SHIBA SHANKAR MOHAPATRA & ORS. v. STATE OF ORISSA & ORS

Citation: [2009] 15 S.C.R. 866

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, B.S. CHAUHAN

Case summary

SHIBA SHANKAR MOHAPATRA & ORS. v. STATE OF ORISSA & ORS.pdf

Judgment text

[2009] 15 (ADDL. ) S. C. R. 866 SHIBA SHANKAR MOHAPATRA & ORS. v. STATE OF ORISSA & ORS. • (Civil Appeal Nos. 7537-7541 of 2009) NOVEMBER 12, 2009 [TARUN CHATTERJEE AND DR. 8. 5. CHAUHAN, JJ. ] Service Law- Seniority- lnter-se seniority-Between Sub- r i Inspectors (General) Sl(g) and Sub-Inspectors (Stenographers) Sl(St)-.

Sl(g) challenging seniOrity of Sl(St) over them - Challenge made after 8-9 years from the date of appointment - Tribunal relying on ·a judgment passed by it in a similar case - The judgment relied on was passed on the basis of letters from Government departments - Writ petition before High · Court- Partly allowed - On appeal, held: Challenge barred by delayllaches - Reliance upon the said judgment was misconceived - The judgment to be treated as judgment in personem - The said case filed at a belated stage - In absence · of Rules or Executive Instructions, Tribunal could not have determined the inter-:se seniority - Letters cannot be treated as executive instructions and hence cannot be relied upon Delay/Laches - Delay in challenging seniority - Entertainability of the challenge - Held: Seniority can be challenged within a reasonable period - Challenge beyond such period needs to be explained - Court exercising public law jurisdiction does not encourage agitation of stale claims, ..

where right of third party is affected. Al, ' lnterpreta1ion of Statutes - Interpretation of Rules and Executive Instructions - Administrative interpretation thereof ~ Provides guidelines for interpreting them - They may be I ·. accepted, if not violative of the Rules - However, the court is ; not bound to, accept the mistaken construction of the statute. .. Doctrines/Principles - Doctrine of 'Contemporanea L. -; expositio'- Applicability of f -..... *'.. ~- In a case (Parasu. ram's case) involving inter-se seniority .. ··~ OF ORISSA & ORS. between the cadre of Sub-Inspectors (General) [Sl(g)] and Sub-Inspectors (Stenographers) [Sl(St)], Administrative Tribunal directed the department to consider seniority of I the applicant-Sl(g), over two officers-Sl(St) keeping in view t the letter issued by the Home Department and the law Deptt. of the State, according to which, seniority of the 8 Sl(St) would be determined after their entry into General Wing after passing the Training Course.

Appellants-Sl(g) in the present cases, filed applications before Administrative Tribunal. The applications were disposed of, relying on the decision in Parsuram's case. Aggrieved by the judgments passed by the Tribunal, Sl(St) filed writ petitions. High Court partly' allowed the writ petitions. It directed to reconsider the. case of promotion of Sl(g) to the post of Inspectors, and if· it was found that they had been placed below Sl(St), they · should be granted promotion (if they fulfilled minimum eligibility criteria) from the date their counterparts in the other wing had been promoted. However, directions issued by the Tribunal to prepare the gradation list of Sl(St) and Sl(g) in accordance with the dates of passing out of the Sub-Inspector training course, was quashed. Hence . the present appeals.

· Appellants contended that courts below could not have relied on the letters written by Home Department and by Ministry of Law, as they were merely opinions and r could not be treated as Executive Instructions; that in absence of statutory rules for determining the inter-se seniority, long-standing practice for determination of such seniority, could not be disturbed at a belated stage, while . the Sl(St) had further been given two promotions and that ' was not challenged; and that High Court erred in not taking into consideration the distinction between eligibility for promotion and seniority. Disposing of the appeals, the Court HELD: 1. 1. Seniority and eligibility for promotion are two different concepts altogether, In absence of any · statutory rules, the executive instructions for fixing the H: . . inter se seniorify 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 issue~ by the Government Departments, being \ merely opinion of the Departments could not be conferred ·. f3\ . · ~~~~~~~~ho:Ar~~:~ti~~:·~~·~tructions.. ~~ara~ ·~~~·~nd 1. ~~ . c~r9~ 1. 2. The juclgm~nt of the Tribunal treating opinion of the Law Ministry and Home Department as statutory Rules/ Executive Instructions is not worth acceptance. Mere opinion given by various departments of the Government cannot be termed as Executive instructions. [Para 13] [878- F-H] Sant Ram vs. State of Rajasthan AIR 1967 SC 1910; Union of. India vs. H. R. Patankar and Ors. AIR 1984 SC 1587, · relied 011. ::. '' . 0 · 2. 1. Once:th~ seniority had been fixed and it"remains· in existenc. e for,:a reasonable period, any challenge to the same·should not be entertained. 3-4 years is a reasonable period for challenging.

the seniority and in case someone· agitates the issue ofseniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation. [Para. 29) [884-E-F] 2. 2. '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 laches. The Court exe:rcising public law jurisdiction does not encourage agitation of stale claims where the right of third 'parties crystallises in the interr~gnum. [Para 28] [884-B] 2. 3. The Tribunal ought to have dismissed the case of Parsuram Sahu only on the ground of delay ancl laches, as the applicant approached the Tribunal at the verge of his retirement and after getting two promotions while the other partie~ have got three promotions. In the said case, the ORISSA & ORS.

private respondents have not considered it proper to ~ ,r contest the case because both of them were likely to superannuate just thereafter on attaining the age of retirement. 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 could ever get any relief from the State Government. [Para 30) [884-G-H; 885-A-B] \ 't ' observed that the principle of contemporanea expositio, i. e. interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the 1 ~ 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 executiof. 1 of the Act/Rules etc. generally should l 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 Mis. Punjab Traders vs. State of Punjab and Ors. AIR 1990 SC 2300 and Mis. Oswal Agro Mills Ltd. vs. Collecto:- of Central Excise AlR 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 uniess it is found in violation of the Rules itself.

