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CASE NO.: Contempt Petition (civil)  248 of 2007

PETITIONER: Promotee Telecom Engineers Forum & Ors.

RESPONDENT: D.S. Mathur, Secretary,Department of Telecommunications

DATE OF JUDGMENT: 25/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T CONTEMPT  PETITION (C) NO.248 OF 2007 IN  I.A. NO. 16     IN  CIVIL APPEAL NO. 4339 OF 1995

V.S. SIRPUKAR, J

1.      This is a Contempt Petition field by Promotee Telecom Engineers  Forum and others.  They complain that the Department of  Telecommunications has flouted the judgment and directions dated  28.9.2006.  The observations on which the petitioners rely are as follows:

       \023The question then arises as to whether the applicants can  claim the protection of their seniority and consequent  promotion on the basis of observations and the clarification  contained in the judgment of this Court reported in (2000) 9  SCC 71.  Having considered all aspects of the matter, we are  satisfied that those whose cases stand on the same footing  as that of Parmanand Lal cannot now be adversely affected  by re-determination of their seniority to their disadvantage  relying on the later judgment of this Court in C.A. No. 4339 of  1995 reported in (1997) 10 SCC 226 (supra) as affirmed by  this Court in its judgment reported in (2000) 9 SCC 71  (supra).\024  

2.      The petitioners rely on the further directions given by the Court.   They are to the following effect: \023We, therefore, direct that such of the applicants whose  seniority had been determined by the competent authority,  and who had been given benefit of seniority and promotion  pursuant to the orders passed by Courts or Tribunals  following the principles laid down by the Allahabad High Court  and approved by this Court, which orders have since attained  finality, cannot be reverted with retrospective effect.  The  determination of their seniority and the consequent promotion  having attained finality, the principles laid down in later  judgments will not adversely affect their cases.

This Court has clearly clarified the position in its aforesaid  judgment.  The observations made by this Court while  disposing of the appeal of Parmanand Lal are also pertinent.   This Court clearly laid down the principle that the seniority  fixed on the basis of the directions of this Court which had  attained finality is not liable to be altered by virtue of a  different interpretation being given for fixation of seniority by  different benches of Tribunal.  Consequently, the promotions  already effected on the basis of seniority determined in

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accordance with the principles laid down in the judgment of  the Allahabad High Court cannot be altered.

Having regard to the above observations and clarification, we  have no doubt that such of the applicants whose claim to  seniority and consequent promotion on the basis of the  principles laid down in the Allahabad High Court\022s judgment in  Parmanand Lal\022s case have been upheld or recognized by  Court or Tribunal by judgment and order which have attained  finality will not be adversely affected by the contrary view now  taken in the judgment reported in 1997(10) SCC 226.  Since  the rights of such applicants were determined in a duly  constituted proceeding, which determination has attained  finality, a subsequent judgment of a Court or Tribunal taking a  contrary view will not adversely affect the applicants in whose  cases the orders have attained finality.  We order accordingly.

Before parting with this judgment we may observe that we  have not laid down any principle or law having universal  application.  We have only clarified and given effect to an  earlier judgment of this Court rendered in an extraordinary  situation.\024

