IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2274 OF 2002

 Rajinder Pal Singh Lamba                          …. Appellant

Versus

Suraj Bhan & Ors.                                      …. Respondents

WITH

CIVIL APPEAL NO.  6050     OF 2008 (Arising out of SLP (C) No. 6878 of 2002)

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.          

1. Leave granted in SLP (C) No. 6878 of 2002

2. What  is  challenged  in  these  appeals  is  the  judgment  and  order  of  the

Division Bench of Delhi High Court whereby the appeals filed against the

order of the Ld. Single Judge in two Writ Petitions were allowed.

3. The grievance of  the appellants  as  was raised in  the Writ  Petitions,  in

nutshell, is as follows:-

S/Shri Rajendera Singh Lamba and V.K. Garg, appellants herein were

appointed as  Lower Division Clerks (for short  ‘LDC’) on 01.10.1972 and

24.11.1969 respectively, in the Ministerial  Establishment of the District &

Sessions  Judge,  Delhi.    During  their  employment  they  completed  their

graduation from Delhi  University in the year 1975 and 1974 respectively.

S/Shri  Rajinderpal  Singh  Lamba  and  V.K.  Garg  on  24.12.1986  and

02.01.1987  respectively  submitted  their  applications  to  the  District  &

Sessions  Judge,  Delhi  seeking  promotion  to  the  posts  of  Upper  Division

Clerk (for short ‘UDC’).  The said applications were made seeking benefit of

Rule VI, Chapter 18-A, High Court Rules and Orders, Vol. 1 framed under

Section  35(3)  of  the  Punjab  Courts  Act,  1918.    The  said  Rule  reads  as

under:-

"Promotion--(1)  Appointments  to  the  higher  grades  of  the ministerial establishment should ordinarily be made by seniority from lower grades,  provided that  the official  who would thus receive  promotion  possesses  the  prescribed  educational qualifications and is otherwise fit to perform the duties to which he will be promoted; for which purpose tests may be imposed. This rule does not apply to such posts as that of stenographer; for  which  special  qualifications  are  needed;  but  preference should  be  given  to  officers  with  such  qualifications  who  are already working in the lower grades;

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Provided that permanent vacancies in the 75-5-125 grade shall be  filled  by  the  District  & Sessions  Judges  in  the  following rotation:--

(i) By selection on merit out of graduates who have atheist two years' experience in the work of the office, if there is no suitable graduate who fulfills  this condition an 'outsider' graduate may be appointed, but he must be one who normally resides within the jurisdiction of the District & Sessions Judge.

(ii)  &  (iii)  By  normal  promotion  in  the  office,  i.e.,  the appointment of the next  senior man whether graduate or non- graduate subject to his fitness:

Provided  further  that  the  rotation  may  be  modified  in  very exceptional  cases  when  the  direct  appointment  of  a  graduate would  mean  the  ousting  of  a  man,  who  had  been  officiating quasi-permanently  in  the  post  concerned  for  an  appreciable period.  What  is  an  appreciable  period  will  depend  on  the circumstances  of  each  case.  After  such  a  modification,  the rotation should be restored as soon as possible.

(2) In making promotions preference may invariably be shown to officials who are known to be strictly honest. No promotion should be given and no recommendation for promotion made in the  case  of  an  official  who  does  not  possess  and  maintain  a reputation for strict integrity. Efficiency without honesty is not to be regarded as constituting a claim to promotion."

The appellants were seeking their promotion w.e.f. 1975, as according

to them permanent vacancies in the cadre of UDC have occurred in the year

1975.

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The said applications were rejected by the District and Sessions Judge,

Delhi.  Aggrieved by the said rejection the appellants filed service appeals in

the  Administrative  side  of  Delhi  High  Court.   By  communication  dated

02.03.1988,  the  service  appeals  were  allowed,  but  to  the  extent  that  the

appellants are entitled to be considered for promotion to the grade of UDC

and that the promotion, if any, will be prospective only.

The  appellants  still  aggrieved,  as  the  promotion  and  other  service

benefits  were  not  granted  with  retrospective  effect,  approached  the  Delhi

High Court, on Judicial Side, by filing two separate writ petitions.

