H.C.KULWANT SINGH Vs HC DAYA RAM .
Bench: ANIL R. DAVE,DIPAK MISRA
Case number: C.A. No.-005859-005859 / 2014
Diary number: 1244 / 2008
Advocates: ASHOK K. MAHAJAN Vs
S. JANANI
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5859 OF 2014 (Arising out of S.L.P. (C) No. 798 of 2008)
H.C. Kulwant Singh and others ... Appellants
Versus
H.C. Daya Ram and others ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. In this appeal, by special leave, apart from
interpreting the precise connotative effect of Punjab Police
Rules, 1934 (for short “the Rules”), specially Rule 13.7 of
the Rules that governs the promotion of the constables in
Chandigarh Police to the post of Head Constable, and the
amendments that were incorporated on 4.3.1982, and
another incarnation of the said amendments vide
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amendment dated 6.2.1988, we have also called upon to
decide whether the High Court by the impugned judgment
and order dated 18.12.2007 passed in Civil Writ Petition
No. 16550 of 1998 whereby the orders passed by the
Central Administrative Tribunal, Chandigarh Bench,
Chandigarh (for short “the tribunal”) dated 8.1.1990 and
23.9.1998 were assailed has redeemed the cause of
justice within the requisite parameters of law by
lancinating both the orders of the tribunal and further
issuing directions to recast the seniority list of Head
Constables on the foundation of seniority rules and not to
revert any Head Constable or the Assistant Sub-Inspector
with the rider that they shall avail further promotion solely
on the basis of their revised seniority warranting no
interference by this Court or has acted beyond the ambit
of jurisdiction in its appreciation and application of well
settled principles that would make the order pregnable
inviting its extinction.
3. The factual score needs to be depicted with
necessitous chronology. The appellants and respondent
Nos. 1 to 34 were recruited as Constables in Chandigarh
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Police by the Union Territory, Chandigarh and they are
governed by the Rules as applicable to the Union Territory
of Chandigarh. Rule 13.7 of the Rules which dealt with the
promotions to the posts of Head Constables from the
Constables prior to amendment of the Rule on 4.3.1982,
provided that the names of Police Constables for
admission to Lower School Course were required to be
entered in List ‘B’ in order of merit determined by the
Departmental Promotion Committee on the basis of test
scheme in (i) Parade (ii) written test in general law and (iii)
examination of service record. After the amendment of
the said Rule a batch of confirmed Constables were sent
for Lower School Course at Police Training College,
Phillaur. The said course was for six months and it was
held twice a year – one commencing in April and the other
in October. A batch of fifteen Constables duly selected on
the basis of the amended Rules was sent for Lower School
Course in April, 1988. Thereafter vide notification dated
17.6.1988 the Rule 13.7 was amended by Punjab Police
(Chandigarh Amendment) Rules, 1988 which came into
force on the date of publication in the Chandigarh
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Administration Gazette. After the Rule was amended, the
Senior Superintendent of Police, Chandigarh
Administration issued a letter dated 27.6.1988 to the
effect that a test would be held some time in September,
1988 as laid down in the amended Rules.
4. Being aggrieved by the said order Achhar Chand
and 24 others filed O.A. No. 510-CH/88 before the tribunal
challenging the validity of the said order. It was
contended before the tribunal that as they were confirmed
Constables, they had acquired a valuable right to be
considered for admission to the Lower School Course in
accordance with the pre-amended Rules, i.e., the rules
that existed between 4.3.1982 and 17.6.1988. The said
submission was resisted by the Union of India and its
functionaries asserting, inter alia, the amended Rule 13.7
having come into force the Department was entitled to go
ahead with the selection as envisaged under the Rules.
The tribunal, while narrating the facts, observed that, as
conceded, 71 posts of Head Constables were created and
sanctioned from which date the amended Rule came into
force, and as against 71 posts, 15 Constables were sent
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for the course started in April, 1988 and the remaining 56
posts were yet to be filled up. It also took note of the fact
that in the next course beginning October, 1988 the
Chandigarh Administration had been allotted 50 seats for
the Lower School Course.
5. Taking stock of the factual position, the tribunal
opined that all the confirmed Constables, including the
applicants before it, serving under Union Territory
Chandigarh became eligible for consideration for
promotion to the posts of Head Constables on the basis of
unamended Rule 13.7 and the question of Head
Constables being appointed in accordance with the
amended Rule 13.7 could arise only thereafter. The
tribunal placed reliance on the decision in Y.V. Rangaiah
and others v. J. Sreenivasa Rao & ors.1 and P.
Ganeshwar Rao and others v. State of Andhra
Pradesh and others2 and the decision of the Principal
Bench of the tribunal in Om Parkash v. Delhi
Administration and others3 and, accordingly quashed
1
AIR 1983 SC 852 2 1988 (Supp) SCC 740 3 1988 (2) AISJ 133
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the order dated 27.6.1988 and directed the authorities to
drop the proposed examination and prepare a fresh list for
sending Constables to the Lower School Course at Police
Training College, Phillaur in accordance with the pre-
amended Rue 13.7 i.e. the rule as it existed prior to
17.6.1988 so far as the vacancies of Head Constables
which had come into existence prior to the date of
amended notification. The tribunal further directed that
the criterion to be adopted by them would be seniority-
cum-merit as laid down therein, however, it would be open
to the administration to act in accordance with the
amended Rule in respect of the vacancies/posts of Head
Constables which may have occurred subsequent to the
coming into force of the amended Rule or which may fall
vacant thereafter.
6. The competent authorities of Union Territory
identified those vacancies of Head Constables which had
occurred prior to the amendment dated 17.6.1988 and by
that process 56 vacancies were found to have occurred
before the amendment and accordingly 56 Constables
were brought on List ‘B’ in order of seniority as per
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provisions of unamended Rule 13.7 and other formalities
were carried out.
7. Thereafter, as the facts would undrape, on
28.10.1988 a list of eligible Constables/ad hoc Head
Constables who fulfilled the prescribed conditions to sit in
the competitive examination to be held in January, 1989
was circulated. On 25.1.1989 a circular was issued to all
the units regarding the competitive test to be held on
11.2.1989. In the meantime, three Original Applications,
i.e., O.A. Nos. 697/CH/88, 872/CH/88 and 137/CH/89 were
filed before the tribunal challenging the validity of the
amended rules and with ancillary prayers which included
quashing of orders dated 28.10.1988 whereby the list was
drawn of the eligible Constables to participate in B-1 test,
and dated 25.1.1989 regarding conduct of B-1 test. The
tribunal on 31.3.1989 dealt with the interim prayer and
directed as follows: -
“Regarding interim relief we are of the view that in case the selection of the Head Constable is stayed, the applicants are not likely to gain any thing thereby. On the other hand, the Administration may suffer due to the shortage of the Head Constables and the balance of convenience is that the Chandigarh
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Administration should be allowed to complete the selection of the Head Constables, as already notified by them. But the validity of this selection shall be subject to the final decision of these cases. This will sufficiently safe guard the interests of the applicants and no absolute stay order is called for in these cases. While modifying our earlier interim orders in these cases, we order that the selection of the Head Constables may be made and given effect to, subject to the final decision of these cases.”
