1. This writ petition has been filed: (i) to seek a writ, direction or order in the nature of certiorari for quashing the order dated 07.05.2009 passed by the Central Administrative Tribunal (hereinafter referred to as ''the CAT') in O. A. No.199/2009; (ii) to seek a writ, direction or order in the nature of mandamus commanding the CAT to admit and decide the original application on merit after remanding the case to the CAT; (iii) to seek indulgence of the Court against the order passed by the CAT while flouting the order of the High Court dated March 3, 2009 and (iv) for issuance of a writ, direction or order as is deemed fit and proper in the facts and circumstances of the case.
2. It appears that the petitioners filed an application dated 26.02.2009, supported by an affidavit, in a pending writ petition No. 520 (S/B) of 2007, praying therein that they be permitted to withdraw the writ petition with liberty to file an O.A. before the CAT to claim appropriate relief. A co-ordinate Division Bench of this Court, while considering the notification dated 31.10.2008 whereby the Bharat Sanchar Nigam Limited was notified under Section 14(2) of the Central Administrative Tribunal Act, 1985 with effect from 10.11.2008, passed an order on 03.03.2009 dismissing the writ petition on the ground that the petitioners have an alternative and statutory remedy before the CAT and also directed that in case an original application is moved within two months from the date of order, the same shall be disposed of in accordance with law, on merits. The order of this Court, on reproduction, reads as under:
"Hon'ble U.K. Dhaon, J.
Hon'ble Dr. Satish Chandra, J.
Heard Sri R.C. Saxena, learned counsel for petitioners no.4,5,7 and 11 and Sri Asit Kumar Chaturvedi, learned counsel appearing on behalf of opposite parties no.2 and 3.
Sri Asit Kumar Chaturvedi, learned counsel for opposite parties no.2 and 3 has placed before us a copy of the notification dated 31.10.2008 by which the Bharat Sanchar Nigam Limited has been notified under Section 14(2) of the Central Administrative Tribunal Act, 1985 with effect from 10.11.2008. Since the petitioners have an alternative and statutory remedy before the Central Administrative Tribunal against the opposite parties, the writ petition is dismissed on the ground of alternative remedy available to the petitioners. In case, an original application is moved within two months from today, the same shall be disposed of by the Central Administrative Tribunal, in accordance with law, on merits."
3. Accordingly, the petitioners filed O.A. No.199/2009 on 25.03.1999 before the CAT within the stipulated period in accordance with the liberty granted vide order dated 03.03.2009 by this Court alongwith a copy thereof. During the course of hearing, it appears that the respondents took objection to the admission of O.A. praying not to grant without hearing them whereas the petitioners insisted that in view of this Court's order dated 03.03.2009, it was to be heard on merit, and thus, there was no need to consider the objections raised by the respondents. However, by an order dated March 30, 2009, the CAT held that it was necessary to provide opportunity of hearing to the respondents on the question of admission. Thereafter, the arguments of respondents were heard on 16.04.2009 and the CAT passed the order dated 07.05.2009 while holding that the O.A. was barred by limitation and declined to admit the O.A. for disposal on merits.
4. We have heard learned counsel for parties and perused the impugned orders.
5. Learned counsel for petitioners submitted that the CAT has violated the order of this Court dated 03.03.2009, which was clear enough to indicate that the O.A. was to be disposed of by the CAT in accordance with law on merits. According to learned counsel, it was not open for the CAT to interpret the order of this Court on the line taken in the objections as raised by the respondents. This is also a submission of learned counsel for petitioners that the CAT has finally dismissed the O.A. on the ground of limitation irrespective of the directions of this Court to decide it in accordance with law on merits.
6. Learned counsel for petitioners also submitted that the seniority position of TES Group ''B' Officers including that of petitioners was circulated in five lists on different dates. Names of the petitioners find place in seniority list no. 4 at serial no.128 and serial no.198 respectively whereas names of opposite party no.5 to 8 being junior were mentioned in seniority list no.5. The seniority lists were prepared only towards the compliance of a direction issued by the Supreme Court vide the judgment and order dated 26.04.2000 passed in C.A. No.4339 of 1995 (Union of India v. Madras Telephones SC/ST Social Welfare Association) reported in 2000 (9) SCC Page 71.
