IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4986-4989 OF 2007
Vijay Kumar Kaul and others ….. Appellants
Versus
Union of India and others … Respondents
J U D G M E N T
Dipak Misra, J.
The appellants, four in number, participated in a selection process
conducted by the Second Field Ordnance Depot (2 FOD) in the year 1984 for
the post of Lower Division Clerks (LDCs). Despite their selection for the
post in question they were not issued appointment letters on the pretext
that there was a ban on appointments. In December 1993, pursuant to the
order passed in OA No. 29/jk/92 dated 24.8.1993 by the Chandigarh Bench of
the Central Administrative tribunal (for short ‘the Tribunal’), respondent
No. 4 was issued an appointment letter. The appellant Nos. 1 to 3 were
given appointment in May, 1996 on the basis of the directions issued on
24.7.1995 by the High Court of Jammu and Kashmir in SWP No. 1052 of 1991.
2. It is worth noting that Parveen Singh and others, whose names, had
figured in the select list, being aggrieved due to non appointment, had
preferred OA No. 539-HP of 1986 before the Chandigarh Bench of the tribunal
which allowed the OA vide order dated 25.8.1987 directing the respondent
herein to issue appointment letters to them. The respondents instead of
appointing the said Parveen Singh and others against the vacancies in 9
FOD, where there were ten vacancies of LDCs, appointed them against the
vacancies falling in 2 FOD where there were 27 vacancies for LDCs with
effect from 1.1.1990.
3. As set forth, said Parveen Singh and others filed second OA No. 1476-
pb-1991 before the Chandigarh Bench of the tribunal with a prayer to issue
a direction to the respondents to appoint them as LDCs with effect from
1.5.1985 with all consequential benefits including seniority, pay and
allowances, etc. on the foundation that similarly situated persons who were
selected along with them had been appointed with effect from 1985. The
tribunal allowed the application vide order dated 13.10.2000 directing that
their appointment shall be treated with effect from 1.5.1985 and they shall
be extended the benefit of fifty per cent of back wages and other
consequential reliefs.
4. The aforesaid order was called in question by the respondents
before the High Court of Punjab and Haryana in CWP No. 1158 of 2001 and a
Division Bench of the High Court, as per order dated 12.7.2001, set aside
the order of the tribunal to the extent of grant of back wages but did not
interfere with the direction ante-dating their date of appointment and
other consequential reliefs granted by the tribunal.
5. As has been stated earlier that the appellants had approached the
tribunal and were appointed on two different dates sometime in December,
1993 and May, 1996. After the High Court of Punjab and Haryana passed the
order, the respondents conferred the benefit on said Parveen Singh and
others. Thereafter, the present appellants submitted a series of
representations to extend to them the similar benefits on the foundation of
parity. The said prayer was negatived by the respondents by order dated
21.7.2004.
6. Being dissatisfied with the said action of the respondents the
appellants knocked at the doors of the Principal Bench of the tribunal in
OA No. 2082 of 2004. It was contended before the tribunal that grave
injustice had been done to them by the respondents inasmuch as they were
not given the equal treatment that was given to similarly placed employees;
and that their seniority position and prospects for promotion had been
immensely affected. The stance and stand put forth by the appellants was
resisted by the respondents contending, inter alia, that as the appellants
were not parties to the application before the Chandigarh tribunal and were
not covered by the judgment of Punjab and Haryana High Court, they were not
extended the benefit; that only those general category candidates who were
placed higher in merit list were appointed prior to them excepting one Kalu
Ram who belonged to the Scheduled Caste category; that the appellants could
not have been appointed as there was a ban and thereafter they were
appointed as per the direction of the High Court of Jammu and Kashmir; and
that the tribunal in OA No. 29/jk/92 preferred on the question of
appointment of the appellant No. 4 had clearly stated that the appointment
shall have prospective effect and he would not be entitled to any back
wages or seniority and the said order has gone unassailed; and hence, the
claim put forth in the petition did not merit consideration.
7. The tribunal adverted to various orders passed by the tribunal at
various junctures and the orders passed by the Punjab and Haryana High
Court and came to hold that as far as the appellant No. 4 is concerned his
case had attained finality; that the decision rendered in the case of
Parveen Singh and others could not be treated as judgment in rem but a
judgment in personam; and that the appellants had been given appointment as
per their placement in the merit list regard being had to availability of
vacancies and hence, it could not relate to an earlier date, especially
when they failed to show that any person junior to them had been given
appointment from a retrospective date or extended benefit. Being of this
view the tribunal dismissed the Original Application.
