Central Administrative Tribunal - Delhi
Vishnu Darbari vs Ministry Of Road Transport And Highways on 1 October, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 4251/2014
Reserved on:30.09.2015
Pronounced on:01.10.2015
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Vishnu Darbari
S/o Late Padmashir L.S. Darbari
Age:54 years
General Manager,
Regional Office, Kerala,
National Highways Authority of India,
29/1539/1, Rajasree, Kairali Lane,
Perumthanni, Vallakadavu,
P.O. Trivandram-695008
Kerala.. ..Applicant
By Advocate: Shri Nidesh Gupta, Sr. Counsel with Shri Tarun
Gupta.
Versus
1. Ministry of Road Transport and Highways
Through its Secretary,
1, Transport Bhawan,
Sansad Marg,
Parliament Street,
New Delhi-110001.
2. National Highways Authority of India
Through its Chairman,
G-5 & 6, Sector-10,
Dwarka,
New Delhi.
3. Shri V.K. Sharma
CGM (LA),
National Highways Authority of India
G-5 & 6, Sector-10,
Dwarka,
New Delhi.
4. Mr. R.P. Singh
Chairman,
National Highway Authority of India,
G-5 & 6, Sector 10,
Dwarka,
New Delhi.
5. Mr. B.P. Kukrety
Ex. CGM (Planning & Quality)
National Highways Authority of
India,
Flat No.404, Kanak Durga,
CGHS Plot No.26,
Sector-12,
Dwarka,
New Delhi.
6. K.S. Money
General Manager,
National Highways Authority of India,
Vaidya Ratnam, P.S. Variers,
Arya Vaidyasala,
Kottakkal, Malappuram,
Kerla-676503. ..Respondents
By Advocates: Shri Jose Chiramel for Respondents No.1&2.
Shri A.K. Behera for Respondent No.3.
ORDER
Honble Mr. G. George Paracken, Member (J) This is the second round of litigation by the Applicant. He had earlier approached the Tribunal by filing OA No.1247/2013 as the Respondents did not consider his candidature for the post of CGM [(Land Acquisition/CGM) and HR] in the selection process that took place in the year 2009. This Tribunal, vide order dated 16.05.2014 allowed the aforesaid OA and held that the action of the Respondents in not considering his candidature was not sustainable in law. Accordingly, a direction was given to convene a Review Search-cum-Selection Committee and consider his candidature for selection/promotion to the post of CGM (LA)/CGM (Admn. & HR). While passing the aforesaid order, this Tribunal observed that the members of the Search-cum-Selection Committee had been misled and wrong facts were submitted to them by the official respondents. It was also held by this Tribunal that the reasons given for not considering his candidature were totally untenable and not sustainable in law. The relevant part of the said order reads as under:-
23. We have also considered the submissions of the learned counsel for the parties on merit. We fully agree with the learned Sr. counsel for the Applicant Shri Nidesh Gupta that the Search-cum-Selection Committee at its meeting held on 18.06.2009 did not consider the Applicant to the posts of CGM (LA) and CGM (A&HR) as its members were mislead and made them believe wrongly that the Applicant was Not eligible, as a penalty has been awarded to the officer and the currency of punishment is valid till 30.06.2010. Admittedly, the penalty of withholding two increments with cumulative effect inflicted upon the Applicant by the Disciplinary Authority vide its order dated 17.12.2008 has been reduced by the Appellate Authority to that of withholding of increment for one year without cumulative effect, vide order dated 03.06.2009. It is a well settled law that the order of the Disciplinary Authority merges with that of the Appellate Authority. Therefore, the currency of punishment against the Applicant was only up to 16.12.2009 and not up to 03.06.2010 as intimated to the Screening Committee. If the said Committee was rightly informed that the currency of punishment would be over by 16.12.2009, its decision in the case could have been different. Further, the Search-cum-Selection Committee has never been informed about the instructions to be followed in such situation. On the other hand, the General Manager (HR) in his note dated 05.06.2009 had earlier advised the then Chairman, NHAI that the Applicant was eligible after currency of punishment was over. The said advice was never brought to the notice of the Search-cum-Selection Committee met on 18.06.2009. Later on, it is seen that the Respondent No.1-NHAI itself has referred to the instruction in this regard issued by the FOP&T vide its OM No.22034/5/2004-Estt (D) dated 15.12.2004 in their note extracted elsewhere in this order. According to the said OM, a Government servant, on whom a minor penalty of withholding of increment etc. has been imposed should be considered for promotion by the Departmental Promotion Committee (in case of NHAI officers for promotion to the CGM level posts) which meets after the imposition of the said penalty and after due consideration of full facts leading to imposition of the penalty, if he is still considered fit for promotion, the promotion may be given effect after the expiry of the currency of the penalty. However, contention of the learned counsel for the Respondents was that no promotion but only selection by the Search Committee was involved in the matter. Such a contention has no merit. Applicant being an internal candidate, as per the advertisement itself, if selected, has to be considered as promoted.
24. Again as rightly contended by the learned counsel for the Applicant, the Search-cum-Selection Committee was misinformed that the Applicant was not eligible for consideration without bringing the actual rule position to its notice. According to Regulation 13 of National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996, prescribed list of minor penalties are (i) Reprimand; (ii) Withholding of increment or promotion; (iii) Demotion to a lower post or grade or to a lower stage in his incremental scale; and (iv) Recovery from pay of the whole or part of any pecuniary loss caused to the Authority by the officer or employee. From the said list, it is seen that withholding of increment and withholding of promotions are two different and distinctive minor punishments. The Disciplinary Authority can impose only either of them and not both. The penalty imposed upon the Applicant is undoubtedly withholding of increment. While imposing the said penalty upon the Applicant, the Disciplinary Authority was, no doubt, guided by the said regulations. Again, that was the very reason that the General Manager (HR) in his note dated 05.06.2009 informed the Chairman that the Applicant will be eligible for promotion after the currency of the punishment was over. But in the statement submitted to the Screening Committee later, the office, inadvertently or purposely, suppressed the said information and misinformed them that the Applicant was not eligible, as a penalty has been awarded to the officer and the currency of punishment is valid till 30.06.2010. Of course, without any application of mind and without considering the rule position, the Search-cum-Selection Committee has also mechanically followed the advice of the Screening Committee and did not consider the Applicant at all.
25. During the course of the argument, however, a vain attempt was made on behalf of the Respondents that the penalty of withholding the promotion was as a consequence of the punishment of withholding of increment. In our consideration, the Rule makers were very clear in their mind. They have prescribed withholding of increments as alternative punishment. In other words, an employee may be imposed with the penalty of withholding of increment or in the alternative withholding the promotion. In other words, withholding of promotion and withholding of increments are two different and distinctive minor penalties as prescribed in Rule 11 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 which reads as under:-
The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:-
Minor Penalties -
(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;
(iii a) reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.
(iv) withholding of increments of pay.
If the intention of the rule makers was not otherwise, they could have simply followed the list of minor penalties mentioned in the CCS (CCA) Rules as aforesaid.
26. The Honble Supreme Court in Shiv Shakti Co-operative Housing Society vs. Swaraj Developers AIR 2003 SC 2434 observed as under:-
"It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent."
The Apex Court again in its judgment in Union of India and another vs. Hansoli Devi and others 2002(7) SCC observed as under:-
"It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act."
In its judgment in the case of B. Premanand and Others Vs. Mohan Koikal and Others 2011 (4) SCC 266, the Apex Court held as under:-
16. Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. vs. C.I.T. 2003(5) SCC 590. It is only where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction vide Narsiruddin vs. Sita Ram Agarwal AIR 2003 SC 1543. Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji vs. Sub-Divisional Officer, Thandla 2003(1) SCC 692.
