http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: MADRAS TELE.S.C.  & S.T.  SOCIAL WELFARE ASSOCIATION.

DATE OF JUDGMENT:       26/04/2000

BENCH: G.B.Pattanaik, R.P.Sethi, Shivaraj V. Patil

JUDGMENT:

     PATTANAIK,J.

     I.A.2/99.

     This  is  an  application by Union of  India,  seeking clarifications,  being  of the opinion that the Judgment  of this  Court  in the case of Union of India vs.  P.N.Lal  and Ors.,  in  S.L.P.   Nos.  3384-86/86 runs  contrary  to  the Judgment of this Court dated 13.2.97 in the case of Union of India vs.  Madras Telephone SC/ST Social Welfare Association in  C.A.   No.   4339  of 1995.  By  this  application,  the department also seeks further directions as to the manner in which  judgment  of  the  Central  Administrative  Tribunal, Hyderabad  dated 5.1.96 as well as the judgment of the  High Court  of  Andhra  Pradesh dated 28.10.97,  passed  in  Writ Petition No.  23522/97 would be implemented, since according to  the  department,  the directions contained  therein  run contrary to the principle enunciated in the judgment of this Court  in P.N.  Lals case.  The Union of India has filed an application  for condonation of delay in filing  application for directions, which has been numbered as I.A.  No.  3/99.

     After  the disposal of C.A.No.  4339/95 by order dated 13.2.97,  as  the  directions  given therein  had  not  been implemented,  the  Madras  Telephone  SC/ST  Social  Welfare Association  filed a contempt Petition, which was registered as  Contempt  Petition(Civil)  No.    121/1999.   When  that application  had  been listed before a Bench of two  learned Judges  of  this  Court  on  16.11.99,  an  application  for intervention  had  been filed by a group of officers and  it was  contended by the interveners that the judgment of  this Court  in  C.A.   No.   4339/95 has  been  rendered  without noticing  four  earlier judgments, each one rendered by  two Judge  Bench.   The  said  interveners  had  also  filed  an application  for recalling the order dated 13.2.97 passed in C.A.   No.  4339/95, on the ground that they were not  party to  the  said appeal.  In view of the conflict in  different judgments  of this Court, rendered by two Honble Judges  in each  of  the  matters,  the Bench  hearing  the  matter  on 16.11.99,  passed an order that the matters be placed before a  Bench of three Hon’ble Judges and that is how this  group of matters have been placed before us.

     I.A.   No.10/2000.   In  I.A.  No.2/99, filed  by  the Union of India for clarifications and directions, as already

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

stated,  an  application for intervention had been filed  by four persons, claiming themselves to be vitally affected, if the  judgment  of  this  Court in C.A.No.   4339/95  is  not implemented  and the said Intervention Application has  been numbered as I.A.  No.10 of 2000.

     I.A.   No.9/99.  One Shri Parmanand Lal, who has  been permitted to intervene in Contempt Petition No.  121/99, has filed  an application, seeking permission to file additional documents  and  said application has been numbered  as  I.A. No.9/1999.

     I.A.   No.11/2000.   An application has been filed  by the  Union of India for impleading P.N.Lal, Brij Mohan,  who were  the respondents in SLP Nos.  9063-64/92,  19716-22/91, 16698/92  and 5398/96 as well as several other persons to be impleaded  as parties, which has been registered as  I.A.No. 11/2000.   This  application has been filed because  of  the observations  made by this Court, while hearing this  matter on  20th  of January, 2000, wherein the Court  had  observed that the consequence of divergent views has put the Union of India in quandary and it is, therefore necessary to consider and  decide which of the two divergent views is the  correct one.  The Court also further observed that all parties whose interest  would  be affected, are before the Court,  but  we direct the Union of India specifically, to implead Parmanand Lal in its interim application( I.A.  2/99.)

     I.A.  No 12/2000 Parmanand Lal, himself also had filed an  application for intervention and directions, who is  the beneficiary  of  the order of this Court dated 8.4.86,  when the  Special  Leave Petition Nos.  3384-86 of 1986 filed  by the  Union  of  India was  dismissed,  necessarily,  thereby upholding  the  order of Allhabad High Court passed in  Writ Petition  No.   2739 of 1981, filed by said  Parmanand  Lal. The said I.A.  has been registered as I.A.  No12/2000.  C.A. Nos.   6485-86 of 1998 is by Parmanand Lal, directed against the  order  of  Central Administrative  Tribunal,  Principal Bench,  New Delhi, passed in R.A.No.  170/97 on 18.9.97,  as well as the Order of the said Tribunal in O.A.  No.  2646 of 1993   dated  11.4.97.   In   the  aforesaid  Civil   Appeal Nos.6485-86   of   1998,  said   Parmanand  Lal,  filed   an application for interim relief, which has been registered as I.A.  Nos.  4 and 5 of 1999.

