Manoj Kumar Singh & Ors. vs Food Corporation Of India & Ors.
2013 Latest Caselaw 5196 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.3129/2011 & conn.

%                                                   13th November, 2013

+ WP(C) 3129/2011 & CMs 3250/13, 11098/12, 11097/12, 1225/12 & 6611/11

MANOJ KUMAR SINGH & ORS.                                  ......Petitioner

                          Through:     Mr. Ravi Gupta, Sr. Adv. with Mr.
                                       Ankit Jain and Mr. Ajay Gulati,
                                       Advocates.

                          VERSUS

FOOD CORPORATION OF INDIA & ORS.             ...... Respondents

Through: Mr. Rajeeve Mehra, ASG of India with Mr. Ajit Pudussery, Mr. M.Chandra Sekhar and Mr. Aditya Malhotra, Advocates .

+ WP(C) 1145/2012

PRASHANT SINGH KHOKKAR                                    ......Petitioner

                          Through:     Mr. Sanjay Ghose and Mr. Akshay
                                       Goel, Advocates.

                          VERSUS

FOOD CORPORATION OF INDIA & ORS.             ...... Respondents
                 Through:  Mr. Rajeeve Mehra, ASG of India
                           with Mr. Ajit Pudussery, Mr.
                           M.Chandra Sekhar and Mr. Aditya
                           Malhotra, Advocates .




 + WP(C) 1459/2012 & CM 3185/2012 (Stay)

BIBHUTI BHUSHAN SAHU & ORS.                           ......Petitioners

                        Through:   Mr. Ravi Gupta, Sr. Adv. with Mr.
                                   Ankit Jain and Mr. Ajay Gulati,
                                   Advocates.

                        VERSUS

FOOD CORPORATION OF INDIA & ORS.             ...... Respondents
                 Through:  Mr. Rajeeve Mehra, ASG of India
                           with Mr. Ajit Pudussery, Mr.
                           M.Chandra Sekhar and Mr. Aditya
                           Malhotra, Advocates .

+ WP(C) 1460/2012 & CM 3187/2012 (stay)

PARVINDER SINGH & ORS.                         ......Petitioners

                        Through:   Mr. Ravi Gupta, Sr. Adv. with Mr.
                                   Ankit Jain and Mr. Ajay Gulati,
                                   Advocates.

                        VERSUS

FOOD CORPORATION OF INDIA & ORS.             ...... Respondents
                 Through:  Mr. Rajeeve Mehra, ASG of India
                           with Mr. Ajit Pudussery, Mr.
                           M.Chandra Sekhar and Mr. Aditya
                           Malhotra, Advocates .

+ WP(C) 2297/2012 & CM 4925/2012 (for stay)

PHOOL CHAND MEENA                                     ......Petitioner





                          Through:      Mr. Ravi Gupta, Sr. Adv. with Mr.
                                       Ankit Jain and Mr. Ajay Gulati,
                                       Advocates.

                         VERSUS

FOOD CORPORATION OF INDIA & ORS.             ...... Respondents
                 Through:  Mr. Rajeeve Mehra, ASG of India
                           with Mr. Ajit Pudussery, Mr.
                           M.Chandra Sekhar and Mr. Aditya
                           Malhotra, Advocates .

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes.


VALMIKI J. MEHTA, J (ORAL)

W.P.(C) No. 3129/2011

1. By this writ petition, petitioners pray for the relief of quashing of the

selection process for the post of Assistant General Manager (Technical) in

which they were disqualified on account of lacking 5 years experience.

Prayer made is that since petitioners had the necessary qualifications, their

applications for the post of Assistant General Manager (Technical) be

considered by the respondent no.1/Food Corporation of India.

2. Admittedly, the requirement for appointment to the post of Assistant

General Manager (Technical) as per the advertisement in question reads as

under :-

"Assistant General Manager (Technical) (Post Code: 06) -i) Degree in Agriculture, or Degree in Science with Diploma in Food Technology or Master‟s Degree in Zoology or Biochemistry or equivalent qualifications, ii) 5 years experience in storage of food- grains and maintenance of stocks or in the examination, inspection and analysis of food grains in govt. or Public/Private Sector Undertaking, Desirable: (knowledge of toxicology of insecticides, rodicides and fumigants in use in grains/stocks. The experience acquired as Junior/Senior Research Fellow while pursuing higher studies, will be reckoned as required experience "

3. The issue is whether petitioners have 5 years experience of

examination, inspection and analysis of food grains in government and/or

public/private sector undertakings.

4. Petitioners claim that they have the necessary experience inasmuch as

they are existing employees of the respondent no.1 working as Managers

(Quality Control), and before their appointments as Managers (Quality

Control) they worked as Management Trainees for these very posts with the

respondent no.1, and such period of training has to be included for

calculating the period of 5 years experience as per the subject advertisement.

