Partly allowed

Bharath Sanchar Nigam Ltd. v. M. S. Hunshikatti

Karnataka HC22 Mar 2021WP/15424/2017

Case brief

AI extract

What is this about?

The court held that one respondent claiming review of 2002 results was barred by res judicata and prospective overruling principles, while allowing other similarly situated respondents to get their Screening Test results reviewed under pre-1997 rules for consequential promotions.

What did the court decide?

Impugned order set aside for Respondent No.1; upheld for Respondents 2 to 5, directing review of results under pre-1997 rules.

Bharath Sanchar Nigam Ltd. Vs M. S… — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE P.N.DESAI

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W.P.No.15424/2017 (S – CAT)

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BETWEEN :

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1 . BHARAT SANCHAR NIGAM LTD., BY ITS CHAIRMAN & MANAGING DIRECTOR, BHARAT SANCHAR BHAWAN, H.C.MATHUR LANE, JANPATH, NEW DELHI-110 001.

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2 . THE CHIEF GENERAL MANAGER KARNATAKA TELECOM CIRCLE, BHARAT SANCHAR NIGAM LTD., NO.1, SWAMY VIVEKANANDA ROAD, HALASURU, BANGALORE-560 008. ...PETITIONERS

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(BY SRI VISHNU BHAT, ADV.)

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AND :

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1 . M.S.HUNSHIKATTI S/O SHETTEPPA, AGED ABOUT 53 YEARS, OCC: TELECOM TECHNICAL ASSISTANT (TTA), OFC STATION, O/O SDE OFC MNTC, BAILHONGAL, UNDER DIVISIONAL ENGINEER TM STR, BELGAUM DIVISION-591143.

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2 .	SRI V.B.BINKADAKATTI S/O SRI BHIMAPPA, AGED ABOUT 51 YEARS, OCC: TTA, O/O SDE OCB LOCAL EXCHANGE, PINTO ROAD, HUBLI-580 020.
3 .	SRI A.D.NAGARAJAPPA S/O S.KARIYAPPA, AGED ABOUT 51 YEARS, OCC: TTA, O/O SUB DIVISIONAL ENGINEER TELECOM, SAGAR, SHIVAMOGGA DISTRICT-577 401.
4 .	SRI TUKARAM DANDEKAR N., S/O LATE NARASING RAO, AGED ABOUT 56 YEARS, OCC: TTA, O/O SUB DIVISIONAL ENGINEER C-DOT, CHITRADURGA, UNDER GM TELECOM, DAVANAGERE-571193.
5 .	SRI JAYACHANDRA K., S/O LATE KENCHAIAH, AGED ABOUT 56 YEARS, OCC: TTA, SUB DIVISIONAL OFFICER PHONES, CHIKKAMAGALUR, UNDER GM TELECOM, CHIKKAMAGALUR-577 101.
6 .	UNION OF INDIA REP BY ITS SECRETARY, TO THE MINISTRY OF COMMUNICATIONS, 20, ASHOKA ROAD, NEW DELHI-110 001.
7 .	DEPARTMENT OF TELECOMMUNICATIONS TO BE REP. BY ITS SECRETARY, NO.20, ASHOKA ROAD, NEW DELHI-110 001.
8 .	THE SECRETARY DEPARTMENT OF PERSONNEL & TRAINING, NORTH BLOCK, LOK NAYAK BHAWAN, NEW DELHI-110 001. …RESPONDENTS
	(BY SRI P.A.KULKARNI, ADV. FOR R-1 TO R-5; SRI B.PRAMOD, CGC. FOR R-6 TO R-8.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER OF THE HON’BLE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH DATED 08.09.2016 IN O.A.No.170/01560-1564/2015 AS PER ANNEXURE-C AS THE SAME IS UNJUST, ARBITRARY AND WITHOUT AUTHORITY OF LAW AND CONSEQUENTLY DISMISS THE O.A.No.170/015601564/2015.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 03.03.2021, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, S. SUJATHA, J ., PASSED THE FOLLOWING:

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O R D E R

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The petitioners have filed the present petition calling in question the correctness and legality of the order of the Central Administrative Tribunal, Bengaluru Bench (‘Tribunal’ for short) dated 08.09.2016 passed in O.A.No.170/01560-1564/2015, whereby the Tribunal

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has allowed the application filed by the respondent Nos.1 to 5 herein, directing the petitioners herein to take up the review of the results of the applicants in the Screening Test held on 27.02.2000 in terms of the guidelines/rules prevailing prior to 22.07.1997 and consider their promotion accordingly and in case the applicants are found entitled to the benefit of

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promotional cadre on review of the results, the actual monetary benefit shall be made available to them only from three years preceding to the date of filing of the original applications.

