Central Administrative Tribunal - Chandigarh
Sh. Jatinder Kumar Mahajan Working As ... vs Union Of India Through The Secretary on 29 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ....
O.A. 60/CH/2009 Date of Decision:29.11.2010
CORAM: Hon'ble Mr. Justice S.D. Anand, Member (J). Hon'ble Mr. Khushiram, Member (A).
1. Sh. Jatinder Kumar Mahajan working as Sr. S.D.E., officiating as D.E.T. O/o G.M.T. Chandigarh.
2. Tarlochan Singh working as Sr. S.D.E., officiating as D.E.T. O/o G.M.T. Chandigarh.
3. Kashmir Singh working as Sr. S.D.E., officiating as D.E.T. O/o G.M.T. Chandigarh.
4. Tarlochan Singh working as Sr. S.D.E., officiating as D.E.T. O/o C.G.M.T. Punjab Circle, Chandigarh.
5. Vimal Kumar Mahajan, working as Sr. S.D.E., officiating as D.E.T. O/o G.M.T. Chandigarh.
6. Resham Lal working as Sr. S.D.E., officiating as D.E.T. O/o G.M.T. Sangrur.
7. B.S. Sidhu working as Sr. S.D.E., officiating as D.E.T. O/o G.M.T. Sangrur.
8. Ramesh Lal working as Sr. S.D.E., officiating as D.E.T.(Trans), Gurdaspur, SSA, Pathankot.
9. Ranjodh Singh, working as Sr. S.D.E., officiating as DEP-I. O/o G.M.T. Pathankot.
Applicants
By: Sh. R.K. Sharma, Advocate.
Versus
1. Union of India through the Secretary, Government of India, Ministry of Communication and Information Technology, Department of Telecom, New Delhi.
2. The Chairman-cum-Managing Director, Bharat Sanchar Nigam Limited, Corporate Office, Bharat Sanchar Bhawan, Harish Chander Mathur Lane, Janpath, New Delhi.
3. Director (HRD), Bharat Sanchar Nigam Limited, Corporate Office, Bharat Sanchar Bhawan, Harish Chander Mathur Lane, Janpath, New Delhi.
...Respondents
By: Sh. Brajesh Mittal, Advocate.
ORDER
HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
Facts, relevant for determination of the controversy in this case, are as under.
2. Applicants joined the Department of Telecommunication, as Junior Engineers, in the years 1980, 1981, 1978, 1979, 1978, 1978, 1980, 1979 and 1978 respectively.
3. The next channel of promotion, available to the holders of the posts of Junior Engineer, is to the Telecom Engineering Service(TES), (Group B).
4. In terms of Para 206 of the P & T Manual, the inter se eligibility of the candidates, for purpose of promotion, is to be determined on the basis of the qualifying examination for such promotion. However, the department had been preparing the eligibility/ seniority list on the basis of the recruitment year. The matter was adjudicated upon by the Allahabad High Court in CWP No.2739 of 1981 in Parmanand Lals case. The Writ Petition came to be allowed by the Allahabad High Court by upholding the averment that the eligibility list for promotion to TES Group B has to be prepared on the basis of the qualifying examination (and not on the basis of recruitment year). That judgment was challenged by the department in Special Leave to Appeal (SLP), which came to be rejected by the Apex Court, vide order dated 8.4.1986. The view taken by the Allahabad High Court, thus, attained finality.
5. The applicants herein, and also a host of others who had qualified the departmental examination for promotion to the T.E.S. Group B in terms of Para 206 of the P & T Manual (Volume IV), were promoted by giving them the benefit of the judgment in Parmanand Lals case. Likewise, certain other similarly circumstanced employees filed O.A. No.1115-CH of 1991, titled Tarlochan Singh & others vs. Union of India & others which was allowed by the Chandigarh Bench of the Tribunal vide order dated 29.9.1998. Copy of that order is available on record as Annexure A-1. Likewise, Tarlochan Singh-II and Vimal Kumar Mahajan filed OA No.1173-CH of 1991 and S/Shri Resham Lal, Kashmir Singh and B.S.Sidhu filed O.A.No.1345-PB of 1991. During the course of hearing before the respective Benches, the learned counsel appearing on behalf of the department informed the Court that the cases of the applicants therein had since been decided in terms of the order granted by the Apex Court in Parmanand Lals case and the relevant benefit had been extended to them. All these facts are apparent from a perusal of Annexure A-2 which purports to be a copy of order dated 7th September, 1998 in O.A. No.1173-CH of 1991 and the cases connected therewith. In the light of that presentation of the department, above noticed, those O.As were dismissed by the Bench as having been rendered infructuous.
