IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/01/2004
CORAM
THE HON'BLE MR.JUSTICE R.JAYASIMHA BABU
and
THE HON'BLE MR.JUSTICE M.KARPAGAVINAYAGAM
W.P.No.608 of 1999 and W.P.No.635 of 1999
In W.P.No.608 of 1999
1. Union of india,
Chairman, Telecom Commission,
Ministry of Communications,
Sanchar Bhavan,
20, Ashoka Road,
New Delhi 110 001.
2. Asst. Director General (SGT),
Department of Telecommunications,
Ministry of Communications,
Govt. of India, Sanchar Bhavan,
20, Ashoka Road,
New Delhi 110 001. ..Petitioners
-vs-
1. Honble Central Administrative Tribunal
through its Registrar,
Madras Bench,
High Court Buildings,
Chennai-600 104.
2. V.Narayanan
3. J.Rajasekaran
4. S.Sampath
5. C.Mahalingam
6. H.Thilagar Jayasingh
7. K.Ramarathnam
8. S.Valmiki
9. S.Kannappan
10.S.Lakshminarasimhan ..Respondents
In W.P.No.635 of 1999
1. Union of India,
rep. By its Secretary,
Ministry of Communications,
Sanchar Bhavan,
No.20, Ashoka Road, New Delhi-1.
2. The Director-eneral,
Department of Telecommunications,
Sanchar Bhavan,
No.20, Ashoka Road,
New Delhi 110 001. ..Petitioners
-vs-
1. Central Administrative Tribunal,
rep. By its Registrar,
Madras Bench.
2. R.Venkataraman
3. T.Parthasarathy
4. R.muralidharan
5. V.Annamalai
6. V.K.balasubramanian
7. N.Susheela
8. V.Ramakrishnan
9. G.Thyagarajan Samuel
10.K.Venkateswaran
11.S.balakrishnan
12.M.K.Ramabhadran
13.R.Sundaramurthy
14.S.Chandrasekhar ..Respondents
Petitions filed under Art.226 of the Constitution of India, praying
for the issue of writ of certiorari as stated therein.
!For Petitioners
in both W.Ps. : Mr.V.T.Gopalan,
Addl. Solicitor General
assisted by
Mr.Vanathi Srinivasan,
Addl. Central Governemnt
Standing Counsel.
^For RR-2 to 10
in W.P.608/99 : Mr.C.K.Chandrasekar,
for M/s Row and Reddy
For RR-2,3,5,6
and 8 to 14
in W.P.No.635/99 : Mr.V.Bhiman
For RR-4 and 7 : No appearance
:ORDER
(The order of the Court was made by R.JAYASIMHA BABU, J.)
Numerous proceedings in relation to the determination of the seniority
of Junior Engineers, before different Benches of the Central Administrative
Tribunals, various High Courts and, on several occasions, before the Supreme
Court during a period of over 10 to 15 years, with regard to the
interpretation and application of the instructions issued by the Government of
India, Department of Communications, on 28.6.1966, in Appendix I, Para (v),
which paragraph is extracted below, culminated in the decision rendered by a
three Judge Bench of the Supreme Court in the case of Union of India v.
Madras Telephone SC & ST Social Welfare Association (2000) 9 SCC 71, wherein
the Court declared 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 28.6.1966 and in accordance with the statutory Recruitment
Rules read with the appendix attached thereto for promotion to the posts in
Group ‘B’ service. A separate list has to be made in respect of each
recruitment year”.
2. Para (v) referred to in the previous paragraph reads as under:-
“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 qualified in
subsequent examination.”
3. A bench of the Central Administrative Tribunal at Allahabad had,
on an application filed by two Junior Engineers, Paramanand Lal and Brij
Mohan, interpreted this paragraph as requiring the Department to rank all
those who passed the qualifying examination above those who passed the same
examination at a later point of time, without reference to the year in which
they had been recruited. That decision was affirmed by the Allahabad High
Court and a Special Leave Petition against that Judgment was rejected by the
Supreme Court. Thereafter, there were numerous proceedings before various
Benches of the Tribunal, claiming relief similar to the one that had been
granted to Parmanand Lal and Brij Mohan. One such proceeding went up to the
Supreme Court which, in the case of Union of India v. Madras Telephones
Scheduled Castes and Scheduled Tribes Social Welfare Association (1997) 10 SCC
226, in which it was held that “the eligibility list has to be prepared
according to the year of recruitment/appointment and neither according to the
year of passing of the examination nor with reference to the year of
confirmation.”
