Central Administrative Tribunal - Delhi
Sh. Sanjeev Kumar Sharma vs Union Of India Through on 11 November, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3696/2014
MA-3179/2014
MA-3214/2014
With
OA-3762/2014
MA-3229/2014
MA-3230/2014
Reserved on : 28.10.2014.
Pronounced on : 11.11.2014
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
OA-3696/2014
1. Sh. Sanjeev Kumar Sharma,
Aged 47 years,
S/o Sh. Hari Dutt Sharma,
R/o 173A, Shree Vihar,
JLN Marg,
Jaipur, Rajasthan
(Working as Manager (Tech) at PIU,
Dausa, Jaipur).
2. Sh. Pradeep Mudgal,
Aged about 51 years,
S/o late Gopal Ram Sharma,
R/o 21/243, Kaveri Path,
Mansarovar, Jaipur
(Working as Manager (Tech) at RO, Jaipur).
3. Sh. Purshottam Lal,
Aged 45 years,
S/o Sh. Ram Das Chaudhary,
R/o D-103, Plot No. 26,
Sector-6, Dwarka, New Delhi
(Working as Manager (Tech), NHAI,
HQ, New Delhi).
4. Sh. Pradeep Singh Gusain,
Aged about 37 years,
S/o Sh. Surender Singh,
R/o G-24/3, Nehru Colony,
Dehradu
(Working as Manager(T) at PIU, Delhi). .. Applicants
(through Sh. S.K. Gupta, Advocate)
Versus
Union of India through
1. Union of India through
Secretary,
Ministry of Road, Transport and
Highways, 1, Parliament Street,
Transport Bhawan,
New Delhi.
2. National Highways Authority of India
Through its Chairman,
G-5 & 6, Sector 10, Dwarka,
New Delhi-75.
3. Sh. T.V. Sivaji,
Working as Manager (T),
PIU-Salem.
4. Sh. Asheesh Kr. Jain,
Working as Manager (T),
HQ (Expressway).
5. Sh. K. Srinivasulu,
Working as Manager (T),
RO, Hyderabad.
6. Sh. P.K. Jain,
Working as Manager (T),
NHAI, Head Quarter,
New Delhi.
7. Sh. D.C. Sriniwasulu Naidu,
Working as Manager (T),
PIU, Chennai.
8. Sh. S.P. Somasekhar,
Working as Manager (T),
PIU, Chitradurga.
9. Sh. Virender Sambyal,
Working as Manager (T),
NHAI HQ (Vig. Division).
10. Sh. A. Srinivasa Rao,
Working as Manager (T),
PIU, Vishakhapattnam.
11. Sh. K.N. Ajay Mani Kumar,
Working as Manager (T),
PIU, Gulbarga.
12. Sh. S. Ravi Naik,
Working as Manager (T),
HQ (Legal & Arbitration).
13. Sh. P. Siva Sankar,
Working as Manager (T),
PIU, Lucknow.
14. Sh. Rakesh Kumar Shrivastva,
Working as Manager (T),
RO, Patna.
15. Sh. Subrata Nag,
Working as Manager (T),
RO, Kolkata.
16. Sh. J. Balachander,
Working as Manager (T),
PIU, Guna.
17. Mohd. Safi,
Working as Manager (T),
PIU, Moradabad.
18. Sh. Manoj Kr. Pandey,
Working as Manager (T),
PIU, Ranchi.
19. Sh. Ram Prit Paswan,
Working as Manager (T),
HQ (MP Divn.).
20. Sh. Sanjeev Kumar Sharma,
Working as Manager (T),
PIU, Malda.
21. Sh. D.V. Narayana,
Working as Manager 9T),
PIU, Nandyal.
22. Sh. Alok Kumar,
Working as Manager 9T),
PIU, Lumding.
23. Sh. P. Nageswara Rao,
Working as Manager (T),
PIU, Berhampur.
24. Sh. C.M. Dwivedi,
Working as Manager (T),
PIU, Raebareilly.
