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CASE NO.: Appeal (civil)  5087 of 2002

PETITIONER: Sarat Chandra Mishra & Ors.

RESPONDENT: State of Orissa & Ors.

DATE OF JUDGMENT: 03/01/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

       The appellants and the private respondents herein were appointed as  Lower Division Assistants/Junior Assistants between the period 28.09.1966  and 05.09.1973.  Recruitment process was undertaken by the Orissa Public  Service Commission in terms of  the Orissa Ministerial Service (Method of  Recruitment & Conditions of Service of Lower Division Assistant in the  Office of the Department of Secretariat) Rules, 1951 (for short, the OMS  Rules, 1951’).  After their appointments, the appointees  were recruited in  various departments.  With a view to avail  promotional opportunities, the  appointees were required to pass an examination known as ’STC  Examination’.  All the employees admitted were promoted after they had  passed the said examination.  The private respondents passed the  examination before the appellants herein and as such they were promoted  earlier.  On or about 01.01.1984, a Gradation List was published wherein the  respondents were shown senior to the appellants herein.  The appellants  contended that having regard to the fact that seniority of the ministerial  officers was to be reckoned on the basis of ranks obtained by them in PSC  examination; only because some employees working in some departments  were sent for training earlier than the others which enabled them to pass the  STC examination before them, the respondents could not have been treated  to be senior by reason of such fortuitous circumstances.   

Representations were made by the appellants before the State of  Orissa.  The State issued a circular dated 21.02. 1989 purporting to set up  new principles for fixing seniority in the cadre of Lower Grade Assistants in  the higher grade and consequently a corrected Gradation List was published  on 22.08.1990.

       The legality and validity of the said circular dated 21.02.1989 and the  Gradation List dated 22.08.1990 came to be questioned by the respondents  herein before the Orissa Administrative Tribunal (for short, ’the Tribunal’)   which was marked as O.A. No.1200 of 1990.  Some of the appellants herein  also filed an original application, which was marked as O.A. No.90 of 1990,  praying for a direction that the common 1984 Gradation List be revised and  consequently the 1990 Gradation List which was published pursuant to the  circular letter dated 21.02.1989 be upheld.  Both the aforementioned original  applications were disposed of by a judgment and order dated 09.03.1992,  holding :

"\005We, therefore, have no hesitation in holding that the  gradation list drawn up as per Home Department letter  No.10535/F dated 21.2.1989 and consequently refixation  of seniority in the Home Department’s letter in Memo  No.24961/CC dated 22.5.1990 and by Home  Department’s Memo No.56814 dated 22.8.1990 are

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illegal and hereby quashed.  All the future promotions  above the rank of Senior Assistants and Section Officer,  Level-II shall be governed by the gradation list made in  the year, 1984  and the promotions given effect to  accordingly.  The principle decided shall govern all the  cases i.e. O.A. 1200/90, C.A. 1037/90, OA 817/90, OA  783/90, OA 516/90 and OA 90/90.

       The prayer in O.A. 90/90 is dismissed relating to  quashing of the Gradation list of 1984.  The other five  petitions are allowed and our order will govern the  seniority of all Senior Assistants and Section Officer  Level II\005"

       The State of Orissa and the appellants herein did not question the  correctness of the said order.  Only one Suresh Kumar Chhotray filed an  application for grant of special leave to appeal in this Court questioning the  correctness of the said judgment and order dated 09.03.1992 passed by the  Tribunal.  During the pendency of the special leave petition, the State of  Orissa issued a circular letter purported to be in terms of the said judgment  and order dated 09.03.1992, stating :

       "In pursuant of the decisions of the Orissa  Administrative Tribunal on 9.3.1992 in O.A. No.1200/90  the Gradation List of Senior Assistants issued in Home  Department Memo No.24961 dated 22.5.1990 and  No.56814 dated 22.8.1990 is hereby superseded and the  Gradation List of Senior Assistants circulated in Home  Department Memo No. 3 dated 1.1.1984 and Memo  No.53218 (40)/CC dated 27.9.1984 is hereby restored.   Home Department letter No.10535/CC dated 21.2.89  stands withdrawn."

