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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.        9849 OF 2014   (ARISING OUT OF SLP (C) NO. 18639 OF 2012)

STATE OF UTTAR PRADESH & ORS. .....APPELLANT(S)

VERSUS

ARVIND KUMAR SRIVASTAVA & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

2) This  appeal,  preferred  by  the  State  of  Uttar  Pradesh  and  its  

functionaries,  assails  the  order  of  the  High  Court  whereby  the  writ  

petition filed by the appellants has been dismissed and the order of the  

Uttar  Pradesh  Public  Services  Tribunal,  Lucknow  (for  short,  'the  

Tribunal') passed in favour of the respondents herein, is affirmed.

3) To mention at the outset, the Tribunal as well as the High Court has  

given the respondents herein benefit of the order passed by the Court in  

earlier  round  of  litigation  filed  by  similarly  situated  persons.   The

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appellants  contend that  as  far  as  these respondents  are  concerned,  

they never approached the Court seeking such a relief and were only  

fence-sitters and, therefore, relief should not have been granted to them  

even if they were similarly situated as those persons who have been  

granted relief in the petitions filed by them.  Respondents, on the other  

hand,  contend  that  once  it  is  found  that  both  sets  of  persons  are  

identically placed, the impugned orders granting them the same benefit  

are in tune with the constitutional mandate enshrined in Article 14 of the  

Constitution of India.

4) Such a situation has not occurred for the first time in the present appeal.  

There are many decisions of  this  Court.   If  outcome alone of  those  

judgments is seen, one would find that in some cases the Courts have  

extended the benefit to the similarly situated persons, whereas, in some  

other cases similar benefit is denied to the second set of people who  

approached the Court subsequently.  However, on delving deep into the  

rationale  and  reasoning  of  these  two  sets  of  cases,  one  is  able  to  

mentally  rexognise the logic behind different  outcomes.   Under  what  

circumstances  such  a  benefit  can  be  extended  and  what  are  the  

reasons for denying the same, shall be discerned after taking note of  

those judgments.  But, before undertaking that exercise, it would be apt  

to  take  note  of  the  facts  of  this  case  in  order  to  understand  and

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appreciate as to how the respondents are placed.

5) It  was  sometime  in  the  year  1986  that  the  Chief  Medical  Officer,  

Varanasi,  had advertised certain posts of  Homeopathic  Compounder  

and Ward Boys in various newspapers. Respondents herein applied for  

the  said  post  and  participated  in  the  selection  process.  After  the  

interviews, they were kept in the waiting list. Those who were in the  

select  list  were offered the appointments.  Some of  those candidates  

who were higher in merit and were offered the appointments did not  

join.  For  this  reason,  candidates  in  the  waiting  list  were  issued  

appointment letters by the then Chief Medical Officer. These included  

the respondents herein as well. However, before the respondents could  

join their  duties, new Chief Medical Officer assumed the charge and  

blocked their joining.  Thereafter, vide order dated June 22, 1987 he  

even cancelled  the  said  appointments  made by  his  predecessor  for  

these Class-III and Class-IV posts i.e. Homeopathic Compounder and  

Ward Boys.  

6) The respondents  filed  the suit  in  the Court  of  City  Munsif,  Varanasi  

challenging the aforesaid orders dated June 22, 1987 cancelling their  

appointments by the new Chief Medical Officer. This suit was registered  

as Suit No. 695/1987. It appears that this suit could not be taken to its

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logical conclusion as same was dismissed for non-prosecution because  

of  non  appearance  of  the  advocate  of  the  respondents.  The  

respondents herein did not take any further steps in the said suit either  

by filing application for restoration of the suit  or challenging the said  

order in appeal. In fact, there was a complete quietus on the part of  

these respondents.  

7) It so happened that a few other candidates who were also affected by  

the same orders dated June 22, 1987, whereby their appointments were  

cancelled, approached the Tribunal challenging the legality, validity and  

proprietary of the said order on several grounds. One of the grounds  

taken  was  that  before  cancellation  of  their  appointments,  no  show-

cause notice was given to them. The Tribunal decided the case filed by  

them in their favour vide judgment dated August 16, 1991 holding the  

impugned order dated June 22, 1987 as illegal and void and quashed  

the  same.  Against  the order  of  the Tribunal,  the  State  filed  the writ  

petition in the High Court. This writ petition was dismissed on August  

27,  1992  thereby  confirming  the  order  passed  by  the  Tribunal.  The  

Special Leave Petition filed by the State met the same fate as that was  

also dismissed by this Court on  August 12, 1994. In this manner, the  

Tribunal's order dated August 16, 1991 attained finality and the persons  

who had approached the Tribunal got the appointments.

