REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7537-7541  OF 2009 (Arising out of SLP (C) Nos.13237-13241 of 2008

Shiba Shankar Mohapatra & Ors. … Appellants

Vs.

State of Orissa & Ors. … Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted in all the matters.

2. These  appeals  have been preferred against  the  judgment  and order  

dated 7.2.2008 passed in writ petition nos.426, 1233, 2878, 3424 and 5637  

of 2006 by the High Court of Orissa at Cuttack by which the High Court has  

partly allowed all the writ petitions quashing certain directions issued by the  

Orissa Administrative Tribunal (hereinafter called the ‘Tribunal’),  however,  

directed to reconsider the case of promotion of  Sub-Inspectors (General)  

(hereinafter called ‘SIs (g)’) to the post of Inspectors, in case it is found that

the SIs (g)  had been placed below the Sub-Inspectors (Steno) (hereinafter  

called  SIs  (St),  they  should  be  granted  promotion  from  the  date  their  

counterparts  in the other  wing had been promoted,  in case,  they fulfilled  

minimum eligibility criteria for promotion at the time of consideration of  

their  respective  juniors.   Such an  exercise  was  directed  to  be completed  

within  a  period  of  six  months.   However,  the  writ  petitions  have  been  

allowed to the extent that the direction issued by the Tribunal to prepare the  

gradation list of SIs (St) and SIs(g) in accordance with the dates of passing  

out of the Sub-Inspector training course, has been quashed.  

3. The facts and circumstances giving rise to these appeals are that most  

of the officers appellants/respondents involved in all these five appeals, had  

been appointed in 1972-73 onwards as SIs (g)  and SIs (St).  The eligibility  

for  appointment  had  been  different  for  both  the  wings.  An  additional  

qualification  of  stenography was  required  for  the  post  of  SI  (St).   After  

selection,  candidates  who  were  appointed  as  SIs  (St)  were  given  direct  

appointment and after five years, thereof, they were sent for training and  

after successful completion of training, they could become SIs(g) and could  

be  considered for further promotion as Inspectors.  So far as the SIs (g)  

were concerned after their  selection they were sent for training in Police  

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Training  College  and  after  completion  thereof,  they  were  appointed  on  

probation  for  2 years.  Most of the officers belonging to both groups had  

been  promoted  as  Inspectors,  Deputy  Superintendent  of  Police  and  

Superintendent  of  Police  and  by  now  retired  after  attaining  the  age  of  

superannuation.  There are claims and counter-claims regarding issuance of  

their  inter-se  seniority  lists  in  1979,  and in  the  year  1992.   However,  it  

remains  undisputed  that  after  considering  the  objections  received  by  the  

Department, a final inter-se seniority list was issued in 1997 and  again in  

1999.  One SI (g) Parsuram Sahu, appointed in 1968 filed representation  

before  the  State  Govt.  to  fix  his  seniority  over  and  above  two  officers  

belonging  to  the  group  of  SIs  (St)   and  as  no  order  was  passed  he  

approached the Tribunal by filing  OA No.316/2000 – Parsuram Sahu v.  

Principal Secretary, Home Department, Govt. of Orissa & Ors. with a prayer  

for direction to recast the gradation list published in June 1997 and to place  

him over and above the respondent nos.4 and 5 therein.  The said application  

was  allowed  by  the  Tribunal  vide  judgment  and  order  dated  27.4.2005  

(Annexure-P/4)  with  a  direction  to  consider  the  representation  of   Shri  

Parsuram Sahu keeping in mind the letter issued by the Home Department  

dated 3.2.1987 according to which, the seniority of the SIs (St) would be  

determined after their entry into General wing  after passing the Training  

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Course.   The  other  O.A.  No.23/2000 –  Sudhir  Chandra  Ray  v.  State  of  

Orissa & Ors. was decided vide judgment and order dated 8.12.2005 placing  

reliance upon the judgment in Parsuram Sahu’s case and similar direction  

was issued.  Same remained the fate of OA No.203/2001 – Sushanta Kumar  

Biswal & Ors. v. State of Orissa & Ors. filed by officers appointed in 1993  

as  SIs  (g)  as  the  said  Application  was also  disposed  of  by  the  Tribunal  

relying upon its  earlier  judgments  in Parsuram Sahu and Sudhir  Chandra  

Ray’s cases.  Being aggrieved,  Writ Petition No.624 of 2006 was filed by  

SIs (St) in the High Court challenging the judgment and order in OA No.203  

of 2001, and four other writ petitions against the judgment and order in OA  

No.23 of 2000.  All the said  petitions have been disposed of by the High  

Court by a common judgment and order impugned herein.   Hence, these  

appeals.

