Vinod Verma v. Union of India & Ors.
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment dated 03.12.2014
of the High Court of Punjab and Haryana at Chandigarh dismissing the
writ petition filed by the appellant as well as the order dated 24.02.2016
rejecting the Review Application No.21 of 2016 filed by the appellant to
review the judgment dated 03.12.2014.
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
VINOD VERMA v. UNION OF INDIA & ORS.
“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 per cent
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 app ellant was
promoted as Sub-Divisional Engineer under the seniority-cum-fit ness
quota. The department announced the Limited Departm ental
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 ord ers dated
26.04.2000 and 07.12.2001 for the officers promoted under the
seniority-cum-fitness category for the vacancies oc curring after
23.07.1996. The result of Limited Departmental Comp etitive
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 ag ain conducted
and promotions were made against the 75% category f or 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 var ious 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 Tribuna l, 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 Engin eers. The
question raised was as to what would be the mode of fixation of
seniority in TES Group ‘B’ between members of servic e who are
1019
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 pr omoted
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 inc umbents. In
paragraph 17 following was directed:
“17. In view of the above discussion, both these O riginal
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 i nvite
objections from the persons likely to be adversely effected before
re-drawing seniority as observed herein above. No costs.”
3. The appellant was not the party to the said case in Dewa n
Chand vs. Union of India, TA No.84-HR-2009, hence, he fi led the
review petition before the Central Administrative Tribunal. The review
petition was dismissed by the CAT on 18.01.2010. The Writ Petit ion
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 ap pellant 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 deci sion 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 dat ed
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
VINOD VERMA v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
review application before the High Court which has been rej ected 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.
4. We have heard Shri C.A. Sundaram, learned senior counsel
for the appellant. Shri Vikramjit Banerjee, learned Additional Solicitor
General has appeared for the Union of India. Shri B.H. Marlap alle,
learned senior counsel has appeared for BSNL. We have also heard
Shri J.S. Attri, learned senior counsel for the res pondents.
Shri S. Sadasivan, who has filed application for int ervention and
appeared in-person has also been heard. There are s everal other
applications seeking impleadment in these proceedings. We do not find
any necessity to implead applicants in these proceedings . IAs seeking
impleadment in this appeal are refused.
5. Learned counsel for the appellant submits that the recruitment
Rules, 1996 are silent about the seniority rules. It is submitted that the
seniority has to be determined as per OM dated 22.12.1959 and various
other subsequent OMs laying down rules for determination of seniority.
It is submitted that as per Rules, 1996 there being 75% quota fixed for
seniority-cum-fitness and 25% for LDCE, the ROTA rules have to be
determined to decide the seniority between those wh o have been
promoted under seniority-cum-fitness and those who have been
promoted under LDCE. It is submitted that the LDCE candidates
eligible for the year 1996-97 have to be placed senior to the candidates
eligible for 1997-98, 1998-99 and so on. Learned counsel submits that
OM dated 07.02.1986 and 07.02.1990 clarified that e ven if the
promotions for two grades under General Principle 5(ii) tak es place
through separate DPC’s, “…the principle of rotation o f vacancies
between different streams will have to be followed…”.
6. It is submitted that Union of India vs. N.R. Parmar, (2012)
13 SCC 340 , is clearly applicable. It is submitted that neither the Cen-
tral Administrative Tribunal nor the High Court has considered the rel-
evant OM dated 22.12.1959 and subsequent OMs laying down prin-
ciples of seniority due to which error has been committed in setting the
seniority list finalized by the department. It is submitted that judgment of
this Court in SLP(C)No.35756 of 2012(BSNL & Ors. vs. S. Sadasivan
& Ors.) dated 12.08.2014 does not decide the issues raised bef ore the
Punjab and Haryana High Court. It is further submitted that the judg-
1021
ment of this Court in C.A.No.7830 of 2014(Bharat Sanchar Nigam Lim-
ited & Ors. Vs. S.K. Dubey & Ors.) decided on 12.08.2014 does not
consider the relevant OMs determining the seniority. This Court in the
said judgment fell in error in holding that ROTA rule is not applicable.
7. Learned counsel submits that the judgment of this Court i n
Union of India vs. N.R. Parmar, (2012) 13 SCC 340, has again
been reiterated by this Court in its judgment dated 03 .10.2018 in
C.A.Nos.5518-5523 of 2017 (Punjab and Haryana High Court vs. State
of Punjab) that when the quota has been prescribed under the statutory
rules, the ROTA is applicable automatically in the seniority. The
appellant who was eligible earlier years for promotion has to be placed
in the slot according to his eligibility and has to be given seniority of that
position.
8. Learned Additional Solicitor General, Shri Vikramjit Banerjee
submitted that the seniority list was drawn by the department in the ratio
of 3:1 as per OM dated 03.07.1986. Seniority list Nos.6 and 7 were
prepared affecting the Rules of ROTA and quota. Although there are
statutory Rules, 1996 but the same were not for det ermining the
seniority. The seniority was determined on the instructions issued by the
Government of India, Department of Personnel and Trainin g dated
03.07.1986. It is, however, submitted that although department has been
supporting the seniority list based on ROTA and quota but after it was
reversed by three-Judge Bench judgment of this Court dated 12.08.2014,
the department and the BSNL has implemented the judgment.
9. Shri Marlapalle, learned senior counsel, submits that the BSNL
has been following the instructions of the department on the judgment of
S.K.Dubey (supra) and if now the quota and ROTA rules are
implemented it will cause new problems.
10. Learned counsel for promotees under 75% quota submits that
promotions were initially governed by 1981 Rules where quota for
seniority-cum-fitness was 2/3 and for LDCE was 1/3. The 1981 Rules
provided for ROTA rules and further provided that examination has to
be held every year. Rules, 1981 were replaced by the Rules, 1996 which
do not indicate that examination has to be held every year. Further, Rules,
1996 do not provide for ROTA.
VINOD VERMA v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
11. Learned senior counsel further submits that the issue raised in
this appeal is covered by judgments of this Court dated 12.08.2014 (BSNL
& Ors. vs. S.K. Dubey & Ors.) and judgment dated 12.08.2014 i n
Transferred Case No…… of 2014 (arising out of T.P(C)No.184 of 2013),
Rajesh Banta & Ors. vs. Dewan Chand & Ors. Learned counsel
submits that quota of 75% and 25% is applicable but ROTA i s not
applicable.
12. Shri S. Sadasivan, who appeared as intervener submits tha t
benefit of judgment of larger Bench cannot be taken away by any order
in this appeal. He submits that the present is not a ca se of any direct
recruitment. Further, different grades are not available in the present
promotion exercise. He submits that OM dated 03.07.1986 is for direct
recruitment.
13. We have considered the submissions of learned counsel for
the parties and perused the records.
14. The statutory rules, namely, the Telecommunicat ions
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. Schedule to the Rules in Column 11 provides as follows:
“Promotion:
i. 75% on the basis of seniority-cum-fitness.
ii. 25% on the basis of a departmental competitive
examination.”
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 w as
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 Tr ibunal 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
1023
the incumbents. The appellant who claims seniority positio n as per
occurring of vacancy for LDCE quota is aggrieved by the direct ion of
the Tribunal.
16. 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. T he
statutory Rules, 1996 being silent on the question of determinat ion 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 rules.
17. 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 Court’s 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, Bom bay 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 Chand’s case, (which is the order of the Tribunal whic h has
given rise to the present appeal) against which order BSN L filed Writ
Petition No.3725 of 2011 which was dismissed by the Bombay High
Court on 21.06.2011.
18. Against the order of the Bombay High Court dismissing the
writ petition matter was taken to this Court by filing SLP(C)No.35756
VINOD VERMA v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
of 2012 (BSNL & Ors. vs. S. Sadasivan & Ors.). This Court on
12.08.2014 dismissed the said SLP by passing the following order:
“SLP (C) No.35756 OF 2012
In paragraph 3 of the impugned order, the High Cour t has
observed thus:
“The question is : whether the Tribunal was right in answering the
controversy on the principal that the correct date for re ckoning
seniority of the respondent ought to be taken as 7th December,
2001 which is his date of joining. In our opinion, there is no
infirmity in the said view taken by the Tribunal.”
We find no infirmity with the above view taken by the High Court.
Special leave petition is, accordingly, dismissed.”
19. 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 recei ved
final approval by this Court.
20. At this stage, we may consider one more submission whic h
has been raised by the learned counsel for the resp ondents. The
submission which has been raised by the learned cou nsel 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, J abalpur
which directed the appellant, BSNL to assign the notio nal 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 judgme nt are as
follows:
“2. This appeal by special leave is directed against the or der of
the Central Administrative Tribunal, Jabalpur, wher eby the
original application filed by the respondents herein was allowed
and the direction has been given to the present app ellants
(respondent therein) to assign the notional date of promotion as
Sub Divisional Engineers (SDEs) with consequential benefits such
1025
as counting of experience for further promotions, a nnual
increments etc. to the original applicants with eff ect from
23.01.2002.
3. The order passed by the Central Administrative Tri bunal
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 employe es
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 entitl ed
Telegraph Engineering Service (Group ‘B’ Posts) Recruitme nt
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 Departm ental
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 a s well
as holding the examination at least once in a calendar year which
VINOD VERMA v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
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 exp ress
provision in the rules, no promotion or seniority can be granted from a
retrospective date when the employee has not been born in the cadr e.
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) an d by the
judgment dated 12.08.2014, the three-Judge Bench dismissed the wri t
petition which was filed challenging the order of the CAT in D ewan
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. PETITIO NER(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.
1027
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 accord-
ingly. 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 pronounce-
ment 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 Administr ative Tribunal,
Chandigarh Bench in TA No.84-HR-2009. The writ petition filed by the
appellant has to meet the same fate. In view of the fact s as noticed
above that the controversy raised in this appeal is covered b y three-
Judge Bench judgment dated 12.08.2014 we see no necessity to del ve
into various other arguments raise in this appeal. We are not persuaded
to take any different view to one which has been taken by three-Judge
Bench as noted above.
24. We, thus, hold that the present appeal deserves to be dis-
missed in view of the judgment of this Court dated 12.08.2014 Trans-
ferred Case (Civil) No……of 2014(arising out of T.P.(C)No.184 of
2013)(Rajesh Banta & Ors. vs. Dewan Chand & Ors.) and judgment of
the three-Judge Bench of this Court in BSNL & ors. vs. S.K. Dubey &
Ors. decided on 12.08.2014. The appeal is, accordingly, dismissed.
Divya Pandey Appeal dismissed.
VINOD VERMA v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]