Central Administrative Tribunal - Delhi
Vishnu Darbari vs Mahinder Singh 2000 (7) Scc 210 Wherein ... on 16 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 1247/2013
Reserved on:22.04.2014
Pronounced on:16.05.2014
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. P.K. BASU, MEMBER (A)
Vishnu Darbari
GM(LA/Coord/ESDU
National Highways Authority of India,
G-5 & 6, Sector-10,
Dwarka,
New Delhi. ..Applicant
By Advocate: Shri Nidesh Gupta, Sr. Counsel with Shri Tarun
Gupta and Shri M.K. Ghosh.
1. National Highways Authority of India
Through its Chairman,
G-5 & 6, Sector-10,
Dwarka,
New Delhi.
2. Shri V.K. Sharma
CGM (LA),
National Highways Authority of India
G-5 & 6, Sector-10,
Dwarka,
New Delhi.
3. Dr. A.K. Malhotra
Chief Conservator of Forest,
Head of Forest Office,
Forest Bhawan,
Post Office Duranda,
District Ranchi,
Jharkhand.
4. Mr. P.C. Grover,
CGM (Legal)
Holding additional charge of
CGM (HR&Adm.)
National Highways Authority of India
G-5 & 6, Sector-10,
Dwarka,
New Delhi. ..Respondents
By Advocates: Shri Jose Chiramel for Respondent No.1
Shri A.K. Behera for Respondent No.2.
ORDER
Honble Mr. G. George Paracken, Member (J) The Applicant has been working as General Manager (Land Acquisition and Estate Management/Coordination/Environment & Social Development Unit) with the Respondent No.1-National Highways Authority of India (NHAI for short). His grievance is that competent authority, namely, the Search and Selection Committee set up by the NHAI has denied his fundamental right of consideration for promotion/selection to the post of Chief General Manager (Land Acquisition) [CGM(LA) for short] and Chief General Manager (Administration and H.R) [CGM(A&HR) for short] in an arbitrary and illegal manner. His further grievance is that his representation made against the selection process adopted by the said Committee was again rejected in an arbitrary manner on the ground of delay and not going into the merits.
2. The brief facts of the case: Applicant joined NHAI as Senior Manager (Personnel & Administration) on permanent absorption basis w.e.f. 09.10.1989 (FN). Thereafter, he was promoted as General Manager (Land Acquisition and Estate Management/Coordination/Environment & Social Development Unit). The NHAI advertised two posts of Chief General Managers - CGM(LA) and CGM(A&HR) in September, 2008 in the Employment News. Both the aforesaid posts were Group A in the scale of pay of Rs.18,400-22,400. The recruitment criteria 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. The Applicant applied for both the posts as an internal candidate. Meanwhile, a minor penalty proceedings under Rule 16 of the CCS (CCA) Rules, 1965 was being initiated against him vide Memorandum dated 28.07.2008 and it culminated in the imposition of the penalty of withholding two increments with cumulative effect vide order dated 17.12.2008. The Appellate Authority reduced the said punishment to that of withholding of increment for one year without cumulative effect, vide order dated 03.06.2009.
3. The NHAI constituted two committees to scrutinize the applications for the post of CGM (LA) as well as CGM (A&HR). Both the committees found the Applicant as well as Shri V.K. Sharma (Respondent No.2) as eligible internal candidates for both the aforesaid posts. Thereafter, the first meeting of the Search-cum-Selection Committee for the selection of officers for various posts including the aforesaid two posts met on 06.11.2008 and decided to constitute a Screening Committee consisting of Member (Administration), Member (Finance) of NHAI and Joint Secretary (Public Private Partnership), MoSRT&H to shortlist the eligible applications for various posts for its consideration. Accordingly, the Screening Committee held its meeting on 09.02.2009 to shortlist the applications for the aforesaid post of Chief General Manager (Technical) and directed the office to compile the necessary information in respect of each of the candidates. As part of the selection process, the Chief Vigilance Officer, vide his letter No.13030/3/2009-Vig dated 04.06.2009, intimated the list of officers in respect of whom vigilance clearance for the aforesaid post has been sought for. In the case of the Applicant, the Chief Vigilance Officer furnished the following factual information:-
Shri Vishnu Darbari was charge-sheeted for imposition of minor penalty vide Charge Memorandum dated 28.07.2008 and he was imposed the penalty of withholding of two increments with cumulative effect vide order dated 17.12.2008. Later on, he preferred an appeal and the appellate authority has ordered for reducing the penalty withholding of one increment without cumulative effect vide order dated 03.06.2009.
In the case of the Private Respondent Shri V.K. Sharma, the Chief Vigilance Officer furnished the following information:-
A complaint from Honble MP was forwarded by Ministry against Shri V.K. Sharma, wherein allegations were leveled on the following issues:-
(i) Continuation of contract of M/s RKHS Hospitality services.
