Eligibility conditions while hiring must be strictly adhered to: Delhi High court
Strict adherence to conditions mentioned in the advertisement for a job hiring must be followed while being considered for a post. If such an adherence is not made, they cannot be considred for the post and the appointment of such Individuals is illegal. This was held by the Hon’ble Justice V. Kameswar Rao in the case of Devastotra Poddar & ANR. Vs. Food Safety And Standards Authority Of India and Ors. [W.P.(C) 132/2021] on the 04th of August 2021 before the Hon’ble High Court of Delhi.
The brief facts of the case are, 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. The petitioners have also challenged the appointment of the respondent Nos.13 to 17 as Assistant Director. 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. 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. The respondent Nos.3 to 12 were 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. 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.
The counsel for the petitioner submits that, e advertisement issued by the respondent No.1 for the post of Assistant Director contemplated under heading Note-1 that out of the total experience of five years sought for the post of Assistant Director, 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. 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/-. However, the respondents were working with a pay level of 7. The counsel for the respondents submits that, he Recruitment Rules have to be read in conjunction with the advertisement issued by the respondent No.1 by drawing the 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. 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. Furthermore, it was also 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.
The learned judge heard the submissions by both the parties and observed that “The five year’s 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 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. 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 means, the condition of lower pay level needs to be satisfied, as the same is prescribed under direct recruitment and also in the advertisement.” The petition was allowed and the appointment of the respondents was set aside.