Page 1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7328-7329 OF 2013 (Arising out of S.L.P. (C) Nos. 15197-98 of 2012)

State of Uttaranchal and another ...  Appellants

Versus

Sri Shiv Charan Singh Bhandari and others  ...Respondents

J U D G M E N T

Dipak Misra, J.

Delay condoned.

2. Leave granted in both the special leave petitions.

3. The respondents were appointed in Group III posts in  

Subordinate  Agricultural  Services  (SAS)  in  the  

Department of Agriculture in the undivided State of  

Uttar  Pradesh.   Some  of  them  were  appointed  in  

1974  and  some  in  the  year  1975.   A  provisional  

seniority  list  in  the  cadre  of  SAS  Group  III  was

Page 2

prepared  where  they  were  shown  senior  to  one  

Madhav  Singh  Tadagi.   The  said  Madhav  Singh  

Tadagi,  who  was  working  as  Agriculture  Plant  

Protection  Supervisor,  Group  III,  was  given  ad  hoc  

promotion  to  the  post  of  Assistant  Development  

Officer  (Plant  Protection,  Group  II)  by  the  Deputy  

Director of Agriculture on 15.11.1983.  In the year  

1983  a  Selection  Committee  was  constituted  for  

making promotion to Group II posts on the basis of  

seniority-cum-fitness from amongst the employees of  

Group III posts and in the said selection process the  

respondents as well  as Madhav Singh Tadagi  were  

promoted on regular basis in Group II  posts.   After  

regular  promotion  was  made,  a  seniority  list  was  

finalized  in  respect  of  promotional  cadre  and  the  

respondents  were  shown  senior  to  Madhav  Singh  

Tadagi.   The  final  seniority  list  was  issued  on  

12.2.1994.

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

the  State  of  Uttaranchal  (presently  State  of  

Uttarakhand) was created.  The respondents as well  

2

Page 3

as Madhav Singh Tadagi were allocated to the State  

of  Uttarakhand.   On  14.10.2003,  the  respondents  

filed  a  claim  petition  No.  154  of  2003  before  the  

Public Services Tribunal of Uttarakhand at Dehradun  

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

entitled  to  promotion  from  SAS  Group  III  to  SAS  

Group  II  with  effect  from  15.11.1983  the  date  on  

which the junior was promoted and, accordingly, to  

get  their  pay  fixed  along  with  other  consequential  

benefits,  namely,  arrears  of  salary  and  interest  

thereof.  Be it noted, the respondents had submitted  

number  of  representations  during  the  period  from  

July, 2002 to June, 2003 but the said representations  

were not dealt with.

5. The  claims  put  forth  by  the  respondents  were  

resisted  by  the  State  and  its  functionaries  

contending,  inter  alia,  that  promotion  to  Madhav  

Singh Tadagi  was given by an officer who was not  

competent  to  promote  any  incumbent  from  SAS  

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

made  without  prejudice  to  the  seniority  of  other  

3

Page 4

employees; and that the grievance put forth was hit  

by  limitation.   The tribunal,  after  hearing  the  rival  

submissions urged before it, came to hold that as a  

junior person was extended the benefits of promotion  

in the year 1983, the  seniors could not be deprived  

of the said promotional benefits and, hence, they are  

entitled to get promotion from the said date.  Being  

of  this  view,  the  tribunal  directed  that  the  

respondents shall be given benefits of promotion with  

effect from November, 1983 and as they had already  

been  promoted  in  the  year  1989,  they  would  be  

entitled  to  notional  promotional  benefits  from  

15.11.1983.

6. Assailing  the  order  of  the  tribunal  the  State  of  

Uttarakhand  and  its  functionaries  preferred  Writ  

Petition  No.  133 of  2006 before  the  High  Court  of  

Uttarakhand at Nainital.  The High Court opined that  

Madhav Singh Tadagi was promoted on ad hoc basis,  

continued  in  the  said  post  and  was  allowed  

increments  and  the  promotional  pay-scale  till  his  

regular promotion, and the claimants though seniors,  

4

Page 5

were promoted on a later date on regular basis and,  

therefore, the directions issued by the tribunal could  

not be found fault  with.   After  disposal  of  the writ  

petition, an application for review was filed with did  

not find favour with the High Court and accordingly it  

dismissed the same by order dated 2.3.2012.  Hence,  

the  present  appeals  by  special  leave  have  been  

preferred challenging the said orders.

7. We  have  heard  Ms.  Rachna  Srivastava,  learned  

counsel appearing for the appellants, and Mr. Gaurav  

Goel, learned counsel appearing for the respondents.

