# • [2014) 11 S.C.R. 1053 · H.C, KULWANT SINGH & ORS v. H.C. DAYA RAM & ORS

- **Citation:** [2014] 11 S.C.R. 1053
- **Court:** Supreme Court of India
- **Decided:** 2014-06-30
- **Case number:** Civil Appeal No. 5859 of 2014
- **Bench:** Anil R. Dave, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2014-11-s-c-r-1053-h-c-kulwant-singh-ors-v-h-c-daya-ram-ors-29386
- **Pages:** 43

## Headnote

Service Law:
A
B
Punjab Police Rules, 1934 - r. 13. 7, 13. 8 - Promotion c
of Constables to the rank of Head Constables - Rules
pertaining to eligibility criteria for promotion changed by first
amended Rules - Said Rules again changed by _.second
amended Rules -
Constables to be governed by first
amended Rules or second amended Rules - Held: On facts,
D
the vacancies occurring during the period 4.3.1982 till
17.6.1988 are to be governed by the amended rule that came
into force on 4.3.1982 and the vacancies occurring after
17.6.1988 amendment, are to be governed by the Rule as
amended by the notification dated 17.6.1988 -
The latter . E
decision which completely misread the earlier decision and
erroneously observed that every confirmed employee had a
vested right, is unsustainable - Tribunal did not appreciate
that the right was restricted to the accrued vacancies - It was
open to the department to take steps in accordance. with the
amended Rule in respect of vacancies to the post" of Head
F
Constables which might have accrued SL!bsequent to the
coming into force of the amended Rules which may fall vacant
thereafter - If that order is allowed to reign it would have
disastrous impact on justice and would tantamount to
miscarriage of justice - High Court rightly quashed the said G
order - Constitution of India, 1950 - Article 142.
Practice and procedure - Necessary party -
Nonimpleadment - Effect of - Held: When by the determination
1053
H
.A
B
1054 . SUPREME COURT REPORTS
[2014] 11 S.C.R.
"'
of the tribunal the rights of the parties had squarely been
affectf;d, the situation commanded that they should have been
impleaded being necessary parties - Non-impleadment
permit!$ them to take the plea that the said order does not bind
them - Plea.
·
Dismissing the appeal, the Court
HELD: 1.1. The tribunal in Achhar Chand's case,
. which was decided on 27.6.1988, had strictly gone by the
principles stated in Y. V. Rangaiah by directing to prepare
C a fresh list of Constables for sending to Lower School
Course in accordance with the pre-amended Rule as far
as vacancies of Head Constables which had come into
existence prior to notification dated 17 .6.1988. It had
further clarified that it is open to the respondent to act in
D accordance with the amended Rule in respect of the
vacancies/posts of Head Co'nstables which may have
occurred subsequent to coming into force of the
amended Rule. [Para 33] [1086-E-G]
E·
1.2. The real cause of grievance arose for the
respondents on 23.9.1998 and on that ground the High
Court repelled the submission of delay and laches. The
facet of non-impleadment_ has two limbs. First, the mere
awareness of pendency of litigation because it is
F mentioned "subject to decision in Original Application"
does not make the order binding upon them and the
second, by the time the judgment dated 8.1.1990 was
pronounced ail the respondent were sent for Lower
School Course and promoted and, therefore, they were
clearly identified as the ultimately affected parties and
G hence, were necessary parties for the purpose of
adjudication of the lis. [Para 39] [1089-8-E]
•
1.3. In the instant case, the authorities did not accept
the order ·but challenged the same before this Court and .
H
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1055
this Court disposed of the same in '1996 by observing
A
that as the respondents therein had already completed
their training, the SLP has been rendered infructuous.
However, this Court chose not to decide the lis. The
factual matrix would reveal that the authorities acted in
accordance with the earlier order of the tribunal and fixed
B
the seniority. That was the grievance which was agitated
by the appellants before the tribunal wherein the order
was passed on 23.9.1998. Had the respondents been
made parties to the original application in the second
round, which gave rise to the order dated 8.1.1990, they c
could have been in a position to assert about the legal
position and faced their fate, making themse

## Text

_Characters 0–39,962 of 82,799. This is a partial read: ask again with offset=39962 for what follows._

•
[2014) 11 S.C.R. 1053
· H.C, KULWANT SINGH & ORS.
v.
H.C. DAYA RAM & ORS.
· (Civil Appeal No. 5859 of 2014)
JUNE 30, 2014
[ANIL R. DAVE AND DIPAK MISRA, JJ.]
Service Law:
A
B
Punjab Police Rules, 1934 - r. 13. 7, 13. 8 - Promotion c
of Constables to the rank of Head Constables - Rules
pertaining to eligibility criteria for promotion changed by first
amended Rules - Said Rules again changed by _.second
amended Rules -
Constables to be governed by first
amended Rules or second amended Rules - Held: On facts,
D
the vacancies occurring during the period 4.3.1982 till
17.6.1988 are to be governed by the amended rule that came
into force on 4.3.1982 and the vacancies occurring after
17.6.1988 amendment, are to be governed by the Rule as
amended by the notification dated 17.6.1988 -
The latter . E
decision which completely misread the earlier decision and
erroneously observed that every confirmed employee had a
vested right, is unsustainable - Tribunal did not appreciate
that the right was restricted to the accrued vacancies - It was
open to the department to take steps in accordance. with the
amended Rule in respect of vacancies to the post" of Head
F
Constables which might have accrued SL!bsequent to the
coming into force of the amended Rules which may fall vacant
thereafter - If that order is allowed to reign it would have
disastrous impact on justice and would tantamount to
miscarriage of justice - High Court rightly quashed the said G
order - Constitution of India, 1950 - Article 142.
