# STATE OF BIHAR AND ORS. ETC v. KAMESHWAR PRASAD SINGH AND ANR. ETC. ETC

- **Citation:** [2000] 3 S.C.R. 764
- **Court:** Supreme Court of India
- **Decided:** 2000-04-27
- **Case number:** Civil Appeal No. 3005 of 2000
- **Bench:** S. Saghir Ahmad, RP. SETIIl
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-and-ors-etc-v-kameshwar-prasad-singh-and-anr-etc-etc-17410
- **Pages:** 27

## Headnote

Service Law :
Seniority-Period of officiation-Reckoning of-Sub-Inspector of Police-Promoted to the post of Inspector of Police on officiating basis-Order
clearly stipulated that employee cannot claim seniority till duly selectedClaim for seniority and promotion-Allowed by High Court-Validity ofHeld, officiating post held purely on ad hoc basis and not as per rules cannot
be considered for seniority-Thus, High Court erred in granting seniority and
promotion-However, in the interest of justice promotions made not disturbedBihar Police Manual Rules-Rules 660(C) and 649.
Constitution of India, 1950: Article 14-Equality-Concept of-Seniority-Claim-High Court by granting seniority committing illegality or irregularity-Another employee claiming similar relief-Validity of-Held, equality
is a positive concept and cannot be enforced in a negative manner-Benefits
extended to a person in an illegal or irregular manner cannot be claimed by
others on the ground of equality.
Practice and Procedure :
Parties-Non-joinder of parties-Effect of-Seniority-Claim for-Persons likely to be affected by the relief claimed, not impleaded as parties-Held,
the petition should be nonnally dismissed unless there existed specific reasons
for such non-impleadment.
Plea-New plea-Raising of-Claim for seniority-Grant of-LPAsfiled
raising specific plea regarding facts and law-Dismissed by High Court only
on the ground of limitation-Held, cannot be accepted that plea regarding
detennination of seniority is raised for the first time before the Supreme Court.
. Limitation Act, 1963 :
Delay in filing appeal-Condonation of-Sufficiency of cause shown764
)- ;:
-
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~
~4
STATE v. K.P. SINGH
765
·~
Held, power to condone delay has been conferred on the courts to enable them
A
to do substantial justice which cannot be defeated by technicalities-In the
instant case, dismissal of appeal likely to affect not only the parties but several
other persons-Thus, delay condoned.
Respondent 'B ', Sub-Inspector of Police was promoted as Inspector
B
of Police on officiating basis with a clear stipulation that he will not get
seniority in the rank of Inspector till duly selected. One 'R', junior to
respondent 'B' was promoted as Inspector in terms of Rule 660(C) of the
Bihar Police Manual Rules and further promoted as Dy. S.P. Subsequently,
respondent 'B' was promoted as Inspector after selection under Rule 649
of the Rules. He filed a writ petition before the High Court claiming c
seniority in the post of Inspector from the date of his officiating promotions, which was allowed. Thereafter, respondent ~B' also filed a writ
petition claiming promotion to the post of Dy. S.P. from the date 'R' was
promoted to that post, which was also allowed. Respondent 'K', SubInspector of Police filed a writ petition claiming promotion to the post of
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Inspector on the ground that his junior viz. respondent 'B' was promoted.
The said writ petition was also allowed by High Court. Aggrieved, appellants tiled Letters Patent Appeals along with application for condonation
of delay. Division Bench of High Court dismissed the said LPAs only on
the ground of limitation without deciding the other pleas raised. Hence the
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present appeals.
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Disposing of the appeals, the Court
HELD : 1.1. High Court was not justified in granting seniority and
promotion to respondent 'B' on the basis of his officiating promotion in the
post oflnspector of Police. (784-C-D]
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1.2. Where the initial appointment is only ad hoc and not according
to the rules and made as a stop gap arrangement, the officiation an such
post cannot be taken into account for considering the seniority. In the
instant case, respondent 'B' having been promoted on officiating basis
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with a clear stipulation that he will not get seniority in the rank of Inspector till finally selected could not have preferred a claim regarding his
>- 1->
seniority on the basis of promotion of 'R' though initially junior to him yet
substantively promoted in accordance with

## Text

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STATE OF BIHAR AND ORS. ETC.
v.
KAMESHWAR PRASAD SINGH AND ANR. ETC. ETC.
APRIL 27, 2000
[S. SAGHIR AHMAD AND RP. SETIIl, JJ.]
Service Law :
Seniority-Period of officiation-Reckoning of-Sub-Inspector of Police-Promoted to the post of Inspector of Police on officiating basis-Order
clearly stipulated that employee cannot claim seniority till duly selectedClaim for seniority and promotion-Allowed by High Court-Validity ofHeld, officiating post held purely on ad hoc basis and not as per rules cannot
be considered for seniority-Thus, High Court erred in granting seniority and
promotion-However, in the interest of justice promotions made not disturbedBihar Police Manual Rules-Rules 660(C) and 649.
