RITU BHATIAversusMINISTRY OF CIVIL SUPPLIES CONSUMER AFFAIRS & PUBLIC DISTRIBUTION AND OTHERS

                         [2019] 3 S.C.R. 663                              663


                           RITU BHATIA                                    A
                                  v.
   MINISTRY OF CIVIL SUPPLIES CONSUMER AFFAIRS &
             PUBLIC DISTRIBUTION AND OTHERS
                   (Civil Appeal No. 1467 of 2019)                        B
                        FEBRUARY 05, 2019
        [L. NAGESWARA RAO AND M. R. SHAH, JJ.]
       Service Law – Termination – Respondent no.2 invited
applications for the post of Company Secretary – Advertisement            C
provided for five years post qualification mandatory experience
as a Company Secretary as on 30.11.2013 in a PSU/Private
Company of repute – Appellant applied for the post of Company
Secretary and was appointed to the post of Company Secretary –
Appellant’s service terminated by respondent no.2 on the ground
                                                                          D
that she did not have the requisite five years’ experience for the
post of Company Secretary – Challenge by appellant before the
High Court, dismissed – Held: As per appellant she was working as
Assistant Company Secretary for the period between June 2008 to
May 2010 in Utkal Investments Limited, as Management Trainee in
the Delhi Stock Exchange Association Limited for the period between       E
April 2005 to June 2006, and as Management Trainee in ONGC
for the period between May 2003 to June 2004 – Her appointment
as Management Trainee cannot be equated and/or considered as
appointment ‘as’ a Company Secretary – Word ‘as’ used in the
advertisement should be given a literal meaning – It cannot be said
                                                                          F
that the appellant had, while working as a ‘Management Trainee’,
functioned ‘as’ a ‘Company Secretary – Word ‘as’ and the words
‘experience as Company Secretary’ used in the advertisement are
very clear and means that the candidate ought to be appointed and
worked ‘as’ a Company Secretary – Appellant had no experience
of five years ‘as Company Secretary and she did not fulfil the            G
eligibility criteria of having five years post qualification experience
‘as’ Company Secretary as on 30.11.2013 – Services of the appellant
rightly terminated.


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                                 663
664            SUPREME COURT REPORTS                       [2019] 3 S.C.R.


A           Dismissing the appeal, the Court
            HELD: 1.1 As per the case of the appellant she was working
      as Assistant Company Secretary for the period between June
      2008 to May 2010 in Utkal Investments Limited and she was
      working as Management Trainee in the Delhi Stock Exchange
B     Association Limited for the period between April 2005 to June
      2006, and as the Management Trainee in ONGC for the period
      between May 2003 to June 2004. Her appointment as
      Management Trainee cannot be equated and/or considered as
      appointment ‘as’ a Company Secretary. [Para 7.2][670-D-E]
C             1.2 The word ‘as’ used in the advertisement should be given
      a literal meaning. The respondent is the author of the
      advertisement and they are the best person to consider what
      they meant by using the word ‘as’. It is the specific case on behalf
      of the respondents that the intention behind the advertisement
      was that the applicant must have been appointed ‘as’ a Company
D     Secretary in PSU/Company of repute and functioned as such for
      five years to be eligible for appointment. According to the
      respondent, the purpose was that the person should have held
      the position of a Company Secretary in a PSU/Company of repute
      and discharged the statutory functions as such i.e. should have
E     held the position of responsibility. Therefore, when the word ‘as’
      is specifically used, the same is to be considered strictly and
      therefore the experience of the appellant, while working as a
      ‘Management Trainee’ cannot be considered as an experience
      of working ‘as’ a Company Secretary and/or it cannot be said that
      she was appointed ‘as’ a Company Secretary. If the period during
F     which the appellant had worked as a ‘Management Trainee’ is
      excluded, in that case, admittedly, the appellant would not be
      fulfilling the requisite eligibility criteria of having been appointed
      ‘as’ a Company Secretary in a PSU/Company of repute. It cannot
      be said that the appellant had, while working as a ‘Management
G     Trainee’, functioned ‘as’ a ‘Company Secretary. If submission on
      behalf of the appellant is accepted that by performing duties as
      ‘Management Trainee’ she was also performing some duties as
      ‘Company Secretary’ and therefore she can be said to have fulfilled
      the eligibility criteria of having been appointed ‘as’ a Company
      Secretary, in that case, it would be against the intent. If the
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RITU BHATIA v. MINISTRY OF CIVIL SUPPLIES CONSUMER                            665
          AFFAIRS & PUBLIC DISTRIBUTION

