Delhi High Court
S.S. Agarwal vs Union Of India & Another on 20 January, 2009
Author: A.K. Sikri
Bench: A.K. Sikri, Suresh Kait
Unreportable
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 3924 of 1997
% Dictated on : January 20, 2009
S.S. Agarwal . . . Petitioner
through : In-person
VERSUS
Union of India & Anr. . . . Respondents
through : Mr. Rajesh Katyal, Advocate
CORAM :-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. Though this case entails long factual matrix, the issue raised is in a narrow compass. To recapitulate in brief, the petitioner was recruited as Assistant Executive Engineer (AEE) in the Engineer Cadre of the Military Engineer Services (MES) on 7.2.1964. Another cadre in the MES is known as Surveyor Cadre. These two cadres were merged up to the level of AEE and Assistant Surveyor of Works (ASW) by the respondents vide orders dated 23.3.1964. Effect thereof was that there was a common seniority list of AEE and ASW.
2. In the Engineer Cadre, next promotion from AEE is to the post of Executive Engineer (EE). Likewise, in the Surveyor Cadre, next WP (C) No. 3924/1997 nsk Page 1 of 7 promotion from the post of ASW is to the post of Surveyor of Works (SW). Since at AEE and ASW level the two cadres got merged, incumbents in these cadres could be considered for promotion to the post of EE as well as SW.
3. The petitioner, who was recruited in the Engineer Cadre as mentioned above, was considered for promotion to the post of EE in the year 1974. However, he could not be promoted because of his low position in the seniority list. His turn for consideration to the post of SW in the Surveyor Cadre came in the year 1975 and the Departmental Promotion Committee (DPC), after consideration of his case, recommended him for promotion as SW. He was accordingly promoted as SW vide order dated 22.8.1975. From the post of EE and SW, the two cadres go their own way and are totally independent of each other.
4. With promotion of the petitioner as SW in 1975, he switched over to Surveyor Cadre. The pay-scale of SW is same as that of EE. It is not in dispute that after the posting orders were issued on 9.9.1975, the petitioner assumed the duties of SW on 19.2.1976 and started discharging his duties as SW. We may point out at this stage itself that the petitioner has, thereafter, got further promotions in the Surveyor Cadre and had risen to the highest post of Chief Surveyor of Works, which is equivalent to the post of Chief Engineer in the Engineer Cadre.
WP (C) No. 3924/1997 nsk Page 2 of 7
5. It so happened that the issue of seniority in the Engineer Cadre, and particularly at AEE level, was pending adjudication before the Supreme Court in the case of A. Janardhana v. Union of India & Ors. This appeal was decided on 26.4.1983 by the Supreme Court and the judgment is reported as AIR 1983 SC 769. The Supreme Court in this case had declared that the seniority list of 1974, as prepared by the Department, was invalid as being violative of Articles 14 and 16 of the Constitution. At the same time, earlier seniority list of 1967-68 was held to be valid and the Department was directed to undertake the exercise of promotions to the higher post on the basis of the seniority list of 1967-68. This necessitated holding of Review DPCs in place of earlier DPCs conducted on the basis of the seniority list of 1974.
6. We have already pointed out above that the petitioner, who was initially recruited as AEE in the Engineer Cadre, was considered for promotion as EE in the said cadre in the year 1974 but was not promoted. In view of the directions of the Supreme Court in A. Janardhana (supra), when the Review DPCs were convened as a necessary consequence, Review DPC in the case of the petitioner was also convened, though in the meantime he had switched over to Surveyor Cadre. In the case of the petitioner, in the Review DPC held in 1985, the petitioner was found fit for promotion as EE against the vacancies of 1979-80. He was, thus, given a choice to either remain in the Surveyor Cadre, where he was promoted as SW in the year 1975, or opt back for Engineer Cadre by offering him the post WP (C) No. 3924/1997 nsk Page 3 of 7 of EE with effect from 1979-80. The petitioner exercised his option to go to Engineer Cadre, but at the same time put a condition, viz. he wanted the post of EE with effect from 1975, when he was promoted as SW. Since this was not acceptable to the Department, the petitioner continued to work as SW.
