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.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.14967 OF 2017
VINOD VERMA … APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against the judgment
dated 03.12.2014 of the High Court of Punjab and
Haryana at Chandigarh dismissing the writ petition
filed by the appellant as well as the order dated
24.02.2016 rejecting the Review Application No.21 of
2016 filed by the appellant to review the judgment
dated 03.12.2014.

  1. Brief facts giving rise to the appeal need to
    be noted are:
    Rules have been framed under proviso to Article
    2
    309 of the Constitution, namely, the
    Telecommunications Engineering Service (Group “B”
    Posts) Recruitment Rules, 1996 (hereinafter referred
    to as “Rules, 1996”). The post of Sub-Divisional
    Engineer is the post governed by the Rules, 1996.
    The post of Sub-Divisional Engineer is hundred
    percent promotional post. Junior Telecom Officers
    are eligible for promotion under two methods: (i)
    75% on the basis of seniority-cum-fitness, (ii) 25%
    on the basis of departmental competitive
    examination. In the year 2000, the Telecommunication
    Department initiated the process for filling up of
    the vacancies “Post 1996-97”. In the year 2001, the
    appellant was promoted as Sub-Divisional Engineer
    under the seniority-cum-fitness quota. The
    department announced the Limited Departmental
    Competitive Examination(LDCE)for promotion for the
    25% quota for vacancies after 22.07.1996 which
    examination could be held on 01.12.2002. The
    department issued the promotion orders dated
    26.04.2000 and 07.12.2001 for the officers promoted
    under the seniority-cum-fitness category for the
    vacancies occurring after 23.07.1996. The result of
    3
    Limited Departmental Competitive Examination was
    declared on 15.12.2003. The appellant also appeared
    in the Departmental Competitive Examination held on
    01.12.2001. The promotion order dated 26.05.2004 was
    issued for the promotion of LDCE successful
    candidates. The order contemplated that the
    seniority of these officers will be fixed as per
    Rules shortly. DPC was again conducted and
    promotions were made against the 75% category for
    the subsequent years 2001-02 and 2002-03 on
    16.09.2004. The seniority list of Sub-Divisional
    Engineers was issued on 12.01.2005 which seniority
    list became the subject matter of the challenge in
    various Benches of Central Administrative Tribunal.
    In Central Administrative Tribunal, Chandigarh
    Bench, TA No.84-HR-2009, Dewan Chand & Ors. vs.
    Union of India was filed. Before Central
    Administrative Tribunal, Bombay Bench, TA No.6 of
    2009, S. Sadasivan vs. BSNL was filed. Before
    Central Administrative Tribunal, Ernakulam Bench, OA
    No.16 of 2009, Thomas Zachariah vs. BSNL and OA
    No.86 of 2009, V. Govindan vs. Union of India were
    filed. Chandigarh Bench of Central Administrative
    4
    Tribunal decided TA No.84-HR-20090 (Dewan Chand vs.
    Union of India) vide its judgment dated 25.08.2009.
    The Central Administrative Tribunal, Chandigarh
    allowed the Transfer Application. The applicants
    before the Tribunal were working as Sub-Divisional
    Engineers. The question raised was as to what would
    be the mode of fixation of seniority in TES Group
    ‘B’ between members of service who are appointed on
    the basis of seniority vis-a-vis those who enter the
    service after qualifying the Limited Departmental
    Competitive Examination. The Tribunal held that the
    seniority of the incumbents has to be determined on
    the basis of date of joining and not of the notional
    date of promotion. The applicants before the
    Tribunal belonged to the stream who were promoted
    under seniority-cum-fitness where few of the
    respondents who were impleaded before the Tribunal
    were those who were promoted Sub-Divisional
    Engineers vide order dated 26.05.2004 on the basis
    of Limited Competitive Departmental Examination. The
    Tribunal quashed the seniority list prepared by the
    department and directed for redrawing the seniority
    list on the basis of date of joining of the
    5
    incumbents. In paragraph 17 following was directed:
    “17.In view of the above discussion,
    both these Original Applications are
    allowed. Orders/seniority lists impugned
    in these petitions are quashed and set
    aside. The respondents are directed to redraw the seniority of officers of TES
    Group-B on the basis of dates of joining
    of incumbents, as discussed above, within
    a period of six months from the date of
    receipt of copy of this order. Before
    undertaking such exercise, respondents may
    invite objections from the persons likely
    to be adversely effected before re-drawing
    seniority as observed herein above. No
    costs.”