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The facts relevant for the purpose of present case are that the respondent Nos.1 to 5 herein belonging to the SC category had appeared in the Second Screening Test for promotion to the post of Junior Telecom Officers (JTOs) that was held on 27.02.2000. The result of the said examination was announced on 05.09.2000. They were not qualified in the said examination having secured less than 40% marks and accordingly no benefit of lower qualifying marks was extended due to a ban order on the same from 22.07.1997 to 03.10.2000. The candidates who obtained minimum qualifying marks of 40% were selected denying the relaxation/review to SC/ST candidates. Being aggrieved by the same, the

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respondent No.1 herein along with some other

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candidates had approached the Tribunal in O.A.Nos.323 and 329 to 331/2001 inter alia seeking direction to extend the benefit of review of the result giving relaxation standard in terms of the instructions dated 04.05.1981 and 03.10.2000. The said applications came to be allowed vide order dated 23.03.2001, against which the petitioners herein had preferred W.P.Nos.19694/2001 and 19725-19727/2001. This Hon’ble Court by order dated 13.11.2002 allowed the writ petitions setting aside the order of the Tribunal holding that the order dated 03.10.2000 would not be applicable to the respondents therein who took the Screening Test on 27.02.2000 and who had failed as per the results declared and notified on 05.09.2000. The respondent Nos.1 to 5 herein instituted O.A.Nos.170/01560-1564/2015 seeking direction to

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give relaxation based on the subsequent decision of the Hon’ble Apex Court in the case of Rohtas Bhankhar

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and others vs. Union of India and another¹ . The Tribunal allowed the applications and directed the petitioners to take up the review of the results of the Screening Test held on 27.02.2000. Being aggrieved, the petitioners have preferred the present writ petition.

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Learned counsel for the petitioners vehemently argued that the Tribunal grossly erred in directing the petitioners to review the result of the Screening Test conducted in the year 2000 and giving promotion accordingly without considering the effect of the same which would result in unsettlement of the issue which was settled long back in the year 2000. The respondents cannot seek for the review of the results after lapse of 15 years. Such review would result in anomalies disturbing the entire set of employees and would open a pandora box. Learned counsel in support of his contentions has placed reliance on the following judgments:-

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1 (2014) 8 SCC 872.

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1. M.A. Murthy vs. State of Karnataka and others² ;

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2. Kailash Chand Sharma vs. State of Rajasthan and others³ ;

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3. Kalinga Mining Corporation vs. Union of India and others⁴ ;

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4. S. Vinod Kumar and another vs. Union of India and others⁵ ;

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5. Superintending Engineer, Public Health, U.T. Chandigarh and others vs. Kuldeep Singh and others⁶ ;

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6. Haridas Parsedia vs. Urmila Shakya and others⁷ ;

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7. M. Nagaraj and others vs. Union of India and others⁸ ;

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Rohtas Bhankhar’s case supra.

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Learned counsel for the respondent Nos.1 to

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5 placing reliance on the judgment of the Hon’ble Apex Court in Rohtas Bhankhar¹ , argued that the said

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2 2003 SCC (L&S) 1076

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3 2002 SCC (L&S) 935

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4 (2013) 5 SCC 252

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5 (1996) 6 SCC 580

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6 (1997) 9 SCC 199

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7 (2000) 1 SCC 81

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8 (2006) 8 SCC 212

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judgment delivered on 15^th July, 2014 has given the cause of action for the respondent Nos.1 to 5 to prefer

