National Highway Authority Of ... vs Sanjay Verma
2021 Latest Caselaw 1078 MP

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           HIGH COURT OF MADHYA PRADESH, JABALPUR

                                 M.P. NO.08/2021

                                National Highway Authority of India

                                       -Versus-

                                Sanjay Verma and another
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CORAM:-

     Hon'ble Shri Justice Mohammad. Rafiq, Chief Justice.
      Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
    Whether approved for reporting ? Yes/Not.
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     Shri Vikram Singh, learned counsel for the petitioner.
     Shri Amardeep Gupta, learned counsel for the respondents.
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                               (Jabalpur : 25/03/2021)
Per: V.K.Shukla, J.

The instant petition has been filed under Article 227 of the

Constitution of India being aggrieved by the order dated 16-10-2020,

passed by the Central Administrative Tribunal, Bench at Jabalpur in

O.A.No.200/00816/2019 filed by the respondent.

2. The respondent filed an original application against the action on

the part of the authority of the petitioner organization in relation to not

considering the candidature for the purpose of promotion to the post of

DGM (Tech) in pursuance to the notification dated 21-02-2019, by which

the applications were invited amongst the Manager (Tech) prescribing

the other qualification required to have in account of the individual

concerned.

3. The petitioner organization filed detailed counter affidavit in

relation to the averments so enumerated in the said original application

and made out the case of not having the requisite qualification as per the

Recruitment Rules/ advertisement as the respondent lacked the regular

service of five years as required on the post of Manager (Tech). The

Screening Committee so constituted reached to the conclusion that all

internal candidates were lacking of the said requisite qualifications to

having regular service of five years of the feeder post of Manager(Tech)

and accordingly rejected the claim of individual persons including of

the respondent.

4. The facts of the case adumbrated are that on 10-04-2008, the

respondent who was serving on the post of Assistant Engineer in the

Water Resources Department, State of Madhya Pradesh was issued

letter granting appointment to the post of Manager (Tech) in the

petitioner organization on deputation basis for a period of 5 years. On 09-

04-2015, the respondent was repatriated on completion of the maximum

permissible period of seven years having been on deputation. On 12-06-

2015, the respondent again applied for the deputation with the petitioner

organization in view of the selection process as taken up wherein he was

again issued the letter granting the appointment on the post of

Manager(Tech) on deputation basis with effect from 12-06-2015. On 11-

10-2018, the Government of Madhya Pradesh passed an order in respect

of allowing the petitioner organization to absorb the services of the

respondent on the post of Manager in the pay scale of Rs.6600/- and as

such he was appointed on the post of Manager(Tech) by way of

absorption and since then he has been discharging the duties in

connection to the said post of Manager. On 21-02-2019, an

advertisement was issued by the petitioner organization notifying

recruitment for 117 posts of Deputy General Manager (Tech), (82 under

promotion mode and 35 under deputation mode). It was specified therein

that the eligibility criteria for the post would be Manager (Tech) of

NHAI with five years regular service on the post. The respondent was

found to have the requisite qualification as per the circular applied for

the promotion to the post of DGM(Tech). As per the advertisement, it

was made clear that the purposes of the promotion to the post of

DGM(Tech) was to fill up by way of promotion amonst the Manager

(Tech) of NHAI with five years regular service in that post possessing

essential qualification in Column No.1. On 25-07-2019, the respondent

submitted detailed representation to the extent that his applications

may be considered by placing it before the Screening Committee so

constituted for the said purpose and it should be clarified that the

respondent is having regular service for the purpose of promotion and

he be treated as eligible for the purpose of promotion to the post of

DGM(Tech). On 02-08-2019, the Screening Committee so constituted

in its meeting held on 02-08-2019 considered the candidature of the

fifty seven candidates and found none of the internal candidates eligible

for extending the benefit of promotion to the post of DGM(Tech) owing

to non fulfillment of eligibility criteria as laid down in recruitment

rules/ advertisement for the said post. The representation so submitted by

the respondent in respect of treating him to be eligible for promotion to

the post of DGM(Tech) was rejected by the competent authority of the

petitioner-organization by order dated 24-12-2019.

5. The respondent being aggrieved by the said rejection challenged

the said order before the Central Administrative Tribunal, Bench at

Jabalpur by filing O.A.No.816/2019. The petitioner organization filed a

detailed reply stating that the respondent was not eligible in accordance

to the qualification as prescribed in the advertisement on account of

not having the requisite regular service of five years in the said feeder

cadre of Manager(Tech). The Tribunal passed an interim order in

favour of the respondent directing to keep one post vacant of DGM

(Tech). On 12-02-2020, the petitioner organization issued a new

advertisement for recruitment to 124 posts in the grade of Deputy

General Manager (Technical) on promotion /deputation basis as the same

was done after the culmination of the process 2019 for the said post.

6. The respondent being aggrieved by the new recruitment process

2020, filed a second identical application before the Central

Administrative Tribunal challenging the said recruitment process

alleging that 2019 recruitment process has not been finalized. The

Central Administrative Tribunal passed the impugned order placing

reliance on the order of the High Court in National Highway Authority

of India Vs. Sanjeev Kumar Sharma and others to hold that the service

of the respondent during the time of deputation should be considered

as regular service and the same could be taken towards qualifying

service.