  2. The appellant was not the party to the said
    case in Dewan Chand vs. Union of India, TA No.84-HR2009, hence, he filed the review petition before the
    Central Administrative Tribunal. The review petition
    was dismissed by the CAT on 18.01.2010. The Writ
    Petition No.5148-CAT of 2010 was filed by the
    appellant challenging the order dated 25.08.2009 and
    18.01.2010 passed by the Central Administrative
    Tribunal, Chandigarh. The writ petition filed by the
    appellant was dismissed by the Punjab and Haryana
    High Court vide its judgment and order dated
    03.12.2014. The High Court in its judgment dated
    03.12.2014 held that controversy in the case stands
    settled by the decision dated 12.08.2014 rendered by
    6
    this Court in SLP(C)No.35756 of 2012 (BSNL and
    others vs. S. Sadasivan and others). Against the
    judgment dated 03.12.2014 SLP(C)No.18621 of 2015 was
    filed by the appellant which was disposed of on
    16.10.2015 by this Court permitting the appellant to
    withdraw the SLP with liberty to file review
    application before the High Court. In pursuance of
    the order dated 16.10.2015 appellant filed a review
    application before the High Court which has been
    rejected on 24.02.2016. Aggrieved by the judgment
    dated 24.02.2016 and initial judgment dated
    03.12.2014 this appeal has been filed by the
    appellant.
  3. We have heard Shri C.A. Sundaram, learned
    senior counsel for the appellant. Shri Vikramjit
    Banerjee, learned Additional Solicitor General has
    appeared for the Union of India. Shri B.H.
    Marlapalle, learned senior counsel has appeared for
    BSNL. We have also heard Shri J.S. Attri, learned
    senior counsel for the respondents. Shri S.
    Sadasivan, who has filed application for
    intervention and appeared in-person has also been
    heard. There are several other applications seeking
    7
    impleadment in these proceedings. We do not find any
    necessity to implead applicants in these
    proceedings. IAs seeking impleadment in this appeal
    are refused.
  4. 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…”.
  5. It is submitted that Union of India vs. N.R.
    Parmar, (2012) 13 SCC 340, is clearly applicable. It
    is submitted that neither the Central Administrative
    8
    Tribunal nor the High Court has considered the
    relevant OM dated 22.12.1959 and subsequent OMs
    laying down principles of seniority due to which
    error has been committed in setting the seniority
    list finalized by the department. It is submitted
    that judgment of this Court in SLP(C)No.35756 of
    2012(BSNL & Ors. vs. S. Sadasivan & Ors.) dated
    12.08.2014 does not decide the issues raised before
    the Punjab and Haryana High Court. It is further
    submitted that the judgment of this Court in
    C.A.No.7830 of 2014(Bharat Sanchar Nigam Limited &
    Ors. Vs. S.K. Dubey & Ors.) decided on 12.08.2014
    does not consider the relevant OMs determining the
    seniority. This Court in the said judgment fell in
    error in holding that ROTA rule is not applicable.
  6. Learned counsel submits that the judgment of
    this Court in Union of India vs. N.R. Parmar, (2012)
    13 SCC 340, has again been reiterated by this Court
    in its judgment dated 03.10.2018 in C.A.Nos.5518-
    5523 of 2017 (Punjab and Haryana High Court vs.