intention was such, in that case, the wording in the advertisement            A
should have been that the candidate should have the experience
of the similar nature of work as “Company Secretary”. In the
advertisement, it has been specifically and categorically stated
that a candidate shall have post qualification experience of five
years ‘as’ Company Secretary. The word used “experience as
                                                                              B
Company Secretary” has to be given meaning that a candidate
must have been appointed ‘as’ a Company Secretary and shall
have actually worked ‘as’ a Company Secretary for five years.
Giving other meaning would be changing the eligibility criteria
as mentioned in the advertisement. The appellant has no
experience of five years ‘as’ Company Secretary, as she was                   C
appointed and/or worked as ‘Management Trainee’ or ‘Assistant
Company Secretary’. [Paras 7.3, 7.4][670-F-H; 671-A-E]
      1.3 In the present case, the word ‘as’ and the words
‘experience as Company Secretary’ used in the advertisement
are very clear and it means the candidate ought to be appointed               D
and worked as such ‘as’ a Company Secretary. As appellant did
not fulfil the eligibility criteria of having five years post qualification
experience ‘as’ Company Secretary as on 30.11.2013, the services
of the appellant have rightly been terminated. [Paras 7.6, 8][672-
E-G]
                                                                              E
      Dr. Asim Kumar Bose v. Union of India and Others
      (1983) 1 SCC 345 : [1983] 2 SCR 16 – distinguished.
                         Case Law Reference
      [1983] 2 SCR 16             distinguished             Para 5.5
                                                                              F
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1467
of 2019.
     From the Judgment and Order dated 31.07.2017 of the High Court
of Delhi at New Delhi in L.P.A. No. 160 of 2015.
      Sunil Kumar, Sr. Adv., Ms. Rohini Prasad, Ashish Kumar, Akshat          G
Chaitanya, Mrs. Sarla Chandra, Advs. for the Appellant.
     Gaurab Banerji, Sr. Adv., Ashish Tiwari, Gaurav Agrawal,
Ms. Manisha Singh, Advs. for the Respondents.

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666            SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A           The Judgment of the Court was delivered by
            M. R. SHAH, J. 1. Leave granted.
             2. Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the Division Bench of the High Court of Delhi
      dated 31.07.2017 passed in Letter Patent Appeal (LPA) No.160 of 2015
B     by which the Division Bench has dismissed the said appeal and has
      confirmed the judgment and order passed by the learned Single Judge
      dated 02.02.2015 passed in Writ Petition (C) No.977 of 2015 dismissing
      the said writ petition by not interfering with the order terminating the
      services of the appellant, the original writ petitioner has preferred the
C     present appeal.
             3. That respondent no.2 herein-Central Railside Warehouse
      Company Limited invited applications for the post of Company Secretary.
      That respondent no.2’s advertisement, specifically provided for, five years
      post qualification mandatory experience as a Company Secretary as on
D     30.11.2013 in a PSU/Private Company of repute. The appellant herein
      applied for the post of Company Secretary. In her application she
      categorically stated that she had post qualification experience of seven
      years and three months. That thereafter she appeared in an interview
      held by respondent no.2 and was offered appointment to the post of
      Company Secretary vide memorandum dated 13.03.2014. Thereafter,
E     she was appointed on regular basis to the post of Company Secretary by
      Office Order dated 22.04.2014. A show cause notice dated 01.11.2014
      was issued by 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’ experience for the post of Company Secretary. The appellant
F     submitted her reply to the above show cause notice. Respondent no.2
      thereafter vide its order dated 02.01.2015 terminated the services of the
      appellant.
            4. The order of termination was challenged by the appellant before
      the High Court in Writ Petition (C) No.977 of 2015. By order dated
G     02.02.2015, the learned Single Judge dismissed the said petition. The
      order passed by the learned Single Judge dismissing the writ petition
      was the subject matter of the appeal before the Division Bench of the
      High Court by way of LPA No.160 of 2015. By the impugned judgment
      and order, the Division Bench has dismissed the said appeal and has
      confirmed the judgment and order passed by the learned Single Judge
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RITU BHATIA v. MINISTRY OF CIVIL SUPPLIES CONSUMER                           667
   AFFAIRS & PUBLIC DISTRIBUTION [M. R. SHAH, J.]

