Supreme Court of India
STATE OF UTTAR PRADESH & ORS.versusARVIND KUMAR SRIVASTAVA & ORS.
- Citation
- 2014 INSC 735
- Decided
- 17 October 2014
- Disposal
- Appeal(s) allowed
- Bench
- JASTI CHELAMESWAR
Holding
While the normal rule is to extend relief to all similarly situated employees, the benefit cannot be extended where there is unexplained delay, laches, and acquiescence, so the appeal is allowed and the respondents' claim is dismissed.
Summary
The Supreme Court examined whether employees whose appointment orders were cancelled in 1987 could claim the benefit of a later judgment that restored similar employees to service. The respondents waited nine years before filing a claim, arguing that they were similarly situated to those who had earlier obtained relief. The Court reiterated the principle that similarly situated persons should be treated alike under Article 14, but held that this rule is subject to exceptions of laches, delay, and acquiescence. It distinguished between judgments in rem (which bind the authority to extend relief to all similarly situated persons) and judgments in personam (which benefit only the parties before the court). Since the respondents delayed filing, accepted the cancellation, and were not in service, the Court found the benefit could not be extended to them and set aside the Tribunal and High Court orders granting them appointment.
Issues considered
- When should the benefit of a judgment granting relief to a set of employees be extended to other similarly situated employees who did not approach the court earlier?
- Do laches, delay, and acquiescence bar the extension of such benefit?
- How does the distinction between a judgment in rem and a judgment in personam affect the extension of relief?
- Is it appropriate to appoint employees after a long lapse of time (27 years) following cancellation of their appointments?
Legislation cited
Subjects
service lawequalityArticle 14lachesdelayacquiescencejudgment in remjudgment in personamappointment cancellationsimilarly situated persons
Judgment
(2014) 12 S.C.R. 193
STATE OF UTTAR PRADESH & ORS. A
v.
ARVIND KUMAR SRIVASTAVA & ORS.
(Civil Appeal No. 9849 of 2014)
OCTOBER 17, 2014
B
[J. CHELAMESWAR AND A.K. SIKRI, JJ.]
Service jurisprudence - Service matters - Principles to
be applied - Held: When a particular set of employees is
given relief by the court, all other identically situated persons C
need to be treated alike by extending that benefit, or else
would amount to discrimination and would be violative of Art.
14 - However, the principle is subject to exceptions in the
form of /aches and delays as well as acquiescence - Where
judgment of the Court was in rem with intention to give benefit D
to all similarly situated persons, whether they approached the
Court or not, the obligation is cast upon the authorities to itself
extend the benefit thereof to all similarly situated person - And
where judgment was in personam, the benefit of the said
judgment shall accrue to the parties before the court - On E
facts, respondents challenged the cancellation order of their
appointment after a period of nine years, on finding that some
other persons whose appointment orders were also cancelled
had got the relief - There was unexplained delay and /aches
in filing the claim petition after 9 years - Respondents have F
not joined the service nor working like the employees who
succeeded in earlier case before the tribunal -Thus,
respondents cannot be given appointment as of today, after
a period of 27 years.
Allowing the appeal, the Court G
HELD: 1.1 Normal rule is that when a particular set
of employees is given relief by the Court, all other
identically situated persons need to be treated alike by
193 H
194 SUPREME COURT REPORTS (2014] 12 S.C.R.
A extending that benefit. Not doing so would amount to
discrimination and would be violative of Article 14 of the
Constitution of India. This principle needs to be applied
in servi<;e matters more emphatically as the service
jurisprudence evolved by this Court from time to time
B postulates that all similarly situated persons should be
treated similarly. Therefore, the normal rule would be that
merely because other similarly situated persons did not
approach the Court earlier, they are not to be treated
differently. However, this principle is subject to well
c recognized exceptions in the form of laches and delays
as well as acquiescence. Those persons who did not
challenge the wrongful action in their cases and
acquiesced into the same and woke up after long delay
only because of the reason that their counterparts who
D had approached the Court earlier in time succeeded in
their efforts, then such employees cannot claim that the
benefit of the judgment rendered in the case of similarly
situated persons be extended to them. They would be
treated as fence-sitters and laches and delays, and/or the
E acquiescence, would be a valid ground to dismiss their
claim. However, this exception may not apply in those
cases where the judgment pronounced by the Court was
judgment in rem with intention to give benefit to all
similarly situated persons, whether they approached the
Court or not. With such a pronouncement the obligation
F is cast upon the authorities to itself extend the benefit
thereof to all similarly situated person. Such a situation
can occur when the subject matter of the decision
touches upon the policy matters, like scheme of
regularisation. On the other hand, if the judgment of the
G Court was in personam holding that benefit of the said
judgment shall accrue to the parties before the Court and
such an intention is stated expressly in the judgment or
it can be impliedly found out from the tenor and language
of the judgment, those who want to get the benefit of the
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 195
said judgment extended to them shall have to satisfy that A
their petition does not suffer from either laches and
delays or acquiescence. [Para 23] [215-H; 216-A-H; 217-
A-B]
1.2. In the instant case, the selection process took
8
place in the year 1986. Appointment orders were issued
in the year 1987, but were also cancelled vide orders
dated June 22, 1987. The respondents did not challenge
these cancellation orders till the year 1996, i.e. for a period
of 9 years. It means that they had accepted the
cancellation of their appointments. They woke up in the C
year 1996 only after finding that some other persons
whose appointment orders were also cancelled got the
relief. By that time, nine years had passed. The earlier
judgment had granted the relief to the parties before the
Court. These respondents have not joined the service D
nor working like the employees who succeeded in earlier
case before the Tribunal. As of today, 27 years have
passed after the issuance of cancellation orders.
