V. Senthur and Another vs M. Vijayakumar, IAS, Secretary, Tamil Nadu Public Service Commission and Another

against the alleged contemnors­respondents for willfully

disobeying the order passed by this Court dated 22 nd January

2016 in SLP(C) Nos. 2890­2894 of 2016 and SLP(C) No. 2886 of

2016.

2

2. Brief facts giving rise to the filing of the present petitions

are as under:­

The contempt petitioners had filed writ petitions before the

Single Judge of the Madras High Court being aggrieved by the

fixation of inter se seniority list published on 29 th April 2004.

The petitioners along with the contesting respondents were

selected in pursuance of the selection process held on the basis

of the notification dated 10th September 1999, issued by the

Tamil Nadu Public Service Commission (hereinafter referred to

as “TNPSC”). Upon selection, the selectees were appointed in

the Public Works Department of the State of Tamil Nadu and

the Highways Department in the year 2000.

3. After a period of 4 years from the date of joining of the

selectees, the seniority list came to be notified on 29 th April

2004. One R. Balakrishnan made a representation contending

therein that though he was a more meritorious candidate

belonging to the Backward Class category, he was allotted to

the General Turn (open category) and kept at Serial No. 172 of

3 the roster point. It was however his contention that the other

persons belonging to the Backward Classes, who were less

meritorious, were placed higher in the list and given seniority

over and above him since they were placed against reserved

vacancies. The representation of R. Balakrishnan was rejected

by TNPSC vide order dated 20 th December 2004, on the ground

that the roster point itself determined the seniority, in view of

the decision of this Court in the case of P.S. Ghalaut v. State

of Haryana and Others1. Being aggrieved by the said order

dated 20th December 2004, R. Balakrishnan and few others

filed various writ petitions before the Madras High Court. The

said writ petitions came to be dismissed vide judgment and

order dated 18th October 2012, passed by the Single Judge of

the Madras High Court, on the ground of delay and laches.

4. Being aggrieved thereby, the original writ petitioners

preferred appeals before the Division Bench of the Madras High

Court. The Division Bench vide judgment and order dated 31 st

March 2015 (hereinafter referred to as “the first judgment”), 1(1995) 5 SCC 625

4 allowed the appeals and set aside the judgment and order dated

18th October 2012, passed by the Single Judge and directed the

official respondents to take the rank assigned by TNPSC to the

selectees, as the basis for fixation of seniority. The Division

Bench also directed TNPSC to issue appropriate orders within a

period of 4 weeks from the date of receipt of a copy of the said

order. The same came to be challenged before this Court by

TNPSC vide SLP(C) Nos. 2890­2894 of 2016. This Court vide its

judgment and order dated 22 nd January 2016, by a speaking

order, dismissed the same. The present contempt petitions are

filed contending non­compliance of the order passed by this

Court dated 22nd January 2016.

5. Certain developments which took place in the meanwhile

also need to be noted. To overcome the first judgment of the

Madras High Court as affirmed by this Court, the State of Tamil

Nadu enacted Tamil Nadu Government Servants (Conditions of

Service) Act, 2016 (hereinafter referred to as “the said Act”).

Section 40 of the said Act provided that the seniority of a

5 person in service will be determined in accordance with the rule

of reservation and the order of rotation. The same came to be

challenged in a batch of writ petitions before the Madras High

Court. The Division Bench of the Madras High Court vide

judgment and order dated 15th November 2019 (hereinafter

referred to as “the second judgment”), allowed the said writ

petitions. It declared Sections 1(2), 40 and 70 of the said Act as

ultra vires and unconstitutional. It further directed to redo the

exercise of fixation of seniority within a period of 12 weeks from

the date of receipt of the copy of said order. The said order of

the High Court dated 15th November 2019, was challenged

before this Court by filing SLP(C) Nos. 2861­2876 of 2020. This

Court passed the following order on 6th July 2020:­

“Permission to file Special Leave Petition(s) is granted.

Application for impleadment is allowed to the extent of intervention.

There is absolutely no merit in these petitions. The Special Leave Petitions are, accordingly, dismissed. Pending application(s) is/are disposed of.”

6

6. After dismissal of the said SLPs, the official respondents

had filed review petitions before the Division Bench of the High

Court. So also, certain contempt petitions were filed by the

selectees, who were aggrieved by non­revision of the seniority

list. The Division Bench of the Madras High Court vide

judgment and order dated 26th March 2021 dismissed the

review petitions, so also, the contempt petitions. The same is

challenged before this Court by the selectees, who were

aggrieved by non­revision of the seniority list, by filing SLP(C)

Nos. 12114­12117 of 2021.

