NARESH KUMAR GUPTA vs UNION OF INDIA & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: 27th May, 2024
% Judgment Pronounced on: 18th July, 2024

REVIEW PET. 10/2022 & CM No.2146/2022 in
+ W.P.(C) 4526/2021

NARESH KUMAR GUPTA ….. Petitioner
Through: Mr C Mohan Rao, Sr Adv with Mr Lokesh Kumar Sharma, Adv.
versus
UNION OF INDIA & ORS. ….. Respondents
Through: Mr Hanu Bhaskar, CGSC and Mr Ravi Kant, Adv. for UOI.
Mr Vaibhav Kalra and Ms Neha Bhatnagar, Advs. for R-5 to 8.

CORAM:
HON’BLE MR. JUSTICE RAJIV SHAKDHER
HON’BLE MR. JUSTICE AMIT BANSAL

[Physical Hearing/Hybrid Hearing (as per request)]

AMIT BANSAL, J
CM No.2146/2022
1. This is an application moved on behalf of the petitioner seeking condonation of delay in filing the review petition.
2. According to the petitioner, there is a delay of 236 days in filing the review petition.
3. Having regard to the reasons mentioned in the application, we are inclined to condone the delay.
4. It is ordered accordingly.
5. The application is disposed of.
REVIEW PET. 10/2022
6. By way of the present petition, the petitioner is seeking a review of the judgment of this Court dated 12th April, 2021 vide which the petitioner’s writ petition was dismissed. In the writ petition the following reliefs were sought:
“a. quash the order of the Central Administrative Tribunal (Principal Bench) dated 28.1.2021 passed in OA No. 175 of 2021;
b. quash the seniority list dated 17.1.2020 and direct the respondents to issue a fresh seniority list taking into consideration the increase in the quota of AE’ s in implementation the judgments of this Hon’ble Court dated 5.12.2008 and 22.7.2014;
c) regularly promote the petitioner as EE against vacancy year 2001-2002 w.e.f. 17.12.2004 and grant all consequential reliefs, including seniority; and
d) Any other further order or orders as this Hon’ble Court deem fit and proper under the facts and circumstances of the case.”

7. This court dismissed the writ petition holding that the petitioner cannot be granted seniority from a date before he occupied the post of Executive Engineer (Civil) [hereinafter EE] i.e. from 21st April, 2006. In arriving at the aforesaid decision, the court relied on the judgment of the Supreme Court in K. Meghachandra Singh v. Ningam Siro, (2020) 5 SCC 689.
8. The petitioner filed an SLP against the judgment in review which was dismissed in limine vide order dated 9th August, 2021.
9. As per the Ministry of Urban Affairs and Employment (Department of Urban Development) Central Engineering (Civil) Group ‘A’ Service Rules, 1996 (hereinafter the 1996 Rules), the post of EE is a promotion-based post that is to be filled from feeder categories of Assistant Executive Engineers (Civil) [hereinafter AEEs] and Assistant Engineers (Civil) (degree holders) and Assistant Engineers (Civil) (diploma holders) [collectively hereinafter AEs] in the ratio of 1:1:1.
10. On behalf of the review petitioner, it is submitted that the judgment under review fails to take into consideration that vide OM dated 6th July, 1999 the unfilled vacancies in the post of EE from the quota of AEEs were diverted to AEs. The said diversion was upheld by two separate judgments of this Court in Central Engineering Service Class I Association (Dr.) v. Union of India, 2008 SCC OnLine Del 1307 and in W.P(C) 840/2003 titled Gurbaaz Singh and Ors. v. UOI & Ors decided on 22nd July, 2014. Furthermore, the respondents have wrongly placed reliance on the judgment in Uttaranchal Forest Rangers’ Assn. (Direct Recruit) and Others v. State of U.P and Others, (2006) 10 SCC 346 to determine the seniority of the review petitioner. The said judgment pertained to illegal promotions and is hence not applicable to the facts of the present case.
11. The respondents no.1 to 4 were the official respondents before the Central Administrative Tribunal (CAT). They have not filed a Reply to the present Review Petition, however, in their Reply filed before the CAT, they had stated that the impugned seniority list dated 17th January 2020 was prepared in accordance with the law laid down by the Supreme Court in Uttaranchal Forest Rangers’ Assn (supra). It was also submitted that before the final seniority list was published, objections were duly invited, which were considered before publishing the final list.
12. The respondents no. 5 to 8 are private respondents who were impleaded before the CAT based on their application under Order 1 Rule 10 of the Code of Civil Procedure, 1908. They submit that the review petition is not maintainable and the review petitioner is simply seeking to reagitate the same issues again which have already been adjudicated by the Court in the judgment under review.
13. On behalf of respondents no. 5 to 8 it is further submitted that the petitioner’s service was regularised vide Office Order dated 01st January, 2018 which clearly mentions that his promotion as EE is to come into effect from 17th, December, 2004 i.e. the date of communication of PC recommendation by UPSC or from the date of assumption of charge of the post, whichever is later. Since the petitioner assumed charge of the post of EE on 22nd April, 2006 on adhoc basis, hence as per the aforementioned Office Order, he was given seniority from the said date. Furthermore, the AEs such as the petitioner, who were promoted as EE against the diverted vacancies from the AEE quota to AE quota were given seniority as per the AE quota vacancies. Hence, their overall seniority was pushed down.
14. The review petitioner as well as the respondents no. 5 to 8 have filed their respective Written Submissions.
15. We have heard the parties are perused the material on record.
16. It is the contention of the review petitioner that the Office Order dated 01st January, 2018, in terms of which the review petitioner was regularized to the post of EE, duly noted that the petitioner was appointed against the vacancy of the panel year of 2001-2002. Therefore, he should have been given seniority on the said basis. It is further submitted that the department has erroneously applied the ratio of Uttaranchal Forest Rangers’ Assn (supra) and prepared the impugned seniority list in which the review petitioner is shown at Serial no. 445.
17. The principle laid down in Uttaranchal Forest Rangers’ Assn (supra) case was that in case promotions are made in excess of the quota prescribed for a particular feeder category, the seniority has to be determined only from the date on which the vacancy arises in respect of that particular category. The relevant observations of the Supreme Court in the aforesaid judgment have been produced below:-

