PRABHJOT SINGH MAND & ORS. v.

BHAGWANT SINGH & ORS. (Civil Appeal No. 6253 of 2008)

JULY 29, 2009 [S.B. Sinha and Cyriac Joseph, JJ.]

2009 (12) SCR 143 The Judgment of the Court was delivered by

S.B. SINHA, J. 1. This appeal is directed against an interim  order dated 25th March, 2008 passed by a learned single judge of  

the Punjab & Haryana High Court whereby and whereunder while  

issuing notice of motion, the reversion of the first respondent was  

stayed.  

2. The matter has a chequered career. The dispute involved in  

the  present  appeals  revolves  round  the  seniority  between  the  

direct recruits and the promotees. Indisputably, the conditions of  

service of the employees hereto are governed by the Punjab Civil  

Services (Executive Branch) Rules, 1976. It repealed and replaced  

the Rules framed in the year 1930. By reason of 1930 Rules, 68%  

slots were fixed in the roster for direct recruits. Rule 18 of 1976  

Rules, however, provided for 50% of the slots to be filled by direct  

recruits.  

3.  The  State  sent  requisition  to  the  Punjab  Public  Service  

Commission for filling up the vacancies of 48 officers; 24 by direct  

recruitment  through  examination  and  24  by  nominating  officers  

from  the  existing  services  to  Punjab  Civil  Services  (PCS).  

Advertisements  were  issued  by  the  State  of  Punjab  for  direct  

recruitment to the PCS.

4. However, the said requisition was modified in the year 1982  

whereby the number of officers to be selected was raised to 80  

wherefor a revised advertisement was also issued. The Promotee  

Officers were brought into the PCS in the year 1984. Appellants,  

however, were appointed in the year 1986 by direct  recruitment  

with effect from 1985. Seniority list was finalized in 1993 in respect  

of the officers appointed to PCS from 1976-1985 wherein the direct  

recruits  who  joined  in  1986  were  not  included.  Seniority  list  in  

respect  of  officers  directly recruited and appointed in  1986 was  

finalized in 1994 and they were placed below the last officer in the  

seniority list of 1993.  

5. Arvinder Singh Bains, the appellant no.3 herein, along with  

one Dipinder Singh filed a writ petition (marked as Writ Petition No.  

16516  of  1995)  before  the  Punjab  &  Haryana  High  Court  

questioning the correctness of the said 1994 seniority list. The said  

writ  petition  was  dismissed.  An  intra-court  appeal  preferred  

thereagainst was also dismissed by an order dated 12.12.2000.  

6. A Special Leave Petition was filed thereagainst before this  

Court on which leave was granted by an order dated 3.9.2001 and  

the appeal was numbered as Civil Appeal No. 6373 of 2001. An  

interim order was passed to the effect that any action taken would  

be subject to the outcome of the appeal.  

7. An interlocutory application, however, was filed on or about  

12.1.2006 marked as I.A. No. 2 of 2006 inter alia praying that no  

promotion be made to the Indian Administrative Services (I.A.S.)  

cadre from the cadre of P.C.S. which was dismissed by an order  

dated 12.01.2006 with the following observations:

“In view of the fact that the order of this Court  dated 3rd of  

September 2001 granting leave unambiguously states that any  

action taken will be subject to the outcome of the appeal, we  

do not find that a case for modification thereof is made out.”

8. The said Civil Appeal was allowed by this Court by reason of  

judgment and order dated 24.5.2006 [since reported in (2006) 6  

SCC 673 (Arvinder Singh Bains vs. State of Punjab & Ors.)], inter  

alia opining:

“37.  The appellant  is  not  seeking  any antedated promotion.  

The case of the appellant is that the inter se seniority of 80  

officers (40 direct recruits + 40 promotees) should be fixed by  

applying roster provided for in Rule 18 of the PCS (EB) Rules,  

1976 by reading Rules 18 and 21 together.”

9.  In  arriving  at  the  said  finding,  this  Court  took  into  

consideration Rules 7, 8, 18 and 21 of the 1976 Rules.

