Central Administrative Tribunal - Madras
R Sai Subramanian vs Ut Of Pondicherry on 12 March, 2024
1 0.A.1207/2016 ~ CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH 0A/310/01207/2016 Dated day, the /aleday of March, Two Thousand Twenty Four CORAM : HON'BLE MR .MANISH GARG, Member .(3) & HON'BLE MR.VARUN SINDHU KUL KAUMUDI, MEMBER(A) 1. R.Sai Subramanian, Executive Engineer DRDA (on deputation), Puducherry. 2. R.Sowrirajan, S/o. A. Rajavelu, Executive Engineer, PWO, Plot No.32, ist Cross Street, Devaki Nagar, Muthialpet, Pondicherry - 605 003. 3. G.Vijayan, Executive Engineer, Indira Gandhi Medical College and Research Institute, (on deputation} Kathirkaamam Pondicherry. ... Applicants By Advocate M/s.J.Chandran Vs 1, Govt. of Puducherry, Rep. by its Chief Secretary, Chief Secretariat, Puducherry. 2, Secretary to Govt. (Works), Puducherry Government, Puducherry, 3. Chief Engineer, Public Works Department, Puducherry Government, Puducherry. ... Respondents By Advocate Mr.R.Syed Mustafa 2 0.A.1207/2016 ORDER
(Pronounced by Hon'ble Shri Manish Garg, Judicial Member) In the instant OA, the applicant seeks the following relief:-
" Declare that the impugned order issued by the ist Respondent in No.271/PW-1/Ai/2016 dated 29.06.2016 as unconstitutional and i/legal."
2 At the outset, the learned counsel for the respondents stated that the matter pertains to the batch of OAs 1206/2016 & OA 1208/2016, which were already disposed of by this Tribunal, vide order, dated 10.01.2024.
3. Learned counsel for the applicant does not dispute the said proposition.
4, Having gone through the records of the case and the order passed by this Tribunal in OA 1206/2016 & batch, we find that there is a striking similarity between the facts of the present case and those of OA 1206/2016 & batch.
5. For the sake of brevity, the said order, dated 10.01.2024, in OA 1206/2016 & batch, is reproduced hereunder:-
"The applicants have filed the present OAs under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"Relief sought in O.A. No 1206 of 2016 :
(i} To call for the records relating to order No. 271/PW1-A1/2016, dated 29.06.2016 and order No. 271/PW1-A1/2016, dated 29. 06.2016 both passed by the 4"" Respondent and to quash the same.
(ii) To direct the Respondents to promote the 1 Applicant to the post of Assistant Engineer w.e.f 08.03.1997, 2? Applicant to the post of Assistant Engineer w.e.f 07.06.2002 and the 3 Applicant to the post of Assistant Engineer w.e.f 07.05.2003 in accordance with the judgement laid down by the Hon'ble Supreme Court in Suresh Nathan case -- Il with arrears of pay and all other consequential benefits;
(iii) To award costs, and pass such further and other orders as may be deemed fit and proper and thus render justice."
Relief sought in O.A. No. 1208 of 2016:
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(i) To call for the records relating to order No. 271/PW1-A1/2016, dated 29.06.2016 and order No. 271/PW1-A1/2016, dated 29.06.2016 both passed by the 4"" Respondent and to quash the same.
{ii} To direct the Respondents to promote the 1° Applicant to the post of Assistant Engineer w.e.f 03.10.2012, 2™ Applicant to the post of Assistant Engineer w.e.f 03.10.2012 in accordance with the judgement laid down by the Hon'ble Supreme Court in Suresh Nathan case -- ff with arrears of pay and all other consequential benefits;
(iii) Te award costs, and pass such further and other orders as may be deemed fit and proper and thus render justice,"
Relief sought in O.A. No. 1249 of 2018:
(i) To declare that the Review DPC -- i! held by the Respondents which met on 11.04.2016, 18.04.2016, 12.05.2016 and on subsequent dates for reviewing the proceedings of the DPC / promotions for the various years as null and void and violative of the judgment of the Hon'ble Supreme Court in N.Suresh Nathan case -- fl and to direct the official Respondents to convene a Review DPC afresh in accordance with the judgment of the Hon'ble Supreme Court in N.Suresh Nathan case -- Il in its letter and spirit;
(ii) To call for the records relating to order No. 271/PW1-A1/2016, dated 29.06.2016 and order No. 271/PW1-A1/2016, dated 29.06.2016, order No. 271/PW1 -- Al /2016, dated 01.08.2016, order No. 1-4/PW- 1/A1/2016 both passed by the 4" Respondent and to quash the same.
(iii) To award costs, and pass such further and other orders as may be deemed fit and proper and thus render justice."
2. Since the issue involved in the matter is one and the same, alf the three OAs are heard together and disposed of by a common order.
3. The brief facts of the case, as stated by the applicants, are as follows:
All the Applicants have done Degree in Civil engineering and initially joined Public Works Department of Puducherry as Junior Engineers. The Private Respondents have joined service initially as Junior Engineers with a Diploma in Engineering and, subsequently, acquired Degree in Engineering. All the applicants have earned promotions to the higher posts of Assistant Engineer and Executive Engineer on various dates and the respective tables, showing the dates of promotion, have been filed.
3.1 The issue here being promotion to the post of Assistant Engineer, the recruitment rules for the post of Assistant Engineer are given below :
5. Whether Selection post or Non Selection post : Selection 7, Educational and other qualification required jor direct recruits equivalent. : Essential 4 0.A.1207/2016 Degree in Civil Engineering of a recognized university or Diploma in Civil Engineering jrom a recognized institution or equivalent with about 3 years professional experience.
