JUSTICE D. DASH JUSTICE v. NARASINGH DATE OF FINAL HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5820 of 2021 In the matter of an application under Article 226 & 227 of the Constitution of India. 1)Ashok Kumar Pradhan 2) Sheikh Fakiruddin 3) Dillip Kumar Pradhan ------------------ …. Petitioners -versus- 1) Union of India 2) National Highways Authority of India 3) Bhaskar Chandra Mishra 4) Manas Kumar Pani 5) Lokanath Prasad Bhagat 6) Shiv Kumar Jaiswal 7) Ranjay Kumar Das 8) Rohit Kumar 9) Narayana Sarode 10) Sudhir Kumar Singh 11) Dipesh Gunvant Shah 12) Ghateshwar Majhi 13)Anil Kumar 14) Mahendra Kumar Solanki 15) Rakesh Kumar 16) Prem Ram Choudhury 17) Mathurananda Seth 18) M. Venkateswara Rao 19) B. Somasundaram 20) Nitesh Srivastava 21) Harshad Chauhan 22) Madhur Dhanderwal 23) Gyanendra Kumar 24) Sanjay Kumar Sahu …. Opposite Parties Page 1 of 30 For Petitioners For Opposite Parties : : Mr. Budhadev Routray, Sr. Advocate Mr. P.K. Parhi, DSGI for UOI Mr. Abhay Kumar Behera & Mr. Durga Prasad Nanda, Sr. Advocates appearing along with Ms. Payal Roy, Adv. for NHAI (O.P. No.2) Mr. M. K. Mishra, Sr. Advocate along with Mr. T. Mishra, Advocate (O.P. Nos.3 to 15) Mr. Swapna Ku. Ojha, Advocate (O.P. Nos.16 to 24) CORAM: JUSTICE D. DASH JUSTICE V. NARASINGH DATE OF FINAL HEARING :22.07.2024 DATE OF JUDGMENT: 08.10.2024 V. Narasingh, J. 1. In this writ petition under Article 226 and 227 of the Constitution of India, the petitioners assail the order dated 13.05.2020 at Annexure-4 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack (herein after referred to as “CAT”) whereby Original Application bearing Number O.A. No. 260/00510/2019 filed by the petitioners, application has been dismissed, rejecting the petitioners‟ prayer for regularization of their services from the date of completion of five years of continuous service under the Opp. Party No. 2 establishment (NHAI). Page 2 of 30 The petitioners have approached this Court with the following prayer: the other to why “i) Admit the writ application. ii) Call for the record. iii) Issue Rule Nisi calling upon the opposite parties to impugned order dated show cause as 13.05.2020 passed by the learned Tribunal in O.A. No. 260/510 of 2019 under Annexure-4 shall not be quashed. iv) If the opposite parties do not show cause or show insufficient cause issue a writ in the nature of certiorari or any order/orders, appropriate writ/writs, direction/directions quashing the order dated 13.05.2020 passed by the learned Tribunal in O.A. No. 260/510 of 2019 under Annexure-4. v) Issue a writ in the nature of mandamus or any other appropriate writ/writs directing the opposite party No.2 to regularize the services of the petitioners on completion of five years of continuous service in NHAI from the date of initial appointment along with all their consequential service benefits including promotion to the post of Manager (F&A) at par with six numbers of employees who were appointed in the year 1999 and got promotion w.e.f. May 2012.” respective 2. At this juncture it may be noted that the petitioners by filing the aforesaid OA No. 260/00510/2019 before learned CAT, challenged the action of the Opp. Parties/NHAI regularizing their service prospectively w.e.f. 1st June, 2018 instead of regularizing them from the date of completion of five years of service in the post of Jr. Accounts Officer w.e.f. 2005. 2-A. The preliminary ground of challenge to the order of the Learned Tribunal rests upon the argument that even though the similarly circumstanced employees who were appointed in the year 1999 on contractual basis like the petitioners were regularised in the normal course whereas the petitioners continued on contract basis till 2018 when their services were regularised. Accordingly, the petitioners Page 3 of 30 have claimed regularisation and promotion with retrospective effect at par with the other appointees who were allegedly similarly placed. 3. Heard Mr. B. Routray, learned Senior Advocate for the petitioners and Mr. P. K. Parhi, DSGI for UOI, Mr. Abhay Kumar Behera and Mr. Durga Prasad Nanda, Sr. Advocates appearing along with Ms. Payal Roy, Adv for NHAI, Mr. Manoj Mishra, Sr. Advocate along with Mr. Tanmay Mishra Advocate for Opposite Party Nos.3 to 15 and Mr. S. K. Ojha, advocate for Opposite Party Nos.16 to 24. 4. Before adverting to the rival submissions made by the
Legal Reasoning
learned counsels, it is apt to note the facts germane for just adjudication, which runs thus:- 4-A. The Opp. Party-NHAI had issued advertisement on 16.07.1997 (Annexure-1 of the Counter filed by the NHAI before CAT) for recruitment of 3 nos. of Accountants and such advertisement was finalised and however the appointment orders were issued in favour of 7 persons for appointment as Accountant on regular basis as per designated pay scale, based on the interview held on 15.02.1999 to meet immediate requirement of NHAI vis-a-vis the accountants. Thereafter, the appointment orders were issued on 01.03.1999 and these 07 persons joined as Accountant in NHAI on the appointed dates and upon completion of successful probation, their services were confirmed/regularised with effect from their date of Joining on regular basis i.e. the date of completion of probation. 4-B. Subsequently, it was decided by the Board of NHAI in its 27th Board Meeting held on 25.01.2000 to engage the Accountants and Secretarial staff on contract basis. Accordingly, all the employees i.e. Accountant/Steno were appointed on contract basis. Page 4 of 30 4-C. To meet the urgent requirement of Secretarial staffs like Accountants, the Opp. Party No.2-NHAI issued further advertisement and invited applications from the eligible candidates for contractual appointment for selection and appointment on All India basis for 29 posts on contract basis and subsequently for further 12 nos. of posts purely on contract basis for a period of 2 years with consolidated remuneration, stipulating last date of submission of application by 10.01.2000 and 30.06.2000, respectively. The said advertisements are at Annexure-A/3 of the OA filed before the learned Tribunal. 