Central Administrative Tribunal Principal Bench, New Delhi. OA-2683/2013 MA-2391/2013 Reserved on : 30.10.2013. Pronounced on :06.11.2013. Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Sh. Ashok Kumar Gupta, S/o Sh. J.N. Gupta, R/o B-330, Dharam Vihar Apartments, Plot No.2, Sector-10, Dwarka, New Delhi-75. . Applicant (through Sh. S.K. Gupta, Advocate) Versus 1. National Highways Authority of India, Plot No. G-5 & G-6, Sector-10, Dwarka, New Delhi-75. 2. Sh. M.P.S. Rana, General Manager (Tech.), National Highways Authority of India, Plot No. G-5 & G-6, Sector-10, Dwarka, New Delhi-75. . Respondents (through Sh. P.P. Khurana, Sr. Advocate with Sh. Mukesh Kumar, Advocate and with Ms. Nisha Srivastava, DGM(HR-III) NHAI, Departmental Representative) O R D E R
Mr. Shekhar Agarwal, Member (A) Following relief has been sought in this case:-
(a) Call for the original file(s)/record(s) of the respondents dealing with the appointment of the applicant in the post of Deputy General manager (Tech), consideration for his absorption/continuation and also the file dealing with the appointment in the grade of Deputy General Manager (Tech);
(b) Declare Office Order No. NHAI/Tech/OR/Misc/2013 dated 29.07.2013 (Annexure-A Impugned) and Office Order No.NHAI/Tech/OR/Misc/2013 dated 29.7.2013 (Annexure-A-1 Impugned) as illegal, arbitrary and discriminatory and consequently quash the same;
(c) Declare the action of the respondents in not absorbing the applicant in the post of Deputy General Manager (Technical) in spite of his fulfilling the eligibility criteria therefor and his case strongly recommended by his controlling officer;
(d) Declare that the applicant is entitled for absorption under the respondents in the post of Deputy General Manager (Technical) with all consequential benefits.
(e) Award cost of this application and proceedings against the Respondents and favour of the applicant.
(f) May also pass further order(s) as be deemed just and proper to meet the ends of justice.
2. Brief facts of the case are that the applicant was an officer of Public Works Department of Rajasthan where he had joined as Assistant Engineer on 26.09.1991. He got promoted to the post of Executive Engineer in February, 2007. In March-April, 2007 he applied for the post of Dy. General Manager (DGM) (Tech.) on deputation basis under the respondents. On being found eligible the applicant was appointed as DGM (Tech.) on 30.04.2007. The applicant had also applied for appointment as DGM (Tech.) through lateral entry in 2008 as well in response to a Circular issued by the respondents. However, the said selection process according to the applicant was never completed and the respondents did not disclose any reasons for the same. The contention of the applicant is that he has been discharging his duties to the best of his abilities and to the entire satisfaction of his superiors. In May, 2012 he had even got an appreciation letter from the Chairman, NHAI which is available in the paper-book as Annexure A-16. In November, 2012 the respondents invited applications from suitable officers of the rank of DGM working on deputation and willing to get absorbed in NHAI. The applicant applied for the same but came to know in April, 2013 that his case has not been recommended for absorption by the Screening Committee. Thereafter, the respondents again invited applications vide their Circular dated 18.04.2013 from the officers of DGM rank working on deputation with NHAI for absorption therein. The applicant again applied for the same but came to know in July, 2013 that he has again not been selected for absorption. Meanwhile, the respondents vide letter dated 10.04.2013 declined extending the deputation period of the applicant. At the same time, the parent department of the applicant i.e. PWD Rajasthan was also pressing for repatriation of all the officers who were on deputation to NHAI and who had completed 4 years or more on deputation. In these circumstances, the applicant was relieved from NHAI with immediate effect vide order dated 29.07.2013. He was sanctioned two months leave w.e.f. that date and also given one months salary on our directions given in this O.A. on 21.08.2013 while considering the applicants prayer for grant of interim relief. The applicant is aggrieved by rejection of his case for absorption in NHAI by the Selection Committee and has challenged the same by means of this O.A.
