Central Administrative Tribunal - Delhi
Sh. Nafisur Rahman vs Union Of India Through on 9 March, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4308/2014
Reserved on : 27.02.2015.
Pronounced on :09.03.2015.
Honble Mr. Shekhar Agarwal, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
Sh. Nafisur Rahman
Seniority No. 1550,
Assistant Engineer (Civil)
Group-B working in CPWD
Aged about 58 years
S/o late Sh. Mujibur Rehman,
R/o H-16, Plot No. 8/16,
Sector-3, Rajender Nagar,
Ghaziabad, UP. . Applicant
(through Sh. Anil Singal, Advocate)
Versus
1. Union of India through
Its Secretary,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
2. Director General,
CPWD, Nirman Bhawan,
New Delhi.
3. DOPT through
Its Secretary,
North Block, New Delhi.
4. S.C. Meena (ST)
Seniority No. 726.
5. Kalu Ram Meena (ST)
Seniority No. 776.
6. A.K. Garg (UR)
Seniority No. 792.
7. Ishwari Prasad (UR)
Seniority No. 794.
8. Parveen Kumar (UR)
Seniority No. 796.
9. S.S. Pathak (UR)
Seniority No. 826.
10. Virendra Singh (UR)
Seniority No. 926.
11. Bharat Lal Meena(ST)
Seniority No. 1026.
12. Sunil Kumar (UR)
Seniority No. 1126.
13. Raj Kumar (SC)
Seniority No. 1226.
14. Pawan Kumar (UR)
Seniority No.1525. . Respondents
(Respondent No. 4 to 14 are all Assistant Engineer or Executive Engineer on ad hoc basis working in the office of the official respondents and are to be served through respondent No.2)
(through Sh. Rajeev Kumar, Advocate for official respondents and Sh. C. Mohan Rao with Sh. Lokesh Kumar Sharma, Advocate for private respondents No. 4 to 14.)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant is holding the post of Assistant Engineer (Civil) in the office of the respondents and is to be considered for promotion to the grade of Executive Engineer (Civil) on seniority-cum-merit basis. According to him, the post of Assistant Engineer is to be filled up 100% by promotion, out of which, 50% is on the basis of seniority-cum-merit and the remaining 50% on the basis of Limited Departmental Competitive Examination (LDCE). As per Recruitment Rules, Junior Engineers with four years of service in that grade are eligible for taking the LDCE and Junior Engineers with eight years of service are eligible to be considered for promotion under the seniority quota. LDCE was held in the year 1989. After that no Notice for holding of LDCE was issued in the year 1990 & 1991. Thereafter, all the vacancies were consolidated and the LDCE was held in 1992. One merit list was prepared and seniority of those selected was assigned as per merit in the examination. During the period 1993-1997, no LDCE was held even though promotions in the seniority quota were continued to be made. The applicant was also got promoted to the rank of Assistant Engineer on 17.03.1998 under the seniority quota. According to the applicant, when holding of LDCE after a long gap was being considered on 03.11.1997, UPSC who is responsible for conducting the examination advised the respondent department that all the candidates who fulfilled the eligibility conditions were to be treated at par and candidates qualifying on the result of the examination were to be assigned seniority on the basis of their rank in the merit list. Respondent No.1 accepted the advice of the UPSC. Meanwhile, new Recruitment Rules came into effect from 18.06.1997 under which the LDCE was to be conducted by the department itself instead of UPSC. Accordingly, an examination Notice was issued on 16.09.1998 for holding LDCE, 1999 for 391 consolidated vacancies of Assistant Engineers. In the aforesaid Notice, it was provided that Junior Engineers who had completed four years of service as on 01.09.1998 were eligible to appear in the same. The applicant has further stated that since he had already been promoted to the rank of Assistant Engineer, he was not eligible to apply for the aforesaid examination. The respondents declared the result of the LDCE in which private respondents No. 4 to 14 amongst others were successful and accordingly they were promoted in the year 2001-2002. According to the applicant, in response to RTI application, the respondents disclosed to him that while considering the successful candidates of LDCE, 1999, ACRs for the period 1994-95, 1995-96, 1996-97 and 1997-98 were considered.
