Full Judgment Text
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CASE NO.:
Appeal (civil) 4339 of 1995
PETITIONER:
Union of India
RESPONDENT:
Madras Telephone SC & ST Social Welfare Association
DATE OF JUDGMENT: 28/09/2006
BENCH:
B.P. SINGH,S.B. SINHA & P.K. BALASUBRAMANYAN
JUDGMENT:
JUDGMENT
O R D E R
IN
I.A. 16 IN CIVIL APPEAL NO. 4339 OF 1995
AND
IN THE MATTER OF :
Promotee Telecom
Engineers Forum & Ors. \005Applicants
Versus
Secretary, Department of
Telecommunications and Others. \005Respondents
B.P. SINGH, J.
This application for clarification has been filed by the
applicants pursuant to the liberty granted to them by order of this
Court dated July 18, 2003 in Petition for Special Leave to Appeal
(Civil) No.9189 of 2003 in Promotee Telecom Engineers Forum &
Ors. Vs. Secretary, Department of Telecommunications & others.
The applicants pray that this Court may be pleased to clarify that
the observations made by this Court in its judgment and order
reported in (2000) 9 SCC 71 Union of India Vs. Madras Telephone
SC & ST Social Welfare Association dated April 26, 2000 protects
the seniority and consequent promotion of persons who had
judgments in their favour from the Central Administrative Tribunal
duly confirmed by this Court which have thus attained finality.
Their seniority and promotion, therefore, cannot be disturbed in
any manner whatsoever. The respondents who have revised the
seniority list on 22nd, 26th and 28th March, 2001 respectively and
purporting to give effect thereto issued the letter dated March 30,
2001, must recognize the finality of the judgments in favour of the
applicants and restore them to their original seniority.
To appreciate the controversy it is necessary to refer to the
background in which this question has arisen.
The applicants are/were members of the Telegraph
Engineering Service Class II. Before coming into force of 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, the promotion from the post of
erstwhile Engineering Supervisor Telecom (re-designated as Junior
Engineer) to the post of Assistant Engineer was made in
accordance with the instructions contained in paragraph 206 of
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Post and Telegraph Manual, Vol. IV. These instructions were
executive instructions which governed the field in the absence of
statutory rules. In accordance with the aforesaid executive
instructions contained in the Manual promotion to Class II was
made according to the principle of seniority-cum-fitness. Those
who passed the qualifying examination earlier ranked senior as a
group to those who passed the examination on subsequent
occasions, i.e. officials who passed the examination held in the
year 1956 ranked en block senior to those who passed in 1957.
Their seniority inter se, however, was determined according to
their seniority in the cadre of Engineering Supervisors. However,
with the coming into force of the Recruitment Rules, 1966 w.e.f.
June 15, 1966, the method of determining seniority was changed.
It was provided that the Engineering Supervisors must complete 5
years of service to be eligible for appearing at the departmental
qualifying examination. The same requirement existed earlier as
well, but under para (v) of Appendix 1 of Recruitment Rules, the
eligibility list of candidates for consideration of the Departmental
Promotion Committee was to be prepared in accordance with the
instructions as may be issued by the Government from time to
time. Accordingly, the Government of India, Department of
Communication issued instructions dated June 28, 1966
prescribing the procedure for the preparation of eligibility list of
the officers for being placed before the Departmental Promotion
Committee. The instructions required the preparation of a separate
list for each year of recruitment. Para (v) of the instructions
provided that all officials of a particular year of recruitment/
appointment, who had qualified in the examination, would rank en-
block senior to those officials of the same year of recruitment/
appointment, who qualified in subsequent examination. It would
thus appear that in the matter of promotion the emphasis shifted
from the year of passing the examination to the year of
recruitment/ appointment of the candidate concerned.
In the year 1981 one Shri Parmanand Lal (1966 batch) and
Brij Mohan (1965 batch), both of whom qualified in the qualifying
examination held in 1974, filed two writ petitions complaining of
their placement in the eligibility list below the last man who passed
the qualifying examination in 1975. The department contended
that the eligibility list had been arranged on the basis of seniority,
based on the year of recruitment and ignoring the year of passing
the qualifying departmental examination, as required by the
Recruitment Promotion Rules of 1966. The Lucknow Bench of
Allahabad High Court considered the submissions urged before it
in the light of the Recruitment Rules of 1966 as also the Rules of
1981 and para 206 of the P & T Manual and concluded that those
who qualified in the departmental examination earlier were entitled
to be promoted prior to those who qualified later, irrespective of
the year of their initial recruitment. It was held that para 206 of the
Manual was not in conflict with either the Rules of 1966 or 1981,
but was supplemental to those Rules. Relief was accordingly
granted to the writ petitioners based on the interpretation of the
Rules and para 206 of the P & T Manual.