8. Aggrieved by the aforesaid order the appellants invoked the
jurisdiction of the High Court of Delhi under Articles 226 and 227 of the
Constitution of India seeking a writ of certiorari for quashment of the
order dated 10.3.2005 passed by the tribunal and also for quashing of the
orders by which their representations had been rejected and further pressed
for issue of a writ of mandamus commanding the respondents to extend the
similar benefits as had been extended to Parveen Singh and others in view
of the judgment rendered by Punjab and Haryana High Court.
9. The High Court, upon perusal of the order passed by the tribunal, the
decision rendered by the Punjab and Haryana High Court, and on considering
the factum of the delay and laches on the part of the appellants, and that
they had not been superseded as the select list was prepared in order of
merit, and appreciating the fact that the appointments had been made
strictly in accordance with the merit declined to interfere with the order.
10. We have heard Mr. Ashok Bhan, learned senior counsel for the
appellants and Mr. R.P. Bhatt, learned senior counsel for the respondents.
11. It is submitted by the learned senior counsel for the appellants that
the tribunal as well as the High Court have fallen into serious error by
expressing the view that the appointments were based on the merit list and,
therefore, there was no supersession of the appellants. It is urged by him
that neither the original application nor the writ petition could have been
dismissed on the ground of delay and laches, in view of the fact that the
appellants immediately approached the tribunal after the High Court
rendered its judgment on 12.7.2001. It is his further submission that a
serious anomalous situation has cropped up inasmuch as the candidates whose
names featured in one select list have been appointed at various times,
as a consequence of which their pay-scale, seniority and prospects for
promotion, have been put to jeopardy. The last limb of submission of the
learned senior counsel for the appellants is that both the forums have
failed to appreciate that injustice meted out to the appellants deserved to
be remedied applying the doctrine since the doctrine of parity and the
orders are vulnerable and deserved to be axed and appropriate direction are
to be issued considering similar benefits. The learned senior counsel to
bolster his submission has placed reliance on the decisions in K.C. Sharma
and others v. Union of India and others[1], Collector of Central Excise,
Calcutta v. M/s. Alnoori Tobacco Products and anr.[2], State of Karnataka
and others v. C. Lalitha[3] and Maharaj Krishan Bhatt and another v. State
of Jammu and Kashmir and others[4].
12. Mr. Bhatt, learned senior counsel for the respondents supported the
order passed by the tribunal as well as by the High Court on the ground
that the decisions which have been rendered by the tribunal and the High
Court are absolutely impregnable since the appellants had never approached
the tribunal at the earliest and only put forth their claims after success
of Parveen Singh and others. It is propounded by him that the appellants
while filing the various original applications seeking appointment had
never claimed the relief of appointment with retrospective effect and, in
fact, in the case of the appellant No. 4 the tribunal has categorically
stated that his appointment could have prospective effect which has gone
unassailed and, therefore, relying on the decision of Parveen Singh and
others is of no assistance to the appellants.
13. To appreciate the rival submissions raised at the Bar it is
appropriate to refer to the various orders passed at various times.
Parveen Singh and others approached the tribunal of Chandigarh at
Chandigarh Bench in the year 1986. The tribunal, by order dated 25.8.1987,
directed to issue appointment letters to the applicants against the
vacancies which had not been filled up, regard being had to the merit
position in the examination. Thereafter, the said Parveen Singh and others
were intimated vide letter dated 15.1.1991 to report at the office for
collection of their appointment letters on character verification and
eventually they got appointments. Later on Parveen Singh and others had
approached the tribunal to extend the monetary benefits from the date of
their appointment. The tribunal had directed to extend 50% of the actual
monetary benefits from the date of appointment along with other
consequential benefits. The Union of India and its authorities preferred
writ petition before the High Court of Punjab and Haryana, which passed the
following order: -
“For the reasons recorded above, the writ petition is partly
allowed and the order of the tribunal is quashed to the extent
it grants 50% back wages. However, we do not find any infirmity
in keeping intact the other reliefs granted by the tribunal,
namely, ante-dating of appointment of respondent Nos. 1 to 7 and
fixation of their pay with all consequential benefits of
increments etc. with effect from the date, all other candidates
placed on the panel of selected candidates were appointed. No
order as to costs.”
