Jharkhand High Court
Purna Chandra Kahili vs The Union Of India Through The Secretary on 8 September, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1269 of 2022
Purna Chandra Kahili ...... Petitioner
Versus
1. The Union of India through the Secretary, Ministry of Road, Transport
and Highways, 1, Parliament Street, Transport Bhawan, New Delhi, P.O.
P.S. & District-New Delhi
2. The National Highway Authority of India, through its Chairman, having
its office at Plot No. G-5 & 6 Dwarka-Sector 10, New Delhi-110075, P.O.,
P.S. & District-New Delhi
3. The General Manager (HR/Admin)-II A, National Highway Authority of
India, having its office at Plot No. G-5 & 6 Dwarka-Sector 10, New Delhi-
110075, P.O., P.S. & District-New Delhi ...... Respondents
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan
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For the Petitioner : M/s Abhaya K. Behera, Sr. Adv., Sanchay Srivastava, Shristi Sinha, Shashank Shekhar, Sushant Srivastava and Aalekh Anand, Advocates For the Resp.-N.H.A.I. : M/s. Khusboo Kataruka, Allan Anton Andrew, Advocates.
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09/ 08.09.2022 Heard Learned Senior Counsel for the petitioner and Ms. Khusboo Kataruka, learned counsel for the Respondents.
2. Applicant is the writ petitioner aggrieved by dismissal of O.A. No. /050/00238/2021 vide order dated 18th February, 2022. The original application was directed against O.M. No. 11041/283-Misc/2019-Admin- part dated 1st March, 2021, whereby applicant was reverted from the post of Deputy General Manager (Technical) to the post of Technical Assistant in Pay Level 6, and also the order of transfer dated 18th February, 2021, whereby he had been transferred from Project Implementation Unit, Hazaribagh to N.H.A.I. Headquarter, Delhi. The applicant had also prayed for restoration of his earlier status.
3. Relevant facts necessary to examine the issue in controversy are being briefly indicated hereunder:
1996- The National Highways Act was passed in the year 1956 (48 of 1956). The National Highways Authority of India (NHAI), however, was made functional only in the year 1996. Immediately after NHAI became functional, it gave an advertisement in the National Dailies inviting application for the posts of Draftsman with education qualification of 2 Diploma/certificate in draftsmanship from ITI or equivalent. The Petitioner fulfilled the said condition of eligibility and applied for the same.
25/06/1997- On the basis of his selection as Direct Recruit, the Petitioner was appointed as Draftsman in NHAI on regular basis.
27/12/2002- The designation of the post of Draftsman was changed as "Technical Assistant".
2003- The Petitioner sought permission from NHAI for doing a course in Diploma in Civil Engineering. On getting such permission the Petitioner joined the course.
2007- The Petitioner completed his course in Diploma in Civil Engineering and on being awarded the Diploma, the Petitioner duly intimated the same to the NHAI for updating his service record.
2008- The Petitioner again sought permission from NHAI to join B. Tech course in Civil Engineering at Rajasthan Vidyapeeth University which at that time was a recognized course. On getting the permission the Petitioner joined the course of B.Tech course at Rajasthan Vidyapeeth University.
2011- The Petitioner completed the B.Tech course and on being awarded the Degree from the said University, duly intimated the same to NHAI for updating his service record.
August 2011- The NHAI issued a public advertisement for appointment on deputation basis as Manager (Technical). In the said advertisement, the eligibility conditions required for Deputationists was mentioned. However, it was categorically stated that in case of discrepancy in the eligibility criteria the Recruitment Rules as per the NHAI regulations shall prevail. Besides, in the declaration form attached to the advertisement it was stipulated in condition No.5 as follows "Regular employees of NHAI who fulfilled the eligibility conditions prescribed for promotion to any of the above mentioned post as on the last date may also apply. Incase they are selected their appointment will be on promotion basis as per guidelines on the subject." The eligibility conditions for promotion were not mentioned in the advertisement. According to petitioner, he fulfilled the eligibility conditions for promotion as prescribed in the Recruitment Rules. Therefore, he applied.
18/05/2012- The Petitioner was promoted as Manager (Technical) w.e.f. 18/05/2012. Manager (Technical) is a Level 11 post in NHAI.
32016- The Petitioner was transferred and posted at Jharkhand Project Implementation Unit (PIU) at Jamshedpur as Manager (Technical).
18/05/2016- The Petitioner was promoted as Deputy General Manager (Technical), a Level-12 post, as per the Recruitment Rules w.e.f. 18.05.2016.
03/11/2017- The Hon'ble Supreme Court, pronounced a judgment in the case of Orissa Lift Irrigation Corp. Ltd & Ors Vs. Rabi Shankar Patro & Ors. holding that B.Tech qualification from Rajasthan Vidyapeeth University is not a valid degree as the same was not as per the norms of AICTE. After holding so, the Supreme Court gave a direction that all persons who had taken admission upto 2005 Academic session would be given 2 chances to qualify in a test conducted by AICTE and if the candidates qualify in the test then their B. Tech degree would remain valid. However, persons who had taken admission post 2005 Academic Session were not given any such opportunity. Since the Petitioner had taken admission in the Academic Sessions 2008, he was not given any chance whatsoever to qualify in any test.
29/11/2018- The NHAI constituted a committee of 3 members to study the judgment of the Hon'ble Supreme Court and to take steps for implementation of the said judgment in NHAI.
26/04/2019- After the formation of the said Committee, the administration issued a letter calling upon the employees of NHAI to supply copies of their Degree to go into the issue of implementation of degree certificate.
01/05/2019- The Petitioner, unofficially coming to know about the purpose of the aforesaid letter, gave a representation to the NHAI stating that as far as promotion in NHAI from Technical Assistant to higher grades in NHAI is concerned, the Degree qualification was not required. Therefore, the judgment of Supreme Court does not impact the promotions so granted.
