S. D. Raghunandan Singh Vs. State of Karnataka [1993] INSC 400 (5 October 1993)

AHMADI, A.M. (J) AHMADI, A.M. (J) SAHAI, R.M. (J) CITATION: 1994 AIR 1693 1994 SCC Supl. (2) 526

ACT:

HEADNOTE:

ORDER

1. No order on the application for impleading parties but counsel heard.

2. The facts leading to these appeals, briefly stated, are as under:

3. On April 18, 1956, 10 posts of First Division Clerks were sanctioned by the Government of Mysore in the Department of Sales Tax. On reorganisation of the States with effect from November 1, 1956, a large number of clerks in the Commercial Tax Department of the State of Bombay stood allocated to the State of Mysore, now Karnataka. The said clerks were treated as equivalent to Second Division Clerks in the State of Mysore by the Central Government. Thereafter, with effect from November 23, 1957, additional 93 posts of First Division Clerks came to be created in addition to the existing 90 posts and 10 other posts of First Division Clerks in the Department. Earlier to the creation of the 93 additional posts, the State Public Service Commission had invited applications for filling up 10 posts in the cadre of First Division Clerks. After the reorganisation of the State and the creation of 93 new posts, the State Public Service Commission issued a fresh advertisement inviting applications for filling up the said posts. The advertisement also stated that those who had already applied in response to the first advertisement, need not apply again. Ultimately, the Commission recommended 132 names for appointment to the existing vacancies. The State Government by an order made some time in January 1958, appointed 73 candidates from the list forwarded by the Commission. The letters of appointment issued to these 73 direct recruits indicated that their appointments were against the 93 posts created on November 23, 1957. What happened thereafter, led to a controversy between the newly appointed direct recruits and Respondents 4 to 81 before the High Court who were promoted as First Division Clerks in October 1959 and thereafter. These promoted First Division Clerks were later given deemed date retrospective promotion with effect from November 23, 1957. On account of this retrospective promotion, the 73 direct recruits were required to slide down in seniority and, therefore, they filed Writ Petition No. 7327 of 1969 challenging the Government decision. The writ petition was heard by a learned Single Judge of the High Court of Karnataka, who, by his judgment and order dated July 26, 1973, dismissed the petition. Against the said dismissal, the direct recruits, original petitioners, filed an appeal before a Division Bench of the High Court.

The Division Bench by its order dated March 27, 1979 allowed the appeal and reversed the judgment of the learned Single Judge holding that since the 73 direct recruits occupied the additionally created posts, the promotees could not have been given retrospective promotion from November 23, 1957 as it would result in both the promotees and the direct recruits occupying the very same 73 out of 93 posts which was irreconcilable. If the situation is viewed differently it would appear that once the promotees occupied the 93 posts from the date they were created on November 23, 1957, the direct recruits could not be adjusted against the 73 of the 93 posts and their appointments would be in jeopardy. In 528 that view of the matter, the Division Bench, while reversing the decision of the! learned Single Judge, directed as under:

"Accordingly, these appeals are allowed and in reversal of the order under appeal the writ petition is allowed and Exhibits A-1 to A-6 and 'C' are quashed reserving liberty to respondents 1 to 3 to pass fresh orders after a review of the matter in accordance with law." Against the said decision of the Division Bench, Civil Appeal Nos. 2821-22 of 1980 have been preferred by the promotees. In the appeals so filed before this Court, an interim order was made on November 27, 1980 for maintenance of status quo as on that day pending disposal of the appeals. It was further directed that if any promotions are made in future in accordance with the impugned judgment, they will abide by the result of the appeals.

4.Pursuant to the decision of the Division Bench, the State Government undertook a review as per its memorandum dated April 5, 1980. This review was of course subject to the decision that may be rendered by this Court in Civil Appeal Nos. 2821-22 of 1980. According to this review, all the 73 direct recruits were placed above the promotees on the plea that under the Karnataka State Civil Services (Regulations of Promotion, Pay and Pension) Act, 1973, which had come into force before the Division Bench disposed of the appeal, no retrospective promotion could be granted.

This review was the subject-matter of challenge in 3 applications filed by the promotees before the Karnataka Administrative Tribunal at Bangalore. All the 3 applications were disposed of by a common order dated March 11, 1988. By the said order the Tribunal came to the conclusion that the review was not strictly in conformity with the order of the Division Bench and in particular paragraphs 10 and 13 thereof. The Tribunal, therefore, set aside the review order and gave the following directions:

" 1. Respondents 1 and 2 are directed to give effect to para 13 of the order of the appellate court in W.A. Nos. 24-25 of 1973 in the manner indicated above keeping in view the observations made by the Court in para 10 of the order quoted above and by us in this order.

2.Respondents 1 and 2 are directed to prepare a fresh seniority list on the basis of the orders made under Item I above.

