UNION OF INDIAversusA. DURAIRAJ (D) BY LRS.

               [2010] 14 (ADDL.) S.C.R. 981


                      UNION OF INDIA                              A
                              v.
                A. DURAIRAJ (0) BY LRS.
              (Civil Appeal No. 1783 of 2005)
                    DECEMBER 01, 2010
                                                                  B
   [R. V. RAVEENDRAN, P. SATHASIVAM AND A. K.
                  PATNAIK, JJ.)

    Constitution of India, 1950:
                                                                  c
     Article 226 - Writ petition - Delay and /aches -
Employee was denied ad hoc promotion as Assistant Signal
and Telecommunication Engineer (ASTE) in 1976 because
of the medical report showing him a~ colour blind - In the year
1998 the employee on acquiring a 8. E. degree was sent for D
medical examination for being empanelled for promotion -
Report of Medical Board favourable - Representation by
employee in December 1998 that he· was unjustly refused ad
hoc promotion in 1976 - Rejected - O.A. dismissed by
Tribunal on ground of delay and /aches - High Court in a writ E
petition directing the employer to pay Rs. 2 lakhs as
compensation - Held: Even if no limitation is prescribed, any
belated challenge would be liable to be rejected on the ground
of delay and /aches, otherwise it would lead to serious·
administrative complications - In the instant case, s. 21 of the · F
1985 Act, prescribes limitation for approaching the Tribunal
- Even otherwise, non-selection in 1976 had attained finality
- High Court having held the 1976 medical report bona fide,
was not justified in granting compensation to the employee
on a vague assumption that he had suffered loss of
opportunity and mental agony - Order of High Court set aside G
- Administrative Tribunals Act, 1985 - s.21 - De/ay!Laches
- Compensation.

     Service Law:
                              981                                 H
    982   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A      Promotion to the post of Asstt. Signal and
  Telecommunication Engineer - Colour vision test - In 1976
  medical report indicated the employee colour blind - Ad hoc
  promotion denied - In 1998 and 2000 with advanced
  equipments colour blindness found minimal - Subsequently,
B employee promoted - Claim of employee that refusal of ad
  hoc promotion to him in 1976 was not just - HELD: The
  medical report of 2000 makes it clear that medical report of
  1976 was not the erroneous nor was it the result of any
  negligence - Rejection of his candidature was for justifiable
c reasons - Besides, the employee had failed in written
  examination for promotion held in 1980 and, therefore, would
  not have been entitled to regular promotion even if he was
  not colour blind - Failure to promote the employee on ad hoc
  basis in 1976 had no bearing on his chances of regular
  promotion - No injustice has occurred to the employee.
0
         The respondent, belonging to a Scheduled Caste,
    was, in the year 1976, considered for ad hoc promotion
    to the post of Assistant Signal and Telecommunication
    Engineer ('ASTE'), but was not found suitable as his
E   medical examination indicated that he was colour blind.
    In the year 1998, the respondent acquired a B.E. Degree.
    He was sent for medical examination for being
    empanelled as an eligible candidate for Group 'B'
    promotion. The report of the Medical Board was
F   favourable and the respondent was promoted as
    Assistant Work Manager on ad hoc basis. The
    respondent then gave representations dated 28.12.1998
    and 3.9.1999 contending that he was unjustly refused ad
    hoc promotion in 1976 and, therefore, he should be given
G   promotion as ASTE with retrospective effect from 1976
    as also all consequential promotions. Since that request
    was not acceded to, the respondent filed an O.A. before
    the Central Administrative Tribunal, which directed the
    authorities to consider the representations. Accordingly,
H   the representation of the respondent was considered and
    UNION OF INDIA v. A. DURAIRAJ (D) BY LRS.           983