2. According to the applicant, the respondents issued a seniority list on 01.08.2011 in which the applicant was placed above the promotees of LDCE 1999. However, this list was quashed by this Tribunal vide judgment dated 05.09.2013, which was subsequently upheld by Honble High Court of Delhi on 27.08.2014 in Writ Petition No. 8154/2013. Thereafter, the respondents issued a provisional seniority list on 20.08.2014 based on the O.M. dated 04.03.2014 and called for objections, if any, on the same. The applicant submitted his representation on 18.09.2014. However, the respondents rejected his representation on 18.11.2014 and issued fresh final seniority list on 19.11.2014, which is impugned in this O.A. The grievance of the applicant is that in the seniority list dated 19.11.2014, the LDCE, 1999 promotees have been placed above him. He has, therefore, filed this O.A. before us seeking the following relief:-
(A) To declare that the OM dt. 4.3.2014 is not applicable for fixation of seniority between two set of promotees.
(B) To quash and set aside OM dt. 4.3.2014 to the extent it is being treated applicable or applied for fixation of seniority between two set of promotees.
(C) To quash and set aside Final Seniority List of Assistant Engineers (Civil) dt. 19.11.2014 being based on OM dt. 4.3.2014.
(D) To quash and set aside Order dt. 18.11.2014.
(E) To direct the respondents to follow OM dt. 3.7.1986 for fixation of seniority between two set of promotees and then determine/assign seniority to the applicant taking into consideration the date of promotion to the rank of AE vis-`-vis AEs who were promoted on the basis of LDCE-99 in the year 2001-02.
(F) To award costs in favor of the applicant and pass any order or orders, which this Honble Tribunal may deem just & equitable in the facts & circumstances of the case.
3. The contention of the applicant is that since he had already been promoted as Assistant Engineer on 17.03.1998 against seniority quota, as per Notice dated 16.09.1998, he was not eligible to apply for appearing in the LDCE. Moreover, the Notice indicated only consolidated vacancies, common eligibility date and common merit/ranking and therefore consequential seniority should also have been as per one merit. But, later on, the respondents assigned year-wise vacancies to the LDCE, 1999 candidates and also gave them seniority accordingly. Thus, the applicant was deprived of a chance to appear in the LDCE, 1999 to improve his seniority. Even the RTI reply dated 19.06.2008 indicated that of all candidates of LDCE, 1999 only ACRs for the period 1994-1995 to 1997-1998 were vitiated. If the intention of the respondents was to segregate the vacancies year-wise and assign the same to the candidates, then ACRs of the preceding five years commencing from the vacancy year should have been evaluated.
3.1 Applicant has further argued that the OM dated 04.03.2014 cannot be applied for determining the inter-se-seniority of Assistant Engineers coming through seniority quota and those coming through LDCE, 1999 as these instructions are applicable for determination of inter-se-seniority between direct recruits and promotees and not between two set of promotees. The applicant argued that even those coming through LDCE were to be treated as promotees as has been laid down in several judgments. In this regard, he relied on the judgment of Full Bench of this Tribunal dated 05.02.1993 in the case of Sh. Ashok Mehta & Ors. Vs. Regional Provident Fund Commissioner & Anr. (OA-1595/1987 and other connected OAs.). He also relied on the judgment of Honble Supreme Court in the case of Swapan Kumar Pal and Ors. Vs. Samitabhar Chakraborty and Ors., (2001) 5 SCC 581 on the same issue. Further, he relied on the judgment of Honble High Court of Delhi in Writ Petition (C)No. 1315/2015) (Satvir Singh & Ors. Vs. UOI & Ors.) dated 12.02.2015 on the same issue.
3.2 He also argued that Recruitment Rules dated 18.06.1997 replaced the old Recruitment Rules of 1954. Therefore, all the vacancies of Assistant Engineers available as on 18.06.1997 were required to be filled as per old Recruitment Rules and vacancies arising after that were required to be filled as per new Recruitment Rules. The respondents could not have filled all the vacancies through one examination as per the new Recruitment Rules.
3.3 The applicant has further stated that no instructions are available for fixing seniority between two set of promotees as is the case in the present O.A. Even the respondents have admitted to this position in their reply.
3.4 The applicant has further argued that retrospective promotion cannot be granted to candidates who had succeeded in LDCE, 1999 as this is against several judgments of various Courts. In this regard, he relied on the judgment of Honble Supreme Court in the case of Nani Sha and Others Vs. State of Arunachal Pradesh and Others, (2007) 15 SCC 406. He also relied on the judgment of Apex Court in the case of Mukherjee (Smt) and Others Vs. UOI and Others, (1996) 9 SCC 59 as well as the judgment in the case of BSNL Vs. S.K. Dubey (Civil Appeal No. 7830/2014) dated 12.08.2014. He also argued that the judgment dated 15.02.1999 in OAs No. 2239/1998 and 2526/1998 cannot be binding as has been held by this Tribunal in its judgment dated 09.08.2005 in OA-497/2005.
