Delhi High Court
Union Of India And Ors. vs Birendra Kumar Mishra on 27 August, 2014
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27.08.2014
+ W.P.(C) 8154/2013
D.P. JINDAL ..... Petitioner
versus
UNION OF INDIA AND ORS. ..... Respondents
+ W.P.(C) 331/2014, C.M. NO.1756/2014
BIRENDRA KUMAR MISHRA & ORS. ..... Petitioners
versus
UNION OF INDIA & ORS. ..... Respondents
+ W.P.(C) 2284/2014, C.M.NO.4802/2014
UNION OF INDIA & ORS. ..... Petitioners
versus
BIRENDRA KUMAR MISHRA ..... Respondent
Through: Sh. C. Mohan Rao and Sh. Lokesh
Kumar Sharma, Advocates, for petitioners in Item
No.9 and respondents in Item No. 7 and 10.
Sh. Sourabh Ahuja, Advocate, for Resp. Nos. 6 to
10, in Item No.9.
Sh. Ankur Chhibber, Advocate, for Resp. Nos. 1 to
Sh. M.K. Bhardwaj, Advocate, for petitioner in
Item No.10.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The present petitions challenge an order of the Central
Administrative Tribunal (CAT) dated 05.09.2013 in O.A.
No.3596/2011. All the petitioners belong to the category of Limited
W.P.(C) 8154/2013, W.P.(C) 331/2014 & W.P.(C) 2284/2014 Page 1
Departmental Competitive Examination promotees in the cadre of
Junior Engineers, who competed and were promoted to the cadre of
Assistant Engineers.
2. This Court does not propose to enter into the rival merits of the
dispute in view of the ultimate order proposed and having regard to
the subsequent developments which have occurred during the
pendency of these proceedings. It would be sufficient to state that both
the petitioners and the private respondents belong to the cadre of
Junior Engineers in the Central Public Works Department (CPWD).
The promotion to the higher post of Assistant Engineers is through
two sources, i.e. 50% quota has been earmarked for Junior Engineers
promoted on the basis of seniority with 8 years of regular service in
the grade; the balance 50% quota is earmarked for Junior Engineers
with 4 years regular service in the grade, who successfully compete in
the Limited Departmental Competitive Examination (LDCE)
conducted by the authorities. The records would show that a tentative
seniority list of Assistant Engineers was first published on 04.06.2002;
after objections were taken into consideration, and on account of
intervening litigation, the finalization of list could not take place for
many years. Ultimately on 01.08.2011, after the disposal of all
pending writ proceedings, the seniority list was finally prepared and
published. This triggered a fresh round of litigation which culminated
in the impugned order. The CAT proceeded, by its rather lengthy
order, to quash the final seniority list on various grounds. The
applicants before the CAT are arrayed as private respondents in the
W.P.(C) 8154/2013, W.P.(C) 331/2014 & W.P.(C) 2284/2014 Page 2
present proceedings. They are by and large Junior Engineers promoted
on the basis of seniority after having put in 8 years of service in the
cadre, to the post of Assistant Engineer.
3. It was urged on behalf of the petitioners that the finding of the
CAT in para 171 of the impugned order that the LDCE is not a
competitive examination but is instead, a qualifying examination, is an
erroneous one. It was highlighted that the very essence of a test or
procedure is to ensure accelerated promotion for those who were able
to clear the departmental test which cannot, by any account, be called
as a qualifying one. The UOI which is the petitioner in W.P.(C)
2284/2014 also agrees with this submission.
4. Having heard learned counsel for the parties, this Court is of the
opinion that the findings of the CAT in this regard are clearly
erroneous. The LDCE is in fact a competitive examination. Ordinarily,
such of the vacancies which fall within the 50% LDCE quota are
notified and a large number of eligible candidates are permitted to
compete. However, only those who are best merited - in strict order of
merit - are deemed to be selected and are eventually appointed. This
beats the CAT's finding that the LDCE is not a competitive
examination but a qualifying examination. The findings to the contrary
by the CAT are accordingly set-aside.
5. Some of the petitioners articulated the grievance that the CPWD
in this case has resorted to a collective examination, i.e. by bunching-
up of vacancies in the quota of LDCE for a number of years and
holding a common examination. It was submitted that this has resulted
W.P.(C) 8154/2013, W.P.(C) 331/2014 & W.P.(C) 2284/2014 Page 3
in certain anomalies whereby candidates might secure relatively
higher merit, while, at the same time, may not have been eligible to be
appointed at the particular point of time when the vacancy arose for a
particular year; this fact has been ignored. Learned counsel for the
other group contended that the notification clearly mentioned that
selections would be made on the merit.
6. This Court, after having considered the submissions, is of the
opinion that the object of the LDCE procedure is to ensure that only
those who are eligible to compete against specified vacancies for a
given year, would be entitled to lay claim to be appointed to such
posts. Whilst the CPWD's action in bunching the vacancies and
holding a collective examination may not be per se irregular, it has
obviously resulted in complications where the candidates with greater
merit would, if appropriate clarifications are not made by the
department, be capping more senior positions than others who were
eligible at that point of time. This Court is, therefore, of the opinion
that whilst framing appropriate norms or guidelines and proceeding to
finalize the seniority list, care must be taken to balance both the
aspects, i.e. relative merits of the candidates who clear such collective
examination as well as the dictate of the rules vis-a-vis eligibility.
7. In the light of the subsequent development, i.e. the publication
of provisional seniority list dated 20.08.2014, this Court grants liberty
to such of the parties who desire to object to the list in accordance
with law. The UOI shall proceed to finalize the list within eight weeks
after expiry of the time granted for objections, after taking into
W.P.(C) 8154/2013, W.P.(C) 331/2014 & W.P.(C) 2284/2014 Page 4
consideration the issues mentioned and in accordance with and other
relevant considerations in the present order. The writ petitions are
accordingly allowed, on the above terms.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
AUGUST 27, 2014
'ajk'
W.P.(C) 8154/2013, W.P.(C) 331/2014 & W.P.(C) 2284/2014 Page 5
