Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
2024 INSC 943
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 202 4
14100
[ @ SPECIAL LEAVE PETITION (CIVIL) NO.18349 OF 2023 ]
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NATIONAL HIGHWAY AUTHORITY OF INDIA …APPELLANT
VERSUS
G ATHIPATHI AND OTHERS …RESPONDENTS
R1: G. ATHIPATHI, DEPUTY GENERAL MANAGER (TECHNICAL)
R2: THE CHAIRMAN
R3: THE MEMBER (ADMINSITRATION)
R4: THE CHIEF GENERAL MANAGER (HR/ADMN)
J U D G M E N T
AHSANUDDIN AMANULLAH, J.
Leave granted.
Signature Not Verified
Digitally signed by
Nirmala Negi
Date: 2024.12.09
17:27:09 IST
Reason:
2. Heard Mr. Santosh Kumar, learned counsel for the appellant and
Mr. A. Lakshminarayanan, learned counsel for the respondent no.1.
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To be read as ‘National Highways Authority of India’.
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3. The present appeal arises from the Final Judgment and Order
dated 01.03.2023 (hereinafter referred to as the “Impugned Order”),
passed by the Division Bench of the High Court of Judicature at Madras
(hereinafter referred to as the “High Court”) in W.P. No.11060 of 2021,
whereby the appeal filed by the appellant was dismissed and the
judgment dated 30.12.2020 rendered by the Central Administrative
Tribunal, Chennai Bench (hereinafter referred to as the “CAT”) in O.A.
No.310/01633/2020 was upheld.
THE FACTUAL SETTING:
4. The respondent no.1 was initially working as an Assistant
Engineer in the service of the Government of Tamil Nadu. The appellant,
by an order dated 27.05.2008, appointed him on deputation basis as
Manager (Technical) with effect from 21.05.2008, initially for a period of
three years. He worked continuously for a period of six years till
13.06.2014, when he was repatriated to the parent department viz . the
Highways & Minor Ports Department, Government of Tamil Nadu. In the
meantime, an advertisement dated 15.03.2014 had been issued by the
appellant inviting applications for recruitment to the post of Manager
(Technical) on direct recruitment basis. The respondent no.1, on
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11.04.2014, had applied for the said post after receiving approval from
the parent department. Subsequent to his repatriation, he appeared in
the written examination on 23.08.2014 and was selected as Manager
(Technical) vide order dated 11.09.2014 by the appellant. On
26.08.2015, the respondent no.1 joined as Manager (Technical). The
order of appointment of respondent no.1 was passed by the appellant on
02.09.2015 with effect from 26.08.2015.
5. The post of Manager (Technical) is the feeding cadre for
promotion to the post of Deputy General Manager (Technical). As per the
Schedule appended to the National Highways Authority of India
(Recruitment, Seniority and Promotion) Regulations, 1996 (hereinafter
referred to as the “Recruitment Regulations”), promotion to the post of
Deputy General Manager (Technical) may be made from candidates
holding the post of Manager (Technical) for a period of at least 4 years.
As such, a Circular was issued by the appellant on 22.05.2017
(hereinafter referred to as the “Circular”) inviting applications from all
eligible Managers (Technical) for promotion to the post of Deputy
General Manager (Technical). Clause 6 of the said Circular is extracted
hereunder:
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“ 6. It has also been decided to treat the deputation
service (if any) rendered on the post of Manager
(Technical) in NHAI as regular service for the purpose
of promotion to the post of DGM (Technical). It has
also been decided that the Manager (Technical), when
found suitable for promotion, shall be promoted to the
post of DGM (Technical) notionally with effect from the
date they fulfil the eligibility criteria for the promotion,
but not before the date of absorption and the date of
promotion of applicants in OA 3696/2014 and
3762/2014 i.e. dated 29.12.2014, subject to
recommendations of the Selection Committee. The
actual promotion shall take effect from the date of
assumption of charge against the post of DGM
(Technical). ”
6. The issue of considering deputation service as regular service for
promotion to the post of Deputy General Manager (Technical) was
deliberated on in a Meeting of the Executive Committee of the appellant
held on 12.10.2017. The decision thereon, as recorded in the Minutes of
Meeting dated 20.10.2017, is reproduced hereunder:
“ (c) As a strict one time measure and a special case,
the deputation service (including period of absence
from NHAI for fulfilling administrative formalities e.g.
submission/ acceptance of technical resignation /
retirement etc.) will be treated as regular service for
the purpose of reckoning eligibility for the promotion to
the post of DGM (Tech.), in respect of Managers
(Tech.) who have subsequently been appointed in
NHAI on Direct Recruitment basis as Manager (Tech.).
