Experience marks cannot be denied to an outsourced employee performing regular duties though not in sanctioned post: Supreme Court

The Supreme Court held that experience marks cannot be denied merely because a candidate has worked as an outsourced labour. If the candidate has performed duties aligned with the sanctioned post, he is eligible for the marks, even if the candidate has not been appointed to the sanctioned post, the court said.

“The first respondent, therefore, cannot be denied the benefit of experience notice merely because at the time of appointment as outsourced labour, she was not appointed to a sanctioned post.” The court held.

Bank including Justice Dipankar Datta and Justice R. Mahadevan heard the appeal preferred by Chaudhary Charan Singh Haryana Agricultural University, Hisar (“Appellant”) against the direction of the High Court to consider the experience marks of the respondent (appointed on outsource basis) for appointment to direct recruitment to various groups- C Posts (non-professional), as he performed the same duties as for the sanctioned post.

An advertisement for Group C posts offered 0.5 points per year of experience in similar or higher posts, with a limit of 5 points. The respondent scored 75 points but fell short because her outsourced experience was not taken into account. She appealed this to the High Court, which ruled in her favour, awarding her 0.5 points and directing her consideration without prejudice to existing nominees.

The university argued that the respondent’s outsourced work did not qualify as sanctioned post experience and that her certificate, issued by the outsourcing companies rather than the university, would go against the selection process. It also asserted that the university’s Outsourcing Policy prohibits it from certifying experience for outsourced employees and that awarding marks for outsourced work contravenes advertising criteria.

On the contrary, the defendant argued that her work was equivalent to that performed by regular employees and that the experience criteria did not explicitly require work in a sanctioned position. She argued that the denial of her grades was arbitrary and violated her constitutional rights.

Court’s observation

Rejecting the University’s argument, the judgment written by Datta J. observed that the marks of experience acquired by the respondent (as an outsourced employee) while performing her regular duties will be taken into account while considering her application for appointment to the advertised post.

The Court reasoned that since no sanctioned post ever existed when the respondent offered her services as an outsourced employee, she cannot be expected to work in the regular/sanctioned post to earn experience marks to qualify for the post promoted.

“The point which would engage us for 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 experience grade if he had not worked ordinarily. /sanctioned post.”the court framed a questionnaire to decide.

The experience clause in the ad says:

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

Looking at the experience clause in the advertisement, the Court interpreted that the “sanctioned” work was missing from the clause and neither the Outsourcing Policy nor the Advertisement defined the word “post”, making it clear that for an applicant, in order to secure his experience grade, must prove with documents that he was hired to perform work of the nature required by the same position or a higher position.

“A literal reading of the terms relating to experience confirms that the marks could be obtained by an aspirant for the experience gained while working in the enumerated departments of the Government of Haryana; however, while referring to “same or higher post”, the term “sanctioned” as a prefix is ​​conspicuous by its absence. In addition, neither the Outsourcing Policy nor the Advertisement defines the word “post”. It follows that an aspirant, in order to obtain his experience grade, must prove through documents that he was hired to perform work of the nature required by the same position or a higher position. Importantly, it has not been shown that neither the Recruitment Rules nor the Advertisement specifically prohibits the aspirants from obtaining marks for the said experience in contract/outsourced employment..”the court observed.

The Court also validated the experience certificate issued by the Outsourcing Enterprises because it was countersigned by the head of department of the University.

The court criticized the recruitment advertisement as it was not clear about the meaning of the word ‘post’. The Court said that to exclude such an individual would cause a miscarriage of justice for no better reason than that he did not work in a sanctioned post.

“The real purpose of any selection process should be to find and select suitable candidates, having experience in the related activity and meeting other criteria, from among the eligible candidates and to proceed with the appointment of the most deserving of those deemed suitable. If indeed a person with no job security performs up to par and receives praise from none other than the Head of Department, who must have watched his performance carefully, it would cause a miscarriage of justice to exclude this person for no better reason than that he did not work in a sanctioned post. If indeed this is the requirement, it should have been made explicit in the advertisement without any ambiguity so as not to create false hopes in the minds of the public job aspirants. Any other point of view would be against both the principles of equality and non-arbitrariness enshrined in the Constitution, as well as the principles of natural justice. Tested on the touchstone of Articles 14 and 16, the challenged decision of the University cannot be sustained.”, the court observed.

Therefore, the Court dismissed the appeal.

Appearance:

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

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

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

Reference: 2024 LiveLaw (SC) 934

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