# 12 S.C.R. 193 STATE OF UTTAR PRADESH & ORS v. ARVIND KUMAR SRIVASTAVA & ORS

- **Citation:** [2014] 12 S.C.R. 193
- **Court:** Supreme Court of India
- **Decided:** 2014-10-17
- **Case number:** Civil Appeal No. 9849 of 2014
- **Bench:** J. Chelameswar, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/12-s-c-r-193-state-of-uttar-pradesh-ors-v-arvind-kumar-srivastava-ors-29532
- **Pages:** 25

## Headnote

Service jurisprudence - Service matters - Principles to
A
B
be applied - Held: When a particular set of employees is
given relief by the court, all other identically situated persons C
need to be treated alike by extending that benefit, or else
would amount to discrimination and would be violative of Art.
14 - However, the principle is subject to exceptions in the
form of /aches and delays as well as acquiescence - Where
judgment of the Court was in rem with intention to give benefit D
to all similarly situated persons, whether they approached the
Court or not, the obligation is cast upon the authorities to itself
extend the benefit thereof to all similarly situated person - And
where judgment was in personam, the benefit of the said
judgment shall accrue to the parties before the court - On
E
facts, respondents challenged the cancellation order of their
appointment after a period of nine years, on finding that some
other persons whose appointment orders were also cancelled
had got the relief - There was unexplained delay and /aches
in filing the claim petition after 9 years - Respondents have
F
not joined the service nor working like the employees who
succeeded in earlier case before the tribunal -Thus,
respondents cannot be given appointment as of today, after
a period of 27 years.
Allowing the appeal, the Court
HELD: 1.1 Normal rule is that when a particular set
of employees is given relief by the Court, all other
identically situated persons need to be treated alike by
193
G
H
194
SUPREME COURT REPORTS
(2014] 12 S.C.R.
A extending that benefit. Not doing so would amount to
discrimination and would be violative of Article 14 of the
Constitution of India. This principle needs to be applied
in servi<;e matters more emphatically as the service
jurisprudence evolved by this Court from time to time
B postulates that all similarly situated persons should be
treated similarly. Therefore, the normal rule would be that
merely because other similarly situated persons did not
approach the Court earlier, they are not to be treated
differently. However, this principle is subject to well
c recognized exceptions in the form of laches and delays
as well as acquiescence. Those persons who did not
challenge the wrongful action in their cases and
acquiesced into the same and woke up after long delay
only because of the reason that their counterparts who
D had approached the Court earlier in time succeeded in
their efforts, then such employees cannot claim that the
benefit of the judgment rendered in the case of similarly
situated persons be extended to them. They would be
treated as fence-sitters and laches and delays, and/or the
E acquiescence, would be a valid ground to dismiss their
claim. However, this exception may not apply in those
cases where the judgment pronounced by the Court was
judgment in rem with intention to give benefit to all
similarly situated persons, whether they approached the
Court or not. With such a pronouncement the obligation
F is cast upon the authorities to itself extend the benefit
thereof to all similarly situated person. Such a situation
can occur when the subject matter of the decision
touches upon the policy matters, like scheme of
regularisation. On the other hand, if the judgment of the
G Court was in personam holding that benefit of the said
judgment shall accrue to the parties before the Court and
such an intention is stated expressly in the judgment or
it can be impliedly found out from the tenor and language
of the judgment, those who want to get the benefit of the
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
195
said judgment extended to them shall have to satisfy that
A
their petition does not suffer from either laches and
delays or acquiescence. [Para 23] [215-H; 216-A-H; 217A-B]
1.2. In the instant case, the selection process took
8
place in the year 1986. Appointment orders were issued
in the year 1987, but were also cancelled vide orders
dated June 22, 1987. The respondents did not challenge
these

## Text

_Characters 0–39,723 of 49,836. This is a partial read: ask again with offset=39723 for what follows._

(2014) 12 S.C.R. 193
STATE OF UTTAR PRADESH & ORS.
v.
ARVIND KUMAR SRIVASTAVA & ORS.
(Civil Appeal No. 9849 of 2014)
OCTOBER 17, 2014
[J. CHELAMESWAR AND A.K. SIKRI, JJ.]
Service jurisprudence - Service matters - Principles to
A
B
be applied - Held: When a particular set of employees is
given relief by the court, all other identically situated persons C
need to be treated alike by extending that benefit, or else
would amount to discrimination and would be violative of Art.
