Central Administrative Tribunal - Delhi
Col (Retd.) Khushwant Singh vs Union Of India on 15 February, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA No. 83/2011
Reserved on : 10.02.2012
Decided on : 15.02.2012
Honble Mr. Justice V.K.Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Col (Retd.) Khushwant Singh
S/o S.Chanan Singh
R/o House No.524,
Plot No.5A, Air Force Naval,
Officer Enclave, Sector-07,
Dwarka, New Delhi-110075.
Presently working as:-
G.M. (Project Director) PILI
Palanpur, NHAI, Gujarat. Applicant.
(By Advocate: Shri Rajender Singh)
versus
1. Union of India
Ministry of Road Transport and Highways,
Through its Secretary,
Transport Bhawan,
1, Parliament Street, New Delhi-110001.
2. National Highways Authority of India
Through its Chairman
Ministry of Road Transport and Highways
Dwarka
New Delhi - 110075
3. The search-cum-selection Committee
through its Chairman
Ministry of Road Transport and Highways
Transport Bhawan
1, Parliament Street,
New Delhi - 110001.
4. Sh.R.S.Gujral
Chairman
The Search-cum-Selection Committee and
Secretary, Ministry of Road Transport & Highways
Transport Bhawan
1, Parliament Street,
New Delhi - 110001.
5. Sh.Rakesh Nagar
GM(HR/Admn.)-1
National Highways of India
Ministry of Shipping, Road Transport & Highways
G-5&6, Sector-10, Dwarka,
New Delhi - 110075
6. Sh.S.C.Jindal
CGM(Tech.)
7. Sh.B.S.Singla
CGM (Tech.)
8. Sh.D.A.Vittalrao
CGM (Tech.)
9. Sh.I.G.Reddy
CGM (Tech.)
10. Sh.A.K.Singh
Contract Management Specialist
11. Sh.R.P.Khandelwal
CGM(Safety)
Respondent Nos.6 to 11 through
GM (HR/Admn.1),
National Highways Authority of India
Ministry of Road Transport and Highways,
G-5 and 6, Sector 10,
Dwarka, New Delhi - 110075
12. The Joint Secretary (Est.)
Ministry of Defence
South Block
New Delhi - 110011
13. The Directorate of Works-II Branch,
E-2(WPC),
Ministry of Defence
Govt. of India,
Kashmir House,
Rajaji Marg,
New Delhi-110011 . Respondents.
(By Advocate: Shri Jos Chiramal for R-1 to 5 and Shri Gaurav Kaushik
and Shri Rajeev Manglik for R-12)
ORDER
Dr.Ramesh Chandra Panda, Member (A):
The only controversy that has been brought out in the present Original Application for our consideration and determination is that whether the post of Lieutenant Colonel is equivalent to the post of Superintending Engineer (SE) or not?
2. We may refer to the facts of the case briefly, as may be relevant to the above issue. The Applicant joined the Indian Army as Second Lieutenant on 18.06.1983. He was B.Sc. Engineering (Civil) passed in the year 1980 and, however, while he was working in the Indian Army as Lieutenant Colonel he completed the Master of Engineering in the year 2001. He continued to work as Lieutenant Colonel with effect from October 1998 upto January 2001 and was posted as Staff Officer Grade-I (Design) in the Office of Chief Engineer, Udhampur Zone from January 2001 to September 2003. Thereafter, he worked in the Border Road Organization (BRO) from September 2003 to August 2005. On 01.08.2005, he joined on deputation as General Manager (Tech.) in the National Highways Authority of India (NHAI). It is the case of the applicant that pursuant to the applications invited by the NHAI for the post of Chief General Manager (CGM) in the year 2008, he had applied for the said post. However, he did not pursue the same as one of the conditions was that those applicants who would be due to retire within two years in their parent cadre would not be eligible and the applicant, in the normal course was due to retire in NHAI on 28.02.2010 in his parent Department. In the meantime, the applicant got absorbed in NHAI with effect from 26.06.2010 in the post of General Manager (Tech.) when his pay was fixed at Rs.52150/- in the Pay Band-IV with grade pay of Rs.8700/-. The NHAI issued an advertisement in April 2010 calling for applications to fill up the post of CGM and the last date of submission for the same was 17/18th May 2010. The essential educational qualification as well as experience for eligibility to be considered for the said post of CGM envisaged in the advertisement was as follows:
A. Essential Education Qualification Degree in Civil Engineering from a reputed Institution of Technology or a recognized University.
