VIJAY KUMAR KAUL AND OTHERSversusUNION OF INDIA AND OTHERS

                        [2012] 6 S.C.R. 128


A               VIJAY KUMAR KAUL AND OTHERS
                                  v.
                  UNION OF INDIA AND OTHERS
               (Civil Appeal No. 4986-4989 of 2007)
                            MAY 25, 2012
8
         [DR. 8.5. CHAUHAN AND DIPAK MISRA, JJ.]

          SERVICE LA w· Seniority - Delay in making claim for
    seniority - Effect of - Held: Claim for seniority is to be put
C   forth within a reasonable period of time - Belated approach
    is not permissible as in the meantime interest of third parties
    gets ripened - The acts done during the interregnum are
    however important factors and should not be lightly brushed
    aside - It becomes an obligation to take into consideration
D   the balance of equity in entertaining the petition or declining
    it on the ground of delay and /aches - In the case at hand,
    appellants were appointed w.e.f. 1993 and 1996 respectively
    on the directions issued by Jammu High Court in 1995 -
    Another set of employees were granted appointment w.e.f.
E    1990 by virtue of directions issued in 2001 by Punjab and
    Haryana High Court - Claim for seniority by appellants on
    the basis of parity with the other set of employees rejected by
    courts below - On appeal, held: Appellants neither in their
    initial rounds before the tribunal nor before the Jammu High
F   Court ever claimed appointment with retrospective effect -
    Appellants had slept over their rights and eventually
    approached the tribunal after quite a span of time - In the
    meantime, the beneficiaries of Punjab and Haryana High
    Court were promoted to the higher posts - To put the clock
G   back at this stage and disturb the seniority position would be
    extremely inequitable and hence, the tribunal and the High
    Court correctly declined to exercise their jurisdiction - Delay
    and /aches - Equity.


H                                128
       VIJAY KUMAR KAUL v. UNION OF INDIA                129


     The appellants participated in a selection process         A
conducted by Second Field Ordinance Depot (2FOD) in
the year 1984 for the post of Lower Division Clerks.
However, due to ban on appointments, they were not
issued appointment letters. In December 1993, pursuant
to the order of the Central Administrative Tribunal             B
(tribunal) of Jammu, appointment letter was issued to
appellant no.4. The said appointment was given with
prospective effect and appellant no.4 was not granted
benefit of back wages and seniority. Appellant no.1 to 3
were given appointments in May, 1996 on the basis of            c
directions issued on 24. 7 .1995 by the High Court of
Jammu and Kashmir.                              ·

     One 'P' and others whose names had figured in the
select list but were not appointed had filed OA before the
Chandigarh Bench of the tribunal. The tribunal had              D
allowed the OA directing the competent authorify to issue
appointment letters to them. The competent authority
instead of appointing P and others against the vacancies
in 9FOD appointed them against the vacancies of 2FOD
w.e.f. 1.1.1992. On their filing OA, the tribunal directed      E
appointment of 'P' and others w.e.f 1.5.1985 and granted
benefit of 50% of back wages and consequential
benefits. The Punjab and Haryana High Court set aside
the order of the tribunal on 12.7.2001 to the extent of grant
of back wages but did not interfere with the direction          F
antedating their appointment and other consequential
reliefs granted by the tribunal. After the said order of the
High Court, the appellant submitted representations to
extend to them the similar benefits on the foundation of
parity. The said prayer was rejected.                           G

    The appellants filed OA before the tribunal
contending that grave injustice had been done to them
by the competent authority inasmuch as they were not
given the equal treatment that was given to similarly           H
    130     SUPREME COURT REPORTS             [2012] 6 S.C.R.


A placed employees; and that their seniority position and
  prospects for promotion had been immensely affected.
  The stand put forth by the appellants was resisted by the
  respondents contending, inter alia, that as the appellants
  were not parties to the application before the Chandigarh
B tribunal and were not covered by the judgment of Punja'b
  and Haryana High Court, they were not extended the
  benefit; that only those general category candidates who
  were placed higher in merit list were appointed prior' to
  them excepting one candidate who belonged to the
c Scheduled, Caste category; that the appellants could not
  have been appointed as there was a ban and thereafter
  they were appointed as per the direction of the High
  Court of Jammu and Kashmir; and that the tribunal while
  directing appointment of appellant no. 4 had clearly
0 stated that the appointment shall have prospective effect
  and he would not be entitled to any back wages or
  seniority and the said order having gone unassailed, the
  claim put forth by the appellants did not merit
  consideration.

