THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION No.15053 of 2009 ORDER: (Per GMJ) This writ petition is filed challenging order dated 07.11.2008 passed by the Central Administrative Tribunal, Hyderabad (for short ‘the Tribunal’) allowing O.A.No.668 of 2007 filed by fifth respondent herein. 2. O.A.No.668 of 2007 was filed by fifth respondent herein seeking the following reliefs:- (a) to call for the records leading upto and including the order ANo.C-4866/PF (PVSD GK Murthy) dated 11.12.2006 together with letter No.SM/04/016/88, dated 19.06.1992 and to quash the same by declaring them as wholly illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution; (b) direct restoration of the seniority of the applicant in the gradation list as originally fixed in the ratio of 3:1 by rotation of vacancies as per 25% quota reserved for LDCE promotees; (c) direct conducting of review DPCs for the year 2004, 2005 and 2006 for considering the case of the applicant for promotion to the grade of Assistant/Head Clerk after recasting the gradation list duly restoring the applicant’s original position with all consequential and attendant benefits; and pass such other order or orders as the case may be deemed fit and proper in the circumstances of the case. 3. The case of the petitioner Nos.1 to 10 is that they were initially appointed as LDCs on 29.12.1982, 03.01.1983, 27.05.1985, 29.05.1985, 19.07.1985, 30.07.1985, 01.11.1985, 09.12.1985, 10.02.1986 and 14.05.1986 respectively, by direct recruitment through Staff Selection Commission (SSC). As per the recruitment Rules, next promotions to the posts of UDCs and Assistants etc., have to be filled by 75% of the employees on seniority-cum-suitability by holding DPCs and 25% by holding Limited Departmental Competitive Examinations (LDCEs). In other words, the promotions to the posts of UDCs and Assistants etc., have to be filled in the ratio of 3:1 by the employees on the basis of seniority-cum-suitability by holding DPCs and by holding LDCEs respectively. That fifth respondent was appointed as LDC on 12.01.1989 and thus, he is much junior to the petitioners in the cadre of LDC. When 154 posts of UDCs have arisen due to the orders of cadre restructure issued by the Government of India, out of which, 115 posts were earmarked for DPC quota of 75% and 39 for LDCE quota of 25%, the petitioners were promoted to the posts of UDCs in September, 1996. LDCE notification was issued on 16.08.1996 and the results of the said exam were declared on 14.03.1997. Fifth respondent was promoted on 07.04.1997 as against the said LDCE 25% quota and therefore, he is junior to the petitioners. Thereafter the seniority list of UDCs as on 01.01.1999 was issued fixing the inter se seniority in the ratio of 3:1. Subsequently the said seniority list had been corrected and revised seniority list was issued as on 01.01.2002. In the said seniority list, all the UDCs promoted in 1996 on seniority-cum- suitability shown above UDCs promoted in 1997 through LDCE, except fifth respondent, which was only a clerical error. In the seniority list issued as on 01.01.2004, this error was also rectified. The recruitment rules prescribe only 3:1 ratio for promotion on seniority- cum-suitability and through LDCE respectively. Rotation of vacancies for the purpose of fixation of seniority among them was not prescribed. In the absence of rules governing fixation of seniority, the general principles of seniority alone have to be followed and accordingly, the guidelines were issued in first respondent’s letter dated 19.06.1992. As per the said guidelines, the seniority list of 2004 was prepared. Fifth respondent filed O.A.No.929 of 2004 aggrieved by his position in the seniority list issued on 09.08.2004. The said O.A. was disposed of directing first respondent to take expeditious decision in the matter since the issue was pending with it. Thereafter first respondent clarified that the guidelines issued in its letter dated 19.06.1992 only have to be followed in the matter of fixation of seniority among DPC promotees and LDCE promotees, vide its letter dated 04.03.2005. Aggrieved by the said letter and also the seniority list of 2004, fifth respondent again filed O.A.No.935 of 2005, which was disposed of on 10.10.2006, but the reliefs prayed by fifth respondent was not granted. The judgment became final as he did not challenge the said finding of the Tribunal in any higher forum. Apart from that, in both the O.As. filed by him earlier, he did not challenge first respondent’s letter dated 19.06.1992, which was upheld by the Tribunal in O.A.No.935 of 2005. In the absence of statutory rules, the seniority has to be fixed on the basis of the regular date of promotions and continuous length of service in the cadre. Fifth respondent again filed the