Supreme Court of India
BHARAT SANCHAR NIGAM LTD.versusGHANSHYAM DASS AND ORS.
- Citation
- 2011 INSC 130
- Decided
- 17 February 2011
- Disposal
- Appeal(s) allowed
- Bench
- R V RAVEENDRAN
Holding
The CAT’s 1992 order applies only to the original applicants and cannot be extended to other employees; the 1995 circular governs promotions thereafter, so the respondents are not entitled to promotion on the basis of seniority prior to that date.
Summary
The case concerned promotion of Grade‑III officers to Grade‑IV in the Department of Telecommunications under the Biennial Cadre Review (BCR) Scheme. The Central Administrative Tribunal (CAT) had, in O.A. No.1455 of 1991, directed that promotions to the 10% posts in Grade‑IV be based on seniority in the basic cadre and ordered the Government to consider only the applicants in that proceeding. The respondents, who were not parties to that O.A., later filed separate CAT applications in 1997 seeking promotion on the same basis and the CAT allowed them, relying on the earlier order. The Supreme Court examined whether the benefits of the 1992 CAT order could be extended to non‑parties under the principle in K.I. Shephard, and whether the fresh circular dated 13‑December‑1995, which superseded earlier instructions, governed promotions thereafter. The Court held that the 1992 order was limited to the original applicants and did not extend to the respondents, and that the 1995 circular took effect only from its date, precluding any retroactive promotion rights. Consequently, the respondents were not entitled to promotion on the basis of seniority prior to 13‑December‑1995, and the High Court’s orders were set aside.
Issues considered
- Whether the CAT order dated 07‑07‑1992 in O.A. No.1455 of 1991 is binding on employees who were not parties to that proceeding.
- Whether the principle in K.I. Shephard v. Union of India applies to extend the benefits of that order to other similarly situated employees.
- Whether the circular dated 13‑December‑1995 supersedes the CAT order and governs promotions from Grade‑III to Grade‑IV.
- Whether the respondents are entitled to promotion to Grade‑IV on the basis of seniority in the basic cadre with effect prior to 13‑December‑1995.
Subjects
promotionseniorityBiennial Cadre ReviewCentral Administrative Tribunalservice lawcircularsupersessionseniority in basic cadregovernment orders
Judgment
A
[2011] 4 S.C.R. 380
BHARAT SANCHAR NIGAM LTD.
•
v.
GHANSHYAM DASS AND ORS.
(Civil Appeal No. 4369 of 2006)
FEBRUARY 17, 2011
B
[R.V. RAVEENDRAN, P. SATHASIVAM AND A.K.
PATNAIK, JJ.]
Service Law - Promotion - Department of
C Telecommunications - Four grades of employees viz. Basic
Grade, Grade II, Grade Ill and Grade IV - Biennial Cadre
Review (BCR Scheme) - Order dated 07.07.1992 passed by
Tribunal in O.A. No.1455 of 1991 filed by some Grade Ill
officers, whereby the Government was directed to consider the
D applicants in the 0.A. for promotion to Grade-IV on the basis
of seniority in the basic grade as per the BCR Scheme -
Order dated 07.07.1992 attained finality - Entitlement of
respondents to claim promotion to Grade-IV on the basis of
their seniority in the basic grade in terms of the order dated
E 07. 07. 1992 - Held: Not entitled - Respondents were not the
applicants in O.A. No.1455of1991 and there was no direction
to the Government to consider the respondents for promotion
to Grade-IV scale on the basis of seniority in the basic cadre
as per the BCR Scheme - The Tribunal had not directed in
F its order dated 07. 07. 1992 that the benefits of the order would
also be extended to those who had not approached the
Tribunal - Since the respondents preferred to sleep over their
rights and approached the Tribunal only in 1997, they cannot
get the benefit of the order dated 07.07.1992 and will only be
G entitled to the benefit of the circular dated 13.12.1995 which
\WBB in force in 1997 - Vide circular dated 13.12.1995 the
Government took a fresh decision in supersession of earlier
instructions that promotion to Grade-IV may be given from
amongr officials in Grade-Ill on the basis of their seniority in
H 380
• BHARAT SANCHAR NIGAM LTD. v. GHANSHYAM
DASS AND ORS.
381
the basic grade - Hence, the decision of the Government to A
make promotions to Grade-IV on the basis of their seniority
in the basic grade could take effect only from 13. 12. 1995 and
not from a prior date - Respondents cannot claim any
promotion to Grade-IV on the basis of their seniority in the
basic cadre with effect from any date prior to 13. 12. 1995. B
In the Department of Telecommunications of the
Government of India there were four Grades of
employees: Basic Grade Pay (Scale Rs.975-1660); Grade
II (Pay Scale Rs.1400-2300); Grade Ill (Pay Scale Rs.1600- C
2660) and Grade IV (Pay Scale Rs.2000-3200). By circular
dated 16.10.1990, the Government introduced a new
Scheme known as 'Biennial Cadre. Review' (BCR
Scheme) under which, those employees, who were on
regular service and had completed 26 years of
satisfactory service in the basic grades, if found suitable, D
were to be upgraded in the higher scale. The circular
dated 16.10.1990, however, limited such upgradation to
10% of the posts in the lower pay-scale.
