Full Judgment Text
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CASE NO.:
Appeal (civil) 919 of 2002
PETITIONER:
State of Karnataka & Ors.
RESPONDENT:
C. Lalitha
DATE OF JUDGMENT: 31/01/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
JUDGMENT
S.B. SINHA, J.
Construction of an inter-parties order of this Court is in question in
this appeal wherein the validity of an amendment of the reservation policy of
the State which was the subject matter of a decision of this Court in N.T.
Devin Katti and Others v. Karnataka Public Service Commission and Others
[(1990) 3 SCC 157], had been raised. This Court therein declared that the
revised reservation policy was not applicable to selection initiated prior
thereto and consequently directed:
"15\005In this view, we direct the State Government
to appoint the appellants on the posts of Tehsildars
with retrospective effect, but if no vacancies are
available the State Government will create
supernumerary posts of Tehsildars for appointing
the appellants against those posts. We further
direct that for purposes of seniority the appellants
should be placed below last candidate appointed in
1976, but they will not be entitled to any back
wages. The appellants will be entitled to promotion
if otherwise found suitable."
The Respondent thereafter filed an original application before the
Karnataka Administrative Tribunal claiming appointment as Assistant
Commissioner although in terms of the said revised reservation policy she
was appointed as a Tehsildar. The said original application having been
dismissed, a Special Leave Petition was filed thereagainst before this Court
which was allowed by an order dated 15th March, 1994 in the following
terms:
"The appellant was admittedly selected and shown
in the first list which is upheld by this Court in
N.T. Bevin Katti and Ors. Vs. Karnataka Public
Service Commission and Ors. (1990) 3 SCC 157.
In this view of the matter, we allow the
appeal and set aside the order of the Karnataka
Administrative Tribunal. We are informed that the
appellant has since been promoted to Class-I post
of Assistant Commissioner (Karnataka
Administrative Service). If no vacancies are
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available, the State Government will create a
supernumerary post for the appellant’s
appointment. We further direct that for the
purposes of seniority, the appellant shall be placed
below the last candidate appointed in 1976, but she
will not be entitled to any back wages. The
appellant will be considered for promotion if
otherwise found suitable. These directions will be
carried out within three months from today.
The appeal is allowed accordingly. No
order as to costs."
An application for review was filed by the Appellant herein inter alia
on the ground that she did not have any legal right to the said post as the
State of Karnataka did not intend to give effect to the additional select list
prepared by the Karnataka State Public Service Commission (Commission),
which was dismissed.
The State of Karnataka thereafter sought for the opinion of the
Commission. The Commission by communication dated 24.6.1995 advised
that as per the Respondent’s ranking in the General Merit Category \026 I posts,
she should be considered for the post of Assistant Controller of Accounts
which is a Category \026 I post, as the marks secured by her were below the
marks secured by the candidates selected as Assistant Controller of
Accounts. The Respondent did not accede thereto when such a post was
offered to her.
After an unsuccessful attempt to obtain some order in a contempt
proceedings instituted by her, the Respondent filed a fresh original
application before the Administrative Tribunal which came to be dismissed
whereupon she filed a writ petition before the Karnataka High Court.
We may at this stage notice that the ground upon which the
Respondent’s application was dismissed by the Tribunal inter alia was that
one B.N. Mahesh was at S.No. 1 of the said list whereas the Respondent
figured at S.No. 2 and the former’s claim for appointment as Assistant
Commissioner was thence pending before this Court. The matter of Shri
B.N. Mahesh being Civil Appeal No. 3475 of 1998 was dismissed by this
Court on 22.7.1998 on the ground that he moved the Tribunal at a belated
stage. Taking note of the said fact and interpreting the judgment and order
dated 15th March, 1994, a Division Bench of the High Court allowed the writ
petition filed by the Respondent against the order of the Tribunal directing
the State to implement the order of this Court within four months without
reference to the assessment of merit by the Commission as well as the fact
that the Government had earlier offered appointment to her as Assistant
Controller, State Accounts Department, Group ’A’ on the Commission’s
recommendations.
Mr. P.P. Rao, learned senior counsel appearing on behalf of the
Appellant submitted that the State intended to implement this Court’s
judgment dated 15th March, 1994 wherefor only the recommendation of the
Commission was sought for and pursuant thereto and in furtherance thereof
the notification dated 14.8.1995 was issued. It was argued that the effect of
the order of this Court is to render the parties to the same position as if the
reservation policy was not amended and if so construed, the Respondent
having been placed in the supplementary list could not have laid any claim
for any post in the Administrative Service.
