Central Administrative Tribunal - Jabalpur
Dr. Pawan Kumar vs Union Of India on 20 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING:-GWALIOR
Original Application No.201/00350/15
Gwalior, this Thursday, the 20th day of August, 2015
MRS. MANJULA DAS, JUDICIAL MEMBER
MR. G.P.SINGHAL, ADMINISTRATIVE MEMBER
Dr. Pawan Kumar, S/o Mahavir Prasad,
Aged 55 years,
Occupation Service (Director, Narmada Control Authority, Indore)
R/o D-4/1, Narmada Colony,
Scheme No.78, Vijay Nagar, Indore-452010 - Applicant
(Applicant in person)
V e r s u s
1. Union of India, Through Secretary,
Ministry of Water Resources, RD&GR
Shram Shakti Bhawan, Rafi Marg, New Delhi-110001
2. Narmada Control Authority,
Through its Ex-0fficio Chairman,
Shram Shakti Bhawan, Rafi Marg, New Delhi-110001
3. Mr. Afroz Ahmed, Director (IA&R),
Narmada Control Authority, Officiating Member Environment
& Rehabilitation, Narmada Control Authority,
Narmada Sadan, Scheme 74B, Vijay Nagar,
Indore, Madhya Pradesh-452010 -Respondents
(By Advocate Shri Satyendra Kumar Patel)
(Date of reserving the order : 17.8.2015)
O R D E R
By G.P.Singhal, AM.-
By filing Writ Petition No.8442 of 2014 the applicant had approached the Honble High Court praying for the following reliefs:
It is therefore prayed that the present petition may kindly be allowed and Rules 2013 (Annexure P/6) may be declared to be ultra vires Article 14,16 and 320(3) of the Constitution of India as also ultra-vires to the Clause XVI.1(2) of the award (Annexure P/2) and Clause 2(a) of the Scheme (Annexure P/3) flowing from Inter-State River Water Disputes Act,1956 enacted under Article 262 of the Constitution with costs.
However, the said Writ Petition was disposed of by the Honble High Court with direction to the applicant to file an appropriate OA before this Tribunal. Hence, this Original Application.
2. By filing this Original Application, the applicant has prayed for the following reliefs:
8.a It is prayed that the present petition may kindly be allowed with costs.
8.b Rules 2013 Annexure A/6 with its schedules A/6-1 to 6-4 may be declared to be ultra vires a. to Article 14 & 16 & 320 (3) of the constitution of India b. to Clause XIV-1(2) of the award Annexure A/2 and c. to Clause 2 (a) of the statutory scheme Annexure A/3 flowing from Inter-State River Water Disputes Act, 1956 enacted under Article 262 of the constitution.
8.c. Order dated 5th December 2014 Annex A/12 appointing Respondent No.3 to the post of Member E&R be quashed and set aside by declaring it illegal and contrary to Narmada Water Scheme and orders dated 8th October 2002 of High Court of Madhya Pradesh and contrary to provision to Article 309 vide Para 7 of the Statue.
8.d. Any other relief that the honable Tribunal may consider fit under facts and circumstances of the case.
3. The applicant has challenged the vires on the following grounds:- (i) According to Narmada Water Scheme (for brevity NWS) (Annexure A-3) there is a provision to appoint three persons not below the rank of Joint Secretary as independent members of Narmada Control Authority (for brevity NCA), one of which shall be designated as Executive Member of the Authority and one person not below the rank of Joint Secretary to the Government of India or an Additional Secretary in the State Government having experience in the fields of environment and rehabilitation of displaced persons to be appointed by the Central Government as independent member. For appointment of Member, Environment and Rehabilitation (for brevity E&R) the NCA Executive Member, Member (E&R) Member (Civil), and Member (Power) Recruitment Rules, 2013 (hereinafter referred to as the Recruitment Rules 2013) provide for appointment of persons working in Junior Administrative Grade (for brevity JAG) of Rs.15,600-39100 and Grade Pay of Rs.7600/- or in Pay Band of Rs.37400-67000 and Grade Pay of Rs.8700/-, as against, the persons of the rank of Chief Engineer, who work in Pay Band-4 of Rs.37400-67000 with Grade Pay of Rs.10,000/-. Thus, the recruitment rules are not as per NWS.
