Central Administrative Tribunal - Delhi
Bajrang Lal Bagra vs Union Of India on 27 November, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA2711/2009 MA 2195/2009 New Delhi this the 27th day of November, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. Shailendra Pandey, Member (A) Bajrang Lal Bagra, S/o late Shri Hanuman Prasad Sharma, Working as Director (Finance), National Aluminium Company Limited, R/o 35, Aryapalli, Chandrasekharpur, Bhubaneswar-751024. Applicant. (By Advocate Shri R. Venkataramani, Sr. counsel with Shri S.M. Garg, Ms. Manju Aggarwal and Shri Algo K. Joseph) Versus 1. Union of India, represented by the Secretary, Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training, North Block, New Delhi-110001. 2. Ministry of Mines, represented through its Secretary, Shastri Bhawan, New Delhi. 3. National Aluminium Company Limited, represented by its Company Secretary, NALCO Bhawan, Plot No.P/1, Nayapalli, Bhubaneswar-751013 (Orissa). 4. Shri A.K. Srivastav, presently CMD, Cement Corporation of India Limited, Scope Complex, Core No.5,7, Lodhi Road, New Delhi-110003. Respondents. (By Advocates Shri Parag P. Tripathi, ASG with Shri V.S.R. Krishna, Shri P.K. Manohar, Shri Vaibhav Joshi and Shri Rakesh Tikko for Respondent No.3, Shri R.V.Sinha for Respondents 1 and 2, Shri S.K. Gupta and Shri L.R. Bansal for respondent No.4) O R D E R
M. Ramachandran, Vice Chairman (J) By an order dated 11.08.2009, the fourth respondent, Shri A.K. Srivastava, had been appointed as the Chairman-cum-Managing Director of National Aluminium Company Ltd. (NALCO). It was to come into effect on 01.10.2009 and duration was specified as for a period of five years or till the date of his superannuation or till further orders, whichever was the earliest. At the time of passing of such orders, Mr. Srivastava had been functioning as the Chairman-cum-Managing Director of Cement Corporation of India. It is averred that on coming to know of such proceedings, applicant on 09.08.2009 had made a representation to the Government highlighting the possible irregularity that may be there in the procedure adopted. He had later opted to file this Original Application, on 22.09.2009 with a request that the proceedings as above are to be interdicted, and further directions be issued to the respondents to initiate fresh steps for selection to the post of CMD of NALCO. As an interlocutory application, a prayer had been incorporated that the appointment may be stayed. A Bench of the Tribunal had issued notice on the motion and so as to safeguard his interests, had further ordered that the appointment of the fourth respondent will be subject to the decision on the Original Application which fact had to be conveyed to the incumbent before he took over the charge. Taking notice of the urgency expressed by the parties, on consent the matter was finally heard on 18.11.2009.
2. Counter replies had been duly filed by the concerned respondents. We had heard senior counsel Shri R. Venkataramani on behalf of the applicant and Additional Solicitor General Shri Parag P. Tripathi, appearing on behalf of Respondent No.3. Shri R.V. Sinha had appeared for the Central Government and Shri S.K. Gupta along with Shri L.R. Bansal had represented the fourth respondent. Both of them had adopted the contentions, as have been raised by the Additional Solicitor General.
3. Although Shri Venkatramani had highlighted the presence of inequities and suggested presence of possible irregularities in the proceedings leading to the selection, we feel, it may not be a case where interference might be warranted. We may note below the undisputed facts first, contentions that had been raised by respective parties and thereafter give our reasons for arriving at our conclusion as above.
4. NALCO is a prized Public Sector Enterprise of Government of India. The materials produced indicate that NALCO had been functioning without benefit of the duly appointed Chairman-cum-Managing Director at the helms of its affairs, for years together. This was because Mr. Venkatraman who had been invested in the position had to be disassociated from functioning around February, 2004 onwards although his term of appointment was to expire only in June, 2007. Mr. C.R. Pradhan, a Director, was functioning as the acting CMD. During July, 2007, the Government had issued a Notification inviting applications to fill up the post of CMD. Thereafter, on 05.10.2007 the Public Enterprises Selection Board (PESB) had conducted selection/ interview for short listed candidates. It seems that the applicant herein was at that time not in possession of the required qualifications so as to have responded to the Notification concerned.
