JUDGMENT
Bhaskar Bhattacharya, J.
1. These two writ applications under Article 226/227 of the Constitution of India were heard analogously as both these applications were directed against the selfsame order dated September 15, 2006 passed by the Central Administrative Tribunal, Calcutta Bench, in O.A. No. 271 of 2006 thereby allowing an application under Section 19 of the Administrative Tribunal Act (hereinafter referred to as the Act) filed by Shri A.K. Malhotra, one of the respondents before us (hereinafter referred to as “Malhotra”) by directing the Union of India to refix the date of appointment of one Ranjit Khosla, the writ-petitioner in one of these applications, (hereinafter called “Khosla”) in terms of the Railway Boards letter dated 10th April, 1970.
2. Being dissatisfied, these two writ-applications, one at the instance of Khosla who was a respondent in the proceedings before the Tribunal and other, at the instance of the Union of India, the employer, who was also a respondent therein, have been filed challenging the order of the Tribunal.
3. Malhotra filed the application under Section 19 of the Act thereby praying for the following relief:
(a) to pass an appropriate order directing upon the respondents to assign the appropriate seniority to the applicant as per Classified List of the Gazetted Establishment of Mechanical Department published in the year 2000. Followed this list, the applicant’s seniority position should remain at 08 positions above that of Shri R. Khosla.
(b) to pass an appropriate order directing upon the respondents to assign the correct relative seniority position of the applicant, vis-a-vis, the respondent No. 3 in terms of the Railway Board’s Circular dated 10-4-1970 as well as Judgment and order passed by the Hon’ble CAT, Allahabad dated 26-4-2002 in O.A. No. 489 of 1989.
(c) to pass an appropriate order directing upon the respondents to consider the representations submitted by the applicant dated 20-10-2005 and 19-12-2005 in respect of assigning of correct seniority position to the applicant.
4. The case made out by Malhotra in the application under Section 19 of the Act may be summed up thus:
(i) Malhotra was selected by the U.P.S.C. for appointment through the Indian Railway Service Mechanical Engineer Officers’ Examination (Direct Recruit), 1973. On being qualified, he was appointed to the post of AME (Probationer) with effect from 21st October, 1974. During the course of his employment, he got several promotions and at the time of presentation of the application before the Tribunal was working as C.P.O., Eastern Railway, Headquarters, Calcutta.
(ii) According to the Rules, for the direct recruitment to the Indian Railway Service of the Mechanical Engineers Group ‘A’, two methods are applied. Fifty percent of the vacancies are filled up through Combined Engineering Services Examination for Graduate Engineers and the rest fifty percent, through the Special Class Railway Apprentice (“SCRA”) examination. An appointee recruited as SCRA is required to undergo practical and theoretical training for a period of four years at the Indian Railway Institute of Mechanical and Electrical Engineering, Jamalpur and those apprentices are under the obligation to pass either Part-I and Part-II of CEL (London) or Sections A and B of the AMIE (India) Examination within the said period of four years. In addition to that, those apprentices should also pass the examination conducted by the said Institute at Jamalpur.
(iii) After passing of those examinations, the apprentices are appointed as Probationers in the Indian Railway Service of Mechanical Engineers (IRSME). In other words, the clearance of all the papers of sections A and B of the AMIE (India) or Part I and Part-II of CEL (London) is mandatory for appointment in the IRSME.
(iv) The Ministry of Railway (Railway Board) issued instruction in April, 1970 regarding the date of appointment as probationer of the apprentices who are unable to pass the aforesaid examinations within the period of four years and according to the said instruction dated April 10, 1970, such apprentices would get another extended year for passing those examinations and in default, their appointment would be liable to be terminated.
(v) Khosla was appointed as Special Class Railway Apprentice on 13th January, 1970, on the basis of his selection in the SCRA examination of 1969. According to the Rules, it was mandatory for him to complete the requisite examinations within four years i.e. within January 12, 1974. However, he could not pass the examinations in full within those four years and was granted one-year extension and had cleared the examinations in 1975 beyond the extended period of one year i.e. after five years two months. Malhotra, however, passed the requisite examinations within four years of his appointment as a probationer.
