Central Administrative Tribunal - Delhi
Dr. (Miss) Madhu Jain D/O J. P. Jain vs Municipal Corporation Of Delhi on 13 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Transferred Application No.1207/2009 This the 13th day of May, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Dr. (Miss) Madhu Jain d/o J. P. Jain, R/O 153, Vivekanand Puri, Sarai Rohilla, Delhi-110007. Applicant ( By Ms. Jyoti Singh, Advocate ) Versus 1. Municipal Corporation of Delhi through Commissioner, Town Hall, Chandni Chowk, Delhi-110006. 2. Director (Personnel), Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi-110006. 3. Dr. Madhur Kudesia, Medical Superintendent, Hindu Rao Hospital, Delhi. 4. Union Public Service Commission through its Chairman, Dholpur House, Shahjahan Road, New Delhi. Respondents ( By Ms. Amita Gupta for MCD, and Shri Mayank Garg for Respondent No.3, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Dr. Madhu Jain, presently holding the post of Director Hospital Administration, the applicant herein, is aggrieved of the order dated 14.9.2005 promoting Dr. Madhur Kudesia, the 3rd respondent herein, on the post of Specialist Grade-I (Pathology) with effect from 10.8.1987, thus in the manner disturbing the inter se seniority between the applicant and the 3rd respondent after more than a decade. The applicant through Writ Petition (Civil) No.19776/2005 under Article 226 of the Constitution of India before the Honble High Court of Delhi, sought a writ in the nature of certiorari so as to quash order dated 14.9.2005 promoting the 3rd respondent on the post as mentioned above w.e.f. 10.8.1987. Vide detailed and speaking order dated 5.10.2005, the Honble single Judge before whom the matter came up for hearing, in presence of the counsel representing the respondents, gave interim protection to the applicant by directing the respondents to maintain status quo regarding her post, who had since been promoted/appointed to the post of Director Hospital Administration. The stay is continuing till date. This matter came to be transferred to this Tribunal vide order dated 2.4.2009 passed by the High Court, primary jurisdiction over the matter having been vested with this Tribunal vide notification dated 1.12.2008, and has thus been numbered as Transferred Application No.1207/2009. After completion of records, the matter came up for hearing before the Bench on 16.4.2010, when it was adjourned to 10.5.2010, on which date, after hearing the arguments, judgment was reserved.
2. The facts as set out in the Application on which the relief as mentioned above is sought to rest, reveal that the applicant joined service of the 1st respondent Corporation as Specialist (Doctor) Grade-II through UPSC in the pay scale of Rs.1100-1800 w.e.f. 7.9.1979, and was thereafter promoted to the post of Specialist (Doctor) Grade-I w.e.f. 18.8.1987. Insofar as, the 3rd respondent is concerned, it is the case of the applicant that she was promoted to the post of Specialist Grade-I w.e.f. 23.3.1990. The respondent Corporation circulated a provisional seniority list of Specialist Grade-I working on regular basis vide circular dated 20.12.1990 inviting objections within 15 days from the date of issue of the circular. Thereafter, vide circular dated 27.12.1991 the respondent circulated final seniority list of Specialist Grade-I in pay scale of Rs.4500-5700, copy whereof has been placed on records as Annexure P-2. Name of the applicant appeared at serial no.6, whereas the name of the 3rd respondent appeared at serial no.10 in the said final seniority list. In column 7 of the list, reference is to the recommendation/approval of UPSC with regard to the seniority. This position, it is the case of the applicant, was neither objected to by the 3rd respondent by filing objections to the provisional seniority list, nor by challenging the final seniority list. The applicant was further promoted to the post of Supertime Grade-I (Clinical) in pay scale of Rs.5900-6700 on ad hoc basis w.e.f. 6.3.1991 and thereafter regularized through UPSC w.e.f. 6.7.1993 along with five other doctors. Insofar as, the 3rd respondent is concerned, she was promoted to the post of Supertime Grade-I (Clinical) w.e.f. 5.1.1997, and placed at serial number 9 in the seniority list, whereas the name of the applicant was already there at serial number 5. The applicant was then posted as Medical Superintendent, Kasturba Hospital in the Senior Administrative Grade of Rs.18400-2400 on 18.1.2003, and consequent upon retirement of Dr. S. Patnaik at serial number 4 in the list of Supertime Grade-I (Clinical) on 31.10.2004 as Director Hospital Administration, the applicant became the seniormost in the said list of Supertime Grade-I, and, therefore, was entitled to be appointed as Director Hospital Administration. It is the case of the applicant that the Corporation due to its prejudices and mala