8. In pursuance of the aforesaid interim order, out of
total 48 constables declared qualified in the B-1 test seven
Constables earlier brought on List ‘B’ on 5.10.1988 and
2.2.1989 in pursuance of unamended PPR 13.7 and 41
Constables declared qualified in the B-1 Test in pursuance
of amended Rule brought on List ‘B’ on 19.4.1989; 20
Constables (7 Constable in pursuance of unamended rule
and first 13 Constables out of 41 Constables in pursuance
of amended Rule) were deputed for Lower School Course
vide order dated 21.4.1989 as only 20 seats were allotted
to the PPA Phillaur for the session commencing April,
1989. Thereafter, the eligible and qualified Constables
were granted List ‘C’ and regular promotion to the rank of
Head Constables as per the provisions of Rule 13.8(2) of
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the Rules. The rest 28 Constables were deputed for Lower
School Course vide order 4.10.1989.
9. The tribunal took note of the earlier amendment
dated 4.2.1982 and the amended Rule on 17.6.1988 which
was under assail and came to hold that the administrator
of Union Territory of Chandigarh was competent to issue
the impugned notification dated 17.6.1988 incorporating
the amendment in the Rule as applicable to Union
Territory of Chandigarh and, accordingly, opined that the
Rule did not suffer from any kind of infirmity. After so
holding the tribunal proceeded to deal with the Rule
position as engrafted in Rule 13 in entirety and came to
hold that the process of election for promotion of a
Constable to the rank of Head Constable started at the
time of selection for the Course under Rule 13.7 of the
Rules of 1934 and that every Constable had the right to be
sent for the promotional course at the Police Training
College, Phillaur in order of his seniority determined in
accordance with that Rule.
10. Thereafter, the tribunal addressed itself to the
question whether by the impugned amendment of Rule
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13.7 of Rules of 1934, on 17.6.1988 the applicants therein
would have been deprived of the right to be sent for the
Lower School Course. It was contended by the applicants
therein that the impugned amendment had altogether
deprived them of their right to be sent for promotion
course to enable them to be considered for promotion to
the post of Head Constable in accordance with the
criterion prescribed by the unamended Rule. The said
submission was resisted by the Union of India contending,
inter alia, the right of a Government servant was only to
be considered for promotion and that is a condition of
service but curtailment of chances of promotion by
change of Rule are not conditions of service and the same
could be changed to the disadvantage of a Government
servant. The tribunal observed that there was no cavil
over the proposition of law but proceeded to deal with the
issue whether the applicants therein had any vested right
under the pre-amended Rule as confirmed Constables and
whether they had been deprived of the said vested right
and came to hold that in case the selection of the
applicants was allowed to be made for the promotional
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course on the basis of the criterion provided in the Rule
13.7 as amended by notification dated 17.6.88, it would
certainly divest the applicants of their right to be selected
on the basis of confirmation and seniority which right had
become an accrued right in them under the pre-amended
Rule and as such the Rules would have retrospective
operation contrary to the intention of the Rule making
authority.
11. Be it noted, both sides placed reliance on Acchhar
Chand’s case and the tribunal understood that decision to
the effect that in the said case it was held that all the
confirmed constables had become eligible for promotion
on the basis of the unamended Rule 13.7 and accordingly
directed that the selection of the Constables for the
promotional course who were already in service before the
amendment of 1988 would be made in accordance with
the criteria postulated in the pre-amended Rule as
contained in the notification dated 4.3.1982 and,
accordingly, it so directed. It was also clarified that those
Constables who had already successfully undergone the
Lower School Course training even on the basis of the
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amended Rule 13.7, would not be required to undergo the
same training again.
12. Pursuant to the aforesaid order, as is evincible, 28
constables were brought on List ‘B’ in accordance with the
amended Rule and deputed for Lower School Course in
October, 1989 having qualified were promoted as
officiating Head Constables on 8.6.1990.
13. At this juncture, it is seemly to state that OA No.
1401/CH of 1990 was filed by the appellants herein before
the tribunal for quashing of the order dated 28.12.1989
seeking direction to the respondents to place the private
respondents in List ‘C’ in the context of their seniority.
14. In course of adjudication, the tribunal referred to
the initial rule position, the amended rules, the decision
rendered in OA No. 510/CH/ 88-89 on 28.9.1988, the
interim order passed on 31.3.1989 in O.A. No. 137/CH/89
and other connected OAs, the order dated 19.4.1989
sending the candidates therein for training which was
subject to the final judgment, the final decision rendered
by the tribunal on 9.1.1990 wherein the tribunal had
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opined that the Constables who were in service prior to
17.6.1988 would be governed by the unamended rules
which prescribed seniority-cum-fitness, unlike the
amended Rules which prescribed the selection by a test
with the further concession that the Constables who had
been sent for training under the interim order on the basis
of the written test, irrespective of seniority, would not be
required to undergo the same training again. After so
narrating, the tribunal adverted to the orders of the
Department whereby how the Constables were sent for
training on the basis of written test, brought on list ‘C’
and, eventually, stood promoted as Head Constables. The
tribunal took note of the fact that by virtue of the same
the Constables were promoted as Head Constables before
their seniors who were subsequently sent for training.
That apart, the tribunal also apprised itself of the fact that
the matter was carried to this Court and it was dismissed
as infructuous as seniors had also been sent for training
under the unamended Rule 13.7. After stating the facts,
the tribunal held that the persons promoted to Head
Constables who were sent for training on the basis of the
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written examination, irrespective of seniority, under the
interim order dated 31.3.1989 and keeping in view its
order whereby it had been laid down that Constables in
service prior to 17.6.1988 had a vested right to be sent for
training for promotion to Head Constables on the basis of
the unamended Rules i.e. seniority-cum-fitness and hence,
the claim of the applicants was justified and the
respondents who are their juniors cannot steal a march
over them on promotion as Head Constables. Being of the
said view, it set aside the order dated 28.12.1989 and
directed the respondents to re-arrange the seniority list of
the applicants and the respondents according to their
basic seniority in the rank of Constables.
15. Being aggrieved by the said judgment and order
dated 23.9.1998, the present respondents preferred CWP
No. 1650 of 1998. While challenging the said order they
also called in question the justifiability of the order dated
8.1.1990. The High Court referred to the order of the
tribunal in OA No. 137/CH/89, the interim order dated
19.4.1989, the order passed by this Court on 29.1.1996
and the challenge to the order dated 18.12.1989 whereby
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the Constables were sent for training on the basis of
written test, irrespective of seniority and order dated
28.12.1989 by which they were promoted as Head
Constables which was set aside by the tribunal in view of
order dated 23.9.1998 placing reliance on the decision
dated 8.1.1990 in OA No. 137/CH/89 (Mewa Singh and
others v. Chandigarh Administration) wherein it was held
that the pre-amended Rule would be applicable to all the
Constables before the amendment of 1988, took note of
the contention that only the vacancies which came into
existence from 1.3.1982 to 17.6.1988 were required to be
filed up on the basis of seniority rule irrespective of the
date of appointment of the Constables and appreciated
the stance that the tribunal had erred in appreciating the
earlier order passed in Acchhar Chand’s case inasmuch
as vide order passed on 23.9.1988 a categorical finding
had been recorded that the vacancies which arose after
the amendment of the Rule on 4.3.1982 were required to
be filled up on the basis of amendment carried out in the
year 1982 and, therefore, the vacancies arising between
the interregnum period, i.e. 4.3.1982 to 17.6.1988 alone,
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the Constables were required to be sent for Lower School
Course on the basis of seniority Rule and for all other
posts the test, i.e., sitting in the written test, would apply.