present O.A.No.668 of 2007 challenging the letter dated 11.12.2006 which did not give him cause of action or right to question the seniority list dated 01.01.2004 which had already become final after the disposal of O.A.No.935 of 2005 on 10.10.2006. He has also included the letter dated 19.06.1992 in the challenge which was also upheld in earlier O.A.No.935 of 2005. Therefore, the O.A.No.668 of 2007 ought to have been dismissed as it is not maintainable. However, the Tribunal went into the issues already decided earlier and allowed the O.A., vide its order dated 07.11.2008 illegally and arbitrarily. The main issue in the O.A. is the validity of the seniority list dated 01.01.2004, but the same was not challenged. In the absence of challenge to the said seniority list of UDCs and also due to non-joinder of necessary parties, the O.A. was liable to be dismissed in limini. It was open to fifth respondent to challenge the letter dated 19.06.1992 in his earlier O.As.Nos.929 of 2004 and 935 of 2005, but he remained silent. The seniority which was settled long ago i.e., in 2002 itself cannot be unsettled at the instance of fifth respondent only. The Tribunal erred in setting aside the letter dated 19.06.1992 issued by first respondent which was issued in conformity with the judgment of the Division Bench of the Karnataka High Court rendered in V.T. Rajendran vs. Union of India [W.P.No.165 of 1979]. The said judgment was confirmed by the Hon’ble Supreme Court as the S.L.P. filed was dismissed. That it is not open to the Tribunal to declare the letter dated 19.06.1992 as illegal in view of the aforestated circumstances and the law governing the field. Even otherwise, the order of the Tribunal setting aside the letter dated 19.06.1992 will have prospective effect unless it is specifically declared as illegal and set aside with retrospective effect. As such, the fact that seniority of UDCs has become cannot be unsettled. It is relevant to note that the seniority list of 2004 was not set aside. The petitioner Nos.1 to 10 have been promoted as Assistants on different dates. Fifth respondent was also promoted as Assistant on 07.10.2008 and was posted to Jarkhand GDC, Ranchi. But, he declined the said promotion for his own reasons and as such he will not be entitled to claim the said promotion for a period of one year from 07.11.2008 when he declined it. As such, even as per the directions of the CAT if his seniority is revised also, he cannot be promoted as Assistant till 07.11.2009. Therefore, the impugned order is liable to be set aside and the O.A.No.668 of 2007 was liable to be dismissed. The findings of the Tribunal are perverse and it is not open to fifth respondent to challenge the orders impugned in the O.A.No.668 of 2007 once the issue of seniority of UDCs had already been settled and upheld in the earlier legal proceedings. The Tribunal ought to have noticed that non- joinder of necessary parties is deliberate and intentional and on that ground alone, the O.A.No.668 of 2007 ought not to have been dismissed. 4. Respondent Nos.1 to 4 filed counter-affidavit stating that the petitioners suppressed O.M. dated 10.06.2009 issued by first respondent in implementing the judgment dated 07.11.2008 passed by the Tribunal in O.A.No.668 of 2007. The petitioners have also suppressed another order on the same subject passed by the Tribunal dated 04.12.2008 in O.A.No.4 of 2008 (filed by respondent Nos.6 and 7 herein) answering the points relating to objections regarding non- joinder of the employees, who are going to be affected in case the seniority list is revised. Fifth respondent filed the present O.A. seeking restoration of his seniority originally fixed in the ratio of 3:1 by restoration of vacancies as per 25% quota reserved for LDCE promotees and consequently sought a direction to consider his case for promotion with all consequential benefits. Therefore, question of impleading necessary parties does not arise at all. The Tribunal accepted the contentions of the applicant and allowed the O.A. and quashed letter dated 19.02.1992 issued by the Department of Science & Technology letter following the decision of the Apex Court in A.K. Subraman’s case. It is stated that the Government implemented the above said judgment dated 07.11.2008 by issuing reasoned order in official memorandum dated 10.06.2009 in not only revising the seniority of fifth respondent as directed by the Tribunal but also taken a decision to revise the seniority list of UDCs of 1997 batch by following the quota rule of 3:1 amongst DPC and LDCE promotees and conducting review DPCs for relevant recruitment years. It is submitted that the petitioners in the present petition indirectly attempted restoration of Department of Science & Technology’s letter dated 19.06.1992 which stands