Full Judgment Text
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 03.12.2014
+ W.P. (C) 8412/2014
NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner
Through: Ms. Aayushi Kiran with Ms. Tanupriya
Gupta and Mr. Mukesh Verma, Advocates.
versus
ASHOK KUMAR GUPTA ..... Respondent
Through: Mr. S.K. Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
S.RAVINDRA BHAT, J. (OPEN COURT)
1. Issue notice to the respondent. Mr. S.K. Gupta, Advocate
accepts notice on behalf of respondent. With consent, matter has been
taken up for disposal.
2. The petitioner feels aggrieved by an order of the Central
Administrative Tribunal (hereafter referred to as ‘CAT’) dated
11.09.2014 passed in OA 1418/2014. By that order, the NHAI has
been directed to reconsider the respondent/applicant’s case for
absorption.
3. The facts are that the applicant joined the National Highways
Authority of India (hereafter referred to as ‘NHAI’) as Manager
(Technical) on deputation. He is a permanent officer of the Public
W.P.(C)8412/2014 Page 1
Works Department, Rajasthan, holding lien in the cadre of the
Assistant Engineer (AE). His deputation was continued by the NHAI;
this arrangement was not objected to by the Rajasthan Government.
On 25.04.2007, the applicant was appointed as DGM (Technical).
This was for a period of four years. At that time, the Rajasthan
Government had extended its no-objection through a certificate issued
on 7.3.2009. The applicant’s deputation was further extended up to
31.10.2010 with approval of the Ministry controlling the NHAI. It
was not intended thereafter. The respondent responded to a Circular
dated 1.11.2012 - inviting applications from those working as DGM
(Technical) on deputation, for absorption. This application was
considered, but on the basis of the perceived poor record of the
petitioner/applicant, the NHAI refused to accept his request for
absorption. The applicant was aggrieved because, while his reporting
officer had apparently strongly recommended his case for absorption,
however, the competent authority thought otherwise. The applicant
approached the CAT complaining of arbitrary rejection of his request
because, in the meanwhile on 31.5.2013, there was an improvement
recorded in his performance for the relevant period. On the basis of
these materials the CAT directed NHAI to reconsider the issue.
4. An important event had occurred in the meanwhile, in that, the
applicant had been repatriated to his parent department in Rajasthan
on 29.7.2013, because on 21.1.2013, the Government of Rajasthan
had refused to extend the period of his deputation and sought for his
repatriation. Consequently, the Central Government had written to
the NHAI on 10.04.2013 to take the necessary action. This led to his
W.P.(C)8412/2014 Page 2
repatriation.
5. Even though the CAT was apprised of all these events, it chose
to divert the reconsideration of the applicant’s record - effective as on
31.5.2013, and communicate to him the outcome of such
reconsideration vide order dated 6.11.2013. NHAI was directed to
reconsider the matter afresh in the light of the changed circumstances,
i.e., the improved record of the applicant.
6. The NHAI complied with this direction and by order/letter of
17.1.2014, rejected it by a speaking order. The relevant extract of the
speaking order made on the basis of the review selection committee’s
recommendations (a body comprised of 5 senior officials of the
NHAI) is as follows: -
“9. Whereas, the Review Selection Committee after
examining the Assessment Reports of Sh. Ashok Kumar
Gupta has stated that, in both the Assessment Reports of
Sh. Ashok Kumar Gupta, it has been mentioned that, Sh.
Gupta was associated with procurement and
implementation of four projects in the State of Odisha.
The Committee assessed the status of the progress of
these four projects as in November, 2012 and as in May,
2013. The Committee noted that, out of four projects, the
status of two projects was not satisfactory in November,
2012 and these two projects were still languishing in
May, 2013. Though, Sh. Gupta is not solely involved in
implementation of these projects, however, by his
performance, he could have contributed in better
progress of these 2 projects.
10. Whereas, the Review Selection Committee
considering the above and decided not to recommend Sh.
Ashok Kumar Gupta for absorption to the post of Deputy
General Manager (Tech) in NHAI.”
W.P.(C)8412/2014 Page 3
7. The applicant felt aggrieved and approached the CAT yet again
in OA 1418/2014; this time too, the CAT allowed the application.