5. The PESB recommended two names. The panel presented consisted of Mr. C.R. Pradhan, Director of NALCO in the first position and Mr. A.K. Srivastava the fourth respondent as the second person in order of preference. Duly the proposal had been forwarded to the DOP&T. There is no dispute in the date on which papers concerning recommendation had been forwarded. It was on 05.05.2008. The approval of the ACC was required to be obtained before appointment. The names had been forwarded to the Government on 05.05.2008 after vigilance clearance. When the matter was actually under the consideration of the ACC, the CVC by a communication of 07.05.2008 had precipitated an issue, which was sufficient to stall the flow of events. Major penalty proceedings were recommended to be initiated against Mr. Pradhan. When the DOPT came to notice the development, the first reaction was to initiate steps for calling fresh proposals for filling up the post. In the meanwhile, quite unusually it may seem, CVC had on reconsideration, accorded vigilance clearance to Mr. Pradhan. This was on 30.12.2008. Thereupon, the Ministry of Mines had forwarded pending proposals on 29.01.2009 for appointment of Shri Pradhan as CMD. Certainly procedural delay was there, but ultimately the ACC had approved the proposal, on 31.07.2009 whereby Mr. C.R. Pradhan was to be appointed as CMD for a period upto 30.09.2009, namely, the date of his superannuation. It was also decided to appoint the fourth respondent, whose name was there in the panel, as already been recommended by the PESB. He was to be appointed as the CMD w.e.f. 01.10.2009 for a period of five years. The order is extracted hereinbelow:
Reference correspondence resting with the Ministry of Mines communication No.1/1/2005-Met.I dated 05.6.2009.
2. The Appointments Committee of the Cabinet (ACC) has approved the following:-
(i) Appointment of Shri C.R. Pradhan, Director (Projects & Technical), NALCO as Chairman-cum-Managing Director, NALCO, in Schedule `A scale of pay of Rs.80,000-3%-1,25,000/- for a period upto 30.9.2009 i.e. the date of his superannuation or until further orders, whichever is earlier.
(ii) Appointment of Shri A.K. Srivastava, S. No.2 candidate in the panel recommended by the PESB as Chairman-cum-Managing Director, NALCO, w.e.f. Ist October, 2009 for a period of five years or till the date of his superannuation or till further orders, whichever is the earliest, with the direction that this may not be treated as a precedent in other cases.
(iii) Extension of additional charge arrangement for the post of Chairman-cum-Managing Director, NALCO, in favour of Shri C.R. Pradhan, Director (P&T), NALCO, for a period w.e.f. 01.4.2008 till his appointment as CMD, NALCO on regular basis or until further orders, whichever is earlier.
3. The ACRs of S/Shri C.R. Pradhan and A.K. Srivastava are returned herewith, the receipt of which may please be acknowledged. Most of these details, of course, we could gather from the counter affidavit filed on behalf of the first and second respondents and which are not seriously disputed. We also can notice from Annexure R-2 filed along with the counter reply, that extension of additional charge arrangement as CMD, in favour of Mr. C.R. Pradhan, from 01.04.2008 till the date of his regular appointment also had been ordered. Evidently, this was a routine regularization ex post facto, since from 01.04.2008 Mr. Pradhan was continuing in the post of CMD, without the formal authority of any specific orders. We find that the applicant had practically no dispute about the eligibility and selection of Mr. C.R. Pradhan as the CMD (which fact has been attempted to be exploited at the hands of the respondents). But according to the Senior Counsel, the structure of the OA would indicate that there is an inbuilt challenge of such proceedings as well since always the basic contention was that appointment could not have been made from a panel which stood outdated by efflux of time. The counsel submits that since Mr. Pradhan was having only a short duration, specifically his appointment had not been made, subject matter of attack. In recapitulation, perhaps the unexpected intervention of CVC had cast a spell on the scenario, as otherwise Mr. Pradhan could have had a longer tenure, and it would simultaneously have subserved the interest of the applicant. The submissions of Mr. Venkataramani against the alleged irregular appointment could be summarized as following.
