Judgement
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 4986-4989 OF 2007
Vijay Kumar Kaul
and others .. Appellants
Versus
Union of India and others .... Respondents
Dipak Misra, J.
The appellants, four in number, participated in a selection process conducted
by the Second Field Ordnance Depot (2 FOD) in the year 1984 for the post of
Lower Division Clerks (LDCs). Despite their selection for the post in question
they were not issued appointment letters on the pretext that there was a ban on
appointments. In December 1993, pursuant to the order passed in OA No. 29/jk/92
dated 24.8.1993 by the Chandigarh Bench of the Central Administrative tribunal
(for short ‘the Tribunal’), respondent No. 4 was issued an appointment
letter. The appellant Nos. 1 to 3 were given appointment in May, 1996 on the
basis of the directions issued on 24.7.1995 by the High Court of Jammu and
Kashmir in SWP No. 1052 of 1991.
2. It is worth noting that Parveen Singh and others, whose names, had figured
in the select list, being aggrieved due to non appointment, had preferred OA No.
539-HP of 1986 before the Chandigarh Bench of the tribunal which allowed the OA
vide order dated 25.8.1987 directing the respondent herein to issue appointment
letters to them. The respondents instead of appointing the said Parveen Singh
and others against the vacancies in 9 FOD, where there were ten vacancies of
LDCs, appointed them against the vacancies falling in 2 FOD where there were 27
vacancies for LDCs with effect from 1.1.1990.
3. As set forth, said Parveen Singh and others filed second OA No. 1476-
pb-1991 before the Chandigarh Bench of the tribunal with a prayer to issue a
direction to the respondents to appoint them as LDCs with effect from 1.5.1985
with all consequential benefits including seniority, pay and allowances, etc. on
the foundation that similarly situated persons who were selected along with them
had been appointed with effect from 1985. The tribunal allowed the application
vide order dated 13.10.2000 directing that their appointment shall be treated
with effect from 1.5.1985 and they shall be extended the benefit of fifty per
cent of back wages and other consequential reliefs.
4. The aforesaid order was called in question by the respondents before the
High Court of Punjab and Haryana in CWP No. 1158 of 2001 and a Division Bench of
the High Court, as per order dated 12.7.2001, set aside the order of the
tribunal to the extent of grant of back wages but did not interfere with the
direction ante-dating their date of appointment and other consequential reliefs
granted by the tribunal.
5. As has been stated earlier that the appellants had approached the tribunal
and were appointed on two different dates sometime in December, 1993 and May,
1996. After the High Court of Punjab and Haryana passed the order, the
respondents conferred the benefit on said Parveen Singh and others. Thereafter,
the present appellants submitted a series of representations to extend to them
the similar benefits on the foundation of parity. The said prayer was negatived
by the respondents by order dated 21.7.2004.
6. Being dissatisfied with the said action of the respondents the appellants
knocked at the doors of the Principal Bench of the tribunal in OA No. 2082 of
2004. It was contended before the tribunal that grave injustice had been done to
them by the respondents inasmuch as they were not given the equal treatment that
was given to similarly placed employees;
and that their seniority position and prospects for promotion had been
immensely affected. The stance and stand put forth by the appellants was
resisted by the respondents contending, inter alia, that as the appellants were
not parties to the application before the Chandigarh tribunal and were not
covered by the judgment of Punjab and Haryana High Court, they were not extended
the benefit; that only those general category candidates who were placed higher
in merit list were appointed prior to them excepting one Kalu Ram who belonged
to the Scheduled Caste category; that the appellants could not have been
appointed as there was a ban and thereafter they were appointed as per the
direction of the High Court of Jammu and Kashmir; and that the tribunal in OA
No. 29/jk/92 preferred on the question of appointment of the appellant No. 4 had
clearly stated that the appointment shall have prospective effect and he would
not be entitled to any back wages or seniority and the said order has gone
unassailed; and hence, the claim put forth in the petition did not merit
consideration.
7. The tribunal adverted to various orders passed by the tribunal at various
junctures and the orders passed by the Punjab and Haryana High Court and came to
hold that as far as the appellant No. 4 is concerned his case had attained
finality; that the decision rendered in the case of Parveen Singh and others
could not be treated as judgment in rem but a judgment in personam; and that the
appellants had been given appointment as per their placement in the merit list
regard being had to availability of vacancies and hence, it could not relate to
an earlier date, especially when they failed to show that any person junior to
them had been given appointment from a retrospective date or extended benefit.
