Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5236 OF 2008
Dir., Cent. Marine Fisheries Res. Inst. & Ors. … Appellants
Versus
A. Kanakkan & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Indian Council of Agricultural Research (ICAR) is a society
registered under Societies Registration Act, 1860. It is an apex
Agricultural Scientific Research Organisation. It has a network of
Research Institutes/ National Bureau, National Research Centres and
Project Directorates. It has 47 Research Institutes, 5 National Bureau,
26 National Research Centres, 10 Project Directorates, 594 Krishi
Vigyan Kendras and 73 All India Co-ordinated Research Projects.
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2. First Appellant herein is the Director, Central Marine Fisheries
Research Institute being affiliated to ICAR. Respondents herein, who are
four in number, were appointed in the post of ‘Computers’ under a
functional group known as ‘Laboratory Technician’ (in the scale of pay of
Rs.330-560). First respondent was appointed on 1.3.1972, second
respondent was appointed on 10.2.1975 and the third respondent was
appointed on 23.4.1976.
3. Indisputably ICAR, despite recommendations of the Third Pay
Revision Commission, granted a scale of pay of Rs.425-600/-.
We may, however, notice that the contention of the appellant in this
connection is that the pre-revised scale of pay for the holders of the post of
Computer was Rs.160-300/-. The said scale of pay was revised to Rs.330-
560. They were appointed as direct recruits as Technical Assistants (T-II-3)
in the pay scale of Rs.425-700 on or about 18.5.1987. The said posts were
under the functional group “Field/Farm Technician” of Technical Service
Rules of ICAR.
Relying on or on the basis of the decision of the Andhra Pradesh High
Court, respondents herein filed an original application before the Central
Administrative Tribunal in 1988. The said application was dismissed
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opining that they were not entitled thereto as the classification of two
categories was not unjust. It was furthermore held :
“I am of the view that the application in respect of
the relief sought in this case for the period they
were when they were made Technical Assistant is
hopelessly belated. The judgment of the Andhra
Pradesh High Court does not give them any right
to make this claim because they have ceased to be
Computor long back. There cannot be a
retrospective revival of a grievance which was not
felt when the alleged discrimination was in force.
That judgment could have helped them if on the
date they filed this application they were
Computors and suffered such grievance.”
4. It has not been denied or disputed that the said matter was not carried
forward further. It, however, appears that the Central Administrative
Tribunal, Cuttack Bench, Cuttack on an application filed by the Central Rice
Research Institute in its judgment dated 6.3.1994 passed in OA No.182 of
1991, relying on or on the basis of the decisions of the other benches of the
Central Administrative Tribunal, as also that of the Andhra Pradesh High
Court, held :
“To sum up, all the basic issues involved in this
case have already been addressed by earlier
judicial pronouncements and there are no new
insights to be had or any fresh inputs to be made,
and ipso facto, no new conclusions to be drawn.
What is crystal clear is that complete jurisdiction
exists for accepting the prayer of the applicants in
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this case. It is, therefore, directed that the
applicants, S/Shri Bibhuti Bhusan Nayak, Madan
Mohan Das and Akhaya Kumar Mishra be placed
in the pay scale of Rs.425-600 with effect from
1.1.1973 or from the actual date of their respective
appointment to the post of Computors. Further
they should be placed in Category-II-T (iv) in the
scale of Rs.550-900 with effect from 1.10.1975 or
from the date of their respective appointment.
This part of the direction of their placement in
relevant pay scales will be completed within 60
days of the date of receipt of a copy of the
judgment. The arrears on account of the different
in pay-scale that may become due to these
applicants as a result of the revised placement in
the scales as indicated above, will be calculated
and disbursed to them within 90 days from the date
of receipt of a copy of the judgment.”
5. Appellant No.2 filed a Special Leave Petition thereagainst before this
Court which on grant of leave was registered as Civil Appeal No.6673 of
1997 (arising out of SLP (C) No.23741 of 1995). By a judgment and order
dated 26.9.1997, the said appeal was disposed of, stating :
“The learned counsel has invited our attention to
Rule 5.1 of the said Rules which provides for
initial adjustment for existing employees and
submits that in view of the said rule on October 1,
1975, the respondents could only be fixed in the
pay scale of Rs.425-600, either in category I-T
(III) or in Category – II-T (III) depending upon
their qualifications and that the next scale of
Rs.550-900 falling in Category – II-T (IV) could
be given to them only by way of promotion after
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the initial fitment had been made with effect from
October 1, 1975.”