6. The vacancy of the post of CMD, NALCO required to be filled up on priority basis, as the relevant guidelines of the Government required that selection process to fill up sensitive posts was to get pointed attention, and a time bound execution. The formalities adopted by the PESB for selection of CMD were unexceptionable. But since the list had been prepared on 05.10.2007, it would have been valid only upto 05.10.2008 going by the general norms. Therefore, appointments made from the panel on 03.08.2009 and 11.08.2009, would have been impermissible. Counsel submits that the law is well settled that from a time barred select list, appointment could not have been permissible. The delay by itself would have operated in thwarting the fundamental rights of third persons for being considered to top positions. A fresh selection alone was, therefore, the recourse. The second limb of the argument is that after appointing Mr. Pradhan, it would not have been possible for the respondents to adopt a methodology, whereby a successor as well is appointed from the select list. By appointment of the first selected candidate, list was to be deemed as lapsed/served the purpose. There was only one notified post and when the selection has fructified and appointment is conferred on the person who had been adjudged having the highest rank, it would not have been possible to consider that the select list continued to be in operation. The second candidate, in any view of the matter, was inferior in merit. Such a procedure would have violated the rights of third parties and their opportunity to be considered for public employment. A clear vacancy which had been there had been filled up, and the select list ceases to operate. The post which resultantly was to become vacant could have been filled up only by calling up fresh candidates by way of a selection process. Referring to information received under the Right to Information Act, it is submitted that the Government had conceded that such practice viz. conferring appointment to persons successively from the same select list was not seen to have been generally followed. Ignoring the procedure that was being followed uniformly, the preference and advantage given to the fourth respondent by itself according to Mr. Venkatramani was sufficient to indicate that he was being favoured out of the way at the expense of third parties and, therefore, the only conclusion possible was that the proceedings were actuated by favourtism.
7. By way of answer, Mr. Tripathi, the Additional Solicitor General submits that the applicant had not been able to point out that there has indeed been violation of any statutory rules or guidelines. There was nothing in the system which prohibited drawing up of a panel in reserve and a new concept has not been evolved, as alleged, to favour any particular individual. He submits that the circumstances amply would indicate that there was no legal injury about which the applicant could have successfully maintained any action. The proceedings were transparent in all essential details and the context in which the impugned orders were issued were to ensure that public interest was preserved and a large organization like NALCO was not to be left to uncertainties because of the non-availability of a proper head. The acting Chairman-cum-Managing Director, of course, had been continuing for about four years. Presently, it was a case where a duly constituted body had recommended his name for appointment. After vigilance clearance, the DOPT had forwarded his name for consideration by the ACC. Nor it could be stated that there was undue delay in taking up the necessary follow up proceedings. Well before the completion of one year, two names had gone to the ACC, but in the meanwhile, unexpected developments had taken place, for which neither the Government nor the concerned persons were answerable. The CVC had recommended prosecution proceedings against the first named who had been nominated to be appointed as the CMD. Of course, on coming to know the above, the initial reaction of the DOPT was to go for a fresh selection. Even at that point of time since there were no remarks as against the fourth respondent, it would have been possible to consider him for appointment, since he was positioned as Item No.2. But, however, the scene had again changed by December, 2008 when the CVC had cleared Mr. Pradhan and since there was no impediment in his ascension as CMD, further follow up steps were duly taken, which, of course, had consumed further time before the decision was actually implemented. At the time of appointment of Mr. Pradhan, what weighed with the Government was that he was to retire in a months time and if a fresh selection was decided to be set in motion, it would have resulted in a situation where only acting arrangement as was existing before was to be re-introduced. The Government had with them a panel and there was nothing irregular, therefore, to decide that a person who ranked next, and who too stood cleared by the ACC, could be considered for appointment to the post of CMD. The list did not suffer from any defect, and the method suggested by the applicant, if adopted would have been time consuming, and unnecessary. When the issue thus is examined in a broad perspective, the counsel submits, there would have been no scope to allege that it involved any arbitrariness or unreasonableness. The arguments of the applicant at the most are self serving and by far hyper-technical.
8. It is also highlighted that there was no allegation of any bias. Possibly, if there was a decision to advertise the post of CMD, as a Director attached to the NALCO, the applicant might have had an opportunity to stake his claim for the position. But this is far too feeble and far fetched situation for him to assert that his legitimate expectations have been broken and for that reason, the appointment orders are liable to be set aside. It is refuted that any of his fundamental rights have been subjected to jeopardy. Because of the short term alone, Mr. Pradhan could have functioned as CMD, prudence demanded that the issue was viewed with far sightedness.
9. The learned senior counsel appearing on behalf of the applicant has conceded that there is no statutory rule which prescribes for a time limit to a panel/rank list, as far as the present selection is concerned. Of course, if the life of a panel is determined by statute, strict adherence to the norms required to be there. Counsel had , however, invited our attention to a decision in State of Bihar Vs. Amrendra Kumar Mishra (2006 (12) SCC 561 where it has been observed as following:
.Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel. Reliance also had been placed on the observations of the Supreme Court in State of Rajasthan and Ors. Vs. Jagdish Chopra (2007 (8) SCC 161) where the Court had observed that in the absence of any rule, ordinary period of a validity of a select list should be one year. In Girdhar Kumar Dadhich and Anr. Vs. State of Rajasthan & Ors. (2009 (2) SCC 706), the observation in Paragraph 19 is to the following effect:
Furthermore, the select list would ordinarily remain valid for one yearWhether the validity of the select list was extended or not is not known. Extension of select list must be done in accordance with law...
