Rajwant Sandhu, Member (A).
1. This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
'8(a) To issue promotion orders of applicant Nos. 1 to 3, whose promotion orders were withheld due to pendency of OA No.1195/CH/2011 since that OA has been decided on 15.11.2012 and the seniority of the applicants has not got changed.
(b) To issue promotion orders to applicants Nos.1 to 3 with effect from the dates of becoming available of posts against which their promotion has been made in the DPC held with all consequential benefits of pay fixation, arrears of pay and interest @ 18% p.a. till payment and to hold DPC for the year 2012 and grant regular promotion to other applicants as Assistant Nursing Superintendents with effect from becoming available of vacant posts with all consequential benefits of pay fixation, arrears of pay and interest etc.'
2. It is stated in the OA that the applicants who belong to Scheduled Caste category are working as Sisters Grade-I in PGIMER, Chandigarh. The PGIMER had conducted a DPC for promotion of Sister Grade-I to the post of Assistant Nursing Superintendents on 24.1.2010. As per RTI information received from CPIO, PGIMER, Chandigarh on 4.1.2013, it has been revealed that out of total 8 posts of Assistant Nursing Superintendent, 3 belonging to SC category (Annexure A-1), promotion orders of 3 SC category Sisters Grade-I were kept pending due to seniority dispute pending before this Tribunal in O.A. No.1195/CH/2011. The PGIMER had issued various office orders dated 3.1.2012, 30.3.2012 and 23.12.2012 (Annexure A-2 to A-4 respectively), whereby in all 2, 1 and 16 i.e. total 19 Sisters Grade-I were given promotion as Assistant Nursing Superintendent, since this Tribunal in MA No.1106, 1107 and 1162/2011 in O.A. No.1195/CH/2011 had permitted such promotion orders being issued for the reason that dispute involved in the OA did not in any manner affect their promotions. All these persons were considered and granted posting orders on their names being cleared in the DPC by the PGIMER because their seniority was not under dispute in the cases pending adjudication before the C.A.T. Chandigarh Bench.
3. It is further stated that vide judgment dated 15.11.2012, this Tribunal finally decided the OA No.1195/CH/2011 and the decision thereof had also been implemented by the PGIMER by passing office order dated 14.12.2012 issued through endorsement No. EV(9)PGI/12/F dated 20.12.2012 as per which the seniority status of none of the private respondents/sisters Grade-I belonging to SC category has been affected (Annexure A-5). The PGIMER had fixed the seniority of the Nursing staff in context to OA No.711/CH/2012-Rano Chaudhary & Ors., OA No.689/CH/2012-Gagan Bala Sharma & Ors., OA No.679/CH/2012 Vinod Jolly & Ors., OA No.691/CH/2012 Vinod Sethi & Ors., OA No.710/CH/2012 Shobha Mohini Bhandari & Ors., OA No.783/CH/2012 Indra Rani & Ors., OA No.690/CH/2012-Rashpal Kaur & Ors., OA No.621/CH/2012-Dhanwant Kaur & Ors. which majority of the OAs were decided by this Tribunal through a common judgment rendered in OA No.1195/CH/2011 ‘Kamlesh Florence & Ors. Vs. UOI & Ors.’ in which all the applicants were mentioned at Sr. No.5 to 28. Since the seniority position of the applicants had not changed, therefore, the respondents were bound to issue promotion orders of the applicants 1 to 3, whose promotion orders were withheld due to pendency of this OA before this Tribunal. When despite decision of the aforesaid OA by this Tribunal and despite issuance of office order dated 20.1.2012 (Annexure A-5), the respondents failed to issue promotion orders of the applicants No.1 to 3, the applicants got a legal notice of demand issued on 15.1.2013 but the respondents had failed to take any action thereon or to convey any decision (Annexure A-6). There are 82 posts of Assistant Nursing Sisters (ANS). 54 posts are filled and 28 are vacant. 10 ANS had retired vide order No.EV(9)/PGI/10 dated 29.8.2010, 17 ANS retired vide order No.EV(9)PGI/11/Retire-file dated 15.7.2011 and 16 ANS retired vide order No. EV(9)PGI/12/Retire-file dated 23.8.2012 and the applicants from Sr. No.1 to 13 are discharging the duties of ANS. The applicants have been taken out of duties of Sisters Gr.I while discharging duties of ANS. The applicants are incharge of respective units, complete charge of stocks has been entrusted to applicants as such the applicants are entitled for regular promotion as ANS w.e.f. dates of availability of vacant posts and are also entitled for grant of pay of the post of ANS, especially because the respondents have failed to hold DPC in time. Seniority list of the applicants approved by DPGI on 3.6.2011 remained unchanged despite being challenged in this Tribunal in OA No.1195/CH/2011, a copy of which is at Annexure A-7 and copy of RTI reply dated 31.1.2013 is enclosed as Annexure A-8.
4. A short reply has been filed on behalf of PGIMER wherein it has been stated that the present OA is not maintainable. The promotions of the applicants in the present OA were under challenge in OA No.1195/CH/2011. This OA was decided along with a bunch of OAs on 15.11.2012. While allowing all the OAs, the answering respondent was directed to grant the benefit of Catch up Rule to the applicants in these OAs. The applicants in the present OA were private respondents in OA No.1195/CH/2011. There was no clear cut direction to the answering respondent to promote the applicants in OA No.1195/CH/2011. The decision of this Tribunal has been challenged by the answering respondent before the Hon’ble High Court of Punjab and Haryana at Chandigarh in writ petition No.10681 of 2013 titled as Director, PGI, Chandigarh Vs. CAT, Chandigarh and others and the Hon’ble High Court has issued notice regarding stay on 17.5.2013 for 11.09.2013.
