Central Administrative Tribunal - Delhi
T.M. Sampath vs Union Of India Through The Secretary on 30 August, 2013
Central Administrative Tribunal Principal Bench OA No. 188/2012 Reserved on: 23/05/2013 Pronounced on: 30/08/2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member (A) T.M. Sampath Administrative Officer National Water Development Agency, 18-20, Community Centre, Saket, New Delhi 110 017. Applicant (Applicant in person) Versus 1. Union of India through the Secretary, Ministry of Water Resources & Ex-officio Chairman, Governing Body of NWDA, Shram Shakti Bhawan, Rafi Marg, New Delhi. 2. The Joint Secretary (Admn.) & Nodal Officer for timely conduct of DPC, Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi. 3. Shri A.B. Pandya, Director General, National Water Development Authority, 18-20, Community Centre, Saket, New Delhi 110 017. 4. Shri R.K. Jain, Chief Engineer (HQ), National Water Development Authority, 18-20, Community Centre, Saket, New Delhi 110 017. 5. Shri R.K. Kharbanda In-charge Deputy Director (Admn.) & Deputy Director (Technical) National Water Development Authority, 18-20, Community Centre, Saket, New Delhi 110 017. 6. Shri A.K. Suri, Consultant (Admn.) National Water Development Authority, 18-20, Community Centre, Saket, New Delhi 110 017. Respondents (By Advocate: Shri R.N. Singh) O R D E R By Dr. Birendra Kumar Sinha, Member (A):
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 being aggrieved with the advertisement published in the Employment News dated 17-23 December, 2011 inviting applications for filling up the post of Deputy Director (Admn.) without first considering the five applications, four for deputation and one for promotion, received from eligible candidates including the applicant in response to earlier advertisement issued in the Employment News dated 20-26 February, 2010.
2. The applicant has prayed for the following main relief(s):-
i). Direct the respondents to instantly convene the meeting of the Selection Committee for making selection to the lone post of Deputy Director (Admn.) based on the five applications received from the eligible candidates in response to the advertisement issued in the Employment News dated 20-26 February, 2010;
ii). Direct the respondent No.1 to initiate disciplinary action against respondent nos. 3 to 5 for dereliction of duty in not convening the meeting of the Selection Committee for making selection to the lone post of Deputy Director (Admn.) even after lapse of more than one year after receipt of applications from five eligible candidates including the applicant.
3. Despite the seeming bulk of the file and myriad submissions made, the matter is actually simple. The applicant is presently employed as Administrative Officer in the respondent-organization w.e.f. 23.04.2001 in the pre-revised pay scale of Rs.8000-275-13500. The applicant alleges that he is a self-confessed whistleblower, who has brought a number of irregularities in the respondent-organization. It is on this account that he has been getting continuously harassed since the year 2004 and has been made to sit out without work. The post of the Deputy Director, as per the applicant, is to be filled by promotion and only when suitable candidates are not available internally then by deputation failing which on contract basis from the open source. On 20-26 February, 2010, the respondents advertised in the Employment News inviting applications from outsiders for filling up the post of Deputy Director (Admn.) on deputation basis. In response thereto, applications were received from five eligible candidates including the applicant. The applicant alleges that the respondent no.6, a retired person and an alleged friend of the respondent no.3, was appointed as Consultant (Admn.) quite against the norms. The applicant has listed a number of instances where the respondent no.6 has misled the respondent-organization with ulterior motives. The case of the applicant is that he has been persistently asking that the rules provide for preparation of the panel of eligible candidates for every vacant post on year to year basis. However, despite several requests and representations submitted by the applicant, DPC was not convened and instead a fresh advertisement was issued. The applicant has further alleged that an illegal gratification of sufficient amount had been demanded from him and when this demand was not acceded to by him, a fresh advertisement came to be issued in the year 2011, which is impugned in this OA, by overlooking the claim of the five candidates including the applicant, who had applied against the earlier advertisement.
