Central Administrative Tribunal - Delhi
Vijay Srivastava vs National Highway Authority Of India on 5 February, 2014
.Central Administrative Tribunal
Principal Bench
OA No.1567/2010
Reserved on : 07.01.2014
Pronounced on: 05.02.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. Birendra Kumar Sinha, Member (A)
Vijay Srivastava
General Manager (Technical)
National Highway Authority of India
A-7, VIP Estate
Shankar Nagar
Raipur (Chhattisgarh) . Applicant.
(By Advocate : Sh. K. K. Rai, Sr. Advocate with Sh. R. N. Singh and
Ms. Sangita Rai)
Versus
1. National Highway Authority of India
Through its Chairman
G-5 & 6, Sector 10
Dwarka
New Delhi.
2. Shri Lambodar Prasad Padhey
General Manager (T)
National Highway Authority of India
G-5 & 6, Sector 10
Dwarka
New Delhi.
3. Shri Ashutosh Gautam
General Manager (T)
National Highway Authority of India
P.I.U. Lucknow
1/73G, Vinnet Khand
Gomti Nagar
Lucknow (U.P.)
4. Shri Chander Kumar Sinha
General Manager (T)
National Highway Authority of India
P.I.U., B-1, Agam, Raw House
Opp. Sakar Apartment,
Behind ICICI Bank,
City Light, Surat
Gujarat.
5. Shri Ravi Bhushan Sinha
General Manger (T)
National Highway Authority of India
G-5 & 6, Sector 10
Dwarka, New Delhi.
6. Shri Avadhesh Kumar Singh
General Manager (T)
National Highway Authority of India
G-5 & 6, Sector 10
Dwarka
New Delhi.
7. Lt. Col Kushwant Singh
General Manager (T)
National Highway Authority of India
PIU, Gayatri Complex
Opp. Gayatri Temple , NH-14
Palanpur, Gujarat.
8. Shri. P.K. Das
General Manager (T)
National Highway Authority of India
G-5 & 6, Sector 10
Dwaraka, New Delhi,
9. Shri Gautam Das
General Manger (T)
National Highway Authority of India
G-5 & 6, Sector 10
Dwarka
New Delhi.
10. Col. M.K. Jain
General Manager (T)
National Highway Authority of India
PIU, House No.5
Sector 7, Trikuta nagar
Jammu (J&K)
11. Lt. Col. Chandan Vatsa
General Manager (T)
National Highway Authority of India
G-5 & 6, Sector 10
Dwarka
New Delhi.
12. Shri Vishal Gupta
General Manager (T)
National Highway Authority of India
G-5 &6, Sector 10
Dwarka
New Delhi
13. Col. Rajat Rastogi
General Manager (T)
National Highway Authority of India
CMI, 17-L, Model Town
Ambala City.
Haryana.
14. Shri A.K. Mishra
General Manager (T)
National Highway Authority of India
G-5 & 6, Sector 10
Dwarka
New Delhi.
15. Lt. Col. P.K. Lohumi
General manger (T)
National Highway Authority of India
Village Rithola Jn. At KM 213 of NH-76
Chittorgarh
Rajasthan.
16. Mr. M.K. Jain
General Manager (T)
National Highway Authority of India
PIU, House No.5, Lane 4
Sector 4, Teg Bahadur Road
Dehradun
Uttrakhand.
17. Mr. M. Chandrashekhar
General manager (T)
National Highway Authority of India
G-5 & 6, Sector 10
Dwarka
New Delhi. . Respondents.
(By Advocate : Sh. Jos Chiramel, Ms. Amrita Maharana with Mr. Anant
Raghuvanshi counsel for Respondent No.1.
Sh. A. K. Behera counsel for Respondent Nos.2,3,4,12 & 16.
Ms. Jyoti Singh, Sr. Advocate with Sh. Rajiv Manglik counsel
for Respondent Nos.7, 10, 11, 13 and 14).
: O R D E R :
Dr. B. K. Sinha, Member (A) :
This Application under Section 19 of the Administrative Tribunals Act, 1985 is preferred against the Office Order dated 5.06.2009, promoting the applicant to the post of General Manager (Technical) in the pay scale of Rs.14,300-400-18,300 (Pre-revised) with effect from 01.05.2008, the Draft Seniority List Circular placing the applicant at Sl. No.13 above one Shri A. K. Mishra but below 12 other officers and OM dated 9.10.2009 containing a Draft Seniority List Circular of GM Technicals as on 7.10.2009 placing the applicant at Sl. No.1 above one Sh. Lambodar Prasad Padhy.
2. The case of the applicant in brief is that he was appointed as Manager (Finance and Accounts) with the respondents, that being the National Highways Authority of India under the due process of open source recruitment in August, 1998. The applicant was promoted as Deputy General Manager in May, 2002 and was posted at Jalandhar where he faced departmental enquiry under Regulation No.17 of the National Highways Authority of India (Conduct, Discipline and Appeal) Regulation 1997, as an outcome of which he was awarded penalty of withholding of one increment of his pay for a period of two years without cumulative effect vide order dated 8.03.2006 (Annexure A-2). The applicant unsuccessfully contested his order of punishment before the Appellate Authority his appeal dismissed vide order dated 15.05.2007 (Annexure A-6). On 7.10.2009, the respondent organization circulated a draft seniority list wherein S/shri Ashutosh Gutam, Awadhesh Kumar Singh, Ravi Bhushan Singh, Chandan Kumar Sinha, Lambodar Prasad Padhy figured as senior to the applicant whereas in 2002 promotion list they had been junior to him.
3. In the meantime, one Shri Rajesh Gupta challenged the meeting of the DPC held in the year 2004, 2005 & 2006 wherein promotion of the applicant in OA No.572/2008 had been overlooked. A Division Bench of this Tribunal considered the matter and arrived at a finding dated 29.09.2008 that the proceedings of the selection committee dated 3.09.2004, 21.11.2006 and 8.06.2007 suffered several infirmities and irregularities, especially with regard to the Constitution of the Committees as well as on account of violation of the statutory Regulations of 1996 with regard to requirements of 12 years experience related to major infrastructural projects contained in the Regulations. The Tribunal set aside the recommendations of the Selection Committees as the same had been rendered void ab initio including the consequences flowing therefrom. The respondents organization against the Tribunals order in OA No.572/2008 filed a writ application vide WP (C) No.617 of 2009 wherein the order of the Tribunal dated 29.09.2008 was upheld. The case of the applicant in nut shell is that he was considered by the Selection Committee in its meeting on 1.02.2008, wherein he figured at Sl. No.32 and was graded C pending vigilance clearance. The applicant was finally promoted w.e.f. 1.05.2008. He submitted several representations seeking inter alia promotion w.e.f. March 2006 and parity with the case of Rajesh Gupta-applicant in OA No.572/2008 who had been given promotion to the post of Deputy General Manager (Finance) w.e.f. the year 2004 along with one Shri P. K. Aggarwal, when they became eligible for promotion irrespective of the recommendations/result of the selection committee at that point of time. Such representations were submitted vide his communications dated 2.2.2008, 10.03.2008, 14.05.2008, 26.10.2009, 22.01.2010 and 07.05.2010. The applicant has also questioned the appointment of one Pravin Kumar Das for ad hoc appointment on absorption basis vide order dated 26.02.2010. The applicant submitted that he has been illegally not permitted to appear before the Selection Committee meeting held on 9.03.2006, 20.11.2006, 12.07.2007 and 01.02.2008, whereas as per NHAI (Conduct, Discipline and Appeal) Regulations 1997, his punishment has been given taken effect to.