B. Essential Experience:
(i) Should be working in an analogous post or the next below (General Manager/Superintending Engineer or equivalent) for at least 6 years on a regular basis; and
(ii) 18 years experience at Group A (Pay scale of Rs.8000-275-13500/-) or equivalent level post or higher; and
(iii) 12 years experience in Highways/Road/Bridge Engineering. The applicant submitted his application on 12.05.2010 for the said post which was forwarded by the competent authority to the 5th respondent vide letter dated 15.05.2005. It is the case of the applicant that he fulfills essential educational qualification and experience. The respondents-NHAI disputed items (i) of the essential experience in case of the applicant and held the view that his experience in the post of Lieutenant Colonel was not equivalent to SE and he did not fulfill the B(i) condition. One of the essential experiences in the advertisement is that the applicant should be working in an analogous post (which means CGM) or the next below post (General Manager/Superintending Engineer or equivalent) for at least 6 years on regular basis. It is averred that since he was working earlier in the rank of Lieutenant Colonel and the same being equivalent post to that of Superintending Engineer he would fulfill 6 years experience in the SE equivalent post (experience in the post of Lieutenant Colonel for a period of 5 years 10 months and General Manager post in NHAI for about 4 years and 6 months). Therefore, he would be eligible to be considered for the post of CGM. It is further the case of the applicant that he was promoted to the rank of Lieutenant Colonel in the year 1998 and was working since then in various posts of Lieutenant Colonel, Staff Officer Grade-I and General Manager and claims that all those posts are equivalent to the post of Superintending Engineer in the Central Engineering Services (CES) as also in the General Reserved Engineering Force (Border Roads Organization). In this regard, the applicant had submitted a representation on 18.08.2010 to the NHAI to consider his application for the said post of CGM. No response was received immediately on the subject. But, he received a letter dated 20.09.2010 issued by the 5th respondent in which, inter alia, it was indicated that in the absence of any clarification from JS (Estt.), Ministry of Defence, it has been decided to follow the rank equivalence of Colonel of Army vis-`-vis SEs of the Central Government and your application for the post of CGM (Tech.) was accordingly screened and you were not found eligible for consideration for this post. The applicant came to know that the interview for filling up CGM post was to be held on 11.10.2010. Thus, impugning the communication dated 20.09.2010 he approached this Tribunal in OA 3487/2010, which was decided by this Tribunal on 18.10.2010 wherein the applicant was allowed to withdraw the application with liberty to file a fresh application after impleading the selected candidates. It is stated that the NHAI has issued one more advertisement for the post of CGM (Tech.) and the applicant without any prejudice to his right has applied for the said post. In the background of the above facts, impleading the selected candidates in the array of party respondents, the applicant is before this Tribunal for the second time in the instant OA praying for the following reliefs:
(a) Allow the Application filed by the Applicant.
Quash the letter dated 22.09.2010 issued by the Respondent No.5 on behalf of National Highways Authority of India.
(c) Quash the selection made by the Respondent No.1 to 5 pursuant to the interview conducted on 11.10.2010.
Direct the Respondent to consider the application of the Applicant and appoint him for the post of Chief General Manager.
Pass other and further orders as this Honble Court may deem fit and proper in the facts and circumstances of the case.
3. Shri Rajender Singh, learned counsel appearing on behalf of the applicant, would contend that feeder category for appointment/promotion to the post of CGM in NHAI is General Manager with six years of experience which the applicant does not have but the essential experience of six years in analogous post of the SE he had as the applicant worked as Lieutenant Colonel in the Indian Army and BRO before joining as General Manager. Thus, the counsels submission was that the applicant would be eligible to be considered for the CGM post in NHAI. It is his main contention that the applicant having been Lieutenant Colonel in the Indian Army right from the year 1998 and with experience in the Border Roads Organization and thereafter as the General Manager in NHAI, he would be eligible to be considered for the post as he had requisite essential experience in the posts equivalent to SE. In support of this contention, he drew our attention to the Warrant of Precedence right from the year 1937 onwards to show that Lieutenant Colonel and SE get bracketed in the same entry of the Warrant of Precedence. It is contended that this issue of equivalence of Lieutenant Colonel with SE has been settled as far as back on 1937. As per the Warrant of Precedence of India published in the Notification dated 16.06.1937 (in para-47 of the Notification) the Lieutenant Colonel has been equated with that of the Superintending Engineer. The Notifications on the same line are being continuously published equating Lieutenant Colonel with the SE. The last such Warrant of Precedence has been published as late as on 14.08.2007 wherein in Para-38, the rank of Lieutenant Colonel is shown to be equivalent to the Superintending Engineer. The Entry Number 38 brings together the Lieutenant Colonels, Conservators of Forests, IAS and Foreign Service officers with 18 years standing and Superintending Engineer. It is, therefore, argued during the hearing that under this broad nomenclature, the rank of the Lieutenant Colonel with those of the SE has been established. It is further submitted that as per letter dated 10.05.1986 issued by the Ministry of Defence at the Sl No.5 of the Appendix A, staff equivalent Grade-I has been equated to Lieutenant Colonel and the SEs. Similar letter has been issued time and again by the Government of India in the Ministry of Defence.
