REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9849 OF 2014
(ARISING OUT OF SLP (C) NO. 18639 OF 2012)
|STATE OF UTTAR PRADESH & ORS. |.....APPELLANT(S) |
|VERSUS | |
|ARVIND KUMAR SRIVASTAVA & ORS. |.....RESPONDENT(S) |
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
This appeal, preferred by the State of Uttar Pradesh and its functionaries,
assails the order of the High Court whereby the writ petition filed by the
appellants has been dismissed and the order of the Uttar Pradesh Public
Services Tribunal, Lucknow (for short, 'the Tribunal') passed in favour of
the respondents herein, is affirmed.
To mention at the outset, the Tribunal as well as the High Court has given
the respondents herein benefit of the order passed by the Court in earlier
round of litigation filed by similarly situated persons. The appellants
contend that as far as these respondents are concerned, they never
approached the Court seeking such a relief and were only fence-sitters and,
therefore, relief should not have been granted to them even if they were
similarly situated as those persons who have been granted relief in the
petitions filed by them. Respondents, on the other hand, contend that once
it is found that both sets of persons are identically placed, the impugned
orders granting them the same benefit are in tune with the constitutional
mandate enshrined in Article 14 of the Constitution of India.
Such a situation has not occurred for the first time in the present appeal.
There are many decisions of this Court. If outcome alone of those
judgments is seen, one would find that in some cases the Courts have
extended the benefit to the similarly situated persons, whereas, in some
other cases similar benefit is denied to the second set of people who
approached the Court subsequently. However, on delving deep into the
rationale and reasoning of these two sets of cases, one is able to mentally
rexognise the logic behind different outcomes. Under what circumstances
such a benefit can be extended and what are the reasons for denying the
same, shall be discerned after taking note of those judgments. But, before
undertaking that exercise, it would be apt to take note of the facts of
this case in order to understand and appreciate as to how the respondents
are placed.
It was sometime in the year 1986 that the Chief Medical Officer, Varanasi,
had advertised certain posts of Homeopathic Compounder and Ward Boys in
various newspapers. Respondents herein applied for the said post and
participated in the selection process. After the interviews, they were kept
in the waiting list. Those who were in the select list were offered the
appointments. Some of those candidates who were higher in merit and were
offered the appointments did not join. For this reason, candidates in the
waiting list were issued appointment letters by the then Chief Medical
Officer. These included the respondents herein as well. However, before the
respondents could join their duties, new Chief Medical Officer assumed the
charge and blocked their joining. Thereafter, vide order dated June 22,
1987 he even cancelled the said appointments made by his predecessor for
these Class-III and Class-IV posts i.e. Homeopathic Compounder and Ward
Boys.
The respondents filed the suit in the Court of City Munsif, Varanasi
challenging the aforesaid orders dated June 22, 1987 cancelling their
appointments by the new Chief Medical Officer. This suit was registered as
Suit No. 695/1987. It appears that this suit could not be taken to its
logical conclusion as same was dismissed for non-prosecution because of non
appearance of the advocate of the respondents. The respondents herein did
not take any further steps in the said suit either by filing application
for restoration of the suit or challenging the said order in appeal. In
fact, there was a complete quietus on the part of these respondents.
It so happened that a few other candidates who were also affected by the
same orders dated June 22, 1987, whereby their appointments were cancelled,
approached the Tribunal challenging the legality, validity and proprietary
of the said order on several grounds. One of the grounds taken was that
before cancellation of their appointments, no show-cause notice was given
to them. The Tribunal decided the case filed by them in their favour vide
judgment dated August 16, 1991 holding the impugned order dated June 22,
1987 as illegal and void and quashed the same. Against the order of the
Tribunal, the State filed the writ petition in the High Court. This writ
petition was dismissed on August 27, 1992 thereby confirming the order
passed by the Tribunal. The Special Leave Petition filed by the State met
the same fate as that was also dismissed by this Court on August 12, 1994.
In this manner, the Tribunal's order dated August 16, 1991 attained
finality and the persons who had approached the Tribunal got the
appointments.
The respondents herein waited all this while, that is till the dismissal of
the Special Leave Petition in the year 1994. It is only thereafter, in the
year 1995, the respondents gave a representation for giving appointments to
them as well on the strength of the judgment of the Tribunal given in the
case of other persons, claiming parity. This representation was rejected
vide order dated June 06, 1995 by the Chief Medical Officer. Against this
rejection the respondents approached the Tribunal by filing Claim Petition
No. 96/1996. As mentioned above, the said petition was allowed by the
Tribunal on the ground that they were in the same position in which the
other successful candidates were given relief and as such these respondents
were also be entitled to the same relief. The High Court has affirmed the
order of the Tribunal.
The moot question which requires determination is as to whether in the
given case, approach of the Tribunal and the High Court was correct in
extending the benefit of earlier judgment of the Tribunal, which had
attained finality as it was affirmed till the Supreme Court. Whereas the
appellants contend that the respondents herein did not approach the Court
in time and were fence-sitters and, therefore, not entitled to the benefit
of the said judgment by approaching the judicial forum belatedly. They
also plead the some distinguishing features on the basis of which it is
contended that the case of the respondents herein is not at par with the
matter which was dealt with by the Tribunal in which order dated June 22,
1987 were passed giving benefit to those candidates who had approached the
Court at that time. On the other hand, the respondents claim that their
case is identical to those who had filed the Application before Tribunal
inasmuch as appointments of the respondents were also cancelled by the same
order dated June 22, 1987 and, therefore, there is no reason to deny the
same treatment which was meted out to the said persons, as denial thereof
would amount to invidious discrimination which is anathema to the right of
equality enshrined under Article 14 of the Constitution of India.
It is of interest to note that both the sides, in support of their
respective submissions, have referred to certain judgments and the reading
whereof would demonstrate that in certain cases benefit of a particular
judicial pronouncement is extended to those who are identically situated on
the principle of equality. On the other hand, there is a line of judgments
denying such a benefit to the second group which approaches the Court
afterwards, even when the said second group is similarly situated as the
persons belonging to the first group. However, there is no conflict
between the two sets of cases. In order to find out the principles laid
down on the basis of which benefit of the earlier judgment is extended to
those coming subsequently and the situations where such benefit is denied,
we will have to undertake a journey into these details and lay down clear
parameters.
Let us first take note of those judgments, which are referred to by the
learned counsel for the respondents, wherein this Court has applied the
ratio of the earlier judgments to the similarly situated persons giving
them the same benefit. First case, in the line of these cases, referred to
by the learned counsel for the respondents is the judgment in Inder Pal
Yadav & Ors. v. Union of India & Ors.[1] That was a case where the
services of casual labour employed on railway projects continuously for
more than a year were terminated on the ground that the projects where
these casual labour were working had been wound up. Challenging their
termination, writ petitions under Article 32 of the Constitution of India
were filed in this Court. During the pendency of these petitions, Railway
Administration framed scheme for their absorption as temporary workmen on
completion of 360 days of continuous employment. This scheme was made
applicable to those who were in service as on January 01, 1984. In view of
this development, writ petitions were set out for hearing to examine the
fairness and justness of the Scheme, particularly, on the issue as to
whether choice of date of January 01, 1984 was arbitrary or discriminatory.
The Court was not enthused by fixation of January 01, 1984 as the cut off
date on the ground that it was likely to introduce an invidious distinction
between similarly situated persons and expose some workmen to arbitrary
discrimination flowing from fortuitous Court's order. It was noticed that
in some matters, the Court had granted interim stay before the workmen
could be retrenched while in some other cases no such interim orders had
been passed. Thus, as a result of grant of interim relief by stay/
suspension of the order of retrenchment, persons benefitted by the said
interim order and were treated in service as on January 01, 1984. Those
who failed to obtain the interim relief, their services were terminated in
the meantime and, therefore, they were not in service as on January 01,
1984. The Court pointed out that though both the groups belong to the same
category, one category could get the benefit of the scheme with cut off
date of January 01, 1984, whereas the other category would fail to get the
benefit/advance of the scheme. The Court also noted that there may be some
other persons, similarly situated, who could not afford to rush to the
Court and they would also be left out. Giving these reasons, the date of
January 01, 1984 fixed in the scheme was struck down and the Court while
accepting the scheme framed by the Railway Administration, modified the
date from January 01, 1984 to January 01, 1981. While doing so, following
reasons were given:
“5...There is another area where discrimination is likely to rear its ugly
head. These workmen come from the lowest grade of railway service. They
can ill afford to rush to court. Their federations have hardly been of any
assistance. They had individually to collect money and rush to court which
in case of some may be beyond their reach. Therefore, some of the
retrenched workmen failed to know at the door of justice because these
doors do not open unless hudge expenses are incurred. Choice in such a
situation, even without crystal gazing is between incurring expenses for a
litigation with uncertain outcome and hunger from day to day. It is a
Hobson's choice. Therefore, those who could not come to the Court need not
be at comparative disadvantage to those who rushed in here. If they are
otherwise similarly situated, they are entitled to similar treatment if not
by anyone else at the hands of this Court.”
