Central Administrative Tribunal - Delhi
Shri Sanjay Channa vs Union Of India Through on 28 April, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.901/2013
with
OA No.902/2013
OA No.909/2013
OA No.1054/2013
OA No.3821/2012
OA No.3949/2012
OA No.3995/2012
OA No.3996/2012
OA No.4004/2012
OA No.4007/2012
OA No.4407/2012
OA No.1228/2013
OA No.1229/2013
Reserved on:19.02.2014
Pronounced on:28.04.2014
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
OA No.901/2013
Shri Sanjay Channa
Age 49 years,
S/o Late Shri K.B. Channa
R/o A-08, Madhur Mangal Apartment,
Mahatma Nagar,
Nasik, Maharashatra
(Presently working as Manager (Tech.)) ..Applicant
By Advocate: Shri S.K. Gupta.
Versus
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 P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
OA No.902/2013
Shri Manoj Kumar Sharma
S/o Shri Purshottam Dass Sharma
Working as Manager (Tech.)
Under NHAI, PIU (Gwalior),
Madhya Pradesh.
R/o A-08, Madhur Mangal Apartment,
Mahatma Nagar ..Applicant
By Advocate: Shri Rajinder Khatter.
Versus
Union of India : Through
1. The Secretary,
Ministry of Road, Transport and
Highways,
1, Parliament Street,
Transport Bhawan,
New Delhi.
2. The National Highways Authority of India,
Through its Chairman,
G-5 & 6, Sector-10, Dwarka,
New Delhi-110075. ..Respondents
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
OA No.909/2013
Shri Pradeep Kumar Srivastava
Age 50 years,
S/o Shri Sri Ishwar Saran Srivastava
R/o B-15, Ram Nager Colony,
Mohaddipur, Gorakhpur, UP-237008
Presently working as Manager (Tech.)
PIU, NHAI, Gorakahpur (UP) ..Applicant
By Advocate: Shri S.K. Gupta.
Versus
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.
3. U.P. State Bridge Corporation Ltd.
Through its Managing Director,
Setu Bhawan,
16-Madan Mohan Malviya Marg,
Lucknow-226 001 (UP) ..Respondents
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
Shri Saba Rahman and Shri Vivek
Singh Counsel for Respondent No.3.
OA No.1054/2013
Shri Keshav Vitthalrao Ghodke
Age 44 years
S/o Shri Vitthalrao J. Ghodke
R/o 301, Abhiyanta Co-operative
Housing Society, Plot No.64A,
Sector-21,
Kharghar, Navi Mumbai. ..Applicant
By Advocate: Shri S.K. Gupta.
Versus
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 P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
OA No.3821/2012
Shri B. Ravi Shankar
Age 54 years
S/o Shri B. Chandra Shekar
R/o H.No.2195, 11th Main A-Block,
Sulrammaya Nagar, Rajaj Nagar,
Housing Society, Plot No.64A,
Bangalore-10. ..Applicant
By Advocate: Shri S.K. Gupta.
Versus
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 P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
OA-3949/2012
Shri G. Siva Rama Raju
Aged 56 years
S/o Shri G. Kodanda Raju
R/o MIG 459, K.P.H. Colony,
Road No.2,
Hyderabad-500082. ..Applicant
By Advocate: Shri S.K. Gupta.
Versus
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.
3. Shri Ram Prit Paswan
Working as Manager (Tech.),
National Highways Authority of India,
Raipur.
4. Shri Purshottam Lal Choudhary
Manager (Tech.),
National Highways Authority of India,
Kanpur.
5. Shri Sanjeev Kumar Sharma
Manager (Tech.),
National Highways Authority of India,
Malda.
6. Shri J. Balachander
Manager (Tech.),
National Highways Authority of India,
Chhindwara.
7. Shri Karge Kamki
Manager (Tech.),
National Highways Authority of India,
Bongaigaon.
8. Shri V. Vardarajan
Manager (Tech.),
National Highways Authority of India,
Trichy.
9. Shri Abhijeet P. Jichkar
Manager (Tech.),
National Highways Authority of India,
Nagpur.
10. Shri Alok Kumar
Manager (Tech.),
National Highways Authority of India,
Nagaon.
11. Shri Kulbir Singh Thakur
Manager (Tech.),
National Highways Authority of India,
Chandigarh.
12. Smt. Pratima Gupta
Manager (Tech.),
National Highways Authority of India,
Kota.
13. Shri Subrata Nag
Manager (Tech.),
National Highways Authority
of India,
Kolkata.
14. Shri Prabhat Kumar Singh
Manager (Tech.),
National Highways Authority of India,
Thane.
15. Shri Anil Kumar Mishra
Manager (Tech.),
National Highways Authority of India,
Muzaffarpur.
16. Shri Amrender Narain Singh
Manager (Tech.),
National Highways Authority of India,
Darbanga.
17. Shri Dinesh Kumar Chaturvedi
Manager (Tech.),
National Highways Authority of India,
Ghaziabad.
18. Shri Chandra Kant Mohan
Manager (Tech.),
National Highways Authority of India,
Dhule. .Respondents
(Service of private respondents No.3 to 18 to be effected through respondent No.2 [Chairman, NHAI, G-5 & 6, Sector-10, Dwarka, New Delhi-110075]).
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
Shri Manish Kaushik proxy for Shri
Sameer Nandwani Counsel for
Respondents No.5,7,9,16, 17
OA No.3945/2012
Shri Manoj Kumar Garg
S/o Late Shri Om Prakash Garg
Age 52 years
Working as Manager (Tech.)
Under National Highways Authority
Of India,
G-5 & 6, Sector-10,
Dwarka,
New Delhi-110075. ..Applicant
By Advocate: Shri Rajinder Khatter.
Versus
Union of India : Through
1. The Secretary,
Ministry of Road, Transport and
Highways,
1, Parliament Street,
Transport Bhawan,
New Delhi.