4. In the meantime acting upon the above-mentioned communication dated

02.03.1988 the appellants viz. V.K. Garg and Rajinderpal Singh Lamba

were  promoted  to  the  grade  of  UDC  with  effect  from  1.4.1988  and

30.1.1992 respectively, with prospective effect.

5. The Ld. Single Judge while disposing of the writ petitions held that as

there were number of vacancies in the post of UDC in the year 1975-76,

the claims of the appellants  could and should have been considered in

accordance with the statutory rules embodied in Rule VI, Chapter 18-A,

High  Court  Rules  and  Orders  and  consequently  ordered  that  the

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appellants be deemed to have been promoted as UDC w.e.f. 01.01.1976.

However, they were denied monetary benefit for the said period.

The Ld. Single Judge further held that the High Court of Delhi and the

District & Sessions Judge, Delhi being respondent No. 4 and 5 herein, would

also  give  the  benefit  to  the  other  similarly  situated  persons  like  the

appellants, who had become graduates before 01.01.1976.

6. The order of the Ld. Single Judge was challenged by two of the private

respondents viz. Shri Suraj Bhan and Radha Krishan, who were working

on  the  post  of  UDC  at  that  point  of  time,  primarily  on  the  below

mentioned grounds:-

i)   The representations were made after a lapse of about 11/12 years,

thus the claim was barred by laches;

ii) Section 35(3) of the Punjab Courts Act, 1918 under which, Rule VI

was framed stood repealed by the Government of India (Adaptation

of Indian Law) Order 1937 as a result of which the said rule ceased

to exist.

An appeal was also filed by the appellants claiming monetary benefits, which

were denied by the Ld. Single Judge.

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7.  The Division Bench allowed the appeal filed by the private respondents,

respondent No. 1 and 2 herein, primarily on the ground that since the rule

of promotion with retrospective effect involves the issue of seniority as

well,  the  said  issue  and question  cannot  be  re-opened  after  lapse  of  a

considerable time and reasonable period to disturb the settled position. It

was therefore held that the writ petition was liable to be rejected.   On the

issue of validity and applicability of Rule VI it was held that the said rule

was applicable at the relevant time as the same was saved by virtue of

Article  9  of  Order  of  1937.   As against  the  said  impugned order  this

appeal was filed.

8. It is pertinent to mention at this stage that both the appellants after being

promoted to the post of UDC in the year 1988 were further promoted to

the post of Assistant, in the year 1995 in case of Shri V.K. Garg and in the

year 1997 in case of  Shri Rajender Pal Singh.

9. In the backdrop of the aforesaid facts we heard learned counsel for the

parties and perused the record.  

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10.The  learned  counsel  for  the  appellants  placing  reliance  on  Rule  VI

contended  that  as  per  the  said  statutory  rule  which  was  valid  and

applicable at the relevant time the respondent Nos. 4 and 5 were obliged

to  consider  appellants  for  promotion  to  the  grade  of  UDC when  there

were  number  of  vacancies  in  the  said  grade  in  the  year  1975-76.  He

further argued that as the rule was statutory in nature the benefit of the

said rule cannot be denied on the ground of delay and laches.

11.None appeared on behalf of respondent No. 1 and 2, viz. Shri Suraj Bhan

and Radha Krishan who filed the appeal before the Division Bench of the

High  Court.  We were  told  that  both  of  them have  retired  during  the

pendency of  present  proceedings.  Counsel  appearing for  the  remaining

respondents reiterated the stand taken before the Division Bench.

12.So far as Rule VI, of the Chapter 18-A, High Court Rules and Orders is

concerned the same was valid and applicable on the relevant date despite

the fact that Section 35(3) of the Punjab Courts Act, 1918 stood repealed

by the Government of India (Adaptation of Indian Law) Order 1937, by

virtue of Article 9 of Order of 1937. Article 9 reads as under:

"The  provisions  of  this  Order  which  adapt  or  modify  Indian laws so as to alter the manner in which, the authority by which,

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or the law under, or in accordance with which, any powers are exercisable,  shall  not  render  invalid  any  notification,  order, commitment, attachment, byelaw, rule or regulation duly made, or issued, or anything duly done, before the commencement, of this  Order;  and  any  such  notification,  order,  commitment, attachment,  byelaw, rule, regulation or thing may be revoked, varied or undone in the like manner, to the like extent and in the like circumstances as if it had been made, issued or done after the commencement of this Order by the competent authority and under and in accordance with the provisions then applicable to such a case."