14 - However, the principle is subject to exceptions in the
form of /aches and delays as well as acquiescence - Where
judgment of the Court was in rem with intention to give benefit D
to all similarly situated persons, whether they approached the
Court or not, the obligation is cast upon the authorities to itself
extend the benefit thereof to all similarly situated person - And
where judgment was in personam, the benefit of the said
judgment shall accrue to the parties before the court - On
E
facts, respondents challenged the cancellation order of their
appointment after a period of nine years, on finding that some
other persons whose appointment orders were also cancelled
had got the relief - There was unexplained delay and /aches
in filing the claim petition after 9 years - Respondents have
F
not joined the service nor working like the employees who
succeeded in earlier case before the tribunal -Thus,
respondents cannot be given appointment as of today, after
a period of 27 years.
Allowing the appeal, the Court
HELD: 1.1 Normal rule is that when a particular set
of employees is given relief by the Court, all other
identically situated persons need to be treated alike by
193
G
H
194
SUPREME COURT REPORTS
(2014] 12 S.C.R.
A extending that benefit. Not doing so would amount to
discrimination and would be violative of Article 14 of the
Constitution of India. This principle needs to be applied
in servi<;e matters more emphatically as the service
jurisprudence evolved by this Court from time to time
B postulates that all similarly situated persons should be
treated similarly. Therefore, the normal rule would be that
merely because other similarly situated persons did not
approach the Court earlier, they are not to be treated
differently. However, this principle is subject to well
c recognized exceptions in the form of laches and delays
as well as acquiescence. Those persons who did not
challenge the wrongful action in their cases and
acquiesced into the same and woke up after long delay
only because of the reason that their counterparts who
D had approached the Court earlier in time succeeded in
their efforts, then such employees cannot claim that the
benefit of the judgment rendered in the case of similarly
situated persons be extended to them. They would be
treated as fence-sitters and laches and delays, and/or the
E acquiescence, would be a valid ground to dismiss their
claim. However, this exception may not apply in those
cases where the judgment pronounced by the Court was
judgment in rem with intention to give benefit to all
similarly situated persons, whether they approached the
Court or not. With such a pronouncement the obligation
F is cast upon the authorities to itself extend the benefit
thereof to all similarly situated person. Such a situation
can occur when the subject matter of the decision
touches upon the policy matters, like scheme of
regularisation. On the other hand, if the judgment of the
G Court was in personam holding that benefit of the said
judgment shall accrue to the parties before the Court and
such an intention is stated expressly in the judgment or
it can be impliedly found out from the tenor and language
of the judgment, those who want to get the benefit of the
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
195
said judgment extended to them shall have to satisfy that
A
their petition does not suffer from either laches and
delays or acquiescence. [Para 23] [215-H; 216-A-H; 217A-B]
1.2. In the instant case, the selection process took
8
place in the year 1986. Appointment orders were issued
in the year 1987, but were also cancelled vide orders
dated June 22, 1987. The respondents did not challenge
these cancellation orders till the year 1996, i.e. for a period
of 9 years. It means that they had accepted the
cancellation of their appointments. They woke up in the
C
year 1996 only after finding that some other persons
whose appointment orders were also cancelled got the
relief. By that time, nine years had passed. The earlier
judgment had granted the relief to the parties before the
Court. These respondents have not joined the service
D
nor working like the employees who succeeded in earlier
case before the Tribunal. As of today, 27 years have
passed after the issuance of cancellation orders.
Therefore, not only there was unexplained delay and
laches in filing the claim petition after period of 9 years,
E
it would be totally unjust to direct the appointment to give
them the appointment as of today, i.e. after a period of 27
years when most of these respondents would be almost
years of age or above. Tlius, the order of High Court as
well as that of the tribunal set aside. [Para 24] [217-C-G]
F
lnder Pal Yadav & Ors. v. Union of India & Ors. 1985 (3)
SCR 837:(1985) 2 SCC 648; KC. Sharma & Ors. v. Union
of India 1997 (3) Suppl. SCR87:(1997) 6 SCC 721; State
of Kamataka & Ors. v. C. Lalitha 2006 (1) SCR 971 : (2006)
G
2 SCC 747; N. T. Devin Katti v. Kamataka Public Service
Commission (1990) 3 SCC 157; Maharaj Krishna Bhatt &
Anr.
v.
State of Jammu & Kashmir 2008 (11 )
SCR 670:(2008) 9 SCC 24; Mis. Rup Diamonds & Ors. v.
Union of India & Ors.1989 (1) SCR 13 :(1989) 2 SCC 356;
H
196
SUPREME COURT REPORTS
(2014] 12 S.C.R.
A State of Karnataka & Ors. v. S.M. Kotrayya & Ors. 1996 (5)
Suppl. SCR 426: (1996) 6 SCC 267; S.S. Rathore v. State
of MP. 1989 (1) Suppl. SCR 43:(1989) 4 sec 582; U.P.
Jal Nigam & Anr. v. Jaswant Singh & Anr. 2006 (8 ) Suppl.