2. The National Highways Authority of India,
Through its Chairman,
G-5 & 6, Sector-10, Dwarka,
New Delhi-110075. ..Respondents
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
OA No.3996/2012
Shri Sunil Agarwal
S/o Shri Jagdish Rai
Age 52 years
Working as Manager (Tech.)
Under National Highways Authority
Of India,
G-5 & 6, Sector-10,
Dwarka,
New Delhi-110075. ..Applicant
By Advocate: Shri Rajinder Khatter.
Versus
Union of India : Through
1. The Secretary,
Ministry of Road, Transport and
Highways,
1, Parliament Street,
Transport Bhawan,
New Delhi.
2. The National Highways Authority of India,
Through its Chairman,
G-5 & 6, Sector-10, Dwarka,
New Delhi-110075. ..Respondents
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
OA No.4004/2012
Shri Vinod Kumar Gupta
S/o Shri Parbhati Lal Gupta
Age 52 years
Working as Manager (Tech.)
Under National Highways Authority
Of India,
G-5 & 6, Sector-10,
Dwarka,
New Delhi-110075. ..Applicant
By Advocate: Shri Rajinder Khatter.
Versus
Union of India : Through
1. The Secretary,
Ministry of Road, Transport and
Highways,
1, Parliament Street,
Transport Bhawan,
New Delhi.
2. The National Highways Authority of India,
Through its Chairman,
G-5 & 6, Sector-10, Dwarka,
New Delhi-110075. ..Respondents
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
OA No.4007/2012
Shri Ram Chandra Tejwani
S/o Late Shri Tek Chand Tejwani
Working as Manager (Tech.)
Under National Highways Authority
Of India,
G-5 & 6, Sector-10,
Dwarka,
New Delhi-110075. ..Applicant
By Advocate: Shri Rajinder Khatter.
Versus
Union of India : Through
1. The Secretary,
Ministry of Road, Transport and
Highways,
1, Parliament Street,
Transport Bhawan,
New Delhi.
2. The National Highways Authority of India,
Through its Chairman,
G-5 & 6, Sector-10, Dwarka,
New Delhi-110075. ..Respondents
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
OA No.4407/2012
Shri Bhupendra Singh Chauhan
S/o Shri Raghunath Singh Chauhan
Working as Manager (Tech.)
Under NHAI, PIU,
Ambala (Haryana). ..Applicant
By Advocate: Shri Rajinder Khatter.
Versus
Union of India : Through
1. The Secretary,
Ministry of Road, Transport and
Highways,
1, Parliament Street,
Transport Bhawan,
New Delhi.
2. The National Highways Authority of India,
Through its Chairman,
G-5 & 6, Sector-10, Dwarka,
New Delhi-110075. ..Respondents
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
OA-1228/2013
Shri Vikram Singh Rawat
Age 36 years
S/o Late Shri Jai Singh
R/o H-9/12, Metropolis,
Rudrapur,
Udhamsingh Nagar,
Uttrakahand. ..Applicant
By Advocate: Shri S.K. Gupta.
Versus
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.
3. Shri Ram Prit Paswan
Working as Manager (Tech.),
National Highways Authority of India,
Raipur.
4. Shri Purshottam Lal Choudhary
Manager (Tech.),
National Highways Authority of India,
Kanpur.
5. Shri Sanjeev Kumar Sharma
Manager (Tech.),
National Highways Authority of India,
Malda.
6. Shri J. Balachander
Manager (Tech.),
National Highways Authority of India,
Chhindwara.
7. Shri Karge Kamki
Manager (Tech.),
National Highways Authority of India,
Bongaigaon.
8. Shri V. Vardarajan
Manager (Tech.),
National Highways Authority of India,
Trichy.
9. Shri Abhijeet P. Jichkar
Manager (Tech.),
National Highways Authority
of India,
Nagpur.
10. Shri Alok Kumar
Manager (Tech.),
National Highways Authority of India,
Nagaon.
11. Shri Kulbir Singh Thakur
Manager (Tech.),
National Highways Authority of India,
Chandigarh.
12. Smt. Pratima Gupta
Manager (Tech.),
National Highways Authority of India,
Kota.
13. Shri Subrata Nag
Manager (Tech.),
National Highways Authority of India,
Kolkata.
14. Shri Prabhat Kumar Singh
Manager (Tech.),
National Highways Authority of India,
Thane.
15. Shri Anil Kumar Mishra
Manager (Tech.),
National Highways Authority of India,
Muzaffarpur.
16. Shri Amrender Narain Singh
Manager (Tech.),
National Highways Authority of India,
Darbanga.
17. Shri Dinesh Kumar Chaturvedi
Manager (Tech.),
National Highways Authority of India,
Ghaziabad.
18. Shri Chandra Kant Mohan
Manager (Tech.),
National Highways Authority of India,
Dhule. .Respondents
(Service of private respondents No.3 to 18 to be effected through respondent No.2 [Chairman, NHAI, G-5 & 6, Sector-10, Dwarka, New Delhi-110075]).
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
Shri Manish Kaushik proxy for Shri
Sameer Nandwani Counsel for
Respondents No.5,7,9,16, 17
OA-1229/2013
Shri A. Chandrasekahar
Aged 47 years
S/o Shri A. Anjaneyulu
136, Kailash Residency,
Mahakali Vidyapeth Road,
Near New Gallamandi,
Jhansi ,
Uttar Pradesh-284001. ..Applicant
By Advocate: Shri S.K. Gupta.
Versus
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.
3. Shri Ram Prit Paswan
Working as Manager (Tech.),
National Highways Authority of India,
Raipur.
4. Shri Purshottam Lal Choudhary
Manager (Tech.),
National Highways Authority of India,
Kanpur.
5. Shri Sanjeev Kumar Sharma
Manager (Tech.),
National Highways Authority of India,
Malda.
6. Shri J. Balachander
Manager (Tech.),
National Highways Authority of India,
Chhindwara.
7. Shri Karge Kamki
Manager (Tech.),
National Highways Authority of India,
Bongaigaon.
