Bharat Sanchar Nigam Ltd vs Ghanshyam Dass & Ors

Bharat Sanchar Nigam Limited ... Appellant

Versus

Ghanshyam Dass & Ors. ... Respondents

WITH

CIVIL APPEAL NO.4370 of 2006

Bharat Sanchar Nigam Limited ... Appellant

Versus

Chhidu Singh & Ors. ... Respondents

J U D G M E N T

A. K. PATNAIK, J.

These two appeals are against two separate but

identical orders passed by a Division Bench of the High

Court of Delhi on 22.05.2003 in C.W. No.4555 of 2002 and

C.W. No.4556 of 2002.

2 2. The facts very briefly are that in the Department of

Telecommunications of the Government of India there are

four Grades of employees and these are:

3 Basic Grade [Telegraph Assistant / Telegraphist] = Pay

Scale Rs.975-1660.

Grade II [Section Supervisor / Telegraph Master] = Pay

Scale Rs.1400-2300.

Grade III [Senior Section Supervisor] = Pay Scale

Rs.1600-2660.

Grade IV [Chief Section Supervisor] = Pay Scale Rs.2000-

3200.

2. Initially, promotions from one Grade to the higher

grade were made on the basis of seniority to the 2/3rd

of the posts and on the basis of departmental

examination to the 1/3rd of the posts. With effect from

30.11.1983, the Government of India, Ministry of

Communications, Department of Telecommunications

(for short `the Government') introduced One Time

Bound Promotion Scheme under which regular

employees, who had completed sixteen years of service

in a grade, were placed in the next higher grade.

Thereafter, by a circular dated 16.10.1990 the

Government introduced a new Scheme known as

`Biennial Cadre Review' (for short `the BCR Scheme').

Under the BCR Scheme, those employees, who were on

regular service as on 01.01.1990 and had completed

4

26 years of satisfactory service in the basic grades,

were to be screened by a duly constituted Committee

to assess their performance and determine their

suitability for advancement and if they were found

suitable they were to be upgraded in the higher scale.

The circular dated 16.10.1990, however, limited such

upgradation to 10% of the posts in the lower pay-scale

and the review of the cadres for the purpose of such

upgradation was to take place once in two years. The

Government then issued clarifications on some points

in its letter dated 11.03.1991 on the BCR Scheme.

Point No.10 and the clarification thereon in the letter

dated 11.03.1991 are quoted hereunder:-

"Point raised by the field unit Clarification

"10. Whether Officers The seniority of officials is

already having pay scale of to be maintained with

Rs.1600-2600 will rank reference to the basic

senior to Officials in the cadres and functional

scale of Rs.1400-2300 for promotional posts they

the 10% quota (Rs.2000- hold and not merely with

3200) reference to the pay

scales."

4. Some officers of Grade III who were senior in the basic

grade but had lost their seniority in Grade III because of

5

their later promotions and who were not considered for

upgradation to Grade IV under the BCR Scheme, namely,

Smt. Santosh Kapoor and others, filed O.A. No.1455 of 1991

before the Central Administrative Tribunal, New Delhi,

contending on the basis of clarification on Point No.10 made

in the letter dated 11.0.3.1991 that under the BCR Scheme,

seniority in the basic grade was to be counted for the

purpose of upgradation on completion of 26 years of service

and this contention was resisted by the Government and

other respondents in the O.A. and the Tribunal in its order

dated 07.07.1992 directed that promotions of 10% posts in

the scale of Rs.2000-3200 (Grade IV) would have to be

based on seniority in the basic grade subject to fulfillment of

other conditions in the BCR Scheme and further directed

the Government to consider the applicants in the O.A. from

due dates with consequential benefits. In the order dated

07.07.1992, the Tribunal, however, observed that employees

who may be senior to the applicants in the O.A. in the 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 who were senior in the basic grades by any different

6

interpretation of the BCR Scheme, may in the discretion of

the Government instead of being reverted, be considered for

promotion to scale of Rs.2000-3200 (Grade IV) by suitable

adjustments in the number of posts by upgradation as

necessary. The Government challenged the order dated

07.07.1992 of the Tribunal in Civil Appeal No.3201 of 1993

but by order dated 09.09.1993 this Court held that the

direction by the Tribunal cannot be faulted and accordingly

dismissed the appeal.