6. The benefit of Parmanand Lals case was extended to the applicant herein during the pendency of their cases before the Honble Central Administrative Tribunal and they had been promoted also to TES (Group-B) in terms of para 206 of the P & T Manual, Volume-IV on regular basis w.e.f. 9.8.1984, 9.8.1994, 16.9.1993, 26.8.1994, 28.6.1994, 16.8.1993, 8.8.1994, 3.9.1993 and 30.6.1994.
7. Apart from the applicants, a number of similarly circumstanced employees were also given the benefit of the judgment in Parmanand Lals case (supra).
8. In a subsequent litigation (reported as (1997) 10 SCC 226) the Apex Court adjudicated upon a similar controversy pertaining to the abrogation or otherwise of Para 206 of the P & T Manual and held that the applicants therein were not entitled to the benefit of Parmanand Lals case. That view of the Apex Court was re-affirmed by the Apex Court in the year 2000.
9. The benefit of Parmanand Lals case had already been extended to the applicants (and few other similarly circumstanced employees) much prior to the contrary view taken by the Apex Court in (1997 10 SCC 226. The department initiated proceedings for their reversion with retrospective effect.
10. The effect of the contrary view aforementioned, upon those to whom the benefit of Parmanand Lals case had already been extended, came up for adjudication before the Apex Court in I.A. No.16 in Civil Appeal No.4339 of 1995. While disposing of that appeal, the Apex Court categorically held that those who had already been given the benefit of the judgment in Parmanand Lals case, cannot be reverted with retrospective effect.
11. After the rendering of the judgment dated 28.9.2006 (by the Apex Court in I.A. No.16 in Civil Appeal No.4339 of 1995), few representations were made for extension of the benefit of that order. The department informed the representationists that as per legal advice received by Government, the benefit of the aforesaid judgment would be admissible to the applicants who were party before the Honble Supreme Court.
12. In judgment dated 25.3.2008 (Annexure A-7) as well, the Apex Court held that the seniority given to the employees on the basis of Courts orders, which had attained finality, cannot be upset.
13. The grievance of the applicants herein is qua the action of the respondents in re-opening the entire issue and to deny the benefit of Parmanand Lals case to them on the basis of the contrary view taken by the Apex Court in (1997) 10 SCC 226.
14. The respondents reiterated the stance adopted in the departmental hierarchy and claimed entitlement to upset the benefit given to the applicants in view of the fact that in Parmanand Lals case the rules were neither brought to the notice of the Honble Allahabad High Court nor discussed. Qua the non-grant of the benefit of the judgment rendered by the Apex Court in IA No.16 in Civil Appeal No. 4339 of 1995, it was averred by the respondents that the competent authority has taken a conscious decision to consider the cases of officers who had got judgment in their favour from the courts as per principle laid down by the Honble Allahabad High court in its judgment dated 20.2.1985 and judgments dated 26.4.2000, 28.9.2006 and 25.3.2008 of the Honble Supreme Court.
15. The following facts are apparent from a perusal of the above scenario which may be noticed here before proceeding to undertake the adjudicatory exercise:-
(a)In W.P. No.2739 of 1981, the Allahabad High Court upheld the principle that eligibility/ seniority shall be decided on the basis of qualifying examination. The SLPs (Nos.3384-3386 of 1986) filed against that judgment were dismissed by the Apex Court on 8.4.1986. O.A. No.1115-CH of 1991, filed by Tarlochan Singh & others came to be allowed by a Coordinate Bench of this Tribunal, vide judgment dated 29th September, 1998 (Annexure A-1).
(b)The benefit of the judgment rendered by the Allahabad High Court in Parmanand Lals case was made admissible to the applicants therein and also other similarly circumstanced employees who were not applicants therein.
( c )A contrary view in the matter was taken by the Apex Court in a judgment, reported as (1997) 10 SCC 226.
(d)The controversy about the effect of the (subsequent) contrary view upon those to whom the benefit of Parmanand Lals case had already been extended, came up for adjudication before the Apex Court in (2006) 4 SCT 504 in the case titled Union of India vs. Madras Telephone SC & ST Social Welfare Association and the connected case. The three judges Bench dealing with that case held as under:-
14. The question then arises is as to whether the applicants can claim the protection of their seniority and consequent promotion on the basis of observations and the clarification contained in the judgment of this Court reported in (2009) 9 SCC 71. Having considered all aspects of the matter we are satisfied that those whose cases stand on the same footing as that of Parmanand Lal cannot now be adversely affected by re-determination of their seniority to their disadvantage relying on the later judgment of this Court in C.A.No.4339 of 1995 reported in (1997) 10 SCC 226 (supra) as affirmed by the Court in its judgment reported in (2009) 9 SCC 71 (supra)
15. We, therefore, direct that such of the applicants whose seniority had been determined by the competent authority, and who had been given benefit of seniority and promotion pursuant to the orders passed by Courts or Tribunals followed the principles laid down by the Allahabad High Court and approved by this Court, which orders have since attained finality, cannot be reverted with retrospective effect. The determination of their seniority and the consequent promotion having attained finality, the principles laid down in later judgments will not adversely affect their cases.