     I.A.No.   3/99,  filed  by  the  Union  of  India  for condoning  the  delay stands allowed.  I.A.   No.   10/2000, filed  for  intervention  by four persons in  I.A.   No.2/99 stands  allowed.  I.A.  No.  9/99, filed by Parmanand Lal to intervene  in  the  Contempt   Petition  No.121//99   stands allowed.   I.A.   No.  11/2000, filed by the Union of  India for  impleadment  of  Parmanand Lal and  Brij  Mohan  stands allowed.   I.A.  No..12/2000, filed by Parmanand himself for intervention also stands allowed.

     I.A.   No.   2/99,  filed by the Union  of  India  for clarification,  Contempt  Petition(C) No.  121/99, filed  by the  Madras Telephone SC/ST Social Welfare Association, C.A. Nos.  6485-86 of 1998 filed against the order of the Central Administrative Tribunal, Principal Bench, New Delhi and I.A. Nos.   4  & 5 of 1999, filed in C.A.  Nos.   6485-86/98  for interim  relief  would  stand  disposed of  by  this  common judgment.

     The  controversy  between the parties centers round  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

question,  as  to how the selection list has to be drawn  up for  the  purpose  of  promotion to the  post  of  Assistant Engineer   from   the   post    of   Junior   Engineer    in Tele-communication  circles.  It may be stated that prior to 1966,   the  Junior  Engineers   were  being  designated  as Engineering   Supervisors     Telecom/Wireless   Supervisors Telecom.   Before 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  (hereinafter  referred  to  as  the  recruitment rules),  came  into  force the promotion from the  post  of erstwhile  Engineering Supervisor Telecom (re-designated  as Junior Engineer) to the post of Assistant Engineer was being made  in  accordance  with  the  instructions  contained  in paragraph  206  of the Post and Telegraph Manual Volume  IV. The   said  instructions  were   obviously   the   executive instructions,  which  governed the field in the  absence  of statutory  rules.   The aforesaid instructions contained  in para  206  of the P& T Manual are extracted herein below  in extenso for better appreciation of the point of controversy:

     206.   All  Junior Engineers recruited after the  1st January,  1929,  under  the new system after serving  for  5 years  in  Engineering Branch may be permitted to appear  at the  Departmental Qualifying Examination, which will be held from time to time in the subjects enumerated below, provided they  have  a good record.  This qualifying  examination  is intended   to  test  the   general  ability  of  Engineering Supervisors  and their knowledge in the latest  developments in  Telegraphy and Telephony.  A pass in this examination is an   essential   condition  for   promotion   in   Telegraph Engineering  and Wireless service, Class II.  2.   Promotion to the T.E.  & W.S.  Class II, will be made according to the principle  of  seniority-cum-fitness   but  the  Engineering Supervisors who pass the qualifying examination earlier will rank  senior as a group to those who pass the examination on subsequent   occasions  i.e.   officials   who  passed   the examination  held  in  1956 will rank as en bloc  senior  to those  who  passed in 1957.  Their seniority inter se  will, however,  be  according to their seniority in the  cadre  of Engineering  Supervisors.   3.   This  examination  will  be conducted in the following three subjects:- (i)Telegraph and Telephony (Without books) 100 marks

     (ii)Line  Construction and Transmission(Without books) 100 marks (iii)Code Rules(With books) 100 marks

     One  question  paper will be set in each subject.   In order  to  qualify  in the examination  the  officials  must obtain  10%  of  marks in each subject.   4.   The  detailed syllabus  for  the examination is indicated in Appendix  No. 15A.

     Under the aforesaid instructions all Junior Engineers, on  completion  of  five  years of  service  in  Engineering Branch,  were being permitted to appear at the  departmental qualifying  examination,  provided  they   maintain  a  good service  record.  The qualifying examination was intended to test  the general ability of the Engineering Supervisors and pass in the said examination was essential pre-condition for promotion  to  the  service in Class II.  The  promotion  to service  in  Class  II was being made on  the  principle  of seniority-  cum-fitness.   It also further  stipulates  that those of the supervisors who pass the qualifying examination earlier,  would  rank en bloc senior to those who  pass  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

