Supreme Court of India
SUBODH KUMAR JAISWAL AND ORS.versusUNION OF INDIA AND ORS.
- Citation
- 2008 INSC 308
- Decided
- 5 March 2008
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court set aside the High Court’s inconsistent order and directed the Central Government to draw up year‑wise seniority lists and determine the respondent’s eligibility, without being bound by the High Court’s directions.
Summary
The case concerned a police officer (respondent No.4) who was appointed Deputy Superintendent of Police in 1979, confirmed in 1987 and promoted to the IPS in 1991 with a year of allotment recorded as 1987. He later sought to have his year of allotment back‑dated to 1984, claiming eligibility for promotion vacancies in 1988, but filed his claim before the Central Administrative Tribunal only in 1994, which dismissed it for delay and laches. A Bombay High Court writ petition condoned the delay and directed that his year of allotment be treated as 1987 and that he be considered for promotion in 1988, leading the State to alter his seniority to 1984 under threat of contempt, thereby affecting direct‑recruit IPS officers of the 1985 batch. The Supreme Court held the High Court’s directions inconsistent and set them aside, directing the Central Government to prepare year‑wise seniority lists for the relevant years and determine the officer’s eligibility afresh. The appeals were dismissed without any order as to costs.
Issues considered
- Whether the High Court erred in directing that the respondent's year of allotment be treated as 1987/1988 despite the delay in filing the claim.
- Whether the respondent is entitled to promotion and seniority over direct‑recruit IPS officers.
- Whether the High Court's directions are consistent and legally valid.
- Whether the delay and laches bar the respondent's claim for back‑dating his year of allotment.
- Whether the Central Government must prepare year‑wise seniority lists for the concerned years.
Legislation cited
- Indian Police Service (Appointment by Promotion) Regulations, 1955s. Regulation 5(2)
Subjects
service lawpromotionseniorityyear of allotmentcentral administrative tribunaldelaylachescontemptIPSDSP
Judgment
[2008] 3 S.C.R. 1107
SUBODH KUMAR JAISWAL AND ORS. A
v.
UNION OF INDIA AND ORS.
(Civil Appeal No. 1776 of 2008)
MARCH 5, 2008
B
~· [DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]
Service Law -Appointment by promotion - Confirmation
as Deputy Superintendent of police w.e.f. 1987 by order dated
1989 - In 1991 promoted as /PS - In 1994, Officer claiming c
for having been considered for promotion for the vacancies
arising in 1988 and seeking year of allotment as 1984 instead
of 1987 - Central administrative tribunal rejecting the claim
on the ground of delay and /aches - In writ petition, High Court
..,. granting the claim condoning the. delay in approaching the
D
.. Tribunal - Under threat of Contempt, State promoting the
officer without preparing seniority list for the concerned year, .
treating the year of allotment as 1984 -Affected direct recruits
appointed in 1985 approaching this Court - Held: Order of
the High Court not sustainable - The order is inconsistent -
There was no explanation for the delay - Normal procedure E
of preparation of year-wise seniority list was given a go-bye -
Direction to draw up year-wise seniority lists for the concerned
years and then to determine the eligibility of the Officer.
~--<
Respondent No. 4 was appointed as Deputy F
superintendent of Police (DSP) in 1979. In terms of third
proviso to Regulation 5 (2) of Indian Police Service
(Appointment by Promotion) Regulations, 1955 he was
promoted to IPS on 8.3.1991. His year of allotment as IPS
was given as 1987 i.e. the year in which he was confirmed
G
as DSP. Respondent No. 4 made a representation to treat
1984 as the year of allotment instead of 1987 and treating
.r ~ him as having been appointed by promotion as IPS in 1988
as he had become eligible on that date. However, he had
1107 H
1108 SUPREME COURT REPORTS (2008) 3 S.C.R.
A not pressed his claim for consideration for promotion in 1
1988 itself. He filed application before Central
Administrative Tribunal which was dismissed on the
ground that the application suffered from delay and
laches as respondent No. 4 made representation for the
B first time in 1994. Review petition was also dismissed. Writ
petition was allowed condoning the delay in approaching ~
the Tribunal and directed the officials to redetermine year
of allotment of respondent No. 4 as 1987, holding that he
was eligible for consideration for the vacancies in 1988.
c Contempt petition was filed by respondent No. 4 and
under threat of contempt, State implemented the judgment
of High Court without preparing any seniority list for the
year 1988, by changing his year of allotment to 1984 and
thus placing him above the appellant who were direct
0 recruits for the year 1985. Hence the present appeals by '!'-
the appellants after obtaining permission for filing the ~
same as they were not parties before the High Court.
