AI Structured Summary
Not yet generated for this judgment
Judgment
Permod Kohli, J
The reliefs sought and facts in both the OAs being identical, the same are being disposed of by this common order.
2.1 The facts are being noticed from OA No. 1564/2015. The applicant in this OA, namely K.V. Sebastian, was initially appointed as Senior Research Officer in the Telecom Regulatory Authority of India (hereinafter referred to as "TRAI") on deputation from the Ministry of Home Affairs on 05.10.1999. It is stated that the applicant was offered permanent absorption in TRAI cadre in 2003 based on the Telecom Regulatory Authority of India (Officers and Staff Appointment) Regulations, 2001 (hereinafter referred to as the "Regulations 2001") notified by TRAI on 15.02.2001 and the Telecom Regulatory Authority of India (Salary, Allowances and other conditions of Service of the Officers and employees) Rules, 2002 notified by the Department of Telecommunication on 25.10.2002. The applicant was later selected for appointment to the post of Deputy Advisor in TRAI and came to be appointed on the said post on 30.07.2004. Subsequently, he was permanently absorbed in TRAI on the post of Deputy Advisor w.e.f. 05.10.2004 on acceptance of his resignation from the parent cadre, i.e. Ministry of Home Affairs. The next promotional post in TRAI was Joint Advisor under the Regulations 2001. For promotion to the post of Joint Advisor, four years of regular service in a grade immediately below was prescribed as eligibility criteria. It is also stated that the applicant was eligible for counting his service in TRAI on the post of Deputy Advisor from the date of his initial appointment and thus, the applicant became eligible for promotion to the post of Joint Advisor w.e.f. 30.07.2008. The applicant was found suitable for promotion to the post of Joint Advisor. He was accordingly promoted against the available vacancy vide TRAI Office Order dated 24.12.2008 with effect from the assumption of office on or after 01.01.2009.
2.2 The Regulations Regulation, namely the (Officers and Staff 2001 were amended and Amended Telecom Regulatory Authority of India Appointment) (Seventh Amendment) Regulations, 2008 were notified in the Gazette of India on 31.12.2008 (hereinafter referred to as the "Seventh Amendment Regulations, 2008). By virtue of this Seventh Amendment Regulations, 2008, changes were made with regard to the mode of recruitment to the posts of Secretary, Principal Advisor, Advisor and Joint Advisor and these posts are to be filled up by deputation/absorption/direct recruitment, instead of promotion.
The following further stipulation was made:-
"(iii) Officers borne on the cadre of TRAI and possessing requisite qualifications and experience for the posts of Secretary, Principal Advisor, Advisor and Joint Advisor shall also be eligible for consideration for appointment to these posts alongwith outside candidates for appointment on deputation, absorption or direct recruitment on the basis of combined evaluation of the candidate‟s performance in the interview and his/her qualifications/job experience by the Selection Committee.
2.3 Note 4 below Schedule 1 was also appended with the Seventh Amendment Regulations, 2008 which reads as under:-
"Note 4.---The persons appointed before the commencement of the Telecom Regulatory Authority of India (Officers and Staff Appointment) (Seventh Amendment) Regulations 2008, and holding post in the feeder grade, shall continue to be considered for promotion to such next higher post and all other provisions of the Telecom Regulatory Authority of India (Officers and Staff Appointment) Regulations, 2001 (2 of 2001), as they stood before such commencement, shall continue to apply to such persons appointed before such amendment."
2.4 It is stated that the Seventh Amendment Regulations, 2008 adversely changed the terms and conditions of the services of TRAI cadre employees.
