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2017 (2) TMI 746 - HC - Companies LawAppointments, probation and termination of service - appointment by deputation - Writ Petition seeking direction not to fill up 50% of the posts of Executive Director, henceforth by direct recruitment or deputation and/or on contract basis unless there is no eligible and suitable officer available internally in SEBI Held that:- Executive Director can be a promotee. He can also be a deputationist. He can also come by direct recruitment and that direct recruitment is distinct from another mode of recruitment and that is on contract basis. However, 50% of the total posts are to be filled from internal candidates and the remaining 50% to be filled-in by deputation / contract and/or direct recruitment. In case of non-availability in any category, namely, internal and deputation / open market the post may be filled in from other categories. Thus, a person who has experience and special knowledge of law, investigation, finance, economics, accountancy, administration etc and found to be useful to the Board, can be recruited. The Petitioners have projected that though there are eligible departmental candidates available working in Grade-F posts having completed three years or more service in the said grades, they have not been considered for being appointed to the post of Executive Director by way of promotion and instead a practice has been followed to invariably bring persons for appointment by other methods, namely, deputation / contract basis. The appointment to the post of Executive Director by way of deputation is permissible only in terms of Regulation 7(3). The Petitioners have not projected the specific grievance of employees who have been over-looked and in preference to the deputationist. If the Petitioners are praying for safeguarding and protecting the just, legitimate right and interest of internal SEBI employees working in Grade-F and below in matters of promotion to the post of Executive Director, then, they ought to have indicated with clear example of individuals who have been adversely and prejudicially affected. The promotional avenues of the SEBI employees to the extent indicated in the Regulations are untouched and undisturbed. The general grievances as projected in the Writ Petition and in the representations / legal notice have been rightly answered by relying on the provisions of the Act and the Regulations. Notwithstanding anything in the employees Regulations the Board’s right to appoint the officers of its choice has not been affected. The internal candidates and their interests are not sacrificed or surrendered much less defeated or frustrated. Once the recruitment even from open market enables Petitioner No.1 and its members to apply and they can be considered, then, all the more we do not see any substance in the Petitioners' grievance. Further, paragraph 5 of the affidavit highlights as to how the eight positions have been filled in and/or are being filled in. The four positions of the Executive Directors have been filled in by promoting the officers from highest grade i.e. Grade-F. For the remaining four posts, two are filled in by the Executive Directors who have been appointed on contractual basis for three years, one by deputation and remaining two are vacant. They are to be filled in by the process of advertisement. In that process as well, the Petitioners have participated. If their understanding was as projected in the Writ Petition or their representations, possibly they would not have been able to apply at all. As a result of the above discussion, we do not find that the Petitioners have any pre-existing legally enforceable right to claim a writ of mandamus and direction in terms of prayer clauses (a) and (b). The Writ Petition is devoid of merits and it is dismissed. Rule is discharged. In the circumstances, there shall be no order as to costs.
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