Central Administrative Tribunal - Delhi
Sh. Rajendra Singh vs Union Of India on 18 July, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3274/2011 OA-3372/2012
CP-714/2012
MA-142/2013 OA-780/2013
MA-143/2013 MA-644/2013
With MA-645/2013
MA-924/2013
OA-3041/2012 OA-856/2013
MA-2552/2012 MA-667/2013
MA-2625/2012
MA-317/2013
MA-373/2013
Reserved on :23.05.2013.
Pronounced on :18.07.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
OA-3274/2011
1. Sh. Rajendra Singh,
S/o Sh. Shiv Raj Singh,
R/o CPWD Colony at Cleve Colony,
Dhan Kheti, Shillong.
2. Sh. Mathura Prasad,
S/o Sh. Hari Ram,
R/o 261, Keshav Kunj Apartments,
Sector-17, Pocket-D,
Dwarka, New Delhi.
3. Sh. Parmanand,
S/o late Sh. Ghisya Ram,
R/o 44-A, Pocket-B,
Mayur Vihar Phase-II,
Delhi-91.
4. Sh. Lorengob Dung Dung,
S/o Sh. Paulus Dung Dung,
R/o 17/36-a, K.P. Roy Lane,
Dhakuria,
Kolkatta-7000031. . Applicants
Versus
1. Union of India
through Secretary,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
2. The Secretary,
Department of Personnel & Training,
North Block, New Delhi.
3. The Director General (Works),
CPWD A Wing,
Nirman Bhawan, New Delhi. . Respondents
OA-3041/2012
1. Central PWD Engineers Association
through its Secretary,
B Wing, Ground Floor,
(Outside End) I.P. Bhawan,
New Delhi-110002.
2. Sh. S.C. Raghav,
Sh. Deep Chandra,
R/o 9/4324, Ajit Nagar,
Gandhi Nagar, Delhi-31.
3. Sh. Bhuwan Chjandra Pant,
S/o late Sh. D.N. Pant,
R/o Flat No. 204, GH-8,
Parwana Apartments,
Sector-21D, Faridabad-121001.
4. Sh. Raj Kumar,
S/o Sh. Chhotey Lal,
R/o 614, Chandralok,
Mandoli Road, Shahdara,
Delhi-93. Applicants
Versus
1. Union of India
The Secretary,
Government of India,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
2. Director General,
CPWD, Nirman Bhawan,
New Delhi-11.
3. Sh. Manoj Kumar,
S/o Sh. R.C. Aggarwal,
R/o 72, Jagdamba Apartment,
Sector-13, Rohini,
Delhi-85.
4. Sh. Sanjeev Rastogi,
S/o Sh. M.L. Rastogi,
R/o 47/20, Rajpur Road,
Delhi-54. . Respondents
OA-3372/2012
1. Sh. D.S. Sangwan,
S/o late Sh. S.C. Sangwan,
606, Skyland CGHS GH-17,
Sector-56, Gurgaon(Haryana).
2. Sh. Lekh Raj,
S/o Sh. Sewa Ram,
C-7/123 Sec.8 Rohini,
Delhi. .. Applicants
Versus
1. Union of India
The Secretary,
Government of India,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
2. The Secretary Department of
Personnel and Training,
North Block, New Delhi.
3. D.G. (Works) CPWD,
Nirman Bhawan,
New Delhi-1.
4. The Chairman,
Union Public Service Commission,
Dholpur House,
Shahjahan Road,
New Delhi.
5. Sh. Manoj Kumar,
S/o Sh. R.C. Aggarwal,
R/o 72, Jagdamba Apartment,
Sector-13, Rohini,
Delhi-85.
6. Sh. Sanjeev Rastogi,
S/o Sh. M.L. Rastogi,
R/o 47/20, Rajpur Road,
Delhi-54.
7. Sh. Viveka Nand Vivek,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
8. Sh. Jagdeep Singh,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
9. Sh. Rajendra singh,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
10. Sh. Prakash Rawat(SC),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
11. Sh. A.K. Das (SC),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
12. Sh. Mathura Prasad,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
13. Sh. L. Dung Dung,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
14. Sh. Permanand,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
15. Sh. P.K. Naidu,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
16. Sh. Chitranjan Nanda,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
17. Sh. Pradeep Gupta,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
18. Sh. Vivek Bansal,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
19. Sh. D.R. Chowdhary,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
20. Sh. M.P. Singh,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
21. Sh. K.K. Agrawal,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
22. Sh. B.P. Singh,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
23. Sh. Ashwini Kumar,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
24. Sh. M.K. Jha,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
25. Sh. S.K. Rampal,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
26. Sh. P.C. Mathur,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
27. Sh. Gaje Singh(SC),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
28. Sh. V.K. Asol (SC),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
29. Sh. J.J.R. Meena (ST)
R/o CPWD, Nirman Bhawan,
New Delhi-1.
30. Sh. R.C. Mishra,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
31. Sh. P. Kanka Raju,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
32. Sh. Jitender Kumar,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
33. Sh. Gunsagar Jain,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
34. Mumtaz Ahmed,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
35. Sh. Prem Mohan,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
36. Sh. L.K. Bhargava,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
37. Sh. P.K. Dixit,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
38. Sh. G.P. Bansal,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
39. Sh. C.M. Tiwari,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
40. Sh. S. Raghu Babu,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
41. Sh. Sanjeev Sharma,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
42. Sh. S.K. Aggarwal,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
43. Sh. Anurag,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
44. Sh. Sunil Kumar Sharma,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
45. Sh. Manohar Lal (SC)
R/o CPWD, Nirman Bhawan,
New Delhi-1.
46. Sh. Yudistar Naik (ST)
R/o CPWD, Nirman Bhawan,
New Delhi-1.
47. Sh. Umesh Bansal,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
48. Sh. Sanjay Gupta,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
49. Sh. D.K. Gupta,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
50. Sh. S.K. Bose,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
51. Sh. Tarkehwar Tiwari,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
52. Sh. A.K. Aggrawal
R/o CPWD, Nirman Bhawan,
New Delhi-1.
53. Sh. S.K. Srivastava,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
54. Sh. Gopal Varshney,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
55. Sh. Rajesh Kumar,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
56. Sh. A.K. Khatua (SC),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
57. Sh. Piyush Chamka,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
58. Sh. Pawan Kumar Gupta,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
59. Sh. Ravi Kant,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
60. Sh. Anil Kumar Pandey,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
61. Sh. Nirmal Goel,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
62. Sh. Nagendra Prasad,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
63. Sh. C.B. Upadhya,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
64. Sh. A. Srinivasan Rao,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
65. Sh. Ajay Kumar,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
66. Sh. M.V. Rao,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
67. Sh. Shailendra Singh,
R/o CPWD, Nirman Bhawan,
New Delhi-1.
