CWP No.816-CAT of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: CWP No.816-CAT of 2004 DATE OF DECISION: February 4, 2009 UNION TERRITORY, CHANDIGARH AND ...PETITIONERS ANOTHER VERSUS THE CENTRAL ADMINISTRATIVE TRIBUNAL, ...RESPONDENTS CHANDIGARH BENCH AND OTHERS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: MR. SANJIV SHARMA, ADVOCATE FOR THE PETITIONERS. MR. R.K. SHARMA, ADVOCATE FOR RESPONDENT NO.2. ASHUTOSH MOHUNTA, J. This petition has been filed under Article 226/227 of the Constitution of India by the Chandigarh Administration, for quashing the order dated 6.8.2003 (Annexure P-4) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short 'the Tribunal'), whereby the Original Application filed by respondent No.2 has been allowed and the petitioner-Chandigarh Administration has been directed that respondent No.2 be deemed to have been notionally promoted to the post of Executive Engineer w.e.f. 8.12.1998, for all purposes, except the arrears of pay and other allowances. Brief fact of the case are that respondent No.2 who was initially appointed as Junior Engineer Grade II on 25.7.1972, after earning regular promotions in the hierarchy, was promoted in due course of time to the post CWP No.816-CAT of 2004 -2- of Assistant Executive Engineer on 8.12.1992. Respondent No.2 became eligible for promotion to the next higher post of Executive Engineer after completion of six years of service as Assistant Executive Engineer on 8.12.1998, as per the applicable regulations, i.e. Punjab State Electricity Board, Service of Engineers (Electrical), (Chandigarh Amendment) Regulations 1985 (hereinafter called '1985 Regulations'). However, the case of respondent No.2 was not considered for promotion though two posts were available, which were being manner by deputationists at the relevant time. Feeling aggrieved, respondent No.2 filed an Original Application before the Tribunal, being O.A. No.1093-CH of 1999, inter- alia, praying for a direction to the Chandigarh Administration to consider and promote him to the post of Executive Engineer w.e.f. 8.12.1998, with all consequential benefits and challenging the orders whereby deputation period of deputationists have been extended. Vide order dated 1.12.2000, the Tribunal passed interim directions not to extend the period of deputation of deputationists beyond the period already permitted. During the pendency of the said case, one of the deputationists Sh. R.L. Kanodia was repatriated and respondent No.2 was given Current Duty Charge of the post of Executive Engineer. The said original application was decided by the Tribunal vide order dated 3.7.2001, the operative part of which is reproduced hereunder for facility of reference:- “In view of the above, the original application is disposed of with a direction to the respondent authorities to convene a meeting of the Departmental Promotion Committee for considering the cases of eligible officers, including the CWP No.816-CAT of 2004 -3- applicant for the post of Executive Engineer as per the Rules and the instructions on the subject within a period of two months from the date of receipt by them a copy of this order and pass an appropriate order. In case, any of the party is aggrieved with the outcome of the DPC or otherwise, it will be open to them to challenge the order in accordance with law. All interim orders earlier passed hereby stand vacated in view of the above directions.” In pursuance to the above direction issued by the Tribunal, a meeting of Departmental Promotion Committee was held to consider the case of respondent No.2 for promotion. Respondent No.2 was found fit and was promoted as Executive Engineer on 12.9.2001, on regular basis. However, he was not granted retrospective promotion w.e.f. 8.12.1998, as claimed by him. Respondent No.2 not satisfied filed O.A. No.890-CH of 2002 before the Tribunal, inter alia, praying for a direction to the petitioner- Chandigarh Administration to promote him w.e.f. 8.12.1998, when vacancy was available and he was eligible for promotion but was not promoted on account of posts being manned by deputationists. The said Original Application filed by the respondent No.2 has been allowed by the Tribunal vide order dated 6.8.2003 and the petitioner- Chandigarh Administration has been directed that respondent No.2 be deemed to have been notionally promoted to the post of Executive Engineer w.e.f. 8.12.1998, for all purposes except the arrears of pay and other allowances, which is subject matter of challenge in the present writ petition. Learned counsel for the petitioner has vehemently argued that CWP No.816-CAT of 2004 -4- the Tribunal fell in grave error in entertaining the Original Application as the same was barred and not maintainable on the Principle of Resjudicata. Respondent No.2 has in earlier O.A. No.1093-CH of 1999, has also made a prayer that a direction be issued to promote him w.e.f 8.12.1998, and the Tribunal vide order dated 3.7.2001, has directed the petitioner-Chandigarh Administration to convene a meeting of the Departmental Promotion Committee to consider the case of respondent No.2 for promotion. In pursuance to the said order the case of respondent No.2 was duly considered for promotion