Singh Mand & Ors. Vs. Bhagwant Singh & Ors.  INSC 1321 (29 July
SINGH & ORS.
Appeal No. 6253 of 2008) JULY 29, 2009 [S.B. Sinha and Cyriac Joseph, JJ.] 2009
(12) SCR 143 The Judgment of the Court was delivered by S.B. SINHA, J.
This appeal is directed against an interim order dated 25th March,
2008 passed by a learned single judge of the Punjab & Haryana High Court
whereby and whereunder while issuing notice of motion, the reversion of the
first respondent was stayed.
The matter has a chequered career. The dispute involved in the
present appeals revolves round the seniority between the direct recruits and
the promotees. Indisputably, the conditions of service of the employees hereto
are governed by the Punjab Civil Services (Executive Branch) Rules, 1976. It
repealed and replaced the Rules framed in the year 1930. By reason of 1930
Rules, 68% slots were fixed in the roster for direct recruits. Rule 18 of 1976
Rules, however, provided for 50% of the slots to be filled by direct recruits.
The State sent requisition to the Punjab Public Service Commission
for filling up the vacancies of 48 officers; 24 by direct recruitment through
examination and 24 by nominating officers from the existing services to Punjab
Civil Services (PCS).
were issued by the State of Punjab for direct recruitment to the PCS.
However, the said requisition was modified in the year 1982
whereby the number of officers to be selected was raised to 80 wherefor a
revised advertisement was also issued. The Promotee Officers were brought into
the PCS in the year 1984. Appellants, however, were appointed in the year 1986
by direct recruitment with effect from 1985. Seniority list was finalized in
1993 in respect of the officers appointed to PCS from 1976-1985 wherein the
direct recruits who joined in 1986 were not included. Seniority list in respect
of officers directly recruited and appointed in 1986 was finalized in 1994 and
they were placed below the last officer in the seniority list of 1993.
Arvinder Singh Bains, the appellant no.3 herein, along with one
Dipinder Singh filed a writ petition (marked as Writ Petition No. 16516 of
1995) before the Punjab & Haryana High Court questioning the correctness of
the said 1994 seniority list. The said writ petition was dismissed. An
intra-court appeal preferred thereagainst was also dismissed by an order dated
A Special Leave Petition was filed thereagainst before this Court
on which leave was granted by an order dated 3.9.2001 and the appeal was
numbered as Civil Appeal No. 6373 of 2001. An interim order was passed to the
effect that any action taken would be subject to the outcome of the appeal.
An interlocutory application, however, was filed on or about
12.1.2006 marked as I.A. No. 2 of 2006 inter alia praying that no promotion be
made to the Indian Administrative Services (I.A.S.) cadre from the cadre of
P.C.S. which was dismissed by an order dated 12.01.2006 with the following
view of the fact that the order of this Court dated 3rd of September 2001
granting leave unambiguously states that any action taken will be subject to
the outcome of the appeal, we do not find that a case for modification thereof
is made out."
The said Civil Appeal was allowed by this Court by reason of
judgment and order dated 24.5.2006 [since reported in (2006) 6 SCC 673 (Arvinder
Singh Bains vs. State of Punjab & Ors.)], inter alia opining:
The appellant is not seeking any antedated promotion.
of the appellant is that the inter se seniority of 80 officers (40 direct
recruits + 40 promotees) should be fixed by applying roster provided for in
Rule 18 of the PCS (EB) Rules, 1976 by reading Rules 18 and 21 together."
In arriving at the said finding, this Court took into
consideration Rules 7, 8, 18 and 21 of the 1976 Rules.