2.5 It is also stated that despite vacancies existing in 2008 and selection having taken place and concluded in 2008 with the issuance of promotion order on 24.12.2008, the promotion of the applicant was made effective from 01.01.2009 in illegal and arbitrary manner and with malicious intention. For promotion to the post of Advisor in TRAI, again four years of regular service was required on the post of Joint Advisor. It is stated that the applicant having completed four years of regular service, became eligible for promotion to the post of Advisor in TRAI w.e.f. 01.01.2013. The applicant was not considered for promotion to the post of Advisor on account of amended regulations. However, the applicant applied for his consideration for appointment to the post of Advisor in TRAI on the basis of the Seventh Amendment Regulations, 2008. The applications were invited for the post of Advisor (Economic) on deputation in TRAI (Headquarter) vide Circular No.1-21/2012-A&P dated 06.12.2012. The applicant applied for the post and was called for interview. Further applications were invited for the post of Advisor/Principal Advisor (Admn.) on deputation on foreign service terms in TRAI (Headquarter) vide another circular dated 04.02.2013. The applicant again applied for the post of Advisor (Admn.). However, he was not called for interview. The applications were again invited for the post of Principal Advisor (Financial and Economic Analysis) on deputation basis in TRAI on 20.08.2014. Since the applicant was not eligible, he did not apply. Again applications were invited for the post of Advisor (Financial & Economic Analysis) on deputation basis in TRAI vide circular dated 12.02.2015. The applicant also submitted his application and was called for interview on 07.04.2015. The applicant was, however, not selected/appointed against the circulars dated 06.12.2015 and 12.02.2015.
2.6 The applicant is claiming his promotion to the post of Advisor in accordance with the Regulations 2001. This OA has been filed seeking following reliefs:-
"(i) Direct the respondent to convene the DPC/Selection Committee to consider the case of the applicant for promotion to the post of Advisor as on the due date in terms of the Telecom Regulatory Authority of India (Officers and Staff Appointment) (Seventh Amendment) Regulations, 2008 read with the Telecom Regulatory Authority of India (Officers and Staff Appointment) Regulation, 2001.
(ii) Direct the respondent to promote the applicant to the post of Advisor as on the back date on which the applicant became eligible for promotion, in case the recommendations of DPC/Selection Committee are in his favour alongwith all consequential benefits like arrears of salary and allowances, service etc. taking into account the fact that the applicant was promoted to the post of Joint Advisor on the basis of the Telecom Regulatory Authority of India (Officers and Staff Appointment) Regulation, 2001 and the fact that vacancies of Joint Advisor was existing in the year 2008 and even if required by ante dating his date of promotion to the feeder post of Joint Advisor.
(iii) To grant any other relief as may be deemed fit and proper under the circumstances of the case along with cost of the application.
(iv) To call for the records of the case and quash and set aside the selection process and appointment of respondent no.2 and 3 as Advisor (Financial & Economic Analysis) on deputation basis with reference to the vacancy Circular dated 12.02.2015."
During pendency of this OA, the respondent nos. 2 and 3 were selected and appointed as Advisor in pursuance of Circular dated 12.02.2015. The applicant, accordingly, sought amendment of the OA so as to implead and challenge the selection of appointees, i.e. respondent nos. 2 and 3. This amendment was allowed by this Tribunal vide order dated 18.05.2015.
OA No. 1540/2015 has been filed by Shri Shaji Abraham. The applicant in this case was also appointed as Senior Research Officer in the TRAI on deputation from the Ministry of Finance, Department of Economic Affairs on 04.10.1999. The applicant was offered permanent absorption in TRAI on the basis of same regulations and rules as in the case of applicant in OA No. 1564/2015. The applicant was permanently absorbed in TRAI on the post of Senior Research Officer w.e.f. 09.06.2004 on acceptance of his resignation from the parent cadre by Ministry of Finance, Department of Economic Affairs. The applicant was also selected to the post of Deputy Advisor in TRAI and was appointed on the said post on 06.10.2004. He was later promoted to the post of Joint Advisor vide TRAI Office Order dated 24.12.2008, but his promotion was also made effective w.e.f. 01.01.2009.
