Shiba Shankar Mohapatra & Ors vs State Of Orissa & Ors

Shiba Shankar Mohapatra & Ors. ... Appellants

Vs.

State of Orissa & Ors. ... Respondents

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. Leave granted in all the matters.

2. These appeals have been preferred against the judgment and order

dated 7.2.2008 passed in writ petition nos.426, 1233, 2878, 3424 and 5637

of 2006 by the High Court of Orissa at Cuttack by which the High Court has

partly allowed all the writ petitions quashing certain directions issued by the

Orissa Administrative Tribunal (hereinafter called the `Tribunal'), however,

directed to reconsider the case of promotion of Sub-Inspectors (General)

(hereinafter called `SIs (g)') to the post of Inspectors, in case it is found that 2

the SIs (g) had been placed below the Sub-Inspectors (Steno) (hereinafter

called SIs (St), they should be granted promotion from the date their

counterparts in the other wing had been promoted, in case, they fulfilled

minimum eligibility criteria for promotion at the time of consideration of

their respective juniors. Such an exercise was directed to be completed

within a period of six months. However, the writ petitions have been

allowed to the extent that the direction issued by the Tribunal to prepare the

gradation list of SIs (St) and SIs(g) in accordance with the dates of passing

out of the Sub-Inspector training course, has been quashed.

3. The facts and circumstances giving rise to these appeals are that most

of the officers appellants/respondents involved in all these five appeals, had

been appointed in 1972-73 onwards as SIs (g) and SIs (St). The eligibility

for appointment had been different for both the wings. An additional

qualification of stenography was required for the post of SI (St). After

selection, candidates who were appointed as SIs (St) were given direct

appointment and after five years, thereof, they were sent for training and

after successful completion of training, they could become SIs(g) and could

be considered for further promotion as Inspectors. So far as the SIs (g)

were concerned after their selection they were sent for training in Police 3

Training College and after completion thereof, they were appointed on

probation for 2 years. Most of the officers belonging to both groups had

been promoted as Inspectors, Deputy Superintendent of Police and

Superintendent of Police and by now retired after attaining the age of

superannuation. There are claims and counter-claims regarding issuance of

their inter-se seniority lists in 1979, and in the year 1992. However, it

remains undisputed that after considering the objections received by the

Department, a final inter-se seniority list was issued in 1997 and again in

1999. One SI (g) Parsuram Sahu, appointed in 1968 filed representation

before the State Govt. to fix his seniority over and above two officers

belonging to the group of SIs (St) and as no order was passed he

approached the Tribunal by filing OA No.316/2000 - Parsuram Sahu v.

Principal Secretary, Home Department, Govt. of Orissa & Ors. with a prayer

for direction to recast the gradation list published in June 1997 and to place

him over and above the respondent nos.4 and 5 therein. The said application

was allowed by the Tribunal vide judgment and order dated 27.4.2005

(Annexure-P/4) with a direction to consider the representation of Shri

Parsuram Sahu keeping in mind the letter issued by the Home Department

dated 3.2.1987 according to which, the seniority of the SIs (St) would be

determined after their entry into General wing after passing the Training 4

Course. The other O.A. No.23/2000 - Sudhir Chandra Ray v. State of

Orissa & Ors. was decided vide judgment and order dated 8.12.2005 placing

reliance upon the judgment in Parsuram Sahu's case and similar direction

was issued. Same remained the fate of OA No.203/2001 - Sushanta Kumar

Biswal & Ors. v. State of Orissa & Ors. filed by officers appointed in 1993

as SIs (g) as the said Application was also disposed of by the Tribunal

relying upon its earlier judgments in Parsuram Sahu and Sudhir Chandra

Ray's cases. Being aggrieved, Writ Petition No.624 of 2006 was filed by

SIs (St) in the High Court challenging the judgment and order in OA No.203

of 2001, and four other writ petitions against the judgment and order in OA

No.23 of 2000. All the said petitions have been disposed of by the High

Court by a common judgment and order impugned herein. Hence, these

appeals.