(Qualifications relaxable at Commission's discretion in case of candidates otherwise well qualified).
10. Method of recruitment either By Promotion failing which by by direct recruitment or by transfer on deputation-80% deputation/transfer Direct recruitment-20% percentage of vacancies to be filled by various methods :
3.2 Several of the Junior Engineers who are diploma holders, subsequently acquired Degree in Engineering on various dates and became eligible for consideration for promotion as against the 50% Degree Quota. As per the Applicants, on 06.12.1968, the UPSC gave its advice that the services of Junior Engineers who qualified as graduates while in service should be counted from the date they passed the Degree or equivalent examination and the Government of Puducherry has followed this advice of the UPSC.
Aggrieved by the same, several of the Junior Engineers, who were diploma holders when they entered service and who subsequently acquired degree in Civil Engineering, filed OA No.552 of 1989 before this Tribunal seeking a direction that the Diploma Holders, who subsequently acquired a degree, should be promoted as against the quota reserved for Junior Engineers with a Degree with 3 years of service and that, while considering them as against this quota, without insisting on a further period of 3 years of service after completion of Degree. OA No.552 of 1989 was allowed by order, dated 09.01.1990, in favour of the Diploma Holders who have subsequently acquired degree, directing that the Junior Engineers who were diploma holders at the time of entry, but subsequently acquired degree qualification, should be considered for promotion as against the quota reserved for degree holders taking due note of their total length of service rendered in the grade of Junior Engineer, without insisting on a further service of three years after acquiring the degree. The order, dated 09.01.1990, in OA No.552 of 1989 was challenged by N. Suresh Nathan and others , who were Degree Holders at the time of entering into service in the post of Junior Engineer before the Hon'ble Supreme Court in Civil Appeal No.4542 of 1991. This case turned out to be Suresh Nathan -- L, reported in AIR 1992 SC 564, holding that the period of 3 years service in the grade required for the Degree Holders must be 3 years service in the Grade as a Degree Holder and, therefore, the period of 3 years can commence only from the date of obtaining the degree and not earlier and that the interpretation of Rule 11 was in conformity with the past practice followed consistently by the Government. The relevant portion of Suresh Nathan - I is extracted below :
5, In our opinion, the contentions of the appellants degree- holders that the rules must be construed to mean that the three years' service in the grade of a degree-holder for the purpose of Rule 11 is three years from the date of obtaining the degree is quite tenable and commends to us being in conformity with the 5 0.A.1207/2016 past practice followed consistently. It has also been so understood by all concerned till the raising of the present controversy recently by the respondents, The Tribunal was, therefore not justified in taking the contrary view and unsettling the settled practice in the department.
6. Consequently, the appeal is allowed. The impugned order of the Tribunal is set aside resulting in the dismissal of respondents' application made in the Tribunal. The Department will now consider the question of promotion in accordance with this decision. No costs, 3.3 In pursuance of the judgment in Suresh Nathan - I, the Government of Puducherry granted promotion to the post of Assistant Engineer in the case of N.Suresh Nathan and few other Degree Holders on 08.03.1997. The Diploma Holders being aggrieved challenged the promotion of the Degree Holders in OA No.359 of 1997, The Original Application was dismissed in favour of the Degree Holders, The Diploma Holders, who subsequently acquired degree and who were aggrieved by the order of the Tribunal in OA No 359 of 1997, filed Writ Petition No.11236 of 2000 before the Madras High Court, challenging the order, dated 27.08.1999, in OA No.359 of 1997. The Division Bench of the Madras High Court, vide order, dated 23.06.2003, quashed and set aside the order of the Tribunal in OA No 359 of 1997 and allowed the Writ Petition in favour of the Junior Engineers with Diploma who had subsequently acquired Degree. The relevant portion of the judgment of the Madras High Court is extracted below ;:
18. It is seen that in the present case a fresh selection process was started in the year 1996 and the respondent 2 to 8 have been selected on the footing that they had longer service after their graduation, The past services of the petitioners as in the cadre of Junior engineers as diplomna holders before they become degree holders has not been considered. This has been done on a wrong interpretation of the decision of the Supreme Court in the case of N. Suresh Nathan and another Vs Union of India and others reported in A.ILR 1992 SC 564, 20, The learned counsel for the contesting respondents also raised a contention that in view of Article 141 of the Constitution of India, the Law, as declared by Supreme Court, is binding on all Courts. In the present case, the ratio of the decision of the Supreme Court in A.LR 1992 SC 564 has already been clarified by the Supreme Court subsequently by several decisions as already noticed. The view which we have now expressed is in consonance with the ratio of subsequent decisions and in no way contrary to the decision in the case of N. Suresh Nathan and another Vs Union of India and others reported in A.I.R 1992 SC 564.
22, In view of the above, we are inclined to allow the writ petition and direct that a review D.P.C should be held to consider the question of promotion of the present petitioners vis-a-vis the Respondents 2 to 8 and other eligible persons who had become eligible by the date of the sitting of D.P.C held in 1996. It is made clear that the persons who got the benefit of the Supreme Court decision in A.IL.R 1992 SC 564 are not before this Court and their promotion is not at aif affected by the present order.