4. Shri P.P. Rao, Ld. Senior Counsel appearing for the appellants has  

submitted that there could be no justification for the Tribunal/High Court to  

place reliance upon the letters, one written by the Home Department dated  

3.2.1987 and the other by Ministry of Law dated 14.2.1990 as the said letters  

were merely an opinion of the Departments and could not be treated as being  

Executive instructions. In fact, no executive instruction had ever been issued  

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taking into consideration the said letters. In absence of any statutory rules for  

determining their inter-se seniority, the general principle of determination of  

seniority  i.e.  to  reckon  the  period  from  the  initial  appointment  i.e.  

continuous  period/length  of  service  should  have  been  taken  into  

consideration.  The long standing practice followed by the State Authorities  

that SIs (St) would rank senior to SIs(g) could not be disturbed at such a  

belated stage, as it had been given effect to all throughout this period.  More  

so, as the first part of the order passed by the Tribunal, namely, to prepare  

the  gradation  list  of  SIs  (St)  and SIs(g)  in  accordance  with  the  dates  of  

passing the course from the training college, has been set aside by the High  

Court and  has not been challenged by anybody, has attained finality and  

therefore,  the  direction given against  the present  appellants  regarding the  

eligibility qua the seniority is liable to be quashed. The High Court erred in  

not taking note of distinction between eligibility for promotion and seniority.  

More so, the two Original Applications have been decided by the Tribunal  

merely  by  placing  reliance  upon  its  earlier  judgment  in  Parsuram  Sahu  

(supra)  which  could  not  have  been  entertained  at  such  a  belated  stage.  

Hence, the appeals deserve to be allowed.   

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5. On the contrary,  Shri L.N. Rao, Ld. Senior Counsel appearing for the  

SIs (St) has submitted that the High Court has issued direction only to give  

effect  to  the  statutory  rules,  particularly,  Rule  650  of  the  Orissa  Police  

Manual Rules (hereinafter called ‘the Rules’) which provides that eligibility  

of  Sub-Inspectors  for  promotion  to  the  rank  of  Inspectors  have  to  be  

determined as per  Rule  650(a)(ii)  which provides  for  minimum 10 years  

continuous  service  after  passing  of  the  training  course.   SIs(St)   are  

appointed in terms of  Rule 683 read with annexure 42 to the Rules.  Nature  

of job of SIs(St) is entirely different from the duties of SIs(g).  The SIs(St)  

basically perform Secretarial duties; SIs(St) are required to go through the  

training  course  and  then  appointed  on  probation  as  SIs(g).   Rules  also  

require  confirmation    as  SIs(g).     Thus,  it  cannot  be  termed  as  in  

continuation of their previous appointment as SIs(St).   Period of  service  

rendered as SI(s) can be treated only as a qualifying service and cannot be  

counted for the purpose of seniority.  Therefore, no  fault can be found with  

the impugned judgment. The appeals are liable to be dismissed.   

6. Shri  Radhey Shyam Jena,  Ld.  Counsel  appearing for the State  has  

fairly conceded that the rules for  determining the inter-se seniority have not  

yet been framed.  Earlier SIs(St) had been treated senior to SIs(g) for a long  

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period but  after  receiving the  opinion from the Ministry  of  Law,  such a  

practice has been abandoned.  What the Tribunal and the High Court have  

taken  into  consideration  were  merely  opinions  of  the  Government  

Departments and not  the executive instructions.   The cases  require  to be  

decided in correct perspective.

7. We have considered the rival submissions canvassed on behalf of the  

parties and perused the record.  The basic judgment involved herein is, in the  

case of Parsuram Sahu by the Tribunal and it may be pertinent to mention  

here that the said judgment had not been challenged by any person either  

before  the  High  Court  or  before  this  Court  and  thus  attained  finality.  

