Central Administrative Tribunal - Delhi
Dr. Prafulla Ranjan vs Pension Fund Regulatory & Development ... on 29 June, 2015
Central Administrative Tribunal Principal Bench, New Delhi OA No.3695 of 2013 with OA No.937 of 2014 Orders reserved on : 25.5.2015 `Orders pronounced on : 29.06.2015 Honble Mr. G.George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) OA No.3695 of 2013 1. Dr. Prafulla Ranjan S/o late Janak Kishore Prasad, D 1102, Rohatas Plumeria, Vibhuti Khand, Gomti Nagar, Lucknow (226010) UP.` 2. Sunil Agrawal S/o Shri Ganga Ram Agrawal, R/o PNBIIT Campus, Vibhuti Khand, Gomti Nagar, Lucknow (226010) UP. Applicants (By Advocate: Shri Anand Nandan) Versus 1. Pension Fund Regulatory & Development Authority, through its Chairman, 1st Floor, Plot No.6, Vasant Kunj, Institutional Area, Phase-II, New Delhi-110070. 2. Yogesh Agrawal, Chairman, Pension Fund Regulatory & Development Authority, 1st Floor, Plot No.6, Vasant Kunj, Institutional Area, Phase-II, New Delhi-110070. 3. Subroto Das S/o Shri Rabindra Das, Chief General Manager Pension Fund Regulatory & Development Authority, 1st Floor, Plot No.6, Vasant Kunj, Institutional Area, Phase-II, New Delhi-110070. 4. Mamta Rohit Chief General Manager Pension Fund Regulatory & Development Authority, 1st Floor, Plot No.6, Vasant Kunj, Institutional Area, Phase-II, New Delhi-110070. 5. Anant Gopal Das Chief General Manager Pension Fund Regulatory & Development Authority, 1st Floor, Plot No.6, Vasant Kunj, Institutional Area, Phase-II, New Delhi-110070. 6. The Union of India through the Secretary, Ministry of Finance, Department of Financial Services, Jeevan Deep Building, Parliament Street, New Delhi. Respondents [(By Advocate: Shri Bharat Sangal with Ms. Abenia Aier, Shri A.K. Behera and Shri R.N. Singh with Shri Amit Sinha) OA No.937 of 2014 Subroto Das S/o Shri Rabindra Nath Das, Chief General Manager Pension Fund Regulatory & Development Authority, 1st Floor, Plot No.6, Vasant Kunj, Institutional Area, Phase-II, New Delhi-110070. Applicant (By Advocate: Shri Malaya Chand) Versus 1. Pension Fund Regulatory & Development Authority, through its Chairman, Plot No.6, First Floor, ICADR Building, Institutional Area, Phase-II, Vasant Kunj, New Delhi-110070. 2. Shri Anup Wadhawan, Chairman, PFRDA Plot No.6, First Floor, ICADR Building, Institutional Area, Phase-II, Vasant Kunj, New Delhi-110070. Respondents [[[[(By Advocate: Shri Bharat Sangal with Ms. Abenia Aier) O R D E R SHRI SHEKHAR AGARWAL, MEMBER (A) :
OA No.3695 of 2013 On 1.1.2011, Pension Fund Regulatory & Development Authority (PFRDA) issued an advertisement inviting applications from eligible candidates for various posts, including the post of Chief General Manager (CGM). In the advertisement, prescribed educational qualifications as well as experience required for the posts were also laid down. It was specified that the candidates would be screened by a Committee constituted by PFRDA and shortlisted candidates would be called for interview. Final selection was to be based on marks obtained on the basis of educational qualifications and experience as well as interview. Both the applicants herein also applied for the post of CGM. 114 such applications were received, out of which 76 were found to meet the prescribed criteria and were called for interview. After the interview, respondent nos.3, 4 and 5 were selected and appointed. The applicants protested against these appointments as the selected candidates had been given very high marks in the interview despite not meeting the prescribed criteria of educational qualifications. They sent a representation to PFRDA Board by email on 18.4.2012 and followed it up on 3.7.2012. However, no reply to the same was received. Hence, they have filed this OA before us seeking the following reliefs:-
a) Quash and set aside the selection and appointment of Respondent nos.3, 4 and 5 as Chief General Manager in the Pension Fund Regulatory and Development Authority; and
b) Quash and set aside the offer of appointments dated 31.05.2011 and 22.09.2011 by the respondent PERDA, and
c) Direct the Respondent No.1 that the top eight candidates in the merit list on the basis of educational qualification and work experience be only considered for the interview process and the marks awarded in the interview to these top eight candidates be added and on that basis the final merit list be prepared for selection and appointment AND In the alternative, the applicants would pray that the entire interview process be initiated afresh, in accordance with establishment norms and principles in this regard;
d) Pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the present case.