fide intentions, assigned the charge of the post of Director Hospital Administration to her junior, i.e., Dr. Banvalikar, who was at serial number 7 in the seniority list of Supertime Grade-I. Aggrieved thus, the applicant filed a writ petition being WP(C) No.17982/2004 before the High Court seeking a writ in the nature of certiorari so as to quash order dated 9.11.2004 assigning the charge of the post of Director Hospital Administration to Dr. Banvalikar, being illegal, arbitrary, unjust and discriminatory. The writ was allowed by a Single Bench of the High Court vide order dated 31.5.2005, holding the action of the respondent Corporation to be arbitrary. In the order aforesaid, it was also mentioned that the applicant was the seniormost in the department, senior to both Dr. Madhur Kudesia (3rd respondent) as well as Dr. J. N. Banvalikar. LPA filed against the order of the Single Bench was dismissed by the Division Bench vide order dated 20.6.2005. Consequently, the respondent Corporation posted the applicant as Director Hospital Administration vide office order dated 21.6.2005, as she was the seniormost officer in the seniority list of Supertime Grade-I (Clinical). While the things stood so, all of a sudden, the Corporation issued office order dated 14.9.2005 promoting the 3rd respondent to the post of Specialist Grade-I (Pathology) w.e.f. 10.8.1987 on the recommendation of review DPC held by UPSC, the 4th respondent, on 1.8.2005. As a result of the order aforesaid, the applicant has been shown at serial number 7, whereas the 3rd respondent has been shown at serial number 6 in the seniority list. The implication of the order, as per the case set up by the applicant, is that the applicant has become junior to the said respondent after 14 years, and an issue which stood settled way back in 1991 has been unsettled. Constrained, the applicant submitted her objections to the revision of seniority list after 14 years, vide representation dated 26.9.2005. The said representation, it appears, was pending when the writ petition was filed, but during the pendency of the writ, the same has been rejected, as would be made out from an additional affidavit filed by the applicant before the High Court.
3. Before we may proceed to take into consideration the replies filed by the respondents, we may make a mention of the order dated 5.10.2005 passed by the Single Judge of the High Court of Delhi, wherein the facts of the case and the points raised by the applicant have been mentioned. The same, insofar as it is relevant, reads as follows:
1. The petitioner was promoted to the grade of Specialist-I in the year 1987 pursuant to an office order dated 04.12.1987. The third respondent was promoted to that grade, after a DPC cleared her name in that regard subsequently on 23.03.1990. The petitioner was promoted to the further grade of Supertime Grade of Clinical on 10.09.1993; the third respondent was given that grade on 05.01.1997.
2. The petitioner had occasion to approach this Court sometime ago by filing WP(C) 17982/04, questioning the decision to give the post of Director to Dr. J. N. Banvalikar. The Court had quashed the decision and noticed that the petitioner was senior most, senior to both the third respondent and Dr. Banvalikar. The relevant part of the order reads as follows:-
So far as the records of the MCD are concerned the petitioner presently is the senior most in the Department, senior to both Dr. Madhur Kudesia as well as Dr. J.N. Banvalikar. The petitioner has already officiated in the post of Director, Hospital Administration without any blemish. The quarrel pertaining to seniority is not between the petitioner and Dr. J.N. Banvalikar who is even junior to Dr. Madhur Kudesia. There is no order in existence in respect of the service controversy between the petitioner and Dr. Madhur Kudesia. In any event it is not Dr. Madhur Kudesia who has been assigned the charge of Director, Hospital Administration but a person junior to both of them. Although the failure to specifically mention the reasons for the appointment of Dr. J.N. Banvalikar in the impugned order itself is sufficient to reject the grounds urged by respondent no.3, these questions would properly arise if a regular appointment or promotion was being made for the post of Director, Hospital Administration. Where only an officiation or ad hoc appointment is in question there is no justification to bye-pass the senior most person especially where she has already served in that post without complaint or blemish. Arbitrary actions of this nature lead not only to heartburning within the administration, but also directly breeds nepotism.
3. The matter was carried in appeal by the respondents and the Division Bench rejected the appeal of Dr. Banvalikar. Consequently, an order was issued on 21st June 2005 posting the petitioner as Director, Hospital Administration.