 by order dated 8.2.2000, he was directed for a special        A
 medical examination. The respondent challenged the
 said order in another 0.A. reiterating the stand taken in
 the earlier O.A. and seeking a direction to the authorities
 to promote him to the post of Deputy Chief, S& T
 Workshop w.e.f. 1991 when, according to him, his              B
 promotion to the said post became due. Pursuant to the
 order dated 8.2.2000, the respondent was referred for a
 comprehensive testing for colour blindness and a team
 of experts using the latest equipments found his colour
 blindness to be minimal, which would not affect his work.     c
 However, the Tribunal dismissed the respondent's
.application. The respondent then filed a writ petition
 b~fore the High Court. Meanwhile, he was given
 promotion as ASTC on 22.11.2002 and he retired from
 service on 30.4.2003. The High Court observed that the        D
 subsequent diagnosis that the colour blindness was
 minimal was on account of comprehensive examination
 procedure with technologically advanced equipments
 available at that stage and did not establish that the
 opinion in 1976 was either ma/a fide or negligent, but
                                                               E
 directed the employers to pay him a sum of Rs. 2 lakhs
 as compensation. Aggrieved, the employers filed the
 appeal.

     Allowing the appeal, the Court
                                                               F
     HELD:

     1. It is well settled that anyone who feels aggrieved
by non-promotion or non-selection should approach the
court/tribunal as early as possible. If a person having a
justifiable grievance allows the matter to become stale        G
and approaches the court/tribunal belatedly, grant of any
relief on the basis of such belated application would lead
to serious administrative complications to the employer
and difficulties to the other employees as it will upset the
settled position regarding seniority and promotions            H
    984   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A which has been granted to others over the years. Further,
  where a claim is raised beyond a decade or two from the
  date of cause of action, the employer will be at a great
  disadvantage to effectively contest or counter the claim,
  as the officers who dealt with the matter and/or the
B relevant records relating to the matter may no longer be
  available. Therefore, even if no period of limitation is
  prescribed, any belated challenge would be liable to be
  dismissed on the ground of delay and laches. However,
  in the instant case, s.21 of the Administrative Tribunals
c Act, 1885 prescribes the limitation for approaching the
  Tribunal. The High Court ought to have affirmed the order
  of the Tribunal dismissing the application of the
  respondent for retrospective promotion from 1976, on the
  ground of delay and laches. [Para 12, 13-14) [992-C-F;
D 991-G-H; 993-H; 994-A]

         Union of India v. M. K. Sarkar 2009 (16) SCR 249 = 2010
    (2) sec 58 - relied on.

       2.1 The fact that the respondent was subjected to
E medical examination in 1976 and that he was found to be
  colour blind is not disputed. The respondent neither
  challenged his non-promotion as ad hoc ASTE nor the
  medical report. On account of the non-challenge, the
  issue relating to his non-selection in 1976 attained finality
F and the same issue could not have been reopened in the
  year 1999-2000, on the ground that medical tests
  conducted in 1998 and 2000 showed him to be not colour
  blind. The report of 2000 makes it clear that the medical
  report of 1976 was neither erroneous nor the result of any
G negligence. Thus, even if the test report of 2000 had
  demonstrated that the test report of 1976 was erroneous,
  it would not be possible to attribute any negligence or
  carelessness in regard to the earlier medical opinion or
  report, as subsequent test results were recorded by
  using equipment based on scientific and technological
H
   UNION OF INDIA v. A. DURAIRAJ (D) BY LRS.           985


advances, which were not available at the time of earlier     A
tests. In view of the clear findings by the High Court that
the medical opinion of 1976 was bonafide and that even
if the respondent had been found medically fit in 1976,
without passing the written examination in 1980 or
thereafter, he could not have been promoted as ASTE on        B
regular basis, the entire case of respondent becomes
untenable. There was no negligence/arbitrariness either
in regard to the Medical Examination or in regard to his
non-promotion to an ad hoc position in 1976. No injustice
has occurred in the case of respondent. [Paras 12 and         c
15-18) [992-A-B; 994-A-B; 995-E-H; 996-A-B; 995-F-H; 996-
A-B]