Constitution of India, 1950: Article 14-Equality-Concept of-Seniority-Claim-High Court by granting seniority committing illegality or irregularity-Another employee claiming similar relief-Validity of-Held, equality
is a positive concept and cannot be enforced in a negative manner-Benefits
extended to a person in an illegal or irregular manner cannot be claimed by
others on the ground of equality.
Practice and Procedure :
Parties-Non-joinder of parties-Effect of-Seniority-Claim for-Persons likely to be affected by the relief claimed, not impleaded as parties-Held,
the petition should be nonnally dismissed unless there existed specific reasons
for such non-impleadment.
Plea-New plea-Raising of-Claim for seniority-Grant of-LPAsfiled
raising specific plea regarding facts and law-Dismissed by High Court only
on the ground of limitation-Held, cannot be accepted that plea regarding
detennination of seniority is raised for the first time before the Supreme Court.
. Limitation Act, 1963 :
Delay in filing appeal-Condonation of-Sufficiency of cause shown764
)- ;:
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STATE v. K.P. SINGH
765
·~
Held, power to condone delay has been conferred on the courts to enable them
A
to do substantial justice which cannot be defeated by technicalities-In the
instant case, dismissal of appeal likely to affect not only the parties but several
other persons-Thus, delay condoned.
Respondent 'B ', Sub-Inspector of Police was promoted as Inspector
B
of Police on officiating basis with a clear stipulation that he will not get
seniority in the rank of Inspector till duly selected. One 'R', junior to
respondent 'B' was promoted as Inspector in terms of Rule 660(C) of the
Bihar Police Manual Rules and further promoted as Dy. S.P. Subsequently,
respondent 'B' was promoted as Inspector after selection under Rule 649
of the Rules. He filed a writ petition before the High Court claiming c
seniority in the post of Inspector from the date of his officiating promotions, which was allowed. Thereafter, respondent ~B' also filed a writ
petition claiming promotion to the post of Dy. S.P. from the date 'R' was
promoted to that post, which was also allowed. Respondent 'K', SubInspector of Police filed a writ petition claiming promotion to the post of
D
Inspector on the ground that his junior viz. respondent 'B' was promoted.
The said writ petition was also allowed by High Court. Aggrieved, appellants tiled Letters Patent Appeals along with application for condonation
of delay. Division Bench of High Court dismissed the said LPAs only on
the ground of limitation without deciding the other pleas raised. Hence the
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present appeals.
E
Disposing of the appeals, the Court
HELD : 1.1. High Court was not justified in granting seniority and
promotion to respondent 'B' on the basis of his officiating promotion in the
post oflnspector of Police. (784-C-D]
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1.2. Where the initial appointment is only ad hoc and not according
to the rules and made as a stop gap arrangement, the officiation an such
post cannot be taken into account for considering the seniority. In the
instant case, respondent 'B' having been promoted on officiating basis
G
with a clear stipulation that he will not get seniority in the rank of Inspector till finally selected could not have preferred a claim regarding his
>- 1->
seniority on the basis of promotion of 'R' though initially junior to him yet
substantively promoted in accordance with Rule 660(C) in the year 1972
whereas respondent 'B' was promoted after selection under Rule 649 only
in the year 1978. Thus, High Court by granting promotion and seniority to
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SUPREME COURT REPORTS
[2000) 3 S.C.R.
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respondent 'B' totally ignored the basic principles governing the service
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rules and the mandate of law. (782-E; 784-B-C]
Direct Recruit Class II Engineering Officers Association and Ors. v.
State of Maharashtra & Ors., (1990] 2 SCR 900, followed.
State of West Bengal & Ors. v. Aghore Nath Dey & Ors. Etc., [1993] 2
SCR 919, relied on.
2. High Court totally lost sight of the fact that in his petitions filed
from time to time respondent 'B' had not impleaded any of his seniors as
party-respondents. In the absence of persons likely to be affected by the
relief prayed for, the uTit petitions should be normally dismissed unless
there existed specific reasons for such non impleadment. In the instant
case, neither any reason was assigned by the respondent nor the court felt
it necessary to deal with this aspect of the matter. Ignoring such a basic
principle of law has resulted in the supercession of several Inspectors and
Dy. SPs. Thus, the writ petition filed by respondent 'B' being totally
misconceived, devoid of any legal force and prayers made being in contravention of the rules applicable in the case deserved dismissal, which was
unfortunately not done with the result that the interests of many seniors
have been threatened, endangered and adversely affected. [784-E-G]
3. The concept of equality as envisaged under Article 14 of the
Constitution is a positive concept which cannot be enforced in a negative
manner. When any authority is shown to have committed any illegality or
irregularity in favour of any individual or group of individuals others
cannot claim the same illegality or irregularity on ground of denial thereof
to them. Similarly wrong judgment passed in favour of one individual does
not entitle others to claim similar benefits. Benefits extended to some
persons in an irregular or illegal manner cannot be claimed by a citizen on
the plea of equality as enshrined in Article 14 of the Constitution by way of
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wi:_it petition filed in the High Court. Thus, in view of the finding that the
judgment of the High Court in the case of respondent 'B' being contrary to
law was not sustainable and liable to be dismissed, the impugned judgment
in favour of respondent 'K' cannot be upheld. (786-B-D; 787-F]
H
Gursharan Singh & Ors. v. NDMC & Ors., (1996] 2 SCC 459;
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STATE v. K.P. SINGH
767
_.
Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain & Ors.,
A
[1997) 1 SCC 35 and State of Haryana & Ors. v. Ram Kumar Mann, [1997) 3
sec 321, relied on.
4. The question of law regarding determination of seniority is not
altogether a new point raised for the first time before this Court. It is true
that High Court had dismissed the LPAs only on the ground of limitation
without deciding the other pleas raised by the appellants. But when specific pleas regarding facts and law had been raised in the LPAs, it cannot
be accepted that such a plea had been raised by the appellant for the first
time in this Court. [789-G-H; 789-C]
5. Once the judgment is set aside, the consequences have to follow
and a person taking advantage or benefit of the wrong orders is to suffer
for his own faults which cannot be attributed to anybody else. However, in
appropriate cases this Court can mould the relief to safeguard the interests
of a person wherever required. For doing complete justice between the
parties, appropriate directions can be given to protect the interests of a
person who is found to have been conferred the benefits on the basis of
judicial pronouncements made in his favour. In the instance case, since the
appellant-State has been found to be careless and negligent in defending its
cases, the interests of respondent 'B' should be protected. Thus, despite
setting aside the judgments of the High Court, promotions of respondent
'B' made from time to time is not disturbed. However, judgments passed in
his favour cannot be permitted to be made a basis for conferment of
similar rights upon other persons. [789-E-H]
6. Power to condone the delay in approaching the court has been
conferred upon the courts to enable them to do substantial justice to
parties by disposing of matters on merits. In the instant case, sufficient
cause has been made out by the petitioners to condone the delay in filing
the petitions. Dismissing the appeals on technical grounds of limitation
would not, in any way, advance the interests of justice but admittedly,
result in failure of justice as the impugned judgments are likely to affect
not only the parties in the instant case, but hundreds of other persons who
are stated to be senior than the respondents. The technicalities of law
cannot prevent substantial justice and undoing the illegalities perpetuated
on the basis of the impugned judgments.
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768
SUPREME COURT REPORTS
[2000) 3 S.C.R.
Thus, delay in filing the petition is condoned.
[773-E; 776-G-H; 777-A-C]
Collector, Land Acquisition, Anantnag & Am: v Mst. Katiji & Ors.,
[1987) 2 SCR 387; State of Haryana v. Chandra Mani & Ors., [1996) 3 SCC
132; N. Balakrishnan v. M. Krishnamurlhy, [1998) 7 SCC 123, relied on.
New India Insurance Co. Ltd. v. Shanti Misra, [1975) 2 SCC 840; Brij
Inder Singh v. Kanshi Ram, AIR (1917) PC 156; Slzakuntala Devi Jain v.
Kuntal Kumm; [1969) 1SCR1006; Concord of India Insurance Co. Ltd. v.
Nirmala Dev~ [1979) 4 SCC 365; Lala Mata Din v. A. Naryanan, [1969] 2
SCC 770; State of Kerala v. E.K Kuriyipe, [1991] Supp. SCC 72; Milavi Devi
v. Dina Nath, [1982] 3 SCC; O.P. Kathpalia v. Laklzmir Singh, [1984] 4 SCC
66; Prablza v. Ram Parkash Kalra, [1987] Supp. SCC 339; G. Ramegowda.,
Major v. Spl. Land Acquisition Officer, [1988] 2 SCC 142; Scheduled Caste
Coop. Land Owning Society Ltd. v. Union of India, [1991] 1SCC174; Binod
BiharSingh v. Union of India, [1993] 1SCC572; Shakambari & Co. v. Union
of India, [1993] Supp. 1SCC487; Ram Kishan v. U.P. SRTC, [1994] Supp. 2
SCC 507; Warlu v. Gangotribai, [1995] Supp. 1SCC37; Special Tehsildar,
land Acquisition Kera/a v •• K. V. Ayisumma, (1996] 10 SCC 634 and Nqnd
Kishore v. State of Punjab, [1995] 6 SCC 614, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3005 of 2000.
From the Judgment and Order dated 13.2.98 of the Patna High Court
in L.P.A. No. 97 of 1998.
WITH
Civil Appeal no. 3006 of 2000.
From the Judgment and Order dated 22.3.96 of the Patna High Court
in L.P.A. No. 1018 of 1995.
WITH
Civil Appeal No. 3007 of 2000.
From the Judgment and Order dated 22.3.96 of the Patna High Court
H
in L.P.A. No. 1018 of 1995.
'+
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STATE v. K.P. SINGH [SETHI, J.]
769
P.P. Rao, P.S . .Mishra, Anil Kumar Jha, Ashok Kumar Tiwari, Vikas
A
Singh, Yunus Malik, Reetesh Singh, Ms. Richa Kachhwaha, Prashant
Chaudhary, Chandra Shekhar, Chandra Bhushan Prasad, Upendra Mishra,
Vishnu Sharma, Pavan Kumar and Akhilesh Kumar Pandey for the appearing
parties.
