Rama Rao
& Ors Vs. M.G. Maheshwara Rao & Ors [2007] Insc 872 (27 August 2007)
H.K.
Sema & P.K. Balasubramanyan
[with C.A. No. 7478-7481 of 2003] P.K. BALASUBRAMANYAN, J.
1. By
the judgment under appeals the High Court partly allowed the writ petition filed
before it by the employees in the ministerial cadre of the Karnataka
Administrative Tribunal. Writ Petition Nos.16143-1646 of 1997 challenged the
decision of the Administrative Tribunal dismissing an application filed by them
before the Tribunal. Feeling aggrieved by the decision rendered by the High
Court in the writ petitions both sides are before us with these appeals.
Civil
Appeal Nos.7474-7477 of 2003 is filed by those belonging to the Stenographer
Cadre and Civil Appeal Nos.7478-7481 of 2003 filed by the ministerial cadre.
2. For
convenience, hereafter, the parties are referred to as Stenographers and
Assistants.
3. The
Karnataka Administrative Tribunal was constituted on 6.10.1986. The Government
of Karnataka sanctioned the cadre strength and framed the Cadre and Recruitment
Rules, 1986. The appointments of stenographers were made in the year 1988. The
Government published on 23.9.1992 a new set of draft rules. The stenographers
filed objections to the draft rules. On 31.5.1993 the Government published the
Recruitment Rules.
Though
the stenographers made representations to the Government, their representations
were rejected. Thereupon they filed application Nos.2250-2252 of 1993 and
2253-2258 of 1998 before the Administrative Tribunal challenging the
prescription of degree and test as qualifications for promotion to the post of
Junior Judgment Writer in the Rules. It is seen that the assistants or any one
that would be affected from that branch by an adjudication, were not impleaded
in the proceeding. The Administrative Tribunal allowed the applications and
quashed the Rules in part.
Essentially,
what the Administrative Tribunal did was to alter the qualifications provided
for promotions in the cadre of stenographers by doing away with the higher
qualifications prescribed. The striking down of the Rules was done by a Bench
presided over by the Vice-Chairman of the Administrative Tribunal. Thereafter
the vice-chairman proceeded to promote the stenographers on the basis of the
qualification prescribed by him on the judicial side. The assistants felt
aggrieved by the promotions thus given. They, therefore, moved application
Nos.3585-3592 of 1995 and other connected applications before the
Administrative Tribunal challenging the decision of the Administrative Tribunal
dated 6.7.1994 as also the promotions given to the respondents in those
applications, the promoted stenographers. The applications were opposed on
various grounds. By order dated 21.4.1997, the Administrative Tribunal
dismissed the applications. It was challenged by the Assistants before the High
Court in the writ petitions already referred to. The High Court, by the
judgment under appeal, allowed the writ petitions in part holding that the
Administrative Tribunal had no jurisdiction to alter the qualifications for
promotions as it had done and since promotions were made on the basis of this
unauthorized interference with the Rules prescribing qualifications for
promotions, the promotions were bad. As a logical follow up, instead of setting
aside all the promotions, the High Court set aside only the promotions of
non-graduate stenographers and declined to interfere with the promotions of the
graduate stenographers. The non-graduate stenographers are aggrieved by the
setting aside of the judgment of the Administrative Tribunal and the quashing
of the promotions of non-graduates. The Assistants are aggrieved by what they
call the failure of the High Court to give effect to its own judgment and in
not setting aside the illegal promotions given to all stenographers including
the graduate stenographers. That is how these sets of appeals are before us.
4.
Logically it would be proper to deal first with the appeal filed by the
stenographers against the judgment of the High Court. For, if we were to agree
with the contentions of the appellants therein, the judgment of the High Court
setting aside the order of the Administrative Tribunal will have to be set
aside and in that case no further orders would be required except to restore
the order of the Tribunal. Only if we were to dismiss the appeals filed by the
Assistants and were to uphold the decision of the High Court on the main
aspect, we need consider the grievance of the assistants that the High Court
should have, as a consequence of its own decision, set aside the promotions of
graduate stenographers as well, since those were illegal promotions.
We
will, therefore, first deal with the appeals by the stenographers.