It also took note of the stand that neither the petitioners
nor any Constable from their category was impleaded as a
respondent in the subsequent original application. On
behalf of the respondents the application was resisted on
the ground that the writ petition was hit by doctrine of
delay and laches; that the petitioners were aware of the
pendency of the case before the tribunal as they were
sent to Lower School Course subject to the final decision
of the tribunal; that such application was allowed by the
tribunal on 8.1.1990 which was being sought to be
challenged after lapse of eight years.
16. The High Court repelled the contention relating to
delay and laches on the ground that the special leave
petition was dismissed as infructuous only in the year
1996 and that it was dismissed as infructuous as both the
categories of employees had undergone Lower School
Course and this Court had left the question of law open for
consideration in appropriate case; and that the ultimate
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order dated 23.9.1998 affected the petitioners therein
and, therefore, the principle of delay and laches would not
frustrate the lis. Adverting to the merits, the High Court
dealt with the additional affidavit filed by the Senior
Superintendent of Police which had asserted that 22
vacancies in the rank of Head Constables had arisen on
4.3.1982 when the Rule for bringing the Constables on List
‘B’ as per seniority Rule was introduced; that on the date
of amendment on 17.6.1988 there were 56 vacancies;
that the tribunal had recorded on 28.9.1988 that 71 posts
were created and out of 71, 15 Constables were sent in
April, 1988 and another 50 were sent in December, 1988
and, therefore, only six Constables could be sent for Lower
School Course on the basis of seniority Rule; and that all
other vacancies were required to be filled on the basis of
test Rule incorporated vide amendment in Rule 13.7 of the
Rules on 17.6.1988. The Court thereafter referred to the
decision in Y.V. Rangaiah (supra) and held thus: -
“The finding recorded by the Tribunal in its order dated 8.1.1990 that on being confirmed as Constable, they have acquired a valuable right to be considered for admission List ‘B’ and Lower School Course, cannot be sustained in law. No employee can claim right to promotion
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as per Rule existed on the date of appointment or confirmation. As per principle laid down in Y.V. Rangaiah’s case (supra), right has been recognized for consideration for promotion as per Rule applicable on the date of availability of vacancies/posts. Therefore, the finding recorded that all the Constables before the amendment on 17.06.1988 would be sent for course in accordance with the seniority criterion is wholly illegal, unjustified and untenable. The said finding, in fact, runs counter to the judgment in Y.V. Rangaiah’s case (supra) as well as to the order passed by the Tribunal on 28.09.1988. The order of the Tribunal passed on 23.09.1998 take same view as in Mewa Singh’s case (supra). The same suffers from same infirmity. It is only the vacancies which arose between 4.3.1982 to 16.06.1988 i.e. 71 vacancies which will govern the Seniority Rule. For all other posts/vacancies, it is the Test Rule alone on the basis of which the candidates can be sent for the course.”
17. On the aforesaid basis the High Court quashed the
orders dated 23.9.1998 and 8.1.1990 and after so stating
the High Court, noticing the existing scenario, passed a
protective order to the effect that the Administration shall
finalise the seniority of Head Constables on the basis of
Seniority Rule in respect of 71 Constables, but as a result
of finalization of the seniority in accordance with the
Rules, the respondents shall not revert any Head
Constable or Assistant Sub Inspector. Such Head
Constable or Assistant Sub Inspector shall continue to
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discharge his/her duties but shall avail further promotion
only on the basis of his/her turn as per revised seniority.
18. We have heard Mr. P.S. Patwalia, learned senior
counsel for the appellants, Mr. Nidhesh Gupta, learned
senior counsel for respondents 1 to 34 and Mr. Gaurav M.
Librehan, along with Ms. Mukti Chowdhary, learned
counsel for respondents 36 to 38.
19. Criticising the judgment and order passed by the
High Court Mr. Patwalia has raised the following
contentions: -
(A) There is manifest legal infirmity in the order
inasmuch as the High Court has entertained the writ
petition assailing the order dater 8.1.990 which could
not have been challenged before the High Court as it
was rendered prior to the decision in L. Chandra
Kumar v. Union of India and others4.
(B) The order of the tribunal dated 23.9.1998 being
founded on directions given on 8.1.1990 could not
have been found fault with by the High Court. That
4 (1997) 3 SCC 261
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apart the respondents slept over the rights, if any, by
not assailing the order dated 8.1.1990 for a period of
eight years and, therefore, the principle of delay and
laches gets squarely attracted and the acceptance of
the explanation by the writ petitioners is totally
faulty.
(C) The rule position prior to the first amendment,
i.e., 4.3.1982 was initially explained on 17.6.1988
and was further explained on 8.1.1990 and,
therefore, the decisions rendered by the tribunal
being impeccable did not warrant any interference
but the High Court on an erroneous understanding of
the rule position and its impact has quashed the
order dated 8.1.1990 making its own order
sensitively susceptible.
(D) The plea of impleadment which has been
assiduously sought to be built does not remotely
commends acceptation inasmuch as the respondents
were not only aware of the pending litigation but
also, more importantly, their obtaining of training and
availing of the consequent benefits following from
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the said training were subject to the final decision of
the original application.
20. Mr. Gupta, learned senior counsel appearing for
the affected respondents, in oppugnation, has canvassed
as follows: -
(a) It is the settled legal position that the
vacancies occurring during the period 4.3.1982 till
17.6.1988 are to be governed by the amended rule
that came into force on 4.3.1982 and the vacancies
occurring after 17.6.1988 amendment, are to be
governed by the Rule as amended by the notification
dated 17.6.1988. The said proposition of law is well
established as per the decisions in Y.V. Rangaiah
(supra), P. Ganeshwar Rao (supra), State of
Rajasthan v. R. Dayal and others5, B.L. Gupta
and Anr. v. MCD6 and Arjun Singh Rathore and
Ors. v. B.N. Chaturvedi and Ors.7.
(b) The initial decision of the tribunal
rendered on 17.6.1988 is in accord with the
5 (1997) 10 SCC 419 6 (1998) 9 SCC 223 7 (2007) 11 SCC 605
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principles laid down by this Court, for it has been
held therein that insofar as vacancies of Head
Constables which had come into existences prior to
the notification dated 17.6.1988 were concerned, the
same would be governed by the Rule as it existed
prior to 17.6.1988 and it was open to the respondent-
employer to act in accordance with the amended
Rule in respect of the vacancies which occurred
subsequent to the amendment of the Rule. Despite
the said clear decision in the field, the tribunal vide
order dated 8.1.1990 opined that the confirmed
Constables prior to the amendment dated 17.6.1988
had a vested right for being selected for a
promotional course in accordance with the pre-
amended Rule which did not prescribe for a test and
that makes the order expressly illegal, null and void
and cannot be utilized against the present
respondents who were not impleaded as parties to
the lis before the tribunal. Once there is violation of
principles of natural justice, the order was not
binding on the respondents and is, in fact, a void
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order. The said submission is supported by the
authorities in A.M.S. Sushanth & Ors. v. M.