The application for grant of special leave filed by the aforementioned  Suresh Kumar Chhotray came up for hearing before this Court on   05.01.1993.  In view of the aforementioned Government Order dated  12.08.1992,  this Court opined that the said special leave petition had  become infructuous on the premise that the State intended to issue the said  circular letter dated 12.08.1992 as a matter of policy independent of the  order of the Tribunal.  It was, however,  observed :

"We may, therefore, observe that the right, if any,  of the petitioner and other similarly situate to assail any  action of the Government based on any distinct cause of  action shall not be treated as conclusive by the dismissal  of this Special Leave Petition as infructuous.  The  petitioner would be free to pursue such remedy as may be  available to him in that behalf.   The Special Leave  Petition is dismissed as infurctuous."

       Relying on or on the basis of the said purported observations made by  this Court in the aforementioned Special Leave Petition (Civil) No. 10513 of  1992,  original applications were filed by the appellants before the Tribunal.   By its judgment and order, the Tribunal held that having regard to its earlier  decision and consequent dismissal of the special leave petition by this Court,  the issue could not be reopened, particularly, when the  applicants therein  had not been able to show any distinct cause of action to agitate their case  afresh other than stressing hard for maintaining their seniority as per the  guidelines dated 21.02.1989 on the basis of which gradation list of the year  1990 was prepared.  

       Aggrieved by and dissatisfied therewith the Appellants filed a writ

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petition before the Orissa High Court which was marked as O.J.C. No.14151  of 1999 and by an order dated  20.09.2001, the said writ petition was  dismissed.  In its judgment the High Court opined :

       "It is submitted by Dr. Misra appearing for the  petitioners that they are entitled to raise the questions in  view of the liberty given by the Supreme Court.  We are  unable to accept the said submission in as much as the  reliefs prayed for by the petitioners, if granted, would  amount to reversing the earlier judgment and order of the  Tribunal even though special leave petition against the  same had been dismissed by the Supreme Court.  We do  not find any illegality or infirmity in the impugned order  passed by the Full Bench of the Tribunal and as such  there is no question of interference with the same."

       Mr. Raju Ramachandran, the learned Senior Counsel appearing on  behalf of the appellants, submitted that in view of the fact that the special  leave petition filed against the judgment and order dated 09.03.1992  passed  by the Tribunal had not been disposed of on merit and as thereby liberty had  been granted to the petitioner therein to question the said order dated  12.08.1992 afresh, the Tribunal and consequently the High Court committed  a manifest error in not entertaining the original application and the writ  petition, respectively.   

       The learned counsel would submit that it is a fit case where this Court  should exercise its discretionary jurisdiction under Article 142 of the  Constitution of India so as to enable the appellants to obtain at least the  monetary benefits as most of them have since retired.

       We are not persuaded to accept the said submission of the learned  counsel.  Two sets of applications were filed before the Tribunal at the first  instance;  one questioning the legality of the Common Gradation List of the  year 01.01.1984; and another questioning the legality of the circular letter  dated 21.02.1989  and consequent publication of the  Gradation List dated  22.08.1990.  Both the sets of applications were heard together. Whereas the  original applications filed by the respondents were allowed, those filed by  some of the Appellants were dismissed.  One special leave petition was filed  against that part of the judgment and order of the Tribunal, whereby only  O.A. No.90 of 1990 was dismissed.   The State of Orissa or for that matter,  the appellants herein did not file any special leave petition before this Court  questioning the said order except one Suresh Kumar Chhotray.  The  judgment and order of the Tribunal dated 09.03.1992 passed in O.A. No.  1200 of 1990, thus,  attained finality.  The principle of res judicata would,  therefore, apply in the instant case.  The applicability of the principle of res  judicata in a proceeding before the Tribunal is not disputed.  It is also not a  case where the jurisdiction of the Tribunal is in question.   

