Eligibility conditions while hiring must be strictly adhered to: Delhi High court

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: August 04 2021 W.P.(C) 132 2021 DEVASTOTRA PODDAR & ANR. Through: Mr. Samrat Nigam and Mr. Abhimanyu A. Walia Advs. Petitioner FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA & Respondents ORS. Through: Mr. Aditya Singla Ms. Cheshta Jetly and Mr. Utsav Vasudeva Advs. for R 1 Mr. Abhinav Govind Jee Adv. for R 9 Mr. Shanker Raju and Mr. Nilansh Gaur Advs. for R 13 & R 14 HON BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO J.The present petition has been filed by two petitioners with the following prayers: “The Petitioner therefore prays that this Hon’ble Court may graciously be pleased to: a) Issue a Writ Order or Direction for quashing and setting aside of the Result Notice dated 24.12.2020 qua the candidates to have been illegally the post of Assistant Director Technical) as published by the Respondent No.1 Food Safety and Standards Authority of India. Page 1 b) Direct the Respondent No.1 to appoint candidates as per the Appointment Recruitment Notice No. DR 02 2019 dated 26.03.2019 c) To remove all the names of all the contractual employees of FSSAI working as Technical Officer at pay Level 7 and level 8 from the list of candidates for the post of Assistant Directorc) Pass such other or further orders or directions this Hon’ble Court may deem just and appropriate in the facts and circumstances of the case and in the interest of justice d) costs.” In substance the petition has been filed by the petitioners challenging the result notice dated December 24 2020 whereby the respondents have selected appointed 13 persons including the respondent Nos.3 to 12 to the post of Assistant Director Technical). The petitioners have also challenged appointment of the respondent Nos.13 to 17 as Assistant Director Technical). The petitioner No.1 has done Doctorate in Food Technology from New Zealand and belongs to Scheduled Caste category. The respondent No.1 had issued an advertisement for filling up of various posts including 13 posts of Assistant Director was through a Computer Based Test followed by written examination and interview. The CBT was held on July 24 2019. Similarly the written examination was held on October 10 2020. A communication notice was published on November 10 2020 by the respondent No.1 publishing provisionally list of successful candidates who were to be called for interview. The respondent No.1 conducted interview for 75 candidates. The result for the same was published on December 24 2020 wherein the names of respondent Nos.3 to 12 also features and accordingly they have been issued appointment letters to the post of Assistant Directorcontemplated under heading Note 1 that out of the total experience of five years sought for the post of Assistant Director two years of experience should be in immediate lower pay level in central dearness allowance which the respondent Nos.3 to 12 did not have. This according to him was due to the fact that the respondent Nos.3 to 12 being contractual Technical Officers Page 3 were working on consolidated pay aligned with pay level 7 which is in the pay band of Rs.44 900 1 42 400 with grade pay of Rs.4600 whereas the immediate lower pay level in central dearness allowance of pay level 10 is pay level 9 in Rs.53 100 1 51 100 with grade pay of Rs.5400 . In this regard he has drawn my attention to the Food Safety and Standards Authority of India Regulations 2018 ‘Recruitment Rules’ for short) annexed by the respondent No.1 in its counter affidavit more specifically page 25 at Note 1 which according to him clearly stipulates that it is the immediate lower pay level in the central dearness allowance as the eligibility condition for direct recruitment. He submits that the Recruitment Rules are in vogue need to be followed Mr.Nigam contest the stand taken by the respondent No.1 in its counter affidavit that the respondent Nos.3 to 12 have been considered for the post as the same is a post in technical cadre and the feeder post for Assistant Director Technical) is Technical Officer on which post respondent Nos.3 to 12 were working on contract basis as untenable. In this regard he has again drawn my attention to the Recruitment Rules to state that the Recruitment Rules contemplated different eligibilities for promotion and direct recruitment to the post of Assistant Director for which the advertisement has been issued has to be filled through direct recruitment it is the eligibility as prescribed for making direct recruitment that need to be adhered to that is Note 1 out of five years of relevant experience two Page 4 years of experience should be in immediate lower pay level in central dearness allowance. Admittedly the respondent Nos.3 to 12 do not have the experience of two years in immediate lower pay level in central dearness allowance i.e. pay level 9 even on consolidated basis. In support of his submission Mr.Nigam has drawn my attention to various provisions of the advertisement. It may not be necessary for me to refer to them