Practice and procedure - Necessary party -
Nonimpleadment - Effect of - Held: When by the determination
1053
H
.A
B
1054 . SUPREME COURT REPORTS
[2014] 11 S.C.R.
"'
of the tribunal the rights of the parties had squarely been
affectf;d, the situation commanded that they should have been
impleaded being necessary parties - Non-impleadment
permit!$ them to take the plea that the said order does not bind
them - Plea.
·
Dismissing the appeal, the Court
HELD: 1.1. The tribunal in Achhar Chand's case,
. which was decided on 27.6.1988, had strictly gone by the
principles stated in Y. V. Rangaiah by directing to prepare
C a fresh list of Constables for sending to Lower School
Course in accordance with the pre-amended Rule as far
as vacancies of Head Constables which had come into
existence prior to notification dated 17 .6.1988. It had
further clarified that it is open to the respondent to act in
D accordance with the amended Rule in respect of the
vacancies/posts of Head Co'nstables which may have
occurred subsequent to coming into force of the
amended Rule. [Para 33] [1086-E-G]
E·
1.2. The real cause of grievance arose for the
respondents on 23.9.1998 and on that ground the High
Court repelled the submission of delay and laches. The
facet of non-impleadment_ has two limbs. First, the mere
awareness of pendency of litigation because it is
F mentioned "subject to decision in Original Application"
does not make the order binding upon them and the
second, by the time the judgment dated 8.1.1990 was
pronounced ail the respondent were sent for Lower
School Course and promoted and, therefore, they were
clearly identified as the ultimately affected parties and
G hence, were necessary parties for the purpose of
adjudication of the lis. [Para 39] [1089-8-E]
•
1.3. In the instant case, the authorities did not accept
the order ·but challenged the same before this Court and .
H
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1055
this Court disposed of the same in '1996 by observing
A
that as the respondents therein had already completed
their training, the SLP has been rendered infructuous.
However, this Court chose not to decide the lis. The
factual matrix would reveal that the authorities acted in
accordance with the earlier order of the tribunal and fixed
B
the seniority. That was the grievance which was agitated
by the appellants before the tribunal wherein the order
was passed on 23.9.1998. Had the respondents been
made parties to the original application in the second
round, which gave rise to the order dated 8.1.1990, they c
could have been in a position to assert about the legal
position and faced their fate, making themselves liable to
challenge the order .. After they appeared in the
competitive examination and selected being more
meritorious, indubitably they were an identified category.
0
It was not a vague or unidentified body. When by the
determination of the.tribunal their rights had squarely
been affected, the situation commanded that they should
have been impleaded being necessary parties and their
non-impleadment now permits them to take the plea that
E
the said order does not bind them. The High Court
appreciated the chronology of events and quashed the
order dated 8.1.1990 though it could not have entertained ·
the prayer in that regard as per L. Chandra Kumar's case,
but while dealing with the lis that travelled to the High
Court from the order dated 23.9.1998 it was within its
F
domain to declare that the order dated 8.1.1990 is not
binding on the writ petitioners therein. There was no bar
and, therefore, the High Court's order does not suffer
from any legal infirmity on that score.[Para 44] [1091-G;
1092-A~G]
G
1.4. The order dated 8.1.1990 is based entirely on the
earlier order dated 28.9.1988 which was rendered by the
tribunal being approached by the real aggrieved parties
H
1056
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A and the tribunal relying on binding precedents, had held
that the applicants therein were entitled to be considered
unde·r the amended Rule that came into force on 4.3.1982 ·
in respect of the vacancies accrued during the pe'riod,'
i.e., 4.3.1982 to 17.6.1988. The latter decision dated
B 8.1.1990 completely misread the said decision and
erroneously observed that every confirmed employee
had a vested right. It did not properly a.ppreciate that the
right was restricted to the accrued vacancies and
assumedly remained oblivious to the categorical findings
C of the earlier decision that it was ·open to the respondents
therein to take steps in accordance with the amended
Rule in respect of vacancies to the post of Head
Constables which might have accrued subsequent to the
coming into force of the amended Rules which may fall
0
vacant thereafter. The order dated 8.1.1990 is absolutely
unsustainable. The cornerstone· of the impugned order
dated 28.9.1998 is the order dated· 8.1.1990. If this is
allowed to stand, it would tantamount to palpable
·injustice. Interference with the decision of the High Court
would perpetuate grave injustice and the redemption
E shall remain forever a mirage [Para 45, 46, 47] [1092-GH; 1093-A-E; 1094-E]
.
1.5. The obtaining fact situation commands that this
Court should invoke the jurisdiction under Article 142 of
F the Constitution for doing complete justice. In the instant
case, the earlier order of the tribunal was legally sound.
In the second case the tribunal, though seems to have.
relied upon Achhar Chand's case, has totally
misunderstood the ratio laid down therein. That apart, the
G tribunal had not kept itself alive to the essential facts,
n;imely, publication of results, selection of candidates <:1
and the impact it would have on their rights if they are
not made parties. Considering all the aspects (n a
cumulative manner it can be stated with certitude that' if''!'.'
