NATIONAL HIGHWAYS AUTHORITY OF INDIA vs SHRI KRISHNA MURARI SHARMA AND ANR

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 09.04.2024
+ W.P.(C) 4245/2024 & CM APPL. 17273/2024 -Stay
NATIONAL HIGHWAYS AUTHORITY OF INDIA ….. Petitioner
Through: Mr. Ankur Chhibber, Mr. Anshuman Mehrotra and Mr. Nikunj Arora, Advocates.

versus

SHRI KRISHNA MURARI SHARMA AND ANR ….. Respondents
Through: Mr. K. K. Rai, Sr. Advocate with Mr. A. S. Singh, Mr. Anshul Rai, Ms. Sreoshi Chattrjee and Ms. Medha Tandon, Advocates for R-1.
CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
HON’BLE MR. JUSTICE GIRISH KATHPALIA
REKHA PALLI, J (ORAL)
1. The present writ petition under Article 226 of the Constitution of India seeks to assail the order dated 03.07.2023 passed by the learned Central Administrative Tribunal in O. A. No. 1675/2021.
2. Vide the impugned order, the learned Tribunal has allowed the original application filed by the respondent no. 1 (hereinafter referred as ‘the applicant’) by directing the petitioner to consider his case for promotion to the post of General Manager (Technical) (hereinafter referred as ‘GM (T)’) by considering his seniority to the post of Deputy General Manager (Technical) (hereinafter referred as ‘Dy.GM (T)’) cadre w.e.f. 02.06.2014 as against from 05.01.2016. The learned Tribunal has, however, directed that in case the applicant is found fit for promotion from the said date, he will be granted only notional benefits including seniority in the cadre of GM (T) without any actual back wages.
3. Before dealing with the rival submissions of the parties, we may note the brief factual matrix as emerging from the record.
4. The applicant, while working as an Assistant Engineer in Road Construction Department, Government of Bihar, applied for the post of Manager (Technical) (hereinafter referred as ‘Manger (T)’) on deputation basis in the petitioner organisation/NHAI. Upon being selected, the applicant joined the petitioner organisation on 03.06.2010 as a Manager (T) on deputation basis initially for a period of three years, which period was extended from time to time. Consequently, the applicant continued to serve in the petitioner organisation as a deputationist till he came to be absorbed on 05.01.2016, for which absorption he had applied pursuant to OM dated 19.11.2014 issued by the petitioner. Upon his absorption, the petitioner organisation assigned him seniority on the post of Dy.GM (T) w.e.f. 05.01.2016. The applicant, however, claimed that he was entitled to be granted seniority as a Dy.GM (T) from the date he completed four years service as a Manager (T) i.e., 02.06.2014.
5. It may also be noted that while the applicant was still on deputation, the respondent no. 2, who was junior to him having been placed at serial no. 91 as against the applicant who was at serial no. 10 in the seniority list, on 18.09.2014 was appointed as a Manager (T) by way of direct recruitment. Based on his appointment as a Manager (T) on 18.09.2014, the respondent no. 2, vide order dated 27.10.2017, was promoted to the post of Dy. GM (T) and was soon thereafter promoted as GM (T) on 25.04.2018. Since the applicant being senior to the respondent no. 2 was not considered for promotion to the post of GM (T), he submitted a representation dated 01.05.2018 to the petitioner seeking promotion to the post of GM (T). In his representation, the applicant prayed that he be treated as Dy.GM (T) w.e.f. 02.06.2014 by taking into account his continuous service as Manager (T) w.e.f. 03.06.2010.
6. Upon the said representation being rejected, the applicant approached the learned Tribunal by way of O.A. No. 2184/2018 which was dismissed as withdrawn on account of rejection of his representation during the pendency of the said OA. Consequently, a fresh O.A. being O. A. No. 1675/2021 was filed by him, which OA has been allowed under the impugned order.
