Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7328-7329 OF 2013

(Arising out of S.L.P. (C) Nos. 15197-98 of 2012)

State of Uttaranchal and another ...

Appellants

Versus

Sri Shiv Charan Singh Bhandari and others ...Respondents

J U D G M E N T

Dipak Misra, J.

Delay condoned.

2.Leave granted in both the special leave petitions.

3.The respondents were appointed in Group III posts in

Subordinate Agricultural Services (SAS) in the

Department of Agriculture in the undivided State of

Uttar Pradesh. Some of them were appointed in

1974 and some in the year 1975. A provisional

seniority list in the cadre of SAS Group III was

Page 2 prepared where they were shown senior to one

Madhav Singh Tadagi. The said Madhav Singh

Tadagi, who was working as Agriculture Plant

Protection Supervisor, Group III, was given ad hoc

promotion to the post of Assistant Development

Officer (Plant Protection, Group II) by the Deputy

Director of Agriculture on 15.11.1983. In the year

1983 a Selection Committee was constituted for

making promotion to Group II posts on the basis of

seniority-cum-fitness from amongst the employees of

Group III posts and in the said selection process the

respondents as well as Madhav Singh Tadagi were

promoted on regular basis in Group II posts. After

regular promotion was made, a seniority list was

finalized in respect of promotional cadre and the

respondents were shown senior to Madhav Singh

Tadagi. The final seniority list was issued on

12.2.1994.

4.On 9.11.2000, under U.P. Reorganization Act, 2000

the State of Uttaranchal (presently State of

Uttarakhand) was created. The respondents as well

2

Page 3 as Madhav Singh Tadagi were allocated to the State

of Uttarakhand. On 14.10.2003, the respondents

filed a claim petition No. 154 of 2003 before the

Public Services Tribunal of Uttarakhand at Dehradun

(for short “the tribunal”) claiming that they were

entitled to promotion from SAS Group III to SAS

Group II with effect from 15.11.1983 the date on

which the junior was promoted and, accordingly, to

get their pay fixed along with other consequential

benefits, namely, arrears of salary and interest

thereof. Be it noted, the respondents had submitted

number of representations during the period from

July, 2002 to June, 2003 but the said representations

were not dealt with.

5.The claims put forth by the respondents were

resisted by the State and its functionaries

contending, inter alia, that promotion to Madhav

Singh Tadagi was given by an officer who was not

competent to promote any incumbent from SAS

Group III to SAS Group II post; that the promotion was

made without prejudice to the seniority of other

3

Page 4 employees; and that the grievance put forth was hit

by limitation. The tribunal, after hearing the rival

submissions urged before it, came to hold that as a

junior person was extended the benefits of promotion

in the year 1983, the seniors could not be deprived

of the said promotional benefits and, hence, they are

entitled to get promotion from the said date. Being

of this view, the tribunal directed that the

respondents shall be given benefits of promotion with

effect from November, 1983 and as they had already

been promoted in the year 1989, they would be

entitled to notional promotional benefits from

15.11.1983.

6.Assailing the order of the tribunal the State of

Uttarakhand and its functionaries preferred Writ

Petition No. 133 of 2006 before the High Court of

Uttarakhand at Nainital. The High Court opined that

Madhav Singh Tadagi was promoted on ad hoc basis,

continued in the said post and was allowed

increments and the promotional pay-scale till his

regular promotion, and the claimants though seniors,

4

Page 5 were promoted on a later date on regular basis and,

therefore, the directions issued by the tribunal could

not be found fault with. After disposal of the writ

petition, an application for review was filed with did

not find favour with the High Court and accordingly it

dismissed the same by order dated 2.3.2012. Hence,

the present appeals by special leave have been

preferred challenging the said orders.

7.We have heard Ms. Rachna Srivastava, learned

counsel appearing for the appellants, and Mr. Gaurav

Goel, learned counsel appearing for the respondents.

