Central Administrative Tribunal - Delhi
Vinod Kumar vs M/O Urban Development on 6 January, 2022
1
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.2991/2019
with
OA No.1079/2020
OA No. 148/2021 & MA No.2467/2021
and
OA No.2372/2021 & MA Nos.3296/21 & 3317/21
Reserved on:23.12.2021
Pronounced on:06.01.2022
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
OA No.2991/2019
1. Anurag Singh, EE (Civil), Group „A‟
Aged about 52 years
S/o Late Sh. Rajbir Singh
R/o E-138, Astha Kunj, Sec-18, Rohini
Delhi-110089.
2. Vivek Kumar Gupta, EE (Civil), Group „A‟
Aged about 49 years
S/o Late Sh. Manil Chandra Gupta
R/o Flat No. E-3, Mitrdeep Apartment
Plot no. 38, I.P. Extn., Delhi-110092.
3. Surender Kumar, EE (Civil), Group „A‟
Aged about 55 years
S/o Sh. Girdhari Lal
R/o A-3/26, Jeevan Jyoti Apartment
Pitampura, Delhi-110034. ... Applicants
Versus
1. Union of India
Through its Secretary
Ministry of Urban Development
Nirman Bhawan, New Delhi-110011.
2. The Director General
CPWD, Nirman Bhawan, New Delhi-110011.
2
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
3. The Additional Director General (Training)
CPWD Training Institute
Kamla Nehru Nagar
Hapur Road, Ghaziabad-20002.
4. Sanjay Garg (UR)
Serving as AE(Civil)
CPWD, New Delhi
S/o Sh. Mool Chand Garg
R/o H.No. 472, Sec-41, Vasundhara
Ghaziabad, UP.
5. S. Akhatar Khan
Serving as AE (Civil)
CPWD, New Delhi.
6. V.K. Sharma
Serving as AE (Civil)
CPWD, New Delhi.
7. Varun Kumar Singh
Serving as AE (Civil)
CPWD, New Delhi.
8. Rajesh Verma
Serving as AE (Civil)
CPWD, New Delhi.
9. B.P. Chaurasia
Serving as AE (Civil)
CPWD, New Delhi.
10. Puli Shivsagar
Serving as AE (Civil)
CPWD, New Delhi.
11. P. Ganesh, Serving as AE (Civil)
CPWD, New Delhi.
12. P. Raja Sekhar, Serving as AE (Civil)
CPWD, New Delhi.
13. S.R. Agrawal
Serving as AE (Civil)
CPWD, New Delhi.
3
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
14. Anil Kumar Gupta
Serving as AE (Civil)
CPWD, New Delhi.
15. Sanjay Garg
Serving as AE (Civil)
CPWD, New Delhi.
16. Sudhir Kumar
Serving as AE (Civil)
CPWD, New Delhi.
17. A. Mumunda Reddy
Serving as AE (Civil)
CPWD, New Delhi.
18. M.S. Zareena
Serving as AE (Civil)
CPWD, New Delhi.
19. K. Krishna
Serving as AE (Civil)
CPWD, New Delhi.
20. Kanhaiya Lal
Serving as AE (Civil)
CPWD, New Delhi.
21. Atul Rastogi
Serving as AE (Civil)
CPWD, New Delhi.
22. Jitendra Panwar
Serving as AE (Civil)
CPWD, New Delhi.
23. P.S. Mukundan, Serving as AE (Civil)
CPWD, New Delhi.
24. Manoj Kumar, Serving as AE (Civil)
CPWD, New Delhi.
25. Rajesh Prasad
Serving as AE (Civil)
CPWD, New Delhi.
4
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
26. Nagendra Kumar
Serving as AE (Civil)
CPWD, New Delhi.
27. P. Manoharan
Serving as AE (Civil)
CPWD, New Delhi.
28. Sanjay Kumar
Serving as AE (Civil)
CPWD, New Delhi.
29. Vinod Kumar
Serving as AE (Civil)
CPWD, New Delhi.
30. S.K. Rai
Serving as AE (Civil)
CPWD, New Delhi.
31. J. Prasad Yadav
Serving as AE (Civil)
CPWD, New Delhi.
32. Daulat Ram Verma
Serving as AE (Civil)
CPWD, New Delhi.
33. Gyanendra Kumar
Serving as AE (Civil)
CPWD, New Delhi.
34. Hari Om Singh
Serving as AE (Civil)
CPWD, New Delhi.
35. M.P. Khan, Serving as AE (Civil)
CPWD, New Delhi.
36. Ashok Kumar Patel
Serving as AE (Civil)
CPWD, New Delhi.
37. Manish Rai Sagar
Serving as AE (Civil)
CPWD, New Delhi.
5
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
38. Bijay Kumar Roy
Serving as AE (Civil)
CPWD, New Delhi.
39. Raj Kumar Saxena
Serving as AE (Civil)
CPWD, New Delhi.
40. Sanjay Prasad Sinha
Serving as AE (Civil)
CPWD, New Delhi.
41. K. Shanmukha Babu
Serving as AE (Civil)
CPWD, New Delhi.
42. S.K. Shrivastava
Serving as AE (Civil)
CPWD, New Delhi.
43. Sanjay Mittal
Serving as AE (Civil)
CPWD, New Delhi.
44. Om Shiva
Serving as AE (Civil)
CPWD, New Delhi.
45. Sanjay Kumar
Serving as AE (Civil)
CPWD, New Delhi.
46. H.K. Bhadula, Serving as AE (Civil)
CPWD, New Delhi.
47. Arun Singh, Serving as AE (Civil)
CPWD, New Delhi.
48. Gurmeet Singh
Serving as AE (Civil)
CPWD, New Delhi.
49. S.S. Bhadauriya
Serving as AE (Civil)
CPWD, New Delhi.
6
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
50. Narender Paul
Serving as AE (Civil)
CPWD, New Delhi.
51. C.D. Bhaurao
Serving as AE (Civil)
CPWD, New Delhi.
52. Shiv Kumar
Serving as AE (Civil)
CPWD, New Delhi.
53. Shankar Singh
Serving as AE (Civil)
CPWD, New Delhi.
54. S.P. Singh
Serving as AE (Civil)
CPWD, New Delhi.
55. Gurbachan Singh
Serving as AE (Civil)
CPWD, New Delhi.
56. Chandresh Kumar
Serving as AE (Civil)
CPWD, New Delhi.
57. T. Geminiganesan
Serving as AE (Civil)
CPWD, New Delhi.
58. D. Sadvali Boge
Serving as AE (Civil)
CPWD, New Delhi.
59. Mindal Singh
Serving as AE (Civil)
CPWD, New Delhi. ... Respondents
7
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
OA No.1079/2020
1. Sh. Ganga Vishnu (age about 52 years)
(Group-B)
s/o Sh. Ram Prasad,
Assistant Engineer (Civil),
Posted at - Office of Executive Engineer,
Redevelopment Project, Division-II, CPWD,
Vidyut Bhawan, New Delhi.
R/o 61, Kamayani Kunj, IP Extension,
Delhi-110 092. ...Applicant
Versus
1. Union of India through Secretary,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi - 110 011.
2. Central Public Works Department (CPWD)
Through Director General,
Nirman Bhawan,
New Delhi-110 001.
3. S. Akhatar Khan,
Service as AE (Civil)
CPWD, New Delhi.
4. V.K. Sharma,
Service as AE (Civil)
CPWD, New Delhi.
5. Varun Kumar Singh,
Service as AE (Civil)
CPWD, New Delhi.
6. Rajesh Verma,
Service as AE (Civil)
CPWD, New Delhi.
7. B.P. Chaurasia,
Service as AE (Civil)
CPWD, New Delhi.
8. Puli Shivsagar, Service as AE (Civil)
CPWD, New Delhi.
8
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
9. P. Ganesh,
Service as AE (Civil)
CPWD, New Delhi.
10. P. Raja Sekhar,
Service as AE (Civil)
CPWD, New Delhi.
11. S.R. Agrawal,
Service as AE (Civil)
CPWD, New Delhi.
12. Anil Kumar Gupta,
Service as AE (Civil)
CPWD, New Delhi.
13. Sanjay Garg,
Service as AE (Civil)
CPWD, New Delhi.
14. Sudhir Kumar,
Service as AE (Civil)
CPWD, New Delhi.
15. A. Mumunda Reddy,
Service as AE (Civil)
CPWD, New Delhi.
16. M.S. Zareena,
Service as AE (Civil)
CPWD, New Delhi.
17. K. Krishna,
Service as AE (Civil)
CPWD, New Delhi.
18. Kanhaiya Lal, Service as AE (Civil)
CPWD, New Delhi.
19. Atul Rastogi,
Service as AE (Civil)
CPWD, New Delhi.
20. Jitendra Panwar,
Service as AE (Civil)
CPWD, New Delhi.
9
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
21. P.S. Mukundan,
Service as AE (Civil)
CPWD, New Delhi.
22. Manoj Kumar,
Service as AE (Civil)
CPWD, New Delhi.
23. Rajesh Prasad,
Service as AE (Civil)
CPWD, New Delhi.
24. Nagendra Kumar,
Service as AE (Civil)
CPWD, New Delhi.
25. P. Manmohan,
Service as AE (Civil)
CPWD, New Delhi.
26. Sanjay Kumar,
Service as AE (Civil)
CPWD, New Delhi.
27. Vinod Kumar,
Service as AE (Civil)
CPWD, New Delhi.
28. S.K. Rai,
Service as AE (Civil)
CPWD, New Delhi.
29. J. Prasad Yadav,
Service as AE (Civil)
CPWD, New Delhi.
30. Daulat Ram Verma,
Service as AE (Civil)
CPWD, New Delhi.