dismissing the writ petition. The order passed by the Division Bench in      A
LPA No.160 of 2015 is the subject matter of the present appeal.
       5. Shri Sunil Kumar, learned Senior Counsel has appeared on behalf
of the appellant herein and Shri Gourab Banerji, learned Senior Counsel
has appeared on behalf of respondent no.2 herein.
       5.1 Shri Sunil Kumar, learned senior counsel has submitted that in    B
the facts and circumstances of the case, the High court committed a
grave error in approving the order of termination on the ground that the
appellant was not having the requisite qualification of having experience
of five years as a Company Secretary. It is submitted by Shri Sunil
Kumar that the High Court has failed to appreciate the fact that though      C
during seven years and three months experience shown in her application,
the appellant might have been appointed as Management Trainee and
Assistant Company Secretary and consequently might not have been
actually appointed as the Company Secretary, however, the appellant
was discharging certain or some functions/duties during the period of a
Company Secretary. It is submitted that therefore it can be said that the    D
appellant was having requisite experience of five years as a Company
Secretary. Therefore, the period during which the appellant was working
as a Management Trainee is required to be counted as the requisite
experience for the post of Company Secretary.
      5.2 It is further submitted by Shri Sunil Kumar, learned senior        E
counsel that the object and purpose behind asking for the experience as
a Company Secretary was that the applicant has an experience of working
as Company Secretary and not that he/she had actually worked and/or
performed the duties as a Company Secretary under the provisions of
the Company Secretary Act 1980. It is submitted therefore, the High          F
Court committed an error to hold that the appellant was not having the
requisite experience as a Company Secretary.
      5.3 Relying upon prescribed format of submitting the application
attached with the application form, it is submitted that what was required
was the qualification/ experience as Company Secretary and not actual        G
working as Company Secretary.
       5.4 It is further submitted by Shri Sunil Kumar, learned senior
counsel that as far as the experience gained by the appellant while
working with Bharat Bhushan Shares and Commodity Brokers Limited
is concerned, the High Court has committed a grave error in considering
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668             SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A     the experience only till May, 2007, though the Form-32 shows the date
      of cessation as 29.06.2007.
             5.5 Relying upon the decision of this Court in the case of Dr. Asim
      Kumar Bose v. Union of India and Others (1983) 1 SCC 345, it is
      submitted by Shri Sunil Kumar that as observed and held by this Court,
B     the word ‘as’ must be interpreted in its ordinary sense as ‘in the capacity
      of’ or be interpreted as the words like, ‘similar to’, ‘of the same kind’,
      ‘in the same manner’ or ‘in the manner in which’. It is submitted,
      therefore, the word ‘as’ used in the advertisement should mean that the
      applicant shall have the experience similar as to or like or of the same
      kind of Company Secretary. It is submitted, therefore, the experience
C     gained by the appellant while working as Management Trainee and during
      which the appellant was also performing the similar duties of a Company
      Secretary, the said experience was required to be counted for the purpose
      of calculation of experience of five years as Company Secretary.
            5.6 Making above submissions it is prayed to allow the present
D     appeal and set aside the order passed by the High Court as well as the
      order of termination terminating the services of the appellant as a
      Company Secretary.
            6. Present appeal is opposed by Shri Gourab Banerji learned Senior
      Counsel appearing on behalf of the respondents. It is submitted by Shri
E     Banerji that in the advertisement, inviting the applications for the post of
      Company Secretary, it was specifically mentioned that the candidate
      must have an experience of five years as a Company Secretary. It is
      submitted that the obvious intention behind the advertisement was that
      the applicant must have been appointed ‘as’ a Company Secretary in
F     PSU/Company of repute and functioned as such for five years ‘as’ a
      Company Secretary, to be eligible for appointment.
             6.1 It is further submitted that the purpose was that the person
      should have held the position of a Company Secretary in a PSU/Company
      of repute and discharged the statutory functions as such i.e. should have
G     held the position of responsibility. It is submitted that in the present case
      and even from the particulars given by the appellant while submitting the
      application and even from the self-attested documents/experience
      certificates enclosed with the application, it can be seen that the appellant
      was not fulfilling the requisite eligibility criteria of having an experience
      of five years ‘as’ a Company Secretary. Shri Banerji further submits
H     that, as it is evident, during the period when the appellant claimed the
RITU BHATIA v. MINISTRY OF CIVIL SUPPLIES CONSUMER                              669
   AFFAIRS & PUBLIC DISTRIBUTION [M. R. SHAH, J.]