Counter affidavit has been filed on behalf of respondent no.1. The respondent, while denying the claim of the applicant, stated that under the Seventh Amendment Regulations, 2008, promotion is no longer a mode of recruitment to the post of Advisor w.e.f. 31.12.2008 , i.e the date of coming into force of the Seventh Amendment Regulations, 2008. Under the Seventh Amendment Regulations, 2008, the modes of recruitment to the post of Advisor were altered from promotion / deputation/ absorption/direct recruitment to deputation/absorption/direct recruitment. It is further stated that for the existing employees of the TRAI as on 31.12.2008, i.e. the date of notification of Seventh Amendment Regulations vide, vide Clause 16 (m) Note 4 in Schedule 1, a saving clause was provided so as to be fair to the existing employees of the TRAI. Referring to Note 4 reproduced hereiabove, it is stated that the applicant was promoted to the grade of Joint Advisor in the Authority vide Office Order dated 24.12.2008 with effect from assumption of office on or after 01.01.2009. It is further stated that in the Government and Statutory Authorities, in many cases, DPC for promotion is held well in advance and promotion is granted from a later cut off date. The respondent no.1 further has stated that vide order dated 09.01.2006, a Committee comprising Secretary, Principal Advisor (Legal), Principal Advisor (F&A) and Advisor (A&P) was constituted to look into all service matters of employees of TRAI and revisiting the 2001 Regulations. The Committee‟s recommendations were to be submitted by 30.01.2006. The Committee‟s report was put up for approval on or around 21.03.2006. One of the key recommendations of the Committee was that the crucial date for determining the eligibility for promotion to any post in TRAI should be taken as the first day of the year i.e. January 1st, irrespective of whether ACRs were written financial year-wise or calendar year-wise. After the approval of the report of the Committee, this recommendation of the Committee was followed by TRAI for the future promotions. In the case of the applicant too, the DPC was held earlier and the promotion was to be effected only on or after 01.01.2009 as per the internal policy of the Authority regarding promotions. It is also mentioned that this is the system that has been followed by the Authority over the years in respect of promotions and other employees of the Authority. The applicant was accordingly promoted w.e.f. the 1st of January and he assumed the charge of the post of Joint Advisor w.e.f. 01.01.2009. It is also the case of the respondent that the applicant was not holding the post of Joint Advisor as on 31.12.2008, the date on which the Seventh Amendment Regulations, 2008 came into force and thus, he was not eligible to be considered for promotion to the post of Advisor on the relevant cut off date, i.e.. 31.12.2008 based upon the saving clause under Note 4 of the Seventh Amendment Regulations, 2008, thus the applicant was not eligible under Note 4. He applied under Circular dated 12.02.2015 for deputation/direct recruitment and was called for interview. However, he was not found suitable for the post and now, he is seeking promotion to the post of Advisor through the promotion method. The allegations of the applicant in respect to the denial of promotion to him have been denied by the respondent. It is also mentioned that the applicant has no vested right to be selected for the post of Advisor whether on the basis of promotion or on the basis of selection through an interview process in pursuance of an advertisement. The posts of Advisor are filled up on deputation basis on the basis of experience, qualifications, service records of the candidates and interviews conducted by the Selection Committee headed by the Chairperson, TRAI. Merely that the applicant has requisite qualifications and years of experience in TRAI and outstanding/very good performance records, this in itself does not ensure selection to the post of Advisor. The selection to the post of Advisor is done by the Selection Committee from amongst the best suitable candidates who appeared for the interview. It is also the case of the respondent that the applicant is seeking promotion on the basis of events that happened many years back and have not been challenged by him. The applicant never challenged the decision of the Authority to promote him w.e.f. 01.01.2009 and now after more than six years, he cannot seek to reopen/challenge the events that transpired many years back.
The applicant has filed his rejoinder to the counter affidavit. While reiterating the averments made in the OA, the applicant has further relied upon the DoP&T OM dated 08.09.1998 (Annexure R/2 of the Reply). It is stated that the respondent has not claimed in the reply that it is bound by this DoP&T OM. It is stated that there was no approved policy in TRAI relating to the crucial date of eligibility for promotion till 19.03.2009 on which date the competent authority has approved such a policy. The applicant‟s promotion to the post of Joint Advisor took place much before that and the policy has not even today been incorporated in the statutory rules and has no legal force. It is stated that immediately after the issue of OM dated 08.09.1998, the DoP&T issued another OM dated 17.09.1998 instructing all Ministries/Departments to amend the recruitment/service rules incorporating the crucial date of 1st of January which instruction is still not adhered to by the respondent. Thus, the reliance of the respondent on the crucial date of eligibility is totally misplaced. It is further stated that the crucial date is either the date of DPC or the date on which DPC proposal has been approved by the competent authority and in case of the applicant, the DPC minutes were approved by the competent authority on 22.12.2008 and the appointment order was issued on 24.12.2008. It is also claimed that the right of promotion is protected under Note 4 of the Seventh Amendment Regulations, 2008. In respect to the selection held in the year 2015, it is state that the selection was to be based upon combined evaluation of three criteria, namely (i) performance in the interview; (ii) qualifications; and (iii) job experience. Referring to the minutes of the Selection Committee dated 07.04.2015, it is stated that the criteria as prescribed under the Seventh Amendment Regulations, 2008 have been given a complete go by. It is stated that no reasoning has been mentioned as to how the merit of the candidates were ascertained. The individual performance of the candidates as can be captured from the ACRs and marks to be given in the interview have not been indicated. In absence of such consideration, the whole selection process is said to be ab initio null and void being per se arbitrary. It is stated that the Selection Committee has misdirected itself in not taking into account the criteria as spelt out in the Seventh Amendment Regulations, 2008. It is further mentioned that the scope of arbitrariness and abuse of power is more in the instant case as the Selection Committee and the competent authority to accept the recommendations of the Selection Committee is essentially the same person.