This was based upon his assessment as recorded in the Minutes of the
Review Selection Committee. The CAT felt that the Committee was
asked to assess the applicant’s suitability for absorption based upon
his ACR grading as well as recommendations of his controlling
officer, and it was not within their competence to record their own
assessment about him. On the basis of this understanding, the
CAT quashed the speaking order and once again directed the NHAI to
reconsider the matter.
8. It was argued on behalf of the NHAI that the intervention of the
CAT is essentially into what is a policy decision - whether to absorb
an employee whose deputation has ended, and whose parent employer
has refused to extend the deputation. It is argued that having regard to
the overall record of the respondent, the CAT ought not to have
interfered with the administrative decision of the petitioner. It is
argued that the deputationist’s right to continue, much less seek
absorption, after the end of the deputation tenure is so tenuous, as to
be called non-existent. Barring manifestly perverse or arbitrary
orders, the third party employer, i.e., the borrowing organisation
cannot be compelled to continue with the employment a deputationist,
much less absorb him. He submits that the respondent was aware of
his tenure and conscious of the terms of engagement.
9. The applicant, on the other hand, urged through his counsel that
the impugned order should not be interfered with. It was contended
that regardless of the view expressed by the parent organisation in
W.P.(C)8412/2014 Page 4
January, 2013, the important circumstance was the subsequent
development on 31.5.2013 - whereby the applicant’s superior officer
within the NHAI upgraded his records. This had to be considered
objectively and in a fair manner. The NHAI’s attempt to stonewall the
applicant’s repeated request to continue within that organisation was
plainly arbitrary. Learned counsel submitted that according to the
prevailing instructions within the Central Government and its
establishment office, in such circumstances, irrespective of the wishes
of the parent employer - if the employee or deputationist is willing to
resign his lien and forgo the benefit of past employment with the
parent public employer, the borrowing organisation can absorb him or
her.
10. It can be seen from the above discussion that the applicant
continued on deputation in the NHAI from 2004. His tenure of
deputation was extended last in 2011. On 21.1.2013, his parent
department, i.e., the PWD, Rajasthan refused to extend his lien and
ordered him back. His request for permanent absorption within the
NHAI was also rejected. No doubt, subsequently his record was
upgraded on 31.5.2013. However, that did not in any way alter the
demand of the parent employer, based upon which, on 10.4.2013 the
Central Government even directed his repatriation along with other
employees. In these circumstances, this Court is of the opinion that
the CAT ought not to have ignored the important circumstance of his
repatriation being directed by the Central Government, which the
NHAI was bound to execute. Although this was apparently brought
to the notice of the CAT, it went ahead to pass directions in the first
W.P.(C)8412/2014 Page 5
round of litigation on 6.11.2013 - to the NHAI to reconsider the
matter. The reconsideration by the NHAI has unfortunately been set
aside bet again by the CAT in the impugned order.
11. The choice of the public employer – whether, or not, to absorb
the individual, is entirely based upon its discretion and its perception
about the utility, competence and efficiency of the deputationists. As
mentioned earlier, barring procedural failure in regard to the fair
consideration of the request for absorption - which necessarily has to
manifest from the records - the subject would be hardly one for
judicial review. If Courts or Tribunals were to intervene routinely in
such matters - as the CAT unfortunately did not once but twice over
in the present case, the efficiency and functioning of public
organisation would seriously be undermined. On the other hand, the
parent employer has repeatedly insisted that the applicant should
return to his duties. Not only has that organisation continued his
lien, but would have undoubtedly made arrangements in his absence
on a stop gap basis, and make do without a permanent officer. A
direction of the kind that the CAT has given in the impugned order
amounts to needlessly interfering with the discretion which otherwise
needs to be exercised judiciously after taken into consideration all
relevant factors. The manner in which the CAT went about
intervening repeatedly in this manner is rather unfortunate; we cannot
help but express this, and regret that such a situation has come to
pass.