(ii) The Recruitment Rules of 2010 provided for appointing persons of JAG rank working in NCA and in case of their appointment the post was deemed to have been filled by promotion. However, this provision has been deleted from the Recruitment Rules,2013.
(iii) Govt.of India had no authority to formulate recruitment rules in violation of NWS.
4. The respondents in their reply have submitted that the applicant had participated in selection held on advertisement issued under the Recruitment Rules 2010, as well as on advertisement in terms of Recruitment Rules, 2013. However, he was not selected since it was merit based selection. But since he had participated in the selection process he is debarred from challenging the recruitment rules under which selection was made. NWS provides for appointment of Members not below the rank of Chief Engineer, however, it does not provide that what should be the status of persons eligible for consideration for appointment as the Members. Government of India has, after consultation with the States of Madhya Pradesh, Gujarat and Maharashtra and also after consulting Department of Personnel and Training, which is the nodal department in this matter, formulated the Recruitment Rules,2013 and there is no question of there being ultra vires to the Constitution. Thus, the Original Application deserves to be dismissed.
5. We have heard the learned counsel of both sides and carefully perused the pleadings of the respective parties and the documents annexed therewith.
6. The issue in this case relates to the recruitment rules for appointment of Member (E&R). In this regard, provision has been made under Para XI-A of NWS which reads as under:-
(xi)(a) One person not below the rank of a Joint Secretary to the Government of India or an Additional Secretary in a State Government having experience in the fields of Environment & Rehabilitation of displaced persons to be appointed by the Central Government as independent member.
Thus, it provides for appointment of a person not below the rank of a Joint Secretary to the Government of India or an Additional Secretary in the State Government. Since Additional Secretary in the State Government are below the rank of Secretary in State Government which are of the level of Joint Secretary to the Government of India, Additional Secretary in State Governments are normally of JAG i.e. in the Pay Band of Rs.15600-39100 with Grade Pay of Rs.7600/- or in Pay Band of Rs.37400-67000 with Grade Pay of Rs.8700/-. In these circumstances the provision in Recruitment Rules,2013 for eligibility for appointment as Member (E&R) is not in violation of the provisions of NWS as it provides for selection from the persons holding post in JAG in the Pay Band (PB-3) of Rs.15,600-39100 and Grade Pay of Rs.7600/- (or equivalent) with minimum 8 years of regular service in the grade (including Non Functional Selection Grade in the Pay Band (PB-4) of Rs.37400-67000 and Grade Pay of Rs.8700/- (or equivalent/higher) in the parent department. In any case the post of Member (E&R), NCA carries pay scale in the Pay Band of Rs.37400-67000 with Grade Pay of Rs.10000/-, and, therefore, the selection for appointment to this post from persons in JAG is apparently reasonable. Thus, we do not find any violation of NWS in formulation of Recruitment Rules,2013.
7. In the matters of State of M.P. Vs. Rakesh Kohli, (2012) 6 SCC 312, the Honble Supreme Court has held that while dealing with constitutional validity of a law enacted by Parliament or State Legislature, the court must have regard to the following principles:
(i) there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature,
(ii) no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional infirmity has to be found,
(iii) the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come into existence,
(iv) hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law.
8. While dealing with the aspect as to how and when the power of the court to declare the statute unconstitutional can be exercised, the Honble Supreme Court in the matters of Govt. of A.P. Vs. P. Laxmi Devi, (2008) 4 SCC 720, has held as under:
46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament can make under Schedule VII List I, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto v. State of Kerala (1979)1 SCC 23. Also, it is none of the concern of the court whether the legislation in its opinion is wise or unwise.
9. In the matters of Mc Dowell and Co. (1996) 3 SCC 709 while dealing with the challenge to an enactment based on Article 14, the Honble Supreme Court stated as follows:
43. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz. (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by sub-clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom.