Therefore, not only there was unexplained delay and
laches in filing the claim petition after period of 9 years, E
it would be totally unjust to direct the appointment to give
them the appointment as of today, i.e. after a period of 27
years when most of these respondents would be almost
years of age or above. Tlius, the order of High Court as
well as that of the tribunal set aside. [Para 24] [217-C-G] F
lnder Pal Yadav & Ors. v. Union of India & Ors. 1985 (3)
SCR 837:(1985) 2 SCC 648; KC. Sharma & Ors. v. Union
of India 1997 (3) Suppl. SCR87:(1997) 6 SCC 721; State
of Kamataka & Ors. v. C. Lalitha 2006 (1) SCR 971 : (2006) G
2 SCC 747; N. T. Devin Katti v. Kamataka Public Service
Commission (1990) 3 SCC 157; Maharaj Krishna Bhatt &
Anr. v. State of Jammu & Kashmir 2008 (11 )
SCR 670:(2008) 9 SCC 24; Mis. Rup Diamonds & Ors. v.
Union of India & Ors.1989 (1) SCR 13 :(1989) 2 SCC 356;
H
196 SUPREME COURT REPORTS (2014] 12 S.C.R.
A State of Karnataka & Ors. v. S.M. Kotrayya & Ors. 1996 (5)
Suppl. SCR 426: (1996) 6 SCC 267; S.S. Rathore v. State
of MP. 1989 (1) Suppl. SCR 43:(1989) 4 sec 582; U.P.
Jal Nigam & Anr. v. Jaswant Singh & Anr. 2006 (8 ) Suppl.
SCR 916 :(2006) 11 SCC 464; Harwindra Kumar v. Chief
B Engineer, Karmik 2005 (5) Suppl. SCR 317 :(2005) 13
sec 300 - referred to.
Halsbury's Laws of England para 911, p.395 -
referred to.
c Case Law Reference:
1985 (3) SCR 837 Referred to Para 11
1997 (3) Suppl. SCR 87 Referred to Para 12
2006 (1) SCR 971 Referred to Para 13
D
(1990) 3 sec 151 Referred to Para 14
2008 (11) SCR 670 Referred to Para 15
1989 (1) SCR 13 Referred to Para 17
E
1996 (5) Suppl. SCR 426 Referred to Para 19
1989 (1) Suppl.SCR 43 Referred to Para 19
2006 (8) .Suppl. SCR 916 Referred to Para 20
F 2005 (5) Suppl. SCR 317 Referred to Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9849 of 2014.
From the Judgment and order dated 01.02.2012 in WP
G No. 1988 of 2011 of the High Court of Judicature at Allahabad,
Lucknow Bench.
P. N. Misra, Abhisth Kumar, Sudeep Kumar, Som Raj
Choudhury for the appellants.
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 197
S. R. Singh, Praveen Swarup, Sushma Verma, R.K. A
Singh, Sushant K. Yadav, Mohd. Muztaba, Namita Choudhary,
Puneet Jain, Christi Jain, Khushbu Jain, Chhaya Kirti, Pratibha
Jain for the respondents.
The Judgment of the Court was delivered by B
A.K. SIKRI, J. 1. Leave granted.
2. This appeal, preferred by the State of Uttar Pradesh and
its functionaries, assails the order of the High Court whereby
the writ petition filed by the appellants has been dismissed and C
the order of the Uttar Pradesh Public Services Tribunal,
Lucknow (for short, 'the Tribunal') passed in favour of the
respondents herein, is affirmed.
3. To mention at the outset, the Tribunal as well as the High
0
Court has given the respondents herein benefit of the order
passed by the Court in earlier round of litigation filed by similarly
situated persons. The appellants contend that as far as these
respondents are concerned, they never approached the Court
seeking such a relief and were only fence-sitters and, therefore,
relief should not have been granted to them even if they were E
similarly situated as those persons who have been granted
relief in the petitions filed by them. Respondents, ori the other
hand, contend that once it is found that both sets of persons
are identically placed, the impugned orders granting them the
same benefit are in tune with the constitutional mandate F
enshrined in Article 14 of the Constitution of India.
4. Such a situation has not occurred for the first time in the
present appeal. There are many decisions of this Court. If
outcome alone of those judgments is seen, one would find that G
in some cases the Courts have extended the benefit to the
similarly situated persons, whereas, in some other cases
similar benefit is denied to the second set of people who
approached the Court subsequently. However, on delving deep
into the rationale and reasoning of these two sets of cases, one H
198 SUPREME COURT REPORTS [2014] 12 S.C.R.
A is able to mentally rexognise the logic behind different
outcomes. Under what circumstances such a benefit can be
extended and what are the reasons for denying the same, shall
be discerned after taking note of those judgments. But, before
undertaking that exercise, it would be apt to take note of the
B facts of this case in order to understand and appreciate as to
how the respondents are placed.
5. It was sometime in the year 1986 that the Chief Medical
Officer, Varanasi, had advertised certain posts of Homeopathic
Compounder and Ward Boys in various newspapers.
