Supreme Court of India
H.C. KULWANT SINGH & ORS.versusH.C. DAYA RAM & ORS.
- Citation
- 2014 INSC 423
- Decided
- 30 June 2014
- Disposal
- Dismissed
- Bench
- ANIL R DAVE
Holding
The tribunal’s orders were unsustainable as they misapplied the rule amendments and, due to non‑impleadment of affected parties, were void; consequently, the High Court’s quashing of those orders was affirmed.
Summary
The case concerned the promotion of constables to head constables under the Punjab Police Rules, 1934, which were amended in 1982 and 1988. The tribunal had held that constables confirmed before the 1988 amendment possessed a vested right to promotion based on seniority, and it ordered a fresh seniority list, which the High Court later quashed. The appellants argued that the tribunal misread earlier precedent and that the respondents, who were not impleaded, could not be bound by the tribunal's orders. The Supreme Court held that the tribunal erred in extending the pre‑amended rule to all vacancies and that non‑impleadment rendered its orders void, affirming the High Court’s quashment. Invoking Article 142, the Court emphasized the need to prevent miscarriage of justice and dismissed the appeal.
Issues considered
- The applicability of the 1982 and 1988 amendments to Punjab Police Rules, 1934, to vacancies for promotion of constables to head constables.
- Whether confirmed constables had a vested right to promotion under the pre‑amended rule.
- The effect of non‑impleadment of respondents on the validity of the tribunal's orders.
- The jurisdiction of the High Court to quash the tribunal's orders despite L. Chandra Kumar.
- The scope of the Supreme Court’s power under Article 142 to do complete justice.
Legislation cited
- Constitution of Indias. Article 136, s. Article 142, s. Article 226, s. Article 227
- Police Act, 1861s. Section 46
- Punjab Police Rules, 1934s. Rule 13.7, s. Rule 13.8
Subjects
promotionservice lawPunjab Police Rulesvacancysenioritynatural justicenon-impleadmentArticle 142tribunalvested right
Judgment
• [2014) 11 S.C.R. 1053
· H.C, KULWANT SINGH & ORS. A
v.
H.C. DAYA RAM & ORS.
· (Civil Appeal No. 5859 of 2014)
JUNE 30, 2014
B
[ANIL R. DAVE AND DIPAK MISRA, JJ.]
Service Law:
Punjab Police Rules, 1934 - r. 13. 7, 13. 8 - Promotion c
of Constables to the rank of Head Constables - Rules
pertaining to eligibility criteria for promotion changed by first
amended Rules - Said Rules again changed by _.second
amended Rules - Constables to be governed by first
amended Rules or second amended Rules - Held: On facts, D
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 latter . E
decision which completely misread the earlier decision and
erroneously observed that every confirmed employee had a
vested right, is unsustainable - Tribunal did not appreciate
that the right was restricted to the accrued vacancies - It was
open to the department to take steps in accordance. with the
amended Rule in respect of vacancies to the post" of Head F
Constables which might have accrued SL!bsequent to the
coming into force of the amended Rules which may fall vacant
thereafter - If that order is allowed to reign it would have
disastrous impact on justice and would tantamount to
miscarriage of justice - High Court rightly quashed the said G
order - Constitution of India, 1950 - Article 142.
Practice and procedure - Necessary party - Non-
impleadment - Effect of - Held: When by the determination
1053 H
1054 . SUPREME COURT REPORTS [2014] 11 S.C.R.
"'
•
.A of the tribunal the rights of the parties had squarely been
affectf;d, the situation commanded that they should have been
impleaded being necessary parties - Non-impleadment
permit!$ them to take the plea that the said order does not bind
them - Plea. ·
B
Dismissing the appeal, the Court
HELD: 1.1. 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 by directing to prepare
C a fresh list of Constables for sending to Lower School
Course 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
further clarified that it is open to the respondent to act in
D accordance with the amended Rule in respect of the
vacancies/posts of Head Co'nstables which may have
occurred subsequent to coming into force of the
amended Rule. [Para 33] [1086-E-G]
E· 1.2. 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. The
facet of non-impleadment_ has two limbs. First, the mere
awareness of pendency of litigation because it is
F 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 ail the respondent were sent for Lower
School Course and promoted and, therefore, they were
clearly identified as the ultimately affected parties and
G hence, were necessary parties for the purpose of
adjudication of the lis. [Para 39] [1089-8-E]
1.3. In the instant case, the authorities did not accept
the order ·but challenged the same before this Court and .