Petitions for Special Leave to Appeal were preferred by the
Union of India challenging the aforesaid decision of the Allahabad
High Court which were numbered as Special Leave Petition Nos.
3384 \026 3386 of 1986. By Order of April 8, 1986 this Court
dismissed the special leave petitions observing as follows:
"Special leave petition is dismissed on merits. 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".
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It is the case of the applicants that following the judgment of
the Allahabad High Court several petitions were allowed by the
Principal Bench, Central Administrative Tribunal seeking identical
relief. The Principal Bench by a detailed order of June 7, 1991
allowed the applications and issued directions for re-fixation of
seniority, keeping in view the relevant recruitment rules and para
206 of the Manual. The Order of the Principal Bench of the
Central Administrative Tribunal dated June 7, 1991 was
challenged before this Court both by the Union of India and Junior
Telecommunication Officers Association (India) representing the
case of some of the aggrieved officers. The Special Leave Petition
Nos.19716 \026 19722 of 1991 were dismissed on January 6, 1992.
While dismissing the special leave petitions this Court observed:-
"These special leave petitions are directed against
the judgment of the Central Administrative
Tribunal, Principal Bench, Delhi dated June 7,
1991. The Principal Bench has followed the
judgment of the Allahabad High Court in Writ
Petition Nos.2739 and 3652 of 1981 decided on
February 20, 1985. SLP (C ) Nos. 3384-86 of 1986
against the judgment of the Allahabad High Court
have already been dismissed by this Court on April
8, 1986. We see no grounds to interfere. Special
Leave petitions are dismissed".
Subsequently, the same questions were again agitated before
this Court in 1993 Supp (4) SCC 693 Junior Telecom Officers
Forum and Others Vs. Union of India and Others. This Court
while dismissing the writ petition before it observed:-
"Though learned counsel for the parties have
referred to some judgments on the questions of res
judicata, constructive res judicata and the binding
nature of a precedent, we do not think it is
necessary to refer to any of those judgments as in
the facts and circumstances of this case, and from
what we have noticed above, we are satisfied that
the issues which the petitioners now wish to raise
had been agitated directly and substantially not
only by JTOA, which was espousing their cause in
the earlier litigation right up to this Court, but also
by the Union of India. The order made by this
Court in SLP (C ) Nos.3384-86 of 1986 interfering
with the judgment of the Allahabad High Court to
a limited extent is an order made on the merits of
the case as is quite apparent from the expressions
used in that order and is a binding precedent. The
issues were again raised and agitated by the Union
of India as well as JTOA in SLP (C ) Nos.19716-
22 of 1991 against the judgment of Principal
Bench of CAT dated June 7, 1991 unsuccessfully.
Those judgments have settled the controversy and
have become final and binding in respect of the
questions debated therein and the issues settled
thereby and as was observed by a Constitution
Bench of this Court in Makhanlal Waza Vs. State
of J & K, the Union of India and its officers are
bound to follow the same even if the members of
the Forum or a majority of the engineers were not
individually parties in the case before the
Allahabad High Court. Since, the issues now
raised have been agitated twice over, it is not
permissible for the petitioners to once again
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reagitate the matter by coming now under the
’cloak’ of a Forum. The preliminary objection,
therefore, must succeed and is upheld. The writ
petition is accordingly held not maintainable and
dismissed".
The applicants contend that following the judgment of the
Allahabad High Court and the Supreme Court, the Benches of the
Central Administrative Tribunal decided a large number of cases.
In some of the cases appeals were preferred by the Union of India
before this Court which were rejected by this Court. The
applicants have referred to the judgment of this Court in 1994 Supp
(2) SCC 222 Telecommunication Engineering Service Association
(India) and Anr. Vs. Union of India and Anr.; wherein in
substance the view of the Allahabad High Court was approved by
this Court by dismissal of the special leave petitions. The Tribunal
in that case had held that the decision of the Allahabad Bench in
the case of Parmanand Lal and Brij Mohan and the judgments of
the Tribunal following the said decision lay down good law and
constitute good precedents to be followed in similar cases. The
Tribunal accordingly rejected the contentions of the appellants to
the contrary and further held that having urged before the Supreme
Court their various contentions, and their SLPs having been
dismissed, they could not agitate the matter before the Tribunal.
This Court observed :-
"So far as the first point is concerned, it appears
that the interventionists filed parallel proceedings
through Junior Telecom Officers’ Forum v. Union
of India and this Court (J.S.Verma and Anand, JJ.)
in an elaborate judgment took the same view as
that of the Allahabad High Court noticed by the
Principal Bench of the Tribunal in the aforesaid
case of Parmanand Lal and Brij Mohan which has
become final and has been upheld by this Court on
merits. It is thus not necessary to dwell on the first
question decided by the Principal Bench any
further".