We would like to point out at this stage itself that the writ
petitions were filed by the concerned affected persons which were already
pending before the Court and it was the step taken by the Railway
Administration itself which framed the Scheme for their absorption. In
such circumstances, the question of fixing the rationality of cut off date
in the said Scheme arose for consideration and the Court was of the view
that while implementing the Scheme, those whose services were terminated
before January 01, 1984, they would be discriminated against. Thus, while
giving the direction to implement the scheme which was framed by the
Railway Administration itself, the Court gave the direction to start
absorbing those with longest service, which is clear from the reading of
para 6 of the said judgment, and we reproduce the same hereunder:
“6. To avoid violation of Article 14, the scientific and equitable way of
implementing the scheme is for the Railway Administration to prepare, a
list of project casual labour with reference to each division of each
railway and then start absorbing those with the longest service. If in the
process any adjustments are necessary, the same must be done. In giving
this direction, we are considerably influenced by the statutory recognition
of a principle well known in industrial jurisprudence that the men with
longest service shall have priority over those who have joined later on.
In other words, the principle of last come first go or to reverse it first
come last go as enunciated in Section 25-G of the Industrial Disputes Act,
1947 has been accepted. We direct accordingly.”
This case, therefore, may not be of direct relevance.
Next judgment is of the Constitution Bench judgment of this Court in the
case of K.C. Sharma & Ors. v. Union of India[2]. In this case the Court
was directly concerned with the issue of granting benefit of the earlier
judgment. The Government had passed Notification dated December 05, 1988
which obviously affected the pension of retired employees, retrospectively.
These persons had not challenged the said Notification within the
limitation period. However, in some other case filed by similarly situated
persons, a Full Bench of the Central Administrative Tribunal declared the
Notification invalid vide its judgment dated December 16, 1993. After this
Notification was declared invalid, the appellants also claimed the benefit
of that judgment from the Railways. On Railways refusal to extend the
benefit, they filed Application in the Central Administrative Tribunal in
April 1994. This Application was dismissed by the Tribunal as time barred
and against the judgment of the Tribunal these appellants had approached
this Court. The Court, in a brief order which runs into six paragraphs,
held that delay in filing the Application should have been condoned and the
appellants should have been given relief by the Tribunal on the same terms
as were granted to others by the Full Bench judgment of the Tribunal .
After stating the aforesaid facts in the earlier paragraphs of the order,
the reasons for extending the benefit are contained in para 6 thereof,
which reads as under:
“6. Having regard to the facts and circumstances of the case, we are of
the view that this was a fit case in which the Tribunal should have
condoned the delay in the filing of the application and the appellants
should have been given relief in the same terms as was granted by the Full
Bench of the Tribunal. The appeal is, therefore, allowed, the impugned
judgment of the Tribunal is set aside, the delay in filing of OA No. 774 of
1994 is condoned and the said application is allowed. The appellants would
be entitled to the same relief in the matter of pension as has been granted
by the Full Bench of the Tribunal in its judgment dated 16-12-1993 in Oas
No. 395-403 of 1993 and connected matters. No order as to costs.”
Immediate comment which is called for by us to the aforesaid
judgment is that there is no detailed discussion in the said order. What
can be observed from the reading of this order is that the earlier judgment
of the Tribunal striking down the Notification dated December 05, 1988 was
treated as judgment in rem. Naturally, when the Notification itself is
struck down and it was a matter of pension, benefit thereof was to be given
to the others as well. It appears that for this reason the Constitution
Bench observed that delay should have been condoned giving relief to the
appellants also in the same terms as was granted by the Full Bench of the
Tribunal.
In State of Karnataka & Ors. v. C. Lalitha[3], which is the next case
relied upon by the learned counsel for the respondents, our attention was
drawn to the following passage from the said judgment:
“29. Service jurisprudence evolved by this Court from time to time
postulates that all persons similarly situated should be treated similarly.
Only because one person has approached the court that would not mean that
persons similarly situated should be treated differently. It is
furthermore well settled that the question of seniority should be governed
by the rules. It may be true that this Court took notice of the subsequent
events, namely, that in the meantime she had also been promoted as
Assistant Commissioner which was a Category I post but the direction to
create a supernumerary post to adjust her must be held to have been issued
only with a view to accommodate her therein as otherwise she might have
been reverted and not for the purpose of conferring a benefit to which she
was not otherwise entitled to.”
We have to understand the context in which the aforesaid observations came
to be made. That was a case where the order passed in the first round of
litigation between the same parties came up for construction and its
effect. The background in which the issue arose was that an amendment made
in the reservation policy of the State was challenged in N.T. Devin Katti
v. Karnataka Public Service Commission[4]. In that judgment, this Court
had declared that the revised reservation policy was not applicable to the
selections initiated prior thereto. It resulted in the consequential
direction to the State Government to appoint N.T. Devin Katti (appellant in
that case) on the post of Tehsildar with retrospective effect. At the same
time, it was also made clear that for the purposes of seniority such
persons would have to be placed below the last candidates appointed in the
year 1976 and they would also be not entitled to any back wages. Insofar
as, respondent C. Lalitha is concerned, on the basis of revised reservation
policy, she was appointed as Tehsildar. After the rendition of the
aforesaid judgment in N.T. Devin Katti's case (supra), she approached the
Karnataka Administrative Tribunal by filing an OA claiming appointment as
Assistant Commissioner. The Tribunal dismissed the OA. However, her appeal
against the order of the Tribunal was allowed by this Court vide orders
dated March 15, 1994, taking note of the fact that she was selected and
shown in the first list, which was upheld by the Court in the case of N.T.
Devin Katti (supra). Since she had already been promoted to Class I Post
of Assistant Commissioner by then, for her appointment the Court directed
that if no vacancies are available, the State Government will create a
supernumerary post and for the purpose of seniority, she had to be placed
below the last candidate appointed in the year 1976 and was not entitled to
any back wages. It is clear from these directions that her appeal was
allowed giving same directions as given in N.T. Devin Katti (supra). It so
happened that though her name was in the first list, which was upheld in
N.T. Devin Katti's case (supra), her rank was little below and there were
few persons above her. As per her rank in the general merit Category I
posts, after taking the opinion of the Public Service Commission, it was
decided by the Government to consider her for the post of Assistant
Controller of Accounts , a Category I Post, as the marks secured by her
were below the marks secured by the candidates selected as Assistant
Controller of Accounts. She refused to accept the said post and approached
the Tribunal again. The Tribunal dismissed the OA filed by her. Against
that order of the Tribunal she approached the Karnataka High Court, which
allowed the writ petition directing the State to implement order dated
March 15, 1994 which was passed by this Court in the earlier round.
Against this order of the High Court, the State preferred appeal and it is
in this backdrop that effect of the earlier order dated March 15, 1994 came
up for consideration. It was argued by the State that effect of the order
dated March 15, 1994 was to relegate the parties to the same position as if
the reservation policy was not amended and if so construed, the respondent
having been placed in the supplementary list could not have been laid any
claim for any post in the administrative service. It is this contention
which was accepted by this Court noticing another crucial fact that there
were many persons who were higher in the merit than the respondent and the
effect of the earlier order passed by this Court could not have been to
ignore the said merit list and give something to the respondent which was
not admissible in law. The Court held that merit should be the sole
criteria for selection of candidates and the earlier judgment was to be
construed as if it had been rendered in accordance with law. While holding
so, the Court also sited many case law to demonstrate that the judgments
are not to be read as a statute. It is in the aforesaid context that
observations are made in para 29, on which heavy reliance has been placed
by the respondent.
When we understand the impact of the observations
contextually, we find that again the issue at hand is totally different.
