Sarat Chandra Mishra and Ors. v. State of Orlssa and Ors.
S.B. SINHA, J. The appellants and the private respondents herein were
appointed as Lower Division Assistants/Junior Assistants between the period
28.09.1966 and 05.09.1973. Recruitment process was undertaken by the Orissa
Public Service Commission in terms of the Orissa Ministerial Service (Method
of Recruitment & Conditions of Service of Lower Division Assistant in the
C Office of the Department of Secretariat) Rules, 1951 (for short, the OMS
Rules, 1951 '). After their appointments, the appointees were recruited in
various departments. With a view to avail promotional opportunities, the
appointees were required to pass an examination known as 'STC Examination'.
All the employees admitted were promoted after they had passed the said
D examination. The private respondents passed the examination before the
appellants herein and as such they were promoted earlier. On or about
01.01.1984, a Gradation List was published wherein the respondents were
shown senior to the appellants herein. The appellants contended that having
regard to the fact that seniority of the ministerial officers was to be reckoned
on the basis of ranks obtained by them in PSC examination; only because
E some employees working in some departments were sent for training earlier
than the others which enabled them to pass the STC examination before
them, the respondents could not have been treated to be senior by reason of
such fortuitous circumstances.
Representations were made by the appellants before the State of Orissa.
F The State issued a circular dated 21.02. 1989 purporting to set up new
principles for fixing seniority in the cadre of Lower Grade Assistants in the
higher grade and consequently a corrected Gradation List was published on
22.08.1990.
G The legality and validity of the said circular dated 21.02.1989 and the
Gradation List dated 22.08.1990 came to be questioned by the respondents
herein before the Orissa Administrative Tribunal (for short. 'the Tribunal')
which was marked as O.A. No.1200 of 1990. Some of the appellants herein
also filed an original application, which was marked as O.A. No.90 of 1990,
praying for a direction that the common 1984 Gradation List be revised and
H consequently the 1990 Gradation List which was published pursuant to the
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SARAT CHANDRA MISHRA v. STATE OF OR!SSA [SINHA . .I.] 119
circular letter dated 21.02.1989 be upheld. Both the aforementioned original A
applications were disposed of by a judgment and order dated 09.03.1992,
holding :
" ... We, therefore, have no hesitation in hol~ing that the gradation list
drawn up as per Home Department letter No. I 0535/F dated 21.2.1989
and consequently refixation of seniority in the Home Department's B
letter in Memo No.24961/CC dated 22.5.1990 and by Home ••
Department's Memo No.56814 dated 22.8.1990 are illegal and hereby
quashed. All the future promotions above the rank of Senior Assistants
and Section Officer, Level-II shall be governed by the gradation list
made in the year, 1984 and the promotions given effect to accordingly. C
The principle decided shall govern all the cases i.e. 0.A. 1200/90,
C.A. 1037/90, OA 817/90, OA 783/90, OA 516/90 and OA 90190.
The prayer in 0.A. 90190 is dismissed relating to quashing of the
Gradation list of 1984. The other five petitions are allowed and our
order will govern the seniority of all Senior Assistants and Section D
Officer Level II..."
The State of Orissa and the appellants herein did not question the
correctness of the said order. Only one Suresh Kumar Chhotray filed an
application for grant of special leave. to appeal in this Court questioning the
correctness of the said judgment and order dated 09.03.1992 passed by the E
Tribunal. During the pendency of the special leave petition, the State of
Orissa issued a circular letter purported to be in terms of the said judgment
and order dated 09.03.1992, stating :
"In pursuant of the decisions of the Orissa Administrative Tribunal
on 9.3.1992 in O.A. No.1200/90 the Gradation List of Senior Assistants F
issued in Home Department Memo No.24961 dated 22.5.1990 and
No.56814 dated 22.8.1990 is hereby superseded and the Gradation
List of Senior Assistants circulated in Home Department Memo No.
3 dated 1.1.1984 and Memo No.53218 (40)/CC dated 27.9.1984 is
hereby restored. Home Department letter No.10535/CC dated 21.2.89 G
stands withdrawn."
· >-. The application for grant of special leave filed by the aforementioned
Suresh Kumar Chhotray came up for hearing before this Court on 05.01.1993.
In view of the aforementioned Government Order dated 12.08.1992, this
Court opined that the said special leave petition had become infructuous on H
120 SUPREME COURT REPORTS [2006) I S.C.R.
A the premise that the State intended to issue the said circular letter dated
12.08.1992 as a matter of policy independent of the order of the Tribunal. It
was, however, observed :
"We may, therefore, observe that the right, if any, of the petitioner
and other similarly situate to assail any action of the Government
B based on any distinct cause of action shall not be treated as conclusive
by the dismissal of this Special Leave Petition as infructuous. The
petitioner would be free to pursue such remedy as may be available
to him in that behalf. The Special Leave Petition is dismissed as
infurctuous."
C Relying on or on the basis of the said purported observations made by
this Court in the aforementioned Special Leave Petition (Civil) No. I 0513 of
1992, original applications were filed by the appellants before the Tribunal.
By its judgment and order, the Tribunal held that having regard to its earlier
decision and consequent dismissal of the special leave petition by this Court,
D the issue could not be reopened, particularly, when the applicants therein had
not been able to show any distinct cause of action to agitate their case afresh
other than stressing hard for maintaining their seniority as per the guidelines
dated 21.02.1989 on the basis of which gradation list of the year 1990 was
prepared.