Rule 7 lays down that the appointment to the service shall be made
from amongst the accepted candidates whose names have been duly entered in the
prescribed Registers. Rule 8 provides for various Registers of accepted
candidates, which are in the following terms:
Tahsildars A-II: Ministerial employees of the State Government (Classes II and
III) A-III:ETOs/BODs/DDPOs B: Direct recruits C: Other government servants
Rules 18 and 21 of the 1976 Rules read thus:
Appointment of accepted candidates to the service.--The Government shall make
appointments to the service in pursuance of Rule 7 from amongst the candidates
entered in the various Registers in a slab of 100 vacancies as follows:
first vacancy and thereafter every alternative vacancy shall be filled from
amongst candidates borne on Register `B';
2nd, 8th, 14th, 20th, 26th, 32nd, 38th, 44th, 50th, 56th, 62nd, 68th, 74th,
80th, 86th, 92nd, 96th and 100th vacancies shall be filled from amongst the
candidates borne on Register A-I;
4th, 10th, 16th, 22nd, 28th, 34th, 40th, 46th, 52nd, 58th, 64th, 70th, 76th,
82nd, 88th and 98th vacancies shall be filled from amongst candidates borne on
12th, 30th, 42nd, 54th, 66th, 78th and 90th vacancies shall be filled from
amongst the Excise and Taxation Officers accepted as candidates on Register
18th, 36th, 60th and 84th vacancies shall be filled from amongst the District
Development and Panchayat Officers or Block Development and Panchayat Officers
accepted as candidates on Register A-III; and (vi) the 6th, 24th, 48th, 72nd
and 94th vacancies shall be filled from amongst the candidates on Register
Seniority of the members of the service.--The seniority of officers appointed
to the service shall be determined in accordance with the order of their
appointment to the service;
that-- (a) if the order of appointment of any candidate is cancelled under the
provisions of Rule 20 and such candidate is subsequently appointed to the
service, the order of appointment for the purpose of this rule shall be
determined by the date of such subsequent appointment;
any officer appointed to the service fails to qualify himself for substantive
permanent appointment within the prescribed period of probation, the Government
may determine whether the date of his appointment for the purpose of this rule
shall be postponed by a period not exceeding the period by which such officer's
substantive permanent appointment is delayed beyond the prescribed period of
persons appointed as a result of earlier selection from a Register shall be
senior to those appointed as a result of subsequent selection from the same
It was held that appointment is made in terms of Rule 18 laying
down that the first vacancy and thereafter every alternative vacancy shall be
filled from amongst the candidates borne on Register `B'. In other words, the
first officer has to be appointed from Register `B' only. The stand of the
State that direct recruits have preference over others was also noticed. In
that view of the matter, it was opined that such a procedure must be reflected
in the matter of seniority also.
This Court held that Rule 18 should be read with Rule 21 for the
purpose of determining the seniority. It was held that as the selection process
for the promotees was shorter as compared to direct recruits and as the
promotees had enjoyed more perks by way of pay etc., the direct recruits should
not suffer any injustice in the matter of seniority also especially when both
the category of employees were selected against the same requisition sent by
the Government to the Punjab Public Service Commission. On the basis of the
aforementioned findings, this Court directed:
We have also referred to the decisions rendered by this Court. This Court said
rota and quota must necessarily be reflected in the seniority list and any
seniority list prepared in violation of rota and quota is bound to be negated.
The action of the respondents in determining the seniority is clearly in total
disregard of rota-quota rule prescribed in Rule 18 of the 1976 Rules. The
action is, therefore, clearly contrary to the law laid down by this Court.
Thus, we hold:
the action of the State is contrary to the 1976 Rules;
seniority under the 1976 Rules must be based on a collective interpretation of
Rule 18 and Rule 21 of the 1976 Rules;
action of the authorities is negation of Rule 18 of the 1976 Rules in
determining the seniority by the impugned order. Since the action is contrary
to law laid down by this Court, we have no hesitation in allowing the appeal
and grant the relief as prayed for by the appellant."
Indisputably, review applications filed by some promotee officers
thereagainst was also dismissed by this Court on 17.8.2006.
Inter alia, on the premise that the State has failed and/or
neglected to the time frame for revising the seniority list, a Contempt
Petition marked as Contempt Petition (C) No. 214 of 2006 was filed on or about
15.10.2006. Thereafter, a tentative seniority list was prepared on 15.12.2006.
A final seniority list was prepared on 4.4.2007 in terms whereof all the direct
recruits (appellants) were placed before the first respondent.