The respondent no.1 has filed an additional affidavit in response to the rejoinder filed by the applicant. In this additional affidavit, the respondent has stated that the Telecom Regulatory Authority of India (Officers and Staff Appointment) Regulations, 2001 came into existence from the year 2001. However, the regular cadre of the TRAI was formed in the year 2003-04. Prior to that, most of the officers/officials in TRAI were on deputation. Due to such a small cadre, the possibility of any anomaly or dispute about the crucial date of eligibility for promotion at that stage was minimal. However, with the passage of time, for expansion of the TRAI cadre and the benefit of the organization, a need was felt to re-visit the service conditions of employees of TRAI. Accordingly, on 09.01.2006, a Committee was constituted with set terms of reference, its report was accepted by the authority, which culminated into Seventh Amendment in the Regulations of 2001. It is further mentioned that prior to 19.03.2009, promotion was being considered only against available vacancies on a particular date, i.e. 1st of January, which was on the basis of the recommendations of the Committee. This was a major disincentive and demotivating factor for the employees of TRAI and the employees requested TRAI to hold the DPC twice a year. The Authority accordingly, vide its resolution dated 19.03.2009, unanimously decided as under:-
"the crucial date for determining the eligibility of officers/staff for promotion in the TRAI cadre would be 1st January. However, the eligibility could also be determined on 1st of July of the year if there is a clear vacancy which can be filled on the basis of promotion after considering the suitability and merit by the Selection Committee."
Based upon the aforesaid resolution, it is stated that promotions are being made in TRAI either from 1st of January, or 1st of July from the date of approval of the recommendations of the DPC by the competent authority, whichever is later. It is further stated that the applicant was promoted to the grade of Joint Advisor in the Authority vide order dated 24.12.2008 with a clear stipulation that the promotion shall be effective from assumption of office on or after 01.01.2009. The applicant assumed the charge of Joint Advisor w.e.f. 01.01.2009. This promotion was in accordance with the regulations in force at that time. The applicant is not entitled to the benefit of the saving clause under Note 4 of the Seventh Amendment Regulations. The applicant has accepted his promotion w.e.f. 01.01.2009 without any objection and has not challenged the order. As such, he is barred by law of estoppel by his own act or conduct. The applicant has also never challenged the regulations and at this belated stage, after more than six years, he cannot seek to reopen/challenge the event that transpired many years back and has attained finality. In respect to the averments made in the rejoinder regarding promotion of Shri S.K. Dutta, it is stated that the said promotion was made in relaxation of the rules. The appointment of Shri S.K. Dutta to the grade of Joint Advisor was also challenged by one B.R. Bhardwaj in OA No. 84/2013 which was dismissed vide judgment dated 20.04.2015. It is also stated that the applicant cannot challenge the process of selection for the post of Advisor after appearing for the interview and being rejected. If at all the applicant had a grievance with the process of selection, he should have challenged the advertisement issued for the post instead of applying for it and then appearing for the interview.
We have heard the learned counsel for the parties at length and perused the record produced. The claim of the applicant is in two fold: (a) he has been denied promotion from the post of Joint Advisor to the post of Advisor in violation of the 2001 Regulations; and (b) his consideration in the selection process held in 2015 for selection to the post of Advisor is in contravention of the laid down norms.
