State of Bihar & Ors Vs. Kameshwar
Prasad Singh & ANR [2000] INSC 272 (27 April 2000)
Special Leave Petition (civil) 12013 of 1998 Special
Leave Petition (civil) 16740 of 1998
S. Saghir Ahmad, & R. P. Sethi.
SETHI, J.
L.I.T.J
The respondents Brij Bihari Prasad Singh and
Kameshwar Prasad Singh and one Ramjas Singh were directly recruited as
Sub-Inspectors of Police on 2.1.1966. Brij Bihari Prasad Singh was promoted as
Inspector of Police on officiating basis on 16.7.1971 with a clear stipulation
that he will not get seniority in the rank of Inspector till selected by the
IG's Board. Consequently he actually joined on 22.7.1971.
Ramjas Singh was promoted as Inspector on
8.7.1972 in terms of Rule 616(c) of the Bihar Police Manual Rules (hereinafter
referred to as "the Rules") as he had been awarded gallantry award.
On 2.7.1978 Brij Bihari Prasad Singh was promoted as Inspector after selection
under Rule 649 and was confirmed as such on 1.4.1982. The aforesaid respondent
filed Writ petition No.6873 of 1990 in the High Court of Patna praying for
direction to the respondents therein to consider his case for promotion to the
post of Dy.SP treating his date of promotion to the post of Inspector of Police
as 27.7.1971, the date when he joined as Inspector of Police consequent upon
his initial promotion on officiating basis. The aforesaid writ petition was
disposed of by the High Court on 30th November, 1990 directing Brij Bihari
Prasad Singh to file representation and the petitioner-State to dispose of the
same within three months. On 14.5.1991 the Director General of Police directed
seniority of the aforesaid respondent in the rank of Inspector to be reckoned
with effect from 27.7.1971. However, on 13.4.1993 the DGP modified the
aforesaid order and directed confirmation of Brij Bihari Prasad Singh in the
rank of Inspector with effect from 2.7.1978 when he was substantively promoted
under Rule 649 of the Rules and placed him at Sl.No.86 Ka in the seniority list
of Inspectors. Feeling aggrieved, the aforesaid respondent filed Writ Petition
No.4108 of 1991 in the High Court which was allowed on 8.4.1994 with a
direction of reckoning his seniority as Inspector with effect from 27.7.1971
and grant of all consequential benefits to him. As the directions were not
complied with, contempt petition being MGC No.1360 of 1994 was filed in the
High Court and according to the petitioners the order of the High Court passed
in Writ Petition No.4108/91 was implemented allegedly under the threat of
contempt.
Ramjas Singh who was promoted as Inspector
out of turn on the basis of gallantry award in terms of Rule 616(c) of the
Rules had been promoted as Dy.SP with effect from 25th October, 1975. Alleging
that the aforesaid Ramjas Singh was junior to him, the respondent Brij Bihari
Prasad Singh filed writ petition No.697 of 1995 claiming promotion with effect
from the date when Ramjas Singh was promoted as Dy.SP. The aforesaid writ
petition was allowed on 26th July, 1995 directing promotion of Brij Bihari
Prasad Singh as Dy.SP with effect from 25th October, 1975. The Letters Patent
Appeal filed against the aforesaid judgment was dismissed by a Division Bench
of the High Court on 22nd March, 1996 vide the judgment impugned in the SLP
12013/98.
There being delay of 679 days in filing the
SLP, the appellants have also filed Application being IA No.1/98 seeking
condonation of delay in filing the SLP. It is submitted in the application that
the order of the Division Bench of the High Court could not be challenged
earlier allegedly due to the fear of contempt and various coercive orders
passed by the High Court against the State and its officials. It is contended
that as consequent upon the judgment of the High Court in Brij Bihari Prasad
Singh's case, a number of writ petitions have been filed in the High Court of
Patna for the grant of similar benefits, the State had no option left except to
approach this Court. It is contended that the judgment impugned has been passed
in violation of the provisions of law and the rules applicable and it has
become a havoc in the Department and Government is facing great trouble in
compliance of such type of directions for conferment of uncalled for benefits.
It is submitted that if the impugned judgment is not rectified or set aside,
the interests of more than 250 officers would be adversely affected. By
promoting Brij Bihari Prasad Singh a number of senior officers are stated to
have already superseded for no fault of theirs. If promotions are given in
terms of the directions of the High Court, the same is likely to upset the
entire cadre of Dy.SP of Police as well as Inspectors of Police in the State of
Bihar. If not stopped, the consequence would be uncalled for litigation with
heavy financial burden upon the State.
Kameshwar Prasad Singh respondent in the SLP
10653 of 1998 filed a writ petition in the High Court praying for issuance of
directions to the appellants to assign him seniority in the rank of Inspector
of Police over Brij Bihari Prasad Singh and thereafter provide him with all
consequential benefits. He claimed to have been appointed along with Brij
Bihari Prasad Singh as Sub Inspector of Police in January, 1966. His name was
shown above the name of Brij Bihari Prasad Singh in the cadre of Sub
Inspectors.