4. The learned counsel for the respondents confined himself to a limited number of issues. It is an admitted position that the applicant was working as Administrative Officer in the respondent-organization and had applied for the post of Deputy Director (Admn.) against the advertisement published in the Employment News in the year 2010. He was found eligible. The post of Deputy Director is to be filled up by a composite method of recruitment, meaning thereby that the eligible officers belonging to the feeder cadre, officers from outside the organization and even independent persons were entitled to apply for this post, subject to fulfilment of the requisite criteria. The learned counsel for the respondents further submitted that in case the internal candidate was found to be selected, the post would be deemed to have been filled up by promotion; where the candidate selected was from the other organization, it would be a case of deputation and otherwise on contract basis. The learned counsel appearing for the respondents further informed that the DPC was held in the year 2010 and the case of five eligible candidates including the applicant was considered. In 2011, another DPC was held wherein persons, who had applied in 2010, were also eligible to apply against the advertisement issued in the year 2011. Though the applicant did not apply against the advertisement issued in 2011, yet he was considered by the Selection Committee as an internal candidate from the feeder cadre but was not found fit to be selected. However, two persons were selected but they had declined to join. Consequently, another advertisement has been issued in the year 2013 wherein the applicant is also eligible to apply, and, if he applies for the post of Deputy Director (Admn.) in response to the recent advertisement, his name will definitely be considered by the Selection Committee. However, the learned counsel for the respondents emphasized that since no eligible candidates could be appointed, the lone post of Deputy Director (Admn.) fell under deemed abolition and, therefore, any appointment made after the selection shall be subject to revival of the said post. The learned counsel also contended that the applicant has filed four cases since the date of issue of advertisement dated 20-26 February, 2010 and all those cases were dismissed by this Tribunal. In support of his claim that the applicant is a chronic litigant, the learned counsel for the respondents has referred to the decision of the Honble High Court of Delhi in Writ Petition filed by the applicant [WP(C) No.5124/2012 decided on 08.03.2013] wherein the Honble High Court was pleased to hold: the applicant has been litigating with his department since the year 2002 an was spending most of his time in the corridors of Courts and Tribunal instead of being on his desk. Therefore, his performance would obviously be Average. The learned counsel for the respondents further argued that the applicant had impleaded all those officers of the organization who were involved in the process of selection compelling them to file their individual affidavits. Despite all these harassment, the organization bore no malice against the applicant and his case would definitely be considered in the event he applies for the post against the recent advertisement issued in this very year.
5. In his reply to the arguments, the applicant has submitted that it was a definite position of Rules that the post of the Deputy Director (Admn.) was only to be filled up from amongst the feeder cadre, to which the applicant belongs, and only when suitable internal candidates were not available, the respondents could resort to other modes of selection being the deputation and contract, as the case may be.
6. We have carefully considered the pleadings and the submissions made by both the parties and have also patiently listened to the arguments advanced by the applicant, who appears in person, and the learned counsel for the respondents. On the basis thereof, we feel that the following issues are to be decided by us:-
Whether the post of Deputy Director (Admn.) in the respondent-organization is to be filled up from amongst the feeder cadre or by a composite method, as alleged by the respondents?
Whether the conduct of the respondents is attended by any malafide on their part while dealing with the case of the applicant?
Whether the panel is required to be prepared for the vacant post on year to year basis?
Whether there is any failure on the part of the respondents in initiating the process of selection for filling up the post of Deputy Director (Admn.)?
What relief, if any, could be granted to the applicant?
7. Insofar as the Issue No.1 is concerned, it is an admitted position that the National Water Development Agency (NWDA for short)-respondent-organization is a registered Society under the Societies Registration Act, 1860 set up in July, 1982 under the Ministry of Water Resources. The status of NWDA is that of an autonomous organization under the administrative control of Ministry of Water Resources and is guided by its own Article of Association and Rules/Regulations framed thereunder. It has framed its own rules for recruitment of its employees. However, there are no separate rules governing the service condition such as seniority, procedure relating to promotion etc. which continue to be guided by those rules governing the Central Government employees. There is one sanctioned post of Deputy Director (Admn.) in NWDA in the pre-revised pay scale of Rs.8000-275-13500, which had been lying vacant since 28.12.2007.
8. The post of Deputy Director (Admn.) is admittedly a Group-A post which, as per the recruitment rules of the organization, prior to the year 2000 provided that method of recruitment would be by deputation including short term contract and period of deputation should not ordinarily exceed three years. However, as per the amendment communicated vide the O.M. of the Ministry of Water Resources dated 19.01.2000, the mode of recruitment had been changed. The amended recruitment rules now provided the mode as by deputation/promotion. Period of deputation should not ordinarily exceed three years. The provisions prior to amendment provided that:-
Column Provision
11.
Method of recruitment. Whether by direct recruitment or by promotion/transfer & % of the vacancies to be filled by the various methods.