2. The contention of the applicants is that the appointments made to the post of CGM were illegal, arbitrary and malafide. The official respondents have violated the principles enshrined in Articles 14 and 16 of the Constitution in making such appointments. The respondent nos.3 and 4 did not even fulfill the minimum eligibility qualifications prescribed in the advertisement and should have been rejected at the threshold. However, respondent nos.1 and 2 have deliberately and for extraneous consideration awarded very high marks for interview contrary to the settled law so that they could select the respondent nos.3 to 5 even though they had very low marks in educational qualifications and work experience. Thus, the entire selection process was vitiated. Even the interviews were not conducted in a fair manner and the procedure adopted by the Board was arbitrary and open to manipulation. By their actions, the official respondents have denied the applicants the appointments which they would have otherwise obtained had the selection been fair and honest.
3. Elaborating their arguments further, the applicants have stated that a perusal of the documents obtained from RTI would reveal that PFRDA allocated 50 marks for interview and 50 marks for academic qualifications and work experience. The respondent nos.3 and 4 had obtained only 14 and 13.5 marks respectively on account of their educational qualifications and work experience. However, both of them were given 40 marks each out of 50 in the interview and were finally selected. Thus, two were at 30th and 32nd position out of 35 candidates on the basis of educational qualifications and work experience but directly jumped to 1st and 2nd position in the merit list on account of abnormally high marks awarded to them in the interview.
4. The applicants have relied on judgment of Honble Supreme Court in the case of Director General, India Council for Agricultural Research and others vs. D. Sundara Raju, 2011 (6) SCC 605, to say that Honble Supreme Court has laid down in this case that very high percentage of marks should not be assigned for interview in selection process as that opens the gate for manipulation, nepotism and favoritism.
5. Regarding the education qualifications of the private respondents, the applicants have stated that the 3rd respondent Shri Subroto Das completed his graduation in 1988 obtaining 48% marks. Thereafter he did his MBA in 2008. According to the advertisement, requirement was of first class graduation degree or MBA in Corporate Finance or Financial Management. The respondent no.3 neither had first class degree at graduation level nor did he have MBA diploma in Corporate Finance or Financial Management. Moreover, he had completed MBA only in 2008 and did not have post qualifications experience of 17 years as was required.
6. The 4th respondent Ms. Mamta Rohit completed her graduation in 1988 with 57.08% marks. She completed her MBA in 2007. Therefore, like respondent no.3, she also did not meet criteria laid down. Her MBA too was not in Corporate Finance or Financial Management. On the basis of these arguments, applicants have pleaded that their OA be allowed.
7. Both official respondent no.1 and private respondent nos.3, 4 and 5 have filed their replies. Official respondent no.1 and private respondent nos.4 & 5 have also filed their written submissions which have been taken on record. Private respondent no.3 has chosen to adopt the written submissions of private respondent nos.4 and 5.
