Central Administrative Tribunal - Cuttack
Sheikh Fakiruddin vs National Highways Authority Of India on 13 May, 2020
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 510 of 2019
Present: Hon'ble Mr. Gokul Chandra Pati, Member (A)
Hon'ble Mr. Swarup Kumar Mishra, Member (J)
1. Sheikh Fakiruddin, aged about 48 years, S/o Late Sheikh
Samiruddin, Plot No.16, Vasundhra Housing Complex, At/PO-
Naharkanta, Hanspal, Bhubaneswar-751101, Now working as Jr.
Accounts Officer, PIU Bhubaneswar, NHAI, Group B.
2. Dilip Kumar Pradhan, aged about 47 years, S/o Sh. Chandra
Mohan Pradhan, At/PO- Jamuhota, New Colony, Dist.- Keonjhar-
758001, now working as Jr. Accounts Officer, PIU Keonjhar,
NHAI, Group B.
3. Ashok Kumar Pradhan, aged about 50 years, S/o Sh. Ramesh
Chandra Pradhan, At/PO- Barihapur, via- Parjang, Dist.-
Dhenkanal-759120. Now working as Jr. Accounts Officer, PIU
Dhenkanal, NHAI, Group B.
......Applicants
VERSUS
1. Union of India through Secretary, Ministry of Road Transport and
Highways, 1, Parliament Street, Transport Bhawan, New Delhi,
Pin -110001.
2. National Highways Authority of India, Through its Chairman, G-5
& 6, Sector 10, Dwarka, New Delhi-110075.
3. Sri Bhaskar Chandra Mishra, aged about 49 years, Son of Shri
Bhagirathi Mishra, presently working as Jr. Accounts Officer,
NHAI, resident of Village- Barapalla, P.O.- Nabaghanpur, Dist-
Nayagarh-752070.
4. Sri Manas Kumar Pani, aged about 50 years, Son of Aditya Kumar
Pani, presently working as Jr. Accounts Officer, NHAI, permanent
resident of Flat No. 494, 4th Floor, Prabhujee Enclave, Chandaka,
Kujimahal, Via-Road Kujimahalm, Bhubeneswar-754012.
5. Sri Lokanath Prasad Bhagat, aged about 47 years, S/o Late Sh.
Nagendra Prasad Bhagat, presently working as Junior Accounts
Officer, NHAI and permanent resident of At-Bepari Sahi, P.O.- Buxi
Bazar, Dist- Cuttack-753001.
6. Sri Shiv Kumar Jaiswal, aged about 50 years, S/o Late Suraj Nath
Jaiswal, presently working as Junior Accounts Officer, NHAI and
permanent resident of R/o- 516, W/2, Ananad Vihar, Naubasta,
Kanpur-208021.
7. Sri Ranjay Kumar Das, aged about 50 years, S/o Sri Bijay Krishna
Das, presently working as Junior Accounts Officer, NHAI and
permanent resident of 131, Nutanpalli, Durgabari, P.O. & P.S.-
Burdwan Sadar, Dist- Purba Bardhaman-713101.
8. Sri Rohit Kumar, aged about 48 years, S/o- Sri Jagdish Prasad
Sharma, presently working as Junior Accounts Officer, NHAI and
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permanent resident of R/o- Village & Post Paraswahi, Tahasil-
Amarpatan, Dist- Satna (M.P.). Madhy Pradesh- 485775.
9. Sri Narayana Sarode, aged about 44 years, S/o Sri Gopal Sarode,
presently working as Junior Accounts Officer, NHAI & Permanent
resident of Plot No. 55/5A, 1st main, 3rd Cross, Rajathagiri,
Vidyagiri, Dharwad, Karnataka- 580004.
10.Sri Sudhir Kumar Singh, aged about 51 years, S/o Late S.R.
Singh, presently working as Junior Accounts Officer, NHAI and
permanent resident of Main Road Gudari, Near Rajendra College,
Chhapra, Bihar- 841301.
11.Sri Dipesh Gunvant Shah, aged about 46 years, S/o Sri Gunvant
Dwarkada Shah, presently working as Junior Accounts Officer,
NHAI and permanent resident of 30, Subhas Colony, Chatri Talav
Road, Amravati, Maharastra-444606.
12.Sri Ghateshwar Majhi, aged about 47 years, S/o Late Biswambar
Majhi, presently working as Junior Accounts Officer, NHAI and
permanent resident of Vill- Kasati, P.O.- Balavadrapur, Via-
Arnnapal, Dist- Bhadrak- 756116.
13.Sri Anil Kumar, aged about 47 years, Sri Suresh Prasad, presently
working as Junior Accounts Officer, NHAI and permanent resident
of Janki Asthan, Goshala Road, Ward No. 3, Sitamarhi, Bihar-
843302.
14.Sri Mahendra Kumar Solanki, aged about 45 years, S/o Sri
Ramniwas Solanki, presently working as Junior Accounts Officer,
NHAI and permanent resident of R/o 22/1, New Colony (North),
Loharu Road, Pilani, Dist- Jhunjhunu, Rajasthan-333031.
15.Sri Rakesh Kumar, aged about 47 years, S/o Sri Mange Ram,
presently working as Junior Accounts Officer, NHAI and
permanent resident of At/P.O.- Jhanswa Kalan, Tehsil- Matenhail,
Dist- Jhajjar, Haryana-124146.
16.Sri Prem Ram Choudhury, aged about 47 years, S/o Sri Prabhu
Ram Choudhury, presently working as Junior Accounts Officer,
NHAI and permanent resident of R/o- 4335, Digari Kalla, Ajmer
Road, Jodhpur, Rajasthan-342015.
17.Sri Mathurananda Seth, aged about 55 years, S/o Late Gadadhar
Seth, presently working as Junior Accounts Officer, NHAI and
permanent resident of Vill- Jaykrishna Pur, P.O.- Chakulia, Dist-
Purba Bardhaman, West Bengal- 713132.