3.5 According to the applicant, the seniority list dated 19.11.2014 makes mockery of all the legal instructions regarding fixation of seniority between two set of employees as slots have been left blank for incumbents of LDCE, 2003 onwards that is yet to be conducted for the so called vacancies falling in the quota of LDCE. Applicant has also argued that private respondents No. 4 to 14, who got promoted to the posts of Assistant Engineer on the basis of LDCE, 1999 were actually junior to him and were working under the applicant. Therefore, now placing them above him in the seniority list is totally unjust, unreasonable and against tenets of law.
4. The official respondents have filed their reply in which they have stated that LDCE for promotions could not be conducted regularly due to legal and administrative reasons. UPSC conducted the LDCE in the years 1978, 1979, 1982, 1983, 1989 & 1992 and consolidated result was published for all vacancies. Thereafter, as per new Recruitment Rules, the next LDCEs were held in 1999 & 2002 by CPWD Training Institute. Results were published on the year-wise merit basis as per directions of this Tribunal in its judgment dated 15.02.1999 in OA-2239/1998 (Kamal Kishore Joshi & Ors. Vs. UOI & Ors.). The inter-se-seniority of the DPC promotees vis-`-vis LDCE promotees was fixed by rotation of vacancies between these two channels. Even when LDCE, 1989 was conducted for the vacancy years 1987-1988, 1988-89 & 1989-1990, the seniority for the successful candidates was assigned from the year 1987 to 1991 by rotating vacancies in the ratio of 1:1 between DPC promotees & LDCE promotees as per DoP&T O.M. dated 1986 and 1959. Thereafter, LDCE, 1992 was conducted for the vacancy year 1990-1991, 1991-1992 & 1992-1993 and the seniority of the successful candidates was similarly assigned for the years 1991 to 1994.
4.1 Official respondents have further stated that when LDCE, 1999 was notified after a gap of seven years, two OAs bearing Nos. 2239/1998 and 2526/1998 were filed before this Tribunal. These were disposed of vide order dated 15.02.1999, the relevant part of which reads as follows:-
In the light of the detailed discussions aforesaid and in the interest of justice and fair play, we do not think it appropriate to apply broken on the wheels of the proposed selection process. For this reason, the O.A. deserves to be dismissed and we do so accordingly. However, to take care of some of the reasonable apprehension of the applicants, it would be appropriate that while conducting the present selection and finalizing the process thereof, respond shall take precautions in terms of the following:
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. Vacancies of 391 shall be recalculated to ensure that 1:1 ratio between the two groups for the years from 1993 to 1999 have not been tilted to unduly favour one of the two contending groups. Accordingly, vacancies were segregated and year-wise eligibility cum merit was determined of successful candidates for 336 vacancies. While several Writ Petitions were filed against the aforesaid order of the Tribunal, none of them could succeed for one reason or the other. Further, the respondents have stated that the directions of this Tribunal dated 15.02.1999 were upheld by Honble High Court of Delhi in their judgment dated 24.09.2002 in Writ Petition (C) No. 2621/2002 (UOI Vs. Ajmer Singh & Ors.).
4.2 A provisional seniority list was prepared in 2002 based on the guidelines of DoP&T dated 1959, 1978 and 03.07.1986. These seniority lists were prepared by rotation of vacancies of each year between candidates coming through LDCE and through DPC based on their seniority in the ratio of 1:1. This seniority list dated 04.06.2002 was not challenged by the applicant nor any of the DPC promotees. Even many Assistant Engineers were promoted as ad hoc Executive Engineers based on this provisional seniority list but none of these appointments were challenged.
