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CASE NO.: Appeal (civil)  4339 of 1995

PETITIONER: Union of India                                                

RESPONDENT: Madras Telephone SC & ST Social Welfare Association

DATE OF JUDGMENT: 28/09/2006

BENCH: B.P. SINGH,S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: JUDGMENT

O R D E R IN  I.A. 16  IN  CIVIL APPEAL NO. 4339 OF 1995

AND

IN THE MATTER OF : Promotee Telecom  Engineers Forum & Ors.                          \005Applicants         Versus Secretary, Department of  Telecommunications and Others.                  \005Respondents

B.P. SINGH, J.

       This application for clarification has been filed by the  applicants pursuant to the liberty granted to them by order of this  Court dated July 18, 2003 in Petition for Special Leave to Appeal  (Civil) No.9189 of 2003 in Promotee Telecom Engineers Forum &  Ors. Vs.  Secretary, Department of Telecommunications & others.    The applicants pray that this Court may be pleased to clarify that  the observations made by this Court in its judgment and order  reported in (2000) 9 SCC 71 Union of India Vs. Madras Telephone  SC & ST Social Welfare Association dated April 26, 2000 protects  the seniority and consequent promotion of persons who had  judgments in their favour from the Central Administrative Tribunal  duly confirmed by this Court which have thus attained finality.   Their seniority and promotion, therefore, cannot be disturbed in  any manner whatsoever.  The respondents who have revised the  seniority list on 22nd, 26th and 28th March, 2001 respectively and  purporting to give effect thereto issued the letter dated March 30,  2001, must recognize the finality of the judgments in favour of the  applicants and restore them to their original seniority.

To appreciate the controversy it is necessary to refer to the  background in which this question has arisen.

       The applicants are/were members of the Telegraph  Engineering Service Class II.  Before coming into force of the  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, the promotion from the post of  erstwhile Engineering Supervisor Telecom (re-designated as Junior  Engineer) to the post of Assistant Engineer was made in  accordance with the instructions contained in paragraph 206 of

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Post and Telegraph Manual, Vol. IV. These instructions were  executive instructions which governed the field in the absence of  statutory rules.  In accordance with the aforesaid executive  instructions contained in the Manual promotion to Class II was  made according to the principle of seniority-cum-fitness.  Those  who passed the qualifying examination earlier ranked senior as a  group to those who passed the examination on subsequent  occasions, i.e. officials who passed the examination held in the  year 1956 ranked en block senior to those who passed in 1957.   Their seniority inter se, however, was determined according to  their seniority in the cadre of Engineering Supervisors.  However,  with the coming into force of the Recruitment Rules, 1966 w.e.f.  June 15, 1966, the method of determining seniority was changed.   It was provided that the Engineering Supervisors must complete 5  years of service to be eligible for appearing at the departmental  qualifying examination.  The same requirement existed earlier as  well, but under para (v) of Appendix 1 of Recruitment Rules, the  eligibility list of candidates for consideration of the Departmental  Promotion Committee was to be prepared in accordance with the  instructions as may be issued by the Government from time to  time.  Accordingly, the Government of India, Department of  Communication issued instructions dated June 28, 1966  prescribing the procedure for the preparation of eligibility list of  the officers for being placed before the Departmental Promotion  Committee.  The instructions required the preparation of a separate  list for each year of recruitment.  Para (v) of the instructions  provided that all officials of a particular year of recruitment/  appointment, who had qualified in the examination, would rank en- block senior to those officials of the same year of recruitment/  appointment, who qualified in subsequent examination.  It would  thus appear that in the matter of promotion the emphasis shifted  from the year of passing the examination to the year of  recruitment/ appointment of the candidate concerned.

       In the year 1981 one Shri Parmanand Lal (1966 batch) and  Brij Mohan (1965 batch), both of whom qualified in the qualifying  examination held in 1974, filed two writ petitions complaining of  their placement in the eligibility list below the last man who passed  the qualifying examination in 1975.  The department contended  that the eligibility list had been arranged on the basis of seniority,  based on the year of recruitment and ignoring the year of passing  the qualifying departmental examination, as required by the  Recruitment Promotion Rules of 1966.  The Lucknow Bench of  Allahabad High Court considered the submissions urged before it  in the light of the Recruitment Rules of 1966 as also the Rules of  1981 and para 206 of the P & T Manual and concluded that those  who qualified in the departmental examination earlier were entitled  to be promoted prior to those who qualified later, irrespective of  the year of their initial recruitment.  It was held that para 206 of the  Manual was not in conflict with either the Rules of 1966 or 1981,  but was supplemental to those Rules.  Relief was accordingly  granted to the writ petitioners based on the interpretation of the  Rules and para 206 of the P & T Manual.    

