K B RAJORIA Vs. UNION OF INDIA

JUDGEMENT

(1.) The question which is posed to be answered in the writ petition is; What does "regular service in a cadre" stands for? Does it amount to qualifying service or amounts to experience in the service? Can Fixing of notional pay or for that matter notional promotion count as "regular service"?

(2.) Briefly stated the case of the petitioner asset up by him is that he joined the Central Public Works Department (in short CPWD) in September, 1963 as Assistant Executive Engineer in December, 1966 and then promoted as Executive Engineer in December, 1966 and then to the post of Superintending Engineer in April, 1976. He was promoted to the post of Chief Engineer (Civil) and his seniority was fixed w.e.f. August, 1989. On the other hand respondent No.4 joined CPWD as Assistant Engineer in Electrical and Mechanical stream of engineering in September, 1963. He was promoted to the post of Executive Engineer. Thereafter he was promoted to the post of Superintending Engineer in April, 1976. Respondent No.4 was further promoted to the post of Chief Engineer (Electrical) and his seniority was fixed w.e.f. 6th January, 1987. There had been a see-saw change in the inter-se seniority of the petitioner and the respondent No. 4. This was due to various judicial pronouncements of the Apex Court namely in the cases of A.K. Subramani Vs, Union of India reported in 1975 (1) SCC 319, P.S. Mahal Vs. Union of India reported in 1984 (4) SCC 545 and R.L. Bansal Vs. Union of India reported in 1992 Supp (2) SCC 318. The issue before the Supreme Court in all the above cases was the inter-se seniority amongst Assistant Engineers for whom next promotional post was Executive Engineer. Because of these pronouncements the inter-se seniority of the officials of the CPWD in the Engineering stream including that of the petitioner and respondent No.4 had been changing. Because of the judgement of the Apex Court, petitioner got seniority over respondent No.4 and .so did Mr.S.R.Goyal who subsequently became junior to respondent No.4. Subsequent thereto on account of the judgement of Apex Court in the case of S.R.Bansal (Supra) respondent No.4 got seniority over the petitioner as well as the said Mr. S.R.Goyal. Respondent No.4 thus became Chief Engineer w.e.f. 6th January, 1987 whereas petitioner's seniority in the post of Chief Engineer was fixed w.e.f. August, 1989.

(3.) According to the petitioner he became eligible for the post of Additional Director General (Works) (hereinafter called the ADG(W) on 21st August, 1992 when he actually completed the qualifying service of three years in the grade of Chief Engineer. The post of ADG fell vacant on 1st April, 1995. He was eligible to be considered for the same on the basis of the seniority then assigned to him. That no DPC was held for the vacant post of ADG for the years 1995-96 and 1996-97 inspite of the fact that the petitioner was eligible for being considered for the post of ADG as on 1st April, 1995. As a result petitioner could not be promoted to the post of ADG as on 1st April, 1995. Five of his seniors were considered and promoted to the post of ADG due to the DPC was held between June, 1993 to February, 1995. But thereafter no DPC held hence he was deprived of the promotion. The reason given by the respondent for not holding the DPC for the years 1995-96 and 1996-97 was that there had been dispute regarding fixation of inter-se seniority. The Apex Court decision was delivered in 1992. As per that decision, seniority was fixed by the respondent. Per that seniority the last person to be promoted was Mr. S.R.Goyal who was in fact promoted in February, 1995 to the post of ADG. Had the DPC met thereafter the petitioner who was then the seniormost would have been promoted to the post of ADG in April,1995 itself as he was the only person eligible at that time.