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TMI Blog2019 (2) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... ited 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 May 2003 to June 2004 - Her appointment as Management Trainee cannot be equated and/or considered as appointment ‘as’ a Company Secretary. In the case of Dr. Asim Kumar Bose, [1982 (12) TMI 224 - SUPREME COURT OF INDIA], this Court observed and held that the provisions contained in Rule 8(2A) 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 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. 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 - appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 dismissing the writ petition. The order passed by the Division Bench in 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 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 PSU/Company of repute and functioned as such for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 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 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 advert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary. If the period during 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 Trainee', functioned 'as' a 'Company Secretary. 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 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 that a candidate must have been appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther 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 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". 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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