This will also end prolonged litigation and ensure
fairness and justice to the candidates who chose to
face competition by going for direct recruitment. ”
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7. The respondent no.1 applied for promotion to the post of Deputy
General Manager (Technical). The Screening Committee of the appellant
declared him ‘ not eligible ’. Accordingly, a promotion order dated
26.09.2017 was passed by the appellant in respect of thirty-nine
Managers (Technical) to the posts of Deputy General Managers
(Technical). Thereafter, the respondent no.1 sent Representations dated
18.06.2018, 22.11.2018 and 24.04.2019 to the appellant to consider his
candidature. As no decision was taken on the same, he approached the
CAT by way of O.A. No.310/00992/2019, which was disposed of vide
order dated 26.07.2019. The CAT directed the appellant to consider the
representations supra in light of the Circular and pass a speaking order
within four months.
8. After considering the Representations of respondent no.1, the
appellant vide order dated 05.11.2019 observed that his case may not be
treated as similar to that of three other officers, since, those officers had
appeared in the direct recruitment examination of Manager (Technical)
while working in the appellant whereas respondent no.1 had taken the
examination after his repatriation and was working in his parent
department. Aggrieved, the respondent no.1 again approached the CAT
by filing O.A. No.310/01633/2020 and praying:
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“ To call for the records pertaining to the impugned
Office Order No. 11041/242/2017-Adm.II (Pt) dated
05.11.2019 of the 4th Respondent and quash the
same and direct the Respondents to count the
applicant’s deputation service from 21.05.2008 to
13.06.2014 for promotion as Deputy General Manager
(T) and to promote the applicant as Deputy General
Manager as was done in respect of three similarly
placed officers on and with effect from 27.10.2017 and
as General Manager (T) with effect from 27.04.2018
along with all other services and monetary benefits
including pay fixation, seniority, etc., and pass such
further or other orders as the Hon'ble Tribunal may be
deem fit proper under the facts and circumstances of
the case and thus render justice. ”
9. The CAT, after hearing parties and considering the material on
record, vide order dated 30.12.2020 allowed the Original Application filed
by the respondent no.1. It directed the appellant to count the respondent
no.1’s deputation service period from 21.05.2008 to 13.06.2014 for
promotion to the post of Deputy General Manager (Technical) and to
promote him as Deputy General Manager (Technical) with effect from
27.10.2017 with all consequential benefits. The appellant was further
directed to consider his case for promotion to the post of General
Manager (Technical) as per rules. In compliance of the CAT’s order,
respondent no.1 was promoted to the post of Deputy General Manager
(Technical) on 07.06.2021. The appellant challenged the CAT order
dated 30.12.2020 in the High Court through W.P. No. 11060 of 2021,
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which has been dismissed by the High Court vide the Impugned Order
dated 01.03.2023.
SUBMISSIONS BY THE APPELLANT:
10. It was submitted by the learned counsel that the High Court failed
to consider that as per the Schedule to the Recruitment Regulations,
promotion to the post of Deputy General Manager (Technical) inter alia ,
could be made by promoting candidates continuously holding the post of
Manager (Technical) for a period of at least four years. It was pointed out
that the respondent no.1 joined the appellant on deputation basis and
worked till 13.06.2014, when he was repatriated to his parent
department. Thereafter, the respondent no.1 re-joined the appellant on
direct recruitment basis to the post of Manager (Technical) on
26.08.2015 i.e., after a gap of 1 year and 2 months. It was argued that
the service rendered by the respondent no.1 on deputation basis could
not be considered due to this gap and in view of the same, he could be
eligible for promotion to the post of Deputy General Manager (Technical)
only after four years of service from the date of appointment on direct
recruitment basis i.e., 26.08.2015. Thus, the respondent no.1 was
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ineligible for promotion as on 27.07.2017 i.e., the date from which the
CAT has directed the appellant to promote the respondent no.1 to the
post of Deputy General Manager (Technical).