Next case in the line, on which the respondents rely, is Maharaj Krishna
Bhatt & Anr. v. State of Jammu & Kashmir[5]. In that case, the appellants
and some other Constables approached the Chief Minister of the respondent
State for relaxation of rules relating to 50% direct recruitment quota for
appointment as Sub-Inspectors of Police (PSI). The Chief Minister's office
in turn called for the Director General's recommendations, who recommended
the name of one person only, namely, Hamidullah Dar. Hamidullah Dar was
accordingly appointed as PSI with effect from April 01, 1987. Thereupon,
other persons also approached the Court. In the case of one Abdul Rashid
Rather, the Single Judge of the High Court allowed his writ petition. The
respondent State filed LPA which was dismissed, and subsequently, special
leave petition was also dismissed by this Court. Consequently, Abdul
Rashid Rather was also appointed as PSI. It would be pertinent to mention
that the appellants in the said appeal, along with two others, had also
filed the writ petition in the year 1987, which was disposed of on
September 13, 1991 and a direction was issued to the Director General of
Police to consider their cases for appointment to the post of PSI by
relaxing of rules. Pursuant to the said directions, the Director General
of Police considered and rejected the cases of the appellants for
appointment without giving any reasons. These appellants initially filed
the contempt petition, but thereafter preferred fresh writ petition being
Writ Petition No. 3735 of 1997. This writ petition of the appellants was
pending when the orders of appointment came to be passed in the writ
petition filed by Abdul Rashid Rather and on the basis of that judgment,
Abdul Rashid Rather had been given the appointment with effect from April
01, 1987. In this scenario, when writ petition of the appellants came up
for hearing before the Single Judge of the High Court, it was allowed vide
judgment dated April 30, 2001 following the judgment in the case of Abdul
Rashid Rather, which had been affirmed by this Court as well. However, the
State filed appeal thereagainst and this appeal was allowed by the Division
Bench of the High Court. Even the review petition filed by the appellants
was dismissed by the Division Bench. Special Leave Petition was filed
challenging the judgment of the Division Bench, which was the subject
matter in the case of Maharaj Krishan Bhatt (supra). Leave was granted and
ultimately appeal was allowed holding that the appellants were also
entitled to the same treatment. While doing so, the Court made the
following observations:
“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.”
No doubt, the Court extended the benefit of the decision in Abdul Rashid
Rather's case to the appellants. However, what needs to be kept in mind is
that these appellants had not taken out legal proceedings after the
judgment in Abdul Rashid Rather's case. They had approached the Court well
in time when Abdul Rashid Rather had also filed the petition.
The submission of learned counsel for the appellants, on the other hand, is
that the respondents did not approach the Court earlier and acquiesced into
the termination orders. Approaching the Court at such a belated stage,
after the judgment in some other case, was clearly impermissible and such a
petition should have been dismissed on the ground of laches and delays as
well as acquiescence. It was submitted that in such circumstances this
Court has taken consistent view to the effect that benefit of judgment in
the other case should not be extended even if the persons in the two sets
of cases were similarly situated. Mr. P.N. Misra, learned senior counsel
appearing for the appellants, pointed out in this behalf that though the
orders were passed by the appellants on June 22, 1987, the respondents have
filed their claim petition before the Tribunal only in the year 1996, i.e.
after a period of 9 years from the date of passing of the orders. He drew
our attention to the following observations in M/s. Rup Diamonds & Ors. v.
Union of India & Ors.[6]:
“8. Apart altogether from the merits of the grounds for rejection – on
which it cannot be aid that the mere rejection of the special leave
petitions in the cases of M/s Ripal Kumar & Co., and M/s. H. Patel & Co.,
could, by itself, be construed as the imprematur of this Court on the
correctness of the decisions sought to be appealed against – there is one
more ground which basically sets the present case apart. Petitioner are re-
agitating claims which they had not pursued for several years. Petitioners
were not vigilant but were content to be dormant and chose to sit on the
fence till somebody else's case came to be decided. Their case cannot be
considered on the analogy of one where a law had been declared
unconstitutional and void by a court, so as to enable persons to recover
monies paid under the compulsion of a law later so declared void. There is
also an unexplained, inordinate delay in preferring this writ petition
which is brought after almost an year after the first rejection. From the
orders in M/s Ripal Kumar & Co.'s case and M/s H. Patel & Co.'s case it is
seen that in the former case the application for revalidation and
endorsement was made on March 12, 1984 within four months of the date of
the redemption certificate dated November 16, 1983 and in the latter case
the application for revalidation was filed on June 20, 1984 in about three
months from the Redemption Certificate dated March 9, 1984.”
That case pertains to import facility for import of OGL items available
under para 185(3) and (4) of Import – Export Policy, 1982-83 to export
houses after discharging export obligation on advance/imprest licence. The
petitioners had applied for, and were granted, this imprest licence for the
import of uncut and unset diamonds with the obligation to fulfil certain
export commitment for the export, out of India, of cut and polished
diamonds of the FOB value, stipulated in each of the imprest licences. As
per the petitioners, they have discharged their export obligation and,
therefore, in terms of para 185(4) of the Import – Export policy, they were
entitled to the facility for the import of OGL items. However, they sought
revalidation four years after discharge of export obligation and five years
after the expiry of the licence. This claim was rejected by the
authorities on the ground of delay. Writ petition was filed in this Court
one year after such rejection. In these circumstances, the Court dismissed
the writ petition for approaching the Court belatedly and refused to follow
the orders passed in another petitions by this Court, which was sought to
be extended on the ground that the petitions were exactly similar to those
petitions which were preferred in another case.
No doubt, writ petition was dismissed on the ground of
unexplained inordinate delay, but it would be necessary to observe that it
was not a service matter. However, the principle of delay and laches would
have some relevance for our purposes as well.
State of Karnataka & Ors. v. S.M. Kotrayya & Ors.[7] is, on the other hand,
a service matter. Here, the respondents, while working as teachers in the
Department of Education, availed of Leave Travel Concession (LTC) during
the year 1981-82. But later it was found that they had never utilised the
benefit of LTC but had drawn the amount and used it. Consequently,
recovery was made in the year 1984-86. Some persons in similar cases
challenged the recovery before the Administrative Tribunal which allowed
their Applications in August 1989. On coming to know of the said decision,
the respondents filed Applications in August 1989 before the Tribunal with
an application to condone the delay. The Tribunal condoned the delay and
allowed the OAs. Appeal against the said order was allowed by this Court
holding that there was unexplained delay in approaching the Tribunal. The
Court relied upon the Constitution Bench case in S.S. Rathore v. State of
M.P.[8], which deals with the manner in which limitation is to be counted
while approaching the Administrate Tribunal under the Administrative
Tribunal Act, 1985. Here again, on the ground of delay, the Court refused
to extend the benefit of judgment passed in respect of other similarly
situated employees.
Both these judgments, along with some other judgments, were take note of in
U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr.[9] That was a case where the
issue pertained to entitlement of the employees of U.P. Jal Nigam to
continue in service up to the age of 60 years. In Harwindra Kumar v. Chief
Engineer, Karmik[10] this Court had earlier held that these employees were
in fact entitled to continue in service up to the age of 60 years. After
the aforesaid decision, a spat of writ petitions came to be filed in the
High Court by those who had retired long back. The question that arose for
consideration was as to whether the employees who did not wake up to
challenge their retirement orders, and accepted the same, and had collected
their post retirement benefits as well, could be given relief in the light
of the decision delivered in Harwindra Kumar (supra). The Court refused to
extend the benefit applying the principle of delay and laches. It was held
that an important factor in exercise of discretionary relief under Article
226 of the Constitution of India is laches and delay. When a person who is
not vigilant of his rights and acquiesces into the situation, his writ
petition cannot be heard after a couple of years on the ground that the
same relief should be granted to him as was granted to the persons
similarly situated who were vigilant about their rights and challenged
their retirement. In para 7, the Court quoted from M/s. Rup Diamonds &
Ors. (supra). In para 8, S.M. Kotrayya (supra) was taken note of. Some
other judgments on the same principle of laches and delays are taken note
of in paras 9 to 11 which are as follows:
“9. Similarly in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, this
Court reaffirmed the rule if a person chose to sit over the matter and then
woke up after the decision of the court, then such person cannot stand to
benefit. In that case it was observed as follows: (SCC p. 542)
“The delay disentitles a party to discretionary relief under Article 226
or Article 32 of the Constitution. The appellants kept sleeping over their
rights for long and woke up when they had the impetus from Union of India
v. Virpal Singh Chauhan, (195) 6 SCC 684. The appellants' desperate
attempt to redo the seniority is not amenable to judicial review at this
belated stage.”