Both of them passed the PTC training
together. He claimed that his case for substantive appointment of Sub Inspector
was placed before the Director General of Police along with the cases of Brij
Bihari Prasad Singh and others. The Selection Board which held its meetings on
17th and 18th August, 1978 is stated to have declared both the respondents as
fit for officiating promotion on the higher post of Inspector of Police. On the
basis of the recommendations made by the Board a Gazette Notification is stated
to have been issued on 6th October, 1978 by which both the aforesaid
respondents were promoted on officiating basis to the higher post of Inspector
of Police. However, despite notification Kameshwar Prasad Singh could not join
the post of Inspector till 3rd March, 1981. Both the aforesaid respondents were
stated to have been confirmed with effect from 1.4.1982. In the seniority list
published on 18th May, 1988, the said Kameshwar Prasad Singh was shown senior
to Brij Bihari Prasad Singh by being placed at Sl.No.224 and Brij Bihari Prasad
Singh at Sl.No.225. He then referred to the filing of the writ petition by
respondent Brij Bihari Prasad Singh to which he was not made a party. He
claimed that after the promotion of Brij Bihari Prasad Singh he could not be denied
the relief claimed. Allowing the writ petition on 3rd July, 1997, the learned
Single Judge of the High Court directed the petitioners herein to treat the
said respondent as senior to Brij Bihari Prasad Singh as Inspector of Police
and provide him with all consequential benefits including promotion to the next
higher post, if he otherwise was found fit. It was, however, made clear that
the judgment of the Court would not affect the interest of Brij Bihari Prasad
Singh in the matter of promotion to the post of Dy.SP and SP which was noticed
to have been already granted to him. LPA filed against the judgment of the
learned Single Judge was dismissed on the ground of unexplained delay of 174
days, vide the judgment impugned in this petition.
Indra Nand Mishra and others who were
intervenors in the High Court filed an application with the submission that as
they were likely to be adversely affected by the impugned judgment passed by
the learned Single Judge and confirmed by the appellate Bench, their interests
be protected and the court should ensure by giving the benefit to the writ
petitioners that the interest of the intervenors would not be adversely
affected. Their application was dismissed holding:
"However, those persons are neither
party in the present Letters Patent Appeal nor they were party in the writ
applications referred to above. Even if they have bonafide grievance, the same
cannot be appreciated and considered in this Letters Patent Appeal." They
have also sought the condonation of delay mainly on the ground of not being
aware of the judgment passed by the High Court which ultimately and eventually
adversely affected their interests.
We have heard the arguments of the learned
counsel appearing for the parties and have perused the records Appearing for
the petitioners Mr.P.P. Rao, Senior Advocate has submitted that under the
circumstances of the case and for the reasons detailed in the applications
sufficient grounds have been made out for condoning the delay in filing the
petitions. He has further submitted that the judgments impugned are contrary to
law and totally in violation of the rules applicable in the case and if not set
right, are likely to adversely affect a number of other officials who are
admittedly senior than the respondents herein. According to the learned counsel
14 similar writ petitions and three contempt petitions are pending before the
High Court wherein all the petitioners have claimed similar relief as was given
to Brij Bihari Prasad Singh, on the ground of admittedly being senior to him.
Besides 15 representations for similar reliefs are stated to be pending before
the Government. Brij Bihari Prasad Singh is stated to have superseded 168
Inspectors by getting an order to give him seniority with effect from
27.7.1971. In the cadre of Dy.SP Brij Bihari Prasad Singh is stated to have
superseded 407 officers by virtue of the judgment of the High Court in the
second round claiming promotion as Dy.SP with effect from 25th October, 1975,
when Ramjas Singh was promoted. It is contended that the High Court has
committed an error of law by directing the conferment of benefits upon the
respondent on the alleged ground of equality. No court can grant relief to a
citizen by applying the concept of negative equality. Only because the
Government had committed a mistake by giving Brij Bihari Prasad Singh seniority
with effect from 27.7.1971 as Inspector and under the threat of contempt,
promotion with effect from 25th October, 1975, the others who claimed to be
similarly situated cannot force the Government to commit the same mistake and
upon denial approach the High Court for issuance of appropriate directions.
Mr.P.S. Misra, Learned Senior Advocate
appearing for the respondents has, however, submitted that as the State slept
over its rights and felicitated the judgment in Brij Bihari Prasad Singh's case
become final, they are now not entitled to seek the condonation of unexplained
delay. It is further submitted that Brij Bihari Prasad Singh and Ramjas Singh
have already been conferred the benefits of the judgment and consequently
promoted. By setting aside the judgments at this belated stage would not only
adversely affect their interests but subject the aforesaid respondents to
humiliation of demotion besides suffering of the monetary loss. The learned
senior counsel has even denied the claim of Mr.Rao regarding supersession of
168 Inspectors and 407 Dy.SPs. It is contended that in view of the settled law
the present petitions are liable to be dismissed.
Mr.Vikas Singh and other advocates who
appeared for the intervenors submitted that if the impugned judgments are not
set aside, their clients along with others are likely to suffer for no fault of
theirs. It is contended that in the absence of parties likely to be affected
consequent upon the prayers made were necessary parties and in view of the fact
that they have not been impleaded as party-respondents, the impugned judgments
cannot adversely affect the interests of any senior officer.
Power to condone the delay in approaching the
court has been conferred upon the courts to enable them to do substantial
justice to parties by disposing of matters on merits. This Court in Collector,
Land Acquisition, Anantnag & Anr. vs. Mst.Katiji & Ors.[1987 (2) SCR 387]
held that the expression 'sufficient cause' employed by the legislature in the
Limitation Act is adequately elastic to enable the courts to apply the law in a
meaningful manner which subserves the ends of justice - that being the life
purpose for the existence of the institution of courts. It was further observed
that a liberal approach is adopted on principle as it is realised that:
"1. Ordinarily a litigant does not stand
to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very threshold and cause of justice
being defeated. As against this when delay is condoned the highest that can
happen is that a cause would be decided on merits after hearing the parties.
