i * IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On: 22"^ November. 2010 ludament Delivered On:29^^ November. 2010 + W.P.(C) 1724/2010 UOI & ANR. Petitioners Through: Mr.A.S.Chandhiok, ASG with Mr.Ritesh Kumar, Mr.Rajshree Mishra and Mr.A.K.Bhardwaj, Advocates versus ANAND KUMAR PANDEY & ORS. Respondents Through: Mr.Naresh Kaushik, Advocate with Ms.Amita Kalkal Chaudhary, Ms.Aditi Gupta and Mr.Aditya Vikram, Advocates CORAM: HON BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I. For orders, see W.P.(C) No.1188-90/2005. PRADEEP NANDRAJOG, J. November 29, 2010 mm / dk n ^ ^ SIDDHARTH MRIDUL, J. Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified * IN THE HIGH COURT OF DELHI AT NEW DELHI % tudament Reserved On: 22"" November. 2010 ludament Delivered On:29"^ November. 2010 + W.P.(C) 1188-90/2005 UOI & ORS. Petitioners Through: Mr.A.S.Chandhiok, ASG with Mr.Ritesh Kumar, Mr.Rajshree Mishra and Mr.A.K.Bhardwaj, Advocates versus VIJENDER SINGH & ORS. Respondents Through: Mr.Naresh Kaushik, Advocate with Ms.Amita Kaikal Chaudhary, Ms.Aditi Gupta and Mr.Aditya Vikram, Advocates W.P.fC) 1723/2010 UOI & ANR. Petitioners Through: Mr.A.S.Chandhiok, ASG with Mr.Ritesh Kumar, Mr.Rajshree Mishra and Mr.A.K.Bhardwaj, Advocates versus D.K.SHUKLA & ORS. Respondents Through: Mr.Naresh Kaushik, Advocate with Ms.Amita Kaikal Chaudhary, Ms.Aditi Gupta and Mr.Aditya Vikram, Advocates W.P.fC) 1724/2010 UOI & ANR. Petitioners Through: Mr.A.S.Chandhiok, ASG with Mr.Ritesh Kumar, Mr.Rajshree Mishra and Mr.A.K.Bhardwaj, Advocates versus W.P.(C) Nos.1188-90/2005 & Connected Matters Page 1 of Z1 ANAND KUMAR PANDEY & ORS. Respondents Through: Mr.Naresh Kaushik, Advocate with Ms.Annlta Kalkal Chaudhary^ Ms.Aditi Gupta and Mr.Adltya VIkram, Advocates W.P.(C) 1725/2010 UOI & ANR. Petitioners Through: Mr.A.S.Chandhiok, ASG with Mr.Ritesh Kumar, Mr.Rajshree Mishra and Mr.A.K.Bhardwaj, Advocates versus CPWD ENGINEER ASSOCIATION & ORS Respondents Through: Mr.Naresh Kaushik, Advocate with Ms.Amita Kalkal Chaudhary, Ms.Aditi Gupta and Mr.Adltya Vikram, Advocates W.P.fC) 1726/2010 UOI & ANR. Petitioners Through: Mr.A.S.Chandhiok, ASG with Mr.Ritesh Kumar, Mr.Rajshree Mishra and Mr.A.K.Bhardwaj, Advocates Vy versus A.K.SHARMA & ORS. Respondents Through: Mr.Naresh Kaushik, Advocate with Ms.Amita Kalkal Chaudhary, Ms.Aditi Gupta and Mr.Adltya Vikram, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAjOG HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? W.P.(C) Nos.1188-90/2005 & Connected Matters Page 2 of 21 / ^ 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I. 1. The above captioned 5 writ petitions are being decided by a common Judgment and order for the reason issue which arises for consideration in all the writ petitions Is identical. 2. Vide W.P.(C) No.1188-90/2005 order dated 13.5.2004 allowing OA No.2710/2003 is under challenge. Vide W.P.(C) No.1723/2010 and W.P.(C) No.1726/2010 the order ^ dated 14.7.2009 allowing OA No.2542/2008 and OA No.220/2009 is under challenge. Vide W.P.(C) No.1724/2010 the order dated 16.7.2009 allowing OA No.1847/2008 is under challenge. Vide W.P.(C) No.1725/2010 the order dated 12.5.2009 allowing OA No.1749/2008 is under challenge. 3. It may be noted that the orders dated 14.7.2009, 16.7.2009 and 25.12.2009 are simply following the reasoning of the order dated 13.5.2004 and thus we would be noting the relevant facts relatable to OA No.2710/2003; decision wherein is the subject matter of challenge vide W.P.(C) No.1188- 90/2005. 4. The claimants before the Tribunal i.e. the respondents in all the writ petitions were employed by way of direct recruitment as Junior Engineers under the Central Public Works Department (CPWD). The post available to them for promotion Is the post of Assistant Engineer and as per the notified Recruitment Rule requires to be filled up 50% by way of promotion from junior Engineers having regular service for 8 years; the norm for promotion in this quota is 'seniority subject to fitness'. The remaining 50% posts of Assistant Engineers have to be filled up by a 'Limited Departmental W.P.(C) Nos.1188-90/2005 8i Connected Matters Page 3 of 21 Competitive Examination' which can be taken by a Junior Engineer having 4 years' service. 5. For the years 1990-91, 1991-92 and 1992-93, on 20.12.1992 (somewhere date written is 23.12.1992) UPSC conducted the examination to fiii up 227 posts of Assistant Engineers (Civil) and 36 posts of Assistant Engineer (Electrical) pertaining to the 'Limited Departmental Competitive Examination' Quota. The result was declared in two stages. At the first stage 149 persons were declared successful to be V promoted as Assistant Engineer (Civil) and thereafter 78 persons were declared successful to be promoted as Assistant Engineer (Civil) and 36 as Assistant Engineer (Electrical). 