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23. The learned counsel for the petitioners submitted that in 1991 the Rules had been changed and in the cadre of Junior Engineers. Two grades have been introduced viz., Junior Engineer Grade --II and Junior Engineer Grade - I. It is further submitted that the present petitioners had been promoted to Grade -I earlier to the contesting respondents 2 to 8 and therefore, before promoting respondents 2 to 8, the petitioner should have been promoted. In the meantime, such Rule has been abolished. In view of the fact that we have given a direction for reconsideration of the questions of promotion, this question raised by the petitioners need not be decided and we have not expressed any opinion on this aspect.
24, The writ petition is accordingly allowed, subject to the directions given. No costs. Fresh Exercise as per our direction shall be carried out within the period of four months from the date of communication of this order.
3.4 N.Suresh Nathan and others (Degree holders) filed Civil Appeal No.8468 of 2003 before the Hon'ble Supreme Court challenging the order of the High Court of Madras. This has led to N.Suresh Nathan If case. The relevant portions and directions of Suresh Nathan IT case are given below :
39. In the present case, we find that Rule 5 of the Recruitment Rules states that the post of Assistant Engineer in the Public Works Department, Pondicherry, is a selection post. The Recruitment Rules, however, do not lay down that seniority-cum-
merit would be the criteria for promotion to the selection post of Assistant Engineer.
40. In Jai Narain Misra (Dr.) v. State of Bihar [(1971) 1 SCC 30ja three-Judge Bench of this Court held that the question of seniority was not relevant for promotion to the sefection post in the language of the judgment of this Court in Jai Narain Misra (Dr.) v. State of Bihar [(1971) 1 SCC 30] : (SCC p. 32, para 3) "3, It was not disputed before us that the post of Director of Agriculture is a selection post. Therefore, the question of seniority was not relevant in making the selection. It is for the State Government to select such officer as it considers as most suitable. In this view we think the High Court was not justified in going into the question of seniority nor will we be justified in going into that question."
Thus, the question of seniority in the grade of Section Officers or Junior Engineers is not at all relevant for promotion to the post of Assistant Engineer in the Public Works Department, the Government of Pondicherry.
41, The practice adopted by the Government of Pondicherry in consultation with UPSC of counting the services of Section Officers or Junior Engineers, who qualified as graduates while in service from the date they passed the degree or equivalent examination and placing them in order of seniority accordingly for the purpose of consideration for promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is contrary to Rule 5 of the Recruitment Rules. Similarly, the direction of the High Court in the impugned judgment and order to count the entire service of a person concerned even before acquiring degree in Civil Engineering for the purpose of seniority and promotion to 7 0.A.1207/2016 the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is contrary to Rule 5 of the Recruitment Rules,
42. The person, who is most meritorious, is the most suitable person to be promoted for the selection post. Merit, in other words, is the sole criterion for promotion to the selection post. In Guman Singh v. State of Rajasthan [(1971) 2 SCC 452] a five- Judge Bench of this Court speaking through Vaidialingam, J. explained how merit of candidates for promotion is to be assessed in the following words: (SCC pp. 468-69, para 35) "35. ... No doubt the term 'merit' is not capable of an easy definition, but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the university, his character, integrity, devotion to duty and the manner in which he discharges his official duties. Allied to this may be various other matters or factors such as his punctuality in work, quality and outturn of work done by him and the manner of his dealings with his superiors and subordinate officers and the general public and his rank in the service. We are only indicating some of the broad aspects that may be taken into account in assessing the merits of an officer. In this connection it may be stated that the various particulars in the annual confidential reports of an officer, if carefully and properly noted, will also give a very broad and general indication regarding the merit of an officer."
Where, therefore, there are a large number of eligible candidates available for consideration for promotion to a selection post, the Government can issue executive instructions consistent with the principle of merit on the method to be followed for considering such eligible candidates for promotion to the selection post.
45, The learned counsel for Respondents 2 to 19, in their reply, submitted that the Government cannot adopt a procedure for selection by way of promotion to the post of Assistant Engineer contrary to the Recruitment Rules, They submitted that the Recruitment Rules do not provide that for promotion under Clause 1 of Rule 11, the services of Section Officers/Junior Engineers who qualified as graduates while in service, would be counted from the date they passed the degree or equivalent examination and their services prior to the date of passing the degree or equivalent examination would be ignored. They further submitted that the Government aiso cannot adopt the procedure of selection which Violates the fundamental right guaranteed under Article 16 of the Constitution of India to equality of opportunity in matters of public employment.
48, As we have seen, Rule 5 of the Recruitment Rules in the present case states that the post of Assistant Engineer is a selection post and the Recruitment Rules nowhere provide that seniority-cum-merit would be the criteria for promotion. In the absence of any indication in the Recruitment Rules that seniority in the grade of Section Officers/Junior Engineers will be counted for the purpose of promotions to the post of Assistant Engineer, consideration of all Section Officers/Junior Engineers under Clause 1 of Rule 11 of the Recruitment Rules who are eligible for such consideration has to be done on the basis of assessment of the comparative merit of the eligible candidates and the most suitable or meritorious candidate has to be selected for the post of Assistant Engineer. Such a method of selection will be consistent 8 0.4.1207/2016 with Rule 5 of the Recruitment Rules and Article 16 of the Constitution which guarantees to al/ citizens equality of opportunity in matters of public employment.
49. In our considered opinion, therefore, the practice adopted by the Government of Pondicherry on the advice of UPSC of counting the service of the eligible candidates from the date of acquisition of the degree in Civil Engineering by them and the impugned judgment and order of the High Court directing that the entire service of eligible candidates, both prior and after acquisition of the degree of Civil Engineering by them, would be counted for the purpose of promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules are contrary to the Rules made under Article 309 of the Constitution and the fundamental right guaranteed under Article 16 of the Constitution.
