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2023 Supreme(Del) 2464
IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Geeta Sharma – Appellant
Versus
Public Enterprises Selection Board & Ors – Respondent
W.P.(C) 15768 of 2022 & C.M. APPL. 49044 of 2022, 18600 of 2023 & W.P.(C) 15784 of 2022 & C.M. APPL. 49156 of 2022, 8491 of 2023
Decided On : 07-08-2023
Mr. Joby P. Varghese and Mr. Upmanyu Sharma, Advocates, for the Petitioner in W.P.(C) 15768 of 2022 & C.M. APPL. 49044 of 2022, 18600 of 2023 & W.P.(C) 15784 of 2022 & C.M. APPL. 49156 of 2022, 8491 of 2023.
Ms. Manisha Agrawal Narain, Central Government Standing Counsel with Mr. Sandeep Singh Somaria and Ms. Rakshita Goyal, Advocates, for the Respondent-1 and 3 in W.P.(C) 15768 of 2022 & C.M. APPL. 49044 of 2022, 18600 of 2023 & W.P.(C) 15784 of 2022 & C.M. APPL. 49156 of 2022, 8491 of 2023.
Mr. Sandeep Sethi, Senior Advocate with Mr. Sanjay Kapur, Mr. Devesh Dubey, Ms. Megha Karnwal and Mr. Surya Prakash, Advocates, for the Respondent-2 and 5 in W.P.(C) 15768 of 2022 & C.M. APPL. 49044 of 2022, 18600 of 2023.
Mr. Ravi Sikri, Senior Advocate with Mr. Amit Meharia, Mr. Abinash Agarwal, Ms. Poonam Shekhawat, Mr. Deepak Yadav, Mr. Abhishek Sandhilya and Ms. Kanak Grover, Advocates, for the Respondent-2 in W.P.(C) 15784/2022 & C.M. APPL. 49156/2022, 8491/2023.
Ms. Meenakshi Midha, Mr. Kapil Midha and Mr. Garv Singh, Advocates, for the Respondent-5 in W.P.(C) 15784/2022 & C.M. APPL. 49156/2022, 8491/2023.
Preference to a Chartered Accountant as a part of the educational qualification cannot be sacrificed or overlooked by inter-se seniority premised on higher pay scale/Board Level position.
Headnote:
JUDGEMENT - [KEYWORD] - [SUBJECT] - [ACT SECTION LIST] - [SUMMARY]
Fact of the Case:
Petitioner, a Director (Finance) at HLL Lifecare Limited, applied for the post of Director (Finance) at Bharat Electronics Limited (BEL) and Telecommunications Consultants (India) Ltd. (TCIL). She was not shortlisted for the interview despite being eligible. She filed writ petitions challenging the shortlisting process and the selection of the recommended candidates. The main contention was that preference should have been given to her higher pay scale and Board Level position, as per the Seniority Guidelines, rather than to candidates with lower pay scales and positions.
Finding of the Court:
The Court held that the preference clause in the Advertisements, giving preference to Chartered Accountants, cannot be overshadowed by factors such as a higher pay scale or Board Level position. The Seniority Guidelines are meant only for fixing inter-se seniority amongst applicants from different CPSEs based on pay scales/Board Level positions, but once the interpolation is complete in the respective categories, shortlisting is done based on mandatory qualifications and experience giving preference to applicants having Chartered Accountancy, wherever applicable. The Court also held that the preference to a Chartered Accountant as a part of the educational qualification can be sacrificed or overlooked by inter-se seniority premised on higher pay scale/Board Level position.
Issues: a) Whether preference can be given to a candidate based on higher pay scales and/or Board Level position for shortlisting the candidates for selection to the post of Director (Finance) in the absence of any such preferential clause in the Advertisements or even in the I.M dated 31.01.2018? b) Can I.M dated 31.01.2018 dealing with interpolation of applicants as per their inter-se seniority premised on pay scales/Board Level positions override an exclusive clause in the Advertisement under the `Qualification', giving preference to Chartered Accountants which finds genesis in Guidelines dated 29.08.2017 and PESB decision dated 19.08.2021 and is tailor made to suit the Job Description of the post in question? c) Does the conjoint reading of the preference clause pertaining to Chartered Accountant and the Seniority Guidelines lead to an interpretation that only when applicants have the same pay scales and/or Board Level positions, it is permissible to give preference to one based on his/her qualification of Chartered Accountancy?