Disposing of the appeals, the Court
E HELD: The judgment of the High Court gave
inconsistent directions; first was to consider the year of
allotment to be 1987 and consider respondent No.4's
case. Subsequent part was the conclusion that
respondent No.4 .was entitled to promotion. There was
F practically no explanation for the belated approach to the
Tribunal, and the normal procedul"e of preparing year-
wise seniority list was given a go bye because of High
Court's direction. Central Government is directed to draw
up year-wise lists for the concerned years and to
G determine the eligibility of respondent No.4 and take a·
decision in that regard. [Paras 6 and 7] (1113-E-H; 1114-A]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1776
of 2008.
From the final Judgment and Order dated 30.04.2004 and
H
SUBODH KUMAR JAISWAL AND ORS. v. UNION OF 1109
INDIAAND ORS. [DR. ARIJIT PASAYAT, J.]
25.01.2005 of the.. High Court of Judicature at Bombay in Writ A
Petition No. 2987 of 2002.
WITH
Civil Appeal No. 1777 of 2008.
K.K. Rai, P.P. Rao, S.K. Pandey, S.K. Singh, Gopal Prasad B
for the Appellants.
A. Sharma, ASG., V.A. Mohta, Mahabir Singh, Nitin S.
Tambwekar B.S. Sai, K. Rajeev, Sushma Suri, Binu Tamta,
Ravindra Keshavrao Adsure, Nikhil Jain and Ajay Pal for the c
Respondents.
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge iri these appeals is to the order passed by a D
-t
... Division Bench of the Bombay High Court allowing the writ
petitions filed by Gulabrao Dharmu Pol, respondent No.4 in
appeal relating to SLP ( C ) No.12364/2006 and Mr. Suresh A.
Kakkar, respondent No.4 in appeal relating to SLP (C) No.1178/
2007. E
3. A brief reference to the factual position would suffice.
The position as obtaining in the appeal -relating to S.L.P.(C)
No.12364/2006 is noted as the factual scenario is common to
both the appeals.
F
On 18.4.1979, respondent No.4 was appointed as trainee
Deputy Superintendent of Police by the Government of
Maharashtra subject to completion of training, practical training
and passing of tests in certain subjects. According to the
appellants, only if these conditions are fulfilled, he was to be G
appointed on regular basis to a cadre post in the cadre of Dy.SP/
ACP. In other words, it is stated that on completion of the
..,.~ +- probation satisfactorily, respondent No.4 was appointed to the
cadre post and started officiating as Dy.SP/ACP on regular
basis w.e.f. 3.8.1981 in terms of the Home Department,
H
"('
"
1110 SUPREME COURT REPORTS (2008] 3 S.C.R.
A Government of Maharashtra Order dated 1.2.1982. The
"1
appellants were directly recruited to the Indian Police Service
(in short 'IPS') and allocated to the State of Maharashtra with
the allotment year as 1985. By order dated 13.4.1989,
respondent No.4 was confirmed as DSP w.e.f. 31.12.1987.
B According to the appellants, there was no challenge to the delay,
if any, in his confirmation. On 3.8.1989, in terms of the third -(,
proviso to Regulation 5(2) of the applicable Regulations, i.e.
Indian Police Service (Appointment by Promotion) Regulations,
1955 (in short 'Regulation') he became eligible for consideration
for promotion to the IPS on completion of eight years of
c continuous service in the post of DSP in the State cadre. On
26.2.1990, the Selection Committee met and considered the
candidates who were substantive Oy.SPs who were eligible as
on 1.1.1990 including respondent No.4. On 8.3.1991,
respondent No.4 was promoted to IPS along with seven others,
D t-
including Shri S.A. Khopde. They all became juniors to the
t'
appellants who were appointed at least six years earlier.
