The Central Secretariat ... vs The Central Secretariat Service, ...
2010 Latest Caselaw 2794 Del

              THE HIGH COURT OF DELHI AT NEW DELHI


%                               Judgment Reserved on: 15.05.2010
                                Judgment Delivered on: 26.05.2010

+            W.P(C) No.4876/2007 & CM No.6943, 11867, 11868/2009
             & 1178/2010

The Central Secretariat Stenographers Service Association & Ors.
                                                      ... Petitioners

                                - versus -

The Central Secretariat         Service,     Direct    Recruit Assistants
Association & Ors.                                       .... Respondents

Advocates who appeared in this case:
For the Petitioners : Mr Ajit Kumar Sinha, Sr. Adv with Mr R.
                      Balasubramanian, Mr Ashwqarya Sinha and Mr Rohit
                      Tripathy, Advocates
For the Respondent  : Mr Sudhir Nandrajot, Sr. Adv. with Mr. A.K. Behera
                      and Mr A.K. Bhardwaj, Advs.
For the Intervenrs  : Gr Capt. Karant Singh Bhati Advocate

For the Interveners   : Mr Padam Kumar S., Advocate
/Petitioners in
CM 9321/2009

CORAM:-
HON'BLE MR JUSTICE A.K. SIKRI
HON'BLE MR JUSTICE V.K. JAIN

     1.    Whether Reporters of local papers may be allowed to
           see the judgment?                                   Yes
     2.    To be referred to the Reporter or not?                   Yes

     3.    Whether the judgment should be reported in Digest? Yes

V.K. JAIN, J.

1. This writ petition is directed against the order of the

Central Administrative Tribunal dated 25.05.2007 in

O.A.No.145/2006 read with O.A. No.669/2006, whereby the

Tribunal declined to recall/modify its order dated 11.11.2005

passed in OA No.1435/2005, quashing para 4 of the Central

Secretariat Service Section Officers Grade/Stenographers

Grade B (Limited Departmental Competitive Examination)

Regulations, 1964 (hereinafter referred to as the Regulations)

whereby the members of the Central Secretariat Stenographer

Services were eligible to sit in the Limited Departmental

Competitive Examination (LDCE) for the post of Section

Officers.

2. The Central Secretariat Stenographers' Service

(hereinafter referred to as CSSS) is one of the three Central

Secretariat Services, the other two being Central Secretariat

Service (CSS) and the Central Secretariat Clerical Service. Rule

13 of the Central Secretariat Service Rules 1962 (hereinafter

referred to as "the Rules") framed under the proviso to Article

309 of the Constitution of India, to the extent it is relevant

reads as under:-

"13. Recruitment to the Section Officers' and the Assistants' Grade- (1) Section Officers Grade - Twenty per cent of the regular vacancies in the Section Officers' Grade in any cadre shall be filled by direct recruitment on the basis of the result of a competitive examination held by the Commission for this purpose, from time to time. The remaining vacancies shall be filled by appointment of persons included in the Select List for

the Section Officers' Grade. Such appointments shall be made in the order of seniority in the Select List except when for reasons to be recorded in writing, a person is not considered fit for such appointment on his turn.

Rule 23 of the aforesaid Rule reads as under:-

23.Regulations.- The Department of Personnel and Training in the Ministry of Personnel, Public Grievance and Pensions may make regulations, not inconsistent with these rules, to provide for all matters for which provision is necessary or expedient, for the purpose of giving effect to these rules."

3. Regulation 4 of Central Secretariat Service Section

Officers' Grade/Stenographers' Grade „B‟ (Limited

Departmental Competitive Examination) Regulations, 1964

reads as under:-

Conditions of Eligibility- Any permanent or temporary officer of the Assistants' Grade of the Central Secretariat Service or of Grade C of the Central Secretariat Stenographers' Service who, on the crucial date, satisfies following conditions, shall be eligible to appear at the examination."

4. In the LDCE held in the year 1975, for preparation of

a list of candidates qualified to be appointed to the grade of

Section Officers in the Central Secretariat Service,

Stenographers belonging to grade-II of the CSSS were allowed

to compete along with the Assistants. This was challenged by

some Assistants by filing CWP No.1122/1975 before this

Court. The challenge was based on two counts. The first

ground taken by the petitioners before this Court was that the

scheme of the Rules and the fourth schedule thereof was such

that only the Assistants were meant to compete at the LDCE.

