Synopsis on Behalf Sh A K Behra counsel for the applicant in CAT Bombay.

Considering the OA, counter Reply, responder by the respondents and applicant, the following
facts undisputedly in the present case:-

a) In MES, prior to 1996, there had to be two grades of Supdts i.e Supdt Gde II & Gde I. the
Gde II was the entry post in the pay scale of Rs 1400-2300 and also feeder post to supdt
Gde I. The Supdt Gde I was the promotional post in the pay scale of Rs 1640-2900. The
supdt Gde I was further feeder post to the post of Asstt Engineer in pay scale 2000-3500.
b) On 22.3.1991, Min of Urban Development issued circular for grant of time bound pay
upgradation for JE’s in CPWD.
c) The supdt of MES filed OA before the CAT Banglore bench for the same benefits of time
bound pay upgradation as paid to JE’s in CPWD. The OA was allowed with a direction to
grant same pay benefits to supdt of MES as JE’s of CPWD.
d) The UOI filed SLP in the matter and the same was rejected by the Appex Court.
e) The MOD issued letter dated 25.4.96 to implement the judgment of Banglore bench of the
tribunal. In the implementation of the judgement the pay scale of Rs 1640-2900 pertaining
to supdt Gde I as functional and promotional as per RR’s of 1983, was declared non
functional and non promotional wef 1.1.1986.
f) The UOI further issued letter dt 24.6.96 clarifying the matter that with the issue of letter dt
25.4.96, the distinction between Gde II & Gde I has been eliminated.
g) By implementation of Banglore bench order uphold by Supreme Court, by circular dt
25.4.96, the UOI started the process of merger of the two post since the scale of Gde I was
no more in existence and the next promotion avenues to Supdt Gde II were only AE
therefore only the remedy available with UOI was to merge the two post in a common post
similar to CPWD.
h) The common post came into existence on 9.7.99 as Junior Engineer. The RR’s of Junior
Engineer were published on 30.4.2001 vide SRO 78.
i) The UOI conducted No of DPC’s from common post of JE to next higher post of AE and
nearly 600 JE’s were promoted to the post of AE wef 2000 on words and till 2004.
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The applicant here in is a degree holder JE in MES. He is aggrieved by the impugned order dt
19 Apr 2010 issued by in official respondents for conduction of DPC for Supdt Gde I from supdt Gde
II for a period of 1995 to 1999. Learned counsel Mr A.K Behra on behalf of the applicants argued that
the conduction of such retrospective DPC is neither as per law nor feasible after a lapse of more then
15 yrs. He pointed out that after issuance of letter dated 25.4.1996. the promotional element of RR’s of
1983 for promotion to the post of Gde I have been ironed out as the pay scale Rs 1640-2900 pertaining
to the promotional post of Gde I as per RR’s of 1983 has became non promotional and non functional
therefore the RR’s of 1983 have become non operational and redundant. With this reason only UOI
could not made further promotion to the post of Gde I wef 1995 and the same has been made clear in
circular dated 24.6.1996 that “ with the issue of letter dated 25.4.96, the distinction between Gde II
& Gde I has been eliminated”. The counsel for the applicant pleaded that on 9.7.99. The common
category of JE has came into existence and nearly 600 promotions have been made by the official
respondent from the common category of JE to the next higher post of AE based on RR’s of 1978.
Accordingly, the right of promotion to the post of AE form JE has been accruled to the applicant
against the vacancy year 2004-05. The junior degree holders to the applicant have been promoted as
AE in the vacancy year 2004 -05 in implementation of OA NO 1124/2005 and the claim of the
applicant have been confirmed by the UOI by issuing presidential sanction dated 18.7.2006 but the
said exercise of the UOI will adversely effect the applicant as all those persons who have been declared
ineligible as per court verdicts uphold by the different courts while challenging the promotion of
degree holders promoted in implementation of OA NO 1124/2005 will become eligible and will again
a undue benefit of eligibility.
The Ld counsel further contested that once the common category has already came into
existence wef 9.7.99 and further promotions have been made to the next higher post of Asstt Engineer
the exercise of retrospective DPC will not only effect the rights of the applicant but will unsettle the
whole settled position of the cadre. The Ld counsel for the applicant also pointed out the decision of
the Ld tribunal of Pb Delhi in OA No 2105/2007 and 1098/2007 with other connected OA’s where the
diploma holders challenged the promotion of 05 degree holders promoted in implementation of the
OA No 1124/05 delivered by CAT (Pb) New Delhi where the same plea for conduction of DPC from
Gde II to Gde I was taken in specific and the same was rejected by the learned tribunal and uphold as
under:-
 -3-

