REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5236 OF 2008

Dir., Cent. Marine Fisheries Res. Inst. & Ors. … Appellants

Versus

A. Kanakkan & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Indian  Council  of  Agricultural  Research  (ICAR)  is  a  society  

registered  under  Societies  Registration  Act,  1860.   It  is  an  apex  

Agricultural  Scientific  Research Organisation.   It  has a network of  

Research Institutes/ National Bureau, National Research Centres and  

Project Directorates.  It has 47 Research Institutes, 5 National Bureau,  

26  National  Research  Centres,  10  Project  Directorates,  594  Krishi  

Vigyan Kendras and 73 All India Co-ordinated Research Projects.

2. First  Appellant  herein  is  the  Director,  Central  Marine  Fisheries  

Research Institute being affiliated to ICAR.  Respondents herein, who are  

four  in  number,  were  appointed  in  the  post  of  ‘Computers’  under  a  

functional group known as ‘Laboratory Technician’ (in the scale of pay of  

Rs.330-560).   First  respondent  was  appointed  on  1.3.1972,  second  

respondent  was  appointed  on  10.2.1975  and  the  third  respondent  was  

appointed on 23.4.1976.   

3. Indisputably  ICAR,  despite  recommendations  of  the  Third  Pay  

Revision Commission, granted a scale of pay of Rs.425-600/-.   

We may, however, notice that the contention of the appellant in this  

connection is that the pre-revised scale of pay for the holders of the post of  

Computer was Rs.160-300/-.  The said scale of pay was revised to Rs.330-

560.  They were appointed as direct recruits as Technical Assistants (T-II-3)  

in the pay scale of Rs.425-700 on or about 18.5.1987.  The said posts were  

under the functional  group “Field/Farm Technician” of Technical  Service  

Rules of ICAR.   

Relying on or on the basis of the decision of the Andhra Pradesh High  

Court,  respondents  herein filed an original  application  before the Central  

Administrative  Tribunal  in  1988.   The  said  application  was  dismissed  

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opining  that  they  were  not  entitled  thereto  as  the  classification  of  two  

categories was not unjust.  It was furthermore held :

“I am of the view that the application in respect of  the relief  sought in this  case for  the period they  were when they were made Technical Assistant is  hopelessly belated.  The judgment of the Andhra  Pradesh High Court does not give them any right  to make this claim because they have ceased to be  Computor  long  back.   There  cannot  be  a  retrospective revival of a grievance which was not  felt when the alleged discrimination was in force.  That judgment could have helped them if on the  date  they  filed  this  application  they  were  Computors and suffered such grievance.”

4. It has not been denied or disputed that the said matter was not carried  

forward  further.   It,  however,  appears  that  the  Central  Administrative  

Tribunal, Cuttack Bench, Cuttack on an application filed by the Central Rice  

Research Institute in its judgment dated 6.3.1994 passed in OA No.182 of  

1991, relying on or on the basis of the decisions of the other benches of the  

Central Administrative Tribunal,  as also that of the Andhra Pradesh High  

Court, held :

“To sum up, all the basic issues involved in this  case  have  already  been  addressed  by  earlier  judicial  pronouncements  and  there  are  no  new  insights to be had or any fresh inputs to be made,  and ipso facto, no new conclusions to be drawn.  What is crystal clear is that complete jurisdiction  exists for accepting the prayer of the applicants in  

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this  case.   It  is,  therefore,  directed  that  the  applicants,  S/Shri  Bibhuti  Bhusan Nayak, Madan  Mohan Das and Akhaya Kumar Mishra be placed  in  the  pay scale  of  Rs.425-600 with  effect  from  1.1.1973 or from the actual date of their respective  appointment  to  the  post  of  Computors.   Further  they should be placed in Category-II-T (iv) in the  scale of Rs.550-900 with effect from 1.10.1975 or  from  the  date  of  their  respective  appointment.  This  part  of  the  direction  of  their  placement  in  relevant  pay  scales  will  be  completed  within  60  days  of  the  date  of  receipt  of  a  copy  of  the  judgment.  The arrears on account of the different  in  pay-scale  that  may  become  due  to  these  applicants as a result of the revised placement in  the  scales  as  indicated  above,  will  be  calculated  and disbursed to them within 90 days from the date  of receipt of a copy of the judgment.”