3. 'Every day's delay must be explained' does
not mean that a pedantic approach should be made. Why not every hour's delay,
every second's delay? The doctrine must be applied in a rational common sense
pragmatic manner.
4. When substantial justice and technical
considerations are pitted against each other, cause of substantial justice
deserves to be preferred for the other side cannot claim to have vested right
in injustice being done because of a non- deliberate delay.
5. There is no presumption that delay is
occasioned deliberately, or on account of culpable negligence, or on account of
mala fides. A litigant does not stand to benefit by resorting to delay. In fact
he runs a serious risk.
6. It must be grasped that judiciary is
respected not on account of its power to legalize injustice on technical
grounds but because it is capable of removing injustice and is expected to do
so." After referring to the various judgments reported in New India
Insurance Co. Ltd.v. Shanti Misra[1975 (2) SCC 840], Brij Inder Singh v. Kanshi
Ram [AIR 1917 PC 156], Shakuntala Devi Jain v. Kuntal Kumari [1969 (1) SCR
1006], Concord of India Insurance Co. Ltd. v. Nirmala Devi [1979 (4) SCC 365],
Lala Mata Din v. A. Narayanan [1969 (2) SCC 770], State of Kerala v. E.K.
Kuriyipe [1981 Supp SCC 72], Milavi Devi v. Dina Nath[1982 (3) SCC 366 O.p.
Kathpalia v. Lakhmir Singh [1984 (4) SCC 66], Collector, Land Acquisitionv.
Katiji [1987 (2) SCC 107], Prabha v. Ram Parkash Kalra [1987 Supp. SCC 339],
G.Ramegowda, Major v.Spl.Land Acquisition Officer [1988 (2) SCC 142], Scheduled
Caste Coop. Land Owning Society Ltd. v. Union of India[1991 (1) SCC 174], Binod
Bihar Singh v. Union of India [1993 (1) SCC 572], Shakambari & Co. v. Union
of India[1993 Supp (1) SCC 487], Ram Kishan v. U.P. SRTC[1994 Supp (2) SCC 507]
and Warlu v. Gangotribai [1995 Supp (1) SCC 37; this Court in State of Haryana
v. Chandra Mani & Ors. [1996 (3) SCC 132] held:
"It is notorious and common knowledge
that delay in more than 60 per cent of the cases filed in this Court - be it by
private party or the State - are barred by limitation and this Court generally
adopts liberal approach in condonation of delay finding somewhat sufficient
cause to decide the appeal on merits. It is equally common knowledge that
litigants including the State are accorded the same treatment and the law is
administered in an even-handed manner. When the State is an applicant, praying
for condonation of delay, it is common knowledge that on account of impersonal
machinery and the inherited bureaucratic methodology imbued with the
note-making, file pushing, and passing-on-the buck ethos, delay on the part of
the State is less difficult to understand though more difficult to approve, but
the State represents collective cause of the community. It is axiomatic that
decisions are taken by officers/agencies proverbially at slow pace and
encumbered process of pushing the files from table to table and keeping it on
table for considerable time causing delay - intentional or otherwise - is a
routine. Considerable delay of procedural red-tape in the process of their
making decision is a common feature. Therefore, certain amount of altitude is
not impermissible. If the appeals brought by the State are lost for such
default no person is individually affected but what in the ultimate analysis
suffers, is public interest. The expression 'sufficient cause' should,
therefore, be considered with pragmatism in justice-oriented process approach
rather than the technical detention of sufficient case for explaining every
day's delay. The factors which are peculiar to and characteristic of the
functioning of pragmatic approach in justice oriented process. The court should
decide the matters on merits unless the case is hopelessly without merit. No
separate standards to determine the cause laid by the State vis-à-vis private
litigant could be laid to prove strict standards of sufficient cause. The
Government at appropriate level should constitute legal cells to examine the
cases whether any legal principles are involved for decision by the courts or
whether cases require adjustment and should authorise the officers to take a
decision to give appropriate permission for settlement. In the event of
decision to file the appeal needed prompt action should be pursued by the
officer responsible to file the appeal and he should be made personally
responsible for lapses, if any. Equally, the State cannot be put on the same
footing as an individual.
The individual would always be quick in
taking the decision whether he would pursue the remedy by way of an appeal or
application since he is a person legally injured while State is an impersonal
machinery working through its officers or servants." To the same effect is
the judgment of this Court in Special Tehsildar, Land Acquisition, Kerala v.
K.V.Ayisumma [1996 (10) SCC 634].
In Nand Kishore v. State of Punjab [1995 (6)
SCC 614] this Court under the peculiar circumstances of the case condoned the
delay in approaching this Court of about 31. In N. Balakrishnan v.
