Devastotra Poddar & Anr. v. Food Safety and Standards Authority of India & Ors.

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 7 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 8 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 9 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 10 Qualification for direct recruitment as per the advertisement Educational and other qualifications required for direct recruits as per the recruitment rules (i)“Master Degree from recognized University or Institution in Chemistry or Biochemistry or Food Technology or Food Science & Technology or Food & Nutrition or Edible Oil Technology or Microbiology or Dairy Technology or Agricultural or horticultural Sciences or Industrial Microbiology or Toxicology or Public Health or Life Science or Biotechnology or Fruit & Vegetable Technology or Food Safety & Quality Assurance OR PG Diploma of atleast one year duration in Food Safety or Food Science or Food Processing or Quality Assurance in Food sector or Dietetic and Public Health or Nutrition or Dairy Science or Bakery Science or Post Harvest Technology from a Govt. recognized University/ Institute with a condition that candidates who have completed these PG Diploma courses, must have studied anyone of following subjects at their Bachelor’s degree level i.e. Chemistry or Biochemistry or Food Technology or Food Science & Technology or Food & Nutrition or Edible Oil Technology or Microbiology or Dairy Technology or Agricultural or horticultural Sciences or Industrial Microbiology or Toxicology or Public Health or Life Science or Biotechnology or Fruit & Vegetable Technology or Food Safety & Quality Assurance or Food Processing Technology or Fruit & Vegetable or Medicine or Veterinary (i)“Master Degree from a recognized University or Institution in Chemistry or Biochemistry or Food Technology or Food Science & Technology or Food & Nutrition or Edible Oil Technology or Microbiology or Dairy Technology or Agricultural or horticultural Science or Industrial Microbiology or Toxicology or Public Health or Life Fruit & Vegetable Technology or Food Safety & Quality Assurance or any other subject as approved by Food Authority from time to time OR PO Diploma of atleastone year duration from a recognized University or Institution in Food Safety and Quality Assurance (under appropriate nomenclature) and approved by the Food Authority from time to time OR BE or B.Tech in Food Technology or Dairy Technology or Biotechnology or Oil Technology or Food Process Engineering or Food Processing Technology or Fruit & Vegetable Technology or Food Safety & Quality Assurance or Bachelor's degree (not less than four years duration) in Medicine or W.P.(C)132/2021 Page 11 sciences or Fisheries or Animal Sciences”

OR BE or B.Tech in Food Technology or Dairy Technology or Biotechnology or Oil Technology or Food Process Engineering or Food Processing Technology or Fruit & Vegetable Technology or Food Safety & Quality Assurance or Bachelor’s degree (not less than four years duration) in Medicine or Veterinary sciences or Fisheries or Animal Sciences. Desirable qualification:- Doctorate Degree in any of the aforesaid subjects And

(ii) five Years relevant experience.

Desirable: Graduate Aptitude Test Engineering or Council of Scientific and Industrial Research or Indian Council of Agricultural Research National Eligibility Test. Note 1: Out of the total experience sought, two years of experience should be 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] lakh for last two years. Note 2: Qualifications are relaxable at the discretion of the competent authority in the case of candidates otherwise well qualified. Note[3]: 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 Veterinary sciences or Fisheries or Animal Sciences or any other subject as approved by Food Authority from time to time. Desirable qualification:- Doctorate Degree in any of the aforesaid subjects And

(ii) five experience Years relevant

Desirable: Graduate Aptitude Test Engineering or Council of Scientific and Industrial Research or Indian Council of Agricultural Research National Eligibility Test. Note 1: Out of the total experience sought, two years of experience should be 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 comparable annual cost to company for last two years to be decided by the competent authority and shall be indicated in the advertisement on each occasion. Note[2]: Qualifications are relaxable at the discretion of the competent authority in the case of candidates otherwise well qualified. Note[3]: The qualification(s) regarding experience is relaxable at the discretion of the competent authority in the case of candidates belonging to W.P.(C)132/2021 Page 12 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.” Scheduled Castes or Scheduled Tribes if at any state 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. (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 13 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 14 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 15 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 CA[4] 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 16 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 17 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