13/07/2020- The Committee so constituted held its meeting and gave a report. Out of 3 members 2 members did not go into the issue as to whether B.Tech Degree is required for promotion from Technical Assistant to higher grades/posts in Technical department of NHAI and they gave a report that promotion given to all persons including the Petitioner who had B.Tech degree from Rajasthan Vidyapeeth University should be withdrawn.
4However, the said report was not signed by one of the members of the Committee.
Learned counsel for the petitioner submits that the member of the Committee who had not signed gave a separate report by examining the Recruitment Rules holding B.Tech degree is not required for promotion to higher posts in Technical dept in NHAI. Therefore, promotion of persons including the Petitioner is not affected by the judgment of Supreme Court.
The office put up the report of 2 members but did not put up the report of another member (dissenting note) for approval.
23/12/2020- The NHAI held its 150th meeting and created 4 posts of Technical Assistant at Delhi office. It is contended by the petitioner that these 4 posts were created solely for the purpose of reverting 4 persons including Petitioner from their promotional posts to the newly created posts of Technical Assistants in Level 6. According to them, there is no recruitment rules for such a post. The same is a non-existent post in NHAI.
23/12/2020- The Petitioner made a further representation stating that the education qualification of B.Tech was not required in respect of candidates who are in the feeder line of Technical Dept of NHAI.
17/02/2021- The said representation of the Petitioner was assigned to DGM (HR) for re-examination. The DGM (HR) also opined that there was no requirement of B.Tech qualification for promotion in the Technical dept of NHAI. DGM (HR). He also opined that no show cause notice has been given to the concerned employees before taking any adverse action against them. It is the case of the petitioner that this note of the DGM (HR) was not put up to the Competent Authority i.e. Chairman for consideration and order.
18/02/2021- Petitioner has alleged that The NHAI issued transfer order of the Petitioner and 3 others to New Delhi only with a view to revert them to the newly created posts.
01/03/2021- Orders were issued reverting the Petitioner and 3 others to Technical Assistant, a newly created level 6 post for which there are no recruitment rules even today.
15/03/2021- The Petitioner filed instant O.A challenging both the transfer order and reversion order dated 01/03/2021.
527/04/2021- The Tribunal, however, did not grant interim relief at that stage.
18/02/2022- The final judgment was delivered by CAT dismissing the O.A but making observation regarding the fact that there is no promotional avenue in the post of Technical Assistant which is contrary to the law of the Supreme Court.
4. Petitioner had raised the following issues before the learned C.A.T. i.e.
(i) Whether the qualification of B.Tech Degree was a mandatory requirement as per the recruitment rules for consideration of promotion from Technical Assistant to Higher Grade of Manager (Technical) and D.G.M. (Technical) in the Technical Department of N.H.A.I.
(ii) Whether any show cause notice had been given to the petitioner before passing the order of reversion having civil consequences on the petitioner.
Learned Tribunal took note of the sequence of dates and events and also the Recruitment Rules, 1996 and framed the primary issue regarding the validity of the order of reversion of the applicant and whether the qualification of B.Tech degree was a mandatory requirement as per recruitment rules for promotion to Manager (Technical) and D.G.M. (Technical). Learned Tribunal also took into note the judgment rendered by the Principal Bench of the learned C.A.T. in the case of three applicants namely S.K. Verma, Nirmal Kumar (Both in-service candidates) and Ram Babu Jha (Deputationist) rendered in O.A. No. 543 of 2021 and 897 of 2021. Ram Babu Jha, being aggrieved by the dismissal of the O.A. and the deputationist, had approached the Delhi High Court in W.P.(C) No. 6075 of 2021. The said writ petition was also dismissed. It has been informed that the applicants S.K. Verma and Nirmal Kumar have preferred review petition before the learned Principal Bench, C.A.T. It is the case of the petitioner herein that the issue relating to interpretation of recruitment rules, more specifically column 8 of the recruitment rules, to find out as to whether in view of the four distinct alternative eligibility criteria prescribed therein, was it mandatory to have a degree in Civil Engineering for promotion in the Technical department of N.H.A.I., was nowhere examined by the learned Principal Bench, C.A.T. This plea was taken for the first time in the instant O.A. preferred by the applicant-petitioner. Learned counsel for the petitioner has also distinguished the judgment of the Delhi 6 High Court in the case of Ram Babu Jha as it related to a deputationist, he did not fall in the category of the applicant, who was an in-service candidate and was promoted to the higher post of Manager (Technical). It is also pointed out by referring to the observations made by the Delhi High Court in W.P.(C) 6075/2021 at Paragraph 9 and 10 that the said petitioner in the rejoinder had not refuted the assertion of the respondent N.H.A.I. relating to the applicability of educational qualifications prescribed for direct recruits under the recruitment rules, 1996. As such, the points which have been taken by the petitioner before the learned C.A.T. and before this Court were neither raised nor decided by the learned Principal Bench in the case of other two applicants who were in-service candidates or in the case of the deputationists Mr. Ram Babu Jha. Learned Tribunal, after considering the case of the parties, the recruitment rules, the judgment of the Apex Court in the case of Orissa Lift Irrigation Corporation Limited V. Rabi Sankar Patro & Others reported in (2018) 1 SCC 468 and other decisions cited by the parties dismissed the O.A. as being devoid of merits.
5. Learned Senior counsel for the petitioner has submitted that at one place at paragraph 18, the learned tribunal did observe that there is some vagueness in the text of column no.8, which provides for qualifications stipulated in column 7 for deputation/transfer from candidates already on the panel of Under/ Deputy Secretary, but is silent about candidates holding analogous post in a Central/State Government Department/Autonomous Body/Public Sector Undertaking. Nevertheless, learned C.A.T. held that notwithstanding this, both these posts are senior rank post in technical side and manning persons need to have the necessary technical qualification. It is submitted by reference to the recruitment rules of 1996 that column 8 thereof contains an expression 'or', which can only be read disjunctively and not conjunctively, for every category of persons, as per the settled rules of interpretation. The reading of the rule as adopted by the respondent N.H.A.I. with the educational qualification prescribed under column 7 would definitely oust the applicant from the challenge. However, a fare and objective reading of the relevant rule would on the contrary give a clear indication that in-service candidates were not required to fulfill the educational qualification prescribed under column 7 relating to B.Tech degree, whereas persons coming on deputation/transfer from other organizations were required to have the said qualification as clearly specified in the first part of column 8 applicable to them.