H
• H.C. KULWANT SINGH v. H.C. DAYA RAM 1055
this Court disposed of the same in '1996 by observing A
that as the respondents therein had already completed
their training, the SLP 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 B
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, which gave rise to the order dated 8.1.1990, they c
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.
0
It was not a vague or unidentified body. When by the
determination of the.tribunal their rights had squarely
been affected, the situation commanded that they should
have been impleaded being necessary parties and their
non-impleadment now permits them to take the plea that E
the said order does not bind them. The High Court
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 F
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.[Para 44] [1091-G;
1092-A~G] G
1.4. The order dated 8.1.1990 is based entirely on the
earlier order dated 28.9.1988 which was rendered by the
tribunal being approached by the real aggrieved parties
H
1056 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A and the tribunal relying on binding precedents, had held
that the applicants therein were entitled to be considered
unde·r the amended Rule that came into force on 4.3.1982 ·
in respect of the vacancies accrued during the pe'riod,'
i.e., 4.3.1982 to 17.6.1988. The latter decision dated
B 8.1.1990 completely misread the said decision and
erroneously observed that every confirmed employee
had a vested right. It did not properly a.ppreciate that the
right was restricted to the accrued vacancies and
assumedly remained oblivious to the categorical findings
C 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. The order dated 8.1.1990 is absolutely
0
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. Interference with the decision of the High Court
would perpetuate grave injustice and the redemption
E shall remain forever a mirage [Para 45, 46, 47] [1092-G-
H; 1093-A-E; 1094-E] .
1.5. The obtaining fact situation commands that this
Court should invoke the jurisdiction under Article 142 of
F the Constitution for doing complete justice. In the instant
case, 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
G tribunal had not kept itself alive to the essential facts,
n;imely, publication of results, selection of candidates <:1
and the impact it would have on their rights if they are
not made parties. Considering all the aspects (n a
cumulative manner it can be stated with certitude that' if''!'.'
H that order is allowed to reign it would have disastrous '·'
• H.C. KULWANT SINGH v. H.C. DAYA RAM 1057
impact on justice and would tantamount to miscarriage A
of justice. The High Court, while 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 by invoking jurisdiction under Article 142(1)
of the Constitution, non-affirmance of the order of the B
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 c
said order deserved quashment and the High Court has
rightly done so. [Para 48] [1094-F; 1095-B-F]
Y. V. Rangaiah and others v. J. ·Sreenivasa Rao & ors.
AIR 1983 SC 852; P. Ganeshwar Rao and others v. State of
Andhra Pradesh and others 1988 Suppl. SCR 805 :1988 D
(Supp) SCC 740; Om Parkash v. Delhi Administration and
others 1988 (2) AISJ 133; L. Chandra Kumar v. Union of India
and others 1997 (2) SCR 1186 :(1997) 3 SCC 261; State
of Rajasthan v. R. Dayal and others 1997 (2) SCR
108 :(1997) 10 SCC 419; B.L. Gupta and Anr. v. MCD (1968) E
9 SCC 223; Atjun Singh Rathore and Ors. v. B.N. Chaturvedi
and Ors. 2001 (11) SCR 320 : (2007) 11 sec 605; A.M.S.
Sushanth & Ors. v. M Sujatha and Ors. (2000) 10 SCC 197;
M. V. Ravindranath & Ors. v. Union of India & Ors. (2000) 10
SCC 474; State of Assam v. Union of India & Ors. 2010 (12 F
) SCR 413 : (2010) 10 SCC 408; Public Service
Commission, Uttaranchal v. Mamta Bisht & Ors. 2010 (7 )
SCR 289: (2010) 12 SCC 204; K.R.C.S. Balakrishna Chetty
& Sons & Co. v. State of Madras 1961 (2) SCR 736; Union
of India & Ors. v. Brigadier P.S. Gill 2012 (2) SCR 571 : G
(2012) 4 SCC 463; Khetrabasi Biswal·v. Ajaya Kumar Baral
& Ors. 2003 (6 ) Suppl. SCR 8 : (2004) 1 sec 317; Shiv
Kumar Tiwari (Dead) by LRs. v. Jagat Narain Rai & Ors.