Respondent No.4 did not press his claim for consideration for
promotion in the year 1988 itself. On 9.2.1993, he and other
promotees of his batch were confirmed in the IPS w.e.f.
E 8.3.1992. They were given 1987 as the year of allotment in the
IPS. On 27.7.1994, a representation was made by respondent
No.4 to treat 1984 as the year of allotment by treating him as
having been appointed in the year 1988 iteself. Subsequently,
another representation was made in January, 1995. ~~
F O.A.No.807/1996 was filed before the Central Administrative
Tribunal, Mumbai 'Bench (in short, the Tribunal) praying for
appropriate year of allotment in the IPS on the ground that though
he was eligible, he was not considered for the vacancies of
1988. The Union of India and the Union Public Service
G Commission (in short, 'UPSC') resisted the claim of respondent
No.4. The Tribunal dismissed the 0 .A. inter-alia holding that the
O.A. was barred by time and suffered from delay and !aches as
-+ .,.
the respondent No.4 made a representation for the first time on
27.7.1994, much after his alleged claim for the year of allotment
H being 1988. It was held that if his claims were to be allowed, it
SUBODH KUMAR JAISWAL AND ORS. v. UNION OF 1111
INDIAAND ORS. [DR. ARIJIT PASAYAT, J.]
would unsettle the settled position for about eight years. The A
review petition filed by respondent No.4 was also dismissed. A
writ petition was filed by respondent No.4 challenging the
judgments of the Tribunal. The same was allowed by condoning
the delay in approaching the Tribunal and it was directed that
the official respondents were to redetermine his year of allotment 8
as 1987 (which was later corrected to be 1988). It was also
~ held that if respondent No.4 was eligible for being considered
for the vacancies in 1988, his seniority shall be determined
treating him as entitled to be promoted in the year 1988 and his
year of allotment should be determined accordingly. A contempt c
petition (C.P.No.10/2006) was filed by respondent No.4 and the
Union of India implemented the judgment of the High Court
without preparing any seniority list for the year 1988 by changing
his year of allotment from 1987 to 1984 and placing him above
the appellants who were direct recruits of the year 1985. This
D
1 was done under threat of contempt The High Court disposed
• of the contempt petition as not pressed since the judgment had
been complied with. As the appellants were not parties before
the High Court, after obtaining permission to file S.L.P., the
Special Leave Petitions were filed.
E
4. Mr. P.P. Rao, learned senior counsel for the appellants,
primarily challenged the judgment of the High Court on the ground
that the appellants who would be directly affected by the order
__ ,. of the High Court were not parties before the High Court. In any
event, there was not even an application for condonation of delay F
in moving the Tribunal. A stale claim purportedly relating to 1988
was raised for the first time in 1994. The High Court could not
have directed that the official respondents were to determine
the seniority of respondent No.4 treating his year of allotment
as 1988 and he was entitled to be promot.ed in the vacancies
G
occurring ih the year 1988. It was further submitted that had the
appellants been impleaded as parties, they could have pointed
L out the fallacy in the claim of respondent No.4 and as to how he
,; I
was not entitled to be considered for promotion. Learned
counsel for respondent No.4, however, submitted that no direct
H
1112 SUPREME·COURT REPORTS [2008) 3 S.C.R.
A relief was claimed against the appellants and, therefore, there
was no need. to implead them as parties. Additionally, it is
submitted that when respondent No.4 noticed that his claim has
been bypassed without any legitimate reason, he made the
representation. From the stand of the Union of India, it appears
B that the proper course was to prepare three separate lists, which
is the normal procedure, forthe years in question if for any year
the selection was not held. But that apparently was not done in
view of the High Court's direction. The writ petition before the
High Court related to both eligibility and promotion.