14. While Parveen Singh and others were proceeding in this manner,
appellant No. 4, Ujwal Kachroo, approached the tribunal at Jammu. The
tribunal allowed OA and directed to issue appointment letter to the
applicant for the post for which he was duly selected in 1984 within a
period of six weeks. It proceeded to clarify that the appointment shall
have prospective effect and he would not be entitled to any back wages or
seniority for the simple reason that it was neither his case nor anything
had been brought on record to show that any person junior to him in the
panel had already been appointed. At this juncture, three of the
appellants approached the High Court of Jammu and Kashmir and the learned
single Judge of the High Court of Jammu and Kashmir, by order dated
24.7.1995, had passed the following order: -
“I have heard learned counsel for the parties. The respondents
have no objection in appointing the petitioners as and when the
posts of LDCs become available and also subject to their merit
positions in the select list. Since the respondents have not
objected in making appointments of the petitioner, I allow this
writ petition and direct the respondents that the petitioners
shall be appointed as LDCs as and when the posts become
available, on their own turn, as per their merit position in the
select list.”
On the basis of the aforesaid order, the said appellants were given
appointment.
15. After the decision of the Punjab and Haryana High Court was delivered
the present appellants approached the Principal Bench of the tribunal and
the tribunal did not accept the prayer which has been given the stamp of
approval by the High Court.
16. In the course of hearing, learned senior counsel for the parties
fairly stated that the decision rendered by the High Court of Punjab and
Haryana has not been challenged before this Court and, therefore, we
refrain from commenting about the legal defensibility of the said decision.
However, it is clear as noon day that the appellants, neither in their
initial rounds before the tribunal nor before the High Court, ever claimed
any appointment with retrospective effect. In fact, the direction of the
in respect of appellant No. 4 in the OA preferred by the appellant No. 4
was absolutely crystal clear that it would be prospective. The said order
was accepted by the said appellant. However, as is manifest, after the
decision was rendered by the Punjab and Haryana High Court wisdom dawned or
at least they perceived so, and approached the Principal Bench for grant
of similar reliefs. In the petition before the tribunal, they had stated
in their factual portion which are to the following effect: -
“(n) That since at the time of filing writ by
applicant/petitioner Nos. 1,2 and 3 and an O.A. by
applicant/petitioner No. 4, the issue of entitlement to anti-
dating appointment and back wages was under adjudication before
the Hon’ble High Court of Punjab and Haryana in the case of
Parveen Singh & Ors., the applicants/petitioners in the present
O.A. did not seek such relief in their respective writ and O.A.
(o) That when the High Court upheld the orders of the tribunal
in case of Parveen Singh & Ors., that they are entitled to the
benefit of anti-dating appointment and the consequential
benefits, the applicants/petitioners made individual
representations to the respondents seeking the benefit of High
Court’s judgment dated 12.7.2001 delivered in C.W.P. No. 1156 of
2001. A true photocopy of this judgment is already available as
Annexure A-5 at page 22-32 of the O.A.”
17. Thus, it is demonstrable that they did not approach the legal forum
but awaited for the verdict of the Punjab and Haryana High Court. As far
as appellant No. 4 is concerned, we really see no justifiable reason on his
part to join the other appellants when he had acceded to the first judgment
passed in his favour to a limited extent by the tribunal. This was an
ambitious effort but it is to be borne in mind that all ambitions are
neither praiseworthy nor have the sanction of law. Be that as it may, they
approached the tribunal some time only in 2004. The only justification
given for the delay was that they had been making representations and when
the said benefit was declined by communication dated 31.7.2004, they moved
the tribunal. The learned senior counsel for the appellants fairly
stated that as the doctrine of parity gets attracted, they may only be
conferred the benefit of seniority so that their promotions are not
affected.
18. It is necessary to keep in mind that claim for the seniority is to be
put forth within a reasonable period of time. In this context, we may
refer to the decision of this Court in P.S. Sadasivaswamy v. State of Tamil
Nadu[5], wherein a two-Judge Bench has held thus: -
“It is not that there is any period of limitation for the Courts
to exercise their powers under Article 226 nor is it that there
can never be a case where the Courts cannot interfere in a
matter after the passage of a certain length of time. But it
would be a sound and wise exercise of discretion for the Courts
to refuse to exercise their extraordinary powers under Article
226 in the case of persons who do not approach it expeditiously
for relief and who stand by and allow things to happen and then
approach the courts to put forward stale claims and try to
unsettle matters.”