50. For the aforesaid reasons, we set aside the impugned judgment of the High Court and direct the Government of Pondicherry to consider the cases of all Section Officers or Junior Engineers, who have completed three years' service in the grade of Section Officers or Junior Engineers, for promotion to the vacancies in the post of Assistant Engineer, Public Works Department, Government of Pondicherry, in accordance with their merit. We make it clear that the promotions to the post of Assistant Engineer already made pursuant to the judgment and order of the High Court will not be disturbed until the exercise is carried out for promotion in accordance with merit as directed in this judgment and on completion of such exercise, formal orders of promotion to the vacancies in the posts of Assistant Engineer which arose during the pendency of the cases before this Court are passed in case of those who are selected for promotion and after such exercise only those who are not selected for promotion may be reverted to the post of Section Officer or Junior Engineer.
3.5 The above judgement of the Hon'ble Supreme Court in Suresh Nathan-II has attained finality and the Department is bound to follow the directions in the said case which is not disputed by the respective parties. The Hon'ble Supreme Court has set aside the Judgment of the High Court of Madras in WP No 11236/2000, wherein the direction being that the entire service of the person concerned even before acquiring the degree in Civil Engineering has to be counted for the purpose of seniority and promotion was held to be contrary to Rule 5 of the Recruitment Rules, The post of Assistant Engineer being a selection post should be filled up solely on the basis of merit and the question of seniority is not at aif relevant for promotion to the post of Assistant Engineer and the Government can issue executive instructions consistent with the principle of merits.
3.6 In OA 13/2011 filed by the Diploma Holders before this Tribunal, who had acquired Degree subsequenily, the Department had been directed to consider promotion to the post of Assistant Engineer as the per the directions issued in Suresh Nathan -- If Judgment of the Supreme Court.
3.7 As per the Reply Statement of the Official Respondents in OA 13/2011, they have conducted Review DPC from 18.09.2012 to 25.09.2012 to comply with the orders of the judgment of the Hon'ble Supreme Court in Suresh Nathan Case ff. Further they 3 0.A.1207/2016 have adopted the DOPT Office Memorandum, dated 06.01.2006, while conducting the DPC. The minutes of the DPC shows that the Committee has assessed the comparative merit as directed in Suresh Nathan Case II. Promotion orders were also issued. Aggrieved by the orders of promotion, the Junior Engineers, who entered service with Diploma and who subsequently acquired Degree, filed Contempt Petition (Civil) No.339 and 340 of 2013 in Civil Appeal No.8468 of 2003. The Hon'ble Supreme Court, vide its order, dated 16.10.2015, (reported in 2015 (16) SCC 652 (C.Chakravarthy & Ors. Vs. M.Sathyavathy & Others) has closed the Contempt Application with certain observations, nevertheless directing the Department to comply with the judgment of the Hon'ble Supreme Court in Suresh Nathan If. The Department conducted Review DPC during the year 2016 and the review DPC met on 11.04.2016, 18.04.2016 and 12.05.2016 and reviewed the proceedings of the DPC for various years where the promotions have already been made. It is necessary to narrate subsequent proceedings before the Hon'ble Supreme Court pursuant to the judgement in Suresh Nathan case - II, 3.8 IA Nos. 1 and 2/2016 was filed by Suresh Nathan (Degree Holder) seeking intervention in the Contempt Petition Nos, 272 - 273 of 2016. On 16.01.2017, the following order was passed in Contempt Petition (Civil) Nos. 272 - 273 of 2016:
"We are of the view that since the main matter has already been decided by this Court any surviving dispute between the parties can be gone into in appropriate proceedings before any appropriate forum.
There is thus no ground to continue these contempt proceedings and interlocutory applications. Accordingly the contempt proceedings and interlocutory applications are closed."
3.9 The Applicants primarily rely upon the above order, dated 16.01.2017, for maintainability of the OA. Another order was also passed on 16.01.2017 by the Hon'ble Supreme Court in IA Nos 5,6/2017 which were preferred by Suresh Nathan and Ravishankar and the Contempt Proceedings have been closed. The said Suresh Nathan and Ravishankar filed WP No 182/2017 before the Hon'ble Supreme Court under Article 32 of the Indian Constitution and, as per the Applicants, it was not taken up for hearing and vide order, dated 03.04.2017, it was directed by the Hon'ble Supreme Court to treat the same as an application for clarification which was re-numbered as MA No 76/2017 seeking Clarification in the contempt proceedings. On 03.08.2017, the Hon'ble Supreme Court dismissed MA No 76/2017 which was the clarification petition. Thereafter, Suresh Nathan and Ravishankar filed Review Petition before the Hon'ble Supreme Court and it was only at Diary Stage and was also dismissed, vide order, dated 18.01.2018. The Applicants have also obtained interim order, dated 19.12.2018, before the CAT, Madras Bench, that status quo shall be maintained with regard to the disputed vacancies by all parties. The minutes of the DPC and the consequential order of promotion are under challenge in the Original Applications.
4, After notice, the respondents, both official and private, have entered appearance through their counsels and filed the reply statement opposing the relief on the ground that once the issue 40 0.4.1207/2016 has already been settled by the Hon. Supreme Court, the applicants' prayer cannot be acceded to. Hence, the principles of estoppel and res judicata will apply.
4,1 The respondent department has filed a counter statement stating that, in view of the implementation of the orders of the Hon'ble Supreme Court of India in C.A.No.8468/2003 (reported in 2015 (16) SCC 652 (C.Chakravarthy & Ors. Vs. M,Sathyavathy & Others), many Assistant Engineers were reverted and posted against lower posts. Consequential promotion orders were issued to the post of the Assistant Engineer.
