Rasool Lone Vs. State of J & K & Ors  INSC 1225 (16 July 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURSIDICTION SPECIAL LEAVE PETITION
(CIVIL) NO. 14126 OF 2009 Ghulam Rasool Lone .... Petitioner Versus State of J
& K and another .... Respondents ORDER S.B. SINHA, J.
One Hamiddulah Dar was an Assistant Sub-Inspector of Police. He
was granted promotion to the post of Sub-Inspector illegally upon relaxing the
prescribed Rules in the year 1987. Seven persons said to be similarly situated
asked for similar treatment.
SWP No.519 of 1987 was filed by one of them, named Abdul Rashid
Rather, a Constable. It was allowed by a learned Single Judge of the High Court
by an order dated 24th September, 1998. A Letters Patent Appeal 2 filed there against
was dismissed by a Division Bench of the High Court by its order dated 30th
July, 1999. It is stated that a Special Leave Petition filed against the said
order was also dismissed by this Court.
Another writ petition was filed by four persons, namely - Maharaj
Krishan Bhatt, Mohammad Amin, Bansilal Bhatt and Mohammad Abbas Najar in the
year 1997, which was registered as SWP No.3735 of 1997, praying for their
promotion to the post of Sub-Inspector with effect from the date on which
Hamiddulah Dar, who was said to be junior to the petitioners, was promoted. A
learned Single Judge of the High Court allowed the said writ petition by an
order dated 30th April, 2001. On an intra court appeal having been preferred, a
Division Bench of the said Court by its order dated 11th October, 2002 allowed
the same. A Special Leave Petition was filed there against by Maharaj Krishan
Bhatt and Bansi Lal Bhatt before this Court. Special leave having granted, the
matter was registered as Civil Appeal Nos. 8481-8482 of 2003. A Division Bench
of this Court allowed the said appeal by an order dated 1st August, 2008 which
has since been reported in 2008 (9) SCC 24.
Petitioner filed a writ petition which was registered as SWP No.
742 of 2000. It was allowed by a learned Single Judge of the High Court by his
order dated 4th December, 2003. Letters Patent Appeal filed by the State of 3
Jammu and Kashmir, however, has been allowed by reason of the impugned judgment
and order dated 19th March, 2009.
Petitioner is, thus, before us.
Mr. D.K. Garg, learned counsel appearing on behalf of the
petitioner would contend that the Division Bench of the High Court committed a
serious error in passing the impugned judgment in so far as it failed to take
into consideration that delay or latches alone could be a ground for
discriminating the petitioner vis-`-vis five others, who were similarly
situated. Our attention was drawn to the fact that pursuant to the judgment of
the Jammu and Kashmir High Court, the petitioner's name was recommended by the
Executive Branch of the State. Even a draft order of promotion was placed
before Hon'ble the Chief Minister. However, the said relief had not been
granted despite an appropriate representation having been filed by the petitioner.
Later the Letters Patent Appeal was filed by the State, which as noticed
earlier, has been allowed by the impugned judgment.
Abdul Rashid Rather, who was said to be junior to the petitioner,
as we have noticed heretobefore, had filed writ petition in the year 1987. It
was decided on 24th September, 1998.
admittedly filed the writ petition in the year 2000 after the writ petition
filed by Abdul Rashid Rather attained finality, as the order 4 passed by the
Division Bench of the High Court was given effect to on 16th December, 1999.
It is on
the aforementioned premise the effect of the impugned judgment may have to be
The Division Bench by its impugned judgment framed the following
question:- "Was the petitioner-respondent sitting on the fence and sought
to obtain success on the basis of success of another? It was found that he did.
Division Bench opined :- "He having not expressed grievance as regard
special treatment meted out to Hamiddulah Dar for a long period of time, in
law, cannot be permitted to leap forward for the first time, on the basis of
success of another who had been pursuing his grievance right from the date when
the subject unwarranted favour was shown to Hamidullah Dar.
considering the case of Mahaaraj Krishan Bhatt and others the Hon'ble Supreme
Court had no occasion to go into the question whether by reason of success of
Abdul Rashid Rather, who had been pursuing his claim to be treated in the same
fashion as that of Hamiddulah Dar since 1987, anyone else, who is also
similarly situated to that of Abdul Rashid Rather, despite not expressing any
grievance since 1987 about 5 dissimilar treatment, can come up to the Court and
seek similar relief as has been granted to Abdul Rashid Rather.
being the substantial question of law, the judgment and order rendered by the
Hon'ble Supreme Court in the case of Maharaj Krishan and others is of no help
to the petitioner-respondent."
Was the Division Bench wrong in its approach so as to warrant interference
therewith by this Court in exercise of its extra ordinary jurisdiction under
Article 136 of the Constitution of India, is the question.
It is not disputed before us that Hamiddulah Dar was illegally
promoted. Recruitment Rules required to be followed for promotion to the post
of Sub-Inspector were relaxed.
particulars had been placed before the High Court either in the present case as
also in the case of Maharaj Krishan with regard to the power of the State
and/or competent authority to relax the Rules. In absence of such details, we
have no other option but to proceed on the basis that the promotion of said
Hamidullah Dar was illegal.
There cannot be any doubt whatsoever that keeping in view the
equal protection clause contained in Articles 14 of the Constitution of India
as also Article 16 thereof, all the employees should be treated equally.
Equality clause, however, must be enforced in legality and not illegality.
