DASARATHI SAHOO Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is the second round of litigation by the applicant, challenging the seniority lists prepared by respondent No. 2 in association with respondent Nos. 1 and 3 pushing the applicant down from the position in the seniority list prepared after he was promoted to the present post in 2005. Earlier he had filed O.A. No. 429 of 2010. When the said OA was taken up for final hearing on 2.3.2012, the Counsel for respondent Nos. 1 and 2 informed that an affidavit was filed by the respondents on 10.2.2012 stating that respondent No. 2 had issued a revised seniority list vide letter dated 3.2.2012 in compliance of the order dated 4.1.2006 of the Bangalore Bench of this Tribunal in O.A. No. 737 of 2004. Faced with the aforementioned seniority list communicated in February 2012, the applicant had two options viz. (1) to amend the said OA or (2) to file a fresh substantive OA. The applicant submitted that he would prefer the latter option. Accordingly, O.A. No. 429 of 2010 was withdrawn by the applicant with liberty to file a fresh OA against the aforesaid revised seniority list with a further liberty to reiterate the pleadings he had taken in O.A. No. 429 of 2010 in the fresh O.A. It is in this backdrop, the applicant has come before this Tribunal with the present OA.

(2.) THE Departmental respondents filed a reply with the following contentions:

(3.) A rejoinder was filed by the applicant in response to the reply filed by respondent Nos. 1 and 2 mostly reiterating and supplementing his pleadings in the OA. It is also stated in the rejoinder that delay occurred in convening the DPC in the year 2003 cannot affect the applicant's right to be given seniority from 2003. The plea that the OA is premature is not true. It was with the approval of this Tribunal that the earlier O.A. No. 429 of 2012 was withdrawn on 2.3.2010 to file a fresh and substantive OA, after this Tribunal had recorded the statement of the respondents that they have no objection to the same. The allegation that alternative remedy has not been exhausted is not sustainable as Annexure -A/3 seniority list does not mention of giving any opportunity to the aggrieved persons for filing representations. The DOPT circular at Annexure -R/2 is for determination of seniority between direct recruiters and promotes whereas in the instant case the issue is regarding assignment of seniority amongst the promotes. It is not true that there was no vacancy in 2003 because the documents submitted by the respondent No. 2 to the UPSC clearly show the regular vacancy of 2003. When the applicant was selected and included by the UPSC in the panel for the year 2003, respondent No. 4 was not even eligible for that panel of 2003 and he was promoted only for the panel of 2004. Therefore, it is incorrect on the part of respondent Nos. 1 and 2 to contend that the applicant is not entitled to be placed above respondent No. 4 in the seniority list. It is arbitrary and whimsical on the part of respondent Nos. 1 and 2 to take a stand that there was no regular vacancy in 2003 especially when the applicant came to be promoted in the year 2005 against the regular vacancy of 2003.