Gauhati High Court
Binay Kumar Diwana vs The Union Of India And 7 Ors on 20 October, 2022
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/11
GAHC010202502022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6580/2022
BINAY KUMAR DIWANA
S/O-SHREEKRISHNA CHAURASIA,
R/O- TYPE III, QUARTER NO- 14, NHPC COLONY, GERUKAMUKH,
DIST- DHEMAJI, PIN-787035
VERSUS
THE UNION OF INDIA AND 7 ORS
REP. BY THE SECRETARY (POWER), SHRAM SHAKTI BHAWAN, RAFI
MARG, NEW DELHI-01
2:NATIONAL HYDRO POWER CORPORATION (NHPC) LIMITED
REPRESENTED BY ITS CHAIRMAN CUM MANAGING DIRECTOR
CORPORATE OFFICE COMPLEX
SECTOR-33
FARIDABAD
HARYANA--121003
3:THE CHAIRMAN CUM MANAGING DIRECTOR
CORPORATE OFFICE COMPLEX
SECTOR-33
FARIDABAD
HARYANA--121003
4:THE EXECUTIVE DIRECTOR
NHPC LIMITED
CORPORATE OFFICE COMPLEX
Page No.# 2/11
SECTOR-33
FARIDABAD
HARYANA--121003
5:THE GROUP GENERAL MANAGER (CIVIL)
NHPC LIMITED
CORPORATE OFFICE COMPLEX
SECTOR-33
FARIDABAD
HARYANA--121003
6:NTPC SCHOOL OF BUSINESS
REP. BY ITS DEPUTY DIRECTOR GENERAL
PLOT NO 5-14
SECTOR 16-A
NOIDA-201301 (UP)
INDIA
7:BIJOY R NAIR
TRAINING AND DEVELOPMENT DEPARTMENT
NHPC LIMITED
CORPORATE OFFICE COMPLEX
SECTOR-33
FARIDABAD
HARYANA--121003
8:NARESH BANSAL
TRAINING AND DEVELOPMENT DEPARTMENT
NHPC LIMITED
CORPORATE OFFICE COMPLEX
SECTOR-33
FARIDABAD
HARYANA--12100
Advocate for the Petitioner : MR. U K NAIR
Advocate for the Respondent : ASSTT.S.G.I.
Page No.# 3/11
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 20-10-2022 Heard Mr. U.K. Nair, learned Senior Counsel assisted by Mr. M.P. Sarma, learned counsel for the petitioner, who submits that the selection of the respondent Nos. 7 & 8 for the 8 th Batch of 15 months Full Time Residential Programme in PGDM (Executive) Programme of NTPC School of Business (NSB), Noida, in terms of the "NHPC Scheme of Facilities for Higher Studies", made in pursuant to the selection process undertaken in respect of the Circulars dated 23.06.2022 and 19.07.2022, should be set aside.
2. The petitioner's case is that the petitioner, who is working under the National Hydroelectric Power Corporation (NHPC), had submitted his application for sponsoring 2 (two) candidates for the 8th Batch of 15 months Full Time Residential Programme in PGDM (Executive) Programme of NTPC School of Business (NSB), Noida, herein after referred to as the "Training Programme", in terms of the Circular dated 23.06.2022, issued by the respondent No. 4. The respondent No. 4 thereafter issued the names of the shortlisted applicants for online interview, wherein the petitioner's name appeared at Sl. No. 1 and the date and time for interview was fixed on 20.07.2022 at 2:30 P.M, vide Inter Office Memorandum (IOM) dated 15.07.2022.
3. The interview schedule for 20.07.2022 was postponed by the respondent No. 4, vide Communication dated 19.07.2022. Thereafter, the respondent No. 4 issued Circular dated 19.07.2022, extending the date of submission of applications for the "Training Programme", in terms of the Circular dated Page No.# 4/11 23.06.2022 upto 26.07.2022.
4. The petitioner's further case is that a new list of candidates was made by the respondent No. 4, who were to participate in the interview through IOM dated 03.08.2022. However, as the name of the petitioner was not amongst the 10 (ten) names/candidates mentioned in the subsequent IOM dated 03.08.2022, the petitioner filed WP(C) No. 5105/2022, praying that he should be allowed to take part in the interview.
5. The petitioner's counsel submits that in pursuance to the Order dated 05.08.2022 passed in WP(C) No. 5105/2022, the petitioner was allowed to participate in the interview held on 06.08.2022, even though his name was not included in the list of candidates made vide IOM dated 03.08.2022. That subsequent to the said facts, the respondent Nos. 2 to 5 have selected the respondent Nos. 7 & 8 for the Training Programme, in pursuant to the Circulars dated 23.06.2022 and 19.07.2022.
