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CASE NO.: Special Leave Petition (civil) 10653  of  1998 Special Leave Petition (civil)  12013    of  1998 Special Leave Petition (civil)  16740    of  1998

PETITIONER: STATE OF BIHAR & ORS.

       Vs.

RESPONDENT: KAMESHWAR PRASAD SINGH & ANR.

DATE OF JUDGMENT:       27/04/2000

BENCH: S. Saghir Ahmad, & R. P. Sethi.

JUDGMENT:

SETHI, J. L...I...T.......T.......T.......T.......T.......T.......T..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  27.7.1971.   However,  on  13.4.1993  the  DGP modified  the  aforesaid order and directed confirmation  of Brij  Bihari  Prasad  Singh in the rank  of  Inspector  with effect  from  2.7.1978  when he was  substantively  promoted under Rule 649 of the Rules and placed him at Sl.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,

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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 of contempt.

   Ramjas  Singh who was promoted as Inspector out of  turn on  the basis of gallantry award 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  coercive 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 petitions 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.  If promotions 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  benefits.  He claimed to have been  appointed along  with  Brij  Bihari Prasad Singh as Sub  Inspector  of Police  in January, 1966.  His name was shown above the name of  Brij Bihari Prasad Singh in the cadre of Sub Inspectors. 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 promotion 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

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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 the  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 otherwise 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 promotion to the post of Dy.SP and SP which  was noticed to have been already granted to him.  LPA filed  against the judgment of the learned Single Judge  was dismissed  on  the ground of unexplained delay of 174  days, vide the judgment impugned in this petition.

   Indra Nand Mishra and others who were intervenors in the High  Court filed an 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.@@               JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

   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  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

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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 Ramjas 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 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 claim 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 of parties 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 substantial  justice  to parties by disposing of matters  on merits.  This Court in Collector, Land Acquisition, Anantnag &  Anr.  vs.  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 of courts.  It was  further observed that a liberal approach is adopted  on principle as it is realised that:

   "1.   Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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   2.    Refusing  to  condone  delay   can  result  in   a meritorious  matter  being thrown out at the very  threshold and  cause of justice 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 pragmatic manner.

   4.     When   substantial     justice   and    technical considerations  are  pitted  against each  other,  cause  of substantial  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 fides.  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  account of its power to legalize injustice on  technical grounds  but because it is capable of removing injustice and is expected to do so."

   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)  SCC 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) SCC 366 O.p.   Kathpalia v.   Lakhmir  Singh  [1984  (4)  SCC  66],  Collector,  Land Acquisitionv.   Katiji  [1987 (2) SCC 107], Prabha  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  of India[1991  (1)  SCC  174], Binod Bihar Singh v.   Union  of India  [1993  (1) SCC 572], Shakambari & Co.  v.   Union  of India[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) SCC 132] held:

   "It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - 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 administered in  an  even-handed manner.   When  the  State  is  an  applicant,  praying  for condonation of delay, it is common knowledge that on account of  impersonal  machinery  and  the  inherited  bureaucratic methodology  imbued with the note-making, file pushing,  and

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passing-on-the buck ethos, delay on the part of the State is less  difficult  to  understand  though  more  difficult  to approve,  but  the State represents collective cause of  the community.   It  is  axiomatic that decisions are  taken  by officers/agencies  proverbially at slow pace and  encumbered process of pushing the files from table to table and keeping it   on  table  for  considerable   time  causing  delay   - intentional or otherwise - is a routine.  Considerable delay of  procedural  red-tape  in  the process  of  their  making decision  is a common feature.  Therefore, certain amount of altitude  is  not impermissible.  If the appeals brought  by the   State  are  lost  for   such  default  no  person   is individually  affected  but  what in the  ultimate  analysis suffers,  is  public interest.  The  expression  ’sufficient cause’  should, therefore, be considered with pragmatism  in justice-oriented  process approach rather than the technical detention  of  sufficient  case for explaining  every  day’s delay.  The factors which are peculiar to and characteristic of the functioning of pragmatic approach in justice oriented process.   The  court  should decide the matters  on  merits unless  the  case is hopelessly without merit.  No  separate standards to determine the cause laid by the State vis-Ã -vis private  litigant could be laid to prove strict standards of sufficient  cause.   The  Government  at  appropriate  level should  constitute legal cells to examine the cases  whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers  to take a decision to give appropriate  permission for settlement.  In the event of decision to file the appeal needed  prompt  action  should  be pursued  by  the  officer responsible  to  file  the  appeal and  he  should  be  made personally  responsible  for lapses, if any.   Equally,  the State  cannot  be put on the same footing as an  individual. The  individual would always be quick in taking the decision whether  he  would pursue the remedy by way of an appeal  or application since he is a person legally injured while State is  an impersonal machinery working through its officers  or servants."