4.3 In OA-428/2009, the department stated before the Tribunal that the seniority list of 4.6.02 was provisional. The Tribunal then directed the department to finalize the seniority list. In compliance of which, the seniority list of 2011 was issued on 01.08.2011. This was based on DoP&T O.M. dated 03.03.2008, which had been issued in the meanwhile. This seniority list was challenged through OA-3596/2011 and OA-475/2012. These were disposed of on 05.09.2013 by the Tribunal setting aside both the provisional list dated 04.06.2002 as well as seniority list dated 01.08.2011 and directions were given to the respondents to recast the provisional seniority list on the principles laid down by the Apex Court in the case of Central Provident Fund Commissioner vs. N. Ravindran (Civil Appeal Nos. 4556-59/1992) considering LDCE as qualifying exam and not as competitive exam. The above judgment was challenged by the official respondents as well as private respondent in Honble High Court of Delhi in Writ Petition (C) No. 8154/2013 (D.P. Jindal Vs. UOI) and other connected petitions. Meanwhile, DoP&T issued fresh O.M. dated 04.03.2014 by which O.M. dated 03.03.2008 was withdrawn ab initio and treated as non-existent, following the judgment of Honble Supreme Court in the case of N.R. Parmar Vs. UOI & Ors., in Civil Appeal Nos. 7514-7515/2005. The respondents then issued a provisional seniority list on 20.08.2014. Thereafter, the Honble High Court of Delhi vide their judgment dated 27.08.2014 quashed the findings of this Tribunal dated 05.09.2013 and taking note of the fact that a provisional seniority list dated 20.08.2014 had been issued by the respondents directed them to finalize the same within eight weeks after deciding all the objections received against the same.
4.4 In compliance thereof, the respondents have issued the final seniority list dated 19.11.2014, which has been impugned in this O.A. According to the official respondents, this seniority list is just an extension of previous seniority list of 2002 and was prepared on the basis of DoP&T O.M. dated 03.07.1986. The prevailing practice of the department for assigning seniority by rotation of vacancy for a particular year between DPC and LDCE quota candidates was also upheld by Honble High Court of Delhi in their judgment dated 29.11.2012 in WP(C) No. 1188-90/2005 (UOI & Ors. Vs. Vijender Singh & Ors.). Further, Honble Andhra Pradesh High Court in their judgment in Writ Petition No. 15053/2009 (P.V. Shobha & Ors. Vs. UOI) dated 04.03.2010 have upheld the principle of rotation of vacancies between DPC and LDCE quota candidates in the ratio of their quota for promotion as per the Recruitment Rules.
4.5 The official respondents have further stated that there is no direct O.M. to fix inter-se-seniority between LDCE quota and DPC quota and DoP&T has treated LDCE at par with direct recruits for this purpose. According to them, as per O.M. dated 1959 and O.M. dated 1988 even if 100% promotion is through two different feeder cadre, the inter-se-seniority shall be fixed by rotation of vacancy of that year similar to direct recruits and DPC recruits.
5. Private respondents No. 4 to 14 have also filed their reply as well as their written arguments which have been taken on record. After narrating the facts of the case, they have stated that the seniority list dated 04.06.2002 was not challenged by any of the DPC promotees including the present applicant. No objection even was raised regarding this provisional seniority list. Since this list was challenged any where, it has attained finality.
5.1 In their written arguments, the private respondents have stated that the applicant had appeared in the LDCE on two occasions but was not successful. He was, however, promoted as Assistant Engineer on 17.03.1998 under the DPC quota. His main grievance is that he was not permitted to take the LDCE, 1999 which enabled his juniors to become his seniors. It was for the applicant to challenge the examination Notification issued at that time as per law within the prescribed time. The applicant, however, did not do so. He, however, makes a strange contention that nobody challenged this Notification. However, if the applicant was purportedly aggrieved by the same, it was for him to challenge the same and he cannot make out a grievance that nobody had challenged it. He cannot now be allowed to challenge it after a gap of 16 years under the garb of challenging the final seniority list. Whatever short comings were there in the Notification and whatever consequences have arisen on account of that cannot be now challenged after a gap of 16 years, 5.2 Further, the contention of the applicant is that since new Recruitment Rules had come into force from 18.06.1997, vacancies arisen prior to their were required to be filled through old Recruitment Rules. However, this contention cannot be accepted as the only change made in the Recruitment Rules was regarding institution, which was to conduct the LDCE.
5.3 Further, the contention of the applicant that the seniority list dated 04.06.2002 was only provisional and the final seniority list was issued only on 19.11.2014 is also misleading and incorrect as the basis of the seniority list dated 04.06.2002 and 20.08.2014 is the same.
5.4 The contention of the applicant that the practice of the official respondents to keep vacant slots for being filled by direct recruits of later years thereby giving seniority over promotees was also questionable has to be appreciated in the context of use of the word unintended.
5.5 The applicant has also referred to the judgment of this Tribunal in the case of Ramanand Vs. UOI & Ors. (OA-497/2005) dated 09.08.2005 to contend that the directions given in the judgment dated 15.02.1999 (supra) were not binding. This is absolutely incorrect as the judgment dated 15.02.199 was challenged before Honble High Court of Delhi but the challenge could not succeed.