    State of Punjab) that when the quota has been
    prescribed under the statutory rules, the ROTA is
    9
    applicable automatically in the seniority. The
    appellant who was eligible earlier years for
    promotion has to be placed in the slot according to
    his eligibility and has to be given seniority of
    that position.
  7. 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.
  8. Shri Marlapalle, learned senior counsel,
    10
    submits that the BSNL has been following the
    instructions of the department on the judgment of
    S.K.Dubey (supra) and if now the quota and ROTA
    rules are implemented it will cause new problems.
  9. 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.
  10. Learned senior counsel further submits that the
    issue raised in this appeal is covered by judgments
    of this Court dated 12.08.2014 (BSNL & Ors. vs. S.K.
    Dubey & Ors.) and judgment dated 12.08.2014 in
    Transferred Case No…… of 2014 (arising out of
    T.P(C)No.184 of 2013), Rajesh Banta & Ors. vs. Dewan
    Chand & Ors. Learned counsel submits that quota of
    75% and 25% is applicable but ROTA is not
    applicable.
    11
  11. 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.
  12. We have considered the submissions of learned
    counsel for the parties and perused the records.
  13. 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.”
  14. In the seniority list Nos.7 and 8, the inter se
    12
    seniority of SDE promoted through seniority-cumfitness and LDCE was fixed by the department in the
    ratio of 3:1 as per OM dated 03.07.1986 which was
    sought to be challenged in the present case, where
    the appeal has arisen out of the order passed by the
    Chandigarh Bench of Central Administrative Tribunal.
    In TA No.84-HR-2009 (Dewan Chand vs. Union of
    India), the applicants who had approached the
    Tribunal were promoted under seniority-cum-fitness
    and they were allocated to the seniority position
    below the promotees under LDCE quota under which
    they were given seniority slots earlier to date of
    promotion. The Tribunal had allowed the TA No.84-HR2009 and set aside the seniority list and directed
    for drawing the seniority list on the basis of date
    of joining of the incumbents. The appellant who
    claims seniority position as per occurring of
    vacancy for LDCE quota is aggrieved by the direction
    of the Tribunal.
  15. A perusal of Rules, 1996 indicates that Rules,
    1996 provides for the method of recruitment, age and
    other qualifications. The Rules which have been
    brought on record as Annexure P-8 to the appeal do
    13
    not contain any provision relating to determination
    of seniority. The statutory Rules, 1996 being silent
    on the question of determination of seniority, Shri
    Sundaram is right in his submission that for
    determination of seniority OMs dated 22.12.1959,
    24.06.1978, 07.02.1986, 03.07.1986 and 07.02.1990
    have to be looked into. It is settled law that the
    determination of seniority can be provided by the
    Executive instructions if the subject matter is not
    covered by the statutory rules.
  16. It is to be noted that the High Court has
    dismissed the writ petition filed by the appellant
    challenging the order of the CAT dated 25.08.2009
    holding that the issue is covered by the judgment of
    this Court in BSNL vs. S. Sadasivan. It is necessary
    to look into the judgment of this Court in BSNL vs.
    S. Sadasivan and proceeding giving rise to this
    Court’s order dated 12.08.2014. Shri S. Sadasivan
    before CAT, Bombay Bench, Mumbai has challenged the
    validity of the seniority list dated 28.07.2004. In
    seniority list Nos.6 and 7 of Telecommunication
    Engineers Group “B” S. Sadasivan was promoted under
    75% quota on 07.12.2001. On 01.12.2002 Limited
    14
    Departmental Competitive Examination was held for
    25% quota, result of which was declared on
    15.12.2003. Thereafter, seniority list Nos.6 and 7
    were issued. The case of S. Sadasivan was that
    seniority of the applicant was below to who was
    subsequently promoted on 26.05.2004. It is relevant
    to notice that the Central Administrative Tribunal,
    Bombay Bench allowed the application vide its
    judgment dated 25.11.2010 and set aside the
    seniority list. The respondents were directed to
    recast the seniority list on the basis of the order
    given by the Chandigarh Bench of CAT in Dewan
    Chand’s case, (which is the order of the Tribunal
    which has given rise to the present appeal) against
    which order BSNL filed Writ Petition No.3725 of 2011
    which was dismissed by the Bombay High Court on
    21.06.2011.