8. Shri V. Vardarajan
Manager (Tech.),
National Highways Authority of India,
Trichy.
9. Shri Abhijeet P. Jichkar
Manager (Tech.),
National Highways Authority of India,
Nagpur.
10. Shri Alok Kumar
Manager (Tech.),
National Highways Authority of India,
Nagaon.
11. Shri Kulbir Singh Thakur
Manager (Tech.),
National Highways Authority of India,
Chandigarh.
12. Smt. Pratima Gupta
Manager (Tech.),
National Highways Authority of India,
Kota.
13. Shri Subrata Nag
Manager (Tech.),
National Highways Authority of India,
Kolkata.
14. Shri Prabhat Kumar Singh
Manager (Tech.),
National Highways Authority of India,
Thane.
15. Shri Anil Kumar Mishra
Manager (Tech.),
National Highways Authority of India,
Muzaffarpur.
16. Shri Amrender Narain Singh
Manager (Tech.),
National Highways Authority of India,
Darbanga.
17. Shri Dinesh Kumar Chaturvedi
Manager (Tech.),
National Highways Authority of India,
Ghaziabad.
18. Shri Chandra Kant Mohan
Manager (Tech.),
National Highways Authority of India,
Dhule. .Respondents
(Service of private respondents No.3 to 18 to be effected through respondent No.2 [Chairman, NHAI, G-5 & 6, Sector-10, Dwarka, New Delhi-110075]).
By Advocate: Shri P.P. Khurana, Sr. Counsel with Ms.
Tanu Priya Gupta for Respondents No.1
2.
Shri Manish Kaushik proxy for Shri
Sameer Nandwani Counsel for
Respondents No.5,7,9,16, 17
ORDER
Honble Mr. G. George Paracken, Member (J) The issue involved in all these Original Applications are the same and, therefore, they are disposed of by this common order. OA No. 3949/2012 being the lead case, the brief facts thereof are considered hereunder:-
2. The Respondent No.2, namely, National Highway Authority of India (NHAI for short) issued an advertisement in March, 2004 inviting applications for appointment to the post of Manager (Technical) on deputation basis. Such appointments are governed by Rule 13 of the National Highways Authority of India(Recruitment, Seniority and Promotion) Regulations, 1996. The Applicant was selected and then appointed vide order dated 13.7.2004. He joined the said post on 26.8.2004. While he and other similarly placed officers were working on the said post, the Respondents invited applications for appointment to that post through lateral entry. They challenged the aforesaid action of the Respondents vide OA No.2807/2009 and connected cases. This Tribunal, vide order dated 09.10.2009 directed the Respondents to maintain status quo. During the pendency of the said OAs, the Respondent No.2, amended the aforesaid Regulations, 1996 vide National Highways Authority of India (Recruitment, Seniority and Promotion) Third Amendment Regulations, 2009 and notified it on 23.10.2009. By the said amendment, the deputationists with two years of continuous service were allowed to be absorbed at the level of General Manager and below. But, vide clause 13(5)(g), it was incorporated that the officers should be less than 56 years of age as on Ist day of January of the year in which, they are considered for absorption. Rule 13 of the said amended Regulations deals with absorption and it is reproduced as under:-
13. Absorption: (1) Only those officers/employees shall be considered for permanent absorption who fulfill the prescribed qualifications and eligibility criteria for the post at the time of appointment on deputation.
(2) The officers serving on deputation may be considered for absorption at the level of the General Manager and 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 the 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.
(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 be 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 criteria for absorption shall be as follows:
(a) Need for retention of the officer in the Authority.
(b) At least two years continuous service on deputation basis in the Authority for the posts at the level of General Manager and below.
(c ) Willingness of the officer.
(d) Consent of the cadre controlling authority in parent department.
(e) Observance of statutory reservations as prescribed in the roster points.
(f) Performance and achievements of the officer during his tenure in the Authority.
(g) The officer should be less than 56 years of age as on 1st day of January of the year in which the officer is being considered for absorption.
(h) Vigilance clearance from the Authority and parent department. The officer should not have been awarded any punishment under any departmental enquiry.
(6) Absorption of officers is to be decided by the Selection Committee, as prescribed in the NHAI (Recruitment, Seniority and Promotion) Regulations, 1996 (as amended from time to time).
(7) The power to relax any of the provisions of these guidelines will remain with the Authority.
3. Thereafter, the NHAI issued Memorandum dated 28.11.2009 invited applications for absorption from the eligible candidates. The Applicant has also applied for absorption and it was forwarded through proper channel from his parent department, i.e., Roads and Building Department, Government of Andhra Pradesh. The NHAI received about 300 applications and they were screened by a Screening Committee and out of them, 121 Applicants were found to be eligible for interview on 15.3.2010. The Applicant was also one among those 121 Applicants. The Selection Committee was headed by the Chairman, NHAI and all the 121 short listed candidates were interviewed. Thereafter, noting the submissions made on behalf of the Respondents that they will first consider the cases of the Applicants for their absorption and only thereafter, they would fill up the posts by lateral entry as per the advertisement, OA No.2807/2009 (supra) and connected cases were closed by this Tribunal vide order dated 25.3.2010. As the Respondents did not comply with the aforesaid order, the Applicants have filed MA therein for execution. This Tribunal disposed of the aforesaid MA vide order dated 29.09.2011 grating three more months for implementation and further directing the Respondents that there will be no need for them to wait indefinitely for no objection from the parent Department of the deputationist and it will be well within the jurisdiction to presume no objection if the same is not reported/given by the Parent Department of the concerned deputationist. The NHAI, vide W.P.C. No.3822/2012 and connected cases challenged the aforesaid order in some of the connected cases before the High Court of Delhi to the extent that the Tribunal directed the Respondents to treat the no objection as deemed to have received. The Respondents have finally agreed to accept the aforesaid order of this Tribunal dated 25.03.2010 and submitted that the delay in implementation was due to non-receipt of the No Objection. In the case of the Applicant, the No Objection Certificate and the Vigilance Clearance were already issued by his parent-department on 26.8.2011 and 07.12.2011 respectively. In spite of the aforesaid assurance, the Respondents did not take any further steps to implement the aforesaid order of this Tribunal dated 25.03.2010. On the other hand, they carried out the 3rd and 4th amendments to the National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996 both on 24.8.2012. In the 3rd Amendment Regulations, the residual service was increased from 4 years to 5 years. The relevant part of the said amended provision is reproduced as under:-
3. In sub-regulation (5) of the regulation 13 of the National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996 (hereinafter referred to as the principal regulations), for the clauses (b), (d), (g) and (h), the following clauses shall be substituted, namely, (b) At least two years of continuous service on deputation basis in the Authority in the post for which the officer seeks absorption.
