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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

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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

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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

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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

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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 re- draw  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-HR-

2009, 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

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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

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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

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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

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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,

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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.

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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

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seniority  of  SDE  promoted  through  seniority-cum-

fitness 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-HR-

2009 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

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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

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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:

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“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

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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

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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-cum- fitness  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  contra- distinction  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 Qualifying- cum-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.”

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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

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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

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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

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appeal is, accordingly, dismissed.

......................J.                             ( ASHOK BHUSHAN )

......................J.                             ( K.M. JOSEPH )

New Delhi, April 02, 2019.