Central Administrative Tribunal - Delhi
Shri Kishan Bansal vs National Highways Authority Of India on 30 October, 2014
Central Administrative Tribunal Principal Bench, New Delhi. OA-1275/2014 MA-1117/2014 Reserved on : 27.10.2014. Pronounced on: 30.10.2014. Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) 1. Shri Kishan Bansal, Technical Manager, S/o late Sh. Mohan lal Bansal, R/o 1331/5, Patel Nagar, Gurgaon-122001. 2. Sh. Purna Chandra Kahili, Technical Manager, S/o Sh. Rasaraj Kahili, R/o Flat No. 550, Pocket-16, Sector-3, Dwarka, New Delhi-75. . Applicants (through Sh. A.K. Behera, Advocate) Versus National Highways Authority of India Through its Chairman, G-5 & 5, Sector-10, Dwarka, New Delhi-75. . Respondent (through Ms. Swati Sumbly, Advocate) O R D E R
Sh. Shkehar Agarwal, Member (A) MA-1117/2014 for joining together in one application is allowed.
2. The applicants were working as Technical Assistants in the office of the respondents when in November, 2011 the respondents advertised 100 posts of Manager (Technical) to be filled up by promotion from amongst Technical Assistants. According to the applicants they were also eligible to be considered and therefore they applied for the same. However, in the Screening Committee meeting held on 13.01.2012 they were declared ineligible for consideration. The applicants then filed OA Nos. 298/2012 and 299/2012 before this Tribunal challenging the aforesaid decision of the Screening Committee. On 30.01.2012, as an interim measure, this Tribunal directed that two posts of Manager (Technical) (one in each OA) would not be filled up. Finally, the OAs were decided on 11.12.2012 and directions were given to the respondents to consider the applicants eligible for promotion. The respondents decided to implement the decision of the Tribunal. Meanwhile, during the intervening period some persons were selected as Manager (Technical) on the basis of assessment of their ACRs. On 22.11.2013 the respondents issued O.M. directing the applicants to appear in a written test and interview for consideration for promotion purportedly in compliance of the judgment of this Tribunal. The applicants protested against the same and issued a legal notice on the same date. However, they were made to appear in the written test on 28.11.2013. On 09.12.2013 the applicants again issued a fresh legal notice. On 16.12.2013 the respondents issued an order by which it was declared that the applicants had not qualified in the written test. Aggrieved by the decision of the respondents the applicants have filed this O.A. before us.
3. The applicants counsel argued that the respondents had initially declared the applicants ineligible for consideration of promotion. They then approached this Tribunal by means of OA Nos. 298/2012 and 299/2012. The Tribunal allowed these OAs and directed that respondents considered the applicants eligible for consideration for promotion. Meanwhile on 09.05.2012 a meeting of the Selection Committee was held in which suitability of 26 candidates for promotion to the post of Manager (Technical) was assessed based on their qualifications, experience, age and record of performance as discernible from their applications and ACRs. Since the applicants had been declared ineligible, they were not considered in the aforesaid Selection Committee. However, after the Tribunal had declared them eligible, it was incumbent on the respondents to hold a review of the aforesaid Selection Committee and consider the cases of the applicants as well. This review should have been held on the same parameters on the basis of which 26 candidates had been selected earlier. As is clear from the minutes of the Selection Committee meeting available on pages 51 & 52 of the paper-book, these selections were held only on the basis of qualification, experience, age and record of performance of the candidates. No written test or interviews were held. Learned counsel stated that the respondents have, therefore, erred in asking the applicants to appear for written test and interview for promotion.
4. The respondents have not disputed the facts of the case as narrated above in their reply. They have further stated that a Selection Committee was constituted to consider the cases of the applicants. This Committee had found the applicants to be ineligible. Thereafter, a review Selection Committee was held which gave a divided decision with respect to the eligibility of the applicants. In view of there being no unanimity in the decision of the Review Selection Committee, their recommendations were placed before the Chairman, NHAI for appropriate decision. The Chairman then decided that a suitable test be conducted to assess the technical ability of the applicants. Thereafter, a Selection Committee was constituted on 26.08.2013 to prepare the modalities of the test. The Committee decided to assess the technical ability of the candidates through both written test and interview. Accordingly, the applicants appeared for written test and interview on 28.11.2013 and 29.11.2013 respectively in which they did not qualify. The respondents have further stated that as per NHAI (Recruitment, Seniority and Promotion) Second Amendment Regulations, 2009 published vide Gazette Notification dated 13.10.2009 written test and interview are prescribed for selection of candidates for the posts included in the Regulations. Learned counsel for the respondents argued that the respondents were, therefore, within their rights to hold written test and interview for deciding the suitability for promotion of the applicants.
5. We have considered the submissions of both sides and have perused the material on record. While it is not disputed that the amended Regulations of NHAI do provide for written test and interview before promoting candidates to higher posts, this was a case of review Selection Committee. The review was to be held in respect of the applicants to rectify the mistake which had occurred vis-a-vis the applicants while holding the earlier Selection Committee in which the applicants were wrongly declared as ineligible for consideration. In our opinion, this review should have been held on the same parameters on which earlier selection was made. The respondents were required to transpose themselves to the date of earlier Selection Committee and assess the applicants based on the situation as it existed then. Even the record of performance of the applicant as it existed at that time needed to be considered and any subsequent development or event or ACR was to be ignored. Since it is not disputed that in the earlier selection no written test or interview was held, the respondents could not have prescribed the same while conducting the review Selection Committee. Therefore the respondents have clearly erred in asking the applicants to appear for a written test and interview for promotion.
6. We, therefore, allow this O.A. and direct the respondents to reconsider the cases of the applicants for promotion to the post of Manager (Technical) by holding a review Selection Committee in the light of the observations made above. In case the applicants are found fit they will be so promoted with consequential benefits of seniority and pay fixation. These benefits will be extended to the applicant within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/