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the applications seeking similar reliefs. It was submitted that para Nos.9 and 10 of the said judgment would be the answer to the arguments advanced by the learned counsel for the petitioners. The 1997 Official Memorandum was the basis for denying the relaxation to the respondent Nos.1 to 5 herein – SC candidates. The said 1997 Official Memorandum was issued relying on the judgment of the Hon’ble Apex Court in S. Vinod Kumar⁵ . The constitution bench of the Hon’ble Apex

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Court has declared S. Vinod Kumar⁵ , is not a good law and resultantly the 1997 Official Memorandum is illegal. Further, Union of India and others who are respondents therein were directed to modify the results in the Section Officers/Stenographers (Grade – B/Grade – I) Limited Departmental Competitive Examination, 1996 by providing for reservation and extend all consequential reliefs to the appellants, if not

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granted so far. In view of the said ruling of the Hon’ble Apex Court, the Tribunal has rightly directed the petitioners to review the results of the respondent Nos.1 to 5 herein, in the Screening Test held on 27.02.2000 in terms of the rules prevailing prior to 22.07.1997 and consider their promotion accordingly. The decision of the Tribunal cannot be held to be unjustifiable which is in conformity with the law laid down by the Hon’ble Apex Court. It was further argued that the judgments cited by the petitioners relates to the prospective overruling. In the absence of any such observations made by the Hon’ble Apex Court in Rohtas Bhankhar¹ , the said doctrine of prospective ruling cannot be made applicable to the facts of present case.

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We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.

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The main controversy relates to the

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applicability of the law laid by the Hon’ble Apex Court in Rohtas Bhankhar¹ to the facts of the present case. It is not in dispute that in compliance with the Hon’ble Apex Court judgment in S. Vinod Kumar⁵ , the Central Government decided to relax the standards in the case of SC/ST candidates in Departmental Competitive Examination by issuing Official Memorandum dated 22.07.1997 whereby the instructions contained in the 1970 Official Memorandum which remained operative for about 17 years were withdrawn. The Hon’ble Apex

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Court in Indra Sawhney vs. Union of India⁹ has laid down that there cannot be dilution of standards in matters of promotion. In S. Vinod Kumar⁵ , the Hon’ble Apex Court relying upon Indra Sawhney⁹ , held that the provision for lower qualifying marks/standard of evaluation was not permissible in Article 16(4) of the Constitution of India. Article 16(4-A) was brought into

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9 1992 Supp (3) SCC 217

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the Constitution by the Constitution (Seventy-seventh Amendment) Act, 1995. The constitutional validity of the said Article was subjected to judicial scrutiny before the constitution bench in M. Nagaraj⁸ . By the Constitution (Eighty – second Amendment) Act, 2000, a proviso has been appended to Article 335 of the Constitution with effect from 08.09.2000 providing that nothing in Article 335 shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxing in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State. The constitutional validity of the Constitution (Seventyseventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001 were

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upheld subject to the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. Though the State is not bound to make reservation for SCs/STs in matters of promotions, however, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. However, such reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. Thus, approving the Kuldeep Singh⁶ , the Hon’ble Apex Court in Rohtas Bhankhar¹ , directed the respondents therein to modify the results in the Section Officers/Stenographers (Grade-B/Grade-I) Limited Departmental Competitive Examination, 1996

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by providing for reservation and extend all

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consequential reliefs thereon.

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In the present case, the respondent No.1

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along with other SC/ST candidates had approached the Tribunal in O.A.Nos.323/2001 and connected matters challenging the result of the Screening Test published on 05.09.2000 relating to the promotion to the post of JTOs. The said applications were allowed directing the petitioners herein and in particular petitioner No.2 i.e., Chief General Manager, Karnataka Telecom Circle, to review the results of the applicants held on 27.02.2000 and to extend the promotional benefits if they are found to be qualified in terms of the departmental instructions effect of which has been restored by the order dated 03.10.2000. Aggrieved by the same, the petitioners had preferred W.P.Nos.19694/2001 and 19725-19727/2001 before this Court. The Co-ordinate bench of this Court by order dated 13.11.2002 has allowed the petitions

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setting aside the order of the Tribunal passed in O.A.No.323/2001 and connected matters, dismissing the said applications, which has reached finality as far as the respondents therein are concerned. Pursuant to the judgment of the Hon’ble Apex Court in Rohtas Bhankhar¹ , the respondent No.1 along with other respondents herein has preferred again application in O.A.Nos.170/01560-1564/2015 which has culminated in the order impugned herein.