  17. Against the order of the Bombay High Court
    dismissing the writ petition matter was taken to
    this Court by filing SLP(C)No.35756 of 2012 (BSNL &
    Ors. vs. S. Sadasivan & Ors.). This Court on
    12.08.2014 dismissed the said SLP by passing the
    following order:
    15
    “SLP (C) No.35756 OF 2012
    In paragraph 3 of the impugned order, the
    High Court has observed thus:
    “The question is : whether the
    Tribunal was right in answering the
    controversy on the principal that the
    correct date for reckoning seniority
    of the respondent ought to be taken as
    7th December, 2001 which is his date
    of joining. In our opinion, there is
    no infirmity in the said view taken by
    the Tribunal.”
    We find no infirmity with the above view
    taken by the High Court. Special leave
    petition is, accordingly, dismissed.”
  18. 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.
  19. At this stage, we may consider one more
    submission which has been raised by the learned
    counsel for the respondents. The submission which
    has been raised by the learned counsel for the
    respondents is that a three-Judge Bench of this
    Court in BSNL vs. S.K. Dubey (supra) has finally
    determined the controversy and held that ROTA rule
    will not be applicable for determining the seniority
    16
    of Sub-Divisional Engineers. We may notice the
    judgment of this Court dated 12.08.2014 in BSNL vs.
    S.K. Dubey in some detail. BSNL has filed the
    appeal. In the said appeal the challenge was made to
    the order of CAT, Jabalpur which directed the
    appellant, BSNL to assign the notional date of
    promotion to Sub-Divisional Engineers which order
    was set aside by this Court by the said judgment.
    Paragraphs 2 to 4 of the judgment are as follows:
    “2. This appeal by special leave is
    directed against the order of the Central
    Administrative Tribunal, Jabalpur, whereby
    the original application filed by the
    respondents herein was allowed and the
    direction has been given to the present
    appellants (respondent therein) to assign
    the notional date of promotion as Sub
    Divisional Engineers (SDEs) with
    consequential benefits such as counting of
    experience for further promotions, annual
    increments etc. to the original applicants
    with effect from 23.01.2002.
  20. The order passed by the Central
    Administrative Tribunal cannot be sustained
    for more than one reason. In the first
    place, there is no rule with regard to the
    subject service which gives benefit of
    assigning the notional date of promotion
    with retrospective effect. The present
    respondents were employees of the
    Department of Telecommunications,
    Government of India and were working as
    Junior Telecom Officers prior to 1996. In
    exercise of the powers conferred by the
    proviso to Article 309 of the Constitution
    of India, the Telecommunications
    17
    Engineering Services (Group ‘B’)
    Recruitment Rules, 1996 were made with
    effect from 22.07.1996. Inter alia, these
    rules provide for method of recruitment,
    age limit and other qualifications for the
    recruitment by way of promotion to the post
    of TES Group ‘B’.
  21. As per these Rules, 75% promotion is to
    be made on the basis of seniority-cumfitness from amongst Junior Telecom
    Officers with three years regular service
    in the Grade and 25% is to be promoted on
    the basis of Departmental Competitive
    Examination from Junior Telecom Officers
    with three years r10egular service in the
    Grade. The crucial date for determining the
    eligibility is 1st July of the year to
    which the vacancy pertains. 1996
    Recruitment Rules do not provide for ROTA
    nor does it provide for holding
    Departmental Competitive Examination for
    the vacancies every year in contradistinction to the earlier Rules of 1981
    entitled Telegraph Engineering Service
    (Group ‘B’ Posts) Recruitment Rules, 1981.