Therefore, it becomes necessary for this Court to examine the correctness of  

that judgment and effect thereof,  as the other judgments have been delivered  

by  the  Tribunal  merely  by  placing  reliance  upon  it.  The  admitted  facts  

involved  therein  reveal  that  one  Pursuram Sahu SI  (g)  joined the  Police  

Services in 1968.  He was promoted to the rank of Inspector in 1986 and to  

the rank of D.S.P. in 1998.  In his O.A. before the Tribunal, he impleaded  

only two private persons, namely, Shri Bijaya Brata Kundu and Shri Paresh  

Ch. Mohanty who had been working as Superintendents of Police in the year  

2000.   The  said  private  respondents  had  been  appointed  as  SIs  (St)  on  

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25.1.1966 and 23.2.1966 respectively.     The said respondents did not enter  

appearance  nor  contested  the  case.   Therefore,  questions  do  arise  as  to  

whether in absence of any statutory rule for determining their seniority as  

SIs, the Tribunal could disturb the uninterrupted practice in the State to place  

SI(St) above SI(g) while preparing their inter se seniority and whether the  

application could be entertained by the Tribunal  at such a belated stage,  

particularly,  when promotions  of the respondents  therein to the posts of  

Inspector, D.S.P. or Superintendent of Police had never been challenged.  

8. The  question  of  application  of  the  doctrine  of  contemporanea  

expositio has been considered by this Court taking into account the factual  

matrix of the case.  In K.P. Varghese Vs. Income-tax Officer, Ernakulam  

& Anr. AIR 1981 SC 1922, this Court applied the rule of contemporanea  

expositio as the Court found it a well  established rule of interpretation of a  

statute  by  reference  to  the  exposition  it  has  received  from contemporary  

authority. However, the Court added the words of caution that such a rule  

must give way where the language of the statute is plain and unambiguous.  

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Similarly,  in  Collector  of  Central  Excise,  Bombay-I  & Anr.  Vs.  

M/s. Parle Export (P) Ltd., AIR 1989 SC 644, this Court observed that the  

words used in the provision should be understood in the same way in which  

they have been understood in ordinary parlance in the area in which the law  

is in force or by the people who ordinarily deal with them. In Indian Metals  

and Ferro Alloys  Ltd.,  Cuttack Vs.  The Collector  of  Central  Excise,  

Bhubaneshwar, AIR 1991 SC 1028, the Court has applied the same rule of  

interpretation  by  holding  that  contemporanea  expositio by  the  

administrative  authority  is  a  very  useful  and  relevant  guide  to  the  

interpretation of the expression used in a statutory instrument.  

9. In  N. Suresh Nathan  & Ors. Vs. Union of India & Ors, AIR 1992  

SC 564; and  M.B. Joshi & Ors. Vs.  Satish Kumar Pandey & Ors. AIR  

1993 SC 267, this Court observed that construction in consonance with long-

standing practice prevailing in the concerned department is to be preferred.

10. In  Desh Bandhu Gupta & Co. & Ors Vs.  Delhi Stock Exchange  

Association Ltd. AIR 1979 SC 1049;  and State of  Tamil Nadu vs. Mohi  

Traders, AIR  1989  SC  1167,  this  Court  observed  that  the  principle  of  

contemporanea expositio, i.e. interpreting a document by reference to the  

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exposition it has received from Competent Authority can be invoked though  

the 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  execution  of  the  

Act/Rules etc.  generally should 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  

M/s. Punjab Traders vs. State of Punjab and Ors. AIR 1990 SC 2300 and  

M/s. Oswal Agro Mills Ltd. vs. Collector of Central Excise AIR 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  unless  it  is  found in  

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violation of the Rules itself.   The Court may not be bound to accept the  

mistaken construction of the statutes by those who had been dealing with the  

working of the Statute.  

In  instant Appeals, this fact has been mentioned 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  of the Law  

Ministry and Home Department as statutory rules/Executive instructions  is  

not worth acceptance.  In Sant Ram v.  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. Patankar & Ors. AIR 1984 SC 1587.  

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However,  mere opinion given by various departments of the Government  

cannot be termed as  Executive instructions.   

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 of India &  

Ors. AIR 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 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.”  