25. Sh. N. Rajasekhar,
Working as Manager (T),
PIU, Dharwad. . Respondents
(The respondent no. 3 to 25 are working under respondent no.2 and the service will be effected through respondent no.2)
(through Sh. Jos Chairamel with Ms. Himani Bhatnagar,Advocate)
OA-3762/2014
1. Sh. B.S. Salunke,
Aged about 46 years,
S/o late Shankar A. Salunke,
R/o 204, Gruhalaxmi Height,
Pathardi Rioad,
Mashik-422009.
(Working as Manager (T)
2. Sh. S.D. Chitnis,
Aged about 47 years,
S/o Sh. Devidasrao H. Chitnis,
R/o Flat No.C-2, Pushyadant Apartments,
CHS, Sector-21, Kharghar,
Navi Mumbai-410210
(Working as Manager(T).
3. Sh. Arvind R. Kale,
Aged about 46 years,
S/o Sh. Rambhaji Kale,
R/o AF-3, Pranav Apartment,
Vyankatesh Nagar, Khamla Road,
Nagpur-25.
(Working as Manager (T)
4. Sh. Yeshwant N. Ghotkar,
Aged about 47 years,
S/o Sh. Nanarao A. Ghotkar,
R/o N-4, E-80, CIDCO,
Aurangabad.
(Working as Manager (T).
5. Sh. A.K. Khandelwal,
Aged about 49 years,
S/o Sh. B.L. Khandelwal,
R/o 28, Marudhar Nagar,
DCM, Ajmer Road, Jaipur(Raj)
(Working as Manager (T)
6. Sh. Sunil Yadav,
Aged about 48 years,
S/o Sh. O.P. Yadav,
R/o E-1, Shastri Nagar,
Ajmer (Raj)
(Working as Manager (T)
7. Sh. Vilas P. Brahmankar,
Aged about 46 years,
S/o Sh. Punjabrao M. Brahmankar,
R/o Plot No.38, Jai Durga,
Layout No.4, Manish Nagar,
Nagpur.
(Working as Manager (T).
8. Sh. Satish J. Janwe,
Aged about 52 years,
S/o Sh. Jagannath V. Janwe,
R/o G-95, Welcome Home Apartment,
Gurupeth, Nagpur-440010.
(Working as Manager 9T)
9. Sh. Sunil V. Patil,
Aged about 47 years,
S/o Sh. Vasant W. Patil,
R/o N-4, B-31, Cidco
(Working as Manager (T).
10. Sh. Manoj Kumar Bansal,
Aged about 45 years,
S/o Sh. Chhitariya Lal Bansal,
R/o 1123, Barkat Nagar,
Jaipur (Raj)
(Working as Manager (T).
11. Sh. Mohan Lal Purbia,
Aged about 44 years,
S/o Sh. S.L. Purbia,
R/o C-184, Ambamata Scheme,
(Working as Manager (T).
12. Sh. Pratima Gupta,
Aged about 46 years,
W/o Sh. Girdhari Lal Garg,
R/o 663-B, Chawtal Garden Road,
Kota
(Working as Manager (T).
13. Sh. Niwrutti L. Yeotkar,
Aged about 46 years,
S/o Sh. Laxman G. Yeotkar,
R/o H.No. 84, Behind Polythene Factory,
Swarna Jayanti Nagar,
Friends Colony,
Chhindntara (MP)
(Working as Manager (T).
14. Sh. Abhijit P. Jichkar,
Aged about 45 years,
S/o Sh. Prahladrao J. Jichkar,
R/o Nandanwan Layout, Nagpur
(Working as Manager 9T).
15. Sh. Mukuna T. Attarde,
Aged about 48 years,
S/o Sh. Tikaram A. Attarde,
R/o Income Tax Colony,
CBD Belapur,
Navi Mumbai
(Working as Manager 9T).
16. Sh. Sanjay Verma,
Aged about 45 years,
S/o late S.S. Verma,
R/o A-8/301, Aakriti Eco City,
Bhopal.