(vi) In the classified list of Gazetted Establishment of Indian Railways, published in the 2000, Malhotra was placed above Khosla on the ground that he passed the examination within the first four years, whereas the Khosla, even though a senior, having been appointed in earlier batch, could only pass the examination in full in the year 1975. Khosla was placed above one Shri G.N. Asthana and below one Shri Girish Kumar and was placed at the 8th position below Malhotra in seniority. Malhotra came to know from the classified list of Gazetted Establishment of Indian Railways published in the year 2005 that Khosla’s position was elevated above one Shri Kaushal Kishore and below Shri H.C. Joshi and in fact, jumped 19th position above in the seniority and thereby became senior to Malhotra although he was earlier shown as junior to him.
(vii) According to Malhotra, the upgradation of the position of Khosla above him was contrary to the Railway Board’s instruction dated 10th April, 1970 and his sole grievance was that since Khosla could not pass the requisite examinations within the first four year of his probationary period and could only complete his examination in March 1975, even after the extended period of one year, whereas Malhotra having passed the requisite examinations in full earlier and within four years, he should have figured as senior to Khosla as was reflected in the gradation list published in the year 2000.
(viii) It appeared that Khosla filed a case before the Principal Bench of the Tribunal being O.A. No. 945 of 1994 claiming that his seniority was to be reckoned from the date of completion of four years of service irrespective of the fact that he could not pass the examinations within that period and his contention was that in the case of some similarly placed persons, for instance, one Shri P. Bahadur, the Railway Authority granted the benefit of seniority on completion of four years of service notwithstanding the fact that he did not pass the requisite examinations in full within that period and in fact, was successful in those examinations long thereafter.
(ix) In the said O.A. before the Principal Bench, Malhotra was, however, not impleaded as party even though, his seniority has been adversely affected by the decision passed in the said proceedings. The Principal Bench by order dated 14th August, 1999 allowed the application of Khosla and held that the Railway Authority could not have discriminated and accordingly, directed that the seniority of Khosla should be fixed on completion of four years’ probation irrespective of his passing the examinations within the said period as was done in respect of other similarly placed officials. The decision of the Tribunal was carried before the Delhi High Court in CWP No. 2384/2000 and the High Court by order dated December 14, 2000 did not interfere with the decision of the Principal Bench of the Tribunal and pursuant to the said decision, the Railway Authorities refixed the seniority of Khosla by issuing a notification dated 12th April, 2001 by which Khosla was placed at Serial No. 67 thereby superseding Malhotra.
(x) According to Malhotra, he was not aware of such decision passed in the case initiated before the Principal Bench of the Tribunal but he came to know from the gradation list published in the year 2005 that he was placed below Khosla. Hence the application.
5. The employer contested the case by filing reply in which it stated that pursuant to the decision of the Principal Bench, as confirmed by the Hon’ble Delhi High Court, it had revised the seniority of Khosla and therefore, Malhotra could not challenge the same before the Tribunal at Kolkata. It. was also stated that the employer had also complied with the decision of Allahabad Bench of the Tribunal in accordance with the Circular dated 10th April, 1970 in a different matter.
6. Khosla also filed written reply. He had taken a preliminary objection that the application was barred by limitation because his seniority was revised in the year 2001 whereas the application was filed in 2006; in addition to that, he also took the plea that his seniority having been fixed in terms of the direction of the Principal Bench of the Tribunal and been approved by the Hon’ble Delhi High Court, the Calcutta Bench of the Tribunal had no jurisdiction to interfere with the same. Khosla further submitted that he passed section A and B examinations in November 1973 and winter 1974 respectively which will be reflected from the certificate, dated 29th July, 1975. His contention was that his case had been misunderstood and in fact, he passed the examinations within the stipulated period of four years and therefore, his seniority had been rightly fixed by the decision of the Principal Bench. His further contention was that he was recruited in the earlier batch and as such, Malhotra could not claim seniority over him in any circumstances.
