E.S.P.Rajaram
& Ors Vs. Union of India & Ors [2001] Insc 15 (10 January 2001)
D.P.Mphapatro,
Doraswamy Raju, S.V.Patil D.P. Mohapatra, J.
Special Leave Petition (crl.) 5373 of 1997
L.J
Leave
granted.
The
appellants who were appointed as Traffic Apprentices in Southern Railway prior
to May 15, 1987, have filed this appeal challenging the judgment of the Madras
Bench of the Central Administrative Tribunal (for short the CAT) dated October
4, 1996 in OA No. 1096 of 1996 dismissing the case with the observation that it
would be appropriate for the applicants to approach the Supreme Court for any
clarification/review of the judgment in the case titled Union of India and
others vs. M. Bhaskar and others 1996 (4) SCC 416. The controversy which arose
in that case was regarding the claim of Traffic Apprentices appointed prior to 15-5-1987 that they should be given the scale of pay of
Rs.1600-2660, benefit of which was available to Traffic Apprentices recruited
after 15-5-1987. Similar claims were raised before
different benches of the CAT.
There
had been divergence of opinion between the different benches, some accepting
the claim of pre 1987 Traffic Apprentices for the higher scale of pay, some
other benches taking a contrary view. The Ernakulam bench of CAT had quashed
the memorandum dated 15-5-1987 issued by the Railway Board in
which it was provided that the higher scale of pay would be admissible only to
the Traffic Apprentices recruited after the date of the memorandum. These
conflicting views taken by different benches of the CAT came up for
consideration by this Court in the case of Union of India and others vs. M. Bhaskar
and others (supra), in which a Bench of three learned Judges held inter alia (i)
that Rule I-A of the Indian Railway Establishment Code which had come to be
made pursuant to the power conferred by the proviso to Article 309 of the
Constitution permitted the Railway Board to issue necessary instructions
regarding recruitment in the lowest grade and the memorandum dated 15-5-1987
having been issued in exercise of that power, the Board had valid authority to
issue the memorandum; ii) that since the recruitment of apprentices under the
impugned memorandum was to man the posts, not of Assistant Station Masters,
Assistant Yard Masters etc. as before, but of Station Masters and Yard Masters
and the standard of examination for the apprentices to be recruited after
15-5-1987 was required to be higher than that which was prevailing, giving them
higher pay scales or reducing the period of their training, could not be said
to be d iscriminatory, arbitrary or unreasonable. iii) That the cut off date 15-5-1987 is not arbitrary since the court felt satisfied that
the date is of relevance and the memorandum as given came to be issued in the
circumstances noticed in the judgment. This Court upheld the validity of the
memorandum. The conclusions arrived at by this Court were summed up in
paragraph 17 of the judgment which reads as follows:
"17.All
the appeals, therefore, stand disposed of by setting aside the judgments of
those tribunals which have held that the pre-1987 Traffic/Commercial
Apprentices had become entitled to the higher pay scale of Rs.1600-2660 by the
force of memorandum of 15-5-1987. Contrary view taken is affirmed. We also set
aside the judgment of the Ernakulam Bench which declared the memorandum as
invalid;
so too
of the Patna Bench in appeal @ SLP (C) No. 15438 of 1994 qua Respondent 1. We
also state that cases of Respondents 2 to 4 in appeals @ SLPs (C) Nos. 2533-35
of 1994 do not stand on different footing." In paragraph 18 of the
judgment this Court considering the hardship which may be caused to the
appellants concerned directed Union of India and its officers not to recover
the amount already paid. The said paragraph is quoted herein below: 18. Despite
the aforesaid conclusion of ours, we are of the view that the recovery of the
amount already paid because of the aforesaid judgments of the Tribunals would
cause hardship to the respondents/appellants concerned and, therefore, direct
the Union of India and its officers not to recover the amount already paid.