(d) Consent of the cadre controlling authority in parent department.
Provided that this condition may be dispensed-with in case of officers or employees whose resignation/voluntary retirement has been accepted by the parent department.
(g) The officer should be less than 55 years of age as on Ist day of January of the year in which the officer is being considered for absorption and should have at least 5 years of residual service as per age for superannuation prescribed in Regulation 10 of the NHAI (Recruitment, Seniority and Promotion) Regulations, 1996 as amended from time to time.
(h) For officers who are already on deputation, vigilance clearance from Vigilance Division of NHAI will be required.
By the 4th Amendment Regulations, 2012, change has been brought about in Regulation 11 of the Regulations, 1996 as under:-
2. In regulation 11 of the National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996 (hereinafter referred to as the principal regulations), after clause (b) of sub-regulation (3), the following clauses shall be inserted, namely:-
(c ) to the Group A technical posts in the grades of Deputy Manager (Technical) and Manager (Technical), the Selection Committee will comprise of three officers (not below the rank of Chief General Managers) to be nominated by the Chairman.
(d) to the Group A technical post in the grade of Deputy General Manager (Technical), the Selection Committee will comprise of a Member (Technical/Project) and three Chief General Managers to be nominated by the Chairman.
(e) to the Group A posts in the grade of General Manager, the Selection Committee will comprise of Chairman and two Members to be nominated by the Chairman.
Provided that in each Selection Committee constituted under clauses (b), (c ), (d) and (e) above, a Group A officer of appropriate rank belonging to the Scheduled Caste or Scheduled Tribe shall also be inducted as a Member, in case no member of the Selection Committee belongs to the Scheduled Caste or Scheduled Tribe.
4. Based on the aforesaid amendments, the Respondents issued Circular dated 29.08.2012 inviting fresh application and the Private Respondents applied in pursuance to the said Circular. As the Applicant had already applied in response to the circular dated 28.11.2009, he did not apply again. As the selection process in the case of the Applicant was completed in the year 2010 and the result of the selected candidates were not declared, he has filed MA No. 10105/2012 In OA No.2807/2009 (supra) for execution of the order dated 25.03.2012. On receipt of the notice in the said MA, the Respondents handed over the copy of the impugned Annexure A-1 order dated 07.11.2012 informing him that his application was forwarded to the Screening Committee constituted by the Competent Authority in NHAI for scrutiny along with other applications and the Screening Committee considered his application and found eligible. Accordingly, his name was recommended to the Selection Committee for the final selection but Selection Committee has not recommended his candidature based on his performance during his tenure as discernable from his Annual Confidential Reports and Descriptive Assessment Report furnished by his CGM (Tech.) RO. A copy of the said letter dated 07.11.2012 issued to Shri B. Ravi Shankar Applicant in OA No.3841/2012 is produced as under:-
National Highways Authority of India (Ministry of Shipping, Road Transport and Highways) G-5&6, Sector-10, Dwarka, New Delhi-110075 File No.11012/155/2009-Admn.
07 November, 2012 To Shri B. Ravi Shankar National Highways Authority of India, 10, Kamadhnu Nagar, Karur-639002 Ph.04324-223670 Sub: Application for the post of Manager (Tech.) on absorption in NHAI.
Please refer to your application dated 02.12.2009 for the post of Manager (Tech.) in NHAI in response to NHAIs OM 11012/155/2009-Admn dated 28.11.2009 on the above subject.
2. I am directed to inform you that your application was forwarded to the Screening Committee constituted by the Competent Authority in NHAI for scrutiny alongwith other applications. The Screening Committee had considered your application and found eligible. Accordingly, your name was recommended to the Selection Committee for the final selection. However, Selection Committee has not recommended your candidature based on the performance during the tenure as discernable from your Annual Confidential Reports and Descriptive Assessment Report furnished by your CGM (Tech.) RO.
3. Your are requested to acknowledge the receipt of this letter.
Thanking you, Yours faithfully, (M.K. Singh) Dy. General Manager HR (Admin) Copy to:
The Chief Engineer Govt. of Karnataka, Communication and Buildings (S) Bangalore.
5. Meanwhile the Respondent No.1- M/o Road Transport and Highways have also issued the impugned letter dated 20.09.2012 to the Chairman, NHAI directing him to repatriate all officers who have completed more than ten years on deputation and also to consider only those officers with ten or more years of remaining service for absorption. The said letter is also reproduced as under:-
Government of India Ministry of Road Transport and Highways (Establishment-II (B) Section) Transport Bahwan, 1, Parliament Street, New Delhi-110001.
No.A-12025/19/2008-E-II(B) Dated the 20th September, 2012 To The Chairman, National Highways Authority of India, G-5&6, Sector-10, Dwarka, New Delhi-110075.
Sub: Extension of deputation tenure/absorption in respect of Manager (Tech.), DGM (Tech.) and GM (Tech.) level officers in NHAI.
I am directed to say that in the meeting held on 28.08.2012 in the chamber of Honble Minister (RT&H) to discuss the above issue, the following decisions have been taken:-
(i) These officers who have completed more than ten years on deputation in NHAI may be repatriated.