(2001) 10 SCC 11; State of Himachal Pradesh & Anr. v.
Kai/ash Chand Mahajan & Ors. 1992 (1). SCR 917 :,1992 H
1058 SUPREME COURT REPORTS [2014) 11 S.C.R.
•
A Supp (2) SCC 351; State of Bihar and Ors. v. Kameshwar
Prasad Singh & Ors. 2000 (3) SCR 764: (2000) 9 SCC 94;
Jamshed Horuwsji Wadia v. Board of Trustees, Port of
Mumbai & Arir. 2004 (1) SCR 483: (2004) 3 SCC 214; K.
Ajit Babu and Ors. v. Union of India and Ors. 1997 (3) Suppl.
B SCR 56 :(1997) 6 SCC 473; Rama Rao & Ors. v. M.G.
Maheshwara Rao & Ors. 2007 (9) SCR 446:(2007) 14 SCC
54; Udit Narain Singh Malpaharia v. Board. of Revenue 1963
Suppl. SCR 676: AIR 1963 SC 786; Prabodh Verma &
Ors. v. State of U.P. & Ors 1985 (1) SCR 216 :(1984) 4 SCC
c 25f; Tridip Kumar Dingal & Ors. v. State of WB. & Ors. 2008
(15) SCR 194 :(2009) 1 SCC 768 - referred to.
I
Case Law Reference:
AIR 1983 SC 852 Referred to Para 5, 16,
D 20
1988 Suppl. SCR 805 Referred to Para 5, 20,
1988 (2) AISJ 133 Referred to Para 5
1997 (2) SCR 1186 Referred to Para 19, 20,
E 39, 43
1997 (2) SCR 108 . Referred to Para 20
(1968) 9 sec 223 Referred to Para 20
2007 (11) SCR 320 Referred to Para 20
F
'
(2000) 10 sec 191 Referred to Para 20
(2000) 10 sec 474 Referred to Para 20
2010 (12) SCR 413 Referred to Para 20
G 2010 (7) SCR 289 Referred to Para 20
1961 (2) SCR 736 · Referred to Para 20
2012 (2 ) SCR 571 Referred to Para 20
H 2003 (6) Suppl. SCR 8 Referred to Para 20
• H.C. KULWANT SINGH v. H.C. DAYA RAM 1059
(2001) 10 sec 11 Referred to Para 20 A
1992 (1) SCR 917 Referred to Para 20
2000 (3) SCR 764 Referred to Para 20.
2004 (1) SCR 483 Referred to Para 20
B
1997 (3) Suppl. SCR 56 Referred to - Para 20
2007 (9) SCR 446 Referred to Para 20
1963 Suppl. SCR 676 Referred to Para 43
c
1985 (1) SCR 216 Referred to. Para 43
2008 (15) SCR 194 Referred to Para 43
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
_5859 of 2014. D
From the Judgment and Order dated 18.12.2007 in CWP
No. 16550 of 1998 of the High Court of Punjab & Haryana at
Chandigarh.
P. S. Patwalia, Ashok K. Mahajan for the appellants. E
Nidhesh Gupta, Nidhi Gupta, Tarun Gupta, S. Janani,
Gaurav M. Librehan, Janani, Mukti Chowdhary for the
respondents.
The Judgment of the Court was delivered by F
DIPAK MISRA, J. 1. Leave granted.