76. Learned senior counsel for the petitioner submits that the advertisement of 2011 was basically meant for deputation but it allowed in- service candidates also to apply. The advertisement also made it clear that in case of any discrepancy in eligibility/experience criteria, the recruitment rules as per N.H.A.I. regulation shall prevail.
7. Learned senior counsel for the petitioner then has referred to the judgment of the Hon'ble Supreme Court, reported in the case of Orissa Lift Irrigation Corporation Limited (supra). By referring to Para 66.7, it is submitted that direction contained in the Para 66.7 categorically states that all benefits secured by such candidates shall be withdrawn as indicated in para 59 above. However, if the promotion granted to the petitioner is not by virtue of holding the additional qualification of B.Tech as is applicable to the case of direct recruits or Deputationists/persons coming on transfer, the case of the petitioner would not be covered by the directions rendered in the case of Orissa Lift Irrigation Corporation (supra). However, the respondents without giving any opportunity to the petitioner chose to revert him from the grade of Dy. General Manager (Technical) to a newly created post of Technical Assistant at Level-6.
8. Learned senior counsel for the petitioner has further submitted that the National Highways Authority of India (Recruitment, Seniority and Promotion) Amendment Regulations, 2022, notified on 14th March, 2022 does not make holding of a B.Tech degree for an in-service candidate as an essential qualification for promotion to the post of Manager (Technical). What was implicit in the 1996 rules had been made explicit in the new regulations framed in 2022. The same had been given effect to by letter dated 30th March, 2022 issued with approval of the competent authority by the General Manager (H.R./Admin.)-II A to the Dy. General Manager (T), N.H.A.I., Regional Office, Nagpur. It has made clear that the eligibility criteria mentioned in the recruitment rules against deputation mode will be applicable for deputation only and will not be applicable for promotion quota. Learned senior counsel for the petitioner has relied upon the following decisions in support of the legal propositions and the issues raised in the present writ petition.
1. Municipal Corporation of Delhi Vs. Gurnam Kaur reported in (1989) 1 SCC 101 (Paras 11 & 12).
82. State of Uttar Pradesh and Another Vs. Synthetics And Chemicals Ltd. and Anr., reported in (1991) 4 SCC 139 (Paras 39 to
42)
3. Bank of India & Anr Vs. K Mohan Das & Ors. reported in (2009) 5 SCC 313 (Paras 54 to 59)
4. Bhrarat Petroleum Corporation Ltd. & Anr Vs N. R. Vairamani & Anr. reported in (2004) 8 SCC 579 (Paras 9 to 12)
5. H.L. Trehan & Ors. Vs. UOI & Ors. reported in (1989)1 SCC 764 (Paras 8-13)
6. Shrawan Kumar Jha & Ors. Vs. State of Bihar reported in 1991 Suppl (1) SCC 330 (Para 3) It is submitted that if the interpretation accorded by the respondents is approved, petitioner, who was appointed as a draftsman and redesignated as a Technical Assistant in 2002 would remain on the same post for the entire career without any promotional avenues, whereas the Apex Court in the case of Council of Scientific and Industrial Research and another versus K.G.S. Bhatt and another reported in (1989) 4 SCC 635 and Dr. Ms. O.Z. Hussain versus Union of India and others reported in (1990) Supp SCC 688 has categorically held that promotion is a normal incidence of service. A person recruited to an organization is recruited for a whole career and not to a post. Therefore, the person must be given enough opportunity for career advancement in the form of promotion. At least, two promotional avenues should be made available to any employee. It is submitted that even the learned tribunal in the impugned judgment at paragraph 29 as a post script has issued an advisory in that regard to the respondent authorities.
9. Learned senior counsel for the petitioner submits that the respondents in an act indicative of malice in law first issued an office order in the nature of transfer dated 18th February, 2021, whereby petitioner was transferred from Project Implementation Unit, Hazaribagh to N.H.A.I. Headquarters. Petitioner had objected to the transfer order by letter dated 21st February, 2022 addressed to Dy General Manager (H.R./Admin) -II B, N.H.A.I., New Delhi and reserved its right to approach the learned court. It is submitted that the intentions of the respondents to revert him became clear upon the issuance of the office memorandum dated 1st March, 2021. A bare reading of the said O.M. would show that in order to accommodate the 9 petitioner upon reversion, the authority in its 150th meeting held on 23rd December, 2020 has created four post of Technical Assistant, i.e. much before the order of transfer was issued on 18th February, 2021. Learned counsel for the petitioner submits that petitioner having served for about 26 years in the organization but has been reverted from the post of Dy. General Manager (Technical) at Level 12 to the post of Technical Assistant at Level 6 without even an opportunity of show cause in breach of the principles of natural justice. It is idle to suggest that such an order of reversion has entailed serious adverse consequences upon him without following the principles of Audi alteram partem, one of the canons of the principles of natural justice. This issue having not been addressed in the case of other applicants or deputationists, who had approached the learned Principal Bench, C.A.T., and not being authoritatively decided by any court, calls for adjudication.
10. Learned Senior counsel for the petitioner further submits that a three member committee was constituted to examine the consequences of the judgment rendered by the Apex court in the case of Orissa Lift Irrigation Corporation Limited (Supra) and whether the promotions granted to persons like the applicants were to be annulled and they be reverted. It is submitted that there was divergence of opinion of two members of the committee. However, the divergent opinion of two members of the committee was taken into consideration whereas the recommendation of one of the members of the committee was not considered by the authorities of the N.H.A.I. while taking a decision.