     2.2 Sympathy cannot erase the clear principles of law
and findings of fact or the effect of delay and laches; In
the instant case, the prayer in the writ petition was for . D
retrospective promotion. The High Court found that the
respondent was not entitled to such promotion. It also
held that what was denied was only an ad hoc promotion ·
and found that the respondent had failed in the written
examination in the year 1980 and, therefore, would not E
have been entitled to regular promotion, even if he was
not colour blind. The failure to promote the respondent
on ad hoc basis in 1976 had no bearing on his chances
of regular promotion. At all events the rejection of his
candidature for ad hoc promotion was for justifiable F
reasons. Therefore, the High Court was not justified in
granting compensation on a vague assumption that the
respondent had suffered loss of opportunity and mental
agony on account of what transpired in 1976. The order
of the High Court is set aside and that of the Tribunal G
dismissing the original application filed by the
respondent, restored. [Para 19-20) [996-C-G]
                    Case Law Reference:
    2009 (16) SCR 249         relied on           Para 14     H
    986    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A       CIVIL APPELLATE ,IURISDICTION : Civil Appeal No.
    1783 of 2005.

      From the Judgment & Order dated 10.03.2004 of the High
  Court of judicature at Madras in Writ Petition No. 4078 of
B 2001.

          Arvind Kumar Sharma for the Appellants.

          R. Nedumaran for the Respondent.
          The Judgment of the Court was delivered by
c
         R.V. RAVEENDRAN, J. 1. Application for substitution
    allowed. The appellants are permitted to bring the legal heirs
    of the deceased respondent on record. Cause title to be
    amended. Heard.
D
       2. The respondent, a diploma holder in mechanical
  engineering belonging to a schedule caste, while working as
  a Senior Section Engineer, Signal and Telecommunications,
  Southern Railways, in the year 1976, was considered alongwith
E others, for adhoc promotion to the post of Asst. Signal and
  Telecommunication Engineer ('ASTE' for short). Those who
  passed the medical examination (which included the tests to
  find out whether the candidates were not suffering from colour
  blindness) were given ad hoc promotions. However the
F medical examination report of respondent showed that he was
  colour blind and, therefore, he was not given ad hoc promotion
  as ASTE.

        3. In the year 1980, the respondent appeared for the
  written examination for regular promotion to Class II Group 'B'
G Services (including ASTE), but failed to qualify and was not
  promoted. According to the respondent, three ether schedule
  caste candidates who were earlier given ad hoc promotion as
  ASTE, and who also had failed in the written examination, were
  promoted in view of the policy of the government to select the
H best among the failed schedule caste candidates. According
    UNION OF INDIA v. A. DURAIRAJ (D) BY LRS.               987
            [R. V. RAVEENDRAN, J.]

to respondent, if he had been given the ad hoc promotion in         A
the year 1976, he would have had a better chance of been
considered for regular promotion as ASTE inspite of failing in
the written examination.

     4. In 1981, the post of ASTE was declared to be a 'safety      B
category' post, which meant that the candidates should be free
from colour blindness apart from being medically fit. Though
there were several subsequent examinations for promotion to
the post of ASTE, the respondent did not participate. After
1976, the respondent, however, made several attempts to find
a cure for the colour blindness and continued to consult various    C
doctors in India and abroad.