27. In any case, mere pendency of a minor penalty is not a good and valid reason for denial of consideration for promotion by the competent authority. The general principle in this regard has been laid down by the Government of India, Department of Personnel & Training vide its OMs dated 15.05.1971 and 16.02.1979 to the effect that a Government servant, on whom a minor penalty of withholding of increment, etc., has been imposed should be considered for promotion by the Departmental Promotion Committee which meets after the imposition of the said penalty and after due consideration of full facts leading to imposition of penalty, if he is still considered fit for promotion, the promotion may be given effect after the expiry of the currency of the penalty. Therefore, even though those employees against whom minor penalty is pending and those employees against whom no such penalties are pending cannot be treated at par, the former cannot be denied the right of consideration and if found eligible and fit, promotion after the currency of the penalty is over. The case of the Applicant in this case is also not promotion along with those who have been found fit and having no penalty pending against him. His case is that he should have been considered for promotion and if otherwise found fit, he could be given promotion after the currency of penalty was over. In his case, admittedly the Search-cum-Selection Committee met on 18.06.2009 and the currency of the penalty imposed upon him was to be over by 16.12.2009. The Search-cum-Selection Committee had no occasion to consider the said fact. In our considered view, it was nothing but a mistake on the part of the Respondents but it has greave adverse impact on the Applicants career prospect. The Apex Court in Nirmal Chandra Bhattacharjee Vs. Union of India 1991 (Supp.2) SCC 363 held that rules do not work to prejudice if an employee who was already in service and the mistake on the part of the Department should not be permitted to recoil on the employee. The relevant part of the said judgment is as under:-
5. One of the principles of service is that any rule does not work to prejudice of an employee who was in service prior to that date. Admittedly the vacancies against which appellants were promoted had occurred prior to restructuring of these posts. It is further not disputed that various other posts to which class `IV' employees could be promoted were filled prior to 1/08/1983. The selection process in respect of Ticket Collectors had also started prior to 1/08/1983. If the department would have proceeded with the selection well within time and would have completed it before 1/08/1983 then the appellants would have become Ticket Collectors without any difficulty. The mistake or delay on the part of the department, therefore, should not be permitted to recoil on the appellants. Paragraph '31' of the restructuring order itself provides that vacancies in various grades of posts covered in different categories existing on 31/07/1983 would be filled in accordance with the procedure which was in vogue before 1/08/1983.
The Apex Court again reiterated the aforesaid principle in its subsequent judgment in State of U.P. and Others Vs. Mahesh Narain Etc. 2013 (4) SCC 169. The relevant part of the said judgment is as under:-
This Court therefore, restored the promotion order of the employees to which they were entitled prior to the change of service rules as it was held that the change of service rules cannot be made to the prejudice of an employee who was in service prior to the change. The Court further went on to hold that if the delay in promotion takes place at the instance of the employer, an employee cannot be made to suffer on account of intervening events.
15. The principle laid down in the aforesaid case aptly fits into the facts and circumstances of this case as the subsequent amendment of 1990 laying down to fill in all the posts of Assistant Director Forensic Science by direct recruitment could not have been applied in case of the respondents who were already holding the post of Scientific Officer and hence were eligible to the promoted quota of 25% posts of Assistant Director after completion of five years of service as Scientific Officers in terms of the Rules of 1987 and, therefore, their experience of five years on this post could not have been made to go waste on the ground that the amendment came into effect in 1990 making all the posts of Assistant Director to be filled in by direct recruitment. In support of this view, the counsel for the Respondents also relied on the decision of this Court in the matter of B.L. Gupta & Anr. vs. M.C.D. reported in (1998) 9 SCC 223 wherein this Court had held that any vacancy which arose after 1995 were to be filled up according to rules but the vacancies which arose prior to 1995 should have been filled up according to 1978 rules only.
28. The Apex Court in the case of Delhi Jal Board Vs. Mahinder Singh 2000 (7) SCC 210 (supra) has held in clear terms that right to be considered by a Selection Committee is a fundamental right.
29. As far as the contention of the Respondent-NHAI that the Recruitment Regulations have since been amended vide Notification dated 21.08.2013 changing the eligibility condition for the post of CGM (LA) and CGM (Admn.& HR) and fresh advertisement has been issued on 17.09.2013, the settled law is that the right of consideration for promotion/selection is in accordance with the Recruitment Regulation prevalent at the time of issuing the advertisement. The Apex Court in the case of Y.V. Rangaiah and Others Vs. J. Srinivasan Rao and Others 1983 SCC (L&S) 382 held that vacancies which have occurred prior to amendment of Recruitment Rules, would be governed by the old Recruitment Rules and not by the new Recruitment Rules. Admittedly, the advertisement for selection to the aforesaid posts was issued by the Respondent-NHAI in Regulation 2008 and the recruitment criteria at that time was Selection through Search-cum-Selection Committee (i) from internal candidates holding the post of GM(Admn/HR/Environment/Land Acquisition) or equivalent on a regular basis for a period of at least six years and possessing the stipulated essential qualifications and experience or (ii) by deputation from officers under the Central Government etc. holding analogous posts on regular basis with three years of regular service in the post in the scale of Rs.16,400-20,000 or equivalent or with six years of regular service in the post in the pay scale of Rs.14,300-18,300 or equivalent. In accordance with the aforesaid rule, the General Manager (HR), vide his note dated 05.06.2009, has also found him eligible for promotion to the aforesaid post.
30. In the above facts and circumstances of the case, we allow the Original Application and set aside the impugned order dated 11.01.2013. Consequently, we quash and set aside the minutes of the Screening Committee dated 17.06.2009 and the minutes of the meeting/proceedings of the Search-cum-Selection Committee dated 18.06.2009 concerning selection to the post of CGM(LA)/CGM (HR & Admn.) qua the Applicant. We further direct the Respondent No.1-NHAI to convene a Review Search-cum-Selection Committee and consider the candidature of the Applicant for selection/promotion to the post of CGM(LA) and CGM (HR & Admn.). As regards the selection/promotion of Respondent No.2 as CGM (LA), it shall be subject to outcome of the Review Search-cum-Selection Committee directed to be held as above. As regards selection of Respondent No.3 as CGM (HR & Admn), as he has not joined the said post after selection, there shall be no order quashing his selection. However, in the interest of justice, we quash and set aside further the subsequent advertisement dated 17.09.2013 for selection to the post of CGM (Admn. & HR). Further, in our considered view, if the Applicant is found fit for selection/appointment as CGM (Admn. & HR) in the Review Search-cum-Selection Committee as ordered above, the appointment of the 2nd Respondent as CGM (LA) need not be disturbed. We also direct the Respondent-NHAI that in the event of selection/appointment of the Applicant based on the decision of the Review Search-cum-Selection Committee, he shall be entitled for all consequential benefits including notional promotion from the date the Respondent No.2 has been allowed to join the promotional post but he will not be entitled for any back wages based on the principles of no work no pay.
31. The Respondents shall comply with the aforesaid directions within a period of two months from the date of receipt of a copy of this order. No costs.
2. Pursuant to the aforesaid direction, a Review Search-cum-Selection Committee was convened by the Respondents on 30.06.2014. The Minutes of the said Committee is reproduced as under:-
Minutes of the Meeting of the Review Search-cum-Selection Committee held on 30.06.2014 for review of selection of candidates for the posts of CGM (LA) and CGM (Admn. & HR) vide Search-cum-Selection Committee Meeting dated 18.06.2009.
The meeting of the Review Search-cum-Selection Committee constituted to review the recommendations given by the Search-cum-Selection Committee in its meeting held 18.06.2009 for selection of the candidates for the posts of CGM (LA) and CGM (Admn. & HR) was held 30.06.2014 at Transport Bhawan, Parliament Street, New Delhi.