3. The contention of the applicant is that the respondents have not considered the case of the applicant for his absorption in NHAI in a just and fair manner. According to him, the orders of the respondents are in violation of Articles 14, 16 and 21 of the Constitution and against the principles of legitimate expectation. His contention is that his claim is squarely covered by the order of this Tribunal dated 29.10.2007 in TA-4/2007 (G. SureshVs. NHAI). He has also relied on the ruling of Honble Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi, 2006(4) SCC 1 to say that the Honble Supreme Court had ruled that there were many cases where irregular appointments have been made and have continued for considerable period of 10 years or more and in which instrumentalities had been directed to take steps to regularize the services of such irregularly appointed employees as a one time measure. The applicant has further stated that it is a settled law that fairness in procedure is a binding principle of natural justice. Relying on the judgment of Honble Supreme Court in the case of Rameshwar Prasad Vs. Managing Director, UP Rajkiya Nirman Nigam Limited & Ors., JT 1999(7) SC 44, learned counsel for the applicant stated that in Para-17 of this judgment, the following has been held:-
17. In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. Respondent No. 1 cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at whim or caprice of any individual On the basis of above submissions the applicant has prayed for grant of relief asked for.
4. In their reply without disputing the basic facts regarding appointment of the applicant as DGM on deputation basis and inviting applications for consideration of absorption of deputationists in NHAI, the respondents have stated that the Selection Committee Meeting for consideration of those applicants who had applied in response to Circular dated 01.11.2012 was first held on 27.11.2012. Subsequently, further meetings of the same Committee were held on 21.03.2013 and 25.03.2013. The applicant was duly considered by the Selection Committee but the Committee did not find the applicant suitable for absorption in NHAI on the ground of non-satisfactory assessment report from the controlling officer. Thereafter, another Selection Committee Meeting was held on 23.07.2013 to consider cases of those who had applied for absorption in response to Circular dated 18.04.2013. In that Meeting the Selection Committee decided not to consider cases of those candidates who had been recently considered in their meeting held on 25.03.2013 on the grounds that only 4 months had passed since that meeting and this period was too short for reassessment of the officer. Since the applicant was not found fit for absorption and since his deputation tenure had also not been extended, he was repatriated to his parent department vide order dated 29.07.2013. The respondents have stated that the case of the applicant for absorption has got fair consideration and there was no reason to accede to his prayer.
5. We have considered the submissions made by both sides. Alongwith his rejoinder, the applicant has filed minutes of the Selection Committee held on 27.11.2012 and subsequently on 21.03.2013 and 25.03.2013 to consider cases of those DGMs who had applied for absorption in response to the circular dated 26.11.2012. A copy of these minutes is available on pages 242-245 of the paper-book. The applicant has stated in his rejoinder that he has obtained this information by means of RTI application. From the minutes of this Committee Meeting it is found that the Selection Committee evolved the following criteria for considering candidates for absorption in NHAI:-
Selection Criteria ACR (Average of last 5 years/ACRs available) Assessment of RO/CGM General 10 years (not born before 01.01.1962) Outstanding/Very Good Outstanding/Strongly Recommended Note: the candidates with average ACRs rating as Outstanding and Assessment of RO/CGM as Very Good/Recommended also considered suitable. Similarly, the candidates with RO/CGM assessment as Strongly Recommended/Outstanding and average ACR rating as Very Good also considered suitable, provided none of the ACRs are below Good.
From this, it appears that besides vigilance clearance and other eligibility criteria the Selection Committee looked at the ACRs of the last 5 years of the officers as well as at recommendation from the RO/CGM of the concerned officer. The criteria evolved was that the average rating of the ACRs should be outstanding and the concerned RO and CGM should also recommend absorption of the officer being considered. However, those candidates who had average ACR ratings as Very Good could also be considered suitable provided none of their ACRs was duly Good and RO/CGM had strongly recommended their absorption. It is noticed from the minutes that 10 candidates were so selected but the applicants name did not figure in this list. Since the respondents have stated in their reply that the applicant has been duly considered in this Committee Meeting, the implication is that the applicant did not meet the criterion laid down by the Selection Committee.