as I intend to deal with the same in my findings below. Mr. Aditya Singla learned counsel for the respondent No.1 has reiterated the stand taken by the respondent No.1 in its counter affidavit. It is his submission that the Recruitment Rules have to be read in conjunction with the advertisement issued by the respondent No.1 by drawing my attention to page 39 of the paper book to draw my attention to Note 1 which states out of five years of relevant experience two years of experience should be in immediate lower pay level in the central dearness allowance which has been made comparable with minimum annual cost to company of Rs.9.7 Lacs for last two years. According to Mr.Singla the advertisement render the respondent Nos.3 to 12 as eligible for being considered for the appointment to the post of Assistant Director is also Technical Officer which is in pay level 7 and the respondent Nos.3 to 12 who were working on contractual basis were eligible for appointment. Mr. Shanker Raju learned counsel for the respondent Nos.13 and 14 would contest the challenge to the appointment of Page 5 the said respondents in the writ petition by stating that there are no averments made by the petitioners in the petition as to how the appointment of the respondent Nos.13 and 14 is illegal. That apart he stated that the said respondents were working as Consultants in pay level 10 and as such were eligible for being considered and appointed as Assistant Director for the concerned post at pay level 10 even though it can be clearly found from details of the posts advertised that the immediate lower pay in the relevant department was that of Technical Officer only. According to him once a candidate participates in a selection without demur taking a calculated chance to get selected they cannot turnaround and challenge the criteria of selection. He relied upon the judgment in the case of Madan Lal and Ors. v. State of J&K and Ors. 3 SCC 486. On similar proposition he has relied upon the judgment in the case of Manish Kumar Sahi v. State of Bihar and Ors. 12 SCC 576 Madras Institute of Development Studies and Anr. v. K. Sivasubramaniyan and Ors. 1 SCC 454 and Ashok Kumar and Anr. v. State of Bihar and Ors. 4 SCC 357. He further submits that the present petition is not maintainable as in the petition the petitioners have alleged Page 6 irregularities in a fairly conducted selection process that too at a stage when selection is complete and successful candidates are discharging their duties. Further on perusal of “Note 1” under column elucidating the ‘Minimum Educational Qualifications Work Experience’ provided in the advertisement that out of the total experience sought by the organization from the candidates for the post of Assistant Director two years should have been in ‘immediate lower pay level’ in central dearness allowance or equivalent industrial dearness allowance scaleand in case of candidates working in private sector he or she shall be drawing minimum annual cost to company of Rs.9.7 Lacs for the last two years. However sticking narrowly to the said portion of the advertisement to determine the bracket of eligible candidates would be a gross error in judgment. That apart the post being technical post requiring special domain knowledge and the respondent No.1 was well aware to the situation where many otherwise eligible and qualified candidates possessing adequate work experience in the relevant field would stand unfairly excluded. He submitted that the lower pay level to pay level 10 is pay level 7. There exist no other pay levels between the aforesaid posts. Post at pay level 8 was introduced for the first time purportedly through the notification of 2019. Post at pay level 9 neither existed nor was it advertised in the notification in question. He submits that the respondent No.1 was conscious of the existing pay level vis à vis employees working in the Page 7 organization. Therefore to rectify this anomaly the respondent No.1 adopted an inclusive approach and carved out the eligibility for its Technical Officers by introducing Note 2 under the column of concerned post at page 11 point V VI and point ‘j’ under the heading ‘GENERAL INSTRUCTIONS’ on a combined reading it can be easily inferred that the respondent No.1 never intended to give a pedantic and literal interpretation to the term ‘immediately lower pay level’ so as to mean level 9. If this was not the case the respondent No.1 would have the application and cancelled candidature of its contractual Technical Officers. But the fact remains they were allowed to sit in exam and were also successful for appointment. Hence it is a case where this Court would not unsettle the settled position. In this regard he has relied upon the judgment in the case of Babita Prasad & Ors. v. State of Bihar & Ors. 1993 Supp.SCC 268. He concluded his arguments by submitting that the respondent No.1 being an autonomous statutory body which performs governmental functions of a specific nature to discharge such functions it requires candidates with specific skill and qualification and the respondent No.1 