4. The learned counsel for the applicant would also draw our attention to the letter issued by the Ministry of Defence on 28.05.1986 wherein the Lieutenant Colonel, and SE have been bracketed in the column (b) in the entry-5 under the heading of Staff Officer Grade-1. He refers to the letter of the Deputy Secretary, Government of India written to the Chief of Army Staff dated 06.09.2002 which is the extract of the establishment Statement for MES Lower Formations (page 140 of the Paper Book) to submit that both Lieutenant Colonel and SE are in the same group. Further the Government of India in their letter written to the Army Staff dated 26.11.2008 wherein the existing establishment has been indicated, has mentioned Lieutenant Colonel with the Director of Works and SE provides the numbers of posts. Shri Singh brought to our notice a letter written by the Ministry of Defence under RTI Act which inter alia stated that the post of Staff Officer Grade-I was equal to the Lieutenant Colonel and SE.
5. Another set of arguments advanced by the applicants counsel to equate the post of Lieutenant Colonel with the SE, was based on the stand of the Government of India before various Courts and Tribunals where the equivalency of the Lieutenant Colonel with SE has been cited. In this context, he refers to the judgment of the Honble High Court in WP(C) No.1945/2007 and OA No. 85/2005 decided by the Tribunal on 09.01.2007 and OA No. 2986/2006 decided on 29.06.2006, to buttress his argument that the post of SE is equivalent to Lieutenant Colonel, Additional Chief Engineer is equivalent to Colonel and Chief Engineer is equivalent to Brigadier. He further contends that historically, since the creation of MES, Lieutenant Colonel has always been equated with the SE. The law laid down by the Honble High Court of Delhi and the Tribunal is relevant to the equivalency of the Lieutenant Colonel with the SE.
6. Learned counsel for the applicant highlighted inconsistent stand taken by the NHAI while rejecting application of the applicant for consideration to the post of CGM. The reason given by the NHAI is selection for the year 2008 that the applicant is having experience less than six years and relied upon a Note dated 11.01.1991. In the next selection year (2009), the additional reason given by the NHAI is that the applicant was due to retire within two years from the parent cadre. When his case came up in 2010, the NHAI took the additional stand stating that the Lt. Colonel is not equivalent to the SE. It is argued that this type of shifting stand taken by the NHAI does not demonstrate effectively that the post of Lieutenant Colonel is not equivalent to the SE.
7. Referring to the stand taken by the Screening Committee of the NHAI, learned counsel for the applicant would submit that the said Committee in its Meeting dated 20.12.2009 has decided in reference to the applicants representation to refer the case to the competent authority for a decision. The Committee came to the conclusion that if the total period spent by the applicant as Staff Officer Grade-I in MES and BRO and GM (Tech.) in NHAI could be combined the applicant was fulfilling the requisite experience in the equivalent post of SE and the Chairman, NHAI having the power to relax the age, his case should be placed before the Chairman for proper decision but the recommendations of the Screening Committee was never placed before the competent authority for a decision. This has prejudiced the applicant. Further, referring to the affidavit filed by the Ministry of Defence, he would state that the claim of the applicant that Lieutenant Colonel is an equivalent post to that of SE has been supported. In view of the above contentions, Shri Rajender Singh urges to allow the OA.
8. On receipt of the notice from the Tribunal, the official respondents have filed their counter. None of the private respondents have filed their reply affidavit, nor have been represented through any counsel. Shri Jos Chiramel, learned counsel represented the official respondents no. 1 to 5 and Shri Gaurav Kaushik along with Shri Rajeev Manglik argued on behalf of the 12th respondent, namely Ministry of Defence. It is noted that 12th respondent first filed a generic reply affidavit on 2.6.2011 and later on one more affidavit on 06.07.2011 but only after our specific direction to file the affidavit to clearly indicate whether the Lieutenant Colonel is equivalent post to that of SE, one more affidavit was filed by the Ministry of Defence on 21.12.2011. We are rather dissatisfied with three affidavits filed by the Ministry of Defence, as there is no specific response to our query either admitting or denying the equivalence of the Lieutenant Colonel with SE.