examination later but inter se seniority of supervisors, who pass  the  examination  in one group  was  being  determined according  to  their seniority in the cadre  of  Engineering Supervisor.   The  recruitment rules came into force  w.e.f. 15th  of  June,  1966,  on being notified.  Rule  5  of  the Recruitment  Rules provides the method of recruitment to the service,  the period of probation and the lower grades  from which the promotion would be made, as indicated in columns 5 to  13 of the Schedule and Appendix I and Appendix II to the rules.   The service has been defined in Rule 2(e) to mean the  Telegraph  Engineering  Service   (Class  II).    Under Appendix  I,  recruitment to the service is required  to  be made  entirely  by  promotion on the basis of  selection  of officials, indicated in paragraph (ii) of the said Appendix, through  a qualifying departmental examination.  It  further stipulates  that  an approved list has to be prepared  by  a duly   constituted  Departmental   Promotion  Committee   by selection  from  amongst the officials, who qualify  in  the departmental   examination.   Para  (ii)   of   Appendix   I enumerates  the  category of officials who are eligible  for promotion to the service in Class II.  Under Paragraph (iii) of  Appendix I, the departmental qualifying examination  for promotion  to  the Service in Class II is normally  held  at least  once  in a calendar year in the manner prescribed  in Appendix  III.   The Engineering Supervisors  must  complete five years of service, so as to be eligible for appearing at the  departmental  qualifying examination.  Under  Paragraph (v)  of said Appendix I, the eligibility list of  candidates for  consideration of Departmental Promotion Committee is to be  prepared  in accordance with the instructions as may  be used  by  the Government from time to time.   In  accordance with  the provisions contained in paragraph (v) of  Appendix I,  the  Government of India, Department  of  Communication, issued instructions dated 28th of June, 1966, indicating the procedure  for  preparation  of   eligibility  list  of  the officers  for being placed before the Departmental Promotion Committee.   Under  the said instructions, separate list  is required  to  be  prepared  for each  year  of  recruitment. Paragraph  (v)  of  the  aforesaid  instructions  is  rather important  for our purpose, which is extracted herein  below in extenso:

     (v)   All   officials  of  a   particular   year   of recruitment/appointment,  who  have qualified in an  earlier examination, would rank en bloc senior to those officials of the  same  year  of recruitment/appointment who  qualify  in subsequent examination.

     The  aforesaid  instructions  unequivocally  indicates that  from amongst the Engineering Supervisors, recruited in a  particular  year  of  recruitment,  those  who  pass  the departmental examination for promotion earlier would rank en bloc  senior  to  those,  who   pass  the  said   qualifying examination at a later point of time.  It may be stated that under  paragraph  (i) of the aforesaid instructions, it  was incumbent  for the authorities to prepare separate list  for each  year  of  recruitment of the persons from  the  feeder category.   The  recruitment rules were amended in the  year 1987  and  under  the amended provisions, the  criteria  for selection  is on the basis of seniority-cum-fitness.   Thus, seniority plays an important role in the matter of promotion to  the  post of Class II Engineering Service.   The  Madras Telephone  SC/ST Social Welfare Association had filed a writ petition  in  the High Court of Madras with the prayer  that the   eligibility  list  be   prepared  by  determining  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

seniority  on  the basis of confirmation as Junior  Engineer and  that list should form the basis for promotion to  Class II  service.  The aforesaid writ petition stood  transferred to  the Central Administrative Tribunal under Section 29  of the  Administrative  Tribunal  Act,  1985  and  was  finally disposed  of  by the Tribunal by Judgment dated  31.12.1986. The  Tribunal  came  to  the conclusion  that  the  year  of recruitment  for the purpose of seniority is extraneous  and irrelevant  and it accordingly directed that the eligibility list  be  arranged  according  to the year  of  passing  the qualifying  examination  and  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 assailed  by the Union of India in the Supreme Court and upon leave being granted,  the same was registered as Civil Appeal No.   4339 of  1995.   This  Court  came to  the  conclusion  that  the directions   given  by  the   Tribunal  really  amounts   to re-writing  the rules, which could not have been done by it. On   consideration  of  the   relevant  provisions  of   the Recruitment  Rules and the instructions, issued  thereunder, the  Court came to the conclusion that the eligibility  list has  to  be prepared according to the year  of  recruitment. This  Court did not accept the stand of the Association that the  list  should be prepared with reference to the year  of confirmation.   When  the  Court disposed of  the  aforesaid Civil  Appeal,  the Judgment of the Allahabad High Court  in the  writ  petition, filed by P.N.Lal and Brij  Mohan  (Writ Petition  Nos.  2739/81 and 3652/81) had not been brought to the  notice  of the Court and against the said  Judgment  of Allahabad  High  Court, the Union of India had come  to  the Supreme Court in Special Leave Petition No.  3384-86 of 1986 and  that  Special Leave Petition was dismissed  on  8.4.86. While  dismissing  the  Special Leave  Petition,  the  Court passed the following order:

     ...............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..................