68. Sh. Pawan Kumar (SC),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
69. Sh. Mukesh Kumar (SC),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
70. Sh. Rajeev Kumar (SC),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
71. Sh. Vijay Kumar (SC),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
72. Sh. Mukesh Meena (ST),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
73. Sh. S.B. Chinchghare (ST),
R/o CPWD, Nirman Bhawan,
New Delhi-1.
74. Sh. Himanshu Panday,
R/o CPWD, Nirman Bhawan,
New Delhi-1. . Respondents
OA-780/2013
1. Sh. S.K. Sharma,
S/o Sh. S.R. Sharma,
R/o Z-55, Sarojini Nagar,
New Delhi-23.
2. Sh. N.K. Saini,
S/o Sh. Amar Singh,
H.No. 365, Sector-21B,
Faridabad, Haryana. . Applicants
Versus
1. Union of India
through Secretary,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
2. The Secretary,
Department of Personnel & Training,
North Block, New Delhi.
3. The Director General (Works),
CPWD A Wing,
Nirman Bhawan, New Delhi.
4. Sh. Rajendra Singh,
S/o Sh. Shiv Raj singh,
R/o CPWD Colony at Cleve
Colony, Dhan Kheti, Shillong.
5. Sh. Mathura Prasad,
S/o Sh. Hari Ram,
R/o 261, Keshav Kunj Apartments,
Sector-17, Pocket-D,
Dwarka, New Delhi.
6. Sh. Parmanad,
S/o late Sh. Ghisya Ram,
R/o 44-A, Pocket-B,
Mayur Vihar Phase-II,
Delhi-91.
7. Lorengob Dung Dung,
S/o Sh. Paulus Dung Dung,
R/o Flat No.II, Pocket-K,
Sarita Vihar, New Delhi.
8. Apurba Kumar Das,
S/o late Sh. Kartik Chandra Das,
R/o 17/36-A, K.P. Roy Lane,
Dhakuria, Kolkata-700031. .. Respondents
OA-856/2013
1. Sh. Manmohan,
S/o Sh. V.D. Mamgain,
R/o C-8/109, Sector-8,
Rohini, Delhi-85.
2. Sh. K.D. Sharma,
S/o late Sh. Brahm Dutt Sharma,
R/o U-37, Hudco Place,
Type-IV Spl., Andrews Ganj,
New Delhi-49.
3. Sh. S.S. Khanna,
S/o sh. Har Lal Singh Khanna,
R/o C-II/2356, Vasant Kunj,
New Delhi-70. . Applicants
Versus
1. Union of India
Ministry of Urban Development,
Nirman Bhawan,
New Delhi-11.
(through Its Secretary)
2. Central Public Works Department,
Nirman Bhawan, New Delhi-11.
(through its Director General)
3. Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi-11.
(through its Secretary)
4. Sh. Prakash Rawat,
Working as Executive Engineer (civil),
5. Sh. A.K. Das,
Working as Superintending Engineer (Civil),
6. Sh. Mathura Prasad,
Working as Superintending Engineer (Civil), . Respondents
(Respondents No. 4 to 6 to be served through Respondent No.2)
Present : Smt. Jyoti Singh, Sr. Advocate with Sh. S.R. Sharma,
Advocate for applicants in OA-3041/2012, OA-3372/2012
& OA-780/2013.
Ms. Rekha Palli, counsel for applicants in OA-3274/2011.
Sh. R.N. Singh for Sh. R.V. Sinha, Advocate for applicants
in OA-856/2013.
Sh. D.S. Mahendru, Ms. Rekha Palli, Sh. Rajinder Nischal
Sh. Arun Bhardwaj, Sh. Sameer Aggarwal and Sh. M.K.
Bhardwaj, Advocate for respondents.
O R D E R
Mr. Shekhar Agarwal, Member (A) All the cases listed above are connected and are being disposed of by this common order. For the sake of convenience facts of OA-780/2013 (S.K. Sharma Vs. CPWD) are being discussed. This O.A. has been filed seeking the following relief:-
(a) Direct the respondents not to give effect to the order dated 30.1.2012 passed by this Honble tribunal in O.A. No. 3274/2011 as same has been passed in the absence of applicants and other affected parties, the necessary parties and which would adversely affects the rights of the applicants and other similarly situated promotee EEs.
(b) Direct the respondent No. 1 to 3 to make promotions to the post of Superintending Engineer as per the seniority list dated 10.11.2004 in accordance with the law laid down by the Honble Supreme Court in Roshan Lal Tandon & Ors. Vs. Union of India & Ors. AIR 1967 SC 1889 and also in (1974) 4 SCC 335 by applying same yard sticks i.e. deemed date of promotions/date of absorption in counting regular service, to both EEs promoted from AEEs cadre and EEs promoted from AEs cadre and the respondents No.1 to 3 should further be directed to count the services of EEs promoted from AEs cadre from their deemed date of promotions/date of absorption in cadre as has been done by the respondents no. 1 to 3 in case of the promotions of other junior EEs from Serial No. 330 to 338 while promoting them vide various order dated 04.01.2007, 30.04.2007, 27.09.2007 and 16.01.2008.
(c) Direct the respondents No. 1 to 3 to consider the applicants and other promotee EEs who are senior to respondents No. 4 to 8 as per seniority list dated 10.11.2004 for promotions to the post of SE before respondent No. 4 to 8.
(d) Direct the respondents No.1 to 3 to not make any promotion on the basis of seniority list other than seniority list dated 10.11.2004.
(e) Quash the proceedings of DPC held on 22.2.2013 by the respondents.
(f) Pass such further orders as this Honble Court may deem fit and necessary.
2. Undisputed facts of the case are that the applicants are working as Executive Engineer (Civil) EE(C) in CPWD and are seeking promotion as SE. Recruitment to the grade of EE(C) was being made in terms of Recruitment Rules of 1954, according to which appointment to the grade of EE(C) was to be made by promotion of AEE (C) and AE (C) possessing degree in Civil Engineering in the ratio of 2:1. AE (C) was to be promoted as EE(C) in consultation with UPSC. By an amendment dated 31.10.1972 it was prescribed that even diploma holder AE(C) could be promoted as EE(C) in relaxation of educational qualifications provided they were found to be possessing outstanding ability and record. This amendment was challenged in this Tribunal through OA-910/1989. This O.A. was disposed of by the Tribunal vide its order dated 30.04.1990 in which it was held that the amendment was arbitrary and discriminatory. The order of the Tribunal was challenged through SLP Nos. 5363 and 5364 before the Honble Supreme Court. These SLPs were disposed of vide order dated 14.01.1997. The Apex Court upheld the amendment dated 31.10.1972 and also issued direction to review ad hoc promotions and make regular promotions to the grade of EE(C).
2(a). In the meantime new Recruitment Rules came into force from 29.10.1996 replacing the old Recruitment Rules of 1954. The new Rules prescribed that AEE (C) with four years of regular service, AE (C) possessing degree in civil engineering with eight years of regular service and AE (C) possessing diploma in civil engineering with ten years of regular service were eligible for promotions to the grade of EE(C) in the ratio of 1:1:1.
