Central Administrative Tribunal - Delhi
Dr. Harbans Singh Gill vs Housing & Urban Development ... on 1 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Transferred Application No.858 of 2009 This the 1st day of February, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Dr. Harbans Singh Gill, Dy. Chief (Projects), Housing and Urban Development Corporation Ltd., HUDCO Bhawan, India Habitat Centre, Lodhi Road, New Delhi-110003. Applicant ( By Shri K. C. Mittal with Shri Rahul Goyal, Advocate ) Versus 1. Housing & Urban Development Corporation Ltd., HUDCO Bhawan, India Habitat Centre, Lodhi Road, New Delhi-110003 through its Company Secretary Shri M. K. Gupta. 2. Dr. P. S. Rana, Chairman & Managing Director, Housing & Urban Development Corporation Ltd., HUDCO Bhawan, India Habitat Centre, Lodhi Road, New Delhi-110003. 3. Shri D. Subramanyam, Executive Director (Training), HSMI, Integrated Office Complex, HUDCO House, Lodhi Road, New Delhi-110003. 4. Shri P. Jayapal, Executive Director (UIF), HUDCO, Saphalayam Complex, Third Floor, Palayam, Thiruvananthapuram, Kerala (PIN 695034). 5. Shri Malay Chatterjee, Executive Director (Works & Displsal), HUDCO, HUDCO Bhawan, India Habitat Centre, Lodi Road, New Delhi-110003. 6. Shri Savin Bhatia, 30 Double Storey, New Rajender Nagar, New Delhi-110060. 7. Shri Sunil Kumar Chaudhary, A-103, Happy Homes Apartments, Plot No.12-A, Sector-7, Dwarka, New Delhi-110075. 8. Shri S. K. Gupta, Chief HSMI, Integrated Office Complex, HUDCO House, Lodhi Road, New Delhi-110003. 9. Shri V. Thirumalavan, A-187, Pocket-B, Mayur Vihar Phase II, New Delhi-110091. 10. Shri S. Ramesh, E-6A, Block A, MCD Officers Flats, Civil Lines, 14 Rajpur Road, Delhi-110054. 11. Shri G. R. Reddy, E-101, Golden Enclave, Airport Road, Bangalore 560017. 12. Shri S. Thyarasu, C/o Housisng & Urban Development Corporation Ltd., HUDCO Bhawan, India Habitat Centre, Lodhi Road, New Delhi-110003. 13. Union of India through Secretary, Ministry of Urban Development & Poverty Alleviation, Nirman Bhawan, New Delhi-110011. 14. Chief Vigilance Commissioner, Satarkata Bhawan, INA Colony, New Delhi. Respondents ( By Shri V. K. Rao, Sr. Advocate and with him Ms. Nidhi Bisaria for Respondents 1 & 2; Mrs. Asha Jain Madan for Respondents 3 & 4; Shri A. K. Bhardwaj for Respondents 5 & 7; Shri Nikhilesh R. and Shri Shantanu Singh for Respondents 8, 9 & 11; Shri R. N. Singh for Respondent No.14, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Writ Petition (Civil) No.4010/2006 under Article 226 of the Constitution of India came to be filed before the Honble High Court of Delhi, wherein Dr. Harbans Singh Gill, holding the post of Deputy Chief (Projects) which is at E-5 level, sought a writ in the nature of certiorari so as to quash the selection process and selection and appointment of respondents 3 to 12 on the posts of Executive Director (Projects)/Chief (Projects). He also sought a writ in the nature of mandamus directing HUDCO, the first respondent, to adhere to the rules in matters of promotion and selection and to hold regular DPC twice a year against the vacancies for promotion and consider his case for the post of Executive Director/Chief (Projects). He also sought a declaration that he is eligible and entitled to be considered for the post of Executive Director (Projects)/Chief (Projects) even against the direct recruit quota as his juniors had been considered eligible for the said posts. He also sought a direction to be issued to Central Vigilance Commission to hold an enquiry into the cases of corruption and irregularities, including the present selection, and direct the Union of India to take action against respondents 1 and 2. The writ petition having remained pending in the High Court for some time, vide order dated 26.2.2009, in view of notification dated 1.12.2008 whereby HUDCO was covered by this Tribunal, the matter was transferred, and has been numbered as Transferred Application No.858 of 2009.
2. The facts on which the reliefs indicated above are sought to rest reveal that the applicant was initially appointed by HUDCO, the 1st respondent, vide letter dated 28.12.1994 as Assistant Chief (Projects), which is a post at E-4 level, under the staffing classification of the 1st respondent. He was promoted to the post of Deputy Chief (Projects), a post at E-5 level, vide order dated 19.1.2001, and is continuously working on the said level. As per the seniority list, the applicant is senior to respondents 3 and 4 in Projects Cadre. The 1st respondent framed rules for recruitment and promotion known as Housing and Urban Development Corporation Recruitment and Promotion Rules effective from 31.1.1994 (hereinafter to be referred to as the Rules of 1994). In view of provisions contained in rule 15(2) of the Rules aforesaid as regards methods and principles of promotion, it is the case of the applicant that direct recruitment is normally to be resorted to at the initial level, which is called as induction/entry level. Rule 15(1) provides that the posts in higher grades shall normally be filled by promotion of eligible employees from the feeder cadre up to the prescribed quota for departmental promotion, subject, however, to availability of posts. Rules 15(1) and 15(2) of the said Rules read as follows:
15.1. When vacancies occur in any grade, they shall be filled up by promotion of regular employees in the next lower grade on the basis of merit or seniority or both, as prescribed in these rules for the category of employees. Jumping of scales shall not be allowed.
15.2 Direct recruitment shall normally be made to the lowest grade of a cadre, called induction level. Posts in the higher grades will normally be filled by promotion of eligible employees from the feeder cadre up to the prescribed quota, subject to the availability of posts and eligible employees. In case the eligible employees are not available for higher positions, the vacancies could be filled through direct recruitment. The quota, as per rules, for departmental promotion, is 75%, whereas for direct recruitment it is 25%. The method and principles of promotion as laid down in rule 15 of the Rules of 1994, further stipulate the mode of promotion applicable to different categories of employees, which is further elaborated through rules 16.1 and 16.2 and the requirement of having vacancies as a pre-condition for promotion of employees from the feeder grade is given in rule 16.3.2. Rules 16.1, 16.2 and 16.3.2 read as follows:
16.1 Promotion to scale of Rs.5200-6875 (E-5 level) and above shall be by selection on the basis of merit.
16.2 The promotion from SE-1 level (Rs.2150-3850) to the E-4 level (Rs.4600-6790) shall be on the basis of seniority-cum-merit.
16.3.2 The qualifying period indicated in Clause 16.3.1 will only determine the eligibility of an employee for entering the consideration zone for promotion subject to availability of posts in a particular cadre and will not entitle him/her to automatic promotion as a matter of right. In the year 2000, the Board of Directors of the 1st respondent, had comprehensively reviewed the promotion guidelines applicable to its executives and issued guidelines vide office memorandum dated 4.9.2000. Through the said memorandum, the management of the respondent, with a view to make the system of promotion transparent, linked the performance rating reflected in the APARs for assessment and promotion of executives from the year 1999-2000. In the new guidelines so introduced, only those executives who fulfill the notified parameters in the OM dated 4.9.2000 would come in the zone of consideration for promotion. The OM, however, reiterates that the existing system of vacancy-based promotion and the qualifying period of four years for consideration would continue. The new guidelines further made it mandatory for holding of DPCs twice a year for employees who are fulfilling the eligibility criteria, i.e., as on 30th June and 31st December every year. The guidelines were further streamlined by the 1st respondent on number of occasions, particularly relating to filling in positions at senior management levels, i.e., Chief and Executive Directors. All these amendments have been referred to in the Transferred Application, but we shall advert to them as and when the occasion may arise in the context of the rival contentions of the learned counsel representing the parties. Amendments as referred to by the applicant, it is his case, had significant bearing on the career progression of employees coming into the zone of consideration for the senior management levels, i.e., Chief and Executive Director. These positions not only fall in the merit category but they are also strategically important. According to OM dated 4.9.2000, the qualification prescribed is a minimum period of four years service in the feeder cadre for being included in the zone of consideration for higher promotion. The OM also prescribes that DPC would be held twice a year for consideration of employees who are qualifying the eligibility criteria as on 30th June and 31st December every year for promotion. For transparency in the process of promotion, the OM prescribes that all the executives would be conveyed every year assessment of their performance on regular basis in contrast to the earlier system of communicating only the adverse or advisory entries. This system was sought to be introduced to motivate and encourage employees to sustain outstanding performance and to improve performance levels.
3. On 19.7.2005, the 1st respondent issued an advertisement in the Hindustan Times, inviting applications for appointment for the post of Executive Director/ Chief (Projects), wherein no mention was made of the number of posts required to be filled. The advertisement was silent on the mode of recruitment. It is the case of the applicant that the advertisement would have definitely been to fill up the posts in the quota of direct recruits. The post of Executive Director is of E-7 level, whereas the post of Chief (Projects) is at level E-6. In the advertisement, however, both the posts have been clubbed together and were shown equivalent, and for both the posts, same qualifications and experience have been prescribed. The specifications notified, i.e., both essential educational qualification and post qualification experience advertised for both Chief (Projects) and ED (Projects) were identical. The recruitment specifications given for the post of Chief (Projects) under Entry No.1 of Annexure-B of the Rules of 1994 has been utilized for the level of ED (Projects). It is the case of the applicant that at present there are no recruitment specifications beyond Chief level in HUDCO, and by this insertion the respondent has given undue benefit and advantage to respondents 3 and 4 who were working in E-5 level and were juniors to the applicant, thus denying him the opportunity by excluding his stream of qualification despite being senior in the cadre. It is further his case that the 1st respondent has blatantly violated the promotion guidelines notified vide OM dated 4.9.2000 and the amendments brought about subsequently for regulating promotions to senior management level. The DPC for E-6 and E-7 level in the Projects cadre was held in the month of May, 2004, and thereafter the DPC had become due on at least four occasions, i.e., as on 30th June, 2004, 31st December, 2004, 30th June, 2005 and 31st December, 2005, but was not held despite the fact that the vacancies were available in the Projects cadre for senior level, i.e., E-6 and above. In the manner aforesaid, the 1st respondent is stated to have ignored the mandate of the rules and in particular rule 15.2 of the Rules of 1994, as also the guidelines promulgated in the year 2000 for holding DPCs. The applicant who is far senior at E-5 level over respondents 3 and 4 came into the zone of consideration for promotion as on 30.6.2005 itself. The failure on the part of the 1st respondent in holding periodic DPCs, it is the case of the applicant, has severely hampered his career prospects. In view of the amendment introduced in the promotion guidelines in July, 2004, the 1st respondent had to hold DPCs taking into account the six-monthly cut-off dates and should have considered promotion of executives from retrospective dates, which would automatically mean that the vacancies which existed at the relevant cut-off dates, would have been utilized for promotion as per the prescribed quota. The 1st respondent, however, overlooked this aspect and had proceeded with the process of direct recruitment, pooling together the vacancies periodically occurred up to February, 2006, with a motive of specifically favouring respondents 3 to 5, is further the case of the applicant. It is pleaded that had the 1st respondent held DPC in time as prescribed in OM dated 4.9.2000, the applicant would have been already working in the post of Chief (Projects) since July, 2005 and would not have become junior in the cadre. The 1st respondent made four selections on the post of Chief (Projects) pursuant to the said advertisement against the total five vacancies available. Under the present system of quota, four vacancies were to be filled by departmental candidates through promotion and only one could have been filled by direct recruitment, which deprived the applicant inasmuch as, the prescribed quota of the applicant for promotion was encroached. The 2nd respondent, it is the case of the applicant, wrongfully applied the quota on the entire cadre strength of 15 posts (at E-6 level), whereas it should have been applied only on the number of vacancies actually available, and that the said respondent misled the 1st respondent in not applying any quota for recruitment in E-7 level. In the advertisement aforesaid, the 1st respondent did not indicate any specialized skill/job profile or other qualification, which would be superior to that of Chief level, despite the fact that E-7 level is available at a much higher grade compared to that of Chief level. The 1st respondent adopted the specifications prescribed for the post of Chief (Projects) even for the level of ED (Projects) and denied the rightful claim of departmental candidates in the applicable promotion quota of 75%. It is pleaded that the 2nd respondent has categorically stated that there is no quota system applicable at E-7 level, thus shutting down all doors on career growth of the departmental candidates. The 2nd respondent, it is the case of the applicant, acted in a mala fide manner in selecting respondents 3 and 4 by appointing them at ED (Projects) level which is two level above their existing level of Dy. Chief (Projects); neither of them was even eligible under the criteria stipulated under OM dated 4.9.2000, not having even the minimum four years service either on the date of advertisement or even at the time of interview, i.e., in July, 2005 and December, 2005. The 3rd respondent is stated to be junior to the applicant having only 2= years service at the time of release of the advertisement at Dy. Chief level. It is the case of the applicant that the said respondent would have entered the zone of consideration for promotion only by 31st December, 2006, and that too for the post of Chief (Projects), and that the 2nd respondent has violated all norms and in collusion with the 1st respondent, short-listed the candidature of the 3rd respondent by clandestinely adopting the direct recruitment specification. The 1st respondent never modified the number of vacancies nor regular DPC has been held as per rules, which is, as per the case set up by the applicant, to prevent the honest officers from reaching higher posts and, instead engage persons amenable to the 2nd respondent by adopting illegal and dubious methodology. It is also the case of the applicant that the selection committee was not properly constituted, inasmuch as for the post of Executive Director, the committee cannot consist of two Executive Directors of the same level post. It is also his case that as per rules, jumping of levels/scales is not permissible, and since respondents 3 and 4 are of level E-5 posts, they cannot jump to E-7 posts. The applicant then makes mention of some representations pending against some officers including the 2nd respondent, wherein serious allegations of corruption have been leveled, and that one PIL is already pending in the Honble Supreme Court and the matter is being investigated by CVC. The applicant also refers to a letter dated 31.12.2005 written by Shri Abani Roy, Member of Parliament, to the Prime Minister, pointing out not only various irregularities but also specific instances of corruption going on in the respondent Corporation. It is further the case of the applicant that insofar as E-7 level post is concerned, no qualification has been prescribed and without the Board of Directors having taken a decision to prescribe and specify the qualification and eligibility condition for posts of E-7 level, the 2nd respondent could not have prescribed and equated Executive Director with Chief (Projects) in order to give benefit to respondents 3 to 7 by slashing the minimum educational qualification for E-7 level post of Executive Director. There are some pleadings as regards favouritism shown to the 3rd respondent and some others. Inasmuch as, no arguments in that regard have been addressed during the course of arguments, there would be no need to refer to the same. Before approaching the High Court for the reliefs as mentioned above, the applicant made representations, which brought no tangible results.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter replies contested the cause of the applicant. Separate written statements, one on behalf of respondents 1 and 2, another by respondents 3 to 7 and others by respondents 8, 9, 13 and 14 have been filed. In the reply filed on behalf of respondents 1 and 2, by way of preliminary submissions it has been pleaded that the applicant has not come to this Tribunal with clean hands. It is pleaded that as per the recruitment and promotion rules of the 1st respondent Corporation, DPC meetings are to be held twice a year, subject to availability of vacancies in a particular cadre in the higher scale. However, some times DPC meetings are delayed due to administrative reasons, and in order to rationalize the date of promotion, the Board of Directors of the 1st respondent in its 347th meeting while dealing with item No.347.38 held on 19.6.2003, decided that in case delay is caused in holding DPC, where the cut-off date is taken as 31st December, promotion would be made effective from 1st January of the following year, and similarly, when the cut-off date is 30th June, the promotion would be effective from 1st July of the same year. This decision was notified to all concerned vide office memorandum dated 4.7.2003. It is further pleaded that DHC is regularly held for the employees of the 1st respondent subject to fulfillment of conditions as required under the Rules of 1994, and that the applicant despite knowing it well, has misrepresented and tried to project as if the DPC is not held as per the decision of the Board of Directors taken from time to time. The applicant, it is pleaded, claims that he is eligible and entitled to be considered for the post of Executive Director (Projects)/Chief (Projects). The applicant was appointed against the post of Sr. Fellow (at the level of Assistant Chief) advertised by the respondent for its Human Settlement Management Institute, the required qualification for which was post-graduate in economics or business economics with first division or degree in civil engineering/architecture/town planning, etc., with specialization in finance. The applicant being post-graduate in economics applied for the said post. The duties of the applicant are to impart training and research in the field of housing and urban development with focus on housing and urban infrastructure, land management or planning, construction management, environmental issues etc., and he was engaged to give services to Human Settlement Management Institute of the respondent. It is further pleaded that the applicant was promoted to the post of Dy. Chief (Projects) vide DPC held on 16.1.2001. As per rule 4.2.1 of the Rules of 1994, Project cadre as a cadre comprises of executives in the discipline of engineering, architecture, town planning, applied ecology and environmental sciences, community development and sociology. The respondent, it is then pleaded, is a techno-financial institution which is mainly dealing with focus on housing and urban infrastructure, land management financing, etc. Since the Project cadre includes number of disciplines, from time to time people are promoted/recruited keeping in view the requirement in the particular branch. It is further pleaded that the respondent required Executive Director (Projects)/Chief (Projects) to deal with its projects with the essential qualification of degree in civil engineering/architecture/town planning or equivalent. These officers were required keeping in view the present need of the respondent and its working in the field/discipline of civil engineering, architecture and town planning. The respondent as such advertised in the newspapers for the post of Executive Director (Projects)/Chief (Projects) with the above qualifications to cater to the need in the discipline of engineering, architecture and town planning which are the part of the project cadre and as such the designation was given for such post as Executive Director (Projects)/Chief (Projects). It is pleaded that the advertisement was given in accordance with rule 14.1 read with amended schedule (B), which was duly approved by the Chairman and Managing Director. The applicant who is holding masters degree in economics is stated to be lacking in necessary educational qualification, which was required for such post and as such was not entitled to apply for the same. It is further pleaded that the applicant who is working as Sr. Fellow in the grade of Dy. Chief at Human Settlement Management Institute, finding himself not suitable for the said post did not apply for the same, and there was thus no question or occasion to consider his case, and that since the applicant is lacking in basic educational qualification, he is neither eligible nor entitled to be considered for the said post. The applicant is stated to be not entitled for any relief as he has forged and fabricated the office record, and that the documents filed by him at pages 83 and 84 as part of Annexure P-8 whereby he has sought to project that he had made representations for inclusion of all project cadre specializations in the advertisement for the post of Executive Director/Chief (Projects), are forged and fabricated in order to give legs to the baseless claim of the applicant, in collusion and connivance with Shri Rajan Kumar. It is pleaded that on completion of his deputation, Shri Rajan Kumar who had come on deputation as EDT from Labour Institute, Chandigarh, was repatriated back to his parent department on 23.9.2005, and that the records had been checked and none of the documents at pages 83 and 84 were found to have been ever sent by the office of EDT to the office of Chairman-cum-Managing Director. It is pleaded that the present Application has been filed with mala fide intentions after all appointments had been made in pursuance of the advertisement published by the respondent, and that the applicant has remained silent throughout the period from the date of advertisement till the appointment of private respondents, and further that had the applicant been considering himself to be qualified enough for the said office, he could have given his representation prior to the start of the process of appointment. It is then pleaded that the applicant has sought relief on the vague allegations of corruption and irregularities in the present selection. The selection committee consisted of Chairman-cum-Managing Director, HUDCO; Joint Secretary (Housing), Ministry of Urban Employment and Poverty Alleviation; Director of HUDCO Board; Director (Finance) HUDCO; Additional Secretary, University Grants commission; Executive Director, Building Material Technology Promotion Council; Executive Director, Management System of HUDCO; and Chief HR as Secretary to the selection committee. On the basis of qualification, experience and overall performance in the interview, the selection committee recommended empanelment of Shri Sunil Kumar Chaudhary, Shri Savin Bhatia, Shri Malay Chatterjee, Dr. P. Jaypal, Dr. D. Subramanayam, Shri Rajesh Goyal and Shri Mukesh Dham for the post of Executive Director (Project) as they were holding the requisite education, qualification and experience and found suitable by the committee. Similarly for the post of Chief (Project), the committee recommend names of Shri V. Thirumavalavan , Shri S. Ramesh, Shri S. K. Gupta, Shri Gurijala Ravindra Nath Reddy, Shri S. Uthey Arasu, shri Rajesh Sharma, Shri Arun Kumar, Shri Surinder Singhai and Shri Manoj Mathur. Out of the seven whose names were recommended by the committee for the post of Executive Director (Project), five, i.e., Shri Sunil Kumar Chaudhary to Dr. Subramanayam were appointed against the requirement in order of merit. Out of nine persons recommended for the post of Chief (Projects), first four were appointed against the requirement in order of merit. It is pleaded that the entire selection process was transparent, and that the selection committee included officers of various Government departments as well as from the Ministry of Urban Employment and Poverty Alleviation, and the selection was totally on the basis of merit. The allegations of corruption and irregularities have been stoutly denied.
5. While replying on merits of the controversy, it is inter alia pleaded that since the age of retirement of employees of the 1st respondent was reduced from 60 to 58 years w.e.f. 5.6.2002, 26 officers at the level of Executive Director and Chief from various cadres have retired. There was thus need to fill up the posts. The advertisement was accordingly given, and inasmuch as, respondents 3 and 4 were fulfilling the eligibility criteria, they were short-listed and called for interview before a duly constituted selection committee, and were selected on the basis of their individual merits. It is pleaded that the applicant does not belong to the discipline for which officers were required, and that as he did not possess the requisite educational qualification, he did not apply against the posts advertised. It is denied that there is any quota prescribed at the Executive Director level, i.e., E-7 level, and that the recruitment carried out at the E-6 level in the discipline in Projects cadre is within 25% limit. The promotion policy is stated to have been amended by the 1st respondent vide memoranda dated 4.9.2000, 6.12.2001, 12.5.2003, 3.7.2003, 4.7.2003 and 31.3.2004. While admitting issuance of advertisement dated 19.7.2005, it is, however, pleaded that the same was issued for preparing empanelment of eligible selected candidates against future vacancies in order to fill up the posts created due to retirement at the senior level consequent upon reduction of age from 60 to 58 years, after completing the process of promotion of internal candidates, and that it was not required in the advertisement to declare against which quota the recruitment was proposed to be made. It is further pleaded that the recruitment rules would not prescribe any quota for the post of Executive Director at E-7 level, and that all posts of Executive Director (Projects) and Chief (Projects) were clubbed together for the purpose of recruitment in order to give flexibility to the 1st respondent to select candidates depending on qualification, nature and quality of experience of candidates with specific relevance to the business requirement of the respondent. Same qualification and experience were provided for recruitment of Executive Director (Projects) in 1995. Chairman & Managing Director of the 1st respondent is vested with powers to change and finalize the qualification and experience as prescribed in Annexure-B (Schedule) of the Rules of 1994, depending upon the need of the respondent by making suitable modifications, if required. The specification for the post of Executive Director (Projects) were first finalized in 1995 by the then Chairman & Managing Director of the respondent, and Shri Arvind Malhotra, the then Executive Director was recruited pursuant to the said advertisement. Thereafter no such recruitment was made for the post of Executive Director (Projects). Chairman & Managing Director vide order dated 24.6.2005 decided to modify Annexure-B of the Schedule to Rules of 1994 for the purpose of recruitment to the post of Executive Director (Projects)/Chief (Projects) in pursuance to the power vested with him under rule 14.1 of the Rules. Accordingly an advertisement was issued for the purpose of recruitment. It is denied that undue benefit and advantage was given to respondents 3 and 4 who were working in E-5 level. The promotion process for eligible candidates was completed on the cut-off date of December, 2003 for executives belonging to Projects cadre, and after completion of the promotion process it was decided to fill up the post in the Projects cadre through direct recruitment, and accordingly after obtaining approval from the Board, the vacancies were advertised on 19.7.2005 and the recruitment process was completed in February, 2006. It is pleaded that there is no quota prescribed for direct recruitment and promotion to fill up the post at the level of Executive Director in the Rules. However, quota is provided to fill up the post at the level of Chief in the ratio of 75:25 for promotion and direct recruitment respectively. The respondent, it is further pleaded, filled up the post at the level of Chief (Projects) specifically as per the quota provided for direct recruitment in the Rules. Executives are considered for promotion in higher scales subject to fulfilling the criteria laid down in the Rules of 1994, such as completion of four years service in the grade, obtaining 20 marks in Annual Performance Appraisal Reports and not having one poor rating and/or two average ratings in preceding four years from the date of consideration, possessing prescribed qualification, availability of vacancy in higher grade and subject to being found suitable by the DPC for promotion on the basis of service records, etc. It is not mandatory that an executive is automatically promoted to the higher scale. It is denied that direct recruitment was made pooling together the vacancies existing up to February, 2006 with the motive to favour respondents 3 to 5. The applicant, it is pleaded, was promoted on the post of Deputy Chief (Projects) on 19.1.2001 and would be considered for promotion to the post of Chief as on 30th June, 2005 in accordance with the Rules of 1994 for which promotion process was to be completed, and that he had no vested right on the date of advertisement whatsoever. The posts of Chief (Projects) and Executive Director (Projects) are selection posts and executives are being promoted subject to fulfillment of the criteria as provided in the Rules of 1994. It is then pleaded that there are total 15 sanctioned posts of Chief (Projects) at E-6 level in the respondent Corporation, and as per prescribed quota 75% posts are to be filled by promotion, whereas 25% are to be filled by direct recruitment. Accordingly, the total posts of 15 are divided as 11 for promotion and 4 for direct recruitment. The respondent has appointed four Chief (Projects). It is also the case of the respondent that an executive is not entitled for automatic promotion as a matter of right by becoming eligible after completion of prescribed years of service. The nature of experience prescribed in the advertisement was decided in terms of the power vested in Chairman and Managing Director in terms of rule 14.2.1 of the Rules of 1994. It is pleaded that the posts of Executive Director (Projects) and Chief (Projects) are senior posts below the Board level, and, therefore, the nature, quota and relevance of the experience to the business of the respondent are material facts rather than number of years of experience. The process of direct recruitment and internal promotion are stated to be different. In the process of direct recruitment, it is pleaded, the vacancies were advertised on all India basis and the qualifications for recruitment were prescribed as provided in the Rules of 1994. The applications received pursuant to the advertisement were scrutinized by a committee and list of eligible candidates was finalized. The applicant, it is further pleaded, had opportunity to apply and compete against the advertised posts subject to fulfillment of the qualification and other criteria mentioned therein. He, however, did not possess the qualification as prescribed in the advertisement. As regards jumping of levels, it is the case of the respondent that the applicant is trying to mislead the court. It is provided in rule 15 dealing with method and principles of promotion that jumping of scales shall not be allowed. The entire process was for direct recruitment wherein respondents 3 and 4 had applied and were selected by the selection committee. Jumping of levels would be only in the case of promotion. The direct recruitment is stated to be strictly as per rules. No qualification or experience is prescribed at the level of E-7 in the recruitment rules. The qualification and number of years of experience as was prescribed for recruitment of Shri Arvind Malhotra were adopted. It is pleaded that there is no requirement to take approval of the Board for prescribing the qualification and nature of experience. The appointment process and other things, it is then pleaded, were duly ratified by the Board in its 379th meeting (Item No.379.23) dated 16.5.2005. CMD of the respondent is vested with powers as per rule 14.3.1 of the Rules of 1994 to finalise nature of experience, and that the advertisement for the post of Executive Director (Projects) and Chief (Projects) was issued after approval of CMD.
6. In the reply filed on behalf of respondents 3 to 7, it is inter alia pleaded that under rules, there are two types of selections one is by promotion and the other is by selection by competition for which any citizen of India who qualifies the minimum qualifications as applicable for the posts advertised would be eligible. The employees of the 1st respondent are divided in Groups, i.e., A, B, C and D. In Group A, there are 7 levels, i.e., from SE-1 to SE-4 and SE-5 to SE-7. In view of the provisions contained in rule 16(1), promotions to scales of E-5 level and above shall be by selection on the basis of merit. In view of rule 16(2) promotions from SE-1 level to SE-4 level shall be on the basis of seniority-cum-merit. Thus, promotions applicable in the posts advertised are from level E-5 and above and based on merit. It is pleaded that the applicant does not possess the minimum qualifications for the advertised post. The applicant, it is further pleaded, has not challenged the minimum qualifications fixed by the management of the 1st respondent, and has thus accepted the same as correct, and that his only grievance is that the management has not advertised or created the posts where he would be qualified. There would be no need to further refer to the pleadings made in the reply filed on behalf of respondents 3 to 7, as the same would be in tune with the reply filed by respondents 1 and 2.
7. As nothing contained in the replies filed on behalf of other respondents has been urged during the course of arguments, there would be no need to refer to the reply filed by them, as it would unnecessarily burden the judgment.
8. The applicant has filed rejoinders to replies filed on behalf of the respondents, but once again there would be no need to refer to the contents thereof as the same are by and large reiteration of the pleadings made in the Transferred Application and nothing particularly based on the contents thereof has been urged during the course of arguments.
9. During pendency of this matter, an additional affidavit has been filed on behalf of the 1st respondent, wherein it is pleaded that the challenge as made by the applicant is primarily to the selection process, which culminated into selection/appointment of respondents 3 to 12 on the post of Executive Director (Projects)/Chief (Projects). The position as regards the said respondents is as under:
S. No. Names/Respondent No. Post on which appointed
1. Mr. D. Subramanyam (Respondent No.3) Executive Director (Projects). Probation not cleared.
2. Mr. Jayapal (Respondent No.4) Executive Director (Projects). Probation not cleared.
3. Mr. Malay Chatterjee (Respondent No.5) Executive Director (Projects). Probation cleared subject to the order to be passed in this petition. Recently selected and joined as CMD of Hindustan Steel Works Constructions Ltd.
4. Mr. Savin Bhatia (Respondent No.6) Appointed as Executive Director (Projects) but subsequently resigned.
5. Mr. Sunil Kumar Chaudhary (Respondent No.7) Appointed as Executive Director (Projects). Probation cleared subject to the orders to be passed in this petition.
6. Mr. S. K. Gupta (Respondent No.8) Appointed as Chief (Projects). Probation not cleared.
7. Mr. V. Thirumavalan (Respondent No.9) Appointed as Chief (Projects). Probation cleared subject to the orders to be passed in this petition.
8. Mr. S. Ramesh (Respondent No.10) Selected but not joined.
9. Mr. G. R. Reddy (Respondent No.11) Appointed to the post of Chief (Projects) on deputation till 31.3.2010.
10. Mr. S. Thyarasu (Respondent No.12) Selected but not joined.
Subsequent to filing of the counter affidavit, on a reference made by CVC, the vigilance department of the 1st respondent though its Chief Vigilance Officer, pursuant to investigations, submitted his report to CMD vide note dated 3.8.2007. The same has been placed on records as Annexure A-2. In the meantime, an agenda item with respect to clearance of probation/confirmation of Executive Director (Projects) was placed before the Board of the respondent, which included names of respondents 3, 4, 5, 7, 8 and 9. The Board in its meeting held on 27.2.2008 decided that an administrative decision be taken by the CMD keeping in view the comments/observations given by the vigilance wing. Before CMD gave his views on the report submitted by the vigilance department, he sought views of the Functional Directors, i.e., Director (Corporate Planning) and Director (Finance) on the report. The Directors gave their views in a joint note dated 21.7.2008, copy of which has been placed on records as Annexure A-3. CMD vide his note dated 5.9.2008 concurred with the findings of the vigilance department and insofar as, respondents 5 and 7 are concerned, it was decided to clear their probation and confirmation from due dates, whereas with regard to respondents 3 and 4, it was decided to put their cases with all factual information before the Board of the 1st respondent to obtain its views on their appointments. Accordingly, an agenda was placed before the Board in its meeting held on 12.2.2009. The Board in its meeting considered agenda item No.450.7 and advised that a specific proposal be put before it along with clear recommendations of the Functional Directors for its consideration. Pursuant to decision of the Board dated 12.2.2009, the Functional Directors approved the resolution as proposed for consideration of the Board. Accordingly, an agenda was placed before the Board in its meeting held on 26.3.2009, and while considering agenda item No.453.7, the Board advised follow-up action in the matter by the management except the one that is before the High Court of Delhi and ensure compliance in a time bound manner. After the Board meeting on 26.3.2009, a further meeting was held on 24.8.2009 wherein the issue with respect to recruitment of Executive Director (Projects) and Chief (Projects) during the year 2005-06 was placed. The Board after deliberations decided that necessary affidavit be filed in the court in a time bound manner as per the facts available on records of the 1st respondent. It was also decided that an additional affidavit be filed in the present case as well.
10. When the matter came up for hearing before us on 16.3.2010, we recorded the following order:
While making a reference to the pleadings in para 20 of the counter reply Sh. V. K. Rao, senior counsel for respondents No.1 & 2 contends that there are total 15 sanctioned posts in HUDCO of Chief (Projects) (E 6 level) and as per the prescribed quota, 75% is provided for promotion and 25% is provided for direct recruitment and that the total posts of 15, when divided, would come as 11 for promotion and 4 for direct recruitment.
From the facts as given in para 20 it would not be possible to adjudicate the issue as in addition to what has been mentioned in para 20, respondents should also have specified as to how many vacancies were occupied by direct recruits and promotees respectively at the time when advertisement at Annexure P-5 dated 19.07.2005 came into being.
When confronted with the position aforesaid, Sh. Saket Sikri, counsel for respondents No.1 & 2 seeks an adjournment enabling a responsible officer of the respondents to file an additional affidavit on the points mentioned above. The affidavit may be filed in the Court on the date fixed but a copy of the same may be given in advance to the counsel for applicant. List on 22.03.2010.
11. The 1st respondent has filed additional affidavit dated 19.3.2010, wherein it is inter alia pleaded that in the Projects cadre against total sanctioned posts of fifteen Chief (Projects), eleven (75% of total fifteen posts) are for promotion quota and four (25%) are for direct recruitment quota. On 30.6.2005, out of total fifteen sanctioned posts of Chief (Projects), there were thirteen Chief (Projects) in position and all of them were through promotion and thus there was no vacancy against the promotion quota. Further, vacancies of two Chief (Projects) were there against the direct recruitment quota on 30.6.2005. Subsequent to 30.6.2005, following four Chief (Projects) superannuated:
(i) Shri N. B. Mazumdar [Chief (Projects)] on 31.07.2005. This resulted into the total vacancy of three Chief (Projects) on 01.08.2005 against the Direct Recruitment quota.
(ii) Shri Santosh Ray [Chief (Projects)] on 31.12.2005. This resulted into into the total vacancy of four Chief (Projects) on 01.01.2006 against Direct Recruitment quota.
(iii) Shri V. Swarup [Chief (Projects)] on 31.01.2006. This resulted into the total vacancy of one Chief (Projects) against promotion quota on 01.02.2006 and four Chief (Projects) against Direct Recruitment quota on 01.02.2006.
(iv) Shri N. Dharmarajan [Chief (Projects)] on 30.04.2006. This resulted into the total vacancy of two Chief (Projects) against promotion quota on 01.05.2006. The recommendation of the selection committee for appointment in question was approved by the Board of Directors of HUDCO in its 395th meeting dated 22.2.2006 as per rule 10 of the Rules of 1994. It is also pleaded that appointments in question specially in the grade of Chief (Projects) were made against direct recruitment quota, for which advertisement was issued. The applicant, it is stated, has since been promoted to the post of Chief, i.e., E-6 grade w.e.f. 12.1.2007 vide office order dated 12.1.2007.
12. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The main challenge is to the advertisement dated 19.7.2005, which is a joint advertisement for direct recruitment for the post of Executive Director (Projects)/Chief (Projects), and the selection and appointment of respondents 3 to 12. In the written note given by the counsel for the applicant, what, however, is mentioned is that effectively, as of now the 3rd respondent Shri D. Subramanyam, the 4th respondent Shri P. Jayapal and the 7th respondent Shri Sunil Kumar Chowdhary, i.e., first two insider candidates and the third an outsider candidate, are continuing on the post of Executive Directors, and that out of respondents 3 to 7, namely, S/Shri D. Subramanyam, P. Jayapal, Malay Chatterjee, Savin Bhatia and Sunil Kumar Chowdhary, respectively, respondents 3 to 5 were internal candidates, whereas respondents 6 and 7 were outsiders, and the 5th respondent Shri Malay Chatterjee, even though joined as Executive Director, but he left the respondent Corporation in middle of 2010; the 6th respondent Shri Savin Bhatia, an outsider candidate, did join but resigned after few months, and insofar as the 7th respondent Shri Sunil Kumar Chowdhary is concerned, he is an outsider and is still continuing as Executive Director. It is in the manner aforesaid that effectively as of now, respondents 3, 4 and 7 are continuing on the post of Executive Director. The 1st respondent also, it may be recalled, has given the position of the private respondents, mention whereof we have made in paragraph 9 of this judgment. Respondents 3 to 7, it appears, were appointed on the post of Executive Director (Projects), whereas respondents 8 to 12 were appointed on the post of Chief (Projects). Respondents 3 and 4 did not clear their probation. The 5th respondent cleared his probation, but his appointment was subjected to the orders to be passed in the present Application. He, however, has since been selected and joined as CMD, Hindustan Steel Works Construction Ltd. The 6th respondent was appointed as Executive Director (Projects) but he subsequently resigned. The 7th respondent has cleared probation and his appointment has been subjected to outcome of the present application. The 8th respondent has not cleared his probation. The 9th respondent has cleared his probation and his appointment is also subjected to the orders to be passed in this Application. The 10th respondent was selected but he did not join. The 11th respondent was appointed on the post of Chief (Projects) on deputation till 31.3.2010, and is no more on the post. The 12th respondent was selected but he did not join. Virtually, therefore, the controversy as regards appointment from amongst the respondents would be only with regard to three respondents only. It also needs to be mentioned that the applicant, during pendency of the lis has been promoted to the post of Chief, i.e., E-6 level, w.e.f. 12.1.2007 vide office order of even date.
13. The advertisement and the selection of the respondents has been primarily questioned on the ground that the advertisement is in violation of the recruitment and promotion rules. As per rules the post of Executive Director falls in category E-7, whereas the post of Chief (Projects) falls in category E-6. Insofar as the post of Executive Director (E-7) is concerned, it is the case of the applicant that there is no direct recruitment quota provided, and that the quota of 75% by promotion and 25% by direct recruitment is provided only up to E-6 level, and further that direct recruitment is permissible at the lowest grade and the posts in higher grades are normally to be filled by promotion from the feeder cadre, and it is only if eligible officers may not be available that the vacancies could be filled by direct recruitment. The case of the applicant is thus that there is no direct recruitment permissible at the level of E-7 when internal candidates are available, and further jumping of scales is not permissible, whereas, by the impugned advertisement, officers junior to the applicant at the E-5 level, i.e., respondents 3 and 4 have been allowed to jump scales from the level of E-5 to E-7. The direct recruitments made to level E-7 are thus said to be contrary to the rules. The key to the answers of the questions posed by the learned counsel for the applicant, in our view, would lie in the rules, and such relevant rules as may touch upon the controversy in issue, would need a necessary mention.
14. The rules applicable, as mentioned above, are known and called as Housing & Urban Development Corporation Recruitment and Promotion Rules, which came into force with effect from 31.1.1994. The posts have been classified in rule 4. In view of provision contained in rule 4.1, the posts are classified as Groups A, B and C & D. Group A posts consist of executives from E-1 to E-7 level, E-7 being the highest level and E-1 being the lowest level. Group B posts are supervisory level executive posts, whereas Groups C & D are non-executive posts. In the present case, we are only concerned with Group A posts, which are from level E-1 to level E-7. In view of rule 4.2, the personnel of the Corporation will be classified into executive and non-executive groups, and within each group there shall be separate cadres and sub cadres (wherever specified) of personnel of different disciplines as given in the rules. The executives of the Corporation are classified into cadres, such as, projects cadre, finance cadre, human resource development cadre, law cadre, management services cadre and economics cadre, as mentioned in rule 4.2.1 to rule 4.2.6. In view of the provisions contained in rule 6, the competent authority for interpretation of any point of dispute arising out of the Rules shall be the Chairman & Managing Director. Rule 8 which prescribes quota for recruitment/promotion, reads as follows:
Posts will be filled up partly by direct recruitment and partly by promotion according to the prescribed quota given at Annexure-A. In view of rule 9, the constitution of selection committees/ departmental promotion committees shall be in accordance with guidelines prescribed therefor. Insofar as, the posts in Group A of executives are concerned, Annexure-A appended to the Rules makes a mention of posts from E-2 to E-6 levels. There is no mention in the Annexure as regards E-1 and E-7 levels. We shall deal with the posts at E-7 level later, but we may mention here that there is no mention of the posts at E-1 level, the same being the lowest in Group A posts of executives, which are to be filled only by direct recruitment. Insofar as, posts at E-2 to E-6 are concerned, whereas the prescribed quota for promotion is 75%, the one earmarked for direct recruitment is 25%. Rule 10 which deals with recommendations of the selection committee for appointments and DPC for promotions to posts in E-6 and E-7 levels, reads as follows:
The recommendations of the Selection Committee for appointments and Departmental Promotion Committee for promotions in the pay scales of Rs.6250-175-7475 (E-6 level) and Rs.7250-200-8250 (E-7 level) shall require approval of the Board before implementation. The source of recruitment is dealt with in rule 13.1 as regards Groups A and B posts. The same reads as follows:
a) Departmental Promotion;
b) Direct recruitment from the open market through advertisement;
c) Deputation from Central/State Governments, Central Public Sector Enterprises, Central or State Government Sponsored Bodies and other related specialized agencies/ institutions; and
d) Induction on a Permanent/Immediate Absorption basis from Central/State Governments, Central Public Sector Enterprises/Central or State Government Sponsored Bodies and other related specialized agencies/institutions. Methods and principles of recruitment are dealt with in rule 14. Rules 14.2 to 14.3.2 dealing with direct recruitment from outside and recruitment by deputation/permanent absorption, read as follows:
14.2 Direct Recruitment from outside 14.2.1 Applications shall be invited through advertisement in leading newspapers giving full information regarding the nature and duties of the post, pay scale, qualifications, experience, age limits, and other relevant information. For Group A and Group B posts, advertisement shall be on All India basis.
14.2.2 Existing employees of the Corporation, who fulfill the prescribed requirements, can also apply for posts advertised. Relaxation of age up to five years shall be available to the internal candidates.
14.2.3 Selection shall be made through a written competitive examination and/or an interview by a Selection Committee. The Selection Committee will draw up a panel in order of merit of selected candidates.
14.2.4 The Appointing Authority shall make appointments in the order of merit recommended by the Selection Committee.
14.3 Recruitment by Deputation/Permanent Absorption 14.3.1 For filling up any post by deputation/ permanent absorption, relevant organisations shall be approached for a panel of names giving full information regarding the nature and duties of the post, pay scale, qualifications, experience, age limits, and other relevant information.
14.3.2 The selection will be on the basis of the Confidential Rolls of the officers and also interview, if considered necessary. Vigilance clearance may be obtained from the parent department in respect of the employees joining on permanent absorption basis. Insofar as, methods and principles of promotion are concerned, the same are dealt with in rule 15. Rules 15.1 to 15.3 read as follows:
15.1 When vacancies occur in any grade they shall be filled up by promotion of regular employees in the next lower grade on the basis of merit or seniority or both, as prescribed in these rules for the category of employees. Jumping of scales shall not be allowed.
15.2 Direct recruitment shall normally be made to the lowest grade of a cadre, called induction level. Posts in the higher grades will normally be filled by promotion of eligible employees from the feeder cadre upto the prescribed quota, subject to the availability of posts and eligible employees. In case the eligible employees are not available for higher positions, the vacancies could be filled through direct recruitment.
15.3 The Appointing Authority shall make promotions in the order of merit recommended by the Departmental Promotion Committee.
Insofar as, promotion of executives to E-5 level and above is concerned, the same has to be by way of selection on the basis of merit, as per rule 16.1. Promotion from SE-1 level to E-4 level shall be on the basis of seniority-cum-fitness, as per rule 16.2. The qualifying period for promotion in executive grade will be four years service in the present grade, as per rule 16.3.1. The qualifying period indicated in rule 16.3.1 will only determine the eligibility of an employee for entering the consideration zone for promotion subject to availability of posts in the particular cadre and will not entitle him/her to automatic promotion as a matter of right, as provided in rule 16.3.2.
15. From perusal of the rules as extracted above, what clearly emerges is that Group A consists of executives from E-1 to E-7 level. Insofar as, level E-1 is concerned, the same does not find mention in Annexure-A, as surely, appointments at level E-1 have to be by way of direct recruitment, posts in the said level being lowest in the pay scales of executives. Promotions in Group A posts of executives are to be from E-2 to E-6 level only, as per Annexure-A. Quota for all posts mentioned above between promotees and direct recruits is to be 75% 25% respectively. In the present case, the concern is only as regards posts in Group A at E-6 and E-7 levels, for which a combined advertisement came to be issued. Insofar as, promotion to E-6 is concerned, the vacancies have to be filled up by promotion of regular employees in the next lower grade on the basis of merit or seniority or both, and jumping of scales shall not be allowed, as may be made out from rule 15.1 reproduced above. Direct recruitments, as mentioned above, are normally to be made to the lowest grade of a cadre at induction level, which would be E-1 level, whereas posts in the higher grades are to be normally filled by promotion of eligible employees from the feeder cadre up to prescribed quota. In case, eligible employees are not available for higher positions, the vacancies in E-2 to E-6 can be filled through direct recruitment. We find absolutely no merit in the contentions raised by counsel representing the applicant that direct recruitment could not be resorted to at level E-6. The method of recruitment up to E-6 level is both by promotion and direct recruitment, for which quota is specified. It is only when resort is made to fill up the vacancies by way of promotion that jumping of scales would not be allowed, and normally promotions are to be made from eligible employees in the feeder cadres. The rules clearly envisage appointment at E-6 level by direct recruitment, for which, as mentioned above, 25% quota is prescribed in Annexure-A. Quota both for direct recruitment and promotion is provided in rule 8, which is to be as per Annexure-A, already adverted to above. There is to be constitution of selection committee and departmental promotion committee, which would clearly suggest that there has to be direct recruitment as well, as otherwise there would be no need to constitute a selection committee. In that case constitution of departmental promotion committee only would have been required. The recommendation of the selection committee for appointment and of DPC for promotion to the posts in E-6 and E-7 levels would require approval of the Board of the Corporation before implementation, as per rule 10. The rule clearly suggests that the recommendations of the selection committee for appointment, which can be only by way of direct recruitment, would require approval of the Board. The rule covers posts at E-6 and E-7 levels. There would have been no need of accepting the recommendations of the selection committee if direct recruitment was not to be permissible for posts in E-6 and E-7. Sources of recruitment for promotion and direct recruitment have been separately prescribed. In view of rule 13.1, Group A and B posts are to be filled by both departmental promotions and direct recruitment from open market through advertisement. Method and principles of recruitment have been prescribed in rule 14. The schedule indicating posts, pay scales, qualifications, experience and age for direct recruitment to various posts is appended at Annexure-B. Rule 14.2 provides for direct recruitment from outside in Group A and B posts, for which purpose advertisement is to be issued on all India basis. As per rule 14.2.2, existing employees of the Corporation, who fulfill the prescribed requirements, can also apply for posts advertised for direct recruitment. From the reading of the rules as mentioned above, it is absolutely clear that posts at E-6 and E-7 level can well be filled up by direct recruitment, even though to the extent of 25% only, insofar as posts at E-6 level are concrened. The plea raised by the learned counsel representing the applicant that the posts at E-6 level cannot be filled by way of direct recruitment has no merit. Shri Mittal would, however, contend that if DPC was held in time, the applicant would have been promoted from E-5 to E-6 level. The DPCs indeed have not been held in time. The plea raised by Shri Mittal would, however, have substance only if promotional posts in level E-6 were available and would have been filled had the DPCs met in time to make promotions. It is in that context, when the matter came up before us on 16.3.2010, that we recorded the order reproduced in para 10 hereinabove. In the additional affidavit filed by the 1st respondent it has inter alia been pleaded that in Projects cadre against total sanctioned posts of fifteen Chief (Projects), eleven (75% of total fifteen posts) are for promotion quota and four (25%) are for direct recruitment quota. On 30.6.2005, out of total fifteen sanctioned posts of Chief (Projects), there were thirteen Chief (Projects) in position and all of them were through promotion and thus there was no vacancy against the promotion quota. It has also been pleaded that vacancies of two Chief (Projects) were there against the direct recruitment quota on 30.6.2005. Subsequent to 30.6.2005 four Chief (Projects) superannuated. Their names have been mentioned in para 11 above. This position of occupation of promotees at level E-6 is not in dispute. What thus clearly emerges is that promotees were already occupying more posts than that earmarked for them under rules, and, therefore, even if the DPCs were to be held in time, there was no question of the applicant being promoted as such appointment would have been against the quota meant for direct recruits. Even though, therefore, there may have been delay in holding DPCs, the same would be of no use and consequence to the applicant.
16. Insofar as appointment at E-7 level is concerned, there is nothing in the rules which may prohibit direct recruitment at the said level. Group A executive posts, as mentioned above, are from E-1 to E-7 level. In Annexure-A, there is no mention of posts at E-7 level. There is thus no quota prescribed for posts at E-7 level. In view of rule 10 of the Rules of 1994, selection committee and DPCs have to be constituted both for levels E-6 and E-7. The vacancy being in existence at E-7 level and in view of there being no prescribed quota meant for the said level posts, and there being provision for constitution of selection committee as well for the posts at the said level, in our considered view, it could well be filled up by direct recruitment. In fact, it appears to this Tribunal that the concerned authorities have discretion in the matter to fill the posts at E-7 level either by promotion or by direct recruitment, depending upon the requirement. There is no question of jumping the levels in the present case, as surely, the internal candidates could apply for the posts under direct recruitment, as permissible under the rules itself. Once, officers in the E-5 level who may be even junior to the applicant were eligible as per eligibility criteria provided in the advertisement, they could be selected and appointed by way of direct recruitment. It is only in case of promotion that jumping of levels is not permissible. The respondents who are internal candidates could well be appointed against E-7 level posts.
17. Insofar as, the applicant is concerned, it is admitted position that he would not have the eligibility criteria for selection by way of direct recruitment. He had thus not even applied. There are indeed some pleadings to say that the official respondents, with a view to favour the private respondents, in particular respondents 3 and 4, made advertisement in such streams which suited them, and not in the stream of the applicant, but neither during the course of arguments nor even in the written arguments submitted on behalf of the applicant, anything in that regard has been mentioned. We may, however, state that it is up to the respondents to find out as to in which stream they required the posts to be filled. It is indeed their positive case that they required the posts to be filled in the stream for which the advertisement was issued. There is no data laid down even in the pleadings as to why there was requirement for the job in which the applicant had the requisite qualifications and not the one for which the advertisement was issued. The applicant, insofar as the stream for which the advertisement was issued is concerned, was admittedly not eligible. As mentioned above, in view of the rules, personnel of the respondent Corporation are to be classified into executive and non-executive groups, and within each group there shall be separate cadres and sub cadres of personnel of different disciplines as given in the rules. The executives of the Corporation are classified into cadres such as, projects cadre, finance cadre, human resource development cadre, law cadre, management services cadre and economics cadre. The applicant belongs to economics cadre, for which there was no requirement with the respondents for the posts in E-6 and E-7 levels. The applicant was not eligible to apply for the post under contention and, as mentioned above, he actually did not apply. It was a case of direct recruitment, as already held above, and not of promotion, and in the quota of promotion, as already held above, there was no vacant post.
18. The only other plea raised by the counsel representing the applicant is that the matter of appointments made as per the advertisement came to be examined by the CVO, HUDCO on behalf of CVC, whose report has been filed in this Tribunal. The relevant portion of the report and its examination is at page 378 of the paper book. It is the case of the applicant that the position as may emerge from the said report is that the CMD could not invoke rule 14.1 for amendment of the rules for appointment to the post of Executive Director by direct recruitment, which is not permissible under the rules. At page 385 in the analysis, the CVO has categorically come to the conclusion that the Board could not sanction seven posts and further that both respondents 3 and 4 were not qualified. What appears from page 378 of the paper book is that the HRD wing of the Corporation vide its note dated 26.2.2007 had submitted point-wise comments to the queries raised by the vigilance department. The position emerging out of the reply of HRD wing has been tabulated. The points raised by the CVO were that the recruitment and promotion rules do not prescribe age, qualification, post qualification and work experience for appointment to the post of Executive Director, and further that the rules are also silent on the procedure to be followed for their appointment, and the number of sanctioned posts including the quota of direct recruitment vis-`-vis promotional appointments. The reply of the HRD wing is that the rules do not provide specifically for qualification, experience, age, quota for direct recruitment, etc. for the post of Executive Director, but in view of rule 14.1, the authority to finalize experience and qualification vests with the CMD including the modification in it. As regards the procedure for recruitment, the HRD wing commented that the same is dealt with in rule 14 comprehensively. As regards details of sanctioned posts, it is mentioned that the same is not provided in the Annexure-A for recruitment on any post, including that of Executive Director. In the third column of the table it is opined by the CVO that the reply is an attempt to justify the incorrect action in making appointments without there being any rules prescribed for making such appointments, and that rule 14.1 merely contemplates modification in the schedule of an existing provision, and since no procedure is prescribed in rules for appointment of EDs, the question of modification thereof by CMD would not arise, and that there was thus no occasion for invoking rule 14.1 by HRD wing. The CVO further opined that a wrong precedent in the case of appointment of Shri Arvind Malhotra could not legitimize continuation of a questionable practice, and that the stand taken by HRD was, therefore, untenable, and further that management should consider amending the rules expeditiously and provide a procedure for appointment of EDs, and the rules should clearly show the number of sanctioned posts and the proportion in which the posts are to be filled up by promotion/direct recruitment, and similar exercise in respect of the post of Sr. Executive Director may also be undertaken. It may be recalled that the entire matter was put up before the Board of Directors. The Board in its meeting held on 27.3.2007 decided that an administrative decision be take by the CMD keeping in view the comments/observations given by the vigilance wing. Before CMD gave his views on the report submitted by the vigilance department, he sought views of the Functional Directors, i.e., Director (Corporate Planning) and Director (Finance) on the report. The Directors gave their views in a joint note dated 21.7.2008, copy of which has been placed on records as Annexure A-3. CMD vide his note dated 5.9.2008 concurred with the findings of the vigilance department and insofar as, respondents 5 and 7 are concerned, it was decided to clear their probation and confirmation from due dates, whereas with regard to respondents 3 and 4, it was decided to put their cases with all factual information before the Board of the 1st respondent to obtain its views on their appointments. Accordingly, an agenda was placed before the Board in its meeting held on 12.2.2009. The Board in its meeting considered agenda item No.450.7 and advised that a specific proposal be put before it along with clear recommendations of the Functional Directors for its consideration. Pursuant to decision of the Board dated 12.2.2009, the Functional Directors approved the resolution as proposed for consideration of the Board. Accordingly, an agenda was placed before the Board in its meeting held on 26.3.2009, and while considering agenda item, the Board advised follow-up action in the matter by the management except the one that was before the High Court of Delhi and ensure compliance in a time bound manner. Further meeting was held on 24.8.2009 wherein the issue with respect to recruitment of Executive Director (Projects) and Chief (Projects) during the year 2005-06 was placed. The Board after deliberations decided that necessary affidavit be filed in the court in a time bound manner. We are of the view that the opinion expressed by the CVO is not sacrosanct. The same, in any case, has been taken into consideration at the highest level and nothing wrong has been found wrong in selection of the respondents. The opinion of the CVO, as reflected above, may not be the correct interpretation of rules. We have already held that once, there was no mention in Annexure-A as regards the post at E-7 level, nor the same finds mention as one of the posts on which promotion can be made, the concerned authorities could well take the decision to fill up the same either by direct recruitment or by promotion. To say that the rules need to be framed in that regard and that the rules are not there for providing definite mode of appointment on the posts at E-7 level are two entirely different things. In the context of the rules that exist, the action of the respondents in filling up the posts at E-7 level by way of direct recruitment does not appear to be in transgression of the rules. No other point has been raised in support of the Application.
19. Before we may part with this order, we may mention that in the written arguments filed on behalf of the private respondents, there is reference to some judicial precedents. A separate folder of the judicial precedents has also been given to us on conclusion of the arguments. We may only, in all fairness to the counsel representing the private respondents, mention that she has placed reliance upon following judgments on different points, but, in view of the discussion as made above, as regards interpretation of the rules, there would be no requirement of referring to the judicial precedents placed before us, as that would be unnecessarily burdening the judgment:
(1) (2007) 8 SCC 644 : Trivedi Himanshu Ghanshyambhai v Ahmedabad Municipal Corporation & others;
(2) (2001) 8 SCC 119 : Nilangshu Bhusan Basu v Deb K. Sinha & others;
(3) (2006) 8 SCC 42 : Sanjay Kumar Manjul v Chairman, UPSC & others;
(4) (2004) 9 SCC 71 : Rajasthan High Court, Jodhpur through Registrar v Babulal Arora;
(5) (1990) 1 SCC 288 : J. Rangaswamy v Government of Andhra Pradesh & others;
(6) (1978) 1 SCC 37 : Ramesh Prasad Singh v State of Bihar & others;
(7) (1993) Supp (3) SCC 9 : V. K. Sood v Secretary, Civil Aviation & others;
(8) (1973) 3 SCC 1 : Bishan Sarup Gupta v Union of India & others;
(9) JT 2005 (2) SC 165 : Prof. Yashpal & another v State of Chhatisgarh & others;
(10) 2004 (4) kar.L.J. 97 : K. Narasimha Murthy & others v Karnataka Public Service Commission, Bangalore;
(11) (1992) 3 SCC 63 : Y. Srinivasarao v J. Veeraiah & others.
20. Finding no merit in this Transferred Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/