CASE NO.: Appeal (civil) 7474-7477 of 2003 PETITIONER: RAMA RAO & ORS RESPONDENT: M.G. MAHESHWARA RAO & ORS DATE OF JUDGMENT: 27/08/2007 BENCH: H.K. SEMA & P.K. BALASUBRAMANYAN JUDGMENT:
J U D G M E N T
[with C.A. No. 7478-7481 of 2003]
P.K. BALASUBRAMANYAN, J.
1. By the judgment under appeals the High Court partly
allowed the writ petition filed before it by the employees in
the ministerial cadre of the Karnataka Administrative
Tribunal. Writ Petition Nos.16143-1646 of 1997 challenged
the decision of the Administrative Tribunal dismissing an
application filed by them before the Tribunal. Feeling
aggrieved by the decision rendered by the High Court in the
writ petitions both sides are before us with these appeals.
Civil Appeal Nos.7474-7477 of 2003 is filed by those
belonging to the Stenographer Cadre and Civil Appeal
Nos.7478-7481 of 2003 filed by the ministerial cadre.
2. For convenience, hereafter, the parties are referred
to as Stenographers and Assistants.
3. The Karnataka Administrative Tribunal was
constituted on 6.10.1986. The Government of Karnataka
sanctioned the cadre strength and framed the Cadre and
Recruitment Rules, 1986. The appointments of
stenographers were made in the year 1988. The Government
published on 23.9.1992 a new set of draft rules. The
stenographers filed objections to the draft rules. On
31.5.1993 the Government published the Recruitment Rules.
Though the stenographers made representations to the
Government, their representations were rejected. Thereupon
they filed application Nos.2250-2252 of 1993 and 2253-2258
of 1998 before the Administrative Tribunal challenging the
prescription of degree and test as qualifications for
promotion to the post of Junior Judgment Writer in the
Rules. It is seen that the assistants or any one that would
be affected from that branch by an adjudication, were not
impleaded in the proceeding. The Administrative Tribunal
allowed the applications and quashed the Rules in part.
Essentially, what the Administrative Tribunal did was to
alter the qualifications provided for promotions in the cadre
of stenographers by doing away with the higher
qualifications prescribed. The striking down of the Rules
was done by a Bench presided over by the Vice-Chairman of
the Administrative Tribunal. Thereafter the vice-chairman
proceeded to promote the stenographers on the basis of the
qualification prescribed by him on the judicial side. The
assistants felt aggrieved by the promotions thus given. They,
therefore, moved application Nos.3585-3592 of 1995 and
other connected applications before the Administrative
Tribunal challenging the decision of the Administrative
Tribunal dated 6.7.1994 as also the promotions given to the
respondents in those applications, the promoted
stenographers. The applications were opposed on various
grounds. By order dated 21.4.1997, the Administrative
Tribunal dismissed the applications. It was challenged by
the Assistants before the High Court in the writ petitions
already referred to. The High Court, by the judgment under
appeal, allowed the writ petitions in part holding that the
Administrative Tribunal had no jurisdiction to alter the
qualifications for promotions as it had done and since
promotions were made on the basis of this unauthorized
interference with the Rules prescribing qualifications for
promotions, the promotions were bad. As a logical follow
up, instead of setting aside all the promotions, the High
Court set aside only the promotions of non-graduate
stenographers and declined to interfere with the promotions
of the graduate stenographers. The non-graduate
stenographers are aggrieved by the setting aside of the
judgment of the Administrative Tribunal and the quashing of
the promotions of non-graduates. The Assistants are
aggrieved by what they call the failure of the High Court to
give effect to its own judgment and in not setting aside the
illegal promotions given to all stenographers including the
graduate stenographers. That is how these sets of appeals
are before us.
4. Logically it would be proper to deal first with the
appeal filed by the stenographers against the judgment of the
High Court. For, if we were to agree with the contentions of
the appellants therein, the judgment of the High Court
setting aside the order of the Administrative Tribunal will
have to be set aside and in that case no further orders would
be required except to restore the order of the Tribunal. Only
if we were to dismiss the appeals filed by the Assistants and
were to uphold the decision of the High Court on the main
aspect, we need consider the grievance of the assistants that
the High Court should have, as a consequence of its own
decision, set aside the promotions of graduate stenographers
as well, since those were illegal promotions.
We will, therefore, first deal with the appeals by the
stenographers.