Their contention was that the Regulations, to the extent they

enabled the Stenographers to compete in the Examination,

along with the Assistants, were ultra vires the Rules. The

second plea taken by the petitioners was that if the

Regulations were not ultra vires, then the Rules themselves

were unconstitutional being contrary to Article 14, 16 and 309

of the Constitution.

5. A Division Bench of this Court was of the view that

the question whether Assistants alone should be allowed to

compete at the Examination was entirely administrative, there

being no law involved in it. It was noted that the regulations

were framed by the same department which had framed the

Rules. This Court found it difficult to accept that the

department which allowed the Stenographers to compete at the

examination, they did not know its own mind reflected in the

language of the Rules. This Court rejected the contention that

the word 'persons' in the Rules must be construed to mean

only the Assistants and no other person. It was observed by

this Court that had the intention been to confine entry to the

LDCE only to the Assistants, the word 'Assistants' would

have been used in place of the words 'persons'. The only

inference found possible by this Court, therefore, was that the

entry was not intended to be confined to the Assistants but

was meant to allow other departmental candidates also to

appear in the Examination. Thus, challenge to the validity of

the Regulations was not accepted by this Court.

6. As regards Constitutional validity of the Rules, one of

the contentions of the petitioners before this Court was that

the Assistants were doing work which was more akin to the

work of Section Officers, while the Stenographers were doing

totally different work. It was also contended that the

Assistants needed to be graduates whereas Stenographers

could be only matriculates and, therefore, the

'unequals'were being treated as 'equals' for the purpose

of appearing at the Departmental Competitive Examination

thereby violating Article 16 read with Article 14 of the

Constitution. The contention was, however, rejected by this

Court which did not find the Stenographers Grade-II in any

way inferior to the Assistants for the reasons that both of them

have enjoyed the same scales of pay and many of the

Assistants were promotees from the Grades of clerks for which

the qualification required was only matriculation. It was also

noted that an expert body like the Third Pay Commission had

recommended that the Stenographers should be allowed to

compete at the Limited Departmental Competitive Examination

and the Union Public Services Commission had also agreed to

the proposal. It was further noted that the Government had

taken into consideration the stagnation suffered by the

Stenographers before allowing them to appear at the LDCE. It

was also observed by this Court that the work done by the

Stenographers as Personal Assistants to the Officers was of a

higher kind then the work done by the Assistants. This Court

was of the view that since only a person who passes the LDCE

is allowed to become a Section Officer, the test being common

for both the Assistants and the Stenographers, both stand on

an equal footing after passing the test and any difference in

their qualifications and experience prior to the passing of test

then becomes immaterial. It was held that Article 16 & 14

were not violated. This Court took note of the fact that in the

year 1970 a new avenue of the promotion was opened to the

Stenographers in their own service and their eligibility at the

LDCE was discontinued, but, on second thoughts, the

Government decided, in the year 1973, to allow them to appear

at the examination in view of the recommendations of the Third

Pay Commission. This Court found nothing wrong with the

decision taken by the Government and dismissed the writ

petition. The rules having been upheld, were operated and

followed ever since for almost 30 years.

7. Issue was however sought to be revived by the

Respondent No.1, Central Secretariat Service Direct Recruits

Assistants Association and some Assistants, who filed

O.A.No.1435/2005 before the Central Administrative Tribunal

challenging Regulation 4 of the Regulations and also sought a

declaration that Grade 'C' Stenographers of CSSS were not

eligible for appearing in the aforesaid examination. The basic

grievance of the petitioners before the Tribunal was that

Regulation 4 of Regulations 1962 travelled beyond the Rules

and the Regulation being a subordinate regulation made under

the 1962 Rules cannot travel beyond the parent Rules. It was

contended before the Tribunal that the Rules did not provide

for entry of Grade 'C'Stenographers into Section Officers

Grades of CSS and they had been made eligible to sit in the

examination, in contravention of the Rules.

Neither the petitioner, i.e., the Central Secretariat

Stenographers Service Association, nor any Grade „C‟

Stenographer was impleaded as a party to this OA. It was

contended before the Tribunal that the Rules, which were

framed under the proviso to Article 309 of the Constitution, did

not either explicitly or implicitly made Stenographers of Grade

„C‟ eligible or feeder category for promotion to Assistant grade

and, therefore, the Regulations, framed under the aforesaid

Rules, could not make them eligible and feeder grade since the

Regulations, which are in the nature of administrative

guidelines, cannot supplement the rules.