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8) The respondents herein waited all this while, that is till the dismissal of  

the Special Leave Petition in the year 1994. It is only thereafter, in the  

year  1995,  the  respondents  gave  a  representation  for  giving  

appointments to them as well on the strength of the judgment of the  

Tribunal  given  in  the  case  of  other  persons,  claiming  parity.  This  

representation  was rejected  vide  order  dated  June 06,  1995 by  the  

Chief  Medical  Officer.  Against  this  rejection  the  respondents  

approached  the  Tribunal  by  filing  Claim  Petition  No.  96/1996.  As  

mentioned above, the said petition was allowed by the Tribunal on the  

ground  that  they  were  in  the  same  position  in  which  the  other  

successful candidates were given relief and as such these respondents  

were also be entitled to the same relief. The High Court has affirmed  

the order of the Tribunal.   

9) The moot question which requires determination is as to whether in the  

given case, approach of the Tribunal and the High Court was correct in  

extending  the  benefit  of  earlier  judgment  of  the  Tribunal,  which  had  

attained finality as it was affirmed till the Supreme Court.  Whereas the  

appellants contend that the respondents herein did not approach the  

Court in time and were fence-sitters and, therefore, not entitled to the  

benefit of the said judgment by approaching the judicial forum belatedly.

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They also plead the some distinguishing features on the basis of which  

it is contended that the case of the respondents herein is not at par with  

the matter which was dealt with by the Tribunal in which order dated  

June 22, 1987 were passed giving benefit to those candidates who had  

approached the Court at that time.  On the other hand, the respondents  

claim that their case is identical to those who had filed the Application  

before Tribunal inasmuch as appointments of the respondents were also  

cancelled by the same order dated June 22, 1987 and, therefore, there  

is no reason to deny the same treatment which was meted out to the  

said persons, as denial thereof would amount to invidious discrimination  

which is anathema to the right of equality enshrined under Article 14 of  

the Constitution of India.

10) It is of interest to note that both the sides, in support of their respective  

submissions,  have  referred  to  certain  judgments  and  the  reading  

whereof would demonstrate that in certain cases benefit of a particular  

judicial pronouncement is extended to those who are identically situated  

on  the  principle  of  equality.   On  the  other  hand,  there  is  a  line  of  

judgments  denying  such  a  benefit  to  the  second  group  which  

approaches the Court afterwards, even when the said second group is  

similarly situated as the persons belonging to the first group.  However,  

there is no conflict between the two sets of cases.  In order to find out  

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the principles  laid  down on the  basis  of  which  benefit  of  the earlier  

judgment is extended to those coming subsequently and the situations  

where such benefit is denied, we will have to undertake a journey into  

these details and lay down clear parameters.

11) Let us first take note of those judgments, which are referred to by the  

learned counsel for the respondents, wherein this Court has applied the  

ratio of  the earlier  judgments to the similarly  situated persons giving  

them the same benefit.  First case, in the line of these cases, referred to  

by the learned counsel for the respondents is the judgment in Inder Pal  

Yadav & Ors.  v.  Union of India & Ors.1  That was a case where the  

services of casual labour employed on railway projects continuously for  

more than a year were terminated on the ground that the projects where  

these casual labour were working had been wound up.  Challenging  

their  termination,  writ  petitions under Article 32 of  the Constitution of  

India were filed in this Court.  During the pendency of these petitions,  

Railway Administration framed scheme for their absorption as temporary  

workmen on completion of 360 days of continuous employment.  This  

scheme  was  made  applicable  to  those  who  were  in  service  as  on  

January 01, 1984.  In view of this development, writ petitions were set  

out for hearing to examine the fairness and justness of the Scheme,  

1 (1985) 2 SCC 648

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particularly, on the issue as to whether choice of date of January 01,  

1984 was arbitrary or discriminatory.  The Court was not enthused by  

fixation of January 01, 1984 as the cut off date on the ground that it was  

likely  to  introduce  an  invidious  distinction  between  similarly  situated  

persons and expose some workmen to arbitrary discrimination flowing  

from fortuitous Court's order.  It was noticed that in some matters, the  

Court had granted interim stay before the workmen could be retrenched  

while in some other cases no such interim orders had been passed.  

Thus, as a result of grant of interim relief by stay/ suspension of the  

order of retrenchment, persons benefitted by the said interim order and  

were treated in service as on January 01, 1984.  Those who failed to  

obtain the interim relief, their services were terminated in the meantime  

and, therefore, they were not in service as on January 01, 1984.  The  

Court  pointed  out  that  though  both  the  groups  belong  to  the  same  

category, one category could get the benefit of the scheme with cut off   

date of January 01, 1984, whereas the other category would fail to get  

the benefit/advance of the scheme.  The Court also noted that there  

may be some other persons, similarly situated, who could not afford to  

rush to the Court and they would also be left out.  Giving these reasons,  

the date of January 01, 1984 fixed in the scheme was struck down and  

the  Court  while  accepting  the  scheme  framed  by  the  Railway  

Administration, modified the date from January 01, 1984 to January 01,

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1981.  While doing so, following reasons were given:

“5...There is another area where discrimination is likely to  rear its ugly head.  These workmen come from the lowest  grade of railway service.   They can ill  afford to rush to  court.   Their  federations  have  hardly  been  of  any  assistance.  They  had individually  to  collect  money  and  rush to court which in case of some may be beyond their  reach.  Therefore, some of the retrenched workmen failed  to know at the door of justice because these doors do not  open  unless  hudge  expenses  are  incurred.   Choice  in  such a situation, even without crystal gazing is between  incurring expenses for a litigation with uncertain outcome  and hunger  from day to  day.   It  is  a  Hobson's  choice.  Therefore, those who could not come to the Court need  not be at comparative disadvantage to those who rushed  in here.  If they are otherwise similarly situated, they are  entitled to similar treatment if not by anyone else at the  hands of this Court.”