(ii) Taking over the post of GM (Admn.) without qualification.
(iii) Misuse of post of GM (Admn.) particularly for meetings of the variation Committee.
(iv) Misuse of Govt. vehicle by official of NHAI and GM (Admn.) has hefty cut in the payment release of vehicle contractors.
(v) Using the post of GM (Admn.) for creating the qualification for the post of CGM according to the promotional avenues.
(vi) Absorption of Shri Sharma in NHAI is suspicious.
(vii) Framed loop sided policy to intake the below standard officers.
(viii) Delay in LA process.
The complaint was examined and report was sent stating that none of the allegations leveled were substantiated against him. However, the Ministry is still examining the matter and have sought some further clarifications which are being looked into Thereafter, the GM (HR) vide his note dated 05.06.2009 submitted to the Chairman stated that the Applicant will remain under the currency of punishment till 03.06.2010 and, thereafter, if he is empanelled, will be eligible for promotion w.e.f. 01.07.2010. Thereafter, the Screening Committee met for the second time on 17.06.2009 and all the applications for 8 different posts of CGM including that of CGM(LA) and CGM (A&HR) were scrutinized and shortlisted and recommended the candidates for consideration by the Search-cum-Selection Committee.
4. In the statement indicating the details of application received for CGM (LA) in respect of Shri V.K. Sharma, the following facts were considered:-
(b) July 2000 to till date Responsible for land acquisition work for World Bank and ADB funded projects. Coordinated with DPR consultants, engaged ICs for preparing LA plans and Social Impact Assessment Reports, Competent Authorities Land Acquisition (CALA) for finalizing compensation amount. Appointment of Arbitrators, Streamlining procedures for LA notifications, policy guidelines for scrutinizing the proposals, processing cases for land acquisition, Note for COS, facilities to PIUs, etc. Preparation of Board Agendas on land acquisition, interaction with MoEF and State Forest Department for land transfer, organized workshop on land acquisition, R&R and environmental issues, preparation of micro plans for LA, engagement of NGOs for R&R activities, survey for verifying project affected people. Intensive monitoring of above functions, etc. 8 years 4 months.
In his case it was also indicated that Vigilance Clearance, NOC and ACRs were received and considered as eligible for promotion.
5. In the case of the Applicant, the following facts were considered:-
(i) Working as General Manager (RSC/PSQ/LA&EM/EM/LA&EM/OSD) in NHAI since 12.01.2001 in pay scale of Rs.14300-18300 (Sl.No.9 of details of experience seems to be wrong information as designation referred is DGM(P&IS) whereas the pay scale mentioned is Rs.14300-18300, therefore, this period not considered) 7 yr. 9 mth.
(ii) Appointed as Vigilance Officer in Cement Corporation of India in pre-revised IDA scale of Rs.700-1300 w.e.f. 01.10.1983 (More than 18 years experience in Gr. A).
(iii) Experience in land related matters 8 yr. 2 month.
(i) 9.8.2000 to 31.8.2006 Dealt with issuance of land acquisition notification proposal under various sections of NH Act, 1956 by coordinating with Legislative Department, Ministry of Law, Road Transport and Highways and Official Language Wing of Ministry of Law and Justice, Estate Management like inventorisation of fixed assets of NHAI, inventory of unused land, assets like office & residential complexes, dealt with functions related to entrustment of stretches and estate management issues, vetting of land acquisition notification proposals, appointment of arbitrators, compensation of claims, etc. 8 yr. 2 mth. It was also indicated that a penalty has been awarded to the officer and the currency of the punishment is valid till 30.06.2010. Further, they have mentioned that his NOC as well as ACRs were received. Again in his case it was mentioned that he was not eligible as the penalty has been awarded to the officer and the currency of penalty is valid till 30.06.2010. The relevant part of the said judgment is as under:-Sl.No. 9 10
A penalty has been awarded to the officer and the currency of punishment is valid till 30.06.2010 Not eligible, as a penalty has been awarded to the officer and the currency of punishment is valid till 30.06.2010 NOC Received ACRs received
6. In the statement indicating the details of the applications received for CGM (A&HR) also the following remarks were made in respect of the Applicant:-
(1) Internal candidate holding a post of General Manager (RSC/PSQ/LA&EM/EM/LA&EM/OSD) in NHAI since 12.1.2001 in pay scale of Rs.14300-18300 (Sl.No.9 of details of experience seems to be wrong information as designation referred is DGM (P&IS) whereas the pay scale mentioned is Rs.14300-18300, therefore, this period not considered) 7 yr. 9 mth. A penalty has been awarded to the officer and the currency of the punishment was valid till 30.06.2010. Not eligible, as a penalty has been awarded to the officer and the currency of punishment is valid till 30.06.2010
7. Finally, the Screening Committee vide its minutes dated 17.06.2009 recommended the names of Col. P.K. Chaturvedi (Retired) and Shri V.K. Sharma for the post of CGM (LA) and the names of Shri V.K. Sharma and Dr. A.K. Malhotra for CGM (A&HR) for the post of CGM (A&HR). Applicants name was not recommended for both the aforesaid posts. As a result, Search-cum-Selection Committee in its meeting held on 18.06.2009 did not consider the Applicant at all.