The Judgment of the Court was delivered by
SETHI, J. The respondents Brij Bihari Prasad Singh and Kameshwar
Prasad Singh and one Ramjas Singh were directly recruited as Sub-Inspectors
of Police on 2.1.1966. Brij Bihari Prasad Singh was promoted as Inspector
of Police on officiating basis on 16.7.1971 with a clear stipulation that he
will not get seniority in the rank of Inspector till selected by the IG's Board.
Consequently he actually joined on 22.7.1971. Ramjas Singh was promoted
as Inspector on 8.7.1972 in terms of Rule 616(c) of the Bihar Police Manual
Rules (hereinafter referred to as "the Rules") as he had been awarded
gallantry award. On 2.7.1978 Brij Bihari Prasad Singh was promoted as
Inspector after selection under Rule 649 and was confirmed as such on
1.4.1982. The aforesaid respondent filed Writ petition No.6873 of 1990 in
the High Court of Patna praying for direction to the respondents therein to
consider his case for promotion to the post of Dy.SP treating his date of
promotion to the post of Inspector of Police as 27.7.1971, the date when he
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joined as Inspector of Police consequent upon his initial promotion on
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officiating basis. The aforesaid writ petition was disposed of by the High
Court on 30th November, 1990 directing Brij Bihari Prasad Singh to file
representation and the petitioner-State to dispose of the same within three
months. On 14.5 .1991 the Director General of Police directed seniority of the
aforesaid respondent in the rank of Inspector to be reckoned with effect from
p
27.7.1971. However, on 13.4.1993 the DGPmodified the aforesaid order and
directed confirmation of Brij Bihari Prasad Singh in the rank of Inspector with
effect from 2.7.1978 when he was substantively promoted under Rule 649
of the Rules and placed him at SI.No.86 Ka in the seniority list of Inspectors.
Feeling aggrieved, the aforesaid respondent filed Writ Petition No.4108 of
1991 in the High Court which was allowed on 8.4.1994 with a direction of
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reckoning his seniority as Inspector with effect from 27.7.1971 and grant of
all consequential benefits to him. As the directions were not complied with,
contempt petition being MGC No.1360 of 1994. was filed in the High Court
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and according to the petitioners the order of the High Court passed in Writ
Petition No.4108/91 was implemented allegedly under the threat of contempt.
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770
SUPREME COURT REPORTS
[2000] 3 S.C.R. .
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Ramjas Singh who was promoted as Inspector out of tum on the basis
....
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of gallantry awaJ:d in terms of Rule 616( c) of the Rules had been promoted
as Dy.SP with effect from 25th October, 1975. Alleging that the aforesaid
Ramjas Singh was junior to him, the respondent Brij Bihari Prasad Singh filed
writ petition No.697 of 1995 claiming promotion with effect from the date
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when Ramjas Singh was promoted as Dy.SP. The aforesaid writ petition was
allowed on 26th July, 1995 directing promotion of Brij Bihari Prasad Singh
as Dy.SP with effect from 25th October, 1975; The Letters Patent Appeal filed
against the aforesaid judgment was dismissed. by a Division Bench of the
High Court on 22nd March, 1996 vide the judgment impugned in the SLP
12013/98.
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There being delay of 679 days in filing the SLP, the appellants have
also filed Application being IA No.1/98 seeking condonation of delay in
filing the SLP. It is submitted in the application that the order of the Division
Bench of the High Court could not be challenged earlier allegedly due to the
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fear of contempt and various coen:ive orders passed by the High Court against
the State and its officials. It is contended that as consequent upon the
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judgment of the High Court in Brij Bihari Prasad Singh's case, a number of
writ petitio~ have been filed in the High Court of Patna for the grant of
similar benefits, the State had no option left except to approach this Court.
It is contended that the judgment impugned has been passed in violation of
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the provisions of law and the rules applicable and it has become a havoc in
the Department and Government is facing great trouble in compliance of such
type of directions for conferment of uncalled for benefits. It is submitted that
if the impugned judgment is not rectified or set aside, the interests of more
than 250 officers would be adversely affected. By promoting Brij Bihari
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Prasad Singh a number of senior officers are stated to have already superseded for no fault of theirs. If promotions are given in terms of the directions
of the High Court, the same is likely to upset the entire cadre of Dy.SP of
Police as well as Inspectors of Police in the State of Bihar. If not stopped,
the consequence would be uncalled for litigation with heavy financial burden
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upon the State.
Kameshwar Prasad Singh respondent in the SLP 10653 of 1998 filed
a writ petition in the High Court praying for issuance of directions to the
appellants to assign him seniority in the rank of Inspector of Police over Brij
Bihari Prasad Singh and thereafter provide him with all consequential henH
efits. He claimed to have been appointed along with Brij Bihari Prasad Singh
....
•
STATE v. K.P. SINGH [SETIII, J.]