This part of our order shall apply (1) to the respondent/appellants who are
before this Court; and (2) to the pre-1987 apprentice in whose favour judgment
had been delivered by any CAT and which had become final either because no
appeal was carried to this Court or, if carried, the same was dismissed. This
benefit would be available to no other." In pursuance of the directions
issued by this Court in the judgment, the departmental authorities gave
appropriate placement in the scale of pay to the appellants who were recruited
as Traffic Apprentices prior to 15-5-1987. They were given the pay of scale of Rs. 455-700 which stood revised as
Rs.1400-2300 on the recommendation of the 4th Pay Commission and not the scale
of Rs.550-750 which was revised to Rs.1600-2660. Feeling aggrieved by the said
order the appellants filed OA No.1096/96 which was disposed of by the judgment
dated 4th of October, 1996 of the Madras Bench of the CAT in the manner noted
earlier. Thereafter the appellants filed SLP No. 5373 of 1997 giving rise to
this appeal. In the said SLP a bench of three learned Judges of this Court by
the Order passed on 6-11-1997 directed that the matter be placed before a
constitution bench, since the judgment in M. Bhaskar's case (supra) was
delivered by co-equal bench. The referral order is quoted hereunder;
"In
this special leave petition the grievance of the petitioners is against the Direction
No.2 contained in Para 18 of the judgment of this court in
Union of India & Ors.
Bench
of Three learned Judges whereby it has been directed that the order contained
in para 18 would apply to pre-1987 apprentices (Traffic) in whose favour
judgment has been delivered by any CAT and which had become final either
because no appeal was carried to this Court or, if carried, the same was
dismissed. The learned counsel for the petitioners has challenged the
correctness of these directions on the ground that finality of the orders
passed in the case of the petitioners as a result of the special leave petition
filed against the order of the CAT having been dismissed by this Court, could
not be reopened as a result of the said directions. Since the judgment in M Bhaskar's
case (supra) was delivered by a Bench of three learned judges of this Court, we
consider it appropriate that the matter be placed before the Constitution
Bench. It is directed that the matter may be placed before the Hon'ble Chief
Justice for directions in this regard.
In the
meanwhile, it is directed that the Status quo with regard to reversion in rank
and reduction in pay scales shall be maintained, as it exists today." The
main thrust of the arguments of learned counsel appearing for the appellants
was that the observations and directions given by this Court in M. Bhaskar's
case (supra) particularly in paragraph 18 thereof are unsustainable since it
was passed without giving any notice to the appellants and/or other similarly
placed employees who were seriously prejudiced by such directions. Elucidating
the contentions, the learned counsel submitted that the appellants who had been
given fitment in the higher scale of pay, Rs.1600-2660 and on that basis some
of them had got further promotions should not have been subjected to the
directions in the judgment of this Court particularly when the special leave
petition filed by the Union of India and the Railways against the judgment of
CAT (Madras Bench) dated 4th of December, 1989 in OA No. 322 of 1988 and 488 of
1987 (the appellants were applicants in OA 322 of 1988) accepting their claim
for the higher scale of pay had been dismissed in limine by this Court. In any
view of the case, submitted the learned counsel, the principle of natural
justice required that the appellants should have been given notice and afforded
an opportunity of hearing before the order prejudicially effecting their
interest was passed. The learned Additional Solicitor General appearing for the
respondents on the other hand contended that in the context of the facts and
circumstances of the case and the nature of the controversy raised, this Court
rightly passed the order, issuing the directions in paragraph 18 of M. Bhakar's
case (supra) for the purpose of bringing about uniformity amongst all the
employees similarly placed, that is, those who were recruited as Traffic
Apprentices prior to 15-5-1987. The further submission of the learned Addl.
Solicitor General was that this Court taking note of the hardship which may be
caused to the appellants and other similarly placed employees issued the
further direction that no recovery shall be made of the amount which they might
have received in the higher scale of pay. In the submission of the learned
Addl. Solicitor General, the directions in paragraph 18 of the judgment were
issued with a view to do complete justice between all pre-1987 Traffic
Apprentices and therefore calls for no interference.