     The  Allahabad High Court considered the grievances of the  applicant before him viz.  Parmanand Lal and Brij Mohan on  the basis of instructions contained in paragraph 206  of the P & T Manual and the provisions of the Recruitment Rules did not come up for consideration.  The Court ultimately had directed  that the two petitioners before it viz.  Parmanand Lal  and Brij Mohan should be promoted with effect from  the date  prior to a date of promotion of any person, who passed the  departmental examination, subsequent to them and adjust their  seniority accordingly.  When this Court dismissed the Special  Leave Petition filed by the Union of India,  though it  was stated that the special leave petition is  dismissed on  merits,  but  in the very next sentence  the  Court  had indicated  that in the facts and circumstances of the  case, the Court was not inclined to interfere with the judgment of the  High  Court  except  to  a  limited  extent.   It   is, therefore,  obvious that while dismissing the special  leave petition,  the Court had not examined the provisions of  the recruitment  rules  and the instructions issued  thereunder, providing  the  procedure  for promotion to the  service  in Class  II and, therefore, there was no reason for the  Union of  India to think that what has been stated in Civil Appeal No.   4339  of  1995, runs contrary to the judgment  of  the Allahabad  High Court, which stood affirmed by dismissal  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

the  special  leave  petition  Nos.    3384-86  of  1986  on 8.4.1986.  The Principal Bench of the Central Administrative Tribunal,  New Delhi, disposed of O.A.No.  2667 of 1991  and the Review Application filed before it as Review Application No.   195 of 1992 was disposed of by the Tribunal on 29th of June,  1992, following the views of the Allahabad High Court in  interpreting  paragraph  206 of the  Post  &  Telegraphs Manual   and   against   the   said  judgment,   the   Tele- communication  Engineering Service Association had preferred Special  Leave Petition No.  16698 of 1992 and batch,  which stood disposed of by judgment dated 13th of May, 1994.  This Court  came to hold that the Tribunal was right in following the Judgment of the Allahabad High Court in Parmanands case which has become final by disposal of the Union Governments SLP against the same, which deals with the interpretation of paragraph  206  of the P & T Manual.  This Court  also  took notice  of  another  judgment  of the Court  dated  18th  of September,  1992  passed in T.P.(Civil) No.  417 of 1992  in Writ  Petition  (Civil)  No.  460 of 1992  along  with  SLP. (Civil)  Nos.   9063-64  of 1992.  In the judgment  of  this Court  dated 18th of September, 1992 in T.P.(Civil) No.  417 of 1992 in Writ Petition(Civil) No.  460 of 1992 in the case of Junior Telecom Officers Forum & Ors.  Vs.  Union of India &  Ors.,  this  Court was of the view that  the  controversy relates  to the mode of promotion to the Telecom Engineering Service  Group  B as well as fixation of seniority of  the Junior Telecom Officers/Assistant Engineers in that category and  the preparation of eligibility or the approved list for the  said  purpose by the department in accordance with  the recruitment  rules  and  paragraph 206 of the P &  T  Manual Volume  IV.   The Court no doubt has noticed  the  arguments advanced  by  placing  reliance  on the  provisions  of  the recruitment  rules  of  1966 but it ultimately came  to  the conclusion  that  the views of the Allahabad High Court  has reached  a  finality  because of the dismissal  of  the  SLP against  the  same  and  as such  the  eligibility  list  is required  to be prepared in accordance with paragraph 206 of the  P & T Manual.  The aforesaid conclusion is  undoubtedly incorrect,  as  the  Judgment of the  Allahabad  High  Court proceeded by interpreting paragraph 206 of the P & T Manual, which  was an administrative instruction which governed  the field  until  promulgation of the recruitment  rules  framed under  proviso to Article 309 of the Constitution.  Once the statutory  recruitment  rules  have   come  into  force  and procedure  has also been prescribed under the said rules for preparation   of  the  eligibility   list  of  officers  for promotion   to   the  Engineering   service  Class   II   by notification  dated 28th of June, 1966, it is that procedure which  has  to  be adopted and  the  earlier  administrative instruction  contained in paragraph 206 of the P & T  Manual cannot be adhered to.  Under the recruitment rules read with Schedule  appended thereto and Appendix I to the rules,  the recruitment  to  the  service  in Class II has  to  be  made entirely  by  promotion on the basis of selection through  a qualifying  departmental  examination.    The   Departmental Promotion  Committee  is duty bound to prepare  an  approved list  by selection from amongst the officials who qualify in the  departmental examination.  In view of the amendment  to the  rules  made on 4th of February, 1987, the criteria  for selection  is seniority-cum-fitness.  In accordance with the prescribed  procedure  for preparation of eligibility  list, notified  by  the Government on the 28th of June, 1966,  the Departmental  Promotion  Committee has to  prepare  separate lists  for each year of recruitment in the feeder  category. In  other  words,  if in 1958,  the  Departmental  Promotion