5. Pursuant to the order dated 07.07.1992 of the

Tribunal in O.A. No.1455 of 1991 as affirmed by this Court

in Civil Appeal No.3201 of 1993, supernumerary posts were

created in the scale of Rs.2000-3200 (Grade IV) to adjust

the employees who had already been given the scale of

Rs.2000-3200 on the basis of their seniority in the scale of

Rs.1600-2660 (Grade III). Moreover, after a review of the

procedure for promotions from Grade III to Grade IV, the

Government issued a fresh circular dated 13.12.1995

saying that promotion to Grade-IV may be given from

amongst officials in Grade-III on the basis of their seniority

in the basic grade, subject to fitness determined by the DPC

7

and subject to the ceiling of 10% of the posts in Grade-III

(scale Rs.1600-2660) as provided in the BCR Scheme.

6. The respondents in C.A. No.4369 of 2006 Shri

Ghanshyam Dass and others filed O.A. No.2484 of 1997

and the respondents in C.A. No.4370 of 2006 Shri Chiddu

Singh and others filed O.A. No.2099 of 1997 before the

Central Administrative Tribunal contending that employees

who were juniors to them in the basic grade but otherwise

senior in Grade-III, had been given promotion to Grade-IV

earlier to the dates when the respondents were given such

promotion and by a common order dated 11.08.2000 the

Tribunal allowed the O.As. and directed the Government to

consider promoting them to Grade IV with effect from the

dates their immediate juniors in the basic grade seniority

were so promoted subject to their otherwise being found fit

for promotion on such dates with consequential benefits

including seniority and arrears of pay and allowances and

retiral benefits in the case of those who had retired on

superannuation. The Government filed writ petitions C.W.

No.4555 of 2000 and C.W. No.4556 of 2000 in the High

Court of Delhi, but by the two separate impugned orders the

8

High Court found that the Tribunal, while allowing the

applications, had directed the Government to follow its own

circular dated 13.12.1995 which had been issued pursuant

to the order of the Tribunal dated 07.07.1992 in O.A.

No.1455 of 1991 which had attained finality after dismissal

of the appeals by this Court and accordingly dismissed the

two writ petitions.

7. When these two Civil Appeals were heard by a two

Judge Bench of this Court on 14.03.2007, they were of the

view that the matter should be referred to a larger Bench for

the reasons stated in the order dated 14.03.2007, which are

quoted hereinunder:

"........ The question is that on what basis the

promotion is to be given. In normal course of

business a person in Grade-I is to be promoted

on the basis of seniority from Grade I to Grade II

and likewise from Grade II to Grade III and from

Grade III to Grade IV. But because of a

clarification issued by the Department dated

3.4.1991, the basic Grade seniority should be

taken into consideration for promotion and not

the pay-scales. If this is to be taken, then this

will mean that a person who is in Grade I and

has put in 26 years of service on 1.1.1990 will be

entitled for promotion from Grade I to Grade IV.

Therefore, the concept of basic cadre has to be

interpreted with reference to the seniority in each

Grade. But on account of the order passed by

the CAT which has been affirmed by this Court

on 9.9.1993 in Civil Appeal No.3201 of 1993 this

9

anomalous situation has been created.

Therefore, in our view, it is appropriate if this

matter is referred to a larger Bench so that the

controversy involved in the matter can be

resolved. ....."

Thus, the learned Judges were of the view that on account

of the order passed by Central Administrative Tribunal in

O.A. No. 1455 of 1991 which had been affirmed by this

Court on 09.09.1993 in C.A. No. No.3201 of 1993 an

anomalous situation has been created inasmuch as a

person who is in Grade I and had put in 26 years of service

would be entitled for promotion from Grade I to Grade IV.

They were of the view that the concept of basic cadre has to

be interpreted with reference to the seniority in each grade.

8. In the course of hearing before us, however, it has

been brought to our notice by learned counsel for the

parties that the controversy before us is confined to

promotions of only employees from Grade-III to Grade-IV

and not of employees working in either Grade-I or Grade-II.

This will be clear from the order dated 07.07.1992 of the

Central Administrative Tribunal in O.A. No.1455 of 1991

[Smt. Santosh Kapoor and others v. Union of India and

others] in which the Tribunal has directed that promotions

10

to 10% posts in Grade-IV (Pay Scale 2000-3200) would have

to be based on seniority in basic cadres subject to

fulfillment of other conditions in the BCR Scheme and it is

this order of the Tribunal which was affirmed by this Court

in the order dated 09.09.1993 in Civil Appeal No.3201 of

1993. This will also be clear from the fresh circular dated

13.12.1995 which was confined to promotions from Grade

III to Grade IV under the BCR Scheme. Hence, the question

of an employee of the basic Grade (Grade-I) being promoted

to Grade-IV directly does not arise in the appeals before us.