SCR 916 :(2006) 11 SCC 464; Harwindra Kumar v. Chief
B Engineer, Karmik 2005 (5) Suppl. SCR 317 :(2005) 13
sec 300 - referred to.
c
D
E
F
Halsbury's Laws of England para 911, p.395 -
referred to.
Case Law Reference:
1985 (3) SCR 837
Referred to
Para 11
1997 (3) Suppl. SCR 87
Referred to
Para 12
2006 (1) SCR 971
Referred to
Para 13
(1990) 3 sec 151
Referred to
Para 14
2008 (11) SCR 670
Referred to
Para 15
1989 (1) SCR 13
Referred to
Para 17
1996 (5) Suppl. SCR 426 Referred to
Para 19
1989 (1) Suppl.SCR 43
Referred to
Para 19
2006 (8) .Suppl. SCR 916
Referred to
Para 20
2005 (5) Suppl. SCR 317
Referred to
Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9849 of 2014.
From the Judgment and order dated 01.02.2012 in WP
G No. 1988 of 2011 of the High Court of Judicature at Allahabad,
Lucknow Bench.
H
P. N. Misra, Abhisth Kumar, Sudeep Kumar, Som Raj
Choudhury for the appellants.
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
197
S. R. Singh, Praveen Swarup, Sushma Verma, R.K.
A
Singh, Sushant K. Yadav, Mohd. Muztaba, Namita Choudhary,
Puneet Jain, Christi Jain, Khushbu Jain, Chhaya Kirti, Pratibha
Jain for the respondents.
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. Leave granted.
2. This appeal, preferred by the State of Uttar Pradesh and
its functionaries, assails the order of the High Court whereby
B
the writ petition filed by the appellants has been dismissed and
C
the order of the Uttar Pradesh Public Services Tribunal,
Lucknow (for short, 'the Tribunal') passed in favour of the
respondents herein, is affirmed.
3. To mention at the outset, the Tribunal as well as the High
0
Court has given the respondents herein benefit of the order
passed by the Court in earlier round of litigation filed by similarly
situated persons. The appellants contend that as far as these
respondents are concerned, they never approached the Court
seeking such a relief and were only fence-sitters and, therefore,
relief should not have been granted to them even if they were
E
similarly situated as those persons who have been granted
relief in the petitions filed by them. Respondents, ori the other
hand, contend that once it is found that both sets of persons
are identically placed, the impugned orders granting them the
same benefit are in tune with the constitutional mandate
F
enshrined in Article 14 of the Constitution of India.
4. Such a situation has not occurred for the first time in the
present appeal. There are many decisions of this Court. If
outcome alone of those judgments is seen, one would find that
G
in some cases the Courts have extended the benefit to the
similarly situated persons, whereas, in some other cases
similar benefit is denied to the second set of people who
approached the Court subsequently. However, on delving deep
into the rationale and reasoning of these two sets of cases, one
H
198
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A is able to mentally rexognise the logic behind different
outcomes. Under what circumstances such a benefit can be
extended and what are the reasons for denying the same, shall
be discerned after taking note of those judgments. But, before
undertaking that exercise, it would be apt to take note of the
B facts of this case in order to understand and appreciate as to
how the respondents are placed.
5. It was sometime in the year 1986 that the Chief Medical
Officer, Varanasi, had advertised certain posts of Homeopathic
Compounder and Ward Boys in various newspapers.
C Respondents herein applied for the said post and participated
in the selection process. After the interviews, they were kept in
the waiting list. Those who were in the select list were offered
the appointments. Some of those candidates who were higher
in merit and were offered the appointments did not join. For this
D reason, candidates in the waiting list were issued appointment
letters by the then Chief Medical Officer. These included the
respondents herein as well. However, before the respondents
could join their duties, new Chief Medical Officer assumed the
charge and blocked their joining. Thereafter, vide order dated
E June 22, 1987 he even cancelled the said appointments made
by his predecessor for these Class-Ill and Class-IV posts i.e.
Homeopathic Compounder and Ward Boys.
6. The respondents filed the suit in the Court of City Munsif,
F Varanasi challenging the aforesaid orde~ dated June 22, 1987
cancelling their appointments by the new Chief Medical Officer.
This suit was registered as Suit No. 695/1987. It appears that
this suit could not be taken to its logical conclusion as\same
was dismissed for non-prosecution because of non appearance
G of the advocate of the respondents. The respondents herein did
not take any further steps in the said suit either by filing
application for restoration of the suit or challenging the said
order in appeal. In fact, there was a complete quietus on the
part of these respondents.
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
199
[A.K. SIKRI, J.]