C Respondents herein applied for the said post and participated
in the selection process. After the interviews, they were kept in
the waiting list. Those who were in the select list were offered
the appointments. Some of those candidates who were higher
in merit and were offered the appointments did not join. For this
D reason, candidates in the waiting list were issued appointment
letters by the then Chief Medical Officer. These included the
respondents herein as well. However, before the respondents
could join their duties, new Chief Medical Officer assumed the
charge and blocked their joining. Thereafter, vide order dated
E June 22, 1987 he even cancelled the said appointments made
by his predecessor for these Class-Ill and Class-IV posts i.e.
Homeopathic Compounder and Ward Boys.
6. The respondents filed the suit in the Court of City Munsif,
F Varanasi challenging the aforesaid orde~ dated June 22, 1987
cancelling their appointments by the new Chief Medical Officer.
This suit was registered as Suit No. 695/1987. It appears that
this suit could not be taken to its logical conclusion as\same
was dismissed for non-prosecution because of non appearance
G of the advocate of the respondents. The respondents herein did
not take any further steps in the said suit either by filing
application for restoration of the suit or challenging the said
order in appeal. In fact, there was a complete quietus on the
part of these respondents.
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 199
[A.K. SIKRI, J.]
7. It so happened that a few other candidates who were A
also affected by the same orders dated June 22, 1987, whereby
their appointments were cancelled, approached the Tribunal
challenging the legality, validity and proprietary of the said order
on several grounds. One of the grounds taken was that before
cancellation of their appointments, no show-cause notice was B
given to them. The Tribunal decided the case filed by them in
their favour vide judgment dated August 16, 1991 holding the
impugned order dated June 22, 1987 as illegal and void and
quashed the same. Against the order of the Tribunal, the State
filed the writ petition in the High Court. This writ petition was c
dismissed on August 27, 1992 thereby confirming the order
passed by the Tribunal. The Special Leave Petition filed by the
State met the same fate as that was also dismissed by this
Court on August 12, 1994. In this manner, the Tribunal's order
dated August 16, 1991 attained finality and the persons who D
had approached the Tribunal got the appointments.
8. The respondents herein waited all this while, that is till
the dismissal of the Special Leave Petition in the year 1994. It
is only thereafter, in the year 1995, the respondents gave a
representation for giving appointments to them as well on th~ E
strength of the judgment of the Tribunal given in the case of other
persons, claiming parity. This representation was rejected vide
order dated June 06, 1995 by the Chief Medical Officer. Against
this rejection the respondents approached the Tribunal by filing
Claim Petition No. 96/1996. As mentioned above, the said F
petition was allowed by the Tribunal on the ground that they were
in the same position in which the other successful candidates
were given relief and as such these respondents were also be
entitled to the same relief. The High Court has affirmed the
order of the Tribunal. G
9. The moot question which requires determination is as
to whether in the given case, approach of the Tribunal and the
High Court was correct in extending the benefit of earlier
judgment of the Tribunal, which had attained finality as it was
H
1
200 SUPREME COURT REPORTS [2014] 12 S.C.R.
A affirmed till the Supreme Court. Whereas the appellants
contend that the respondents herein did not approach the Court
in time'and were fence-sitters and, therefore, not entitled to the
benefit of the said judgment by approaching the judicial forum
belatedly. They als~ plead the some distinguishing features on
s the basis of which it is contended that the case of the
respondents herein is not at par with the matter which was dealt
with by the Tribunal in which order dated June 22, 1987 were
passed giving benefit to those candidates who had approached.
the Court at that time. On the other hand, the respondents claim
c that their case is identical to those who had filed the Application
before Tribunal inasmuch as appointments of the respondents
were also cancelled by the same order dated June 22, 1987
and, therefore, there is no reason to deny the same treatment
which was meted out to the said persons, as denial thereof
would amount to invidious discrimination which is anathema to
0
the right of equality enshrined under Article 14 of the
Constitution of India.
10. It is of interest to note that both the sides, in support
of their respective submissions, have referred to certain
E judgments and the reading whereof would demonstrate that in
certain cases benefit of a particular judicial pronouncement is
extended to those who are identically situated on the principle
of equality. On the other hand, there is a line of judgments
denying such a benefit to the second group which approaches
F the Court afterwards, even when the said second group is
similarly situated as the persons belonging to the first group.
However, there is no conflict between the two sets of cases. In
order to find out the principles laid down on the basis of which
benefit of the earlier judgment is extended to those coming
G subsequently and the situations where such benefit is denied,
we will have to undertake a journey into these details and lay
down clear parameters.
11. Let us first take note of those judgments, which are
referred to by the learned counsel for the respondents, wherein
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 201
[A.K. SIKRI, J.]