4-D. Pursuant to such Advertisement, the present petitioners and similarly situated (Private Opp. Parties who are at Sl No.3 to 24) also were appointed as accountant on contract basis in the NHAI for a period of 2 years. Subsequently, their services/contracts were renewed from time to time with consolidated pay. 4-E. As per Policy, in terms of order dated 25.06.2008, on completion of five years of services, all the accountants who were appointed in the year 1999 on regular basis were granted upgradation as Junior Accounts Officer (Now Assistant Manager (F&A) vide office order dated 20.08.2008. In case of Accountant who were appointed in the year 2000 on Contract basis they were upgraded on consolidated remuneration as Junior Account Officer vide above mentioned office order. Subsequently, the vacancies for the post of Manager (F&A) requirement with criteria for promotion as 5 years regular service in GP Rs.5400 or 06 years regular service in GP Rs.4800 were advertised in which the internal candidate (6 Accountants) appointed on regular basis had also applied and after following the recruitment procedure they were promoted as Manager (F&A) w.e.f. May, 2012, as per RR (recruitment Regulation) Policy of 2011. Page 5 of 30 Admittedly, said promotion was not challenged by the petitioner. 5. Since the petitioners and other similarly situated persons even though posted as Jr. Accountant officer on contract basis and were allowed with the regular scale of pay with GP Rs.4800/- and had completed six years of service were not considered for promotion on the ground that their services were not declared as regular, the petitioners and similarly situated persons submitted their grievances. And, the Board of Directors, Opposite Party No.2-NHAI, Board of Directors considered the proposal of regularization of long term contract employees in their agenda No. 9 of 93rd meeting dtd. 26.3.2013 and agenda no.7 of the 95th Board Meeting dtd. 14.8.2013, wherein it was resolved that a scheme for regularization of the contractual employees of financial and secretarial cadre should be framed and accordingly in the 102nd Board meeting dtd. 17.11.2014 the proposal for regularizing long term contractual services was approved in form of a onetime scheme. 6. After due deliberation a scheme namely NHAI (Recruitment, Seniority and Promotion) Amendment Regulations, 2015(Regulation 2015) was formulated and notified in Gazette Notification on 07.01.2015. 7. The present petitioners filed OA No.3031/2015 before the CAT, Principal Bench, Delhi, with a prayer to complete the process of regularization in terms of the statutory regulation dated 07/01/2015 at Annexure-A/17 of OA. (Referred to in paragraph-31) 8. All of them submitted to the assessment made by the Selection Committee as stipulated in Regulation 13 A (1) (m) of the Regulation, 2015 being conscious of the stipulations in Regulation 13 A Page 6 of 30 (1) (f) that regularization shall have prospective effect i.e. from the date of orders of regularization. The Selection Committee admittedly assessed the petitioners in the year 2018 and by order dated 04.06.2018 the services of the Petitioners were regularised prospectively from the date of such order. 9. Thereafter, the petitioner submitted their representation dated 19.03.2019 to the Opposite Party No.2-NHAI to antedate their regularisation w.e.f. date of completion of 5 years of their service. 10. In the mean time, on 28.03.2019 the Opp. Party/NHAI issued advertisement to fill up 41 nos. posts in the grade of Manager (F&A) on deputation basis, which was challenged by the petitioners in Original Application No.510/2019 filed before CAT, Cuttack Bench, Cuttack, praying for a direction to treat their services as regular on completion of five years of service at par with the Accountants appointed in the year, 1999 in NHAI and also for grant of consequential promotions and other service benefits and declare that part of the regularisation order dtd.04.06.2018 as arbitrary, unreasonable and discriminatory in ignoring their past service. 11. The Opp. Party/NHAI filed its counter before the learned CAT, Cuttack Bench, Cuttack, specifically pleading that the present petitioners who were the applicants cannot be equated with the Accountants who were appointed in the year, 1999 in NHAI, as they are appointed as regular Accountants, whereas the petitioners and similarly situated persons were appointed on contractual basis and continued as long term contract Employee and they have no legal right to claim regularisation and further promotions to the higher cadres more so since they were regularised on 4.6.2018 w.e.f 1.6.2018. Further, as they had not completed five years of regular services in the cadre of Junior Page 7 of 30 Accounts Officer, they are not eligible to claim for further promotion in the higher grade as per the Recruitment Regulation, 2016. The NHAI in a tabular form by making a comparative statement clarified the disparity between the two sets of appointees i.e. 1999 and 2000. For convenience of reference said comparative statement is culled out hereunder:- 1999 a) b) 2000 a) The advertisement dt.16.7.1997 was issued for regular appointment with proper pay scale without mentioning any contractual engagement duration in the same. However, in terms of the prevailing policy since appointment was to be given based upon verification of credentials as well as other administrative procedures like verification, police health verification, etc. that The stated advertisement itself the appointment to be given is purely on contract basis for a period of 02 years and with a consolidated pay, the advertisement unlike clearly dt.16.7.97 which the mentioned that appointees shall get the and consolidated allowances as per Central Govt. Rules. The other criterias mentioned were also different the advertisement which was issued in 1997. from pay OFFER The appointees were OF given ON APPOINTMENT REGULAR BASIS however, they were given opportunity to work on contract period till receipt of and antecedent medical Their reports. probation period was also completed after one year from their the date of regular joining on various reports b) The contract period were renewed from time to time for 02 years each till their regularisation only in the year 2018 vide order dt.4.6.2018 which included both Financial Personnel as well as Secretarial Personnel in NHAI. (Ann-A/19). Page 8 of 30 dates of the year 1999 not from the date of contract. 