Some officers of Grade Ill who were senior in the E
basic grade but had lost their seniority in Grade Ill
because of their later promotions and who were not
considered for upgradation to Grade IV under the BCR
Scheme filed O.A. No.1455 of 1991 before the Central
Administrative Tribunal. The Tribunal vide its order dated F
07.07.1992 directed that promotions of 10% posts in the
scale of Rs.2000-3200 (Grade IV) would have to be based
on seniority in the basic grade subject to fulfillment of
other conditions in the BCR Scheme and further directed
the Government to consider the applicants in the O.A. G
from due dates with consequential benefits. In the order
dated 07.07.1992, the Tribunal, however, observed that
employees who may be senior to the applicants in the
O.A. in the scale of Rs.1600-2660 (Grade Ill) and who may
have already been given the scale of Rs.2000-3200
H
382 SUPREME COURT REPORTS [2011] 4 S.C.R.
A (Grade IV) at the cost of those who were senior in the
basic grades by any different interpretation of the BCR
Scheme, may in the discretion of the Government instead
of being reverted, be considered for promotion to scale
of Rs.2000-3200 (Grade IV) by suitable adjustments in the
B number of posts by upgradation as necessary.
The Government challenged the order dated
07.07.1992 of the Tribunal in Civil Appeal No.3201 of 1993
but by order dated 09.09.1993 this Court dismissed the
appeal. Pursuant thereto, supernumerary posts were
C created in the scale of Rs.2000-3200 (Grade IV) to adjust
the employees who had already been given the scale of
Rs.2000-3200 on the basis of their seniority in the scale
of Rs.1600-2660 (Grade Ill). Moreover, after a review of the
procedure for promotions from Grade Ill to Grade IV,. the
D Government issued a fresh circular dated 13.12.1995
saying that promotion to Grade-IV may be given from
amongst officials in Grade-Ill on the basis of their
seniority in the basic grade, subject to fitness determined
by the DPC and subject to the ceiling of 10% of the posts
E in Grade-Ill (scale Rs.1600-2660) as provided in the BCR
Scheme.
Subsequently, placing reliance on the order dated
07.07.1992 of the Tribunal in O.A.No. 1455 of 1991 as
F affirmed by this Court, the respondents filed O.As before
the Tribunal contending that employees who were juniors
to them in the basic grade but otherwise senior in Grade-
111, had been given promotion to Grade-IV earlier to the
dates when the respondents were given such promotion.
The Tribunal allowed the O.As. and directed the
G
Government to consider promoting them to Grade IV with
effect from the dates their immediate juniors in the basic
grade seniority were so promoted subject to their
otherwise being found fit for promotion on such dates
with consequential benefits including seniority and
H arrears of pay and allowances and retiral benefits in the
• BHARAT SANCHAR NIGAM LTD. v. GHANSHYAM
DASS AND ORS.
383
case of those who had retired on superannuation. The A
Government filed writ petitions in the High Court which
held that the Tribunal, while allowing the applications, had
directed the Government to follow its own circular dated
13.12.1995 and accordingly dismissed the writ petitions.
Hence the instant appeals. B
Allowing the appeals, the Court
HELD:1. It is clear from the directions in the aforesaid
order dated 07.07.1992 in O.A. No. 1455 of 1991 that the
Government was directed to consider only the applicants c •'
in the O.A. for promotion to 10% posts in the scale
Rs.2000-3200 (Grade-IV) on the basis of seniority in the
basic cadres from the due dates with. consequential
benefits. The respondents herein were not the applicants
in O.A. No.1455of1991 and there was no direction to the D
Government to consider the respondents for promotion
to Grade-IV scale on the basis of seniority in the basic
cadre as per the BCR Scheme. Hence, the respondents
were not entitled to claim any promotion to Grade-IV on
the basis of their seniority in the basic grade on the basis E
of the order dated 07.07.1992 of the Tribunal in O.A.
No.1455 of 1991 as affirmed by the order dated
09.09.1993 of this Court in Civil Appeal No.3201 of 1993.
[Para 11) [394-C-F]
2. The Tribunal had not directed in its order dated F
07 .07 .1992 in O.A. No.1455 of 1991 that the benefits of the
order would also be extended to those who had not
approached the Tribunal. The principle laid down in K./.
Shephard's case that it is not necessary for every person
to approach the court for relief and it is the duty of the G
authority to extend the benefit of a concluded decision
in all similar cases without driving every affected person
to court to seek relief would apply only in the following
circumstances: a) where the order is made in a petition
filed in a representative capacity on behalf of all similarly H
384 SUPREME COURT REPORTS
:.
[2011] 4 S.C.R.