7. It so happened that a few other candidates who were
A
also affected by the same orders dated June 22, 1987, whereby
their appointments were cancelled, approached the Tribunal
challenging the legality, validity and proprietary of the said order
on several grounds. One of the grounds taken was that before
cancellation of their appointments, no show-cause notice was
B
given to them. The Tribunal decided the case filed by them in
their favour vide judgment dated August 16, 1991 holding the
impugned order dated June 22, 1987 as illegal and void and
quashed the same. Against the order of the Tribunal, the State
filed the writ petition in the High Court. This writ petition was c
dismissed on August 27, 1992 thereby confirming the order
passed by the Tribunal. The Special Leave Petition filed by the
State met the same fate as that was also dismissed by this
Court on August 12, 1994. In this manner, the Tribunal's order
dated August 16, 1991 attained finality and the persons who
D
had approached the Tribunal got the appointments.
8. The respondents herein waited all this while, that is till
the dismissal of the Special Leave Petition in the year 1994. It
is only thereafter, in the year 1995, the respondents gave a
representation for giving appointments to them as well on th~
E
strength of the judgment of the Tribunal given in the case of other
persons, claiming parity. This representation was rejected vide
order dated June 06, 1995 by the Chief Medical Officer. Against
this rejection the respondents approached the Tribunal by filing
Claim Petition No. 96/1996. As mentioned above, the said
F
petition was allowed by the Tribunal on the ground that they were
in the same position in which the other successful candidates
were given relief and as such these respondents were also be
entitled to the same relief. The High Court has affirmed the
order of the Tribunal.
G
9. The moot question which requires determination is as
to whether in the given case, approach of the Tribunal and the
High Court was correct in extending the benefit of earlier
judgment of the Tribunal, which had attained finality as it was
H
1
200
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A affirmed till the Supreme Court. Whereas the appellants
contend that the respondents herein did not approach the Court
in time'and were fence-sitters and, therefore, not entitled to the
benefit of the said judgment by approaching the judicial forum
belatedly. They als~ plead the some distinguishing features on
s the basis of which it is contended that the case of the
respondents herein is not at par with the matter which was dealt
with by the Tribunal in which order dated June 22, 1987 were
passed giving benefit to those candidates who had approached.
the Court at that time. On the other hand, the respondents claim
c that their case is identical to those who had filed the Application
before Tribunal inasmuch as appointments of the respondents
were also cancelled by the same order dated June 22, 1987
and, therefore, there is no reason to deny the same treatment
which was meted out to the said persons, as denial thereof
0 would amount to invidious discrimination which is anathema to
the right of equality enshrined under Article 14 of the
Constitution of India.
10. It is of interest to note that both the sides, in support
of their respective submissions, have referred to certain
E judgments and the reading whereof would demonstrate that in
certain cases benefit of a particular judicial pronouncement is
extended to those who are identically situated on the principle
of equality. On the other hand, there is a line of judgments
denying such a benefit to the second group which approaches
F the Court afterwards, even when the said second group is
similarly situated as the persons belonging to the first group.
However, there is no conflict between the two sets of cases. In
order to find out the principles laid down on the basis of which
benefit of the earlier judgment is extended to those coming
G subsequently and the situations where such benefit is denied,
we will have to undertake a journey into these details and lay
down clear parameters.
11. Let us first take note of those judgments, which are
referred to by the learned counsel for the respondents, wherein
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
201
[A.K. SIKRI, J.]
this Court has applied the ratio of the earlier judgments to the
A
similarly situated persons giving them the same benefit. First
case, in the lilJe of these cases, referred to by the learned
counsel for the respondents is the judgment in lnder Pal Yadav
& Ors. v. Union of India & Ors'. That was a case where the
services of casual labour employed on railway projects
B
continuously for more than a year were terminated on the ground
that the projects where these casual labour were working had
been wound up. Challenging their termination, writ petitions
under Article 32 of the Constitution of India were filed in this
Court. During the pendency of these petitions, Railway c
Administration framed scheme for their absorption as
temporary workmen on completion of 360 days of continuous
employment. This scheme was made applicable to those who
were in service as on January 01, 1984. In view of this
development, writ petitions were set out for hearing to examine
0
the fairness and justness of the Scheme, particularly, on the
issue as to whether choice of date of January 01, 1984 was
arbitrary or discriminatory. The Court was not enthused by
fixation of January 01, 1984 as the cut off date on the ground
that it was likely to introduce an invidious distinction between
E
similarly situated persons and expose some workmen to
arbitrary discrimination flowing from fortuitous Court's order. It
was noticed that in some matters, the Court had granted interim
stay before the workmen could be retrenched while in some
other cases no such interim orders had been passed. Thus, as
a result of grant of interim relief by stay/ suspension of the order
F
of retrenchment, persons benefitted by the said interim order
and were treated in service as on January 01, 1984. Those who
failed to obtain the interim relief, their services were terminated
in the meantime and, therefore, they were not in service as on
January 01, 1984. The Court pointed out that though both the
G
groups belong to the same category, one category could get
the benefit of the scheme with cut off date of January 01, 1984,
whereas the other category would fail to get the benefiU
1.
