Central Administrative Tribunal - Delhi
Sh. P. Sivasankar vs Union Of India Through on 22 August, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2795/2014 MA No.2406/2014 Friday, this the 22nd Day of August, 2014 Honble Mr. G George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) In the matter of:
1. Sh. P. Sivasankar Aged about 47 years S/o Sh. P. Sastry R/o 348/A, D Block Shyam Nagar, Kanpur (Working as Manager(Tech.) at PIU, Lucknow)
2. Sh. Pradeep Singh Gusain Aged about 37 years S/o Sh. Surender Singh R/o G-24/3, Nehru Colony, Dehradun (Working as Manager(Tech.) at PIU, Dehradun)
3. Sh. Sanjeev Sharma Aged about 49 years S/o Sh. V.D. Sharma R/o D-610, New Arohi Apartments Plot No.12, Sector-13, Dwarka NewDelhi.
(Working as Manager(Tech.) at NHAI, Headquarter New Delhi)
4. Sh. Manoj Kumar Bansal Aged about 44 years S/o Sh. Chhitariya Lal Bansal R/o 1123, Barkat Nagar Jaipur (Rajasthan) (Working as Manager(Tech.) at RO, Jaipur)
5. Sh. Dinesh Kumar Chaturvedi Aged about 47 years S/o Sh. B.P. Chaturvedi R/o 98-C,Pocket-F,G.T.B. Enclave Delhi-110093.
(Working as Manager(Tech.) at PIU, Ghaziabad)
6. Sh. Sanjeev Kumar Sharma Aged about 47 years S/o Sh. Hari Dutta Sharma R/o 173-A, Shree Vihar, JLN Marg Jaipur, Rajasthan (Working as Manager(Tech.) at PIU, Dausa, Jaipur)
7. Sh. Mukunda T. Attarde Aged about 48 years S/o Sh. TikaramAwdit Attarde R/o Income Tax Colony, CBD, Belapur Navi Mumbai (Working as Manager(Tech.) at PIU, Jaipur)
8. Sh. Anil Kumar Khandelwal Aged about 48 years S/o Sh. Banwari Lal Khandelwal R/o 28, Marudhar Nagar, DCM Ajmer Road, Jaipur (Working as Manager(Tech.) at PIU, Jaipur)
9. Sh. Ajay Mani Kumar Aged about 47 years S/o Sh. Narsimha K O/o NHAI, PIU, Plot No.65 Kothari Layout, Venktesh Nagar Gulbarga, Karnataka (Working as Manager(Tech.) at PIU, Gulbarga, Karnataka)
10. Sh. Purshottam Lal Aged about 45 years S/o Sh. Ramdas Chaudhary R/o D-103, Plot No.26 Sector-6, Dwarka, New Delhi (Working as Manager(Tech.) at NHAI Headquarter, New Delhi)
11. Sh. A. Srinivasa Rao Aged about 47 years S/o Sh. A. Nageshwar Rao R/o 2-50-18/7, MVP Colony Vishakhapattnam, A.P. (Working as Manager(Tech.) at PIU, Vishakhapattnam)
12. Sh. D.K. Hansaria Aged about 50 years S/o Sh. Brijlal Hansaria R/o PO Pathsala, Distt. Barpeta, Assam (Working as Manager(Tech.) at PIU, Kolkata)
13. Sh. B.S. Salunke Aged about 46 years S/o Sh. Shankar A. Salunke R/o Flat No.204, Gruhalazmi Co-op Housing Society, Wasan Nagar, Pathardi Phata Nashik-422009 (Working as Manager(Tech.) at PIU, Nashik)
14. Mohd. Safi Aged about 48 years S/o Ikram Ghani R/o 4/16, Darul CMS Compund, Doshpur Aligarh(UP) (Working as Manager(Tech.) at PIU, Moradabad)
15. Sh. P. Nageshwar Rao Aged about 46 years S/o Sh. P. Chaudhary R/o PIU, Berhampur, Orissa (Working as Manager(Tech.) at Berhampur, Orissa)
16. Sh. R. Venketeswarulu Aged about 44 years S/o Sh. R. Subhash Chand Bose R/o Barhampur, Orissa (Working as Manager(Tech.) at PIU, Bhuvneshwar)
17. Sh. Amarendra Narayan Singh Aged about 51 years S/o Dr. Virendera Nr. Singh R/o Alalpatti, VIP Road, Darbhanga (Working as Manager(Tech.) at PIU, Darbhanga)
18. Sh. Abhijit Jichkar Aged about 42 years S/o Sh. Pralhadrao R/o Gurudeo Nagar Nagpur, Maharashtra (Working as Manager(Tech.)
