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IN THE CENTRAL ADMINISTRATIVE TRIBUNAL, PRINCIPAL BENCH

NEW DELHI.

ORIGINAL APPLICATION NO. OF 2015

IN THE MATTER OF :

Chandan Vatsa … Applicant

Versus

Ministry of Road Transport and Highways & Ors. … Respondents

WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANT

1. In the instant OA, the applicant has challenged the illegal action of

the Respondents in not recommending his name for selection/appointment

to the post of CGM (Technical) in the meetings of Search-cum-Selection

Committee, which were held on 8.1.2015 and 9.7.2015, although he is

fully eligible for selection to the said post and fulfills the criteria laid down

in respect of the said post.

2. That selection to the post of CGM (Technical) is governed by

National Highways Authority of India (Recruitment, seniority and

promotion) Amendment Regulations, 2008), (hereinafter referred to as

“NHAI Regulations”). Relevant portion of the same is reproduced

hereinbelow (at page 27 of the OA):-

Educational and other Recruitment Criteria

qualifications required

2. 3

Essential Educational Selection through Search-cum-

Qualification Selection Committee.
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Degree in Civil (1) From internal candidates holding the

Engineering from a post of a General Manager (Tech.) on a
reputed Institution of regular basis for a period of at least 6
Technology or a years and possessing the essential
recognized University. educational qualifications and essential
experience stipulated in column 2.
(i) Should be working in
an analogous post or the
post below (General
Manager/ Superintending (2) By deputation from officers under the
Engineer or equivalent) Central Government or State
for at least 6 years on a Government or Union Territories or
regular basis; and Universities or Recognized Research
(emphasis supplied) Institutions affiliated to Government of
India or Public Sector Undertaking or
Semi Government or Statutory or
Autonomous Organizations and other
(ii) 18 years experience at Government Bodies:-
Group ‘A’ (Pay scale of
Rs.8000-275-13500/-) or (i) holding analogus posts on regular
equivalent level post or basis; or
higher; and
(ii) with three years of regular service in
the posts in the pay scale of Rs.16400-
400-20000 or equivalent; or
(iii) 12 years experience
in Highways /Road/Bridge (iii) with six years of regular service in
Engineering. the posts in the pay scale of Rs.14300-
18300/- or equivalent; and (emphasis
supplied)

Possessing the essential educational

qualifications and essential experience
stipulated in column 2.

3. A perusal of the above makes it clear that in order to be eligible for

applying to the post of CGM (Technical), the internal candidate must be

holding the post of General Manager (Tech.) on regular basis for a period

of six years and should possess the essential educational qualifications

and essential experience as stipulated in Column 2. In the instant case,

the Applicant is working as GM (Tech) in NHAI since the year 2007 and

thus had more than six years’ experience on the said post on the date of

submission of application. Besides, he also duly possessed the requisite

educational qualification and experience as prescribed in the regulations.

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Thus he was fully eligible for being selected to the post of CGM

(Technical). The Screening committee had also found him eligible and his

name was forwarded to the Search-cum-Selection Committee along with

other eligible candidates (at page 45, 46, 62 & 83 of the OA). Even NHAI

has admitted in its counter affidavit that the applicant was fully eligible.

However despite the same his name was not considered. The only

justification given by NHAI in its counter affidavit is that the name of the

applicant was not considered at the SCSC dated 19.05.2015 subsequently

postponed to 09.07.2015, which was specifically reconvened to consider

his application besides that of those candidates whose cadre clearances,

ACRs and other records had not been obtained by NHAI at the time of

earlier SCSC dated 08.01.2015 (at internal pages 94, 96 & 98 of the OA

and 162, 163 & 165 of the rejoinder), to avoid future litigation (at internal

page ___ of the Counter affidavit of NHAI). It is submitted the said

reasoning of the respondents is absolutely perverse, illegal and

unsustainable in the eyes of law. Once a candidate is found to be eligible

by the Screening committee and his representation has been accepted by

the Competent Authority for reconsideration at the SCSC convened

specifically for the purpose, he has a vested right to be considered for

selection by the Search-cum-Selection Committee and non-consideration

of his candidature on the flimsy ground of “avoiding future litigation” is

violative of Article 14 & 16 of the Constitution and hence illegal, whereas

at the same time, others, like R-5, who had not even been considered

earlier as he was found ineligible and R-6, who had been considered

previously by the SCSC dated 08.01.2015 and not found suitable, were

considered fit and appointed by office orders dated 20.05.2015 (at internal

pages …….) outside the provisions of the Recruitment Regulations which

only provides for exemption from advertisement and Screening but not

selection process.
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4. Furthermore in terms of the advertisement, external candidates

applying for the post of CGM (Technical) must be working in an analogous

post or the post below (General Manager/ Superintending Engineer or

equivalent) for at least 6 years on a regular basis or should be having six

years of regular service in the posts in the pay scale of Rs.14300-18300/-

or equivalent. In the present case, Respondent No.3, 4 & 5 are external

candidates, who have been selected by the Selection Committee despite

the fact that none of them has either worked in an analogous post i.e.