4. The applicant has urged the following grounds for his appeal.
4.1 The first ground that has been urged by the applicant is that the order of the Tribunal in OA No.572/2008 as upheld by the Honble High Court vide its judgment dated 3.07.2009 wherein it has been held that the selection committee had been illegally constituted and fresh committee should be constituted in accordance with law and fresh appointments be made. The contention of the applicant is that this direction has been implemented only qua the posts mentioned in the order and the other selection committees during the same period were allowed to stand which had been similarly illegally constituted but which did not figure in the OA.
4.2 In the second place, the applicant has questioned the appointments of Respondent Nos. 7 to 11 as having been made in violation of the law and contrary to the provisions of the NHAI (Conduct, Discipline and Appeal) Regulations 1997. Regulation 12 (2) of which provided for two channels of appointment viz. by promotion or by deputation. The Honble High Court has held in its order dated 3.07.2009 that the persons who were appointed vide order dated 26.02.2010 which includes the requirement of having a separate promotion channel, was not found to have been followed in that particular case.
4.3 The third ground adopted by the applicant is that Regulation 13 provides for two kinds of penalties- minor and major, wherein, (f) withholding of increment or promotion has also been provided. The applicant argues that the respondents have imposed on him a minor penalty of withholding of one increment without cumulative effect. However, the action of the respondents in denying promotion to him by not allowing him to appear before the Selection Committee amounts inflicting of two punishments in terms of the aforecited clause. Since the applicant has already undergone one punishment of withholding of one increment, the second order of punishment could not have been inflicted upon him.
4.4 In the 4th place, the applicant has challenged the corrigendum to the order dated 7.10.2009 circulating a draft seniority list for various posts including that of General Manager (Tech.) whereby Respondent Nos.6 to 11, junior to him, have been placed over his head. The applicant has represented against this draft seniority list on 26.10.2009 without having evoked any reply to the same.
5. On the basis of the above arguments, the applicant has sought the following reliefs:-
(a) hold that the Applicant having been inflicted the penalty of withholding of one increment vide order dated 8.3.2006 cannot be inflicted with the second penalty for the same offence of withholding of promotion, especially in view of Regulation 13 of the National Highway Authority of India (Conduct, Discipline and Appeal) Regulations, 1997;
(b) the order dated 5th June, 2009, be modified to give promotion to the Applicant with effect from June 2006 (and not 1.5.2008) when his juniors were promoted, since the Applicant who was fully qualified but was not appointed only because of the penalty of withholding of one increment for two years;
(c) set aside the provisional seniority list dated 7.10.2009 and corrigendum dated 9.10.2009 and direct preparation of a fresh seniority list in accordance with law and in terms of the directions of this Honble Tribunal;
(d) set aside appointments of Respondent Nos. 12 to 17 made in the years 2005, 2006 and 2007 in view of the Selection Committees not having been properly constituted in accordance with Regulation 11 (3) of the National Highway Authority of India (Regulation, Seniority and Promotion) Regulations, 1996 and because the appointed persons did not have the desired experience as stipulated under the Schedule to the aforesaid Regulations for the post of General Manager (Technical), in view of the judgment of this Hoble Tribunal dated July 23, 2009 in OA No.572 of 2008 and as upheld by the Honble High Court vide order dated 3.7.2009 in Civil Write Petition No. 617 of 2009;
(e) direct that fresh selection process be initiated for appointments to the post of General Manager (Technical) for the years 2005, 2006 and 2007 after constituting Section Committees in accordance with law and after giving due regard to experience etc. as stipulated under the Regulations;
(f) hold that Respondent Nos. 7 to 11, namely, Lt. Col Kushwant Singh, Shri P.K. Das, Shri Gautam Das, Col. M.K. Jain and Lt. Col. Chandan Vatsa respectively has been illegally appointed vide order dated 26.2.2010 and in any event they can be given seniority only from the date of their appointment on 26.2.2010 and not from the date of their appointment on deputation basis illegally through illegal Selection Committees in earlier years; and
(g) any other relief which this Honble Tribunal thanks just and appropriate in the facts and circumstances of the case; and
(h) costs of the present application may be awarded to the applicant;
6. The respondents have filed their counter affidavit in different lots/groups. The respondent No.1 in his counter affidavit has strongly resisted the OA on the following grounds:-
6.1 In the first instance, the Respondent No.1 has refuted the argument of multiple punishment or double jeopardy advanced by the applicant. He submits that though on a plain reading of Regulation 13 of NHAI (Conduct, Discipline & Appeal) Regulations, 1997, it does appear on face of it that there is merit in the argument of the applicant, these regulations were subsequently amended in the year 1997 and the Residuary maters continue to rest with the CCS (CCA) Rules, 1965. However, there is a clear distinction between withholding of promotion and postponement of promotion/keeping the promotion in abeyance as provided in DOP&T OM dated 15.05.1971.
6.2 The respondent No.1 has also strongly rebutted the contention of the applicant regarding improper constitution of the selection committee on the ground that there is no post of Assistant Director General in the Ministry of Road Transport at any given time and the Chief Engineer who was nominated by the Director General in the selection committee was senior to the supposed Assistant Director General. Therefore, no parity could be drawn with the case of Rajesh Gutpa as the later along with one Sh. P. K. Aggarwal was given promotion as consequence of recommendations of the review DPC. Moreover, the Selection Committee by which the applicant had been appointed was also similar in constitution which he seeks to challenge. The appointment of the applicant himself or his promotion as Deputy General Manager (Technical) would be rendered void ab initio and non est by an extension of the same logic. The answering respondent has also referred to para 27 of the order of judgment of Honble High Court dated 3.07.2009, wherein, the Honble High Court has agreed with the argument advanced that the impugned order would set aside a large number of appointments in terrorem and has restricted the effect of the order to the facts of this case alone. The Learned counsel for the respondent No.1 has also submitted that the Application is barred by the law of limitation as the applicant seeks to challenge the proceedings of the selection committee held in 2005, 2006 & 2007, even considering the fact that the respondent organization NHAI was inducted within the ambits of Section 14 of the Administrative Tribunals Act, 1985, the Application should have been filed well within 2009. The OA is also not accompanied by any Application for condonation of delay.