this Court has applied the ratio of the earlier judgments to the A
similarly situated persons giving them the same benefit. First
case, in the lilJe of these cases, referred to by the learned
counsel for the respondents is the judgment in lnder Pal Yadav
& Ors. v. Union of India & Ors'. That was a case where the
services of casual labour employed on railway projects B
continuously for more than a year were terminated on the ground
that the projects where these casual labour were working had
been wound up. Challenging their termination, writ petitions
under Article 32 of the Constitution of India were filed in this
Court. During the pendency of these petitions, Railway c
Administration framed scheme for their absorption as
temporary workmen on completion of 360 days of continuous
employment. This scheme was made applicable to those who
were in service as on January 01, 1984. In view of this
development, writ petitions were set out for hearing to examine 0
the fairness and justness of the Scheme, particularly, on the
issue as to whether choice of date of January 01, 1984 was
arbitrary or discriminatory. The Court was not enthused by
fixation of January 01, 1984 as the cut off date on the ground
that it was likely to introduce an invidious distinction between E
similarly situated persons and expose some workmen to
arbitrary discrimination flowing from fortuitous Court's order. It
was noticed that in some matters, the Court had granted interim
stay before the workmen could be retrenched while in some
other cases no such interim orders had been passed. Thus, as
a result of grant of interim relief by stay/ suspension of the order F
of retrenchment, persons benefitted by the said interim order
and were treated in service as on January 01, 1984. Those who
failed to obtain the interim relief, their services were terminated
in the meantime and, therefore, they were not in service as on
January 01, 1984. The Court pointed out that though both the G
groups belong to the same category, one category could get
the benefit of the scheme with cut off date of January 01, 1984,
whereas the other category would fail to get the benefiU
1. (1985) 2 sec 648. H
202 SUPREME COURT REPORTS [2014] 12 S.C.R.
A advance of the scheme. The Court also noted that there may
be some other persons, similarly situated, who could not afford
to rush to the Court and they would also be left out. Giving these
reasons, the date of January 01, 1984 fixed in the scheme was
struck down and the Court while accepting the scheme framed
B by the Railway Administration, modified the date from January
01, 1984 to January 01, 1981. While doing so, following
reasons were given:
"5 ... There is another area where discrimination is likely to
rear its ugly head. These workmen come from the lowest
c grade of railway service. They can ill afford to rush to court.
Their federations have hardly been of any assistance. They
had individually to collect money and rush to court which
in case of some may be beyond their reach. Therefore,
some of the retrenched workmen failed to know at the
D door of justice because these doors do not open unless
hudge expenses are incurred. Choice in such a situation,
even without crystal gazing is between incurring expenses
for a litigation with uncertain outcome and hunger from day
to day. It is a Hobson's choice. Therefore, those who could
E not come to the Court need not be at comparative
disadvantage to those who rushed in here. If they are
otherwise similarly situated, they are entitled to similar
treatment if not by anyone else at the hands of this Court."
F We would like to point out at this stage itself that the writ
petitions were filed by the concerned affected persons which
were already pending before the Court and it was the step
taken by the Railway Administration itself which framed the
Scheme for their absorption. In such circumstances, the
G question of fixing the rationality of cut off date in the said
Scheme arose for consideration and the Court was of the view
that while implementing the Scheme, those whose services
were terminated before January 01, 1984, they would be
discriminated against. Thus, while giving the direction to
implement the scheme which was framed by the Railway
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 203
[A.K. SIKRI, J.]
Administration itself, the Court gave the direction to start A
absorbing those with longest service, which is clear from the
reading of para 6 of the said judgment, and we reproduce the
same hereunder:
"6. To avoid violation of Article 14, the scientific and B
equitable way of implementing the scheme is for the
Railway Administration to prepare, a list of project casual
labour with reference to each division of each railway and
then start absorbing those with the longest service. If in the
process any adjustments are necessary, the same must
be done. In giving this direction, we are considerably C
influenced by the statutory recognition of a principle well
known in industrial jurisprudence that' the men with longest
service shall have priority over those who have joined later
on. In other words, the principle of last come first go or to
reverse it first come last go as enunciated in Section 25- D
G of the Industrial Disputes Act, 1947 has been accepted.
We direct accordingly."
This case, therefore, may not be of direct relevance.
E
12. Next judgment is of the Constitution Bench judgment
of this Court in the case of K.C. Sharma & Ors. v. Union of
lndia 2 • In this case the Court was directly concerned with the
issue of granting benefit of the earlier judgment. The
Government had passed Notification dated December 05,
F
1988 which obviously affected the pension of retired
employees, retrospectively. These persons had not challenged
the said Notification within the limitation period. However, in
some other case filed by similarly situated persons, a Full
Bench of the Central Administrative Tribunal declared the
Notification invalid vide its judgment dated December 16, 1993. G
After this Notification was declared invalid, the appellants also
claimed the benefit of that judgment from the Railways. On
Railways refusal to extend the benefit, they filed Application in
2. (1997) s sec 121. H
204 SUPREME COURT REPORTS (2014] 12 S.C.R.
A the Central Administrative Tribunal in April 1994. This
Application was dismissed by the Tribunal as time barred and
against the judgment of the Tribunal these appellants had
approached this Court. The Court, in a brief order which runs
into six paragraphs, held that delay in filing the Application
B should have been condoned and the appellants should have
been given relief by the Tribunal on the same terms as were
granted to others by the Full Bench judgment of the Tribunal .
After stating the aforesaid facts in the earlier paragraphs of the
order, the reasons for. extending the benefit are contained in
c para 6 thereof, which reads as under:
"6. Having regard to the facts and circumstances of the
case, we are of the view that this was a fit case in which
the Tribunal should have condoned the delay in the filing
of the application and the appellants should have been
D given relief in the same terms as was granted by the Full
Bench of the Tribunal. The appeal is, therefore, allowed,
the impugned judgment of the Tribunal is set aside, the
delay in filing of OA No. 774 of 1994 is condoned and the
said application is allowed. The appellants would be
E entitled to the same relief in the matter of pension as has
been granted by the Full Bench of the Tribunal in its
judgment dated 16-12-1993 in Oas No. 395-403 of 1993
and connected matters. No order as to costs."