superseded with the issue of official memorandum dated 10.06.2009. The petitioners have also not challenged Department of Science & Technology’s letter dated 15.06.2009 issued towards implementation of similar order dated 04.12.2008 passed by the Tribunal in O.A.No.4 of 2006 filed by respondent Nos.6 and 7. It is stated that as per Survey of India Circular Order (CO) No.437 (Administrative), the method of promotion from LDC to UDC in Survey of India is only by way of promotion to an extent of 75% on the basis of seniority-cum-fitness by way of DPC and the remaining 25% by way of conducting LDCE. In 1996, there were 115 vacancies of UDCs to be filled through DPC and 39 vacancies to be filled through LDCE. That DPC meeting and the LDCE for these vacancies were conducted in the same year 1996. However, the result of LDCE was declared in 1997. The seniority of DPC and LDCE promotees against the vacancies of 1996 was fixed by rotation of vacancies in the ratio of 3:1. The petitioners were considered for promotion by DPC and fifth respondent was considered for promotion by LDCE. In 1999, a gradation list was prepared by following the rotation of vacancies in the ratio of 3:1 i.e., three DPC promotees and one LDCE promotee. Thereafter, further DPC and the LDCE were held in respect of vacancies of subsequent years and gradation lists were prepared as on 01.01.2000 and 01.01.2001 following the rotation of vacancies in the ratio of 3:1. It is submitted that one Venugopal Nair, a DPC promotee of 1996 batch challenged the Gradation List by filing O.A.No.1651 of 2001 contending that the preparation of gradation list adopting the ratio of 3:1 on rotation basis is not correct and that all the DPC promotees of 1996 batch who were promoted and appointed in 1996 itself shall en bloc be placed above LDCE promotee of 1996 batch who were promoted and appointed in April, 1997 and that the gradation lists are to be revised accordingly. That in the year 2002, the said gradation list was revised and all the DPC promotees of each batch were placed en bloc above the LDCE promotees of each year. While revising the gradation list, fifth respondent was not disturbed. When the seniority of UDCs of 1996 batch was altered by bringing all the LDCE promotees of 1996 en bloc down below the last DPC promotees of 1996, the above said O.A.No.1651 of 2001 was pending. The revised seniority list of UDCs placing all the DPC promotees en bloc above LDCE promotee was contrary to the stand taken in reply filed in O.A.No.1651 of 2001. It is submitted that the Tribunal dismissed O.A.No.1651 of 2001 upholding seniority list of UDCs as on 01.01.1999 wherein seniority of DPC and LDCE promotees was fixed in ratio of 3:1. The R.A.No.36 of 2004 filed by Venugopal Nair was also dismissed on 09.06.2004. The said judgment was not given effect to and the seniority of the LDCE promotees continued to be placed down below the DPC promotees. Later on, another revised gradation list as on 01.01.2004 was issued under SOI letter dated 09.08.2004 and fifth respondent was brought down below all the DPC promotees of that year. Fifth respondent approached the Tribunal by filing O.A.No.929 of 2004 challenging the revised gradation list as on 01.01.2004 issued under letter dated 09.08.2004 and seeking to quash the same and to restore the seniority list prepared in the year 1999 by following the rotation of vacancies in the ratio of 3:1. The Tribunal without going into the merits of rival contentions, considered it appropriate to dispose of the O.A.No.929 of 2004 on 16.12.2004 with a direction to Department of Science & Technology to take expeditious decision in the matter and issue necessary clarification. The Department of Science and Technology issued a clarification letter dated 04.03.2005 clarifying that seniority of UDCs cannot be fixed in the ratio of 3:1 and that the seniority of UDCs shall continue to be fixed as per guidelines issued, vide office letter dated 19.06.1992. Thereafter fifth respondent filed O.A.No.935 of 2005 and sought to quash the said clarification letter dated 04.03.2005 and for a direction to restore his seniority as originally fixed in the ratio of 3:1 by rotation of vacancies as per 25% quota reserved for LDCE promotees. Fifth respondent applied to DoPT for information under Right to Information Act regarding rules/guidelines for fixation of inter- se seniority of UDCs in the Central Government offices promoted from LDC to UDC against the vacancies of a year by DPC and LDCE by letter dated 29.03.2006 and the DoPT gave reply on 18.04.2006 informing that where different methods of promotion have been prescribed in the recruitment rules specified quotas for each such method, the relative seniority of such promotees viz. DPC promotees and LDCE promotees is to be determined by