1. Dispute over seniority fixation for promotional posts between seniority-cum-fitness and departmental competitive examination quotas under statutory recruitment rules. (Para 2 , 14 , 15 )
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2019 Supreme(SC) 386
SUPREME COURT OF INDIA
Ashok Bhushan, K.M. Joseph, JJ.
VINOD VERMA – Appellant
Vs.
UNION OF INDIA AND OTHERS - Respondents
Civil Appeal No. 14967 of 2017
Decided On : 02-04-2019
Important Points
IMPORTANT POINT
Determination of seniority can be provided by Executive instructions if subject matter is not covered by statutory rules.
Determination of seniority can be provided by Executive instructions if subject matter is not covered by statutory rules.
Subject
Administrative Law - Seniority and Promotion
Act Referred
SERVICE LAW: .
TELECOMMUNICATIONS ENGINEERING SERVICE (GROUP “B” POSTS) RECRUITMENT RULES: .
TELECOMMUNICATIONS ENGINEERING SERVICE (GROUP “B” POSTS) RECRUITMENT RULES: .
Headnote
Service Law – Promotion – Limited Departmental Competitive Examination – Determination of seniority can be provided by Executive instructions if subject matter is not covered by statutory rules – In absence of any express provision in rules, no promotion or seniority can be granted from a retrospective date when employee has not been born in cadre – Controversy raised in this appeal is covered by Three-Judges Bench judgment dated 12.08.2014 – Appeal dismissed. [Telecommunications Engineering Service (Group “B” Posts) Recruitment Rules, 1996] (Paras 16, 21, 23 and 24)
Facts of Case:
Promotion. Applicants before Tribunal belonged to stream who were promoted under seniority-cum-fitness where few of respondents who were impleaded before Tribunal were those who were promoted Sub-Divisional Engineers vide order dated 26.05.2004 on the basis of Limited Competitive Departmental Examination. Tribunal quashed seniority list prepared by department and directed for redrawing the seniority list on the basis of date of joining of incumbents. Writ petition and review petition filed by appellant was dismissed by High Court leading to filing of present appeal by appellant.
Findings of Court:
Present appeal deserves to be dismissed in view of judgment of this Court dated 12.08.2014 Transferred 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 three-Judge Bench of this Court in BSNL & ors. vs. S.K. Dubey & Ors. decided on 12.08.2014.
Result : Appeal dismissed.
Legal Category Hierarchy
Advocates Appeared:
For the Appellant :Mr. Puneet Jain, Advocate and Ms. Christi Jain, Advocate
For the Respondent:Mr. Sanjay Jain, Advocate, Mr. J.S. Attri, Sr. Advocate, Mr. Pradeep Kumar Mathur, Advocate, Ms. Babita Sant, Advocate, Ms. Malini Poduval, Advocate, Ms. Amita Singh Kalkal, Advocate, Ms. Gauri Puri, Advocate, Mr. Yadav Narender Singh, Advocate, Mr. Arvind Kumar Sharma, Advocate, Mr. Robin Jacob, Advocate, Mr. Tom Joseph, Advocate, Mr. Kumar Gaurav, Advocate and Mr. Antony M.P., Advocate, for the Respondent.
For the Appellant :Mr. Puneet Jain, Advocate and Ms. Christi Jain, Advocate
For the Respondent:Mr. Sanjay Jain, Advocate, Mr. J.S. Attri, Sr. Advocate, Mr. Pradeep Kumar Mathur, Advocate, Ms. Babita Sant, Advocate, Ms. Malini Poduval, Advocate, Ms. Amita Singh Kalkal, Advocate, Ms. Gauri Puri, Advocate, Mr. Yadav Narender Singh, Advocate, Mr. Arvind Kumar Sharma, Advocate, Mr. Robin Jacob, Advocate, Mr. Tom Joseph, Advocate, Mr. Kumar Gaurav, Advocate and Mr. Antony M.P., Advocate, for the Respondent.
Table of Contents
2. Whether seniority should be determined by the rotation (ROTA) principle based on vacancy years or by the actual date of joining. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 )
3. Statutory rules silent on seniority allow executive instructions; however, a three-judge bench previously held that the rotation rule is inapplicable to these specific recruitment rules. (Para 16 , 20 , 21 , 22 , 23 )
4. In the absence of statutory seniority rules, executive instructions apply, but the rotation (ROTA) principle is inapplicable if specifically held by a larger bench. (Para 16 , 20 , 23 )
5. Appeal dismissed. (Para 24 )
6. Can executive instructions determine seniority if statutory rules are silent?
Yes, it is settled law that the determination of seniority can be provided by executive instructions if the subject matter is not covered by the statutory rules. (Para 16 )
7. Does the rotation (ROTA) principle automatically apply to promotional quotas?
No. The court held that the rotation rule is not applicable for determining the seniority of Sub-Divisional Engineers under the 1996 Recruitment Rules, as those rules lack the specific provisions found in previous rules. (Para 20 )
8. How is seniority determined when the rotation rule is inapplicable?
In the absence of the rotation rule and specific statutory provisions, seniority is determined on the basis of the date of joining of the incumbents. (Para 2 , 15 , 17 , 18 )
JUDGMENT :
Ashok Bhushan, J.
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 "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 lis