06 Accounts 05 worked on contract for less than 27 days only. One Accountant joined as REGULAR only, as his police verification & medical fitness report had been received till then. On the pleadings of the parties and taking note of the rival contention of the respective parties, learned Tribunal meticulously framed the following issues for adjudication:- (i) Whether the provisions of the Recruitment Rules regarding the eligibility condition stipulating the minimum years of „regular‟ service for promotion to the post of Manager (F&A) are sustainable in view of the claim in the OA that these are unreasonable and discriminatory for long term contractual employees like the applicants. (ii) Whether the applicants‟ claims that they are similarly placed as the accountants appointed by NHAI on regular basis in the year 1999 and they have not been allowed similar benefits in matters relating to regularization of services and promotion to higher posts, are tenable. (iii) Whether promotion to the post of Manager (F&A) is to be done under the Recruitment Rules of 2011 (Annexure-A/13 of the OA) since the vacancies in question had arisen prior to the date when the amended Recruitment Rules of 2016 (Annexure-A/18) was notified. (iv) Whether under the notification dated 7.1.2015 (Annexure- A/17 of the OA), the applicants and the respondent nos. 3 to 24 are entitled for regularization against the post of JAO from the date they had completed 5 years of service as JAO on contractual basis. Page 9 of 30 12. The Tribunal, Cuttack by the impugned order dated 13.05.2020 at Annexure-4 rejected the claim of the petitioners/applicants therein. 13. It is contended by the petitioners that on the date of their appointment way back in the year 2000 there was no regular recruitment regulation for the post of Accountant and Jr. Accounts Officer rather NHAI was empowered by government of India vide letter dtd.02.05.1997 for creating the post up to the level of General Manager and accordingly the Board of NHAI had delegated power in its meeting dtd. 28.11.1997 to its Chairman to give appointment on contractual basis. Accordingly, on 22.06.1999 seven numbers of accountants were given appointment on contractual basis and their appointments were regularized within a short span of about six months whereas the present petitioners and similarly placed persons were deprived of such regularization benefit even though the Chairman was authorized by the NHAI Board in its meeting dtd. 15.01.2000 to engage the accountants and other support staff for the purpose of completion of projects. 13-A. The present petitioners were appointed by the NHAI authorities in terms of the advertisement issued by NHAI for filling up 3 posts of Accountant for the places located at Gurugaon, Durgapur and Vijawada. But after about two years the NHAI held the interview on 15.2.1999 and issued appointment order in respect of seven persons as accountant for a period of six months on contract basis with a stipulation that their services as Accountant and seniority in the said grade shall be determined as per the decision to be taken by the authorities. Their services were regularized on 28th July, 1999. Further, the Board of Directors of NHAI in their 27thmeeting dtd.25.1.2000 resolved that a staffing norm would be applied in a flexible manner Page 10 of 30 having regard to the administrative feasibility in the operation of the NHAI and with regard to the engagement of the support staff like PA/Stenographer/Accountant. Accordingly, the Board directed that they may be engaged on contract basis for the duration of NHAI project. One open advertisement was issued on all India basis for recruitment of staffs so as to manage the affairs of the NHAI relating to the finance wing in January, 2000 for recruitment of 29 numbers of personnel and in June, 2000 for 12 nos. of Accountants on contract basis with stipulation about their required qualification and working experience and the eligibility on consolidated pay. In terms of such advertisement, the present petitioners along with similarly situated persons so also the private Opp. Parties having being eligible participated in the selection process and on being selected, they got the appointment to the post of Accountant on contractual basis for a period of two years and keeping in view the increasing work load, all the petitioners were allowed to continue uninterruptedly. While continuing as such, they were granted with the regular scale of pay in the year 2005 on completion of five years of continuous service in NHAI including annual increment benefits of sixth CPC at par with so called regular appointee Accountants of 1999. Further, the petitioners including those 1999 appointees and similarly situated persons were allowed to discharge similar responsibility and function with higher scale of pay and were designated as Jr. Accounts Officer w.e.f. 25.6.2008 by a common office order. As such all of them discharged similar nature of duties and functions with same degree and responsibility in every aspect. While continuing as such, all the 38 Jr. Accounts Officer were given the benefit of the 6thCentral Pay revision and were extended Page 11 of 30 with the scale of pay Rs.9300-34800/- with GP of Rs.4800/- w.e.f. 1.1.2006 or 1.7.2006 depending upon completion of five years of service as Accountant. In the meantime the finance cadre of NHAI was restructured on 30.11.2011 by creating 80 posts of Accountants, 46 posts of Manager (F&A) and 17 posts of Deputy General Manager (Finance) and a set of new recruitment regulation was framed in the year 2011 providing that suitable officers who have rendered five years of regular service in the grade pay of next below with grade pay Rs.5400/- or six years of service in the grade pay of Rs.4800/-will be eligible for promotion to the post of Manager (F&A). 