(Working as Manager (T).
17. Sh. Pankaj Mishra,
Aged about 44 years,
S/o Sh. G.S. Mishra,
R/o 1G/2, Rajroopppur,
Allahabad
(Working as Manager (T).
18. Sh. D.K. Chaturvedi,
Aged about 48 years,
S/o Sh. B.P. Chaturvedi,
R/o 98-C/Pkt F, G.T.B. Enclave,
Delhi-93
(Working as Manager (T).
19. Sh. Amarendra Narayan Singh,
Aged about 51 years,
S/o late Dr. Birendra Narayana Singh,
R/o Alalpatti VIP Road,
Darbhanga
(Working as Manager (T).
20. Sh. Dinesh Kumar Hansaria,
Aged about 50 years,
S/o Sh. Brijlal Hansaria,
R/o Pathashala, Barpeta, Assam
(Working as Manager (T).
21. Sh. Prabhat Kumar Singh,
Aged about 50 years,
S/o late Balbir Singh,
R/o A-302, Aditya Heights,
Sadhu Vasvani Road,
Rajkot, Gujrat-360007. .. Applicants
(through Sh. S.K. Gupta, Advocate)
Versus
Union of India through
1. Union of India through
Secretary,
Ministry of Road, Transport and
Highways, 1, Parliament Street,
Transport Bhawan,
New Delhi.
2. National Highways Authority of India
Through its Chairman,
G-5 & 6, Sector 10, Dwarka,
New Delhi-75.
3. Sh. T.V. Sivaji,
Working as Manager (T),
PIU-Salem.
4. Sh. Asheesh Kr. Jain,
Working as Manager (T),
HQ (Expressway).
5. Sh. K. Srinivasulu,
Working as Manager (T),
RO, Hyderabad.
6. Sh. P.K. Jain,
Working as Manager (T),
NHAI, Head Quarter,
New Delhi.
7. Sh. D.C. Sriniwasulu Naidu,
Working as Manager (T),
PIU, Chennai.
8. Sh. S.P. Somasekhar,
Working as Manager (T),
PIU, Chitradurga.
9. Sh. Virender Sambyal,
Working as Manager (T),
NHAI HQ (Vig. Division).
10. Sh. A. Srinivasa Rao,
Working as Manager (T),
PIU, Vishakhapattnam.
11. Sh. K.N. Ajay Mani Kumar,
Working as Manager (T),
PIU, Gulbarga.
12. Sh. S. Ravi Naik,
Working as Manager (T),
HQ (Legal & Arbitration).
13. Sh. P. Siva Sankar,
Working as Manager (T),
PIU, Lucknow.
14. Sh. Rakesh Kumar Shrivastva,
Working as Manager (T),
RO, Patna.
15. Sh. Subrata Nag,
Working as Manager (T),
RO, Kolkata.
16. Sh. J. Balachander,
Working as Manager (T),
PIU, Guna.
17. Mohd. Safi,
Working as Manager (T),
PIU, Moradabad.
18. Sh. Manoj Kr. Pandey,
Working as Manager (T),
PIU, Ranchi.
19. Sh. Ram Prit Paswan,
Working as Manager (T),
HQ (MP Divn.).
20. Sh. Sanjeev Kumar Sharma,
Working as Manager (T),
PIU, Malda.
21. Sh. D.V. Narayana,
Working as Manager (T),
PIU, Nandyal.
22. Sh. Alok Kumar,
Working as Manager 9T),
PIU, Lumding.
23. Sh. P. Nageswara Rao,
Working as Manager (T),
PIU, Berhampur.
24. Sh. C.M. Dwivedi,
Working as Manager (T),
PIU, Raebareilly.