(ii) The officer with ten or more years of remaining service may be considered for absorption if otherwise found appropriate by NHAI.
(iii) The officers must be rotated after five years on regular intervals.
2. NHAI is, therefore, requested to take necessary action on the above points and to expeditiously devise a suitable mechanism of absorption/recruitment to meet the shortage of personnel at NHAI. Action taken in this regard may please be communicated to the Ministry so as to inform the Honble Minister (RT&H) accordingly.
6. The Applicant has challenged the aforesaid letters dated 20.09.2012 and 07.11.2012 in this OA on the ground that they are not sustainable legally as well as factually. According to him, the stipulation in the impugned letter dated 20.09.2012 that the officers with 10 or more years of remaining service may be considered for absorption is contrary to the Amendment Regulation, 2009, OM dated 28.11.2009 and the Amendment Regulations, 2012. He has also stated that it is the settled law that after the initiation of recruitment process, after the terms and conditions have been settled and notified, these terms and conditions cannot be altered during the process of selection or even thereafter. However, in the instant case, the selection process was initiated in the month of November, 2009 and it was almost complete in September, 2012. Therefore, there was no reason for the Respondent No.1 to send the aforesaid communication dated 20.09.2012. Again according to him, as per Regulations, 1996, he is entitled to get seniority of around 8 years as he was recruited in January, 2004 and he reported for duty in July, 2004. In case he was absorbed, he is entitled to get the seniority in the cadre of Manager (Tech.) from the date of initial appointment. Therefore, the clause 1 of the aforesaid letter dated 20.09.2012 is illegal and arbitrary. He has also pointed out that he was recruited initially in terms of the Recruitment Regulations, 1996 and he had applied for absorption in the month of August, 2005. Again, pursuant to the Memorandum of the Respondents dated 28.11.2009 inviting applications for absorption, he applied in the month of December, 2009 but it took three years to finalize the selection and declare the result in the month of September, 2012. He has challenged the impugned order dated 07.11.2012 as illegal and arbitrary also for the reason that his ACRs were rated over and above the prescribed benchmark and the said fact cannot be ignored and it is not feasible to say later that he is not fit for the post of Manager (T) based upon the same after serving Respondent No.2 for 8 years. Further, it is also a fact which cannot be ignored that after completion of 5 years, Applicants parent department wrote several letters to repatriate him but Respondent-NHAI requested them to retain him beyond 5 years as his services was very much required by them in the interest of national projects being handled by them. It is also a fact which cannot be ignored that even after his parent office, vide their letter dated 10.02.2011, informed the Respondent-NHAI that in terms of deputation rules, if the candidate continued beyond the approved period, it will be treated as deemed resignation from service. They have also informed the Respondent-NHAI that if the Applicant was not being repatriated immediately and continue to retain him on deputation beyond approved period, he shall be deemed to have resigned from services and no more correspondence shall be entertained and the Respondent will have to shoulder the responsibility for all the consequences. Even then the Respondent continued with the services of the Applicant but abruptly it has thrown him on the roads. Further, he has stated that there is no provision for constitution of two Screening Committees in terms of Regulation, 2009 and the recommendations of Committee which met and recommended his name in 2009 are final and binding.
7. The NHAI in its reply has submitted that in accordance with (Recruitment, Seniority and Promotion) Regulation, 1996, employees were being appointed from time to time on deputation basis on the post of Manager (Technical) from the year 2000 onwards. In the year 1999, vide Order No.11012/20/1998 dated 12.05.1999 certain guidelines for absorption of employees on deputation in NHAI were introduced. Vide letter dated 20.07.2005, an office memorandum was circulated through which applications of the interested/eligible officers for permanent absorption in NHAI were invited. However, in the grade of Manager (Technical) no one was absorbed due to administrative reasons and the process of absorption was deferred and the same was again taken up in December, 2009 by issuing Office Memorandum No.11012/11/2009 dated 28.11.2009 inviting applications from eligible candidates serving in NHAI on deputation as per the relevant regulations. The Applicant in pursuance to the aforementioned circular applied for absorption. Subsequently, to increase the number of regular employees, the method of direct recruitment through lateral entry was introduced in which the officers who have either served or serving in NHAI are given weightage. This was pursuant to the NHAI (Recruitment, Seniority and Promotion) Amendment Regulations, 2008 which was duly approved and notified in accordance with law. Accordingly, the process for absorption of officers on deputation was initiated and applications were invited up to the post of General Manager. Being aggrieved by the Regulations of 2008, some of the officers of NHAI filed OA before the Central Administrative Tribunal seeking, inter alia, the relief to declare the action of the NHAI to fill up 34 posts of Manager (Tech.) through later entry, as illegal and arbitrary. The said OA came up for admission on 25.09.2009. The Tribunal, vide its order dated 25.09.2009 directed the NHAI to maintain status quo with regard to the services of the Officers. Thereafter, this Tribunal, vide its order dated 25.03.2010, disposed of the said OA by directed the NHAI to first consider the cases of the employees who are on deputation for the absorption and only thereafter, to fill up the posts through lateral entry as per the advertisement in accordance with the Rules.
