UNION OF INDIA v. MADRAS TELEPHONE S.C. AND S.T., SOCIAL WELFARE ASSOCIATION, ETC

Citation: [2000] 3 S.C.R. 618

Court: Supreme Court of India

Bench: G.B. PATTANAIK, R.P. SETHI, SHIVARAJ V. PATIL

Judgment text

UNION OF INDIA ~-v. MADRAS TELEPHONE S. C. AND S. T. , SOCIALWELFARE ASSOCIATION, ETC. APRIL 26, 2000 [G. B. PATTANAIK, R. P. SETHI AND SHIVARAJ V. PATIL, JJ. ] Telegraph Engineering Sen1ice Class II Recruitment Rules, 1966: Rules 2(e) and 5-Schedule-Appendix I and JI. Post and Telegraph Manual: Volume IV-Paragraph 206. Service Law : Telecommunication circles-Pmmotion to the post ofAssistant Engineer from the post ofJunior Engineer-Pmcedure for pmmotion-Held procedure is that prescribed under 1966 Rules and not para 206 ofthe P & T Manual- Held separate eligibility list should be preparedfor each year ofrecruitment. Contempt--Supreme Cowt decision-Non-implementation by Departmental Authorities-Gmund-Bona-fide beliefthat there were two conflicting judgments-Clarification by Supreme Cowt-Held in the circumstances contempt proceedings should be dropped. Administrative Law: / Statutory Rules-Executive instructions-Conflict between-Applicability ofrules or instructions.

Constitution ofIndia, 1950 : A1ticle 136-Appea,l-Hearing-Closure ofarguments-Subsequently Intervention Application made for oppo1tunity ofbeing heard-Rejection of The Madras Telephone SC/ST Social Welfare Association filed a petition for directions that the eligibility list of Officers for promotion to 1- "' Engineering service be prepared by determining the seniority on the basis of confirmation as . Junior Engineer and that list should form the basis for promotion to Class-II Service. The Tribunal came to the conclusion that U. O. I. \(MADRAS TELEPHONE S. C. AND S. T. ASSN. 619 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 examinationin the same year, the list should be according to their merit, as seen from the marks obtained in the examination.

Union of India challenged the said judgment before this Court. By its judgment dated 13. 2. 1997 in Union of India v. Madras Telephone SC/ST Social Welfare Association, (C. A. No. 4339 of 1995), this 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. In the connected case (SLP (C) No. 3384-86 of 1986) the Allahabad High Court considered the grievance', of the petitioners 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 High Court ultimately directed that the petitioners before it should be promoted w. e. f. the date prior to a date of promotion of any person, who passed the department examination subsequent to them and adjust their seniority accordingly.

Against the said judgment of Allahabad High Court, the Union of India preferred Special Leave Petition. By its order dated 8. 4. 86 this Court dismissed the Special Leave Petition in Union ofIndia v. P. N. Lal. Union of India has filed an application seeking clarifications on the ground that the judgment of this Court in the case of Union ofIndia v. P. N. Lal runs contrary to the judgment of this Court in Union ofindia v. Madras Telephone SC/ST Social Welfare Association. The Madras Telephone SC/ST Social Welfare Association has filed a contempt petition before this Court contending that the directions given by this Court in Union of India v. Madras Telephone SC/ST Social Welfare Association had not been implemented. The other connected appeal (Nos. 6485-86 of 1998) is directed against the order of Central Administrative Tribunal. The appellant had challenged before the Tribunal his order of reversion dated 4. 2. 1993.

The basis of the said reversion was refixation of the seniority in the rank of Assistant Engineer, because ofsome judgments ofdifferent Tribunals and because of some judgments of this Court. The question in these appeals and applications is 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 ofJunior Engineer in the Tele-Communication Circles. Disposing of the appeals and applications, the Court HELD : 1. Before the Telegraph Engineering Service Class-IT Recruitment Rules, 1966 framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India came into force, promotion from the post of erstwhile Engineering Supervisor Telecom (re-designated as Junior Engineer) to the post ofAssistant 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 recruitment rules came into force w. e. f. 15th of June, 1966, on being notified. Once the statutory recruitment rules have come into force and procedure has also been prescribed under the said rules for preparation ofthe eligibility list of officers for promotion to the EngineeringService Class Il by notification dated 28th of June, 1966, itis 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 senioritycum-fitness. In accordance with the prescribed procedure for preparation ofeligibility list, notified by the Government on the 28th ofJune, 1966, the Departmental Promotion Committee has to prepare separate lists for each year of recruitment in the feeder category. 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 f- ' 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 confirrnation. 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 U. O. I. v. MADRAS TELEPHONE . 'i. C. AND S. T. ASSN. [PATTANAIK, J.

] 629 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 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 Parmanand's case which has become final by disposal of the Union Gove1mnent' s 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, ~2 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. v. 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 concll1ilion 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 Matifttil, whlcb.

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 recruit- •• ment in the feeder category. In other words, if in 1958, the Departmental Promotion 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 y 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 U. 0. 1. v. MADRAS TELEPHONE S. C. AND S. T. ASSN. [PATTANAIK, J. ) 631 ,. ;. Ao. bad 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 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. TN. A. Appeals and Applications disposed of.