O.A No. 060/00418/2014. Case: Shiva Bhatnagar Vs Post Graduate Institute of Medical Education and Research. Central Administrative Tribunal
| Case Number | O.A No. 060/00418/2014 |
| Counsel | For Appellant: Barjesh Mittal, Advocate and For Respondents: Rajesh Garg, Senior Advocate along with Nimrata Shergill and R.D. Bawa, Advocates |
| Judges | Sanjeev Kaushik, Member (J) and Uday Kumar Varma, Member (A) |
| Issue | Constitution of India - Articles 14, 15, 16, 16(1), 16(1) - (4), 16(4), 16(4- A), 16(4-A), 16(4-B), 16(4A), 16(4B), 16(A-A), 335 |
| Judgement Date | August 20, 2014 |
| Court | Central Administrative Tribunal |
Order:
Sanjeev Kaushik, Member (J), (Chandigarh Bench)
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The moot question that arises in the petition which is to be answered is as to whether the respondents can be allowed to grant seniority to those, who were promoted earlier than their senior general category candidates to next higher grade without firstly following the law lay down in the case of M. Nagaraj & Others vs. Union Of India 2006(8) SCC 212 by undertaking exercise as mandated therein and they have to follow catch up principle as held in case of Suraj Bhan Meena Vs. State of Rajasthan, (2011) 1 SCC 467, till such exercise is carried out.
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The facts which led to filing of the present application are that all the applicants, who belong to general category, entered into the service as Staff Nurse with the respondent- Post Graduate Institute of Medical Education and Research (in short PGIMER) in the year 1978. They were promoted as Sister Grade-I w.e.f. 01.03.1992 on the basis of their seniority in the pay scale of Rs. 1640-2900. The detail of their joining, date of confirmation and date of promotion is given in a tabulated form in paras 4 (IV) & 4 (v) of the O.A. In the hierarchy, the applicants were promoted as Assistant Nursing Superintendent (for short ANS) vide order dated 19.02.2010 in the pay scale of Rs.15600-39100 with Grade pay of Rs. 5400/-. The private respondents no. 3 to 5, belong to reserve category of Scheduled Caste, and are much juniors to the applicants, as they joined the PGIMER as Staff Nurse in the year 1988/1989. Thereafter, they got further promotion as Sister Grade I, in the year 1993, after getting the benefit of reservation in promotion, as Sister Grade-I and they were further promoted as Assistant Nursing Superintendent w.e.f. 30.01.2009, under reservation quota by ignoring the claim of the general category candidates who were senior to them. It is the case of the applicants that as per judicial pronouncement in the case of Indra Sawhney Vs. Union of India & Ors. 1993 (1) SCT 448 reservation would apply only in the matter of initial appointment and there could not any reservation in promotions with consequential seniority. The same view has been followed in the case of Union of India Vs. Virpal Singh Chauhan JT 1995 (7) SC 231 decided on 10.10.1995 wherein validity of Article of 16(4) was considered and it was held that it is for the state to offer reservation for appointments under Article 16(4) only qua the initial appointment and it cannot be extended to the matter of promotion. Based upon the above judgment, the Government of India Department of Personnel & Training (in short DoPT) issued OM No. 20011/96-Estt. (D) dated 30.01.1997 under the heading of Seniority of SC/ST officers promoted earlier vis-`-vis general candidate promoted later. This clarifies that once a reserved category candidate after getting the benefit of accelerated promotion, promoted at earlier point of time than the general category candidate who is senior to the reserved category candidate in feeder cadre, later on gets promoted to higher post to which the SC/ST category candidate has already been promoted, then the department has to prepare a fresh seniority list based upon their seniority in the feeder cadre. In other words, one could get promotion by virtue of reservation but not the seniority. It is the case of the applicants that despite the above OM dated 30.01.1997 where under the respondents were duty bound to recast the seniority under the principle of catch-up rule, they are bent upon to give further promotion to the reserved category candidate without complying the mandate of recasting the seniority, which is illegal.