   To  the  same  effect is the judgment of this  Court  in Special  Tehsildar,  Land  Acquisition,   Kerala  v.    K.V. Ayisumma [1996 (10) SCC 634].

   In  Nand Kishore v.  State of Punjab [1995 (6) SCC  614] this  Court  under  the peculiar circumstances of  the  case@@              JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ condoned  the  delay in approaching this Court of  about  31@@ JJJJJJJJJJJJJJJJJJJJJJJ years.   In  N.  Balakrishnan v.  M.Krishnamurthy [1998  (7) SCC  123] this Court held that the purpose of Limitation Act was  not  to  destroy the rights.  It is founded  on  public policy  fixing  a  life span for the legal  remedy  for  the general  welfare.   The  primary function of a Court  is  to adjudicate  disputes  between  the parties  and  to  advance substantial  justice.  The time limit fixed for  approaching the  court  in  different situations is not because  on  the expiry  of such time a bad cause would transform into a good cause.   The  object of providing legal remedy is to  repair the  damage  caused  by  reason of  legal  injury.   If  the explanation  given does not smack malafides or is not  shown to  have been put forth as a part of dilatory strategy,  the court must show utmost consideration to the suitor.  In this context it was observed:

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   "It  is axiomatic that condonation of delay is a  matter of discretion of the court.  Section 5 of the Limitation Act does  not say that such discretion can be exercised only  if the  delay is within a certain limit.  Length of delay is no matter,  acceptability  of  the   explanation  is  the  only criterion.   Sometimes  delay of the shortest range  may  be uncondonable due to a want of acceptable explanation whereas in  certain  other cases, delay of a very long range can  be condoned  as the explanation thereof is satisfactory.   Once the  court accepts the explanation as sufficient, it is  the result  of positive exercise of discretion and normally  the superior court should not disturb such finding, much less in revisional  jurisdiction, unless the exercise of  discretion was  on  wholly untenable grounds or arbitrary or  perverse. But it is a different matter when the first court refuses to condone  the delay.  In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court."

   Looking into the facts and circumstances of the case, as noticed  earlier  and with the object of  doing  substantial@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ justice  to all the parties concerned, we are of the opinion@@ JJJJJJJJJJJJJJJJJJJ that  sufficient cause has been made out by the  petitioners which  has  persuaded us 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 before  us, but hundreds of other persons who are stated  to be  senior than the respondents.  The technicalities of  law cannot prevent us from doing substantial justice and undoing the  illegalities  perpetuated on the basis of the  impugned judgments.   However,  while  deciding  the  petitions,  the reliefs  in the case can appropriately be moulded which  may not  amount to unsettle the settled rights of the parties on the  basis  of  judicial pronouncements made by  the  courts regarding which the State is shown to have been careless and negligent.   It is paramount consideration of this Court  to safeguard  the  interests of all the litigants  and  persons serving  the  Police  Department of the State  of  Bihar  by ensuring  the security of the tenure and non disturbance  of accrual  of rights upon them under the prevalent law and the rules  made in that behalf.  Accordingly delay in filing the petitions is condoned.

   Leave granted.