7. The learned Tribunal below on consideration of the materials on record overruled all the objections taken by Khosla and came to the conclusion that Malhotra having come to know of the change of seniority from the gradation list published in 2005, the application was not barred by limitation and that the order passed on the basis of the application filed before the Principal Bench was not binding upon Malhotra as he was not made party therein. The Tribunal similarly concluded that the fact that the order of the Principal Bench was affirmed by the Delhi High Court was inconsequential as Malhotra was not party to the said proceedings. Ultimately, after going through the materials on record the Tribunal held that Khosla could not pass through the examinations within the extended period of five years and therefore, the seniority of Khosla could not be upgraded. In other words, according to the Tribunal, the decision of the Principal Bench in this regard on the application filed by Khosla was erroneous and consequently, the Tribunal passed the necessary direction for rectification of the gradation list by relying upon a subsequent decision passed by the Allahabad Bench of the Tribunal in similar circumstance.
8. Being dissatisfied, the present two writ-applications have been filed, one at the instance of Khosla and the other, by the Union of India.
9. Mr. Gupta, the learned senior advocate appearing on behalf of Khosla, has, before entering into the merit of the dispute, taken a preliminary point as regards the maintainability of the application under Section 19 of the Act before the Calcutta Bench of the Tribunal. Mr. Gupta contends that his client having been conferred the benefit of upgradation of his seniority by virtue of an order passed by the Principal Bench of the selfsame Tribunal and such order having been affirmed by a Division Bench of the Delhi High Court, a Co-ordinate Additional Bench of the Tribunal at Kolkata was not entitled to reopen the very same question and frustrate the order of the Principal Bench which had attained finality. Mr. Gupta submits that appropriate remedy of Malhotra was to move before the Delhi High Court for recall of the order by which the said Court passed direction upon the common employer to readjust the seniority of his client in the gradation list.
10. Mr. Gupta further contends that for the purpose of refixation of the position of his client in the gradation list, the presence of Malhotra was unnecessary in the litigation and therefore, his client did not make him a party before the Principal Bench of the Tribunal at New Delhi.
11. Mr. Gupta lastly contends that even if it is assumed for the sake of argument that Malhotra was in any way prejudiced by the order of the Principal Bench, since the said order of the principal Bench of the Tribunal had been affirmed by the Delhi High Court, he ought to have challenged the order of the Principal Bench of the Tribunal by filing a separate writ-application before Delhi High Court or could also pray for recall of the order passed by the Delhi High Court which affirmed the order of the Principal Bench. Mr. Gupta, therefore, prays for setting aside the order of the Tribunal simply on the ground mentioned above.
12. The learned advocate appearing on behalf of the Union of India in the other writ application has adopted the previously mentioned submission of Mr. Gupta.
13. Mr. Mitra, the learned senior counsel appearing on behalf of Malhotra has, however, opposed the aforesaid contentions advanced by Mr. Gupta and has contended that whenever a question arises as to the fixation of the position of an employee in a common gradation list, the other co-employees, who are going to be affected by the claim of the applicant/employee, should be made parties to the proceedings. In other words, Mr. Mitra contends that Khosla was admittedly placed below his client till the year 2000 but by virtue of the order of the Principal Bench of the Tribunal, his place was upgraded and was positioned above his client without giving any opportunity of hearing to his client and therefore, his client is not bound by the order of the Principal Bench since affirmed by Delhi High Court and in such a situation, his client is entitled to maintain a separate application in accordance with the provision contained in Section 19 of the Act.
14. Mr. Mitra contends that it is a settled position of law that any order passed in a judicial proceeding is not binding upon a person unless he is made party therein and in such circumstances, there is no bar in filing fresh proceedings for declaration that the previous order was not binding upon the applicant.
15. Mr. Mitra further contends that the provision contained in Section 19 of the Act has given a legal right in favour of his client to challenge any decision of the employer and accordingly, his client asserted such legal right by filing an application under Section 19 of the Act before the Tribunal. Such right, according to Mr. Mitra, cannot be taken away by the mere existence of an order pased in a proceeding where his client was not made party. Mr. Mitra, therefore, prays for overruling the preliminary point taken by Mr. Gupta and prays for entering into the merit.