Since,
the thrust of the arguments of the learned counsel appearing for the
petitioners and the intending interveners was that the observations in
paragraphs 17 & 18 of the judgment in M.Bhaskar's case (supra) by which
they have been seriously prejudiced were not made without giving notice to
them, we specifically asked the learned counsel to place their arguments on the
merits of the directions contained in the said paragraphs for the purpose of
satisfying ourselves if a re-look at the said decision is necessary. The
learned counsel could not raise any contention of substance questioning the correctness
of the decision in the aforementioned case except stating that many of the
persons who were parties in the cases decided by the Tribunal taking the
contra- view and some others had been given benefit on the basis of the
decision of the Tribunal and some of them have even got further promotions
which have become vulnerable in view of the decision of this Court in M. Bhaskar
case (supra). It was their contention that this Court should have made it clear
that the decision in M. Bhaskar case (supra) will not affect the parties in
whose favour judgments have been delivered by any bench of CAT and which had
become final either because no appeal was carried to this Court or if carried
the same was dismissed and further the benefit should have been extended to
others who though not parties in any proceeding before any bench of CAT had
been given service benefit on the basis of the judgment delivered by a bench of
the CAT taking the view which was rejected by this Court in M. Bhaskar case
(supra). We have carefully perused the judgment in M. Bhaskar's case (supra).
The decision in that case has been taken on a detailed analysis of the relevant
provisions of the Indian Railway Establishment Code and the Indian Railway
Establishment Manual (1968 Edn.), and in the light of certain general
principles of law relating to recruitment cogent reasons have been given in
support of the findings and conclusions arrived at in the judgment. As noted
earlier no contention was advanced before us pointing out any serious error in
the decision therein. We are satisfied that in the facts and circumstances of
the case placed before their Lordships the decision is correct and warrants no
interference.
If it
is necessary to trace the source of power of this Court to issue the directions
and pass the order as in paragraph 18 of M Bhaskar's case (supra) one can
straightaway look to Article 142 of the Constitution. The said provision vests
power in the Supreme Court to pass such decree or make such order as is
necessary for doing complete justice in any case or mater pending before it.
The provision contains no limitation regarding the causes or the circumstances
in which the power can be exercised nor does it lays down any condition to be
satisfied before such power is exercised. The exercise of the power is left
completely to the descretion of the highest court of the country and its order
or decree is made binding on all the Courts or Tribunals throughout the territory of India. However, this power is not to be exercised to override any
express provision. It is not to be exercised in a case where there is no basis
in law which can form an edifice for building up a super structure. This Court
has not hesitated to exercise the power under Article 142 of the Constitution
whenever it was felt necessary in the interest of justice. In the case of M S Ahlawat
vs. State of Haryana and another (2000) 1 SCC 278) a bench of three learned
Judges of this Court considering the power of the Court to recall its own order
in a criminal case referred to the relevant observations in Supreme Court Bar
Association v. Union of India (1998) 4 SCC 409) and held that under Article 142
of the Constitution the Supreme Court cannot altogether ignore the substantive
provisions of a statute and pass orders concerning an issue which can be
settled only through a mechanism prescribed in another statute. The following
passage from the headnote of the case of Supreme Court Bar Association v. Union
of India (supra) was quoted with approval : "However, the powers conferred
on the Court by Article 142 being curative in nature cannot be construed as
powers which authorise the Court to ignore the substantive rights of a litigant
while dealing with a cause pending before it. This power cannot be used to
'supplant' substantive law applicable to the case or cause under consideration
of the Court. Article 142, even with the width of its amplitude, cannot be used
to build a new edifice where none existed earlier, by ignoring express
statutory provisions dealing with a subject and thereby to achieve something
indirectly which cannot be achieved directly. The very nature of the power must
lead the Court to set limits for itself within which to exercise those powers
and ordinarily it cannot disregard a statutory provision governing a subject,
except perhaps to balance the equities between the conflicting claims of the
litigating parties by 'ironing out the creases' in a cause or matter before it.