771
as Sub Inspector of Police in January, 1966. His name was shown above the
nameeof Brij Bihari Prasad Singh in the cadre of Sub lnspectoi:s. Both of them
passed the PTC training together. He claimed that his case for substantive .
appointment of Sub Inspector was placed before the Director· General of
Police along with the cases of Brij Bihari Prasad Singh and others. The
Selection Board which held its meetings on 17th and 18th August. 1978 is
stated to have declared both the respondents as fit for officiating prom?tion
on the higher post of Inspector of Police. On the basis of the recommendations made by the Board a Gazette Notification is stated to have been issued
on 6th October, 1978 by which both the aforesaid respondents were promoted
on officiating basis to the higher post of Inspector of Police. However, despite
notification Kameshwar Prasad Singh could not join the post of Inspector till
3rd March, 1981. Both the aforesaid respondents were stated to have been,
confirmed with effect from 1.4.1982. In the seniority list published on 18th
May, 1988, the said Kameshwar Prasad Singh was shown senior to Brij Bihari
Prasad Singh by being placed at SL No.224 and Brij Bihari Prasad Singh at
Sl.No.225. He then referred to thf filing of the writ petition by respondent
Brij Bihari Prasad Singh to which he was not made a party. He claimed that
after the promotion of Brij Bihari Prasad Singh he could not be denied· the
relief claimed. Allowing the writ petition on 3rd July, 1997, the learned Single
Judge of the High Court directed the petitioners herein to treat the said
respondent as senior to Brij Bihari Prasad Singh as Inspector of Police and
provide him with all consequential benefits including promotion to the next
higher post, if he of1!erwise was found fit. It was, however, made clear that
the judgment of the Court would not affect the interest of Brij Bihari Prasad
Singh in the matter of promoti_on to the post of Dy.SP and SP which was
noticed to have been already granted to him. LPA filed against the judgment
of the learned Single Judge was dismissed on the ground of unexplained delay
of 174 days, vide the judgment impugned in this petition.
Indra Nand Mishra and others who were intervenors in the High Court
filed ari application with the submission that as they were likely to be
adversely affected by the impugned judgment ·passed by the learned Single
Judge and confirmed by the appellate Bench, their interests be protected and
the court should ensure by giving the benefit to the writ petitioners that the
interest of the intervenors would not be adversely affected. Their application
was dismissed holding:
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"However, those persons are neither party in the present Letters Patent · H
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SUPREME COURT REPORTS
[2000) 3 S.C.R.
Appeal nor they were party in the writ applications referred to above.
Even if they have bonafide grievance, the same cannot be appreciated
and considered in this Letters Patent Appeal."
They have also sought the condonation of delay mainly on the ground
of not being aware of the judgment passed by the High Court which
ultimately and eventually adversely affected their interests.
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We have heard the arguments of the learned counsel appearing for the
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parties and have perused the records. Appearing for the petitioners Mr.P.P.
Rao, Senior Advocate has submitted that under the circumstances of the case
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and for the reasons detailed in the applications sufficient grounds have been
made out for condoning the delay in filing the petitions. He has further
submitted that the judgments impugned are contrary to law and totally in
violation of the rules applicable in the case and if not set right, are likely to
adversely affect a number of other officials who are admittedly senior than
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the respondents herein. According to the learned counsel 14 similar writ
. petitions and three contempt petitions are pending before the High Court
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wherein all the petitioners have claimed similar relief as was given to Brij
Bihari Prasad Singh, on the ground of admittedly being senior to him. Besides
15 representations for similar reliefs are stated to be pending before the
Government. Brij Bihari Prasad Singh is stated to have superseded 168
Inspectors by getting an order to give him seniority with effect from 27.7.1971.
In the cadre of Dy. SP Brij Bihari Prasad Singh is stated to have superseded
407 officers by virtue of the judgment of the High Court in the second round
claiming promotion as Dy. SP with effect from 25th October, 1975, when
Rarnjas Singh was promoted. It is contended that the High Court has
committed an error of law by directing the conferment of benefits upon the
respondent on the alleged ground of equality. No court can grant relief to a
citizen by applying the concept of negative equality. Only because the
Government had committed a mistake by giving Brij Bihari Prasad Singh
seniority with effect from 27.7.1971 as Inspector and under the threat of
contempt, promotion with effect from 25th October, 1975, the others who
claimed to be similarly situated cannot force the Government to commit the
same mistake and upon denial approach the High Court for issuance of
appropriate directions.
Mr. P.S. Misra, Learned Senior Advocate appearing for the respondents
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has, however, submitted that as the State slept over its rights and felicitated
STATE v. K.P. SINGH [SETHL J.]
773
the judgment in Brij Bihari Prasad Singh's case become final, they are now
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not entitled to seek the condonation of unexplained delay. It is further
submitted that Brij Bihari Prasad Singh and Ramjas Singh have already been
conferred the benefits of the judgment and consequently promoted. By setting
aside the judgments at this belated stage would not only adversely affect their
interests but subject the aforesaid respondents to humiliation of demotion
B
besides suffering of the monetary loss. The learned senior counsel has even
denied the c;laim of Mr.Rao regarding supersession of 168 Inspectors and 407
Dy.SPs. It is contended that in view of the settled law the present petitions
are liable to be dismissed.
