Full Judgment Text
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
MADRAS TELE.S.C. & S.T. SOCIAL WELFARE ASSOCIATION.
DATE OF JUDGMENT: 26/04/2000
BENCH:
G.B.Pattanaik, R.P.Sethi, Shivaraj V. Patil
JUDGMENT:
PATTANAIK,J.
I.A.2/99.
This is an application by Union of India, seeking
clarifications, being of the opinion that the Judgment of
this Court in the case of Union of India vs. P.N.Lal and
Ors., in S.L.P. Nos. 3384-86/86 runs contrary to the
Judgment of this Court dated 13.2.97 in the case of Union of
India vs. Madras Telephone SC/ST Social Welfare Association
in C.A. No. 4339 of 1995. By this application, the
department also seeks further directions as to the manner in
which judgment of the Central Administrative Tribunal,
Hyderabad dated 5.1.96 as well as the judgment of the High
Court of Andhra Pradesh dated 28.10.97, passed in Writ
Petition No. 23522/97 would be implemented, since according
to the department, the directions contained therein run
contrary to the principle enunciated in the judgment of this
Court in P.N. Lals case. The Union of India has filed an
application for condonation of delay in filing application
for directions, which has been numbered as I.A. No. 3/99.
After the disposal of C.A.No. 4339/95 by order dated
13.2.97, as the directions given therein had not been
implemented, the Madras Telephone SC/ST Social Welfare
Association filed a contempt Petition, which was registered
as Contempt Petition(Civil) No. 121/1999. When that
application had been listed before a Bench of two learned
Judges of this Court on 16.11.99, an application for
intervention had been filed by a group of officers and it
was contended by the interveners that the judgment of this
Court in C.A. No. 4339/95 has been rendered without
noticing four earlier judgments, each one rendered by two
Judge Bench. The said interveners had also filed an
application for recalling the order dated 13.2.97 passed in
C.A. No. 4339/95, on the ground that they were not party
to the said appeal. In view of the conflict in different
judgments of this Court, rendered by two Honble Judges in
each of the matters, the Bench hearing the matter on
16.11.99, passed an order that the matters be placed before
a Bench of three Hon’ble Judges and that is how this group
of matters have been placed before us.
I.A. No.10/2000. In I.A. No.2/99, filed by the
Union of India for clarifications and directions, as already
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stated, an application for intervention had been filed by
four persons, claiming themselves to be vitally affected, if
the judgment of this Court in C.A.No. 4339/95 is not
implemented and the said Intervention Application has been
numbered as I.A. No.10 of 2000.
I.A. No.9/99. One Shri Parmanand Lal, who has been
permitted to intervene in Contempt Petition No. 121/99, has
filed an application, seeking permission to file additional
documents and said application has been numbered as I.A.
No.9/1999.
I.A. No.11/2000. An application has been filed by
the Union of India for impleading P.N.Lal, Brij Mohan, who
were the respondents in SLP Nos. 9063-64/92, 19716-22/91,
16698/92 and 5398/96 as well as several other persons to be
impleaded as parties, which has been registered as I.A.No.
11/2000. This application has been filed because of the
observations made by this Court, while hearing this matter
on 20th of January, 2000, wherein the Court had observed
that the consequence of divergent views has put the Union of
India in quandary and it is, therefore necessary to consider
and decide which of the two divergent views is the correct
one. The Court also further observed that all parties whose
interest would be affected, are before the Court, but we
direct the Union of India specifically, to implead Parmanand
Lal in its interim application( I.A. 2/99.)
I.A. No 12/2000 Parmanand Lal, himself also had filed
an application for intervention and directions, who is the
beneficiary of the order of this Court dated 8.4.86, when
the Special Leave Petition Nos. 3384-86 of 1986 filed by
the Union of India was dismissed, necessarily, thereby
upholding the order of Allhabad High Court passed in Writ
Petition No. 2739 of 1981, filed by said Parmanand Lal.
The said I.A. has been registered as I.A. No12/2000. C.A.
Nos. 6485-86 of 1998 is by Parmanand Lal, directed against
the order of Central Administrative Tribunal, Principal
Bench, New Delhi, passed in R.A.No. 170/97 on 18.9.97, as
well as the Order of the said Tribunal in O.A. No. 2646 of
1993 dated 11.4.97. In the aforesaid Civil Appeal
Nos.6485-86 of 1998, said Parmanand Lal, filed an
application for interim relief, which has been registered as
I.A. Nos. 4 and 5 of 1999.