8. However, despite the efforts on the part of the NHAI, it could not complete the process of absorption exercise as directed by the Tribunal within 6 weeks. Therefore, some of the aggrieved officers filed MAs in the aforesaid OA before the Tribunal seeking directions to the NHAI to execute the order dated 25.3.2010 in true letter and spirit. This Tribunal vide its order dated 28.2.2011, inter alia, directed the NHAI to complete the absorption exercise within the next period of 6 weeks. Again the NHAI was unable to complete the process of absorption within the further time granted. Therefore, they have filed an application seeking extension of time to comply with the order dated 25.3.2010. In the said application, they have explained that obtaining No Objection Certificate/consent of the parent department is a time consuming process and in most of the cases, the parent department of the deputationist are either taking considerable time to respond or are not responding at all. It was also brought to the notice of this Tribunal that out of 155 applications for absorption, the No Objection Certificate from the parent department have been received only in respect of 5 candidates. In view of above position, vide order dated 29.09.2011, this Tribunal disposed of the application by granting three more months time to NHAI to comply and implement the order dated 25.3.2010 with the further direction that there will be no need for them to wait indefinitely for no objection from the parent Department of the deputationist and it will be well within the jurisdiction to presume no objection if the same is not reported/given by the Parent Department of the concerned deputationist. Being aggrieved by the order dated 29.09.2011, the NHAI challenged the aforesaid order dated 29.09.2011 only to the limited extent whereby this Tribunal directed the NHAI not to wait indefinitely for No objection from the parent department of the deputationist by filing W.P.C. No.3822/2012 before the Honble High Court of Delhi. Vide order dated 15.3.2013, the High Court quashed the directions contained in the order dated 29.9.2011 with respect to that the NHAI would treat deemed no objection if the Parent Department does not grant approval to an employee to be absorbed within a reasonable time. Thereafter, the NHAI, vide OM No.11012/174/2012 dated 29.08.2012 invited applications from those interested/eligible officers for permanent absorption who have not applied vide circular dated 28.11.2009. In the said Circular, it was made clear that the officers who have applied earlier through circular dated 28.11.2009, need not to apply again. 158 applications were received against Office Memorandum dated 28.11.2009 and 98 applications were received against OM dated 29.08.2012. Subsequently, vide Office Order No.11012/155/2009-Admn. dated 09.08.2012, a screening committee was formed constituting 3 officers of NHAI which scrutinized all the applications of absorption. Thereafter the NHAI constituted a Selection Committee vide Office Order dated 10.10.2012 comprising of three officers of the rank of CGM and one office of GM rank (SC/ST representative) for considering the list of selected applicants/officers for absorption for the post of Manager (Tech.). The Selection Committee scrutinized the list of selected applicants/officers furnished by the Screening Committee and also scrutinized requisite documents of the Applicants such as ACRs/Descriptive Assessment Report received from the concerned CGMs (Tech.), Vigilance/Disciplinary Clearances and No Objection Certificate. The Screening Committee while considering the selection of the candidates has taken into account the direction passed by the Ministry of Road Transport & Highways (MORTH) that the candidates with residual service of 10 years should be considered for absorption if otherwise found appropriate by NHAI, the Regulation 13 (5) of NHAI (Recruitment, Seniority and Promotion) third amendment Regulation, 2009, the performance and achievement of the candidates during their tenure in answering Respondent organization/NHAI available in ACRs, the Descriptive Assessment Report submitted by the respective CGM (Tech.) and also the need indicated by the respective Regional Offices for retaining the officers in NHAI. After completing the selection exercise, the Selection Committee recommended 69 candidates/officers (General-40, OBC-19, SC-08 and ST-02) to be absorbed in the post of Manager (Tech.). Thereafter, with the approval of the Competent Authority of NHAI, offers of appointment on absorption basis have been issued to the selected candidates on 27.10.2012.
9. The Selection Committee considered the candidature of the Applicant but he was not selected for the post of Manager (Tech.) on absorption, since one of the pre-requisite criteria of absorption was that a candidate should have Outstanding ACR for last 5 years and the Applicant had only Very Good in his ACRs for the last 5 years. The Applicant was also not meeting another eligibility criteria, i.e., having minimum 10 years of residual service as on 01.01.2012. They have also stated that though the applicant has laid much emphasis on the circular issued by MORTH vide letter No.A-12025/19/2008-E-II(B) dated 20.09.2012 which states that the officers with 10 or more years of remaining service may be considered for absorption, if otherwise, found appropriate by NHAI, but the Applicant in effect has not challenged the vires of the said Circular. Moreover, the said circular is an administrative decision, which under Section 33 of NHAIs Act, 1988, MORTH is empowered to issue directions to NHAI on its functions, duties and change of policy, if any. They have also stated that the decision of the Selection Committee cannot be interfered by this Court since the committee was constituted of three officers of the rank of CGM and once officer of GM rank (SC/ST representative) and they have taken decision after scrutinizing and considering requisite documents of all the Applicants.
10. The Respondent No.2 summarised their arguments: A deputationist has no right to absorption but he has only a right of consideration for absorption in accordance with the rules/administrative instructions in force on the date of consideration. The applicants were duly considered by a high powered selection committee on a criteria uniformly applicable to all. It is well settled that the courts do not act as a selection bodies and substitute their own opinion to the opinion of the experts bodies. Reliance in this regard is placed on U.P.S.C. Vs. Hiranyalal Dev and Ors. (1988) 2 SCC 242. It is misconceived to say that statutory regulations were sought to be amended by administrative order. In fact the regulations are framed by NHAI by virtue of power derived from section 35 of NHAL Act, 1958 while under section 33, M/o Road Transport and Highways is empowered to issue directions to NHAI in its functions, duties and policy. Their power to issue directions is under a statutory power and binding on NHAI. Reliance in this regard is placed on Food Corporation of India and Ors. Vs. Bhanu Lodh and Ors (2005) 3 SCC 618. The contention that two selection process one of 2009 and other of 2012 were clubbed together is devoid of any substance. The fact of the matter is that the process initiated in 2009 was not taken to its logical end on account of variety of reasons, one of which was the non-availability of No Objection Certificate from the parent departments. The mere fact that there were 300 applications and the screening committee shortlisted 121 candidates including the applicants who were interviewed could not give any vested right to the applicants for declaration of the results of interview and for an order of absorption in their favour. It is open to the respondents to stop the selection process before a candidates actually absorbed. No candidate can compel the Government or the Employer to complete the process merely on the ground that the selection process had reached an advanced stage. Reliance in this regard is placed on Shankarsan Dash Vs. Union of India (1991) 3 SCC 47 and Jai Singh Dala and Ors. Vs. State of Haryana 1993 Supp(2)SCC 600 and Anr. Selections were made in pursuance to the deliberations of the selection committee which was constituted vide office order dated 10.10.2012. The selection committee adopted the same criteria for every candidate, who was under consideration for absorption and there was no scope for arbitrariness. The contention that the applicants had applied in 2009 when the 2009 regulations were in force is again devoid of reasoning. Right of consideration is in accordance with the rules/regulations/administrative instructions in force on the date of consideration. The M/o Road Transport and Highways vide letter dated 20.09.2012 laid down that officers with ten or more years of residual service may be considered for absorption. The said decision has a rationale behind it, in as much as those aspiring for absorption in NHAI, should have sufficient service left to be of use to the organization and should not seek absorption just to suit their own convenience. The further contention that the applicants were not made aware that they should have residual service of 10 years is of no consequence. Even if the applicants had been put on notice in this regard and if they did not have 10 years of residual service, at best, they would not have applied for absorption but that could not be said to have caused them any prejudice. NHAI has the right to select the best candidates for permanent absorption and the directions issued by its Chairman vide note dated 21.09.2012 was to subserve this purpose. The controlling offices were required to state the usefulness of the candidate from the point of view of the functions performed by NHAI. It is thus not correct to say that the only relevant material was the ACRs.