Sujatha and Ors.8, M.V. Ravindranath & Ors. v.
Union of India & Ors.9, State of Assam v. Union
of India & Ors.10 and Public Service Commission,
Uttaranchal v. Mamta Bisht & Ors.11.
(c) The submission of the appellants that the
respondents were aware of the pendency of OAs
before the tribunal inasmuch as in the letter of
appointment itself it was mentioned that their
appointments were subject to the decision in Original
Application and they had accepted the appointment
letters, is without any substance, for the effect of
non-impleadment of necessary parties is not altered
by their being aware of pending litigation. The said
proposition defeats the basic rule that the onus of
impleading the necessary parties is on the appellants
and solely because the appointment order was
subject to the decision of the tribunal would not
8 (2000) 10 SCC 197 9 (2000) 10 SCC 474 10 (2010) 10 SCC 408 11 (2010) 12 SCC 204
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reflect the mandate of requirement of law. Quite
apart from that, when by virtue of the interim order
passed by the tribunal they were promoted, they
became necessary parties to be impleaded and
nothing else could justify their non-impleadment.
The said assertion of law is buttressed by the
pronouncements in K.R.C.S. Balakrishna Chetty &
Sons & Co. v. State of Madras12, Union of India
& Ors. v. Brigadier P.S. Gill13, Khetrabasi Biswal
v. Ajaya Kumar Baral & Ors.14 and Shiv Kumar
Tiwari (Dead) by LRs. v. Jagat Narain Rai &
Ors.15.
(d) By the time the judgment dated 8.1.1990
was pronounced, all the respondents were sent for
Lower School Course and because of that position
they ought to have been treated as affected parties
and should have been arrayed as contesting
respondents. The principle of “ultimately affected
party” is squarely applicable to such a situation and
12 1961 (2) SCR 736 13 (2012) 4 SCC 463 14 (2004) 1 SCC 317 15 (2001) 10 SCC 11
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the said principle gets support from State of
Himachal Pradesh & Anr. v. Kailash Chand
Mahajan & Ors.16.
(e) The tribunal was approached by the
present appellants in OA No. 1401/CH/1990 as the
answering respondents were brought on List ‘C’ after
clearing the test contemplated under Rule 13.8(2) of
the Rules for implementation of the judgment dated
8.1.1990 which suffered from series of legal
infirmities and hence, the said decision could not
have been applied to those who were not parties to it
and, more so, when this Court, while dealing with the
special leave petition, had left the question of law
open; and as the same has arisen at present, this
Court should exercise the power under Articles 136
and 142 of the Constitution to deal with the same.
For the aforesaid purpose, inspiration is drawn from
the authorities in State of Bihar and Ors. v.
Kameshwar Prasad Singh & Ors.17 and Jamshed
16 1992 Supp (2) SCC 351 17 (2000) 9 SCC 94
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Hormusji Wadia v. Board of Trustees, Port of
Mumbai & Anr.18.
(f) As far as promotion to the Head
Constables is concerned, it is governed by Rule 13.8
and perusal of Rule 13.8(2) makes it clear that
promotions to the post of Head Constables are made
subject to the principle described in sub-rules (1) and
(2) of Rule 13.1 which provide that promotions from
one rank to another shall be made by selection. The
respondents were more meritorious than the
appellants as they were selected in the competitive
test and were deputed to the Lower School Course
and they had obtained the higher marks than the
appellants. Quite apart from that they have been
promoted to Assistant Sub-Inspectors, Sub-Inspectors
and further as Inspectors and, therefore, serious
prejudice would be caused to the respondents by
unsettling the position. The order dated 8.1.1990, as
contended by the appellants, could not have been
challenged by virtue of the decision in L. Chandra
18 (2004) 3 SCC 214
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Kumar (supra), but as the judgment is a nullity, it
could have been left unchallenged and perceived
from that angle, the High Court in exercise of its
jurisdiction under Articles 226 and 227 of the
Constitution has rightly quashed the order dated
23.9.1998, which is based on the principle stated in
K. Ajit Babu and Ors. v. Union of India and
Ors.19 and Rama Rao & Ors. v. M.G. Maheshwara
Rao & Ors.20.
21. Mr. Gaurav M. Librehan, learned counsel on behalf
of respondents 36 to 38, the official respondents, has filed
a written note of submissions stating the chronology of
events and, eventually indicated that while the matter was
pending before the tribunal, regular promotion was
granted on 28.12.1989 to the Constables deputed for
Lower School Course in order of merit achieved in the
course as per provisions of Rule 13.8 but thereafter, no
Constable has been granted List ‘C’ nor regular promotion
as Head Constable as the matter was sub-judice before
the High Court. It is asserted that in compliance with the
19 (1997) 6 SCC 473 20 (2007) 14 SCC 54
2
Page 28
order dated 18.12.2007 the appellants as well as private
respondents have been granted List ‘C’ and regular
promotion as Head Constables by order dated 1.2.2008 in
order of merit achieved by them in the course held as per
the provisions of Rule 13.8 subject to outcome of the
special leave petition.
22. Before we advert to the rivalized submissions
raised at the Bar it is requisite to advert to the rule
position. Indisputably the matters relating to promotion of
Constables to the rank of Head Constables are governed
under Punjab Police Rules, 1934, when the Union Territory
of Chandigarh came into existence on 1.11.1966. Rule
13.7 which deals with the bringing of Constables on List
‘B’ and their further deputation to the Lower School
Course initially read as follows: -
“13.7. List ‘B’. Selection for admission to promotion Course for Constables at the Police Training College. – (1) List ‘B’ in From 13.7 shall be maintained by each Superintendent of Police. It will include the names of all Constables selected for admission to the Promotion Course for Constables at the Police Training College. Selection will be made in the month of January, each year and will be limited to the number of seats allotted to districts for the year with a twenty per cent
2
Page 29
reserve. Names will be entered in the list in order of merit determined by the Departmental Promotion Committee constituted by the Inspector-General of Police on the basis of tests in parade, general law (Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Local and Special Laws) interview and examination of records.
(2) All Constables --
(a) who are middle pass and have put in more than four years of service;
(b) who are at least matriculates and have put in more than three years of service; or
(c) who obtain first class with credit in the Recruits Course specified in rule 19.2; will be eligible to have their names entered in the aforesaid list, if they are not above thirty years of age on the first day of July in the year in which the selection is made;
Provided that no Constable who has been awarded a major punishment within a period of three years preceding the first day of January of the year in which selection is made will be eligible for admission to this lists and if any Constable whose name has been brought on this list is not sent to the Police Training College in that year he will be required to compete again with the new candidates, if he is still eligible for admission to the said list under the rules.
(3) Temporary Constables brought on List ‘B’ shall be absorbed in the regular establishment in preference to others.
(4) No Constable who has failed to qualify in the promotion course for Constables shall be readmitted to List ‘B’, unless the Principal,
2
Page 30
Police Training College, for the reasons to be recorded in writing considers him deserving of another chance and he is still eligible. The reasons are to be communicated to the Superintendent of Police concerned.”
