| When there is a judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not, an obligation was cast upon the authorities to itself extend the benefit thereof to all similarly situated person, who satisfy that their petition does not suffer from either laches and delays or acquiescence. |
| Respondents applied for the post of Homeopathic Compounder and Ward Boys and participated in the selection process. However, before the respondents could join their duties, new Chief Medical Officer cancelled the said appointments made by his predecessor. The respondents filed the suit challenging the orders cancelling their appointments. Suit was dismissed for non-prosecution. The respondents did not take any further steps in the said suit. Few other candidates who were also affected by the same orders, whereby their appointments were cancelled, approached the Tribunal challenging the legality, validity and proprietary of the said order. The Tribunal decided the case filed by them in their favour vide judgment dt.16-8-1991 holding the impugned order as illegal and void and quashed the same. The Tribunal's order dt.16-8-1991 attained finality and the persons who had approached the Tribunal got the appointments. In the year 1995, the respondents filed the writ petition claiming parity, which was allowed and HC by impugned order affirmed the order of Tribunal. Hence, appeal was filed before SC. The issue before SC was whether in the given case, approach of Tribunal and HC was correct in extending the benefit of earlier judgment of Tribunal, which had attained finality. The SC held that the selection process in instant case took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dt.22-6-1987. The respondents did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. 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 issue direction to give them the appointment as of today, i.e. after a period of 27 years when most of the respondents would be almost 50 years of age or above. Impugned orders of HC and Tribunal were set aside. The appeal was allowed. |
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.
Dated;October 17, 2014.
A.K. SIKRI, J.
Leave granted.
2)
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.
3)
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
Page 1
2
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.
4)
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
Page 2
3
appreciate as to how the respondents are placed.
5)
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.
6)
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
Page 3
4
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.
7)
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.
Page 4
5
8)
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.
9)
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.
Page 5
6
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.
10)
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
Page 6
7
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.
11)
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,
1
(1985) 2 SCC 648
Page 7
8
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,
Page 8
9
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:
Page 9
10
“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.
12)
Next judgment is of the Constitution Bench judgment of this Court in the
case of K.C. Sharma & Ors. v. Union of India2. 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.
2
This Application was
(1997) 6 SCC 721
Page 10
11
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
Page 11
12
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.
13)
In State of Karnataka & Ors. v. C. Lalitha3, 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.”
14)
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
3
(2006) 2 SCC 747
Page 12
13
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
4
(1990) 3 SCC 157
Page 13
14
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
Page 14
15
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.
15)
Next case in the line, on which the respondents rely, is Maharaj
Krishna Bhatt & Anr. v. State of Jammu & Kashmir5. 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
5
(2008) 9 SCC 24
Page 15
16
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
Page 16
17
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.”
16)
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
Page 17
18
had approached the Court well in time when Abdul Rashid Rather had
also filed the petition.
17)
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
6
(1989) 2 SCC 356
Page 18
19
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.”
18)
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
Page 19
20
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.
19)
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.
7
(1996) 6 SCC 267
Page 20
21
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.
20)
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, Karmik10 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
8
9
10
(1989) 4 SCC 582
(2006) 11 SCC 464
(2005) 13 SCC 300
Page 21
22
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
Page 22
23
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.”
Page 23
24
21)
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.”
22)
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
Page 24
25
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?”
23)
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.
Page 25
26
(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
Page 26
27
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.
24)
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.
Page 27
28
25)
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.
No comments:
Post a Comment