Delhi High Court
National Highways Authority Of ... vs Rajesh Gupta & Ors. on 3 July, 2009
Author: A.K.Sikri
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 617 of 2009
% Reserved on : April 16, 2009
Pronounced on : July 03, 2009
National Highways Authority of India . . . Petitioner
through : Mr. B. Datta, Addl. Solicitor
General with Mr. Jos Chiramel,
Advocate
VERSUS
Rajesh Gupta & Ors. . . . Respondents
through : Mr. Nidhesh Gupta, Sr. Adv.
with Mr. Vikram Saini, Advocate
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. Rajesh Gupta, respondent No.1 in this writ petition, was the
applicant in OA No. 572/2008, whereby he had challenged the
promotions made by the National Highway Authority of India (for
short „NHAI‟), to the post of Deputy General Manager (Finance and
Accounts). He was also considered, but was not recommended for
promotion, whereas respondent Nos. 2 to 8 got promotion on the
recommendation of the Selection Committee. Though he challenged
the selection process on various grounds, fundamental objection
raised by him was that the Selection Committee was improperly
constituted as provisions of Regulation 11(3) of the NHAI
(Recruitment, Seniority and Promotion) Regulations, 1996
(hereinafter referred to as „Regulations‟) were not adhered to while
constituting the Selection Committee for the aforesaid post, which
falls in the category of Group-A post. The Tribunal has accepted his
challenge and vide judgment dated 29.9.2008 set aside the
recommendation of the Selection Committee and consequently the
appointments made pursuant thereto are held as null and void. As
the petitioner/NHAI feels aggrieved by that judgment, the present
writ petition is preferred impugning the same.
2. Facts, in brief, which had given rise to the filing of the aforesaid OA
by the respondent No.1 need to be recapitulated in the first instance.
3. The respondent No.1 joined NHAI as Manager (Finance & Accounts)
in the year 1999. It was an open selection based on the
recommendation of the Selection Committee in its meeting held on
12.3.1999 and 13.3.1999, which considered the candidature of all
those who applied for the said post pursuant to advertisement dated
19.11.1998.
4. In the year 2004, advertisement was issued by the NHAI for various
posts, including DGM (Finance & Accounts) to be filled by way of
promotion/direct recruitment/deputation. Respondent No.1, with
four years‟ service as Manager (Finance & Accounts), was also eligible
for consideration to the aforesaid post by way of promotion. He,
thus, applied for this post. Total number of applications received
were 37, which were scrutinized by the Selection Committee.
Thereafter, Selection Committee held its meeting on 3.9.2004 to
consider the candidature of those applicants. It recommended the
panel of four candidates who had secured 80% marks or above, for
appointment to the said post of DGM (F&A). Respondent No.1 was
not in the said panel as he had secured only 72% marks and was
placed at S.No. 6 in the list. The respondent No.1 made
representation dated 16.11.2004 seeking review of his non-selection,
which was turned down by the Competent Authority vide letter
dated 25.1.2005. In the meantime, the Central Vigilance
Commission, vide its letter dated 27.12.2004, advised NHAI to
initiate penalty proceedings against the respondent No.1 with regard
to excess payment to one M/s. Frank Advertisers. Show-cause notice
was issued to the respondent No.1 and after eliciting his reply, as it
was not found satisfactory, minor penalty of reprimand was imposed
upon him by the Disciplinary Authority vide orders dated
23/24.06.2005. Another show-cause notice was issued thereafter,
which resulted in warning letter dated 12.9.2005 advising him to be
more careful in the discharge of his duties.
5. Two more posts of DGM (F&A) were advertised on 28.9.2005. Ten
candidates were found eligible for consideration, including the
respondent No.1 who had also applied for this post. The Selection
Committee, which held its meeting on 21.11.2006 to consider those
candidates, recommended three candidates for appointment who
had obtained 75% marks or more. Name of the respondent No.1
was at S.No. 4 as he had obtained only 50 marks out of 100. He
made representation dated 2.1.2007 for reviewing his non-selection,
which was turned down vide letter dated 24.1.2007 on the ground
that Selection Committee(s) had not recommended him for
promotion.