10. Rule 7 lays down that the appointment to the service shall  

be made from amongst  the  accepted candidates whose names  

have  been  duly  entered  in  the  prescribed  Registers.  Rule  8  

provides for various Registers of accepted candidates, which are  

in the following terms:

A-I: Tahsildars

A-II: Ministerial employees of the State Government (Classes  

II and III)

A-III:ETOs/BODs/DDPOs

B: Direct recruits

C: Other government servants

Rules 18 and 21 of the 1976 Rules read thus:

“18. Appointment of accepted candidates to the service.—The  

Government  shall  make  appointments  to  the  service  in  

pursuance of Rule 7 from amongst the candidates entered in  

the various Registers in a slab of 100 vacancies as follows:

(i) the  first  vacancy  and  thereafter  every  alternative  

vacancy  shall  be  filled  from  amongst  candidates  borne  on  

Register ‘B’;

(ii) the 2nd, 8th, 14th, 20th, 26th, 32nd, 38th, 44th, 50th,  

56th,  62nd,  68th,  74th,  80th,  86th,  92nd,  96th  and  100th  

vacancies shall be filled from amongst the candidates borne on  

Register A-I;

(iii) the 4th, 10th, 16th, 22nd, 28th, 34th, 40th, 46th, 52nd,  

58th, 64th, 70th, 76th, 82nd, 88th and 98th vacancies shall be  

filled from amongst candidates borne on Register A-II;

(iv) the  12th,  30th,  42nd,  54th,  66th,  78th  and  90th  

vacancies shall be filled from amongst the Excise and Taxation  

Officers accepted as candidates on Register A-III;

(v) the 18th, 36th, 60th and 84th vacancies shall be filled  

from  amongst  the  District  Development  and  Panchayat  

Officers  or  Block  Development  and  Panchayat  Officers  

accepted as candidates on Register A-III; and

(vi) the 6th, 24th, 48th, 72nd and 94th vacancies shall be  

filled from amongst the candidates on Register ‘C’:”

21. Seniority of the members of the service.—The seniority of  

officers  appointed  to  the  service  shall  be  determined  in  

accordance with the order of their appointment to the service;  

provided that—

(a)  if  the  order  of  appointment  of  any  candidate  is  

cancelled under the provisions of Rule 20 and such candidate  

is  subsequently  appointed  to  the  service,  the  order  of  

appointment for the purpose of this rule shall be determined by  

the date of such subsequent appointment;

(b) if any officer appointed to the service fails to qualify  

himself  for  substantive  permanent  appointment  within  the  

prescribed period of probation, the Government may determine  

whether the date of his appointment for the purpose of this rule  

shall  be postponed by a period not exceeding the period by  

which  such  officer’s  substantive  permanent  appointment  is  

delayed beyond the prescribed period of probation;

(c) the persons appointed as a result of earlier selection  

from a Register shall be senior to those appointed as a result  

of subsequent selection from the same Register.”

11. It was held that appointment is made in terms of Rule 18  

laying down that the first vacancy and thereafter every alternative  

vacancy  shall  be  filled  from  amongst  the  candidates  borne  on  

Register ‘B’. In other words, the first officer has to be appointed  

from Register ‘B’ only. The stand of the State that direct recruits  

have preference over others was also noticed. In that view of the  

matter, it was opined that such a procedure must be reflected in  

the matter of seniority also.  

12. This Court held that Rule 18 should be read with Rule 21  

for the purpose of determining the seniority. It was held that as the  

selection process for the promotees was shorter as compared to  

direct recruits and as the promotees had enjoyed more perks by  

way of pay etc., the direct recruits should not suffer any injustice in

the matter of seniority also especially when both the category of  

employees were selected against the same requisition sent by the  

Government  to  the  Punjab  Public  Service  Commission.  On  the  

basis of the aforementioned findings, this Court directed:

“59. We have also referred to the decisions rendered by  

this Court. This Court said rota and quota must necessarily be  

reflected in the seniority list and any seniority list prepared in  

violation of rota and quota is bound to be negated. The action  

of the respondents in determining the seniority is clearly in total  

disregard of rota-quota rule prescribed in Rule 18 of the 1976  

Rules. The action is, therefore, clearly contrary to the law laid  

down by this Court. Thus, we hold:

1.  that  the  action  of  the  State  is  contrary  to  the  1976  

Rules;

2. the seniority under the 1976 Rules must be based on a  

collective interpretation of  Rule 18 and Rule 21 of  the 1976  

Rules;

3. the action of the authorities is negation of Rule 18 of  

the 1976 Rules in determining the seniority by the impugned  

order.  Since the action  is  contrary  to  law laid  down by this  

Court, we have no hesitation in allowing the appeal and grant  

the relief as prayed for by the appellant.”

