VINOD VERMA versus UNION OF INDIA & ORS. on 2 April 2019

[2019] 6 S.C.R. 1014

SUPREME COURT REPORTS

[2019] 6 S.C.R.

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VINOD VERMA

v.

UNION OF INDIA & ORS.

(Civil Appeal No. 14967 of 2017)

BAPRIL 02, 2019

[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]

Telecommunications Engineering Service (Group “B” Posts)Recruitment Rules, 1996 – Post of Sub-Divisional Engineer governedby 1996 Rules – Junior Telecom Officers eligible for promotionCunder two methods- 75% on the basis of seniority-cum-fitness and25% on the basis of departmental competitive examination – In 2001,the appellant was promoted as Sub-Divisional Engineer under theseniority-cum-fitness quota – Department announced the LimitedDepartmental Competitive Examination (LDCE) for promotion forDthe 25% quota for vacancies after 22.07.1996 – Appellant alsoappeared in the Departmental Competitive Examination – Promotionorder issued for the promotion of LDCE successful candidates –Promotions also made against the 75% category for the subsequentyears – Seniority list of Sub-Divisional Engineers issued –Challenged in various Benches of Central Administrative TribunalE– In CAT, Chandigarh Bench, case titled Dewan Chand & Ors. vs.Union of India was filed wherein the Tribunal vide order dated25.08.2009 quashed the seniority list and directed redrawing theseniority list – Appellant was not party to the said case – Appellantfiled review petition before the Tribunal – Dismissed on 18.01.2010F– Writ Petition filed by the appellant challenging the orders dated25.08.2009 and 18.01.2010 – Dismissed – SLP filed by the appellant– Dismissed with liberty to file review application before the HighCourt – Appellant filed review application – Rejected – On appeal,held: Present appeal is covered by three-Judge Bench judgment ofSupreme Court dtd. 12.08.2014 in Rajesh Banta & Ors. vs. DewanGChand & Ors. and BSNL vs. S.K. Dubey – Against the judgment ofTribunal dated 25.08.2009 in Dewan Chand vs. Union of India, awrit petition was filed in Punjab and Haryana High Court titledRajesh Banta and others vs. Central Administrative Tribunal and others– Thus, in the said writ petition the same order of the Tribunal dated H

25.08.2009 was under challenge which has been challenged bythe appellant herein – Supreme Court vide order dated 12.08.2014,following judgment of the same day in BSNL vs. S.K. Dubey,dismissed the said writ petition which was filed challenging the orderof CAT in Dewan Chand – Accordingly, writ petition filed by theappellant is also dismissed – Constitution of India – Art.309 –Service Law.

Service Law – Seniority – Determination of, by executiveinstructions vis-a-vis statutory rules – Held: Determination ofseniority can be provided by the Executive instructions if the subjectmatter is not covered by the statutory rules.

Dismissing the appeal, the Court

HELD: 1.1 A perusal of Telecommunications EngineeringService (Group “B” Posts) Recruitment Rules, 1996 indicatesthat Rules, 1996 provides for the method of recruitment, ageand other qualifications. The Rules which have been brought onrecord do not contain any provision relating to determination ofseniority. The statutory Rules, 1996 being silent on the questionof determination of seniority, for determination of seniority OMsdated 22.12.1959, 24.06.1978, 07.02.1986, 03.07.1986 and07.02.1990 have to be looked into. Determination of senioritycan be provided by the Executive instructions if the subject matteris not covered by the statutory rules. [Para 16][1023-B-C]

1.2 The present appeal is covered by three-Judge Benchjudgment of Supreme Court dated 12.08.2014. Against thejudgment of Tribunal in TA No.84-HR-2009, a writ petition wasfiled in Punjab and Haryana High Court being CWP No.5133/CAT of 2010 . Thus, in the said writ petition the same order ofthe Tribunal dated 25.08.2009 was under challenge which hasbeen challenged by the appellant herein. Supreme Court by thejudgment dated 12.08.2014 dismissed the writ petition which wasfiled challenging the order of the CAT in Dewan Chand.[Para 22][1026-C-D]

1.3 When three-Judge Bench of Supreme Court followingthe pronouncement in BSNL & Ors. vs. S.K. Dubey & Ors.,judgment of the same day, dismissed the writ petition against the AB

