Union Of India vs Chaman Rana

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).2763 OF 2018 (arising out of SLP(C) No.1118 of 2018)

UNION OF INDIA AND OTHERS ….APPELLANT(S) VERSUS CHAMAN RANA ….RESPONDENT(S)

WITH CIVIL APPEAL NO(s).2764 OF 2018 (arising out of SLP(C) No.1123 of 2018)

UNION OF INDIA AND OTHERS ….APPELLANT(S) VERSUS GULSHAN KUMAR SHARMA ….RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

Signature Not Verified Digitally signed by BALA PARVATHI Date: 2018.03.13 16:01:15 IST

2. These two appeals arise from a common order dated Reason:

05.05.2017, directing retrospective consideration for

1 promotion of the respondents to the post of Second­in­

Command and Commandant respectively, in the Border

Security Force (BSF), from the date that their juniors had been

promoted, along with all consequential benefits.

3. The respondents in the two writ petitions were

superseded in the years 1996 and 2000, respectively. Both of

them were subsequently promoted on 28.11.1997 and

16.06.2003 as Second­in­Command and Commandant

respectively. Subsequently, both of them submitted several

representations for promotion from the date of supersession.

Orders rejecting the representations, along with reasons, were

duly communicated to them more than once. After the

pronouncement in Sukhdev Singh vs. Union of India &

ors., (2013) 9 SCC 566 affirming Dev Dutt vs. Union of India

& ors., (2008) 8 SCC 725, separate writ petitions were filed

by them on 25.09.2016. The common plea taken was that the

entry ‘good’ in their annual confidential reports (ACRs) for the

relevant years was an adverse remark in view of the

2 benchmark of ‘very good’. Since the adverse entry had not

been communicated to them, it could not be taken into

consideration, requiring reconsideration for promotion from

the date of supersession.

4. Learned counsel for the appellants submitted that the

claims of the respondents were highly belated and stale. The

writ petitions ought to have been dismissed on the ground of

delay and laches. Specific objection had been taken in the

counter affidavit, including the cascading effect that it would

have had upon those promoted earlier to the respondents, and

which would lead to administrative chaos. Mere filing of

representations or a subsequent judgement, could not be

sufficient justification to entertain such belated claims, dehors

the facts of a case. The High Court ought not to have given

directions to consider their candidature with retrospective

effect.

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5. Learned counsel for the respondents submitted that

enunciation of law by this Court will always have to be given

retrospective effect, unless it is made prospective specifically.

The grading ‘good’ in the facts of the case was adverse as the

benchmark for promotion was ‘very good’. In view of the law

laid down in Dev Dutt (supra) as affirmed in Sukhdev Singh

(supra), it was mandatory for the appellants to have

communicated such adverse remarks to the respondents. In

absence of such communication, these remarks could not

have been considered to deny promotions. The respondents

were genuinely and bonafide pursuing their grievances before

the authorities themselves, hoping that they would see reason,

and only when they realised that relief would not be

forthcoming otherwise, they approached the High Court

ultimately.

6. We have considered the submissions on behalf of the

parties. The only question for consideration is the

applicability of the law as declared in Dev Dutt (supra) and

4 affirmed in Sukhdev Singh (supra) to the respondents in the

facts and circumstances of the present case.

7. The benchmark for promotion to the posts in question

under the BSF (Seniority, Promotion and Superannuation of

Officers) Rules of 1978, as prescribed in paramilitary

Promotion DO letter dated 25.11.1988 was modified on

08.05.1990 from ‘Good’ to ‘Very Good’. The respondent

Chaman Rana, a Deputy Commandant was considered for

promotion to the rank of Second­in­Command at the

departmental promotion committee (DPC) meeting held on

13.09.1996 but could not make the grade in view of the

criteria prescribed in DO letter dated 08.05.1990. The

respondent represented on 20.02.1997 against his

supersession. An order of rejection with reasons was

communicated to him on 25.03.1997. The cause of action

had, therefore, accrued to seek relief before a court of law.

Nonetheless a repeat representation was made on 31.07.1997,

and a reasoned rejection was again communicated on

5 07.05.1998. In the meantime, the respondent was empanelled

to be considered for promotion to the rank of Second­in­

Command by the DPC held in the year 1997, and he was

promoted as such on 28.11.1997. A cause of action again

accrued to the respondent for approaching the Court for relief

but he again represented on 30.06.1998, followed by further

representations on 14.09.1998, 22.08.2000, 22.08.2006. A

fresh reasoned order of rejection was again communicated on

16.05.2007. Repeat representations followed on 28.08.2012,

07.11.2015 and 20.11.2015 after which the writ petition came

to be instituted.

8. Likewise, the respondent Gulshan Kumar Sharma was

considered for promotion as Commandant in the years 2000­

2001 and 2001­2002 by the DPC but was superseded as he

failed to secure the benchmark. He represented on

25.10.2001 and was informed on 09.01.2002 that he had

failed to secure the benchmark. The cause of action to

approach the Court for grant of relief had accrued to the

6 respondent but he again represented on 18.03.2002. An

order of rejection along with reasons was again communicated

to him on 01.09.2004. After he was promoted as

Commandant on 16.06.2003, instead of approaching the

Court, he again represented on 04.05.2005, followed by

another representation on 08.01.2007. A reasoned order of

rejection was again communicated to him on 17.04.2008.

This was followed by further representation on 11.08.2009

which was again rejected on 02.09.2009 allegedly

communicated on 01.01.2016. A further representation dated

03.08.2015 was also rejected on 27.11.2015. The writ

petition then came to be instituted.