Being of this view the tribunal dismissed the Original Application.
8. Aggrieved by the aforesaid order the appellants invoked the jurisdiction
of the High Court of Delhi under Articles 226 and 227 of the Constitution of
India seeking a writ of certiorari for quashment of the order dated 10.3.2005
passed by the tribunal and also for quashing of the orders by which their
representations had been rejected and further pressed for issue of a writ of
mandamus commanding the respondents to extend the similar benefits as had been
extended to Parveen Singh and others in view of the judgment rendered by Punjab
and Haryana High Court.
9. The High Court, upon perusal of the order passed by the tribunal, the
decision rendered by the Punjab and Haryana High Court, and on considering the
factum of the delay and laches on the part of the appellants, and that they had
not been superseded as the select list was prepared in order of merit, and
appreciating the fact that the appointments had been made strictly in accordance
with the merit declined to interfere with the order.
10. We have heard Mr. Ashok Bhan, learned senior counsel for the appellants
and Mr. R.P. Bhatt, learned senior counsel for the respondents.
11. It is submitted by the learned senior counsel for the appellants that the
tribunal as well as the High Court have fallen into serious error by expressing
the view that the appointments were based on the merit list and, therefore,
there was no supersession of the appellants. It is urged by him that neither the
original application nor the writ petition could have been dismissed on the
ground of delay and laches, in view of the fact that the appellants immediately
approached the tribunal after the High Court rendered its judgment on 12.7.2001.
It is his further submission that a serious anomalous situation has cropped up
inasmuch as the candidates whose names featured in one select list have been
appointed at various times, as a consequence of which their pay-scale, seniority
and prospects for promotion, have been put to jeopardy. The last limb of
submission of the learned senior counsel for the appellants is that both the
forums have failed to appreciate that injustice meted out to the appellants
deserved to be remedied applying the doctrine since the doctrine of parity and
the orders are vulnerable and deserved to be axed and appropriate direction are
to be issued considering similar benefits. The learned senior counsel to bolster
his submission has placed reliance on the decisions in K.C. Sharma and others v.
Union of India and others[1], Collector of Central Excise, Calcutta v. M/s.
Alnoori Tobacco Products and anr.[2], State of Karnataka and others v. C.
Lalitha[3] and Maharaj Krishan Bhatt and another v. State of Jammu and Kashmir
and others[4].
12. Mr. Bhatt, learned senior counsel for the respondents supported the order
passed by the tribunal as well as by the High Court on the ground that the
decisions which have been rendered by the tribunal and the High Court are
absolutely impregnable since the appellants had never approached the tribunal at
the earliest and only put forth their claims after success of Parveen Singh and
others. It is propounded by him that the appellants while filing the various
original applications seeking appointment had never claimed the relief of
appointment with retrospective effect and, in fact, in the case of the appellant
No. 4 the tribunal has categorically stated that his appointment could have
prospective effect which has gone unassailed and, therefore, relying on the
decision of Parveen Singh and others is of no assistance to the appellants.
13. To appreciate the rival submissions raised at the Bar it is appropriate
to refer to the various orders passed at various times.
Parveen Singh and others approached the tribunal of Chandigarh at Chandigarh
Bench in the year 1986. The tribunal, by order dated 25.8.1987, directed to
issue appointment letters to the applicants against the vacancies which had not
been filled up, regard being had to the merit position in the examination.
Thereafter, the said Parveen Singh and others were intimated vide letter dated
15.1.1991 to report at the office for collection of their appointment letters on
character verification and eventually they got appointments. Later on Parveen
Singh and others had approached the tribunal to extend the monetary benefits
from the date of their appointment. The tribunal had directed to extend 50% of
the actual monetary benefits from the date of appointment along with other
consequential benefits. The Union of India and its authorities preferred writ
petition before the High Court of Punjab and Haryana, which passed the following
order: - “For the reasons recorded above, the writ petition is partly allowed
and the order of the tribunal is quashed to the extent it grants 50% back wages.