13. Indisputably, review applications filed by some promotee  

officers  thereagainst  was  also  dismissed  by  this  Court  on  

17.8.2006.  

14. Inter alia, on the premise that the State has failed and/or  

neglected  to  the  time  frame  for  revising  the  seniority  list,  a

Contempt  Petition marked as Contempt  Petition (C)  No.  214 of  

2006  was  filed  on  or  about  15.10.2006.  Thereafter,  a  tentative  

seniority list was prepared on 15.12.2006. A final seniority list was  

prepared  on  4.4.2007  in  terms  whereof  all  the  direct  recruits  

(appellants) were placed before the first respondent.  

15. On or about 26.4.2007, the State Government forwarded a  

proposal to the Union Public Service Commission (U.P.S.C.) to call  

a meeting of the Review Selection Committee to review the select  

lists prepared for promotion to I.A.S. from the P.C.S. for the years  

1998-2006.  

16. This Court by an order dated 20.8.2007 while dismissing  

the contempt petition observed as under:

“Despite the dismissal of the contempt petition it is expected  

that  the  Union  Public  Service  Commission  should  hold  the  

meeting pursuant to the direction of this Court.”

17. On or about 12.10.2007, the State Government wrote to  

the U.P.S.C. that it had been decided to review the select lists from  

1992-1993 onwards for the purpose of appointment to the I.A.S.  

cadre.  A  second  round  of  litigation  thereafter  started  as  some  

promotees including the first respondent filed writ petitions against  

the final seniority list of 2007 raising almost similar grounds which  

had been taken in the review petitions filed before this Court. An  

interim order was passed in the said writ petitions on 15.10.2007  

directing  that  the  selection  process  would  go  on  but  the  writ  

petitioners  therein  would  not  be  reverted  till  further  orders.  

Evidently, in view of such order of stay, the direct recruits could not  

be promoted to IAS Cadre.

18. U.P.S.C. reviewed the select list from 1992 to 2006. It was  

found by the Committee that six officers were eligible for promotion  

under  the  new seniority  list  and made recommendations  to  the  

same effect. Six officers who were promoted on the basis of the  

incorrect  seniority  list,  and  subject  to  the  final  outcome  of  the  

decision  in  Arvinder  Singh  Bains  (supra),  were  required  to  be  

reverted  as  either  they  had  become  over-aged  or  too  junior.  

Respondent  No.1  was  one  of  them.  The  respondent  No.1,  

however,  filed  an  application  marked  as  O.A.  No.  185  of  2008  

before the Central Administrative Tribunal at Chandigarh, inter alia,  

praying for the following reliefs:

“1. Summon the records of the case and after perusal of the  

same quash the selection made of Respondent No.4 to 9 to  

the Indian Administrative Service by conducting review DPC  

held  on  25.2.2008  for  the  period  1992  to  2006,  without  

determining the vacancies, afresh as the applicant along with  

others  was  promoted to  the IAS from PCS on the  basis  of  

seniority list determined in 1993 and the applicant and others  

were  appointed  and  are  still  holding  the  post  of  Indian  

Administrative  Service,  with  further  direction  to  the  officials  

Respondent not  to appoint  the selected candidates from Sr.  

No.4 to 9, as IAS against the posts against which the applicant  

and others are working.

2. Direct the Respondents to grant the benefit of the Judgment  

of  Hon’ble  Supreme Court  of  India  in  Arvinder  Singh Bains’  

case only to the applicant therein, if it is admissible to him, and  

not  to  the  private  respondents  who  never  challenged  the  

seniority of the applicant settled in 1993 and 1994.”