A situated employees; b) where the relief granted by the
court is a declaratory relief which is intended to apply to
all employees in a particular category, irrespective of
whether they are parties to the litigation or not; c) where
an order or rule of general application to employees is
B quashed without any condition or reservation that the
relief is restricted to the petitioners before the court; and
d) where the court expressly directs that the relief granted
should be extended to those who have not approached
the court. Where only the affected parties approach the
c court and relief is given to those parties, the fence-sitters
who did not approach the court cannot claim that such
relief should have been extended to them thereby
upsetting or interfering with the rights which had accrued
to others. Since the respondents preferred to sleep over
their rights and approached the Central Administrative
0
Tribunal only in 1997, they cannot get the benefit of the
order dated 07.07.1992 of the Tribunal in O.A. No.1455 of
1991 and will only be entitled to the benefit of the circular
dated 13.12.1995 which was in force in 1997. [Paras 12,
E 13, 14] [395-C-H; 396-8-C; 397-D]
K.I. Shephard and others v. Union of India and others
(1987) 4 sec 431 - held inapplicable.
Jagdish Lal and others v. State of Haryana and others
F (1997) 6 sec 538 - relied on.
Ajit Singh Januja v. State of Punjab (1996) 2 SCC 715;
Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684;
R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745 -
referred to.
G
3. Further, it is clear from the circular dated
13.12.1995 of the Government that after the order dated
07 .07 .1992 of the Tribunal in OA. N.o.1455 of 1991 was
affirmed by this Court in Civil Appeal No.3201 of 1993 on
H 09.09.1993, the Government undertook a review of the
• BHARAT SANCHAR NIGAM LTD. v. GHANSHYAM
DASS AND ORS.
385
existing procedure of promotion to Grade-IV and decided A
in supersession of earlier instructions that promotion to
Grade-IV may be given from amongst officials in Grade-
111 on the basis of their seniority in the basic grade. The
language of the circular dated 13.12.1995 makes it crystal
clear that the Government took a fresh decision in B
supersession of earlier instructions that promotion to
Grade-IV may be given from amongst officials in Grade-
111 on the basis of their seniority in the basic grade. Hence,
the decision of the Government to make promotions to
Grade-IV on the basis of their seniority in the basic grade c
could take effect only from 13.12.1995 and not from a
prior date and the respondents could not claim any
promotion to Grade-IV on the basis of their seniority in
the basic cadre with effect from any date prior to
13.12.1995. The Tribunal was, therefore, not right in
allowing O.As, directing the Government to consider
D I
promoting the applicants to Grade-IV with effect from the
dates their immediate juniors in the basic grade seniority
were so promoted subject to their being found fit with
consequential benefits of seniority as well as arrears of E
pay and allowance and of retiral benefits in the case of
those of the applicants in the O.As. who had retired on
superannuation. The High Court ought to have interfered
with the decision of the Tribunal. [Paras 16, 17] [398-D-E-
G-H; 399-A-D]
F
Case Law Reference:
(1987) 4 sec 431 held inapplicable Para 10,
12, 13
(1997) s sec 538 relied on Para 14 G
(1996) 2 sec 115 referred to Para 14
(1995) 6 sec 684 referred to Para 14
H..
386 SUPREME COURT REPORTS [20111 4 S.C.R. •
A (1995) 2 sec 745 referred to Para 14
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4369 of 2006.
From the Judgment & Order dated 22.5.2003 of the High
B Court of Delhi at New Delhi in C.W. No. 4555 of 2002.
WITH
C.A. No. 4370 of 2006.
C R.D. Agrawala, S.R. Singh, Pavan Kumar, Prithvi Pal,
Abhisth Kumar, Archana Singh, Pankaj Sharma, Sudershan
Rajan, P. Narasimhan, Debasis Mukerjee, Neeraj Kr. Sharma,
Vivek Sharma, Surya Kant, Rameshwar Prasad Goyal, T.N.
Bhat, Pankaj Gupta, Manoj K. Mishra, Pramod Kumar Yadav,
D S. Talukedar for the appearing parties.
The Judgment of the Court was delivered by
A. K. PATNAIK, J. 1. These two appeals are against two
separate but identical orders passed by a Division Bench of
E the High Court of Delhi on 22.05.2003 in C.W. No.4555 of 2002
and C.W. No.4556 of 2002.
2. The facts very briefly are that in the Department of
Telecommunications of the Government of India there are four
F Grades of employees and these are:
Basic Grade [Telegraph Assistant I Telegraphist] = Pay
Scale Rs.975-1660.
Grade II [Section Supervisor I Telegraph Master] = Pay
G Scale Rs.1400-2300.
Grade Ill [Senior Section Supervisor] = Pay Scale
Rs.1600-2660.
-H
• BHARAT SANCHAR NIGAM LTD. v. GHANSHYAM
DASS AND ORS. [A.K. PATNAIK, J.]
387
Grade IV [Chief Section Supervisor] =Pay Scale Rs.2000- A
3200.