6.3 Coming to the issue of seniority, the respondent No.1 submits that since the applicant was not entitled to be promoted in the years 2005, 2006 & 2007 he has been rightly promoted w.e.f. May 1st, 2008. In the meantime, the respondents though admittedly junior in joining have become promoted as they suffered no such disabilities and are senior to him in the rank of General Manager. Further there was no illegality or irregularity in the appointment of Respondent Nos.13 to 17 as they had been inducted under the existing rules on deputation on ad hoc basis. Subsequently, in order to build up their own cadre an opportunity was given to the respondents and their services were absorbed in the host organization. As per NHAI Notification dated 25.11.2009, the process of recruitment for increasing permanent cadre strengths is to be in order of promotion, absorption and lateral entry i.e. if eligible candidates are not available for promotion, absorption have to be undertaken and once the eligible candidates for absorption have exhausted, lateral entry would also resorted to. The answering respondent had vehemently denied that the decision of the selection committee dated 25.02.2010 and consequent ad hoc appointments of Respondent No. 7 to 11 vide order dated 26.02.2010 is illegal or there is any irregularity.
6.4 The respondent No.1 has also submitted that the relief claimed by the applicant is in violation of Rule 10 of the CAT (Procedure) Rules, 1987, as per which, there could be only one principal relief and other items of relief should flow from them. Instead, the applicant has sought unrelated items of relief and has selectively directed his attack. For instance, in respect of relief (b), the applicant has selectively assailed the proceedings of the selection committee dated 5.06.2009 whereby he himself had been promoted. In respect of respondents Nos. 7 to 11 alone, he selectively attack the recommendations of the selection committee dated 1.02.2008.
6.5 Respondent Nos.7, 10, 11 & 13 have filed their counter affidavit separately wherein they have fully supported the counter affidavit filed by Respondent No.1. Additionally, it has been submitted that the Application is premature as the applicant is challenging the seniority of Respondent Nos.7 to 11 and 12 to 17 as General Manager (Tech) whereas their position above the applicant is concerned, the impugned seniority list dated 7.10.2009 continues to be in a draft stage. Moreover, the applicant has challenged the appointments made in the year 2005 whereas he himself was not eligible for appointment in the year 2005 and thus he becomes a 3rd party and, therefore, he has no right to challenge the same. It has also been submitted that the respondent Nos.7 to 11 have nothing to do with the punishment meted out to the applicant. They also resisted the averment made by the applicant that different yardsticks have been adopted for giving promotion. The answering respondents were appointed on ad hoc basis on the basis of ACRs whereas in the case of promotion the marks for interview were awarded. The applicant was appointed as GM (Tech) on promotion from DGM (Tech) whereas the respondent Nos.7 to 11 were working as GM (Tech) on deputation and were absorbed as GM (Tech) in terms of Regulation 13 by the Selection Committee on the basis of their performance of two years which could have only be assessed by the ACRs earned during this period. The respondents have further questioned the averments of the applicant that he was unaware of the proceedings and the same were obtained through the RTI Application as the details of the Application have not been available at anywhere. The answering respondents have admitted that the appointments made in the year 2005, 2006 & 2007 cannot be termed as illegal appointment but at most could have been termed as irregular appointment and can be regularized in light of the judgment given by the Honble Supreme Court in Municipal Corporation, Jabalpur vs. Om Prakash Dubey AIR 2007 SC 893, wherein in para 11, their Lordships have held as under:-
11. The question which, thus, arises for consideration, would be: Is there any distinction between irregular appointment and illegal appointment? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to. 6.6. The Respondent No.14 has filed a separate counter affidavit fully supporting the arguments of the Respondent No.1 and Respondent Nos.7, 10, 11 & 13 in respect of plural remedy, limitation, the OA being premature, the applicant being 3rd party and in respect of the arguments on merit. He further relied upon the case of Madan Lal vs. State of J&K AIR 1995 SC 1088 and that of K. A. Nagamani vs. Indian Airlines & Ors. AIR 2009 SC 3240 that having been participated in the selection process the applicant now cannot turn about and challenge the same as being illegal.
6.7. Another counter reply has been filed on behalf of Respondent No.2 Lambodar Prasad Padhey and Respondent No.12 Vishal Gupta, wherein, they have supported the counter reply filed by other respondents in respect of limitation, the OA being premature, multiple relief and on merit. The answering respondents further submit that admittedly the names of Respondent Nos.2 & 6 are recommended in order of merit in the minutes of the Selection Committee dated 1.02.2008 and the name of the applicant was shown with lower marks than the Respondent Nos.2 to 5 with further remark that the vigilance clearance is pending. The applicant has not disputed anywhere that the Respondent Nos.2 to 5 have secured higher marks than him whereas the applicant has secured the same marks as that of Respondent No.6. However, Respondent No.6 was placed above the applicant as he was clear from the vigilance angle. As per Rule 15 (2) of NHAI (Recruitment, Seniority and Promotion) Regulations 1996 seniority is to be fixed in the order as recommended by the Selection Committee. The Answering Respondent Nos.2 & 12 have further submitted that in the draft seniority list circulated vide letter dated 7.10.2009, Respondent No.12 is appearing at Sl. No.7 whereas the applicant appears at Sl. No.13. There was no selection for the permanent cadre between 7.07.2005 and 18.02.2008 for the post of GM(Tech) except that of Respondent No.12 who was selected on 26.11.2006. The applicant was selected as GM (Techl) w.e.f. 1.05.2008 along with the next batch of Respondent No.12 who was promoted on 18.02.2008. There was a delay of 73 days (18.02.2008 to 1.05.2008) in promotion of the applicant due to ongoing minor penalty on the applicant in a disciplinary case. As all the promotions are subject to vigilance angle, the applicant was promoted as soon as he was given vigilance clearance and, therefore, there is no infirmity in the order.
6.8 The answering respondents 2 & 12 further submit that Respondent No.12 was selected by Selection Committee meeting held on 20.11.2006 in which the applicant also appeared but was not selected as he could not secure above the cut off marks. The answering respondents have also submitted a Chart to denote the merit of the applicant and that of Respondent Nos.2,3,4 & 5 who have scored higher marks than the applicant. He has further submitted that the applicant was not a candidate in the year 2005 selection and hence he has no locus standi.