F Immediate comment which is called for by us to the
aforesaid judgment is that there is no detailed discussion in the
said order. What can be observed from the reading of this
order is that the earlier judgment of the Tribunal striking down
the Notification dated December 05, 1988 was treated as
G judgment in rem. Naturally, when the Notification itself is struck
down and it was a matter of pension, benefit thereof was to be
given to the others as well. It appears that for this reason the
Constitution Bench observed that delay should have been
condoned giving relief to the appellants also in the same terms
as was granted by the Full Bench of the Tribunal.
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 205
[A.K. SIKRI, J.]
13. In State of Karnataka & Ors. v. C. Lalitha3 , which is A
the next case relied upon by the learned counsel for the
respondents, our attention was drawn to the following passage
from the said judgment:
"29. Service jurisprudence evolved by this Court from time 8
to time postulates that all persons similarly situated should
be treated similarly. Only because one person has
approached the court that would not mean that persons
similarly situated should be treated differently. It is
furthermore well settled that the question of seniority should C
be governed by the rules. It may be true that this Court took
notice of the subsequent events, namely, that in the
meantime she had also been promoted as Assistant
Commissioner which was a Category I post but the
direction to create a supernumerary post to adjust her must
be held to have been issued only with a view to D
accommodate her therein as otherwise she might have
been reverted and not for the purpose of conferring a
benefit to which she was not otherwise entitled to."
14. We have to understand the context in which the E
aforesaid observations came to be made. That was a case
where the order passed in the first round of litigation between
the same parties came up for construction and its effect. The
background in which the issue arose was that an amendment
made in the reservation policy of the State was challenged in F
N. T. Devin Katti v. Karnataka Public Service Commission'.
In that judgment, this Court had declared that the revised
reservation policy was not applicable to the selections initiated
prior thereto. It resulted in the consequential direction to the
State Government to appoint N.T. Devin Katti (appellant in that G
case) on the post of Tehsildar with retrospective effect. At the
same time, it was also made clear that for the purposes of
seniority such persons would have to be placed below the last
3. (2006) 2 sec 747.
4. (1990) 3 sec 1s1. H
206 SUPREME COURT REPORTS [2014] 12 S.C.R.
A candidates appointed in the year 1976 and they would a~o be
not entitled to any back wages. Insofar as, respondent C. Lalitha
is concerned, on the basis of revised reservation policy, she
was appointed as Tehsildar. After the rendition of the aforesaid
judgment in N. T. Devin Katti's case (supra), she approached
B the Karnataka Administrative Tribunal by filing an OA claiming
appointment as Assistant Commissioner. The Tribunal
dismissed the OA. However, her appeal against the order of
the Tribunal was allowed by this Court vide orders dated March
15, 1994, taking note of the fact that she was selected and
c shown in the first list, which was upheld by the Court in the case
of N. T. Devin Katti (supra). Since she had already been
promoted to Class I Post of Assistant Commissioner by then,
for her appointment the Court directed that if no vacancies are
available, the State Government will create a supernumerary
0 post and for the purpose of seniority, she had to be placed
below the last candidate appointed in the year 1976 and was
not entitled to any back wages. It is clear from these directions
that her appeal was allowed giving same directions as given
in N. T. Devin Katti (supra). It so happened that though her
E name was in the first list, which was upheld in N. T. Devin
Katti's case (supra), her rank was little below and there were
few persons above her. As per her rank in the general merit
Category I posts, after taking the opinion of the Public Service
Commission, it was decided by the Government to consider
her for the post of Assistant Controller of Accounts , a Category
F I Post, as the marks secured by her were below the marks
secured by the candidates selected as Assistant Controller of
Accounts. She refused to accept the said post and approached
the Tribunal again. The Tribunal dismissed the OA filed by her.
Against that order of the Tribunal she approached the
G Karnataka High Court, which allowed the writ petition directing
the State to implement order dated March 15, 1994 which was
passed by this Court in the earlier round. Against this order of
the High Court, the State preferred appeal and it is in this,
backdrop that effect of the earlier order dated March 15, 1994
H came up for consideration. It was argued by the State that effect
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 207
[A.K. SIKRI, J.]
of the order dated March 15, 1994 was to relegate the parties A
to the same position as if the reservation policy was not
amended and if so construed, the respondent having been
placed in the supplementary list could not have been laid any
claim for any post in the administrative service. It is this
contention which was accepted by this Court noticing another B
crucial fact that there were many persons who were higher in
the merit than the respondent and the effect of the earlier order
passed by this Court could not have been to ignore the said
merit list and give something to the respondent which was not
admissible in law. The Court held that merit should be the sole c
criteria for selection of candidates and the earlier judgment was
to be construed as if it had been rendered in accordance.with
law. While holding so, the Court also sited many case law to
demonstrate that the judgments are not to be read as a statute.
It is in the aforesaid context that observations are made in para D
29, on which heavy reliance has been placed by the respondent.
When we understand the impact of the observations
contextually, we find that again the issue at hand is totally
different.