3. Initially, promotions from one Grade to the higher grade
were made on the basis of seniority to the 2/3rd of the posts
and on the basis of departmental examination· to the 1/3rd of
8
the posts. With effect from 30.11.1983, the Government of India,
Ministry of Communications, Department of Telecommu-
nications (for short 'the Government') introduced One Time
Bound Promotion Scheme under which regular employees, who
had completed sixteen years of service in a grade, were placed C
in the next higher grade. Thereafter, by a circular dated
16.10.1990 the Government introduced a new Scheme known
as 'Biennial Cadre Review' (for short 'the BCR Scheme').
Under the BCR Scheme, those employees, who were on
regufar service as on 01.01.1990 and had completed 26 years
of satisfactory service in the basic grades, were to be screened D
by a duly constituted Committee to assess their performance
and determine their suitability for advancement and if they were
found suitable they were to be upgraded in the higher scale.
The circular dated 16.10.1990, however, limited such
upgradation to 10% of the posts in the lower pay-scale and the E
review of the cadres for the purpose of such upgradation was
to take place once in two years. The Government then issued
clarifications on some points in its letter dated 11.03.1991 on
the BCR Scheme. Point No.10 and the clarification thereon in
the letter dated 11.03.1991 are quoted hereunder:- F
"Point raised by the field unit Clarification
"10. Whether Officers already having pay scale of
Rs.1600-2600 will rank senior to Officials in the scale of
Rs.1400-2300 for the 10% quota (Rs.2000-3200) G
The seniority of officials is to be maintained with reference
to the basic cadres and functional promotional posts they hold
and not merely with reference to the pay scales."
H
388 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 4. Some officers of Grade Ill who were senior in the basic
grade but had lost their seniority in Grade Ill because of their
later promotions and who were not considered for upgradation
to Grade IV under the BCR Scheme, namely, Smt. Santosh
Kapoor and others, filed O.A. No.1455 of 1991 before the
B Central Administrative Tribunal. New Delhi, contending on the
basis of clarification on Point No 10 made in the letter dated
11.0.3.1991 that under the BCR Scheme, seniority in the basic
grade was to be counted for the purpose of upgradation on
completion of 26 years of service and this contention was
C resisted by the Government and other respondents in the O.A.
and the Tribunal in its order dated 07.07.1992 directed that
promotions of 10% posts in the scale of Rs.2000-3200 (Grade
IV) would have to be based on seniority in the basic grade
subject to fulfillment of other conditions in the BCR Scheme and
further directed the Government to consider the applicants in
D the O.A. from due dates with consequential benefits. In the order
dated 07.07.1992, the Tribunal, however, observed that
employees who may be senior to the applicants in the O.A. in
the scale of Rs.1600-2660 (Grade Ill) and who may have
::ilready been given the scale of Rs.2000-3200 (Grade IV) at
E the cost of those who were senior in the basic grades by any
different interpretation of the BCR Scheme, may in the
discretion of the Government instead of being reverted, be
considered for promotion to scale of Rs.2000-3200 (Grade IV)
by suitable adjustments in the number of posts by upgradation
F as necessary. The Government challenged the order dated
07.07.1992 of the Tribunal in Civil Appeal No.3201 of 1993 but
by order dated 09.09.1993 this Court held that the direction by
the Tribunal cannot be faulted and accordingly dismissed the
appeal.
G
5. Pursuant to the order dated 07.07.1992 of the Tribunal
in O.A. No.1455 of 1991 as affirmed by this Court in Civil
Appeal No.3201 of 1993, supernumerary posts were created
in the scale of Rs.2000-3200 (Grade IV) to adjust the
H employees who had already been given the scale of Rs.2000-
• BHARAT SANCHAR NIGAM LTD. v. GHANSHYAM
DASS AND ORS. [A.K. PATNAIK, J.]
3200 on the basis of their seniority in the scale of Rs.1600-
389
A
2660 (Grade 111). Moreover, after a review of the procedure for
promotions from Grade Ill to Grade IV, the Government issued
a fresh circular dated 13.12.1995 saying that promotion to
Grade-IV may be given from amongst officials in Grade-Ill on
the basis of their seniority in the basic grade, subject to fitness B 1
determined by the DPC and subject to the ceiling of 10% of
the posts in Grade-Ill (scale Rs.1600-2660) as provided in the
BCR Scheme.
6. The respondents in C.A. No.4369 of 2006 Shri c
Ghanshyam Dass and others filed O.A. No.2484 of 1997 and
the respondents in C.A. No.4370 of 2006 Shri Chiddu Singh
and others filed O.A. No.2099 of 1997 before the Central
Administrative Tribunal contending that employees who were
juniors to them in the basic grade but otherwise senior in Grade-
0
Ill, had been given promotion to Grade-IV earlier to the dates
when the respondents were given such promotion and by a
common order dated 11.08.2000 the Tribunal allowed the O.As.
and directed the Government to consider promoting them to
Grade IV with effect from the dates their immediate juniors in E
the basic grade seniority were so promoted subject to their
otherwise being found fit for promotiory, on such dates with
consequential benefits including seniority and arrears of pay
and allowances and retiral benefits in the case of those who
had retired on superannuation. The Government filed writ
petitions C.W. No.4555 of 2000 and C.W. No.4556 of 2000 in F
the High Court of Delhi, but by the two separate impugned
. orders the High Court found that the Tribunal, while allowing the
applications, had directed the Government to follow its own
circular dated 13.12.1995 which had been issued pursuant to
the order of the Tribunal dated 07.07.1992 in O.A. No.1455 of G
1991 which had attained finality after dismissal of the appeals
by this Court and accordingly dismissed the two writ petitions.