7. Being aggrieved by the aforesaid impugned order dated 16-10-

2020, the present petition has been filed.

8. Learned counsel for the petitioner made attempt to say that the

judgment relied by the Central Administrative Tribunal is

distinguishable. However, he could not point out any distinguishing

feature. The Central Administrative Tribunal has referred the order dated

11-11-2014 passed in OA No.3696/2014 passed by the Principal Bench

of Central Administrative Tribunal , New Delhi, which reads as under :

"In the instant case, we find that NHAI Regulation do provide for appointment of officers on deputation as Manager (T). Thus deputation as a mode of recruitment is prescribed under the Regulations. There is also no doubt that the vacancies against which the applicants were appointed were long term regular vacancies as the applicants had continued on these posts for several years. It follows that the appointment of applicants as Manager (T) on deputation basis in NHAI was regular appointment and the service rendered by them commencing from their date of deputation would be deemed to be regular service. Hence, the eligibility of the applicants for promotion to the post of DGM (T) should be determined after taking into account this service. Since it is not in dispute that the applicants joined NHAI on different dates between

2004 to 2008, it is obvious that all of them have completed 04 years of regular service as Manager (T) and have therefore become eligible for consideration for promotion to the post of DGM(T) provided they are otherwise eligible."

The said order became matter of challenge before the High Court at

New Delhi. The Hon'ble Delhi High Court has also upheld the order

passed by the Principal Bench of the Tribunal. The Central

Administrative Tribunal has also referred the order dated 03-09-2020

passed in O.A.No.876/2020 by the Central Administrative Tribunal,

Principal Bench, New Delhi. The relevant portion of the same reads as

under :

"8. This very question arose for consideration before this Tribunal in OAs. 3696 & 3672 of 2014. It was categorically held that the experience of an officer in the post of Manager, whether it was on promotion or on deputation, must be taken into account for the purpose of determining the eligibility for promotion to the post of Deputy General Manager. The plea of the respondents that it must be reckoned from the date of absorption was repelled. The judgement of the Tribunal was upheld by the Hon'ble Delhi High Court in W.P.(C)No. 9227 of 2014, dated 05.04.2016. The Hon'ble High Court observed as under :

"11. On the issue and meaning of the expression "regular service", we would like to refer to the ratio in K. Madhavan and Another Vs. Union of India and Others, (1987) 4 SCC

566. Elucidating on the question of deputation and transfer, the Supreme Court opined that there was not much difference between the two. Deputation may be regarded as a transfer from one government department to another. Pertinently, it was held that it would be against

all rules of service jurisprudence if a government servant holding a particular post is transferred to the same or an equivalent post in another government department and the period of his service in the post before transfer, is not taken into consideration for seniority in the transferred post. We are not directly concerned as such with the second aspect in the present case, but the reasoning and ratio would support and affirm our view. It would be irrational and incongruous to hold that the period spent on the post of Manager (Technical) while on deputation would be treated and regarded as irregular or nonest service and which cannot be counted for the purpose of regular service under column 8 of the recruitment regulation for appointment to the post of Deputy General Manager (Technical). Any other interpretation, in the absence of a contrary regulation/rule, would be unfair and unjust. The deputationist would be at a disadvantage in comparison to the candidates appointed to the post of Manager (Technical) on subsequent dates by way of direct recruitment or promotion. For direct recruits, the period spent on probation is also counted as experience on the post regularly held."

9. SLP No.18898/2016 was also filed against the same which was

dismissed by the Hon'ble Supreme Court. Thus, the order passed by the

Central Administrative Tribunal , Principal Bench New Delhi was

affirmed by the Delhi High Court and also by the Hon'ble Supreme

Court . The Tribunal has also taken into consideration a circular dated 22-

05-2017 issued by the NHAI. The issue involved in the present case was

found to be similar to the issue involved in the said petition and the case

was fully covered by the order passed by the Principal Bench of the

Tribunal in O.A.No.3696/2014 and O.A.No.876/2020. On the basis of

aforesaid, the Tribunal held that the applicant fulfills the eligibility

criteria as stipulated for promotion to the post of Deputy General

Manager (Tech) inasmuch as held the post of the Manager for more than

five years

10. For the said reasoning, the rejection of order passed by the

petitioner dated 24-12-2019 was quashed and the present petitioner has

been directed to consider the respondent for promotion to the post of

Deputy General Manager (Tech) with all consequential benefits. We do

not find any error in the order passed by the Central Administrative

Tribunal, Jabalpur warranting any interference under Article 227 of the

Constitution of India as the petitioner has failed to point out any illegality

or perversity in the order.

11. With the aforesaid, the writ petition stands dismissed.

  ( MOHAMMAD RAFIQ) )                             (VIJAY KUMAR SHUKLA)
    CHIEF JUSTICE                                     JUDGE

hsp.
                 Digitally signed by HAR
                 SAHAY PATERIYA
                 Date: 2021.04.01
                 10:38:15 +05'30'