H that order is allowed to reign it would have disastrous '·'
•
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1057
impact on justice and would tantamount to miscarriage
A
of justice. The High Court, while dealing with the matter
under Articles 226 and 227 of the Constitution, could have
ignored the order dated 8.1.1990. Despite the said
conclusion by invoking jurisdiction under Article 142(1)
of the Constitution, non-affirmance of the order of the
B
High Court by accepting the order dated 8.1.1990 would
be constructing the pillar of injustice. The decision which
is a sanctuary of errors could not have been allowed to
gain the benefit of sanctuary of protection and
acceptance. That would be travesty of justice. Hence, the c
said order deserved quashment and the High Court has
rightly done so. [Para 48] [1094-F; 1095-B-F]
Y. V. Rangaiah and others v. J. · Sreenivasa Rao & ors.
AIR 1983 SC 852; P. Ganeshwar Rao and others v. State of
Andhra Pradesh and others 1988 Suppl. SCR 805 :1988
D
(Supp) SCC 740; Om Parkash v. Delhi Administration and
others 1988 (2) AISJ 133; L. Chandra Kumar v. Union of India
and others 1997 (2) SCR 1186 :(1997) 3 SCC 261; State
of Rajasthan v. R. Dayal and others 1997 (2) SCR
108 :(1997) 10 SCC 419; B.L. Gupta and Anr. v. MCD (1968)
E
9 SCC 223; Atjun Singh Rathore and Ors. v. B.N. Chaturvedi
and Ors. 2001 (11) SCR 320 : (2007) 11 sec 605; A.M.S.
Sushanth & Ors. v. M Sujatha and Ors. (2000) 10 SCC 197;
M. V. Ravindranath & Ors. v. Union of India & Ors. (2000) 10
SCC 474; State of Assam v. Union of India & Ors. 2010 (12
F
) SCR 413 : (2010) 10 SCC 408; Public Service
Commission, Uttaranchal v. Mamta Bisht & Ors. 2010 (7 )
SCR 289: (2010) 12 SCC 204; K.R.C.S. Balakrishna Chetty
& Sons & Co. v. State of Madras 1961 (2) SCR 736; Union
of India & Ors. v. Brigadier P.S. Gill 2012 (2) SCR 571 : G
(2012) 4 SCC 463; Khetrabasi Biswal·v. Ajaya Kumar Baral
& Ors. 2003 (6 ) Suppl. SCR 8 : (2004) 1 sec 317; Shiv
Kumar Tiwari (Dead) by LRs. v. Jagat Narain Rai & Ors.
(2001) 10 SCC 11; State of Himachal Pradesh & Anr. v.
Kai/ash Chand Mahajan & Ors. 1992 (1). SCR 917 :,1992
H
1058
SUPREME COURT REPORTS
[2014) 11 S.C.R.
A Supp (2) SCC 351; State of Bihar and Ors. v. Kameshwar
Prasad Singh & Ors. 2000 (3) SCR 764: (2000) 9 SCC 94;
Jamshed Horuwsji Wadia v. Board of Trustees, Port of
Mumbai & Arir. 2004 (1) SCR 483: (2004) 3 SCC 214; K.
Ajit Babu and Ors. v. Union of India and Ors. 1997 (3) Suppl.
B
SCR 56 :(1997) 6 SCC 473; Rama Rao & Ors. v. M.G.
Maheshwara Rao & Ors. 2007 (9) SCR 446:(2007) 14 SCC
54; Udit Narain Singh Malpaharia v. Board. of Revenue 1963
Suppl. SCR 676: AIR 1963 SC 786; Prabodh Verma &
Ors. v. State of U.P. & Ors 1985 (1) SCR 216 :(1984) 4 SCC
c 25f; Tridip Kumar Dingal & Ors. v. State of WB. & Ors. 2008
(15) SCR 194 :(2009) 1 SCC 768 - referred to.
D
E
F
I
Case Law Reference:
AIR 1983 SC 852
Referred to
1988 Suppl. SCR 805
Referred to
1988 (2) AISJ 133
Referred to
1997 (2) SCR 1186
Referred to
1997 (2) SCR 108
(1968) 9 sec 223
2007 (11) SCR 320
(2000) 10 sec 191
(2000) 10 sec 474
2010 (12) SCR 413
. Referred to
Referred to
Referred to
'
Referred to
G
2010 (7) SCR 289
Referred to
Referred to
Referred to
Referred to
1961 (2) SCR 736 ·
2012 (2 ) SCR 571
Referred to
H
2003 (6) Suppl. SCR 8
Referred to
Para 5, 16,
20
Para 5, 20,
Para 5
Para 19, 20,
39, 43
Para 20
Para 20
Para 20
Para 20
Para 20
Para 20
Para 20
Para 20
Para 20
Para 20
•
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1059
(2001) 10 sec 11
Referred to
Para 20
1992 (1) SCR 917
Referred to
Para 20
2000 (3) SCR 764
Referred to
Para 20.
2004 (1) SCR 483
Referred to
Para 20
1997 (3) Suppl. SCR 56
Referred to -
Para 20
2007 (9) SCR 446
Referred to
Para 20
1963 Suppl. SCR 676
Referred to
Para 43
1985 (1) SCR 216
Referred to.
