Union of India and Others vs Central Administrative Tribunal, Chandigarh Bench and Others

Sanjay Kishan Kaul, C.J.—Respondents No. 2 and 3 (original applicants), joined the services of the petitioner-Department on 04.01.1984 and 08.05.1991 in the capacity of Peon and Chowkidar, in Class-IV, respectively.

It is the common case of the parties that as per the Military Engineer Services (Assistant, Upper Division Clerk and Lower Division Clerk) Recruitment Rules, 1999 (hereinafter referred to as ''the said Rules''), the avenue of promotion is to the post of Lower Division Clerk (LDC), where 10% vacancies are to be filled in from Group ''D'' non-industrial employee having rendered minimum of 5 years service with requisite educational qualifications and typing limit of not less than 30 words per minute. The mode of appointment is "Selection-cum-Seniority".

It is the case of respondents No. 2 and 3 that the petitioners used to hold a written test despite absence of provision for such test. The said two respondents appeared in the written test in December 2000 and were declared as "passed". They were, however, not promoted for the reason that the number of vacancies for the post of LDC were actually six in the General Category and the said two respondents did not figure in the merit, being at Sr. No. 8 and 16, respectively. It appears that the respondents did not take the examination thereafter in the year 2004-2005 (no examination having been held from 2001 to 2003) but filed OA in the year 2004 in the Central Administrative Tribunal, Chandigarh Bench, making a grievance of the methodology of holding a test. In the alternative, their plea was that they should be promoted on the basis of the result of test of year 2000 qua subsequent vacancies.

The OA was resisted by the petitioners before us. It is their say that the selection on merit was based on instructions in the Standard Operation Procedure (SOP) dated 04.08.19997. A panel used to be prepared for a particular year which stood cancelled after filling up all the vacancies existing in that year. It is in the year 1999 that fresh recruitment rules for the post of LDC were issued by way of selection-cum-seniority and fresh SOP was issued on 17.07.2004. The delay in holding the examination arose on account of the time period spent in consultation for issuing the fresh SOP. The Tribunal, however, found that as per the rules 10% promotions from Group ''D'' employees had to be made and no other method was prescribed. Simultaneously, it was observed that the Tribunal would not like to unsettle the things already settled four years back on the basis of 2000 examination. No DPC had been held for the subsequent years and since there was no requirement to hold the written test, a direction was issued that the case of respondents No. 2 and 3 be considered for promotion to the post of LDC under the 10% quota. This order was passed on 05.08.2005, directing the needful to be done without the requirement of a fresh written test.

The aforesaid order has been assailed in the present writ petition under Article 226 of the Constitution of India and though there is no specific stay of the impugned order, on 22.05.2007, the contempt proceedings initiated before the Tribunal, were stayed, which amounted to a licence to the petitioner not to implement the impugned order.

We have heard learned counsel for the parties.

The preliminary objection advanced on behalf of the petitioner is that the Original Application was filed after more than three years of the cause of action arising as the D.P.C. was held on 28.03.2001 and respondents No. 2 and 3 were not promoted on account of lack of sufficient number of vacancies. Thus, on this short ground alone, there was no occasion to entertain the petition with so much delay and latches ( State of Karnataka and Others Vs. S.M. Kotrayya and Others, ).

In so far as the merits of the controversy is concerned, it revolves around the issue as to whether the suitability of the candidate ought to be judged by holding the departmental test where the criteria for promotion was selection-cum-seniority. In this behalf, a Division Bench of Delhi High Court in case Harsudha Vs. Hon''ble the CJ., of Delhi High Court and another, has opined in favour of the plea of the petitioner. In case of parameter of seniority-cum-suitability, the question arises how to judge the suitability and in this regard it was opined that if test is prescribed to measure the skill, ability and proficiency of the candidate, it undoubtedly serves the purpose of the ''Rule'' so framed and no fault can be found qua the same.

The aforesaid two aspects are thus enough to shut out the claim of respondents No. 2 and 3. We may add that it appears that whole exercise before this Court has been largely fruitless as we had concluded the arguments on the last date of hearing and had proceeded to judgment when there were some facts raised before us which were as to transpired after the impugned judgment. Learned counsel for respondents No. 2 and 3 sought to make out a case that one of the respondents had been granted promotion and that too without holding a test. We had thus called upon the concerned respondents promoted to be present as well as the counsel for the petitioner/Union of India to obtain the requisite instructions.

It now transpires that Rules were amended vide Notification dated 18.08.2004 by enhancing the promotion percentage from 10 to 15% with 5% of those 15% based purely on seniority. Respondent no. 2 got his promotion under the said quota of 5% on 14.09.2013. As far as respondent No. 3 is concerned, he opted for different cadre, appeared for test and was promoted as far as back on 16.04.2008. Thus, both respondents No. 2 and 3 have earned their promotions but in different manners.

As a result of the aforesaid, the impugned order dated 05.08.2005 is set-aside but the grievance of respondents No. 2 and 3 really does not survive in view of they having earned their promotions subsequently in different manner.

Petition is accordingly disposed of.