7. The applicant has filed his rejoinder separately to the counter affidavits to the reply of Respondent No.1, Respondent Nos.7, 10, 11 & 13 and Respondent Nos.2 & 12. The applicant submits that the Respondent No.1 has admitted in his counter affidavit that the applicant is correct in his averment that he cannot be given more than one minor penalty for the same misconduct which amounts to double jeopardy. His principal argument is that his promotion cannot be given effect to during the pendency of the punishment but once it has been served out there is nothing to stipulate that the employee cannot be given the promotion from the date it is due. The penalty was imposed on 8.03.2006 and expired on 8.03.2008. The order of promotion promoting the applicant to the post of General Manager was issued on 5.06.2009. All that the respondents organization could have done was to held in abeyance the promotion of the applicant from the year 2006 when the juniors to the applicant were given promotion. The applicant should be restored to his original place of seniority once the effect of the date of promotion is exhausted. The applicant has further sought to emphasie that the selection committee met on 28.05.2005, 9.03.2006, 20.11.2006 and 12.07.2007 were contrary to Regulation 11 (3) of the NHAI (Recruitment, Seniority and Promotion) Regulation, 1996 and the Tribunal had found it so vide its order dated 29.09.2008. The same was challenged by the Respondent No.1 before the Honble High Court, wherein the writ petition was dismissed with an observation that NHAI had to put its house in order by following the procedure as laid down in the Regulations or else it is supposed to take remedial measures to cater to the ground realities.
8. On the ground of limitation, the applicant has submitted that since the constitution of the Committee was itself contrary to the regulations it could be pursued at any point of time. The fact that the said committees were illegally constituted was known only after the judgment of the Honble High Court dated 3.07.2009 and as the same had never been disclosed by the official respondents, nor could it be ascertained even during the interview that who were the persons conducting the interview, hence, there is delay on part of the respondents.
9. The applicant has further submitted in his rejoinder application that no legal precedent could be drawn from the case of Rajesh Gupta vs. NHAI & Ors. [OA No.572/2008 decided on 29.09.2008] as he was not a party to the proceeding and the effect of the judgment had been exclusively confined, however, a judgment of the Honble High Court is equally binding upon the parties and that cannot be denied. On the issue of illegality of the appointments of Respondent Nos.7 to 11, the applicant reiterates that a bare perusal of the Regulation 13 of the NHAI (Conduct, Discipline and Appeal) Regulations, 1997 makes it clear that there is no provision for any ad hoc appointment in the said Regulation. Sub-clause (4) of Regulation 13 clearly provides the process of recruitment for increasing the permanent cadre strength to be in order of promotion, absorption and lateral entry. Before increasing the permanent cadre strength, the strength of the feeder cadre will have to be enhanced so that the career progression opportunities are not blocked for promotion cadres and that it does not lead to structural imbalance. The applicant alleges that the Respondent No.1 has himself recorded all rules for favouring the Respondent Nos.7 to 11, some of whom were about to retire. The applicant has further alleged that Respondent No.1 had arbitrarily introduced marks for promotion of internal candidate while the respondents were illegally absorbed on the basis of ACRs so as to able to interchange their seniority. Such practice is contrary to the settled position in Government of India where only benchmark is to be attained. In the meeting dated 12.07.2007, only 5 candidates all belonging to the army background have been selected to the post of General Manager by giving them higher marks whereas other eligible candidates working on regular basis for the last several years with technical experience and expertise were excluded from the selection by giving lower marks.
10. In his rejoinder to the counter affidavit of Respondent Nos.7, 10, 11 & 13, the applicant has paraphrased his reply on the preliminary objections and has more or less restated the averments made in his earlier rejoinder. The rejoinder to the reply filed on behalf of Respondent No.14 is again a reiteration of his rejoinder to the counter affidavit of Respondent No.2 & 12.
11. We have heard the learned counsel appearing for all the parties. During the course of argument, learned counsel for the applicant withdrew his claim in respect of the Selection Committee meeting held in the year 2005. Hence, it needs not to be considered. The arguments of the parties by and large followed the pleadings and their written submissions, which we have carefully considered. On the basis thereof, we find that the outcome of the instant case is mainly related to a resolution of some legal issues. The facts of the case being admitted by both the parties, the basic legal issues are as follows:-
1. Whether the OA is barred by law of limitation?
2. Whether the OA is hit by Rule 10 of the CAT (Procedure) Rules, 1987?
3. Whether the OA is premature?
4. Whether the case of the applicant is covered by the doctrine of double jeopardy inasmuch as he could have been awarded only one punishment?
5. Whether the Selection Committee in the years 2006 & 2007 was illegally constituted and that they are covered by the decision in OA No.572/2008?
6. Whether the seniority assigned to the Respondent Nos.2 to 6 over the applicant has been incorrectly done and that the applicant should have been restored to his original appointment and seniority on his promotion?
7. Whether the ad hoc promotion and absorption of Respondent Nos. 7 to 11 has been incorrectly given against the provisions of NHAI Recruitment, Appointment and Absorption Regulations?
8. What relief, if any, could be given to the applicant?
Issue No.1
12. Insofar as the first issue is concerned, admittedly it is a fact that the cause of action of the applicant had arisen in respect of the proceedings of the selection committees held in the years 2005, 2006 & 2007. Though the organization was brought within the ambits of this Tribunal only on 01.08.2007 under Section 14 (2) of the Administrative Tribunals Act, 1985, there were other courses open to the applicant to have agitated his grievances. He could have come to this Tribunal after 2007. Against any of these years, he could have been entertained on the same lines as in the case of Rajesh Gupta (supra). Instead, the applicant waited till he got his promotion vide the impugned order dated 5.06.2009 w.e.f. 1.05.2008. It is then that he has come to this Tribunal. The argument advanced by the respondents that he has been a fence sitter who has jumped into the fray after the judgment has been delivered by the Honble High Court in WP (C) No.617/2009 appears to hold some substance. It is also to be taken into account that the applicant had accepted his promotion to GM (Technical) w.e.f. 1.05.2008 without any protest. Thereafter, he has acquiesced to this promotion. On the other hand, the applicant in his rejoinder to the counter of Respondent Nos.2 & 12 has submitted that he came to know that the committees had been illegally constituted only after the order of the Tribunal in OA No.572/2008 and the judgment of the Delhi High Court in WP (C) No.617/2009. The constitution of the committees had never been disclosed earlier, not even when the persons were appearing before the same interview. Accordingly, there was no delay in filing the review application and has requested that if there be any delay the same should be condoned. What weighs to our consideration here is that technically it could be construed that there is limitation for the simple reason that the applicant had the remedy even if the constitution of the committee had not been disclosed to him. However, one takes this argument with a pinch of salt as under such circumstances, as has been mentioned, the constitution of the committee can never remain a closely guarded secret, particularly to an internal candidate. Having said this, there is also a contrary side to it. What weighs to our consideration is that the issue of limitation should have been raised and decided at the first instance. The points that have been agitated by the applicant are worthy and have a delay of implication for the future. Having taken note of the fact that the pleadings having been completed and the arguments advanced and heard on behalf of the parties it appears too late in the day to dismiss the OA solely on the ground of limitation. We further take note of the fact that the issues emerging in the instant case are substantive by nature and need to be decided squarely and comprehensively. We would much like to decide the issue on its merit rather on limitation.
