Delhi High Court
Ritu Bhatia vs Ministry Of Civil Supplies ... on 31 July, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 160/2015 & CMs 5244/2015, 7650/2015
Reserved on: 4th July,2017
Date of decision :31st July, 2017
RITU BHATIA ..... Appellant
Through: Mr.S.Mukherjee and Mr.Avijit Singh,
Advs.
versus
MINISTRY OF CIVIL SUPPLIES CONSUMER AFFAIRS &
PUBLIC DISTRIBUTION & ANR ..... Respondents
Through: Mr.Dev P.Bhardwaj, CGSC with
Mr.Satya Prakash Singh, Adv. for R-
1/UOI
Mr.Saurav Agarwal, Mr.A.Tiwari,
Advs. for R-2-3
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J.
1. The Appellant, by way of the present Appeal has challenged the
Judgment/Order dated 02.02.2015 passed by the Single Judge of this
Court in WP(C) 977/2015 dismissing the aforesaid Writ Petition.
2. In the aforesaid Writ Petition, the appellant had impugned the
Order dated 02.01.2015 passed by the Respondent No.2, terminating
the service of the Appellant on the ground that her appointment was
done in violation of selection norms which were advertised on
26.10.2013.
LPA No.160/2015 Page 1
3. The Respondent No.2 issued the aforesaid advertisement for
seeking applications inter-alia for the post of Company Secretary. The
said advertisement mandated five years post-qualification experience
as a Company Secretary as on 31.11.2013 in a PSU/Private Company
of repute. The Appellant applied for the post of Company Secretary
and in her application she stated that she had post qualification
experience of 7 years and 3 months. The relevant portion of the
application, reads:
Total Post Qualification Experience in relevant filed 7 year(s) 3
month(s)
Duration of Organization Organization Post held Job Profile Pay
employment name type Scale/CT
C
From To
Jul- Nov- Central PSU Company Conducting the 36,000/-
2011 2013 Railside Secretary Board, AGM & p.m.
Warehouse Sub Committees
Company Ltd. meetings,
compiling the
minutes of the
meetings.
Compliances
with guidelines
of DPE.
Implementation
of MOU signed
with the parent
company. Work
relating to
introduction of
PMS. WMS &
ISO certification.
LPA No.160/2015 Page 2
Formulation of
corporate plan,
Grant of
Miniratna Status
proposal,
upgradation from
Sch C to B
Company.
Jun- May- Utkal Private Assistant Vetting of legal 28,000/-
2008 2010 Investments Company and joint venture p.m.
Pvt. Ltd. Secretary agreement.
Handled
corporate law
matters related to
conducting of
Annual General,
BOD and Sub-
committee
meetings,
incorporation of
Companies,
increase &
consolidation of
Share Capital,
allotment of
shares, alteration
of MOA and
AOA,
preparation of
Annual Reports
and filing of
Annual Returns
& Fin.Stat. with
ROC
Nov- May- Bharat Private Company Compliance work 15,000/-
2006 2007 Bhushan Secretary under the p.m.
Shares & provisions of
Commodity Companies Act
Brokers Ltd. including
compliances of
listed company
LPA No.160/2015 Page 3
with stock
exchanges.
Compliance with
SEBI guidelines
including
Takeover Code
and prevention of
insider trading
compliance with
NCDEX norms.
Apr- May- The Delhi Private Manageme Secretarial and 8,100/-
2005 2006 Stock nt Trainee legal work p.m.
Exchange relating to listing
Association of regional and
Ltd. non-regional
Companies at
BSE-Indo next
platform and
change in the
name and address
of Reg. Offices
of Co.
Monitoring all
the compliances
related to the
listed companies.
Compliance with
SEBI guidelines
including
Takeover Code
and prevention of
Insider Trading
and Corporate
Governance.
May- Jun- Oil and PSU Manageme Secretarial work 2,500/-
2003 2004 Natural Gas nt Trainee related to p.m.
Corporation preparation of
Ltd Board meeting
notices &
agendas, holding
of Annual
LPA No.160/2015 Page 4
General Meeting
and drafting of
minutes.
Coordinating and
liasioning with
RTA, SEBI,
ROC, Stock
exchanges and
depositions
(NSDL and
CDSL). Assisting
in the
documentation
related to offer of
sales.
Feb.20 Feb. NIRC of the Autonomous Manageme Handled the 2,500/-
03 2003 ICSI Bodies nt Trainee secretarial work p.m.
and activities
related to
research and
analysis of
corporate law.
4. The Appellant duly participated in the selection process and was
appointed as Company Secretary by the Respondent No.2 vide
Memorandum dated 13.03.2014. Thereafter, she was appointed on
regular basis to the post of Company Secretary vide Office Order
dated 22.04.2014. A Show Cause Notice dated 01.11.2014 was issued
by the Respondent No.2 calling upon the Appellant to explain why her
services should not be terminated, as she did not have the requisite
five years of experience for the post of Company Secretary. The
Appellant submitted her reply to the above Show Cause Notice.