4. The matter was thereafter brought before a three Judge Bench, as
there was a conflict between the judgment rendered by the two Judge Bench of
the Supreme Court and the law that had been laid down by the Allahabad High
Court against which the Supreme Court had declined to grant Special Leave.
After a comprehensive and in-depth examination of the proceedings that had
gone on prior to t he pronouncement of the judgment, on 26th April, 2000, the
three Judge Bench held that separate list had to be prepared for each year of
recruitment in the feeder category. Within the list so prepared for each
year, persons who passed the eligibility test are to be ranked higher to those
who passed the same test later, even though they may have been ranked seniors
earlier.
5. The Court, however, while laying down the law in those terms, did
not deprive Parmanand Lal and Brij Mohan of the benefit which they had derived
by virtue of the judgment of the Allahabad High Court, which had interpreted
the Rule in a different manner and had directed that Paramanand Lal and Brij
Mohan be treated as seniors even to those who had been recruited in earlier
years, solely by taking the date on which they passed the eligibility test as
the decisive factor for determining seniority.
6. At the end of paragraph 17 of the judgment, the Court made the
following observation:-
“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, the Court, at paragraph 19, allowed the appeal that had
been preferred by Parmanand Lal against his reversion–a reversion which had
been effected after the decision of the Supreme Court in the year 1997–to
which we have already made a reference earlier. The three Judge Bench was of
the view that a benefit which had been granted to Lal, as a result of a
judgment by which the State was bound, could not be taken away by reason of a
judgment pronounced later in other proceedings though that judgment
interpreted the very Rule in a different manner.
7. The respondents before us in these writ petitions, who were
applicants before the Tribunal, contend that the observation of the Court at
the end of paragraph 17, which we have extracted above, enables them to claim
seniority over Parmanand Lal and Brij Mohan, as, admittedly, Lal and Brij
Mohan are juniors to them. They also relied upon the fact that in the year
1992 they had also filed an application before the Madras Bench of the Central
Administrative Tribunal claiming a relief similar to that granted to Parmanand
Lal and Brij Mohan, as they had passed the eligibility test before Lal and
Brij Mohan had. The Tribunal, on that application, had directed that the
petitioners before it be given the benefit similar to that which had been
granted by the Allahabad Bench, whose decision had been affirmed by the
Allahabad High Court.
8. Thereafter, the petitioners before the Tribunal were granted
promotion with effect from the year 1980, some of them having been given
promotion with effect from the year 1981 and their seniority was also fixed
with reference to those years. The respondents before us, being aggrieved by
that, filed a contempt petition which was rejected by the Tribunal observing
that as to whether or not the petitioners have been given the correct ranking
in the seniority list was a matter to be decided in independent proceedings
and not in the contempt petition.
9. The impugned order of the Tribunal is one which was rendered by
the Tribunal on the further application which the respondents before us filed
soon after the dismissal of the contempt application.
10. Learned counsel for these respondents submitted before us
vigorously that they should be accorded the same treatment as Parmanand Lal
and Brij Mohan and that they should be ranked higher to Lal and Brij Mohan,
who were not only their juniors but are also persons who had passed the
eligibility test at a later point of time. It was submitted by counsel that
the principles of res judicata are attracted. In support of that submission,
counsel invited our attention to the decisions of the Supreme Court in the
cases of Supreme Court Employees Welfare Association v. Union of India (1989)
4 SCC 187; Union of India v. Madras Telephones Scheduled Castes and Scheduled
Tribes Social Welfare Association (1997) 10 SCC 226; and Union of India and
others v. Southern Railway Employees Co-operative Stores Workmen Union and
others (1998) 5 SCC 530.