6. Appellant No.2 circulated the said judgment of this Court to its
affiliated units. Indisputably having regard to the intimation received by the
appellant No.2, various office orders were issued in between the period
10.8.2001 and 19.9.2003 whereby respondents were granted the benefit of
the said scale of pay of Rs.425-600 w.e.f 1.1.1973 on and from their date of
their appointment.
Some observations were made in relation thereto. The question is said
to have been re-examined by the appellant No.2 and it was allegedly found
that the said office orders have been issued without obtaining the approval of
the competent authority. On the aforesaid premise, the aforementioned
office orders dated 10.8.2001, 7.6.2003 and 19.9.2003 were withdrawn,
stating :
“As per the instructions received from Council,
this office order No.27-3/94-Adm. dated
07.06.2003 placing the following technical
personnel in the grade of T-II-3 in the pay scale of
Rs.425-700 w.e.f. 01.10.75 is hereby withheld
until further orders :
1. S/Shri A. Kanakkan, T-5
2. S. Haja Najeemudeen, T-5
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3. P.L. Ammini, T-5
This issues with the approval of the
Director, CMFRI, Cochin.”
A representation was made by the respondents which, by reason of an
order dated 15.6.2006, was rejected, stating :
“This reference to his representation dated
08.05.2006 Shri S. Haja Najeemudeen, T-5
(Technical Officer) is informed that the Competent
Authority in the Council has considered the
proposal regarding placement of the erstwhile
Comutors of CMFRI in the pay scale of Rs.425-
700 w.e.f. 01.01.75 and conveyed its decision vide
letter No.3(31)/01-1A Pt.III dated 04.05.2006 as
under :-
‘That the posts of Computors/Sr. Computors
were created in the pay scale of Rs.150-240
whereas some posts were created in the pay
nd
scale of Rs.168-300 (2 Pay Commission
rd
scale). The 3 Pay Commission revised the
pay scale of all these posts to Rs.330-560
w.e.f 01.01.1973. Subsequently, the
Ministry of Finance approved higher scale
of Rs.425-600 for such of the posts which
were created in the pay scale of Rs.168-300.
The proposal of the Institute does not merit
reconsideration in view of the fact and also
since the employees have lost their plea for
higher pay scale of Rs.425-600/- long
back.’ ”
7. Aggrieved by and dissatisfied therewith, respondents filed another
original application before the Central Administrative Tribunal, Ernakulam
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which was marked as 642 of 2006. By reason of an order dated 5.12.2007,
the said application was allowed. Upon consideration of the pleadings of the
parties, as also the materials brought on record, it was held :
“Though elaborate pleadings have been advanced
by the respondents with reference to the powers of
the Director General, ICAR in the subject matter
of the Division, we are of the view that all those
contentions are irrelevant and have been raised
only to justify the stand now taken and have
absolutely no basis. The respondents are now
denying any knowledge of grant of higher pay
scale in other institutions but they have no
explanation to offer about the Annexure A-2 letter
dated 15.01.1998 issued by them to all the Director
forwarding the Hon’ble Supreme Court’s judgment
stating that the benefit of initial fitment of the
existing employees is to be given as per Rule 5.1
of the Technical Service Rules and that further
benefits would be given only as per TSR and the
judgment has been forwarded to the concerned
Directors which admittedly imply that it has to be
implemented in letter and spirit. Evidently, the
matter was left to the Directors as competent
authorities to implement the orders in their
institute. No authority vests in Government or
ICAR to refuse to implement the directions of the
Apex Court. This letter only clarified that the
benefits has to be granted as per TS Rules. It is
really unfortunate that the HQrs of the ICAR are
now taking a stand that they have no knowledge of
the follow up action taken by the various Institute
and even going to the extent of stating that the
Hon’ble Supreme Court did not give any such
direction.”
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8. Noticing the decision of this Court, it was opined that the appellants
cannot deny grant of benefit to one group of employees having conferred the
same to the other group of employees in terms of the order passed by the
Andhra Pradesh High Court and the Chandigarh Bench of the Central
Administrative Tribunal. It was furthermore observed :
“In fact the applications in OA No.182 of 1991
before the Cuttack Bench were also in the lower
scale of Rs.150-300 at the time of their
appointment. Besides it is seen that two distinct
scales existed only upto third CPC. The Third
CPC had revised the pay scale of both and
introduced a unified scale of Rs.330-560 which
was the scale of approached by the Minister of the
respondents in Annexure A-9 is thus not factually
correct.”