is well within its right to publish the recruitment notification and prescribe eligibility criteria as per the need and requirement of the organization. He seeks the dismissal of the petition. Having heard the learned counsel for the parties at the outset I may state that on January 13 2021 notice was also issued to respondent Nos.3 to 17. The said respondents have been Page 8 served as is clear from the affidavit of service filed by the counsel for the petitioners. Though the respondent Nos.13 and 14 are represented in these proceedings and have filed their counter affidavit none of the other respondents have appeared and filed their pleading except respondent No.9 on whose behalf submissions have been made by Mr. Govind Jee which have been already noted above. At the outset I may state that Mr.Nigam has only made one submission which is noted above. The short issue which arises for consideration is whether for making appointment to the post of Assistant Directoron direct recruitment basis can a contractual employee drawing pay in pay level 7 be considered. The Recruitment Rules as filed by the respondent No.1 at annexure A I shows that the same have been framed under sub section of section 92 of the Food Safety and Standard Act 2006 duly notified on October 01 2018 and as such statutory in nature. To answer the issue it is necessary to reproduce the relevant part of the advertisement Recruitment Rules on which much of the arguments of the counsel for the parties revolved. The same is the educational and other qualifications stipulated for the posts of Assistant Director and approved by the Food Authority from time to or B.Tech in Food Technology or Biotechnology or Oil Technology or Food Process Processing Technology or Fruit Vegetable Technology or Safety & Quality Assurance or Bachelor s degree four years in Medicine Page 10 sciences or Fisheries or Animal BE or B.Tech in Food Technology or Dairy Technology or Biotechnology or Oil Technology or Food Process Engineering or Food Processing Technology or Fruit & Vegetable Technology or Food Safety & Quality Assurance or Bachelor’s degree in Medicine or Veterinary sciences or Fisheries or Animal Sciences. Desirable qualification: Doctorate the aforesaid subjects And in any of ii) five Years relevant experience. Desirable: Graduate Aptitude Test Engineering or Council of Scientific and Industrial Research or Indian Council of Agricultural Research National Eligibility Test. Note 1: Out of the total experience sought two years of experience should be in immediate lower pay level in central dearness allowance industrial dearness or equivalent allowance scale and in case of candidates working in private sector he or she shall be drawing minimum annual cost to company of Rs 9.7 lakh for last two Note 2: Qualifications are relaxable at the discretion of the competent authority in the case of candidates otherwise well qualified. Note3: The qualification(s) regarding discretion of the competent authority in the case of candidates belonging to Scheduled Castes or Scheduled relaxable at Veterinary sciences or Fisheries or Animal Sciences or any other subject as approved by Food Authority from time to time. Desirable qualification: Doctorate Degree in any of the aforesaid subjects experience Years Desirable: Graduate Aptitude Test Engineering or Council of Research or Indian Council of Agricultural Research National Eligibility Test. Note 1: Out of experience sought two years of immediate lower pay level in central dearness allowance or equivalent industrial dearness allowance scale in case of candidates working in private sector he or she shall be drawing minimum comparable annual cost company for last two years to be decided by authority and shall be indicated in the advertisement on each Note2: Qualifications relaxable at the discretion of the competent authority in the case of candidates otherwise well relaxable at the discretion of the competent authority in the case of candidates belonging Page 11 Tribes if at any stage of selection the competent authority is of the opinion that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up the vacancy reserved for them.” Scheduled Castes or Scheduled if at any state of selection authority is of the opinion that sufficient number of candidates experience are not likely to be available to fill up the vacancy reserved for them. emphasis supplied) That apart learned counsel for the parties have also relied upon the point V and VI of the Recruitment Advertisement Notice No.DR 02 2019 dated March 26 2019 published by respondent No.1 which are reproduced as under: “V. The contractual employees of FSSAI who are being given consolidated pay aligned with government pay structure are allowed to apply for the similar post or one higher post subject to the other conditions of eligibility prescribed in the direct recruitment advertisement. In case of contractual employees from other Govt. bodies the applicant will have to submit whenever required to do so a certificate from their present employer stating that their consolidated pay is aligned