Para 16 :- “ The plea that there was a quota to be followed from 1996 to 1999, that the
eligibility of the applicants for promotion had not been taken notice of and, therefore,
by a process of review DPC, they were to be considered for promotion to the post of
Supdt Gde I, as a stepping stone for promotion as Assistance Engineer to the vacancy
which existed at that time, etc are too far fetched. They might be stale claims incapable
of being agitated by an application filed in the year 2007 with success. The sheer un
workability of the preposition also has to be noted. There were no Post of supdt, the
difference between the two grades had been ironed out, and a DPC could not have
carried on deliberation on imaginary situations.
Para 17: The un workability of a similar proposal, and the network of such claims had
been gone into by the Principle bench in M.C Singhania & Vs UOI and others (OA
1663/ 06) (Full bench) decided on 06.9.2007. the decision has rested on a catena of
judgement of the Supreme Court to hold that convening of DPC to considered claims of
yester years, putting the clock back may not be prudent or an acceptable preposition.
The reasoning is unexceptionable and we respectfully follow the dictum. In the
circumstances, we hardly find any grounds to go into such claims, as attempted to be
highlighted.
Para 18: Resultantly, we hold that the applications have no merit. They are therefore,
dismissed, no costs.

The Ld counsel further contested that the above judgment of the Ld tribunal was further
challenged by the diploma holders by filling a W.P (Civil) 4462/2008 in Hon’ble High Court of Delhi.
The same has been dismissed on 3.7.2009 and the above law has been established. The further review
filed by the diploma holders in Hon’ble High Court of Delhi has been dismissed as with drawn on
7.5.2010 and the matter has attained finality since there is no SLP filed / pending before the Supreme
Court as on date.
The Ld Counsel also pointed out certain names of the diploma holders who were applicants in
OA No 2105/2007 and other connected OA’s and have made specific pray for conduction of such DPC
of Gde II to Gde I for 1995 to 1999 but lost their claims, are figured in the list of persons attached
alongwith impugned order for such retrospective DPC which the Hon’ble Tribunal rejected and such
 -4-

rejection have further been uphold by Hon’ble High Court Delhi in their matter where they are
applicant. The act of the official respondents in conduction of such DPC is giving them undue benefit
of such back dated promotion and undue eligibility for next promotion of AE in contrary to judicial
pronouncements. The Ld counsel for the applicants also pointed out certain other judgments where the
matter has been dealt with by the courts. Like in the matter of OA No 339/2004 in the matter of Chand
Singh V/S UOI further uphold by Hon’ble High Court of J&K in SWP 172/2005. The Hon’ble High
Court has uphold that “By reasons of merger effected in 1999, by a fiction of law, the said
recruitment rules of 1978 stood altered with effect from the date of merger and accordingly from
that date Gde II supdt who had not been promoted as Gde I supdt, must be deemed to have
acquired the status of Gde I supdt and eligible for promotion to the post of Asstt Engineer”.

The above decision of the Hon’ble High Court is final and binding as the same has never been
challenged by anyone in Supreme court till date and the same is now barred by time limitation.