E      The tribunal rejected the OA filed by the appellants
  holding that as far as appellant no.4 was concerned, his
  case had attained finality and that the decision rendered
  in the case of 'P' and others could not be treated as
  judgment in rem but was a judgment in personam and the
F appellants had been given appointment as per their
  placement in the merit list regard being had to availability
  of vacancies and, therefore, could not relate to an earlier
  date especially when they failed to show that any person
  junior to them had been given appointment from a
G retrospective date. Aggrieved, the appellants filed a writ
  petition before the High Court. The High Court upon
  perusal of the order passed by the tribunal, the decision
  rendered by the Punjab and Haryana High Court, and on
  considering the factum of the delay and laches on the
H part of the appellants, and that they had not been
      VIJAY KUMAR KAUL v. UNION OF INDIA                 131

superseded as the select list was prepared in order of          A
merit, and appreciating the fact that the appointments
had been made strictly in accordance with the merit
declined to interfere with the order. The instant appeal
were filed challenging the order of the High Court.
                                                                B
    Dismissing the appeals, the Court

     HELD: 1. The High Court of Jammu and Kashmir, by
order dated 24.7 .1995 directed the respondents to
appoint the appellants. After the decision of the Punjab
and Haryana High Court was delivered, the appellants C
approached the Principal Bench of the tribunal and the
tribunal did not accept the prayer which was given the
stamp of approval by the High Court. The appellants,
neither in their initial rounds before the tribunal nor
before the High Court, ever claimed any appointment D
with retrospective effect. In fact, the direction in respect
of appellant No. 4 in the OA preferred by the appellant No.
4 was absolutely crystal clear that it would be
prospective. The said order was accepted by the said
appellant. However, after the decision was rendered by E
the Punjab and Haryana High Court wisdom dawned or
at least they perceived so, and approached the Principal
Bench for grant of similar reliefs. The appellants did not
approach the legal forum but awaited for the verdict of
the Punjab and Haryana High Court. As far as appellant F
No. 4 was concerned, there was no justifiable reason on
his part to join the other appellants when he had acceded
to the first judgment passed in his favour to a limited
extent by the tribunal. They approached the tribunal some
time only in 2004. The only justification given for the G
delay was that they had been making representations and
when the said benefit was declined by communication
dated 31.7.2004, they moved the tribunal. [Para 14-17]
[140-B-H, 141-A-B, F-H; 142-A]

    2. It is well settled that the claim for the seniority is   H
    132       SUPREME COURT REPORTS            [2012] 6 S.C.R.


A to be put forth within a reasonable period of time. A
    litigant who invokes the jurisdiction of a court for
    claiming seniority, it is obHgatory on his part to come to
    the court at the earliest or at least within a reasonable
    span of time. The belated approach is impP.rmissible as
B in the meantime interest of third parties gets ripened and
    further interference after enormous delay is likely to
    usher in a state of anarchy. The acts done during the
    interregnum are to be kept in mind and should not be
    lightly brushed aside. It becomes an obligation to take
C · into consideration the balance of justice or injustice in
    entertaining the petition or declining it on the ground of
    delay and laches. It is a matter of great significance that
    at one point of time equity that existed in favour of one
    melts into total insignificance and paves the path of
    extinction with the passage of time. In the case at hand,
0
    as the factual matrix reveals, the appellants knew about
    the approach by 'P' and others before the tribunal and
    the directions given by the tribunal but they chose to wait
    and to reap the benefit only after the verdict. This kind of
    waiting is totally unwarranted. [Paras 18, 21-23] [142-B;
E 143-D-H]
       3. In the case at hand it is evident that the appellants
  had slept over their rights as they perceived waiting for
  the judgment of the Punjab and Haryana High Court
F would arrest time and thereafter further consumed time
  submitting representations and eventually approached
  the tribunal after quite a span of time. In the meantime,
  the beneficiaries of Punjab and Haryana High Court were
  promoted to the higher posts. To put the clock back at
G this stage and disturb the seniority position would be
  extremely inequitable and hence, the tribunal and the
  High Court correctly declined to exercise their
  jurisdiction. [Para 27] [145-H; 146-A-B]

