E L COELHO Vs. MUMBAI PORT TRUST

JUDGEMENT

(1.) THIS petition under Article 226 arises out of the dispute between a general candidate and reserved candidates working in Mumbai Port Trust Hospital in regard to their seniority. The petitioner is a general candidate. She is presently working as Sister in Charge in Mumbai Port Trust Hospital of respondent No. 1. The respondent No. 4 was also working as Sister in charge who has been now promoted to the post of Asst. Matron. The respondent Nos. 5 and 6 are also members of the nursing staff of respondent No. 1 and working as Sister in Charge in the hospital of respondent No. 1. The petitioner joined the services of respondent No. 1 on 1-8-1969 as Nursing Sister. On 1-3-1972 she was promoted to the higher post of Nursing Sister (Senior ). She was further promoted to the post of Sister in Charge on 1-1-1994. The respondent Nos. 4 to 6 joined service of respondent No. 1 much later. As seen from the seniority list at Annexure A to the petition respondent No. 4 joined service of respondent No. 1 in 1974 while respondent Nos. 5 and 6 joined in the year 1977 and 1981 respectively. The respondent Nos. 4 and 5 belong to Scheduled Caste whereas respondent No. 6 belongs to Scheduled Tribe and they all belong to reserved category.

(2.) THE promotional channel as provided in the respondent No. 1s hospital for Class III Nursing Cadre is as follows :level 1-Nursing Sister; Level 2 Nursing Sister (Senior); Level 3-Sister in Charge and Level 4-Assistant Matron. The petitioner was senior to respondent Nos. 4 to 6 at Level 1. At Levels 2 and 3, the respondent Nos. 4 to 6 got accelerated promotions as reserved candidates. The petitioner also got eventually promoted to Level 3 i. e. Sister in Charge on 1-1-1994. We hasten to add that there is no reservation at Level 4 i. e. the post of Assistant Matron being a single cadre post. At Level 3, the petitioner had to be considered senior to the reserved candidates following the catch up rule laid down by the Constitutional Bench of the Supreme Court in (Ajit Singh II v. State of Punjab), A. I. R. 1999 S. C. 3471. The respondent No. 1 however, informed the Department Promotional Committee (for short D. P. C.), by its letter dated 26-6-2000 that the respondent Nos. 4 to 6 should be treated as senior to the petitioner as they belong to the reserved category. It seems that earlier respondent No. 1 had issued a circular dated 17-4-2000 to all heads of departments in the form of guidelines and asked them to follow the reservation policy. By the said circular it was directed that the seniority of employees consisting of reserved and general candidates at Level 3 is to be revised only in cases of the promotions of the reserved candidates effected after 1-4-1997 to the concerned feeder post. It is stated by the respondent in it reply that the circular dated 17-4-2000 has been issued in accordance with the directions of the Government of India as contained in the Office Memoranda dated 30-1-1997, 21-3-1997 and 2-7-1997. It is stated that the Office Memorandum dated 30-1-1999 does not contemplate review of the seniority list prevailing on 30-1-1997, nor does it prohibit promotion of officers (including SC/st officers) on the basis of the seniority list prevailing on 30-1-1997. The validity of the circular dated 17-4-2000 as also the promotion of the respondent Nos. 4 to the post of Assistant Matron pursuant to the said circular is questioned in the present petition under Article 226.

(3.) WE have heard Mr. Sanglikar for the petitioner, Mr. Bharucha for respondent Nos. 1 to 3 and Mr. C. U. Singh for respondent Nos. 4 to 6.