Navindra Raghav And Ors. vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 445 Del

JUDGMENT

S.B. Sinha, C.J.

1. This writ petition is directed against a judgment and order dated 18.01.2002 passed by the Central Administrative Tribunal, Principal Bench (hereinafter referred to as 'the Tribunal') in O.A. No. 1636 of 2001 whereby and whereunder the Original Application filed by the petitioners herein was dismissed.

2. The petitioners are working as Assistant Engineers (Civil) / Assistant Surveyor Works (Civil) in the All India Radio, New Delhi (in short, 'AIR'). They had been in the grade of Junior Engineers earlier.

3. Allegedly at the time of their joining, they were governed by the Recruitment Rules framed in the year 1975. The said Rules was amended in the year 1988, which inter alia provided for promotion to the post of Assistant Engineer from Junior Engineer subject to having 8 years' of regular service in the grade in the case of diploma holders and 5 years' of regular service in the grade in the case of Degree holders.

4. The said Rule of promotion is in the following terms:-

"1. Junior Engineers holding Degree in Civil Engineering with 5 years' regular service in the grade.

2. Junior Engineers holding Diploma in Civil Engineering with 8 years' regular service in the grade."

5. Admittedly some of the Degree-holders obtained their Degree during their employment as Junior Engineers; pursuant whereto they claimed that upon completion of 5 years' regular service, they should be promoted irrespective of their date of obtaining the Degree.

6. It is not in dispute that the matter was referred to a Full Bench of the Tribunal in O.A. No. 2055 of 1995 and O.A. No. 1638 of 1995, which were allowed by an order dated 30.01.2001. Pursuant to and in furtherance of the said judgment, the petitioners have been reverted.

7. The contention of the petitioners before the learned Tribunal was that having regard to the fact that at the time of their joining, 1975 Rules were operative, the subsequent amendment in Rules in the year 1988 would not apply in their case.

8. In any event, the learned counsel would contend that they were entitled to be given an opportunity of hearing and furthermore it was a fit case where supernumerary posts could be directed to be created.

9. The learned Tribunal, as noticed hereinbefore, inter alia held that as the case of the petitioners was covered by the aforementioned Full Bench judgment, no relief can be granted to them.

10. The order dated 19.06.2001 impugned before the Tribunal is as under:-

"... ... ... ... ... ...

In pursuance of the Order dated 30.1.2001, delivered by the Hon'ble Principle Bench, CAT, New Delhi in O.A. No. 1638/95 filed by Shri P.K. Agarwal, DG : AIR is pleased to quash the recommendations of the review DPCs held on 20.3.95, 10.4.95, 17.4.95 and 26.4.95. Consequently, the following Assistant Engineer (C) / Assistant Surveyor of Works (C) stand reverted to the grade of Junior Engineer (C), with immediate effect and in supersession of this Dte's Office Order No. A 32014/1/95-CW-I dated 27.6.95:

S. NO.        Name  

1.               S/Shri Sujit Chakraborty
2.               " M.K. Chattopadhyay
3.               " Apporval Banerjee
4.               " B.R. Das
5.               " K. Gobardhan
6.               " Mohd. Jahir Huzane
7.               " K.S. Kushari
8.               " B. Basu
9.               " Rakesh Chandra
10.              " Lalit Kumar
11.              " H.P. Singh
12.              " P.S. Pawar
13.              " Shibu Simon
14.              " D.C. Sharma
15.              " Narendra Raghav
16.              " Balwant Singh
17.              " Gunjan Pal

 

 

2. This order is subject to the final outcome of the appeal pending in Hon'ble High Court, Delhi in CWP No. 6891/2000 against the Full Bench decision dated 6.12.99.

3. The officers are directed to report to their concerned SE(C) / SSW(C) immediately for their further posting.

4. This issues with the approval of the competent authority.

(A.J.S. Uppal)

Engineer Officer-I to CE-I.

... ... ... ... ... ..."

11. Mr. Sunil Ojha, the learned counsel appearing on behalf of the petitioners, would submit that the learned Tribunal must be held to have erred insofar as it failed to take into consideration that the amended Rules are not applicable in the case of the petitioners. In support of the said contention, strong reliance has been placed on P. Mohan Reddy v. E.A.A. Charles and Ors. JT 2001 (3) SC 1.

