WP (C) No. 617/2009 nsk Page 1 of 21 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 WP (C) No. 617/2009 nsk Page 2 of 21 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, WP (C) No. 617/2009 nsk Page 3 of 21 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 WP (C) No. 617/2009 nsk Page 4 of 21 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. WP (C) No. 617/2009 nsk Page 5 of 21 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 WP (C) No. 617/2009 nsk Page 6 of 21 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). WP (C) No. 617/2009 nsk Page 7 of 21 (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 WP (C) No. 617/2009 nsk Page 8 of 21 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 :- WP (C) No. 617/2009 nsk Page 9 of 21 (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 WP (C) No. 617/2009 nsk Page 10 of 21 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 WP (C) No. 617/2009 nsk Page 11 of 21 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 WP (C) No. 617/2009 nsk Page 12 of 21 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 WP (C) No. 617/2009 nsk Page 13 of 21 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. WP (C) No. 617/2009 nsk Page 14 of 21 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 WP (C) No. 617/2009 nsk Page 15 of 21 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., WP (C) No. 617/2009 nsk Page 16 of 21 (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