8. The material question, which the Tribunal considered

in that OA, was as to whether para 4 of the Regulations,

making Grade „C‟ Stenographers eligible for LDCE was valid

and legal or not. It was observed by the Tribunal that power to

frame Rules will not include the power to lay down the

conditions of eligibility and making a cadre, which is alien and

outside the normal channel and promotion, eligible for the

grade of Sections Officers in the CSS. It was observed that the

Grade „C‟ Stenographers were eligible for promotion to the next

higher Grade in their own channel of stenography. It was

observed that the Parliamentary Standing Committee of

Ministry of Home Affairs in its Eighty-Third Report had

observed that the channels of promotion of CSS Assistants and

Grade „C‟ Stenographers being different from each other, only

CSS Assistants should be allowed to compete in the LDCE for

CSS Sections Officers, but, the Government had diluted the

recommendations made by the Committee by deciding that

only those stenographers, who are graduate would be allowed

to participate in the LDCE for the Sections Officers Grade of

CSS. The Tribunal was of the view that CSS Rules envisage

selection for appointment to Sections Officers and Assistants

from the categories of officials prescribed in Rule 13 and it

could not admit of any doubt so that the Department could

make the Stenographers eligible for selection and appointment

to Sections Officers‟ Grade. The Tribunal was of the view that

the Assistants and Stenographers belonged to two different

classes and groups and they being unequal in important

matters, such as nature of posts, duties and responsibilities to

be decided by them in such posts, were not comparable. The

Tribunal took the view that the Government, while framing

1964 Regulations, had enlarged the scope of the Rules, which

was beyond its competence and jurisdiction since executive

instructions could not override any provision of Rules. Para 4

of the Regulations was, therefore, held to be ultra vires and

inconsistent to Rule 13, read with para 2 under the Fourth

Schedule of the Rules. The aforesaid para was accordingly

quashed and set aside with all consequential benefits.

9. A number of writ petitions were filed before this Court

against the order dated 11th November, 2005, passed by the

Central Administrative Tribunal. It was noted by this Court

that the directions issued by the Tribunal had adversely

affected the petitioners by taking away their rights under para

4 of the Regulations. It was also noted that the Tribunal had

rejected the preliminary objection raised by the Union of India

that the petition was not maintainable, without impleading the

association of Stenographers. The petitioners before this Court

pointed out that the decision, rendered by the Tribunal on

11th November, 2005 was contrary to and inconsistent with

the decision of this Court in W.P.No.1122/1975 decided on

05th November, 1976 and the decision of the Tribunal in OA

No.1091/2005 decided on 26th July, 2005. A preliminary

objection was taken by the private respondents regarding

maintainability of the writ petitions on the ground that the

petitioners were not parties to the OA filed before the Tribunal.

In view of this, the petitioners were permitted to withdraw the

writ petition with liberty to file a fresh petition before the

Tribunal under Section 19 of Central Administrative Tribunal

Act and were also permitted to raise all those issues which they

had raised in the writ petitions. It was directed by this Court

that if and when such pleas are raised before the Tribunal, the

same shall be considered by it in accordance with law and if it

is found that the decision of this Court and the decision of the

Tribunal governed the case of the parties, orders shall be

passed by the Tribunal in accordance with law. It was also

directed that if the Tribunal finds that the order passed by it

on 11th November, 2005 was contrary to the aforesaid

decisions, the matter shall be referred by it to the Larger

Bench, wherein all the pleas, arising out of the disputes

between the parties, shall be urged and decided by the

Tribunal.

10. OA No.145/2006 and 669/2006 were accordingly

filed by Stenographers, seeking review and recall of the order

dated 11th November, 2005.

11. It was contended before the Tribunal that the

judgment of this Court in CWP 1122/1995 titled as „Joginder

Lal Sawhney & Ors. vs. Union of India‟ was rendered in a

different factual situation relating to service condition of

Stenographers in CSS, which was not a valid precedent after

passage of such a long time, particularly when there had been

sea-change in the service conditions, namely promotional

avenues, besides grant of financial up-gradation under ACP

scheme and host of other aspects. It was further contended

that career prospects and promotional avenues in CSSS had

tremendously improved since 1975, the chances of stagnation

in that service had been reduced and, therefore, the delegated

legislation, even if valid in the year 1975-76, was not valid

anymore.

