STATE OF UTTARANCHAL Vs SHIV CHARAN SINGH BHANDARI .
Bench: ANIL R. DAVE,DIPAK MISRA
Case number: C.A. No.-007328-007329 / 2013
Diary number: 9700 / 2012
Advocates: RACHANA SRIVASTAVA Vs
E. C. AGRAWALA
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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
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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
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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
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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,
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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
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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
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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
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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.’
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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
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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 another1, 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
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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. Sarkar2, 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
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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 another3, 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
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16. In State of Orissa v. Pyarimohan Samantaray4 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 Patnaik5.
17. In Bharat Sanchar Nigam Limited v. Ghanshyam
Dass (2) and others6, a three-Judge Bench of this
Court reiterated the principle stated in Jagdish Lal
v. State of Haryana7 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. Seshachalam8, 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
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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 another9.
20. In New Delhi Municipal Council v. Pan Singh
and others10, 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
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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 Nadu11, 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
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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
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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.
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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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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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