7. When these two Civil Appeals were heard l?Y a two
Judge Bench of this Court on 14.03.2007, they were of the view H
390 SUPREME COURT REPORTS [2011) 4 S.C.R. •
A that the matter should be referred to a larger Bench for the
reasons stated in the order dated 14.03.2007, which are
quoted hereinunder:
" ........ The question is that on what basis the promotion
is to be given. In normal course of business a person in
B
Grade-I is to be promoted on the basis of seniority from
Grade I to Grade II and likewise from Grade II to Grade Ill
and from Grade Ill to Grade IV. But because of a
clarification issued by the Department dated 3.4.1991, the
basic Grade seniority should be taken into consideration
c for promotion and not the pay-scales. If this is to be taken,
then this will mean that a person who is in Grade I and has
put in 26 years of service on 1.1.1990 will be entitled for
promotion from Grade I to Grade IV. Therefore, the
concept of basic cadre has to be interpreted with
D reference to the seniority in each Grade. But on account
of the order passed by the CAT which has been affirmed
by this Court on 9.9.1993 in Civil Appeal No.3201 of 1993
this anomalous situation has been created. Therefore, in
our view, it is appropriate if this matter is referred to a
E larger Bench so that the controversy involved in the matter
can be resolved ...... " ·
Thus, the learned Judges were of the view that on account of
the order passed by Central Administrative Tribunal in O.A. No.
F 1455 of 1991 which had been affirmed by this Court on
09.09.1993 in C.A. No. No.3201 of 1993 an anomalous
situation has been created inasmuch as a person who is in
Grade I and had put in 26 years of service would be entitled
for promotion from Grade I to Grade IV. They were of the view
G that the concept of basic cadre has to be interpreted with
reference to the seniority in each grade.
8. In the course of hearing before us, however, it has been
brought to our notice by learned counsel for the parties thatthei
controversy before us is confined to promotions of only
H employees from Grade-Ill to Grade-IV and not of employees
• BHARAT SANCHAR NIGAM LTD. v. GHANSHYAM
DASS AND ORS. [A.K. PATNAIK, J.]
391
working in either Grade-I or Grade-II. This will be clear from the A
order dated 07.07 .1992 of the Central Administrative Tribunal
in O.A. No.1455of1991 [Smt. Santosh Kapoor and others v.
Union of India and others] in which the Tribunal has directed
that promotions to 10% posts in Grade-IV (Pay Scale 2000-
3200) would have to be based on seniority in basic cadres s
subject to fulfillment of other conditions in the BCR Scheme and
it is this order of the Tribunal which was affirmed by this Court
in the order dated 09.09.1993 in Civil Appeal No.3201of1993.
This will also be clear from the fresh circular dated 13.12.1995
which was confined to promotions from Grade Ill to Grade IV c
under the BCR Scheme. Hence, the question of an employee
of the basic Grade (Grade-I) being promoted to Grade-IV
directly does not arise in the appeals before us.
9. Coming now to the merits of the two appeals before us,
Mr. R.D. Agrawala, learned counsel for the appellants, submitted D
that the Central Administrative Tribunal allowed the claims of
the respondents on the ground that in the basic grade they were
senior to some employees who. had already been promoted to
Grade-IV and this was clearly contrary to the fresh circular dated
13.12.1995 of the Government according to which promotions E
to Grade-IV may be given from amongst officials in Grade-Ill
on the basis of their seniority in the basic grade. He submitted
that the Tribunal in its common order in the two O.As. has given
the illustrative example of Lakhpat Rai Gumbar who was at
serial No.73 of the seniority list in the basic cadre while the F
respondents Ghanshyam Dass and Shyamlal Sachdeva, who
were applicants in O.A. No. 2484 of 1997, were placed above
him in the seniority list of the basic cadre at serial Nos.69 and
70 and yet Lakhpat Rai Gumbar had been promoted to Grade-
IV by order dated 08.01.1993 while the said two Ghanshayam G
Dass and Shyamlal Sachdeva had been promoted to Grade-
IV with effect from 01.01.1997 and 01.07.1997 respectively. Mr.
Agrawala submitted that the Tribunal failed to appreciate that
Lakhpat Rai Gumbar had been promoted from Grade-Ill to
Grade-IV with effect from 08.01.1993 pursuant to the order H
392 SUPREME COURT REPORTS [2011J 4 S.C.R.
A dated 07.07.1992 of the Central Administrative Tribunal in O.A.