E
15. Next case in the line, on which the respondents rely,
is Maharaj Krishna Bhatt & Anr. v. State of Jam mu &
Kashmir. In that case, the appellants and some other
Constables approached the Chief Minister of the respondent
State for relaxation of rules relating to 50% direct recruitment F
quota for appointment as Sub-Inspectors of Police (PSI). The
Chief Minister's office in turn called for the Director General's
recommendations, who recommended the name of one person
only, namely, Hamidullah Dar. Hamidullah Dar was accordingly
appointed as PSI with effect from April 01, 1987. Thereupon, G
other persons also approached the Court. In the case of one
Abdul Rashid Rather, the Single Judge of the High Court
allowed his writ petition. The respondent State filed LPA which
was dismissed, and subsequently, special leave petition was
s. (ZOOS) s sec 24. H
208 SUPREME COURT REPORTS [2014] 12 S.C.R.
A also dismissed by this Court. Consequently, Abdul Rashid
Rather was also appointed as PSI. It would be pertinent to
mention that the appellants in the said appeal, along with two
others, had also filed the writ petition in the year 1987, which
was disposed of on September 13, 1991 and a direction was
B issued to the Director General of Police to consider their cases
for appointment to the post of PSI by relaxing of rules. Pursuant
to the said directions, the Director General of Police
considered and rejected the cases of the appellants for
appointment without giving any reasons. These appellants
c initially filed the contempt petition, but thereafter preferred fresh
writ petition being Writ Petition No. 3735 of 1997. This writ
petition of the appellants was pending when the orders of
appointment came to be passed in the writ petition filed by
Abdul Rashid Rather and on the basis of that judgment, Abdul
D Rashid Rather had been given the appointment with effect from
April 01, 1987. In this scenario, when writ petition of the
appellants came up for hearing before the Single Judge of the
High Court, it was allowed vide judgment dated April 30, 2001
following the judgment in the case of Abdul Rashid Rather,
which had been affirmed by this Court as well. However, the
E State filed appeal thereagainst and this appeal was allowed
by the Division Bench of the High Court. Even the review
petition filed by the appellants was dismissed by the Division
Bench. Special Leave Petition was filed challenging the
judgment of the Division Bench, which was the subject matter
F in the case of Maharaj Krishan Bhatt (supra). Leave was
granted and ultimately appeal was allowed holding that the
appellants were also entitled to the same treatment. While
doing so, the Court made the following observations:
G "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
H Judge. The Division Bench of the High Court ought to have
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 209
[A.K. SIKRI, J.]
dismissed the letters patent appeal by affirming the order A
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, B
equity and fairness in action. The said order, therefore,
deserves to be restored."
16. No doubt, the Court extended the benefit of the
decision in Abdul Rashid Rather's case to the appellants. C
However, what needs to be kept in mind is that these appellants
had not taken out legal proceedings after the judgment in Abdul
Rashid Rather's case. They had approached the Court well in '
time when Abdul Rashid Rather had also filed the petition.
17. The submission of learned counsel for the appellants, D
on the other hand, is that the respondents did not approach the
Court earlier and acquiesced into the termination orders.
Approaching the Court at such a belated stage, after the
judgment in some other case, was clearly impermissible and
such a petition should have been dismissed on the ground of E
laches and delays as well as acquiescence. It was submitted
that in such circumstances this Court has taken consistent view
to the effect that benefit of judgment in the other case should
not be extended even if the persons in the two sets of cases
were similarly situated. Mr. P.N. Misra, learned senior counsel F
appearing for the appellants, pointed out in this behalf that
though the orders were passed by the appellants on June 22,
1987, the respondents have filed their claim petition before the
Tribunal only in the year 1996, i.e. after a period of 9 years from
the date of passing of the orders. He drew our attention to the G
following observations in Mis. Rup Diamonds & Ors. v. Union
of India & Ors6.:
"8. Apart altogether from the merits of the grounds for
6. (1989) 2 sec 356. H
210 SUPREME COURT REPORTS [2014] 12 S.C.R.
A rejection - on which it cannot be aid that the mere rejection
of the special leave petitions in the cases of M/s Ripa!
Kumar & Co., and Mis. H. Patel & Co., could, by itself, be
construed as the imprematur of this Court on the
correctness of the decisions sought to be appealed against
B - there is one more ground which basically sets the
present case apart. Petitioner are re-agitating claims
which they had not pursued for several years. Petitioners
were not vigilant but were content to be dormant and chose
to sit on the fence till somebody else's case came to be
c decided. Their case cannot be considered on the analogy
of one where a law had been declared unconstitutional and
void by a court, so as to enable persons to recover monies
paid under the compulsion of a law later so declared void.
There is also an unexplained, inordinate delay in preferring
this writ petition which is brought after almost an year after
D
the first rejection. From the orders in M/s Ripa! Kumar &
Co.'s case and Mis H. Patel & Co.'s case it is seen that
in the former case the application for revalidation and
endorsement was made on March 12, 1984 within four
months of the date of the redemption certificate dated
E November 16, 1983 and in the latter case the application
for revalidation was filed on June 20, 1984 in about three
months from the Redemption Certificate dated March 9,
1984."
F 18. That case pertains to import facility for import of OGL
items available under para 185(3) and (4) of Import - Export
Policy, 1982-83 to export houses after discharging export
obligation on advance/imprest licence. The petitioners had
applied for, and were granted, this imprest licence for the
G import of uncut and unset diamonds with the obligation to fulfil
certain export commitment for the export, out of India, of cut and
polished diamonds of the FOB value, stipulated in each of the
imprest licences. As per the petitioners, they have discharged
their export obligation and, therefore, in terms of para 185(4) ·
H of the Import - Export policy, they were entitled to the facility
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 211
[A.K. SIKRI, J.]
for the import of OGL items. However, they sought revalidation A
four years after discharge of export obligation and five years
after the expiry of the licence. This claim was rejected by the
authorities on the ground of delay. Writ petition was filed in this
Court one year after such rejection. In these circumstances, the
Court dismissed the writ petition for approaching the Court B
belatedly and refused to follow the orders passed in another
petitions by this Court, which was sought to be extended on the
ground that the petitions were exactly similar to those petitions
which were preferred in another case.
