CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Transferred Application No.86 of 2009 With Original Application No.82 of 2008 This the 12th day of January, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) HONBLE SMT. MEERA CHHIBBER, MEMBER (J) T.A. No.86/2009 1. R. K. Mittal, J.E., K-239, Narina Vihar, New Delhi-110018. 2. V. K. ahuja, J.E., 378/12, New Railway Road, Gurgaon-122001. Applicants Versus 1. Delhi Development Authority through Commissioner (Personnel), DDA, Vikas Sadan, INA, New Delhi. 2. Ajit Singh Grover 3. Pratap Chand Gandhi 4. Vijay Kumar Kashyap (SC) 5. Satish Chander 6. Narender Kumar Saxena 7. Kailash Chand Gulati 8. Rajender Prakash Bharral 9. Virender Singh Verma 10. M. S. Dhaliwal 11. Anang Pal Singh 12. Abdul Fajal Zaidi 13. Sarwan Kumar 14. Krishan Gopal Kaushal 15. Nanak Chand Bhardwaj 16. Hitesh Kumar Sharma 17. Jagvir Singh (SC) 18. Syed Arif Ali 19. Ajit Singh 20. Virender Kumar Ahuja (Respondents 2-2o are through
Commissioner (Prsonnel), Delhi Development Authority, Vikas Sadan, INA, New Delhi). Respondents C.M. No.16292/2007 (for impleadment)
1. Rajesh Mishra S/O N. P. Mishra, R/o 1844, Block AK-4, Indirapuram, Ghaziabad.
2. R. S. Sheoran S/o Risal Singh, R/o Flat No.6, Officers Colony, Sector 15-A, Faridabad.
3. Rakesh Mehta S/o K. P. Mehta, R/o 773, Sector 37, Faridabad.
4. Sahdeo Kumar S/o L. P. Singh, 1-3/31, Sector 16, Rohini, Delhi.
5. Jitender Mittal S/o Sripal Jain, 115 (F.F.), Sabita Vihar, New Delhi-92.
6. C. D. Kaushal S/o Ram Sarup, R/o F-196 C, G.T.B. Enclave, New Delhi-110093.
7. Rajender Kumar Garg S/o Harbans Lal, R/o 42 (FF) Sabita Vihar, New Delhi.
8. Krishan Kumar S/o Chander Bhan, R/o 215, Himgiri Aptts., J Block, Vikaspuri, New Delhi.
9. Ram Bahadur S/o Janki, R/o 103 Nilgiri Aptts, Sector 9, Rohini, New Delhi. Applicants O.A. No.82/2008 1. Amarjeet Singh S/o HJagat Singh, R/o 9-A, Adarsh Kunj Society, Plot No.42, Sector 13, Rohini, Delhi-110085. 2. Subhash Chander S/o Kishori Lal, R/o E-2/191, DDA LIG Flats, Sector 11, Rohini, Delhi-110085. 3. Ashok Kumar Aggarwal S/o Charan Das, R/o BB-39 F, Janakpuri, New Delhi. 4. Krishan Lal s/o Chunni Lal Khurana, R/o 27 Savera Apartments, Sector 13, Rohini, Delhi-110085. 5. Praveen Kumar Sharma S/o B. S. Sharma, R/o SD-346, Shastri Nagar, Ghaziabad (U.P.)-201002. Applicants Versus 1. Delhi Development Authority through its Vice Chairman, INA , Vikas Sadan, New Delhi-110023. 2. Chief Legal Advisor, Delhi Development Authority, INA, Vikas Sadan, New Delhi-110023. Respondents Shri K. K. Rai, Senior Advocate and with him Shri Rajat Rathee, Advocate for applicants in TA-86/2009. Shri Rahul Sharma, Advocate, for applicants in OA-82/2008. Shri Arun Birbal, Advocate for Delhi Development Authority in both cases. Shri A. K. Behera, Advocate, for respondents 2 to 5 in TA-86/2009. O R D E R Justice V. K. Bali, Chairman:
This case has a chequered history. Parties to this litigation are Junior Engineers who came to be employed with the respondent Delhi Development Authority (DDA) with diploma in engineering who later during their service with DDA, obtained degree in engineering, on one side, and those who came with degree in engineering in engineering to begin with. In the matter of precedence in seniority, they have locked horns for more than two decades by now. In view of the extant rules, those who may have experience of two years and are diploma holders, are eligible to be considered for their appointment as Junior Engineers, whereas those who may have acquired the qualification of degree in engineering, are eligible for appointment on the post of Junior Engineer without having any experience to their credit. For the next higher promotional post of Assistant Engineer, there is a fixed quota. Fifty per cent of the posts of Assistant Engineers are meant for quota of direct recruits, whereas as regards the remaining 50% quota, 25% posts are to be filled by those who come on the post of Junior Engineer with degree qualification. They are eligible for consideration of their promotion after having gained experience of three years on the post of Junior Engineer. Remaining 25% quota is for those who come with the qualification of diploma in engineering, but their eligibility for consideration for promotional post is experience on the post of Junior Engineer for a period of eight years. In this marathon litigation the crucial issue has been as to whether the Junior Engineers who initially came with the qualification of diploma in engineering but during service acquired the qualification of degree in engineering would count their service as Junior Engineer for becoming eligible to the next higher promotional post of Assistant Engineer from the date they came into service, and if they had the eligibility for promotion as was required for degree holders by the time they obtained the said degree, they should be eligible and be immediately promoted, or if they considered themselves in the quota of degree holders, they should await the period required to become eligible, as required in the said quota. Surely, whereas those who initially came with the qualification of diploma in engineering and got hybrid by obtaining degree in engineering, would canvass for their promotion immediately on acquisition of qualification of degree in engineering, those who initially came on the post of Junior Engineer with degree in engineering, would want them to stand in queue with them and in their quota from the date they possessed the qualification of degree.