31. Gyanendra Kumar,
Service as AE (Civil)
CPWD, New Delhi.
10
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
32. Hari Om Singh,
Service as AE (Civil)
CPWD, New Delhi.
33. M.P. Khan,
Service as AE (Civil)
CPWD, New Delhi.
34. Ashok Kumar Patel,
Service as AE (Civil)
CPWD, New Delhi.
35. Manish Rai Sagar,
Service as AE (Civil)
CPWD, New Delhi.
36. Bijay Kumar Roy,
Service as AE (Civil)
CPWD, New Delhi.
37. Raj Kumar Saxena,
Service as AE (Civil)
CPWD, New Delhi.
38. Sanjay Prasad Sinha,
Service as AE (Civil)
CPWD, New Delhi.
39. K. Shanmukha Babu,
Service as AE (Civil)
CPWD, New Delhi.
40. S.K. Srivastava,
Service as AE (Civil)
CPWD, New Delhi.
41. Sanjay Mittal, Service as AE (Civil)
CPWD, New Delhi.
42. Om Shiva, Service as AE (Civil)
CPWD, New Delhi.
43. Sanjay Kumar,
Service as AE (Civil)
CPWD, New Delhi.
11
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
44. H.K. Bhadula,
Service as AE (Civil)
CPWD, New Delhi.
45. Arun Singh,
Service as AE (Civil)
CPWD, New Delhi.
46. Gurmeet Singh,
Service as AE (Civil)
CPWD, New Delhi.
47. S.S. Bhadauriya,
Service as AE (Civil)
CPWD, New Delhi.
48. Narender Paul,
Service as AE (Civil)
CPWD, New Delhi.
49. C.D. Bhaurao,
Service as AE (Civil)
CPWD, New Delhi.
50. Shiv Kumar,
Service as AE (Civil)
CPWD, New Delhi.
51. Shankar Singh,
Service as AE (Civil)
CPWD, New Delhi.
52. S.P. Singh, Service as AE (Civil)
CPWD, New Delhi.
53. Gurbachan Singh,
Service as AE (Civil)
CPWD, New Delhi.
54. Chandresh Kumar,
Service as AE (Civil)
CPWD, New Delhi.
55. T. Geminiganesan,
Service as AE (Civil)
CPWD, New Delhi.
12
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
56. D. Sadvali Boge,
Service as AE (Civil)
CPWD, New Delhi.
57. Mindal Singh,
Service as AE (Civil)
CPWD, New Delhi. ...Respondents
OA No. 148/2021
1. Vinod Kumar (UR), Group-B
Working in Assistant Engineer in CPWD
S/o late Shri Lachhman Das Garg,
Aged about 52 years
(morks obtained in LDCE 1999-505)
R/o T-703, Vasundra Valley Apartment,
Sector-6, Vasundra, Ghaziabad, UP.
2. Hari Om Singh, Group-B
Working in Assistant Engineer in CPWD
S/o late Shri Bajrang Bali Singh,
Aged about 55 years
(morks obtained in LDCE 1999-495)
R/o A-2/606, MS Flats,
Dev Nagar, Karolbagh,
Delhi - 110 005.
3. Sanjay Kumar Shrivastava,
Working in Assistant Engineer in CPWD
S/o late Shri Anant Sharan Shrivastava,
Aged about 50 years
(morks obtained in LDCE 1999-485)
R/o EK-27, Sector 9,
Vasundra, Ghaziabad. ...Applicants
Versus
1. Union of India through its Secretary,
Ministry of Urban Developent,
Nirman Bhawan, New Delhi - 110 011.
2. The Director General (Works)
CPWD, Nirman Bhawan,
New Delhi - 110 011.
13
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
3. Anurag Singh,
Service as AE (Civil),
CPWD, New Delhi.
4. Rajesh Kumar,
Service as AE (Civil),
CPWD, New Delhi.
5. P.K. Garg,
Service as AE (Civil),
CPWD, New Delhi.
6. G.S.S. Srinivas,
Service as AE (Civil),
CPWD, New Delhi.
7. Ajay Kumar,
Service as AE (Civil),
CPWD, New Delhi.
8. M.S. Panesar,
Service as AE (Civil),
CPWD, New Delhi.
9. Ganga Vishnu,
Service as AE (Civil),
CPWD, New Delhi.
10. Bharat Bhushan Sharma,
Service as AE (Civil),
CPWD, New Delhi.
11. Vivek Kumar Gupta,
Service as AE (Civil),
CPWD, New Delhi.
12. Dinesh Prakash,
Service as AE (Civil),
CPWD, New Delhi.
13. Renjini P.S., Service as AE (Civil),
CPWD, New Delhi.
14. S.K. Gupta,
Service as AE (Civil),
CPWD, New Delhi.
14
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
15. T. Bhairaiah,
Service as AE (Civil),
CPWD, New Delhi.
16. Surender Kumar,
Service as AE (Civil),
CPWD, New Delhi.
17. M.R. Bhavsar,
Service as AE (Civil),
CPWD, New Delhi.
18. Sukhbir Singh,
Service as AE (Civil),
CPWD, New Delhi.
19. C. Shekhar,
Service as AE (Civil),
CPWD, New Delhi.
20. A.N. Singh,
Service as AE (Civil),
CPWD, New Delhi.
21. Sanjeev Kumar Jain,
Service as AE (Civil),
CPWD, New Delhi.
22. Gurmeet Singh,
Service as AE (Civil),
CPWD, New Delhi.
23. Tirpal Singh,
Service as AE (Civil),
CPWD, New Delhi.
24. Vema Sreenivasulu,
Service as AE (Civil),
CPWD, New Delhi.
25. Dharam Raj,
Service as AE (Civil),
CPWD, New Delhi.
26. A.K. Gupta, Service as AE (Civil),
CPWD, New Delhi.
15
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
27. Raj Kumar,
Service as AE (Civil),
CPWD, New Delhi.
28. D.N. Ram,
Service as AE (Civil),
CPWD, New Delhi.
29. Birendra Singh Verma,
Service as AE (Civil),
CPWD, New Delhi.
30. R.K. Aggarwal,
Service as AE (Civil),
CPWD, New Delhi.
31. Sanjay Aggarwal,
Service as AE (Civil),
CPWD, New Delhi.
32. P. Doraya,
Service as AE (Civil),
CPWD, New Delhi.
33. Sachendra Kumar Sharma,
Service as AE (Civil),
CPWD, New Delhi.
34. D.K. Jaiswal,
Service as AE (Civil),
CPWD, New Delhi.
35. Rajib Pal, Service as AE (Civil),
CPWD, New Delhi.
36. P.K. Diwarkar,
Service as AE (Civil),
CPWD, New Delhi.
37. S.K. Jain,
Service as AE (Civil),
CPWD, New Delhi.
38. G. Rama Krishnan,
Service as AE (Civil),
CPWD, New Delhi.
16
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
39. Ram Chander,
Service as AE (Civil),
CPWD, New Delhi.
40. K. C. Pant,
Service as AE (Civil),
CPWD, New Delhi.
41. D.J. Mohan,
Service as AE (Civil),
CPWD, New Delhi.
42. Pawan Kumar,
Service as AE (Civil),
CPWD, New Delhi.
43. K. Sundhi,
Service as AE (Civil),
CPWD, New Delhi.
44. M.K. Singh,
Service as AE (Civil),
CPWD, New Delhi.
45. J.D. Tulsani,
Service as AE (Civil),
CPWD, New Delhi.
46. Manoj Rastogi,
Service as AE (Civil),
CPWD, New Delhi.
47. Amar Singh,
Service as AE (Civil),
CPWD, New Delhi. ...Respondents
OA No.2372/2021
1. Manish Raisagar (UR),
Assistant Engineer in CPWD
From LDCE-1999 (492 marks)
S/o Sh. R.S. Raisagar, Aged about 54 years,
R/o Block-B, 304, Shwet Hans Parisar,
Sector 3, D.U. Nagar, Rajpur,
Chhattisgarh - 492010. ...Applicant
17
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
Versus
1. Union of India through its Secretary,
Ministry of Housing & Urban Affairs,
Nirman Bhawan,
New Delhi.
2. Director General (Works),
CPWD "A" Wing,
Nirman Bhawan, New Delhi.
3. U.S. Dixit,
Assistant Engineer in CPWD
Through Director General (Works),
CPWD "A" Wing,
Nirman Bhawan, New Delhi.
4. Sanjeev Kumar,
Assistant Engineer in CPWD
Through Director General (Works),
CPWD "A" Wing,
Nirman Bhawan, New Delhi.
5. Vivek Kumar Gupta,
Assistant Engineer in CPWD
Through Director General (Works),
CPWD "A" Wing, Nirman Bhawan,
New Delhi. ...Respondents
Appearance for applicants:
Mr. Naresh Kaushik and Mr. Vardhman Kaushik in
OA No.148/2021
Mr. Arun Bhardwaj, senior coounsel assisted by Mr.
Anil Singal in OA No.2372/2021.
Mr. C. Mohan Rao, senior counsel assisted by Mr.
Lokesh Kumar Sharma in OA No.1079/2020.
Mr. M.K. Bhardwaj in OA No.2991/1999 and Mr. C.
Mohan Rao, senior counsel assisted by Mr. M.K.
Bhardwaj and Mr. Lokesh Kumar Sharma for
applicant no.3 in OA No.2991/2019
Appearance for respondents
Ms. Sangeeta Chandra in MA No.2467/2021 in OA
148/2021 and MA No.3296 in OA 2372/2021.
18
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
Ms. Anupma Bansal in OA No.148/2021 and OA
No.2991/2019.
Mr. Gyanendra Singh in OA 148/2021
Mr. C. Mohan Rao for respondent no.5 in OA
No.2372/2021 and in OA No.148/2021 for
respondent nos. 3, 11 & 16.