11. Learned counsel contended that the respondent no.1 and other
candidates on deputation service on the post of Manager (Technical)
cannot be considered equally for promotion to the post of Deputy
General Manager (Technical) as, on the date of direct recruitment
examination, i.e., 23.08.2014, the respondent no.1 was not incumbent as
a Manager (Technical) as he was already repatriated to his parent
department. Whereas, the three other candidates, with whom respondent
no.1 claims parity, were continuing in the service of the appellant as on
the date of the written examination for the post of Manager (Technical).
12. It was next submitted that the High Court failed to consider that
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neither the Recruitment Regulations nor the decision of the 320
Executive Committee meeting dated 12.10.2017, regularize any
extended period of absence and rather, had only condoned a period for
administrative reasons which is only 20 days in the case of the
respondent no.1. It was submitted that this period of 20 days has been
regularized by the appellant, however, the period from 13.06.2014 to
26.08.2015 wherein the respondent no.1 was under the administrative
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control of his parent department cannot be considered for promotion to
the post of Deputy General Manager (Technical) as per the Recruitment
Regulations. In view of the same, the Screening Committee had rejected
the application of respondent no.1 .
13. It was further submitted that the Circular was issued on the basis
of the decision of the Delhi High Court in W.P. (Civil) No.9227 of 2014
titled National Highways Authority of India v Sanjeev Kumar
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Sharma . In the aforementioned case, the Delhi High Court vide order
dated 05.04.2016 had observed that the petitioners therein had no gap in
service. Thus, the Circular did not contemplate the regularization of any
gap in the service.
14. Next, it was submitted that promotion was through a selection
process and not based on seniority. Regulation 12(2) of the Recruitment
Regulations provides that, on receipt of applications, the Screening
Committee shall screen the applications with respect to the eligibility
criteria prescribed for the post, and recommend the eligible candidates
for consideration of the Selection Committee for final selection on the
basis of written test or interview or as decided by the Selection
Committee. It was pointed out that 93 applications were received for the
2
2016 SCC OnLine Del 2698 .
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post in question, out of which only 64 candidates were declared eligible
and 29 candidates, including the respondent no.1 were declared
ineligible. Thereafter, interview was conducted of the eligible candidates
and promotion order dated 26.09.2017 was issued whereby out of the 64
candidates, only 39 were promoted to the posts of Deputy General
Manager (Technical). Thus, it was submitted, that even if it is assumed
that the respondent no.1 was fulfilling the eligibility criteria, the CAT in the
order dated 30.12.2020 and the High Court in the Impugned Order could
not have issued directions for appointment of the respondent no.1 as
Deputy General Manager (Technical). It was submitted that directions
could only have been issued for considering the respondent no.1 for
promotion to the post in question. Prayer was, accordingly, made to allow
this appeal.
SUBMISSIONS BY RESPONDENT NO.1:
15. Per contra , learned counsel for the respondent no.1 (sole
contesting respondent) submitted that the CAT has held that there was
no requirement in the Recruitment Regulations or the Circular that a
candidate who had finished the qualifying service of four years must fulfill
the additional requirement of being absorbed into the appellant without
any break. It was submitted that this order of CAT has been upheld by
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the Impugned Order, observing that the Circular was clear and
unambiguous that deputation service was to be considered and did not
provide that the person must continue to be on deputation or be
absorbed for that service to be considered.
16. It was further submitted that the appellant had failed to make any
case for interference with the well-reasoned orders of the CAT and the
High Court. Admittedly, the respondent no.1 had served on deputation
basis for six years without a break, which is well beyond the requirement
of four years. It was submitted that he had to return to the parent
department as the maximum period of deputation was over but returned
to the appellant at the earliest opportunity on direct recruitment basis
after clearing the examination. It was submitted that his compliance with
the service rules governing his deputation at the relevant time should not
be held against him.
17. Learned counsel contended that if the appellant’s submissions are
accepted, then even persons who joined the appellant in 2013 but just
happened to be in service on the date of the Circular would be eligible for
promotion, but the respondent no.1 would not be despite having joined in
2008. This would be manifestly arbitrary and unfair. Further, as noted by
CAT, the appellant granted the benefit of the Circular to three other
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candidates but only in the respondent no.1’s case, the Circular and the
Executive Committee decision has not been applied, which is
discriminatory. It was pointed out that even these three other candidates
are junior to the respondent no.1 and have joined in 2010-11.
