Purnendu
Mukhopadhyay and Others Vs. V.K. Kapoor and Another [2007] Insc 1070 (12 October 2007)
S.B.
Sinha & Harjit Singh Bedi
[Arising
out of SLP (Civil) No. 145 of 2003] S.B. SINHA, J:
1.
Leave granted.
2.
This case has a chequered history. Appellants herein were appointed as Chargeman
Grade-II. They were, in terms of the Scheme dated 23rd April, 1965, required to
appear in an examination for appointment to the post of Chargeman Grade-II or
Supervisor Grade-A initially. They appeared in the said examination. They were,
however, appointed as Supervisor Grade-A on account of the marginal difference
in the marks obtained by them from the others who were appointed as Chargeman
Grade-II. The Director General on or about 4th May, 1967 taking into
consideration the marginal difference in the marks obtained by the appellants
decided to give another chance to the appellants to appear within six months in
the next examination so as to enable them to be graded as Chargeman Grade-II,
in the event, if they qualify therein. It resulted in issuance of Government
order dated 4th May, 1967 in terms of which the 1965 Scheme was amended as
under :- The Supervisory Apprentices who secure 5% marks less in the
aggregate than prescribed by the Central Selection Board for gradation as Chargeman
Grade II in a particular gradation examination will be graded as Supervisor
Grade A/or equivalent but will be allowed to take another chance at the next
gradation examination and on the basis of their performance may be graded by
the D.G.O.F. as fit for appointment as Chargeman Grade II and appointed as such
with effect from a date after they are so graded in the subsequent gradation
examination.
This
will have retrospective effect to cover the past cases in which the DGOF has
already allowed the Supervisory Apprentices another chance to appear in the
gradation examination. Allegedly, however, the Government of India adopted
a policy of pick and choose and did not grant the benefit of the said Scheme to
which they were otherwise entitled thereto. A.K. Saxena and others filed writ
petition before the Delhi High Court. Appellant herein filed a similar writ
petition before the Calcutta High Court which was marked as CR1671-W/83. On
establishment of the Central Administrative Tribunal under the provisions of
the Administrative Tribunal Act, 1985 those petitions were transferred to the
Central Administrative Tribunal and were marked as TA-1069/86. However, with
effect from 1st
January, 1980 the post
of Supervisor Grade-A and the Chargeman Grade-II were directed to merge. The
Central Administrative Tribunal allowed the said Transferred Application of the
appellants by an order dated 9th July, 1990 directing
:- On the facts and circumstances of this case, we with respect, agree
with the observations of the Supreme Court set out above. We are also of the
view that the respondent authorities, in not calling the applicants to sit in
the examinations held earlier had acted discriminately.
As the
course for the official respondents has admitted that holding of intended
examination is not necessary.
We
direct the respondent authorities not to hold the examination. We also direct
the respondent authorities to refix the respective notional seniority of the
applicants and fix their pay scale and all benefits attached thereto as per
rule on the basis that all the applicants came out successful in the selection
test for promotion to the post of Chargeman Grade II from their respective
dates of examination. But they will not be entitled to any back wages or any
other financial benefit save and except the notional seniority. The applicants
will be entitled to be paid in accordance with the fixed pay scale and all
these directions must be completed within 90 days from date.
As the
present application was filed in the representative capacity by obtaining leave
under Rule 11 of CPC from the Honble High Court on 18-3-83, this decision will be binding on all other persons
similarly situated and similarly affected. The respondents are directive to
give the same benefits to them to avoid future litigation on the same
issue. However, the said direction was partially modified by this Court to
which we would advert to a little later.
The
said order was challenged before this Court. No stay, however, was granted
therein. As the Central Government was not implementing the said order the
present contempt petition was filed.
Appellants
herein also filed an interlocutory application which was marked as IA 3 of 1992
for a direction upon the Central Government not to make any promotion ignoring
the order of the Tribunal dated 9th July, 1990. This Court by its orders dated 21st September, 1992 directed :- Heard learned counsel for both the
parties on IA 3.
