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