Para 43
2008 (15) SCR 194
Referred to
Para 43
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
_5859 of 2014.
From the Judgment and Order dated 18.12.2007 in CWP
No. 16550 of 1998 of the High Court of Punjab & Haryana at
Chandigarh.
P. S. Patwalia, Ashok K. Mahajan for the appellants.
Nidhesh Gupta, Nidhi Gupta, Tarun Gupta, S. Janani,
Gaurav M. Librehan, Janani, Mukti Chowdhary for the
respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. In this appeal, by special leave, apart from interpreting
A
B
c
D
E
F
the precise connotative effect of Punjab Police Rules, 1934 (for
G
short "the Rules"), specially Rule 13.7 of the Rules that governs
the promotion of the constables in Chandigarh Police to the
post of Head Constable, and the amendments that were
incorporated on 4.3.1982, and another incarnation of tre said
amendments vide amendment dated 6.2.1988, we have also
H
1060
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A called upon to decide whether the High Court by the impugned
judgment and order dated 18.12.2007 passed in Civil Writ
Petition No. 16550 of 1998 whereby the orders passed by the
Central Administrative Tribunal, Chandigarh Bench,
Chandigarh (for short "the tribunal") dated 8.1.1990 and
B 23.9.1998 were assailed has redeemed the cause of justice
within the requisite parameters of law by lancinating both the
·orders of the tribunal and further issuing directions to recast the
seniority list of Head Constables on the foundation of iseniority
rules and not to revert any Head Constable or the Assistant
c Sub-Inspector with the rider that they shall avail further promotion
solely on the basis of their revised seniority warranting no
interference by this Court or has acted beyond the ambit of
iurisdiction in its appreciation and application of well settled
principles that would make the order pregnable inviting its
D extinction.
·
3. The factual score needs to be depicted with
necessitous chronology. The appellants and respondent Nos.
1 to 34 were recruited as Constables in Chandigarh Po.lice by
the Union Territory, Chandigarh and they are governed by the
E Rules as applicable to the Union Territory of Chandigarh. Rule
13.7 of the Rules which dealt with the promotions to the posts
of Head Constables from the Constables prior to amEmdment
of the Rule on 4.3.1982, provided that the names of Police
Constables for admission to Lower School Course were
F
required to be entered in List 'B' in order of merit determined
by the Departmental Promotion Committee on the basis of test
scheme in (i) Parade (ii) written test in general law and {iii)
examination of service record. After the amendment of the said
Rule a batch of confirmed Constables were sent for Lower
G School Course at Police Training College, Phillaur. The said
H
· cour5e was for six months and it was held twice a year - one
commencing in April and the other in October. A batch of fifteen
Constables duly selected on the basis of the amended Rules
was sent for Lower School Comse in April, 1988. Thereafter
•
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1061
[DIPAK MISRA, J.]
vide notification dated 17.6.1988 the Rule 13.7 was amended
A
by Punjab Police (Chandigarh Amendment) Rules, 1988 which
came into force on the date of publication in the Chandigarh
Administration Gazette. After the Rule was amended, the Senior
Superintendent of Police, Chandigarh Administration issued a
letter dated 27.6.1988 to the effect that a test would be held
B
some time in September, 1988 as laid down in the amended
Rules.
4. Being aggrieved by the said order Achhar Chand and
· 24 others filed 0.A. No. 51 O-CH/88 before the tribunal
C
challenging the validity of the said order. It was contended
before the tribunal that as they were confirmed Constables,
they had acquired a valuable right to be considered for
admission to the Lower School Course in accordance with the
pre-amended Rules, i.e., the rules that existed between
4.3.1982 and 17.6.1988. The said submission was resisted by
D
the Union of India and its functionaries asserting, inter alia, the
amended Rule 13.7 having come into force the Department
was entitled to go ahead with the selection as envisaged under
the Rules. The tribunal, while narrating the facts, observed that,
as conceded, 71 posts of Head Constables were created and
E
sanctioned from which date the amended Rule came into force,
and as against 71 posts, 15 Constables were sent for the
course started in April, 1988 and the remaining 56 posts were
yet to be filled up. It also took note of the fact that in the next
course beginning October, 1988 the Chandigarh Administration
F
had been allotted 50 seats for the Lower School Course.
5. Taking stock of the factual position, the tribunal opined
that all the confirmed Constables, including the applicants
before it, serving under Union Territory Chandigarh became
G
eligible for consideration for promotion to the posts of Head
Constables on the basis of unamended Rule 13.7 and the
question of Head Constables being appointed in accordance
with the amended Rule 13.7 could arise only thereafter. The
tribunal placed reliance on the decision in Y. V. Rangaiah and
H
1062
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A others v. J. Sreenivasa Rao & ors.' and P. Ganeshwar
Rao and others v. State of Andhra Pradesh and others2
and the decision of the Principal Bench of the tribunal in Om
Paikash v. Delhi Administration and others3 and,
accordingly quashed the order dated 27.6.1988 and directed
B the authorities to drop the proposed examination and prepare
a fresh list for sending Constables to the Lower School Course
at Police Training College, Phillaur in accordance with the preamended Rue 13.7 i.e. the rule as it existed prior to 17.6.1988
so far as the vacancies of Head Constables which had come ·
c into existence prior to the date of amended notification. The
·tribunal further directed that the criterion to be adopted by them
would be seniority-cum-merit as laid down therein, however, it
would be open to the administration to act in accordance with
the amended Rule in respect of the vacaneies/posts of Head
0
Constables which may have occurred subsequent to the coming
into force of the am.ended Rule or which may fall vacant
thereafter.