7. The contempt petitions have been listed before this Court

on various dates. Vide order dated 11 th February 2021, this

Court passed the following order:­

“In the meanwhile, the judgment dated 22.01.2016 shall be implemented. In case the judgment is not implemented by that date, the following alleged contemnors/respondents shall be present in this court on the next date of hearing:

C.P.(C)No.638 of 2017 in C.A.No.4954 of 2016

1) M. Vijayakumar

7

2) S. Thinakaran

Dy No.16048 of 2020 in SLP(C) Nos.2890­2894 of 2016:

1) Dr. S. Swarna

2) K. Ramamoorthy

3) K. Nanthakumar

C.P.(C) No.1247 of 2019 in SLP (C) No.2886 of 2016:

1) K. Shanmugam

2) K. Nanthakumar

3) Dr. K.Manivasan

4) K. Ramamurthy

C.P.(C)No.1848 of 2018 and C.P.(C)No.2188 of 2018 in SLP (C)No.2886 of 2016:

1) K. Nanthakumar

2) S. K. Prabhakar

3) S. Bakthavathchalam”

8. The contempt petitions have also been listed thereafter on

various dates. Today, we have heard Shri Prashant Bhushan,

learned counsel appearing on behalf of the petitioners, Shri

8 C.S. Vaidyanathan, learned Senior Counsel appearing on behalf

of TNPSC, Shri Mukul Rohatgi, Shri V. Giri and Shri P. Wilson,

learned Senior Counsel appearing on behalf of the respondents­

alleged contemnors, at length.

9. Shri Prashant Bhushan submitted that the first judgment

has been merged into the order passed by this Court dated 22 nd

January 2016. He submitted that in the said order, this Court

has categorically held that in view of the judgment in the case

of Bimlesh Tanwar v. State of Haryana and Others 2, the

seniority list has to be prepared on the basis of merit list of

selection and that the list drawn on roster point would not be

valid in law. He submitted that the respondent authorities

have not implemented the said order, on the contrary, a revised

seniority list is published on 13th March 2021, contending that

the said seniority list has been published on the basis of the

orders passed by this Court. He submitted that a perusal of the

said seniority list would further show that the said list is

prepared totally in breach of the judgment in the case of

2(2003) 5 SCC 604

9 Bimlesh Tanwar (supra). It is thus submitted that by

publishing the said list, the respondent authorities have not

only committed the aggravated contempt of court but have also

committed perjury.

10. Shri C.S. Vaidyanathan, Shri Mukul Rohatgi, Shri V. Giri

and Shri P. Wilson, learned Senior Counsel appearing on behalf

of the respondents, on the contrary, submitted that the

contempt petitions are without any merit.

11. In a nutshell, the contentions as raised on behalf of the

said respondents are thus:­

(i) In the first judgment, the Division Bench of the Madras

High Court had granted relief to the individual

petitioners. Understanding the same, the respondent

authorities had issued a fresh seniority list, thereby

granting the requisite seniority to the individual

petitioners.

(ii) Perusal of the second judgment of the Madras High

Court dated 15th November 2019, would further fortify

10 that the relief granted in earlier round was restricted to

individual petitioners. Relying on certain observations

in the said judgment, it is submitted that the Division

Bench has clearly held that the delay, laches,

acquiescence and accrued right would be the relevant

factors and as such, the individuals who were not

petitioners in the first round, are not entitled to get the

seniority as per the first judgment of the Madras High

Court.

(iii) That the rights of the parties have been crystallized for

more than almost two decades and upsetting those at

this stage, would cause great heart­burn amongst the

employees in the cadre.

(iv) That some of the employees have accepted the seniority

list and now the entire exercise cannot be redone to

thrust the revised seniority on such employees.

(v) That in any case, the judgment of the Division Bench of

the Madras High Court was capable of being interpreted

11 as applying only to the individuals and therefore, even if

the official respondents have incorrectly understood the

judgment, the non­compliance of the directions cannot

be considered to be willful or deliberate and as such,

the action for contempt would not lie.

12. In addition, Shri Rohatgi submitted that the contempt, if

any, is of the order passed by the High Court. He submitted

that since by the order dated 22 nd January 2016, this Court has

dismissed the SLPs albeit giving certain reasons, the same

would not amount to merger, and as such, it cannot be held

that the respondents have committed contempt of this Court.

He further submitted that if tomorrow, merely upon dismissal

of SLPs against the judgments of the High Court, the contempt

petitions are entertained contending contempt of this Court, it

will open a floodgate of contempt petitions. He submitted that

such a practice would not be conducive to the interest of

justice.

12

13. Shri Vaidyanathan relied on the following judgments of

this Court in support of his submissions that, in contempt

proceedings, the Court cannot travel beyond the original

judgment and order.