However, the Respondent No.2 vide its Order dated 02.01.2015
terminated the services of the Appellant. This Order was challenged
LPA No.160/2015 Page 5
by the Appellant before the Single Judge by way of WP (C) 977/2015
and the said Petition was dismissed vide Order dated 02.02.2015,
which is impugned before us.
5. The short controversy involved in the present Appeal, therefore
is whether the Appellant had the requisite experience of 5 years as a
Company Secretary as on 30.11.2013. The claim of the Appellant with
regard to the experience as set out in the application form has been
reproduced hereinabove. The Appellant has further filed a chart, along
with supporting documents, before us showing how she claims to
possess the required experience as on 30.11.2013. The said chart is
reproduced herein below:
DETAILS OF EMPLOYMENT AND TOTAL EXPERIENCE OF
APPELLANT
Organization Post held From/to Working Remarks
period in
months
ONGC Management May 2003 to 14 months Appellant is not
Trainee June 2004 asking for this
period to be
counted
The Delhi Management April 2005 to 14 Months as The experience is
Stock Trainee June 2006 per appellant to be counted in
Exchange months as per the
Association of online application
India (DSE) 13 Months 27 formal/form
days as per which is at page
respondent 9-12 with
additional
affidavit Dt.
20.07.2016. The
appellant worked
in the Secretarial
LPA No.160/2015 Page 6
Department of
DSE, which only
appoints
Company
Secretaries with 1
to 2 years of post
qualification
experience in the
Secretarial
Department.
Unlike a single
company, the
Delhi Stock
Exchange which
deals with
compliances by
all the listed
companies, both
as regards listing
requirements and
also compliances
after getting
listed, naturally
has a fairly large
Secretarial
Department and
as such, having
number of
qualified
Company
Secretaries, is not
surprising nor a
reason to not treat
the experience of
the appellant who
was also a
qualified
Company
Secretary. The
Delhi Stock
Exchange has
confirmed in its
LPA No.160/2015 Page 7
experience
certificate (at
page 35 with
additional
affidavit dated
20.07.2016), that
the appellant was
executing duties
of Company
Secretary
assigned by her
HOD which
included name of
companies,
change in
registered office
address and
listing of
companies etc.
Just as an
Advocate may be
sometimes
associated with a
Senior Counsel or
assisting another
Advocate of
longer standing or
working together
on a case will not
disentitle the
experience to be
that of an
Advocate.
RR financial Company June 2006 to 5 The experience is
consultants Secretary October 2006 as per declaration
Limited by company in
Form 32 to ROC
commencement
of period and
cessation (at page
23-32 with
additional
LPA No.160/2015 Page 8
affidavit dated
20.07.2016),
confirms service
of 5 months as
Secretary. The
statutory
declaration is
filed by the
company
management
authorized by
resolution of the
Board of
Directors, all
much before the
present dispute
arose between the
parties.
This period,
though not
claimed earlier, is
duly supported by
statutory
declarations about
7-8 years before
the present
dispute arose in
2014.
Bharat Bhushan Company November 8 Months as The experience
Shares and Secretary 2006 to June per appellant has to be rounded
Commodity 2007 off in months as
Limited explained above.
4 months 25 Respondent
days as per disputes that
respondent period be counted
only upto May
2007, which is
not correct since
the declaration by
Company in Form
LPA No.160/2015 Page 9
32 to ROC
regarding
cessation of
period (at page
20-22) with
additional
affidavit dated
20.07.2016),
shows service to
be upt 29.06.2007
and the statutory
declaration is
filed by the
Company
management
authorized by
resolution of the
Board of
Directors, all
much before the
present dispute
arose between the
parties. The
respondent seems
to be basing its
stand on form 16
Income Tax
which is always
upto end of
concerned
Financial Year
i.e. 31.03.2007.
Utkal Assistant June 2008 to 24 Months as The experience
Investments company may 2010 per appellant has to be rounded
Limited (UIL) Secretary off in months as
explained above.
1 year 10 m & Declaration by
18 days as per Company in form
respondent 32 to ROC dated
09.06.2010 much
prior to present
dispute, confirms
LPA No.160/2015 Page 10
that appellant was
the Secretary as
per company
law.
Central Company July 2011 to 29 months as The experience is
Railside Secretary Nov. 2013 per appellant to be counted in
Warehouse months as per the
Company online application
Limited format/form
28 months as
(CRWC) per respondent which is at page
who has taken 9-12 with
upto 6th NOV, additional
only affidavit dated
20.07.2016, and
the period has to
be till 30.11.2013
(and not date of
submitting
application as
wrongly taken by
respondent).