Mr. VIkas Singh and other advocates who appeared for the intervenors
·submitted that if the impugned judgments are not set aside, their clients along
with others are likely to suffer for no fault of theirs. It is contended that in
the absence of parties likely to be affected consequent upon the prayers made
were necessary parties and in view of the fact that they have not been
impleaded as party-respondents, the impugned judgments cannot adversely
affect the interests of any senior officer.
Power to condone the delay in approaching the court has been conferred upon the courts to enable them to do substadtial justice to parties by
disposing of matters on merits. This Court in Collector, lAnd Acquisition,
Anantnag & Anr: v. Mst. Katiji & Ors., [1987] 2 SCR 387 held that the
expression 'sufficient cause' employed by the legislature in the Limitation Act
is adequately elastic to enable the courts to apply the law in a meaningful
manner which subserves the ends of justice - that being the life purpose for
the existence of the institution of courts. It was further observed that a liberal
approach is adopted on principle as it is realised that:
"l. Ordinarily a litigant does not stand to benefit by lodging an appeal
late.
2. Refusing to condone delay can result in a meritorious matter being
thrown out at the very threshold and cause of justice being defeated.
As against this when delay is condoned the highest that can happen
is that a cause would be decided on merits after hearing the parties.
3. 'Every day's delay must be explained' does not mean that a
pedantic approach should be made. Why not every hour's delay, every
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774
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SUPREME COURT REPORTS
[2000] 3 S.C.R.
second' s delay? The doctrine must be applied in a rational common
sense pqlgmatic manner.
4. When substantial justice and technical considerations are pitted
against each other, cause of substantial justice deserves to be preferred
for the.other side cannot claim to have vested right in injustice being
done because of a non- deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or
on account of culpable negligence, or on account of mala tides. A
litigant does not stand to-benefit by resorting to delay. In fact he runs
a serious risk.
6. It must be grasped that judiciary is respected not on accooot of its
. power to legalize injustice on technical grpunds but because it is
capable of removing injustice and is expected to do so."
I)
After referring to the various judgments reported in New India Insurance ·co. Ltd. v. Shanti Misra, [1975] 2 SCC 840, Brij Inder Singh v. Kanshi
Ram, AIR (1917) PC 156, Shakuntala Devi Jain v. Kuntal Kumari, [1969]
1 SCR 1006, Concord of India Insurance Co. Ltd. v. Nirmala Devi [1979]
4 sec 365, Lala Mata Din v. A. Narayanan [1969] 2 SCC 770, State of
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Kerala v. E.K. Kuriyipe, [1981] Supp SCC 72, Milavi Devi v. Dina Nath,
, [1982] 3 sec 366 O.P. Kathpalia v. Lakhmir Singh, [1984] 4 SCC 66,
Collector, Land Acquisition v. Katiji [1987] 2 SCC 107, Pi-ahha v. Ram
Parkash Kalra, [1987] Supp. SCC 339, G. Ramegowda, Major v. Spl. Land
Acquisition Officer, [1988] 2 SCC 142, Scheduled Caste Coop. Land Owning
Society Ltd. v. Union of India, [1991] 1SCC174, BinodBiharSingh v. Union
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of India [1993] 1 SCC 572, Shakambari & Co. v. Union of India, [1993] Supp
1 SCC 487, Ram Kishan v. U.P. SRTC, [1994] Supp 2 SCC 507 and Warlu
v. Gangotribai [1995] Supp 1 SCC 37; this Court in State of Haryana v.
Chandra Mani ~ Ors. [1996] 3 sec 132 held:
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"It is notorious .and common knowledge that delay in more than
60 per cent of the cases filed in this Cpurt - be it by private party or
the State - are barred by limitation . and this Court generally
adopts liberal approach in condonation of delay finding somewhat
sufficient·cause to decide the appeal on merits. It is equally common
knowledge that litigants including the State are accorded the
same treatment and the law is ad.ministered in an even-banded
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STATE v. K.P. SINGH [SETHI, J.]
775
manner. When the State is an applicant, praying for condonation of
delay, it is common knowledge that on account of i.Jnpersonal
machinery and the inherited bm;aucratic methodology imbued with
the note-making, file pushing, and passing-on-the buck ethos, delay
on the part of the State is less difficult to understand though more
difficult to approve, but the State represents collective cause of the
community. It is axiomatic that decisions are taken by officers/
agencies proverbially at slow pace and encumbered process of
pushing the files from table to table and keeping it on table for
considerable time causing delay - intentional or otherwise - is a
routine. Considerable delay of procedural red-tape in the process of
their making decision is a common feature. Therefore, certain amount
of altitude is not impermissible. If the appeals brought by the State
are lost for such default no person is individually affected but what
in the ultimate analysis suffers, is public interest. The expression
'sufficient cause' should, therefore, be considered with pragmatism
in justice-oriented process approach rather than the technical detention of sufficient case for explaining every day's delay. The factors
which are peculiar to and characteristic of the functioning of pragmatic approach in justice oriented process. The court should decide
the matters on merits unless the case is hopelessly without merit.