25. Sh. N. Rajasekhar,
Working as Manager (T),
PIU, Dharwad. . Respondents
(The respondent no. 3 to 25 are working under respondent no.2 and the service will be effected through respondent no.2)
(through Sh. Jos Chairamel with Ms. Himani Bhatnagar,Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) MA-3179/2014 in OA-3696/2014 for joining together in one application is allowed. MA-3214/2014 has also been filed by the respondents for vacation/modification of interim order passed on 15.10.2014. Since the pleadings in this case are complete, we have heard the final arguments of the rival parties and have decided to dispose of this case finally. This M.A. has, therefore, become infructuous and is disposed of as such.
2. MA-3229/2014 in OA-3762/2014 for joining together in one application is allowed. MA-3230/2014 has also been filed for exemption from filing typed/certified copy of annexures. Since this case is identical to OA-3696/2014 and is being disposed of by this common order, MA-3230/2014 has become infructuous and is disposed of as such.
3. The applicants herein are working as Manager (T) in the National Highways Authority of India (NHAI). They joined NHAI on deputation basis on different dates between 2004 and 2008. Subsequently, they were absorbed in NHAI. On 13.10.2014, the respondents issued a circular inviting the private respondents for interview for the post of DGM(T) on promotion basis. The applicants were not so invited. According to them, the respondents have invited the private respondents for interview without drawing a seniority list even though the appointments to the post of DGM(T) are to be made on promotion basis based on the seniority of the candidates. Further, they have stated that their seniority should be counted from the date on which they came to NHAI on deputation basis. They have also alleged that if their service from the date of deputation is taken into account they fulfill the criteria of 04 years regular service as Manager (T) and are, therefore, eligible to be considered for promotion. They have, therefore, filed this O.A. seeking the following relief:-
(i) quash and set aside the circular dated 13.10.2014 (Annexure-A-1);
(ii) direct the respondents to draw the seniority list as per Regulation 15(3) of Regulation, 1996 and also as per the judgment dated 28.04.2014 in OA No. 901/2013 and connected cases and thereupon, after determining the zone of consideration based upon the number of vacancies, the respondents be directed to consider the case of the applicants and other for promotion to the post of Dy. General Manager (Tech) and if the applicants are found fit, the applicants be awarded all consequential benefits;
(iii) till the aforesaid prayer (ii) is considered and granted, the respondents be directed not to declare the result of the selection as conducted on 23.08.2014 as ruled by this Honble Tribunal in judgmentdated 22.08.2014 in OA no. 2795/2014;
(iv) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice. 3.1 This case was taken up for admission on 15.10.2014 by us. As an interim measure on that date, we had directed the respondents to provisionally interview the applicants herein also within three days time. We had further directed the respondents that 23 Managers being interviewed shall also not be promoted till the next date of hearing. The respondents have thereafter made appearance in the case and have filed their reply. The official respondents were represented by learned counsel Sh. Jos Chiramel, who has also filed Vakalatnama for the private respondents.
4. The contention of the respondents is that the seniority of the applicants after their absorption in NHAI is to be determined as per the DoP&T Circular dated 27.03.2001 according to which the seniority is to be determined on the basis of the date of absorption. However, if a person was holding analogous post in his parent department before absorption in NHAI then the seniority has to be determined from the date he has been holding the post on deputation or the date from which he has been appointed on regular basis to the analogous post in his parent department, whichever is earlier. The respondents have further stated that the applicants have not been working on analogous post in their parent department, hence their seniority has to be determined on the basis of their date of absorption. Further, they have stated that NHAI Regulations provide that 04 years regular service in the grade of Manager (T) was essential for promotion to the post of Deputy General Manager (DGM). The applicants do not fulfill this criteria and have therefore not been called for interview. As regards holding interviews for promotion without preparation of a seniority list, the respondents have stated that there were 99 vacant posts of DGM and only 56 Managers (T) working on absorption are available. Therefore, they are in a position to consider all eligible Managers (T) irrespective of their position in the seniority list. The applicants have, however, not been called for interview because they have been found to be ineligible for such consideration as they have not put in 04 years of regular service as Manager (T).