M.Krishnamurthy [1998 (7) SCC 123] this Court held that the purpose of
Limitation Act was not to destroy the rights. It is founded on public policy
fixing a life span for the legal remedy for the general welfare. The primary function
of a Court is to adjudicate disputes between the parties and to advance
substantial justice. The time limit fixed for approaching the court in
different situations is not because on the expiry of such time a bad cause
would transform into a good cause. The object of providing legal remedy is to
repair the damage caused by reason of legal injury. If the explanation given
does not smack malafides or is not shown to have been put forth as a part of
dilatory strategy, the court must show utmost consideration to the suitor. In
this context it was observed:
"It is axiomatic that condonation of
delay is a matter of discretion of the court. Section 5 of the Limitation Act
does not say that such discretion can be exercised only if the delay is within
a certain limit. Length of delay is no matter, acceptability of the explanation
is the only criterion. Sometimes delay of the shortest range may be
uncondonable due to a want of acceptable explanation whereas in certain other
cases, delay of a very long range can be condoned as the explanation thereof is
satisfactory. Once the court accepts the explanation as sufficient, it is the
result of positive exercise of discretion and normally the superior court
should not disturb such finding, much less in revisional jurisdiction, unless
the exercise of discretion was on wholly untenable grounds or arbitrary or
perverse.
But it is a different matter when the first
court refuses to condone the delay. In such cases, the superior court would be
free to consider the cause shown for the delay afresh and it is open to such
superior court to come to its own finding even untrammelled by the conclusion
of the lower court." Looking into the facts and circumstances of the case,
as noticed earlier and with the object of doing substantial justice to all the
parties concerned, we are of the opinion that sufficient cause has been made
out by the petitioners which has persuaded us to condone the delay in filing
the petitions. Dismissing the appeals on technical grounds of limitation would
not, in any way, advance the interests of justice but admittedly, result in
failure of justice as the impugned judgments are likely to affect not only the
parties before us, but hundreds of other persons who are stated to be senior
than the respondents. The technicalities of law cannot prevent us from doing
substantial justice and undoing the illegalities perpetuated on the basis of
the impugned judgments. However, while deciding the petitions, the reliefs in
the case can appropriately be moulded which may not amount to unsettle the
settled rights of the parties on the basis of judicial pronouncements made by
the courts regarding which the State is shown to have been careless and negligent.
It is paramount consideration of this Court to safeguard the interests of all
the litigants and persons serving the Police Department of the State of Bihar
by ensuring the security of the tenure and non disturbance of accrual of rights
upon them under the prevalent law and the rules made in that behalf.
Accordingly delay in filing the petitions is condoned.
Leave granted.
The facts as noticed earlier are not
seriously disputed.
The respondent Brij Bihari Prasad Singh had
filed Writ Petition No.1556/90 praying therein that he be given the same
benefit as was given to the writ petitioners in Writ Petition No.563 of 1985.
He contended that similar benefits had been conferred upon many police officers
and he had allegedly been discriminated. The writ petition was dismissed as
withdrawn on 31st July, 1990 with the observation that "however, this
shall not prejudice the petitioners in pursuing a remedy, if any, available to
him or pursuing his representation which we are informed is pending with the State".
As his representation dated 4.6.1988 had not been considered, Brij Bihari
Prasad Singh filed writ petition No.6873 of 1990 in which he prayed:
"Under the above facts and circumstances
it is, therefore, prayed that your lordships be graciously pleased to admit
this application issue rule NISI and after both parties and there show causes
if any allow this application by issuing a writ of directing the respondents to
give promotion and other consequential benefits to the petitioner from the post
of Inspector of Police to the post of Deputy Superintendent of Police from the
date the petitioner is found in legal entitle considering the case for
promotion to the post of Deputy Superintendent of Police by treating as
confirmed Inspector of Police with effect from 27.7.71 i.e. the date of
continuous officiation in the rank of Inspector of Police in the event of
judgments and order passed by this Hon'ble Court relying on judgment of the
Supreme Court contained in Annexure 1, 2 and 3 of this writ application or pass
such other order or orders as to your lordships may be pleased fit and
proper." As the Director General modified his order dated 14th May, 1991
vide his subsequent order dated 13.4.1993, Brij Bihari Prasad Singh filed Writ
Petition No.4108 of 1994 wherein he alleged that his seniority had not been
fixed correctly in the rank of Inspectors. A learned Single Judge of the High
Court vide his interim order directed appellants herein to issue a regular
order of promotion and if so advised to determine the seniority of the writ
petitioners in the cadre of Dy.SP of Police. It examined the legality of the
order of the Director General of Police dated 13.4.1993 and held:
"The petitioner's seniority once
determined in the rank of Inspector with effect from 27.7.1971 cannot be
legally altered without notice nor is any justification for the alteration
pointed out by the learned State counsel.
Therefore, his seniority in the rank of
Inspector has to be reckoned with effect from 27.7.1971. The date of
confirmation, in these circumstances, would, therefore, not to relevant for
determining the seniority of the petitioner in the rank Inspector, and is
necessary, his confirmation on the post of Inspector would have to as made
afresh treating the petitioner to have been placed on probation in the rank of
Inspector from 27.7.1971. Further consequential revisions, if necessary, shall
also be made in the gradation list of the Deputy Superintendent of Police where
the petitioner has been placed at Serial Number 399." The impugned order was
quashed and a direction issued to the appellant to reckon the seniority of the
writ petitioners in the rank of Inspectors with effect from 27.7.1971 with all
consequential benefits as a result of revision of his seniority in the rank of
Inspector as well as that of Dy.SP of Police. Admittedly, this order was not
appealed against and ultimately implemented by the authorities of the
appellant- State. By order dated 1st October, 1994 the respondent Brij Bihari
Prasad Singh was held entitled for promotion to the post of Dy.SP with effect
from 11th July, 1981 and not with effect from 25th October, 1975. He again
filed writ petition No.697 of 1995 submitting therein that having been
confirmed to the lower post of Inspector of Police from 1st March, 1975 his seniority
should be counted from the date of confirmation i.e. 25th October, 1975. It was
noticed that Ramjas Singh who was allegedly junior to him had been promoted to
the post of Inspector with effect from 8th July, 1972. Brij Bihari Prasad Singh
claimed to be senior to said Ramjas Singh on the ground of having been promoted
as Inspector on officiating basis on 27.7.1971. The learned Single Judge held:
"Having heard the parties, my considered
view is that the impugned order dated 1st October, 1994 is completely illegal.
