State
of Karnataka & Ors Vs. C. Lalitha [2006] Insc
49 (31 January 2006)
S.B.
Sinha & P.P. Naolekar S.B. Sinha, J.
Construction
of an inter-parties order of this Court is in question in this appeal wherein
the validity of an amendment of the reservation policy of the State which was
the subject matter of a decision of this Court in N.T.
Devin Katti
and Others v. Karnataka Public Service Commission and Others [(1990) 3 SCC
157], had been raised. This Court therein declared that the revised reservation
policy was not applicable to selection initiated prior thereto and consequently
directed:
"15In
this view, we direct the State Government to appoint the appellants on the
posts of Tehsildars with retrospective effect, but if no vacancies are
available the State Government will create supernumerary posts of Tehsildars
for appointing the appellants against those posts. We further direct that for
purposes of seniority the appellants should be placed below last candidate
appointed in 1976, but they will not be entitled to any back wages. The
appellants will be entitled to promotion if otherwise found suitable." The
Respondent thereafter filed an original application before the Karnataka
Administrative Tribunal claiming appointment as Assistant Commissioner although
in terms of the said revised reservation policy she was appointed as a Tehsildar.
The said original application having been dismissed, a Special Leave Petition
was filed thereagainst before this Court which was allowed by an order dated 15th March, 1994 in the following terms:
"The
appellant was admittedly selected and shown in the first list which is upheld
by this Court in Service Commission and Ors. (1990) 3 SCC 157.
In
this view of the matter, we allow the appeal and set aside the order of the
Karnataka Administrative Tribunal. We are informed that the appellant has since
been promoted to Class-I post of Assistant Commissioner (Karnataka
Administrative Service). If no vacancies are available, the State Government
will create a supernumerary post for the appellant's appointment. We further
direct that for the purposes of seniority, the appellant shall be placed below
the last candidate appointed in 1976, but she will not be entitled to any back
wages. The appellant will be considered for promotion if otherwise found
suitable. These directions will be carried out within three months from today.
The
appeal is allowed accordingly. No order as to costs." An application for
review was filed by the Appellant herein inter alia on the ground that she did
not have any legal right to the said post as the State of Karnataka did not intend to give effect to
the additional select list prepared by the Karnataka State Public Service
Commission (Commission), which was dismissed.
The
State of Karnataka thereafter sought for the opinion
of the Commission. The Commission by communication dated 24.6.1995 advised that
as per the Respondent's ranking in the General Merit Category I posts, she
should be considered for the post of Assistant Controller of Accounts which is
a Category I post, as the marks secured by her were below the marks secured by
the candidates selected as Assistant Controller of Accounts. The Respondent did
not accede thereto when such a post was offered to her.
After
an unsuccessful attempt to obtain some order in a contempt proceedings
instituted by her, the Respondent filed a fresh original application before the
Administrative Tribunal which came to be dismissed whereupon she filed a writ
petition before the Karnataka High Court.
We may
at this stage notice that the ground upon which the Respondent's application
was dismissed by the Tribunal inter alia was that one B.N. Mahesh was at S.No. 1
of the said list whereas the Respondent figured at S.No. 2 and the former's
claim for appointment as Assistant Commissioner was thence pending before this
Court. The matter of Shri B.N. Mahesh being Civil Appeal No. 3475 of 1998 was
dismissed by this Court on 22.7.1998 on the ground that he moved the Tribunal
at a belated stage. Taking note of the said fact and interpreting the judgment
and order dated 15th March, 1994, a Division Bench of the High Court allowed
the writ petition filed by the Respondent against the order of the Tribunal
directing the State to implement the order of this Court within four months without
reference to the assessment of merit by the Commission as well as the fact that
the Government had earlier offered appointment to her as Assistant Controller,
State Accounts Department, Group 'A' on the Commission's recommendations.
Mr.
P.P. Rao, learned senior counsel appearing on behalf of the Appellant submitted
that the State intended to implement this Court's judgment dated 15th March,
1994 wherefor only the recommendation of the Commission was sought for and
pursuant thereto and in furtherance thereof the notification dated 14.8.1995
was issued. It was argued that the effect of the order of this Court is to
render the parties to the same position as if the reservation policy was not
amended and if so construed, the Respondent having been placed in the
supplementary list could not have laid any claim for any post in the
Administrative Service.