5. Appellant No.2 filed a Special Leave Petition thereagainst before this  

Court which on grant of leave was registered as Civil Appeal No.6673 of  

1997 (arising out of SLP (C) No.23741 of 1995).  By a judgment and order  

dated 26.9.1997, the said appeal was disposed of, stating :

“The learned counsel has invited our attention to  Rule  5.1  of  the  said  Rules  which  provides  for  initial  adjustment  for  existing  employees  and  submits that in view of the said rule on October 1,  1975, the respondents could only be fixed in the  pay  scale  of  Rs.425-600,  either  in  category  I-T  (III)  or  in  Category  – II-T (III)  depending upon  their  qualifications  and  that  the  next  scale  of  Rs.550-900 falling in Category – II-T (IV) could  be given to them only by way of promotion after  

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the initial fitment had been made with effect from  October 1, 1975.”

6. Appellant  No.2  circulated  the  said  judgment  of  this  Court  to  its  

affiliated units.  Indisputably having regard to the intimation received by the  

appellant  No.2,  various  office  orders  were  issued  in  between  the  period  

10.8.2001 and 19.9.2003 whereby respondents were granted the benefit of  

the said scale of pay of Rs.425-600 w.e.f 1.1.1973 on and from their date of  

their appointment.

Some observations were made in relation thereto.  The question is said  

to have been re-examined by the appellant No.2 and it was allegedly found  

that the said office orders have been issued without obtaining the approval of  

the  competent  authority.   On  the  aforesaid  premise,  the  aforementioned  

office  orders  dated  10.8.2001,  7.6.2003  and  19.9.2003  were  withdrawn,  

stating :

“As  per  the  instructions  received  from  Council,  this  office  order  No.27-3/94-Adm.  dated  07.06.2003  placing  the  following  technical  personnel in the grade of T-II-3 in the pay scale of  Rs.425-700  w.e.f.  01.10.75  is  hereby  withheld  until further orders :

1. S/Shri A. Kanakkan, T-5

2. S. Haja Najeemudeen, T-5

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3. P.L. Ammini, T-5

This  issues  with  the  approval  of  the  Director, CMFRI, Cochin.”

A representation was made by the respondents which, by reason of an  

order dated 15.6.2006, was rejected, stating :

“This  reference  to  his  representation  dated  08.05.2006  Shri  S.  Haja  Najeemudeen,  T-5  (Technical Officer) is informed that the Competent  Authority  in  the  Council  has  considered  the  proposal  regarding  placement  of  the  erstwhile  Comutors of CMFRI in the pay scale of Rs.425- 700 w.e.f. 01.01.75 and conveyed its decision vide  letter  No.3(31)/01-1A  Pt.III  dated  04.05.2006  as  under :-

‘That the posts of Computors/Sr. Computors  were created in the pay scale of Rs.150-240  whereas some posts were created in the pay  scale  of  Rs.168-300  (2nd Pay  Commission  scale).  The 3rd Pay Commission revised the  pay scale  of  all  these  posts  to  Rs.330-560  w.e.f  01.01.1973.   Subsequently,  the  Ministry  of  Finance  approved  higher  scale  of Rs.425-600 for such of the posts which  were created in the pay scale of Rs.168-300.  The proposal of the Institute does not merit  reconsideration in view of the fact and also  since the employees have lost their plea for  higher   pay   scale   of   Rs.425-600/-  long  back.’ ”

7. Aggrieved  by  and  dissatisfied  therewith,  respondents  filed  another  

original application before the Central Administrative Tribunal, Ernakulam  

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which was marked as 642 of 2006.  By reason of an order dated 5.12.2007,  

the said application was allowed.  Upon consideration of the pleadings of the  

parties, as also the materials brought on record, it was held :