10. The second part of the argument, as referred to earlier, was that if the process of appointment is completed vis-`-vis proposed/notified vacancies, thereafter the panel prepared cannot be considered as live any more. Shri Venkatramani had referred to the decision of State of Bihar & Anr. Vs. Madan Mohan Singh & Ors. (1994 Supp. (3) SCC 308). The Court had observed that when 32 vacancies have been notified, the selection process should ensure that only 32 posts were filled up and no further. Relying on the decision, it is argued that selection has to be carried out exclusively to the earmarked vacancy and that alone was the proposal in the case at hand. Proceeding on those lines, Mr. Venkatramani submits that the decision reported as Rajendra Prasad and Anr. Vs. Khirodhar Mahto and Ors. (1994 Supp. (3) SCC 314) was to the point. When appointment was proposed to a solitary post, and when such appointments have been carried out, there was no jurisdictional power to keep the panel alive for subsequent selections. This was so even in case the post got vacated, after the appointment. The normal course in such circumstances to be adopted was to go for a fresh selection. Counsel also had invited our attention to State of Punjab Vs. Raghbir Chand Sharma & Anr. (2002 (1) SCC 113). It had been held that with the appointment of the first candidate for the only post in respect of which the select panel was prepared, the panel ceased to exist. No one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the resignation of the person appointed from the panel or in respect of any other vacancies arising subsequently. It is, therefore, reiterated that the impugned order which went to operate as to confer benefit to the second in line clearly was erroneous and flouted the law and principles laid down by the Supreme Court. It was argued that the above line of reasoning could also been seen from the judgment of the Supreme Court in State of UP Vs. Rafiquddin and Ors. (1987 Supp.SCC 401).
11. However, learned ASG submits that the decisions cited were clearly distinguishable. In Rafiqudins case (cited supra), a subsequent list had forth come and the attempt of the Government was to select persons from the pre-existing panel which precisely could have been irregular. Referring to Raghbir Chand Sharmas case, it had been pointed out that the claim had been repelled, taking notice of the circumstances that the Government had bonafidely taken a decision to introduce a channel of promotion, and it was in that context that it had been observed that second person in the list may not have any sustainable claims. The rest of the cases cited, also according to him, were out of context. Further, there was nothing to suggest that the panel had lapsed after one years time. The delay at DOPT level or ACC level were not to be considered as debilitating the final list formulated by the PESB, since it was always at the stage of active consideration..
12. According to the learned counsel, the legal position arising for consideration here has been fully explained in A.P. Aggarwal Vs. Government of NCT of Delhi and Anr. (2000 (1) SCC 600). Inviting our attention to Paragraphs 5 and 9, it is contended that the observations of the Tribunal that a person is in the waiting list does not get any right to be appointed to the post if a vacancy arises subsequently, stands overruled. Relying on Office Memorandum of 14.05.1987, it had been observed that the decision of the Tribunal was clearly erroneous. What has been categorically held is that it was not open to the Government to ignore the panel which was already approved and accepted. Recourse of a fresh selection process without giving any proper reason for resorting to such a procedure was improper. In a case where the Government held opinion that a person included in the panel was unfit, perhaps it would have been possible to go for a fresh selection, but not otherwise.
13. It is highlighted that the view taken by the Supreme Court in 1995 Supp. (2) SCC 230 (R.S. Mittal Vs. Union of India) requires to be adopted as a guideline. A person in select panel although has no vested right to be appointed to the post for which he was empanelled, nonetheless he has a right to be considered for appointment and the appointing authority cannot ignore the select panel or decline to make an appointment on its whims. When a person is selected by a selection process and there is a vacancy which can be offered to him, of course, keeping in view the merit position, ordinarily there is no justification to ignore him for appointment and there has to be a justifiable reason to decline appointment to one who is on the select panel. It is further pointed out that Office Memorandum No. 39036/6/88-Estt. (B), dated 18.01.1990 supplied the guidelines. The panel of candidates in order of merit is to be kept in reserve to be made use of in a contingency when the recommended candidate does not join the post for one reason or the other. It is submitted that the examples given are not exhaustive, but only illustrative. In the event of the resignation or death of a candidate within six months of his appointment, resort could over again be made to the existing panel. On the strength of the above, the contention is that there is no absolute principle barring conferment of appointment to the selectees on exigencies of service. Discretionary powers can hardly be used to set aside such appointments. It is not advisable while the Tribunal exercises powers under Section 19 of the Act.