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

committee  is recommending people for promotion to Class II, then  all  the  eligible  candidates   who  had  passed  the departmental examination and who had been recruited in 1950, are  to  be listed separately from those officers  who  also have  qualified departmental examination and were  recruited in  the  year 1951 and so on and so forth.   Once,  separate lists  are prepared by the Departmental Promotion  Committee of  the officers recruited in different recruitment years in the  feeder  category and the criteria for  promotion  being seniority-cum-fitness,  then  it would create no problem  in promoting  the  officers  concerned.   As to  the  inter  se position  of  the  officials belonging to the same  year  of recruitment  in  the  feeder category, the procedure  to  be adopted  has  been  indicated  in  paragraph  (iii)  of  the Memorandum  dated  28th of June, 1966.  In this view of  the matter,  we are of the considered opinion that the  Judgment of  this Court in Civil Appeal No.  4339 of 1995 has rightly been  decided in interpreting the relevant provisions of the recruitment  rules read with the procedure prescribed  under the  Memorandum dated 28th of June, 1966.  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, they will not suffer and their  promotion already made will not be affected by this judgment of ours.

     Since Departmental Authorities had not implemented the decisions  of  this Court in Civil Appeal No.  4339 of  1995 for  which a Contempt Petition had been filed, having regard to   the   circumstances  under   which   the   Departmental Authorities entertained bona fide difficulties, it would not be  proper  to  proceed against the  authorities  under  the contempt  and  the  contempt   proceedings  accordingly  are dropped.    We  would,  however   direct  the   Departmental Authorities  to  proceed  in  accordance  with  law  and  in accordance with the observations made by us in this Judgment and  promotions  may be made within a period of  six  months from the date of this judgment.

     CIVIL  APPEAL Nos.  6485-86 of 1998:  These appeals by Parmanand  Lal is directed against the order of the  Central Administrative  Tribunal  dated 11th of April,  1997.   Said Parmanand  Lal had approached the Tribunal, challenging  the order  of  reversion  dated  4.2.93 and the  basis  of  said reversion  was  refixation of the seniority in the  rank  of Engineering  Supervisor,  because  of   some  judgments   of different  Tribunals  and because of some Judgments of  this Court.  We have considered this question in great detail and we  have  held that the question of seniority in the  feeder cadre  of  Junior Engineers, when persons belonging  to  the same  recruitment year are recommended, has to be decided in accordance with paragraph (iii) of the Memorandum dated 28th of  June,  1966  and  in   accordance  with  the   statutory recruitment  rules  read with Appendix attached thereto  for promotion  to the posts in Group B service, separate  list has to be made in respect of each recruitment year.  We have also  held that after promulgation of the recruitment rules, the  administrative instructions contained in paragraph  206 of  the  P  & T Manual, will have no force.   We  have  also indicated  that the 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. This  being  the position and the Judgment of the  Allahabad High  Court  in  favour  of Parmanand  Lal  having  attained finality,  he  having  received  the  benefit  of  the  said

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

Judgment  and  having  been promoted, could  not  have  been reverted  because  of some latter Judgments  and  directions given  either  by  the Tribunals or by this Court.   On  the admitted  position that the applicant Parmanand was reverted by order dated 4.2.93 because of certain directions given by some  other Tribunals, deciding the principle of re-fixation of  seniority and it is on that basis an order of  reversion was  passed, we have no hesitation to come to the conclusion that  the order of reversion is untenable and unjustified on the grounds on which the said reversion has been passed, and as  such cannot be sustained in law.  We make it clear  that the  seniority of Parmanand in the cadre of Junior Engineer, fixed  on  the  basis of the directions  of  Allahabad  High Court,  after dismissal of the SLP 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  impugned  order  passed by the  Central  Administrative Tribunal  is  erroneous and we quash the same and allow  the civil  appeals  filed  by  the said  Parmanand  Lal.   After closure  of the arguments, an application has been filed  on 18th of April, 2000 by Promotee Telecom Engineers Forum, New Delhi  through  its President, seeking intervention  in  the matter, has prayed for an opportunity of being heard.  It is not  possible  to  re-hear  the matter  again.   The  prayer accordingly   stands  rejected.   All   these  appeals   and applications  are disposed of accordingly.  There will be no order as to costs.