Indeed the Supreme Court is not a court of restricted jurisdiction of only
dispute-settling. The Supreme Court has always been a law-maker and its role
travels beyond merely dispute settling. It is a 'problem-solver in the nebulous
areas' but the substantive statutory provisions dealing with the subject-matter
of a given case cannot be altogether ignored by the Supreme Court, while making
an order under Article 142. Indeed, these constitutional powers cannot, in any
way, be controlled by any statutory provisions but at the same time these
powers are not meant to be exercised when their exercise may come directly in
conflict with what has been expressly provided for in a statute dealing
expressly with the subject." In the case of R.C.Sahi and others vs. Union
of India and others (1999) 1 SCC 482 concerning applicability of certain
service rules to officers of the CRPF this Court relying on the power vested in
Article 142 "for doing complete justice in any cause or matter"
issued the following directions: "There are two petitioners in WP(C)
No.211 of 1997. Out of these two, it is stated that one has already retired
from the service. In the light of the interim orders dated 19.1.1998 and
27.1.1998, the first petitioner (C.M Bahuguna) is still in service in the
promoted post. In the circumstances, we are of the view that notwithstanding
the dismissal of the writ petition, the petitioner, viz. C.M Bahuguna who is
still in service in the promoted post, should be allowed to continue in the
said promoted post, if necessary, by creating a supernumerary post.
However,
we make it clear that all further promotions shall be made in the light of this
order." In the case of Gaurav Jain vs. Union of India and others (1998) 4
SCC 270) considering the petition for review, a Bench of three learned Judges
of this Court interpreting Article 142(1) held that the provision does not and
cannot override Article 145(5) and observed that the decrees or orders issued
under Article 142 must be issued with concurrence of the majority of the Judges
hearing the matter. This Court referred to the following observations made by
the Court in Prem Chand Garg vs. Excise Commissioner U.P.1963 Supp.(1) SCR 885
: "It does not and cannot override Article 145(5). The decrees or orders
issued under Article 142 must be issued with the concurrence of the majority of
Judges hearing the matter. In the case of Prem Chand Garg v. Excise Commnr.
U.P. a Bench of five Judges of this Court considered a Rule made by this Court
providing for imposition of terms as to costs and as to giving of security in a
petition under Article 142 were very wide and could not be controlled by
Article 32. Negativing this contention, this Court said :
"The
powers of this Court are no doubt very wide and they are intended to be and
will always be exercised in the interest of justice. But that is not to say
that an order can be made by this Court which is inconsistent with the
fundamental rights guaranteed by Part III of the Constitution. An order which
this Court can make in order to do complete justice between the parties, must
not only be consistent with the fundamental rights guaranteed by the
Constitution, but it cannot even be inconsistent with the substantive
provisions of the relevant statutory laws.
Therefore,
we do not think it would be possible to hold that Article 142(1) confers upon
this Court powers which can contravene the provisions of Article 32."
Similarly, powers conferred by Article 142(1) also cannot contravene the
provisions of Article 145(5). Article 142 would not entitle a Judge sitting on
a Bench of two Judges, who differs from his colleague to issue directions for
the enforcement of his order although it may not be the agreed order of the
Bench of two Judges. If this were to be permitted, it would lead to conflicting
directions being issued by each Judge under Article 142, directions which may
quite possibly nullify the directions given by another Judge on the same Bench.
This would put the Court in an untenable position. Because if in a Bench of two
Judges, one Judge can resort to Article 142 for enforcement of his directions,
the second Judge can do likewise for the enforcement of his directions. And
even in a larger Bench, a Judge holding a minority view can issue his order
under Article 142 although it may conflict with the order issued by the
majority. This would put this Court in an indefensible situation and lead to
total confusion. Article 142 is not meant for such a purpose and cannot be
resorted to in this fashion." In the case of State of Punjab and others
vs. Bakshish Singh (1998) 8 SCC 222) concerning a departmental proceeding
against a police constable this Court rejecting the contention raised by the
appellant that the Supreme Court could not cure inconsistency because the
respondent had not filed any cross appeal, this Court removed the inconsistency
by invoking Article 142 of the Constitution and by referring to Order 41, Rule
33 and Section 107(1)(a) of the Code of Civil Procedure, 1908. This Court
referring to the decision of the Constitution Bench in Supreme Court Bar
Association case (supra) reiterated the position that while exercising power
under Article 142 of the Constitution the Court cannot ignore the substantive
right of a litigant while dealing with a cause pending before it and can invoke
its power under Article 142. The power cannot however be used to supplant
substantive law applicable to a case. This Court further observed that Article
142 even with the width of its amplitude, cannot be used to build a new edifice
where none existed earlier, by ignoring express statutory provisions dealing
with a subject and thereby achieve something indirectly which cannot be
achieved directly.