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SUPREME COURT REPORTS

Asame very judgment of the CAT of Chandigarh Bench in DewanChand vs. Union of India, the fate of this appeal is sealed by thesaid judgment by dismissing the writ petition against the order ofthe Central Administrative Tribunal, Chandigarh Bench in TANo.84-HR-2009. The writ petition filed by the appellant has tomeet the same fate. The controversy raised in this appeal isBcovered by three-Judge Bench judgment dated 12.08.2014. Thepresent appeal deserves to be dismissed in view of the judgmentof Supreme Court dated 12.08.2014 (Rajesh Banta & Ors. vs.Dewan Chand & Ors.) and judgment of the three-Judge Benchof this Court in BSNL & ors. vs. S.K. Dubey & Ors. decided onC12.08.2014. [Paras 23, 24][1027-D-G]

BSNL and Others v. S. Sadasivan and Others Judgmentof Supreme Court dated 12.08.2014 in SLP(C)No.35756 of 2012 ; Rajesh Banta & Ors. v. DewanChand & Ors. Judgment of Supreme Court datedD12.08.2014 in T.P (C) No. 184 of 2013 ; BharatSanchar Nigam Limited & Ors. Vs. S.K. Dubey & Ors.Judgment of Supreme Court dated 12.08.2014 inC.A.No.7830 of 2014 decided on 12.08.2014– relied on.

EDewan Chand & Ors. v. Union of India Order ofCentral Administrative Tribunal, Chandigarh Benchin TA No.84-HR-2009; S. Sadasivan v. BSNL Order ofCentral Administrative Tribunal, Bombay Bench inTA No.6 of 2009; Thomas Zachariah v. BSNL Order ofCentral Administrative Tribunal, Ernakulam BenchFin OA No.16 of 2009; V. Govindan v. Union of IndiaOrder of Central Administrative Tribunal, ErnakulamBench in OA No.86 of 2009; Union of India v. N.R.Parmar (2012) 13 SCC 340 : [2012] 13 SCR 555;Rajesh Banta and Others v. Central AdministrativeGTribunal and Others CWP No.5133/CAT of 2010;Punjab and Haryana High Court v. State of PunjabAIR 2018 SC 5284 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14967of 2017

From the Judgment and Order dated 03.12.2014 and 24.02.2016of the High Court of Punjab and Haryana at Chandigarh in Civil WritPetition No. 5148 – CAT of 2010 (O & M) and in Review ApplicationNo. 21 of 2016 in CWP No. 5148 – CAT of 2010

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C. A. Sundaram, Sr. Adv., Puneet Jain, Abhinav Gupta, AnkitaGupta, Harsh Jain, Abhinav Deshwal, Abhishek Gupta, Zafar Inayat,Ms. Christi Jain, Advs. for the Appellant.

Vikramjit Banerjee, Aman Lekhi, ASG, B. H. Marlapalle,DJ. S. Attri, P. N. Ravindran, V. K. Garg, Sr. Advs., Vijay Prakash, RajeshRanjan, Ms. Nachiketa Joshi, G. S. Makker, Ms. Malini Poduval, AjitWagh, Ms. Babita Sant, Parveen Kumar Aggarwal, Sanjay Jain, PradeepKumar Mathur, Ms. Amita Singh Kalkal, Yadav Narender Singh, SachinSharma, Harish Panday, Arvind Kumar Sharma, Vivek Sharma, NeerajK. Sharma, Parveen Agarwal, Ashok Kumar Singh, Sanjay Jain, RobinEJacob, Tom Joseph, Antony M.P., Robin Khokkar, Neeraj, Sharma,Ms. Noopur Dubey, Ms. Priyanka Dixit, Advs. for the Respondents.

S. Sadasivan, Intervenor – In – Person.

The Judgment of the Court was delivered by F

ASHOK BHUSHAN, J.

1. This appeal has been filed against the judgment dated 03.12.2014of the High Court of Punjab and Haryana at Chandigarh dismissing thewrit petition filed by the appellant as well as the order dated 24.02.2016rejecting the Review Application No.21 of 2016 filed by the appellant toreview the judgment dated 03.12.2014.

