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Monday, January 5, 2015

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) |

                                                                  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

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