There cannot furthermore be any doubt that Article 14 is a
positive concept. The Constitution does not envisage enforcement of the
equality clause where a person has got an undue benefit by reason of an illegal
Devi v. State of Rajasthan [(2009) 2 SCC 589], this Court held:
14 of the Constitution of India has a positive concept. Equality, it is trite,
cannot be claimed in illegality. Even otherwise the writ petition as also the
review petition have rightly not been entertained on the ground of delay and
laches on the part of the appellant."
The Court in a given case may be inclined to pass similar order as
has been done in the earlier case on the basis of equality or otherwise.
The discretionary jurisdiction under Article 226 of the
Constitution may, however, be denied on the ground of delay and latches. It is
now well settled that who claims equity must enforce his claim within a
said proposition, amongst others, we may notice a decision of a three Judge
Bench of this Court in Govt. of W.B. v. Tarun K. Roy, [(2004) 1 SCC 347],
wherein it has been opined :- "34. The respondents furthermore are not
even entitled to any relief on the ground of gross delay 7 and laches on their
part in filing the writ petition.
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 Debdas Kumar. 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."
supplied) The question yet again came up for consideration before this Court in
New Delhi Municipal Council v. Pan Singh, [ (2007) 9 SCC 278 ], wherein it has
been observed :- "16. There is another aspect of the matter which cannot
be lost sight of. The respondents herein filed a writ petition after 17 years.
They did not agitate their grievances for a long time. They, as noticed herein,
did not claim parity with the 17 workmen at the earliest possible opportunity.
They did not implead themselves as parties even in the reference made by the
State before the Industrial Tribunal. It is not their case that after 1982,
those employees who were employed or who were recruited after the cut-off date
have been granted the said scale of pay. After such a long time, therefore, the
writ petitions could not have been entertained even if they are similarly
situated. It is trite that the discretionary jurisdiction may not be exercised
in favour of those who approach the court after a long time. Delay and laches
are 8 relevant factors for exercise of equitable jurisdiction.
is mine) [See also Virender Chaudhary v. Bharat Petroleum Corpn., [ (2009) 1
SCC 297 ].
principle was reiterated in S.S. Balu v. State of Kerala [(2009) 2 SCC 479] in
the following terms:- "17. It is also well-settled principle of law that
"delay defeats equity". The Government Order was issued on 15-1-2002.
The appellants did not file any writ application questioning the legality and
validity thereof. Only after the writ petitions filed by others were allowed and
the State of Kerala preferred an appeal thereagainst, they impleaded themselves
as party-respondents. It is now a trite law that where the writ petitioner
approaches the High Court after a long delay, reliefs prayed for may be denied
to them on the ground of delay and laches irrespective of the fact that they
are similarly situated to the other candidates who obtain the benefit of the
thus, not possible for us to issue any direction to the State of Kerala or the
Commission to appoint the appellants at this stage."
Mr. Garg would, however, contend that the Division Bench of this
Court in Maharaj Krishan Bhatt (supra) has categorically held that the Division
Bench should not have interfered with the order of the learned Single Judge as
the latter merely followed the earlier judgment. On that premise, it is urged
that in this case also the Division Bench had no jurisdiction to entertain the
Letters Patent Appeal.
It is one thing to say that the Letters Patent Appeal was not maintainable
but it is another thing to say that although the same was maintainable but the
Division Bench should not have exercised its jurisdiction.
It is beyond any cavil of doubt that the remedy under Article 226
of the Constitution of India is a discretionary one. For sufficient or cogent
reasons a court may in a given case refuse to exercise its jurisdiction ; delay
and latches being one of them.
While considering the question of delay and latches on the part of
the petitioner, the court must also consider the effect thereof. Promotion of
Hamidullah Dar was effected in the year 1987. Abdul Rashid Rather filed his
writ petition immediately after the promotion was granted. He, therefore, was
not guilty of any delay in ventilating his grievances. It will bear repetition
to state that the petitioner waited till Abdul Rashid Rather was in fact
promoted. He did not consider it necessary either to join him or to file a
separate writ petition immediately thereafter, although even according to him,
Abdul Rashid Rather was junior to him.
Division Bench, therefore, in our opinion rightly opined that the petitioner
was sitting on the fence.
If at this late juncture the petitioner is directed to be promoted
to the post of Sub-Inspector even above Abdul Rashid Rather, the seniority of
those who had been promoted in the meantime or have been directly recruited
would be affected. The State would also have to pay the back wages to him which
would be a drainage of public funds. Whereas an employee cannot be denied his
promotion in terms of the Rules, the same cannot be granted out of the way as a
result whereof the rights of third parties are affected. The aspect of public
interest as also the general administration must, therefore, be kept in mind while
granting equitable relief.
We understand that there would be a heart burning in so far as the
petitioner is concerned, but then he is to thank himself therefor. If those
five persons, who were seniors to Hamiddulah Dar filed writ petitions immediately,
the High Court might have directed cancellation of his illegal promotion. This
Court in Maharaj Krishan Bhatt (supra) did not take into consideration all
these aspects of the matter and the binding decision of a three Judge Bench of
this Court in Govt. of W.B. v. Tarun K. Roy (supra).
Division Bench of the High Court, therefore, in our opinion was right in
opining that it was not necessary for it to follow Maharaj Krishan Bhatt
For the reasons aforementioned, we are of the opinion that the
judgment of the Division Bench cannot be said either to be arbitrary or
illegal. This Special Leave Petition is dismissed summarily.
..................................J. [ S.B. SINHA ]