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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. 2.4. Based on the aforesaid amendments, the Respondents issued another Circular dated 29.08.2012 inviting fresh applications and in response to the same many others have applied. The Applicants who have already applied in response to the earlier circular dated 28.11.2009 were told not to apply again. As the selection process in his case was completed in the year 2010 and the result of the selected candidates were not declared, they 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 issued order dated 07.11.2012 informing them that their applications were forwarded to the Screening Committee constituted by the Competent Authority in NHAI for scrutiny along with other applications and the Screening Committee considered their applications and again found eligible. Accordingly, their names were recommended to the Selection Committee for the final selection but Selection Committee has not recommended their candidatures considering their performance during their 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:-

2.7. In the reply affidavit, the Respondent-NHAI have submitted that a deputationist has no right for 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 and the applicants were duly considered by a high powered selection committee on a criteria uniformly applicable to all. They have also submitted that it is a well settled that the courts do not act as a selection bodies and substitute their own opinion in place of the opinion of the expert bodies. They have also stated that that it was wrong to say that the statutory regulations were sought to be amended by administrative order whereas the regulations were framed by virtue of power derived from section 35 of NHAI Act, 1958. They have denied the Applicants contention that two selection process  one of 2009 and other of 2012 were clubbed together but the fact was that the process initiated in 2009 was not taken to its logical end on account of variety of reasons including non-availability of No Objection Certificate from the parent departments. They have also stated that just because there were 300 applications and the screening committee has shortlisted 121 candidates including the applicants who were interviewed, they had no vested right for any declaration of the results of interview and for an order of absorption in their favour. On the other hand, it was open to the respondents to stop the selection process before a candidate was actually absorbed and no candidate can compel the Employer to complete the process merely on the ground that the selection process had reached an advanced stage. They have also stated that that 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 only be considered for absorption so that the absorbees will have sufficient service left to be of use to the organization. Their further contention was that they have 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 that purpose.

(c) By an appropriate order or direction, the respondents may kindly be restrained from repatriating the applicant in the parent department i.e. respondent no.1.
(d) By an appropriate order or direction, the respondents may kindly be directed to absorb the applicant on the post of Manager (Technical) in pursuance of the Regulations of 1996 and further amendments.
(e) By an appropriate order or direction, while considering the applicant for Manager (Technical) as per the absorption process initiated on 28.11.2009, the respondents may be directed to complete the absorption process as per the then regulations and further amendments of doing away with the advertisement, screening committee and interview may not be made applicable upon the absorption process upon the applicant and also the letter dated 29.8.2012 of the Chairman may also be ignored for completing the selection process.

8. He has further submitted that, admittedly, in 2012 selection also, there was no requirement of Outstanding ACRs and various individuals were absorbed with Very Good ACRs. The fact that cannot be ignored again is that the performance of the Applicants were satisfactory and hence, their deputation periods were extended for from time to time. He has also pointed out that this Tribunal, vide order dated 28.04.2014, directed the Respondents to delink the selection process and complete the earlier selection process initiated in pursuance to the office memorandum dated 28.11.2009 but the Respondents adopted the new criteria of average of the Outstanding gradings in the ACRs which is not apt in law. At the same time, in respect of various other persons, the average of Very Good gradings in the ACRs has been considered and they have been absorbed. There was also a finding of fact that the selection process of the year 2009 was complete in all respects but absorption letter could not be issued for want of NOC in some cases but the Respondents ignored that fact and conducted the new selection. Further according to the learned counsel for the Applicant, the Respondent-NHAI was supposed to recruit 25% (120 nos.) of posts in 2010, 15% (17 nos.) of in 2011 and 10% (48 nos.) of posts in 2012 to the permanent cadre as per the original programme. But they have selected only 69 nos. of posts up to 2012 and about 100 nos. posts of Manager (T) on direct recruitment basis.