark is granted, cannot be denuded
because proof is produced only later, yet before the
date of actual selection . The emphasis is on the
diploma; the proof thereof subserves the factum of
possession of the diploma and is not an independent
factor..... Mode of proof is geared to the goal of the
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qualification in question. It is subversive of sound
interpretation and realistic decoding of the
prescription to telescope the two and make both
mandatory in point of time. What is essential is the
possession of a diploma before the given date; what is
ancillary is the safe mode of proof of the qualification.
To confuse between a fact and its proof is blurred
perspicacity. To make mandatory the date of
acquiring the additional qualification before the last
date for application makes sense. But if it is
unshakeably shown that the qualification has been
acquired before the relevant date, as is the case here,
to invalidate this merit factor because proof, though
indubitable, was adduced a few days later but before
the selection or in a manner not mentioned in the
prospectus, but still aboveboard, is to make
procedure not the handmaid but the mistress and
form not as subservient to substance but as superior
to the essence.
xxx xxx xxx
24 . It is notorious that this formalistic, ritualistic,
approach is unrealistic and is unwittingly traumatic,
unjust and subversive of the purpose of the exercise.
This way of viewing problems dehumanises the
administrative, judicial and even legislative processes
in the wider perspective of law for man and not man
for law. Much of hardship and harassment in
administration flows from overemphasis on the
external rather than the essential. We think the
government and the selection committee rightly
treated as directory (not mandatory) the mode of
proving the holding of diplomas and as mandatory
the actual possession of the diploma. In actual life,
we know how exasperatingly dilatory it is to get
copies of degrees, decrees and deeds, not to speak of
other authenticated documents like marklists from
universities, why, even bail orders from courts and
Government Orders from public offices. This
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frustrating delay was bypassed by the State
Government in the present case by two steps.
Government informed the selection committee that
even if they got proof of marks only after the last date
for applications but before the date for selections
they could be taken note of and secondly the
Registrars of the Universities informed officially
which of the candidates had passed in the diploma
course. The selection committee did not violate any
mandatory rule nor act arbitrarily by accepting and
acting upon these steps. Had there been anything
dubious, shady or unfair about the procedure or any
mala fide move in the official exercises we would
never have tolerated deviations. But a prospectus is
not scripture and common sense is not inimical to
interpreting and applying the guidelines therein.
Once this position is plain the addition of special
marks was basic justice to proficiency measured by
marks.”
11.1 A similar view is taken by this Court subsequently in
the case of Dolly Chhanda (supra), relying upon the aforesaid
decision of this Court in the case of Charles K. Skaria (supra) .
12. Applying the law laid down by this Court in the
aforesaid two cases to the facts and circumstances of the case on
hand, we are of the opinion that the Division Bench has rightly
set aside the action of the FCI in rejecting the case of the original
writ petitioner and has rightly directed the FCI to consider the
case of the original writ petitioner for appointment on merits, if
all other conditions stand satisfied.
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13. In view of the above and for the reasons stated above,
the present appeal fails and the same deserves to be dismissed
and is accordingly dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
……………………………….J.
[L. NAGESWARA RAO]
NEW DELHI; ……………………………….J.
APRIL 09, 2019. [M.R. SHAH]
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