6. On 25.11.2006, another advertisement was issued for various posts,
including two posts of DGM (F&A) on deputation basis and were
filled up. He represented against this advertisement vide
representation dated 24.2.2007 questioning the mode of selection
on deputation basis. This representation was also turned down on
5.6.2007. Thereafter Selection Committee meeting was held on
8.6.2007 and two candidates for appointment on deputation basis
were recommended.
7. Few months thereafter, i.e. on 19.2.2008, the respondent No.1
approached the Tribunal and filed OA under Section 19 of the
Administrative Tribunal Act, 1985 which has been allowed vide
impugned judgment dated 29.9.2008, as already noted above. The
Tribunal has quashed and set aside the selections as per the
recommendations of the Selection Committees dated 3.9.2004,
21.11.2006 and 8.6.2007 on the ground that the Selection
Committees were not properly constituted.
8. DGM (F&A) is Group-A post and the Selection Committee to be
constituted for such post is regulated by Regulation 11(3) of the
Regulations, 1996 which reads as under :-
"In the case of selection of candidates to a Group "A" post, the
Chairman shall be Presiding Officer thereof and the Member
(Admn.), the Director General (Road Development) or the
Assistant Director General nominated by him and another
Member of the Authority nominated by the Chairman shall be
its members."
9. As per the aforesaid provision, apart from the Chairman as Presiding
Officer, the Selection Committee is to consist of the following
members :-
(i) Member (Administration)
(ii) Director General (Road Development) or Assistant Director
General nominated by him
(iii) Member of the NHAI nominated by the Chairman.
However, in the Selection Committees, Chief Engineer was
included as a representative of the Director General (Road
Development).
10. The grievance of the respondent No.1 was that the Chief Engineer
could not have been included on the ground that DG (RD) could
nominate an Assistant Director General only. Respondent No.1 had
also laid challenge to the proceedings of the Selection Committee
held on 21.11.2006 on the ground that Mr. P. Sudheer Kumar, CCA
had also signed those minutes though he was not eligible to be on
the Committee Panel as per Rules and there was no verification
provided by the NHAI as to in what capacity he was co-opted in the
Selection Committee contrary to the statutory regulations. Another
irregularity/illegality which, according to the respondent No.1,
cropped in was that one Dr. Satyanarayan Dash, who was Member
(Finance) has signed the minutes dated 21.11.2006 though he was not
actually present at the Selection Committee meeting. Further,
General Manager (Finance), who was one of the members of the
Selection Committee, had not signed those minutes.
11. The Selection was also challenged on various other grounds which
are noted by the learned Tribunal. However, we find from the
judgment that main focus of the Tribunal remained on the issue as to
whether the Selection Committee was properly constituted or not
and the proceedings of the Selection Committees are primarily
quashed on this ground on finding them to be improperly
constituted.
12. Mr. B. Datta, learned Additional Solicitor General of India, appearing
for NHAI, made a scathing criticism of the impugned judgment on
the ground that various aspects argued by the petitioner justifying the
proceedings of the Selection Committee were not properly
appreciated in their true perspective and a very myopic approach
was adopted by the Tribunal while dealing with the entire matter.
His submission in respect of the following grounds on which
selections are set aside are taken note of as under, while dealing with
the same simultaneously :-
(i) Selection Committee not constituted as per Regulation 11(3).
(ii) Dr. Dash, Member, was not present in the Selection Committee
meeting held on 21.11.2006 and instead it was attended by the
General Manager (Finance).
13. Submission of Mr. Datta was that following defence was raised by
the NHAI before the Tribunal :-
(i) The Chief Engineer who was the nominee of DG (RD) was of
the Joint Secretary level, much above DGM (Finance);
(ii) There was no post of DG (RD) in the year 2004 and the post
of ADG (RD) was unavailable; and
(iii) Dr. Dash was actually present and he has appended his
signatures to the minutes.