4.2 The arguments of the Private Respondents (Written Arguments also filed) are as follows : (the same being extracted from the written arguments filed by them) i the impugned promotion orders are based on the DPC proceedings dated April - May 2016 which were issued as per orders of the Hon'ble Supreme Court in 2015 (16) SCC 652 (C.Chakravarthy & Ors. Vs. M.Sathyavathy & ORs). Further, the impugned promotion orders were issued pursuant to the direction of the Hon'ble Supreme Court.
ii, The applicants' seniors had filed identical petitions before the Supreme Court to challenge the said DPC proceedings and their consequent reversion dt.01.08,.2016 in M.A.No. 76/2017 (W.P.(c).No.182/2017)(N.Suresh Nathan & Ors vs. Govt. of Puducherry)(at, P.113-117). The same was rejected by the Hon'ble Supreme Court by its order dt.03.08.2017 following its judgement in 2015 (16) SCC 652.
iii The same relief was sought in Review Petition No. ___ of 2017 (D.No.27710/2017) seeking a review of the Supreme Court's order dt. 16.102015 reported in 2015 (16) SCC 652. The said Review Petition was also dismissed by the Supreme Court in its order dt. 18.01.2018.
iv. The applicants have suppressed all these facts including the fact that they were reverted by orders dt. 20.07.2016 and 01.08.2016 which order was challenged before the Supreme Court and the Court upheld the same.
v. More importantly, the applicants were reverted by orders dt. 01.08.2016 based on the impugned orders. The applicants have not challenged their reversion, but instead ingeniously sought for promotions with retrospective effect. Such a prayer has been rejected by the Supreme Court.
vii The Supreme Court's order is binding on the applicants on the principle of "Constructive Res judicata". The applicants were aware of the proceedings before the Supreme Court, more so when this Hon'ble Tribunal by its interim order dt. 28.07.2016 in this case directed them to seek relief from the Supreme Court, while rejected any interim relief. The applicants, however, chose to remain mute spectators.
4.3 The private Respondents have also cited various judgements justifying their arguments which were also gone through in detail. One of the grounds argued by the Private Respondents is that CAT ~ Madras Bench has no jurisdiction since the matter is settled before the Hon'ble Supreme Court. The Hon'ble Supreme Court in its order dated 16.01.2017 has closed the Contempt Proceedings with the following directions:
11 0.A.4207/2016"We are the view that since the main matter has already been decided by this Court any surviving dispute between the parties can be gone into in appropriate proceedings before any appropriate forum. There is thus no ground to continue this Contempt proceedings and interlocutory applications. Accordingly, the contempt proceedings and interlocutory applications are closed."
5. Heard learned counsel Mrs.Y.Kavitha for the applicants and Mr.R.Syed Mustafa for the official respondents and for the private respondents.
6. The arguments of the applicants being while implementing the order in Contempt Petition (Civil) No. 339 and 340 of 2013 in Civil Appeal No.8468 of 2003 {reported in 2015 (16) SCC 652 (C.Chakravarthy & Ors. Vs. M.Sathyavathy & Others), the Department has implemented the judgement dated 23.06.2003 of the High Court of Madras in Writ Petition No. 11236 of 2000 in Review DPC -IT by drawing up the panel, taking into account the entire service of the incumbents, both prior and after acquisition of the degree. It is also argued by the Applicants that the judgement of the Madras High Court has been set aside by the Hon'ble Supreme Court in Suresh Nathan Case - IT and hence the method followed in Review DPC held in 2016 is in violation of the directions in Suresh Nathan II, It is also argued that the Department did not issue executive instructions consistent with the principle of merit and weightage has been given to seniority alone and Junior Engineers who obtained minimum "bench mark"
which is "good" were placed in the panel. Seniority alone was given weightage without assessment of comparative merit of the eligible candidates. The applicant further argued that the Hon'ble Supreme Court in the Contempt Application has only given opinion for drawing up the list of eligible candidates but at the same time directed to redo the exercise in terms of Suresh Nathan Case -- IT and the review DPC held in 2016 is in blatant violation of the judgment in Suresh Nathan Case --- II, It is also argued that the applicants, who have put in more number of years of service in the higher posts, have been reverted to the lower post. In support of their claim, the applicants rely on the judgement in J3.S. Parihar Vs. Ganpat Duggar and Ors. (1996) 6 SCC 291 wherein the Hon'ble Supreme Court has held that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions, But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review.
6.1 Alf the applicants are aggrieved by the proceedings in Review DPC held in 2016 and consequential orders of promotion and hence the appropriate forum is Hon'ble CAT, Madras Bench, in filing an O.A. Even the Private Respondents, after the judgement of the Hon'ble Supreme Court in Suresh Nathan Case -II, were aggrieved by the issuance of the seniority list, and filed O.A. No, 13/2011 challenging the seniority list and the CAT Madras Bench directed the department to comply with judgement of the Hon''bile Supreme Court in Suresh Nathan Case -IT. The Diploma holders, who subsequently acquired Degree cannot approbate and reprobate in the given circumstances. it is, thus, found that the 12 0.4.1207/2016 appropriate forum for the applicants is CAT Madras Bench and it ruled in favour of the applicants.
6.2 The argument of private respondents, that the order of reversion has not been challenged by the applicants, has been taken note of and it is found that the order of reversion is only a consequential order, whereas the proceedings of the Review DPC held in 2016 and the order of promotion granted pursuant to the minutes of the DPC are the substantive orders.