10. In Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, it was
observed as follows:
“9. We, however, clarify that in view of our finding that the judgment of
the Tribunal in R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on
17-3-1987, gives relief only to Joshi, the benefit of the said judgment of
the Tribunal cannot be extended to any other person. The respondent C.K.
Dharagupta (since retired) is seeking benefit of Joshi case. In view of
our finding that the benefit of the judgment of the Tribunal dated 17-3-
1987 could only be given to Joshi and nobody else, even Dharagupta is not
entitled to any relief.”
11. In Govt. of W.B. v. Tarun K. Roy, (1997) 3 SCC 395, their Lordships
considered delay as serious factor and have not granted relief. Therein it
was observed as follows: (SCC pp. 359-60, para 34)
“34. The respondents furthermore are not even entitled to any relief on
the ground of gross delay and laches on their part in filing the writ
petition. The first two writ petitions were filed in the year 1976 wherein
the respondents herein approached the High Court in 1992. In between 1976
and 1992 not only two writ petitions had been decided, but one way or the
other, even the matter had been considered by this Court in State of W.B.
v. Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr.
Krishnamani states, should be a ground for denying the relief to the other
persons similarly situated would operate against the respondents.
Furthermore, the other employees not being before this Court although they
are ventilating their grievances before appropriate courts of law, no order
should be passed which would prejudice their cause. In such a situation,
we are not prepared to make any observation only for the purpose of grant
of some relief to the respondents to which they are not legally entitled to
so as to deprive others therefrom who may be found to be entitled thereto
by a court of law.”
The Court also quoted following passage from the Halsbury's Laws of England
(para 911, p.395):
“In determining whether there has been such delay as to amount to laches,
the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii)any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of
a right is in progress, but assent after the violation has been completed
and the claimant has become aware of it. It is unjust to give the claimant
a remedy where, by his conduct, he has done that which might fairly be
regarded as equivalent to a waiver of it; or where by his might fairly be
regarded as equivalent to a waiver of it; or where by his conduct and
neglect, though not waiving the remedy, he has put the other party in a
position in which it would not be reasonable to place him if the remedy
were afterwards to be asserted. In such cases lapse of time and delay are
most material. Upon these considerations rests the doctrine of laches.”
Holding that the respondents had also acquiesced in accepting the
retirements, the appeal of U.P. Jal Nigam was allowed with the following
reasons:
“13. In view of the statement of law as summarised above, the respondents
are guilty since the respondents have acquiesced in accepting the
retirement and did not challenge the same in time. If they would have been
vigilant enough, they could have filed writ petitions as others did in the
matter. Therefore, whenever it appears that the claimants lost time or
whiled it away and did not rise to the occasion in time for filing the writ
petitions, then in such cases, the court should be very slow in granting
the relief to the incumbent. Secondly, it has also to be taken into
consideration the question of acquiescence or waiver on the part of the
incumbent whether other parties are going to be prejudiced if the relief is
granted. In the present case, if the respondents would have challenged
their retirement being violative of the provisions of the Act, perhaps the
Nigam could have taken appropriate steps to raise funds so as to meet the
liability but by not asserting their rights the respondents have allowed
time to pass and after a lapse of couple of years, they have filed writ
petitions claiming the benefit for two years. That will definitely require
the Nigam to raise funds which is going to have serious financial
repercussions on the financial management of the Nigam. Why should the
court come to the rescue of such persons when they themselves are guilty of
waiver and acquiescence?”
The legal principles which emerge from the reading of the aforesaid
judgments, cited both by the appellants as well as the respondents, can be
summed up as under:
(1) Normal rule is that when a particular set of employees is given
relief by the Court, all other identically situated persons need to be
treated alike by extending that benefit. Not doing so would amount to
discrimination and would be violative of Article 14 of the Constitution of
India. This principle needs to be applied in service matters more
emphatically as the service jurisprudence evolved by this Court from time
to time postulates that all similarly situated persons should be treated
similarly. Therefore, the normal rule would be that merely because other
similarly situated persons did not approach the Court earlier, they are not
to be treated differently.
(2) However, this principle is subject to well recognized exceptions in
the form of laches and delays as well as acquiescence. Those persons who
did not challenge the wrongful action in their cases and acquiesced into
the same and woke up after long delay only because of the reason that their
counterparts who had approached the Court earlier in time succeeded in
their efforts, then such employees cannot claim that the benefit of the
judgment rendered in the case of similarly situated persons be extended to
them. They would be treated as fence-sitters and laches and delays, and/or
the acquiescence, would be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where the
judgment pronounced by the Court was judgment in rem with intention to give
benefit to all similarly situated persons, whether they approached the
Court or not. With such a pronouncement the obligation is cast upon the
authorities to itself extend the benefit thereof to all similarly situated
person. Such a situation can occur when the subject matter of the decision
touches upon the policy matters, like scheme of regularisation and the like
(see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if
the judgment of the Court was in personam holding that benefit of the said
judgment shall accrue to the parties before the Court and such an intention
is stated expressly in the judgment or it can be impliedly found out from
the tenor and language of the judgment, those who want to get the benefit
of the said judgment extended to them shall have to satisfy that their
petition does not suffer from either laches and delays or acquiescence.
Viewed from this angle, in the present case, we find that the selection
process took place in the year 1986. Appointment orders were issued in the
year 1987, but were also cancelled vide orders dated June 22, 1987. The
respondents before us did not chalelnge these cancelleation orders till the
year 1996, i.e. for a period of 9 years. It means that they had accepted
the cancellation of their appointments. They woke up in the year 1996 only
after finding that some other persons whose appointment orders were also
cancelled got the relief. By that time, nine years had passed. The
earlier judgment had granted the relief to the parties before the Court.
It would also be pertinent to highlight that these respondents have not
joined the service nor working like the employees who succeeded in earlier
case before the Tribunal. As of today, 27 years have passed after the
issuance of cancellation orders. Therefore, not only there was unexplained
delay and laches in filing the claim petition after period of 9 years, it
would be totally unjust to direct the appointment to give them the
appointment as of today, i.e. after a period of 27 years when most of these
respondents would be almost 50 years of age or above.
For all the foregoing reasons, we allow the appeal and set aside the order
of the High Court as well as that of the Tribunal. There shall, however,
be no order as to costs.
.............................................J.
(J. CHELAMESWAR)
.............................................J.
(A.K. SIKRI)
New Delhi;
October 17, 2014.
ITEM NO.1A COURT NO.1 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal NO....... of 2014 @ Petition(s) for Special Leave to Appeal
(C) No(s). 18639/2012
STATE OF U.P.& ORS. Petitioner(s)
VERSUS
ARVIND KUMAR SRIVASTAVA & ORS. Respondent(s)
Date : 17/10/2014 The matter was called on for pronouncement of
Judgment today.
For Appellant(s) Mr. P.N. Misra,Sr.Adv.
Mr. Abhisth Kumar,Adv.
Mr. Sudeep Kumar,Adv.
Mr. Som Raj Choudhury,Adv.
For Respondent(s) Mr. Praveen Swarup,Adv.
Ms. Sushma Verma,Adv.
Mr. R.K. Singh,Adv.
Mr. S.R. Singh,Sr.Adv.
Mr. Sushant K. Yadav,Adv.
Mohd. Muztaba,Adv.
For Ms. Namita Choudhary,Adv.
Mr. Puneet Jain,Adv.
Ms. Christi Jain,Adv.
Ms. Khushbu Jain,Adv.
Ms. Chhaya Kirti,Adv.
For Ms. Pratibha Jain,Adv.
Hon'ble Mr.Justice A.K.Sikri pronounced the Judgment of the
Bench comprising Hon'ble Mr.Justice J.Chelameswar and His Lordship.
Leave granted.
Appeal is allowed and the order of the High Court as well as
that of the Tribunal are set aside with a further direction that there
shall, however, be no order as to costs, in terms of the signed reportable
judgment
(G.V.Ramana) (Vinod Kulvi)
Court Master Asstt.Registrar
(Signed reportable Judgment is placed on the file)
-----------------------
[1] (1985) 2 SCC 648
[2] (1997) 6 SCC 721
[3] (2006) 2 SCC 747
[4] (1990) 3 SCC 157
[5] (2008) 9 SCC 24
[6] (1989) 2 SCC 356
[7] (1996) 6 SCC 267
[8] (1989) 4 SCC 582
[9] (2006) 11 SCC 464
[10] (2005) 13 SCC 300
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9849 OF 2014
(ARISING OUT OF SLP (C) NO. 18639 OF 2012)
|STATE OF UTTAR PRADESH & ORS. |.....APPELLANT(S) |
|VERSUS | |
|ARVIND KUMAR SRIVASTAVA & ORS. |.....RESPONDENT(S) |
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
This appeal, preferred by the State of Uttar Pradesh and its functionaries,
assails the order of the High Court whereby the writ petition filed by the
appellants has been dismissed and the order of the Uttar Pradesh Public
Services Tribunal, Lucknow (for short, 'the Tribunal') passed in favour of
the respondents herein, is affirmed.
