Central Administrative Tribunal - Delhi
A. P. Pathak vs Union Of India Through on 16 December, 2009
Central Administrative Tribunal Principal Bench OA No.1999/2009 New Delhi, this the 16th day of December, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Dr. Ramesh Chandra Panda, Member (A) A. P. Pathak S/o Shri B. M. Pathak, R/o DI/203, Satya Marg, Chanakyapuri, New Delhi. 110 002 . Applicant (By Advocate: Shri R. N. Singh) Versus Union of India through: 1. The Ministry of Road Transport and Highways, Through its Secretary, Transport Bhawan, 1, Parliament Street, New Delhi 110 001. 2. National Highways Authority of India Through its Chairman Ministry of Road Transport and Highways, Dwarka, New Delhi 110 075. 3. The Search-cum-Selection Committee, Through its Chairman, Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi 110 001. 4. Shri Brahma Dutt Chairman The Search-cum-Selection Committee and Secretary, Ministry of Road Transport and Highways, Transport Bhawan, 1, Parliament Street, New Delhi 110 001. 5. Shri D. O. Tawade 6. Shri Satish Kumar 7. Shri M. P. Sharma 8. Shri S. S. Nahar 9. Shri Manoj Sharma 10. Shri G. D. Goel 11. Shri Nagendra Kumar Sharma 12. Shri S. S. Singhvi 13. Shri Dev Raj 14. Shri A. K. Mathur 15. Dr. Ram Kumar 16. Shri Jagdish Kumar Pandey 17. Shri Nihar Ranjan Dash 18. Dr. A. K. Malhotra 19. Shri V. K. Sharma 20. Shri G. Suresh 21. Shri S. K. Nirmal 22. Shri R. K. Pandey 23. Shri Om Kumar 24. Shri E. Venkata Reddy . Respondents (Service to respondent No.5 to 24 is to be effected through Respondent No.1) (By Advocate : Shri Jopse Chirmal for official Respondents. Shri Rajeev Manglik for Respondent -13, 14 & 23. Shri Praveen Kumar Pandey for Sh. R. Santhan Krishnan for Respondent -24). : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri A. P. Pathak, the Applicant in this OA, belongs to 1984 batch of Central Engineering Service (CES) Cadre of the Ministry of Road Transport and Highways (MoRTH). An advertisement was issued (Annexure-A1) by the Respondent-2 inviting applications for various categories of posts including the posts of Chief General Manager (CGM) in the National Highways Authority of India (NHAI). The CGM (Technical) is one of such posts, vacancy indicated therein being 10. The Applications were to reach the Deputy General Manager (Admn.)-I on or before 30.9.2008 through proper channel. The Applicant, who was on Central deputation applied on 2.9.2008 for the post of CGM (Technical) to the Respondent-2 directly and original copy having been sent through Respondent-1. NHAI received 69 applications within the prescribed date, out of which 15 applications were found to be in order. The MoRTH and NHAI found that though the Applicant applied directly, his application was not through proper channel and documents/records which were necessary for processing, were not enclosed / furnished. The Search and Selection Committee met on 18.06.2009 under the Chairmanship of Respondent-1 where the Applicants candidature was not considered but 10 candidates selected were appointed. The said Committee met for the 2nd time on 21.7.2009 which did not consider him, but 5 selected candidates were appointed. Further 3 more candidates who were already working in the NHAI on mandatory deputation were recommended by MoRTH and appointed to the post of CGM(Technical) and ultimately 18 persons were appointed as CGM(Technical). The application of the Applicant was not forwarded by MoRTH and as such his candidature was not considered by the NHAI and the Search and Selection Committee. Being aggrieved by the action of the official Respondents, the Applicant has moved this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers :-
(i) Quash and set aside the selections made for the posts of CGM vide letter dated 30.6.2009 issued by the Respondent No.2 at Annexure A-6;
(ii) Quash the proceedings and recommendations of Respondent No.2, 3 & 4, which has met twice on 18.6.2009 & 21.07.2009;
(iii) Direct the Respondents to consider the candidature of the Applicant for the advertised posts of CGM (Tech);
(iv) Stay all selections and/or appointments made against the said advertisement by this selection committee, future or past, for the said advertised post of CGM in the NHAI till the final disposal of this case;
(v) Replace the Chairman of the Search-cum-selection Committee i.e. Respondent No.4 for an unbiased, transparent and fair selection process;
(vi) Direct the respondents to pay the cost of litigation and unwarranted mental agony they subjected on the applicant;
(vii) Pass any other order(s) or direction (s) which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
2. Through amendment of the parties, the Applicant impleaded 20 Private Respondents and notice was issued to the Official Respondents on 31.7.2009 and to others on 6.8.2009. In respect of the interim relief prayed for, after hearing the parties on 15.9.2009, it was made clear that any promotion made for the post of CGM (Technical) would be subject to the final outcome of this OA and the said direction has been continuing to till date.