I.A.No. 3/99, filed by the Union of India for
condoning the delay stands allowed. I.A. No. 10/2000,
filed for intervention by four persons in I.A. No.2/99
stands allowed. I.A. No. 9/99, filed by Parmanand Lal to
intervene in the Contempt Petition No.121//99 stands
allowed. I.A. No. 11/2000, filed by the Union of India
for impleadment of Parmanand Lal and Brij Mohan stands
allowed. I.A. No..12/2000, filed by Parmanand himself for
intervention also stands allowed.
I.A. No. 2/99, filed by the Union of India for
clarification, Contempt Petition(C) No. 121/99, filed by
the Madras Telephone SC/ST Social Welfare Association, C.A.
Nos. 6485-86 of 1998 filed against the order of the Central
Administrative Tribunal, Principal Bench, New Delhi and I.A.
Nos. 4 & 5 of 1999, filed in C.A. Nos. 6485-86/98 for
interim relief would stand disposed of by this common
judgment.
The controversy between the parties centers round a
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question, as to how the selection list has to be drawn up
for the purpose of promotion to the post of Assistant
Engineer from the post of Junior Engineer in
Tele-communication circles. It may be stated that prior to
1966, the Junior Engineers were being designated as
Engineering Supervisors Telecom/Wireless Supervisors
Telecom. Before the Telegraph Engineering Service Class II
Recruitment Rules, 1966 framed in exercise of powers
conferred by the proviso to Article 309 of the Constitution
of India (hereinafter referred to as the recruitment
rules), came into force the promotion from the post of
erstwhile Engineering Supervisor Telecom (re-designated as
Junior Engineer) to the post of Assistant Engineer was being
made in accordance with the instructions contained in
paragraph 206 of the Post and Telegraph Manual Volume IV.
The said instructions were obviously the executive
instructions, which governed the field in the absence of
statutory rules. The aforesaid instructions contained in
para 206 of the P& T Manual are extracted herein below in
extenso for better appreciation of the point of controversy:
206. All Junior Engineers recruited after the 1st
January, 1929, under the new system after serving for 5
years in Engineering Branch may be permitted to appear at
the Departmental Qualifying Examination, which will be held
from time to time in the subjects enumerated below, provided
they have a good record. This qualifying examination is
intended to test the general ability of Engineering
Supervisors and their knowledge in the latest developments
in Telegraphy and Telephony. A pass in this examination is
an essential condition for promotion in Telegraph
Engineering and Wireless service, Class II. 2. Promotion
to the T.E. & W.S. Class II, will be made according to the
principle of seniority-cum-fitness but the Engineering
Supervisors who pass the qualifying examination earlier will
rank senior as a group to those who pass the examination on
subsequent occasions i.e. officials who passed the
examination held in 1956 will rank as en bloc senior to
those who passed in 1957. Their seniority inter se will,
however, be according to their seniority in the cadre of
Engineering Supervisors. 3. This examination will be
conducted in the following three subjects:- (i)Telegraph and
Telephony (Without books) 100 marks
(ii)Line Construction and Transmission(Without books)
100 marks (iii)Code Rules(With books) 100 marks
One question paper will be set in each subject. In
order to qualify in the examination the officials must
obtain 10% of marks in each subject. 4. The detailed
syllabus for the examination is indicated in Appendix No.
15A.
Under the aforesaid instructions all Junior Engineers,
on completion of five years of service in Engineering
Branch, were being permitted to appear at the departmental
qualifying examination, provided they maintain a good
service record. The qualifying examination was intended to
test the general ability of the Engineering Supervisors and
pass in the said examination was essential pre-condition for
promotion to the service in Class II. The promotion to
service in Class II was being made on the principle of
seniority- cum-fitness. It also further stipulates that
those of the supervisors who pass the qualifying examination
earlier, would rank en bloc senior to those who pass the
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examination later but inter se seniority of supervisors, who
pass the examination in one group was being determined
according to their seniority in the cadre of Engineering
Supervisor. The recruitment rules came into force w.e.f.