The same is against the order and direction of this Court dt.8th April, 1994,
passed in CWJC No.4108/91, wherein this court categorically held and directed
the respondents to provide the petitioner with the seniority in the rank of
Inspector of Police with effect from 27th July, 1971. By the impugned order, as
contained in annexure-12, the respondents cannot superseded and/or alter the
aforesaid finding of this Court, in fact, Annexure-12 is contemptions.
Apart from the aforesaid fact, numerous
decisions, including the decision given by the Supreme Court, as reported in
AIR 1977 SC 2051, it has been held that the seniority of a person cannot be
dependent on confirmation, if confirmation itself is fortuitous in nature. In
the present case I have taken into note that confirmation of the petitioner and
Sh.Ramjas Singh to the post of Inspector of Police itself was fortuitous in
nature, the same having not been made on the assessment of merit. Such being
the position, the impugned order dated 1st October, 1994 cannot be sustained in
the eye of law." The order dated 1st October, 1994 in so far as it related
to the writ petitioner was set aside with a direction to the authorities of the
appellant-State to consider the case of the writ petitioner for promotion to
the post of Dy.SP with effect from 25th October, 1975 i.e. the date when his
alleged junior Shri Ramjas Singh was promoted. It was further directed that in
case the writ petitioner was found fit for promotion with effect from 25th
October, 1975 he would shift back the date of promotion to the post of Dy.SP
from 11th July, 1971 to 25th October, 1971. The appellants were further
directed to provide all consequential benefits to the petitioners.
Rule 649 deals with the promotion of Sub
Inspectors to Inspectors and Reserve Sub-Inspectors to Reserve Inspections and
provides:
"649. Inspectors and Reserve
Inspectors-- (a) The promotion of Sub-Inspectors to Inspectors, and Reserve
Sub-Inspectors to Reserve Inspectors will be made by the Inspector-General on
the advice of the Inspector General's Selection Board [Appendix 72(1)] (For
period of probation, See Rule 668).
(b) In July the Deputy Inspector-General will
call for nominations for promotion to reach him on the date fixed.
The form of nomination and the list of
enclosures are given in P.M. Form No.102.
(c) At least 14 days before nominations are
sent to the Deputy Inspector General the names of the nominees shall be
published by the nominating authority in district orders so that those who are
not nominated may have an opportunity of representing their cases before the
nominations are actually submitted. Officers, having such representation to
make, should be given interviews and their cases examined with them.
In case their representations are rejected,
those who have been superseded may file representation before Deputy Inspector
General. Such representation shall be submitted within 14 days of receipt of
information and this shall be forwarded soon to Deputy Inspector General, so
that additional nominations may be sent on the orders of Deputy Inspector
General.
In forwarding the nominations a certificate
must be given of the dates on which the lists were published and intimations
sent to those not nominated. In selecting Sub-Inspectors and Reserve Sub Inspectors
for promotion, preference should be given to those who have received special
commendation for integrity of character and good defective work.
(d) The Range Selection Board [Appendix
72(3)] shall scrutinize the district nominations and shall select from among
them in order of merit those whose nominations are to be sent before the
Inspector-General's Selection Board [Appendix 72(1)] on a date to be fixed by
the Inspector- General.
(e) The Inspector-General's Selection Board
[Appendix 72(1)] shall scrutinize the nominations of the Range Selection Board
and compile a list of selections which should ordinarily be in order of
seniority for promotion as vacancies occur. If an officer is placed higher in
the list than his seniority warrants a full note giving reason shall be
recorded. This list shall be of as many Sub-Inspectors as there are vacancies
plus few anticipatory vacancies depending on averages of last few years.
Promotions by the Inspector-General under clause (a) shall be confined to this
list but if any one does not get appointed from the list, his case shall be
reviewed again at the time of preparation of the next year's list and if found
fit, he shall be placed above the selected nominees of that year." The
respondent Brij Bihari Prasad Singh is stated to have been promoted as
Inspector in terms of the said Rule on 2nd July, 1978. Rule 660(c) deals with
the out of turn promotions and reads: "Selection Boards may recommend out
of turn promotion of officers with outstanding records of service and competent
authorities may order such promotion in deserving cases as they deem fit and
proper with the approval of next higher authority.
Officers so promoted should be placed below
the officers of the approved existing list of respective rank prepared by
Selection Boards and be confirmed against substantive vacancies as and when
vacancies arise in the order of the list.
Criteria taken together for determining
outstanding records of service will be as follows:
i) Award of President's Police Medal and
Indian Police Medal, for gallantry and distinguished service.
ii) Should not have been awarded any major
punishment till the date of consideration and order of out of turn promotion.
iii) Very good entries in permanent Character
Roll.
iv) Citation regarding high standard of
investigation, detection and control of crime and intelligence work.
v) Should have ability for shouldering higher
responsibilities consonant with the proposed promotion [See Home (Police)
Department Notification No.GSR 34, dated 12th May, 1976].