2. There have already been two phases of litigation on the issue as mentioned above, as has been noted by the Honble Supreme Court in Shailendra Dania & Others v S. P. Dubey & Others [(2007) 5 SCC 535]. Whereas, the first phase ended in the High Court, the second phase culminated into the order passed by the Honble Supreme Court in Shailendra Daina (supra). The third phase, which starts now, we only hope and wish may not last that long, as surely, if that may happen, the whole service career of the rival parties would go in litigation. When these two matters came up for hearing before a Division Bench, while recording order dated 9.9.2009, the same were referred to a larger Bench. The primary reason for referring the matter to the larger Bench was that after decision of the Honble Supreme Court in Shailendra Dania (supra), whereas one aspect of the case attained finality, the other was still on hot pot. Whereas, for the unsettled part of the controversy, there were two contradictory judgments, one recorded by the High Court of Delhi and the other by a coordinate Bench the High Court of Madras, there was a dilemma with the Tribunal as to what should be done in these circumstances. The matter, with a view to follow the procedure in the circumstances as mentioned above, vide order dated 9.9.2009 was referred to a larger Bench.
3. When the matter came up before the Full Bench, it became difficult to resolve the controversy as pointed out in the order of reference. We were unable to think of any solution to the problem, nor was one even suggested by the learned counsel representing the parties. However, inasmuch as, whether at the time when the matter was referred to the Full Bench or when order dated 24.9.2009 came to be recorded by the Full Bench, an appeal against the judgment of the High Court of Madras was pending in the Supreme Court, wherein leave to appeal was granted, we chose to adjourn the matter sine die awaiting decision of the Supreme Court in the appeal that stood filed and admitted against the Division Bench judgment of the Madras High Court. While however, adjourning the matter sine die, we noted vide a detailed order all the essential parts of the case. It may not be necessary to deal with the same yet again. We could have made the order being recorded now in continuation of the order dated 24.9.2009, but inasmuch as, we are now passing the final order, we will choose to reproduce the relevant part of the said order, thus:
The Division Bench while hearing the matter had noticed that there appeared to be conflicting views as between the Delhi High Court and the Madras High Court, as could be gathered from the decision of the Delhi High Court in Vasdev Chhugani Vs. A.K. Kashyap & Ors. rendered in LPA 473/2002 and N. Sureshnathan & Ors. Vs. Govt. of Pondicherry & Ors., passed on 27.01.2009. While shaping the reliefs, the judgments could not have been overlooked and one of them at least required to be relied on. The reference was made in the above context.
4. Of course, the Full Bench decision (A.K. Dawar), which relied on Indian Petro Chemicals Corporation Vs. Shramik Sena (2001 (7) SCC 469), substantially answers the issue nevertheless we find there are twilight areas which are also to be gone into in depth. Mr. G.D. Gupta and Mr. Ramji Srinivasan appearing for the rival parties and Mr. Birbal appearing on behalf of the DDA had addressed us on the merits of the case and here also the main contest was on the course to be adopted by the Tribunal, whether to rest the judgment on the decision of the Madras High Court or on the law that had been laid down by the Division Bench of Delhi High Court. If we accept one of the decisions, the resultant situation would be that the law laid down by the other High Court requires to be overlooked. In service matters, this is likely to lead to disastrous situation. In the background, we may briefly advert to the facts as might be necessary.
5. OA 82/2008 is filed by a few officers who are working in the DDA as Junior Engineers. They had entered service during the period 1983-85. At the time of selection, they were in possession of the minimum qualifications prescribed, namely, Diploma in Engineering and two years experience. In the course of their service, they had acquired qualification of Degree in Engineering. The post of Junior Engineer was to be filled up by direct recruitment alone. Although the minimum qualification was diploma, persons, who possessed the higher qualification of Degree in Engineering, also could have responded. Such persons, as gatherable from the rules, were not required to possess any previous experience.
6. The next higher post available for promotion to the group is that of Assistant Engineer. 50% of the vacancies were to be filled up by Graduates in Engineering by methods of direct recruitment/deputation. The remaining 50% were to be filled up on promotional basis from the Junior Engineers. Of the above, 50% of the posts were to be filled up by promotion of diploma holders with eight years qualifying service. The balance 50% were to be filled up by Graduate Junior Engineers, who had completed three years of qualifying service. The genesis of the dispute arose out of the circumstance that some of the persons, who had commenced service as Junior Engineers as Diploma holders in Engineering, had later on acquired Degree in Engineering. They had chosen to put up a claim that straightway they became entitled for promotion, since they already were having three years service in the DDA to their credit and had also seniority, as they had entered service on an earlier date. Recognition of such a claim would have directly upset the aspirations of Graduate Engineers, who already might have acquired the three years experience and were waiting for promotion as qualified. Legal proceedings started almost at this context.
