Full Judgment Text
REPORTABLE
2024 INSC 911
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10800 OF 2024
CHAUDHARY CHARAN SINGH
HARYANA AGRICULTURAL UNIVERSITY,
HISAR & ANR. … APPELLANTS
VS.
MONIKA & ORS. … RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
T HE A PPEAL
th
1. The present appeal assails the judgment and order dated 6 December,
2023 passed by the Division Bench of the Punjab and Haryana High Court
1
at Chandigarh in LPA No. 562/2022 (O&M), affirming the decision of the
Single Judge whereby the first respondent was directed to be considered
Signature Not Verified
Digitally signed by
JATINDER KAUR
Date: 2024.11.29
18:23:32 IST
Reason:
1
High Court, hereafter
Page 1 of 18
and offered appointment in the first appellant-Chaudhary Charan Singh
2
Haryana Agricultural University on the post of Clerk.
HE UESTION
T Q
2. The short question arising for decision in the appeal is, whether the
Single Judge and then the Division Bench of the High Court were in error
in treating the first respondent as qualified for consideration and
consequent appointment.
ESUME OF FACTS
R
3. The relevant facts essential to decide the present appeal are as follows:
I. In 1970, the University was established upon enactment of the
Haryana and Punjab Agricultural Universities Act, 1970.
3
II. In 2009, the second respondent-State of Haryana vide Circular No.
43/5/2001-IGSI introduced an outsourcing policy relating to
engagement of persons on contract basis through service
4
providers . This circular was adopted by the University vide memo
dated 24.02.2010.
III. In 2014, the SoH issued a further Circular bearing No. 43/5/2001-
3GSII relating to issuance of experience certificates to persons
engaged under the aforementioned outsourcing policy. This circular
5
too was adopted by the University on 25.06.2014 .
IV. In 2017, the University invited tenders for the purpose of providing
manpower relating to office/hospitality and lab/technical under Part
2
University, hereafter
3
SoH, hereafter
4
Outsourcing Policy, hereafter
5
Circular dated 25.06.2014, hereafter
Page 2 of 18
I of the Outsourcing Policy. Vide Office Order dated 29.03.2017, the
contract was awarded to two service agencies by the University.
The first respondent was engaged by one of the service agencies,
6
namely, M/s Lavnya Enterprises , to work as a clerk-cum-typist as
outsourced manpower for the time period between 05.05.2017 and
31.03.2018 in the University.
V. A certificate of experience was awarded to the first respondent by
Lavnya dated 01.04.2018. This certificate was countersigned by the
Professor and Head of the Department of Soil Science of the
University.
7
VI. Vide an advertisement , the University invited applications for
direct recruitment to various Group-C (non-teaching) posts. Under
the criteria for selection, the advertisement prescribed a maximum
of five (5) out of hundred (100) marks for ‘Experience’. It specified
that half a mark (0.5) would be given for experience in the same
or higher post in any department / board / corporation / company
/ statutory body / commission / authority of the Government of
Haryana, for each year or part thereof which exceeds six months
but limited to a maximum of ten (10) years.
VII. In pursuance of the advertisement, the first respondent had applied
and offered her candidature. Admittedly, the first respondent
scored 75 marks in the written test and was, accordingly, placed in
6
Lavnya, hereafter
7
Advertisement, hereafter
Page 3 of 18
Sl. No 103 and ranked Gen-92 in the merit list, and fell short of
selection.
VIII. Aggrieved, the first respondent invoked the writ jurisdiction of the
8
High Court by filing WPC No. 4402/2020 (O&M) impleading the
University, the SoH and two selected candidates as the first,
second, third and fourth respondents, respectively.
IX. A Single Judge of the High Court by his judgment and order dated
24.05.2022 ruled that the first respondent was eligible for 0.5 mark
for the service rendered by her between 05.05.2017 and
31.03.2018. As noted above, this decision was affirmed by the
Division Bench.
I MPUGNED J UDGMENTS
4. Since the first respondent had admittedly worked in the University for a
period exceeding six months, her Writ Petition was allowed by the Single
Judge directing allotment of 0.5 mark to the first respondent. The
University was directed to consider her for appointment as well as to
offer appointment, without disturbing any selected candidate.
Aggrieved, the University carried the judgment and order allowing the
Writ Petition in a Letters Patent Appeal. The Division Bench dismissed
the appeal presented by the University on the ground that the order of
the learned Single Judge does not suffer from any illegality, thereby
leaving the University still aggrieved.