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

both the tribunal and the High Court have failed to  

appreciate that the claim put forth before the tribunal  

did  not  merit  any  consideration  being  hit  by  the  

doctrine  of  delay  and  laches  inasmuch  as  the  

respondents did not  challenge the grant of  ad hoc  

promotion to  the junior  employee from 15.11.1983  

till 14.10.2003.  It is her further submission that the  

respondents  really  cannot  have  any  grievance  in  

praesenti as said Madhav Singh Tadagi’s promotion  

5

Page 6

from 1983 has been cancelled during the pendency  

of  the  special  leave  petition  by  the  competent  

authority of the State Government, and quite apart  

from that when the junior employee was only given  

ad hoc promotion and continued in the said post but  

not  conferred  seniority  in  the  promotional  grade  

when regular  promotions took place in  1989.   The  

learned counsel  for  the State would further  submit  

that the grant of notional promotion along with other  

consequential  benefits  to  the  claimant-respondents  

solely on the ground that the junior functioned in the  

promotional post from a prior date, is not justified.

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

respondents,  in  oppugnation  to  the  aforesaid  

proponements, would contend that the respondents  

had raised their grievance by bringing it to the notice  

of the Competent Authority in the year 1984 but they  

fell in deaf ears.  Thereafter, they submitted number  

of representations but when sphinx like silence was  

maintained by the State which is totally unexpected  

from a model employer, they approached the tribunal  

6

Page 7

and, in the obtaining factual matrix, the tribunal has  

appositely not thrown their claim  overboard on the  

ground  of  delay  and  laches  and,  hence,  the  order  

passed  by  the  tribunal,  which  has  been  given  the  

stamp  of  approval  by  the  High  Court,  cannot  be  

flawed.  It is canvassed by him that the submission  

that  Madhav  Singh  Tadagi’s  promotion  has  been  

cancelled  and,  therefore,  the  grievance  of  the  

respondents stands mitigated, has no legs to stand  

upon,  and that  apart  the order  of  cancellation has  

already been assailed before the High Court and an  

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

propounded that setting aside of the order would be  

inequitable  as  the  junior  has  already  received  the  

benefit  and the seniors  have been deprived of  the  

same.

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

we  are  not  going  to  deal  with  the  cancellation  of  

promotion of the said Madhav Singh Tadagi as the  

same  is  sub-judice  before  the  High  Court  and  an  

order  of  stay  has  been  passed.   We  may  further  

7

Page 8

clarify  that  advertence  to  the  same  by  us  is  not  

required  for  the  adjudication  of  the  controversy  

involved in these appeals.

11. The  centripodal  issue  that  really  warrants  to  be  

dwelled upon is whether the respondents could have  

been allowed to maintain a claim petition before the  

tribunal  after  a  lapse  of  almost  two  decades  

inasmuch as the said Madhav Singh Tadagi, a junior  

employee,  was  conferred  the  benefit  of  ad  hoc  

promotion from 15.11.1983.  It is not in dispute that  

the respondents were aware of the same.  There is  

no  cavil  over  the  fact  that  they  were  senior  to  

Madhav Singh Tadagi in the SAS Group III and all of  

them were considered for  regular promotion in the  

year  1989  and  after  their  regular  promotion  their  

seniority  position  had  been  maintained.   We  have  

stated so as their inter-se seniority in the promotional  

cadre  has  not  been  affected.   Therefore,  the  

grievance  in  singularity  is  non-conferment  of  

promotional  benefit  from the date when the junior  

was promoted on ad hoc basis on 15.11.1983.’

8

Page 9

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

the cadre is conferred with the benefit of promotion  

ignoring  the  seniority  of  an  employee  without  any  

rational  basis  the  person  aggrieved  can  always  

challenge the same in an appropriate forum, for he  

has  a  right  to  be  considered  even  for  ad  hoc  

promotion and a junior cannot be allowed to march  

over  him solely  on  the  ground that  the  promotion  

granted is ad hoc in nature.  Needless to emphasise  

that if the senior is found unfit for some reason or  

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

senior incumbents are eligible as per the rules and  

there  is  no  legal  justification  to  ignore  them,  the  

employer cannot extend the promotional benefit to a  

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

not permissible.

13. We  have  no  trace  of  doubt  that  the  respondents  

could  have  challenged  the  ad  hoc  promotion  

conferred  on  the  junior  employee  at  the  relevant  

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

junior  employee  held  the  promotional  post  for  six  

9

Page 10

years  till  regular  promotion  took  place.  The  

submission  of  the  learned  counsel  for  the  

respondents is that they had given representations at  

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

interesting to note that  when the regular  selection  

took place, they accepted the position solely because  

the  seniority  was  maintained  and,  thereafter,  they  

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

is clear as noon day that the cause of action  had  

arisen  for  assailing  the  order  when  the  junior  

employee  was  promoted  on  ad  hoc  basis  on  

15.11.1983.  In  C. Jacob  v.  Director of Geology  

and Mining and 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

10

Page 11

become  stale  or  barred  by  limitation,  can  be  rejected  on  that  ground  alone,  without  examining the merits of the claim. In regard to  representations  unrelated  to  the  Department,  the reply may be only to inform that the matter  did not concern the Department or to inform the  appropriate  Department.  Representations  with  incomplete  particulars  may  be  replied  by  seeking relevant particulars. The replies to such  representations, cannot furnish a fresh cause of  action or revive a stale or dead claim.”