10. In the matters of Bengal Immunity Co. Ltd. Vs. State of Bihar, AIR 1955 SC 661 a seven-Judge Bench of the Honble Supreme Court while dealing with hardship in the statutes stated as follows:
43. If there is any real hardship of the kind referred to, there is Parliament which is expressly invested with the power of lifting the ban under clause (2) either wholly or to the extent it thinks fit to do. Why should the Court be called upon to discard the cardinal rule of interpretation for mitigating a hardship, which after all may be entirely fanciful, when the Constitution itself has expressly provided for another authority more competent to evaluate the correct position to do the needful?
11. In the matters of State of Bihar Vs. Kameshwar Singh, AIR 1952 SC 252 the Honble Supreme Court has held that :
52. The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence.
57. In our opinion, the court should, therefore, ordinarily defer to the wisdom of the legislature unless it enacts a law about which there can be no manner of doubt about its unconstitutionality.
12. The Constitution Bench of the Honble Supreme Court in the matters of Mohd. Hanif Quareshi Vs. State of Bihar, AIR 1958 SC 731, while dealing with the meaning, scope and effect of Article 14, has held that to pass the test of permissible classification, two conditions must be fulfilled, namely,
(i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and
(ii) such differentia must have rational relation to the object sought to be achieved by the statute in question.
In the aforesaid matter Mohd. Hanif Quareshi (Supra), their lordships have further stated that classification might be founded on different basis, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. In the said matter their lordships have further observed as under:
15. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.
13. In the matters of Karnataka Bank Ltd. (2008) 2 SCC 254 while referring to above decisions, the Honble Supreme Court has held as under:
19. The rules that guide the constitutional courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; to doubt the constitutionality of a law is to resolve it in favour of its validity. Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. (See State of Bombay v. F.N. Balsara AIR 1951 SC 318)
14. In the matters of Rakesh Kohli (supra) the Honble Supreme Court has held as under:
(16). The statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. The court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. Sans flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature is not declared bad.
(17). This Court has repeatedly stated that legislative enactment can be struck down by court only on two grounds, namely (i) that the appropriate legislature does not have the competence to make the law, and (ii) that it does not (sic) take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions.
15. In the instant case we find that the Recruitment Rules of 2013, were made after due consultation with the nodal Department of Personnel and Training, which do not violate any provisions of the Constitution, as alleged by the applicant. Thus, in view of the settled legal position as narrated above, we do not find any merits in the contentions raised by the applicant in this regard and same are rejected. Therefore, the relief sought for by the applicant in Para 8(b) of the instant Original Application is rejected.
16. We may also observe that the applicant had participated in selection held on the basis of advertisement issued under the Recruitment Rules 2010 and as well as again consequent to the advertisement issued in terms of Recruitment Rules,2013. However, he was not selected since it was merit based selection but since he had participated in the selection process he is debarred from challenging the recruitment rules under which selection was made as it is well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. In this connection, in the matters of Vijendra Kumar Verma Vs. Public Service Commission, (2011) 1 SCC 150, the Honble Supreme Court has held as under:
(24) When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.
(25) In this connection, we may refer to the decision of the Supreme Court in G. Sarana (Dr.) v. University of Lucknow (1976) 3 SCC 585 wherein also a similar stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alia reads thus:
15. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. (26) In P.S. Gopinathan v. State of Kerala(2008) 7 SCC 70this Court relying on the above principle held thus:
44. Apart from the fact that the appellant accepted his posting orders without any demur in that capacity, his subsequent order of appointment dated 15-7-1992 issued by the Governor had not been challenged by the appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions. He could have opted not to join at all but he did not do so. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the appellant is estopped and precluded from questioning the said order dated 14-1-1992. The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, oneof them being G. Sarana (Dr.) v. University of Lucknow(1976) 3 SCC 585 (27) In Union of India v. S. Vinodh Kumar (2007) 8 SCC 100 it was held that:
18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (28) Besides, in K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395 in SCC paras 72 and 74 it was held that the candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel.
