Case: VINOD VERMA Vs. UNION OF INDIA AND ORS

been raised by the learned counsel for the respondents is that a three-Judge Bench of this Court in BSNL vs. S.K. Dubey (supra) has finally determined the controversy and held that ROTA rule will not be applicable for determining the seniority of Sub-Divisional Engineers. We may notice the judgment of this Court dated 12.08.2014 in BSNL vs. S.K. Dubey in some detail. BSNL has filed the appeal. In the said appeal the challenge was made to the order of CAT, Jabalpur which directed the appellant, BSNL to assign the notional date of promotion to Sub-Divisional Engineers which order was set aside by this Court by the said judgment. Paragraphs 2 to 4 of the judgment are as follows 2. This appeal by special leave is directed against the order of the Central Administrative Tribunal, Jabalpur, whereby the original application filed by the respondents herein was allowed and the direction has been given to the present appellants (respondent therein) to assign the notional date of promotion as Sub Divisional Engineers (SDEs) with consequential benefits such as counting of experience for further promotions, annual increments etc. to the original applicants with effect from 23.01.2002. 3. The order passed by the Central Administrative Tribunal cannot be sustained for more than one reason. In the first place, there is no rule with regard to the subject service which gives benefit of assigning the notional date of promotion with retrospective effect. The present respondents were employees of the Department of Telecommunications, Government of India and were working as Junior Telecom Officers prior to 1996. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Telecommunications Engineering Services (Group B) Recruitment Rules, 1996 were made with effect from 22.07.1996. Inter alia, these rules provide for method of recruitment, age limit and other qualifications for the recruitment by way of promotion to the post of TES Group B. 4. As per these Rules, 75% promotion is to be made on the basis of seniority-cum- fitness from amongst Junior Telecom Officers with three years regular service in the Grade and 25% is to be promoted on the basis of Departmental Competitive Examination from Junior Telecom Officers with three years r10egular service in the Grade. The crucial date for determining the eligibility is 1st July of the year to which the vacancy pertains. 1996 Recruitment Rules do not provide for ROTA nor does it provide for holding Departmental Competitive Examination for the vacancies every year in contra- distinction to the earlier Rules of 1981 entitled Telegraph Engineering Service (Group B Posts) Recruitment Rules, 1981. 1981 Rules, inter alia, had a provision that inter se seniority of the officials who have qualified in the Departmental Qualifying Examination shall be in the ratio of 2:1 starting with the officers selected by the method of selection by Departmental Promotion Committee on the basis of Departmental Qualifying Examination. It also provided that there shall be normally one examination consisting of two parts called Qualifying- cum-Competitive Examination for promotion to the service which shall be held at least once in a calendar year. The ROTA rule as well as holding the examination at least once in a calendar year which were provided in the 1981 Rules are conspicuously absent in the 1996 Rules. The validity of the 1996 Rules has not been put in issue by any one. 21. This Court further held that in the absence of any express provision in the rules, no promotion or seniority can be granted from a retrospective date when the employee has not been born in the cadre. 22. There is one more reason to hold that the present appeal is covered by three-Judge Bench judgment of this Court dated 12.08.2014. Against the judgment of Tribunal in TA No.84-HR-2009 (Dewan Chand vs. Union of India) a writ petition was filed in Punjab and Haryana High Court being CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others). Thus, in the said writ petition the same order of the Tribunal dated 25.08.2009 was under challenge which has been challenged by the appellant herein. This Court transferred CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others) by Transferred Case (Civil) No……of 2014(arising out of T.P.(C)No.184 of 2013) and by the judgment dated 12.08.2014, the three-Judge Bench dismissed the writ petition which was filed challenging the order of the CAT in Dewan Chand. The order of this Court is brought on record at pages 181-182 of the paper book which is to the following effect: TRANSFERRED CASE (CIVIL) NO. OF 2014 (Arising out of T.P.(Civil) No.184 of 2013) RAJESH BANTA & ORS. PETITIONER(S) VERSUS DEWAN CHAND & ORS. RESPONDENT(S) O R D E R Transfer petition is allowed. Writ Petition being C.W.P. No.5133/CAT-2010 titled Rajesh Banta and Others v. Central Administrative Tribunal and Others is transferred from Punjab and Haryana High Court to this Court and is treated as Transferred Case. 2. We have heard Mr. Sunil Kumar, learned senior counsel for the petitioners. 3. For the reasons stated by us in our order passed today in Civil Appeal arising out of SLP(C) ...2/- -2- No.39932 of 2012 titled Bharat Sanchar Nigam Ltd. & Ors. vs. S.K. Dubey & Ors., the transferred case is liable to be dismissed and is dismissed accordingly. No costs. .......................CJI. ( R.M. LODHA ) .........................J. ( KURIAN JOSEPH ) NEW DELHI; ........................J. AUGUST 12,2014 ( ROHINTON FALI NARIMAN ) 23. When three-Judge Bench of this Court following the pronouncement in BSNL & Ors. vs. S.K. Dubey & Ors., judgment of the same day, has dismissed the writ petition against the same very judgment of the CAT of Chandigarh Bench in Dewan Chand vs. Union of India, the fate of this appeal is sealed by the said judgment by dismissing the writ petition against the order of the Central Administrative Tribunal, Chandigarh Bench in TA No.84-HR-2009. The writ petition filed by the appellant has to meet the same fate.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. The statutory rules, namely, the Telecommunications Engineering Service (Group B Posts) Recruitment Rules, 1996 have been framed under proviso to Article 309 according to which the post of Sub-Divisional Engineer(SDE) is a post which is to be filled up by 100% promotion.15. In the seniority list Nos.7 and 8, the inter se seniority of SDE promoted through seniority-cum- fitness and LDCE was fixed by the department in the ratio of 3:1 as per OM dated 03.07.1986 which was sought to be challenged in the present case, where the appeal has arisen out of the order passed by the Chandigarh Bench of Central Administrative Tribunal. In TA No.84-HR-2009 (Dewan Chand vs. Union of India), the applicants who had approached the Tribunal were promoted under seniority-cum-fitness and they were allocated to the seniority position below the promotees under LDCE quota under which they were given seniority slots earlier to date of promotion. The Tribunal had allowed the TA No.84-HR- 2009 and set aside the seniority list and directed for drawing the seniority list on the basis of date of joining of the incumbents. The appellant who claims seniority position as per occurring of vacancy for LDCE quota is aggrieved by the direction of the Tribunal16. A perusal of Rules, 1996 indicates that Rules, 1996 provides for the method of recruitment, age and other qualifications. The Rules which have been brought on record as Annexure P-8 to the appeal do not contain any provision relating to determination of seniority. The statutory Rules, 1996 being silent on the question of determination of seniority, Shri Sundaram is right in his submission that for determination of seniority OMs dated 22.12.1959, 24.06.1978, 07.02.1986, 03.07.1986 and 07.02.1990 have to be looked into. It is settled law that the determination of seniority can be provided by the Executive instructions if the subject matter is not covered by the statutory rules17. It is to be noted that the High Court has dismissed the writ petition filed by the appellant challenging the order of the CAT dated 25.08.2009 holding that the issue is covered by the judgment of this Court in BSNL vs. S. Sadasivan. It is necessary to look into the judgment of this Court in BSNL vs. S. Sadasivan and proceeding giving rise to this Courts order dated 12.08.2014. Shri S. Sadasivan before CAT, Bombay Bench, Mumbai has challenged the validity of the seniority list dated 28.07.2004. In seniority list Nos.6 and 7 of Telecommunication Engineers Group B S. Sadasivan was promoted under 75% quota on 07.12.2001. On 01.12.2002 Limited Departmental Competitive Examination was held for 25% quota, result of which was declared on 15.12.2003. Thereafter, seniority list Nos.6 and 7 were issued. The case of S. Sadasivan was that seniority of the applicant was below to who was subsequently promoted on 26.05.2004. It is relevant to notice that the Central Administrative Tribunal, Bombay Bench allowed the application vide its judgment dated 25.11.2010 and set aside the seniority list. The respondents were directed to recast the seniority list on the basis of the order given by the Chandigarh Bench of CAT in Dewan Chands case, (which is the order of the Tribunal which has given rise to the present appeal) against which order BSNL filed Writ Petition No.3725 of 2011 which was dismissed by the Bombay High Court on 21.06.201119. The order of the CAT, Bombay which was passed issuing direction for casting of the seniority on the basis of the judgment of Dewan Chand passed by CAT, Chandigarh, thus, has been received final approval by this Court20. At this stage, we may consider one more submission which has been raised by the learned counsel for the respondents. The submission which has been raised by the learned counsel for the respondents is that a three-Judge Bench of this Court in BSNL vs. S.K. Dubey (supra) has finally determined the controversy and held that ROTA rule will not be applicable for determining the seniority of Sub-Divisional Engineers. We may notice the judgment of this Court dated 12.08.2014 in BSNL vs. S.K. Dubey in some detail. BSNL has filed the appeal. In the said appeal the challenge was made to the order of CAT, Jabalpur which directed the appellant, BSNL to assign the notional date of promotion to Sub-Divisional Engineers which order was set aside by this Court by the said judgment.21. This Court further held that in the absence of any express provision in the rules, no promotion or seniority can be granted from a retrospective date when the employee has not been born in the cadre22. There is one more reason to hold that the present appeal is covered by three-Judge Bench judgment of this Court dated 12.08.2014. Against the judgment of Tribunal in TA No.84-HR-2009 (Dewan Chand vs. Union of India) a writ petition was filed in Punjab and Haryana High Court being CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others). Thus, in the said writ petition the same order of the Tribunal dated 25.08.2009 was under challenge which has been challenged by the appellant herein. This Court transferred CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others) by Transferred Case (Civil) No……of 2014(arising out of T.P.(C)No.184 of 2013) and by the judgment dated 12.08.2014, the three-Judge Bench dismissed the writ petition which was filed challenging the order of the CAT in Dewan Chand.23. When three-Judge Bench of this Court following the pronouncement in BSNL & Ors. vs. S.K. Dubey & Ors., judgment of the same day, has dismissed the writ petition against the same very judgment of the CAT of Chandigarh Bench in Dewan Chand vs. Union of India, the fate of this appeal is sealed by the said judgment by dismissing the writ petition against the order of the Central Administrative Tribunal, Chandigarh Bench in TA No.84-HR-2009. The writ petition filed by the appellant has to meet the same fate.