No doubt, writ petition was dismissed on the ground of C
unexplained inordinate delay, but it would be necessary to
observe that it was not a service matter. However, the principle
of delay and laches would have some relevance for our
purposes as well.
D
19. State of Karnataka & Ors. v. S.M. Kotrayya & Ors7 •
is, on the other hand, a service matter. Here, the respondents,
while working as teachers in the Department of Education,
availed of Leave Travel Concession (LTC) during the year
1981-82. But later it was found that they had never utilised the E
benefit of LTC but had drawn the amount and used it.
Consequently, recovery was made in the year 1984-86. Some
persons in similar cases challenged the recovery before the
Administrative Tribunal which allowed their Applications in
August 1989. On coming to know of the said decision, the
F
respondents filed Applications in August 1989 before the
Tribunal with an application to condone the delay. The Tribunal
condoned the delay and allowed the OAs. Appeal against the
said order was allowed by this Court holding that there was
unexplained delay in approaching the Tribunal. The Court relied
upon the Constitution Bench case in S.S. Rathore v. State of G
M.P. 8 , which deals with the manner in which limitation is to be
7. (1996) e sec 2e1.
0. (1989) 4 sec 582. H
212 SUPREME COURT REPORTS [2014] 12 S.C.R.
A counted while approaching the Administrate Tribunal under the
Administrative Tribunal Act, 1985. Here again, on the ground
of delay, the Court refused to extend the benefit of judgment
passed in respect of other similarly situated employees.
20. Both these judgments,· along with some other
8 judgments, were take note of in U.P. Jal Nigam & Anr. v.
Jaswant Singh & Anr.• That was a case where the issue
pertained to entitlement of the employees of U.P. Jal Nigam to
continue in service up to the age of 60 years. In Harwindra
Kumarv. Chief Engineer, Karmik' 0 this Court had earlier held
C that these employees were in fact entitled to continue in service
up to the age of 60 years. After the aforesaid decision, a spat
of writ petitions came to be filed in the High Court by those who
had retired long back. The question that arose for consideration
was as to whether the employees who did not wake up to
D challenge their retirement orders, and accepted the same, and
had collected their post retirement benefits as well, could be
given relief in the light of the decision delivered in Harwindra
Kumar (supra). The Court refused to extend the benefit applying
the principle of delay and !aches. It was held that an important
E factor in exercise of discretionary relief under Article 226 of the
Constitution of India is !aches and delay. When a person who
is not vigilant of his rights and acquiesces into the situation, his
writ petition cannot be heard after a couple of years on the
ground that the same relief should be granted to him as was
F granted to the persons similarly situated who were vigilant
about their rights and challenged their retirement. In para 7, the
Court quoted from Mis. Rup Diamonds & Ors. (supra). In para
8, S.M. _Kotrayya (supra) was taken note of. Some other
judgments on the same principle of laches and delays are
G taken note of in paras 9 to 11 which are as follows:
"9. Similarly in Jagdish Lal v. State of Haryana, (1997) 6
SCC 538, this Court reaffirmed the rule if a person chose
9. (2006) 11 sec 464.
H 10. (2oos) 13 sec 300.
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 213
[AK. SIKRI, J.]
to sit over the matter and then woke up after the decision A
of the court, then such person cannot stand to benefit. In
that case it was observed as follows: (SCC p. 542)
"The delay disentitles a party to discretionary relief
under Article 226 or Article 32 of the Constitution. B
The appellants kept sleeping over their rights for
long and woke up when they had the impetus from
Union of India v. Virpal Singh Chauhan, (195) 6
SCC 684. The appellants' desperate attempt to
redo the seniority is not amenable to judicial review C
at this belated stage."
10. In Union of India v. C.K. Dharagupta, (1997) 3 SCC
395, it was observed as follows:
"9. We, however, clarify that in view of our finding that the o
judgment of the Tribunal in R.P. Joshi v. Union of India,
OA No. 497 of 1986 decided on 17-3-1987, gives relief
only to Joshi, the benefit of the said judgment of the Tribunal
cannot be extended to any other person. The respondent
C.K. Dharagupta (since retired) is seeking benefit of Joshi E
case. In view of our finding that the benefit of the judgment
of the Tribunal dated 17-3-1987 could only be given to
Joshi and nobody else, even Dharagupta is not entitled to
any relief."
11. In Govt. of WB. v. Tarun K. Roy, (1997) 3 SCC 395, F
their Lordships considered delay as serious factor and
have not granted relief. Therein it was observed as follows:
(SCC pp. 359-60, para 34)
"34. The respondents furthermore are not even entitled to G
any relief on the ground of gross delay and laches on their
part i:i fiiing the writ petition. The first two writ petitions
were filed in the year 1976 wherein the respondents herein
approached the High Court in 1992. In between 1976 and
1992 not on!y two writ petitions had bee11 decided, but one H
214 SUPREME COURT REPORTS [2014) 12 S.C.R.
A way or the other, even the matter had been considered by
this Court in State of WB. v. Debdas Kumar, 1991 Supp
(1) SCC 138. The plea of delay, which Mr. Krishnamani
states, should be a ground for denying the relief to the
other persons similarly situated would operate against the
B respondents. Furthermore, the other employees not being
before this Court although they are ventilating their
grievances before appropriate courts of law, no order
should be passed which would prejudice their cause. In
such a situation, we are not prepared to make any
c observation only for the purpose of grant of some relief to
the respondents to which they are not legally entitled to so
as to deprive others therefrom who may be found to be
entitled thereto by a court of law."