   The facts as noticed earlier are not seriously disputed. The  respondent  Brij  Bihari Prasad Singh  had  filed  Writ Petition  No.1556/90  praying therein that he be  given  the same  benefit  as was given to the writ petitioners in  Writ Petition No.563 of 1985.  He contended that similar benefits had  been  conferred  upon many police officers and  he  had allegedly  been  discriminated.   The   writ  petition   was dismissed  as  withdrawn  on  31st   July,  1990  with   the observation  that  "however,  this shall not  prejudice  the petitioners  in pursuing a remedy, if any, available to  him or  pursuing  his  representation which we are  informed  is pending  with  the  State".   As  his  representation  dated 4.6.1988  had not been considered, Brij Bihari Prasad  Singh filed writ petition No.6873 of 1990 in which he prayed:

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   "Under   the  above  facts   and  circumstances  it  is, therefore,  prayed that your lordships be graciously pleased to  admit  this application issue rule NISI and  after  both parties  and there show causes if any allow this application by  issuing  a  writ of directing the  respondents  to  give promotion and other consequential benefits to the petitioner from  the post of Inspector of Police to the post of  Deputy Superintendent  of  Police from the date the  petitioner  is found in legal entitle considering the case for promotion to the  post of Deputy Superintendent of Police by treating  as confirmed  Inspector of Police with effect from 27.7.71 i.e. the  date of continuous officiation in the rank of Inspector of Police in the event of judgments and order passed by this Hon’ble  Court  relying  on judgment of  the  Supreme  Court contained in Annexure 1, 2 and 3 of this writ application or pass  such other order or orders as to your lordships may be pleased fit and proper."

   As  the  Director General modified his order dated  14th May,  1991  vide his subsequent order dated 13.4.1993,  Brij Bihari  Prasad  Singh  filed Writ Petition No.4108  of  1994 wherein  he  alleged that his seniority had not  been  fixed correctly in the rank of Inspectors.  A learned Single Judge of the High Court vide his interim order directed appellants herein  to  issue  a regular order of promotion  and  if  so advised  to determine the seniority of the writ  petitioners in  the cadre of Dy.SP of Police.  It examined the  legality of  the  order  of  the Director  General  of  Police  dated 13.4.1993 and held:

   "The  petitioner’s seniority once determined in the rank of  Inspector  with effect from 27.7.1971 cannot be  legally altered  without  notice  nor is any justification  for  the alteration pointed out by the learned State counsel.

   Therefore, his seniority in the rank of Inspector has to be  reckoned  with  effect  from  27.7.1971.   The  date  of confirmation,  in these circumstances, would, therefore, not to  relevant for determining the seniority of the petitioner in the rank Inspector, and is necessary, his confirmation on the  post of Inspector would have to as made afresh treating the  petitioner to have been placed on probation in the rank of   Inspector   from   27.7.1971.   Further   consequential revisions, if necessary, shall also be made in the gradation list  of  the  Deputy  Superintendent of  Police  where  the petitioner has been placed at Serial Number 399."

   The impugned order was quashed and a direction issued to the   appellant  to  reckon  the   seniority  of  the   writ petitioners  in  the  rank of Inspectors  with  effect  from 27.7.1971  with  all consequential benefits as a  result  of revision  of his seniority in the rank of Inspector as  well as  that of Dy.SP of Police.  Admittedly, this order was not appealed   against  and  ultimately   implemented   by   the authorities  of  the appellant- State.  By order  dated  1st October,  1994  the respondent Brij Bihari Prasad Singh  was held entitled for promotion to the post of Dy.SP with effect from  11th July, 1981 and not with effect from 25th October, 1975.   He  again  filed  writ   petition  No.697  of   1995 submitting  therein that having been confirmed to the  lower post  of  Inspector  of  Police from  1st  March,  1975  his seniority  should  be counted from the date of  confirmation

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i.e.   25th October, 1975.  It was noticed that Ramjas Singh who  was  allegedly junior to him had been promoted  to  the post  of  Inspector with effect from 8th July,  1972.   Brij Bihari  Prasad  Singh  claimed to be senior to  said  Ramjas Singh  on the ground of having been promoted as Inspector on officiating  basis  on 27.7.1971.  The learned Single  Judge held:

   "Having  heard  the parties, my considered view is  that the  impugned  order dated 1st October, 1994  is  completely illegal.   The  same is against the order and  direction  of this  Court  dt.8th April, 1994, passed in CWJC  No.4108/91, wherein  this  court  categorically held  and  directed  the respondents  to provide the petitioner with the seniority in the  rank of Inspector of Police with effect from 27th July, 1971.   By the impugned order, as contained in  annexure-12, the respondents cannot superseded and/or alter the aforesaid finding of this Court, in fact, Annexure-12 is contemptions.