          4. Another aspect needs to be highlighted. Neither
H
       VIJAY KUMAR KAUL v. UNION OF INDIA                133


before the tribunal nor before the High Court, 'P' and         A
others were arrayed as parties. There is no dispute over
the factum that they are senior to the appellants and were
conferred the benefit of promotion to the higher posts.
In their absence, if any direction is issued for fixation of
seniority, that is likely to jeopardise their interest. When   B
they have not been impleaded as parties such a relief is
difficult to grant. There cannot be any trace of doubt that
an affected party has to be impleaded so that the
doctrine of audi a/teram partem is not put into any hazard.
[Para 28 and 30] [146-C-D; 147-E-F]                            c
     K. C. Sharma and others v. Union of India and others
(1997) 6 SCC 721: 1997 (3) Suppl. SCR 87; Maharaj
Krishan Bhatt and another v. State of Jammu and Kashmir
and others (2008) 9 sec 24: 2008 (11) SCR 670; State of
Kamataka and others v. C. Lalitha (2006) 2 SCC 747: 2006 D
(1) SCR 971 - Distinguished.

    lndu Shekhar Singh & Ors. v. State of UP. & Ors. AIR
2006 SC 2432:· 2006 (1) Suppl. SCR 497; Public Service
Commission, Uttaranchal v. Mamta Bisht & Ors. AIR 2010 SC      E
2613: 2010 (7) SCR 289 - relied on.

     Collector of Central Excise, Calcutta v. Mis. Alnoori
Tobacco Products and anr. 2004 (6) SCALE 232; P. S.
Sadasivaswamy v. State of Tamil Nadu AIR 1974 SC 2271:
                                                               F
1975 (2) SCR 356; Kamataka Power Corporation Ltd. & Anr.
v. K. Thangappan & Anr. AIR 2006 SC 1581: 2006 (3) SCR
783; City Industrial Development Corporation v. Dosu
Aardeshir Bhiwandiwala & Ors. AIR 2009 SC 571: 2008 (16)
SCR 28 - referred to.
                                                               G
                    Case Law Reference:
  1997 (3) Suppl. SCR 87      Distinguished    Para 11, 24
  2004 (6) SCALE 232          referred to      Para 11
                                                               H
    134       SUPREME COURT REPORTS               [2012) 6 S.C.R.


A     2006 (1) SCR 971              Distinguished     Para 11, 24
      2008 (11) SCR 670             Distinguished     Paras 11,25
      1975 (2) SCR 356              referred to       Para 18

B
      2006 (3) SCR 783              referred to       Para 19
      2008 (16) SCR 28              referred to       Para 20
      2006 (1) Suppl. SCR 497 relied on                Para 28
      2010 (7) SCR 289              referred to       Para 29
c
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4986-4989 of 2012.

      From the Judgment & Order dated 8.11.2006 of the High
  Court of Delhi at New Delhi in Civil Writ Petition Nos. 9130-
D 9133 of 2006.

          Ashok Bhan, Purnima Bhat for the Appellant.

       R.P. Bhatt, Kiran Bhardwaj, Asha G. Nair, Sailendra Saini,
E D.S. Mahra for the Respondents.

          The Judgment of the Court was delivered by

       DIPAK MISRA, J. 1. The appellants, four in number,
  participated in a selection process conducted by the Second
F Field Ordnance Depot (2 FOO) in the year 1984 for the post
  of Lower Division Clerks (LDCs). Despite their selection for the
  post in question they were not issued appointment letters on
  the pretext that there was a ban on appointments. In December
  1993, pursuant to the order passed in OA No. 29/jk/92 dated
G 24.8.1993 by the Chandigarh Bench of the Central
  Administrative tribunal (for short 'the Tribunal'), respondent No.
  4 was issued an appointment letter. The appellant Nos. 1 to 3
  were given appointment in May, 1996 on the basis of the
  directions issued on 24. 7.1995 by the High Court of Jammu
H and Kashmir in SWP No. 1052 of 1991.
       VIJAY KUMAR KAUL v. UNION OF INDIA                    135
                [DIPAK MISRA, J.]

     2. It is worth noting that Parveen Singh and others, whose      A
names, had figured in the select list, being aggrieved due to
non appointment, had preferred OA No. 539-HP of 1986 before
the Chandigarh Bench of the tribunal which allowed the OA vide
order dated 25.8.1987 directing the respondent herein to issue
appointment letters to them. The respondents instead of              B
appointing the said Parveen Singh and others against the
vacancies in 9 FOO, where there were ten vacancies of LDCs,
appointed them against the vacancies falling in 2 FOO where
there were 27 vacancies for LDCs with effect from 1.1.1990.

