Delhi High Court
Mrs. Ritu Bhatia vs Ministry Of Civil Supplies, ... on 2 February, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 977/2015
% 2nd February, 2015
MRS. RITU BHATIA ..... Petitioner
Through: Mr. Shameet Mukherjee, Senior
Advocate with Mr. O.P. Aggarwal,
Advocate.
Versus
MINISTRY OF CIVIL SUPPLIES, CONSUMER AFFAIRS, AND
PUBLIC DISTRIBUTION & OTHERS ..... Respondents
Through: Mr. Saurav Aggarwal, Advocate for
respondent Nos.2 and 3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition filed under Article 226 of the Constitution
of India, the petitioner impugns the order of the respondent no.2/employer
dated 2.1.2015 terminating the services of the petitioner on the ground that
her initial appointment itself was flawed because petitioner who was
required to have five years experience as a Company Secretary as on
W.P.(C) 977/2015 Page 1 of 13
30.11.2013 did not have the necessary experience of five years. The
impugned order dated 2.1.2015 reads as under:-
"MEMORANDUM
Whereas, online applications from eligible candidates were invited
through All India Management Association (AIMA) for recruitment of
one post of Company Secretary besides, other posts advertised in
Employment News dt. 26.10.2013 - 01.11.2013.
Whereas, educational qualification and experience for the post of
Company Secretary was fixed as - ACS, five years post qualification,
experience as Company Secretary in PSU / Private Company of repute
as on 30.11.2013. Online registration commenced from 26.10.2013
and last date for online registration ended on 16.11.2013.
Whereas, Smt. Ritu Bhatia had given undertaking at the time of
applying for the post of Company Secretary in her application dated
05.11.2013 that-
(a) She has read the provision given in the advertisement.
(b) She further, declared that she fulfils all the condition of eligibility
regarding age, education, professional / technical qualification, etc.
prescribed for the post applied.
(c) She has gone through the advertisement and the General conditions
mentioned therein and fulfils all the conditions / requirements specified
therein.
Further at the time of her interview as Company Secretary in CRWC,
she again submitted an undertaking on 13.02.2014 that all the
information provided in the application is true to the best of her
knowledge and belief. If any material suppression of facts comes to
notice at any point of her application's processing or career, she
understand that she shall be liable for disciplinary action or to be
W.P.(C) 977/2015 Page 2 of 13
terminated. On the basis of this undertaking she appeared in the
interview.
Whereas, Smt. Ritu Bhatia claimed to have experience with following
details, as on the date of application:-
Sl. Institute From To Experie Remarks
No nce
.
1. Oil & Natural 01.05.2003 30.06.2004 One year Experience
Gas & two Certificate (EC). Dt.
Corporation months 30.06.2004 (As
Ltd., India management
Chowk, New training prescribed
Delhi by Institute of
company
Secretaries)
2. Delhi stock 06.04.2005 01.06.2006 One year EC dt. 01.06.2006
Exchange & 57 (As Management
Association days Trainee)
Ltd., Asaf Ali
Road, New
Delhi
3. Bharat 06.11.2006 31.03.2007 4 months EC dt. 01.05.2007
Bhusan Share & 25 (As Company
& days secretary)
Commodity
Brokers Ltd.,
Jhandewalan
Extension,
New Delhi
4. Utkal 27.06.2008 15.05.2010 One EC dt. 15.05.2010
investment year, 10 (As assistant
Ltd. months company secretary).
Connaught & 18
Place, New days
Delhi
5. CRWC Ltd., 04.07.2011 6.11.2013 2 Years, EC dt. 06.11.2013
Corporate 4 months (As Company
Office New & 2 days secretary)
Delhi
1. Experience as management trainee worked out as two years &
approx. 4 months.
2. Experience as assistant company secretary worked out as -1
year, 10 months & 18 days
3. Experience as company secretary worked out as - 2 years,
8 months & 27 days or 2 years & 9 months only (rounded off
figure) as on 30.11.2013
Whereas, it has came to notice of the Company that the claim of Smt. Ritu
Bhatia of possessing required post qualification experience of five years is
not commensurate for the post of Company Secretary as per advertisement.
Whereas, it also came to the notice of the Company that norms ( 1:5 ) for
calling candidates for interview, have also been violated in making appoint
of Smt. Ritu Bhatia.
Whereas, after investigation and examination of the case, show cause notice
was issued to Smt. Ritu Bhatia, Company Secretary, CRWC Ltd., CO, New
Delhi vide letter no. CRWC-III/Est./PF- 105/14-15/3870 dtd. 01.11.2014,
intimating that she did not possess requisite experience of five years as
Company Secretary as on 30.11.2013. Smt. Ritu Bhatia submitted her reply
to the showcause notice which was taken into consideration by Competent
Authority and found unsatisfactory.
Therefore, in view of above facts and reply of Smt. Ritu Bhatia dt.