The applicant also alleged the act of the official respondents and stated that the act of the
respondent No 3 and 4 is in question. He contended that after issuance of letter dt 25.4.96, the UOI has
started the action of merger of the two post and consistently taken a stand for non conduction of DPC
for Gde II to Gde I. only once on 28.2.2006 UOI proposed the said DPC for correction of seniority of
JE’s but the same was stayed vide order dt _______________ by Hon’ble (Pb) New Delhi in OA No
752/2006 and realizing well the law position and repercussions of such retrospective DPC over the
whole cadre of JE’s, they themselves withdraw the said order dt 28.2.2006 and the OA was declared as
infectious. They further issued a series of letters with clear intension not to conduct such retrospective
DPC. The some of such letters are as under:-
a) Letter dt 28.3.2008
b) _____
c) _______

In the meanwhile when Hon’ble CAT Chandigarh bench issued its desire to conduct such DPC
to correct the seniority of JE’s vide its order dated 6.7.2006, the UOI after taking advice of the LA
defence filed CWP in Hon’ble Punjab & Haryana High Court to challenge the order dt 6.7.2006. the
 -5-

UOI in the writ filed by them has shown its constraints to implement the order dt 6.7.2006 and also
protested that this DPC will unsettle the whole settled issue in the Cadre but in the meanwhile
respondent 3 & 4 came into existence in the HQ E-in-C’s branch and at the time of final argument they
submitted a synopsis to the Hon’ble High Court without getting the same vetted by LA defence,
showing their willingness to conduct such DPC for their personal motives to favour the diploma
holders. Influenced by the said synopsis Hon’ble Punjab & Haryana High Court delivered its
judgement upholding the order of Tribunal Chandigarh Bench dt 6.7.2006. The said order of Hon’ble
Punjab & Haryana High Court was further challenged in Hon’ble Supreme court by one of the
effected Degree holder and Hon’ble Supreme Court vide order dated _______________ granted the
“Leave” in the matter and the same is pending before the Hon’ble Supreme Court.

The respondents 3 & 4 without giving any consideration to the fact that the order of Hon’ble
Punjab & Haryana is subjudice in the Hon’ble Supreme Court and the order of Hon’ble High Court
Delhi is final as on date since there is no SLP till date, proceeded further to implement the judgement
of Hon’ble Punjab & Haryana knowing well that it will effect a No of employees like the applicants
who are not even party before the Punjab & Haryana High Court and the order is not binding to them
but issued the impugned order to conduct DPC from Gde II to Gde I for the period 1995 to 1999. Not
only this but they have given the subject “potential contempt court Case”. Just to mislead the
authorities. It is made confirmed that there is no contempt in the matter on the date of issue of
impugned order. The counsel for applicants also pointed out the malafide dedication of respondents 3
& 4 that the stay was granted by this Hon’ble tribunal on 10.6.2010, one diploma holder Mr Baiju was
present in the court who opposed the stay in the court but when the stay was granted the respondents
No 3 & 4 were known about the stay. The respondent 3 & 4 acted beyond their limitation and issued
DPC for the year 1995 to 1996 for 23 persons deliberately back dated on 9.6.2010 and produced before
the court just to prove that the impugned order has already been taken effect to. The Ld counsel for the
applicant also pointed out that in the impugned order the integrity & desires have been asked for the
vacancy year 1996 to 1999 not for 1995 and DPC for the year 1995 have been conducted without
integrity & dossiers as the called for integrity & desirers are not sufficient for the DPC of 1995-96.

Mr Vinay Garg the Ld counsel for respondent NO 9 opposed the contentions of the applicant
 -6-

and contested that the promotions for Gde II to Gde I were governed by the rules of 1983 and these
rules were only replaced on 30.4.2001 by the new rules of Junior Engineer vide SRO 1978 therefore
the same remained in force till 2001 accordingly the promotions should be made in accordance to these
rules till 2001 but Hon’ble High Court has directed to conduct the same till 1999 as per note No 1 of
RR’s of 2001 the common category of JE came into existence wef 9.7.99. The Ld counsel for
respondent pointed out that in this interregnum period the deptt appointed Ex-serviceman Gde I against
DR quota of 12 ½% as per RR’s of 1983 then 87 ½% quota also should be followed.