12. For the forgoing reasons, the impugned order of the CAT is
hereby set aside. The writ petition is allowed, but, without any order
W.P.(C)8412/2014 Page 6
as to costs. A copy of this order shall be communicated to the
relevant Bench of the CAT through its Principal Registrar.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
DECEMBER 03, 2014
/vikas/
W.P.(C)8412/2014 Page 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 03.12.2014
+ W.P. (C) 8412/2014
NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Petitioner
Through: Ms. Aayushi Kiran with Ms. Tanupriya
Gupta and Mr. Mukesh Verma, Advocates.
versus
ASHOK KUMAR GUPTA ..... Respondent
Through: Mr. S.K. Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
S.RAVINDRA BHAT, J. (OPEN COURT)
1. Issue notice to the respondent. Mr. S.K. Gupta, Advocate
accepts notice on behalf of respondent. With consent, matter has been
taken up for disposal.
2. The petitioner feels aggrieved by an order of the Central
Administrative Tribunal (hereafter referred to as ‘CAT’) dated
11.09.2014 passed in OA 1418/2014. By that order, the NHAI has
been directed to reconsider the respondent/applicant’s case for
absorption.
3. The facts are that the applicant joined the National Highways
Authority of India (hereafter referred to as ‘NHAI’) as Manager
(Technical) on deputation. He is a permanent officer of the Public
W.P.(C)8412/2014 Page 1
Works Department, Rajasthan, holding lien in the cadre of the
Assistant Engineer (AE). His deputation was continued by the NHAI;
this arrangement was not objected to by the Rajasthan Government.
On 25.04.2007, the applicant was appointed as DGM (Technical).
This was for a period of four years. At that time, the Rajasthan
Government had extended its no-objection through a certificate issued
on 7.3.2009. The applicant’s deputation was further extended up to
31.10.2010 with approval of the Ministry controlling the NHAI. It
was not intended thereafter. The respondent responded to a Circular
dated 1.11.2012 - inviting applications from those working as DGM
(Technical) on deputation, for absorption. This application was
considered, but on the basis of the perceived poor record of the
petitioner/applicant, the NHAI refused to accept his request for
absorption. The applicant was aggrieved because, while his reporting
officer had apparently strongly recommended his case for absorption,
however, the competent authority thought otherwise. The applicant
approached the CAT complaining of arbitrary rejection of his request
because, in the meanwhile on 31.5.2013, there was an improvement
recorded in his performance for the relevant period. On the basis of
these materials the CAT directed NHAI to reconsider the issue.
4. An important event had occurred in the meanwhile, in that, the
applicant had been repatriated to his parent department in Rajasthan
on 29.7.2013, because on 21.1.2013, the Government of Rajasthan
had refused to extend the period of his deputation and sought for his
repatriation. Consequently, the Central Government had written to
the NHAI on 10.04.2013 to take the necessary action. This led to his
W.P.(C)8412/2014 Page 2
repatriation.
5. Even though the CAT was apprised of all these events, it chose
to divert the reconsideration of the applicant’s record - effective as on
31.5.2013, and communicate to him the outcome of such
reconsideration vide order dated 6.11.2013. NHAI was directed to
reconsider the matter afresh in the light of the changed circumstances,
i.e., the improved record of the applicant.
6. The NHAI complied with this direction and by order/letter of
17.1.2014, rejected it by a speaking order. The relevant extract of the
speaking order made on the basis of the review selection committee’s
recommendations (a body comprised of 5 senior officials of the
NHAI) is as follows: -
“9. Whereas, the Review Selection Committee after
examining the Assessment Reports of Sh. Ashok Kumar
Gupta has stated that, in both the Assessment Reports of
Sh. Ashok Kumar Gupta, it has been mentioned that, Sh.
Gupta was associated with procurement and
implementation of four projects in the State of Odisha.
The Committee assessed the status of the progress of
these four projects as in November, 2012 and as in May,
2013. The Committee noted that, out of four projects, the
status of two projects was not satisfactory in November,
2012 and these two projects were still languishing in
May, 2013. Though, Sh. Gupta is not solely involved in
implementation of these projects, however, by his
performance, he could have contributed in better
progress of these 2 projects.
10. Whereas, the Review Selection Committee
considering the above and decided not to recommend Sh.
Ashok Kumar Gupta for absorption to the post of Deputy
General Manager (Tech) in NHAI.”
W.P.(C)8412/2014 Page 3
7. The applicant felt aggrieved and approached the CAT yet again
in OA 1418/2014; this time too, the CAT allowed the application.
