* + $-36. IN THE HIGH COURT OF DELHI AT NEW DELHI w.P.(c) 5470t2011 KRISHNA CHHIKARA AND ORS. ..... Petitioners Through Mr. Vinay Kumar Garg & Mr. F azal Ahmad. Advocates. VETSUS MCD AND ORS. ..... Respondents Through Mr. Naresh Kaushik, Advocate for UPSC. Mr. Shanker Raju, Advocate for MCD. CORAM: HON'BLE THE CHIEF JUSTICE II HON'BLE MR. JUSTICE SANJIV KHANNA ORDER 02.08.2011 Heard .Mr. Vinay Kumar Garg, learned counsel for the petitioners, Mr. Naresh Kaushik, learned counsel for the respondent-UPSC and Mr. Shanker Raju, learned counsel for the MCD. 2. A Division Bench of the Central Administrative Tribunal their order dated 16th July, 2009 in T.A. No. 154t2oog R ParagraPh 34 stated thus: "34. Seen from any angle as discussed above, we can come to only one conclusion that the regular promotion granted to respondent Nos. 3 and 4 as DEO (Physical) is not sustainable in law. The same is accordingly quashed and set aside." 3. After stating the same, the Division Bench noticed judgment passed in T.A. Nos. 11512009 and 11612009 and referred the matter to a larger Bench after formulating two % tn in Digitally Signed By:AMULYA Signature Not Verified t questions. 4. The Full Bench on 15th September, 2010 passed the following order: "3. Even though the .matter has been referred to the larger Bench, but we find that the learned Division Bench has expressed final opinion on the controversy. We may make a mention of some of the pertinent findings of the learned Division Bench, thus: "29. lt is thus clear that resolution dated 31.10.2007 could not have been given effect to unless it was approved by the Central Government and published in the Gazette. 30. The position thus is, that there were only one RR for the Post of DEO issued in 1976 which has already been quoted above. According to these RRs for the post of DEO, onlY AEO. were eligible and not AEO (Physical) or other streams. Respondents have admitted that no RRs for the Post of . DEO (Physical) have yet been notified. In theie circumstances it is absolutely. clear that respondent Nos. 3 and 4 could not have been Promoted as DEO (Physical). Official Respondents and UPSC both have already admitted their mistake and have stated that respondents No. 3 and 4 could not. have been promoted as DEO (Physical). They have also stated that they are processing the case to review the DPC in terms of the notified RRs. ln this view of the matter we have no hesitation in holding that the promotion of respondent Nos. 3 and 4 as DEO (Physical) are not sustainable in law. i 9 >(' 31. Counsel for the resPondent No. 3 strenuously argued that even if as per the notified RRs, the feeder post was AEO but officers from all the streams of AEO would be eligible to be considered for DEO so long theY fulfilled the eligibility by way of direct recruitment. This argument is recorded, onlY for being rejected because at the level of AEOs there are separate RRs for all the 4 streams and AEO has no suffix while other AEOs have the suffix like Physical, Nursery and Science, therefore, it has to be understood that onlY AEOs were eligible to be considered for the post of . DEO as per the notified RRs. Moreover, if they were already eligible as per the RRs, there was no need to pass the resolution." "34. Seen from any angle as discussed above, we can come to onlY one conclusion that the regular promotion granted to respondent Nos- 3 and 4 as DEO (PhYsical) is "not sustainable in law. The same is accordingly quashed and set aside." .The findings as reproduced above have been given after reproducing the relevant rules and the resolution dated 31.1-1997 - As regards other defences projected by the respondents also, final opinion has been expressed. 4. What may clearlY emerge from the findings or observations, as the case may be, as reproduced above, is that the learned Division Bench has given a final expressioq of opinion as regards the controversy subject matter of questions framed by it for \4 I answering by the Full Bench. Even though, a final decision has been taken, and so much so, promotion of the 3'd respondent' has been quashed, the matter has yet been referred to the larger Bench for the only reason that a co-ordinate Bench of this Tribunal in TA Nos. 11512009 and 11612009 vide order dated 6.5.2009 had given directions to the MCD to hold review DPC and to consider the applicants therein for promotion to the post of DEO (Physical), whereas the Division Bench in the present case has taken the view that the existing post being that of only DEO, AEO (Physic-a! cannot be considered for promotion as DEO unless the recruitment rules are amended or new recruitment rltles are notified for the post of DEO (Physical). lt is further mentioned that there would be an inherent contradiction in the views taken in both the judgments, and, therefore, keeping in view ihe-mandate of the Hon'ble Supreme Court in the case of Sl Rooplal,.it would be proper that the matter be placed before the Chairman on administrative side for referring the case to the Full Bench. The judgment recorded by this Tribunal in the two Transferred Applications referred to above, does not touch upon even remotely the issue as raised in the present Application' lt was an inter se dispute between DEO (Physical) and the existence or applicability of the resolution of 1997 was not in dispute' No doubt, the directions that have been issued in the two TAs as mentioned above and that would have been issued by the Division Bench in the present case, would not be in tune with each other, and there would indeed be some contradiction." After the said order has been passed, we have been A 5. 5 A'v apprised at the Bar that the matter is placed before the Division Bench. 6. In view of the aforesaid chronology of events, we are not inclined to express any opinion at this stage. Liberty is granted to the petitioners to approach this Court after the Division Bench has dealt with the matter. We will be failing in our duty if we do not note the submission of Mr. Garg that the Division Bench had already in paragraph 34 allowed his application and, therefore, a formality is to be recorded. We do not intend to say anything on that score. 7. The writ petition is accordingly disposed of without any order as to costs. 8. Needless to emphasize, if the petitioners would have any grievance, the same can be assailed in writ proceedings. At that juncture, if assail is made to the justifiability of the order passed by the Full Bench, the writ court shall advert to the same. Copy of this order be given dasti to the learned counsel for the parties under signature of the Court Master. 2t '>'r4 CHIEF JUSTICE rt q -,/ ( (.- {( SANJIV KHANNA, J. AUGUST 02,2011^/KR -/ l \ \ \