18.Sri M. Venkateswara Rao, aged about 50 years, S/o- Sri Venkaiah,
presently working as Junior Accounts Officer, NHAI and
permanent resident of G-1, Sreedevi Aptt., LIC Colony, JP Nagar,
Vijayawada (AP)- 520008.
19.Sri B. Somasundaram, aged about 47 years, S/o- Sri K.
Balakrishnan, presently working as Junior Accounts Officer, NHAI
and permanent resident of At- Madappuram, South Street, P.O.-
Kizhavaneri, Via- Vallioor, Dist- Tirunelveli, Tamilnadu- 627117.
20.Sri Nitesh Srivastava, aged about 47 years, S/o- Sri Harish Kumar
Srivastava, presently working as Junior Accounts Officer, NHAI
and permanent resident of "Braj Niketan", Sarvodaya Nagar,
Dhanbad, Jharkhand-826001.
21.Sri Harshad Chauhan, aged about 47 years, S/o- Bachubhai,
presently working as Junior Accounts Officer, NHAI and
permanent resident of 9/A, Harshad Society, B/s Primary School
Hansol, P.O.- Sardar Nagar, Ahmedabad, Gujarat-385475.
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22.Sri Madhur Dhanderwal, aged about 45 years, S/o- Sri K.L.
Dhanderwal, presently working as Junior Accounts Officer, NHAI
and permanent resident of LIG- 76, Bhakti Niketan, Kailash Nagar,
Govindpura, Bhopal, Madya Pradesh- 462023.
23.Sri Gyanendra Kumar, aged about 54 years, S/o- Late Shiv Dayal,
presently working as Junior Accounts Officer, NHAI and
permanent resident of R/o- Balkhandi-Naka, Behind Maheswari
Devi Temple, Banda, Uttar Pradesh-210001.
24.Sri Sanjay Kumar Sahu, aged about 48 years, S/o- Late Narendra
Sahu, presently working as Junior Accounts Officer, NHAI and
permanent resident of At- Chhancha, P.O.- Takatpur, Via-
Baripada, Mayurbhanj, Odisha-757003.
......Respondents
For applicants : Mr.S.K. Behera, Counsel for the applicants
For the respondents: Mr. G.R. Verma, Counsel for respondent no. 1
Mr. S.N. Mohapatra, Sr. Counsel for respondent no.2
Mr. S. Behera, Counsel for respondent no.2
Mr. S.K. Ojha, Counsel for respondent nos. 3 to 24
Heard & reserved on : 05.03.2020 Order on :13.05.2020
O R D E R
Per Mr.Gokul Chandra Pati, Member (A) The applicants are aggrieved by the order dated 4.6.2018 (Annexure- A/19 of the OA) by which their services were regularized w.e.f. 1.6.2018 and they pray in this OA that their services be regularized from the date of completion of five years of service in the post of Junior Accounts Officer (referred hereinafter as JAO). Another prayer is to declare that the condition of 'regular service of five years in the feeder cadre' as the eligibility condition for promotion to the post of Manager (F&A) stipulated in the Recruitment Rules as unreasonable and "misnomer since there was no regular recruitment in service in the feeder cadre except six persons recruited on contractual basis in 1999 and regularized in the same year....." Another prayer of the applicants is that promotion to 41 posts of Manager (F&A) should be done as per the Recruitment Rules of 2011 (Annexure-A/13) and not as per the amended Recruitment Rules of 2016 (Annexure-A/18), since the vacancies in question had arisen prior to 16.5.2016. The applicants, while challenging the advertisement dated 28.3.2019 (Annexure-A/20) to fill up 41 posts of Manager (F&A), want a direction to the effect that they will be eligible for being considered for 4 promotion to the aforesaid posts as per the 2011 recruitment rules and have also sought for all consequential benefits.
Applicants' case
2. The applicants were initially recruited as Accountants under NHAI on contractual terms and conditions in the year 2000/2001 after being successful in a written and viva voce test. The services of the applicants were extended after every two years in view of the fact that the NHAI undertook a large number of projects. They were granted regular pay scales since 2005 and were allowed the benefit of the sixth pay commission pay bands. In 2008, they were given the designation of JAO. Their pay scales were revised vide order dated 20.8.2008 (Annexure-A/8 series) for the applicants who were on contractual service. Regular JAOs were also granted the same pay scales. Hence, it is averred as under:-
"Thus, the status of employees as regular and long term contract makes no fundamental distinction. In other words, both are entitled to get the similar benefit on the principles of equality in law and equal opportunity in public employment....."
3. On completion of four years of service as JAO, the applicant no.1 was allowed higher grade pay of Rs. 5400/- in pay band 3 w.e.f. 1.1.2010 vide order dated 2.1.2018 (Annexure-A/12 of the OA). Similarly, the applicant nos. 2 & 3 were allowed the benefit of the grade pay of Rs. 5400/- w.e.f. 1.7.2010 in the same order dated 2.1.2018 (A/12). NHAI had promoted regular Accountant completing six years of service as Accountant to the post of JAO ignoring the applicants although they had also completed the required qualifying service. Two of the contractual employees moved the Tribunal (Principal Bench) by filing OAs which were allowed by the Tribunal with direction to consider the past services on deputation and on contractual service vide order dated 6.3.2012 (Annexure-A/16), which was implemented by NHAI only for those two employees who had moved the Tribunal and the same benefit was not allowed to the applicants.