Dr. Ch. Shamshuddin Khan for R-1 & R-2 in OA
No.2372/2021.
Mr. Hanu Bhaskar with Mr. J.P. Tiwari in OA
No.1079/2021.
ORDER
Hon'ble Mrs. Manjula Das, Chairman As all these four OAs filed under Section 19 of the Administrative Tribunals Act, 1985 by the respective applicants, are inter-connected involving inter-se seniority in the grade of Assistant Engineers (Civil), Central Public Works Department (hereinafter referred to as „CPWD‟) after having been promoted against the vacancies of different vacancy years based on promotion and Limited Departmental Competitive Examinations [hereinafter referred to as „LDCEs‟) held for such vacancies, they are being disposed of by this common order, with the consent of learned counsel for the parties. However, facts of 19 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 each case, as are necessary for proper adjudication of the matter, are being extracted.
2. The applicant in OA No.1079/2020 submits that the post of Assistant Engineer (hereinafter referred to as „AE‟) in CPWD is a 100% promotion post, out of which 50% are to be promoted from amongst the Junior Engineers (hereinafter referred to as „JE‟) having 8 years of regular service in the grade, and the remaining 50% on the basis of LDCE from JEs having four years of regular service in the grade. He has further stated that since LDCE was not held for a long period between 1993 and 1998, a proposal was mooted by the official respondents on 26.08.1997 for filling up of 391 vacancies of AE (Civil) for the vacancy years 1993-94 to 1997-98 through LDCE. Year-wise break-up of such vacancies, accoding to the applicant, is as under:-
Vacancy Year No. of vacancy 1993-94 76 1994-95 124 1995-96 96 1996-97 86 1997-98 9 Total 391 20 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019
Accordingly, a notification was issued on 16.09.1988 for conducting LDCE and examination was held on 21.02.1999 [hereinafter referred to as „LDCE-99‟]. It is submitted that, though the aforesaid notification did not indicate the vacancy year for which LDCE-99 was conducted, but as per office note dated 26.08.1997 (Annexure A-2), the LDCE-99 was held for filling up the vacancies for the vacany years 1993-94 to 1997-98. It is further submitted that out of 391 notified vacancies, the respondents, vide office order dated 16.02.2001 promoted only 336 JEs to the post of AEs as according to them, excess promotions had already been made on the basis of LDCE held in the year 1992. This resulted in some aggrieved candidates approaching this Tribunal by way of filing OA No.1874/2001 which was decided on 07.08.2003, wherein directions were issued to declare result of 55 more candidates, i.e., from merit rank 336 to 391, in view of the declared 391 vacancies for LDCE-99. In the meantime, the official respondents, vide order dated 25.02.2002 promoted 65 more candidates on the basis of LDCE-99 followed by another promotion order dated 23.04.2004 21 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 promoting more JEs to the post of AEs. In all, 424 JEs were promoted as AEs on the basis of LDCE-99 and, thus, 33 promotions were already made in excess of the notified vacancies.
3. The applicant has submitted that as per DOP&T OM dated 08.09.1998, the cut off date for required eligibility of four years for the vacancy year 1998-99 was 01.01.1994, and out of 55 private respondents, only 35 fulfilled the eligibility service in the grade of JE by the cut off date and the remaining 20 respondents i.e. respondent nos.3, 6, 8, 13, 14, 16, 17, 18, 19, 21, 25, 27, 38, 41, 42, 43, 44, 51, 53 and 56 were not even fulfilling the minimum eligibility criteria for appearing in the LDCE-99. The applicant has further stated that after LDCE-99, the official respondents did not conduct LDCE(s) for three years. However, a notification was issued for holding LDCE- 2002 for filling up 131 vacancies of AEs (Civil) only on 03.05.2002. The applicant as well as some of the private respondents appeared in the aforesaid LDCE, and the result of the same was declared on 17.03.2003 on the basis of which, the applicant along with some of the private respondents, was also 22 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 promoted as AE, and all the successful candidates in the said LDCE were promoted as AE (Civil), vide order dated 31.03.2003. It is the case of the applicant that he was placed above those private respondents in seniority on the basis of merit in the LDCE-2002. It is further stated by the applicant that from the date of his promotion, four seniority lists were issued by the official respondents and, except that respondent no.26, who was promoted along with him on the basis of LDCE-2002 and was placed above him, all the remaining private respondents, who were promoted on the basis of aforesaid LDCE, being junior to him cannot be given seniority above him. It is further submitted by the applicant that number of OAs were filed by the private respondents before this Tribunal seeking promotion against vacancy year 1998-99 on the basis of LDCE-99 without impleading the affected parties, including the applicant, who are senior to them. It is stated by the applicant that it is not understood as to on what basis the private respondents are seeking promotion against the vacancy year 1998-99 on the basis of LDCE-99, while the said LDCE was held for filling up 23 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 391 vacancies for the vacancy years from 1993-94 to 1997-98, and not for the vacancy year 1998-99. Thus, the claim of the private respondents for vacancy year 1998-99 on the basis of LDCE-99 is without any basis. The applicant has further submitted that he has recently come to know that some private respondents had filed six OAs before this Tribunal seeking similar relief without impleading the affected parties as respondent(s), hence, he is not aware of the contents as well as reliefs prayed for therein. However, the details of the six OAs with their result are as under:-
1. OA No.613/2002- disposed of vide order dated 26.02.2002 directing the official respondents to consider the claim of the private respondents. The official respondents considered their claim and rejected the same on 21.05.2002;
2. OA No.288/2003 - disposed of vide order dated 30.05.2003 wherein no relief was granted to the private respondents;
3. OA No.1432/2004 - disposed of vide order dated 04.06.2004 and no relief was granted;
4. OA No.2381/2005 - disposed of vide order dated 22.11.2006 directing the official respondents to treat the OA as representation and dispose of the claim by a reasoned and speaking order. The official respondents rejected the claim of the private respondents vide order dated 06.02.2007;
5. OA 882/2007 - disposed of vide order dated 28.07.2009 directing the official respondents 24 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 to pass a speaking order. In compliance of the Tribunal's order, the official respondents passed a speaking order on 29.07.2010 holding that promtions have been made in excess of available vacancies and no vacancy is available for promoting more JE(C) to AE(C) on the basis of LDCE-99; and
6. OA No.882/2011 and 10 other OAs - A note was put up on 27.04.2012 stating that creation of 55 supernumerary posts and promotion of private respondents against such supernumerary posts would put an end to 11 OAs, which were pending before the Tribunal.
The official respondent filed an affidavit before the Tribunal stating that they have already taken cognizance of the grievance of the private respondents but unable to take any further steps in view of the pendncy of OA No.882/2011 and batch. The Tribunal, vide orders dated 04.01.2013 considered the note dated 27.04.2012 and at the best of the private respondents dismissed the OAs as withdrawn with liberty to seek redressal in case any further grievance survives in accordance with law.
4. The applicant has submitted that in view of the above, it is evident that in none of the above OAs, any relief was granted to the private respondents nor any direction was given for creation of supernumerary post(s) or to promote the private respondents. However, the official respondents issued order dated 26.06.2015 stating that "in compliance of the Hon'ble Court directives 52 supernumerary posts for AE(Civil) have been created...." and on the basis of the said directions, result of 55 more candidates/private respondents for 25 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 the vacancy year 1998-99 was sought to be declared. Some of the similarly situated officers, as the applicant, filed OA No.2430/2015 challenging the aforesaid creation of supernumerary posts for promoting private respondents purportedly "in compliance of the Hon'ble Court directives 52 supernumerary posts for AE (Civil) have been created...." .
5. It is further submitted by the applicant that official respondents subsequently issued Office Memorandum dated 03.10.2019 seeking Administrative Clearance Certificate in respect of 55 candidates/private respondents for promotion to the post of AE (Civil) for the vacancy year 1998-99 on the basis of LDCE-99, against which the applicant submitted a representation dated 11.05.2020 pointing out the alleged illegality in seeking to promote private respondents as AEs against vacancy year 1998-99 on the basis of LDCE-99. The applicant also came to know that one similar OA No.2991/2019 has also been filed by some of the AEs, who are similarly placed as the applicant, 26 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 challenging the said OM dated 03.10.2019, which is also part of the instant batch of OAs.
6. The applicant in this OA has prayed for the following relief(s):-
a. Quash the impunged OM dated 03.10.2019 seeking Administrative Clearance Certificate for promotion of private respondents i.e. respondent nos. 3 to 57 as Assistant Engineers;
b. Any other further order or orders as this Hon'ble Tribunal deem fit and proper under the facts and circumstances of the case.
7. Pursuant to notice issued by this Tribunal, the official respondents have filed their counter reply opposing the OA and have stated that previously the LDCE for the post of AE(C&E) was being conducted by the UPSC in respect of JEs who completed four years of regular service in that grade. In the year 1997, 391 vacancies available in the grade of AE (C) were reported to the UPSC through Ministry of Housing & Urban Affairs (MoHUA) for conducting the LDCE. The year-wise break-up of vacancies was as under:-
Year 1993- 1994- 1995- 1996- 1997- Total 94 95 96 97 98 Vacancies 76 124 96 86 09 391 27 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019
8. It is further stated that during the month of November, 1997, the UPSC advised the MoHUA that fixing the seniority of candidates should have been made on the basis of their rank in the merit list and not on the basis of their year-wise eligibility. Having delibrated on this issue at length, the MOHUA sent a letter dated 24.02.1998 to UPSC with the proposal that fixation of the seniority of the candidates will be made on the basis of their rank in the single merit list. Due to elapsing of timeline scheduled in issuing the notification for LDCE on 13.01.1998 and conducting the same on 02.08.1998, UPSC, vide letter dated 19.03.1998 conveyed that MOHUA/CPWD should hold the LDCE with their own arrangements. Accordingly, revised Recruitment Rules (RRs) for AE(C&E) were framed and notified on 21.06.1997 by MOHUA. As per the revised RRs, the LDCE for AE(C&E) could be conducted by the CPWD Training Institute or any other Institute duly recognized by the Central/State Government. Accordingly, the Training Institute of CPWD issued a notice dated 16.09.1998 for holding LDCE-99 on 21.02.1999 with the following conditions:- 28
OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 "The appropriate number of vacancies to be filled on the results of examination is as follows:-
i. Assistant Engineer (Civil) - 391 (including the vacancies reserved for SCs/STs); ii. Assistant Engineer (Electrical) - 68 (including the vacancies reserved for SCs/STs) The above numbers are liabe to alteration."