applying the principle of rotation of quota of vacancies earmarked in the recruitment rules of each method. The Tribunal by order dated 10.10.2006 disposed of O.A.No.935 of 2005 to consider the observations in para 9 and to inform fifth respondent within three months. In compliance of the same, Government passed an order dated 11.12.2006 reiterating its stand that seniority fixed, vide letter dated 09.08.2004, is in order. Rule 6 of O.M. dated 22.12.1999 cannot be made applicable to fifth respondent. Aggrieved by the same, fifth respondent filed O.A.No.668 of 2007 to quash letters dated 11.12.2006 and 19.06.1992. The Tribunal by judgment dated 07.11.2008 allowed the O.A. quashing the letter dated 19.06.1992 following the Apex Court judgment in A.K. Subraman’s case and directing restoration of the seniority of fifth respondent in the gradation list as originally fixed in the ratio of 3:1 by rotation of vacancies as per 25% quota reserved for. In 1979, one V.T. Rajendran, a DPC promotee of 1966, filed W.P.No.165 of 1979 before the Single Judge of High Court of Karnataka. The said writ petition was contested contending that the quota rule is being followed not only at the time of initial appointment but also at the time of confirmation. The High Court of Karnataka by judgment dated 20.11.1981 in W.P.No.165 of 1979 issued a writ of Mandamus to the respondents therein to re-examine the claims of petitioner and other eligible officers for confirmation strictly on the basis of seniority from the date of their appointments and make confirmation on that basis and redraw a fresh gradation list in accordance with law. Mr. V.T. Rajendran had no grievance regarding following the roster for filling up the vacancies at the ratio of 3:1 among DPC promotees and LDCE promotees. In other words, he had no grievance for applying quota rule at the time of initial appointment and his grievance was only about the following the quota rule even at the time of confirmation. He contended that the relative seniority in the cadre of UDC should have been the only guiding principle followed while making confirmations and it was impermissible to apply the quota rule at the time of confirmation. That controversy concerned and decided vide order dated 20.11.1981 in W.P.No.165 of 1979 (V.T. Rajendran) by the Karnataka High Court was only whether Government was justified in not making its orders that quota rule cannot be applied at the stage of confirmation, retrospective. The point whether quota rule can be applied at the stage of initial appointment by following the roster and fix the seniority of the promotees from both the sources of that particular year batch on the basis of that roster did not fall for consideration in that writ petition, as the writ petitioner therein had no grievance regarding the said point and his grievance was only limited to applying the quota rule at the stage of confirmation. Said orders of the learned Single Judge directing Union of India to apply its orders filed along with the reply therein to past cases also and to redraw the seniority list prepared on the basis of applying quota rule at both stages, initial appointment and at the time of confirmation, was challenged by the Union of India before the Division Bench of the Karnataka High Court in W.P.No.1210 of 1982 stating that the learned Single Judge impliedly referred to a memorandum, dated 24.02.1981 and in the said memorandum it was categorically stated that those instructions will not, however, apply to posts/services where specific quotas have been prescribed for substantive appointment of promotees/direct recruits/departmental candidates etc. Sri V.T. Rajendran was made first respondent in that the writ appeal and he filed statement of objections. In those objections it was stated that the department wants to apply the quota not only at the time of promotion as well as at the time of confirmation. So, in the writ appeal also, the point that arose for consideration was only whether quota rule cannot be made applicable while making the confirmation in respect of the cases already decided prior to 24.02.1981. That the above decision of the Single Judge challenged by Union of India and others in the High Court of Karnataka, Bangalore vide W.A.No.1210 of 1982 was dismissed by the Division Bench of the Karnataka High Court, vide judgment dated 13.09.1984. The Karnataka High Court only decided that the confirmation of LDCE promotees is to be reckoned from date of appointment in grade of UDC. In V.T. Rajendran’s case, the quota of rotation rules were applied irrespective of the fact whether the persons were available to fill up the LDCE quota at the time of initial appointment and they have applied quota rule at the time of confirmation and such action of the respondents is against the