3. The Counsel representing Applicant, Shri R. N. Singh narrated the background of the case and submitted that when the Applicant was working as OSD to Minister of State in the Ministry of Home Affairs during his compulsory wait period, he applied to the post of CGM (Technical) but was not considered by the Selection Committee on 18.6.2009 and again on 21.7.2009. It is alleged that the selection made by the Search cum Selection Committee headed by the Respondent No.4 was totally in violation of set Rules, Norms and directions of Govt. of India and therefore, he terms the same as recruitment scam. He also contended that the Respondents submitted false facts in their affidavits in support of which Shri Singh highlighted that the selection made by the Search-cum-Selection Committee on 18.6.2009 included the applications from 3 candidates after the last date of submission of application which is totally illegal, arbitrary, bad in law and clear violation of the settled law as pronounced by Honble Supreme Court in the case of Rekha Chaturvedi Versus University of Rajasthan & Ors. Those 3 candidates were named to be Shri M. P. Sharma, Shri S. S. Nahar and Shri Satish Kumar and their selection was driven by vested interest consideration. Shri R N Singh also cited the case of Shri R. P. Khandelwal who was selected for about 40 days on 21.7.2009 and has been repatriated to his parent cadre of Rajasthan PWD on 31.08.2009. In case of Shri S. K. Nirmal selected by the search-cum-selection committee on 21.07.2009 Shri Singh submitted that he had already completed 5 years and 8 months of mandatory deputation as GM in NHAI on 30.11.2008 and his stay in NHAI after 5 years without specific approval of DOPT is illegal. He submitted that the applications were illegally obtained from their 3 favoured candidates after the last date of submission on 11.06.2009 and selected all of them during its meeting held on 18.06.2009. Shri Singh highlighted that Shri Satish Kumar had been repatriated on 31.08.2009; therefore, his selection by the Selection Committee for a period of 2 months raises doubt about the intention & wisdom of the committee. As regard to other two candidates (Shri M. P. Sharma and Shri S. S. Nahar) he drew our attention to the observations made by this Tribunal in OA No.63/2009. In brief his contentions are that (i) the Applicant has applied through proper channel i.e. his parent Department for forwarding his application to NHAI; (ii) he is eligible in all other respects to be considered for the post of CGM (Technical); (iii) appointment of some of the Private Respondents has been done by calling for their application even after the last date was over; (iv) many of the applications considered by the NHAI, specifically by Respondent-1 as the Chairman of the Committee reveals malafide intentions and were also not through proper channel; (v) some of the cases cited revealed non-application of mind by Respondent-1; (vi) as against 10 vacant posts of CGM (Technical) the Committee recommended 15 in 2 sittings and ultimately 18 candidates were appointed which Shri Singh termed as violation of the Rules.