(1985) 2 sec 648.
H
202
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A advance of the scheme. The Court also noted that there may
be some other persons, similarly situated, who could not afford
to rush to the Court and they would also be left out. Giving these
reasons, the date of January 01, 1984 fixed in the scheme was
struck down and the Court while accepting the scheme framed
B by the Railway Administration, modified the date from January
01, 1984 to January 01, 1981. While doing so, following
reasons were given:
c
D
E
"5 ... There is another area where discrimination is likely to
rear its ugly head. These workmen come from the lowest
grade of railway service. They can ill afford to rush to court.
Their federations have hardly been of any assistance. They
had individually to collect money and rush to court which
in case of some may be beyond their reach. Therefore,
some of the retrenched workmen failed to know at the
door of justice because these doors do not open unless
hudge expenses are incurred. Choice in such a situation,
even without crystal gazing is between incurring expenses
for a litigation with uncertain outcome and hunger from day
to day. It is a Hobson's choice. Therefore, those who could
not come to the Court need not be at comparative
disadvantage to those who rushed in here. If they are
otherwise similarly situated, they are entitled to similar
treatment if not by anyone else at the hands of this Court."
F
We would like to point out at this stage itself that the writ
petitions were filed by the concerned affected persons which
were already pending before the Court and it was the step
taken by the Railway Administration itself which framed the
Scheme for their absorption. In such circumstances, the
G question of fixing the rationality of cut off date in the said
Scheme arose for consideration and the Court was of the view
that while implementing the Scheme, those whose services
were terminated before January 01, 1984, they would be
discriminated against. Thus, while giving the direction to
implement the scheme which was framed by the Railway
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
203
[A.K. SIKRI, J.]
Administration itself, the Court gave the direction to start
A
absorbing those with longest service, which is clear from the
reading of para 6 of the said judgment, and we reproduce the
same hereunder:
"6. To avoid violation of Article 14, the scientific and
B
equitable way of implementing the scheme is for the
Railway Administration to prepare, a list of project casual
labour with reference to each division of each railway and
then start absorbing those with the longest service. If in the
process any adjustments are necessary, the same must
be done. In giving this direction, we are considerably
C
influenced by the statutory recognition of a principle well
'
known in industrial jurisprudence that the men with longest
service shall have priority over those who have joined later
on. In other words, the principle of last come first go or to
reverse it first come last go as enunciated in Section 25D
G of the Industrial Disputes Act, 1947 has been accepted.
We direct accordingly."
This case, therefore, may not be of direct relevance.
12. Next judgment is of the Constitution Bench judgment
of this Court in the case of K.C. Sharma & Ors. v. Union of
lndia2• In this case the Court was directly concerned with the
issue of granting benefit of the earlier judgment. The
Government had passed Notification dated December 05,
1988 which obviously affected the pension of retired
employees, retrospectively. These persons had not challenged
E
F
the said Notification within the limitation period. However, in
some other case filed by similarly situated persons, a Full
Bench of the Central Administrative Tribunal declared the
Notification invalid vide its judgment dated December 16, 1993.
G
After this Notification was declared invalid, the appellants also
claimed the benefit of that judgment from the Railways. On
Railways refusal to extend the benefit, they filed Application in
2.
(1997) s sec 121.
H
204
SUPREME COURT REPORTS
(2014] 12 S.C.R.
A the Central Administrative Tribunal in April 1994. This
Application was dismissed by the Tribunal as time barred and
against the judgment of the Tribunal these appellants had
approached this Court. The Court, in a brief order which runs
into six paragraphs, held that delay in filing the Application
B should have been condoned and the appellants should have
been given relief by the Tribunal on the same terms as were
granted to others by the Full Bench judgment of the Tribunal .
After stating the aforesaid facts in the earlier paragraphs of the
order, the reasons for. extending the benefit are contained in
c para 6 thereof, which reads as under:
D
E
"6. Having regard to the facts and circumstances of the
case, we are of the view that this was a fit case in which
the Tribunal should have condoned the delay in the filing
of the application and the appellants should have been
given relief in the same terms as was granted by the Full
Bench of the Tribunal. The appeal is, therefore, allowed,
the impugned judgment of the Tribunal is set aside, the
delay in filing of OA No. 77 4 of 1994 is condoned and the
said application is allowed. The appellants would be
entitled to the same relief in the matter of pension as has
been granted by the Full Bench of the Tribunal in its
judgment dated 16-12-1993 in Oas No. 395-403 of 1993
and connected matters. No order as to costs."
