Holding

Seniority cannot be derived from an ad‑hoc officiating appointment not made per the service rules, and a judgment based on an illegal order cannot be used to claim equal benefits; however, promotions already granted to the respondent are not to be disturbed.

Summary

The case concerned several police officers who had been promoted on an officiating basis with a stipulation that they would not receive seniority until selected under the Bihar Police Manual Rules. The High Court had granted seniority and promotion to Brij Bihari Prasad Singh and Kameshwar Prasad Singh, relying on the doctrine of equality under Article 14. The Supreme Court held that seniority cannot be counted from an ad‑hoc officiating appointment that does not comply with the service rules, and that a wrong order cannot be used as a basis for claiming equal benefits. The Court also noted that the petitioners had failed to implead seniors who would be affected by the relief. While setting aside the High Court judgments, the Court protected the promotions already conferred on Brij Bihari Prasad Singh. The Court further condoned the delay in filing the appeals under the Limitation Act, emphasizing substantial justice over technicalities.

Issues considered

Whether seniority can be counted from an officiating promotion that was not made in accordance with the service rules.
Whether the doctrine of equality under Article 14 can be invoked to claim benefits granted by an illegal or irregular order.
Whether the failure to implead senior officers affected by the relief warrants dismissal of the petitions.
Whether the delay in filing the appeals can be condoned under the Limitation Act, 1963.

Legislation cited

Constitution of Indias. Article 14
Limitation Act, 1963s. 5

Subjects

senioritypromotionservice lawofficiating appointmentequalityArticle 14limitationcondonation of delaynon-impleadmentpolice service rules

Judgment

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

APRIL 27, 2000

B [S. SAGHIR AHMAD AND RP. SETIIl, JJ.]

Service Law :

Seniority-Period of officiation-Reckoning of-Sub-Inspector of Po-
lice-Promoted to the post of Inspector of Police on officiating basis-Order
c clearly stipulated that employee cannot claim seniority till duly selected-
Claim for seniority and promotion-Allowed by High Court-Validity of-
Held, 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 ofjustice promotions made not disturbed-
D Bihar Police Manual Rules-Rules 660(C) and 649.

Constitution ofIndia, 1950: Article 14-Equality-Concept of-Senior-
ity-Claim-High Court by granting seniority committing illegality or irregu-
larity-Another employee claiming similar relief-Validity of-Held, equality
is a positive concept and cannot be enforced in a negative manner-Benefits ;:
)-
E 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 ofparties-Effect of-Seniority-Claim for-Per-
-
F sons 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
G
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. ~4
. Limitation Act, 1963 :
Delay in filing appeal-Condonation of-Sufficiency of cause shown-
H
764
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
of Police on officiating basis with a clear stipulation that he will not get B
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 promo-
tions, 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', Sub-
Inspector 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, appel-
lants 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
~

~ 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] F
~ 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
with a clear stipulation that he will not get seniority in the rank of Inspec- G
tor 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 H
766 SUPREME COURT REPORTS [2000) 3 S.C.R.
A respondent 'B' totally ignored the basic principles governing the service ).._ _~
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.
B
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
c 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 ~
D 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 contra-
vention 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] ~
~

E
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
F cannot claim the same illegality or irregularity on ground of denial thereof
to them. Similarly wrong judgment passed in favour of one individual does ~l
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
G 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;
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 B
that High Court had dismissed the LPAs only on the ground of limitation
without deciding the other pleas raised by the appellants. But when spe-
cific 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]
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 D
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 E
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]

F
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, G
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. H
768 SUPREME COURT REPORTS [2000) 3 S.C.R.
A 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.
B
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
c 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

D
Coop. Land Owning Society Ltd. v. Union of India, [1991] 1SCC174; Binod
BiharSingh v. Union ofIndia, [1993] 1SCC572; Shakambari & Co. v. Union ' ~

ofIndia, [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.
..... ~

E 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
F
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.
G 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.
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
B