His argued that the Tribunal‟s finding against the constitution
of the Selection Committee is not legal or valid, as (a) there was no
DG (RD) in the year 2004, (b) there was no post of Assistant DG
(RD), and (c) the Chief Engineer was much higher in grade than
Assistant DG (RD), which contentions of the petitioner, though
referred to in the judgment, have not been considered by the
Tribunal. Further, DG (RD) is an officer of the Central Government
and NHAI is bound by the directions of the Central Government
under Section 33 of the NHAI Act and as per Section 8(c) of the
NHAI Act, even if there was any irregularity, which is otherwise
denied, provided that the action is bona fide and without affecting
the merits of the case, cannot be challenged. He submitted that it is
also noteworthy that as per Regulation 12(2), the Selection
Committee is only a recommending body, and as per Regulation
11(3) the Chairman of NHAI who is the appointing authority being
the Chairperson of the Selection Committee, the Committee cannot
be above the Chairman. In any case, the constitution of the
Committee was in uniform manner including in the case of the initial
appointment of the respondent No.1 as Manager (Finance &
Accounts) and he cannot have a grievance in this regard, as he is not
prejudicially affected.
14. From the aforesaid argument of learned counsel for the NHAI, it is
clear that there is an acceptance of the fact that the Selection
Committee was not constituted in accordance with the requirements
stipulated in Regulation 11(3) of the Regulations. In fact, even in
para 5 of the impugned judgment it was conceded before the
Tribunal also that so far as constitution of the Selection Committee is
concerned, that was not as per the aforesaid regulations. However,
NHAI is trying to provide the justification for not doing so.
15. As noted above, as per Regulation 11(3), one of the Members in the
Selection Committee should have been DG (RD) or ADG nominated
by him. NHAI claims that there was no DG (RD) in the year 2004.
This, according to the respondent No.1, is a false stand taken as it is
factually incorrect that the post of DG (RD) was lying vacant in the
year 2004. In respect of this, Mr. Nidhesh Gupta, learned senior
counsel appearing for the respondent No.1 drew our attention to the
following office orders :-
(a) Office Order No. 5/2004 dated 30.1.2004 as per which one
Shri Indu Prakash, Chief Engineer, was appointed as DG (RD)
and Special Secretary in the Ministry of Road Transport and
Highways on ad-hoc basis for a period of three months.
(b) Order dated 20.10.2004, which is a relieving order of Shri Indu
Prakash, Chief Engineer, in the Ministry of Shipping, Road
Transport and Highways because of his "currently officiating as
DG (RD) and Special Secretary on ad-hoc basis".
(c) Office Order No. 87/2004 dated 29.12.2004 whereby Shri
Indu Prakash, while working as Member (Technical) in NHAI
was given additional charge of the post of DG (RD) till
26.1.2005 or until further orders, whichever event occurs
earlier.
16. Learned counsel for the petitioner NHAI could not controvert the
veracity of the aforesaid office orders which show that Mr. Indu
Prakash came as DG (RD) on deputation to NHAI in January 2004
and remained in this capacity in the entire year, at least. Therefore,
when DG (RD) was available, the justification for including another
Chief Engineer is not tenable. The justification that NHAI is bound
by the directions of the Central Government under Section 33 of the
NHAI Act is of no consequence as it was the duty of the NHAI to
point out to the Central Government that nomination of the Chief
Engineer was not in accordance with Regulation 11(3). Section 33
stipulates that the NHAI "shall in the discharge of its functions and
duties under this Act, be bound by such directions on questions of
policy....". It is only in matters concerning the policy that the NHAI
is bound and not on other matters. In any case, the petitioner is
bound to follow statutory provisions. Further, matters concerning
recruitment etc. are provided in self contained Regulations of 1996.
It was urged that the proceedings of the petitioner will not be
invalidated on account of the Selection Committee not being
properly constituted. Reliance was placed on Section 8(c). The said
proposition is incorrect since Section 8(c) of the Act provides that any
irregularity in the procedure adopted by the petitioner which does
not affect the merits of the case, will not be invalidated for the said
reason. It is submitted that the said provision concerns the
petitioner. The Authority is defined in Section 3(3). The merits of
the case have also been affected. Therefore, the said Section 8 does
not help the case of the petitioner as it has no application at all.