      5. When the respondent acquired a B.E. degree in the
year 1998, he was sent for medical examination for being
empanelled as an eligible candidate for Group 'B' promotion.        D ·
The report of Medical Board was favourable. He was therefore
promoted as Asst. Works Manager on ad hoc basis on
24.9.1998. Thereafter the respondent gave representations
dated 28.12.1998 and 3.9.1999 contending that he was unjustly
refused ad hoc promotion in 1976 on the ground of colour            E
blindness and he should be given such promotion as ASTE with
retrospective effect from 1976, as also all consequential
promotions. As that requestwas not acceded, the respondent
filed an application before the Central Administrative Tribunal,
Chennai ('Tribunal' for short) in OA No.1267/1999 praying for       F
a direction to the appellants to promote him to the post of
Deputy Chief, S&T workshop Padanur, by granting him the
several promotions to which he would have been entitled form
1976, if he was not colour blind. In the said application, he
alleged that the medical examination carried out in the year        G
1976 was done carelessly and negligently, thereby denying him
the opportunity of being promoted as ASTE on ad hoc basis;
and that, therefore the appellants ought to redress his grievance
by giving all promotions to which he was entitled and deserved
on the basis of his seniority. According to him if he had been      H
promoted as ASTE in the year 1976, by the year 1999, he
    988    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A   would have secured several further promotions and reached the
    position of Deputy Chief, S&T Workshop. The said application
    was disposed of by the Tribunal by order dated 22.12.1999 with
    a direction to consider his pending representations seeking
    promotion.
B
        6. In compliance with the said direction, the General
    Manager, Southern Railway considered his representation and
    sent the following communication dated 8.2.2000 to the
    respondent:
c         'The old records have been traced out. They clearly reveal
          that you were having colour blindness, you also had
          accepted the same and had sought for permission to use
          "x-chrom" contact lens used for colour blindness available
          only in USA vide your letter dated 8.11.1976.
D
          Probably with correction of such defect in vision you could
          have been declared fit in the medical examination held in
          the year 1998.

          Ordinarily wearing of colour vision soft contact lens cannot
E         be detected by naked eye examination. On further
          examination it is possible to confirm this. Accordingly, it
          is proposed to direct you for a special medical
          examination by a committee to be appointed by CMD
          shortly."
F
       7. Respondent again approached the Tribunal by filing OA
  No.460/2000 for quashing the order dated 8.2.2000 and
  seeking a direction to the appellants to promote him to the post
  of Deputy Chief, S&T Workshop with retrospective effect from
G 1991 when his promotion to the said post became due. In this
  application, he reiterated the averments and contentions made
  in the earlier application (OA No.1267/1999).

      8. In the meanwhile, the respondent was sent for medical
  examination to the Medical Director, Souther Railway Hospital,
H Perambur, as decided in the order dated 8.2.2000, who in turn
    UNION OF INDIA v. A. DURAIRAJ (D) BY LRS.              989
            [R. V. RAVEENDRAN, J.]

referred him for a comprehensive testing for colour blindness.     A
A team of Experts in Shankara Netralaya, a renowned eye
centre in Chennai examined him, using the latest e,quipments
and found his colour blindness to be minimal, which would not
interfere or affect his work.
                                                                   8
     9. The Tribunal dismissed the respondent's application
(QA No.460/2000) by order dated 18.10.2000. The Tribunal
held that if the respondent was aggrieved by his non-promotion
as ASTE on ad hoc basis in the year 1976, he should not have
kept quiet for more than 23 years and it was not open for the
respondent to seek reopening of the issue in the year 1999-        C
2000. The Tribunal also held that the medical examination in
1976 was only with reference to a proposed ad hoc promotion
for a temporary period, and as the respondent had failed in the
written examination for regular promotion in the year 1980 and
thereafter failed to appear in any of the promotional              D
examinations, he could not make a grievance in regard to non-
promotion to the post of ASTE.

      10. The respondent challenged the decision of the Tribunal
in WP No.407/2001. During the pendency of the writ petition        E
the respondent was given a promotion as ASTC on 22.11.2002
and he retired from service on 30.4.2003. A division bench of
the Madras High Court ultimately disposed of the said writ
petition by the impugned order dated 10.3.2004 recording the
following findings:                                                F
    (a) Colour blindness is incurable. The finding in 1998 and
    2000 that the respondent was not colour blind, led to an
    inference that the earlier diagnosis in 1976 that he was
    colour blind, was erroneous.
                                                                   G
    (b) But, even if he had been found to be not colour blind
    and medically fit in the year 1976, the respondent would
    have held the position of ASTE only on ad hoc basis, till
    regular promotions were made. Unless he succeeded in
    the regular written examination and fulfilled the minimum      H
    990    SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A         standards for promotion, he would not have been
          promoted as ASTE on regular basis. The respondent
          failed in the examination held in the year 1980-81 even
          after relaxing the standards and therefore he would not
          have been promoted as ASTE even if he was not colour
B         blind and therefore the contention of the respondent that
          he had lost further promotions could not be accepted.

