IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CIVIL WRIT PETITION 1905 OF 2008 DATE OF DECISION : August01,2008 Union of India & others ....Petitioners Versus CAT & others ....Respondents CORAM: HON'BLE MR.JUSTICE PERMOD KOHLI HON'BLE MR.JUSTICE AJAY TEWARI Present: Mr.Aman Chaudhary, Advocate, for the petitioners Ajay Tewari, J This is a petition against the order dated 31-08-2007 passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal), Chandigarh, Bench allowing the application filed by respondent No.2 and directing petitioners herein to pay the arrears of salary and allowances to the said respondent. Respondent No.2 was selected as a Sepoy against Sports quota on 01-01-1996 .As per the Central Excise and Land Customs Department (Group 'C' Posts) Recruitment Rules, 1979, one channel of promotion to the post of Superintendent Grade-III was by way of holding Limited Departmental Competitive Test. In the test which was held, respondent No.2 qualified along with two other general category candidates. As per the stand of the petitioners, DPC was conducted and since only two promotion posts in the general category were available, respondent No.2 could not be appointed since he was at serial number 3 of merit. Respondent No.2 represented but vide order dated 28-03- 2005,he was informed that he could not be promoted due to lack of vacancy. --2-- Subsequently, another order was passed on 30-11-2005 again reiterating that at the relevant time, there was no vacancy in the general category and further that in the meantime, new recruitment Rules having come into force, all vacancies in the scale of Superintendent Grade-III were to be filled up through the Staff Selection Commission. In response to application made by respondent No.2 under the Right to Information Act, he was again informed by the order dated 22-02-2006 that in the year 2003, he could not be promoted for want of vacancy. The learned Tribunal went into the factual question of existence of vacancies prior to enforcement of the new Rules with effect from 26-10-2004 on the legal premise, that such vacancies, if any, would have to be filled up under the 1979 Rules (supra). The first factor which has been relied upon by the Tribunal was that there was no denial to the averments made in sub-para V of para IV of the application filed by respondent No.2 where he had averred as to the existence of 4 specific vacancies of Stenographers Grade-III which were existing in 2003. The Tribunal further noticed that in compliance with the judgement passed by the High Court of Andhra Pradesh, at least 9 posts of Stenographers Grade-III were vacant with effect from 06-12-2002 due to promotion of 9 incumbents from the posts of Stenographers Grade-III. Thus, the Tribunal gave a specific finding of fact that the stand of the petitioners that respondent No.2 could not be promoted for want of vacancy, was incorrect. Consequently, the learned Tribunal directed that respondent No.2 should be considered for regular promotion to the post of Stenographer Grade-III against the vacancies mentioned above by holding a review DPC and in case the said review DPC found that respondent No.2 was fit and suitable, he would be promoted from the due date along with consequential benefits like fixation of pay, seniority and arrears of pay and allowances. The petitioners were granted 3 months time to complete the said exercise. Thereafter, the petitioners filed miscellaneous application dated 07- --3-- 12-2007 wherein it was averred that in compliance with the orders of the Tribunal, the review DPC was held on 05-12-2007 and the said DPC having recommended the name of respondent No.2 vide order dated 06-12-2007, he has been appointed to officiate as Stenographer Grade-III and that he would be further entitled to seniority and fixation of pay on notional basis with effect from 25-06-2003. The petitioners prayed for grant of further period of 3 months for making payment of arrears and allowances. Thereafter, the present petition has been filed to challenge the award of payment of arrears and allowances alone. When the matter came up for motion hearing, the following order was passed:- “Learned counsel for the petitioners, inter alia, contends that respondent No.2 has been promoted against the post which became available on re-calculation of the posts in terms of the directions of the Andhra Pradesh High Court, therefore, the said respondent is not entitled to arrears of pay from the date two other posts of General Category were filled. Notice of motion for 25-04-2008. In the meantime, recovery of payment of arrears of salary shall remain stayed.” Today when the matter came up for hearing, learned counsel for the petitioners could not persuade us to interfere with the findings of fact regarding the existence of vacancies arrived at by the Tribunal . The Tribunal has specifically considered the issue regarding the directions passed by the Andhra Pradesh High Court in the impugned order. Apart from this, the Tribunal has also relied upon the fact that the specific averment made by respondent No.2 regarding the vacancies in sub-para (v) of para IV has not been denied in the corresponding paragraph of the written statement to hold that 4 vacancies , in fact, existed or the --4-- existence of other posts of Grade-III Stenographers at various stations. In this view of the matter, we find no reason to set aside the decision of the Tribunal. This petition is consequently dismissed without however, any costs. Sd/- sd/- [Permod Kohli] [Ajay Tewari] Judge Judge August 01,2008 MandeepKaur