Central Administrative Tribunal - Delhi
Sh. Rajesh Gupta vs National Highway Authority Of India on 29 September, 2008
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-572/2008
MA-516/2008
New Delhi this the 29th day of September, 2008.
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. N.D. Dayal, Member(A)
Sh. Rajesh Gupta,
Manager (Finance & Accounts),
National Highway Authority of India,
G-5 & 6, Sector-10,
Dwarka, New Delhi. . Applicant
(through Sh. Nidesh Gupta, Sr. Advocate with Sh. Sh. Tarun Gupta,
Advocate)
Versus
1. National Highway Authority of India
through its Chairman,
G-5 & 6, Sector-10,
Dwarka, New Delhi.
2. Sh. P.K. Aggarwal,
General Manager(Finance),
National Highway Authority of India,
G-5 & 6, Sector-10,
Dwarka, New Delhi.
3. Sh. Sourabh,
Deputy General Manager (Finance),
National Highway Authority of India,
G-5 & 6, Sector-10,
Dwarka, New Delhi.
4. Sh. Sudipta Pal,
Deputy General Manager (Finance),
C/o National Highway Authority of India,
1/73-G, Vineet Khand,
Gomti Nagar,
Lucknow(UP).
5. Sh. S.D. Sharma,
Deputy General Manager (Finance)
National Highway Authority of India,
G-5 & 6, Sector-10,
Dwarka, New Delhi.
6. Sh. B.K. Pandey,
Deputy General Manager (Finance),
National Highway Authority of India,
G-5 & 6, Sector-10,
Dwarka, New Delhi.
7. Sh. B.L. Narasimhulu,
Deputy General Manager (Finance),
C/o National Highway Authority of India,
House No. 6-4-239, 3rd Cross,
Maruti Nagar,
Anantpur-515 004.
8. Sh. V.R. Srinivasan,
Deputy General Manager (Finance),
National Highway Authority of India,
G-5 & 6, Sector-10,
Dwarka, New Delhi.
9. Sh. P. Pathak,
Ex General Manager (Finance),
National Highway Authority of India,
B-2/2095, Vasant Kunj,
New Delhi-110 070.
10. Sh. Satyanarayan Dash
(Ex Member, Finance)
Secretary,
Department of Ex-Servicemen Welfare,
Ministry of Defence,
198-B, South Block,
New Delhi. . Respondents
(through Sh. Ramgi Sriniwasan, Sr. Advocate with Sh. Mukesh Kumar
and Ms. Vartika Sahey, Advocate)
O R D E R
Mr. N.D. Dayal, Member(A) The applicant was appointed as Manager (Finance & Accounts) in the National Highway Authority of India (NHAI) on the basis of selection by interview held on 13.03.1999 following advertisement published in November of the previous year. The NHAI is a statutory body created under the Act of 1988 and the Chairman and Members of the same are appointed by the Central Government and function under the Ministry of Road, Transport and Highways. It is a State within the meaning of Article 12 of the Constitution.
2. The applicant is aggrieved by his non-selection to the promotional post of Deputy General Manager (Finance & Accounts) in the pay scale of Rs. 12000-375-16500/-, despite his being eligible and selections being held for the purpose in pursuance of advertisements of 2004,2005 and 2006. The private respondent Nos. 2 to 8 are those candidates who had been selected. Private respondent No.9 has been impleaded stating that he had wrongly attended the Selection Committee of 21.11.2006 and respondent No.10 because he had signed minutes of the same Selection Committee even though he did not attend the same. During hearing of this matter on 08.07.2008, it was clarified by counsel for respondents that the reply already filed would stand good for all the respondents. While the process of promotion was not interfered with, the Tribunal directed that the same shall be subject to final outcome of the present O.A.
