Pradip Kumar Dey and Others Vs. Union of India Through the Secretary to the Govt. of India, Ministry of Urban Affairs and Poverty Alleviation, Nirman Bhawan, New Delhi and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/940219
CourtCentral Administrative Tribunal CAT Delhi
Decided OnApr-04-2012
Case NumberO.A.No.96 of 2011 With O.A.No.1026 of 2011
JudgeTHE HONOURABLE MR. M.L. CHAUHAN, MEMBER (J) & THE HONOURABLE MRS. MANJULIKA GAUTAM, MEMBER (A)
AppellantPradip Kumar Dey and Others
RespondentUnion of India Through the Secretary to the Govt. of India, Ministry of Urban Affairs and Poverty Al
Advocates:For the Applicants: Ramesh Babu, Advocate. For the Respondents: Ms. Priyanka Bhardwaj, Advocate.
Excerpt:
m.l. chauhan: 1. by this common order, we propose to dispose of both these oas, as the question involved in these oas is the same. 2. the grievance raised by the applicants in oa-96/2011 is that the limited departmental competitive examination (ldce) for promotion from junior engineer to assistant engineer should not be held without making regular promotion to the rank of assistant engineer from a seniority quota and the respondents may be directed to take immediate steps for filling up the post of assistant engineer on regular basis against the seniority quota, whereas the grievance of the applicants in oa-1026/2011 is regarding impugned notice dated 5.11.2009 (annexure a-1) whereby the respondents have undertaken to fill up the post of assistant engineer (civil) and (electrical) by way of ldce quota and it has been prayed that the same be filled in from seniority quota. 3. in order to decide the matter in controversy, few relevant facts may be noticed. as per the existing recruitment rules for the post of assistant engineer (civil) and (electrical), the promotion to the said post has to be made from two sources, namely, 50% posts are to be filled up by junior engineers in the scale of pay of rs.5000-8000 with six year’s regular service in the grade and 50% posts are to be filled by ldce to be conducted by the central public works department training institute with four years regular service in the grade. 4. the grievance of the applicant is that the posts, as notified vide impugned notice annexure a-1, should be filled in from seniority quota and action of the respondents to fill up the same from ldce quota is arbitrary, discriminatory and ultra vires to the statutory rules. from the material placed on record, it is evident that the post of assistant engineer (civil) and (electrical) from ldce quota has been filled up till the vacancy year 2001-2002. the department could not conduct the exam to fill up the vacancies falling in the quota of ldce from the year 2002-2003 onwards, as various courts cases were pending. ultimately when filling up of the vacancies falling in seniority quota (61 vacancies for the year 2002-2003 and 73 vacancies for the year 2003-2004) was brought to the notice of the high court of kerala at ernakulam in writ petition (c) no.3075/2005, the high court vide its order dated 4.4.2005 in paragraph 8 of the judgment, which has been placed on record as annexure a-4 in oa-1026/2011, disposed of the said writ petition while vacating the interim stay, thereby observing that “there cannot be any difference of opinion that after 14.11.2003 application of annexure a1 is mandatory. if a matter of fact, as stated in the counter affidavit such number of persons belonging to seniority channel had obtained promotion before 14.11.2003, during 1.4.2003 to 14.11.2003, an equal number of lcde hands also are entitled to get promotion”. thus, the fact that the post is to be filled up from ldce quota and not by way of seniority quota has been given a quietus by the judgment of the high court of kerala. 5. it may also be useful to notice here that pursuant to the aforesaid direction given by the high court of kerala, the respondents-department issued notification for holding the ldce on 10.6.2007. however, the process could not be completed, as two oas were filed in which the issue raised was whether the junior engineers redeployed in cpwd from all india radio were allowed to count their service for the purpose of eligibility to appear in the said examination. 