To mention at the outset, the Tribunal as well as the High Court has given
the respondents herein benefit of the order passed by the Court in earlier
round of litigation filed by similarly situated persons. The appellants
contend that as far as these respondents are concerned, they never
approached the Court seeking such a relief and were only fence-sitters and,
therefore, relief should not have been granted to them even if they were
similarly situated as those persons who have been granted relief in the
petitions filed by them. Respondents, on the other hand, contend that once
it is found that both sets of persons are identically placed, the impugned
orders granting them the same benefit are in tune with the constitutional
mandate enshrined in Article 14 of the Constitution of India.
Such a situation has not occurred for the first time in the present appeal.
There are many decisions of this Court. If outcome alone of those
judgments is seen, one would find that in some cases the Courts have
extended the benefit to the similarly situated persons, whereas, in some
other cases similar benefit is denied to the second set of people who
approached the Court subsequently. However, on delving deep into the
rationale and reasoning of these two sets of cases, one is able to mentally
rexognise the logic behind different outcomes. Under what circumstances
such a benefit can be extended and what are the reasons for denying the
same, shall be discerned after taking note of those judgments. But, before
undertaking that exercise, it would be apt to take note of the facts of
this case in order to understand and appreciate as to how the respondents
are placed.
It was sometime in the year 1986 that the Chief Medical Officer, Varanasi,
had advertised certain posts of Homeopathic Compounder and Ward Boys in
various newspapers. Respondents herein applied for the said post and
participated in the selection process. After the interviews, they were kept
in the waiting list. Those who were in the select list were offered the
appointments. Some of those candidates who were higher in merit and were
offered the appointments did not join. For this reason, candidates in the
waiting list were issued appointment letters by the then Chief Medical
Officer. These included the respondents herein as well. However, before the
respondents could join their duties, new Chief Medical Officer assumed the
charge and blocked their joining. Thereafter, vide order dated June 22,
1987 he even cancelled the said appointments made by his predecessor for
these Class-III and Class-IV posts i.e. Homeopathic Compounder and Ward
Boys.
The respondents filed the suit in the Court of City Munsif, Varanasi
challenging the aforesaid orders dated June 22, 1987 cancelling their
appointments by the new Chief Medical Officer. This suit was registered as
Suit No. 695/1987. It appears that this suit could not be taken to its
logical conclusion as same was dismissed for non-prosecution because of non
appearance of the advocate of the respondents. The respondents herein did
not take any further steps in the said suit either by filing application
for restoration of the suit or challenging the said order in appeal. In
fact, there was a complete quietus on the part of these respondents.
It so happened that a few other candidates who were also affected by the
same orders dated June 22, 1987, whereby their appointments were cancelled,
approached the Tribunal challenging the legality, validity and proprietary
of the said order on several grounds. One of the grounds taken was that
before cancellation of their appointments, no show-cause notice was given
to them. The Tribunal decided the case filed by them in their favour vide
judgment dated August 16, 1991 holding the impugned order dated June 22,
1987 as illegal and void and quashed the same. Against the order of the
Tribunal, the State filed the writ petition in the High Court. This writ
petition was dismissed on August 27, 1992 thereby confirming the order
passed by the Tribunal. The Special Leave Petition filed by the State met
the same fate as that was also dismissed by this Court on August 12, 1994.
In this manner, the Tribunal's order dated August 16, 1991 attained
finality and the persons who had approached the Tribunal got the
appointments.
The respondents herein waited all this while, that is till the dismissal of
the Special Leave Petition in the year 1994. It is only thereafter, in the
year 1995, the respondents gave a representation for giving appointments to
them as well on the strength of the judgment of the Tribunal given in the
case of other persons, claiming parity. This representation was rejected
vide order dated June 06, 1995 by the Chief Medical Officer. Against this
rejection the respondents approached the Tribunal by filing Claim Petition
No. 96/1996. As mentioned above, the said petition was allowed by the
Tribunal on the ground that they were in the same position in which the
other successful candidates were given relief and as such these respondents
were also be entitled to the same relief. The High Court has affirmed the
order of the Tribunal.
The moot question which requires determination is as to whether in the
given case, approach of the Tribunal and the High Court was correct in
extending the benefit of earlier judgment of the Tribunal, which had
attained finality as it was affirmed till the Supreme Court. Whereas the
appellants contend that the respondents herein did not approach the Court
in time and were fence-sitters and, therefore, not entitled to the benefit
of the said judgment by approaching the judicial forum belatedly. They
also plead the some distinguishing features on the basis of which it is
contended that the case of the respondents herein is not at par with the
matter which was dealt with by the Tribunal in which order dated June 22,
1987 were passed giving benefit to those candidates who had approached the
Court at that time. On the other hand, the respondents claim that their
case is identical to those who had filed the Application before Tribunal
inasmuch as appointments of the respondents were also cancelled by the same
order dated June 22, 1987 and, therefore, there is no reason to deny the
same treatment which was meted out to the said persons, as denial thereof
would amount to invidious discrimination which is anathema to the right of
equality enshrined under Article 14 of the Constitution of India.
It is of interest to note that both the sides, in support of their
respective submissions, have referred to certain judgments and the reading
whereof would demonstrate that in certain cases benefit of a particular
judicial pronouncement is extended to those who are identically situated on
the principle of equality. On the other hand, there is a line of judgments
denying such a benefit to the second group which approaches the Court
afterwards, even when the said second group is similarly situated as the
persons belonging to the first group. However, there is no conflict
between the two sets of cases. In order to find out the principles laid
down on the basis of which benefit of the earlier judgment is extended to
those coming subsequently and the situations where such benefit is denied,
we will have to undertake a journey into these details and lay down clear
parameters.
Let us first take note of those judgments, which are referred to by the
learned counsel for the respondents, wherein this Court has applied the
ratio of the earlier judgments to the similarly situated persons giving
them the same benefit. First case, in the line of these cases, referred to
by the learned counsel for the respondents is the judgment in Inder Pal
Yadav & Ors. v. Union of India & Ors.[1] That was a case where the
services of casual labour employed on railway projects continuously for
more than a year were terminated on the ground that the projects where
these casual labour were working had been wound up. Challenging their
termination, writ petitions under Article 32 of the Constitution of India
were filed in this Court. During the pendency of these petitions, Railway
Administration framed scheme for their absorption as temporary workmen on
completion of 360 days of continuous employment. This scheme was made
applicable to those who were in service as on January 01, 1984. In view of
this development, writ petitions were set out for hearing to examine the
fairness and justness of the Scheme, particularly, on the issue as to
whether choice of date of January 01, 1984 was arbitrary or discriminatory.
The Court was not enthused by fixation of January 01, 1984 as the cut off
date on the ground that it was likely to introduce an invidious distinction
between similarly situated persons and expose some workmen to arbitrary
discrimination flowing from fortuitous Court's order. It was noticed that
in some matters, the Court had granted interim stay before the workmen
could be retrenched while in some other cases no such interim orders had
been passed. Thus, as a result of grant of interim relief by stay/
suspension of the order of retrenchment, persons benefitted by the said
interim order and were treated in service as on January 01, 1984. Those
who failed to obtain the interim relief, their services were terminated in
the meantime and, therefore, they were not in service as on January 01,
1984. The Court pointed out that though both the groups belong to the same
category, one category could get the benefit of the scheme with cut off
date of January 01, 1984, whereas the other category would fail to get the
benefit/advance of the scheme. The Court also noted that there may be some
other persons, similarly situated, who could not afford to rush to the
Court and they would also be left out. Giving these reasons, the date of
January 01, 1984 fixed in the scheme was struck down and the Court while
accepting the scheme framed by the Railway Administration, modified the
date from January 01, 1984 to January 01, 1981. While doing so, following
reasons were given:
“5...There is another area where discrimination is likely to rear its ugly
head. These workmen come from the lowest grade of railway service. They
can ill afford to rush to court. Their federations have hardly been of any
assistance. They had individually to collect money and rush to court which
in case of some may be beyond their reach. Therefore, some of the
retrenched workmen failed to know at the door of justice because these
doors do not open unless hudge expenses are incurred. Choice in such a
situation, even without crystal gazing is between incurring expenses for a
litigation with uncertain outcome and hunger from day to day. It is a
Hobson's choice. Therefore, those who could not come to the Court need not
be at comparative disadvantage to those who rushed in here. If they are
otherwise similarly situated, they are entitled to similar treatment if not
by anyone else at the hands of this Court.”