6.3 It is also found from the records that the order of reversion, dated 01.08.2016, has not been challenged only in O.A. No, 1206 & 1208/2016 since they were issued subsequent to filing of the Original Applications. In O.A. No. 1249/2018, the order of reversion has been challenged. The Counsel for Applicants relied on the judgement of the Hon'ble Supreme Court in State of Punjab v. Davinder Pal Singh Bhullar and Others reported in (2011) 14 SCC 770.
6.4 The applicants relied on the following judgements to argue that the judgement of the Hon'ble Supreme Court in CP (Civil) No.339 & 340 of 2013 in Civil Appeal No. 8468 of 2003 (C Chakkaravarthy and others Vs. TMT M Satyavathy IAS), being in Contempt Proceedings, is not a binding precedent:
a.Prakash Amichand Shah Vs. State of Gujarat and others reported in (1986) 1 SCC 581 b.Orient Paper and Industries Ltd. and another Vs. State of Orissa and others reported in 1991 Supp (1) SCC 81 c. State of U.P and Another reported in (1991) 4 SCC 139 d.Employees State Insurance Company Vs. Kakinada Municipality and Others reported in (2022) 2 Supreme Court Cases 56 e.Prakash Amichand Shah Vs State of Gujarat and Others reported in (1986) 1 Supreme Court Cases 581 f£.V.M. Manohar Prasad versus N.RatnamRaju and Another reported in (2004) 13 Supreme Court Cases 610 g.PrithawiNath Ram Vs. State of Jharkhand and Others reported in (2004) 7 Supreme Court Cases 261 h.State of Haryana Vs. Ranbir Alias Rana reported in (2006) 5 Supreme Court Cases 167 South Central Railway Employees Cooperative Society Employees Union Vs. Yashodabai & others reported in (2015) 2 SCC 727 j.Sant Ram Vs State of Rajasthan ((1968) 1 SCR i111 k.Saratkumar Vs Biswajit Patnaik (1995 Sup.1 SCC 434 ,State of Punjab and others Vs Surinder Kumar and others (AIR 1992 SC 1593) 13 0.4.1207/2016 m.K.K, Dixit &Ors. Vs Rajasthan Housing Board &Anr n.Arati Ray Choudhury Vs. Union of India and Others reported in (1974) 1 Supreme Court Cases 87 o.Daryao V. State of U.P reported in 24 AIR 1961 SC 1457 p.National Confederation of Officers Association of Central Public Sector Enterprises and Others vs. Union of India and Others reported in (2022) 4 Supreme Court Cases 764 q. Order of the Hon 'ble Supreme Court in Contempt Petition (Civil) Nos. 272-273 of 2016.
rJ.S. Parihar Vs. GanpatDuggar and Ors. MANU/SC/0037/1997:
(1996) 6 SCC 291 s.State of Punjab v. Davinder Pal Singh Bhullar and Others reported in (2011) 14 SCC 770 t.D.B. Civil Writ Petition No, 1587/2022 u.K.K.Parma and Others Vs. H.C. of Gujarat and Others through Registrar reported in (2006) 5 Supreme Court Cases 789 6.5 Although it is argued that the judgement of the Hon'blie Supreme Court in CP (Civil) No.339 & 340 of 2013 in Civil Appeal No. 8468 of 2003 (C Chakkaravarthy and others Vs. TMT M Satyavathy IAS is not a binding precedent, the Hon'ble Supreme Court in the above Contempt proceedings has directed the department to implement the judgement in Suresh Nathan Case -
If. The judgement of the Hon'ble Supreme Court in Suresh Nathan Case - II is a binding precedent and the law laid down under Article 141, which is not disputed by the applicants nor the Private Respondents.
7. The respondents, in support of their contentions, have relied upon the following orders:
(a) Hon.Supreme Court order dated 04.04.1977 in State of UP Vs. Nawab Hussain
(b) Hon.Supreme Court order dated 26.11.1985 in Forward Construction Co. & Ors. Vs. Prabhat Mandal (Regd.), Andheri & Ors.
(c) Hon.Supreme Court order dated 11.04.2013 in Ramji Gupta & anr. Vs. Gopi Krishan Agrawal & Ors.
(d) High Court of Calcutta order dated 24.03.2006 in West Bengal State Co-operative Bank Limited & Ors, Vs. Anita Roy & Ors.
8. The point for consideration in the present OAs is whether the department has complied with the judgement of the Hon'ble Supreme Court in Suresh Nathan Case - II in the Review DPC held during the year 2016.
9, The Hon'ble Supreme Court in Suresh Nathan Case -- II has directed that the consideration of alf Junior Engineers under i4 0.A.1207/2016 Clause 1 of Rule 11 of the Recruitment Rules, who are eligible for such consideration has to be done on the basis of assessment of the comparative merit of the eligible candidates and the most suitable or meritorious candidate has to be selected for the post of Assistant Engineer and it is also clarified that when there are a large number of eligible candidates available for consideration for promotion to a selection post, the Government can issue executive instructions consistent with the principle of merit on the method to be followed for considering such eligible candidates for promotion to the selection post.
10. Contrary to the above directions of the Hon'ble Supreme Court in Suresh Nathan Case - II, when the minutes of the Review DPC conducted in 2016 was perused, it is found that the Departmental Promotion Committee has determined the merit of the Junior Engineers in the zone of consideration taking into account the benchmark as "good" and graded them as either as "fit" or "unfit". The entire minutes was perused and it is found that there is no iota of evidence that the DPC has assessed the comparative merit of the candidates and that the most suitable or meritorious candidates were selected. The department itself has admitted in their Reply Statement that they have followed DoPT Office Memorandum, dated 08.02.2002, and they have not issued any "Executive Instructions" since there are a large number of eligible candidates for promotion to the post of Assistant Engineer. The Review DPC held in 2012 was also perused where the assessment of "outstanding", "Very Good", "Good" was done by the DPC.
