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CASE NO.: Appeal (civil)  919 of 2002

PETITIONER: State of Karnataka & Ors.

RESPONDENT: C. Lalitha

DATE OF JUDGMENT: 31/01/2006

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

JUDGMENT: JUDGMENT

S.B. SINHA, J.

       Construction of an inter-parties order of this Court is in question in  this appeal wherein the validity of an amendment of the reservation policy of  the State which was the subject matter of a decision of this Court in N.T.  Devin Katti and Others v. Karnataka Public Service Commission and Others  [(1990) 3 SCC 157], had been raised.  This Court therein declared that the  revised reservation policy was not applicable to selection initiated prior  thereto and consequently directed:

"15\005In this view, we direct the State Government  to appoint the appellants on the posts of Tehsildars  with retrospective effect, but if no vacancies are  available the State Government will create  supernumerary posts of Tehsildars for appointing  the appellants against those posts. We further  direct that for purposes of seniority the appellants  should be placed below last candidate appointed in  1976, but they will not be entitled to any back  wages. The appellants will be entitled to promotion  if otherwise found suitable."

       The Respondent thereafter filed an original application before the  Karnataka Administrative Tribunal claiming appointment as Assistant  Commissioner although in terms of the said revised reservation policy she  was appointed as a Tehsildar.  The said original application having been  dismissed, a Special Leave Petition was filed thereagainst before this Court  which was allowed by an order dated 15th March, 1994 in the following  terms:

"The appellant was admittedly selected and shown  in the first list which is upheld by this Court in  N.T. Bevin Katti and Ors. Vs. Karnataka Public  Service Commission and Ors. (1990) 3 SCC 157.

       In this view of the matter, we allow the  appeal and set aside the order of the Karnataka  Administrative Tribunal.  We are informed that the  appellant has since been promoted to Class-I post  of Assistant Commissioner (Karnataka  Administrative Service).  If no vacancies are

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available, the State Government will create a  supernumerary post for the appellant’s  appointment.  We further direct that for the  purposes of seniority, the appellant shall be placed  below the last candidate appointed in 1976, but she  will not be entitled to any back wages.  The  appellant will be considered for promotion if  otherwise found suitable.  These directions will be  carried out within three months from today.

       The appeal is allowed accordingly.  No  order as to costs."

       An application for review was filed by the Appellant herein inter alia  on the ground that she did not have any legal right to the said post as the  State of Karnataka did not intend to give effect to the additional select list  prepared by the Karnataka State Public Service Commission (Commission),  which  was dismissed.   

       The State of Karnataka thereafter sought for the opinion of the  Commission.  The Commission by  communication dated 24.6.1995 advised   that as per the Respondent’s ranking in the General Merit Category \026 I posts,  she should be considered for the post of Assistant Controller of Accounts  which is a Category \026 I post, as the marks secured by her were below the  marks secured by the candidates selected as Assistant Controller of  Accounts.  The Respondent did not accede thereto when such a post was  offered to her.

       After an unsuccessful attempt to obtain some order in a contempt  proceedings instituted by her, the Respondent filed a fresh original  application before the Administrative Tribunal which came to be dismissed  whereupon she filed a writ petition before the Karnataka High Court.   

       We may at this stage notice that the ground upon which the  Respondent’s application was dismissed by the Tribunal inter alia was that  one B.N. Mahesh was at S.No. 1 of the said list whereas the Respondent  figured at S.No. 2 and the former’s claim for appointment as Assistant  Commissioner was thence pending before this Court.  The matter of Shri  B.N. Mahesh being Civil Appeal No. 3475 of 1998 was dismissed by this  Court on 22.7.1998  on the ground that he moved the Tribunal at a belated  stage.  Taking note of the said fact and interpreting the judgment and order  dated 15th March, 1994, a Division Bench of the High Court allowed the writ  petition filed by the Respondent against the order of the Tribunal directing  the State to implement the order of this Court within four months without  reference to the assessment of merit by the Commission as well as the fact  that the Government had earlier offered appointment to her as Assistant  Controller, State Accounts Department, Group ’A’ on the Commission’s   recommendations.