Ratio Decidendi: 1. The preference clause in the Advertisements, giving preference to Chartered Accountants, cannot be overshadowed by factors such as a higher pay scale or Board Level position. 2. The Seniority Guidelines are meant only for fixing inter-se seniority amongst applicants from different CPSEs based on pay scales/Board Level positions, but once the interpolation is complete in the respective categories, shortlisting is done based on mandatory qualifications and experience giving preference to applicants having Chartered Accountancy, wherever applicable. 3. The preference to a Chartered Accountant as a part of the educational qualification can be sacrificed or overlooked by inter-se seniority premised on higher pay scale/Board Level position.
Final Decision: The Court quashed the list of shortlisted candidates and directed PESB to issue a fresh list of candidates for interviews. The Court also directed that the appointment of the selected candidates shall be subject to the outcome of the present petition.
JUDGMENT
Jyoti Singh, J. W.P.(C) 15768/2022 has been filed by the Petitioner praying for setting aside the list of shortlisted candidates and the selection/recommendation list dated 22.07.2022 issued by Respondent No.1/Public Enterprises Selection Board (`PESB') recommending the name of Sh. S. Damodar Bhattad/Respondent No.5 for the post of Director (Finance), Bharat Electronics Limited (`BEL')/Respondent No.2 herein. Writ of mandamus is also sought directing PESB to redraw the list of shortlisted candidates and include the name of the Petitioner for interview for the said post.
2. W.P.(C) 15784/2022 has been filed by the Petitioner seeking quashing of list of shortlisted candidates and the selection list dated 19.09.2022 issued by PESB recommending the name of Sh. Surajit Mandol for the post of Director (Finance), Telecommunications Consultants (India) Ltd. (`TCIL')/Respondent No.2 herein with consequential writ of mandamus to redraw the list of shortlisted candidates including the name of the Petitioner for interview for the said post. Due to similitude of the legal issues, both writ petitions were heard together and are being decided by this common judgment.
W.P.(C) 15768/2022:
3. Relevant facts, shorn of unnecessary details captured in the writ petition are that Petitioner is currently working as Director (Finance) at HLL Lifecare Limited, a Public Sector Undertaking (`PSU'), engaged in business of manufacture and sale of healthcare products and services. Petitioner joined the said post in 2018 after being released from Steel Authority of India Ltd. (`SAIL') as Deputy General Manager w.e.f. 20.08.2018 having worked in SAIL since 03.08.1991. Upon being released from SAIL, Petitioner is on Lien for a period of 5 years in her substantive scale and post in SAIL till attaining the age of superannuation or for the duration of such appointment or for 5 years whichever was earlier, i.e. w.e.f. 21.08.2018 till 20.08.2023.
4. PESB is a Selection Board which follows a procedure for appointment of Board Level appointees in Central Public Sector Enterprises (`CPSE') as prescribed in its Guidelines dated 29.08.2017. The procedure involves advertising the vacancy, finalizing/modifying job description/qualification/experience/age/eligibility conditions. PESB conducts interviews of the applicants who apply and after considering various parameters such as performance in the interview, qualities of managerial capability, leadership, broad vision, experience, service record and inputs provided by those assisting the Board, sends the recommended name to the Ministry for its consideration. The name recommended by PESB is considered by the administrative Ministry after obtaining vigilance clearance and proposal is then submitted for obtaining approval of the Appointments Committee of the Cabinet (`ACC').
5. BEL is a Schedule-A Navratna (Category-1) CPSE under the administrative control of the Department of Defence Production, Ministry of Defence and is primarily a R&D focused organization with R&D facilities in 9 units across India with core competency in areas of Radars and Weapon systems, Sonars, Communications etc.
6. Applications were invited by PESB from eligible candidates for selection to the post of Director (Finance) in BEL, vide Advertisement No.11 of 2022 dated 20.01.2022, pursuant to which Petitioner applied on 24.03.2022. As per the Advertisement, the eligibility criteria with respect to age, employment status, qualification, experience and pay scale was as follows:
"III. ELIGIBILITY
1. AGE: On the date of occurrence of vacancy (DOV)
| Age of superannuation 60 years | |||
| Internal | Others | ||
| Minimum | Maximum | Minimum | Maximum |
| 45 | 2 years residual service as on the date of vacancy w.r.t. the date of superannuation | 45 | 3 years residual service as on the date of vacancy w.r.t. the date of superannuation. |
2. EMPLOYMENT STATUS:
The applicant must, on the date of application, as well as on the date of interview, be employed in a regular capacity - and not i