18. Next, it was submitted that the concept of ‘ break in service ’ is
inapplicable in the instant case as the qualifying service of four years has
admittedly been met. As noted by the CAT and High Court, the
appellant’s contention amounts to inserting an additional requirement
into the Circular, which is not supported by the plain language of the
Recruitment Regulations, Circular or the Executive Committee decision.
It was further submitted that the decision in Sanjeev Kumar Sharma
( supra ) relied on by the appellants would not help their case, as the
question of ‘ break in servic e’ or ‘ absorption ’ was not an issue before the
Delhi High Court. For these reasons, learned counsel sought dismissal of
the appeal.
ANALYSIS, REASONING & CONCLUSION:
19. Having given our anxious thought, we find that two basic issues
need to be addressed before arriving at a final conclusion.
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20. Firstly , and most importantly, as to what would be the criteria for
considering such one-time promotion to the post of Deputy General
Manager (Technical) in terms of the Circular dated 22.05.2017, and;
secondly , as to whether the respondent no.1 fulfils such criteria on the
relevant date.
21. In the Circular, the language of Clause 6 is very clear and
stipulates that a person’s deputation service, if any, rendered on the post
of Manager (Technical) in the appellant shall be treated as regular
service for the purposes of promotion to the post of Deputy General
Manager (Technical) and such promotion would be notional with effect
from the date he fulfils the eligibility criteria of promotion but not before
the date of absorption of applicants in OA Nos.3696/2014 and 3762/2014
orders dated 29.12.2014, subject to recommendations of the Selection
Committee.
22. From the above, it is clear that the period of deputation is also to
be considered while considering such promotion but the question lies in
the fact that whether a person, who before coming into effect of Clause
6, stood repatriated to his parent department and was no more in the
service of the appellant can take advantage of the said Clause.
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23. In the present case, respondent no.1 was initially appointed as
Manager (Technical) on deputation by order dated 27.05.2008 and
worked as such till 13.06.2014. Thereafter, he was repatriated to his
parent department namely the Highways & Minor Ports Department,
Government of Tamil Nadu. Thus, it is clear that the repatriation of
respondent no.1 from 13.06.2014 was back to a Government
Department in the State of Tamil Nadu on a full-time basis since it was
the parent department of the respondent no.1 and unconnected with the
appellant. The respondent no.1 later on joined in the service of the
appellant on direct recruitment basis to the post of Manager (Technical)
for which he was selected on 26.08.2015 and finally appointed on
02.09.2015 albeit with effect from 26.08.2015. Thus, for all practical
purposes, it meant direct and fresh entry on a permanent basis of the
respondent no.1 into the appellant. As he had been repatriated to his
parent department more than a year prior to such permanent
appointment, it cannot be termed ‘ absorption ’ which finds mention in the
aforesaid Clause 6. Thus, respondent no.1 was a fresh and new recruit
into the service of the appellant directly to the post of Manager
(Technical). This was totally unrelated/unconnected to his previous
service with the NHAI from 27.05.2008 till 13.06.2014 which transaction
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was complete and reached finality when the respondent no.1 was
repatriated to his parent department.
24. The respondent no.1 thus does not stand in the same queue in
which the other three persons were, the difference being that the other
persons were working with/in the appellant at the relevant point(s) in
time. In this view of the matter, there can be no other meaning given to
the benefit being extended to persons, who were on deputation service
and as such had put in more than four years on such post. The
respondent no.1 clearly on 22.05.2017 had not completed 4 years as
that in law has to be counted afresh from 26.08.2015 and not from a
previous date. This is for the reason that had the respondent no.1 not
applied for and taken part in the selection process as a direct recruit,
being selected, his claim would not have arisen for any promotion under
Clause 6 of the Circular. The persons already working with the appellant
on the day of consideration and having completed more than four years
of service on the post of Manager (Technical) were only required to be
considered. Here, we may clarify that the only object of Clause 6 was to
obliterate the difference between a person working on deputation on the
post of Manager (Technical) and a person regularly working on the post
of Manager (Technical) under the service of the appellant. This also was
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done as a ‘ one-time measure ’. Thus, the legal issue to be decided is as
to whether respondent no.1 has to be treated as a fresh entrant without
the benefit of his past service on deputation from 21.05.2008 till
13.06.2014 or he has to be treated as a fresh appointee, in which case
the clock would, to say so, start ticking only from 26.08.2015.