We would like to point out at this stage itself that the writ petitions were  

filed by the concerned affected persons which were already pending  

before the Court and it was the step taken by the Railway Administration  

itself  which  framed  the  Scheme  for  their  absorption.   In  such  

circumstances, the question of fixing the rationality of cut off date in the  

said Scheme arose for consideration and the Court was of the view that  

while implementing the Scheme, those whose services were terminated  

before January 01, 1984, they would be discriminated against.  Thus,  

while giving the direction to implement the scheme which was framed by  

the Railway Administration itself,  the Court gave the direction to start  

absorbing those with longest service, which is clear from the reading of  

para 6 of the said judgment, and we  reproduce the same hereunder:

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“6.   To  avoid  violation  of  Article  14,  the  scientific  and  equitable  way  of  implementing  the  scheme  is  for  the  Railway Administration to prepare, a list of project casual  labour with reference to each division of each railway and  then start absorbing those with the longest service.  If in  the  process  any  adjustments  are  necessary,  the  same  must  be  done.   In  giving  this  direction,  we  are  considerably influenced by the statutory recognition of a  principle  well  known in  industrial  jurisprudence that  the  men with  longest  service shall  have priority  over  those  who have joined later on.  In other words, the principle of  last  come first  go or to reverse it  first  come last  go as  enunciated in Section 25-G of the Industrial Disputes Act,  1947 has been accepted.  We direct accordingly.”

This case, therefore, may not be of direct relevance.

12) Next judgment is of the Constitution Bench judgment of this Court in the  

case of K.C. Sharma & Ors. v. Union of India2.  In this case the Court  

was directly concerned with the issue of granting benefit of the earlier  

judgment.   The Government had passed Notification dated December  

05,  1988 which obviously affected the pension of  retired employees,  

retrospectively.  These persons had not challenged the said Notification  

within  the  limitation  period.   However,  in  some  other  case  filed  by  

similarly situated persons, a Full  Bench of  the Central  Administrative  

Tribunal  declared  the  Notification  invalid  vide  its  judgment  dated  

December 16,  1993.  After  this Notification was declared invalid,  the  

appellants also claimed the benefit of that judgment from the Railways.  

On Railways refusal to extend the benefit, they filed Application in the  

Central  Administrative  Tribunal  in  April  1994.   This  Application  was  2 (1997) 6 SCC 721

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dismissed by the Tribunal as time barred and against the judgment of  

the Tribunal these appellants had approached this Court.  The Court, in  

a brief order which runs into six paragraphs, held that delay in filing the  

Application should have been condoned and the appellants should have  

been given relief by the Tribunal on the same terms as were granted to  

others by the Full Bench judgment of the Tribunal .  After stating the  

aforesaid facts in the earlier paragraphs of the order, the reasons for  

extending the benefit are contained in para 6 thereof, which reads as  

under:

“6.  Having regard to the facts and circumstances of the  case, we are of the view that this was a fit case in which  the Tribunal should have condoned the delay in the filing  of  the application and the appellants should have been  given relief in the same terms as was granted by the Full  Bench of the Tribunal.  The appeal is, therefore, allowed,  the impugned judgment of the Tribunal is set aside, the  delay in filing of OA No. 774 of 1994 is condoned and the  said  application  is  allowed.   The  appellants  would  be  entitled to the same relief in the matter of pension as has  been  granted  by  the  Full  Bench  of  the  Tribunal  in  its  judgment dated 16-12-1993 in Oas No. 395-403 of 1993  and connected matters.  No order as to costs.”

Immediate comment which is called for by us to the aforesaid judgment  

is that there is no detailed discussion in the said order.  What can be  

observed from the reading of this order is that the earlier judgment of  

the Tribunal striking down the Notification dated December 05,  1988  

was treated as judgment in rem.  Naturally, when the Notification itself is  

struck down and it was a matter of pension, benefit thereof was to be

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given  to  the  others  as  well.   It  appears  that  for  this  reason  the  

Constitution Bench observed that  delay should have been condoned  

giving relief to the appellants also in the same terms as was granted by  

the Full Bench of the Tribunal.

