Central Administrative Tribunal - Delhi
Vijay Prakash vs Housing And Urban Affairs on 12 October, 2023
1
O.A. No.1068/2023 &
O.A. No.1364/2023
Item No.30
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1068/2023
With
O.A. No.1364/2023
Order reserved on 26th September, 2023
Order pronounced on 12th October, 2023
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Anand Mathur, Member (A)
O.A. No.1068/2023
1. Vijay Prakash, AE (Elect.)
Seniority No.125
Aged about 53 years
s/o Shri Suresh Chandra
r/o 36-C, Jhang Apartment,
Sector 13, Rohini, Delhi - 110 085
2. Yograj Singh, AE (Elect.)
Seniority No.130
Aged about 52 years
s/o Sh. Tek Chand
r/o C-1, 103, Cherry County
Noida Extension 201306 UP
3. Krishna Kant Mishra, AE (Elect)
Seniority No.141
Aged about 57 years
s/o Sh. Shiva Kant Mishra
r/o D-60, National CPWD Academy
Kamla Nehru Nagar, Hapur Road
Ghaziabad 201002, UP
4. Akhilesh Kumar Singh, AE (Elect.)
Seniority No.144
Aged about 48 years
s/o Sh. Narendra Prasad Singh
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O.A. No.1068/2023 &
O.A. No.1364/2023
Item No.30
r/o 16/426, Lodhi Colony
New Delhi - 110 003
5. Om Prakash Srivastava, AE (Elect)
Seniority No.145
Aged about 53 years
s/o late Sh. Anand Madho Srivastava
r/o Flat No.500, Ground Floor
Niti Khand-2, Indirapuram
Ghaziabad, UP 201014
6. Sunil Dutt, AE (Elect)
Seniority No.142
Aged about 58 years
s/o Sh. Sat Pal
r/o 12/202, Vasundhara
Ghaziabad, UP 201012
7. Satpal Singh, AE (Elect)
Seniority No.147
Aged about 57 year
s/o late Sh. Girdhala Ram
r/o C-5/107, 2nd floor, Sector 11
Rohini, Delhi
8. Sunil Kushwaha, AE (Elect)
Seniority No.155
Aged about 46 years
s/o Sh. Surendra Kushwaha
r/o Flat No.701, Riviera Residency
Sector 6, Gomti Nagar Extension
Lucknow 226010
9. Prabhu Nath Singh, AE (Elect)
Seniority No.165
Aged about 56 years
s/o Sh. R C Singh
r/o F-228, Road No.3, Andrews Ganj
New Delhi - 110 049
10. Anjan Biswas, AE (Elect)
Seniority No.166
Aged about 55 years
3
O.A. No.1068/2023 &
O.A. No.1364/2023
Item No.30
s/o Sh. Pradeep Biswas
r/o B-91, Siddhartha Kunj
Sector 7, Dwarka, New Delhi - 110 075
11. Sushil Kumar Verma, AE (Elect)
Seniority No.179
Aged about 53 years
s/o late Sh. Radhey Shyam
r/o WZ-1391/31, Nangal Raya
New Delhi - 110 046
12. Naresh Kumar, AE (Elect)
Seniority No.188
Aged about 54 years
s/o Sh. Mata Deen
r/o A-504, Golden Palm Society
Sector 168, Noida - 20301
13. Sanjay Kumar Gupta, AE (Elect.)
Seniority No.202
Aged about 54 years
s/o Sh. Vishambhar Dayal
r/o 77, 2nd Floor, Saini Enclave
Delhi - 110 092
14. Nand Lal Gupta, AE (Elect)
Seniority No.206
Aged about 56 years
s/o late Sh. Mohan Lal Gupta
r/o 14/B, F-4, Chattarpur Extension
Near Nanda Hospital, Delhi - 110 074
...Applicants
(Mr. Arun Bhardwaj, Senior Advocate assisted by Mr.
