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

Citation: [2000] 3 S.C.R. 764

Court: Supreme Court of India

Bench: S. SAGHIR AHMAD, R.P. SETHI

Judgment text

STATE OF BIHAR AND ORS. ETC. v. KAMESHWAR PRASAD SINGH AND ANR. ETC. ETC. APRIL 27, 2000 [S. SAGHIR AHMAD AND RP. SETIIl, JJ. ] Service Law : Seniority-Period of officiation-Reckoning of-Sub-Inspector of Police-Promoted to the post ofInspector ofPolice on officiating basis-Order 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 consideredfor seniority-Thus, High Court erred in granting seniority and promotion-However, in the interest ofjustice promotions made not disturbed- Bihar Police Manual Rules-Rules 660(C) and 649.

Constitution ofIndia, 1950: Article 14-Equality-Conceptof-Seniority-Claim-High Court by granting seniority committing illegality or irregularity-Another employee claiming similar relief-Validity of-Held, equality ;: is a positive concept and cannot be enforced in a negative manner-Benefits )extended to a person in an illegal or irregular manner cannot be claimed by others on the ground ofequality. Practice and Procedure : - Parties-Non-joinderofparties-Effect of-Seniority-Claimfor-Persons likely to be affected by the reliefclaimed, not impleaded as parties-Held, the petition shouldbe nonnally dismissed unless there existed specific reasons for such non-impleadment. ~ Plea-Newplea-Raising of-Claimfor seniority-Grant of-LPAsfiled ~ raising specific plea regarding facts and law-Dismissed by High Court only on the ground of limitation-Held, cannot be accepted that plea regarding detennination ofseniority is raisedfor the first time before the Supreme Court. ~4 .

Limitation Act, 1963 : Delay in filing appeal-Condonation of-Sufficiency ofcause shown- STATE v. K. P. SINGH 765 Held, power to condone delay has been conferred on the courts to enable them ·~ to do substantial justice which cannot be defeated by technicalities-In the instant case, dismissal ofappeal 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 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 seniority in the post of Inspector from the date of his officiating promotions, 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 Inspector on the ground that his junior viz. respondent 'B' was promoted. The said writ petition was also allowed by High Court. Aggrieved, appellants tiled Letters Patent Appeals along with application for condonation of delay. Division Bench of High Court dismissed the said LPAs only on the ground oflimitation without deciding the other pleas raised. Hence the ~ ~ present appeals. 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] ~ 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 ofInspector 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 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 ofMaharashtra & Ors. , (1990] 2 SCR 900, followed.

State ofWest 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 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 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 beingin 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. [784-E-G] ~ 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 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 wi:_it petition filed in the High Court. Thus, in view of the finding that the judgment of the High Courtin 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] 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. , [1997) 1 SCC 35 and State ofHaryana & 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 that High Court had dismissed the LPAs only on the ground of limitation without deciding the other pleas raised by the appellants.

But when specific 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] 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 Courtcan mould the relief to safeguard the interests of a person wherever required. For doing complete justice between the 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 setting aside the judgments of the High Court, promotions of respondent 'B' made from time to time is not disturbed. However, judgments passedin his favour cannot be permitted to be made a basis for conferment of similar rights upon other persons. [789-E-H] 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, 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. 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 ofHaryana v. Chandra Mani & Ors. , [1996) 3 SCC 132; N. Balakrishnan v. M. Krishnamurlhy, [1998) 7 SCC 123, relied on. 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 ofIndia Insurance Co. Ltd. v. Nirmala Dev~ [1979) 4 SCC 365; Lala Mata Din v. A. Naryanan, [1969] 2 SCC 770; State ofKerala 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 Coop. Land Owning Society Ltd. v. Union ofIndia, [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 ofPunjab, [1995] 6 SCC 614, referred to. ~ ..... 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 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. WITH Civil Appeal No. 3007 of 2000. From the Judgment and Order dated 22. 3. 96 of the Patna High Court in L. P. A. No. 1018 of 1995. P. P. Rao, P. S. .

Mishra, Anil Kumar Jha, Ashok Kumar Tiwari, Vikas 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 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 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 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 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 ofInspector 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 )- 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 ofcontempt. .... 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 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. 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 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 ~ 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 Prasad Singh a number of senior officers are stated to have already superseded for no fault of theirs. Ifpromotions 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. 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 henefits. 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 nameeof Brij Bihari Prasad Singh in the cadre ofSub 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 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 recommendations 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 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 • 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 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 ofthe learned Single Judge was dismissed on the ground ofunexplained delay 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 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 · 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 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 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.. 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 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 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 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 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 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 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 ·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 ofparties 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 affect the interests of any senior officer.

Power to condone the delay in approaching the court has been conferred 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 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 ofcourts. It was further observed that a liberal approach is adopted on principle as it is realised that: "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 ofjustice being defeated.

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 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 ofsubstantial justice deserves to be preferred for the. other side cannot claim to have vested right in injustice being 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. 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 Insurance·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 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 ofIndia, [1991] 1SCC174, BinodBiharSingh v. Union ofIndia [1993] 1 SCC 572, Shakambari & Co. v.

Union ofIndia, [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 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 same treatment and the law is ad. ministered in an even-banded (iv) Citation regarding high standard ofinvestigation, detection and control of crime and intelligence work. (v) Should have ability for shouldering higher responsibilities 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 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 theyjoin their place ofposting noted against each. They will not get the advantage of the previous contained in GOM VIII 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..... " 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 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 Superintendent 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 ofInspector on adhoc basis with effect from 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. 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 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 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 ofpermanent 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 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 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 )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 ofofficiation so many police officers will be superseded. " 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 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 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 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 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 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 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 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. (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 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 '" 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 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.