       Petitions for Special Leave to Appeal were preferred by the  Union of India challenging the aforesaid decision of the Allahabad  High Court which were numbered as Special Leave Petition Nos.  3384 \026 3386 of 1986.  By Order of April 8, 1986 this Court  dismissed the special leave petitions observing as follows:

"Special leave petition is dismissed on merits.  In  the facts and circumstances of the present case, we  are not inclined to interfere with the judgment of  the High Court except to a limited extent".

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       It is the case of the applicants that following the judgment of  the Allahabad High Court several petitions were allowed by the  Principal Bench, Central Administrative Tribunal seeking identical  relief.  The Principal Bench by a detailed order of June 7, 1991  allowed the applications and issued directions for re-fixation of  seniority, keeping in view the relevant recruitment rules and para  206 of the Manual.  The Order of the Principal Bench of the  Central Administrative Tribunal dated June 7, 1991 was  challenged before this Court both by the Union of India and Junior  Telecommunication Officers Association (India) representing the  case of some of the aggrieved officers.  The Special Leave Petition  Nos.19716 \026 19722 of 1991 were dismissed on January 6, 1992.   While dismissing the special leave petitions this Court observed:-                  "These special leave petitions are directed against  the judgment of the Central Administrative  Tribunal, Principal Bench, Delhi dated June 7,  1991.  The Principal Bench has followed the  judgment of the Allahabad High Court in Writ  Petition Nos.2739 and 3652 of 1981 decided on  February 20, 1985. SLP (C ) Nos. 3384-86 of 1986  against the judgment of the Allahabad High Court  have already been dismissed by this Court on April  8, 1986.  We see no grounds to interfere.  Special  Leave petitions are dismissed".

       Subsequently, the same questions were again agitated before  this Court in 1993 Supp (4) SCC 693 Junior Telecom Officers  Forum and Others Vs. Union of India and Others.  This Court  while dismissing the writ petition before it observed:-

"Though learned counsel for the parties have  referred to some judgments on the questions of res  judicata, constructive res judicata and the binding  nature of a precedent, we do not think it is  necessary to refer to any of those judgments as in  the facts and circumstances of this case, and from  what we have noticed above, we are satisfied that  the issues which the petitioners now wish to raise  had been agitated directly and substantially not  only by JTOA, which was espousing their cause in  the earlier litigation right up to this Court, but also  by the Union of India.  The order made by this  Court in SLP (C ) Nos.3384-86 of 1986 interfering  with the judgment of the Allahabad High Court to  a limited extent is an order made on the merits of  the case as is quite apparent from the expressions  used in that order and is a binding precedent.  The  issues were again raised and agitated by the Union  of India as well as JTOA in SLP (C ) Nos.19716- 22 of 1991 against the judgment of Principal  Bench of CAT dated June 7, 1991 unsuccessfully.  Those judgments have settled the controversy and  have become final and binding in respect of the  questions debated therein and the issues settled  thereby and as was observed by a Constitution  Bench of this Court in Makhanlal Waza Vs. State  of J & K,  the Union of India and its officers are  bound to follow the same even if the members of  the Forum or a majority of the engineers were not  individually parties in the case before the  Allahabad High Court.  Since, the issues now  raised have been agitated twice over, it is not  permissible for the petitioners to once again

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reagitate the matter by coming now under the  ’cloak’ of a Forum.  The preliminary objection,  therefore, must succeed and is upheld.  The writ  petition is accordingly held not maintainable and  dismissed".              