8. In their reply as well as in written arguments, the respondent no.1 has stated that PFRDA is a regulatory body for pension sector established by the Government of India vide Notification dated 10.10.2003. Thereafter, after passing of Pension Fund Regulatory and Development Authority Act, 2013, which was notified on 1.2.2014, this authority has been established under Section 3 of the Act. In the 21st meeting of the Board of Directors of respondent no.1 held on 13.10.2010, it was decided to recruit candidates for 43 posts. Eligibility criteria for each post was also framed. This was based on the eligibility criteria for recruitment used by SEBI with some modifications. Thereafter, the erstwhile Chairman vide his note dated 21.12.2010 amended the approved eligibility criteria to the extent that First class Bachelors degree, preferably in Economics/Commerce/Business Administration and First class graduation in Engineering were added to the educational qualifications requirement whereas earlier eligibility criteria as approved by the Board of Directors was Masters degree in Economics/Commerce/MBA in Corporate Finance or Financial Management with 55% marks in aggregate. However, this amended criteria was placed before the Board only in its 23rd meeting held on 30.8.2011.
9. The advertisement was published on 1.1.2011 seeking candidates for various posts including that of CGM. The educational qualifications prescribed were First Class Bachelors degree preferably in Economics/Commerce/ Business Administration or Masters Degree in Economics/Commerce/MBA in Corporate Finance or Financial Management with 55% marks in aggregate CA/CFA/CS/CWA, First Class Bachelors degree in Law or Masters Degree in Law with 55% marks in aggregate, PHD in Economics/Finance or First class graduate in engineering (electronics or computer science)/Masters in computer applications or First Class graduation in computer science/science/commerce/operations research with post graduate qualifications in computers. It was clearly mentioned in the advertisement that if the candidate does not satisfy the eligibility criteria, his or her candidature was liable to be terminated at any stage.
10. The external HR agency, namely, M/s Think People Solution Pvt. Ltd., was engaged for handling the recruitment process. A total of 114 applications were received, out of which 76 candidates, who were found to meet the criteria prescribed, were called for interview.
11. Out of total 100 marks, 50% marks were assigned for qualifications and experience while remaining 50% assigned for interview. Since the post of Chief General Manager was a very senior post, it was thought that limitation of having 10 to 20% marks earmarked for interview would not apply in this case as has been held by Honble Supreme Court in a catena of judgments.
12. The respondent no.2 vide his note dated 18.3.2011 laid down that 20% weightage should be given for educational qualification and 80% weightage for work experience. Thus, the applicants not having mandatory educational qualifications/experience were to be given marks for that attribute but would still remain eligible for short listing on the basis of total marks obtained for all attributes. Thus, respondent nos.3 and 4, who did not possess 60% marks in graduation, were permitted to take part in the interview and were thereafter selected for appointment. It was also found that the MBA degrees of respondent nos.3 and 4 were not in Financial Management. Also they obtained these degrees in the years 2003 and 2007 respectively and did not possess the prescribed post qualification experience of 17 years.
13. The respondent no.1 has further stated that at no stage any relaxation was granted from eligibility criteria to any of the candidates as regards the educational qualifications or experience. 35 candidates were interviewed by a Committee comprising of Shri G.N. Bajpai, former Chairman of SEBI, Shri N.R. Rayalu, CEO of National Pension System Trust and Shri Kamal Kumar Chaudhry, Chief General Manager. Shri Chaudhary was senior-most Chief General Manager and was associated with the interviews because the Executive Director available in PFRDA had expressed her disinclination to be the part of the Interview Committee.
14. As a result of the interview, offers of appointment were sent to respondent nos.3 and 4 on 31.5.2011 and to respondent no.5 on 22.9.2011 when a subsequent vacancy arose. The respondent no.5 satisfied the eligibility criteria of educational qualifications and experience. Subsequently, a complaint was received against these appointments. On examination of the details of the selection process, it was found that respondent nos.3 and 4 did not meet the educational criteria prescribed in the advertisement nor did they have the post qualifications experience of 17 years. Accordingly show-cause notices dated 22.1.2014 were issued to them as to why their appointments should not be cancelled. After considering their responses thereto, their appointments were terminated vide orders dated 13.3.2014. However, the respondent no.3 filed OA 937/2014 before this Tribunal and this Tribunal vide its Order dated 20.3.2014 stayed the termination order. The respondent no.4 filed OA No.392/2014 before the Allahabad Bench of this Tribunal. Vide their Order dated 3.4.2014, the Allahabad Bench has also stayed the termination order of respondent no.4.