No separate standards to determine the cause laid by the State vis-avis private litigant could be laid to prove strict standards of sufficient
cause. The Government at appropriate level should constitute
legal cells to examine the cases whether any legal principles are
involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision to give
appropriate permission for settlement. In the event of decision to
file the appeal needed prompt action should be pursued by the officer
responsible to file the appeal and he should be made personally
responsible for lapses, if any. Equally, the State cannot be put on the
same footing as an individual. The individual would always be quick
in taking the decision whether he would pursue the remedy by way
of an appeal or application since he is a person legally injured while
State is an impersonal machinery working through its officers or
servants."
To the same effect is the judgment of this Court in Special Tehsildar, Land
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Acquisition, Kerala v. KV. Ayisumma, [1996] 10 SCC 634]. ...
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SUPREME COURT REPORTS
[2000] 3 S.C.R.
In Nand Kishore v. State of Punjab, [1995] 6 SCC 614 this Court und7r
the peculiar: circumstances of the case condoned the delay in approaching this
Court of about 31 years. In N. Balakrishnan v. M. Krishnamurthy [1998] 7
SCC 123 this Court held that the purpose of Limitation Act was not to destroy
the rights. It is founded on public policy fixing a life span for the legal remedy
for the general welfare. The primary function of a Court is to adjudic.ate
disputes between the parties and to advance substantial justice. The time limit
fixed for approaching the court in different situations is not because on the
expiry of such time a bad cause would transform into a good cause. The
object of providing legal remedy is to repair the damage caused by reason
of legal injury. If the explanation given does not smack malafides or is not
shown to ha~e been put forth as a part of dilatory strategy, the court must
show utmost consideration to the suitor. In this context it was observed:
"It is axiomatic that condonation of delay is a matter of discretion of
the court. Section 5 of the Limitation Act does not say that such
discretion can be exercised only if the delay is within a certain limit
Length of delay is no matter, acceptability of the explanation is the
only criterion. Sometimes delay of the shortest range may be
uncondonable due to a want of acceptable explanation whereas in
certain other cases, delay of a very long range can be condoned as
the explanation thereof is satisfactory. Once the court accepts the
explanation as sufficient, it is the result of positive exercise of
discretion and normally the superior court should not disturb such
finding, much less in revisional jurisdiction, unless the exercise of
discretion was on wholly untenable grounds or arbitrary or perverse.
But it is a different matter when the first court refuses to condone the
delay. In such cases, the superior court would be free to consider the
cause shown for the delay afresh and it is open to such superior court
to come to its own f'mding even untrammelled by the conclusion of
the lower court."
Looking into the facts and circumstances of the case, as noticed earlier
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and with the object of doing substantial justice to all the parties concerned,
we are of the opinion that sufficient cause has been made out by the
petitioners which has persuaded us to condone the delay in filing the petitions.
Dismissing the appeals on technical grounds of limitation would not, in any
way, advance the interests of justice but admittedly, result in failure of justice
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as the impugned judgments are likely to affect not only the parties before us,
STATE v. K.P. SINGH [SETHI, J.]
777
but hundreds of other persons who are stated to be senior than the respondents. The technicalities of law cannot prevent us from doing substantial justice
and undoing the illegalities perpetuated on the basis of the impugned judgments. However, while deciding the petitions, the reliefs in the case can
appropriately be moulded which may not amount to unsettle the settled rights
of the parties on the basis of judicial pronouncements made by the courts
regarding which the State is shown to have been careless and negligent. It
is paramount consideration of this Court to safeguard the interests of all the
litigants and persons serving the Police Department of the State of Bihar by
ensuring the security of the tenure and non disturbance of accrual of rights
upon them under the prevalent law and the rules made in that behalf.
Accordingly delay in filing the petitions is condoned.
Leave granted.
The facts as noticed earlier are not seriously di$puted. The respondent
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Brij Bihari Prasad Singh had filed Writ Petition No.1556/90 praying therein
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that he be given the same benefit as was given to the writ petitioners in Writ
Petition No.563 of 1985. He contended that similar benefits had been
conferred upon many police officers and he had allegedly been discriminated.
The writ petition was dismissed as withdrilwn on 31st July, 1990 with the
observation that "however, this shall not prejudice the petitioners in pursuing
a remedy, if any, available to him or pursuing his representation which we
are informed is pending with the State". As his representation dated 4.6.1988
had not been considered, Brij Bihari Prasad Singh filed writ petition No.6873
of 1990 in which he prayed:
"Under the above facts and circumstances it is, therefore, prayed that
your lordships be graciously pleased to admit this application issue
rule NISI and after both parties and there show causes if any allow
this application by issuing a writ of directing the respondents to give
promotion and other consequential benefits to the petitioner from the
post of Inspector of Police to the post of Deputy Superintendent of
Police from the date the petitioner is found in legal entitle considering
the case for promotion to the post of Deputy Superintendent of Police
by treating as conflIIIled Inspector of Police with effect from 27. 7. 71
i.e. the date of continuous officiation in the rank of Inspector of Police
in the event of judgments and order passed by this Hon'ble Court
relying on judgment of the Supreme Court contained in Annexure 1,
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778
SUPREME COURT REPORTS
[2000] 3 S.C.R.
