Union of India and Others v. S. Suresh Kumar and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 22ND DAY OF MARCH 2013/1ST CHAITHRA 1935** ## **WP(C).No. 32571 of 2009 (S)** **------------------------------------AGAINST THE ORDER IN OA.813/2006 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 11.10.2007** **.................................................** ## **PETITIONER(S):** - **--------------------------** **1. UNION OF INDIA, REPRESENTED BY THE** - **SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF URBAN DEVELOPMENT & POVERTY, ALLEVIATION NIRMAN BHAVAN, NEW DELHI.** **2. THE SECRETARY TO THE GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL & TRAINING CENTRAL SECRETARIAT, NEW DELHI.** **3. THE ADDITIONAL DIRECTOR GENERAL (TRAINING), CENTRAL PUBLIC WORKS DEPARTMENT ROOM NO.329-A, B, NIRMAN BHAVAN, NEW DELHI-11.** **BY ADVS.SRI.T.P.M.IBRAHIM KHAN, ASST.S.G OF INDIA SRI.K.M.ABDUL MAJEED** ## **RESPONDENT(S):** - **----------------------------** **1. S. SURESH KUMAR JUNIOR ENGINEER (ELETRICAL), OFFICE OF THE PWD, KOZHIKODE CENTRAL ELECTRICAL SUB DIVISION, CENTRAL PWD, KOZHIKODE RESIDING AT CENTRAL, REVENUE QUARTERS, BEACH ROAD KOZHIKODE.** **2. VINOD.R, JUNIOR ENGINEER (CIVIL), OFFICE OF THE ASSISTANT ENGINEER, CIVIL CONSTRUCTION SUB DIVISION, CENTRAL PUBLIC WORKS DEPARTMENT, KOZHIKODE, RESIDING AT CENTRAL REVENUE QUARTERS, BEACH ROAD, KOZHIKODE -32.** **3. G. SAJIKUMAR, JUNIOR ENGINEER (CIVIL), CENTRAL PWD, KENDRIYA BHAVAN, KAKKANAD KOCHI-37, RESIDING AT SREELAYAM, KIZHAKKEKARA ROAD, THRIKKAKARA, KOCHI-21.** **DCS** ## **WP(C).No. 32571 of 2009 (S)** **4. CHANDRAN ZACHARIAS, JUNIOR ENGINEER (ELECTRICAL), CENTRAL PWD, KENDRIYA BHAVAN KAKKANAD, KOCHI-37, RESIDING AT NEW KAWDIAR GARDENS THIRUVANANTHAPURAM.** **5. S.V. JAYASANKAR, JUNIOR ENGINEER (CIVIL), KOTTAYAM CENTRAL SUB DIVISION-IV CENTRAL PUBLIC WORKS DEPARTMENT, KOLLAM.** **6. K.P. BASHEER, SENIOR ENGINEER (ELECTRICAL), CENTRAL PUBLIC WORKS DEPARTMENT KOZHIKODE.** - **ADDL. R7 IMPLEADED** **7. P.R. SHAJI, AGED 45 YEARS, S/O P.K. RAGHAVAN JUNIOR ENGINEER (CIVIL), OFFICE OF THE ASSISTANT ENGINEER COCHIN CENTRAL SUB DIVISION - 5 CULTURAL PUBLIC WORKS DEPARTMENT KAKKANAD, KOCHI -37, RESIDING “SREE HARI”, TAGORE GARDENS THOTTAKKATTUKARA P.O. ALUVA, ERNAKULAM DIST.** - **ADDL. R7 IS IMPLEADED AS PER ORDER DATED 15.12.2009 IN I.A. NO. 15560/2009** - **ADDL. R8 IMPLEADED** **8. V.D. DILEEPKUMAR, S/O LATE DAMODARAN** - **AGED 47 YEARS, QUARTER NO. D.7, GPRA PWD QUARTERS, KUNNUMPURAM, KAKKANAD P.O., JUNIOR ENGINEER (ELECTRICAL) CPWD, KENDRIYA BHAVAN, KAKKANAD** - **ADDL. R8 IS IMPLEADED AS PER ORDER DATED 06.01.2010 IN I.A. 16160/2009** **R3 & R4 BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI** **SRI.BRIJESH MOHAN ADDL.R7 BY ADV. SRI.T.C.GOVINDA SWAMY ADDL.R8 BY ADV. SRI.P.K.RAMKUMAR ADDL.R8. BY ADV. SRI.CHERIAN VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-01-2013, ALONG WITH WP(C). NO. 33471/2009 AND WP(C). NO. 20561/2010, THE COURT ON 22.03.2013 DELIVERED THE FOLLOWING:** **DCS** ## **WP(C).No. 32571 of 2009 (S)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBITS P1: COPY OF THE ORIGINAL APPLICATION NO. 813/2006 FILED BY THE RESPONDENTS/APPLICANTS ALONG WITH ITS ANNEXURE BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **EXHIBITS P2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENTS IN ORIGINAL APPLICATION NO. 813 OF 2006 ALONG WITH ITS ANNEXURE BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM** **EXHIBITS P3: COPY OF THE REJOINDER FILED BY THE RESPONDENTS/APPLICANTS IN ORIGINAL APPLICATION NO. 813 OF 2006 BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **EXHIBITS P4: COPY OF THE ORDER DATED 11.10.2007 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN ORIGINAL APPLICATION NO. 813 OF 2006** **EXHIBITS P5: COPY OF THE ORDER DATED 12.10.2007 PASSED BY THE PRINCIPAL BENCH OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, NEW DELHI IN O.A. NO. 103 OF 2007** **EXHIBITS P6: COPY OF THE ORDER DATED 2.03.2009 PASSED BY THE C.A.T. PRINCIPAL BENCH, NEW DELHI IN O.A. NO. 484 OF 2009** **EXHIBITS P7: COPY OF THE NOTICE F.NO. SE(T)-I/LDCE/2009 DATED 5.11.2009 ISSUED BY THE PETITIONERS ALONG WITH THE APPLICATION FORMS** ## **RESPONDENT'S EXHIBITS:- NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **DCS** **MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.P.C.Nos.32571 & 33471 of 2009 and 20561 of 2010 ---------------------------------------- Dated this the 22[nd] day of March 2013 ## **J U D G M E N T** ## **SHAFFIQUE,J** These original petitions are filed against a common order of the Central Administrative Tribunal in three separate applications raising a common issue. 