We would like to point out at this stage itself that the writ
petitions were filed by the concerned affected persons which were already
pending before the Court and it was the step taken by the Railway
Administration itself which framed the Scheme for their absorption. In
such circumstances, the question of fixing the rationality of cut off date
in the said Scheme arose for consideration and the Court was of the view
that while implementing the Scheme, those whose services were terminated
before January 01, 1984, they would be discriminated against. Thus, while
giving the direction to implement the scheme which was framed by the
Railway Administration itself, the Court gave the direction to start
absorbing those with longest service, which is clear from the reading of
para 6 of the said judgment, and we reproduce the same hereunder:
“6. To avoid violation of Article 14, the scientific and equitable way of
implementing the scheme is for the Railway Administration to prepare, a
list of project casual labour with reference to each division of each
railway and then start absorbing those with the longest service. If in the
process any adjustments are necessary, the same must be done. In giving
this direction, we are considerably influenced by the statutory recognition
of a principle well known in industrial jurisprudence that the men with
longest service shall have priority over those who have joined later on.
In other words, the principle of last come first go or to reverse it first
come last go as enunciated in Section 25-G of the Industrial Disputes Act,
1947 has been accepted. We direct accordingly.”
This case, therefore, may not be of direct relevance.
Next judgment is of the Constitution Bench judgment of this Court in the
case of K.C. Sharma & Ors. v. Union of India[2]. In this case the Court
was directly concerned with the issue of granting benefit of the earlier
judgment. The Government had passed Notification dated December 05, 1988
which obviously affected the pension of retired employees, retrospectively.
These persons had not challenged the said Notification within the
limitation period. However, in some other case filed by similarly situated
persons, a Full Bench of the Central Administrative Tribunal declared the
Notification invalid vide its judgment dated December 16, 1993. After this
Notification was declared invalid, the appellants also claimed the benefit
of that judgment from the Railways. On Railways refusal to extend the
benefit, they filed Application in the Central Administrative Tribunal in
April 1994. This Application was dismissed by the Tribunal as time barred
and against the judgment of the Tribunal these appellants had approached
this Court. The Court, in a brief order which runs into six paragraphs,
held that delay in filing the Application should have been condoned and the
appellants should have been given relief by the Tribunal on the same terms
as were granted to others by the Full Bench judgment of the Tribunal .
After stating the aforesaid facts in the earlier paragraphs of the order,
the reasons for extending the benefit are contained in para 6 thereof,
which reads as under:
“6. Having regard to the facts and circumstances of the case, we are of
the view that this was a fit case in which the Tribunal should have
condoned the delay in the filing of the application and the appellants
should have been given relief in the same terms as was granted by the Full
Bench of the Tribunal. The appeal is, therefore, allowed, the impugned
judgment of the Tribunal is set aside, the delay in filing of OA No. 774 of
1994 is condoned and the said application is allowed. The appellants would
be entitled to the same relief in the matter of pension as has been granted
by the Full Bench of the Tribunal in its judgment dated 16-12-1993 in Oas
No. 395-403 of 1993 and connected matters. No order as to costs.”
Immediate comment which is called for by us to the aforesaid
judgment is that there is no detailed discussion in the said order. What
can be observed from the reading of this order is that the earlier judgment
of the Tribunal striking down the Notification dated December 05, 1988 was
treated as judgment in rem. Naturally, when the Notification itself is
struck down and it was a matter of pension, benefit thereof was to be given
to the others as well. It appears that for this reason the Constitution
Bench observed that delay should have been condoned giving relief to the
appellants also in the same terms as was granted by the Full Bench of the
Tribunal.
In State of Karnataka & Ors. v. C. Lalitha[3], which is the next case
relied upon by the learned counsel for the respondents, our attention was
drawn to the following passage from the said judgment:
“29. Service jurisprudence evolved by this Court from time to time
postulates that all persons similarly situated should be treated similarly.
Only because one person has approached the court that would not mean that
persons similarly situated should be treated differently. It is
furthermore well settled that the question of seniority should be governed
by the rules. It may be true that this Court took notice of the subsequent
events, namely, that in the meantime she had also been promoted as
Assistant Commissioner which was a Category I post but the direction to
create a supernumerary post to adjust her must be held to have been issued
only with a view to accommodate her therein as otherwise she might have
been reverted and not for the purpose of conferring a benefit to which she
was not otherwise entitled to.”
We have to understand the context in which the aforesaid observations came
to be made. That was a case where the order passed in the first round of
litigation between the same parties came up for construction and its
effect. The background in which the issue arose was that an amendment made
in the reservation policy of the State was challenged in N.T. Devin Katti
v. Karnataka Public Service Commission[4]. In that judgment, this Court
had declared that the revised reservation policy was not applicable to the
selections initiated prior thereto. It resulted in the consequential
direction to the State Government to appoint N.T. Devin Katti (appellant in
that case) on the post of Tehsildar with retrospective effect. At the same
time, it was also made clear that for the purposes of seniority such
persons would have to be placed below the last candidates appointed in the
year 1976 and they would also be not entitled to any back wages. Insofar
as, respondent C. Lalitha is concerned, on the basis of revised reservation
policy, she was appointed as Tehsildar. After the rendition of the
aforesaid judgment in N.T. Devin Katti's case (supra), she approached the
Karnataka Administrative Tribunal by filing an OA claiming appointment as
Assistant Commissioner. The Tribunal dismissed the OA. However, her appeal
against the order of the Tribunal was allowed by this Court vide orders
dated March 15, 1994, taking note of the fact that she was selected and
shown in the first list, which was upheld by the Court in the case of N.T.
Devin Katti (supra). Since she had already been promoted to Class I Post
of Assistant Commissioner by then, for her appointment the Court directed
that if no vacancies are available, the State Government will create a
supernumerary post and for the purpose of seniority, she had to be placed
below the last candidate appointed in the year 1976 and was not entitled to
any back wages. It is clear from these directions that her appeal was
allowed giving same directions as given in N.T. Devin Katti (supra). It so
happened that though her name was in the first list, which was upheld in
N.T. Devin Katti's case (supra), her rank was little below and there were
few persons above her. As per her rank in the general merit Category I
posts, after taking the opinion of the Public Service Commission, it was
decided by the Government to consider her for the post of Assistant
Controller of Accounts , a Category I Post, as the marks secured by her
were below the marks secured by the candidates selected as Assistant
Controller of Accounts. She refused to accept the said post and approached
the Tribunal again. The Tribunal dismissed the OA filed by her. Against
that order of the Tribunal she approached the Karnataka High Court, which
allowed the writ petition directing the State to implement order dated
March 15, 1994 which was passed by this Court in the earlier round.
Against this order of the High Court, the State preferred appeal and it is
in this backdrop that effect of the earlier order dated March 15, 1994 came
up for consideration. It was argued by the State that effect of the order
dated March 15, 1994 was to relegate the parties to the same position as if
the reservation policy was not amended and if so construed, the respondent
having been placed in the supplementary list could not have been laid any
claim for any post in the administrative service. It is this contention
which was accepted by this Court noticing another crucial fact that there
were many persons who were higher in the merit than the respondent and the
effect of the earlier order passed by this Court could not have been to
ignore the said merit list and give something to the respondent which was
not admissible in law. The Court held that merit should be the sole
criteria for selection of candidates and the earlier judgment was to be
construed as if it had been rendered in accordance with law. While holding
so, the Court also sited many case law to demonstrate that the judgments
are not to be read as a statute. It is in the aforesaid context that
observations are made in para 29, on which heavy reliance has been placed
by the respondent.
When we understand the impact of the observations
contextually, we find that again the issue at hand is totally different.