4. Shri P.P. Rao, Ld. Senior Counsel appearing for the appellants has

submitted that there could be no justification for the Tribunal/High Court to

place reliance upon the letters, one written by the Home Department dated

3.2.1987 and the other by Ministry of Law dated 14.2.1990 as the said letters

were merely an opinion of the Departments and could not be treated as being

Executive instructions. In fact, no executive instruction had ever been issued 5

taking into consideration the said letters. In absence of any statutory rules for

determining their inter-se seniority, the general principle of determination of

seniority i.e. to reckon the period from the initial appointment i.e.

continuous period/length of service should have been taken into

consideration. The long standing practice followed by the State Authorities

that SIs (St) would rank senior to SIs(g) could not be disturbed at such a

belated stage, as it had been given effect to all throughout this period. More

so, as the first part of the order passed by the Tribunal, namely, to prepare

the gradation list of SIs (St) and SIs(g) in accordance with the dates of

passing the course from the training college, has been set aside by the High

Court and has not been challenged by anybody, has attained finality and

therefore, the direction given against the present appellants regarding the

eligibility qua the seniority is liable to be quashed. The High Court erred in

not taking note of distinction between eligibility for promotion and seniority.

More so, the two Original Applications have been decided by the Tribunal

merely by placing reliance upon its earlier judgment in Parsuram Sahu

(supra) which could not have been entertained at such a belated stage.

Hence, the appeals deserve to be allowed.

6

5. On the contrary, Shri L.N. Rao, Ld. Senior Counsel appearing for the

SIs (St) has submitted that the High Court has issued direction only to give

effect to the statutory rules, particularly, Rule 650 of the Orissa Police

Manual Rules (hereinafter called `the Rules') which provides that eligibility

of Sub-Inspectors for promotion to the rank of Inspectors have to be

determined as per Rule 650(a)(ii) which provides for minimum 10 years

continuous service after passing of the training course. SIs(St) are

appointed in terms of Rule 683 read with annexure 42 to the Rules. Nature

of job of SIs(St) is entirely different from the duties of SIs(g). The SIs(St)

basically perform Secretarial duties; SIs(St) are required to go through the

training course and then appointed on probation as SIs(g). Rules also

require confirmation as SIs(g). Thus, it cannot be termed as in

continuation of their previous appointment as SIs(St). Period of service

rendered as SI(s) can be treated only as a qualifying service and cannot be

counted for the purpose of seniority. Therefore, no fault can be found with

the impugned judgment. The appeals are liable to be dismissed.

6. Shri Radhey Shyam Jena, Ld. Counsel appearing for the State has

fairly conceded that the rules for determining the inter-se seniority have not

yet been framed. Earlier SIs(St) had been treated senior to SIs(g) for a long 7

period but after receiving the opinion from the Ministry of Law, such a

practice has been abandoned. What the Tribunal and the High Court have

taken into consideration were merely opinions of the Government

Departments and not the executive instructions. The cases require to be

decided in correct perspective.

7. We have considered the rival submissions canvassed on behalf of the

parties and perused the record. The basic judgment involved herein is, in the

case of Parsuram Sahu by the Tribunal and it may be pertinent to mention

here that the said judgment had not been challenged by any person either

before the High Court or before this Court and thus attained finality.

Therefore, it becomes necessary for this Court to examine the correctness of

that judgment and effect thereof, as the other judgments have been delivered

by the Tribunal merely by placing reliance upon it. The admitted facts

involved therein reveal that one Pursuram Sahu SI (g) joined the Police

Services in 1968. He was promoted to the rank of Inspector in 1986 and to

the rank of D.S.P. in 1998. In his O.A. before the Tribunal, he impleaded

only two private persons, namely, Shri Bijaya Brata Kundu and Shri Paresh

Ch. Mohanty who had been working as Superintendents of Police in the year

2000. The said private respondents had been appointed as SIs (St) on 8

25.1.1966 and 23.2.1966 respectively. The said respondents did not enter

appearance nor contested the case. Therefore, questions do arise as to

whether in absence of any statutory rule for determining their seniority as

SIs, the Tribunal could disturb the uninterrupted practice in the State to place

SI(St) above SI(g) while preparing their inter se seniority and whether the

application could be entertained by the Tribunal at such a belated stage,

particularly, when promotions of the respondents therein to the posts of

Inspector, D.S.P. or Superintendent of Police had never been challenged.