Anil Singal and Mr. Nishant Bahuguna, Advocates)
Versus
1. Union of India through its Secretary
Ministry of Housing & Urban Affairs
Nirman Bhawan, New Delhi - 110 011
2. The Director General
CPWD, Nirman Bhawan, New Delhi - 110 011
4
O.A. No.1068/2023 &
O.A. No.1364/2023
Item No.30
3. Subrata Kumar Chakrabarti, AE (Elect)
Seniority No.126
Through Director General
CPWD, Nirman Bhawan,
New Delhi - 110 011
4. Ajoy Chakraborti, AE (Elect)
Seniority No.135
Through Director General
CPWD, Nirman Bhawan
New Delhi - 110 011
5. Ravinder Singh, AE (Elect)
s/o late Sh. Jai Chand
seniority No.230
6. Satranjan Kumar, AE (Elect)
Late Sh. Suraj Prakash
Seniority No.221
7. Devendra Kumar Srivastava, AE (Elect)
Sh. Munna Lal Srivastava,
Seniority No.232
8. Shambhu Prasad, AE (Elect.)
Late Sh. Rudra Prasad
Seniority No.239
9. Abdul Mohit, AE (Elect)
late Sh. Sanaur Rahman
Seniority No.220
10. Desh Bandhu Tyagi, AE (Elect)
Late Sh. Baljeet Singh Tyagi
Seniority No.217
11. Arun Kumar Singh, AE (Elect)
Late Sh. Hira Lal Singh
Seniority No.219
12. Sanjai Kumar Singh, AE (Elect)
Late Sh. Gopal Jee Singh
Seniority No.159
5
O.A. No.1068/2023 &
O.A. No.1364/2023
Item No.30
13. Subhash Eknath Bhiwapurkar, AE (Elect)
Sh. Eknath Dinaji Bhiwapurkar
Seniority No.235
14. Sunil Kumar Tayal AE (Elect)
Sh. Satya Prakash Tayal
Seniority No.237
15. Yogendra Kumar, AE (Elect)
Sh. Ram Niwa,
Seniority No.227
16. Satish Chand Jaiswal, AE (Elect)
Sh. Yamuna Prasad
Seniority No.195
...Respondents
(Mr. Gyanendra Singh, Advocate for respondent Nos. 1
and 2,
Mr. Mehul Jain, Mr. Ankur Mohindro & Mr. Rohan
Taneja, Advocates for respondent Nos. 3 & 4, and
Mr. M K Bhardwaj, Advocate for respondent Nos. 5 to
16)
O.A. No.1364/2023
1. Mahesh Kumar Garg, AE (Elect)
Seniority No.90
Aged about 52 years
s/o Sh. C P Garg
r/o 32-D, Kalani Nagar,
Aerodrome Road, Indore, MP 452005
2. Tulshi Ram Chaudhary, AE (Elect)
Seniority No.104
Aged about 50 years
s/o Sh. Bhondugi Chaudhary
r/o 154, JVTS Garden
Chhatarpur Extension
New Delhi - 110 074
3. Jarupla Umapathy, AE (Elect)
Seniority No.105
Aged about 49 years
6
O.A. No.1068/2023 &
O.A. No.1364/2023
Item No.30
s/o Late sh. J Kheemiah
r/o O/o EE & SM (E)
IITMPC, CPWD
Warden Quarter No.6
IIT Madras Campus
Chennai 600 036
4. Sachendra Kumar Agarwal, AE (Elect)
Seniority No.107
Aged about 56 years
S/o Sh. Hira Lal Aggarwal
r/o 704, Shree Om Saduuru CHSL
Plot No.122, Sector 50 (New)
Seawoods, Navi Mumbai 400 706
5. Mohammad Shakir, AE (Elect)
Seniority No.117
Aged about 48 years
s/o late Sh. Mod Jamil
r/o GP-211, Lake Peal Spring
Gandhi Nagar, Abbas Nagar
Bhopal, MP 462036
6. Sudipta Ganguly, AE (Elect)
Seniority No.123
Aged about 57 years
s/o late Sh. Poritosh Ganguly
r/o 33/1 Satish Mukherjee Road
Kolkata 700 026
...Applicants
(Mr. Arun Bhardwaj, Senior Advocate assisted by Mr.
Anil Singal and Mr. Nishant Bahuguna, Advocates)
