[2008] 14 S.C.R. 260

. .RAJINDER PAL SINGH LAMBA r~

I v.

SURAJ BHAN & ORS. (Civil Appeal No. 2274 of 2002)

OCTOBER ;3, 2008

[R.V."RAVEENDRAN AND DR. MUKUNDAKAM

SHARMA, JJ.] r-

High Court Rules and Orders - Chapter 18-A, r. . VI - Pro- . c motion to post of UDC - Claim for, by LDC's with retrospective effect in terms of Rule VI - Permanent vacancies in cadre of UDC arising in 1975 and claim raised 11:.12 years thereafter

- In pursuance of the order of High Court, claimants gra_nted promotion with retrospective effect but without monetary ben-

D efits - Challenge to, on the ground that claim had become time barred and s. 35(3) of 1918 Act, under which Rule VI framed, stood repealed - Allowed by Division Bench - On ',._.....· appeal, held: Rule VJ was valid and applicable on the relevant date by virtue of Article 9 of Order 1937 - Though there was

E considerable delay, on facts, in the interest of equity, benefits of pr9motion with retrospective effect already rceived by . claimant not taken away, but not entitled to any additional benefit- Punjab Courts Act, 1918s. 35(3) - Government of India (Adaptation of Indian Law) Order 1937 - Service Law.

F Delay/Laches - Delay of more than a decade in apt proaching court in service matters - Effect of, when applicant l seeking equity- Held: Delay defeats equity- Delay of 11-12 years cannot be overlooked as it jeopardises the existing positions of other employees - Equity - Service law.

G Appellants-'RS' and 'VK' were appointed as LDC in 1972 and 1969 in the Ministerial Establishment in the Court

I~_,,.~ of the District & Sessions Judge, Delhi. They became

graduates in the years 1975 and 1974 respectively. The permanent vacancies in the cadre of UDC occurred in H 260

RAJINDER PAL SINGH LAMBA v. SURAJ 261

BHAN & ORS:

___ :T

1975. In 1986 and 1987 appellants sought promotion to A the posts of UDC w.e.f. 1975 in terms of Rule VI, Chapter 18-A, High Court Rules and Orders framed u/s. 35(3) of the Punjab Courts Act, 1918. Their claim was rejected . . However, the service appeals on the administrative side were allowed, but the appellants.were directed to be con- B sidered for promotion with prospective effect only. Ag-

_ _J grieved, appellants filed writ petitions seeking promotion and other service benefits with retrospective effect. Meanwhile, appellants were promoted to the grade of UDC with prospective effect. The Single Judge of High Court held c that the appellants should be deemed to have been promoted as UDC w.e.f. 01.01.1976 but without monetary benefit for the said period. It was also held that respondent No. 4-High Court of Delhi and respondent No.5-District & Sessions Judge, Delhi would also give the benefit D to the other similarly situated persons who had become

..,___( graduates before 01.01.1976. Thereafter, two UDC's working on the post, filed appeals that the claim was barred by laches as the representations were made after a lapse of about 11-12 years; and thats. 35(3) ofthe Punjab Courts E Act, 1918 under which, Rule VI was framed stood repealed, thus, Rule VI ceased to exist. Appellants also filed appeals claiming monetary benefits. The Division Bench allowed the appeal filed by the said two UDCs. Hence the appeals. j F Disposing of the appeals, the Court

HELD: 1.1 Rule VI of the Chapter 18-A, High Court Rules and Orders was valid and applicable on the relevant date despite the fact that s. 35(3) of the Punjab Courts Act, 1918 stood repealed by the Government of India (Ad- G

->--\

aptation of Indian Law) Order 1937, by virtue of Article 9 of Order of 1937. Rule VI has been in operation without any amendment therein until 19.03.1999 when fresh rules of promotion were framed by the Punjab & Haryana High Court substituting Rule VI as published in Punjab Gov- H

A ernment, Gaz., March 19, 1999 (PHGN, 1920, SAKA). [Para

12] [268, ~~B; 268, E-F]

1.2 Respor:ident No. 4 ws under a fiduciary duty and was required to consider the name of appellants for promotion to the post of UDC in accordance with the status tory rule as and when the vacancy arose. Unfortunately,

there was lapse on the part of Respondent No. 4 due to which the case .of the appellants for promotion could not be considered. At the same time it cannot be scored out that the appellants slept over their rights, which led to a C considerable delay i.e. delay of 11-12 years on the part of the appellants to give representation for promotion to the grade of UDC. [Paras 13 and 14] [268, F-H]

1.3 Delay defeats equity is a well-known principle-of

0 jurisprudence. Delay of 11 to 12 years cannot be overlooked when an applicant before the court seeks equity and specially in the case of service matters as in the said case it jeopardises the existing positions of a very large number of members of that service. [Para 14] [269, A-B]

