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Judgment
Heard Mr. S.C. Keyal, learned Assistant Solicitor General of India representing the petitioners as well as Mr. S. Dutta, learned counsel for the
respondent.
The matter pertains to grant of promotion to the respondent herein to the post of Office Superintendent, which has been directed to be done by
the order of the Central Administrative Tribunal, Guwahati Bench in the Original Application instituted by the respondent herein.
The respondent is an Upper Division Clerk in the Office of the Executive Engineer (Electrical), Guwahati Electrical Division-I, Central Public
Works Department (CPWD). An Office Memorandum dated 10.01.2013 was issued inviting applications from Upper Division Clerks having five
years service in the cadre as on 15.02.2013 for filling up the vacancies in the grade of Office Superintendent through Departmental
Qualifying/Competitive Examination. Under the CPWD Manual the criteria for promotion to Head Clerk/Office Superintendent is confined to
Upper Division Clerks having five years regular service in the grade. The vacancies are to be filled up in the ratio of 50% through regular service in
the grade and 50% on the basis of seniority-cum-fitness. In other words, it is to be in the ratio of 50% on Merit Quota and 50% on Seniority
Quota. The respondent had responded to the advertisement vying for promotion under Merit Quota. Result of the examination was declared on
13.11.2013 and under Merit Quota the name of the respondent figured at serial no. 4 of the Waiting List. Names of 14 (fourteen) candidates
found place in the main list under Merit Quota. By Office Order dated 21.03.2014 as many as 34 (thirty four) candidates were promoted to the
post of Office Superintendent, which included the 14 (fourteen) candidates under the Merit Quota. The said Office Order dated 21.03.2014 came
to be challenged by the respondent before the Tribunal on the primary ground that the same was in violation of the criteria laid down in the CPWD
Manual which prescribed promotion in the ratio of 50% through regular service and balance 50% on the basis of seniority-cum-fitness. As the
selection exercise was carried out to fill up 34 vacancies in the grade of Head Clerk/Office Superintendent, there were 17 (50%) clear vacant
posts to be filled up from the list under merit quota. The respondent being the 17th candidate under the Merit Quota List (the incumbent at serial
no. 6 of the main list under Merit Quota i.e. Sri Kamal Rudra Paul not having accepted the offer of appointment), he ought to have been appointed
accordingly, following the quota percentage prescribed in the CPWD Manual.
The stand of the petitioners herein is that at the time of examination there were 29 (twenty nine) vacancies, which worked out to 15 (fifteen)
vacancies under Seniority Quota and 14 (fourteen) vacancies under the Merit Quota as per CPWD Manual. Further contention is that in addition
to these vacancies, there were 5 (five) nos. of unfilled vacancies from the year 2010 - 2011 under the Seniority Quota, which were also required
to be filled up as backlog vacancies. Therefore, taking into account the 5 (five) nos. unfilled vacancies, 20 candidates (15+5) were promoted
under Seniority Quota out of the total 34 nos. vide aforesaid order dated 21.03.2014. As 50% vacancies out of the 29 nos. of existing vacancies
had been filled up by issuing promotion orders to 14 candidates under merit quota, therefore, there could be no question for making promotion
from the Waiting List, particularly the respondent herein.
The 5 (five) additional vacancies being treated as backlog vacancies under seniority quota was disbelieved by the Tribunal, primarily on the
basis of the pleaded stand of the petitioners herein taken in another Original Application No. 12/2013, which had been instituted by one Smti.
Swapna Chakraborty and who claimed appointment to the post of Office Superintendent in an earlier exercise of promotion undertaken for the
vacancies for the year 2010-2011. The Tribunal held that the authorities could not justify the 5 (five) backlog vacancies by producing any tangible
evidence. Accordingly, a direction was made to consider the promotion of the present respondent by taking into account the total vacancies to be
34 posts of Office Superintendent and by strictly adhering to the criteria of 50% Merit Quota and 50% Seniority Quota, as laid down under the
CPWD Manual.
Statements with regard to the 5 (five) unfillled vacancies for the year 2010-2011 (Unreserved- 4, Scheduled Caste- 1) under seniority quota
which were to be filled up as backlog vacancies was made, without any further specifics, at para 4.2 of the written statement/affidavit-in-oposition
filed by the petitioners before the Tribunal. In the said paragraph it is stated that at the time of issuing examination notification, total vacancies stood
at 29, out of which 50% of the post was to be filled up from seniority quota and the balance 50% from the merit quota i.e. 15 nos. and 14 nos.