9. It is further submitted that meanwhile Sudama Nand Sharma and Shri Kamal Kishore Joshi filed OA No.2239/98 and OA No.2526/98 respectively before this Tribunal, and vide order dated 15.02.1999 (Annexure-E), the Tribunal disposed of the OA directing the respondents to take following precautions while conducting the selection and finalizing the process thereof:-
"i. Segregate both vacancies and eligibility year- wise. This is to ensure that an employee after having qualified in the examination does not get the benefit of seniority against the year when he was not even eligible for the same.
ii. existing rules for filling up the posts meant for reserved category candidates shall be adhered to as prescribed by the DoPT in its OM dated 2.7.97. While communicating vacancies of 391 JEs respondents have only indicated that the percentage of reservation for SC/ST will be indicated only later on. Since reservation in promotion in such cases are to be ensured as per law laid down, respondents shall strictly follow instructions for maintaining the roster and running account register to look after the interests of backward classes.
iii. Vacancies of 391 shall be recalculated to ensure that between reservations between the two groups from the years 1998 to 1999 have not 29 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 been tilted to unduly favour one of the two contending groups.
iv. We are also inclined to agree with the respondents' submission that "present practice of keeping vacancy slots for being filled up by direct recruitment of later years thereby giving them unintended seniority over promotees who are already in position could be dispensed with". The above precautions shall be taken before finalizing the present selection on hand."
10. The official respondents have submitted that accordingly, year-wise vacancies of AE(C) were re- calculated as under:-
Year 1993- 1994- 1995- 1996- 1997- 1998- Total 94 95 96 97 98 99 Vacancies 0 197 75 66 8 0 346 Further, in the earlier LDCE-92, 61 excess promotions were made in the LDCE quota. These excess promotions of 61 candidates were adjusted by reducing the vacancy of the quota meant for the year 1994-95, break-up of which is as under:-
Year 1993- 1994- 1995- 1996- 1997- 1998- Total 94 95 96 97 98 99 Vacancies 0 197- 75 66 8 0 285 61=136
11. It is further submitted that second cadre review was done in the year 1995, and 335 posts of AE(C) were created. Out of these 335 vacancies, 284 were allocated to seniority quota and the remaining 51 to 30 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 LDCE quota. As these vacancies were created in 1995, they were added in the vacancy year 1995-96 as under:-
Year 1993- 1994- 1995- 1996- 1997- 1998- Total 94 95 96 97 98 99 Vacancies 0 136 75+51= 66 8 0 336 126 Accordingly, 336 candidates were promoted to AE(C) under LDCE-99. Since three ST quota vacancies of 1994-95 remained unfilled, they were carried forward and filled in the vacancy year 1995-96, details of which are as under:-
Year 1993- 1994- 1995- 1996- 1997- 1998- Total 94 95 96 97 98 99 Vacancies 0 133* 129* 66 8 0 336 *3 vacancies remained unfilled under ST quota of 1994-95, hene were carried forward and filled up in 1995-96.
12. It is further submitted that out of 335 vacancies available on account of cadre review, 135 posts remained unfilled for quite a long time and, hence, elapsed. All efforts were made for revival of these posts including obtaining approval from Deptt. of Expenditure in September, 2001, before utilizing these vacancies in the field units. Out of the revived vacancies, 65 were given to LDCE quota (53 for the year 1997-98 and 12 for 1998-99). After taking into 31 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 account these vacancies, the position emerged as under:-
Year 1993- 1994- 1995- 1996- 1997- 1998- Total 94 95 96 97 98 99 Vacancies 0 136 126 66 8+53 0+12 401 =61 = 12 Accordingly, result from the LDCE-99 was also declared for another 65 posts, vide order dated 25.02.2002. After declaration of the result, total vacancies allotted for LDCE quota are as under:-
Year Promotion made Promotion made in LDCE in seniority quota quota 1993-94 00 00 1994-95 197 136 (197-61) 61 excess LDCE promotions made prior to 1993 adjustments 1995-96 75 75 1996-97 66 66 1997-98 08 8+53**=61 1998-99 00 12 Total 346 350 **53 vacancies were allotted to the year 1997-98 and remaining to 1998-99 to restore 65 vacancies, which were diverted to cadre review seniority quota in the year 1997-98 and 1998-99.
Thus, total vacancies given to LDCE quota were 401 (336+65), as against 391 declared in the notification.
Meanwhile, some aggrieved candidates filed OA No.1874/2001 (Ajmer Singh & Ors. vs. Govt. of India & Ors) for the vacancies during the year 1993- 94 and seeking declaration of result for all the 391 vacancies, which was allowed by this Tribunal, vide 32 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 order dated 04.01.2002 directing the respondents to declare the result of LDCE-99 relating to all 391 notified vacancies and also to make appointments to the same extent, in accordance with law and rules and further that appointees up to 391 in merit should get all consequential benefits. It is further stated that against the order dated 04.01.2002 passed by the Tribunal, respondents carried the matter to the Hon‟ble High Court of Delhi through CWP No.2621/2002, which was remanded to this Tribunal, vide order dated 24.09.2002, with the following directions:-
"14. We, therefore, set aside the order and remand the case back to the learned Tribunal for fresh look into the matter and adjucate the same completely in all respects after taking into consideration all the submissions made by both parties. The petitioner would be entitled to seek appropriate amendment of its reply before the learned Tribunal and place on record all the necessary documents. The private respondents herein shall also be permitted to raise all the contentions raised herein. After bestowing consideration to all these aspects, the learned Tribunal shall decide the issue involved."
13. Another set of candidates filed OA No.613/2002 (Gianender Kumar & Anr. Vs. Govt. of India & Ors.), claiming that number of vacancies available for 1998-99 would be at least 71. The aforesaid OA was 33 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 disposed of by this Tribunal, vide order dated 26.02.2002 directing the respondents to treat the OA as a representation and pass appropriate orders with regard to the number of vacancies to be filled up through LDCE-99 for the period from 01.04.1998 to 31.03.1999. In compliance thereof, the respondents considered the claim of the applicants therein and rejected the same, vide order dated 21.05.2002. Thereafter, the applicants therein filed MA No.1180/2002 pointing out that while issuing the aforesaid order dated 21.05.2002, CPWD considered only vacancies which arose on account of retirement/resignation, and failed to include the vacancies available due to promotion from the grade of AE to EE. This Tribunal, while deciding the MA vide order dated 08.07.2002, directed the respondents to re-calculate the vacancies and also to reconsider the claim of the applicants therein. The applicant therein filed another MA No.2227/2002 for implementation of the order dated 26.02.2002 in toto, but the same was rejected by this Tribunal, vide order dated 30.12.2002 on the ground of pending CWP No.2621/2002 before the Hon‟ble High Court of 34 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 Delhi filed by the respondents againt the Tribunal‟s order dated 04.01.2001 in OA No.1874/2001 (supra).
14. It is further submitted by the respondents that Gianender Kumar and others filed a fresh OA No.288/2003 seeking direction to the respondents to re-calculate the 1998-99 vacancies under LDCE-99 quota in the grade of AE as the total vacancies available were 156 (50%, i.e., 78 ought to have been filled up through LDCE-99), which was disposed of with a direction that the matter shall abide by the decision of the Tribunal in Ajmer Singh‟s case (supra).
15. This Tribunal, while deciding the case of Ajmer Singh (supra), vide order dated 07.08.2003, issued the following directions:-
"7. Having regard to the principles laid down in order dated 15.02.1999 in OA Nos.2239/1998 and 2526/1998 (Annexure-2), we are of the firm view that adjustment of 61 excess LDCE promotions prior to 1993 against the year 1993- 94 at one go is totally unjustified. As a matter of fact, respondents should not have resorted to excess recruitment to touch an extent from LDCE- 1992. If at all administrative exigencies warranted adjustment it should have been kept within reasonable limits. In any case, such a large number could not have been adjusted against the vacancies of one year. They could have been evenly spread over a period of time. In the interest of justice and finding merit in the contention raised on behalf of applicants, though 35 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 we do not intend issuing any directions adversely affecting the rights of the private respondents at this stage, we direct respondents to declare results of 55 more candidates, i.e., beyond merit rank 336 and upto 391, in view of the declared number of vacancies 391 for LDCE-1999. All these 55 candidates should be adjusted against the 1994-95 LDCE quota. 6 candidates of 61 adjusted from LDCE 1992 against 1993-94 would be adjusted against 1993-94 quota. The remaining excess of LDCE-1993 whose result would be declared and promoted under LDCE quota whall be given consequential benefits. The entire exercise as directed above shall be completed within a period of three months from the date of receipt of a copy of this order."