5. It
is argued on behalf of the stenographers that the High Court was in error in setting
aside the order of the Administrative Tribunal dated 6.7.1994 when the
assistants had not taken any step to get that order reviewed or modified. It is
submitted that only after the decision in the case of L. Chandra Kumar vs.
Union of India and others 1997 (3) SCC 261) that the High Court got
jurisdiction to entertain a proceeding against the decision of the
Administrative Tribunal and when the order was passed on 6.7.1994 by the
Administrative Tribunal, only an appeal could have been filed to the Supreme
Court and in that situation, in the subsequent writ petition, the High Court
was not competent to quash the order of the Administrative Tribunal dated
6.7.1994. It is also contended that in any subsequent application filed by the
assistants under Section 19 of the Administrative Tribunals Act (for short
the Act), the Administrative Tribunal could not have considered the
correctness or otherwise of the decision it had rendered earlier and which had
become final and consequently the High Court while entertaining the writ
petition challenging the dismissal of the subsequent application by the
Administrative Tribunal, could not have set aside the order earlier made on
6.7.1994 on the application filed by the stenographers. This contention raised,
was met by the High Court by pointing out that even though the assistants
belong to a different cadre, since there was a confluence of the two streams
leading to the promotional posts, the assistants had locus standi to file an
application under Section 19 of the Act in which, to ventilate their grievances
they could canvass the correctness of the decision earlier rendered on 6.7.1994
by the Administrative Tribunal. The High Court referred to the decision in K. Ajit
Babu and others vs. Union of India and others [(1997) Supp 3 S.C.R. 56] to find
that the proper procedure to adopt by persons situated like the Assistants in
this case and who were not made parties to a prior decision which had effect on
their career, was to move an application under Section 19 of the Act. In that
decision, this Court noticed that even though the judgment of an Administrative
Tribunal may only be a judgment in personam, occasionally, it could also
operate as a judgment in rem and those affected by it had the right to approach
the Tribunal again with an application under Section 19 of the Act when they
are affected as a consequence of the earlier decision and are entitled to seek
reconsideration of the view taken in the earlier decision. The High Court,
following it, held that the assistants had the locus standi to move the
application under Section 19 of the Act before the Tribunal and seek
reconsideration of the earlier decision passed by it without notice to them and
to show that the said order required reconsidered or that it was not a legal or
a proper one. We see no reason not to accept the reasoning adopted by the High
Court. After all, the assistants who were not impleaded in the earlier proceeding,
must have an avenue to ventilate their grievances. This Court has indicated
that that avenue is an approach to the Tribunal and that was in a case in which
the very same Act was involved. This Court had also pointed out, what the
Administrative Tribunal could do in such a situation. If this were not the
position, the assistants would be able to say that since they were not parties
to the earlier proceedings, they were not bound by it and they are entitled to
ignore the decision therein and that the said decision cannot affect them since
it would be a decision that is void in law for non-compliance with the rules of
natural justice. There is, therefore, no grace in the submissions that the
assistants could not have approached the Administrative Tribunal with their
grievance and the Tribunal could not have consider their grievance or gone back
on its earlier decision. We are in agreement with the approach made by the High
Court and the conclusion arrived at by it and hence have no hesitation in
overruling this contention. The argument that the jurisdiction of the High
Court came to be recognized only later, cannot change the situation, since when
the High Court entertained the writ petition it had the jurisdiction to do so
and it had jurisdiction also to consider what was the effect of the earlier
order or the proceeding before it and whether the earlier order was legal and
justified in the context of the decision of this Court in Ajit Babus case
(supra).
6. It
is then contended that the Administrative Tribunal was justified in passing the
order dated 6.7.1994 since the qualifications prescribed for promotion were
unreasonable. According to the stenographers, the Rules clearly provided for
double promotion and since the assistants had not challenged the validity of
the rules either before the Administrative Tribunal or the High Court or in this
Court, the actions taken as a consequence, were also not open to challenge in
the light of the decisions of this Court in Karam Pal and others vs. Union of
India and others (1985 (2) SCC 457) and Mohan Sing and others vs. State of Punjab and others (1995 (4) SCC 151).