      3. As set forth, said Parveen Singh and others filed second
                                                                     c
OA No. 1476-pb-1991 before the Chandigarh Bench of the
tribunal with a pray.er to issue a direction to the respondents to
appoint them as LDCs with effect from 1.5.1985 with all
consequential benefits including seniority, pay and allowances,
                                                                     0
etc. on the foundation that similarly situated persons who were
selected along with them had been appointed with effect from
1985. The tribunal allowed the application vide order dated
13.10.2000 directing that their appointment shall be treated with
effect from 1.5.1985 and they shall be extended the benefit of
fifty per cent of back wages and other consequential reliefs.        E

     4. The aforesaid order was called in question by the
respondents before the High Court of Punjab and Haryana in
CWP No. 1158 of 2001 and a Division Bench of the High Court,
as per order dated 12.7.2001, set aside the order of the tribunal    F
to the extent of grant of back wages but did not interfere with
the direction ante-dating their date of appointment and other
consequential reliefs granted by the tribunal.

     5. As has been stated earlier that the appellants had
approached the tribunal and were appointed on two different          G
dates sometime in December, 1993 and May, 1996. After the
High Court of Punjab and Haryana passed the order, the
respondents conferred the benefit on said Parveen Singh and
others. Thereafter, the present appellants submitted a series
of representations to extend to them the similar benefits on the     H
    136      SUPREME COURT REPORTS                [2012] 6 S.C.R.


A   foundation of parity. The said prayer was negatived by the
    respondents by order dated 21.7.2004.

         6. Being dissatisfied with the said action of the
    respondents the appellants knocked at the doors of the
B   Principal Bench of the tribunal in OA No. 2082 of 2004. It was
    contended before the tribunal that grave injustice had been
    done to them by the respondents inasmuch as they were not
    given the equal treatment that was given to similarly placed
    employees; and that their seniority position and prospects for
C   promotion had been immensely affected. The stance and stand
    put forth by the appellants was resisted by the respondents
    contending, inter alia, that as the appellants were not parties
    to the application before the Chandigarh tribunal and were not
    covered by the judgment of Punjab and Haryana High Court,
    they were not extended the benefit; that only those general
D   category candidates who were placed higher in merit list were
    appointed prior to them excepting one Kalu Ram who belonged
    to the Scheduled Caste category; that the appellants could not
    have been appointed as there was a ban and thereafter they
    were appointed as per the direction of the High Court of Jammu
E   and Kashmir; and that the tribunal in OA No. 29/jk/92 preferred
    on the question of appointment of the appellant No. 4 had
    clearly stated that the appointment shall have prospective effect
    and he would not be entitled to any back wages or seniority
    and the said order has gone unassailed; and hence, the claim
F   put forth in the petition did not merit consideration.

         7. The tribunal adverted to various orders passed by the
  tribunal at various junctures and the orders passed by the
  Punjab and Haryana High Court and came to hold that as far
  as the appellant No. 4 is concerned his case had attained
G finality; that the decision rendered in the case of Parveen Singh
  and others could not be treated as judgment in rem but a
  judgment in personam; and that the appellants had been given
  appointment as per their placement in the merit list regard
  being had to availability of vacancies and hence, it could not
H
        VIJAY KUMAR KAUL v. UNION OF INDIA                    137
                 [DIPAK MISRA, J.]

relate to an earlier date, especially when they failed to show       A
that any person junior to them had been given appointment from
a retrospective date or extended benefit. Being of this view the
tribunal dismissed the Original Application.

      8. Aggrieved by the aforesaid order the appellants invoked     8
the jurisdiction of the High Court of Delhi under Articles 226 and
227 of the Constitution of India seeking a writ of certiorari for
quashment of the order dated 10.3.2005 passed by the tribunal
 and also for quashing of the orders by which their
 representations had been rejected and further pressed for issue     C
 of a writ of mandamus commanding the respondents to extend
 the similar ,benefits as had been extended to Parveen Singh
 and others in view· of the judgment rendered by Punjab and
 Haryana High Court.

      9. The High Court, upon perusal of the order passed by         D
the tribunal, the decision rendered by the Punjab and Haryana
High Court, and on considering the factum of the delay and
laches on the part of the appellants, and that they had not been
superseded as the select list was prepared in order of merit,
and appreciating the fact that the appointments had been made        E
strictly in accordance with the merit declined to interfere with
the order.