17. As regards the relief claimed by the applicants for quashing the appointment order of respondent No.3 dated 5.12.2014 (Annexure A-12), we may observe that while passing the order in an earlier Original Application No.1013/2014 filed by the applicant himself, the Tribunal has dealt with the matter of selection of respondent No.3 to the post of Member (E&R) and dismissed the said Original Application vide order dated 5.5.2014, relevant paragraph of the said order read thus:
(3). The brief history of the case, as reflected from the pleadings as well as from the departmental files, is that the Narmada Control Authority (for brevity NCA) has been set up under the orders of the Narmada Water Disputes Tribunal as machinery for implementation of its directions and decisions. The authority started functioning from 20th December, 1980. The authority is a Body Corporate and is funded in equal proportions by all the four party states i.e. states of Madhya Pradesh, Gujarat, Maharashtra, Rajasthan. As per clause 2(a) (ix) to (xi) of Narmada Water Scheme, 1980, the Central Government makes appointments to the posts of certain independent Members of NCA, including that of Member (Environment & Rehabilitation) (for brevity E&R).
(4). The present case relates to filling up of the post of Member (E&R), NCA. This post carries the Pay Band-4 of Rs.37400-67000 + Grade Pay of Rs.10000/-. The post was vacant with effect from 5.11.2004. With a view to fill up the vacant post of Member (E&R), NCA, on a regular basis, a vacancy Circular inviting applications from willing and suitable officers was sent to all the State Governments, Ministries/ Department of the Central Government and all organizations of Ministry of Water Resources, etc. on 11.10.2004, 13.12.2005 and 06.2.2006 and the post was advertised in the Employment News in July, 2005 and January, 2006. Despite these efforts applications from suitable officers, fulfilling the requirements of the post of Member (E&R), were not received in the Ministry.
(5). The Recruitment Rules of the post of Member (E&R), NCA were revised in May, 2010. The eligibility criteria for appointment to the post of member (E&R) in the NCA was as under:-
Officers under the Central/State Governments/Union Territories/ Recognized Research Institutions/ Semi Government/Autonomous/ Statutory Organizations including officers of Narmada Control Authority:-
(a) (i) Holding equivalent post (Senior Administrative Grade) on a regular basis in the parent cadre/department; Or
(ii) Holding post in the Junior Administrative Grade in the pay band (PB-3) of Rs.15600-39100 and Grade Pay of Rs.7600/- (or equivalent) with minimum 8 years of regular service in the grade (including Non Functional Selection Grade) in the Pay Band (PB-4) of Rs.37400-67000 and Grade pay of Rs.8700/- (or equivalent/higher) in the parent cadre/department; OR
(iii) with minimum 17 years of regular service in Group A posts or equivalent posts in the service out of which at least 4 years of regular service should be in the Junior Administrative Grade (including service rendered in the Non Functional Selection Grade) in the parent cadre/department;
And
(b) the officer should possess the following qualifications and experiences:-
Essential
(i) Degree in Engineering/Science or equivalent from a recognized University.
(ii) The officer should have minimum of overall experience of 5 years in policy, planning and co-ordination aspects of water resources sector including environmental safeguards, environmental impact studies and its monitoring in water resources project; and/or
(iii) Coordination/implementation of rehabilitation and resettlement of project affected persons of irrigation and multipurpose river valley projects.
Desirable Experience in dealing with Inter-State issues.
(6). After revision of Recruitment Rules in May 2010, the post of Member (E&R),NCA was circulated afresh to all the concerned Ministries/Departments/Offices of the Central Government, State Governments, PSUs etc. vide the Respondent-Ministrys letter dated 9.9.2010 to invite applications from suitable and willing officers for appointment on deputation basis. The post was also advertised in the Employment News in its issue dated 23-29.10.2010 giving the last date as two months from the date of publication of the same in the Employment News. In response, applications of following three officers were received:
(i) Dr. Afroz Ahmad, Director (IA&R), NCA.