13) In  State of Karnataka & Ors.  v.  C. Lalitha3,  which is the next case  

relied upon by the learned counsel for the respondents, our attention  

was drawn to the following passage from the said judgment:

“29.   Service  jurisprudence  evolved by  this  Court  from  time to time postulates that all persons similarly situated  should be treated similarly.  Only because one person has  approached the court that would not mean that persons  similarly  situated  should  be  treated  differently.   It  is  furthermore  well  settled  that  the  question  of  seniority  should be governed by the rules.  It may be true that this  Court took notice of the subsequent events, namely, that  in the meantime she had also been promoted as Assistant  Commissioner  which  was  a  Category  I  post  but  the  direction  to  create  a  supernumerary  post  to  adjust  her  must  be held to have been issued only  with a view to  accommodate her therein as otherwise she might  have  been  reverted  and  not  for  the  purpose  of  conferring  a  benefit to which she was not otherwise entitled to.”

14) We have to understand the context in which the aforesaid observations  

came to be made.  That was a case where the order passed in the first   

round of litigation between the same parties came up for construction  

and its effect.  The background in which the issue arose was that an  

amendment made in the reservation policy of the State was challenged  

3 (2006) 2 SCC 747

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in N.T. Devin Katti v. Karnataka Public Service Commission4.  In that  

judgment, this Court had declared that the revised reservation policy  

was not applicable to the selections initiated prior thereto.  It resulted in  

the consequential  direction  to  the State  Government  to  appoint  N.T.  

Devin  Katti  (appellant  in  that  case)  on  the  post  of  Tehsildar  with  

retrospective effect.  At the same time, it was also made clear that for  

the purposes of seniority such persons would have to be placed below  

the last candidates appointed in the year 1976 and they would also be  

not entitled to any back wages.  Insofar as, respondent C. Lalitha is  

concerned,  on  the  basis  of  revised  reservation  policy,  she  was  

appointed as Tehsildar.  After the rendition of the aforesaid judgment in  

N.T.  Devin  Katti's  case (supra),  she  approached  the  Karnataka  

Administrative  Tribunal  by  filing  an  OA  claiming  appointment  as  

Assistant Commissioner. The Tribunal dismissed the OA.  However, her  

appeal against the order of the Tribunal was allowed by this Court vide  

orders  dated  March  15,  1994,  taking  note  of  the  fact  that  she  was  

selected and shown in the first list, which was upheld by the Court in the  

case  of  N.T.  Devin  Katti  (supra).   Since  she  had  already  been  

promoted to Class I Post of Assistant Commissioner by then, for her  

appointment the Court directed that if no vacancies are available, the  

State Government will create a supernumerary post and for the purpose  

4 (1990) 3 SCC 157

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of seniority, she had to be placed below the last candidate appointed in  

the year 1976 and was not entitled to any back wages.  It is clear from  

these directions that her appeal was allowed giving same directions as  

given in N.T. Devin Katti (supra).  It so happened that though her name  

was in the first list, which was upheld in N.T. Devin Katti's case (supra),  

her rank was little below and there were few persons above her.  As per  

her rank in the general merit Category I posts, after taking the opinion of  

the Public Service Commission, it was decided by the Government to  

consider her for the post of Assistant Controller of Accounts , a Category  

I Post, as the marks secured by her were below the marks secured by  

the  candidates  selected  as  Assistant  Controller  of  Accounts.   She  

refused to accept the said post and approached the Tribunal again.  The  

Tribunal dismissed the OA filed by her. Against that order of the Tribunal  

she  approached  the  Karnataka  High  Court,  which  allowed  the  writ  

petition directing the State to implement order dated March 15, 1994  

which was passed by this Court in the earlier round.  Against this order  

of the High Court, the State preferred appeal and it is in this backdrop  

that  effect  of  the  earlier  order  dated  March  15,  1994  came  up  for  

consideration. It was argued by the State that effect of the order dated  

March 15, 1994 was to relegate the parties to the same position as if  

the  reservation  policy  was  not  amended  and  if  so  construed,  the  

respondent having been placed in the supplementary list could not have

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been laid any claim for any post in the administrative service.  It is this  

contention which was accepted by this Court noticing another crucial  

fact that there were many persons who were higher in the merit than the  

respondent and the effect of the earlier order passed by this Court could  

not have been to ignore the said merit list and give something to the  

respondent which was not admissible in law.  The Court held that merit  

should be the sole criteria for selection of candidates and the earlier  

judgment was to be construed as if it had been rendered in accordance  

with  law.   While  holding  so,  the Court  also  sited  many case  law to  

demonstrate that the judgments are not to be read as a statute.  It is in  

the aforesaid context that observations are made in para 29, on which  

heavy reliance has been placed by the respondent.

When we understand the impact of the observations contextually,  

we find that again the issue at hand is totally different.