11. The Private Respondents 5,7,9,16 & 17 have filed their reply through their counsel Shri Sameer Nandwani. They supported the action of the Respondent No.2 and stated that they rightly issued the order dated 07.11.2012 as the Applicant was not found eligible for absorption. They have also stated that the policy of absorption was uniformly applied to all the Applicants without prejudice and discrimination and, therefore, there is no mala fide or any illegality nor any such allegations has been made by the Applicant.
12. We have heard the learned counsel for the Applicants Shri S.K. Gupta in OA Nos. 901/2013, 909/2013, 1054/2013, 3821/2012, 3949/2012, 1228/2012 and 1229/2013, Shri Rajinder Khatter & Shri Manjeet Singh Reen in OA No.902/2013, Shri Rajinder Khatter in OA Nos. 3995/2012, 3996/2012, 4004/2012, 4007/2012 and 4407/2012, learned counsel for Respondents Shri P.P. Khurana, Sr. Counsel with Ms. Tanu Priya Gupta for Respondents No.1 and 2 in all the OAs, Shri Saba Rehman and Shir Vivek Singh for Respondent No.3 in OA No.909/2013, Shri Manish Kaushik Singh for Shri Sameer Nandwani for private Respondents No.5,7,9,16 & 17 in OA Nos.3821/2012, 3949/2012, 1228/2012 and 1229/2013 and perused the documents.
13. OA 3821/2012 B. Ravi Shankar Vs. NHAI was the first among all these OAs filed before this Tribunal. Considering the controversy involved in this Application, vide order dated 12.11.2012, we have ordered the Respondent-NHAI to maintain status quo in respect of continuance of the Applicant therein till the next date of hearing. Following the aforesaid order, we have passed the same interim order in this case also on 24.11.2012. The said interim relief is continuing from time to time.
14. In our considered view, the Respondent No.2-NHAI and the Respondent No.1-M/o Road Transport and Highways were quite arbitrary and whimsical in the entire recruitment process adopted by them for the absorption of the Applicants who have been on deputation with the former for a considerable period. In order to appreciate this case correctly, it is necessary to consider its facts in their right perspective. The Respondent-NHAI is a statutory body constituted under the National Highways Authority of India Act, 1988. Its functions were mainly being discharged initially by employing personnel from the Central/State Government(s) on deputation as well as contract basis. For the said purpose, they have notified the National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996. On that basis they were making appointments to various posts including Manager (Technical). Later on, they have issued guidelines for absorption vide Order No.11012/20/98 dated 12.05.1999. They have also suitably amended the Regulations, 1996 vide National Highways Authority of India (Recruitment, Seniority and Promotion) Third Amendment Regulations, 2009 and notified it on 23.10.2009. According to the amended Regulations, the deputationists with two years of continuous service were allowed to be absorbed at the level of General Manager and below. It was also stipulated therein that the officers should be less than 56 years of age as on Ist day of January of the year in which they are considered for absorption. Accordingly, the NHAI issued Memorandum dated 28.11.2009 inviting applications for absorption from the eligible candidates. The Applicants have also applied for their absorption. Thereafter, the Screening Committee constituted for the purpose, screened them and recommended them for absorption. They have also appeared before the Selection Committee on 15.03.2010 as the last stage in the process of absorption. But the said selection was not finalized only for the reason that the NHAI did not receive the No Objection Certificate (NOC for short) and Vigilance Clearance of some of the Applicants. Then onwards, the Applicants have been waiting for the Respondents order for their absorption. Meanwhile, the NHAI has attempted to bring in officers of the same rank by way of lateral entry. The Applicants have challenged the aforesaid decision before this Tribunal vide OA No.2807/2009 but it was disposed of vide order dated 25.03.2010 on the assurance of the NHAI that they will fill up the posts by lateral entry only after the case of the Applicants for absorption is decided. The Tribunal has also directed the NHAI to complete the process of absorption within 6 weeks. This Tribunal has also directed the Respondents to treat the no objection as deemed to have received. The Respondents challenged the aforesaid order before the High Court to the limited extent of the aforesaid direction and the High Court allowed it. As the NHAI failed to comply with the directions of this Tribunal to complete the absorption process within 6 weeks as aforestated, they have sought extension for compliance and this Tribunal vide order dated 29.09.2011 granted them three more months to them to comply with the order of this Tribunal dated 25.03.2010 with the further direction that there will be no need for them to wait indefinitely for no objection from the parent Department of the deputationist and it will be well within the jurisdiction to presume no objection if the same is not reported/given by the Parent Department of the concerned deputationist. The Applicants had no reason to disbelieve the Respondents and they were expecting the Respondents to issue the absorption order. Suddenly the focus was diverted by the Respondents and it made amendments in their Regulations on 24.08.2012 and dispensed with the condition of NOC from the parent cadres on technical resignation of the Applicants concerned. They have also reduced the maximum age limit from 56 to 55. Thereafter, they have invited fresh applications for absorption vide OM dated 29.08.2012 wherein it was mentioned that those who have already applied in terms of OM dated 28.11.2009 need not apply again. Meanwhile, the Respondent-Ministry of Road Transport and Highways has issued the impugned letter dated 20.09.2012 directing the NHAI that the officers who have completed more than ten years of deputation may be repatriated and officers with ten or more years of remaining service also may be considered for absorption, if otherwise found appropriate. The Applicants did not raise any objection against the aforesaid OM dated 29.08.2012 or the letter dated 20.09.2012 as their selection process was already over on 15.03.2010. However, as the order of this Tribunal dated 25.3.2010 in OA No.2807/209 (supra) was still not implemented, Applicants filed MA No.1015/2012 therein for the execution of the said order. Immediately, the Respondents have issued the impugned letter dated 07.11.2012 informing the Applicants that his application was forwarded to the Screening Committee constituted by the Competent Authority in NHAI for scrutiny along with other applications and the Screening Committee considered his application and found eligible. Accordingly, his name was recommended to the Selection Committee for the final selection but Selection Committee has not recommended his candidature based on his performance during his tenure as discernable from his Annual Confidential Reports and Descriptive Assessment Report furnished by his CGM (Tech.) RO.