0. Vacancies accrued both in the regular promotion quota as also in the quota for 'Limited Departmental Competitive Examination' for the year 1993-94 and onward till the year 1998-99. Whereas regular promotions were effected, no examination was held to fiii up the vacancies required to be filled up through the 'Limited Departmental Competitive Examination' till UPSC initiated the process in the year 1998 to conduct an exam. V 7. Fearing that UPSC may conduct the exam by clubbing ail the vacancies. Junior Engineers filed 2 Original Applications registered as OA No.2239/1998 and OA No.2526/1998 in which they stated that the proposed exam to be held, pertained to vacancies for the period 1.4.1993 till 31.3.1999 and that the examination was scheduled for 21.2.1999. It was urged that eligibility of 4 years' service as a Junior Engineer had to be applied for the year wise vacancy for otherwise it may happen that persons not eligible for the vacancies pertaining to the year 1.4.1993-31.3.1994 as also the subsequent years may be selected against the vacancy available for the year in question. It was prayed that W.P.(C) Nos.1188-90/2005 & Connected Matters ^ directions be issued to fiil up the vacancies from amongst the eligibie candidates pertaining to the vacancy year. Reievant would it be to note that in the 2 Original Applications no issue was raised pertaining to the vacancies which had been filled up for the year 1990-91, 1991-92 and 1992-93. 8. Vide order dated 15.2.1999 the Central Administrative Tribunal disposed of OA No.2239/1998 and OA No.2526/1998 observing that it was not possible to rule out that ineligible Junior Engineers may successfully clear the V examination if vacancies were not segregated, in para 13 of the decision it was observed as under:- "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 OAs deserves to be dismissed and we do so accordingly. However, to take care of some of the reasonable apprehensions to the applicants, it would be appropriate that while conducting the present selection and finalizing the process thereof, respondents 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 eligibie for the same: (ii)Existing rules for filling up the posts meant for reserved category candidates shall be adhered to as prescribed by the DoPT in its OM dated 2.7.97, while communicating vacancies of 391 JEs, respondents have only indicated that the percentage of reservation for SC/ST will be indicated only later on. Since reservation in promotion in such cases are to be ensured as per law laid down, respondents shall strictly follow instructions for maintaining the roster and running account register to look after the interests of backward classes. W.P.{C) Nos.1188-90/2005 & Connected Matters Page 5 of 21 (iii) 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 titled to unduly favour one of the two contending groups. (iv) We are also Inclined to agree with the respondents' submission that "present practice or keeping vacant slots for being filled up by direct recruitment of later years thereby giving them unintended seniority over promotes vyho are already In position could be dispensed with. The above precautions shall be taken before finalizing the present selection process or hand." 9. Relevant would It be to note that though In para 13 It has been observed that the Original Applications deserved to be dismissed and the Tribunal was so doing accordingly, observations were made that for the ensuing exam the department would take the four precautions set out In sub- para (I) to (Iv) of para 13. 10. Suffice would It be to state that the applicants before the Tribunal were Junior Engineers who were fairly senior as per the seniority list of Junior Engineers and they feared that their younger brotherin who had joined In the years 1993-94 and the year 1994-95 and by the year 1999 had acquired the requisite 4 years' experience as a Junior Engineer, If allowed to compete against all 336 vacancies of Assistant Engineer (Civil) and 89 vacancies of Assistant Engineer (Electrical), could succeed and this would be to the detriment of the Senior-Junior Engineers. 11. Needless to state If empanelment was done with reference to year wise vacancy. Junior Engineers inducted In the year 1993-94 would be eligible only for the vacancies pertaining to the year 1997-98 and the year 1998-99 and those who were inducted in the year 1994-95 would be eligible W.P.