Postgraduate Institute of Medical Education and Research v. Lekh Raj Vyas & Anr.

HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. Deepak Sibal, Advocate, for the petitioner.

1. 2. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest? M.M. KUMAR, J.

1. The Postgraduate Institute of Medical Education and Research (PGIMER) has challenged order dated 13.9.2010 (P-7), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), accepting the prayer made by Shri Lekh Raj Vyas, original applicant-respondent No. 1. The Tribunal has referred to earlier order dated

9.2.2010 passed in the case of original applicant-respondent No. 1 in O.A. No. 69-CH-2009. In the aforesaid proceedings, the original applicant-respondent No. 1 had challenged an order dated 19.1.2009 passed by the petitioner and its officers. The Tribunal had earlier on 9.2.2010 held that the order dated

19.1.2009 is illegal because it was passed at the back of the original applicant- respondent No. 1 and no reasons were recorded for the same. Accordingly, it was set aside and as a consequence thereof order dated 12.7.2007 (P-1) was CWP No. 22322 of 2010 2 considered to have revived. A significant direction was also issued holding that the order dated 12.7.2007 was to operate from the day later than the junior Office Superintendent was promoted and that the original applicant-respondent No. 1 was to be junior most among Office Superintendents as on 12.7.2007.

2. It is pertinent to notice that the petitioner through its Director has passed an order on 12.7.2007 (P-8), which reads thus:- “ In pursuance of the recommendation of the Cadre Anomaly Committee dated 17.04.206, and orders passed by the Hon’ble Punjab and Haryana (High?) Court in CWP No. 496 of 2007 further approved by the Hon’ble President, PGIMER, Chandigarh in his capacity as Chairman of the Government Body of the Institute vide order dated 06.07.2007, the post of Hostel Manager held by Shri Lekh Raj is hereby merged into the cadre of Office Superintendent with immediate effect.”

3. It is also apposite to mention that the dispute was with regard to the order of merger and the post held by the original applicant-respondent No. 1 of Hostel Manager had, therefore, been deemed to have merged with that of Office Superintendent. The Tribunal in the impugned order has held that the order dated 12.7.2007 has been withdrawn vide order dated 19.1.2009 and at one stage the post of Hostel Manager stood de-merged and separated from the cadre of Office Superintendent. However, the aforesaid order was set aside by the Tribunal on 19.2.2010 in O.A. No. 69-CH-2009, which has attained finality.

4. When the original applicant-respondent No. 1 filed O.A. No. 420- CH-2010, the Tribunal then proceeded to consider whether the original applicant-respondent No. 1 would be entitled to remain in the cadre of Office Superintendent with seniority at the bottom of the seniority list from the date the order was passed on 12.7.2007 or he would be assigned seniority w.e.f. CWP No. 22322 of 2010 3

5.2.2009, the date on which Shri Vijay Kumar Ahuja was appointed. The Tribunal held that the original applicant-respondent No. 1 has to be granted seniority as Office Superintendent at the bottom of the last seniority list of Office Superintendent as on 12.7.2007 and not at a later date as was sought to be done by the petitioner. The operative part of the order is discernible from para 7 of the judgment of the Tribunal, which reads as under:- “7. A bare perusal of order passed by us on 9.2.2010, as extracted above leaves no scope for doubt at all on the issue of assignment of seniority to the applicant in as much as the Court has clearly declared the order dated 19.1.2009 as illegal on variety of grounds and the same was set aside reviving the order dated

12.7.2007 (Annexure P-11), with the condition that the same shall be effective from the day later than the junior most Office Superintendent was promoted. In other words the position of Junior most person in the cadre of Superintendent is to be seen as on

12.7.2007 and not at a later date as has been done by the respondents. The respondents have mis interpreted the order dated

9.2.2010 in regard to date of appointment/promotion of a “Junior most person” in the cadre of Office Superintendents. The position was not to be seen when the judgment was passed by this Tribunal in February, 2010 but it surely was to be seen with regard to the order dated 12.7.2007. To be precise the applicant was to be placed as junior most to the persons who stood appointed on regular basis as Office Superintendents as on 12.7.2007. A person entering into cadre of Office Superintendent after 12.7.2007 will have to be treated as a junior to the applicant. Whereas in this case the respondents have done exactly opposite by treating number of CWP No. 22322 of 2010 4 persons appointed as Office Superintendent after 12.7.2007, as senior to the applicant. This is not the letter and spirit of the order. The words and phrases used in the judgment are very clear and entertain no element of doubt that once the order dated 12.7.2007 stood revived and applicant became member of the service as on

12.7.2007, he was to be assigned bottom seniority in the cadre as on 12.7.2007 and not from a date falling thereafter. The plea raised by the respondents during the course of arguments that the present application needs to be dismissed for non joining the necessary parties, i.e., those from whom the applicant is to be junior as per the impugned orders, has to be rejected. The order passed by us has to relate as regards seniority between the applicant and those who were already in position on 12.7.2007. Once, the order of the respondents has been revived and the seniority of the applicant has been fixed at the bottom of those who came to be appointed upto the date of the order, as mentioned above, those who came to be appointed later cannot be said to be necessary or proper parties at all.”

5. Having heard learned counsel for the petitioner we find that once the order dated 19.2.2010 passed by the Tribunal in the O.A. No. 69-CH-2009 has attained finality then the order dated 12.7.2007 would certainly be revived and the seniority has to be given to the original applicant-respondent No. 1 w.e.f. 12.7.2007 at the bottom of the seniority list of Office Superintendent, as has been rightly held by the Tribunal. There is, thus, no merit in the petition. It does not warrant admission. Accordingly, the same is dismissed. (M.M. KUMAR) CWP No. 22322 of 2010 December 15, 2010 Pkapoor 5 JUDGE (RITU BAHRI) JUDGE