12. The learned counsel would contend that the decision of the Full Bench of the Tribunal has been questioned before this Court in C.W.P. No. 6891 of 2000 and C.W.P. No. 4542 of 2000, and thus the learned Tribunal erred in following the same.

13. In any event, contends the learned counsel, an interpretation of law cannot adversely affect the seniority of the parties. Furthermore, the learned counsel would urge the supernumerary posts ought to have been directed to be created as has been done by the Apex Court in Harbans Singh v. State of Punjab and Ors. 1995 (5) SLR 224 and Union of India and Ors. v. T.G. Abraham and Ors. JT 1999 (4) Sc 642.

14. The learned counsel would contend that the impugned order could not have been passed without following the principles of natural justice. Reliance in this connection has been placed on Shrawan Kumar Jha and Ors. v. State of Bihar and Ors. .

15. The learned counsel would also contend that the petitioners were entitled to protection of their seniority in terms of the Circular issued by the Director General of AIR dated 03.05.1989.

16. The question as regards interpretation of the rules came up for consideration before a Full Bench of this Court in C.W.P. No. 4646 of 1993 titled 'S.P. Dubey v. Municipal Corporation of Delhi and Ors.' disposed of on 25.01.2002. In that case, it was held as follows:-

"... The diploma holders and degree holders, as noted herein before, were at par. The said chart itself shows that a common seniority list was maintained. Educational qualification was to be considered for the purpose of eligibility alone. Once it is held that both the degree holders and diploma holders had been performing same type of functions, there cannot be any doubt whatsoever that their experience would be counted for the purpose of their promotion irrespective of their educational qualification. As and when diploma holders acquire qualification only then, they become eligible for consideration in the degree holder's quota.

It is our considered view, it is idle to contend that any anomaly exists.

Nobody has a right to be promoted. Chance of promotion is not a condition of service under Article 16 of the Constitution of India. Chance of promotion may vary from time to time. Thus, only because having regard to the circumstances prevailing at one point of time, the degree holders could not be promoted the same by itself would not justify the construction/interpretation of statutory rules in some other manner. Hardship by itself cannot be a ground for striking down a legislation.

We, therefore, answer the question referred to us in the following terms:-

1. Principles of res judicata in the instant case has no application.

2. The experience gained by diploma holders as Junior Engineer has to be counted for promotion to the post of Assistant Engineer, in the event they are duly qualified as degree holders."

17. The contention of the petitioners to the effect that the Tribunal was not bound by the Full Bench judgment is not correct. Judicial discipline, it is trite, mandates that a Division Bench of the Tribunal must follow the earlier decision of the Full Bench of the Tribunal irrespective of the consequences. The Full Bench of the Tribunal has interpreted relevant rules. Such interpretation must be given its full effect irrespective of the fact as to whether thereby right of another would be affected or not.

18. The Full Bench of the Tribunal has categorically held that those, who have acquired higher qualification of Degree in the event also had the requisite experience of 5 years, are entitled to be promoted. Such an interpretation has also, as noticed hereinbefore, found favor with the Full Bench of this Court in S.P. Dubey's case (Supra), wherein this Court has held that the experience gained by diploma holders as Junior Engineer has to be counted for promotion to the post of Assistant Engineer, in the event they are duly qualified as Degree holders.

19. When a judgment of the Court is to be given effect to, the principles of natural justice will have no application. It is now well known that the principles of natural justice have undergone a radical change. It is not, in every case, that the High Court would entertain a writ petition only on the ground that violation of principles of natural justice has been alleged. The Apex Court, in State Bank of Patiala and Ors. v. S.K. Sharma has clearly held that a person complaining about the violation of the principles of natural justice must show causation of a prejudice against him by reason of such violation. The apex court has held that the principles of natural justice may be said to have been violated, which requires an intervention when no hearing, no opportunity or no notice has been given. Reference in this connection may also be made to Managing Director , E.C.I.L. v. B. Karmakar AIR 1994 SC 1076.

20. As to what extent the petitioners have suffered prejudice would be a question, which would fall for a decision of a Higher Court/Tribunal. Where such a disputed question arises, in the considered opinion of this court, a writ application will not be entertained only because violation of natural justice has been alleged.