Versus
1. Union of India through its Secretary
Ministry of Housing & Urban Affairs
Nirman Bhawan, New Delhi - 110 011
2. The Director General
CPWD, Nirman Bhawan
New Delhi - 110 011
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O.A. No.1068/2023 &
O.A. No.1364/2023
Item No.30
3. Ranjan Paul, AE (Elect)
Seniority No.93
Through Director General
CPWD, Nirman Bhawan
New Delhi - 110 011
4. Anurag Verma, AE (Elect.)
Seniority No.98
Through Director General
CPWD, Nirman Bhawan
New Delhi - 110 011
5. Raj Kapoor, AE (Elect)
Seniority No.102
Through Director General
CPWD, Nirman Bhawan
New Delhi - 110 011
6. Arjun Prasad, AE (Elect)
Seniority No.109
Through Director General
CPWD, Nirman Bhawan
New Delhi - 110 011
7. Subrata Kumar Chakrabarti, AE (Elect)
Seniority No.126
Through Director General
CPWD, Nirman Bhawan, New Delhi - 110 011
8. Ajoy Chakraborti, AE (Elect)
Seniority No.135
Through Director General
CPWD, Nirman Bhawan, New Delhi - 110 011
...Respondents
(Mr. R K Jain, Advocate for respondent Nos. 1 and 2,
Mr. Mehul Jain, Mr. Ankur Mohindro & Mr. Rohan
Taneja, Advocates for respondent Nos. 3 & 4, and
Mr. M K Bhardwaj, Advocate for other respondents)
8
O.A. No.1068/2023 &
O.A. No.1364/2023
Item No.30
ORDER
Mr. Justice Ranjit More:
Since these two O.As. are analogous in nature involving similar question of facts and law, they are decided by this common order.
2. By filing these O.As., the applicants are seeking the following reliefs:-
"O.A. No.1068/2023
1. To quash the Column 11 of Seniority List of AEs dt. 14.2.2022 wrongly typed as dt. 14.2.2021, OM dt. 21.10.2022 and Order dt. 10.04.2023.
2. To direct the CPWD to treat the Column 11 of the Seniority list as deleted/ignored for the purpose of determining the eligibility of the applicants for the promotion to the post of EE and/or show the date of appointment of the Applicants as AE in Column 11 as the year of LDCE quota the applicants qualified in Seniority List of AEs (Electrical) dt. 14.2.2022.
2. To direct the CPWD to consider the applicants eligible in all respect for promotion to the post of EE (Electrical) and promote the applicants to the post of EE (Electrical) prior to their juniors in Seniority List dt. 14.2.2022 with all consequential benefits."9
O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30
3. The case of the applicants is as follows:-
4. Applicants in both these O.As. are the diploma holders and had joined as Junior Engineer (JE) (Electrical) during 1989 to 2001. They become eligible for promotion through Limited Departmental Competitive Examination (LDCE) to the post of Assistant Engineer (AE) (Electrical) after rendering requisite service of four years. As per the Recruitment Rules, the post of AE (E) is filled up on the basis of seniority as JE (E) and through LDCE in the ratio of 50:50 up to vacancy year 2009-10 and in the ratio of 80:20 from 2010-11.
5. Respondent Nos. 1 & 2 filled up the requisite promotion and LDCE quotas by holding Departmental Promotion Committees (DPCs) and conducting competitive examinations from time to time up to the year 2001-02. They also filled up the requisite promotion quota by holding DPCs from 2002-03 onwards every year. They kept 50% slots vacant in the seniority list for being filled up by those, who will 10 O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 qualify in LDCE against their 50% year-wise quota. The official respondents, despite issuance of examination notices in the years 2004, 2006 and 2009, did not conduct any LDCE for vacancies falling in LDCE quota with effect from 2002-03.
It is the case of the applicants that the LDCE was not conducted by the official respondents due to their own laxity, for which the applicants cannot be made to suffer.
6. Two JEs, namely, Mr. Kanwaljit Saini and Mr. Ranjit Singh, filed O.A. No.850/CH/2009 before the Chandigarh Bench of this Tribunal, making grievance of non-holding of LDCEs from 2002-03 onwards. The said O.A. was disposed vide order / judgment dated 23.08.2010 with a direction to the official respondents to allow the applicants therein to appear in the LDCE for the vacancies from 2002-03 as per the prescribed quota and in case they are found eligible and qualify the same, they shall be entitled to all consequential benefits from the due date.
11
O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 Thereafter, the official respondents issued notice of LDCE-2015 for LDCE quota vacancies for the year 2002-03 onwards. The applicants applied in LDCE- 2015; the result of which was declared on 11.04.2017. They were declared to have qualified and were promoted to the post of AE. Accordingly, their seniority was fixed over and above such AEs, who were granted promotion in promotion quota from 2003-04 to 2008- 09 since they got selected against 50% LDCE quota vacancies for the year 2003-04.
7. By the Office Memorandum (O.M.) dated 14.02.2022, the official respondents published seniority list of AEs (E) in Central Public Works Department (CPWD) as on 01.01.2022. It is the case of the applicants that from the said seniority list, it is clear that their promotion as AE was related back to the vacancy year and their seniority was also fixed strictly by following the rotation of quota and not from the date of issuing of promotion order.