6. The competent authorities of Union Territory identified
those vacancies of Head Constables which had occurred prior
E to the amendment dated 17.6.1988 and by that process 56
vacancies were found to have occurred before the amendment
and accordingly.56 Constables were brought on List 'B' in order
of seniority as per provisions of unamendedRule 13.7 and other
F
formalities were carried out.
'
7. Thereafter, as the facts would undrape; on 28.10.1988
a list of eligible Constables/ad hoc Head Constables who
fulfilled the prescribed conditions ·to .sit in the competitive
examination to be held in January, 1989 was circulated. On
G 25.1.1989 a circular was issued to all the units regarding the
competitive test to be held on 11.2. 1989. In the meantime, three
1.
AIR 1983 SC 852.
2.
1988 (Supp) sec 740.
H 3.
1988 (2) AISJ 133.
•
•
H.C. KULWANT SINGH v. H.C. DAYARAM
1063
[DIPAK MISRA, J.]
Original Applications, i.e., O.A. Nos. 697/CH/88, 872/CH/88 and
A
137/CH/89 were filed before the tribunal challenging the validity
of the amended rules and with ancillary prayers which included
quashing of orders dated 28.10.1988 whereby th.e list was
drawn of the eligible Constables to participate in B-1 test, and
dated 25.1.1989 regarding conduct of B-1 test. The tribunal on
B
31.3.1989 dealt with the interim prayer and directed as folloiNs:
"Regarding fnterim relief we are of the view that in case
the selection of the Head Constable is stayed, the
applicants are not likely·to gain any thing thereby. On the
other hand, the Administration_ may suffer due to the
shortage of the Head Constables and the balance of
convenience is that the Chandigarh Administration should
c
be allowed to complete the selection of the Head
Constables, as already notified by them. But the validity
of this selection shall be subject to the final decision of
D
these cases. This will sufficiently safe guard the interests
of the applicants and no absolute stay order is called for
in these cases. While modifying our earlier interim orders
in these cases, we order that the selection of the Head
Constables may be made and given effect to, subject to
the final decision of these cases."
8. In pursuance of the aforesaid interim order, out of total
48 constables declared qualified in the B-1 test seven
Constables earlier brought on List 'B' on 5.10.1988 and
2.2 .. 1989 in pursuance of unamended PPR 13.7 and 41
Constables declared qualified in the Bc1 Test in pursuance of
amended Rule brought on List 'B' on 19.4.1989; 20 Constables
(7 Constable in pursuance of unamended rule and first 13
Constables out of 41 ~onstables in pursuance of amended
Rule) were deputed for Lower School Course vide order dated
21.4.1989 as only 20 seats were allotted to the PPA Phillaur
for the session commencing April, 1989. Thereafter, the eligible
and qualified Constables were granted List ~c· and regular
promotion to the rank of Head Constables as per the provisions
E
F
G
H
1064
SUPREME COURT REPORTS
[2014] 11 ·S.C.R.
A of Rule 13.8(2) of the Rules. The rest 28 Constables were
deputed for Lower School Course vide order 4.10.1989.
9. The tribunal took note of the earlier amendment dated
4.2.1982 and the amended Rule on 17.6.1988 which was under
B assail and came to hold that the administrator of Union Territory
of Chandigarh was competent to issue the impugned
notification dated 17.6.1988 incorporating the amendment in
the Rule as applicable to Union Territory of Chandigarh and,
accordingly, opined that the Rule did not suffer from any .kind
of infirmity. After so holding the tribunal proceeded to deal with
C the Rule position as engrafted ir) Rule 13 in entirety and came
to hold that the process of election for promotion of a Constable
to the rank of Head Constable started at the time of selection
for the Course under Rule 13. 7 of the Rules of 1934 and that
every Constable had the right tO be sent for the promotional
D course at -the Police Training College, Phillaur in order of his
seniority determined in accordance with that Rule.
. .
10. Thereafter, the tribunal addressed itself to the question
whether by the impu.gned amendment of Rule 13.7 of Rules of
•
E 1934, on 17.6.1988 the applica'nts therein would have been
deprived of the right to be sent for the Lower School Course. It
was contended by the applicants therein that the impugned .
amendment had altogether deprived them of their right to be
sent for promotion course to enable them to be considered for
F promotion to the post of Head Constable in accordance with
the criterion prescribed by the unameRded Rule. The said
submission was resisted by the Union of India contending, inter
alia, the right of a Government servant was only to be
considered for promotion and that is a condition of service but
curtailment of chances of promotion by change of Rule are not
G conditions of service and the same could be changed to the
disadvantage of a Government servant. The tribunal observed
that there was no cavil over the proposition of law but
proceeded to deal with the issue whether the applicants therein
had any vestectright under the pre-amended Rule as confirmed
H
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1065
[DIPAK MISRA, J.)
