ASHWANI KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner was appointed on compassionate grounds as LDC on probation in the President's Secretariat on an initial pay of Rs. 3050 in pay scale of Rs. 3050-75-3950-80-4590 w.e.f 1st March, 1999. The services of the Petitioner were regularized in the year 2001. On 7th June, 2005, a Limited Departmental Competitive Examination (in short referred to as 'LDCE') in accordance with the President's Secretariat Upper Division Clerks Limited Departmental Competitive Examination Regulations, 1997 (hereinafter referred to as "the Regulations-1997?) was held to fill up 25% vacancies arising in the Upper Division Clerk (UDC in short) cadre of President's Secretariat. The aforesaid Regulations came into force w.e.f. 13.12.1997 after being published in the Official Gazette. The Regulation 9(4) provides a procedure for fixation of the seniority of successful candidates in the LDCE to the promoted post of UDC which is in accordance with the inter-se-seniority of Lower Division Clerk cadre. The seniority of the Petitioner was at sr. No. 5 in the Lower Division Clerk Cadre at the time of appearing in the LDCE. Petitioner appeared in the LDCE after satisfying the pre-requisite condition of five years of regular service in the Lower Division Clerk Cadre. The Petitioner came second in the merit of LDCE. The seniority of the Petitioner in the Upper Division Clerk Cadre in respect of 25% vacancies which was to be filled up by the LDCE was fixed at sr. No. 5 instead of sr. No. 2 without following the merit in the LDCE. It is stated that in the years 1997, 2000 and 2002, the Respondents had determined the seniority of the candidates who had qualified LDCE for being promoted as Upper Division Clerk in accordance with the merits obtained in the LDCE. However, the seniority of the Petitioner in the cadre of UDC was fixed on the basis of seniority in the feeder cadre and not on the basis of merit in LDCE. Aggrieved with the same, Petitioner made representations on 3rd August, 2005, 12th December, 2005, 8th August, 2006, 21st May, 2007 and 19th November, 2008 respectively to stake the claim of seniority at sr. No. 2 instead of sr. No. 5. The representations of the Petitioner were rejected vide letter dated 17th June, 2008. Aggrieved with the same, Petitioner had filed OA No. 768/2009 before the Central Administrative Bench, Principal Bench (hereinafter referred to as 'the Tribunal?) contending therein that he stood second in the merit in the LDCE held on 7th June, 2005. However, his seniority was fixed at sr. No. 5 as per inter-se-seniority existing in the Lower Division Clerk Feeder Cadre instead of fixing the same in accordance with the merit obtained in the LDCE. The said OA was dismissed as withdrawn and liberty was granted to Petitioner to challenge the vires of the Regulations, 1997. Thereafter, Petitioner filed OA No. 3178/2009 contending that as the Respondents deviated from the Regulations-1997 for the LDCE of 1997, 2000 and 2002 respectively, there was no reason why the Respondents did not deviate from the Regulations-1997 in 2005 also, the year in which the Petitioner appeared in LDCE. Petitioner also contended before the Tribunal that as the "merit? basis in the LDCE has been introduced in the year 2007, the inter-se-seniority in the LDC cadre existing in the Regulations-1997 should be declared ultra vires and bad in law. The said OA was dismissed vide impugned order dated 18th August, 2010.

(2.) Learned Counsel for the Petitioner has contended that the Respondent ought to have adopted the principle of merit in the LDCE as was done in the previous years i.e in 1997, 2000 & 2002 and applying the same analogy, the Petitioner ought to have been granted seniority in the UDC cadre as per merit in LDCE.

(3.) The stand of the Respondents in the counter affidavit filed before the Tribunal was that in 1997, 2000 and 2002, seniority in the UDC Cadre of the successful candidates in LDCE was fixed on the basis of merit in the said examination due to a mistake committed not knowingly i.e. due to misinterpretation of Regulations framed for the purpose of deciding seniority and when the mistakes were detected in the year 2003, the persons who had qualified in the LDCE held in the year 2003 were given seniority on the basis of their inter-se-seniority in the cadre of LDC and the same was followed in the subsequent years i.e. 2003, 2005 & 2006 respectively. Thereafter, an amendment to the Regulations-1997 was made in the year 2007 and the principle of inter-se-seniority in the LDC is changed to merit secured on the basis of LDCE.