Supreme Court of India
VINOD VERMAversusUNION OF INDIA & ORS.
- Citation
- 2019 INSC 451
- Decided
- 2 April 2019
- Disposal
- Dismissed
- Bench
- ASHOK BHUSHAN
Holding
The appeal is barred by the Supreme Court's three‑Judge Bench judgments of 12 August 2014 and is therefore dismissed; seniority is to be fixed by executive instructions as the 1996 Rules contain no provision, and the ROTA rule does not apply.
Summary
The appellant, a Junior Telecom Officer promoted to Sub‑Divisional Engineer under the seniority‑cum‑fitness quota, challenged the seniority list prepared by the Department of Telecommunications, arguing that seniority should be fixed according to dated executive orders and that the ROTA rule should apply. The seniority list had been altered by the Central Administrative Tribunal (CAT) to rank officers promoted through the Limited Departmental Competitive Examination (LDCE) above those promoted by seniority, which the appellant contested. The High Court dismissed the writ petition, holding that the matter was already decided by the Supreme Court in BSNL & Ors. v. S. Sadasivan and related three‑Judge Bench judgments of 12 August 2014. The Supreme Court affirmed that the 1996 Recruitment Rules are silent on seniority, allowing executive instructions to determine it, and that the earlier judgments preclude any fresh review. Consequently, the appeal was dismissed.
Issues considered
- Whether seniority of Sub‑Divisional Engineers can be determined by executive instructions when the 1996 Recruitment Rules are silent on the matter.
- Whether the ROTA rule applies to the inter‑se seniority between officers promoted under the 75% seniority‑cum‑fitness quota and the 25% LDCE quota.
- Whether the appellant's challenge is barred by the Supreme Court's earlier three‑Judge Bench judgments in BSNL & Ors. v. S. Sadasivan and BSNL & Ors. v. S.K. Dubey.
- Whether the CAT's order directing seniority based on date of joining is consistent with the statutory framework.
Legislation cited
- Constitution of Indias. Art.309
Subjects
Service LawSeniority DeterminationArticle 309Executive InstructionsROTA RuleCentral Administrative TribunalPromotion RulesTelecommunications Engineering Service
Judgment
1014 [2019]REPORTS
SUPREME COURT 6 S.C.R. 1014 [2019] 6 S.C.R.
A VINOD VERMA
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 14967 of 2017)
B APRIL 02, 2019
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
Telecommunications Engineering Service (Group “B” Posts)
Recruitment Rules, 1996 – Post of Sub-Divisional Engineer governed
by 1996 Rules – Junior Telecom Officers eligible for promotion
C
under two methods- 75% on the basis of seniority-cum-fitness and
25% on the basis of departmental competitive examination – In 2001,
the appellant was promoted as Sub-Divisional Engineer under the
seniority-cum-fitness quota – Department announced the Limited
Departmental Competitive Examination (LDCE) for promotion for
D the 25% quota for vacancies after 22.07.1996 – Appellant also
appeared in the Departmental Competitive Examination – Promotion
order issued for the promotion of LDCE successful candidates –
Promotions also made against the 75% category for the subsequent
years – Seniority list of Sub-Divisional Engineers issued –
Challenged in various Benches of Central Administrative Tribunal
E
– In CAT, Chandigarh Bench, case titled Dewan Chand & Ors. vs.
Union of India was filed wherein the Tribunal vide order dated
25.08.2009 quashed the seniority list and directed redrawing the
seniority list – Appellant was not party to the said case – Appellant
filed review petition before the Tribunal – Dismissed on 18.01.2010
F – Writ Petition filed by the appellant challenging the orders dated
25.08.2009 and 18.01.2010 – Dismissed – SLP filed by the appellant
– Dismissed with liberty to file review application before the High
Court – Appellant filed review application – Rejected – On appeal,
held: Present appeal is covered by three-Judge Bench judgment of
Supreme Court dtd. 12.08.2014 in Rajesh Banta & Ors. vs. Dewan
G
Chand & Ors. and BSNL vs. S.K. Dubey – Against the judgment of
Tribunal dated 25.08.2009 in Dewan Chand vs. Union of India, a
writ petition was filed in Punjab and Haryana High Court titled
Rajesh Banta and others vs. Central Administrative Tribunal and others
– Thus, in the said writ petition the same order of the Tribunal dated
H
1014
VINOD VERMA v. UNION OF INDIA & ORS. 1015
25.08.2009 was under challenge which has been challenged by A
the appellant herein – Supreme Court vide order dated 12.08.2014,
following judgment of the same day in BSNL vs. S.K. Dubey,
dismissed the said writ petition which was filed challenging the order
of CAT in Dewan Chand – Accordingly, writ petition filed by the
appellant is also dismissed – Constitution of India – Art.309 –
B
Service Law.
Service Law – Seniority – Determination of, by executive
instructions vis-a-vis statutory rules – Held: Determination of
seniority can be provided by the Executive instructions if the subject
matter is not covered by the statutory rules.
C
Dismissing the appeal, the Court
HELD: 1.1 A perusal of Telecommunications Engineering
Service (Group “B” Posts) Recruitment Rules, 1996 indicates
that Rules, 1996 provides for the method of recruitment, age
and other qualifications. The Rules which have been brought on D
record do not contain any provision relating to determination of
seniority. The statutory Rules, 1996 being silent on the question
of determination of seniority, 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. Determination of seniority
can be provided by the Executive instructions if the subject matter E
is not covered by the statutory rules. [Para 16][1023-B-C]
1.2 The present appeal is covered by three-Judge Bench
judgment of Supreme Court dated 12.08.2014. Against the
judgment of Tribunal in TA No.84-HR-2009, a writ petition was
filed in Punjab and Haryana High Court being CWP No.5133/ F
CAT of 2010 . 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. Supreme Court by the
judgment dated 12.08.2014 dismissed the writ petition which was
filed challenging the order of the CAT in Dewan Chand. G
[Para 22][1026-C-D]
1.3 When three-Judge Bench of Supreme Court following
the pronouncement in BSNL & Ors. vs. S.K. Dubey & Ors.,
judgment of the same day, dismissed the writ petition against the
H
1016 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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. The controversy raised in this appeal is
B
covered by three-Judge Bench judgment dated 12.08.2014. The
present appeal deserves to be dismissed in view of the judgment
of Supreme Court dated 12.08.2014 (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
C 12.08.2014. [Paras 23, 24][1027-D-G]
BSNL and Others v. S. Sadasivan and Others Judgment
of Supreme Court dated 12.08.2014 in SLP(C)
No.35756 of 2012 ; Rajesh Banta & Ors. v. Dewan
Chand & Ors. Judgment of Supreme Court dated
D 12.08.2014 in T.P (C) No. 184 of 2013 ; Bharat
Sanchar Nigam Limited & Ors. Vs. S.K. Dubey & Ors.
Judgment of Supreme Court dated 12.08.2014 in
C.A.No.7830 of 2014 decided on 12.08.2014
– relied on.
E Dewan Chand & Ors. v. Union of India Order of
Central Administrative Tribunal, Chandigarh Bench
in TA No.84-HR-2009; S. Sadasivan v. BSNL Order of
Central Administrative Tribunal, Bombay Bench in
TA No.6 of 2009; Thomas Zachariah v. BSNL Order of
Central Administrative Tribunal, Ernakulam Bench
F in OA No.16 of 2009; V. Govindan v. Union of India
Order of Central Administrative Tribunal, Ernakulam
Bench in OA No.86 of 2009; Union of India v. N.R.
Parmar (2012) 13 SCC 340 : [2012] 13 SCR 555;
Rajesh Banta and Others v. Central Administrative
G Tribunal and Others CWP No.5133/CAT of 2010;
Punjab and Haryana High Court v. State of Punjab
AIR 2018 SC 5284 – referred to.
H
VINOD VERMA v. UNION OF INDIA & ORS. 1017
Case Law Reference A
[2012] 13 SCR 555 referred to Para 6
AIR 2018 SC 5284 referred to Para 7
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14967 B
of 2017
From the Judgment and Order dated 03.12.2014 and 24.02.2016
of the High Court of Punjab and Haryana at Chandigarh in Civil Writ
Petition No. 5148 – CAT of 2010 (O & M) and in Review Application
No. 21 of 2016 in CWP No. 5148 – CAT of 2010 C
C. A. Sundaram, Sr. Adv., Puneet Jain, Abhinav Gupta, Ankita
Gupta, Harsh Jain, Abhinav Deshwal, Abhishek Gupta, Zafar Inayat,
Ms. Christi Jain, Advs. for the Appellant.
Vikramjit Banerjee, Aman Lekhi, ASG, B. H. Marlapalle,
D
J. S. Attri, P. N. Ravindran, V. K. Garg, Sr. Advs., Vijay Prakash, Rajesh
Ranjan, Ms. Nachiketa Joshi, G. S. Makker, Ms. Malini Poduval, Ajit
Wagh, Ms. Babita Sant, Parveen Kumar Aggarwal, Sanjay Jain, Pradeep
Kumar Mathur, Ms. Amita Singh Kalkal, Yadav Narender Singh, Sachin
Sharma, Harish Panday, Arvind Kumar Sharma, Vivek Sharma, Neeraj
K. Sharma, Parveen Agarwal, Ashok Kumar Singh, Sanjay Jain, Robin E
Jacob, Tom Joseph, Antony M.P., Robin Khokkar, Neeraj, Sharma,
Ms. Noopur Dubey, Ms. Priyanka Dixit, Advs. for the Respondents.
S. Sadasivan, Intervenor – In – Person.
The Judgment of the Court was delivered by
F
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 G
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
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1018 SUPREME COURT REPORTS [2019] 6 S.C.R.
A “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
B
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
C 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
D
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
E 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
F
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
G 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
H
VINOD VERMA v. UNION OF INDIA & ORS. 1019
[ASHOK BHUSHAN, J.]
appointed on the basis of seniority vis-a-vis those who enter the service A
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
B
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: C
“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 D
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 costs.”
3. The appellant was not the party to the said case in Dewan E
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 F
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 G
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
H
1020 SUPREME COURT REPORTS [2019] 6 S.C.R.
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.
4. We have heard Shri C.A. Sundaram, learned senior counsel
for the appellant. Shri Vikramjit Banerjee, learned Additional Solicitor
B General has appeared for the Union of India. Shri B.H. Marlapalle,
learned senior counsel has appeared for BSNL. We have also heard
Shri J.S. Attri, learned senior counsel for the respondents.
Shri S. Sadasivan, who has filed application for intervention and
appeared in-person has also been heard. There are several other
applications seeking impleadment in these proceedings. We do not find
C 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
D 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 who have been
promoted under seniority-cum-fitness and those who have been
E 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 even if the
promotions for two grades under General Principle 5(ii) takes place
through separate DPC’s, “…the principle of rotation of vacancies
F 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-
G 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 before the
Punjab and Haryana High Court. It is further submitted that the judg-
H
VINOD VERMA v. UNION OF INDIA & ORS. 1021
[ASHOK BHUSHAN, J.]
ment of this Court in C.A.No.7830 of 2014(Bharat Sanchar Nigam Lim- A
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 in
Union of India vs. N.R. Parmar, (2012) 13 SCC 340, has again B
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 C
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 D
statutory Rules, 1996 but the same were not for determining the
seniority. The seniority was determined on the instructions issued by the
Government of India, Department of Personnel and Training 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 E
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 F
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 G
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.
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1022 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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 in
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 is not
B
applicable.
12. Shri S. Sadasivan, who appeared as intervener submits that
benefit of judgment of larger Bench cannot be taken away by any order
in this appeal. He submits that the present is not a case of any direct
recruitment. Further, different grades are not available in the present
C 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.
D 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. Schedule to the Rules in Column 11 provides as follows:
E “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
F
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
G 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
H
VINOD VERMA v. UNION OF INDIA & ORS. 1023
[ASHOK BHUSHAN, J.]
the incumbents. The appellant who claims seniority position as per A
occurring of vacancy for LDCE quota is aggrieved by the direction 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 B
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 C
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 D
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 E
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 F
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 which has
given rise to the present appeal) against which order BSNL filed Writ G
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
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1024 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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 Court has
observed thus:
B
“The question is : whether the Tribunal was right in answering the
controversy on the principal that the correct date for reckoning
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.”
C
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
D Dewan Chand passed by CAT, Chandigarh, thus, has been received
final approval by this Court.
20. 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.
E
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
F 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
G 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
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VINOD VERMA v. UNION OF INDIA & ORS. 1025
[ASHOK BHUSHAN, J.]
as counting of experience for further promotions, annual A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
1026 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B 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
C 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)
D 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:
E “TRANSFERRED CASE (CIVIL) NO. OF 2014
(Arising out of T.P.(Civil) No.184 of 2013)
RAJESH BANTA & ORS. PETITIONER(S)
VERSUS
F DEWAN CHAND & ORS. RESPONDENT(S)
ORDER
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
G 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.
H
VINOD VERMA v. UNION OF INDIA & ORS. 1027
[ASHOK BHUSHAN, J.]
3. For the reasons stated by us in our order passed today in Civil A
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. B
( R.M. LODHA )
.........................J.
( KURIAN JOSEPH )
C
NEW DELHI; ........................J.
AUGUST 12,2014 (ROHINTON FALI NARIMAN )”
23. When three-Judge Bench of this Court following the pronounce- D
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 Administrative Tribunal,
Chandigarh Bench in TA No.84-HR-2009. The writ petition filed by the E
appellant has to meet the same fate. In view of the facts as noticed
above that the controversy raised in this appeal is covered by three-
Judge Bench judgment dated 12.08.2014 we see no necessity to delve
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 F
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 G
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.
H
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