14. It is submitted by the petitioners referring to cadre strength of Manager (F&A) of 46 nos. and personnel manning the said posts in different capacity such as regular, deputationist, etc, claimed that there were 19 clear vacancies against which the Accountant recruited in the year 1999 on regular basis were only given promotion as Manager (F&A) on regular basis in the year 2012. But, the petitioners and other similarly situated persons even though posted as Jr. Accountant officer on contract basis and were allowed with the regular scale of pay with GP Rs.4800/- and had completed six years of service they were not considered for promotion merely on the untenable ground that their services have not been declared as regular service. 15. On being aggrieved with such action of the authorities, the petitioners and similarly situated persons submitted their grievances time and again for which the NHAI, Board of Directors were pleased to consider the proposal of regularization of long term contract employees in their agenda No. 9 of 93rd meeting dtd. 26.03.2013 and agenda No.7 of the 95th Board Meeting dtd. 14.08.2013 wherein it was resolved that a Page 12 of 30 scheme for regularization of the contractual employees of financial and secretarial cadre should be framed and accordingly in the 102nd Board meeting dtd. 17.11.2014 the proposal for regularizing long term contractual services were approved. 16. It is further contended by the petitioner that the similarly situated officers of NHAI namely Sri A.S. Dibendra and J.S.B.S. Prabhakar who were on deputation to the post of Manager (F&A) in NHAI and later on appointed on contractual basis w.e.f. 27.1.2003 and 17.07.2003 respectively had filed OA No.3280/2011 and 3281/2011 before the CAT, Principal Bench, New Delhi claiming promotion to the higher rank by counting their past service on deputation as well as the contractual period. Both the original applications were allowed directing the NHAI to grant them promotion by counting their past service in NHAI including the service rendered on contractual basis and the said order of the CAT were challenged before the Hon‟ble High Court of Delhi but the respective writ petitions were dismissed by a common judgment dtd.11.11.2014 upholding the decision of CAT. 17. The petitioners and similarly situated persons had also approached in OA 3031/2015 before the CAT, Principal Bench, New Delhi, to regularize them in terms of Regulation, 2015 dated 07.01.2015. During pendency of the said Original Application, the NHAI authorities issued the notification vide office order No.11041 dtd.04.06.2018 regularizing the service of the long-term contract employees (JAO) along with secretarial cadre candidates who were functioning also on long term contractual basis. In the said Order dated 04.06.2018 it has been mentioned that with the approval of executive committee granted on 30.5.2018 and in exercise of power delegated to the authorities to Page 13 of 30 regulate the services of the petitioners and similarly persons like them appointed between 2000-2001 w.e.f. 01.06.2018. 17-A. Taking note of such facts, the original application preferred by the petitioners in OA No.3031/2015 before the CAT, Principal Bench, New Delhi was disposed of 29.11.2018 granting liberty to the petitioners to avail remedies in accordance with law if the petitioners still have any other grievances. 18. The petitioners submitted their respective representations on 19.03.2019 before the NHAI authorities claiming discrimination as well as disparity in not treating them at par with the different other employees who were allegedly appointed on contractual basis pending issuance of formal regularization order. According to the petitioners, those representations were never considered by the NHAI authorities. 19. It is further contended by the petitioners that instead of regularizing them in the post of Manager (F&A), the NHAI authorities issued an advertisement for recruitment of 41 posts out of total posts of 46 posts of Manager (F&A) on deputation basis and as such finding no other way, the petitioners were constrained to approach the learned Tribunal in Cuttack Bench, Cuttack in OA NO.510/2019 (Annexure-1
Decision
of the writ petition) with a prayer as quoted above which was rejected by the impugned order dated 13.05.2020 at Annexure-4 of the writ petition. 20. In the said background the petitioners submitted that the petitioners have been subjected to discrimination and have been regularized w.e.f. 01.06.2018 though similarly circumstanced persons have been regularized in due course and as such the petitioners are entitled for regularization of their service with retrospective effect from Page 14 of 30 2005 i.e. date of completion of 5 years of service and prayed for consequential relief. Counter Affidavit by NHAI 21. The NHAI authorities filed counter and sum and substance of their stand is reproduced below: 21-A. The claim of the petitioners that 7 nos. of Accountants were recruited in the year 1999 on contractual basis is not a fact. An advertisement was issued in July, 1997 by the NHAI for the post of Accountant and there is no stipulation to show that such recruitment has been done on contractual basis. Whereas in respect of the petitioners the advertisement dated 10.01.2000 and 30.06.2000 clearly indicates that recruitment would be on contractual basis. As such, the appointment of said 7 nos. of Accountants in the year 1999 was on regular basis whereas the petitioners were appointed on contractual basis. Referring to the conditions stipulated in the appointment letters in respect of the petitioner and other persons appointed in the year 1999, it is vehemently argued that both of them are not similarly placed. 