8.It is urged by learned counsel for the appellants that

both the tribunal and the High Court have failed to

appreciate that the claim put forth before the tribunal

did not merit any consideration being hit by the

doctrine of delay and laches inasmuch as the

respondents did not challenge the grant of ad hoc

promotion to the junior employee from 15.11.1983

till 14.10.2003. It is her further submission that the

respondents really cannot have any grievance in

praesenti as said Madhav Singh Tadagi’s promotion

5

Page 6 from 1983 has been cancelled during the pendency

of the special leave petition by the competent

authority of the State Government, and quite apart

from that when the junior employee was only given

ad hoc promotion and continued in the said post but

not conferred seniority in the promotional grade

when regular promotions took place in 1989. The

learned counsel for the State would further submit

that the grant of notional promotion along with other

consequential benefits to the claimant-respondents

solely on the ground that the junior functioned in the

promotional post from a prior date, is not justified.

9.Mr. Gaurav Goel, learned counsel appearing for the

respondents, in oppugnation to the aforesaid

proponements, would contend that the respondents

had raised their grievance by bringing it to the notice

of the Competent Authority in the year 1984 but they

fell in deaf ears. Thereafter, they submitted number

of representations but when sphinx like silence was

maintained by the State which is totally unexpected

from a model employer, they approached the tribunal

6

Page 7 and, in the obtaining factual matrix, the tribunal has

appositely not thrown their claim overboard on the

ground of delay and laches and, hence, the order

passed by the tribunal, which has been given the

stamp of approval by the High Court, cannot be

flawed. It is canvassed by him that the submission

that Madhav Singh Tadagi’s promotion has been

cancelled and, therefore, the grievance of the

respondents stands mitigated, has no legs to stand

upon, and that apart the order of cancellation has

already been assailed before the High Court and an

order of stay is in vogue. A submission has also been

propounded that setting aside of the order would be

inequitable as the junior has already received the

benefit and the seniors have been deprived of the

same.

10.At the very outset, we would like to make it clear that

we are not going to deal with the cancellation of

promotion of the said Madhav Singh Tadagi as the

same is sub-judice before the High Court and an

order of stay has been passed. We may further

7

Page 8 clarify that advertence to the same by us is not

required for the adjudication of the controversy

involved in these appeals.

11.The centripodal issue that really warrants to be

dwelled upon is whether the respondents could have

been allowed to maintain a claim petition before the

tribunal after a lapse of almost two decades

inasmuch as the said Madhav Singh Tadagi, a junior

employee, was conferred the benefit of ad hoc

promotion from 15.11.1983. It is not in dispute that

the respondents were aware of the same. There is

no cavil over the fact that they were senior to

Madhav Singh Tadagi in the SAS Group III and all of

them were considered for regular promotion in the

year 1989 and after their regular promotion their

seniority position had been maintained. We have

stated so as their inter-se seniority in the promotional

cadre has not been affected. Therefore, the

grievance in singularity is non-conferment of

promotional benefit from the date when the junior

was promoted on ad hoc basis on 15.11.1983.’

8

Page 9 12.It can be stated with certitude that when a junior in

the cadre is conferred with the benefit of promotion

ignoring the seniority of an employee without any

rational basis the person aggrieved can always

challenge the same in an appropriate forum, for he

has a right to be considered even for ad hoc

promotion and a junior cannot be allowed to march

over him solely on the ground that the promotion

granted is ad hoc in nature. Needless to emphasise

that if the senior is found unfit for some reason or

other, the matter would be quite different. But, if

senior incumbents are eligible as per the rules and

there is no legal justification to ignore them, the

employer cannot extend the promotional benefit to a

junior on ad hoc basis at his whim or caprice. That is

not permissible.

