Full Judgment Text
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CASE NO.:
Appeal (civil) 4862 of 2007
PETITIONER:
Purnendu Mukhopadhyay and others
RESPONDENT:
V.K. Kapoor and another
DATE OF JUDGMENT: 12/10/2007
BENCH:
S.B. SINHA & HARJIT SINGH BEDI
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No. 145 of 2003]
S.B. SINHA, J :
1. Leave granted.
2. This case has a chequered history. Appellants herein were
appointed as Chargeman Grade-II. They were, in terms of the Scheme
dated 23rd April, 1965, required to appear in an examination for
appointment to the post of Chargeman Grade-II or Supervisor Grade-A
initially. They appeared in the said examination. They were, however,
appointed as Supervisor Grade-A on account of the marginal difference
in the marks obtained by them from the others who were appointed as
Chargeman Grade-II. The Director General on or about 4th May, 1967
taking into consideration the marginal difference in the marks obtained
by the appellants decided to give another chance to the appellants to
appear within six months in the next examination so as to enable them
to be graded as Chargeman Grade-II, in the event, if they qualify
therein. It resulted in issuance of Government order dated 4th May,
1967 in terms of which the 1965 Scheme was amended as under :-
\023The Supervisory Apprentices who secure 5% marks less
in the aggregate than prescribed by the Central Selection
Board for gradation as Chargeman Grade II in a
particular gradation examination will be graded as
Supervisor Grade A/or equivalent but will be allowed to
take another chance at the next gradation examination
and on the basis of their performance may be graded by
the D.G.O.F. as fit for appointment as Chargeman Grade
II and appointed as such with effect from a date after they
are so graded in the subsequent gradation examination.
This will have retrospective effect to cover the past
cases in which the DGOF has already allowed the
Supervisory Apprentices another chance to appear in the
gradation examination.\024
Allegedly, however, the Government of India adopted a policy of
pick and choose and did not grant the benefit of the said Scheme to
which they were otherwise entitled thereto. A.K. Saxena and others
filed writ petition before the Delhi High Court. Appellant herein filed a
similar writ petition before the Calcutta High Court which was marked
as CR1671-W/83. On establishment of the Central Administrative
Tribunal under the provisions of the Administrative Tribunal Act, 1985
those petitions were transferred to the Central Administrative Tribunal
and were marked as TA-1069/86. However, with effect from 1st
January, 1980 the post of Supervisor Grade-A and the Chargeman
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Grade-II were directed to merge. The Central Administrative Tribunal
allowed the said Transferred Application of the appellants by an order
dated 9th July, 1990 directing :-
\023On the facts and circumstances of this case, we with
respect, agree with the observations of the Supreme
Court set out above. We are also of the view that the
respondent authorities, in not calling the applicants to sit
in the examinations held earlier had acted discriminately.
As the course for the official respondents has admitted
that holding of intended examination is not necessary.
We direct the respondent authorities not to hold the
examination. We also direct the respondent authorities to
refix the respective notional seniority of the applicants
and fix their pay scale and all benefits attached thereto as
per rule on the basis that all the applicants came out
successful in the selection test for promotion to the post
of Chargeman Grade II from their respective dates of
examination. But they will not be entitled to any back
wages or any other financial benefit save and except the
notional seniority. The applicants will be entitled to be
paid in accordance with the fixed pay scale and all these
directions must be completed within 90 days from date.
As the present application was filed in the representative
capacity by obtaining leave under Rule 11 of CPC from
the Hon\022ble High Court on 18-3-83, this decision will be
binding on all other persons similarly situated and
similarly affected. The respondents are directive to give
the same benefits to them to avoid future litigation on the
same issue.\024
However, the said direction was partially modified by this Court
to which we would advert to a little later.
The said order was challenged before this Court. No stay,
however, was granted therein. As the Central Government was not
implementing the said order the present contempt petition was filed.
Appellants herein also filed an interlocutory application which was
marked as IA 3 of 1992 for a direction upon the Central Government
not to make any promotion ignoring the order of the Tribunal dated 9th
July, 1990. This Court by its orders dated 21st September, 1992
directed :-
\023Heard learned counsel for both the parties on IA 3.