17. Merely because the Selection Committee is a recommendatory body
and the Chairman is the appointment authority, would not offer a
valid explanation for not constituting the said recommendatory
body, i.e. the Selection Committee in accordance with the statutory
rules. Likewise, the NHAI cannot plead estoppel on the ground that
similar Selection Committee was constituted when the respondent
No.1 was appointed as Manager (Finance & Accounts). The inclusion
of Chief Engineer as the representative of DG (RD) and Special
Secretary to the Minister of State, Road Transport and Highways was
also sought to be justified on the ground that the Chief Engineer was
of Joint Secretary level and, thus, higher in rank than DGM (F&A). It
was also pointed out that the post of DG (RD) had been lying vacant
and there was no incumbent upon the said post and, therefore, the
Director General or his nominee could not be taken in the Selection
Committee because of their non-availability. The Tribunal,
however, did not buy this argument and rejected the same in the
following manner :-
"4. It is note worthy that our attention has not been drawn
to any material on record in support of the contention that
authorization by DG (RD) of a senior officer other than ADG
(RD) is provided for by the statutory regulations in that regard.
Nor is it the respondents case that the regulations envisage
inclusion on the Selection Committee of the other persons as
well, outside the provisions of regulation 11(3).
5. The learned counsel for the respondents has described
the background in which selections were being held in NHAI,
which has an important mandate for development of the
infrastructure facility in the country and good progress on the
task of 4/6 laning of Highways is expected from it, being in the
public eye. Many selections have taken place over time and in
view of the need to uphold standards, certain practices have
come to be followed in keeping with propriety and good faith
to discharge the work and responsibilities entrusted to NHAI in
furtherance of its objectives. It is, however, fairly conceded
that it may not be possible to successfully defend the
constitution of the Selection Committees under challenge in the
light of the regulations referred to."
18. In para 7, this legal position is supported with the aid of two
judgments of the Supreme Court in the cases of Sardara Singh and
Ors. v. State of Punjab & Ors., AIR 1991 SC 2248 and Ashok Kumar
Sankar v. Union of India & Ors., (2007) 4 SCC 54.
It is, thus, clear that the Selection Committee was not
constituted in accordance with Regulation 11(3) of the Regulations.
19. Another argument of the respondent No.1 before the Tribunal was
that Regulations lay down an eligibility requirement of experience of
at least 12 years service in a responsible position in the
Finance/Accounts Department related to major infrastructural project
of the Government of India or a Government undertaking or an
autonomous body or a commercial organization of repute, for the
post of DGM (F&A). However, 3 out of 4 candidates who were
selected by the Selection Committee on 3.9.2004 did not meet this
requirement. The petitioner had countered this argument on the
ground that the aforesaid requirement was relaxed even in the case
of the respondent No.1 himself when he was inducted in NHAI as
Manager (F&A). This has been followed keeping in view of non-
availability of candidates over the years with such experience of
major infrastructural projects. The Tribunal refused to accept this
kind of justification put forthwith by the NHAI on the premise that
the requirements of statutory rules and regulations spelling out
eligibility conditions for recruitment could not be overcome in this
manner. It was found that Regulation 6(1) of the Regulations, which
contains provisions for relaxation limits the power only to relax
upper age limit and there was no other power of relaxation in
general or specific especially in respect of the eligibility conditions of
experience. Taking note of the principle laid down in the case of
Secretary, A.P. Public Service Commission v. B. Swapna & Ors.,
(2005) 4 SCC 154 and Shainda Hasan v. State of Uttar Pradesh &
Ors., (1990) 3 SCC 48, the Tribunal pointed out that the Selection
Committee was not justified in relaxing the qualifications and
experience in favour of a candidate without reserving that right to
itself in the advertisement.
20. Insofar as this finding of the Tribunal that the Selection Committee
had no power to relax the eligibility condition qua experience, Mr.
Datta submitted that considering the mandate of NHAI for
development of infrastructure, certain practices have come to be
followed in keeping with propriety and good faith in discharge of
the work of NHAI and even in the case of respondent No.1 when he
applied for the post of Manager (Finance & Accounts) such criterion
was relaxed keeping in mind non-availability over the years of
candidates with such experience of major infrastructural projects. He
argued that the Tribunal‟s finding against the relaxation of experience
in infrastructure related work is also not legal or valid, as in the
absence of such relaxation there would not have been eligible
candidates for the post and, therefore, there was uniform relaxation
in all cases. There was similar relaxation in the case of respondent
No.1 as well at the initial appointment of respondent No.1 as
Manager (Finance & Accounts) and having taken advantage of the
same, he cannot set a different set of standards for other candidates
so as to gain unfair advantage in the matter of selection to the
promotion post, and he is not prejudicially affected, whereas only a
person who had the requisite infrastructural experience could be
aggrieved by such relaxation and not respondent No.1 who did not
have the same.