By deputation (including short term contract). Period of deputation should not ordinarily exceed 3 years.
12. In case of recruitment by promotion/deputation/ transfer, grades from which promotion/deputation/ transfer to be made Officers under Central/ State Govts./ PSUs/ Statutory or Autonomous Organization holding analogous post or equivalent or the post of S.O./P.S. or equivalent in the scale of pay of Rs.6500-200-10500/- with not less than 6 years service in the grade. Possessing knowledge of Central Govt. Rules and Regulations and their applicability.
This clearly indicates that the mode of recruitment for the post of Deputy Director (Admn.) is a composite mode whereby officers could be appointed either by promotion or on deputation including short term contract. Thre is also a provision as to which shall be the feeder cadres for this post in the recruitment rules, which provides as follows:-
By promotion/deputation (Including Short-term Contract.
Officers under the Central/State Govt./Public Sector Undertakings/Statutory/Autonomous Organizations a(i) holding analogous post on regular basis in the parent cadre/department; or
(ii) having 5 years of regular service in the grade rendered after appointment thereto on regular basis in the pay scale of Rs.8000- 13500/- or equivalent in the parent cadre/ department; or
(iii) having 8 years of regular service in the grade rendered after appointment thereto on regular basis in the pay scale of Rs.6500- 10500 or equivalent in the parent cadre/ department in the grade; and b(i) possessing degree from a recognized University or equivalent; and
(ii) possessing knowledge of Central Government Rules and regulations and their application.
Note: (1) Departmental Administrative Officer with 5 years of regular service in the grade will also be considered and in case he is selected for appointment to the post, the same shall be deemed to have been filled up by promotion.
(2) The departmental officers in the feeder grade who are in direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion.
3. Period of deputation (Including short-term contract) including the period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organization/department of Central Government shall ordinarily not exceed three years. The Maximum age limit for appointment on deputation (Including short term contract) shall not exceed 56 years as on the closing date for receipt of applications. The recruitment rules, as quoted above, do not leave the issues under doubt as to how the recruitment is to be made.
9. In view of such clear cut provisions in the recruitment rules, we are of the opinion that the matter need not be probed any further and it stands clearly established in favour of the respondents that the mode of recruitment is composite and not by promotion alone as alleged by the applicant. We also observe that the mode of selection through an open advertisement by a duly constituted Selection Committee is transparent and as per the past practice.
10. In respect of second issue, the arguments of the applicant have already been noted earlier. In brief, the applicant is self-professed whistle blower and he is being harassed on this account. He has levelled many serious allegations against the Director General and other senior officers of the organization. His basic contention is that as he has been exposing such acts of corruption on part of the senior and middle level employees the Administration has become determined to wreck its vendetta on him and not allow him to get promoted. The applicant further contends that it is on account of such personal animus borne against him by the senior management of the respondent-organization that he has impleaded them personally. However, looking to the facts, we find that there is no evidence on record to support this contention of mala fide. It is now well established by a serious of decision of the Honble Courts that mala fide is easy to allege but difficult to prove. The Honble Supreme Court in the case of State of Punjab and Others versus Gurdial Singh & Others [1980 (2)SCC 471] has held as under:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
11. In the case of Mangal Amusement Park (P) Ltd. & Another versus State of Madhya Pradesh & Others [2012 (8) SCALE 19], the Honble Supreme Court has held as under:-
26(ii). In this connection we must note that the appellants had not joined any of those parties for whose benefit this change had been allegedly made. As held in Girias Investment (P) Ltd. vs. State of Karnataka & Ors. reported in 2008 (7) SCC 53, in the absence of factual basis, the court is precluded from going into the plea of malafides. As far as the land meant for the Children's amusement park is concerned, the same was hardly put to the full use. In as much as this entire parcel of land of about 7 acres was not utilized, and since it was an open parcel of land, there was nothing wrong in the State Government deciding to retain it as an open parcel of land, and to change the land-use thereof from commercial to a regional park. The notification cannot be faulted on that count either.
12. In another landmark decision in the matter of Burdwan Central Cooperative Bank Ltd. & Anr. versus Asim Chatterjee and Others [JT-2012(1) SC 404], Honble Supreme Court has held as under:-
18. The decision of this Court in S. Govinda Menon's case (supra), cited by Mr. Ray, also has a direct bearing on the facts of this case, where, although the Respondent No.1 was not under the administrative control of the Appellant-Bank, prior to his service with the Bank, his previous conduct was a blot on his integrity and devotion to duty as a member of the service. Since no prejudice had been caused to the Respondent No.1 by the non- supply of the Enquiry Officer's report or the second show-cause notice under Article 311(2) of the Constitution, the Respondent No.1 had little scope to contend that the principles of natural justice had been violated which had vitiated the proceedings.