2. The following were present:
(i) Shri Vijay Chhibber, Secretary M/o RT&H - Chairman
(ii) Shri P. Dewan, Secretary, M/o Tourism - Member
(iii) Shri R.P. Singh, Chairman, NHAI - Member
(iv) Shri V.K. Gupta, DG, CPWD - Member
3. The Committee was informed that Search-cum-Selection Committee in its meeting held on 18.06.2009 had interalia recommended the following candidates for appointment to the posts of CGH (Land Acquisition) and CGM (Administration and Human Resources) as indicated below:
(i) Chief General Manager (Land Acquisition)
1. Shri V.K. Sharma Parent Department NHAI
(ii) Chief General Manager (Administration & Human Resources)
1. Dr. A.K. Malhotra Parent Department Forest Department, Govt. Of Jharkhand
4. The Committee was informed that Shri Vishnu Darbari filed OA No.1247/2013 in the Central Administrative Tribunal, Principal Bench, New Delhi, challenging, among other things, the non-consideration of his candidature for the posts of CGM (LA) and CGM (Admn. & HR). The CAT has delivered its judgment on 16.05.2014 and has inter-alia ordered that the (i) minutes of the Screening Committee dated 17.06.2009 and the minutes of the meeting/proceeding of the Search-cum-Selection Committee dated 18.06.2009 concerning selection to the post of CGM (LA)/ CGM (HR & Admn) qua the applicant are quashed and set aside; and (ii) NHAI is directed to convene a Review Search-cum-Selection Committee and consider the candidature of the applicant (Shri Vishnu Darbari) for selection/promotion to the post of CGM (LA) and CGM (HR & Admn).
5. The committee was further informed that the Screening Committee in its meeting held on 17.06.2009 for determining the eligibility of the candidates for different posts including the post of CGM (LA) and CGM (Admn. & HR) had declared Shri Vishnu Darbari as non-eligible for both the above posts for the reason that a penalty had been awarded to the officer and the currency of the punishment was valid till 30.06.2010. The CAT has now ordered vide its judgment dated 16.05.2014 for consideration of the candidature of Shri Vishnu Darbari for both the above mentioned posts by the Review Search-cum-Selection Committee.
6. In compliance of the order of CAT as given in its judgment dated 16.04.2014 in OA No.1247/2013, the Review Search-cum-Selection Committee has reviewed the earlier proceedings dated 18.06.2009 as under.
7. The Committee observed that there was one post each in the category of CGM (LA) and CGM (Admn. & HR).
8. The Committee decided to evaluate the candidates on the basis of their qualifications, experience and the assessment of their ACRs which were available at that point of time.
Review of the Selection of Candidates for the post of CGM (Land Acquisition)
9. The Committee observed that the following two candidates were shortlisted by the Screening Committee in its meeting held on 17.06.2009 for consideration by the Search-cum-Selection Committee for selection to the post of CGM (Land Acquisition):
(i) Col. P.K. Chaturvedi (Retd.) Parent Department EPFO
(ii) Shri V.K. Sharma Parent Department NHAI
10. The Committee observed that as per order of Cat, the candidature of Shri Vishnu Darbari is also to be considered for the post.
11. The Committee evaluated the ACRs the above mentioned three candidates as under:
(i) Col. P.K. Chaturvedi (Retd.)
(a) 01.04.2008 31.12.2008 - * Outstanding/VG
(b) 01.04.2007 31.03.2008 - * Outstanding/VG (c) 2006 2007 - * Outstanding/VG
(d) 2005 2006 - * Outstanding/VG
(e) Period ending 31.03.2005 - Very Good
(f) 01.09.2003 23.08.2004 - 9 (Outstanding)
(g) 01.09.2002 31.08.2003 - 9 (Outstanding) *(Grading based on entries against different columns as no overall specific grading given in the ACRs)
(ii) Shri V.K. Sharma
(a) 01.04.2007 31.03.2008 - 9 (Outstanding)
(b) 01.04.2006 31.03.2007 - 10 (Outstanding)
(c) 01.04.2005 31.03.2006 - 9 (Outstanding)
(d) 2004 2005 - (Outstanding)
(e) 2003 2004 - (Outstanding)
(f) 2002 2003 - (Outstanding)
(g) 2001 2002 - (Outstanding)
(iii) Shri Vishnu Darbari
(a) 2007 2008
(i) 28.05.2007 21.10.2007 4 (Average) *
(ii) 22.10.2007 31.03.2008 4 (Average) *
(iii) 01.04.2008 03.07.2008 4 (Average) *
(b) 01.04.2006 31.03.2007 - 7 (Very good)
(c) 2005 2006
(i) 01.04.2005 31.07.2005 7 (Very good)
(ii) 01.08.2005 31.12.2005 8 (Very good)
(d) 2004 2005 8 (Very good)
(e) 2003 2004 5 (Good)
(f) 2002 2003 5 (Good)
(g) 2001 2002 8 (Very good)
(h) October 1999 March 2001 - Very Good * As per Policy Circular No.11041/217/2007-Admn. Dated 17.06.2013, average score of Good is to be awarded for the marks between 4 and sort6 of 6.
12. The Committee also took note of the order dated 17.12.2008 of the Disciplinary Authority imposing the minor penalty of withholding of two increments with cumulative effect upon Shri V.S. Darbari, General Manager and also the order dated 03.06.2009 issued by the appellate authority modifying the penalty of withholding of increment for one year without cumulative effect.
13. The Committee, after assessment of the records, did NOT recommend the selection of Shri Vishnu Darbari as CGM (LA)(HR), having found that the recommendations given on 18.06.2009 by the then Committee do not require any change.
Review of the Selection of candidates for the post of CGM (Administration and Human Resource)
14. The Committee observed that the following two candidates were shortlisted by the Screening Committee in its meeting held on 17.06.2009 for consideration by the Search-cum-Selection Committee for selection to the post of CGM (Administration and Human Resources):
(i) Shri V.K. Sharma Parent Department NHAI
(ii) Dr. A.K. Malhotra Parent Department Forest Department, Jharkhand
15. The Committee observed that as per order of CAT, the candidature of Shri Vishnu Darbari is also to be considered for the post.
16. The Committee evaluated the ACRs the above mentioned three candidates as under:
(i) Shri V.K. Sharma
(a) 01.04.2007 31.03.2008 - 9 (Outstanding)
(b) 01.04.2006 31.03.2007 - 10 (Outstanding)
(c) 01.04.2005 31.03.2006 - 9 (Outstanding)
(d) 2004 2005 - (Outstanding)
(e) 2003 2004 - (Outstanding)
(f) 2002 2003 - (Outstanding)
(g) 2001 2002 - (Outstanding)
(ii) Shri A.K. Malhotra
(a) 2007 2008 - Outstanding
(b) 2005 2006 - Outstanding * * ACR written only upto the level of Reporting Officer.
(c) 2004 2005 - Outstanding * * ACR written only upto the level of Reporting Officer.
(d) 2003 2004 - Outstanding
(e) 2002 2003 - Outstanding
(f) 2001 2002 - Outstanding * * ACR written only upto the level of Reporting Officer.
(iii) Shri Vishnu Darbari
(a) 2007 2008
(i) 28.05.2007 21.10.2007 4 (Average) *
(ii) 22.10.2007 31.03.2008 4 (Average) *
(iii) 01.04.2008 03.07.2008 4 (Average) *
(b) 01.04.2006 31.03.2007 - 7 (Very good)
(c) 2005 2006
(i) 01.04.2005 31.07.2005 7 (Very good)
(ii) 01.08.2005 31.12.2005 8 (Very good)
(d) 2004 2005 8 (Very good)
(e) 2003 2004 5 (Good)
(f) 2002 2003 5 (Good)
(g) 2001 2002 8 (Very good)
(h) October 1999 March 2001 - Very Good * As per Policy Circular No.11041/217/2007-Admn. Dated 17.06.2013, average score of Good is to be awarded for the marks between 4 and sort of 6.