16. This Court has clearly clarified the position in its aforesaid judgment. The observations made by this Court while disposing of the appeal of Parmanand Lal are also pertinent. This Court clearly laid down the principle that the seniority fixed on the basis of the directions of this Court which had attained finality is not liable to be altered by virtue of a different interpretation being given for fixation of seniority by different benches of Tribunal. Consequently, the promotion already effected on the basis of seniority determined in accordance with the principles laid down in the judgment of the Allahabad High Court cannot be altered.
17. Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Courts judgment in Parmanand Lals case have been upheld or recognized by Court or Tribunal by judgment and order which have attained finality will not be adversely affected by the contrary view now taken in the judgment reported in 1997(10 SCC 226. Since the rights of such applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent judgment of a Court or Tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. We order accordingly.
16. Certain employees applied to the department for protection in terms of the clarificatory protective order rendered by the Apex Court in IA No.16 in Civil Appeal No.4339 of 1995 (Annexure A-3). The department informed them (vide Annexure A-4 dated 30.3.2007) that the benefit thereof would be available only to those who were parties to the litigation aforementioned.
17. The applicants are, thus, those who were accorded the benefit of the judgment rendered by the Apex Court in Parmanand Lals case (vide which the Apex Court affirmed the judgment rendered by the Allahabad High Court). They are around to resist departmental endeavour to deny to them the benefit of the judgment rendered by the Apex Court in IA No.16 in Civil Appeal No.4339 of 1995.
18. The pure and simple plea raised on behalf of the applicants herein was that the benefit of the judgment rendered by the Apex Court in Parmanand Lals case cannot be denied to them because their cases are akin to that of the petitioners therein. The applicants have thereby claimed entitlement to obtain invalidation of the view obtained by the department vide communication dated 30.3.2007 (Annexure A-4).
19. The plea, raised on behalf of the applicants, was resisted by the learned counsel for respondents by arguing that the applicants not having approached the Apex Court could not be given the benefit of the judgment rendered in Parmanand Lals case, particularly when the Apex Court had categorically taken a view contrary to the view taken by it earlier in that (Parmanand Lals) case.
20. We are of the considered view that this O.A. deserves to be allowed. The present is a case which is squarely covered by the clarificatory judgment rendered by the Apex Court in IA No.14 in Civil Appeal No.4339 of 1995.
21. In the year 1981, Parmanand Lal and others qualified the qualifying examination held in the year 1974. They filed two Writ Petitions, complaining of their placement in the eligibility list below the last man who had passed the qualifying examination in 1975. The plea raised on behalf of the department was that the eligibility list had been arranged on the basis of seniority, based on the year of recruitment and ignoring the year of passing the qualifying departmental examination, as required by the Recruitment Promotion Rules of 1966. The Bench of the Allahabad High Court considered the submissions made before it and concluded that those who qualified in the departmental examination earlier were entitled to be promoted prior to those who qualified later, irrespective of the year of their initial recruitment. It was held that para 206 of the Manual was not in conflict with either the Rules of 1966 or 1981, but was supplemental to those Rules. Relief was, accordingly, granted to the writ petitioners based on the interpretation of the Rules and para 206 of the P & T Manual.
22. Petitions for Special Leave to Appeal Nos.3384-3386 of 1986 were filed by the Union of India challenging the aforesaid decision of the Allahabad High Court. These SLPs were rejected by the Apex Court, vide order dated 8.4.1986 with the following order:-
Special leave petition is dismissed on merits. In the facts and circumstances of the present case, we are not inclined to interfere with the judgment of the High Court except to a limited extent.
23. The judgment rendered by the Allahabad High Court and affirmed by the Apex Court, came to be followed by the Principal Bench of the CAT vide order dated 7.6.1991. The SLPs No.19716-19722 of 1991 against the same were dismissed by the Apex Court on 6.1.1992 with the following order:-
These special leave petitions are directed against the judgment of the Central Administrative Tribunal, Principal Bench, Delhi dated June 7, 1991. The Principal Bench has followed the judgment of the Allahabad High Court in Writ Petition Nos. 2839 and 3652 of 1981 decided on February 20,1985. SLP ( C )Nos. 3384-86 of 1986 against the judgment of the Allahabad High Court have already been dismissed by this Court on April 8, 1986. We see no grounds to interfere. Special Leave Petitions are dismissed.