          (c) The post of ASTE was categorised as a safety post in
          the year 1981; that as the safety of the persons who used
          the railways was of paramount importance, and the
c         medical opinion was that the respondent was colour blind,
          it could not be said that the action of the appellants in not
          promoting him on ad hoc basis in the year 1976, was
          illegal. There was no ma/a tides on the part of the railways
          in not promoting him on ad hoc basis in 1976, and the
D         appellants had not intentionally withheld any benefit legally
          due to the respondent.

          (d) Having regard to the nature and standard of eye testing
          equipments that were available in 1976, the opinion of the
E         doctors that the respondent was colour blind, was
          rendered bonafide and could not be said to be on account .
          of lack of competence or negligence and would not furnish
          any cause of action to the respondent for seeking any
          relief. The fact that more than two decades later, by using
F         technologically advanced testing equipments, a team of
          Doctors in an internationally renowned hospital had found
          that he was not suffering from marked colour blindness,
          merely showed the second diagnosis was on account of
          comprehensive examination procedure with technologically
          advanced equipment available at that stage, and did not
G
          establish that the opinion in 1976 was mala fide or
          negligent.

          (e) However the respondent had been denied the
          opportunity of holding the higher post of ASTE on ad hoc
H         basis from 1976-1981 on account of the medical opinion
   UNION OF INDIA v. A. DURAIRAJ (D) BY LRS.                991,
                                                                    '
           [R. V. RAVEENDRAN, J.]

    of 1976. If he had been permitted to hold the post of ASTE A
    on ad hoc basis from 1976 to 1981, he might have
    possibly succeeded in the examination held in 1980-81 ·
    and promoted as ASTE on regular basis.

    (f) As the respondent became aware of the fact that he was          B
    not colour blind only in the year 1998, his applications for
    relief filed in 1999 and 2000 could not be termed as
    suffering from laches.

    The High Court held that on account of the fact that
    diagnosis in 1976 had denied him advancement in his C
    career it was necessary to compensate him for the loss
    of opportunity and mental agony and therefore directed the
    appellants to pay a sum of Rs.Two lakhs as compensation
    to the respondent. The said order is challenged in this .
    appeal by special leave.                                   · D

     11. On the contentions raised, the following questinos arise
for our consideration:

    (i) Whether the claim of the respondent ought to have been
    dismissed on the ground of delay and laches?                         E

    (ii) Whether the order of the High Court calls for
    interference on the ground that the ultimate decision is ·
    contrary to the findings recorded by it?
                                                                         F
    (iii) On the facts and circumstances whether the High Court
    was justified in awarding a compensation of Rs.Two lakhs
    to the respondent?

Re: Question (i)
                                                                        .G
    12. Section 21 of the Administrative Tribunals Act, 1985
prescribes the limitation for approaching the Tribunal. In this
case the medical examination of the respondent and the non-
promotion as ad hoc ASTE were in the year 1976. The
respondent accepted the diagnosis that he was colour blind and           H
    992   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A did not make any grievance in regard to his non-promotion. On
  the other hand, he attempted to get treatment or correction
  contact lenses from USA (to aid the colour blind to distinguish
  colours correctly). On account of the non-challenge, the issue
  relating to his non-selection in 1976 attained finality and the
B same issue could not have been reopened in the year 1999-
  2000, on the ground that medical tests conducted in 1998 and
  2000 showed him to be not colour blind.

