UNION OF INDIA AND OTHERS versus CHAMAN RANA

[2018] 3 S.C.R.

UNION OF INDIA AND OTHERS

CHAMAN RANA

(Civil Appeal No. 2763 of 2018)

MARCH 12, 2018

[ARUN MISHRA AND NAVIN SINHA, JJ.]

Service law: Promotion – Delayed claim for retrospectiveconsideration for promotion from the date of supersession i.e. fromthe date their junior had been promoted – Repeated representationsC– Delay in approaching court – Held: In service matters, especiallywith regard to promotion, there is always an urgency – The aggrievedmust approach the Court at the earliest opportunity, or within areasonable time thereafter as third party rights accrue in themeantime to those who are subsequently promoted – Mere repeatedDfiling of representations could not be sufficient explanation for delayin approaching the Court for grant of relief – Any direction toconsider retrospective promotion of the respondents at belatedpassage of time of over 17 to 20 years, would cause seriousadministrative chaos quite apart from the financial implications forthe government – Claim not maintainable – Delay/laches.

Allowing the appeals, the Court

HELD: 1. The cause of action first arose to the respondentson the date of initial supersession and again on the date whenrejection of their representation was communicated to them, orFwithin reasonable time thereafter. The aggrieved must approachthe Court at the earliest opportunity, or within reasonable timethereafter as third party rights accrue in the meantime to thosewho are subsequently promoted. Such persons continue to workon the promotional post, ensconced in their belief of the protectionavailable to them in service with regard to seniority. Any belatedGinterference with the same is bound to have adverse effect onthose already promoted affecting their morale in service also.Additionally, any directions at belated stage to consider othersfor promotion with retrospective effect, after considerable timeis bound to have serious administrative implications apart from

the financial burden on the government that would follow by suchorders of promotion. [Para 9] [644-F-G; 645-A]

P.S. Sadasivaswamy v. The State of Tamil Nadu,

(1975) 1 SCC 152 : [1975] 2 SCR 356 – relied on.

2. Mere repeated filing of representations could not besufficient explanation for delay in approaching the Court for grantof relief. In the facts and circumstances of the instant case, anydirection to consider retrospective promotion of the respondentsat such belated passage of time of over 17 to 20 years, wouldvirtually bring tsunami in the service resulting in administrativechaos quite apart from the financial implications for thegovernment. [Paras 11, 17] [645-G; 647-H; 648-A]

Union of India v. M.K. Sarkar (2010) 2 SCC 59 :[2009] 16 SCR 249 ; Union of India and Anotherv. Major Bahadur Singh (2006) (1) SCC 368 :[2005] 5 Suppl. SCR 385 ; State of Uttaranchal v.Shiv Charan Singh Bhandari (2013) 12 SCC 179 :[2013] 9 SCR 609 ; C. Jacob v. Director of Geologyand Mining (2008) 10 SCC 115 : [2008] 14 SCR 634– relied on.

Gandhinagar Motor Transport Society v. State ofBombay AIR 1954 Bombay 202 – approved.

Sukhdev Singh v. Union of India & Ors. (2013) 9 SCC566 : [2013] 5 SCR 1004 ; Dev Dutt v. Union of India& Ors., (2008) 8 SCC 725 : [2008] 8 SCR 174 –distinguished.

[2018] 3 S.C.R.

ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 2763of 2018.

From the Judgment and Order dated 05.05.2017 of the High Courtof Punjab and Haryana at Chandigarh in CWP No.20322 of 2016

WITH

Civil Appeal No.2764 of 2018.

Sanjai Kumar Pathak, Girish Chaudhary (for B.V. Balaram Das),Advs. for the Appellants.

Rajeev Sharma, Deepak Goel, Advs. for the Respondent.CThe Judgment of the Court was delivered by

NAVIN SINHA, J. 1. Leave granted.

2. These two appeals arise from common order dated 05.05.2017,directing retrospective consideration for promotion of the respondentsDto the post of Second-in-Command and Commandant respectively, inthe Border Security Force (BSF), from the date that their juniors hadbeen promoted, along with all consequential benefits.

3. The respondents in the two writ petitions were superseded inthe years 1996 and 2000, respectively. Both of them were subsequentlyEpromoted on 28.11.1997 and 16.06.2003 as Second-in-Command andCommandant respectively. Subsequently, both of them submitted severalrepresentations for promotion from the date of supersession. Ordersrejecting the representations, along with reasons, were duly communicatedto them more than once. After the pronouncement in Sukhdev Singhvs. Union of India & ors., (2013) 9 SCC 566 affirming Dev Dutt vs.FUnion of India & ors., (2008) 8 SCC 725, separate writ petitions werefiled by them on 25.09.2016. The common plea taken was that the entry‘good’ in their annual confidential reports (ACRs) for the relevant yearswas an adverse remark in view of the benchmark of ‘very good’. Sincethe adverse entry had not been communicated to them, it could not beGtaken into consideration, requiring reconsideration for promotion fromthe date of supersession.

