Brijnesh Dubey v. National School of Drama & Ors.

Delhi High Court · 13 Mar 2023 · 2023:DHC:1829-DB

SATISH CHANDRA SHARMA; SUBRAMONIUM PRASAD

LPA 166/2023

2023:DHC:1829-DB

administrative appeal_dismissed Significant

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The Delhi High Court upheld the appointment of a contractual employee as Upper Division Clerk, holding that the five years’ experience requirement did not mandate continuous service and that contractual experience was valid under the recruitment rules.

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Neutral Citation Number: 2023/DHC/001829

LPA 166/2023
HIGH COURT OF DELHI

JUDGMENT

reserved on: 07.03.2023

Judgment delivered on: 13.03.2023

LPA 166/2023
BRIJNESH DUBEY ..... Appellant
Through: Mr. Nimish Chib, Advocate

versus

NATIONAL SCHOOL OF DRAMA & ORS ...... Respondents
Through: Ms. Tamali Wad, Advocate for R-1 Mr. Vikrant N Goyal, Ms. Tesu Gupta, Ms. Ayushi Garg, Advocates for R-3

CORAM:

HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

SATISH CHANDRA SHARMA, C.J.

1. The present Letters Patent Appeal is arising out of order dated 15.11.2022 passed by the learned Single Judge in W.P.(C.) No. 26/2020, dismissing the writ petition.

2. The facts of the case reveal that the Appellant before this Court (Writ Petitioner), at the relevant point of time was serving as a Lower Division Clerk in the services of National School of Drama and had preferred the writ petition being aggrieved by the order dated 11.03.2019 passed by Respondent No.1, appointing Respondent No.2 on the post of Upper Division Clerk.

3. The facts further reveal that an advertisement was issued by the organization National School of Drama inviting applications for the post of Upper Division Clerk (Direct Recruitment) in the month of July, 2017 and Digitaaly the Appellant, Respondent No.2 as well as large number of candidates submitted their applications. A process of selection took place which was in three stages (a) objective test which was qualifying in nature (b) subjective test (c) skill test which was again qualifying in nature. The process of selection was concluded and the Appellant obtained 42 marks whereas the Respondent No.2 obtained 43 marks. The organization based upon the performance in the process of selection has issued an Appointment Letter dated 11.03.2019 appointing Respondent No.2 on the post of Upper Division Clerk and being aggrieved by the order of appointment of Respondent No.2 a writ petition was preferred before this Court. The Appellant before the learned Single Judge raised an issue that Respondent No.2 does not have continuous 5 years’ experience in a Government financed autonomous body/ Government Organization or an educational institute of repute and, therefore, as he was working as a contractual employee since 17.09.2008 with intermittent breaks, his experience could not have been taken into account while selecting him as Upper Division Clerk as 5 years’ experience was a mandatory condition as per the recruitment rules and as per the advertisement issued by Respondent No.1.

4. A reply was filed in the matter and it was brought to the notice of the learned Single Judge that the Respondent No.2 was having 9 years’ experience at the time he submitted the application for the post of Upper Division Clerk and not the advertisement, nor the recruitment rules provide for experience as a regular employee and as Respondent No.2 was having 9 years’ experience, he has been rightly selected being a more meritorious candidate than the Appellant. Digitaaly

5. The learned Single Judge has dismissed the writ petition. Paragraphs 8 to 12 of the order passed by the learned Single Judge read as under:

“8. Having considered the submissions of the learned counsel for the parties, I find that in the light of the admitted position that respondent no.2 was found to be more meritorious vis-à-vis the petitioner, the only question which arises for consideration of this Court is as to whether the respondent no.2 possessed the necessary five years experience as envisaged under the advertisement. 9. In order to determine this short question, it would be necessary to refer to the relevant qualification and experience criteria as mentioned in the advertisement issued by the respondent no.1. The same reads as under: “Qualification & Experience Essential 1. Graduate of an Indian University or possessing equivalent qualification. 2. 5 years experience of work in a Government financed autonomous body or a Government organization or an educational institute of repute.” 10. The aforesaid clause which prescribes five years experience of work in a Government financed autonomous body or a Government organization or an educational institute of repute, does not anywhere specify that the experience is to be by way of uninterrupted and continuous service. It also does not state that experience acquired on an appointment which is contractual in nature will not be taken into account. The respondent no.2, admittedly had been working as a typist in respondent no.1 on contractual basis w.e.f 17.09.2008 with artificial breaks of mostly one day except in March 2008, when she was given a break of one month. She, therefore, had almost 9 years of work experience in a government organization/respondent no.1. Moreover, the respondent no.1, who is the author of the conditions

Digitaaly prescribed in the advertisement has taken a categorical stand before this Court that the experience as prescribed under the advertisement did not imply that a candidate must have uninterrupted service of five years or that the said experience should be acquired only while working on a regular post. It has been contended by respondent no.1 that the experience as envisaged under the advertisement included experience acquired by a candidate on a contractual post as also experience which may not have been continuous but with short breaks provided the same totalled to more than 5 years. Having perused the aforesaid clause laying down the eligibility experience, I do not find this interpretation given by the respondent no.1 to be arbitrary or unreasonable in any manner and therefore, see no reason to disregard this interpretation given by respondent no.1