7. In support of the petition, Mr. Ankur Chhibber, learned counsel for the petitioner, submits that the impugned order is wholly perverse as the learned Tribunal has failed to appreciate that the applicant became a regular Dy.GM (T) only w.e.f. 05.01.2016 i.e., the date when he was absorbed as an employee of the petitioner. Furthermore, vide its circular dated 22.05.2017 the petitioner had made it clear that no candidate will be given seniority from a date prior to the date of his absorption as a regular employee in the petitioner. The applicant having not challenged this circular could not subsequently claim that his seniority as Dy. GM (T) should be taken into account w.e.f. 02.06.2014. He, therefore, prays that the impugned order be set aside.
8. On the other hand, Mr. K. K. Rai, learned senior counsel for the applicant supports the impugned order and submits that the learned Tribunal has rightly directed the petitioner to grant the applicant benefit of seniority w.e.f. 02.06.2014 to the post of Dy. GM (T) after taking into account the provisions of Clause 15(3) of the National Highways Authority of India (Recruitment, Seniority and Promotion) Regulations, 1996 (hereinafter referred as ‘the Regulations’). He contends that once the Regulations itself provide that deputation is a mode of appointment/recruitment, the learned Tribunal was justified in directing that the applicant’s seniority be determined by taking into account his experience as a deputationist. He submits that the petitioner’s circular dated 27.05.2017 being contrary to the statutory regulations have to be ignored and the applicant was rightly granted benefits in terms of Clause 15 (3) of the Regulations. Furthermore, a similar issue for inclusion of service of a depuationist towards seniority in the petitioner/NHAI has already been decided by this Court in National Highways Authority of India v. Sanjeev Kumar Sharma, 2016 SCC OnLine Del 2698.
9. Having considered the rival submissions of the parties, we may begin by noting relevant extracts of the impugned order, which read as under:-
“13. We have perused the records of the case carefully and heard arguments by both the counsels carefully. Here the basic issue is whether service rendered by the applicant in NHAI on notional basis as DGM (T) be counted for the purpose of promotion to the post of GM.
13.1. The admitted facts in this case are that the present applicant was initially appointed as Manager(Technical) in NHAI on 03.06.2010. He was subsequently absorbed in NHAI on 05.01.2016.
13.2. Clause 15(3) of the National Highways Authority of India (Recruitment, Seniority and Promotion) regulations, 1996, states that:
“15 (3). The seniority of persons initially appointed on deputation and subsequently absorbed in the Authority shall be reckoned from the date of their initial appointment. If two or more persons in the same grade get absorbed in the Authority on the same date, their inter se seniority shall be determined with reference to their seniority level in their parent cadre.”
13.3. Giving the benefit of Regulation 15(3) , the applicant was given notional benefit of Manager(T) from the date of his appointment i.e. 03.06.2010 and his effective date of entry into the cadre of DGM (technical. starts from 02.06.2014 . This benefit was given to him in 2018 and hence, the respondents considered his “service” in the cadre of DGM from 02.06.1014 to his date of absorption i.e. 05.01.2016 as notional. Further the benefit of this notional “service” in the cadre of DGM(Technical) was not considered for the promotion to the rank of GM(Technical) as he has not rendered actual service in the cadre of DGM(T) for three years to be eligible for promotion with effect from the date he completed 3 years as DGM(T).
13.4. Once, the notional benefit is given to the applicant in the cadre of DGM(Technical), his seniority is counted from the date. Hence, his seniority in the DGM(T) cadre for all practical purposes starts from 02.06.2014, the date he was given seniority in the cadre of DGM and not from 05.01.2016, the date he was absorbed in NHAI. Any circular or executive order clarifying that the benefit of such notional seniority cannot start before the date of absorption should not take away the statutory regulation which has a greater force than any subsequent circular. The clarificatory circulars cannot obviate the basic provisions in the regulation, which is part of subordinate legislation.
14. In view of the above, the applicant deserves to be considered to be promoted to the rank of GM(T) considering his seniority in the rank of DGM(T) , albeit such seniority is given notionally. Once, he has been placed at a particular seniority in the cadre of DGM(T), he is entitled to derive further benefit based on such seniority. Accordingly, he is entitled to be promoted to the rank of GM(T) after he completes 3 years, even notionally, in the cadre of DGM(T). If the selection committee found him otherwise eligible for promotion to the rank of GM(T), he shall be treated as promoted to the rank of GM(T) from the date when his juniors in the revised seniority of DGM(T) taking into the notional seniority of the applicant and similarly placed DGM(T)s in NHAI have been promoted as GM(T).