4. Learned counsel for the appellants submitted that the claimsof the respondents were highly belated and stale. The writ petitionsought to have been dismissed on the ground of delay and laches. Specific

objection had been taken in the counter affidavit, including the cascadingeffect that it would have had upon those promoted earlier to therespondents, and which would lead to administrative chaos. Mere filingof representations or subsequent judgement, could not be sufficientjustification to entertain such belated claims, dehors the facts of case.The High Court ought not to have given directions to consider theircandidature with retrospective effect.

5. Learned counsel for the respondents submitted that enunciationof law by this Court will always have to be given retrospective effect,unless it is made prospective specifically. The grading ‘good’ in the factsof the case was adverse as the benchmark for promotion was ‘verygood’. In view of the law laid down in Dev Dutt (supra) as affirmed inSukhdev Singh (supra), it was mandatory for the appellants to havecommunicated such adverse remarks to the respondents. In absence ofsuch communication, these remarks could not have been considered todeny promotions. The respondents were genuinely and bonafide pursuingtheir grievances before the authorities themselves, hoping that they wouldsee reason, and only when they realised that relief would not beforthcoming otherwise, they approached the High Court ultimately.

6. We have considered the submissions on behalf of the parties.The only question for consideration is the applicability of the law asdeclared in Dev Dutt (supra) and affirmed in Sukhdev Singh (supra)to the respondents in the facts and circumstances of the present case.

7. The benchmark for promotion to the posts in question underthe BSF (Seniority, Promotion and Superannuation of Officers) Rules of1978, as prescribed in paramilitary Promotion DO letter dated 25.11.1988was modified on 08.05.1990 from ‘Good’ to ‘Very Good’. The respondentChaman Rana, Deputy Commandant was considered for promotion tothe rank of Second-in-Command at the departmental promotion committee(DPC) meeting held on 13.09.1996 but could not make the grade in viewof the criteria prescribed in DO letter dated 08.05.1990. The respondentrepresented on 20.02.1997 against his supersession. An order of rejectionwith reasons was communicated to him on 25.03.1997. The cause ofaction had, therefore, accrued to seek relief before court of law.Nonetheless repeat representation was made on 31.07.1997, and areasoned rejection was again communicated on 07.05.1998. In themeantime, the respondent was empanelled to be considered for promotion

Ato the rank of Second-in-Command by the DPC held in the year 1997,and he was promoted as such on 28.11.1997. cause of action againaccrued to the respondent for approaching the Court for relief but heagain represented on 30.06.1998, followed by further representations on14.09.1998, 22.08.2000, 22.08.2006. fresh reasoned order of rejectionwas again communicated on 16.05.2007. Repeat representationsBfollowed on 28.08.2012, 07.11.2015 and 20.11.2015 after which the writpetition came to be instituted.

8. Likewise, the respondent Gulshan Kumar Sharma wasconsidered for promotion as Commandant in the years 2000-2001 and2001-2002 by the DPC but was superseded as he failed to secure theCbenchmark. He represented on 25.10.2001 and was informed on09.01.2002 that he had failed to secure the benchmark. The cause ofaction to approach the Court for grant of relief had accrued to therespondent but he again represented on 18.03.2002. An order of rejectionalong with reasons was again communicated to him on 01.09.2004. AfterDhe was promoted as Commandant on 16.06.2003, instead of approachingthe Court, he again represented on 04.05.2005, followed by anotherrepresentation on 08.01.2007. reasoned order of rejection was againcommunicated to him on 17.04.2008. This was followed by furtherrepresentation on 11.08.2009 which was again rejected on 02.09.2009allegedly communicated on 01.01.2016. further representation datedE03.08.2015 was also rejected on 27.11.2015. The writ petition then cameto be instituted.

9. Manifestly, the cause of action first arose to the respondentson the date of initial supersession and again on the date when rejectionof their representation was communicated to them, or within reasonableFtime thereafter. Even if the plea based on Dev Dutt (supra) beconsidered, the cause of action based thereon accrued on 12.05.2008.There has to be difference between cause of action and what isperceived as materials in support of the cause of action. In servicematters, especially with regard to promotion, there is always an urgency.GThe aggrieved must approach the Court at the earliest opportunity, orwithin reasonable time thereafter as third party rights accrue in themeantime to those who are subsequently promoted. Such personscontinue to work on the promotional post, ensconced in their belief ofthe protection available to them in service with regard to seniority. Any

belated interference with the same is bound to have adverse effect onthose already promoted affecting their morale in service also. Additionally,any directions at belated stage to consider others for promotion withretrospective effect, after considerable time is bound to have seriousadministrative implications apart from the financial burden on thegovernment that would follow by such orders of promotion.