5.6 Lastly, the private respondents argued that there is no merit in the contentions raised by the applicant as the seniority list has attained finality way back in the year 2002. Further, this seniority is based on the directions of this Tribunal as upheld by Honble High Court of Delhi on two subsequent dates.
6. We have heard the parties and have perused the material on record. The first ground taken by the applicant in support of his case is regarding the short comings in the Notification dated 16.09.1998 issued for conducting the LDCE, 1999. According to the applicant this examination was only open for Junior Engineers with at least four years of service. Since he had already been promoted as Assistant Engineer in the seniority quota on 17.03.1998, he was not permitted to take this examination. Moreover, the examination Notice gave no indication that there would be segregation of vacancies year-wise leading to assessment of seniority based on the vacancy year assigned to successful candidate. Had he known that, he could have also taken the examination and availed of opportunity to improve his seniority. The respondents on their part through this Notice gave the impression that there were consolidating vacancies and preparing a common merit list.
6.1 We have considered the aforesaid submissions of the applicant. On seeing the Notice dated 16.09.1998, a copy of which is available in the paperbook, we find merit in the aforesaid contentions of the applicant. The aforesaid Notice was indeed misleading and gave no indication of the fact that the vacancies were later on to be segregated year-wise. Also no indication regarding seniority fixation based on the vacancy year assigned to a successful candidate was given in the Notice. The Notice also indicated that only Junior Engineers were eligible to take the examination and persons like the applicant who had already been promoted to the post of Assistant Engineer were deprived of appearing in the same. Nevertheless, the private respondents are right in contending that the applicant cannot challenge the Notice dated 16.09.1998 now after a gap of 16 years. If the applicant was aggrieved by the aforesaid Notice, he should have availed of the opportunity of challenging the same within the prescribed time limit. The official respondents have also stated in their counter that it was a practice of the department to determine inter-se-seniority of LDCE and DPC candidates by assigning vacancies year-wise to LDCE candidates and then rotating the same in the ratio 1:1 between DPC abd LDCE candidates. This according to them had been done in the vacancy year 1987-1988, 1988-1989 and 1989-1990 and thereafter again in 1991-1992 and 1992-1993. The applicant had who had himself appeared in LDCE twice could not have been unaware of this practice.
7. After hearing the submissions of the parties, we are convinced that a challenge to the Notice dated 16.09.1998 cannot now be accepted at this belated stage. In any case, from the prayer clause of the applicant, we find that he has not prayed for setting aside the aforesaid Notice but has only challenged the seniority list dated 19.11.2014 and the O.M. dated 04.03.2014 of DoP&T based on which this seniority list has been drawn.
7.1 The applicant has also pointed out that UPSC had turned down the proposal of the department that the examination Notice for LDCE should provide that those eligible candidates qualifying in the merit will be considered for vacancies falling in the year in which they complete four years of service or thereafter and that while promotions will be made as per merit list, seniority would be assigned on the basis of the year in which he/she completed four years as Junior Engineer. The UPSC had replied to the aforesaid proposal by their letter dated 03.11.19976 in which they had stated as follows:-
2(i) In all the competitive examination held by the UPSC, the candidates who fulfil the conditions of eligibility prescribed for that particular examination as on the crucial date are treated to be at par and the candidates qualifying on the result of the examination are assigned seniority on the basis of their rank in the merit list. Fixation of seniority in the manner proposed by the Ministry in their letter cited above will violate the well established principle of fixation of seniority on the basis of rank in the merit list.
(ii) In the past also, this examination was held by the Commission by a gap of some years, for example, after the year 1979 this examination was held in 1982, in 1983, then in 1989 and 1992. No such provision, as now proposed by the Ministry, was incorporated in the rules of examination in those years. The department thereafter accepted the advice given by UPSC as is clear from their letter dated 24.02.1998 (Annexure A-8). On the basis of the above, the applicant contended that the UPSC had rejected and the department had accepted the rejection of the proposal to fix seniority on the basis of year-wise assessment of vacancies.
7.2 We have considered the aforesaid submissions. In our view, it is not necessary to go into the merits of these submissions as we have already held earlier that challenge to the Notice of the examination dated 16.09.1998 cannot be entertained at this belated stage. In any case, as is clear from the prayer clause of this O.A., the applicant is seeking only quashing of the seniority list of 19.11.2014 and not of the examination conducted then. For the same reason, we do not find it necessary to consider the contention of the applicant that vacancies arising prior to 18.06.1997 shall have been filled as per old Recruitment Rules requiring LDCE to be conducted by UPSC.