19. By an order dated 18.3.2008,  the Central  Administrative  

Tribunal,  Chandigarh  while  issuing  notice  directed  that  the  

promotions  made  to  the  I.A.S.  would  be  subject  to  the  final  

outcome of the said O.A.

20. The first  respondent filed a writ  petition against the said  

order before the High Court. The High Court by reason of an Order  

dated  25.3.2008  granted  stay  on  the  reversion  of  the  first  

respondent  although  no  such  prayer  was  made  in  the  original  

application. It is the said order which is being impugned herein.

21. Before, however, adverting to the propriety and/or legality  

of  the  said  order  dated  25.3.2008,  we  may  notice  that  on  an  

application  filed  by  the  State  Government  for  vacation  of  stay  

granted on 15.10.2007 in C.W.P.No. 6857 of 2007, the High Court,  

by  its  order  dated  3.4.2008,  modified  its  interim  order  dated  

15.10.2007 to the effect that the same would not affect the right of  

six persons who have been found eligible to be promoted to the  

I.A.S. and recommended by the U.P.S.C. on or about 25.2.2007.  

However, no order of appointment has been issued to that effect.  

22.  Two  direct  recruits  recommended  for  promotion  to  the  

I.A.S.  have  also  filed  Special  Leave  Petition  before  this  Court  

against the said interim order dated 3.4.2008.  

23. The stand of the Union of India in the matter appears to be  

that the said order is an obstacle in the matter of implementation of  

the judgment of this Court in Arvinder Singh Bains (supra) as the  

order of reversion has been stayed.  

24.  We  may  also  furthermore  place  on  record  that  the  

applications were filed in Writ Petition No. 4806-CAT of 2008 for  

vacation  of  the  interim  order  which  appears  to  have  been

withdrawn in view of the Special Leave Petition filed herein. We  

have,  however,  heretobefore  noticed  that  one  Special  Leave  

Petition  was  dismissed  by  this  Court  with  which  we  are  not  

concerned hereat.  

25. The stand of the appellants as also the State of Punjab is  

that  the matter  in  regard to  the interpretation of  1976 Rules as  

regards  seniority  between direct  recruits  and  promotees  having  

been  finally  determined  by  this  Court  in  Arvinder  Singh  Bains  

(supra) wherein the relevant Rules have been interpreted, the High  

Court could not have granted an order of stay.  

26. Mr.  P.S. Patwalia, learned Senior Counsel appearing on  

behalf of the respondent No.1, on the other hand, would contend  

that the first respondent being not a party to the litigation and he  

having  been  appointed  in  December  1984,  the  decision  of  this  

Court in Arvinder Singh Bains (supra) would not be binding on him.  

It was contended that as the relief has been granted only to the  

appellant therein and keeping in view the fact that the seniority list  

dated 19.3.1993 having not been challenged, the High Court could  

have granted an order of stay.  

22.  This  Court  passed  an  order  dated  22.10.2008  in  the  

present appeals, which reads thus:

“Leave is granted in all the SLPs.

The  Union  of  India  and  the  Union  Public  Service  

Commission are parties before us. Although the Union of India  

has filed counter affidavit, nobody has appeared on its behalf.  

The Union Public Service Commission is represented by Ms.  

Binu Tamta.

Heard the learned counsel for the parties quite at length.

As  all  these  appeals  are  preferred  against  the  interim  

orders  passed  by  the  High  Court  of  Punjab  &  Haryana  at  

Chandigarh,  being  orders  dated  25.3.2008,  3.4.2008  and  

10.4.2008 and having regard to the fact that a large number of  

contentions have been raised before us, we are of the opinion  

that the operative portion of the judgment may be pronounced  

here and now. Detailed reasons therefor, however, would be  

assigned later on.

