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1. All India SC/ST Telecom Employees' Welfare Association of which the present aggrieved members are the officers of Department of Tele communications belonging to TES Group B have assailed seniority list dated 17.1.2007 of SC/ST Officers of TES Group B with a direction to implement the Eighty Fifth Constitution Amendment Act, 2001 with all consequential benefits.

2. Factual matrix, which is relevant to be highlighted, transpires that some of the members of the association were promoted from 1993 to 1998 as TES Group B Officers (Sub Divisional Engineer) in the light of Constitution Bench decision of Apex Court in Indra Sahney v. Union of India and Ors. . Article 16 of the Constitution of India was amended through Seventy Seventh Amendment Act, 1995. However, in Union of India v. Virpal Singh Chauhan , in the matter of accelerated promotion, it has been decided that the general category candidates will regain their seniority on catch-up rule over reserved category candidates on their turn promotion, which view was reaffirmed by the Apex Court in Ajit Singh Januja v. State of Punjab . However, a three Judges Bench of the Apex Court in Jagdish Lal v. State of Haryana declared impermissible regain of seniority, which ultimately culminated into a decision of Ajit Singh-II v. State of Punjab . Accordingly, Eighty Fifth Amendment was carried out in the Constitution in 2001. The aforesaid was implemented by the Government vide O.M. dated 21.1.2002 providing consequential seniority to the SC/ST.

13. Learned Counsel would contend that a reference to the decision dated 29.9.2006 passed by Madras High Court in P. Gangadharan's case (supra) is misconceived and misplaced as pursuant to the decision in Union of India v. Madras Telephone SC & ST Social Welfare Association , the benefit of consequential seniority was granted to the general candidates of which ratio shall also apply to the reserved category candidates.

14. Learned Counsel would contend that Executive instructions in the form of impugned seniority can neither be overreach nor nullify to whittle down the effect of the constitutional amendments.

25. Private respondent is another recognized Association of SC/ST and represented by Mr. R.P. Kapoor, learned Counsel. An objection is raised that no association can be permitted to file a separate petition in representative capacity on behalf of a small Group of SC/ST in part.

26. It is stated that inter-state-seniority of SC/ST candidates is to be operated in accordance with the decision of the Apex Court dated 26.4.2000, non-following the aforesaid order and non-adhering to the principle would amount to contempt of the Apex Court. To substantiate his plea, learned Counsel has also been relied upon the decision of Apex Court in Spencer and Company Ltd. and Anr. v. Vishwadarshan Distributors Pvt. Ltd. and Ors. .

40. Moreover, when there is an issue as to the applicability of a general or a special law, the later law overrides the former in its following as a precedent. On this analogy, the decision of the Apex Court in Madras Telephone SC & ST Social Welfare Association's case as reiterated by the Apex Court in IA-16 in C.A. 4339/1995 is an authority as to determination of seniority on the basis of year of recruitment.

41. No doubt the basic issue is right of accelerated seniority to the reserved category 'candidates in pursuance of DOP&T O.M. 2002, which has been followed by the respondents in their seniority lists issued on 29.7.2002 and 4.9.2002 yet their act to nullity the effect of accelerated seniority in their letter dated 13.11.2002 has been done away with by the Tribunal in O.A. No. 1306/2003. What has been directed is restoration of the seniority subject to the final outcome of the writ petition before the Apex Court i.e. M. Nagaraj's case (supra) and implementation of restoring back the erstwhile position of the applicants in the matter of their seniority would only indicate in its logic and rationale that the consequential seniority has to be restored to applicants. Yet this does not absolve the respondents while issuing a provisional seniority list in 2005, apart from following the concept of consequential seniority, the decision of the Apex Court in Madras Telephone' SC & ST Social Welfare Association's case (supra) and LA. of 2006 where in respect of reserved category candidates, the inter-se seniority is to operate as per the statutory Rules. As we find that the erstwhile seniority list No. IV issued by the respondents that inter-se seniority list dated 26.3.2001 has been approved by the Apex Court in an order passed in Contempt (supra), is an authority in law to the effect that inter-se seniority on the basis of year of recruitment has been recognized and approved by the Apex Court.