7.3 The next ground taken by the applicant is that the respondents have erred in finalizing the seniority list on the basis of O.M. dated 04.03.2014 because the aforesaid O.M. deals with fixation of inter-se-seniority between direct recruits and promotees and not between two sets of promotees as is the case in the instant O.A. He argued that those coming from LDCE cannot be regarded as direct recruits and have to be treated as promotees. In this regard, he relied on the judgment of Honble High Court of Delhi in Writ Petition (C) No. 1315/2015 dated 12.02.2015, in Para-1 of which the following has been observed:-
1. The question whether appointment by selection pursuant to a Limited Departmental Competitive Examination is promotion or direct recruitment has been decided by a decision in W.P.(C) No.2887/2012 Man Singh Vs. UOI & Ors. holding that it is a case of promotion, on the reasoning in paras 17, 18 and 19 as under:-
17. In support of her first contention, Ms. Rekha Palli, learned counsel for the petitioner has drawn our attention to the stand of the Ministry of Home Affairs (Personnel), New Delhi as well as the Department of Personnel and Training of the Government of India in their records which have been filed in a pending matter before the Supreme Court of India. The first noting (dated 18th November, 2011) is extracted in extenso hereafter and reads as follows:-
Department of Personnel & Training Estt (res) Reference notes of Ministry of Home Affairs on pages 2-3/ante.
2. Regarding clarification whether LDCE is Direct Recruitment or a mode of promotion, the RR Branch of this Department has clarified that the LDCE is a mode of promotion. On the issue of change in category of a person, who has been appointed on the basis of reservation, it is clarified vide this Departments OM dated 11.7.2002 that SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any. 7.4 He also relied on the judgment of Full Bench of this Tribunal in the case of Ashok Mehta & Ors. (supra) in which it was held that promotion to UDCs based on seniority and on the result of the competitive examination constitutes two different modes of promotion and not of direct recruitment. Both are to be regarded as promotees. On the basis of these two judgments, learned counsel for the applicant argued that the seniority between DPC promotees and LDCE promotees should have been fixed on the basis of O.M. dated 03.03.2008, which provides for doing so based on the date of DPC meeting in the case of promotees and on the date of announcement of results for LDCE promotees.
7.5 While we accept the contention of the applicant that LDCE appointees be treated as promotees and not as direct recruits, on going through the O.M. of 1986, we could not locate any provision in the same providing for fixation of seniority of LDCE candidates based on the date of announcement of results. In their reply, the respondents have admitted that there is no direct O.M. available to fix inter-se-seniority between DPC quota and LDCE quota and, therefore, DoPT has treated LDCE at par with direct recruits for the purpose of fixation of seniority. Further, we notice that in the O.M. dated 04.03.2014, no new directions have been given regarding fixation of inter-se-seniority between direct recruits and promotees. On the other hand, Clause-5(b) of this O.M. reads as follows:-
The rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a Recruitment Year, as provided in DOPY O.M. dated 7.2.1986/3.07.1986, would continue to operate for determination of inter se seniority between direct recruits and promotees; Thus, as far as the aforesaid O.M. is concerned, it provides for fixation of inter-se-seniority in accordance with the OMs dated 07.02.1986 and 03.07.1986. Therefore, the contention of the applicant that the seniority should have been fixed on the basis of O.M. dated 1986 and not on the basis of O.M. dated 04.03.2014 appears to be baseless. In our considered opinion, in absence of any other provision in the Rules, the rota quota rule for fixation of inter-se-seniority as provided in the O.M. dated 03.07.1986 and reiterated in O.M. dated 04.03.2014 shall apply.
7.6 The next issue to be decided is that even if rota quota rule is applied should the LDCE candidates get seniority based on the vacancy year assigned to them or should they get seniority based on the date of declaration of their result or from date of actual joining as Assistant Engineer. In this regard, we discuss hereunder each of the citations relied upon by the applicant to support his case that LDCE appointees could not have been granted seniority from a date prior to their date of joining.
7.7 The first case relied upon was the case of Ashok Mehta & Ors. (supra) in which Full Bench of this Tribunal in Para-8 of the judgment ruled as follows:-
8. In the light of our above discussion, we answer the questions referred to us in the context of the facts of these cases as follows:-
(a) The officers promoted on the basis of seniority subject to the rejection of unfit and those promoted on the result of the competitive examination shall be treated as promotees.
Persons promoted by both the modes of promotion shall be included in a common seniority list.
Their inter se seniority has to be determined on the basis of their total length of service which will be reckoned from the actual date of their promotion in accordance with the relevant recruitment rules.