(ii) Dr. Pawan Kumar, Director (Environment) (the applicant); and
(iii) Shri V.N.Goel, Chief Engineer (Beas Dam), Govt. of Haryana.
(7). Since the post of Member (E&R) was lying vacant for a very long time, the process for revival of the said post was taken up and the Ministry of Finance (Department of Expenditure) approved revival of the post vide their I.D. dated 21-3-2011.
(8). A meeting of the Search-cum-Selection Committee was held on 11.8.2011 under the Chairmanship of Secretary (WR) to consider the suitability of Dr.Afroz Ahmed, Director (IA&R), NCA and Dr. Pawan Kumar, Director (Environment), NCA and Shri V.N.Goel, Chief Engineer (Beas Dam), Govt. of Haryana for appointment to the post of Member (E&R) in NCA.
(9). The Committee noted that all the three officers were quite qualified and possess adequate experience in their respective areas of jurisdiction and field of duties and responsibilities. However, in view of the balance length of service grading and other details given in the Annual Confidential Reports of the above mentioned officers, the Search-cum-Selection Committee recommended the name of Dr. Afroz Ahmad for appointment to the post of Member (E&R) in the NCA. The Ministry of Water Resources, vide their letter dated 8th September, 2011 sought approval through DoPT of the Appointment Committee of the Cabinet(ACC) to the recommendations made by the Search-cum-Selection Committee regarding the candidature of Dr. Afroz Ahmad for appointment to the post of Member (E&R), NCA.
(10). However, the DOPT sought certain clarifications vide their OM dated the 21st September and 13th December, 2011, including whether the recruitment rules were finalized in consultation with DoPT. The-respondent-Ministry then informed that the recruitment rules were not referred to the DoPT for approval. Accordingly, the DOPT/ACC vide their OM dated 13th February, 2012 informed the respondents that the ACC has not approved the proposal for appointment of Dr. Afroz Ahmad, Director (IA&R), NCA to the post of Member E&R in NCA, and further that the ACC has also directed this Ministry to frame recruitment rules for the post in consonance with the Narmada Water Scheme in consultation with the concerned authorities.
(11). It was observed that while as per Note 4 below the provision of column 12 of the said Recruitment Rules it is provided that in case of officers in NCA, fulfilling the eligibility conditions, considered and found fit for the post of Member (Environment & Rehabilitation), the post shall be deemed to have been filled up by promotion, as per Para 3 of Narmada Water Scheme, notified vide No. SO770 (E) dated 10.9.1980 (as amended up to 12.6.2000), each independent Member of NCA shall be a full time Member and be appointed for a term not exceeding five years. Since there is no method of recruitment by promotion in the above said Recruitment Rules, the provision of deemed to have been filled up by promotion would not be applicable in this case. The period of appointment (Five years) as given under the said scheme will be applicable.
(12). In nut shell, the ACC had found that the Recruitment Rules of 2010 is not in consonance/conformity with the Narmada Water Scheme and therefore ACC has not approved the proposal of Ministry of Water Resources (MoWR) based on the recommendations of Search-cum-Selection Committee chaired by Secretary, MoWR for the appointment of respondent No.4 i.e. Dr. Afroz Ahmad as Member (Environment and Rehabilitation) in NCA.
(13). That, in compliance to the direction of the Appointments Committee of the Cabinet (ACC) dated 13.02.2012 & 23.07.2012 (Annexure-R/4-3 & Annexure R/4-4), the Central Government (in this case the Ministry of Water Resources) has framed/revised the Recruitment Rules (RRs) in consonance/conformity with the Narmada Water Scheme vide Notification No.36/06/2010- PR/E.IV(Vol.II)/1223, dated 23.08.2013.