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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 conferred 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 delay 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  

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in refusing relief to the petitioner on the ground of laches or delay, is that the  

rights, which have accrued to others by reason of delay in filing the writ  

petition should not be allowed to be disturbed unless there is a reasonable  

explanation for delay.  The Court further observed 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  earlier  judgment  of  the  

Constitution Bench in  R.N. Bose v.  Union of India & Ors. 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 v. I.M. Menon & Ors. AIR 1982 SC 101, this Court  

considered  all  aspects  of  limitation,  delay  and  laches  in  filing  the  writ  

petition in respect of inter se seniority of the employees.  The Court  referred  

to its earlier judgment in State of Madhya Pradesh & Anr. v. Bhailal Bhai  

etc.  etc.,  AIR  1964  SC  1006,  wherein  it  has  been  observed  that  the  

maximum period fixed by the Legislature as the time within which the relief  

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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  

of the Constitution 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 challenge against the  seniority principles laid down in the Government Resolution of   1968… We would accordingly hold that the challenge raised by  the petitioners against the seniority principles laid down in the  Government Resolution of March 2, 1968 ought to have been  rejected by the High Court on the ground of delay 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 continued to be in  

existence  for  a  long  time,  was  again  considered  by  this  Court  in  K.R.  

Mudgal & Ors. v. R.P. Singh & Ors. AIR 1986 SC 2086.  The Court held  

as under:-

“A government servant who is appointed to any post ordinarily   should at least  after a period of 3-4 years of his appointment  be  allowed  to  attend  to  the  duties  attached  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  

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by writ petitions filed after 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  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 earlier  

judgment in Malcom Lawrance Cecil D’Souza v. Union of India & 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 of   many 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 given a quietus after lapse of some time.”   (Emphasis added)

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21. In  B.S. Bajwa v.  State of Punjab & 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  not  justifiable.   There  was   inordinate  delay  in  the  present  case  for  making  such  a   grievance.   This  along was sufficient  to  decline  interference   under Article 226 and to reject the writ petition”. (Emphasis   added)

22. In  Dayaram Asanand v.  State of Maharashtra & Ors. AIR 1984  

SC 850,  while re-iterating the similar view this Court held that in absence of  

satisfactory  explanation  for  inordinate  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 v. 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 promotion.  However, this Court held that aggrieved  

person  must  approach  the  Court  expeditiously  for  relief  and  it  is  not  

permissible to put forward stale claim.  The Court observed as under :-

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“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 the Court to put forward stale claim and 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 of U.P. vs.  Raj  

Bahadur Singh & Anr. (1998) 8 SCC 685; and  Northern Indian Glass  

Industries vs. Jaswant Singh & Ors. (2003) 1 SCC 335.

26. 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  

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always fatal, but in case the party satisfies the Court regarding delay, the  

case may be considered.  

27. In  K.A. Abdul Majeed vs.  State of Kerala & 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  

Aflatoon & 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; Inder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637;  Shiv  

Dass vs. Union of India & Ors., AIR 2007 SC 1330;  Regional Manager,  

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A.P.SRTC vs.  N.  Satyanarayana & Ors. (2008) 1 SCC 210;  and  City  

and  Industrial  Development  Corporation  vs.  Dosu  Aardeshir  

Bhiwandiwala & Ors. (2009) 1 SCC 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  

K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a  

seniority  list  which  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 period, he has to explain the delay and laches in approaching the  

adjudicatory forum, by furnishing 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  

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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.  More so, there is nothing on record to show as to  

whether the said applicant Parsuram Sahu could ever get any relief from the  

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  

SI(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 the 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 before this  

Court.   

31. The  appellants  have  specifically  pleaded  that  a  seniority  list  was  

issued in 1979.  Subsequently, another seniority list was issued in 1992.  A  

tentative  seniority  list  was  circulated  in  1996,  and  after  considering  the  

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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 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 a combined gradation list of  SIs (St) and SIs(g).  

However,  the  High  Court  failed  to  decide  the  said  issue  rather  directed  

preparation of a combined list in conformity with eligibility criterion.

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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 by the Tribunal  

directing the State Authorities to prepare the gradation list  of  SI(St) and  

SI(g)  in  accordance  with  the  dates  of  passing  out  of  the  Sub-Inspector  

training course.  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  

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  

above,  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  

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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 for promotion at  

the time of consideration of his junior”.  The first part of the order contained  

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 issue of delay and  the facts involved in that case  

expeditiously.   

35. The appeals stand disposed of accordingly.  No cost.   

…………………………….J. (TARUN CHATTERJEE)

        ………………………… ……...J.

(Dr. B.S. CHAUHAN) New Delhi, November 12, 2009

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