19. Sh. Ramesh Chandra Jain Aged about 49 years S/o Late Sh. Neelkamal Jain R/o Bhuvneshwar (Working as Manager(Tech.) at Bhuvneshwar)
20. Sh. Sunil Vasantrao Patil Aged about 45 years S/o Sh. Vasantrao Chandru Patil R/o B-23/N4/CID 10 Aurangabad (Working as Manager(Tech.) at PIU, Aurangabad)
21. Sh. Yashwant Ghotkar Aged about 47years S/o Sh. Nanarao Ghotkar R/o E-80, N-4, GDCO, Aurangabad (Working as Manager(Tech.) at PIU,Aurangabad)
22. Sh. Pradeep Mudgal Aged about 51 years S/o Late Sh. Gopal Ram Sharma R/o 21/243, Kaveri Path, Mansarovar, Jaipur (Working as Manager(Tech.) at RO, Jaipur)
23. Sh. C.M. Dwivedi Aged about S/o Sh. P.N. Dwivedi R/o C-120/B-1, Sector-A Mahanagar, Lucknow (Working as Manager(Tech.) at PIU, Raibaraily) Applicants (By Advocates:Ms. Jyoti Singh, Sr.Advocate, Shri S.K. Gupta, Shri Amandeep Joshi and Shri Sameer Sharma) Vs.
1. Union of India through Secretary Ministry of Road, Transport and Highways 1, Parliament Street, Transport Bhawan New Delhi.
2. National Highways Authority of India Through its Chairman G-5 & 6, Sector 10, Dwarka New Delhi 110075. Respondents (By Advocate: Shri Jos Chiramel) Order (Oral) Shri G. George Paracken:
MA No.2406/2014This MA has been filed under section 4(5) of CAT (Procedure) Rules, 1987 for joining together. For the reasons stated therein, it is allowed.OA No.2795/2014
2. The applicants have filed this Original Application seeking the following reliefs and interim relief:-
(a) Quash the advertisement dated 15/21.03.2014 by which, the respondents have intended to fill up the post of Dy. General Manager (Tech) by way of direct recruitment/deputation being contrary to Regulation 13(4) of amended Regulation, 2009;
(b) Quash and set aside the circular dated 17.04.2014.
(c) direct the respondent no.2 to consider the case of the applicants for promotion to the post of DGM (Tech) by holding the DPC in terms of Govt. of Indias instructions/circulars being the first mode of selection in terms of Regulation 13(4) of Amended Regulation, 2009 and promote the applicants on the post of DGM (Tech) based upon the recommendations of DPC with all consequential benefits within the stipulated time period as fixed by this Honble tribunal and thereupon, respondent no.2 be directed to resort the other mode of recruitment namely deputation/direct recruitment;
(d) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.
Interim order:-
Pending final disposal of the OA, the respondent No.2 may kindly be directed to held in abeyance the advertisement dated 15/21.03.2014 to which, the written test for the post of DGM (Tech.) has been scheduled on 23.08.2014.
3. By the Annexure A-1 advertisement dated 15/21.03.2014 referred to in the aforesaid relief clause, the Respondent-National Highways Authority of India (NHAI for short) has invited applications from officers under the State/Central Government Department/Autonomous Bodies/Public Sector Undertakings for appointment to different posts including that of Deputy General Manager (Tech.) by the method of deputation/by direct recruitment.
4. The applicants are presently working as Managers (Technical) which is the feeder post for the post of Deputy General Manager (Technical). They have challenged the aforesaid advertisement on the ground that it is violative of Regulation 13(3) and (4) of the National Highways Authority of India (Recruitment, seniority and promotion) third Amendment Regulations, 2009. The said rules are extracted below:-
(3) Appointment by absorption, direct recruitment and direct recruitment through lateral entry, including existing cadre of NHAI officers/employees, does not exceed 50% of the sanctioned posts at the level of General Manager and below at any point of time and the absorption, direct recruitment and direct recruitment through lateral entry shall be undertaken in a phased manner enhancing the recruitment from25%to 50% in the coming recruitment years.