19. In Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan & Anr.[6]
this Court had held thus that delay or laches is one of the factors which
is to be borne in mind by the High Court when they exercise their
discretionary powers under Article 226 of the Constitution. In an
appropriate case the High Court may refuse to invoke its extraordinary
powers if there is such negligence or omission on the part of the applicant
to assert his right as taken in conjunction with the lapse of time and
other circumstances, causes prejudice to the opposite party. Even where
fundamental right is involved the matter is still within the discretion of
the Court as pointed out in Durga Prasad v. Chief Controller of Imports and
Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised
judicially and reasonably.
20. In City Industrial Development Corporation v. Dosu Aardeshir
Bhiwandiwala & Ors.[7] this Court has opined that one of the grounds for
refusing relief is that the person approaching the High Court is guilty of
unexplained delay and the laches. Inordinate delay in moving the court for
a Writ is an adequate ground for refusing a Writ. The principle is that
courts exercising public law jurisdiction do not encourage agitation of
stale claims and exhuming matters where the rights of third parties may
have accrued in the interregnum.
21. From the aforesaid pronouncement of law, it is manifest that a
litigant who invokes the jurisdiction of a court for claiming seniority, it
is obligatory on his part to come to the court at the earliest or at least
within a reasonable span of time. The belated approach is impermissible as
in the meantime interest of third parties gets ripened and further
interference after enormous delay is likely to usher in a state of anarchy.
22. The acts done during the interregnum are to be kept in mind and
should not be lightly brushed aside. It becomes an obligation to take into
consideration the balance of justice or injustice in entertaining the
petition or declining it on the ground of delay and laches. It is a matter
of great significance that at one point of time equity that existed in
favour of one melts into total insignificance and paves the path of
extinction with the passage of time.
23. In the case at hand, as the factual matrix reveals, the appellants
knew about the approach by Parveen Singh and others before the tribunal and
the directions given by the tribunal but they chose to wait and to reap the
benefit only after the verdict. This kind of waiting is totally
unwarranted.
24. Presently we shall refer to the authorities commended by the learned
senior counsel for the appellants. In K.C. Sharma (supra) the factual
scenario was absolutely different and thus, distinguishable. In C. Lalitha
(supra) it has been held that justice demands that a person should not be
allowed to derive any undue advantage over other employees. The concept of
justice is that one should get what is due to him or her in law. The
concept of justice cannot be stretched so as to cause heart-burning to more
meritorious candidates. In our considered opinion, the said decision does
not buttress the case of the appellants.
25. In Maharaj Krishan Bhat (supra), the appellants had made a
representation on 8.1.1987. A similar representation was sent by one Abdul
Rashid on that date to the Hon’ble Chief Minister of State of Jammu and
Kashmir with a request to consider the case for appointment to the post of
PSI by granting necessary relaxation in rules against 50% direct
recruitment quota. The Director General of Police vide his letter dated
23.1.1987 recommended the name of Hamidullah Dar, one of the applicants,
for appointment and he was appointed as PSI vide order dated 1.4.1987. The
other appellants were not extended the benefit of appointment. Under those
circumstances the High Court of Jammu and Kashmir in SWP No. 351 of 1987
directed the Director General of Police to consider the case of the
appellants. Thereafter Abdul Rashid filed a similar petition which was
admitted. Pursuant to the direction of the High Court the Director General
of Police considered the applications of Mohd. Abbas and Mohd. Amim but
rejected the prayer on 13.12.1991. When the matter of Abdul Rashid, the
appellant, came up the learned single Judge allowed the writ petition
relying on the earlier judgment. The Government of Jammu and Kashmir filed
Letters Patent Appeal which was dismissed. In the context, this Court
opined that the Division Bench should not have refused to follow the
judgment by another Division Bench. Attention was raised that initial
violation was committed by the State Government and which was violative of
Articles of 14 and 16 of the Constitution and the said mistake could not be
perpetuated. In that context it was held as follows: -
“21. It was no doubt contended by the learned counsel for the
respondent State that Article 14 or 16 of the Constitution
cannot be invoked and pressed into service to perpetuate
illegality. It was submitted that if one illegal action is
taken, a person whose case is similar, cannot invoke Article 14
or 16 and demand similar relief illegally or against a statute.”