11. The principles of res judicata are not attracted in this case, as
the matter is now squarely governed by the decision of the Supreme Court in
the case of Union of India v. Madras Telephone SC & ST Social Welfare
Association (2000) 9 SCC 71. The Court therein considered the cases of all
persons affected by the application of this rule and carved out an exception
only in favour of certain persons, after having laid down the law and enabled
those persons to retain the benefit if such benefit had been received prior to
the judgment of the three judge Bench.
12. The class which could claim seniority contrary to the law laid
down by the Supreme Court in that case are persons who had received promotion
like Parmanand Lal and Brij Mohan. The implication clearly is that if such
promotion had not been given it could not be done subsequent to the date of
the judgment of the Supreme Court.
13. It is no doubt true, as contended by learned counsel for the
respondents, that the Tribunal had in fact directed the Union to grant to the
petitioners before the Tribunal the same benefits as had been granted to the
petitioners before the Allahabad Bench of the Tribunal, whose decision had
been affirmed by the Allahabad High Court. Subsequent to that ruling, the
seniority given to the petitioners was in fact revised and further promotions
given to them on the basis of that seniority. The reference to ‘benefit’ in
the last sentence of paragraph 17 of the judgment of the Supreme Court is to
be understood as the benefit actually given and is not to be equated to a
direction given by the Tribunal to follow a judgment rendered by the Allahabad
Bench and affirmed the Allahabad High Court. It is the admitted case of the
petitioners before the Tribunal that they had not received any such benefit
although it was their claim that they were entitled to such benefit.
14. After the decision rendered by the three Judge Bench, there is no
scope whatsoever now for the respondents before us to claim a benefit contrary
to the law laid down in that judgment as they had not received such a benefit
prior to that judgment. It is not open to this Court to direct the State to
act contrary to the law laid down by the Supreme Court. Even though the
respondents before us were not parties to that judgment, the law declared by
the Court binds them as well.
15. The respondents before us, therefore, cannot claim seniority
solely on the basis of the year in which they passed the eligibility test
without reference to the year of recruitment of persons who had qualified by
passing the test, but at a later point of time. As held by the two Judge
Bench in the case of Union of India v. Madras Telephones Scheduled Castes and
Scheduled Tribes Social Welfare Association (1997) 10 SCC 226, which judgment
was affirmed by the three Judge Bench later, the year of recruitment is the
relevant year and it is only among those recruited in the same year persons
who passed the qualifying test earlier will rank senior to those who passed
the test later. The seniority acquired by the employees who had entered
service earlier is not in any way affected vis-a-vis those who entered the
service in later years.
16. Although the judgment rendered by the three judge Bench does not
specifically refer to a situation where a person who had entered service
earlier passes the eligibility test years later and before his passing that
eligibility test, persons recruited in later years who had passed the
eligibility test earlier are promoted, it would appear reasonable to take the
view that such a person will necessarily rank junior in the higher cadre as he
would be entering that higher cadre only later, after persons who had entered
service in the lower cadre in a later year had entered that higher cadre by
virtue of having passed the eligibility test earlier and having been selected
to fill a vacancy which was then available.
17. The direction given by the Tribunal in the impugned order
directing the Union to grant notional seniority and monetary benefits to the
petitioners before it by taking the year of their passing the eligibility test
as the criterion for determining seniority cannot be sustained, as that
direction is not in accordance with the law laid down by the Supreme Court in
the case of Union of India v. Madras Telephone SC & ST Social Welfare
Association (2000) 9 SCC 71.
18. We, however, make it clear that we have not dealt with the
seniority properly assignable to the petitioners before the Tribunal in the
light of the principles laid down by the Supreme Court in that judgment,
although it was submitted before us by the learned Additional Solicitor
General that a seniority list has in fact been prepared in accordance with
that judgment and that the seniority that had been assigned to the petitioners
earlier has remained undisturbed even after the new seniority list was drawn
up.
19. The writ petitions are allowed. The impugned order of the
Tribunal is set aside.
To
The Registrar,
Central Administrative Tribunal,
High Court Buildings,
Madras-600 104.
Dev/