4. By virtue of the impugned office order dated 14.09.2005, (as corrected by a corrigendum subsequently) the MCD, on the recommendation of a Review DPC held at the UPSC on 01.08.2005, promoted the third respondent to the post of Specialist Grade-I, Pathology in the MCD w.e.f. 10.08.1987.
5. Learned counsel for the petitioner contends that the impugned order is ex-facie arbitrary since it is unsupported by any rule or provision which authorizes the corporation to issue such a retrospective order, particularly, affecting the settled rights to seniority of the petitioner which had been noticed and given effect to in the intervening period. He also contends that in the absence of any direction to hold a review DPC, its very constitution was illegal; in any event, settled seniority rights which had existed for more than a decade cannot be unsettled, not in the least without granting any hearing or opportunity to the parties likely to be affected, such as the petitioner.
6. Having regard to these contentions and after considering the material on record, the respondents are directed to maintain status quo regarding the petitioners post till the next date of hearing.
4. Pursuant to notice issued by the High Court, the respondents have entered appearance and filed their respective counter replies. Separate replies have been filed on behalf of respondent MCD, UPSC and the third respondent. We may, however, advert to the contents of replies filed by MCD as also UPSC, insofar as the same may be relevant for adjudication of the controversy involved in the present case. The replies, we may mention, filed by all the respondents are on similar lines. The respondent Corporation pleads that vide order dated 14.9.2005, the 3rd respondent has been promoted on the post of Specialist Grade-I w.e.f. 10.8.1987. We may mention at this stage that even though, in the impugned order it has been mentioned that the 3rd respondent was promoted as Specialist Grade-II (Pathology), but it is admitted at all ends that in fact the respondent was promoted as Specialist Grade-I vide the impugned order. The said order, it is stated, had been passed by the Corporation on the basis of recommendations of review DPC conducted by UPSC, the 4th respondent. The review of the DPC held on 10.8.1987 was done by the 4th respondent on 1.8.2005, at the request letter dated 23.11.2004 of the respondent MCD. The said request came to be made as during the year 1987 the Corporation had inadvertently forwarded the information for regularization of the Specialist Grade-I Doctors on the basis of an incorrect vacancy position, wherein it had been mentioned that only one post was available for regularization, whereas actually two posts were available. The anomaly was detected by the Corporation only after examination of representations as received from the 3rd respondent. The DPC as held by the UPSC in 1987 had considered only Dr. Sudhakar Patnaik from the list of three probables which had been forwarded by the respondent Corporation for regularization. The three probables included the names of the 3rd respondent and Dr. Charanjit Kaur. Dr. Patnaik and the 3rd respondent were working on ad hoc basis as Specialist Grade-I Doctors since 22.7.1985 and 9.4.1987 respectively. Grading of both as had been awarded by DPC was very good. In the circumstances, since there was only one post forwarded by the Corporation to UPSC for regularization, therefore, only the name of Dr. Patnaik was considered for being regularized in the category of Specialist Grade-I. Dr. Patnaik was considered for being regularized against the one post as he was senior to the 3rd respondent. The review of the DPC held on 10.8.1987 was done by the 4th respondent on 1.8.2005 and intimation regarding the same was sent to the Corporation on 4.8.2005. Accordingly, the 3rd respondent stood regularized w.e.f. 10.8.1987 in the category of specialist Grade-I, and as direct consequence of the said retrospective regularization, the seniority list of Specialist Grade-I category was amended in terms of the order dated 14.9.2005. It is also the case of the respondent Corporation and other respondents as well, that the 3rd respondent was appointed as Specialist Grade-II vide letter dated 4.8.1977. Insofar as, the applicant is concerned, she was appointed as Specialist Grade-II vide letter dated 7.9.1979. The 3rd respondent was thus senior to the applicant in the Grade-II level. The respondent Corporation has then referred to rule 18.1 of Central Civil Services Rules dealing with seniority and promotion, wherein mention is made of the circumstances under which review DPC may be held. One circumstance where review DPC can be held is where the DPC has not taken all material facts into consideration. It is significant to mention here that in the reply filed by the respondent Corporation there is no mention based upon any factual background, as to how only one vacancy was reported to UPSC in 1987, and that in fact there were two vacancies available. How the two vacancies were created or became available, there is no material placed on records whatsoever.