12. The Tribunal noted that the Fifth Central Pay

Commission had observed that the Stenographers in the

Secretariat were at a more advantageous position as far as time

taken for promotion from one grade to another was concerned

when compared to their counterparts in subordinate offices

and almost at the same position with other comparable service

in the Secretariat and had taken a view that the promotional

opportunities for a particular service could not be improved at

the expense of another service. It was also noted that the

applicants could have promotion in their normal channel of

promotion since Stenographer Grade III could be promoted to

Stenographer Grade II and Grade I and could reach up to the

level of Senior Principal Private Secretaries, who were

equivalent to Deputy Secretaries. It was observed by the

Tribunal that in the current era of globalization when the

entire philosophy of society, on the economic front, is

undergoing drastic changes and much emphasis is laid on in

the concerned field, Stenographers certainly should

concentrate only on their own line and channel and not outside

their normal field. The Tribunal also took note of the

recommendations made by the Standing Committee of

Parliament in its Eighty-Third Report, recommending therein

that only Assistant should be allowed to appear in LDCE for

Sections Officers. Considering that CSS enjoys promotional

avenues and channel of promotion in their own line, which

were not available to them three decades ago, the Tribunal saw

no justification in their being allowed to encroach upon

another distinct line and cadre of Assistants. The Tribunal,

therefore, held that the judgment of this Court in the case of

Joginder Lal Sawhney (supra) was not a valid precedent after

passage of almost three decades. The Tribunal accordingly

found no justification to recall/review its order dated 11th

November, 2008 passed in OA No.1435/2005. However, on

equitable considerations, the Tribunal directed that

Stenographers, who had appeared in the examination for the

post of Section Officer till the year 2005 and had successfully

cleared that examination, needed to be protected and should

not be disturbed.

13. The order dated 25.05.2007 has been challenged

before us primarily on the ground that it is contrary to the

decision of this Court in the case of Joginder Lal Sawhney

(supra) as well as its decision dated 06.01.2006 in W.P.(C)

No.3891-94/2005. The grievance of the petitioners is that the

Tribunal being subject to the writ jurisdiction of this Court has

not maintained the judicial discipline. The contention of the

petitioners is that it was not open to the Tribunal to hold that

the judgment of the Division Bench of this Court was not a

valid precedent.

14. In its counter-affidavit, respondent No.6 Union of

India has stated that the order of the Tribunal was examined

by the department and it was decided to accept and implement

the same from 2005 onwards.

15. The private respondents have submitted that the

promotional prospects in the CSS and the promotional

prospects in the Central Secretariat Stenographers' Service

now stand on a totally different footing than it was thirty years

ago. It is further stated that there is acute stagnation in

Central Secretariat Service whereas enough opportunity of

promotion is available in CSSS, within their own cadre and

considering these factors along with other relevant factors, the

Tribunal was right in holding against lateral entry of

Stenographers to CSS at the level of Section Officers.

16. In the case of Joginder Lal Sawhney(supra) the

petitioners before this Court, all of whom were Assistants in

Central Secretariat Service had challenged the vires not only of

the Rules but also of the Regulations. The Tribunal vide

impugned order dated 25.5.2007 has not gone into

constitutional validity of the Rules but has held the

Regulations to be ultra vires. In the case of Joginder Lal

Sawhney(supra), the validity of the Regulations was challenged

primarily on the ground that they were ultra vires the rules

which envisage only the Assistants to compete at the LDCE.

This court rejected the challenge, holding that the question as

to whether the Assistants alone should be allowed to compete

at the examination was an administrative decision, and no

question of law was involved in it. This Court specifically

rejected the contention that the expression "persons" must be

considered in the context of the scheme of rules, to mean only

the "Assistants". The Tribunal, therefore, while quashing para

4 of the Regulations of 1964 passed an order which is

diametrically opposite to the decision of this Court dated

6.1.2006 in the case of Joginder Lal Sawhney(supra).

17. The following justifications were given by the Tribunal

for taking a view contrary to the decision of this Court in the

case of Joginder Lal Sawhney(supra):

1. In the current era of globalization where much emphasis is laid on specialization in the concerned filed Stenographers should concentrate only on their own line of channel and not outside their normal field.

2. The Government of India had taken a policy decision to discontinue the lateral entry of Central Secretariat Services at the level of Under Secretary.

3. The stagnation in CSS was alarming. The Assistants have to wait for more than 15 years to get promotion to the post of Section Officer.

4. Parliament Standing Committee in its 83 Report had taken a view that rd

only Assistants should be allowed to appear in LDCE for the posts of Section Officers.