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It is well settled legal principle that law

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declared by the Hon’ble Apex Court enunciating the principle of law is applicable to all cases irrespective of stage of pendency thereon since any such declaration operates from inception as held by the Hon’ble Apex Court in M.A. Murthy² . Prospective overruling is a part of principles of constitutional canon of interpretation and can be resorted to by the Hon’ble Court while superseding the law declared by it earlier. It is a device

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innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest declaring the law applicable only to future cases. It is for the Hon’ble Apex Court to indicate as to whether the said decision would operate prospectively. There shall be no prospective overruling, unless it is so indicated specifically in the particular decision.

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9. In Kailash Chand Sharma³ , the Hon’ble

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Apex Court has held thus:-

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“39. Whether the judgment should be given prospective application so as not to affect the appointments made prior to the date of the judgment i.e. 18.11.1999 is one question that has been debated before us in the background of direction given by the High Court. Counsel appearing for the original writ petitioners who succeeded in principle before the High Court contended that there is no warrant to invoke the

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theory of prospective overruling to validate unconstitutional appointments especially when such appointments were made during the pendency of the writ petitions and some of the appointments were made after the matter was referred to the full Bench. At any rate, it is contended that the appointments orders issued after the first full Bench judgment which was rendered on 21.10.1999 should not be validated. On the other hand, it is contended by the learned counsel appearing for the successful candidates who have been either appointed or yet to receive appointment orders that there is every justification for the prospective application of the judgment. While so contending, the learned counsel find fault with the direction of the High Court in so far as it impliedly restrains further appointments subsequent to the date of the judgment. In this connection, it is pointed out that the selections were finalized long prior to the judgment either of the first full Bench or of the second full Bench, and if there was delay in issuing appointment orders either on account of the stay order or administrative delays, the candidates selected should not be placed at a disadvantageous position when compared to the candidates appointed earlier. In other words,

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these parties contend that the creation of a cut-off date with reference to the appointments already made and yet to be made is unjustified and it would have been in the fitness of things if all the selected candidates are excluded from the rigour of the judgment as a one time measure instead of creating two classes amongst them.

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40. Arguments were addressed before us on the contours and limitations of the doctrine of prospective overruling applied in our country for the first time in Golak Nath Vs. State of Punjab (1967 (2) SCR 762) in the context of invalidity of certain constitutional amendments and extended gradually to the laws found unconstitutional or even to the interpretation of ordinary statutes. The sum and substance of this innovative principle is that when the Court finds or lays down the correct law in the process of which the prevalent understanding of the law undergoes a change, the Court, on considerations of justice and fair deal, restricts the operation of the new found law to the future so that its impact does not fall on the past transactions. The doctrine recognises the discretion of the Court to prescribe the limits of retroactivity of the law declared by it. It is a great harmonizing principle equipping the

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Court with the power to mould the relief to meet the ends of justice. Justification for invoking the doctrine was also found in Articles 141 and 142 which as pointed out in Golak Nath's case are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. In the aftermath of Golak Nath case, we find quite an illuminating and analytical discussion of the doctrine by Sawant, J. in Managing Director Vs. B. Karunakar (1993 (4) SCC 727). The learned Judge prefaced the discussion with the following enunciation:-

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"It is now well settled that the courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the end of justice."

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xxxxxxx

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46. Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the competing claims in the light of acceptance of prospective overruling in principle, we consider it just and proper to confine the relief only to the petitioners who moved the High Court and to

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make appointments made on or after 18.11.1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct :

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1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis a vis the candidates appointed on or after 18.11.99 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 18.11.1999.

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2. The appointments made upto 17.11.1999 need not be reopened and reconsidered in the light of the law laid down in this judgment.

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3. Writ Petition No.542/2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time.