17. The Committee also took note of the order dated 17.12.2008 of the Disciplinary Authority imposing the minor penalty of withholding of two increments with cumulative effect upon Shri V.S. Darbari, General Manager and also the order dated 03.06.2009 issued by the appellate authority modifying the penalty of withholding of increment for one year without cumulative effect.
18. The Committee, after assessment of the records, did NOT recommend the selection of Shri Vishnu Darbari as CGM (HR) (LA), having found that the recommendations given on 18.06.2009 by the then Committee do not require any change.
19. The meeting ended with thanks to the Chair.
Sd/-
Chairman
Sd/- Sd/- Sd/-
Member Member Member
3. Thereafter, the Respondents, vide the impugned order dated 15.07.2014, informed him as under:-
AND WHEREAS in compliance of the Order of Honble CAT (PB), New Delhi, the advertisement dated 17.09.2013 was cancelled and a notice to this effect was published in two national daily news papers on 01.07.2014 and 02.07.2014.
AND WHEREAS in further compliance of the Order of Honble CAT (PB), New Delhi, a Review Search-cum-Selection Committee was convened and meeting of the Committee was held on 30.06.2014. The Review Search-cum-Selection Committee assessed and reviewed recommendations given on 18.06.2009 by the then Committee for selection to the post of CGM (LA) and also CGM (HR). The Committee did not recommend the selection of Shri Vishnu Darbari either as CGM (LA) and CGM (HR), having found that the recommendations given on 18.06.2009 by the then Committee do not require any change.
NOW THEREFORE the Order of Honble CAT (PB) in OA No.1247/2013 has been complied with.
4. The challenge in the present Original Application is to the alleged illegal action of the Respondents No.1 and 2 in not recommending the name of the Applicant for selection/promotion to the post of CGM(Land Acquisition)/CGM (Administration and HR) in the aforesaid Review Search-cum-Selection Committee held on 30.06.2014 under the directions of this Tribunal. According to the Applicant, he is fully eligible for selection and entitled to be appointed to the said post and fulfils the criteria laid down in the advertisement issued in respect of the said posts. His submission is that the Review Search-cum-Selection Committee did not give any valid reasons for not recommending his name for selection/promotion to the aforesaid posts. But from the narration of facts mentioned in the minutes, it is seen that the Review Search-cum-Selection Committee has again placed reliance on a minor penalty of withholding of two increments which had been imposed on the Applicant on 17.12.2008 reduced to withholding of one increment without cumulative effect by the Appellate Authority on 30.06.2009. The said reliance had already been found to be invalid by this Tribunal in its earlier order which has attained finality. Therefore, the said penalty could not have considered by the Review Search-cum-Selection Committee and the Applicant could not have been denied promotion/selection on the basis of the said penalty as is clear from Regulation 13 of NHAI which reads as under:-
13. Penalties: Subject to the provisions of sub-regulation (2), an officer or employee who commits a breach of any provisions of these regulations or who displays dishonesty, negligence, irregular attendance, inefficiency or drunkenness, indolence or who knowingly does anything detrimental to the interests of the Authority or in disobedience with its instructions, or who commits a breach of disobedience or is found to possess wealth disappropriate to his known source of income shall be liable to the following penalties:-
Minor penalties
(i) Reprimand;
(ii) Withholding of increment or promotion;
(iii) Demotion to a lower post or grade or to a lower stage in his incremental scale;
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to the Authority by the officer or employee.
Major penalties
(i) Compulsory retirement;
(ii) Removal from service
(iii) Dismissal.
5. The Applicant has further submitted that it is well settled that the Review DPC or the Review Search-cum-Selection Committee has to apply the same yardstick as had been applied by the original DPC or the original Review Search-cum-Selection Committee and it cannot be altered or modified in the Review. Adopting different criteria for different candidates for selection/promotion to the same post during the same year violates Article 14 of the Constitution of India. However, in the present case, a completely different yardstick has been applied by the Review Search-cum-Selection Committee in a totally mala fide manner so as to deny promotion to the applicant. In the meeting of previous Search-cum-Selection Committee dated 18.6.2009 it was decided by the Committee to evaluate the candidates on the basis of their qualifications, experience, details of professional competence and assessment of ACRs for the last five years. But the Review Search-cum-Selection Committee illegally changed the aforesaid criteria. Most of the earlier factors were also ignored. The words assessment of ACRs for last five years have been deliberately substituted by words assessment of their ACRs which were available at that point of time. According to the Applicant, a perusal of the minutes of the meeting of the review Committee would further show that it deliberately gave much emphasis on the ACRs which was not before the earlier Search-cum-Selection Committee. Moreover, while giving description regarding his ACRs, his various other ACRs which had been graded as outstanding, have been deliberately intentionally and intentionally omitted. According to the Applicant those things have been done in a mala fide manner so as to prejudice the Committee against him. He has, therefore, contended that the action of the respondents in not recommending his candidature for selection to the post of CGM (LA)/CGM (Admn. & HR) by altering the criteria, is per se bad in law as the same is actuated with mala fide.
6. The Applicant has also alleged mala fide and ill-will on the part of the official respondents, particularly, Respondent No.4 Mr. R.P. Singh and Respondent No.3, Mr. V.K. Sharma. The mala fide on their part is established from the fact that they have deliberately furnished wrong information to the Review Search-cum-Selection Committee in his case with an ulterior motive to deprive him promotion/selection. He has pointed out that in the evaluation sheets supplied to the Review Search-cum-Selection Committee, in the column vigilance status it has been mischievously mentioned in his case that vigilance case was pending against him whereas no such case was pending. But in the previous meeting of Search-cum-Selection Committee held on 18.6.2009, it was stated by the Respondents that no vigilance case was pending against him. There is no change in the position after the said meeting and no vigilance case has been pending against him.
7. The Applicant has also alleged that, in furtherance of their malafide intentions, he was being harassed by the Respondents after the earlier order of this Tribunal dated 16.05.2014 and on 23.6.2014. The Respondent No.2, in connivance with Respondent no.3, gave the charge of RO to someone else and he was made to work as GM in the office of RO. He who was earlier the incharge of the entire Region, has been reduced to a lower level in the same office. Same has been done in a malafide manner so as to spite him out of ill will and personal vendetta.