19. However, there is one aspect of the matter which cannot be ignored. In B. Karunakar's case (supra), despite holding that non-supply of a copy of the report of the Inquiry Officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the inquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the inquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the concerned employee to resume his duties and to get all consequential benefits.
13. We are constrained to comment that being a self-proclaimed Ombudsman, the applicant is alleging malafide. However, malafide alleged is not the same thing as malafide proved. Here, malafide can only be interfered where the respondents have stepped beyond the limitation prescribed by law and have done something which would harm the interest of the applicant against the express provisions of rules. Drawing inference from the conclusion relating to the previous issue, that being issue no.1, we find that the conduct of the respondents-authority is not attended by any departure from the rules prescribed as their action is backed by the recruitment rules. They have duly made the advertisement and have set up a Selection Committee for appointment to the post of Deputy Director (Admn.). We fail to see any point of departure from the established procedure, despite there being provisions otherwise. Had the respondent-authorities confined to the promotion alone, they would be making departure. This issue would further be considered in relation to other issues collaterally raised. However, from our present examination, it suffices to say that there is not even a hint of any evidence attending to the conduct of the respondents in this regard. This issue is, therefore, decided against the applicant.
14. Insofar as third and fourth issues are concerned, the principle argument is that a panel is required to be prepared on year-to-year basis. However, as the applicant has been carrying a relentless crusade in exposing the corrupt practices of the officialdom in NWDA, the Management had become prejudiced and, therefore, they have not bothered to prepare the panel on year to year basis. In support of this, the applicant has relied upon a decision of the Honble Supreme Court in the matter of Union of India and Others versus N.R. Banerjee & Others [1997 (9) SCC 287]. According to the applicant para no.6 of the judgment is relevant and the same is reproduced hereunder:-
6. D. P. Cs. should be convened every year, if necessary, on a fixed date, i.e. 1st of April or May. In the middle of the para, by way of amendment brought on May 13, 1995, it postulates that very often action for holding D. P. C. meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of D. P. C. should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. Under para 3.2 the requirement of convening annual meetings of the D. P. C. should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question. It would, thus, be seen that D. P. Cs. are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalised by the appointing authorities and placed before the D. P. Cs. for consideration. This requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filled by promotion, or that no officers are due for confirmation, during the year in question. However, in the above referred case the issue before the Honble Supreme Court was that when the vacancies would arise. The controversy involved related to promotion to the post of Senior General Manager in the Indian Ordnance Factories under Indian Ordnance Factories Services Rules. Here, in the instant case, this is not the controversy. The controversy is that the promotion is the only mode of recruitment to fill up the post of Deputy Director (Admn.) failing which it could be filled up by composite method. Admittedly, the recruitment rules do not prescribe for preparation of panel on year to year basis as has been prescribed under the IAS (Appointment and Promotion) Rules, 1965, whenever it is permissible to hold a meeting of the Select Committee. Admittedly, however, the vacancy arose on 28.12.2007 and thereafter advertisements were issued in the year 2010 and 2011 in which five candidates including the applicant were short-listed. The case of the applicant is that the appointment ought to have been made from those who had applied in the year 2010. Instead, the respondents had decided to issue a second advertisement in the year 2011. However, the respondents have expressly denied this fact in their counter affidavit and have stated that there is one sanctioned post of Deputy Director (Admn.) in NWDA and is required to be filled up by composite mode of selection only. The post of Deputy Director (Admn.) has been lying vacant since 28.12.2007, consequent on the repatriation of its incumbent to his parent department. Earlier, two DPCs were conducted on 19.02.2008 and 05.11.2008 and further these two DPCs were reviewed on 22.01.2010 on the directions of the Tribunal in OA No. 85/2008 filed by the applicant.