       13. It is well settled that anyone who feels aggrieved by
  non-promotion or non-selection should approach the Court/
C Tribunal as early as possible. If a person having a justifiable
  grievance allows the matter to become stale and approaches
  the Court/Tribunal belatedly, grant of any relief on the basis of
  such belated application would lead to serious administrative
  complications to the employer and difficulties to the other
D employees as it will upset the settled position regarding
  seniority and promotions which has been granted to others over
  the years. Further, where a claim is raised beyond a decade
  or two from the date of cause of action, the employer will be at
  a great disadvantage to effectively contest or counter the claim,
E as the officers who dealt with the matter and/or the relevant
  records relating to the matter may no longer be available.
  Therefore, even if no period of limitation is prescribed, any
  belated challenge would be liable to be dismissed on the
  ground of delay and !aches.
F
        14. This is a typical case where an employee gives a
  representation in a matter which is stale and old, after two
  decades and gets a direction of the Tribunal to consider and
  dispose of the same; and thereafter again approaches the
G Tribunal alleging that there is delay in disposal of the
  representation (or if there is an order rejecting the
  representation, then file an application to challenge the rejection,
  treating the date of rejection of the representation as the date
  of cause of action). This Court had occasion to examine such
H situations in Union of India v. MK. Sarkar [2010 (2) SCC 58]
    UNION OF INDIA v. A. DURAIRAJ (D) BY LRS.                  993
            [R. V. RAVEENDRAN, J.]

and held as follows:                                                   A,

    "The order of the Tribunal allowing the first application of
    respondent without examining the merits, and directing
    appellants to consider his representation has given rise to
    unnecessary litigation and avoidable complications. x x x          8
    xx

    When a belated representation in regard to a 'stale' or
    'dead' issue/dispute is considered and decided, in
    compliance with a direction by the Court/Tribunal to do so,
    the date of such decision can not be considered as                 C
    furnishing a fresh cause of action for reviving the 'dead'
    issue or time-barred dispute. The issue of limitation or
    delay and laches should be considered with reference to
    the original cause of action and not with reference to the
    date on which an order is passed in compliance with a              D
    court's direction. Neither a court's direction to consider a
    representation issued without examining the merits, nor a
    decision given in compliance with such direction, will
    extend the limitation, or erase the delay and laches.
                                                                       E,
    A Court or Tribunal, before directing 'consideration' of a
    claim or representation should examine whether the claim
    or representation is with reference to a 'live' issue or
    whether it is with reference to a 'dead' or 'stale' issue. It it
    is with reference to a 'dead' or 'stale' issue or dispute, the
                                                                       F
    Court/Tribunal should put an end to the matter and should
    not direct consideration or reconsideration. If the court or
    Tribunal deciding to direct 'consideration' without itself
    examining of the merits, it should make it clear that such
    consideration will be without prejudice to any c;;ontention
    relating to limitation or delay and laches. Even if the Court      G
    does not expressly say so, that would be the legal position
    and effect."

We are therefore of the view that the High Court ought to have
affirmed the order of the Tribunal dismissing the application of       H
    994 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A the respondent for retrospective promotion from 1976, on the
  ground of delay and laches.

    Re: Question (ii)

        15. The fact that the respondent was subjected to medical
B examination in 1976 and that he was found to be colour blind
  is not disputed. The respondent did not challenge his non-
  promotion as ad hoc ASTE or the medical report that he was
  colour blind. He appeared for the examination in 1980 and
  failed. According to him, in a subsequent medical examination
C in the year 1998, he was found to be normal and a further
  detailed medical examination in 2000 showed his colour
  blindness was minimal which would not affect discharge of his
  duties as ASTE. The respondent therefore wants the court to
  infer that the 1976 diagnosis of colour blindness was erroneous
D and he could not be made to suffer due to the negligence of
  the then Medical Board.

       16. The High Court has found that qualified Medical Board
  had examined him in the year 1976 and rendered a bonafide
E opinion based on the results of the medical examination. The
  High Court also found that the tests conducted in the year 1998
  and 2000, disclosed a different condition. The High Court found
  that the equipment used in 1976 was unable to diagnose the
  extent of colour blindness accurately; and the more
F sophisticated equipments available in 1998-2000 for testing,
  made it possible to measure and ascertain the exact extent of
  colour blindness. This is evident from the test report dated
  11.3.2000.