In the
case of Spencer & Company Ltd. and another vs. Vishwadarshan Distributors
Pvt. Ltd. and others (1995)1 SCC 259 this Court dealing with the binding nature
of the orders issued by the Supreme Court to the High Court referring to the
provisions of the Articles 141, 142 and 144 of the Constitution made the
significant observations: "The afore-narrated words, we think, presently,
are enough to assert the singular constitutional role of this Court, and correspondingly
of the assisting role of all authorities, civil or judicial, in the territory
of India, towards it, who are mandated by the Constitution to act in aid of
this Court. That the High Court is one such judicial authority covered under
Article 144 of the Constitution is beyond question. The order dated 14.1.1994
of this Court was indeed a judicial order and otherwise enforceable throughout
the territory of India under Article 142 of the Constitution. The High Court was
bound to come in aid of this Court when it required the High Court to have its
order worked out. The language of request oftenly employed by this Court in
such situations is to be read by the High Court as an obligation, in carrying
out the constitutional mandate, maintaining the writ of this Court running
large throughout the country." In the case of Ram Krishna Verma and others
vs. State of U.P. and others (1992) 2 SCC 620 a case relating to grant of
permit to private operators on nationalised routes, this Court referring to
Articles 136, 142 and 226 of the Constitution held that the Court should endeavour
to neutralise any undeserved and unfair advantage gained by a party invoking
its jurisdiction. Therein it was observed by this Court (at p.630):
"This
Court in Grindlays Bank Ltd. v. ITO held that the High Court while exercising
its power under Article 226 the interest of justice requires that any
undeserved or unfair advantage gained by a party invoking the jurisdiction of
the court must be neutralised. It was further held that the institution of the
litigation by it should not be permitted to confer an unfair advantage on the
party responsible for it. In the light of that law and in view of the power
under Article 142(1) of the Constitution this Court, while exercising its
jurisdiction would do complete justice and neutralise the unfair advantage
gained by the 50 operators including the appellants in dragging the litigation
to run the stage carriages on the approved route or area or portion thereof and
forfeited their right to hearing of the objections filed by them to the draft
scheme dated February 26, 1959." In the case of Re: Vinay Chandra Mishra
(1995)2 SCC 584) relating to a proceeding for criminal contempt a Bench of
three learned Judges of this Court dealing with the priliminary objection
raised on behalf of the contemner and the State Bar Council held that this
Court is not only the highest court of record, but under various provisions of
the Constitution, is also charged with the duties and responsibilities of
correcting the lower courts and tribunals and or protecting them from those
whose misconduct tends to prevent the due performance of their duties.
Therein
this Court distinguished the decisions in Prem Chand Garg (supra) and relied on
the decisions in Delhi Judicial Service Association vs. State of Gujarat (1991)4 SCC 406 and Union Carbide Corporation.etc.
vs. Union of India (1991) 4 SCC 584, and this Court made the following relevant
observations in connection with the power vested under Article 142 :
"Apart
from the fact that these observations are made with reference to the powers of
this Court under Article 142 which are in the nature of supplementary powers
and not with reference to this Court's power under Article 129, the said
observations have been explained by this Court in its later decisions in Delhi
Judicial Service Assn. v. State of Gujarat and Union Carbide Corpn. v. Union of India. In para
51 of the former decision, it has been, with respect, rightly pointed out that
the said observations were made with regard to the extent of this Court's power
under Article 142(1) in the context of fundamental rights. Those observations
have no bearing on the present issue. No doubt, it was further observed there
that those observations have no bearing on the question in issue in that case
as there was no provision in any substantive law restricting this Court's power
to quash proceedings pending before subordinate courts. But it was also added
there that this Court's power under Article 142(1) to do complete justice was
entirely of a different level and of a different quality. Any prohibition or
restriction contained in ordinary laws cannot act as a limitation on the
constitutional power of this Court. Once this Court is in seisin of a matter
before it, it has power to issue any order or direction to do complete justice
in the matter. A reference was made in that connection to the concurring
opinion of Justice A.N.Sen in Harbans Singh v. State of U.P. where the learned
Judge observed as follows: (SCC pp.107-08, para 20):
"Very
wide powers have been conferred on this Court for due and proper administration
of justice. Apart from the jurisdiction and powers conferred on this Court
under Articles 32 and 136 of the Constitution, I am of the opinion that this
Court retains and must retain, an inherent power and jurisdiction for dealing
with any extraordinary situation in the larger interests of administration of
justice and for preventing manifest injustice being done.