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8. We have gone through the aforesaid judgment and we find that this judgment was given in the context of EPF (Staff & Conditions of Service) Regulations, 1962. In this case the applicants had been promoted on ad hoc basis on the basis of their seniority and were regularized later. They had claimed seniority from the date of ad hoc promotion. Their claim was denied and it was held that the inter-se-seniority of the promotees should be determined on the basis of their total length of service reckoned from the actual date of promotion made in accordance with the rules. The period of service on ad hoc basis was found to be de hors the rules and was, therefore, ignored. Clearly, this is not the position in the instant case. In this case, LDCE examination was held in accordance with the Recruitment Rules which provided for 50% quota for LDCE candidates. No ad hoc service was involved. Thus, we do not find this judgment to be of any help to the applicant.
8.1 Next he relied on the judgment of Honble Supreme Court in the case of Anuradha Mukherjee (Smt) (supra). In this case, three sources of recruitment were provided for appointment as Clerk grade-I in the Railways. These sources were direct recruitment, recruitment through LDCE and recruitment through DPC promotion. The issue involved was whether the ad hoc service rendered by promotees could be counted for the purpose of determination of inter-se-seniority. In that context, it was held that those appointed de hors the rules can get seniority not from the date of their initial appointment but from the date on which they were actually selected and appointed in accordance with the rules and their seniority would take effect from the date of their selection after due completion of the process. We find that in this case also the issue involved was different and pertained to counting of ad hoc service for promotion. The instant case is different wherein all the LDCE appointees have been appointed in accordance with the rules and assigned seniority on the basis of the vacancy year assigned to them.
8.2 The third case relied upon by the applicant was that of Nani Sha (supra). On going through the facts of this case also we find that the promotees herein were denied fixation of seniority based on retrospective promotion because it was found that no quota for promotees had been prescribed under the rules during the relevant period. Clearly, this is not the situation in the instant case wherein 50% quota is provided both for DPC promotees as well as LDCE appointees. Hence, this judgment also does not help the applicant.
8.3 Next the applicant relied on the judgment of Honble Supreme Court in the case of Swapan Kumar Pal and Ors. (supra). This judgment was delivered in the context of Para-302 of IREM in which it was held that the period of ad hoc promotion would not count towards seniority, it would be determined from the date of regular promotion only. Again, this does not appear to be relevant to the instant O.A. 8.4 Lastly, the applicant relied on the judgment of Honble Supreme Court in the case of UOI and Anr. Vs. Arulmozhi Iniarasu and Ors., (2011) 7 SCC 397 to say that in the aforesaid case it was held that Courts should not place reliance on decisions without discussing as to how facts of the case before them fits into the facts of the decision on which reliance is placed. We could not agree more with the applicant and have indeed followed the directions given in this judgment. Thus, in our opinion, the applicant could not cite any judgment to support his case that the seniority of LDCE appointees should be reckoned from the date of their appointment/date of declaration of result. Further, in all the cases cited above the issue involved was retrospective promotion and grant of seniority as a consequence of the same. However, in the instant case the retrospective promotion has not been given. The LDCE promotees have been assigned to vacancies of previous years in which LDCE examination could not be held. Their promotion remains prospective only for the purpose of salary as well as counting of service for next promotion as has been held by Honble High Court of Delhi in the case of UOI & Ors. Vs. Vijender Singh (WP No. 1188-1190/2005).
9. On the other hand, we find that in the O.M. dated 03.07.1986 the following was provided:-
2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees, which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
2.4.2 If adequate number of direct recruits does not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees. 9.1 In other words, to the extent direct recruits are not available, the promotees seniority will be changed together at the bottom of the seniority list below the last position upto which it is possible to determine seniority on the basis of rotation of quotas with reference to the actual number of direct recruits who become available.
9.2 The word available in the above rules had been subject of much controversy. Hence DoP&T had issued O.M. No. 20011/1/2006-Estt.(D) dated 03.03.2008 which provided that the actual year of appointment both in the case of direct recruits and promotees would be reckoned as the year of availability for the purpose of rotation and fixation of inter-se-seniority. The aforesaid O.M. was, however, found to be unsustainable by the Honble Supreme Court in Civil Appeal Nos. 7514-7515/2005 in the case of N.R. Parmar Vs. UOI & Ors. in their judgment dated 27.11.2012. Consequently, the DoP&T issue O.M. dated 04.03.2014, by Clause-5(a) of which the O.M. dated 03.03.2008 was treated as non-existent and withdrawn ab initio. The following further provisions were their in the aforesaid O.M.:-
b) The rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a Recruitment Year, as provided in DOPT O.M. dated 7.2.1986/3.07.1986, would continue to operate for determination of inter se seniority between direct recruits and promotees;
c) The available direct recruits and promotees, for assignment of inter se seniority, would refer to the direct recruits and promotees who are appointed against the vacancies of a Recruitment Year;
d) Recruitment Year would be the year of initiating the recruitment process against a vacancy year;
e) Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits; in the case of promotees the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for convening of DPC to fill up the vacancies through promotion would be the relevant date.