    10. We have heard Mr. Ashok Bhan, learned senior
counsel for the appellants and Mr. R.P. Bhatt, learned senior
                                                                     F
counsel for the respondents.

     11. It is submitted by the learned senior counsel for the
appellants that the tribunal as well as the High Court have fallen
into serious error by expressing the view that the appointments
were based on the merit list and, therefore, there was no            G
supersession of the appellants. It is urged by him that neither
the original application nor the writ petition could have been
dismissed on the ground of delay and laches, in view of the fact
that the appellants immediately approached the tribunal after
the High Court rendered its judgment on 12. 7.2001. It is his        H
    138         SUPREME COURT REPORTS             [2012] 6 S.C.R.


A further submission that a serious anomalous situation has
  cropped up inasmuch as the candidates whose names
  featured in one select list have been appointed at various
  times, as a consequence of which their pay-scale, seniority and
  prospects for promotion, have been put to jeopardy. The last
B limb of submission of the learned senior counsel for the
  appellants is that both the forums have failed to appreciate that
  injustice meted out to the appellants deserved to be remedied
  applying the doctrine since the doctrine of parity and the orders
  are vulnerable and deserved to be axed and appropriate
c direction are to be issued considering similar benefits. The
  learned senior counsel to bolster his submission has placed
  reliance on the decisions in K. C. Sharma and others v. Union
  of India and others1, Collector of Central Excise, Calcutta v.
  Mis. Alnoori Tobacco Products and anr2., State of Karnataka
  and others v. C. Lalitha and Maharaj Krishan Bhatt3 and
0
  another v. State of Jammu and Kashmir and others4 .

        12. Mr. Bhatt, learned senior counsel for the respondents
  supported the order passed by the tribunal as well as by the
  High Court on the ground that the decisions which have been
E rendered by the tribunal and the High Court are absolutely
  impregnable since the appellants had never approached the
  tribunal at the earliest and only put forth their claims after
  success of Parveen Singh and others. It is propounded by him
  that the appellants while filing the various original applications
F seeking appointment had never .claimed the relief of
  appointment with retrospective effect and, in fact, in the case
  of the appellant No. 4 the tribunal has categorically stated that
  his appointment could have prospective effect which has gone
  unassailed and, therefore, relying on the decision of Parveen
G Singh and others is of no assistance to the appellants.

    1.   (1997)6SCC721.
    2.   2004 (6) SCALE 232.
    3.   (2006) 2 sec 747.
H   4.   c2oos) 9 sec 24.
       VIJAY KUMAR KAUL v. UNION OF INDIA                     139
                [DIPAK MISRA, J.]
       13. To appreciate the rival submissions raised at the Bar     A
it is appropriate to refer to the various orders passed at various
times. Parveen Singh and others approached the tribunal of
Chandigarh at Chandigarh Bench in the year 1986. The tribunal,
by order dated 25.8.1987, directed to issue appointment letters
to the applicants against the vacancies which had not been           B
filled up, regard being had to the merit position in the
examination. Thereafter, the said Parveen Singh and others
were intimated vide letter dated 15.1.1991 to report at the
office for collection of their appointment letters on character
verification and eventually they got appointments. Later on          c
Parveen Singh and others had approached the tribunal to
extend the monetary benefits from the date of their appointment.
The tribunal had directed to extend 50% of the actual monetary
 benefits from the date of appointment along with other
 consequential benefits. The Union of India and its authorities
                                                                     0
 preferred writ petition before the High Court of Punjab and
 Haryana, which passed the following order: -

     "For the reasons recorded above, the writ petition is partly
     allowed and the order of the tribunal is quashed to the
     extent it grants 50% back wages. However, we do not find        E
     any infirmity in keeping intact the other reliefs granted by
     the tribunal, namely, ante-dating of appointment of
     respondent Nos. 1 to 7 and fixation of their pay with all
     consequential benefits of increments etc. with effect from
     the date, all other candidates placed on the panel of           F
     selected candidates were appointed. No order as to
     costs."