       Mr. P.P. Rao, learned senior counsel appearing on behalf of the  Appellant submitted that the State intended to implement this Court’s  judgment dated 15th March, 1994 wherefor only the recommendation of the  Commission was sought for and pursuant thereto and in furtherance thereof  the notification dated 14.8.1995 was issued.  It was argued that the effect of  the order of this Court is  to render the parties to the same position as if the  reservation policy was not amended and if so construed, the Respondent  having been placed in the supplementary list could not have laid any claim  for any post in the Administrative Service.   

       It was urged that the merit should be the sole criteria for selection of   the candidates and in that view of the matter, the State cannot be said to have  misconstrued and misinterpreted the judgment of this Court.

       Mr. S.S. Javali, learned senior counsel appearing on behalf of the

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Respondent, on the other hand, drew our attention to the prayer made by the  Respondent herein in her application before the Tribunal and submitted that  the order of this Court should be construed in the context thereof.  Drawing  our attention to the averments made in the application for review filed by the  Appellant herein, it was contended that therein a similar stand was taken but  this Court having rejected the review application, the Appellant herein  cannot now be permitted to re-agitate the said question once over again.

       It is not in dispute that the Respondent herein had been working from  the very beginning in the Revenue Department.  The order of this Court  dated 15th March, 1994 as noticed supra should, thus, be construed in the  light of the decision of this Court and the pleadings of the parties.

       For the said purpose, we may notice the prayers made by the  Respondent before the Karnataka Administrative Tribunal which are as  under:

"i)     Declare by the issue of an appropriate order  or direction as the case may be, the action of  the State Government in denying the  benefits to the applicants flowing from the  decision of the Hon’ble Supreme Court of  India in Civil Appeal Nos. 2270 to 73/87  and connected appeals, as illegal and  discriminatory, with a further declaration  that the applicants are entitled to be  considered for appointment to Group A  Services (Assistant Commissioners).  On the  basis of the first select list prepared by the  Karnataka Public Service Commission vide  Notification dated 23.2.1976 published in  the Karnataka Gazette dated 26.2.1976  (Annexure A1) and entitled to all  consequential benefits, in the interest of  justice and equity. (ii)    Issue an appropriate order or direction, as  the case may be, directing the State  Government to pass appropriate orders  appointing the applicants to Group A  services (Assistant Commissioners),  pursuant to the declaration to be granted as  per the above prayer, w.e.f, the dates, the  same has become due with all consequential  benefits, in the interest of justice and equity. (iii)   Pass such orders just and expedient in the  circumstances of the case, including the  aware of cost."

       Prayers made in the said original application before the Tribunal must  be construed having regard to the pleadings thereof.  We have been taken  through the application filed by the Respondent before the Administrative  Tribunal.  No statement far less any claim grounded on legal right was raised  to the effect that she was entitled to be appointed as Assistant Commissioner  from the very inception.  Such a plea could not have been taken.   

       In paragraph 6 of her application, she accepted that her name was  included in the Additional List of Category \026 I Service.  In sub-paragraph (e)  of the said paragraph, she moreover accepted that her name had appeared at  Sl. Nos. 26 and 5 respectively in Category \026 II Service (Tahsildars) now  designated as Group ’B’ Service omitting her name from Group ’A’ Service.   In sub-paragraph (g) of paragraph 6  she stated:

"By order dated 30.3.1990, the Hon’ble Supreme  Court of India struck down the government order

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dated 23.4.1976.  Thus, with the setting aside of  the Government order dated 23.4.1976, the  applicants also became entitled to be appointed to  Group ’A’ Services on the basis of the first select  list (Annexure A1).  The judgment of the Hon’ble  Supreme Court of India also ensures to the benefit  of the applicants and accordingly the applicants  became entitled to be appointed to Group A  Services w.e.f. the respective dates the Candidates  included in the second list to the Annexure B were  appointed with all consequential benefits except an  express benefits denied by the State Government  by order dated 22.5.1990 proceeded to grant  benefits only to the petitioners before the Hon’ble  Supreme Court of India\005"

       Yet again, in the Grounds contained in the said application, she  merely contended:

"\005With the setting aside of the directions, even  the deletion of the names of the applicants from  the additional list of Group A services is  automatically held to be illegal and  discriminatory\005"

       Furthermore, in sub-paragraph (m) of paragraph 6, she stated:

"The applicants submit that they too are similarly  and equally placed like those who were Appellants  before the Hon’ble Supreme Court, in the matter of  appointment on the basis of first select list  (Annexure-A1)\005"

       It is, thus, only in the prayer portion, she prayed for being considered  for appointment to Group ’A’ Service (Assistant Commissioner) without  there being any requisite pleadings therefor.  She had, thus, never questioned  the merit position.

