Delhi High Court
Devastotra Poddar & Anr. vs Food Safety And Standards ... on 4 August, 2021
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: August 04, 2021
+ W.P.(C) 132/2021
DEVASTOTRA PODDAR & ANR.
..... Petitioner
Through: Mr. Samrat Nigam and
Mr. Abhimanyu A. Walia, Advs.
versus
FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA &
ORS. ..... Respondents
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
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
1. 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
appointed for the post of Assistant Director
(Technical) as published by the Respondent No.1,
Food Safety and Standards Authority of India.
W.P.(C)132/2021 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 Director (Technical);
(c) Pass such other or further orders or directions
as 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."
2. 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 the
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 (Technical). 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 (Technical). The respondent Nos.3 to 12 were
W.P.(C)132/2021 Page 2
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.
3. 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 (Technical).
4. It is the submission of Mr.Samrat Nigam, learned counsel
for the petitioners that the advertisement issued by the respondent
No.1 for the post of Assistant Director (Technical) contemplated
under heading Note-1 that out of the total experience of five
years sought for the post of Assistant Director (Technical), 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.
5. This according to him, was due to the fact that the
respondent Nos.3 to 12 being contractual Technical Officers
W.P.(C)132/2021 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 (Recruitment and Appointment) 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.
6. 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 (Technical). Since, the post of Assistant
Director (Technical) 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
W.P.(C)132/2021 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.
7. 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.
8. 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 (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.
9. Mr. Shanker Raju, learned counsel for the respondent
Nos.13 and 14 would contest the challenge to the appointment of
W.P.(C)132/2021 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 (Technical). He
has drawn my attention to various annexures filed by the said
respondents along with their counter affidavit.
10. Mr. Govind Jee, learned counsel for the respondent No.9
submits, the petitioners at the time of applying for the concerned
post did not choose to agitate the issue concerning eligibility of
contractual employees (Technical Officer) 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.
11. 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., (1995) 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., (2010) 12
SCC 576, Madras Institute of Development Studies and Anr. v.
K. Sivasubramaniyan and Ors., (2016) 1 SCC 454 and Ashok
Kumar and Anr. v. State of Bihar and Ors., (2017) 4 SCC 357.
12. He further submits that the present petition is not
maintainable as in the petition, the petitioners have alleged
W.P.(C)132/2021 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.
13. 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 (Technical), two years should have been in
'immediate lower pay level' in central dearness allowance, or
equivalent industrial dearness allowance scale (as applicable) and
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.
14. 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.
15. 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
W.P.(C)132/2021 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 (Contractual) 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
immediately rejected the application and cancelled the
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. (3) SCC 268.
16. 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 the
eligibility criteria as per the need and requirement of the
organization. He seeks the dismissal of the petition.
17. 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
W.P.(C)132/2021 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.
18. 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 Director (Technical) on 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 (1) of section 92 of the Food Safety and
Standard Act, 2006 duly notified on October 01, 2018 and as
such statutory in nature.
19. 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 (Technical). I also highlight
the relevant pay levels in the central dearness allowance as under:
Pay level Pay Band Grade
Pay
Pay level 10 56,100-1,77,500 5400
Pay level 9 53,100-1,51,100 5400
Pay level 8 47,600-1,51,100 4800
Pay level 7 44,900-1,42,400 4600
W.P.(C)132/2021 Page 9
Qualification for direct recruitment as per the Educational and other
advertisement qualifications required for
direct recruits as per the
recruitment rules
(i)"Master Degree from recognized (i)"Master Degree from a
University or Institution in Chemistry recognized University or
or Biochemistry or Food Technology Institution in Chemistry or
or Food Science & Technology or Biochemistry or Food
Food & Nutrition or Edible Oil Technology or Food Science &
Technology or Microbiology or Dairy Technology or Food & Nutrition
Technology or Agricultural or or Edible Oil Technology or
horticultural Sciences or Industrial Microbiology or Dairy
Microbiology or Toxicology or Technology or Agricultural or
Public Health or Life Science or horticultural Science or
Biotechnology or Fruit & Vegetable Industrial Microbiology or
Technology or Food Safety & Quality Toxicology or Public Health or
Assurance Life Fruit & Vegetable
Technology or Food Safety &
OR Quality Assurance or any other
subject as approved by Food
PG Diploma of atleast one year
Authority from time to time
duration in Food Safety or Food
Science or Food Processing or OR
Quality Assurance in Food sector or
Dietetic and Public Health or PO Diploma of atleastone year
Nutrition or Dairy Science or Bakery duration from a recognized
Science or Post Harvest Technology University or Institution in Food
from a Govt. recognized University/ Safety and Quality Assurance
Institute with a condition that (under appropriate
candidates who have completed these nomenclature) and approved by
PG Diploma courses, must have the Food Authority from time to
studied anyone of following subjects time
at their Bachelor's degree level i.e.
Chemistry or Biochemistry or Food OR
Technology or Food Science &
BE or B.Tech in Food
Technology or Food & Nutrition or
Technology or Dairy
Edible Oil Technology or
Technology or Biotechnology or
Microbiology or Dairy Technology or
Oil Technology or Food Process
Agricultural or horticultural Sciences
Engineering or Food
or Industrial Microbiology or
Processing Technology or Fruit
Toxicology or Public Health or Life
& Vegetable Technology or
Science or Biotechnology or Fruit &
Food Safety & Quality
Vegetable Technology or Food Safety
Assurance or Bachelor's degree
& Quality Assurance or Food
(not less than four years
Processing Technology or Fruit &
duration) in Medicine or
Vegetable or Medicine or Veterinary
W.P.(C)132/2021 Page 10
sciences or Fisheries or Animal Veterinary sciences or Fisheries
Sciences" or Animal Sciences or any other
subject as approved by Food
OR Authority from time to time.