8
Writ Petition, hereafter
Page 4 of 18
5. Having perused the judgment and order of the Single Judge, since
affirmed by the Division Bench, we have found the judgment and order
of both the writ court as well as the appellate court to be rather cryptic.
Exception cannot be taken to any judgment merely on the ground of its
brevity but if the judgment is cryptic and conclusions are reached
without proper analysis of facts and materials on record, the party
aggrieved would be justified in seeking setting aside of such judgment.
It is, perhaps, for such reason notice had been issued by a coordinate
Bench pursuant whereto the first respondent appeared; and, thereafter,
the parties argued their cases fully. However, since focused
consideration, due application of judicial mind and clarity of reasoning
are the imperatives of a proper judicial decision, we have thought it fit
to reflect on the issue arising for decision with the seriousness the same
deserves.
ONTENTIONS
C
6. The impugned judgment has been assailed by the University on the
grounds that:
I. Paragraph 1 of Part I of the Outsourcing Policy stipulates that
services may be outsourced as and when required partly or
completely by the departments where posts have not been
sanctioned. Part II deals with engagement of persons on contract
basis where the regular posts exist. In the instant case, the first
respondent was deputed in one of the universities through a
service provider under Part I of the Outsourcing Policy.
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II. Since the first respondent was engaged in the University by the
service provider, Lavnya, under the Outsourcing Policy for the
requirements of office work and not appointed on any regular or
sanctioned post of clerk, the experience acquired by her cannot be
equated with the experience of working on a sanctioned post of
clerk.
III. Considering that the post was not a regular or sanctioned post, the
first respondent cannot be deemed to have gained experience of
working in the same or higher post, as required by the
Advertisement.
IV. Experience Certificate was not issued by the University but rather
by Lavnya. Merely because it was countersigned by the Head of
the Department does not make it a certificate issued by the
University. Attention was drawn to the Circular dated 25.06.2014,
which prohibits issuance of an experience certificate by any
authority where persons are engaged through a service provider,
i.e., under Part I of the Outsourcing Policy.
V. The High Court overlooked the fact that the first respondent’s
application described her engagement for the concerned time
period as contractual employment and that her employer was the
University, which is incorrect as the first respondent was neither
appointed by the University nor ever worked with the University
on any temporary or permanent post.
Page 6 of 18
VI. The first respondent has not submitted the valid experience
certificate issued by the department / board / corporation /
company / statutory body / commission / authority of the
Government of Haryana; therefore, the scrutiny committee has
not considered the so-called experience of the first respondent and
allotted her marks which is justified on facts and in the
circumstances.
VII. The last candidate who was selected (securing 75 marks) is still 8
ranks higher than the first respondent. If the relief granted by the
High Court is upheld, then the seniority of the appointed
candidates will have to be disturbed. Moreover, the select list
having been exhausted, the appointment cannot be given to the
first respondent.
7. Based on these grounds, interference with the impugned judgment and
order of the Division Bench was claimed by the University.
8. Representing the first respondent, her learned counsel contended that
the judgment and order of the Single Judge is well-considered and well-
reasoned; hence, it is unexceptionable and no interference is warranted.
9. It was further contended that:
I. The first respondent though had rendered services to the
University on contract, she had done the work like other similarly
situated persons working under either the outsourcing policy or on
regular basis.
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II. As per the Policy, the essential requirement of experience is that
the candidate must be working in any department of the
Government of Haryana irrespective of the mode of recruitment
because government institutes can hire manpower in any of the
two modes and in both the cases, work is done in the government
department.
III. The University did not disclose the fact that the post of Clerk-cum-
Typist is a sanctioned post.
IV. Denying marks of experience to the first respondent is
unreasonable, arbitrary and violative of Articles 14, 15, 16, 19 and
21 of the Constitution of India.
V. The last candidate selected in the general category secured 76
marks and if the mark (0.5) for experience is granted to the first
respondent, she would enter the zone of selection for appointment
on the post of clerk.
VI. There are 13 posts lying vacant and the selection list is valid for
one year.
VII. That in the case of Sachivalaya Dainik Vetan Bhogi
9
Karamchari Union v. State of Rajasthan & Ors. , this Court
upheld the policy of the State of Rajasthan for giving weightage to
the services rendered by the employees, where services were used
by the State either temporarily or on ad-hoc basis.
9
(2017) 11 SCC 421.
Page 8 of 18
nd
VIII. The University has also issued 2 Appointment List wherein, two
candidates who have secured 75 marks have been selected and
appointed for the said post, i.e., the third and the fourth
respondent.