Taking
in view, the entire facts and circumstances of this case, we direct Union of
India not to make promotions on the posts of Foreman, Assistant Works Manager
and further higher posts ignoring the judgment of the Central Administrative
Tribunal, Calcutta dated 9th July, 1990 till the final disposal of the present appeal. The appeal
may be listed for disposal in the month of January, 1993..
The
said order passed in IA No.3 of 1992, however, was modified on an application
filed in that behalf by the Union of India.
We may
place on record that another application was also filed on behalf of All India
Association of Non-Gazetted Officers for intervention and direction, whereupon
by an order dated 13th May, 1993 this Court directed :- Union of India has
filed an application for modifying the order dated 21.9.92 stating that this
stay has been causing bottlenecks in the operational system due to the
promotions having been stayed by this Court. Since the appeal has already been
directed to be posted for final disposal, the stay creates difficulty for the
administration to function. We permit the Union of India to make promotions in
respect of the posts above the post of Foreman on according to the rules but
any promotion made will be further reviewed and be subject to the result of the
appeal. IA No. 5 is disposed of accordingly. The Registry is directed to post
this appeal immediately after vacation subject to part-heard. The appeal
preferred by the Union of India was dismissed by this Court by an order dated 5th August, 1993, observing:
Having
heard the learned counsel for the appellant we must confess our inability to
appreciate the attitude of the Union of India for approaching this Court by way
of Special Leave Petition and delay the matters b y another three years.
Appellants contend that by the said order dismissing the appeal preferred by
the Union of India, this Court was alive to the fact that the dispute between
the parties not only related to original appellants/petitioners but also
affected their seniority and promotion occurring during the pendency thereof.
While considering the question of removal of discrimination allegedly meted out
to the appellants and determination of their seniority which was material for
their promotion to higher post, it was observed :-.
Needless
to say that despite appointment of every supervisor Grade A Chargeman
Grade II the discrimination which occurred due to enforcement of the modified
scheme since 1965 permitted only few supervisors Grade A to appear in the next
examination persisted so far those Supervisor Grade A were concerned
who were appointed prior to coming into force of this scheme and were denied
similar opportunity even though they came in field of eligibility. The
injustice arose as, if the policy of permitted Supervisors Grade A to
improve their grade would not have been introduced then the seniority amongst
the Supervisors would have remained the same and those appointed in one year
would have remained senior to those appointed in latter year. With regard
to seniority and the effect on promotion to higher post, this Court observed :-
It is not the appointment of petitioners of Chargeman Grade II from 1980
but also the determination of their seniority which was material as it is
admitted that the higher posts are available for promotion on the basis of
seniority cum merit. The question of seniority therefore was of utmost
importance and unless there was some such difficulty which could not be
resolved the appellant should have taken care to see that the order of the High
Court was complied. The Honble Court further observed:- In any
case the Tribunal in directing the respondents to be granted notional
appointment as Charegeman grade II from the date of their first examination. In
the peculiar circumstances of the case, does not appear to have committed any
error of law. In our opinion, this was the only possible manner in which the
injustice could have been remedied. The Court, however, modified the said
order to the following extent :- In the result the appeal fails and is
dismissed with costs.
It is
however, clarified that the placement of all those supervisor grade A who came
in the field of eligibility namely of securing less than 5% marks in aggregate
fixed for selection as Chargeman Grade II, should be fixed by directing that
they were selected for that post six months from the date of their Gradation
Examination. We may also notice here that the appellants were not to be
granted any back wages in terms of the order of the Tribunal dated 9th July, 1990. They, however, claimed to be
entitled to all the benefits attached thereto including seniority and promotion
to the higher posts.
The
said order, according to them, was partially implemented wherefor two letters
one being dated 4th November, 1993 and another being dated 10th November, 1993
were issued stating :- on the basis that all the applicants came out
successful in the selection test for promotion to the post of Chargeman Gr. II
from their respective dates of examination. But they will not be entitled to
any back wages or any other financial benefits save and except the notional
seniority. It was necessary to firm up the seniority position of the
individuals in the grades of Chargeman Gr. I Assistant Foreman and Foreman as
required by holding review DPCs on the basis of the amended seniority list in the
grade of Chargeman Gr.II as on 1.1.77 The said orders were, however,
withdrawn purported to be on the basis of a Full Bench judgment of the Central
Administrative Tribunal which was rendered in the meanwhile. It was stated :
In
view of the above, the beneficiaries in the case of Purnendu Mukhopadhyay &
Ors. can be allowed notional seniority in the grade of Chargeman Gr. II (Tech)
only, for determining revised date from which presumptive pay should be fixed.