Insofar as the first part of the arguments of learned counsel for the applicant is concerned, the entire emphasis is on the basis of denial of promotion to the post of Advisor in the year 2008 by illegally incorporating stipulation in the appointment order dated 24.12.2008 that the applicant would be appointed from the date of assumption of charge on or after 01.01.2009. Admittedly, the applicant was promoted as Joint Advisor vide Office Order dated 24.12.2008 which contained following stipulation:-
"The competent authority has approved the promotion in respect of the following Deputy Advisors (PB-3 Rs.15600-39100 + GP Rs.7600) to the grade of Joint Advisor (PB-4 Rs.37400-67000+GP Rs.8700) with effect from assumption of office on or after 01st January 2009:
(i) Shri K.V. Sebastian, Deputy Advisor (Eco)
(ii) Shri Shaji Abraham, Deputy Advisor (Interconnection)"
Pursuant to the aforesaid order, the applicant joined the post of Joint Advisor on 01.01.2009 itself. The applicant never disputed nor challenged the stipulation contained in the aforesaid order that the promotion order would take effect on or after 01.01.2009. He continued to serve on the post of Joint Advisor till he completed four years of service and claimed to be eligible for the post of Advisor, i.e. next promotional post. It is not in dispute that on 31.12.2008, the Recruitment Rules were amended and the post of Advisor ceased to be a promotion post. The post of Advisor could only be filled up by deputation/absorption/direct recruitment. Two circulars dated 06.12.2012 and 12.02.2015 were issued for inviting applications for the post of Advisor (Economic)/(Financial and Economic Analysis) on deputation basis. The applicant applied against these posts. He was called for interview but was not selected. Another circular dated 04.02.2013 was also issued inviting applications for the post of Advisor/Principal Advisor (Admn.) on deputation basis. The applicant applied for the post of Advisor (Admn.) but he was not called for interview. Unfortunately, the applicant never challenged the selection either in the year 2012 or 2013. It was only when the respondent nos. 2 and 3 were selected and appointed as Advisor pursuant to the circular dated 12.02.2015, the applicant filed an application seeking amendment so as to challenge the appointment of respondent nos. 2 and 3 and the amended OA has been filed. From the perusal of the amended OA, we find that except seeking quashment and setting aside of the selection process and appointment of respondent nos. 2 and 3 in the prayer part, no specific averment has been made in the OA nor any specific ground to challenge the appointment of respondent nos. 2 and 3 has been taken. The entire emphasis of the applicant is for his promotion to the post of Advisor on the basis of un-amended Regulations, 2001 or protection available to him under Note 4 of the Seventh Amendment Regulations, 2008. It is pertinent to note that even the Seventh Amendment whereunder one of the mode of appointment to the post of Advisor, i.e. promotion was taken away, has not been challenged in the present OA. Non-challenge to the stipulation contained in the order of promotion of the applicant as Joint Advisor dated 24.12.2008 , failure to challenge the recruitment rules and failure to challenge the selection of respondent nos. 2 and 3 are all fatal to the claim of the applicant in this OA. The stipulation that the promotion of the applicant as Joint Advisor would take effect from 01.01.2009 or thereafter was made about more than six years back and was never called in question by the applicant. Even in the present OA, the said stipulation has not been challenged and after such a long period of more than six years, the applicant is not entitled to question the validity of the said stipulation, that too, without assailing the same in the present OA. It is settled law that regulation framed under statute has force of law, as has been held in Vidya Dhar Pande v. Vidyut Grih Siksha Samiti & Ors.(1988)4 SCC 734. Amendment to the Regulations, 2001 vide Seventh Amendment notification dated 31.12.2008 whereunder the promotional source to the post of Advisor has been taken away, is not under challenge. In absence of there being any challenge, the Tribunal cannot examine the validity of the said Amendment Regulations. In the case of S.S. Moghe & Ors. v. Union of India & Ors. (1981)3 SCC 271, the Apex Court has held that it is within the competence of the Government to decide as a matter of policy the sources from which the personnel required for manning the Service are to be drawn. The applicant has, however, placed reliance upon Note 4 of the Amended Regulations whereunder existing employees have been granted the right of promotion provided the person is holding the post in the feeder cadre on the date of notification. As noticed above, this