Summary
A candidate for a Clerk post who had worked over six months as a clerk-cum-typist in the University through an outsourcing agency was entitled to the half mark for experience "on the same or a higher post". The advertisement did not require the post to be a sanctioned one, and what matters is the nature of the work, not the mode of engagement. The University's appeal was dismissed.
Issues
- Whether "post" in the advertisement's experience criterion means only a sanctioned post, so that experience gained as outsourced manpower under Part I of the Outsourcing Policy earns no marks.
- Whether the experience certificate, issued by the service provider and countersigned by the University's Head of Department, could be rejected because the University did not issue it.
- Whether the denial of the experience mark to the first respondent was consistent with Articles 14 and 16 of the Constitution.
Provisions considered
- Articles 14 and 16, Constitution of IndiaExcluding a candidate who performed the same work satisfactorily, merely because she was not on a sanctioned post, when the advertisement did not clearly require one, was held to offend equality and non-arbitrariness in public employment. (¶¶ 26, 29)
- Preamble and Article 38, Constitution of IndiaThe constitutional theme of social justice, which asks courts to lean towards the weaker side when the scales are evenly balanced, was relied on to support awarding the experience mark. (¶¶ 27, 28, 29)
Held
- A judgment may be brief, but a cryptic judgment reaching conclusions without proper analysis of the facts and material can justifiably be challenged; focused consideration and clear reasoning are essential to a proper judicial decision. (¶ 5)
- Sachivalaya Dainik Vetan Bhogi Karamchari Union v. State of Rajasthan does not lay down a general rule on experience marks for contractual or non-regular service; it turned on enforcing an existing settlement and was distinguished. (¶ 17)
- No one gains experience without actually working. Although engagement on a sanctioned post brings security of service, a person doing clerical work without a right to the post gains broadly similar experience, subject to the job requirements and to any specific condition in the advertisement, such as prior service on a sanctioned post. (¶¶ 18, 20)
- Read literally, the advertisement's criterion of experience "on the same or a higher post" in a Haryana Government department or statutory body did not qualify "post" with "sanctioned", and neither the policy nor the advertisement defined the term or barred contractual or outsourced experience. The primary concern is the nature of the work and its link with the advertised post, not the mode of employment, so the first respondent's service of over six months earned 0.5 mark. (¶¶ 21, 22, 25)
- The University could not deny the mark on the technical ground that the experience certificate came from the service provider; its countersignature by the Head of Department validated the experience. The certificate and the Head of Department's memo showed that she worked as a Clerk-cum-Typist, not merely on general office work. (¶¶ 23, 24)
- A selection process should identify suitable, experienced and meritorious candidates. If service on a sanctioned post was intended to be required, the advertisement had to say so unambiguously; refusing the mark in these circumstances violated Articles 14 and 16 and the constitutional commitment to social justice. (¶¶ 26, 27, 28, 29)
Result
Appeal dismissed without costs; for somewhat different reasons, the Court affirmed the High Court's decision directing that the first respondent be awarded the experience mark and considered for appointment as Clerk.