Pradeep Ishwar Patil vs Oil And Natural Gas Corporation ...

                                                                                   NEUTRAL CITATION




    C/LPA/664/2022                             CAV JUDGMENT DATED: 09/11/2023

                                                                                    undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO.      664 of 2022

         In R/SPECIAL CIVIL APPLICATION NO. 8921 of 2021
                               With
             R/LETTERS PATENT APPEAL NO. 665 of 2022
                                 In
          R/SPECIAL CIVIL APPLICATION NO. 8582 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== PRADEEP ISHWAR PATIL Versus OIL AND NATURAL GAS CORPORATION LIMITED ========================================================== Appearance:

MR ZUBIN BHARDA, ADVOCATE with Ms. DIXA U PANDYA(9412) for the Appellant(s) No. 1 MR DEVANG VYAS, ADDL. SOLICITOR GENERAL WITH MR RITURAJ M MEENA(3224) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MS. JUSTICE NISHA M. THAKORE Page 1 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023 NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined Date : 09/11/2023 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Both these Letters Patent Appeals arise from common judgment and order dated 19.4.2022 passed by learned single Judge, dismissing the respective petitions.

2. Learned Single Judge held that the petitioners-candidates did not satisfy the conditions stipulated in the advertisements of having essential experience certificate at the time of applying for the post and that the exercise for obtaining the certificate was undertaken subsequently to produce the same later point of time. In the view of learned single Judge, there was failure on part of both the petitioners to comply with the terms and conditions of the advertisement regarding experience requirements.

2.1 The prayer made in the writ petitions before the learned single Judge was to direct the respondents to issue appointment letter to the respective petitioners for the post of Junior Security Supervisor pursuant to the advertisement No.1 of 2019.

3. Noticing the facts from the first captioned Letters Patent Appeal, the petitioner who belonged Page 2 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023 NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined to general category applied to the appointment for the post of Junior Security Supervisor pursuant to the 20 vacancies available. He appeared in the eligibility test, since he was eligible and in the merit list his name was short-listed. The petitioner thereafter was called for physical test along with the other candidates which test too was cleared by the petitioner. He was required to attend the document verification.

3.1 The facts of the case of the second petitioner is also on the same line. He was qualified in the computer examination conducted by the respondent Corporation and was called for document verification/skill test. His documents like the first petitioner were found to be in order and he was permitted for skill test. His grievance is also that despite clearing all stages of recruitment process, he was not given appointment.

3.2 Since the long period elapsed and the petitioners did not get any joining order, they obtained Right to Information channel to know that the authorities had made appointment without considering the merit list and without considering higher qualification of the petitioner and that though he was eligible for appointment to the post, he was denied the appointment.

NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined 3.3 The ground for not giving appointment order to both the petitioners-appellants herein was they submitted their experience certificates, issued after 20.02.2019, which was the cut-off date-the last date for making online application. It is the case of the appellants-petitioners that though they possessed the requisite experience as per the advertisement, the certificates produced by them were ignored and overlooked by the authorities and they were kept out of consideration for appointment.

4. Learned advocate Mr. Zubin Bharda with learned advocate Ms. Dixa Pandya highlighting the above facts, submitted that both the petitioners did have the requisite experience on the cut-off date, which was the date of submitting online application. It was submitted that experience was mentioned in the application which was submitted. It was also submitted that the factum of possessing the experience as required to be the part of eligibility was never disputed by the authorities. However, in the verification of the documents, the certificate produced was overlooked for their contents.

4.1 It was therefore submitted that when the petitioners were otherwise eligible on all the counts, the respondent authorities could have Page 4 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023 NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined called for the additional information, if it had any doubt with regard to experience certification of the petitioners. Had the authorities asked the petitioners, the petitioners could have clarified, but such opportunity was never given.

4.2 Learned advocate for the appellant relied on the following observations from the decision of the Supreme Court in Food Corporation of India vs. Rimjhim [(2019) 5 SCC 793], "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 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.

                                            (para 33)

4.2.1         It was stated further,

"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 Page 5 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023 NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined translation from English to Hindi and vice- versa and therefore fulfilled all the requisite essential requirements/ qualifications and therefore she was required to be considered for appointment on merits."

(para 33) 4.3 On behalf of the respondent, learned Additional Solicitor General Mr. Devang Vyas assisted by learned advocate Mr.Rituraj Meena submitted that the details produced by the petitioners with online application was not clear about the requirement of experience. It was submitted that during the document verification, since the facts were found to be incomplete to judge the eligibility, the candidature of the petitioners were liable to be discarded and were accordingly discarded. He relied on clause 7(d) of the advertisement, which stipulated that if false or wrong information was submitted by the candidate, the same would amount to disqualification and the Corporation would not be responsible for the consequences. It was reiterated that the experience certificate was required to be indicated by the candidates before the online application date. As stated above, the certification was produced but something in the nature of proof was wanted by the authorities.

5. Now, one of the condition in the advertisement was that the candidate must possess the essential Page 6 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023 NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined prescribed qualification on or before the last date of online application. It was clause no.9. The experience requirement was mentioned in clause 20 to be thus, "Experience for security and fire discipline should be from Government agency (State or Central) or any private limited company or any registered agency."