8. Similarly on 1.7.2010, 17.12.2013 and 24.06.2014, he had made representations against the illegal downgrading of his ACR for the year 2007-2008. He sent various reminders but his representation was not decided. However on 23.6.2014 i.e the same day on which charge of RO was taken away from him, and on the eve of the meeting of Review search cum Selection Committee which was held on 30.06.2014, his aforesaid representation against the downgrading of ACR was rejected. The timing and manner in which the same has been done, clearly shows that the Respondents were mischievously trying to jeopardize this career in a completely mala fide manner. He has, therefore, submitted that the ACRs for the years 2002-03, 2003-04 and 2007-08 could not be acted upon and could not form the basis of any future course of action since the said ACRs were never communicated to him. It is settled law that all ACRs are required to be communicated to the concerned persons. This is more so in cases where the alleged ACR is resulting in severe consequences being effected against the concerned person. Therefore, he immediately applied for copies of ACRs under Right to Information Act. On receiving the ACRs under RTI, he was shocked to learn that his ACR for the year 2007-08 has been written by Mr. B.P. Kukrety, although he was not competent to do so and the ACR has been graded as average which was contrary to his performance. He immediately filed a representation against the said action of the Respondents. Similarly ACRs for the years 2002-03 and 2003-04 were also sent to him only after a note was sent by him requesting for the said ACRs. He has also given the following chart showing the grading given in his ACRs for different years:
YEAR GRADING 1989-90 OUTSTANDING 1990-91 VERY GOOD 1991-92 OUTSTANDING 1992-93 OUTSTANDING 1993-94 OUTSTANDING 1994-95 VERY GOOD 1995-96 OUTSTANDING 1996-97 OUTSTANDING 1997-98 OUTSTANDING 1998-99 VERY GOOD 1999-2000 VERY GOOD 2000-2001 VERY GOOD 2001-2002 VERY GOOD 2002-2003 GOOD 2003-2004 GOOD 2004-2005 VERY GOOD 2005-2006 VERY GOOD 2006-2007 VERY GOOD 2007-2008 AVERAGE 2008-2009 (1.04.08 TO 30.7.08) AVERAGE (4.07.08 TO 15.3.09) VERY GOOD 2009-2010 VERY GOOD 2010-2011 OUTSTANDING 2011-2012 OUTSTANDING 2012-2013 OUTSTANDING 2013-2014 OUTSTANDING
9. He has, therefore, submitted that he duly fulfilled all the eligibility criteria and possesses the educational qualification and essential experience for the said post. Even in the evaluation sheets furnished to the Search-cum-Selection Committee three columns have been prescribed i.e. essential educational qualifications, essential experience and recruitment criteria and against his name Yes has been mentioned in respect of all the three columns. Even the first Screening Committee constituted for shortlisting the candidates for the aforesaid post had after scrupulously examining his case and found him to be fully eligible for promotion to the aforesaid post. Therefore, the action of the Review Search-cum-Selection Committee in not recommending his name for promotion to the aforesaid post is not sustainable in law. Moreover during the consideration of his case by the Review Search-cum-Selection Committee, Respondent No. 3, as CGM (HR&Admn) was actively involved in processing his files and furnishing information to the Review Search-cum-Selection Committee, while he himself was a candidate for promotion in the said selection process. Taking advantage of his position and nexus with senior officers, Respondent No.3, intentionally furnished wrong information in respect of the applicant to the Review Search-cum-Selection Committee and managed to prejudice it against him. Since he himself was a candidate for promotion in the same selection process, in view of conflict of interest, he ought to have been kept out of the entire process of preparation of evaluation sheets. Due to active participation and dominance of Respondent No.3 in preparation of evaluation sheets, serious prejudice and injustice has been caused to the applicant, as the Review Search-cum-Selection Committee has been misled and wrong facts have been furnished to it in respect of the applicant.
10. The learned counsel for the Applicant Shri Tarun Gupta has submitted that the Doctrine of Wednesbury will apply in this case. According to the said doctrine, discretion must be exercised reasonably and, therefore, to arrive at a decision on 'reasonableness' the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view. In this regard, he has referred to a number of judgments. The relevant part of judgment in the case of the judgment Union of India Vs. G. Ganayuthan 1997 (7) SCC 463 is reproduced as under:-
12. This case is treated as laying down various basic principles relating to judicial review of administrative or statutory discretion. Before summarising the substance of the principles laid down there we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) 1 KB 223 (p. 229). It reads as follows:
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the words 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority . . . . . . . . In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another"
Lord Greene also observed (p. 230):
". . . . . . . . . . it must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable body can come to. It is not what the Court considers unreasonable. . . The effect of the legislation is not to set up the Court as an arbiter of the correctness of one view over another."
He has also referred to judgment of the Apex Court in the case of Jayrajbhai Jayantibhai Patel Vs. Anilbhai Nathubhai Patel 2006 (8) SCC 200. The relevant part of the said judgment reads as under:-
14. In Council of Civil Service Unions Vs. Minister for the Civil Service , Lord Diplock enunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality (ii) irrationality and (iii) procedural impropriety. While opining that "further development on a case by case basis may not in course of time add further grounds" he added that principle of "proportionality" may be a possible ground for judicial review for adoption in future. Explaining the said three grounds, Lord Diplock said:
By "illegality" he means that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality" he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety" he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal's jurisdiction is conferred, even where such failure does not involve any denial of natural justice.
15. The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds' for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn. as follows:
"the court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."
11. The learned counsel for the Applicant has also relied upon the judgment of the Apex Court in the case of The State of Madhya Pradesh Vs. Suresh Kumar Arya 2011 SCC OnLine MP 760 wherein it was held that in the review DPC the candidate has to be considered on the same criteria, on which the candidates were considered in the original DPC. In this regard, the learned counsel for the Applicant has also relied upon the judgment of the Apex Court in the case of Dr. (Mrs.) Geeta Mishra Vs. State of M.P. and Others 2013 SCC OnLine MP 2939 wherein it has been held that not only when there is a bench-mark but in all cases an entry must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.
12. The learned counsel has, therefore, submitted that since the Respondents have arbitrarily and illegally denied promotion to the Applicant, this Tribunal has power to direct the Respondents to appoint him as CGM (LA) and CGM (HR/Admn.). In the alternative, he has submitted that this case should be sent back to the Respondents to further review the case in accordance with the earlier directions of this Tribunal and in accordance with the laid down rules.
13. The Respondents No.2 & 4 in their reply have submitted that the crux of the challenge by the Applicant to the decision of the Review Search-cum-Selection Committee held on 30.06.2014 in compliance of the judgment/final order dated 16.05.2014 of this Tribunal in OA No.1247/2013 is that the Search-cum-Selection Committee ought not to have taken into consideration his ACRs for 2002-03 and 2003-04 which were Good on the ground that these were not communicated to him and ACR for 2007-08 on the ground that the same was prepared by his Reporting Officer and that the same was not communicated to him. In this regard, they have stated that the Applicant admittedly received the ACRs for the period 2004-05 to 2008-09 from Respondent No.2 NHAI vide letter dated 16.06.2010 filed by himself along with the present Original Application. However, he preferred to conceal and withhold the ACRs from 28.05.2007 to 03.07.2008 wherein he was graded as Average from the earlier OA 1247/2013 but the Respondents filed copy of the said ACRs. Now the Applicant has filed the same as part of the present OA. It is thus more than apparent that the Applicant had copies of the said ACRs with him in June 2010 itself which was long before filing of OA No. 1247/2013 (supra) on 5.3.2013. Similarly, Applicant was provided copies of ACRs for 2002-03, 2003-04, 2009-10 and 2010-11 vide RTI reply dated 17.10.2012 well before the filing of OA 1247/2013 on 5.3.2013, which fact was averred by Respondent No.2-NHAI in para 3 of the preliminary objections of its reply dated 7.10.2013 to OA 1247/2013 but the Applicant with ulterior and oblique motive has not filed a copy of the said letter dated 17.10.2012 along with the present OA. They have also stated that there were no averments in the earlier OA 1247/2013 (surpa) that he had made any representations to the Competent Authority of Respondent No.2-NHAI questioning or challenging the said ACRs grading him Average or Good at any time prior to filing of OA 1247/2013. There were no allegations in OA 1247/2013 (supra) questioning or challenging the said ACRs and no relief was sought in the said OA for quashing of the said ACRs or not to take the same into consideration for purposes of consideration of his candidature for the posts of CGM (LA) and CGM (HR/Admn.) by the Search-cum-Selection Committee. This was in spite of the fact that the Applicant had soon after receiving copies of ACRs vide letter dated 16.06.2010 had made a representation dated 01.07.201 questioning the correctness of the said ACRs. After the passing of the judgment/final order dated 16.05.2014 by this Tribunal in OA No.1247/2013, the Chairman of NHAI disposed of the representation dated 1.7.2010 vide Office Order dated 23.6.2014 holding that the reporting and reviewing of the ACRs was done by officers competent in that regard. The Applicant on receipt of the said Office Order, made a further representation to the Chariman, NHAI as the competent authority, to which a reply dated 27.6.2014 was sent to him that the decision had already been conveyed to him vide Office Order dated 23.6.2014. But the said order dated 23.6.2014 is not under challenge in the present OA. Though by way of prayer clause (f) of the present OA, the Applicant has sought the relief that the ACRs for 2002-03 and 2003-04 ought not to be taken into consideration, it is not his case that he had ever challenged or questioned the said ACRs in the past, even though admittedly copies thereof were furnished to him vide RTI reply dated 17.10.2012, much before the filing of the earlier OA 1247/2013. Hence he is deemed to have admitted and accepted the correctness of the same in the past, but on realizing that the ACRs would legitimately and correctly be considered by the Review Search-cum-Selection Committee in its meeting held on 30.06.2014 in compliance of judgment and final order dated 16.5.2014 in OA No.1247/2013, sought to question and challenge the same for the first time vide representation dated 24.10.2014 with ulterior and oblique motives, by way of clear afterthought. Even otherwise, the relief sought in the aforesaid prayer clause is clearly time barred. Hence the crux of the challenge to the legality and validity of the challenge to the minutes/recommendations of the Review Search-cum-Selection Committee dated 30.06.2014 are also clearly frivolous, baseless and wholly misconceived.