F
Immediate comment which is called for by us to the
aforesaid judgment is that there is no detailed discussion in the
said order. What can be observed from the reading of this
order is that the earlier judgment of the Tribunal striking down
the Notification dated December 05, 1988 was treated as
G judgment in rem. Naturally, when the Notification itself is struck
down and it was a matter of pension, benefit thereof was to be
given to the others as well. It appears that for this reason the
Constitution Bench observed that delay should have been
condoned giving relief to the appellants also in the same terms
as was granted by the Full Bench of the Tribunal.
H
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
205
[A.K. SIKRI, J.]
13. In State of Karnataka & Ors. v. C. Lalitha3 , which is
A
the next case relied upon by the learned counsel for the
respondents, our attention was drawn to the following passage
from the said judgment:
"29. Service jurisprudence evolved by this Court from time
8
to time postulates that all persons similarly situated should
be treated similarly. Only because one person has
approached the court that would not mean that persons
similarly situated should be treated differently. It is
furthermore well settled that the question of seniority should
C
be governed by the rules. It may be true that this Court took
notice of the subsequent events, namely, that in the
meantime she had also been promoted as Assistant
Commissioner which was a Category I post but the
direction to create a supernumerary post to adjust her must
be held to have been issued only with a view to
D
accommodate her therein as otherwise she might have
been reverted and not for the purpose of conferring a
benefit to which she was not otherwise entitled to."
14. We have to understand the context in which the
E
aforesaid observations came to be made. That was a case
where the order passed in the first round of litigation between
the same parties came up for construction and its effect. The
background in which the issue arose was that an amendment
made in the reservation policy of the State was challenged in
F
N. T. Devin Katti v. Karnataka Public Service Commission'.
In that judgment, this Court had declared that the revised
reservation policy was not applicable to the selections initiated
prior thereto. It resulted in the consequential direction to the
State Government to appoint N.T. Devin Katti (appellant in that
G
case) on the post of Tehsildar with retrospective effect. At the
same time, it was also made clear that for the purposes of
seniority such persons would have to be placed below the last
3.
(2006) 2 sec 747.
4.
(1990) 3 sec 1s1.
H
206
SUPREME COURT REPORTS
[2014] 12 S.C.R.
A candidates appointed in the year 1976 and they would a~o be
not entitled to any back wages. Insofar as, respondent C. Lalitha
is concerned, on the basis of revised reservation policy, she
was appointed as Tehsildar. After the rendition of the aforesaid
judgment in N. T. Devin Katti's case (supra), she approached
B the Karnataka Administrative Tribunal by filing an OA claiming
appointment as Assistant Commissioner. The Tribunal
dismissed the OA. However, her appeal against the order of
the Tribunal was allowed by this Court vide orders dated March
15, 1994, taking note of the fact that she was selected and
c shown in the first list, which was upheld by the Court in the case
of N. T. Devin Katti (supra). Since she had already been
promoted to Class I Post of Assistant Commissioner by then,
for her appointment the Court directed that if no vacancies are
available, the State Government will create a supernumerary
0
post and for the purpose of seniority, she had to be placed
below the last candidate appointed in the year 1976 and was
not entitled to any back wages. It is clear from these directions
that her appeal was allowed giving same directions as given
in N. T. Devin Katti (supra). It so happened that though her
E name was in the first list, which was upheld in N. T. Devin
Katti's case (supra), her rank was little below and there were
few persons above her. As per her rank in the general merit
Category I posts, after taking the opinion of the Public Service
Commission, it was decided by the Government to consider
her for the post of Assistant Controller of Accounts , a Category
F
I Post, as the marks secured by her were below the marks
secured by the candidates selected as Assistant Controller of
Accounts. She refused to accept the said post and approached
the Tribunal again. The Tribunal dismissed the OA filed by her.
Against that order of the Tribunal she approached the
G Karnataka High Court, which allowed the writ petition directing
the State to implement order dated March 15, 1994 which was
passed by this Court in the earlier round. Against this order of
the High Court, the State preferred appeal and it is in this,
backdrop that effect of the earlier order dated March 15, 1994
H came up for consideration. It was argued by the State that effect
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
207
[A.K. SIKRI, J.]
of the order dated March 15, 1994 was to relegate the parties
A
to the same position as if the reservation policy was not
amended and if so construed, the respondent having been
placed in the supplementary list could not have been laid any
claim for any post in the administrative service. It is this
contention which was accepted by this Court noticing another
B
crucial fact that there were many persons who were higher in
the merit than the respondent and the effect of the earlier order
passed by this Court could not have been to ignore the said
merit list and give something to the respondent which was not
admissible in law. The Court held that merit should be the sole c
criteria for selection of candidates and the earlier judgment was
to be construed as if it had been rendered in accordance.with
law. While holding so, the Court also sited many case law to
demonstrate that the judgments are not to be read as a statute.