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O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30
8. The applicants thereafter submitted a representation dated 03.03.2022 to consider them for promotion to the post of Executive Engineer (EE) (Electrical), treating them eligible since the requirement is that of 'regular service' and not that of 'actual service' in the post of AE, as they are regular from the date prior to 2012. The representation of the applicants was, however, rejected by the official respondents vide order dated 10.04.2023 relying upon Ministry of Urban Development, Central Electrical and Mechanical Engineering Service Group 'A' Service Rules, 2012 (for short 'Recruitment Rules of 2012'), and column 11 of the seniority list dated 14.02.2022.
In the facts given hereinabove, the applicants were constrained to approach this Tribunal challenging column 11 of the seniority list of AEs (E) as on 01.01.2022, in which was the dates of appointment of the applicants as AE (E) through LDCE have been shown as '11.04.2017' instead of the year against the vacancy of which they had qualified, for the purpose of eligibility for promotion to the post of EE (E). 13
O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30
9. Mr. Arun Bhardwaj, learned senior counsel appearing for the applicants relied upon the decision of Hon'ble Supreme Court in Union of India & others v. K B Rajoria, (2000) 3 SCC 562 and submitted that the applicants' promotion as AE (E) was related back to the vacancy year 2002-03 and, therefore, their service as AE should be counted from 2002-03 for the purpose of promotion to the post of EE.
Mr. Bhardwaj, learned senior counsel relied upon office order dated 24.12.2019 issued by the Ministry of Housing & Urban Affairs (Works Division) under which five AEs (E) were promoted to the post of EE (E) against the vacancy year 2016-17 and one AE (E) was promoted as such against the vacancy year 2017-18. He further submitted that the applicants are also eligible for similar treatment as has been given to six AEs (E), who were promoted to the post of EE (E) with retrospective effect.
14
O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 Mr. Bhardwaj, learned senior counsel also relied upon the Inter-Departmental (ID) Note dated 22.10.2019 of Department of Personnel & Training (DoPT) and submitted that the decision has already been taken that seniority of AEs (E) may be counted from the respective years against which the candidates have cleared / selected in the LDCE-2015.
10. Mr. Gyanendra Singh and Mr. R K Jain, learned counsel for respondent Nos. 1 & 2 in both the O.As., Mr. Mehul Jain, learned counsel for respondent Nos. 3 & 4 in both the O.As., and Mr. M K Bhardwaj, learned counsel for respondent Nos. 5 to 16 in O.A. No.1068/2023 contested the O.As. vehemently. They mainly relied upon the Recruitment Rules of 2012, especially the definition of 'regular service' given under clause 2 (h) thereof and submitted that the decision of the Hon'ble Apex Court in K B Rajoria's case (supra) is not applicable to the facts and circumstances of the present cases.
15
O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 Learned counsel appearing for the respective respondents also referred to the decision of coordinate Bench of this Tribunal in Manish Raisagar & others v. Union of India & another (O.A. No.2169/2022) decided on 23.01.2023 and submitted that the issue involved in the instant O.As. has already been decided in the aforementioned case, wherein it has been observed that vacancies in promotional post are required to be filled in accordance with the prescribed Recruitment Rules of 2012.
11. Regarding ID Note dated 22.10.2019, relied upon by the applicants, it was submitted by learned counsel for the respondents that the same was initiated in response to a decision of Chandigarh Bench of this Tribunal in O.A. No.850/CH/2009. He further submitted that M.A. No.124/2019, seeking execution of the order passed in the said O.A., has been filed and the same is still pending. It is the specific stand of the official respondents that the ID Note is only an official noting and no final decision was taken thereon. 16
O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30
12. So far as the order whereby six AEs (E) were promoted as EEs (E) with retrospective effect is concerned, learned counsel for the respective respondents submitted that the said order was issued in pursuance of the order dated 08.05.2018 passed by the Hon'ble Apex Court in C.P. No.10/2016 in SLP (C) No.881/2015 and the same was rendered in exceptional circumstances and cannot be treated as a binding precedent.
13. We have considered the submissions of learned counsel for the respective parties and have gone through the pleadings of the O.As. along with their annexures.
14. In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President has made the Ministry of Urban Development, Central Electrical and Mechanical Engineering Service Group 'A' Service Rules, 2012. Vide these Rules, the Central Electrical and Mechanical Engineering Service Group 'A' Recruitment Rules, 1996, the Central Public Works 17 O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 Department (Additional Director General [(Works)- Special], Group 'A' Posts Recruitment Rules, 2003; and the Central Public Works Department (Additional Director General) (Works) Group 'A' Posts Recruitment Rules, 2004 have been superseded.