21-B. The NHAI authorities have vehemently opposed the stand of the petitioners treating equally both contractual as well as regular employees because for granting similar scale of pay. 21-C. It is the specific stand of the NHAI Authorities that merely granting the similar pay scale to the regular and contractual employees do not mean that they are equal in other matters also. Further, it is clarified that the re-designation of accountant as Jr. Accounts Officer on contractual basis cannot be termed as a promotion. The promotion can only be granted to the regular employees holding the feeder post on regular basis. Page 15 of 30 Referring to the RR(Recruitment Regulation) for the post of Jr. Accountant Officer, it has been argued that the different provision for recruitment, promotion and contract are available in the RR policy. For promotion a departmental candidate holding the post of Accountant on regular basis in NHAI for a period of at least five years is eligible for promotion as Jr. Accounts Officer whereas an employee holding post in NHAI on contract for a period of at least five years is eligible for appointment as Jr. Accounts Officer on contract basis. Since the present petitioners being the applicants before the CAT, were holding the post of Accountants and Jr. Accounts Officer on contractual basis, the question of promotion to them does not arise. In view of specific provision available in RR which is statutory in nature for the post of Jr. Accounts Officer published in the Gazette of India containing two distinct and different set of method of recruitment, one being by promotion other being by contract, the claim of the petitioners to be similarly placed with that of the regular employees because for availing similar pay scale is nothing but a misnomer of facts. That apart the RR of Manager (F&A) also prescribes the method of recruitment that an officer should have rendered five years of regular service in the grade next below with grade pay of Rs.5400/- or six years of service with grade of Rs.4800/-. While the RR for the post of Jr. Accounts Officer permits a method of induction into the service on contract basis in addition to promotion, such provision is not available while filling the post of Manager (F&A) that is there is no provision for contract. 21-D. It is further clarified by the authorities that the meeting held on 17.11.2014 it was directed that the proposal contained for considering the modalities as per Department of Personal of Training norms to regularize the long term contract employees appointed in Page 16 of 30 NHAI and fulfillment of prescribed recruitment rules applicable to relevant posts were taken into consideration and it was decided that henceforth there would be no recruitment on long term contract basis. Pursuant to such decision, the Gazette notification dtd. 7.1.2015 was published in the Gazette of India. It is submitted by the Opposite party-NHAI that to address the grievances of the petitioners and similarly circumstanced employees who were working since long term on contract basis, the Opposite Party No.2-NHAI, Board of Directors considered the proposal of regularization of long term contract employees in their agenda no. 9 of 93rdmeeting dtd. 26.3.2013 and agenda no.7 of the 95th Board Meeting dtd. 14.8.2013 wherein it was resolved that a scheme for regularization of the contractual employees of financial and secretarial cadre should be framed and accordingly in the 102nd Board meeting dtd. 17.11.2014 the proposal for regularizing long term contractual services was approved in form of a onetime scheme. 21-E. After due deliberation a scheme namely NHAI (Recruitment, Seniority and Promotion) Amendment Regulations, 2015 was formulated and published in Gazette Notification on 07.01.2015 which is at Annexure-A/17 of the OA. Regulation 13 A (1) (f) of the Regulation, 2015 stipulates that regularization shall have prospective effect i.e. from the date of orders of regularization. Regulation 13 A (1) (m) of the Regulation, 2015 stipulates that suitability of the officer/employee for regularisation shall be assessed by a selection committee. 21-F. The Senior Counsel appearing for the NHAI vehemently submits that even though the Regulation, 2015 was within the knowledge of the petitioners, at point of time the petitioners have Page 17 of 30 challenged the said Regulation. On the contrary the present petitioners filed OA No.3031/2015 before the Learned CAT, Principal Bench, Delhi, with a prayer to complete the process of regularization in terms of the statutory regulation dated 07/01/2015. Thus the petitioners are precluded from challenging the Regulation, 2015. 21-G. So far placing reliance on the decision of the learned CAT, New Delhi in OA NO.3280/2011 and OA No.3281/2011, it is submitted by Opposite party no.2-NHAI that the cases are primarily related to absorption on the respective applicants in those OAs who were initially appointed on deputation basis and the advertisement against which they were appointed also contained a clause relating to absorption. Such not being the case at hand, the principle decided therein will have no application in the facts of the present case. Relying upon the office memorandum dtd. 23.12.2014 of DOPT, it is submitted by the NHAI that appointment on contractual basis is not a recognized method of recruitment. DoPT has not issued any instruction for regularization of contract employees. Further, no instruction has been issued for appointment of contractual employees to the regular post in absence of recruitment rules. 21-H. It is further submitted by the Opp. Parties that the applicants had previously approached before the learned CAT, New Delhi in OA No.3031/2015 with a prayer to regularize their service in terms of Amendment Regulation, 2015 with all consequential benefits, which was disposed of on 18.01.2016 directing the Secretary, Ministry of Road, Transport and Highway to take a final view with consultation with the Department on the issue of regularization of long term contract employees including the applicants as per the Rules. Subsequently, these applicants filed RA 44/2016 in OA No.3031/2016 before the Page 18 of 30 learned CAT, Principal Bench, New Delhi which was disposed of on 09.11.2016 where as per the order dtd.18.01.2016 in OA No.3031/2015 was recalled and was restored to its original file and listed for hearing. At no point of time, the applicants had ever questioned the validity of Gazette notification dtd. 07.01.2015 at Annexure-A/17 of the OA whereby the NHAI had framed one time scheme for regularization of the long term contract employees. In fact, they had made a specific prayer before the learned CAT, Principal Bench, New Delhi for completing the process for regularization in terms of Gazette notification dtd. 07.01.2015 which is at Annexure-A/17 of OA. Accordingly, the petitioners were considered for regularization and after completion of process of regularization in terms of Gazette notification dtd. 07.01.2015, the benefit of regularization has been extended to the petitioners as such they are precluded from questioning the validity and condition stipulated in Gazette notification dtd. 07.01.2015 basing upon which their services were regularized w.e.f. 01.06.2018. 