It was urged that the merit should be the sole criteria for selection of
the candidates and in that view of the matter, the State cannot be said to have
misconstrued and misinterpreted the judgment of this Court.
Mr. S.S. Javali, learned senior counsel appearing on behalf of the
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Respondent, on the other hand, drew our attention to the prayer made by the
Respondent herein in her application before the Tribunal and submitted that
the order of this Court should be construed in the context thereof. Drawing
our attention to the averments made in the application for review filed by the
Appellant herein, it was contended that therein a similar stand was taken but
this Court having rejected the review application, the Appellant herein
cannot now be permitted to re-agitate the said question once over again.
It is not in dispute that the Respondent herein had been working from
the very beginning in the Revenue Department. The order of this Court
dated 15th March, 1994 as noticed supra should, thus, be construed in the
light of the decision of this Court and the pleadings of the parties.
For the said purpose, we may notice the prayers made by the
Respondent before the Karnataka Administrative Tribunal which are as
under:
"i) Declare by the issue of an appropriate order
or direction as the case may be, the action of
the State Government in denying the
benefits to the applicants flowing from the
decision of the Hon’ble Supreme Court of
India in Civil Appeal Nos. 2270 to 73/87
and connected appeals, as illegal and
discriminatory, with a further declaration
that the applicants are entitled to be
considered for appointment to Group A
Services (Assistant Commissioners). On the
basis of the first select list prepared by the
Karnataka Public Service Commission vide
Notification dated 23.2.1976 published in
the Karnataka Gazette dated 26.2.1976
(Annexure A1) and entitled to all
consequential benefits, in the interest of
justice and equity.
(ii) Issue an appropriate order or direction, as
the case may be, directing the State
Government to pass appropriate orders
appointing the applicants to Group A
services (Assistant Commissioners),
pursuant to the declaration to be granted as
per the above prayer, w.e.f, the dates, the
same has become due with all consequential
benefits, in the interest of justice and equity.
(iii) Pass such orders just and expedient in the
circumstances of the case, including the
aware of cost."
Prayers made in the said original application before the Tribunal must
be construed having regard to the pleadings thereof. We have been taken
through the application filed by the Respondent before the Administrative
Tribunal. No statement far less any claim grounded on legal right was raised
to the effect that she was entitled to be appointed as Assistant Commissioner
from the very inception. Such a plea could not have been taken.
In paragraph 6 of her application, she accepted that her name was
included in the Additional List of Category \026 I Service. In sub-paragraph (e)
of the said paragraph, she moreover accepted that her name had appeared at
Sl. Nos. 26 and 5 respectively in Category \026 II Service (Tahsildars) now
designated as Group ’B’ Service omitting her name from Group ’A’ Service.
In sub-paragraph (g) of paragraph 6 she stated:
"By order dated 30.3.1990, the Hon’ble Supreme
Court of India struck down the government order
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dated 23.4.1976. Thus, with the setting aside of
the Government order dated 23.4.1976, the
applicants also became entitled to be appointed to
Group ’A’ Services on the basis of the first select
list (Annexure A1). The judgment of the Hon’ble
Supreme Court of India also ensures to the benefit
of the applicants and accordingly the applicants
became entitled to be appointed to Group A
Services w.e.f. the respective dates the Candidates
included in the second list to the Annexure B were
appointed with all consequential benefits except an
express benefits denied by the State Government
by order dated 22.5.1990 proceeded to grant
benefits only to the petitioners before the Hon’ble
Supreme Court of India\005"
Yet again, in the Grounds contained in the said application, she
merely contended:
"\005With the setting aside of the directions, even
the deletion of the names of the applicants from
the additional list of Group A services is
automatically held to be illegal and
discriminatory\005"
Furthermore, in sub-paragraph (m) of paragraph 6, she stated:
"The applicants submit that they too are similarly
and equally placed like those who were Appellants
before the Hon’ble Supreme Court, in the matter of
appointment on the basis of first select list
(Annexure-A1)\005"
It is, thus, only in the prayer portion, she prayed for being considered
for appointment to Group ’A’ Service (Assistant Commissioner) without
there being any requisite pleadings therefor. She had, thus, never questioned
the merit position.