It is in the aforesaid context that observations are made in para
D
29, on which heavy reliance has been placed by the respondent.
When we understand the impact of the observations
contextually, we find that again the issue at hand is totally
different.
15. Next case in the line, on which the respondents rely,
E
is Maharaj Krishna Bhatt & Anr. v. State of Jam mu &
Kashmir. In that case, the appellants and some other
Constables approached the Chief Minister of the respondent
State for relaxation of rules relating to 50% direct recruitment
F
quota for appointment as Sub-Inspectors of Police (PSI). The
Chief Minister's office in turn called for the Director General's
recommendations, who recommended the name of one person
only, namely, Hamidullah Dar. Hamidullah Dar was accordingly
appointed as PSI with effect from April 01, 1987. Thereupon,
G
other persons also approached the Court. In the case of one
Abdul Rashid Rather, the Single Judge of the High Court
allowed his writ petition. The respondent State filed LPA which
was dismissed, and subsequently, special leave petition was
s.
(ZOOS) s sec 24.
H
208
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[2014] 12 S.C.R.
A also dismissed by this Court. Consequently, Abdul Rashid
Rather was also appointed as PSI. It would be pertinent to
mention that the appellants in the said appeal, along with two
others, had also filed the writ petition in the year 1987, which
was disposed of on September 13, 1991 and a direction was
B issued to the Director General of Police to consider their cases
for appointment to the post of PSI by relaxing of rules. Pursuant
to the said directions, the Director General of Police
considered and rejected the cases of the appellants for
appointment without giving any reasons. These appellants
c initially filed the contempt petition, but thereafter preferred fresh
writ petition being Writ Petition No. 3735 of 1997. This writ
petition of the appellants was pending when the orders of
appointment came to be passed in the writ petition filed by
Abdul Rashid Rather and on the basis of that judgment, Abdul
D Rashid Rather had been given the appointment with effect from
April 01, 1987. In this scenario, when writ petition of the
appellants came up for hearing before the Single Judge of the
High Court, it was allowed vide judgment dated April 30, 2001
following the judgment in the case of Abdul Rashid Rather,
which had been affirmed by this Court as well. However, the
E State filed appeal thereagainst and this appeal was allowed
by the Division Bench of the High Court. Even the review
petition filed by the appellants was dismissed by the Division
Bench. Special Leave Petition was filed challenging the
judgment of the Division Bench, which was the subject matter
F in the case of Maharaj Krishan Bhatt (supra). Leave was
granted and ultimately appeal was allowed holding that the
appellants were also entitled to the same treatment. While
doing so, the Court made the following observations:
G
"23. In fairness and in view of the fact that the decision in
Abdul Rashid Rather had attained finality, the State
authorities ought to have gracefully accepted the decision
by granting similar benefits to the present writ petitioners.
· It, however, challenged the order passed by the Single
H
Judge. The Division Bench of the High Court ought to have
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
209
[A.K. SIKRI, J.]
dismissed the letters patent appeal by affirming the order
A
of the Single Judge. The letters patent appeal, however,
was allowed by the Division Bench and the judgment and
order of the learned Single Judge was set aside. In our
considered view, the order passed by the learned Single
Judge was legal, proper and in furtherance of justice,
B
equity and fairness in action. The said order, therefore,
deserves to be restored."
16. No doubt, the Court extended the benefit of the
decision in Abdul Rashid Rather's case to the appellants.
C
However, what needs to be kept in mind is that these appellants
had not taken out legal proceedings after the judgment in Abdul
Rashid Rather's case. They had approached the Court well in
'
time when Abdul Rashid Rather had also filed the petition.
17. The submission of learned counsel for the appellants,
D
on the other hand, is that the respondents did not approach the
Court earlier and acquiesced into the termination orders.
Approaching the Court at such a belated stage, after the
judgment in some other case, was clearly impermissible and
such a petition should have been dismissed on the ground of
E
laches and delays as well as acquiescence. It was submitted
that in such circumstances this Court has taken consistent view
to the effect that benefit of judgment in the other case should
not be extended even if the persons in the two sets of cases
were similarly situated. Mr. P.N. Misra, learned senior counsel
F
appearing for the appellants, pointed out in this behalf that
though the orders were passed by the appellants on June 22,
1987, the respondents have filed their claim petition before the
Tribunal only in the year 1996, i.e. after a period of 9 years from
the date of passing of the orders. He drew our attention to the
G
following observations in Mis. Rup Diamonds & Ors. v. Union
of India & Ors6.:
"8. Apart altogether from the merits of the grounds for
6.
(1989) 2 sec 356.