21-I. It is further submitted by the Opposite Party No.2-NHAI that the petitioners/applicants have made incorrect statement that the employees of secretarial cadre who were appointed on contract basis were promoted to higher rank without being declared regular in service as per Office order dtd. 05.01.2018 . The stand of the petitioners with respect to filling the post of Manager (F&A) in terms of the old Rule instead of New Rule, it is opposed by the NHAI citing plethora of decisions and distinguishing the facts in the decision of Y.B.Rangeya on various grounds inter alia taking a stand that the facts in Rangeya case is related to promotion of regular employees and officers and not that of contract employees. Since, the applicants were engaged on contract basis and they joined the NHAI after accepting the terms of the contracts Page 19 of 30 and they have been regularized w.e.f. 01.06.2018, there is no scope for regularizing taking into consideration the date of their initial appointment. The advertisement for filling up the post of Manager (F&A) has been made strictly taking into consideration the RR governing the field and there is no reason to deviate the policy and to accept the claim of the petitioner who know the condition of their services since the date of their joining and accepting such conditions, they are continuing with the benefit whatever it is accrued to them in terms of the conditions of the service, regulating their service condition. 21-J. The Opposite party-NHAI contended that the reliefs claimed by the petitioners are barred by limitation since cause of action arose in 2005 when the petitioners were not regularized even after completion of five years of service, but the petitioners did not challenge the same within the prescribed period of limitation. Thus after regularization in the year 2018, praying for a relief in the year 2019 to antedate their regularization to 2005 is hit by section 21 of the Administrative Tribunal Act. 21-K. The Opposite party-NHAI further contended that even though the NHAI Amendment Regulation, 2015, came into force on 07.10.2015, containing the stipulation that the services would be regularized prospectively in 13 A (1) (f) of the said Regulation and the said Regulation was well within the knowledge of the petitioners, by not challenging the same, the petitioners have forgo their right and as such cannot claim a relief which runs contrary to the Regulation 13 A (1) (f) of the NHAI Amendment Regulation, 2015. 21-L. Further the petitioners consciously subjected themselves to the assessment as prescribed under Regulation 13 A (1) (m) of the NHAI Amendment Regulation, 2015 and accepted consequential Page 20 of 30 regularization. Having acted upon the same and having accepting the regularization in terms of the NHAI Amendment Regulation, 2015, the petitioners are estopped and cannot be permitted to approbate and reprobate. Analysis of the judgments relied upon by the petitioners 22. The petitioners relied upon several decision of the Apex Court in order to fortify their claim to treat their date of initial contractual appointment as the determining factor in considering their case to make them eligible for their promotion to the next higher rank, instead of the date of regularisation and the „regular‟ service as has been done and impugned. 22-A. Relying on the decision in GP Doval and others versus Chief secretary Government of UP and others, AIR 1984 SC 1527 the petitioners claim to count the length of continuous officiation for the purpose of drawing the seniority list from the date of their first Appointment. There is no cavil about such proposition of law. But this has no application to decide the issue in the present case where the dispute is not with regard to the seniority inter se among the employees but with respect to satisfying the minimum eligibility of service that too on regular basis as required for promotion to the post of Manager (F&A). Therefore, the decision relied upon by the petitioner in GP Doval (Supra) has no application in the present case at hand 22-B. In the case of S. Sumnyan V/s. Limi Niri & Others, AIR 2010 SC 2159 relied upon by the petitioners, relates to counting the period of ad-hoc services for the purpose of seniority. Page 21 of 30 Keeping in view the facts and the issue involved in the present case, the principle decided in the said decision has no application to the case at hand and has been relied upon bereft of its context. 22-C. So far the principle decided in W.A. No. 936 of 2021 this Court finds that a division bench of this Court by their judgement dated 15.02.2023 upheld the decision of learned single judge granting the benefit to the petitioner in that case taking into consideration the background of facts and the decision of authorities from time to time dealing with regularization. This court finds that facts and issues of the present case are ex-facie distinguishable qua the facts and issues involved in the W.A. No. 936 of 2021 and the batch of case as decided. As such the ratio in the cited writ appeal has no application to the present case. 23. During the course of submission, it was argued before this Court that the CAT, Cuttack did not consider the materials available on record and also the arguments advanced by the petitioners to justify their claim that they should be treated at par with appointees of the year 1999 and arrived at the erroneous finding that the petitioners are not similarly circumstanced as appointees of the year 1999. 