However, we do not find any infirmity in keeping intact the other reliefs
granted by the tribunal, namely, ante-dating of appointment of respondent Nos. 1
to 7 and fixation of their pay with all consequential benefits of increments
etc. with effect from the date, all other candidates placed on the panel of
selected candidates were appointed. No order as to costs.â€
14. While Parveen Singh and others were proceeding in this manner, appellant
No. 4, Ujwal Kachroo, approached the tribunal at Jammu. The tribunal allowed OA
and directed to issue appointment letter to the applicant for the post for which
he was duly selected in 1984 within a period of six weeks. It proceeded to
clarify that the appointment shall have prospective effect and he would not be
entitled to any back wages or seniority for the simple reason that it was
neither his case nor anything had been brought on record to show that any person
junior to him in the panel had already been appointed. At this juncture, three
of the appellants approached the High Court of Jammu and Kashmir and the learned
single Judge of the High Court of Jammu and Kashmir, by order dated 24.7.1995,
had passed the following order: - “I have heard learned counsel for the
parties. The respondents have no objection in appointing the petitioners as and
when the posts of LDCs become available and also subject to their merit
positions in the select list. Since the respondents have not objected in making
appointments of the petitioner, I allow this writ petition and direct the
respondents that the petitioners shall be appointed as LDCs as and when the
posts become available, on their own turn, as per their merit position in the
select list.†On the basis of the aforesaid order, the said appellants were
given appointment.
15. After the decision of the Punjab and Haryana High Court was delivered the
present appellants approached the Principal Bench of the tribunal and the
tribunal did not accept the prayer which has been given the stamp of approval by
the High Court.
16. In the course of hearing, learned senior counsel for the parties fairly
stated that the decision rendered by the High Court of Punjab and Haryana has
not been challenged before this Court and, therefore, we refrain from commenting
about the legal defensibility of the said decision.
However, it is clear as noon day that the appellants, neither in their
initial rounds before the tribunal nor before the High Court, ever claimed any
appointment with retrospective effect. In fact, the direction of the in respect
of appellant No. 4 in the OA preferred by the appellant No. 4 was absolutely
crystal clear that it would be prospective. The said order was accepted by the
said appellant. However, as is manifest, after the decision was rendered by the
Punjab and Haryana High Court wisdom dawned or at least they perceived so, and
approached the Principal Bench for grant of similar reliefs. In the petition
before the tribunal, they had stated in their factual portion which are to the
following effect: - “(n) That since at the time of filing writ by
applicant/petitioner Nos. 1,2 and 3 and an O.A. by applicant/petitioner No. 4,
the issue of entitlement to anti- dating appointment and back wages was under
adjudication before the Hon’ble High Court of Punjab and Haryana in the case
of Parveen Singh & Ors., the applicants/petitioners in the present O.A. did
not seek such relief in their respective writ and O.A.
(o) That when the High Court upheld the orders of the tribunal in case of
Parveen Singh & Ors., that they are entitled to the benefit of anti-dating
appointment and the consequential benefits, the applicants/petitioners made
individual representations to the respondents seeking the benefit of High
Court’s judgment dated 12.7.2001 delivered in C.W.P. No. 1156 of 2001. A true
photocopy of this judgment is already available as Annexure A-5 at page 22-32 of
the O.A.â€
17. Thus, it is demonstrable that they did not approach the legal forum but
awaited for the verdict of the Punjab and Haryana High Court. As far as
appellant No. 4 is concerned, we really see no justifiable reason on his part to
join the other appellants when he had acceded to the first judgment passed in
his favour to a limited extent by the tribunal. This was an ambitious effort but
it is to be borne in mind that all ambitions are neither praiseworthy nor have
the sanction of law. Be that as it may, they approached the tribunal some time
only in 2004. The only justification given for the delay was that they had been
making representations and when the said benefit was declined by communication
dated 31.7.2004, they moved the tribunal. The learned senior counsel for the
appellants fairly stated that as the doctrine of parity gets attracted, they may
only be conferred the benefit of seniority so that their promotions are not
affected.