8. The question of application of the doctrine of contemporanea

expositio has been considered by this Court taking into account the factual

matrix of the case. In K.P. Varghese Vs. Income-tax Officer, Ernakulam

& Anr. AIR 1981 SC 1922, this Court applied the rule of contemporanea

expositio as the Court found it a well established rule of interpretation of a

statute by reference to the exposition it has received from contemporary

authority. However, the Court added the words of caution that such a rule

must give way where the language of the statute is plain and unambiguous. 9

Similarly, in Collector of Central Excise, Bombay-I & Anr. Vs.

M/s. Parle Export (P) Ltd., AIR 1989 SC 644, this Court observed that the

words used in the provision should be understood in the same way in which

they have been understood in ordinary parlance in the area in which the law

is in force or by the people who ordinarily deal with them. In Indian Metals

and Ferro Alloys Ltd., Cuttack Vs. The Collector of Central Excise,

Bhubaneshwar, AIR 1991 SC 1028, the Court has applied the same rule of

interpretation by holding that contemporanea expositio by the

administrative authority is a very useful and relevant guide to the

interpretation of the expression used in a statutory instrument.

9. In N. Suresh Nathan & Ors. Vs. Union of India & Ors, AIR 1992

SC 564; and M.B. Joshi & Ors. Vs. Satish Kumar Pandey & Ors. AIR

1993 SC 267, this Court observed that construction in consonance with long-

standing practice prevailing in the concerned department is to be preferred.

10. In Desh Bandhu Gupta & Co. & Ors Vs. Delhi Stock Exchange

Association Ltd. AIR 1979 SC 1049; and State of Tamil Nadu vs. Mohi

Traders, AIR 1989 SC 1167, this Court observed that the principle of

contemporanea expositio, i.e. interpreting a document by reference to the 1

exposition it has received from Competent Authority can be invoked though

the same will not always be decisive of the question of construction. The

administrative construction, i.e. the contemporaneous construction placed by

administrative or executive officers responsible for execution of the

Act/Rules etc. generally should be clearly wrong before it is over-turned.

Such a construction commonly referred to as practical construction although

not controlling, is nevertheless entitled to considerable weight and is highly

persuasive. However, it may be disregarded for cogent reasons.

11. The executive interpretation placed by those who are charged with

executing the statute, though not binding, is nevertheless entitled to

considerable weight as highly persuasive. However, the application of the

doctrine in respect of modern Statutes has been doubted by this Court (vide

M/s. Punjab Traders vs. State of Punjab and Ors. AIR 1990 SC 2300 and

M/s. Oswal Agro Mills Ltd. vs. Collector of Central Excise AIR 1993 SC

2288.

12. In view of the above, one may reach the conclusion that

administrative interpretation may provide the guidelines for interpreting the

Rule or executive instruction and may be accepted unless it is found in 1

violation of the Rules itself. The Court may not be bound to accept the

mistaken construction of the statutes by those who had been dealing with the

working of the Statute.

In instant Appeals, this fact has been mentioned at several places by

the present appellants but has not been considered either by the Tribunal or

by the High Court. Shri Jena, Ld. Counsel for the State has denied the facts

submitting that after receiving the opinion of the Law Ministry as well as of

the Home Ministry, the practice was changed. In absence of any finding of

fact recorded by either of the Courts below, it is not safe to give due

weightage to this doctrine in the facts and circumstances of the case.