Ramjas Singh was promoted under the aforesaid
rule on 8.7.1972. The respondent Brij Bihari Prasad Singh prayed his promotion
to be made effective from 27th July, 1971 when he jointed as Inspector
consequent upon his promotion on officiating basis. The order of his promotion
read as:
"Following Sub-Inspectors are promoted
to officiate as Inspector w.e.f. the date they join their place of posting
noted against each. They will not get the advantage of the previous contained
in GOM VII/1966 towards their seniority in the rank of Inspector till they are
finally selected by I.G.'s Board.
Sri Bijay Kumar Singh - P.S. Motihari as
usual he will function as Cr.O for Sadar Sub-division....." This Court in
State of West Bengal & Ors. v. Aghore Nath Dey and Ors., etc. [1993 (2) SCR
919] held that to enable seniority to be counted from the date of initial
appointment and not according to the date of promotion, the incumbent of the
post has to be initially appointed "according to the rules".
Where the initial appointment is only adhoc
and not according to the rules and made as a stop gap arrangements, the
officiation on such post cannot be taken into account for considering the
seniority. In that case the Court relied upon the judgment of the Constitution
Bench in Direct Recruit Class II Engineering Officers Association and Ors.v.
State of Maharashtra & Ors. [1990 (2) SCR 900] wherein it was held that:
"(A) Once an incumbent is appointed to a
post according to rule, his seniority has to be counted from the date of his
appointment and not according to the date of his confirmation.
The corollary of the above rule is that where
the initial appointment is only adhoc and not according to rules and made as a
stop gap arrangement, the officiation in such post cannot be taken into account
for considering the seniority.
(B) If the initial appointment is not made by
following the procedure laid down by the rules but the appointee continues in
the post uninterruptedly till the regularisation of his service in accordance
with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than
one source, it is permissible to fix the ratio for recruitment from the
different sources, and if rules are framed in this regard they must ordinarily
be followed strictly.
(D) If it becomes impossible to adhere to the
existing quota rule, it should be substituted by an appropriate rule to meet
the needs of the situation. In case, however, the quota rule is not followed
continuously for a number of years because it was impossible to do so the
inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and
the appointments are made from one source in excess of the quota, but are made
after following the procedure prescribed by the rules for the appointment, the
appointees should not be pushed down below the appointees from the other source
inducted in the service at a later date.
(F) Where the rule permits the authorities to
relax the provisions relating to the quota, ordinarily a presumption should be
raised that there was such relaxation when there is a deviation from the quota
rule.
(G) The quota for recruitment from the
different sources may be prescribed by executive instructions, if the rules are
silent on the subject.
(H) If the quota rule is prescribed by an
executive instruction, and is not followed continuously for a number of years,
the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy
Engineers as well as the officiating Deputy Engineers under the State of
Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important
questions concerning a particular service given after careful consideration
should be respected rather than scrutinised for finding out any possible error.
It is not in the interest of service to unsettle a settled position." It
is thus evident that Brij Bihari Prasad Singh having been promoted on
officiating basis with a clear stipulation that he will not get seniority in
the rank of Inspector till finally selected could not have preferred a claim
regarding his seniority on the basis of promotion of Ramjas Singh, though
initially junior to him yet substantively promoted in accordance with Rule 660C
on 8.7.1972 whereas Brij Bihari Prasad Singh was promoted after selection under
Rule 649 in 1978. The High Court totally ignored the basic principles governing
the service rules and the mandate of law. There was, therefore, no
justification of issuing the directions to direct the promotion of Brij Bihari
Prasad Singh while deciding the writ petition No.697 of 1995 and dismissing the
LPA No.1018/95 vide the judgment impugned in this appeal filed against Brij
Bihari Prasad Singh.
It appears that the High Court totally lost
sight of the fact that in his petitions filed from time to time Brij Bihari
Prasad Singh had not impleaded any of his seniors as party-respondents. In the
absence of persons likely to be affected by the relief prayed for, the writ
petitions should have normally been dismissed unless there existed specific
reasons for non impleadment of the affected persons.
Neither any reason was assigned by the writ
petitioner nor the court felt it necessary to deal with this aspect of the
matter. Ignoring such a basic principle of law has resulted in the supersession
of 168 Inspectors and 407 Dy.SPs. The writ petition filed by Brij Bihari Prasad
Singh being totally misconceived, devoid of any legal force and prayers made
being in contravention of the rules applicable in the case deserved dismissal,
which was unfortunately not done with the result that the interests of many
seniors have been threatened, endangered and adversely affected. The appeal of
the State has, therefore, to be allowed by setting aside the impugned judgment.
Kameshwar Prasad Singh respondent in his
petition has preferred his claim of promotion on the ground of promotion of his
junior Brij Bihari Prasad Singh who was impleaded as respondent No.6. He had
specifically submitted:
"That from the facts, law and
circumstances stated above it is clear that the petitioner was at all material
times senior to the respondent No.6 and the respondent NO.6 illegally scored a
march over him therefore on the principles of recognised service jurisprudence
on next below rule, the petitioner should be assigned seniority from 27.7.71
and be confirmed with effect from 2.7.78 and the petitioner be put just above
the respondent no.6 in the seniority list of Inspector of Police." He had
prayed that:
"For issuance of appropriate writ, order
or direction to direct the official respondents to assign seniority in the rank
of Inspector just above the respondent No.6 and to confirm on the post of
Inspector with effect from 2.7.78 when his junior respondent no.6 has been
confirmed and for grant of all consequential benefits." The writ petition
was disposed of holding Kameshwar Prasad Singh as senior to Brij Bihari Prasad
Singh as Sub Inspector of Police having been confirmed as Inspector on 1.4.1982
with observeation:
"Subsequently, whatever the advantage,
the respondent No.6 has derived in pursuance of different orders of this Court,
including the orders/judgments passed in CWJC No.6873/90;
4108/91 and 6975/95, were so obtained by him
without impleading the petitioner as part-respondent therein.