2(b). In practice, however, fewer number of AEEs(C) were available for promotion as EE(C) against quota earmarked for them. Consequently, there was backlog of unfilled vacancies in their quota. As a result, AEs (C) were promoted on ad hoc basis to hold the vacant posts of EE(C). However, since Apex Court had directed in the SLP Nos. 5363 and 5364 by their order dated 14.01.1997 that regular promotions only should be made, the respondents decided to review the policy of ad hoc appointments in pursuance to the aforesaid directions of the Apex Court. A policy decision was taken to divert 430 posts of EE(C) lying vacant in the quota of AEEs (C) to the quota of AEs (C) in consultation with Department of Personnel & Training. The available vacancies pertained to the years 1994-1995, 1995-1996 and 1996-1997 upto 28.10.1996 i.e. the date from which new Recruitment Rules of 1996 came into force. This diversion was challenged in this Tribunal through OA-2044/1997 and OA-153/1997. These OAs were disposed of by order dated 12.08.1998 by which the order of diversion was quashed. The respondents then examined the order of CAT again in consultation with Ministry of Law and decided to issue afresh order diverting vacant posts of AEE (C) quota to AE (C) quota under Rule 23 of 1954 Rules after securing approval of UPSC. An order diverting all these 430 posts was issued on 06.07.1999.
2(c). DPC meeting was held in UPSC for making promotions against these diverted posts. On the basis of recommendations of DPC 328 AEs (C) were appointed as EEs (C) on regular basis vide order dated 03.11.1999. The DPC could not recommend officers for filling up all the vacancies (430 diverted vacancies and 50 vacancies already existing in the quota of AE (C)) due to non-availability of adequate number of officers fulfilling the eligibility conditions. In the order dated 03.11.1999 it was also mentioned that separate order regarding date of regular promotion will follow. Thereafter, through Office Order dated 28.09.2001 these promoted officers were assigned deemed date of promotion as 31.03.1995, 31.03.1996 and 28.10.1996.
2(d). On 06.08.2003 the respondents circulated a provisional seniority list in which AEs (C) promoted against diverted vacancies were shown to have been appointed on their deemed date of promotion and were assigned seniority from a retrospective date. Thereafter, on the basis of objections received the respondent in the seniority list finalized on 10.11.2004 changed the date of regular promotion to 03.11.199 for the promotee officers but did not change the order of seniority.
2(e). Aggrieved by the same certain officers who had earlier been assigned retrospective deemed date of promotion filed OA Nos. 779, 1626 and 1349 of 2006 before this Tribunal claiming seniority and other benefits such as NFJAG with reference to deemed date of promotion. These OAs were, however, dismissed by this Tribunal on 16.07.2007 holding that the applicants were not entitled to deemed date of promotion. The aforesaid order of the Tribunal has been challenged before the Honble High Court of Delhi through WP(C) No. 7346/2007. The matter is pending in the Honble High Court at the moment.
2(f). OA-693/2006 was filed before this Tribunal by one Sh. S.S. Nirmal claiming benefit of deemed date of promotion. This O.A. was dismissed on 09.07.2008. Sh. S.S. Nirmal filed WP(C) No. 3983/2011 assailing this order. However, the same was dismissed by the Honble High Court of Delhi. Similarly, OA-2130/2007 filed by Sh. R.R. Verma and others claiming benefit of deemed date of promotion to the next grade of SE (C) was also dismissed by this Tribunal on 09.01.2009. Writ Petition (C) No. 535/2009 filed against this order of the Tribunal is pending before the Honble High Court of Delhi.
2(g). In OA-1310/2008 filed by Sh. B.P. Singh & Ors. directions were issued by the Tribunal on 09.01.2009 to recast and draw flawless seniority list. This order was challenged before the Honble High Court of Delhi through Writ Petition (C) No. 536/2009 titled as P.P. Singh Vs. UOI and Writ Petition (C) No.12914/2009 titled R.K. Kashyap Vs. UOI. While the former petition is still pending, the latter petition was disposed by Honble High Court of Delhi vide order dated 27.07.2010 in which the Honble High Court held that it would be open to the department to draw up a further seniority list of EE(C) post 01.01.1997. Honble High Court further ruled that to avoid any controversy the department should follow conventional method of circulating a provisional seniority list and inviting & disposing of objections against the same.
2(h). Similarly, Sh. Rajendra Singh & Ors. filed OA-3274/2011 before this Tribunal which was disposed of on 30.01.2012 vide the following order:-
While issuing notice in this case on 12.09.2011, we recorded the following order:-
Counsel for the applicant, inter alia, contends that the batch-mates of the applicants have been given regular promotion whereas the applicants have been ignored and the explanation furnished by the respondents in the earlier OA filed by the applicants, which was disposed of on 22.03.2011 is not correct.
Issue notice to the respondents returnable on 24.10.2011. At this stage Mr. D.S. Mahendru accepts notice on behalf of the respondents and seeks time to file reply. Let reply be filed two days before the next date fixed with an advance copy to the counsel opposite.
Since the Tribunals dated 22.03.2011, which is stated to be annexed with the OA, is missing in some pages, counsel may place the same on record within two days.
2. Pursuant to notice issued by this Tribunal, respondents have entered appearance and filed their reply wherein it has, inter alia, been stated that Class-II Departmental Officers became eligible after the amendment in the recruitment rules on 01.08.2007 and their claim for promotion can be on the vacancies arising after 01.08.2007. Therefore, the applicants herein can be considered for promotion against the vacancies for the period from 01.04.2007 to 31.07.2007. It will be just and proper if the official respondents are allowed to consider these applicants for promotion to the post of S.E. (Civil) against the vacancies arising during the period from 01.04.2007 to 31.07.2007, and if found fit, to promote them.
3. In view of the candid submission of the respondents insofar as applicants are concerned, as mentioned above, we dispose of this Original Application directing the respondents to carry out the exercise, as mentioned in the reply, and if the applicants are found fit for promotion against the vacancies arising during the period from 01.04.2007 to 31.07.2007, to promote them, as expeditiously as possible and definitely within a period of three weeks from today. 2(i). Following the aforesaid orders in various cases by the Tribunal and objections of Department of Personnel & Training against giving benefit of seniority to AEs (C) on the basis of deemed date of promotion, a provisional seniority list of EEs (C) was circulated by the respondents vide their O.M. dated 14.12.2011. The objections received in response to this Circular were considered by the respondents and a finalized seniority list was circulated vide their O.M. dated 28.09.2012. According to the respondents this seniority list had been finalized strictly in accordance with the guidelines of Government of India, Department of Personnel & Training in the matter of seniority. The officers in the grade of EEs (C) have been appointed with reference to the dates of their regular appointment to the post. AEEs (C) and AEs (C) had been appointed in the ratio prescribed in the Recruitment Rules.