     14. While Parveen Singh and others were proceeding in
this manner, appellant No. 4, Ujwal Kachroo, approached the          G
tribunal at Jammu. The tribunal allowed OA and directed to
issue appointment letter to the applicant for the post for which
he was duly selected in 1984 within a period of six weeks. It
proceeded to clarify that the appointment shall have
prospective effect and he would not be entitled to any back
                                                                     H
    140        SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A wages or seniority for the simple reason that it was neither his
  case nor anything had been brought on record to show that any
  person junior to him in the panel had already been appointed.
  At this juncture, three of the appellants approached the High
  Court of Jammu and Kashmir and the learned single Judge of
B the High Court of Jammu and Kashmir, by order dated
  24. 7.1995, had passed the following order: -

          "I have heard learned counsel for the parties. The
          respondents have no objection in appointing the
          petitioners as and when the posts of LDCs become
c         available and also subject to their merit positions in the
          select list. Since the respondents have not objected in
          making appointments of the petitioner, I allow this writ
          petition and direct the respondents that the petitioners shall
          be appointed as LDCs as and when the posts become
D         available, on their own turn, as per their merit position in
          the select list."

        On the basis of the aforesaid order, the said appellants
    were given appointment.
E
         15. After the decision of the Punjab and Haryana High
    Court was delivered the present appellants approached the
    Principal Bench of the tribunal and the tribunal did not accept
    the prayer which has been given the stamp of approval by the
    High Court.
F
        16. In the course of hearing, learned senior counsel for the
  parties fairly stated that the decision rendered by the High Court
  of Punjab and Haryana has not been challenged before this
  Court and, therefore, we refrain from commenting about the
G legal defensibility of the said decision. However, it is clear as
  noon day that the appellants, neither in their initial rounds before
  the tribunal nor before the High Court, ever claimed any
  appointment with retrospective effect. In fact, the direction of
  the in respect of appellant No. 4 in the OA preferred by the
H appellant No. 4 was absolutely crystal clear that it would be
       VIJAY KUMAR KAUL v. UNION OF INDIA                   141
                [DIPAK MISRA, J.]
prospective. The said order was accepted by the said · A
appellant. However, as is manifest, after the decision was
rendered by the Punjab and Haryana High Court wisdom
dawned or at least they perceived so, and approached the
Principal Bench for grant of similar reliefs. In the petition before
the tribunal, they had stated in their factual portion which are to B
the following effect: -

     "(n) That since at the time of filing writ by applicant/
     petitioner Nos. 1,2 and 3 and an O.A. by applicant/
     petitioner No. 4, the issue of entitlement to anti-dating      C
     appointment and back wages was under adjudication
     before the Hon'ble High Court of Punjab and Haryana in
     trye case of Parveen Singh & Ors., the applicants/
     petitioners in the present O.A. did not seek such relief in
     their respective writ and O.A.
                                                                    D
     (o) That when the High Court upheld the orders of the
     tribunal in case of Parveen Singh & Ors., that they are
     entitled to the benefit of anti-dating appointment and the
     consequential benefits, the applicants/petitioners made
     individual representations to the respondents seeking the      E
     benefit of High Court's judgment dated 12.7.2001
     delivered in C.W.P. No. 1156 of 2001. A true photocopy
     of this judgment is already available as Annexure A-5 at
     page 22-32 of the O.A."

      17. Thus, it is demonstrable that they did not approach the
                                                                    F
legal forum but awaited for the verdict of the Punjab and
Haryana High Court. As far as appellant No. 4 is concerned,
we really see no justifiable reason on his part to join the other
appellants when he had acceded to the first judgment passed
in his favour to a limited extent by the tribunal. This was an      G
ambitious effort but it is to be borne in mind that all ambitions
are neither praiseworthy nor have the sanction of law. Be that
as it may, they approached the tribunal some time only in 2004.
The only justification given for the delay was that they had been
making representations and when the said benefit was declined       H
    142        SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A by communication dated 31.7.2004, they moved the tribunal.
  The learned senior counsel for the appellants fairly stated that
  as the doctrine of parity gets attracted, they may only be
  conferred the benefit of seniority so that their promotions are
  not affected.
B
        18. It is necessary to keep in mind that claim for the
  seniority is to be put forth within a reasonable period of time.
  In this context, we may refer to the decision of this Court in P.S.
  Sadasivaswamy v. State of Tamil Nadu 5 , wherein a two-Judge
  Bench has held thus: -
c
          "It is not that there is any period of limitation for the Courts
          to exercise their powers under Article 226 nor is it that
          there can never be a case where the Courts cannot
          interfere in a matter after the passage of a certain length
D         of time. But it would be a sound and wise exercise of
          discretion for the Courts to refuse to exercise their
          extraordinary powers under Article 226 in the case of
          persons who do not approach it expeditiously for relief and
          who stand by and allow things to happen and then
E         approach the courts to put forward stale claims and try to
          unsettle matters."