8. According to the Applicant the Screening Committee misled the Search-cum-Selection Committee by feeding wrong and negative information about him. He has also submitted that the Screening Committee did not examine his case according to the prescribed Recruitment Rules. As a result, the Screening Committee held him not eligible for consideration resulting in the denial of his right of consideration which is illegal and in blatant violation of the existing recruitment rules.
9. As far as the mis-information fed by the Screening Committee to the Search-cum-Selection Committee was concerned, Shri Nivesh Gupta, Sr. Counsel appearing on behalf of the Applicant has submitted that in spite of the unambiguous intimation furnished by the Chief Vigilance Officer vide his letter dated 04.06.2009 that the penalty of withholding of two years increments with cumulative effect imposed upon him by the Disciplinary Authority vide order dated 17.12.2008 has been reduced by the Appellate Authority to that of withholding of one increment without cumulative effect vide order dated 03.06.2009, the Screening Committee held him not eligible for the wrong reason that the currency of the aforesaid penalty was valid up to 30.06.2010 whereas it was valid under law only up to 16.12.2009. He has also submitted that the Screening Committee arbitrarily ignored the note of the GM (HR) dated 05.06.2009 to the Chairman that if the Applicant was empanelled, he will be eligible for promotion after the currency of the punishment is over. The argument of the learned Sr. Counsel for the Applicant that the remarks made by the 2nd Screening Committee that a penalty has been awarded to the officer and the currency of the punishment was valid till 30.06.2010 was absolutely contrary to the facts. He has further submitted that the Screening Committee was misled in this regard by the office of the NHAI. When the penalty of withholding two increments with cumulative effect imposed upon the Applicant by the Disciplinary Authority vide its order dated 17.12.2008 has been modified and reduced by the Appellate Authority as withholding of increment for one year without cumulative effect vide its order dated 30.06.2009, the currency of the punishment was to be over by 16.12.2009. According to the learned Sr. Counsel, it is for the same reason that Scrutiny Committee appointed by the Search-cum-Selection Committee met on 20.10.2008 found that the Applicant was eligible for the post of CGM (L&A) as per the advertised criteria. Similarly, the Scrutiny Committee met on 20.10.2008 found the Applicant eligible for the post of CGM (Admn.&HR). Thereafter, the Search-cum-Selection Committee met on 06.11.2008 and again constituted Screening Committee to short list the eligible Applicants. Accordingly, the first Screening Committee met on 09.02.2009 to short list the Applicants for the post of CGMs directed the administration to compile the requisite information in respect of each eligible candidates. The second Screening Committee met on 17.06.2009 and it was furnished with the requisite details. As regards the Applicant for the post of CGM (L&A), the information furnished to the Screening Committee was that the currency of the penalty awarded to the Applicant was valid till 30.06.2010 whereas the currency was to be over by 16.12.2009. The same misinformation was furnished to the Screening Committee with regard to the post of CGM (HR) also. As a result, the Screening Committee did not short list the Applicant for the consideration of Search-cum-Selection Committee for the aforesaid posts. In this regard the learned Sr. Counsel relied upon the judgment of the Apex Court in the case of Delhi Jal Board Vs. Mahinder Singh 2000 (7) SCC 210 wherein it has been held that right to be considered by a Selection Committee is a fundamental right.
10. As regard violation of Recruitment Rules are concerned, Shri Nidesh Gupta referred to Regulation 13 of National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996 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.
He argued that a perusal of the aforesaid Regulation would make it clear, that under the various minor penalties which has been prescribed, withholding of promotion and withholding of increment have been made two separate and independent minor penalties. Thus, Disciplinary Authority/Appellate Authority after having chosen to inflict the minor penalty of withholding of increment, the Respondents could not have inflicted another penalty of withholding of promotion by not considering him for promotion for the posts of CGM (LA) and CGM (A&HR) as the same amounts to double jeopardy which is not permissible in law.