Next case in the line, on which the respondents rely, is Maharaj Krishna
Bhatt & Anr. v. State of Jammu & Kashmir[5]. In that case, the appellants
and some other Constables approached the Chief Minister of the respondent
State for relaxation of rules relating to 50% direct recruitment quota for
appointment as Sub-Inspectors of Police (PSI). The Chief Minister's office
in turn called for the Director General's recommendations, who recommended
the name of one person only, namely, Hamidullah Dar. Hamidullah Dar was
accordingly appointed as PSI with effect from April 01, 1987. Thereupon,
other persons also approached the Court. In the case of one Abdul Rashid
Rather, the Single Judge of the High Court allowed his writ petition. The
respondent State filed LPA which was dismissed, and subsequently, special
leave petition was also dismissed by this Court. Consequently, Abdul
Rashid Rather was also appointed as PSI. It would be pertinent to mention
that the appellants in the said appeal, along with two others, had also
filed the writ petition in the year 1987, which was disposed of on
September 13, 1991 and a direction was issued to the Director General of
Police to consider their cases for appointment to the post of PSI by
relaxing of rules. Pursuant to the said directions, the Director General
of Police considered and rejected the cases of the appellants for
appointment without giving any reasons. These appellants initially filed
the contempt petition, but thereafter preferred fresh writ petition being
Writ Petition No. 3735 of 1997. This writ petition of the appellants was
pending when the orders of appointment came to be passed in the writ
petition filed by Abdul Rashid Rather and on the basis of that judgment,
Abdul Rashid Rather had been given the appointment with effect from April
01, 1987. In this scenario, when writ petition of the appellants came up
for hearing before the Single Judge of the High Court, it was allowed vide
judgment dated April 30, 2001 following the judgment in the case of Abdul
Rashid Rather, which had been affirmed by this Court as well. However, the
State filed appeal thereagainst and this appeal was allowed by the Division
Bench of the High Court. Even the review petition filed by the appellants
was dismissed by the Division Bench. Special Leave Petition was filed
challenging the judgment of the Division Bench, which was the subject
matter in the case of Maharaj Krishan Bhatt (supra). Leave was granted and
ultimately appeal was allowed holding that the appellants were also
entitled to the same treatment. While doing so, the Court made the
following observations:
“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.”
No doubt, the Court extended the benefit of the decision in Abdul Rashid
Rather's case to the appellants. However, what needs to be kept in mind is
that these appellants had not taken out legal proceedings after the
judgment in Abdul Rashid Rather's case. They had approached the Court well
in time when Abdul Rashid Rather had also filed the petition.
The submission of learned counsel for the appellants, on the other hand, is
that the respondents did not approach the Court earlier and acquiesced into
the termination orders. Approaching the Court at such a belated stage,
after the judgment in some other case, was clearly impermissible and such a
petition should have been dismissed on the ground of laches and delays as
well as acquiescence. It was submitted that in such circumstances this
Court has taken consistent view to the effect that benefit of judgment in
the other case should not be extended even if the persons in the two sets
of cases were similarly situated. Mr. P.N. Misra, learned senior counsel
appearing for the appellants, pointed out in this behalf that though the
orders were passed by the appellants on June 22, 1987, the respondents have
filed their claim petition before the Tribunal only in the year 1996, i.e.
after a period of 9 years from the date of passing of the orders. He drew
our attention to the following observations in M/s. Rup Diamonds & Ors. v.
Union of India & Ors.[6]:
“8. Apart altogether from the merits of the grounds for rejection – on
which it cannot be aid that the mere rejection of the special leave
petitions in the cases of M/s Ripal Kumar & Co., and M/s. H. Patel & Co.,
could, by itself, be construed as the imprematur of this Court on the
correctness of the decisions sought to be appealed against – there is one
more ground which basically sets the present case apart. Petitioner are re-
agitating claims which they had not pursued for several years. Petitioners
were not vigilant but were content to be dormant and chose to sit on the
fence till somebody else's case came to be decided. Their case cannot be
considered on the analogy of one where a law had been declared
unconstitutional and void by a court, so as to enable persons to recover
monies paid under the compulsion of a law later so declared void. There is
also an unexplained, inordinate delay in preferring this writ petition
which is brought after almost an year after the first rejection. From the
orders in M/s Ripal Kumar & Co.'s case and M/s H. Patel & Co.'s case it is
seen that in the former case the application for revalidation and
endorsement was made on March 12, 1984 within four months of the date of
the redemption certificate dated November 16, 1983 and in the latter case
the application for revalidation was filed on June 20, 1984 in about three
months from the Redemption Certificate dated March 9, 1984.”
That case pertains to import facility for import of OGL items available
under para 185(3) and (4) of Import – Export Policy, 1982-83 to export
houses after discharging export obligation on advance/imprest licence. The
petitioners had applied for, and were granted, this imprest licence for the
import of uncut and unset diamonds with the obligation to fulfil certain
export commitment for the export, out of India, of cut and polished
diamonds of the FOB value, stipulated in each of the imprest licences. As
per the petitioners, they have discharged their export obligation and,
therefore, in terms of para 185(4) of the Import – Export policy, they were
entitled to the facility for the import of OGL items. However, they sought
revalidation four years after discharge of export obligation and five years
after the expiry of the licence. This claim was rejected by the
authorities on the ground of delay. Writ petition was filed in this Court
one year after such rejection. In these circumstances, the Court dismissed
the writ petition for approaching the Court belatedly and refused to follow
the orders passed in another petitions by this Court, which was sought to
be extended on the ground that the petitions were exactly similar to those
petitions which were preferred in another case.
No doubt, writ petition was dismissed on the ground of
unexplained inordinate delay, but it would be necessary to observe that it
was not a service matter. However, the principle of delay and laches would
have some relevance for our purposes as well.
State of Karnataka & Ors. v. S.M. Kotrayya & Ors.[7] is, on the other hand,
a service matter. Here, the respondents, while working as teachers in the
Department of Education, availed of Leave Travel Concession (LTC) during
the year 1981-82. But later it was found that they had never utilised the
benefit of LTC but had drawn the amount and used it. Consequently,
recovery was made in the year 1984-86. Some persons in similar cases
challenged the recovery before the Administrative Tribunal which allowed
their Applications in August 1989. On coming to know of the said decision,
the respondents filed Applications in August 1989 before the Tribunal with
an application to condone the delay. The Tribunal condoned the delay and
allowed the OAs. Appeal against the said order was allowed by this Court
holding that there was unexplained delay in approaching the Tribunal. The
Court relied upon the Constitution Bench case in S.S. Rathore v. State of
M.P.[8], which deals with the manner in which limitation is to be counted
while approaching the Administrate Tribunal under the Administrative
Tribunal Act, 1985. Here again, on the ground of delay, the Court refused
to extend the benefit of judgment passed in respect of other similarly
situated employees.
Both these judgments, along with some other judgments, were take note of in
U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr.[9] That was a case where the
issue pertained to entitlement of the employees of U.P. Jal Nigam to
continue in service up to the age of 60 years. In Harwindra Kumar v. Chief
Engineer, Karmik[10] this Court had earlier held that these employees were
in fact entitled to continue in service up to the age of 60 years. After
the aforesaid decision, a spat of writ petitions came to be filed in the
High Court by those who had retired long back. The question that arose for
consideration was as to whether the employees who did not wake up to
challenge their retirement orders, and accepted the same, and had collected
their post retirement benefits as well, could be given relief in the light
of the decision delivered in Harwindra Kumar (supra). The Court refused to
extend the benefit applying the principle of delay and laches. It was held
that an important factor in exercise of discretionary relief under Article
226 of the Constitution of India is laches and delay. When a person who is
not vigilant of his rights and acquiesces into the situation, his writ
petition cannot be heard after a couple of years on the ground that the
same relief should be granted to him as was granted to the persons
similarly situated who were vigilant about their rights and challenged
their retirement. In para 7, the Court quoted from M/s. Rup Diamonds &
Ors. (supra). In para 8, S.M. Kotrayya (supra) was taken note of. Some
other judgments on the same principle of laches and delays are taken note
of in paras 9 to 11 which are as follows:
“9. Similarly in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, this
Court reaffirmed the rule if a person chose to sit over the matter and then
woke up after the decision of the court, then such person cannot stand to
benefit. In that case it was observed as follows: (SCC p. 542)
“The delay disentitles a party to discretionary relief under Article 226
or Article 32 of the Constitution. The appellants kept sleeping over their
rights for long and woke up when they had the impetus from Union of India
v. Virpal Singh Chauhan, (195) 6 SCC 684. The appellants' desperate
attempt to redo the seniority is not amenable to judicial review at this
belated stage.”