10. As far back as in P.S. Sadasivaswamy vs. The State ofTamil Nadu, (1975) 1 SCC 152, considering claim for promotionbelated by 14 years, this Court had observed that period of six monthsor at the utmost year would be reasonable time to approach courtagainst denial of promotion and that it would be sound and wise exerciseof discretion not to entertain such claims by persons who tried to unsettlethe settled matters, which only clog the work of the court impeding it inconsidering genuine grievances within time in the following words :-

“2….. person aggrieved by an order of promoting junior overhis head should approach the Court at least within six months orat the most year of such promotion. It is not that there is anyperiod of limitation for the Courts to exercise their powers underArticle 226 nor is it that there can never be case where theCourts cannot interfere in matter after the passage of certainlength of time. But it would be sound and wise exercise ofdiscretion for the Courts to refuse to exercise their extraordinarypowers under Article 226 in the case of persons who do notapproach it expeditiously for relief and who stand by and allowthings to happen and then approach the Court to put forward staleclaims and try to unsettle settled matters. The petitioner’s petitionshould, therefore, have been dismissed in limine. Entertaining suchpetitions is waste of time of the Court. It clogs the work of theCourt and impedes the work of the Court in considering legitimategrievances as also its normal work. We consider that the HighCourt was right in dismissing the appellant’s petition as well asthe appeal.”

11. Mere repeated filing of representations could not be sufficientexplanation for delay in approaching the Court for grant of relief, wasconsidered in Gandhinagar Motor Transport Society vs. State ofBombay, A.I.R. 1954 Bombay 202, by Chief Justice Chagla, observingas follows :-

A“(2)…… Now, we have had occasion to point out that the onlydelay which this Court will excuse in presenting petition is thedelay which is caused by the petitioner pursuing legal remedywhich is given to him. In this particular case the petitioner did notpursue legal remedy. The remedy he pursued was extra-legalor extra-judicial. Once the final decision of government is given, aBrepresentation is merely an appeal for mercy or indulgence, but itis not pursuing remedy which the law gave to thepetitioner…”

12. The appellant, in its counter affidavit before the High Court,had specifically taken the objection that the claim was highly belated,Cand that any direction for retrospective consideration would have adestabilising effect in unsettling the settled position which would lead tocomplete chaos apart from other administrative consequences. TheHigh Court failed to consider the objection. In Union of India vs. M.K.Sarkar, (2010) 2 SCC 59, this Court observed as follows:-

D“16. court or tribunal, before directing ‘consideration’ of claimor representation should examine whether the claim orrepresentation is with reference to ‘live’ issue or whether it iswith reference to ‘dead’ or ‘stale’ issue. If it is with referenceto ‘dead’ or ‘stale’ issue or dispute, the court/tribunal should putEan end to the matter and should not direct consideration orreconsideration….”

13. In Dev Dutt (supra), the DPC was held on 16.12.1994. Theappellant therein, aggrieved by his supersession moved the High Courtwith utmost expedition leading to the pronouncement by the Single JudgeFon 21.08.2001 and by the Division Bench on 26.11.2001. The appealwas instituted before this Court in the year 2002. If that were notsufficient to distinguish the case of the respondents, reference may alsobe made to the observations in paragraph 36 as follows:

“36. In the present case, we are developing the principles of naturalGjustice by holding that fairness and transparency in publicadministration requires that all entries (whether poor, fair, average,good or very good) in the annual confidential report of publicservant, whether in civil, judicial, police or any other State service(except the military), must be communicated to him within areasonable period so that he can make representation for itsHupgradation.”

14. The High Court erred in placing absolute reliance on DevDutt (supra) and Sukhdev (supra) without noticing the fact situation ofthe respondents. In Union of India and another vs. Major BahadurSingh, (2006) (1) SCC 368, it was observed:-

“9. The courts should not place reliance on decisions withoutdiscussing as to how the factual situation fits in with the factsituation of the decision on which reliance is placed. Observationsof the courts are neither to be read as Euclid’s theorems nor asprovisions of the statute and that too taken out of their context.These observations must be read in the context in which theyappear to have been stated. Judgments of the courts are not to beconstrued as statutes. To interpret words, phrases and provisionsof statute, it may become necessary for judges to embark intolengthy discussions but the discussion is meant to explain and notto define. Judges interpret statutes, they do not interpretjudgments….”

15. subsequent pronouncement by this Court could not enthusea fresh lease of life, or furnish fresh cause of action to what wasotherwise clearly dead and stale claim. In State of Uttaranchal vs.Shiv Charan Singh Bhandari, (2013) 12 SCC 179, it was observedthat :-

“29…. Not for nothing, has it been said that everything may stopbut not the time, for we are all slaves of time. There may not beany provision providing for limitation but grievance relating topromotion cannot be given new lease of life at any point oftime.”

16. The observations with regard to the modus operandi of therepresentation syndrome to revive what are clearly dead and stale claimsas discussed in C. Jacob vs. Director of Geology and Mining, (2008)10 SCC 115, and the caution to be exercised by the Court are alsoconsidered apposite in the facts of the present case.

17. In the facts and circumstances of the present case, anydirection to consider retrospective promotion of the respondents at sucha belated passage of time of over 17 to 20 years, would virtually bring atsunami in the service resulting in administrative chaos quite apart from

Athe financial implications for the government. The order of the HighCourt is therefore held to be unsustainable and is set aside.

18. Both the appeals are allowed for the aforesaid reasons.

BDevika Gujral

Appeals allowed.