11. According to the Applicant he was unaware of aforesaid illegalities committed by the Search-cum-Selection Committee based on those wrong information furnished to them and suppression of the relevant rules and regulations. He has submitted that he was under the bona fide belief that he was not found suitable by the Screening Committee and Search-cum-Selection Committee on merit. Therefore, there was no occasion for him to challenge the selection of the Private Respondents. However, in the month of August, 2012, he was informed by one of his colleagues Mr. Kushwant Singh, the then General Manager, RO, Gujarat and now CGM (Technical) and Regional Officer, UP that he had received information under the RTI Act, 2005 that the first Screening Committee constituted for the purpose shortlisting the names for the post of CGM (LA)/CGM(A&HR) found him eligible but it was the second Screening Committee which did not consider him eligible for the aforesaid post base don wrong information furnished to it. Till such time, he had no knowledge of the factum of the clearance of his name by the first Screening Committee and subsequent wrong consideration of his case by the 2nd Screening Committee and Search-cum-Selection Committee. However, immediately on coming to know about the aforesaid information, he applied for the copies of the relevant notings under the RTI Act, 2005 on 30.08.2012 and 04.09.2012. He has also made a representation to the Chairman, NHAI on 23.10.2012. He has, therefore, submitted that limitation will not apply in his case as the same starts running only from the date of knowledge in the absence of any official communication containing the reasons for his non-selection. In this regard, the learned counsel for the Applicant has also relied upon the order of a co-ordinate Bench of this Tribunal in OA No.3604/2010 and connected cases - Ajay Kumar Joshi Vs. U.O.I. and Others. The relevant parts of the said order are reproduced as under:-
Further, it was contended that the period of limitation would begin from the date of knowledge of the order challenged in the OA. The order dated 19.09.2008 had neither been published in newspapers nor notified in the Gazette of India. It was also not circulated to the officers of the cadre. Therefore, there was no question of the Applicant having any knowledge of the order dated 19.09.2008, especially because he was not in the Uttarakhand cadre till 12.10.2009. On being transferred to that cadre he vaguely came to know about the concurrence given by the Government of India, but the exact nature of the order and the terms in which it was given was not known to him. As already adverted to above, when the Applicant asked for a copy of the aforesaid order under the Right to Information Act, 2005, it was not given to him on the ground that the said order was not available in the record. It was only on 26.02. 2010 that the copy of the order was made available to the Applicant. The learned senior counsel would contend that the period of limitation would run from 26.02.2010 only. Reliance has also been placed on Seema Chaudhary V. Union of India, 2202 VI AD (Delhi) 982. The petitioner in the Writ Petition (cited supra) was claiming that she should be appointed to Group A of Indian Customs and Central Excise Service, whereas the respondents resisted the same by saying that having accepted service in Group B, she was estopped from claiming appointment to Group A. It was also urged by the respondents that the letter of appointment was issued on 08.02.1993, whereas the OA was filed on 19.02.1999. It was, therefore, barred by limitation. The petitioner had argued that she came to know about diversion of posts in June 1998 and, therefore, limitation would count only from the period of knowledge. The Tribunal rejected the OA on the grounds of limitation. The Honourable Delhi High Court held thus:
XXX XXX XXX 17. On consideration of the arguments of the learned counsel for the parties on the issues regarding limitation and jurisdiction, we are of the considered opinion that the challenge to the order dated 19.09.2008 is not barred by limitation and because the said order and the order dated 13.10.2010 have been passed by the Government of India, the Principal Bench at New Delhi has the jurisdiction to entertain this Original Application. A careful reading of the Section 21 read with Section 20 of the Administrative Tribunals Act, 1985 would show that the limitation of one year applies to final order such as is mentioned in Clause (a) of sub-section (2) of Section 20. This final order relates to the order made by the competent authority rejecting any statutory appeal or representation. In the instant case there is no statutory appeal or representation against orders such as passed by the Government of India, which have been impugned in the OAs before us. In view of this Section 21 ibid will not apply for limitation in this case. It would be governed by the residuary article 137 of the Limitation Act. Moreover, there is another angle to be considered, that is, the date of knowledge of the impugned order dated 19.09.2008. As has been argued, the impugned order is not such that it would be in common knowledge after it has been passed. It is not notified in the Gazette, not published in the newspapers and not circulated to the members of service. The attempts of the Applicant to procure the order did not succeed in the first instance, as he was informed that the said order was not available on the file. It was only by his persistent efforts that the impugned order was made available to him. In such view of the matter also, it would be unfair to bar challenge to the order dated 19.09.2008 on the ground of limitation. Looked at any way, it is clear that the OA is not barred by limitation as contended by the Respondents. There is no difficulty in holding that the Principal Bench at New Delhi has jurisdiction to entertain these OAs in view of the fact that part of the cause of action has arisen in Delhi inasmuch as the impugned orders have been passed by DOP&T, Government of India.