This
power must necessarily be sparingly used only in exceptional circumstances for
furthering the ends of justice." The Court has then gone on to observe
there that no enactment made by Central or State legislature can limit or
restrict the power of this Court under Article 142 of the Constitution, though
the Court must take into consideration the statutory provisions regulating the
matter in dispute.
What
would be the need of complete justice in a cause or matter, would depend upon
the facts and circumstances of each case.
In the
case of Union Carbide Corporation and others of this Court dealing with the
power of the Apex Court to withdraw unto itself cases
pending in the district court at Bhopal,considered the scope and ambit of the power vested in the Court under
Article 142 of the Constitution. In para 60 of the judgment it was observed :
"Any
limited interpretation of the expression "cause or matter" having
regard to the wide and sweeping powers under Article 136 which Article 142(1)
seeks to effectuate, limiting it only to the short compass of the actual
dispute before the Court and not to what might necessarily and reasonably be
connected with or related to such matter in such a way that their withdrawal to
the apex Court would enable the court to do "complete justice", would
stultify the very wide constitutional powers. Take, for instance, a case where
an interlocutory order in a matrimonial cause pending in the trial court comes
up before the apex Court.
The
parties agree to have the main matter itself either decided on the merits or
disposed of by a compromise. If the argument is correct this Court would be
powerless to withdraw the main matter and dispose it of finally even if it be
on consent of both sides. Take also a similar situation where some criminal
proceedings are also pending between the litigating spouses. If all disputes
are settled, can the court not call up to itself the connected criminal
litigation for a final disposal? If matters are disposed of by consent of the
parties, can any one of them later turn around and say that the apex Court's
order was a nullity as one without jurisdiction and that the consent does not
confer jurisdiction? This is not the way in which jurisdiction with such wide
constitutional powers is to be construed. While it is neiehter possible nor
advisable to enumerate exhaustively the multitudinous ways in which such
situations may present themselves before the Court where the Court with the aid
of the powers under Article 142(1) could bring about a finality to the matters,
it is common experience that day in and day out such matters are taken up and
decided in this Court. It is true that mere practice, however long, will not
legitimize issues of jurisdiction.
But
the argument, pushed to its logical conclusions, would mean that when an
interlocutory appeal comes up before this Court by special leave, even with the
consent of the parties, the main matter cannot be finally disposed of by this
Court as such a step would imply an impermissible transfer of the main matter.
Such technicalities do not belong to the content and interpretation of
constitutional powers.
In para
83 of the judgment this Court rejected as unsound and erroneous the proposition
that a provision in any ordinary law irrespective of the importance of the
public policy on which it is founded, operates to limit the powers of the apex
Court under Article 142(1).
In
paragraph 214 of the judgment summing up the conclusions reached this Court observed
:
(i)
The contention that the apex Court had no jurisdiction to withdraw to itself
the original suits pending in the District Court at Bhopal and dispose of the same in terms of
the settlement and the further contention that, similarly, the Court had no
jurisdiction to withdraw the criminal proceedings are rejected.
It is
held that under Article 142(1) of the Constitution, the Court had necessary
jurisdiction and power to do so.
Accordingly,
contentions (A) and (B) are held and answered against the petitioners.