7. We
agree with the High Court that when it passed the order on 6.7.1994, the
Administrative Tribunal had acted beyond jurisdiction in prescribing
qualifications of its own while striking down what according to it was
unreasonable provisions. First of all, there is nothing unreasonable
prescribing qualifications of promotion as was done in this case and as rightly
found by the High Court. Secondly, even if the relevant rules were liable to be
struck down, it was not for the Administrative Tribunal to re-enact that Rule
as it thought considered proper. Once that conclusion is reached and as has
been found by the High Court no invalidity could be found in the relevant rules
for promotion, the obvious consequence would be that all the promotions of the
stenographers became illegal. In fact, the High Court in its judgment has
considered the relevant aspects and has come to the conclusion that the
decision dated 6.7.1994 was unsustainable. We do not think it necessary to
reiterate the reasons given by the High Court which has also noticed the
decision of this Court in J. Ranga Swami vs. Government of Andhra Pradesh and
others (AIR 1990 SC 535). We approve of the findings of the High Court.
8. We
also find it somewhat unpalatable that the same vice-chairman, in the absence
of the Chairman, sat on the judicial side, quashed the rule and prescribed his
own qualifications for promotion of stenographers and on the administrative
side implemented that decision and promoted the stenographers. It would have
been better if he had awaited the appointment of a Chairman and left it to the
Chairman to implement the direction issued by the Administrative Tribunal
earlier. A thing that is to be done has not only to be done properly but also
appear to be done properly. But this is only incidental and has no relevance to
the question falling for decision except for the contention that the
Vice-Chairman has no power to appoint, with which we will deal later, if it
becomes necessary.
9.
Suffice it to say that we agree with the conclusion of the High Court that the
decision dated 6.4.1997 rendered by the Administrative Tribunal was totally
unsustainable and the question of promotion has to be on the basis of the Rules
as they stood prior to the interference with it by the Tribunal.
10.
Thus, we find no merit in the appeals filed by the stenographers and the
cancellation of their promotions on the basis they did not possess the
requisite qualifications for promotion as per the Rules.
11. We
then come to the appeals filed by the assistants. Their grievance is that the
High Court having found that the order of the Administrative Tribunal dated
6.4.1997 was unsustainable and having found that the amendments brought to the
rules by it were also illegal and unsustainable, should have followed up that
finding by setting aside the promotions of all the stenographers and ought to
have ordered a fresh consideration of the question of promotions taking into
account both the feeder channels.
We see
considerable force in this submission. What the High Court has done is to try
and avert the cancellation of certain stenographers who had graduate
qualification, a qualification prescribed by the Rules. But having found that
the very order granting promotion, based as it was on a wrong footing and that
required interference in the light of its decision, the High Court ought not to
have shied away from giving effect to its own conclusion. After all, graduate
stenographers, if they are entitled to promotions as per the Rules, would
secure the promotion by the fresh exercise undertaken. We have also indicated
that the whole method adopted by the vice-chairman was not proper and the
promotions were made improperly, was an irresistible conclusion. In the light
of all this, we think that the interests of justice would be sub-served only if
the entire promotions of stenographers made on the basis of the Rules framed by
itself by the Administrative Tribunal on its judicial side are set aside. To
that extent we find substance in the appeal filed by the assistants.
12. We
think that the proper course to adopt is to undertake a fresh exercise of
promoting the officers from both streams in accordance with the Rules framed in
that regard. But as the High Court held, the stenographers who had been
promoted and whose promotions have now been cancelled, need not be visited with
the penalty of having to refund the higher salaries and allowances they have
received in the promotional posts. Therefore, even while cancelling all the
promotions and directing a fresh exercise to be undertaken, we direct that no
recovery shall be made from the salaries paid to the stenographers in regard to
the period they have worked in their promoted posts on the ground that their
promotions have now been quashed.
13. In
the result, we dismiss Civil Appeal Nos.7474- 7477 of 2003 and allow the Civil
Appeal Nos.7478-7481 of 2003. We substantially affirm the decision of the High
Court but set aside in that part of it by which it declined to set aside the
promotions of graduate stenographers. We direct the undertaking of a fresh
exercise regarding promotions of those who are qualified in accordance with the
Rules by the concerned as expeditiously as possible. We direct that there shall
be no recovery from the salaries and allowances paid to the stenographers whose
promotions are cancelled by the High Court and by us while they worked in their
promoted posts. The parties are directed to suffer their respective costs in
this Court.
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