notification came into being on 31.12.2008. The feeder channel for the post of Advisor is Joint Advisor. On this date, the applicant was not holding the post in the feeder grade, as his promotion to the post of Joint Advisor, though made vide order dated 24.12.2008, became effective only on 01.01.2009 and thus, the applicant is not entitled to the benefit of Note 4 as claimed by him. Learned counsel for the applicant has laid much emphasis on the plea that the post of Joint Advisor was available on 30.07.2008, the DPC was held on 22.12.208 and the promotion order was also issued on 24.12.2008 and thus, promotion of the applicant should be either from the date of holding of the DPC or when the promotion order was issued. The applicant has, however, not challenged the condition contained in the promotion order whereunder he was directed to be promoted w.e.f. 01.01.2009. As a matter of fact, the applicant assumed the charge of post on 01.01.2009 and thus, he held the post of Joint Advisor only on 01.01.2009. The interpretation sought to be placed by the applicant that he is deemed to have been promoted on 22.12.2008 or 24.12.2008 cannot be accepted. In State of Haryana v. Subhash Chander Marwaha & Ors, (1974)3 SCC 220, it has been held by the Hon‟ble Supreme Court that mere existence of vacancies does not give a legal right to a candidate to be selected for appointment. The prayer of the applicant that his promotion may be made ante dated, is also without any substance particularly when the applicant has himself assumed the charge on 01.01.2009.
Regarding the second question, except making the prayer for setting aside the selection and appointment of respondent nos.2 and 3, there is no averment in the OA as to in what manner the selection is bad. In any case, we have perused the selection record. A meeting of the Selection Committee comprising the Chairperson, TRAI and Member (V), TRAI, was held on 07.04.2015 to hold the interview of candidates for selection to the post of Advisor (F&EA) on deputation on foreign service terms. The applications of ten eligible candidates were received through proper channel, including the applicants in the present OAs. A comparative statement of their respective ACRs was placed before the Selection Committee. The applicant - K.V. Sebastian in OA No. 1564/2015 had four outstanding‟ and one very good‟ grading of his five year ACRs. The applicant-Shaji Abraham in OA No. 1540/2015 had three outstanding‟ and two very good‟ gradings, whereas respondent no.2-Vinod Kotwal had 10, 9.4, 10/9, 9/10 and 10 grading in the ACRs, which is almost at the top of the numerical grading equaling to outstanding. Similarly, respondent no.3 also - Sanjeet Singh had 9.5, 9.5, 9.2, 8.975/8.24 (outstanding) and one outstanding‟ grading in his ACRs. As such, respondent nos. 2 and 3 have definitely better gradings in their ACRs than the applicants in the present OAs. The Selection Committee has recommended the private respondent nos.2 and 3 for the post of Advisor on the basis of ACRs grading, experience and interview. It is true that from the record of the Selection Committee, we find that no separate marks have been awarded to the candidates. Now the question arises whether it was necessary for the Selection Committee to have awarded separate marks for each parameters of consideration. The amended rules require the Selection Committee to consider the candidates on the basis of combined evaluation of three criteria, namely (i) performance in the interview; (ii) qualifications; and (iii) job experience. There is no stipulation in the rules which, inter alia, prescribe any total marks or separate marks for each of the parameters required to be considered for evaluation of the candidate. Rather it is a combined evaluation. We do not find any legal infirmity in the combined evaluation of the candidates merit by the Selection Committee, particularly in view of the rule position which, inter alia, requires a combined evaluation by taking into consideration the prescribed parameters. The Selection Commission comprised of the highest authorities in the organization. No mala fide has been alleged against any of the members of the Selection Committee. In Union of India & Ors. v. Bikash Kuanar, (2006) 8 SCC 192, it has been held by the Apex Court that when a Selection Committee recommends selection of a person, a presumption arises with regard to the correctness of the official act. There has been no violation or contravention of any statutory rule or laid down norms. The applicants participated in the selection process and competed against 8 other candidates. Though the ACRs of the applicants are also outstanding‟ and very good‟, however, the selectees have better gradings. Under these circumstances, we find no merit in these OAs which are accordingly dismissed without any order as to costs.