15) Next  case  in  the  line,  on  which  the  respondents  rely,  is  Maharaj  

Krishna Bhatt & Anr.  v.  State of Jammu & Kashmir5.  In that case,  

the  appellants  and  some  other  Constables  approached  the  Chief  

Minister of the respondent State for relaxation of rules relating to 50%  

direct  recruitment  quota for  appointment  as Sub-Inspectors  of  Police  

(PSI).  The Chief Minister's office in turn called for the Director General's  

5 (2008) 9 SCC 24

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recommendations,  who recommended the name of  one person only,  

namely, Hamidullah Dar.  Hamidullah Dar was accordingly appointed as  

PSI  with  effect  from April  01,  1987.   Thereupon,  other  persons also  

approached the Court.   In the case of one Abdul Rashid Rather, the  

Single  Judge  of  the  High  Court  allowed  his  writ  petition.   The  

respondent  State  filed  LPA which  was dismissed,  and  subsequently,  

special leave petition was also dismissed by this Court.  Consequently,  

Abdul Rashid Rather was also appointed as PSI.  It would be pertinent  

to mention that the appellants in the said appeal, along with two others,  

had also filed the writ petition in the year 1987, which was disposed of  

on  September  13,  1991  and  a  direction  was  issued  to  the  Director  

General of Police to consider their cases for appointment to the post of   

PSI by relaxing of rules.  Pursuant to the said directions, the Director  

General of Police considered and rejected the cases of the appellants  

for appointment without giving any reasons.  These appellants initially  

filed the contempt  petition,  but  thereafter  preferred fresh writ  petition  

being Writ Petition No. 3735 of 1997.  This writ petition of the appellants  

was pending when the orders of appointment came to be passed in the  

writ  petition  filed  by  Abdul  Rashid  Rather  and  on  the  basis  of  that  

judgment, Abdul Rashid Rather had been given the appointment with  

effect from April  01, 1987.  In this scenario, when writ petition of the  

appellants came up for  hearing before the Single Judge of  the High

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Court, it was allowed vide judgment dated April 30, 2001 following the  

judgment in the case of Abdul Rashid Rather, which had been affirmed  

by this Court as well.  However, the State filed appeal thereagainst and  

this appeal was allowed by the Division Bench of the High Court.  Even  

the review petition filed by the appellants was dismissed by the Division  

Bench.  Special Leave Petition was filed challenging the judgment of the  

Division Bench, which was the subject matter in the case of  Maharaj  

Krishan Bhatt (supra).  Leave was granted and ultimately appeal was  

allowed  holding  that  the  appellants  were  also  entitled  to  the  same  

treatment.  While doing so, the Court made the following observations:

“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.”

16) No  doubt,  the  Court  extended  the  benefit  of  the  decision  in  Abdul  

Rashid Rather's case to the appellants.  However, what needs to be  

kept  in  mind  is  that  these  appellants  had  not  taken  out  legal  

proceedings after  the judgment in Abdul Rashid Rather's case. They

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had approached the Court well in time when Abdul Rashid Rather had  

also filed the petition.

17) The  submission  of  learned  counsel  for  the  appellants,  on  the  other  

hand, is that the respondents did not approach the Court earlier and  

acquiesced into the termination orders. Approaching the Court at such a  

belated  stage,  after  the  judgment  in  some  other  case,  was  clearly  

impermissible and such a petition should have been dismissed on the  

ground of laches and delays as well as acquiescence.  It was submitted  

that in such circumstances this Court has taken consistent view to the  

effect that benefit of judgment in the other case should not be extended  

even if the persons in the two sets of cases were similarly situated.  Mr.  

P.N. Misra, learned senior counsel appearing for the appellants, pointed  

out in this behalf that though the orders were passed by the appellants  

on June 22, 1987, the respondents have filed their claim petition before  

the Tribunal only in the year 1996, i.e. after a period of 9 years from the  

date of passing of the orders.  He drew our attention to the following  

observations in M/s. Rup Diamonds & Ors. v. Union of India & Ors.6:

“8.   Apart  altogether from the merits of the grounds for  rejection  –  on  which  it  cannot  be  aid  that  the  mere  rejection of the special leave petitions in the cases of M/s  Ripal Kumar & Co., and M/s. H. Patel & Co., could, by  itself, be construed as the imprematur of this Court on the  correctness  of  the  decisions  sought  to  be  appealed  

6 (1989) 2 SCC 356

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against – there is one more ground which basically sets  the present case apart.  Petitioner are re-agitating claims  which they had not pursued for several years.  Petitioners  were  not  vigilant  but  were  content  to  be  dormant  and  chose to sit on the fence till somebody else's case came  to be decided.  Their case cannot be considered on the  analogy  of  one  where  a  law  had  been  declared  unconstitutional  and  void  by  a  court,  so  as  to  enable  persons to recover monies paid under the compulsion of a  law later so declared void.  There is also an unexplained,  inordinate  delay  in  preferring  this  writ  petition  which  is  brought after almost an year after the first rejection.  From  the orders in M/s Ripal Kumar & Co.'s case and M/s H.  Patel & Co.'s case it is seen that in the former case the  application for  revalidation and endorsement  was made  on March 12, 1984 within four months of the date of the  redemption certificate dated November 16, 1983 and in  the latter case the application for revalidation was filed on  June  20,  1984  in  about  three  months  from  the  Redemption Certificate dated March 9, 1984.”