5. The applicants on their part have relied on the judgment of Honble Supreme Court in the case of K. Madhavan and Anr. Vs. UOI & Ors., (1988) 2 SCR 421 wherein it was held that In our view, therefore, the expression on a regular basis would mean the appointment to the post on regular basis in contra distinction to appointment on ad hoc or stop gap or purely temporary basis. They stated that they joined NHAI between 2004 and 2008 and have been working on deputation till their absorption in NHAI. This entire service including deputation period in NHAI should be reckoned as regular service in terms of the above case. They have also relied on the judgment of this Tribunal in OA-3718/2010 (O.P. Gaba Vs. UOI & Ors.) dated 03.03.2011 wherein it has been held as follows:-
5. There is no force in the arguments of the Respondents. The issue regarding the counting of service during deputation as regular service has been decided by the Honourable Supreme Court in K Madhavan (supra) and subsequently followed by this Tribunal. The argument that the Applicant's scale of pay in the parent Department would be considered, while considering his eligibility for promotion and not the actual scale of pay, which he was drawing while on deputation is absolutely specious and does not have the sanction of the rules or guidelines. Admittedly, the Applicant was in the scale of Rs.10,000-15,200, the scale of Scientist 'C', while on deputation. He was working as Scientist 'C', while on deputation. It would be anomalous in the extreme that while counting his service on deputation as Scientist 'C' as regular service, his scale of pay should be considered to be Rs.8000-13,500, which was his scale in the parent Department in the post of Assistant Director. This argument is rejected as untenable.
6. In view of the above discussion, we are of the considered opinion that the impugned order dated 08.06.2010 is illegal. The impugned order is accordingly quashed and set aside. The Respondents are directed to consider the Applicant for in situ promotion under FCS and promote him, if found fit, from the date he completed four years of residency after coming on deputation in the year 2004. Since the Applicant has not been promoted because of the fault of the Respondents, he would be eligible for all consequential benefits including arrears of pay from the date of his promotion and also count his eligibility for promotion to the grade of Scientist 'E' from that date in the year 2008. These directions would be complied with within four months of receipt of a certified copy of this order. No costs. This was subsequently upheld by Honble High Court of Delhi in Writ Petition (Civil) No. 4751/2011 decided on 11.07.2011. The applicants have also relied on the judgment of Honble High Court of Delhi in the case of Dr. Rajendra Kumar and Ors. Vs. The Govt. of National Capital Territory of Delhi (WPs(C) 14097-100/2005) dated 11.10.2006 in which the following directions were given:-
A writ shall issue to the respondent to consider the case for promotion of the petitioners as Assistant Directors in their respective disciplines, duly taking into account the service rendered by them as Senior Scientific Officers with the respondent from the dates of their respective appointment on deputation for the purpose of fulfilling the condition of 5 years service as Senior Scientific Officers for the post of Assistant Director. Petitioners be considered for notional promotion from the date the post of Assistant Directors in their respective discipline fell vacant with consequential benefits from the date petitioners have been discharging the functions of Assistant Directors. 5.1 The respondents have, however, disputed that these judgments could be of any help to the applicants. According to them in the case of K. Madhavan (supra) the Honble Supreme Court was not concerned with DoP&T guidelines nor did it deal with inter-se seniority of deputationist on absorption much less experience prior to the date of absorption. Further, the contention of the applicants that they were entitled for seniority from the date of absorption was contrary to the judgment of Honble Supreme Court in the case of S.I. Rooplal and Anr. Vs. Lt. Governor through Chief Secretary, Delhi and Ors., (2000)(LS) 213 wherein it was held that in law it was necessary that if the previous service of the transferred official was to be counted for seniority in the transferred post then the two posts should be equivalent. It was further held that any Rule, Regulation or Executive Instruction, which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his service in the deputed post would be violative of Articles 14 and 16 of the Constitution. Taking note of these directions of Honble Supreme Court, the DoP&T amended their earlier guidelines dated 25.09.1986 and issued fresh guidelines on 27.03.2001 stating that seniority be counted from the date of holding analogous post in the parent department or from the date of deputation, whichever was earlier. As far as applicants are concerned, it is not disputed that they were not holding analogous post in their parent department. Hence, their service has to be considered from the date of absorption in NHAI.