Accordingly, vacancies were re-calculated on the basis of the aforesaid directions of this Tribunal, which are as under:-
Year Old vacancies Revised vacancies 1993-94 00 06 1994-95 136 174 1995-96 126 115 1996-97 66 55 1997-98 61 50 1998-99 12 01 Total 401 401
16. It is averred by the respondents that in order to avoid retrospective reversion of 22 AEs, inter alia, to implement seniority for the years 1994-95 and 1995- 96 and Tribunal‟s order dated 07.08.2003, 22 supernumerary posts of AE(C) were created in concurrance with the Ministry of Finance, vide ID No.224/DS (EG)/04 dated 16.04.2004, on the 36 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 request of the MoHUA based on DoPT advice. The consolidated result of 423 candidates (336+65+22) were published on 30.08.2004 for filling up the revised 424 vacancies under LDCE-99 against 391 vacancies, which are extracted as under:-
Year Revised Vacancies 1993-94 06 1994-95 176 1995-96 115+1=116 1996-97 55 1997-98 50+11***=61 1998-99 01+11***=12 Total 424
***22 persons have been adjusted against the 22 supernumerary posts to avoid reversion. # One pereson was promoted as per direction dated 24.09.2002 of this Tribunal passed in OA No.3457/2001 filed by Sudershan Singh.
Thus, 23 posts were adjusted against the vacancies meant for the year 2004-05.
17. It is further submitted by the respondents that while re-calculating year-wise vacancies, it transpired that 30 officers appeared in lists pertaining to promotional vacancies and the ones caused on account of retirement, which resulted in increase of 15 vacancies of LDCE quota spread over different years. After adjusting these 30 officers calculated twice, as well as 61 excess vacancies [as per direction of this Tribunal in Ajmer Singh's case 37 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 (supra)], the total number of vacancies worked out to be 405, as detailed hereunder:-
Year 1993- 1994- 1995- 1996- 1997- 1998- Total 94 95 96 97 98 99 Total vacancies 153 177 242 103 132 156 963 as per para 8 of counter affidavit by deptt. In OA No.288/2003 Less 30 no. Of 02 11 09 08 030 vacancies due to calculated twice Aggregate 175 231 094 124 156 933 vacancies Vacancies to 077 087 115 047 062 078 466 be filled through LDCE-99 (Exam quota-
1:1 ratio) Vacancies to -06 -11 -11 -11 -11 -11 -61 be adjusted (*) (as per direction of the Tribunal in OA No.1874/2001) Net vacancies 071 076 104 036 051 067 405 available year-
wise 147 The year-wise distribution of above vacancies was as under:-
Year Gen SC ST Total
1993-94 30 08 30+3=33 71
1994-95 60 10 6 76
1995-96 80 16 08 104
1996-97 28 05 03 36
1997-98 39 08 04 51
1998-99 52 10 05 67
Total 289 57 59 405
18. The respondents further submitted that
Gianender Kumar and others filed another OA 38 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 No.1432/2004 praying for direction to the respondents to fill up 78 vacancies out of total 156 vacancies of AE(C) by way of LDCE for the year 1998- 99, which was disposed of by this Tribunal, vide order dated 04.06.2004, directing that the remedy available to the applicants therein was to file MA in OA No.288/2003. Accordingly, they filed MA No.1518/2004 in OA No.288/2003, which came to be disposed of vide order dated 11.08.2005, observing that:
"As regards calculation of vacancies and rights of applicants to earmark vacancies, the issue is contentious. As such, we are of the considered view that the same cannot be agitated in the present MA when the respondents have already calculated the vacancies. Accordingly, we dispose of the present MA with liberty to the applicants to assail their grievance in original proceedings".
It is stated that meanwhile one Ramanand filed OA No.497/2005, which was disposed of, vide order dated 11.08.2005, with a direction that "the promotions made as per the quota assigned to seniority shall not be disturbed but promotions of candidates beyond the quota in seniority are set aside. Respondents shall consider the case of applicant and other similarly circumstanced in the 39 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 LDCE quota for promotion." Subsequently, Gianender Kumar and others filed yet another OA No.2381/2005 for filling up of 78 vacancies of 1998- 99 under LDCE-99 in which, this Tribunal, vide order dated 22.11.2006, issued directions to the respondents to treat the OA as representation and dispose of claim of the applicants therein by passing a reasoned and speaking order. Accordingly, the respondents by passing a speaking order dated 06.02.2007 rejected their claim. Further, Gianender Kumar and others filed yet another OA No.882/2007 against the respondents‟s order dated 06.02.2007. The aforesaid OA was disposed of, vide order dated 28.07.2009 with the following directions:-
"....we find the claims of the applicant as justified. Taking the averments of the official respondents in para 8 of their counter affidavit. In OA 288/2003 which admitted the total number of actual vacancies in the year 1998 as being 156 of which as per the 50:50 quota, 78 should have been gone to LDCE, which admittedly has not happened in the situation. The OA is, therefore, disposed of by quashing the impugned orders and directing the respondents to re-examine the claim of the applicants on the basis of the LDCE 1999 by convening a review DPC. In the event of their securing a place above or just below those who have already been appointed, they should be given their due by promoting them as Assistant Engineer (C) against the vacancies of 1998-99 only. Needless to say in such a situation the applicants would also be entitled to notional seniority from the date of antedated promotion only. This should be complied by a speaking order 40 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 to be passed by the respondents within a period of three months from the date of receipt of a copy of this order...."
Against non-compliance of the above direction of this Tribunal, the applicants therein filed CP No.447/2010. Meanwhile, in compliance of the above order, the respondents issued a speaking order dated 29.07.2010, rejecting the claim of the applicants in the aforesaid OA.
19. It is the case of the respondents that they have already filled 424 posts of AE(C) against 405 posts. The year-wise promotion done earlier has now been re-adjusted as per revised year-wise vacancy. On the basis of recalculation of vacancies, 424 officers were allocated vacancy year, and the excess 19 officers would be adjusted against 22 supernumerary posts created earlier. As per the respondents, it is clear that against the 67 vacancies allocated for 1998-99, they have adjusted 67 officers by re-allocating the posts and excess promotions made in previous year. In the circumstances, 19 excess promotions over and above 405 posts for LDCE-99 having been made, no vacancy is available for promoting more JE(C) to AE 41 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 (C) against LDCE-99. However, this Tribunal, vide order dated 16.08.2010, disposed of the CP No.447/2010 with the following order:-
"Vide an order dated 29.07.2010, the respondents have passed a reasoned order. With liberty to the applicants to challenge it in an appropirate proceeding, the CP stands disposed off."
20. Thereafter, Gianender Kumar & others filed OA No.882/2011 and another ten OAs were filed challenging the speaking order dated 29.07.2010, which all were dismissed as withdrawn, vide a common order dated 04.01.2013, with liberty to the applicants therein to seek redressal of any further surviving grievance, in accordance with law. The order reads as under:-
"All these Applications involving common questions of law and facts have been tagged and heard together and are being disposed of by this common order.
2. At the very outset, Shri D.S. Mehandru, learned counsel for the respondents in all the cases, has drawn our attention to the additional affidavit filed by the applicants whereby information from the official records having bearing on the issues under consideration in these proceedings have been brought on record by way of this additional affidavit. The information so filed includes a copy of the note dated 27.4.2012 put up to DG for approval on respect of promotion of Junior Engineers (Civil) through Limited Departmental Competitive Examination 1999. Paras 19 & 20 3 of the said note read as follows:-42
OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019
19. The department has already filled 424 posts of Assistant Engineers (Civil) against the vacancy of 405 posts. The order number by which the officers have been promoted is at Annexure -B. The year wise promotion done earlier has now been readjusted as per revised year wise vacancy. List of 424 officers allocating them vacancy year as per reworked vacancy is as Annexure-C. The excess 19 officers will be adjusted against the 22 supernumerary post created earlier.
For examining the claim of the applicants in above OAs a consolidated result of LDCE 99 was called for from examination cell of Training Division of CPWD. After obtaining the complete result sheet from examination cell on year wise merit list have been prepared which is placed at F/A. After going through the year wise merit list, it is observed that 74 JEs who were not eligible for promotion to the grade of AE on the basis of LDCE 99 got promotion and total 53 candidates are found eligible for promotion to the grade of AE (Civil) which details are placed at F/B. This fact has also been reflected in the judgment of the Hon'ble CAT dated 07.08.2005 at para-7 above. The claim of the Junior Engineer has on to be in order and required the promotion to the post of AE. The entire process calls for the promotion of only 11 junior Engineer to the post of AE. By doing so we will not only redress the grievances of the JEs but also settle 11 court cases in this matter.
20. If approved, we may request examination cell of training division to publish the result of rest 55 (76-12) candidates of the year 98-99 from the LDCE-99.
From the records, it appears that the matter was discussed between the ADG (S&P) and DG on 1.5.2012. Since the cases have been sub judice, the respondents have not taken any decision on the proposal contained in the note as aforesaid. In view of the aforesaid, Shri D.S. Mehandru, learned counsel for the official respondents, submitted that since the respondents have already taken cognizance of the applicants' grievances and claim put forth by them for redressal but could not proceed further in 43 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 the matter on account of pendency of these Applications, let these Applications be withdrawn by the applicants to enable the respondents to take necessary measures in the case and if there upon any grievance of the applicants still survive, they may seek redressal thereof as per the law.
3. Shri Anil Singal, learned counsel for the applicants stated that applicants are interested in seeking relief rather than being bogged down by technicalities. If the respondents are inclined to take necessary action, he is willing to withdraw these applications. He, however, urged that the respondents be directed to take necessary action in a fixed time frame. He further supplemented that though the respondents have taken note of 11 OAs in their note referred to above, there are three more which have been filed during the intervening period and the cases of the applicants in these Applications filed subsequently may also be taken up along with 11 OAs.