“Though elaborate pleadings have been advanced  by the respondents with reference to the powers of  the Director General, ICAR in the subject matter  of the Division, we are of the view that all those  contentions  are  irrelevant  and  have  been  raised  only  to  justify  the  stand  now  taken  and  have  absolutely  no  basis.   The  respondents  are  now  denying  any  knowledge  of  grant  of  higher  pay  scale  in  other  institutions  but  they  have  no  explanation to offer about the Annexure A-2 letter  dated 15.01.1998 issued by them to all the Director  forwarding the Hon’ble Supreme Court’s judgment  stating  that  the  benefit  of  initial  fitment  of  the  existing employees is to be given as per Rule 5.1  of  the  Technical  Service  Rules  and  that  further  benefits would be given only as per TSR and the  judgment  has  been  forwarded  to  the  concerned  Directors which admittedly imply that it has to be  implemented  in  letter  and  spirit.   Evidently,  the  matter  was  left  to  the  Directors  as  competent  authorities  to  implement  the  orders  in  their  institute.   No  authority  vests  in  Government  or  ICAR to refuse to implement the directions of the  Apex  Court.   This  letter  only  clarified  that  the  benefits has to be granted as per TS Rules.  It is  really unfortunate that the HQrs of the ICAR are  now taking a stand that they have no knowledge of  the follow up action taken by the various Institute  and  even  going  to  the  extent  of  stating  that  the  Hon’ble  Supreme  Court  did  not  give  any  such  direction.”

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8. Noticing the decision of this Court, it was opined that the appellants  

cannot deny grant of benefit to one group of employees having conferred the  

same to the other group of employees in terms of the order passed by the  

Andhra  Pradesh  High  Court  and  the  Chandigarh  Bench  of  the  Central  

Administrative Tribunal.  It was furthermore observed :

“In  fact  the  applications  in  OA No.182 of  1991  before the Cuttack Bench were also in the lower  scale  of  Rs.150-300  at  the  time  of  their  appointment.  Besides it  is seen that two distinct  scales  existed  only  upto  third  CPC.   The  Third  CPC  had  revised  the  pay  scale  of  both  and  introduced  a  unified  scale  of  Rs.330-560  which  was the scale of approached by the Minister of the  respondents in Annexure A-9 is thus not factually  correct.”

As discussed above, all the grounds taken by the  respondents  are  found  to  have  no  merit  being  factually incorrect and legally unsustainable.”

9. A  writ  petition  was  filed  thereagainst  which  by  reason  of  the  

impugned judgment has been dismissed, stating :

“The claim of similarly placed persons was upheld  by  the  Andhra  Pradesh  High  Court  in  W.P.  No.5741/1979.  W.A. No.1474/1986 filed against  that judgment was also dismissed by the said court.  The respondents therein filed SLP No.23741/1995  before  the  Apex  Court  and  the  Civil  Appeal  No.6673 of 1997 arising out of that SLP was heard  and dismissed (sic) by the Apex Court.  Relying on  the above decisions, the CAT allowed the OA.”

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10. Mr.  Amarendra  Sharan,  learned  Additional  Solicitor  General  for  

India, appearing on behalf of the appellants, would contend :

1) The  Order  dated  17.8.1989  passed  by  the  Central  Administrative  

Tribunal  would  operate  as  a  bar  to  filing  of  the  second  original  

application; the former having been dismissed and attained finality.

2) Respondents having been appointed in the scale of pay of Rs.130-300  

and not in the scale of pay of Rs.160-300, they were not entitled to the  

revised scale of pay of Rs.425-600.

3) Office orders purported to have been issued by the first respondent in  

terms of the judgment dated 26.9.1997 passed by this Court in Civil  

Appeal No.6673 of 1997 could not have been issued without approval  

of the competent authority.

4) In  any  event,  respondents  having  joined  the  posts  of  Laboratory  

Technician on 18.5.1977, they could not have obtained the benefit of  

the revised scale of pay as a ‘Computor’.