2. In this appeal, by special leave, apart from interpreting
the precise connotative effect of Punjab Police Rules, 1934 (for G
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 tre said
amendments vide amendment dated 6.2.1988, we have also H
1060 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 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
B 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 iseniority
rules and not to revert any Head Constable or the Assistant
c 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
iurisdiction in its appreciation and application of well settled
principles that would make the order pregnable inviting its
extinction. ·
D
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 Po.lice by
the Union Territory, Chandigarh and they are governed by the
E 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 amEmdment
of the Rule on 4.3.1982, provided that the names of Police
Constables for admission to Lower School Course were
F 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
G School Course at Police Training College, Phillaur. The said
· cour5e 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 Comse in April, 1988. Thereafter
H
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1061
vide notification dated 17.6.1988 the Rule 13.7 was amended A
by Punjab Police (Chandigarh Amendment) Rules, 1988 which
came into force on the date of publication in the Chandigarh
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 B
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 0.A. No. 51 O-CH/88 before the tribunal C
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 D
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 E
sanctioned from which date the amended Rule came into force,
and as against 71 posts, 15 Constables were sent 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 F
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 G
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 H
1062 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A others v. J. Sreenivasa Rao & ors.' 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
Paikash v. Delhi Administration and others 3 and,
accordingly quashed the order dated 27.6.1988 and directed
B 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 ·
c 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 vacaneies/posts of Head
Constables which may have occurred subsequent to the coming
0
into force of the am.ended Rule or which may fall vacant
thereafter.
6. The competent authorities of Union Territory identified
those vacancies of Head Constables which had occurred prior
E 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 provisions of unamendedRule 13.7 and other
formalities were carried out. '
F
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
G 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
1. AIR 1983 SC 852.
2. 1988 (Supp) sec 740.
H 3. 1988 (2) AISJ 133.
• H.C. KULWANT SINGH v. H.C. DAYARAM
[DIPAK MISRA, J.]
1063
Original Applications, i.e., O.A. Nos. 697/CH/88, 872/CH/88 and A
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 th.e 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 B
31.3.1989 dealt with the interim prayer and directed as folloiNs:
"Regarding fnterim 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
c
shortage of the Head Constables and the balance of
convenience is that the Chandigarh 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 D
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 E
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 F
2.2 ..1989 in pursuance of unamended PPR 13.7 and 41
Constables declared qualified in the Bc1 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 ~onstables in pursuance of amended G
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
H
1064 SUPREME COURT REPORTS [2014] 11 ·S.C.R. •
A of Rule 13.8(2) of 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
B 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
C the Rule position as engrafted ir) 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
D 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 impu.gned amendment of Rule 13.7 of Rules of
E 1934, on 17.6.1988 the applica'nts 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
F promotion to the post of Head Constable in accordance with
the criterion prescribed by the unameRded 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
G 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 vestectright under the pre-amended Rule as confirmed
H
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.)
1065
Constables and whether they had been deprived of the said A
vested right and came to hold that in case the selection of the
applicants was allowed to be made for the promotional 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 B
·confirmation and seniority which right had become ari 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 C
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 D
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 E
School Course training even on the basis of the 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 F
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 G
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 H
1066 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 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
B judgment, the final decision rendered by the tribunal on 9.1.1990
wherein the tribunal had 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 ·
c 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
D 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 !waining.
E 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 written.~xamination, irrespective.
F 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
G 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
l
H
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1067
the respondents according to their basic seniority in the rank A
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 8
question the justifiability of the order dated 8.1.1990. The High
Court referred to the order of the tribunal in QA 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 the Constables.were sent for training on C.
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 relian.ce on the decision dated
8.1.1990 in QA No. 137/CH/89 (Mewa Singh and others v.
Chandigarh Administration) wherein it was held that the pre- D
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 E
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 F
required to be ~lied 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, the
Constables were ~equired to be sent for Lower School Course
on the basis of seniority Rule and for all other posts the test, G
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 H
1068 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A was hit by doctrine of delay and laches; that the petitioners were
aware of the pendency of the case before the tribu"nal 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
B lapse of eight years.
16. The High Court repelled the contention relating to delay
and laches on the ground thal 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
C had undergone Lower School Course and this Court had left
the question of law open for consideration in appropriate case;_
and that the ultimate 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
D 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
E 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
F of seniority Rule; and that all other vacancies were required to
be filled on the basis of test Rule incorporated vic;le 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:-
G
"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 as per
H
'
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1069
Rule existed on the date of appointment or confirmati6n. A
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 'B
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 c
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
0
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 E
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. F
Such Head Constable or Assistant Sub Inspector shall continue
to discharge his/her duties but shall avail further promotion only G
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
H
respondents 36 to 38.