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2. Brief facts giving rise to the appeal need to be noted are:

Rules have been framed under proviso to Article 309 of theConstitution, namely, the Telecommunications Engineering Service (Group H

A“B” Posts) Recruitment Rules, 1996 (hereinafter referred to as “Rules,1996”). The post of Sub-Divisional Engineer is the post governed by theRules, 1996. The post of Sub-Divisional Engineer is hundred percentpromotional post. Junior Telecom Officers are eligible for promotion undertwo methods: (i) 75% on the basis of seniority-cum-fitness, (ii) 25% onthe basis of departmental competitive examination. In the year 2000, theBTelecommunication Department initiated the process for filling up of thevacancies “Post 1996-97”. In the year 2001, the appellant waspromoted as Sub-Divisional Engineer under the seniority-cum-fitnessquota. The department announced the Limited DepartmentalCompetitive Examination(LDCE)for promotion for the 25% quota forCvacancies after 22.07.1996 which examination could be held on01.12.2002. The department issued the promotion orders dated26.04.2000 and 07.12.2001 for the officers promoted under theseniority-cum-fitness category for the vacancies occurring after23.07.1996. The result of Limited Departmental Competitive Examination was declared on 15.12.2003. The appellant also appearedDin the Departmental Competitive Examination held on 01.12.2001. Thepromotion order dated 26.05.2004 was issued for the promotion of LDCEsuccessful candidates. The order contemplated that the seniority of theseofficers will be fixed as per Rules shortly. DPC was again conductedand promotions were made against the 75% category for theEsubsequent years 2001-02 and 2002-03 on 16.09.2004. The seniority listof Sub-Divisional Engineers was issued on 12.01.2005 which senioritylist became the subject matter of the challenge in various Benches ofCentral Administrative Tribunal. In Central Administrative Tribunal,Chandigarh Bench, TA No.84-HR-2009, Dewan Chand & Ors. vs. Unionof India was filed. Before Central Administrative Tribunal, BombayFBench, TA No.6 of 2009, S. Sadasivan vs. BSNL was filed. BeforeCentral Administrative Tribunal, Ernakulam Bench, OA No.16 of 2009,Thomas Zachariah vs. BSNL and OA No.86 of 2009, V. Govindan vs.Union of India were filed. Chandigarh Bench of Central AdministrativeTribunal decided TA No.84-HR-20090 (Dewan Chand vs. Union ofGIndia) vide its judgment dated 25.08.2009. The Central AdministrativeTribunal, Chandigarh allowed the Transfer Application. The applicantsbefore the Tribunal were working as Sub-Divisional Engineers. Thequestion raised was as to what would be the mode of fixation ofseniority in TES Group ‘B’ between members of service who are H

appointed on the basis of seniority vis-a-vis those who enter the serviceafter qualifying the Limited Departmental Competitive Examination. TheTribunal held that the seniority of the incumbents has to be determinedon the basis of date of joining and not of the notional date of promotion.The applicants before the Tribunal belonged to the stream who werepromoted under seniority-cum-fitness where few of the respondents whowere impleaded before the Tribunal were those who were promotedSub-Divisional Engineers vide order dated 26.05.2004 on the basis ofLimited Competitive Departmental Examination. The Tribunal quashedthe seniority list prepared by the department and directed for redrawingthe seniority list on the basis of date of joining of the incumbents. Inparagraph 17 following was directed:

“17. In view of the above discussion, both these OriginalApplications are allowed. Orders/seniority lists impugned in thesepetitions are quashed and set aside. The respondents are directedto re-draw the seniority of officers of TES Group-B on the basisof dates of joining of incumbents, as discussed above, within aperiod of six months from the date of receipt of copy of this order.Before undertaking such exercise, respondents may inviteobjections from the persons likely to be adversely effected beforere-drawing seniority as observed herein above. No costs.”