principles laid down by the Supreme Court in A.K. Subraman’s case which position was reiterated in P.S.Mahal vs. Union of India[1]. Therefore, the legal opinion was very clear that the Karnataka High Court did not direct the official respondents not to apply quota rule even at the stage of initial appointment by way of promotion and it only directed not to apply the quota rule again at the stage of confirmation. The issue involved in W.P.No.165 of 1979 filed by V.T. Rajendran’s case decided by the Karnataka High Court which was upheld by the Apex Court was only whether Government was justified in not making its orders that quota rule cannot be applied at the stage of confirmation, retrospective. The point whether quota rule can be applied at the stage of initial appointment by following the roster and fix the seniority of the promotees from both the sources of that particular year batch on the basis of that roster did not fall for consideration in that writ petition, as the writ petitioner therein had no grievance regarding the said point and his grievance was only limited to applying the quota rule at the stage of confirmation. Therefore, the judgment of the Karnataka High Court cannot be interpreted in a manner that quota rule cannot be applied while fixing inter se seniority among DPC promotees and LDCE promotees of a particular year batch even at the stage of initial appointment taking the year as a batch because such interpretation runs contra to the law laid down by the Apex Court in A.K. Subraman’s case (AIR 1975 SC 483). That the facts of V.T. Rajendran’s case were not similar to facts of case in O.A.No.668 of 2007 filed by fifth respondent. That the judgment dated 20.11.1981 in V.T. Rajendran’s case read with legal opinion dated 17.10.1984 given by Branch Secretariat of Department of Legal Affairs at Bangalore proves that there was no direction in V.T. Rajendran’s case to scrap the quota rule of filling up of 25% vacancies through LDCE and there was no direction to the fact that ratio of 3:1 while fixing the seniority between these two channels to be waived and it was not even the subject matter in that case. That earlier, in the year 1975, two DPC promotees filed W.P.No.5515 of 1975 before this Court seeking direction to re-fix their seniority and other similarly promoted UDCs on the basis of seniority-cum-fitness vis-à-vis UDC promoted on the basis of LDCE with reference to their actual date of appointment to the category of unfilled quota from year to year and also to revise the confirmations of all UDCs. The learned Single Judge dismissed the writ petition on 01.07.1977. The Survey of India continued to apply quota rule both at the time of initial appointment and also at the time of confirmation. Further, as seen from Central Secretariat Clerical Services Rules 1962 corrected up to July, 1996 members of the Lower division grade selected on the results of LDCE held by SSC shall be placed in the year of their merit and that persons of the two categories are to be included in the Select List by taking alternatively three persons from DPC promotion category and one person LDCE category and so on in that order. Further, the said rules are being followed for the purpose of fixing inter se seniority among the promotees to UDCs in the Election Commission, in the Railway Board and in the Army Headquarters. All the departments are following the quota rule at the stage of initial appointment and fixing their inter se seniority taking the year as basis, obviously in tune with the law laid down by the Hon’ble Apex Court in A.K. Subraman’s case. All other Central Government Departments including DoP&T which is the nodal department are following the Central Rules amended upto 1996. In order to maintain uniformity General Rules are to be followed by respondents in the absence of specific provision in the Recruitment Rules applicable to UDCs in Survey of India. Further, admittedly SOI is following General Rules for preparation of inter se seniority among DPC promotees and LDCE promotees in support of other categories of posts in Survey of India. There is no justification to adopt different procedure in the case of UDCs. In the light of the above findings of the Tribunal, the Department of Science and Technology after careful examination found that it erroneously revised the seniority of LDCE promotees. Hence, taken a decision to implement the judgment dated 07.11.2008 in O.A.No.668 of 2007. Accordingly, issued O.M. dated 10.06.2009 and that the instructions had been given to the Survey of India, vide Department of Science and Technology letter dated 15.06.2009 that directions given by the Tribunal, Hyderabad Bench vide its judgment dated 04.12.2008 in O.A.No.4 of 2006 (Sri M.N. Rajendran & Smt. P.K. Prathibha vs. Union of India and others) may