   Apart  from  the  aforesaid  fact,  numerous  decisions, including  the  decision  given  by the  Supreme  Court,  as reported  in  AIR  1977 SC 2051, it has been held  that  the seniority  of a person cannot be dependent on  confirmation, if  confirmation  itself  is fortuitous in nature.   In  the present case I have taken into note that confirmation of the petitioner  and Sh.Ramjas Singh to the post of Inspector  of Police  itself was fortuitous in nature, the same having not been  made  on  the  assessment of merit.   Such  being  the position,  the impugned order dated 1st October, 1994 cannot be sustained in the eye of law."

The  order dated 1st October, 1994 in so far as it  related to the writ petitioner was set aside with a direction to the authorities  of the appellant-State to consider the case  of the  writ petitioner for promotion to the post of Dy.SP with effect  from  25th  October, 1975 i.e.  the  date  when  his alleged  junior  Shri  Ramjas Singh was  promoted.   It  was further  directed that in case the writ petitioner was found fit  for  promotion with effect from 25th October,  1975  he would  shift back the date of promotion to the post of Dy.SP from  11th July, 1971 to 25th October, 1971.  The appellants were  further directed to provide all consequential benefits to the petitioners.

   Rule  649 deals with the promotion of Sub Inspectors  to Inspectors and Reserve Sub-Inspectors to Reserve Inspections and provides:

   "649.   Inspectors  and  Reserve  Inspectors--  (a)  The promotion  of  Sub-Inspectors  to  Inspectors,  and  Reserve Sub-Inspectors  to  Reserve Inspectors will be made  by  the Inspector-General  on the advice of the Inspector  General’s Selection  Board [Appendix 72(1)] (For period of  probation, See Rule 668).

   (b)  In July the Deputy Inspector-General will call  for nominations  for  promotion to reach him on the date  fixed. The  form of nomination and the list of enclosures are given in P.M.  Form No.102.

   (c)  At least 14 days before nominations are sent to the Deputy  Inspector General the names of the nominees shall be published  by the nominating authority in district orders so that  those who are not nominated may have an opportunity of

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representing their cases before the nominations are actually submitted.   Officers,  having such representation to  make, should  be  given interviews and their cases  examined  with them.

   In  case  their representations are rejected, those  who have  been superseded may file representation before  Deputy Inspector  General.  Such representation shall be  submitted within  14 days of receipt of information and this shall  be forwarded   soon  to  Deputy   Inspector  General,  so  that additional  nominations may be sent on the orders of  Deputy Inspector General.

   In  forwarding  the  nominations a certificate  must  be given  of  the dates on which the lists were  published  and intimations  sent  to  those not  nominated.   In  selecting Sub-Inspectors  and  Reserve Sub Inspectors  for  promotion, preference  should  be  given  to those  who  have  received special  commendation  for integrity of character  and  good defective work.

   (d)  The  Range Selection Board [Appendix  72(3)]  shall scrutinize  the  district nominations and shall select  from among  them in order of merit those whose nominations are to be  sent  before  the  Inspector-General’s  Selection  Board [Appendix  72(1)]  on a date to be fixed by  the  Inspector- General.

   (e)  The  Inspector-General’s Selection Board  [Appendix 72(1)]  shall  scrutinize  the   nominations  of  the  Range Selection  Board  and  compile a list  of  selections  which should  ordinarily be in order of seniority for promotion as vacancies occur.  If an officer is placed higher in the list than  his seniority warrants a full note giving reason shall be  recorded.  This list shall be of as many  Sub-Inspectors as  there  are  vacancies plus  few  anticipatory  vacancies depending  on averages of last few years.  Promotions by the Inspector-General under clause (a) shall be confined to this list  but  if any one does not get appointed from the  list, his  case shall be reviewed again at the time of preparation of the next year’s list and if found fit, he shall be placed above the selected nominees of that year."