(14). As per the approved recruitment rules notified in 2013, the eligibility criteria for appointment to the post of member (E&R) in the NCA is as under:-
Officers under the Central/State Governments/Union Territories/ Recognized Research Institutions/ Public Sector Undertakings/ Semi Government/Autonomous/ Statutory Organizations including officers of Narmada Control Authority:-
(a) (i) Holding analogous post (Higher Administrative Grade) on a regular basis in the parent cadre/department; Or
(ii) Holding post of Chief Engineer or equivalent post (Senior Administrative Grade) in the Pay Band (PB-4) of Rs. 37400-67000/- and Grade Pay of Rs.10000/- (or equivalent) with minimum 3 years of regular service in the parent cadre/department; or
(iii) with minimum of 25 years of regular service in Group A posts or equivalent posts in the service out of which at least 1 year of regular service should be in the Senior Administrative Grade i.e. Chief Engineer or equivalent post in the Pay Band (PB-4) of Rs.37400-67000/- and Grade Pay of Rs.10,000/- or equivalent in the parent cadre/department;
And
(b) the officer should possess the following qualifications and experiences:-
Essential
(i) Degree in Civil/Electrical/Mechanical Engineering from a recognized University.
(ii) The officer should have minimum of overall experience of 5 years in planning, formulation/execution of large, major and multipurpose river valley projects in the irrigation/power sector and also adequate administrative acumen.
Desirable Experience in dealing with Inter-State issues.
(15). The earlier provision as stipulated in Note 4 below the provision of column 12 of the Recruitment Rules 2010, that in case of officers in NCA, fulfilling the eligibility conditions, considered and found fit for the post of Member (Environment & Rehabilitation), the post shall be deemed to have been filled up by promotion, do not form part of the revised Recruitment Rules,2013.
(16). Thereafter, an open advertisement EN 34/97, in the Employment News dated 23-29 November, 2013 as per Recruitment Rules of 2013 for the appointment of the post of Member (E&R) in the NCA by the Ministry of Water Resources (MoWR) was issued (Annexure R/4-5).
(17). The applicant and respondent No.4 again applied for the said post and accordingly, both of them were called to appear for interview before the Search-cum-Selection Committee chaired by the Secretary to the Government of India, Ministry of Water Resources, River Development and Ganga Rejuvenation on 14.08.2014 at 15:30 hrs. The interviews were attended by three officers including Applicant and respondent No.4. Thereafter the MoWR vide their order dated 5th December, 2014 has conveyed the approval of the competent authority i.e. Appointments Committee of the Cabinet (ACC) for the appointment of respondent No.4 (Dr. Afroz Ahmad) as Member (Environment & Rehabilitation) in the Narmada Control Authority (NCA). A copy of the office order of the Ministry is at Annexure R/4-7. In pursuance to the above, the respondent No.4 has assumed the charge of Member (Environment & Rehabilitation), Narmada Control Authority in the afternoon of 5th December, 2014 (Annexure R/4-8).
(18). The applicant, who was present in person, has argued his case very elaborately. He has submitted that he and respondent No.4 both were working at the same level in the NCA. While applicant was posted as Specialist (Environment) the respondent No.4 was posted as Impact Assessment Officer. While the applicant joined in the organization on 19.11.1990, respondent No.4 joined it on 22.3.1991 in the same rank. Thus, applicant was senior to respondent No.4, as would be evident from the provisional seniority list of cadre officers of NCA, as on 31.3.1995 filed as Annexure A-7. Respondents had amended recruitment rules of independent members of NCA vide the order dated 23.2.2007 (Annexure A-8). It was provided in these rules that officers holding posts in the scale of pay of Rs.14300-400-18300 or equivalent post with 3 years service and possessing the required qualifications and experience in the NCA shall be considered for appointment to the post of Member (Environment and Rehabilitation) in NCA and in case found fit the post shall be deemed to have been filled up by promotion. Since the post of Member (E&R) remained vacant for quite long it was treated as abolished. However, the post was recreated on 2010. The respondents also amended the recruitment rules of independent members of NCA vide order dated 28.5.2010 (A-11), which is almost repetition of 2007 rules and continued the provision of deemed promotion in case of selection of internal candidate of NCA. The respondents issued advertisement for appointment of Member (E&R) and the Search-cum-Selection Committee for appointment on deputation to the post of Member (E&R) was constituted vide order dated 1.8.2011. Within 10 days of it, the search committee conducted its meeting and approved recommendation for appointment of respondent no.4. It will be evident from its minutes (Annexure A-15) that there is unnecessary mention of vigilance angle against the applicant in order to prejudice the committee. Further there was no seniority list before the committee and since it was selecting internal candidate, and thus selection was to be considered as deemed promotion, it could not have acted without seniority list. Further, one of the Members, who was outside expert was Additional Secretary in place of Secretary, as required for the Search and Selection Committee notified for the purpose. Since applicant was senior to respondent No.4 and there was nothing against him regarding fitness for the post, as is evident from the minutes of the meeting, it was the applicant who deserved to be recommended. The applicant filed representation against his non-selection and, therefore, the respondents changed the rules regarding selection, by removing the provision of deemed promotion. Thereafter, the fresh advertisement was issued for selection and respondent No.4 was again selected for this post. However, even this time respondents are not acting as per rules as the private respondent No.4 has been posted on deputation even though he was an internal candidate. In this regard, we may observe that since the rules itself provide for appointment of internal candidate on deputation, there is no infirmity in this order.