11. Learned senior counsel for the petitioner has also referred to the opinion of the D.G.M (H.R./Admin-I) dated 17th February, 2021 as contained in the supplementary counter affidavit filed by the respondents on 30th August, 2022, wherein while considering the instant issue he had clearly opined that out of four officers three were working as Manager (T) while one was working as D.G.M. (T) and PD (the applicant). Therefore, before downgrading these officers to the level of Technical Assistant it would be appropriate that these officers be given reasonable opportunity to rebut, to meet the ends of justice. However, such opinion was shrugged aside by the higher authorities in the NHAI. No opportunity of show cause was given before the order of reversion was passed.
12. Learned counsel for the petitioner has also pointed out that the supplementary counter affidavit filed on 30th August, 2022 pursuant to the 10 order dated 4th August, 2022 by the N.H.A.I. does not contain the minutes of the review selection committee recommendation whereunder the applicant and one other Shri Kishan Bansal were recommended for promotion to the post of Manager (Technical) in N.H.A.I. It is submitted that petitioner has obtained the copy of the recommendations of the Review Selection Committee for selection of candidates (Technical Assistants) on promotion to the post of Manager (Technical) in N.H.A.I. held on 2 nd February, 2015 under R.T.I. Minutes of the said meeting would reflect that at no stage the issue relating to additional qualification of B.Tech was a factor while making a recommendation for their promotion.
13. Be it noted here that vide order dated 4th August, 2022 the learned counsel for the respondent N.H.A.I. was directed to file relevant records relating to the promotional exercise concerning the petitioner for the post of Manager (Technical) given with effect from 2012 and the records relating to the reversion of the petitioner to the post of Technical Assistant under N.H.A.I. before this Court.
Pursuant to the order dated 4th August, 2022 a supplementary counter affidavit has been filed on 30th August, 2022 by the respondents to bring on records documents.
14. Learned counsel for the respondent N.H.A.I. has vehemently submitted that the degree of B. Tech was an essential qualification for promotion to the post of Manager (Technical) in the Technical department of N.H.A.I. The learned Tribunal has also amply made it clear that the recruitment rules, 1996 reveal that the grades from which the posts are to be filled up by deputation cannot be said to be independent of the educational qualification of column 7. A bare reading of the Schedule of the recruitment rules which provides for (i) Name of the post (ii) Number of posts (iii) classification of posts (iv) scale of pay (v) method of recruitment
(vi) age limit (in respect of direct recruitment only), (vii) educational and other qualifications required and (viii) In case of promotion or Deputation/Transfer-Grade from which promotion/Deputation/Transfer to be made, would show that the column 7 provides for essential educational qualification apart from two desirable qualification requirements. It requires the petitioner to have a valid degree in Civil Engineering from a reputed institute of technology or a recognized university. As far as column 8 is concerned, it pertains to the 'Grade' from which promotion/deputation/transfer is to be made. Petitioner was a regular 11 employee of N.H.A.I., who fulfilled the eligibility conditions prescribed at the time of recruitment. However, once the B. Tech degree of the petitioner stood invalidated by virtue of the judgment rendered in case of Orissa Lift Irrigation (supra), petitioner cannot continue to hold the promotional post. Any beneft, which accrued to the petitioner by virtue of the B. Tech degree, had to be taken away in furtherance of the directions passed by the Apex Court in the case of Orissa Lift Irrigation (Supra) as per Para 59 and 66.7.
15. Learned counsel for the respondent has referred to two original applications preferred by the applicant, one being O.A. No. 299 of 2012 and the other being O.A. No. 1275 of 2014, which the petitioner had preferred during subsistence of the promotional exercise pursuant to the advertisement issued in the year 2012. She submits that a committee was constituted to implement the directions of the Hon'ble Supreme Court in Orissa Lift Irrigation (Supra) dated 3rd November, 2017 and to verify the documents of the technical employees in view of the said judgment. The case of each such employee including the petitioner was considered. It was found that petitioner was not eligible to appear for the AICTE test as he was admitted in the concerned deemed university after academic sessions of 2001-05. Therefore, his degree stood invalidated and recommendation was made for reversion of promotions and benefits accrued on the basis of such degree acquired by him along with others.
16. So far as the allegation relating to non-signing of the report by all the committee members is concerned, it is stated that after the meeting dated 30th July, 2020, one of the members of the committee Mr. Rajesh Gupta, General Manager, Finance, was promoted as C.G.M. (Finance) and thus, the earlier report could not be signed by him. Accordingly a fresh committee was constituted and a meeting was held on 17th November, 2020, wherein both the earlier recommendations dated 15th October, 2019 and 13th July, 2020 were reviewed/revisited. After detailed discussions and deliberations, the committee decided to reiterate the earlier recommendations which was duly signed by all the three members. Photocopy of the minutes of the meeting held on 15 th October, 2019, 13th July, 2020 and 17th November, 2020 are enclosed as Annexure CA/5.
17. Learned counsel for the respondent submits that the documents relating to promotional exercise of the petitioner brought on record through the supplementary counter affidavit on 30th August, 2022 would show that 12 the application formant filled up by the applicant itself indicated the educational qualification of B. Tech degree in Civil Engineering obtained by him. The petitioner has, at para 11 thereof, himself stated that those eligibility conditions stand satisfied. Petitioner was conscious even at the time of filling up of his form that promotion to the post of Manager Technical would require the educational qualification of B. Tech degree. The respondents have also understood the relevant recruitment rules of 1996 in that fashion. The learned tribunal has also dealt with the contention of the petitioner and arrived at a considered finding that for promotion to these higher technical posts the qualification of B.Tech was a mandatory requirement.
18. Learned counsel for the respondents has also referred to two recommendations made in favour of the petitioner by the Chief General Manager (Technical), Regional Office, Kolkata dated 17th November, 2011 and the Project Director P.I.U/C.M.U., Durgapur dated 16th November, 2011- Annexure C.A./8, which specifically indicate that he is professionally qualified and an experienced person. Professionally qualified would mean holding of the B.Tech degree required for such promotion under the recruitment rules.