3.      The above mentioned observations and directions were issued  at  the instance of the Promotee Telecom Engineers Forum and Ors.  (petitioners herein). 4.      The petitioners contend that all of them (45 in number) would be  covered by these directions in as much as their claim to seniority and  consequent promotion was finally recognized by the Tribunal and or the  Court earlier and as such that claim could not be adversely affected only  because of the judgment reported in 1997(10)SCC 226.  The  aforementioned directions were passed in I.A. No. 16 in Civil Appeal No.  4339 of 1995 which was filed by the present Contempt Petitioners.   5.      In their petition, the petitioners have made the reference to the rules  called Telegraph Engineering Service Class-II Recruitment Rules, 1966  framed in exercise of powers conferred by the proviso to Article 309 of the  Constitution of India and to the instructions contained in paragraph 206 of  the Post and Telegraph Manual (P&T Manual), Volume IV.  It is then  asserted that as per these rules, those who had passed the departmental  qualifying examination earlier were ranked senior as a group to those who  passed the examination subsequently.  The change brought in by 1966  Rules was also referred to.  A reference is then made to the writ petition   filed by one Parmanand Lal of 1966 batch and Brij Mohan of 1965 batch  who had qualified in the examinations held in 1974 complaining against  their placing in the eligibility list below the last man who qualified the  examination in 1975.  It is then stated that the High Court of Allahabad  allowed the writ petition granting relief to Parmanand Lal and Brij Mohan.   The Judgment of the Allahabad High Court was challenged by Special  Leave Petition filed by Union of India which was dismissed by this Court. 6.      The petitioners then assert that they had obtained similar orders  from various Benches of the Central Administrative Tribunal based on the  principles laid down by the High Court of Allahabad and those judgments  had attained  finality in as much as in most cases they were confirmed by  this Court and in  some other cases the department did not prefer any  appeal against the order of the Tribunal.  The petitioners then assert that  they were given the benefit of seniority applying the principles laid down in  Parmanand Lal\022s case and their seniority in the cadre was fixed on the  basis of the order in which they had passed departmental examination and  as such they were placed above Mr. M.P. Belani, Mr. B.C. Biradar and Mr.  A.V. Kulkarni respondents herein.

7.      The petitioners then refer to the judgment delivered by this Court on  26.4.2000 in Union of India vs. Madras Telephone SC & ST Social Welfare  Association reported in 2000(9) SCC 71 wherein this Court had taken a  view whereby this Court did not approve of the view of the Allahabad High

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Court and held that the statutory rules alone would govern the preparation  of eligibility lists and  the instructions in paragraph 206 of the P&T Manual  would be of no consequence.   The petitioners, however, assert that this  Court was pleased to protect those persons like the petitioners herein who  had already obtained the judgments in their favour and which judgments  had obtained finality.  The petitioners then assert that in the year 2001  when the seniority lists were revised, the department protected the  seniority of Parmanand Lal by placing him above Shri Biswanath Pradhan  who had passed the examination after Shri Parmanand Lal.  They,  however, further complain that the same principle was not applied and all  the petitioners were superseded by various persons including Shri M.R.  Belani, Shri B.C. Biradar and Shri A.V. Kulkarni who had passed the  examination after the petitioners. 8.      The petitioners then make a reference to the application for  clarification being I.A. No. 16 in Civil Appeal No. 4339 of 1995 which was  allowed by the Court by its detailed order dated 28.09.2006.   9.      It is further complained that the respondent department did not make  any attempt to implement the said judgment dated 28.09.2006 and  therefore the petitioners were constrained to send representations dated  16.10.2006 and 15.01.2007 explaining to the Department that their  seniority was required to be fixed above Shri M.R. Belani, Shri A.V.  Kulkarni and Shri B.C. Biradar. 10.     It is then complained that the department passed an order dated 20th  January, 2007 wherein the petitioners were totally deprived of the seniority  to which  they were entitled.  In that, they were given changed seniority  number but in effect, they were continued to be shown junior to Shri M.R.  Belani, Shri A.V. Kulkarni and Shri B.C. Biradar who had superseded  the  petitioners in the revision of seniority lists in the year 2001.  According to  them, it was therefore that the order dated 20.01.2007 was necessitated.   In paragraph 14 of the Contempt Petition, the petitioners have shown the  example of  Shri A.S.  Choudhary as to how he was superseded by Shri  Belani  who was shown senior  to the  petitioners.  Similarly, the petitioner  also  gave an example of Shri Rajender Prasad as well as Shri Anil Gupta  in the similar manner  being shown junior to Shri B.C. Biradar and Shri  A.V. Kulkarni respectively. 11.     A reference was then made to the contempt petition  being contempt  petition no. 36 of 2007 which was disposed of by this Court on 12.03.2007  with a direction that the respondent department to disclose the reasons for  changing the seniority lists in the manner in which it has been done and to  respond to  their representation made by the petitioner.  It is then pointed  out that the Office Order came  to be issued dated 30th March 2007 by  respondent holding that the benefit of the order of this Court would be  admissible only to the applicants who were parties before this Court.  The  petitioners, therefore, contended that the respondents by their  interpretation restricted the scope of the judgment and directions of the  order passed by this Court nullifying the earlier protection granted by this  Court to the petitioners and that this action is a deliberate, contumacious  and willful disobedience of the judgment of this Court.  The petitioners  have made a reference to a letter dated 19.04.2007 to the respondent  department requesting to re-consider the above mentioned letter dated  16.04.2007 wherein it was explained that the petitioners\022 seniority was  liable to be protected as per the order passed by this Court from time to  time and more particularly in its last order.  However, the department by its  letter dated 04.06.2007 stated that the issues raised had already been  taken into consideration by it and thereby refusing to act on the letter dated  19.04.2007.  In this view of the matter, the contemnors contended before  us that the department has committed contempt of court.  They also pray  for immediate directions regarding the restoration of their seniority  following the principles laid down by Allahabad High Court Judgment in  Parmanand Lal\022s case  as approved by this court that is to say, in  accordance with the year  of passing of their departmental examination. 12.     The contempt application is opposed on behalf of the department  and the department has filed the detailed counter. 13.     Learned counsel for the respondent contends that the respondent  had sought the legal advise and on that basis they have implemented the