4. The NHAI formulated a scheme for regularization of services of contractual employees vide order dated 7.1.2015 (Annexure-A/17) which would be in force prospectively. Under the scheme, the contractual employees with five years of service or more as JAO as on 30.6.2015 will be eligible for regularization. The applicants were not satisfied with the aforesaid scheme as it did not take care of their grievance since they had put in about 15 years of service as contractual employee and since the scheme does not provide for retrospective regularization. The applicants have been regularized w.e.f. 1.6.2018 after a delay of about 3 years after approval of the scheme of regularization, vide order dated 4.6.2018 (Annexure-A/19). The applicants' contention is that they 5 should have been regularized retrospectively from the date they had completed 5 years of service as JAO i.e. w.e.f. 2013 and not from 1.6.2018. The applicants are aggrieved due to inaction of the authorities not to regularized their services as Accountant or as JAO till 1.6.2018 although there were vacancies available and they were working against regular vacant posts and this is stated to have violated the principle of equality as enshrined in the Constitution of India. One of the reason furnished in the OA for claiming such benefits is that the accountants appointed on contractual basis in 1999 were regularized in 1999. Other ground is that they had all along worked continuously on contractual basis attending to the same duties as regular employees and had received the same pay scales as regular employees.
5. Further, the provisions in the Recruitment Rules of 2011 and 2016 stipulating regular service in the feeder cadre for promotion to higher posts are stated to be arbitrary and unreasonable since the Rules did not provide for any relaxation for the long term contractual employees like the applicants, who constituted about 90% of total strength of employees in the feeder cadre, particularly in the Finance Wing of NHAI. Another contention in the OA that since the vacancies in the posts of Manager (F&A), proposed to be filled up illegally by NHAI vide the advertisement dated 28.3.2019 (Annexure-A/22) by deputation, should have been filled up by promotion as per the Recruitment Rules of 2011 (A/13) after considering the applicants to be eligible for such promotion. Non-consideration of the applicants would be a violation of the judgment of Hon'ble Apex Court in the case of Maj. Gen. H.M. Singh vs. Union of India, AIR 2014 SC 1128. Aforesaid advertisement dated 28.3.2019 was issued by NHAI to fill up the posts of Manager (F&A) and Accounts Officer by deputation and the advertisement has been impugned in this OA by referring to the judgment of Hon'ble Apex Court in the case of Ratilal B Soni & others vs. State of Gujarat & others, AIR 1990 SC 1132.
5. The applicants have also filed Additional Affidavit (in short AA) with some additional averments/grounds in support of their claim in the OA. It is stated that the accountants appointed in 1997 through the advertisement in July, 1997 were selected though only interview without any written test and the applicants were selected after qualifying in the written test and then interview. The Chairman of NHAI was delegated to appointment on contractual basis only, for which the appointment of the accountants in 1999 on regular basis without any written test is 'against the provisions of the Regulations of 1996 and the same was beyond the delegated power vested in the Chairman by the Board' is to be treated as contractual appointment. In the case of Sri B. Vigneswaran, he was appointed on contractual basis for a period of 6 months 6 as per order at Annexure-A/4, but he was regularized before expiry of that period. It was averred that although the applicants are similarly situated as the accountants appointed in 1999, they were treated differently. The example of stenographers appointed on contractual basis and promoted to higher post of P.A and P.S. vide orders at Annexure-20 series has been cited by the applicants. It is also pointed out that the NHAI has resorted to appointing contractual employees as 'Young Professionals' in Finance wing although as per the order dated 7.1.2015 (Annexure-A/17), recruitment on contractual basis is prohibited.
Interveners' case
6. When the matter came up for admission before the Tribunal on 8.8.2019, the respondents were directed not to fill up three posts of Manager (F&A) in pursuance to the advertisement at Annexure-A/22. Thereafter, the respondent nos. 3 to 24 filed the MA No. 732/19 through their counsel to intervene in the OA on the ground that they are similarly placed as the applicants and are also entitled for the same relief as prayed for in the OA. Vide order dated 26.9.2019, the said MA was allowed after hearing the counsels for all the parties and the applicants' counsel was directed to file corrected cause title for the OA after incorporating the interveners as respondents. The interveners were also directed to file their counter, which was filed by them on 13.11.2019 in which it was averred that their case is similar to the applicants and hence, they are also entitled for the same reliefs as prayed for by the applicants. It was also averred that the Recruitment Rules 2016, the provision in the 2011 rules to declare the employees with 6 years of service in Grade Pay of Rs. 4800/- to be eligible for promotion as Manager (F&A), was removed, which adversely affected the interest of the applicants as well as the respondent nos. 3 to 24. The contentions in the OA have been supported by the respondent nos. 3 to 24 in their counter.
NHAI's case
7. Respondent no.2 (NHAI) has opposed the OA in their counter on the following grounds:-
Case of the Accountants appointed in 1999 was different as the advertisement in July, 1997 (Annexure-R/1 of the Counter) by which they were selected, did not mention that the appointment was on contractual basis and they were appointed as per order at Annexure-2 on probation for one year. But the advertisement of January, 2000 (Annexure-A/3 of the OA) by which the applicants were selected and order of appointment appointing them clearly mentioned that such appointment was contractual. Hence, the cases of the applicants are 7 different from those accountants appointed in 1999, even if the applicants were allowed similar pay scales as the regular employees. As per the Recruitment Rules, recruitment to the post of JAO can be through "promotion/deputation/direct recruitment/contract" and an accountant in NHAI working on contractual basis for 5 years or more will be eligible for appointment as JAO on contractual basis. For the post of Manager (F&A), the recruitment as per the Recruitment Rules of 2011 (Annexure-A/13) is done through "Promotion/ Deputation/ Direct Recruitment" and for promotion, an officer should have rendered 5 years of regular service in the Grade next below the Grade pay of Rs. 5400/- or six years of service in Grade Pay of Rs. 4800/-. Since the recruitment of Manager (F&A) does not include recruitment on contractual basis, an employee working on contractual basis cannot be considered for promotion to the said post.
The order of the Tribunal in OA nos. 3280 and 3281 of 2011 referred to in the OA, related to absorption of the employees appointed by way of deputation, which is not the case for the applicants as copy of the appointment order dated 3.5.2000 (Annexure-R/4 of the Counter) clearly reveals.