Constables and whether they had been deprived of the said
A
vested right and came to hold that in case the selection of the
applicants was allowed to be made for the promotional course.
on the basis of the criterion provided in the Rule 13.7 as
amended by notification dated 17 .6.88, it would certainly divest
the applicants of their right to be selected on the basis of
B
·confirmation and seniority which right had become ari accrued
right in them under the pre-amended Rule and as such the
Rules would have retrospective operation contrary to the
· intention of the Rule making authority.
11. Be it noted, both sides placed reliance on Acchhar C
Chand's case and the tribunal understood that decision to the
effect that in the said case it was held that all the confirmed
constables had become eligible for promotion on the basis of
the unamended Rule 13.7 and accordingly directed that the
selection of the Constables for the promotional course who
D
were already in service before the amendment of 1988 would
be made in accordance with the criteria postulated in the preamended Rule as contained in the notification dated 4.3.1982
and, accordingly, it so directed. It was also clarified that those
Constables who had already successfully undergone the Lower
E
School Course training even on the basis of the amended Rule
13.7, would not be required to undergo the same training again.
12. Pursuant to the aforesaid order, as is evincible, 28
constables were brought on List 'B' in accordance with the
F
amended Rule and deputed for Lower School Course in
October, 1989 having qualified were promoted as officiating
Head Constables on 8.6.1990.
13. At this juncture, it is seemly to state that OA No. 1401/
CH of 1990 was filed by the appellants herein before the
G
tribunal for quashing of the order dated 28.12.1989 seeking
direction to the respondents to place .the private respondents
in List 'C' in the context of their seniority.
14. In course of adjudication, the tribunal referred to the
H
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[2014] 11 S.C.R.
A initial rule position, the amended rules, the decision rendered
in OA No. 510/CH/ 88-89 on 28.9.1988, the interim order
. passed on 31.3.1989 in O.A. No. 137/CH/89 and other
connected OAs, the order dated 19.4.1989 sending the
candidates therein for training which was subject to the final
B judgment, the final decision rendered by the tribunal on 9.1.1990
wherein the tribunal had opined that the Constables who were
in service prior to 17.6.1988 would be governed by the
unamended rules which prescribed seniority-cum-fitness, unlike
the amended Rules which prescribed the selection by a test ·
c with the further concession that the Constables who had been
sent for training under the interim order on the basis of the
written test, irrespective of seniority, would not be required to
undergo the same training again. After so narrating, the tribunal
adverted to the orders of the Department whereby how the
D Constables were sent for training on the basis of written test,
brought on list 'C' and, eventually, stood promoted as Head
Constables. The tribunal took note· of the fact that by virtue of
the same the Constables were promoted as Head Constables
before their seniors who were subsequently sent for !waining.
E That apart, the tribunal also apprised itself of the fact that the
matter was carried to this Court and it was dismissed as
infructuous as seniors had also been sent for training under the
unamended Rule 13.7. After stating the facts, the tribunal held
that the persons promoted to Head Constables who were sent
for training on the basis of the written.~xamination, irrespective.
F of seniority; under the interim order dated 31.3.1989 and
keeping in view its order whereby it had been laid down that
Constables in service prior to 17.6,1988 had a vested right to
be sent for training for promotion to Head Constables on the
basis of the unamended Rules i.e. seniority-cum-fitness and
G hence, the claim of the applicants was justified and the
respondents who are their juniors cannot steal a march over
them on promotion as. Head Constables. Being of the said
view, it set aside the order dated 28.12.1989 and directed the
H
respondents to re-arrange the seniority list of the applicants and
l
•
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1067
[DIPAK MISRA, J.]
the respondents according to their basic seniority in the rank
A
of Constables.
15. Being aggrieved by the said judgment and order dated
23.9.1998, the present respondents preferred CWP No. 1650
of 1998. While challenging the said order they also called in
8
question the justifiability of the order dated 8.1.1990. The High
Court referred to the order of the tribunal in QA No. 137/CH/
89, the interim order dated 19.4.1989, the order passed by this
Court on 29.1.1996 and the challenge to the order dated
18.12.1989 whereby the Constables.were sent for training on
C .
the basis of written test, irrespective of seniority and order
dated 28.12.1989 by which .• they were promoted as Head
Constables which was set aside by the tribunal in view of order
dated 23.9.1998 placing relian.ce on the decision dated
8.1.1990 in QA No. 137/CH/89 (Mewa Singh and others v.
Chandigarh Administration) wherein it was held that the preD
amended Rule would be applicable to all the Constables before
the amendment of 1988, took note of the contention that only
the vacancies which came into existence from 1.3.1982 to
17.6.1988 were required to be filed up on the basis of seniority
rule irrespective of the date of appointment of the Constables
E
and appreciated the stance that the tribunal had erred in
appreciating the earlier order passed in Acchhar Chand's
case inasmuch as vide order passed on 23.9.1988 a
categorical finding had been recorded that the vacancies which
arose after the amendment of the Rule on 4.3.1982 were
F
required to be ~lied up on the basis of amendment carried out
in the year 1982 and, therefore, the vacancies arising between
the interregnum period, i.e. 4.3.1982 to 17.6.1988 alone, the
Constables were ~equired to be sent for Lower School Course
on the basis of seniority Rule and for all other posts the test,
G
i.e., sitting in the written test, would apply. It also took note of
the stand that neither the petitioners nor any Constable from
their category was impleaded as a respondent in the
subsequent original application. On behalf of the respondents
the application was resisted on the ground that the writ petition
H
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[2014] 11 S.C.R.