3. The learned counsel for the applicant has, at the outset, drawn attention to Annexure A-5, which is a copy of the Gazette of India publishing the NHAI (Recruitment, Seniority and Promotion) Regulations, 1996, which came into force on 11.03.1996. He has drawn attention to Regulation 11(3), which deals with the constitution of the Selection Committee for Group-A posts and reads as under:-
In the case of selection of candidates to a Group A post, the Chairman shall be Presiding Officer thereof and the Member (Admn.), the Director General (Road Development) or the Assistant Director General nominated by him and another Member of the Authority nominated by the Chairman shall be its members. In the light of the same, it is pointed out that the minutes of the Selection Committee dated 03.09.2004 (Annexure A-7), held consequent to advertisement issued that year for the post of Dy. General Manager (Finance & Accounts), and minutes of Selection Committee of 21.11.2006 (Annexure A-16) against advertisement of 2005 would show that the Chief Engineer was a part of both as representative of DG(RD)&SS, MoSRT&H and he was wrongly included therein. The learned counsel for the respondents states that the Chief Engineer being of Joint Secretary level is higher in rank than Dy. General Manager (Finance & Accounts) and as such there was no indiscretion in his joining the Selection Committee on 03.09.2004 and in fact since the DG, Road Transport was not there and even the Assistant DG(RD) was unavailable, the Chief Engineer was being nominated under powers of the DG to authorize any senior officer for the purpose, which would be evident from the minutes of the meeting of the Selection Committee of 21.11.2006 as well, wherein once again it was the Chief Engineer who sat on the Committee in the place of DG(RD)/ADG(RD). Further, with reference to the minutes of the Selection Committee meeting held on 21.11.2006, it is pointed out by the learned counsel for the applicant that Mr. P. Sudhir Kumar, CCA, MoSRT&H has also signed the same but he was not eligible to be on the Committee as per Rules. There is no clarification forthcoming with regard to his being co opted in the meeting of 21.11.2006 contrary to the composition prescribed in the statutory regulations. The applicant in his representation dated 02.01.2007 (Annexure A-17) had, inter alia, mentioned about his satisfactory performance in the interview of 21.11.2006, having been able to answer all the questions put by the General Manager (Finance). However, it is alleged that Dr. Satyanarayan Dash, who was Member (Finance) had signed these minutes of 21.11.2006 and there is no signature of the General Manager (Finance). The applicant contends that Dr. Dash was not actually present at the Selection Committee meeting. In the reply given by NHAI dated 24.01.2007 (Annexure A-18) there is no denial regarding presence of General Manager (Finance). Learned counsel for the respondents has, however, stated that the signature of Dr. Dash is appended to the minutes of the meeting because he was there. During the hearing applicant has placed minutes of Selection Committee meeting dated 08.06.2007 for two (variable) posts of Dy. General Manager (Finance & Accounts) which show that the Chief Engineer as representative of DG(RD) was again present, which was impermissible. One Sh. V.R. Srinivasan was recommended for appointment.
4. It is note worthy that our attention has not been drawn to any material on record in support of the contention that authorization by DG(RD) of a senior officer other than ADG(RD) is provided for by the statutory regulations in that regard. Nor is it the respondents case that the regulations envisage inclusion on the Selection Committee of the other persons as well, outside the provisions of regulation 11(3).
5. The learned counsel for the respondents has described the background in which selections were being held in NHAI, which has an important mandate for development of the infrastructure facility in the country and good progress on the task of 4/6 laning of Highways is expected from it, being in the public eye. Many selections have taken place over time and in view of the need to uphold standards, certain practices have come to be followed in keeping with propriety and good faith to discharge the work and responsibilities entrusted to NHAI in furtherance of its objectives. It is, however, fairly conceded that it may not be possible to successfully defend the constitution of the Selection Committees under challenge in the light of the regulations referred to.
6. The learned counsel for the applicant next pointed out that the Regulations of 1996 lay down an eligibility requirement of experience of atleast 12 years service in a responsible position in the Finance/Accounts Department related to major infrastructural project of the Government of India or a Government Undertaking or an Autonomous Body or a Commercial Organization of repute for the post of Deputy General Manager (Finance & Accounts) as would be evident from page-65. It is alleged that those selected, particularly by the Selection Committee on 03.09.2004, do not meet this requirement in the case of three out of the four persons placed on the panel. The learned counsel for the respondents stated that in the case of the applicant himself, when he was inducted in NHAI in the post of Manager (Finance & Accounts), this criteria had been relaxed and thereafter a consistency has been maintained keeping in view also the non-availability over the years of candidates with such experience of major infrastructural projects. As such it is contended that the applicant has no locus standi to challenge the present selection. However, it is not the case of the respondents that statutory rules and regulations spelling out eligibility conditions for recruitment could be overcome in such manner, within the settled law in this regard. A provision for relaxation of upper age limit seems to have been incorporated in Regulation 6(1) but no other power of relaxation in general or specifically in respect of this eligibility condition of experience, has been brought to our notice.