14. Further according to them, the applicant, being well aware that his challenge to the minutes of the Review Search-cum-Selection Committee dated 30.06.2014 is wholly misplaced, has sought to raise further ground of challenge, namely, that the Search-cum-Selection Committee has changed the criteria for selection to the post of CGM (LA) and CGM (HR/Admn.) as compared to the previous Search-cum-Selection Committee meeting held on 18.06.2009 which is also wholly frivolous and baseless, inasmuch as, the Review Search-cum-Selection Committee has considered the candidature of eligible persons including the Applicant strictly in terms of the provisions of the NHAI Recruitment Regulations and the eligibility criteria as prescribed therein, and has not made any deviation therefrom. They have also stated that the level of desperation on the part of the Applicant in raising some frivolous ground or the other can be gauged from the fact that it has been alleged that the Search-cum-Selection Committee has rejected his candidature for the post of CGM (LA) and CGM (HR/Admn.) on the very same ground of penalty for minor misconduct which was rejected by this Tribunal in the earlier OA. As a matter of fact, in the earlier OA, the ground of challenge was that the Search-cum-Selection Committee had wrongly not at all considered his candidature on the ground that he was not eligible for consideration on the allegation that he was undergoing punishment from 1.7.2009to 30.06.2010, which ground raised by him was accepted by this Tribunal vide order dated 16.5.2014 in OA 1247/2013, whereas the Review Search-cum-Selection Committee in its minutes dated 30.04.2014 has merely recorded that the Applicant had undergone minor penalty by way of withholding one annual increment in 2008-09. The Review Search-cum-Selection Committee has considered his overall performance in the past and has not recommended him for selection for the post of CGM (LA) and CGM (HR/Admn.) and no reasons were required to be given for such rejection, quite contrary to the contentions raised by the Applicant. Further desperation on the part of the Applicant in challenging the minutes of the Review Search-cum-Selection Committee dated 30.06.2014 on the ground that the assessment made by the Committee is based on ACRs and that no independent assessment has been made is also wholly frivolous and baseless, inasmuch as, the Search-cum-Selection Committee has considered his overall performance to assess his suitability for the post of CGM (LA) and CGM (HR/Admn.) in NHAI and has not recommended him for either of the posts. In such circumstances, the Applicant cannot impose himself on the Committee or for that matter on Respondent No.2-NHAI and claim that he in fact ought to have been selected for such post.
15. They have also stated that the Applicant has gone to the extent of levelling uncalled for and objectionable allegations of mala fide, bias etc. against all the sundry, including the Chairman of NHAI (Respondent No.4) and Shri V.K. Sharma (Respondent No.3), whereas there are no allegations of any kind levelled against Respondents No.5 and 6 and not they are necessary parties to the present OA. The allegations made on the face of them are false, frivolous, motivated and raised by way of afterthought. That apart, the allegations made have no relevance whatsoever to the legality, validity and correctness of the decision taken by the Review Search-cum-Selection Committee on 30.6.2014, consisting of 4 eminent members, namely, (1) Shri Vijay Chhibber, Secretary, Ministry of Road Transport & Highways Chairman (2) Shri P. Dewan, Secretary, Ministry of Tourism, (3) Shri R.P. Singh, Chairman, NHAI i.e. Respondent No.4 and (4) Shri V.K. Gupta, DG, CPWD of whom only Respondent No.4 is a member from NHAI. Review Search-cum-Selection Committee was held in compliance of the judgment and final order dated 16.5.2014 of this Tribunal in OA 1247/2013 in place of the earlier Search-cum-Selection Committee meeting held on 18.6.2009, when Respondent No.4 was not even holding the post of Chairman of NHAI. The adverse ACRs of 2002-03, 2003-04 and 2007-08 of the Applicant also pertain to periods prior to 18.6.2009 which were under consideration of the Committee. Hence the grounds urged by the Applicant challenging the minutes of the Review Search-cum-Selection Committee dated 30.06.2015 on the face of them are wholly false, frivolous, vexatious and devoid of any merit. Hence the OA is liable to be dismissed with costs. They have also stated that the vacancy against the post of Chief General Manager (Admn. & HR) has already been advertised on 22.09.2015 and as per the said advertisement, the selection shall be through deputation.
16. On behalf of Respondent No.3, the learned counsel Shri A.K. Behera has also submitted that the Search-cum-Selection Committee is not a Departmental Promotion Committee for the internal candidates having the requisite qualifications and experience had to apply for the same, which meant that there was no question of consideration of inter se seniority of internal candidates having the requisite qualifications and experience for consideration for the post of CGM by the Search-Cum-Selection Committee, and nor they could claim any precedence over the external candidates. Furthermore, the NHAI advertised for various posts of CGM including the posts of CGM (LA) and CGM (Administration & HR) and the last date for receipt of applications dated 30.09.2008. However in the meanwhile the applicant had been issued memo dated 28.07.2008 for initiating disciplinary proceedings. The chairman of NHAI thereafter constituted a Screening Committee consisting of Shri S.C.Jindal, CGM (Technical) to scrutinize the applications with regard to eligibility of the candidates based on their educational qualifications, experience and other requirements as per the relevant provisions of the NHAI (Recruitment, Seniority & Promotion) Regulations 1996 and the advertisement issued for the post. The said minutes of meeting dated 30.10.2008 of the said Screening Committee that Sh. B.P.Kukrety, CGM (Technical), one of the members of the Committee did not take part in the deliberations, as he was absent on account of being on leave. The Committee after scrutinizing a total 10 applications, found two candidates namely the Applicant and Respondent No.2 eligible for consideration of the posts by the Search-cum-selection Committee constituted by the Ministry of Road Transport & Highways. The search-cum-selection committee met thereafter on 06.11.2008, when it found that though number of applications had been received for the posts the ACRs of the applicants for the posts, had not been received and in the absence of the ACRs a fair assessment of the candidates could not be made. The committee also felt that considering the senior level appointments to the post of CGM, the Screening Committee ought to be reconstituted and hence a new Screening Committee was formed consisting of Member (Administration) and Member (Finance), both of NHAI and Joint Secretary (Public Private Partnership) in the Ministry of Road Transport & Highways to shortlist the eligible candidates for various posts of CGM in NHAI. The newly constituted Screening Committee consisting of much senior officers both of NHAI and the Ministry of Road Transport & Highways met on 06.02.2009 for scrutinizing the eligible candidates for consideration to the post of CGM by the Search-cum-Selection Committee. However, in the meanwhile, the disciplinary proceedings initiated against the Applicant by way of Memo dated 28.07.2008 culminated in imposition of minor penalty of withholding of two increments with cumulative effect on the Applicant vide memo dated 17.12.2008. The reconstituted Screening Committee, vide its minutes dated 06.02.2009, set out the guidelines with regard to submission of papers for their scrutiny for purposes of consideration of eligibility of candidates for the posts applied for. The applicant alleged that the respondents did not consider his candidatures and was not being