5. It is argued on behalf of the stenographers that
the High Court was in error in setting aside the order of the
Administrative Tribunal dated 6.7.1994 when the assistants
had not taken any step to get that order reviewed or
modified. It is submitted that only after the decision in the
case of L. Chandra Kumar vs. Union of India and others
1997 (3) SCC 261) that the High Court got jurisdiction to
entertain a proceeding against the decision of the
Administrative Tribunal and when the order was passed on
6.7.1994 by the Administrative Tribunal, only an appeal
could have been filed to the Supreme Court and in that
situation, in the subsequent writ petition, the High Court
was not competent to quash the order of the Administrative
Tribunal dated 6.7.1994. It is also contended that in any
subsequent application filed by the assistants under Section
19 of the Administrative Tribunals Act (for short the Act),
the Administrative Tribunal could not have considered the
correctness or otherwise of the decision it had rendered
earlier and which had become final and consequently the
High Court while entertaining the writ petition challenging
the dismissal of the subsequent application by the
Administrative Tribunal, could not have set aside the order
earlier made on 6.7.1994 on the application filed by the
stenographers. This contention raised, was met by the High
Court by pointing out that even though the assistants belong
to a different cadre, since there was a confluence of the two
streams leading to the promotional posts, the assistants had
locus standi to file an application under Section 19 of the Act
in which, to ventilate their grievances they could canvass the
correctness of the decision earlier rendered on 6.7.1994 by
the Administrative Tribunal. The High Court referred to the
decision in K. Ajit Babu and others vs. Union of India and
others [(1997) Supp 3 S.C.R. 56] to find that the proper
procedure to adopt by persons situated like the Assistants in
this case and who were not made parties to a prior decision
which had effect on their career, was to move an application
under Section 19 of the Act. In that decision, this Court
noticed that even though the judgment of an Administrative
Tribunal may only be a judgment in personam, occasionally,
it could also operate as a judgment in rem and those affected
by it had the right to approach the Tribunal again with an
application under Section 19 of the Act when they are
affected as a consequence of the earlier decision and are
entitled to seek reconsideration of the view taken in the
earlier decision. The High Court, following it, held that the
assistants had the locus standi to move the application
under Section 19 of the Act before the Tribunal and seek
reconsideration of the earlier decision passed by it without
notice to them and to show that the said order required
reconsidered or that it was not a legal or a proper one. We
see no reason not to accept the reasoning adopted by the
High Court. After all, the assistants who were not impleaded
in the earlier proceeding, must have an avenue to ventilate
their grievances. This Court has indicated that that avenue
is an approach to the Tribunal and that was in a case in
which the very same Act was involved. This Court had also
pointed out, what the Administrative Tribunal could do in
such a situation. If this were not the position, the assistants
would be able to say that since they were not parties to the
earlier proceedings, they were not bound by it and they are
entitled to ignore the decision therein and that the said
decision cannot affect them since it would be a decision that
is void in law for non-compliance with the rules of natural
justice. There is, therefore, no grace in the submissions that
the assistants could not have approached the Administrative
Tribunal with their grievance and the Tribunal could not
have consider their grievance or gone back on its earlier
decision. We are in agreement with the approach made by
the High Court and the conclusion arrived at by it and hence
have no hesitation in overruling this contention. The
argument that the jurisdiction of the High Court came to be
recognized only later, cannot change the situation, since
when the High Court entertained the writ petition it had the
jurisdiction to do so and it had jurisdiction also to consider
what was the effect of the earlier order or the proceeding
before it and whether the earlier order was legal and justified
in the context of the decision of this Court in Ajit Babus
case (supra).
6. It is then contended that the Administrative
Tribunal was justified in passing the order dated 6.7.1994
since the qualifications prescribed for promotion were
unreasonable. According to the stenographers, the Rules
clearly provided for double promotion and since the
assistants had not challenged the validity of the rules either
before the Administrative Tribunal or the High Court or in
this Court, the actions taken as a consequence, were also
not open to challenge in the light of the decisions of this
Court in Karam Pal and others vs. Union of India and
others (1985 (2) SCC 457) and Mohan Sing and others vs.
State of Punjab and others (1995 (4) SCC 151).