E Aggrieved by and dissatisfied therewith the Appellants filed a writ
petition before the Orissa High Court which was marked as 0.J.C. No.14151
of 1999 and by an order dated 20.09.200 I, the said writ petition was dismissed.
In its judgment the High Court opined :
"It is submitted by Dr. Misra appearing for the petitioners that
they are entitled to raise the questions in view of the liberty given by
the Supreme Court. We are unable to accept the said submission in
as much as the reliefs prayed for by the petitioners, if granted, would
amount to reversing the earlier judgment and order of the Tribunal
even though special leave petition against the same had been dismi:;sed
by the Supreme Court. We do not find any illegality or infirmity in
the impugned order passed by the Full Bench of the Tribunal and as
such there is no question of interference with the same."
Mr. Raju Ramachandran, the learned Senior Counsel appearing on behalf
of the appellants, submitted that in view of the fact that the special leave
H petition filed against the judgment and order dated 09.03.1992 passed by the
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SARA T CHANDRA MISHRA v. STA TE OF ORI SSA [SINHA. J.] 121
~:.. Tribunal had not been disposed of on merit and as thereby liberty had been A
granted to the petitioner therein to question the said order dated 12.08.1992
afresh, the Tribunal and consequently the High Court committed a manifest
error in not entertaining the original application and the writ petition,
respectively.
' ,
The learned counsel would submit that it is a fit case where this Court B
should exercise its discretionary jurisdiction under Article 142 of the
Constitution of India so as to enable the appellants to obtain at least the
monetary benefits as most of them have since retired.
We are not persuaded to accept the said submission of the learned
counsel. Two sets of applications were filed before the Tribunal at the first C
instance; one questioning the legality of the Common Gradation List of the
year 01.01.1984; and another questioning the legality of the circular letter
dated 21.02.1989 and consequent publication of the Gradation List dated
22.08.1990. Both the sets of applications were heard together. Whereas the
original applications filed by the respondents were allowed, those filed by D
some of the Appellants were dismissed. One special leave petition was filed
against that part of the judgment and order of the Tribunal, whereby only
O.A. No.90 of 1990 was dismissed. The State of Orissa or for that matter, the
appellants herein did not file any special leave petition before this Court
questioning the said order except one Suresh Kumar Chhotray. The judgment
and order of the Tribunal dated 09.03.1992 passed in O.A. No. 1200 of 1990, E
thus, attained finality. The principle of res judicata' would, therefore, apply
in the instant case. The applicability of the principle of res judicata in a
proceeding before the Tribunal is not disputed. It is also not a case where the
jurisdiction of the Tribunal is in question.
This Court while passing its order dated 05.Ql.1993 did not and could
not have dispensed with the applicability of the priAciple of res judicata, as
the right of the respondents derived from the judgment and order of the
Tribunal dated 09.03.1992 could not have been taken away. In any event, the
decision of the Tribunal in O.A. No.90 of 1990 wherein, as noticed supra,
some of the appellants had questioned the validity or otherwise of the Gradation G
List as contained in Home Department's letter dated 27.09.1984 attained
finality.
The judgment and order passed in the said O.A. No. 90 of 1990 would
indisputably be binding on the State and the appellants herein and, thus, it is
not open to them to raise the said question once again. Furthermore the H
122 SL:PREME COURT REPORTS [2006] I S.C.R.
A seniority list which was revised following the Home Department's letter dated
21.02.1989 and consequent fixation of seniority in terms of Home
Department's letters dated 22.05.1990 and 22.08.1990 were declared to be
illegal.
It is in the aforementioned backdrop, the order of this Court dated
B O'i.01.1993 is required to be construed. The judgment of a court, it is well
settled, cannot be read as a statute. While construing a judgment, it may be
presumed that the same has been rendered in accordance with law.
In Ramesh Chand Daga v. Rameshwari Bai, [2005] 4 SCC 772, this
Court held :
"A judgment, as is well known, is not to be read as a statute. A
judgment, it is trite, must be construed upon reading the same as a
whole. For the said purpose the attendant circumstances may also be
taken into consideration. (Islamic Academy of Education v. State of
Karnataka, Zee Telefilms Ltd. v. Union of India and P.S. Sathappan
v. Andhra Bank Ltd)"
In Gajraj Singh and Ors v. State of UP and Ors., [200 I] 5 SCC 762,
this Court held :
" ... A doubt arising from reading a judgment of the Court can be
resolved by assuming that the judgment was delivered consistently
with the provisions of law and therefore a course or procedure in
departure from or not in conformity with statutory provisions cannot
be said to have been intended or laid down by the Court unless it has
been so stated specifically."
The jurisdiction of this Court under Article 142 of the Constitution of
India is not meant to be exercised in a situation of this nature. Mr.
Ramachandran is not correct in .contending that the appellants did not get any
opportunity to canvass their case at all. They had such an opportunity before
the Tribunal. They, it will bear repetition to state, except one did not assail
G the findings of the Tribunal. The order of this Court dated 05.01.1993 must
be construed having regard to the entire factual and legal backdrop. It is no
doubt true that this Court refused to determine the matter on merit and came
to the opinion that the special leave petition had become infructuous in view
of the order of the State Government dated 12.08.1992, but the fact remains
H that even before this Court the said order of the Sate Government was not