11. In this regard, reference may be made to the decision of Apex Court in Agmatel India (P) Ltd. Vs. Resoursys Telcom, (2022) SCC OnLine SC 113 wherein the Court, while dealing with a clause in a tender document, emphasised that author of a document is taken to be the best person to understand and appreciate its requirement and the Court must exercise restraint while interfering with the interpretation given by the author of the tender document. The said principles in my view, would be equally applicable while dealing with an eligibility clause like the one in the present case. The relevant extracts of the said decision read as under-

24. The scope of judicial review in contractual matters, and particularly in relation to the process of interpretation of tender document, has been the subjectmatter of discussion in various decisions of this Court. We need not multiply the authorities on the subject, as suffice it would be refer to the three-Judge Bench decision of this Court in Galaxy Transport Agencies wherein, among others, the said decision in Digitaaly Afcons Infrastructure has also been considered; and this Court has disapproved the interference by the High Court in the interpretation by the tender inviting authority of the eligibility term relating to the category of vehicles required to be held by the bidders, in the tender floated for supply of vehicles for the carriage of troops and equipment.

26. The abovementioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible: and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given.

12. I, therefore, do not see any reason to interfere with the impugned order. The writ petition being meritless is, accordingly, dismissed with no orders as to costs. ”

6. This Court has carefully gone through the record and heard learned Counsel for the parties at length. The undisputed facts of the case make it very clear that an advertisement was issued in July, 2017 inviting applications for the post of Upper Division Clerk and the advertisement which is on record is reproduced as under: Digitaaly Digitaaly

7. The aforesaid advertisement provides for 5 years’ experience in a Government financed autonomous body or an educational institute of repute. The Respondent No.2 was certainly having 9 years’ experience though a contractual employee and the advertisement nowhere provides that the experience has to be by way of uninterrupted and continuous service. The advertisement also does not provide that contractual experience obtained by a person while serving as a contractual employee will not be taken into account and in those circumstances as the Respondent No.2 was having 9 years of experience; the learned Single Judge was justified in dismissing the writ petition. Another important aspect of the matter is that another ground was raised by the Appellant before the learned Single Judge as well before this Court that under the recruitment rules for the purposes of promotion 5 years’ regular service in the grade is a mandatory qualification. The relevant clauses of the recruitment rules are reproduced as under:

5 Age for direct recruitment 30 years and below Relaxation as per Para 3 of these Rules which is- (a) The method of recruitment, age limit qualification and other matters relating to the said posts shall be as specified in these Rules However, Digitaaly whenever any recruitment is made on deputation basis, the period of said deputation shall be as per extant govt. rules as amended from time to time. (b) The upper age limit prescribed for Direct Recruitment shall be relaxable in case of candidates belonging to the Scheduled Castes. Scheduled Tribes, Other Backward Classes (Central List), Physically Challenged, Ex-servicemen and other specified categories of persons in accordance with the orders issued in this behalf from time to time by the Central Government and adopted by the NSD Society from time to time.

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Direct recruits shall not be insisted upon in case of departmental candidates provided they have rendered at least three years regular service in the NSD. The upper age limit for Group C & NITS posts only will also be relaxed to the extent of maximum 5 years for service rendered by the person who are already working on contract/daily wages/ad-hoc basis in the NSD provided they have put in at least one year of service further the upper age limit will also be relaxed for applications seeking or granted appointment on compassionate grounds on contractual terms. (The relaxation will be subject to other applicable rules and also production of relevant experience certificate from the NSD where the applicant has served)

6 Educational and other Qualifications required for direct recruitment Essential:- 1- Graduates of recognized university 2 - 5 years experience as LDC in Pay Level 2 Digitaaly of Pay Matrix regarding work in a Government financed autonomous body or a Government organization or an educational institute of repute. Note 1. Qualifications are relaxable at the discretion of the competent authority in the case of candidates otherwise well qualified. Note 2. The qualification(s) regarding experience is relaxable at the discretion of the competent authority in the case of candidates belonging to Scheduled Castes or Scheduled Tribes if at any stage of selection the competent authority is of the opinion that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up the vacancy reserved for them. Desirable

1. Knowledge of computer application X X X X X X

11 In case of recruitment by promotion/ deputation/ transfer, grades from which promotion/ deputation/ transfer is to be made. L.D.C. with 5 years regular service in the grade.

8. The aforesaid recruitment rules makes it very clear that for the purpose of direct recruitment as the recruitment has to be made from open market, the condition of 5 years’ regular service in the grade of Lower Division Clerk is not at all in existence in respect of direct recruitment. The condition of 5 years’ regular service in the grade of LDC is applicable only in respect of promotion and, therefore, the arguments canvassed by learned counsel for the Appellant that the Respondent No.2 was not having 5 years’ regular service in the grade of LDC is of no help to the Appellant. Another Digitaaly important aspect of the case is that the Appellant has also been promoted later on under the promotional quota as Upper Division Clerk w.e.f. 15.06.2022, meaning thereby, he is already enjoying the post of Upper Division Clerk and wants the appointment of Respondent No.2 to be quashed on the ground that he does not have the requisite experience as provided under the recruitment rules. This Court fails to understand as to how Respondent No.2 does not have requisite experience. Respondent No.2 was having 9 years of experience to his credit as a Lower Division Clerk, though he was a contractual employee and has proved his worth by securing more marks than the Appellant in the process of selection.

9. This Court does not find any reason to interfere with the order passed by the learned Single Judge and, accordingly, the LPA is dismissed. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE (SUBRAMONIUM PRASAD)

Brijnesh Dubey v. National School of Drama & Ors.

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