6. the respondents in their counter affidavit filed in oa-1026/2011 in paragraph 5 have explained that two contradictory judgments were rendered, one by the ernakulam bench of the tribunal in oa-813/2007, whereas another judgment was rendered by the principal bench in oa-103/2007. it has further been explained that the judgment of the principal bench, which has held that the eligibility with redeployment of air junior engineers cannot be denied, has been upheld by the apex court whereas the judgment of the ernakulam bench held otherwise and was challenged before the high court of kerala by filing wp (c) no.32571/2009. the high court vide its order dated 13.11.2009 has stayed the operation of the order of the ernakulam bench of the tribunal dated 11.10.2007 in joint oa no.290/2007 (with connected oas) till the final disposal of the oas. 7. the respondents in the reply affidavit have also stated that the high court has passed the interim order that the petitioners shall not conduct the examination without obtaining orders from the court. this interim order has been subsequently modified vide order dated 2.2.2010. thus, according to the respondents, the posts of assistant engineer (civil) and (electrical) have been filled up in the light of the existing recruitment rules and the guidelines of the dopt. at this stage, it will be useful to quote paragraph 10 of the reply affidavit as to how the vacancies pertaining to ldce quota have been filled up in terms of the dopt guidelines as well as in the light of the provisions contained in recruitment rules, which thus reads:- “10. it is submitted that as per dopt guidelines, where the recruitment rules provides 50% posts to be filled up through seniority quota and 50% posts to be filled up from limited departmental competitive examination, the vacancies of the particular years may be filled up by dividing the same into the ratio 1:1 irrespective of number of ae’s retired during the year pertaining to seniority or ldce. if in any particular year there are 50 no of vacancies occurred due to retirement in which 35 number of ae’s retired pertaining to seniority and 15 number of ae’s retired pertaining to ldce, the vacancies between seniority and ldce will be distributed into 50:50 and number of points in roaster will be increased or decreased accordingly. the department follows the above guidelines of dopt which is the nodal department of government of india in service matter. thus it is well clear that the respondents have ride and followed the existing guidelines and nothing gone beyond the rules. it is also denied that the department has not followed the judgment dated 4/11/05 of kerala high court in wp no.3075/2005.” 8. we have referred to relevant portion of the judgment of the high court of kerala dated 4.4.2005 in earlier part of this order. the high court, after taking notice of the reply affidavit whereby the respondents have stated that 61 persons were promoted during the year 2002-2003 and 73 persons were promoted during the year 2003-2004 from the seniority quota vide order dated 14.11.2003 during 1.4.2003 to 14.11.2003, held that an equal number of persons belong to ldce category should also be promoted. thus, the further question, which requires our consideration, is how the vacancy arising in ldce quota where no such examination was admittedly held after 2001-2002 is to be filled in. 9. according to the learned counsel for applicants, the respondents should maintain 1:1 ratio taking into consideration the overall strength of the cadre and filled up the post in the ratio 1:1. on the contrary, according to the respondents in terms of the dopt guidelines where the recruitment rules provide 50% posts are to be filled up from seniority quota and 50% posts are to be filled by ldce quota, the vacancy particulars have to be filled up dividing the same into the ratio 1:1 irrespective of number of aes retired during the year pertaining to seniority or ldce. this has further been illustrated that if in a particular year there are 50 number of vacancies occurred due to retirement in which 35 number of aes retired pertaining to seniority and 15 number of aes retired pertaining to ldce, the vacancies between seniority and ldce will be distributed into 50:50 and number of points in roster will be increased or decreased accordingly. 10. thus, according to the respondents, ratio of 50:50 has to be applied to the vacancies irrespective of the fact whether retired person belongs to seniority quota or ldce quota. according to us, the stand taken by the respondents is inconformity with the law laid down by the apex court in state of punjab and others v. dr. r.n. bhatnagar and another, (1999) 2 scc 330. in this case, the apex court has held that where recruitment rules provide for filling up vacancies in cadre from two sources, roster provided in the rule should be followed every time the vacancies arise and the reference made to the post in the recruitment rules was referred to vacancies and not to the total posts in the cadre. the apex court has further held that the judgment in r.k. sabharwal v. state of punjab, (1995) 2 scc 745 wherein it provides for post based roster cannot be made applicable where the vacancies/posts have to be filled in from two sources. 11. thus, viewing the matter from any angle, we find that the applicants in these oas have not made out any case for grant of reliefs. accordingly, both the oas are dismissed without any order as to costs. a copy of this order be kept in both the files.
Judgment:

M.L. CHAUHAN:

1. By this common order, we propose to dispose of both these OAs, as the question involved in these OAs is the same.

2. The grievance raised by the applicants in OA-96/2011 is that the Limited Departmental Competitive Examination (LDCE) for promotion from Junior Engineer to Assistant Engineer should not be held without making regular promotion to the rank of Assistant Engineer from a seniority quota and the respondents may be directed to take immediate steps for filling up the post of Assistant Engineer on regular basis against the seniority quota, whereas the grievance of the applicants in OA-1026/2011 is regarding impugned notice dated 5.11.2009 (Annexure A-1) whereby the respondents have undertaken to fill up the post of Assistant Engineer (Civil) and (Electrical) by way of LDCE quota and it has been prayed that the same be filled in from seniority quota.

3. In order to decide the matter in controversy, few relevant facts may be noticed. As per the existing recruitment rules for the post of Assistant Engineer (Civil) and (Electrical), the promotion to the said post has to be made from two sources, namely, 50% posts are to be filled up by Junior Engineers in the scale of pay of Rs.5000-8000 with six year’s regular service in the grade and 50% posts are to be filled by LDCE to be conducted by the Central Public Works Department Training Institute with four years regular service in the grade.

4. The grievance of the applicant is that the posts, as notified vide impugned notice Annexure A-1, should be filled in from seniority quota and action of the respondents to fill up the same from LDCE quota is arbitrary, discriminatory and ultra vires to the statutory rules. From the material placed on record, it is evident that the post of Assistant Engineer (Civil) and (Electrical) from LDCE quota has been filled up till the vacancy year 2001-2002. The Department could not conduct the exam to fill up the vacancies falling in the quota of LDCE from the year 2002-2003 onwards, as various courts cases were pending. Ultimately when filling up of the vacancies falling in seniority quota (61 vacancies for the year 2002-2003 and 73 vacancies for the year 2003-2004) was brought to the notice of the High Court of Kerala at Ernakulam in Writ Petition (C) No.3075/2005, the High Court vide its order dated 4.4.2005 in paragraph 8 of the judgment, which has been placed on record as Annexure A-4 in OA-1026/2011, disposed of the said writ petition while vacating the interim stay, thereby observing that “There cannot be any difference of opinion that after 14.11.2003 application of Annexure A1 is mandatory. If a matter of fact, as stated in the counter affidavit such number of persons belonging to seniority channel had obtained promotion before 14.11.2003, during 1.4.2003 to 14.11.2003, an equal number of LCDE hands also are entitled to get promotion”. Thus, the fact that the post is to be filled up from LDCE quota and not by way of seniority quota has been given a quietus by the judgment of the High Court of Kerala.

5. It may also be useful to notice here that pursuant to the aforesaid direction given by the High Court of Kerala, the respondents-department issued notification for holding the LDCE on 10.6.2007. However, the process could not be completed, as two OAs were filed in which the issue raised was whether the Junior Engineers redeployed in CPWD from All India Radio were allowed to count their service for the purpose of eligibility to appear in the said examination.

6. The respondents in their counter affidavit filed in OA-1026/2011 in paragraph 5 have explained that two contradictory judgments were rendered, one by the Ernakulam Bench of the Tribunal in OA-813/2007, whereas another judgment was rendered by the Principal Bench in OA-103/2007. It has further been explained that the judgment of the Principal Bench, which has held that the eligibility with redeployment of AIR Junior Engineers cannot be denied, has been upheld by the Apex Court whereas the judgment of the Ernakulam Bench held otherwise and was challenged before the High Court of Kerala by filing WP (C) No.32571/2009. The High Court vide its order dated 13.11.2009 has stayed the operation of the order of the Ernakulam Bench of the Tribunal dated 11.10.2007 in joint OA No.290/2007 (with connected OAs) till the final disposal of the OAs.

7. The respondents in the reply affidavit have also stated that the High Court has passed the interim order that the petitioners shall not conduct the examination without obtaining orders from the Court. This interim order has been subsequently modified vide order dated 2.2.2010. Thus, according to the respondents, the posts of Assistant Engineer (Civil) and (Electrical) have been filled up in the light of the existing recruitment rules and the guidelines of the DOPT. At this stage, it will be useful to quote paragraph 10 of the reply affidavit as to how the vacancies pertaining to LDCE quota have been filled up in terms of the DOPT guidelines as well as in the light of the provisions contained in recruitment rules, which thus reads:-

“10. It is submitted that as per DOPT Guidelines, where the recruitment rules provides 50% posts to be filled up through seniority quota and 50% posts to be filled up from Limited Departmental Competitive Examination, the vacancies of the particular years may be filled up by dividing the same into the ratio 1:1 irrespective of number of AE’s retired during the year pertaining to seniority or LDCE. If in any particular year there are 50 no of vacancies occurred due to retirement in which 35 number of AE’s retired pertaining to seniority and 15 number of AE’s retired pertaining to LDCE, the vacancies between seniority and LDCE will be distributed into 50:50 and number of points in Roaster will be increased or decreased accordingly. The department follows the above guidelines of DOPT which is the nodal department of Government of India in service matter. Thus it is well clear that the respondents have ride and followed the existing guidelines and nothing gone beyond the rules. It is also denied that the department has not followed the judgment dated 4/11/05 of Kerala High Court in WP No.3075/2005.”

8. We have referred to relevant portion of the judgment of the High Court of Kerala dated 4.4.2005 in earlier part of this order. The High Court, after taking notice of the reply affidavit whereby the respondents have stated that 61 persons were promoted during the year 2002-2003 and 73 persons were promoted during the year 2003-2004 from the seniority quota vide order dated 14.11.2003 during 1.4.2003 to 14.11.2003, held that an equal number of persons belong to LDCE category should also be promoted. Thus, the further question, which requires our consideration, is how the vacancy arising in LDCE quota where no such examination was admittedly held after 2001-2002 is to be filled in.

9. According to the learned counsel for applicants, the respondents should maintain 1:1 ratio taking into consideration the overall strength of the cadre and filled up the post in the ratio 1:1. On the contrary, according to the respondents in terms of the DOPT guidelines where the recruitment rules provide 50% posts are to be filled up from seniority quota and 50% posts are to be filled by LDCE quota, the vacancy particulars have to be filled up dividing the same into the ratio 1:1 irrespective of number of AEs retired during the year pertaining to seniority or LDCE. This has further been illustrated that if in a particular year there are 50 number of vacancies occurred due to retirement in which 35 number of AEs retired pertaining to seniority and 15 number of AEs retired pertaining to LDCE, the vacancies between seniority and LDCE will be distributed into 50:50 and number of points in roster will be increased or decreased accordingly.

10. Thus, according to the respondents, ratio of 50:50 has to be applied to the vacancies irrespective of the fact whether retired person belongs to seniority quota or LDCE quota. According to us, the stand taken by the respondents is inconformity with the law laid down by the Apex Court in State of Punjab and others v. Dr. R.N. Bhatnagar and another, (1999) 2 SCC 330. In this case, the Apex Court has held that where recruitment rules provide for filling up vacancies in cadre from two sources, roster provided in the rule should be followed every time the vacancies arise and the reference made to the post in the recruitment rules was referred to vacancies and not to the total posts in the cadre. The Apex Court has further held that the judgment in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 wherein it provides for post based roster cannot be made applicable where the vacancies/posts have to be filled in from two sources.

11. Thus, viewing the matter from any angle, we find that the applicants in these OAs have not made out any case for grant of reliefs. Accordingly, both the OAs are dismissed without any order as to costs.

A copy of this order be kept in both the files.