24. This Court, on a comparative scrutiny of the materials on record, finds that i.e. Advertisement of the year 1997 and consequential letter of appointment issued in the year 1999 appointing 7 number of accountants and the Advertisement of the year 2000 relating to the petitioners and the terms of consequential appointment letters are materially different. The Advertisement dated 16.07.1999 clearly shows the recruitment was on regular basis whereas the recruitment in the Page 22 of 30 Advertisement of the year 2000 was on contract basis for a period of two years. Recruitment and eligibility assessment criteria were also different in the recruitment process of Advertisement of the year 1997 and 2000. The appointment letter of the petitioners also stipulates the condition that the appointment is on contract basis which is not so in case of appointees of 1999. As such the claim of the petitioners that they are similarly circumstances with the appointees of the year 1999 have no legs to stand. 25. This court is also not persuaded to accept the contention of the petitioners to find the similarity and equality between the present petitioners and the accountants engaged during the year 1999 solely on the basis of grade pay and inter transferability among them. Rather this Court finds that the stand of opposite party-NHAI authorities in treating both the categories as distinct and different was rightly considered by the CAT in the impugned judgment. 26. Learned counsel for the Opposite Party-NHAI relying on Section 21 of the Administrative Tribunal Act also urged that the OA before the CAT, Cuttack was liable to be dismissed on the ground of limitation as prescribed under Section 21 of the Administrative Tribunals Act, 1985. For convenience of reference the said Section 21 of the Administrative Tribunals Act, 1985 is extracted hereunder:- 21. Limitation. - (1) A Tribunal shall not admit an application,- in a case where a final order such as is mentioned in (a) clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made; Page 23 of 30 (b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where- (a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and (b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. It is the submission of the learned counsel for the Opposite Party-NHAI that the cause of action in the case at hand arose in 2005 when the petitioners were not regularized even after completion of 5 years of service yet the petitioners admittedly did not challenge the same within the prescribed period of limitation as noted above and only woke up from their slumber after regularization in the year 2018 Page 24 of 30 praying for a relief in the year 2019 by filing the OA in question i.e. OA No.260/00510/2019 before the Tribunal, Cuttack seeking relief to antedate their regularization to 2005 which is as such hit by section 21 of 21 of the Administrative Tribunal Act. There is no explanation to negate such contention. Question of limitation being a point of law and it is trite that the same can be raised at any time in the considered view of this Court the relief claimed by the petitioner seeking to antedate their regularization to 2005 is liable to be rejected on this score alone. 27. It is submitted that the Opposite Party-NHAI Amendment Regulation, 2015, came into force on 07.01.2015, containing the stipulation that the services would be regularized prospectively in terms of 13 A (1) (f) of the said Regulation. For convenience of reference the said regulation is extracted hereunder:- xxx xxx xxx "2. These Regulations shall be inserted as Regulation 13 of the National Highways Authority of India (Recruitment, Seniority and Promotion), Regulations, 1996 (hereinafter referred to as the principal regulations) with the following clause:- 13A. Definition of Long Term Contract Employees.- The Long Term Contract employees are those employees/officers: (i) Who were initially selected for appointment on deputation basis and after due process of selection. However, when their parent department was wound up/they took VRS, they ceased to be on deputation for want of any parent organisation but keeping the need of the Authority they were continued on contract basis on the same terms and conditions as regards the posts and the pay scales as was applicable to them as deputationists. Page 25 of 30 includes written Should not be more than 55 years of age as on (ii) Who were recruited after following the regular process of recruitment i.e., open advertisement, all India competition which tests and skill tests/computer tests /interview, as the case may be. 13A(1) Scheme for one time Regularisation of long-term contract employees: Only those officers/employees appointed on long term contract who fulfill the following terms and conditions shall be considered for regularisation below the post of Manager:- (a) 01.01.2014. (b) Would be eligible for regularization after completion of five years of continuous service on long term contract basis (including their initial period of deputation, if any) and this five years of continuous service should either be complete or should be completed on or before 30.06.2015. (c) This is a one-time scheme and it would lapse once long term contract employees who complete five years of continuous service on or before 30.6.2015 are regularized. Henceforth, there would be recruitment on long term contract basis. (d) The officer/employee should have been initially appointed in NHAI after following the due process of selection. (e) The officer/employee shall be considered regularization only against the sanctioned post(s). (f) from the date of the orders of regularization. (g) The regularization shall be made strictly on the basis of seniority subject to fitness and fulfilment of eligibility conditions prescribed in the Regulations. (h) The regularization shall be made in compliance of the the Central Government regarding reservation in service for Scheduled Castes, Scheduled Tribes and Other Backward Classes, (i) "Satisfactory work and Conduct Report" The regularization shall be made on the basis of the The regularization shall have prospective effect i.e. instructions issued by from for Page 26 of 30 concerned controlling officer of the officer/employee being considered for regularization. (j) The officer/employee regularized on the basis of this Regulation shall be liable to be posted anywhere in India and shall be required to furnish an undertaking to this effect before being considered for regularization. (k) The officer' employee being considered regularization should be clear disciplinary cases. (l) considered under this Scheme shall be protected. (m) Suitability of the officer/employee being considered for regularization shall be assessed by a Selection Committee as applicable for the post for which he/she is being considered.” The consolidated pay of contractual employees being for from vigilance and xxx xxx xxx It is ascertained on behalf of the Opposite Party-NHAI that though such regularization was well within the knowledge of the petitioners the same not having been assailed, it is not open for the petitioners at this stage to claim the regulation which runs contrary to such regulation. 