2 and 3 of this writ application or pass such other order or orders as
to your lordships may be pleased fit and proper."
As the Director General modified his order dated 14th May, 1991 vide
bis subsequent order dated 13.4.1993, Brij Bihari Prasad Singh filed Writ
Petition No.4108 of 1994 wherein he alleged that his seniority had not been
fixed correctly in the rank of Inspectors. A learned Single Judge of the High
Court vide his interim order directed appellants herein to issue a regular order
of promotion and if so advised to determine the seniority of the writ
petitioners in the cadre of Dy.SP of Police. It examined the legality of the
order of the Director General of Police dated 13.4.1993 and held:
"The petitioner's seniority once determined in the rank of Inspector
with effect from 27.7.1971 cannot be legally altered without notice
nor is any justification for the alteration pointed out by the learned
State counsel.
Therefore, his seniority in the rank of Inspector has to be
reckoned with effect from 27.7.1971. The date of confirmation, in
these circumstances, would, therefore, not to relevant for determining
the seniority of the petitioner in the rank1 Inspector, and if necessary,
his confirmation on the post of Inspector would have to be made
afresh treating the petitioner to have been placed on probation in the
rank of Inspector from 27. 7 .1971. Further consequential revisions, if
necessa..-y, shall also be .made in the gradation list of the Deputy
Superintendent of Police where the petitioner has been placed at
Serial Nwnber 399."
The impugned order was quashed and a direction issued to the appellant
to reckon the seniority of the writ petitioners in the rank of Inspectors with
effect from 27.7.1971 with all consequential benefits as a result of revision
of his seniority in the rank of Inspector as well as that of Dy.SP of Police.
Admittedly, this order was not appealed against and ultimately implemented
by the authorities of the appellant- State. By order dated 1st October, 1994
the respondent Brij Bihari Prasad Singh was held entitled for promotion to
the post of Dy.SP with effect from 11th July, 1981 and not with effect from
25th October, 1975. He again filed writ petition No.697 of 1995 submitting
therein that having been confirmed to the lower post of Inspector of Police
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from 1st March, 1975 bis seniority should be counted from the date of
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STATE v. K.P. SINGH (SETIIl, J.)
779
confirmation i.e. 25th October, 1975. It was noticed that Ramjas Singh who
was allegedly junior to him had been promoted to the post of Inspector with
effect from 8th July, 1972. Brij Bihari Prasad Singh claimed to be senior to
said Ramjas Singh on the ground of having been promoted as Inspector on
officiating basis on 27.7.1971. The learned Single Judge held:
"Having heard the parties, my considered view is that the impugned
order dated 1st October, 1994 is completely illegal. The same is
against the order and direction of this Court ?t.8th April, 1994, passed
in CWJC No.4108/91, wherein this court categorically held and
directed the respondents to provide the petitioner with the seniority
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in the rank of Inspector of Police with effect from 27th July, 1971.
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By the impugned order, as~ntained in annexure-12, the respondents
cannot superseded and/or
er the aforesaid fmding of this Court, in
fact, Annexure-12 is contem tious.
Apart from the aforesaid fact, numerous decisions, including the
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decision given by the Supreme Court, as reported in AIR 1977 SC
2051, it has been held that the seniority of a person cannot
be dependent on confirmation, if confinnation itself is fortuitous in
nature. In the present case I have taken into note that confirmation
of the petitioner and Sh.Ramjas Singh to the post of Inspector
of Police itself was fortuitous in nature, the same having not been
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made on the assessment of merit. Such being the position,
the impugned order dated 1st October, 1994 cannot be sustained in
the eye of law."
The order dated 1st October, 1994 in so far as it related to the writ
petitioner was set aside with a direction to the authorities of the appellantState to consider the case of the writ petitioner for promotion to the post of
Dy.SP with effect from 25th October, 1975 i.e. the date when his alleged
junior Shri Ramjas Singh was promoted. It was further directed that in case
the writ petitioner was found fit for promotion with effect from 25th October,
1975 he would shift back the date of promotion to the post of Dy.SP from
11th July, 1971 to 25th October, 1971. The appellants were further directed
to provide all consequential benefits to the petitioners.
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Rule 649 deals with the promotion of Sub Inspectors to Inspectors and
Reserve Sub-Inspectors to Reserve Inspectors and provides:
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SUPREME COURT REPORTS
[2000] 3 S.C.R
"649. Inspectors and Reserve Inspectors_ (a) The promotion of SubInspectors to Inspectors, and Reserve, Sub-Inspectors to Reserve
Inspectors will be made by the Inspector-General on the advice of the
Inspector General's Selection Board [Appendix 72(1)] (For period of
probation, See Rule 668).
(b) In July the Deputy Inspector-General will call for nominations for
promotion to reach him on the date fixed. The form of nomination
and the list ~f enclosures are given in P.M. Form No.