2. The applicants in the Original Applications, who are the respondents herein challenged the order of the Government, directing that the past service of the Junior Engineers (Civil) and (Electrical) in All India Radio (AIR), who were re-deployed in CPWD may be counted for the purpose of appearing in the Limited Departmental Competitive Examination (LDCE) for promotion to the post of Assistant Engineers (Civil) and (Electrical). A notice dated 07/11/2006 inviting applications for LDCE for filling up vacancies for the period from 2002-2007, by giving such relaxation is also W.P.C.No.32571/2009 & conn.cases 2 under challenge. 3. The facts involved in the case would reveal that the applicants represented those persons who were working as Junior Engineers (Civil) and (Electrical) in CPWD all along. The qualifying service for writing LDCE for those working in CPWD was four years. In the 2004 notification, no such relaxation was granted to AIR re-deployed persons. The complaint of the applicants was that, at the time of redeployment of officers from AIR, they have waived their right to claim their past service for the purpose of seniority or promotion and as such the Government Order is illegal and would affect their future chances for promotion. According to them those who were re-deployed from AIR during 2003 would complete their four year period only for the vacancies that could arise for the years 2008-2009 and hence sought for quashing the order and notification. 4. The petitioners herein along with party respondents who were Junior Engineers (Civil) and W.P.C.No.32571/2009 & conn.cases 3 (Electrical) re-deployed from (AIR) while supporting the order and notification contended that eligibility of AIR re-deployed persons was settled by the Tribunal in O.A.No.608/2000. Further, waiver of rights by such persons will not stand in the way of getting benefit of the Government order as has been affirmed in **Diwjan Chandra Sarkar vs. Union of India** _(1999(2)SCC 119)_ and other judgments. 5. The Tribunal, by a common order, found that the surplus staff of the Junior Engineers of the AIR re-deployed in CPWD are not entitled to count their past service, either for the purpose of seniority or for the purpose of promotion under the LDCE quota and quashed note (i) below paragraph 3 of Annexure A2 in the notification of the LDCE. It was thereafter made clear that in case the re-deployed Junior Engineers have completed the requisite years of service, they may be permitted for promotions in respect of those vacancies which have occurred after their completion of minimum years of service. W.P.C.No.32571/2009 & conn.cases 4 6. Before the Tribunal the applicants relied upon the judgment of the Supreme court in **Union of India v. K.Savitri** _**[** 1998 (4) SCC 358]_ wherein the Supreme Court had held that since the past services of re-deployed surplus employee cannot be counted for his seniority in the new organisation, equally the past experience also would not count for promotion. **Union of India v. G.R.K.Sharma** _[(1998) 6 SCC 186]_ is relied upon wherein the Supreme Court held that when the promotion to the post of Upper Division Clerk from the Lower Division is governed by a statutory rule, and the requirement is eight years in the grade of Lower Division Clerk in the said service, persons who joined service by way of re-deployment will not get the said benefit as the expression “regular service of eight years in the grade” would connote rendering eight years of service in the organisation to which he had been appointed. The judgment in **Superintending Engineer v. A.Sankariah** [2003(11) SCC 641] is relied upon for the position that when W.P.C.No.32571/2009 & conn.cases 5 there is re-deployment of the surplus staff it is made clear that the re-deployed staff in the new department would be treated as a fresh entrant and the service rendered by him in the previous department would not be counted for the purpose of seniority. 