‘(1)  The  appeals  are  allowed,  modifying  the  impugned  

orders of the High Court to the following extent:

(a)  That  portion  of  the  impugned  orders  whereby  and  

whereunder the High Court has stayed the reversion of the writ  

petitioners, who are respondents in these appeals, shall stand  

vacated. However, they shall be adjusted against any of the 12  

vacancies which are stated to be existing and in respect  of  

which steps are being taken to send requisition to the Union of  

India  for  making  appointment.  The  writ  petitioners  –  

respondents  will  be  entitled  to  continue  against  those  

vacancies  only  till  appointment  against  those  vacancies  

notified by the Union of India.

(b)  The appellants  before  us must  be appointed to  the  

cadre of IAS in terms of the seniority list dated 4th April, 2007.  

(c) The above directions shall, however, be subject to the  

ultimate result  of  the writ  petitions which are pending before  

the High Court

(2) We in exercise of our jurisdiction under Article 142 of the  

Constitution of India, further direct the State of Punjab to send  

the  requisition  for  filling  up  all  the  above  mentioned  12  

vacancies in the cadre of IAS, to the Union of India and the  

Union  Public  Service  Commission,  as  expeditiously  as  

possible and preferably within a period of  three weeks from  

today.  Both  Union  of  India  and  Union  Public  Service  

Commission  are  hereby  directed  to  consider  the  requisition  

sent by the State of Punjab in respect of the aforementioned  

12  vacancies  as  expeditiously  as  possible  and  preferably  

within a period of 16 weeks from the date of communication of  

the requisition.

(3)  We  would  request  the  High  Court  to  consider  the  

desirability  of  disposing  of  the  pending  writ  petitions  as  

expeditiously as possible,  preferably within a period of three  

weeks from today.”

28.  The  question  as  to  whether  the  promotee  officers  who  

have filed original  applications before the Central  Administrative  

Tribunal would be entitled to obtain any relief awaits consideration.  

At the outset, we may observe that the High court could not have  

passed an interim order which had a serious civil consequence so  

far as the appellants are concerned and that too without giving any  

opportunity of hearing to them. If the contention raised before us  

that  the original  applicants  did  not  pray for  stay of  reversion is  

correct, in our opinion, the High Court ought not to have passed  

the impugned order. It is one thing to say that judgment delivered  

by this Court in Arvinder Singh Bains (supra) is not a judgment in  

rem but  prima facie this Court  has interpreted the Rules,  which

would be a law declared in terms of Article 141 of the Constitution  

of India. The High Court before arriving at a finding that the first  

respondent would be entitled to be promoted to the cadre of Indian  

Administrative  Service,  in  our  considered  opinion,  should  have  

bestowed serious consideration in regard to the implementation of  

the  said  judgment  and  the  effect  thereof.  It  was  for  the  said  

purpose, the High Court should have assigned some reasons in  

support of its order. We need not delve upon the said question in  

great detail. But it is beyond any cavil of doubt that before passing  

an interim order, the courts should not only consider prima facie  

case, balance of convenience, and irreparable injury but also its  

effect on public interest also. The public interest demands that the  

process should be continued. The Rules have been interpreted by  

this Court in Arvinder Singh Bains (supra), and review petition filed  

thereagainst had been dismissed. In the said review application,  

contentions have been raised which are similar to the ones raised  

by  the  first  respondent  in  his  original  application.  Furthermore,  

although this court dismissed the contempt application by an order  

dated 20.8.2007 by making certain observations, the same should  

have been given effect to. We are not unmindful of the fact that in  

these  matters  not  only  the  seniority  list  but  also  the  selection  

process has been under challenge. But, as noticed hereinbefore,  

no interim relief qua reversion has been sought for.  

29. This Court in  M. Gurudas vs. Rasaranjan  [(2006) 8 SCC  

367] opined:

“21.  While  considering  the  question  of  granting  an  order  of  

injunction one way or the other, evidently, the court, apart from  

finding out a prima facie case, would consider the question in

regard to the balance of convenience of  the parties as also  

irreparable injury which might be suffered by the plaintiffs if the  

prayer  for  injunction is to  be refused.  The contention of  the  

plaintiffs must be bona fide. The question sought to be tried  

must be a serious question and not only a mere triable issue.”

