As per case facts, Sub-Inspectors Brij Bihari Prasad Singh (BBPS) and Kameshwar Prasad Singh (KPS) were appointed in 1966. BBPS was initially promoted as Inspector on an officiating basis in ...
No Acts & Articles mentioned in this case
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CASE NO.:
Special Leave Petition (civil) 10653 of 1998
Special Leave Petition (civil) 12013 of 1998
Special Leave Petition (civil) 16740 of 1998
PETITIONER:
STATE OF BIHAR & ORS.
Vs.
RESPONDENT:
KAMESHWAR PRASAD SINGH & ANR.
DATE OF JUDGMENT: 27/04/2000
BENCH:
S. Saghir Ahmad, & R. P. Sethi.
JUDGMENT:
SETHI, J.
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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,
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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
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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.@@
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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
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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.
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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
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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-Ã -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@@
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condoned the delay in approaching this Court of about 31@@
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years. 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:
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"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@@
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justice to all the parties concerned, we are of the opinion@@
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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:
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"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
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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
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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@@
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2nd July, 1978. Rule 660(c) deals with the out of turn@@
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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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17
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@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
of his junior Brij Bihari Prasad Singh who was impleaded as@@
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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."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17
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@@
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to law was not sustainable and liable to be dismissed, the@@
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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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17
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,
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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@@
JJJ
directions that: (1) Judgments of the learned Single Judge@@
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and 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.
Legal Notes
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