5.1 On pages 247-250 of the paper-book the applicant has made available copy of the Minutes of the Selection Committee Meeting held on 27.06.2013 and subsequently on 23.07.2013 to consider cases of those who had applied for absorption in NHAI on the basis of circular issued on 18.04.2013. The criteria adopted by the Selection Committee is given in Para-5 of the Minutes on page-248 of the paper-book. From this it appears that this criteria was the same as had been adopted in the earlier Selection Committee Meetings. In Para-10 of the Minutes the following is recorded:-
10. The Selection Committee did not recommend the following candidates due to reasons mentioned below:-
(a) sh. A.K. Gupta & Sh. S.K. Gupta were both considered by the Selection Committee in its meeting held on 25.03.2013 and based on the assessment of the ROs/Controlling Officers, ACRs & Vigilance status, they were not found fit for absorption. The Committee noted that as barely 4 months have passed to the last Selection Committee Meeting, it is too short a period for re-assessment. Therefore, both these officers cant be recommended for absorption.
(b) From this it appears that the applicant was not reassessed by the Selection Committee on the grounds that barely 4 months have passed since the latest Selection Committee Meeting was held in which the applicant had not been found fit for absorption and therefore the Committee felt that the period is too short for reassessment. The Committee, therefore, declined to recommend the applicant for absorption. On page-246 of the paper-book the applicant has also made available a copy of the chart which was purportedly presented before the Selection Committee and which the applicant claims that he has obtained through RTI. In this chart the following is recorded in respect of the applicant:-
SNo. Name of the officer Date of Birth Category Date of joining as DGM(Tech) Place of Posting Parent Department Educational Qualification Residual service as on 01.01.2013 No. of years served on deputation as DGM(Tech) till 01.01.2013
7. Ashok Kumar Gupta 16.08.1966 Gen 09.05.2007 Orissa Div.HQ PWD,Rajasthan B.E(Civil)&M.E (CAD in Civil Engineering) 13 years & 8 months 5 years & 8 months ACRs status in respect of Sh. A.K. Gupta Average of ACRs 2008-09 2009-10 2010-11 2011-12 2012-13 VG OS & VG VG VG VG VG Assessment Report Vigilance Status Sh. Ashok Kumar Gupta is working in Technical Division(Odisha) since November, 2009 and looking after the following works under implementation on BOT (Toll) basis:
a)4-laning of Panikolli-Rimuli Section of NH-215
b) 4/2-laning of Rimuli Roxy Rajamundary Section of NH-215.
c) 4-laning of Sambalpur Bargarh-Odisha/Chattisgarh Section of NH-6
d) 4/2 laning of Birmitrapur Barkote Section of NH-23.
His absorption in NHAI is strongly recommended xxxxxx *The officer was considered by the Selection Committee in its meeting held on 25.03.2012 and based on the Assessment of the RO,ACR & Vigilance status, he was not found fit for absorption.
From this chart, we find that the Average of ACRs of the applicant for last 5 years has been found to be Very Good. In the assessment report given by his RO/CGM his absorption in NHAI has been strongly recommended. Thus, prima facie, he appears to meet the criteria laid down. We, therefore, proceed to find out as to why the applicant had been rejected in both the Selection Committee Meetings. In this regard, the applicants counsel fairly submitted that the applicant has come to know that at the time of first Selection Committee Meeting held on 25.03.2013 his RO/CJM had only recommended him for absorption in NHAI and had not strongly recommended. He, therefore, did not meet the criteria laid down by the Selection Committee, namely, if the average of ACRs was Very Good then the candidate would be adjudged suitable for absorption only if his RO/CJM had strongly recommended his absorption. Learned counsel for the applicant further submitted that by the time the second Selection Committee Meeting, his RO/CJM had changed their recommendation to strongly recommended. Therefore, in the second Selection he had become eligible for absorption. The respondents counsel had vehemently disputed saying that the Minutes of the Selection Committee do not indicate what the applicants counsel is contending. However, we find that in their own affidavit the respondents have stated that the applicant was not selected in the selection held on 21.03.2013 and 25.03.2013 because of non- satisfactory report from his controlling officer. Moreover, if the contention of the respondents counsel is accepted and the record of the applicant was the same as mentioned in the information obtained through RTI, prima facie, there would appear to be no reason for denial of absorption to him by the Selection Committee held on 21.03.2013 and 25.03.2013 as he appears to meet the criteria laid down, namely, average ACR rating as very good and RO/CGM recommendation as strongly recommended. Since it is not possible for the ACR ratings of the 5 years to have changed during this 4 months period, the obvious conclusion is that the RO/CGM earlier rating was not as strongly recommended. Therefore, we are inclined to agree with the contention of the applicants counsel.