The Court may not be bound to accept the mistaken constructjon of the statutes by those who had been dealing with the working of ... the Statute. In instant Appeals, this fact has been me11tioned 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 ... ( 1" of the Law Ministry and Home Department as statutory rules/ Executive instructions is not worth acceptance. In Sant R'am vs.

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. s Patankar & Ors. AIR 1984 SC 1587. However, mere opinion given by various departments of the Government cannot be termed as Executive instructions. ORISSA & ORS. [DR. B. S. CHAUHAN, J. ] 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 ofIndia & Ors. Al R 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 t 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.. " 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 conferrea 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 de'lay 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 in refusing relief to the petitioner on the ground of!

aches or delay, is that the rights, which have accrued to others by reason of delay ,in filing the writpetition should not be allowed + to be disturbed unless there is a reasonable explanation for ... delay. The Court further ~bserved 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 earlierjudgment of the Constitution Bench inR. N. Bose v. Union of India & . Ors. ~ -4 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 vs. l. M.

Menon & Ors, AIR 1982 SC 101, this Court considered all aspects of limitation, delay and _[ I laches in filing th~ writ petition in respect of inter se seniority of the employees. The Court referred to its earlierjudgment in State of Madhya Pradesh & Anr. vs. Bhailal 8hai etc. etc. , AIR 1964 OF ORISSA & ORS. [DR. B. S. CHAUHAN, J. ] SC 1006, wherein it has been observed that the maximum period ), ... . ; fixed by the Legislature as the time within which the relief 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 ofthe Constitu~ion 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 I challenge against the seniority principles· laid down in the • Government Resolution of 196. We would accordingly hold that the challenge raised by the petitioners againstthe -t, + seniority principles laid down in the Government Resoh,Jtion --of March 2, 1968 ought to have been rejected by the High Court on the ground ofdelay 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 co. ntinued to be. in existence for a long time, wa$ again considered by this Court in K. R. Mudgal & Ors. v. R. P.

Singh & i ,.. Ors. AIR 1986 SC 2086. The Court held as under:- "A government servant who is appointed to any post --t ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached l 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 by writ petitions filed after l 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 _)-t. -, 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 earlierjudgment in Malcom Lawrance Cecil D'Souza v. Union of/ndia & 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 ofmany 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 giv~n a quietus after lapse of some time. " (Emphasis added) 21. In B. S. Bajwa vs. State ofPunjab & 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 qot justifiable: There ' was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference I under Article 226 and to reject the writ petition". (Emphasis added) I 22. In Dayaram Asanand vs. State of Maharashtra. & Ors. OF ORISSA & ORS. [DR. S. S. CHAUHAN, J. ] AIR 1984 SC 850, while re-iterating the similar view this Court ,..

~ held that in absence of satisfactory explanation for inordina~e 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 vs. 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 promotioi However, this Court held that aggrieved person must approac J the Court expeditiously for relief and it is not permissible to put forward stale claim. The Court observed as under:- "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 toe Court to put forward stale claim arict 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 l of U. P:vs. Raj Bahadur Singh & Anr. (1998) 8 SCC 685; and Northern Indian Glass Industries vs. Jaswant Singh & Ors. (2003) 1 sec 335. 2'6. 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 always fatal, but in case the party satisfies the Court regarding delay, the case may be considered.. 27. In KA. Abdul Majeed vs. State ofKera/a & 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 Af/atoon & 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; lnder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637; Shiv Dass vs. Union of India & Ors. , AIR 2007 SC 1330; Regional Manager, A. P. SRTC vs. N. Satyanarayana & Ors. (2008) 1SCC210; and City and Industrial Development Corporation vs. Dosu \ Aardeshir Bhiwandiwala & Ors. (2009) 1 S~C 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 KR.

Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list whfch 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 perio<;i, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing J 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 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. OF ORISSA & ORS. [DR. S. S. CHAUHAN, J. ] More so, there is nothing on record to show as to whether the said applicant Parsuram Sahu could ever get any relief from the ,,. 2'- 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 Sl(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 th·e 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 hefore this Court. 31. The appellants have specifically pleaded that a seniority list was issued in 1979. Subsequently, another seniority list wμs issued in 1992. A tentative seniority list was circulated in 1996, .. _ and after considering the 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 l 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 2 combined gradation list \= Jr- ) of Sis (St) and Sls(g). However, the High Court failed to decide the said issue rather directed preparation of a combined list in ~.. conformity with eligibility criterion. 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 l? Y the Tribunal directing the State Authorities to prepare the gradation list of Sl(St) and Sl(g) in accordance with the dates of passing out of the Sub-Inspector training cours_e. 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 r. - 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 abov~. 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 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 fo·r promotion at the time of consideration of his junior". The first part of the order -:0ntained 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 j issue of delay and the facts involved in that case expeditiously. 35. The appeals stand disposed of accordingly. No cost. K. K. T. Appeals disposed of.