15. Respondent no.1 has also stated that the procedure for selection of the candidates was fair, transparent and non-discriminatory. It was in accordance with law. The respondent no.1 has also denied that respondent no.3, 4 and 5 were appointed due to personal proximity with respondent no.2 the erstwhile Chairman as alleged. No such information is available on its record. Nor have the applicants herein produced any such information.
16. In their written arguments, respondent no.4 and 5 have stated that the advertisement for recruitment was issued on 1.1.2011. At the time of issuance of the advertisement, there were no statutory recruitment rules for any of the posts. The eligibility criteria and other conditions were fixed by administrative decisions only. The advertisement clearly contained the scheme of selection, i.e., there would be shortlising of candidates which would be followed by interview. The advertisement also mentioned that candidates could be called for interview by relaxation of the criteria prescribed. Thus, from the advertisement itself it was clear that educational qualifications or other conditions were not rigid. A mere reading of the advertisement would reveal that different posts, including the post of CGM, were advertised. The numbers of posts advertised were approximate and were liable to undergo a change at the time of actual recruitment. PFRDA also reserved unqualified right for modifying the qualifications prescribed for each post. Advertisement also stated that simply by fulfilling the qualifications and experience, a candidate would not get entitled to be called for interview. Moreover, candidates may be called for interview after relaxation of qualifications prescribed.
17. The private respondents have further stated that the posts of CGM were very high level post and were not open to freshers or persons with only few years of experience. In the aforesaid background, the private respondents applied for these posts in the prescribed format fully disclosing their academic qualifications as well as marks. They were shortlisted and called for interview by giving necessary relaxation across the board keeping in mind that CGM was a very high level post and academic qualifications obtained decade back were of lesser importance as compared to work experience in the designated sector. This was evident from the counter affidavit of PFRDA in which the following has been stated :-
6. That the advertisement specified the procedure for selection i.e. short listing of candidates for interview by a screening committee and thereafter preparation of final merit list after assessment of the suitability of the short listed candidates in the interview. It was also mentioned that merely fulfilling the eligibility conditions as regards age/qualification/experience after short listing of candidates will not automatically entitle any candidate to be called for interview and it was also mentioned that the PFRDA reserves the right to relax any of the criteria/conditions in deserving cases. Those changes/relaxations were, however, made across the board while screening all applicants.
18. The private respondents have further stated that official respondents have also filled the format developed by the Screening Committee for the purpose of screening the candidates. In the said format, it is clearly shown that 20% marks were allocated to educational qualifications and 80% marks were allocated to work experience. The process note for developing these criteria, which is available at page 82 of the paperbook, says that a conscious decision was taken on account of high level of post. Thus, it is obvious that the screening criteria was consciously developed by giving relaxation of educational qualifications across the board and giving higher weightage to work experience.
19. Both the applicants herein also participated in the selection process. They were fully aware about the relaxation clause in the advertisement. They, did not, however, succeed in the selection process. Respondent nos.3, 4 and 5 were selected and all of them joined after accepting the offer and ever since they had been working in these positions. For joining PFRDA, these private respondents have given up their lucrative jobs in other organizations. Thus, respondent no.3 was working in Axis Bank from where he resigned for joining this post. Respondent nos.4 and 5 were working in IDBI Bank prior to joining PFRDA. Private respondents have further stated that their appointments have been challenged primarily on the following grounds:-
(a) They did not possess the prescribed qualifications;
(b) They had close proximity to the then Chairman of the PDRDA;
(c) Abnormally high marks were allotted in the interview; and
(d) Only two posts of CGM were advertised whereas three candidates were actually appointed.