The Ld counsel for respondent also argued for maintainability of the OA that the OAs has been
filed to challenge the order issued by official respondents to comply with the directions of Hon’ble
High Court Punjab & Haryana order dt 5.9.2009. Therefore it is not within the jurisdiction of this
tribunal to deal with the matter.

The Ld counsel for the respondent also pointed out that Hon’ble High Court Punjab & Haryana
has delivered the decision after taking note of the order of Hon’ble High court of Delhi therefore order
of High Court of Punjab & Haryana will prevail.

Mrs Shah Ld counsel for official respondents 1 & 2 accepted the argument of the counsel on
behalf of the respondent No 9

Considering the rival contusion of the parties firstly we deal the issue of maintainability of the
OA. The applicant has filed the present OA as he is aggrieved by the impugned order dt 19 Apr 2010
issued by official respondents in compliance of the direction of the Hon’ble High Court Punjab &
Haryana where he was not the necessary party and the same is not binding to him. The first remedy of
his grievance survives in CAT. Therefore the OA is well maintainable. Secondly the applicant has
pointed out the other order of the Hon’ble High court of Delhi which is in conflict to the order of
Hon’ble High court Punjab & Haryana and the SLP has also been admitted by the Hon’ble Supreme
Court against the Punjab & Haryana High court order, in that event implementation of the order of
Ho’ble Punjab & Haryana High court by the official respondent without waiting the final out come of
Supreme Court which makes the applicant prejudice, well survives in the jurisdiction of this tribunal.
 -7-

Now we proceed on merit. After issuance of order dt 25.4.96 the functional and promotional
scale of the Supdt Gde I was declared as non functional and non promotional w.e.f 1.1.1986. the
benefits of FR 22 (I) (a) was not admissible on grant of this scale more over the benefits of FR 22 (I)
(a) already granted to Supdt Gde I’s promoted prior to 25.4.96 was withdrawn while fixing the pay.
Whereas the pay scale of the AE was declared as functional as well as promotional one. Therefore for
Supdt Gde II the next promotional opportunity remain as AE only. With this reason only UOI started
the process of merger of the two post i.e Supdt II & I and finally the same could came into existence on
9.7.99 as Junior Engineer. It is an admitted fact that non of the employer ever raised the grievance for
non conduction of DPC from Supdt Gde II to Gde I for this period but accepted the benefits of pay and
allowances and the same become final after rejection of SLP of UOI filed in the Hon’ble Supreme
Court. It is therefore beyond doubt that the promotional element for the post of Gde I In RR’s of
1983 was ironed out in implementation of the Bunglore Bench of the tribunal by order dt 25.4.96
and RR’s of 1983 became redundant, however the same remain in force till 30.4.2001 (the date of
promulgation of new RR’s of Junior Engineer vide SRO 78). The Hon’ble tribunal principle bench
Delhi in OA no 2105/07 and 1098/07 with other connected OA’s has dealt the issue on the basis of MC
Singhania, the order of full bench, which was based on catena of judgements of the Appex court and
uphold that convening of DPC to consider the claim of yesters years, putting the clock beck, may
not be prudent or acceptable prepositions. The above law position was further uphold by Hon’ble
High court of Delhi. We respectfully follow the dictum. We are also inclined to the fact as pointed out
by the counsel for the applicant that there are also other judicial pronouncement establishing the
present issue like order dt 02.3.2009 delivered by Hon’ble High court of J&K in SWP 172/2005 where
the Hon;ble High court has established that Supdt Gde II who could not be promoted as Gde I must be
deemed to acquire the status of Gde I supdt on 9.7.99, the date of merger of the two post and creation
of common post of JE’s. The conduction of such retrospective DPC for Gde II to Gde I will nullify the
judicial pronouncement by granting the status of Gde II to as that of Gde I prior to 9.7.99 in contrary to
above judgement.