with the particular government scale in their department. VI. All persons on contract in the services of the Authority on the date of notification of Recruitment Regulations shall be eligible weightage in selection process. The weightage shall Page 12 be given on two parameters viz. number of years of service rendered in the Authority plus Performance Appraisal should not exceed 10% of the total score for the entire selection process.” They also relied upon the clause ‘j’ which stipulates the posts are also open to the employees of Food Authority who satisfy the eligibility criteria. Their status as staff candidate shall be verified at the time of interview. A perusal of the advertisement and Recruitment Rules would show that for the direct recruitment a candidate apart from having educational qualifications as stipulated therein must necessarily have five years of relevant experience. The five years experience sought should include two years of experience in immediate lower pay level in the central dearness allowance or equivalent industrial dearness allowance scale and in case of candidate working in private sector he or she shall be drawing minimum comparable annual cost to company for the last two years to be decided by the competent authority and shall be indicated in the advertisement on each occasion. Whereas the advertisement stipulated the same conditions except in case of candidates Page 13 working in private sector he or she shall be drawing minimum annual cost to company of Rs.9.7 Lacs for the last two years. No doubt this stipulation has been incorporated to show the equivalent pay in private sector which commensurate the immediate lower pay level in central dearness allowance or industrial dearness allowance scale but stipulation shall not be applicable as the respondent Nos.3 to 12 were working in FSSAI itself and not in a private company. In any case the respondent No.1’s case is not that the respondent Nos.3 to 12 were drawing salary equivalent to pay level 9 for the last two years or that Rs.9.7 Lacs is equivalent to pay level 9. In fact point V on which reliance has been placed by Mr.Singla in support of his submissions that the respondent Nos.3 to 12 being contractual Technical Officers could have applied for the post is also not appealing. The advertisement which I have reproduced above stipulates that contractual employees of FSSAI who are being given consolidated pay aligned with government pay structure are allowed to apply for similar post or one higher post subject to other conditions of eligibility prescribed in the direct recruitment advertisement which means a contractual employee can be allowed to apply for a similar post i.e. pay level 10 or one higher post i.e. to be in pay level 9 for applying to a higher post in pay level 10. If the plea is accepted then the experience of two years required in immediate lower pay level in the Note 1 shall lose its relevance moreover point V states subject “to the other conditions of eligibility prescribed in the direct recruitment advertisement” which Page 14 means the condition of lower pay level needs to be satisfied as the same is prescribed under direct recruitment and also in the advertisement. Concedingly none of the respondent Nos.3 to 12 have two years of experience in the immediate lower pay level in the central dearness allowance i.e. pay level 9 even on consolidated basis. If that be so they could not have been considered for appointment to the post of Assistant Directorhas no applicability in the facts of this case as the appointment of the respondent Nos.3 to 12 being contrary to the Recruitment Rules there cannot be any estoppel against law regulations framed under a Statute. Similarly the reliance placed by Mr.Govind Jee on the judgments in the case of Manish Kumar Sahi Madras Institute of Development Studies and Anr. and Ashok Kumar and Anr.on similar proposition of law also have no applicability. The plea of Mr.Govind Jee that the lower post to Assistant Director (in pay level 10) is that of Technical Officer and no posts exist between them in the FSSAI is also not appealing. This I say so as the Recruitment Rules with regard to Technical Officer contemplates grant of scale of pay levels 8 and 9 on completion of particular years of service. The pay level 9 is not alien to the Recruitment Rules. Even otherwise the respondent No.1 could have amended the Recruitment Rules with regard to direct recruitment to include the pay level 7 in the zone of consideration. Further it is not the case of the respondent No.1 that relaxation of experience was granted in favour of respondent Nos.3 to 12. Insofar as the judgment in the case of Babita Prasad & Ors. relied upon by Mr.Govind Jee in support of his Page 16 submission that the Court would not unsettle the settled position is concerned the said submission is not appealing for the simple reason that this Court while issuing notice on the writ petition on January 13 2021 has clearly stated that appointments made pursuant to the result dated December 24 2020 to the post of Assistant Directorshall be