5. M.A.No.060/00518/2014 has been filed under Order 1 Rule 10 of the Code of Civil Procedure read with CAT (Procedure) Rules, 1987 for impleading the applicants in the MA as Respondent Nos.2 to 28 in the array of respondents being directly affected by the outcome of the present OA. It has been stated in the MA that OA has been filed by the applicants who belong to Scheduled Caste category praying for direction to respondent No.1 to issue promotion orders of the applicants pursuant to decision of OA No.1195/CH/2011 decided on 15.11.2012 w.e.f. the date of becoming available of the posts against which their promotion has been made in the DPC with all consequential benefits. The present applicants have approached this Court with unclean hands by suppressing material facts intentionally and with a view to mislead this Court had not appended the documents/judgment and order pertaining to OA No.1195/CH/2011 decided on 15.11.2012, which was filed by the non respondents who are praying to be impleaded in the present case. Further the most vital and important fact of challenging the order/judgment dated 15.11.2012 by the present applicants before the Hon’ble Punjab and Haryana High Court by filing CWP No.14450-CAT of 2003 titled Rattan Kaur & Others Vs. Union of India & Others, which is pending adjudication before the Hon’ble High Court has not been stated in the O.A. It has further been stated that relief(s) prayed by the applicants in the present OA are legally misconceived, the O.A. is a complete abuse of process of law and are going to adversely affect the non-respondents who have prayed to be impleaded as respondent No.2 to 28 in the array of respondents being candidates belonging to general category, in whose favour the OA No.1195/CH/2011 has been allowed vide order dated 15.11.2012.
6. The present non-respondents who belong to General Category and have prayed to be impleaded as respondent No.2 to 28 through the present Misc. Application along with few other colleagues filed OA No.1195/CH/2011 before this Court by impleading the applicants in the present OA No.332/CH/2013 as respondent No.5 to 27 praying for the following relief(s):-
'(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iv) Issue directions to the respondents to recast the seniority list of Nursing Sister Grade-I keeping in view the law laid down by the Hon’ble Apex Court in Ajit Singh-II, M. Nagraj and Suraj Bhan Meena cases.'
OA No.1195/CH/2011 was disposed of vide order dated 15.11.2012, by passing a detailed order in which para 24 reads as under:
'24. In the light of foregoing discussion, we would allow all these OAs and direct the Official Respondents to grant the benefit of Catch up Rule to the applicants herein.'
The applicants in the present OA feeling aggrieved, challenged the order dated 15.11.2012 before Hon’ble Punjab and Haryana High Court by filing CWP No.14450/CAT/2013 titled Rattan Kaur & Others Vs. Union of India & Others impleading the present non respondents as respondents No.5 to 38 in CWP No.14450/CAT/2013 in which the present non respondents (respondents No.5 to 38 therein) have since appeared and filed their reply and now this matter is pending adjudication. Since this Court while disposing of OA No.1195/CH/2011 vide order dated 15.11.2012 had directed the official respondent No.1 PGIMER to grant the benefit of Catch up Rule to the applicants therein who belonged to General Category in view of the mandate as propounded by the Hon’ble Supreme Court of India in Constitutional Bench judgment in M. Nagraj’s case, therefore, the seniority list dated 08.8.2011 appended with OA No.1195/CH/2011 became inoperative and defunct as in that seniority list the present applicants belonging to the SC/ST category were shown senior to the General category candidates.
7. When the matter came up for consideration today, learned counsel for the applicants stated the background of the matter as per the OA and pressed that the sealed covers be opened in respect of the applicants and their claim for promotion be considered as per the recommendations of the PDC.
8. Sh. Vikrant Sharma, learned counsel for PGIMER stated that as per short reply filed by him on behalf of the respondent Institute, the present OA was not maintainable as the learned counsel for the applicants was relying on the order passed in OA No.1195/CH/2011 while claiming that seniority of the applicants had remained intact and hence they were entitled to promotion as per the recommendations of the DPC. He stated that the order dated 15.11.2012 in OA No.1195/CH/2011 had been stayed vide order dated 25.11.2013 in CWP No.25628 (O&M) of 2013 and that was also applicable in CWP No.10681 of 2013.
9. Sh. Barjesh Mittal, counsel for the applicants in M.A. No.060/00518/2014 stated that as per the decision in OA No.1195/CH/2011, the applicants in the MA were entitled to the benefit of Catch up Rule and hence seniority list on which the applicants in the present OA are placing reliance was to be recast. With the implementation of the Catch up Rule, the applicants in the MA would become senior to the applicants who belong to SC category and who had been promoted earlier on the basis of reser
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vation. Hence seniority list had to be recast and the claim of the applicants in the OA that their position has not changed and hence they were entitled to promotion on the basis of recommendations of DPC was not maintainable. Learned counsel further stated that the decision in OA No.1195/CH/2011 had been challenged by the PGIMER as well as the applicants in the present OA and since operation of the order in OA No.1195/CH/2011 has been stayed by the Hon’ble High Court, the present O.A. was not maintainable. 10. We have carefully considered the pleadings of the parties and the statements made by the learned counsel. Since it is an undisputed fact that judgment dated 15.11.2012 in OA No.1195/CH/2011 has been impugned by the PGIMER (respondent) as well as the applicants in the present OA, the applicants cannot rely on this judgment to seek their promotion as per the recommendations of the DPC. The recommendations of the DPC were in fact based on the seniority list which has been set aside while deciding OA No.1195/CH/2011. Since all the parties in the matter are already before the Hon’ble High Court through various petitions, M.A. No.060/00518/2014 is allowed and the present OA is held to be non-maintainable and is consequently rejected.