Experience Marks Can't Be Denied To Outsourced Employee Performing Regular Duties Though Not In Sanctioned Post : Supreme Court

The Supreme Court held that experience marks cannot be denied solely because a candidate worked as an outsourced manpower. If the candidate performed duties aligned with the sanctioned post, they are eligible for marks, even if the candidate was not appointed on the sanctioned post, the court said.

“The first respondent, thus, cannot be denied the benefit of mark for experience merely because at the time of appointment as outsourced manpower, she was not appointed on a sanctioned post.”, the Court held.

The bench comprising Justice Dipankar Datta and Justice R. Mahadevan heard the appeal preferred by the Chaudhary Charan Singh Haryana Agricultural University, Hisar (“Appellant”) against the High Court's direction to consider the experience marks of the respondent (appointed on the outsourcing basis) for the appointment to the direct recruitment to various Group-C (non-teaching) posts, as she performed same duties as required for the sanctioned post.

An advertisement for Group-C posts offered 0.5 marks per year of experience in similar or higher posts, capped at 5 marks. Respondent scored 75 marks but fell below the cut-off as her outsourced experience wasn't counted. She challenged this in the High Court, which ruled in her favor, awarding her 0.5 marks and directing her consideration without affecting existing appointees.

The University argued that the Respondent's outsourced work did not qualify as experience on a sanctioned post and that her certificate, issued by Outsourcing Enterprises rather than the University, would be against the selection process. It further asserted that the university's Outsourcing Policy barred it from certifying experience for outsourced employees and that awarding marks for outsourced work goes against the advertisement's criteria.

Per contra, the Respondent contended that her work was equivalent to that performed by regular employees and that the experience criteria did not explicitly mandate work on a sanctioned post. She argued that denying her marks was arbitrary and violated her constitutional rights.

Court's Observation

Dismissing the University's argument, the judgment authored by Datta J. observed that the experience marks gained by the Respondent (as an outsourced employee) while performing duties of regular work would be considered when considering her application for the appointment to the advertised post.

The Court reasoned that since no sanctioned post ever existed when the respondent gave her services as an outsourced employee then she can't be expected to work on the regular/sanctioned post to earn experience marks to qualify for the advertised post.

“The point that would engage our consideration in this case is whether the noun 'post' in the subject advertisement would invariably mean a sanctioned post and whether a candidate would not be eligible for mark for experience if he/she has not worked on a regular/sanctioned post.”, the court framed a questioned to decide upon.

The experience clause in the advertisement reads:

“(d) Experience: One half (= 0.5) mark for each year or part thereof exceeding six months of experience, out of a maximum of 10 years, on the same or a higher post in any Department/Board/ Corporation/Company/Statutory Body/Commission/Authority of Government of Haryana. No marks will be awarded for a period less than six months. (a maximum of 5 marks)”

Looking towards the experience clause in the advertisement, the Court interpreted that the work 'sanctioned' was missing in the clause, and neither the Outsourcing Policy nor the Advertisement defines the word “post” making evident that for an aspirant, to secure mark for experience, he/she must prove with documents that he/she has been employed for performing work of the nature required by the same or a higher post.

“A literal reading of the terms relating to experience confirms that marks could be secured by an aspirant for experience gathered while working in the enumerated departments of the Government of Haryana; however, while referring to 'same or a higher post', the term 'sanctioned' as a prefix is conspicuous by its absence. Additionally, neither the Outsourcing Policy nor the Advertisement defines the word “post”. What follows is that an aspirant, to secure mark for experience, must prove with documents that he/she has been employed for performing work of the nature required by the same or a higher post. Importantly, it has not been shown that either the Recruitment Rules or the Advertisement specifically bar(s) aspirants from securing marks for experience sained from contractual / outsourced employment.”, the court observed.

Also, the Court validated the experience certificate issued by the Outsourcing Enterprises because it was countersigned by the University's, Head of Department.

The Court faulted the recruitment advertisement as it lacked clarity on the meaning of the word 'post'. The Court said that it would occasion a failure of justice to exclude such an individual for no better reason than that he/she did not work on a sanctioned post.

“The true thrust of every selection process ought to be to find out and select suitable candidates, having experience in the related work and fulfilling other criteria, from among eligible candidates and to go ahead with appointing the more meritorious of those found suitable. If indeed an individual without having any security of service performs up to the mark and receives commendation from none other than the Head of the Department, who must have closely watched his/her performance, it would occasion a failure of justice to exclude such individual for no better reason than that he/she did not work on a sanctioned post. If indeed such be the requirement, it had to be made explicitly clear in the Advertisement without any ambiguity so as not to generate false hopes in the minds of individuals aspiring for public employment. Any other view would be against both the principles of equality and nonarbitrariness enshrined in the Constitution as well as principles of natural justice. Tested on the touchstone of Articles 14 and 16, the impugned decision of the University cannot sustain.”, the court observed.

Accordingly, the Court dismissed the appeal.

Appearance:

For Petitioner(s) Mr. Manu Mridul, Adv. Mr. Pratap Singh Rawat, Adv. Mr. Jitin Chaturvedi, AOR

For Respondent(s) Mr. Jayprakash Bansilal Somani, Adv. Mr. Nishant Verma, AOR Mr. Rajnish Kumar, Adv. Mr. Manoj Kumar Chowdhary, Adv. Ms. Shisba Chawla, Adv. Ms. Ekta Verma, Adv.

Case Title: CHAUDHARY CHARAN SINGH HARYANA AGRICULTURAL UNIVERSITY, HISAR & ANR. Vs. MONIKA & ORS.

Citation : 2024 LiveLaw (SC) 934

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