2006 Supreme(SC) 6

2006(1) Supreme 252
Supreme Court of India
(From Orissa High Court)
S.B. Sinha and P.P. Naolekar, JJ.
Sarat Chandra Mishra & Ors. —Appellants
versus
State of Orissa & Ors. —Respondents
Civil Appeal No. 5087 of 2002
Decided on 3-1-2006
Counsel for the Parties :
For the Appellants : Raju Ramachandran, Sr. Advocate Jana Kalyan Das, Advocate.
For the Respondents : Janaranjan Das, Swetaketu Mishra, S.B. Upadhyay, Sanjay K. Das and Ajay Choudhary Advocates.

Important point
The Supreme Court cannot exercise its jurisdiction under Article 142 of the Constitution of India in violation of the statutory provisions and that too at the distant time so as to unsettle a settled thing.

Headnote:(i) Service Law—Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Lower Division Assistant in the Office of the Department of Secretariat) Rules, 1951—Seniority of Ministerial Officers—Appellants and private respondents were appointed as Lower Division Assistants/Junior Assistants between the period 28.9.1966 and 5.9.1973—To avail promotional opportunities, appointees were required to pass an examination known as ‘STC Examination’—All the employees admitted were promoted after they had passed the said examination—Private respondents passed the examination before the appellants and were promoted earlier—In gradation list published on 1.1.1984, respondents were shown senior to appellants—Appellants contended that having regard to the fact that seniority of ministerial officers was to be reckoned on the basis of ranks obtained by them in PSC examination, respondents could not have been treated to be senior—State issued a circular dated 21.2.1989 purporting to set up new principles for fixing seniority in the cadre of Lower Grade Assistants in the higher grade—A corrected Gradation list was published on 22.8.1990—Legality and validity of the said circular challenged by respondents—High Court held 1990 gradation list published pursuant to the circular letter dated 21.2.1989 as illegal, liable to be quashed—It was held that all future promotions above the rank of Senior Assistants and Section Officer, Level II shall be governed by the gradation list made in the year 1984—State of Orissa issued a circular letter stating that Gradation list dated 1.1.1984 is hereby restored—Whether Tribunal had jurisdiction to reopen the issue—(No)—Constitution of India—Article 142.

       Held : Two sets of applications were filed before the Tribunal at the first instance; one questioning the legality of the Common Gradation List of the year 01.01.1984; and another questioning the legality of the circular letter dated 21.02.1989 and consequent publication of the Gradation List dated 22.08.1990. Both the sets of applications were heard together. Whereas the original applications filed by the respondents were allowed, those filed by some of the Appellants were dismissed. One special leave petition was filed against that part of the judgment and order of the Tribunal, whereby only O.A.No. 90 of 1990 was dismissed. The State of Orissa or for that matter, the appellants herein did not file any special leave petition before this Court questioning the said order except one Suresh Kumar Chhotray. The judgment and order of the Tribunal dated 09.03.1992 passed in O.A.No. 1200 of 1990, thus, attained finality. The principle of res judicata would, therefore, apply in the instant case. The applicability of the principle of res judicata in a proceeding before the Tribunal is not disputed. It is also not a case where the jurisdiction of the Tribunal is in question. This Court while passing its order dated 05.01.1993 did not and could not have dispensed with the applicability of the principle of res judicata, as the right of the respondents derived from the judgment and order of the Tribunal dated 09.03.1992 could not have been taken away. In any event, the decision of the Tribunal in O.A.No. 90 of 1990 wherein, as noticed supra, some of the appellants had questioned the validity or otherwise of the Gradation List as contained in Home Department’s letter dated 27.09.1984 attained finality. The judgment and order passed in the said O.A.No. 90 of 1990 would indisputably be binding on the State and the appellants herein and, thus, it is not open to them to raise the said question once again. Furthermore the seniority list which was revised following the Home Department’s letter dated 21.02.1989 and consequent fixation of seniority in terms of Home Department’s letters dated 22.05.1990 and 22.08.1990 were declared to be illegal. It is in the aforementioned backdrop, the order of this Court dated 05.01.1993 is required to be construed. The judgment of a court, it is well settled, cannot be read as a statute. While construing a judgment, it may be presumed that the same has been rendered in accordance with law. (Paras 10 to 13)

       The jurisdiction of this Court under Article 142 of the Constitution of India is not meant to be exercised in a situation of this nature. Mr. Ramachandran is not correct in contending that the appellants did not get any opportunity to canvass their case at all. They had such an opportunity before the Tribunal. They, it will bear repetition to state, except one did not assail the findings of the Tribunal. The order of this Court dated 05.01.1993 must be construed having regard to the entire factual and legal backdrop. It is no doubt true that this Court refused to determine the matter on merit and came to the opinion that the special leave petition had become infructuous in view of the order of the State Government dated 12.08.1992, but the fact remains that even before this Court the said order of the State Government was not questioned. (Para 16)

       This Court by its order, in our considered opinion, had no intention to give liberty to the appellants herein to reopen the question as regard the validity or otherwise of the Gradation List of 1984 which, as noticed hereinbefore, became final and binding. Once the said order attained finality, this Court could not have allowed the parties to approach the Tribunal once again indirectly it could not have done so directly. As the principle of res judicata was applicable, the Tribunal had no jurisdiction to reopen the issue. This Court could not and did not confer a jurisdiction upon the Tribunal which it did not have. (Para 17)

       (ii) Constitution of India—Article 142—Inherent Powers—Supreme Court cannot exercise its jurisdiction under Article 142 of the Constitution in violation of the statutory provisions and that too at this distant time so as to unsettle a settled thing. (Para 18)