3. Aggrieved by the seniority list dated 28.09.2012, the applicants have taken the following grounds for seeking the relief:-
(1) In OA-3274/2011 the applicants of present O.A. who were senior to the applicants of that OA were deliberately not made parties and thus the impugned order dated 30.01.2012 was passed in absence of necessary parties.
(2) In the seniority list dated 10.11.2004 the applicants of this O.A. were at Serial Nos. 327-320 respectively and respondents No. 4 to 8 were at Serial No. 339. 344, 343, 342 and 341 respectively i.e. junior to the applicants of this O.A. (3) Respondents No. 1 to 3 have applied different parameters for direct recruits and promotees in complete violation of the law laid down by the Honble Supreme Court in the case of Roshan Lal Tandon & Ors. Vs UOI & Ors. They have thus discriminated against the promotees and have violated Articles 14 & 16 of the Constitution of India. This order has been obtained by misrepresentation of facts.
(4) Honble High Court vide its order dated 27.07.2010 had ruled that the seniority list dated 10.11.2004 is the final list of EEs (C) who have been promoted under 1954 Rules against vacancies occurring prior to 29.10.1996.
(5) Respondents No.1 to 3 with mala fide intentions have acted in violation of Honble High Court of Delhi order dated 27.07.2010 and have prepared a totally illegal and unconstitutional seniority list in collision with direct recruits giving them edge over promotees. 4(a). The official respondents No. 1 to 3 have filed counter in which they have denied the averments made by the applicants. After giving background of the matter in brief the respondents have stated that after publication of the seniority list of EEs (C) in 2003, numerous representations were received objecting to the assignment of deemed date of promotion to the promotee officers who were promoted against diverted vacancies. The matter was examined in consultation with Department of Personnel & Training who opined that their guidelines provide that all promotions are prospective and even then when panels are prepared year-wise due to belated convening of DPC, promotions are allowed only with prospective effect and in any case not before the date of meeting of the DPC. Further, OAs No. 779, 1626 and 1349 of 2006 were disposed of by this Tribunal by a common order dated 16.07.2007. The Tribunal directed as follows:-
18. If we examine the issue raised in the present cases, with reference to aforementioned judgments, as we have already noticed, that it is not the plea of the applicants that they were promoted as Executive Engineer in the year 1994-95 against the quota meant for Assistant Engineer, a stream to which they belong, would not be entitled to seniority before the date they were regularized. We may further note the hard fact that they came to be regularized in the year 1999 only on diversion of vacancies from the quota of Assistant Executive Engineer in relaxation of rules and not within their own quota. In other words, it is inescapable conclusion that the applicants were promoted in the year 1994-95 de hors the RRs and against non-existent vacancies in their quota. Merely because the respondents issued order dated 28.09.2001 and prescribed deemed date of regular promotion which stands virtually recalled and modified vide impugned seniority list dated 10.11.2004, would not confer any indefeasible right of seniority. It is well settled that a mistake committed in passing an administrative matter can be rectified. 4(b). Further, in OA-1310/2008 in which a prayer was made for revising seniority list in the light of the order of the Tribunal dated 16.07.2007, the Tribunal through its order dated 09.01.2009 directed that the seniority list of EEs (C) should be properly subjected to recasting after noticing claims as highlighted in the OA as well as impleading persons. The Tribunal further directed that if the claims were found to be tenable the names of the claimants be interpolated at appropriate places to indicate their rightful position in the seniority list. The Tribunal observed that when promotion to higher cadre is to be made on the basis of seniority and qualifications prescribed by the Rules, it is essential that a flawless seniority list alone is operated.
4(c). Writ Petition No. 12914/2009 filed in the Honble High Court of Delhi assailing the order of the Tribunal dated 09.01.2009 was disposed of by the Honble High Court of Delhi on 27.07.2010 with the following directions:-
We dispose of the writ petition clarifying that it would be open to the Department to draw up a further seniority list of executive engineers post 01.01.1997 and till date and to avoid any controversy of persons affected not being heard, to follow the conventional method of circulating a provisional seniority list for the incumbents who entered service as executive engineers post 01.01.1997 and thereafter finalize the same after disposing of the objections, if any filed to the provisional seniority list. 4(d). The respondents have further stated that a Contempt Petition bearing No. 713/2012 in the above mentioned Writ Petition No. 12914 is also pending before the Honble High Court of Delhi.
4(e). Respondents have gone on to state that OA-693/2006 filed before the Principal Bench of this Tribunal by one Sh. S.S. Nirmal in which he prayed for grant of promotion from the deemed date of promotion i.e. 31.03.1995 was dismissed by the Tribunal on 09.07.2008. Writ Petition (C) No. 3983/2011 filed by him assailing the order of the Tribunal has also been dismissed by the Honble High Court of Delhi.
4(f). Respondents have further stated that SEs working with them filed OAs bearing Nos. 2710/2003, 1749/2008, 1847/2008, 2542/2008 and 220/2009 before this Tribunal praying for promotion from retrospective effect and payment of back wages. These OAs were allowed vide orders dated 13.05.2004, 14.07.2009, 16.07.2009 and 12.05.2009. These orders were challenged before the Honble High Court of Delhi through Writ Petitions (C) No. 1188-90/2005, 1723/2010, 1724/2010, 1725/2010 and 1726/2010. The Honble High Court while disposing of these petitions observed as follows:-
It is apparent that service jurisprudence does not recognize the jurisprudential concept of deemed retrospective promotion and unless there exists a rule or their exists a residual power and in exercise of the implementation of the rule or in exercise of power conferred by the residual rule a decision is taken or can be taken to grant retrospective promotion, no person can claim a right to be promoted from the date when the vacancy accrued and he must take the promotion with its benefits from the date of actual promotion. While disposing of these Writ Petitions the Honble High Court of Delhi placed reliance on the following decisions of Apex Court:-
Union of India & Ors. Vs. K.K. Vadera & Ors., 1989 Supp.(2) SCC 62.
Baij Nath Sharma Vs. Honble Rajasthan High Court at Jodhpur and another, (1998) 7 SCC 44.
State of Uttranchal & Anr. Vs. Dinesh Kumar Sharma, (2007) 1 SCC 683.
Apex Court in the case of K.K. Vadera & Ors. (supra) in paragraph-5 of their order observed as under:-
.We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date on which post fall vacant in the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. Apex Court in the case of Baij Nath Sharma (supra) dismissed the appeal on the ground that no statutory rule was shown which could have helped the appellant. No officer in RJ was promoted who was junior to the appellant prior to the date when appellant was promoted and relying on the ratio of law in K.K. Vaderas case.