12. The Applicant has also produced copy of the Respondents notings on the file furnished to him under the Right to Information Act, 2005. According to the said notings, the Respondents have considered his representation dated 23.10.2012 and the following facts have been submitted to competent authority who considered them but rejected on the ground of delay. The relevant part of the said notings are as under:-
2. The representation of the officer has been examined and the following facts are submitted for kind perusal:-
(a) That the advertisement for the various posts of CGM were issued in August, 2008 with last date as 30.09.2008. The Screening Committee comprising of S/Shri S.C. Jindal, CGM (Tech.), B.P. Kukrety, CGM (Tech.) and L.P. Padhy, GM (Tech.) in its meeting held on 20.10.2008 (pg.153-161/c) recommended the candidature of Shri V.S. Darbari, GM (LA&EM) for the post of CGM (Admn. & HR) and the same Screening Committee in its meeting held on 20.10.2008 (pg.162-165/c) recommended the candidature of Shri V.S. Darbari, GM (LA&EM) for the post of CGM (LA). However, the Search-cum-Selection Committee chaired by Secretary (RT&H) in its meeting held on 06.11.2008 (page 151-152/c) decided to constitute a Screening Committee consisting of Member (Admn.), Member (Fin.) NHAI and JS (PPP), MoRT&H to shortlist the eligible applications for various posts after initial screening/scrutiny of applications by the NHAI, for consideration by the Search-cum-Selection Committee. Hence, the Search-cum-Selection Committee had considered the fact that initial screening/scrutiny of applications was carried out by NHAI. As the second Screening Committee was constituted by the Search-cum-Selection Committee, the allegations of mala fide/vested interest to somehow reject his candidature leveled by the officer do not find ground.
(b) That while the applications were screened by the 2nd Screening Committee (constituted by the Search-cum-Selection Committee dated 06.11.2008) on 17.06.2008, the officer was undergoing a penalty which was valid up to 30.06.2008. As such, the case of the officer is governed by the DOP&T OM No.22034/5/2004-Estt (D) dated 15.12.2004 (pg.188/c), which inter alia states as under:-
.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 (Search-cum-Selection 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. It has also been clarified in the ibid OM that that since the promotion is to take effect only from a date subsequent to the expiry of the currency of the penalty, the officer would be entitled to pay fixation in the promotional grade with effect from the date of actual promotion only.
(c ) As regard, the two cases cited by the officer where some senior officers have been appointed as CGMs in NHAI despite the fact the penalties were imposed upon them it is submitted that in case of Shri J.K. Patel, the penalty was awarded vide Office Order dated 20.10.2007, while the officer was selected as CGM (Tech.) in March 2010 and in case of Shri Dev Raj, only a Show Cause Notice dated 28.02.2011 has been served on the officer by his parent department, while the officer was selected as CGM (Tech.) in NHAI in July, 2008. Hence, the contention of the representing officer does not merit consideration.
3. In view of the foregoing facts, especially those in para 2(b) above, it is discernable that the 2nd Screening Committee (constituted by the Search-cum-Selection Committee vide minutes dated 11.06.2008) had erred in judgment by not recommending the candidature of Shri Vishnu Darbari, GM (LA&EM) for consideration of the Search-cum-Selection Committee, as a case of an officer who is undergoing penalty could not have been stopped due to his being under currency of penalty.
4. As such, his case is required to be regulated under DoP&T OM No.22013/1/97-Estt.(D) dated 13.04.1998 (page 189-190/c) related to Review DPC. The said OM stipulates that the proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC. Thus, it may be necessary to convene Review DPC to rectify certain unintentional mistakes e.g.
(a) Where eligible persons were omitted to be considered; or
(b) Where ineligible persons were considered by mistake; or (c ) Where the seniority of the persons is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or
(d) Where some procedural irregularity was committed by a DPC; or
(e) Where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer.
5. It is submitted that the Search-cum-Selection Committee omitted to consider the candidature of Shri Vishnu Darbari, GM (LA&EM) as his candidature was not recommended by the Screening Committee and the Screening Committee vide its minutes dated 17.06.2009 (pg.146-149/c) recommend the candidature of the following officers for the posts of CGM (LA) & CGM (A&HR) respectively:-
(a) CGM (LA):- (i) Col. P.K. Chatruvedi (Retd.), EPFO; and (ii) Shri V.K. Sharma, GM (Env.), NHAI.
(b) CGM (Admn. & HR):- (i) Shri V.K. Sharma, GM (Env.), NHAI; and (ii) Dr. A.K. Malhotra, Forest Department, Jharkhand.