20. Private respondents have argued that as far as first ground is concerned, their case is squarely covered by the law laid down by the Honble Supreme Court in the case of Smt. Swaran Lata vs. Union of India and others, (1979) 3 SCC 165, in which it was held that in cases where there were no recruitment rules for the concerned post and advertisement contained specifically the relaxation clause, unsuccessful candidates could not challenge the selection after fully participating in the same. The relevant part of the judgment reads as follows:-
51. It is undisputed that there is no statute or regulation having the force of law, by which any qualifications are prescribed for the post of Principal of the Institute. Nor has the Administrator framed any rules to regulate the method of recruitment to such post, or laying down the qualification necessary for appointment to the post of the conditions of service attached to the post. Thereafter, the Commission on February, 1, 1975 advertised the post with the essential qualifications as suggested, with a relaxation clause. It will therefore appear that in the instant case, the essential qualifications were prescribed by the Chandigarh Administration in consultation with the Commission and also that the Commission had, in the advertisement issued, reserved to itself the power to relax the qualifications in case of suitable candidates. Where qualifications for eligibility are not prescribed by rules, broad decisions as to the method of recruitment are taken in consultation with the commission. This requirement was fulfilled in this particular case. The Chandigarh Administration was fully aware that the commission had reserved to itself the power to relax the essential qualifications. The commission, therefore, acted within its powers to relaxing the qualifications of the candidates called for interview. In fact, the Chandigarh Administration ratified the action of the Commission in making the appointment. The appointment of Respondent No.6, Smt. Prem Lata Dewan cannot, therefore, be challenged on the ground that either the commission had no power to relax the qualifications or that she did not possess the minimum qualification prescribed for the post.
21. Relying upon the same judgment, the private respondents stated that in para 62 of the same following is laid down:-
62. In any event, the appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuasion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment. She therefore took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent no.6, by direct recruitment through Commission was invalid, as being contrary to the directions issued by the Central Government under Section 84 of the Act or that the Commission exceeded its powers by usurping the functions of the Chandigarh Administration, in relaxing the essential qualifications of the candidates called for interview or that respondent no.6 was not eligible for appointment in asmuch as she did not possesses the requisite essential qualifications. She fully knew that under the terms of the advertisement, the Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge, she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds.
22. Further the private respondents have contended that Honble Supreme Court has laid down in a number of cases that candidates who have taken part in the selection process cannot challenge the criteria of selection subsequently after failing in the same. The following judgments have been cited in this regard:-
(a) (2008) 4 SCC 171, Dhananjay Malik & Ors. Vs. State of Uttaranchal & Ors.;
(b) (2013) 11 SCC 309, Ramesh Chandra Shah Ors. Vs. Anil Joshi & Ors.;
(c) (2010) 12 SCC 576, Manish Kumar Shahi Vs. State of Bihar & Ors.; and
(d) (2011) 1 SCC 150, Virender Kumar Verma Vs. Public Service Commission, Uttarakhand (Head Note D).
23. The private respondents have further stated that this OA is clearly barred by limitation as well as delay and latches. This is because it was filed in October 2013 whereas the selection process had been completed and the selected candidates had joined their posts as early as on 31.5.2011. Thus, their selection was challenged almost after a gap of two and a half years counted from the date of their joining. They have relied on the judgment of the Coordinate Bench of this Tribunal in OA No.521/2008 (Tushar Ranjan Mohanty vs. Union of India) decided on 20.4.2008 wherein the following has been laid down:-
4. But we cannot but observe that the Application has been filed only on 25.02.2008 when, admittedly, the second respondent has been appointed on 21.02.2007 and has been occupying the said post for almost one year. Challenge to appointment of second respondent at this distant point of time, according to us, cannot be entertained. Of Course, the Administrative Tribunals Act, 1985 provides that an Application highlighting a grievance about service matter has to be placed before the Tribunal within a period of one year but the period of limitation so prescribed, according to us, cannot be deemed as relevant to the case, as challenge is to appointment made by a process of selection of a third person. The Honble Supreme Court indicated that such matters are to be brought to the attention of the Court within a limit of three months from the date of the order. The maximum limit had been suggested as six months. This is in public interest, as beyond such periods, the rights are to be deemed as settled.
