Page 1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.     4986-4989     OF     2007   

Vijay Kumar Kaul and others        ….. Appellants

Versus

Union of India and others … Respondents  

J     U     D     G     M     E     N     T      

Dipak      Misra,     J.   

The appellants, four in number, participated in a selection  

process conducted by the Second Field Ordnance Depot (2 FOD)  

in the year 1984 for the post of Lower Division Clerks (LDCs).  

Despite their selection for the post in question they were not  

issued appointment letters on the pretext that there was a ban  

on appointments.  In December 1993, pursuant to the order  

passed in OA No. 29/jk/92 dated 24.8.1993 by the Chandigarh  

Bench of the Central Administrative tribunal (for short ‘the

Page 2

2

Tribunal’), respondent No. 4 was issued an appointment letter.  

The appellant Nos. 1 to 3 were given appointment in May, 1996  

on the basis of the directions issued on 24.7.1995 by the High  

Court of Jammu and Kashmir in SWP No. 1052 of 1991.  

2. It is worth noting that Parveen Singh and others, whose  

names, had figured in the select list, being aggrieved due to non  

appointment, had preferred OA No. 539-HP of 1986 before the  

Chandigarh Bench of the tribunal which allowed the OA vide  

order dated 25.8.1987 directing the respondent herein to issue  

appointment letters to them.  The respondents instead of  

appointing the said Parveen Singh and others against the  

vacancies in 9 FOD, where there were ten vacancies of LDCs,  

appointed them against the vacancies falling in 2 FOD where  

there were 27 vacancies for LDCs with effect from 1.1.1990.  

3. As set forth, said Parveen Singh and others filed second OA  

No. 1476-pb-1991 before the Chandigarh Bench of the tribunal  

with a prayer to issue a direction to the respondents to appoint  

them as LDCs with effect from 1.5.1985 with all consequential  

benefits including seniority, pay and allowances, etc. on the  

foundation that similarly situated persons who were selected

Page 3

3

along with them had been appointed with effect from 1985.  The  

tribunal allowed the application vide order dated 13.10.2000  

directing that their appointment shall be treated with effect from  

1.5.1985 and they shall be extended the benefit of fifty per cent  

of back wages and other consequential reliefs.

4.   The aforesaid order was called in question by the  

respondents before the High Court of Punjab and Haryana in  

CWP No. 1158 of 2001 and a Division Bench of the High Court,  

as per order dated 12.7.2001, set aside the order of the tribunal  

to the extent of grant of back wages but did not interfere with the  

direction ante-dating their date of appointment and other  

consequential reliefs granted by the tribunal.

5. As has been stated earlier that the appellants had  

approached the tribunal and were appointed on two different  

dates sometime in December, 1993 and May, 1996.  After the  

High Court of Punjab and Haryana passed the order, the  

respondents conferred the benefit on said Parveen Singh and  

others.  Thereafter, the present appellants submitted a series of  

representations to extend to them the similar benefits on the

Page 4

4

foundation of parity.  The said prayer was negatived by the  

respondents by order dated 21.7.2004.   

6. Being dissatisfied with the said action of the respondents  

the appellants knocked at the doors of the Principal Bench of the  

tribunal in OA No. 2082 of 2004.  It was contended before the  

tribunal that grave injustice had been done to them by the  

respondents inasmuch as they were not given the equal  

treatment that was given to similarly placed employees; and that  

their seniority position and prospects for promotion had been  

immensely affected.  The stance and stand put forth by the  

appellants was resisted by the respondents contending, inter  

alia, that as the appellants were not parties to the application  

before the Chandigarh tribunal and were not covered by the  

judgment of Punjab and Haryana High Court, they were not  

extended the benefit; that only those general category candidates  

who were placed higher in merit list were appointed prior to them  

excepting one Kalu Ram who belonged to the Scheduled Caste  

category; that the appellants could not have been appointed as  

there was a ban and thereafter they were appointed as per the  

direction of the High Court of Jammu and Kashmir; and that the  

tribunal in OA No. 29/jk/92 preferred on the question of

Page 5

5

appointment of the appellant No. 4 had clearly stated that the  

appointment shall have prospective effect and he would not be  

entitled to any back wages or seniority and the said order has  

gone unassailed; and hence, the claim put forth in the petition  

did not merit consideration.  