13. More so, the judgment of the Tribunal treating opinion of the Law

Ministry and Home Department as statutory rules/Executive instructions is

not worth acceptance. In Sant Ram v. State of Rajasthan AIR 1967 SC

1910, a Constitution Bench of this Court has held that statutory rules cannot

be amended by Executive instructions but "if the rules are silent" on any

particular point, Government can fill up the gaps by issuing executive

instructions, in conformity with the existing rules. Similar view has been

reiterated in Union of India v. H.R. Patankar & Ors. AIR 1984 SC 1587. 1

However, mere opinion given by various departments of the Government

cannot be termed as Executive instructions.

14. One must not loose sight that seniority and eligibility for promotion

are two different concepts altogether. Explaining the difference between the

two, this Court in R. Prabha Devi & Ors. vs. Government of India &

Ors. AIR 1988 SC 902 held as under :-

"15. The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority......When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post.

When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience."

1

15. Thus, in view of the above we are of the opinion that in absence of

any statutory rules, the executive instructions for fixing the inter se seniority

of two wings of the Sub-Inspectors could have been issued by the State

Government. Admittedly, no such executive instruction has ever been

issued. The letters issued by the Government Departments, being merely

opinion of the Departments could not be conferred status of the executive

instructions.

16. The question of entertaining the petition disputing the long standing

seniority filed at a belated stage is no more res integra. A Constitution

Bench of this Court, in Ramchandra Shanker Deodhar & Ors. v. State of

Maharashtra & Ors. AIR 1974 SC 259, considered the effect of delay in

challenging the promotion and seniority list and held that any claim for

seniority at a belated stage should be rejected inasmuch as it seeks to disturb

the vested rights of other persons regarding seniority, rank and promotion

which have accrued to them during the intervening period. A party should

approach the Court just after accrual of the cause of complaint. While

deciding the said case, this Court placed reliance upon its earlier judgments,

particularly in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898,

wherein it has been observed that the principle, on which the Court proceeds 1

in refusing relief to the petitioner on the ground of laches or delay, is that the

rights, which have accrued to others by reason of delay in filing the writ

petition should not be allowed to be disturbed unless there is a reasonable

explanation for delay. The Court further observed as under:-

"A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court."

17. This Court also placed reliance upon its earlier judgment of the

Constitution Bench in R.N. Bose v. Union of India & Ors. AIR 1970 SC

470, wherein it has been observed as under:-

"It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years."

18. In R.S. Makashi v. I.M. Menon & Ors. AIR 1982 SC 101, this Court

considered all aspects of limitation, delay and laches in filing the writ

petition in respect of inter se seniority of the employees. The Court referred

to its earlier judgment in State of Madhya Pradesh & Anr. v. Bhailal Bhai

etc. etc., AIR 1964 SC 1006, wherein it has been observed that the

maximum period fixed by the Legislature as the time within which the relief 1

by a suit in a Civil Court must be brought, may ordinarily be taken to be a

reasonable standard by which delay in seeking the remedy under Article 226

of the Constitution can be measured. The Court observed as under:-

"We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years..... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government resolution, should have been dismissed." (Emphasis added)

19. The issue of challenging the seniority list, which continued to be in

existence for a long time, was again considered by this Court in K.R.

Mudgal & Ors. v. R.P. Singh & Ors. AIR 1986 SC 2086. The Court held

as under:-

"A government servant who is appointed to any post ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity......... Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created 1

by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.... In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches."

(Emphasis added)

20. While deciding the case, this Court placed reliance upon its earlier

judgment in Malcom Lawrance Cecil D'Souza v. Union of India & Ors.

AIR 1975 SC 1269, wherein it had been observed as under:-

"Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public service is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in a seniority list after having been settled for once should not be liable to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."

(Emphasis added) 1

21. In B.S. Bajwa v. State of Punjab & Ors. AIR 1999 SC 1510, this

Court while deciding the similar issue re-iterated the same view, observing

as under:-

"It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition". (Emphasis added)

22. In Dayaram Asanand v. State of Maharashtra & Ors. AIR 1984

SC 850, while re-iterating the similar view this Court held that in absence of

satisfactory explanation for inordinate delay of 8-9 years in questioning

under Article 226 of the Constitution, the validity of the seniority and

promotion assigned to other employee could not be entertained.