10. In Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, it was
observed as follows:
“9. We, however, clarify that in view of our finding that the judgment of
the Tribunal in R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on
17-3-1987, gives relief only to Joshi, the benefit of the said judgment of
the Tribunal cannot be extended to any other person. The respondent C.K.
Dharagupta (since retired) is seeking benefit of Joshi case. In view of
our finding that the benefit of the judgment of the Tribunal dated 17-3-
1987 could only be given to Joshi and nobody else, even Dharagupta is not
entitled to any relief.”
11. In Govt. of W.B. v. Tarun K. Roy, (1997) 3 SCC 395, their Lordships
considered delay as serious factor and have not granted relief. Therein it
was observed as follows: (SCC pp. 359-60, para 34)
“34. The respondents furthermore are not even entitled to any relief on
the ground of gross delay and laches on their part in filing the writ
petition. The first two writ petitions were filed in the year 1976 wherein
the respondents herein approached the High Court in 1992. In between 1976
and 1992 not only two writ petitions had been decided, but one way or the
other, even the matter had been considered by this Court in State of W.B.
v. Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr.
Krishnamani states, should be a ground for denying the relief to the other
persons similarly situated would operate against the respondents.
Furthermore, the other employees not being before this Court although they
are ventilating their grievances before appropriate courts of law, no order
should be passed which would prejudice their cause. In such a situation,
we are not prepared to make any observation only for the purpose of grant
of some relief to the respondents to which they are not legally entitled to
so as to deprive others therefrom who may be found to be entitled thereto
by a court of law.”
The Court also quoted following passage from the Halsbury's Laws of England
(para 911, p.395):
“In determining whether there has been such delay as to amount to laches,
the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii)any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of
a right is in progress, but assent after the violation has been completed
and the claimant has become aware of it. It is unjust to give the claimant
a remedy where, by his conduct, he has done that which might fairly be
regarded as equivalent to a waiver of it; or where by his might fairly be
regarded as equivalent to a waiver of it; or where by his conduct and
neglect, though not waiving the remedy, he has put the other party in a
position in which it would not be reasonable to place him if the remedy
were afterwards to be asserted. In such cases lapse of time and delay are
most material. Upon these considerations rests the doctrine of laches.”
Holding that the respondents had also acquiesced in accepting the
retirements, the appeal of U.P. Jal Nigam was allowed with the following
reasons:
“13. In view of the statement of law as summarised above, the respondents
are guilty since the respondents have acquiesced in accepting the
retirement and did not challenge the same in time. If they would have been
vigilant enough, they could have filed writ petitions as others did in the
matter. Therefore, whenever it appears that the claimants lost time or
whiled it away and did not rise to the occasion in time for filing the writ
petitions, then in such cases, the court should be very slow in granting
the relief to the incumbent. Secondly, it has also to be taken into
consideration the question of acquiescence or waiver on the part of the
incumbent whether other parties are going to be prejudiced if the relief is
granted. In the present case, if the respondents would have challenged
their retirement being violative of the provisions of the Act, perhaps the
Nigam could have taken appropriate steps to raise funds so as to meet the
liability but by not asserting their rights the respondents have allowed
time to pass and after a lapse of couple of years, they have filed writ
petitions claiming the benefit for two years. That will definitely require
the Nigam to raise funds which is going to have serious financial
repercussions on the financial management of the Nigam. Why should the
court come to the rescue of such persons when they themselves are guilty of
waiver and acquiescence?”
The legal principles which emerge from the reading of the aforesaid
judgments, cited both by the appellants as well as the respondents, can be
summed up as under:
(1) Normal rule is that when a particular set of employees is given
relief by the Court, all other identically situated persons need to be
treated alike by extending that benefit. Not doing so would amount to
discrimination and would be violative of Article 14 of the Constitution of
India. This principle needs to be applied in service matters more
emphatically as the service jurisprudence evolved by this Court from time
to time postulates that all similarly situated persons should be treated
similarly. Therefore, the normal rule would be that merely because other
similarly situated persons did not approach the Court earlier, they are not
to be treated differently.
(2) However, this principle is subject to well recognized exceptions in
the form of laches and delays as well as acquiescence. Those persons who
did not challenge the wrongful action in their cases and acquiesced into
the same and woke up after long delay only because of the reason that their
counterparts who had approached the Court earlier in time succeeded in
their efforts, then such employees cannot claim that the benefit of the
judgment rendered in the case of similarly situated persons be extended to
them. They would be treated as fence-sitters and laches and delays, and/or
the acquiescence, would be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where the
judgment pronounced by the Court was judgment in rem with intention to give
benefit to all similarly situated persons, whether they approached the
Court or not. With such a pronouncement the obligation is cast upon the
authorities to itself extend the benefit thereof to all similarly situated
person. Such a situation can occur when the subject matter of the decision
touches upon the policy matters, like scheme of regularisation and the like
(see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if
the judgment of the Court was in personam holding that benefit of the said
judgment shall accrue to the parties before the Court and such an intention
is stated expressly in the judgment or it can be impliedly found out from
the tenor and language of the judgment, those who want to get the benefit
of the said judgment extended to them shall have to satisfy that their
petition does not suffer from either laches and delays or acquiescence.
Viewed from this angle, in the present case, we find that the selection
process took place in the year 1986. Appointment orders were issued in the
year 1987, but were also cancelled vide orders dated June 22, 1987. The
respondents before us did not chalelnge these cancelleation orders till the
year 1996, i.e. for a period of 9 years. It means that they had accepted
the cancellation of their appointments. They woke up in the year 1996 only
after finding that some other persons whose appointment orders were also
cancelled got the relief. By that time, nine years had passed. The
earlier judgment had granted the relief to the parties before the Court.
It would also be pertinent to highlight that these respondents have not
joined the service nor working like the employees who succeeded in earlier
case before the Tribunal. As of today, 27 years have passed after the
issuance of cancellation orders. Therefore, not only there was unexplained
delay and laches in filing the claim petition after period of 9 years, it
would be totally unjust to direct the appointment to give them the
appointment as of today, i.e. after a period of 27 years when most of these
respondents would be almost 50 years of age or above.
For all the foregoing reasons, we allow the appeal and set aside the order
of the High Court as well as that of the Tribunal. There shall, however,
be no order as to costs.
.............................................J.
(J. CHELAMESWAR)
.............................................J.
(A.K. SIKRI)
New Delhi;
October 17, 2014.
ITEM NO.1A COURT NO.1 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal NO....... of 2014 @ Petition(s) for Special Leave to Appeal
(C) No(s). 18639/2012
STATE OF U.P.& ORS. Petitioner(s)
VERSUS
ARVIND KUMAR SRIVASTAVA & ORS. Respondent(s)
Date : 17/10/2014 The matter was called on for pronouncement of
Judgment today.
For Appellant(s) Mr. P.N. Misra,Sr.Adv.
Mr. Abhisth Kumar,Adv.
Mr. Sudeep Kumar,Adv.
Mr. Som Raj Choudhury,Adv.
For Respondent(s) Mr. Praveen Swarup,Adv.
Ms. Sushma Verma,Adv.
Mr. R.K. Singh,Adv.
Mr. S.R. Singh,Sr.Adv.
Mr. Sushant K. Yadav,Adv.
Mohd. Muztaba,Adv.
For Ms. Namita Choudhary,Adv.
Mr. Puneet Jain,Adv.
Ms. Christi Jain,Adv.
Ms. Khushbu Jain,Adv.
Ms. Chhaya Kirti,Adv.
For Ms. Pratibha Jain,Adv.
Hon'ble Mr.Justice A.K.Sikri pronounced the Judgment of the
Bench comprising Hon'ble Mr.Justice J.Chelameswar and His Lordship.
Leave granted.
Appeal is allowed and the order of the High Court as well as
that of the Tribunal are set aside with a further direction that there
shall, however, be no order as to costs, in terms of the signed reportable
judgment
(G.V.Ramana) (Vinod Kulvi)
Court Master Asstt.Registrar
(Signed reportable Judgment is placed on the file)
-----------------------
[1] (1985) 2 SCC 648
[2] (1997) 6 SCC 721
[3] (2006) 2 SCC 747
[4] (1990) 3 SCC 157
[5] (2008) 9 SCC 24
[6] (1989) 2 SCC 356
[7] (1996) 6 SCC 267
[8] (1989) 4 SCC 582
[9] (2006) 11 SCC 464
[10] (2005) 13 SCC 300