13. In the case of Chairman, Railway Board, Government of India vs. P. Chandrasekaran S/o. C. Ponnusamy and The Registrar, Central Administrative Tribunal, decided on 17.01.2006 vide WP No.29444/2003 where the right of the applicant to receive the protection had been allowed by the Tribunal even beyond the period of limitation. The Honble Supreme Court has held in para 20 of the judgment as under:-
20. Law is well settled that the principle of limitation bars the remedy but does not extinguish the right, save and except Section 27 of the Limitation Act, by virtue of which not only the remedy is barred but a right accrues in favour of a person who has prescribed his right over immovable property by the principle of adverse possession. The said principle obviously has no application in the present case. In the present case, even though the right of the employee to receive increased salary on the basis of pay protection became barred by limitation, the inherent right was not extinguished. Obviously he cannot claim any arrears of salary before July, 1996, when he retired, as all those claims were barred by limitation under the Limitation Act as well as under Section 21 of the Administrative Tribunals Act. However, his right regarding pension on the basis of protection of pay scale remained as such. The right to claim pension on the basis of such pay protection at least with effect from 19.10.2001 cannot be said to be barred by limitation. Hence, we accept the argument. Though the Application is barred by limitation, we accept the prayer of the applicant for condonation having come so far in order to decide the issues on their substantive merit. This First issue is accordingly answered in favour of the applicant.
Issue No.2
14. Coming to the second issue Rule 10 of the CAT (Procedure) Rules, 1987 provides as under:-
10. Plural remedies.- An application shall be based upon a single cause of action and may seek one or more reliefs provided that they are consequential to one another. Looking to the relief column as provided in the OA, the first relief relates to the issue of double jeopardy, the second to his promotion at par with his juniors, third relates to fresh provision of provisional seniority list and the fourth regarding declaration to the setting aside of the appointment of Respondent Nos.12 to 17 in view of the selection committee having not been properly constituted; the fifth relief is in respect of the process being initiated for constituting a fresh selection committee and the sixth relief relates to hold the Respondent Nos.7 to 11 appointed by an illegally constituted selection committee. It appears from a bare reading of the relief asked for that the applicant has entered into three sets of reliefs; one relates to his own application of double jeopardy in his own case and henceforth getting the promotion from the year 2006. The second set of reliefs relates to quashing the proceedings of the selection committee for the year 2006, 2007 and 2008 whereby the respondent Nos.2 to 6 were promoted over the applicant. The third set of reliefs relates to Respondent Nos. 7 to 11 who have been illegally appointed. Such mixing of reliefs is not permissible under the provisions of Rule 10 of the CAT (Procedure) Rules, 1987 cited above. Therefore, what is permissible is the relief in a single cause of action and the consequences that flow from the same. From the above, it also appears that relief No.1, 2 & 5 are consequently related while relief 3 & 4 belongs to the second category and 6 relates to a third category. The normal course in such cases would be that one set of relief whichever happens to be primarily be allowed that is what we propose to do in case the issues were to be overwhelmingly decided in favour of the applicant at the end of this decision.
Issue No.3
15. Now coming to the Issue No.3, we find that this would largely depends that since there is undisputed case of multiplicity of reliefs and naturally all prayers in one set of relief i.e. a seniority list, this argument appears to hold good. Admittedly, the draft seniority list of the applicant was published on 07.10.2009 against which the applicant has submitted his representation. The cause of action relating to seniority of the applicant vis a vis seniority of Respondent Nos. 2 to 6 would only arise once the final seniority list is finally published. The applicant at this point of time cannot be precluded from taking the view that there is no reply and hence the requirement of Section 20 (2) (b) of the Administrative Tribunals Act, 1985 stands fulfilled. For the sake of better elucidation Section 20 2 (b) of the Administrative Tribunals Act, 1985, reads as under:-
20 (2) (b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. As already discussed in respect of the Issue No.2, this issue is also largely depended upon the findings in respect of the issues No.4,5 & 6.
Issue No.4
16. Insofar as Issue No.4 is concerned, the applicant has relied upon Regulation 13 of NHA (Conduct, Discipline & Appeal) Regulations, 1997, which provides the punishment in the following manner:-
(a) Reprimand
(b) Withholding of increment or promotion.
(c) Demotion to a lower post or grade or to a lower stage in his incremental scale.
(d) Recovery from pay of the whole or part of any pecuniary loss caused to the Authority by the officer or employee. Regulation 25 of NHA (Conduct, Discipline & Appeal) Regulations, 1997 provides as under:
25. Residuary matters:
Matters with respect of which no specific provisions have been made in these regulations, shall be regulated under the provisions of the Central Civil Services (Conduct, Classification and Appeal) Rules, 1965, as amended from time to time, and the instructions issued thereunder by the Central Government. The minor penalty under Rule 11 of the CCS (CCA) Rules, 1965 reads as under:-
..As in the case of promotion of a Government servant, who has been awarded the penalty of censure, the penalty of recovery from his pay of the loss caused by him to Government or of withholding his increment(s) does not stand in the way of his consideration for promotion though in the latter case promotion is not given effect to during the currency of the penalty. (emphasis supplied)
17. There is no doubt that a reading of the provisions of Rule 13 of the NHA (Conduct, Discipline & Appeal) Regulations, 1997, invariably gives an impression that withholding of increments or withholding of promotion are invariably distinct and separate from each other and that there is substance in the argument of the applicant that he cannot be awarded more than one minor penalty for the same offence. However, it is necessary here to draw a distinction between promotion and postponement of promotion/keeping of promotion in abeyance during the currency of punishment. For instance by withholding of increment from pay we would like to take the matter to a larger context. Whether sealed cover proceedings have been followed and promotion delayed on account of currency of penalty and the recommendations of the selection committee were kept in a sealed cover. Even a censure awarded to him and any currency would render him as one of the blameworthy character. Thus, eligibility of the applicant to be considered for promotion comes into existence only after the currency of penalty is over. When the penalty is under currency promotion is delayed, which is the consequence for deferment of seniority, leading to delayed promotion. The applicant cannot agitate against the same as the case of double jeopardy. The Government of India recommendations in this regard are as under:-
7) Promotion of employees on whom any penalty has been imposed-
The Staff Side of the National Council, at its meeting held on 27th and the 28th January 1997 raised the following points:
(i) Censure should not be a bar to eligibility to sit for a departmental/promotional examination or for promotion
(ii) Where the responsibility of an employee for any loss is indirect, he should not be debarred from being considered for promotion during the period of recovery of the loss; and
(iii) A distinction should be made between stoppage of increments and reduction to a lower stage of the pay scale and in the former type of cases, should not be debarred from being considered for promotion. Here we have also taken into account the argument of the learned counsel for Respondent No.1 that the NHAI Regulations are silent as to what is the date of implementation of promotion order during the currency of the punishment. It is uncontested that where the Regulations are silent the provisions of CCS (CCA) Rules, 1965 will apply as provided below:-
Rule 11
(i) Censure.