3.On the basis of the seniority list prepared under 2 above the promotions made after November 1, 1956 shall be reviewed under the PPP Act and the Service Examinations Act of 1976, and appropriate eligibility dates shall be assigned and on the basis of such review such seniority lists of all relevant cadres shall be prepared and all consequential benefits admissible under law shall be extended.

4.Whatever action is taken in pursuance to the orders made by us in these applications shall be subject to the decision of the Supreme Court in the appeals filed against the order of the appellate court in W.A. Nos. 24 and 25 of 1973.

5. Time six months." 5.The direct recruits being aggrieved by this order of the Tribunal have preferred Civil Appeal Nos. 1670-72 of 1988.

6.It appears that after the review, one of the promotees, V. Narayanappa filed a writ petition in the High Court of Karnataka challenging the review on the ground that he was not a party to the original writ petition which had given rise to the appeal disposed of by the Division Bench. The High Court refused to 529 entertain the petition on the ground that the very same issue was pending consideration by this Court in Appeal Nos. 2821-22 of 1980. Liberty was, however, granted to the petitioner to approach the High Court, if need be, after the decision of this Court in the said appeals. Aggrieved by the said order, the said V. Narayanappa has approached this Court by way of Civil Appeal No. 81 of 1983. The learned counsel for the appellant in the said appeal has stated that the fate of his appeal would depend on the view this Court may take in Civil Appeal Nos. 2821-22 of 1980 arising out of the Division Bench judgment.

7. We have heard learned counsel for the promotees as well as the direct recruits, the learned counsel for V. Narayanappa as well as the parties which seek implement and since all the appeals are interconnected we proceed to dispose them of by this common judgment.

8. The controversy seems to have arisen presumably because the State Government while granting antedated promotions to the promotees, who were First Division Clerks with effect from November 23, 1957, did not realise that out of the 93 newly created posts, 73 were already occupied by direct recruits under orders issued some time in January 1958. Therefore, when the State Government passed an order on May 25, 1963 granting deemed date promotions to the promotees with effect from November 23, 1957, it created a situation whereby out of the 93 newly created posts, 73 came to be occupied by both promotees and direct recruits. That is why, the Division Bench rightly pointed out that it had created an irreconcilable situation which could not be allowed to continue. It was for this reason that the Division Bench reversed the order of the learned Single Judge holding that while the State Government may have power to grant retrospective promotions in certain situations, in the present case the exercise of that power had led to an irreconcilable situation which could not be tolerated. The Division Bench, therefore, set aside the order of May 25, 1963 granting what the State Government called retrospective promotions and allowed the writ petition of the direct recruits with a direction that the State Government may pass fresh orders after a review of the matter in accordance with law. Now, while passing the fresh orders as a sequel to the Division Bench judgment, the State Government granted seniority to all the 73 direct recruits over the promotees on the plea that under the provisions of the Karnataka State Civil Services (Regulations of Promotion, Pay and Pension) Act' 1973, retrospective promotion was impermissible. The Tribunal intervened with this order of the Government in the 3 applications filed before it challenging the said review especially on the ground that the State had overlooked the observations of the Division Bench in paragraphs IO to 13 of its judgment. In that view of the matter, the Tribunal gave the directions reproduced earlier.

9. At the hearing of these appeals, it was pointed out to us that all the promotees have since retired and the only reason why they are contesting these appeals is that some of them may get benefit in the fixation of their pension and other retrial benefits. Even if we were to come to the conclusion that the subsequent order of the Tribunal against the review undertaken by the Government is unassailable and we were to dismiss the appeals preferred by the promotees, the State Government will once again be required to undertake a review which would create disturbance in the service. Having regard to the facts of the present case and, in particular, keeping in view the fact that all the erstwhile promotees have since retired, we think it would be in the interest of all 530 concerned that notional promotions may be given to the erstwhile promotees on the basis of existing vacancies at the material date, ignoring 73 posts which were already occupied by the direct recruits and refix their pension and other, retrial benefits on the basis of that notional date of promotion without disturbing the seniority of the 73 direct recruits. The effect of this order will be that some of the promotees will be given a notional date of promotion which may be antedated for the limited purpose of working out their retiral benefits depending on the availability of posts to which they could have been appointed after leaving out the 73 posts occupied by the direct recruits. We once again make it clear that this would be for the limited purpose of working out the pensionary benefits of the promotees who could have been adjusted against the available posts, other than the 73 posts occupied by the direct recruits without disturbing their seniority. This may be done within a period of four months so that some of the retired promotees who may get the benefit under this order may avail of the enhanced pensionary benefits. The orders passed by the Courts/Tribunal below will stand substituted by this order. All the appeals will stand disposed of accordingly. There will be no order as to costs in all the appeals.

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