(19). Regarding the issue of Seniority between applicant and respondent No.4, NCA has passed the order dated 8.9.2001 on representation of the applicant, in which they have rejected his representation on the following grounds:
(i) Their present designation and scale is not same as that at the time of entry to NCA.
(ii) There is no such cadre or stream as Environmental Scientists. There is a post of Director (Environment) and there is a post of Director (IA&R).
(iii) Applications were invited sometime in 1990 for four posts, Specialist (Env); Impact Assessment Officer; Director (R&R); and PRO. Dr.Pawan Kumar applied for Specialist (Env) while Dr.Afroz Ahmed applied for both Specialist (Env.) and Impact Assessment Officer. The interviews were held separately. Dr.Pawan Kumar appeared for and was appointed as Specialist (Env.). Dr.Ahmed did not appear for the interview for Specialist (Env.). He appeared for the interview for Impact Assessment Officer only, and was appointed. (All this is more than 20 years old and the position as above is based on discussions with some officers including some who are not presently in NCA. Attempts are being made to retrieve these old records and confirm the position).
(20). Since the earlier provision as stipulated in Note 4 below the provision of column 12 of the Recruitment Rules 2010, that in case officers in NCA, fulfilling the eligibility conditions, considered and found fit for the post of Member (E&R) are appointed, the post shall be deemed to have been filled up by promotion, do not form part of the revised Recruitment Rules,2013, now there is no question of promotion on the basis of seniority and, therefore, the claim of the applicant in this regard that since he was senior to respondent No.4 he should be appointed in place of respondent No. 4, holds no merit.
(21). The main issue involved in this Original Application is whether the DOPT/ACC was justified in asking for change of 2010 Recruitment Rules, particularly removing the provisions of deemed promotion in case of internal candidates as mentioned in Note 4 in Column 12 of these rules.
(22). It is observed that in Para 3 of Narmada Water Scheme it is provided that Members of NCA shall have fixed tenure of five years. Thus, if appointment to the post of Member of NCA was to be treated as promotion, removing such person after five years of tenure will result in his demotion. Therefore, the provision of treating appointment of internal candidate as Member (E&R) as promotion does not fit into the scheme of appointment of independent Member of NCA, who has fixed tenure of five years. Further since the recruitment rules were not approved by the DOPT, which is the nodal Ministry for these matters, the ACC did not approve the recommendations of Search-cum- Selection Committee, which was based on these unapproved rules of 2010. Thus, in our considered opinion the ACC has rightly not approved the recommendations of Search-cum-Selection Committee based on 2010 rules and asked for amendment of the recruitment rules. Therefore, there is no justification for directing the respondents to conduct the selection process for the post of Member(E&R) NCA in pursuance of circular dated 9.9.2010 as per prevailing 2010 Recruitment Rules, as being prayed for by the applicant.
(23). The applicant has also prayed for considering his case of appointment on the post of Member (E&R) from the year 2007. However, there is no justification for it as the 2007 rules were similar to 2010 rules having the same provision of treating appointment of internal candidate as Member (E&R) as promotion, which was objected to by ACC.