7. It may be strange to note that such a claim had, in fact, come up because of a recommendation suggested by the DPC in early 1970. By an executive order during 1971, the service rules were sought to be modified, providing for accommodating diploma holders, who had acquired Graduation, in the graduate quota for promotion. A footnote had been added, to read that a person, who acquired Degree, will also be entitled to get promotion in the graduate channel. A weightage for past service viz of three-eighth period or a maximum of one year service as Graduate Engineer would have been admissible if he possessed two years of regular service as Graduate Engineer after obtaining the Degree. This had been subject matter of challenge, but later on a more beneficial order in favour of the group had come to be passed on 20.09.1990 whereby, it had been stipulated that as soon as a diploma engineer came to possess degree his whole service would be taken notice of, as qualifying service for purpose of promotion. Of course, this order expressly provided that initial seniority would not be taken notice of. The order of 20.09.1990 as above had been issued, clarifying the situation that the Recruitment Rules recognized only a Degree or diploma for purpose of promotion and it did not stipulate any minimum experience after acquisition of the Degree. This too had been challenged. The challenge was initially repelled. But, however, in LPA 43 of 1991, the offending orders and the consequential promotions conferred had been set aside.
8. We may notice that as of now the stand of DDA is that the orders issued by them on such lines were erroneous, and they do not at all support such a view which had been taken earlier. The diploma holders who acquire degree, will have to be assigned a position, below that of a degree holder, as on the relevant date.
9. It may, however, not be necessary to dwell upon in these areas, since the dispute and issues (about the issue of eligibility) stands settled now by the decision of the Supreme Court in Civil Appeal Nos. 2219-2222 of 2002 on 17.04.2007, the Court holding that a diploma holder, who acquires Graduation while in service necessarily will have to have three years of experience as Graduate Engineer before he gets eligibility for promotion as an Assistant Engineer.
10. The Supreme Court had occasion to pronounce on this issue while considering an appeal filed from the decision of a Full Bench of the Delhi High Court dated 25.01.2002, in S.P. Dubey Vs. MCD & Ors. (CWP 4696/1993). Full Bench was considering the contentions raised in a batch of writ petitions, including CWP 2819/93. The Full Bench had held that the experience gained by Junior Engineer while he was a diploma holder could have been sufficient enough for him to be considered as eligible for promotion, the moment he had acquired graduation. The aggrieved persons had taken up the matter to Supreme Court and Judgment dated 17.04.2007 referred to earlier had come to be passed in the above context reversing the judgment of the Full Bench and declaring the law that service for the purpose of promotion should be service rendered after acquisition of graduation. As noticed by the Supreme Court, at least there was no dearth of legal proceedings at any point of time during the last three decades, on this issue.
11. It appears that although the Apex Court had thought it fit to give a quietus to the issue, disputes have reemerged with greater energy. While disposing of the Civil Appeal, in Paragraph 23 of the judgment, the Supreme Court had held that other questions are left open, one of them being whether the initial credit of seniority of the diploma holders requires to be noticed as an advantage for promotion after acquisition of degree. The Apex Court had refrained from expressing any opinion on those points. After answering the question, the matters had been remanded. TA 86/2009, now under our consideration, was one among the group of cases where the graduate engineers had prayed for a declaration that they were entitled to promotion from the date they acquired eligibility of three years service, and were not obliged to surrender their rights to the group, who had come to possess degree during the course of their service (CWP 2819/1993). It had been remanded back by the Supreme Court, and later on has been transferred to this Tribunal, to be adjudicated afresh on merits.
12. In the meanwhile, OA 82/2008 had come to be filed. The question highlighted is as to whether a diploma holder who had entered service earlier than a graduate, would be entitled to the benefit of total seniority, in terms of the seniority list in force, and whether he will get precedence in the matters of promotion as a graduate who had credit of three years service after obtaining the higher qualification.
13. After the judgment of the Supreme Court, the DDA had been proceeding on the basis that the diploma engineers after acquisition of graduation could not have put up a claim on the basis of a total seniority. Promotional orders were being issued to graduate engineers who had acquired eligibility before them. OA No. 82 of 2008 had come to be filed in the aforesaid circumstance, the applicants seeking a relief that DPC was to proceed strictly as per the finalized seniority list of 1996 and 1998 and the respondent DDA was not to act upon legal advice to the contrary that had been received by them. According to them, the issue had been left open by the Supreme Court and the DDA was to proceed in the matter, taking notice of the exposition of law as had been made in R.B. Desai & Ors. Vs. S.K. Khandolkar (1999 (7) SCC 74). According to Mr. Gupta, the claim could not have been disputed, since the Supreme Court there, had in unambiguous terms held that although eligibility might be a relevant object, when both the competing persons had eligibility at the time of consideration, seniority was to govern the situation. Senior counsel, on instructions, submitted that the group represented by him had to be considered as graduates alone, and were eligible to be accepted as in the graduate stream, and the overall seniority in the cadre could not have been overlooked. Counsel asserted that Supreme Court unambiguously had held that unless the rules specifically provided for conferment of advantage to a candidate with earlier eligibility, the date of seniority should alone have relevance. This is the situation at hand.