Taking in view, the entire facts and circumstances of this
case, we direct Union of India not to make promotions on
the posts of Foreman, Assistant Works Manager and
further higher posts ignoring the judgment of the Central
Administrative Tribunal, Calcutta dated 9th July, 1990 till
the final disposal of the present appeal. The appeal may
be listed for disposal in the month of January, 1993.\024.
The said order passed in IA No.3 of 1992, however, was
modified on an application filed in that behalf by the Union of India.
We may place on record that another application was also filed on
behalf of All India Association of Non-Gazetted Officers for
intervention and direction, whereupon by an order dated 13th May,
1993 this Court directed :-
\023Union of India has filed an application for modifying
the order dated 21.9.92 stating that this stay has been
causing bottlenecks in the operational system due to the
promotions having been stayed by this Court. Since the
appeal has already been directed to be posted for final
disposal, the stay creates difficulty for the administration
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to function. We permit the Union of India to make
promotions in respect of the posts above the post of
Foreman on according to the rules but any promotion
made will be further reviewed and be subject to the result
of the appeal. IA No. 5 is disposed of accordingly. The
Registry is directed to post this appeal immediately after
vacation subject to part-heard.\024
The appeal preferred by the Union of India was dismissed by this
Court by an order dated 5th August, 1993, observing:
\023Having heard the learned counsel for the appellant we
must confess our inability to appreciate the attitude of the
Union of India for approaching this Court by way of
Special Leave Petition and delay the matters b y another
three years.\024
Appellants contend that by the said order dismissing the appeal
preferred by the Union of India, this Court was alive to the fact that the
dispute between the parties not only related to original
appellants/petitioners but also affected their seniority and promotion
occurring during the pendency thereof. While considering the question
of removal of discrimination allegedly meted out to the appellants and
determination of their seniority which was material for their promotion
to higher post, it was observed :-.
\023Needless to say that despite appointment of every
supervisor Grade \023A\024 Chargeman Grade II the
discrimination which occurred due to enforcement of the
modified scheme since 1965 permitted only few
supervisors Grade A to appear in the next examination
persisted so far those Supervisor Grade \023A\024 were
concerned who were appointed prior to coming into force
of this scheme and were denied similar opportunity even
though they came in field of eligibility. The injustice
arose as, if the policy of permitted Supervisors Grade
\023A\024 to improve their grade would not have been
introduced then the seniority amongst the Supervisors
would have remained the same and those appointed in
one year would have remained senior to those appointed
in latter year.\024
With regard to seniority and the effect on promotion to higher
post, this Court observed :-
\023It is not the appointment of petitioners of Chargeman
Grade II from 1980 but also the determination of their
seniority which was material as it is admitted that the
higher posts are available for promotion on the basis of
seniority cum merit. The question of seniority therefore
was of utmost importance and unless there was some
such difficulty which could not be resolved the appellant
should have taken care to see that the order of the High
Court was complied.\024
The Hon\022ble Court further observed:-
\023In any case the Tribunal in directing the respondents to
be granted notional appointment as Charegeman grade II
from the date of their first examination. In the peculiar
circumstances of the case, does not appear to have
committed any error of law. In our opinion, this was the
only possible manner in which the injustice could have
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been remedied.\024
The Court, however, modified the said order to the following
extent :-
\023In the result the appeal fails and is dismissed with costs.
It is however, clarified that the placement of all those
supervisor grade A who came in the field of eligibility
namely of securing less than 5% marks in aggregate fixed
for selection as Chargeman Grade II, should be fixed by
directing that they were selected for that post six months
from the date of their Gradation Examination.\024
We may also notice here that the appellants were not to be
granted any back wages in terms of the order of the Tribunal dated 9th
July, 1990. They, however, claimed to be entitled to all the benefits
attached thereto including seniority and promotion to the higher posts.