9. Coming now to the merits of the two appeals before us,

Mr. R.D. Agrawala, learned counsel for the appellants,

submitted that the Central Administrative Tribunal allowed

the claims of the respondents on the ground that in the

basic grade they were senior to some employees who had

already been promoted to Grade-IV and this was clearly

contrary to the fresh circular dated 13.12.1995 of the

Government according to which promotions to Grade-IV

may be given from amongst officials in Grade-III on the

basis of their seniority in the basic grade. He submitted that

the Tribunal in its common order in the two O.As. has given

11

the illustrative example of Lakhpat Rai Gumbar who was at

serial No.73 of the seniority list in the basic cadre while the

respondents Ghanshyam Dass and Shyamlal Sachdeva,

who were applicants in O.A. No. 2484 of 1997, were placed

above him in the seniority list of the basic cadre at serial

Nos.69 and 70 and yet Lakhpat Rai Gumbar had been

promoted to Grade-IV by order dated 08.01.1993 while the

said two Ghanshayam Dass and Shyamlal Sachdeva had

been promoted to Grade-IV with effect from 01.01.1997 and

01.07.1997 respectively. Mr. Agrawala submitted that the

Tribunal failed to appreciate that Lakhpat Rai Gumbar had

been promoted from Grade-III to Grade-IV with effect from

08.01.1993 pursuant to the order dated 07.07.1992 of the

Central Administrative Tribunal in O.A. No.1455 of 1991 in

which the Tribunal had allowed the Government to create

supernumerary posts for promotion to Grade-IV for those

employees who were senior to the applicants in the O.A. in

the scale of Rs.1600-2600 (Grade III) and who had been

given the scale of Rs.2000-3200 (Grade IV) at the cost of

those who were senior in the basic grades by a different

interpretation of the BCR Scheme. He further submitted

12

that the Tribunal also failed to appreciate that the fresh

circular dated 13.12.1995 of the Government could have

only prospective effect and could govern only promotions

made after 13.12.1995 and in fact Ghanshyam Dass and

Shyamlal Sachdeva, the two applicants in O.A. No. 2484 of

1997, and many other employees had been promoted from

Grade-III to Grade-IV on the basis of seniority in the basic

cadre after the fresh circular dated 13.12.1995. He

submitted that the High Court has lost sight of all these

aspects and has affirmed the order of the Tribunal in the

two O.As. erroneously.

10. Mr. Sudarshan Rajan, learned counsel appearing for

the respondents, in reply, submitted that the consolidated

list of promotions under the BCR Scheme (Annexure P/1 in

C.A.No.4370 of 2006) would show that Ghanshyam Dass

was at serial No.69 and Shyamlal Sachdeva was at serial

No.70, whereas Lakhpat Rai Gumbar was at serial No.73 in

the seniority list of the basic grade. He submitted that since

the Central Administrative Tribunal in its order dated

07.07.1992 in O.A. No.1455 of 1991 has held that

promotions to 10% posts in Grade-IV would have to be

13

based on seniority in the basic Cadre, Ghanshyam Dass

and Shyamlal Sachdeva ought to have been promoted before

Lakhpat Rai Gumbar but the chart at page 34A in C.A.