        19. In Kamataka Power Corporation Ltd. & Anr. v. K.
    Thangappan & Anr. this Court had held thus that delay or
  !aches is one of the factors which is to be borne in mind by the
F High Court when they exercise their discretionary powers under
  Article 226 of the Constitution. In an appropriate case the High
  Court may refuse to invoke its extraordinary powers if there is
  such negligence or omission on the part of the applicant to
  assert his right as taken in conjunction with the lapse of time
G and other circumstances, causes prejudice to the opposite
  party. Even where fundamental right is involved vie matter is
  still within the discretion of the Court as pointed out in Durga

    5.   AIR 1974 SC 2271.
H 6. AIR 2006 SC 158.1
        VIJAY KUMAR KAUL v. UNION OF INDIA                     143
                 [DIPAK MISRA, J.]
Prasad v. Chief Controller of Imports and Exports (AIR 1970            A
SC 769). Of course, the discretion has to be exercised judicially
and reasonably.

     20. In City Industrial Development Corporation v. Oosu
Aardeshir Bhiwandiwala & Ors7 . this Court has opined that one         8
of the grounds for refusing relief is that the person approaching
the High Court is guilty of unexplained delay and the laches.
Inordinate delay in moving the court for a Writ is an adequate
ground for refusing a Writ. The principle is that courts exercising
public law jurisdiction do not encourage agitation of stale claims     C
and exhuming matters where the rights of third parties may have
accrued in the interregnum.

     21. From the aforesaid pronouncement of law, it is
manifest that a litigant who invokes the jurisdiction of a court
for claiming seniority, it is obligatory on his part to come to the    D
court at the earliest or at least within a reasonable span of time.
The belated approach is impermissible as in the meantime
interest of third parties gets ripened and further interference
after enormous delay is likely to usher in a state of anarchy.
                                                                       E
     22. The acts done during the interregnum are to be kept
in mind and should not be lightly brushed aside. It becomes an
obligation to take into consideration the balance of justice or
injustice in entertaining the petition or declining it on the ground
of delay and laches. It is a matter of great significance that at
one point of time equity that existed in favour of one melts into
                                                                       F
total insignificance and paves the path of extinction with the
passage of time.

     23. In the case at hand, as the factual matrix reveals, the
appellants knew about the approach by Parveen Singh and                G
others before the tribunal and the directions given by the tribunal
but they chose to wait and to reap the benefit only after the
verdict. This kind of waiting is totally unwarranted.

7.   AIR 2009 SC 571.                                                  H
    144      SUPREME COURT REPORTS                [2012] 6 S.C.R.


A      24. Presently we shall refer to the authorities commended
  by the learned senior counsel for the appellants. In K. C.
  Sharma (supra) the factual scenario was absolutely different
  and thus, distinguishable. In C. Lalitha (supra) it has been held
  that justice demands that a person should not be allowed to
B derive any undue advantage over other employees. The
  concept of justice is that one should get what is due to him or
  her in law. The concept of justice cannot be stretched so as to
  cause heart-burning to more meritorious candidates. In our
  considered opinion, the said decision does not buttress the
c case of the appellants.
          25. In Maharaj Krishan Bhat (supra), the appellants had
    made a representation on 8.1.1987. A similar representation
    was sent by one Abdul Rashid on that date to the Hon'ble Chief
    Minister of State of Jammu and Kashmir with a request to
D   consider the case for appointment to the post of PSI by granting
    necessary relaxation in rules against 50% direct recruitment
    quota. The Director General of Police vide his letter dated
    23.1.1987 recommended the name of Hamidullah Dar, one of
    the applicants, for appointment and he was appointed as PSI
E   vide order dated 1.4.1987. The other appellants were not
    extended the benefit of appointment. Under those
    circumstances the High Court of Jammu and Kashmir in SWP
    No. 351 of 1987 directed the Director General of Police to
    consider the case of the appellants. Thereafter Abdul Rashid
F   filed a similar petition which was admitted. Pursuant to the
    direction of the High Court the Director General of Police
    considered the applications of Mohd. Abbas and Mohd. Amim
    but rejected the prayer on 13.12.1991. When the matter of
    Abdul Rashid, the appellant, came up the learned single Judge
G   allowed the writ petition relying on the earlier judgment. The
    Government of Jammu and Kashmir filed Letters Patent Appeal
    which was dismissed. In the context, this Court opined that the
    Division Bench should not have refused to follow the judgment
    by another Division Bench. Attention was raised that initial
H   violation was committed by the State Government and which
       VIJAY KUMAR KAUL v. UNION OF INDIA                      145
                [DIPAK MISRA, J.]