5.2 As regard the judgment of Honble High Court of Delhi in the case of Dr. Rajendra Kumar (supra) relied upon by the applicants the respondents have stated that in this case also the Court was not dealing with DoP&T guidelines or inter-se seniority of deputationists on absorption.
5.3 As regards the case of O.P. Gaba (supra) relied upon y the applicants is concerned, the respondents have stated that in this case in situ promotion under the Flexible Complementing Scheme was the subject matter of the case. Since such is not the situation herein, this case was also fully distinguishable from the instant case.
6. We have considered the arguments advanced by both the sides. We have also perused the NHAI Regulations. We find that NHAI Regulations made under the NHAI Act of 1988 were first notified on 11.03.1996. Regulation-15(3) of the aforesaid Regulations read as follows:-
The seniority of persons initially appointed on deputation and subsequently absorbed in the Authority shall be reckoned from the date of their initial appointment. If two or more persons in the same grade get absorbed in the Authority on the same date, their inter se seniority shall be determined with reference to their seniority level in their parent cadre. In the Schedule attached to the aforesaid Regulations, it is mentioned that the posts of DGM(T) were to be filled by transfer/deputation/promotion/direct recruitment. As far as promotions were concerned, the posts were to be filled from candidates holding the post of Manager for a period of atleast 04 years. These Regulations were amended on 23.10.2009. According to the Amended Regulation, the posts of DGM(T) were to be filled by promotion from candidates holding the post of Manager (T) on a regular basis for a period of atleast 04 years and possessing the requisite educational qualifications. (As far as educational qualifications are concerned, there is no dispute between the parties and hence we do not propose to deal with them any further.) 6.1 The Regulations were again amended on 24.08.2012 and as far as seniority is concerned, Regulation-15(3) was substituted as follows:-
The seniority of officers and employees of the Authority shall be determined on the basis of the instructions and guidelines issued by the Central Government (Department of Personnel & Training), from time to time. Another Regulation-22 was inserted, which read as follows:-
In regard to matters not specifically covered by Regulations made under Section 35 of the Act or any general, or special orders made or issued thereunder, the service conditions of the officers and employees of Authority shall be governed by the rules applicable to the employees of the Central Government in general and instructions issued by the Central Government, from time to time. 6.2 After perusing the Regulations of NHAI, we have considered the arguments advanced by both the sides and, in our opinion, two issues are involved in this O.A. One is with regard to determination of seniority of the applicants and the other is with regard to their consideration for promotion. We are of the view that the two issues are different and should not be mixed up with one another. While, it is true that for promotion seniority is important yet there may be cases where some period of service may not count towards seniority but may be relevant for promotion. Thus in the case of inter zonal transfers in Income Tax and Customs, the transferees willingly accept bottom seniority in the zone to which they get transferred on their own request. Yet, it has been held in a catena of cases that if such transferees were eligible to be considered for promotion/upgradation on the basis of their length of service in their previous zone, then they should be so considered even if their seniors were not eligible provided despite their bottom seniority the transferees fall within the zone of consideration for promotion. In this regard the decision of Honble Supreme Court in the case of Renu Mullick Vs. UOI, 1994(1) SCC 373 can be referred to.
6.3 Thus, it is quite clear that there may be cases in which certain period of service may not count for seniority but may be relevant for determining eligibility for promotion. Therefore, it is necessary that seniority and promotion are not mixed up and eligibility of a candidate for promotion be examined in terms of the Rules and Regulation relevant for promotion. In the instant case also it is necessary to examine the eligibility of the applicants for promotion in terms of NHAI Regulations dealing with promotion. As mentioned above, for our purpose the Schedule attached to the Regulations of NHAI is relevant. According to this for the purpose of promotion from Manager (T) to DGM(T) 04 years of regular service is required in the grade of Manager (T). We now proceed to examine whether the applicants fulfill this condition. For this purpose, it is necessary to examine what is the meaning of the term regular service.