6. Further, the Search-cum-Selection Committee in its meeting held on 18.06.2009 recommended the candidature of (i) Shri V.K. Sharma for the post of CGM (LA) on promotion basis; and (ii) Dr. A.K. Malhotra for the post of CGM (Admn. & HR) on deputation basis. However, Dr. Malhotra did not join NHAI.
7. In view of the above, if agreed, the candidature of Shri Vishnu Darbari, GM (LA&EW) may be considered by the Review DPC (Search-cum-Selection Committee) for the posts of CGM (LA) and CGM (Admn. & HR), along with regular candidates, as per procedure prescribed by te DoP&T. After approval of Chairman, Secretary (RT&H) will be requested for convening a meeting of the Search-cum-Selection Committee for undertaking review.
8. Submitted please.
Sd/-
(Nitin Gupta) Assistant Manager (Admn.) 23.11.2012.
GM (HR/Admn-I) Sd/-
06.12.2012 CGM (HR) While the case is comprehensive one, it may be analysed on preceding three pages, the crux of it all is at para 3 above and portions marked X and Y at paras 2(a) and 5 also. Submitted .
Sd/-
06.12.2012 Member (A) Have some representations been made in the past by Shri Darbari? What was the outcome of that? When Screening Committee does not recommend his case what was the view taken by the Screening Committee.
Sd/-
20.12.2012 Reference query of Member (A) on page 4/ante.
2. Till this representation dated 23.10.2012 (PUC), Shri Darbari had not submitted any representation.
3. In this instant case, the Screening Committee had erred by not recommending the candidature of Shri Darbari, resulting in omission to consider his candidature by the Search-cum-Selection Committee.
4. In view of the foregoing para 7 on page 4/n, may be consider for approval please.
Sd/-
(Nitin Gupta) AM (Admn.) 21.12.2012 GM (HR)-I Sd/-
21.12.2012 CGM (HR) Generally aggrieved officers filed their representations immediately after the results are out.
Sd/-
CGM (HR) 21.12.2012 Member (A) Please discuss along with GM(HR-I).
Sd/-
24.12.2012 CGM (HR) GM (HR) Discussed with M(A) along with CGM (HR).
X 2.The officer has represented now when he came to know the facts through RTI. Normally, the representations on such issues are received immediately or within a year.
3. Submitted please.
Sd/-
01.01.2013 CGM (HR) X above is based on para 3 of the official representation dated 23.10.2012.
Sd/-
01.01.2013 Shri Vishnu Darbari, GM (LA&EM) has filed a representation before Chairman against rejection of his candidature for the post of CGM (LA)/CGM (HR) by Screening Committee constituted for the selection that took place in 2009 for which advertisement was issued in September, 2008.
His contention is that during currency of minor penalty, his case should have been considered and result kept in envelope till the currency of penalty and not rejected.
As per notes prepage 4N and 5N, it has been suggested to convene a review Selection Committee meeting to meet the ends of justice.
Submitted for further orders.
Sd/-
(Rajeev Yadav) Member (A) 3.1.2013 Chairman It is too late in the day. The officers who have been selected will have a vested right which cannot be disturbed by a plea that he was not aware of the facts. Would you like to open the Pandora box? There may be many more procedural mistakes. Would you like to please take up all those cases.
Please discuss.
Sd/-
4.1.2013 M(A) Discussed. It is too late as brought out above.
Sd/-
7.1.2013 CGM (HR) Sd/-
7.1.2013 GM (HR) Sd/-
8.1.2013 AM(A)NG Ref. discussion with GM (HR)-I, a draft letter addressed to Shri Darbari is placed at F/a please.
Sd/-
9.1.2013 GM (HR)-I Draft letter is placed below for approval before issue please.
Sd/-
10.01.2013 CGM (HR).
13. However, the Respondents vide impugned Annexure A-2 order dated 11.01.2013 rejected his aforesaid representation dated 23.10.2012 and informed him that the same was considered by the competent authority but since it was submitted after a great lapse of time and the selection process attained finality several years ago, it cannot be considered.
14. The Applicant has, therefore, filed this Original Application on 05.03.2013 seeking an order to quash the aforesaid Office Order dated 11.01.2013, the minutes of the Screening Committee dated 17.06.2009 and those of the Search-cum-Selection Committee dated 18.06.2009. He has also challenged the selection of Respondent No.2 as CGM (L) and Respondent No.3 as CGM (HR & Admn). Further, he has sought a direction to the Respondents to hold a review DPC for the aforesaid post by striking down the additional charge given to Respondent No.4 who is CGM (Legal) on contract basis and CGM (HR & Admn).