(4) The process of recruitment for increasing the permanent cadre strength shall be in the order of promotion, absorption and lateral entry i.e. if eligible candidates are not available for promotion, absorption will the undertaken and once the eligible candidates for absorption are exhausted, lateral entry shall be undertaken. While increasing the permanent cadre strength, the feeder cadres may be enhanced first and higher cadres subsequently, so that career progression opportunities are not blocked for the lower cadres.
5. The submission of the learned senior counsel for the applicant, Ms. Jyoti Singh which is not disputed by the respondents is that the sanctioned strength of the Deputy General Manager(Tech.) as on date is 193 and according to the aforesaid sub-rule (3) above, appointment by the method of absorption, direct recruitment and direct recruitment through lateral entry, including existing cadre of NHAI officers/employees, shall not exceed 50% of the sanctioned posts of General Manager (Technical) at any point of time. Her other submission which is also not refuted by the respondents is that the present working strength of Deputy Managers (Technical) is 94 and out of them only 10 posts are made permanent and the remaining 84 posts are managed by deputationists. Thus the total working strength by way of absorption, direct recruitment and direct recruitment by lateral entry at present shall not be more than 97. The rest of the 50% shall be filled up through promotion from the eligible persons in the feeder post and through deputation. She has also submitted the Respondents should have strictly adhered to the order of priority prescribed by the clause 4 of Regulation 13 for recruitment of Deputy Manager (Technical). According to the said clause, the process of recruitment shall be first by promotion of the eligible candidates from the feeder cadre and then by absorption of the existing eligible deputationists and then by lateral entry i.e. the eligible candidates from feeder post shall be considered for promotion first and only thereafter the methods of recruitment by way of absorption of the existing deputationists and appointment by lateral entry shall be resorted to. Therefore, the impugned advertisement is against the aforesaid rules and regulations of the respondents.
6. Learned counsel for the respondents, Shri Jos Chiramel has however, submitted that at present only 10 regular posts of Deputy Manager (Technical) have been filled but the ceiling is 50%. However, as per the advertisement only 50% of the posts are to be filled by way of direct recruitment/deputation and even if all those posts are filled up then also, the total number of posts comes below 50%. He has further submitted that the process of promotion as provided in clause 13(4) will only be applicable if the ceiling of 50% under clause 3 is exceeded.
7. We have considered the submissions made by the learned counsel for the parties. The entire Regulation No.13 deals with absorption. The NHAI being a comparatively new organization, most of the employees have been initially appointed on deputation basis. Therefore, its endeavor is to form their own permanent cadre strength in due course. Therefore, in terms of clause 1 of regulation 13, provision for absorption has been given. According to the said clause, officers who fulfill the prescribed eligibility criteria for the post at the time of deputation are considered for permanent absorption. However, according to sub-clause 2 of the said Regulation, absorption of deputationists has been limited to the level of General Manager. Again, clause 3 of the said regulation, as extracted above, says that appointment by absorption, direct recruitment and direct recruitment through lateral entry, including existing cadre of NHAI officer/employees, does not exceed 50% of the sanctioned posts at the legal of General Manager and below at any point of time and the absorption, direct recruitment and direct recruitment through lateral entry shall be undertaken in a phased manner enhancing the recruitment from 25% to 50% in the coming recruitment years. According to clause 4 of the regulation 13, in order to achieve that end, the process of recruitment has been prescribed in the order of promotion followed by absorption and then by lateral entry as stated above.
8. In the above facts and circumstances of the case, we are convinced that without resorting to the first method of recruitment, namely, promotion, the respondents could not have issued the advertisement for appointing persons on deputation basis/direct recruitment basis. Therefore, the impugned advertisement is against the aforesaid Regulation of the respondent. Consequently, the said advertisement is liable to be quashed and set aside. However, we have considered the submission of the learned counsel for the Respondent that in terms of the aforesaid advertisement, the written examination is scheduled to be held on 23.08.2014 and any order quashing the impugned advertisement at this stage will cause great hardships to large number of candidates who have already prepared to appear in the said examination.
9. In the above facts and circumstances of the case, with the consent of the learned counsel for appearing for both parties, we dispose of this OA with the direction to the respondents to ensure that the appointment through the method of promotion of the existing eligible officers shall be undertaken as expeditiously as possible but in any case prior to the pronouncement of the results of the selection based on the impugned advertisement. We further direct the Respondent that the result of the examination being conducted, pursuant to the impugned order shall not be published before the process of promotion is completed and the applicants are informed of the position. With the aforesaid directions this OA is disposed of.
10. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken )
Member(A) Member (J)
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