5. In the reply filed on behalf of the 4th respondent, UPSC, it has been mentioned that in July 1987, the respondent Corporation had sent two proposals for convening meetings of DPC for promotion to the grade of Specialist Grade-I one each in the discipline of Pathology and Anaesthesia. Both the DPCs were held on 6.8.1987, where Dr. Sudhakar Patnaik (serial no.1 of the common seniority list) was recommended in Pathology discipline and the applicant (serial no.18) and Dr. F. S. Mirza (serial no.20) were recommended in Anaesthesiology discipline. The 3rd respondent at serial no.9 of the common seniority list and Dr. Charanjit Kaur (serial no.17), both of Pathology discipline, could not be recommended in absence of any other vacancy then intimated to UPSC by the respondent Corporation. In November, 2004, the Corporation sent a proposal requesting for reviewing the proceedings of the DPC meeting held on 6.8.1987, which considered three officers in the feeder grade (Specialist Grade-II) against one vacancy of 1987 for promotion to the grade of Specialist Grade-I (Pathology). The respondent Corporation informed that while sending the original proposal to UPSC in July, 1987, it failed to carry out the exercise of shifting the doctors against their respective disciplines occupying unspecified posts, which resulted in furnishing to UPSC incorrect vacancy position of one vacancy, when there existed two clear vacancies in the Pathology discipline. Therefore, the Corporation stated that the said proposal, furnished in July 1987, for DPC for Pathology discipline might be treated as modified to the extent of number of vacancies, and that the proposal furnished by it in July 1987 for convening DPC for promotion to Specialist Grade-I (Pathology) may be modified to the extent of the number of vacancies as two, instead of one intimated then. The proceedings of the DPC meeting were required to be reviewed by constituting a review DPC. It is stated that there is no specified time limit by which the review DPC is required to be convened, in order to rectify a factual error placed before the original/regular DPC. Reply filed by the 3rd respondent is no different.
6. From the narration of facts as given above, what clearly transpires is that whereas, the applicant was appointed as Specialist Grade-II on 7.9.1979, the 3rd respondent came to be so appointed on 4.8.1977. On the post of Specialist Grade-II, the 3rd respondent, it appears, was senior. However, it is admitted position that whereas the applicant came to be promoted as Specialist Grade-I on 18.8.1987, the 3rd respondent was promoted to the said grade on 23.3.1990. Further, whereas the applicant was promoted further to Supertime Grade on 10.9.1993, the 3rd respondent was promoted as such on 5.1.1997. The writ filed by the applicant when Dr. J. N. Banvalikar was asked to look after the post of Director, Hospital Administration, and the result thereof, is also admitted position. The applicant, however, may not be able to seek seniority over the 3rd respondent only on the basis of some observations made in the order passed by the learned single Judge, as surely, the 3rd respondent was not party to the said litigation, and any observations made therein with regard to inter se seniority between the applicant and the said respondent, may not be binding upon the respondent. The fact, however, remains that not only on the post of Specialist Grade-I, but also in the Supertime Grade, the applicant came to be appointed or promoted, as the case may be, far before the 3rd respondent. Even though, it is the case of the applicant that the 3rd respondent would not object to provisional or the final seniority list of Specialist Grade-I, the respondent pleads that such representation was made on 26.12.1990, copy whereof is also available on the records as Annexure R-1 to the counter reply filed on behalf of the respondent Corporation. The facts further reveal that the 3rd respondent revived her prayer for inter se seniority thereafter only in 2001. The representations made by her have been placed on records by the corporation with its counter reply. The same are dated 3.4.2001, 3.9.2001, 27.9.2001, 13.9.2002, 17.10.2002, 14.1.2003, 12.6.2003 and 5.10.2004. It is the last representation, which, it appears, attracted the respondent Corporation resulting into seeking review DPC from UPSC. From 1990 up to 2001, for a period of more than a decade, the 3rd respondent did not agitate the matter at any stage, and meanwhile, as mentioned above, the applicant and the respondent both were promoted to Supertime Grade, the applicant far earlier in point of time than the respondent.