18. In our view, none of the reasons given by the Tribunal

justified taking a view contrary to the decision of this Court, in

challenge to the very same Regulations which have now been

struck down by the Tribunal. Justifying its view that the

decision of this Court in the case of Joginder Lal

Sawhney(supra) was not a valid precedent after 30 years, the

Tribunal has relied upon the decision of Supreme Court in

State of Punjab & Another Vs. Devans Modern Breweries

Limited & Another : (2004) 11 SCC 26. While delivering a

dissenting judgment, Hon‟ble Mr.Justice S.B.Sinha, in the case

of Devans Modern Breweries(supra), referred to the principle

„cessante ratione cessat ipsa lex' as explained in Dias

Jurisprudence, 5th Edition pp. 147-147, which reads as under:

".... It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased to have that character owing to altered circumstances."

It was observed that changes are bound to occur in

an evolving society and the judiciary must keep abreast of

these changes in order that the law is considered to be good

law.

19. In our view, the observations made by Hon‟ble

Mr.Justice S.B.Sinha, while delivering dissenting judgment in

the case of Devan Modern Breweries(supra), do not justify the

view taken by the Tribunal while passing the impugned order

dated 25.5.2007. We are unable to accept the contention that

the change in factual situation between the date on which

judgment was rendered by this Court in the case of Joginder

Lal Sawhney(supra) and 11 th November, 2005, when para 4 of

the Regulations was struck down by the Tribunal, had taken

away the binding effect of the judgment of this Court in the

case of Joginder Lal Sawhney (supra). A perusal of the

decision of this Court would show that while upholding the

vires of the Regulations this Court took the view that the

question whether Assistants alone should be allowed to

compete in the Limited Departmental Competitive Examination

was entirely administrative, there being no law involved in it.

The stagnation in the cadre of Stenographers at that time was

not at all the reason for this Court upholding vires of the

Regulations. This Court was not convinced that the

Department which had framed the Rules as well as the

Regulations did not know its own mind as reflected in the

language used in the Rules. Stagnation amongst

Stenographers was taken into consideration by this Court only

while considering whether the Rules were ultra vires the

Constitution of India.

As noted earlier, the Tribunal has struck down para 4

of the Regulations and has not gone into the vires of the Rules.

Therefore, it cannot be said that the decision of this Court in

the case of Joginder Lal Sawhney(supra) had lost its binding

effect, as a precedent, on account of increase in the

promotional avenues available to the Stenographers or on

account of stagnation in the cadre of Assistants having

increased in the meanwhile. It is for the Government, to

decide, after taking into account all the facts and

circumstances, including the Report of Commissions/

Committees which examined this issue and take a view as to

whether there was so much change in the factual situation as

would warrant any amendment to the Regulations, which

permitted the Stenographers to compete at the LDCE. Unless

the Rules framed by the Government under the proviso to

Article 309 of the Constitution are shown to be ultra vires the

constitution or the Regulations framed by the Government in

furtherance of the Rules are shown to be ultra vires the Rules,

it will not be appropriate for the Court to quash or set them

aside. The Tribunal noted that the Government of India had

taken a policy decision to discontinue the lateral entry of

Central Secretariat Stenographer Services Officers into Central

Secretariat Services at the level of Under Secretary, but failed

to notice that no such decision was taken by it with respect to

the lateral entry of Stenographers, by permitting them to

appear in the LDCE for the posts of Section Officers. The

Tribunal also failed to take note of the fact that the Committee

on Cadre Restructuring of CSS, which submitted its report in

February, 2002 recommending that the lateral entry of CSS

Officers into CSS at the level of Under Secretary of CSS be

discontinued, had also recommended that those Stenographers

who were graduates should continue to participate in the

LDCE for Section Officers grade of CSS and accepting that

recommendation, the Government decided to permit only the

graduate Stenographers to participate in the LDCE. No

recommendation was made by the Committee on Cadre

Restructuring of CSS to altogether discontinue the

participation of Stenographers Grade „C‟ in the LDCE for the

Section Officers Grade of CSS. The Tribunal noted that the

Parliament Standing Committee in its 83 rd Report, submitted

on 19th December, 2001, had recommended that only CSS

Assistants should be allowed to appear in LDCE for Section

Officers, but failed to note that the Government even after

receipt of the aforesaid Report chose not to exclude the

Stenographers altogether from participation in LDCE for the

Section Officers Grade of CSS and decided to exclude only

those Stenographers who were not graduates. Therefore, in

our view, there was no justification for the Tribunal to take a

view contrary to the view taken by this Court in the case of

Joginder Lal Sawhney(supra), which was binding upon the

Tribunal.