15th of June, 1966, on being notified. Rule 5 of the
Recruitment Rules provides the method of recruitment to the
service, the period of probation and the lower grades from
which the promotion would be made, as indicated in columns 5
to 13 of the Schedule and Appendix I and Appendix II to the
rules. The service has been defined in Rule 2(e) to mean
the Telegraph Engineering Service (Class II). Under
Appendix I, recruitment to the service is required to be
made entirely by promotion on the basis of selection of
officials, indicated in paragraph (ii) of the said Appendix,
through a qualifying departmental examination. It further
stipulates that an approved list has to be prepared by a
duly constituted Departmental Promotion Committee by
selection from amongst the officials, who qualify in the
departmental examination. Para (ii) of Appendix I
enumerates the category of officials who are eligible for
promotion to the service in Class II. Under Paragraph (iii)
of Appendix I, the departmental qualifying examination for
promotion to the Service in Class II is normally held at
least once in a calendar year in the manner prescribed in
Appendix III. The Engineering Supervisors must complete
five years of service, so as to be eligible for appearing at
the departmental qualifying examination. Under Paragraph
(v) of said Appendix I, the eligibility list of candidates
for consideration of Departmental Promotion Committee is to
be prepared in accordance with the instructions as may be
used by the Government from time to time. In accordance
with the provisions contained in paragraph (v) of Appendix
I, the Government of India, Department of Communication,
issued instructions dated 28th of June, 1966, indicating the
procedure for preparation of eligibility list of the
officers for being placed before the Departmental Promotion
Committee. Under the said instructions, separate list is
required to be prepared for each year of recruitment.
Paragraph (v) of the aforesaid instructions is rather
important for our purpose, which is extracted herein below
in extenso:
(v) All officials of a particular year of
recruitment/appointment, who have qualified in an earlier
examination, would rank en bloc senior to those officials of
the same year of recruitment/appointment who qualify in
subsequent examination.
The aforesaid instructions unequivocally indicates
that from amongst the Engineering Supervisors, recruited in
a particular year of recruitment, those who pass the
departmental examination for promotion earlier would rank en
bloc senior to those, who pass the said qualifying
examination at a later point of time. It may be stated that
under paragraph (i) of the aforesaid instructions, it was
incumbent for the authorities to prepare separate list for
each year of recruitment of the persons from the feeder
category. The recruitment rules were amended in the year
1987 and under the amended provisions, the criteria for
selection is on the basis of seniority-cum-fitness. Thus,
seniority plays an important role in the matter of promotion
to the post of Class II Engineering Service. The Madras
Telephone SC/ST Social Welfare Association had filed a writ
petition in the High Court of Madras with the prayer that
the eligibility list be prepared by determining the
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seniority on the basis of confirmation as Junior Engineer
and that list should form the basis for promotion to Class
II service. The aforesaid writ petition stood transferred
to the Central Administrative Tribunal under Section 29 of
the Administrative Tribunal Act, 1985 and was finally
disposed of by the Tribunal by Judgment dated 31.12.1986.
The Tribunal came to the conclusion that the year of
recruitment for the purpose of seniority is extraneous and
irrelevant and it accordingly directed that the eligibility
list be arranged according to the year of passing the
qualifying examination and amongst those, who pass the
examination in the same year, the list should be according
to their merit, as seen from the marks obtained in the
examination. The Judgment of the Tribunal was assailed by
the Union of India in the Supreme Court and upon leave being
granted, the same was registered as Civil Appeal No. 4339
of 1995. This Court came to the conclusion that the
directions given by the Tribunal really amounts to
re-writing the rules, which could not have been done by it.
On consideration of the relevant provisions of the
Recruitment Rules and the instructions, issued thereunder,
the Court came to the conclusion that the eligibility list
has to be prepared according to the year of recruitment.
This Court did not accept the stand of the Association that
the list should be prepared with reference to the year of
confirmation. When the Court disposed of the aforesaid
Civil Appeal, the Judgment of the Allahabad High Court in
the writ petition, filed by P.N.Lal and Brij Mohan (Writ
Petition Nos. 2739/81 and 3652/81) had not been brought to
the notice of the Court and against the said Judgment of
Allahabad High Court, the Union of India had come to the
Supreme Court in Special Leave Petition No. 3384-86 of 1986
and that Special Leave Petition was dismissed on 8.4.86.
While dismissing the Special Leave Petition, the Court
passed the following order:
...............In the facts and circumstances of the
present case, we are not inclined to interfere with the
judgment of the High Court except to a limited
extent..................
