REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6253 OF 2008

Prabhjot Singh Mand & Ors. …Appellants

Versus

Bhagwant Singh & Ors. …Respondents

[with Civil Appeal No. 6254 of 2008 and Civil Appeal Nos. 6255-6259 of  2008]

J U D G M E N T  

S.B. SINHA, J:

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.  

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   It  repealed and replaced the  Rules  framed in  the  year  1930.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.   

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.

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  

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

list of 1993.   

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.   

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.   

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  

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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.”

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.”

In arriving at the said finding, this Court took into consideration Rules  

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

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

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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  

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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.”

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.   

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  

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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.”

Indisputably,  review  applications  filed  by  some  promotee  officers  

thereagainst was also dismissed by this Court on 17.8.2006.   

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  

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seniority  list  was  prepared  on  4.4.2007  in  terms  whereof  all  the  direct  

recruits (appellants) were placed before the first respondent.  

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.    

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.”

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  

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view of such order of stay, the direct recruits could not be promoted to IAS  

Cadre.

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.

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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.”

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.

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.

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  

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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.  

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.   

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.  

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.   

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.   

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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.  

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  

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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  

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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.”

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  

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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.  

This Court in M. Gurudas vs. Rasaranjan [(2006)  8 SCC 367] opined:

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“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.”

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.   

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  

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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.  

{See Transmission Corpn. of A.P. Ltd. Vs.  Lanco Kondapalli Power  

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

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  

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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.

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.   

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  

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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.   

The above are the reasons in support of our order dated 22.10.2008.  

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi;; July 29, 2009.

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