4. On contra, Shri Jopse Chirmal, learned Counsel for the Official Respondents very vehemently opposed the contentions raised by the Counsel for the Applicant. He contended that after joining on 22.10.1984 in the Ministry of Road Transport & Highways as Assistant Executive Engineer in the CES, the Applicant was promoted to the post of Executive Engineer on 22.05.1990 and later on as Superintending Engineer on 09.07.1998, but the Applicant has been on deputation in 5 different spells last being from 27.09.2006 to 26.09.2011 under Central Staffing Scheme for posting in Central Deputation posts for 5 years. He was OSD to Minister of State for Home Affairs (03.05.2007 to 16.07.2008); under compulsory wait in the Ministry of Home Affairs for next posting (17.07.2008 16.02.2009) and from 17.02.2009 to till date with Department of Revenue, Ministry of Finance. He alleged that the Applicant applied for the post of CGM (Technical) directly to NHAI and used the letter head as OSD to Minister of State, Ministry of Home Affairs whereas he was on compulsory wait when he applied. Though the advertisement required the applications to be routed through proper channel, the Applicant did not do so. Even his direct application was not accompanied by the documents like (1) ACRs for last 8 years, (2) Discipline/Vigilance clearance that no penalty was imposed for last 8 years, and (3) Certificate from the concerned Department that the particulars given by the Applicant in the application, specially column 11(f) with regard to experience were true as per service records. The Applicant was well aware of the connotation of Proper Channel since he applied earlier through proper channel for the post of CMD, Rural Electrification Corporation and now he has applied through proper channel for the post of CGM (Technical) in NHAI in response to the recent advertisement. Shri Chirmal drew our attention to certain entries in the Applicants application which prima facie were not correct. The said false statement contained in the application rendered his application liable to be rejected. He also submitted that as per clause 2 of Other Conditions in the advertisement the applications not submitted in the prescribed format or incomplete in any respect shall be liable for summary rejection and the application submitted by the Applicant directly to NHAI was not valid or proper as that was not through proper channel and hence was liable for rejection. Moreover, the Counsel for Official Respondents informed that though the Applicant forwarded a copy of his application vide another letter dated 02.09.2008 through the Ministry of Road Transport & Highways, the same was not in order, inasmuch as that was not through proper channel viz. DOPT and Ministry of Road Transport, therefore, vide Note dated 06.11.2008 decided not to forward the Application to NHAI. He also informed us that the Respondent Ministry vide its letter dated 20.5.2009 requested NHAI to consider 3 candidates for the post of CGM (Technical) who were already on mandatory deputation to the same post with NHAI from the Ministry: they are (i) Shri M. P. Sharma, (ii) Shri Satish Kumar, and (iii) Shri S. S. Nahar. The Counsel for the Official Respondents refuted the irregularities highlighted by Shri Singh against the Private Respondents selected for the post of CGM (Technical). He also submitted that no malafide could be proved by the Applicant against the Respondent-4.
5. Shri Rajiv Manglik, the Learned Counsel of the Respondents 13, 14 and 23 drew our attention to the letter of the Applicant dated 2.09.2008 appended to the OA as Annexure A-2 (colly) (i) and submitted that the Application to the NHAI being an advance copy only, the NHAI did not act on the same. He also informed that the Respondents from Military Engineering Service and Railway Services selected for the post of CGM(Technical) had special experience in Railway Over Bridges and had many years of experience in the sector of roads and bridges and were fully qualified for the post of CGM (Technical). Shr Praveen Kumar Pandey, the learned Counsel for the Respondent-24 supported the contentions and arguments placed by the both the Counsels for the Respondents.
6. Having gone through the rival contentions, we note the following undisputed facts for proper appreciation of the issues involved in this OA. (i) It is stipulated in the advertisement that the applications must be routed through proper channel. (ii) The advertisement has provided and empowered the competent authority to increase/ decrease the number of posts as per requirements. (iii) The selection process was to be through Search and Selection Committee. (iv) The said Committee met twice and recommended candidates. (v) The application of the Applicant was sent to MoRTH with advance copy to NHAI. (vi) Altogether 18 candidates were appointed by NHAI in the posts of CGM (Technical).
7. The main ground for not forwarding the Applicants application to NHAI by the MoRTH, as indicated by the counsel for the official Respondent, is that he did not route his application through proper channel. Counsel for the Applicant drew our attention to the copy of the notes of MoRTH to state that Applicant was short listed for transmission to the NHAI. The final decision of the MoRTH is rather relevant than the views and noting for arriving at the decision. It is argued that the application was sent directly by him and not through proper channel as per mandatory requirement specified in the advertisement. As per well acknowledged procedure, through proper channel for the Applicant should be Ministry of Home Affairs (where he was on compulsory wait) > Department of Personnel and Training (the Department controlling all Central deputations), > to Ministry of Road Transport & Highways (the Cadre Controlling Ministry for CES) and ultimately to> NHAI. We find from the pleadings that the Applicant did not route through the proper channel as indicated above.
