JUNIOR TELECOM OFFICERS FORUM AND ORS.versusUNION OF INDIA AND ORS.

A           JUNIOR TELECOM OFFICERS FORUM AND ORS.
                                         v.
                         UNION OF INDIA AND ORS.

                              SEPTEMBER 18, 1992

B                  [J.S. VERMA AND DR. A.S. ANAND, JJ.]

           Civil Services: P. & T. Manual, Vol. IV-Para 200-Telecom Engineer-
    ing Service (Group BJ-Promotion Mode of-Seniority of junior telecome
    officers and assistant engineers-f"ixation of-Eligibility or approved
C   list-Preparating-Matters concluded by Allahabad High Court and C4 T-
    Finality of

          Constitution of India, 1950: Article 32-Writ to reagitate matters settled
    in previous cases, wherein petitioners' cause was espoused-Maintainability
D of-Petitioners' conduct-Whether abuse of the process of the Court.
          One P.N. Lal (recruited in the 1966 batch), and one Brij Mohan
    (recruited in the 1965 batch) qualified in the qualifying examination held
    in 1974. In 1981, they filed two writ petitions in the Allahabad High Court
    complaining of their placement in the eligibility list below the last man,
E   who passed the qualifying examination in 1975.

          The case of the department was that the eligibility list was prepared
    on the basis of the seniority, based on the year of recruitment ignoring the
    year of passing the qualifying department examination.

F         The High Court came to the conclusion that those who qualified in
    the department examination earlier were entitled to be promoted prior to
    those who qualified later irrespective of the year of their initial recruitment
    and also held that para 206 of the P&T Manual was not in conOict with
    either the rules of 1961 or 1981 but was supplemental to those rules.
G        The Union of India appealed against the judgment of the Allahabad
    High Court before this Court by special leave.

         This Court dismissed the S.L.P. on merits and directed the
    authorities to deposit half of the sum, which was directed by the High
H   Court, as arrears of respondent No.l's salary.
                                          764
                     'IELECOM OFFICERS v. U.0.1.                      765

      Subsequently, some other Junior Engineers approached the Central A
Administrative Tribnnal, Ernakulam Bench, and songht relief on tlte basis
of the Allahabad High Court judgment. The CAT allowed the applications.

      Some more Junior Engineers later on approached the Principal
Bench of Central Administrative Tribunal seeking relief identical to that
of the Allahabad cases.                                                      B
       The Principal Bench allowed the applications and issned directions
for relixation of the seniority.

      Since, the directions of the Principal Bench were not complied with,
contempt petitions were filed. On notices being issued, the Union of India   C
and others informed Tribunal that they were in the process of revising the
seniority of the entire cadre of TES (Group B) as per the gnidelines
contained in para 206 of the P&T Manual. A direction was issued to the
respondents to comply with the orders of Central Administrative Tribunal
within the time fixed by the CAT.                                            D
      The order of CAT was challenged in this Court both by the Union of
India and JTOA (India) who bad sought permission to file the SLP. The
special leave petitions were dismissed.

      Some more applications were filed in the Central Administrative        E
Tribunal, Principal Bench raising common questions and seeking relief on
the basis of the judgment of the Allahabad High Court and various other
orders rendered by different benches of the CAT in identical cases.

      The Fornm, (Petitioner in WP(C) No. 460 of 1992) filed an applica-
tion for intervention and opposed the grant of relief.                       F

     The CAT rejected the application of the Forum and granted relief to
the applicants, following the judgment of the Allahabad High Court,
against which the SLP had been dismissed.

       Thereafter the present writ petition (W.P.(c) No.460 of 1992) was G
filed by the Forum. Forum filed Special Leave Petition Nos. 9063-64 of1992
against the order of the Cntral Admillistrative Tribunal, Principal Bench
refusing Intervention Application of the petitioner in O.A. No.2407 of 1988
vide an order dated 22.4.1992; Transfer Petition (Civil) No.417 of 1992
seeking transfer of various petitions pending in different benches of the H
    766                   SUPREME COURT REPORTS [1992) SUPP. 1 S.C.K

A Tribunal to this Court under Article 139-A(i) of the Constitution of India.
          The controversy in the writ petition related to the mode of promotion
    to Telecom Engineering Service (Group B) as well as to the fixation of
    seniority of jnnior telecom officers and assistant engineers in that category
    and the preparation of the eligibility or the approved list for the said
B   purpose by the department in accordance with the recruitment rules and
    Para 206 of the P&T Manual, Vol. IV.

           The caveators raised a preliminary objection to the maintainability
    of the present writ petition, contending that the petitions were set up only
C   for the purpose of getting a new lease in the litigation after the matters
    stood concluded in the SLPs filed against the judgment of the Allahabad
    High Court as welI as against the judgment of Principal Bench of the
    Central Administrative Tribunal; that matters which were concluded and
    the issues which had been settled could not be permitted to be reopened
    in the manner adopted by the petitioners, which was nothing bot an abuse
D   of the process of the court, because JTOA (India) had espoused the cause
    of alI its members, including those now constitution the Forum; and that
    after the battle was lost by JTOA (India) the Forum had come up to reopen
    the concluded views.