18. It is necessary to keep in mind that claim for the seniority is to be put
forth within a reasonable period of time. In this context, we may refer to the
decision of this Court in P.S. Sadasivaswamy v. State of Tamil Nadu[5], wherein
a two-Judge Bench has held thus: - “It is not that there is any period of
limitation for the Courts to exercise their powers under Article 226 nor is it
that there can never be a case where the Courts cannot interfere in a matter
after the passage of a certain length of time. But it would be a sound and wise
exercise of discretion for the Courts to refuse to exercise their extraordinary
powers under Article 226 in the case of persons who do not approach it
expeditiously for relief and who stand by and allow things to happen and then
approach the courts to put forward stale claims and try to unsettle matters.â€
19. In Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan &
Anr.[6] this Court had held thus that delay or laches is one of the factors
which is to be borne in mind by the High Court when they exercise their
discretionary powers under Article 226 of the Constitution. In an appropriate
case the High Court may refuse to invoke its extraordinary powers if there is
such negligence or omission on the part of the applicant to assert his right as
taken in conjunction with the lapse of time and other circumstances, causes
prejudice to the opposite party. Even where fundamental right is involved the
matter is still within the discretion of the Court as pointed out in Durga
Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the
discretion has to be exercised judicially and reasonably.
20. In City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala
& Ors.[7] this Court has opined that one of the grounds for refusing relief
is that the person approaching the High Court is guilty of unexplained delay and
the laches. Inordinate delay in moving the court for a Writ is an adequate
ground for refusing a Writ. The principle is that courts exercising public law
jurisdiction do not encourage agitation of stale claims and exhuming matters
where the rights of third parties may have accrued in the interregnum.
21. From the aforesaid pronouncement of law, it is manifest that a litigant
who invokes the jurisdiction of a court for claiming seniority, it is obligatory
on his part to come to the court at the earliest or at least within a reasonable
span of time. The belated approach is impermissible as in the meantime interest
of third parties gets ripened and further interference after enormous delay is
likely to usher in a state of anarchy.
22. The acts done during the interregnum are to be kept in mind and should
not be lightly brushed aside. It becomes an obligation to take into
consideration the balance of justice or injustice in entertaining the petition
or declining it on the ground of delay and laches. It is a matter of great
significance that at one point of time equity that existed in favour of one
melts into total insignificance and paves the path of extinction with the
passage of time.
23. In the case at hand, as the factual matrix reveals, the appellants knew
about the approach by Parveen Singh and others before the tribunal and the
directions given by the tribunal but they chose to wait and to reap the benefit
only after the verdict. This kind of waiting is totally unwarranted.
24. Presently we shall refer to the authorities commended by the learned
senior counsel for the appellants. In K.C. Sharma (supra) the factual scenario
was absolutely different and thus, distinguishable. In C. Lalitha (supra) it has
been held that justice demands that a person should not be allowed to derive any
undue advantage over other employees. The concept of justice is that one should
get what is due to him or her in law. The concept of justice cannot be stretched
so as to cause heart-burning to more meritorious candidates. In our considered
opinion, the said decision does not buttress the case of the appellants.
25. In Maharaj Krishan Bhat (supra), the appellants had made a representation
on 8.1.1987. A similar representation was sent by one Abdul Rashid on that date
to the Hon’ble Chief Minister of State of Jammu and Kashmir with a request to
consider the case for appointment to the post of PSI by granting necessary
relaxation in rules against 50% direct recruitment quota. The Director General
of Police vide his letter dated 23.1.1987 recommended the name of Hamidullah
Dar, one of the applicants, for appointment and he was appointed as PSI vide
order dated 1.4.1987. The other appellants were not extended the benefit of
appointment. Under those circumstances the High Court of Jammu and Kashmir in
SWP No. 351 of 1987 directed the Director General of Police to consider the case
of the appellants. Thereafter Abdul Rashid filed a similar petition which was
admitted. Pursuant to the direction of the High Court the Director General of
Police considered the applications of Mohd. Abbas and Mohd. Amim but rejected
the prayer on 13.12.1991. When the matter of Abdul Rashid, the appellant, came
up the learned single Judge allowed the writ petition relying on the earlier
judgment. The Government of Jammu and Kashmir filed Letters Patent Appeal which
was dismissed. In the context, this Court opined that the Division Bench should
not have refused to follow the judgment by another Division Bench. Attention was
raised that initial violation was committed by the State Government and which
was violative of Articles of 14 and 16 of the Constitution and the said mistake
could not be perpetuated. In that context it was held as follows: - “21. It
was no doubt contended by the learned counsel for the respondent State that
Article 14 or 16 of the Constitution cannot be invoked and pressed into service
to perpetuate illegality. It was submitted that if one illegal action is taken,
a person whose case is similar, cannot invoke Article 14 or 16 and demand
similar relief illegally or against a statute.†Thereafter the Bench proceeded
to state as follows: - “23. In fairness and in view of the fact that the
decision in Abdul Rashid Rather had attained finality, the State authorities
ought to have gracefully accepted the decision by granting similar benefits to
the present writ petitioners. It, however, challenged the order passed by the
Single Judge. The Division Bench of the High Court ought to have dismissed the
letters patent appeal by affirming the order of the Single Judge. The letters
patent appeal, however, was allowed by the Division Bench and the judgment and
order of the learned Single Judge was set aside. In our considered view, the
order passed by the learned Single Judge was legal, proper and in furtherance of
justice, equity and fairness in action. The said order, therefore, deserves to
be restored.â€
26. We respectfully concur with the said observations but we cannot be
oblivious of the fact that the fact situation in that case was totally
different. Hence, the said decision is not applicable to the case at hand.