15. It has already been noted that the applicant was considered for selection in the year 2010 but was not selected. He chose not to apply in the subsequent advertisement issued in the year 2011 but still his name was included and considered by the Management against promotion quota but he could not be found fit to be promoted. In the year 2011, two persons were selected but they chose not to join. In their counter affidavit dated 20.07.2012, the Director General, NWDA has denied that the organization is bent upon not to promote the applicant. The post of Deputy Director (Admn.) is to be filled up as per the recruitment rules in which the applicant had been given an opportunity and was considered but could not be found fit to be selected. In the sequence of events narrated above, one finds that the case has become so embroilled that though there is no mandatory requirement for preparation of panel on year to year basis as there is only one post of Deputy Director (Admn.) in NWDA, still it is desirable that the post should be filled up at the earliest instance. However, we also take note of the fact that due to frequent litigation, the matter is becoming even more complex. No recruitment took place in the year 2008 on this account. Still, we find that the respondents have been taking steps for filling up the post through selection process. The applicant has also relied upon the decision of Honble Supreme Court in the case of Syed Khalid Rizvi and Others versus Union of India and Others [1993 Supp (3) SCC 575]. In this case issue involved pertained to fixation of seniority between the direct recruited IPS officers and those temporarily promoted to the IPS cadre. The issues involved were whether the promotees have been appointed to IPS according to Rules; whether their continuous officiation in cadre posts would ensure to their seniority entitling to the year of allotment from the dates of their initial promotions; whether their inclusion in the select-list and the computation of seniority from that date are conditions of service; and whether the facts would justify to draw the presumption of deemed relaxation of relevant rules by Rule 3 of the Residuary Rules? In the instant case the issue involved is different. As stated earlier, the post in question in the instant matter is a single post and the question to be decided is whether it could be filled up by promotion or by a composite mode of recruitment. Hence, the above judgment relied upon by the applicant is not applicable to the facts of this case. However, it is to be noted that in the same very judgment, the Honble Supreme Court has held that though a person may not have a right to promotion but he has a fundamental right to be considered for promotion. The applicant in the instant case has been duly considered for promotion but could not get selected. Therefore, the judgment in Syed Khalid Rizvi and Others versus Union of India and Others (supra) is not attracted on this count as well.
16. In conclusion, we have seen that the issues have been decided consistently against the applicant. In this regard, we also take note of the arguments of the learned counsel for the respondents that the applicant has filed a large number of Original Applications, most of the references whereof have been given in the counter affidavit. He has also drawn the attention of this Tribunal to the decision of Honble High Court in WP(C) No.5124/2012 filed by the applicant wherein the Honble High Court has held as under:-
1. The petitioner appears to be spending his time in the corridors of the Central Administrative Tribunal as also the Delhi High Court evidenced by the fact he has embroiled his department, National Water Development Agency in as many as 16 writ petitions and 9 litigations before the Central Administrative Tribunal. The writ petitions filed by him are: W.P.(C) No.7662/2002, W.P.(C) No.4385/2003, W.P.(C) No.6972/2003, W.P.(C) No.488/2004, W.P.(C) No.2220/2005, W.P.(C) No.3629/ 2005, W.P.(C) No.14074/ 2006, WP(C)No.2644/2007, WP(C) No.5981/ 2007, WP(C)No.7509/2008, WP(C) No.7745/ 2008, WP(C) No.186/2009, WP(C) No. 8052/ 2009, WP(C) No.8645/2009, WP(C) No.9083/ 2009 and W.P.(C) No.9099/2009. The Original Applications filed by him before the Tribunal are: OA Nos.639/2008, 2037/2008, 2141/2008, 2504/2008, 58/2009, 85/2009, 251/2009, 405/2009 and 599/2009. Instant writ petition is the 17th in number.
15. We are noting as aforesaid to highlight the fact that the petitioner who has been litigating with his department since the year 2002 seems to be spending his time in the corridors of Court rather than on his desk. It is but obvious that petitioners performance would be Average. In these circumstances, as narrated above, we decide this issue against the applicant.
17. Since this is not one of the issues under consideration, we have not discussed the conduct of the applicant in detail. However, the fact remains that the respondent-organization has been making efforts to get the lone post of Deputy Director (Admn.) filled up. The respondents have also been more generous towards the applicant, despite having filed a huge number of cases against them, by considering his name even when he had not applied for selection to the post of Deputy Director (Admn.) in the year 2011. We, therefore, hold unequivocally that this Original Application has become infructuous upon issuance of a fresh advertisement in the year 2013 in which the learned counsel for the respondents submitted that the applicant would be considered once again if he chooses to apply.
18. In totality of facts and circumstances of the case and in view of our above discussion, we hold that the Original Application is devoid of any merit and the same is accordingly dismissed without there being any order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
/naresh/