23. From the aforesaid rule it is clear as day that the
test was a criteria for bringing Constable to depute them
for Lower School Course. Rule 13.8 of the Rules provided
for promotion to Head Constables. The said Rule read as
follows: -
“13.8. List C. Promotion to Head Constables. – (1) In each district a list shall be maintained in card index form (form 13.8(1) of all constables who have passed the Lower School Course at Phillaur and are considered eligible for promotion to Head Constable. A card shall be prepared for each constable admitted to the list and shall contain his marking under sub-rule 13.5(2) and notes by the Superintendent himself, or furnished by Gazetted Officer under whom the Constable has worked, on his qualifications and character. The list shall be kept confidentially by the Superintendent and shall be scrutinized and approved by the Deputy Inspector-General of Police at his annual inspection.
(2) Promotion to Head Constable shall be made in accordance with the principle described in sub-rules 13.1(1) and (2). The date of admission to List C shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comprising qualifications. In cases where other qualifications are equal, seniority in the police
3
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force shall be the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy Inspector- General, be promoted to Head Constable up to a maximum of ten per cent of vacancies.”
24. On 4.3.1982 Rule 13.7 was amended and the
amended Rule provided that there shall be no test for
constables and their admission to the promotional course,
i.e., Lower School Course would be done on the basis of
seniority-cum-merit. The notification amending the Rule
reads as follows:-
“No. 16628-HII(I)-82/5105 dated 4th March, 1982; In exercise of the powers conferred by sub-section (2) of Section 46 of the Police Act, 1861, the Chief Commissioner, Chandigarh, is pleased to made the following amendments in the Punjab Police Rules, 1934, as applicable to the Union Territory of Chandigarh: -
In the Punjab Police Rules, 1934, Volume II, for Rule 13.7, the following shall be substituted, namely: -
13.7.
List B. Selection for Admission to promotion course for constables at the Police
(1) List B (in Form 13.7) shall be maintained by Superintendent of Police. It will include the names of constables considered suitable as
3
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Training College. candidates for admission to the promotion course at the Police Training College.
Selection shall be made as far as possible in the month of January each year. The number of constables to be deputed for the promotion course for constables will depend upon the availability of vacancies.
2. There shall be no test for Constables for admission to the promotion course and the constables shall be sent for Lower School Course strictly on the basis of Seniority-cum- Merit (record). The qualifications for sending a constable for the course shall be as under: -
(i) He must be a confirmed constable:
Provided that if no permanent constable fit for deputing for the course is available the “Senior Most” temporary constables fulfilling all other conditions can be considered for the said course.
(ii) He should have put in more than 3 years of service, if he is a matriculate, 4 years of service if he is a middle pass.
(iii) Seniority shall only be tampered if the record of a constable is really bad and is not found suitable on merit:
Provided that no constable who has been awarded a major punishment within a period of 3 year preceding the first day of January of the year in which selection is made will be eligible for admission to List “B”.
A constable who has failed to qualify in the promotion course for constable shall not admitted to list ‘B’ unless the Principal, Police
3
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Training College, for the reasons to be recorded in writing considers him suitable for another chance the reasons are to be communicated to the Superintendent of Police concerned.”
25. As the factual matrix would further unfurl, by
notification dated 17.6.1988 Rule 13.7 was amended
providing that Constables would be selected for admission
to the promotional course, i.e., Lower School Course on
the basis of the test, i.e., merit-cum-seniority and their
names would be entered in the list prepared for admission
to such course in order of merit determined by the
Departmental Promotion Committee. The notification
incorporating the amendment reads as follows: -
“No. 1/13/2/88-HII (1) 13676 dated 17.6.1988 (.) in exercise of the powers conferred by sub- section (1) and (2) of section 46 of the Police Act, 1861, the Administrator (UT) Chandigarh, is pleased to make the following rules further to amend the Punjab Police Rules 1934, as applicable to the Union Territory of Chandigarh namely: -
In the Punjab Police Rules 1934 Volume-II, for Rule 13.7, the following shall be substituted, namely: -
1. These rules may be called the Punjab Police (Chandigarh Amendment) Rules, 1988.
2. These shall come into the force on the date of their publication in the Chandigarh Administration Gazette.
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3. In the Punjab Police Rules 1934 (hereinafter referred to as the said Rules) for rule 13.7 the following shall be substituted, namely: -
13.7 (1) List B. Selection for Admission to promotion course for constables at the Police Training College.
(1) List-‘B’ (in Form 13.7) shall be maintained by Superintendent of Police. It will include the names of all constables selected for admission to the promotion course for candidates at the Police Training College.
Selection shall be made in the month of January each year and will be limited to the number of seats available for the year with a 20 per cent reserve. Names will be entered in the list in order of merit determined by the Departmental Promotion Committee constituted by the Inspector General of Police on the basis of test in parade, general law, (Indian Penal Code, Criminal Procedure Code and Police Rules), interview and examination of records: -
(2) All candidates who are directly recruited in the U.T. Police and
(a) Who are middle pass and have put in more than four years of service; or
(b) Who are at least matriculates and have put in more than three years of service; or
(c) Who obtain first Class with credit in the Recruits Course specified in rule 19.2 will be eligible to have their names entered on the aforesaid list.
Provided that no Constable who has been awarded a major punishment within a period of
3
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three years preceding the first day of January of the year in which selection is made will be eligible for admission to this list and if any Constable whose name has been brought on the list is not sent to the Police Training College in that year he will be required to compete again with the new candidates, if he is still eligible for admission to the said list under the rules.
(3) Temporary Constables brought on list ‘B’ shall be absorbed in the regular establishment in preference to others.
(4) No Constable who has failed to qualify in the promotion course for Constables shall be re- admitted to list ‘B’ unless the Principal Police Training College for the reasons to be recorded in writing considers him deserving of another chance and he is still eligible. The reasons are to be communicated to the Senior Superintendent of Police.”
26. Having reproduced the Rules it is necessary to
understand what it meant at the pre-amendment stage
prior to 4.3.1982 and the amendment thereafter and
further the change by incorporation of the amendment on
17.6.1988. The original Rule 13.7 dealt with selection for
admission to promotion course for Constables in the Police
Training College and it was called List ‘B’. It prescribed
that the names should be entered in the list in order of
merit determined by the Departmental Promotion
Committee on the basis of certain tests. All the
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Page 36
Constables, subject to certain eligibility, were entitled to
have their names entered in the List ‘B’. This can be
appropriately called “The test rule”. Rule 13.8, as it
seems to us, provides promotion to Head Constables. It is
called List ‘C’. To acquire the eligibility for consideration
for promotion to Head Constable, a Constable is required
to pass the Lower School Course at Phillaur. The
procedure for promotion has to be made in accordance
with the principle prescribed in sub-rules (1) and (2) of
Rule 13.1 with the stipulation that date of admission to
List ‘C’ would not be material but the order of merit in
which examination had been passed would be taken into
consideration in comprising qualifications. It further
prescribes that in cases where other qualifications are
equal, seniority in the police force would be the deciding
factor.