3. The appellant was not the party to the said case in DewanChand vs. Union of India, TA No.84-HR-2009, hence, he filed thereview petition before the Central Administrative Tribunal. The reviewpetition was dismissed by the CAT on 18.01.2010. The Writ PetitionNo.5148-CAT of 2010 was filed by the appellant challenging the orderdated 25.08.2009 and 18.01.2010 passed by the Central AdministrativeTribunal, Chandigarh. The writ petition filed by the appellant wasdismissed by the Punjab and Haryana High Court vide its judgment andorder dated 03.12.2014. The High Court in its judgment dated 03.12.2014held that controversy in the case stands settled by the decision dated12.08.2014 rendered by this Court in SLP(C)No.35756 of 2012 (BSNLand others vs. S. Sadasivan and others). Against the judgment dated03.12.2014 SLP(C)No.18621 of 2015 was filed by the appellant whichwas disposed of on 16.10.2015 by this Court permitting the appellant towithdraw the SLP with liberty to file review application before the HighCourt. In pursuance of the order dated 16.10.2015 appellant filed a AB

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Areview application before the High Court which has been rejected on24.02.2016. Aggrieved by the judgment dated 24.02.2016 and initialjudgment dated 03.12.2014 this appeal has been filed by the appellant.

4. We have heard Shri C.A. Sundaram, learned senior counselfor the appellant. Shri Vikramjit Banerjee, learned Additional SolicitorBGeneral has appeared for the Union of India. Shri B.H. Marlapalle,learned senior counsel has appeared for BSNL. We have also heardShri J.S. Attri, learned senior counsel for the respondents.Shri S. Sadasivan, who has filed application for intervention andappeared in-person has also been heard. There are several otherapplications seeking impleadment in these proceedings. We do not findCany necessity to implead applicants in these proceedings. IAs seekingimpleadment in this appeal are refused.

5. Learned counsel for the appellant submits that the recruitmentRules, 1996 are silent about the seniority rules. It is submitted that theseniority has to be determined as per OM dated 22.12.1959 and variousDother subsequent OMs laying down rules for determination of seniority.It is submitted that as per Rules, 1996 there being 75% quota fixed forseniority-cum-fitness and 25% for LDCE, the ROTA rules have to bedetermined to decide the seniority between those who have beenpromoted under seniority-cum-fitness and those who have beenEpromoted under LDCE. It is submitted that the LDCE candidateseligible for the year 1996-97 have to be placed senior to the candidateseligible for 1997-98, 1998-99 and so on. Learned counsel submits thatOM dated 07.02.1986 and 07.02.1990 clarified that even if thepromotions for two grades under General Principle 5(ii) takes placethrough separate DPC’s, “…the principle of rotation of vacanciesFbetween different streams will have to be followed…”.

6. It is submitted that Union of India vs. N.R. Parmar, (2012)13 SCC 340, is clearly applicable. It is submitted that neither the Cen-tral Administrative Tribunal nor the High Court has considered the rel-evant OM dated 22.12.1959 and subsequent OMs laying down prin-Gciples of seniority due to which error has been committed in setting theseniority list finalized by the department. It is submitted that judgment ofthis Court in SLP(C)No.35756 of 2012(BSNL & Ors. vs. S. Sadasivan& Ors.) dated 12.08.2014 does not decide the issues raised before thePunjab and Haryana High Court. It is further submitted that the judg- H

ment of this Court in C.A.No.7830 of 2014(Bharat Sanchar Nigam Lim-ited & Ors. Vs. S.K. Dubey & Ors.) decided on 12.08.2014 does notconsider the relevant OMs determining the seniority. This Court in thesaid judgment fell in error in holding that ROTA rule is not applicable.

7. Learned counsel submits that the judgment of this Court inUnion of India vs. N.R. Parmar, (2012) 13 SCC 340, has againbeen reiterated by this Court in its judgment dated 03.10.2018 inC.A.Nos.5518-5523 of 2017 (Punjab and Haryana High Court vs. Stateof Punjab) that when the quota has been prescribed under the statutoryrules, the ROTA is applicable automatically in the seniority. Theappellant who was eligible earlier years for promotion has to be placedin the slot according to his eligibility and has to be given seniority of thatposition.

8. Learned Additional Solicitor General, Shri Vikramjit Banerjeesubmitted that the seniority list was drawn by the department in the ratioof 3:1 as per OM dated 03.07.1986. Seniority list Nos.6 and 7 wereprepared affecting the Rules of ROTA and quota. Although there arestatutory Rules, 1996 but the same were not for determining theseniority. The seniority was determined on the instructions issued by theGovernment of India, Department of Personnel and Training dated03.07.1986. It is, however, submitted that although department has beensupporting the seniority list based on ROTA and quota but after it wasreversed by three-Judge Bench judgment of this Court dated 12.08.2014,the department and the BSNL has implemented the judgment.