The persons who are granted notional seniority can be superceded by persons
regularly promoted. Later on the said order dated 4th November, 1983 was also withdrawn directing :-
12. Thus the seniority of Purnendu Mukhopadhyay and ors. in the revised
seniority list of Chargeman Gr. II (Tech) will count from the dates when they
were regularly promoted or appointed as Chargeman Gr. II (Tech) according to
recruitment rules. It is not in dispute that one S.K. Ganguly and others
relying on the judgment and order of the Central Administrative Tribunal filed
an Original Application before it. The said O.A was allowed. The order of the
Tribunal in the case of Ganguly was implemented. The Tribunal by reason of the
impugned judgment, however, inter alia placing reliance upon a decision of this
Court in J.S. Parihar v. Ganpat Duggar and others [(1996) 6 SCC 291] and Vijay
Singh, Secretary Home and another v. Mittanlal Hindoliya [(1997) 1 SCC 258]
accepted the said plea of Union of India and inter alia directed :- While
finalizing such revised seniority, for deciding inter se seniority vis-a-viz
the 26 petitioners of OA 789/96, who have been indentified by the official
respondents as similarly circumstance with the successful applicants of TA.
1069 of 1986 (Purnendu and have accordingly been notified as such by the
official respondents through their notifications dated 14.8.85 and 14.11.95
vide Anenxures E and F respectively to OA 789/96, read with D.G.O.F.
Notification dated 23.2.,96, Annexure G in MA 222/1995 it will be necessary
that they are treated as belonging to the group described at para 80(I) of the
Full Bench (PB) judgment dated 22.12.1995, reproduced at para 51(1) above, in
the instant judgment. In other words, they would be in the first category of
employees who were appointed as Chargeman Gr.II prior to 1.1.73. This
Court by an order dated 1st
March, 2007 with a
view to ascertain the correct position in regard to the implementation of the
earlier orders, directed the respondents to file a status report. Pursuant to
the said direction a status report has been filed. In the said status report it
has been accepted that the benefits given to S.K. Ganguly and others have not
been given to the appellants inter alia in view of the pendency of the present
special leave petition as also interpretation on the concept of notional
seniority by the Full Bench of the Central Administrative Tribunal dated 22nd December, 1995.
The
bone of contention of the respondents, therefore, is the judgment of the Full
Bench of the Central Administrative Tribunal dated 22nd December, 1995 as appearing in their affidavit, which is as under:
(i)
The judgment decided the principles of seniority of the various categories of Chargeman
Grade II(T). All the candidates in the present SLP got their notional seniority
prior to 01.01.73 in pursuance of the judgment of the Honble Supreme Court
of India dt. 05.08.1993. Hence they are the first lot of persons for the
purpose of seniority in the psot of Chargeman Grade II(T) as per the judgment
of the Full Bench of the Honble Tribunal and have been given the seniority
in the grade as per sub-para (i) and para 80 of the Full Bench judgment.
(ii)
The judgment of Full Bench had also interpreted the concept of notional
seniority and its consequential benefits in Para
76, 77 & 78 of the judgment of the Full Bench of the Honble Tribunal.
As per the interpretation the notional seniority is used only for determining
the date with effect from which the presumptive pay should be fixed. It does
not give the benefit of seniority. Higher notional seniority cannot be given to
the detriment of others who have been actually promoted earlier. It is not
always necessary that retrospective promotion should also be accompanied by
retrospective seniority. Submissions of Mr. Sushil Kumar Jain, learned
counsel appearing on behalf of the appellants, inter alia are –
(i) In
view of the judgment of the Central Administrative Tribunal as confirmed by
this Court with modification, the appellants were not only entitled to be
appointed as Chargeman Grade-II but also were entitled to promotion to higher
grades and respective notional seniority at each level.