On or about 26.4.2007, the State Government forwarded a proposal
to the Union Public Service Commission (U.P.S.C.) to call a meeting of the
Review Selection Committee to review the select lists prepared for promotion to
I.A.S. from the P.C.S. for the years 1998-2006.
This Court by an order dated 20.8.2007 while dismissing the
contempt petition observed as under:
the dismissal of the contempt petition it is expected that the Union Public
Service Commission should hold the meeting pursuant to the direction of this
On or about 12.10.2007, the State Government wrote to the U.P.S.C.
that it had been decided to review the select lists from 1992-1993 onwards for
the purpose of appointment to the I.A.S. cadre. A second round of litigation
thereafter started as some promotees including the first respondent filed writ
petitions against the final seniority list of 2007 raising almost similar
grounds which had been taken in the review petitions filed before this Court.
An interim order was passed in the said writ petitions on 15.10.2007 directing
that the selection process would go on but the writ petitioners therein would
not be reverted till further orders.
in view of such order of stay, the direct recruits could not be promoted to IAS
U.P.S.C. reviewed the select list from 1992 to 2006. It was found
by the Committee that six officers were eligible for promotion under the new
seniority list and made recommendations to the same effect. Six officers who
were promoted on the basis of the incorrect seniority list, and subject to the
final outcome of the decision in Arvinder Singh Bains (supra), were required to
be reverted as either they had become over-aged or too junior.
No.1 was one of them. The respondent No.1, however, filed an application marked
as O.A. No. 185 of 2008 before the Central Administrative Tribunal at Chandigarh,
inter alia, praying for the following reliefs:
Summon the records of the case and after perusal of the same quash the
selection made of Respondent No.4 to 9 to the Indian Administrative Service by
conducting review DPC held on 25.2.2008 for the period 1992 to 2006, without
determining the vacancies, afresh as the applicant along with others was
promoted to the IAS from PCS on the basis of seniority list determined in 1993
and the applicant and others were appointed and are still holding the post of
Indian Administrative Service, with further direction to the officials
Respondent not to appoint the selected candidates from Sr. No.4 to 9, as IAS
against the posts against which the applicant and others are working.
the Respondents to grant the benefit of the Judgment of Hon'ble Supreme Court
of India in Arvinder Singh Bains' case only to the applicant therein, if it is
admissible to him, and not to the private respondents who never challenged the
seniority of the applicant settled in 1993 and 1994."
By an order dated 18.3.2008, the Central Administrative Tribunal,
Chandigarh while issuing notice directed that the promotions made to the I.A.S.
would be subject to the final outcome of the said O.A.
The first respondent filed a writ petition against the said order
before the High Court. The High Court by reason of an Order dated 25.3.2008
granted stay on the reversion of the first respondent although no such prayer
was made in the original application. It is the said order which is being
Before, however, adverting to the propriety and/or legality of the
said order dated 25.3.2008, we may notice that on an application filed by the
State Government for vacation of stay granted on 15.10.2007 in C.W.P.No. 6857
of 2007, the High Court, by its order dated 3.4.2008, modified its interim
order dated 15.10.2007 to the effect that the same would not affect the right
of six persons who have been found eligible to be promoted to the I.A.S. and
recommended by the U.P.S.C. on or about 25.2.2007.
no order of appointment has been issued to that effect.
Two direct recruits recommended for promotion to the I.A.S. have
also filed Special Leave Petition before this Court against the said interim
order dated 3.4.2008.
The stand of the Union of India in the matter appears to be that
the said order is an obstacle in the matter of implementation of the judgment
of this Court in Arvinder Singh Bains (supra) as the order of reversion has
We may also furthermore place on record that the applications were
filed in Writ Petition No. 4806-CAT of 2008 for vacation of the interim order
which appears to have been withdrawn in view of the Special Leave Petition
filed herein. We have, however, heretobefore noticed that one Special Leave
Petition was dismissed by this Court with which we are not concerned hereat.