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

11

Page 12

direction.  Neither  a  court’s  direction  to  consider  a  

representation issued without examining the merits,  

nor  a  decision  given  in  compliance  with  such  

direction,  will  extend  the  limitation,  or  erase  the  

delay and laches.

15. From the aforesaid authorities it  is  clear as crystal  

that  even  if  the  court  or  tribunal  directs  for  

consideration  of  representations  relating  to  a  stale  

claim or  dead grievance it  does not  give rise  to  a  

fresh  cause  of  action.    

The dead cause of action cannot rise like a phoenix.  

Similarly, a mere submission of representation to the  

competent  authority  does  not  arrest  time.   In  

Karnataka  Power  Corpn.  Ltd.  through  its  

Chairman  &  Managing  Director  v.  K.  

Thangappan and 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

12

Page 13

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

13

Page 14

a relevant factor for a court of law to determine  the question as to whether the claim made by  an  applicant  deserves  consideration.   Delay  and/or  laches  on  the  part  of  a  government  servant may deprive him of the benefit  which  had  been  given  to  others.   Article  14  of  the  Constitution of India would not, in a situation of  that nature, be attracted as it is well known that  law leans in favour of those who are alert and  vigilant.”

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

promotion is based on the concept of equality and  

equitability,  but  the  said  relief  has  to  be  claimed  

within  a  reasonable  time.   The  said  principle  has  

been stated in  Ghulam Rasool Lone  v.  State of  

Jammu and Kashmir and 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

14

Page 15

respondents  had  filed  the  writ  petition  after  

seventeen years and the court, as stated earlier, took  

note of the delay and laches as relevant factors and  

set aside the order passed by the High Court which  

had exercised the discretionary jurisdiction.

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

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

v. State of Tamil 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

15

Page 16

stand  by  and  allow  things  to  happen  and  then  

approach the Court to put forward stale claims and  

try to unsettle settled matters.  

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

the  seniority  has  not  been  disturbed  in  the  

promotional  cadre  and  no  promotions  may  be  

unsettled.  There  may  not  be  unsettlement  of  the  

settled position but, a pregnant one, the respondents  

chose to sleep like Rip Van Winkle and got up from  

their slumber at their own leisure, for some reason  

which  is  fathomable  to  them  only.   But  such  

fathoming of reasons by oneself is not countenanced  

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

suffer.  As we perceive neither the tribunal nor the  

High Court has appreciated these aspects in proper  

perspective and proceeded on the base that a junior  

was promoted and, therefore, the seniors cannot be  

denied  the  promotion.   Remaining  oblivious  to  the  

factum  of  delay  and  laches  and  granting  relief  is  

contrary to all settled principles and even would not  

remotely attract the concept of discretion.  We may  

16

Page 17

hasten to add that the same may not be applicable in  

all  circumstances  where  certain  categories  of  

fundamental rights are infringed.  But, a stale claim  

of getting promotional benefits definitely should not  

have been entertained by the tribunal and accepted  

by the High Court.  True it is,  notional promotional  

benefits have been granted but the same is likely to  

affect the State exchequer regard being had to the  

fixation of pay and the pension.  These aspects have  

not  been taken into  consideration.   What  is  urged  

before us by the learned counsel for the respondents  

is  that they should have been equally treated with  

Madhav Singh Tadagi.  But equality has to be claimed  

at  the  right  juncture  and  not  after  expiry  of   two  

decades.   Not  for  nothing,  it  has  been  said  that  

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

way slaves of time.  There may not be any provision  

providing  for  limitation  but  a  grievance  relating  to  

promotion cannot be given a new lease of life at any  

point of time.

17

Page 18

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

something about the benefit of promotion conferred  

on the junior employee.  We have been apprised by  

the learned counsel for the State that the promotion  

extended to him on 15.11.1983 has been cancelled  

and, as further put forth by the learned counsel for  

the respondents, the same is under assail before the  

High  Court.   The  said  Madhav  Singh  Tadagi  was  

neither  a  party  before  the  tribunal  nor  before  the  

High  Court  and  he  is  also  not  a  party  before  this  

Court.   As  presently  advised,  we  refrain  ourselves  

from expressing any opinion on the cancellation of  

promotion and the repercussions of the same.  As the  

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

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

accordance with the settled principles of law in that  

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

we irrefragably come to hold that the direction given  

by the tribunal which has been concurred with by the  

High Court being absolutely unsustainable in law is  

bound to be axed and  we so do.   

18

Page 19

Consequently,  the  appeals  are  allowed  and  the  orders  

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

aside.  There shall be no order as to costs.  

.................................J. [Anil R. Dave]

.................................J. [Dipak Misra]  

New Delhi August 23, 2013.  

19