BE or B.Tech in Food Technology or Desirable qualification:-
Dairy Technology or Biotechnology
or Oil Technology or Food Process Doctorate Degree in any of the
Engineering or Food Processing aforesaid subjects
Technology or Fruit & Vegetable
Technology or Food Safety & Quality And
Assurance or Bachelor's degree (not
(ii) five experience Years
less than four years duration) in
relevant
Medicine or Veterinary sciences or
Fisheries or Animal Sciences. Desirable: Graduate Aptitude
Test Engineering or Council of
Desirable qualification:- Doctorate
Scientific and Industrial
Degree in any of the aforesaid
Research or Indian Council of
subjects And
Agricultural Research National
(ii) five Years relevant experience. Eligibility Test.
Desirable: Graduate Aptitude Test Note 1: Out of the total
Engineering or Council of Scientific experience sought, two years of
and Industrial Research or Indian experience should be in
Council of Agricultural Research immediate lower pay level in
National Eligibility Test. central dearness allowance, or
equivalent industrial dearness
Note 1: Out of the total experience allowance scale (as applicable)
sought, two years of experience and in case of candidates
should be in immediate lower pay working in private sector he or
level in central dearness allowance, she shall be drawing minimum
or equivalent industrial dearness comparable annual cost to
allowance scale (as applicable) and company for last two years to be
in case of candidates working in decided by the competent
private sector he or she shall be authority and shall be indicated
drawing minimum annual cost to in the advertisement on each
company of Rs 9.7 lakh for last two occasion.
years.
Note2: Qualifications are
Note 2: Qualifications are relaxable relaxable at the discretion of the
at the discretion of the competent competent authority in the case
authority in the case of candidates of candidates otherwise well
otherwise well qualified. qualified.
Note3: The qualification(s) regarding Note3: The qualification(s)
experience is relaxable at the regarding experience is
discretion of the competent authority relaxable at the discretion of the
in the case of candidates belonging to competent authority in the case
Scheduled Castes or Scheduled of candidates belonging to
W.P.(C)132/2021 Page 11
Tribes if at any stage of selection, the Scheduled Castes or Scheduled
competent authority is of the opinion Tribes if at any state of
that sufficient number of candidates selection, the competent
from these communities possessing authority is of the opinion that
the requisite experience are not likely sufficient number of candidates
to be available to fill up the vacancy from these communities
reserved for them." possessing the requisite
experience are not likely to be
available to fill up the vacancy
reserved for them.
(emphasis supplied)
20. 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 the
Recruitment Regulations shall be eligible for
weightage in selection process. The weightage shall
W.P.(C)132/2021 Page 12
be given on two parameters viz. number of years of
service rendered in the Authority (30% weightage)
plus Performance Appraisal (70% weightage). The
performance appraisal shall be done by a committee
nominated by Appointing Authority. The weightage
as above shall be added at the first level of selection
as applicable to each post and the total combined
weightage on account of both parameters (i.e. no. of
years of relevant experience plus Performance
Appraisal) should not exceed 10% of the total score
for the entire selection process."
21. They also relied upon the clause 'j' which stipulates the
posts are also open to the employees of Food Authority (staff
candidates) 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
W.P.(C)132/2021 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
equivalent industrial dearness allowance scale, but, that
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.
22. 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
W.P.(C)132/2021 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.
23. 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 Director (Technical). If they
could not have been considered for the said post, they could not
have been appointed.
24. Insofar as the appointment of respondent Nos.13 and 14
are concerned I agree with the submission of Mr.Raju that no
specific averments as to how their appointment is illegal have
been spelt out by the petitioners in the writ petition. In fact, it is
the case of the respondent Nos.13 and 14 that they were working
as Consultants on consolidated basis in pay level 10 and Mr.
Raju in that regard has relied upon the existing pay scales and
corresponding pay level under the 7th Central Pay Commission
annexure CA4 in support of his contention. This plea of Mr.Raju
is not seriously contested by Mr.Nigam.
25. The plea of Mr.Govind Jee that the petitioners are
estopped from challenging the eligibility of the respondent Nos.3
to 12 is not appealing. Strictly going by the terms of the
Recruitment Rules for direct recruitment which are statutory, the
only conclusion that can be drawn is that for direct recruitment, a
person needs to have five years of experience which includes two
W.P.(C)132/2021 Page 15
years in the immediate lower pay level in the CDA which is pay
level 9.
26. The reliance placed by Mr.Govind Jee on the judgment in
the case of Madan Lal and Ors. (supra) has 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.
27. Similarly, the reliance placed by Mr.Govind Jee on the
judgments in the case of Manish Kumar Sahi (supra), Madras
Institute of Development Studies and Anr. (supra) and Ashok
Kumar and Anr. (supra) on similar proposition of law also have
no applicability.
28. The plea of Mr.Govind Jee that, the lower post to
Assistant Director (Technical) (in pay level 10) is that of
Technical Officer (in pay level 7) 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.
29. 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.
30. Insofar as the judgment in the case of Babita Prasad &
Ors. (supra) relied upon by Mr.Govind Jee in support of his
W.P.(C)132/2021 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 Director (Technical) shall 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.
31. 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.
32. The petition is disposed of to the aforesaid extent.
No costs.
V. KAMESWAR RAO, J
AUGUST 04, 2021/aky
W.P.(C)132/2021 Page 17