24. The private respondents have further stated that the allegations that they were close to the erstwhile Chairman of PFRDA and have been selected because of their proximity to him, was based purely on conjectures and surmises. The applicants have not shown in their pleadings any concrete material to prove proximity of the selected candidates to the then Chairman. As such their allegations were of no legal consequence. In this regard, they have relied on the judgment of Honble Supreme Court in the case of Bank of India & Ors. Vs. T. Jogaram, (2007) 7 SCC 236, wherein it has been laid down that allegations of malafide must be proved beyond any reasonable doubt. On the same issue, private respondents have also cited (2008) 2 SCC 119, MV Thimmaiah & Ors. Vs. UPSC & Ors.
25. As regards appointment of three CGMs against two posts advertised, the private respondents have stated that the advertisement itself stated that the number of vacancies may undergo a change. Thus, there was hardly any infirmity in this and the arguments of the applicants deserved to be rejected out rightly.
26. The private respondents have further stated that the learned counsel for the applicants had relied on the judgment of Honble Supreme Court in the case of Ashok Kumar Yadav vs. State of Haryana, (1985) 4 SCC 415, regarding maximum percentage of marks that could have been allocated for interview. They have submitted that this citation is not relevant in the instant case because Ashok Kumar Yadavs case was that of an entry level post to which recruitment was made by written examination followed by interview. It was in that context that the Honble Supreme Court had laid down the proportion of marks to be given for interview. This law was not applicable in the instant case in which the recruitment to higher level post was involved and there was no written examination. In a subsequent case, (1998)3 SCC 694, Union of India Vs. Chandrasekharan & Ors., Honble Supreme Court have themselves distinguished the limited application of Ashok Kumar Yadavs judgment and have clarified that for higher level posts this does not apply.
27. Finally, the private respondents have stated that even equity was in their favour as they had resigned from their earlier higher ranking jobs and had put in two and a half years of service before this OA was filed. The selected candidates cannot now go back to their previous employers as their lien also has now been terminated.
28. We have heard both sides and perused the material on record.
29. The first ground taken by the applicants to challenge the appointment of private respondents is that respondent nos.3 & 4 did not possess the necessary educational qualifications nor did they have the prescribed post qualification experience. From the pleadings, it is clear that factually this is correct. Private respondent nos.3 and 4 did not have first class graduation degree. Moreover, their MBAs were not in Corporate Finance or Financial Management. Also these MBAs were obtained in the years 2003 and 2007 respectively which means that both these private respondents did not have the prescribed post qualification experience of 17 years. We, however, find merit in the arguments of private respondents that the advertisement itself stated that the prescribed criteria could be relaxed in deserving cases. It has also been stated that at the time of advertisement, no statutory Recruitment Rules for the post existed and all the eligibility conditions prescribed for recruitment were based on administrative decisions. Under such circumstances, the private respondent nos.3 and 4 cannot be faulted for believing that they were called for interview after having been given necessary relaxation in the educational qualifications as well as post qualification experience which they were lacking. It is not disputed by either of the parties that there was no misrepresentation on the part of the private respondents. In the prescribed format, their educational qualifications, marks obtained by them at different levels and the years in which they obtained their degrees were clearly mentioned. Even then the respondents shortlisted them for interview. While the official respondents may now state that shortlisting of private respondents was a mistake and no relaxation was given to any of the candidates, the private respondents cannot be faulted for believing that necessary relaxation had been granted in their cases. Moreover, Respondent No.1 has admitted in the reply that during the selection process, respondent no.2 vide his note dated 18.3.2011 assigned 20% weightage to educational qualifications and 80% weightage for work experience and by his doing so, these conditions had seized to be qualifying conditions. This effectively meant that even if a candidate did not have necessary educational qualifications he would get zero marks in that attribute yet remain eligible for further consideration. Similarly, a candidate not having the necessary work experience would get zero marks in that attribute but could still be considered for selection. Since official respondents themselves had changed this condition, they cannot now question the selection of private respondent nos.3 and 4 on the ground that these two private respondents did not possess the necessary eligibility qualifications and experience and should have been rejected at the threshold. Hence, we hold that the selection of respondent nos.3 and 4 could not be held to be invalid on the ground that they did not possess the necessary educational qualifications or post qualification experience.
