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2017 DIGILAW 1161 (ALL)

UNION OF INDIA v. CHANDRA PRAKASH

2017-05-02

SUDHIR AGARWAL, VIRENDRA KUMAR II

body2017
JUDGMENT By the Court.—Heard Sri Pratul Kumar Srivastava, learned counsel for petitioners and Sri Avnish Kumar Singh, Advocate holding brief of Sri A.S. Parihar, learned counsel for respondent. 2. The writ petition is directed against judgment and order dated 7.3.2002 passed by Central Administrative Tribunal, Allahabad (hereinafter referred to as the “Tribunal”) in Original Application No. 1926 of 1994, whereby Tribunal has held that applicant-respondent, Chandra Prakash is entitled for benefit of Biennial Cadre Review Promotion Scheme (hereinafter referred to as the “BCRP Scheme”) for promotion in Grade IV from the date his juniors were promoted with all consequential benefits, except arrears of salary, relying on earlier judgment of Tribunal in Smt. Santosh Kapoor and others v. Union of India and others (Original Application No. 1455 of 1991), decided on 7.7.1992 whereagainst appeal was also dismissed by Supreme Court. 3. This matter was initially dismissed by this Court vide judgment and order dated 25.4.2013, passing following order: “Impugned judgment and order passed by the tribunal is based on Apex Court’s judgment. It does not seem to suffer from any impropriety or illegality. The writ petition is devoid of merit. It is accordingly dismissed.” 4. Petitioners carried matter in appeal before Apex Court and vide judgment dated 23.1.2017 passed in Civil Appeal No. 877 of 2017 Supreme Court has allowed appeal, set aside this Court’s order dated 25.4.2013 and remanded matter in view of the fact that matter was considered by a Larger Bench in Bharat Sanchal Nigam Limited v. Ghanshyam Dass and others, 2011(4) SCC 374 and, therefore, matter required to be reconsidered in the light of aforesaid judgment. 5. Facts in brief are that applicant-respondent was initially appointed as Telegraph Assistant in the year 1957. There was a promotion scheme called as One Time Bound Promotion Scheme (hereinafter referred to as the “OTBP Scheme”). Applicant-respondent was promoted as Telegraph Assistant-II in November, 1983 in pay scale of Rs. 260-480 (revised scale Rs. 1400-2300). Thereafter there was another promotion scheme, i.e., BCRP Scheme. Applicant-respondent was considered under aforesaid scheme and promoted to Selection Grade Telegraph Assistant-III in pay scale of Rs. 1600-2660/- vide order dated 8.12.1990. BCRP Scheme also provided that those Telegraph Assistants who have completed 26 years of service in basic cadre including promoted cadre, be considered for promotion to Grade-IV on the basis of their seniority in basic grade. 6. Applicant-respondent was considered under aforesaid scheme and promoted to Selection Grade Telegraph Assistant-III in pay scale of Rs. 1600-2660/- vide order dated 8.12.1990. BCRP Scheme also provided that those Telegraph Assistants who have completed 26 years of service in basic cadre including promoted cadre, be considered for promotion to Grade-IV on the basis of their seniority in basic grade. 6. Applicant-respondent stated that there were some persons, namely, Sri R.N. Diwakar and Sri P.N. Singh in Kanpur Division, juniors to him in basic grade, and were promoted in Grade-IV w.e.f. 20.10.1990, hence applicant-respondent was also entitled for promotion from said date. In this regard reliance was placed on judgment of Tribunal in Smt. Santosh Kapoor (supra). Tribunal has accepted said prayer and allowed original application. 7. After dismissal of appeal by Supreme Court in Smt. Santosh Kapoor’s case (Civil Appeal No. 3201 of 1993, decided on 9.9.1993), another coordinate Bench found serious discrepancies created by said situation in Bharat Sanchal Nigam Limited v. Ghanshyam Dass (supra), and hence referred the matter to be considered by a Larger Bench vide order dated 14.3.2007 reported in 2011(4) SCC 385 . Larger Bench ultimately has decided matter vide judgment dated 17.2.2011 observing that judgment in Smt. Santosh Kapoor (supra) was not a judgment in rem applicable to all other persons and was confined to applicant in that case only. Those who were sitting over their rights and approached Tribunal subsequently cannot claim benefit of said judgment retrospectively. Supreme Court also referred to subsequent clarification issued by Government vide circular dated 13.12.1995 and said that matter of promotion in Grade-IV will be governed by said circular and not by judgment rendered in Smt. Santosh Kapoor (supra). 8. Learned counsel appearing for applicant-respondent, however, submitted that in Bharat Sanchal Nigam Limited v. Ghanshyam Dass (supra) original application was filed in 1997 while in the present case applicant approached Tribunal in 1994, therefore, law laid down in Bharat Sanchal Nigam Limited v. Ghanshyam Dass (supra) will not apply to the applicant-respondent. However, in our view, judgment in Bharat Sanchal Nigam Limited v. Ghanshyam Dass (supra) applies to the facts of this case also and applicant-respondent is not entitled for the benefit prayed before Tribunal. 9. Admittedly, Smt. Santosh Kapoor (supra) was a case wherein original application was filed in 1991 and decided vide judgment dated 7.7.1992. However, in our view, judgment in Bharat Sanchal Nigam Limited v. Ghanshyam Dass (supra) applies to the facts of this case also and applicant-respondent is not entitled for the benefit prayed before Tribunal. 9. Admittedly, Smt. Santosh Kapoor (supra) was a case wherein original application was filed in 1991 and decided vide judgment dated 7.7.1992. Applicant-respondent in present case filed original application only in 1994 though limitation to approach Tribunal is one year only. In 1994 or within one year prior thereto there was no cause of action available to applicant-respondent to seek benefit of Tribunal’s judgment rendered on 7.7.1992. Therefore, observations made by Apex Court in para 25 and 26 of judgment in Bharat Sanchal Nigam Limited v. Ghanshyam Dass (supra) are fully applicable and attracted in this case also. We may reproduce paras 25 and 26 of the judgment as under: “25. The principle laid down in K.I. Shephard (supra) that it is not necessary for every person to approach the Court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to Court to seek relief would apply only in the following circumstances: (a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees; (b) where the relief granted by the Court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not; (c) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the Petitioners before the Court; and (d) where the Court expressly directs that the relief granted should be extended to those who have not approached the Court. 26. On the other hand, where only the affected parties approach the Court and relief is given to those parties, the fence-sitters who did not approach the Court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others.” 10. 26. On the other hand, where only the affected parties approach the Court and relief is given to those parties, the fence-sitters who did not approach the Court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others.” 10. Further we may also reproduce ultimate effect of Smt. Santosh Kapoor’s judgment, whether it can apply to the persons who are subsequently approached Tribunal as considered in paras 29 and 30 of judgment in Bharat Sanchal Nigam Limited v. Ghanshyam Dass (supra) as under: “29. We also find on a reading of paragraph 8 of the order dated 7.7.1992 of the Central Administrative Tribunal in Santosh Kappor case that the Tribunal gave liberty to the Government to consider employees who were senior to the applicants in that case in a scale of Rs. 1600-2660 (Grade-III) and who may have already been given the scale of Rs. 2000-3200 (Grade-IV) at the cost of those senior in the basic grades by any different interpretation of the BCR Scheme then one given by the Tribunal by suitable adjustments in the number of posts by upgradation as necessary. It appears that pursuant to this liberty granted to the Government, Lakhpat Rai Gumbar had been promoted to Grade-IV scale w.e.f. 8.1.1993 because of his seniority in Grade-III scale over two the Respondents in the Civil Appeal No. 4369 of 2006, Ghanshyam Dass and others and Shyamlal Sachdeva, even though he was junior to these officers in the basic grade. Hence, Lakhpat Rai Gumber was promoted to one of the posts in Grade-IV created by the Government for the specific purpose of protecting promotions done on a different interpretation of the BCR Scheme by the Government as allowed by the Tribunal in the order dated 7.7.1992 in Santosh Kapoor case and the respondents in these appeals can have no claim of promotion to these supernumerary posts. Moreover, if the respondents were in any way aggrieved by the promotion of Lakhpat Rai Gumber and others who were junior to them in the basic grade, they could have challenged their promotion in the appropriate forum, but they have not done so. 30. Moreover, if the respondents were in any way aggrieved by the promotion of Lakhpat Rai Gumber and others who were junior to them in the basic grade, they could have challenged their promotion in the appropriate forum, but they have not done so. 30. We further find on a reading of the circular dated 13.12.1995 of the Government that after the order dated 7.7.1992 of the Tribunal in Santosh Kapoor case was affirmed by this Court in Civil Appeal No. 3201 of 1993 on 9.9.1993 the Government undertook a review of the existing procedure of promotion to Grade-IV and decided in supersession of earlier instructions that promotion to Grade-IV may be given from amongst officials in Grade-III on the basis of their seniority in the basic grade. This would be clear from the relevant portion of the circular dated 13.12.1995 extracted below: Review of the existing procedure of promotion to Grade-IV (now designated as Chief Section Supervisor) under the BCR Scheme has been under consideration in view of the judgment of Principal Bench, New Delhi upheld by the Supreme Court. It has now been decided in supersession of earlier instructions that promotion to the said Grade-IV may be given from amongst officials in Grade-III on the basis of their seniority in the basic grade....” 11. In 1994 when original application was filed, there was no cause of action to applicant-respondent and at the best it could have arisen only when circular dated 13.12.1995 was issued. Therefore, claim of applicant-respondent for grant of promotion in Grade-IV could have been considered on 13.12.1995 and not prior to that date. 12. In the circumstances, we modify judgment dated 7.3.2002 passed by Tribunal by directing petitioners to consider claim of applicant-respondent in the light of circular dated 13.12.1995 for promotion to Grade-IV and if selected and promoted, to give all consequential benefits accordingly. 13. Writ petition is partly allowed.