       This Court while passing  its order dated 05.01.1993 did not and could  not have dispensed with the applicability of the principle of res judicata, as  the right of the respondents derived from the judgment and order of the  Tribunal dated 09.03.1992 could not have been taken away.  In any event,  the decision of the Tribunal in O.A. No.90 of 1990 wherein, as noticed  supra, some of the appellants had questioned the validity or otherwise of the  Gradation List as contained in Home Department’s letter dated 27.09.1984  attained finality.

       The judgment and order passed in the said O.A. No. 90 of 1990 would  indisputably be binding on the State and the appellants herein and, thus, it is  not open to them to raise the said question once again.  Furthermore the   seniority list which was revised following the Home Department’s letter  dated 21.02.1989 and consequent fixation of seniority in terms of  Home  Department’s letters dated 22.05.1990 and 22.08.1990 were declared to be  illegal.

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       It is in the aforementioned backdrop, the order of this Court dated  05.01.1993 is required to be construed.  The judgment of a court, it is well  settled, cannot be read as a statute.  While construing a judgment, it may be  presumed that the same has been rendered in accordance with law.

       In Ramesh Chand Daga v. Rameshwari Bai [(2005) 4 SCC 772], this  Court held :   "A judgment, as is well known, is not to be read as a  statute. A judgment, it is trite, must be construed upon  reading the same as a whole. For the said purpose the  attendant circumstances may also be taken into  consideration. (Islamic Academy of Education v. State of  Karnataka, Zee Telefilms Ltd. v. Union of India and P.S.  Sathappan v. Andhra Bank Ltd)"  

       In Gajraj Singh and Others v. State of UP & Others [(2001) 5 SCC  762], this Court held :

"\005A doubt arising from reading a judgment of the  Court can be resolved by assuming that the judgment was  delivered consistently with the provisions of law and  therefore a course or procedure in departure from or not  in conformity with statutory provisions cannot be said to  have been intended or laid down by the Court unless it  has been so stated specifically."                  The jurisdiction of this Court under Article 142 of the Constitution of  India is not meant to be exercised in a situation of this nature.  Mr.  Ramachandran is not correct in contending that the appellants did not get  any opportunity to canvass their case at all.  They had such an opportunity  before the Tribunal.  They, it will bear repetition to state, except one did not  assail the findings of the Tribunal.  The order of this Court dated 05.01.1993  must be construed having regard to the entire factual and legal backdrop.  It  is no doubt true that this Court refused to determine the matter on merit and  came to the opinion that the special leave petition had become infructuous in  view of the order of the State Government dated 12.08.1992, but the fact  remains that even before this Court the said order of the Sate Government  was not questioned.  

       This Court moreover, as noticed hereinbefore, granted liberty to  approach the appropriate forum only in the event any distinct cause of action  arises therefor, presumably meaning thereby, when an error had been  committed by the State in implementing the said order in individual cases.   This Court by its order, in our considered opinion, had no intention to give  liberty to the appellants herein to reopen the question as regard the validity  or otherwise of the Gradation List of 1984 which, as noticed hereinbefore,  became final and binding.  Once the said order attained finality, this Court  could not have allowed the parties to approach the Tribunal once again  indirectly it could not have done so directly.  As the principle of res judicata  was applicable, the Tribunal had no jurisdiction to reopen the issue.  This  Court could not and did not confer a jurisdiction upon the Tribunal which it  did not have.

       It is furthermore well-settled, this Court cannot exercise its  jurisdiction under Article 142 of the Constitution of India in violation of the  statutory provisions and that too at this distant time so as to unsettle a settled  thing.

       For the reasons aforementioned, there is no merit in this appeal which  is accordingly dismissed.  However, in the facts and circumstances of the  case, there shall be no order as to costs.