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. From the pleadings as made by the parties, what clearly emerges is that promotion or appointment, as the case may be, to Specialist Grade-I, would, of course, go by common seniority of Grade-II, but at the same time, as per vacancies available in a particular discipline/specialty. Insofar as, the vacancy in the specialty of Anaesthesiology in which specialty the applicant was working, is concerned, there is no dispute that there was one vacancy available for promotion/appointment in Grade-I in 1987. Insofar as, the availability of vacancies in Pathology, the specialty where the 3rd respondent was working, is concerned, there is a dispute with regard to vacancies that were available in 1987. It may be recalled that the respondent Corporation forwarded the case of the 3rd respondent for review DPC w.e.f. 1987 on the ground that by inadvertent mistake, only one vacancy was reported for Pathology, whereas there were two in existence, and further that Dr. Sudhakar Patnaik being the senior most came to be appointed. If two vacancies in Pathology might have been reported, the 3rd respondent could too have been promoted in 1987. The reply filed by both UPSC and MCD would make it abundantly clear that promotion or appointment on the post of Specialist Grade-I may be from common seniority list of Specialist Grade-II, but the same is subject to vacancies in a particular specialty. The 3rd respondent, we may mention, had a different ground to plead for her earlier appointment/promotion to Grade-I. We may, at this stage, refer to the representation made by the 3rd respondent in 1990, wherein she had stated that her promotion to the post of Grade-I was delayed not due to her being unfit for the said post, but due to the fact that posts in the said grade required different qualification, and that there was no such post in Pathology at that time. She pleaded in the representation that inter se order of seniority should govern promotion to Grade-I. She specifically stated that inter se seniority should be indicated by a consolidated order drawn up by the selecting body, and that the relative seniority should be determined by length of service in the next lower grade, and further that promotions to the next grade would not require subject-wise qualifications but were to be granted on selection according to inter se seniority of Specialists. In the first representation made by the 3rd respondent way back in December, 1990, she clearly and specifically mentioned that promotions were made to Specialist Grade-I based upon vacancies available in a particular specialty, and further that insofar as the 3rd respondent is concerned, it was her case that no vacancy in Pathology was available at that time. The next representation made by the 3rd respondent after almost eleven years on 3.4.2001 mentions that while she continued to work as Specialist Grade-I on ad hoc basis, cases of several other Specialists who were lower in seniority at the time of initial appointment and confirmation, were sent to UPSC for promotion on regular basis. She further stated that the cases were sent to UPSC subject-wise and on random basis, cases of some subjects (Specialists) being processed earlier than others without any valid reason. It is for this reason, she stated, that she was superseded by five Specialists and that gross injustice was done to her. She referred to guidelines of Government of India, according to which, inter se seniority was required to be determined on the basis of initial seniority and confirmation. She also stated that in the present case subject-wise division was done at the Specialist Grade-II stage and then the cadre was again unified and subsequent promotions were made on the basis of common seniority list. In the representation aforesaid, the 3rd respondent did not raise the issue with regard to availability of a second vacancy being available in Grade-I in her discipline/specialty. She rather pleaded to be promoted to Grade-I earlier in point of time on the basis of her seniority, which was common to all others in their respective specialties in Grade-II. In her next representation dated 3.9.2001, the third respondent while making a reference to rule 4(8) para (b) of MCD Health Services Rules, stated that seniority should be determined on the basis of seniority in feeder cadre. She also complained of delay in regularizing her ad hoc appointment in Grade-I. In the next representation made by her on 27.9.2001, she stated that only one post was sent to UPSC for regularization, though both she and Dr. Patnaik continued to work in Pathology as Specialist Grade-I, and that she was finally regularized in Grade-I in 1990 against an unspecified post in Grade-I, and further that she could have been regularized with Dr. Patnaik in 1988. She also stated that Dr. Patnaik was promoted against unspecified post in 1985 when there was no post in Pathology. She also stated that her service as Specialist Grade-I should have been considered for next promotion (SAG) according to her inter se seniority in the Specialist cadre, which had been concurred by UPSC at the time of confirmation of service in the cadre, and not on the basis of new seniority list made after subject-wise promotions. In the representation made by the respondent on 13.9.2002, she made a mention of her earlier appointment in Grade-II, and of her being senior in the seniority list of Grade-II. She also made a mention of her ad hoc promotion on the post of Specialist Grade-I against a vacant post w.e.f. 9.4.1987, and approval thereof by the Corporation up to 31.3.1990. She also stated that during that period, while she continued to work as Specialist Grade-I on ad hoc basis, several other Specialists who were much lower to her in seniority were appointed to the said grade on regular basis on vacant posts or new posts that were created for them, and that this was done by sending separate seniority lists (subject-wise) to UPSC on random basis, cases of some Specialists being processed earlier than others without having regard for inter se seniority. She then made mention of a judgment of the High Court of Delhi holding that initial appointment, if is as per rules, the service rendered on ad hoc basis has necessarily to be counted. In the representation aforesaid, primarily request of the respondent was to give her promotion in Grade-I from the date she was appointed on the said grade on ad hoc basis. Representations dated 17.10.2002 and 14.1.2003 would need no elaborate mention as in the said representations, the respondent has made a mention of her earlier representations and made demand for justice. In the representation made by the respondent on 12.6.2003, while again making reference of the orders passed by the High Court in CWP No.4071 of 1994, she claimed the benefit of ad hoc service followed by confirmation. There would be no need to deal with the representations made by her dated 5.10.2004 and 9.8.2005, as the prayer made therein was to redress her grievance expeditiously. In the counter reply filed on behalf of the 3rd respondent, however, the defence projected by her is almost on the lines as reflected in the counter replies filed on behalf of the respondent Corporation and UPSC. She also pleads that promotion to Grade-I came in her way much prior to the date on which the applicant was promoted, though on ad hoc basis, but seniority has been claimed by her over and above the applicant on the same lines, i.e., reporting one only one vacancy in her discipline/specialty, whereas there were two available.