12.11.2014, it is concluded that contention of Smt. Ritu Bhatia of having
requisite experience for the said post has no basis, whatsoever, and her
appointment has been found to be done in violation of selection norms
advertise on 26.10.2013. Accordingly, services of Smt. Ritu Bhatia are
hereby terminated with immediate effect." (underlining added)
2. Petitioner urges before this Court the following grounds to
impugn the termination order:-
(i) Petitioner never concealed any aspect when she was appointed as a
Company Secretary with the respondent no.2 and the petitioner has
consequently worked, originally as a probationer and thereafter as a regular
employee, with the respondent no.2, and therefore, petitioner at this stage,
cannot be held to have been lacking in experience as on 30.11.2013 of five
years working as a Company Secretary. Additionally it is urged that
relaxation was permissible and was granted to the petitioner as regards her
years of experience.
(ii) The impugned order dated 2.1.2015 is a non-speaking order and
therefore liable to be set aside for this very reason.
(iii) Even if there was deficiency in experience in working as a Company
Secretary of the petitioner as on 30.11.2013, petitioner has worked with the
respondent no.2 as a Company Secretary from 9.4.2014 till 2.1.2015 and
which period also should be counted and consequently the petitioner should
be held to have the requisite experience of five years.
3. Let us take up each of the arguments which have been urged on
behalf of the petitioner and deal with the same.
4. The first argument urged on behalf of the petitioner that
petitioner is not guilty of concealment of facts and since the respondent no.2
accepted the experience of the petitioner as a Company Secretary and so
stated in the chart in the impugned termination letter dated 2.1.2015, and
thereafter appointed the petitioner as a Company Secretary, now the
petitioner cannot be held to have been lacking in experience. It is also urged
that related to this argument is that once the petitioner has qualified as a
Company Secretary, her work thereafter necessarily has to be of a Company
Secretary even if the petitioner was working only as a management trainee
and not at the post of a Company Secretary. Petitioner also pleads that even
assuming she was not qualified because she did not have five years
experience, the relaxation in her favour is deemed to have been granted at
the time when she was appointed by applying paras 8.3.1 and 8.3.2 of the
recruitment rules which entitle the Managing Director of the respondent no.2
to relax the requirement for the post, and it is argued that petitioner in fact
was given the relaxation. Petitioner has raised a question in her writ petition
that once the petitioner has worked satisfactorily for a number of months by
discharging the duties of a Company Secretary, and had been granted the
benefit of waiver/relaxation within the ambit of the rules by the then Managing
Director of the respondent no. 2, whether the relaxation granted can be
revoked by the successor Managing Director and which is alleged to be with
a pre-mediated intention to terminate the services of the petitioner.
Petitioner also claims that allegations against the earlier Managing Director
of the respondent no.2 and which Managing Director was associated with
the screening and selection of applications for appointment to several posts
including that of Company Secretary, cannot be the basis of the foundation
of action against the petitioner. The aspects with respect to the
relaxation/waiver being given to the petitioner by the earlier Managing
Director and wrong allegations against the Managing Director have been
given in Questions of Law (B) and (N) of the writ petition.
5(i). At the first blush, the argument urged on behalf of the petitioner
did seem to have substance because after all there is no case against the
petitioner that petitioner had concealed facts at the time she took
appointment as a Company Secretary with the respondent no.2 inasmuch as
this is not the case of the respondent no.2 that the petitioner is guilty of
concealment of facts with respect to her experience, however, on a deeper
examination of the matter, I am of the opinion that this Court should not set
aside such termination orders which will have the effect of creating a
situation whereby there is overlooking of the applicable
qualification/requirement of appointment and effected by one erstwhile
Managing Director of the respondent no.2, and which if permitted would
have the effect that high authorities working in public sector undertakings/
governmental organizations will as per their own convenience overlook the
applicable terms of recruitment of a person to a post and thereafter an
unqualified employee who knew that she was unqualified can effectively
claim estoppel against termination of services. After all there can be no
estoppel once a person knew the correct facts of her inadequate experience.
No doubt, petitioner was appointed but the petitioner obviously took
appointment with open eyes knowing very well that her experience though
had been not questioned at the time of her appointment by the respondent
no.2 through its Managing Director/Screening Committee, it could be very
much possible that the experience of the petitioner of five years working as a
Company Secretary since the same does not meet the recruitment
requirement, appointment of the petitioner may at some later point of time
be validly questioned.
(ii). It is undisputed that in terms of the relevant recruitment rules to
the post of a Company Secretary of the respondent no.2, the requirement
which was prescribed for appointment of a Company Secretary was five
years experience as a Company Secretary, and therefore there cannot be
any doubt that experience is of working as a Company Secretary in a post
and not simply because a person has the qualification of a Company
Secretary. If a person after being qualified as a Company Secretary,
thereafter works, it cannot be said that such working necessarily and
automatically is at the post of a Company Secretary. A person who qualifies
as a Company Secretary may work after being qualified not necessarily as a
Company Secretary i.e at the posts other than that of a Company Secretary,
and such periods of working of a person not as a Company Secretary cannot
be taken as work at the post of a Company Secretary.