9. Shri Marlapalle, learned senior counsel, submits that the BSNLhas been following the instructions of the department on the judgment ofS.K.Dubey (supra) and if now the quota and ROTA rules areimplemented it will cause new problems.

10. Learned counsel for promotees under 75% quota submits thatpromotions were initially governed by 1981 Rules where quota forseniority-cum-fitness was 2/3 and for LDCE was 1/3. The 1981 Rulesprovided for ROTA rules and further provided that examination has tobe held every year. Rules, 1981 were replaced by the Rules, 1996 whichdo not indicate that examination has to be held every year. Further, Rules,1996 do not provide for ROTA.

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A11. Learned senior counsel further submits that the issue raised inthis appeal is covered by judgments of this Court dated 12.08.2014 (BSNL& Ors. vs. S.K. Dubey & Ors.) and judgment dated 12.08.2014 inTransferred Case No…… of 2014 (arising out of T.P(C)No.184 of 2013),Rajesh Banta & Ors. vs. Dewan Chand & Ors. Learned counselsubmits that quota of 75% and 25% is applicable but ROTA is notBapplicable.

12. Shri S. Sadasivan, who appeared as intervener submits thatbenefit of judgment of larger Bench cannot be taken away by any orderin this appeal. He submits that the present is not a case of any directrecruitment. Further, different grades are not available in the presentCpromotion exercise. He submits that OM dated 03.07.1986 is for direct recruitment.

13. We have considered the submissions of learned counsel forthe parties and perused the records.

14. The statutory rules, namely, the TelecommunicationsEngineering Service (Group “B” Posts) Recruitment Rules, 1996 havebeen framed under proviso to Article 309 according to which the post ofSub-Divisional Engineer(SDE) is a post which is to be filled up by 100%promotion. Schedule to the Rules in Column 11 provides as follows:

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i.75% on the basis of seniority-cum-fitness.

ii.25% on the basis of a departmental competitive examination.”

15. In the seniority list Nos.7 and 8, the inter se seniority of SDEFpromoted through seniority-cum-fitness and LDCE was fixed by thedepartment in the ratio of 3:1 as per OM dated 03.07.1986 which wassought to be challenged in the present case, where the appeal has arisenout of the order passed by the Chandigarh Bench of CentralAdministrative Tribunal. In TA No.84-HR-2009 (Dewan Chand vs. UnionGof India), the applicants who had approached the Tribunal werepromoted under seniority-cum-fitness and they were allocated to theseniority position below the promotees under LDCE quota under whichthey were given seniority slots earlier to date of promotion. The Tribunalhad allowed the TA No.84-HR-2009 and set aside the seniority list anddirected for drawing the seniority list on the basis of date of joining ofH

the incumbents. The appellant who claims seniority position as peroccurring of vacancy for LDCE quota is aggrieved by the direction ofthe Tribunal.

16. A perusal of Rules, 1996 indicates that Rules, 1996 providesfor the method of recruitment, age and other qualifications. The Ruleswhich have been brought on record as Annexure P-8 to the appeal donot contain any provision relating to determination of seniority. Thestatutory Rules, 1996 being silent on the question of determination ofseniority, Shri Sundaram is right in his submission that for determinationof seniority OMs dated 22.12.1959, 24.06.1978, 07.02.1986, 03.07.1986and 07.02.1990 have to be looked into. It is settled law that thedetermination of seniority can be provided by the Executive instructionsif the subject matter is not covered by the statutory rules.