1070 SUPREME COURT Rl:PORTS [2014) 11 S.C.R. •
A 19. Criticising the judgment and order passed by the High
Court Mr. Patwalia has raised the following contentions: -
I
(A) There is manifest legal infirmity in the order
inasmuch as the High Court has entertained the writ
B 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 others".
(B) The order of the tribunal dated 23.9.1998 being
c founded on directions given on 8.1.1990 could not
have been found fault with by the High Court. That
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
D of delay and !aches 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
E
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
F 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
G 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
H 4. (1997) 3 sec 261.
• H.C. KULWANT SINGH v. H.C. DAYA RAM
, . [DIPAK MISRA, J.]
1071
following from the said training were subject to the A
· final decision of the original application.
20. Mr. Gupta, learned senior counsel appearing for the
affected respondents, in oppugnation, has canvassed as
follows: -
B
(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 C
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 others,5 B.L. Gupta D
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 principies laid E
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
F
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 G
5. (1997) 10 sec 419.
e. (1998) 9 sec 223.
1. (2001) 11 sec 605. H
1072 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 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
.B 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 order. The said
c submission is supported by the authorities in
A.M.S. Sushanth & Ors. v. M. Sujatha and
Ors. 8, M. V. Ravindra'nath & Ors. v. Union of
india & Ors. 9, State of Assam v. Union of India
& Ors 10• and Public Sflrvice Commission,
Uttaranchal v. Mamta Bisht & Ors. 11 •
D
' l
(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
E 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 n_ecessary parties is
not altered by their ~eing aware of pending
F 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 reflect the mandate of
G requirement of law. Quite apart from that, when by
virtue of the interim order passed by the tribunal
- ------
8. (2000) 10 sec 197.
9. c2000) 10 sec 474.
10. (2010) 10 sec 408.
H 11. (2010) 12 sec 204.
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1073
they were promoted, they became neces_sary A
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. B
Brigadier P.S. Gil/1 3, Khetrabasi Biswal v. Ajaya
Kumar Baral & Ors14• 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 C
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 D
the said principle gets support from State of
Himachal Pradesh & Anr. v. Kailash Chand
Mahajan & Ors. 16 •
The tribunal was approached by the present E
(e)
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 F
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
_ _ _ _q_u_e_stion of law open; and as the same has .arisen . G
12. 1961 (2) SCR 736.
13. c2012) 4 sec 463.
14. (2004) 1 sec 311.
15. c2001) 10 sec 11 ..
16. 1992 supp (2) sec 351. H
1074 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 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 Or:s. v. Kameshwar Prasad Singh &
B Ors17 • and Jamshed Hormusji Wadia v. Board of
Trustees, Port of Mumbai & Anr. 16 •
(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
c 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 niore meritorious than the
D appellants as they were selected in the competitive
test and were deputed to the Lower School Course
and they had obtaine~ the higher marks than the
appellants. Quite apart from that they have been
promoted to Assistant Sub-Inspectors, Sub-
E Inspectors and furth.er 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
F decision in L. Chandra 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
G quashed the order dated 23.9.1998, which is based
on the principle stated in K. Ajit Babu and Ors. v.
17. c2000) g sec 94.
H 1s. (2004) 3 sec 214.
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1075
Union of India .and Ors19• and Rama Rao & Ors. A
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
B
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 C
the matter was sub-judice before the High Court. It is asserted
that in compliance with the 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 D
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 E
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
F
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 G
Constables selected for admission to the Promotion
Course for Constables at the Police Training College.
19. (1997) s sec 473.
20. (2007) 14 sec 54.
H
1076 SUPREME COURT REPORTS · (2014] 11 S.C.R. •
A 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 reserve. Names
will be entered in the list in order of merit determined by
the Departmental Promotion Committee constituted by the
B 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 -
c
(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
D
(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
E 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 compet.e again with the new candidates,
G 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
H others.
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.)
1077
(4) No Constable who has failed to qualify in the promotion A
course for Constables shall be readmitted 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 Superintendent of Police B
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 C
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 eligibfe for D •
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 ~as worked, on his E
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 · F
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 G
comprising qualifications. In cases where other
qualifications are equal, seniority in the police 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,
H
1078
I
SUPREME COURT REPORTS [2014] 11 S.C.R
•
A 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
8
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:-
.c "No. 16628-Hll(l)-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,
.. D 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.