H
A
B
c
D
E
210
SUPREME COURT REPORTS
[2014] 12 S.C.R.
rejection - on which it cannot be aid that the mere rejection
of the special leave petitions in the cases of M/s Ripa!
Kumar & Co., and Mis. H. Patel & Co., could, by itself, be
construed as the imprematur of this Court on the
correctness of the decisions sought to be appealed against
- there is one more ground which basically sets the
present case apart. Petitioner are re-agitating claims
which they had not pursued for several years. Petitioners
were not vigilant but were content to be dormant and chose
to sit on the fence till somebody else's case came to be
decided. Their case cannot be considered on the analogy
of one where a law had been declared unconstitutional and
void by a court, so as to enable persons to recover monies
paid under the compulsion of a law later so declared void.
There is also an unexplained, inordinate delay in preferring
this writ petition which is brought after almost an year after
the first rejection. From the orders in M/s Ripa! Kumar &
Co.'s case and Mis H. Patel & Co.'s case it is seen that
in the former case the application for revalidation and
endorsement was made on March 12, 1984 within four
months of the date of the redemption certificate dated
November 16, 1983 and in the latter case the application
for revalidation was filed on June 20, 1984 in about three
months from the Redemption Certificate dated March 9,
1984."
F
18. That case pertains to import facility for import of OGL
items available under para 185(3) and (4) of Import - Export
Policy, 1982-83 to export houses after discharging export
obligation on advance/imprest licence. The petitioners had
applied for, and were granted, this imprest licence for the
G import of uncut and unset diamonds with the obligation to fulfil
certain export commitment for the export, out of India, of cut and
polished diamonds of the FOB value, stipulated in each of the
imprest licences. As per the petitioners, they have discharged
their export obligation and, therefore, in terms of para 185(4) ·
H of the Import - Export policy, they were entitled to the facility
STATE OF U.P. v. ARVIND KUMAR SRIVASTAVA
211
[A.K. SIKRI, J.]
for the import of OGL items. However, they sought revalidation
A
four years after discharge of export obligation and five years
after the expiry of the licence. This claim was rejected by the
authorities on the ground of delay. Writ petition was filed in this
Court one year after such rejection. In these circumstances, the
Court dismissed the writ petition for approaching the Court
B
belatedly and refused to follow the orders passed in another
petitions by this Court, which was sought to be extended on the
ground that the petitions were exactly similar to those petitions
which were preferred in another case.
No doubt, writ petition was dismissed on the ground of C
unexplained inordinate delay, but it would be necessary to
observe that it was not a service matter. However, the principle
of delay and laches would have some relevance for our
purposes as well.
19. State of Karnataka & Ors. v. S.M. Kotrayya & Ors7•
D
is, on the other hand, a service matter. Here, the respondents,
while working as teachers in the Department of Education,
availed of Leave Travel Concession (LTC) during the year
1981-82. But later it was found that they had never utilised the
E
benefit of L TC but had drawn the amount and used it.
Consequently, recovery was made in the year 1984-86. Some
persons in similar cases challenged the recovery before the
Administrative Tribunal which allowed their Applications in
August 1989. On coming to know of the said decision, the
respondents filed Applications in August 1989 before the
Tribunal with an application to condone the delay. The Tribunal
condoned the delay and allowed the OAs. Appeal against the
said order was allowed by this Court holding that there was
unexplained delay in approaching the Tribunal. The Court relied
upon the Constitution Bench case in S.S. Rathore v. State of G
M.P.8, which deals with the manner in which limitation is to be
F
7.
(1996) e sec 2e1.
0.
(1989) 4 sec 582.
H
212
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[2014] 12 S.C.R.
A counted while approaching the Administrate Tribunal under the
Administrative Tribunal Act, 1985. Here again, on the ground
of delay, the Court refused to extend the benefit of judgment
passed in respect of other similarly situated employees.
20. Both these judgments,· along with some other
8 judgments, were take note of in U.P. Jal Nigam & Anr. v.
Jaswant Singh & Anr.• That was a case where the issue
pertained to entitlement of the employees of U.P. Jal Nigam to
continue in service up to the age of 60 years. In Harwindra
Kumarv. Chief Engineer, Karmik' 0 this Court had earlier held
C that these employees were in fact entitled to continue in service
up to the age of 60 years. After the aforesaid decision, a spat
of writ petitions came to be filed in the High Court by those who
had retired long back. The question that arose for consideration
was as to whether the employees who did not wake up to
D challenge their retirement orders, and accepted the same, and
had collected their post retirement benefits as well, could be
given relief in the light of the decision delivered in Harwindra
Kumar (supra). The Court refused to extend the benefit applying
the principle of delay and !aches. It was held that an important
E factor in exercise of discretionary relief under Article 226 of the
Constitution of India is !aches and delay.