This was based upon his assessment as recorded in the Minutes of the
Review Selection Committee. The CAT felt that the Committee was
asked to assess the applicant’s suitability for absorption based upon
his ACR grading as well as recommendations of his controlling
officer, and it was not within their competence to record their own
assessment about him. On the basis of this understanding, the
CAT quashed the speaking order and once again directed the NHAI to
reconsider the matter.
8. It was argued on behalf of the NHAI that the intervention of the
CAT is essentially into what is a policy decision - whether to absorb
an employee whose deputation has ended, and whose parent employer
has refused to extend the deputation. It is argued that having regard to
the overall record of the respondent, the CAT ought not to have
interfered with the administrative decision of the petitioner. It is
argued that the deputationist’s right to continue, much less seek
absorption, after the end of the deputation tenure is so tenuous, as to
be called non-existent. Barring manifestly perverse or arbitrary
orders, the third party employer, i.e., the borrowing organisation
cannot be compelled to continue with the employment a deputationist,
much less absorb him. He submits that the respondent was aware of
his tenure and conscious of the terms of engagement.
9. The applicant, on the other hand, urged through his counsel that
the impugned order should not be interfered with. It was contended
that regardless of the view expressed by the parent organisation in
W.P.(C)8412/2014 Page 4
January, 2013, the important circumstance was the subsequent
development on 31.5.2013 - whereby the applicant’s superior officer
within the NHAI upgraded his records. This had to be considered
objectively and in a fair manner. The NHAI’s attempt to stonewall the
applicant’s repeated request to continue within that organisation was
plainly arbitrary. Learned counsel submitted that according to the
prevailing instructions within the Central Government and its
establishment office, in such circumstances, irrespective of the wishes
of the parent employer - if the employee or deputationist is willing to
resign his lien and forgo the benefit of past employment with the
parent public employer, the borrowing organisation can absorb him or
her.
10. It can be seen from the above discussion that the applicant
continued on deputation in the NHAI from 2004. His tenure of
deputation was extended last in 2011. On 21.1.2013, his parent
department, i.e., the PWD, Rajasthan refused to extend his lien and
ordered him back. His request for permanent absorption within the
NHAI was also rejected. No doubt, subsequently his record was
upgraded on 31.5.2013. However, that did not in any way alter the
demand of the parent employer, based upon which, on 10.4.2013 the
Central Government even directed his repatriation along with other
employees. In these circumstances, this Court is of the opinion that
the CAT ought not to have ignored the important circumstance of his
repatriation being directed by the Central Government, which the
NHAI was bound to execute. Although this was apparently brought
to the notice of the CAT, it went ahead to pass directions in the first
W.P.(C)8412/2014 Page 5
round of litigation on 6.11.2013 - to the NHAI to reconsider the
matter. The reconsideration by the NHAI has unfortunately been set
aside bet again by the CAT in the impugned order.
11. The choice of the public employer – whether, or not, to absorb
the individual, is entirely based upon its discretion and its perception
about the utility, competence and efficiency of the deputationists. As
mentioned earlier, barring procedural failure in regard to the fair
consideration of the request for absorption - which necessarily has to
manifest from the records - the subject would be hardly one for
judicial review. If Courts or Tribunals were to intervene routinely in
such matters - as the CAT unfortunately did not once but twice over
in the present case, the efficiency and functioning of public
organisation would seriously be undermined. On the other hand, the
parent employer has repeatedly insisted that the applicant should
return to his duties. Not only has that organisation continued his
lien, but would have undoubtedly made arrangements in his absence
on a stop gap basis, and make do without a permanent officer. A
direction of the kind that the CAT has given in the impugned order
amounts to needlessly interfering with the discretion which otherwise
needs to be exercised judiciously after taken into consideration all
relevant factors. The manner in which the CAT went about
intervening repeatedly in this manner is rather unfortunate; we cannot
help but express this, and regret that such a situation has come to
pass.
12. For the forgoing reasons, the impugned order of the CAT is
hereby set aside. The writ petition is allowed, but, without any order
W.P.(C)8412/2014 Page 6
as to costs. A copy of this order shall be communicated to the
relevant Bench of the CAT through its Principal Registrar.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
DECEMBER 03, 2014
/vikas/
W.P.(C)8412/2014 Page 7