19. We, however, find that the supplementary counter affidavit surprisingly does not enclose the minutes of the committee which recommended the petitioner and others for promotion to the post of Manager (Technical) for the reasons best known to the respondents though there was a specific direction upon the N.H.A.I. to produce the relevant records relating to the promotional exercise.
20. Learned counsel for the respondents has also taken us to the documents relating to the reversion of the petitioner. It is submitted that the notings leading to reversion of the petitioner and others showed that the background of the judgment rendered by the Apex Court in the case of Orissa Lift Irrigation (Supra) and the promotion granted to the petitioner and others were duly considered at different hierarchy of the respondent organization. The notings would also show the decision making process for creation of four post of technical assistant for accommodating the petitioner and others who were to be reverted from the post of Deputy General Manager (Technical) or Manager (Technical).
21. Learned counsel for the respondents has referred to the notings at page 179 of the supplementary counter affidavit, where the 13 representation submitted by the petitioner was also duly considered. She has also referred to the notings of the General Manager (H.R. /Admin-I) at page 182 of the affidavit, which pertains to implementation of the Hon'ble Supreme Court's order dated 03.11.2017 and with respect to engineering degrees obtained through distant learning mode from J.R.N. Rajasthan Vidyapeeth. The creation of four post of Technical Assistant by the Board meeting held on 23rd December, 2020 has also been mentioned there.
22. Learned counsel for the respondents submits that if the issuance of any show cause notice upon the petitioner before reversion was a useless formality the requirement of principles of natural justice could not be insisted upon. Learned counsel for the respondents has relied upon the case of Md. Sartaj and another versus State of U.P. and others reported in (2006) 2 SCC 315 Para 14 to 20 in support of the proposition that when the incumbent lacks requisite qualification, no opportunity of hearing is required to be given as no prejudice is going to be caused to the employee. Reliance has also been placed on Dharampal Satyapal Limited vs. Deputy Commissioner of Central Excise Gauhati & Ors reported in (2015) 8 SCC 519 Para 40-42, 44. She submits that the Apex Court has, in the instant case, held that when fair hearing would make no difference no purpose would be served in remanding the case to the authorities.
23. Learned counsel for the respondents has relied upon two decisions of this court in L.P.A. No. 512 and 647 of 2018, Para 14 and 15 and L.P.A. No.776 of 2019, Para No. 16 and 17 in support of the proposition that observance of principles of natural justice is not mandatory when no chance of improvement of any factual aspect is possible on the part of the employee. Moreover, if an illegality have been committed, the same ought not to be perpetuated. Learned counsel for the respondents has also placed reliance upon the decision of the Apex Court in Union Public Service Commission vs. Sukanta Kar reported in (2007) 9 SCC 555 para 10 and 11 and in the case of Union of India and another vs. Narendra Singh reported in (2008) 2 SCC 750, Para 34.
24. Relying upon these decisions, it is submitted that when the reading of the recruitment rules clearly leads to only one interpretation that requirement of qualification of B.Tech degree was a must for deputationist as well as in service candidates, there was no necessity to issue any show cause notice before passing an order of reversion against the petitioner as it would be a useless formality. As such, the impugned decision of the 14 respondent N.H.A.I to revert the petitioner cannot be faulted. It has been made in furtherance of the directions passed by the Hon'ble Apex Court in the case of Orissa Lift Irrigation (Supra). Petitioner cannot continue to avail of the benefit accrued to him by virtue of the qualification of B.Tech degree which stands invalidated. As such, the impugned judgment rendered by the learned C.A.T. does not suffer from any infirmity in law or on facts. The writ petition is devoid of merits and therefore deserves to be dismissed.
25. Learned counsel for the petitioner submits that the decisions cited by the respondents are all in relation to a selection exercise where the incumbent lacks the essential educational qualification. The present case relates to an employee who has remained in the organization for 25 years and was granted promotion to two higher posts. The promotions were granted with effect from 18th May, 2012 to the post of Manager (Technical) and thereafter to the post of Dy. General Manager (Technical) with effect from 18th May, 2016. As such, a vested right has been created in favour of the petitioner, which could not have been taken away without giving him an opportunity to show cause and defend himself. The respondents cannot say that only one interpretation of the relevant recruitment rules of 1996 is possible in view of the disjunctive clause 'or' used in column 8 of the relevant rules.
26. We have considered the submission of the learned counsel for the parties at length. We have also gone through the pleadings and the relevant documents placed on the record. We have also gone through the judgments cited by the parties in support of their rival stands and also the decision of the Apex Court in the case of Orissa Lift Irrigation (Supra).
It be observed at the outset that in the case of Orissa Lift Irrigation Corporation Limited (Supra), the Apex court was considering the issue whether the prescribing and approving authorities for grant of degrees in engineering is within the domain of All India Council of Technical Education (A.I.C.T.E) or the Distance Education Council (D.E.C.) under the Indira Gandhi National Open University Act, 1985. The Engineering degrees awarded by the J.R.N. Rajasthan Vidyapeeth and other such universities, such A.A.I., I.A.S.E. and V.M.R.F. were conducted by open and distant learning mode approved by D.E.C. but not approved or expressly authorized by A.I.C.T.E. Therefore the engineering degrees conferred through open distant learning mode were held to be illegal. The consequences and relief for students obtaining benefits by promotion in 15 government services on the basis of such degree were laid down by the Apex Court. The operative direction issued by the Apex Court contained at paragraph 66 are being profitably quoted hereinbelow.
"66. Accordingly, we direct:
66.1. The 1994 AICTE Regulations, do apply to deemed to be universities and the deemed to be universities in the present matter were not justified in introducing any new courses in technical education without the approval of AICTE. 66.2. Insofar as candidates enrolled during the academic sessions 2001-2005, in the present case the ex post facto approvals granted by UGC and their authorities concerned are set aside.
66.3. Consequent to aforesaid Direction II, all the degrees in Engineering awarded by deemed to be universities concerned stand suspended.