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order passed in respect of the petitioners herein.  According to the  Department they have re-arranged the seniority and that is how the  petitioners have been put at the higher position in the seniority-list.   Learned counsel also urged that this Court by its order dated 12.3.2007  had dismissed the Contempt Petition with the direction to respond to the  representations dated 16.10.2006 followed by a reminder within six weeks.   This Court had left it open to the petitioners to take appropriate action in  law if they felt aggrieved by the order passed on those representations.   Accordingly, the learned counsel pointed out that the representations were  disposed of and, therefore, there was no question of any contempt having  been committed and if petitioners felt aggrieved, they ought to have  challenged the orders passed by the Department disposing of the  representations by way of an Original Application before the Central  Administrative Tribunal as it amounted to a fresh cause of action. 14.     We were taken through the records of the earlier orders passed by  this Court and it was tried to be justified that the seniority-lists were  correctly prepared and the seniority was also correctly fixed.  However, it  was admitted and asserted before us that according to the Department  S/Shri Belani, Biradar and Kulkarni, who were junior to the applicants in  the seniority-list 1-17 issued in pursuance of the Allahabad High Court  judgment dated 20th February, 1985, have become senior to the applicants  in the seniority-list 1-5 issued as per the guidelines of this Court contained  in the order dated 26.4.2000 in CA No.4339 of 1995 in which the criteria  for fixation of seniority was recruitment year.  In paragraphs (iii) to (xvii) it is  asserted as under: \023This Hon\022ble Court in its order dated 28.9.2006 in IA No.16 in  CA 4339 of 1995 has observed that they have not laid down  any principle of law having universal application.  It means that  the entire seniority list prepared on the basis of Recruitment  Year as per the direction contained in this Hon\022ble Court\022s  order dated 26.4.2000 in CA No.4339 of 1995 stands.  This  Hon\022ble Court in its order dated 28.9.2006 has directed to  ensure that the applicants do not suffer adversely due to  implementation of this Hon\022ble Court\022s judgment dated  26.4.2000 in CA 4339 of 1995 and that has been ensured by  the implementation orders dated 21.1.2007 and 9.3.2007.\024

After this a table has been given wherein S/Shri Belani, Biradar and  Kulkarni have been shown seniors to all the applicants.  It is then asserted  at the end of the table: \023From the chart given above it is clear that Shri Belani/Biradar/  Kulkarni  are senior to all the applicants in respect of  Recruitment Year and, therefore, they are senior to the  applicants in the seniority list prepared on the basis of the  Recruitment year as per the guidelines of this Hon\022ble Court in  their order dated 26.4.2000 in CA No.4339/1995 and in their  judgment dated 28.9.2006, This Hon\022ble Court has clearly  stated in last para of the judgment that \023before parting with this  judgment we may observe that we have not laid down any  principle or law having universal application.  We have only  clarified and given effect to an earlier judgment of this court  rendered in an extraordinary situation\024.  From the position as  explained above the order dated 28.9.2006 of this Hon\022ble  Court has been fully complied with by the respondent and  there is no deliberate and willful disobedience of the judgment  of this Hon\022ble Court.  Therefore, the claim of petitioners  regarding seniority at par with Shri Belani/Biradar/Kulkarni is  baseless and devoid of merits.  Accordingly the  representations of the petitioners have been disposed of by  letter dated 10.4.2007.\024