30. The second ground taken by the applicants is that abnormally high marks were allotted for interview giving rise to favoritism and nepotism. The applicants in this regard have relied on the judgment of Honble Supreme Court in the case of Ashok Kumar Yadavs case (supra). The private respondents on the other hand have stated that this judgment does not apply for higher level posts as clarified by the Honble Supreme Court in the case of N. Chandrasekharan and others (supra). We have gone through these judgments and we are in agreement with private respondents. It is only for entry level posts where selection are held on the basis of written examination followed by an interview that the Honble Supreme Court had fixed the limit for proportion of marks to be allotted for interview. This cannot be valid for higher level selection made without any written examination purely based on interview. Hence, this argument of the applicants is also not sustainable.
31. The applicants have also challenged the selection on the ground that the selected candidates were selected due to their proximity to the then Chairman of PFRDA respondent no.2. However, no evidence had been adduced by the applicants to establish this allegation. In absence of any such evidence, it is not possible for us to accept their argument and hold that there was any malafide in selection of the private respondents. We, therefore, have to reject this argument as well.
32. The argument that three CGMs selected as against two posts mentioned in the advertisement also needs to be rejected out rightly. This is because admittedly the advertisement itself stated that the number of posts mentioned therein may undergo a change. Thus, there was nothing wrong in recruiting three persons as CGM when another vacancy had arisen.
33. Finally, we find merit in the contentions of the private respondents that this OA is barred by limitation as well as delay and latches. We notice that this OA has been filed on 24.9.2013 whereas private respondent nos.3 and 4 had joined their posts on 31.5.2011 and private respondent no.5 had joined on 22.9.2011. The applicants could argue that it was only through their RTI application that they came to know of the details of selection. Thereafter, they made representations on 18.4.2012 and 3.7.2012. When no response was received to their representations, they filed this OA. Under normal circumstances, we would have taken a sympathetic view to entertain even a delayed Original Application to render substantive justice. However, in this case, we notice that entertaining this OA would unsettle the long standing position of the private respondents in as much as they had resigned from their previous job and had been working for almost two and a half years in their present positions by the time this OA was filed. Meanwhile their lien on previous posts also got terminated. Under these circumstances, we are not inclined to condone delay in filing this OA.
34. Thus, on merits as well as on the ground of delay, we dismiss this OA. No costs.
OA 937/2014This OA has been filed by private respondent no.3 of OA No.3695 of 2013 seeking the following reliefs:-
8.1 to allow the present Application;
8.2 to quash the impugned Termination Order dated 13.03.2014 (Annexure : A-1) as violative of the extant law;
8.3 to quash the impugned Show Cause Notice dated 21.02.2014 (Annexure : A-2) as violative of the extant law and to direct Respondent No. 1 to reinstate the Applicant to the post held by him immediately prior to the impugned Termination Order dated 13.03.2014 (Annexure : A-1) with all consequential benefits;
8.4 to direct Respondent no.1 to reinstate the Applicant to the post held by him immediately prior to the impugned Termination Order dated 13.03.2014 (Annexure : A-1) with all consequential benefits;
8.3 to issue any such and further orders/directions this Honble Tribunal deems fit and proper in the circumstances of the case; and 8.4 to allow exemplary costs of the application.
2. As discussed above, the official respondent no.1 had first appointed the applicant herein as Chief General Manager but had later on quashed his appointment after finding certain irregularities in the selection process. In our judgment in OA No.3695/2013, we have found the appointments of private respondents therein to be valid and have dismissed the challenge made to their appointments. In view of the judgment in the above OA No.3695/2013, the termination order dated 13.3.2014 is unsustainable. We, therefore, allow this OA and quash the impugned termination order dated 13.3.2014 and show cause notice dated 21.2.2014. No costs.
3. During the course of arguments, the official respondent no.1 had stated that the applicant herein has been on unauthorized absence from September, 2014 and is reported to be staying in the United States without sanctioning of any leave by respondent no.1. We make it clear that we have not gone into this aspect at all in this OA and the respondent no.1 is at liberty to deal with unauthorized absence of the applicant herein in accordance with the rules.
4. Let a copy of this Order be placed in another connected file.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
/ravi/