The stand of the appellants as also the State of Punjab is that
the matter in regard to the interpretation of 1976 Rules as regards seniority
between direct recruits and promotees having been finally determined by this
Court in Arvinder Singh Bains (supra) wherein the relevant Rules have been
interpreted, the High Court could not have granted an order of stay.
Mr. P.S. Patwalia, learned Senior Counsel appearing on behalf of
the respondent No.1, on the other hand, would contend that the first respondent
being not a party to the litigation and he having been appointed in December
1984, the decision of this Court in Arvinder Singh Bains (supra) would not be
binding on him.
contended that as the relief has been granted only to the appellant therein and
keeping in view the fact that the seniority list dated 19.3.1993 having not
been challenged, the High Court could have granted an order of stay.
Court passed an order dated 22.10.2008 in the present appeals, which reads
is granted in all the SLPs.
of India and the Union Public Service Commission are parties before us.
Although the Union of India has filed counter affidavit, nobody has appeared on
Public Service Commission is represented by Ms.
learned counsel for the parties quite at length.
these appeals are preferred against the interim orders passed by the High Court
of Punjab & Haryana at Chandigarh, being orders dated 25.3.2008, 3.4.2008
and 10.4.2008 and having regard to the fact that a large number of contentions
have been raised before us, we are of the opinion that the operative portion of
the judgment may be pronounced here and now. Detailed reasons therefor,
however, would be assigned later on.
appeals are allowed, modifying the impugned orders of the High Court to the
portion of the impugned orders whereby and whereunder the High Court has stayed
the reversion of the writ petitioners, who are respondents in these appeals,
shall stand vacated. However, they shall be adjusted against any of the 12
vacancies which are stated to be existing and in respect of which steps are
being taken to send requisition to the Union of India for making appointment.
The writ petitioners - respondents will be entitled to continue against those
vacancies only till appointment against those vacancies notified by the Union
appellants before us must be appointed to the cadre of IAS in terms of the
seniority list dated 4th April, 2007.
above directions shall, however, be subject to the ultimate result of the writ
petitions which are pending before the High Court (2) We in exercise of our
jurisdiction under Article 142 of the Constitution of India, further direct the
State of Punjab to send the requisition for filling up all the above mentioned
12 vacancies in the cadre of IAS, to the Union of India and the Union Public
Service Commission, as expeditiously as possible and preferably within a period
of three weeks from today. Both Union of India and Union Public Service
Commission are hereby directed to consider the requisition sent by the State of
Punjab in respect of the aforementioned 12 vacancies as expeditiously as
possible and preferably within a period of 16 weeks from the date of
communication of the requisition.
would request the High Court to consider the desirability of disposing of the
pending writ petitions as expeditiously as possible, preferably within a period
of three weeks from today."
question as to whether the promotee officers who have filed original
applications before the Central Administrative Tribunal would be entitled to
obtain any relief awaits consideration.
outset, we may observe that the High court could not have passed an interim
order which had a serious civil consequence so far as the appellants are
concerned and that too without giving any opportunity of hearing to them. If
the contention raised before us that the original applicants did not pray for
stay of reversion is correct, in our opinion, the High Court ought not to have
passed the impugned order. It is one thing to say that judgment delivered by
this Court in Arvinder Singh Bains (supra) is not a judgment in rem but prima
facie this Court has interpreted the Rules, which would be a law declared in
terms of Article 141 of the Constitution of India. The High Court before
arriving at a finding that the first respondent would be entitled to be
promoted to the cadre of Indian Administrative Service, in our considered
opinion, should have bestowed serious consideration in regard to the
implementation of the said judgment and the effect thereof. It was for the said
purpose, the High Court should have assigned some reasons in support of its
order. We need not delve upon the said question in great detail. But it is
beyond any cavil of doubt that before passing an interim order, the courts
should not only consider prima facie case, balance of convenience, and
irreparable injury but also its effect on public interest also. The public
interest demands that the process should be continued. The Rules have been
interpreted by this Court in Arvinder Singh Bains (supra), and review petition
filed thereagainst had been dismissed. In the said review application,
contentions have been raised which are similar to the ones raised by the first
respondent in his original application. Furthermore, although this court
dismissed the contempt application by an order dated 20.8.2007 by making
certain observations, the same should have been given effect to. We are not
unmindful of the fact that in these matters not only the seniority list but
also the selection process has been under challenge. But, as noticed
hereinbefore, no interim relief qua reversion has been sought for.