20. It was contended by Shri Sudhir Nandrajog, learned

senior counsel for the private respondents that the judgment of

this Court in the case of Joginder Lal Sawhney (supra) is per

incuriam, as the attention of this Court in that case was not

drawn to the provisions of Rule 10 of the Rules. The decision of

this Court in the case of Joginder Lal Sawhney(supra), in our

view, cannot be said to be per incuriam, merely because it does

not refer to the provisions of Rule 10 of CSS Rules, 1962. Rule

10, to the extent it is relevant, provides that every duty post in

a cadre shall unless declared to be excluded from the cadre

and/or held in abeyance for any reasons, be held by a cadre of

the officers of an appropriate grade. The contention of the

private respondents is that Rule 10 mandates that all the duty

posts of Central Secretariat Service shall be held by cadre

officers of that service alone. We are unable to accept the

contention of the private respondents. The proviso to Rule 10

itself provides that the officers of Grade A of the corresponding

cadre of Central Secretariat Stenographers Service who have

rendered not less than two years service in that grade may be

posted to duty posts in the Section Officers grade. Therefore, it

cannot be said that the scheme of the Rules totally excludes

manning of the posts of Section Officers by any person other

than a member of Central Secretariat Service. The argument

that the scheme of the rules does not envisage participation by

an outsider in the LDCE for the post of Stenographer was

rejected by this Court in the case of Joginder Lal

Sawhney(supra) holding as under:

"It was argued by Mrs.Shyamla Pappu that the word "persons" must be construed in the context of the scheme of the Rules to mean only "Assistants" and no other persons. The reasons in support of the argument are that the Central Secretariat Service which contains the Grade of Section Officers also contains the Assistants but does not take in the Stenographers who have a separate service of their own. But this cannot

necessarily mean that the posts of Section Officers are to be filled up only by Assistants. Even the Rules as originally framed contemplated Stenographers filling up the posts of Section Officers.

For instance, rule 12(2) allows Stenographers with certain experience and who have acted as Section Officers for two years to be included in the Select List for Grade I of the service. This means that for two years Stenographers were allowed to act as Section Officers with a view to promotion to a Grade above the grade of Section Officers. This Grade I is also in the Central Sectt. Service. The assumption made on behalf of the petitioners that persons outside this Service are not to come into the Service to occupy any Grade in the Service is, therefore, not partly by recruiting Stenographers, there is no a priori reason why the Grade of Section Officers cannot be filed up partly by Stenographers."

We, therefore, are unable to accept the contention of

learned senior counsel for the private respondents, that the

judgment of this Court in the case of Joginder Lal

Sawhney(supra) was per incuriam.

21. It was contended by the learned senior counsel for the

private respondents that with effect from 1.11.1985 the

jurisdiction of the High Court was divested in service matters

and came to be vested in Central Administrative Tribunal and,

therefore in view of the change in the factual scenario in last

30 years, it was permissible for the Tribunal to take a view

contrary to the view taken by this Court in the case of Joginder

Lal Sawhney(supra). We are unable to accept the contention.