11. Mr.  Paikeday,  learned  senior  counsel  appearing  on  behalf  of  the  

respondents, on the other hand, urged :

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i) Respondents, being holders of post-graduate degree in Mathematics,  

were entitled to the scale of pay of Rs.160-300 and, thus, they should  

have been placed in the scale of pay of Rs.425-600 from the very  

beginning.

ii) Although  the  original  application  filed  by  the  respondents  was  

dismissed by the Central Administrative Tribunal by its order dated  

17.8.1989, a fresh cause of action having arisen in the light of the  

judgment of this Court passed in Civil Appeal No.6673 of 1997, the  

principle of res judicata cannot be said to have any application at all.

12. Principle  of  res  judicata  concededly  would  apply  to  proceedings  

initiated before the Central Administrative Tribunal.  If the said principles  

were applicable,  the bar  to maintain  a  fresh application  on the self-same  

cause of action would attract provisions of Section 12 of the Code of Civil  

Procedure or the general principles of res judicata.

13. It  is,  however,  not  denied  or  disputed  that  relief  to  the  persons  

similarly  situated  had been granted by the  Cuttack  Bench of  the  Central  

Administrative Tribunal.  The decision of the said Tribunal was upheld by  

this Court.  It is only pursuant to or in furtherance of the directions issued by  

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this Court, appellant No.2 issued a circular letter which is to the following  

effect :

“S/Shri S. Haja Najeemudeen, T-4, V.P. Annam,  T-6, C.J. Prasad, T-5, and P.L. Ammini, T-5 have  represented  the  Deputy  Director  General  (Fisheries),  ICAR for  of  CMFRI,  Cochin  as  has  already been done by the Director, IVRI in respect  of the Computors employed at IVRI.

The whole representation was discussed with you  in  the  meeting  with  Dy.  DG  (Fisheries)  during  your visit  to Delhi  in connection with Director’s  Conference.   It  was  explained  that  the  ICAR  circulated  the  judgment  of  the  Hon’ble  Supreme  Court  in  Civil  Appeal  No.6673  in  the  case  of  ICAR Vs. Shri Bibhuti Bhushan Nayak and others  to all the Directors of the Institutes for guidance in  such cases at their respective institutes.  It was on  the basis of this judgment that the Director, IVRI  allowed the pay scale of Rs.425-600 to IVRI Sr.  Computors  in  the  scale  of  Rs.330-560  w.e.f.  01.01.73 and they were placed in the grade of T-II- 3  w.e.f.  01.10.75  as  per  rule  5.1  of  Technical  Service Rules.

As  decided  in  the  meeting,  I  am  enclosing  herewith a copy of the ICAR letter No.3.6/89-Estt.  IV  dated  15.01.89  along  with  a  copy  of  the  judgment  of  the  Hon’ble  Supreme  Court  for  considering the representation of all the 4 technical  officers listed in para 1 above, as the Appointing  Authority  in  accordance  with  the  Technical  Service Rules.  A copy of the Office Order dated  16.04.1999  issued  by  IVRI  is  also  enclosed  for  consideration.

This has the approval of Dy. Director General (Fy)  ICAR.”

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Pursuant to the aforementioned directions only, officer orders dated  

18.10.2001, 7.6.2003 and 19.9.2003 were issued

14. It  is  one  thing  to  say  that  an  independent  claim  made  by  the  

respondents were denied on the ground of delay and latches on their part, but  

it is another thing to say that a benefit granted to them would be withdrawn  

on the ground that the office order had been issued without any jurisdiction.  

When a fresh cause of action arises, the principles of res judicata, it is trite,  

would have no application.   

15. The short question which arose for consideration before the Tribunal  

was  as  to  whether  the  appellants  were  justified  in  withdrawing  the  

aforementioned  order  dated  7.6.2003,  despite  the  order  dated  17.8.1989  

passed by the Central Administrative Tribunal.