•
No.1455 of 1991 in which the Tribunal had allowed the
Government to create supernumerary posts for promotion to
Grade-IV for those employees who were senior to the
applicants in the O.A. in the scale of Rs.1600-2600 (Grade Ill)
B and who had been given the scale of Rs.2000-3200 (Grade IV)
at the cost of those who were senior in the basic grades by a
different interpretation of the BCR Scheme. He further
submitted that the Tribunal also failed to appreciate that the
fresh circular dated 13.12.1995 of the Government could have
c only prospective effect and could govern only promotions made
after 13.12.1995 and in fact Ghanshyam Dass and Shyamlal
Sachdeva, the two applicants in O.A. No. 2484 of 1997, and
many other employees had been promoted from Grade-Ill to
Grade-IV on the basis of seniority in the basic cadre after the
D fresh circular dated 13.12.1995. He submitted that the High
Court has lost sight of all these aspects and has affirmed the
order of the Tribunal in the two O.As. erroneously.
10. Mr. Sudarshan Rajan, learned counsel appearing for
the respondents, in reply, submitted that the consolidated list
E of promotions under the BCR Scheme (Annexure P/1 in
C.A.No.4370 of 2006) would show that Ghanshyam Dass was
at serial No.69 and Shyamlal Sachdeva was at serial No.70,
whereas Lakhpat Rai Gumbar was at serial No.73 in the
seniority list of the basic grade. He submitted that since the
F Central Administrative Tribunal in its order dated 07.07.1992
in O.A. No.1455of1991 h~s held that promotions to 10% posts
in Grade-IV would have to be based on seniority in the basic
Cadre, Ghanshyam Dass and Shyamlal Sachdeva ought to
have been promoted before Lakhpat Rai Gumbar but the chart
G at page 34A in C.A. No.4370 of 2006 would show that Lakhpat
Rai Gumbar was promoted on 08.01.1993 whereas
Ghanshyam Dass and Shyamlal Sachdeva were promoted
much later on 01.01.1997 and 01.07.1997 respectively. He
vehemently submitted that Ghanshyam Dass and Shyamlal
H Sachdeva and all other respondents have to be given the
• BHARAT SANCHAR NIGAM LTD. v. GHANSHYAM
DASS AND ORS. [A.K. PATNAIK, J.]
393
benefit of the order dated 07.07.1992 of the Tribunal in O.A A
No.1455 of 1991 as affirmed by this Court, even though they
were not parties in the aforesaid O.A. before the Tribunal or
before this Court. He cited the decision in K. I. Shephard and
others v. Union of India and others [(1987) 4 SCC 431] in which
this Court held that employees who had not come to the Court B
should not be penalized for not having litigated and would be
entitled to the same benefits as the petitioners in that case. Mr.
Rajan further submitted that the Central Administrative Tribunal
in its order dated 07.07.1992 in O.A. No.1455 of 1991 had only
observed that employees who may be senior to the applicants C
in the O.A. in the scale Rs.1600-2600 and which may have
been given the scale of Rs.2000-3200 at the cost of those
senior in the basic grades may be 'considered for promotion'
and the Tribunal had not given any direction to promote all such
employees such as Lakhpat Rai Gumbar. He submitted that the
clarification on Point No.6 in the letter dated 11.03.1991 of the D
Government on the BCR Scheme was that the selection for
promotion from Grade-Ill to Grade-IV was to be based on merit
and not simply fitness and, therefore, Lakhpat f~ai Gumbar and
others could not have been promoted to supernumerary posts
without a proper selection on merit pursuant to the order dated E
07.07.1992 of the Tribunal in O.A. No.1455of1991.
11. We have considered the submissions of learned
counsel for the parties. The order dated 07 .07 .1992 of the
Central Administrative Tribunal in O.A. No.1455 of 1991 (Smt. F
Santosh Kapoor and Others v. Union of India & Ors.),
contained the following directions:
"In the above view of the matter, we direct that the
promotions to 10% posts in scale 2000-3200 would have G
to be based on seniority in basic cadres subject to
fulfillment of other conditions in the BCR Scheme viz. those
who were regular employees as on 1.1.1990 and had
completed 26 years of service in basic grades (including
higher scales). The respondents are directed to consider
H
394 SUPREME COURT REPORTS [2011] 4 S.C.R.
A applicants accordingly from due dates with consequential
benefits. The employees who may be senior to applicants
in the scale of Rs.1600-2660 and who may have already
been given the scale of Rs.2000-3200 at the cost of those
senior in basic grades by any different interpretation of the
B BCR Scheme, may in the discretion of the respondents,
instead of being reverted, be considered for promotion to
scale of Rs.2000-3500 by suitable adjustments in the
matter of posts by upgradation as necessary."