8. From the tone and tenor of the representations made by the 3rd respondent, it would appear that she was seeking appointment/promotion in Grade-I earlier in point of time, primarily on the ground that in the feeder cadre, i.e., Specialist Grade-II, she was senior, and it is that seniority which should be carried for further promotion to Grade-I. It is only in the representation dated 27.9.2001 that she made some averments, which cannot be said to be adequate, with regard to only one post being sent to UPSC for regularization, but in this representation also she has not clarified as to how two posts of her discipline/ specialty were available. Insofar as the earlier representations are concerned, it is a case of candid admission made by the respondent that she could not be promoted along with Dr. Patnaik as no vacancy was in existence in the discipline/specialty of Pathology. Insofar as her plea raised in the representations with regard to counting of ad hoc service in Grade-I and giving her seniority from the date she assumed duties of Grade-I on ad hoc basis is concerned, no arguments have been raised during the course of arguments. That is not even the reason given by the official respondents in opposing the cause of the applicant, and we may mention that there is a complete shift of stand by the 3rd respondent, who defends the impugned order almost exclusively on the same ground as has been taken by the official respondents.
9. The respondent Corporation and UPSC, as mentioned above, would contest the cause of the applicant only on the ground that although two vacancies were available in Pathology at the relevant time, but due to inadvertent mistake made by the Corporation only one was notified. In the context of the pleadings, facts and circumstances of the case, this plea appears to be totally hollow and devoid of merit. Even though, clear pleadings that there were two vacancies in the specialty of Pathology, and only one was inadvertently reported have been made, but for the same, no material has been placed on records, nor even anything has been urged on that behalf during the course of arguments. No factual background has at all been mentioned from where it could be made out that two vacancies in Pathology were available. To fortify the pleadings made in the counter reply that two vacancies were available and inadvertently only one was notified to UPSC, it ought to have been mentioned as to what was the cadre strength or sanctioned posts in the discipline/specialty of Pathology in Grade-I. It was further to be mentioned that out of the sanctioned strength of Specialists Grade-I in Pathology, how many were in position when the Corporation notified vacancies to UPSC. How the two vacancies became available, if may not have been reported to UPSC, but ought to have been mentioned while opposing the cause of the applicant. Vacancies could arise either by death, retirement voluntary or otherwise, or the incumbents holding the posts in Grade-I in the concerned discipline/specialty being promoted to next higher rank. If indeed there were two vacancies available in the discipline of Pathology, it could have very easily been shown by making relevant pleadings on that behalf. The respondents have placed seniority list of Specialists Grade-II on records. In the said seniority list, there are 30 employees. Dr. Sudhakar Patnaik has been shown at seniority position no.1, whereas the 3rd respondent is at no.9. Insofar as the applicant is concerned, she has been shown at serial no.18. We may reproduce the seniority list up to serial number 18, by making a mention of specialty, so stated in the seniority list, in which employees up to serial no.18 were engaged. The same reads as follows:
S. No. Name Date of Birth Qualifications Discipline
1. Dr. Sudhakar Patnaik 31.10.44 MBBS/MD/Path. Path
2. Dr. P. Manchanda 31.10.32 MBBS,DGO Gyan.
3. Dr. J.Sounderya 31.7.46 MBBS,DGO Gyan.
4. Dr. G.S.Sachdeva 5.8.41 MBBS,DOMS Opthal.
5. Dr. V.P.Bedi 31.1.32 MBBS,MD/M Physician
6. Dr. R. C. Ranjen 9.9.39 MBBS,MS.GS Surgeon
7. Dr. R.C.Jain 27.2.37 MBBS,MS/Th.S Surgeon
8. Dr. S.K.Biswas 1.4.31 MBBS,MD/TB TB
9. Dr. Madhur Kudesia 1.6.50 MBBS,MD/Path Path
10. Dr.J.L.Chakravarty 9.8.46 MBBS,MPM, MRCP Psy.
11. Dr. R.C.Kakar 5.11.32 MBBS,MS/GS Surgeon
12. Dr. Ashok Virmani 20.7.40 MBBS,DMRE Radio.
13. Dr. B.S.Sohota 14.7.37 MBBS,MS/Orth Orth.
14. Dr. Y.P.Bawa 5.12.36 MBBS,MD Radio.
15. Dr. B.D.Raje S/C 4.5.38 MBBS,DTCD Medicine
16. Dr. S.M.Kapoor 8.6.28 MBBS,DA Anaes.
17. Dr. Charanjit Kaur 29.9.47 MBBS,MD/Path Path.
18. Dr. Madhu Jain 21.5.90 MBBS,MD Anaesth.
We have reproduced only columns up to no.5, as other columns may not be relevant. We may also refer to the final seniority list of Specialist Grade-I of only relevant columns, wherein the applicant has been shown at serial no.6 and the 3rd respondent at no.10. The same reads as follows:
S. No. Name of the officer Whether belongs to SC/ST if not, say neither Qualifications Date of birth Date of regular appt. in the grade
1. Dr. S.Sohota (Ortho) Neither MBBS,MS (Ortho) FRACS 14.07.37 01.07.86
2. Dr. D.C.Shah (ENT) Neither MBBS, DLO MS (ENT) 16.07.39 18.02.87
3. Dr. Ashok Virmani (Radiology) Neither MBBS, DMRE 20.07.40 12.03.87
4. Dr. R.C.Ranjan (Surgery) Neither MBBS, MS/GS 09.09.39 19.03.87
5. Dr. Sudhakar Patnaik (Patho) Neither MBBS (MS) (Patho) 31.10.44 10.08.87
6. Dr. Madhu Jain (Anaesthesia) HRH Neither MBBS, MD (Anae) 21.05.50 18.08.87 (AN)
7. Dr. G.S.Sachdeva (Opth) Retd. Neither MBBS, MD (Opth.) 05.08.41 21.09.87
8. Dr. J.N.Banvalikar (TB&Chest) Neither MBBS, MD 20.09.50 26.09.88
9. Dr.(Miss) J. Sandorva SC MBBS, DGO 31.07.46 23.03.90
10. Dr. (Mrs.) Madhur Kudesia (Patho) Neither MBBS, MS (Patho) 01.06.50 23.03.90 We note that the seniority lists in Grade-I and Grade-II, as mentioned above, are not of the year 1987 or earlier thereto, and may be of the years which may not be relevant, but what clearly emerges from the seniority lists is that, be it Grade-II or Grade-I, all the doctors have been given specialty, and that they were promoted as per vacancies that may arise in their respective discipline/specialty. From the seniority list of Grade-II, it would be seen that Dr. Sudhakar Patnaik in the Specialty of Pathology was seniormost. The next senior in the said specialty is the 3rd respondent. Even though, the applicant in the said seniority list is at no.18, but she belongs to the specialty of Anaesthesia. The next employee in the specialty of Pathology is Dr. Charanjit Kaur, shown at serial no.17 of the list. These are the employees who came to be considered for promotion/appointment to Specialist Grade-I in 1987, and there being only one vacancy being reported in Pathology, the senior most, i.e., Dr. Sudhakar Patnaik came to be promoted. Against the vacancy in the specialty of Pathology, no others, some of whom were admittedly senior to the 3rd respondent in Grade-II, were considered. Against the vacancy in the specialty of Anaesthesia, the applicant in the list of Grade-II was the senior most; all seniors to her belonged to other disciplines/specialties. If the plea raised by the respondents may have been true that by inadvertent mistake only one vacancy was reported, they ought to have placed on records seniority list of Grade-I, specialty or discipline-wise of 1987 or prior thereto. It may be recalled that the seniority list even in Grade-I makes a reference of the particular specialty or discipline a doctor may belong to. From the said seniority lists it could have been easily shown that out of the total posts available in the discipline/specialty of Pathology, how many became vacant by the time the vacancy was reported to UPSC in 1987. No such effort at all has been made by the respondents, and in absence of that, the plea raised by them after so many years that it was a case of inadvertent mistake of reporting only one vacancy instead of two has to be rejected. It may be noted that the respondents are said to have realized their mistake on the basis of representations made by the 3rd respondent, who primarily sought her appointment/ promotion in Grade-I earlier in point of time based on her seniority in Grade-II, or, at the most, for her working on ad hoc basis earlier in point of time in Grade-I. It is only in one of the representations, as mentioned above, that there is some faint mention of the vacancy position. The 3rd respondent, by and large, in