10. Learned counsel concluded by submitting that the University read words
in the Advertisement to exclude the first respondent from the zone of
consideration, which was rightly interdicted by the Single Judge and the
Division Bench in its concurrent findings. As a sequel thereto, the appeal
deserves outright dismissal.
NALYSIS ND EASONS
A A R
11. The crux of the dispute is whether the first respondent, in terms of the
Advertisement, was eligible to be awarded half a mark (0.5) under the
category of ‘experience’ vis-à-vis her engagement as outsourced
manpower for the concerned time period, in light of the Rules and
Circulars of the SoH as adopted by the University.
12. It is an admitted fact that the first respondent was appointed under Part
I of the Outsourcing Policy, which relates only to employment made when
no sanctioned post exists. Although the first respondent has urged that
the University has not disclosed the existence of a sanctioned post either
before the High Court or this Court, nothing turns on it. It is not in
dispute that the first respondent was never directly appointed by the
University on any sanctioned post of Clerk. Having regard to the
Outsourcing Policy, through which the first respondent came to be
appointed, we shall proceed with our analysis resting on the premise
Page 9 of 18
that no sanctioned post of Clerk existed at the time when the first
respondent was first engaged in the University through the service
provider or, even if one existed, the first respondent could not have been
accommodated there at the relevant time.
13. The point that would engage our consideration in this case is whether
the noun ‘post’ in the subject advertisement would invariably mean a
sanctioned post and whether a candidate would not be eligible for mark
for experience if he/she has not worked on a regular/sanctioned post.
14. We have not been referred by the parties to any precedent having a
direct bearing on the question arising for decision here. However, prior
to looking at the Advertisement, it would be worthwhile to bear in mind
what this Court held in the decisions noted below.
10
15. In Dr. Kumar Bar Das v. Utkal University , a case concerning the
provision of marks for experience in connection with recruitment, a 3-
Judge Bench of this Court noted that one must not apply the words in
the advertisement in a technical sense but must rather give effect to the
words mentioned in the advertisement:
“29. No doubt, in clause 9 of the endowment, it was stated that
the procedure for selection would be the same as followed for a
Professor's selection. This, in our view, was referable merely to the
procedure. If the advertisement stressed on the research
experience also and not merely the teaching experience, the
column in the pro forma for awarding marks when it referred to
‘teaching experience’ has to be treated as one meant to cover
teaching and research experience. The Selection Committee and
the Syndicate followed the right procedure but the Chancellor went
wrong in confining himself to the actual language of the pro forma
and in omitting to give effect to the words ‘and/or research
experience’ contained in the advertisement and the UGC
Regulations. This, in our view, is a clear illegality in the order of
10
(1999) 1 SCC 453.
Page 10 of 18
the Chancellor. The High Court ought to have, therefore, come to
the rescue of the appellant and set right the illegality.”
(emphasis supplied)
11
16. Dr. (Major) Meeta Sahai v. State of Bihar arose out of a case where
the advertisement provided for the grant of marks for work experience
after appointment on a regular/contract basis in the government
hospitals. In the advertisement, it was also stated that only work
experience in government hospitals of the Government of Bihar would
be counted for this purpose. This Court, therefore, in interpreting the
term “government hospital” held:
“20. It is a settled canon of statutory interpretation that as a first
step, the courts ought to interpret the text of the provision and
construct it literally. Provisions in a statute must be read in their
original grammatical meaning to give its words a common textual
meaning. However, this tool of interpretation can only be applied
in cases where the text of the enactment is susceptible to only one
meaning. [Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271,
para 13.] Nevertheless, in a situation where there is ambiguity in
the meaning of the text, the courts must also give due regard to
the consequences of the interpretation taken.
…
23. …The phrase ‘government hospital’ therefore cannot be
construed to exclude other non-private hospitals which are
otherwise run exclusively with the aid and assistance of the
Governments. Additionally given the difference in common usage
wherein ‘government hospital’ refers to all non-private hospitals
and not hospitals established by a particular Government, Rules 5
& 6(iii) would not be bound by Rule 2(a).”
(emphasis supplied)
17. The first respondent has also referred us to the decision of Sachivalaya
Dainik Vetan Bhogi Karamchari Union (supra). It would be
appropriate to delve into the facts in that case before deciding the
11
(2019) 20 SCC 17.