25. The contention of the learned counsel for the appellant is correct
that if the interpretation advanced by the respondent no.1 is given to
Clause 6, then it would cover all persons who, at any point of time, may
have worked with the appellant for four years, getting the benefit, even
with gaps in service in the appellant. A person on deputation was given a
one-time benefit for being considered for promotion to the post of Deputy
General Manager (Technical) by the appellant for ending prolonged
litigation and for ensuring fairness and justice to the candidates who
chose to face competition by going for direct recruitment as would be
clear from the Minutes dated 20.10.2017 quoted above of the Executive
Commi ttee’s Meeting held on 12.10.2017. The said Minutes leave a
window open for people who may have been absent from service in the
appellant for certain period, but with the caveat that such period of
absence was restricted to the purposes of fulfilling administrative
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formalities e.g. submission/acceptance of technical
resignation/retirement etc.
26. In the present case, respondent no.1 was absent from the service
of the appellant not for any of the above specific purposes, but on a
permanent basis i.e., being sent back to his parent department.
Unfortunately, to our mind, the ‘ etc. ’ in ‘ fulfilling administrative formalities
e.g. submission/ acceptance of technical resignation / retirement etc ’
would not cover situation of respondent no.1. Obviously, respondent no.1
cannot take advantage of a saving provision for such deputationists who,
for some period, had to go back but for the purposes of returning to the
appellant, which have been incorporated in the Minutes supra .
27. For reasons aforesaid, we find that the appellant has made out a
case for interference and the decision taken by the appellant not to grant
promotion to the respondent no.1 needs to be upheld. The other three
persons had been granted promotion for the reason that those three
persons were very much working in/with the appellant on the date of
consideration and had completed more than four years of minimum
required service whereas the respondent no.1 had not completed four
years of minimum required service. Hence, he could not have been
considered for promotion from 23.07.2017 as per the direction of the CAT
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since he had not completed four years on the post of the Manager
(Technical) after having joined pursuant to direct recruitment on such
post, on which service could only be reckoned from 26.08.2015. Even
otherwise, ‘ …past services can be taken into consideration only when the
Rules permit the same or where a special situation exists, which would
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entitle the employee to obtain such benefit of past service. ’ The instant
case, as projected by respondent no.1 is not covered under the Circular
or the Minutes dated 20.10.2017 of the Meeting dated 12.10.2017.
28. Further, Circular dated 25.05.2017 itself was the outcome of the
order of a Division Bench of the Delhi High Court in Sanjeev Kumar
Sharma ( supra ), wherein it was observed that the petitioners therein be
considered for promotion as there was no gap in service. In the case at
hand, upon repatriation, there was no subsequent deputation of
respondent no.1 to the appellant. Only after more than one year pursuant
to taking part in a process for direct and regular recruitment to the post of
Manager (Technical), respondent no.1 was appointed, with effect from
26.08.2015. Therefore, we have no doubt that the Circular dated
22.05.2017 would not confer any legal right on the respondent no.1 for
3
Indu Shekhar Singh v State of Uttar Pradesh, (2006) 8 SCC 129 .
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consideration for promotion to the post of Deputy General Manager
(Technical) with effect from 27.07.2017.
29. Accordingly, the Impugned Order dated 01.03.2023 as also CAT’s
order dated 30.12.2020 in O. A. No. 310/01633/2020 cannot be sustained
and are set aside. Resultantly, the said Original Application filed by the
respondent no.1 shall stand dismissed. Respondent no.1 shall be
considered for promotion(s) in terms of the Recruitment Regulations and
the Circular and the discussions made in this order and all consequential
benefits of service (including pension etc., if and as applicable) shall be
reckoned treating his date of entry into service of the appellant as
26.08.2015. However, no recovery/adjustment shall be made of excess
payment(s) made to the respondent no.1, if any.
30. The appeal is allowed.
31. No order as to cost.
…………………........................J.
[SUDHANSHU DHULIA]
……………………......................J.
[AHSANUDDIN AMANULLAH]
NEW DELHI
DECEMBER 09, 2024