Judgment:
DR. K B S Rajan, Judicial Member
This Review application has been filed, seeking review of order dated 7th November 2008 in OA 190 of 2006, whereby the OA stood dismissed. The main ground in this R.A. is that Ground No. VI of the OA and the judgment of the Hyderabad Bench have not been taken into consideration while passing the judgment under review. Had these been considered, the application would have been allowed. The said ground reads as under:
"VI. Without prejudice to the above submissions, the Applicant begs to submit that in terms of the decision of the Hon'ble Supreme Court in RK Sabbarwal case, read with Annexure A7, the Respondents are bound to identify the posts in the higher cadre and also the incumbents in the lower cadre as General Category, SC and ST category. After such identification of the posts and incumbents is made only those who belong to the respective categories can be promoted to the higher posts earmarked for them. Against general category posts only persons belonging to and identified as general category can be promoted. There is no question of any inter-se seniority's between a general category employee and SC/ST category
employee for being promoted to a general category vacancy. The vacancy against which the 5th respondent was promoted is a general category vacancy and in fact she has no right to be so promoted against that vacancy in so far as her promotion to the post of Chargeman-I in scale of Rs 5500-9000 was against a reserved vacancy in the SC category. Promotion of the 5th Respondent therefore, overlooking the applicant against the general category vacancy is arbitrary, discriminatory and unconstitutional."
2. Vide Annexure A-8 representation, the applicant had stated that he had been senior to the fifth respondent at the level of senior chargeman in 1987 against a general vacancy while Respondent No. 5 was promoted to the said post on 25th October, 1991 against a post reserved for scheduled caste. The next promotional post was Foreman followed by Senior Foreman. The Fifth respondent was promoted to the post of Foreman in 1994 while the applicant was promoted in 2000.
3. The contention of the applicant in the OA is that in the wake of judgment in R.K. Sabharwal, the general candidate who was promoted later than a reserved candidate would regain his seniority in the promoted post and it is on the basis of that position in the seniority list that the general candidate should be considered for further promotion. Thus, when the respondent was promoted to the post of erstwhile Foreman in 1994 ahead of the applicant who was senior to her in the feeder grade, on the promotion of the applicant, he regained his seniority. Hence, he should have been considered for promotion to the next higher grade, which i that of Asst. Foreman as by then, the erstwhile posts of Foreman and Senior Foreman were redesignated as Chargeman I and Foreman and an intermediate post of Asst. Foreman was introduced between the two posts.
4. Counsel for the applicant contended that the claim of the applicant is
based on the decision of Hyderabad Bench also.
5. Heard on the Review Application and the entire case has been considered. Restoration of seniority of the applicant as in the grade of erstwhile Senior Chargeman (and present charge man I) in accordance with the orders passed in the wake of R.K. Sabbarwal's judgment would be possible only if the applicant's promotion to the grade of erstwhile Foreman occurred prior to 85th Amendment. Admittedly the applicant was
promoted to the said post only in 2000. The earlier provisions as contained in order of the Ministry of Personal (DOPT) OM No. 200011/1/96-Estt (D) dated 30th January 1997 had been superseded by Ministry of Personnel Public grievances order dated 21 January 2002 and as such, there is no question of the applicant's being treated as senior to the fifth respondent in the grade of erstwhile foreman. The claim of the applicant would have been accepted had he been promoted to the grade of erstwhile Foreman prior to 1995. In the order under review, the fact that the applicant had been promoted to the grade of erstwhile Foreman only in 2000 had been recorded vide 2 and on the basis of the principles enunciated in the decisions of the Apex Court as contained in para 9 and 10, it has been correctly held that the applicant is not entitled to his claim.
6. The Review application, is therefore, liable to be dismissed. We order accordingly.