E 1.4 Though the appeal was filed against the common judgment and order passed by the Single Judge but only the appellant 'RS' was added into the array of respondents, thus, not challenging the relief granted to the other appellant. Respondent Nos. 1 and 2 did not raise the issue F of de1ay and laches before the Single Judge and the said issue was raised for the first time in appeal before the Division Bench of the High Court. The plea of delay and laches raised by respondent Nos. 4 and 5 was declined by the Single Judge on the ground that once there was a G statutory rule the said respondents were obliged to follow the same. [Para 17] [269, D-F]

1.5 As on date, respondent Nos. 1 and 2 have no grievance against the appellants as they stood retired and no benefit will accrue upon them even if the order deny- H ing the promotion to the appellants to the post of UDC

RAJINDER PAL SINGH LAMBA v. SURAJ 263

BHAN & ORS. -- ) w.e.f 01.01.1976 is allowed. On the other hand the promo- A tion to the appellants with retrospective effect, i.e., w.e.f 01.01.1976 was granted subsequent to the judgment and order of the Single Judge which was in the year 1998 and they have been further promoted to the post of the Assistant. The appellants have reaped the benefits of promo- 8 tion with retrospective effect for nearly 10 years. [Paras ---l 15 and 18] [269, F-H; 269, B]

1.6 Though it cannot be denied that there was considerable delay and the observations of the Division

Bench in this regard cannot be faulted with but in the pec culiar facts and circumstances of the case it would not be fair to the appellants if the benefits they had secured are taken away. Therefore, it is directed that the benefits granted to the appellants and already received by them pursuant to the order of Single Judge shall not be taken D

..... away as they have enjoyed such benefit for a very long '-1' period of time. However, they shall not be entitled to any additional benefit and no additional benefit will be granted.

Such relief cannot be granted to anybody else. [Para 19]

[270, A-C] E

CIVIL APPEPPATE JURISDICTION : Civil Appeal No. 2274 of 2002

From he final Judgment and Order dated 18.4.2001 of 7 the High Court of Delhi at New Delhi in LPA No. 30 of 1999 F

WITH

C.A. No. 6050 of 2008

C. Hari Shankar, C.M. Jayakumar, Jagdish Kainikkara and Tara Chandra Sharma for the Appellant.

_. __ \ 8.8. Singh, Subhash Kaushik, S. Pandey and D.S. Mahra \

for the Respondents.

The Judgment of the Court was delivered by H

A DR. MUKUNDAKAM SHARMA,. J. 1. Leave granted in

. B

SLP (C) No. 6878 of 2002

2. What is challenged in these appeals is the judgment. and order ofthe Division Bench of Delhi High court whereby the appeals filed against the order of the Ld. Single Judge in two Writ Petitions were allowed. . .

3. The .grievance of the appeHants as v 1ias .raised in the Writ Petitions, in nutshell, i~.as.follows:""· ·

S/Shri Rajendera Singh Lamba andV.K Garg, appellants G herein were appointed as LowerDiyision Clerks (for short 'LDC') on 01. 10: 1972. and24.11.1969 respectivel'y, in th.e Ministeri<il Establishment of the District & Sessions Judge; Delhi. During .. their employment they co111pleted thei'r graduation from belhi

University in the year 1975 and 1974 respectively: S/Shri o . Rajinderpal Singh Lamba and V.K. Garg on 24.12.1986 and.

02.01.1987 respectively submitted their applications.to the. Dis-· trict & Sessions Juqge, Delhi see1<ing:promotion'.to the posts of

Upper Division Clerk (.for short 'UDC'), The said. applications were maqe seeking'benefitofHuJe VI, Chapter.18-A; High.Court.

E Rules and Orde.rs, Vof. 1. frame.d under. $edion35(3) ofthe . ~· Punjab Courts Act, 1918. 're said.Rule reads as under:-

"Promo.tion--(1) Appointmehtsto.the hrgher grades of the ministerial estabtishmentsh.ould.ordinarily bemade by seniority from lower grades, provided thadhe official who

. (.

would th.us recive promotion posssses the prescrib¢d. ,,,.. . education.al qualifications and is olhel'Wise fi:t to. perform F

. the duties to which he will be prom9ted;.f.orwhich purpose tests my be .imposed, This rule does nofc.ipply to such posts as that. of stenographer; tor which speciat

qualifications are rieeed; but preference should be given to officers with such qualifications who are already working . in the lower. grades; · ~·

Provided that permanent vacandes In the 75~5-125 grade .shall be filled by the Di'strict & Sessions Judges in the . following rotaion:~- ·

- y

(i) By selection on merit out of graduates who have atheist A I

two years' experience in the work of the office, if there is no suitable graduate who fulfills this condition an 'outsider' graduate may be appointed, but he must be one who normally resides within the jurisdiction of the District & Sessions Judge.