It will be clear from the directions in the aforesaid order dated
C 07.07.1992 in O.A. No.1455 of 1991 that the Government was
directed to consider only the applicants in the O.A. for
promotion to 10% posts in the scale Rs.2000-3200 (Grade-IV)
on the basis of seniority in the basic cadres from the due dates
with consequential benefits. The respondents in the two Civil
D Appeals before us were not the applicants in O.A. No.1455 of
199·1 and there was no direction to the Government to consider
the respondents in the two appeals for promotion to Grade-IV
scale on the basis of seniority in the basic cadre as per the
BCR Scheme. Hence, the respondents were not entitled to
E claim any promotion to Grade-IV on the basis of their seniority
in the basic grade on the basis of the order dated 07.07.1992
of the Tribunal in O.A. No.1455 of 1991 as affirmed by the order
dated 09.09.1993 of this Court in Civil Appeal No.3201 of
1993.
F
12. In K.I. Shephard (supra) relied upon by the learned
counsel for the respondents, this Court directed that each of
the transferee banks should take over the employees who had
been excluded from employment under the amalgamation
G schemes of the banks on the same terms and conditions of
employment under the respective banking companies prior to
amalgamation and further directed that such employees, who
were taken over, would be entitled to the benefit of continuity
of service for all purposes including salary and perks. This
Court further found that some of the excluded employees had
H
4'HARAT SANCHAR NIGAM LTD. v. GHANSHYAM 395
DASS AND ORS. [A.K. PATNAIK, J.]
not come to Court and held that there was no justification to A
penalize them for not having litigated and that they too shall be
entitled to the same benefits as the petitioners in that case.
There was, therefore, a clear direction in the judgment of this
Court in K./. Shephard (supra) that the excluded employees,
who had not approached the Court, shall also be entitled to the s
same benefits as the petitioners in that case were entitled under
the judgment of this Court. In the present case, as we have
seen, the Central Administrative Tribunal has not directed in its
order dated 07.07.1992 in O.A. No.1455 of 1991 that the
benefits of the order would also be extended to those who had c
not approached the Tribunal.
13. The principle laid down in K.I. Shephard (supra) that
it is not necessary for every person to approach the court for
relief and it is the duty of the authority to extend the benefit of a
concluded decision in all similar cases without driving every D
affected person to court to seek relief would apply only in the
following circumstances:
(a) where the order is made in a petition filed in a
representative capacity on behalf of all similarly E
situated employees;
(b) where the relief granted by the court is a
declaratory relief which is intended to apply to all
employees in a particular category, irrespective of F
whether they are parties to the litigation or not;
(c) where an order or rule of general application to
employees is quashed without any condition or
reservation that the relief is restricted to the
petitioners before the court; and G
(d) where the court expressly directs that the relief
granted should be extended to those who have not
approached the court.
H
A
396 SUPREME COURT REPORTS [2011] 4 S.C.R.
14. On the other hand, where only the affected parties
•
approach the court and relief isl given to those parties, the
fence-sitters who did not approach the court cannot claim that
such relief should have been extended to them thereby upsetting
or interfering with the rights which had accrued to others. In
B Jagdish Lal and others v. State ofHaryana and others [(1997)
6 sec 538], the appellants who were general candidates
belatedly challenged the promotion of Scheduled Caste and
Scheduled Tribe candidates on the:l basis of the decisions in
Ajit Singh Januja v. State of Punjab ((1996) 2 SCC 715].
C Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684]
and R.K. Sabharwal v. State of Punjab ((1995) 2 SCC 745]
and this Court refused to grant the relief saying:
".... this Court has repeatedly held, the delay disentitles the
party to the discretionary relief under Article 226 or Article
D 32 of the Constitution. It is not necessary to reiterate all
the catena of precedents in this behalf. Suffice it to state
that the appellants kept sleeping over their rights for long
and elected to wake up when they had the impetus from
Virpal Chauhan and Ajit Singh ratios. But Virpa/ Chauhan
E and Sabharwa/ cases, kept at rest the promotion already
made by that date, and declared them as valid; they were
limited to the question of future promotions given by
applying the rule of reservation to all the persons prior to
the date of judgment in Sabharwa/ case which required to
F be examined in the light of the law laid in Sabharwal case.
Thus earlier promotions cannot be reopened. Only those
cases arising after that date would be examined in the light
of the law laid down in Sabharwa/ case and Virpal
Chauhan case and equally Ajit Singh case. If the
G candidate has already been further promoted to the higher
echelons of service, his seniority is not open to be
reviewed. In A.B.S. Karamchari Sangh case a Bench of
two Judges to which two of us, K. Ramaswamy and G.B.
Pattanaik, JJ. were members, had reiterated the above
H view and it was also held that all the prior promotions are
• BHARAT SANCHAR NIGAM LTD. v. GHANSHYAM
DASS AND ORS. [A.K. PATNAIK, J.]
397
not open to judicial review. In Chander Pal v. State of A
Haryana a Bench of two Judges consisting of S.C.
Agrawal and G.T. Nanavati, JJ. considered the effect of
Virpal Chauhan, Ajit Singh, Sabharwal and A. B. S.