11. The applicants have made out a case that the Review DPC heid in 2016 is not as per the directions of the Hon'ble Supreme Court in Suresh Nathan Case - IT and the judgement of the Hon'ble High Court in Writ Petition No. 11236 of 2000 which has been set aside by the Hon'ble Supreme Court has been implemented. It is also found that promotion of the Private Respondents who are originally Diploma holders and have subsequently acquired a Degree, to the post of Assistant Engineer, is solely based on "Seniority", by taking into account their entire service as Junior Engineer, both prior and after obtaining Degree in Civil Engineering, whereas in Suresh Nathan Case - Il, the Hon'ble Supreme Court has directed that the selection should be purely on the basis of merit. The Hon'ble Supreme Court in K.K. Parma and Ors Vs. High Court of Gujarat and Ors through Registrar, reported in (2005) 5 Supreme Court Cases 789 has held as follows:
"27, Merit of a candidate is not his academic qualification. It is sum total of various qualities. It reflects the attributes of an employee. It may be his academic qualification. He might have achieved certain distinction in the university. It may involve the character, integrity and devotion to duty of the employee. The manner in which he discharges his final duties would also be a relevant factor
28. For the purpose of judging the merit, thus, past performance was a relevant factor. There was no reason as to why the same had been kept out of consideration by the Selection Committee. If a selection is based on the merit and suitability, seniority may have to be given due weightage but it would only be one of the several factors affecting the assessment of merit as comparative experience in service should be."
46) ' 15 0.A.1207/2016
12. The DPC held in 2016 reveals that seniority has been the sole criteria for selecting the candidates in violation of the judgement of Hon'ble Supreme Court in Suresh Nathan Case - II.
13. Para 15 of the minutes of the Review DPC held in 2016, for the panel year 1996, is extracted below:
S] | Name Date of Seniority | Social Status | Recommen No Eligibility No -dations of the DPC 1 Srinivasan V 19,09,1989 113 Unreserved = | Fit 2 Chakaravartht C | 15.09,1993 137 Unreserved | Fit 3 Suthanthiramani | 06.01.1993 140 Unreserved | Unfit 4 Paramasivam P 07.08.1990 157 Unreserved | Fit 5 Elanchezian G 01.05.1990 166 Unreserved | Fit 6 Paarrle S 08.03.1991 167 Unreserved | Fit 7 Suresh R 01.01.1993 184 Unreserved | Fit 8 Rajulu G 15.09.1993 187 Unreserved | Fit 9 Madhivanan S 01.05.1990 188 Unreserved | Fit 10 | Dhamodharan E | 01.06.1993 214 Unreserved Fit 41 | Adaikala 09.05.1994 217 Unreserved | Fit Lawrence 12 | Ramadasee P 09.08.1994 220 sc Fit 13 | Ramachandran § | 01.06.1993 221 Unreserved | Fit 14 | SegaranS 04.10.1992 223 Unreserved | Fit 15 } Suresh S 15.09.1993 224 Unreserved | Fit 46 | Jayakumar M 01.05.1990 230 Unreserved | Fit 17 | Kalidasan J 01.05.1994 231 Unreserved jj Fit i8 | Jeevadayalan KK | 01.01.1993 234 Unreserved j Fit 19 | Ramadoss E 01.06.1993 237 Unreserved | Fit 20 | Palanivelu P 01.06.1993 238 Unreserved { Fit 21 | Lawrence 01.05.1994 242 Unreserved | Fit Gunaselan K 22 | PalaniS 03.12.1990 247 Unreserved | Fit 16 0.4.1207/2016 23 | Mohammed 01.01.1990 250 Unreserved Fit Madarsahib Marecar 24 | Baskaran A 01.05.1990 259 Unreserved Fit "15, The officer under zone of consideration under Degree holders for 10 vacancies under unreserved category, 24 eligible officers were considered in the terms of the DoPT guidelines (No. of vacancies x 2 + 4). The DPC determined the "merit" of the officers in the zone of consideration with reference to the prescribed benchmark and accordingly grade the officers as "fit" or "unfit"
14. The argument of the applicants is that all the 24 officers are Diploma Holders who have subsequently acquired Degree and are coming under the Degree holder's quota. The "date of eligibility" is the date on which they have acquired Degree + 3 Years, but the "seniority" is their entire service as Diploma holder, even prior to obtaining degree. This fact is not disputed by the Private Respondents nor the department. The officers were also assessed either as "fit" or "unfit", thus, violating the Judgement of the Hon'ble Supreme Court in Suresh Nathan Case - If. By this exercise, one applicant, R. Ravichandran, who was originally Placed in the panef year 1996 and promoted as AE on 29.09.1996, by virtue of the Review DPC held in 2016 has been reverted from the promoted post of Assistant Engineer on 29.10.2008. In the case of some of the applicants, like S. Latha, C.T. Jayakanthan and S.Kanagarathinam, after being reverted pursuant to Review DPC held in 2016 they are presently posted as Junior Engineers, The Review DPC held in 2016 also reveals that a Diploma holder who obtained degree after 15 years of service as Diploma hoider will be artificially considered as if he had obtained his degree at the time of his initial appointment. Similarly, the perusal of the minutes of the Review DPC held in 2012, would reveal that under the Degree quota, the grading of the candidates were done as "Outstanding", "Very Good", "Good", and the most meritorious candidate was selected irrespective of their seniority. This is not denied by the Private Respondents.