66.4. AICTE shall devise the modalities to conduct an appropriate test(s) as indicated in para 58 above. The option be given to the students concerned whose degrees stand suspended by 15-1-2018 to appear at the test(s) to be conducted in accordance with the directions in para 58 above.
Students be given not more than two chances to clear test(s) and if they do not successfully clear the test(s) within the stipulated time, their degrees shall stand cancelled and all the advantages shall stand withdrawn as stated in paras 57 and 58 above. The entire expenditure for conducting the test(s) shall be recovered from the deemed to be universities concerned by 31-3-2018.
66.5. Those students who do not wish to exercise the option, shall be refunded entire money deposited by them towards tuition fee and other charges within one month of the exercise of such option. Needless to say, their degrees shall stand cancelled and all advantages/benefits shall stand withdrawn as mentioned in para 58.
66.6. If the students clear the test(s) within the stipulated time, all the advantages/benefits shall be restored to them and their degrees will stand revived fully.
66.7. As regards students who were admitted after the academic sessions 2001-2005, their degrees in Engineering awarded by the deemed to be universities concerned through distance education mode stand recalled and be treated as cancelled. All benefits secured by such candidates shall stand withdrawn as indicated in para 59 above. However, the entire amount paid by such students to the deemed to be universities concerned towards tuition fees and other expenditure shall be returned by the deemed to be universities concerned by 31-5- 2018, as indicated in para 59.
66.8. By 31-5-2018 all the deemed to be universities concerned shall refund the sums indicated above in para 66.7 and an appropriate affidavit to that extent shall be filed with UGC within a week thereafter.
66.9. We direct CBI to carry out thorough investigation into the conduct of the officials concerned who dealt with the matters and went about granting permissions against the policy statement, as indicated in para 60 above and into the conduct of institutions who abused their position to advance 16 their commercial interest illegally. Appropriate steps can thereafter be taken after culmination of such investigation. 66.10. UGC shall also consider whether the deemed to be university status enjoyed by JRN, AAI, IASE and VMRF calls for any withdrawal and conduct an inquiry in that behalf by 30-6-2018 as indicated above. If the moneys, as directed above, are not refunded to the students concerned, that factor shall be taken into account while conducting such exercise. 66.11. We restrain all deemed to be universities to carry on any courses in distance education mode from the academic session 2018-2019 onwards unless and until it is permissible to conduct such courses in distance education mode and specific permissions are granted by the statutory/regulatory authorities concerned in respect of each of those courses and unless the off-campus centres/study centres are individually inspected and found adequate by the statutory authorities concerned. The approvals have to be course specific.
66.12. UGC is further directed to take appropriate steps and implement Section 23 of the UGC Act and restrain deemed to be universities from using the word "university" within one month from today.
66.13. The Union of India may constitute a three-member Committee comprising of eminent persons who have held high positions in the field of education, investigation, administration or law at national level within one month. The Committee may examine the issues indicated above and suggest a road map for strengthening and setting up of oversight and regulatory mechanism in the relevant field of higher education and allied issues within six months. The Committee may also suggest oversight mechanism to regulate the deemed to be universities. The Union of India may examine the said report and take such action as may be considered appropriate within one month thereafter and file an affidavit in this Court of the action taken on or before 31-8-2018. The matter shall be placed for consideration of this aspect on 11-9- 2018.
27. The narration of facts recorded in the opening paragraphs of this judgment show that this applicant who was working as Technical Assistant on redesignation in N.H.A.I. since 1997 also applied under the advertisement issued in 2011 for filling up of the post of Manager (Technical). Petitioner had, in the meantime, obtained B.Tech degree from J.R.N. Rajasthan Vidyapeeth. The advertisement was for filling up of the post of Manager (Technical) through deputation but in service candidates were also asked to apply. Petitioner applied thereto. Petitioner got promoted after two rounds of litigation before learned C.A.T. The promotions were given effect to by virtue of the office order dated 27th February, 2015 issued by the Deputy General Manager (H.R.-II). The office order dated 27th February, 2015 reads as under.
"In deference of CAT (PB) order dt. 30.10.2014 in OA No. 1275/2014 with reference to earlier CAT (PB) common order dt. 11.12.2012 in OA No. 299/2012 and on the recommendation of the Review Selection Committee vide minutes dt. 02.02.2015, the Competent Authority has accorded 17 approval to promote Sh. Purna Chandra Kahili, Technical Assistant presently posted at NHAI-HQ to the post of Manager (Tech.) in the scale of pay of Rs. 15600-39100/- (PB-3) + Grade Pay of Rs.6600/- on regular basis w.e.f. the date of assumption of charge to the promoted post in the grade of Manager (Tech.).
2. Sh. Purna Chandra Kahili shall be on probation for one year from the date of joining to the promoted post and his confirmation in the grade of Manager (Tech.) shall be subject to condition of satisfactory completion of probation period.
3. This issues with the approval of the Competent Authority." (Emphasis supplied)
28. The advertisement issued in August, 2011, in its opening paragraph, invited application, from officers under Central/State Government Departments/Autonomous bodies/Public Sector Undertakings for appointment on deputation basis to the post of Manager Technical in Group A. It further clarified that in the case of any discrepancy in eligibility/experience criteria, the recruitment rules as per N.H.A.I. regulation shall prevail. As per Para 5 of the advertisement, regular employees of N.H.A.I., who fulfill the eligibility condition prescribed for promotion to any of the above mentioned posts or on the last date for receipt of application, could also apply. It was further indicated that in case they are selected their appointment will be on promotion basis as per the guidelines on the subject. The office order dated 27th February, 2015 makes it clear that petitioner was promoted to the post of Manager (Technical) on regular basis with effect from the date of assumption of charge and not directly appointed or treated as a deputationist. The petitioner therefore came to occupy the post of Manager (Technical) on promotion and not on deputation. We will now advert to the relevant rules which apply for the post of Manager Technical under the 1996 Regulations. They are extracted hereunder:
"Name of the Post No. of Posts Classification of post Scale of Pay 1 2 3 4 Manager (Technical) 9 (Nine) Group A/B 3000-4500 Method of Recruitment Age limit (in respect of direct recruits only) 5 6 Transfer on deputation/ 40 years Promotion/direct recruitment Educational and other qualification required 7 18 Educational Qualification Essential
(i) Degree in Civil Engineering from a reputed Institution of Technology or a recognized University.