In this background, while I do not doubt the
decisions given by this Court in different cases of respondent No.6, Brij
Bihari Prasad and while I do not doubt the consequential orders which have been
issued by the respondents on the basis, I hold that the petitioner cannot
suffer for the same and he is entitled for seniority over the respondent No.6
as Inspector of Police, though not promoted, while the Respondent No.6 was
granted officiating promotion by way of stop gap arrangement on 27th July,
1971.
Accordingly, the respondents are directed to
treat the petitioner as senior to the respondent No.6 as Inspector of Police
and provide him with the consequential benefit of the same, including promotion
to the next higher post, if the petitioner is found fit for the same." The
appeal filed against this judgment was dismissed on the ground of delay and
without consideration of the pleas raised on facts. The concept of equality as
envisaged under Article 14 of the Constitution is a positive concept which
cannot be enforced in a negative manner. When any authority is shown to have
committed any illegality or irregularity in favour of any individual or group
of individuals other cannot claim the same illegality or irregularity on ground
of denial thereof to them. Similarly wrong judgment passed in favour of one
individual does not entitle others to claim similar benefits. In this regard
this Court in Gursharan Singh & Ors. v. NDMC & Ors. [1996 (2) SCC 459]
held that citizens have assumed wrong notions regarding the scope of Article 14
of the Constitution which guarantees equality before law to all citizens.
Benefits extended to some persons in an irregular or illegal manner cannot be
claimed by a citizen on the plea of equality as enshrined in Article 14 of the
Constitution by way of writ petition filed in the High Court. The Court
observed:
"Neither Article 14 of the Constitution
conceives within the equality clause this concept nor Article 226 empowers the
High Court to enforce such claim of equality before law.
If such claims are enforced, it shall amount
to directing to continue and perpetuate an illegal procedure or an illegal
order for extending similar benefits to others. Before a claim based on
equality clause is upheld, it must be established by the petitioner that his
claim being just and legal, has been denied to him, while it has been extended
to others and in this process there has been a discrimination." Again in
Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain & Ors.
[1997 (1) SCC 35] this Court considered the scope of Article 14 of the
Constitution and reiterated its earlier position regarding the concept of
equality holding:
"Suffice it to hold that the illegal
allotment founded upon ultra vires and illegal policy of allotment made to some
other persons wrongly, would not form a legal premise to ensure it to the respondent
or to repeat or perpetuate such illegal order, nor could it be legalised. In
other words, judicial process cannot be abused to perpetuate the illegalities.
Thus considered, we hold that the High Court was clearly in error in directing
the appellants to allot the land to the respondents." In State of Haryana
& Ors v. Ram Kumar Mann[1997 (3) SCC 321] this Court observed:
"The doctrine of discrimination is
founded upon existence of an enforceable right. He was discriminated and denied
equality as some similarly situated persons had been given the same relief.
Article 14 would apply only when invidious discrimination is meted out to
equals and similarly circumstanced without any rational basis or relationship
in that behalf. The respondent has no right, whatsoever and cannot be given the
relief wrongly given to them, i.e., benefit of withdrawal of resignation. The
High Court was wholly wrong in reaching the conclusion that there was invidious
discrimination. If we cannot allow a wrong to perpetrate, an employee, after
committing mis-appropriation of money, is dismissed from service and
subsequently that order is withdrawn and he is reinstated into the service.
Can a similarly circumstanced person claim
equality under Section 14 for reinstatement? The answer is obviously
"No".
In a converse case, in the first instance,
one may be wrong but the wrong order cannot be the foundation for claiming
equality for enforcement of the same order. As stated earlier, his right must
be founded upon enforceable right to entitle him to the equality treatment for
enforcement thereof. A wrong decision by the Government does not give a right
to enforce the wrong order and claim parity or equality. Two wrongs can never
make a right." In view of our finding that the judgment of the High Court
in the case of Brij Bihari Prasad Singh being contrary law was not sustainable
and liable to be dismissed, the impugned judgment in the case of Kameshwar
Prasad Singh's case cannot be upheld. The aforesaid respondent is, therefore,
not entitled to any relief as prayed for by him on the analogy of the judgments
passed and directions given in Brij Bihari Prasad Singh's case.
We do not agree with the submissions of the
respondents that the question of law raised by the appellants in regard to
determination of seniority could not be permitted to be raised as allegedly the
said point had not been pleaded before the High Court and is altogether a new
point taken for the first time in this Court. As noticed earlier, the High
Court had dismissed the LPAs only on the ground of limitation without deciding
the other pleas raised by the appellants. A perusal of LPA No.1018 of 1995
(Annexure P-6) shows that in para 9 the appeallant State had submitted that the
Home Secretary of the State had filed a counter affidavit in the writ petition
No.697 of 1995 stating therein:
"...it is not correct to say that the
petitioner (respondent in this appeal) is validly entitled to be promoted to
the rank of Deputy Superintendent of Police from earlier date when junior to
him namely Ramjas Singh joined as inspector on 8.7.1972 has been promoted to
the rank of Deputy Superintendent of Police. The promotion of the petitioner in
the rank of Inspector is different from Ramjas Singh. The petitioner was
promoted to the rank of Inspector on adhoc basis with effect from 27.7.71 and
has been confirmed with effect from 1.3.1975 on availability of permanent
vacancy alongwith those Inspectors who were officiated on or before 27.7.1971,
whereas Ramjas Singh was promoted in the rank of Inspector out of turn on
8.7.1972 on probation on the basis of Presidents Police Medal from gallantry.
