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2001 DIGILAW 792 (AP)

Union Of India v. P. V. P. Sarma

2001-07-26

S.B.SINHA, V.V.S.RAO

body2001
JUDGMENT : S.B. Sinha, J. A short but interesting question of law arises for consideration in this writ petition. 2. The 1st respondent herein is a retired Assistant General Manager (Administration) in Telecom District, Visakhapatnam. While he was working as Superintendent, he filed O.A.No.931 of 1993 before the Central Administrative Tribunal, Hyderabad Bench for stepping up of his pay at par with one Shri Baleshwara Singh on the date when the latter was promoted to STT Group-B on notional basis, whereupon the Tribunal following its earlier decision in OA.No.974/93 and 1001/93, by a common order dated 5-12-1994 in O.A.No.32 of 1994 and batch directed thus: The applicants in other OAs viz., 1030/93,947/93 and 931/93 have to be given the pay equal to the pay of Sri Baleswara Singh as on the date of his regular promotion to STT Group-B on notional basis. We held in O.As. 974/93 and 1001/93 that the applicants therein should be given the monetary benefit from 3 years prior to the date of filling of the respective O.As. For the reasons stated therein, we find that the applicants herein also have to be given the monetary benefit from 3 years prior to the date of filing of the respective O.As. 3. An application for grant of special leave was filed against the said order but the same was dismissed in Civil Appeal Nos. 2254-58 of 1997 on 20-1-1997 on the ground of delay by the Apex Court without going into the merits. While things stood thus, the Apex Court considered the selfsame issue in Union of India and another v. R. Swaminathan, 1997 SCC (L&S) 1852 = (1997) 7 SCC 690 and held that the proviso appended to F.R. 22 (l)(a)(i) will have no application in such a case and the employees would not be entitled to grant of stepping up of pay at par with their juniors. It may be noted herein that OA.Nos. 974 and 1001 of 1993 relying on which the Tribunal passed orders in O.A.No. 931 of 1993 dated 5-12-1994; was also dealt with along with Swaminathan's case in Civil Appeal Nos. 11886-87 of 1996. It may be noted herein that OA.Nos. 974 and 1001 of 1993 relying on which the Tribunal passed orders in O.A.No. 931 of 1993 dated 5-12-1994; was also dealt with along with Swaminathan's case in Civil Appeal Nos. 11886-87 of 1996. Although in the case of the 1st respondent, the order of the Tribunal dated 15-12-1994 was implemented, the said order was sought to be recalled by proceedings No. ESA-1/Pay-Fixn/97-99/10 dated 17-7-1988 directing stepping down of his pay with effect from 12-9-1997 and also directed recovery of the amount paid on that basis. 4. The said order was the subject-matter of O.A.No.1045 of 1998 and by reason of the impugned order 3-8-1999, the same was disposed of directing: The facts, prayer, contentions and grounds are same as in OA. 1143/98 and OA 1400/98 which were disposed of today. Hence the order passed therein holds good in this case also. The impugned order is set aside and the applicant is entitled for the pensionary benefits as ordered in O. A 931/93. 5. Mr. L. Nrasimha Reddy, learned Counsel appearing on behalf of the petitioner, inter alia, submits that the Tribunal had acted illegally and without jurisdiction in passing the impugned order insofar as it failed to consider that it was bound by the decision of the Apex Court in Swaminathan' case (1 supra). 6. Mr. Ramachandra Rao, learned Counsel appearing on behalf of the respondent, on the other hand, would submit that as the order passed by the Tribunal herein became final and the same had been implemented, the subsequent decision of the Apex Court would not entitle the petitioner to pass an order contrary to the binding judgment. 7. It is true that the Original Application/Tiled by the 1st respondent herein was allowed, but the said application was allowed in terms of an earlier decision of the Tribunal in O.A. Nos. 974 and 1001 of 1993 dated 29-11-1994 which was the subject-matter of issue in Swaminathan's case. The Special Leave petition filed against the order passed in O.A.No.931 was dismissed only on the ground of delay only. The merit of the matter was, therefore, not decided. 8. However, the Supreme Court allowed the Civil Appeal Nos.11886-87 filed against the order-dated 29-11-1994 in O.A.Nos.974 and 1001 of 1993 along with Swaminathan's case (1 supra). The Special Leave petition filed against the order passed in O.A.No.931 was dismissed only on the ground of delay only. The merit of the matter was, therefore, not decided. 8. However, the Supreme Court allowed the Civil Appeal Nos.11886-87 filed against the order-dated 29-11-1994 in O.A.Nos.974 and 1001 of 1993 along with Swaminathan's case (1 supra). By reason of the aforementioned Judgment, the Apex Court, inter alia, held: The aggrieved employees have contended with some justification that local officiating promotions within a circle have resulted in their being deprived of a chance to officiate in the higher post if such chance of officiation arises in a different circle. They have submitted that since there is an All India seniority for regular promotions, this All Indian seniority must prevail even while making local officiating appointments within any circle. The question is basically of administrative exigency and the difficulty that the administration may face if even short term vacancies have to be filled on the basis of All India seniority by calling a person who may be stationed in a different Circle in a region remote from the region where the vacancy arises and that too for a short duration. This is essentially a matter of administrative policy. But the only justification for local promotions is their short duration. If such vacancy is of a long duration there is no administrative reason for not following the all India seniority. Most of the grievances of the employees will be met if proper norms are laid down for making local officiating promotions. One thing, however, is clear. Neither the seniority nor the regular promotion of these employees is affected by such officiating local arrangements. The employees who have not officiated in the higher post earlier, however, will not get the benefit of the proviso to fundamental Rule 22. The employees in question are, therefore, not entitled to have their pay stepped up under the said Government Order because the difference in the pay drawn by them and the higher pay drawn by their juniors is not as a result of any anomaly; nor is it a result of the application of Fundamental Rule 22(I)(a)(1). The appeals are, therefore, allowed and the impugned orders of different Benches of the Central Administrative Tribunal which have held to the contrary are set aside. There will, however, be no order as to costs. 9. The appeals are, therefore, allowed and the impugned orders of different Benches of the Central Administrative Tribunal which have held to the contrary are set aside. There will, however, be no order as to costs. 9. The decision of the Apex Court relate to the interpretation of FR 22(I)(a)(i) and the proviso appended thereto. 10. By reason of the judgment of the Apex Court in R. Swaminathan's case (1 supra), the basis of the judgment in O.A.No.931 of 1993 was taken away. The Apex Court while dismissing the SLP, as indicated supra, did not enter into the merit of the matter. 11. Having regard to the fact that by reason of the said judgment, the Apex Court set aside the judgments passed by the different Benches of the Central Administrative Tribunal, in our opinion, it cannot be said that any injustice has been caused to the 1st respondent herein. 12. The procedural rules of estoppel, waiver or res judicata cannot be applied in a case where an order had been passed without any jurisdiction. 13. In terms of Articles 141, 142 and 144 of the Constitution of India, the law declared by the Supreme Court shall not only be binding on all Courts but all the authorities, civil and judicial, must act in aid of the Supreme Court or in furtherance thereto. 14. In this situation we are of the opinion that the impugned order cannot be sustained. However, keeping in view the equitable principles, we are of the opinion, that the amount paid to the petitioner should not be recovered. But, this judgment should not be treated as a precedent. 15. For the reasons aforementioned, the Writ Petition is allowed and the impugned order of the Tribunal is set aside subject to the observations made above. There shall be no order as to costs.