The said order, according to them, was partially implemented wherefor
two letters one being dated 4th November, 1993 and another being dated
10th November, 1993 were issued stating :-
\023\005on the basis that all the applicants came out
successful in the selection test for promotion to the post
of Chargeman Gr. II from their respective dates of
examination. But they will not be entitled to any back
wages or any other financial benefits save and except the
notional seniority.\024
\023It was necessary to firm up the seniority position of the
individuals in the grades of Chargeman Gr. I Assistant
Foreman and Foreman as required by holding review
DPCs on the basis of the amended seniority list in the
grade of Chargeman Gr.II as on 1.1.77\024
The said orders were, however, withdrawn purported to be on the
basis of a Full Bench judgment of the Central Administrative Tribunal
which was rendered in the meanwhile. It was stated :
\023In view of the above, the beneficiaries in the case of
Purnendu Mukhopadhyay & Ors. can be allowed notional
seniority in the grade of Chargeman Gr. II (Tech) only,
for determining revised date from which presumptive pay
should be fixed. The persons who are granted notional
seniority can be superceded by persons regularly
promoted.\024
Later on the said order dated 4th November, 1983 was also
withdrawn directing :-
\02312. Thus the seniority of Purnendu Mukhopadhyay
and ors. in the revised seniority list of Chargeman Gr. II
(Tech) will count from the dates when they were
regularly promoted or appointed as Chargeman Gr. II
(Tech) according to recruitment rules.\024
It is not in dispute that one S.K. Ganguly and others relying on
the judgment and order of the Central Administrative Tribunal filed an
Original Application before it. The said O.A was allowed. The order
of the Tribunal in the case of Ganguly was implemented. The Tribunal
by reason of the impugned judgment, however, inter alia placing
reliance upon a decision of this Court in J.S. Parihar v. Ganpat Duggar
and others [(1996) 6 SCC 291] and Vijay Singh, Secretary Home and
another v. Mittanlal Hindoliya [(1997) 1 SCC 258] accepted the said
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plea of Union of India and inter alia directed :-
\023While finalizing such revised seniority, for deciding
inter se seniority vis-a-viz the 26 petitioners of OA
789/96, who have been indentified by the official
respondents as similarly circumstance with the successful
applicants of TA. 1069 of 1986 (Purnendu
Mukhopadhyay & Ors. Vs. Union of India and others)
and have accordingly been notified as such by the official
respondents through their notifications dated 14.8.85 and
14.11.95 vide Anenxures E and F respectively to OA
789/96, read with D.G.O.F. Notification dated 23.2.,96,
Annexure G in MA 222/1995 it will be necessary that
they are treated as belonging to the group described at
para 80(I) of the Full Bench (PB) judgment dated
22.12.1995, reproduced at para 51(1) above, in the
instant judgment. In other words, they would be in the
first category of employees who were appointed as
Chargeman Gr.II prior to 1.1.73.\024
This Court by an order dated 1st March, 2007 with a view to
ascertain the correct position in regard to the implementation of the
earlier orders, directed the respondents to file a status report. Pursuant
to the said direction a status report has been filed. In the said status
report it has been accepted that the benefits given to S.K. Ganguly and
others have not been given to the appellants inter alia in view of the
pendency of the present special leave petition as also interpretation on
the concept of notional seniority by the Full Bench of the Central
Administrative Tribunal dated 22nd December, 1995.
The bone of contention of the respondents, therefore, is the
judgment of the Full Bench of the Central Administrative Tribunal
dated 22nd December, 1995 as appearing in their affidavit, which is as
under:
\023(i) The judgment decided the principles of seniority of
the various categories of Chargeman Grade II(T). All the
candidates in the present SLP got their notional seniority
prior to 01.01.73 in pursuance of the judgment of the
Hon\022ble Supreme Court of India dt. 05.08.1993. Hence
they are the first lot of persons for the purpose of
seniority in the psot of Chargeman Grade II(T) as per the
judgment of the Full Bench of the Hon\022ble Tribunal and
have been given the seniority in the grade as per sub-para
(i) and para 80 of the Full Bench judgment.
(ii) The judgment of Full Bench had also interpreted
the concept of notional seniority and its consequential
benefits in Para 76, 77 & 78 of the judgment of the Full
Bench of the Hon\022ble Tribunal. As per the interpretation
the notional seniority is used only for determining the
date with effect from which the presumptive pay should
be fixed. It does not give the benefit of seniority. Higher
notional seniority cannot be given to the detriment of
others who have been actually promoted earlier. It is not
always necessary that retrospective promotion should
also be accompanied by retrospective seniority.\024
Submissions of Mr. Sushil Kumar Jain, learned counsel
appearing on behalf of the appellants, inter alia are -
(i) In view of the judgment of the Central Administrative
Tribunal as confirmed by this Court with modification, the
appellants were not only entitled to be appointed as
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Chargeman Grade-II but also were entitled to promotion to
higher grades and respective notional seniority at each level.