C 5. As has been pointed out by learned counsel for the
appellants, there are two channels for appointment to the IPS,
one is by promotion from the s.ervice candidates and the other
is by direct recruitment. The direction of the High Court is some-
what confusing. The same reads as follows:
D
"13. Under the aforesaid facts and circumstances,
especially in the light of the above two Supreme Court
Judgments, in Union of India and Others V/s. Vipinchandra
Hiralal Shah - (1997) Supreme Court Cases (L & S) 41,
and Devendra Narayan Singh and Others V/s. State of
E Bihar and Others -AIR 1997 SC 595, we set aside both
the aforesaid orders of Central Administrative Tribunal
and we hold that in the case of the petitioner, the year of
allotment would be 1987 and he is eligible for being
considered for promotion in the vacancies occurring in
F the year 1988. Our view that in the case of the petitioner,
the year of allotment would be 1987 is reiterated by the
Government of India's communication to the Petitioner
dated 26 1h May, 1994, In the light of the above, the
Respondents shall determined the Petitioner's seniority
G treating his year of allotment as 1987 and that the Petitioner
was. entitled to be promoted in the vacancies occurring in
the year 1988 itself. Rule is accordingly made absolute
with. costs." '
< ..,
Subsequently, para 13 was corrected to read as follows:
H
. . . JBODH KUMAR JAISWALAND ORS. v. UNION OF 1113
INDIAAND ORS. [DR. ARIJIT PASAYAT, J.]
"Now the corrected Paragraph 13 in our aforesaid judgment A
and order will read as under: . ' ·
"Under the aforesaid facts and circumstances, especially
in the light of the above two supreme Judgments, in Union
Of India and Others V/s. Vipincharidra Hiralal Shah -
(1997) Supreme Court Cases (L&S) 41, and Devendra - 8
Narayan Singh and Others V/s. State of Bihar and Others
- AIR 1997 SC 595, we set aside both the aforesaid
orders of Central Administrative Tribunal and we hold that
in the case of the petitioner, he is eligible for being
considered for promotion in the vacancies occurring in c
the year 1988. In the light of the above, the Respondents
shall determine the Petitioners s~niority treating the
Petitioners as entitled to be promoted in the vacancies
occurring in the year 1988 its_elf and his year of allotmenU
seniority should be determined accord.ingly. Rule is D
accordingly made absolute with costs." ·
.6. Somewhat inconsistent directions were given; first was
to consider ttie year of ·allotment to be 1987 and consider
respondent No.4's case. Subsequent part was the conclusion
that respondent No.4 was entitled to promotion. It is pointed out E
•by learned· counsel for the Union of India and the State of
Maharashtra that if all eligible persons are to be impleaded,
that would be impossible because it is not known how many
--~ persons all over the country would be affected. We find that
nobody else has moved this Court. Therefore, that question may F
not strictly arise for consideration in the present case.
Additionally, as rightly contended by learned counsel for the
appellants, there was practically no explanation for the belated
approach to theTribunal, and the normal procedure of preparing
year-wise seniority list was given a go bye because of High G
Court 's direction.
7. Be that as it may, in our view, the judgment of the High
,/ Court is clearly inconsistent and is set aside. We direct the
Central Government to draw up year-wise lists for the concerned
H
1114 SUPREME COURT REPORTS [2008] 3 S.C.R.
'
A years, determine the eligibility of respondent No.4 and take a '
~
decision in that regard within a period of two months from today.
Needless to say that the Central Government, while undertaking
the exercise, shall not be influenced by any observations made
by the High Court or by us in the present judgment. It shall be
B open to the parties, if any or all of them affected by the decision,
to avail such remedies as are available in law. We express no .(,
opinion in that regard.
8. By order dated 17.9.2007, a Bench of this Court passed
the following order:
c
"Government would be entitled to fill in the vacancies
subject to the result of the special leave petition."
9. If any action has been taken pursuant to the said order,
it shall continue to be operative until fresh decision is taken by
D the Central Government. It needs no reiteration that by giving 1-
this protection, we have not expressed any opinion on the merits ti
of the case.
1O. The appeals are accordingly disposed of without any
order as to costs.
E
K.K.T. Appeals disposed of.
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