15. In view of the above, the respondents are directed to call the fresh meeting of the Selection Committee and consider the promotion of the present applicant to the post of GM (T), considering his seniority in the DGM(T) cadre with effect from 02.06.2014, not from 05.01.2016. However, the applicant shall not be given any back wages, but he will get notional benefit and seniority in the cadre of GM(T), if he is otherwise fit for promotion as GM(T) from such date.”
10. From a perusal of the aforesaid extracts of the impugned order, we find that the learned Tribunal has allowed the applicant’s OA by taking into account that in consonance with Clause 15 (3) of the Regulations, the petitioner had considered the applicant’s four years service from the date of his appointment as a deputationist Manager (T) on 03.06.2010 for the purposes of determining his effective date of entry into the cadre of Dy.GM (T). The learned Tribunal was of the view the petitioner having itself treated the applicant as a Dy. GM (T) w.e.f. 02.06.2014, it could not while considering his case for promotion to the post of GM(T), ignore this period between 02.06.2014 to 05.01.2016. The learned Tribunal found that once the applicant had been treated as Dy. GM (T) w.e.f. 02.06.2014, his seniority in the said post was required to be counted from the said date for all purposes including for the purpose of his promotion to the post of GM (T).
11. Learned counsel for the petitioner has not been able to deny that as per Clause 15 (3) of the Regulations, the service of the applicant as a deputationist could not be ignored. He has, however, contended that once the circular dated 22.05.2017 made it clear that promotion to the post of Dy. GM (T) would not be given from a date prior to the date of absorption of a deputationist, the applicant could not claim that his promotion to the post of Dy. GM (T) should be taken into account from 02.06.2014 as against 05.01.2016 i.e., the date on which he was absorbed. Having given our thoughtful consideration to this plea, we find that the provisions of this circular are contrary to the specific terms of Clause 15 (3) of the Regulations which clearly envisages that seniority of persons initially appointed on deputation and, subsequently, absorbed in the authority shall be reckoned from the date of their initial appointment. Such a circular which is contrary to the terms of the statutory regulations has to be necessarily ignored. We are, therefore, in agreement with the learned counsel for the applicant that the petitioner’s circular dated 22.05.2017 could not supersede the regulations, which clearly provided for inclusion of the period of deputation towards seniority.
12. In this regard, we may also refer to para nos. 11 and 12 of the decision in National Highways Authority of India (supra) wherein a co-ordinate Bench has held as under:-
“11. It is an accepted position that whether on deputation or after absorption, the applicants when posted as Manager (Technical) were in PB-3 (Rs. 15600-39100) with a Grade Pay of Rs. 6600. It is not the case of the NHAI that his requirement or eligibility condition is not fulfilled or satisfied by the applicants. Their contention is that the applicants when on deputation were not on regular service at the post of the Manager (Technical). This contention is predicated on the plea that the period during which the applicants were on deputation, they held a lien in their parent department.
12. The submission, in our opinion, is without merit and has been rightly rejected by the Tribunal. We have quoted the recruitment regulations with regard to appointment to the post of Manager (Technical). One of the modes of appointment is by transfer on deputation. This mode was applied and adopted by the NHAI when they had inducted the applicants as Manager (Technical). The applicants were appointed as Manager (Technical) after a proper selection process. There was no break and the appointment on deputation was followed by absorption without any time gap. The pay-scale did not undergo any revision, change or upgradation. Nature of duties performed etc. did not change. The Regulation quoted above is not expressly or impliedly to the contrary. It is not stipulated that the deputation period would not be counted as “regular service”. The experience stipulated in clause A.(i) would relate to appointment/recruitment by way of deputation or direct recruitment.”
13. In the light of the aforesaid, we find no infirmity in the impugned order, which in essence, only directs the petitioner to act in accordance with its statutory Regulations.
14. The writ petition, being meritless, stands dismissed alongwith the accompanying application.
(REKHA PALLI)
JUDGE

(GIRISH KATHPALIA)
JUDGE
APRIL 9, 2024
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