5. On behalf of respondent no.1 reliance is placed upon the scheme of

Management Trainees dated 30.11.2000 to argue that for the B and C phases

which would be towards storage/maintenance of stocks, such periods are

only of 90 days i.e training of only 90 days in the second and third training

period of one year for B and C phases is given, and therefore, petitioners can

at best have experience of 180 days in one year of 365 days and not for the

total period of 365 days because other days are towards lecturers and so of a

Trainee.

6. I was inclined at one stage to agree with respondent no.1 because 5

years experience training necessarily means complete 5 years experience as

Managers (Quality Control), and petitioner do not appear to have that

experience if the training period is excluded, however, that initial impression

has been negated on behalf of the petitioners by referring to circular of the

respondent no.1 numbered 59/86 dated 22.9.1986 read with the Govt. of

India order dated 8.3.1983, and conjoint reading of both the circular and the

Govt. of India order shows that period spent in training has to be counted

towards departmental examination which has to be given. The circular dated

22.9.1986 and Govt. of India‟s order dated 8.3.1983 read as under:-

CIRCULAR NO. 59 OF 1986 NO.EP.16(11)/82 Dated: September 22, 1986 Subject: Application of Rules, Regulations, Instructions, Orders issued by the Central Government in The Food Corporation of India As per the directions of the Central Government under Section 6(2) of the Food Corporations Act, 1964, all the concerned in the Corporation are hereby informed that in all cases where there are no specific provisions in the Food Corporation Act, 1964, or Rules or Regulations or Instructions made thereunder, the Food Corporation shall follow the Central Government Rules Regulations, Instructions, Orders issued from time to time on the subject where relevant.

2. All the concerned in the Corporation are, therefore, advised to follow the Central Government Rules, Regulations, Instructions, Orders in the absence of any specific Rules, Regulations Instructions, Orders in the Food Corporation of India. It is also clarified that wherever Food Corporation of India‟s Rules/Regulations/Instructions are clear, there shall be no need to follow the Government Rules/Regulations/Instructions/Orders etc. on the subject.

3. This issues with the approval of the Chairman.

Sd/-

A.K.Pandey Personnel Manager"

Govt. of India's order dated 8.3.1983 "(16) Period of training before appointment to be treated as 'duty' for eligibility to sit for departmental examinations.- The Staff Side of the National Council (JCM) had suggested inter alia that the service rendered by an employee during the training period before his regular appointment to the grade be treated as duty for eligibility to sit for the departmental examination.

2. The request made by the Staff Side of the National Council (JCM) has been examined and it has been decided that in all cases where pre-service training is considered necessary before actual appointment to the post, the period spent by an officer on training

immediately before such appointment would count as qualifying service for the purpose of eligibility for appearing in departmental examinations, even if the officer is not given the scale of pay of the post but only a nominal allowance."

7. In my opinion, once the circular dated 22.9.1986 and the office order

dated 8.3.1983 exist, there can only be two obstacles for not granting the

benefit to the petitioners of the training period as their experience for being

included in the 5 years experience. First would be that respondent no.1 has

issued a rule or regulation or instruction/order deviating and disagreeing

with the Govt. of India order dated 8.3.1983. The second aspect is that

whether the expression „departmental examination‟ should be restricted to

only a literal meaning that training period can only benefit for seeking

promotion by departmental examination or it can even apply to direct

recruitment, keeping in view the fact that petitioners are aspirants to the

subject post by the direct recruitment process.

8. So far as the first aspect is concerned, admittedly there is no rule or

regulation issued by the respondent no.1 changing the applicability or

denying the applicability of the circular of the Govt. of India dated 8.3.1983.

The issue then is whether there is any instruction or order issued by the

respondent no.1 for not applying the Govt. of India order dated 8.3.1983. In

my opinion, the language of the circular dated 22.9.1986 requires that

instruction /order has to be in the nature of a specific instruction or order or

circular that the circular of the Govt. of India dated 8.3.1983 will not apply

so far as the respondent no.1 is concerned. In the present case, there is no

instruction or order or circular issued specifically waiving or deviating from

the applicability of the Govt. of India order dated 8.3.1983 to the respondent

no.1, and therefore, I hold that petitioners would be given benefit of the

Govt. of India order dated 8.3.1983.