Apex Court in the case of State of Uttranchal & Anr. (supra) has held as follows:-
Respondent was working as a Subordinate Agriculture Services Group-I. Subsequently he became eligible for promotion. A promotional post became vacant and thereafter, substantive appointment of Respondent to said post was made. Respondent claimed seniority and consequential benefits from the date when promotional post became vacant. State Government rejected claim made by Respondent. On writ, Division Bench of High Court directed state to reconsider case of Respondent. Hence the appeal was filed which was allowed and it was held that under Rule 8 of Uttar Pradesh Government Servants Seniority Rules, 1991 a person appointed on promotion shall not get seniority of any earlier year but shall get seniority of year in which his/her appointment is made. Hence respondent was not entitled to seniority from date when promotional post became vacant as no retrospective effect could be given to order of appointment under the Rules. In the aforesaid case the Honble High Court has also allowed recovery of over payment made to the respondents in the Writ Petition on account of promotions granted from retrospective date. This order of the Honble High Court has not been challenged and has attained finality.
4(g). The respondents have stated that from the above judicial pronouncements, it appears that the settled law is that a person is entitled to seniority from prospective effect and not from retrospective effect unless there exists a rule or residual power and retrospective promotion is granted in terms of the said Rule or in exercise of the said residual power.
4(h). The respondents have stated that as a consequence of these judicial pronouncements they attempted to prepare a provisional seniority list of EEs (C) on the basis of guidelines of Government of India and in the light of directions of this Tribunal dated 16.07.2007 in OA-779/2006, OA-1626/2006 & OA-1349/2006 and order dated 09.01.2009 in OA-1310/2008 and circulated it to all concerned vide their O.M. dated 14.12.2011 inviting objections thereon, if any. After considering objections received the seniority list was finalized and circulated vide O.M. dated 28.09.2012. They also sent a proposal to UPSC to hold DPC for promotion to the grade of SE (C) on the basis of this seniority list.
4(i). The respondents have also stated that the applicants of this O.A. never approached them or the Tribunal for making regular promotions to the grade of SE (C) knowing fully well that the seniority list of 2004 is under dispute and needed revision on account of the directions of the Tribunal. Further, they accepted promotion to the SE (C) grade on ad hoc basis and never protested against it. Their claim for seniority on the basis of deemed date of promotion once granted erroneously is with mala fide intention. They are attempting to thwart the efforts of the respondents to make promotions to the grade of SE (C) on regular basis in accordance with the duly notified Recruitment Rules and duly finalized seniority list. The respondents, on the other hand, are duty bound to complete the process of promotion to the SE (C) grade in compliance of directions of the Tribunal dated 30.01.2012 in OA-3274/2011.
4(j). Further, the respondents have stated that the private respondents No. 4 to 8 in this O.A. belong to 1989 batch and were appointed as AEEs (C). They have filed OA-3274/2011 stating that their batchmates had been promoted to the grade of SE (C) on regular basis and that vacancies are available and as such they may also be promoted to SEs (C) grade on regular basis. The Tribunal through their order dated 30.01.2012 has directed the respondents to consider the case of the applicants and if they are found fit for promotion against the vacancies arising during the period from 01.04.2007 to 31.07.2007, promote them as expeditiously as possible and definitely within a period of three weeks. Thus, the respondents are duty bound to consider the cases of these private respondents for promotion to SE (C) grade expeditiously.
5. We have heard counsel for all the parties and perused the material on record.
6(a). Ms. Jyoti Singh, Sr. Counsel arguing for the applicants first gave the background of the case and the Recruitment Rules applicable for promotion from time to time. Thereafter, she stated the circumstances under which Government had taken a decision on 06.07.1999 to divert 430 vacancies of EEs (C) from AEE (C) quota to AE (C) quota. According to her AEEs challenged the O.M. dated 06.07.1999 by which this diversion was made through OA-1968/1999. However, that O.A. was dismissed on 13.02.2001 by this Tribunal. Meanwhile, the government had gone ahead in September 1999 to hold DPC for promotion of AEs (C) to EEs (C) against 480 vacancies i.e. 50 existing vacancies of AE (C) quota and 430 vacancies that had become available due to diversion. Pursuant to DPC recommendations an order was issued on 03.11.1999 promoting 314 AEs (C) as EEs (C). In the said order in the last line of first para it was stated that separate order will follow regarding dates of regular promotion. Thereafter, Government issued a specific order on 28.09.2001 declaring the deemed dates of promotion of the above mentioned EEs (C). A perusal of this order would reveal that Government clearly treated date of regular promotion as the deemed date relating to the vacancy for which DPC was held since it was a conscious decision of the Government to have retrospective diversion. Further, it is worth mentioning that neither the order of 03.11.1999 nor the order of 28.09.2001 was ever challenged by any one. In fact, the said order remains unchallenged till date. Relying on the Apex Courts judgment in the case of Amarjeet Singh & Ors. Vs. Devi Ratan & Ors., (2010) 1 SCC 417 she stated that where promotion orders are not challenged, the seniority which is only consequential also cannot be challenged.
6(b). She further argued that based on the deemed dates of promotion, the Government had issued a provisional seniority list of EEs (C) on 06.08.2003. Only 8 EEs (C) promoted from AEE (C) stream had filed objection to that list stating that their names had not been included in the same. The Government had rejected these objections on 24.09.2004 as is clear from the detailed note of Government available on page-62 of the paper-book. Thereafter, Government issued a final seniority list on 10.11.2004 containing names of EEs (C) promoted upto 28.10.1996 under 1954 Rules. It is worth noting that none of these 8 officers filed any O.A. challenging this seniority list.
6(c). For 4 years there was no challenge to the seniority list. However, suddenly in 2008 OA-1310/2008 was filed by Sh. B.P. Singh & Anr. praying for recasting of 2004 seniority list. Learned counsel stated that with this O.A. they annexed a seniority list which was forged inasmuch as they retained the actual date of promotion but did not indicate the deemed date of promotion which was also mentioned in the 2004 seniority list. According to her the Tribunal was misled by the applicants and therefore issued an order dated 09.01.2009 directing the recast of the list of 2004. She further argued that this order of the Tribunal was bad in law because (a) it was obtained by fraud and (b) because the Honble High Court in Writ Petition No. 12914/2009 varied the order by order dated 27.07.2010. Honble High Court in paras-6, 7 & 8 of this judgment held that the AEEs (C) in the O.A. could not be a part of 2004 list and if at all Government wanted to now include anybody in its, it can only be through a supplementary list since this list was limited to vacancies arising upto 28.10.1996 filled under 1954 Rules. According to her this order has attained finality as it has not been challenged. She stated that another important development that took place was that WP(C) No. 2562 challenging the diversion was dismissed by the Honble High Court on 05.12.2008. However, SLP filed by private respondents bearing No. 9415/2009 is still pending.
6(d). According to her there have been several orders of the Honble High Court which gave judicial stamp to retrospective diversion, promotions in 1999 with retrospective dates and consequential seniority list of 2004. In the teeth of these orders the Government should not have issued seniority list of 28.09.2012 completely upsetting the 8 years long settled seniority of the applicants. She highlighted that while issuing this list Government has stated that Recruitment Rules have no meaning and names have to be placed as per the quota completely forgetting that there was no rota quota any more as the quota of AEEs (C) had been diverted to AEs (C) to the extent of 430 vacancies.