“37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India¹ held that when promotion is outside, the quota, seniority would be reckoned. From the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one, it must be strictly, implemented and it is impermissible for the authorities concerned to, deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotes appointed in excess of the quota may work out hardship, but it is unavoidable and any construction otherwise would be illegal, nullifying the force of the statutory rules and would offend Articles 14 and 16(1) of the Constitution.”
[emphasis is ours]
18. In the present case, the review petitioner was appointed as EE against vacancies that were diverted from the quota of AEEs to the quota of AEs. Hence, applying the aforesaid ratio of Uttaranchal Forest Rangers’ Assn (supra), the review petitioner was given seniority as per his own quota i.e. AE quota. It is to be noted that the aforesaid quota for the post of EE was statutorily prescribed under 1996 Rules and therefore had to be strictly followed.
19. The review petitioner has sought to distinguish the judgment in Uttaranchal Forest Rangers (supra) case on the ground that it was based in a different factual context in as much as in the said case, promotions were made in excess of the quota on the basis of a mistake whereas in the present case, promotions were based on the basis of a decision of the Ministry based on recommendations by the UPSC which was upheld by this court in Central Engineering Service (supra).
20. In our considered view, the principle laid down in the Uttaranchal Forest Rangers (supra) would be squarely applicable in the present case i.e. where the statute prescribes separate quotas for promotion to a particular post and a promotion is made outside the quota, the seniority would have to be determined from the date when the vacancies arises in that particular quota. Even if the promotion, in excess of quota is made earlier, the seniority shall be determined from the date of the vacancy in the quota and not from the date of earlier promotion or subsequent regularisation. The diversion of posts from the AEE quota to the AE quota would not amount to a change in quota, as is sought to be argued on behalf of the petitioner. Consequently, AEs who were promoted as EEs against vacancies diverted from the AEE quota were correctly given seniority as per the vacancies in their own quota, which was reflected in the impugned seniority list issued on 17th January 2020.
21. The judgment in Central Engineering Service (supra) relied upon by the review petitioner does not advance his case. Even though the diversion of posts has been upheld in the said judgment, it does not, in any manner, suggests that quota-wise seniority has to be disregarded while granting promotion to the AEs against the diverted post.
22. Based on the aforesaid, no grounds for interference are made out. The petition is, accordingly, dismissed.
AMIT BANSAL
(JUDGE)

RAJIV SHAKDHER
(JUDGE)
JULY 18, 2024/at

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