(24). The applicants prayer for regarding quashing of proceedings of the Search-cum-Selection Committee dated 11.8.2011 has no relevance as it was never approved by the ACC. Similarly, the applicants prayer for quashing of advertisement dated 23.11.2013 (Annexure A-23) for the post of Member(E&R) has no relevance at this stage as selection process has already been concluded against the said advertisement and, therefore, rejected.
(25). The applicants prayer for quashing of order dated 08.09.2011 cannot be decided in this OA as it is mentioned in the said order itself that the respondents are making attempts to retrieve old records and confirm the position. Thus, the applicant is given liberty to pursue the matter with the respondents as per rules.
(26). As regards the prayer for quashing of the impugned order dated 12.11.2013 (Annexure A-31) by which additional charge of the post of Member (E&R) was given to certain officer, since the regular selected person respondent No.4 has already joined on the post, this prayer of the applicant has become infructuous.
(27). The decision of the Honble Supreme Court in the matters of Y.V.Rangaiah Vs. J.Sreenivasa Rao and others, (1983)3 SCC 284 relied upon the applicant in the instant case is not applicable inasmuch as since earlier recruitment rules of 2010 having provision of deemed promotion were made without the approval of the DOPT and their were some discrepancies in the relevant recruitment rules. Therefore, it was directed by the competent authority to first amend the recruitment rules and thereafter conduct the selection. We may also observe that in the instant matter there was no question of promotion in a particular cadre depending upon occurrence of vacancies and filling the same as per the relevant existing rules. The instant matter relates to open selection through an open advertisement where issue of seniority in a particular cadre was not involved.
(28). The Honble Supreme Court in the matters of M.V. Thimmaiah v. UPSC, (2008) 2 SCC 119, has specifically held that normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion. In the instant case the Search-cum-selection Committee, by considering the bio-data, past ACR/APAR records and the performance in the interview held on 14.8.2014 found the respondent No.4 as most suitable amongst the three candidates for appointment to the post of Member (E&R) on deputation basis and his name was recommended accordingly.
(29). In the result, the Original Application is dismissed, however, with the observations as made in para 25 above. No costs.
18. Since in the earlier Original Application, the Tribunal has dealt with the issue of appointment of respondent No.3 in detail in terms of the Recruitment Rules,2013 and found no irregularity for the reasons as detailed in the earlier order, we do not find any further substantial ground to interfere with the said order of appointment of respondent No.3. Therefore, the relief 8(c) sought for by the applicant cannot be granted.
19. Before we may part, it is observed that as regards the claim of the applicant that he participated in the selection under protest and filed letter dated Nil (Annexure A-18) in this regard, we find that in the said letter he had only mentioned that I have filed an OA/1013 of 2013 before the Honble Central Administrative Tribunal, Jabalpur Bench on 08th Dec.2013 notices for which were issued on 23rd Dec.2013. The case is scheduled for hearing in the matters of restraining orders on 10th Feb.2014. It will not be out of place to mention that the further processing of the application for appointment shall be subject to ultimate decision in the case and without injury to my rights as per rules of recruitment of 2010 in force when vacancy occurred. Thus, in this letter or in OA No.1013/2013 he did not raise the issue of vires of the Recruitment Rules, 2013. Thus, his protest was not in regard to vires of the Recruitment Rules, 2013 and was for other issues raised by him in OA No 1013/2013. Since in the meantime the said OA No.1013/2015 has already been dismissed vide detailed order dated 5.5.2015 nothing remains in regard to his protest and thus it would be presumed that he participated in the selection without raising any issue with regard to virus of the recruitment rules.
20. Accordingly, we do not find any merit in the instant Original Application. The same deserves to be and is dismissed, however, without any order as to costs.
(G.P.Singhal) (Mrs. Manjula Das) Administrative Member Judicial Member rkv 18 Sub: challenge to vires of recruitment rules OA No.201/00350/15 Page 18 of 18