6. The petitioner's counsel submits that the respondent Nos. 7 & 8 could not have been selected as candidates for the Training Programme on 5 (five) counts:-
Firstly, the respondent No. 7 cannot furnish a service agreement bond to serve NHPC for a period of 10 years from the date of completion of the training course, in terms of Clause 1.4 of the "NHPC Scheme for Facilities for Higher Studies", as the respondent No. 7 was born on 18.10.1973. Secondly, the results of the selection test were not published, but were made known internally. Thirdly, the date of submission of applications for the "Training Programme" was Page No.# 5/11 extended upto 26.07.2022 from 02.07.2022, by the Executive Director (HRD) instead of the competent person, who is the Chairman-cum-Managing Director (CMD) of NHPC. Fourthly, the selection of the respondent Nos. 7 & 8 as successful candidates for the Training Programme, had not been made on the basis of any recommendation by the Selection Committee, but on the basis of the marks obtained by the candidates, as recorded in the evaluation sheet made by the Selection Committee. Fifthly, the selection of the respondent Nos. 7 & 8 as the 2 (two) successful candidates for the Training Programme had been made by the Gr. Deputy General Manager (E) and not by the competent authority, i.e., the CMD.
7. Mr. D. Senapati, learned counsel appearing for the respondent Nos. 2 to 5 submits that the "Training Programme" having started on 28.07.2022 and as the same is to be completed after 15 months, the respondent No. 7 would have the required minimum period of 10 years to serve the NHPC. He further submits that though the training course commenced on 28.07.2022, the respondent No. 7 joined the course on 10.08.2022. He submits that even if it is assumed that the respondent No. 7 would not have the required number of 10 years to serve the NHPC, in terms of Clause 1.4 of the "NHPC Scheme of Facilities for Higher Studies", the respondent No. 7 has the alternative option to pay the amount mentioned in the said Clause for undergoing the "Training Programme". He further submits that the results of the selection process were published with the approval of the competent authority, as can be seen in Annexure-R/18 of the writ petition, i.e., Office Order dated 08.08.2022.
8. The learned counsel for the respondent Nos. 2 to 5 further submits that the extension of the date of submission of application for the Training Page No.# 6/11 Programme from 02.07.2022 to 26.07.2022 has been done with the approval of the CMD. He also submits that the selection of the respondent Nos. 7 & 8 for the "Training Programme" by the respondents had been done with the approval of the CMD, as can be seen from Office Order dated 08.08.2022 and as per the marks obtained by the candidates in the selection process.
9. I have heard the learned counsels for the parties.
10. The first issue is with regard to whether the respondent No. 7 has the eligibility criteria to participate in the selection process, in terms of Clause 1.4 of the "NHPC Scheme of Facilities for Higher Studies". Clause 1.4 provides that the candidates who participate in the selection process, on being selected to undergo the Training Programme, shall have to furnish a service agreement bond to serve NHPC for a minimum period of 10 years, from the date of completion of the course or pay the amounts mentioned in Clause 1.4.
The date of birth of the respondent No. 8 is 11.06.1974 and the date of birth of the respondent No. 7 is 18.10.1973. As the training course commenced on 28.07.2022, the 15 months training course would be completed on 28.10.2023. However, as the respondent No. 7 would retire only on 31.10.2033, the respondent No. 7 would have 10 years 3 days of service to give to the NHPC, after completion of the "Training Programme".
In any event, assuming the respondent No. 7 would not have 10 years of service to give to the NHPC, Clause 1.4 clearly provides that there is an option, to either give 10 years of service to NHPC or pay the amount fixed for the "Training Programme". As such, the stand of the petitioner, on the first count Page No.# 7/11 holds no water and thus fails.
11. With regard to the submission made by the petitioner's counsel that the results were not published and that the selection of the respondent Nos. 7 & 8 had not been made by the CMD, it would be fruitful to consider the marks secured by the 10 candidates who participated in the selection process, for selection of candidates for the "Training Programme". As per the evaluation sheet, 10 out of 11 candidates participated in the selection process. The evaluation sheet shows that out of the 10 participants, the petitioner secured the lowest marks, i.e., 58.5. The respondent Nos. 7 & 8 on the other hand, secured the highest marks. Assuming the respondent Nos. 7 & 8 could not have been selected as the successful candidates in the selection process, for whatsoever reason, there would still be 7 candidates above the petitioner, who would have to be selected and who have not been made parties to the present writ petition.
12. Annexure-R/18 of the writ petition is the Office Order dated 08.08.2022 issued by the Gr. Deputy Manager (E), which states that the respondent Nos. 7 & 8 have been selected for the "Training Programme" and that the said office order had been issued with the approval of the competent authority. Keeping in view the fact that the respondent Nos. 7 & 8 had secured highest marks in the selection process and the fact that the Office Order dated 08.08.2022 had been issued with the approval of the competent authority, this Court is of the view that no prejudice can be said to have been caused to the petitioner, in not being selected, as he had secured the lowest marks amongst all the 10 candidates who had participated in the selection process.
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13. One further ground taken by the petitioner was with regard to the extension of the last date of application by the authorities from 02.07.2022 to 26.07.2022. The petitioner's stand is that the extension had been done by the Executive Director (HRD) instead of the competent authority, which was the CMD. As such, the entire selection process was vitiated, as candidates who had submitted their applications between 02.07.2022 and 26.07.2022 could not have been allowed to participate in the selection process.