13.We have no trace of doubt that the respondents

could have challenged the ad hoc promotion

conferred on the junior employee at the relevant

time. They chose not to do so for six years and the

junior employee held the promotional post for six

9

Page 10 years till regular promotion took place. The

submission of the learned counsel for the

respondents is that they had given representations at

the relevant time but the same fell in deaf ears. It is

interesting to note that when the regular selection

took place, they accepted the position solely because

the seniority was maintained and, thereafter, they

knocked at the doors of the tribunal only in 2003. It

is clear as noon day that the cause of action had

arisen for assailing the order when the junior

employee was promoted on ad hoc basis on

15.11.1983. In C. Jacob v. Director of Geology

and Mining and another

1

, a two-Judge Bench was

dealing with the concept of representations and the

directions issued by the court or tribunal to consider

the representations and the challenge to the said

rejection thereafter. In that context, the court has

expressed thus: -

“Every representation to the Government for

relief, may not be replied on merits.

Representations relating to matters which have

1

(2008) 10 SCC 115

10

Page 11 become stale or barred by limitation, can be

rejected on that ground alone, without

examining the merits of the claim. In regard to

representations unrelated to the Department,

the reply may be only to inform that the matter

did not concern the Department or to inform the

appropriate Department. Representations with

incomplete particulars may be replied by

seeking relevant particulars. The replies to such

representations, cannot furnish a fresh cause of

action or revive a stale or dead claim.”

14.In Union of India and others v. M.K. Sarkar

2

, this

Court, after referring to C. Jacob (supra) has ruled

that when a belated representation in regard to a

“stale” or “dead” issue/dispute is considered and

decided, in compliance with a direction by the

court/tribunal to do so, the date of such decision

cannot be considered as furnishing a fresh cause of

action for reviving the “dead” issue or time-barred

dispute. The issue of limitation or delay and laches

should be considered with reference to the original

cause of action and not with reference to the date on

which an order is passed in compliance with a court’s

2

(2010) 2 SCC 59

11

Page 12 direction. Neither a court’s direction to consider a

representation issued without examining the merits,

nor a decision given in compliance with such

direction, will extend the limitation, or erase the

delay and laches.

15.From the aforesaid authorities it is clear as crystal

that even if the court or tribunal directs for

consideration of representations relating to a stale

claim or dead grievance it does not give rise to a

fresh cause of action.

The dead cause of action cannot rise like a phoenix.

Similarly, a mere submission of representation to the

competent authority does not arrest time. In

Karnataka Power Corpn. Ltd. through its

Chairman & Managing Director v. K.

Thangappan and another

3

, the Court took note of

the factual position and laid down that when nearly

for two decades the respondent-workmen therein

had remained silent mere making of representations

could not justify a belated approach.

3

(2006) 4 SCC 322

12

Page 13 16.In State of Orissa v. Pyarimohan Samantaray

4

it

has been opined that making of repeated

representations is not a satisfactory explanation of

delay. The said principle was reiterated in State of

Orissa v. Arun Kumar Patnaik

5

.

17.In Bharat Sanchar Nigam Limited v. Ghanshyam

Dass (2) and others

6

, a three-Judge Bench of this

Court reiterated the principle stated in Jagdish Lal

v. State of Haryana

7

and proceeded to observe

that as the respondents therein preferred to sleep

over their rights and approached the tribunal in

1997, they would not get the benefit of the order

dated 7.7.1992.

18.In State of T.N. v. Seshachalam

8

, this Court,

testing the equality clause on the bedrock of delay

and laches pertaining to grant of service benefit, has

ruled thus: -

“....filing of representations alone would not

save the period of limitation. Delay or laches is

4

(1977) 3 SCC 396

5

(1976) 3 SCC 579

6

(2011) 4 SCC 374

7

(1977) 6 SCC 538

8

(2007) 10 SCC 137

13

Page 14 a relevant factor for a court of law to determine

the question as to whether the claim made by

an applicant deserves consideration. Delay

and/or laches on the part of a government

servant may deprive him of the benefit which

had been given to others. Article 14 of the

Constitution of India would not, in a situation of

that nature, be attracted as it is well known that

law leans in favour of those who are alert and

vigilant.”