21. Again, it is accepted that the selected candidates did not fulfil the
prescribed qualification, namely, 12 years of experience in major
infrastructural projects. This is an essential qualification, as is clear
from the relevant provision in the regulation which provides
following educational and other qualifications for the post of DGM
and reads as under :-
"Educational Qualification
Essential :
(i) Degree of a recognized University,
(ii) Professional qualification such as :-
(a) Final exam of the Institute of Chartered Accountants of
India or
(b) Final exam of the Institute of Cost and Works
Accountant of India
OR
(c) Degree in Business Management with Finance as the
major subject
OR
(iii) Member of any organized Accounts Service of the
Central Government.
Experience
At least 12 years service in a responsible position in the
finance/accounts Deptt. related to major infrastructural project
of the Govt. of India or a Govt. Undertaking or an
Autonomous Body or a Commercial Organisation of repute.
Desirable
Should be well versed with the Financial Rules and Accounting
procedures to be followed for major projects in particular;
approval of tenders, processing of contractor‟s claims and
other contractual matters."
22. Qualifications are classified in two categories, namely, essential and
desirable. Insofar as experience of 12 years of service is concerned, it
is an essential qualification. The provision for relaxation, on which
reliance is placed is Regulation 6 of the Regulations and reads as
under :-
"6. Relaxation - (1) The upper age limit specified in column
6 of the Schedule may be relaxed, in the case of officers and
employees by the Chairman upto a maximum of three years,
where the minimum experience specified in column 7 of the
said Schedule is 10 years or more and upto a maximum of two
years where the minimum experience specified in column 7 is 5
to 9 years."
This permits giving relaxation in the upper age limit under
certain circumstances. Thus, there is no provision empowering any
of the authorities in NHAI, including the Selection Committee, to
relax the essential conditions of qualifications and experience. Once
we proceed on this factual premise, legal consequence which would
follow is that the Selection Committee cannot relax such essential
qualifications and, therefore, consideration of cases of those
candidates who did not fulfil this qualification was bad in law. Some
of the judgments noted by the Tribunal in this behalf have already
been mentioned. We may reproduce the relevant portions :-
(a) Secy., A.P. Public Service Comn. v. B. Swapna & Ors.,
(2005) 4 SCC 154
"15. Another aspect which this Court has highlighted is scope
for relaxation of norms. Although the Court must look with
respect upon the performance of duties by experts in the
respective fields, it cannot abdicate its functions of ushering in a
society based on rule of law. Once it is most satisfactorily
established that the Selection Committee did not have the
power to relax essential qualification, the entire process of
selection so far as the selected candidate is concerned gets
vitiated. In P.K. Ramachandra Iyer v. Union of India, (1984) 2
SCC 141, this Court held that once it is established that there is
no power to relax essential qualification, the entire process of
selection of the candidate was in contravention of the
established norms prescribed by advertisement. The power to
relax must be clearly spelt out and cannot otherwise be
exercised."
(b) Shainda Hasan v. State of U.P. & Ors.,
(1990) 3 SCC 48
"5. The High Court has rightly held the relaxation granted
by the Selection Committee to be arbitrary. In the absence of
statutory rules providing power of relaxation, the
advertisement must indicate that the Selection Committee/
appointing authority has the power to relax the qualifications.
Regarding "working knowledge of Urdu" we do not agree
with the High Court that the said qualification is unjust. The
college being a Muslim minority institution prescribing the said
qualification for the post of Principal, is in conformity with the
object of establishing the institution.
(c) Sukhdev Singh & Ors. v. Bhagatram Sardar Singh & Anr.,
(1975) 1 SCC 421
"23. The noticeable feature in that these statutory bodies have
no free hand in framing the conditions and terms of service of
their employees. These statutory bodies are bound to apply the
terms and conditions as laid down the regulations. The
statutory bodies are not free to make such terms as they think
fit and proper. Regulations prescribe the terms of appointment,
conditions of service and procedure for dismissing employees.