No.4370 of 2006 would show that Lakhpat Rai Gumbar was

promoted on 08.01.1993 whereas Ghanshyam Dass and

Shyamlal Sachdeva were promoted much later on

01.01.1997 and 01.07.1997 respectively. He vehemently

submitted that Ghanshyam Dass and Shyamlal Sachdeva

and all other respondents have to be given the benefit of the

order dated 07.07.1992 of the Tribunal in O.A. No.1455 of

1991 as affirmed by this Court, even though they were not

parties in the aforesaid O.A. before the Tribunal or before

this Court. He cited the decision in K.I. Shephard and

others v. Union of India and others [(1987) 4 SCC 431] in

which this Court held that employees who had not come to

the Court should not be penalized for not having litigated

and would be entitled to the same benefits as the petitioners

in that case. Mr. Rajan further submitted that the Central

Administrative Tribunal in its order dated 07.07.1992 in

O.A. No.1455 of 1991 had only observed that employees

who may be senior to the applicants in the O.A. in the scale

14

Rs.1600-2600 and which may have been given the scale of

Rs.2000-3200 at the cost of those senior in the basic grades

may be `considered for promotion' and the Tribunal had not

given any direction to promote all such employees such as

Lakhpat Rai Gumbar. He submitted that the clarification

on Point No.6 in the letter dated 11.03.1991 of the

Government on the BCR Scheme was that the selection for

promotion from Grade-III to Grade-IV was to be based on

merit and not simply fitness and, therefore, Lakhpat Rai

Gumbar and others could not have been promoted to

supernumerary posts without a proper selection on merit

pursuant to the order dated 07.07.1992 of the Tribunal in

O.A. No.1455 of 1991.

11. We have considered the submissions of learned

counsel for the parties. The order dated 07.07.1992 of the

Central Administrative Tribunal in O.A. No.1455 of 1991

(Smt. Santosh Kapoor and Others v. Union of India & Ors.),

contained the following directions:

"In the above view of the matter, we direct that

the promotions to 10% posts in scale 2000-

3200 would have to be based on seniority in

basic cadres subject to fulfillment of other

conditions in the BCR Scheme viz. those who

were regular employees as on 1.1.1990 and had

15

completed 26 years of service in basic grades

(including higher scales). The respondents are

directed to consider applicants accordingly from

due dates with consequential benefits. The

employees who may be senior to applicants in

the scale of Rs.1600-2660 and who may have

already been given the scale of Rs.2000-3200 at

the cost of those senior in basic grades by any

different interpretation of the BCR Scheme, may

in the discretion of the respondents, instead of

being reverted, be considered for promotion to

scale of Rs.2000-3500 by suitable adjustments

in the matter of posts by upgradation as

necessary."

It will be clear from the directions in the aforesaid order

dated 07.07.1992 in O.A. No.1455 of 1991 that the

Government was directed to consider only the applicants in

the O.A. for promotion to 10% posts in the scale Rs.2000-

3200 (Grade-IV) on the basis of seniority in the basic cadres

from the due dates with consequential benefits. The

respondents in the two Civil Appeals before us were not the

applicants in O.A. No.1455 of 1991 and there was no

direction to the Government to consider the respondents in

the two appeals for promotion to Grade-IV scale on the

basis of seniority in the basic cadre as per the BCR Scheme.

Hence, the respondents were not entitled to claim any

promotion to Grade-IV on the basis of their seniority in the

basic grade on the basis of the order dated 07.07.1992 of

16

the Tribunal in O.A. No.1455 of 1991 as affirmed by the

order dated 09.09.1993 of this Court in Civil Appeal

No.3201 of 1993.

12. In K.I. Shephard (supra) relied upon by the learned

counsel for the respondents, this Court directed that

each of the transferee banks should take over the

employees who had been excluded from employment

under the amalgamation schemes of the banks on the

same terms and conditions of employment under the

respective banking companies prior to amalgamation

and further directed that such employees, who were

taken over, would be entitled to the benefit of

continuity of service for all purposes including salary

and perks. This Court further found that some of the

excluded employees had not come to Court and held

that there was no justification to penalize them for not

having litigated and that they too shall be entitled to

the same benefits as the petitioners in that case.

There was, therefore, a clear direction in the judgment

of this Court in K.I. Shephard (supra) that the excluded

employees, who had not approached the Court, shall

17

also be entitled to the same benefits as the petitioners

in that case were entitled under the judgment of this

Court. In the present case, as we have seen, the

Central Administrative Tribunal has not directed in its

order dated 07.07.1992 in O.A. No.1455 of 1991 that

the benefits of the order would also be extended to

those who had not approached the Tribunal.

13. 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

18

d) where the court expressly directs that the relief

granted should be extended to those who have not

approached the court.

14. 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. In Jagdish Lal and others v. State of Haryana and

others [(1997) 6 SCC 538], the appellants who were general

candidates belatedly challenged the promotion of Scheduled

Caste and Scheduled Tribe candidates on the basis of the

decisions in Ajit Singh Januja v. State of Punjab [(1996) 2

SCC 715], Union of India v. Virpal Singh Chauhan [(1995) 6

SCC 684] and R.K. Sabharwal v. State of Punjab [(1995) 2

SCC 745] and this Court refused to grant the relief saying:

"....this Court has repeatedly held, the delay

disentitles the party to the discretionary relief

under Article 226 or Article 32 of the

Constitution. It is not necessary to reiterate all

the catena of precedents in this behalf. Suffice it

to state that the appellants kept sleeping over

their rights for long and elected to wake up when

they had the impetus from Virpal Chauhan and

Ajit Singh ratios. But Virpal Chauhan and

Sabharwal cases, kept at rest the promotion

already made by that date, and declared them as

19

valid; they were limited to the question of future

promotions given by applying the rule of

reservation to all the persons prior to the date of

judgment in Sabharwal case which required to be

examined in the light of the law laid in

Sabharwal case. Thus earlier promotions cannot

be reopened. Only those cases arising after that

date would be examined in the light of the law

laid down in Sabharwal case and Virpal Chauhan

case and equally Ajit Singh case. If the candidate

has already been further promoted to the higher

echelons of service, his seniority is not open to be

reviewed. In A.B.S. Karamchari Sangh case a

Bench of two Judges to which two of us, K.

Ramaswamy and G.B. Pattanaik, JJ. were

members, had reiterated the above view and it

was also held that all the prior promotions are

not open to judicial review. In Chander Pal v.

State of Haryana a Bench of two Judges

consisting of S.C. Agrawal and G.T. Nanavati, JJ.

considered the effect of Virpal Chauhan, Ajit

Singh, Sabharwal and A.B.S. Karamchari Sangh

cases and held that the seniority of those

respondents who had already retired or had been

promoted to higher posts could not be disturbed.

The seniority of the petitioner therein and the

respondents who were holding the post in the

same level or in the same cadre would be

adjusted keeping in view the ratio in Virpal

Chauhan and Ajit Singh; but promotion, if any,

had been given to any of them during the

pendency of this writ petition was directed not to

be disturbed...."

Since the respondents preferred to sleep over their rights

and approached the Central Administrative Tribunal only in

1997, they cannot get the benefit of the order dated

07.07.1992 of the Tribunal in O.A. No.1455 of 1991 and will

20

only be entitled to the benefit of the circular dated

13.12.1995 which was in force in 1997.

15. We also find on a reading of paragraph 8 of the order

dated 07.07.1992 of the Central Administrative Tribunal in

O.A. No.1455 of 1991 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. 08.01.1993 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

21

promotions done on a different interpretation of the BCR

Scheme by the Government as allowed by the Tribunal in

the order dated 07.07.1992 in O.A. No.1455 of 1991 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.

16. We further find on a reading of the circular dated

13.12.1995 of the Government that after the order dated

07.07.1992 of the Tribunal in OA. No.1455 of 1991 was

affirmed by this Court in Civil Appeal No.3201 of 1993 on

09.09.1993 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

22

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. ......"

17. The language of the circular dated 13.12.1995 makes

it crystal clear that the Government took a fresh decision 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. Hence, the

decision of the Government to make promotions to Grade-IV

on the basis of their seniority in the basic grade could take

effect only from 13.12.1995 and not from a prior date and

the respondents, who had filed O.A. No.2484 of 1997 and

O.A. No.2099 of 1997 in the Central Administrative Tribunal

could not claim any promotion to Grade-IV on the basis of

their seniority in the basic cadre with effect from any date

prior to 13.12.1995. The Central Administrative Tribunal

was, therefore, not right in allowing O.A. No.2484 of 1997

and O.A. No.2099 of 1997 by order dated 11.08.2000,

directing the Government to consider promoting the

23

applicants to Grade-IV with effect from the dates their

immediate juniors in the basic grade seniority were so

promoted subject to their being found fit with consequential

benefits of seniority as well as arrears of pay and allowance

and of retiral benefits in the case of those of the applicants

in the O.As. who had retired on superannuation. In our

considered opinion, the High Court ought to have interfered

with the decision of the Tribunal.

18. We accordingly allow these appeals and set aside the

impugned orders dated 22.05.2003 of the High Court and

the common order dated 11.08.2000 of the Central

Administrative Tribunal in O.A. No. 2484 of 1997 and O.A.

No.2099 of 1997. The two O.As. stand rejected. There will

be no order as to costs.

.............................J.

(R. V. Raveendran)

.............................J.

(P. Sathasivam)

.............................J.

(A. K. Patnaik)

New Delhi,

February 17, 2011.