subject to the outcome of the writ petition and this aspect has been clearly mentioned by the respondent No.1 in the appointment letters issued to the respondent Nos.3 to 12. Hence it cannot be said that the position of appointment of respondent Nos.3 to 12 is a settled one. In view of my above discussion the impugned result notice dated December 24 2020 insofar as the selection of the respondent Nos.3 to 12 is concerned the same is held as illegal. The selection of the respondent Nos.3 to 12 is set aside. Consequently their appointments are also set aside. The respondent No.1 is within its right to prepare a fresh selection list for filling up the ten posts vacancies which now arise in view of this order as per the selection criteria evolved by it and then proceed accordingly. The writ petition with regard to respondent Nos.13 to 17 is dismissed. The petition is disposed of to the aforesaid extent. No costs. V. KAMESWAR RAO J AUGUST 04 2021 aky Page 17 

Summary: Strict adherence to conditions mentioned in the advertisement for a job hiring must be followed while being considered for a post. If such an adherence is not made, they cannot be considred for the post and the appointment of such Individuals is illegal. This was held by the Hon’ble Justice V. Kameswar Rao in the case of Devastotra Poddar &amp; ANR. Vs. Food Safety And Standards Authority Of India and Ors. [W.P.(C) 132/2021] on the 04th of August 2021 before the Hon’ble High Court of Delhi. The brief facts of the case are, the petition has been filed by the petitioners challenging the result notice dated December 24, 2020 whereby the respondents have selected / appointed 13 persons including the respondent Nos.3 to 12 to the post of Assistant Director. The petitioners have also challenged the appointment of the respondent Nos.13 to 17 as Assistant Director. The petitioner No.1 has done Doctorate in Food Technology from New Zealand and belongs to Scheduled Caste category. The respondent No.1 had issued an advertisement for filling up of various posts including 13 posts of Assistant Director. The petitioner No.1 being eligible for the said post, had also applied as an outside direct candidate. Similarly, the petitioner No.2 meeting the eligibility conditions, who belongs to OBC category, had also applied for the post of Assistant Director. The respondent Nos.3 to 12 were working as a Technical Officers on contract basis with the respondent No.1. According to the petitioners, the consolidated pay of the said respondent Nos.3 to 12 is aligned with pay level 7 or below. In terms of the advertisement, selection process for the post of Assistant Director (Technical) was through a Computer- Based Test (‘CBT’ for short) followed by written examination and interview. The CBT was held on July 24, 2019. Similarly, the written examination was held on October 10, 2020. A communication notice was published on November 10, 2020 by the respondent No.1 publishing provisionally list of successful candidates who were to be called for interview. The respondent No.1 conducted interview for 75 candidates. The result for the same was published on December 24, 2020, wherein the names of respondent Nos.3 to 12 also features, and accordingly, they have been issued appointment letters to the post of Assistant Director. The counsel for the petitioner submits that, e advertisement issued by the respondent No.1 for the post of Assistant Director contemplated under heading Note-1 that out of the total experience of five years sought for the post of Assistant Director, two years of experience should be in immediate lower pay level in central dearness allowance, which the respondent Nos.3 to 12 did not have. the immediate lower pay level in central dearness allowance of pay level 10 is pay level 9 in Rs.53,100- 1,51,100 with grade pay of Rs.5400/-. However, the respondents were working with a pay level of 7. The counsel for the respondents submits that, he Recruitment Rules have to be read in conjunction with the advertisement issued by the respondent No.1 by drawing the attention to page 39 of the paper book to draw my attention to Note 1 which states out of five years of relevant experience, two years of experience should be in immediate lower pay level in the central dearness allowance, which has been made comparable with minimum annual cost to company of Rs.9.7 Lacs for last two years. the advertisement render the respondent Nos.3 to 12 as eligible for being considered for the appointment to the post of Assistant Director (Technical). That apart, he states, the feeder posts to Assistant Director (Technical) is also Technical Officer which is in pay level 7, and the respondent Nos.3 to 12 who were working on contractual basis were eligible for appointment. Furthermore, it was also submitted that the lower pay level to pay level 10 is pay level 7. There exist no other pay levels between the aforesaid posts. Post at pay level 8 was introduced for the first time purportedly through the notification of 2019. Post at pay level 9 neither existed nor was it advertised in the notification in question.