14. Counsel had also invited our attention to the decision of the Madras High Court in N. Sureshnathan Vs. Governor of Pondicherry & Ors, decided on 27.01.2009, where the decision of the Administrative Tribunal had been confirmed, and the counsel had opined that the service experience as an eligibility criterion cannot be read to be any other thing because this quota is specifically made to the degree holder junior engineers. The Court had noted that an earlier Division Bench had taken such a view (WP 11236/2000), and although the matter has been carried to Supreme Court, the interim orders presently in force specifically made it clear that the judgment as such was not being stayed; only there was protection given from possible reversions following the judgment.
15. It is evident that OA 150/2006 had been filled before the Madras Bench by persons who had secured graduation in the course of their services, and they had contended that a review DPC requires to be held; their total seniority is to be taken note of and promotions given. The Bench had thereupon held that in view of the judgment in CWP 11236/2000, respondents had no option, or wait for the judgment of the Supreme Court, and they were obliged to draw up a seniority list as directed, and proceed with the exercise of promotion. It was the above decision that was challenged in the High Court. Judgment dated 27.01.2009 (N. Sureshnathan Vs. Governor of Pondicherry & Ors.), affirmed the view taken by the Tribunal, also noticing the Bench decision on the issue.
16. It was argued that since the Supreme Court judgment in Shailendra Danias case (2007 (5) SCC 535) had been specifically noticed by the later Madras decision, it binds these proceedings, and the legal position would be that a diploma holder, would be entitled to carry his seniority position to his advantage when promotions were being made, in the graduate quota as he had acquired graduation and had rendered three years service thereafter. Mr. Gupta, therefore, submits that the existing seniority list required to be taken notice of. He points out that it was taking notice of these aspects that an interim order had been passed by Division Bench in MA 785/2009 and it should be, therefore, restored and continued. Judicial propriety required the Tribunal to adopt this course.
17. On the other hand, learned counsel for the opposing parties submit that because of the judgment of the Delhi High Court in LPA 473/2002 (Vasudev Chhugani), it would not have been possible for the rival group to urge any such contentions at all. Nor was the Tribunal to accede to the suggestions that had been raised by the diploma holder engineers. The decisions of the Madras High Court have not attained finality and they are pending in the Supreme Court since leave has been granted already. Additionally, in Vasudev Chhugani, the self same issue had been raised and stands answered. In all probability, this had not been brought to the attention of the Madras High Court. There was specific argument on the basis of the seniority list of 1996 and 1997, as has been agitated in the present application. Taking notice of the totality of the circumstances, it had been held that the persons who are diploma holders but who had acquired degree subsequently could not have claimed seniority over a degree holder who became eligible for promotion in the channel of degree holders years earlier. Further specifically, it had been observed that the erstwhile inter se seniority, if any, between the appellant and the respondents had lost its significance. Learned counsel submits that when the High Court, in a judgment to which the DDA was a party had held without any reservations that the seniority list is irrelevant for resting claims of personnel in the services of the organization, such a list could not have been infused with life by any process of interpretation. The list was to be considered as no more in existence. The decision required full compliance. Steps for drawing up a new list were in progress.
18. As about the seniority lists, on which reliance was placed, counsel pointed out that they came to be prepared consequent to certain directions passed in earlier legal proceedings, which by now had become irrelevant by the fresh exposition of law. A new list was in the process of preparation and the efforts of the contesting parties could be visualized as for stalling such essential exercises.
19. Learned counsel representing the graduate engineers had also invited our attention to R.B. Desais case. The said decision had partly rested on principles of long term practices being followed by the Government. But that was not the case of DDA. In fact, a group, who are ineligible for promotion, for the first time, got an advantageous order, only in 1971, that some weightage was to be given to them. It was straightaway under challenge. Although in the year 1990 office proceedings were issued giving them total benefits, these proceedings have been set aside. The seniority list has been prepared at those turbulent times. There was, therefore, no consistent practice of giving promotions to diploma holders who acquired degree overlooking the claims of degree holders, who had earlier become eligible for promotion on completion of three years service. The theory of long past practices is, in fact, a hoax.
20. This appears to be the factual scenario. We find that there is conflict while working out a process of promotion, when the decisions of the Delhi High Court and the Madras High Court are simultaneously available. Since the specific issue is now pending before the Honble Supreme Court, it may not be prudent for us to add on further confusion to the existing melee. Learned counsel for the DDA submits that they are obliged to follow the directions as have been incorporated in Vasudev Chhugani and a deviation would be at the risk of contempt. It is also pointed out that in TA 108 of 2007 and connected cases, in respect of architectural wing of the DDA, more or less the same issue had arisen and a Bench had on 17.02.2009 held that the reckonable date would be the date of eligibility thus, overruling the contentions raised by the applicants that on acquisition of degree for purpose of promotion the entire service requires to be taken notice of.