The contractual employees including the applicants had filed the OA No. 3031/2015 before the Principal Bench of this Tribunal with prayer to complete the process of regularization as per the scheme dated 7.1.2015 (Annexure-A/17 of the present OA). In the said OA, validity of the regularization scheme dated 7.1.2015 was not challenged and hence, it cannot be challenged in the present OA.
The applicants cannot challenge the policy decisions of NHAI in view of the judgment of Hon'ble Apex Court in the case of P.U. Joshi vs. The Accountant General, Ahmedabad.
Regarding the case of Sri B. Vigneshwaran, it is mentioned in the Counter (Annexure-R/3) that he was initially offered appointment on contract basis in June 1999 pending completion of pre-appointment formalities and after completion of such formalities, he was appointed as Accountant on regular basis w.e.f. 15.7.1999 when he joined against the post of Accountant on regular basis.
Further, the judgments in the cases of Deepak Agarwal and others vs. State of Uttar Pradesh (2011) 6 SCC 725; State of Tripura and Ors. vs. Nikhil Ranjan Chakraborty and Ors. (2017) 3 SCC 646 and Union of India and Ors. vs. Krishna Kumar and Ors. 2019 (10 SCALE 691 have been cited by the NHAI in their Counter to fortify their stand that the judgment in the case of Y.V. Rangiah & others vs. J. Srinivas Ray & others and the judgment of the Principal Bench in OA No. 535/2014 (Annexure-A/23 of the OA) relied upon by the applicants will not be applicable to the present case.
8. In reply to the AA filed by the applicants, the respondent no.2 (NHAI) denied the averment in the AA that the NHAI Board delegated the power to Chairman only for contractual appointments. No such stipulation was there as per the Minutes of the 16th meeting of the Board copy of which was enclosed to the Reply. It is also stated that as per the Regulations for recruitment at Annexure- A/26 of the AA, the selection of the persons for appointment can be done 8 through written test or interview or both. Hence, the selection of accountants in 1999 only through the interview, was not a violation of the Regulations.
Rejoinder filed by the applicants
9. Appointment of the accountants in 1999 through the advertisement of July 1997 (Annexure-R/1 of the Counter) without amending the Regulations for recruitment of staffs for NHAI (Annexure-A/26 of the Rejoinder) only on the basis of the interview was incorrect. The averment that the applicants are similarly placed as the accountants appointed in the year 1999 has been reiterated and the averments in the Counter filed by NHAI that the case of the applicants was different from the accountants appointed in 1999, have been denied. No decision has been taken by the Board to ignore that past services for counting seniority and qualifying for future promotion. Regarding the contentions in para 16 and 17 of the NHAI's counter regarding filing of the OA by the applicants on the issue of their regularization, it is stated in para 12 of the Rejoinder that during pendency of the said OA, NHAI issued the order of regularization in favour of the applicants w.e.f. 1.6.2018 on the basis of which the aforesaid OA was disposed of by the Tribunal 'with liberty to raise further grievance in accordance with law' and hence, the principle of res-judicata cannot be applied against the applicants for pursuing the present OA. The case of Sri B. Vigneswaran, appointed on contract basis vide order at Annexure-A/4 was also reiterated in the Rejoinder. The reason for delay in regularization of the applicants as stated in NHAI's counter was denied in the Rejoinder, stating that such delay was deliberate. Copy of the letter of NHAI to the administrative Ministry dated 7.5.2015 (Annexure-A/34 to the Rejoinder) has been cited to strengthen the claim of the applicants in the OA.
Oral and written submissions by the parties
10. Learned counsel for the applicant was heard and he also filed a written submissions mainly reiterating the contentions in the pleadings and citing the following judgments:-
(i) Baleshwar Dass & others vs. State of U.P. & others, AIR 1981 SC page-41
(ii) The Direct Recruit Class-II engineering Officers' Association and others vs. State of Maharashtra & others, AIR 1990 SC 1607 (para 13 & 47-B)
(iii) Amerendra Kumar Mohapatra & others vs. State of Orissa and others, (2014) 4 SCC 583
(iv) Judgment of the Principal Bench of the Tribunal in OA No. 3280/2011 at Annexure-A/15 & judgment of Hon'ble High Court at Annexure-A/16 confirming the Tribunal's judgment 9
(v) Judgment of the Tribunal in OA No. 535/2014 in OA No. 4063/2013 at Annexure-A/23
11. Learned Senior Counsel and Counsel for the Respondent Nos. 1 and 2 were heard reiterating the stand taken by the official respondents in the Counter. A written submissions was also filed on behalf of the NHAI, stating inter alia that the OA No. 3031/2016 filed by the applicants before Principal Bench for regularization of their service and the said OA was disposed of vide order dated 29.11.2018 with liberty to avail remedies in accordance with law, if the applicants are still aggrieved. It was reiterated that the applicants cannot be equated with the accountants who were appointed in 1999 as explained in the counter and they have no claim for promotion unless they fulfill the eligibility conditions as stipulated in the Recruitment Rules of 2016 and that there was no discrimination of the applicants as well as the respondent nos. 3 to 24.
12. Learned counsel for the respondent nos. 3 to 24 was heard and he also filed a written note enclosing the judgments in the cases of Union of India & Others vs. Dileep Kumar Singh (AIR 2015 SC 1420), Nihal Singh & others vs. State of Punjab & others (AIR 2013 SC 3547), Amarkant Rai vs. State of Bihar & Ors. [(2015) 2 SCC (L&S) 679], Prem Singh vs. State of Uttar Pradesh and others [(2020) 1 SCC (L&S) 1] and Alok Kumar Singh and others vs. State of Uttar Pradesh and others [(2019) 2 SCC (L&S) 265]. It was submitted that as per the scheme dated 7.1.2015 (Annexure-A/17), a contractual employee after completion of 5 years of service is to be regularized. It was argued that the aforesaid decision being benevolent in character, cannot be interpreted in a manner against the interest of the employees. Reference to the judgment in the case of Prem Singh (supra0 has been made in support of the stand that the applicants and interveners are entitled for regularization on completion of 5 years of service as JAO.
