Case: RITU BHATIA Vs. MINISTRY OF CIVIL SUPPLIES CONSUMER AFFAIRS AND PUBLIC DISTRIBUTION

it appears and even it can be seen from the relevant appointment orders, and even as per the case of the appellant that she was working as Assistant Company Secretary for the period between June 2008 to May 2010 in Utkal Investments Limited and that she was working as Management Trainee in the Delhi Stock Exchange Association Limited for the period between April 2005 to June 2006, and as the Management Trainee in ONGC for the period between May 2003 to June 2004. Her appointment as Management Trainee cannot be equated and/or considered as appointment ‘as’ a Company Secretary.7.3 The word ‘as’ used in the advertisement should be given a literal meaning. The respondent is the author of the advertisement and they are the best person to consider what they meant by using the word ‘as’. It is the specific case on behalf of the respondents that the intention behind the advertisement was that the applicant must have been appointed ‘as’ a Company Secretary in PSU/Company of repute and functioned as such for five years to be eligible for appointment. According to the respondent, the purpose was that the person should have held the position of a Company Secretary in a PSU/Company of repute and discharged the statutory functions as such i.e. should have held the position of responsibility. Therefore, when the word ‘as’ is specifically used, the same is to be considered strictly and therefore the experience of the appellant, while working as a ‘Management Trainee’ cannot be considered as an experience of working ‘as’ a Company Secretary and/or it cannot be said that she was appointed ‘as’ a Company Secretary. If the period during which the appellant had worked as a ‘Management Trainee’ is excluded, in that case, admittedly, the appellant would not be fulfilling the requisite eligibility criteria of having been appointed ‘as’ a Company Secretary in a PSU/Company of repute. It cannot be said that the appellant had, while working as a ‘Management Trainee’, functioned ‘as’ a ‘Company Secretary.7.4 If submission on behalf 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 fulfilled the eligibility criteria of having been appointed ‘as’ a Company Secretary, in that case, it would be against the intent. If the intention was such, in that case, the wording in the advertisement should have been that the candidate should have the experience of the similar nature of work as “Company Secretary”. In the advertisement, it has been specifically and categorically stated that a candidate shall have post qualification experience of five years ‘as’ Company Secretary. The word used “experience as Company Secretary” has to be given meaning that a candidate must have been appointed ‘as’ a Company Secretary and shall have actually worked ‘as’ a Company Secretary for five years. Giving other meaning would be changing the eligibility criteria as mentioned in the advertisement. As observed hereinabove, the appellant has no experience of five years ‘as’ Company Secretary, as she was appointed and/or worked as ‘Management Trainee’ or ‘Assistant Company Secretary’.7.5 Now, so far as the reliance placed upon the decision of this Court in Dr. Asim Kumar Bose (supra) by learned Senior Counsel appearing on behalf of the appellant is concerned, on considering the facts of the case before this Court, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. The facts before this Court in the aforesaid decision are distinguishable. In the aforesaid decision, the appellant was appointed to the Specialists’ Grade in substantive capacity as Radiologist in Irwin Hospital, Delhi which was a teaching hospital. He was considered as an Associate Professor of Radiology (ex officio) both by the Delhi University as well as by the Maulana Azad Medical College, Delhi to which Irwin Hospital was affiliated. He was not considered for the regular appointment to the post of Associate Professor of Radiotherapy in that college on the ground that his teaching experience as ex officio Associate Professor was not to be counted. Rule 8(2¬A) of the Central Health Service Rules was under consideration by this Court which provided that a candidate shall have the teaching experience as an Associate Professor. The appellant was having the experience as an Associate Professor of Radiology (Ex¬officio) and therefore it was the case on behalf of the Union of India that he was not having the teaching experience as Associate Professor as he worked as an Associate Professor of Radiology (ex¬officio). To that, this Court observed and held that the provisions contained in Rule 8(2-A) and paragraph 3 of Annexure I to the Second Schedule of the Central Health Service Rules must be interpreted in a broad and liberal sense so as to avoid any injustice to person in specialists’ Grade like the appellant. This Court observed that the Rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital as an Associate Professor (ex officio) shall not be counted towards the requisite teaching experience. This Court further observed that there is hardly any difference so far as the teaching experience is concerned whether it is acquired on regular appointment or as specialist in a teaching hospital with the ex officio designation. It was thereafter further observed that the word ‘as’ in the collocation of the words used “at least six years’ experience as Associate Professor/Assistant Professor/Reader” and of the words “at least five years’ experience as Reader/Assistant Professor” in the relevant Rules must be interpreted in its ordinary sense as meaning teaching experience gained “in the capacity of”.7.6 In the present case, the word ‘as’ and the words ‘experience as Company Secretary’ used in the advertisement are very clear and as observed hereinabove it means the candidate ought to be appointed and worked as such ‘as’ a Company Secretary. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7.1 From the material on record, more particularly the application submitted by the appellant and the supporting self¬ attested documents and the certificates, it appears that according to the appellant she was having seven years and three months post qualification experience. The same is reproduced and considered by the High Court in para 3 of the impugned judgment and order.7.2 Considering the above, it appears and even it can be seen from the relevant appointment orders, and even as per the case of the appellant that she was working as Assistant Company Secretary for the period between June 2008 to May 2010 in Utkal Investments Limited and that she was working as Management Trainee in the Delhi Stock Exchange Association Limited for the period between April 2005 to June 2006, and as the Management Trainee in ONGC for the period between May 2003 to June 2004. Her appointment as Management Trainee cannot be equated and/or considered as appointmenta Company Secretary.7.3 The wordused in the advertisement should be given a literal meaning. The respondent is the author of the advertisement and they are the best person to consider what they meant by using the wordIt is the specific case on behalf of the respondents that the intention behind the advertisement was that the applicant must have been appointeda Company Secretary in PSU/Company of repute and functioned as such for five yearsto be eligible for appointment. According to the respondent, the purpose was that the person should have held the position of a Company Secretary in a PSU/Company of repute and discharged the statutory functions as such i.e. should have held the position of responsibility. Therefore, when the wordis specifically used, the same is to be considered strictly and therefore the experience of the appellant, while working as a ‘Managementcannot be considered as an experience of workinga Company Secretary and/or it cannot be said that she was appointeda Company Secretary. If the period during which the appellant had worked as a ‘Managementis excluded, in that case, admittedly, the appellant would not be fulfilling the requisite eligibility criteria of having been appointeda Company Secretary in a PSU/Company of repute. It cannot be said that the appellant had, while working as a ‘Managementa ‘Company Secretary.7.4 If submission on behalf of the appellant is accepted that by performing duties as ‘Managementshe was also performing some duties as ‘Companyand therefore she can be said to have fulfilled the eligibility criteria of having been appointeda Company Secretary, in that case, it would be against the intent. If the intention was such, in that case, the wording in the advertisement should have been that the candidate should have the experience of the similar nature of work as. In the advertisement, it has been specifically and categorically stated that a candidate shall have post qualification experience of five yearsCompany Secretary. The word usedhas to be given meaning that a candidate must have been appointeda Company Secretary and shall have actually workeda Company Secretary for five years. Giving other meaning would be changing the eligibility criteria as mentioned in the advertisement. As observed hereinabove, the appellant has no experience of five yearsCompany Secretary, as she was appointed and/or worked as ‘Managementor ‘Assistant CompanyNow, so far as the reliance placed upon the decision of this Court in Dr. Asim Kumar Bose (supra) by learned Senior Counsel appearing on behalf of the appellant is concerned, on considering the facts of the case before this Court, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. The facts before this Court in the aforesaid decision are distinguishable. In the aforesaid decision, the appellant was appointed to theGrade in substantive capacity as Radiologist in Irwin Hospital, Delhi which was a teaching hospital. He was considered as an Associate Professor of Radiology (ex officio) both by the Delhi University as well as by the Maulana Azad Medical College, Delhi to which Irwin Hospital was affiliated. He was not considered for the regular appointment to the post of Associate Professor of Radiotherapy in that college on the ground that his teaching experience as ex officio Associate Professor was not to be counted. Rule 8(2¬A) of the Central Health Service Rules was under consideration by this Court which provided that a candidate shall have the teaching experience as an Associate Professor. The appellant was having the experience as an Associate Professor of Radiology (Ex¬officio) and therefore it was the case on behalf of the Union of India that he was not having the teaching experience as Associate Professor as he worked as an Associate Professor of Radiology (ex¬officio). To that, this Court observed and held that the provisions contained in Rule 8(2-A) and paragraph 3 of Annexure I to the Second Schedule of the Central Health Service Rules must be interpreted in a broad and liberal sense so as to avoid any injustice to person inGrade like the appellant. This Court observed that the Rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital as an Associate Professor (ex officio) shall not be counted towards the requisite teaching experience. This Court further observed that there is hardly any difference so far as the teaching experience is concerned whether it is acquired on regular appointment or as specialist in a teaching hospital with the ex officio designation. It was thereafter further observed that the wordin the collocation of the words usedexperience as Associate Professor/Assistantand of the wordsexperience as Reader/Assistantin the relevant Rulesmust be interpreted in its ordinary sense as meaning teaching experience gained7.6 In the present case, the wordand the words‘experience as Companyused in the advertisement are very clear and as observed hereinabove it means the candidate ought to be appointed and worked as sucha Company Secretary. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.