27. In the case at hand it is evident that the appellants had slept over
their rights as they perceived waiting for the judgment of the Punjab and
Haryana High Court would arrest time and thereafter further consumed time
submitting representations and eventually approached the tribunal after quite a
span of time. In the meantime, the beneficiaries of Punjab and Haryana High
Court, as we have been apprised, have been promoted to the higher posts. To put
the clock back at this stage and disturb the seniority position would be
extremely inequitable and hence, the tribunal and the High Court have correctly
declined to exercise their jurisdiction.
28. Another aspect needs to be highlighted. Neither before the tribunal nor
before the High Court, Parveen Singh and others were arrayed as parties. There
is no dispute over the factum that they are senior to the appellants and have
been conferred the benefit of promotion to the higher posts. In their absence,
if any direction is issued for fixation of seniority, that is likely to
jeopardise their interest. When they have not been impleaded as parties such a
relief is difficult to grant. In this context we may refer with profit to the
decision in Indu Shekhar Singh &
Ors. v. State of U.P. & Ors.[8] wherein it has been held thus: - “There
is another aspect of the matter. The appellants herein were not joined as
parties in the writ petition filed by the respondents. In their absence, the
High Court could not have determined the question of inter se seniority.â€
29. In Public Service Commission, Uttaranchal v. Mamta Bisht & Ors.[9]
this Court while dealing with the concept of necessary parties and the effect of
non-impleadment of such a party in the matter when the selection process is
assailed observed thus: - “7. ……. In Udit Narain Singh Malpaharia v.
Additional Member, Board of Revenue, Bihar & Anr., [1962] INSC
290; AIR 1963 SC 786, wherein
the Court has explained the distinction between necessary party, proper party
and proforma party and further held that if a person who is likely to suffer
from the order of the Court and has not been impleaded as a party has a right to
ignore the said order as it has been passed in violation of the principles of
natural justice. More so, proviso to Order I, Rule IX of Code of Civil
Procedure, 1908 (hereinafter called CPC) provide that non-joinder of necessary
party be fatal. Undoubtedly, provisions of CPC are not applicable in writ
jurisdiction by virtue of the provision of Section 141, CPC but the principles
enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of
Gujarat; [1964] INSC
292; AIR 1965 SC 1153;
Babubhai Muljibhai Patel v. Nandlal, Khodidas Barat & Ors., [1974] INSC
177; AIR 1974 SC 2105; and
Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior &
Ors. [1986] INSC
233; AIR 1987 SC 88).
8. In Prabodh Verma & Ors. v. State of U.P. & Ors. AIR 1985 SC 167; and
Tridip Kumar Dingal & Ors. v. State of West Bengal &
Ors. (2009) 1 SCC 768 :
(AIR 2008 SC (Supp) 824), it has been held that if a person challenges the
selection process, successful candidates or at least some of them are necessary
parties.â€
30. From the aforesaid enunciation of law there cannot be any trace of doubt
that an affected party has to be impleaded so that the doctrine of audi alteram
partem is not put into any hazard.
31. Analysed on the aforesaid premised reasons, we do not see any merit in
these appeals and, accordingly, they are dismissed with no order as to costs.
............................................J.
[Dr. B. S.
Chauhan] ............................................J.
[Dipak Misra] New Delhi;
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