After expiry of probation of two years he (Ramjas Singh) had been confirmed
with effect from 8.7.1974 and promoted to the rank of Deputy Superintendent of
Police, with effect from 25.10.1975, alongwith others. As such petitioner is
not validly entitled for promotion to the rank of Deputy Superintendent of
police from the earlier date when Sri Ramjas Singh was promoted to the rank of
Deputy Superintendent of Police with effect from 25.10.1975." In the memo
of appeal, the appellant herein submitted that the promotion case of the
respondent was different from that of Ramjas Singh. It was pleaded:
"....The petitioner was promoted to the
rank of Inspector on adhoc basis with effect from 27.7.1971 and later on he was
given officiating promotion from that very date, i.e. 27.7.1971 and was
confirmed with effect from 1.3.1975 on the availability of permanent vacancy
alongwith those Inspectors, who were officiating on or before 27.7.1971 and
promoted to the rank of Deputy Superintendent of Police with effect from
11.7.1981 according to seniority.
As stated earlier Sri Ramjas Singh was
promoted out of turn in the rank of Inspector on 8.7.1972 on the basis of
gallantry award by the Govt. and the period of probation was treated by the
government from 8.7.1972 itself. After expiry of probation of two years he was
confirmed with effect from 8.7.1974 and promoted in the rank of Deputy
Superintendent of Police from 25.10.1975. It was an exceptional case. This is
not followed in general officiating officers are confirmed on availability of
permanent vacancy and not put on probation from the date of officiation. If
this respondent is put on probation with effect from 27.7.1971 i.e. from the
date of officiation so many police officers will be superseded." The State
also submitted that the learned Single Judge of the High Court had committed a
mistake of law by not considering all aspects of the matter before allowing the
writ petition on 26th July, 1975 which required to be interfered with by the
Division Bench of the High Court in the LPA. When specific plea regarding facts
and law had been raised in the LPA, the arguments of the respondents cannot be
accepted that such a plea had been raised by the appellant for the first time
in this Court. It is further contended that as the respondent was, in the
meantime, appointed/promoted in the IPS Cadre and as per requirements of the
State Government he has already submitted his resignation from the State
Service, the acceptance of the appeal and setting aside the directions of the
High Court would result in great hardship to him and amount to unsettling his
settled service rights particularly when his promotion/appointment to the IPS
cadre has not been challenged and is not in dispute. Such a plea by itself
cannot be accepted as a ground to dismiss the appeal filed against an order
which we have held to be illegal being contrary to law and the Service Rules
applicable in the case. Once the judgment is set aside, the consequences have
to follow and a person taking advantage or benefit of the wrong orders is to
suffer for his own faults which cannot be attributed to anybody-else. However,
in appropriate cases this Court can mould the relief to safeguard the interests
of a person wherever required. For doing complete justice between the parties,
appropriate directions can be given to protect the interests of a person who is
found to have been conferred the benefits on the basis of judicial
pronouncements made in his favour. As the appellant-State has been found to be
careless and negligent in defending its cases, we feel and are inclined to
protect the interests of Brij Bihari Prasad Singh, respondent. We are convinced
that the interests of justice would be served by holding that despite setting
aside the judgments of the High Court his interests be protected by not
disturbing his promotions made from time to time. However, judgments passed in
his favour cannot be permitted to be made a basis for conferment of similar
rights upon other persons who are shown to have filed writ petitions or
representations which, if accepted, are likely to adversely affect the
interests of more than 150 Inspectors and 400 Officers in the rank of Dy.SP.
Similarly, if any benefit has been conferred
upon any other person who has superannuated, no useful purpose would be served
by directing his demotion retrospectively and recovery of the excess emoluments
paid to him. Under the circumstances, the appeals are allowed/disposed of with
the directions that: (1) Judgments of the learned Single Judge of the LPA Bench
passed in the case of Brij Bihari Prasad Singh impugned in Civil Appeal arising
out of SLP (C) No.12013 of 1998 are set aside. (2) Similarly the judgments
passed in Kameshwar Prasad Singh's case by the Single Judge and the LPA Bench
which are impugned in this appeal arising out of SLP (C) NO.10653/98 are also
set aside. (3) In view of setting aside the judgments in both the appeals
mentioned above no orders are required to passed in Civil Appeal arising out
SLP (C) NO.16740/98. (4) It is, however, made clear that despite setting aside
of the impugned judgments the service benefits conferred upon Brij Bihari
Prasad Singh consequent upon the judgments of the High Court shall not be
withdrawn and his appointment/promotion in the IPS cadre not disturbed. (5)
Consequent upon this judgment the appellant-State shall also not take any
action against a person conferred with similar benefits as were conferred upon
Brij Bihari Prasad Singh if that person has retired and is no more in service.
Parties to bear their own costs.
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