Central Administrative Tribunal - Ahmedabad
Sanjay Kumar Yadav vs National Highways Authority Of India on 16 March, 2023
Present judgment is modified vide order
dated 16.03.2023
::1 :: OA No 364/2019 .
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No.364/2019
Dated the 24th day of February, 2023.
Reserved on: 02.02.2023
Pronounced on: 24.02.2023
CORAM:
Hon'ble Justice Rameshwar Vyas, Member(J)
Hon'ble Dr. A. K. Dubey, Member(A)
1. Sanjay Kumar Yadav,
Son of late Yudhishthir Yadav,
Aged 41 years,
Working as Manager (Tech) (NHAI), Ahmedabad,
Ahmedabad
Bench
Residing at: A/62, Orchid White Field,
Makarba Road, Near Vodafone Hose,
Prahladnagar, Ahmedabad - 380 051.
... Applicant
(By Advocate Shri Joy Mathew)
V/s.
1. Union of India, Notice to be served through
The Secretary to the Government of India,
Department of Personnel & Training,
North Block, New Delhi - 110 001.
2. National Highways Authority of India,
Notice through the Chairman,
G-56, Sector-10, New Delhi - 110 075
3. The General Manager (Admn-HR),
National Highways Authority of India,
G-56, Sector -10, New Delhi - 110 075.
4. The Executive Committee,
National Highways Authority of India,
G-56, Sector -10, New Delhi - 110 075.
5. Shri Mudit Garg,
Deputy General Manager,
House No-518, Niti Khand-1, Indirapuram,
Ghaziabad- 201 001.
... Respondents
(By Advocate Mr. Maulik Nanavati)
Present judgment is modified vide order
dated 16.03.2023
::2 :: OA No 364/2019 .
ORDER (ORAL)
Per: Hon'ble Dr. A. K. Dubey, Member (A)
1. Aggrieved by the impugned office order dated 26.09.2017 (Annexure A/1) and order dated 27.10.2017 (Annexure A/2), the applicant has filed this OA with prayer to quash these two impugned orders and to direct the respondents to consider and promote the applicant as DGM (Tech) w.e.f. 26.09.2017 (since his junior was promoted) with all consequential benefits as also payment with interest of the consequential benefits.
2. The case of the applicant is that while working as Asst. Manager in SAIL, he responded to the advertisement in employment news dated 15.03.2014 (Annexure A/3) by NHAI under Ministry of Ahmedabad Bench Road, Transport & Highway for filling up 50 posts of Manager (Tech). However, the NHAI selected only 37 applicants including the applicant at Sr. No. 11 in merit list (Annexure A/4). Appointment letter dated 11.09.2014 (Annexure A/5) on direct recruitment basis was issued to the applicant.
2.1 Vide communication dated 30.01.2017 (Annexure A/7) draft seniority list of Manager (Tech) in NHAI was circulated. Then a circular dated 22.05.2017 (Annexure A/8) was issued by the respondents inviting eligible Managers (Tech) in NHAI to apply for consideration for promotion to the post of DGH (Tech). The applicant too applied vide his letter dated 01.06.2017 (Annexure A/9). Respondents notified an eligibility list on 28.07.2017 (Annexure A/10). This list showed the applicant as ineligible. Noticing this, the applicant preferred a representation dated 03.08.2017 on the issue of eligibility wherein he also quoted relevant recruitment rules etc. When nothing happened, yet another representation was given on 17.09.2018 (Annexure A/13) giving reference, rules, and other instructions governing the issue. Meanwhile the organization also went ahead with inviting applications for the post of Deputy General Manager on Present judgment is modified vide order dated 16.03.2023 ::3 :: OA No 364/2019 .
promotion/ deputation basis (Annexure A/16). However, the grievance continues to remain unresolved.
2.2 On the same issue, the Chandigarh Bench of this Tribunal had ordered in OA No. 586/2018 01.05.2019 that the decision taken by the respondents declaring the applicants therein ineligible on the ground of being short of experience was contrary to the rules and the OM dated 25.03.1996 and therefore, the order declaring the applicants therein as ineligible was quashed and set aside. The chandigarh Bench of this Tribunal also ordered to treat the applicants therein and consider for promotion from the date their junior was promoted (Annexure A/17). The applicant preferred yet another representation dated 20.06.2019 (Annexure A/19) on the Ahmedabad same issue. He has also brought on record a copy of the note dated Bench 09.05.2018 (Annexure A/20).
2.3 The applicant was given promotion w.e.f 12.06.2020 but seniority and the consequential benefits are the issues because if the extant rules are taken into account, he attained eligibility on the date their juniors were promoted i.e., 26.09.2017.
3. The applicant has also moved MA No. 384/2019 for condonation of delay of a little over a year.
4. The matter came up for hearing. The counsel of respective parties put forth their arguments and learned counsel for the applicant emphasized that in view of the fact that as per the extant rules the applicant did have the requisite number of years of service to make him eligible for consideration, treating him ineligible for consideration was bad in law and legally unsustainable besides being discriminatory. The counsel for the respondents however submitted that any decision has to be in accordance with the extant rules.
5. Heard learned counsel for the parties and perused the material available on record. Learned counsel for the applicant during Present judgment is modified vide order dated 16.03.2023 ::4 :: OA No 364/2019 .
arguments submits that similarly situated Manager approached the Central Administrative Tribunal of Chandigarh Bench by filing OA No. 586/2018 whereby the Tribunal had observed in its decision dated 01.05.2019 as under:-
"In view of this, we are of the considered view that decision taken by the respondents declaring applicant ineligible on the ground of being short of experience is contrary to rules and OM dated 25.03.1996, therefore, their action and impugned orders in declaring the applicant as ineligible is quashed and set aside and respondents are directed to treat him eligible and consider his case for promotion as DGM (T) from the date when persons junior to him were so promoted, and if found eligible, he be given relief with all consequential benefits arising out of it, within a period of two months from the date of receipt of a certified copy of this order".
Learned counsel for the applicant submits that this order of the Chandigarh Bench has been upheld by the Hon'ble High Court of Ahmedabad Bench Punjab and Haryana in its decision in CWP No. 1596/2021 dated 07.05.2022. He also submits that this upholding by Hon'ble High Court of Punjab and Haryana was challenged by the respondents in Hon'ble Apex Court by way of SLP (Civil) 25204/2022 wherein Hon'ble Apex Court was pleased to clarify that the petitioner authority (respondent in this case) would examine the respondents (the applicants herein) case/claim for promotion on merits treating the respondents as eligible for being considered for promotion. While dismissing the SLP, Hon'ble Apex Court has kept the question of law open.
6. Learned counsel for the applicant submits that the case of the applicant is squarely covered by the judgment referred above. Therefore, he prays to decide this matter in the light of the above said judgment. Learned counsel for the respondents is not in a position to deny the above legal position as pre-pounded in the judgment referred above.
7. Having regard to the prayer made by the learned counsel for the parties and material available on record, this OA may be disposed of in the light of the judgment. Therefore, while allowing this OA, Present judgment is modified vide order dated 16.03.2023 ::5 :: OA No 364/2019 .
the respondents are directed to examine the applicant's claim for promotion in the light of the principles as laid down in the above judgment and take decision within two months from the date of receipt of copy of this order.
(A K Dubey) (Rameshwar Vyas)
Member(A) Member(J)
PA
Ahmedabad
Bench