9. Shri Joes Chiramal, learned counsel representing the respondents no.1 to 5 submitted that Ministry of Defence in their additional affidavit have reiterated the stand that there is no equivalence established between Lt.Col.and SE, as they are governed by separate service rules and are having separate line of promotion and not by any notification or Gazette issued by the Government in this regard. It is stated that the applicant meets eligibility criteria including experience for analogous post of GM, when his application for selection by way of deputation has been forwarded to NHAI. The above averment was denied by Shri Chiramal, and contended that the applicant tried to take undue advantage of the said stand in his reply affidavit. NHAI has clarified the position in its additional affidavit that the Applicant was not in an analogous post, but was selected to the post of General Manager on the principle of the next below grade with 3 years experience. Even in the case of the applicant for the post of GM(Technical), he did not figure in the list of candidates who were clearly eligible and Shri Chiramal referred to the minutes of Screening Committee meeting only upon relaxation of the required experience he was ultimately selected. In this regard NHAI has also enclosed documents to show that several Lt. Cols. have been appointed in NHAI in the past as DGM (Technical) as well. Their appointments will also be affected in case the contention of the applicant (which otherwise is not tenable in law or on facts) if the applicants argument is accepted. Further, the post advertised was GM(Tech) in the pay scale of Rs. 14300-400-18300 whereas the applicant was holding the post of Lt. Col. In the pay scale of Rs.13500-400-17100, which was the next below grade. Referring to the warrant of precedence cited by the applicant, it is submitted that the ceremonial Notifications cannot be the basis for equivaling. Shri Chiramal contends that there are no apparent contradictions in the NHAI stand while rejecting applicants candidature for the years 2008, 2009 and 2010. He submits that relied on judgments by the applicants counsel do not set any law and are distinguishable. He, therefore, urges that the OA is not maintainable in law and on facts and is liable to be dismissed with costs.
10. Shri Rajeev Manglik, learned counsel representing the Ministry of Defence submits that the present issue is not the issue of equivalency between the rank of Lieutenant Colonel vis-`-vis SE but is the claim of the applicant regarding the period of experience gained by him as Lieutenant Colonel in the Army while working in the Border Roads Organization and the MES. Shri Manglik would submit that the applicant went on deputation to NHAI after he fulfilled all the eligibility criteria as specified by the NHAI in the advertisement including the experience on the analogous post and after considering the experience of the applicant, he was selected in NHAI. He further submits that it is difficult to compare the post occupied by the Army Officer with the post in the civilian side and vice versa. Further, he informs that in so far as the Lieutenant Colonels are concerned, there are two groups viz the 1st group, who are in the time scale of pay and the second group who are senior enough and are in the selection grade Lieutenant Colonel. If the selection grade of the Lieutenant Colonel is considered they may be at par with the SE in the Central Government Engineering Services. The applicant was in the Selection Grade of the Lieutenant Colonel. We get the impression that Shri Manglik has not been clear in his stand on the issue of equivalency and has been stressing on the applicants total experience in the Army, Border Roads Organization and NHAI to consider him for the post of CGM in NHAI/Lieutenant Colonel aspect and raising the selection grade. We are still not clear about the stand of the 12th respondent on the issue.
11. Having heard the contentions of the rival parties with the assistance of their counsel, we perused the pleadings and documents on record. As earlier stated, the issue for our determination is in narrow compass i.e. whether the Lieutenant Colonel post is equivalent to the SE?
12. We may analyze the facts keeping in mind the above issue. The advertisement issued by the respondent NHAI prescribes certain essential qualifications and experience. The applicant fulfills the essential qualifications but the NHAI claims that total period of his essential qualifying experience as GM/SE or equivalent posts, he does not have six years of regular service. This claim of the NHAI has been refuted on the ground that the Lieutenant Colonel post in the MES and BRO if counted as equivalent to SE, he has more than six years of service to be considered eligible for CGM post.