In the
case of Ved Prakash and others vs. Union of India and others (1994) 1 SCC 45
taking note of the piquant situation caused due to inordinate delay in payment
of compensation for the property acquired under section 4 of the Land
Acquisition Act, this Court made the following observation:
"The
petitioners because of the delay and inaction on the part of the respondents are
in a great predicament. Any amount determined as market value of their lands
acquired, with reference to the dates of issuance of notifications under
sub-section (1) of Section 4 of the Act i.e. at the rate prevalent 15-21 years
prior to the dates of the making of the award, cannot be held to be compliance
of the mandate regarding payment of market value of the land so acquired under
the Constitution and the Act. This Court faced with such a situation, where
proceedings have remained pending for years after issuance of declarations
under Section 6, in order to protect the petitioners concerned from irreparable
injury i.e. getting compensation for their lands acquired with reference to the
date of notification under sub-section (1) of Section 4, which may be more than
a decade before the date of the making of the award, has advanced the date of
notification under sub-section (1) of Section, so that market value of the land
so acquired is paid at a just and reasonable rate. Reference in this connection
may be made to the cases of Ujjain Vikas Pradhikaran v. Raj Kumar Johri (1992)
1 SCC 328; Akhara Brahm Buta, Amritsar v. State of Punjab, (1992) 4 SCC 243 and
Bihar State Housing Board v. Ram Bihari Mahato, AIR 1988 Supreme Court 2134. This
Court has advanced the date of notification under sub-section (1) of Section 4
of the Act, in the cases referred to above, without assigning any reason, as to
how the date fixed by Sections 11 and 23 of the Act, can be altered for
ascertainment of the market value of land. The power of this Court under
Article 142 is very wide and can be exercised in the ends of justice. The scope
of the said Article was recently examined in the case of Union Carbide Corpn.
v. Union of India (1991) 4 SCC 584 (Emphasis supplied) In the case of N.A.
Mohammed Kasim (Dead) and another vs. Sulochana and others (1995) Supp(3) SCC
128 which arose from a civil suit this Court in the facts and circumstances of
the case considered it fit for invoking Court's power under Article 142 for
giving equitable relief to the plaintiff-respondents, not on ground on which
they claimed relief in the suit but on the ground of promissory estoppel equity
and fair play.
From
the conspectus of the views expressed in the decided cases noted above it is
clear that this Court has invoked the power vested under Section 142 of the
Constitution in different types of cases involving different fact situations
for doing complete justice between the parties.
In the
case on hand the controversy relates to the scale of pay admissible for Traffic
Apprentices in the Railways appointed prior to the cut-off date. The
controversy in its very nature is one which applies to all such employees of
the Railways; it is not a controversy which is confined to some individual
employees or a section of the employees. If the judgment of the tribunal which
had taken a view contrary to the ratio laid down by judgment of this Court in
M. Bhaskar's case (supra) was allowed to stand then the resultant position
would have been that some Traffic Apprentices who were parties in those cases
would have gained an unfair and undeserved advantage over other employees who
are or were holding the same post. Such enviable position would not only have
been per se discriminatory but could have resulted in a situation which is
undesirable for a cadre of large number of employees in a big establishment
like that of the Indian Railways. To avoid such a situation this Court made the
observations in paragraph 17 of the judgment. At the cost of repetition we may
reiterate that since the main plank of argument of the appellants was that
since they were not parties in the case they had no opportunity to place their
case before this Court made the observations in paragraph 17 of the judgment as
aforementioned we specifically asked learned counsel appearing for the parties
to place the argument in support of their challenge to the observations made by
this Court on merits. No point of substance assailing the observations on
merits could be placed by them. The only contention made in that regard was
some of the employees who were given benefit in the judgments of the CAT have
got further promotions and they may lose the benefit of such promotion in case
the observations made in paragraph 17 of the judgment are allowed to stand as
it is. We are not impressed by the contention raised. If some employees were
unjustly and improperly granted a higher scale of pay and on that basis were
given promotion to a higher post then the basis of such promotion been on a
non-existent; the superstructure built on such foundation should not be allowed
to stand; This is absolutely necessary for the sake of maintaining equality and
fair play with the other similarly placed employees.
However,
in our considered view, it will be just and fair to clarify that any amount
drawn by such employees either in the basic post (Traffic Apprentice) or in a
promotional post will not be required to be refunded by the employee concerned
as a consequence of this judgment. This position also follows as a necessary corolary
from the observations made by this Court in paragraph 18 of the judgment in M.Bhaskar's
case (supra).
On the
discussions made and the reasons set forth in the preceeding paragraphs the
appeal is dismissed but in the
circumstances of the case without any order for costs.
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