   The  respondent  Brij Bihari Prasad Singh is  stated  to have been promoted as Inspector in terms of the said Rule on@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 2nd  July,  1978.   Rule 660(c) deals with the out  of  turn@@ JJJJJJJJJJJJJJJJJ promotions  and reads:  "Selection Boards may recommend  out of  turn  promotion of officers with outstanding records  of service  and competent authorities may order such  promotion in  deserving  cases  as they deem fit and proper  with  the approval of next higher authority.

   Officers so promoted should be placed below the officers of the approved existing list of respective rank prepared by Selection  Boards  and  be   confirmed  against  substantive vacancies  as  and when vacancies arise in the order of  the list.

   Criteria  taken  together  for  determining  outstanding records of service will be as follows:

   i)  Award of President’s Police Medal and Indian  Police

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Medal, for gallantry and distinguished service.

   ii)  Should  not have been awarded any major  punishment till  the  date  of consideration and order of out  of  turn promotion.

   iii) Very good entries in permanent Character Roll.

   iv)  Citation regarding high standard of  investigation, 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 they join their place of posting noted  against each.  They will not get the advantage of the previous  contained in GOM VII/1966 towards their  seniority in  the rank of Inspector till they are finally selected  by I.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  and  not according  to the rules and made as a stop gap arrangements, the  officiation  on such post cannot be taken into  account for  considering  the  seniority.  In that  case  the  Court relied upon the judgment of the Constitution Bench in Direct Recruit  Class II Engineering Officers Association and  Ors. v.   State of Maharashtra & Ors.  [1990 (2) SCR 900] wherein it was held that:

   "(A)  Once an incumbent is appointed to a post according to  rule,  his seniority has to be counted from the date  of his  appointment  and  not  according to  the  date  of  his confirmation.

   The  corollary  of  the  above rule is  that  where  the initial appointment is only adhoc and not according to rules and  made as a stop gap arrangement, the officiation in such post  cannot  be  taken  into account  for  considering  the seniority.

   (B)  If the initial appointment is not made by following the  procedure  laid  down by the rules  but  the  appointee continues   in   the    post    uninterruptedly   till   the regularisation  of his service in accordance with the rules, the period of officiating service will be counted.

   (C)  When  appointments  are  made from  more  than  one source,  it is permissible to fix the ratio for  recruitment from  the different sources, and if rules are framed in this

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regard they must ordinarily be followed strictly.

   (D)  If it becomes impossible to adhere to the  existing quota  rule, it should be substituted by an appropriate rule to  meet the needs of the situation.  In case, however,  the quota  rule  is  not followed continuously for a  number  of years  because  it was impossible to do so the inference  is irresistible that the quota rule had broken down.

   (E)  Where  the  quota  rule has  broken  down  and  the appointments  are  made  from one source in  excess  of  the quota, but are made after following the procedure prescribed by  the rules for the appointment, the appointees should not be  pushed  down below the appointees from the other  source inducted in the service at a later date.

   (F)  Where the rule permits the authorities to relax the provisions  relating to the quota, ordinarily a  presumption should  be raised that there was such relaxation when  there is a deviation from the quota rule.

   (G) The quota for recruitment from the different sources may  be  prescribed by executive instructions, if the  rules are silent on the subject.

   (H)  If  the  quota rule is prescribed by  an  executive instruction,  and is not followed continuously for a  number of  years,  the inference is that the executive  instruction has ceased to remain operative.

   (I)  The posts held by the permanent Deputy Engineers as well  as the officiating Deputy Engineers under the State of Maharashtra   belonged  to  the   single  cadre  of   Deputy Engineers.

   (J)  The  decision  dealing   with  important  questions concerning   a  particular  service   given  after   careful consideration  should  be respected rather than  scrutinised for  finding  out  any  possible error.  It is  not  in  the interest of service to unsettle a settled position."