Total 80 The total
experience of 80
months is much
more than the
required
experience of 60
months (5 years)
PERIOD AFTER 30.11.2013 BUT BEFORE TERMINATION
Organization Post held From/to Working Remarks
period in
months
Central Railside Company December 2013 14 months Additional
Warehouse Secretary to January 2015 experience after
Company (01.12.2013 to 30.11.2013 till
Ltd.(CRWC) 02.01.2015) the termination
LPA No.160/2015 Page 11
Grand Total 94 The total
experience of
94 months is
much more
than the
required
experience of
60 months (5
years)
6. Counsel for the Appellant has been unable to show how the
experience gained while working at ONGC as a "Management
Trainee" between May, 2003 to June, 2004 can be counted as
experience as a "Company Secretary" as prescribed in the
Advertisement. This period has to be excluded, as it is not to be
connected as experience as a Company Secretary.
7. A bare perusal of the above chart would show that as far as the
claim of the Appellant with respect to her working as a "Management
Trainee" with Delhi Stock Exchange Association of India for the
period April 2005 to June 2006 is concerned, though the Appellant
may have been discharging certain or some function/duties which are
undertaken by Company Secretary, she was not appointed and worked
as "Company Secretary", she was working as a Management Trainee.
Therefore, this period cannot be counted as the requisite experience
for the post. "Company Secretary", under the Companies Act, is an
"Officer" of the Company not only charged with various duties but
also open to penalty etc. in case of defaults. The responsibilities,
statutory duties and obligations are different. It is for this reason that
special declaration is also to be filed with Registrar of Companies
LPA No.160/2015 Page 12
while appointing Company Secretary. Merely because a person, for
administrative reason/convenience, discharges some similar functions
which otherwise may be the functions of a Company Secretary, does
not make such person the Company Secretary of such Company. We,
therefore, agree with the Single Judge that experience gained by the
Appellant while in employment of Delhi Stock Exchange, cannot be
counted as the experience required under the Advertisement dated
26.10.2013.
8. As far as claims of experience with RR Financial Consultant
Limited for the period June 2006 to October, 2006 is concerned, it is
to be noticed that the Appellant had made no such claim in the
application submitted by her while applying for the post. Faced with
this situation, Learned Counsel appearing for the Appellant had fairly
submitted that he would not rely upon the work experience with RR
Financial Consultant Limited as recorded in the Order dated
27.09.2016 passed in the present Appeal. The relevant portion of the
Order is reproduced herein under:
"During the course of hearing, learned counsel for the
appellant / applicant submits that he would not rely upon
the certificate and work experience in R.R. Consultants
Ltd. This statement is made by counsel for the appellant
in view of the objection raised by counsel for the
respondent, who has drawn our attention to the online
form filled up by the appellant / applicant wherein she
had given details of post qualification experience (page
278 of the appeal paper book). The said details pertain to
five different employments from May, 2003 till November
2013.
LPA No.160/2015 Page 13
Learned counsel for the respondent states that he
would have no objection in case the appellant /applicant
relies upon the work experience mentioned in the online
application form. He, however, submits that in spite of
taking the said work experience, the petitioner does not
qualify.
We take the statement made by counsel for the
appellant / applicant and the respondents on record."
9. This leaves us with the claim of the Appellant with respect to
her experience as Company Secretary with Bharat Bhushan Shares
and Commodities Ltd. for the period November 2006 to June 2007,
Utkal Investments Ltd. for the period June 2008 to May 2010 and
Respondent No.2 for the period July 2011 to November 2013. The
Appellant in this regard has also filed documents in support of her
claim for the said experience.
10. As far as Bharat Bhushan Shares and Commodity Ltd is
concerned, it seems that though Form-32 filed by the Appellant (page-
232) shows the date of cessation as 29.06.2007, in her application, she
had claimed to have worked only till May 2007. The Respondent
No.2 has also placed before us the documents submitted by the
Appellant in support of her claim of experience in the application form
and one of the documents is a letter dated 30.05.2007 (page 357)
whereby the Appellant seems to have submitted her resignation with
Bharat Bhushan Shares & Commodity Limited w.e.f. 30.05.2007
itself. In light of the same we feel that her experience can be counted
only till 30.05.2007 as far as Bharat Bhushan Shares and Commodities
Ltd. is concerned.
LPA No.160/2015 Page 14
11. As far as Appellant's claim of experience with Utkal Investment
Ltd. is concerned, though, the experience claimed is as "Assistant
Company Secretary", Form-32 now filed before us showing her
appointment as "Company Secretary" for the period 27.06.2008 (P-
282) to 15.05.2010 (P-285). The Counsel for Respondent No.2
submits that the said Form-32 was not filed by the Appellant along
with her application and, therefore, should not be considered by us at
this stage. However, as we have eventually found that even after
taking into account the experience gained by the Appellant with Utkal
Investment Ltd., the Appellant still does not make the grade, we need
not delve deeper on this objection.