A was hit by doctrine of delay and laches; that the petitioners were
aware of the pendency of the case before the tribu"nal as they
were sent to Lower School Course subject to the final decision
of the tribunal; that such application was allowed by the tribunal
on 8.1.1990 which was being sought to be challenged after
B lapse of eight years.
16. The High Court repelled the contention relating to delay
and laches on the ground thal the special leave petition was
dismissed as infructuous only in the year 1996 and that it was
dismissed as infructuous as both the categories of employees
C had undergone Lower School Course and this Court had left
the question of law open for consideration in appropriate case;_
and that the ultimate order dated 23.9.1998 affected the
petitioners therein and, therefore, the principle of delay and
laches would not frustrate the lis. Adverting to the merits, the
D High Court dealt with the additional affidavit filed by the Senior
Superintendent of Police which had asserted that 22 vacancies
in the rank of Head Constables had arisen on 4.3.1982 when
the Rule for bringing the Constables on List 'B' as per seniority
Rule was introduced; that on the date of amendment on
E 17.6.1988 there were 56 vacancies; that the tribunal had
recorded on 28.9.1988 that 71 posts were created and out of
71, 15 Constables were sent in April, 1988 and another 50 _
were sent in December, 1988 and, therefore, only six
Constables could be sent for Lower School Course on the basis
F of seniority Rule; and that all other vacancies were required to
be filled on the basis of test Rule incorporated vic;le amendment
in Rule 13.7 of the Rules on 17.6.1988. The Court thereafter
referred to the decision in Y. V. Rangaiah {supra) and held
thus:-
G
H
"The finding recorded by the Tribunal in its order dated
8.1.1990 that on being confirmed as Constable, they have
acquired a valuable right to be considered for admission
List 'B' and Lower School Course, cannot be sustained
in law. No employee can claim right to promotion as per
•
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1069
[DIPAK MISRA, J.]
Rule existed on the date of appointment or confirmati6n.
A
As per principle laid down in Y.V. Rangaiah's case (supra),
right has been recognized for consideration for promotion
as per Rule applicable on the date of availability of
vacancies/posts. Therefore, the finding recorded that all the
Constables before the amendment on 17.06.1988 would 'B
be sent for course in accordance with the seniority
criterion is wholly illegal, unjustified and untenable. The said
finding, in fact, runs counter to the judgment in Y.V.
Rangaiah's case (supra) as well as to the order passed
by the Tribunal on 28.09.1988. The order of the Tribunal
c
passed on 23.09.1998 take same view as in Mewa .
Singh's case (supra). The same suffers from same
infirmity. It is only the vacancies which arose between
4.3.1982 to 16.06.1988 i.e. 71 vacancies which will govern
the Seniority Rule. For all other posts/vacancies, it is the
0
Test Rule alone on the basis of which the candidates can
be sent for the course."
17. On the aforesaid basis the High Court quashed the
.orders dated 23.9.1998 and 8.1.1990 and after so stating the
High ·court, noticing the existing scenario, passed a protective
E
order to the effect that the Administration shall finalise the
seniority of Head Constables on the basis of Seniority Rule in
respect of 71 Constables, but as a result of finalization of the
seniority in accordance with the Rules, the respondents shall
not revert any Head Constable or Assistant Sub Inspector.
F
Such Head Constable or Assistant Sub Inspector shall continue
to discharge his/her duties but shall avail further promotion only
G
on the basis of his/her turn as per revised seniority.
18. We have heard Mr. P.S. Patwalia, learned senior
counsel for the appellants, Mr. Nidhesh Gupta, learned senior
counsel for respondents 1 to 34 and Mr. Gaurav M. Librehan,
along with Ms. Mukti Chowdhary, learned counsel for
respondents 36 to 38.
H
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A
B
c
D
E
F
G
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SUPREME COURT Rl:PORTS
[2014) 11 S.C.R.
19. Criticising the judgment and order passed by the High
Court Mr. Patwalia has raised the following contentions: -
I
(A)
There is manifest legal infirmity in the order
inasmuch as the High Court has entertained the writ
petition assailing the order dater 8.1.990 which
could not have been challenged before the High
Court as it was rendered prior to the decision in L.
Chandra Kumar v. Union of India and others".
(B)
The order of the tribunal dated 23.9.1998 being
founded on directions given on 8.1.1990 could not
have been found fault with by the High Court. That
apart the respondents slept over the rights, if any,
by not assailing the· order dated 8.1.1990 for a
period of eight years and, therefore, the principle
of delay and !aches gets squarely attracted and the
acceptance of the explanation by the writ petitioners
is totally faulty.
(C)
The rule position prior to the first amendment, i.e.,
4.3.1982 was initially'explained on 17.6.1988 and
was further explained on 8.1.1990 and, therefore,
the decisions ·rendered by the tribunal being
impeccable did not warrant any interference but the
High Court on an erroneous understanding of the
rule position and its impact has quashed the order
dated 8.1.1990 making its own order sensitively
susceptible.
(D)
The plea of impleadment which has been
assiduously sought to be built does not remotely
commends acceptation inasmuch as the
respondents were not only aware of the pending
litigation but also, more importantly, their obtaining
of training and availing of the consequent benefits
H 4.
(1997) 3 sec 261.