by the Departmental Promotion Committee and he was promoted vide order dated 12.09.2001. He has argued that the second Original Application was not maintainable as the matter was directly and substantially in issue in the former application. We do not find any merit in the contention of the learned counsel for the petitioner. Though, respondent No.2 has prayed for promotion w.e.f 8.12.1998, in the earlier Original Application also, however, the matter was not finally decided by the Tribunal in the said case. A bare perusal of the operative part of the order dated 3.7.2001, reproduced above, shows that the Tribunal has merely given a direction to the petitioner-Chandigarh Administration to consider the case of respondent No.2 and pass appropriate orders in accordance with applicable rules and instructions. Liberty was specifically granted to any aggrieved party to challenge the order in accordance with law. Thus, the Tribunal at that stage merely sent the case back to petitioner, i.e. Chandigarh Administration to take a decision in the first instance and at no stage the Tribunal decided or commented on the merits of the claim of respondent No.2 for promotion w.e.f. 8.12.1998. Thus, the Principle of Resjudicata is not applicable in the CWP No.816-CAT of 2004 -5- present case and the Original Application is maintainable. The learned counsel for the petitioner has argued that the Tribunal erred in holding that the deputationists were appointed in violation of the 1985 Regulations and there was no provision in the 1985 Regulations for appointment of deputationists. He has relied upon Regulation 4 Clause (c) of the 1985 Regulations to contend that the regulations envisaged appointment by transfer of an officer already in service of a Government or any other State Electricity Board or an undertaking of Government. The deputationists were appointed in accordance with the applicable regulations and hence the respondent No.2 could not have been appointed against the the posts occupied by them. Relying on the decision of the Hon'ble Supreme Court in the case of Chief Engineer and Secretary, Engineering Department, U.T. Chandigarh vs. Kamlesh Baboo, reported as 1993 (3) SCT 172, he argued that more eligibility does not given respondent No.2 a right to be promoted to the post of Executive Engineer. We find the aforestated contention of the learned counsel for the petitioner to be misconceived. The Regulation 4 clause (c) of 1985 Regulations relied upon by the learned counsel envisages appointment to the post of Executive Engineer on regular basis by transfer apart from promotion but cannot be read to mean that deputationists can be arbitrarily brought in by the petitioner-Chandigarh Administration at its whims and fancies to the detriment of departmental candidate's right to promotion. The recruitment by transfer on regular basis and deputation connotes two different things in service jurisprudence and cannot be equated. The reliance on the judgement of Hon'ble Supreme Court in the case of Kamlesh Baboo's case (supra) is also misconceived as the same is not applicable in CWP No.816-CAT of 2004 -6- the facts and circumstances of the present case. A bare perusal of the said case shows that Hon'ble Supreme Court found as a matter of fact that the case of the respondents therein was considered for promotion immediately as soon as they became eligible and respondents got their promotion at the earliest possible opportunity and was no way hindered by the presence of deputationists which is not the case in the present writ petition. Learned counsel for respondent No.2 has relied upon the case of Jai Ram Sharma vs. Jammu Development Authority, reported as JT 1996 (5) SC 369, wherein instead of promoting the appellant to the post of Public Relations Officer, a deputationist was considered and appointed, the Hon'ble Supreme Court held the action of the respondents to be illegal and an arm twist to nepotism. He has also relied upon the judgement of this Court in Union of India and others vs. Puranjit Singh and another, reported as 2008(3) SLR 832, wherein it was held that it is well settled that when a senior-most departmental employee is available then it would be wholly unwarranted to call another person on deputation unless there are any compelling reasons like the pendency of criminal or disciplinary proceedings against him and non consideration of such senior employee for promotion was held to be illegal and arbitrary. In the said case this Court upheld a similar order of the Tribunal granting retrospective notional promotion without arrears of pay (as in the present case) to the respondent therein w.e.f. 24.11.1997, when the vacancy had fallen vacant, though he was actually promoted only on 23.08.2001. We find that the present case is squarely covered by the decision of this Court in Puranjit Singh's case (supra). There is no error in the view taken by Tribunal warranting our interference under extra ordinary CWP No.816-CAT of 2004 -7- writ jurisdiction of this Court under Articles 226/227 of the Constitution of India. The writ petition is misconceived and the same is accordingly dismissed. (ASHUTOSH MOHUNTA) JUDGE February 4, 2009 (NIRMALJIT KAUR) Gulati JUDGE