The Commission issued a notification on 23.2.1976 showing the
names of the candidates who became eligible to hold the posts of Assistant
Commissioners being Category \026 I service. The name of the Respondent did
not figure therein. Her name did not figure even in the posts of Assistant
Controllers which were also Category \026 I posts. Her name appeared at Sl.
No. 2 in the Additional List of Category \026 I service. It is true that having
regard to Devin Katti (supra), the said List was revised but even on revision
of the list, her name could have been placed only below K.C. Ramamurthy
who got 871 marks as she got 868 marks. Even some candidates belonging
to the Scheduled Castes category as, for example, Shri T. Muktamba got
higher marks than her i.e. 893 marks. It further appears that even in the List
of Commercial Tax Officers, the last candidate therein Shri M. Viswanatha
who was a General Category candidate got 875 marks. Thus, there were
many persons who were above the Respondent both amongst General
Category as also Reserved Category candidates. Upon revision of the List,
She had, thus, been placed at Sl. No. 26 of Category \026 II Service which was
meant for Tahasildars. It is not in dispute that if the name of the Respondent
was to be included in the Assistant Commissioner from the General Merit
Category, then cases of six more candidates, namely, A.C. Suryaprakash, C.
Vasumathi, V. Mohan Kumar, M. Vishwanatha, K.C. Ramamurthy and B.N.
Mahesh, being above her, were also required to be considered. It is,
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furthermore, not in dispute that those who had been offered the post of
Assistant Controller of Accounts in 1993 are currently working as Joint
Controller. Only one person, Shri M.V. Munirathnappa has been promoted
as Additional Controller of State Accounts on 22.5.1997. The merit position
of the candidates, as noticed hereinbefore, had never been questioned and
even now has not been disputed. The Respondent, on her own showing, has
been presently working in Karnataka Administrative Service, Group ’A’,
Super-Selection Post in the scale of pay of Rs. 13820-17220. There are 62
posts in the Selection Grade and 45 posts in the Super-Selection Grade. The
post of Controller is only one whereas the number of posts of Additional
Controller is 9 and that of Joint Controller is 50.
The Respondent herself in her additional affidavit stated:
"That it is directed by this Hon’ble Court on
15.3.1994 "that for the purpose of seniority, the
Appellant shall be placed below the last candidate
appointed in 1976, but she will not be entitled to
any backwages". I submit that the select list of the
1976 Batch in the Administrative Service (Post \026
Karnataka Administrative Service Group ’A’)
comprised 15 candidates. Three of them died,
while one did not join service. The service
particulars and promotion accorded to the
remaining 11 candidates are indicated in the chart
marked herewith as Annexure R-1. I further
submit that the 1976 batch Karnataka
Administrative Service Group ’A’ (Junior Scale)
Officers were promoted to the Karnataka
Administrative Service Group ’A’ (Senior Scale).
Vide Notification dated 2.9.1983, a copy of which
is marked herewith as Annexure R-2, while I was
promoted to Karnataka Administrative Service
Group ’A’ (Senior Scale) in 1997, vide
Notification dated 10.4.1987 the true copy of
which is marked herewith as Annexure R-3."
It is, therefore, evident that it had never been nor could be her claim
that she should be placed in higher grade ignoring the case of persons
similarly situated.
It is true that the Appellant herein filed an application praying for
review of the said order dated 15th March, 1994 contending:
"\005It is respectfully submitted that the Respondent
was only included in the additional list of Category
I in the pre-revised list and was not allocated to
any particular service. The question of
appointment of persons included in the additional
list would arise only after exhausting the
appointment of all the selected candidates in the
main list and as already stated, the Respondent
came to be included in the list of Category II after
the revision taken by the K.P.S.C. as directed by
the State Government at that point of time. It is
also relevant to state here that the Government
took a decision not to operate the Additional List
and accordingly the relevant provision providing
for publication of the Additional List as provided
in Sub-Rule (4) of Rule 11 of the 1966 Rules came
to be deleted as per the Notification No. DPAR 46,
SRR 76 dt. 21.8.76"
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In the order dated 15th March, 1994, this Court noticed that the
Appellant had since been promoted to Class \026 I Post of Assistant
Commissioner. As the Respondent was to be appointed in the said post with
retrospective effect, a direction was issued to create a supernumerary post
therefor as otherwise it was not necessary to issue any such direction.