6(e). She further stated that the respondents have tried to create confusion by saying that the judgment in OA-779 was against the applicants. This according to her was completely wrong as when this judgment was given WP(C) No. 2562 relating to diversion was pending and therefore when in 2008 the judgment of the Honble High Court of Delhi came this order had lost significance. Further, in this O.A. 12 private respondents themselves had opposed changes to the list of 2004, as is clear from Para-4.5 of their reply where they have stated that there was no illegality in the seniority list of 2004. She further argued that in the operative part of the judgment of this OA, this Tribunal also held that correct position was noted in the impugned seniority list. On the basis of these arguments she concluded that this judgment was also in favour of the applicants as it upholds the 2004 list.
6(f). Learned counsel for the applicants Ms. Singh argued that the contention of the respondents that the diversion was made only for those AEs (C) who were working as diversion AEs (C) on 28.10.1996 is misconceived. She stated that Government letter dated 04.06.1999 which has been extracted by the Honble High Court in their judgment clearly brings out 3 reasons for diversion. According to her while diverting 430 vacancies the Government was quite conscious that the number of ad hoc EEs (C) from AE (C) quota was not that large.
6(g). Concluding her arguments she stated that the impugned seniority list of 28.09.2012 is completely illegal as it is adversely affecting the seniority of applicants from 2004 list which has been upheld by three Honble Courts judgments. Thus, this impugned list deserves to be quashed.
7(a). Arguing for the applicants learned counsel Sh. R.N. Singh stated that the official respondents have illegally and arbitrarily disturbed the settled seniority of the applicants vis-`-vis private respondents. According to him this was in utter violation of law laid down by the Apex Court in the following cases:-
(i) K.R. Mudgal & Ors. Vs. R.P. Singh & Ors., 1986(4) SCC 531.
(ii) Kuldeep Chand Vs. UOI & Ors., 1995(5) SCC 680.
B.S. Bajwa & Ors. Vs. State of Punjab & Ors., 1998(2)SCC 523.
UOI & Ors. Vs. K.B. Rajoria, 2000(3) SCC 562.
He stated that the applicants are further aggrieved by the action of the official respondents in convening the DPC for promotion on the basis of impugned seniority list dated 28.09.2012.
7(b). He argued that it was a conscious decision of the Government to retrospectively divert EE (C) post falling under the quota of AEEs (C) respectively to the promotion quota of AEs (C). Orders of regular promotions of AEs to these posts and their dates of regular promotion have not been challenged by any one till date. The CPWD after taking into consideration the objections received to the provisional seniority list dated 14.08.2003 had issued a final list on 10.11.2004. This seniority list was confined only to those EEs (C) who had been promoted under 1954 Rules against vacancies occurring till 28.10.1996. According to him it was pertinent to note that this seniority list was issued after circulating provisional list and inviting objections. He stated that Honble High Court of Delhi in Writ Petition (C) No. 12914/2009 titled R.K. Kashyap Vs. UOI & Ors. vide order dated 27.07.2010 clarified that the respondents may prepare a supplementary seniority list in addition to the seniority list dated 10.11.2004. Learned counsel argued that this order of the Honble High Court cannot be construed to have given liberty or right to the official respondents to recast the seniority list completely disturbing the seniority position existing for around a decade.
7(c). He stated that official respondents have illegally issued a provisional seniority list dated 14.12.2011 unsettling the position that had remained settled for 7 years. Nevertheless the applicants therein had submitted their representation against this list. However, ignoring the grievance raised by the applicants the respondents disposed of the same in a mechanical manner to give undue benefits to persons from AEE (C) stream and issued the impugned seniority list dated 28.09.2012. In this seniority list the applicants have gone down by several positions vis-`-vis the private respondents.
7(d). The respondents are now intending to go ahead making promotions on the basis of this seniority list causing hardship and humiliation to the applicants.
8(a). Arguing on behalf of private applicants Ms. Rekha Palli first stated the background of the case and the position of Recruitment Rules in brief. She then stated that some AEs (C) had approached this Tribunal by way of filing OAs No. 776, 1626 & 693 of 2006. While disposing of their OAs vide order dated 16.07.2007 the Tribunal had held that these officers could not claim that their regular promotions should be counted from their date of absorption in quota (which was earlier treated as deemed date of promotion) and it was specifically held that their regular service in the grade of EE(C) had commenced only w.e.f. 03.11.2009 or a date subsequent to that depending upon from date of promotion. In the same order the Tribunal had also held that the eligible officers could be considered for promotion to NFJAG of EEs only after they completed 5 years of regular service. She stated that though this order of the Tribunal has been challenged through a Writ Petition which is pending yet stay order has been granted by the Honble High Court of Delhi.
8(b). Separately OA challenging the diversion of 430 vacancies from AEEs (C) was dismissed by this Tribunal on 13.02.2001. A Writ Petition assailing this order of the Tribunal has also been dismissed by the Honble High Court of Delhi on 05.12.2008.
8(c). In the meantime vide order dated 09.01.2009 this Tribunal dismissed OA-2130/2007 wherein some EEs (C) like the applicants who were promoted from AE(C) had prayed that they were entitled to be promoted to the grade of SE (C) from January 2006 by counting their service as EE (C) w.e.f. 31.03.1996 that is the date which was their deemed date of promotion. A Writ Petition has been filed against this judgment, which is pending before the Honble High Court of Delhi but again in which no stay order has been granted.
8(d). Ms. Palli, learned counsel stated that there was anomaly in the seniority list dated 10.11.2004 because it was meant of have names to only those AEs (C) who have been promoted from 28.10.1996, yet it contained the names of EEs (C) who had been promoted on 03.11.1999. Consequently, two EEs (C) who had been promoted from AEEs (C) category on 15.07.1997 on regular basis approached this Tribunal for inclusion of their names in the said list through OA-1310/2008. The Tribunal vide its order dated 09.01.2009 directed the department to consider their claim and recast the seniority by giving general notice. This order of the Tribunal was challenged in the Honble High Court of Delhi by way of WP(C) No. 12914/2009. On 27.07.2010 the Honble High Court ordered that a supplementary list be prepared in addition to the seniority list dated 10.11.2004. Honble High Court also directed the department to follow the conventional method of circulating the provisional list and inviting objections thereon. Thereafter, the department issued a provisional list of EEs (C) on 14.12.2011. Ms. Palli submitted that his provisional seniority list was not only in consonance with the instructions of Department of Personnel & Training but was also in accordance with the orders of the Tribunal dated 16.07.2007 and 09.01.2009. It was also in accordance with various judgments passed by Honble Supreme Court that seniority is to be counted only from the date of regular promotion and not from the date of creation of vacancy.
