Case: VINOD VERMA Vs. UNION OF INDIA AND ORS

2. Brief facts giving rise to the appeal need to be noted are:Rules have been framed under proviso to Article 309 of the Constitution, namely, the Telecommunications Engineering Service (Group B Posts) Recruitment Rules, 1996 (hereinafter referred to as Rules, 1996). The post of Sub-Divisional Engineer is the post governed by the Rules, 1996. The post of Sub-Divisional Engineer is hundred percent promotional post. Junior Telecom Officers are eligible for promotion under two methods: (i) 75% on the basis of seniority-cum-fitness, (ii) 25% on the basis of departmental competitive examination. In the year 2000, the Telecommunication Department initiated the process for filling up of the vacancies Post 1996-97. In the year 2001, the appellant was promoted as Sub-Divisional Engineer under the seniority-cum-fitness quota. The department announced the Limited Departmental Competitive Examination(LDCE)for promotion for the 25% quota for vacancies after 22.07.1996 which examination could be held on 01.12.2002. The department issued the promotion orders dated 26.04.2000 and 07.12.2001 for the officers promoted under the seniority-cum-fitness category for the vacancies occurring after 23.07.1996. The result of Limited Departmental Competitive Examination was declared on 15.12.2003. The appellant also appeared in the Departmental Competitive Examination held on 01.12.2001. The promotion order dated 26.05.2004 was issued for the promotion of LDCE successful candidates. The order contemplated that the seniority of these officers will be fixed as per Rules shortly. DPC was again conducted and promotions were made against the 75% category for the subsequent years 2001-02 and 2002-03 on 16.09.2004. The seniority list of Sub-Divisional Engineers was issued on 12.01.2005 which seniority list became the subject matter of the challenge in various Benches of Central Administrative Tribunal. In Central Administrative Tribunal, Chandigarh Bench, TA No.84-HR-2009, Dewan Chand & Ors. vs. Union of India was filed. Before Central Administrative Tribunal, Bombay Bench, TA No.6 of 2009, S. Sadasivan vs. BSNL was filed. Before Central Administrative Tribunal, Ernakulam Bench, OA No.16 of 2009, Thomas Zachariah vs. BSNL and OA No.86 of 2009, V. Govindan vs. Union of India were filed. Chandigarh Bench of Central Administrative Tribunal decided TA No.84-HR-20090 (Dewan Chand vs. Union of India) vide its judgment dated 25.08.2009. The Central Administrative Tribunal, Chandigarh allowed the Transfer Application. The applicants before the Tribunal were working as Sub-Divisional Engineers. The question raised was as to what would be the mode of fixation of seniority in TES Group B between members of service who are appointed on the basis of seniority vis-a-vis those who enter the service after qualifying the Limited Departmental Competitive Examination. The Tribunal held that the seniority of the incumbents has to be determined on the basis of date of joining and not of the notional date of promotion. The applicants before the Tribunal belonged to the stream who were promoted under seniority-cum-fitness where few of the respondents who were impleaded before the Tribunal were those who were promoted Sub-Divisional Engineers vide order dated 26.05.2004 on the basis of Limited Competitive Departmental Examination. The Tribunal quashed the seniority list prepared by the department and directed for redrawing the seniority list on the basis of date of joining of the incumbents. In paragraph 17 following was directed:17.In view of the above discussion, both these Original Applications are allowed. Orders/seniority lists impugned in these petitions are quashed and set aside. The respondents are directed to re- draw the seniority of officers of TES Group-B on the basis of dates of joining of incumbents, as discussed above, within a period of six months from the date of receipt of copy of this order. Before undertaking such exercise, respondents may invite objections from the persons likely to be adversely effected before re-drawing seniority as observed herein above. No costs3. The appellant was not the party to the said case in Dewan Chand vs. Union of India, TA No.84-HR- 2009, hence, he filed the review petition before the Central Administrative Tribunal. The review petition was dismissed by the CAT on 18.01.2010. The Writ Petition No.5148-CAT of 2010 was filed by the appellant challenging the order dated 25.08.2009 and 18.01.2010 passed by the Central Administrative Tribunal, Chandigarh. The writ petition filed by the appellant was dismissed by the Punjab and Haryana High Court vide its judgment and order dated 03.12.2014. The High Court in its judgment dated 03.12.2014 held that controversy in the case stands settled by the decision dated 12.08.2014 rendered by this Court in SLP(C)No.35756 of 2012 (BSNL and others vs. S. Sadasivan and others). Against the judgment dated 03.12.2014 SLP(C)No.18621 of 2015 was filed by the appellant which was disposed of on 16.10.2015 by this Court permitting the appellant to withdraw the SLP with liberty to file review application before the High Court. In pursuance of the order dated 16.10.2015 appellant filed a review application before the High Court which has been rejected on 24.02.2016. Aggrieved by the judgment dated 24.02.2016 and initial judgment dated 03.12.2014 this appeal has been filed by the appellant.

Reasoning:
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.