experience as required, the appellant worked as ‘Management Trainee’            A
and even as ‘Assistant Company Secretary’. It is submitted that
experience as ‘Management Trainee’ and or ‘Assistant Company
Secretary’, cannot be counted for the purpose of considering the eligibility
criteria of five years ‘as’ a Company Secretary.
        6.2 Further Shri Banerji submitted that, therefore, when it was         B
found that the total post qualification experience of the appellant ‘as’
Company Secretary was less than five years against the requirement of
minimum five years’ experience and thereafter when the services of the
appellant were terminated on the ground that at the time when the
application was invited, she was not fulfilling the eligibility criteria, her
services have been rightly terminated. It is submitted that the High Court      C
in the impugned judgment and order has considered in detail the experience
of the appellant while working in Delhi Stock Exchange Association
Limited; Bharat Bhushan Shares and Commodity Brokers Limited; Utkal
Investment Limited and thereafter considering the material on record,
has rightly refused to interfere with the order of termination and has          D
rightly rejected the petition.
        6.3 Shri Banerji. Learned counsel for the respondent has further
submitted that so far as the reliance placed upon the decision of this
Court in the case of Dr. Asim Kumar Bose (supra) relied upon by the
learned Senior Counsel appearing on behalf of the appellant is concerned,       E
it is submitted by Shri Banerji that on facts, the said decision shall not be
applicable to the facts of the case on hand. It is submitted that the said
decision is distinguishable on facts. It is submitted that, on interpretation
of the relevant rules, this Court held that the word ‘as’ in the collocation
of the words used “at least six years’ experience as Associate Professor/
Assistant Professor/reader” and the words “at least five years’ experience      F
as Reader/Assistant Professor” must be interpreted in its ordinary sense
as meaning teaching experience gained “in the capacity of”. It is
submitted that before this Court the question was whether a Specialists’
Grade II in a teaching hospital belonging to the Central Health Service
was eligible for appointment or promotion as a Professor or Associate           G
Professor of the concerned speciality? It is submitted therefore, the said
decision shall not be applicable to the facts of the case on hand. Making
above submissions, it is prayed to dismiss the present appeal.
      7. Heard the learned Senior Counsel appearing on behalf of the
respective parties at length. The question which is posed for consideration     H
670             SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A     before this Court is, whether in the facts and circumstances of the case
      can it be said that the appellant fulfilled the eligibility criteria mentioned
      in the advertisement of having experience of five years ‘as’ a Company
      Secretary and/or, can it be said that the period during which the appellant
      worked as ‘Management Trainee’ and/or ‘Assistant Company Secretary’
      be considered for treating the appellant having been appointed ‘as’ a
B
      Company Secretary so as to become eligible for the post of Company
      Secretary which was advertised?
            7.1 From the material on record, more particularly the application
      submitted by the appellant and the supporting self-attested documents
      and the certificates, it appears that according to the appellant she was
C     having seven years and three months post qualification experience. The
      same is reproduced and considered by the High Court in para 3 of the
      impugned judgment and order.
            7.2 Considering the above, it appears and even it can be seen
      from the relevant appointment orders, and even as per the case of the
D     appellant that she was working as Assistant Company Secretary for the
      period between June 2008 to May 2010 in Utkal Investments Limited
      and that she was working as Management Trainee in the Delhi Stock
      Exchange Association Limited for the period between April 2005 to June
      2006, and as the Management Trainee in ONGC for the period between
E     May 2003 to June 2004. Her appointment as Management Trainee cannot
      be equated and/or considered as appointment ‘as’ a Company Secretary.
              7.3 The word ‘as’ used in the advertisement should be given a
      literal meaning. The respondent is the author of the advertisement and
      they are the best person to consider what they meant by using the word
F     ‘as’. It is the specific case on behalf of the respondents that the intention
      behind the advertisement was that the applicant must have been
      appointed ‘as’ a Company Secretary in PSU/Company of repute and
      functioned as such for five years to be eligible for appointment. According
      to the respondent, the purpose was that the person should have held the
      position of a Company Secretary in a PSU/Company of repute and
G     discharged the statutory functions as such i.e. should have held the
      position of responsibility. Therefore, when the word ‘as’ is specifically
      used, the same is to be considered strictly and therefore the experience
      of the appellant, while working as a ‘Management Trainee’ cannot be
      considered as an experience of working ‘as’ a Company Secretary and/
H     or it cannot be said that she was appointed ‘as’ a Company Secretary.
RITU BHATIA v. MINISTRY OF CIVIL SUPPLIES CONSUMER                              671
   AFFAIRS & PUBLIC DISTRIBUTION [M. R. SHAH, J.]