   It  is thus evident that Brij Bihari Prasad Singh having been  promoted on officiating basis with a clear stipulation that he will not get seniority in the rank of Inspector till finally  selected could not have preferred a claim regarding his  seniority  on the basis of promotion of  Ramjas  Singh, though initially junior to him yet substantively promoted in accordance  with  Rule 660C on 8.7.1972 whereas Brij  Bihari Prasad  Singh was promoted after selection under Rule 649 in 1978.   The High Court totally ignored the basic  principles governing  the service rules and the mandate of law.   There was,  therefore, no justification of issuing the  directions to  direct  the promotion of Brij Bihari Prasad Singh  while deciding the writ petition No.697 of 1995 and dismissing the LPA  No.1018/95  vide the judgment impugned in  this  appeal filed against Brij Bihari Prasad Singh.

   It appears that the High Court totally lost sight of the fact  that  in  his petitions filed from time to  time  Brij Bihari  Prasad Singh 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 writ petitions should

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have  normally been dismissed unless there existed  specific reasons  for  non  impleadment  of  the  affected   persons. Neither  any reason was assigned by the writ petitioner  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 supersession of 168 Inspectors and 407 Dy.SPs.   The writ  petition  filed  by  Brij Bihari  Prasad  Singh  being totally  misconceived, devoid of any legal force and prayers made  being in 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.  The  appeal of  the State has, therefore, to be allowed by setting aside the impugned judgment.

   Kameshwar  Prasad  Singh respondent in his petition  has preferred  his claim of promotion on the ground of promotion@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of  his junior Brij Bihari Prasad Singh who was impleaded as@@ JJJJJJJJJJJJJJJJJJJ respondent No.6.  He had specifically submitted:

   "That from the facts, law and circumstances stated above it  is  clear that the petitioner was at all material  times senior  to  the  respondent  No.6 and  the  respondent  NO.6 illegally  scored  a  march  over   him  therefore  on   the principles of recognised service jurisprudence on next below rule,  the  petitioner  should be  assigned  seniority  from 27.7.71  and  be confirmed with effect from 2.7.78  and  the petitioner  be  put  just above the respondent no.6  in  the seniority list of Inspector of Police."

   He had prayed that:

   "For issuance of appropriate writ, order or direction to direct  the official respondents to assign seniority in  the rank  of  Inspector  just above the respondent No.6  and  to confirm  on  the post of Inspector with effect  from  2.7.78 when  his junior respondent no.6 has been confirmed and  for grant  of all consequential benefits." The writ petition was disposed of holding Kameshwar Prasad Singh as senior to Brij Bihari  Prasad Singh as Sub Inspector of Police having  been confirmed  as  Inspector  on   1.4.1982  with  observeation: "Subsequently,  whatever the advantage, the respondent  No.6 has  derived in pursuance of different orders of this Court, including  the  orders/judgments passed in CWJC  No.6873/90; 4108/91  and  6975/95,  were  so  obtained  by  him  without impleading the petitioner as part-respondent therein.

   In  this background, while I do not doubt the  decisions given  by this Court in different cases of respondent  No.6, Brij   Bihari   Prasad  and  while  I  do  not   doubt   the consequential   orders  which  have   been  issued  by   the respondents  on the basis, I hold that the petitioner cannot suffer  for  the same and he is entitled for seniority  over the  respondent  No.6  as Inspector of  Police,  though  not promoted,  while the Respondent No.6 was granted officiating promotion by way of stop gap arrangement on 27th July, 1971.

   Accordingly,  the respondents are directed to treat  the petitioner  as senior to the respondent No.6 as Inspector of Police and provide him with the consequential benefit of the same,  including  promotion to the next higher post, if  the petitioner is found fit for the same."

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   The  appeal filed against this judgment was dismissed on the  ground of delay and without consideration of the  pleas raised on facts.  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  other cannot  claim the same illegality or irregularity on  ground of  denial thereof to them.  Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar  benefits.   In this regard this Court in  Gursharan Singh  & Ors.  v.  NDMC & Ors.  [1996 (2) SCC 459] held that citizens  have assumed wrong notions regarding the scope  of Article  14  of the Constitution which  guarantees  equality before  law  to  all citizens.  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 writ petition filed in the High Court.  The Court observed:

   "Neither Article 14 of the Constitution conceives within the  equality  clause this concept nor Article 226  empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue  and perpetuate an illegal procedure or an  illegal order  for  extending similar benefits to others.  Before  a claim  based  on  equality  clause is  upheld,  it  must  be established  by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."