       The Commission issued a notification on 23.2.1976 showing the  names of the candidates who became eligible to hold the posts of Assistant  Commissioners being Category \026 I service.  The name of the Respondent did  not figure therein.  Her name did not figure even in the posts of Assistant  Controllers which were also Category \026 I posts.  Her name appeared at Sl.  No. 2 in the Additional List of Category \026 I service.  It is true that having  regard to Devin Katti (supra), the said List was revised but even on revision  of the list, her name could have been placed  only below K.C. Ramamurthy  who got 871 marks as  she got 868 marks.  Even some candidates belonging  to the Scheduled Castes category as, for example, Shri T. Muktamba got  higher marks than her i.e. 893 marks.  It further appears that even in the List  of Commercial Tax Officers, the last candidate therein Shri M. Viswanatha  who was a General Category candidate got 875 marks.  Thus, there were  many persons who were above the Respondent both amongst General  Category as also Reserved Category candidates.  Upon revision of the List,  She had, thus, been placed at Sl. No. 26 of Category \026 II Service which was  meant for Tahasildars.  It is not in dispute that if the name of the Respondent  was to be included in the Assistant Commissioner from the General Merit  Category, then cases of six more candidates, namely, A.C. Suryaprakash, C.  Vasumathi, V. Mohan Kumar, M. Vishwanatha, K.C. Ramamurthy and B.N.  Mahesh, being above her, were also required to be considered.  It is,

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furthermore, not in dispute that those who had been offered the post of  Assistant Controller of Accounts in 1993 are currently working as Joint  Controller.  Only one person, Shri M.V. Munirathnappa has been promoted  as Additional Controller of State Accounts on 22.5.1997.  The merit position  of the candidates, as noticed hereinbefore, had never been questioned and  even now has not been disputed.  The Respondent, on her own showing, has  been presently working in Karnataka Administrative Service, Group ’A’,  Super-Selection Post in the scale of pay of Rs. 13820-17220.  There are 62  posts in the Selection Grade and 45 posts in the Super-Selection Grade.  The  post of Controller is only one whereas the number of posts of Additional  Controller is 9 and that of Joint Controller is 50.   

The Respondent herself in her additional affidavit stated:

"That it is directed by this Hon’ble Court on  15.3.1994 "that for the purpose of seniority, the  Appellant shall be placed below the last candidate  appointed in 1976, but she will not be entitled to  any backwages".  I submit that the select list of the  1976 Batch in the Administrative Service (Post \026  Karnataka Administrative Service Group ’A’)  comprised 15 candidates.  Three of them died,  while one did not join service.  The service  particulars and promotion accorded to the  remaining 11 candidates are indicated in the chart  marked herewith as Annexure R-1.  I further  submit that the 1976 batch Karnataka  Administrative Service Group ’A’ (Junior Scale)  Officers were promoted to the Karnataka  Administrative Service Group ’A’ (Senior Scale).   Vide Notification dated 2.9.1983, a copy of which  is marked herewith as Annexure R-2, while I was  promoted to Karnataka Administrative Service  Group ’A’ (Senior Scale) in 1997, vide  Notification dated 10.4.1987 the true copy of  which is marked herewith as Annexure R-3."