13. It is the contention of the applicant that if his experience as Staff Officer Grade-I, in the Army and Border Roads Organization should be counted for the total period of experience, he would be eligible. But, the issue arises whether the Lieutenant Colonel post is analogous post with that of SE or not? The counsel for the applicant has vary laboriously brought out various arguments to equate the post of Lieutenant Colonel with SE. Various Warrant of Precedence Notifications right from the year 1937 to the latest one of 2007-08 have been referred to. The objective of Warrant of Precedence is to bring the group of officers from Armed Forces, civilian and others together in an entry showing their position vis-`-vis others for ceremonial and protocol purposes in the Government of India. These do not provide equivalency of the posts in Armed forces with the Civilian posts. The question arises do these Notifications declare equivalency. The answer is definite no. Thus such an argument to show equivalency of Lieutenant Colonel with SE is devoid of merits.
14. Learned counsel for applicant has brought in some more information to say that as per the judgments of High Courts and this Tribunal, there is some equivalency between Lieutenant Colonel and the SE but very careful and close study of those judgments does not manifest that there is any definite finding to say that SE and Lieutenant Colonel posts are comparable and analogous with each other. Those judgments do not come to the support of applicants claim.
15. The reasons of rejection of applications submitted by the applicant for the years 2008, 2009, 2010 are complementary to each other. We do not find any conflicting and contradictory stand.
16. On 25.11.2011, we specifically directed the 12th respondent i.e. Ministry of Defence to file an affidavit to inform us about the equivalency of Lieutenant Colonel with the Civilian Post in the engineering stream. We are distressed to note that in three affidavits, there is no clear answer, rather, Ministry of Defence avoided the same. We are not satisfied with this approach.
17. In the backdrop of above position taken by the 12th respondent, it emerges during the final hearing where Shri Manglik brings in a new dimension to the entire issue to say that the applicant has been in the selection grade of the Lieutenant Colonel which is higher than the time scale of pay Lieutenant Colonel posts. Therefore, his submission was that the selection grade of Lieutenant Colonel would be such a position whose equivalency could be considered to be that of SE. This, in our opinion is an indirect way of supporting the applicants cause but still does not address the main controversy.
18. We may refer to the judgments cited by the counsel for the applicant in support of his contentions on the equivalency issue. The Honble High Court of Delhi in Nagendra Singh versus Union of India and others [WP (c) 1945/2007 decided on 22.01.2007] did not equate the Notification where the petitioner (a Lt. Colonel] was challenging the Notification equating Colonel to SE and the equal disciplinary powers of Colonel and SE when it was observed that they are to be in the separate time of reporting so that no SE is to report to a Colonel and vice versa. With regard to the judgment of Jodhpur Bench of this Tribunal in Ajay Dixit versus Union of India and others [OA 85/2005 decided on 09.01.2007) and the order of Madras Bench of the Tribunal in Indian Defence Service of Engineering Associations, Chennai & Another versus Union of India [OA No.2986/2006 decided on 26.09.2006]. The respective cases, we note, did not deal with the equivalence of Colonel and SE. In our considered view, these judgments do not support the applicants claim.
19. We have attempted to check whether there is any judicial precedence on the principal issue of equivalency of Lieutenant Colonel with the posts in Central Engineering Services. We could not get direct answer to the same. However, we may refer to some of the judgments of Honble Apex Court. In the judgment of Honble Supreme Court in S.I.Roop Lal versus Lt. Governor, through Chief Secretary, Delhi and Others (2000-1-SCC-644), the principles of equation of two posts was dealt with and referred to its earlier judgment and observed as follows:
17While determining the equation of two posts many factors other than 'Pay' will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P. K. Roy (1968) 2 SCR 186 : (AIR 1968 SC 850). In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post 'not equivalent'.
20. With regard to the equivalency between Military Engineering Service (MES) and Central Engineering Service (CES), we could not find judgment specifically on the issue but the opening sentence in the 1st para of the Honble Apex Court judgment in Ombalika Das versus Hulisa Shaw [AIR 2002 SC 1685] reads thus Colonel P.O. Sarkar the father of the two appellants before us, was serving as Superintending Engineer (Civil), selection grade equivalent to Colonel in the general reserve engineering force, which is said to be an integral part of armed forces. The above observation clearly indicates that Colonel may be equivalent to SE. Thus, the inference which flows from the above is that Lt. Colonel being immediate junior rank to the Colonel, the post of Lt. Colonel may not possibly be equated with SE.
21. Considering the totality of the facts and the circumstances of the case, we are of the considered opinion that the action of the respondent NHAI cannot be faulted in rejecting the applicants application for the post of CGM on the ground that he does not have at least 6 years of essential experience in General Manager/ Superintending Engineer or equivalent posts.
22. Finding no merits in the case, the OA is dismissed, leaving the parties to bear their respective costs.
(Dr.Ramesh Chand Panda) (V.K.Bali)
Member (A) Chairman
/kdr/