E
List B. Selection for (1) List B (in Form 13. 7) shall
Admission to promotion be maintained by
course for constables at Superintendent of Police. It
the Police Training will include the names of
F College. constables considered
suitable as candidates for
·admission to the promotion
course at the Police Training
College .
.
G 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
H
• I
H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1079
to the promotion course and the constables shall be sent A
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:
B
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.
c
(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 D
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 E
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
F
• Principal, Police 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 G
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 H
1080 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A determined by the Departmental Promotion Committee. The
notification incorporating the amendment reads as follows: -
"No. 1/13/2/88-Hll (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
B
(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,
c 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
D publication in the Chandigarh Administration Gazette.
3. In the Punjab Police Rules 1934 (hereinafter referred to
as the.said Rules) for rule 13.7 the following shall be
substituted, namely: -
E
13.7 (1)
List B. Selection for (1) List-'B' (in Form 13.7)
Admission to promotion shall be maintained by
course for constables at Superintendent of Police. It
F the Police T!aining will include the names of all
College. constables selected for
.admission to the promotion
course for candidates at the
Police Training College.
G
Sel~ction shall be made in the month of January each year
and will be limited to the number of seats available for the
H '
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1081
_year with a 20 per cent reserve. Names will be entered in A
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: - B
(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 C
(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 D
their names entered on the aforesaid list.
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 E
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. F
(3) Temporary Constables brought on list 'B' shall be
absorbed ii) the regular establishment in preference to
others.
(4) No Constable who has failed to qualify in the promotion G
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." H
1082 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A 26. Having reproduced the Rules ii is necessary to
understand what ii 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
B course for Constables in the Polide 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
Constables, subject to certain eligibility, were entitled to have
c their names enterec! 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. II is called List 'C'. To acquire
the eliQibility for consideration for promotion to Head Constable,
a Constable is required to pass the Lower School Course at
Philiam. The procedure for promotion has to be made in
0
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
E consideration in comprising qualifications. It further prescribes
that ·in cases where other qualifications are equal, s1~niority 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
F by Superintendent of Police which would include the names of
constables considered suitable as candidates for admission
to the promotion course at the Police Training College. It
categorically postulated that there Shall be no test for the
Constables for admission to !be promotion course and the
G Co.nslables 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
H of certain senior most temporary Constables fulfilling all other
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1083
conditions; that he should have put in more than three years A
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.
B
28. In the case at hand, we are really concerned with the
interregnum period between 4.3.1982 and 17 .6.1988. The
tribun51I, 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 C
required to prepare a fresh list 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 D
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 E
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 F
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.
29. Thus, the decision of the tribunal, on the first round, G
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
H
1084 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
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
B who fulfilled the prescribed conditions to sit in the competitive
examination to be held in January, 1989. Th~ said action of the
authorities compelled the present applicants to file three
Original Applications challenging th.e validity of the Rule and
quashment of the order dated 28.1O~1988 whereby the list was·
c 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 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
0
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
E 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 oonfirmed Constables and they had been deprived of the
said vested right. Elaborating further the tribunal opined that: -
F
"In case the selection of the applicants is allowed to be
made for t~e 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
.G 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
H
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1085
introducing the amendment through the impugned A
notification."
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 B
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 C
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] o
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 E
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 be F
sent for training for promotion to Head Constables on the basis
of unamended Rules. Be ii 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 ingemiqated, in the earlier order G
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. H
1086 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 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.
B larger Bench, while opining tharthe question on which the.
tribunals have jurisdiction to decide its decision would be
subject to scrutiny before the Division Bench of the respective.
High Courts, observed that the directions issued in the said
case would come into effect prospectively, i.e., it would apply.
c to decisions rendered after March 18, 1997, i.e., the date the
decision in L. Chandra Kumarwas 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 renctered.
D 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:-
E 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
F Rule as far as vacancies of Head Constables which had come
into existence prior to notification dated 17.6.1988. It had 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
G 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).