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 c
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
D
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
joined as Inspector of Police consequent upon his initial promotion on E
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 G
)- 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
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. H
770 SUPREME COURT REPORTS [2000] 3 S.C.R. .
A Ramjas Singh who was promoted as Inspector out of tum on the basis
.... .~

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
when Ramjas Singh was promoted as Dy.SP. The aforesaid writ petition was
B
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.
c
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
D 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 .-
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 ~
E 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
F Prasad Singh a number of senior officers are stated to have already super-
seded 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
upon the State.
G
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 hen-
H 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 A
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
B
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 recommenda-
tions 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 c
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 D
• 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
E
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 F
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
G
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:

"However, those persons are neither party in the present Letters Patent · H
.
772 SUPREME COURT REPORTS [2000) 3 S.C.R.
A 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
B 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
C 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 J..
D 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
E 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
F 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
G 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
H 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 A
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 c
·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 D
affect the interests of any senior officer.

Power to condone the delay in approaching the court has been con-
ferred 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 E
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: F

"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.
G
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 H
774 SUPREME COURT REPORTS [2000] 3 S.C.R.
A 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
B 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.
c
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 Insur-
ance ·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
E 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
F 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:

"It is notorious .and common knowledge that delay in more than
G 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
H same treatment and the law is ad.ministered in an even-banded
<

STATE v. K.P. SINGH [SETHI, J.] 775
manner. When the State is an applicant, praying for condonation of A
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
B
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 c
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 deten- D
tion of sufficient case for explaining every day's delay. The factors
which are peculiar to and characteristic of the functioning of prag-
matic 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-a-
vis private litigant could be laid to prove strict standards of sufficient E
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 adjust-
ment and should authorise the officers to take a decision to give
appropriate permission for settlement. In the event of decision to F
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
G
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
Acquisition, Kerala v. KV. Ayisumma, [1996] 10 SCC 634]. ... H
776 SUPREME COURT REPORTS [2000] 3 S.C.R.
A 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
B
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
c 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
D
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
E 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
F 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
G 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
H 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 respond- A
ents. The technicalities of law cannot prevent us from doing substantial justice
and undoing the illegalities perpetuated on the basis of the impugned judg-
ments. 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
B
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. c
Leave granted.

The facts as noticed earlier are not seriously di$puted. The respondent
Brij Bihari Prasad Singh had filed Writ Petition No.1556/90 praying therein D
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 E
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 F
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 G
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, H
778 SUPREME COURT REPORTS [2000] 3 S.C.R.
A 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
B
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:
c
"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.
D
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 rank1Inspector, and if necessary,
his confirmation on the post of Inspector would have to be made
E 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."
F
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
G 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
H from 1st March, 1975 bis seniority should be counted from the date of
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
A

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:
B
"Having heard the parties, my considered view is that the impugned
order dated 1st October, 1994 is completely illegal. The same is
l 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
in the rank of Inspector of Police with effect from 27th July, 1971. C
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 D
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 E
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
F
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 G
11th July, 1971 to 25th October, 1971. The appellants were further directed
to provide all consequential benefits to the petitioners.

Rule 649 deals with the promotion of Sub Inspectors to Inspectors and
Reserve Sub-Inspectors to Reserve Inspectors and provides: H
780 SUPREME COURT REPORTS [2000] 3 S.C.R
A "649. Inspectors and Reserve Inspectors_ (a) The promotion of Sub-
Inspectors 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 (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. I 02.

(c) At least 14 days before nominations are sent to the Deputy
c Inspector General the names of the nominees shall be published by
the nominating authority in district orders so that those who are not
nominated may have an opportunity of representing their cases before
the nominations are actually submitted. Officers, having such repre-
sentation to make, should be given interviews and their cases exam-
ined with them.
D
In case their representations are rejected. those who have been
superseded may file representation before Deputy Inspector General.
Such representation shall be submitted within 14 days of receipt of
information and this shall be forwarded soon to Deputy Inspector
E General, so that additional nominations may be sent on the orders of
Deputy Inspector General.