Karamchari Sangh cases and held that the seniority of
those respondents who had already retired or had been B·
promoted to higher posts could not be disturbed. The
seniority of the petitioner therein and the respondents who
were holding the post in the same level or in the same
cadre would be adjusted keeping in view the ratio in Virpal
Chauhan and Ajit Singh; but promotion, if any, had been c
given to any of them during the pendency of this writ petition
was directed not to be disturbed .... "
Since the respondents preferred to sleep over their rights and
approached the Central Administrative Tribunal only in 1997,
th.ey cannot get the benefit of the order dated 07.07.1992 of D
the Tribunal in O.A. No.1455 of 1991 and will only be entitled
to the benefit of the circular dated 13.12.1995 which was in
force in 1997.
15. We also find on a reading of paragraph 8 of the order E
dated 07.07.1992 of the Central Administrative Tribunal in O.A. r
No.1455 of 1991 that the Tribunal gave liberty to the
Government to consider employees who were senior to the
applicants in that case in a scale of Rs.1600-2660 (Grade-Ill)
and who may have already been given the scale of Rs.2000- F
3200 (Grade-IV) at the cost of those senior in the basic grades
by any different interpretation of the BCR Scheme then one
given by the Tribunal by suitable adjustments in the number of
posts by upgradation as necessary. It appears that pursuant to
this liberty granted to the Government, Lakhpat Rai Gumbar G
had been promoted to Grade-IV scale w.e.f. 08.01.1993
because of his seniority in Grade-Ill scale over two the
respondents in the Civil Appeal No.4369 of 2006, Ghanshyam
Dass and others and Shyamlal Sachdeva, even though he was
junior to these officers in the basic grade. Hence, Lakhpat Rai H
398 SUPREME COURT REPORTS [2011] 4 S.C.R.
A Gumber was promoted to one of tile posts in Grade-IV created
by the Government for the specific purpose of protecting
promotions done on a different interpretation of the BCR
Scheme by the Government as allowed by the Tribunal in the
order dated 07.07.1992 in O.A. No.1455 of 1991 and the
B respondents in these appeals can have no claim of promotion
to these supernumerary posts. Mm'eover, if the respondents
were in any way aggrieved by the promotion of Lakhpat Rai
Gumber and others who were junior to them in the basic grade,
they could have challenged their promotion in the appropriate
c forum, but they have not done so.
16. We further find on a r~ding of the circular dated
13.12.1995 of the Government that after the order dated
07.07.1992 of the Tribunal in OA. No.1455of1991 was affirmed
by this Court in Civil Appeal No. 3201 of 1993 on 09.09.1993
D the Government undertook a re\riew of the existing procedure
of promotion to Grade-IV and decided in supersession of
earlier instructions that promoti°'n to Grade-IV may be given
from amongst officials in Grade-I~ on the basis of their seniority
in the basic grade. This would be clear from the relevant portion
E of the circular dated 13.12.1995 extracted below:
"Review of the existing proc;edure of promotion to Grade-
IV (now designated as Chief Section Supervisor) under
the BCR Scheme has been under consideration in view
F of the judgment of Principal Bench, New Delhi upheld by
the Supreme Court. It has now been decided in
supersession of earlier instructions that promotion to the
said Grade-IV may be gilten from amongst officials in
Grade-Ill on the basis of th~ir seniority in the basic grade.
"
G
17. The language of the circular dated 13.12.1995 makes
it crystal clear that the Government took a fresh decision in
supersession of earlier instruc(ions that promotion to Grade-
IV may be given from amongst officials in Grade-Ill on the basis
H of their seniority in the basic grade. Hence, the decision of the
• BHARAT SANCHAR NIGAM LTD. v. GHANSHYAM
DASS AND ORS. [A.K. PATNAIK, J.]
399
Government to make promotions to Grade-IV on the basis of · A
their seniority in the basic grade could take effect only from
13.12.1995 and not from a prior date and the respondents, who
had filed O.A. No.2484 of 1997 and O.A. No.2099 of 1997 in
the Central Administrative Tribunal could not claim any
promotion to Grade-IV on the basis of their seniority in the basic B
cadre with effect from any date prior to 13.12.1995. The
Central Administrative Tribunal was, therefore, not right in
allowing O.A. No.2484 of 1997 and 0.A. No.2099 of 1997 by
order dated 11.08.2000, directing the Government to consider
promoting the applicants to Grade-IV with effect from the dates C
their immediate juniors in the basic grade seniority were so
promoted subject to their being found fit with consequential
benefits of seniority as well as arrears of pay and allowance
and of retiral benefits in the case of those of the applicants in
the O.As. who had retired on superannuation. In our considered D
opinion, the High Court ought to have interfered with the
decision of the Tribunal.
18. We accordingly allow these appeals and set aside the
impugned orders dated 22.05.2003 of the High Court and the
common order dated 11.08.2000 of the Central Administrative E
Tribunal in O.A. No. 2484 of 1997 and O.A. No.2099 of 1997.
The two O.As. stand rejected. There will be no order as to costs.
B.B.B. Appeals allowed.
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