Superintending Engineer for six years on regular basis or has six years of

regular service in the posts in the pay scale of Rs.14300-18300/- or

equivalent.

As per the advertisement, the crucial date for determining eligibility

was last prescribed for receipt of applications i.e. 30.6.2014 (at page 42 of

the OA). Thus the period of six years of regular service has to be counted

from 30.6.2008.The documents annexed by the applicant with the

rejoinder clearly show that from 1.4.2008 to 31.3.2011, Respondent No.3

was working in the substantive post of Executive engineer and was in

charge superintending engineer as against the requirement of regular

Superintending Engineer. His pay scale was also much lesser than what is

required under the NHAI regulations for becoming eligible for applying to

the post of CGM (Technical). He became Superintending Engineer on

regular basis only on 1.4.2011. Thus he did not meet the requirement of

six years regular service on the post of Superintending Engineer or in the

pay scale of Rs.14300-18300/- or equivalent. He was therefore clearly

ineligible. He was even declared ineligible by the first screening

committee. (at internal pages 46, 48, 50, 52, 54, 56 of the rejoinder filed

by the applicant and page 53 of OA).

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Similarly from 1.4.2008 to 31.3.2011, Respondent No.4 was

working in the substantive post of Executive engineer and was incharge

superintending engineer as against the requirement of regular

Superintending Engineer. His pay scale was also much lesser than what is

required under the NHAI regulations for becoming eligible for applying to

the post of CGM (Technical). He became Superintending Engineer on

regular basis only on 1.4.2011. Thus he did not meet the requirement of

six years regular service on the post of Superintending Engineer or in the

pay scale of Rs.14300-18300/- or equivalent. He was therefore clearly

ineligible He was also declared ineligible by the first screening committee.

(at internal pages 89, 91, 93, 95, 97, 99 of the rejoinder filed by the

applicant and page 56 of OA). Besides, he did not even fulfil the

Benchmark ACR grading of "Very Good" required as per DoPT circular

dated ………….. (at internal pages ………. of the rejoinder).

Reliance placed by the respondents on the G.O. dated 22.6.2012

issued by the government of Andhra Pradesh whereby Respondent No.3

& 4 had been temporarily promoted as Superintending Engineers on

notional basis w.e.f 1.9.2005 is totally misplaced. It is submitted that a

perusal of the said G.O. would show that the same has been issued by

exercising powers under Rule 10(a) of Andhra Pradesh State and

Subordinate Services Rules 1996. A perusal of the said rule particularly

sub rule (c), (d) & (f) would show that the appointments made under the

said rule are purely temporary in nature and do not entitle the appointees

to make preferential claim to future appointments to such service. It has

been further provided therein that such appointees would be replaced as

soon as possible by the member of service who is entitled to appointment

under the rules and service of such appointees can be terminated any

time by the appointing authority. Thus it becomes evident that the

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appointments made under the said rule are purely adhoc/stopgap

appointments whereas the NHAI regulations categorically stipulate regular

service on the analogous post as an essential eligibility criteria. Hence the

Respondent Nos.3 & 4 ought to have six years of regular service in the

post of Superintending Engineers in order to make them eligible for the

post in question and mere grant of in-charge appointment on notional

basis could not have made them eligible.

Likewise Respondent No.5 became Superintending Engineer on

regular basis only on 9.6.2009. Thus he did not meet the requirement of

six years regular service on the post of Superintending Engineer or in the

pay scale of Rs.14300-18300/- or equivalent. He was therefore clearly

ineligible He was also declared ineligible by the Screening Committee. (at

internal pages 130, 132 and 135 of the rejoinder filed by the applicant and

page 61 of OA) and accordingly not even considered by SCSC dated

08.01.2015.

Thus it becomes crystal clear that persons like respondent nos.3 &

4, who were totally ineligible have been considered and selected, while

the applicant who was fully eligible and possessed the requisite

qualification and experience has been passed over for selection at the

SCSC dated 08.01.2015. It is submitted that the aforesaid action of the

Respondents is ex facie arbitrary, illegal, unjust, unreasonable and is

actuated with malafide.

5. Interestingly, Respondent No.5 who was declared ineligible by the

first Screening committee (at page 61 of the OA), was not found eligible

even in the supplementary meeting of Screening Committee, where

Respondent No.3 & 4 were illegally shown eligible (at page 78 of the OA).

Thereafter even in the final list of eligible candidates prepared by the

respondents on 7.1.2015 (at page 83 of the OA), the name of Respondent

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No.5 was not mentioned anywhere. It clearly goes to show that he

continued to be ineligible for selection to the post of CGM (Technical).

