Mrs. Kamlesh Jaiswal vs The General Manager, Centaaur ...
2001 Latest Caselaw 157 Del

ORDER

Vikramajit Sen, J.

1. The prayer in the present Writ Petition is that Respondents 1 to 3 be directed to restore/protect the seniority of the Petitioner for the post of Assistant Housekeeper. The facts are neither complex nor have raised any contentious issues. The Petitioner joined the service of the Centaur Hotel on 7th August, 1982; Respondent No.4 joined on 17.8.1982; and Respondent No.5 joined on 18.10.1982. The Petitioner was confirmed on 7.8.1983, Respondent No. 5 on 1.11.1983 and Respondent No.4 on 1.3.1984. It is, significant that although Respondent No.5 had joined service after Respondent No.4 his confirmation preceded that of Respondent No.4. The Petitioner as well as Respondent No.5, were promoted as Senior Supervisors on the same day, i.e. 1.2.1984 and were also confirmed together exactly one year latter. Respondent No.4, however, was promoted as a Senior Supervisor almost two years later, i.e. on 16.7.1986 and was confirmed in this post on 1.7.1987 i.e. almost two and a half years subsequent to the Petitioner and Respondent No.5.

2. It appears that two vacancies to the post of Assistant Housekeeper had fallen vacant in February, 1999, one in the General category and other in the, Reserved category for SC/ST candidates. In respect of the General category, a D.P.C. was constituted. Respondent No.5 was found most suitable in the said D.P.C. and was appointed, not on the strength of his being an SC/ST candidate but on merits, as the Assistant Housekeeper. The Petitioner, accordingly, was passed over as only one post was available in the general category. Respondent No.4 was appointed as in the SC/ST category. It is not certain whether she was appointed to this post as being the seniormost SC/ST candidate after excluding Respondent No.5 but this appears to be the position since she was junior to him as a Senior Supervisor. Alternatively, since these two Respondents were in the same category, it is quite possible that Respondent No.5 would not become senior to Respondent No.4 by virtue of his having been promoted as well as confirmed as a Senior Supervisor over two years before Respondent No.4. If this was not taken into consideration the corollary is that in treating Respondent No.4 as the senior most in the SC/ST category, the Respondents 1 to 3 had taken into account the fact that her joining preceded that of Respondent No.5. If this be so, the same policy and yardstick must be employed even for the Petitioner. In this case, she would become the seniormost Housekeeper. In the view that I have taken in the present Petition, this question, however, does not call for a definite answer. This is for the reason that Respondent No.5, having competed successfully in the DPC would be senior to the Petitioner. The competition therefore, is restricted between the Petitioner and Respondent No.4.

3. It was contended by Learned Counsel for Respondents 1 to 3 that at present there are no further vacancies for the post of Housekeeper and, therefore, the Writ Petition was premature and precipitate. On a query as to whether a seniority list has been maintained and whether in this list Respondent No.4 was shown senior to the Petitioner for the reason that former was appointed as an Assistant Housekeeper in February 1990 whereas the latter had been appointed in November 1990, the answer was in the affirmative. In these circumstances, in my view the Writ Petition would not be premature or precipitate since as and when the vacancies would occur, Respondent No.4 would be shown senior to the Petitioner in the Level of Assistant Housekeeper.

4. The controversy surrounding the seniority inter se the parties is no longer res integra and has been fully settled by the decision of the Constitution Bench of the Supreme Court in Ajit Singh Vs. State of Punjab, (1999) 7 Supreme Court Cases. It clarified and set down inter alia that (A) the roster-point promotees (reserved candidates) cannot count their seniority in the promoted category from the date of their continuous afficiation in the promoted post vis-a-vis the general candidates who were senior to them in the lower category but who were promoted later. (B) Rosters in the cases of reservation under Article 16(4) or Article 16(4-A) are not intended to determine seniority but are merely intended to provide "adequate representation" at the promotional level. (C) Courts should bear in mind that there are other provisions, namely Article 14, 16(1) and 335 of the Constitution which are also very important. (D) Since employment includes promotion, the latter must be based on equal opportunities. Article 16(4) and 16(4-A) do not confer any fundamental right and are enabling provisions; they confer discretion but do not create any duty or obligation which could be enforced by issuing a mandamus. (E) Rights of reserved candidates must be balanced with rights of equal opportunity under Article 16(1) and Article 14(F) The normal rule in promotional controversies is that the decision operates retrospectively. In order to set right imbalances, where a reserved candidate has risen to a level higher than that of the general candidate, the catch up rule would not apply. The prospective operation of decisions would be restricted only to this extent. Further imbalances can be alleviated by application of the ad-hoc principle.