7. Learned counsel while explaining the position submitted that in the year 1987 and 1988 under Limited Departmental Competitive Examination Quota, the examination was held to fill the available vacancies by promotion to TES Group ''B'. Thus a panel of successful/selected candidates was drawn and all such selected candidates were promoted to TES Group ''B' according to merit. However, the opposite parties no.5 to 8 and a large number of other candidates who had appeared in the above examination could not get promotion on account of non-inclusion of their names in the merit list prepared for promotion according to the vacancy position available at that time. Moreover, opposite parties no.5 to 8 and other candidates who were not promoted under Limited Departmental Competitive Examination Quota in the year 1987 and 1988 also did not raise the issue any further, that they were not promoted to TES Group ''B' under 66% Departmental Promotion Quota. The petitioners and others were, on the other hand, included in the merit list for promotion to TES Group ''B'. Thereafter, opposite parties no.5 to 8 and others were cleared and promoted subsequently in the year 1994 in terms of the Departmental Promotion Quota. In the seniority list also drawn in terms of the directions and guidelines as per the Supreme Court's order, opposite parties no.5 to 8 and others were shown junior to the petitioners. Learned counsel also alleged that opposite parties no.5 to 8 and others - in total 270 TES Group ''B' Officers who were promoted under Departmental Promotion Quota to TES Group ''B' in the year 1994 manipulated the things with higher authorities, and got themselves declared successful in the examination held in 1987 (64 officers) and in 1988 (206 officers) under the Limited Departmental Competitive Examination Quota vide the order dated 01.02.2001 in which they had been declared unsuccessful, and also succeeded in getting a revised seniority assigned to them, as published by letter dated 20th March, 2001, upsetting the seniority list already drawn in accordance with the directions of the Supreme Court as aforesaid. This exercise of upsetting the seniority list already drawn under Supreme Court's order adversely affected about 10,000 TES Group ''B' Officers throughout the country. Some of Group-B Officers, feeling aggrieved, filed O.A. No.305 of 2001, challenging the orders dated 01.02.2001 and 20.03.2001 while praying for quashment of the same before Central Administrative Tribunal Bench, Madras, which was finally allowed vide a judgment and order dated 28.09.2001 whereby the orders dated 01.02.2001 and dated 20.03.2001 regarding declaration of 270 TES Group ''B' Officers as successful under the Limited Departmental Competitive Examination Quota of 1987 and 1988 and recasting of seniority list were quashed. Thereafter, the respondents filed a writ petition no.21961 of 2001 against the aforesaid judgment of Central Administrative Tribunal Bench, Madras. At the same time, contrary to the judgment of the CAT, official-respondents issued promotion orders dated 20.12.2001 promoting 656 TES Group 'B' officers to STS of ITS Group 'A' and further vide another order dated 21.08.2001 promoted 479 TES Group 'B' officers to STS of ITS Group 'A'. These promotion orders also included 270 TES Group 'B' officers and the private respondents herein in whose favour the order dated 01.02.2001 under 1/3rd competitive quota had been issued. Thus, even during the pendency of matters before the High Court the official respondents carried out the promotions of other officers on the basis of revised seniority list in question and ignored the petitioners. The said writ petitions being Nos.21961 and 22087 of 2001 were decided by the Madras High Court on 02.04.2008 whereby the decision of the CAT Bench at Madras was upheld. Thereafter, 4 aggrieved officers, who had filed writ petitions in Madras High Court, filed Special Leave Petition No.11339 of 2008 wherein vide an order dated 21.12.2008 Hon'ble the Apex Court passed interim order of status-quo. Thus, it is only on the ground that in the pending Special leave Petition, an interim order granting status quo was passed, the O.A. of petitioners was rejected by the CAT Bench at Lucknow. It is also contended that in the above Special Leave Petition, the reliefs had been sought only against the official respondents, who had not even filed the Special Leave Petition, challenging the orders of CAT Madras and the Madras High Court. Besides, the reliefs sought by the petitioners in the Original Application were entirely different from the reliefs claimed in the Special Leave Petition by 4 respondents. Learned counsel also referred to a judgment of this Court reported in 2009 (1) UPLBEC 167 (Sadanand Mukherji vs. State of U.P. & others) to show that by passing the impugned order, prima facie, in violation of the order of a coordinate Bench, the Tribunal has committed the contempt of this Court. Relevant portion of the judgment being para 4 on reproduction reads as:
"4. Now, while deciding the present controversy learned Tribunal recorded a finding that the claim petition is not maintainable for the same relief, when this Court while remitting back the case to the Tribunal directed the Tribunal to decide the same on merit, it was not open for the Tribunal to make observation that the claim petition was barred by principle of res judicata and not maintainable. Once the writ petition was allowed by the Division Bench of this Court, then Tribunal should have decided the case on merit alone and not on any other ground like being barred by principle of res judicata. It is for the second time that the Tribunal while recording the finding that the claim petition is barred by principle of res judicata. has dismissed the claim petition in violation of the judgment and order of this Court dated 23.8.2005 passed in Writ Petition No.1381 (S/B) of 2005.
5. In the hierarchy of system, the power of superintendence on all subordinate courts, authorities and tribunals is vested under Article 227 of the Constitution of India. After remitting of matter by this Court by the judgment and order dated 23.8.2005, it was not open for the Tribunal to reject the petitioner's case with the finding that the claim petition is barred by res judicata. Learned member of the Tribunal while recording such finding have over stepped jurisdiction vested in them which at the face of record, amounts to contempt of this Court. Both the members of the Tribunal ought to have been cautious of the settled principles of law that they should not have rejected the claim petition in contravention of directions issued by this Court."