•
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1071
,
. [DIPAK MISRA, J.]
following from the said training were subject to the
A
· final decision of the original application.
20. Mr. Gupta, learned senior counsel appearing for the
affected respondents, in oppugnation, has canvassed as
follows: -
(a)
(b)
It is the settled legal position that the vacancies
occurring during the period 4.3.1982 till 17.6.1988
are to be governed by the amended rule that came
B
into force on 4.3.1982 and the vacancies occurring
after 17.6.1988 amendment, are to be governed by
C
the Rule as amended by the notification dated
17.6.1988. The said proposition of law is well
established as per the decisions in Y. V. Rangaiah
(supra), P. Ganeshwar Rao (supra), State of
Rajasthan v. R. Dayal and others,5 B.L. Gupta
D
and Anr. v. MCD6 and Arjun Singh Rathore and
Ors. v. B.N. Chaturvedi and Ors.7.
The initial decision of the tribunal rendered on
17.6.1988 is in accord with the principies laid
E
down by this Court, for it has been held therein that
insofar as vacancies of Head.Constables which had
come into existences prior to the notification dated
17.6.1988 were concerned, the same would be
governed by the Rule as it existed prior to 17.6.1988
and it was open to the respondent-employer to act
F
in accordance with the amended Rule in respect of
the vacancies which occurred subsequent to the
amendment of the Rule. Despite the said clear
decision in the field, the tribunal vide order dated
8.1.1990 opined that the confirmed Constables G
5.
(1997) 10 sec 419.
e.
(1998) 9 sec 223.
1.
(2001) 11 sec 605.
H
A
.B
c
D
1072
SUPREME COURT REPORTS
[2014] 11 S.C.R.
prior to the amendment dated 17.6.1988 had a
vested right for being selected for a promotional
course in accordance with the pre-amended Rule
which did not prescribe for a test and that makes
the order expressly illegal, null and void and cannot
be utilized against the present respondents who
were not impleaded as parties to the lis before the
tribunal. Once there is violation of principles of
natural justice, the order was not binding on the
respondents and is, in fact, a void order. The said
submission is supported by the authorities in
A.M.S. Sushanth & Ors. v. M. Sujatha and
Ors.8, M. V. Ravindra'nath & Ors. v. Union of
india & Ors.9, State of Assam v. Union of India
& Ors10• and Public Sflrvice Commission,
Uttaranchal v. Mamta Bisht & Ors.11 •
'
l
(c)
The submission of the appellants that the
respondents were aware of the pendency of OAs
before the tribunal inasmuch as in the letter of
appointment itself it was mentioned that their
E
appointments were subject to the decision in
Original Application and they had accepted the
appointment letters, is without any substance, for the
effect of non-impleadment of n_ecessary parties is
not altered by their ~eing aware of pending
F
litigation. The said proposition defeats the basic
rule that the onus of impleading the necessary
parties is on the appellants and solely because the
appointment order was' subject to the decision of
the tribunal would not reflect the mandate of
G
requirement of law. Quite apart from that, when by
virtue of the interim order passed by the tribunal
-------
8.
(2000) 10 sec 197.
9.
c2000) 10 sec 474.
10. (2010) 10 sec 408.
H 11. (2010) 12 sec 204.
•
•
H.C. KULWANT SINGH v. H.C. DAYA RAM
1073
(d)
(e)
[DIPAK MISRA, J.]
they were promoted, they became neces_sary
A
parties to be impleaded and nothing else could
justify their non-impleadment. The said assertion of
law is buttressed by the pronouncements in
K.R.C.S. Balakrishna Chetty & Sons & Co. v.
State of Madras12, Union of India & Ors. v.
B
Brigadier P.S. Gil/13, Khetrabasi Biswal v. Aja ya
Kumar Baral & Ors14• and Shiv Kumar Tiwari
(Dead) by LRs. v. Jagat Narain Rai & Ors.15•
By the time the judgment dated 8.1.1990 was
pronounced, all the respondents were sent for
C
Lower School Course and because of that position
they ought to have been treated as affected parties
and should have been arrayed as contesting
respondents. The principle of "ultimately affected
party" is squarely applicable to such a situation and
D
the said principle gets support from State of
Himachal Pradesh & Anr. v. Kailash Chand
Mahajan & Ors.16•
The tribunal was approached by the present
E
appellants in OA No. 1401/CH/1990 as the
answering respondents were brought on List 'C'
after clearing the test contemplated under Rule
13.8(2) of the Rules for implementation of the
judgment dated 8.1.1990 which suffered from series
F
of legal infirmities and hence, the said decision
could not have been applied to those who were not
parties to it and, more so, when this Court, while
dealing with the special leave petition, had left the
____
q_u_e_stion of law open; and as the same has .arisen . G
12. 1961 (2) SCR 736.
13. c2012) 4 sec 463.
14. (2004) 1 sec 311.
15. c2001) 10 sec 11 ..
16. 1992 supp (2) sec 351.
H
A
B
c
D
E
F
G
1074
SUPREME COURT REPORTS
[2014] 11 S.C.R.
at present, this Court should exercise the power
under Articles 136 and 142 of the Constitution to
deal with the same. For the aforesaid purpose,
inspiration is drawn from the.authorities in State of
Bihar and Or:s. v. Kameshwar Prasad Singh &
Ors17• and Jamshed Hormusji Wadia v.