15. The Respondent No.1-NHAI in their reply has submitted that its Recruitment Regulations did not provide for a post of CGM till the same were amended by the Notification dated 02.07.2008 providing for selection (no promotion) to CGM through Search-cum-Selection Committee set up by Ministry of Road Transport and Highways (MoRT&H for short). As per the amended Regulation, eligibility of internal candidates for consideration for selection to the post of CGM (Admn.& HR) as also CGM (LA) and was GM (Admn/HR/Environment/LA). The NHAI advertised the post of CGM (LA) and CGM (Admn & HR) on 30.09.2008. On 15.10.2008 a Screening Committee was set up by NHAI which met on 20.10.2008 short-listed candidates including the Applicant. In the said Committee one of the members was absent as he was on leave. The Search-cum-Selection Committee in this case was headed by Secretary, MoRT&H and it met on 06.11.2008 and constituted a new Screening Committee with higher level officers and Member (A), Member (F) and JS in MoRT&H. Soon thereafter the Applicant was imposed with a minor penalty of two annual increments with cumulative effect vide Memo dated 17.12.2008. The reconstituted Screening Committee met after 06.02.2009 sought information in respect of the individual candidates. Meanwhile, the Appellate Authority vide order dated 03.06.2009 reduced the penalty imposed upon without cumulative effect. The reconstituted Screening Committee met on 17.06.2009 and short-listed the candidates for the post of CGM (HR & Admn) and CGM (LA) which did not include the Applicant on currency of punishment. The Search-cum-Selection Committee thereafter met on 18.06.2009 and selected the Respondent No.3 for the post of CGM (HR & Admn) but he did not join. The post was, therefore, readvertised but the Chairman, NHAI cancelled the same pending further amendment/finalization of NHAI Recruitment Regulations. The Respondent-NHAI has also stated that the Applicant has made a belated representation dated 23.10.2012 to the Chairman, NHAI stating that he was eligible for consideration for the post of CGM (LA) and CGM (HR & Admn) and the Assistant Manager (Admn) vide Note dated 23.11.2012 proposed convening of review DPC which was concurred by the Screening Committee vide his note dated 03.01.2013. The Chairman, NHAI vide Note dated 04.01.2013 rejected his representation on the ground of delay. The Chairman further stated that the officers selected had a vested right and they cannot be disturbed as otherwise it will open a Pandoras box. The Applicant was informed about the aforesaid decision vide order dated 11.01.2013. The Respondent-NHAI has also submitted that the Recruitment Regulation has since been amended by Notification dated 21.08.2013 changing the eligibility conditions for CGM (LA) and CGM (Admn & HR), namely, from General Managers of the respective fields. Therefore, the advertisement dated 17.09.2013 issued for selection of the aforesaid post cannot be interfered with.
16. The learned counsel for the Respondent No.1 Shri Jose Chiramel has also submitted that this OA is grossly time barred. He has stated that the grounds urged by the Applicant in the MA for condonation of delay that he came to know about the aforesaid facts only in August, 2012 through Shri Kushwant Singh who was later on promoted as CGM (T) is not sustainable in law. According to him, the Applicant was all along fully aware about his non-selection and nothing would have prevented him from enquiring from Respondent No.1 reasons thereof or to apply under the Right to Information Act, 2005 in that regard.
17. On merits also, according to the learned counsel for the Respondents, Applicant is not eligible for consideration for Search-cum-Selection Committee on 18.06.2009 as he was undergoing punishment. Moreover, the post of CGM (LA) and CGM (Admn & HR) are not promotional post but it is a selection post by the Search-cum-Selection Committee constituted by MoRT&H as per the guidelines issued by the DOP&T dated 30.07.2007. The learned counsel has also submitted that the Applicant has no vested right to be considered by the Search-cum-Selection Committee. The Screening Committee in his wisdom considered him ineligible for the post of CGM (LA) and CGM (Admn & HR). The said position has undergone a drastic change after the amendment of the Regulations on 21.08.2013. Hence, he was not eligible for consideration for CGM (LA) and CGM (Admn & HR) which is again advertised on 17.09.2013.
18. The learned counsel has also submitted that it is well settled in a catena of judicial pronouncements that during the currency of punishment, the candidates have no vested right to be considered for promotion. On the other hand, the post of CGM (LA) and CGM (HR & Admn) is not a promotional post but it is a selection post. In this regard learned counsel has relied upon the judgment of the Apex Court in the case of Union of India etc. etc. Vs. K.V. Jankiraman etc. etc. 1991 (4) SCC 109 wherein it has been held as under:-
When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into. consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of "paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal. He has also relied upon the judgment of the Apex Court in the case of State of Tamil Nadu Vs. Thiru K.S. Murugesan 1995 (3) SCC 273 wherein it has been held as under:-
7. It would thus be clear that when promotion is under consideration, the previous record forms the basis and when the promotion is on merit and ability, the currency of punishment based on previous record stands as an impediment. Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken up. Otherwise, it would amount to retrospective promotion which is impermissible under the Rules and it would be a premium on misconduct. Under these circumstances, we are of the opinion that the doctrine of double jeopardy has no application and non-consideration is neither violative of Article 21 nor Article 14 read with Article 16 of the Constitution.