7. We agree with the High Court that when it passed
the order on 6.7.1994, the Administrative Tribunal had acted
beyond jurisdiction in prescribing qualifications of its own
while striking down what according to it was unreasonable
provisions. First of all, there is nothing unreasonable
prescribing qualifications of promotion as was done in this
case and as rightly found by the High Court. Secondly, even
if the relevant rules were liable to be struck down, it was not
for the Administrative Tribunal to re-enact that Rule as it
thought considered proper. Once that conclusion is reached
and as has been found by the High Court no invalidity could
be found in the relevant rules for promotion, the obvious
consequence would be that all the promotions of the
stenographers became illegal. In fact, the High Court in its
judgment has considered the relevant aspects and has come
to the conclusion that the decision dated 6.7.1994 was
unsustainable. We do not think it necessary to reiterate the
reasons given by the High Court which has also noticed the
decision of this Court in J. Ranga Swami vs. Government
of Andhra Pradesh and others (AIR 1990 SC 535). We
approve of the findings of the High Court.
8. We also find it somewhat unpalatable that the
same vice-chairman, in the absence of the Chairman, sat on
the judicial side, quashed the rule and prescribed his own
qualifications for promotion of stenographers and on the
administrative side implemented that decision and promoted
the stenographers. It would have been better if he had
awaited the appointment of a Chairman and left it to the
Chairman to implement the direction issued by the
Administrative Tribunal earlier. A thing that is to be done
has not only to be done properly but also appear to be done
properly. But this is only incidental and has no relevance to
the question falling for decision except for the contention
that the Vice-Chairman has no power to appoint, with which
we will deal later, if it becomes necessary.
9. Suffice it to say that we agree with the conclusion
of the High Court that the decision dated 6.4.1997 rendered
by the Administrative Tribunal was totally unsustainable and
the question of promotion has to be on the basis of the Rules
as they stood prior to the interference with it by the Tribunal.
10. Thus, we find no merit in the appeals filed by the
stenographers and the cancellation of their promotions on
the basis they did not possess the requisite qualifications for
promotion as per the Rules.
11. We then come to the appeals filed by the
assistants. Their grievance is that the High Court having
found that the order of the Administrative Tribunal dated
6.4.1997 was unsustainable and having found that the
amendments brought to the rules by it were also illegal and
unsustainable, should have followed up that finding by
setting aside the promotions of all the stenographers and
ought to have ordered a fresh consideration of the question
of promotions taking into account both the feeder channels.
We see considerable force in this submission. What the
High Court has done is to try and avert the cancellation of
certain stenographers who had graduate qualification, a
qualification prescribed by the Rules. But having found that
the very order granting promotion, based as it was on a
wrong footing and that required interference in the light of its
decision, the High Court ought not to have shied away from
giving effect to its own conclusion. After all, graduate
stenographers, if they are entitled to promotions as per the
Rules, would secure the promotion by the fresh exercise
undertaken. We have also indicated that the whole method
adopted by the vice-chairman was not proper and the
promotions were made improperly, was an irresistible
conclusion. In the light of all this, we think that the
interests of justice would be sub-served only if the entire
promotions of stenographers made on the basis of the Rules
framed by itself by the Administrative Tribunal on its judicial
side are set aside. To that extent we find substance in the
appeal filed by the assistants.
12. We think that the proper course to adopt is to
undertake a fresh exercise of promoting the officers from
both streams in accordance with the Rules framed in that
regard. But as the High Court held, the stenographers who
had been promoted and whose promotions have now been
cancelled, need not be visited with the penalty of having to
refund the higher salaries and allowances they have received
in the promotional posts. Therefore, even while cancelling all
the promotions and directing a fresh exercise to be
undertaken, we direct that no recovery shall be made from
the salaries paid to the stenographers in regard to the period
they have worked in their promoted posts on the ground that
their promotions have now been quashed.
13. In the result, we dismiss Civil Appeal Nos.7474-
7477 of 2003 and allow the Civil Appeal Nos.7478-7481 of
2003. We substantially affirm the decision of the High Court
but set aside in that part of it by which it declined to set
aside the promotions of graduate stenographers. We direct
the undertaking of a fresh exercise regarding promotions of
those who are qualified in accordance with the Rules by the
concerned as expeditiously as possible. We direct that there
shall be no recovery from the salaries and allowances paid to
the stenographers whose promotions are cancelled by the
High Court and by us while they worked in their promoted
posts. The parties are directed to suffer their respective
costs in this Court.