7. The tribunal adverted to various orders passed by the  

tribunal at various junctures and the orders passed by the  

Punjab and Haryana High Court and came to hold that as far as  

the appellant No. 4 is concerned his case had attained finality;  

that the decision rendered in the case of Parveen Singh and  

others could not be treated as judgment in rem but a judgment in  

personam; and that the appellants had been given appointment  

as per their placement in the merit list regard being had to  

availability of vacancies and hence, it could not relate to an  

earlier date, especially when they failed to show that any person  

junior to them had been given appointment from a retrospective  

date or extended benefit.  Being of this view the tribunal  

dismissed the Original Application.

8. Aggrieved by the aforesaid order the appellants invoked the  

jurisdiction of the High Court of Delhi under Articles 226 and

Page 6

6

227 of the Constitution of India seeking a writ of certiorari for  

quashment of the order dated 10.3.2005 passed by the tribunal  

and also for quashing of the orders by which their  

representations had been rejected and further pressed for issue  

of a writ of mandamus commanding the respondents to extend  

the similar benefits as had been extended to Parveen Singh and  

others in view of the judgment rendered by Punjab and Haryana  

High Court.

9. The High Court, upon perusal of the order passed by the  

tribunal, the decision rendered by the Punjab and Haryana High  

Court, and on considering the factum of the delay and laches on  

the part of the appellants, and that they had not been  

superseded as the select list was prepared in order of merit, and  

appreciating the fact that the appointments had been made  

strictly in accordance with the merit declined to interfere with the  

order.

10. We have heard Mr. Ashok Bhan, learned senior counsel for  

the appellants and Mr. R.P. Bhatt, learned senior counsel for the  

respondents.  

Page 7

7

11. It is submitted by the learned senior counsel for the  

appellants that the tribunal as well as the High Court have fallen  

into serious error by expressing the view that the appointments  

were based on the merit list and, therefore, there was no  

supersession of the appellants.  It is urged by him that neither  

the original application nor the writ petition could have been  

dismissed on the ground of delay and laches, in view of the fact  

that the appellants immediately approached the tribunal after the  

High Court rendered its judgment on 12.7.2001.  It is his further  

submission that a serious anomalous situation has cropped up  

inasmuch as the candidates whose names featured in one select  

list  have been appointed at various times,  as a consequence of  

which their pay-scale, seniority and prospects for promotion,  

have been put to jeopardy.  The last limb of submission of the  

learned senior counsel for the appellants is that both the forums  

have failed to appreciate that injustice meted out to the  

appellants deserved to be remedied applying the doctrine since  

the doctrine of parity and the orders are vulnerable and deserved  

to be axed and appropriate direction are to be issued considering  

similar benefits.   The learned senior counsel to bolster his  

submission has placed reliance on the decisions in K.C. Sharma

Page 8

8

and others v. Union of India and others1, Collector of  

Central Excise, Calcutta v. M/s. Alnoori Tobacco Products  

and anr.2,  State of Karnataka and others v. C. Lalitha3 and  

Maharaj Krishan Bhatt and another v. State of Jammu and  

Kashmir and others4.