   Again in Secretary, Jaipur Development Authority, Jaipur v.   Daulat  Mal Jain & Ors.  [1997 (1) SCC 35]  this  Court considered  the scope of Article 14 of the Constitution  and reiterated  its  earlier position regarding the  concept  of equality holding:

   "Suffice  it to hold that the illegal allotment  founded upon  ultra  vires and illegal policy of allotment  made  to some  other persons wrongly, would not form a legal  premise to  ensure  it to the respondent or to repeat or  perpetuate such  illegal  order, nor could it be legalised.   In  other words,  judicial process cannot be abused to perpetuate  the illegalities.   Thus considered, we hold that the High Court was  clearly  in error in directing the appellants to  allot the land to the respondents."

   In  State  of Haryana & Ors v.  Ram Kumar Mann[1997  (3) SCC 321] this Court observed:

   "The   doctrine  of  discrimination   is  founded   upon existence of an enforceable right.  He was discriminated and denied  equality as some similarly situated persons had been given  the  same relief.  Article 14 would apply  only  when invidious   discrimination  is  meted   out  to  equals  and similarly  circumstanced  without  any   rational  basis  or relationship  in that behalf.  The respondent has no  right, whatsoever  and cannot be given the relief wrongly given  to them,  i.e., benefit of withdrawal of resignation.  The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination.  If we cannot allow a wrong to perpetrate,  an employee, after committing mis-appropriation

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of  money,  is dismissed from service and subsequently  that order  is  withdrawn and he is reinstated into the  service. Can  a  similarly circumstanced person claim equality  under Section 14 for reinstatement?  The answer is obviously "No". In  a converse case, in the first instance, one may be wrong but  the  wrong order cannot be the foundation for  claiming equality  for  enforcement  of the same  order.   As  stated earlier, his right must be founded upon enforceable right to entitle  him  to  the  equality  treatment  for  enforcement thereof.  A wrong decision by the Government does not give a right  to  enforce  the  wrong order  and  claim  parity  or equality.  Two wrongs can never make a right."

   In  view  of our finding that the judgment of  the  High Court in the case of Brij Bihari Prasad Singh being contrary@@              JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to  law was not sustainable and liable to be dismissed,  the@@ JJJJJJJJJJJJJJJ impugned  judgment  in the case of Kameshwar Prasad  Singh’s case  cannot  be  upheld.    The  aforesaid  respondent  is, therefore,  not entitled to any relief as prayed for by  him on  the analogy of the judgments passed and directions given in Brij Bihari Prasad Singh’s case.

   We  do not agree with the submissions of the respondents that  the question of law raised by the appellants in regard to  determination of seniority could not be permitted to  be raised  as  allegedly  the said point had not  been  pleaded before  the  High Court and is altogether a new point  taken for  the first time in this Court.  As noticed earlier,  the High  Court  had  dismissed the LPAs only on the  ground  of limitation  without  deciding the other pleas raised by  the appellants.  A perusal of LPA No.1018 of 1995 (Annexure P-6) shows that in para 9 the appeallant State had submitted that the  Home  Secretary  of  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  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 of Inspector 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 turn 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

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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 that  very date,  i.e.   27.7.1971 and was confirmed with  effect  from 1.3.1975  on the availability of permanent 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 turn 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  Police  from   25.10.1975.   It  was  an exceptional   case.   This  is   not  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 of officiation 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  IPS   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 appropriate  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 pronouncements  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 made a basis for  conferment  of similar  rights  upon  other persons who are shown  to  have filed  writ petitions or representations which, if accepted,

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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 any 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@@                                                          JJJ directions  that:  (1) Judgments of the learned Single Judge@@ JJJJJJJJJJJJJJJJJ 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 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.