6.4 In our opinion regular service is the service rendered on a post after being appointed on the same on regular basis against a regular vacancy. Regular appointment would be appointment made as per procedure prescribed under the relevant Recruitment Rules. An appointment made de hors the Recruitment Rules would be ad hoc and will not be termed as regular. Further, regular vacancy is defined in terms of DoP&T Instructions as contained on pages-95 & 96 of Swamys Compilation on Seniority and Promotion, Thirteenth Edition-2010, para 4.1 of which reads as follows:-
Determination of Regular Vacancies It is essential that the number of vacancies in respect of which a panel is to be prepared by a DPC should be estimated as accurately as possible. For this purpose, the vacancies to be taken into account should be the clear vacancies arising in a post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or from creation of additional posts on a long term. As regards vacancies arising out of deputation, only those cases of deputation for periods exceeding one year should be taken into account, due note, however, being kept also of the number of the deputationists likely to return to the cadre and who have to be provided for. Purely short-term vacancies created as a result of officers proceeding on leave, or on deputation for a shorter period, training etc., should not be taken into account for the purpose of preparation of a panel. In cases where there has been delay in holding DPCs for a year or more, vacancies should be indicated yearwise separately. 6.5 Thus, it follows that an appointment made in consonance with the provisions of the Recruitment Rules against a vacancy, which is long term will be deemed to be regular appointment. Similar observation has been expressed by Honble Supreme Court in the case of K. Madhavan (supra) wherein it has been held that appointment made on a post on regular basis in contra distinction to appointment on ad hoc or stop-gap or purely temporary basis would be deemed to be regular appointment.
6.6 In the instant case, we find that NHAI Regulation do provide for appointment of officers on deputation as Manager (T). Thus deputation as a mode of recruitment is prescribed under the Regulations. There is also no doubt that the vacancies against which the applicants were appointed were long term regular vacancies as the applicants had continued on these posts for several years. It follows that the appointment of applicants as Manager (T) on deputation basis in NHAI was regular appointment and the service rendered by them commencing from their date of deputation would be deemed to be regular service. Hence, the eligibility of the applicants for promotion to the post of DGM (T) should be determined after taking into account this service. Since it is not in dispute that the applicants joined NHAI on different dates between 2004 to 2008, it is obvious that all of them have completed 04 years of regular service as Manager (T) and have therefore become eligible for consideration for promotion to the post of DGM(T) provided they are otherwise eligible.
6.7 The applicants have prayed that directions be given to the respondents to draw the seniority list as per Regulation-15(3) of Regulations 1996. The respondents on their part have stated that they have yet to take action to draw up seniority list. They have further stated that they have enough vacancies of DGM(T) to consider all eligible Manager (T) for promotion and therefore non availability of seniority list of Manager (T) does not come in the way of making promotions to the post of DGM(T). Since admittedly the respondents have yet to take action on drawing up a seniority list, the prayer of the applicants that this Court should give a direction to the respondents as to the manner in which such list should be drawn is pre-mature. The applicants can make a representation to the respondents in this regard and it is for the respondents to consider the same and take appropriate decision in the matter.
6.8 The applicants have also prayed for quashing and setting aside the Circular dated 13.10.2014 by which private respondents were invited for interview. In our opinion even that is unnecessary as the eligibility of private respondents for such promotion is not in doubt. As mentioned above, the applicants are also eligible to be considered since they fulfill the requisite criteria laid down for promotion. As such, giving a direction to the respondents to consider the applicants also in addition to the private respondents would suffice. The respondents have themselves admitted that enough vacancies of DGM(T) are available with them to consider each and every eligible Manager (T) for promotion.
7. We, therefore, dispose of these O.As by giving a direction to the respondents to consider the applicants also for promotion to the post of DGM(T) in the light of observations made above. Such consideration will be done within a period of six weeks from the date of receipt of a certified copy of this order. The result of promotion of the applicants as well as private respondents shall be declared together. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/