The Allahabad High Court considered the grievances of
the applicant before him viz. Parmanand Lal and Brij Mohan
on the basis of instructions contained in paragraph 206 of
the P & T Manual and the provisions of the Recruitment Rules
did not come up for consideration. The Court ultimately had
directed that the two petitioners before it viz. Parmanand
Lal and Brij Mohan should be promoted with effect from the
date prior to a date of promotion of any person, who passed
the departmental examination, subsequent to them and adjust
their seniority accordingly. When this Court dismissed the
Special Leave Petition filed by the Union of India, though
it was stated that the special leave petition is dismissed
on merits, but in the very next sentence the Court had
indicated that in the facts and circumstances of the case,
the Court was not inclined to interfere with the judgment of
the High Court except to a limited extent. It is,
therefore, obvious that while dismissing the special leave
petition, the Court had not examined the provisions of the
recruitment rules and the instructions issued thereunder,
providing the procedure for promotion to the service in
Class II and, therefore, there was no reason for the Union
of India to think that what has been stated in Civil Appeal
No. 4339 of 1995, runs contrary to the judgment of the
Allahabad High Court, which stood affirmed by dismissal of
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the special leave petition Nos. 3384-86 of 1986 on
8.4.1986. The Principal Bench of the Central Administrative
Tribunal, New Delhi, disposed of O.A.No. 2667 of 1991 and
the Review Application filed before it as Review Application
No. 195 of 1992 was disposed of by the Tribunal on 29th of
June, 1992, following the views of the Allahabad High Court
in interpreting paragraph 206 of the Post & Telegraphs
Manual and against the said judgment, the Tele-
communication Engineering Service Association had preferred
Special Leave Petition No. 16698 of 1992 and batch, which
stood disposed of by judgment dated 13th of May, 1994. This
Court came to hold that the Tribunal was right in following
the Judgment of the Allahabad High Court in Parmanands case
which has become final by disposal of the Union Governments
SLP against the same, which deals with the interpretation of
paragraph 206 of the P & T Manual. This Court also took
notice of another judgment of the Court dated 18th of
September, 1992 passed in T.P.(Civil) No. 417 of 1992 in
Writ Petition (Civil) No. 460 of 1992 along with SLP.
(Civil) Nos. 9063-64 of 1992. In the judgment of this
Court dated 18th of September, 1992 in T.P.(Civil) No. 417
of 1992 in Writ Petition(Civil) No. 460 of 1992 in the case
of Junior Telecom Officers Forum & Ors. Vs. Union of India
& Ors., this Court was of the view that the controversy
relates to the mode of promotion to the Telecom Engineering
Service Group B as well as fixation of seniority of the
Junior Telecom Officers/Assistant Engineers in that category
and the preparation of eligibility or the approved list for
the said purpose by the department in accordance with the
recruitment rules and paragraph 206 of the P & T Manual
Volume IV. The Court no doubt has noticed the arguments
advanced by placing reliance on the provisions of the
recruitment rules of 1966 but it ultimately came to the
conclusion that the views of the Allahabad High Court has
reached a finality because of the dismissal of the SLP
against the same and as such the eligibility list is
required to be prepared in accordance with paragraph 206 of
the P & T Manual. The aforesaid conclusion is undoubtedly
incorrect, as the Judgment of the Allahabad High Court
proceeded by interpreting paragraph 206 of the P & T Manual,
which was an administrative instruction which governed the
field until promulgation of the recruitment rules framed
under proviso to Article 309 of the Constitution. Once the
statutory recruitment rules have come into force and
procedure has also been prescribed under the said rules for
preparation of the eligibility list of officers for
promotion to the Engineering service Class II by
notification dated 28th of June, 1966, it is that procedure
which has to be adopted and the earlier administrative
instruction contained in paragraph 206 of the P & T Manual
cannot be adhered to. Under the recruitment rules read with
Schedule appended thereto and Appendix I to the rules, the
recruitment to the service in Class II has to be made
entirely by promotion on the basis of selection through a
qualifying departmental examination. The Departmental
Promotion Committee is duty bound to prepare an approved
list by selection from amongst the officials who qualify in
the departmental examination. In view of the amendment to
the rules made on 4th of February, 1987, the criteria for
selection is seniority-cum-fitness. In accordance with the
prescribed procedure for preparation of eligibility list,
notified by the Government on the 28th of June, 1966, the
Departmental Promotion Committee has to prepare separate
lists for each year of recruitment in the feeder category.