(C) Nos.1188-90/2005 & Connected Matters Page 6 of 21 to compete for the vacancies which had accrued in the year 1998-99. Like wise Junior Engineers inducted in the year 1992-93 would be eligible for the vacancies pertaining to the year 1996-97 and onwards; Junior Engineers inducted in the year 1991-92 would be eligible for the vacancies pertaining to the year 1995-96 and onwards; Junior Engineers inducted in the year 1990-91 would be eligible for the vacancies pertaining to the year 1994-95 and onwards and all Junior Engineers inducted up till the year 1989-90 would be eligible f for all the vacancies. 12. Observation vide sub-para (iv), though not germane to the controversy which was raised before the Tribunal, finds a reflection probably for the reason the Tribunal had in its mind the seniority to be assigned to those who would be promoted as Assistant Engineer through the 'Limited Departmental Competitive Examination' vis-^-vis those who had earned regular promotions based upon seniority subject to fitness requiring ratio 1:1 to be maintained between the two groups for the obvious reason each had the quota 50%. 13. Happily, the examination was held and result ^ declared in two stages and the posts on the civil and electrical side were filled up. It be noted that the department filled up the posts which had fallen vacant with reference to year wise eligibility of candidates and in relation to the posts which had fallen vacant in the year in question. 14. Respondents of W.P.(C) No.1188-90/2005 Sh.Vijender Singh and others filed a representation that seniority be assigned to the Junior Engineers who were promoted as Assistant Engineers under the 'Limited Departmental Competitive Examination' Quota vis-^-vis those who had been promoted under the 50% quota assigned to seniority-cum-merit in the ratio 1:1 with reference to the W.P.{C) Nos.1188-90/2005 & Connected Matters Page 7 of 21 vacancy year when the posts fell vacant In the two quotas. A seniority list was finalized on 4.6.2002 pertaining to Assistant Engineer (Civil) and it is not in dispute that the seniority was assigned to Assistant Engineer (Civil) who had come up the ladder through the channel of promotion 'seniority subject to fitness' and the channel of promotion through 'Limited Departmental Competitive Examination' in the ratio 1:1 by rotating the vacancies in the quota 50:50. To highlight we may note that Vijender Singh who cleared the examination pertaining to 'Limited Departmental Competitive Examination' in the year 2001 has been shown at serial No.2813 and has been placed between Sh.H.K.Mitra at serial No.2812 and Sh.D.K.Chowdhury at serial No.2814 who earned promotion in the quota 'seniority subject to fitness' on 5.1.1995. Thus, though not by way of a mandate but being the precautions required to be taken by the department and as cautioned by the Tribunal vide its decision dated 15.2.1999 disposing of OA No.2239/1998 and OA No.2526/1998, the department did the needful. 15. Vijender and many others like him who earned promotion through the quota of 'Limited Departmental Competitive Examination' started raising the issue that not only seniority, they should be given all other benefits of notional promotion with effect from the year vacancies accrued in their quota and not from the date they were actually promoted. In other words they demanded to be placed in the pay scale of an Assistant Engineer from a retrospective date and also wanting their qualified service as an Assistant Engineer to be reckoned retrospectively for purposes of their eligibility for promotion to the next higher post i.e the post of Executive Engineer. The department declined the claim and this led to further litigation when W.P.(C) Nos.1188-90/2005 8i Connected Matters Page 8 of 21 ^2. Vijender and others filed OA No.2710/2003 challenging the order dated 4.9.2003 whereunder the department rejected their claim. They prayed:- "a) allow this Original Application b) quash the impugned seniority list dated 4.6.2002; c) quash the order No.29/7/2002-EC-lll dated 4.9.2003 and allow notional seniority to the applicants from the dates and years when vacancies arose with ail consequential benefits; d) direct the Respondents to allow seniority to the applicants w.e.f. the dates and the years in which vacancies against which the applicant have been appointed were available and against which the applicants are shown to have been appointed vide the order dated 16.2.2001. e) and pass such other or further orders which this Tribunal may deem fit and proper in the facts and circumstance of the case may also be passed in favour of the applicant." 