12. Mr. Bhatt, learned senior counsel for the respondents  

supported the order passed by the tribunal as well as by the High  

Court on the ground that the decisions which have been  

rendered by the tribunal and the High Court are absolutely  

impregnable since the appellants had never approached the  

tribunal at the earliest and only put forth their claims after  

success of Parveen Singh and others.  It is propounded by him  

that the appellants while filing the various original applications  

seeking appointment had never claimed the relief of appointment  

with retrospective effect and, in fact, in the case of the appellant  

No. 4 the tribunal has categorically stated that his appointment  

could have prospective effect which has gone unassailed and,  

therefore, relying on the decision of Parveen Singh and others is  

of no assistance to the appellants.

1 (1997) 6 SCC 721 2 2004 (6) SCALE 232 3 (2006) 2 SCC 747 4 (2008) 9 SCC 24

Page 9

9

13. To appreciate the rival submissions raised at the Bar it is  

appropriate to refer to the various orders passed at various times.  

Parveen Singh and others approached the tribunal of Chandigarh  

at Chandigarh Bench in the year 1986.  The tribunal, by order  

dated 25.8.1987, directed to issue appointment letters to the  

applicants against the vacancies which had not been filled up,  

regard being had to the merit position in the examination.  

Thereafter, the said Parveen Singh and others were intimated  

vide letter dated 15.1.1991 to report at the office for collection of  

their appointment letters on character verification and eventually  

they got appointments.  Later on Parveen Singh and others had  

approached the tribunal to extend the monetary benefits from the  

date of their appointment.  The tribunal had directed to extend  

50% of the actual monetary benefits from the date of  

appointment along with other consequential benefits.  The Union  

of India and its authorities preferred writ petition before the High  

Court of Punjab and Haryana, which passed the following order: -

“For the reasons recorded above, the writ petition  is partly allowed and the order of the tribunal is  quashed to the extent it grants 50% back wages.  However, we do not find any infirmity in keeping  intact the other reliefs granted by the tribunal,  namely, ante-dating of appointment of  respondent Nos. 1 to 7 and fixation of their pay

Page 10

10

with all consequential benefits of increments etc.  with effect from the date, all other candidates  placed on the panel of selected candidates were  appointed.  No order as to costs.”

14. While Parveen Singh and others were proceeding in this  

manner, appellant No. 4, Ujwal Kachroo, approached the tribunal  

at Jammu.  The tribunal allowed OA and directed to issue  

appointment letter to the applicant for the post for which he was  

duly selected in 1984 within a period of six weeks.  It proceeded  

to clarify that the appointment shall have prospective effect and  

he would not be entitled to any back wages or seniority for the  

simple reason that it was neither his case nor anything had been  

brought on record to show that any person junior to him in the  

panel had already been appointed.  At this juncture, three of the  

appellants approached the High Court of Jammu and Kashmir  

and the learned single Judge of the High Court of Jammu and  

Kashmir, by order dated 24.7.1995, had passed the following  

order: -

“I have heard learned counsel for the parties.  The respondents have no objection in appointing  the petitioners as and when the posts of LDCs  become available and also subject to their merit  positions in the select list.  Since the  respondents have not objected in making  appointments of the petitioner, I allow this writ  petition and direct the respondents that the

Page 11

11

petitioners shall be appointed as LDCs as and  when the posts become available, on their own  turn, as per their merit position in the select  list.”

On the basis of the aforesaid order, the said appellants were  

given appointment.

15. After the decision of the Punjab and Haryana High Court  

was delivered the present appellants approached the Principal  

Bench of the tribunal and the tribunal did not accept the prayer  

which has been given the stamp of approval by the High Court.

16. In the course of hearing, learned senior counsel for the  

parties fairly stated that the decision rendered by the High Court  

of Punjab and Haryana has not been challenged before this Court  

and, therefore, we refrain from commenting about the legal  

defensibility of the said decision.  However, it is clear as noon day  

that the appellants, neither in their initial rounds before the  

tribunal nor before the High Court, ever claimed any  

appointment with retrospective effect.  In fact, the direction of the  

in respect of appellant No. 4 in the OA preferred by the appellant  

No. 4 was absolutely crystal clear that it would be prospective.  