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47. Before parting, we must say that we have moulded the relief as above on a consideration of special facts and circumstances of this case acting within the frame-work of powers vested in this Court under Article 142 of the Constitution. In so far as the relief has been granted or modified in the manner aforesaid, this judgment may not be treated as a binding precedent in any case that may arise in future.”

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But no such observations/directions are made/issued by the Hon’ble Apex Court in Rohtas

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Bhankhar¹ .

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In the absence of such directions, the theory of prospective ruling cannot be made applicable to the present set of facts as far as the applicants/respondent Nos.2 to 5 are concerned. But as far as respondent No.1 is concerned, the judgment rendered by this Court in W.P.Nos.19694/2001 and 19725-19727/2001 having reached finality, filing of repetitive applications subsequent to the judgment of the Hon’ble Apex Court amounts to seeking of review of the results of the

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Screening Test held in the year 2000 would not be maintainable and the same is hit by the principles of res judicata . Even filing of a review petition based on the subsequent order of the Hon’ble Apex Court would not be maintainable as held by the Hon’ble Apex Court in the case of Haridas Das vs. Smt. Usha Rani Banik and others¹⁰ , the relevant paragraphs of which is quoted hereunder:-

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“13. In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions

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10 AIR 2006 SC 1634

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are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection.”

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If no review is maintainable, filing of fresh application would certainly not maintainable. Hence, respondent No.1 having suffered an order as far back as in 2002 which has reached finality, now cannot seek for the review of the result of the Screening Test at this

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juncture. If such repetitive claim is entertained, it will

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open Pandora box unsettling the settled issues.

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As far as respondent Nos.2 to 5 are

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concerned, it is beneficial to refer to the order of the Hon’ble High Court of Madhya Pradesh at Jabalpur in the case of R.D. Choudhary and others vs. Union of

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India and others (W.P.10340/2013,

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D.D.06.08.2014) , wherein it has been held thus:-

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“Once, the Supreme Court has overruled the law laid down in the case of S. Vinod Kumar (supra) and subsequently the circular issued on 22.07.97 so also its subsequent implementation, now the respondents are required to take action for considering the case of the petitioners for grant of promotion based on the relaxation as per the circular Annexure A-3 dated 5.06.97 and pass consequential order keeping in view the directions issued by the Supreme Court.”

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This has been confirmed by the Hon’ble Apex

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Court in Union of India and others vs. R.D.

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Choudhary and others (Special Leave to Appeal (C) CC No.13292/2015.

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The Central Administrative Tribunal,

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Cuttack Bench in O.A.No.716/2016 and connected matters (Chandra Mohan Soren and others vs. Union of India and others, D.D. 30.07.2019) has followed the order of Hon’ble High Court of Madhya Pradesh at Jabalpur in the case of R.D. Choudhary and others

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vs. Union of India and others (W.P.10340/2013, D.D.06.08.2014) and the judgment of Hon’ble Apex Court in Rohtas Bhankhar¹ holding that the cause of action arose to the applicants therein subsequent to passing of the judgment. The said order appears to have attained finality.

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The Hon’ble Apex Court in the case of State

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of Uttar Pradesh and others vs Arvind Kumar

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Srivastava and others¹¹ has held thus:-

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11 (2015) 1 SCC 347

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“(i) The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by the Supreme Court form time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the court earlier, they are not to be treated differently.

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(ii) However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees

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cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

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(iii) However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like. On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended

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to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.”

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The Tribunal has applied the aforesaid judgment in granting the reliefs which cannot be faulted with except in the case of respondent No.1 for the reasons stated in paragraph Nos.9 to 11, supra.

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In view of the aforesaid, as far as respondent Nos.2 to 5 are concerned, the order of the Tribunal is upheld inasmuch as directing the petitioners to take up review of the results in the Screening Test held on 27.02.2000 in terms of the guidelines/rules prevailing prior to 22.07.1997 and consider their promotion accordingly. In case the applicants/respondent Nos.2 to 5 are found entitled to the benefit of promotional cadre on review of the results, the actual monetary benefits shall be made available to them only from three years preceding to the date of filing of the original applications.

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