17. It is to be noted that the High Court has dismissed the writpetition filed by the appellant challenging the order of the CAT dated25.08.2009 holding that the issue is covered by the judgment of thisCourt in BSNL vs. S. Sadasivan. It is necessary to look into thejudgment of this Court in BSNL vs. S. Sadasivan and proceedinggiving rise to this Court’s order dated 12.08.2014. Shri S. Sadasivanbefore CAT, Bombay Bench, Mumbai has challenged the validity of theseniority list dated 28.07.2004. In seniority list Nos.6 and 7 ofTelecommunication Engineers Group “B” S. Sadasivan was promotedunder 75% quota on 07.12.2001. On 01.12.2002 Limited DepartmentalCompetitive Examination was held for 25% quota, result of which wasdeclared on 15.12.2003. Thereafter, seniority list Nos.6 and 7 wereissued. The case of S. Sadasivan was that seniority of the applicant wasbelow to who was subsequently promoted on 26.05.2004. It is relevantto notice that the Central Administrative Tribunal, Bombay Benchallowed the application vide its judgment dated 25.11.2010 and set asidethe seniority list. The respondents were directed to recast the senioritylist on the basis of the order given by the Chandigarh Bench of CAT inDewan Chand’s case, (which is the order of the Tribunal which hasgiven rise to the present appeal) against which order BSNL filed WritPetition No.3725 of 2011 which was dismissed by the Bombay HighCourt on 21.06.2011.

18. Against the order of the Bombay High Court dismissing thewrit petition matter was taken to this Court by filing SLP(C)No.35756

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Aof 2012 (BSNL & Ors. vs. S. Sadasivan & Ors.). This Court on12.08.2014 dismissed the said SLP by passing the following order:

“SLP (C) No.35756 OF 2012

In paragraph 3 of the impugned order, the High Court hasobserved thus:

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“The question is : whether the Tribunal was right in answering thecontroversy on the principal that the correct date for reckoningseniority of the respondent ought to be taken as 7th December,2001 which is his date of joining. In our opinion, there is noinfirmity in the said view taken by the Tribunal.”

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We find no infirmity with the above view taken by the High Court.Special leave petition is, accordingly, dismissed.”

19. The order of the CAT, Bombay which was passed issuingdirection for casting of the seniority on the basis of the judgment ofDDewan Chand passed by CAT, Chandigarh, thus, has been receivedfinal approval by this Court.

20. At this stage, we may consider one more submission whichhas been raised by the learned counsel for the respondents. Thesubmission which has been raised by the learned counsel for therespondents is that a three-Judge Bench of this Court in BSNL vs. S.K.EDubey (supra) has finally determined the controversy and held that ROTArule will not be applicable for determining the seniority of Sub-DivisionalEngineers. We may notice the judgment of this Court dated 12.08.2014in BSNL vs. S.K. Dubey in some detail. BSNL has filed the appeal. Inthe said appeal the challenge was made to the order of CAT, JabalpurFwhich directed the appellant, BSNL to assign the notional date ofpromotion to Sub-Divisional Engineers which order was set aside by thisCourt by the said judgment. Paragraphs 2 to 4 of the judgment are asfollows:

“2. This appeal by special leave is directed against the order ofGthe Central Administrative Tribunal, Jabalpur, whereby theoriginal application filed by the respondents herein was allowedand the direction has been given to the present appellants(respondent therein) to assign the notional date of promotion asSub Divisional Engineers (SDEs) with consequential benefits such H

as counting of experience for further promotions, annualincrements etc. to the original applicants with effect from23.01.2002.

3. The order passed by the Central Administrative Tribunalcannot be sustained for more than one reason. In the first place,there is no rule with regard to the subject service which givesbenefit of assigning the notional date of promotion withretrospective effect. The present respondents were employeesof the Department of Telecommunications, Government of Indiaand were working as Junior Telecom Officers prior to 1996. Inexercise of the powers conferred by the proviso to Article 309 ofthe Constitution of India, the Telecommunications EngineeringServices (Group ‘B’) Recruitment Rules, 1996 were made witheffect from 22.07.1996. Inter alia, these rules provide for methodof recruitment, age limit and other qualifications for therecruitment by way of promotion to the post of TES Group ‘B’.

4. As per these Rules, 75% promotion is to be made on the basisof seniority-cum-fitness from amongst Junior Telecom Officerswith three years regular service in the Grade and 25% is to bepromoted on the basis of Departmental Competitive Examinationfrom Junior Telecom Officers with three years r10egular servicein the Grade. The crucial date for determining the eligibility is 1stJuly of the year to which the vacancy pertains. 1996 RecruitmentRules do not provide for ROTA nor does it provide for holdingDepartmental Competitive Examination for the vacancies everyyear in contra-distinction to the earlier Rules of 1981 entitledTelegraph Engineering Service (Group ‘B’ Posts) RecruitmentRules, 1981. 1981 Rules, inter alia, had a provision that inter seseniority of the officials who have qualified in the DepartmentalQualifying Examination shall be in the ratio of 2:1 starting with theofficers selected by the method of selection by DepartmentalPromotion Committee on the basis of Departmental QualifyingExamination. It also provided that there shall be normally oneexamination consisting of two parts called Qualifying-cum-Competitive Examination for promotion to the service which shallbe held at least once in a calendar year. The ROTA rule as wellas holding the examination at least once in a calendar year which A