The said order was accepted by the said appellant.  However, as  

is manifest, after the decision was rendered by the Punjab and

Page 12

12

Haryana High Court wisdom dawned or at least  they perceived  

so, and  approached the Principal Bench for grant of similar  

reliefs.  In the petition before the tribunal, they had stated in  

their factual portion which are to the following effect: -

“(n) That since at the time of filing writ by  applicant/petitioner Nos. 1,2 and 3 and an O.A.  by applicant/petitioner No. 4, the issue of  entitlement to anti-dating appointment and back  wages was under adjudication before the Hon’ble  High Court of Punjab and Haryana in the case of  Parveen Singh & Ors., the applicants/petitioners  in the present O.A. did not seek such relief in  their respective writ and O.A.

(o) That when the High Court upheld the orders  of the tribunal in case of Parveen Singh & Ors.,  that they are entitled to the benefit of anti-dating  appointment and the consequential benefits, the  applicants/petitioners made individual  representations to the respondents seeking the  benefit of High Court’s judgment dated 12.7.2001  delivered in C.W.P. No. 1156 of 2001.  A true  photocopy of this judgment is already available  as Annexure A-5 at page 22-32 of the O.A.”

17. Thus, it is demonstrable that they did not approach the  

legal forum but awaited for the verdict of the Punjab and  

Haryana High Court.  As far as appellant No. 4 is concerned, we  

really see no justifiable reason on his part to join the other  

appellants when he had acceded to the first judgment passed in  

his favour to a limited extent by the tribunal.  This was an  

ambitious effort but it is to be borne in mind that all ambitions

Page 13

13

are neither praiseworthy nor have the sanction of law.  Be that as  

it may, they approached the tribunal some time only in 2004.  

The only justification given for the delay was that they had been  

making representations and when the said benefit was declined  

by communication dated 31.7.2004, they moved the tribunal.  

The learned senior counsel for the appellants fairly stated that as  

the doctrine of parity gets attracted, they may only be conferred  

the benefit of seniority so that their promotions are not affected.   

18. It is necessary to keep in mind that claim for the seniority is  

to be put forth within a reasonable period of time.  In this  

context, we may refer to the decision of this Court in P.S.  

Sadasivaswamy v. State of Tamil Nadu5, wherein a two-Judge  

Bench has held thus: -

“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 stand by and allow things to happen  and then approach the courts to put forward  stale claims and try to unsettle matters.”

5 AIR 1974 SC 2271

Page 14

14

19. In Karnataka Power Corporation Ltd. & Anr. v. K.  

Thangappan & Anr.6 this Court had held thus that delay or  

laches is one of the factors which is to be borne in mind by the  

High Court when they exercise their discretionary powers under  

Article 226 of the Constitution.  In an appropriate case the High  

Court may refuse to invoke its extraordinary powers if there is  

such negligence or omission on the part of the applicant to assert  

his right as taken in conjunction with the lapse of time and other  

circumstances, causes prejudice to the opposite party.  Even  

where fundamental right is involved the matter is still within the  

discretion of the Court as pointed out in Durga Prasad v. Chief  

Controller of Imports and Exports (AIR 1970 SC 769).  Of course,  

the discretion has to be exercised judicially and reasonably.

20. In City Industrial Development Corporation v. Dosu  

Aardeshir Bhiwandiwala & Ors.7 this Court has opined that  

one of the grounds for refusing relief is that the person  

approaching the High Court is guilty of unexplained delay and  

the laches.  Inordinate delay in moving the court for a Writ is an  

adequate ground for refusing a Writ.  The principle is that courts  

exercising public law jurisdiction do not encourage agitation of  

6 AIR 2006 SC 1581 7 AIR 2009 SC 571

Page 15

15

stale claims and exhuming matters where the rights of third  

parties may have accrued in the interregnum.

