At, Central Administrative Tribunal Chandigarh Bench
By, THE HONOURABLE MR. JUSTICE L.N. MITTAL
By, MEMBER (J) & THE HONBLE SMT. RAJWANT SANDHU
By, MEMBER (A)
For the Petitioner: H.S. Saini, Advocate. For the Respondents: R1 & R2, Amjit Jhanji, R3 & R4, G.K.S. Taank, Advocates.
L.N. Mittal, Member(J):
1. Benefit of Catch-up Rule has been claimed by the applicant Prem Chand Guleria alongwith other consequential reliefs in this O.A. filed under Section 19 of the Administrative Tribunals Act, 1985.
2. The applicant is general category employee whereas private respondents nos. 3 & 4 (Bhupinder Singh Hira and Harinder Kaur) are reserved category employees of Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh (respondent no.1). Case of the applicant is that he was appointed as Junior Scale Stenographer on 17.7.1980 and promoted as Senior Scale Stenographer on 25.5.1984. Respondent no. 3 joined as Junior Scale Stenographer on 17.5.1989 and promoted as Senior Scale Stenographer on 25.9.1990. Respondent no. 4 was directly recruited as Senior Scale Stenographer on 13.10.1990, allegedly in illegal and arbitrary manner. The applicant is thus senior to private respondents nos. 3 & 4. Next channel of promotion was to the post of Personal Assistant (PA) which on restructuring and cadre review has been designated as Private Secretary (PS). Accordingly the applicant who had been promoted as PA w.e.f. 9.8.1997, before cadre review was ordered w.e.f. 1.3.1992, was redesignated as PS w.e.f. 9.8.1997 whereas private respondents nos. 3 & 4 were redesignated as PS w.e.f.. 25.9.1998 and 13.10.1998 on fulfillment of condition of eligibility for the said post i.e. on completion of 8 years service as Senior Scale Stenographer. The applicant thus remained senior to private respondents even as PS. However, in provisional seniority list circulated on 28.5.2012 for the first time, the applicant was shown at serial no. 5 and respondents nos. 3 & 4 at serial no. 1 & 2 i.e. senior to the applicant. The applicant preferred representations/objections against the said provisional seniority list. However, without deciding the same, respondent no. 1 vide order dated 2.9.2013 (Annexure A-5) finalized the seniority list of PSs thereby depicting the applicant as junior to private respondents nos. 3 & 4. On the basis thereof, private respondents nos. 3 & 4 were promoted as Principal Private Secretary (PPS) in illegal and arbitrary manner vide order dated 21.12.2013 (Annexure A-4) on the basis of DPC proceedings dated 27.11.2013 (Annexure A-3). Hence the instant O.A. challenging the seniority list (Annexure A-5), DPC proceedings (Annexure A-3) and promotion order (Annexure A-4) of private respondents nos. 3 &4 and claiming seniority over and above respondents nos. 3 & 4 and consequential promotion etc.
3. The official respondents 1 & 2 in their reply raised the objection of bar of limitation. It was also pleaded that the applicant was also considered in DPC proceedings (Annexure A-3), but private respondents nos. 3 & 4 and two PSs of general category were found fit and promoted accordingly and thus the applicant was also considered for promotion to the post of PPS. It was also pleaded that the applicant is junior to private respondents nos. 3 & 4.
4. The private respondents nos. 3 & 4 in their written statement also took similar stand as that of respondents 1 & 2.
5. The applicant filed rejoinders wherein he controverted the stand of the respondents and reiterated his own version.
6. We have heard the counsel for the parties and perused the case file.
7. Counsel for the applicant contended that in view of undisputed factual position, the applicant is senior to respondents 3 & 4 at every stage. He was promoted as Senior Scale Stenographer on 25.5.1984 whereas respondents 3 was promoted as such on 25.9.1990 and respondent no. 4 joined as such on 13.10.1990 i.e. more than 6 years after the applicant. It was also submitted that the applicant was designated as PS w.e.f. 9.8.1997 and respondents no. 3 & 4 on 25.9.1998 and 13.10.1998 i.e. after the applicant. It was also submitted that earlier promotion of the private respondents as PAs on 8.12.1993 and 9.12.1993 in reserved category was illegal as they were not even eligible for the said promotion having not put in 5 years service as Senior Scale Stenographer. It was contended that even otherwise, on promotion of the applicant as PA w.e.f. 9.8.1997, he became senior to private respondents in the post of P.A. on account of Catch-up rule. Reliance has been placed on judgment of this Tribunal in O.A. No. 060/00759/2014- titled Agnes A. Nath & Another Vs. PGIMER, Chandigarh & Ors.decided on 22.01.2016.