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Awere provided in the 1981 Rules are conspicuously absent in the1996 Rules. The validity of the 1996 Rules has not been put inissue by any one.”

21. This Court further held that in the absence of any expressprovision in the rules, no promotion or seniority can be granted from aBretrospective date when the employee has not been born in the cadre.

22. There is one more reason to hold that the present appeal iscovered by three-Judge Bench judgment of this Court dated 12.08.2014.Against the judgment of Tribunal in TA No.84-HR-2009 (Dewan Chandvs. Union of India) a writ petition was filed in Punjab and Haryana HighCCourt being CWP No.5133/CAT of 2010 (Rajesh Banta and others vs.Central Administrative Tribunal and others). Thus, in the said writpetition the same order of the Tribunal dated 25.08.2009 was underchallenge which has been challenged by the appellant herein. This Courttransferred CWP No.5133/CAT of 2010 (Rajesh Banta and others vs.Central Administrative Tribunal and others) by Transferred Case (Civil)DNo……of 2014(arising out of T.P.(C)No.184 of 2013) and by thejudgment dated 12.08.2014, the three-Judge Bench dismissed the writpetition which was filed challenging the order of the CAT in DewanChand. The order of this Court is brought on record at pages 181-182 ofthe paper book which is to the following effect:E“TRANSFERRED CASE (CIVIL) NO. OF 2014

(Arising out of T.P.(Civil) No.184 of 2013)

RAJESH BANTA & ORS. PETITIONER(S)

VERSUS

FDEWAN CHAND & ORS.

RESPONDENT(S)

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Transfer petition is allowed. Writ Petition being C.W.P. No.5133/CAT-2010 titled “Rajesh Banta and Others v. CentralAdministrative Tribunal and Others” is transferred from PunjabGand Haryana High Court to this Court and is treated asTransferred Case.

2. We have heard Mr. Sunil Kumar, learned senior counsel for thepetitioners.

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3. For the reasons stated by us in our order passed today in CivilAppeal arising out of SLP(C) ...2/- -2- No.39932 of 2012 titled‘Bharat Sanchar Nigam Ltd. & Ors. vs. S.K. Dubey & Ors.’, thetransferred case is liable to be dismissed and is dismissed accord-ingly. No costs.

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.......................CJI.B( R.M. LODHA )

.........................J. ( KURIAN JOSEPH )

NEW DELHI; ........................J.AUGUST 12,2014 (ROHINTON FALI NARIMAN )”

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23. When three-Judge Bench of this Court following the pronounce-ment in BSNL & Ors. vs. S.K. Dubey & Ors., judgment of the sameday, has dismissed the writ petition against the same very judgment ofthe CAT of Chandigarh Bench in Dewan Chand vs. Union of India, thefate of this appeal is sealed by the said judgment by dismissing the writpetition against the order of the Central Administrative Tribunal,Chandigarh Bench in TA No.84-HR-2009. The writ petition filed by theappellant has to meet the same fate. In view of the facts as noticedabove that the controversy raised in this appeal is covered by three-Judge Bench judgment dated 12.08.2014 we see no necessity to delveinto various other arguments raise in this appeal. We are not persuadedto take any different view to one which has been taken by three-JudgeBench as noted above.

24. We, thus, hold that the present appeal deserves to be dis-missed in view of the judgment of this Court dated 12.08.2014 Trans-ferred Case (Civil) No……of 2014(arising out of T.P.(C)No.184 of2013)(Rajesh Banta & Ors. vs. Dewan Chand & Ors.) and judgment ofthe three-Judge Bench of this Court in BSNL & ors. vs. S.K. Dubey &Ors. decided on 12.08.2014. The appeal is, accordingly, dismissed.

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Divya Pandey

Appeal dismissed.