9. The second aspect is that as to whether benefit of training period can

be counted as experience only for departmental examination or also for

direct recruitment. In my opinion, the expression „departmental

examination‟ found in this order dated 8.3.1983 cannot be read in a narrow

and pedantic manner because if experience is good enough for promotion to

a higher post by departmental examination, there is no reason why

experience of training is not good enough when a departmental candidate

applies for direct recruitment post. Therefore, I hold that the order of the

Govt. of India dated 8.3.1983 will also apply with respect to departmental

candidates who seek benefit of direct recruitment/appointment to a higher

post.

10. I may note that it is not disputed before me on behalf of respondent

no.1 that if the training period of each petitioner is added to the period of

service of the petitioners as Managers (Quality and Control) then, the

petitioners will have the 5 years experience which is required as per subject

advertisement.

At this stage, after the aforesaid judgment was dictated, it transpires

that petitioners, as now argued on behalf of the respondent no.1, may or may

not have the requisite 5 years experience because even if the training period

of the petitioners with the respondent no.1 is counted as experience, yet the

experience of the petitioners will not total to 5 years.

11. The fact of the matter is that not only the eligibility criteria has to be

complied with before the selection process is complete, it is also necessary

in law that if a person is rejected the reasons of rejection will have to be

stated and be those reasons which are given at the time of rejection of the

candidature of the candidate for being considered for selection. In the

counter-affidavit filed by respondent no.1 though various factual aspects are

mentioned to state that petitioners do not have the eligibility criteria,

however, the documents filed by the petitioners show that various grounds

which are now taken up in the counter-affidavit were not put to the

petitioners as being their disqualifications with respect to their not having

completed the 5 years experience period. The net effect is that there are

shortcomings not only on behalf of the petitioners of whether they gave or

did not give the experience documentations but also the respondent no.1 in

not giving the appropriate objections at the time of rejecting the candidatures

of the petitioners. The question is that then what should be done in this

scenario.

12. One thing which is clear is that a person‟s candidature can only be

considered if that candidate is otherwise qualified in terms of requirement

specified in the advertisement. This aspect cannot and could not be disputed

by either of the parties. Since there is shortcoming on both the sides, it is

therefore eminently just that now a fresh consideration takes place of

whether or not the petitioners have the necessary 5 years experience as on

the date of the advertisement in question having been issued on 8.1.2011. In

order to determine this aspect, respondent no.1 will designate an

appropriate/competent officer who will hear each of the petitioners who will

be entitled to file all documents to show that they have the necessary 5 years

experience. If the competent officer of the respondent no.1 decides that one

or more of the petitioners do not have the necessary 5 years experience, then,

a specific communication giving the specific reasons as to why the 5 years

experience is not completed by one or more petitioners, will be given to the

petitioners. If the petitioners at that stage are dis-satisfied on account of any

alleged illegal action of the respondent no.1, then petitioners at that stage

can approach the Court.

13. The writ petition is disposed of by directing that respondent no.1 will

consider afresh the eligibility of the petitioners of having 5 years experience

as on 8.1.2011. In terms of this judgment, so far as the training period is

concerned, the same will be counted as a period of experience required in

terms of the advertisement because of the reasons given hereinabove. So far

as the other periods are concerned, so as to total up to the 5 years experience

required, these aspects will be examined by the competent officer of the

respondent no.1 after hearing the petitioners, putting to them the necessary

queries, asking them to file the necessary documents with respect to the

queries which are raised by the competent officer, and thereafter, passing an

order giving reasons and addressing a specific communication accordingly

to the petitioners if they meet or do not meet the qualifications criteria of 5

years experience. This order will be communicated to the petitioners, who if

entitled in law, can challenge the rejection, if so done as regards one or more

of the petitioners, by the respondent no.1 for the appointment to the post of

Assistant General Manager (Technical) with the respondent no.1. The

aforesaid exercise be now completed within a period of three months as

jointly prayed for by the parties, and for that period and further till the

decision is communicated to the petitioners of their rejection if any and also

for a further period of 15 days thereafter, the interim orders passed by this

Court reserving posts of Assistant General Manager (Technical) will

continue. The writ petition is disposed of in view of the aforesaid

observations. Parties are left to bear their own costs.

WP(C) 1145/2012, WP(C) 1459/2012 , WP(C) 1460/2012 & WP(C) 2297/2012

These writ petitions will stand disposed of in terms of the directions

given in W.P.(C) 3129/2011 of the petitioners being given a liberty to satisfy

the competent officer of the respondent no.1 as their meeting the 5 years

experience criteria, and also as per the detailed directions as already given.

Interim orders which have been passed in the aforesaid writ petitions are

granted in these cases as per directions in W.P.(C) 3129/2011 inasmuch as

learned ASG of respondent no.1, on instructions, states that the posts in

question have till date not been filled up on a regular/permanent basis.

NOVEMBER 13, 2013                             VALMIKI J. MEHTA, J.
ib