Page 11 of 18
applicability of the law laid down therein in this present dispute. In that
case, the members of the Workers Union were Class-IV employees. The
employees filed a writ petition seeking regularisation of service. When
the writ petition came up for hearing, it was represented that the dispute
was settled out of Court and the terms were reduced to writing.
Thereafter, the respondent issued an advertisement inviting tenders
from contractors for the supply of Class IV employees. The Workers
Union approached the High Court once again by way of a writ petition
challenging the advertisement on the ground that those conditions were
contrary to the settlement. During the pendency of this writ petition,
another advertisement was invited and the respondent decided to
provide some weightage in favour of the members of the Union by taking
a decision to accord certain bonus marks in favour of those who had
been working with the Department on a temporary basis. This decision
of the respondent was once more challenged and the High Court ruled
that the grant of these marks was arbitrary and directed that a lower
weightage be given. Aggrieved, the State of Rajasthan carried the matter
to this Court. During its pendency before this Court, an Hon’ble Division
Bench of the Rajasthan High Court ruled in the pending writ petition [WP
No. 3235/2004] that the settlement entered into between the parties
cannot be enforced due to the decision of the Supreme Court in
12
Secretary, State of Karnataka v. Umadevi (3) . While this Court,
no doubt, upheld the settlement deed wherein the respondent awarded
12
(2006) 4 SCC 1
Page 12 of 18
bonus marks to the candidates for working in certain ad-hoc positions,
it did so in the background of the complex and labyrinthine facts and
circumstances that had played out before the Rajasthan High Court.
There is no doubt in our mind that this case must be distinguished from
the instant case as it does not lay down a general rule regarding the
provision of experience marks while working in a contractual/non-regular
post, but rather is limited to the enforcement of an already existing
settlement agreement between the State and the concerned contractual
employees.
18. In a different context, where promotion was the matter of concern before
13
this Court in Union of India v. M. Bhaskar , it was held that:
“15. The aforesaid decision has been challenged in this appeal by
the Union of India by contending that 2 years’ period of experience
has to be reckoned, not from 11-10-1988, but from 21-9-1989.
There is no dispute that the eligibility condition is 2 years’
experience in Grade II. Now, this respondent having really started
working in Grade II pursuant to the order of 21-9-1989, he could
not have gained experience prior to the date he had joined
pursuant to this order. The mere fact that his promotion in Grade
II was notionally made effective from 11-10-1988 cannot be taken
to mean that he started gaining experience from that day, because
to gain experience one has to work. Notional promotions are given
to take care of some injustice, inter alia, because some junior has
come to be promoted earlier. But we entertain no doubt that the
person promoted to higher grade cannot gain experience from the
date of the notional promotion; it has to be from the date of the
actual promotion.”
(emphasis supplied)
19. Also, while not a decision related to service jurisprudence, in P
14
Kumaraswamy v. State Transport Appellate Tribunal, Madras ,
13
(1996) 4 SCC 416
14
(1976) 1 SCC 373.
Page 13 of 18
this Court held that the rule that prescribes marks to applicants who
have business or technical experience in the road transport service, did
not make any distinction between passenger transport or lorry transport.
Upon a perusal of the decision, it is clear that a literal reading of the
applicable framework is essential for any determination.
20. Taking a cue from the aforesaid decisions, our observation is this. It
cannot be gainsaid that even though the modalities for engagement of
two individuals for executing similar nature of work could differ, there
can be no quarrel that none can gain experience without being asked to
work. One vital difference in working on a sanctioned post as a
permanent employee and being employed in the exigencies of
administration without having a right to post is that in the former, the
appointee enjoys procedural safeguards bringing in a sense of security
of service in him while in the latter the individual concerned may not
have any such sense of security. But, in case, both perform the work of
clerks, the experience gained would not be much at a variance subject,
of course, that the job requirement is not too different. It would also be
relevant to bear in mind stipulations in the advertisement if, at all, they
call for any special requirement for marks to be secured for experience,
viz. previous service rendered on a sanctioned post or if salary, as is
specified, has to be received for service rendered in order to be eligible
to apply.
21. Moving on to the Advertisement in this case calling for our attention, we
find that it required:
Page 14 of 18
“(d) Experience: One half (= 0.5) mark for each year or part
thereof exceeding six months of experience, out of a maximum of
10 years, on the same or a higher post in any Department/Board/
Corporation/Company/Statutory Body/Commission/Authority of
Government of Haryana. No marks will be awarded for a period
less than six months.