found eligible by the reconstituted Screening Committee and has alleged malafide, merely because the earlier Screening Committee had declared him as eligible. But the decision taken by the reconstituted Screening Committee consisting of Senior-most officials of NHAI and the Ministry of Road Transport & Highways in its meeting held on 17.06.2009 as per minutes declaring the applicant ineligible for consideration for selection to the post of CGM as he was undergoing punishment by way of withholding of annual increment without cumulative effect up to 30.06.2010 is legal, reasonable tenable and justified in accordance with law. Furthermore, appointment to the post of CGM in NHAI is not by way of promotion and nor by a Departmental Promotion Committee, but selection from among internal and external candidates having the requisite qualifications and experience who applied for the post, by the Search-cum-Selection Committee constituted by the Ministry of Road Transport & Highways and headed by the Secretary in the Ministry. He has further submitted that the applicant had relied on the judgment of the Honble Supreme Court of India in the case reported as UOI vs. K.V.Jankiraman etc: AIR 1991 SC 2010 to the effect that Government Servants against whom disciplinary proceedings are pending, are entitled to be considered for promotion, but that their assessments would be kept in sealed cover. The applicant in this regard has also relied on the DOP&T office Memo dated 14.09.1992 taken out pursuant to the aforesaid Supreme Court Judgment, setting out the guidelines with regard to the sealed cover procedure, according to which the case of the candidate facing disciplinary proceedings is to be considered by the Departmental Promotion Committee (DPC) but his assessment is to be kept in sealed cover which shall be opened in case the Government servant is completely absolved of the charges, and if the DPC has recommended his promotion, he shall be promoted to the concerned post. However, if any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him. Relying on the above office memo the applicant contended in his original application that pursuant to memo dated 28.07.2008 issued to him to initiate disciplinary proceedings his case should have kept in sealed cover which contention is wholly untenable because the selection to the post of CGM by the Search-Cum-Selection Committee is not by way of promotion and nor the applicant has any vested right to considered for promotion by the Committee. The applicant had been given the penalty by way of withholding of two increments with cumulative effect vide memo dated 17.12.2008 of the Disciplinary Authority and the Appellate Authority vide order dated 03.06.2009 had reduced the punishment to withholding of increment for one year without cumulative effect upon the Applicant. Hence there was no occasion for the Search-Cum-Selection Committee to have kept his assessment in sealed cover. The applicant was fully aware that since he was given minor penalty by way of withholding of increment for one year without cumulative effect and hence he was not considered by the Search-Cum-Selection Committee for the post of CGM.
17. The learned counsel Shri A.K. Behera has referred to the judgment of the Apex Court in U.O.I. etc. etc. Vs. K.V.Jankiraman etc. etc. 1991 (4) SCC 109 and the subsequent case reported as Collector of Thanjavur District etc Vs. (2000)9 SCC 145 wherein it was held that the Tribunal was in error in holding that a minor punishment could not be taken into consideration while considering the case of a candidate for consideration for promotion by the Selection Committee. The said judgment has been followed by a Full Bench of Madras High Court in the case reported as the Deputy Inspector General of Police etc. Vs. Rani : MANU/TN/1299/2011, wherein it has been held that non consideration of a candidate for promotion during the currency of punishment does not amount to double jeopardy. Hence the decision taken by the reconstituted Screening Committee not considering the applicant to be promoted to the next post during the currency of the punishment can not be challenged by the Applicant. The DoP&T also, vide office Memo dated 30.07.2007, had set out the guidelines with regard to setting up of Search-Cum-Selection Committees, clearly stipulating therein that the panel recommended by the Committee would remain valid for only one year and if no selection is made from the panel within a period of one year a fresh Committee had to be constituted to prepare a fresh panel. This has been reiterated in the subsequent amendment of NHAI (Recruitment, Seniority & Promotion) Regulations 1996 in the year 2008, inserting Regulation 11 (3)(a) with the aforesaid stipulation of DoP&T in its Office Memo dated 30.07.2007. The search-cum-selection Committee in the present case met on 18.06.2009, by which time the punishment given to the applicant had became final, by way of withdrawal of annual increment without cumulative effect for one year, which could have ended on 30.06.2010 by which time the period of one year from the date of recommendation for promotion would have ended. Hence the decision of the Screening Committee taken in its meeting held on 17.6.2009 that the Applicant was not eligible to be considered for promotion during the currency of the punishment, cannot be challenged by the Applicant. Further, it is submitted that the Applicant made his representation belatedly on 23.10.2012 to the Chairman, NHAI objecting to the decision of Screening Committee dated 17.6.2009 declaring him not eligible for consideration for selection to the post of CGM (LA) and CGM (Admn. & HR) on the ground of currency of minor punishment by way of withholding of one annual increment without cumulative effect. On the said representation, a note dated 23.11.2012 was prepared by Shri Nitin Gupta, Asstt. Manager (Admn.) of NHAI, stating therein that the Screening Committee in its meeting held on 17.6.2009 erred in declaring the applicant as not eligible for consideration for selection to the post of CGM (LA) and CGM (Admn. And HR) on the ground of currency of minor punishment by way of withholding of one annual increment without cumulative effect in view of Dop&T Office Memo dated 15.12.2004. The Applicant has also tried to take advantage of the note sheet dated 4.1.2013 issued by the Chairman, NHAI in which he expressed his view that the officers who have been selected will have a vested right which cannot be disturbed by a plea by the Applicant that he was not aware of the facts. Further the Applicant has also tried to take advantage of the observation of the Chairman dated 4.1.2013 that there may be more procedural mistakes and that all these cases cannot be taken up. This interpretation of the Applicant replied by the Applicant. The representation of the Applicant had been dismissed by the Chairman, NHAI, vide his note dated 4.1.2013 and his subsequent letter dated 11.01.2013 issued by the Respondent-NHAI to the Applicant, with the approval of the competent authority, namely, the Chairman, NHAI dismissing the representation of the Applicant because his representation was hit by limitation.
18. The learned counsel has also submitted that he never manipulated any thing in the selection process but it is only the Applicant who is trying to give distorted shape for his personal gains. He denied any nexus with senior officers and furnishing incorrect information to the Review Search-cum-Selection Committee. He further submitted that the allegation regarding manoeuvring and manipulations by him with the support of any influential people are baseless and unfounded. He denied that the non-consideration of the Applicant for selection to the post of CGM was the outcome of any conspiracy or manipulation by him as alleged.
19. He has, therefore, submitted that the Applicant has not been able to make out a case in his favour based on the averments made in the OA and the documents enclosed thereto. He has also prayed that this Tribunal may dismiss the OA with exemplary costs.