Issues for decision
13. Having regard to the stand of the parties in their pleadings on record and the submissions made on their behalf by their counsels as well as the facts and circumstances of the case, we are of the view that the following relevant issues are required to be resolved in this case:-
(i) Whether the provisions of the Recruitment Rules regarding the eligibility condition stipulating the minimum years of 'regular' service for promotion to the post of Manager (F&A) are sustainable in view of the claim in the OA that these are unreasonable and discriminatory for long term contractual employees like the applicants.10
(ii) Whether the applicants' claims that they are similarly placed as the accountants appointed by NHAI on regular basis in the year 1999 and they have not been allowed similar benefits in matters relating to regularization of services and promotion to higher posts, are tenable.
(iii) Whether promotion to the post of Manager (F&A) is to be done under the Recruitment Rules of 2011 (Annexure-A/13 of the OA) since the vacancies in question had arisen prior to the date when the amended Recruitment Rules of 2016 (Annexure-A/18) was notified.
(iv) Whether under the notification dated 7.1.2015 (Annexure-A/17 of the OA), the applicants and the respondent nos. 3 to 24 are entitled for regularization against the post of JAO from the date they had completed 5 years of service as JAO on contractual basis.
Discussion of the judgments cited by the parties
14. Before proceeding to decide the issues framed for the case, we will consider the judgments cited by the parties in this OA. In the case of Baleshwar Dass (supra), cited by the applicants, the dispute related to finalization of the seniority of the officials recruited through different sources as per the rules which were originally framed under the provisions of Government of India Act, 1919. The principle was laid down in the judgment on the basis of interpretation of the provisions of the rules relating to the manner of appointment of an official to the cadre and the date from which the official can be considered to be a member of service for the purpose of seniority. In the present OA, the dispute related to the date of regularization and eligibility for promotion to the post of Manager (F&A). Further, there is nothing on record to show that the applicants were appointed initially against temporary posts which were part of the cadre. The applicants were appointed on contractual terms for a specific period which was extended from time to time and there is nothing in the rules to show that such contractual appointment can be considered as a substantive appointment. Hence, the judgment in the cited case will not be applicable to the present OA.
15. In the case of Direct Recruit Class-II engineering Officers' Association (supra), the dispute pertained to the manner of fixing seniority of the direct recruit and promoted officers. In that case, Hon'ble Apex Court in an earlier judgment decided that the period of continuous officiation of an officer after his appointment on substantive basis has to be considered while fixing his seniority in the cadre. The issue in that case was whether the temporary posts against which the officers were officiating can be treated to be the part of the cadre. The present OA related to the dispute about eligibility condition in the rules and about the officers appointed on contract and not substantively against temporary posts. Hence, the cited judgment will not be helpful for the 11 applicants' case. Similarly, the case of Amerendra Kumar Mohapatra (supra) is factually different from the present OA.
16. The applicants also cited the judgment of the Principal Bench in OA No. 3280/2011 (copy at Annexure-A/15 of the OA). In that OA, the applicant was initially taken on deputation from Cement Corporation of India against the post of Manager (F&A) after being selected as per the advertisement issued for the purpose. As noted in the cited judgment, there was a stipulation in the advertisement that the candidates to be appointed initially on deputation may be considered for absorption in NHAI as per its policy and requirement. The appointment of the applicant was subsequently converted to contractual appointment. But in the backdrop of the above stipulation in the advertisement selecting the applicant of the OA No. 3280/2011, the Tribunal allowed the OA by directing the NHAI to consider absorption of the applicant of that OA against the post of Manager (F&A) as expeditiously as possible and if he is given regular appointment after such consideration, then he will also be considered for promotion to the next higher post. The aforesaid judgment was challenged by NHAI before Hon'ble Delhi High Court in a writ petition which was dismissed as per the judgment at Annexure-16 of the OA. It is seen from the advertisement of January 2000 at Annexure-A/3 of the instant OA by which the applicants were selected for contractual appointment for specified period as Accountant, no stipulation for consideration for regular absorption in NHAI was there in the said advertisement. There is nothing on record to show that the NHAI had given any assurance to the applicants to absorb against the regular posts till policy decision was taken to regularize the contractual employees as per the notification dated 7.1.2015 (Annexure-A/17 of the OA). We are, therefore, of the considered view that the judgment of the Tribunal in OA No. 3280/2011 is factually distinguishable and hence, the judgments at Annexure-A/15 and A/16 of the OA will not be applicable to the present OA.
17. The applicants have also relied on the judgment dated 14.11.2018 (Annexure-A/23) of the Principal Bench of this Tribunal in OA No. 535/2014 to justify the reliefs sought for in the instant OA. In OA No. 535/2014, the applicant was a Scientist under the Ministry of Water Resources and he was claiming promotion under the Rules of 1983. It was held by the Tribunal as under:-
"2. In the organisation, Flexible Complementing Scheme (for short, FCS), is being implemented. Under this, Scientist of a particular category would become eligible to be promoted to the next category on completion of stipulated length of service, subject to evaluation by the Departmental Assessment Board (for short, DAB). The categories involved are Research Officer (RO), Senior Research Officer (SRO), Chief Research Officer (CRO) and Joint Director. Under the Rules of 1983, the ceiling of 30% was 12 prescribed as regards certain categories, in the context of operating the FCS. That, however, was relaxed under the Rules of 2010. Another aspect of change in the Rules of 2010 is that there is stipulation to the effect that promotions, whenever ordered shall be prospective in nature and there cannot be any retrospective promotion.
3. The applicants contend that the DAB was conducted in the year 2006, by which time, they did not become eligible to be promoted to the next higher category, and though they became eligible in the year 2007 & 2008, the DAB was conducted only in the year 2013, subsequent to the framing of new Rules, but they were denied promotion with effect from the date from which they became eligible. They submitted a representation to the respondents in this behalf. Though a communication dated 28.05.2013, the 2nd respondent informed the applicants that they are not entitled to be promoted with retrospective effect in view of the stipulations contained in the new Rules of 2010. The same is challenged in this OA.