It was
urged that the merit should be the sole criteria for selection of the
candidates and in that view of the matter, the State cannot be said to have misconstrued
and misinterpreted the judgment of this Court.
Mr.
S.S. Javali, learned senior counsel appearing on behalf of the Respondent, on
the other hand, drew our attention to the prayer made by the Respondent herein
in her application before the Tribunal and submitted that the order of this
Court should be construed in the context thereof. Drawing our attention to the
averments made in the application for review filed by the Appellant herein, it
was contended that therein a similar stand was taken but this Court having
rejected the review application, the Appellant herein cannot now be permitted
to re-agitate the said question once over again.
It is
not in dispute that the Respondent herein had been working from the very
beginning in the Revenue Department. The order of this Court dated 15th March, 1994 as noticed supra should, thus, be
construed in the light of the decision of this Court and the pleadings of the
parties.
For
the said purpose, we may notice the prayers made by the Respondent before the Karnataka
Administrative Tribunal which are as under:
-
" Declare
by the issue of an appropriate order or direction as the case may be, the
action of the State Government in denying the benefits to the applicants
flowing from the decision of the Hon'ble Supreme Court of India in Civil Appeal
Nos. 2270 to 73/87 and connected appeals, as illegal and discriminatory, with a
further declaration that the applicants are entitled to be considered for
appointment to Group A Services (Assistant Commissioners). On the basis of the
first select list prepared by the Karnataka Public Service Commission vide
Notification dated 23.2.1976 published in the Karnataka Gazette dated 26.2.1976
(Annexure A1) and entitled to all consequential benefits, in the interest of
justice and equity.
-
Issue an
appropriate order or direction, as the case may be, directing the State
Government to pass appropriate orders appointing the applicants to Group A
services (Assistant Commissioners), pursuant to the declaration to be granted
as per the above prayer, w.e.f, the dates, the same has become due with all
consequential benefits, in the interest of justice and equity.
-
Pass such orders
just and expedient in the circumstances of the case, including the aware of
cost." Prayers made in the said original application before the Tribunal
must be construed having regard to the pleadings thereof. We have been taken
through the application filed by the Respondent before the Administrative
Tribunal. No statement far less any claim grounded on legal right was raised to
the effect that she was entitled to be appointed as Assistant Commissioner from
the very inception. Such a plea could not have been taken.
In
paragraph 6 of her application, she accepted that her name was included in the
Additional List of Category I Service. In sub-paragraph (e) of the said
paragraph, she moreover accepted that her name had appeared at Sl. Nos. 26 and
5 respectively in Category II Service (Tahsildars) now designated as Group 'B'
Service omitting her name from Group 'A' Service. In sub-paragraph (g) of
paragraph 6 she stated:
"By
order dated 30.3.1990, the Hon'ble Supreme Court of India struck down the
government order dated 23.4.1976. Thus, with the setting aside of the
Government order dated 23.4.1976, the applicants also became entitled to be
appointed to Group 'A' Services on the basis of the first select list (Annexure
A1). The judgment of the Hon'ble Supreme Court of India also ensures to the
benefit of the applicants and accordingly the applicants became entitled to be
appointed to Group A Services w.e.f. the respective dates the Candidates
included in the second list to the Annexure B were appointed with all
consequential benefits except an express benefits denied by the State
Government by order dated 22.5.1990 proceeded to grant benefits only to the
petitioners before the Hon'ble Supreme Court of India" Yet again, in the
Grounds contained in the said application, she merely contended:
"With
the setting aside of the directions, even the deletion of the names of the
applicants from the additional list of Group A services is automatically held
to be illegal and discriminatory" Furthermore, in sub-paragraph (m) of
paragraph 6, she stated:
"The
applicants submit that they too are similarly and equally placed like those who
were Appellants before the Hon'ble Supreme Court, in the matter of appointment
on the basis of first select list (Annexure-A1)" It is, thus, only in the
prayer portion, she prayed for being considered for appointment to Group 'A'
Service (Assistant Commissioner) without there being any requisite pleadings therefor.