In other words, if in 1958, the Departmental Promotion
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committee is recommending people for promotion to Class II,
then all the eligible candidates who had passed the
departmental examination and who had been recruited in 1950,
are to be listed separately from those officers who also
have qualified departmental examination and were recruited
in the year 1951 and so on and so forth. Once, separate
lists are prepared by the Departmental Promotion Committee
of the officers recruited in different recruitment years in
the feeder category and the criteria for promotion being
seniority-cum-fitness, then it would create no problem in
promoting the officers concerned. As to the inter se
position of the officials belonging to the same year of
recruitment in the feeder category, the procedure to be
adopted has been indicated in paragraph (iii) of the
Memorandum dated 28th of June, 1966. In this view of the
matter, we are of the considered opinion that the Judgment
of this Court in Civil Appeal No. 4339 of 1995 has rightly
been decided in interpreting the relevant provisions of the
recruitment rules read with the procedure prescribed under
the Memorandum dated 28th of June, 1966. We however, make
it clear that the persons who have already got the benefit
like Parmanand Lal and Brij Mohan by virtue of the judgments
in their favour, they will not suffer and their promotion
already made will not be affected by this judgment of ours.
Since Departmental Authorities had not implemented the
decisions of this Court in Civil Appeal No. 4339 of 1995
for which a Contempt Petition had been filed, having regard
to the circumstances under which the Departmental
Authorities entertained bona fide difficulties, it would not
be proper to proceed against the authorities under the
contempt and the contempt proceedings accordingly are
dropped. We would, however direct the Departmental
Authorities to proceed in accordance with law and in
accordance with the observations made by us in this Judgment
and promotions may be made within a period of six months
from the date of this judgment.
CIVIL APPEAL Nos. 6485-86 of 1998: These appeals by
Parmanand Lal is directed against the order of the Central
Administrative Tribunal dated 11th of April, 1997. Said
Parmanand Lal had approached the Tribunal, challenging the
order of reversion dated 4.2.93 and the basis of said
reversion was refixation of the seniority in the rank of
Engineering Supervisor, because of some judgments of
different Tribunals and because of some Judgments of this
Court. We have considered this question in great detail and
we have held that the question of seniority in the feeder
cadre of Junior Engineers, when persons belonging to the
same recruitment year are recommended, has to be decided in
accordance with paragraph (iii) of the Memorandum dated 28th
of June, 1966 and in accordance with the statutory
recruitment rules read with Appendix attached thereto for
promotion to the posts in Group B service, separate list
has to be made in respect of each recruitment year. We have
also held that after promulgation of the recruitment rules,
the administrative instructions contained in paragraph 206
of the P & T Manual, will have no force. We have also
indicated that the promotions already effected pursuant to
the Judgment of the Allahabad High Court, which was upheld
by this Court by dismissing the special leave petition filed
by the Union of India will not be altered in any manner.
This being the position and the Judgment of the Allahabad
High Court in favour of Parmanand Lal having attained
finality, he having received the benefit of the said
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Judgment and having been promoted, could not have been
reverted because of some latter Judgments and directions
given either by the Tribunals or by this Court. On the
admitted position that the applicant Parmanand was reverted
by order dated 4.2.93 because of certain directions given by
some other Tribunals, deciding the principle of re-fixation
of seniority and it is on that basis an order of reversion
was passed, we have no hesitation to come to the conclusion
that the order of reversion is untenable and unjustified on
the grounds on which the said reversion has been passed, and
as such cannot be sustained in law. We make it clear that
the seniority of Parmanand in the cadre of Junior Engineer,
fixed on the basis of the directions of Allahabad High
Court, after dismissal of the SLP against the same by this
Court is not liable to be altered by virtue of a different
interpretation being given for fixation of seniority by
different Benches of the Central Administrative Tribunal.
The impugned order passed by the Central Administrative
Tribunal is erroneous and we quash the same and allow the
civil appeals filed by the said Parmanand Lal. After
closure of the arguments, an application has been filed on
18th of April, 2000 by Promotee Telecom Engineers Forum, New
Delhi through its President, seeking intervention in the
matter, has prayed for an opportunity of being heard. It is
not possible to re-hear the matter again. The prayer
accordingly stands rejected. All these appeals and
applications are disposed of accordingly. There will be no
order as to costs.