These regulations in the statutes are described as "status fetters
on freedom of contract". The Oil and Natural Gas Commission
Act in Section 12 specifically enacts that the terms and
conditions of the employees may be such as may be provided
by regulations. There is a legal compulsion on the Commission
to comply with the regulations. Any breach of such compliance
would be a breach of the regulations which are statutory
provisions. In other statutes under consideration, viz., the Life
Insurance Corporation Act and the Industrial Finance
Corporation Act though there is no specific provision
comparable to Section 12 of the 1959 Act the terms and
conditions of employment and conditions of service are
provided for by regulations. These regulations are not only
binding on the authorities but also on the public."
23. In the wake of this legal position, justification given for relaxation in
experience would not be of any help to the petitioner. Even if we
accept that in the absence of such relaxation there would not have
been eligible candidates for the post and, therefore, action of the
NHAI in giving relaxation of uniform basis in all cases was bona fide,
such a bona fide action would not validate an illegal action. Law
mandates that when a particular procedure is prescribed, executive
authority is bound to act as per the said procedure or not at all. If
NHAI is facing difficulty in getting the candidates as per the
qualifications prescribed in the Rule, appropriate course of action is
to either amend the eligibility conditions or introduce specific
provision empowering the competent authority to relax the existing
conditions. Such administrative difficulties cannot be a ground to
ignore the statutory rules. So long as they exist, they have to be
followed. It is misconceived on the part of the petitioner to contend
that the respondent No.1 is not prejudicially affected. In fact, for the
post of DGM (F&A) four years of experience as Manager (F&A) is
required, which the respondent No.1 fulfilled and his averment that
he was the only eligible candidate could not be refuted by the
petitioner.
24. Regulation 12(2) of the Regulations provides two channels for
appointment to the post of DGM (F&A), namely, promotion channel
and deputation channel. It, however appears that requirements of
these two separate channels was not followed by the Selection
Committee.
25. The aforesaid discussion leads us to the conclusion that the findings of
the Tribunal that the Selection Committee was not constituted
properly and that it had no power to relax the conditions are in
order and call for no interference.
26. At this stage, we may deal with two other submissions of Mr. Datta
challenging the locus standi of the respondent No.1 to file the OA.
His first objection to the maintainability of the said OA was that the
respondent No.1 having participated in the selection process was
precluded from challenging the same. However, this principle is
applicable in those circumstances where the concerned candidate is
made aware of the selection procedure and thereafter he participates
in the same with full knowledge. In the instant case, the respondent
No.1 could not have known about the constitution of the Selection
Committee before hand and he states that he came to know only
after he participated in the selection process/interview. It was
submitted by Mr. Nidesh Gupta that the respondent No.1 was at
most made aware that the Selection Committee was not properly
constituted; that the persons selected did not have the necessary
qualifications; that the panel, as required under the Regulations,
would not be prepared by the Selection Committee; that the
Selection Committee will introduce the new minimum cut off during
the course of the interview itself. It is also pointed out that the
respondent No.1, on coming to know of these illegalities, had even
represented against the same. This contention, therefore, of the
NHAI deserves rejection.
27. An argument in terrorem was advanced by the learned ASG, namely
the impugned order would set aside large number of appointments.
It was rightly pointed out by the leaned counsel for the respondent
No.1 that the instant case was only concerned with the selection to
the post of DGM (F&A). Moreover, most of the concerned persons
who came on deputation by those selections have already left NHAI,
as per the admission of NHAI in writ petition itself (Ground - W).
Only three persons, namely, respondent Nos. 2, 5 & 7, are going to
be affected. Significantly, they have not even approached the Court
challenging the judgment of the Tribunal and, thus, it appears that
they have accepted the judgment. Furthermore, when their
appointments are found to be illegal as they did not even fulfil the
requisite qualifications, these have to be treated as non est, as held in
the following cases:
(a) Secy., State of Karnataka & Ors. v. Umadevi & Ors.