f) The initiation of recruitment process for any of the modes viz. direct recruitment or promotion would be deemed to be the initiation of recruitment process for the other mode as well;
g) Carry forward of vacancies against direct recruitment or promotion quota would be determined from the appointments made against the first attempt for filling up of the vacancies for a Recruitment Year;
h) The above principles for determination of inter se seniority of direct recruits and promotees would be effective from 27.11.2012, the date of Supreme Court Judgment in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs. U01 & Ors.
i) The cases of seniority already settled with reference to the applicable interpretation of the term availability, as contained in DoPT O.M. dated 7.2.86/3.7.86 may not be reopened.
10. The official respondents have stated in their reply that the 2011 seniority list was issued by them based on the O.M. dated 03.03.2008. Since this O.M. had been withdrawn ab initio and treated as non-existent, it had become necessary to withdraw the seniority list issued on the basis of the same. Honble High Court of Delhi vide their judgment dated 27.08.2014 in the case Of D.P. Jindal (supra) had directed the respondents to finalize the provisional seniority list dated 20.08.2014 and accordingly the respondents have proceeded to finalize the same and issued the final seniority list on 19.11.2014. While doing so, they have followed the instructions given in the O.M. dated 04.03.2014. According to these instructions, recruitment year would be the year of initiating the recruitment process against a year. However, in Clause-f, it is provided that initiation of recruitment process for any of the modes would be determined to be initiation of the recruitment process for the other mode as well. In the instant case, it is not denied that DPC promotions have taken place each year regularly. Therefore, in terms of the above instructions, it would amount to initiation of the recruitment process for LDCE quota also for each year. As such, even if the examination process was completed in the year 2002, the appointees would be assigned recruitment year based on the year of the vacancy allocated to them. Thus, in our opinion, the O.M. dated 04.03.2014 is squarely applicable in the aforesaid case and the respondents have not committed any error in finalizing seniority list based on the same. This issue has also been considered by Honble High Court of Andhra Pradesh in Writ Petition No. 1`5053/2009 in their judgment dated 04.03.2010 in which it has been held that inter-se-seniority between DPC and LDCE promotees be determined by rotation of vacancies between the two in the ratio of the quota prescribed for each stream.
11. Before we part with this case, we would like to make it clear that the assignment of vacancy year retrospectively holds good only for the purpose of determination of seniority and shall not have the effect of granting retrospective promotion for the purpose of salary or counting of service for next promotion. In this regard, we would like to draw attention to the judgment of Honble High Court of Delhi in Writ Petition Nos. 1188-1990/2005 (UOI & Ors. Vs. Vijender Singh & Ors.) in which Honble High Court have dealt with this issue in great details and have considered various judgments of Honble Supreme Court and other Courts regarding retrospective promotion.
12. To summarize, our conclusion is that the respondents have not committed any error in applying the O.M. dated 04.03.2014 for fixation of inter-se-seniority between DPC promotees and LDCE appointees. Even if LDCE appointees are held to be promotees, the O.M. dated 04.03.2014 would continue to apply for the purpose of determination of seniority. The prayer of the applicant that O.M. dated 04.03.2014 be quashed is found to be baseless. Further, the applicants prayer that seniority be determined on the basis of O.M. dated 03.07.1986 instead of O.M. dated 04.03.2014 is also found to be meaningless since in O.M. dated 04.03.2014 the principle for determining of inter-se-seniority has been reiterated as has been laid down in O.M. dated 03.07.1986 with further elaboration of the term available direct recruits and promotees in the light of the judgment of Honble Supreme Court in the case of N.R. Parmar (supra). We notice that in both seniority list of 2002 issued on the basis of 1986 O.M. and seniority list of 2014 the applicant has been placed below the private respondents.
13. Accordingly, we find no merit in this O.A. and the same is dismissed.
(Raj Vir Sharma) (Shekhar Agarwal) Member (J) Member (A) /vinita/