21. We feel that so long as the issue is not decided by the Supreme Court one way or the other, it may not be expedient to choose as between the two judgments of the two High Courts. We adopt the stand that no positive orders are to be put in operation to restrain the DDA while dealing with the matter as per advice received by them. Further, it is perceived that a few more cases remanded by the Supreme Court, on the subject, are yet to be notified for hearing.
22. We, therefore, adjourn the matters sine die. The matters are to be listed again, on application made by either of the parties. We dismiss MA 1752/2009 as we do not think it will be in public interest to pass interlocutory orders restraining the freehand of the DDA in matters of promotion. Promotions already made and promotions likely to be made hereafter to the cadre of Assistant Engineers, however, will be subject to further orders that may be passed in the proceedings.
4. When the Honble Supreme Court decided the appeal against the judgment of the Madras High Court, on application, these matters have been revived. The Supreme Court has allowed the appeal preferred against the judgment of the Madras High Court by setting aside its judgment. Even though, therefore, as it may appear to us that there is hardly any scope for further discussion in the matter, but as usual, arguments in a service dispute, and that too, pertaining to inter se seniority, would never die. The learned counsel representing the parties, and in particular, representing those who had come into service initially on the strength of their qualification of diploma, would still contend that they would be senior to degree holders on acquisition of their hybrid qualification of degree in engineering, and that their initial service on the posts of Junior Engineers cannot be as if of no use and consequence. The counsel representing the degree holders would, however, relying on the judgment recorded by the Honble Supreme Court in Shailendra Dania (supra) and in N. Suresh Nathan & others v Union of India & others [(2010) 5 SCC 692], whereby the judgment of the Madras High Court has been set aside, as also the judgment dated 14.2.2007 of the Division Bench of the High Court of Delhi in LPA No.473/2002 in the matter of Vasdev Chhugani v A. K. Kashyap & others, clamour to be senior over and above those who had come into service initially by virtue of their qualification of possessing diploma in engineering.
5. Before we may advert to the rival contentions of the learned counsel representing the parties, we may mention that Shri A. K. Behera, learned counsel representing the group of officers with hybrid qualification, who are respondents in WP(C) No.2819/1993, re-numbered as TA No.86/2009, which was filed by those Junior Engineers with the qualification of degree in engineering, and the applicants in OA No.82/2008 that came to be filed after the decision of the Honble Supreme Court in Shailendra Dania (supra), would want the TA to be dismissed on the ground that the writ petitioners/applicants in TA Shri R. K. Mittal and Shri V. K. Ahuja, who alone had filed the writ petition originally, have since already resigned. Whereas, Shri R. K. Mittal resigned in 2003 or 2004, Shri V. K. Ahuja resigned in 2008. Civil Misc. No.16292/2007 on behalf of eight employees supporting the cause of the original writ petitioners/applicants in the TA for their impleadment was filed in October, 2007 when the matter was before the Honble High Court, wherein neither any notice was issued nor any order was passed impleading them as party applicants. It is contended that insofar as, the original writ petitioners/applicants are concerned, they have no surviving cause of action and the others who made the civil misc. aforesaid have not been impleaded as party applicants, which would virtually mean that there is no petitioner/applicant and, therefore, on this ground, TA No.86/2009 needs to be closed. We do not find any merit in the contention of the learned counsel as noted above. The original writ petitioners/applicants, as regards seniority, would have a surviving cause, as surely if they were to be promoted as per the stand taken by them, they would be entitled to consequential reliefs as may naturally flow from according them higher seniority over and above diploma holders, who acquired the qualification of degree later. When exercise to recast seniority in view of the judgment of the Supreme Court in Shailendra Dania (supra) was underway, OA No.82/2008 came to be filed. Based upon the decision of the Supreme Court in the case aforesaid, the respondent DDA has already prepared the seniority list and made some promotions as well. That apart, it appears from the order dated 24.1.2008 passed by a Division Bench of the High Court, whether notices on the civil misc. aforesaid were given or not, the parties were conscious of such an application, and the Bench seized of the matter had invited arguments as well to be addressed in support of the said application. When the connected writ petitions came up for hearing on 24.1.2008, the Bench recorded the following order:
Counsel appearing for the DDA states that she is not prepared to argue on the impleadment application as she does not have a copy of the said application. She may be furnished a copy of the said application by the applicants during the course of the day. She may contest the application for which she is given two weeks time, but making it clear that on the next date we will take up the pending applications as also the appeal. DDA is also directed to place before us a synopsis of the case along with the seniority list which is stated to have been prepared in terms of the order of the Supreme Court with advance copy to the counsel appearing for the petitioner.
Renotify on 27th March, 2008. In view of provisions contained in Order-I Rule 10(2) of Code of Civil Procedure, the court may at any stage of the proceedings, either upon or without the application of either party, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle the questions involved in the suit, be added. The court has thus suo moto power to implead parties, be it as plaintiff or defendant, to adjudicate upon and settle the questions involved in the case. The Tribunal, we are conscious, is not bound by the strict provisions of CPC. It is to be guided by the principles of natural justice, but the provision contained in Order-I Rule 10(2), in our view, is with a view to advance the cause of justice and can well be said to be a principle of natural justice. We exercise such power and order impleadment of the applicants in civil misc. No.16292/2007 as party applicants. We may mention that but for raising a technical objection nothing on merits could be urged as regards impleadment of the applicants as party applicants in the civil misc. It was not even urged that they would not be necessary or proper parties. It was also not urged that by adding their names in the array of applicants, some additional grounds will become available to the respondents. Still further, once the controversy has to be adjudicated in the OA filed by hybrid Junior Engineers, it would not be equitous to dismiss this TA on the ground as urged by Shri Behera.