(2006) 4 SCC 1
"43. Thus, it is clear that adherence to the rule of equality in
public employment is a basic feature of our Constitution and
since the rule of law is the core of our Constitution, a Court
would certainly be disabled from passing an order upholding a
violation of Article 14 or in ordering the overlooking of the need
to comply with the requirements of Article 14 read with Article
16 of the Constitution. Therefore, consistent with the scheme for
public employment, this Court while laying down the law, has
necessarily to hold that unless the appointment is in terms of the
relevant rules and after a proper competition among qualified
persons, the same would not confer any right on the appointee.
If it is a contractual appointment, the appointment comes to an
end at the end of the contract, if it were an engagement or
appointment on daily wages or casual basis, the same would
come to an end when it is discontinued. Similarly, a temporary
employee could not claim to be made permanent on the expiry
of his term of appointment. It has also to be clarified that merely
because a temporary employee or a casual wage worker is
continued for a time beyond the term of his appointment, he
would not be entitled to be absorbed in regular service or made
permanent, merely on the strength of such continuance, if the
original appointment was not made by following a due process
of selection as envisaged by the relevant rules. It is not open to
the court to prevent regular recruitment at the instance of
temporary employees whose period of employment has come
to an end or of ad hoc employees who by the very nature of
their appointment, do not acquire any right. High Courts acting
under Article 226 of the Constitution of India, should not
ordinarily issue directions for absorption, regularization, or
permanent continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme. Merely
because, an employee had continued under cover of an order of
Court, which we have described as 'litigious employment' in the
earlier part of the judgment, he would not be entitled to any
right to be absorbed or made permanent in the service. In fact,
in such cases, the High Court may not be justified in issuing
interim directions, since, after all, if ultimately the employee
approaching it is found entitled to relief, it may be possible for it
to mould the relief in such a manner that ultimately no prejudice
will be caused to him, whereas an interim direction to continue
his employment would hold up the regular procedure for
selection or impose on the State the burden of paying an
employee who is really not required. The courts must be careful
in ensuring that they do not interfere unduly with the economic
arrangement of its affairs by the State or its instrumentalities or
lend themselves the instruments to facilitate the bypassing of the
constitutional and statutory mandates."
(b) Binod Kr. Gupta & Ors. v. Ram Ashray Mahoto & Ors.,
(2005) 4 SCC 209
"13. The "advert6isement" was no "advertisement" as
required by the High Court. Without adequate notice no fair
opportunity was given to others who might have applied.
Apart from this, it does not appear from the records that there
was any selection procedure followed at all. There is no
explanation why the Selection Committee had been bypassed
nor any acceptable reason why the persons who had applied as
far back as in 1986 were ignored. This singular lack of
transparency supports the finding of the High Court that the
appointments were not made bona fide. The District Judge,
who was ultimately responsible for the appointment of Class
IV staff violated all norms in making the appointments. It is
regrettable that the instructions of the High Court were
disregarded with impunity and a procedure evolved for
appointment which cannot be said to be in any way fair or
above board. The submission of the appellants that they had
been validly appointed is in the circumstances unacceptable.
Nor can be accede to their prayer to continue in service. No
doubt, at the time of issuance of the notice on the special leave
petition, this Court had restrained the termination of services
of the appellants. However, having regard to the facts of the
case as have emerged, we are of the opinion that this Court
cannot be called upon to sustain such an obvious disregard of
the law and principles of conduct according to which every
judge and anyone connected with the judicial system are
required to function. If we allow the appellants to continue tin
service merely because they have been working in the posts for
the last 15 years we would be guilty of condoning a gross
irregularity in their initial appointment. The High Court has
been more than generous in allowing the appellants to
participate in any fresh selection procedure as may be held and
in granting a relaxation of the age limit."
28. The present case is an eye opener for the NHAI which has to put its
house in order by following the procedure as laid down in the
Regulations or else is supposed to take remedial measures to cater to
the ground realities. In any case, once illegalities are found in the
selection process, it is difficult to validate the same. We, thus, are
not inclined to interfere with the impugned judgment of the
Tribunal.
29. Finding no merit in this petition, we dismiss the same with costs
quantified at Rs. 10,000/-.
(A.K. SIKRI)
JUDGE
(SURESH KAIT)
JUDGE
July 03, 2009
nsk