16. We may at the outset place on record that whereas, on the one hand,  

appellants contended that each of its affiliated units are autonomous bodies,  

they, on the other, put forward a contention that the second appellant control  

the financial affairs of the unit.  No statutory rules or any other arrangement  

governing such relationship between the ICAR and its various units has been  

brought to our notice.

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17. Furthermore,  respondents  are  only  four  in  number.   According  to  

them, they had been discriminated against.   Although their  contention in  

regard to the discrimination had not categorically been adverted to by the  

Tribunal, the said factor must have been kept in mind while allowing the  

original application.  We may also place on record the stand taken by the  

appellants herein in Original Application before the Chandigarh Bench of  

the Central Administrative Tribunal being OA No.175 of 2004, wherein the  

effect  of  the  order  passed  by  the  Cuttack  Bench  of  the  Central  

Administrative Tribunal as also this Court, was accepted, stating:

“It is submitted that the Council Headquarters had  also  revised  the  pay  scale  of  its  Computor  to  Rs.425-700  with  effect  from  the  date  of  his  appointment vide order  No.1-31/96-Estt.IV dated  1.11.2000.  A copy of the order dated 1.11.2000 is  annexed  and  marked  hereto  as  Annexure  R-7.  Because  of  these  reasons,  the  similarly  placed  personnel  working  under  the  control  of  the  2nd  Respondent  had made a series  of representations  for  extending  the  same  benefit  to  them.   After  protracted correspondence the matter was carefully  considered by the Respondents and it was finally  decided  to  extend  the  benefit  based  on  the  Honourable  Supreme  Court  judgment  to  these  similarly situated Computors  by revising the pay  scale from Rs.330-560/- to Rs.425-700/- and place  them in T-II-3 grade w.e.f. 1.10.1975 or from the  date  of  appointment,  whichever  is  later.   These  personnel  had earlier  filed OA No.340/88 before  the  Hon’ble  Central  Administrative  Tribunal,  

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Ernakulam Bench praying for  extending the said  benefit.

It  is  submitted  that  the  OA  was,  however,  disallowed by the Hon’ble Tribunal on the ground  that  the  OA  was  barred  by  limitation.   The  concerned  personnel  had  again  made  several  representations to the respondents for granting the  benefit.  It is submitted that the respondents have  realized that there is merit in the claims of these  personnel and thus it was finally decided to extend  the benefit of pay revision and placement in T-II-3  grade (Rs.425-700/-) w.e.f. 1.10.1975, i.e., the date  from  which  the  TSR  came  into  effect  in  accordance  with  the  judgment  of  the  Hon’ble  Supreme Court.  It is further made clear that on the  other  hand,  the  Applicant  was  neither  appointed  initially as Computor nor possessed the Degree in  Mathematics/Statistics,  discharged the  duties  and  functions  of  Computors  any  time  during  his  service period and hence he is not entitled for any  benefit whatsoever as extended to the Computors  based  on  the  Hon’ble  Supreme  Court  judgment  forwarded by 2nd Respondent vide Circular dated  15.1.1998 (Annexure – R6).”

18. We  need  not,  however,  go  into  the  depth  on  the  aforementioned  

question.   Respondents  are  four  in  number.   Two of  them have  already  

retired.  Their claim was found to be justified even by the first appellant.  

They had been granted the benefit of the said office order dated 7.6.2003 for  

a  period  of  more  than  two  years.   It  will,  therefore,  be  harsh  if  the  

withholding  of  the  said  benefit  is  upheld  only  on  a  technical  plea  that  

requisite approval therefor had not been taken from the second appellant.  

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Even the principles of natural justice had not been complied with in issuing  

the officer order dated 27.4.2005.

19. For the reasons aforementioned, we are of the opinion that it is not a  

fit case where we should exercise our discretionary jurisdiction under Article  

136 of the Constitution of India.  The appeal, therefore, is dismissed.  We,  

however, make it clear that we have passed this order keeping in view the  

facts and circumstances of this case and the same may not be treated to be a  

precedent.

……………………………….J. [S.B. Sinha]

..…………………………..…J.  [Dr. Mukundakam Sharma]

New Delhi; May 5, 2009

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