7. The learned counsel for the applicant has relied upon certain judgments in support of the applicants case. We find that the Honble Supreme Court in Sardara Singh and Others Vs. State of Punjab and Others. (AIR 1991 SC 2248) was dealing with a challenge, inter alia, to the constitution of the Committee set up at District level for recruitment to the post of Patwaris. The District Revenue Officer was one of those nominated in official capacity on the Committee and it was held that it was immaterial if the incumbent had changed so long as the District Revenue Officer had participated in the selection thus affirming the necessity of adherence to the prescribed constitution of the Committee. In Ashok Kumar Sonkar Vs. Union of India and Others (2007(4)SCC 54) the question arose as to whether the appellant was eligible for the post of Lecturer in terms of his educational qualification with reference to the cut off date. Even though he was not eligible in that regard, he was allowed to appear before the Selection Committee and also appointed. The selection proceedings were set aside. Dismissing the appeal, the Honble Supreme Court held that if uncertainty is allowed to prevail in matters of eligibility conditions, the employer would be flooded with applications of ineligible candidates. Since the appellant did not hold the requisite qualification on the cut off date he was not eligible for the post. If the selection is illegal on such grounds, the cancellation of appointment could not be questioned as the result would remain the same being a futile exercise even if he was given opportunity of hearing. An illegal appointment is nonest in the eye of law and considerations of equity and sympathy would be wholly improper.
8. It is also a settled position that the Selection Committee cannot relax the eligibility conditions if it has no power to do so. As such even though such Committees are manned by Experts in the field the Court can interfere if there be any illegality as held by the Apex Court at Para-15 in the case of Secretary, A.P. Public Service Commission Vs. B. Swapna and Others (2005(4)SCC 154). Further in Shainda Hasan Vs. State of Uttar Pradesh and Others (1990(3)SCC 48) the Apex Court upheld the view that the Selection Committee would not be justified in relaxing the qualifications and experience in favour of a candidate without reserving that right to itself in the advertisement. In the absence of Statutory Rules providing the power of relaxation, the advertisement must indicate that the Selection Committee/Appointing Authority shall have the power to relax the qualification.
9. The applicant has put forward a few other grounds as well by reference to Regulations 12(2), (3) and Regulation 15. It is submitted that the panels drawn up by the Selection Committee did not conform to the requirement of selecting three persons for each post advertised exceeding the same in September 2004 and falling short in November 2006. New advertisements were issued before one year had elapsed after preparation of panel affecting the filling up of vacancies arising in between. There has been inconsistency in taking ACRs into account from one advertisement to the next and even certificates to the effect that there were no adverse entries have not been obtained before finalization of selections and appointment. Seniority list has not been supplied. This has affected proper consideration on the basis of length of service and proficiency. It is stated that all the panels were drawn up on deputation basis and none of the selected persons has been absorbed as yet. It is also pointed out that the Selection Committees have been arbitrarily fixing the cut off marks in interview, initially in September, 2004 at 80% and on 21.11.2006 at 75% which is illegal and has deprived the applicant of an opportunity for selection. We note that Regulation 12(2) also provides an option to hold a written test or interview or both for making a selection and as such there is no illegality in so far as the present selections have been made by interview alone especially since the Regulations of 1996 have not been assailed, as pointed out by the learned counsel for the respondents.
10. The learned counsel for the respondents argues that the Selection Committee invariably has a certain discretion, which it can exercise. Further, in so far as the ACRs are concerned, the object was mainly to be satisfied that there was nothing adverse in the record of the candidates and recommendations were made subject to certificates to be obtained in this regard. This became necessary as ACRs were not being received in every case. Besides, the process of selection and promotion in an organization with a large number of officers and staff cannot simply be stalled and the NHAI being an expanding organization is required to make larger panels while trying to conform to the Regulations. Unless sufficient number of candidates were found suitable, three persons could not have been empanelled against each vacancy and advertisements had to be issued to fill vacancies arising in-between to meet the man power requirements.