If the period during which the appellant had worked as a ‘Management            A
Trainee’ is excluded, in that case, admittedly, the appellant would not be
fulfilling the requisite eligibility criteria of having been appointed ‘as’ a
Company Secretary in a PSU/Company of repute. It cannot be said that
the appellant had, while working as a ‘Management Trainee’, functioned
‘as’ a ‘Company Secretary.
                                                                                B
       7.4 If submission on behalf of the appellant is accepted that by
performing duties as ‘Management Trainee’ she was also performing
some duties as ‘Company Secretary’ and therefore she can be said to
have fulfilled the eligibility criteria of having been appointed ‘as’ a
Company Secretary, in that case, it would be against the intent. If the
intention was such, in that case, the wording in the advertisement should       C
have been that the candidate should have the experience of the similar
nature of work as “Company Secretary”. In the advertisement, it has
been specifically and categorically stated that a candidate shall have
post qualification experience of five years ‘as’ Company Secretary. The
word used “experience as Company Secretary” has to be given meaning             D
that a candidate must have been appointed ‘as’ a Company Secretary
and shall have actually worked ‘as’ a Company Secretary for five years.
Giving other meaning would be changing the eligibility criteria as
mentioned in the advertisement. As observed hereinabove, the appellant
has no experience of five years ‘as’ Company Secretary, as she was
appointed and/or worked as ‘Management Trainee’ or ‘Assistant                   E
Company Secretary’.
       7.5 Now, so far as the reliance placed upon the decision of this
Court in Dr. Asim Kumar Bose (supra) by learned Senior Counsel
appearing on behalf of the appellant is concerned, on considering the
facts of the case before this Court, we are of the opinion that the said        F
decision shall not be applicable to the facts of the case on hand. The
facts before this Court in the aforesaid decision are distinguishable. In
the aforesaid decision, the appellant was appointed to the Specialists’
Grade in substantive capacity as Radiologist in Irwin Hospital, Delhi
which was a teaching hospital. He was considered as an Associate                G
Professor of Radiology (ex officio) both by the Delhi University as well
as by the Maulana Azad Medical College, Delhi to which Irwin Hospital
was affiliated. He was not considered for the regular appointment to the
post of Associate Professor of Radiotherapy in that college on the ground
that his teaching experience as ex officio Associate Professor was not
to be counted. Rule 8(2-A) of the Central Health Service Rules was              H
672             SUPREME COURT REPORTS                            [2019] 3 S.C.R.


A     under consideration by this Court which provided that a candidate shall
      have the teaching experience as an Associate Professor. The appellant
      was having the experience as an Associate Professor of Radiology (Ex-
      officio) and therefore it was the case on behalf of the Union of India
      that he was not having the teaching experience as Associate Professor
      as he worked as an Associate Professor of Radiology (ex-officio). To
B
      that, this Court observed and held that the provisions contained in Rule
      8(2-A) and paragraph 3 of Annexure I to the Second Schedule of the
      Central Health Service Rules must be interpreted in a broad and liberal
      sense so as to avoid any injustice to person in specialists’ Grade like the
      appellant. This Court observed that the Rules nowhere provide that the
C     teaching experience gained by a Specialist in a teaching hospital as an
      Associate Professor (ex officio) shall not be counted towards the requisite
      teaching experience. This Court further observed that there is hardly
      any difference so far as the teaching experience is concerned whether
      it is acquired on regular appointment or as specialist in a teaching hospital
      with the ex officio designation. It was thereafter further observed that
D
      the word ‘as’ in the collocation of the words used “at least six years’
      experience as Associate Professor/Assistant Professor/Reader” and of
      the words “at least five years’ experience as Reader/Assistant Professor”
      in the relevant Rules must be interpreted in its ordinary sense as meaning
      teaching experience gained “in the capacity of”.
E           7.6 In the present case, the word ‘as’ and the words ‘experience
      as Company Secretary’ used in the advertisement are very clear and as
      observed hereinabove it means the candidate ought to be appointed and
      worked as such ‘as’ a Company Secretary. Therefore, the aforesaid
      decision shall not be applicable to the facts of the case on hand.
F            8. In view of the above and for the reasons stated above, as
      appellant did not fulfil the eligibility criteria of having five years post
      qualification experience ‘as’ Company Secretary as on 30.11.2013, the
      services of the appellant have rightly been terminated. We are in complete
      agreement with the view taken by the High Court.
G            9. In view of the reasons stated above, the present appeal fails
      and is accordingly dismissed. No costs.


      Divya Pandey                                                  Appeal dismissed.

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