27. After the amendment on 4.3.1982, the test was
done away with and it was provided that List ‘B’ would be
maintained by Superintendent of Police which would
include the names of constables considered suitable as
candidates for admission to the promotion course at the
3
Page 37
Police Training College. It categorically postulated that
there shall be no test for the Constables for admission to
the promotion course and the Constables having sent for
Lower School Course strictly on the basis of seniority-cum-
merit (record). Certain eligibility criteria was provided for
certain Constables for the course and they included that a
Constable must be confirmed in service and in case of
non-availability of confirmed constables consideration of
certain senior most temporary Constables fulfilling all
other conditions; that he should have put in more than
three years service if he is a matriculate, four years
service if he a middle pass and certain other conditions.
This rule may, for the sake of convenience, be called
“seniority rule”. After the amendment on 17.6.1988 the
earlier Rule was restored.
28. In the case at hand, we are really concerned with
the interregnum period between 4.3.1982 and 17.6.1988.
The tribunal, on the first occasion, while quashing the
order dated 27.6.1988 which was a resultant order after
the amendment dated 17.6.1988, had clearly laid down
that the authorities were required to prepare a fresh list
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Page 38
for sending the Constables to the Lower School Course in
accordance with the pre-amended Rule 13.7 as it existed
prior to 17.6.1988 so far as the vacancies of Head
Constables which had come into existence prior to the
date of aforesaid notification and the criterion to be
adopted by them could be seniority-cum-merit as
prescribed therein. It was also unequivocally ruled that it
would be open to the respondents to act in accordance
with the amended Rule in respect of vacancies/posts of
Head Constables which might have occurred subsequent
to coming into force of the amended Rule or which may
fall vacant thereafter. To arrive at the said conclusion, as
stated earlier, reliance was placed on Y.V. Rangaiah
(supra) wherein, in the factual matrix therein, it has been
ruled by this Court that the vacancies had occurred prior
to the amended rules would be governed by the old rules
and not by the amended rules and the Court further
reiterated that it did not have the slightest doubt that the
posts which fell vacant prior to the amended rules would
be governed by the old rules and not by the new rules.
3
Page 39
29. Thus, the decision of the tribunal, on the first
round, related to the vacancies of Head Constables that
had come into existence prior to the date of notification,
i.e., 17.6.1988. Learned counsel for the Union Territory of
Chandigarh in his written note of submissions has stated
that 50 vacancies were found to have occurred before
amendment and, accordingly, a list was prepared in order
of seniority as per the provisions of unamended rules. At
this point of time, it is necessary to clear the maze that as
far as this exercise is concerned there was no cavil. The
dispute arose when the authorities on 28.10.1988
prepared a list of eligible Constables/ad hoc Head
Constables who fulfilled the prescribed conditions to sit in
the competitive examination to be held in January, 1989.
The said action of the authorities compelled the present
applicants to file three Original Applications challenging
the validity of the Rule and quashment of the order dated
28.10.1988 whereby the list was drawn up of the eligible
candidates. As has been stated hereinbefore, the tribunal
on 31.3.1989 modified its original interim order and
directed that selection of the Head Constables may be
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Page 40
made and given effect to subject to final decision of those
Original Applications. The tribunal had also observed that
the validity of the selection would be subject to final
decision of the case. After the tribunal passed the
aforesaid interim order, the authorities conducted the test
as per the amended rule which had come into force with
effect from 17.6.1988 and made selections and appointed
successful candidates as Head Constables on the basis of
merit. The tribunal noted the rival submissions which we
have adverted to earlier, and opined that the applicants in
the Original Applications had a vested right under the pre-
amended Rule as confirmed Constables and they had
been deprived of the said vested right. Elaborating further
the tribunal opined that: -
“In case the selection of the applicants is allowed to be made for the promotional course on the basis of the criterion now provided in the Rule 13.7 as amended by notification dated 17.6.88, this will certainly divest the applicants of their right to be selected on the basis of confirmation and seniority which right had vested in them under the pre-amended Rule. In other words, it may amount to give retrospective effect to the impugned amendment of 17.6.88 which was never the intention of the authority introducing the amendment through the impugned notification.”
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Page 41
30. It is interesting to note that counsel for both the
sides before the tribunal placed reliance on Achhar
Chand’s case and the tribunal understood the said
decision in a different manner and opined that: -
“We, therefore, hold that the selection of the Constables for the promotional course who are already in service before the amendment of 1988 will be made in accordance with the criterion laid down in the pre-amended Rule as contained in the notification dated 4.3.82 and that the amendment made through notification dated 17.6.88 will not be applicable to their case.”
[Emphasis supplied]
31. As is manifest, the respondents had appeared in
the competitive examination and were given seniority
over the applicants. That occasioned in filing of OA No.
1401/CH/90. While dealing with the said application, the
tribunal referred to its interim order and posed the
question as to what would be the seniority of persons
promoted to Head Constables who were sent for training
on the basis of written examination irrespective of
seniority under the interim order of the tribunal dated
31.3.1989. Thereafter, the tribunal opined that the
Constables in service prior to 1988 had a vested right to
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Page 42
be sent for training for promotion to Head Constables on
the basis of unamended Rules. Be it noted, to these
original applications the respondents were not made
parties though their seniority position was determined. At
that time the earlier order dated 8.1.1990 was challenged.
Be it ingeminated, in the earlier order the tribunal, while
referring to the first order in Achhar Chand’s case, had
opined that the selection of the Constables for
promotional posts who were already in service before the
amendment of 1988, would be in accordance with the
criterion laid down in the pre-amended Rule prior to
4.3.1982.
32. The principal assail of Mr. Patwalia is that the
judgment and order passed in the year 1988 was the
foundation of the decision dated 8.1.1990 and that
decision could not have been the subject-matter of
challenge before the High Court as per L. Chandra
Kumar (supra). In L. Chandra Kumar (supra) the larger
Bench, while opining that the question on which the
tribunals have jurisdiction to decide its decision would be
subject to scrutiny before the Division Bench of the
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Page 43
respective High Courts, observed that the directions
issued in the said case would come into effect
prospectively, i.e., it would apply to decisions rendered
after March 18, 1997, i.e., the date the decision in L.
Chandra Kumar was rendered. The doctrine of
prospective overruling was invoked to maintain the
sanctity of judicial precedents and not to disturb a
procedure in relation to decisions already rendered.
33. Keeping the aforesaid proposition of law in mind
we shall proceed to deal with various other facets which
have been canvassed before us, for we feel it is not a case
which can be shut down by holding that the order dated
8.1.1990 having gone unassailed, the doors of justice from
all quarters get closed. The tribunal in Achhar Chand’s
case, which was decided on 27.6.1988, had strictly gone
by the principles stated in Y.V. Rangaiah (supra) by
directing to prepare a fresh list of Constables for sending
to Lower School Course at Police Training College, Phillaur,
in accordance with the pre-amended Rule as far as
vacancies of Head Constables which had come into
existence prior to notification dated 17.6.1988. It had
4
Page 44
further clarified that it is open to the respondent to act in
accordance with the amended Rule in respect of the
vacancies/posts of Head Constables which may have
occurred subsequent to coming into force of the amended
Rule. Submission of Mr. Gupta is that the said order was
not only in accord with Y.V. Rangaiah (supra) but also in
consonance with the principles stated in P. Ganeshwar
Rao (supra), R. Dayal (supra), B.L. Gupta (supra) and
Arjun Singh Rathore (supra).