8(e). Ms. Palli further stated that the final seniority list dated 28.09.2012 has been issued after considering the objections received against the aforesaid provisional list. The department had also held DPC in February 2013 for promotion to the post of SEs (C) on the basis of this seniority list. OAs were filed against operating this seniority list but this Tribunal declined to grant any stay. Writ Petition No. 1269/2013 was also filed seeking quashing of an earlier order dated 30.01.2012 passed in OA-780/2013 wherein this Tribunal had directed that DPC be held in respect of EEs (C) of 1989 batch since their batchmates also stood promoted way back in 2006-2007. The Honble High Court vide its order dated 26.02.2013 directed that the result of the DPC be not notified for one week. The matter was also remanded to this Tribunal for adjudication. These OAs are now to be decided by the Tribunal.
9(a). Sh. M.K. Bhardwaj, learned counsel for private respondents stated that the following issues can be culled out for adjudication by this Tribunal:-
(i) Whether the ad hoc promotees in excess of quota were entitled to seniority on the basis of ad hoc promotion?
(ii) Whether in service jurisprudence seniority can be claimed with retrospective effect instead of the date of actual promotion granted on the basis of recommendations of DPC?
(iii) Whether the applicants can re-adjudicate the same issue of claiming seniority by relying upon the deemed date of promotion which has already been found to be not justified by this Tribunal while dismissing OAs No. 779, 1626 & 1349 of 2006?
(iv) Whether the applicants can claim seniority even prior to the date of an order whereby 430 vacancies were diverted to regularize such ad hoc EEs (C) which had rendered 10 years of service on ad hoc basis.
9(b). According to Shri Bhardwaj, the above mentioned issues have already been decided by Honble Supreme Court in a catena of cases. He has quoted the following cases:-
UOI & Ors. Vs. Vijender Singh & Ors., WP(C) No.1188-90/2005 & WP(C) No. 1723-26/2010.
Nirmal Chandra Sinha Vs. UOI & Ors., SCC (2008)14(29).
Kaushal Kishore Singh Vs. Dy. Director of Education, SCC (2002) 9 (634).
V.P. Srivastava & Ors. Vs. The State of M.P. & Ors., JT (1996) 2 374.
Shiba Shankar Mahapatra & Ors. Vs. State of Orissa & Ors., SCC (2010) 12 471.
Pawam Pratap Singh & Ors. Vs. Reevan Singh & Ors., Scale 2011 (2) 327.
Uttranchal Forest Rangers Assn. (Direct Recruit) & Ors. Vs. State of UP & Ors., SCC (2006) 10 346.
UOI & Ors. Vs. K.K. Vaera & Ors., SCC (Supp) 1989 2 625.
Nani Sha & Ors. Vs. State of Arunachal Pradesh & Ors., SCC (2007) 15 406.
Registrar, H.C. M.P. Vs. B.A. Nigam, AIR 1973 SC 1271.
Baldeo Prasad & Ors. Vs. Akhouri Sachindra Nath & Ors., SCC (Supp.)(1991) 2 336.
According to him it has been clearly held in these judgments that promotion or seniority cannot be given retrospectively and since the applicants are claiming seniority from retrospective effect and not from the date of their regular promotion their OAs deserve to be dismissed in view of these judgments.
10(a). We also heard learned counsel Sh. Arun Bhardwaj who was representing respondents in OA-3041/2012 and OA-3372/2012. He submitted that the decision in these OAs is likely to impact the aforesaid OAs also. He also stated that the applicants of these OAs had hidden and suppressed the fact that there was no direction from the Honble Supreme Court in J.N. Goels case to ad here the case. Further, it is also wrong to say that promotion of 326 of AEs (C) to EEs made by order dated 03.11.1999 was in pursuance of the directions of the Honble Supreme Court in J.N. Goels case. In fact there was no such direction. He further stated that it is also wrong to say that Recruitment Rules 1996 were promulgated by the Government in pursuance of the directions of the Honble Supreme Court in J.N. Goels case. According to him Government had made error in calculation when they diverted 430 vacancies form the quota of AEEs (Civil) to AE (C)and this has been admitted by the Government in WP(C) No. 840/2003 which is under adjudication in the Honble High Court of Delhi. The errors in calculation are also under dispute in OAs No. 3359/2010, 3446/2010, 3411/2010 in which the applicants are also party.
10(b). Sh. Bhardwaj, learned counsel argued that the applicants have suppressed the fact that were wrongly promoted from AE (C) to EE (C) on 03.11.1999 against diverted vacancies even though they were not serving as ad hoc EEs prior to 28.10.1996. The wrong implication or diversion order dated 06.07.199 and a wrong promotion granted to the applicants is already under adjudication in this Tribunal. He also stated that in OA-1310/2008 titled Vivek Bansal Vs. UOI and OA-817/2008 titled B.P. Singh Vs. UOI this Tribunal has directed the respondents to recast the seniority list of 2004 and prepare a flawless seniority list which alone should be operated. According to Sh. Bhardwaj the seniority list dated 28.09.2012 has been prepared in compliance of these directions of this Tribunal and is in accordance with the Rules as well as judgments of Honble Supreme Court in the case of State of Uttaranchal Vs. Dinesh Kumar Sharma. On the basis of these arguments Sh. Bhardwaj stated that relief prayed for by the applicants should not be granted.
11(a). After having heard counsel of all the parties, we have framed he following issues for our determination:-
(i) Whether the AEs (Civil) were entitled to claim seniority with retrospective effect instead of the actual date of their promotion granted on the basis of DPC recommendations?
(ii) Whether the respondents were justified in issuing another seniority list of 28.09.2012 when seniority of those appointed till 28.10.1996 had already been finalized on 10.11.2004?
(iii) In certain OAs filed before this Tribunal the calculation of vacancies diverted from AEE (C) quota to AE (C) quota i.e. 430 has also been under dispute. What would be the impact of judgment of these OAs on the seniority list of 28.09.2012?
(iv) Whether the respondents are justified in going ahead with making promotions to the grade of SE (C) on the basis of seniority list dated 28.09.2012.
In our opinion our findings on these issues will determine whether any of reliefs asked for by the applicants can be granted or not. We have considered each of these issues one by one.
11(b). As regards the issue No.(i), we find that this issue has already been adjudicated by this Tribunal while deciding OAs No. 779, 1626 and 1349 of 2006 vide common order dated 16.07.2007. In these OAs, certain officers of AE (C) stream who had been assigned deemed date of promotion with retrospective effect from dates 31.03.1995, 31.03.1996 and 28.10.1996 had claimed seniority and benefit of NFJAG with reference to their deemed date of promotion. These OAs were dismissed by this Tribunal on 16.07.2007. The operative part of the order has already been extracted in earlier part of the judgment. The Tribunal held that the AEs (C) were promoted in the year 1999 only on diversion of vacancies from the quota of AEEs (C) in relaxation of Rules. They were not entitled to count seniority from deemed date of regular promotion and that the official respondents had clearly erred while issuing the seniority list dated 10.11.2004. They also held that a mistake committed in the past in an administrative matter can be rectified. The Tribunal, therefore, dismissed the claims of the applicants of these OAs not only for grant of seniority from retrospective date but also for grant of benefit of NFJAG from back date. This principle was also upheld by the Honble High Court of Delhi while disposing of Writ Petition (C) Nos. 1188-90/2005 and other connected OAs by their order dated 29.11.2010 when they held that service jurisprudence does not recognize jurisprudential concept of deemed retrospective promotion and unless there exists a rule or residual power under which retrospective promotion can be granted, no person can claim a right to be promoted from the date of occurrence of vacancy.