Jhareswar Prasad Paul and Another v. Tarak Nath

Ganguly and Others3, Midnapore Peoples’ Coop. Bank

Limited and Others v. Chunilal Nanda and Others 4, V.M.

Manohar Prasad v. N. Ratnam Raju and Another5 and

Sudhir Vasudeva, Chairman and Managing Director, Oil

and Natural Gas Corporation Limited and Others v. M.

George Ravishekaran and Others6.

14. There can be no quarrel with the proposition that in a

contempt jurisdiction, the court will not travel beyond the

original judgment and direction; neither would it be permissible

for the court to issue any supplementary or incidental

directions, which are not to be found in the original judgment

3 (2002) 5 SCC 352 4 (2006) 5 SCC 399 5 (2004) 13 SCC 610 6 (2014) 3 SCC 373

13 and order. The court is only concerned with the wilful or

deliberate non­compliance of the directions issued in the

original judgment and order.

15. At the outset, we may clarify that in the present

proceedings, we are only concerned with the contempt of the

order passed by this Court dated 22nd January 2016.

16. Insofar as the contention of the respondents that the issue

before the High Court in the first round was individualistic in

nature is concerned, it will be relevant to refer to the following

observations passed by the Division Bench of the Madras High

Court in the first judgment:­

“37. …..

(ii) The cases on hand are not individualistic in nature, depending upon individual dates, facts and sequence of events. The cases on hand arise out of a most fundamental question as to the principle of law to be applied in the matter of fixation of seniority. The grievance of the writ petitioners was not individualistic, depending for their adjudication, upon distinct facts. These cases question the very foundation on which seniority was sought to be determined on principle. To such cases, the enabling provision under Rule 35(f) entitling the department to summarily reject the claim of the individuals, cannot be invoked.”

14

17. It can thus be seen that the High Court has clearly

observed that the case before the High Court was not

individualistic in nature, depending upon individual dates,

facts and sequence of events. It has further observed that it

arose out of the most fundamental question as to the principle

of law to be applied in the matter of fixation of seniority.

18. Having observed this, in the operative part, the Division

Bench of the Madras High Court in the first judgment held

thus:­

“85. In view of the above, the writ appeals are allowed, the order of the learned judge is set aside and the writ petitions filed by the appellants are allowed. There will be a direction to the official respondents to take the rank assigned by the Service Commission to the selectees, as the basis for fixation of seniority and issue appropriate orders within a period of 4 weeks from the date of receipt of a copy of this order. There will be no order as to costs.”

19. It could thus clearly be seen that the Division Bench of the

Madras High Court in the first judgment issued a direction to

15 the official respondents to take the rank assigned by TNPSC to

the selectees as the basis for fixation of seniority and

appropriate orders were directed to be issued by TNPSC within

a period of 4 weeks from the receipt of the copy of the said

order.

20. The basis for allowing the writ petitions by the High Court

was the judgment of this Court in the case of Bimlesh Tanwar

(supra), which held that the seniority has to be determined, not

on the basis of roster point but on the basis of the seniority

assigned at the time of selection of the selectees. This Court,

while dismissing the SLPs vide order dated 22 nd January 2016,

observed thus:­

“The fundamental principle which has been applied by the Division Bench in the cases on hand relates to the question as to what should be the basis for drawing a seniority list. In that context, the Division Bench has noted that at the time when the Service Commission drew the list in 2000 the same was in tune with the judgment of this Court in P.S. Ghalaut v. State of Haryana & Others, reported in (1995) 5 SCC 625. The Court also found that the said list which was approved by the State Government did not achieve the finality and that ultimately when the seniority list came to be issued

16 on 29.2.2004, by which time the judgment of this Court in Bimlesh Tanwar v. State of Haryana and others, reported in (2003) 5 SCC 604 had came into effect which reversed the judgment in Ghalaut (supra). The Division Bench, therefore, held that there was no delay in the challenge made to the seniority list. After the emergence of the judgment in Bimlesh Tanwar (supra), the fundamental principle relating to drawl of seniority list was that it should be based on merit list of selection and that the list drawn based on roster point can have no application for the purpose of seniority list.

As the said fundamental principle was applied by the High Court in passing the impugned judgment, we do not find any merit in these special leave petitions. The special leave petitions are dismissed.

The learned Attorney General for India, appearing for the Tamil Nadu Public Service Commission, raised an issue that with reference to a contra view taken by another Judgment of Madurai Bench of the Madras High Court, at the instance of one of the employees an SLP is pending in this Court. Since the issue is now covered by the decision of this Court in Bimlesh Tanwar (supra), the pendency of the said SLP will be of no consequence as the said SLP should also be covered by the said judgment of this Court, namely, Bimlesh Tanwar (supra).” [emphasis supplied] 17

21. It will be relevant to refer to the following observations of

this Court in the case of Kunhayammed and Others v. State

of Kerala and Another7:­

“27. A petition for leave to appeal to this Court may be dismissed by a non­speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non­ speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or

7 (2000) 6 SCC 359

18 canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.”