E       The petitioners submitted that the petitioners were not parties either
  before the Allahabad High Court or the Central Administrative Tribunal
  in the earlier cases, that since their interests were adversely affected by the
  orders made in those cases, they had a right to get the matter examined
  by this Court, more so, bacause the order of the CAT and the Allahabad
  High Court would affect a very large number of junior engineers and the
F Bangalore Bench had struck a divergent note; and that the point of view
  of the petitioners was not considered or discussed in the earlier cases and
  therefore they could not be debarred either by the principle of resjudicata
  or even constructive resjudicata to agitate their grievances; that the dis-
  missal of the special leave petitions by this Court in limine could not be
G treated to be any precedent so as to bind the petitioners.

          Dismissing the Writ Petition, the Special Leave Petitions and the
     Transfer Petition, this Court,

           HELD : 1.01. The Forum and the petitioners, excepting a few, were
H not parties in their individual capacity in the earlier litigation bt!fore the
                     TELECOM OFFICERS v. U.0.1.                          767

CAT or this Court since obviously the Forum was not even in existence at        A
that time, but their cause was being espoused by their association JTOA
(India) which had appeared before the CAT as well as filed a SLP in this
Court against the order of the CAT dated 7.6.1991. JTOA (India) had in
the SLP projected the same view point and highlighted the same views as
are being projected now in the writ petition. [777-H, 778-A]
                                                                                B
     1.02. The correctness of the Allahabad High Court Judgment and
CAT was unsuccessfully assailed in the previous litigation. The SLP filed
by JTOA (India) was dismissed by this Court. [778-B]

      1.03. The order of the Division Bench of this Court in SLP Nos.3384-      C
86 of 1986 unmistakably shows that the dimissal of the SLP, though in
limine, was on merits and the Court declined to interfere with the im-
pugned judgment of the Allahabad High Court except to a limited extent
as indicated therein. [778-F]

       1.04. The issne which bas been high-lighted in the present petition      D
in actual substance is only that the year of recruitment, irrespective of the
year of qualifying the departmental examination, should form the basis for
promotion and the fixation of inter se seniority ignoring para 206 of the
P&T Manual. Reliance has been placed in that behalf on the recruitment
Roles of 1966, 1981 and the executive instructions. These issues including      E
Rules and instructions were directly and substantially projected in the
earlier litigation including the one to which JTOA (India) was a party. It
is, therefore, impermissible now for the Forum to make attempts in this
manner to have the very same matter reopened by asserting that their view
point had not been projected in the earlier litigation, when admittedly
JTOA (India) of which the Forum forms a part, had projected that view           F
point though unsuccessfully. It is, therefore, incorrect to say that the plea
now set up by the Forum was not asserted or considered in the earlier
litigation at the instance of parties representing the interest of the sub-
sequently formed Forum comprising some members of JTOA (India).
                                                           [778-H, 779 A-CJ     G
      1.05. Besides, on the petitioners' own showing all the issues which
they have raised in the writ petition had been also raised in their interven-
tion applications which bad been heard alongwith the original applications
and rejected on 22.4.1992 after the intervention application had been taken
on board by the CAT. [783-C]                                                  H
    768                    SUPREME COURT REPORTS (1992J SUPP. I S.C.R.

A         1.06. It is improper, for the petitioners to now urge that they had no
    occasion or opportunity to raise the issues and contentions, as now raised,
    befor the .Principal Bench of the CAT or that the same were not heard and
    considered on merits. (783-D]

         1.07. Since, the issues now raised have been agitated twice over, it is
B   not permissible for the petitioners to once again reagitate the matter by
    coming now under the 'cloak' of a Forum. (784-FJ

           1.08. OA 1707/92 was tiled while the proceedings were pending in this
    Court. The prayers made in paragraph 81 of Original Application
C   No.1707/92 are a verbatim reproduction of the prayers in the present writ
    petition. ·How the petitioners chose to pursue different remedies at the
    same time in respect of the same matter in different forums iu not at all
    understendable. This Court records its disapproval and concern on such
    conduct of the Forum, which exposes the effort of the Forum to somehow
    or the other reagitate the concluded issues and frustrate the orders already
D   made by the Allahabad High Court, different Benches of the CAT and
    upheld by this Court. (783 G·H, 784-A]

         SLP(C) Nos. 3384-86 of 1986 disposed of on 8.4.1986; SLP (C) Nos.
    19716-19722 of 1991 disposed or on 6.1.1992, referred to.

E         Makhan/a/ Waza & Ors. v. State of Jammu & Kashmir & Ors., (1971]
    3 SCR 832, followed.

          ORIGINAL/CIVIL APPEl:.LATE JURISDICTION : Transfer Peti-                 I
    tion (Civil) No. 417 of 1992.                                                  !-:-

F         Under Article 139A (1) of the Constitution of India.
                                                                                    1
                      IN

          Writ Petition No.460 of 1992.

G         {Under Article 32 of the Constitution of India.)

                               WITH

          Special Leave Petition {C.) Nos. 9063-64 of 1992.

H         From the' Order dated 22.4.1992 of Central Administrative Tribunal
                  TELECOM OFFICERS v. U.0.1. [ANAND, J.]                  769

    Principal Bench, New Delhi in M.P. Nos. 33% and 3397 of 1991 in O.A. A
    No.2407 of 1988.

        Ashok Desai, Arun Jaitley, R.F. Nariman, Jatinder Sethi and Ms.
    Meenakshi Arora for the Petitioners.

         Gobinda Mukhoty, Naresh Kaushik, Ms. Lalita Kaushik and Shankar        B
    Divate for the Respondents.

         The Judgment of the Court was delivered by

          DR. A.S. ANAND, J. Junior Telecom Officers Forum (for short C
    'Forum') through Shri Satpal Batra claiming to be the President of the
    Forum has filed Special Leave Petition Nos. 9063-64 of 1992 against the
    order of the Central Administrative Tribunal, Principal Bench, New Delhi
    refusing Intervention Application of the petitioner in O.A. No.2407 of 1988
    vide an order dated 22.4.1992; Transfer Petition (Civil) No.417 of 1992
    seeking transfer of various petitions pending in different benches of the D
    Tribunal to this Court under Article 139-A (1) of the Constitution of India
    and Writ Petition (Civil) No.460 of 1992. Mr. Ashok Desai, the learned
    senior advocate appearing for the petitioners in all the cases requested for
    the writ petition to be taken up for consideration, since, the issues involved
    in the writ-petition and the special leave petitions are the same. We shall, E
    accordingly, first take up the writ petition for consideration. The relief
    prayed for in the writ petition is as follows:
t
i           '(a) Issue a Writ in the nature of mandamus or any other
            appropriate writ order or direction directing the respon-
            dents to give effect to the TES (Class II) Recruitment              F
            Rules 1966, memorandum dated 28.6.1966 and other such
            memorandum issued thereunder for the period 15.6. 1_966
            to 6.5.1981 along with the TES (Group B) Recuitment
            Rules 1981 and amendments thereto as promulgated
            under proviso to Article 309 of the Constitution of India
            w.e.f. 7.5.1981 onwards;
                                                                                G

                                      AND

            (B) Issue a Writ in the nature of mandamus or any other
            appropriate writ, order or direction, directing the respon-         H
    770                SUPREME COURT REPORTS 11992] SUPP. 1 S.C.R.

A         dents to make promotions based on to the TES (Group
          B) Service in conformity and in accordance with the
          eligibility list (Annexure-9) on the basis of (sic) the same
          year of recruitment separately for each year of ;ecruitment
                                                                          I
          and persons of the same year of recruitment be arranged
          on the basis of the exam. in that order,
B
                                     AND

          ( c) Issue a writ in the nature of certiorari or any other
          appropriate writ, order or direction, declaring Para 206
C         of the P&T Manual Volume IV to. be redundant and
          superseeded by TES (Class II) Recruitment Rules 1966
          w.e.f. 15.6.1966 and quashing its applicability thereafter to
          TES (Group B) Service;

                                     AND
D
          ( d) Issue a Writ in the nature of certiorari or any other
          appropriate writ, order or direction, quashing, varying or
          setting or setting aside the judgment and order dated
          20.2.1985 passed by Allahabad High Court in W.P.
E         No.2339/81 and W.P. No.3652/81 and set aside, vary or
          quash, either in part or in full, the various judgments and
          orders following the said judgment including this Hon'ble
          Courts orders dated 8.4.1986 in SLP Nos.3384-86/86 and
          dated 6.1.1992 in SLP Nos. 19716-22/91;
F
                                     AND

          ( e) Issue a writ, in the nature of Prohibition, or any other
          approriate writ order or direction restraining the respon-
          dents from revising the seniority of Cadre of TES (Group
G         B) Officers as per Para 206 of the P&T Manual Volume
          IV and further restrain the respondents from reverting
          Assistant Engineers already promoted in accorilance with
          the TES (Class JI) Recruitment Rules 1966 and TES
          (Group B) Recruitment Rules 1981 and memoranda and
H         amendments thereto respectively;
              TELECOM OFFICERS v. U.0.l. [ANAND, J.]                    771

                                   AND                                        A
        (!) Issue any other such or further appropriate writ order
        or direction, as this Hon'ble Court may deem fit and
        proper in the facts and circumstances of this case and in
       ·the interest of justice;
                                                                              B
                                   AND
        (g) Awards costs of the Petition to the petitioners;

                                   AND
                                                                              c
        (h} Pass such further and other orders as this Hon'ble
        Court may deem fit in· the facts and circumstances of the
        present case.

                                  "'
In paras H, N and 0 of the writ petition, it has been averred as follows:
                                                                              D
        'That dismissal of SLP by this Hon'ble Court in P.N. Lat's
        case andBrij Mohan's case, is in all humility and with_ great
        respect a nullity and .not operative as a precedent at all.
        WhereasP.N. Lat's case and Brij Mohan's case were based
        on-suppression of relevant rules, regulations and statutory
                                                                              E
        instructions rendering the judgment vitiated and error-
        neous, this Hon'ble Court too did not have any occasion
        to consider the said facts since the same were not brought
        to the notice of this Hon'ble Court as well. The order of
        this Hon'ble Court in SLPs is based on the facts and
        circumstances of the case as before the Allahabad High                F
        Court, and not ratio decidendi and hence is not a judg-
        ment binding ·under Article 141 of the Constitution of
        India and is neither a precedent nor acts as resjudicata to
        even fresh action by adversely affected persons/
        petitioners. AIR 1989 SC 38.
                                                                              G
        (N) That the order of this Hon'ble Court dated 6.1.1992
        dismissing SLP Nos. 19716-22 of 1991 in limine is with all
        humility .and great respect not a precedent but is an order
        on facts an!'f circumstances of the case and do not lay
        down any law for puposes of Article 141 of the Constitu-              H
    772                  SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A           tion of India. Further more its is settled law that a judg-
            ment rendered in ignorance of a statute or a rule having
            a statutory force, which would have affected the result is
            not binding on a Court, otherwise bound by its own
            decisions [1%2] 2 SCR 558.

B           (0) That the orders of this Hon'ble Co:urt in the two SLPs
            dated 8.4.1986 and 6.1.1992 are judgments in the facts and
            circumstances of the case and cannot be cited as prece-
            dents, more so since no ratio nor any principles are laid
            therein, AIR 1975 SC 1087. AIR 1%7 SC 1480. It is always
c           open to this Hon'ble Court to reexam the question already
            decided by it and to overrule, if necessary, the view taken
            earlier insofar as all other Courts in India are concerned
            ought to be bound by the view even in advisory jurisdic-
            tion. AIR 1979 SC 478. Furthermore where it is an error
            apparent on the face of record complained of such as the
D
            judgment does not deal effectively and determine an im-
            portant issue in the case on which depends the main-
            tainability of the petition, such error must be recorded as
            a sufficient reason for interference. 1955 SCR 520.

E       The controversy, as we have been able to gather from the voluminous
  record of the writ petition, relates to the mode of promotion to Telecome
  E11gineering Service (Group B) as well as to the fixation of seniority of
  junior telecom officers and assistant engineers in that category and the
  preparation of the eligibility or the approved list for the said purpose by
F the department in accordance with the recuitment rules and Para 206 of
  the P&T Manual, Vol. IV. Para 206 provides for a pass in the departmental
  qualifying examination as a condition precedent for promotion to the
  Telecom Engineering Service (hereinafter TES) Group B. Para 206 (II) of
  the Manual provides that promotion to the TE and WS (Class II) will be
G according to the seniority-cum-fitness, but engineering supervisors who
  pass the qualifying examination earlier will rank senior en-block as a group
  to those who pass the examination later. Their seniority inter se has been
  arranged according to their seniority in the cadre of engineering super-
  visors. In case the year of passing of the examination is the same, the
  percentage of marks obtained at the end of theoretical training, at the
H training centres, governs the arrangement of inter se seniority. The basis
               TELECOM OFFICERS v. U.0.1. [ANAND, J.]                      773

under which the lists are being perpared by the department and against A
which the petitioners have a grievance are certain judgments and we shall
refer to the same in brief hereafter.

       In 1981 S/Shri P.N. Lal (recruited in the 1966 batch) and Brij Mohan
(recruited in the 1965 batch) who had qualified in the qualifying examina-
tion held in 1974 filed two writ petitions in the Lucknow Bench of the            B
Allahabad High Court complaining of their placement in the eligibility list
below the last man who passed the qualifying examination in 1975. The
case of the department was that the eligibility list 'had been arranged on
the basis of the seniority, based on the year of recuitment ignoring the year
of passing the qualifying departmental examination. The High Court con-           C
sidered the rules of 1966 as also the rules of 1981 and para 206 of the P&T
Manual and came to conclusion that those who qualified in the departmen-
tal examination earlier were entitled to be promoted prior to those who
qualified later irrespective of the year of their initial re~ruitment. The High
Court noticed that para 206 of the P&T Manual was in existence when the           D
rules of 1966 and 1981 came into force and held that para 206 was not in
conflict with either the rules of 1961 or 1981 but was supplemental to those
rules. Relief was accordingly granted to the writ petitioners based on the
interpretation of the Rules and Para 206 of the P&T Manual.

      The Union of India preferred SLP Nos. 3384-86 of 1986 against the           E
judgment and order of the Allahabad High Court. In the SLP, the following
question was stated to be involved:.

         "This petition involves important and, substantial question
         of Jaw as to whether the High Court should have directed
         that the petitioner be promoted with effect from the day                 F
         prior to a date of promotion of any person who passed
         the departmental examination subsequent to them and in
         that case fix their seniority accordingly and pay them
         salary and allowances with effect from the said date. In
         the facts and circumstances of the case and whether 1966
                                                                                  G
         Rules are applicable."

     On 8.4.1986, after hearing counsel for both sides, a bench of this
Court made the following order:

            "Special leave petition is dismissed on merits. In the                H
    774                   SUPREMECOURTREPORTS [1992] SUPP. I S.C.R.

A           facts and circumstances of the present case. We are not
            inclined to inteifere with the judgment of the High Court
            except to a limited extent. We modify the direction made
            by the High Court requiring the petitioners to deposit a
            sum of Rs.79.100.50 P. for payment to respondent No.1
             Parmanand Lal, alleged to be due towards arrears of his
B           salary. We direct instead that the petitioners shall deposit
            half the amount for payment to respondent No.1 as arrears
             of his salary within one month from today, subject to
             adjustment.''

c                                                          (Emphasis supplied)

          Subsequently, some other Junior Engineers approached the Central
    Administrative Tribunal, Ernalmlam Bench, and sought relief on the basis
    of the Allahabad High Court judgment. The CAT allowed the applications
    and granted relief to the applicants before it.
D
          Some more Junior Engineers later on approached the Principal
    Bench of Central Administrative Tribunal seeking relief identical to that
    of P.N. Lal and Brij Mohan. The Principal Bench on 7.6.1991, by a detailed
    order, allowed the applications and issued directions for refutation of the
E   seniority keeping in view the relevant recruitment Rules and Para 206 of
    the manual. Since, the directions of the Principal· Bench dated 7.6.1991
    were allegedly not complied with, contempt petitions came to be filed and
    on notices being issued the Union of India and others, informed the
    Tribunal that they were in the process of revision the seniority of the entire
    cadre of TES (Group B) ao per the gnidelines contained in para 206. A
F   direction was issued to the respondents to complay with the orders of
    Central Administrative Tribunal within the time fixed by CAT. While the
    matters rested thus, the order of CAT dated 7.6.1991 was challenged in
    this Court both by the Union of india and JTOA (India) who had sought
    permission to file the SLP. The special leave petition Nos. 19716-19722 of
G   1991 were dismissed alongwith IA's on 6.1.1992.

          On 22.4.1992, some more applications were filed in the Central
    Administrative Tribunal, Principal Bench raising common- questions and
    seeking relief on the basis of the judgment of the Allahabad High Court
    and various ot~er orders rendered by different benches of CAT in identical
H   cases. The Forum, (petitioner herein), filed an application for intervention
               TELECOM OFFICERS v. U.0.1. [ANAND, J.]                    775

and opposed the grant of relief. The application of the Forum was rejected A
and relief was granted to the applicants before the CAT following the
judgment of the Allahabad High Court, against which the SLP had been
dismissed and the Judgment of the other Benches of CAT. It is, thereafter
that the present writ petition and the SLP against the order of CAT dated
22.4.1992 and the Transfer Petition have been filed by the Forum.
                                                                                B
      Mr. Gobinda Mukhoty, the learned senior counsel appearing for the
caveators, has raised a preliminary objection to the maintainability of the
present writ petition. It is argued that the petitioners had been set up only
for the purpose of getting a new lease in the litigation after the matters
stood concluded in the SLP's filed against the judgment of the Lucknow          C
Bench of the Allahabad High Court as well as against the judgment of the
Principal Bench of the Central Administrative Tribunal. Argued the
learned counsel that matters which stand concluded and the issues which
stand settled cannot be permitted to be reopened in the manner adopted
by the petitioners which was nothing but an abuse of the process of the         D
court because JTOA {India) bad espoused the cause of.all its members,
including those now constituting the Forum and after the battle was lost by
JTOA {India) the Forum had come up to reopen the concluded views.

       Mr. Ashok Desai, learned senior counsel appearing for the peti-
tioners sought to meet the objection by arguing tliat the petitioners were E
not parties either before the Allahabad High Court or the Central Ad-
ministrative Tribunal in the earlier cases of P,N, Lal and Brij Mohan or
Daljit Singh & Ors. and since their interests are adversely affected by the
order made in those cases, they hava a right to get the matter examined by
this court moreso because the order of CAT and the Allahabad High Court F
effect a very large number junior engineers and the Bangalore Bench had
struck a divergent note. He submitted that the point of view of the
petitioners, who form a class by themselves, i.e. those who had been
recruited earlier but had passed the departmental qualifying examination
subsequent to those promoted earlier then them, was not considered or
discussed in the earlier cases and therefore they cannot be debarred either G
by the principle of resjudicata or even constructive resjudicata to agitate
their grievances and that the dismissal of the special leave petitions by this
Court in limine cannot be treated to be any precedent so as to bind the
petitioners. It was submitted that since the views which the petitioners are
now projecting particularly based on the ·1966 instructions and Para 32E H
    776                   SUPREME COURT REPORTS [19~2] SUPP. I S.C.R.

A of the P&T Manual read with the Recuitment Rules of 1966 and 1981 were
    not considered by the Allahabad Hi~ Court or by the CAT, the petitioners
    are entitled to maintain the writ petition particularly to demonstrate that
    Para 206 of the manual, on the basis of which relief was granted by the
    High Court and the CAT, could not be pressed into aid for purposes of
B   fixation of inter se seniority and future promotions.

           In order of appreciate the controversy regarding the maintainability
    of the writ petition, let us first find out as to who the petitioners are and
    whethtr their view point had been considered and decided in the earlier
    litigation or not.
c          The writ petition has been tiled in a representative capacity by the
    Forum through Shri Satpal Batra, President and some other engineers. Mr.
    Mukhoty drew our attention to a circular issued on 16.3.1992 by the Forum.
    The correctness or the existence of the circular was not disputed by Mr.
    Desai on a specific querry put to him by the Bench. According to the
D   circular, the Forum was set-up to take legal action to prevent the im-
    plementation by the department of para 206 of P&T Manual, Vol.IV; to
    ensure that settled seniority position of TES (Group B} Officers is not
    unsettled and that no regular AE is demoted. The life of tl1e Forum,
    according to the circular, is co-extensive with the time it may take to resolve
E   the issues relating to seniority. It has been stated in the circular that SLP's
    tiled by JTOA (India) and the department in the Supreme Court against
    recasting of seniority was rejected on 6.1.1992. It is also stated that after
    the dismissal of the SLP the department tiled statement in various Benches
    of Central Administrative Tribunal stating that they require 6/9 months
    time for recasting the seniority of TES (Group B) Officers and for prepara-
F   tion of the eligibility list of qualified JTO's as per para 206 of P&T Manual.
    Vol. IV i.e. as per the year of passing the examination. The circular then
    goes on to say:

             "A. The Forum is also involved in Principal Bench, CAT,
             New Delhi in two cases. Unfortunately, TESA (I) leader·
G
             ship has taken a very damaging stand by supporting Para
             206 and opposing us in CAT ..........

             B. It appears now that after the dismissal of the SLP, the
             JTOA (I) has some genuine limitations in resorting to
H            further legal steps in addition to the on-going cases in
               TELECOM OFFICERS v. U.0.1.[ANAND,J.]                      777
        CAT. Therefore, the onus to protect the seniority and or                A
        further promotion has been shifted to the affected
        groups ....... .

        C. Therefore, the picture before us is very grim. As per
        legal opinion, the outcome of the pending CAT cases is
        totally uncertain. We consulted some senior advocates of                B
        the Supreme Court. Accourding to the senior advocates,
        there is bright chance if we take up the case in Supreme
        Court by filing cases on behalf of more than at least 200
        affected people."
                                                                                c
It is, thus, obvious that the petitioners cause was being espoused by JTOA
(India) in the earlier litigation but realising the "limitations" of JTOA
(India) to take further steps after the special leave petitions filed by the
Union of India and the JTOA (India), allongwith an application seeking
leave of the court to file the SLP, were dismissed by this Court, they have     D
come forward to have the matter 'reconsidered' and 'reviewed'. Statutory
Rules and instructions, relied upon now, had been brought to the notice
of the High Court and CAT and the judgments had been rendered after
considering the same. The argument to the contrary has been advanced
only to reopen the issues. This effort is amply exposed by the relief claimed
in the writ-petition even if we ignore the rather indiscreet language used      E
in various prayers made as ext~acted above.

       In the writ petition, the petitioner Forum has not disclosed its status.
It filed I.A. No.3/92 alongwith the writ petition seeking permission to sue
in a representative capacity. In paragraph 2 of that application, it is stated F
that the petitioners form class of persons who have cleared the departmen-
tal examination in the second and subsequent attempts from the time they
first became eligible to appear for the qualifying examination and that they
want their seniority to be fixed on the basis of their year of recruitment
after qualifying in the test, ignoring the year when they qualified the
departmental exatrination by ignoring Para 206 of the Manual which stands G
in their way. The Forum, as would appear from the circular, has come into
being for the limited purposes stated therein. While it is correct that the
Forum and the petitioners, excepting a few, were not parties in their
individual capacity in the earlier litigatior.. before the CAT or this Court
since obviously the Forum was not even in existence at that time, but their     H
     778                  SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A cause was being espoused by their association JTOA (India) which had
     appeared before the CAT as well as filed an SLP in this Court·against the
     order of CAT dated 7.6.1991. JTOA (India) had in the SLP projected the
     same view point and highlighted the same views as are being projected now
     in the writ petition. The correctness of the Allahabad High Court judgment
B    and CAT was unsuccessfully assailed in the previous litigation. The SLP
     filed by JTOA (India) through Mr. N.S Das Bahal Advocate and the Union
     of India was dismissed by this Court on 6.1.1992 and the following order
     was made:

             "These Special Leave Petitions are directed against the
c            judgment of the Central Administrative Tribunal, Prin-
             cipal Bench, Delhi dated June 7, 1991. The Principal
             Bench has followed the judgment of the Allahabad High
             Court in Writ Petition 2739 and 3652 of 1981 decided on
             February 20, 1985 SLP (c) nos.3384-86/86 against the
             judgment of the Allahabad High Court have already been
D.           dimissed by this Court on April 8, 1986. We see no
             grounds to interfere. Special Leave Petitions are dis-
             missed."

     This order was made after hearing all the parties including the counsel for
E ITOA (India) and noticing the earlier litigation on the subject.
          We are unable to agree with Mr. Desai that the judgment of the
     Allahabad High Court had not acquired any finality because the SLP
     against the same had been dismissed in limine.

F          The order of the Division Bench of this Court in SLP Nos. 3384-86
     of 1986 (supra) unmistakably shows that the dismissal of the SLP though
     in limine was on 'merits' and the Court declined to interfere with the
     impugned judgment of the Allahabad High Court except to a limited extent
     as noticed therein.

G          The issue which has been high-lighted in the present petition in
     actual substance is only that the ·year of recruitment, irrespective of the
     year of qualifying the departmental examination, should form the basis for
     promotion and fixation of inter se seniority ignoring para 206 of the manual.
     Reliance has been placed in that behalf on the recruitment Rules of 1966.
H    1981 and the executive instructions. These issues including Rules and
              TELECOM OFFICERS v. U.0.1. [ANAND,J.]                     779

instructions were directly and substantially projected in the earlier litiga- A
lion including the one to which JTOA (India) was a party, as a reference
to the memo of SLP filed by it discloses. It is, therefore, impermissible now
for the Forum to make attempts in this manner to have the very same
matter reopened by asserting that.their view point had not been projected
in the earlier litigation, when admittedly JTOA {India) of which the Forum . B
forms a part, had projected that view point though unsuccessfully. The
Union of India had also, as already noticed, put up the same pleas in the
SLP which are being raised now by the petitioners. It is, therefore, incor-
rect to say that the view now set up by the Forum was not asserted or
considered in the earlier litigation at the instance of parties representing
the interest of the subsequenlty formed forum comprising some members C
of JTOA (India).

      Besides, while considering the intervention application in the batch
of 29 OA's, the Central Administrative Tribunal again noticed the
grievance of the Forum, and its vehement opposition to the applications.        D
The Tribunal, after a detailed discussion observed that it was not impressed
by the contention raised on behalf of the Forum that all aspects of the
matter had not been brought to the notice of the Allahabad High Court,
or the Tribunal or the Supreme Court in the earlier round of litigation. The
plea that the dismissal of the SLPs in 1986 and 1991 had not given finality
to the controversy was rejected. The Tribunal also considered the submis-       E
sion made on behalf of the Forum that giving promotions and fixation of
seniority on the basis of the year of passing the qualifying the departmental
examination and not on the basis of the year of recruitment may, at this
stage, entail large scale reversions giving rise to wide-spread discontent-
ment and with a view to mitigate the hardship and to do substantial justice     F
between the parties, in paragraph 17 of its order dated 22.4.1992, the CAT
observed:


        "In case the redrawing of the semortty list results in
        reversion of officers who had been duly promoted already,               G
        we are of the opinion tha~ in all fairness, their interests
        sh<mld be safeguarded at least to the extent of protecting
        the pay actually drawn by them, if the creation of the
        requisite number of super-numerary posts is not found to
        be feasible from the administrative angle."                             H
     780                  SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A           We have perused the application for intervention filed by the Forum
     before the Principal Bench of the CAT and find that almost all the pleas
     which have now been raised in the present writ petition had been raised
     therein. The grievenace projected in the present writ petition was squarely
     projected in that application also and the issues now sought to be raised
l3   were directly and substantially again raised in that application, not-
     withstanding the dismissal of the SLP of Union of India and JTOA (India}
     by this Court in 1991. The thrust of the petitioners in that application was
     that para 206 pf the manual was only in the nature of an instruction and
     could not prevail over the statutory Rules of 1966 and 1981 or the executive
     instructions issued thereunder and that the judgment of the Principal
C    Bench, the Ernakulam Bench as also of the Allahabad High Court had
     been rendered, ignoring those statutory rules and executive instructions
     resulting in wrong orders being made and therefore none of those judg-
     ments could bind the petitioners. It was also maintained that the dismissal
     of the special .leave petitions against the. judgment of the Allahabad High
D    Court and the CAT could not be treated as any precedent as the dismissal
     of the SLP was not on merits on either of the two occasions.

           The Tribunal after a detailed consideration of the applications and
     arguments made in support of the intervention application opined that the
     decision of the Allahabad High Court laid down good law and constituted
E    good precedent to be followed in similar cases. The Tribunal then ob-
     served:

             'We reject the contentions of the interveners to the con-
             trary and further hold that having urged before the
             Supreme Court their various contentions and their SLP
F            h.ving been dismissed by the Supreme Court, they cannot
             reagitate the matter before us. We, therefore, dismiss MP
             Nos.33%, 3397, 3493 and 3494 of 1991 in OA 2407 of 1988
             as being devoid of any merit."

G          We may at this stage also point out that the relief to the applicants
     before the Bangalore Bench of CAT, which according to the petitioners
     had taken a contrary view, was denied on the facts of that case and that
     Bench had also observed:

              "We cannot and do not sit in judgment on the orders of
H             the High Court and the Supreme Court in favour of
                   TELECOM OFFICERS v. U.0.1. [ANAND, J.]                      781

             respondents 4 and 5. The order of Government only                        A
             implements the orders of the courts that had become final
             and binding on them."

            While not disputing that in the intervention application filed by the
    Forum before CAT, similar pleas had been raised. Mr. Desai, submitted
    that since the application filed by the petitioners for intervention was          B
    dismissed by CAT, it could not be said that the petitioners had been heard
    in the matter or that the_CAT had rendered any judgment on merits after
    hearing them with regard to the pleas raised by them in the application.
    We are unable to agree. The order of CAT reveals that it had considered
    various pleas raised by the Forum and had rejected the same. The                  C
    petitioners cannot, therefore, say that they had not been heard by the CAT
    in respect of the issues now projected in the writ petition. The.Forum even
    after the filing of the and during the pendency of this writ petition, the
    special leave petition again! the order of the Tribunal dated 22.4.1992 and
    the transfer application in this Court, has filed Original Application            D
    No.1707 of 1992 before the CAT. A copy of that application has been filed
    by the caveators, though the petitioners adopted the attitude of complete
    silence in regard thereto throughout the hearing of the writ petition by this
    Bench. That application, leaving aside the question of propriety and legality
    of filing the same, while the matters were pending in this Court and seeking
    same relief as claimed in this writ petition, is rather revealing. We find that   E
    Shri Satpal Batra through whom the Forum, has filed this writ petition and
    who is also petitioner No.2 in bis individual capacity in the writ petition,
    has filed the Original Application No.1707/92. In paragraph 57 of that OA
    with reference to the ear lier intervention application it is stated thus:
                                                                                      F
             "The said OA was clubbed together with 28 other similar
             OAs and the said batch of OAS were fixed for final
             hearing. On 23.10.1991 the present applicant No.1, Junior
             Telecom Officers Forum for Redressal of Grievances, an
             association, comprising JTOs, AEs and DEs working in
             the Department of Telecommunication, Government of                       G
             India, for and on behalf of about 6000 employees moved
             an application in representative capacity for impleadment
             as respondents, opposing the grant of reliefs prayed for
             by the applicants. The said applicalion being M.P. No.3396

t            of 1991 along with applicalion M.P. No. 3397 of 1991 under               H
    782                  SUPREME COURT REPORTS [1992] SUPP. I S.C.R.

A           Rule 4 of the CA T Rules were taken on board and heard
            along with the batch of 29 Original Applications. A copy of
            MPS 3396-97 of 1991 dated 23.10.1991 are annexed hereto
            and marked as Annexure - 18 Collectively."

                                                               Emphasis ours)
B
    That the petitioners had in those applications for intervention, during the
    arguments before CAT, raised all the pleas which they are now projecting
    is amply borne out from para 58 of the OA 1707/92 and it would be useful
    to extract the same hereunder:
c
            "The Applicant No.1 contended before the CAT Principal
            Bench, New Delhi that the judgment of the Allahabad
            High Court and the decisions of the said Principal Bench
            do not constitute good precedents and that the matter
D           should be considered on merits afresh since there was
            suppression of material facts/Rules by Shri PN Lal and
            Brij Mohan before the Allahabad High Court and the
            Court did not have any occasion to deal with the entire
            controversy as has arisen now. The applicants also con-
            tended that in any case the Allahabad High Court judg-
E           ment could not act as a precedent over subsequent events
            which followed including coming into effect of 1966 Rules
            and various memorandum pursuant thereto, the 1981 rules
            and amendments thereto as also complete breakdown of
            Rule insofar as mandatory provision of holding Depart-
F           mental Qualifying Exam every calendar year in accord-
            ance with Appendix I Rule 3 of 1966 Rules and Appendix
            1 Rule of the 1981 Rules was not followed and no exam
            was held from the year 1981 to 1984. All JTOs recruited
            in the year 1973, 1974, 1975, 1976, 1977, 1978, 1979, in one
            lot were p11t in for appearance in the exam held in 1985
G           for the first time, and consequently suffered extreme
            prejudice. It was also contended that the department was
            grossly negligent in .conducting the cases and it was on
            their default that things had come to such a pass. Further-
            more, it was contended that para 206 was not properly
H           interpreted by various Tribunals and when read with Paras
               TELECOM OFFICERS v. U.0.1. [ANAND, J.]                       783

         32 E (b) (ii) and 181 to 204 it became apparent that 1966                 A
         and 1981 Rules and the memorandum issued thereunder,
         the rule of seniority gaining priority over year of passing
         the exam held good. It was also argued that the judgments
         of the Hon'ble Supreme Court dismissing SLPs of Union
         of India in SLP Nos. 3384-86 of 1986 and SLP Nos.19716-
         22 of 1991 did not stand in the way of the applicant
                                                                                   B
         contention. Further all such adversely affected persons
         were neither given notice of the same nor were parties to
         the said litigation at any stage."

Thus, on the petitioners own showing all the issues which they are now             C
seeking to raise had been raised in their intervention application which had
been heard along with the original applications and rejected on 22.4.1992,
after the intervention application had been taken 'on board' by CAT also.
It is, therefore, to say the least, improper, for the petitioners to now urge
that they had no occasion or opportunity to raise the issues and conten-           D
tions, as now raised, before the Principal Bench of the CAT or that the
same were not heard and considered on merits. Their assertion is, thus,
not correct. It is also interesting to note that in paragraph 80 of the Original
Application No.1707/92, the petitioners have this to state:

         "That the Applicants state that they have filed a writ                    E
         petition before the Hon'ble Supreme Court along with a
         Transfer Petition under Article 139A (1) of the Constitu-
         tion of India and a Special Leave Petition against order
         dated 22.4.1992 of this Hon'ble Court, on the subject
         matter in issue before this Hon'ble Court in the present                  F
         application based on identical issues and cause of action,
         and are pending therein presently."

Which goes to show that OA 1707/92 was filed while the proceedings were
pending in this Court. The prayers made in paragraph 81 of Original
Application No.1707/92 are a verbatim reproduction of the prayers in the G
present writ petition, as noticed in the earlier part of this order. How the
petitioners chose to pursue different remedies at the same time in respect
of the. same matter in different forums is not at all understandable? Except
to .record our disapproval and concern on this conduct of the Forum, we
need say no more as it exposes the effort of the Forum to somehow or the H
    784                   SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A other reagitate the concluded issues and frustrate the orders already made
    by the Allahabad High Court, different Benches of CAT and upheld by
    this Court.

           Though learned counsel for the parties have referred to some judg-
    ments on the questions of resjudicata, constructive resjudicala and the
B   binding nature of a precedent, we do not think it is necessary to refer to
    any of those judgments as in the facts and circumstances of this case, and
    for what we have noticed above, we are satisfied that the issues which the
    petitioners now wish to raise had been agitated directly and substantially
    not only by JTOA, which was espousing their cause in the earlier litigation
C   right up to this Court, but also by the Union India. The order made by this
    Court in SLP(c) Nos. 3384-86 of 1986 interfering with the judgment of the
    Allahabad High Court to a limited extent is an order made on the merits
    of the case as is quite apparent from the expressions used in that order
    and is a binding precedent. The issues were again raised and agitated by
    the Union of India as well as JTOA in SLP (c) Nos.19716-22/91 against
D   the judgment of Prinicipal Bench of CAT dated 7.6.1991 unsu=ssfully.
    Those judgments have settle the controversy and have become final and
    binding in respect of the questions debated therein and the issues settled
    thereby and as was observed by a Constitution Bench of this Court in
    Mukhanlal Waza & Ors. v. State of Jammu & Kashmir & Ors., [1971) 3 SCR
E   832 the Union of India and its officers are bow1d to follow the same even
    if the members of the Forwn or a majority of the engineers were not
    individually parties in the case before the Allahabad High Court. Since, the
    issues now raised have been agitated twice over, it is not permissible for
    the petitioners to onc.e again reagitate the matter by coming now under the
    'cloak' of a Forum. The perliminary objection, therefore, must succeed and
F   is upheld. The writ petition is accordingly held not maintainable and
    dismissed.

           In view of our discussion above relating to writ petition No.460 of
     1992, the special leave petition Nos.9063-64 of 1992 also fail and are
G    dismissed as the issues involved in both are common and identical.

           We also do not find any justification for transfer of the various cases
     referred to in Transfer Petition (c) No.417 of 1992 to this Court. Transfer
     Petition is also therefore dismissed .

     V.P.R.                                                   Petitions dismissed.