It would thus appear that this Court upheld the view of the
Allahabad High Court in the case of Parmanand Lal and Brij
Mohan. This view was upheld by this Court by dismissing the
special leave petitions against the said judgment. The same view
was reiterated by this Court in 1993 Supp (4) SCC 693 Junior
Telecom Officers Forum and Ors. Vs. Union of India & Ors. and
1994 Supp (2) SCC 222 Telecommunication Engineering Service
Association (India) and Anr. Vs. Union of India and Anr..
It appears that the Madras Telephone SC & ST Social
Welfare Association had filed a writ petition before the Madras
High Court with a prayer that the eligibility list must be prepared
by determining the seniority on the basis of confirmation as Junior
Engineer. That list should form the basis for promotion to Class II
Service. The writ petition stood transferred to the Central
Administrative Tribunal and the Tribunal by its judgment dated
December 31, 1986 held that the year of recruitment for the
purpose of seniority is extraneous and irrelevant and accordingly
directed that the eligibility list be arranged according to the year of
passing the qualifying examination. As 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 challenged before this Court in
Civil Appeal No.4339 of 1995 and the judgment of this Court is
reported in (1997) 10 SCC 226 Union of India Vs. Madras
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Telephone SC & ST Social Welfare Association; This Court held :
"From the aforesaid clause read with instructions,
it is clear that the eligibility lists have to be
prepared according to the year of recruitment/
appointment. The respondent’s case, before the
Tribunal, however, was that the said lists should be
prepared not with reference to the year of
recruitment/ appointment but with reference to the
year of confirmation. The Tribunal neither
accepted their statement nor did it uphold the
Department’s case but directed that these lists
should be prepared on the basis of the year of the
passing of the Departmental Qualifying
Examination and not on the basis of the year of
recruitment/ appointment. In our opinion what the
Tribunal has done really amounts to rewriting the
rule which should not have been done by it. The
appeal is accordingly allowed. The order of the
Tribunal is set aside. For the same reasons, the
order dismissing the review filed by the Union of
India, by the Tribunal, is also set aside. No costs".
In Civil Appeal No.4339 of 1995, the notice of this Court
was not drawn to the earlier judgments of this Court, wherein the
Allahabad High Court view had been approved namely, the order
of this Court dismissing the special leave petition in Parmanand
Lal and Brij Mohan case, and the judgments reported in 1993 Supp
(4) SCC 693 Junior Telecom Officers Forum and Others Vs.
Union of India and Ors. and 1994 Supp (2) SCC 222
Telecommunication Engineering Service Association (India) and
Anr. Vs. Union of India and Anr. The judgment of this Court does
not notice the judgments aforesaid.
In view of the earlier judgments of this Court and the later
judgment in Civil Appeal No.4339 of 1995, which apparently took
a contrary view, the Union of India found difficulty in
implementing the order of this Court and, therefore, it filed an
application for clarification which came to be disposed of by this
Court along with other applications, petitions and civil appeals, by
a common judgment reported in (2000) 9 SCC 71 Union of India
Vs. Mdadras Telephone SC & ST Social Welfare Association.
Shorn of unnecessary details this Court took the view that the
judgment of this Court in Civil Appeal No.4339 of 1995 reported
in (1997) 10 SCC 226 laid down the correct law. It did not approve
the view of the Allahabad High Court observing that once the
statutory recruitment rules came into force and the procedure was
prescribed under the said Rules for preparation of eligibility list of
officers for promotion to the Engineering Service Class II by
Notification dated June 28, 1966, it is that procedure which has to
be adopted, and the earlier administrative instructions contained in
para 206 of the P & T Manual cannot be adhere to. It observed
that the contrary conclusion of the Allahabad High Court was
undoubtedly incorrect. However, it made a pertinent observation
with which we are concerned in the instant application. While
upholding the correctness of the law as declared in 1997 (10) SCC
226, it was clarified as follows:-
"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, will
not suffer and their promotion already made will not be
affected by this judgment of ours".
By the same judgment this Court also disposed of the appeal
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preferred by Parmanand Lal which was directed against the Order
of Central Administrative Tribunal dated April 11, 1997.