18) That case pertains to import facility for import of OGL items available  

under para 185(3) and (4) of Import – Export Policy, 1982-83 to export   

houses after discharging export obligation on advance/imprest licence.  

The petitioners had applied for, and were granted, this imprest licence  

for the import of uncut and unset diamonds with the obligation to fulfil  

certain  export  commitment  for  the  export,  out  of  India,  of  cut  and  

polished diamonds of the FOB value, stipulated in each of the imprest  

licences.   As  per  the  petitioners,  they  have  discharged  their  export  

obligation and, therefore, in terms of para 185(4) of the Import – Export  

policy,  they were entitled to  the facility  for  the import  of  OGL items.  

However, they sought revalidation four years after discharge of export

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obligation and five years after the expiry of the licence.  This claim was  

rejected by the authorities on the ground of delay.  Writ petition was filed  

in this Court one year after such rejection.  In these circumstances, the  

Court  dismissed the writ  petition for  approaching the Court  belatedly  

and refused to  follow the orders  passed in  another  petitions by this  

Court, which was sought to be extended on the ground that the petitions  

were exactly similar to those petitions which were preferred in another  

case.

No doubt,  writ  petition was dismissed on the ground of  unexplained  

inordinate delay, but it would be necessary to observe that it was not a  

service matter.  However, the principle of delay and laches would have  

some relevance for our purposes as well.

19) State of Karnataka & Ors.  v.  S.M. Kotrayya & Ors.7 is, on the other  

hand,  a  service  matter.   Here,  the  respondents,  while  working  as  

teachers  in  the  Department  of  Education,  availed  of  Leave  Travel  

Concession (LTC) during the year 1981-82.  But later it was found that  

they had never utilised the benefit of LTC but had drawn the amount  

and used it.  Consequently, recovery was made in the year 1984-86.  

Some  persons  in  similar  cases  challenged  the  recovery  before  the  

Administrative Tribunal which allowed their Applications in August 1989.  

7 (1996) 6 SCC 267

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On  coming  to  know  of  the  said  decision,  the  respondents  filed  

Applications in August 1989 before the Tribunal with an application to  

condone the delay.  The Tribunal condoned the delay and allowed the  

OAs.  Appeal against the said order was allowed by this Court holding  

that  there  was unexplained  delay  in  approaching  the  Tribunal.   The  

Court relied upon the Constitution Bench case in S.S. Rathore v. State  

of  M.P.8,  which  deals  with  the  manner  in  which  limitation  is  to  be  

counted  while  approaching  the  Administrate  Tribunal  under  the  

Administrative Tribunal Act, 1985.  Here again, on the ground of delay,  

the Court refused to extend the benefit of judgment passed in respect of  

other similarly situated employees.

20) Both  these  judgments,  along  with  some other  judgments,  were  take  

note of in U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr.9 That was a  

case where the issue pertained to entitlement of the employees of U.P.  

Jal  Nigam  to  continue  in  service  up  to  the  age  of  60  years.   In  

Harwindra Kumar  v.  Chief Engineer, Karmik10 this Court had earlier  

held that these employees were in fact entitled to continue in service up  

to  the age of  60 years.   After  the aforesaid decision,  a spat  of  writ  

petitions came to be filed in the High Court by those who had retired  

8 (1989) 4 SCC 582 9 (2006) 11 SCC 464 10 (2005) 13 SCC 300

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long back.  The question that arose for consideration was as to whether  

the employees who did not wake up to challenge their retirement orders,  

and accepted the same, and had collected their post retirement benefits  

as well,  could be given relief in the light of the decision delivered in  

Harwindra Kumar  (supra).   The Court refused to extend the benefit  

applying the principle of delay and laches.  It was held that an important  

factor  in  exercise  of  discretionary  relief  under  Article  226  of  the  

Constitution of India is laches and delay.  When a person who is not  

vigilant of his rights and acquiesces into the situation, his writ petition  

cannot be heard after a couple of years on the ground that the same  

relief should be granted to him as was granted to the persons similarly  

situated  who  were  vigilant  about  their  rights  and  challenged  their  

retirement.  In para 7, the Court quoted from  M/s. Rup Diamonds &  

Ors.  (supra).   In  para 8,  S.M.  Kotrayya  (supra)  was taken note of.  

Some other judgments on the same principle of laches and delays are  

taken note of in paras 9 to 11 which are as follows:

“9.  Similarly in Jagdish Lal v. State of Haryana, (1997) 6  SCC 538, this Court reaffirmed the rule if a person chose  to sit over the matter and then woke up after the decision  of the court, then such person cannot stand to benefit.  In  that case it was observed as follows: (SCC p. 542)

“The delay disentitles a party to discretionary  relief  under Article 226 or Article 32 of the Constitution.  The appellants  kept  sleeping over  their  rights  for  long and woke up when they had the impetus from  Union  of  India  v.  Virpal  Singh  Chauhan,  (195)  6  SCC 684.   The  appellants'  desperate  attempt  to

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redo the seniority is not amenable to judicial review  at this belated stage.”