Rule 7 of the Recruitment Rules of 2012 talks about 'future maintenance of the service'. In the present case, Rule 7 (ii) is relevant, which mandates that "all the vacancies in the grades of Executive Engineer (Electrical and Mechanical) and above shall be filled by promotion from amongst the officers in the next lower grade with minimum qualifying service as specified in Schedule-II".
Column 6 of Schedule-II to Rule 7 (ii) deals with promotion of EE (Electrical & Mechanical). It reads:
6. Executive (i) By (i) 33 1/3 % from Assistant Engineer promotion Executive Engineer (Electrical and (Electrical and Mechanical) Mechanical) in Pay Band-3 Rs.15600-
39100 + Grade Pay of Rs.
5400/- with four years regular service in the grade and have successfully completed two week course on Contract Law, e-
Governance Building Bye-
18O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 laws and Building Electrification
(ii) By (ii) 66 2/3 % from promotion Assistant Engineer (Electrical) in Pay Band-2 Rs. 9300-34800+ Grade Pay of Rs.4600/- with Seven years regular service in the grade and possessing Degree in Electrical and Mechanical Engineering from a recognised University or Institution or any other equivalent qualification and have successfully completed two week course on Contract Law, e-Governance Building Bye-laws and Building services.
Note: The officers in the grade of Assistant Engineer (Electrical) on the date of the notification of these rules and possessing Diploma in Engineering shall however, continue to be eligible on completion of nine years regular service for consideration to the post of Executive Engineer (Electrical and Mechanical) limited to 33 1/3 % vacancies arising in the grade on annual basis;
Provided that the Assistant Engineers (Electrical) with seven years regular service, who at the time of recruitment as Junior Engineer (Electrical) were possessing Diploma in Engineering but subsequently acquired Degree in Engineering and those Assistant Engineers (Electrical) with seven years regular service, who 19 O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 were possessing degree in Engineering at the time of recruitment as Junior Engineer (Electrical) shall also be eligible for consideration to the post of the Executive Engineer (Electrical and Mechanical), in case a junior Diploma holder Assistant Engineer (Electrical) is considered for promotion.
A reading of column 6 makes it clear that 1/3rd of EE (Electrical and Mechanical) shall be promoted from the post of Assistant Executive Engineer (AEE) (Electrical & Mechanical), and 2/3rd from AE (E) possessing degrees. The same was subject to the condition that the officers in the grade of AE (E) on the date of notification of these Rules and possessing Diploma in Engineering shall, however, continue to be eligible on completion of nine years regular service for consideration to the post of EE (Electrical & Mechanical), limited to 33 1/3% vacancies arising in the grade on annual basis. From the said column, it is further made clear that such an individual must be in the grade of AE (Electrical) on the date of the notification of these Rules.
20
O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30
15. The phrase 'regular service' mentioned in the aforesaid column is defined under clause 2 (h) of the Recruitment Rules of 2012, which reads as under:-
"(h) "regular service" in relation to any grade means the period or periods of service in that grade rendered after selection and appointed thereto under the rules according to the prescribed procedure for regular appointment to that grade and includes any period or periods:-
(1) taken into account for the purpose of seniority in case of those appointed under rule 6;
(2) during which an officer would have held a duty post in that grade but for being on leave or otherwise not being available for holding such post."
A reading of this definition makes it abundantly clear that 'regular service' means the 'actual service' rendered by the individual after selection and appointed thereto in accordance with the Recruitment Rules.
16. In K B Rajoria's case (supra), the Hon'ble Apex Court considered the Central Public Works Department (Director General of Works) Recruitment Rules, 1986 as amended by the Central Public Works Department 21 O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 (Director General of Works) Recruitment (Amendment) Rules, 1992. These Recruitment Rules prescribe two years' regular service on feeder post for becoming eligible for promotion to the next post. In the absence of any definition of regular service in these Rules, the Hon'ble Apex Court held that the 'regular service' does not mean the 'actual service'.
In our considered view, the aforesaid decision of the Hon'ble Apex Court would not be applicable to the facts and circumstances of the instant O.As. in the light of the definition of 'regular service' given under clause 2
(h) of the Recruitment Rules of 2012.