19.There can be no cavil over the fact that the claim of

promotion is based on the concept of equality and

equitability, but the said relief has to be claimed

within a reasonable time. The said principle has

been stated in Ghulam Rasool Lone v. State of

Jammu and Kashmir and another

9

.

20.In New Delhi Municipal Council v. Pan Singh

and others

10

, the Court has opined that though

there is no period of limitation provided for filing a

writ petition under Article 226 of the Constitution of

India, yet ordinarily a writ petition should be filed

within a reasonable time. In the said case the

9

(2009) 15 SCC 321

10

(2007) 9 SCC 278

14

Page 15 respondents had filed the writ petition after

seventeen years and the court, as stated earlier, took

note of the delay and laches as relevant factors and

set aside the order passed by the High Court which

had exercised the discretionary jurisdiction.

21.Presently, sitting in a time machine, we may refer to

a two-Judge Bench decision in P.S. Sadasivasway

v. State of Tamil Nadu

11

, wherein it has been laid

down that a person aggrieved by an order of

promoting a junior over his head should approach the

Court at least within six months or at the most a year

of such promotion. 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

11

(1975) 1 SCC 152

15

Page 16 stand by and allow things to happen and then

approach the Court to put forward stale claims and

try to unsettle settled matters.

22.We are absolutely conscious that in the case at hand

the seniority has not been disturbed in the

promotional cadre and no promotions may be

unsettled. There may not be unsettlement of the

settled position but, a pregnant one, the respondents

chose to sleep like Rip Van Winkle and got up from

their slumber at their own leisure, for some reason

which is fathomable to them only. But such

fathoming of reasons by oneself is not countenanced

in law. Any one who sleeps over his right is bound to

suffer. As we perceive neither the tribunal nor the

High Court has appreciated these aspects in proper

perspective and proceeded on the base that a junior

was promoted and, therefore, the seniors cannot be

denied the promotion. Remaining oblivious to the

factum of delay and laches and granting relief is

contrary to all settled principles and even would not

remotely attract the concept of discretion. We may

16

Page 17 hasten to add that the same may not be applicable in

all circumstances where certain categories of

fundamental rights are infringed. But, a stale claim

of getting promotional benefits definitely should not

have been entertained by the tribunal and accepted

by the High Court. True it is, notional promotional

benefits have been granted but the same is likely to

affect the State exchequer regard being had to the

fixation of pay and the pension. These aspects have

not been taken into consideration. What is urged

before us by the learned counsel for the respondents

is that they should have been equally treated with

Madhav Singh Tadagi. But equality has to be claimed

at the right juncture and not after expiry of two

decades. Not for nothing, it has been said that

everything may stop but not the time, for all are in a

way slaves of time. There may not be any provision

providing for limitation but a grievance relating to

promotion cannot be given a new lease of life at any

point of time.

17

Page 18 23.We will be failing in our duty if we do not state

something about the benefit of promotion conferred

on the junior employee. We have been apprised by

the learned counsel for the State that the promotion

extended to him on 15.11.1983 has been cancelled

and, as further put forth by the learned counsel for

the respondents, the same is under assail before the

High Court. The said Madhav Singh Tadagi was

neither a party before the tribunal nor before the

High Court and he is also not a party before this

Court. As presently advised, we refrain ourselves

from expressing any opinion on the cancellation of

promotion and the repercussions of the same. As the

matter is sub-judice before the High Court, suffice it

to say that the High Court shall deal with the same in

accordance with the settled principles of law in that

regard. We say no more on the said score. However,

we irrefragably come to hold that the direction given

by the tribunal which has been concurred with by the

High Court being absolutely unsustainable in law is

bound to be axed and we so do.

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Page 19 Consequently, the appeals are allowed and the orders

passed by the High Court and that of the tribunal are set

aside. There shall be no order as to costs.

.................................J.

[Anil R. Dave]

.................................J.

[Dipak Misra]

New Delhi

August 23, 2013.

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