9. Manifestly, the cause of action first arose to the

respondents on the date of initial supersession and again on

the date when rejection of their representation was

communicated to them, or within reasonable time thereafter.

Even if the plea based on Dev Dutt (supra) be considered, the

cause of action based thereon accrued on 12.05.2008. There

7 has to be a difference between a cause of action and what is

perceived as materials in support of the cause of action. In

service matters, especially with regard to promotion, there is

always an urgency. The aggrieved must approach the Court

at the earliest opportunity, or within a reasonable time

thereafter as third party rights accrue in the meantime to

those who are subsequently promoted. Such persons

continue to work on the promotional post, ensconced in their

belief of the protection available to them in service with regard

to seniority. Any belated interference with the same is bound

to have adverse effect on those already promoted affecting

their morale in service also. Additionally, any directions at a

belated stage to consider others for promotion with

retrospective effect, after considerable time is bound to have

serious administrative implications apart from the financial

burden on the government that would follow by such orders of

promotion.

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10. As far back as in P.S. Sadasivaswamy vs. The State

of Tamil Nadu, (1975) 1 SCC 152, considering a claim for

promotion belated by 14 years, this Court had observed that a

period of six months or at the utmost a year would be

reasonable time to approach a court against denial of

promotion and that it would be a sound and wise exercise of

discretion not to entertain such claims by persons who tried to

unsettle the settled matters, which only clog the work of the

court impeding it in considering genuine grievances within

time in the following words :­

“2….. A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner’s petition should, therefore, have been dismissed 9 in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant’s petition as well as the appeal.”

11. Mere repeated filing of representations could not be

sufficient explanation for delay in approaching the Court for

grant of relief, was considered in Gandhinagar Motor

Transport Society vs. State of Bombay, A.I.R. 1954 Bombay

202, by Chief Justice Chagla, observing as follows :­

“(2)…… Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extra­legal or extra­judicial. Once the final decision of government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner…”

12. The appellant, in its counter affidavit before the High

Court, had specifically taken the objection that the claim was

highly belated, and that any direction for a retrospective 10 consideration would have a destabilising effect in unsettling

the settled position which would lead to complete chaos apart

from other administrative consequences. The High Court

failed to consider the objection. In Union of India vs. M.K.

Sarkar, (2010) 2 SCC 59, this Court observed as follows:­

“16. A court or tribunal, before directing ‘consideration’ of a claim or representation should examine whether the claim or representation is with reference to a ‘live’ issue or whether it is with reference to a ‘dead’ or ‘stale’ issue. If it is with reference to a ‘dead’ or ‘stale’ issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration….”

13. In Dev Dutt (supra), the DPC was held on 16.12.1994.

The appellant therein, aggrieved by his supersession moved

the High Court with utmost expedition leading to the

pronouncement by the Single Judge on 21.08.2001 and by the

Division Bench on 26.11.2001. The appeal was instituted

before this Court in the year 2002. If that were not sufficient

to distinguish the case of the respondents, reference may also

be made to the observations in paragraph 36 as follows: 11

“36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation.”

14. The High Court erred in placing absolute reliance on Dev

Dutt (supra) and Sukhdev (supra) without noticing the fact

situation of the respondents. In Union of India and

another vs. Major Bahadur Singh, (2006) (1) SCC 368, it

was observed:­

“9. The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is

12 meant to explain and not to define. Judges interpret statutes, they do not interpret judgments….”

15. A subsequent pronouncement by this Court could not

enthuse a fresh lease of life, or furnish a fresh cause of action

to what was otherwise clearly a dead and stale claim. In

State of Uttaranchal vs. Shiv Charan Singh Bhandari,

(2013) 12 SCC 179, it was observed that :­

“29…. Not for nothing, has it been said that everything may stop but not the time, for we are all slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time.”

16. The observations with regard to the modus operandi of

the representation syndrome to revive what are clearly dead

and stale claims as discussed in C. Jacob vs. Director of

Geology and Mining, (2008) 10 SCC 115, and the caution to

be exercised by the Court are also considered apposite in the

facts of the present case.

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17. In the facts and circumstances of the present case, any

direction to consider retrospective promotion of the

respondents at such a belated passage of time of over 17 to 20

years, would virtually bring a tsunami in the service resulting

in administrative chaos quite apart from the financial

implications for the government. The order of the High Court

is therefore held to be unsustainable and is set aside.

18. Both the appeals are allowed for the aforesaid reasons.

………………………………….J. (Arun Mishra)

.……….………………………..J. (Navin Sinha) New Delhi, March 12, 2018.

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ITEM NO.1502 COURT NO.10 SECTION IV-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

C.A.No.2763/2018 @ SLP(C)No..1118/2018

(Arising out of impugned final judgment and order dated 05-05- 2017 in CWP No.20322/2016 passed by the High Court Of Punjab & Haryana At Chandigarh)

UNION OF INDIA & ORS. Petitioner(s)

VERSUS

CHAMAN RANA Respondent(s)

WITH C.A.No.2764/2018 @ SLP(C)No.1123/2018 (IV-B)

Date : 12-03-2018 These petitions were called on for pronouncement of judgment today.

For Petitioner(s) Mr. B.V. Balaram Das,AOR

For Respondent(s) Mr. Deepak Goel,AOR

Hon'ble Mr. Justice Navin Sinha pronounced the Reportable judgment of the Bench comprising Hon'ble Mr. Justice Arun Mishra and His Lordship.

Leave granted.

The appeals are allowed in terms of the signed Reportable judgment.

Pending application, if any, stands disposed of.

(Sarita Purohit) (Suman Jain) Court Master Branch Officer

(Signed Reportable judgment is placed on the file)

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