21. From the aforesaid pronouncement of law, it is manifest  

that a litigant who invokes the jurisdiction of a court for claiming  

seniority, it is obligatory on his part to come to the court at the  

earliest or at least within a reasonable span of time.  The belated  

approach is impermissible as in the meantime interest of third  

parties gets ripened and further interference after enormous  

delay is likely to usher in a state of anarchy.  

22. The acts done during the interregnum are to be kept in  

mind and should not be lightly brushed aside.  It becomes an  

obligation to take into consideration the balance of justice or  

injustice in entertaining the petition or declining it on the ground  

of delay and laches.  It is a matter of great significance that at  

one point of time equity that existed in favour of one melts into  

total insignificance and paves the path of extinction with the  

passage of time.

23.  In the case at hand, as the factual matrix reveals, the  

appellants knew about the approach by Parveen Singh and  

others before the tribunal and the directions given by the

Page 16

16

tribunal but they chose to wait and to reap the benefit only after  

the verdict.  This kind of waiting is totally unwarranted.   

24. Presently we shall refer to the authorities commended by  

the learned senior counsel for the appellants.  In K.C. Sharma  

(supra) the factual scenario was absolutely different and thus,  

distinguishable.  In C. Lalitha (supra) it has been held that  

justice demands that a person should not be allowed to derive  

any undue advantage over other employees.  The concept of  

justice is that one should get what is due to him or her in law.  

The concept of justice cannot be stretched so as to cause heart-

burning to more meritorious candidates.  In our considered  

opinion, the said decision does not buttress the case of the  

appellants.  

25. In Maharaj Krishan Bhat (supra), the appellants had  

made a representation on 8.1.1987.  A similar representation was  

sent by one Abdul Rashid on that date to the Hon’ble Chief  

Minister of State of Jammu and Kashmir with a request to  

consider the case for appointment to the post of PSI by granting  

necessary relaxation in rules against 50% direct recruitment  

quota.  The Director General of Police vide his letter dated

Page 17

17

23.1.1987 recommended the name of Hamidullah Dar, one of the  

applicants, for appointment and he was appointed as PSI vide  

order dated 1.4.1987.  The other appellants were not extended  

the benefit of appointment.  Under those circumstances the High  

Court of Jammu and Kashmir in SWP No. 351 of 1987 directed  

the Director General of Police to consider the case of the  

appellants.  Thereafter Abdul Rashid filed a similar petition  

which was admitted.  Pursuant to the direction of the High Court  

the Director General of Police considered the applications of  

Mohd. Abbas and Mohd. Amim but rejected the prayer on  

13.12.1991.  When the matter of Abdul Rashid, the appellant,  

came up the learned single Judge allowed the writ petition relying  

on the earlier judgment.  The Government of Jammu and  

Kashmir filed Letters Patent Appeal which was dismissed.  In the  

context, this Court opined that the Division Bench should not  

have refused to follow the judgment by another Division Bench.  

Attention was raised that initial violation was committed by the  

State Government and which was violative of Articles of 14 and  

16 of the Constitution and the said mistake could not be  

perpetuated.  In that context it was held as follows: -

Page 18

18

“21. It was no doubt contended by the learned  counsel for the respondent State that Article 14  or 16 of the Constitution cannot be invoked and  pressed into service to perpetuate illegality.  It  was submitted that if one illegal action is taken, a  person whose case is similar, cannot invoke  Article 14 or 16 and demand similar relief  illegally or against a statute.”

Thereafter the Bench proceeded to state as follows: -

“23. In fairness and in view of the fact that the  decision in Abdul Rashid Rather had attained  finality, the State authorities ought to have  gracefully accepted the decision by granting  similar benefits to the present writ petitioners.  It,  however, challenged the order passed by the  Single Judge.  The Division Bench of the High  Court ought to have dismissed the letters patent  appeal by affirming the order of the Single Judge.  The letters patent appeal, however, was allowed  by the Division Bench and the judgment and  order of the learned Single Judge was set aside.  In our considered view, the order passed by the  learned Single Judge was legal, proper and in  furtherance of justice, equity and fairness in  action.  The said order, therefore, deserves to be  restored.”