Furthermore, this Court directed that the Respondent should be placed
below the last candidate appointed in 1976 meaning thereby the same post
which she had been holding at the relevant point of time. She was held not
to be entitled to any back wages therefor.
The judgment of this Court dated 15th March, 1994 must be construed
in the aforementioned backdrop.
A judgment, as is well known, is not to be read as a statute. But, it is
also well-known that the judgment must be construed as if it had been
rendered in accordance with law.
In Ramesh Chand Daga v. Rameshwari Bai [(2005) 4 SCC 772], this
Court held :
"A judgment, as is well known, is not to be read as a
statute. A judgment, it is trite, must be construed upon
reading the same as a whole. For the said purpose the
attendant circumstances may also be taken into
consideration."
[See also Zee Telefilms Ltd. & Another v. Union of India & Others \026
(2005) 4 SCC 649]
In P.S. Sathappan (Dead) By Lrs. v. Andhra Bank Ltd. & Others
[(2004) 11 SCC 672], this Court held :
"The judgment of this Court must be read as a whole
and the ratio therefrom is required to be culled out from
reading the same in its entirety and not only a part of it."
In Gajraj Singh and Others v. State of U.P. and Others [(2001) 5 SCC
762], this Court held:
"\005A doubt arising from reading a judgment of the
Court can be resolved by assuming that the
judgment was delivered consistently with the
provisions of law and therefore a course or
procedure in departure from or not in conformity
with statutory provisions cannot be said to have
been intended or laid down by the Court unless it
has been so stated specifically."
In N. K. Rajgrahia Vs. M/s Mahavir Planatation Ltd. & Ors. JT 2006
(1) SC 70, the Court observed:
"An order of a court of law and, in particular, a
consent order, must be read in its entirety for the
purpose of ascertaining its true intent and purport."
Devin Katti (supra) was not directly applicable to the case of the
Appellant. Therein this Court was concerned with the selection process
which started by a notification dated 23rd May, 1975 which was published on
29th May, 1975 only for the post of Tehsildars whereas the Respondent
herein was selected in terms of the notification dated 28th November, 1974.
This Court in the case of the Respondent proceeded on the basis that her
case was covered by Devin Katti (supra) in all force, only for applying the
ratio that after the selection process had started, her status could not have
been altered by the reservation policy. Her name was not in the First List
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but was in the Additional List.
Service jurisprudence evolved by this Court from time to time
postulates that all persons similarly situated should be treated similarly.
Only because one person has approached the court that would not mean that
persons similarly situated should be treated differently. It is furthermore
well-settled that the question of seniority should be governed by the rules. It
may be true that this Court took notice of the subsequent events, namely,
that in the meantime she had also been promoted as Assistant Commissioner
which was a Category \026 I Post but the direction to create a supernumerary
post to adjust her must be held to have been issued only with a view to
accommodate her therein as otherwise she might have been reverted and not
for the purpose of conferring a benefit to which she was not otherwise
entitled to.
It is furthermore not in dispute that the correct position as regard her
ranking amongst the successful candidates had not been brought to the
notice of this court and if it had been so done, this Court would have found
that she was entitled only to the post of Assistant Controller of Accounts.
It may be true that in the Appellant’s application for review, more or
less similar pleas were raised, but rejected, but, herein the same is not an
issue as we are concerned only with construction of this Court’s order dated
15th March, 1994.
Justice demands that a person should not be allowed to derive any
undue advantage over other employees. The concept of justice is that one
should get what is due to him or her in law. The concept of justice cannot
be stretched so as to cause heart-burning to more meritorious candidates.
Moreover, at the end of the day, the Respondent has got what could be given
to her in law. As of now, she had already been enjoying a higher scale of
pay than what she would have got if she was to join the post of Assistant
Controller. We, therefore, are of the opinion that interest of justice would be
sub-served if she is allowed to continue in her post and direct the Appellant
to consider her seniority in the Administrative Service in terms of the order
of this Court dated 15th March, 1994 that she would be the last in the
seniority list of the appointees in the post of Category \026 I Assistant
Commissioner (Karnataka Administrative Service).
The Appeal is allowed to the aforementioned extent. However, there
shall be no order as to costs.