21. The Court also quoted following passage from the
D Halsbury's Laws of England (para 911, p.395):
"In determining whether there has been such delay as to
amount to !aches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
E
(ii) any change of position that has occurred on the
defendant's part.
Acquiescence in this sense does not mean standing by
F while the violation of a right is in progress, but assent after
the violation has been completed and the claimant has
become aware of it. It is unjust to give the claimant a
remedy where, by his conduct, he has done that which
might fairly be regarded as equivalent to a waiver of it; or
G where by his might fairly be regarded as equivalent to a
waiver of it; or where by his conduct and neglect, though
not waiving the remedy, he has put the other party in a
position in which it would not be reasonable to place him
if the remedy were afterwards to be asserted. In such
cases lapse of time and delay are most material. Upon
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 215
[A.K. SIKRI, J.]
these considerations rests the doctrine of !aches." A
22. Holding that the respondents had also acquiesced in
accepting the retirements, the appeal of U.P. Jal Nigam was
allowed with the following reasons:
"13. In view of the statement of law as summarised above, B
the respondents are guilty since the respondents have
acquiesced in accepting the retirement and did not
challenge the same in time. If they would have been vigilant
enough, they could have filed writ petitions as others did
in the matter. Therefore, whenever it appears that the C
claimants lost time or whiled it away and did not rise to
the occasion in time for filing the writ petitions, then in such
cases, the court should be very slow in granting the relief
to the incumbent. Secondly, it has also to be taken into
· consideration the question of acquiescence or waiver on D
the part of the incumbent whether other parties are going
to be prejudiced if the relief is granted. In the present case,
if the respondents would have challenged their retirement
being violative of the provisions of the Act, perhaps the
Nigam could have taken appropriate steps to raise funds E
so as to meet the liability but by not asserting their rights
the respondents have allowed time to pass and after a
lapse of couple of years, they have filed writ petitions
claiming the benefit for two years. That will definitely require
the Nigam to raise funds which is going to have serious F
financial repercussions on the financial management of the
Nigam. Why should the court come to the rescue of such
persons when they themselves are guilty of waiver and
acquiescence?"
23. The legal principles which emerge from the reading of G
the aforesaid judgments, cited both by the appellants as well
as the respondents, can be summed up as under:
(1) Normal rule is that when a particular set of
employees is given relief by the Court, all other H
216 SUPREME COURT REPORTS [2014) 12 S.C.R.
A identically situated persons need to be treated alike
by extending that benefit. Not doing so would
amount to discrimination and would be violative of
Article 14 of the Constitution of India. This principle
needs to be applied in service matters more
B emphatically as the service jurisprudence evolved
by this Court from time to time postulates that all
similarly situated persons should be treated
similarly. Therefore, the normal rule would be that
merely because other similarly situated persons did
c not approach ihe Court earlier, they are not to be
treated differently.'
(2) However, this prinqiple is subject to well recognized
exceptions in the form of laches and delays as well
as acquiescence. Those persons who did not
D challenge the wrongful action .in their cases and
acquiesced into the same and woke up after long
delay only because! of the reason that their
counterparts who had approached the Court earlier
in time succeeded in their efforts, then such
E employees cannot claim that the benefit of the
judgment rendered in the case of similarly situated
persons be extended to them. They would be
treated as fence-sitters and laches and delays, and/
or the acquiescence, would be a valid ground to
F dismiss their claim.D ay not apply in those cases
where the judgment pronounced.by the Court was
judgment in rem with intention to give benef)l to all
similarly situated persons, whether they
approached the Court or not. With such a
G. pronouncement the obligation is cast upon the
authorities to itself extend the benefit thereof to all
similarly situated person. Such a situation can occur
when the subject matter of the decision touches
upon the policy matters, like scheme of
regularisation and the like (see K.C. Sharma &
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA 217
[A.K. SIKRI, J.]
Ors. v. Union of India (supra). On the other hand, A
if the judgment of the Court was in personam
holding that benefit of the said judgment shall
accrue to the parties before the Court and such an
intention is stated expressly in the judgment or it
can be impliedly found out from the tenor and B
language of the judgment, those who want to get the
benefit of the said judgment extended to them shall
have to satisfy that their petition does not suffer
from either laches and delays or acquiescence.
24. Viewed from this angle, in the present case, we find C
that the selection process took place in the year 1986.
Appointment orders were issued in the year 1987, but were
also cancelled vide orders dated June 22, 1987. The
respondents before us did not chalelnge these cancelleation
orders till the year 1996, i.e. for a period of 9 years. It means D
that they had accepted the cancellation of their appointments.
They woke up in the year 1996 only after finding that some other
persons whose appointment orders were also cancelled got
the relief. By that time, nine years had passed. The earlier
judgment had granted the relief to the parties before the Court. E
It would also be pertinent to highlight that these respondents
have/not joined the service nor working like the employees who
succeeded in earlier case before the Tribunal. As of today, 27
years have passed after the issuance of cancellation orders.
Therefore, not only there was unexplained delay and laches in F
filing the claim petition after period of 9 years, it would be totally
unjust to direct the appointment to give them the appointment
as of today, i.e. after a period of 27 years when most of these
respondents would be almost 50 years of age or above.
G
25. For all the foregoing reasons, we allow the appeal and
set aside the order of the High Court as well as that of the
Tribunal. There shall, however, be no order as to costs.
Nidhi Jain Appeal allowed.
H
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