We are afraid that the conduction of such retrospective DPC for correction of seniority of JE’s
viz-a-viz direct entry supdt Gde I (Ex Serviceman) may invite a series of litigation as there are
numerous of promotions made from the common category of the JE to the next higher post of AE so
 -8-

the complete settled seniority of the employees in the next higher post of AE will be unsettled and the
employees will suffer who are no where necessary party in the litigation. In the case of CAT
Chandigarh, Ex-serviceman are made the necessary party and the issue involve is the illegal
appointment of the Ex-serviceman as Supdt Gde I and not the issue of conduction of such retrospective
DPC.

As regard the contention put forth by counsel of respondent No 9 that the order of Hon’ble
High Court of Delhi has been taken note by Hon’ble High court Punjab & Haryana while delivering
the judgement dt 05.9.2009, it is clear that the note was taken only for the purpose to decide date of
merger as 9.7.99 to modify the order of CAT Chandigarh Bench for DPC upto 1999 in lieu of 2001.

We are in agreement with the views of the counsel of the applicant for the partial act at the part
of official respondent 3 & 4. The UOI being nodal employer must act fairly and judiciously but in the
present case officials respondent 3 & 4 have acted beyond their jurisdiction. They firstly withdrawn
their own order dt 28.2.2006 issued for conduction of DPC from Gde II to Gde I and OA No 752/2006
was made to be declared as infectious by the Hon’ble CAT Delhi, which has already granted the stay
in the matter. The order of CAT Chd Bench was challenged by the UOI by filing the writ in Hon’ble
High court of Punjab & Haryana after obtaining the advice of LA Defance to file such writ but they
have taken a summer Sault at the time of final argument and submitted the synopsis without consulting
the LA Defence. They submitted before the Hon’ble High court that non conduction of DPC from Gde
II to Gde I for the period of 1995 to 1999 has creative anomalous situation in the department. It was in
contradiction to their own stand taken in the writ as well as in series of circulars issued by them in
support of non conduction of such DPC. They preliminary influence the order of Hon’ble High Court.
Such act at the part of respondent 3 & 4 is undoubtfully is a contemptuous act. The further conduction
of DPC from Gde II to Gde I for a period of 1995-1996 by the official respondent back dated on
9.6.2010 knowing well that stay have been granted by this tribunal on 10.6.2010, without considering
the ACR’s, dossiers, integrity certificate for this years proves their dedication and dare for their
personal commitments. The ACR dossiers asked for the period 1996 to 1999 in the impugned order are
not sufficient for the DPC of 1995-1996. Further conduction of the DPC only for the year 1995 -1996
in piecemeal in lieu of 1995 to 1999 proves that the officials respondents 3 & 4 could not published
 -9-

the DPC for three years in a short period of time back dated therefore just to establish that their
impugned order have been complied with they have tried their best. Further “potential contempt
court case” in the impugned order, admittedly having no contempt proves that they are also
misleading to their superiors. In view of the above facts we quash the DPC dt 9.6.2010 as being illegal
and malafide.

In the above facts and the circumstances of the case we are of the considered view that the
order issued by the Hon’ble High court of Punjab & Haryana dt 5.9.2009 is preliminary influenced by
the official respondent and the same is subjudice before the Hon’ble Supreme Court and the “leave”
has been granted in the matter. On the other hand the order of CAT PB New Delhi further uphold by
the Hon’ble High Court of Delhi which is in conflict to the order of the Punjab & Haryana High Court
is final as on date admittedly there is no SLP filed by the effected parties or UOI till date, therefore in
the present situation, It will be in the interest of justice to everyone that the official respondent should
wait the final outcome of the Hon’ble Supreme court to avoid unsettling situation of the cadre again
and again.

The OA is allowed. The impugned order dt 19.4.2010 is hereby quashed. The parties shall bear
their own costs