20. We have considered the submissions made by the learned counsel for the parties. We agree with the learned Sr. Counsel for the Applicant Shri Nidesh Gupta that the Review Search-cum-Selection Committee was not fair in their consideration of the candidates including the Applicant for selection/promotion to the post of CGM (LA)/CGM (Admn. & HR). Rather, their consideration was an empty formality without application of mind. As held by the Apex Court in the case of The State of Madhya Pradesh Vs. Suresh Kumar Arya (supra), in a review meeting, the candidate has to be considered on the same criteria, on which the candidates were considered earlier. While directing the Respondents to convene the Review Search-cum-Selection Committee vide this Tribunals earlier order dated 16.05.2014, this Tribunal has observed that the members of the Search-cum-Selection Committee had been misled and wrong facts were submitted to them by the official respondents. This Tribunal specifically held that the Search-cum-Selection Committee at its meeting held on 18.06.2009 did not consider the Applicant to the posts of CGM (LA) and CGM (A&HR) as its members were mislead and made them believe wrongly that the Applicant was Not eligible, as a penalty has been awarded to the officer and the currency of punishment is valid till 30.06.2010. This Tribunal has also held that the Search-cum-Selection Committee was misinformed that the Applicant was not eligible for consideration without bringing the actual rule position to its notice. According to Regulation 13 of National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996, prescribed list of minor penalties are (i) Reprimand; (ii) Withholding of increment or promotion; (iii) Demotion to a lower post or grade or to a lower stage in his incremental scale; and (iv) Recovery from pay of the whole or part of any pecuniary loss caused to the Authority by the officer or employee. From the said list, it is seen that withholding of increment and withholding of promotions are two different and distinctive minor punishments. The Disciplinary Authority can impose only either of them and not both. The penalty imposed upon the Applicant is undoubtedly withholding of increment. While imposing the said penalty upon the Applicant, the Disciplinary Authority was, no doubt, guided by the said regulations. However, the Respondents ignored the aforesaid directions and the material placed before the Review Search-cum-Selection Committee was entirely misleading and wrong. A copy of the said material obtained by the Applicant under the Right to Information Act, 2005 and filed this OA is reproduced as under:-
CGM(HR & Admn.) CGM (LA)
1. Shri V.K. Sharma, GM (Admin), NHAI Eligible
2. Shri Vishnu Darbari, GM (RSC) Eligible.
3. Shri Bijoy Kumar Mohapatra, Registra, LBSRSV, New Delhi Eligible
4. Dr. A.K. Malhotra, IFS, Jharkhand Provisionally Eligible.
5. Shri P.K. Chaturvedi, Chief Engineer, EPFO
1. Shri V.K. Sharma, GM (Admin), NHAI Eligible
2. Shri Vishnu Darbari, GM (RSC) Eligible.
ACR Gradings and Vigilance status Sl.No. Name 01-02 02-03 03-04 04-05 05-06 06-07 07-08 Comments Vigilance Status as on 18.06.2009 (date of last SCSC)
1. Shri V.K. Sharma OS OS OS OS 9 10 9 Working as CGM (LA) CLEAR
2. Shri Vishnu Darbari 8 5 5 8 (Apr-Jul) 7 (Aug-Dec) 8 7 4
-
Vigilance case pending. CAT has directed to consider his candidature.
3. Shri Bijoy Kumar Mohapatra OS OS OS OS OS OS OS
-
CLEAR
4. Sr. A.K. Malhotra OS OS Os OS OS
-
OS Selected but did not join as CGM (HR) Selected but did not join as CGM (HR)
5. Shri P.K. Chaturvedi
-
OS OS Very Good OS OS OS
-
CLEAR It is seen from the aforesaid information furnished by the NHAI to the Review Search-cum-Selection Committee that the Applicant was still not free from vigilance angle which is factually incorrect and, therefore, misleading. However, in the case of Dr. B.K. Mohapatra the information supplied to the earlier Committee was that Vigilance case pending. CAT has directed to consider his candidature. But in the above information sheet, the said remarks have been omitted. Similarly in the case of Shri P.K. Chaturvedi, the earlier Committee considered the remarks Not eligible. (i) No specific period has been mentioned to assess the experience of 12 years in relevant field. The said remarks are also missing in the information sheet supplied to the Review Committee. Thus, the Review Search-cum-Selection Committee in its meeting held on 30.06.2014 committed the same mistake of relying upon the information furnished to them by the officials of the Respondent-NHAI without proper application of mind. According to the minutes the Committee also took note of the order dated 17.12.2008 of the Disciplinary Authority imposing the minor penalty of withholding of two increments with cumulative effect upon Shri V.S. Darbari, General Manager and also the order dated 03.06.2009 issued by the appellate authority modifying the penalty of withholding of increment for one year without cumulative effect. The Respondent-NHAI could not have again furnished the said information to the Review Search-cum-Selection Committee in view of this Tribunals order earlier order dated 16.5.2014 that in the statement submitted to the Screening Committee later, the office, inadvertently or purposely, suppressed the said information and misinformed them that the Applicant was not eligible, as a penalty has been awarded to the officer and the currency of punishment is valid till 30.06.2010. Of course, without any application of mind and without considering the rule position, the Search-cum-Selection Committee has also mechanically followed the advice of the Screening Committee and did not consider the Applicant at all.
21. Further according to the Review Search-cum-Selection Committee, it decided to evaluate the candidates on the basis of their qualifications, experience and the assessment of their ACRs which were available at that point of time. However, except the ACRs of the candidates, nothing else was considered by the said Committee. The Committee should have assessed the qualifications and experience of the candidates also and to make a comparative statement indicating the individual merits. Again when the said Committee decided to assess the available ACRs of the all the candidates, they have not done so. The Applicant has given the gradings granted to him in his uptodate ACRs for 1989-90 to 2013-14. He has 11 Outstanding, 10 Very Good, 2 Good and 1 Average gradings to his credit. It is the Respondents own submission that the Search-cum-Selection Committee cannot be equated to a DPC and, therefore, there is no constraints for them to go beyond the limited number of ACRs.
22. We are also of the considered view that the Respondents should have considered and dispose of his representation against the ACRs for the year 2007-08 well in advance before the date of the Review Search-cum-Selection Committee so that the Applicant could have availed himself of the legal remedies available to him before the date of the meeting of the Review Search-cum-Selection Committee. Similarly, they should have communicated the gradings in his ACRs for the year 2002-03 and 2003-04, at least after the judgment of the Apex Court in the case of Dev Dutt v. Union of India & Ors. (2008) 8 SCC 725 wherein it has been held as under:-
26. In our opinion, our natural sense of what is right and wrong tells us that it was wrong on the part of the respondent in not communicating the 'good' entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be considered for promotion, and this right of the appellant was violated in the present case.
27. A large number of decisions of this Court have discussed the principles of natural justice and it is not necessary for us to go into all of them here. However, we may consider a few.
28. Thus, in A. K. Kraipak & Ors. vs. Union of India & Ors., AIR 1970 SC 150, a Constitution Bench of this Court held :
"The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alterant pattern). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice ".
The aforesaid decision was followed by this Court in K. I. Shephard & Ors. vs. Union of India & Ors., AIR 1988 SC 686 (vide paras 12-15). It was held in this decision that even administrative acts have to be in accordance with natural justice if they have civil consequences. It was also held that natural justice has various facets and acting fairly is one of them. Consideration of those un-communicated ACRs by the Review Search-cum-Selection Committee was against the principles of natural justice and vitiated selection process to the disadvantage for the Applicant.
23. It is also observed that even though the applicant has made allegation of mala fide against the respondent no.4 quoting specific instances, he has not refuted them by filing any reply affidavit or engaged any counsel to represent him. However, we make it clear that the Applicants allegation of bias or illegal involvement of Respondent No.3 Shri V.K. Sharma has no merit as the Applicant could not produce any documentary or other proof to support his claim. But the question still remains is that if a fair assessment is made what would be the position of the Applicant and the Respondent No.3 as far as their overall merit is concerned.
24. We, therefore, once again remit the case to the same Review Search-cum-Selection Committee to reconsider and review the selection of candidates for the post of CGM (LA) and CGM (Admn. & HR) in the light of this Tribunals earlier order dated 16.05.2014 and the observations above uninfluenced by the wrong information furnished to them on the earlier occasions by the officials of the respondent-NHAI, within a period of two months from the date of receipt of a copy of this order. Meanwhile, the Respondent is restrained from proceeding further in pursuance of the advertisement dated 22.09.2015. Accordingly, this OA stands disposed of. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh