IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26/08/2003 Coram The Honourable Mr. Justice V.S. SIRPURKAR and The Honourable Mr. Justice M. THANIKACHALAM W.P. No.18619 of 1998 and W.P.Nos. 18620, 18621, 18632, 18633, 18638, 18653, 18505, 18506 AND 19737 OF 1998 and WMP Nos.28268, 28270, 28273, 28286, 28289, 28296, 28317, 28049, 28052, 29904, 29765, 29766, 29767, 29768, 29769, 29770, 29771, 29773, 29764 and 24235 of 1999 W.P. No.18619 of 1998: C. Guruvaboyan ..... Petitioner -Vs- 1. The Director of Survey and Settlement, Chennai 2. The Assistant Director of Survey and Land Records, Salem 3. The Registrar Tamil Nadu State Administrative Tribunal Chennai 104 4. M. Pachiannan 5. P. Karuppannan 6. K. Subramaniam 7. S.R. Doraisamy 8. K. Natesan 9. C. Alavamuthu 10. M. Muthusamy 11. R. Tamilselvan 12. M. Palanivelan 13. S. Balamurugan 14. A. Chandrasekaran 15. A. Balaji 16. S. Marimuthu (respondents 4 to 16 are Surveyors/ Draftsman/Land Record Draftsman in the office of the Assistant Director of Survey and Land Records, Salem) ..... Respondents Petition under Art.226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus as stated in the petition For Petitioners :: Mr. R. Thiagarajan, Senior Counsel for Mr. M. Kandasamy Mr. L. Chandrakumar For Respondents :: Mr. S.T.S. Murthy, Govt. Advocate for respondents 1 and 2 Mr. K.S. Viswanathan for respondents 4 to 12 :ORDER V.S. SIRPURKAR, J. This judgment will dispose of the aforesaid ten writ petitions as the subject is common. In all the writ petitions, the petitioners are working in the Survey and Land Department in the posts of Firka Surveyors or Sub Inspectors of Survey. They challenge the common order passed by the Tamil Nadu Administrative Tribunal (in short 'the Tribunal'), dismissing the original applications filed by them. In those original applications, the petitioners had challenged three proceedings which had the effect of depriving them of their original seniority and showing them as juniors which could result in their reversions as also could adversely affect their monetary benefits. The petitioners in effect challenged the order dated 22-9-1995 issued by the Director of Survey and Settlement, Chennai in which, the said authority crystallized the principles of fixing the seniority, the order and the seniority list dated 19-1-1996 wherein, the Assistant Director, in pursuance of the aforementioned order dated 22-9-1995, fixing the temporary seniority of the petitioners, showing them much junior than their original positions and the final order dated 10-10-1996, which is a confirmed seniority list, which has been finalised even after the objections raised by the petitioners. Basically, the petitioners' seniority is fixed on their initial entry into the service in the post of Surveyor on consolidated salary. 2. For better appreciation of the controversy, the following facts are necessary: 2.1. All the petitioners came to be appointed on 28-3-1983 as Surveyors (hereinafter called 'Consolidated Surveyors') in the Salem District, which cadre is a District cadre, and they were receiving the consolidated salary of Rs.450/-. Obviously, they were not in the regular cadre. Respondents in these petitions are also the persons who were appointed like the petitioners in the post of Surveyors on consolidated salary but, it is an admitted position that the respondents were admitted earlier to the petitioners. Petitioners were brought on regular time scale with effect from 1-7-1984 while the respondents lagged behind and were brought on the regular time scale only on 28-3-1988. Petitioners were brought on the regular time scale in pursuance of G.O. Ms. No.910 dated 10-8-1983. Petitioners were further regularised by two Government Orders, viz. G.O. Ms. No.626 dated 16-4-1990 and G.O. Ms. No.851 dated 23-5-1990 but, with effect from 1-7-1 984. Very significantly, the respondents were, however, not regularised like the petitioners. Before that, on 23-8-1985, a seniority list came to be published of the Surveyors/Drftsman selected from among the consolidated Surveyors/Draftsman in the district of Salem and who were appointed on the time scale of pay under Rule 10(a)(i) of the general rules. They were in all 115 persons and the petitioners are to be found in the said list. Admittedly, respondents 4 to 16 are not to be found in this seniority list because, obviously, they were not brought on the time scale by then. 2.2. There was a scheme introduced in the year 1987 called ' Restoration of Maintenance Scheme' in which a new post was created called ' Firka Surveyors' and the petitioners came to be promoted as Firka Surveyors on 6-7-1988. Subsequently, all the petitioners came to be promoted further as the Sub Inspectors of Survey on 6-4-1991. So far the respondents were neither brought on the time scale nor offered promotions like petitioners. It is an admitted position that respondents 4 to 16 were brought on time scale on 28-3-1988 and were thereafter given the promotions as Firka Surveyors. 2.3. In the year 1990 an original application (O.A. No.199) came to be filed at the instance of the four applicants of South Arcot District wherein, a challenge was made to an order dated 30-11-1989, passed by the Director of Survey and Land Records whereby he appointed 29 persons on time scale. In these 29 persons, 7 were ladies who were appointed on the principle of 30% reservation for women. The applicants contended that these 7 ladies were junior to them and yet they came to be appointed ignoring their seniority and that there could not have been any such reservation because the principle of reservation apply only to vacancies filled up by recruitment and in fact, the appointments were from the post of Consolidated Surveyors to the Timescale Surveyors and, therefore, it would be a promotion and hence, the principle of reservation would not be applicable thereto. 2.4. The Tribunal allowed this application by its order dated 9-9-19 99. In this, the Tribunal found that the posts of Surveyors were within the purview of Tamil Nadu Public Service Commission and the concerned persons were appointed on consolidated pay in regular vacancies but only on temporary basis. The Tribunal further held that though these persons were on consolidated pay and not on time-scale, they were no less department personnel and, therefore, their appointment in the time-scale posts would not be governed by the principles of reservation. According to the Tribunal, what was being done in offering the time-scale to these persons was only the change of terms of service of these persons. The Tribunal, therefore, held: "For this reason we direct that as far as the temporary appointments are concerned only the seniority among the person on a consolidated pay with reference to the date of their appointment would be relevant. In fairness, when a category employed on a temporary basis is sought to be given better terms, that should be viewed as a fresh appointment. Therefore, we direct that the temporary appointment in the time scale of pay in accordance with the orders in G.O. Ms. No.910 C.T. & R.E. dated 10-8-1983 may be made strictly in accordance with the seniority among the personnel on consolidated pay." 2.5. It has come on record that this order was challenged before the Supreme Court by the Government but, that was dismissed in limine in motion hearing. It has also come on record that this order was sought to be reviewed on the ground that it would create enormous difficulties. However, that review application has also been dismissed and it is further brought on record that even the challenge before the Supreme Court did not succeed which dismissed the Special Leave Petition in limine. 2.6. This probably prompted the Director to pass the first impugned order dated 22-9-1995. The Director took this order to be a fiat issued by the Tribunal to re-arrange the whole seniority list of all the persons though the Tribunal, in the said original application, called upon to decide only the question as to whether the said lady employees could have been promoted on the basis of reservation. 2.7. Taking a cue from the order passed by the Director, the Assistant Director then re-arranged the seniority and thereby treated the petitioners to be juniors to the persons who were appointed earlier in the post of Consolidated Surveyors. Though the order of the Tribunal was passed in the year 1991, the Director passed the first order on 22-9-1995, after about five years and the Assistant Director on 10-10 -1996 whereby, the petitioners, who were higher in the seniority list, were shown down below whereas, the respondents were shown much above. 2.8. In short, the petitioners, who had the seniority in time-scale from 1-7-1984, were shown to have their entry into the time-scale on 28-3-1988 whereas the respondents, who were brought on time-scale on 28-3-1988 were shown as having earned their e-scale on 1-7-1984. 2.9. The objections raised by the petitioners were also not accepted and, therefore, the petitioners were driven to file the original applications as they did. The respondents chose to make an impleadment application before the Tribunal and got themselves impleaded as party-respondents. 2.10. The Tribunal dismissed this original application taking the view predominantly that the seniority in the time scale was correctly decided and the principle of seniority in the appointment for the post of consolidated surveyors was the only correct principle for deciding the seniority in the regular cadre. The Tribunal has also heavily relied on the fact that its' earlier order in O.A. No.199 of 1990 was confirmed by the Supreme Court inasmuch as the Special Leave Petition was dismissed against the same. The petitioners have now come before us challenging the order of the Tribunal. 3. Shri R. Thiagarajan, learned senior counsel and Shri M. Kandasamy, learned counsel appearing for the petitioners firstly contend that though the petitioners were appointed on the post of Consolidated Surveyors somewhat after a few months than the respondents, the fact remains that the petitioners were selected out of these Consolidated Surveyors serving in Salem District on the basis of their performance and, therefore, the petitioners were meritorious candidates so as to be awarded the time-scale even earlier to the respondents. Learned senior counsel points out that the award of the time-scale, almost four years earlier to the respondents, was never demurred by the respondents. Learned senior counsel further points out that in all these years, the petitioners, who were brought on the time-scale by their selection, got much more salary than the respondents and yet the respondent had kept quiet. 4. Learned counsel relied very heavily on the instructions issued by the Department in that behalf which are to be found in the Government letter dated 6-10-1983 and more particularly paragraph 5, which runs as under: "The Contract employee will be appointed in the time-scale post in accordance with (a) rule of reservation and (b) seniority as determined under item 1 above. Provided that a person who has not given the prescribed out-turn of work in the preceding six months shall not be appointed." (emphasis supplied) Learned counsel, therefore, says that it was obvious that the respondents were not given the time-scale probably because they had not given the prescribed turnout of work as required by these instructions and, therefore, there could be no question of the respondents being treated senior who were in fact superseded because of their not having given the required turnout. The further contention of the learned counsel is that it is for this reason that in the seniority list dated 2 8-8-1993, the petitioners were shown and the respondents were not shown. 5. It is also suggested that even the regularisation awarded to the petitioners was with effect from 1-7-1984 which decision was also never challenged by the respondents and even the further promotions granted to the petitioners as Firka Surveyors on 6-7-1988 and to the post of Sub Inspector on 6-4-1991 was also not challenged. The learned counsel, therefore, submitted that in fact right from 1983 upto 199 6, i.e. for sixteen long years, the petitioners were not only working as the senior-employees to the respondents but, apart from being granted the regular time-scale, they were regularised earlier and given not one but two promotions which were never demurred by the respondents and, therefore, it was not feasible on the part of the respondents to upset the whole seniority that too after the period of more than thirteen years because of which, obviously, the petitioners would not only be required to suffer wage-cut but also to face reversions in some cases. 6. Learned counsel pointed out that the reliance on the part of the Government on the order of the Tribunal in O.A. No.199 of 1990 was wholly uncalled for and so also the Tribunal had never addressed this question of promotion having been given to the petitioners not on the basis of reservation but on the basis of their performance. Learned counsel pointed out that the Tribunal in O.A. No.199 of 1990 was faced with the sole question that too regarding the seven lady employees who were appointed on the basis of the reservation and therefore that decision should have been read only to the extent of the question decided and not beyond the same. Learned counsel severely criticised the impugned order of the Director in drawing conclusions from the order of the Tribunal in O.A. No.199 of 1990 and pointed out that it was impermissible. 7. Learned counsel further severely criticised the Tribunal's order on the ground that the Tribunal had also committed an error in treating its earlier order as the order of the Supreme Court merely because the Supreme Court had dismissed the Special Leave Petition against the same in limine. The contention is that by the dismissal in limine, all that the Supreme Court had indicated was that the Special Leave Petition was not entertainable against the judgment. The State Government authorities went a step ahead and drew its own conclusions from that judgment and have tried to implement the same and thereby the whole exercise has become arbitrary and hence discriminatory. According to the learned counsel, at any rate, even if that judgment was to be followed by the State Government it should have been done not retrospectively but prospectively. 8. As against this, Shri Viswanathan, learned counsel appearing for the respondents supported the Government's stand as also the impugned order of the Tribunal. His contention mainly is that the award of time-scale to the petitioners in itself was bad because it could not be done ignoring the seniority under G.O. Ms. No.910 dated 10-8-1983 which alone decided the principles on the basis of which the timescales were to be granted to the Consolidated Surveyors. Learned counsel points out that in the service jurisprudence, if a particular benefit was awarded, accepting a certain principle, the same would be applicable to all whether they were parties to the said decision or not. Learned counsel further argues that there was nothing wrong in fixing the seniority as the principle for promotion and if the petitioners were given an unfair advantage over and above the respondent, all that was being done by the State Government was to correct their mistake and, therefore, there was no question the exercise being arbitrary or discriminatory. Learned counsel further argues that even further promotions which were awarded to the petitioners were purely on the basis of seniority and were of temporary nature without conferring any right on the petitioners and, therefore, the petitioners could not claim any vested right on the basis of those promotions and, therefore, the exercise by the State Government was correct and the impugned order of the Tribunal was also correct. 9. Learned Government Advocate supported the impugned order and adopted the arguments made by Shri Viswanathan, learned counsel for the respondents. The Government has filed a counter-affidavit wherein, a clear-cut position has been taken that it was in pursuance of the order passed by the Tribunal and more particularly in O.A. No.199 of 1990 that the first impugned order dated 22-9 -1995 came to be passed by the Director providing the guidelines for the District Survey Unit offices and thereby directed to revise and regularise all the appointments made in the time-scale. 10. In their counter also, the Government has specifically mentioned that the Special Leave Petition against the aforementioned order of the Tribunal was dismissed by the Supreme Court. It is, therefore, obvious that the order of the Tribunal in O.A. No.199 of 1990 became raison d'etre for the subsequent order dated 22-9-1995 and it is obvious that the Government as also the Tribunal subsequently were driven by the fact that the Special Leave Petition against that order was dismissed. It will be, therefore, better for us to find out as to what is the real nature of the order of the Tribunal in O.A. No.199 of 1990. 11. When we closely look at the order of the Tribunal dated 9-9-19 91, it is obvious that there was a simple question raised as to whether there could be 30% reservation in favour of the seven ladyrespondents and could they steal a march on that basis over their senior colleagues like the applicants therein. All that the Tribunal said in that order was that the principle of reservation could not be made applicable because the grant of time-scale would be in the nature of promotion and, therefore, the principle of reservation would not be applicable to them. The Tribunal goes on to explain that merely because the applicants therein were on the consolidated pay and not on time-scale, they were no less department personnel and that since the regular posts were to be filled-up through Tamil Nadu Public Service Commission, such person could not be said to have been appointed by direct recruitment. According to the Tribunal, in the grant of regular time-scale all was done was only the change of terms of service. The Tribunal, therefore, did not accept the principle of reservation and, since the challenge was made on the basis of seniority, observed that the time-scale should be granted only on the basis of seniority. 12. Now it is trite principle in law that a judgment becomes binding only on the issues which fall before the Court for consideration. The inferences cannot be drawn from the judgment and those inferences cannot be held to be binding on the basis that they emanate from the judgment. That is exactly what has happened here. The Tribunal did not have before it the material or the necessary documents to consider the question which has fallen for consideration later on at the instance of the present petitioners. The Tribunal did not have before it the facts and the circumstances under which the persons like the petitioners came to be brought on time-scale even superseding the persons like the respondents. It cannot be disputed that there were departmental instructions dated 6-10-1983 wherein, there was a specific condition included that a person who did not give the prescribed turnout of work in the preceding six months would not be appointed in the regular time-scale. 13. We have already quoted paragraph 5 of the departmental instructions dated 6-10-1983 and it must be remembered that these instructions were the first in time after G.O. Ms. No.910 dated 10-8-1983 whereby it was decided to offer the time-scale to the Surveyors on consolidated pay. This direction in these guidelines was never in challenge nor was it ever fell for consideration of the Tribunal at any time though the question of issue of reservation and seniority as contemplated in G.O. Ms. No.910 dated 10-8-1983 was obliquely and partly decided by the Tribunal. 14. We cannot ignore the fact that the limited issue before the Tribunal was whether the junior lady employees could be allowed to supersede some senior employees on the principle of 30% reservation for women. In that the Tribunal merely decided that that reservation was not available to the concerned lady respondents. We fail to understand as to how this order of the Tribunal in O.A. No.199 of 1990 came to be treated as a general fiat. The reason for this is not far to see. The Government in the first instance and the Tribunal in the original application filed by the present applicants seem to have been impressed by the fact that the Special Leave Petition against this order was dismissed in limine by the Supreme Court. It has completely ignored that a dismissal by the Supreme Court in limine, though amounts to confirmation of the order challenged, the said order does not become the order of the Supreme Court. It can at the most be said that the Supreme Court did not find it fit to admit the Special Leave Petition against the impugned order, for whatever reason. The State Government as well as the Tribunal later on have committed an error in treating this order of the Tribunal to be the order of the Supreme Court. There is, therefore, there is a constant reference to the fact of the dismissal by the Supreme Court of the Special Leave Petition challenging the order of the Tribunal in O.A. No.199 of 1990. 15. In the reported decision in Supreme Court Employees Welfare Association v. Union of India (AIR 1990 SC 334), the position is clarified in paragraph 22 of the judgment. In this case also, the Supreme Court had summarily dismissed the Special Leave Petition filed against the earlier judgment of the Delhi High Court. When that dismissal was tried to be taken shelter, it was observed: "It is now a well settled principle of law that when a Special Leave Petition is summarily dismissed under Article 136 of the Constitution, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney General. In Indian Oil Corporation Ltd. v. State of Bihar, (19 86) 4 SCC 146:(AIR 1986 SC 1780) it has been held by this Court that the dismissal of a Special Leave Petition in limine by a nonspeaking order does not justify any inference that, by necessary implication, the contentions raised in the Special Leave Petition on the merits of the case have been rejected by the Supreme Court. It has been further held that the effect of a non-speaking order of dismissal of a Special Leave Petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where Special Leave Petition should be granted." The observations apply to the present situation on all fours because here also, the Apex Court had not given any reasons for the dismissal of the Special Leave Petition in limine. The situation would have been quite different had the reasons been given and the contentions raised by the Government rejected as happened in Union of India v. All India Services Pensioners Association (AIR 1988 SC 501). In the same paragraph, the Apex Court goes on to hold: "When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India." This precise position was ignored when the Director passed his first order dated 22-9-1995 which came to be challenged in the present original application, the order passed in which has fallen for consideration before us in this writ petition. 16. We will refer to paragraph 2 in the impugned order passed by the Director, which reads as under: "Accordingly the seniority, communal rotation and wage cut were looked into at the time of appointments. Therefore in G.O. No.89 P&AR Department dated 17-2-1989, 30% was reserved for women candidates against the same some moved the Tribunal in O.A. No.199/90, the Tribunal directed the appointment on time scale of pay only on the basis of seniority of surveyor/draftsman on consolidated pay. (copy enclosed). A revision was filed against the said order was also dismissed. The S.L.P. No.25347/94 was