- ·'

(ii) & (iii) By normal promotion in the office, i.e., the appointment of the next. senior man whether graduate or non-graduate subject to his fitness:

Provided further that the rotation may be modified in very c exceptional cases when the direct appointment of a graduate would mean the ousting of a man, who had been officiating quasi-permanently in the post concerned for an appreciable period. What is an appreciable period will depend on the circumstances of each case. After such a: D modification, the rotation should be restored as soon as .... possible. '-.'

(2) In making promotions preference may invariably be shown to officials who are known to be strictly honest. No promotion should be given and no recommendation for E promotion made in the case of an official who does not possess and maintain a reputation for strict integrity.

Efficiency without honesty is not to be regarded as constituting a claim to promotion."

.J The appellants were seeking their promotion w.e.f. 1975, F

as according to them permanent vacancies in the cadre of UDC have occurred in the year 1975.

The said appl'ications were rejected by the District and Sessions Judge, Delhi. Aggrieved by the said rejection the ap.,. G pellants filed service appeals in the Administrative sioe of Delhi

. .-.,.~ High Court. By communication dated 02.03.1988, the service appeals were allowed, but to the extent that the appellants are entitled to be considered for promotion to the grade of UDC and that the promotion, if any, will be prospective only.

A The appellants still aggrieved, as the promotion and other service benefits were not granted with retrospective effect, approached the Delhi High Court, on Judicial Side, by filing two separate writ petitions.

4. In the meantime acting upon the aove-mentior:ied com- B munication dated 02.03.1988 the appellants viz. V.K. Garg and

Rajinderpal Singh Lamba were promoted to the grade of UDC with effectfrom 1.4.1988 and 30; 1.1992 respectively, with prospective effect. c

5. The Ld. Single Judge while disposing of the writ petitions held that as there were number of vacancies in thepost of

UDC in the year 1975-76, the claims of the appellants could and should have been considered in accordance with the statutory rules embodied in Rule VI, Chapter 18-A, High Court Rules

0 and Orders and consequently ordered that the appellants be deemed to have been promoted as U DC w.e.f. 01.01.1976.

However, they were denied monetary benefit for the said period ..

The Ld. Single Judge further helo that the High Court of E Delhi and the District & Sessions Judge, Delh.i being. respondent No. 4 and 5 herein, would also give the benefit to the other similarly situated persons like the appellants, who had become graduates before 01.01.1976.

6. The order of the td. Single Judge was challenged by F two of the private respondents viz. Shri Suraj. Bhan and Radha Krishan, who were working on the post of UDC at that point of time, primarily on the below mentioned grounds::-

i) The representations were made after a lapse of about 11/12 years, thus the claim was barred by !aches;·

ii) Section 35(3) of the Punjab Courts Act,' 1918 under which, Rule VI was framed stood. repealed by the

Government of India (Adaptation of indian Law) Ordt

1937 as a result of which the said rule ceased to ' ' exist.

-fi

---- An appeal was also filed by the appellants claiming mon- A etary benefits, which were denied by the Ld. Single Judge.

7. The Division Bench allowed the appeal filed by the private respondents, respondent No. 1 and 2 herein, primarily on the ground that since the rule of promotion with retrospective B effect involves the issue of seniority as well, the said issue and

-·-\ question cannot be re-opened after lapse of a considerable time and reasonable period to disturb the settled position. It was therefore held that the writ petition was liable to be rejected. On the issue of validity and applicability of Rule VI it was held that the said rule was applicable at the relevant trme as the same c was saved by virtue of Article 9 of Order of 1937. As against the said impugned order this appeal was filed.

8: It is pertinent to mention at this stage that both the appellants after being promoted to the post of UDC in the year D

.... 1988 were further promoted to the post of Assistant, in the year

( 1995 in case of Shri V.K. Garg and in the year 1997 in case of Shri Rajender Pal Singh.

9. In the backdrop of the aforesaid facts we heard learned couns_el for the parties and perused the record.

10. The learqed counsel for the appellants placing reliance on Rule VI contended that as per the said statutory rule which was valid and applicable at the relevant time the respondent

"' j

Nos. 4 and 5 were obliged to consider appellants for promotion to the grade of UDC when there were number of vacancies in F

the said grade in the year 1975-76. He further argued that as the rule was statutory in nature the benefit of the said rule can- .. , not be denied on the ground of delay and laches .