6. We have already mentioned that one phase of the litigation, which is as regards the hybrid Junior Engineers occupying or coming against the quota for promotion with those who initially came with the degree qualification, has attained finality in the judgment of the Honble Supreme Court in Shailendra Dania (supra). Even though, the rival parties before the Supreme Court were employees of the Slum Wing, which was erstwhile part of MCD and was transferred from MCD to DDA in 1974, the rules for promotion on the post of Assistant Engineer were the same. The Supreme Court while considering the rival contentions of counsel for parties held as follows:
As a necessary corollary, we are of the view that the diploma-holder Junior Engineers who have obtained a Degree in Engineering during the tenure of service, would be required to complete three years service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers. The quotas in the two streams were held to be in watertight compartment for graduate Junior Engineers and diploma holder Junior Engineers, and neither could claim promotion in the quota meant for the other stream. If the employees with hybrid qualification thus want to be considered in their quota of diploma holders, they may do so if it might suit them, but if they might like to come and rub shoulders with graduate engineers, they will have to count their eligibility from the date they acquired the degree qualification. Their earlier service would not make them eligible for promotion immediately on acquiring the qualification of degree, if by that date they had already put in three years of service. This chapter stands closed by the authoritative pronouncement of the Supreme Court and there is absolutely no scope for any further discussion, nor has one even done by the counsel representing the parties.
7. The surviving dispute is only as regards the fixation of seniority. This is the issue on which there were divergent opinions one by a Division Bench of the High Court of Delhi and the other by a coordinate Bench of the Madras High Court. The facts of the case culminating into decision by a Division Bench of the High Court of Delhi in LPA No.473/2002 in the matter of Vasdev Chhugani (supra) reveal that A. K. Kashyap and others who were degree holders had filed a writ petition in the High Court, which was allowed. It is against the orders of the learned single Judge that the LPA came to be filed by Vasdev Chhugani, who was a hybrid Junior Engineer. He was appointed as Junior Engineer (Civil) by DDA. He was a diploma holder in civil engineering and had two years experience. During the course of service, he passed degree in civil engineering on 3.3.1980 and completed eight years of service as Junior Engineer on 15.3.1980. He was promoted as Assistant Engineer on the basis of diploma and eight years experience w.e.f. 20.1.1981, though he had become eligible on 15.3.1980. His case was that since he had graduated in civil engineering on 3.3.1980 and had completed eight years as Junior Engineer on 15.3.1980, he should have been promoted as Assistant Engineer at least w.e.f. 15.3.1980. One Shri J. S. Yadav, who was junior to the appellant was promoted by DPC as Assistant Engineer w.e.f. 29.10.1980. The appellant made representation to DDA submitting that some of the Assistant Engineers who had joined as diploma holders and had graduated during their service had been given seniority with effect from the date of their joining and some of them had even been promoted as Executive Engineers. The DPC considered his representation and found him eligible for promotion as Assistant Engineer w.e.f. 15.3.1980 onwards as a degree holder, and vide order dated 24.10.1997 his seniority was restored above Shri J. S. Yadav and he was accordingly promoted as Assistant Engineer with effect from the same date as Shri Yadav, i.e., 29.10.1980. Shri A. K. Kashyap who had joined as a degree holder, however, was promoted as Assistant Engineer on 31.12.1980. Aggrieved Shri Kashyap challenged the order dated 24.10.1997 by filing a writ petition alleging that he was superseded without notice. His petition was allowed qua the appellant Vasdev Chhugani. Hence the LPA. As regards the main controversy, the learned single Judge held that once, the appellant (respondent No.3 in the writ petition) had acquired degree and sought to come in the channel of degree holders, he could not claim seniority over persons who were either senior to him in the line of degree holders or who may have been junior to him in the line of diploma holders, but who had acquired degree prior to him, like Shri J. S. Yadav, and that the appellant could not have been placed over Shri A. K. Kashyap since he would get seniority from the date he became eligible as a degree holder. It was further held that in view of the fact that the appellant had became eligible only on 15.3.1980, while Shri Kashyap had become eligible on 11.6.1979, the appellant could not have been placed over him. While confirming the decision of the learned single Judge, the Division Bench observed as follows:
10. Thus, in our view, the learned Single Judge was justified in coming to the conclusion that having qualified as a Degree holder on 15.3.1980, appellant could not have claimed seniority over respondent No.1 who as a Degree holder was eligible for promotion on 11.6.1979 in the channel of Degree holders. In this context the erstwhile inter-se seniority, if any between the appellant and the respondent No.1 loses significance