4. The respondents filed a counter affidavit opposing the OA, and an objection is raised to the limitation. On merits, it is stated that the DPC could not be held subsequent to 2006 in view of the ongoing process for amendment to the Rules, in compliance with the directions issued by the Hon'ble Delhi High Court, and thereafter the DAB met. It is also stated that the provisions of law which are in force as on the date of the meeting of DAB would become applicable and the contention of the applicants cannot be accepted.
5. We heard Shri S. K. Gupta, learned counsel for the applicants and Shri R. K. Jain, learned counsel for the respondents in detail.
6. The question that arises for consideration in this OA is as to whether the promotion of the applicants to a higher post is to be governed by the Rules of 1983 or the Rules of 2010.
7. It is not in dispute that the applicants acquired eligibility to be promoted to a higher post in the year 2007 & 2008. We are not on the question as to the justification or otherwise of not holding the DPC till the year 2013. The reason is that the Government was seriously considering amendment of the Rules as per the directions issued by the Delhi High Court. Ultimately, the DAB met in the year 2013 and found all the applicants herein to be eligible to be promoted to the next higher post.
...........................................
10. We, therefore, direct the 2nd respondent to convene a review DAB to consider the cases of the applicants and other eligible persons against all the vacancies that existed before 01.01.2011, with reference to the Rules of 1983 in all respects including the one of eligibility and ceiling limits, and in case it is found that they are eligible to be promoted, promotion shall be effected under the said rules in all respects. The exercise in this behalf shall be completed within a period of four months from the date of receipt of certified copy of this order. This order shall not be construed as expressing any view on retrospectivity or otherwise of the promotions."
18. As observed in paragraph 7 of the above judgment, there was no dispute about the eligibility of the applicant in OA No. 535/2014 for promotion in the year 2007 and 2008, but he could not be promoted as no DPC was held in view of the proposal to amend the Rules as per the direction of Hon'ble Delhi High Court. It cannot be said that eligibility of the applicants in the present OA before us for promotion to the post of Manager (F&A) under the pre-amended Rules of 2011 (Annexure-A/13) is undisputed. It is noticed that the claim of the respondent nos. 3-24 in para 9 of their Counter that they were eligible for promotion to the post of Manager (F&A) has been denied by the NHAI in their 13 'Response' dated 2.3.2020 to the Counter filed by the respondent nos. 3-24. The contention of the NHAI in their Counter is that since the rules do not provide for recruitment to the post of Manager (F&A) on contract, the contractual employees cannot be considered for appointment to the post of Manager (F&A). Hence, it cannot be said that the eligibility for promotion of the applicants as well as the respondent nos. 3-24 was undisputed and therefore, the OA No. 535/2014 is factually different from the present OA, for which the cited judgment at Annexure-A/23 of the OA will not be applicable.
19. The applicants have also referred to the judgments in the case of Maj. Gen. H.M. Singh (supra) in the OA, which the dispute was on account of promotion of an officer of armed forces whose case was recommended by the Committee belatedly just before his retirement date and Government did not approve the proposal for promotion on the ground that the officer was on extension. Another judgment refereed in the OA is in the case of Ratilal B Soni (supra). Both these judgments will have no application to the present OA as the facts and the nature of disputes in the cited cases were different.
20. The judgment in the case of Dileep Singh (supra) has been referred to in the written notes submitted on behalf of the respondent nos. 3-24, while arguing that the leading provision in the regularization scheme dated 7.1.2015 of NHAI providing for regularization of contractual employees on completion of 5 years of service, will override other provisions in the said scheme, which has not been implemented by NHAI in true spirit of the scheme for the applicants and the respondent nos. 3-24. The question is what is to be considered as the leading provision in the scheme dated 7.1.2015. We will revert back to this matter subsequently while considering the issue at paragraph 13 (iv) of this order.
21. The judgment in the case of Nihal Singh (supra) has been cited by the respondent nos. 3-24, in which the dispute pertained to regularization of the services of Special Police Officers appointed as per the provisions of section 17 of the Police Act, 1961 to mitigate a situation of shortage of the police officers to handle law and order situations. It is seen from the judgment that the appointment order of the petitioner/appellant as Special Police Officer was under a statutory provisions, which was not a contractual appointment. This is not the case of the applicants of the present OA, who were appointed on contractual basis by NHAI for specific period, which was extended from time to time. Further, the dispute in present OA is not due to refusal of NHAI to regularize the services of the applicants and respondent nos. 3-24, but due to the date of such regularization and eligibility for further promotion. Hence, the 14 cited judgment is factually distinguishable and it will not help the applicants or the respondent nos. 3-24.
22. Similarly, in the case of Amarkant Rai (supra), the dispute related to the claim of regularization of the appellant who was initially appointed temporarily on daily wage basis against a Class IV post. His engagement was terminated in the year 2001 although the University was aware of the fact that he was appointed by the Principal who was not competent to appoint on daily wage basis. The appellant had successfully challenged termination in the year 2001 before Hon'ble High Court and he was reinstated as per the order of the Registrar w.e.f. 3.1.2002 and he was removed from service in 2007. Taking into Facts and circumstances of that matter and after referring to the provision for one time measure for regularization in the judgment in the case of Secretary, State of Karnataka vs. Umadevi & others, Hon'ble Apex Court directed to regularize the services of the appellant from 3.1.2002 when he was reinstated in service as per the direction of Hon'ble High Court. It is clear that the facts in the cited case are different from the facts in the present OA, for which the cited judgment will have no application to the present OA before us.