11. It is well settled that an employer would be bound to comply with the Recruitment Rules and Regulations and any appointments made in violation thereof would render them as nullities. Those who are illegally appointed would not have any legal right to continue in service even if they had been working for a long period of time as that would mean condoning gross irregularity in their initial appointment. Reference in this connection be made to judicial pronouncements in National Fertilizers Ltd. & Ors.Vs. Somvir Singh (2006(5) SCC 493) and Binod Kumar Gupta and Others vs.Ram Ashray Mahato & Others(2005(4)SCC 209). In WP(C) Nos. 490/2007(Hemani Malhotra Vs. High Court of Delhi) and 491/2007 (Vineeta Goyal Vs. High Court of Delhi), the Honble Supreme Court was dealing with a matter where minimum marks had been laid down for the viva voce which led to the exclusion of the petitioner from being considered for appointment. It was held that if the minimum marks are not prescribed for viva voce before the commencement of the selection process then it cannot be done either during the selection process or after the selection process and prescription of such marks would become illegal. The learned counsel for the applicant repeatedly stressed upon the judgment of the Apex Court in Virender S. Hooda Vs. State of Haryana & Anr. (1999(3)SCC 696) to contend that policy decisions regarding filling up of vacancies from waiting list would be binding, if they are not contrary to Rules.
12. An objection has been taken by the respondents that the challenge by the applicant to the selection of 2004 is barred by limitation if not the subsequent selection of 2006 as well, particularly when the applicant has filed this O.A. only on 21.02.2008. However, the learned counsel for the applicant draws attention to GOI Notification dated 25.07.2007 (Annexure-A3A) by which the provisions of Section 14(3) of the Administrative Tribunals Act, 1985 have been made applicable to the NHAI alongwith other organizations from 01.08.2007 in exercise of the powers conferred by Section 14(2) of the Act. Since the minutes of the Selection Committee meetings of September 2004 and November 2006 fall within the preceding three years, the O.A. would have to be accepted as within time in accordance with Section 21(2) of the Act. Without going into other grounds also submitted in this regard, we are inclined to agree that the question of limitation would not arise in the present case.
13. The learned counsel for the respondents further refers to page-132 of the reply filed by the respondents wherein at Para 4.14 it is mentioned that after investigation it was revealed that the bank guarantees submitted by the contractor in respect of the contracts executed by the respondent authority were forged in respect of certain contract packages and after investigation in consultation with the Central Vigilance Commission, a chargesheet dated 15.01.2007 has been issued against the applicant and a departmental enquiry is in progress. It was submitted that the applicant is aware of the same in view of Para 4.15 of his rejoinder (page-172) and, as such, this needs to be kept in view by the Court.
14. Having given careful consideration to the submissions made before us as well as the pleadings, we are of the considered view that the proceedings of the Selection Committees dated 03.09.2004, 21.11.2006 and 08.06.2007 suffer from infirmity and illegality, 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 the requirement of 12 years experience related to major infrastructural projects contained in the Regulations. We, therefore, set aside the recommendations of these Selection Committees and consequently the appointments, if any, made on that basis will also be null and void. The respondents would be at liberty to hold fresh selections and give effect to the recommendations in accordance with law within a period of four months from the date of receipt of a copy of this order. The candidates shall be allowed to participate in fresh selections as might be held with relaxation in age if necessary. There shall be no order as to costs.
(N.D. Dayal) (V.K. Bali)
Member(A) Chairman
/vv/
11. It is well settled that an employer would be bound to comply with the Recruitment Rules and Regulations and any appointments made in violation thereof would render them as nullities. Those who are illegally appointed would not have any legal right to continue in service even if they had been working for a long period of time as that would mean condoning gross irregularity in their initial appointment. Reference in this connection made to judicial pronouncements in National Fertilizers Ltd. & Ors.Vs. Somvir Singh (2006(5) SCC 493) and Binod Kumar Gupta and Others vs.Ram Ashray Mahto & Others(2005(4)SCC 209). In WP(C) Nos. 490/2007(Hemani Malhotra Vs. High Court of Delhi) and 491/2007 (Vineeta Goyal Vs. High Court of Delhi), the Honble Supreme Court was dealing with a matter where minimum marks had been laid down for the viva voce which led to the exclusion of the petitioner from being considered for appointment. It was held that if the minimum marks are not prescribed for viva voce before the commencement of the selection process then it cannot be done either during the selection process or after the selection process and prescription of such marks would become illegal. The learned counsel for the applicant repeatedly stressed upon the judgment of the Apex Court in Virender S. Hooda Vs. State of Haryana & Anr. (1999(3)SCC 696) to contend that policy decisions regarding filling up of vacancies from waiting list would be binding, if they are not contrary to Rules.
12. An objection has been taken by the respondents that the challenge by the applicant to the selection of 2004 is barred by limitation if not the subsequent selection of 2006 as well, particularly