24. The same controversy came up for consideration before the Apex Court in 1993(1) SCT 126 : 1993 Sup (4) SCC 693 in Junior Telecom Officers Forum and others vs. Union of India and others. Those SLPs were dismissed by the Apex Court with the following observations:-
Though learned counsel for the parties have referred to some judgments on the questions of res judicata, constructive res judicata and the binding nature of a precedent, we do not think it necessary to refer to any of those judgments as in the facts and circumstances of this case, and from what we have noticed above, we are satisfied that the issues which the petitioners now wish to raise had been agitated directly and substantially not only by TIOA, which was espousing their cause in the earlier litigation right up to this Court, but also by the Union of India. The order made by the Court in SLP ) Nos. 3384-86 of 1986 interfering with the judgment of the Allahabad High Court to a limited extent is an order made on the merits of the case as is quite apparent from the expressions used in that order and is a binding precedent. The issues were again raised and agitated by the Union of India as well as UTOA in SLP) Nos. 19716-22 of 1991 against the judgment of Principal Bench of CAT dated June 7, 1991 unsuccessfully. Those judgments have settled the controversy and have become final and binding in respect of the questions debated therein and the issue settled thereby and as was observed by a Constitution Bench of this Court in Makhanlal Waza vs. State of J & , the Union of India and its officers are bound to follow the same even if the members of the Forum or a majority of the engineers were not individually parties in the case before the Allahabad High Court. Since, the issues now raised have been agitated twice over, it is not permissible for the petitioners to once again reagitate the matter by coming now under the cloak of a Forum. The preliminary objection, therefore, must succeed and is upheld. The writ petition is accordingly held not maintainable and dismissed.
25. In Civil Appeal No.4339 of 1995, however, the Apex Court took a contrary view of the facts which (vicew) is not in accord with the judgment rendered by the Allahabad High Court in Parmanand Lals case which also came to be affirmed by the Apex Court. In that case, the Apex Court took a view that the judgment of this Court in Civil Appeal No.4339 of 1995 reported in (1997) 10 SCC 226 laid down the correct law. It did not approve the view of the Allahabad High Court observing that once the statutory recruitment rules came into force and the procedure was prescribed under the said Rules for preparation of eligibility list of officers for promotion to the Engineering Service Class II by Notification dated June 28, 1966, it is that procedure which has to be adopted and the earlier administrative instructions contained in para 206 of the P & T Manual cannot be adhered to. It observed that the contrary conclusion of the Allahabad High Court was undoubtedly incorrect.
26. In I.A. No.16 in Civil Appeal No.4339 of 1995, the petitioner applied for clarification in the following context:-
9. In view of the earlier judgments of this Court and the later judgment of Civil Appeal No.4339 of 1995, which apparently took a contrary view, the Union of India found difficulty in implementing the order of this Court and, therefore, it filed an application for clarification which came to be disposed of by this Court along with other applications, petitions and civil appeals, by a common judgment reported in (2000) 9 SCC 71 Union of India v. Madras Telephone SC & ST Social Welfare Association
27. The Apex Court, in that case, took a view that the judgment rendered by the Apex Court laid down the correct law. It did not approve the view of the Allahabad High Court observing that once the statutory recruitment rules came into force and the procedure was prescribed under the said Rules for preparation of eligibility list of officers for promotion to the Engineering Service Class II by Notification dated June 28, 1966, it is that procedure which has to be adopted, and the earlier administrative instructions contained in Para 206 of the P & T Manual cannot be adhere to. It observed that the contrary conclusion of the Allahabad High Court was undoubtedly incorrect. The Apex Court, however, made the following relevant observations which have a bearing on the protection of those to whom the benefit had already been extended in the light of the earlier judgment rendered by the Apex Court:-
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.
28. In view of the aforementioned discussion and the clarificatory view obtained by the Apex Court in Civil Appeal No.4339 of 1995, the inescapable conclusion is that the respondents were not authorised to withdraw from the applicants the benefit extended to them in compliance with the judgment in Parmanand Lals case which, on being affirmed by the Apex Court, had attained finality.
29. The O.A. shall stand allowed accordingly. The respondent cannot validly refuse to extend the benefit of the judgment dated 28.9.2000 passed by the Apex Court in IA No.16 in CA No.4339 of 1995. As a natural consequence thereof, the applicants shall also be entitled to the relevant consequential benefits.
30. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(KHUSHI RAM) (JUSTICE S.D.ANAND)
MEMBER(A) MEMBER(J)
Dated: November 29 , 2010
`bss
1
(OA No.60-CH/2009)