She had, thus, never questioned the merit position.
The
Commission issued a notification on 23.2.1976 showing the names of the
candidates who became eligible to hold the posts of Assistant Commissioners
being Category I service. The name of the Respondent did not figure therein.
Her name did not figure even in the posts of Assistant Controllers which were
also Category I posts. Her name appeared at Sl. No. 2 in the Additional List
of Category I service. It is true that having regard to Devin Katti (supra),
the said List was revised but even on revision of the list, her name could have
been placed only below K.C. Ramamurthy who got 871 marks as she got 868 marks.
Even some candidates belonging to the Scheduled Castes category as, for
example, Shri T. Muktamba got higher marks than her i.e. 893 marks. It further
appears that even in the List of Commercial Tax Officers, the last candidate
therein Shri M. Viswanatha who was a General Category candidate got 875 marks.
Thus, there were many persons who were above the Respondent both amongst
General Category as also Reserved Category candidates. Upon revision of the
List, She had, thus, been placed at Sl. No. 26 of Category II Service which
was meant for Tahasildars. It is not in dispute that if the name of the
Respondent was to be included in the Assistant Commissioner from the General
Merit Category, then cases of six more candidates, namely, A.C. Suryaprakash,
C. Vasumathi, V. Mohan Kumar, M. Vishwanatha, K.C. Ramamurthy and B.N. Mahesh,
being above her, were also required to be considered. It is, furthermore, not
in dispute that those who had been offered the post of Assistant Controller of
Accounts in 1993 are currently working as Joint Controller. Only one person, Shri
M.V. Munirathnappa has been promoted as Additional Controller of State Accounts
on 22.5.1997. The merit position of the candidates, as noticed hereinbefore,
had never been questioned and even now has not been disputed. The Respondent,
on her own showing, has been presently working in Karnataka Administrative
Service, Group 'A', Super-Selection Post in the scale of pay of Rs.
13820-17220. There are 62 posts in the Selection Grade and 45 posts in the
Super-Selection Grade. The post of Controller is only one whereas the number of
posts of Additional Controller is 9 and that of Joint Controller is 50.
The
Respondent herself in her additional affidavit stated:
"That
it is directed by this Hon'ble
Court on 15.3.1994
"that for the purpose of seniority, the Appellant shall be placed below
the last candidate appointed in 1976, but she will not be entitled to any backwages".
I submit that the select list of the 1976 Batch in the Administrative Service
(Post Karnataka Administrative Service Group 'A') comprised 15 candidates.
Three of them died, while one did not join service. The service particulars and
promotion accorded to the remaining 11 candidates are indicated in the chart
marked herewith as Annexure R-1. I further submit that the 1976 batch Karnataka
Administrative Service Group 'A' (Junior Scale) Officers were promoted to the
Karnataka Administrative Service Group 'A' (Senior Scale).
Vide
Notification dated 2.9.1983, a copy of which is marked herewith as Annexure
R-2, while I was promoted to Karnataka Administrative Service Group 'A' (Senior
Scale) in 1997, vide Notification dated 10.4.1987 the true copy of which is
marked herewith as Annexure R-3." It is, therefore, evident that it had
never been nor could be her claim that she should be placed in higher grade
ignoring the case of persons similarly situated.
It is
true that the Appellant herein filed an application praying for review of the
said order dated 15th
March, 1994
contending:
"It
is respectfully submitted that the Respondent was only included in the
additional list of Category I in the pre-revised list and was not allocated to
any particular service. The question of appointment of persons included in the
additional list would arise only after exhausting the appointment of all the
selected candidates in the main list and as already stated, the Respondent came
to be included in the list of Category II after the revision taken by the
K.P.S.C. as directed by the State Government at that point of time. It is also
relevant to state here that the Government took a decision not to operate the
Additional List and accordingly the relevant provision providing for
publication of the Additional List as provided in Sub-Rule (4) of Rule 11 of
the 1966 Rules came to be deleted as per the Notification No. DPAR 46, SRR 76 dt.
21.8.76" In the order dated 15th March, 1994, this Court noticed that the Appellant had since been
promoted to Class I Post of Assistant Commissioner. As the Respondent was to
be appointed in the said post with retrospective effect, a direction was issued
to create a supernumerary post therefor as otherwise it was not necessary to
issue any such direction.