was violative of Articles of 14 and 16 of the Constitution and        A
the said mistake could not be perpetuated. In that context it was
held as follows: -

     "21. It was no doubt contended by the learned counsel for
     the respondent State that Article 14 or 16 of the                B
     Constitution cannot be invoked and pressed into service
     to perpetuate illegality. It was submitted that if one illegal
     action is taken, a person whose case is similar, cannot
     invoke Article 14 or 16 and demand similar relief illegally
     or against a statute."
                                                                      c
Thereafter the Bench proceeded to state as follows: -

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

     26. We respectfully concur with the said observations but
we cannot be oblivious of the fact that the fact situation in that
case was totally different. Hence, the said decision is not
applicable to the case at hand.                                       G

     27. In the case at hand it is evident that the appellants had
slept over their rights as they perceived waiting for the judgment
of the Punjab and Haryana High Court would arrest time and
thereafter further consumed time submitting representations
                                                                      H
    146        SUPREME COURT REPORTS                [2012] 6 S.C.R.


A   and eventually approached the tribunal after quite a span of
    time. In the meantime, the beneficiaries of Punjab and Haryana
    High Court, as we have been apprised, have been promoted
    to the higher posts. To put the clock back at this stage and
    disturb the seniority position would be extremely inequitable
B   and hence, the tribunal and the High Court have correctly
    declined to exercise their jurisdiction.

        28. Another aspect needs to be highlighted. Neither before
  the tribunal nor before the High Court, Parveen Singh and
C others were arrayed as parties. There is no dispute over the
  factum that they are senior to the appellants and have been
  conferred the benefit of promotion to the higher posts. In their
  absence, if any direction is issued for fixation of seniority, that
  is likely to jeopardise their interest. When they have not been
  impleaded as parties such a relief is difficult to grant. In this
D context we may refer with profit to the decision in lndu Shekhar
  Singh & Ors. v. State of UP. & Ors8 . wherein it has been held
  thus: -

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

        29. In Public Service Commission, Uttaranchal v. Mamta
    Bisht & Ors 9 . this Court while dealing with the concept of
F necessary parties and the effect of non-impleadment of such
    a party in the matter when the selection process is assailed
    observed thus: -

          "7 .... : .. . In Udit Narain Singh Malpaharia v. Additional
G         Member, Board of Revenue, Bihar & Anr., AIR 1963 S(;
          786, wherein the Court has explained the distinction
          between necessary party, proper party and proforma party

    8.   AIR 2006 SC 2432.
H   9.   AIR 2010 SC 2613.
            VIJAY KUMAR KAUL v. UNION OF INDIA               147
                     [DIPAK MISRA, J.]
    and further held that if a person who is likely to suffer from   A
    the order of the Court and has not been impleaded as a
    party has a right to ignore the said order as it has been
    passed in violation of the principles of natural justice. More
    so, proviso to Order I, Rule IX of Code of Civil Procedure,
    1908 (hereinafter called CPC) provide that non-joinder of        B
    necessary party be fatal. Undoubtedly, provisions of CPC
    are not applicable in writ jurisdiction by virtue of the
    provision of Section 141, CPC but the principles enshrined
    therein are applicable. (Vide Gulabchand Chhotalal
    Parikh v. State of Gujarat; AIR 1965 SC 1153; Babubhai           c
    Muljibhai Patel v. Nandlal, Khodidas Barat & Ors., AIR
    1974 SC 2105; and Sarguja Transport Service v. State
    Transport Appellate Tribunal, Gwalior & Ors. AIR 1987
    SC 88).

       8.    In Prabodh Verma & Ors. v. State of UP. & Ors. AIR D
       1985 SC 167; and Tridip Kumar Dingal & Ors. v. State
       of West Bengal & Ors. (2009) 1 SCC 768 : (AIR 2008 SC
       (Supp) 824), it has been held that if a person challenges
       the selection process, successful candidates or at least
       some of them are necessary parties."                      E
     30. From the aforesaid enunciation of law there cannot be
any trace of doubt that an affected party has to be impleaded
so that the doctrine of audi alteram partem is not put into any
ha~~-                                                                F

     31. Analysed on the aforesaid premised reasons, we do
not see any merit in these appeals and, accordingly, they are
dismissed with no order as to costs.

D.G.                                       Appeals dismissed.        G