22. It is thus clear that this Court in unequivocal terms has

held that if the order of dismissal of SLPs is supported by

reasons, then also the doctrine of merger would not be

attracted. Still the reasons stated by the court would attract

applicability of Article 141 of the Constitution of India, if there

is a law declared by this Court which obviously would be

binding on all the courts and the tribunals in India and

certainly, the parties thereto. It has been held that no court,

tribunal or party would have the liberty of taking or canvassing

19 any view contrary to the one expressed by this Court. Such an

order would mean that it has declared the law and in that light,

the case was considered not fit for grant of leave.

23. This Court, while dismissing the SLPs against the first

judgment, has clearly held that after the emergence of the

judgment in Bimlesh Tanwar (supra), the fundamental

principle governing the determination of seniority was that, it

should be based on merit list of selection and that the list made

on the basis of roster point, would not be permissible in law. It

could thus be seen that while dismissing the SLPs, this

Court has reiterated the legal position as laid down in the case

of Bimlesh Tanwar (supra) to the effect that while determining

seniority, what is relevant is the inter se merit in the selection

list and not the roster point.

24. It is pertinent to note that though, the then learned

Attorney General had raised an issue with regard to a contrary

view taken by the Madurai Bench of the same High Court, this

Court clearly held that since the issue was now covered by the

20 decision of this Court in Bimlesh Tanwar (supra), the

pendency of the SLPs challenging the judgment of Madurai

Bench, would be of no consequence inasmuch as the said SLPs

would be governed by the judgment of this Court in Bimlesh

Tanwar (supra).

25. It is thus clear that though it cannot be said that the

second judgment of the Madras High Court has merged into the

order of this Court dated 22 nd January 2016, still the

declaration of law as made in the said order, would be binding

on all the courts and tribunals in the country and in any case,

between the parties.

26. In that view of the matter, the respondents were bound to

follow the law laid down by this Court and determine the inter

se seniority on the basis of selection by TNPSC and not on the

basis of roster point.

27. At the cost of repetition, we may clarify that though

various arguments were advanced with regard to the merits of

the matter by the learned Senior Counsel appearing on behalf

21 of the respondent authorities, we cannot go into those aspects

inasmuch as we are exercising limited jurisdiction of contempt.

Insofar as the lis between the parties is concerned, it has

achieved finality by the order of this Court dated 22 nd January

2016. We find that the seniority list, which is purportedly

published in accordance with the order of this Court, is totally

in breach of the directions of this Court. A first glance at the

list would reveal that various selectees, who have received

much less marks, are placed above the selectees who have

received higher marks. We, therefore, have no hesitation to

hold that the following persons named in our order dated 11 th

February 2021, are guilty of having committed contempt of

order of this Court:­

“C.P.(C)No.638 of 2017 in C.A.No.4954 of 2016

1) M. Vijayakumar

2) S. Thinakaran

Dy No.16048 of 2020 in SLP(C) Nos.2890­2894 of 2016:

22

1) Dr. S. Swarna

2) K. Ramamoorthy

3) K. Nanthakumar

C.P.(C) No.1247 of 2019 in SLP (C) No.2886 of 2016:

1) K. Shanmugam

2) K. Nanthakumar

3) Dr. K.Manivasan

4) K. Ramamurthy

C.P.(C)No.1848 of 2018 and C.P.(C)No.2188 of 2018 in SLP (C)No.2886 of 2016:

1) K. Nanthakumar

2) S. K. Prabhakar

3) S. Bakthavathchalam”

28. We therefore direct the respondents to revise and publish

the seniority list of the selectees, who were selected in the

selection process conducted in pursuance of the notification

issued by TNPSC dated 10th September 1999, strictly on the

basis of the merit determined by it in the selection process and

not on the basis of the roster point. The same shall be done

within a period of 12 weeks from the date of this order.

23

29. Insofar as the issue with regard to quantum of

punishment to be imposed upon the aforesaid contemnors is

concerned, the matter be kept on 10 th January 2022. We clarify

that on the said date, the persons named in paragraph (25) who

have been held guilty of contempt of this Court by us, shall

remain present before this Court and would be heard on the

quantum of punishment.

30. Insofar as SLP(C) Nos. 12114­12117 of 2021 are

concerned, in view of the order passed by us in the contempt

petitions, no order is necessary. Accordingly, the said SLPs are

disposed of.

…..…..….......................J. [L. NAGESWARA RAO]

…….........................J. [B.R. GAVAI] NEW DELHI;

OCTOBER 01, 2021.

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