14. From the defence side, reliance was also placed on an Office Memorandum dated 13.06.2000, Paragraph 2 of which reads as following:
The Fifth Central Pay Commission, in para 17.11 of its Report, has recommended that with a view to reduce delay in filling up of the posts, vacancies resulting from resignation or death of an incumbent within one year of his appointment should be filled immediately by the candidate from the reserve panel, if a fresh panel is not available by then. Such a vacancy should not be treated as a fresh vacancy. This recommendation has been examined in consultation with the UPSC and it has been decided that in future, where a selection has been made through UPSC, a request for nomination from the reserve list, if any, may be made to the UPSC in the event of occurrence of a vacancy caused by non-joining of the candidate within the stipulated time allowed for joining the post or where a candidate joins but he resigns or dies within a period of one year from the date of his joining, if a fresh panel is not available by then. Such a vacancy should not be treated as fresh vacancy. Thus, it was a case of bonafide exercise of powers, there was no violation of any statutory rules or norms and the proceedings whereby the fourth respondent had been conferred appointment was entirely in public interest.
15. We are inclined to agree with the contentions as above submitted. The applicant had in his representation stated that he had an excellent track record and himself was preparing to face a selection, if the post of CMD had been renotified. But the Government has checkmated him by appointing the fourth respondent. The question is whether any of his legitimate expectations have been spoiled. May be, in a case of fresh selection, the applicant could have been able to put his best foot forward. In service it is not uncommon that fresh avenues may open up or there might be occasions where one may feel frustrated as the course of events might be beyond prediction and expected benefits may elude. We do not at all find that the Government could be blamed of committing any arbitrary decision. The applicant has not been able to make out a case for upsetting the selection made. The respondents have clarified and explained the reasons which had prompted the Government to come up with the impugned orders. When there is no statutory prohibition for operating a panel, the competent authority will have the right to keep such panel alive for appropriate reasons and for a reasonable period. The circumstances highlighted in the Office Memorandum to which we had occasion to advert, are illustrative. If all went well, Mr. Pradhan would have been cleared for appointment without undue strain. But the unexpected intervention of CVC had for a while blocked the smooth flow of events. When he was cleared, there was nothing against the said person excepting that he could have held the office on a regular basis only for about one month. The competence of the fourth respondent had been accepted and when the panel was readily available, it would have been in the fitness of things to confer on him regular appointment, so that without any break, a competent hand would have come to man the post of CMD of NALCO. Since a very short duration alone was involved, expedition demanded that his successor was also nominated, without violating any set rules. That alone has been done.
16. The respondents had made available to us the concerned files, including the minutes of the ACC. Evidently it tallies well with the facts which have been highlighted by the respondents in their counter affidavit. It discloses that the issue of revalidation of the panel had come up but it had been recorded on 11.02.2009 that as the panel had not lapsed, further processing could have been continued. Thus, this is a case where the point had not been overlooked. It is also seen that when there was doubt about the candidature of Mr. Pradhan, it had almost been decided that the next in line with the fourth respondent who had obtained vigilance clearance could be considered for appointment, but since Mr. Pradhan had been cleared from vigilance clearance angle, the proposal was not further pursued. We also find that Members of Parliament (Shri Basudev Acharia and Shri Girdhar Gamang) had written to the Prime Minister recommending Mr. Pradhan, suggesting that he was being harassed for no valid reasons, but as far as the present case is concerned, this becomes irrelevant. For selecting the fourth respondent as a successor to Mr. Pradhan, the ACC had pointed out that it would have been awkward to appoint a person who could have had tenure of three months alone and to scrap the panel. Mr. Srivastava who had been cleared could have had tenure of five years and it had been considered as a plus point in the interest of the organization.
17. We approve the decision of the ACC whereby it was ordered that after the brief period for which alone the services of Mr. Pradhan might have been available, his successor who had cleared all hurdles could have been appointed. The alternate course suggested by the fourth respondent that after appointing Mr. Prdhan for a couple of months, steps were to be taken for notifying the vacancy evidently would have been advantageous to his interest alone. It would have been detrimental to the larger interest of NALCO; that we might be able to observe with the materials presently before us. Resultantly, the Original Application is dismissed. M.A. 2195/2009 also stands closed. There is no order as to costs.
(Shailendra Pandey) (M. Ramachandran) Member (A) Vice Chairman (J) `SRD