23. In P.S. Sadasivaswamy v. State of Tamil Nadu AIR 1975 SC 2271,

this Court considered the case where the petition was filed after lapse of 14

years challenging the promotion. However, this Court held that aggrieved

person must approach the Court expeditiously for relief and it is not

permissible to put forward stale claim. The Court observed as under :- 1

"A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion."

24. The Court further observed that it was not that there was any period of

limitation for the Courts to exercise their powers under Article 226 nor was

it that there could never be a case where the Courts cannot interfere in a

matter after certain length of time. It would be a sound and wise exercise of

jurisdiction for the Courts to refuse to exercise their extra ordinary powers

under Article 226 in the case of persons who do not approach it

expeditiously for relief and who standby and allow things to happen and

then approach the Court to put forward stale claim and try to unsettle settled

matters.

25. A similar view has been re-iterated by this Court in Smt. Sudama

Devi vs. Commissioner & Ors. (1983) 2 SCC 1; State of U.P. vs. Raj

Bahadur Singh & Anr. (1998) 8 SCC 685; and Northern Indian Glass

Industries vs. Jaswant Singh & Ors. (2003) 1 SCC 335.

26. In Dinkar Anna Patil & Anr. vs. State of Maharashtra, AIR 1999

SC 152, this Court held that delay and laches in challenging the seniority is 1

always fatal, but in case the party satisfies the Court regarding delay, the

case may be considered.

27. In K.A. Abdul Majeed vs. State of Kerala & Ors. (2001) 6 SCC

292, this Court held that seniority assigned to any employee could not be

challenged after a lapse of seven years on the ground that his initial

appointment had been irregular, though even on merit it was found that

seniority of the petitioner therein had correctly been fixed.

28. It is settled law that fence-sitters cannot be allowed to raise the dispute

or challenge the validity of the order after its conclusion. No party can claim

the relief as a matter of right as one of the grounds for refusing relief is that

the person approaching the Court is guilty of delay and the laches. The

Court exercising public law jurisdiction does not encourage agitation of stale

claims where the right of third parties crystallises in the interregnum. (vide

Aflatoon & Ors. vs. Lt. Governor, Delhi & Ors. AIR 1974 SC 2077; State

of Mysore vs. V.K. Kangan & Ors., AIR 1975 SC 2190; Municipal

Council, Ahmednagar & Anr. vs Shah Hyder Beig & Ors., AIR 2000 SC

671; Inder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637; Shiv

Dass vs. Union of India & Ors., AIR 2007 SC 1330; Regional Manager, 2

A.P.SRTC vs. N. Satyanarayana & Ors. (2008) 1 SCC 210; and City

and Industrial Development Corporation vs. Dosu Aardeshir

Bhiwandiwala & Ors. (2009) 1 SCC 168).

29. Thus, in view of the above, the settled legal proposition that emerges

is that once the seniority had been fixed and it remains in existence for a

reasonable period, any challenge to the same should not be entertained. In

K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a

seniority list which remains in existence for 3 to 4 years unchallenged,

should not be disturbed. Thus, 3-4 years is a reasonable period for

challenging the seniority and in case someone agitates the issue of seniority

beyond this period, he has to explain the delay and laches in approaching the

adjudicatory forum, by furnishing satisfactory explanation.