15, The private respondents argued that the Original Application is hit by the principle of Res judicata since Writ Petition has been filed by Suresh Nathan and Ravishankar under Article 32 being modified as clarification petition and subsequent filing of Review Petition. The applicants argued that the Writ Petition No. 182 of 2017 was filed by N. Suresh Nathan and Ravishankar and not by the applicants herein who are not parties to the Writ Petition before the Hon'ble Supreme Court. The Writ Petition was converted as Clarification Petition, by order, dated 03.04.2017, and numbered as M.A, No. 76 of 2017, and, on 03.08.2017, the Clarification Petition was dismissed without deciding on merits. The proceedings of the Hon'ble Supreme Court shows that the Clarification Petition was not decided on merits, nor the Private Respondents have pleaded that the Clarification Petition has been decided on merits. The applicants submit the judgements to show that, unless the matter is decided on merits, the principle of Res Judicata will not apply. The judgements are Arati Ray Choudhury Vs. Union of India and Others reported in (1974) 1 Supreme Court 17 0.A.1207/2016 Cases 87 , Daryao V. State of U.P reported in 24 AIR 1961 SC 1457, and National Confederation of Officers Association of Central Public Sector Enterprises and Others vs. Union of India and Others reported in (2022) 4 Supreme Court Cases 764. Thus, it is found that the principles of res judicata will not apply in the present case, Hence, the respondents' arguments on this point are rejected.
16, It is to be noted that the order passed by the Hon. Supreme Court of India in the matter of Suresh Nathan-II, followed with their earlier judgment in the case cited as Suresh Nathan-I. Even while disposing of the contempt, the Hon. Supreme Court, in the fast paragraph of the order, reiterated that the order, dated 22.04.2010, of the Hon, Supreme Court passed in Suresh Nathan- II, has to be complied in its true letter and spirit. However, the respondents have not followed the said order and, without issuing any executive instructions, they have issued the said review DPC and bare perusal of the said review DPC shows nothing but the implementation of the order, dated 23.06.2003, of the Hon. High Court, passed in WP No.11236/2000, which was set aside by the Hon. Supreme Court in Suresh Nathan-II. Though, subsequently, Suresh Nathan and others have made an attempt to bring it to the notice of the Hon. Supreme Court, by way. of various applications/petitions, the Hon, Supreme Court dismissed the same, but, liberty was granted to the parties to agitate their grievances before the appropriate forum. Admittedly, none of the applicants in the present OA were made party before the Hon. Supreme Court in these petitions and thereby opportunity of hearing has not been given to the applicants herein. As liberty was granted by the Hon. Supreme Court to such employees whose grievances yet remained, to approach the right forum to agitate their grievances, they have approached this Tribunal by filing the present OAs. At the admission stage, this Tribunal, on the basis of the case prima facie, granted stay on the minutes of the said review DPC.
17, After hearing the parties at length and on perusal of the entire record, we feel that the exercise carried out by the respondents is not as per the directions issued by the Hon. Supreme Court in Suresh Nathan-II, It is also to be noted that the Recruitment Rules for promotion to the post of Assistant Engineer are very clear. By ignoring the Degree acquired by the Diploma holders, if their claim has to be considered only as per their seniority, then they will not come in the quota meant for the Degree holders. Their seniority has to be counted in the quota meant for the Diploma holders only. Mere by acquiring the Degree subsequently, those who joined with Diploma originally, cannot gain the seniority at par with the Degree holders who entered the servic originally with a Degree.
18. it is further to be noted that, in the matter of Jarnail Singh & Ors. Vs Lachhmi Narain Gupta & Ors as well as in the case of M. Nagaraj & Ors. v. Union of India & Ors, the Hon. Supreme Court has repeatedly observed and issued guidelines that the things which are already settled cannot be unsettled by subsequent actions of the department in the matter of promotion. It is also worth observing that the issue in respect of the claim of the Diploma folders for their promotion in the quota meant for Degree holders after subsequently acquiring Degree, was settled 18 0.A.1207/2016 by the Hon. Supreme Court in Suresh Nathan-I. However, the Diploma holders have made the attempt, subsequently, in the year 1997 in OA No.359/1997 and it has been settled finally in Suresh Nathan-If in Civil Appeal No.8486/2003. Therefore, the respondents, while implementing the order of the Hon. Apex Court in Suresh Nathan-IL, have not rightly applied their mind. Hence, we deem it fit and proper to quash and set aside the impugned orders, dated 29.06.2016, and, accordingly, the same are quashed and set aside. The respondents are directed to carry out, the necessary exercise strictly in adherence with the directions, dated 22.04.2010, of the Hon. Supreme Court passed in Suresh Nathan-II in its true ietter and spirit.
19. OA is disposed of, accordingly. No order as to costs. Pending MA's closed."
6. We cannot take a different view from that of the co-ordinate Bench, as highlighted above. In view of the same, we deem it fit and proper to dispose of the present OA as under:-
"The impugned order, dated 29.06.2016, Is quashed and set aside, The respondents are directed to carry out the necessary exercise strictly in accordance with the directions, dated 22.04.2010, of the Hon. Supreme Court passed in Suresh Nathan-II, in its true letter and spirit."
7. The OA is disposed of, accordingly. Pending MA(s), if any, also stands disposed. No costs.