10.  In Union of India v.  C.K. Dharagupta, (1997) 3 SCC  395, it was observed as follows:

“9.  We, however, clarify that in view of our finding  that the judgment of  the Tribunal  in  R.P. Joshi  v.  Union of India, OA No. 497 of 1986 decided on 17- 3-1987, gives relief only to Joshi, the benefit of the  said judgment of the Tribunal cannot be extended  to  any  other  person.   The  respondent  C.K.  Dharagupta  (since  retired)  is  seeking  benefit  of  Joshi case.  In view of our finding that the benefit of  the judgment of the Tribunal dated 17-3-1987 could  only  be  given  to  Joshi  and  nobody  else,  even  Dharagupta is not entitled to any relief.”

11.  In Govt. of W.B. v. Tarun K. Roy, (1997) 3 SCC 395,  their  Lordships  considered  delay  as  serious  factor  and  have  not  granted  relief.   Therein  it  was  observed  as  follows: (SCC pp. 359-60, para 34)

“34.   The  respondents  furthermore  are  not  even  entitled to any relief on the ground of gross delay  and laches on their  part  in  filing the writ  petition.  The first  two writ  petitions  were  filed  in  the  year  1976 wherein the respondents herein approached  the High Court in 1992.  In between 1976 and 1992  not only two writ  petitions had been decided, but  one way or  the other,  even the matter  had been  considered  by  this  Court  in  State  of   W.B.  v.  Debdas Kumar, 1991 Supp (1) SCC 138.  The plea  of delay, which Mr. Krishnamani states, should be a  ground for denying the relief to the other persons  similarly  situated  would  operate  against  the  respondents.   Furthermore,  the  other  employees  not  being  before  this  Court  although  they  are  ventilating  their  grievances  before  appropriate  courts  of  law,  no  order  should  be  passed  which  would prejudice their cause.  In such a situation, we  are not prepared to make any observation only for  the  purpose  of  grant  of  some  relief  to  the  respondents to which they are not legally entitled to  so  as  to  deprive  others  therefrom  who  may  be  found to be entitled thereto by a court of law.”

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21) The Court also quoted following passage from the Halsbury's Laws of   

England (para 911, p.395):

“In determining whether there has been such delay as to  amount to laches, the chief points to be considered are:

(i)  acquiescence on the claimant's part; and

(ii)any change of position that has occurred on the  defendant's part.

Acquiescence in this sense does not mean standing by  while the violation of a right is in progress, but assent after  the violation has been completed and the claimant  has  become aware of it.   It  is unjust  to give the claimant a  remedy where, by his conduct, he has done that which  might fairly be regarded as equivalent to a waiver of it; or  where by his might fairly be regarded as equivalent to a  waiver of it; or where by his conduct and neglect, though  not waiving the remedy, he has put the other party in a  position in which it would not be reasonable to place him if  the  remedy  were  afterwards  to  be  asserted.   In  such  cases lapse of time and delay are most material.  Upon  these considerations rests the doctrine of laches.”

22) Holding  that  the  respondents  had  also  acquiesced  in  accepting  the  

retirements, the appeal of U.P. Jal Nigam was allowed with the following  

reasons:

“13.   In  view  of  the  statement  of  law  as  summarised  above, the respondents are guilty since the respondents  have acquiesced in accepting the retirement and did not  challenge  the  same in  time.   If  they  would  have  been  vigilant  enough,  they  could  have  filed  writ  petitions  as  others did in the matter.  Therefore, whenever it appears  that the claimants lost time or whiled it away and did not  rise to the occasion in time for filing the writ petitions, then  in such cases, the court should be very slow in granting

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the relief to the incumbent.  Secondly, it  has also to be  taken into consideration the question of acquiescence or  waiver on the part of the incumbent whether other parties  are going to be prejudiced if the relief is granted.  In the  present case, if the respondents would have challenged  their retirement being violative of the provisions of the Act,  perhaps the Nigam could have taken appropriate steps to  raise funds so as to meet the liability but by not asserting  their  rights  the  respondents  have allowed time to  pass  and after a lapse of couple of years, they have filed writ  petitions  claiming  the  benefit  for  two  years.   That  will  definitely require the Nigam to raise funds which is going  to have serious financial  repercussions on the financial  management of the Nigam.  Why should the court come  to the rescue of such persons when they themselves are  guilty of waiver and acquiescence?”

23) The legal  principles which emerge from the reading of  the aforesaid  

judgments, cited both by the appellants as well as the respondents, can  

be summed up as under:

(1) Normal rule is that when a particular set of employees is given relief by  

the Court, all other identically situated persons need to be treated alike  

by extending that benefit.  Not doing so would amount to discrimination  

and would be violative of Article 14 of the Constitution of India.  This  

principle needs to be applied in service matters more emphatically as  

the  service  jurisprudence  evolved  by  this  Court  from  time  to  time  

postulates that all similarly situated persons should be treated similarly.  