Thereafter the Bench proceeded to state as follows: -
“23. In fairness and in view of the fact that the decision in
Abdul Rashid Rather had attained finality, the State authorities
ought to have gracefully accepted the decision by granting
similar benefits to the present writ petitioners. It, however,
challenged the order passed by the Single Judge. The Division
Bench of the High Court ought to have dismissed the letters
patent appeal by affirming the order of the Single Judge. The
letters patent appeal, however, was allowed by the Division
Bench and the judgment and order of the learned Single Judge was
set aside. In our considered view, the order passed by the
learned Single Judge was legal, proper and in furtherance of
justice, equity and fairness in action. The said order,
therefore, deserves to be restored.”
26. We respectfully concur with the said observations but we cannot be
oblivious of the fact that the fact situation in that case was totally
different. Hence, the said decision is not applicable to the case at hand.
27. In the case at hand it is evident that the appellants had slept over
their rights as they perceived waiting for the judgment of the Punjab and
Haryana High Court would arrest time and thereafter further consumed time
submitting representations and eventually approached the tribunal after
quite a span of time. In the meantime, the beneficiaries of Punjab and
Haryana High Court, as we have been apprised, have been promoted to the
higher posts. To put the clock back at this stage and disturb the
seniority position would be extremely inequitable and hence, the tribunal
and the High Court have correctly declined to exercise their jurisdiction.
28. Another aspect needs to be highlighted. Neither before the tribunal
nor before the High Court, Parveen Singh and others were arrayed as
parties. There is no dispute over the factum that they are senior to the
appellants and have been conferred the benefit of promotion to the higher
posts. In their absence, if any direction is issued for fixation of
seniority, that is likely to jeopardise their interest. When they have not
been impleaded as parties such a relief is difficult to grant. In this
context we may refer with profit to the decision in Indu Shekhar Singh &
Ors. v. State of U.P. & Ors.[8] wherein it has been held thus: -
“There is another aspect of the matter. The appellants herein
were not joined as parties in the writ petition filed by the
respondents. In their absence, the High Court could not have
determined the question of inter se seniority.”
29. In Public Service Commission, Uttaranchal v. Mamta Bisht & Ors.[9]
this Court while dealing with the concept of necessary parties and the
effect of non-impleadment of such a party in the matter when the selection
process is assailed observed thus: -
“7. ……. In Udit Narain Singh Malpaharia v. Additional Member,
Board of Revenue, Bihar & Anr., AIR 1963 SC 786, wherein the
Court has explained the distinction between necessary party,
proper party and proforma party and further held that if a
person who is likely to suffer from the order of the Court and
has not been impleaded as a party has a right to ignore the said
order as it has been passed in violation of the principles of
natural justice. More so, proviso to Order I, Rule IX of Code
of Civil Procedure, 1908 (hereinafter called CPC) provide that
non-joinder of necessary party be fatal. Undoubtedly,
provisions of CPC are not applicable in writ jurisdiction by
virtue of the provision of Section 141, CPC but the principles
enshrined therein are applicable. (Vide Gulabchand Chhotalal
Parikh v. State of Gujarat; AIR 1965 SC 1153; Babubhai Muljibhai
Patel v. Nandlal, Khodidas Barat & Ors., AIR 1974 SC 2105; and
Sarguja Transport Service v. State Transport Appellate Tribunal,
Gwalior & Ors. AIR 1987 SC 88).
8. In Prabodh Verma & Ors. v. State of U.P. & Ors. AIR 1985
SC 167; and Tridip Kumar Dingal & Ors. v. State of West Bengal &
Ors. (2009) 1 SCC 768 : (AIR 2008 SC (Supp) 824), it has been
held that if a person challenges the selection process,
successful candidates or at least some of them are necessary
parties.”
30. From the aforesaid enunciation of law there cannot be any trace of
doubt that an affected party has to be impleaded so that the doctrine of
audi alteram partem is not put into any hazard.
31. Analysed on the aforesaid premised reasons, we do not see any merit
in these appeals and, accordingly, they are dismissed with no order as to
costs.
............................................J.
[Dr. B. S.
Chauhan]
............................................J.
[Dipak Misra]
New Delhi;
May 25, 2012
-----------------------
[1] (1997) 6 SCC 721
[2] 2004 (6) SCALE 232
[3] (2006) 2 SCC 747
[4] (2008) 9 SCC 24
[5] AIR 1974 SC 2271
[6] AIR 2006 SC 1581
[7] AIR 2009 SC 571
[8] AIR 2006 SC 2432
[9] AIR 2010 SC 2613