16. We have, however, decided to deal with the preliminary point taken by Mr. Gupta before entering into the merit of the dispute.
17. After hearing the learned Counsel for the parties and after going through the materials on record we do not dispute for a moment the general proposition of law that if by virtue of a decree passed in a civil suit, the right of a third party is afflicted, such a third party has a right to maintain a separate suit for declaration that the decree passed in the earlier proceeding was not binding upon him. This is because of the provision contained in Section 35 of the Specific Relief Act, which explicitly promulgates that any declaration given by a Court as to any legal character of any person or as to any right of such person in any property is binding only upon the parties to the proceedings. Notwithstanding such provision, however, a party instead of filing a separate suit can also straightway prefer an appeal against the decree alleging that he was a necessary party to such proceedings and that such decree infringes his legal right, of course, after taking leave of the Appellate Court, (see: Bar Council of Maharashtra v. M.V. Davolkar ). However, a separate suit for declaration that the previous decree affecting one’s right in the property was not binding upon one can be filed only before the initiation of the execution case for enforcing the decree passed in the earlier suit and if the earlier decree is already put into execution, the aggrieved person has even then the remedy of filing application in the execution case under Order 21 Rule 97 of the Code of Civil Procedure for adjudication of the independent right of the third party to the decree in the property, (see: Ashan Debt v. Phulwasi Debi and Ors. reported in AIR 2004 SC 511).
18. However, the aforesaid general principle relating to the independent right of a third party to a decree passed in a civil suit cannot have any application to a case where in a writ jurisdiction in exercise of power under Article 226 of the Constitution of India, a High Court has passed a mandamus directing a party to do something which infringes the right of a third party. If such an order is passed, the person whose right is going to be affected by the order of the High Court should approach either Supreme Court against the said order by taking recourse to Article 136 of the Constitution of India complaining that he was a necessary party to the proceedings or can also apply for review before the selfsame High Court for variation of the earlier order alleging that he was a necessary party. (see: State of Punjab and Ors. v. Satnam Katu reported (2006)1 Service Cases Today 1 at paragraph 19). At this juncture, it will not be out of place to refer to a decision of a Bench of five Judges of the Supreme Court in the case of Shivdeo Singh and Ors. v. State of Punjab and Ors. reported in AIR 1963 SC 1909, where the Apex Court approved the proposition of law that if an order passed in the writ jurisdiction prejudicially affects the interest of somebody not party to the proceedings, he can legitimately approach the High Court for review of the order after giving an opportunity of hearing to him. The position will be the same, if any of the Benches of the Tribunal passes any direction in terms of the provisions contained in Administrative Tribunal Act, 1985 impairing the interest of any person not a party before it which has since been affirmed by the High Court in exercise of power conferred under Article 226 of the Constitution of India.
19. In this connection, Mr Mitra strongly relied upon a decision of the Supreme Court in the case of K. Ajit Babu and Ors. v. Union of India and Ors. reported in 1997 SCC (L&S) 1520 where the Supreme Court held that a third party to a decision of Central Administrative Tribunal, but adversely affected thereby, is required to file a separate application under Section 19 of the Act and not an application for review before the same Tribunal. The Bench consisting of two Judges of the Supreme Court, however, pointed out that proper course for dealing with such application would be that if the concerned Bench proposed to differ from the view taken in the earlier decision of a co-ordinate Bench, it should refer the matter to the Principal Bench for constitution of a Larger Bench. Even if, we apply the said principle to the fact of the present case, the moment the Calcutta Bench contemplated a view deviating from the one taken by the Principal Bench, it should have referred the matter to the Principal Bench for formation of a Larger Bench for resolving the said dispute. However, such a course is not available to the latter Bench of the Tribunal if the previous order of the former Bench had merged with the order of the High Court because in such a case, even the Larger Bench of the Tribunal cannot undo the direction of the High Court. In the case of K. Ajit Bahu and Ors. (supra), the Supreme Count had no occasion to consider a situation where the decision of the earlier Bench was by that time affirmed by a High Court. In this connection, it will be profitable to refer to the following observations of the Supreme Court in the case of Aswani Kumar Singh v. U.P. Public Service Commission regarding the scope of applicability a decision as a precedent:
Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid’s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret Judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Morton 1951 AC 737 at p. 761, Lord Mac Dermot observed:
The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.