Therefore, the normal rule would be that merely because other similarly  

situated persons did not approach the Court earlier, they are not to be  

treated differently.

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(2)  However, this principle is subject to well recognized exceptions in the  

form of laches and delays as well  as acquiescence.  Those persons  

who did not challenge the wrongful action in their cases and acquiesced  

into the same and woke up after long delay only because of the reason  

that their  counterparts who had approached the Court earlier in time  

succeeded in their efforts, then such employees cannot claim that the  

benefit  of  the  judgment  rendered  in  the  case  of  similarly  situated  

persons be extended to them.  They would be treated as fence-sitters  

and  laches  and  delays,  and/or  the  acquiescence,  would  be  a  valid  

ground to dismiss their claim.

(3)   However,  this  exception  may  not  apply  in  those  cases  where  the  

judgment pronounced by the Court was judgment in rem with intention  

to give benefit to all similarly situated persons, whether they approached  

the Court or  not.   With such a pronouncement the obligation is cast  

upon the authorities to itself extend the benefit thereof to all  similarly  

situated person.  Such a situation can occur when the subject matter of  

the  decision  touches  upon  the  policy  matters,  like  scheme  of  

regularisation and the like (see K.C. Sharma & Ors. v. Union of India  

(supra).   On  the  other  hand,  if  the  judgment  of  the  Court  was  in  

personam holding that benefit of the said judgment shall accrue to the  

parties before the Court and such an intention is stated expressly in the  

judgment or it can be impliedly found out from the tenor and language of

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the judgment, those who want to get the benefit of the said judgment  

extended to them shall have to satisfy that their petition does not suffer  

from either laches and delays or acquiescence.   

24) Viewed from this angle, in the present case, we find that the selection  

process took place in the year 1986.  Appointment orders were issued in  

the  year  1987,  but  were  also  cancelled  vide  orders  dated  June 22,  

1987.  The respondents before us did not chalelnge these cancelleation  

orders till the year 1996, i.e. for a period of 9 years.  It means that they  

had accepted the cancellation of their appointments.  They woke up in  

the  year  1996  only  after  finding  that  some  other  persons  whose  

appointment orders were also cancelled got the relief.   By that time,  

nine years had passed.  The earlier judgment had granted the relief to  

the parties before the Court.  It would also be pertinent to highlight that  

these  respondents  have  not  joined  the  service  nor  working  like  the  

employees who succeeded in earlier case before the Tribunal.  As of  

today, 27 years have passed after the issuance of cancellation orders.  

Therefore, not only there was unexplained delay and laches in filing the  

claim petition after period of 9 years, it would be totally unjust to direct  

the appointment to give them the appointment as of today, i.e. after a  

period of 27 years when most of these respondents would be almost 50  

years of age or above.

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25) For all  the foregoing reasons, we allow the appeal and set aside the  

order of the High Court as well as that of the Tribunal.  There shall,   

however, be no order as to costs.

.............................................J. (J. CHELAMESWAR)

.............................................J. (A.K. SIKRI)

New Delhi; October 17, 2014.

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ITEM NO.1A              COURT NO.1               SECTION XI                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal NO....... of 2014 @ Petition(s) for Special Leave to  Appeal (C)  No(s).  18639/2012 STATE OF U.P.& ORS.                                Petitioner(s)                                 VERSUS ARVIND KUMAR SRIVASTAVA & ORS.                     Respondent(s) Date : 17/10/2014 The matter was called on for pronouncement of  

  Judgment today. For Appellant(s)      Mr.   P.N. Misra,Sr.Adv.                       Mr.   Abhisth Kumar,Adv.                       Mr.   Sudeep Kumar,Adv.                       Mr.   Som Raj Choudhury,Adv. For Respondent(s)     Mr. Praveen Swarup,Adv.                       Ms. Sushma Verma,Adv.                       Mr. R.K. Singh,Adv.                       Mr. S.R. Singh,Sr.Adv.                       Mr. Sushant K. Yadav,Adv.                       Mohd. Muztaba,Adv.                       For Ms. Namita Choudhary,Adv.                       Mr.   Puneet Jain,Adv.                       Ms.   Christi Jain,Adv.                       Ms.   Khushbu Jain,Adv.                       Ms.   Chhaya Kirti,Adv.                       For Ms.   Pratibha Jain,Adv.

Hon'ble Mr.Justice A.K.Sikri pronounced the Judgment of  the  Bench  comprising  Hon'ble  Mr.Justice  J.Chelameswar  and  His  Lordship.

Leave granted. Appeal is allowed  and  the order of the High Court as  

well  as  that  of  the  Tribunal  are  set  aside  with  a  further  direction that there shall, however, be no order as to costs, in  terms of the signed reportable judgment (G.V.Ramana) (Vinod Kulvi) Court Master Asstt.Registrar

(Signed reportable Judgment is placed on the file)