21. In Khaitan (India) Ltd. and Ors. v. Union of India and Ors. 1992 (2) CAL LT. 478, it was held:-

"11. The concept of principles of natural justice has undergone a radical change. It is not a every case, that the High Courts would entertain a writ application only on the ground that violation of principles of natural justice has been alleged. The apex court, in State Bank of Patiala and Ors. v. S.K. Sharma clearly held that a person complaining about the violation of the principles of natural justice must show causation of a prejudice against him by reason of such violation. The apex court has held that the principles of natural justice, may be said to have been violated which require an intervention when no hearing, no opportunity or no notice has been given. Reference in this connection may also be made to Managing Director, E.C.I.L. v. B. Karmakar, reported in AIR 1994 SC 1076. The question as to the effect of non-grant of enough opportunity to the learned counsel for the appellant by the Commission to meet the allegations made in the supplementary affidavit requires investigation. As to what extent the appellant has suffered prejudice would be a question which would fall for a decision of Higher Court."

22. The decision of the Apex Court in Shrawan Kumar Jha's case (Supra) is not apposite. The said decision was rendered in the facts and circumstances of that case. In that case, it was not held that the appointment was nullity. Once an appointment or promotion is held to be nullity being contrary to the rules, the affected employees cannot claim any right thereby.

23. The submission of the learned counsel appearing on behalf of the petitioner will apply in all fours in the case of the affected employees. They had also a right of the promotion, they had been denied such a right by wrong interpretation of the provisions of law, which has since been corrected. Their right, thus, was protected under Articles 14 and 16 of the Constitution of India (hereinafter referred to as 'the Constitution'). If promotion has been granted to the petitioners in violation of law, as declared by the Apex Court as also by this Court, the same being a nullity, no benefit thereby could be claimed to be derived by others.

24. Furthermore, it is trite that when no purpose would be served by grant of giving an opportunity of being heard, the principles of natural justice need not be complied with. In S.L. Kapoor v. Jagmohan and Ors. , the Apex Court has held:-

"In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal."

25. The principles of natural justice must not be applied rigidly. The principles of natural justice are not necessary to be complied with unless a serious prejudice has been caused and their applicability also varies from case to case. See Hari Pada Khan v. Union of India and Ors. ; Hindustan Paper Corporation v. Purnendu Chakrobarty and Ors. ; Punjab & Sind Bank and Ors. v. Sakattar Singh (2001) 1 SCC 214; and Aligarh Muslim University and Ors. v. Mansoor Ali Khan

26. The learned counsel appearing for the petitioner in our opinion is also not correct in contending that 1988 Rules will have no application. By reason of an amendment in the year 1988, further opportunity of promotion had been granted to those who acquired higher qualification. Thus such an amendment is not ultra vires.

27. The decision of the Apex Court in P. Mohan Reddy (Supra) cannot be said to have any application in the instant case. In that case, rule of retrospectivity was struck down. In the instant case, 1988 Rules had not been given any retrospective effect. They had been given prospective effect and in that view of the matter, the decision of the Apex Court wherein it was stated as follows cannot be said to have any application whatsoever.

"17. A conspectus of the aforesaid decisions of this Court would indicate that even though an employees cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the Cadre. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective affect. If the retrospectivity of the Rule is assailed by any person, then the Court would be entitled to examine the same and decide the matter in accordance with the law. If the retrospectivity of the Rule is ultimately struck down, necessarily the question of redrawing of the seniority list under the amended provisions would not arise, but if however, the retrospectivity is upheld by a Court then the seniority could be redrawn in accordance with the amended provisions of the employees who are still in the cadre and not those who have already got promotion to some of the cadre by that date. Further a particular Rule of seniority having been considered by Court and some directions in relation thereto having been given, that direction has to be followed in the matter of drawing up of the seniority list until and unless a valid Rule by the Rule making authority comes into existence and requires otherwise, as was done in Bola's case (supra). It may be further stated that if any Rule of Administrative Instruction mandate drawing up of seniority list or determination of inter se seniority within any specified period then the same must be adhered to unless any valid reason is indicated for non-compliance of the same."

28. So far as prayer for ceratin of supernumerary posts is concerned, this Court is of the opinion that such a direction cannot be issued by this Court in exercise of its jurisdiction under Article 226 of the Constitution. The decision of the Apex Court in Harbans Singh's case (Supra) and T.G. Abraham's case (Supra) cannot be said to have any application and the same were rendered in a different fact fact situation.

29. In any event, such a direction can be issued by the Apex Court in exercise of its jurisdiction under Article 142 of the Constitution, which power this Court does not possess.

30. For the reasons aforementioned, there is no merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of this case, no order as to costs.