8. A Division Bench of the High Court of Madras on pari materia rules, however, as mentioned above, took a decision which is in tune with the contention raised by the counsel representing the hybrid Junior Engineers. The facts of the case aforesaid reveal that the Government of Pondicherry, framed the Assistant Engineers (including Deputy Director of Public Works Department) Group B (Technical) Recruitment Rules, 1965, vide notification dated 31.1.1966. The said rules were amended by notification dated 8.8.1986, as per which the post of Assistant Engineer in the Public Works Department, was a selection post and appointment to the 20% of the posts of Assistant Engineer was to be by direct recruitment, and to the 80% of the posts by promotion. 50% of the promotion quota was to be filled by Section Officers (Junior Engineers) possessing a recognised degree in civil engineering or equivalent with three years service in the grade, failing which Section Officers holding diploma in civil engineering with six years service in the grade, and remaining 50% of the promotion quota was to be filled up by Section Officers (Junior Engineers) possessing a recognised diploma in civil engineering with six years service in the grade. It would be unnecessarily burdening the judgment to trace the earlier litigation between the parties. Suffice it may, however, to mention that in the earlier bout of litigation, the Tribunal held vide order dated 9.1.1990 in OA No.553/1989 that when the recruitment rules required three years service in the grade, the Section Officers (Junior Engineers) who ceased to be mere diploma holders having acquired the degree qualification, had to be regarded as having total experience put in the grade of Section Officers and after acquiring the degree qualification, and there was nothing in the recruitment rules to warrant exclusion of a part of the experience acquired by such Junior Engineers while functioning in the grade of Section Officers. The Tribunal directed that the cases of the applicants in the OA be considered for promotion to the post of Assistant Engineers on par with other degree holder Junior Engineers taking due note of their total length of service rendered in the grade of Junior Engineer and such a consideration should be alongside other Junior Engineers, who might have acquired the necessary degree qualification earlier than the applicants while holding the post of Junior Engineers. This judgment of the Tribunal was challenged before the Supreme Court in Civil Appeal No4542/1991, reported as N. Suresh Nathan v Union of India [1992 Supp (1) SCC 584], which, while interpreting rule 11 of the Rules, held that the period of three years service in the grade required for degree holders as qualification for promotion in the category of degree holders must mean three years service in the grade as a degree holder and, therefore, that period of three years would commence only from the date of obtaining the degree and not earlier, and this interpretation of rule 11 was in conformity with the past practice followed consistently by the Government, and that the Tribunal was not justified in taking the contrary view, allowed the appeal. After decision of the Supreme Court, when those who came into service with degree in engineering were promoted, the Assistant Engineers with hybrid qualification challenged their promotion before the Tribunal in OA No.359/1997 contending that the Supreme Court in N. Suresh Nathans case had only held that three years service required for eligibility for the promotion quota reserved for the category of degree holders or equivalent should be considered from the date of acquiring the degree or equivalent, but had not decided the question of seniority as between degree holders or equivalent and diploma holders in the grade. This is the precise plea raised by the Junior Engineers with hybrid qualification in OA No.82/2008. The Supreme Court also in Shailendra Danias case had kept the question of seniority open. The matter was contested and the Government of Pondicherry in its reply filed in OA No.359/1997 before the Tribunal mentioned that the DPC met on 29.9.1996 and keeping in view the directions of the Supreme Court in N. Suresh Nathans case it selected the Section Officers/Junior Engineers to the post of Assistant Engineers by preparing two lists. It clarified in the reply that in the first list those who had joined as Section Officers/Junior Engineers with degree in civil engineering were placed above the Section Officers/Junior Engineers who had joined service with diploma in civil engineering but had subsequently acquired degree in civil engineering, and in the second list, Section Officers/Junior Engineers who had joined with diploma were placed in order of seniority counted from the date of joining in the grade. The Tribunal dismissed the said OA after holding that the Supreme Court had already taken a specific view in N. Suresh Nathans case construing the recruitment rules and that the applicants should not be allowed to raise the point once again, and the judgment of the Supreme Court was binding on the Tribunal. Aggrieved, those with hybrid qualification filed a writ petition before the Madras High Court, which held inter alia that in N. Suresh Nathans case the Supreme Court had only decided the question of eligibility for promotion to the post of Assistant Engineer meant for the category of degree holders or equivalent, but did not decide the question of seniority of Section Officers/Junior Engineers who had acquired degree in civil engineering or equivalent after joining as Section Officers/Junior Engineers and, therefore, the judgment of the Supreme Court would not operate as res judicata. The Madras High Court further held that the entire service of a person concerned even before acquiring the degree in civil engineering or equivalent had to be counted for the purpose of seniority and promotion, and directed that a review DPC be held to consider the question of promotion of the petitioners before it vis-`-vis respondents 2 to 8 and other eligible persons, who had become eligible by the date of sitting of the DPC in 1996, and accordingly allowed the writ petition. Thus, an appeal before the Supreme Court by those who had initially came into service with degree in civil engineering. While setting aside the judgment of the Madras High Court, the Honble Supreme Court held as follows:
49. In our considered opinion, therefore, the practice adopted by the Government of Pondicherry on the advice of UPSC of counting the service of the eligible candidates from the date of acquisition of the degree in Civil Engineering by them and the impugned judgment and order of the High Court directing that the entire service of eligible candidates, both prior and after acquisition of the degree of Civil Engineering by them, would be counted for the purpose of promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules are contrary to the Rules made under Article 309 of the Constitution and the fundamental right guaranteed under Article 16 of the Constitution.