7. No doubt, the petitioner kept on making representations to the effect that he should be given the Engineer Cadre. As per his own averments made in the writ petition, no replies were received to his representations. It is also not in dispute that those who had given their clear options accepting the post of EE from the date it was conferred were brought back to the Engineer Cadre.
8. The petitioner filed OA No. 171/1987 in the Central Administrative Tribunal (CAT), Principal Bench, New Delhi raising the aforesaid grievances and seeking the prayer that he should be allotted Engineer Cadre and be treated as promoted to the post of EE with effect from 1975. This OA was dismissed by the Tribunal vide orders dated 26.9.1995. The petitioner filed special leave petition against that judgment but withdrew the same when liberty was given to the petitioner to seek review. He, therefore, filed the review petition, which was allowed on the ground that there were certain factual errors in the earlier judgment. Thereafter, OA was heard again on merits and has now been dismissed again vide judgment dated 26.5.1997. Present petition is filed challenging this judgment. WP (C) No. 3924/1997 nsk Page 4 of 7
9. The Tribunal has, inter alia, noted that after having not been selected for promotion as EE in the year 1974 and after getting promotion as SW in the Surveyor Cadre, the petitioner came to the said cadre and got further promotions in that cadre. It is also noted that if the petitioner had a grievance against the non-reply of his representation dated 12.1.1976 for promotion as EE or indeed his non-consideration for promotion as EE in the DPC held in 1976, 1977 and 1978, it was open to him to have agitated the matter in the appropriate legal forum, which he did not do.
10. The upshot of the aforesaid discussion is that though the petitioner was considered in the Review DPCs held in 1976, 1977 and 1978 as EE, but was not recommended for promotion and he was recommended for promotion only in the Review DPC for the year 1979-80, the plea of the petitioner is that still he should have been given the post of EE with effect from 1975 only because he had worked as SW from that date and the SW post is equivalent to that of EE. This is clearly impermissible. However, he has referred to the observations made by the Supreme Court in A. Janardhana (supra) where principle of seniority enunciated is that rule of determining inter se seniority in the cadre of Assistants should be the basis of length of service in that grade as well as service in an equivalent grade.
11. These observations would not apply to the situation with which we are confronted with. In the present case, the petitioner was WP (C) No. 3924/1997 nsk Page 5 of 7 promoted as SW only because he could not get promotion as EE. As EE, he could get promotion only in the year 1979. Therefore, if the petitioner wanted Engineer Cadre, he could opt for the same along with promotion to the post of EE in the year 1979 only. The petitioner wanted to shift to the Engineer Cadre, but at the same time demands the benefit of Surveyor Cadre. We state at the cost of repetition that but for the Review DPCs and consideration of the case of the petitioner for promotion to the post of EE, there was no question of giving him any option to go back to the Engineer Cadre as in the year 1975 he was promoted as SW in the Surveyor Cadre when he had failed to get promotion as EE in the Engineer Cadre. Thus, the petitioner wants best of both the worlds and this would amount to a situation where he wants to 'eat the cake and have it too'.
The petitioner has even retired from service in the year 1997.
12. We are of the opinion that he had not exercised his option properly to go back to the Engineer Cadre as it was a conditional option and that too with an unreasonable demand which could not have been accepted by the Department. The petitioner, thus, remained in Surveyor Cadre and continued to get the promotions in that cadre and retired as Chief Surveyor of Works, which is equivalent to the post of Chief Engineer in the Engineer Cadre.
13. Thus, there is no loss of promotional avenues. Only on the hypothesis that had he been given the option to go back to the WP (C) No. 3924/1997 nsk Page 6 of 7 Engineer Cadre in the year 1985, he would have got the post of Chief Engineer at an earlier date, that the petitioner is pressing this petition. All this is in the realm of conjectures and it is not possible to put the clock back at this juncture.
14. For the foregoing reasons, we do not find any merit in this writ petition, which is accordingly dismissed.
(A.K. SIKRI) JUDGE (SURESH KAIT) JUDGE January 20, 2009 nsk WP (C) No. 3924/1997 nsk Page 7 of 7