TMI Blog1992 (9) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for consideration. The relief prayed for in the writ petition is as follows: (a) Issue a Writ in the nature of mandamus or any other appropriate writ order or direction directing the respondents to give effect to the TES (Class II) Recruitment Rules 1966, memorandum dated 28.6.1966 and other such memorandum issued thereunder for the period 15.6.1966 to 6.5.1981 along with the TES (Group B) Recruitment Rules 1981 and amendments thereto as promulgated under proviso to Article 309 of the Constitution of India w.e.f. 7.5.1981 onwards; AND (B) Issue a Writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to make promotions based on to the TES (Group B) Service in conformity and in accordance with the eligibility list (Annexure-9) on the basis of (sic) the same year of recruitment separately for each year of recruitment and persons of the same year of recruitment be arranged on the basis of the exam, in that order, AND (c) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction, declaring Para 206 of the P T Manual Volume IV to be redundant and superseded by TES (Class II) Recruitment Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a to even fresh action by adversely affected persons/petitioners. AIR 1989 SC 38. (N) That the order of this Hon'ble Court dated 6.1.1992 dismissing SLP Nos. 19716-22 of 1991 in limine is with all humility and great respect not a precedent but is an order on facts and circumstances of the case and do not lay down any law for purposes of Article 141 of the Constitution of India. Further more its is settled law that a judgment rendered in ignorance of a statute or a rule having a statutory force, which would have affected the result is not binding on a Court, otherwise bound by its own decisions [1962] 2 SCR 558. (O) That the orders of this Hon'ble Court in the two SLPs dated 8.4.1986 and 6.1.1992 are judgments in the facts and circumstances of the case and cannot be cited as precedents, more so since no ratio nor any principles are laid therein, AIR 1975 SC 1087. AIR 1967 SC 1480. It is always open to this Hon'ble Court to reexamine the question already decided by it and to overrule, if necessary, the view taken earlier insofar as all other Courts in India are concerned ought to be bound by the view even in advisory jurisdiction. AIR 1979 SC 478. Furthermore where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion 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. The High Court noticed that para 206 of the P T Manual was in existence when the rules of 1966 and 1981 came into force and held that para 206 was not in conflict with either the rules of 1961 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. 4. The Union of India preferred SLP Nos. 3384-86 of 1986 against the judgment and order of the Allahabad High Court. In the SLP, the following question was stated to be involved: This petition involves important and, substantial question of law as to whether the High Court should have directed that the petitioner be promoted with effect from the day prior to a date of promotion of any person who passed the departmental examination subsequent to them and in that case fix their seniority accordingly and pay them salary and allowances with effect from the said date. In the facts and circumstances of the case and whether 1966 Rules ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT in identical cases. The Forum, (petitioner herein), filed an application for intervention and opposed the grant of relief. The application of the Forum was rejected and relief was granted to the applicants before the CAT following the judgment of the Allahabad High Court, against which the SLP had been dismissed and the Judgment of the other Benches of CAT. It is, thereafter that the present writ petition and the SLP against the order of CAT dated 22.4.1992 and the Transfer Petition have been filed by the Forum. 9. Mr. Gobinda Mukhoty, the learned senior counsel appearing for the caveators, has raised a preliminary objection to the maintainability of the present writ petition. It is argued that the petitioners had been set up only for the purpose of getting a new lease in the litigation after the matters stood concluded in the SLP's filed against the judgment of the Lucknow Bench of the Allahabad High Court as well as against the judgment of the Principal Bench of the Central Administrative Tribunal. Argued the learned Counsel that matters which stand concluded and the issues which stand settled cannot be permitted to be reopened in the manner adopted by the petitioners w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w our attention to a circular issued on 16.3.1992 by the Forum. The correctness or the existence of the circular was not disputed by Mr. Desai on a specific query put to him by the Bench. According to the circular, the Forum was set-up to take legal action to prevent the implementation by the department of para 206 of P T Manual, Vol. IV; to ensure that settled seniority position of TES (Group B) Officers is not unsettled and that no regular AE is demoted. The life of the Forum, according to the circular, is co-extensive with the time it may take to resolve the issues relating to seniority. It has been stated in the circular that SLP's filed by JTOA (India) and the department in the Supreme Court against recasting of seniority was rejected on 6.1.1992. It is also stated that after the dismissal of the SLP the department filed statement in various Benches of Central Administrative Tribunal stating that they require 6/9 months time for recasting the seniority of TES (Group B) Officers and for preparation of the eligibility list of qualified JTO's as per para 206 of P T Manual. Vol. IV i.e. as per the year of passing the examination. The circular then goes on to say: A. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Forum, as would appear from the circular, has come into being for the limited purposes stated therein. While it is correct that the Forum and the petitioners, excepting a few, were not parties in their individual capacity in the earlier litigation before the CAT or this Court since obviously the Forum was not even in existence at that time, but their cause was being espoused by their association JTOA (India) which had appeared before the CAT as well as filed an SLP in this Court against the order of CAT dated 7.6.1991. JTOA (India) had in the SLP projected the same view point and highlighted the same views as are being projected now in the writ petition. The correctness of the Allahabad High Court judgment and CAT was unsuccessfully assailed in the previous litigation. The SLP filed by JTOA (India) through Mr. N.S Das Bahal Advocate and the Union of India was dismissed by this Court on 6.1.1992 and the following order was made: 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 2739 and 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and its vehement opposition to the applications. The Tribunal, after a detailed discussion observed that it was not impressed by the contention raised on behalf of the Forum that all aspects of the matter had not been brought to the notice of the Allahabad High Court, or the Tribunal or the Supreme Court in the earlier round of litigation. The plea that the dismissal of the SLPs in 1986 and 1991 had not given finality to the controversy was rejected. The Tribunal also considered the submission made on behalf of the Forum that giving promotions and fixation of seniority on the basis of the year of passing the qualifying the departmental examination and not on the basis of the year of recruitment may, at this stage, entail large scale reversions giving rise to wide-spread discontentment and with a view to mitigate the hardship and to do substantial justice between the parties, in paragraph 17 of its order dated 22.4.1992, the CAT observed: In case the redrawing of the seniority list results in reversion of officers who had been duly promoted already, we are of the opinion that, in all fairness, their interests should be safeguarded at least to the extent of protecting the pay act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders of the High Court and the Supreme Court in favour of respondents 4 and 5. The order of Government only implements the orders of the courts that had become final and binding on them. 21. While not disputing that in the intervention application filed by the Forum before CAT, similar pleas had been raised. Mr. Desai, submitted that since the application filed by the petitioners for intervention was dismissed by CAT, it could not be said that the petitioners had been heard in the matter or that the CAT had rendered any judgment on merits after hearing them with regard to the pleas raised by them in the application. We are unable to agree. The order of CAT reveals that it had considered various pleas raised by the Forum and had rejected the same. The petitioners cannot, therefore, say that they had not been heard by the CAT in respect of the issues now projected in the writ petition. The. Forum even after the filing of the and during the pendency of this writ petition, the special leave petition against the order of the Tribunal dated 22.4.1992 and the transfer application in this Court, has filed Original Application No. 1707 of 1992 before the CAT. A copy of that application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts which followed including coming into effect of 1966 Rules and various memorandum pursuant thereto, the 1981 rules and amendments thereto as also complete breakdown of Rule insofar as mandatory provision of holding Departmental Qualifying Exam every calendar year in accordance with Appendix I Rule 3 of 1966 Rules and Appendix 1 Rule of the 1981 Rules was not followed and no exam was held from the year 1981 to 1984. All JTOs recruited in the year 1973, 1974, 1975, 1976, 1977, 1978, 1979, in one lot were put in for appearance in the exam held in 1985 for the first time, and consequently suffered extreme prejudice. It was also contended that the department was grossly negligent in conducting the cases and it was on their default that things had come to such a pass. Furthermore, it was contended that para 206 was not properly interpreted by various Tribunals and when read with Paras 32E(b)(ii) and 181 to 204 it became apparent that 1966 and 1981 Rules and the memorandum issued thereunder, the rule of seniority gaining priority over year of passing the exam held good. It was also argued that the judgments of the Hon'ble Supreme Court dismissing SLPs of Union of India in SLP Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments as in the facts and circumstances of this case, and for 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 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. 19716-22/91 against the judgment of Principal Bench of CAT dated 7.6.1991 unsuccessfully. Those judgments have settle 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 Mukhanlal Waza and Ors. v. State of Jammu and Kashmir and Ors. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
