Case: Union of India &amp; Others Vs. Chaman Rana &amp; Another

2. These two appeals arise from a common order dated 05.05.2017, directing retrospective consideration for promotion of the respondents to the post ofd and Commandant respectively, in the Border Security Force (BSF), from the date that their juniors had been promoted, along with all consequential benefits3. The respondents in the two writ petitions were superseded in the years 1996 and 2000, respectively. Both of them were subsequently promoted on 28.11.1997 and 16.06.2003 asd and Commandant respectively. Subsequently, both of them submitted several representations for promotion from the date of supersession. Orders rejecting the representations, along with reasons, were duly communicated to them more than once. After the pronouncement in Sukhdev Singh v. Union of India & ors., (2013) 9 SCC 566 affirming Dev Dutt v. Union of India & ors., (2008) 8 SCC 725  , separate writ petitions were filed by them on 25.09.2016. The common plea taken was that the entry `good in their annual confidential reports (ACRs) for the relevant years was an adverse remark in view of the benchmark of `very good. Since the adverse entry had not been communicated to them, it could not be taken into consideration, requiring reconsideration for promotion from the date of supersession7. The benchmark for promotion to the posts in question under the BSF (Seniority, Promotion and Superannuation of Officers) Rules of 1978, as prescribed in paramilitary Promotion DO letter dated 25.11.1988 was modified on 08.05.1990 from `Good to `Very Good. The respondent Chaman Rana, a Deputy Commandant was considered for promotion to the rank ofd at the departmental promotion committee (DPC) meeting held on 13.09.1996 but could not make the grade in view of the criteria prescribed in DO letter dated 08.05.1990. The respondent represented on 20.02.1997 against his supersession. An order of rejection with reasons was communicated to him on 25.03.1997. The cause of action had, therefore, accrued to seek relief before a court of law. Nonetheless a repeat representation was made on 31.07.1997, and a reasoned rejection was again communicated on 07.05.1998. In the meantime, the respondent was empanelled to be considered for promotion to the rank ofd by the DPC held in the year 1997, and he was promoted as such on 28.11.1997. A cause of action again accrued to the respondent for approaching the Court for relief but he again represented on 30.06.1998, followed by further representations on 14.09.1998, 22.08.2000, 22.08.2006. A fresh reasoned order of rejection was again communicated on 16.05.2007. Repeat representations followed on 28.08.2012, 07.11.2015 and 20.11.2015 after which the writ petition came to be instituted8. Likewise, the respondent Gulshan Kumar Sharma was considered for promotion as Commandant in the years2 by the DPC but was superseded as he failed to secure the benchmark. He represented on 25.10.2001 and was informed on 09.01.2002 that he had failed to secure the benchmark. The cause of action to approach the Court for grant of relief had accrued to the respondent but he again represented on 18.03.2002. An order of rejection along with reasons was again communicated to him on 01.09.2004. After he was promoted as Commandant on 16.06.2003, instead of approaching the Court, he again represented on 04.05.2005, followed by another representation on 08.01.2007. A reasoned order of rejection was again communicated to him on 17.04.2008. This was followed by further representation on 11.08.2009 which was again rejected on 02.09.2009 allegedly communicated on 01.01.2016. A further representation dated 03.08.2015 was also rejected on 27.11.2015. The writ petition then came to be instituted.

Reasoning:
14. The High Court erred in placing absolute reliance on Dev Dutt (supra) and Sukhdev (supra) without noticing the fact situation of the respondents15. A subsequent pronouncement by this Court could not enthuse a fresh lease of life, or furnish a fresh cause of action to what was otherwise clearly a dead and stale claim16. The observations with regard to the modus operandi of the representation syndrome to revive what are clearly dead and stale claims as discussed in C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115  , and the caution to be exercised by the Court are also considered apposite in the facts of the present case17. In the facts and circumstances of the present case, any direction to consider retrospective promotion of the respondents at such a belated passage of time of over 17 to 20 years, would virtually bring a tsunami in the service resulting in administrative chaos quite apart from the financial implications for the government9. Manifestly, the cause of action first arose to the respondents on the date of initial supersession and again on the date when rejection of their representation was communicated to them, or within reasonable time thereafter. Even if the plea based on Dev Dutt (supra) be considered, the cause of action based thereon accrued on 12.05.2008. There has to be a difference between a cause of action and what is perceived as materials in support of the cause of action. In service matters, especially with regard to promotion, there is always an urgency. The aggrieved must approach the Court at the earliest opportunity, or within a reasonable time thereafter as third party rights accrue in the meantime to those who are subsequently promoted. Such persons continue to work on the promotional post, ensconced in their belief of the protection available to them in service with regard to seniority. Any belated interference with the same is bound to have adverse effect on those already promoted affecting their morale in service also. Additionally, any directions at a belated stage to consider others for promotion with retrospective effect, after considerable time is bound to have serious administrative implications apart from the financial burden on the government that would follow by such orders of promotion.