H
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1087
34." In P. Ganeshwar Rao (supra) the Court reproduced A
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 B
the date on which the amendment came into force or whether
it applied to the vacan'cies 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.. The ratio of the c
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 D
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 E
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 F
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 G
judgment above-cited. This Court has specifically laid that
the vacancies which occurred prior to the amendment of
the Rules 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
H
1088 SUPREME COURT REPORTS
I
[2014] 11 S.C.R.
•
'
A 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."
B '
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 Education 2' 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
C ·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
D 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 tlfuunal clearly meant that.
38. In Mewa Singh's case, the tribunal opined that the
E selection of the Constables for the promotional course who
were already in service before the amendmentof 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 thai the 'confirmed employees had
F a vested right to be considered under the pre-amended rule.
In the said case th.e 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
G 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
H 21. (1983) 3 SC 33.
• H.C. KULWANT SINGH v. H.C. DAYA RAM
.[DIPAK MISRA, J.]
1089
tra_ining on the basis of written test and the consequent order A
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.
B
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 aga[nst C
such an order in view of L. Chandra Kumar (supra). First, we
will look at the facet of rion-impleadment which ~as been
highlighted by Mr. Gupta. The said submission has two limbs.
First, the mere awareness of pendency of litigation because it
is mentioned "subject tb decision in Original Application" does
not make the order binding upon them and the second, by the D
time the judgment dated 8.1.1990 was pronounced all the
respondentwere 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. E
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 case Orissa Public
Service Commission had issued an advertisement inviting F
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 G
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.
H
1090 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 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
B 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
directions issued by the High Court offers of appointment were
issued by the State Government in terms of the list prepared
c by the High Court. The ~ppellants 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 C::ourt
0
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
E 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
F 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 it concerns the rights of parties and such proceedings
G 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
H
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1091
pain of distress when in law he could also legitimately ignore A
the said judgment as it is a judgment of no value.
42. In Kai/ash 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
8
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 C
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. Reliance
was placed on Prabodh Verma & Ors. v. State of U.P. &
Ors23 • and Tridip Kumar Dingal & Ors. v. State of W.B. & D
Ors24 • 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 E
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 F
a contention that their non-impleadment [flakes 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 the case at hand, G
the authorities did not accept the order but challenged the same
22. AIR 1963 SC 786.
23. (1984) 4 sec 251.
24. (2009) 1 sec 768. H
1092 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 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
8 factual matrix would reveal th'at 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 ori:ler was passed
on 23.9.1998. Had the respondents been made parties to the
c 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
0
identified category. It was not a vague or unidentified body.
When by the determination of the tribunal their 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
E 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
F the High Court from the order dated 23.9.1998 it was within its
domain to declare t~at 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.
G
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
H approached by the real aggrieved parties and the tribunal
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
relying on binding precedents, had held that the applicants
1093
A
therein were entitled to be 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 B
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 c
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 D
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), wherein the Court referring to the power under
Article 136 has opined thus: - E
"... 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 F
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,
F
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 H
1094 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A 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
B 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
ble.eds for imparting justice or undoing injustice. The
c 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 being, .
D
perpetuated just for the sake of upholding technicalities." · 1
' ; . '
47. We respectfully concur~ith the above observation and_,.
conclude that our interference with the decision of the High
Court would perpetuate grave injustice and the redemption shall
1
E 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'. ·
F doubt that Articla 142 of the Constitution confers immense ···
powers on this Court to do complete justice iri a case: for the "
1
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
G 142 of the Constitution are inherent in the Court and are ::J
complementary to the powera which are specifically conferred ..
~ . ~· •• '..j
on the Court. This inherent 'power is required to be exer,cise;d_,._
to prevent injustice and to do :complete justice between t~e., 1
parties. It cannot allow· any injustice to be carried on if the
injustice is founded on certain technical principles. The Court ·
H
• H.C. KULWANT SINGH v. H.C. DAYA RAM
[DIPAK MISRA, J.]
1095
is not to build a new structure to do the complete justice by A
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 B
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, ttiot.igh
seems to have relied upon Achhar Chand's case, has totally
misunderstood the ratio laid down therein. That apart, the c
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 D
have disastrous impact on justice and would irrefragably
tantamount to miscarriage of justice. We have already opined
that the High Court, while 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) E
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 F
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 G
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.
Nidhi Jain Appeal dismissed.
H
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