However despite the said fact, he was appointed on deputation to the post

of CGM (Technical) vide office order dated 20.05.2018 (at page 21 of the

OA), without making him undergo any selection process and subsequently

in a totally illegal manner, the Search-cum-Selection Committee,

reconvened to consider the Applicant, regularized his appointment in the

meeting held on 9.7.2015 (at page 23 of the OA), whereas the name of

the applicant, who was fully eligible and who was an internal candidate,

had not even been considered. Even if it is assumed for the sake of

arguments that the respondents had the power under the rules to

dispense with the requirement of ascertaining the eligibility of external

candidates through Screening committee as had been contended by the

respondents, then also the statutory eligibility criteria provided under the

rules has to be fulfilled and the candidate not meeting the said criteria

cannot be appointed in any manner. Interestingly on one hand the

respondents bypassed all the statutory requirements and eligibility criteria

to accommodate an ineligible external candidate like Respondent No.5,

while on other hand they chose not to even consider the candidature of a

fully eligible internal candidate like the applicant. The malafide is clearly

writ large in the instant manner.

6. The contention of the respondents that the applicant was

considered in the meeting of Search-cum-Selection Committee dated

8.1.2015 and was not found suitable and therefore there was no

requirement of considering his candidature again when the meeting of

Search-cum-Selection Committee was reconvened on 9.7.2015 is ex facie

fallacious and ill-founded. It is submitted that subsequent to the first

meeting of Search-cum-Selection Committee dated 8.1.2015, the

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applicant had filed a detailed representation with the NHAI on 30.1.2015

(at page 61 of the OA). The said representation was forwarded by NHAI to

the Ministry of Road, Transport and Highways. The competent authority

after looking into the genuine grievance of the applicant and after taking

into consideration the fact that candidature of few candidates could not be

considered by the Search-cum-Selection Committee due to non-

availability of ACRs, cadre clearances and other records, came to the

conclusion that the meeting of Search-cum-Selection Committee deserves

to be reconvened so that the candidature of such candidates can be

considered (at pages 94, 96 & 98 of the OA).The said decision to

reconvene the meeting of Search-cum-Selection Committee was taken on

the basis of representation made by the applicant. The said fact is clear

from the comments prepared by the Ministry of Road, Transport and

Highways in response to the present OA, wherein it has been mentioned

that the meeting of Search-cum-Selection Committee was convened on

9.7.2015 for considering the representation of the applicant (at internal

page 162, 163 & 165 of the rejoinder). Thus it is absolutely clear that the

purpose of re-convening the meeting of Search-cum-Selection Committee

was to consider the candidature of the applicant to the post of CGM

(Technical). However instead of doing the same, the Search-cum-

Selection Committee illegally regularized the unlawful appointments of

Respondent No.5 & 6, though Respondent No.5 was not even eligible on

the date of his appointment (at page 21, 22, 23 of the OA).

As regards Respondent No.6, he was not found suitable in the

meeting of Search-cum-Selection Committee held on 8.1.2015 (at page 17

of the OA), Considering the name of an ineligible candidate like

Respondent No.5 in the subsequent meeting of Search-cum-Selection

Committee but not considering the name of an eligible candidate like the
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applicant, though another candidate i.e. Respondent No.6 whose name

was also not recommended by the first Search-cum-Selection Committee

had been considered is clearly arbitrary and illegal. .It is evident that the

Search-cum-Selection Committee has proceeded in a biased, arbitrary

and irrational manner. Deserving and fully eligible candidates have been

illegally left out whereas, totally ineligible candidates like Respondent

No.3, 4 and 5 have been appointed. It is clear that all the settled principles

of service jurisprudence have been thrown to winds and the selection has

been made in a totally illegal and unfair manner. Hence the said selection

process deserves to be struck down.

7. Notably as per NHAI regulations (at internal page 155 of the

Rejoinder), while making appointments, firstly the internal candidates have

to be considered and if eligible internal candidates are not available, then

only the external candidates have to be considered. However in the

instant case, despite the applicant being the eligible internal candidate, the

respondents did not consider his name and considered the name of

external candidates, who were not even eligible. Hence the entire

selection process gets vitiated.

8. Moreover this Hon’ble Tribunal vide order dated 19.1.2016 was

pleased to order that respondents would keep one post of CGM

(Technical) vacant for the applicant. The said order is still operating and

one post of CGM (Technical) is still lying vacant. Undeniably, the

Applicant duly fulfills the entire eligibility criteria and possesses the

educational qualification and essential experience for the said post. The

right of an eligible candidate to be considered for selection has been

considered to be equivalent to a fundamental right by the Hon’ble apex

Court in catena of judgments. Although the facts narrated hereinabove

make it clear that the appointments of Respondents nos,3 to 6 are illegal

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and deserve to be struck down, however even if this Hon’ble Tribunal

comes to a conclusion that their appointments may not be disturbed, then

also in so far as the applicant is concerned, he has a valuable right to be

considered for appointment to the post of CGM (Technical) and hence a

direction ought to be issued to the respondents to consider his

candidature for the said post keeping in view the fact that he has been

found to be eligible by the screening committee and it was on the basis of

his representation only that the ministry had decided to reconvene the

meeting of Search-cum-Selection Committee, so that his name may be

considered.

New Delhi (RAJIV KUMAR JHA)

DATED : ADVOCATE FOR THE APPLICANT