5.1 The certificates were to be produced at the time of skill test/uploading the documents. In paragraph 4 of the advertisement, following documents were mentioned, required to be produced on the last date of online application, which was 20.02.2019. The essential qualifications which was supposed to be in possession,

(i) Certificate of Competency as Electrical Supervisor (where applicable) (ii) 1st Clas Boiler Attendant Certificate (where applicable) (iii) Heavy Vehicle Driving License/3 years driving experience of heavy vehicle/loading & unloading. (where applicable) (iv) Training/Experience in Security/Fire (where applicable) (v)Registered with Pharmacy Council/Nursing Council (where applicable) (vi) Possession of Certificate/Diploma of minimum duration of 6 months in Computer Applications in the Office Environment (where applicable). (vii) First Aid Certificate (where applicable).

5.1.1 The post of Junior Security Supervisor provided to be filled under the said advertisement was A-1 level post carrying the pay-scale of Rs.

NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined 11,000-24,000/-. The minimum essential qualification provided for the post was intermediate and 6 months training/experience in security and fulfilment of physical standards, as provided.

5.2 Thus, the requirement included training/experience in security/fire certification. Also figures on record of both the petitions, the copy of the online application (pages 28-31). In case of the first petitioners, they had mentioned in the experience column that he had taken training/experience in the security from 11.02.2016 to 29.01.2018. The certification showing this experience figures on record of the petition, which was made available to the authority at the time of document verification. It was certified by the National Pension Office of the Indian Navy. It mentions the date of joining of the petitioner and date of discharge. The period of 11.02.2016 till 29.01.2018 stands as fortified by the said document of Indian Navy Certificate.

5.3 The facts in case of second petitioner were on similar line except the factual details.

5.4 Though relevant period of experience was mentioned in the certificate, it appears that no date was mentioned. In this regard, learned Page 8 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023 NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined advocate for the appellants drew attention of the Court to the internal guidelines produced along with the sur-rejoinder, wherein the committee observed that some of the experience certificates produced by the candidates at the time of verification did not have the date of issuance of the certificate. However, the candidates while uploading the application, did mention in their application form the period of service and service experience on the date of the application.

5.4.1 The issue was answered by this clarification, "Qualification:

If the particulars mentioned by the candidates in the registration matches with the experience certificate submitted by the individual, then in such case, his candiature is to be considered for the selection process of the recruitment exercise"

5.5 Relying on the above clarification, it could be successfully submitted by the learned advocate for the appellants that even after it is to be assumed that the experience mentioned in the application form and submitted at the time of verification considered by the authorities on the ground that it did not bear the date, since the period of experience mentioned in the application was confirmed by the contents of the certificate as Page 9 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023 NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined per their own guidelines as above, the respondent authorities ought to have accepted the experience to read the petitioner to be qualified for the purpose of appointment. It was highlighted that the petitioner had otherwise cleared successfully all the stages in the process of recruitment and that he was eligible.

5.6 While the observations quoted as above are from the decision in Food Corporation of India (supra), pertinent to be applied to the facts of the case, the decision of the Supreme Court in Charles K. Skaria vs. Dr. C. Mathew [(1980) 2 SCC 752] and another decision in Dolly Chhanda v. Chairman, Jee and others[(2005) 9 SCC 779] also lay down the principles which could be applied in the facts of this case. The Apex Court considered the distinction between the essential requirements and the proof and mode of proof thereof. In Charles K. Skaria (supra), the Supreme Court observed that what was essential was the possession of Diploma before the given date, and what was ancillary was the safe mode of proof of that qualification.

5.7 The requirements of fact are those, which are satisfied by showing the fact. It can be fortified by producing a proof. The stages in that regard may be different. However, once the primary factum is shown and it is necessary to get it supported by Page 10 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023 NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined further evidence or proof, such proof or evidence could be elucidated or called for. The distinction between the fact and its proof is also well-known to law. Both are essential requirements but could be in two stages, and could be permitted in such stages.

5.8 Viewed from the above distinction, along with the online application the petitioners had shown certificate which showed their possession of requisite experience for the requisite period. However, if further proof or any other certificate was required, the same was to be in the nature of proof to the fact already submitted. The proof could have been called for and considered at a later stage, if the respondents were of the opinion that it was needed. However, on that count, when the petitioners have shown the primary facts to satisfy their eligibility, their candidature could not have been discarded and not considering them for appointment.

5.8.1 The petitioners-candidates satisfied the primary requirement of submitting the form along with the certificate. The proof thereof was to be the secondary and only in case of doubt. In any case, it could have been verified subsequently.

5.9 In rejecting the candidature of the Page 11 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023 NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined petitioners on the ground that they did not hold experience certification, the respondent authorities have confused themselves between a fact which was established and its proof.

6. Therefore, the petitioners were found to be equipped with experience and had have the qualification to satisfy the total eligibility for the post. It was only the proof in the nature of certification, which was to be verified by the authorities. On that score, non-consideration of the candidature of the petitioners for appointment treating them ineligible was not justified. Learned Single Judge committed error in dismissing the case of the appellants-petitioners and failed to consider the above aspects of fact and law, which operated in the controversy.

6.1 For the reasons stated and discussions supplied above, the judgment and order of learned Single Judge in both the cases fails to sustain. Accordingly, the common judgment and order dated 19.04.2022 in both the Special Civil Applications are hereby set aside. The petitioners are entitled to be treated as eligible to be considered for appointment to the post of Junior Security Supervisor pursuant to the advertisement No. 1 of 2019, in which they participated. The appointment shall be given to them on the available post.

NEUTRAL CITATION C/LPA/664/2022 CAV JUDGMENT DATED: 09/11/2023 undefined

7. Both the Letters Patent Appeals are allowed accordingly.

(N.V.ANJARIA, J) (NISHA M. THAKORE,J) BIJOY B. PILLAI Page 13 of 13 Downloaded on : Fri Nov 10 21:02:15 IST 2023