15. It is an admitted position that the Applicants were the earlier claimants for absorption on the basis of the then existing National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996 as amended vide National Highways Authority of India (Recruitment, Seniority and Promotion) Third Amendment Regulations, 2009 and notified it on 23.10.2009. According to the said Regulations, for absorption of deputationists at the level of the General Manager and below, one of the criteria was that the deputationists should have at least two years continuous service on deputation in NHAI. The other criterion were that they should have been less than 56 years of age as on 1st day of January of the year in which they were being considered for absorption. Applicants fulfilled all the necessary criteria including the aforesaid two. The Screening Committee constituted under the said Regulations have considered them and declared them eligible for absorption. Their names have also been recommended to the Selection Committee and the said Committee has also considered them way back on 15.03.2010. The only reason given by the Respondents for not finalizing absorption was that the NOC and Vigilance Clearance from parent cadre of some of the Applicants have not been received. The Respondent repeatedly misled both the Applicants and the Tribunal by assuring that they will finalize the selection soon. Therefore, the present contrary stand of the Respondents that they were subjected to a fresh consideration by the Screening Committee is absolutely illegal, wrong and disrespect to the rules and regulations.
16. It is well settled that that once the statutory rules regulating the Recruitments are in place, the appointments have to be made in accordance with the said rules [J &K Public Service Commission Vs. Dr. Narinder Mohan (1994) 2 SCC 630]. Therefore, any recruitment made in violation of the relevant rules has to be held illegal and liable to be set aside. Further, when there is an amendment to the rules relating to eligibility, the posts which fell vacant prior to the amendment of the rules would be governed by the original rules and not by the amended rules and as a necessary corollary only the vacancies that arise subsequent to the amendment of the rules are to be filled up in accordance with the amended rules. In other words, the amendment to Recruitment Rules has no effect on vacancies that arose before such amendment and they will be governed by the un-amended provisions of the rules. In Y.V. Rangaiah & Others Vs. N. J. Srinivasa Rao & Others 1983 (3) SCC 284, the Apex Court held as under:-
The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
In its judgment in P. Mahendran & Others Vs. State of Karnataka & Others 1990 (1) SCC 411 also, the Apex Court held that the amended rules will not have retrospective effect and they cannot affect the right of the candidates adversely. The relevant part of the said judgment is as under:-
Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
Further, after the selection process is complete, a merit list/select list has to be prepared. The normal criterion to be followed is to prepare a list of selected candidates in the order of merit and recommend them for their appointment to the post advertised [State of Bihar Vs. Kaushal Kishore Singh (1998) 9 SCC 104]. Again, it is settled principle that vacancies of several years cannot be clubbed together so as to prepare a common select list [Vijay Pal Charak Vs. Union of India (2007) 9 SCC 743]. In the present cases, the Respondents have blatantly violated all the aforesaid well settled principles. The reliance placed by the learned counsel for the Respondents on the judgments of the Apex Court in the case of Hiranlal Dev and Others (supra), Bhanu Lodh and Others (supra), Shanksarsan Dash (supra), Jai Singh Data and Others (supra) have relevant in these case as the factual context of these cases is entirely different. The Apex Court in its judgment in Commissioner of Income Tax, Mumbai Vs. Anjum M.S. Ghaswala and Others AIR 2001 SC 3868 reiterated the well settled principle that when a statute vests certain powers in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner prescribed in the statute and not in any other manner.
17. In the result, these OAs are allowed. We also declare that the Annexure A-2 order dated 20.09.2012 and the Annexure A-1 letter dated 07.11.2012 have been issued de hors the rules and, therefore, they are quashed and set aside. The Respondents are directed to delink the process of absorption of the Applicants initiated by them, pursuant to their Memorandum dated 28.11.2009 from the subsequent Memorandum dated 29.08.2012. The process of absorption initiated in terms of their Memorandum dated 28.11.2009 shall be finalized strictly in accordance with the National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996 as amended vide National Highways Authority of India (Recruitment, Seniority and Promotion) Third Amendment Regulations, 2009 and notified it on 23.10.2009. To the aforesaid extent, the decision of the Selection Committee held in October, 2012 pursuant to the circular dated 29.08.2012 shall also be reviewed. If the Applicants are found fit, they shall be absorbed in NHAI with all consequential benefits including their seniority reckoning the initial dates of their appointment on deputation basis. As far as the Private Respondents are concerned, their absorption shall be strictly based on their seniority on the deputation post. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. No costs.
Let a copy of this order be placed in all the files.
(Shekhar Agarwal) (G. Geroge Paracken)
Member (A) Member (J)
Rakesh