In our view, the judgment delivered by a Division Bench of this

Court upholding the vires of the CSS Rules, 1962 and the

Regulations was binding upon the Tribunal. As noted earlier,

the decision of this court upholding the vires of the Regulations

was not based upon the stagnation prevalent in cadre of

stenographers at that time but was based upon the view taken

by this Court that the decision taken by the Government in

this regard was an administrative decision, and no law was

involved in it, and the Court rejecting the contention that while

framing Regulations the Government did not appreciate the

true import of CSS Rules, 1962. In our view, merely because

the Tribunal had the power to adjudicate upon the vires of the

Rules, it cannot be said to be Coordinate-Bench of the High

Court, to the extent that the decision of the High Court, on the

validity of the very same Regulations, which are under

challenge before it, will not be binding on it, despite the fact

that all the decisions of the Tribunal, including the decisions of

the validity or otherwise of a Rule/Regulation are subject to

writ jurisdiction of this Court. We may note here that the

decision of Supreme Court in L Chandar Kumar Vs. Union of

India (1997) 3 SCC 261 holding therein that the Tribunal had

the power to adjudicate upon the vires of any statutory

provisions such decision will be subject to High Court‟s writ

jurisdiction under Articles 226/227 of the Constitution, before

a Division Bench of the concerned High Court, had been

delivered much before the impugned order was passed by the

Tribunal. The Tribunal, therefore, was very much aware of the

binding nature of the judgment rendered by the Division Bench

of this Court. Even otherwise, the law declared by the

jurisdictional High Court is binding on all the Tribunals,

including the Benches of CAT functioning in its local

jurisdiction. We, therefore, are of the view that though the

Tribunal was competent to examine the vires of the

Regulations, it could not, while doing so, have taken a view

contrary to the view taken by the Division Bench of this Court

in the case of Joginder Lal Sawhney(supra). Even a

Coordinate-Bench of this Court is bound by the judgment

rendered by this Court in the case of Joginder Lal

Sawhney(supra) and if it for some reasons does not agree with

the view taken in that case, the only course of action available

to it is to refer the matter to a larger Bench. As far as the

Tribunal is concerned, it was in any case bound by that

judgment.

22. The Supreme Court in M.A.Murthy Vs. State of

Karnataka : (2003) 7 SCC 517, inter alia, observed as below:

"The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs."

It was further observed that, as noted in Pradip

Chandra Parija Vs. Pramod Chandra Patnaik : (2002) 1 SCC

1, judicial discipline envisages that a coordinate Bench follow

the decision of an earlier coordinate Bench and that if it does

not agree with the principles of law enunciated by another

Bench, the matter may be referred only to a larger Bench. It

was further noted that, as noted in Kalyani Stores Vs. State

of Orissa : AIR 1966 SC 1686 and Krishan Kumar Narula Vs.

State of J & K : AIR 1967 SC 1368, no decision can be arrived

at contrary to or in consistent with the law laid down by the

coordinate Bench.

In Vijay Laxmi Sadhu (Dr.) Vs. Jagdish : (2001) 2

SCC 247, Supreme Court, inter alia, held as under:

"...... It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether, on the basis of „different arguments‟ or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs."

In State of Bihar Vs. Kalika Kuer : (2003) 5 SCC

448, Supreme Court, inter alia, held as under:

"The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two days - either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits."

23. It was also contended by the learned senior counsel

for the private respondents that since the Government, which

is the Rule making authority has decided to accept the decision

of the Tribunal from 2005 onwards, as stated in para 5 of the

affidavit filed by the Union of India, it amounts to amendment

of Regulations and the Rules by implication. It was also

pointed out that since the Regulation was struck down by the

Tribunal on 11th November 2005, there was no occasion for the

Government to amend the Regulations thereafter, taking the

changed factual situation into consideration. We are unable to

agree with the learned senior counsel for two reasons. Firstly,

despite receipt of Reports referred in the order of the Tribunal,

the Government did not make any amendment in the Rules or

Regulations before till the Regulation itself was struck down by

the Tribunal on 11th November, 2005. Nothing prevented the

Government from carrying out appropriate amendment in the

Rules/Regulations if it was satisfied that considering the

removal/reduction of stagnation amongst Stenographers,

coupled with increase in stagnation amongst Assistants, lateral

entry of Stenographers in the cadre of Section Officers in

Central Secretariat Service was not justified anymore. The

Government, however, did not take resort to any such

amendment. Even while issuing the order dated 27.7.2005

after considering the Report of the Committee on Cadre

Restructuring of CSS, the Government allowed graduate

Stenographers to continue to participate in LDCE for the

Section Officers Grade of CSS. Even in its counter-affidavit

filed before the Tribunal in OA No.1435 of 2005 the

Government took the stand that the provision of lateral entry of

Stenographers Grade „C‟ in Section Officers Grade through

LDCE was in accordance with the Rules. Hence, the decision

taken by the Government after 11th November, 2005, to accept

the decision of the Tribunal, in our view, does not amount to

amendment of Rules or Regulations. Secondly, despite order of

the Tribunal dated 11th November, 2005, having been

challenged firstly before this Court in CWP 23891-94/2005

and then by filing OA No.145/2006 and 696/2006, before the

Tribunal, no effort was made by the Court to amend the very

Rules, under which the Regulations were framed by it, so as to

give a legal effect to the decision taken by it. Had that been

done by the Government, OA No.145/2006 and 696/2006

would probably have become infructous. Moreover, had the

Rules been amended by the Government, the Stenographers

would have been entitled to challenge the amendment before

an appropriate forum. We, therefore, find no merit in this

submission.