9. We are of the considered view that after decision of the Supreme Court in N. Suresh Nathans case, nothing survives further for our consideration. It is absolutely clear from the judgment in Shailendra Danias case that diploma holder Junior Engineers who had obtained degree in engineering during the tenure of their service would be required to complete three years service on the post after having obtained the degree qualification to become eligible for promotion on the higher post if they claim promotion in the channel of degree holders, their being a quota fixed for graduate Junior Engineers and diploma holder Junior Engineers for promotion on the post of Assistant Engineer. This is what precisely has been said by the Supreme Court in Shailendra Danias case. Insofar as the question of seniority which was left open is concerned, the same now stands clinched in view of the judgment of the Supreme Court in N. Suresh Nathans case. There is no argument on behalf of diploma holders with hybrid qualification that the rules as were subject matter of interpretation by the Supreme Court in N. Suresh Nathans case, were in any way different from the rules applicable to the litigating parties before us. In fact, when Shailendra Danias case came to be decided, the Supreme Court for its decision inter alia placed reliance upon the judgment in N. Suresh Nathans case in the first bout of litigation. When the Tribunal had decided N. Suresh Nathans case in the first round of litigation, appeal against the orders passed by the Tribunal was competent only before the Supreme Court. Now that in view of the judgment of the Supreme Court in L. Chandra Kumar v Union of India [(1997) 3 SCC 261] writ is competent before Division Bench of the High Court, the order recorded by the Tribunal this time was challenged before the High Court of Madras which upset the judgment of the Tribunal, and which judgment of the High Court has been set aside by the Supreme Court.
10. In view of the discussion made above, we hold that insofar as the seniority on the post of Junior Engineer is concerned, there is no dispute that one who came to be appointed earlier in point of time would be senior irrespective of the qualification that he held when he was appointed. Junior Engineers with their respective qualifications for the purpose of promotional post of Assistant Engineer have to be in their watertight compartments as per quota of promotion fixed for them. If, however, a Junior Engineer with diploma in engineering may, during the currency of his service, improves upon his qualification by obtaining degree in engineering and may thus wish to count his seniority with Junior Engineers who initially came into service with degree in engineering, his seniority vis-`-vis degree holders would count from the date he may have acquired the qualification of degree in engineering. If in a given case, it may suit a hybrid diploma holder to be promoted in the quota of diploma holders only, he can do so, but in case after obtaining degree in engineering, he may like to be promoted in the quota meant for degree holders, he would be junior to the degree holders if he has obtained degree in engineering after the Junior Engineer who has come into service initially with degree in engineering. The eligibility of a hybrid Junior Engineer for his promotion on the post of Assistant Engineer, if he may like to be promoted in the quota meant for degree holders, would start from the date when he may improve upon his qualification. We may illustrate A Junior Engineer with qualification of diploma in engineering is appointed in 1990; he improves upon his qualification by obtaining degree in engineering in 1995. If he may choose to be promoted in the quota meant for degree holders, he will be junior to a degree holder who may have been appointed before 1995.
11. There will be no need to remit this matter to the Division Bench as the only question involved in this case is inter se seniority between those who came into service with diploma in engineering and have improved upon their qualification by obtaining degree in engineering, and those who came into service initially with degree in engineering. No other question is involved in this case, and, therefore, it will be an exercise in futility to remit the matter to the Division Bench.
12. For the reasons as mentioned above, whereas TA No.86/2009 is allowed, OA No.82/2008 is dismissed. The respondent DDA would work out seniority in the manner as indicated above and promotions to the post of Assistant Engineer shall be made accordingly. We find that the opinion dated 9.3.1993 of DOP&T as regards making promotion on the post of Assistant Engineers after decision in Shailendra Danias case is in consonance with the view which we have taken as above. The same, insofar as is relevant, reads as follows:
3. The main question to be answered is whether in view of the separate eligibility and quotas prescribed for the degree and diploma holders for promotion to the grade of Asstt. Engineer, the seniority of a diploma holder should undergo a change vis-`-vis degree holder entrants on his acquiring a degree. The cadre of Junior Engineers whether diploma holders or degree holders is an integrated cadre with common recruitment rules in which a diploma in engineering has been prescribed as minimum qualification. The recruitment is on the basis of a common competitive evaluation. Therefore, the select lists drawn at the time of recruitment will have to govern the seniority of all JEs. Of course, while effecting promotions to the two respective quotas earmarked for diploma holders and degree holders an eligibility list based on the date of completion of qualifying service will have to be prepared. However, if a diploma holder acquired a degree thereby becoming eligible for the quota meant for degree holders, no change in his seniority vis-`-vis existing degree holders would result, although in view of the Court Judgments, he would become eligible for promotion in the degree holders quota only after three years from the date of acquisition of the degree. Promotions which have already been made, as per the opinion mentioned above, would be protected and further promotions, as and when made, shall also be made accordingly.
13. In view of the peculiar facts of the case, costs of the litigation are made easy.
( Meera Chhibber ) ( L. K. Joshi ) ( V. K. Bali ) Member (J) Vice-Chairman (A) Chairman /as/