5.2 However, we notice from the Minutes of the Selection Committee that the Selection Committee does not reassess the applicant on the grounds that he had been assessed and found to be unfit only 4 months back. Learned counsel for the respondents stated that this stand of the Selection Committee was perfectly justified since no purpose would have been served by reassessing officers as nothing new was available in their record.
5.3 However, we find that the record of the applicant had under-gone a material change because the recommendation of his RO/CJM had changed from recommended to strongly recommended but the Selection Committee failed to take this into account.
5.4 Learned counsel for the respondents at this point had made available to us copy of the Office Memorandum No. 22034/3/2007-Estt(D) dated 11.04.2007 by which the directions of Honble Supreme Court in the Appeal (Civil) 689/2007 (arising out of SLP(C) No.2410/2007 in the matter of UOI & Anr. Vs. S.K. Goel & Ors.) have been circulated. The Honble Supreme Court has held that DPC enjoy full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it and interference by the High Court is not called for. On the basis of this Circular, learned counsel for the respondents argued that Courts should refrain from interfering in the decisions of the DPCs/Selection Committee. In this regard, we make it clear that while we have no intention to substitute our judgment for the assessment made by DPC, we feel that is the duty of the Courts to see whether the cases of the officers have been considered in accordance with the laid down procedure and in consonance with the principles of natural justice. In our opinion, if we do so we would not be in any manner violating the aforesaid directions of the Honble Supreme Court.
5.5 From the above, analysis, we find that when the Selection Committee held on 27.06.2013 and 23.07.2013 had declined to reassess the applicant on the ground that he had been assessed just 4 months earlier and had been adjudged unfit for absorption, they have completely ignored the fact that there had been material change in the record of the applicant inasmuch as the recommendation of his RO/CJM had changed from recommended to strongly recommended. Had this been taken into account the Selection Committee would have proceeded to reassess the applicant. Therefore, in our opinion, the applicant has not got a fair consideration of his case at the hands of the Selection Committee and he is entitled to a review of the same.
5.6 Learned counsel for the respondents had argued that the applicant had already been repatriated to his parent department because he had been relieved from NHAI on 29.07.2013, his no-due certificate had been issued and his 60 days leave period had also expired on 29.10.2013. Under such circumstances, the case of the applicant cannot be considered afresh as for doing so fresh concurrence of his parent department i.e PWD, Rajasthan would be necessary but that department is not a party in this case. In our considered opinion, this contention of the respondents counsel cannot be accepted. If we direct review of the case of the applicant it would imply that review Selection Committee Meeting be held to review the decision taken by the Selection Committee Meeting held on 27.06.2013 and 23.07.2013. The status of the applicant as on that date will have to be considered. On that date admittedly the applicant was working with NHAI on deputation and was eligible to be considered by the Selection Committee.
6. We, therefore, come to the conclusion that there is merit in the contention of the applicant. Accordingly,O.A. succeeds. We direct the respondents to hold a review Selection Committee Meeting to review the decision of Selection Committee held on 27.06.2013/23.07.2013 qua the applicant and consider his case for absorption as DGM (Tech.) afresh in the light of the observations made above. This will be done within a period of four weeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/