7. Respondents relied upon **Diwjan Chandra Sarkar** (Supra) which lays down the proposition that when there are large number of employees who are not likely to get their promotion in the near future because of their comparatively low position in the seniority list time bound promotion has to be granted which is meant to relieve frustration on account of stagnation. In such circumstances, the Government decides, in public interest, will grant the benefit of a higher grade to the personnels in the P & T department but also of those who are administratively transferred from other departments. For the purpose of granting time bound promotion, their service in the earlier employment can also be taken into consideration. W.P.C.No.32571/2009 & conn.cases 6 Apparently the Tribunal relied upon the judgments in **K.Savithri** (Supra) for arriving at the finding aforesaid. 8. The senior panel counsel Sri.T.P.M.Ibrahim Khan appearing for the petitioners herein however contended that as far as the persons re-deployed from the AIR is concerned they had to be re-deployed to CPWD by virtue of the scheme made by the department to accommodate surplus hands. This was on account of administrative exigency and in public interest. If their previous service in other Government Department is not taken into consideration, this will amount to discrimination and violation of Articles 14 & 16 of the Constitution of India. 9. The learned counsel relied upon Ext.P4 judgment of the Principal Bench of the Tribunal holding that the erstwhile service rendered by a re-deployed staff would not be reckoned for the purpose of seniority but all other benefits which they are entitled to cannot be denied, which according to the learned counsel, approves the action of the W.P.C.No.32571/2009 & conn.cases 7 department in permitting them to participate in the LDCE. Much reliance has been placed on the judgments in **Diwjan Chandra Sarkar** (Supra) and **Renu Milick v. Union of India and Another** _[1994(1) SCC 373]._ 10. During the course of argument, the learned counsel had contended that as matters stand now all these persons are qualified and the department was not in a position to conduct the examination on account of the pending issues. On the other hand learned counsel for the respondents contended that as far as the eligibility to write LDCE is concerned, AIR re-deployed staff should attain the required qualification and it depends upon the number of vacancies that had arisen during the particular year. Even though most of them would have qualified as matters stand now, if the vacancy is being filled up in regard to the post which fell vacant during the earlier period of time, such persons who are not qualified during the relevant time shall not be permitted to write the examination. W.P.C.No.32571/2009 & conn.cases 8 11. It cannot be disputed that if fresh applications are invited for LDCE definitely the AIR re-deployed staff also would be qualified as they would also have the necessary qualification for writing the examination in CPWD even without the advantage of relaxing the qualification. When a fresh application is invited for a certain number of posts, it is not open for the respondents to contend that such posts had fell vacant on an earlier occasion. Such an interpretation given will again prevent the AIR redeployed staff in writing the LDCE though they are qualified as on the date of notification. Vacancies that had arisen on an earlier occasion, if not filled up, can only be treated as vacancies which is required to be filled up as per the notification being published. In such circumstances, we do not think that there is any necessity to revise the impugned orders on merits as by lapse of time the persons who had been re-deployed from AIR had already qualified to write the competitive examination and the department shall be free to call for W.P.C.No.32571/2009 & conn.cases 9 fresh application to fill up the existing post and it is not open for the respondents to insist that the vacancy position has to be taken into consideration from the respective years . In the result, without modifying the orders of the Tribunal, we permit the department to invite fresh applications for filling up the vacant post. The Writ Petitions are disposed of as above. (sd/-) **(MANJULA CHELLUR, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.32571/2009 & conn.cases 10 W.P.C.No.32571/2009 & conn.cases 11