       The applicants contend that following the judgment of the  Allahabad High Court and the Supreme Court, the Benches of the  Central Administrative Tribunal decided a large number of cases.  In some of the cases appeals were preferred by the Union of India  before this Court which were rejected by this Court.  The  applicants have referred to the judgment of this Court in 1994 Supp  (2) SCC 222 Telecommunication Engineering Service Association  (India) and Anr.  Vs. Union of India and Anr.; wherein in  substance the view of the Allahabad High Court was approved by  this Court by dismissal of the special leave petitions.  The Tribunal  in that case had held that the decision of the Allahabad Bench in  the case of Parmanand Lal and Brij Mohan and the judgments of  the Tribunal following the said decision lay down good law and  constitute good precedents to be followed in similar cases.  The  Tribunal accordingly rejected the contentions of the appellants to  the contrary and further held that having urged before the Supreme  Court their various contentions, and their SLPs having been  dismissed, they could not agitate the matter before the Tribunal.   This Court observed :-                    "So far as the first point is concerned, it appears  that the interventionists filed parallel proceedings  through Junior Telecom Officers’ Forum  v. Union  of India  and this Court (J.S.Verma and Anand, JJ.)  in an elaborate judgment took the same view as  that of the Allahabad High Court noticed by the  Principal Bench of the Tribunal in the aforesaid  case of  Parmanand Lal and Brij Mohan which has  become final and has been upheld by this Court on  merits.  It is thus not necessary to dwell on the first  question decided by the Principal Bench any  further".

       It would thus appear that this Court upheld the view of the  Allahabad High Court in the case of Parmanand Lal and Brij  Mohan. This view was upheld by this Court by dismissing the  special leave petitions against the said judgment.  The same view  was reiterated by this Court in 1993 Supp (4) SCC 693 Junior  Telecom Officers Forum and Ors.  Vs. Union of India & Ors. and  1994  Supp (2) SCC 222 Telecommunication Engineering Service  Association (India) and Anr.  Vs. Union of India and Anr..

       It appears that the Madras Telephone SC & ST Social  Welfare Association had filed a writ petition before the Madras  High Court with a prayer that the eligibility list must be prepared  by determining the seniority on the basis of confirmation as Junior  Engineer.  That list should form the basis for promotion to Class II  Service.  The writ petition stood transferred to the Central  Administrative Tribunal and the Tribunal by its judgment dated  December 31, 1986 held that the year of recruitment for the  purpose of seniority is extraneous and irrelevant and accordingly  directed that the eligibility list be arranged according to the year of  passing the qualifying examination.  As amongst those who pass  the examination in the same year, the list should be according to  their merit as seen from the marks obtained in the examination.   The judgment of the Tribunal was challenged before this Court in  Civil Appeal No.4339 of 1995 and the judgment of this Court is  reported in (1997) 10 SCC 226 Union of India Vs. Madras

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Telephone SC & ST Social Welfare Association;  This Court held :

"From the aforesaid clause read with instructions,  it is clear that the eligibility lists have to be  prepared according to the year of recruitment/  appointment.  The respondent’s case, before the  Tribunal, however, was that the said lists should be  prepared not with reference to the year of  recruitment/ appointment but with reference to the  year of confirmation.  The Tribunal neither  accepted their statement nor did it uphold the  Department’s case but directed that these lists  should be prepared on the basis of the year of the  passing of the Departmental Qualifying  Examination and not on the basis of the year of  recruitment/ appointment.  In our opinion what the  Tribunal has done really amounts to rewriting the  rule which should not have been done by it. The  appeal is accordingly allowed.  The order of the  Tribunal is set aside.  For the same reasons, the  order dismissing the review filed by the Union of  India, by the Tribunal, is also set aside.  No costs".   

       In Civil Appeal No.4339 of 1995, the notice of this Court  was not drawn to the earlier judgments of this Court, wherein the  Allahabad High Court view had been approved namely, the order  of this Court dismissing the special leave petition in Parmanand  Lal and Brij Mohan case, and the judgments reported in 1993 Supp  (4) SCC 693 Junior Telecom Officers Forum and Others Vs.  Union of India and Ors. and 1994 Supp (2) SCC 222  Telecommunication Engineering Service Association (India) and  Anr. Vs. Union of India and Anr. The judgment of this Court does  not notice the judgments aforesaid.