In forwarding the nominations a ce~cate must be given of the dates
on which the lists were published and intimations sent to those not
nominated. In selecting Sub-Inspectors and R~erve Sub Inspectors
F for promotion, preference should be given to those who have received
special commendation for integrity of character and good and
effective work.

(d) The Range Selection Board [Appendix 72(3)) shall scrutinize the
district nominations and shall select from among them in order of
G
merit those whose nominations are to be sent before the Inspector-
General's Selection Board [Appendix 72(1)] on a date to be fixed by
the Inspector- General.

(e) The Inspector-General's Selection Board [Appendix 72(1)] shall
H scrutinize the nominations of the Range Selection Board and compile
STATE v. K.P. SINGH [SETHI, J.] 781
a list of selections which should ordinarily be in order of seniority for A
promotion as vacancies occur. If an officer is placed higher in 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 con-
B
fined 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 pro- C
mated 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 D
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 vacan- E
cies arise in the order of the list.

Criteria taken together for determining outstanding records of service
will be as follows:
F
(i) Award of President's Police Medal and Indian Police Medal, for
gallantry and distinguished service.

(ii) Should not have been awarded any major punishment till the
date of consideration and order of out of turn promotion.
G
(iii) Very good entries in permanent Character Roll.

,> (iv) Citation regarding high standard of investigation, detection and
control of crime and intelligence work.

(v) Should have ability for shouldering higher responsibilities H
782 SUPREME COURT REPORTS [2000] 3 S.C.R.

A consonant with the proposed promotion [See Home (Police)
Department Notification No.GSR 34, dated 12th May, 1976].

Ramjas Singh was promoted under the aforesaid rule on 8.7.1972.

The respondent Brij Bihari Prasad Singh prayed his promotion to be
B made effective from 27th July, 1971 when he jointed as Inspector consequent
upon his promotion on officiating basis. The order of his promotion read as:

"Following Sub-Inspectors are promoted to officiate as Inspector
w.e.f. the date they join their place of posting noted against each. They
will not get the advantage of the previous contained in GOM VIII
c 1966 towards their seniority in the rank of Inspector till tbey are
finally selected by l.G.'s Board.

Sri Bijay Kumar Singh - P.S. Motihari as usual he will function as
Cr.O for Sadar Sub-division....."
D This Court in State of West Bengal & Ors. v. Aghore Nath Dey and
Ors., etc., [1993] 2 SCR 919 held that to enable seniority to be counted from
the date of initial appointment and not according to the date of promotion,
the incumbent of the post has to _be initially appointed "according to the
rules". Where the initial appointment is only adhoc an<J not according to the
E rules and made as a stop gap arrangements, the officiation on such post cannot
be taken into account for Jonsidering the seniority. In that case the Court
relied upon the judgment of the Constitution Bench in Direct Recruit Class
II Engineering Officers Association and Ors. v. State of Maharashtra & Ors.,
[1990] 2 SCR 900 wherein it was held that:

F "(A) Once an incumbent is appointed to a post according to rule, his
seniority has to be counted from the date of his appointment and
not according to the date of his confirmation.

The corollary of the above rule is that where the initial
appointment is only adhoc and not according to rules and made
G
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 proce-
dure laid down by the rules but the appointee continues in the
H post uninterruptedly till the regularisation of his service in
STATE v. K.P. SINGH [SETIIl, J.] 783
accordance with the rules, the period of officiating service will A
be counted.