The learned counsel for the respondent Nos. 2 to 5 on the other hand, has taken a stand that the last date of extension of the application had been done on the basis of the approval given by the competent authority. The calling for the record would take time and in any event, this Court is of the view that the petitioner cannot be allowed to take such a stand in this writ petition, as the same was already in the knowledge of the petitioner in the earlier writ petition filed by him, i.e., WP(C) No. 5015/2022, wherein he had not made any challenge to the extension of the last date of submission of applications. As such, this Court is of the view that the challenge made to the extension for the last date for submission of applications is without any substance.
14. The extract of the Order dated 05.08.2022 passed in WP(C) No. 5105/2022 is reproduced below:-
"Heard Mr. UK Nair, learned senior counsel for the petitioner assisted by Mr. MP Sarma, learned counsel, who submits that the petitioner is presently posted as Manager (Civil), Technical Services, Subansiri Lower Hydro Electric Project.
The petitioner's counsel submits that the petitioner submitted his application for sponsoring candidates for 02 (Two) Executives for the 8 th Page No.# 9/11 Batch of 15 months full time residential programme in PGDM (Executive) Program of NTPC School of Business, Noida, in terms of the Circular No. NH/HRDCO/PGDM/NSB/2022-23 dated 23.06.2022, issued by the respondent No. 3. The respondent No. 3 thereafter issued the short listed applicants for online interview wherein the petitioner's name appeared at Sl. No. 1 and the date and time of interview was fixed on 20.07.2022 at 02:30 pm vide Inter Office Memorandum (IOM) dated 15.07.2022. The interview scheduled for 20.07.2022 was postponed by the respondent No. 3, vide IOM dated 19.07.2022. Thereafter, the respondent No. 3 issued Circular dated 19.07.2022, extending the date of submission of applications for 02 (Two) Executives for the 8th Batch of 15 months full time residential programme in PGDM (Executive) Program of NTPC School of Business, Noida in terms of the Circular No. NH/HRDCO/PGDM/NSB/2022-23 dated 23.06.2022, upto 26.07.2022.
The petitioner's counsel submits that the petitioner has come to learn that a new date of interview has been announced by the respondent No. 3, with a new list of candidates being called for interview through IOM dated 03.08.2022, containing a total of 10 (ten) names. However, the name of the petitioner is not amongst the 10 (ten) candidates mentioned in the IOM dated 03.08.2022.
The petitioner's counsel submits that the petitioner has submitted a representation to allow him to take part in the interview and also asked the respondents the reason as to why his name has been left out from the candidates who were short listed for participating in the interview in the IOM dated 03,08.2022. However, no reply has been forthcoming from the respondents till date.
The petitioner's counsel submits that the petitioner should be allowed to take part in the interview, as he was in Sl. No. 1 in the list of 9 (nine) candidates, that had been short listed vide IOM dated 15.07.2022.
Issue notice, returnable in 4 (four) weeks.
Ms. B Sarma, learned CGC accepts notice on behalf of respondent No.
1. Petitioner to take steps for service of notice upon respondent Nos. 2 to 4 by registered post with A/D within a period of 2 (two) days.
Page No.# 10/11 List the matter on 7th September, 2022.
On considering the fact that the petitioner was amongst the 9 (nine) candidates, who had been short listed for interview as per IOM dated
15.07.2022 (Annexure-5), it is the view of this Court that some reasonable explanation should have been given to the petitioner, for not calling the petitioner to participate in the interview, which is to be held on 06.08.2022.
Accordingly, in the interim, the respondents are directed to allow the petitioner to participate in the interview for sponsorship of 02 (Two) Executives for the 8th Batch of 15 months full time residential programme in PGDM (Executive) Program of NTPC School of Business, Noida on 06.08.2022. The petitioner is given the liberty to give a downloaded copy of this order by tomorrow (06.08.2022) to the respondents and a certified copy of this order by Monday (08.08.2022)".
15. In any event, this Court is of the view that no prejudice is caused to the petitioner by the extension of the last date for submission of application from candidates, from 02.07.2022 to 26.07.2022. Further, even if this Court were to hold that applicants who had submitted their applications subsequent to 02.07.2022 could not participate in the selection process, the fact remains that as per Annexure-R/17, which is the evaluation sheet, 6 persons would have been allowed to participate in the selection process including the petitioner. However, the petitioner's marks, out of the 6 persons, is still the lowest and as such, the petitioner could not have been selected in any event. Further, as held by the Apex Court in Ramesh Chandra Shah & Ors. Vs. Anil Joshi & Ors., reported in 2013 11 SCC 309, a person who consciously takes part in the process of selection, cannot thereafter, turn around and question the method of selection and it's outcome.
16. In view of the reasons stated above, this Court finds there is no merit in the writ petition.
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17. The writ petition is accordingly dismissed.
JUDGE Comparing Assistant