Desirable Post Graduate Degree in Civil Engineering in the field's relating to Highway Engineering and/or Post Graduate Degree in Management/MBA from an Institute of repute.
Experience Should, have put in at least 3 years service in a responsible Senior position in a Govt. Deptt./Public Sector Undertaking/ Commercial Organisation of repute and should be working In a analogous post or the post next below or equivalent for at least 3 years.
Desirable Should be well versed in the field of Highway/ Bridge Engineering dealing with Planning, Pre-qualification of Consultants and Contractors; Financial Appraisal of Projects; Detailed Designing, Techno-financial reviews; Evaluation of Tenders Contract Management; Monitoring Liaison with major construction agencies/Govt. Bodies; Performance Appraisal of Major Highways/Bridge Projects."
In case of promotion or Deputation/ Transfer-
Gradefrom which promotion/ Deputation/ Transfer to be made 8 By deputation/transfer from candidates already on the panel of Under Secy. in the Govt. of India and possessing the Educational qualifications stipulated in Col. 7 or from candidates holding analogous post in a Central/State Govt.
Deptt./ Autonomous Body/ Public Sector Undertaking or with 3 years regular service in the scale of Rs.2200-4000 or 6 years in the scale of Rs. 2000-3500.
Period of Deputation Not more than 3 years but may be extended with the approval of Central Govt.
It is the case of the respondents that in case of promotion also the educational qualification as stipulated under column 7, i.e. a degree in Civil Engineering from a reputed institution of technology or a recognized University, is a mandatory requirement.
29. It is the case of the petitioner, as pleaded before the learned C.A.T. also that column 8 contains different criteria for deputation/transfer and promotion. For filling up of the post of Manager (Technical) through 19 deputation/transfer a candidate on the panel of Under Secretary, the Govt. of India is required to possess the educational qualification stipulated in Column 7. For promotion to Manager (Technical), candidates holding analogous post in a Central/State Government Department/Autonomous Body/Public Sector Undertaking can also apply. The petitioner contends that the third class is in respect of in service candidates, who are required to have three years of regular service in the scale of Rs.2,200-4,000/- or six years in the scale of Rs. 2,000-3,500/- or the corresponding revised scale under the subsequent pay revision. The expression 'or' used under column 8, therefore, cannot be read conjunctively in case of persons who are in- service candidates. The requirement of educational qualification stipulated in column 7 is for persons on deputation or transfer holding the post of Under Secretary in the panel of government of India. By according an interpretation that the categories indicated in column 8 either from candidates coming from deputation and transfer or from analogous posts in Central/State Government Departments/autonomous Bodies/Public Sector Undertakings or incumbents with three years regular service in a particular scale of pay Rs.2200-4000/- or for six years in scale of pay Rs.2000-3500/-; all were required to fulfill the essential educational qualification of degree in Civil Engineering is one line of construction of the eligibility criteria prescribed under the recruitment rules. The respondents have proceeded to take a decision to revert the petitioner on this line of interpretation, but without giving him any opportunity to show cause or to defend his position. From perusal of the judgment of the learned C.A.T., Principal Bench, Delhi, it appears that the applicants therein, two of whom were in the same category as the present petitioner and other being the deputationist had not specifically pleaded this ground nor was any finding rendered on the crucial expressions 'or' used in column 8 of the recruitment rules. The learned Delhi High Court in the case of Ram Babu, a Deputationist, was not called upon to interpret the relevant column 8 of the rules in question. The said applicant Ram Babu, being the deputationist, had neither controverted the stand of the respondent N.H.A.I. brought on record through their counter affidavit. The present issue, therefore, has not been specifically examined in that light either by the Learned C.A.T., Principal Bench, Delhi or by the Delhi High Court. The learned C.A.T. in the case of the present petitioner has, at paragraph 18, also observed that there is some vagueness in the text of column No.8, which provides for qualifications stipulated in column 7 for deputation/transfer from candidates already on the panel of Under/Deputy 20 Secretary, but is silent about candidates holding analogous posts in a Central/State Government Department/Autonomous Bodies/Public Sector Undertakings. However, it has gone on to hold that all these posts are senior rank posts in Technical side and manned by persons, who need to have the necessary technical qualification. Petitioner before us was holding the post of diploma prior to acquisition of the B.Tech degree from the J.R.N. Rajansthan Vidyapeeth. It has also been brought to the court's notice that the Ministry of Road Transport and Highways vide notification dated 14th March, 2022 had framed the National Highway Authority of India (Recruitment, Seniority and Promotion) Amendment Regulations, 2022, which provides for eligibility criteria for promotion to different posts including Manager (Technical) which is at Serial No.8. It categorically shows that in case of recruitment by promotion the feeder cadre post will be Deputy Manager (Technical) with four years regular service in that post, i.e. level 10 of pay matrix (Rs.56,100-1,77,500/-). Educational and other qualifications required for direct recruits are specifically prescribed at column 7 which is a degree in Civil Engineering from a recognized University/Institute. The 1996 recruitment rules did not explicitly classify different categories in column 8 i.e. in the matter of recruitment to the post of Manager (Technical) by Deputation/transfer or promotion. The order of reversion has entailed adverse civil consequences that cannot be refuted; petitioner having worked for 10 years upon being promoted with effect from 2012 to the post of Manager (Technical) and thereafter to the post of Deputy General Manager (Technical) in 2016 till he was reverted by the order dated 1st March, 2021 to the newly created post of Technical Assistant.