Parmanand Lal had approached the Tribunal challenging the order
of reversion because of judgments of different Tribunals and of
this Court. This Court observed that though the correctness of the
view in (1997) 10 SCC 226 had been upheld, 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. That judgment having attained finality and Parmanand Lal
having received the benefit of the said judgment and having been
promoted, could not have been reverted because of some later
judgments and directions given either by the Tribunals or by this
Court. It accordingly, quashed the order of reversion and also
clarified that the seniority of Parmanand Lal in the cadre of
Assistant Engineer, fixed on the basis of the directions of
Allahabad High Court, after dismissal of the special leave petition
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 applicants claim that their cases are also similar and in
fact identical to that of Parmanand Lal and Brij Mohan. In their
cases as well, the High Court or the CAT have rendered judgments
in their favour pursuant to which they have already been promoted
on the basis of their seniority determined in accordance with the
principles laid down by the Allahabad High Court. Thus, they are
covered by the observation earlier quoted in this order wherein it
has been clarified that persons who have already got the benefit
like Parmanand Lal and Brij Mohan by virtue of the judgment in
their favour will not suffer, and their promotion already made will
not be affected by that judgment.
On behalf of the Union of India three main objections have
been raised. In the first instance, it is submitted that this Court
should not entertain an application for clarification three and a half
years after the judgment of this Court dated April 26, 2000.
Secondly, it is contended that the applicants are seeking
clarification from this Court to the effect that though a part of the
seniority list should be prepared in accordance with paragraph 206
of the P & T Manual, the rest of it be prepared in accordance with
the 1996 Rules. Since the larger Bench held that the Statutory
Rules of 1966 will supersede the administrative instructions
contained in the Manual, there is no need to undertake this exercise
as it would result in unnecessary complications. Lastly, an
objection has also been raised on the ground that in the case of Shri
Parmanand Lal this Court had protected his seniority as well as
promotion but in the instant case only the promotion has been
protected and not the seniority.
So far as the last submission is concerned, we consider the
submission to be hyper technical and does not deserve serious
consideration. If the promotions have been protected, it is only on
the basis of seniority determined by the concerned authority in
accordance with the principles laid down in the earlier judgments.
So far as the question of delay is concerned, the applicants
have explained that after the judgment of this Court, they have not
been sitting idle. They have referred to the various proceedings
taken by them before this Court, before the Central Administrative
Tribunal, New Delhi and thereafter before the High Court. In fact,
while disposing of their writ petition, the Delhi High Court in its
Order of December 16, 2002 observed that since the issue involved
interpretation of the judgment of this Court in (2000) 9 SCC 71
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(supra) the petitioners were free to approach this Court seeking
clarification. The applicants, thereafter filed a Special Leave
Petition No.9189 of 2003 which was withdrawn by the petitioners
with liberty to seek clarification of the judgment and order of this
Court. We are, therefore, satisfied that this application cannot be
rejected on the ground of delay.
The question then arises as to whether the applicants can
claim the protection of their seniority and consequent promotion
on the basis of observations and the clarification contained in the
judgment of this Court reported in (2000) 9 SCC 71. Having
considered all aspects of the matter we are satisfied that those
whose cases stand on the same footing as that of Parmanand Lal
cannot now be adversely affected by re-determination of their
seniority to their disadvantage relying on the later judgment of this
Court in C.A. No. 4339 of 1995 reported in (1997) 10 SCC 226
(supra) as affirmed by this Court in its judgment reported in (2000)
9 SCC 71 (supra).
We, therefore, direct that such of the applicants whose
seniority had been determined by the competent authority, and who
had been given benefit of seniority and promotion pursuant to the
orders passed by Courts or Tribunals following the principles laid
down by the Allahabad High Court and approved by this Court,
which orders have since attained finality, cannot be reverted with
retrospective effect. The determination of their seniority and the
consequent promotion having attained finality, the principles laid
down in later judgments will not adversely affect their cases.
This Court has clearly clarified the position in its aforesaid
judgment. The observations made by this Court while disposing of
the appeal of Parmanand Lal are also pertinent. This Court clearly
laid down the principle that the seniority fixed on the basis of the
directions of this Court which had attained finality is not liable to
be altered by virtue of a different interpretation being given for
fixation of seniority by different benches of Tribunal.
Consequently, the promotions already effected on the basis of
seniority determined in accordance with the principles laid down in
the judgment of the Allahabad High Court cannot be altered.
Having regard to the above observations and clarification we
have no doubt that such of the applicants whose claim to seniority
and consequent promotion on the basis of the principles laid down
in the Allahabad High Court’s judgment in Parmanand Lal’s case
have been upheld or recognized by Court or Tribunal by judgment
and order which have attained finality will not be adversely
affected by the contrary view now taken in the judgment reported
in 1997 (10) SCC 226. Since the rights of such applicants were
determined in a duly constituted proceeding, which determination
has attained finality, a subsequent judgment of a Court or Tribunal
taking a contrary view will not adversely affect the applicants in
whose cases the orders have attained finality. We order
accordingly.
Before parting with this judgment we may observe that we
have not laid down any principle or law having universal
application. We have only clarified and given effect to an earlier
judgment of this Court rendered in an extraordinary situation.