11(c). Further, we find that in OA-693/2006 disposed of on 09.07.2008 this Tribunal has again rejected the claim of the applicants of the OA for promotion as SE (C) on the basis of deemed date of promotion. Writ Petition No. 3983/2011 challenging this order has also been dismissed by the Honble High Court of Delhi.
11(d). OA-2130/2007 titled R.R. Verma & Ors. on the same issue was also dismissed by this Tribunal on 09.01.2009 in which again the claim of seniority and further promotion on the basis of retrospective promotion as EE (C) was not allowed.
11(e). Thus, we find that this issued has already been adjudicated by this Tribunal in a number of cases. The orders of the Tribunal have so far not been set aside by any higher Court. The order dated 16.07.2007 in OAs No. 779, 1626 and 1349 of 2006 had been challenged in the Honble High Court of Delhi through Writ Petition No. 3646/2007 but the matter is still pending and no stay has been granted in the same. Since the Tribunal had already decided this issue it is not open to us to re-adjudicate on this matter. As such, we hold that in accordance with the judgments of this Tribunal in the earlier cases on this subject the AEs (C) are not entitled for promotion as well as seniority from a retrospective date and their seniority has to be reckoned only from or after 03.11.1999 i.e. date on which they were actually granted promotion on the basis of recommendations of DPC.
11(f). Regarding issue No.(ii) the official respondents have given in their reply following reasons for issue of revised seniority list dated 28.09.2012:-
(a) DOP&T had objected to grant of deemed date of promotion to AEs (C) as being in contravention of their guidelines.
(b) This Tribunal vide its order dated 16.07.2007 had held that the official respondents had erred while preparing the seniority list of 2004 on the basis of deemed date of promotion. They had also held that an administrative error committed in the past can be rectified.
(c) this Tribunal in OA-1310/2008 decided on 09.01.2009 had issued directions to recast and draw a flawless seniority list. This order of the Tribunal has also not been set aside or modified by any Court.
(d) While the seniority list of 10.11.2004 was meant to contain names of officers promoted uptill 28.10.1996, names of certain officers who were promoted in 1999 were also reflected in that whereas names of certain other officers appointed as EE (C) from 1997 onwards were not reflected.
(e) No judicial order exists debarring the official respondents not to rectify the mistakes appearing in the seniority list of 2004.
11(e). Against these arguments given by the official respondents for revising seniority list of 2004 the applicants had given the following reasons for not issuing list of 2012:-
(i) Revision in seniority list after a long gap of almost 8 years had unsettled the already settled seniority position and had caused hardship and humiliation to the AEs (C) promoted as EEs (C).
(ii) The order of the Tribunal dated 16.07.2007 was in contravention of the order of the Honble High Court in Writ Petition No. 12914/2009 dated 27.07.2010. In the said order the Honble High Court had held that the 2004 seniority list had become final for promotions made against vacancies arising upto 28.10.1996 and if at all Government wanted to now include anybody in that list it can only be through a supplementary list. Since this order of the Tribunal has not been challenged, it has now attained finality.
11(f). The official respondents while replying to the arguments of the applicants had stated that the Honble High Court of Delhi had clarified that it would be open to the department to draw up a further seniority list of EEs (C) post 01.01.1997 and that the Honble High Court had not restrained the department from revising the seniority list of 2004.
11(g). In our opinion the reasons given by the official respondents are justified. In the wake of various judicial pronouncements holding that back dated seniority cannot be given to the AEs (C) promoted against diverted vacancies, a revision of seniority list had become necessary. There was also a direction from this Tribunal for drawing up a flawless seniority list and operate the same. As far as the judgment of Honble High Court of Delhi in Writ Petition No. 12914/2009 dated 27.07.2010 is concerned, there are conflicting claims from the applicants as well as the official respondents. However, it is understood that a Contempt Petition on this subject is pending before the Honble High Court. Thus, Honble High Court of Delhi is already seized of the matter and their judgment will decide whether the respondents have in any way contravened their orders.
11(h). It is true that the revision in seniority list has taken place after a long gap of 8 years and this unsettles the seniority position that had existed prior to issue of the 2012 seniority list. This no doubt causes hardship and humiliation to those adversely affected. Such situation should generally be avoided. However, merely for this reason the seniority list of 2012 does not get vitiated.
11(i). Thus, we hold that in the wake of several pronouncements of this Tribunal some of which have been upheld by the Honble High Court, the respondents were justified in issuing a revised seniority list in 2012.
11(j). Regarding the issue No.(iii) learned counsel Sh. Arun Bhardwaj had stated that OAs No. 3041 and 3372 of 2012 were pending before this Tribunal in which the calculation of 430 vacancies for diversion from AEE (C) quota to AE (C) quota has been challenged. According to him while diversion was done for the purpose of regularizing ad hoc promotions, the number of vacancies diverted was much in excess of the ad hoc EEs (C) available at that time. Sh. Bhardwaj, learned counsel stated that this mistake has also been admitted by the Government, in Writ Petition No. 840/2003 which is under adjudication in the Honble High Court of Delhi. He stated that the errors in calculation are also under dispute in OAs No. 3359/2010, 3446/2010 and 3411/2010.
11(k). In our opinion, even if the aforementioned OAs in which errors in calculation have been challenged are allowed, only the number of vacancies diverted and the number of AE(C) promoted against them may change. However, this is not likely to have any bearing on the principle of reckoning seniority of the officers promoted. As of now there is no reason to say that the respondents should have waited for decision in these OAs before issuing revised seniority list particularly considering the fact that the diversion has been upheld by the Honble High Court also.
12. On the basis of findings on the above issues, we find that the 2012 seniority list has now replaced the 2004 seniority list. This list has been drawn on the directions of this Tribunal dated 09.01.2009 directing the respondents to draw a flawless seniority list and to operate that for further promotions. There is no judicial order existing at the moment which prohibits operation of this seniority list. Under these circumstances, in our opinion, the respondents were right in holding DPC based on this seniority list for making promotions to the grade of SE(C).
13. On the basis of the above, we come to the conclusion that none of the reliefs asked for by the applicants can be granted. Accordingly, O.A. is dismissed. There will be no order as to costs.
14. A copy of this order be placed in OA-3274/2011, OA-3041/2012, OA-3372/2012 and OA-856/2013.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/