30. The notings produced by the respondents relating to the decision of reversion show that one officer in the rank of D.G.M. (H.R./Admin.-II) had opined that reasonable opportunity of being heard should be given to these officers working as Manager Technical or as D.G.M. (T) and P.D. before downgrading them to the level of Technical Assistant. The noting of the said officer also refers to the decision of the Chairman and the Board at Para 3 (ii) in respect of these officers based on the recommendation of a three member committee. One member of the committee has submitted a note on 16th December, 2020, which was in disagreement with the remaining members. It further shows that although the committee had been reconstituted before submission of this note and the recommendation of the 21 reconstituted committee was submitted on file, the matter was decided in the meeting of the Board held on 23rd December, 2020. The note of the disagreement submitted by Shri Rajesh Gupta, C.G.M. (Fin) could not be made part of the records for deliberation at the competent level. However, since these are notings at the different levels of hierarchy of the officials in the organization, they do not constitute a final decision or opinion of the competent authorities of the organization. Petitioner has placed reliance on these notings to suggest that the interpretation suggested by the petitioner on construction of column 8 of the relevant rules of 1996 was also a plausible view in the organization itself and amongst the members of the committee. On this plank it has been argued that had there been an opportunity of hearing and show cause given to the petitioner the alternative construction of the relevant rules would have been placed before the competent authority of the N.H.A.I. before taking a decision on his reversion. Failure to do so has led to serious adverse civil consequences.
31. Learned counsel for the parties have relied upon judgments in support of their rival stands. While petitioners has relied upon certain decisions on the proposition of the requirement of pre decisional hearing as indicated in the case of H.L Trehan (supra) and Sharwan Kumar Jha (supra), respondents have relied upon certain decisions which lay down that in case opportunity of hearing is a useless formality and the facts are admitted or undisputed the requirement of principles of natural justice can be dispensed with as it would not lead to a difference in the final outcome. In the case of Sukant Kar (Supra), relied upon by the respondents, a perusal of para 10 of the report shows that in column 8 of the recruitment rules it was specifically provided that the educational qualification prescribed for direct recruits will apply in the case of promotees but not age qualification. That is the distinction of the facts of the said case from the facts of the present case. Respondents have also relied upon the judgment of the Apex Court in the case of Union of India and another versus Narendra Singh (supra), in particular paragraph 32 and 33 thereof. The facts in the case of Narendra Singh show that the mistake was of the department; the respondent was promoted though he was not eligible and qualified, still a notice to show cause was served upon the employee. In these background facts the opinion of the Apex Court in paragraph 34 itself shows that notice was issued to the respondent employee, his explanation was sought and thereafter the order of reversion was passed. In the present case the 22 respondents have not issued any notice upon the petitioner before the decision to revert him had been taken. The petitioner had, on its own, made a representation during currency of the deliberations in the organization, which were delved upon at the intermediate level in the hierarchy of officials but no decision of the competent authority on his representation have been shown or brought on record in the supplementary counter affidavit filed by the respondents on 30th August, 2022. The present case presents two plausible interpretations of column 8 of the recruitment rules, 1996 on the requirement of essential educational qualification of B.Tech degree by a person who is to be promoted as an in-service candidate or from deputation.
32. Learned counsel for the respondents has also placed reliance upon the case of Md. Sartaj and another versus State of U.P. and others reported in (2006) 2 SCC 315, Para 14 to 20, in support of the proposition that when the incumbent lacks requisite qualification there was no requirement of hearing as no prejudice would be caused to the employee. This ratio of the instant case would not come to the aid of the respondents as there appears to be two plausible interpretation of column 8 of the recruitment rules 1996 relating to reading of the essential educational qualification prescribed under column 7 with that of the in-service candidates classified under Column 8 or that of the deputationist categorically specified in Column 8. In the case of Md. Sartaj the Apex Court has relied upon the judgment of the celebrated decision in the case of S.L. Kapoor vs. Jagmohan reported in (1980) 4 SCC 379, at para 14, which reads as under:
"14. However, in S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] this Court has also observed as under: (SCC p. 395, para 24) "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non- observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs."
33. The Apex Court had opined that the principles of natural justice know of no exclusionary rules dependent on whether it would have made 23 any difference if natural justice have been observed. It was also held that non observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. However, the Apex Court went on to further observe that where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. However, taking a cue therefrom in the facts of the present case it cannot be stated without risk that the position as propounded by the respondents is admitted or an indisputable position in law. There can be two interpretations of the recruitment rules and it cannot be said that only one conclusion or one interpretation is possible. As such, granting an opportunity to show cause to the petitioner to defend his position would be in consonance with the principles of natural justice when the action of the respondents were going to adversely affect the petitioner. Not doing so may lead to miscarriage of justice. Granting an opportunity to the petitioner before reverting him would have accorded the competent authority to take into consideration the other plausible interpretation of the relevant recruitment rules. The competent authority would have had the benefit of both the interpretations while taking an informed decision on the question of reversion of the petitioner. In case it was found after hearing the petitioner that his promotion was not dependent upon the educational qualification of B. Tech, there would have been no occasion to withdraw such benefit, if any, relying upon the directions of the Apex Court in the case of Orissa Lift Irrigation Corporation Limited (supra) paragraph 66.7. We, however, consciously refrain from observing any final opinion on the interpretation of column 8 of the recruitment Rules relating to promotion to the post of Manager (Technical) under the N.H.A.I. However, since the order of reversion has entailed serious adverse civil consequences upon the petitioner without any opportunity to show cause or furnish his explanation, we are unable to uphold the judgment of the learned C.A.T., whereby the challenge to the order of reversion passed by the N.H.A.I. has been rejected.
2434. The impugned judgment of the learned C.A.T is accordingly set aside. Consequently, the order of reversion dated 01.03.2021 and the order of transfer dated 18.02.2021 passed against the petitioner are also set aside.
35. Respondents shall take a fresh decision on the question of reversion of the petitioner in accordance with law after according due opportunity to the petitioner to show cause and furnish his explanation. Such exercise be carried out within a reasonable time, preferably within a period of 12 weeks from the date of receipt of a copy of this order.
(Aparesh Kumar Singh, J.) (Deepak Roshan, J.) sm/pramanik