(ii) Withholding of his promotion.
(iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders.
(iv) Withholding of increments of pay. From the above, it does appear that the currency of punishment is no bar to promotion but there is a distinction between denial of promotion and deferment/keeping in abeyance.
18. In the instant case, learned counsel for the respondent has drawn attention of the Tribunal towards the minutes of the selection committee meeting held on 20.11.2006. It appears that the applicant had participated in the interview for the post of General Manager (Technical) and was due to eligible. The name of the applicant figures at Sl. No.7 below one M. K. Ganesan. A photo copy of the attendance sheet has been produced by the applicant which indicates that he had appeared and has signed the attendance sheet. Further a merit list was drawn up in which the applicant appears to have placed at Sl. No.5 in the merit list for the post of general candidates and has secured 50 marks, whereas No.1 candidate Colonel M. K.Jain had scored 82 marks. In this regard, the recommendation of the Committee in the same proceeding is as follows :-
5. Based on the above criteria, the Committee assessed the officers as indicated in Annexure-II. All the officers who scored 75% and more marks (65% & above in respect of candidates belonging to SC/ST) were found suitable for appointment. Accordingly, the following officers are recommended for appointment in the order of merit indicated below.
Sl. No. Appl No. Name (S/Shri) Organisation/Post Held Total (100)
1. 27 Col Mahendra Kumar Jain Indian Army 82
2. 60 Vishal Gupta NHAI/DGM (Tech.) 80
3. 70 Jitendra Kumar NHAI/DGM (Tech.) 80
4. 26 Arun Kumar Gupta P.W.D. Rajasthan/SE 77 Likewise, in the meeting of the Selection Committee held on 12.07.2007, the applicant had scored only 46 marks whereas the cut off marks for selection was 70.
19. Now we examine the issue that when an employee is promoted following the expiry of the period of punishment is he restored to its original place of seniority or he will be placed below his juniors who have been promoted during the interregnum. It remains uncontraverted that the promotion could not have taken place during the currency of punishment. In the meantime, the DPCs have been held and his juniors have been promoted and have served for a period of time. The question is can clock be set back. It is well possible that the juniors who have been so promoted in the meantime could come up with the grievance that whatever period of service they have rendered in the superior capacity gets swiped out without having so earned by the employees restored. An identical matter has been considered by the Honble Apex Court in Collector of Thanjavur Distt. and Ors. Vs.S. Rajagopalan and Ors. [2000 (9) SCC 145]. In the cited case, the respondents were Assistants who had been inflicted with a minor punishment consequent to the disciplinary enquiry. The punishment inflicted on them was stoppage of increment. When the list of Deputy Tehsildars was drawn up for the year 1982 their names were excluded on the ground that punishments were imposed on them, the respondents approached the CAT which allowed their petitions with a direction for inclusion of their names in the list of Deputy Registrars to be considered uninfluenced by minor punishment inflicted on them and if by such consideration they were found fit for inclusion in the list they should be suitably placed as per their seniority in the cadre. The Honble Supreme Court held that the Tribunal had erred in thinking that if the minor punishment is inflicted on the respondent taking into consideration for the purpose of inclusion of their names in the list of Deputy Tehsildar that would amount to a double jeopardy. Para 28 & 29 of the judgment reads as under:-
28. The Tribunal has also struck down the following portion in the second subparagraph after clause (iii) of paragraph 3 which reads as follows: "If any penalty is imposed on the officer as result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon" and has directed that if the proceedings result in a penalty, the person concerned should be considered for promotion in a Review DPC as on the original date in the light of the results of the sealed cover as also the imposition of penalty, and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions. It may be pointed out that the said sub-paragraph directs that "the officer's case for promotion may be considered in the usual manner by the next DPC which meets in the normal course after the conclusion of the disciplinary court proceedings". The Tribunal has given the direction in question on the ground the such deferment of the claim for promotion to the subsequent DPCs amounts to a double penalty. According to the Tribunal, "it not only violets Articles 14 and 16 of the Constitution compared with other employees who are not at the verge of promotion when the disciplinary proceedings are initiated against them but also offends the rule against double jeopardy contained in Article 20(2) of the Constitution". The Tribunal has, therefore, held that when an employee is visited with a penalty as a result of the disciplinary proceedings there should be a Review DPC as on the date when the sealed cover procedure was followed and the Review DPC should consider the findings in the sealed cover as also the penalty imposed. It is not clear to us as to why the Tribunal wants the Review DPC to consider the penalty imposed while considering the findings in the sealed cover if, according to the Tribunal, not giving effecting to the findings in the sealed cover even when a penalty is imposed, amounts to double jeopardy. However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be deference the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover.
29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in presenting. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after Clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.
20. The Honble Supreme Court have laid the issues crystal clear that an employee found guilty of misconduct if not to be placed at the same pedestal as other employees who have been clean and restoring into his superiority in the cadre when he gets to be promoted amounts to punishing the latter category of employees who have been clean and not guilty of misconduct. Moreover, we also shudder to think that what kind of demoralizing effect it would have been on the efficient and clean employees. Therefore, we have not the least hesitation in rejecting both the arguments of the applicant relying the double jeopardy and restoration of seniority when promoted.
Issue No.5
21. In respect of the 5th issue, what the applicant has challenged in a nut shell is that the selection committees were improperly constituted against the rules and, therefore, any decision to be taken by them would be void ab initio and ipso facto following the logic laid down in Rajesh Guptas case (supra). In this regard, Rule 11 regarding the constitution of the committee as noted in para 9 of the judgment of the Honble High Court of Delhi in WP (C) No.617 of 2009 is as follows:-
(i) Member (Administration)
(ii) Director General (Road Development) or Assistant Director General nominated by him.
(iii) Member of the NHAI nominated by the Chairman. The said judgment of the Honble High Court records the argument put forth in the following manner 14. From the aforesaid argument of learned counsel for the NHAI, it is clear that there is an acceptance of the fact that the Selection Committee was not constituted in accordance with the requirements stipulated in Regulation 11(3) of the Regulations. In fact, even in para 5 of the impugned judgment it was conceded before the Tribunal also that so far as constitution of the Selection Committee is concerned, that was not as per the aforesaid regulations. However, NHAI is trying to provide the justification for not doing so.
15. As noted above, as per Regulation 11(3), one of the Members in the Selection Committee should have been DG (RD) or ADG nominated by him. NHAI claims that there was no DG (RD) in the year 2004. This, according to the respondent No.1, is a false stand taken as it is factually incorrect that the post of DG (RD) was lying vacant in the year 2004. In respect of this, Mr. Nidhesh Gupta, learned senior counsel appearing for the respondent No.1 drew our attention to the following office orders :-
(a) Office Order No. 5/2004 dated 30.1.2004 as per which one Shri Indu Prakash, Chief Engineer, was appointed as DG (RD) and Special Secretary in the Ministry of Road Transport and Highways on ad-hoc basis for a period of three months.
(b) Order dated 20.10.2004, which is a relieving order of Shri Indu Prakash, Chief Engineer, in the Ministry of Shipping, Road Transport and Highways because of his currently officiating as DG (RD) and Special Secretary on ad-hoc basis.
(c) Office Order No. 87/2004 dated 29.12.2004 whereby Shri Indu Prakash, while working as Member (Technical) in NHAI was given additional charge of the post of DG (RD) till 26.1.2005 or until further orders, whichever event occurs earlier.
16. Learned counsel for the petitioner NHAI could not controvert the veracity of the aforesaid office orders which show that Mr. Indu Prakash came as DG (RD) on deputation to NHAI in January 2004 and remained in this capacity in the entire year, at least. Therefore, when DG (RD) was available, the justification for including another Chief Engineer is not tenable. The justification that NHAI is bound by the directions of the Central Government under Section 33 of the NHAI Act is of no consequence as it was the duty of the NHAI to point out to the Central Government that nomination of the Chief Engineer was not in accordance with Regulation 11(3). Section 33 stipulates that the NHAI shall in the discharge of its functions and duties under this Act, be bound by such directions on questions of policy.. It is only in matters concerning the policy that the NHAI is bound and not on other matters. In any case, the petitioner is bound to follow statutory provisions. Further, matters concerning recruitment etc. are provided in self contained Regulations of 1996.It was urged that the proceedings of the petitioner will not be invalidated on account of the Selection Committee not being properly constituted. Reliance was placed on Section 8(c). The said proposition is incorrect since Section 8(c) of the Act provides that any irregularity in the procedure adopted by the petitioner which does not affect the merits of the case, will not be invalidated for the said reason. It is submitted that the said provision concerns the petitioner. The Authority is defined in Section 3(3). The merits of the case have also been affected. Therefore, the said Section 8 does not help the case of the petitioner as it has no application at all.
22. We also find that some of the arguments relating to the assertion that there being no post of Assistant Director General in the Ministry of Road, Transport at any given time have already been considered by the Honble High Court. It is not possible for us to revisit this argument as has been endeavored by the learned counsel for Respondent No.1 in particular and by others also. However, we do pay a heed to the logic advanced by the learned counsel for the respondents that para 27 of the judgment of the Honble High Court in WP (C) No.617/2009 (supra) confined the coverage of the judgment in the selection to the post of DGM (F&A). In other words, this judgment would be applicable only to the case of applicant Rajesh Gupta and one P. K. Aggarwal and would not extend to other cases. In this regard, for sake of better elucidation, we choose to reproduce Para 27 of the judgment:-
27. An argument in terrorem was advanced by the learned ASG, namely the impugned order would set aside large number of appointments. It was rightly pointed out by the leaned counsel for the respondent No.1 that the instant case was only concerned with the selection to the post of DGM (F&A). Moreover, most of the concerned persons who came on deputation by those selections have already left NHAI, as per the admission of NHAI in writ petition itself (Ground W). Only three persons, namely, respondent Nos. 2, 5 & 7, are going to be affected. Significantly, they have not even approached the Court challenging the judgment of the Tribunal and, thus, it appears that they have accepted the judgment. Furthermore, when their appointments are found to be illegal as they did not even fulfil the requisite qualifications, these have to be treated as non est, as held in the following cases:
(a) Secy., State of Karnataka & Ors. v. Umadevi & Ors. (2006) 4 SCC 1 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
(b) Binod Kr. Gupta & Ors. v. Ram Ashray Mahoto & Ors., (2005) 4 SCC 209 13. The advert6isement was no advertisement as required by the High Court. Without adequate notice no fair opportunity was given to others who might have applied. Apart from this, it does not appear from the records that there was any selection procedure followed at all. There is no explanation why the Selection Committee had been bypassed nor any acceptable reason why the persons who had applied as far back as in 1986 were ignored. This singular lack of transparency supports the finding of the High Court that the appointments were not made bona fide. The District Judge, who was ultimately responsible for the appointment of Class IV staff violated all norms in making the appointments. It is regrettable that the instructions of the High Court were disregarded with impunity and a procedure evolved for appointment which cannot be said to be in any way fair or above board. The submission of the appellants that they had been validly appointed is in the circumstances unacceptable. Nor can be accede to their prayer to continue in service. No doubt, at the time of issuance of the notice on the special leave petition, this Court had restrained the termination of services of the appellants. However, having regard to the facts of the case as have emerged, we are of the opinion that this Court cannot be called upon to sustain such an obvious disregard of the law and principles of conduct according to which every judge and anyone connected with the judicial system are required to function. If we allow the appellants to continue tin service merely because they have been working in the posts for the last 15 years we would be guilty of condoning a gross irregularity in their initial appointment. The High Court has been more than generous in allowing the appellants to participate in any fresh selection procedure as may be held and in granting a relaxation of the age limit.
23. Moreover, we have also taken into account the argument put forth by the learned counsel for the respondents that what has been alleged regarding constitution of the committee was the continuous practice within the organization. By an extension of the same argument initially the appointment of the applicant as GM (Tech) in 1998 and promotion as Deputy General Manager in 2008 would also stand struck down.