8. We consider the next issue. The application submitted by him did not have relevant documents as required for the consideration of the Committee. Though the Counsel for the Official Respondents submitted that his relevant ACRs would have been available only with DOPT, it is to be noted that the Cadre Controlling Authority namely the Ministry of Road Transport and Highways in case of the Applicant herein, would have all ACRs only ACRs of the central deputation period would be available with DOPT. However, the Respondent 1 could not have given the ACRs for last 8 years as required. Further, it is stated by the Counsel for the Respondents that only DOPT could have certified the correctness of his experience as disclosed in the application, based on his service records, which were with DOPT only, but by routing through DOPT to MoRTH, all verifications would have been possible. It was only DOPT, his immediate employer under whom he was on deputation under Central Staffing Scheme for 5 years, who could have given NOC for applying for the post, and for making him available to serve NHAI on deputation, if selected for the post. By not routing through proper channel, the Applicant caused hurdles for himself in so far as the documents and certificates required for his consideration by the Committee. To clear such hurdles it would have taken considerable time for both MoRTH and NHAI and more so it was the responsibility of the Applicant to route through proper channel. As the MoRTH did not recommend the application, the question of consideration by the NHAI would not arise. Thus, we are of the considered opinion that his right to be considered did not arise and the NHAI action in not considering his advance copy was legally proper.
9. Another issue raised by the counsel for the Applicant relates to the fact that 18 candidates were appointed to the post of CGM (Technical) whereas advertisement specified only 10. His argument is that there should have been fresh advertisement for the additional posts. It is admitted fact that 18 posts of CGM (Technical) were filled up against 10 posts advertised. The NHAI vide its advertisement appended as Annexure A-1, invited applications for 10 types of posts of which CGM (Technical) was at Sl. No.1. Advertisement provided to increase / decrease the number of posts. The number of posts was notified as 10, but the introductory para of the said advertisement stipulates that The number of vacancies may increase or decrease as per requirement of the Authority. Thus, appointment of 18 CGM (Technical) against the notified vacancies of 10 gets covered in the clause already provided in the advertisement which in our considered view, is well within the powers of the NHAI. No illegality has been committed by increasing the number of posts from 10 to 18.
10. Next issue is whether the Applicants application sent to NHAI/MoRTH could have been considered by the Committee for the post of CGM (Technical). As per the settled legal position, right to be considered is a fundamental right but to be considered there are criteria. The eligibility of the Applicant and submission of the application to the competent authority through the proper channel as per the advertisement are essential pre conditions for consideration. It is noted that the application sent by the Applicant though was within the prescribed period, but was indicated to be advance copy. Hence that application is to remain pending with NHAI till the main application is to be received through proper channel. As indicated within, the proper channel for the Applicant is to move his application from Ministry of Home Affairs (MHA) > Department of Personnel and Training (DOPT), > Ministry of Road Transport and Highways (MORTH) > finally to reach NHAI. The Applicant sent the advance copy of the application to NHAI and the original Application to Ministry of Road Transport and Highways, without routing through DOPT and MHA. The channel jumping done by the Applicant by no fits of imagination, is admissible in the administrative process and as such we come to the considered conclusion that the Applicant did not route his application dated 2.9.2008 through proper channel. In the result, the decision of the Respondent-1 not to forward his application to NHAI is legally and procedurally valid and sustainable.
11. On the count that Respondent-1 did not forward his application to NHAI, the Applicant has impleaded Respondent-4 in personal capacity. The onus proving the malafide is on the Applicant. The grounds taken by him do not convince us about the malafide allegation leveled against Respondent-4.
12. We have dealt the core issues in this OA and do not intend to go into trivial issues raised by both parties to a large extent alleging one against the other.
13. At the Bar, the learned Counsel for the Official Respondents informed that the fresh application submitted by the Applicant in response to a fresh advertisement calling for applications to fill up CGM (Technical) posts, had been received by NHAI through proper channel and the NHAI would consider his candidature for the said post through the Search cum Selection Committee. Though this is not the issue before us in this OA, we direct the Official Respondents to consider his application very dispassionately with no bias / prejudice against him due to this OA filed by the Applicant.
14 Taking into account the above facts and circumstances of the case and our analysis and discussions within, we come to the considered conclusion that the Applicant has not made out a case. In the result, Original Application bereft of merits is dismissed and the interim direction earlier granted is vacated. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (M. Ramachandran)
Member (A) Vice Chairman (J)
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