From this counter it is clear that inspite of the fact that the petitioners\022  seniority was finally decided by the judgment in Parmanan Lal\022s case and  the petitioners\022 claims were also accepted by the various courts which  verdicts had become final, yet the respondent has moved on the basis of

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later judgment of this Court dated 26.4.2000 interpreting it in its own  manner.  The interpretation which has been put forward  by the  Government is that the advantage of the judgment was available only to  those employees who were parties to that particular petition.   15.     It is obvious that a completely wrong view has been taken by the  Government.  It was specifically held by this Court in its order dated  28.9.2006 that such of the employees, whose claims for the seniority on  the basis of the qualifying year had become final because of the orders of  the courts, should not be disturbed on account of its subsequent judgment  dated 26.4.2000.  There can be no doubt and it is also admitted that all the  applicants were senior to S/Shri Belani, Biradar and Kulkarni on the basis  of their having passed the examination earlier in the year 1974 or so.   Learned counsel also agreed that in the seniority-list, based on the  judgment of the Allahabad High Court, the applicants were senior whereas  S/Shri Belani, Biradar and Kulkarni were juniors because they had passed  the examination later on, though they  were senior in service to the  petitioners.  Once this Court, in its order dated 28.9.2006 had declared that  the earlier seniority gained on the basis of the court\022s orders was not to be  disturbed, the respondent-Government was bound to keep the seniority of  the applicants untouched.  It has been argued before us that their numbers  in the seniority were improved.  However, we cannot forget the fact that  S/Shri Belani, Biradar and Kulkarni were placed above these applicants  which is clear from the table given at the end of para (iv) of the counter  affidavit.  This could not have been permitted and it was indeed not  permitted by this Court.  We cannot accept the so-called interpretation put  forward by the respondent on the order that the benefit of the judgment of  this Court would be available only to those who were parties in that  particular appeal.  Such is not the import at all.  The observations of this  Court in order dated 28.9.2006 are extremely clear. 16.     It is nowhere asserted by the respondent that the rights of the  petitioners were not finally crystallized by the orders of the Tribunal and/or  courts.    Indeed that could not be the position as otherwise the petitioners  could not have been put above S/Shri Belani, Biradar and Kulkarni.  It may  that the seniority of the applicants was restored and was placed at the  same place in the earlier seniority-list, however, that by itself cannot be a  proper implementation since the seniority of S/Shri Belani, Biradar and  Kulkarni was not only improved but they were rendered senior to all the  applicants which was not the position earlier.  It is, therefore, clear that the  order of this Court dated 28.9.2006 has been clearly breached.  The so- called interpretation put forth by the respondent is wholly incorrect.   17.     We would have ordinarily taken a very strict view of this obvious  breach committed.  However, considering that the matter is very old and is  also a complicated one, there can be a scope for misunderstanding of the  order of this Court.  We, therefore leave it at that. 18.     We are not impressed at all by the contention of the learned counsel  appearing on behalf of the respondent that since the respondent has  passed the orders disposing of the representations of the petitioners, the  only way left for the petitioners was to challenge the same by way of an  independent Original Application before the Tribunal.  It is more than a  decade that the petitioners are fighting for their rights.  Their rights had  already been crystallized by various orders passed by the Tribunals and  the courts which fact is not denied by the respondent.  On the top of it, the  petitioners were again required to come before this Court by way of an  Interim Application being IA No.16 and that has resulted in denial of the  fruits of the orders which were passed in their favour by the Tribunals and  the courts.  Under such circumstances, to push them again to file Original  Application challenging the obviously erroneous orders passed by the  respondent disposing of the representations of the petitioners would be a  travesty of justice.   19.     We, therefore, direct that the respondents shall re-arrange the   seniority in terms of the principles laid down in Parmanand Lal\022s case  restoring their earlier position and shall not put any employee over and  above the present petitioners on the basis of the seniority in service in the  entry year, more particularly S/Shri Belani, Biradar and Kulkarni shall not  be put over and above the petitioners herein.  This shall be done within 8

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weeks from the date of this judgment. 20.     In the result the present petition is allowed.  However, in the  circumstances we pass no order as costs.