(C) When appointments are made from more than one source, it is
"I
permissible to fix the ratio for recruitment from the different
sources, and if rules are framed in this regard they must
B
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 c
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
D
following the procedure prescribed by the rules for the appoint-
ment, the appointees should not be pushed down below the
appointees from the other source inducted in the service at a
later date.
--'- E
(F) vf.iere the rule permits the authorities to relax the provisions
relating to the quota, ordinarily a presumption should be raised
that there was such relaxation when there is a deviation from
the quota rule.

(G) The quota for recruitment from the different sources may be F
..... prescribed by executive instructions. if the rules are silent on the
subject

...
(H) If the quota rule is prescribed by an executive instruction, and
is not followed continuously for a number of years, the infer-
ence is that tlie executive instruction has ceased to remain G
operative.

(I) The posts held by the permanent Deputy Engineers as well as
the officiating Deputy Engineers under the State of Maharashtra
belonged to the single cadre of Deputy Engineers. H
784 SUPREME COURT REPORTS [2000] 3 S.C.R.
•-.(
A (J) The decision dealing with important questions concerning a
particular service given after careful consideration should be
respected rather than scrutinised for finding out any possible
error. It is not in the interest of service to unsettle a settled
position."
B It is thus evident that Brij Bihari Prasad Singh having been promoted
on officiating basis with a clear stipulation that he will not get seniority in
the rank of Inspector till finally selected could not have preferred a claim i
regarding his seniority on the basis of promotion of Ramjas Singh, though
initially junior to him yet substantively promoted in accordance with Rule
c 660C on 8.7.1972 whereas Brij Bihari Prasad Singh was promoted after
selection under Rule 649 in 1978. The High Court totally ignored the basic
principles governing the service rules and· the mandate of law. There was,
therefore, no justification of issuing the directions to direct the promotion of
Brij Bihari Prasad Singh while deciding the writ petition No.697of1995 and
D dismissing the LPA No.1018/95 vide the judgment impugned in this appeal
filed against Brij Bihari Prasad Singh.

It appears that the High Court totally lost sight of the fact that in his
petitions filed from time to time Brij Bihari Prasad Singh had not impleaded
any of his seniors as p&rty-respondents. In the absence of persons likely to ~
E be affected by the relief prayed for, the writ petitions should have normally
been dismissed unless there existed specific reasons for non impleadment of
the affected persons. Neither any reason 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
F 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
G 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
H submitted:
STATE v. K.P. SINGH [SETHI, J.] 785

- "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 N0.6 illegally scored a march over him
therefore on the principles of recognised service jurisprudence on
A

next below rule, the petitioner should be assigned seniority from
27.7.71 and be confirmed with effect from 2.7.78 and the petitioner B
be put just above the respondent no.~ in the seniority list of Inspector
of Police."

He had prayed that:

"For issuance of appropriate writ, order or direction to direct the c
official respondents to assign seniority in the rank of Inspector just
above the respondent No.6 and to confirm on the post of Inspector
with effect from 2.7.78 when his junior respondent no.6 has been
confirmed and for grant of all consequential benefits."

The writ petition was disposed of holding Kameshwar Prasad Singh as D
senior to Brij Bihari Prasad Singh as Sub Inspector of Police having been
confirmed as Inspector on 1.4.1982 with observeation:

"Subsequently, whatever the advantage, the respondent No.6 has
derived in pursuance of different orders of this Court, including the
orders/judgments passed in CWJC No.6873/90; 4108/91 and 6975/
E
95, were so obtained by him without impleading the petitioner aspart-
respondent therein.

In this background, while I do not doubt the decisions given by this
Court in different cases of respondent No.6, Brij Bihari Prasad and F
while I do not doubt the consequential orders which have been issued
by the respondents on the basis, I hold that the petitioner cannot suffer
for the same and he is entitled for seniority over the respondent No.6
as Inspector of Police, though not promoted, while the Respondent
No.6 was granted otliciating promo~n by way of stop gap arrange- G
ment on 27th July, 1971. ·

Accordingly, the respondents are directed to treat the petitioner as
senior to the respondent No.6 as Inspector of Police and provide him
with the consequential benefit of the same, including promotion to the
next higher post, if the petitioner is found fit for the same." H
786 SUPREME COURT REPORTS [2000] 3 S.C.R.
A The appeal filed against this judgment was dismissed on the ground of
delay and without consideration of the pleas raised on facts.