12. As far as Appellant's claim of experience with Respondent
No.2 is concerned, there is no doubt or dispute that her experience
between 04.07.2011 to 30.11.2013 is to be duly counted.
13. From the above, it would be apparent that the following is to be
counted as Appellant's work experience as Company Secretary till
30.11.2013:
Sl.No. Company name From To Duration
1. Bharat Bhushan 6.11.2006 30.05.2007 6 months 25
Share & days
Commodity Ltd.
2. Utkal Investment 27.06.2008 15.05.2010 22 months
Ltd. 19 days
3. Respondent No.2 04.07.2011 30.11.2013 28 months
27 days
TOTAL 58 months
LPA No.160/2015 Page 15
and 11 days
or 4 years 10
months and
11 days.
14. In view of the above, we have no option but to hold that the
Appellant did not have the requisite experience as stipulated in the
advertisement issued by the Respondent No.2 for the post of Company
Secretary and therefore could not have been considered for the said
appointment.
15. The Appellant claims that the experience should have been
rounded off in terms of months and where part of a month was being
claimed, the same should have been rounded off as a complete month.
In support of her claim, the Appellant has drawn our attention to the
application form wherein the duration of employment as sought was in
terms of month/year and not days. However, we are not inclined to
accept this contention of the Appellant in as much as along with the
application form the candidate was required to submit documents in
support of their claim for experience and such documents clearly show
the exact date of appointment and cessation of such employment with
each employer. Even otherwise, the Appellant had claimed a total
experience of 7 years 3 months in her application form. From this if
we deduct the experience claimed by her as a Management Trainee
with "NIRC of the ICSI" (1 month), ONGC (14 months) and Delhi
Stock Exchange Association Ltd. (14 months), she would, on her own
application, fall short of the 5 years experience as Company Secretary.
LPA No.160/2015 Page 16
16. Faced with the above, the Appellant has contended that she had
not concealed or misrepresented any information in respect of her
employment/experience in the application form and therefore her
appointment cannot be faulted. This argument of the Appellant was
rejected by the Single Judge observing as under:
"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
LPA No.160/2015 Page 17
requirement, appointment of the petitioner may at some
later point of time be validly questioned."
17. We agree with the Single Judge. Once we have held that the
Appellant did not possess required experience, termination of her
services cannot be faulted. Giving any relief to the Appellant would
tantamount to appointing a person who was otherwise not qualified for
the said post. The Supreme Court in the case of Rakesh Kumar
Sharma v. State (NCT of Delhi) and Ors., (2013) 11 SCC 58 has held
as under:-
"There is no obligation on the court to protect an illegal
appointment. The extraordinary power of the court
should be used only in an appropriate case to advance
the cause of justice and not to defeat the rights of others
or create arbitrariness. Usurpation of a post by an
ineligible candidate in any circumstance is
impermissible."
18. The Learned Counsel for the Appellant further argued that the
respondent No.2 enjoyed a power of relaxation of the prescribed
experience qualification and as such either it exercised the said power
in favour of the Appellant or should be deemed to have exercised the
said power while appointing the Appellant. The said contention of the
Appellant is also not acceptable inasmuch as no such relaxation is
evident from the records of the case and even otherwise such
relaxation would be contrary to law. The Supreme Court in the case of
Ashok Kumar Sonkar v. Chander Shekhar & Ors., (1997) 4 SCC 18
has held that an Advertisement/Notification issued/published calling
for an application constituted a representation to the public and the
LPA No.160/2015 Page 18
authority issuing it is bound by said representation. It cannot act
contrary to it.
19. Learned counsel for the Appellant further bsought to rely upon
the experience gained by the Appellant while continuing to work as
Company Secretary with respondent No.2 for the period December
2013 to January 2015. The application clearly stipulated that
experience of 5 years has to be processed by the candidate as on
30.11.2013 and therefore the experience gained by the Appellant for
the period thereafter certainly cannot be counted to make her eligible
for appointment to the said post.
20. Learned counsel for the Appellant then argued that even if her
termination is upheld, as she was already working as Company
Secretary with Respondent No.2, albeit on contract basis, she should
be reverted to the same status. The said argument is also fallacious in
as much as the said appointment, on the face of it, was contractual in
nature and once her regular appointment is found illegal and is rightly
terminated, no claim of reversion to status of contractual employee
can be entertained by this Court. Contractual appointment ended with
the regular appointment. The termination of the regular appointment
would not revive the contract of employment.
21. In view of the above, we find no merit in the appeal and same is
dismissed with no order as to cost.
NAVIN CHAWLA, J
SANJIV KHANNA, J
JULY 31, 2017/vp
LPA No.160/2015 Page 19