      17. We extract the relevant portion of the test report of
G Shankara Netralaya given on 11.3.2000 (extracted by the
  respondent in his counter affidavit):

        "Colour vision test

        lshihara's test, mainly now a days is used as a screening
H       method. We do not do the other out dated lantern tests.
    UNION OF INDIA v. A. DURAIRAJ (D) BY LRS.                995
            [R. V. RAVEENDRAN, J.]

     FARNSWORTH MUNSELL - 100 Hue test is the most                   A
     advanced technique available for checking colour vision.

     He underwent colour vision test by lshihara's charts, which
     showed normal response in both the eyes. He later
     underwent FARNSWORTH MUNSELL-100 HUE TEST
                                                                     B
     in both the eyes, which showed a low error score
     suggestive of minimally impaired colour discrimination.

     The error was felt to be due to the learning curve since
     FARNSWORTH MUNSELL - 100 HUE test is difficult to
     perform. We advice the patient to undergo repeat testing        C
     with FARNS WORTH MUNSELL - 100 HUE TEST in
     order to substantiate the diagnosis.

     But the patient refused to undergo the test next day as he
     felt that it was not required according to Railway norms for    0
     colour vision testing. This he has submitted in writing to
     us."

                                            (emphasis supplied)

 Thus the 2000 test reiterated the 1976 diagnosis that respondent    E
 had impaired colour discrimination. But with the accuracy
.Possible to attain by advanced equipment, the initial tests
 showed that the degree of colour blindness was marginal. But
 the respondent refused to undergo further tests to ascertain and
 confirm the actual extent of colour blindness. The above report     F
 makes it clear that the medical report of 1976 was neither
 erroneous nor the result of any negligence. We make it clear
 that even if the test report of 2000 had demonstrated that the
 test report of 1976 was erroneous, it would not be possible to
 attribute any negligence or carelessness in regard to the earlier   G
 medical opinion or report, as subsequent test results were
 recorded by using equipment based on scientific and
 technological advances, which were not available at the time
 of earlier tests.
                                                                     H
    996   SUPREME COURT REPORTS [2010) 14 (ADDL.)S.C.R.


A      18. In view of the clear findings by the High Court that the
  medical opinion of 1976 was bonafide and that even if the
  respondent had been found medically fit in 1976, without
  passing the written examination in 1980 or thereafter, he could
  not have been promoted as ASTE on regular basis. The entire
B case of respondent becomes untenable. There was no
  negligence or arbitrariness either in regard to the Medical
  Examination or in regard to his non-promotion to an ad hoc
  position in 1976. No injustice has occurred in the case of
  respondent.

C Re: Question (iii)

       19. The prayer in the petition was for retrospective
  promotion. The High Court found that appellant was not entitled
  to such promotion. The High Court also held that what was
D denied was only an ad hoc promotion and found that the
  respondent failed in the written examination in the year 1980
  and therefore would not have been entitled to regular promotion,
  even if he was not colour blind. The failure to promote the
  respondent on ad hoc basis in 1976 had no bearing on his
E chances of regular promotion. At all events the rejection of his
  candidature for ad hoc promotion was for justifiable reasons.
  Therefore the High Court was not justified in granting
  compensation on a vague assumption that respondent had
  suffered loss of opportunity and mental agony on account of
F what transpired in 1976. Sympathy cannot erase the clear
  principles of law and findings of fact, or the effect of delay and
  laches.

       20. We, therefore, allow this appeal, set aside the order
  of the High Court and restore the order of the Tribunal
G dismissing the original application filed by the respondent. If any
  terminal benefits are withheld in view of this litigation, the same
  should be released without further delay if there is no other
  objection/claim.

H R.P.                                             Appeal allowed.