Sanjay Kumar Singh v. Union of India & Anr.

1. Rule D.B.

2. With the consent of both the parties, the matter is taken up for final disposal.

3. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks directions to direct the respondents to decide inter se seniority amongst the merged Grade of Overseer & BR-II in implementation of the 6th Central Pay Commission, after inviting objections from the concerned employees and till finalisation of the 2014:DHC:4335-DB seniority list, no further promotion should be made from the merged cadre.

4. We have heard the contentions raised by the learned counsel for the petitioner as well as the submissions made by the learned counsel for the respondents.

5. The petitioner, who is a diploma holder in Civil Engineering, was appointed as Overseer on 1st April 1986 with respondent No. 1. He was promoted to the post of Superintendent BR Grade II w.e.f. 25.09.1991 and thereafter to the post of Superintendent BR Grade I w.e.f. 09.04.2008. The Sixth Central Pay Commission recommended the upgradation of the post of Overseer and then merged it with other promotional post of superintendant BR Grade II and then the post was placed in the revised pay band, i.e., PB-II of Rs.9300-34800 alongwith Grade Pay of Rs.4200. The relevant portion of the Sixth Central Pay commission is reproduced as under:- “Border Road Organisation Overseer (Civil) 7.39.22 Higher pay scale has been demanded for the post of Overseer (Civil in Border Roads organisation on the ground that the minimum qualification for the post is Diploma in Engineering. The post carries minimum direct recruitment qualification of Diploma in engineering. These minimum qualifications had been prescribed in 1996. Fifth CPC, in their Report submitted in 1997, had recommended the scale of Rs.5000-150-8000 for all posts carrying minimum direct recruitment qualification of Diploma in Engineering. This recommendation was accepted. The post should consequently have been extended the scale of Rs.5000-150-8000 w.e.f. 1.1.1996. This was, however, not done. The Commission, accordingly, recommends that the post of Overseer may be upgraded and merged with their promotional post of Superintendent BR Grade II (Present scale Rs.4500-

8000. Since the Commission has recommended merger of the scales of Rs.5000-150-8000, Rs.5500- 9000 and Rs.6500-10500, the post will be placed in the revised Pay Band PB-2 of Rs.9300-34800 alongwith a grade pay of Rs.4200. Commission also advises the Government to implement this retrospectively from 1.1.1996, at least for the purpose of fixation of pay.

6. The Central Government had implemented the recommendation of the said Sixth Pay Commission and the respondents had prepared a Master Seniority List consisting of the merged and re-designated post of Junior Engineer (Civil) based on the orders issued by the Ministry of Road Transport and Highways, BRDB note No. F.No.BRDB/06/166/2010/GE-I dated 13.5.2010 and circulated it to all concerned on 5th December 2012. The claim of the petitioner that his seniority on the post of Junior Engineer (civil) should be counted from the date of his appointment as an Overseer and not when he was promoted to the rank of BR-II because of the merger of the said post, as a result of the recommendations made by the Sixth Pay Commission is totally misconceived and untenable.

7. There is a considerable merit in the submission of the counsel appearing for the respondents that the post of JE (Civil) was not even in existence on the date when the petitioner was appointed to the post of Overseer and also the fact that three hierarchical grades were existing as on 1.4.1986 i.e. Superintendent BR-I at the top; Superintendent BR-II in the middle and Overseer as the bottom and if the prayer of the petitioner is allowed then he would supersede all his seniors with retrospective effect despite the fact that being an Overseer he was in the last tier of the hierarchy. The said merger, which came into effect on the recommendation made by the Sixth Pay Commission cannot be construed in a manner to disturb the seniority of Overseers as it existed on the date of their appointment. There is no merit in the present petition and the same is hereby dismissed.

8. We also do not find any merit in the submission of the learned counsel for the petitioner that a direction be given to the respondents to invite objections after publishing a provisional seniority list so as to finalise the Master Seniority List. This process is already over and the petitioner has not cited any rule or office order or Government order which mandates the following of such a procedure of inviting objections for finalising the seniority list after the merger of the said grades of Overseer and BR-II.

9. In view of the aforesaid observations, and finding no merit in the petition filed by the petitioner the same is hereby dismissed.

KAILASH GAMBHIR, J NAJMI WAZIRI, J SEPTEMBER 02, 2014 pkb