16. Suffice would it be to state, as conceded to by learned counsel for the respondents at the bar during arguments, that the prayers made by Vijender and others are inartistically drafted and do not bring out the real relief they were desiring. As noted by us hereinabove, seniority has been assigned to the persons who were promoted under the 50% 'Limited Departmental Competitive Examination' by interspacing the same on the ratio 1:1 with their brotherin who were promoted under the 50% 'seniority subject to fitness quota' and thus seniority was not in issue. What they were claiming were benefits of eligibility in service for further promotion to the post of Executive Engineer as also the salary. 17. They pleaded that but for the department's inaction in not conducting a timely examination they could have W.P.(C) Nos.1188-90/2005 8i Connected Matters Page 9 of 21 earned promotion In the year of the vacancy and would have then earned salary In the scale applicable to the post of Assistant Engineer and further would have acquired requisite eligibility to serve as an Assistant Engineer for being promoted as an Executive Engineer. 18. The claim was opposed by pleading that seniority was rightly assigned and In effect for the purposes of seniority a deemed retrospective promotion was given, but for salary and eligibility for further promotion It was urged that salary could not be paid on the principle of no salary for not shouldering the higher responsibilities of the promotional post and no eligibility for promotion till actual work experience was gained. 19. The Tribunal has held In favour of Vljender and others by holding that the only rational and logical Interpretation to the 4 precautions required to be taken as per para 13 of the Tribunal's order dated 15.2.1999 disposing of OA No.2239/1998 and OA No.2526/1998 was that year wise panels had to be drawn and seniority to relate back on notional basis to the date of the year In which persons earned promotion with all consequential benefits. The Tribunal also noted that Executive Engineers were given such benefit. 20. As noted herelnabove, other persons filed Original Applications which were also allowed and in respect whereof 4 other captloned writ petitions have been filed In the year 2010 questioning the subsequent orders passed by the Tribunal, which we note are simply following the order dated 13.5.2004 allowing OA No.2710/2003 by Vljender Singh and others. 21. Pertaining to the parity drawn by the Tribunal with respect to similar benefit granted to the Executive Engineers, we note that the department was compelled to grant benefit to the Executive Engineers expressly stating In the order that W.P.(C) Nos.1188-90/2005 & Connected Matters Page 1° 21 the benefit granted was subject to a writ petition which the department was proposing to file questioning the decision by the Tribunal in favour of the Executive Engineers and admittedly a writ petition has been filed in this Court being W.P.(C) No.7346/2007. Thus said act of the department could not be treated as a precedent to create a right and to this extent we disagree with this line of reasoning. 22. We need to pen a word for the benefit of the department CPWD as also all other government departments. We are finding a belated challenge to directions issued by the Tribunal and as a result when contempt petitions are filed before the Tribunal requiring compliance with the directions issued by the Tribunal, the departments are compelled to implement the decisions of the Tribunal but making the same expressly subject to any orders which may be passed in writ petitions. Indeed, we find same thing happening in the instant writ petitions and as a result what has happened is that subject to orders which may be passed in the writ petitions, the respondents have been paid wages by treating them in the scale of Assistant Engineer from the retrospective date when vacancy accrued and not from the date of actual promotion. We hope that the government departments would act fast and quick realizing that in an electronic age things move with the speed of light and not with the speed at which a bullock cart moves. 23. Reverting back to the issue at hand, suffice would it be to state that the only issue which we need to decide is whether the claimants before the Tribunal were entitled to be placed in the pay scale of an Assistant Engineer and earned benefit with retrospective date, being when the vacancy accrued, or from the date of actual promotion and further whether for purposes of qualifying service required as an W.P.(C) Nos.1188-90/2005 & Connected Matters Page 11 of 21 eligibility service for further promotion said benefit of having served as an Assistant Engineer with effect from a retrospective date has to be granted. 