Delhi High Court
Vasdev Chhugani vs A.K. Kashyap And Ors. on 14 February, 2007
Author: J.P. Singh
Bench: Mukul Mudgal, J.P. Singh
JUDGMENT J.P. Singh, J.
1. This Letters Patent Appeal has been preferred by Sh. Vasdev Chhugani (hereinafter referred to as 'Appellant') against the order dated 20.5.2002 passed by the learned Single Judge, allowing the writ petition filed by respondent No. 1 herein (Shri A.K. Kashyap hereinafter referred to as 'Respondent No. 1') and directing 'Respondent No. 1' to be placed above 'Appellant' in the seniority list.
2. We have heard Mr. Pawan K. Behl, learned counsel for the appellant, Mr. Kirti Uppal, learned counsel for respondent No. 1 as well as Ms. Anusuya Salwan, learned counsel for the Delhi Development Authority (DDA).
3. Briefly the facts are that appellant was appointed as Junior Engineer (Civil) by DDA. At that time he was a Diploma holder in Civil Engineering and had 2 years experience. The eligibility for the said post was a Diploma holder with 2 years experience or a graduate in Civil Engineering. Respondent No. 1 joined as a graduate Engineer.
4. During the course of service appellant passed Degree in Civil Engineering (AMIE) on 3.3.1980 and completed 8 years of service as Junior Engineer on 15.3.1980. He was promoted as Assistant Engineer on the basis of Diploma and 8 years experience w.e.f. 20.1.1981, though he had become eligible on 15.3.1980.
5. The case of appellant is that since he had graduated in Civil Engineering on 3.3.1980 and had completed 8 years as Junior Engineer on 15.3.1980, he should have been promoted as Assistant Engineer at least w.e.f. 15.3.1980. One Shri J.S. Yadav, who was junior to appellant was promoted by Departmental Promotion Committee as Assistant Engineer w.e.f. 29.10.1980. Appellant made representation to the DDA submitting that some of the Assistant Engineers who had joined as Diploma holders and had graduated during their service had been given seniority with effect from the date of their joining and some of them have even been promoted as Executive Engineers. The Departmental Promotion Committee (DPC) considered his representation and found him eligible for promotion as Assistant Engineer w.e.f. 15.3.1980 onwards as a Degree holder. By establishment order dated 24.10.1997, the seniority of appellant was restored above Shri J.S. Yadav and he was accordingly promoted as Assistant Engineers w.e.f. from the same date as Shri J.S. Yadav i.e., 29.10.1980. Respondent No. 1 who had joined as a Degree holder, however, was promoted as Assistant Engineer on 3.12.1980. Aggrieved respondent No. 1 challenged the establishment order dated 24.10.1997 by filing a Writ Petition against the DDA and appellant, alleging that he was superceded without notice. Respondent No. 1's petition has been allowed against the appellant. Hence this appeal.
6. It is argued on behalf of appellant that respondent No. 1 filed the Writ Petition when he was already Assistant Engineer and during pendency of the Writ Petition appellant and Shri J.S. Yadav on the one hand and respondent No. 1 on the other hand on the basis of inter-se seniority in the Assistant Engineer's cadre had been promoted to the posts of Executive Engineers on 7.12.1999 and 28.12.1999 respectively. It is submitted that respondent No. 1 had not challenged the said promotions, therefore his Writ Petition was already infructuous and the learned Single Judge has erroneously placed respondent No. 1 as senior to the appellant.
7. Before the learned Single Judge the main contention of respondent No. 1 was that common final seniority list of Assistant Engineers was circulated vide letter dated 21.8.1996. In that list he (respondent No. 1) was placed at serial No. 306 while appellant was placed at serial No. 402 but in the subsequent seniority list, re-prepared on the basis of the Establishment Order dated 24.10.1997, he found that appellant was shown at serial No. 285-A i.e., above him. It is stated that the said Establishment Order was not circulated and respondent No. 1 came to know of it only on 16.9.1999 and submitted a representation but no action was taken on his representation. He, therefore, filed the Writ Petition which has been decided in his favor and against the appellant. The impugned judgment has quashed the Establishment Order dated 24.10.1997.
8. The above facts and circumstances show that the Establishment Order dated 24.10.1997 came into existence without notice to respondent No. 1 or without considering his case qua appellant and Shri J.S. Yadav. The learned Single Judge while allowing the Writ Petition inter alia held as follows:
a. Once respondent No. 3 (appellant herein) acquired a Degree and sought to come in the channel of Degree holders, he cannot claim seniority over persons who were either senior to him in the line of Degree holders or who may have been junior to him in the line of Diploma holders but who (Shri J.S. Yadav) happened to have acquired a Degree prior to him.
b. Respondent No. 3 (appellant herein) could not have been placed over petitioner (respondent No. 1 herein) since he would get the seniority from the date he became eligible as a Degree holder. In view of the fact that respondent No. 3 (appellant herein) became eligible only on 15.3.1980 while petitioner (respondent No. 1 herein) became eligible on 11.6.1979, respondent No. 3 (appellant herein) could not have been placed over petitioner (respondent No. 1).
c. Earlier in the seniority list dated 21.8.1996, prepared after inviting objection, respondent No. 3 (appellant herein) was shown junior to petitioner (respondent No. 1 herein). However, subsequently in another seniority list based on the Establishment Order dated 24.10.1997, without notice to petitioner (respondent No. 1 herein), the name of respondent No. 3 (appellant herein) was inserted over petitioner (respondent No. 1 herein), at serial No. 285-A.
9. This Establishment Order dated 24.10.1997 was not circulated and respondent No. 1 came to know of the same only on 16.9.1999. He submitted his representation against the said order on 17.9.1999 disputing the seniority assigned to appellant over respondent No. 1. Since no action was taken on the representation of respondent No. 1, he filed the Writ Petition, which we find was correctly allowed quashing the Establishment Order dated 24.10.1997 and directing the maintenance of the positions as per the seniority list dated 21.8.1996.
10. Thus, in our view, the learned Single Judge was justified in coming to the conclusion that having qualified as a Degree holder on 15.3.1980, appellant could not have claimed seniority over respondent No. 1 who as a Degree holder was eligible for promotion on 11.6.1979 in the channel of Degree holders. In this context the erstwhile inter-se seniority, if any between the appellant and the respondent No. 1 looses significance. The earlier seniority list dated 21.8.1996 was prepared after inviting objections. In that list appellant was shown junior to respondent No. 1. That earlier list was altered, without notice to respondent No. 1, by Establishment Order dated 24.10.1997 and name of appellant was inserted at serial No. 285-A above the name of respondent No. 1. Therefore, the subsequent seniority list cannot be sustained.
11. Considering all the facts and circumstances enumerated above we do not find any merit in the appeal, the same is, therefore, dismissed. Parties are, however, left to bear their own costs.