11. None appeared on behalf of respondent No. 1 and 2, G

r',.)

viz. Shri Suraj Bhan and Radha Krishan who filed the appeal before the Division Bench of the High Court. We were told that both of them have retired during .the pendency of present proceedings. Counsel appearing for the remaining respondents reiterated the stand taken before the Division Bench.

12. So far as Rule VI, of the Chapter 18-A, High Court Rules and Orders is concerned the same was-valid and applicable on the relevant date despite the fact that Section 35(3) of the Punjab Courts Act, 1918 stood repealed by the Government of India (Adaptation of Indian Law) Order 1937, by virtue of Ar- B ticle 9 of Order of 1937. Article 9 reads as under:

"The provisions of this Order which adapt or modify Indian laws so as to alter the manner in which, the authority by which, or the law under, or in accordance with which, any powers are exercisable, shall not render invalid any notification, order, commitment, attachment, byelaw, rule or regulation duly made, or issued, or anything duly done, before the commencement, of this Order; and any such notification, order, commitment, attachment, byelaw, rule, regulation or thing may be revoked, varied or undone in the like manner, to the like extent and in the like circumstances as if it had been made, issued or done after the commencement of this Order by the competent authority and under and in accordance with the provisions then applicable to such a case." ·

Rule VI has been in operation without any amendment therein until 19.03.1999 when fresh rules of promotion were framed by the Punjab & Haryana High Court substituting Rule VI vide Punjab Government, Gaz., March 19, 1999 (PHGN,

1920, SAKA).

13. The Respondent No. 4 was under a fiduciary duty and was required to consider the name of appellants for promotion to the post of UDC in accordance with the statutory rule as and when the vacancy arose. Unfortunately, there was lapse on the G part of the Respondent No. 4 due to which the case of the appellants for promotion could not be considered.

14. At the same time it cannot be scored out that the appellants slept over their rights, which led to a considerable delay i.e. delay of 11-12 years on the part of the appellants to give H representation for promotion to the grade of UDC. Delay de-

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feats equity is a well-known principle of jurisprudence. Delay of A 11 to 12 years cannot be overlooked when an applicant before the court seeks equity and specially in the case of service matters as in the said case it jeopardises the existing positions of a very large number of members of that service.

15. The appellants, however, submitted that pursuant to B

the order of the Ld. Single Judge they have been granted pro-

~-\ motion w.e.f 01.01.1976 and they have been further promoted to the post of the Assistant.

16. Thus the question is, whether we should now take away c

I the benefit which the appellant had actually obtained under the order of the Ld. Single Judge. The settled position has been once / unsettled by the order of the Ld. Single Judge which has now some how settled again, the question is also that should we by our order now once again unsettle the so called settled position.

...

17. Interestingly though the appeal was filed against the ----., common judgment and order passed by the Ld. Single Judge but only Shri Rajendera Singh Lamba was added into the array of respondents, thus, not challenging the relief granted to Shri V.K. Garg. Respondent Nos. 1 and 2 did not raise the issue of E delay and laches before the Ld. Single Judge and the said issue was raised for the first time in appeal before the Division Bench of the High Court. The plea of delay and laches raised by respondent Nos. 4 and 5 was declined by the Ld. Single ..

Judge on the ground that once there was a statutory rule the F -+ said respondents were obliged to follow the same.

18. As of today respondent Nos. 1 and 2 have no grievance against the appellants as they stood retired and no benefit will accrue upon them even if the order denying the promotion to the appellants to the post of UDC w.e.f 01.01.1976 is G

./ ~; allowed. On the other hand the promotion to the appellants with retrospective i.e. w.e.f 01.01.1976 was granted subsequent to the judgment and order of the Ld. Single Judge which was in the year 1998. As of now, the appellants have reaped the benefits of promotion with retrospective effect for nearly 10 years.

19. Though it cannot be denied that there was considerable delay and the observations of the Division Bench in this regard cannot be faulted with but in the peculiar facts and circumstances of the case we do not think that it would be fair to the appellants if the benefits they had secured are taken away. s Therefore, we direct that the benefits granted to the appellants

and already received by them pursuant to the order of Ld. Single . Judge shall not be taken away as they have enjoyed such benefit for a very long period of time. However, they shall not be entitled to any additional benefit and no additional benefit will c be granted. Obviously, such relief cannot be granted to anybody

else.

20. We make it clear that all the observations made herein are our views and opinion in the peculiar facts and circumstances of the present case. The questions of law raised be- D fore the High Court are kept open to be examined by this Court in an appropriate case. Needless to say, this order shall not be construed as a precedent in any other matter.

21. Accordingly, the appeals are disposed of in terms of the aforesaid order. No order as to cost.

N.J.

Appeals disposed of.

1 <