Court in M. Gurudas vs. Rasaranjan [(2006) 8 SCC 367] opined:
While considering the question of granting an order of injunction one way or
the other, evidently, the court, apart from finding out a prima facie case,
would consider the question in regard to the balance of convenience of the
parties as also irreparable injury which might be suffered by the plaintiffs if
the prayer for injunction is to be refused. The contention of the plaintiffs
must be bona fide. The question sought to be tried must be a serious question
and not only a mere triable issue."
Tribunal refused to pass an interim order but observed that any action taken
would be subject to ultimate result of the original application. Thus, in a
situation of this nature, the High Court should have considered the question as
to whether the respondent No.1 had any prima facie case or is there any balance
of convenience in his favour. It is not a case where the dispute is between the
private parties. Appointment to the cadre of I.A.S. is a matter of public
interest. An interim order involving public interest in public law cases must
receive different considerations.
effect of the interim order vis-`-vis the clarificatory order passed by the
High Court in the earlier writ application resulted in a piquant situation in
the sense that whereas the appellants were entitled to be promoted to I.A.S.,
the Union of India in their counter affidavit raised the questions of
difficulties contending that unless the posts fall vacant, no appointment
therein could be made. It may be true that when an employee is reverted to a
lower post, he would suffer civil consequences but then it was necessary not only
in public interest, but also to give effect to the doctrine of comity and/or
amity. The appellants were entitled to be promoted as of right subject to the
result of writ petition. They could not be denied promotion by another interim
order passed in favour of the first respondent directing that they could not be
reverted as a result whereof the vacancy would not occur.
Power (P) Ltd. [(2006) 1 SCC 540]}
Court in India Household and Healthcare Ltd. vs. LG Household and Healthcare Ltd
[(2007) 5 SCC 510] noticed:
This aspect of the matter has been considered in A Treatise on the Law
Governing Injunctions by Spelling and Lewis wherein it is stated:
8. Conflict and loss of jurisdiction.--Where a court having general jurisdiction
and having acquired jurisdiction of the subject-matter has issued an
injunction, a court of concurrent jurisdiction will usually refuse to interfere
by issuance of a second injunction. There is no established rule of exclusion
which would deprive a court of jurisdiction to issue an injunction because of
the issuance of an injunction between the same parties appertaining to the same
subject-matter, but there is what may properly be termed a judicial comity on
the subject. And even where it is a case of one court having refused to grant
an injunction, while such refusal does not exclude another coordinate court or
Judge from jurisdiction, yet the granting of the injunction by a second Judge
may lead to complications and retaliatory action...."
court while exercising its judicial function would ordinarily not pass an order
which would make one of the parties to the lis violate a lawful order passed by
impugned interim order clearly violates the aforementioned rule.
however, need not consider the question as to whether the rosters are different
or whether the State and/or the Commission were correct in preparing the select
lists. We may, however, at this stage, only notice that this Court issued direction
to prepare a new seniority list. We need not also go into the questions raised
by the learned counsel appearing on behalf of the respondents that the
appellants were not entitled to any relief on the ground of latches or delay on
their part. We may, however, observe that this Court in Arvinder Singh Bains
(supra) did not issue any direction and/or any specific indication that the
said decision would be confined to the petitioners therein only.
were, however, informed at the bar that 12 vacancies existed. Only in that view
of the matter directions were issued to consider the cases of the respondents
for promotion to the cadre of I.A.S. against any of those vacancies if they are
found ultimately eligible there for. It is only with that in view, we had in
exercise of our jurisdiction under Article 142 of the Constitution of India
directed the Union of India to make requisition there for. We may furthermore
observe that we have not gone into some other questions which have been raised
at the bar as no observation made therein may prejudice one of the parties
above are the reasons in support of our order dated 22.10.2008.