28. Admittedly the petitioners have never challenged the Amended Regulation, 2015 dated 07.01.2015, on the contrary the petitioners consciously subjected themselves to the assessment as prescribed under Regulation 13 A (1) (m) of the NHAI Amendment Regulation, 2015 and accepted consequential regularization. Having been regularized in terms of the Amendment Regulation, 2015 as rightly pointed out on behalf of the NHAI the petitioners are estopped from challenging the consequential prospective promotion granted to them in terms of Regulation, 2015 when the Regulation, 2015 stipulating the clause of prospective regularization is not under challenge. Page 27 of 30 29. That apart, it is for the authorities in the matter of regularization to take a decision of their own by formulating a scheme which in the present case the authorities have done so far, the present petitioner is concerned. The present petitioners being the beneficiary of such scheme and could recognise themselves as the regular employee and admittedly as there is no challenge to such decision and scheme of the authorities this court finds no merit with the contention of the petitioner that Learned CAT had not considered the facts as required and relied upon by the petitioners. 30. So far the argument advanced by the petitioners referring to the amendment regulation of 2015 where in the attention of this court was brought to the provision of Rule 13 (A)(1)(b) prescribing that the contractual employees would be eligible for regularization after completion of 5 years of continuous service and this 5 years of contractual service should either be completed or should be completed on or before 30th June 2015. This court finds the conditions stipulated in the said amended regulation of 2015 is unambiguous with respect to the eligibility for regularization only on completion of five years of continuous service for which the concept of regular service upon regularization in service cannot relate back to the date of initial engagement on contractual basis. At the cost of brevity, it may be noted here that admittedly, such Regulation though was well within the knowledge of the petitioners since 2015, was never challenged by the petitioners. On the contrary they sought for implementation of the same by seeking consequential regularization at par with the petitioner in OA no.3031/2015 as noted (CAT, Delhi). After completion of process, the Page 28 of 30 petitioners were granted regularization w.e.f.01.06.2018 which was accepted by the petitioners without any demur. The petitioners, made a representation only on 19.03.2019 for the first time seeking antedating their date of regularization. Law is no more res integra that a person who had not challenged the basis cannot challenge the consequential order based on such foundation. In the instant case, the basic order is the statutory regulation dated 07/01/2015 and the consequential order is the regularization office order dated 04/06/2018. As noted, the petitioners have not challenged the Regulation 13 A (1) (f) in any manner. It is trite law that once a person has accepted a benefit flowing from an order, he cannot turn around and challenge a part of the same order. In the instant case, the petitioners have accepted the regularisation w.e.f. 01.06.2018 granted to them in the order dated 04/06/2018(Annexure-A/19 of the OA) without any protest the reservation as noted. As such cannot turn around to assail the same. In absence of any challenge to such provisions of the amendment regulation of 2015 the finding arrived at by the CAT in the impugned judgement cannot be faulted. Further this Court is of the considered view that the notification of regulation dated 07.01.2015 at Annexure-A/17 of the OA, which is not in dispute in the present case, clearly stipulates that the regularisation order shall be effected from the date of publication. In the absence of any challenge to regulation dated 07.01.2015 at Annexure-A/17 of the OA which stipulates that regularisation order should be effective from the date of publication. The finding arrived by the impugned order cannot be faulted. 31. On a conspectus of the materials on record and after hearing the Counsels for the parties at length, this Court finds that the Page 29 of 30 CAT has delved into all the probable facets which could cover the prayer of the petitioners in the original application. Such issues as framed were answered with sound reasoning taking into account the facts of the case in the light of decisions cited. 32. In view of the aforesaid discussion, the argument made by the learned senior counsel for the petitioners that the impugned order dated 13.05.2020 is perverse and unsubstantiated does not hold any water, hence, rejected. 33. In view of the foregoing paragraphs, this Court does not find any infirmity in the impugned order passed by the learned Tribunal dated 13.05.2020 (Annexure-4 of the writ petition) denying the prayer of the petitioners to antedate their regularization and also not entertaining their prayer to regularize their services on completion of five years of continuous service in NHAI from the date of their respective initial appointment along with all consequential service benefits including promotion to the post of Manager (F&A) at par with seven numbers of employees who were appointed in the year 1999 and got promotion w.e.f. May 2012. 34. The writ petition being devoid of merit stands dismissed. No costs. (V. Narasingh) Judge D. Dash, J. I agree (D. Dash) Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 02-Nov-2024 12:42:40 Orissa High Court, Cuttack, Dated the 8th October, 2024/Ayesha Judge Page 30 of 30