24. It is very true that one cannot blow hot and cold in the same breath or in legal language aprobat and reprobate in the same transaction. This is supported by the judgment of Honble Supreme Court in the case of Kashmir Singh vs. Union of India & Ors 2008 (7) SCC 259. This principle was further enunciated in Joint Action Committee of Air Line Pilots Association of India (ALPAI) and Others vs. Director General of Civil Aviation and Others (2011) 5 SCC 435, the Honble Supreme Court has held as under:-
12. The doctrine of election is based on the rule of estoppels- the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppels by election is one of the species of estoppels in pais (or equitable estoppels), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. In yet another case, City Montessori School Vs. State of Uttar Pradesh and Others (2009) 14 SCC 253, the Honble Supreme Court has reiterated as under:-
28. The question which, however, falls for consideration is as to whether in a situation of this nature, principles of natural justice were required to be complied with. It is now a well settled principle of law that it cannot be put in a straitjacket formula. The court despite opining that the principles of natural justice was required to be followed my, however, decline grant of a relief, inter alia, on the premise that the same would lead to a useless formality or that the person concerned in fact did not suffer any prejudice. It is trite that a party may waive his right of hearing by his conduct. It is furthermore well settled that a fact admitted need not be proved. Indisputably, the appellant was a party to the decision. The decision was based on the consent of the respondents which, in the facts and circumstances of this case, must be held to have included the appellants herein also. A judgment rendered by a court of law and in particular a consent order, it is trite, must not only be construed in its entirety but also having regard to the pleadings and conduct of the parties. Issue No.6
25. This issue has already been partly dealt with while discussing the Issue No.4. It is well established that a punished employee whose promotion has been kept in abeyance on account of currency of the punishment cannot be restored to its original place once promoted. Learned counsel for the Respondent Nos.2 & 12 as also Respondent No.1 have drawn the attention of the Tribunal to the fact that the applicant had been given the opportunity to appear in the test. The position is further clarified by the following chart:-
Sl. No. Name Total marks secured!! 1 Lambodar Prasad Padhy 98
2.
Ashutosh Gautam 95
3. C. K. Sinha (OBC) 83
4. Ravi Bhushan Sinha 82
5. Awadhesh Kumar Singh 80
26. The applicant had further appeared in the interview dated 1.02.2008 and had secured 80% marks awarded by the selection committee which is equivalent to the marks secured by Awadhesh, the candidate No.5 and Respondent No.6 in the instant proceedings. However, the punishment awarded to the applicant is still in currency, the applicant could not be considered. Having once considered and not selected does not open to the applicant to challenge the proceedings of the committee. He could have challenged the same but earlier without having been participated in the selection process.
Issue No.7
27. Now, we come to Issue No.7 relating to the appointment of Respondent Nos.7 to 11. The arguments of the parties counsel on this point have already noted earlier. We come straight to the crux of the problem. These respondents are all ex-army officers. The grievance of the applicant is that they have been selected as ad hoc appointment on absorption basis by considering their ACRs whereas the applicant was selected as GM (Technical) on promotion basis. It is wrong on the part of the respondent No.1 to introduce this dual system which is discriminatory and the answering respondents who have already been assessed on the basis of points. The applicant had also challenged the appointment of the answering respondents on the ground of wrong constitution of the committee which has already been discussed and settled in respect to Issue No.5 and need not to be discussed further. We are compelled to take into account the argument of the respondents that the applicant is precluded from assailing their appointment on the grounds of wrong constitution and relaxation of experience as admittedly he himself has been promoted as DGM Technical only after 3 years and 5 months of service as against the four years requirement. In this regard, we place our reliance on the judgment of Honble Apex Court in the matter of Dhananjay Malik & Ors. Vs. State of Uttaranchal & Others 2008 (4) SCC 171 8. In Madan Lal v. State of J & K : [1995]-1-SCR-908, this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the present case, as already pointed out, the writ petitioners- respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
9. In a recent judgment in the case of Marripati Nagaraja v. The Government of Andhra Pradesh : JT-2007(12)SC-407 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge.
This judgment appears to have been further reinforced by the case of K. A. Nagamani vs. Indian Airlines and Others AIR 2009 SC 3240.
28. Now we take up the question that whether the appointment by absorption is permitted under the NHAI (Recruitment, Seniority and Promotion) Regulations, 1996. In this regard, it is to be mentioned that Regulation 4 makes classification of all 4 posts in category A, B, C & D. Regulation 5 provides that the appointment to the post shall be governed as per the schedule. Admittedly, suppose that we are dealing with the matter relate to Group-A category, the post of General Manager is of A category, wherein the mode of recruitment has been prescribed as on transfer on deputation/promotion/direct recruitment. In other words, any of these could be resorted to. The objection of the applicant is that the term ad hoc promotion has not been resorted to. It has not been mentioned anywhere in these Regulations. In this regard, the Respondent No.1 has explained in Para 4.19 of the reply to the OA as under:-
4.19 Contents of Para 4.19 are admitted to the extent that Responents No.7 to 11 were selected by the Selection Committee vide minutes dated 25.02.2010 for ad hoc appointment on absorption basis for the post of GM (Technical) and they were issued letters of appointment dated 26.02.2010, pending their permanent absorption on completion of certain formalities. It is denied that there is any illegality in the same, or that the same is contrary to the Rules and Regulations.
29. It has been argued during the course of the early submissions that in view of the urgent requirement of the man power the answering respondents Nos.7 to 11 were issued appointment letters pending fulfillment of other formalities. This was done in the interest of work and there is nothing irregular about that. We tend to agree with this position on the ground that ad hoc absorption is not a category in itself but it only denotes prefixes and denotes that the observation has been made subject to the fulfillment of a certain formality. This in no way detracts from the regular absorption except on the point that it was not permanent and in case that any of these formalities were not fulfilled it would be subject to the revocation. We are also to note in this regard that use of such language and procedures are resorted to in government working and do not in any way serve to vitiate the process or rendered the selection process null and void. Regulation 15 (3) of the NHAI (Recruitment, Seniority and Promotion) Regulations, 1996, referred to as to how this seniority is to be determined. For the sake of clarity, we reproduce Regulation 15 (3) as under:-
15 (3) The seniority of persons initially appointed on deputation and subsequently absorbed in the Authority shall be reckoned from the date of their initial appointment. If two or more persons in the same grade get absorbed in the Authority on the same date, their inter se seniority shall be determined with reference to their seniority level in their parent cadre.
30. It has also been noted earlier in this order that the list published has been draft seniority list and it is not open to challenge before this court at the present juncture. Therefore, we leave the issue of seniority opened to be decided as per the procedures. We conclude this issue by holding that there is nothing wrong we have been able to find that the appointment of respondent Nos.7 to 11 is wrong.
Issue No.8
31. Coming to the last issue what weighs, in our consideration, even at the cost of repetition is that the applicant has all along played it safe. He accepted the punishment without questioning the same. He chooses to remain silent till he was promoted and then raked up the issue which he could have well done earlier. We also found no merit in the argument of double jeopardy or restoration of two original place of cadre seniority in the arguments of the applicant. Conversely falls that the seniority assigned to Respondent Nos.2 to 6 has been done correctly. We also find that the arguments raised in challenging the appointment of Respondent Nos. 7 to 11 do not hold much water and fail to sustain by leaving open the question of seniority to be decided as per rules.
32. Therefore, we find that the OA is devoid of merit on the basis of the discussions above. The same is accordingly dismissed without costs.
(Dr. B. K. Sinha) (Syed Rafat Alam) Member (A) Chairman /pj/