24. Pertaining to the issue of quaiifying service we find no pieadings as to how do the departmentai ruies define qualifying or reguiar service and thus we feei that in the absence of properiy constituted pieadings it wouid be impermissibie for us to adjudicate upon the issue, and like wise on account of iack of pleadings even the Tribunal should have refrained from adjudicating on the issue. We may highlight one thing here and which we have been lamenting repeatedly; not clearly written decisions being penned by the Tribunal and in particular by a particular Bench, a Member whereof is the author of the impugned decision dated 13.5.2004. It has been observed in para 11 that the promotion is to be deemed on notional basis from the date they (the claimants before the Tribunal) have been found eligible on acquirement of eligibility and passing of the LDCE. It is through the use of this expression that the Tribunal has granted relief. We do not find any discussion by the Tribunal with reference to the case law on the subject. Ignoring that for purposes of seniority benefit of posts falling in the respective quota have been rotated 1:1 has been granted and thus seniority was not a matter in issue and what was in issue was back wages and acquiring eligibility for further promotion, without highlighting said aspect, the Tribunal has penned the decision. 25. As noted by us hereinabove in para 16 above, learned counsel for the parties conceded that the issue was of the claimants before the Tribunal being placed in the pay scale of an Assistant Engineer from the date when the vacancy arose and to be paid wages accordingly and not from the date W.P.(C) Nos.1188-90/2005 8i Connected Matters Page ^ of actual promotion and further acquisition of service in the grade for purposes of further promotion. 26. Since learned counsel, as usual, had used the fire power of precedents we reflect upon the decisions cited to determine whether we can find a rule of Law which helps us in adjudicating the issue we are deciding. 27. We deal firstly with the decisions reiied up by Sh.Amarjit Singh Chandhiok, iearned Additional Solicitor General who argued the writ petitions on behalf of the petitioners. ; 28. The first decision cited is reported as Union of India & Ors. vs. K.K.Vadera & Ors. 1989 Supp (2) SCC 625. The protagonists were the respondents who were holding the post of Junior Scientific Officers (Group 'B' posts) in the Defence Research & Development Service. They had earned promotion to the said post as and when one feil vacant. The promotion order stipulated that they would be promoted to the posts of Scientists 'B' with effect from October 16, 1985 or from the date they would actually assume charge of the post to which they were promoted. The respondents filed an application before the Central Administrative Tribunal, Allahabad, claiming that they should have been promoted to the post of Scientists 'B' with effect from July 1, 1984. The Tribunal rejected the prayer of the respondents that their promotions should have been made with effect from July 1, 1984 but directed that their promotions should be with effect from the date on which the promotional posts were created. The Supreme Court was deciding the Appeal against the view taken by the Tribunal. Allowing the Appeal the Supreme Court observed in para 5 as unden- W.P.(C) Nos.1188-90/2005 & Connected Matters Page 13 of 21 "5 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 fails vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such 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." 29. Relevant would it be to note that as per the decision there was no rule which was cited before the Court as per which promotion to the post had to be with retrospective effect I.e. from the date the post fell vacant. The observations of the Supreme Court that We do not know of any law' would mean that service jurisprudence does not jurisprudentlaiiy recognize retrospective promotions. The decision would therefore mean that unless a specific rule exists evidencing to the contrary, promotions take effect from the date the person is actually promoted and not retrospectively. 30. The second decision relied upon is reported as Baij Nath Sharma vs. Hon'ble Raiasthan Hiah Court At iodhour & Anr. (1998) 7 SCC 44. The appellant, who was a member of the Rajasthan Judicial Service (for short 'RJS'), was aggrieved by the judgment dated 17.09.1997 of the Division Bench of the Rajasthan High Court dismissing writ petition (CWP No. 3455/97), wherein he had prayed that his case for promotion to the Rajasthan Higher judicial Service (for short 'RHjS') be considered from the date when the posts in the RHjS fell vacant. No statutory rule was shown which could have helped the appellant.