Rule VI has been in operation without any amendment therein until

19.03.1999  when fresh  rules  of  promotion  were framed by the  Punjab  &

Haryana High Court  substituting  Rule VI vide Punjab  Government,  Gaz.,

March 19, 1999 (PHGN, 1920, SAKA).

13.The Respondent No. 4 was under a fiduciary duty and was required to

consider  the  name of  appellants  for  promotion  to  the  post  of  UDC in

accordance  with  the  statutory  rule  as  and  when  the  vacancy  arose.

Unfortunately, there was lapse on the part of the Respondent No. 4 due to

which the case of the appellants for promotion could not be considered.   

14.At the same time it  cannot be scored out that the appellants slept over

their rights, which led to a considerable delay i.e. delay of 11-12 years on

the part of the appellants to give representation for promotion to the grade

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of UDC. Delay defeats equity is a well-known principle of jurisprudence.

Delay of 11 to 12 years cannot be overlooked when an applicant before

the court seeks equity and specially in the case of service matters as in the

said case it jeopardises the existing positions of a very large number of

members of that service.  

15.The appellants, however, submitted that pursuant to the order of the Ld.

Single Judge they have been granted promotion w.e.f 01.01.1976 and they

have been further promoted to the post of the Assistant.  

16.Thus the question is, whether we should now take away the benefit which

the  appellant  had  actually  obtained  under  the  order  of  the  Ld.  Single

Judge. The settled position has been once unsettled by the order of the Ld.

Single Judge which has now some how settled again, the question is also

that should we by our order now once again unsettle the so called settled

position.    

17.Interestingly though the appeal was filed against the common judgment

and order passed by the Ld. Single Judge but only Shri Rajendera Singh

Lamba was added into the array of respondents, thus, not challenging the

relief granted to Shri V.K. Garg.  Respondent Nos. 1 and 2 did not raise

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the issue of delay and laches before the Ld. Single Judge and the said

issue was raised for the first time in appeal before the Division Bench of

the High Court. The plea of delay and laches raised by respondent Nos. 4

and 5 was declined by the Ld. Single Judge on the ground that once there

was a statutory rule the said respondents were obliged to follow the same.

18.As  of  today  respondent  Nos.  1  and  2  have  no  grievance  against  the

appellants as they stood retired and no benefit will accrue upon them even

if the order denying the promotion to the appellants to the post of UDC

w.e.f  01.01.1976  is  allowed.  On  the  other  hand  the  promotion  to  the

appellants with retrospective i.e. w.e.f 01.01.1976 was granted subsequent

to the judgment and order of the Ld. Single Judge which was in the year

1998. As of now, the appellants have reaped the benefits of promotion

with retrospective effect for nearly 10 years.

19.Though it  cannot  be  denied  that  there  was  considerable  delay and the

observations of the Division Bench in this regard cannot be faulted with

but in the peculiar facts and circumstances of the case we do not think

that it would be fair to the appellants if the benefits they had secured are

taken  away.  Therefore,  we  direct  that  the  benefits  granted  to  the

appellants  and  already received  by them pursuant  to  the  order  of  Ld.

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Single Judge shall not be taken away as they have enjoyed such benefit

for a very long period of time. However, they shall not be entitled to any

additional benefit and no additional benefit will  be granted. Obviously,

such relief cannot be granted to anybody else.  

20.We make it clear that all the observations made herein are our views and

opinion in the peculiar facts and circumstances of the present case. The

questions  of  law  raised  before  the  High  Court  are  kept  open  to  be

examined by this Court in an appropriate case.  Needless to say, this order

shall not be construed as a precedent in any other matter.

21.Accordingly, the appeals are disposed of in terms of the aforesaid order.

No order as to cost.

…………………………...J. (R.V. Raveendran)  

…………………………J. (Dr. Mukundakam Sharma)

New Delhi; October 3, 2008

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