8. There is considerable force in the aforesaid contention of counsel for the applicants. Catch-up Rule was postulated by the Honble Supreme Court in the case of Ajit Singh Janjua-II which has been reiterated and reaffirmed by this Tribunal as well as by the jurisdictional High Court and Honble Supreme Court in various judgments. In the case of Agnes A. Nath (supra), various judgments have been relied on . Said judgment is fully applicable to the instant case.
9. Counsel for the private respondents 3 & 4 contended that Ajit Singh Janjua-II case stipulated that cases prior to 1995 be not reopened. The contention is untenable as no such stipulation of law was laid down in the said case. Moreover, in the instant case, the applicant was promoted as PA on 9.8.1997 and was designated as PS w.e.f. the said date whereas private respondents no. 3 & 4 were designated as PSs w.e.f. 25.9.1998 and 13.10.1998. Consequently the aforesaid contention does not help the private respondents in any manner.
10. Counsel for the respondents contended that merit-cum-seniority is basis for promotion to the post of PPS and the applicant was also within the zone of consideration, but 4 persons above him were promoted as PPS and, therefore, the applicant also having been considered for promotion, could have no grievance because the promotion is based on merit-cum-seniority. The contention is completely misconceived, distorted and devoid of substance. The applicant was considered at serial no. 5 below private respondents and 2 general category candidates and thus he was not considered on the basis of his correct seniority. If on account of Catch-up Rule, he had been shown as senior to private respondents nos. 3 & 4, then the result of consideration for promotion to post of PPS would have been different. In this context, DPC proceedings (Annexure A-3) reveal that the applicant had all the ACRs under consideration as excellent whereas respondent no. 3 had four very good, one average and one Good ACR and respondent no. 4 had four Good and one above averageACRs and one ACR was not available. Thus consideration of the applicant in the DPC proceedings (Annexure A-3) was not correct as it was not according to correct seniority list which should be drawn by applying Catch-up Rule.
11. It is also worth mentioning that private respondent no.3 was also party to O.A. No. 944/CH/2012- Ravinder Sharma & Ors. Vs. UOI & Ors.decided vide order dated 2.1.2013 (Annexure A-1). In that case also, denial of Catch-up Rule to general category candidates was held to be invalid. The plea of limitation was also repelled in that case. Review Application against said order was dismissed vide order dated 18.02.2013 (Annexure A-2). Writ Petition preferred by the official respondents against the said orders stands dismissed by Honble High Court vide judgment dated 13.1.2016 along with bunch of Writ Petitions. Counsel for the private respondents contended that private respondent no.3 was proforma respondent in the Writ Petition preferred by official respondents against orders (Annexures A-1 & A-2), but was not issued any notice by the Honble High Court and, therefore, order of Honble High Court is not binding on him and he has moved application in the High Court for setting aside the same and the said application is still pending. The contention has no bearing in the instant case because respondent no. 3 himself did not challenge orders (Annexures A-1 & A-2) passed against him by the Tribunal. Consequently the said orders attained finality qua him. Challenge to the said orders by the official respondents has also failed.
12. Irrespective of orders (Annexure A-1 & A-2), even on principle and merit, the applicant is entitled to succeed.
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e question of limitation also does not come into picture because correct seniority list was not prepared by the respondents in spite of representations preferred by the applicant, and promotion of private respondents has been ordered without preparing correct seniority list by applying principle of Catch-up Rule. 14. Resultantly, the instant O.A. is allowed. Impugned seniority list (Annexure A-5), DPC proceedings (Annexure A-3) and promotion order (Annexure A-4) qua private respondents 3 & 4 are quashed. Official respondents are directed to re-draw the seniority list of PSs by applying Catch-up rule and to hold review DPC thereafter for promotion to the post of PPS and to grant promotion accordingly from due dates with all consequential benefits. The applicant may also be considered accordingly for promotion and be granted promotion, if found fit for the same. There shall be no order as to costs.