    1981 Rules, inter alia, had a provision
    that inter se seniority of the officials
    who have qualified in the Departmental
    Qualifying Examination shall be in the
    ratio of 2:1 starting with the officers
    selected by the method of selection by
    Departmental Promotion Committee on the
    basis of Departmental Qualifying
    Examination. It also provided that there
    shall be normally one examination
    consisting of two parts called Qualifyingcum-Competitive Examination for promotion
    to the service which shall be held at least
    once in a calendar year. The ROTA rule as
    well as holding the examination at least
    once in a calendar year which were provided
    in the 1981 Rules are conspicuously absent
    in the 1996 Rules. The validity of the 1996
    Rules has not been put in issue by any
    one.”
    18
  22. 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.
  23. There is one more reason to hold that the
    present appeal is covered by three-Judge Bench
    judgment of this Court dated 12.08.2014. Against the
    judgment of Tribunal in TA No.84-HR-2009 (Dewan
    Chand vs. Union of India) a writ petition was filed
    in Punjab and Haryana High Court being CWP
    No.5133/CAT of 2010 (Rajesh Banta and others vs.
    Central Administrative Tribunal and others). Thus,
    in the said writ petition the same order of the
    Tribunal dated 25.08.2009 was under challenge which
    has been challenged by the appellant herein. This
    Court transferred CWP No.5133/CAT of 2010 (Rajesh
    Banta and others vs. Central Administrative Tribunal
    and others) by Transferred Case (Civil) No……of
    2014(arising out of T.P.(C)No.184 of 2013) and by
    the judgment dated 12.08.2014, the three-Judge Bench
    dismissed the writ petition which was filed
    challenging the order of the CAT in Dewan Chand. The
    19
    order of this Court is brought on record at pages
    181-182 of the paper book which is to the following
    effect:
    “TRANSFERRED CASE (CIVIL) NO. OF 2014
    (Arising out of T.P.(Civil) No.184 of 2013)
    RAJESH BANTA & ORS. PETITIONER(S)
    VERSUS
    DEWAN CHAND & ORS. RESPONDENT(S)
    O R D E R
    Transfer petition is allowed. Writ
    Petition being C.W.P. No.5133/CAT-2010
    titled “Rajesh Banta and Others v. Central
    Administrative Tribunal and Others” is
    transferred from Punjab and Haryana High
    Court to this Court and is treated as
    Transferred Case.
  24. We have heard Mr. Sunil Kumar, learned
    senior counsel for the petitioners.
  25. 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 )”
  26. When three-Judge Bench of this Court following
    20
    the pronouncement in BSNL & Ors. vs. S.K. Dubey &
    Ors., judgment of the same day, has dismissed the
    writ petition against the same very judgment of the
    CAT of Chandigarh Bench in Dewan Chand vs. Union of
    India, the fate of this appeal is sealed by the said
    judgment by dismissing the writ petition against the
    order of the Central Administrative Tribunal,
    Chandigarh Bench in TA No.84-HR-2009. The writ
    petition filed by the appellant has to meet the same
    fate. In view of the facts as noticed above that the
    controversy raised in this appeal is covered by
    three-Judge Bench judgment dated 12.08.2014 we see
    no necessity to delve into various other arguments
    raise in this appeal. We are not persuaded to take
    any different view to one which has been taken by
    three-Judge Bench as noted above.
  27. We, thus, hold that the present appeal deserves
    to be dismissed in view of the judgment of this
    Court dated 12.08.2014 Transferred Case (Civil) No……
    of 2014(arising out of T.P.(C)No.184 of 2013)(Rajesh
    Banta & Ors. vs. Dewan Chand & Ors.) and judgment of
    the three-Judge Bench of this Court in BSNL & ors.
    vs. S.K. Dubey & Ors. decided on 12.08.2014. The
    21
    appeal is, accordingly, dismissed.
    ………………….J.
    ( ASHOK BHUSHAN )
    ………………….J.
    ( K.M. JOSEPH )
    New Delhi,
    April 02, 2019.