17. It is true that the official respondents promoted six AEs (E) to the post of EE (E) with retrospective effect, vide order dated 24.12.2019, which was done in pursuance of the order dated 08.05.2018 passed by the Hon'ble Apex Court in C.P. No.10/2016 in SLP (C) No.881/2015. The said order was passed in order to put a quietus to the entire dispute. For ready reference, the order reads as under:
22
O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 "That there are 117 vacancies for the year 1999- 2000, 2000-2001, 2001-2002 on the basis of the recalculation of vacancies made pursuant to the direction of the Central Administrative Tribunal dated 11.10.2004.
2. It is also to be noted that the direction of the Central Administrative Tribunal has been confirmed by the High Court. The judgment has become final. There is no dispute that the petitioners had participated in the LDCE conducted in the year 2002. Now that it is an admitted position that there existed 117 vacancies as in 2002 of which 12 are to be set apart for the LDCE route, it is only appropriate that the whole dispute is given a quietus by accommodating the 7 petitioners against those 12 vacancies.
3. We make it clear that no further claim shall be entertained in respect of the remaining vacancies, since only 7 employees have chosen to pursue the litigation claiming adjustment against the vacancies of 2002. We also make it clear that there shall be no further litigation in this regard, since by this order we propose to put a quietus to the entire dispute.
4. The contempt petition is, accordingly, disposed of.
5. Pending applications, if any, shall stand disposed of."
A reading of the aforesaid order would make it clear that the same was passed in a specific case and cannot be made basis for reference in other cases, more 23 O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 particularly in the light of definition of 'regular service in clause 2 (h) of the Recruitment Rules of 2012.
18. So far as the ID Note relied upon by the applicants is concerned, it is a settled position of law that ID Note is only an official noting, which does not become effective order liable for public knowledge and is only an internal discussion. In addition to this, it is the specific case of the respondents that the ID Note has never resulted in a final decision. Therefore, reliance placed by the applicants on the ID Note is misconceived.
19. The Hon'ble Apex Court in M/s. Sethi Auto Service Station & another v. Delhi Development Authority & others, JT 2008 (11) SC 520 has held as follows:-
"12. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside 24 O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision- making authority in the department; gets his approval and the final order is communicated to the person concerned."
20. Relying upon the aforesaid judgment in M/s. Sethi Auto Service Station, the Hon'ble Apex Court in State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 has held as under:-
"24. A nothing recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. - State of Punjab v.
Sodhi Sukhdev Singh AIR 1961 SC 493, Bachhittar Singh v. State of Punjab AIR 1963 25 O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 SC 395, State of Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Station v. DDA (2009) 1 SCC 180 and Shanti Sports Club v. Union of India (2009) 15 SCC 705."
21. Recently, the Hon'ble Apex Court in Mahadeo & others v. Smt. Sovan Devi & others, 2022 LiveLaw (SC) 730 followed the aforesaid dictum and held that ID communications cannot be relied upon as a basis to claim any right and merely writing something on the file does not amount to an order.
22. An issue similar to the one raised in the instant O.As. has already been decided by a coordinate Bench of this Tribunal in Manish Raisagar's case (supra). In paragraphs 12 & 15 thereof, it was held as follows:-
"12. The applicants have been treated as senior to LDCE-2002 is one aspect of the matter and their eligibility to the post of EE as per RR's is altogether different.
xx xx xx
15. The seven years eligibility has to be in present facts counted from 07.07.2015, although the eligibility of applicants ought to have been determined from the date of declaration of result 26 O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30 of LDCE, 1999. The applicants who all fall under the said category are eligible to be considered w.e.f 7.7.2015 till they complete seven years of service. Thus, the applicant shall become eligible w.e.f 6.7.2022 only and not prior to the said date strictly as per RR'S as well subject to availability of vacancies in said promotional grade."
(emphasis supplied) A reading of these observations makes it clear that the seniority of the applicants in pursuance to LDCE-2015 is one aspect of the matter and eligibility to the post of AE (E) as per the Recruitment Rules is another aspect. The aforesaid order of the Tribunal unequivocally and unambiguously supports the stand taken by the respondents.
23. To sum up, we find that the applicants were actually promoted to the post of AE (E) in the year 2017 and since they have not completed nine years of regular service in accordance with the Recruitment Rules of 2012, they are not eligible to compete for the promotional post of EE (E).
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O.A. No.1068/2023 & O.A. No.1364/2023 Item No.30
24. The O.As. being devoid of substance are accordingly dismissed.
25. Pending M.As., if any, shall stand disposed of.
26. There shall be no order as to costs.
( Anand Mathur ) ( Justice Ranjit More )
Member (A) Chairman
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