The concept of equality as envisaged under Article 14 of the Consti-
tution is a po&itive concept which cannot be enforced in a negative manner.
When any authority is shown to have committed any illegality or irregularity
ll in favour of any individual or group of individuals other 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. In this regard this Court in Gursharan Singh & Ors.
v. NDMC & Ors., [1996] 2 SCC 459 held that citizens have assumed wrong
c 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: A
D "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.
E 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
F & Ors., [1997] 1 SCC 35 this Court considered the scope of Article 14 of /
the Constitution and reiterated its earlier position regarding the ~ncept ·of
equality holding:

"Suffice it to hold that the illegal allotment founded upon ultra vires
and illegal policy of allotment made to some other persons wrongly,
G would not form a legal premise to ensure it to the respondent or to
repeat or perpetuate such illegal order, nor could it be legalised.
In other words, judicial process cannot be abused to perpetuate the
illegalities. Thus considered, we hold that the High Court was
clearly in error in directing the appellants to allot the land to the
H respondents."
STATE v. K.P. SINGH [SETHI, J.] 787
....: JI In State of Haryana & Ors V. Ram Kumar Mann, [1997] 3 sec 321 this Court A
observed:

"The doctrine of discrimination is founded upon existence of an
enforceable right. He was discriminated and denied equality as some
similarly situated persons had been given the same relief. Article 14
would apply only when invidious discrimination is meted out to B
equals and similarly circumstanced without any rational basis or
t relationship in that behalfJ The respondent has no right, whatsoever
and cannot be given the relief wrongly given to them, i.e., benefit of
withdrawal of resignation. The High Court was wholly wrong in
reaching the conclusion that there was invidious discrimination. If we c
cannot allow a wrong to perpetrate, an employee, after committing
mis-appropriation of money, is dismissed from service and subse-

•I: quently that order is withdrawn and he is reinstated into the service.
Can a similarly circumstanced person claim equality under Section 14
for reinstatement? The answer is obviously "No". In a converse case, D
in the first instance, one may be wrong but the wrong order cannot
be the foundation for claiming equality for enforcement of the same
order. As stated earlier, his right must be founded upon enforceable
right to entitle him to the equality treatment for enforcement thereof.
-iA. A wrong decision by the Government does not give a right to enforce
the wrong order and claim parity or equality. Two wrongs can never E
make a right."

In view of our finding that the judgment of the High Court in the case
of Brij Bihari Prasad Singh being contrary to law was not sustainable and
liable to be dismissed, the impugned judgment in the case of Kameshwar F
Prasad Singh's case cannot be upheld. The aforesaid respondent is, therefore,
not entitled to any relief as 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 seitjority G
,,,.. 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 dismiss~d 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 H
188 SUPREME COURT REPORTS [2000] 3 S.C.R
A 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 Superintend-
B ent 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
.1
of Deputy Superintendent of Police. The promotion of the petitioner
in the rank of Inspector is different from Ramjas Singh. The petitioner
was promoted to the rank of Inspector on adhoc basis with effect from
c 27.7.71 and has been confirmed with effect from 1.3.1975 on
availability of permanent vacancy alongwith those Inspectors who
were officiated on or before 27.7.1971, whereas Ramjas Singh was
promoted in the rank of Inspector out of tum on 8.7.1972 on
probation on the basis of Presidents Police Medal from gallantry.
D After expiry of probation of two years he (Ramjas Singh) had been
confirmed with effect from 8.7.1974 and promoted to the rank of
Deputy Superintendent of Police, with effect from 25.10.1975,
alongwith others. As such petitioner is not validly entitled for
promotion to the rank of Deputy Superintendent of police from the

E
earlier date when Sri Ramjas Singh was promoted to the rank of +
Deputy Superintendent of Police with effect from 25.10.1975."