As discussed above, all the grounds taken by the
respondents are found to have no merit being
factually incorrect and legally unsustainable.”
9. A writ petition was filed thereagainst which by reason of the
impugned judgment has been dismissed, stating :
“The claim of similarly placed persons was upheld
by the Andhra Pradesh High Court in W.P.
No.5741/1979. W.A. No.1474/1986 filed against
that judgment was also dismissed by the said court.
The respondents therein filed SLP No.23741/1995
before the Apex Court and the Civil Appeal
No.6673 of 1997 arising out of that SLP was heard
and dismissed ( sic ) by the Apex Court. Relying on
the above decisions, the CAT allowed the OA.”
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10. Mr. Amarendra Sharan, learned Additional Solicitor General for
India, appearing on behalf of the appellants, would contend :
1) The Order dated 17.8.1989 passed by the Central Administrative
Tribunal would operate as a bar to filing of the second original
application; the former having been dismissed and attained finality.
2) Respondents having been appointed in the scale of pay of Rs.130-300
and not in the scale of pay of Rs.160-300, they were not entitled to the
revised scale of pay of Rs.425-600.
3) Office orders purported to have been issued by the first respondent in
terms of the judgment dated 26.9.1997 passed by this Court in Civil
Appeal No.6673 of 1997 could not have been issued without approval
of the competent authority.
4) In any event, respondents having joined the posts of Laboratory
Technician on 18.5.1977, they could not have obtained the benefit of
the revised scale of pay as a ‘Computor’.
11. Mr. Paikeday, learned senior counsel appearing on behalf of the
respondents, on the other hand, urged :
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i) Respondents, being holders of post-graduate degree in Mathematics,
were entitled to the scale of pay of Rs.160-300 and, thus, they should
have been placed in the scale of pay of Rs.425-600 from the very
beginning.
ii) Although the original application filed by the respondents was
dismissed by the Central Administrative Tribunal by its order dated
17.8.1989, a fresh cause of action having arisen in the light of the
judgment of this Court passed in Civil Appeal No.6673 of 1997, the
principle of res judicata cannot be said to have any application at all.
12. Principle of res judicata concededly would apply to proceedings
initiated before the Central Administrative Tribunal. If the said principles
were applicable, the bar to maintain a fresh application on the self-same
cause of action would attract provisions of Section 12 of the Code of Civil
Procedure or the general principles of res judicata.
13. It is, however, not denied or disputed that relief to the persons
similarly situated had been granted by the Cuttack Bench of the Central
Administrative Tribunal. The decision of the said Tribunal was upheld by
this Court. It is only pursuant to or in furtherance of the directions issued by
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this Court, appellant No.2 issued a circular letter which is to the following
effect :
“S/Shri S. Haja Najeemudeen, T-4, V.P. Annam,
T-6, C.J. Prasad, T-5, and P.L. Ammini, T-5 have
represented the Deputy Director General
(Fisheries), ICAR for of CMFRI, Cochin as has
already been done by the Director, IVRI in respect
of the Computors employed at IVRI.
The whole representation was discussed with you
in the meeting with Dy. DG (Fisheries) during
your visit to Delhi in connection with Director’s
Conference. It was explained that the ICAR
circulated the judgment of the Hon’ble Supreme
Court in Civil Appeal No.6673 in the case of
ICAR Vs. Shri Bibhuti Bhushan Nayak and others
to all the Directors of the Institutes for guidance in
such cases at their respective institutes. It was on
the basis of this judgment that the Director, IVRI
allowed the pay scale of Rs.425-600 to IVRI Sr.
Computors in the scale of Rs.330-560 w.e.f.
01.01.73 and they were placed in the grade of T-II-
3 w.e.f. 01.10.75 as per rule 5.1 of Technical
Service Rules.
As decided in the meeting, I am enclosing
herewith a copy of the ICAR letter No.3.6/89-Estt.
IV dated 15.01.89 along with a copy of the
judgment of the Hon’ble Supreme Court for
considering the representation of all the 4 technical
officers listed in para 1 above, as the Appointing
Authority in accordance with the Technical
Service Rules. A copy of the Office Order dated
16.04.1999 issued by IVRI is also enclosed for
consideration.
This has the approval of Dy. Director General (Fy)
ICAR.”
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Pursuant to the aforementioned directions only, officer orders dated
18.10.2001, 7.6.2003 and 19.9.2003 were issued
14. It is one thing to say that an independent claim made by the
respondents were denied on the ground of delay and latches on their part, but
it is another thing to say that a benefit granted to them would be withdrawn
on the ground that the office order had been issued without any jurisdiction.
When a fresh cause of action arises, the principles of res judicata, it is trite,
would have no application.
15. The short question which arose for consideration before the Tribunal
was as to whether the appellants were justified in withdrawing the
aforementioned order dated 7.6.2003, despite the order dated 17.8.1989
passed by the Central Administrative Tribunal.
16. We may at the outset place on record that whereas, on the one hand,
appellants contended that each of its affiliated units are autonomous bodies,
they, on the other, put forward a contention that the second appellant control
the financial affairs of the unit. No statutory rules or any other arrangement
governing such relationship between the ICAR and its various units has been
brought to our notice.
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17. Furthermore, respondents are only four in number. According to
them, they had been discriminated against. Although their contention in
regard to the discrimination had not categorically been adverted to by the
Tribunal, the said factor must have been kept in mind while allowing the
original application. We may also place on record the stand taken by the
appellants herein in Original Application before the Chandigarh Bench of
the Central Administrative Tribunal being OA No.175 of 2004, wherein the
effect of the order passed by the Cuttack Bench of the Central
Administrative Tribunal as also this Court, was accepted, stating:
“It is submitted that the Council Headquarters had
also revised the pay scale of its Computor to
Rs.425-700 with effect from the date of his
appointment vide order No.1-31/96-Estt.IV dated
1.11.2000. A copy of the order dated 1.11.2000 is
annexed and marked hereto as Annexure R-7.
Because of these reasons, the similarly placed
nd
personnel working under the control of the 2
Respondent had made a series of representations
for extending the same benefit to them. After
protracted correspondence the matter was carefully
considered by the Respondents and it was finally
decided to extend the benefit based on the
Honourable Supreme Court judgment to these
similarly situated Computors by revising the pay
scale from Rs.330-560/- to Rs.425-700/- and place
them in T-II-3 grade w.e.f. 1.10.1975 or from the
date of appointment, whichever is later. These
personnel had earlier filed OA No.340/88 before
the Hon’ble Central Administrative Tribunal,
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Ernakulam Bench praying for extending the said
benefit.
It is submitted that the OA was, however,
disallowed by the Hon’ble Tribunal on the ground
that the OA was barred by limitation. The
concerned personnel had again made several
representations to the respondents for granting the
benefit. It is submitted that the respondents have
realized that there is merit in the claims of these
personnel and thus it was finally decided to extend
the benefit of pay revision and placement in T-II-3
grade (Rs.425-700/-) w.e.f. 1.10.1975, i.e., the date
from which the TSR came into effect in
accordance with the judgment of the Hon’ble
Supreme Court. It is further made clear that on the
other hand, the Applicant was neither appointed
initially as Computor nor possessed the Degree in
Mathematics/Statistics, discharged the duties and
functions of Computors any time during his
service period and hence he is not entitled for any
benefit whatsoever as extended to the Computors
based on the Hon’ble Supreme Court judgment
nd
forwarded by 2 Respondent vide Circular dated
15.1.1998 (Annexure – R6).”
18. We need not, however, go into the depth on the aforementioned
question. Respondents are four in number. Two of them have already
retired. Their claim was found to be justified even by the first appellant.
They had been granted the benefit of the said office order dated 7.6.2003 for
a period of more than two years. It will, therefore, be harsh if the
withholding of the said benefit is upheld only on a technical plea that
requisite approval therefor had not been taken from the second appellant.
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Even the principles of natural justice had not been complied with in issuing
the officer order dated 27.4.2005.
19. For the reasons aforementioned, we are of the opinion that it is not a
fit case where we should exercise our discretionary jurisdiction under Article
136 of the Constitution of India. The appeal, therefore, is dismissed. We,
however, make it clear that we have passed this order keeping in view the
facts and circumstances of this case and the same may not be treated to be a
precedent.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
May 5, 2009