every representation admitted that she was ignored for the reason that there was no vacancy in her discipline/specialty. It is for that reason that she clamoured for appointment/promotion in Grade-I on the basis of seniority in the feeder cadre. She clearly and specifically mentioned in her representation way back in 1990 that her promotion to specialist Grade-I was delayed not due to her being unfit for the said post, but due to the fact that posts in the said grade required different qualification, and that there was no such post in Pathology at that time. We may quote such sentence used by the 3rd respondent in her representation. The same reads, It is submitted that my promotion to the post of Specialist Gr.I was delayed not due to my being unfit for the post of Specialist Gr.I, but due to the fact that posts in the same grade of Specialist gr.I required different qualification and there was no such post in pathology Deptt. at the time. As mentioned above, the 3rd respondent pleaded that appointment or promotion to Grade-I should be from the consolidated order drawn-up by the selecting body, and that the relative seniority should be determined by length of service in the next lower grade, and further that promotions to the next grade would not require subject-wise qualifications but were to be granted on selection according to inter se seniority of Specialists. Once, it is clear that promotions/ appointments as Specialist Grade-I were dependent upon vacancies available in a particular specialty, and that insofar as the applicant is concerned, one post was vacant and she was promoted and appointed as Specialist Grade-I, the 3rd respondent could be so appointed only when a post in her specialty became available. The plea raised by the respondent after so many years that there was mistake in reporting one vacancy to UPSC in Pathology in the year 1987, sans any material placed on that behalf on records, has to be rejected. That being so, the 3rd respondent could not be retrospectively appointed from 1987 vide order passed in 2005. That apart, if the promotion/appointment on the post of Specialist Grade-I has to go only by seniority, then between Dr. Sudhakar Patnaik and the 3rd respondent, there were six employees. In other words, six employees were senior to the 3rd respondent in Specialist Grade-II. Some of them were in position in 1987. They would have been appointed/promoted in the Grade-I over and above the 3rd respondent. The plea raised by the 3rd respondent in her representation in 1990 that the promotion to Grade-I has to go by seniority and not as per specialty would not also carry any further the case of the respondent. It is the case of the applicant that the 3rd respondent kept quiet over the issue for long years for the only reason that had she made the plea with regard to appointment/ promotion in Grade-I as per seniority, she would have no case, as persons senior to her in the seniority list of Grade-II were in position. She kept a stoic silence for over a decade and made a prayer for her promotion/appointment on the post of Specialist Grade-I when all persons senior to her had retired. The matter does not rest at that. Present indeed is a case where the applicant even though, junior to the 3rd respondent in Grade-II, though belonging to a different specialty, not only came to be promoted to the post of Specialist Grade-I far prior to the 3rd respondent, but on the next higher post in Supertime Grade as well, the applicant was appointed/promoted four years earlier. The settled position of seniority when employees may have got next promotion as well cannot be unsettled. There would be no need to refer to the case law, as it is too well settled a proposition in service jurisprudence that long standing seniority cannot be unsettled after number of years, particularly, when employees may be promoted to the next higher post as well. It is trite that employees need to be allowed to attend to the duties attached to their posts peacefully and without any sense of insecurity, and no sense of uncertainty amongst public servants could be created by stale claims made after a lapse of a decade or so.
8. For the reasons mentioned above, this Transferred Application is allowed. The 3rd respondent could not retrospectively be promoted from 1987 on the dint of the order passed in 2005. In any case, the 3rd respondent cannot claim seniority over and above the applicant. Interim directions made by the Honble single Judge of the High Court as reproduced above, are made absolute. In peculiar facts and circumstances of the case, costs of the litigation are, however, made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/