(iii). As per the chart contained in the impugned order, and which is
an admitted chart of work experience of the petitioner as on 30.11.2013, the
period from 1.5.2003 to 30.6.2004 of one year and two months is only as a
Management Trainee and so also the period of work from 6.4.2005 to
1.6.2006 as a Management Trainee, and which periods are respectively with
ONGC and Delhi Stock Exchange Association Ltd. If these periods are
deducted from the five years experience as a Company Secretary as claimed
by the petitioner, petitioner will not have the requisite experience of five
years as a Company Secretary. In my opinion, working as a Management
Trainee is not working as a Company Secretary because working as a
Company Secretary is at the post of a Company Secretary inasmuch as the
experience required is of working as a Company Secretary. Thus, working as
a Company Secretary necessarily has to mean having the experience of
working in the post of a Company Secretary, and which is so required by the
subject advertisement for appointment to the subject post of a Company
Secretary with the respondent no.2.
(iv) In fact, there is a third period from 27.6.2008 to 15.5.2010 of 1
year, 10 months and 18 days of the petitioner working as an Assistant
Company Secretary with Utkal Investment Ltd and which experience also is
not as a Company Secretary but only as an Assistant Company Secretary.
(v). Really therefore, out of the total period of five years experience
required of working as a Company Secretary as on 30.11.2013, period of
four years, two months and fifteen days is in fact not as a Company
Secretary but the periods of work as a Company Secretary are only of 4
months and 25 days with Bharat Bhushan Share and Commodity Brokers
Ltd and with the respondent no.2 for a period of two years, four months and
two days viz a total experience of Company Secretary of 2 years, 8 months
and 27 days as compared to the requirement in terms of the advertisement of
having worked for five years as a Company Secretary. Petitioner therefore
undoubtedly lacked the requisite experience of working as a Company
Secretary.
(vi). Article 14 of the Constitution of India cannot be pressed in aid
for enforcing an illegality because Article 14 of the Constitution of India is a
positive concept. Once the petitioner is found to be deficient in her
requirement, if this Court allows petitioner who had grossly deficient
experience for the post of a Company Secretary as on 30.11.2013, the effect
would be that this Court would be asked to permit and put its imprimatur on
an illegality, and which this Court cannot do.
6(i). The related argument urged on behalf of the petitioner by
relying upon the Recruitment Rules 8.3.1 and 8.3.2 of granting relaxation in
the requirement of petitioner need not having the five years experience, this
argument is also misconceived because when we read the recruitment rules,
the said rules deal with the relaxation of requirement with respect to internal
candidates. Petitioner as on the date of appointment with the respondent
no.2 was contractually working with the respondent no.2 and therefore was
not a regular employee of the respondent no.2 and hence not an internal
candidate.
(ii). In any case, I do not find any order of the Managing Director of
the respondent no.2 which is placed on record, much less specifically qua
the petitioner, and which gave the relaxation to the petitioner and as is being
claimed by the petitioner in the writ petition. It is rightly argued by the
counsel for the respondent no.2 before this Court that there is no order of
relaxation qua work experience of the petitioner and therefore no such order,
much less passed by a competent authority, has been filed by the petitioner.
Therefore, I do not find any merit in argument of relaxation urged on behalf
of the petitioner.
7. The second argument which is urged on behalf of the petitioner
that the impugned order is a non-speaking order, is again an argument
without merit because the impugned order dated 2.1.2015, which has been
reproduced above, is in fact a speaking order which shows that what is the
experience of the petitioner as on 30.11.2013 and which experience
therefore fell short of the requisite experience of five years as a Company
Secretary and which therefore showed that the initial appointment of the
petitioner itself was not justified and consequently services of the petitioner
have been terminated on account of initial defect in the appointment of the
petitioner and which appointment was allegedly given because of what is
stated by the petitioner that the petitioner was granted relaxation by the then
Managing Director of the respondent no.2.
8. The third argument of the petitioner will stand decided against
the petitioner in terms of the first argument, both in fact and in law.
9. No doubt the facts of the present case show that present is a
hard case, however, persons who take employments with the knowledge that
they may not have the requisite qualification in terms of the recruitment
qualifications prescribed for being appointed to the post, such persons take
the risk that their appointments can be called into question at the subsequent
stage. If the initial appointment itself is found to be without any valid basis
the appointment itself goes, and the petitioner therefore on the ground of
equity or the fact that she did not conceal any aspect cannot claim that her
employment which was defective at the outset. The petitioner cannot claim
that she should be protected by this Court. Also, it is not as if the petitioner
had worked in the subject post to which she was appointed for many many
years with the respondent no.2, because the petitioner has worked for but a
few months from 9.4.2014 to 2.1.2015 in the respondent no.2/company.
Also, because the earlier post of a Company Secretary to which the
petitioner was appointed in the resondent no.2/company was only
contractual in nature.
10. Dismissed.
FEBRUARY 02, 2015 VALMIKI J. MEHTA, J
Ne