4. Since the Applications are being withdrawn, we do not find any warrant for issuing any specific directions to the respondents as to the time frame. Suffice it to say that the respondents shall in all probability will take expeditious action in the matter.
5. In view of the aforesaid, Applications are dismissed as withdrawn with liberty to the applicants to seek redressal in case any further grievance survives in accordance with law."
21. The respondents further submitted that after the aforesaid order, the respondents examined the matter in detail, worked out the final year-wise vacancies on the basis of records and submitted the following detail before the Tribunal:-
1993-94 1994-95 1995-96 1996-97 1997-98 1998-99 Total 71 76 104 36 51 67 405 44 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 Further, the promotions already made through order dated 30.08.2004 against these vacancies were as follows:-
1993-94 1994-95 1995-96 1996-97 1997-98 1998-99 Total 0 173* 123 55 61 12 424 *One promotion was made as per judgment of this Tribunal dated 24.09.2002 in OA No.345/2001 filed by one Sudershan Singh.
22. The respondents further submitted that in order to give effect to the observations of this Tribunal made in its order dated 04.01.2013, there were two options left with the department, i.e., either to demote 52 AEs, or, to create 52 supernumerary posts to adjust them. Therefore, in order to avoid the retrospective reversion and to sustain the seniority position of already promoted AEs, 52 supernumerary posts had to be created to finalize the issue and to avoid further litigation. Overall scenerio on promotions including 67 vacancies for the year 1998-99 was to be as under:-
Year Vacan- Remarks
cies
1993-94 0
1994-95 173 71 (against vacancies of 1993-94)
+76 (against vacancies of 1994-95) +26 (Supernumerary posts) = 173 1995-96 123 104 (against vacancies of 1995-96) +19 (Supernumerary posts)=123 1996-97 55 36 (against vacancies of 1996-97) +19 (Supernumerary posts)=55 1997-98 61 51 (against vacancies of 1997-98) +10 (Supernumerary posts)=61 1998-99 67 12 (Already promoted against vacancies 45 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 of 1998-99) + 55 (to be promoted now) = 67 Total 479
23. The respondents further submitted that approval of 22 supernumerary posts was already accorded by Ministry of Finance ID No.224/DS(EG)/04 dated 16.04.2004 with the condition that the same were to be adjusted against the vacancies upto the year 2004-05. Therefore, a proposal for creation of 52 supernumerary posts of AE(C) [74-22=52] to adjust the remaining 52 JEs, was processed seeking approval of the HOHUA and Deptt. of Expenditure, Min. of Finance. The Ministry of Finance, Deptt. of Expenditure, vide their ID note dated 11.06.2015 accorded approval for creation of 52 supernumerary posts of AE(C) in CPWD to adjust the officers promoted in excess from JEs to the grade of AEs(C) through LDCE-99 for the vacancies pertaining to the years from 1993-94 to 1998-99. After obtaining such approval for creating 52 supernumerary posts, result for 55 candidates for the vacancy year 1998-99 through LDCE-99 was declared vide order dated 07.07.2015, whereby the applicant and other 54 AEs were selected as 46 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 AEs(Civil) for the year 1998-99. In the meantime, Anurag Singh & others, who were selected and appointed under LDCE-2002 against the AE(C) vacancies, filed OA No.2430/2015 challenging the order dated 26.06.2015 creating 52 supernumerary posts of AEs on the basis of the result declared on 07.07.2015. The aforesaid OA was dismissed by this Tribunal, vide order dated 03.10.2016. While the eligible JEs, who were declared qualified on the basis of the result of LDCE-99, were not granted promotion to the post of AE(C) on creation of 52 supernumerary posts, CP No.219/2017 in OA No.3683/2011 was filed by one Daulat Ram Varma, JE(C) before this Tribunal for implementation of its order in toto. The respondents have submitted that they apprised the Tribunal that it had already been decided to issue promotion orders in respect of 55 candidates, who had already qualified on the basis of LDCE-99. Further, to promote these candidates as AEs(C) under LDCE-99, they have also sought administrative clearance certificate in respect of 55 candidates, vide order dated 03.10.2019, impugned in this OA. However, before promotion orders were 47 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 issued, OA No.2291/2019 titled as Anurag Singh & Ors. vs. Union of India & Ors. came to be filed and this Tribunal, vide its order dated 09.10.2019 issued the interim order, as under:-
"....direct maintenance of status quo in relation to the promotion to the post of Assistant Engineer (Civil) for the vacancy year 1998-99 through LDCE of 1999 in pursuance of OM dated 03.10.1999..."
However, in the aforesaid OA, this Tribunal, vide its order dated 18.12.2019 modified the interim order, as under:-
"Since the litigation was pending for more than a decade, we vacate the interim order and permit the respondents to implement the order impunged in the OA. However, the issue pertaining to the seniority of the persons, appointed throuogh the impugned order, shall be decided finally in the OA."
Meanwhile, this Tribunal, vide its order dated 19.02.2020 in CP No.219/2017, issued the following directions:-
"The matter has been heard at length. This matter is pending for implementation since more than a decade in respect of applicants who were declared successful. Accordingly, the respondents are now directed to issue promotion orders within a period of four weeks from today failing which the current incumbents of the post of respondent nos. 1 & 2 shall be personally present in court on the next date of hearing."
24. In compliance of the aforesaid order of this Tribunal, the respondents issued the promotion order dated 12.01.2021 in respect of all eligible 48 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 JEs(C) to AEs(C) for the vacancy year 1998-99 on the basis of LDCE-99 with a rider that their seniority will be fixed in accordance with the final order to be passed by this Tribunal in pending OA No.2991/2019. Accordingly, the said CP No.219/2017 was also dismissed as withdrawn, vide order dated 25.01.2021. The respondents have, therefore, prayed for dismissal of OA No.1079/2020.
25. The facts and relief claimed in other three OAs are more or less identical as in OA No.1079/2020; the order(s) challenged is/are also the same, and the stand taken by the official respondents is no different. Therefore, facts of these cases need no further elaboration. However, in some of the OAs, private respondents have filed their respective counter affidavits, which need to be incorporated in this order for the sake of proper adjudication. Some of the private respondents in OA No.2991/2019 have filed a short counter affidavit wherein it has been stated that in CPWD, there is a service called Central Engineering Service Group-B having two categories, i.e., „Civil‟ and „Electrical‟. The hierarchy in the 49 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 service is JE, AE and EE etc. They have further submitted that presently they are concerned with „Civil Engineer‟ category and promotion from JE (Civil) to AE (Civil) only. It is averred that as per Recruitment Rules (hereinafter referred to as „RRs‟), 50% of the posts are filled up by promotion on the basis of seniority and 50% by LDCE. Undisputedly, one LDCE was held in the year 1992, and from 1993 to 1998, no LDCE was held. On 21.02.1999, LDCE- 99 for 391 posts of AEs was held and result thereof was declared on 16.02.2001 for year-wise vacancies from 1994-95 to 1997-98 but no result was declared for the vacancy year 1998-99. They have further submitted that out of 391 declared vacancies, only 336 candidates were declared qualified whereas no one had been declared qualified against the vacancies of the vacancy year 1998-99 as the private respondents were eligible only against the posts of the said year. In this regard, OA No.613/2002 was filed before this Tribunal followed by OA No.288/2003, which were diposed of by this Tribunal directing the respondents to dispose of the representations made by the private respondents for 50 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 declaration of result of 55 more candidates under LDCE-99 and appoint them. It is further submitted that when the representations of the private respondents were rejected, they filed another OA No.882/2007, which was decided on 28.07.2009 directing the respondents to re-examine the claim of the present private respondents on the basis of LDCE-99 by convening review DPC and in the event of their securing a place above and just below those who have already been appointed, they had to be given their due promotion as AE(C) against the vacancy of 1998-99 only. It is the case of the private respondents that since the official respondents were not proceeding further pursuant to the above directions, the private respondents filed bunch of OAs led by OA No.882/2011. In those OAs, an affidavit was filed on behalf of the official respondents stating therein that they had already taken cognizance of the grievances of the applicants therein but were unable to proceed further in view of pendency of that bunch of cases. Noting the aforesaid statement of the official respondents, this Tribunal allowed the applicants to withdraw their 51 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 respective OAs with liberty to seek redressal in case any grievance survived. It is further submitted that when no action was taken on the above statement made in the affidavit filed by the official respondents, one of the private respondents filed one MA 1961/2013. Meanwhile, the official respondents, vide order dated 07.07.2015, declared the result of additional 55 candidates i.e. private respondents herein on the basis of LDCE-99. Subseqently, the official respondents held another LDCE-2002 wherein the candidates, who are applicants in OA No.2991/2019, were declared successful and promoted as AE (Civil), vide order dated 31.03.2003 making such promotions subject to outcome of the pending OAs before this Tribunal. It is further alleged that after declaration of the result by order dated 07.07.2015, the applicants herein made an attempt to scuttle the same by filing OA No.2430/2015 suppressing many material facts and without impleading the private respondents and/or affected parties as respondents, and obtained interim order. After coming to know about the aforesaid interim order, some of the private respondents sought their 52 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 impleadment as well as vacation of stay. That OA was ultimately dismissed, vide order dated 03.10.2016 on the ground of non-joinder of necessary parties. Thereafter, the private respondents filed CP No.219/2017, which was dismissed as withdrawn, vide order dated 25.01.2021.
26. The applicants in OA No.2991/2019 have filed rejoinder to the short reply filed on behalf of the private respondents denying the averments of the private respondents and reiterating the facts taken in the OA.