23. In the case of Prem Singh (supra), the dispute pertained to the calculation of work charged service as qualifying service for the purpose of pension. It is seen that the rules provide for treatment of the work charged service period differently for different category employees and such provision was held to be bad in law. In the case of Alok Kumar Singh (supra), the facts are different. Hence, both these judgments will not be of any help to the respondent nos. 3-
24.
24. On behalf of the respondent no. 2 (NHAI), reliance has been placed on the judgment dated 31.3.2011 of Hon'ble Apex Court in the case of Deepak Agarwal (supra), in which the dispute was about applicability of the amended recruitment rules to the vacancies arising prior to coming into force of the amended rules. The appellant claimed that since the vacancies for the promotional posts occurred prior to amendment of the recruitment rules, his case should be considered as per the rule that was in force when the vacancy occurred and not the amended rules. In the present OA also, the applicants have made a similar prayer to consider their case as per the Recruitment Rules of 2011 vide paragraphs 4.29 and 8(iv) of the OA. Hon'ble Apex Court, while examining the right of the appellant to be considered for promotion under the rules prior to amendment, has held as under:-
"20. Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions of the 12 vacancies have been made on 26th May, 1999 under the amended Rules.15
The High Court rejected the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in the case of Y.V. Rangaiah (Supra). The High Court has relied on the judgment of this Court in Dr. K. Ramulu (supra).
21. We are of the considered opinion that the judgment in Y.V. Rangaiah's case (supra) would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amendment rules would be governed by the old rules and not the amended rules. In the present case, there is no statutory duty cast upon the respondents to either prepare a year-wise panel of the eligible candidates or the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable rules. The requirement to identify the vacancies in a year or to take a decision how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhawan that the vacancies, which had arisen before 17th May, 1999 had to be filled under the unamended rules.
22. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the `rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it can not be accepted that any accrued or vested right of the appellants have been taken away by the amendment. The judgments cited by learned counsel for the appellants namely B.L. Gupta Vs. MCD (supra), P. Ganeshwar Rao Vs. State of Andhra Pradesh (supra) and N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra)."
Clearly, the nature of dispute and factual circumstances of the cited case being similar to the present OA, the ratio of the judgment in the above cited case will be squarely applicable to the present OA. In other words, the applicants will be entitled to be considered for promotion under the rule that was in force when vacancy occurred if the said rules provide that the promotion in question is to 16 be completed within a stipulated time. No such provision is there in the Recruitment Rules of 2011 that promotion to the post of Manager (F&A) during a year is to be completed within a stipulated timeframe. Hence, as per the judgment supra, the rule that was in force at the time of consideration of the applicant for promotion (Recruitment Rules of 2016 in this case) will be applicable and the claim of the applicants as well as of the respondent nos. 3- 24 for consideration under the Recruitment Rules, 2011 will not be tenable.
Issue at paragraph 13(i)
25. It is the undisputed fact that the applicants and the respondent nos. 3 to 24 were recruited on contractual basis since years 2000/2001 and there is nothing in their pleadings on record to reveal if they had agitated their grievance relating to the provisions in the Recruitment Rules in 2011 or 2016 regarding eligibility condition of five years of regular service for promotion to the post of Manager (F&A) before this Tribunal prior to filing of this OA. The challenge to these provisions have been made in this OA after the applicants' regularization of service w.e.f. 1.6.2018 as per the scheme dated 7.1.2015 (Annexure-A/17) and after the impugned notification dated 28.3.2019 (Annexure-A/22) for recruitment of Manager (F&A) on deputation. It is noticed that the grounds furnished in the pleadings of the applicants and respondent nos. 3 to 24 do not justify the challenge to such provisions of the Recruitment Rules. Further, no explanation has been furnished by the applicants for delay in challenging such provisions of the Recruitment Rules of 2016 which was notified on 16.5.2016 and no judgment/citation has been furnished by the applicants and the respondent nos. 3 to 24 to justify the challenge to such provisions of the Recruitment Rules.
26. It is the settled law that the Tribunal cannot interfere in the rules stipulating the eligibility criteria for promotion to a particular posts. In the judgment of Hon'ble Apex Court in the case of P.U. Joshi (supra), which is referred to in NHAI's Counter, the matter involved grievances of the employees of the Accountant General who were not promoted on the ground that they did not fulfill the criteria for promotion as laid down under the rules and they claimed before the Tribunal that they have not been allowed equal opportunity. Such claim was rejected by the Tribunal. Being aggrieved, the concerned employees appealed in P.U. Joshi (supra), Civil Appeal No. 4679-4680 of 1996, in which it was held in the judgment dated 19.12.2002 of Hon'ble Apex Court as under:-
"We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of 17 qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
27. For the reasons discussed above, we are unable to accept the grounds furnished by the applicant as well as the respondent nos. 3 to 24 to challenge the provisions of the Recruitment Rules regarding the eligibility conditions for promotion to the post of Manager (F&A) and the issue at (i) of paragraph 13 is decided in affirmative and against the applicants.
Issue at paragraph 13(ii)
28. The applicants and the respondent nos. 3 to 24 claim that their case is similar to the Accountants who were appointed in the year 1999 (referred as 'Accountants-99' hereinafter) after their selection through the advertisement dated 16.7.1997 (Annexure-R/1 of the NHAI's Counter). The NHAI avers that the applicants' case was different from the case of Accountants-99, who were appointed on regular basis as the advertisement at Annexure-R/1 does not specify that the appointment was on contract basis, unlike the applicants in whose case the advertisement clearly specified that their appointment will be on contractual basis which was accepted by the applicants. Similar was the case of the respondent nos. 3 to 24. The appointment of one of the Accountants-99 on contractual basis vide order at Annexure-A/4 was explained by NHAI that before completion of pre-appointment formalities, he was appointed on contract and subsequently, he was allowed to join on regular basis on 15.7.1999 vide letter at Annexure-R/3 of NHAI's counter. The applicants have raised question of the authority of the Chairman, NHAI to regularly appoint the Accountants-99, without formally challenging the 18 appointment of the Accountants-99 in the OA or without incorporating the concerned employees as parties in this OA. NHAI has explained in their Counter that the delegation of power to Chairman included authority to appoint on regular basis as per the Regulations of 1996 (Annexure-A/26 of the Rejoinder). It is clear from the advertisement dated 16.7.1997 (Annexure-R/1) that the selection and appointment of the Accountants-99 was not on contractual basis like the applicants, in whose case the advertisement of January 2000 (Annexure-A/3) clearly stipulated that the appointment of the applicants will be on contractual terms and conditions which were accepted by the applicant. There is nothing on record that the applicants had claimed parity with the Accountants-99 within a reasonable time after being appointed in the year 2000/2001 in pursuance of the advertisement at Annexure-A/3. We are not convinced by the grounds furnished by the applicants to claim equality with the Accountants-99 who were appointed under different process as the advertisement for their recruitment was different from the advertisement for selection of the applicants. Hence, there is no justification for the claim that the applicants are similarly situated as the Accountants-99, although both might be enjoying the same scale of pay and some other service benefits and the issue at paragraph 13(ii) is also answered in negative against the applicants.
