- (1.) The short question of law raised in the instant petition filed under Article 226 of the Constitution is whether 'catch-up principle' as propounded in various judgments rendered by Hon'ble the Supreme Court, would be applicable so as to benefit the original applicant-respondent No. 1, who is a candidate belonging to General category. The instant petition is directed against the judgment dated 26.5.2004 (P-7) rendered by the Chandigarh Bench of the Central Administrative Tribunal (for brevity, 'the Tribunal') holding that the 'catch-up principle' would be available to original applicant-respondent No. 1 and on promotion to the post of Assistant in the office of Chief Architect, Department of Urban Planning, she would regain her seniority over the petitioner who was promoted as such against a roster point belonging to Scheduled Caste ahead of the original applicant-respondent No. 1. For the aforesaid view, the Tribunal has placed reliance on instructions dated 03.07.1986 (R-2) and proceeded to hold that the original applicant-respondent No. 1 would be entitled to regain her seniority on the ground that in the lower cadre of Steno Typist, she was senior to the petitioner. The view of the Tribunal is discernible from Para 6 and 7 of the judgment which reads as under :- "6. Now coming to the question of promotion of respondent No. 6 to the post of Senior Assistant in 1990, it is an admitted fact that the applicant joined as Steno Typist in 1974 and the respondent No. 6 (Mrs. Devendra Kaur) joined as Steno Typist in 1983. Thus the applicant was senior to Mrs. Kaur. However, since Mrs. Kaur belongs to SC category, she was promoted as Senior Assistant in 1990, by giving her the benefit of reservation of the post of Senior Assistant, whereas the applicant who was a general category candidate was promoted in her turn in 1994. The learned counsel for the applicant stated that prior to 17.6.1995 the following instructions governed the seniority of SC candidate vis-a-vis general candidates :- 'If a candidate belonging to the Scheduled Caste or Schedule Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/OBC candidate who is promoted later to the said immediate higher post/grade, the general/OBC candidate will regain his seniority over such earlier promoted candidate of the SC and ST in the immediate higher post/grade.' 7. These instructions are squarely applicable in the present case. The above position was however, later changed by amending Article 16(4A) of the Constitution right from the date of its inclusion in the Constitution i.e. 16th June, 1995 with a view to allow the SC/ST candidates to regain the seniority in the case of promotion by virtue of rule of reservation. In the instructions issued on the subject, the DOP&T in its order dated 21.1.2002 (Annexure A-8) in para 4(1)(b) has very clearly stated that "the above decision shall be effective from 17th June, 1995." These instructions have also been reiterated by the Chandigarh Administration in its letter dated 30.3.1998 (Annexure A-15). As Mrs. Kaur was promoted to the post of Senior Assistant in the year 1990 and the applicant was promoted in 1994, i.e. prior to the crucial date of 17.6.1995, the extant instructions prevailing in 1994, which allowed general candidate to regain his/her seniority over an earlier promoted SC/ST candidate will be applicable." (Italics by us)
(2.) It is also pertinent to mention that on the basis of the aforesaid view expressed by the Tribunal, the gradation list of Senior Assistant circulated vide letter dated 04.08.2003 (A-1) was set aside and official respondents were directed to accord seniority to the original applicant-respondent as Senior Assistant over the petitioner in accordance with the instructions prevailing prior to 17.06.1995 with all consequential benefits, including grant of promotion on the post of Superintendent, if she is otherwise eligible according to the rules.
(3.) In order to put the controversy in its proper perspective, it is necessary to notice few facts. The original applicant respondent No. 1 is a direct recruit on the post of Steno-Typist and she was appointed as such on 26.12.1974. She belonged to General category and was further promoted on the post of Junior Scale Stenographer on 24.09.1977. On the other hand, the petitioner, who belongs to reserved category of Scheduled Caste, was appointed as Steno Typist on 06.01.1983, which is more than eight years later. Obviously she is far junior to the original applicant in the cadre of Steno-typist. A roster point vacancy belonging to Scheduled Caste in the cadre of Senior Assistant became available in October, 1989 and as per the instructions issued by the official respondents, all vacant posts were required to be filled up by 31.03.1990. Accordingly, the petitioner was given promotion as Senior Assistant on 28.03.1990 and she joined as such on 29.03.1990. However, her promotion order was withdrawn on 26.04.1990, on the ground that she did not pass the Assistant Grade examination. She challenged the withdrawal of her promotion order by filing O.A. No. 492-CH of 1990. The Tribunal vide order dated 10.04.1997, set aside the order dated 28.03.1990 by giving liberty to the official respondents to issue fresh Show Cause Notice to the petitioner. However, the official respondents promoted the petitioner on the post of Senior Assistant vide order dated 06.06.1997 (P-2) w.e.f. 29.03.1990 with the condition that she would have to qualify Assistant Grade examination as and when conducted by the Chandigarh Administration.;