In the memo of appeal, the appellant herein submitted that the promotion case -
of the respondent was different from that of Ramjas Singh. It was pleaded:

" .... The petitioner was promoted to the rank of Inspector on adhoc
F
basis with effect from 27.7.1971 and later on he was given officiating
promotion from mat very date, i.e. 27. 7 .1971 and was confirmed with
effect from 1.3.1975 on the availability of permanent vacancy alongwith
those Inspectors, who were officiating on or before 27.7.1971 and
promoted to the rank of Deputy Superintendent of Police with effect
G from 11.7.1981 according to seniority. As stated earlier Sri Ramjas
Singh was promoted out of tum in the rank of Inspector on 8. 7 .1972
~
on the basis of gallantry award by the Govt. and the period of
probation was treated by the government from 8.7.1972 itself. After
expiry of probation of two years he was confirmed with effect from
H 8.7.1974 and promoted in the rank of Deputy Superintendent of
STATE v. K.P. SJNGH [SETHI, J.] 789
Police from 25.10.1975. It was an exceptional case. This is not A
)I followed in general officiating officers are confirmed on availability
of permanent vacancy and not put on probation from the date of
officiation. If this respondent is put on probation with effect from
27.7.1971 i.e. from the date of officiation so many police officers will
be superseded."
B
The State also submitted that the learned Single Judge of the High
Court had committed a mistake of law by not considering all aspects of the
matter before allowing the writ petition on 26th July, 1975 which 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 c
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
D
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 JPS 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 E
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 appr<>J>riate 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 F
given to protect the interests of a person who is found to have been conferred
the benefits on the basis of judicial pronouricements made in his favour. As
the appellant-State has been found to be careless and negligent in defending
its cases, we feel and are inclined to protect the interests of Brij Bihari Prasad
Singh, respondent. We are convinced that the interests of justice would be
served by holding that despite setting aside the judgments of the High Court G
his interests be protected by not disturbing his promotions made from time
to time. However, judgments passed in his favour cannot be permitted to be
Ii-· made a basis for conferment of similar rights upon other persons who are
shown to have filed writ petitions or representations which, if accepted, are
likely to adversely affect the interests of more than 150 Inspectors and 400 H
790 SUPREME COURT REPORTS [2000] 3 S.C.R.
A Officers in the rank of Dy.SP. Similarly, if any benefit has been conferred
upon an}'. other person who has superannuated, no useful purpose would be ~·
served by directing his demotion retrospectively and recovery of the excess
emoluments paid to him.

Under the circumstances, the appeals are allowed/disposed of with the
B directions that:

(1) Judgments of the learned Single Judge and of the LPA Bench
passed in the case of Brij Bihari Prasad Singh impugned in Civil
Appeal arising out of SLP (C) No.12013 of 1998 are set aside.
c (2) Similarly the judgments passed in Kameshwar Prasad Singh's
case by the Single JUdge and the LPA Bench which are impugned in
this appeal arising out of SLP (C) No.10653/98 are also set aside.

(3) In view of setting aside the judgments in both the appeals
D mentioned above no orders are required to be passed in Civil Appeal
arising out SLP (C) No.16740/98.

(4) It is, however, made clear that despite setting aside of the
impugned judgments the service benefits conferred upon Brij Bihari
Prasad Singh consequent upon the judgments of the High Court shall
E '" not be withdrawn and his appointment/promotion in the IPS cadre not
disturbed.

(5) Consequent upon this judgment the appellant-State shall also not
take any action against a person conferred with similar benefits as
F were conferred upon Brij Bihari Prasad Singh if that person has
retired and is no more in service.

Parties to bear their own costs.

S.V.K. Appeals disposed of.