27. Private respondent nos. 3, 11 and 16 in OA No.148/2021 have also filed their counter affidavit wherein it has been stated that the OA is not maintainable as the applicants are seeking to enforce vague orders obtained from this Tribunal without making the private respondents as party respondents in those proceedings. It is further submitted that the applicants and other similarly circumstanced candidates filed various OAs but were not successful. Even there are/were no direction with regard to 53 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 creation of supernumerary posts or to promote the applicants as AEs against the vacancy year 1998-99 on the basis of LDCE-99, as their case was never adjudicated on merit by the court/Tribunal. It is further submitted that the claim of the applicants that they are senior to the private respondents and are entitled to promotion on the basis of LDCE-99 is baseless, as they are not entitled for seniority based on the vacancy year 1998-99, as they were promoted as AEs on the basis of LDCE-2002, and were assigned correct seniority based on their merit position. It is further stated that the Tribunal‟s order dated 18.12.2019 passed in OA No.2991/2019, which OA is part of this common order, directing the issue pertaining to the seniority of the persons appointed through the impugned order to be decided finally in the OA, is binding on the parties in the said OA. Therefore, the private respondents have prayed for dismissal of OA No.148/2021.
28. Ms. Anupma Bansal, learned counsel for official respondents in OA No.2991/2019 filed written submissions, perusal whereof reveals that Recruitment Rules for the post of AEs provide that 54 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 the post is to be filled up 50% by promotion and 50% by LDCE from amongst JEs with 4 years‟ regular service in the grade. It is further submitted that a notification for holding LDCE-99 was issued on 16.09.1998 for approximately 391 vacancies of AEs for the years 1993-94 to 1997-98, which were liable to alteration, break-up whereof reads as under:-
1993-94 1994-95 1995-96 1996-97 1997-98 Total 76 124 96 86 09 391 There have been series of court cases in which various directions were issued from time to time asking the official respondents to calculate and re-
calculate the vacancies and then to declare the result of LDCE-99. The dates of declaration of results of LDCE-99 with reasons as has been provided by the official respondents are as under:-
Result Result declared Reasons Action dt for vacancies 16.02. Result declared Judgment Vacancies worked out 2001 for 336 dt.15.02.1999 in OA to 346.
vacancies 2239/98 & OA
2526/98 61 excess promo-tions
Applicant no.1 of LDCE 1992
& 3 in OA -Segregate vacancies reduced.
No.2991/19 and year wise
failed eligibility. 51 vacancies fell to
LDCE quota due to
Applicant no.2 -Recalculate vacancies cadre review.
was not eligible to ensure 1:1 ratio 346-61+51=336
between seniority
quota and LDCE from
1993 to 1999.
25.02. Result declared Judgment dt. 135 posts lapsed.
2002 for 65 vacancies 04.01.2002 in OA Were revived.
55
OA No.148 of 2021 with
OA Nos.2372/2021, 1079/2020
and 2991/2019
1874/01
65 fell to LDCE quota.
Declared result of all
391 vacancies.
30.08. Consolidated Judgment dt. 22 supernumerary
2004 result of 423 07.08.2003 in OA Posts were required to
declared 1874/2001(After be created to avoid
336+65+22=423 remand by High Court) reversion of persons
(Only First -61 excess promotions who were promoted in
direction be spread out upto excess.
implemented) 1998-99.
-Declared result of 55 M/o Finance
more i.e. beyond 336 to approved it on
391 merit rank with 16.04.2004.
consequential benefits.
Re-examined.
Judgment dt. Rejected on
28.07.2009 in OA 29.07.2010.
882/07
-re-examined the claim OA 882/2011 filed.
of the applicants that While examining OA
for the year 1998-99, 882/2011, year wise
78 vacancies should merit was prepared
have gone to LDCE which revealed that
quota. 74 (22+52) ineligible
Jes got promoted in
-Would also be entitled LDCE-1999.
to notional seniority.
There were two
Judgment dt. options - either to
04.01.2013 in OA revert 52 or to create
882/2011 52 super- numerary
posts.
07.07. Resulst M/o Finance
2015 declared for 55 approved creation of
vacancies 52 super-numerary
posts to avoid
reversion on
11.06.2015.
29. As is evident from the above table, initially the notified vacancies were 391 but in view of diverse decisions of this Tribunal in different OAs during the last more than 20 years, the vacancies kept on fluctuating from time to time, respondents kept on declaring results of LDCE-99 and in total 478 vacancies were filled up from 1992 to 1999 including 74 supernumerary posts created in concurrence with 56 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 the Department of Expenditure. It is stated that in the case of Ajmer Singh (supra), directions were given to spread out 61 excess promotions for the years 1992 to 1998-99 and thereafter to declare result of 55 more candidates in merit list beyond 336 to 391. It is also seen that prior to this, two results had already been declared in compliance of the decision of this Tribunal whereby result of 401 candidates (336+65=401) stood declared, whereby 10 posts were in excess than the notified 391 vacancies. However, at the verge of compliance of the decision in Ajmer Singh's case (supra), when vacancies were being worked out, it was noticed that 22 persons got promoted in excess, and to avoid their reversion, 22 supernumerary posts were created with the approval of Ministry of Finance on 16.04.2004. Subsequently, in Gianender Kumar's case (supra) directions were issued to re-examine the representation of the applicants therein, which was rejected, vide order dataed 29.07.2010 and the said rejection order was again challenged by way of OA No.882/2011, which came to be decided, vide order dated 04.01.2013. While examing the aforesaid decision of this 57 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 Tribunal, the official respondents prepared year-wise merit list and noticed that in fact 74 JEs, who were not eligible for promotion, were promoted as AEs in terms of LDCE-99. Out of these 74, 22 had already been adjusted by creation of supernumerary posts on 16.04.2004, and remaining 52 were either required to be reverted and/or adjusted to avoid their reversion. In this regard, Ministry of Finance approved creation of 52 supernumerary posts on 11.06.2015. In this view of the matter, the official respondents seem to be right in creating 74 supernumerary posts, which were found bonafide by the Ministry of Finance, vide their letter dated 16.04.2004 and 11.06.2015. This fact also finds support from the decision in the matter of Sham Sunder Sharma vs. State of UP [1986 (Supp) SCC
477) wherein the Hon‟ble Supreme Court approved the decision and action of the State Government for creation of 1300 supernumerary posts of Sub Inspectors of Police to avoid reversion of Sub Inspectors. Hon‟ble High Court of Delhi in Union of India vs. Dev Raj [2001 (6) SLR 699] also held that merely because some administrative problems arose, 58 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 is no ground for reversion of the candidates and directed the Government to revive their proposal for creating supernumerary posts to make suitable administrative adjustments so as to allow the candidates to retain their present position and status.
30. It is also submitted by the official respondents that so far as seniority of AEs promoted pursuant to LDCE-99 and LDCE 2002, is concerned, AEs promoted pursuant to LDCE-99 exam will rank senior to those promoted pursuant to LDCE-2002.
31. We have heard Shri Naresh Kaushik, Mr. Arun Bhardwaj, senior counsel assisted by Mr. Anil Singal, Mr. C.Mohan Rao, senior counsel assisted by Mr. Lokesh Kumar Sharma, and Mr. M.K. Bhardwaj, learned counsel for the applicants; Mr. Gyanendra Singh, Ms. Anupma Bansal, Ch. Shamshuddin Khan and Mr. Hanu Bhaskar, learned counsel for official respondents; Mr. C.Mohan Rao, senior counsel assisted by Mr. Lokesh Sharma, learned counsel for the private respondents in respective OAs. We have 59 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 also carefully perused the material on record and the judgments relied upon by the respective parties.
32. Sh. Naresh Kaushik, learned counsel for the applicants in OA No.2372/2021 has argued that the applicants have challenged the seniority list of AEs(C) as on 01.01.2021 issued by the respondents vide order dated 06.04.2021 on the ground that the applicants are entitled to the seniority on the basis of LDCE-99 over the candidates, who were promoted on the basis of LDCE-2002, and they cannot be made junior to them once the seniority of the applicants has already attained finality in view of the decision of this Tribunal in Gianaender Kumar & Anr. [OA No.882/2007 decided on 28.07.2009] after long drawn litigations over a decade. Learned counsel has further added that the results of LDCE-99 were declared on three occasions on the directions of this Tribunal in various matters from merit rank 336 to 391, as mentioned in the foregoing paragraphs, and to adjust them at an appropriate place, supernumerary posts were created with the approval of the Ministry of Finance, Department of Expenditure. He has further argued that seeking 60 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 administrative clearance for the purpose of granting promotions from AE(C) to EE(C) to their juniors on ad hoc basis on the basis of the seniority list recently issued, vide order dated 06.04.2002, is in gross violation of the settled seniority position in the grade of AE(C), which ought not to be permitted to be unsettled at this stage. Learned counsel further argued that OA No.882/2011 with batch filed by (Gianender Kumar & Ors) was also dismissed as withdrawn, vide order dated 04.01.2013. He further argued that in OA No.2991/2019, this Tribunal, vide interim order dated 09.10.2019 directed maintenance of status quo in relation to the promotion to the post of AE(Civil) for the vacancy year 1998-99 through LDCE-99 in pursuance of OM dated 03.10.2019, and the said interim order was vacated by this Tribunal, vide its order dated 18.12.2019 and modified to the extent that "Since the litigation was pending for more than a decade, we vacate the interim order and permit the respondents to implement the order impugned in the OA. However, the issue pertaining to the seniority of the persons, appointed through the impunged order, 61 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 shall be decided finally in the O.A.". Learned counsel has, therefore, argued that since the seniority has alraedy attained finality, the OA No.2991/2019 deseres to be dismissed along with quashing of the seniority list issued by the official respondents, vide order dated 06.04.2021 and impugned in OA No.2372/2021.