24. It was also requested by the learned senior counsel

for the private respondents that if this Court is in disagreement

with the view taken by the Tribunal, the matter may be

referred to a larger Bench. We find no good ground to refer the

matter to a larger Bench since we find no good reason to differ

with the view taken by this Court in the case of Joginder Lal

Sawhney(supra), to the effect that the question as to whether

the Stenographers should be allowed lateral entry in the cadre

of Section Officers in CSS or not was an administrative

decision. We, therefore, are of the view that it is for the

Government to consider the rival claims made by the members

of both the services, in the backdrop of other relevant facts and

circumstances, including the stagnation, if any, still persisting

amongst the Stenographers, the extent of stagnation amongst

the Assistants, availability of ACP Scheme to both the cadres

and their respective aspirations and take an appropriate

decision in the matter. But, as far as the impugned orders

passed by the Tribunal are concerned, we are of the view that

these being contrary to the decision of this Court in the case of

Joginder Lal Sawhney(supra) cannot be allowed to stand.

25. Another reason why the impugned order dated

25.5.2007 needs to be set aside is that a Division Bench of this

Court, while deciding WP.(C) 23891-94/2005 on 2.4.2006

specifically directed that if it was found by the Tribunal that

the order passed by it on 11th November, 2005 was against and

contrary to the decision of this Court in the case of Joginder

Lal Sawhney(supra) as also its own decision in

OA.No.1091/2004 Kailash Chander & Others Vs. Union of

India & Another decided on 26.7.2005, the mater shall be

referred by the Tribunal to the larger Bench, wherein all the

pleas arising out of the disputes between the parties shall be

urged and decided by the Tribunal. Despite this specific

direction, the Division Bench of the Tribunal which considered

the applications for recall/review of the order dated 11 th

November 2005, did not refer the matter to a larger Bench.

The impugned order passed by the Tribunal, therefore, need to

be set aside.

26. The learned senior counsel, appearing for the private

respondents, has referred to the decision of the Supreme Court

in Satyawati Sharma(Dead) by LRs. Vs. Union of India &

Others : (2008) 5 SCC 287, where it was observed that the

legislation which may be quite reasonable and rationale at the

time of its enactment may with the lapse of time and/or due to

change of circumstances become arbitrary, unreasonable and

violative of the doctrine of equality and even if the validity of

such a legislation may have been upheld at a given point of

time, the Court may, in subsequent litigation, strike down the

same if it is found that the rationale of classification has

become non-existent.

He has next referred to Malpe Vishwanath Acharya

& Others Vs. State of Maharashtra & Another : (1998) 2 SCC

1, where the Supreme Court observed that a statute which,

when it enacted was justified, may, with the passage of time

become arbitrary and unreasonable, with the change in

circumstances. He has also referred to Motor General

Traders & Another Vs. State of Andhra Pradesh & Others :

(1984) 1 SCC 222, where it was observed that once a non

discriminatory piece of legislation may in the course of time

become discriminatory and be exposed to successful challenge

on the ground that it is violative of the Article 14 of the

Constitution. None of these judgments is a authority for the

proposition that a Division Bench of the Central Administrative

Tribunal, while considering the vires of a Regulations, could

have struck it down when a Division Bench of the jurisdictional

High Court had upheld the vires of the very same Regulation

and another Division Bench of the Court had specifically

directed that if the Tribunal found that its earlier order dated

11th November, 2005 was against and contrary to that decision

and its own earlier decision on the same subject matter, the

matter shall be referred by the Tribunal to its larger Bench for

decision.

27. For the reasons given in the preceding paragraphs,

the writ petition is allowed and the impugned order dated

25.5.2007 passed by the Central Administrative Tribunal in OA

No.145/06 read with 669/06 as also its earlier order dated

11.11.2005 passed in OA No.1435/05 are hereby set aside.

We, however, make it clear that the order passed by us in this

petition will not come in the way of the Government making

such amendment, if any, as it may deem appropriate to make,

in CSS Rules, 1962 and/or in Central Secretariat Services

Section Officers Grade/Stenographers Grade „B‟ (Limited

Departmental Competitive Examination) Regulations, 1964.

The writ petition and CMs stand disposed of. There shall be no

order as to costs.

(V.K. JAIN) JUDGE

(A.K. SIKRI) JUDGE MAY 26, 2010 sn/bg/rs