5. Applying the Ajit Singh II ratio to the seniority controversy of the Petitioner vis a vis Respondent No.4 presents no difficulty. The former joined as a Supervisor (Level I for our convenience) as a general candidate on 7.8.1982 and was confirmed on 7.8.83; the latter joined at Level I on 17.8.82 as SC/ST candidate and was confirmed on 1.11.83. They were promoted to Level II (Senior Supervisors) on 1.2.84 and 16.7.86 and confirmed on 1.2.85 and 1.7.87 respectively. At Level III (Assistant Housekeeper) the Petitioner was appointed in November 1990 whereas Respondent No.4 was appointed earlier, in February 1990 as a SC/ST candidate. Being at the same Level, the Petitioner would assume seniority over Respondent No.4 by virtue of her earlier appointment i.e. 7.8.82 as compared with 17.8.82. The "catch up" rule would enable the Petitioner to regain her seniority over Respondent No.4. It must also be kept in perspective that had Respondent No.5 been considered for promotion as SC/ST, Respondent No.4 would not have been promoted to the reserved post.

6. A legal nodus emerges in respect of the seniority between the Petitioner and Respondent No.5. At Level II both were promoted on the same date i.e. 1.2.84. As the former had joined and been confirmed prior to Respondent No.5 she would retain her seniority over the latter. Shades of grey appear between them thereafter. As mentioned before, in February 1990 two vacancies occurred at Level III - one post each for the general and reserved candidates. As Respondent No.5 had attained seniority over Respondent No.4 as a consequence of his having been promoted to Level II on 1.2.84 vice her promotion on 16.7.86 he would have enjoyed precedence over Respondent No.4 in the reserved category, and keeping his superior record/performance, would have been promoted to the Level III. He would thereupon have blocked/exhausted the promotional avenue/chance of Respondent No.4 who is also SC/ST. He (Respondent No.5) however participated in the General DPC along with the Petitioner as no doubt Respondent No.4 could have also done. Because of his exemplary service record, which excels over not only Respondent No.4 but quite possibly even over the Petitioner, he was selected by the DPC in the general category. Pursuant to his selection, the Petitioner was not promoted at that time; she was successful nine months later, when another vacancy in the general category occurred. What transpired in February 1990 was that both posts were taken by SC/ST candidates, and it was only in November of that year that the Petitioner joined the others at Level III. I have already observed that thereupon the Petitioner would have regained her seniority over Respondent No.4, having 'caught-up' with her. But should the same position ensue in regard with Respondent No.5. As an SC/ST candidate he would be senior to Respondent No.4, although recruited later than her in 1982, since he ventured into Level II much before her. If Respondent No.5 remains an SC/ST candidate, the Petitioner would also be senior to him, having 'caught-up' with him. But, what is confounding the situation is that Respondent No.5 was promoted not as SC/ST but because of his individual merit, in the general vacancy. By so doing, he has delayed the promotion of a non-SC/ST colleague, and has enabled an SC/ST candidate to be promoted to Level III which would otherwise have not been possible. An imbalance has therefore been occasioned. It has been mandated by the Apex Court that the imbalance must be eradicated. The easiest solution is to apply the catch-up rule inter se the Petitioner and Respondent No.5 also, since they are at the same Level. However, adoption of this approach would necessarily entail turning a blind eye to the factum of Respondent No.5 having been promoted to Level III in the general category and thereby blocking the Petitioner's chances of a promotion and simultaneously enabling a fellow SC/ST colleague to a promotion ahead of her normal turn, even in the SC/ST category. In February 1990 two persons from this category enjoyed a promotion to the total exclusion of any person not enjoying the benefits of reservations. Imbalances are at once caused, and these escalate in quick progression. Let us postulate a situation where only two posts were available at Level III (Assistant Housekeeper) since February 1990. Both would be filled by reserved candidates. Let us further postulate that a vacancy has presently arisen at Level IV (Housekeeper) as a promotional post. Only SC/ST persons would be considered for this post. On promotion, the seniormost general category candidate would not be available for consideration as he/she would still be at Level II. In the present case, as another vacancy fortunately arose in November 1990, the Petitioner also reached Level III, but this is always not the case.

7. Logically, Respondent No.5 having been selected at Level III on merit, he must be treated post 1980 as not being eligible for any further preference on the strength his initially being SC/ST. An artificial classification, intended to advance the achieving of a truly egalitarian society, would vanish having achieved its purpose. A meritorious but erstwhile reserved candidate would be eligible for further promotions, but predicated on his merits, which he has already demonstrated and manifested. Imbalances would be alleviated. Excellence in performance would be rewarded and encouraged.

8. In this analysis, I do not consider it necessary to discuss Union of India Vs. Veer Pal Singh, . I direct Respondents 1 to 3 to fix the inter se seniority of the Petitioner and Respondents 4 and 5 by indicating them in the following order - (1) Respondent No.5 but without further entitlement of consideration as an SC/ST candidate; (2) Petitioner, having 'caught-up' with Respondent No.4 as as Assistant Housekeeper and (3) Respondent No.4 (reserved SC/ST). The Writ Petition is disposed off in these terms.