34. In P. Ganeshwar Rao (supra) the Court
reproduced a passage from Y.V. Rangaiah (supra) and
observed that it appositely applied to the facts of the said
case. The question that emerged for consideration in the
said case was whether the amendment made on April 28,
1980 to the Special Rules in the said case applied only to
the vacancies that arose after the date on which the
amendment came into force or whether it applied to the
vacancies which had arisen before the said date also.
Interpreting the Rule the Court observed that the
amendment on April 28, 1980 did not apply to the
vacancies that had arisen prior to the date of amendment.
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Page 45
The ratio of the said decision is that the vacancies that
had arisen after the amendment would be governed by
the amended Rule and the vacancies that had arisen prior
to the amendment would be governed by the unamended
Rule.
35. In R. Dayal (supra) the Court was considering the
effect of Rule 24-A of the Rajasthan Service of Engineers
(Building and Roads Branch) Rules, 1954 (as amended). It
pertained to the vacancies those were filled up prior to the
amended Rule. Question arose whether the vacancies
were prepared to be filled up under the amended rule or
unamended rule. On behalf of the respondents therein
reliance was placed on Y.V. Rangaiah (supra). The
Court, appreciating the factual scenario and the rule
position, came to hold as follows: -
“But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules
4
Page 46
would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose.”
36. In B.L. Gupta (supra) the Court reiterated the
principle stated in Y.V. Rangaiah (supra), P. Ganeshwar
Rao (supra) and A.A. Calton v. Director of Education21
wherein it had been held that vacancies which had
occurred prior to the amendment of rules were governed
by the old rules and not by the amended rules. In Arjun
Singh Rathore (supra) the views stated in Y.V.
Rangaiah (supra) and R. Dayal (supra) were reiterated.
37. The reference to the aforesaid proposition of law
makes it vivid that the decision rendered by the tribunal in
Achhar Chand’s case was in accord with the precedent
of this Court and, in fact, the tribunal clearly meant that.
38. In Mewa Singh’s case, the tribunal opined that
the selection of the Constables for the promotional course
who were already in service before the amendment of 21 (1983) 3 SC 33
4
Page 47
1988 would be made in accordance with the criterion laid
down in the pre-amended Rule as contained in the
notification dated 4.3.1982. This is contrary to the
decision in Achhar Chand’s case. That apart, the
tribunal also held that the confirmed employees had a
vested right to be considered under the pre-amended rule.
In the said case the respondents were not arrayed as
parties. True it is, by virtue of the interim direction they
appeared in the examination irrespective of seniority and
were promoted as Head Constables on the basis of marks
secured in the test and they were treated senior to the
present appellants. On being approached by the present
appellants in OA No. 1401/CH/90 the tribunal by its order
dated 23.9.1998 quashed the order dated 18.12.1989
whereby the Constables were sent for training on the
basis of written test and the consequent order dated
28.12.1989 by which they were promoted as Head
Constables, and directed for rearrangement of seniority
list of the applicants and the respondents according to
their basic seniority in the rank of Constables.
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39. It is apt to note here that the real cause of
grievance arose for the respondents on 23.9.1998 and on
that ground the High Court repelled the submission of
delay and laches. Mr. Patwalia, learned senior counsel for
the appellants, has harped on the ground that the writ
petition was not maintainable against such an order in
view of L. Chandra Kumar (supra). First, we will look at
the facet of non-impleadment which has been highlighted
by Mr. Gupta. The said submission has two limbs. First,
the mere awareness of pendency of litigation because it is
mentioned “subject to decision in Original Application”
does not make the order binding upon them and the
second, by the time the judgment dated 8.1.1990 was
pronounced all the respondent were sent for Lower School
Course and promoted and, therefore, they were clearly
identified as the ultimately affected parties and hence,
were necessary parties for the purpose of adjudication of
the lis.
40. At this stage, we shall notice certain authorities
which have been commended to us for adjudging the
effect of such non-impleadment. In Khetrabasi Biswal’s
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Page 49
case Orissa Public Service Commission had issued an
advertisement inviting applications in the prescribed form
for twenty five posts of Temporary Munsif (Emergency
Recruitment) in Class II of the Orissa Judicial Service. The
appellants and the respondents had applied before the
Commission. A written examination was held by the
Commission, a list of successful candidates was prepared
and selectees were later on interviewed by the
Commission and in the said proceeding a sitting Judge of
the High Court acted as an expert. Thereafter the select
list was prepared on the basis of merit which contained 39
names. The names of the appellants before this Court
found place therein. The said list was sent to the State
Government for approval. The State Government on
receiving the said list, prepared another list in which the
name of the appellant was found place therein but the
names of Bijaya Kumar Patra and Govinda Chandra Parida
and others were omitted. Number of writ petitions were
filed before the High Court purporting to interpret the
service rules prepared the list of candidates who should
have been selected. Pursuant to and in furtherance of the
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directions issued by the High Court offers of appointment
were issued by the State Government in terms of the list
prepared by the High Court. The appellants who had come
to this Court were not parties to the writ petitions. The
High Court, while preparing its own list did not think it fit
to issue notices to other candidates like the appellants
before this Court who had suffered prejudice by reason of
the directions issued by the High Court. While dealing
with the justifiability of the same this Court held that they
were necessary parties and, in that context, expressed
thus: -
“The procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect.”
41. In the case of Shiv Kumar Tiwari (supra) a suit
was filed without making the affected person a party.
Dealing with the said facet this Court opined that such a
judgment could not be pressed into service to the
detriment of the rights of a party as he was not a party
and any judgment/ decree/order of courts or any other
authority binds only the parties to it or their privies when
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Page 51
it concerns the rights of parties and such proceedings
purport to adjudicate also the rights of the contesting
parties by means of an adversarial process. The Court,
while rejecting the plea that the affected party could have
filed an appeal by obtaining special leave of the court,
held that though it would have been open for such party
to file an appeal with the leave of the court, there is no
duty or obligation cast on it so to do on pain of distress
when in law he could also legitimately ignore the said
judgment as it is a judgment of no value.
42. In Kailash Chand Mahajan’s case the Court
ruled that if a decision is rendered which affects a party, it
would amount to clear violation of the principles of natural
justice and an order passed in violation of the salutary
provision of natural justice would be a nullity.
43. In Mamta Bisht’s case, a two-Judge Bench,
reiterating the principles stated in Udit Narain Singh
Malpaharia v. Board of Revenue22, opined that if a
person who is likely to suffer from the order of the court
and has not been impleaded as a party has a right to
22 AIR 1963 SC 786
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Page 52
ignore the said order as it has been passed in violation of
the principles of natural justice. Reliance was placed on
Prabodh Verma & Ors. v. State of U.P. & Ors.23 and
Tridip Kumar Dingal & Ors. v. State of W.B. & Ors.24
to express the view that if a person challenges the
selection process, successful candidates or ate least some
of them are necessary parties.