(ii) Determination of seniority at each grade therefore was
material.
(iii) Although an order of stay was passed by the Central
Administrative Tribunal in OA No. 521 of 1988 but the same
related to only paragraph 13 of the judgment of the Tribunal
and not paragraphs 11 and 12 thereof.
(iv) The appellants were entitled to promotion having regard to the
facts that those who were juniors to them have been promoted
in terms of Rule 18.4.3 which reads as under :-
\02318.4.3 If the officers placed junior to the officer
concerned have been promoted, he should be promoted
immediately and if there is no vacancy the junior most
person officiating in the higher grade should be reverted
to accommodate him. On promotion, his pay should be
fixed under F.R. 27 as the stage it would have reached,
had he been promoted from the date the officer
immediately below him was promoted but no arrears
would be admissible. The seniority of the officer would
be determined in the order in which his name, on review,
has been placed in the select list by D.P.C. If in any such
case a minimum period of qualifying service is
prescribed for promotion to higher grade, the period from
which an officer placed below the officer concerned in
the select list was promoted to the higher grade, should
be reckoned towards the qualifying period of service for
the purpose determining his eligibility for promotion to
the next higher grade.\024
(v) The contention of the respondents that the employees who had
been accorded notional seniority cannot be equated with those
who had been regularly appointed is unsustainable as the
object and purport of the order of the Tribunal as also of this
Court were to remove discrimination meted out to the
appellants by promoting their juniors.
(vi) The order of the Full Bench dated 22nd December, 1995 is not
applicable
According to the appellants, their case falls under category I of
the Full Bench judgment. This fact has also been accepted by the
respondents in their status report. Thus if the appellants were to be
appointed and or promoted as Chargeman Grade-II before 1st January,
1973 they became seniors to the other employees. As we have noticed
hereinbefore that S.K. Ganguli and others had been given the benefit of
the order passed by the Tribunal. We do not appreciate the stand of the
respondents in this behalf inasmuch as whereas one set of order
involving employees who were similarly situated to those of the
appellants, benefits have been given but the same are being denied to
them. Such an action on the part of the respondents in our opinion is
wholly unjustifiable. The judgment of a court, as is well known, should
not be read as a statute. It has to be read in its entirety. So read, the
appellants had become entitled to the grant of benefits contemplated
thereby. There is no reason why the same shall be denied to them.
[See Ramesh Chand Daga v. Rameshwari Bai (2005) 4 SCC 772,
Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697,
Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 and P.S.
Sathappan v. Andhra Bank Ltd. (2004) 11 SCC 672] Our attention has
also been drawn to the fact that apart from S.K. Ganguly and others
some other persons who were similarly situated, namely - Prem Kumar
Saha; S.K. Majumdar and Alopi Lal, have also been granted the same
benefits.
In a case of this nature, in particular having regard to the fact that
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the respondents have granted similar benefits to others, we fail to
understand as to how the decision of this Court in J.S. Parihar (supra)
and Mittanlal (supra) could be applicable. The State cannot treat
employees similarly situated differently. It cannot implement the
orders in relation to one and refuse to do so in relation to others. It is
also not a case like J.S. Parihar (supra) where while implementing the
orders, a particular stand has been taken by the employer giving rise to
a subsequent cause of action. It is also not a case where the order of
this Court is capable to two interpretations. [See State of Bihar v.
Rani Sonabati Kumari AIR 1961 SC 221, State of Kerala v. Unni
(2007) (2) SCC 365 and Sneh Enterprises v. Commissioner of Customs
2006 (7) SCC 714].
For the reasons aforementioned the impugned judgment cannot
be sustained. The appeal is allowed. We, however, before taking any
punitive action against the contemnors at this stage, would like to issue
a direction upon them to fully implement the orders of this Court as
modified by this Court on the same terms as was done in the case of
employees similarly situated. In facts and circumstances of the case the
appellants shall also be entitled to costs which we quantify at
Rs.25,000/-.