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Pursuant to notice, the official respondents no. 1 to 2 and private respondents no. 3 to 5 have contested the claim of the applicant by filing separate written statements. In written statement filed by official respondents, they do not dispute the fact that the private respondents have been promoted as Assistant Nursing Superintendent against the reserved category by granting benefit of accelerated promotion. It is also submitted that the matter regarding the catch up rule is under consideration before the jurisdictional Hon'ble High Court as this Court in, another case, has held that there shall be no reservation in promotion in view of the judgment passed in case of M. Nagaraj & Others vs. Union Of India 2006(8) SCC 212, and as such the question of accelerated promotion does not arise. Therefore they proposed deferment of hearing of this matter, whereas, the private respondents opposed the claim of the applicants on the ground that the applicants herein did not posses the requisite experience for promotion to next higher post i.e. Deputy Nursing Superintendent for which they lack experience, therefore, it can not be said that till they acquire the experience to be considered for promotion, the posts will remain vacant and private respondents be not promoted. With regard to factual accuracy of facts as pleaded by the applicant in OA, there is no denial, by the respondents.
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We have heard Sh. Barjesh Mittal, learned counsel for the applicants, Sh. Rajesh Garg, learned Senior Advocate for official respondents and Sh. R. D. Bawa, learned counsel for the private respondents.
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Sh. Barjesh Mittal, Learned counsel for the applicants vehemently argued that action of the respondents in not fixing seniority in terms of OM dated 30.01.1997, and making promotion is illegal, arbitrary and against the mandate of the judgment of the Hon'ble Supreme Court in case of Union of India Vs. Virpal Singh Chauhan JT 1995(7) SC 231 and also against the instructions issued by the Government of India which are applicable to the respondent-PGMIER. To elaborate his argument, he submitted that concededly the applicants are senior to the private respondents as Staff Nurse Assistant Grade I. They were promoted as Assistant Nurse Superintendent in year 2009 after getting the benefit of accelerated promotion which was given without considering their suitability and eligibility by relaxing standards. The applicants who are senior to them were promoted later in the year 2010 as Assistant Nursing Superintendent. Based upon the OM dated 30.01.1997 when the general category candidates were promoted as Assistant Nursing Supreintendent, then Department has to recast their seniority list based upon their initial seniority in feeder cadre, only thereafter, further promotion is to be carried out for the post of Deputy Nursing Superintendent. It is not that the private respondents who were promoted as DNS at earlier point of time under relaxed standards will be given seniority over and above the applicants be promoted to the post of DNS without firstly following catch up rule i.e. without first recasting seniority at the level of DNS from the initial point and there to promote as per seniority, otherwise, it amounts to further reservation in promotion and depriving the right of the general category candidates who are senior.
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He submitted that this issue has already dealt by the Constitutional Bench of Supreme Court in case of Ajit Singh & Ors. Vs. State of Punjab & Others, 1999 (4) RSJ 11. He then submitted that this proposition was again considered in the case of Suraj Bhan Meena & Another Vs. State of Rajasthan & Others 2011(1) SCC 467 which upheld the validity of insertion of Clause 4 (A) to Article 16. The said provision is reproduced as under:-
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
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The aforesaid 85th Constitutional amendment was subject matter in case of M. Nagraj (supra) where it has been held that there will be no reservations in promotion until Government of India carries out certain deliberations. He also submitted that respondents during the pendency of the O.A have conducted the DPC whereby the reserved category candidates, who were promoted earlier than the applicants as ANS, have been promoted to the post of DNS without casting the seniority by giving the benefit of reservation which is contrary to the law settled in case of M. Nagraj (Supra). He then contended that even reservation is to be granted according to the replacement of the vacancy once the reservation is full. He submitted that the promotion in reservation is to be given against the particular point only when that point becomes available. It is not that at each point reserved category candidate is to considered and granted promotion.
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Per contra, Sh. Rajesh Garg, learned Senior Advocate for the official respondents did not dispute the fact that the OM dated 30.01.1997 mandate for recasting of seniority if general category candidate is promoted subsequent to the SC category candidate, and thereafter further promotion is to be made. He also did not dispute this fact that in case of M. Nagraj (supra), the Hon'ble Supreme Court has already held that there shall be no reservation in promotion until they come with data. He however, submitted that respondents are not granting the benefit of reservation to the private respondents as their cases were considered by DPC for further promotion to the post of Deputy Nursing Superintendent as per their merit as ANS. He...
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