Again, he has relied upon the judgment of the Apex Court in Collector of Thanjanvur District and Others Vs. S. Rajagopal and Others 2000 SCC (L&S) 876 wherein it has been held as under:-
We are of the view that the Tribunal was in error in thinking that if the minor punishments inflicted on the respondents were taken into consideration at the time of considering their merit for the purpose of inclusion in the list of Deputy Tehsildars, that would amount to double jeopardy.
Another judgment he has relied upon is of the Supreme Court in the case of the Union of India Vs. A.N. Mohanan Civil Appeal No.2020 of 2007 wherein it has been held as under:-
Awarding of censure, therefore, is a blameworthy factor. A bare reading of Rule 3.1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course.
Again he has relied upon the judgment of the Madras High Court in the case of Dy. Inspector General of Police Vs. V. Rani 2011 (4) MLJ 17 wherein it has been held as under:-
During the period of currency of minor punishment, an employee cannot claim as a matter of right to be promoted to the next category. Needless to state that after the currency of punishment period, the Government servant is entitled to be considered for promotion to the next post, if otherwise eligible.
19. The Respondent No.2 has filed a separate counter through his counsel Shri A.K. Behera. He has also pointed out that the Applicant himself has admitted that between 18.06.2009 (when the selection was finalized till 30.08.2012 he had not made any representation against the finalization of the selection. Thus the first representation made by him in this regard itself was delayed by approximately 3 years and 3 months. Such belated representation itself is not maintainable in the eyes of law in view of the nature of the subject matter. Therefore, such belated representation and any order pursuance thereto do not give any cause of action to file the present application belatedly. He has also pointed out that the Applicant has filed the present OA after nearly 4 years and it is a settled law of land that in the matters of appointment and promotion, settled cases should not be allowed to be unsettled. Therefore, this OA is clearly barred by Section 21 of the Administrative Tribunals Act, 1985 as well as general law of unsettling the matters. Accordingly, this OA is liable to be dismissed.
20. The learned counsel Shri Behera has also submitted that the impugned selection was admittedly held by Search-cum-Selection Committee appointed by the Ministry of Road Transport and Highways and not by NHAI. However, Applicant has not impleaded the said Ministry as a Respondent in this OA. Therefore, this OA is also liable to be dismissed for non-joinder of necessary parties.
21. On merits, the learned counsel for the Respondent has submitted that the allegation of favoritism made by the Applicant in the OA is false, frivolous and, therefore, denied. He has also denied that the answering respondent is a master manipulator. Further, he has also submitted that the Applicant has no case against the answering respondent.
22. We have heard the learned counsel for the Applicant Shri Shri Nidesh Gupta, Sr. Counsel with Shri Tarun Gupta and Shri M.K. Ghosh, learned counsel for Respondent No.1 Shri Jose Chiramel and learned counsel for Respondent No.2 Shri A.K. Behera. Admittedly, the Applicant is challenging the minutes of meeting/proceedings of the Screening Committee dated 17.6.2009 and that of the Search-cum-Selection Committee held on 18.06.2009 concerning the selections for the post of CGM(LA) and CGM(HR&Admn.) The Respondents have rejected his representation made against them made on 23.10.2012 vide their impugned letter dated 11.01.2013 on the ground of delay alone. In our considered view, they should not have done so. Admittedly, the Search-cum-Selection Committee did not consider the Applicant in its meeting held on 18.06.2009. On the other hand, the Private Respondents were considered and they were appointed. When a candidate is not selected by such a High Powered Committee, the presumption of any candidate would be, and rightly so, that he was not found eligible/suitable for valid reasons. The Respondent-NHAI has also not communicated the reasons as to why he was not found eligible/suitable. Had the Applicant been known that he was held ineligible for wrong reasons, he would have immediately made his representation. Therefore, there is no reason to disbelieve his submission that he came to know that he had been found eligible by the first Screening Committee met prior to the meeting of the first Search-cum-Selection Committee on 06.11.2008, only in August, 2012 from his colleague who got the information under Right to Information Act, 2005. Therefore, limitation will start only from the date the Applicant got the information, particularly when there was no occasion for the Applicant to make any representation under Section 21 read with Section 20 of the Administrative Tribunals Act, 1985. Therefore, the impugned order dated 11.01.2013 rejecting the representation of the Applicant made after he came to know about the true facts of his case, on the ground of limitation is quite unfair and, therefore, it is quashed and set aside.
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.
(P.K. BASU) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh