1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.14967 OF 2017
VINOD VERMA … APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. … RESPONDENT(S)
J U D G M E N T
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
2
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
3
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
4
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
5
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 redraw 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
costs.”
3. The appellant was not the party to the said
case in Dewan Chand vs. Union of India, TA No.84-HR2009, 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
6
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.
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.
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
7
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 who 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
even if the promotions for two grades under General
Principle 5(ii) takes place through separate DPC’s,
“…the principle of rotation of 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 Central Administrative
8
Tribunal nor the High Court has considered the
relevant OM dated 22.12.1959 and subsequent OMs
laying down principles 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 judgment of this Court in
C.A.No.7830 of 2014(Bharat Sanchar Nigam Limited &
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 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
9
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 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 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,
10
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.
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
applicable.
11
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 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
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:
“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
12
seniority of SDE promoted through seniority-cumfitness 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-HR2009 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 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
13
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 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
14
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
Chand’s 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
21.06.2011.
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 of 2012 (BSNL &
Ors. vs. S. Sadasivan & Ors.). This Court on
12.08.2014 dismissed the said SLP by passing the
following order:
15
“SLP (C) No.35756 OF 2012
In paragraph 3 of the impugned order, the
High Court has observed thus:
“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.”
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 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. Dubey (supra) has finally
determined the controversy and held that ROTA rule
will not be applicable for determining the seniority
16
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.
Paragraphs 2 to 4 of the judgment are as follows:
“2. This appeal by special leave is
directed against the order of 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 as counting of
experience for further promotions, annual
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 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
17
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-cumfitness 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 contradistinction 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 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 examination
consisting of two parts called Qualifyingcum-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 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.”
18
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 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 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. The
19
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. PETITIONER(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.
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 accordingly. 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
20
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. 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 Bench as noted above.
24. We, thus, hold that the present appeal deserves
to be dismissed in view of the 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
the three-Judge Bench of this Court in BSNL & ors.
vs. S.K. Dubey & Ors. decided on 12.08.2014. The
21
appeal is, accordingly, dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
April 02, 2019.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.14967 OF 2017
VINOD VERMA … APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. … RESPONDENT(S)
J U D G M E N T
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
2
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
3
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
4
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
5
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 redraw 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
costs.”
3. The appellant was not the party to the said
case in Dewan Chand vs. Union of India, TA No.84-HR2009, 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
6
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.
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.
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
7
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 who 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
even if the promotions for two grades under General
Principle 5(ii) takes place through separate DPC’s,
“…the principle of rotation of 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 Central Administrative
8
Tribunal nor the High Court has considered the
relevant OM dated 22.12.1959 and subsequent OMs
laying down principles 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 judgment of this Court in
C.A.No.7830 of 2014(Bharat Sanchar Nigam Limited &
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 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
9
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 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 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,
10
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.
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
applicable.
11
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 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
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:
“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
12
seniority of SDE promoted through seniority-cumfitness 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-HR2009 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 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
13
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 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
14
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
Chand’s 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
21.06.2011.
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 of 2012 (BSNL &
Ors. vs. S. Sadasivan & Ors.). This Court on
12.08.2014 dismissed the said SLP by passing the
following order:
15
“SLP (C) No.35756 OF 2012
In paragraph 3 of the impugned order, the
High Court has observed thus:
“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.”
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 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. Dubey (supra) has finally
determined the controversy and held that ROTA rule
will not be applicable for determining the seniority
16
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.
Paragraphs 2 to 4 of the judgment are as follows:
“2. This appeal by special leave is
directed against the order of 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 as counting of
experience for further promotions, annual
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 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
17
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-cumfitness 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 contradistinction 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 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 examination
consisting of two parts called Qualifyingcum-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 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.”
18
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 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 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. The
19
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. PETITIONER(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.
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 accordingly. 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
20
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. 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 Bench as noted above.
24. We, thus, hold that the present appeal deserves
to be dismissed in view of the 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
the three-Judge Bench of this Court in BSNL & ors.
vs. S.K. Dubey & Ors. decided on 12.08.2014. The
21
appeal is, accordingly, dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
April 02, 2019.