26. We respectfully concur with the said observations but we  

cannot be oblivious of the fact that the fact situation in that case  

was totally different.  Hence, the said decision is not applicable to  

the case at hand.

Page 19

19

27. In the case at hand it is evident that the appellants had  

slept over their rights as they perceived waiting for the judgment  

of the Punjab and Haryana High Court would arrest time and  

thereafter further consumed time submitting representations and  

eventually approached the tribunal after quite a span of time.  In  

the meantime, the beneficiaries of Punjab and Haryana High  

Court, as we have been apprised, have been promoted to the  

higher posts.  To put the clock back at this stage and disturb the  

seniority position would be extremely inequitable and hence, the  

tribunal and the High Court have correctly declined to exercise  

their jurisdiction.

28. Another aspect needs to be highlighted.  Neither before the  

tribunal nor before the High Court, Parveen Singh and others  

were arrayed as parties.  There is no dispute over the factum that  

they are senior to the appellants and have been conferred the  

benefit of promotion to the higher posts.  In their absence, if any  

direction is issued for fixation of seniority, that is likely to  

jeopardise their interest.  When they have not been impleaded as  

parties such a relief is difficult to grant.  In this context we may

Page 20

20

refer with profit to the decision in Indu Shekhar Singh & Ors.  

v. State of U.P. & Ors.8 wherein it has been held thus: -

“There is another aspect of the matter.  The  appellants herein were not joined as parties in  the writ petition filed by the respondents.  In  their absence, the High Court could not have  determined the question of inter se seniority.”

29. In Public Service Commission, Uttaranchal v. Mamta  

Bisht & Ors.9 this Court while dealing with the concept of  

necessary parties and the effect of non-impleadment of such a  

party in the matter when the selection process is assailed  

observed thus: -

“7. ……. In Udit Narain Singh Malpaharia v.  Additional Member, Board of Revenue, Bihar &  Anr., AIR 1963 SC 786, wherein the Court has  explained the distinction between necessary  party, proper party and proforma party and  further held 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 ignore the  said order as it has been passed in violation of  the principles of natural justice.  More so, proviso  to Order I, Rule IX of Code of Civil Procedure,  1908 (hereinafter called CPC) provide that non- joinder of necessary party be fatal.  Undoubtedly,  provisions of CPC are not applicable in writ  jurisdiction by virtue of the provision of Section  141, CPC but the principles enshrined therein  are applicable. (Vide Gulabchand Chhotalal  Parikh v. State of Gujarat; AIR 1965 SC 1153;  Babubhai Muljibhai Patel v. Nandlal, Khodidas  

8 AIR 2006 SC 2432 9 AIR 2010 SC 2613

Page 21

21

Barat & Ors., AIR 1974 SC 2105; and Sarguja  Transport Service v. State Transport Appellate  Tribunal, Gwalior & Ors. AIR 1987 SC 88).

8. In Prabodh Verma & Ors. v. State of U.P. &  Ors. AIR 1985 SC 167; and Tridip Kumar Dingal  & Ors. v. State of West Bengal & Ors. (2009) 1  SCC 768 : (AIR 2008 SC (Supp) 824), it has been  held that if a person challenges the selection  process, successful candidates or at least some of  them are necessary parties.”

30. From the aforesaid enunciation of law there cannot be any  

trace of doubt that an affected party has to be impleaded so that  

the doctrine of audi alteram partem is not put into any hazard.

31. Analysed on the aforesaid premised reasons, we do not see  

any merit in these appeals and, accordingly, they are dismissed  

with no order as to costs.

............................................J.                                                    [Dr. B. S.  

Chauhan]

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

New Delhi; May 25, 2012