(ii)
Determination of seniority at each grade therefore was material.
(iii)
Although an order of stay was passed by the Central Administrative Tribunal in
OA No. 521 of 1988 but the same related to only paragraph 13 of the judgment of
the Tribunal and not paragraphs 11 and 12 thereof.
(iv)
The appellants were entitled to promotion having regard to the facts that those
who were juniors to them have been promoted in terms of Rule 18.4.3 which reads
as under :- 18.4.3 If the officers placed junior to the officer concerned
have been promoted, he should be promoted immediately and if there is no
vacancy the junior most person officiating in the higher grade should be reverted
to accommodate him. On promotion, his pay should be fixed under F.R. 27 as the
stage it would have reached, had he been promoted from the date the officer
immediately below him was promoted but no arrears would be admissible. The
seniority of the officer would be determined in the order in which his name, on
review, has been placed in the select list by D.P.C. If in any such case a
minimum period of qualifying service is prescribed for promotion to higher
grade, the period from which an officer placed below the officer concerned in
the select list was promoted to the higher grade, should be reckoned towards
the qualifying period of service for the purpose determining his eligibility
for promotion to the next higher grade.
(v)
The contention of the respondents that the employees who had been accorded
notional seniority cannot be equated with those who had been regularly
appointed is unsustainable as the object and purport of the order of the
Tribunal as also of this Court were to remove discrimination meted out to the
appellants by promoting their juniors.
(vi)
The order of the Full Bench dated 22nd December, 1995 is not applicable According to the
appellants, their case falls under category I of the Full Bench judgment.
This
fact has also been accepted by the respondents in their status report. Thus if
the appellants were to be appointed and or promoted as Chargeman Grade-II
before 1st January, 1973 they became seniors to the other employees. As we have
noticed hereinbefore that S.K. Ganguli and others had been given the benefit of
the order passed by the Tribunal. We do not appreciate the stand of the
respondents in this behalf inasmuch as whereas one set of order involving
employees who were similarly situated to those of the appellants, benefits have
been given but the same are being denied to them. Such an action on the part of
the respondents in our opinion is wholly unjustifiable. The judgment of a
court, as is well known, should not be read as a statute. It has to be read in
its entirety. So read, the appellants had become entitled to the grant of
benefits contemplated thereby. There is no reason why the same shall be denied
to them.
[See Ramesh
Chand Daga v. Rameshwari Bai (2005) 4 SCC 772, Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697, Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 and P.S. Sathappan
v. Andhra Bank Ltd. (2004) 11 SCC 672] Our attention has also been drawn to the
fact that apart from S.K. Ganguly and others some other persons who were
similarly situated, namely - Prem Kumar Saha; S.K. Majumdar and Alopi Lal, have
also been granted the same benefits.
In a
case of this nature, in particular having regard to the fact that the
respondents have granted similar benefits to others, we fail to understand as
to how the decision of this Court in J.S. Parihar (supra) and Mittanlal (supra)
could be applicable. The State cannot treat employees similarly situated
differently. It cannot implement the orders in relation to one and refuse to do
so in relation to others. It is also not a case like J.S. Parihar (supra) where
while implementing the orders, a particular stand has been taken by the
employer giving rise to a subsequent cause of action. It is also not a case
where the order of this Court is capable to two interpretations. [See State of Bihar v. Rani Sonabati Kumari AIR 1961 SC 221, State of Kerala v. Unni (2007) (2) SCC 365 and Sneh
Enterprises v. Commissioner of Customs 2006 (7) SCC 714].
For
the reasons aforementioned the impugned judgment cannot be sustained. The
appeal is allowed. We, however, before taking any punitive action against the
contemnors at this stage, would like to issue a direction upon them to fully
implement the orders of this Court as modified by this Court on the same terms
as was done in the case of employees similarly situated. In facts and
circumstances of the case the appellants shall also be entitled to costs which
we quantify at Rs.25,000/-.
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