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CASE NO.: Appeal (civil)  4862 of 2007

PETITIONER: Purnendu Mukhopadhyay and others

RESPONDENT: V.K. Kapoor and another

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T  [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 :-

\023The 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.\024                  

       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

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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 :-

\023On 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 Hon\022ble 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.\024                        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 :-          \023Heard 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.\024.   

       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 :-      

\023Union 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

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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.\024  

       The appeal preferred by the Union of India was dismissed by this  Court by an order dated 5th August, 1993, observing:                                  \023Having 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.\024

       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 :-.               \023Needless to say that despite appointment of every  supervisor Grade \023A\024 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 \023A\024 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  \023A\024 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.\024                                  With regard to seniority and the effect on promotion to higher  post, this Court observed :-

\023It 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.\024  

                The Hon\022ble Court further observed:-

\023In 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

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been remedied.\024                   The Court, however, modified the said order to the following  extent :-

\023In 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.\024    

    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 :-       \023\005on 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.\024     

\023It 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\024                      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 :

\023In 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.\024             

    Later on the said order dated 4th November, 1983 was also  withdrawn directing :-       \02312.    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.\024                                        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

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plea of Union of India and inter alia directed :-       \023While 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  Mukhopadhyay & Ors.  Vs. Union of  India and others)  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.\024             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:       \023(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  Hon\022ble 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 Hon\022ble 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 Hon\022ble 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.\024                       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

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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 :-       \02318.4.3   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.\024       (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

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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/-.