TMI Blog2000 (4) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... atna 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 joined as Inspector of Police consequent upon his initial promotion on 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 27.7.1971. However, on 13.4.1993 the DGP modified 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 Sl.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 reckoning his seniority as Inspector with effect from 27.7.1971 and grant of all consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 benefits. He claimed to have been appointed along with Brij Bihari Prasad Singh as Sub Inspector of Police in January, 1966. His name was shown above the name of Brij Bihari Prasad Singh in the cadre of Sub Inspectors. 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 promotion on the higher post of Inspector of Police. On the basis of the recommendations made by the Board a Gazette Notification is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch ultimately and eventually adversely affected their interests. We have heard the arguments of the learned counsel appearing for the 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 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 the respondents herein. According to the learned counsel 14 similar writ petitions and three contempt petitions are pending before the High Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag Anr. vs. 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: 1. 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 second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 finding even untrammelled by the conclusion of the lower court. Looking into the facts and circumstances of the case, as noticed earlier 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 fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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, 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 his 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 senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid fact, numerous decisions, including the 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 confirmation 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 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 appellant-State 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the list than his seniority warrants a full note giving reason shall be recorded. This list shall be of as many Sub-Inspectors as there are vacancies plus few anticipatory vacancies depending on averages of last few years. Promotions by the Inspector-General under clause (a) shall be confined to this list but if any one does not get appointed from the list, his case shall be reviewed again at the time of preparation of the next year's list and if found fit, he shall be placed above the selected nominees of that year. The respondent Brij Bihari Prasad Singh is stated to have been promoted as Inspector in terms of the said Rule on 2nd July, 1978. Rule 660(c) deals with the out of turn promotions and reads: Selection Boards may recommend out of turn promotion of officers with outstanding records of service and competent authorities may order such promotion in deserving cases as they deem fit and proper with the approval of next higher authority. Officers so promoted should be placed below the officers of the approved existing list of respective rank prepared by Selection Boards and be confirmed against substantive vacancies as and when vacancies arise in the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason was assigned by the writ petitioner 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 supersession of 168 Inspectors and 407 Dy.SPs. The writ petition filed by Brij Bihari Prasad Singh 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. The appeal of the State has, therefore, to be allowed by setting aside the impugned judgment. Kameshwar Prasad Singh respondent in his petition has preferred his claim of promotion on the ground of promotion of his junior Brij Bihari Prasad Singh who was impleaded as respondent No.6. He had specifically submitted: That from the facts, law and circumstances stated above it is clear that the petitioner was at all material times senior to the respondent No.6 and the respondent NO.6 illegally scored a march over him therefore on the principles of recognised service jurisprudence on next below rule, the petitioner should be ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this regard this Court in Gursharan Singh Ors. v. NDMC Ors. [1996 (2) SCC 459] held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. 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 writ petition filed in the High Court. The Court observed: Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. Again in Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain Ors. [1997 (1) SCC 35] this Court considered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prayed for by him on the analogy of the judgments passed and directions given in Brij Bihari Prasad Singh's case. We do not agree with the submissions of the respondents that the question of law raised by the appellants in regard to determination of seniority could not be permitted to be raised as allegedly the said point had not been pleaded before the High Court and is altogether a new point taken for the first time in this Court. As noticed earlier, the High Court had dismissed the LPAs only on the ground of limitation without deciding the other pleas raised by the appellants. A perusal of LPA No.1018 of 1995 (Annexure P-6) shows that in para 9 the appeallant State had submitted that the Home Secretary of the State had filed a counter affidavit in the writ petition No.697 of 1995 stating therein: it is not correct to say that the petitioner (respondent in this appeal) is validly entitled to be promoted to the rank of Deputy Superintendent of Police from earlier date when junior to him namely Ramjas Singh joined as inspector on 8.7.1972 has been promoted to the rank of Deputy Superintendent of Police. The promotion of the petitioner in the rank of Inspector is differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich required to be interfered with by the Division Bench of the High Court in the LPA. When specific plea regarding facts and law had been raised in the LPA, the arguments of the respondents cannot be accepted that such a plea had been raised by the appellant for the first time in this Court. It is further contended that as the respondent was, in the meantime, appointed/promoted in the IPS Cadre and as per requirements of the State Government he has already submitted his resignation from the State Service, the acceptance of the appeal and setting aside the directions of the High Court would result in great hardship to him and amount to unsettling his settled service rights particularly when his promotion/appointment to the IPS cadre has not been challenged and is not in dispute. Such a plea by itself cannot be accepted as a ground to dismiss the appeal filed against an order which we have held to be illegal being contrary to law and the Service Rules applicable in the case. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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