44. It is submitted by Mr. Patwalia that the
respondents were sent for Lower School Course subject to
final result of the Original Application and the Original
Application was allowed in favour of the appellants, the
respondents were bound by the said verdict. It is urged
by him that once the respondents were aware of the
litigation and their training was subject to the result of the
Original Application, they cannot be permitted to advance
a contention that their non-impleadment makes it a
nullity. In certain cases where mass copying in an
examination or an examination is conducted in a mala fide
manner by the authorities in the absence of vacancies or
such ancillary situations, the position may be different. In
23 (1984) 4 SCC 251 24 (2009) 1 SCC 768
5
Page 53
the case at hand, the authorities did not accept the order
but challenged the same before this Court in Special
Leave Petition (C) No. 12535 of 1992 and this Court
disposed of the same in 1996 by observing that as the
respondents therein had already completed their training,
the special leave petition has been rendered infructuous.
However, this Court chose not to decide the lis. The
factual matrix would reveal that the authorities acted in
accordance with the earlier order of the tribunal and fixed
the seniority. That was the grievance which was agitated
by the appellants before the tribunal wherein the order
was passed on 23.9.1998. Had the respondents been
made parties to the original application in the second
round, i.e., OA Nos. 697 and 872 of 1988 which gave rise
to the order dated 8.1.1990, they could have been in a
position to assert about the legal position and faced their
fate, making themselves liable to challenge the order.
After they appeared in the competitive examination and
selected being more meritorious, indubitably they were an
identified category. It was not a vague or unidentified
body. When by the determination of the tribunal their
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rights had squarely been affected, the situation
commanded, we are inclined to think, that they should
have been impleaded being necessary parties and their
non-impleadment now permits them to take the plea that
the said order does not bind them. The High Court has
appreciated the chronology of events and quashed the
order dated 8.1.1990 though it could not have entertained
the prayer in that regard as per L. Chandra Kumar’s
case, but while dealing with the lis that travelled to the
High Court from the order dated 23.9.1998 it was within
its domain to declare that the order dated 8.1.1990 is not
binding on the writ petitioners therein. There was no bar
and, therefore, the High Court’s order does not suffer from
any legal infirmity on that score.
45. The next question that emerges for consideration
is whether the order dated 8.1.1990 is legally justified.
There is no shadow of doubt that it is based entirely on
the earlier order dated 28.9.1988 which was rendered by
the tribunal being approached by the real aggrieved
parties and the tribunal relying on binding precedents, had
held that the applicants therein were entitled to be
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considered under the amended Rule that came into force
on 4.3.1982 in respect of the vacancies accrued during the
period, i.e., 4.3.1982 to 17.6.1988. The latter decision
dated 8.1.1990 has completely misread the said decision
and erroneously observed that every confirmed employee
had a vested right. It did not properly appreciate that the
right was restricted to the accrued vacancies and
assumedly remained oblivious to the categorical findings
of the earlier decision that it was open to the respondents
therein to take steps in accordance with the amended
Rule in respect of vacancies to the post of Head
Constables which might have accrued subsequent to the
coming into force of the amended Rules which may fall
vacant thereafter.
46. In this view of the matter, the order is absolutely
unsustainable. The cornerstone of the impugned order
dated 28.9.1998 is the order dated 8.1.1990. If this is
allowed to stand, it would tantamount to palpable
injustice. In this context, we may profitably refer to a
passage from Jamshed Hormusji Wadia (supra),
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wherein the Court referring to the power under Article 136
has opined thus: -
“... in spite of the repeated pronouncements made by this Court declaring the law on Article 136 and repeatedly stating that this Court was a court meant for dealing only with substantial questions of law, and in spite of the clear constitutional overtones that the jurisdiction is intended to settle the law so as to enable the High Courts and the courts subordinate to follow the principles of law propounded and settled by this Court and that this Court was not meant for redeeming injustice in individual cases, experience shows that such self-imposed restrictions placed as fetters on its own discretionary power under Article 136 have not hindered the Court from leaping into resolution of individual controversies once it has been brought to its notice that the case has failed to deliver substantial justice or has perpetuated grave injustice to parties or is one which shocks the conscience of the Court or suffers on account of disregard to the form of legal process or with violation of the principles of natural justice. Often such are the cases where the judgment or decision or cause or matter brought to its notice has failed to receive the needed care, attention and approach at the hands of the tribunal or court below, or even the High Court at times, and the conscience of this Court pricks it or its heart bleeds for imparting justice or undoing injustice. The practice and experience apart, the framers of the Constitution did design the jurisdiction of this Court to remain an extraordinary jurisdiction whether at the stage of granting leave or at the stage of deciding the appeal itself after the grant of leave. This Court has never done and would never do injustice nor allow injustice
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being perpetuated just for the sake of upholding technicalities.”
47. We respectfully concur with the above observation
and conclude that our interference with the decision of the
High Court would perpetuate grave injustice and the
redemption shall remain forever a mirage.
48. That apart, the obtaining fact situation commands
that this Court should invoke the jurisdiction under Article
142 of the Constitution for doing complete justice. There
is no scintilla of doubt that Article 142 of the Constitution
confers immense powers on this Court to do complete
justice in a case, for the powers vested in the Court are
meant for doing complete justice in an appropriate
manner. It is of wide amplitude, and it has its own
restrictions. The plenary powers of this Court under
Article 142 of the Constitution are inherent in the Court
and are complementary to the powers which are
specifically conferred on the Court. This inherent power is
required to be exercised to prevent injustice and to do
complete justice between the parties. It cannot allow any
injustice to be carried on if the injustice is founded on
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certain technical principles. The Court is not to build a
new structure to do the complete justice by ignoring the
substantive provisions, for that would amount to
supplanting. But, certainly it can supplement. It has to be
borne in mind that principle pertaining to do complete
justice as engrafted in Article 142(1) is of immense
potentiality. When the occasion arises, it is the obligation
of this Court to prevent injustice arising from the
exigencies of the case that is unfurled before it. In the
case at hand, the earlier order of the tribunal was legally
sound. In the second case the tribunal, though seems to
have relied upon Achhar Chand’s case, has totally
misunderstood the ratio laid down therein. That apart,
the tribunal had not kept itself alive to the essential facts,
namely, publication of results, selection of candidates and
the impact it would have on their rights if they are not
made parties. Considering all the aspects in a cumulative
manner it can be stated with certitude that if that order is
allowed to reign it would have disastrous impact on justice
and would irrefragably tantamount to miscarriage of
justice. We have already opined that the High Court, while
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dealing with the matter under Articles 226 and 227 of the
Constitution, could have ignored the order dated 8.1.1990.
Despite the said conclusion, we are also expressing our
view by invoking jurisdiction under Article 142(1) of the
Constitution that non-affirmance of the order of the High
Court by accepting the order dated 8.1.1990 would be
constructing the pillar of injustice. The decision which is a
sanctuary of errors could not have been allowed to gain
the benefit of sanctuary of protection and acceptance.
That would be travesty of justice. Hence, the said order
deserved quashment and the High Court has rightly done
so.
49. In the result, the appeal wherein complex issues
have been assiduously raised really lack any substance
and we unhesitatingly concur with the view of the High
Court and, accordingly, the appeal has to pave the path of
dismissal and we so direct. There shall be no order as to
costs.
.............................J. [Anil R. Dave]
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.............................J. [Dipak Misra]
New Delhi; June 30, 2014.
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