                It is, therefore, evident that it had never been nor could be her claim  that she should be placed in higher grade ignoring the case of persons  similarly situated.           It is true that the Appellant herein filed an application praying for  review of the said order dated 15th March, 1994 contending:

"\005It is respectfully submitted that the Respondent  was only included in the additional list of Category  I in the pre-revised list and was not allocated to  any particular service.  The question of  appointment of persons included in the additional  list would arise only after exhausting the  appointment of all the selected candidates in the  main list and as already stated, the Respondent  came to be included in the list of Category II after  the revision taken by the K.P.S.C. as directed by  the State Government at that point of time.  It is  also relevant to state here that the Government  took a decision not to operate the Additional List  and accordingly the relevant provision providing  for publication of the Additional List as provided  in Sub-Rule (4) of Rule 11 of the 1966 Rules came  to be deleted as per the Notification No. DPAR 46,  SRR 76 dt. 21.8.76"

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       In the order dated 15th March, 1994, this Court noticed that the  Appellant had since been promoted to Class \026 I Post of Assistant  Commissioner.  As the Respondent was to be appointed in the said post with  retrospective effect, a direction was issued to create a supernumerary post  therefor as otherwise it was not necessary to issue any such direction.   Furthermore, this Court  directed that the Respondent should be placed  below the last candidate appointed in 1976 meaning thereby the same post  which she had been holding at the relevant point of time.  She was held not  to be entitled to any back wages therefor.   

       The judgment of this Court dated 15th March, 1994 must be construed  in the aforementioned backdrop.

       A judgment, as is well known, is not to be read as a statute.  But, it is  also well-known that the judgment must be construed as if it had 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."

[See also  Zee Telefilms Ltd. & Another v. Union of India & Others \026  (2005) 4 SCC 649]           In P.S. Sathappan (Dead) By Lrs. v. Andhra Bank Ltd. & Others  [(2004) 11 SCC 672], this Court held :    "The judgment of this Court must be read as a whole  and the ratio therefrom is required to be culled out from  reading the same in its entirety and not only a part of it."

       In Gajraj Singh and Others v. State of U.P. and 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."

       In N. K. Rajgrahia Vs. M/s Mahavir Planatation Ltd. & Ors. JT 2006  (1) SC 70, the Court observed:           "An order of a court of law and, in particular, a  consent order, must be read in its entirety for the  purpose of ascertaining its true intent and purport."

       Devin Katti (supra) was not directly applicable to the case of the  Appellant.  Therein this Court was concerned with the selection process  which started by a notification dated 23rd May, 1975 which was published on  29th May, 1975 only for the post of Tehsildars whereas the Respondent  herein was selected in terms of the notification dated 28th November, 1974.   This Court in the case of the Respondent proceeded on the basis that her  case was covered by Devin Katti (supra) in all force,   only for  applying the  ratio that after the selection process had started, her status could not have   been altered by the reservation policy.   Her name was not in the First List

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but was in the Additional List.  

       Service jurisprudence evolved by this Court from time to time  postulates that all persons similarly situated should be treated similarly.   Only because one person has approached the court that would not mean that  persons similarly situated should be treated differently.  It is furthermore  well-settled that the question of seniority should be governed by the rules.  It  may be true that this Court took notice of the subsequent events, namely,  that in the meantime she had also been promoted as Assistant Commissioner  which was a Category \026 I Post but the direction to create a supernumerary  post to adjust her must be held to have been issued only with a view to  accommodate her therein as otherwise she might have been reverted and not  for the purpose of conferring a benefit to which she was not otherwise  entitled to.  

       It is furthermore not in dispute that the correct position as regard her  ranking amongst the successful candidates had not been brought to the  notice of this court and if it had been so done, this Court would have found  that she was entitled only to the post of Assistant Controller of Accounts.   

       It may be true that in the Appellant’s application for review, more or  less similar pleas were raised, but rejected,  but, herein the same is not an  issue as we are concerned only with construction of this Court’s order dated  15th March, 1994.  

       Justice demands that a person should not be allowed to derive any  undue advantage over other employees.  The concept of justice is that one  should  get what is due to him or her in law.  The concept of justice cannot  be stretched so as to cause heart-burning to more meritorious candidates.   Moreover, at the end of the day, the Respondent has got what could be given  to her in law.  As of now, she had already been enjoying a higher scale of  pay than what she would have got if she was to join the post of Assistant  Controller.  We, therefore, are of the opinion that interest of justice would be  sub-served if she is allowed to continue in her post and direct the Appellant  to consider her seniority in the Administrative Service in terms of the order  of this Court dated 15th March, 1994 that she would be the last in the  seniority list of the appointees in the post of Category \026 I Assistant  Commissioner (Karnataka Administrative Service).                  The Appeal is allowed to the aforementioned extent.  However, there  shall be no order as to costs.