20. Moreover, in a recent decision, (Sankar Deb Acharya v. Biswanath Chakraborty reported in 2006 AIR SCW 5644) the Apex Court had the occasion to consider almost a similar situation like the one we are concerned. A Bench consisting of three Judges made the following observation:
We are surprised to notice, that aggrieved party (respondents herein) again approached the tribunal in O.A. No. 636 of 2001 and the Tribunal by its order dated 10-4-2002 set aside the Government order dated 28-3-2001 which was passed, as already noticed, pursuant to the writ of mandamus issued by the Division Bench of the High Court. The Tribunal was of the view that affected persons have not been heard and the matter be remanded back to the Government for fresh consideration. We are unable to subscribe to the view expressed by the Tribunal. Firstly, since the order of 28-3-2001 was issued pursuant to a mandamus issued by the Division Bench of the High Court, the Tribunal should not have interfered. Secondly, before the High Court the interest of the present respondents were adequately represented and there was no question of passing an order without hearing the parties who had been adversely affected.
(Emphasis supplied)
21. Therefore, the said decision in the case of K. Ajit Babu and Ors. (supra) relied upon by Mr. Mitra cannot have any application to the facts of the present case where the doctrine of merger comes into play.
22. We, consequently, find substance in the preliminary objection raised by Mr. Gupta that the earlier decision of the Principal Bench having already been merged with the decision of the Delhi High Court, the Calcutta Bench of the Tribunal could not entertain the application at the instance of the third party and the only remedy available to Malhotra was either to move the Delhi High Court for recall of the earlier order or to file appropriate application under Article 136 of the Constitution of India against the order of the Delhi High Court which affirmed the order of the Principal Bench.
23. We fully appreciate the submission of Mr. Mitra that a legal right conferred upon his client to move the Tribunal with the grievance against his employer cannot be taken away if the case falls within the purview of Section 14 of the Administrative Tribunal Act, 1985. However, if the employer takes any decision not of its own but being compelled by the direction of a High Court in exercise of power conferred under Article 226 of the Constitution of India, the Act has not invested the Tribunal with the authority to question the propriety of the decision of the Division Bench of the High Court inasmuch as the Constitution of India has authorised the High Courts to exercise power of superintendence over the Tribunals created under the Act. (see; L. Chandrakumar v. Union of India ).
24. In such a situation, the aggrieved person either must move the High Court for review of its decision, which is the real cause for apparently bringing the case within the scope of Section 14 of the Act, or should approach the Apex Court under Article 136 of the Constitution of India against the order of High Court.
25. The moment we hold that subsequent application is not maintainable at the instance of a third party who is aggrieved by the order of his employer passed under compulsion pursuant to a decision of a High Court or a Supreme Court, no purpose would be served by entering into the merit of the question as to what will be the actual date of entry of Khosla in the service in these writ applications as our finding will be the one of a Court having no jurisdiction to entertain such dispute. We, at this stage, therefore, cannot take any decision in the matter as the Union of India is bound by the order of the High Court at Delhi to prepare the gradation list by fixing the position of Khosla at a particular place and at the same time, we have no authority to declare that the employer should ignore the decision of the Principal Bench of the Tribunal since affirmed by the Delhi High Court and to revert Khosla to his original position.
26. We, therefore, set aside the order passed by the Tribunal on the aforementioned ground alone. We make it clear that we have not gone into the merit of the dispute and the quashing of the order of the Tribunal by us, will not stand in the way of Malhotra in seeking the appropriate remedy before the appropriate forum in accordance with law.
In the facts and circumstances, there will be, however, no order as to costs.
Surinder Singh Nijjar, C.J.
27. I agree.