Issue at paragraph 13(iii)
29. The issue pertains to the claim of the applicants and of the respondent nos. 3-24 to be considered for promotion to the post of Manager (F&A) as per the Recruitment Rules, 2011 since the vacancies of the posts in question had arisen prior to amendments in 2011 rules. As discussed in paragraphs 18 and 24 of this order, such claim is not tenable as per the settled position of law on this issue. Hence, the issue at paragraph 13(iii) has to be answered against the applicants.
Issue at paragraph 13(iv)
30. It is averred that the provision in paragraph 13A(1) (b) of the notification dated 7.1.2015 (Annexure-A/17 of the OA) that the employees on contractual basis completing 5 years of service will be eligible for regularization under the scheme, is to be treated as the leading provision in terms of the judgment in the case of Dileep Singh (supra) as it beneficial for the employees. It is noticed that in the notification dated 7.1.2015, it is stipulated very clearly that the said notification "shall come into force on the date of their publication in the Official Gazette" as stipulated in paragraph 1(ii) of the notification. In view of the stipulations in paragraph 1(ii) of the notification, no benefit under the aforesaid 19 notification can be claimed with effect from the date prior to 7.1.2015, since the date of publication in the Official Gazette has to be on or after 7.1.2015 and prior to 7.1.2015, the said notification is not in existence in view of the stipulations in paragraph 1(ii). The salient features of the paragraph 13A(1) of the notification dated 7.1.2015 (Annexure-A/17) are as under:-
"13A(1) Scheme for one time Regularisation of long-term contract employees:- Only those officers/employees appointed on long term contract who fulfill the following conditions shall be considered for regularization below the post of Manager:-
(a) Should not be more than 55 years of age as on 01.01.2014.
(b) Would be eligible for regularization after completion of five years of continuous service on long term contract basis (including their initial period of deputation, if any) and this five years of continuous service should either be complete or should be completed on or before 30.06.2015.
(c) ..................
(d)..................
(e)...................
(f) The regularization shall have prospective effect i.e. from the date of the orders of regularization.
........................................................"
31. It is seen from above that the long term contract employees will be eligible for consideration for regularization on completion of 5 years of service as on 30.6.2015. Further, the scheme does not have any provision for regularization from the date an eligible contractual employee completes 5 years of service on or before 30.06.2015. Rather it has a provision that the regularization will be effective from the date of issue of the order of regularization and the benefit under the said notification will be available from 7.1.2015 in view of the stipulations in paragraph 1(ii) of the said notification stating that the Regulations providing for regularization of services will come into force from the date of their publication in Official Gazette. It is also noted that the said notification dated 7.1.2015 (Annexure-A/17) has not been challenged in the present OA. In the circumstances, we are unable to agree with the submissions of the respondent nos. 3-24 that the provision in paragraph 13A(1)(b) is the leading provision of the scheme under which the applicants and the respondent nos. 3-24 will be entitled for regularization from the date of completion of 5 years of contractual service even if such dates are prior to 7.1.2015 and the issue at paragraph 13(iv) has to be answered in negative against the applicants.
20Discussion and Conclusion
32. As discussed above, all the issues framed in paragraph 13 are decided against the applicants and the averments in the OA are not convincing. However, the averments in para 4.24 of the OA regarding the delay of about three years in implementing the notification dated 7.1.2015 for regularization of services of the applicants states as under:-
"4.24 That even after framing of the regularization scheme on 07.01.2015, the effect thereto was delayed for another three years without any valid and apparent reason which can be attributed to callousness and mala fide conduct of the authorities. The order of regularization of the applicants was issued after more than three years on 04.06.2018 w.e.f. 01.06.2018, a copy of which is filed herewith as ANNEXURE-A/19....................."
In reply, the NHAI in their Counter have stated that the regularization could not be completed due to objection of the Ministry and DOP&T and the matter was also subjudice in OA No. 3031/2015 before the Principal Bench of the Tribunal. However, no details about the objections raised by the Ministry and DOP&T have been furnished by the NHAI. Though the applicants have suffered due to such delay in implementation of the scheme dated 7.1.2015, but they will not be entitled for any relief in view of the provisions in the Regulation 13A(1)(f) of the notification dated 7.1.2015 that the regularization will have prospective effect and the said notification dated 7.1.2015 has not been challenged in this OA.
33. In the circumstances as discussed above, we do not find the grounds furnished by the applicants in the OA to be adequate to call for any interference of this Tribunal in the matter. Hence, the OA is liable to be dismissed. Accordingly it is dismissed. However, the respondent nos. 1 and 2 will be at liberty to consider suitable relaxation in the rules regarding eligibility for promotion to the post of Manager (F&A) taking into consideration the delay in implementation of the regularization scheme dated 7.1.2015 (Annexure- A/17). There will be no order as to cost.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI)
MEMBER(J) MEMBER (A)
bks