respectively. Taking into consideration the 5 (five) unfilled posts from the year 2010-2011, orders for 20 nos. for promotion for Office
Superintendent under seniority quota (15 + 5) and 14 nos. under merit quota was issued. In this way, a total 34 (20 + 14) promotions were made
vide the impugned order dated 21.03.2014. It is further stated that out of the 14 persons who were issued promotion order under merit quota
from the main list, one candidate i.e. Kamal Rudra Paul did not accept promotion and, as a result the candidate figuring at serial no. 1 of the
waiting list i.e. one Sri Basuki Ghosh was considered for promotion. As such, all promotions from merit quota had been exhausted. However, as
alluded to above, the Tribunal vide order dated 13.02.2015 discarded this theory of backlog propounded by the petitioners and, accordingly,
allowed the Original Application. A review petition was filed by the petitioners herein for review of the order dated 13.02.2015 where, for the very
first time, narration was made as regards the 5 (five) backlog vacancies for the year 2010-2011. By drawing a Chart giving particulars of
respective office orders, number of posts under merit quota which were offered and accepted and the number of posts under seniority quota which
were offered and accepted, a conclusion was shown in the Chart that there remained five unfilled vacancies. The particulars in the Chart have also
been explained under Ground II of the review petition. At Ground Nos. III and VI it has been contended to the effect that the backlog of five
vacancies were created after 24.10.2013, that is, after six months of delivery of judgment in the aforesaid O.A. 12/2013 (Smti. Swapna
Chakraborty -vs.- Union of India and Others) and, as such, the outcome in Swapna Chakraborty?s case would not operate as a bar for utilizing
these five backlog vacancies under seniority quota. On the aforesaid facts, which were brought on record only in the review petition, the petitioners
tried to justify that promotions so issued for filling up 34 posts ( 20 from seniority quota and 14 from merit quota) was not vitiated. The order of
the Tribunal in discarding the five additional vacancies as backlog vacancies and making direction to consider the case of the respondent for
promotion to the post of Office Superintendent by adhering to the criteria of 50% merit quota and 50% seniority quota as against total vacancies of
34 posts was, therefore, contended to be not sustainable in law.
To test the arguments advanced by the petitioners on the primary issue as to whether the five additional vacancies for the year 2010-2011 could
be treated as backlog vacancies under seniority quota in the subsequent exercise undertaken for promotion pursuant to Advertisement dated
10.01.2013, we at the outset hold that the five additional vacancies added to the seniority quota (15+5) was an improper exercise and wholly
contrary to the quota percentage prescribed under the CPWD Manual for promotion to Head Clerks/ Office Superintendents. It is seen from the
Office Memorandum/Advertisement dated 10.01.2013 that the cut-off date with regard to eligibility of Upper Division Clerks vying for the post of
Office Superintendent was as on 15.02.2013. As against this, the pleaded stand of the petitioners is that the backlog of five vacancies had been
created after 24.10.2013, which is apparently much after the aforesaid Advertisement dated 10.01.2013 and cut-off date of 15.02.2013. A
backlog vacancy is a vacancy which have remained unfilled from a previous year, which in the instant case could arise from the year 2010-2011.
There cannot be a concept that vacancies can be created as backlog vacancies at a much later point of time. By introducing the concept of
backlog vacancies in the instant case, a fiction is sought to be created by the petitioners to justify the imbalance made to the quota percentage
prescribed under the CPWD Manual. It is also seen from the pleaded stand of the petitioners in the other case that was instituted by Smti. Swapna
Chakraborty that out of the 20 nos. of vacancies which were available as on 31.03.2011, that is, in the financial year 2010-2011, as many as 19
vacancies had been utilized. Only one person from the merit quota at serial no. 6 of the merit list could not be given promotion due to departmental
vigilance proceedings. It was also the pleaded stand therein that as regards filling up of vacancies pursuant to present Office
Memorandum/Advertisement dated 10.01.2013, there was no provision to fill up new vacancies from the old panel and, in fact, the Advertisement
of 10.01.2013 was exclusively for new vacancies which were to be filled up by departmental examination. It is also seen from the materials on
record that all the 19 vacancies that had been utilized in the earlier round of promotion exercise, the petitioners never pleaded that the transfers and
postings following the appointment of the 19 candidates did not ever take place. This leads to the only conclusion that all vacancies, except for one
vacancy which was kept on hold due to vigilance proceedings, had been fully exhausted. Thus, the 34 vacancies which were acted upon in the
present exercise were all new existing vacancies. The concept of five additional vacancies as backlog vacancies do not fit into the scheme of things.
In this respect, we find no infirmity in the order of the Tribunal.
Before parting with the case it may be observed that by means of the affidavit-inopposition filed by the respondent on 30.11.2016, it is brought
on record to show that there are as many as 11 vacancies as on date in the post of Office Superintendent. There is also an order passed by this
Court dated 21.12.2016 directing that one post in the cadre of Office Superintendent in CPWD be kept aside in order to protect the interest of
the respondent. Having regard to the above, the petitioners shall now act accordingly to give full meaning to the directions made by the Tribunal in
its order dated 13.02.2015 passed in O.A. No. 154/2014.
For the reasons stated above, we find no merit in this writ petition. Accordingly, the same stands dismissed, however, without any order as to
cost.