30. The Tribunal ought to have dismissed the case of Parsuram Sahu

(supra) only on the ground of delay and the laches, as the applicant

approached the Tribunal at the verge of his retirement and after getting two

promotions while the other parties have got three promotions. In the said

case, the private respondents have not considered it proper to contest the

case because both of them were likely to superannuate just thereafter on 2

attaining the age of retirement. Undoubtedly, the said judgment and order

has not been challenged by anybody and it attained finality but that remained

the judgment in personem. More so, there is nothing on record to show as to

whether the said applicant Parsuram Sahu could ever get any relief from the

State Government. The O.A. filed by Shri Sudhir Chandra Ray, had similar

facts as in Pursuram Sahu's case. While deciding the said application the

Tribunal itself had taken note of the facts that promotions had been made 8-9

years ago prior to issuance of the combined gradation list in 1999. It is

evident from the impugned judgment that Shri Sudhir Chandra Ray joined as

SI(g) on 4.1.1973. He was promoted to the rank of Inspector with effect

from 12.3.1991. We are of the considered opinion that the said application

ought to have been rejected by the Tribunal only on the ground of delay and

laches. The High Court has also not dealt with this issue, however, it goes

to the root of the cause. Such an inordinate delay cannot be ignored

particularly when the issue of delay has been pressed in service before this

Court.

31. The appellants have specifically pleaded that a seniority list was

issued in 1979. Subsequently, another seniority list was issued in 1992. A

tentative seniority list was circulated in 1996, and after considering the 2

objections by the State Authorities, a final seniority list was issued in June

1997. Again the seniority list was circulated in 1999. Though there had

been dispute regarding issuance of the said seniority lists, however, the High

Court in its judgment has taken note of the seniority list of 1979.

Circulation of gradation list in June 1997 cannot be disputed/doubted for the

simple reason that in Pursuram Sahu's case only this gradation list was

under challenge. The applicants in OA No.203 of 2001 claimed to have

been appointed in 1993. Their names should have definitely been included

in the final gradation list circulated in June 1997. However, there is no

explanation by them as to how it could not be challenged before the Tribunal

and under what circumstances the gradation list issued in 1999 was

challenged in 2001. At the cost of repetition, it is stated that, if the seniority

list is to be challenged within 3-4 years of its issuance, we fail to understand

as to why even OA No.203/2001 could not be dismissed on the ground of

delay and laches, without entering into the merits of the case.

32. The issue before the High Court was regarding the principle of

seniority for preparation of a combined gradation list of SIs (St) and SIs(g).

However, the High Court failed to decide the said issue rather directed

preparation of a combined list in conformity with eligibility criterion. 2

33. The other original application filed in Sudhir Chandra Ray's case was

liable to be dismissed only on the ground of delay and laches and we dismiss

the same. The High Court has set aside the direction issued by the Tribunal

directing the State Authorities to prepare the gradation list of SI(St) and

SI(g) in accordance with the dates of passing out of the Sub-Inspector

training course. This part of the order has not been challenged by anybody

and thus, this part of the order has attained finality, therefore, the said part of

the order does not require any interference in either of these appeals. So far

as the appeals arising out of writ petition nos.1233/06, 2878/06, 3424/06 and

5637/06 are concerned, stand allowed to that extent and the remaining part

of the direction contained in paragraph 9 of the judgment stand set aside.

34. So far as the appeal arising out of writ petition no.426/06 which has

arisen from the judgment and order of the Tribunal in OA No.203/2001 is

concerned, the relevant facts thereof, have not been taken into consideration

either by the Tribunal or by the High Court and the matter has been decided

making reference to the facts of other connected cases. Thus, in view of the

above, we set aside the judgment and order of the High Court in Writ

Petition No.426/06 only to the extent of the last part of the order, namely, "if 2

it is found that promotion of a Sub-Inspector was not considered before

consideration of Sub-Inspector placed below him in the seniority list, his

promotion shall be considered with effect from the date of promotion of his

junior in case he had fulfilled minimum eligibility criteria for promotion at

the time of consideration of his junior". The first part of the order contained

in paragraph 9 as already explained hereinabove has attained finality, thus,

does not require any interference. The High Court is requested to decide the

case to that extent only taking into consideration the law as explained

hereinabove including the issue of delay and the facts involved in that case

expeditiously.

35. The appeals stand disposed of accordingly. No cost.

..................................J. (TARUN CHATTERJEE)

..............................

.........J. (Dr. B.S. CHAUHAN) New Delhi, November 12, 2009 2