Furthermore,
this Court directed that the Respondent should be placed below the last
candidate appointed in 1976 meaning thereby the same post which she had been
holding at the relevant point of time. She was held not to be entitled to any
back wages therefor.
The
judgment of this Court dated 15th March, 1994 must be construed in the
aforementioned backdrop. A judgment, as is well known, is not to be read as a
statute. But, it is also well-known that the judgment must be construed as if
it had been rendered in accordance with law.
In Ramesh
Chand Daga v. Rameshwari Bai [(2005) 4 SCC 772], this Court held :
"A
judgment, as is well known, is not to be read as a statute. A judgment, it is
trite, must be construed upon reading the same as a whole. For the said purpose
the attendant circumstances may also be taken into consideration." [See
also Zee Telefilms Ltd. & Another v. Union of India & Others (2005) 4
SCC 649] In P.S. Sathappan (Dead) By Lrs. v. Andhra Bank Ltd. & Others
[(2004) 11 SCC 672], this Court held :
"The
judgment of this Court must be read as a whole and the ratio therefrom is
required to be culled out from reading the same in its entirety and not only a
part of it." In Gajraj Singh and Others v. State of U.P. and Others [(2001) 5 SCC 762], this Court held:
"A
doubt arising from reading a judgment of the Court can be resolved by assuming
that the judgment was delivered consistently with the provisions of law and
therefore a course or procedure in departure from or not in conformity with
statutory provisions cannot be said to have been intended or laid down by the
Court unless it has been so stated specifically." (1) SC 70, the Court
observed:
"An
order of a court of law and, in particular, a consent order, must be read in
its entirety for the purpose of ascertaining its true intent and purport."
Devin Katti (supra) was not directly applicable to the case of the Appellant.
Therein this Court was concerned with the selection process which started by a
notification dated 23rd May, 1975 which was published on 29th May, 1975 only
for the post of Tehsildars whereas the Respondent herein was selected in terms
of the notification dated 28th November, 1974.
This
Court in the case of the Respondent proceeded on the basis that her case was
covered by Devin Katti (supra) in all force, only for applying the ratio that
after the selection process had started, her status could not have been altered
by the reservation policy. Her name was not in the First List but was in the
Additional List.
Service
jurisprudence evolved by this Court from time to time postulates that all
persons similarly situated should be treated similarly.
Only
because one person has approached the court that would not mean that persons
similarly situated should be treated differently. It is furthermore
well-settled that the question of seniority should be governed by the rules. It
may be true that this Court took notice of the subsequent events, namely, that
in the meantime she had also been promoted as Assistant Commissioner which was
a Category I Post but the direction to create a supernumerary post to adjust
her must be held to have been issued only with a view to accommodate her
therein as otherwise she might have been reverted and not for the purpose of
conferring a benefit to which she was not otherwise entitled to.
It is
furthermore not in dispute that the correct position as regard her ranking
amongst the successful candidates had not been brought to the notice of this
court and if it had been so done, this Court would have found that she was
entitled only to the post of Assistant Controller of Accounts.
It may
be true that in the Appellant's application for review, more or less similar
pleas were raised, but rejected, but, herein the same is not an issue as we are
concerned only with construction of this Court's order dated 15th March, 1994.
Justice
demands that a person should not be allowed to derive any undue advantage over
other employees. The concept of justice is that one should get what is due to
him or her in law. The concept of justice cannot be stretched so as to cause
heart-burning to more meritorious candidates.
Moreover,
at the end of the day, the Respondent has got what could be given to her in
law. As of now, she had already been enjoying a higher scale of pay than what
she would have got if she was to join the post of Assistant Controller. We,
therefore, are of the opinion that interest of justice would be sub-served if
she is allowed to continue in her post and direct the Appellant to consider her
seniority in the Administrative Service in terms of the order of this Court
dated 15th March, 1994 that she would be the last in the seniority list of the
appointees in the post of Category I Assistant Commissioner (Karnataka
Administrative Service).
The
Appeal is allowed to the aforementioned extent. However, there shall be no
order as to costs.
Back