8. On the other hand, learned counsel for respondent no.4 submitted that the judgment of CAT Bench at Madras affirmed by the Madras High Court has not yet attained finality in view of the interim order passed by Hon'ble the Supreme Court dated 21.12.2008 whereby the parties have been directed to maintain status quo as on that date in regard to judgment and order of the Madras High Court. Learned counsel also submitted that the Tribunal while declining to admit the Original Application of the petitioner had also granted liberty to approach the Tribunal afresh after the Special Leave Petition in Madras case is decided by Hon'ble the Supreme Court. Learned counsel referred to a judgment of Hon'ble the Apex Court reported in (1994) Supp. (3) SCC 644 ( A. Halim and Others v. Ms. Tajadeen and Others) to argue that a parallel proceedings should not be allowed to continue.
9. Learned counsel further submitted that the relief as prayed before the Tribunal in terms of liberty granted by this Court was totally different from the relief sought before the High Court in writ petition, and further some private respondents were also impleaded therein, as such, the petitioners were not entitled to get any benefit out of the observations made by the High Court in its order dated 03.03.2009, and that is why, the Tribunal in its order dated 30.03.2009 has noticed as under:
"Shri G.S. Sikarwar, Learned Counsel, who is appearing for Respondent No. 3 also raised preliminary objections for admission of the OA stating that the orders of Hon'ble High Court passed in Writ Petition No. 520/2007, (SB) is in respect of some other relief but not the relief, which the applicants herein are claiming and as such, the said decision of the Hon'ble High Court is not at all helpful to the applicants for pressing their case for admission of the O.A."
10. Learned counsel for respondents also submitted that the petitioner have not impleaded necessary parties in the writ petition and further 3 private respondents herein, namely, Surendra Babu, R.K. Srivastava and Ved Prakash are also unrepresented today as this Court has not issued any notice to them. Thus, if an ex-parte adverse order is passed, they may suffer irreparable damage without having been granted opportunity of hearing. Further, it would also be necessary to implead the persons who were parties in Original Application no.21 of 2009 (S.N. Abbas and 9 others vs. Union of India and 13 others) as the Original Application filed by the petitioners before the Tribunal being Original Application No.199 of 2009 contained the prayer for the same relief as made in Original Application No.21 of 2009.
11. On a careful consideration of rival submissions, we are of the considered view that once this Court had given a direction to decide the matter on merit it was not open for the Tribunal to dilute the mandate of the order by declining the admission of Original Application. The order of the Tribunal seems to be bordering on the contempt of the order of the High Court. Pendency of the case in a higher forum does not mean that a litigant has no right to be heard on merit particularly when the High Court has given liberty to move O.A. in view of notification bringing the government organization in question under the jurisdiction of the Central Administrative Tribunal. Besides, Hon'ble the Apex Court had passed the order of status quo only in respect of implementation of the order of the Madrass High court. That apart, in the facts and circumstances, the prayer made in the O.A. should have been carefully examined and in case it was found that the reliefs sought in the O.A. were similar to the one being the subject matter of the Special Leave Petition before the Supreme Court wherein the order of Madras High Court has been challenged, the Tribunal should have kept the petition pending in stead of rejecting at the outset and then should have disposed it of after the judgment. At least the petitioner should have been given full opportunity of addressing the Tribunal by giving a complete hearing to both the parties. In addition to that, the order of status quo as passed by Hon'ble the Apex Court is dated 21.12.2008 whereas the direction was given to the Tribunal by the subsequent order passed by a Co-ordinate Bench of this Court on 03.03.2009 after hearing both the parties, also on the points raised on behalf of respondents during the course of hearing of this petition. Thus, the directions were not given in the ignorance of the order of status quo passed by the Hon'ble Apex Court.
12. In this background, in order to enforce the judicial propriety and to give a complete hearing to the parties on issues raised before the Tribunal we set aside the impugned order of the Tribunal with a note of caution, and remit the case and restore the O.A. to its original number with a direction to the Tribunal to decide and dispose it of in terms of the order dated 03.03.2009.
13. We also make it clear that if the Tribunal finds after hearing the parities that the reliefs prayed for and grounds raised in the O.A. are similar to the Special Leave Petition pending in the Hon'ble Apex Court, it can await the outcome of the Special Leave Petition. But in case the grounds and reliefs seem to be substantially different, the Tribunal may hear the matter within a period of two months from the date of receiving a certified copy of this order in terms of the direction given by the Co-ordinate bench vide order dated 03.03.2009.
14. With the aforesaid observations and directions the writ petition stands disposed of.