33. On the other hand, Sh. C. Mohan Rao, learned counsel for the applicants in OA No.1079/2020 and for private respondents in OA Nos.2372/2021 and 148/2021, has vehemently argued that any decision of this Tribunal, referred to in these batch matters, is not binding in case of the candidates being represented by him who were never impleaded as party respondents in these cases. In support of his arguments that no adverse order can be passed against a candidate behind his back without impleading him as party respondent, the learned counsel has relied upon the following decisions of the Hon‟ble Supreme Court:-
i. Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar & Anr. [AIR 1963 (SC) 786];62
OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 ii. Census Commissioner & Ors. vs. R. Kishnamurthy [2015 (2) SCC 796];
iii. Public Service Commission, Uttaranchala vs. Mamta Bisht & Ors. etc.[2010 (12) SCC 204]; and iv. Shiv Kumar Tiwari (Dead) By L.Rs vs. Jagat Narain Rai & Ors. [2001 (10) SCC 11].
34. In Udit Narain Singh Malpaharia (supra), Mr. Rao, learned counsel has drawn our attention to para 9 of the judgment, which reads as under:-
"9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi- judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before- it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by I the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order but whose presence may facilitate the settling of all the questions that may- be involved 63 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.
35. In the case of Census Commissioner (supra), relied upon by Mr. Rao, learned counsel for private respondents, he has drawn our attention to para no.21, which is extracted hereunder:-
"21. As we evince from the sequence of events, the High Court in the earlier judgment had issued the direction relating to carrying of census in a particular manner by adding certain facets though the lis was absolutely different. The appellant, the real aggrieved party, was not arrayed as a party-respondent. The issue was squarely raised in the subsequent writ petition where the Census Commissioner was a party and the earlier order was repeated. There can be no shadow of doubt that earlier order is not binding on the appellant as he was not a party to the said lis. This view of ours gets fructified by the decision in H.C. Kulwant Singh and others V. H.C. Daya Ram and others[4] wherein this Court, after referring to the judgments in Khetrabasi Biswal V. Ajaya Kumar Baral & Ors.[5], Udit Narain Singh Malpaharia V. Board of Revenue[6], Prabodh Verma & Ors. Vs. State of U.P. & Ors.[7] and Tridip Kumar Dingal & Ors. V. State of W.B. & Ors.[8] has ruled thus:
"..... if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice."64
OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019
36. In Public Service Commission, Uttaranchala‟s case (supra), relied upon by the private respondents, the following observations have been made:-
"8. It is settled legal proposition that vacancies over and above the number of vacancies advertised cannot be filled up. Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so occurred cannot be filled up from the panel, which stood already exhausted. (Vide Rakhi Ray & Ors. Vs. The High Court of Delhi & Ors. AIR 2010 SC932). However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process, a decision had been taken to fill up 42 instead of 35 vacancies and reservation policy had been implemented accordingly.
9. In case the respondent No.1 wanted her selection against the reserved category vacancy, the last selected candidate in that category was a necessary party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a Constitution Bench of this Court in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that non- joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh Vs. State of Gujarat; AIR 1965 SC 1153; Babubhai Muljibhai Patel Vs. Nandlal, Khodidas Barat & Ors., AIR 65 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 1974 SC 2105; and Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88)."
37. In yet another decision in Shiv Kumar Tiwari (Dead) By L.Rs (supra), relied upon by the learned counsel representing private respondents, Hon‟ble Supreme Court has observed as under:-
"There is no controversy that the Institution had only one sanctioned post of Lecturer in Mathematics as on date and if the work load and sanctioned strength really required more than one they should have moved the Competent Authorities in accordance with law and obtained proper sanction for more than one. The learned Single Judge in the High Court has adverted to certain facts, stated to be on the basis of records, that the Competent Authority has not only been according approval of the appellant on temporary basis, academic yearwise, but the Management had been calling for applications and the appellant had been applying every time and it is only in 1973 when his period was about to expire, the appellant moved the Civil Court for relief taking altogether a different stand. Though the appellant should have known there could not have been any appointment for any period or duration without the approval of the Competent Authority and the relief sought for involved a decision on the exercise of powers already made and to be made thereafter by such authorities, the appellant did not care to implead the Department in the suit or even the first respondent in the pending suit when he came to be appointed, as admitted in para 2 of the written submissions of the Management, In the meanwhile, the respondent No.1, Shri Jagat Narain Rai, had been appointed by a regular selection process by an order dated 06.09.1973 after obtaining the approval of the Department he was appointed regularly and also as conceded in Para III of written submissions on behalf of the appellant 66 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 "...at the same time it cannot also be disputed that the respondent Shri Jagat Narain Rai has also worked as a Mathematics Lecturer with effect from 6th September, 1973. It is also undisputed that there is only one sanctioned post of Mathematics Lecturer against which two persons have been working with full work- load."
The least said about the manner of consideration and disposal given in the judgment of the Civil Court in Suit No.108 of 1973 is better. Such a Judgment could not be pressed into service to the detriment of the rights of the first respondent and it requires no serious exercise to place on record the position of law that the judgment/decree/ order of Courts or any other authority binds only the parties to it, or their privies when it concern the rights of parties and such proceedings purport to be adjudicate also rights of contesting parties by means of an adversarial process. Even assuming that the communication of the Deputy Director proceed to accept its binding nature it could not have been legitimately made to the detriment and prejudice of the first respondent and it is futile for the appellant or the Management to base any right on that alone. The plea that the Department or the first respondent should have filed an appeal, though not parties to the suit, at any rate, does not lie in the mouth of either the appellant or the Management to be taken. Though it would have been open to them to file an appeal with the leave of the Court, there is no duty or obligation cast on them to do on pain of distress when in law they could also legitimately ignore, as not affecting them. The judgment of the Civil Court in Suit No.108 of 1973 has no value or merit for asserting any claim or right against the first respondent or the officers of the Education Department."
38. We have carefully gone through the above decisions of the Hon‟ble Supreme Court, relied upon by the private respondents, and are of the view that the same would not be applicable in their cases as they are the selectees of LDCE-2002. Insofar as the 67 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 selectees of LDCE-99 are concerned, the private respondents cannot be said to be the affected parties at the relevent point of time. Hence, this ground cannot be taken by them at this stage being barred by the principle of estoppel. It is also an admitted fact that since the litigation involving the issue in these batch matters has been the subject matter of litigation for over a decade, it cannot be presumed that the private respondents were not aware of the promotions of their fellow colleagues. It is also seen that the private respondents have never challenged those cases in the higher forum nor they themselve have filed any miscellaneous application for their impleadment in those cases.
39. Having gone through the various decisions of this Tribunal rendered in various cases filed either by the applicants and/or by private respondents, which are undisputedly inter-connected, and the respondents having complied with the same, we are of the considered view that this issue cannot be raked up any further. Moreover, the private respondents were well aware of this long drawn litigation. We also find that though the private 68 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 respondents were not impleaded in certain OAs as party respondents, they in fact approached this Tribunal by filing separate OAs for redressal of their grievances. We are, therefore, of the considered opinion that having approached to this Tribunal for redressal of their grievances, the private respondents cannot have any grudge at this stage, and, hence, cannot be permitted to rake up this issue again and again. Hence, this argument of the learned counsel stands rejected.
40. Insofar as the issue of creation of supernumerary is concerned, 74 supernumerary posts were created in concurrence with the Department of Expenditure, and on the basis of the directions of this Tribunal issued in various OAs on different occasions, in order to avoid reversions consequent upon re-calculation of vacancies, on the premise that LDCEs were not held for a quote long time. The action of the official respondents in this regard cannot be faulted.
41. Having gone through the pleadings on record, we find no fault in creation of supernumerary posts 69 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 by the official respondents as has been held by the Hon‟ble Supreme Court in the case of Sham Sunder Sharma (supra) and that of Hon‟ble High Court of Delhi in Union of India (supra).
42. In the facts and circumstances of the cases in hand, we are of the considered opinion that on the basis of the decision of this Tribunal in Gianender Kumar & Anr. Vs. Union of India & Ors., which was decided way back on 28.07.2009 and attained finality, selectees of LDCE-99 will rank senior to those of LDCE-2002.
43. In view of the above discussion, both OA No.1079/2020 and OA No.2991/2019 stand dismissed being devoid of merit. No order as to cost. OA No.148/2021
44. The seniority list of AEs (C) as on 01.01.2020 issued by the respondents, vide order dated 24.07.2020; provisional seniority list of AEs (C) as on 01.01.2021 issued by the respondents, vide order dated 13.01.2021; and order dated 15.01.2021 promoting juniors to the applicants from the post of AEs to EEs superseding the applicants, who are 70 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 entitled to be considered having been declared qualified and promoted in LDCE-99, are quashed to the extent that the applicants are shown junior to the private respondent nos. 3 to 11. The official respondents are directed to extend the consequential benefits to the applicants. OA stands disposed of with the above directions.
OA No.2372/2019
45. The final seniority list of AEs as on 01.01.2021 issued by the respondents, vide order dated 06.04.2021 is quashed insofar as selectees of LDCE- 99 are shown junior to the selectees of LDCE-2002. Order dated 23.09.2021 seeking administrative clearance certificates is quashed and set aside. The official respondents are directed to place the selectees of LDCE-99 over the selectees of LDCE- 2002, and consequently consider the applicant, being selectee of LDCE-99, for promotion to the post of EE along with similarly circumstanced candidates. OA stands disposed of with the above directions.
47. The official respondents are further directed to comply with the above directions within a period of 71 OA No.148 of 2021 with OA Nos.2372/2021, 1079/2020 and 2991/2019 three months from the date of receipt of a copy of this order.
48. There shall be no order as to costs.
49. Consequently, all pending MAs arising out of these Original Applications also stand disposed of. However, in view of the facts and circumstances of these cases, there shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das) Member (A) Chairman /nAhuja/