       In view of the earlier judgments of this Court and the later  judgment in Civil Appeal No.4339 of 1995, which  apparently took  a contrary view, the Union of India found difficulty in  implementing the order of this Court and, therefore, it filed an  application for clarification which came to be disposed of by this  Court along with other applications, petitions and civil appeals, by  a common judgment reported in (2000) 9 SCC 71 Union of India  Vs. Mdadras Telephone SC & ST Social Welfare Association.   Shorn of unnecessary details this Court took the view that the  judgment of this Court in Civil Appeal No.4339 of 1995 reported  in (1997) 10 SCC 226 laid down the correct law. It did not approve  the view of the Allahabad High Court observing that once the  statutory recruitment rules came into force and the procedure was  prescribed under the said Rules for preparation of eligibility list of  officers for promotion to the Engineering Service Class II by  Notification dated June 28, 1966, it is that procedure which has to  be adopted, and the earlier administrative instructions contained in  para 206 of the P & T Manual cannot be adhere to.  It observed  that the contrary conclusion of the Allahabad High Court was  undoubtedly incorrect.  However, it made a pertinent observation  with which we are concerned in the instant application.  While  upholding the correctness of the law as declared in 1997 (10) SCC  226, it was clarified as follows:-   "We, however, make it clear that the persons who  have already got the benefit like Parmanand Lal and Brij  Mohan by virtue of the judgments in their favour, will  not suffer and their promotion already made will not be  affected by this judgment of ours".  

By the same judgment this Court also disposed of the appeal

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preferred by Parmanand Lal which was directed against the Order  of Central Administrative Tribunal dated April 11, 1997.   Parmanand Lal had approached the Tribunal challenging the order  of reversion because of judgments of different Tribunals and of  this Court.  This Court observed that though the correctness of the  view in (1997) 10 SCC 226  had been upheld, promotions already  effected pursuant to the judgment of the Allahabad High Court  which was upheld by this Court by dismissing the special leave  petition filed by the Union of India, will not be altered in any  manner. That judgment having attained finality and Parmanand Lal  having received the benefit of the said judgment and having been  promoted, could not have been reverted because of some later  judgments and directions given either by the Tribunals or by this  Court.  It accordingly, quashed the order of reversion and also  clarified that the seniority of Parmanand Lal in the cadre of  Assistant Engineer, fixed on the basis of the directions of  Allahabad High Court, after dismissal of the special leave petition  against the same by this Court, is not liable to be altered by virtue  of a different interpretation being given for fixation of seniority by  different Benches of the Central Administrative Tribunal.  

The applicants claim that their cases are also similar and in  fact identical to that of Parmanand Lal and Brij Mohan.  In their  cases as well, the High Court or the CAT have rendered judgments  in their favour pursuant to which they have already been promoted  on the basis of their seniority determined in accordance with the  principles laid down by the Allahabad High Court.  Thus, they are  covered by the observation earlier quoted in this order wherein it  has been clarified that persons who have already got the benefit  like Parmanand Lal and Brij Mohan by virtue of the judgment in  their favour will not suffer, and their promotion already made will  not be affected by that judgment.

       On behalf of the Union of India three main objections have  been raised.  In the first instance, it is submitted that this Court  should not entertain an application for clarification three and a half  years after the judgment of this Court dated April 26, 2000.   Secondly, it is contended that the applicants are seeking  clarification from this Court to the effect that though a part of the  seniority list should be prepared in accordance with paragraph 206  of the P & T Manual, the rest of it be prepared in accordance with  the 1996 Rules.  Since the larger Bench held that the Statutory  Rules of 1966 will supersede the administrative instructions  contained in the Manual, there is no need to undertake this exercise  as it would result in unnecessary complications.  Lastly, an  objection has also been raised on the ground that in the case of Shri  Parmanand Lal this Court had protected his seniority as well as  promotion but in the instant case only the promotion has been  protected and not the seniority.

       So far as the last submission is concerned, we consider the  submission to be hyper technical and does not deserve serious  consideration.  If the promotions have been protected, it is only on  the basis of seniority determined by the concerned authority in  accordance with the principles laid down in the earlier judgments.

       So far as the question of delay is concerned, the applicants  have explained that after the judgment of this Court, they have not  been sitting idle. They have referred to the various proceedings  taken by them before this Court, before the Central Administrative  Tribunal, New Delhi and thereafter before the High Court.  In fact,  while disposing of their writ petition, the Delhi High Court in its  Order of December 16, 2002 observed that since the issue involved  interpretation of the judgment of this Court in  (2000) 9 SCC 71

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(supra) the petitioners were free to approach this Court seeking  clarification.  The applicants, thereafter filed a Special Leave  Petition No.9189 of 2003 which was withdrawn by the petitioners  with liberty to seek clarification of the judgment and order of this  Court.  We are, therefore, satisfied that this application cannot be  rejected on the ground of delay.   

       The 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).

       We, 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 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’s judgment in Parmanand Lal’s 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.