30. The Tribunal refused to pass an interim order but observed  

that  any action taken would be subject  to ultimate result  of  the  

original  application.  Thus,  in  a situation of  this nature,  the High  

Court  should  have  considered  the  question  as  to  whether  the  

respondent No.1 had any prima facie case or is there any balance  

of convenience in his favour. It is not a case where the dispute is  

between the private parties. Appointment to the cadre of I.A.S. is a  

matter of public interest. An interim order involving public interest  

in public law cases must receive different considerations.  

31.  The effect  of  the  interim order  vis-à-vis  the  clarificatory  

order  passed  by  the  High  Court  in  the  earlier  writ  application  

resulted  in  a  piquant  situation  in  the  sense  that  whereas  the  

appellants  were  entitled  to  be  promoted  to  I.A.S.,  the  Union  of  

India in their  counter  affidavit  raised the questions of  difficulties  

contending  that  unless  the  posts  fall  vacant,  no  appointment  

therein could be made. It may be true that when an employee is  

reverted to a lower post, he would suffer civil  consequences but  

then it was necessary not only in public interest, but also to give  

effect to the doctrine of comity and/or amity. The appellants were  

entitled  to  be promoted  as  of  right  subject  to  the  result  of  writ  

petition. They could not be denied promotion by another interim  

order passed in favour of the first respondent directing that they

could not be reverted as a result whereof the vacancy would not  

occur.  

32.  {See Transmission  Corpn.  of  A.P.  Ltd.  Vs.  Lanco  

Kondapalli Power (P) Ltd. [(2006) 1 SCC 540]}

33. This Court in India Household and Healthcare Ltd. vs. LG  

Household and Healthcare Ltd [(2007) 5 SCC 510] noticed:

“17. This  aspect  of  the  matter  has  been  considered  in  A  

Treatise  on  the  Law Governing  Injunctions by  Spelling  and  

Lewis wherein it is stated:

“Section  8.  Conflict  and  loss  of  jurisdiction.—Where  a  

court  having  general  jurisdiction  and  having  acquired  

jurisdiction of  the subject-matter  has issued an injunction,  a  

court of concurrent jurisdiction will usually refuse to interfere by  

issuance of a second injunction. There is no established rule of  

exclusion which would deprive a court of jurisdiction to issue  

an injunction because of the issuance of an injunction between  

the same parties appertaining to the same subject-matter, but  

there is what may properly be termed a judicial comity on the  

subject.  And  even  where  it  is  a  case  of  one  court  having  

refused  to  grant  an  injunction,  while  such  refusal  does  not  

exclude another coordinate court or Judge from jurisdiction, yet  

the granting of the injunction by a second Judge may lead to  

complications and retaliatory action….”

xxx xxx xxx

19. A court while exercising its judicial function would ordinarily  

not pass an order which would make one of the parties to the  

lis violate a lawful order passed by another court.”

The  impugned  interim  order  clearly  violates  the  

aforementioned rule.

34.  We,  however,  need  not  consider  the  question  as  to  

whether the rosters are different or whether the State and/or the  

Commission were correct  in preparing the select  lists.  We may,  

however, at this stage, only notice that this Court issued direction  

to  prepare  a  new  seniority  list.  We  need  not  also  go  into  the  

questions raised by the learned counsel appearing on behalf of the  

respondents that the appellants were not entitled to any relief on  

the ground of latches or delay on their  part.  We may, however,  

observe that  this  Court  in  Arvinder  Singh Bains  (supra)  did  not  

issue  any  direction  and/or  any  specific  indication  that  the  said  

decision would be confined to the petitioners therein only.  

35. We were, however, informed at the bar that 12 vacancies  

existed. Only in that view of the matter directions were issued to  

consider the cases of the respondents for promotion to the cadre  

of I.A.S. against any of those vacancies if they are found ultimately  

eligible therefor. It is only with that in view, we had in exercise of  

our  jurisdiction  under  Article  142  of  the  Constitution  of  India  

directed the Union of India to make requisition therefor. We may  

furthermore  observe  that  we  have  not  gone  into  some  other  

questions which have been raised at the bar as no observation  

made therein may prejudice one of the parties hereto.  

36. The above are the reasons in support of our order dated  

22.10.2008.