(a maximum of 5 marks)”
22. A literal reading of the terms relating to experience confirms that marks
could be secured by an aspirant for experience gathered while working
in the enumerated departments of the Government of Haryana; however,
while referring to ‘same or a higher post’, the term ‘sanctioned’ as a
prefix is conspicuous by its absence. Additionally, neither the
Outsourcing Policy nor the Advertisement defines the word “post”. What
follows is that an aspirant, to secure mark for experience, must prove
with documents that he/she has been employed for performing work of
the nature required by the same or a higher post. Importantly, it has not
seen shown that either the Recruitment Rules or the Advertisement
specifically bar(s) aspirants from securing marks for experience sained
from contractual / outsourced employment. Thus, we have no hesitation
to hold that the mode of employment is not the primary concern. To our
mind, the primary concern is the nature of work performed and whether
the work undertaken by the candidate has any nexus with the purported
work to be undertaken during the course of regular service. That the first
respondent had rendered service for a statutory body in excess of six
months and is, therefore, covered by the last part of clause (d) does not
admit of any doubt and hence, she had a valid claim for securing 0.5
mark for experience.
Page 15 of 18
23. The state policy, specifying that the individual must have worked on a
post equal to or higher than the advertised posts in any of the
enumerated departments to secure marks for experience, also reflects
the state’s belief that the experience in such departments is directly
relevant to the advertised posts. It is not open for the University to now
deny marks on the basis of a technical procedural deviation that the
experience certificate was not issued by the University, but rather by the
service provider. While we accept the contention raised by the University
that the certificate was per se not issued by it, the fact that it was
countersigned by the Head of the Department validates the first
respondent’s claim that she had indeed gained certain experience which
deserved to be given credit.
24. We also do not agree with the contention of the University that the first
respondent did not work on the post of Clerk and rather performed
“office work”. The certificate awarded to her evidently mentions that the
work she was required to undertake is the work of Clerk-cum-Typist.
Moreover, the certificate also mentions that her work was found quite
satisfactory. The first respondent has also brought on record a memo by
the Professor and Head of the Department which specifically
acknowledges that she has been designated as a Clerk-cum-Typist during
her tenure.
25. The first respondent, thus, cannot be denied the benefit of mark for
experience merely because at the time of appointment as outsourced
manpower, she was not appointed on a sanctioned post.
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26. The true thrust of every selection process ought to be to find out and
select suitable candidates, having experience in the related work and
fulfilling other criteria, from among eligible candidates and to go ahead
with appointing the more meritorious of those found suitable. If indeed
an individual without having any security of service performs up to the
mark and receives commendation from none other than the Head of the
Department, who must have closely watched his/her performance, it
would occasion a failure of justice to exclude such individual for no better
reason than that he/she did not work on a sanctioned post. If indeed
such be the requirement, it had to be made explicitly clear in the
Advertisement without any ambiguity so as not to generate false hopes
in the minds of individuals aspiring for public employment. Any other
view would be against both the principles of equality and non-
arbitrariness enshrined in the Constitution as well as principles of natural
justice. Tested on the touchstone of Articles 14 and 16, the impugned
decision of the University cannot sustain.
27. An underlying current throughout the Constitution is the theme of “social
justice”. The Preamble, as well as Article 38 of the Constitution, enjoins
upon the State instrumentalities the duty to promote the welfare of the
people by securing and protecting, as effectively as it may, a social order,
in which justice – social, economic and political – shall inform all the
institutions of national life and endeavour to eliminate inequalities in
status, facilities and opportunities. Whenever a conflict arises between
the powerful and the powerless, social justice commands the Courts to
Page 17 of 18
lean in favour of the weaker and poorer sections where the scales are
evenly balanced.
28. In this case, for the foregoing reasons, refusal to award any mark for
experience to the first respondent would go against the grain of the
constitutional duty of ensuring equality and securing social justice for
the deprived.
C ONCLUSION
29. Bound as we are to apply the Constitutional mandate prescribed in
Articles 14 and 16 read with the preambular promise of securing social
justice, we hold that non-grant of mark for experience to the first
respondent was not proper and legal.
30. For reasons somewhat different from those assigned by the High Court,
we concur with the ultimate conclusion and hold that the impugned
judgment and order of the Division Bench of the High Court warrants no
interference. The same is, thus, affirmed.
31. The appeal is, accordingly, dismissed without any order for costs.
………………………………J.
(DIPANKAR DATTA)
………………………………J.
(R. MAHADEVAN)
New Delhi;
November 29, 2024.
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